text:
    Collis Cordell SMITH v. STATE.
    7 Div. 768.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.

      Mary Lil Owens of Wilson, Bolt, Isom, Jackson, Bailey & Owens, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the possession of a pistol after having been convicted of a crime of violence (burglary and grand larceny). Alabama Code 1975, Section 13-6-152(a). Sentence was three years’ imprisonment. Four issues are presented on appeal.

I

Prior to trial, defense counsel made both oral and written motions to limit and exclude any evidence of the burglary of the Imperial Reading building by the defendant’s brother, Odell Dennis Smith, which occurred at approximately the same time and almost directly across the highway from the Racetrac service station where the defendant was arrested.

Investigating a burglary in progress, Oxford police officers went to the Imperial Reading building on Highway 21 in Oxford around 3:00 on the morning of November 30, 1979. They captured the defendant’s brother who had broken into the building and took him to the police station. At the station the police tried to find out where Odell Smith’s vehicle was or “how he got down there.”

While at Imperial Reading- the officers noticed a car parked in the Racetrac service station across the highway from the building. Although the service station was open for business an officer stopped to investigate this automobile.

Oxford Police Officer Howard Pettus arrived at the service station and saw Officer Tim Caulder talking with the defendant behind the “suspect vehicle.” Officer Pet-tus asked the defendant for his full name and some “I.D.”. After receiving a social security card, Officer Pettus “asked him if he had any kind of weapons or anything on him.” The defendant voluntarily removed three .22 caliber short bullets from his pocket. Officer Pettus testified that he then asked the defendant if he had a gun and the defendant replied, “Yes Sir”. Pettus stated: “I said, ‘Where is it?’ He said, ‘It’s in the dash of the car.’ ” * * * “I asked him if I could see the gun.” * * * “He said, ‘You can get it out of the dash.’ ” Pettus then removed a .22 caliber pistol from the dashboard of the vehicle. After learning that the defendant did not have a permit to possess the pistol, Officer Pettus placed him under arrest.

The automobile belonged to the defendant’s brother. Two young children were in the car. These were the defendant’s brother’s children. Besides the defendant, there was no other adult around or in the car.

The trial judge granted the defendant’s motions to exclude any evidence of the burglary to a limited extent. The court ruled:

“THE COURT: Now then, as to further aspects of the Defendant’s oral motion presented to the Court to totally limit or exclude any evidence of alleged burglary offense involving Odell Dennis Smith and the burglary at the Imperial Reading building, I’m going to grant that motion to some extent. I think that it would be permissible for the State to draw out the facts as to why they might have been in a particular location where they were at a time in which they were lead to the accused who is on trial here today. And I think that they can go to the extent of the fact that they made an arrest at that point and they determined the name of that individual, who that individual was by name is, I think, a part of the reason that Mr. Collis Cordell Smith was questioned and involved the determination— came about from the determination as to his relationship with that particular party that was arrested. Now, at that point, I think that’s as far as the State would be able to go. I don’t see that the subsequent conviction of Odell Dennis Smith should necessarily, for the record, tie back to Imperial Reading. I’m going to let that go to that extent. Just to the fact that they were out on that stretch of highway at the time at which the officer’s attention was first focused or directed to the Defendant on trial here today.”
* * * * * *
“THE COURT: All right. The Court’s going to do this, I’m going to limit the prosecution to going into the fact that they were called to a burglary, that they made an arrest. It’s going to be the Court’s ruling that they are not to mention the name of the person whom they arrested. Now, if it’s their testimony that upon determining the name of the party arrested for the burglary, that out of that they somehow connect another person to him, and that’s what led them to this Defendant the fact that a brother, a relative of the person that was arrested was in what they claim to be the immediate vicinity; I think I’m going to allow the State that.”
* * * * * *
“MS. OWENS (Defense Counsel): Well, Your Honor, we’re going to object to that and I understand the Court’s ruling to be that the State may not elicit from police witnesses the identity of the Defendant— the identity of the burglar.
“THE COURT: That’s correct.”

The trial judge wisely and properly excluded any evidence identifying the defendant’s brother as the burglar arrested at Imperial Reading. While antecedent circumstances tending to shed light on the criminal transaction or elucidate the facts connected therewith are admissible in evidence against the accused, Pope v. State, 365 So.2d 369 (Ala.Cr.App.1978), “(antecedent acts of third persons which apparently have no connection with the commission of the crime by the accused are not admissible, unless their connection and relevancy are made apparent by other facts introduced or offered to be introduced in evidence.” 22A C.J.S. Criminal Law, Section 606 (1961). Even though the burglary and the crime charged against the defendant were closely related in time and place, the burglary committed by the defendant’s brother had no connection to the crime charged against the defendant. Dean v. State, 98 Ala. 71, 13 So. 318 (1892) (On a trial for carrying a concealed weapon, evidence is inadmissible that the defendant, a short time before the discovery of the pistol on his person, said he was “going to raise hell” that night.) In Hainey v. State, 147 Ala. 146, 41 So. 968 (1906), it was held error to admit evidence that the defendant was drunk at the time it was alleged he carried a concealed weapon. It was also held inadmissible to show that the accused was a brother of a person whom the officers were seeking to arrest for drunkenness at the time the accused is alleged to have carried the concealed weapon.

While defendant’s appellate counsel argues that “the jury would have had to been asleep not to figure out that Dennis (the defendant’s brother) was the one arrested for the burglary” we do not find the evidence implying that conclusion either that strong or that clear. For this reason we do not think that the trial judge erred in failing to exclude all the testimony of the burglary and in limiting the evidence of the burglary to exclude the identification of the defendant’s brother.

II

Just as fully as we uphold the trial court’s decision on this issue, we condemn the action of the prosecutor in attempting to breach that order. Either knowing or unwitting attempts by the prosecutor to do indirectly what the trial judge has explicitly prohibited him from doing have no place in a criminal trial.

While the State did not directly attempt to connect the defendant to the burglary, the prosecutor asked several questions which sought to establish the fact or plant the inference of the fact that it was the defendant’s brother who burglarized Imperial Reading. This case is saved from a reversal only by the action of the trial judge in sustaining each and every objection of defense counsel to these questions. Defense counsel did not move to strike the objectionable questions nor request that the jury be instructed to disregard any implication present in those questions. There was no motion for a mistrial. While this issue now before us was presented to the trial judge in a motion for new trial, the denial of that motion was properly within the exercise of his discretion of which we find no clear abuse. In reviewing the denial of a motion for new trial, this Court will indulge every presumption in favor of the correctness of the ruling of the trial judge. Williams v. State, 348 So.2d 1113 (Ala.Cr.App.), cert. denied, 348 So.2d 1116 (Ala.1977). The grounds urged for a new trial must ordinarily be preserved at trial by timely and sufficient objections. Fuller v. State, 365 So.2d 1010 (Ala.Cr.App.1978), cert. denied, 365 So.2d 1013 (Ala.1979).

In conclusion, we only remark that had the trial judge failed to sustain or grant any objection or action requested by defense counsel to cure the objectionable questions of the prosecutor this case would require a reversal. Furthermore, had the questions of the prosecutor directly implicated the defendant in the burglary or clearly implicated the defendant’s brother, we would have no hesitation in reversing the defendant’s conviction.

Ill

In a prosecution for possessing a pistol after a conviction of a crime of violence, the introduction of two prior convictions of crimes of violence is not improper on the theory that it is prejudicial to the defendant since all that is necessary is the admission of one conviction of a crime of violence. O’Neal v. State, 50 Ala.App. 31, 35, 276 So.2d 616, cert. denied, 290 Ala. 370, 276 So.2d 621 (1973).

IV

In brief it is argued that, because the State attempted to make its case against the defendant for possession of a pistol by suggesting to the jury that the defendant was the accomplice or “back-up man” for the burglary committed by his brother, the defendant presented evidence that he remained at the gas station only because he could not get his car started. To support this position, the defendant called Marie Hering, the Raeetrac service station attendant. The trial judge sustained the State’s objections to the following questions asked of Ms. Hering by defense counsel:

1. “Did (the defendant) tell you he had a problem with his car?”
2. “How long would you estimate that he had already been at the station by the time he asked you if you had jumper cables?”
3. “When you told him you did not have any jumper cables did you see what he did then?”
4. “After he asked you if you had any jumper cables, did you ever have any further conversation with him?”

The trial judge also excluded certain portions of Ms. Hering’s answers.

5. “He asked me and a customer if we had jumper cables.”
6. “I asked (the police), you know, what was going on. It was surprising to me that they were questioning him when he just wanted some jumper cables.”

Obviously some of the questions to which objections were sustained sought information based on hearsay. Evidence from a party whose testimony is based on information furnished by the defendant is immaterial and inadmissible. McDonald v. State, 241 Ala. 172, 1 So.2d 658 (1941); Kirklin v. State, 168 Ala. 83, 53 So. 253 (1910); Cox v. State, 23 Ala.App. 86, 122 So. 613, cert. denied, 219 Ala. 395, 122 So. 613 (1929).

