author: OVERTON, Justice.

text:
    E. Edward HOLLOWAY, et al., Appellants, v. LAKELAND DOWNTOWN DEVELOPMENT AUTHORITY, et al., Appellees.
    No. 61295.
    Supreme Court of Florida.
    June 3, 1982.

      Thomas S. Trantham, Bartow, for E. Edward Holloway.
    Quillian S. Yancey, State Atty., and Thomas A. Pobjecky, Asst. State Atty., Tenth Judicial Circuit, Bartow, for the State.
    Julian Clarkson, Tampa, and Edward W. Vogel, III of Holland & Knight, Lakeland, for Lakeland Downtown Development Authority.
    David E. Cardwell, City Atty., and Stephen C. Watson, Asst. City Atty., Lakeland, for the City of Lakeland.
    William S. Turnbull and John H. Adams of Pepper, Hamilton & Scheetz, Orlando, for Florida Downtown Development Ass’n, amicus curiae.
   OVERTON, Justice.

This is a direct appeal from the trial court’s validation of municipal revenue bonds, the proceeds of which are for purchase of property in downtown Lakeland for redevelopment. We have jurisdiction. Art. V, § 3(b)(2), Fla.Const. We find that the subject bonds satisfy both the statutory and constitutional requisites, and affirm their validation.

In 1977, the Florida Legislature created by special act the Lakeland Downtown Development Authority (the authority) to revitalize and preserve property values and to prevent deterioration in the central business district of the city of Lakeland. Ch. 77-588, Laws of Fla. (as amended by ch. 78-549, Laws of Fla.). The Lakeland City Commission, in accordance with that special act, established the boundaries of the authority and, in accordance with the Community Redevelopment Act, chapter 163, part III, Florida Statutes (1979), designated the authority as a community redevelopment agency. The city and the authority thereafter conducted a study of the downtown area within the authority’s boundaries which culminated in a city commission hearing and a finding that a slum or blight condition existed.

The authority thereafter adopted a three-phase redevelopment plan, later approved by the city commission, which provided for a regional shopping center (phase I), a hotel (phase II), and an office building (phase III). Both the city and the authority claimed that the overall plan would affect the downtown area in a positive fashion. This appeal concerns only phase I, the regional shopping center. To implement phase I, the authority planned to issue three series of revenue bonds, series A, B, and C, the proceeds of which would be used to acquire two and one-half city blocks of downtown Lakeland within the authority’s designated boundaries. The property would then be resold to a private concern for construction of the regional shopping center and parking facilities.

The authority subsequently filed a petition in the circuit court to have the bonds validated. A private taxpayer, E. Edward Holloway, and the state, through the state attorney, opposed the validation. The trial court validated the bonds, finding that they satisfied a requisite public purpose and the applicable provisions of chapters 75 and 163, Florida Statutes (1979).

Appellants raise multiple points on appeal; we find that only three merit discussion. The first is whether partial private ownership of redevelopment property purchased with the revenue bonds defeats a public purpose. The second is whether, under chapter 163 and the present facts, there was sufficient evidence of a slum or blighted condition in the redevelopment area. And third is whether the series C bonds are defective because the rate of interest was not specifically set forth in the validation proceedings.

With respect to appellants’ first point, we considered a similar bond issue and whether those bonds served a public purpose in State v. Miami Beach Redevelopment Agency, 392 So.2d 875 (Fla.1980). As in the instant case, part of the plan in that case called for the issuance of revenue bonds for the purchase or condemnation of slum or blighted Miami Beach property, some of which would eventually, after redevelopment, be privately owned. We directly addressed the contention of whether eventual private ownership of purchased or condemned land with revenues derived from the bonds under chapter 163 was constitutional, and concluded that “the use of eminent domain for acquisition and clearance, and substantial private and commercial uses after redevelopment, is in furtherance of a public purpose and is constitutional.” We reaffirm our decision in State v. Miami Beach Redevelopment Agency and our belief that eventual partial private ownership of a redevelopment area under chapter 163 does not defeat the public purpose of eliminating slum and blighted areas within our cities.

Appellants’ second contention is that the subject bonds are invalid because the authority did not sufficiently establish that the proposed shopping center site was in fact a slum or blighted area. Chapter 163 is specific in its criteria. A slum area is defined as follows:

“Slum area” means an area in which there is a predominance of buildings or improvements, whether residential or nonresidential, which by reason of dilapidation, deterioration, age or obsolescence, inadequate provision for ventilation, light, air, sanitation, or open spaces, high density of population and overcrowding, the existence of conditions which endanger life or property by fire or other causes, or any combination of such factors is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency, or crime and is detrimental to the public health, safety, morals, or welfare.

§ 163.340(7), Fla.Stat. (1979). A blighted area is defined as:

“Blighted area” means an area in which there are a substantial number of slum, deteriorated, or deteriorating structures and conditions which endanger life or property by fire or other causes or one or more of the following factors which substantially impairs or arrests the sound growth of a county or municipality and is a menace to the public health, safety, morals, or welfare in its present condition and use:
(a) Predominance of defective or inadequate street layout;
(b) Faulty lot layout in relation to size, adequacy, accessibility or usefulness;
(c) Unsanitary or unsafe conditions;
(d) Deterioration of site or other improvements;
(e) Tax or special assessment delinquency exceeding the fair value of the land; and
(f) Diversity of ownership or defective or unusual conditions of title which prevents the free alienability of land within the deteriorated or hazardous area.

§ 163.340(8), Fla.Stat. (1979).

On the record before us, we find that the authority was careful to follow all of the specific guidelines promulgated in the redevelopment act. The record shows that before the city commission designated the authority as a chapter 163 redevelopment agency, it considered evidence which showed that eighteen percent of the total square footage of all structures in the redevelopment district was vacant, thirty percent was in poor condition, and fifteen percent was occupied but under-utilized. The study indicated that the situation with respect to the total square footage of commercial structures was even worse. It reflected that there are 141 commercial structures in the designated redevelopment area and, excluding two major retail chain stores from calculations, thirty percent of the square footage in the remaining 139 downtown commercial structures was vacant, forty-eight percent was in poor condition, twenty-four percent was under-utilized, and forty-five percent was over fifty years of age. Other evidence showed that the crime rate in the area was higher than in other local areas, forty-one percent of the dwelling units were substandard, and the demand for office and building space was declining. The tax base was also declining in value. The executive director of the authority testified before the commission that the foregoing developments were attributable in part to undesirable street patterns and multiple ownership of property.

We find that the declaration of slum and blight within the authority’s boundaries was proper.

Appellants claim in their final point that the series C bonds are defective because the rate of interest is not specifically set forth. Section 75.04, Florida Statutes (1979), requires that all bond validation complaints set forth “the interest they are to bear.” Appellants assert that the proposed series C bonds do not meet the requirement of this section because the instant bonds do not set a specific ceiling, but, rather, provide that “in no event [shall the bonds] exceed the maximum lawful rate as described in Section 215.84, Florida Statutes (Supp.1980).”

It is the purpose of section 215.84 to allow local government flexibility in setting the rate of interest on revenue bonds so that the bonds will be competitive in the bond market. The section provides a specific formula by which this maximum rate may be calculated. We find that section 215.84 sets a proper and sufficient maximum rate of interest for the instant bonds.

We point out that our present decision is distinguishable from both State v. Leon County, 410 So.2d 1346 (Fla.1982), and State v. Osceola County Industrial Development Authority, No. 61,205 (Fla. June 3, 1982). In the former, the county issued the then subject revenue bonds under the authority of chapter 159, part II, Florida Statutes (1979). Section 215.84 was of no effect because it specifically excepts revenue bonds created under chapter 159. The latter case is of no effect under the instant facts because chapter 163 bonds were not at issue in that case.

For the foregoing reasons, the trial court is affirmed and the bond validation approved.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, ALDERMAN, McDONALD and EHRLICH, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Thomas E. HUNT, Respondent.
    No. 60723.
    Supreme Court of Florida.
    Oct. 28, 1982.

      John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Jacquelyn Plasner Needelman and Cynthia S. Prettyman, Bar Counsels, Fort Lauderdale, of The Florida Bar, for complainant.
    Robert J. O’Toole, Fort Lauderdale, for respondent.
   PER CURIAM.

Pursuant to a petition for clarification filed by the Florida Bar, our opinion of June 10, 1982, is amended to read as follows:

The Florida Bar filed this complaint against respondent, Thomas E. Hunt, on June 6, 1981, asserting various violations of the Code of Professional Responsibility with regard to respondent’s trust moneys. By its order of June 12,1981, this Court temporarily suspended respondent from the practice of law but granted respondent a hearing upon his petition for dissolution of the temporary suspension. The referee has found competent evidence in the record to support the Bar’s application for temporary suspension and has recommended that it remain in force. We accept the referee’s recommendation and deny the petition for dissolution of the suspension. Costs of $486.20 are taxed against respondent.

It is so ordered.

ADKINS, Acting C. J., and OVERTON, ALDERMAN, McDONALD and EHRLICH, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Thomas E. HUNT, Respondent.
    No. 60846.
    Supreme Court of Florida.
    June 10, 1982.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Jacquelyn Plasner Needelman and Cynthia S. Prettyman, Bar Counsels, and Gary S. Barber, Chairman, Seventeenth Judicial Circuit Grievance Committee “B”, Fort Lauderdale, of The Florida Bar, for complainant.
    Robert J. O’Toole, Fort Lauderdale, for respondent.
   PER CURIAM.

The Florida Bar charged one of its members, Thomas E. Hunt, with neglecting a legal matter entrusted to him. The referee found that respondent Hunt was guilty of violating disciplinary rules 6-101(A)(3) and 1-102(A)(6) and, finding that respondent had a previous disciplinary record, recommended that respondent be suspended from the practice of law “for a period of not less than one hundred and twenty (120) days.”

Another disciplinary proceeding is presently pending against respondent in The Florida Bar v. Hunt, 417 So.2d 966 (Fla. 1982), in which respondent has been temporarily suspended. We approve the referee’s findings in the instant matter and suspend respondent for six months and thereafter until he furnishes proof of rehabilitation. The suspension shall commence at the termination of the temporary suspension ordered in Case No. 60,723 unless otherwise ordered in that case. Respondent shall pay the cost of these proceedings, $654.53.

It is so ordered.

ADKINS, Acting C. J., and OVERTON, ALDERMAN, McDONALD and EHRLICH, JJ., concur.


author: BOYD, Justice. ALDERMAN, Justice,

text:
    COUNTY OF VOLUSIA, a political subdivision of the State of Florida, Appellant. v. The STATE of Florida, and the taxpayers, property owners, and citizens of the County of Volusia, including nonresidents owning property or subject to taxation therein, et al., Appellees.
    No. 61267.
    Supreme Court of Florida.
    June 10, 1982.
    Rehearing Denied Aug. 30, 1982.
    Daniel R. Vaughen, Asst. County Atty., DeLand, and David A. Monaco of Cobb & Cole, Daytona Beach, for appellant.
    Stephen L. Boyles, State Atty., and Jeffrey L. Dees, Asst. State Atty., Seventh Judicial Circuit, DeLand, and C. Allen Watts, DeLand, for appellees.
    Craig T. James, DeLand, for Alfred Hay-man, appellee/intervenor.

      Harry A. Stewart, Gen. Counsel and Susan F. Delegal, Asst. Gen. Counsel, Fort Lauderdale, for Broward County, amicus curiae.
    Richard E. Nelson of Nelson, Hesse, Cyril, Weber, Smith & Widman, Sarasota, for Sarasota County, amicus curiae.
   BOYD, Justice.

This cause is before the Court on appeal from a judgment of the circuit court denying the complaint of the County of Volusia for validation of capital improvement bonds in the amount of $40,000,000. We have jurisdiction. Art. V, § 3(b)(2), Fla.Const.

The county seeks to issue the bonds to finance construction of a jail to be located on Indian Lake Road eleven miles from DeLand, the county seat. The payment of the bonds is to be secured by the county’s pledge of all legally available, unencumbered sources of county revenue including all money derived from regulatory fees and user charges assessed by the county. The county also covenants to do all things necessary to continue receiving the various revenues pledged.

The trial court found the proposed bond issue to be unlawful on three grounds. The court determined that most of the various revenues from regulatory fees and user charges could not be pledged to the payment of the bonds because such county revenues may not be diverted from their lawful purposes, which are to defray the costs incurred by the county in providing the services to which the various fees and charges relate. Second, the court found that the pledge of all legally available revenues other than ad valorem taxation would have the effect of requiring the levy of increased ad valorem taxation so that, under article VII, section 12, Florida Constitution, the bonds may not be issued without approval of the eligible voters by referendum. Third, the court held that the purpose of the bond issue is improper in that the construction of a county jail eleven miles outside the county seat would violate article VIII, section l(k), Florida Constitution and section 138.09, Florida Statutes (1981).

The County of Volusia argues that the trial court was wrong on all three counts and asks that we reverse and order the bonds validated so that it can proceed with construction of the much-needed jail. We affirm the trial court’s judgment denying validation. We hold that the pledge of all the legally available, unencumbered revenues of the county other than ad valorem taxation, along with a covenant to do all things necessary to continue receiving the revenues, as security for the bonds, will have the effect of requiring increased ad valorem taxation so that a referendum is required. Our disposition of the case on this ground makes it unnecessary to reach and settle the questions of whether the various non-ad valorem revenues may be pledged to the financing of a jail facility. We will address the question of the legality of locating the new jail eleven miles outside the county seat in order to provide guidance for the future actions of the parties.

We will discuss first the location issue, and then explain the reasons for our holding on the dispositive issue, that this bond issue requires a referendum.

I.

The trial court held that the proposal to build the jail eleven miles away from the county seat was violative of article VIII, section l(k), which provides that the principal offices and permanent records of all county officers shall be located at the county seat, and section 138.09, Florida Statutes (1981), which requires the county commissioners to erect a courthouse and a jail at the county seat.

The county has a courthouse and a jail both located in DeLand, the county seat. The jail in DeLand is used generally for pretrial detention purposes, while a separate correctional facility for sentenced prisoners in the county’s custody has been constructed and is located at or adjacent to the site proposed for the new jail, eleven miles from DeLand.

Although article VIII, section l(k), Florida Constitution, requires that the principal offices and permanent records of all county officers be located at the county seat and section 138.09 requires the county commissioners to erect a courthouse and a jail at the county seat as soon as the county seat has been decided upon by the electors, we note that section 138.12, Florida Statutes (1981), permits county commissioners to expand the geographical area of county seats without expanding the boundaries of the municipality named as the county seat. If the Volusia County Council exercises its authority under section 138.12 and expands the county seat to include the Indian Lake Road location, the new jail lawfully could be the “county jail” of Volusia County.

Also, without expanding the geographic area of its county seat, Volusia County could lawfully locate the new jail on Indian Lake Road if it were in fact a branch jail. Article VIII, section l(k), Florida Constitution, provides for the establishment of branch offices outside the county seat. The fact that the new jail would be larger than the present “county jail” in DeLand would not necessarily preclude it from being designated a branch jail, if the county should elect to maintain the “county jail” in DeLand.

II.

We discuss now the dispositive issue and hold that the pledge of all legally available, unencumbered revenues — i.e., all revenues, other than ad valorem taxation, which the governing body has the authority to spend or pledge at its discretion — calls into play the referendum requirement of article VII, section 12 because it in effect constitutes a promise to levy ad valorem taxes. The county correctly states that this Court has approved pledges of various local government revenue sources without referendum even though the encumbrance of the funds would have an incidental effect on the exercise of the ad valorem taxing power. State v. Alachua County, 335 So.2d 554 (Fla.1976); Town of Medley v. State, 162 So.2d 257 (Fla.1964). In Town of Medley v. State, 162 So.2d 257 (Fla.1964), a municipality proposed to construct a water supply system and building together with storm sewers and streets and to finance these improvements by the sale of revenue bonds. As security for the payment of the bonds, the town pledged to their retirement the revenues to be earned by the water system, together with revenues from the following four specific sources: the proceeds from cigarette taxes, a municipal utility franchise tax, utilities taxes, and occupational license taxes. The bond issue was challenged on the ground that diverting these revenues from the town’s general operating fund would require increased ad valorem taxes in order to replace those funds, and that such a result required approval by referendum. This Court responded:

Only bonds or certificates of indebtedness which directly obligate the ad valo-rem taxing power are encompassed by [the constitutional referendum requirement]. The incidental effect on use of the ad valorem taxing power occasioned by the pledging of other sources of revenue does not subject such bonds or certificates to that constitutional requirement.

162 So.2d at 258. The Court said that to hold otherwise would prevent a local government from pledging non-ad valorem funds previously used for general operating expenses without a referendum, a result not required in light of the purpose of the constitutional requirement.

In State v. Alachua County, 335 So.2d 554 (Fla.1976), we held that the county’s pledge of its annual revenue sharing funds and its annual share of state race track funds to the repayment of bonds issued to finance various capital projects and public improvements without referendum did not violate article VII, section 12. Citing Town of Medley v. State as authority, we again held that only a direct pledge of, and not indirect impact on, the ad valorem taxing power required referendum approval.