Ms. Hering testified that the defendant purchased some gas; that he remained in the station thirty to forty-five minutes; that he never found any jumper cables that night. Ms. Hering also testified:

“Q. What was the reason for your calling the Oxford Police?
“A. Well, I noticed he had been out there for a little while and, of course, it was my first night and I was, you know, nervous, skeptical. So I went out and asked him, I told him that it being that early in the morning I didn’t figure he would get any help. I asked him if he would like for me to call the Oxford Police and see if they would come help him and he said yes, so he came back in.”
* * * * * *
“A. I went directly in and called them and I told them there was a car that was having trouble and that he couldn’t get it started and that if they could to send a ear with some jumper cables.”

Initially we note that, as we have stated before, the fact of the burglary had absolutely no relevance to the issue in this case except to show the reason the police came to question the defendant. However, fundamental fairness would indicate that, since the State was permitted to show why they were there, the defendant should be given the same opportunity.

The information defense counsel sought to elicit from Ms. Hering was placed before the jury despite the sustained objections of the prosecutor. The erroneous exclusion of testimony in the first instance is rendered harmless by the subsequent disclosure of facts of substantially the same effect. Jarrell v. State, 35 Ala.App. 256, 50 So.2d 767, reversed on other grounds, 255 Ala. 128, 50 So.2d 774, affirmed, 255 Ala. 209, 50 So.2d 776 (1951). Error in excluding evidence is harmless where evidence of the same substance and effect is subsequently placed before the jury. Roberson v. State, 233 Ala. 442, 172 So. 250 (1937); Thompson v. State, 354 So.2d 1134 (Ala.Cr.App.), cert. denied, Ex parte Thompson, 354 So.2d 1138 (Ala.1977).

Our review of the record convinces us that the judgment of the Circuit Court is due to be affirmed.

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    Ronald LOWERY v. CITY OF BOAZ.
    8 Div. 405.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.

      T. J. Carnes of Carnes & Carnes, Albert-ville, for appellant.
    No briefs filed by city.
   ON REHEARING

BOWEN, Judge.

The Alabama Court of Criminal Appeals hereby withdraws its original opinion of November 25, 1980, and files the following opinion.

The defendant was charged and convicted of issuing a worthless check in violation of an ordinance of the City of Boaz. Sentence was a fine of three hundred dollars and costs.

During oral argument, the City Prosecutor argued that the defendant had not been arraigned and that the case would have to be reversed for this reason. The constitutional and statutory provisions relating to a criminal prosecution by the State are not applicable to the violation of municipal ordinances unless so provided. City of Mobile v. McCown Oil Co., 226 Ala. 688, 148 So. 402 (1933); Birmingham v. Evans, 53 Ala.App. 358, 300 So.2d 396, cert. denied, 293 Ala. 136, 300 So.2d 401 (1974). The prosecution for violation of municipal ordinances is statutory and quasi-criminal in nature. Duncan v. City of Scottsboro, 267 Ala. 259, 104 So.2d 447 (1958); Donahey v. City of Montgomery, 43 Ala.App. 20, 178 So.2d 832, cert. denied, 278 Ala. 708, 178 So.2d 837 (1965). Since there is no statute requiring an arraignment in the prosecution for the violation of a municipal ordinance, an arraignment is not required.

“Where the proceedings for violation of an ordinance are considered civil in their nature, it is held that an arraignment is not necessary. Also, if the proceedings for violation of municipal ordinances are not by way of indictment, an arraignment and plea of not guilty is not necessary, even though such proceedings may be regarded as quasi-criminal.”
62 C.J.S. Municipal Corporations, Section 338 (1949).

The defendant was in the business of buying, reconditioning and reselling cars. Walter Sivils was in the retail tire business and the defendant was a regular customer. A regular practice was established whereby merchandise purchased by the defendant during one month would be paid for at the first of the next month.

On June 6, 1977, the defendant wrote a check to Sivils in the amount of $464.00 for purchases made during the preceding month. The defendant gave this check to George Hibbs to deliver to Sivils. Hibbs worked in the same building and operated a business “like” the defendant’s.

The defendant testified that, when he gave the check to Mr. Hibbs, he told Hibbs that the check was not covered by sufficient funds in the bank and that he did not have the money to pay Sivils.

“I said, now, George, I haven’t got the money in the bank. He (George) said, well, he will wait a couple of days before he turns it in. I told George I would be back from the sale in a couple of days after selling the cars.”

The defendant testified, in substance, that, after he wrote the check, he was going to sell some of his cars at a sale and the proceeds from this would be deposited in the bank to cover the check. The defendant testified that a few days before he wrote the check Sivils asked him when he was going to pay his bill. The defendant replied, “I told him it would be a few days before I went to the car sale and sold some cars.” The defendant also stated: “And I had the feeling, you know, the way I understood it, when I sent the check to him that he was going to wait until it (I) got back (from the auto auction).”

It was stipulated that George Hibbs’ testimony would be that he delivered the check to Sivils at the request of the defendant and that the defendant told him at the time “that the check would be good and to tell Walter Sivils it would be good.”

Sivils deposited the check on June 7th, the day after it was written, and the check was returned for insufficient funds.

Although the defendant went to the auto auction or sale, he did not sell any of his cars. He testified that because of this he did not have the money to cover the check. The defendant did not inform Sivils of this. The defendant testified: “I figured he done knowed it because I done got a notice where the check had done been run through the bank and returned.” Sometime after the check had been dishonored, the defendant paid Mr. Sivils $50.00 of the $464.00 he owed.

I

The defendant contends that, as a matter of law, he did not have the requisite intent to defraud because the check was given for an antecedent debt. The issue here is whether a criminal prosecution under Alabama Code 1975, Section 13-4-113 is prohibited where the worthless check is given for an antecedent debt.

The offense defined by Section 13-4-113 “is complete when the check is drawn ... with the intent to defraud, knowing at the time of drawing that there are insufficient funds in the drawee bank to cover such check.” Tolbert v. State, 294 Ala. 738, 742, 321 So.2d 227 (1975). Here there is no dispute that (1) at the time of the drawing the check, the defendant knew that he had insufficient funds in the bank to cover the check and (2) that the defendant received notice of the dishonor but never made good the check. However, to prove a violation of the Worthless Cheek Act, the prosecution must prove a specific intent to defraud. Tolbert.

In Smith v. Southeastern Financial Corp., 337 So.2d 330 (Ala.1976), our Supreme Court found that intent to defraud had the same meaning under Alabama’s Civil and Criminal Worthless Check Acts. Harris v. State, 378 So.2d 257 (Ala.Cr.App.), cert. denied, 378 So.2d 263 (Ala.1979).

“Knowledge that checks are worthless does not necessarily amount to a fraudulent intent, if the checks are given for antecedent debts. Berry v. State, 153 Ga. 169, 111 S.E. 669 (1922), Commonwealth v. Hammock, 198 Ky. 785, 250 S.W. 85 (1923), State v. Blasi, 64 N.J. 51, 312 A.2d 135 (1973).
“ ‘Intent to defraud’ requires a scheme to unfairly deprive someone of something of value. There may be instances in which one has the requisite intent to defraud when writing a worthless check for an antecedent (i. e. to secure a further extension of credit).” Smith, 337 So.2d at 333.

The Court also held that the payment of an antecedent debt by use of a worthless check would sustain a cause of action under the Civil Worthless Check Act “provided the check was withdrawn with ‘intent to defraud’. 32 Am.Jur.2d, False Pretenses, Section 78, and Annotation 59 A.L.R.2d 1159, 1163.” Smith, 337 So.2d at 333.

Section 13-4-114 prohibits the issuance of a worthless check without reference to whether anything of value is thereby obtained. In 32 Am.Jur.2d, False Pretenses, Section 78 (1967), cited by the Court in Smith, we find:

“However, some worthless check statutes make it an offense to issue such a check, even though no money or property is obtained in return. Under statutes of this type, the offense may be committed by giving a worthless check in payment of a pre-existing debt. In such circumstances, however, some cases hold that although the payee need not be actually defrauded, an intent to defraud is required, and that since it is apparent that the maker of the check did not deprive the payee of any right or procure anything of value from him, the maker of the check did not give it with the intent to defraud, which is an essential element of the offense, and therefore no offense was committed.”

The citation at 59 A.L.R.2d at 1163, also cited by the Supreme Court in Smith, lists several cases which have held that the intentional issuance of a worthless check in payment of a past due indebtedness violates those statutes which prohibit the issuance of fraudulent checks without reference to whether anything of value is obtained thereby.

Commenting on State v. Blasi, 64 N.J. 51, 312 A.2d 135 (1973), cited by our Supreme Court in Smith, this Court noted, after recognizing the similarity of the Alabama and New Jersey statutes:

“That court (New Jersey) held that where the check was given solely for payment of an antecedent debt, with no present benefit from payee to negotiator passing or contemplated, fraudulent intent may not be inferred. Fraudulent intent is infera-ble where the bad check is give(n) to obtain an extension of credit or relief from threatened legal action although tendered as payment of an antecedent debt.”
Harris, 378 So.2d at 260.

The partial dissent in Blasi contains an exhaustive analysis of the varying worthless check statutes in each state. 312 A.2d at 137, n. 1. In that footnote, Alabama and Idaho, whose significance will presently become apparent, are described as being in that “group of jurisdictions hav(ing) statutes similar to that of New Jersey in that they require the State to prove an intent to defraud and do not require anything of actual value to be obtained.” The dissent also notes that none of these jurisdictions have had occasion to pass on the present problem.