The present ease differs from both Town of Medley v. State and State v. Alachua County. One point of distinction is that here the county has attempted to pledge all legally available revenue sources other than ad valorem taxation, rather than several specific sources. Secondly, here the county has further promised to fully maintain the programs and services which generate the service fees and user charges. To maintain all of the programs that produce the revenues, while devoting the revenues themselves to the retirement of the bonds, will inevitably require that ad valorem taxes be increased so that the county will have sufficient operating revenue to maintain the programs and services that generate the pledged revenues.

In State v. Halifax Hospital District, 159 So.2d 231 (Fla.1963), a special district with ad valorem taxing power attempted to pledge as security for bonds all of its available revenues. The district also covenanted to fully maintain its operations in order to ensure that it continued to receive the pledged revenues. The general operations of the district were funded through ad valo-rem taxation. This Court held that the district’s pledge of all available non-ad valo-rem revenues, together with the promise to maintain all operations during the life of the bonds, would have more than mere incidental effect on the ad valorem taxing power. The Court held that therefore the bonds could not be validated without the approval of the voters.

That which may not be done directly may not be done indirectly. See, e.g., State v. Halifax Hospital District, 159 So.2d 231 (Fla.1963). While the county has not directly pledged ad valorem taxes to the payment of the bonds, its pledge of all other available revenues, together with its promise to do all things necessary to continue to receive the various revenues, will inevitably lead to higher ad valorem taxes during the life of the bonds, which amounts to the same thing. We find in this case that the pledge of all available revenues, together, with a promise to maintain the programs entitling the county to receive the various revenues, will have a substantial impact on the future exercise of ad valorem taxing power and brings this case within the rule of Halifax Hospital District. The taxpayers of Volusia County must have an opportunity to vote on the bond issue.

In summary, we hold that the county may build a jail eleven miles outside the county seat either by expanding the county seat or by maintaining the new jail as a branch jail. In view of our decision holding the bond issue unlawful, we need not decide the validity of the various sources of revenue (regulatory fees and user charges) pledged to the payment of the bonds. We hold, finally, that the pledge of all available funds has more than a mere incidental effect on the exercise of ad valorem taxing power and requires a referendum under article VII, section 12.

Accordingly, the order denying validation is affirmed.

It is so ordered.

SUNDBERG, C. J., and McDONALD and EHRLICH, JJ., concur.

ALDERMAN, J., dissents with an opinion, in which ADKINS and OVERTON, JJ., concur.

ALDERMAN, Justice,

dissenting.

I would reverse the trial court and remand with directions that these bonds be validated.

I agree with the majority that Volusia County may build the proposed new jail outside the municipal boundaries of its county seat without violating article VIII, section l(k), Florida Constitution, and section 138.09, Florida Statutes (1981). It could accomplish this by expanding the geographic area of DeLand as provided by section 138.12, Florida Statutes (1981). Alternatively, without expanding the geographic area of the county seat, Volusia County could lawfully locate the new jail outside the municipal boundaries of DeLand if the “county jail” was maintained in DeLand and if the new jail was in fact a branch jail.

I disagree, however, with the majority’s conclusion that these bonds require referendum approval under article VII, section 12, Florida Constitution. This Court has repeatedly upheld the validity of pledges of local non-ad valorem revenue sources without referendum approval. In State v. Tampa Sports Authority, 188 So.2d 795 (Fla. 1966), we affirmed the trial court’s validation of bonds to be issued for the development and maintenance of a sports facility where the city and county agreed that repayment of the bonds should be from available moneys derived from sources other than the proceeds of ad valorem taxation. Citing State v. City of Jacksonville, 53 So.2d 306 (Fla.1951), we said:

We have repeatedly held that when certificates of indebtedness are for an authorized public purpose and are payable solely from revenues derived from utilities service, excise taxes, licenses or some other source than ad valorem taxes, they may be issued without an approving vote of the freeholders as required by Section 6, Article IX of the Constitution.

188 So.2d at 797. See also State v. Monroe County, 81 So.2d 522 (Fla.1955).

We have upheld such pledges by local governments even though ad valorem taxes probably would be affected. In Town of Medley v. State, 162 So.2d 257 (Fla.1964), the trial court denied validation of public improvement revenue bonds which were to be repaid with revenues from a proposed water system, proceeds of the cigarette tax, franchise taxes on electric power, utility taxes, and occupational license taxes. Although no ad valorem taxes were pledged and the ordinance authorizing the bond issue specifically provided that the town would not be obligated to levy ad valorem taxes for repayment of the bonds, the trial court concluded that validation of the bonds would result in an increase in real property taxes without vote of the freeholders. In reversing the order denying validation, this Court held:

In any instance in which a municipality has been using funds from special non-ad valorem sources of revenue to meet its operating costs and then diverts those funds by pledging them to payment of a specific indebtedness as done here, the result will probably be that ad valorem taxes will have to be increased to make up the deficiency in funds available for operating expenses.
Nevertheless, this result does not make the revenue bonds or certificates subject to the provisions of Section 6, Article IX, of our State Constitution, F.S.A. A contrary holding would mean that any pledging of non-ad valorem revenues previously used for the general operating expenses of a municipality would require approval by vote of the freeholders and such was never the purpose of the cited constitutional provision.
Only bonds or certificates of indebtedness which directly obligate the ad valo-rem taxing power are encompassed by Section 6, Article IX, Fla.Const. The incidental effect on use of the ad valorem taxing power occasioned by the pledging of other sources of revenue does not subject such bonds or certificates to that constitutional requirement.

162 So.2d at 258. More recently, we reaffirmed this position in State v. Alachua County, 335 So.2d 554 (Fla.1976).

This issue is not governed by State v. Halifax Hospital District, 159 So.2d 231 (Fla.1963), wherein we declined to affirm validation of hospital improvement bonds to be repaid from gross revenues of the hospital. In that case, we held that the hospital’s pledge of all gross revenues coupled with its pledge not to reduce during the life of the bonds the currently assessed ad valo-rem tax levy for maintenance and operation of the hospital required referendum approval. We found that the hospital’s pledge of ad valorem taxes was as much an obligation of the bond resolution as was the pledge of the gross revenues. Volusia County, unlike the Halifax Hospital District, has not expressly pledged ad valorem taxes to continue the operation of those governmental functions needed to generate the revenues to repay the bonds.

In the present case, as in Town of Medley and Alachua County, the authorizing documents specifically state that the ad valorem taxing power is not directly pledged to repayment of the bonds and such repayment cannot be compelled by the bondholders. The pledge of non-ad valorem funds results in a diversion of funds from the county’s general revenue and probably will require ad valorem taxes to be increased to make up the deficiency in funds available for operating expenses, but I would hold, as we did in Town of Medley and Alachua County, that such an incidental effect on Volusia County’s ad valorem taxing power does not require referendum approval pursuant to article VII, section 12 of the Florida Constitution.

With its disposition of the referendum issue, the majority found it unnecessary to pass on the correctness of the trial court’s finding that the county had unlawfully pledged its regulatory and user fees. Because, in my view, a referendum is not required, it becomes necessary to resolve this issue. I find that the trial court wrongly decided that the pledge of the regulatory and user fees was invalid.

Since the regulatory and user fees pledged are ostensibly collected by virtue of the police power to offset the costs of certain regulatory and governmental services provided by the county, the trial court con-eluded that use of these fees to pay the bondholders would amount to an unlawful diversion of funds because such use would be wholly unrelated to the purposes for which they were collected and that these fees would, in effect, become non-ad valo-rem taxes not authorized by statute and therefore in violation of article VII, section 1, Florida Constitution.

The trial court based its holding on several decisions which I find to be inapposite to the present validation proceeding. The first three deal with impact fees and are not bond validation cases. Broward County v. Janis Development Corp., 311 So.2d 371 (Fla. 4th DCA 1975), involved a challenge by several land development corporations to the legality of a county ordinance imposing a land use fee which had to be paid before the developers could build. The district court determined that the fee was an improper tax. It explained that the ordinance contained no specifics as to where and when the moneys were to be expended and that the anticipated revenue that would be generated the first year far exceeded any cost of regulation.

Contractors & Builders Ass’n of Pinellas County v. City of Dunedin, 329 So.2d 314 (Fla.1976), involved a challenge by building contractors and owners of land within Dunedin’s city limits to the legality of an ordinance authorizing the municipality to charge an impact fee for the privilege of connecting to its water and sewer system. Plaintiffs contended that the fees collected upon issuance of the building permits and earmarked for expansion of the water and sewage system as a whole constituted unlawful taxes. Although finding that the connection fees were not taxes, we held that a revenue-producing ordinance must explicitly set forth restrictions on the revenues it generates where such restrictions are essential to its validity and that the ordinance was defective for failing to spell out the necessary restrictions on the use of fees authorized by the ordinance. Absent express limiting language in the authorizing ordinance, we determined, there would be no check on the accounting for and the application of the revenue for its intended purpose.

Christian & Missionary Alliance Foundation, Inc. v. Florida Cities Water, 386 So.2d 543 (Fla.1980), concerned a Public Service Commission order requiring a developer to pay a water unit connection charge which was a new service availability charge. In challenging the commission’s order, the developer relied on Contractors & Builders Ass’n and argued that the service availability charge was invalid because the use of the funds was not limited. We affirmed the commission’s order and distinguished Contractors & Builders Ass’n on the basis that it involved a municipal utility not regulated by the commission.

In addition to the three impact fee cases, the trial court cited McGovern v. Lee County, 346 So.2d 58 (Fla.1977), a bond validation case, for the principle that the pledge of the fees must bear a reasonable relation to the purpose or subject matter for which the fees are presently collected. McGovern, however, was a chapter 159 bond issue involving a self-liquidating project. Therein, we emphasized these two factors in reversing the trial court’s validation of the Sani-bel Bridge improvement bonds. We held that inherent in the scheme of chapter 159 for funding self-liquidating projects is the principle that those who substantially benefit from the project should pay the cost. Using a chapter 159 bridge as a self-liquidating project to pay for improvements, we said, requires a finding of benefit to those who use the bridge. In other words, a sufficient and direct relationship between the use of the toll bridge and the use of the Sanibel projects must be shown. We concluded that the record failed to establish that the majority of the improvements would make any significant contribution to traffic over the bridge, and thus using the toll to pay for the proposed bonds would place an undue burden on island residents and visitors.

The trial court also relied upon Chase v. City of Sanford, 54 So.2d 370 (Fla.1951), another bond validation case. In Chase, the bond issue was for the construction and operation of a port terminal facility and was authorized by Special Act 26466, Acts 1949, Extraordinary Session. The bonds were to be payable solely from a special fund composed of net revenues from operation of the port terminal and net proceeds of the city’s parking meter revenues. The principal issue in that case was whether or not the provisions obligating the net proceeds of the city’s parking meter revenues to the servicing of the port terminal bonds were valid. Holding the provisions of the bonds and enabling legislation invalid, we emphasized that the enabling legislation expressly required the city to maintain the existing parking meters at their present locations and to maintain the present system of rates and charges as long as the port terminal bonds remain unpaid and that this amounted to the city’s contracting away its authority, under the police power, to regulate traffic.

In the present case, as distinguished from the impact fee cases, there was no challenge on the ground that the regulatory and user fees exceeded the reasonable cost of the regulation or services to be performed. The trial court did not find that the amount of any particular fee charged for a particular regulation or service exceeded the cost of the regulation or service. If any of the fees constituting a portion of the pledged non-ad valorem revenues is subsequently successfully challenged by those having to pay the fee on the basis that it is an unlawful tax, then it would no longer be a portion of the “legally available,” unencumbered non-ad valorem revenues pledged to repayment of the bonds. Any such individual challenges on this basis are issues collateral to this bond validation proceeding.

In the present case, as distinguished from Chase, Volusia County is not precluded from reducing the amount or rate of the non-ad valorem funds as long as the funds collected by the county are sufficient to make the bond payments. Nor is the county obligated to maintain each and every department or any particular department.

Furthermore, the new jail facility in Vol-usia County is not a self-liquidating project as were the projects in McGovern and Chase, and here, as distinguished from those cases, the county proceeded solely under chapter 125 as authority for issuance of the bonds. We have repeatedly held that a county may elect to proceed solely under the provisions of chapter 125. See e.g. Speer v. Olson, 367 So.2d 207 (Fla.1978). Nothing in general or special law precludes Volusia County from pledging these legally available, unencumbered non-ad valorem revenues to the repayment of these bonds. In fact, this Court has approved the pledge of similar revenues where the revenues are not necessarily related to the improvements to be financed by the bond issuance. See e.g. State v. Alachua County; Town of Medley v. State; Panama City v. State, 93 So.2d 608 (Fla.1957); State v. Monroe County; State v. City of Coral Gables, 72 So.2d 48 (Fla.1954). I conclude that the trial court erred in finding that the pledge of the regulatory and user fees was invalid.

Accordingly, I would reverse the trial court’s order and remand with directions that these bonds be validated.

ADKINS and OVERTON, JJ., concur.

      . Article VII, section 12, provides:
      Counties, school districts, municipalities, special districts and local governmental bodies with taxing powers may issue bonds, certificates of indebtedness or any form of tax anticipation certificates, payable from ad va-lorem taxation and maturing more than twelve months after issuance only: (a) to finance or refinance capital projects authorized by law and only when approved by vote of the electors who are owners of freeholds therein not wholly exempt from taxation....

      . Article VIII, section l(k) provides:
      COUNTY SEAT. In every county there shall be a county seat at which shall be located the principal offices and permanent records of all county officers. The county seat may not be moved except as provided by general law. Branch offices for the conduct of county business may be established elsewhere in the county by resolution of the governing body of the county in the manner prescribed by law. No instrument shall be deemed recorded in the county until filed at the county seat according to law.

      .Section 138.09, Florida Statutes (1981), provides:
      The county commissioners shall, within 5 days after the election provided for in s. 138.-07 is held, meet and publicly canvass the same, and the place receiving the majority of all the votes cast shall be the county seat for the next 10 years, and the said county commissioners shall erect, as soon as possible, a courthouse and jail, and provide suitable offices for all the county officers who are required by law to keep their offices at the courthouse at the place so selected as the county seat aforesaid.

      . As the trial court correctly found, the evidence amply supports the county’s determination of the need for a new facility. The present county jail located in DeLand is inadequate to hold the county’s average daily presentence prisoner population of 368. A federal court order has placed a temporary limit of 192 on the prisoner population at the jail because of perceived violations of federal constitutional standards by existing conditions at the jail. The remaining presentence prisoners are housed in the county’s correctional facility and in leased space in the jails in Daytona Beach and New Smyrna Beach. The county has concluded that enlarging the jail in DeLand by adding two floors would be too costly and inadequate to meet its present or projected needs for space. Designed to meet the county’s current and projected presentence prisoner population needs into the 1990s, the new facility would contain over 260,000 square feet, cover about seven acres, and hold 601 prisoners. A master plan being considered by the county council provides that, in addition to the jail and correctional facilities, the Indian Lake Road location eventually would include the sheriff’s offices, criminal courtrooms, judges’ chambers, clerk’s offices, state attorney and public defender offices, court reporters’ offices, and other related offices.

      . Section 138.12 provides:
      The board of county commissioners of any county may expand the geographical area of the county seat of its county beyond the corporate limits of the municipality named as the county seat by adopting a resolution to that effect at any regular or special meeting of the board. Such a resolution may be adopted only after the board has held not less than two public hearings on the proposal at intervals of not less than 10 or more than 20 days and after notice of the proposal and such meetings has been published in a newspaper of general circulation in the county. However, nothing herein shall be deemed to extend the boundaries of the municipality in which the county seat was previously located or annex to such municipality the territory added to the county seat.

      . The trial court did acknowledge that fees collected by the sheriff for the performance of civil functions and fees collected by the clerk of the court can properly be pledged because they bear a reasonable relationship to the new jail facility.


author: SUNDBERG, Justice. BOYD, Justice,

text:
    G. E. G., a Child, Petitioner, v. STATE of Florida, Respondent.
    No. 59948.
    Supreme Court of Florida.
    July 15, 1982.

      Richard L. Jorandby, Public Defender and Cherry Grant, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen. and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for respondent.
   SUNDBERG, Justice.

The typical drug possession case finds the defendant contesting on appeal the admission into evidence of the substance allegedly possessed. This case presents the antipodal issue: petitioner challenges the nonin-troduction of a substance marked for identification and about which there was testimony that it was marijuana, but which was not introduced into evidence.