As already stated the Alabama Supreme Court held that payment of an antecedent debt by use of a worthless check would sustain an action under the Civil Worthless Check Act, provided the check was drawn with the intent to defraud. Smith, 337 So.2d at 330.

In State v. Campbell, 97 Idaho 331, 543 P.2d 1171 (1975), the Supreme Court of Idaho ruled on the question presently before us and held that the fact that a check was issued in payment of preexisting obligation does not preclude a criminal prosecution for issuing a worthless check. This is in line with the holding of the Alabama Supreme Court in Smith. However, the Idaho Court held that the statutory “presumption of intent to defraud cannot constitutionally be applied in that narrow class of cases where it is shown that the insufficient funds check was given in payment of a preexisting obligation.”

The Court found that there was no connection or rational relation between the fact proved (that the defendant wrote the check without sufficient funds in the bank for an antecedent debt) and the ultimate fact to be presumed (that the defendant had the intent to defraud).

“However, ... when an insufficient funds check is given in payment of a preexisting obligation it is not likely that the maker had the intent to defraud, although it is legally possible that he did have such an intent. Therefore, we hold that to the extent that I.C. Section 18-3106(d) presumes an intent to defraud from the giving of an insufficient funds check in payment of a preexisting obligation that presumption is not based upon common experience, there being an insufficient relationship ‘between the fact proved and the ultimate fact to be presumed.’ State v. Grimmett, supra, 33 Idaho 203, 193 P. 380 (1920). We cannot say that ‘the presumed fact is more likely than not to flow from the proved fact.’ Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), and therefore the presumption under the circumstances of this case is arbitrary, irrational and therefore unconstitutional
“In conclusion, we hold that in prosecutions under I.C. Section 18-3106 in which it is alleged that the check in question was given in payment of a preexisting obligation the state may not rely on the presumption that the maker had an intent to defraud raised in subparagraph (d) of the statute. The state must present evidence which proves beyond a reasonable doubt that the defendant had the requisite intent to defraud. If the state fails to present such proof, the defendant would be entitled to a judgment of acquittal.” Campbell, 543 P.2d at 1174-75.

Finding Campbell persuasive, under the facts of this case, we do not think that the statutory presumption of fraudulent intent of Section 13-4-118 can be applied. The City could have shown the necessary intent to defraud by examining the reason for which the check was drawn. Here there was no evidence that, at the time the defendant drew the check, he was attempting “to effectuate the ostensible payment of any due or past due debt or obligations.” Alabama Code 1975, Section 13-4-111(8). The evidence does indicate that the defendant wrote the check knowing that he had insufficient funds and that the check was dishonored. However the evidence also indicates that when the defendant wrote the check he intended to deposit the funds to cover it — that he had no intent to defraud at the time he drew the check.

In conclusion, we hold that where a “worthless check is given solely for payment of an antecedent debt, with no present benefit from payee to negotiator passing or contemplated, fraudulent intent may not be inferred.” Campbell, supra; Blasi, supra. Fraudulent intent is inferable where the check is given to obtain an extension of credit, relief from threatened legal action or to effectuate the ostensible payment of any due or past due debt or obligation even though the check is tendered as payment of an antecedent debt. The evidence here does not justify any such finding and the defendant’s conviction is due to be reversed. Because the double jeopardy clause bars a second trial after a reversal of a conviction because of the insufficiency of the evidence to convict, the defendant’s conviction must be reversed and rendered. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

II

Section 3 of Ordinance No. 454 of the City of Boaz provides “(t)hat the punishment for a violation or offense involving said state misdemeanor statutes shall be that as set by state law.” Although the defendant was fined three hundred dollars, Alabama Code 1975, Section 13-4 — 122, provides that “(w)hen the check is for $100.00 or more but less than $500.00” the penalty for the first offense is “(a) fine of not less than $100.00 nor more than $200.00.” The check in this case was for $464.00 and it does not appear that the defendant had a prior conviction. The sentence of $300.00 was therefore illegal and excessive in that it exceeded the sentence authorized by statute. Howard v. State, 390 So.2d 32, (Ala.Cr.App.1980).

III

The minute entry contained in the record reveals that the defendant’s trial was continued on four separate occasions either “for filing of Civil action on checks involved” or “for Civil Action.” While the trial judge, in finding the defendant guilty as charged, specifically found that “there was no evidence that the prosecuting witness’ motive was the collection of a debt, a practice universally condemned (Harris v. State, 378 So.2d 257)”, the continuances of the defendant’s trial date for the stated reasons strongly imply the contrary. In oral argument, the City stated that these continuances were granted at the defendant’s request. That contention is not supported by the record. However, since the cause must be reversed and rendered because of the failure of the City to offer any evidence of the defendant’s intent to defraud, we do not decide that issue.

Although the City made an appearance at oral argument, it has filed no brief or written response to the several issues presented by the defendant on appeal. The judgment of the Circuit Court is reversed and rendered.

ORIGINAL OPINION WITHDRAWN; APPLICATION FOR REHEARING GRANTED; REVERSED AND RENDERED.

All Judges concur.

      . Ordinance No. 454 of the City of Boaz provides, in part, that “ail existing State misdemeanor statutes .. . are now and hereinafter declared to be ... ordinances of the City of Boaz.” Alabama Code 1975, Section 13 — 4—113 makes it a criminal offense (a misdemeanor under Section 13-4-122) to issue a check without sufficient funds or credit.


author: ADKINS, Justice. ALDERMAN, Justice,

text:
    Robert Wayne TASCANO, Petitioner, v. STATE of Florida, Respondent.
    No. 55394.
    Supreme Court of Florida.
    June 5, 1980.
    Rehearing Denied Feb. 27, 1981.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, for respondent.
   ADKINS, Justice.

This cause is here on petition for writ of certiorari supported by a certificate of the District Court of Appeal, First District, that its decision reported in 363 So.2d 405 is one which involves a question of great public interest. See art. V, § 3(b)(3), Fla. Const.

The trial court denied defendant’s request that the jury be instructed on the penalty as authorized by Florida Rule of Criminal Procedure 3.390(a). The district court of appeal held that this was a matter within the discretion of the trial judge and the court did not err in refusing to instruct the jury as to the maximum and minimum penalties. The question involved is whether the provision of the rules are mandatory or directory.

Prior to its amendment in 1977, rule 3.390(a) read as follows:

The presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel, and must include in said charge the penalty fixed by law for the offense for which the accused is then on trial.

The courts interpreted this rule as being directory and not mandatory with regard to the penalty instructions. Huckeba v. State, 322 So.2d 29 (Fla. 1975); Johnson v. State, 308 So.2d 38 (Fla. 1974); Kelsey v. State, 317 So.2d 445 (Fla. 1st DCA 1975).

The rule as amended February 10 effective July 1, 1977, reads as follows:

The presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel and upon request of either the State or the defendant the judge shall include in said charge the maximum and minimum sentences which may be imposed (including probation) for the offense for which the accused is then on trial.

The Florida Bar re Florida Rules of Criminal Procedure, 343 So.2d 1247, 1261 (Fla. 1977).

We interpret this rule to mean that, upon request of either the state or the defendant, it is mandatory that an instruction be given on the maximum and minimum sentences which may be imposed. To interpret it otherwise would mean that the amendment was meaningless and accomplished nothing.

We must determine whether this decision should be retroactive or only prospective. Some trial courts and district courts of appeal have interpreted this rule as being mandatory, while others have interpreted the rule to be directory. One factor to consider in determining whether our decision should be given retroactive effect is the probable impact which such retroactive operation would have upon the administration of justice. See Annot. 14 L.Ed.2d 992, 1005 (1966).

The retroactive application of this decision would cast substantial doubt upon the validity of numerous prior judgments and would impose a great burden on the administration of justice by allowing cases to be relitigated. This is one of the factors favoring the denial of an unlimited retroactive effect to this decision. See Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); 20 Am.Jur.2d Courts § 233 (1965).

Retroactive application of a decision of this Court is not constitutionally required and we have the power to determine whether our decision should be prospective or retroactive in application. Benyard v. Wainwright, 322 So.2d 473 (Fla. 1975). See also Hoffman v. Jones, 280 So.2d 431 (Fla. 1973); State v. Barquet, 262 So.2d 431 (Fla. 1972).

Under the circumstances we hold that this decision shall be prospective only and shall be applicable to all cases in which a jury trial is commenced on or after the effective date of this opinion. The defendant, as well as all others who have preserved this point on appeal, receive the benefit of this interpretation of the rule.

The decision of the district court of appeal is quashed and the cause is remanded with instructions to reverse the judgment of conviction and further remand same to the circuit court for a new trial.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON and SUNDBERG, JJ.^ concur.

ALDERMAN, J., dissents with an opinion.

ALDERMAN, Justice,

dissenting.