Upon receiving a tip from petitioner’s stepfather that a “pot party” was going on in a neighbor’s house, police looked in a window and saw petitioner put in his pocket a plastic bag containing a brown substance. The officers asked petitioner to come onto the porch, searched him, found the plastic bag, and conducted a Voltex test which indicated the brown substance was marijuana. Petitioner, sixteen years old when he was arrested, received a juvenile adjudicatory hearing. Prior to the hearing petitioner moved to suppress the substance seized from him. By stipulation the evidence heard on the motion to suppress was merged into the hearing on the merits. Up to a certain point the adjudicatory hearing proceeded normally, with the state presenting evidence of chain of custody, presumably as a predicate for chemical analysis testimony and the eventual introduction into evidence of the plastic bag containing the brown substance marked as an exhibit. During the suppression phase of the hearing the state examined the arresting officers in considerable detail concerning the search, seizure, and arrest and the chain of custody of the brown substance. Following cross-examination both parties argued to the judge the legality of the search, seizure, and arrest. Satisfied of no fourth amendment violation, the judge denied petitioner’s motion to suppress. The hearing proceeded with the state continuing to establish chain of custody and introducing testimony of a chemist that the brown substance was marijuana. Then, surprisingly, the state rested its case without attempting to admit the much-discussed exhibit or any other item of physical evidence. The trial judge determined that petitioner violated section 893.-13(1), Florida Statutes (1977), by unlawfully possessing less than five grams of cannabis. He adjudicated petitioner delinquent and committed him to the Division of Youth Services for an indeterminate period not to extend beyond his twenty-first birthday.

The District Court of Appeal, Fifth District, affirmed, expressly declining to follow a sibling court’s holding that the failure to introduce the controlled substance in a drug possession case is a per se denial of a defendant’s right of confrontation. In the Interest of G.E.G. v. State, 389 So.2d 325 (Fla. 5th DCA 1980). We have jurisdiction to resolve this conflict. Art. V, § 3(b)(3), Fla.Const. Our analysis must include an examination of the policy behind the introduction of physical evidence and the consequences of ruling either that physical evidence must always be introduced or that it need never be introduced. Taking a Solomonic rather than an absolute approach, we hold that when a defendant is charged with possession of a controlled substance, that substance, if available, must be introduced into evidence but that a defendant who fails to object to its nonintroduetion may not be heard to complain of the error on appeal.

Sir William Blackstone would no doubt have found our present dilemma needless and the answer obvious:

[T]he one general rule that runs through all the doctrine of trials is this, — that the best evidence the nature of the case will admit of shall always be required, if possible to be had; but, if not possible, then the best evidence that can be had shall be allowed. For if it be found that there is any better evidence existing than is produced, the very not producing it is a presumption that it would have detected some falsehood that at present is concealed.

3 W. Blackstone, Commentaries * 368 (footnote omitted). For us it is not so easy. In Florida the “best evidence rule” only applies to writings, recordings, and photographs. But the fact that we are no longer fettered by the letter of Blackstone’s words hardly implies that we are not free to be persuaded by their spirit.

We use Blackstone’s principle and the practicalities of modern trial practice to steer a course between two equally undesirable absolutes. An absolute rule that a substance may be introduced or not at the discretion of the prosecutor is practically undesirable because of its potential for abuse. For example, such prosecutorial discretion could deliberately or unwittingly be used to confuse defense counsel and thwart the ability to make certain objections, particularly objections to chain of custody. A defense attorney might wait for the proper moment for an objection, the moment when the state offers the substance into evidence, only to find that the moment never arrives because the state has exercised its discretion in favor of nonintroduction. Counsel’s efforts to preserve the case for appellate review would therefore be frustrated.

In addition to infecting trials with tactical or fortuitous confusion, an absolute holding that a substance need never be introduced into evidence would have another undesirable consequence. The state’s failure to introduce the substance in evidence against the defendant might put the defendant in the awkward position of introducing it himself should he wish to challenge its authenticity where there has been testimony of its existence as here. We are therefore all the more unwilling to give nonintroduction our absolute imprimatur.

For equally practical reasons we eschew the extreme posture of raising to the level of fundamental error the failure to introduce a substance. We therefore require a defense objection to the nonintroduction. Since the failure to introduce the substance would no doubt in most cases be the result of prosecutorial oversight, it is only fair that the defendant be required to put the trial court on notice that error has occurred. Castor v. State, 365 So.2d 701 (Fla.1978). The situation illustrated by the present case is a classic example of how it is both possible and desirable “to cure early that which must be cured eventually.” Id. at 703. Upon objection by the defendant a trial court would undoubtedly permit the state to reopen its case to offer the contraband as evidence. If the substance is in no way faulty, its introduction into evidence can only help the state’s case. If it is faulty, Blackstone’s presumption is vindicated, and the state should not be allowed to rest its hopes for a conviction on the chance that the fault will go undiscovered.

Petitioner in this case failed to raise an objection which would put the trial court on notice of possible error and preserve the point for appellate review. Defense counsel’s motion for judgment of acquittal contained two grounds: (1) defective chain of custody, and (2) absence of proof that the substance was marijuana. Petitioner urges that this second ground is tantamount to an objection to nonintroduction, but a review of the record reveals that defense counsel’s argument to the trial judge was premised not upon the state’s failure to introduce the substance but upon an erroneous belief that the chemist failed to testify that the substance was marijuana. We therefore agree with the District Court of Appeal, Fifth District, that petitioner is entitled to no relief, but we disagree with its reasons for so holding.

Petitioner raises a second issue in which he asserts that the judge improperly issued the order of commitment for an indeterminate period of time not beyond petitioner’s twenty-first birthday, rather than for the sixty-day maximum he would have received if an adult and which the trial judge indicated at the disposition hearing he would impose. The state counters that we should remand for clarification of this inconsistent commitment order. The trial judge obviously was aware that section 39.-11(3), Florida Statutes (Supp.1978), did not become effective until October 1,1978, thirty-three days after petitioner’s commitment order. The amended statute would limit petitioner’s commitment to the earlier of a period not longer than an adult could have been sentenced for the same offense, or until his nineteenth birthday. The judge indicated that because the commitment would extend beyond the amended statute’s effective date, he would limit the commitment to sixty days. The commitment here was ordered prior to the effective date of the 1978 amendment and is thus proper, cf. In re J. R, 405 So.2d 497 (Fla. 4th DCA 1981) (not denial of equal protection for juvenile probation to exceed maximum allowable to adult), but we must nevertheless remand this case to the trial court for clarification of why the written order differed from the commitment which had been orally indicated. See Morgan v. State, 365 So.2d 172 (Fla. 2d DCA 1978). The trial court should clarify its intent and, if necessary, correct its order.

In conclusion, we disapprove both the decision of the District Court of Appeal, Third District, in Alexander and the decision of the District Court of Appeal, Fifth District, in this case, to the extent they are inconsistent with our views as expressed above. The case is remanded to the district court with instructions to remand to the trial court for action consistent with our opinion. It is so ordered.

ALDERMAN, C. J., and OVERTON and McDONALD, JJ., concur.

BOYD, J., concurs in part and dissents in part with an opinion, in which ADKINS, J., concurs.

BOYD, Justice,

concurring in part and dissenting in part.

I concur in the Court’s decision to approve the holding of the district court, which affirmed petitioner’s adjudication of delinquency. I dissent from the general rule requiring introduction of contraband evidence and requiring the defendant to point out a deficiency in the state’s case.

Notwithstanding Blackstone’s pronouncements on the subject, it has long been an established principle of American jurisprudence that the best evidence rule applies only to written documents and not to tangible objects. 1 Underhill’s Criminal Evidence, § 101 (6th ed. 1973); 4 Wigmore on Evidence, § 1181 (3d ed. 1972). The distinction is based on the understanding that a person’s ability to recall the appearance of an object is usually greater than his ability to recall all the words of a written document. Because variation of just a few words can totally change the effect of a written document, it is recognized that the document itself is the most accurate, and perhaps the only reliable, evidence of the contents.

This rationale for the best evidence rule does not apply to physical objects, not even contraband evidence like controlled substances. To prove that an object found in the possession of the accused is a controlled substance, the state must present the testimony of a qualified expert. The testimony of a non-expert, based on simple observation, will not be enough to establish whether an object is a controlled substance under section 893.03, Florida Statutes (1981). It is the testimony of the expert witness, and not the substance itself, that is the essential item of evidence proving the nature of the substance. With regard to substances that are not contraband, an expert’s description is usually admissible without the introduction of the substance itself. 1 Underhills’ Criminal Evidence, § 103 (6th ed. 1973).

In connection with the present case, it is interesting to note that the 1982 legislature has addressed the question of controlled substances as tangible evidence in criminal trials. Chapter 82-88, Laws of Florida, provides for seized quantities of controlled substances to be “sample tested and weighed,” with the samples and analyses being admissible in evidence to prove “the nature, composition, and weight of the substance seized.” The act provides that quantities of seized substances other than the retained test sample may be destroyed.