Ever since this Court amended Florida Rule of Criminal Procedure 3.390(a), effective July 1, 1977, there has been doubt and confusion as to whether this rule is directory or mandatory. The problem arises because it is not clear from the langüage of the current rule whether the Court intended to change its ruling in Johnson v. State, 308 So.2d 38 (Fla. 1974). In Johnson, we held the provision of the prior rule, that the trial judge in instructing the jury “must” include the penalty fixed by law for the offense for which the accused is then on trial, to be directory and not mandatory. The current rule provides that upon request of either the State or the defendant, the judge “shall” include in his charge the maximum and minimum sentences which may be imposed. There is no commentary or note to the current rule which indicates that the Court intended to overrule Johnson and the host of other cases that interpret the former rule to be directory.

Not knowing what was in the minds of the Justices who were on the Court when the current rule was adopted, I am in the same position as other judges and lawyers of this State who must interpret the amended rule in light of prior precedents. Judge Orfinger, in his concurring opinion in Murray v. State, 378 So.2d 111 (Fla. 5th DCA 1980), points out that the dictionary definitions of the words “must” and “shall” are virtually identical. He cogently reasons that if the word “must,” as used in the former rule, is directory and not mandatory, as this Court held in Johnson, it is difficult to understand how a peremptory or mandatory meaning can be placed on the word “shall” as used in the current rule.

If the trial judge in this case erred in failing to give the penalty instruction, we contributed to that error because, when the rule was amended, we failed to clearly signal a substantial departure from prior precedent. If a majority of this Court intends that, when requested, an instruction on penalties is mandatory, then the Court should promulgate a new rule that clearly and directly tells the judges and lawyers of this State that the rule is mandatory and not directory.

In any event, we should find that no reversible error resulted from the trial court’s refusal in this case to give the requested penalty instruction. As pointed out by Judge Cobb, speaking for the court in Murray v. State, a mandatory penalty instruction is inconsistent with Florida Standard Jury Instruction 2.15, which provides:

Florida Standard Jury Instructions in Criminal Cases, Second edition, at 45.

The defendant cannot logically be entitled to reversal of his conviction upon the basis that the jury was not afforded information which it was obligated under the law and the court’s instruction to disregard. I would affirm the defendant’s conviction.


author: ENGLAND, Justice. BOYD, Justice,

text:
    Eddie Samuel IVORY, Charles Johnson, Edmond Duhart, Ben Chaney, Blair Smith, George Heller, Robert J. Butler, and James Rutledge, Appellants, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, Fla., Paul Mercheck, Director, Florida Parole and Probation Commission, Appellees.
    No. 57251.
    Supreme Court of Florida.
    Oct. 30, 1980.
    Rehearing Denied Feb. 20, 1981.

      Ben R. Patterson and Jerry G. Traynham of Patterson & Traynham, Tallahassee, for appellants.
    Jim Smith, Atty. Gen., and Lucy H. Harris, Asst. Atty. Gen., Tallahassee, for appel-lees.
   ENGLAND, Justice.

This cause is before this Court on direct appeal from a final judgment of the circuit court upholding as facially valid section 944.485, Florida Statutes (Supp.1978), which requires, as a condition of parole eligibility, that prisoners disclose their assets and income, and that they be assessed the cost of their subsistence in prison. The payment of subsistence costs is subject to the prisoner’s ability to pay, and certain specified exemptions.

Appellants raise several alleged constitutional infirmities in the subject statute, including abridgment of their right of disclo-sural privacy based on a decision of the First District Court of Appeal in Byron, Harless, Schaffer, Reid and Associates, Inc. v. State ex rel. Shellenberg, 360 So.2d 83 (Fla. 1st DCA 1978), violation of the prohibition on ex post facto laws, deprivation of property without procedural due process, denial of the privilege against self-incrimination, and the unlawful delegation of legislative authority.

The issue of disclosural privacy is foreclosed by our recent decision in Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So.2d 633 (Fla.1980), quashing the lower court’s decision on which appellants rely. Similarly, the other alleged infirmities raised by appellants are devoid of merit and do not warrant extended discussion. Appellants’ ex post facto argument presumes that section 944.485 operates to increase “punishment” for prisoners whose crimes were committed prior to its effective date. This presumption, however, is mistaken, as the purpose of the statute is not punitive. Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960); Zarsky v. State, 300 So.2d 261 (Fla.1974). Appellants’ procedural due process arguments presume a deprivation of liberty or property, but parole is neither. Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979); Moore v. Florida Parole and Probation Commission, 289 So.2d 719 (Fla.1974), cert. denied, 417 U.S. 935, 94 S.Ct. 2649, 41 L.Ed.2d 239 (1974).

Appellants’ assertion that the financial disclosure requirement violates their privilege against self-incrimination is raised prematurely. The claim of privilege must ordinarily be made at the time that disclosures are sought, see Communist Par-ty of the United States v. Subversive Activities Control Board, 367 U.S. 1, 105-10, 81 S.Ct. 1357, 1415-17, 6 L.Ed.2d 625 (1961), and it can appropriately be raised by individual inmates on their disclosure forms, see Garner v. United States, 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976).

Finally, appellants’ unlawful delegation argument is simply not persuasive. In enacting section 944.485, the legislature has prescribed sufficient standards and guidelines to comply with article II, section 3, of the Florida Constitution. Reynolds v. State, 383 So.2d 228 (Fla.1980); Florida State Board of Architecture v. Wasserman, 377 So.2d 653 (Fla.1979).

The trial court’s order upholding section 944.485 in the face of appellants’ constitutional challenges is affirmed.

It is so ordered.

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

ADKINS and OVERTON, JJ., concur in the result only.

BOYD, J., dissents with an opinion.

BOYD, Justice,

dissenting.

I would agree with the majority opinion holding the cost assessment law constitutional if it were limited in application to prisoners sentenced for offenses committed after its effective date and if it required assessments to be imposed in court at the time of sentencing. By virtue of its retroactive effect and its procedural scheme, however, the statute as written is an unconstitutional ex post facto law and allows for the deprivation of liberty and property without due process of law.

With regard to many prisoners, the statute allows for the imposition of monetary burdens in excess of the possible punishments prescribed at the time of the offense. A law violates the ban on ex post facto legislation if it makes criminal an act after it has been committed or if it retroactively increases the possible punishment for crime. State v. Gale Distributors, Inc., 349 So.2d 150 (Fla.1977); Higginbotham v. State, 88 Fla. 26, 101 So. 233 (1924).

The majority opinion disposes of the ex post facto argument by summarily concluding that the increased burdens imposed by the statute do not constitute punishment, but are merely conditions imposed incident to the granting of the privilege of parole. It is common knowledge that prison sentences are authorized and imposed in contemplation of the availability of parole. Many are the concerned citizens who have inquired into the basis for a seemingly Draconian prison sentence, only to be told, “Understand this: the prisoner will be eligible for parole in X years.” Parole has become such a fact of life in our criminal justice system that to condition or withhold eligibility for it is to increase the burdens imposed as punishment for crime.

Even with regard to prisoners convicted of and sentenced for offenses committed after the statute’s effective date, if the cost assessment is not imposed by the court at the time of sentencing, but subsequently by prison authorities as provided by the statute, then it constitutes a deprivation of liberty or property without due process of law. The majority disposes of this problem by concluding that there is no right, in the nature of a liberty or property right, to parole. But when a prisoner is sentenced for a crime, whether it be after a trial or pursuant to a plea, the prisoner should be able to know the extent of his punishment and also be eligible for parole on an equal footing with other prisoners similarly sentenced. This statute allows administrative officials to impose additional burdens as a condition of parole eligibility. The prisoner is faced with a deprivation either of property or liberty, without due process of law.

I respectfully dissent.

       Section 944.485, Florida Statutes (Supp.1978) provides:
      (1) In recognition of the fact that many prisoners in the correctional system have sources of income and assets outside of the correctional system, which may include bank accounts, inheritances, real estate, social security payments, veteran’s payments, and other types of financial resources, and in recognition of the fact that the daily subsistence cost of incarcerating prisoners in the correctional system is a great burden on taxpayers of the state, each prisoner in the state correctional system, except those who have entered into an agreement under s. 947.135 prior to October 1, 1978:
      (a) Shall disclose all revenue or assets as a condition of parole eligibility.
      (b) Shall pay from such income and assets, except where such income is exempt by state or federal law, all or a fair portion of the prisoner’s daily subsistence costs, based upon the inmate’s ability to pay, the liability or potential liability of the inmate to the victim or the guardian or the estate of the victim, and the needs of his dependents.

        tí) Any prisoner who is directed to pay all or a fair portion of daily subsistence costs is entitled to reasonable advance notice of the assessment and shall be afforded an opportunity to present reasons for opposition to the assessment.
      (3) The department shall promulgate, within 90 days of October 1, 1978, rules which implement this section.
      For the rules of the Department of Corrections regarding the financial disclosure of inmates pursuant to section 944.485, see Florida Administrative Code rule 33-17.


author: ALDERMAN, Justice. OVERTON, Justice,

text:
    MERCURY MOTORS EXPRESS, INC., Petitioner, v. Patricia Lynn SMITH, as Personal Representative of the Estate of David Jefferson Faircloth, Jr., deceased, and for the benefit of David Jefferson Faircloth, III, a minor, son of David Jefferson Faircloth, Jr., deceased, Respondent.
    No. 57368.
    Supreme Court of Florida.
    Jan. 22, 1981.

      Sheridan K. Weinstein of Papy, Poole, Weissenborn & Papy, Coral Gables, for petitioner.
    Headley & Headley, Miami, and Mark Hicks of Daniels & Hicks, Miami, for respondent.
    Larry Klein, West Palm Beach, for The Academy of Florida Trial Lawyers, amicus curiae.
   ALDERMAN, Justice.

We accept jurisdiction of this case because the decision of the district court, reported at 372 So.2d 116 (Fla. 3d DCA 1979), conflicts with Alexander v. Alterman Transport Lines, Inc., 350 So.2d 1128 (Fla. 1st DCA 1977).

Richard Welch, an employee of the petitioner, Mercury Motors Express, while driving a tractor-trailer for his employer, lost control of the vehicle, drove off the road, and hit David J. Faircloth, Jr., causing his death. Respondent, the personal representative of the decedent’s estate and the plaintiff in the trial court, alleged that Welch, “while acting in the scope of his employment with the Defendant, MERCURY MOTORS EXPRESS, INC.,” was “driving and operating the said vehicle while under the influence of alcohol to the extent that his ability to drive was impaired and did so in a reckless and negligent manner and at an excessive rate of speed, with a willful and wanton disregard for the life and safety of others . .. . ” Mercury Motors does not dispute these factual allegations, and for the purpose of our review, we accept them as true. When the case was tried, the jury awarded the plaintiff $400,000 compensatory and $250,000 punitive damages. Mercury Motors paid the compensatory damage award and appealed only the punitive damage judgment. In a brief opinion, the district court said that the legal issue presented “is whether a corporate employer and Interstate Commerce Commission permit holder can be liable in punitive damages for the willful and wanton misconduct of its employee while acting within the scope of his employment and operating a tractor and trailer leased by the corporate employer and operated under its permit.” Mercury Motors Express, Inc. v. Smith, 372 So.2d at 116. The district court, concluding that “a jury may assess punitive damages against a corporate employer when its employee, acting within the scope of his employment, has been guilty of willful and wanton misconduct, such as in this case,” affirmed the award of punitive damages. 372 So.2d at 117. We quash the decision of the district court and hold that, in the absence of some fault on the part of the corporate employer, it is not punitively liable for the willful and wanton misconduct of its employees.

We begin our analysis of this case by affirming the long-established Florida rule that “the liability of a corporate master for punitive or exemplary damages for wanton or malicious torts committed by an agent or servant is no different from the liability of an individual master under the same circumstances.” Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214, 221 (1936). The fact that the employer in this case is a corporation rather than a natural person is not legally significant.

The determinative issue is under what circumstances may an employer under the doctrine of respondeat superior be held vicariously liable for punitive damages as the result of the willful and wanton misconduct of his employees committed while acting in the scope of their employment. Relevant to this issue is the distinction between compensatory and punitive damages. The objective of compensatory damages is to make the injured party whole to the extent that it is possible to measure his injury in terms of money. The plaintiff received $400,000 for compensatory damages, and the sufficiency of that award is not questioned. Punitive damages, on the other hand, go beyond the actual damages suffered by an injured party and are imposed as a punishment of the defendant and as a deterrent to others. Fisher v. City of Miami, 172 So.2d 455 (Fla.1965).

Plaintiff effectually argues that under the doctrine of respondeat superior, an employer without fault on his part will always be vicariously liable for punitive damages for the willful and wanton misconduct committed by his employees within the scope of their employment. We reject this argument.

In Alexander v. Alterman, the First District Court, in a similar factual situation, held that the plaintiff’s complaint was sufficient to allege liability on the part of the employer for compensatory damages caused by the negligent acts of its truck driver employee, but appropriately asked: “[W]hat wrong did Alterman commit that demanded that it be punished?” Answering that question, the district court said:

According to the third amended complaint, Alterman’s gross negligence was solely the act of operating a trucking business. Not a single allegation is found as to Alterman’s negligently failing to investigate or to otherwise verify Pen-ley’s ability to operate its truck in a law abiding manner; there is not a single allegation that Alterman knew or should have known Penley’s propensity to consume alcoholic beverages; there is not a single allegation that Alterman knew or should have known that Penley would operate its truck in a “grossly negligent manner and with outrageous, willful, wanton and utter disregard for other vehicles and users” ....
[T]he third amended complaint before us contains no allegation from which a jury could lawfully infer that the corporate defendant was negligent by employing or retaining in its employment the defendant, Penley, or that he possessed dangerous propensities known or which should have been known to his employer.

350 So.2d at 1130. The First District Court correctly held that in the absence of fault, an employer is not vicariously liable for punitive damages as the result of the actions of its employees within the scope of their employment.

After the district court’s decision in Alexander v. Alterman Transport Lines, Inc., 350 So.2d 1128 (Fla. 1st DCA 1977), the plaintiff in that case was allowed to amend his complaint as to punitive damage, and, when the case was tried, he was awarded punitive damage against the employer. The ease was again appealed to the First District Court of Appeal which affirmed the punitive damage award. Alexander v. Al- terman Transport Lines, Inc., 387 So.2d 422 (Fla. 1st DCA 1980). The amended complaint on which the case was tried alleged that Alterman Transport Lines knew or, in the exercise of reasonable care, should have known that immediately prior to embarking on his work assignment, its employee was in no condition to drive and operate his truck since he was under the influence of alcohol or some other drug or narcotic to the extent that his normal faculties were impaired, making it unsafe for him to drive. The issue of Alterman’s knowledge of its employee’s condition was presented to the jury by the court’s instructions. In the most recent Alexander decision, it is clear that the plaintiff alleged and the jury found fault on the part of the employer.

Alterman sought reversal of the punitive damage award by contending that even if its employee was intoxicated when he appeared at the terminal on the morning of the accident and even if it either knew or, in the exercise of reasonable care, should have known of his condition when he took charge of the truck, such conduct on its part was not sufficiently willful, wanton, or outrageous to justify an award of punitive damages. The district court correctly rejected this contention and held that willful, wanton, or outrageous conduct on the part of the employer, independent of the willful, wanton, or outrageous conduct of its employee-driver, is not a prerequisite to the vicarious punitive damage liability of the employer. In its earlier decision, the First District properly rejected the possibility of Alterman’s vicarious liability for punitive damages under the doctrine of respondeat superior, where the plaintiff alleged the willful, wanton, or outrageous conduct of the employee within the scope of his employment but failed to allege any fault on the part of the employer. A different result was justified in the subsequent case because the plaintiff alleged and proved not only willful, wanton, or outrageous conduct on the part of the employee but also negligence on the part of the employer which contributed to the plaintiff’s injury. Under those circumstances, the employer was properly held vicariously liable for punitive damages based upon the willful, wanton, or outrageous conduct of its employee.

An analogous situation involving the dangerous instrumentality doctrine was presented to the Second District Court in Waldron v. Kirkland, 281 So.2d 70 (Fla. 2d DCA 1973). In that case, the plaintiff sought punitive damages against the owner of the motor vehicle based upon the flagrant and reckless misconduct of the driver. The determinative issue was whether the owner, who was without fault, was vicariously liable for punitive damages. The district court affirmed the trial court’s partial summary judgment denying the plaintiff’s claim for punitive damages. The court said that the owner did not know his stepson, the driver, was drinking on the date of the accident or had ever consumed alcoholic beverages and concluded that had the owner known of his stepson’s propensity to drink, he would not have consented to his use of the motor vehicle. Acknowledging that the owner would be vicariously liable for compensatory damages, the court held that public policy is not served by also imposing liability for punitive damages when the owner is without fault. In other words, the court held that under the dangerous instrumentality doctrine, an owner is not vicariously liable for punitive damages just because he owned the motor vehicle.

As noted by the district court in Alexander v. Alterman Transport Lines, Inc., 350 So.2d at 1130, the issue presented in the present case was not considered or passed on by this Court in Bould v. Touchette, 349 So.2d 1181 (Fla.1977). In Bould, the plaintiff was awarded punitive damages against United States Concrete Pipe Company, the employer of Mitchell Touchette, who, in the course and scope of his employment, negligently caused the accident which was the subject of that suit. The only issue concerning punitive damages was Concrete Pipe’s contention that the award was excessive. The vicarious liability of the employer, Concrete Pipe, for punitive damages in the absence of fault on its part was not an issue in the case and was not considered by this Court.

We conclude that the principles of law which should be applied in this and in other similar respondeat superior cases are as follows: (1) An employer is vicariously liable for compensatory damages resulting from the negligent acts of employees committed within the scope of their employment even if the employer is without fault. This is based upon the long-recognized public policy that victims injured by the negligence of employees acting within the scope of their employment should be compensated even though it means placing vicarious liability on an innocent employer. (2) Punitive damages, however, go beyond the actual damages suffered by an injured party and are imposed only as a punishment of the defendant and as a deterrent to others. (3) Before an employer may be held vicariously liable for punitive damages under the doctrine of respondeat superior, there must be some fault on his part. (4) Although the misconduct of the employee, upon which the vicarious liability of the employer for punitive damages is based, must be willful and wanton, it is not necessary that the fault of the employer, independent of his employee’s conduct, also be willful and wanton. It is sufficient that the plaintiff allege and prove some fault on the part of the employer which foreseeably contributed to the plaintiff’s injury to make him vicariously liable for punitive damages.