I do not believe that the decision of this case requires the fashioning of such a general rule as the majority, in its Solomonic wisdom, attempts to develop. Here the judge who ruled on the admissibility of the evidence was also the trier of fact. He saw the physical evidence, heard testimony identifying it and establishing the chain of custody, and heard expert testimony establishing that it was cannabis. For all practical purposes, although not formally, the cannabis was in evidence in the sense that it was placed before the eyes of the trier of fact along with identifying and authenticating testimony. Thus we need not be concerned with fashioning a general rule. In cases tried to a jury, where the defense challenges the admissibility of tangible evidence, the jury, if defense counsel does his job correctly, will not see the evidence nor even hear it referred to unless and until it has been ruled admissible by the court.

The majority suggests as one reason for its general rule the right of the defendant to examine and challenge the substance offered as evidence of illegal possession. However, the defendant’s interest in challenging the authenticity of the evidence is fully protected by the criminal rules governing discovery. See Fla.R.Crim.P. 3.220(a). Therefore there is no need, as far as the defendant is concerned, for a general rule requiring that the controlled substance itself be admitted into evidence.

The foregoing remarks indicate my reasons for disagreement with the majority’s general rule requiring the presentation of the controlled substance as tangible evidence. If, however, there are cases where it must be held as a matter of law that the evidence of guilt is insufficient without the introduction of the actual physical substance possessed, then I am deeply troubled by the Court’s holding that the defendant must point out the evidentiary insufficiency to the court and to the state. The Court’s suggestion that upon objection, the trial court would allow the state to reopen its case to remedy the evidentiary deficiency embarks upon a new line of authority. This sets a precedent for allowing the state to reopen its case when a defendant’s motion for judgment of acquittal points out the state’s failure to present sufficient evidence. This newly imposed duty of defense counsel conflicts with the principle that the burden of proof is on the state and with the lawyer’s duty to act in the best interest of his client. It is tantamount to asking defense counsel to perform the state’s job. Cf. Stuart v. State, 360 So.2d 406 (Fla.1978) (defense counsel is not required to inform the court of imminence of speedy trial rule violation).

In summary, I would simply hold that there was sufficient evidence to support the adjudication of delinquency and that petitioner was not prejudiced by the nonintro-duction of the physical evidence. See United States v. Cadena, 585 F.2d 1252 (5th Cir. 1978). On this basis I would approve the decision of the district court of appeal.

ADKINS, J., concurs.

      . Alexander v. State, 288 So.2d 538 (Fla. 3d DCA 1974).

      . We are mindful that in Roberts v. State, 164 So.2d 817 (Fla.1964), the only case in which this Court has addressed a similar issue, we found no error in the failure of the state to introduce a test bullet into evidence. Roberts is distinguishable and therefore unaffected by our decision today. Roberts was not trying to defend a charge of possessing the test bullet, nor was the test bullet actual physical evidence of the crime, such as the fatal bullet itself, which was introduced. Similarly unaffected by our decision are cases excusing the nonintro-duction of evidence because of unavoidable destruction of the substance during testing. See, e.g., State v. Atkins, 369 So.2d 389 (Fla. 2d DCA 1979). Unavoidable destruction prevents the defendant from conducting an independent analysis of the substance, not an issue in this case. More importantly, the state in petitioner’s trial offered absolutely no excuse for its failure to introduce the substance. The substance was actually present during every moment of the trial and was handled, examined, and referred to by the prosecutor and the state’s witnesses. Furthermore, we do not perceive this case as involving the defendant’s right of confrontation, as did both the third district court in Alexander and the fifth district court in this case.

        .See § 90.953, Fla.Stat. (1981).

      . Defense attorneys in the state are surely aware of the following rule:
      Failure to renew an objection at trial contemporaneously with admission of the contested evidence constitutes a waiver of the right to appellate review of an alleged error, even though issues of constitutional dimensions are claimed to exist.

        Roban v. State, 384 So.2d 683, 685 (Fla. 4th DCA 1980) (emphasis added) (quoting Jones v. State, 360 So.2d 1293, 1296 (Fla. 3d DCA 1978)).

       Chapter 82-88, Laws of Florida, provides in full:
      Section 1. Section 893.105, Florida Statutes, is created to read:
      893.105 Testing and destruction of seized substances.—
      (1) Any controlled substance seized as evidence may be sample tested and weighed by the seizing agency after the seizure. Such samples and the analysis thereof shall be admissible into evidence in any civil or criminal action for the purpose of proving the nature, composition, and weight of the substance seized. In addition, the seizing agency may photograph or videotape, for use at trial, the controlled substance seized.

        (2) Controlled substances that are not retained for sample testing as provided in subsection (1) may be destroyed pursuant to a court order issued in accordance with s. 893.12.
      Section 2. This act shall take effect upon becoming a law.


text:
    STATE of Florida, Petitioner, v. G. A., a child, Respondent.
    No. 60134.
    Supreme Court of Florida.
    July 22, 1982.

      Jim Smith, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for petitioner.
    Alan R. Parlapiano, Public Defender and Gilbert A. Schaffnit, Asst. Public Defender, Eighth Judicial Circuit, Gainesville, for respondent.
   OVERTON, Justice.

This is a petition to review that portion of the First District Court of Appeal’s decision in G. A. v. State, 891 So.2d 720 (Fla. 1st DCA 1980), which was certified to us as being in conflict with R. J. B. v. State, 394 So.2d 126 (Fla. 5th DCA 1980). The sole issue certified is whether the district court had jurisdiction to entertain an interlocutory appeal from an order entered by the juvenile division of the circuit court waiving juvenile jurisdiction and certifying the juvenile for trial as an adult. The court below held that it had such jurisdiction. For the reasons expressed in our decision in R. J. B. v. State, 408 So.2d 1048 (Fla.1982), we disagree and hold that the district courts of appeal are without jurisdiction to review this type of order by interlocutory appeal.

We quash the decision of the district court in the instant case and remand for further proceedings consistent with this opinion.

It is so ordered.

ALDERMAN, C. J., and BOYD and Mc-DONALD, JJ., concur,

SUNDBERG, J., dissents.


author: ALDERMAN, Chief Justice. SUNDBERG, Justice,

text:
    Mary Cheek ROWE, Petitioner, v. STATE of Florida, Respondent.
    No. 61090.
    Supreme Court of Florida.
    July 22, 1982.
    William T. Lassiter, Jr. and William T. Edwards, Jr., Jacksonville, for petitioner.
    Jim Smith, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for respondent.
   ALDERMAN, Chief Justice.

The sole question before us is whether Florida Rule of Criminal Procedure 3.691 prohibits the granting of bail pending appeal to a person who is convicted of a capital offense when that person is sentenced to life imprisonment pursuant to section 775.082(1), Florida Statutes (1979). The district court of appeal answered this question in the affirmative and has certified this question as one of great public importance. Rowe v. State, 402 So.2d 489 (Fla. 1st DCA 1981). We agree with the First District and hold that under rule 8.691 a person convicted of a capital offense, even though receiving a life sentence, may not be released on bail pending review of the conviction.

Mary Cheek Rowe was convicted of the first-degree murder of her husband, Elijah Rowe, and was sentenced to life imprisonment with the requirement that she serve no less than twenty-five years before becoming eligible for parole. After filing her appeal from her first-degree murder conviction with the First District, she filed a motion with the trial court to set bail. The trial court, in granting bail and setting bond at $10,000, found that Mrs. Rowe had no criminal record, that her first-degree murder conviction involved a family dispute, that she was not likely to commit any offense if released on bail, that she is fifty-five years old and has serious medical problems, that she has not been known to be a troublemaker, that she was not likely to flee the jurisdiction, that she would live with her daughter, and that prior to trial she was free on bond for over six months and appeared in court on each court date. The State sought review of this order in the district court on the basis that, since Mrs. Rowe had been convicted of a capital offense, she was not entitled to bail on appeal. The district court reversed the trial court’s order on the basis of its prior decision in Rowe v. State, 394 So.2d 1059 (Fla. 1st DCA 1981), a companion case involving Mrs. Rowe’s son, Douglas McArthur Rowe.

Thereafter, the First District affirmed Mrs. Rowe’s conviction without discussion of any of her points on appeal. Because of its previous order reversing the trial court’s grant of bail pending her appeal, however, the First District certified the question relating to bail on appeal and referred to its decision in Rowe v. State, 394 So.2d 1059 (Fla. 1st DCA 1981).

Rule 3.691 provides in pertinent part:

(a) All persons who have been adjudicated guilty of the commission of any offense, not capital, may be released, pending review of the conviction, at the discretion of either the trial or appellate court, applying the principles enunciated in Younghans vs. State, 90 So.2d 308 (Fla. 1956) .... (Emphasis added.)