Applying these principles, we hold that there is no basis for the punitive damage award against the defendant employer. The plaintiff alleges no fault on the part of the employer and relies entirely upon the master-servant relationship to make the employer vicariously liable for punitive damages. The district court should have reversed the punitive damage judgment.

In view of our determination that the punitive damage award must be reversed, we need not consider petitioner’s second point. The decision of the district court is quashed, and this cause is remanded for further proceedings consistent with this opinion.

It is so ordered.

BOYD, OVERTON, ENGLAND and MCDONALD, JJ., concur.

OVERTON, J., concurs with an opinion, with which McDONALD, J., concurs.

SUNDBERG, C. J., and ADKINS, J., dissent.

OVERTON, Justice,

concurring.

The public should clearly understand that there is no difference between the owner of a single motor vehicle and the operator of a truck line. If either one knowingly allows an intoxicated driver to drive his vehicle, he may be liable for punitive damages as well as compensatory damages.

McDONALD, J., concurs.


author: PER CURIAM.

text:
    Thomas Manin VARNADORE, Appellant, v. STATE of Florida, Appellee.
    No. 58552.
    Supreme Court of Florida.
    Jan. 22, 1981.
    Thomas Presnell, Jr., Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Doris E. Jenkins, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   PER CURIAM.

Affirmed. State v. Cain, 381 So.2d 1361 (Fla.1980).

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


text:
    CITIZENS of the State of Florida, Petitioners, v. FLORIDA PUBLIC SERVICE COMMISSION, Respondent.
    No. 58579.
    Supreme Court of Florida.
    Jan. 22, 1981.
    Jack Shreve, Public Counsel, Benjamin H. Dickens, Jr. and J. Roger Howe, Associate Public Counsels, and Michael McK. Wilson, Deputy Public Counsel, Tallahassee, for petitioners.
    Arthur C. Canaday, Acting Legal Director, and Norman H. Horton, Jr., Staff Counsel, Tallahassee, for respondent.
    Hugh C. Macfarlane and James V. Cari-deo, Tampa, and Richard M. Cahill and Donald J. Engleman, Stamford, Conn., for General Tel. Co., intervenor-respondent.
   PER CURIAM.

This cause having heretofore been submitted to the Court upon the transcript of record, briefs and argument of counsel to review the order of the Florida Public Service Commission in said cause, it is ordered that certiorari is denied.

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

ENGLAND, J., did not participate in the consideration of this case.


text:
    THE FLORIDA BAR, Complainant, v. Thomas A. BRATTEN, Respondent.
    No. 58277.
    Supreme Court of Florida.
    Jan. 22, 1981.
    Harris K. Solomon, Branch Staff Counsel, Fort Lauderdale, James P. Hollaway, Deputy Staff Counsel, Tallahassee, and Michael B. Davis of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for complainant.
    Fred A. Hazouri, of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, West Palm Beach, for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against attorney Thomas A. Bratten is before the Court on complaint of The Florida Bar and Report of Referee. Pursuant to article XI, Rule 11.06(9)(b) of the Integration Rule of the Florida Bar, the referee’s report and the record were filed with the Court.

No petition for review pursuant to article XI, Rule 11.09(1) having been filed, the referee’s findings of fact are to be deemed conclusive. Fla.Bar Integr.Rule, art. XI, Rule 11.09(3)(f). We therefore approve the referee’s recommendation that respondent be found not guilty of any misconduct.

Costs in the amount of $1,313.21 are hereby taxed against The Florida Bar.

It is so ordered.

BOYD, Acting C. J., and OVERTON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. William P. OWEN, Jr., Respondent.
    No. 58909.
    Supreme Court of Florida.
    Jan. 22, 1981.
    Walter G. Campbell, Jr., Chairman, Grievance Committee “E”, Fort Lauderdale, Wallace N. Maer, Bar Counsel, Miami, and Anita F. Dahlquist, Asst. Staff Counsel, Tallahassee, for complainant.
    William P. Owen, Jr., in pro. per.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against the respondent, William P. Owen, Jr., a member of The Florida Bar, rests upon four counts of commingling funds of clients and failure to use entrusted funds for the appropriate purposes. This cause is before us upon findings of the referee and recommended discipline of disbarment. No petition for review has been filed by either respondent or The Florida Bar.

The referee found respondent guilty of “gross misconduct in regard to the maintenance and handling of funds entrusted to him” in violation of Florida Bar Code of Professional Responsibility, Disciplinary Rules 9-102(A) and 9-102(B)(3) and (4), and Rule 11.02(4) of the Integration Rule of The Florida Bar. Counts II and IV allege that respondent was entrusted with funds by clients for specific purposes and that his checks to the receiving parties were returned due to insufficient funds, despite the clear requirement of Integration Rule 11.-02(4) that money entrusted to an attorney for a specific purpose be held in trust and used only for that purpose. Count I alleges that respondent, as personal representative and attorney for an estate, commingled the assets of a revocable trust which he controlled for the estate with his personal funds and with funds of other clients. As a result, the trust funds were never fully and properly disbursed to the beneficiaries of the trust fund as required by its terms. Respondent also failed to provide the beneficiaries with a full and accurate accounting of the estate assets. Count III states that respondent was entrusted with funds for the express purpose of effecting repairs upon real estate for a client. After expiration of the time period set forth in the related escrow agreement, respondent neither returned the unexpended funds to the seller, made a proper accounting to the parties involved, nor deposited the money in the registry of the circuit court for equitable disposal.

We have reviewed the record and agree with the referee’s findings and recommendation of guilt. We further agree that these flagrant violations of the cited trust rules require disbarment.

Accordingly, William P. Owen, Jr., is hereby disbarred, effective immediately. The filing of a motion for rehearing shall not alter the effective date of this disbarment.

Execution is directed to issue for the costs of these proceedings against the respondent in the amount of $284.45.

It is so ordered.

ADKINS, Acting C. J., and OVERTON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.


author: BOOTH, Judge.

text:
    FLORIDA FARM BUREAU MUTUAL INSURANCE COMPANY, Appellant, v. Gene W. RICE, Appellee.
    No. MM-237.
    District Court of Appeal of Florida, First District.
    Oct. 27, 1980.
    Rehearing Denied Dec. 8, 1980.

      Luke G. Galant, of Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for appellant.
    David R. Lewis and Fred C. Isaac, of Lewis, Paul, Isaac & Castillo, Jacksonville, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from a final judgment awarding damages in excess of policy limits against appellant, Florida Farm Bureau, based on its failure to defend its insured in a personal injury action brought by appellee, Rice. The instant case is predicated on the earlier personal injury action, wherein Gene Rice, as plaintiff, recovered a consent judgment of $75,000 plus costs against Wayne Eichholz, driver of the car which struck the motorcycle ridden by Rice. Eichholz was the insured under an automobile liability policy issued by Farm Bureau, but the insurer denied coverage for the accident and refused to defend Eichholz in the suit. The trial court appointed an attorney to represent Eichholz under the provisions of the Soldiers Civil Liberty Act, and judgment was subsequently entered based on the consent agreement of attorneys for Eichholz and Rice. Thereafter, Rice brought suit as a third party beneficiary under Eichholz’s policy against Farm Bureau for the full amount of the judgment obtained. The cause was tried by the court without a jury and resulted in the final judgment herein sought to be reviewed on the full amount of the personal injury judgment plus interest and costs.

The accident resulting in serious injury to Rice occurred on April 29, 1977. Rice was riding as a passenger on a motorcycle when struck by a Pontiac automobile driven by Wayne Eichholz and owned by Eichholz's mother-in-law, Evelyn Larsen. At the time of the accident, there was in effect a policy of automobile liability insurance issued to Eichholz, under which a pickup truck owned by Eichholz was the described vehicle. Mrs. Larsen had no insurance policy on her automobile.

Eichholz reported the collision to Farm Bureau through his agent, a file was opened on the claim and the agent took a recorded statement from Eichholz concerning the details of the collision and his possession and use of the Larsen automobile. A few weeks later, another Farm Bureau agent, Richard McCulloch, took over the claim file and advised both his principal, Farm Bureau, and the attorney for the plaintiff that there was no coverage under the policy because Mrs. Larsen was a member of the household and, also, because the automobile involved in the accident was regularly available for the use of her son-in-law.

After the foregoing determination was made by agent McCulloch, he took a second recorded statement from Eichholz, which indicated the incorrectness of the factual basis for denying coverage. This second interview revealed that, in fact, the mother-in-law was not a member of the Eichholz household and that the vehicle had been in a state of disrepair and non-operable until the day prior to the accident. Agent McCulloch, however, remained silent with regard to the second statement and did not reveal the facts indicating there was coverage. Finally, the agent sent Farm Bureau’s attorney a copy of a Farm Bureau policy other than the one issued to Eichholz and which contained exclusionary provisions materially different from the correct policy. The trial court found that Farm Bureau’s attorney relied on the incorrect policy furnished by the Farm Bureau agent and sent a copy of this policy to plaintiff’s attorney, with the result that Farm Bureau was dropped as a party to the lawsuit.

At this point, Eichholz was without defense or coverage in the suit. He was in the Naval service and, therefore, able to apply to the court for an appointment of an attorney ad litem to represent him. The attorney appointed consulted with his client and met with the attorneys for the plaintiff. A consent settlement was negotiated in the personal injury action, which was submitted to the circuit court and judgment entered therein against Eichholz.

After the consent judgment was entered, the difference in the Farm Bureau policy issued to Eichholz and the one submitted by Farm Bureau’s agent, McCulloch, to Farm Bureau’s attorney, and in turn to Rice’s attorney, was revealed for the first time. Also revealed were statements given by Eichholz to Farm Bureau which made apparent the lack of basis for Farm Bureau’s decision to deny coverage and defense to Eichholz.

At trial, all of the foregoing matters, as well as the deposition of Evelyn Larsen and of Rice’s treating physician, were received in evidence. The trial court also heard the testimony of all parties and of two practicing attorneys who testified with respect to the reasonableness of the consent settlement in the earlier case.

On appeal to this court, appellant contends that the trial court erred in: (1) holding that there was coverage under the insurance policy; (2) finding Farm Bureau was guilty of bad faith; and (3) approving the consent judgment entered in the personal injury action.

Farm Bureau contends that the Pontiac automobile owned by Eichholz’s mother-in-law was at the Eichholz residence from January 11, 1977, to the date of the accident, April 29, 1977, and was available for Eichholz’s use, within the terms of the policy exclusion. The policy in question provides that Eichholz has liability coverage while driving “any auto” with the following pertinent exclusions:

We do not provide Liability Coverage:
9. For the ownership, maintenance or use of any vehicle, other than your covered auto, which is owned by you or furnished or available for your regular use.
10. For the ownership, maintenance or use of any vehicle, other than your covered auto, which is owned by or furnished or available for the regular use of any family member. However, this exclusion does not apply to you.

The policy defines “family member” as “a person related to you by blood, marriage or adoption who is a resident of your household, including a ward or foster child.”

The trial court found that, in February of 1977, Mrs. Larsen left her vehicle at the Eichholz house and went to Richmond, Virginia, where she remained for some 16 months. At the time Mrs. Larsen left, some months before the accident, the vehicle was inoperable, needing a major tuneup and repairs. The day prior to the accident, Eichholz surrendered his pickup truck to the dealer who sold it to him and received a rebate due to the dealer’s inability to furnish a title certificate on the vehicle. On the same day that he returned his own vehicle to the dealer, Eichholz partially repaired the Pontiac so that it became operable, and he was able to drive it to work on the following day, the day of the accident. The accident occurred after work while Eichholz was on route to purchase additional parts for the car and to buy a current license tag. The trial court found that the vehicle was operated on the highways for the first time on the day of the accident when it was being used because Eichholz was without other transportation. The trial court further held:

The Court ... concludes that the automobile which Eichholz was driving at the time of the accident had not been furnished or available for his regular use; that the automobile being driven by Eich-holz at the time of the accident was not owned by any “family member” as that term is defined in the true policy issued to Eichholz and even if it had been so owned by a “family member”, such fact would not exclude the automobile from coverage under paragraph 10 of the “Exclusions” portion of Eiehholz’s policy while the automobile was being operated by the named insured, Wayne Eichholz . . . .
No reasonably prudent insurance company should have declined coverage and refused to defend under the “automobile owned by a family member” exclusion or under the “automobile furnished to the insured for his regular use” exclusion, or under any other exclusion in the Eichholz policy, under the circumstances involved. From the evidence it appears that the only investigation made by the defendant on the coverage question consisted of two interviews with Eichholz (one by telephone). The two Eichholz statements, taken as a whole, clearly show that the automobile had not been furnished to him for his regular use. These statements, plus the information imparted by Eich-holz to defendant’s investigator on August 29, 1977 immediately following the completion of the recorded statement of that date also show rather clearly that the owner of the automobile, Mrs. Larson, was not at any time a regular member of the Eichholz household, but had only visited in the Eichholz home from time to time prior to her incarceration in Virginia and had maintained a separate residence prior to leaving for Virginia.

Assuming that bad faith is required for recovery over policy limits in a case such as this where there is a refusal to defend, the trial court’s finding of bad faith is supported by the evidence. The duty of a liability insurer to defend its insured is distinct from, and broader than, the duty to indemnify. The policy gives the insurer the right to defend, to control the investigation, handling and settlement of a lawsuit, and its duty to the insured in the exercise of these rights is in the nature of a fiduciary one, requiring exercise of good faith. Thus, while an insurance company is within its rights in making a thorough investigation to determine whether the accident in question comes within the coverage of its policy, the company acts at its peril in refusing to defend its insured and will be held responsible for the consequences. By agreement with the insured, the insurer may undertake to investigate and to defend its insured without compromising its right to contest coverage. The trial court found the insurer obtained execution by the insured of what is referred to as a non-waiver agreement on August 22, 1977, apparently allowing the insurer’s investigation of the accident without compromise of its claim of no coverage but did not seek a reservation of rights agreement to allow it to undertake the defense of its insured.

In the instant case, the company’s refusal to defend left its insured without the defense contracted and paid for under the policy. The denial of coverage left the insured without a viable basis for receiving or responding to settlement offers within the limits of any insurance policy. The trial court correctly ruled that the result was to subject the insured to the personal judgment subsequently entered. The insurer chose to rely on the representations and recommendations as to coverage of its agent and is held responsible for those actions.

Farm Bureau’s third point on appeal is that the trial court erred in approving the consent judgment since the insurer was never given the opportunity to participate in settlement, the judgment was excessive and no good faith defense was made by the attorney ad litem who had formerly been an associate of one of plaintiff’s counsel. As noted by the trial court, once a company has denied coverage and refused to defend, the existence of settlement offers is not a prerequisite to the establishment of a cause of action for excess. In American Fidelity Fire Insurance Company v. Johnson, 177 So.2d 679 (Fla. 1st DCA 1965), failure to communicate a settlement offer to the insurer after the insurer’s refusal to defend was held no defense to the excess suit. The court stated:

Surely Johnson should not be penalized for failure to do the idle act of notifying American Fidelity of the settlement offer after it had renounced the contract and washed its hands of the whole affair.
Having chosen to step aside, American Fidelity cannot now receive the benefit of any different course it might have pursued had it taken command of the litigation.

Nor can the insurer here be heard to complain of the reasonableness of the consent judgment entered below without the insurer’s participation. Here again, its failure to assume its contractual obligations was voluntary and undertaken with full appreciation of the risk involved.

As to the contention that the judgment was brought about through “bad faith, fraud, collusion and without any effort to minimize the amount of said judgment,” there was no substantial evidence introduced to support these contentions. The testimony showed, in fact, that the settlement was reasonable under all the circumstances and that there was no collusion. The rule of Taylor v. Safeco Insurance Company, 361 So.2d 743 (Fla. 1st DCA 1978), is inapplicable where, as here, the consent judgment was not fraudulent or collusive.

Finally, the parties agree that the final judgment here contains a typographical error, adding $4,000 to the amount of the judgment in the initial suit. The sum of $4,000 is hereby stricken from the judgment below, and the judgment, as corrected, is AFFIRMED.

ROBERT P. SMITH, Jr., and ERVIN, JJ., concur.

      . 50 U.S.C.App., §§ 501 et seq.

      . Incorrect policy furnished by Farm Bureau agent contained this exclusion:
      (1) to any automobile owned by or furnished for regular use to either the named insured or a member of the same household.
      Correct Eichholz policy provision is set out infra, at pages 554-555.

        . Thomas v. Western World Ins. Co., 343 So.2d 1298, 1304 (Fla. 2d DCA 1977), cert. dismissed 348 So.2d 955 (1977).
      In the case before us, there is no threshold question of “good faith” vs. “bad faith.” For here, the company exercised no faith at all. It simply wrongfully refused to comply with its contract to provide a defense on behalf of its insureds.

      The concept of “bad faith” is a viable and useful test for determining damages against an insurance company within the context of settlement negotiations and defense of claims against its insureds. But, employment of the test presupposes the company is attempting to exercise skill, judgment and fidelity on their behalf. Appellee concedes that it did not measure up to this standard.

      . 1 Long, Liability Insurance, § 5.01 at 5-7 (1974):
      The insurer’s duty to defend is more extensive than its duty to pay. If the allegations of the injured third party’s complaint show that an accident or occurrence comes within the coverage of the policy, the insurer is obligated to defend, regardless of the ultimate liability of the insured.

        National Union Fire Insurance v. Lenox Liquors, 358 So.2d 533 (Fla.1977); Accredited Bond Agencies v. Gulf Insurance, 352 So.2d 1252 (Fla. 1st DCA 1977).

      . Baxter v. Royal Indemnity Co., 285 So.2d 652, 656 (Fla. 1st DCA 1973); Boston Old Colony v. Cateriz, 386 So.2d 783 (Fla.1980):
      For when the insured has surrendered to the insurer all control over the handling of the claim, including all decisions with regard to the litigation and settlement, then the insurer must assume a duty to exercise such control and make such decisions in good faith and with due regard for the interests of the insured.