Mrs. Rowe contends that, by employing the terminology “not capital” in rule 3.691, this Court eliminated the discretion of the trial court to grant bail on appeal to only those who are convicted of a capital offense and who receive a sentence of death. This rule, however, clearly and unambiguously states that a person adjudicated guilty of the commission of a capital offense is not entitled to bail on appeal. A capital offense is one that is punishable by death. In Florida, murder in the first degree is the only existing capital offense. Just because a person is not sentenced to death upon being adjudicated guilty of murder in the first degree does not mean that person has not been adjudicated guilty of the commission of a capital offense. Section 775.082(1) expressly describes the penalty to be imposed upon a person who is adjudicated guilty of a capital offense but for whom the trial court does not find the penalty of death warranted. This statutory provision states that “[a] person who has been convicted of a capital felony shall be punished by life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole unless the proceeding held to determine sentence according to the procedure set forth in s. 921.141 results in findings by the court that such person shall be punished by death, and in the latter event such person shall be punished by death.” Section 921.141 also makes clear that one who does not receive a death sentence upon being adjudicated guilty of first-degree murder has nevertheless been convicted of a capital crime and shall be punished as such pursuant to section 775.082.

In Rowe v. State, 394 So.2d 1059 (Fla. 1st DCA 1981), the First District recognized the nonambiguity of rule 3.691 and determined that the trial court did not have discretion to grant bail on appeal to a person convicted of a capital offense, whether that person be sentenced to death or life. That case involved Mrs. Rowe’s son, Douglas McArt-hur Rowe, who had also been convicted for the first-degree murder of Elijah Rowe and who had likewise been sentenced to life imprisonment. He had been granted bail by the trial court pending appeal of his murder conviction, but the First District reversed the trial court’s order granting bail. The First District correctly explained that Hedden v. State, 275 So.2d 52 (Fla. 2d DCA 1973), relied upon by Mr. Rowe in claiming his entitlement to bail, does not stand for the proposition that bail may be allowed pending appeal where a person has been convicted of a capital offense but has been sentenced to life imprisonment. Hed-den was decided when there were no capital offenses in Florida because capital punishment as then legislated had been abolished by the Supreme Court of the United States in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and because in Donaldson v. Sacks, 265 So.2d 499 (Fla. 1972), this Court had determined there could be no capital offense without capital punishment. The First District in Rowe also properly concluded that section 924.-065(3) did not restore the discretion to the trial court to grant bail in the present situation. It read this provision in conjunction with section 903.132 and pointed out that, although in 1976 the legislature amended 903.132 and by a two-thirds vote repealed that portion of rule 3.691(a) which allowed the trial court discretion with regard to permitting post-conviction bail where a person has been previously convicted of a felony, it left intact that portion of rule 3.691(a) which eliminated discretion as to those convicted of capital offenses. If the legislature had intended to give the courts this discretion, it could have repealed that portion of the rule as well. The First District correctly declined to imply such legislative intention from section 924.065(3).

Accordingly, we hold that rule 3.691 prohibits the granting of bail pending appeal to a person convicted of a capital offense when that person is sentenced to life imprisonment. The decision of the First District is approved.

It is so ordered.

BOYD, MCDONALD and EHRLICH, JJ., concur.

SUNDBERG, J., dissents with an opinion, in which ADKINS and OVERTON, JJ., concur.

SUNDBERG, Justice,

dissenting.

The majority view is indeed beguiling. It is simply logical that “capital offense” refers to any crime potentially punishable by death. The simplicity of the majority opinion is at once its allure and its infirmity. Scrutiny beyond semantic logic reveals that rule 3.691 contemplates discretionary post-trial release for those not sentenced to death. I therefore must dissent.

I am persuaded to this conclusion by an analysis of Hedden v. State, 275 So.2d 52 (Fla. 2d DCA 1973), cert. denied, 419 U.S. 1031, 95 S.Ct. 513, 42 L.Ed.2d 306 (1974), a case which the majority too easily dismisses. The majority begins and ends its analysis of Hedden by pointing out that the case was decided during the capital punishment hiatus following Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). The implication is that Hedden was fortuitously granted leave to apply for bail because Florida was temporarily without “capital offenses.” Actually Hedden prevailed not because of this fact but in spite of it. The trial judge in Hedden, confused about his post-Furman role, thought he was without authority to grant bail. On appeal the court set aside the categorical denial of bail:

[T]he trial court does have the discretion in this case to grant bail (see Stalnaker v. State, 1936, 126 Fla. 407, 171 So. 226 and Gray v. State, Fla.1951, 54 So.2d 436) and has not lost the authority to do so, notwithstanding, Furman v. Georgia, 408 U.S. 238 [92 S.Ct. 2726, 33 L.Ed.2d 346] (1972), wherein the death penalty was abolished. We do not believe that Donaldson, supra, or Fla.Const. art. I, § 14, divests the trial court from exercising his discretion in granting or denying bail after conviction in cases where the punishment is mandatory life imprisonment.

Hedden at 53 (emphasis added). The district court in Hedden based its decision on Gray v. State, 54 So.2d 436 (Fla.1951), and properly so, for this Court in Gray said the following:

[W]hen one is convicted of a capital offense with recommendation to mercy and less than the death penalty is imposed, whether or not the accused should be admitted to bail pending appeal is within the sound discretion of the court depending on the facts of the particular case.

Id. at 437.

In rejecting the possibility of discretionary bail following non-death sentences, the First District Court of Appeal has correctly pointed out that Gray was decided before the promulgation of Florida Rule of Criminal Procedure 3.691. Rowe v. State, 394 So.2d 1059 (Fla. 1st DCA 1981). The fact remains that Hedden was not, and Hedden recognizes the trial judge’s discretion to grant bail in non-death cases, citing Gray as its authority. If the majority wishes to disapprove Hedden, and consequently overrule Gray, it should do so. To ignore Gray is to imply that when this Court promulgates its own rules it ignores its own decisions. Nothing in rule 3.691 or in the majority’s analysis suggests that the rule was other than a codification of the case law in existence at its promulgation. Indeed it is apparent that rule 3.691 was just such a codification. Before the rule’s promulgation a Florida statute similarly permitted discretionary release following conviction for offenses “not capital.” § 903.01, Fla. Stat. (1955). This Court considered this statute “a legislative declaration of the rule developed by judicial decision.” Younghans v. State, 90 So.2d 308, 309 (Fla.1956). It may be fairly presumed that Gray, decided only five years earlier, was one of the judicial decisions to which the Court referred. In 1972 this Court promulgated rule 3.691, choosing the words “not capital,” the meaning of which should have been as familiar to the Court as its own decision in Gray. In re Florida Rules of Criminal Procedure, 272 So.2d 65, 121 (Fla.1972). Within the rule the Court cited Younghans as the polestar which would guide the rule’s interpretation. Younghans’ implicit reference to Gray has therefore made its way into the very words of the rule itself.

Thus the meaning of the words “not capital” can be traced along a continuum from caselaw to statute to caselaw and finally to the rule in its present form. Once it is acknowledged that this continuum exists, the problem becomes one of finding the point along its unbroken length when the words “not capital” acquired the meaning which the majority asserts has been obvious all along. The transformation point has so successfully eluded me that I am forced to conclude it does not exist.

I am likewise at a loss as to how the legislature’s failure to repeal that portion of rule 3.691(a) dealing with capital offenses bears upon our interpretation of the rule. The majority’s discussion on this point begs the question. It assumes that the legislature, cognizant that trial judges lacked discretion to grant bail following non-death sentences, consciously left the rule intact, thereby refusing “to give the courts this discretion.” But if the legislature believed that the rule did allow bail for non-death sentences, there would be no point in repealing the rule to give the courts discretion which they already possess. I find this latter scenario the more plausible. Section 924.065(3), Florida Statutes (1981), reflects a legislative belief that “capital offense” for bail purposes means one for which the death penalty has been imposed. It states, “[a]n appellant who has been sentenced to death shall not be released on bail.” The majority makes the obvious point that if trial judges were without discretion to grant bail in a situation like Mrs. Rowe’s, then section 924.065(3) did not “restore” it. But that which has never been taken away need, not be restored. What the majority has failed to reveal is the moment in time when the discretion to grant bail in non-death cases was taken away. It plainly existed in 1951 when this Court decided Gray, the Second District Court of Appeal believed it still existed in 1973 when it decided Hedden; I believe it exists today.

ADKINS and OVERTON, JJ., concur.


author: McDONALD, Justice.

text:
    STATE of Florida, Petitioner, v. Freddie Lee JACKSON, Respondent.
    No. 61140.
    Supreme Court of Florida.
    July 22, 1982.
    Jim Smith, Atty. Gen. and Mark C. Men-ser, Asst. Atty. Gen., Daytona Beach, for petitioner.
    James B. Gibson, Public Defender and Christopher S. Quarles, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for respondent.
   McDONALD, Justice.

The state has asked us to review Jackson v. State, 404 So.2d 369 (Fla. 5th DCA 1981), because of conflict with State v. Hegstrom, 401 So.2d 1343 (Fla.1981). We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution. The district court issued its opinion two weeks prior to the filing of Hegstrom. We quash Jackson and remand with instructions to affirm Jackson’s conviction of attempted sexual battery.

It is so ordered.

ALDERMAN, C. J., and ADKINS, OVERTON and SUNDBERG, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Homer Allen ROSS, Respondent.
    No. 61511.
    Supreme Court of Florida.
    July 22, 1982.

      Stanley A. Spring, Staff Counsel, Tallahassee, and Roberta J. Fox, Bar Counsel, Tampa, for complainant.
    Larry Byrd, Sarasota, for respondent.
   PER CURIAM.

This attorney-discipline proceeding is before the Court on the complaint of The Florida Bar and the report of a referee. The referee found serious misconduct and recommended disbarment. Neither party has petitioned for review of the referee’s findings or recommendation. We disbar the respondent and assess against him the costs incurred by The Florida Bar in this proceeding.

The Florida Bar brought its complaint in four counts. A referee was assigned and held a hearing. Respondent received notice pursuant to article XI, rule 11.13(2) of the Integration Rule of The Florida Bar. Respondent did not personally attend the hearing but was represented there by counsel.

With regard to count one, the referee found that respondent made a false statement in accounting to a client for the disposition of funds held in trust and converted $75,723.90 of the client’s money to his own use, thereby violating rule 11.02 of the Integration Rule and numerous provisions of the Code of Professional Responsibility.

On count two, the referee found that respondent received $8,000 from clients in a matter unrelated to count one, failed to apply the money to its intended purposes, and converted it to his own use, thereby again violating the Integration Rule and the Code.

Regarding count three, the referee found, based on a Bar audit of respondent’s trust account, that respondent had used funds held in trust to meet his personal obligations in violation of the Integration Rule and the Code.

On count four, the referee found that respondent violated the Integration Rule and the Code by maintaining his trust account with inaccurate and incomplete reconciliations.

We approve and adopt the referee’s findings of fact and the recommended discipline. Respondent is disbarred from the practice of law, effective immediately. We assess the costs of these proceedings against respondent in the amount of $1,084.69.

It is so ordered.

ALDERMAN, C. J., and BOYD, OVER-TON, McDonald and EHRLICH, JJ., concur.


author: ADKINS, Justice.

text:
    STATE of Florida, Petitioner, v. Arthur D. CARPENTER, Respondent.
    No. 60383.
    Supreme Court of Florida.
    July 29, 1982.

      Jim Smith, Atty. Gen., and Michael A. Palecki, Asst. Atty. Gen., Tampa, for petitioner.
    Jerry Hill, Public Defender, and Karla J. Staker, Asst. Public Defender, Bartow, for respondent.
   ADKINS, Justice.

We have for review a decision of the District Court of Appeal, Second District, (Carpenter v. State, 394 So.2d 144 (Fla. 2d DCA 1981)), which is in express conflict with Walker v. State, 386 So.2d 630 (Fla. 5th DCA 1980). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

Respondent (hereinafter referred to as defendant), was arrested for driving while under the influence of intoxicating beverages. During the course of the arrest the defendant attacked the officer. He was charged by information with one count of battery upon a law enforcement officer and another count of “offering and doing violence” to the officer “by grabbing him by the throat and trying to choke him.” He was found guilty of both counts and sentenced to concurrent sentences.

On appeal, the Second District Court of Appeal took the position that an offense could be a lesser included offense of another even though they carry the same penalty. The court then held that section 775.-021(4), Florida Statutes (1979), prohibited separate sentences. This statute reads as follows:

(4) Whoever, in the course of one criminal transaction or , episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.

After the decision in Carpenter v. State, we decided this question in Ray v. State, 403 So.2d 956 (Fla.1981), when we said:

It is also not “lesser” because both section 794.011(5) and section 800.04 are second-degree felonies. Thus, Ray was convicted of a crime for which he was not charged and which was not a permissible lesser included offense of the crime for which he was charged.

Id. at 959 (emphasis supplied).

Whereas here two crimes carry the same penalty, section 775.021(4) does not prohibit consecutive sentencing, since one crime is not the lesser of the other. It remains the court’s function, however, to determine if the crimes are the same. If they are, double jeopardy would prohibit the imposition of multiple punishments. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

A single transaction can give rise to distinct offenses under separate statutes without violating the double jeopardy clause of the fifth amendment. Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). In determining whether separate punishment can be imposed, Blockburger requires that courts examine the offenses to ascertain whether each offense requires proof of a fact which the other does not. If each requires proof of a fact that the other does not, the Block-burger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. See Iannelli v. United States, 420 U.S. 770, 785 n.17, 95 S.Ct. 1284, 1293 n.17, 43 L.Ed.2d 616 (1975). In Albernaz v. United States the Court recognized that the power to define criminal offenses and to prescribe punishments to be imposed upon those found guilty of them rests wholly with the legislative branch.

While resisting arrest with violence and battery on a law enforcement officer are similar offenses, and while they usually happen in conjunction with one another, one does not necessarily involve the other. Under section 843.01, Florida Statutes (1979), one could obstruct or oppose a law enforcement officer by threatening violence and still at the same time not be committing a battery on the law enforcement officer as proscribed in section 784.07, Florida Statutes (1979). In applying the Blockbur-ger test the courts look only to the statutory elements of each offense and not to the aetual evidence to be presented at trial or the facts as alleged in a particular information. See Whalen v. United States, 445 U.S. 684, 685 n.8, 100 S.Ct. 1432, 1439 n.8, 63 L.Ed.2d 715 (1980).

The decision of the district court of appeal is quashed and the cause is remanded with instructions to affirm the convictions and sentences.

ALDERMAN, C. J., and BOYD, OVER-TON, SUNDBERG and McDONALD, JJ., concur.


text:
    LANDERS CONSTRUCTION and Liberty Mutual Insurance Company, Appellants, v. Lanny DELAUDER, Appellee.
    No. ZZ-105.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1981.
    Lamar D. Oxford and Andrew L. Ringers of Dean, Ringers, Morgan & Lawton, P. A., Orlando, for appellants.
    Ronald J. Langa and Herbert H. Hall, Jr., of Maher, Overchuck, Langa & Cate, Orlando, for appellee.
   ON REHEARING

PER CURIAM.

Petition for rehearing calls to the court’s attention appellants’ reply brief, which was filed under an order granting an extension of time for serving the reply brief until September 13,1980. The entry of our opinion affirming the order below on September 10,1981, was premature, since the extension period had not expired. We have, therefore, considered the matters addressed in appellants’ reply brief and, having done so, adhere to our original opinion.

The sole question presented on this appeal is the award of a $721.81 attorney’s fee. Appellants contend that no award of attorney’s fee was proper under Florida Statutes, Section 440.34(2)(a), because the claim was not one for medical benefits only and because, in any event, the employer/carrier authorized claimant’s surgery timely.

The claim filed in the instant case was as follows:

Authorization for surgery by Dr. Ronald Lakusiewicz; continuing temporary total disability after said surgery; hospital expenses for said surgery; any and all related medical expenses; interest; penalties; attorney’s fees and costs.

We hold that the foregoing claim comes within the statute and that the Deputy’s finding that the employer/carrier’s authorization of claimant’s receipt of medical care was untimely is correct. The inclusion of a claim for “continuing temporary total disability benefits after said surgery” is part of claimant’s essential medical care and does not disqualify the claim under Section 440.34(2)(a). Nor does the claim for interest, penalties, attorney’s fees and costs disqualify the claim as being one for “medical expenses” only, since these items are statutorily provided once the Deputy has determined that medical benefits due claimant have not been properly paid.

The Deputy’s order correctly interprets and applies Section 440.34(2)(a), following the intent of the Legislature to encourage prompt authorization by the employer/carrier of needed medical care.

Pursuant to appellee’s timely motion, attorney’s fees for services rendered on claimant’s behalf in this appeal are awarded in the amount of $1,500.

Petition for rehearing is denied, and the order below is affirmed.

BOOTH, SHAW and WENTWORTH, JJ., concur.