      . No copy of the non-waiver agreement is of record here.


author: PER CURIAM. PER CURIAM.

text:
    Samuel CHATMAN, Appellant, v. STATE of Florida, Appellee.
    No. 79-1441.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1980.
    Rehearing Denied Feb. 25, 1981.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff and Jon May, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment and sentence following appellant’s conviction for second degree murder.

Among the points raised on appeal is a challenge to the constitutionality of Section 947.16(3), Florida Statutes (1979) which authorizes the trial court to retain jurisdiction over a defendant sentenced to imprisonment for the first one-third of the term of imprisonment. However, the record reveals and the appellant concedes that absolutely no objection of any kind or at any time was made to such action in the trial court. See Williams v. State, 378 So.2d 837 (Fla. 1st DCA 1979). Accordingly, we do not believe the appellant has properly preserved his challenge to the statute. This decision is rendered, however, without prejudice to the appellant to challenge the statute should his term of incarceration actually be affected by any action taken by the trial court pursuant to its retention of jurisdiction.

We have reviewed the other points raised on appeal and find them to be without merit. Accordingly, the judgment and sentence of the trial court are affirmed.

ANSTEAD, BERANEK and HERSEY, JJ., concur.

ON REHEARING

PER CURIAM.

We deny the petition for rehearing except to clarify our opinion by noting that our decision is rendered without prejudice to appellant to challenge Section 947.16(3), Florida Statutes (1979) in any post-conviction relief proceedings.

ANSTEAD, BERANEK and HERSEY, JJ., concur.


text:
    Timothy Wayne BARNHILL, Appellant, v. STATE of Florida, Appellee.
    No. 79-1880.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 1980.
    On Rehearing Feb. 18, 1981.

      Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, and James K. Green, of Brown & Green, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Paul H. Zaeks and Stewart J. Bellus, Asst. Attys. Gen., West Palm Beach, for appellee.
   WETHERINGTON, GERALD T., Associate Judge.

This appeal raises questions of construction of the Youthful Offender Act, Section 958.04, Florida Statutes (1979), which reads in part as follows:

(1)The court may classify as a youthful offender any person:
(a) Who is at least 18 years of age or who has been transferred for prosecution to the criminal division of the circuit court pursuant to chapter 39;
(b) Who is found guilty of or who has tendered, and the court has accepted, a plea of nolo contendere or guilty to a crime which is, under the laws of this state, a felony of the first, second, or third degree if such crime was committed before the defendant’s 21st birthday; and
(c) Who has not previously been classified a youthful offender under the provisions of this act; however, no person who has been found guilty of a capital or life felony may be classified a youthful offender under this act.
(2) A person shall be classified a youthful offender if such person meets the criteria of subsection (1) and such person:
(a) Has not previously been found guilty of a felony, whether or not the adjudication of guilt has been withheld; or
(b) Has not been adjudicated delinquent for an act which would be a capital, life, or first degree felony if committed by an adult.
(3) A person excluded from classification as a youthful offender under subsection (2) by virtue of having been previously found guilty of a crime which if committed in Florida would be a felony of the first, second or third degree under the laws of this state may be classified a youthful offender after consideration of the following criteria . ..

The appellant entered no contest pleas to charges of kidnapping and attempted first degree murder committed during one criminal episode against the same victim. On the kidnapping charge, the court held that since the appellant had no prior criminal record and met the criteria of subsection (1) of the section of the Youthful Offender Act quoted above, he was required under subsection (2) thereof to be sentenced as a youthful offender. He was accordingly sentenced on the kidnapping charge to four (4)years incarceration and two (2) years in a community control program-the maximum allowed under the Youthful Offender Act.

On the attempted first degree murder charge, the court sentenced the appellant to 20 years imprisonment, to run concurrently with the sentence on the kidnapping charge. The court held that appellant’s kidnapping conviction constituted a previous felony conviction which disqualified him from mandatory youthful offender treatment under the language of subsection (2)(a) above, which denies mandatory youthful offender treatment to a defendant who has “previously been found guilty of a felony.”

Appellant contends first that subsection (2) above provides for mandatory youthful offender classification for defendants who satisfy its criteria and next, that his kidnapping conviction entered shortly before his attempted murder conviction was not a previous felony conviction within the meaning of subsection (2)(a) above. Therefore, he concludes, the trial court was required to classify him as a youthful offender on the attempted murder charge and committed error in refusing to do so.

We agree with appellant’s first contention. As stated in Killian v. State, 387 So.2d 385 (Fla. 2d DCA 1980):

Despite the discretionary language of subsection (1), the clear mandate of subsection (2) is that if a person meets the criteria of subsection (1) and has not previously been found guilty of a felony or adjudicated delinquent for an act which would be more than a second degree felony, he is entitled, as a matter of right, to be sentenced as a youthful offender. Id. at 386.

Accord: Goodson v. State, 392 So.2d 1335 (Fla. 1st DCA 1980).

Appellant’s next contention is that his kidnapping conviction entered before his attempted murder conviction was not a previous felony conviction under subsection (2)(a) above. Appellant asserts that the holding and reasoning in Shead v. State, 367 So.2d 264 (Fla. 3d DCA 1979), should be applied in construing subsection (2)(a). In Shead, the court held that two convictions entered on the same day must be treated as one conviction under the habitual criminal statute, Section 775.084, Florida Statutes (1979). This holding was based upon the court’s construction of the purpose of the habitual criminal statute as being to provide enhanced punishment for habitual criminals who persist in engaging in criminal conduct after being previously convicted and punished for the commission of a crime.

If the holding and reasoning in Shead were applied in construing subsection (2)(a), then a defendant who committed a series of felonies before being apprehended would be required to be sentenced as a youthful offender on all charges if he pled guilty or was convicted of them on the same day. This result would clearly be unreasonable and has been rejected in Killian v. State, supra.

The defendant in Killian was charged with nine (9) felonies and three (3) misdemeanors apparently arising out of a number of criminal episodes. The charges were consolidated for trial, and the defendant pled guilty to all of them. The court refused to sentence him under the Youthful Offender Act.

On appeal, the Second District Court of Appeal affirmed. The court correctly held that the purpose of the Youthful Offender Act is to provide the court with a “sentencing tool which enables the court to give the most appropriate sentence to each person in each particular case.” The court further held that this purpose is different than the purpose of the habitual criminal statute as stated in Shead, and consequently, the holding and reasoning in Shead is inapplicable to the construction of the Youthful Offender Act. The court thus held that,

appellant had “previously been found guilty of a felony” as specified in Section 958.04(2)(a), Florida Statutes (Supp.1978), when the court sentenced him for each of the crimes involved in this appeal.

The holding in Killian is supported by the analogous holding of the Florida Supreme Court in Lucas v. State, 376 So.2d 1149 (Fla.1979), in which the defendant appealed his conviction and death sentence for first degree murder. Within a few minutes after murdering one person, the defendant attempted to murder two other persons. He was contemporaneously convicted of the two counts of attempted murder and the count of murder in the first degree. The trial judge considered the attempted murder convictions as an aggravating factor under the death penalty statute, Section 921.141(5)(b), Florida Statutes (1975), which listed as an aggravating factor:

(b) The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.

In affirming the holding of the trial judge on this point, the court stated as follows:

It is true that the two felony convictions were entered contemporaneously with the conviction of murder in the first degree, but both were entered “previous” to sentencing and were therefore appropriately considered by the trial judge as an aggravating factor.

The appellant has argued that the situation in Killian is distinguishable from the situation in the instant case on the ground that Killian involved the commission of felonies during more than one criminal episode. This argument is unpersuasive. The law recognizes no distinction between the commission of kidnapping and attempted murder in one criminal episode or in two. In both cases, the crimes constitute separate felonies and are subject to the same punishment whether committed in one criminal episode or more.

It should also be observed that the construction of subsection (2)(a) of Section 958.04, Florida Statutes (1979) contended for by appellant would lead to an illogical result in the present case. The trial judge held that the appellant was deserving of the maximum split sentence of six (6) years allowed under the Youthful Offender Act on the kidnapping charge. If appellant’s argument were accepted, he would go unpunished for committing attempted murder. Such an illogical intent cannot be properly imputed to the legislature.

The conclusion that we reach herein has also been reached in Goodson v. State, 392 So.2d 1335 (Fla.App. 1st DCA 1980). The court in Goodson stated that:

“Goodson was adjudicated guilty of two robberies based on previous pleas of guilty. Thereafter, he was sentenced on both charges. Thus, at the time of sentencing, he had been previously found guilty of a felony other than the felony qualifying him under the act.
The scheme of the act indicates the legislature contemplated mandatory classification for young persons committing their first and only felony. Otherwise, the legislature has wisely provided for discretionary sentencing, with the court considering, among other things, the likelihood of reasonable rehabilitation and whether classification would reflect the seriousness of the offense, promote respect for law, and provide for just punishment.” Id. at 1338.

We therefore hold that a defendant who has been found guilty of more than one felony at the time of sentencing is disqualified from mandatory youthful offender classification under subsection (2) of Section 958.04, Florida Statutes (1979). Such defendant, however, may be sentenced as a youthful offender in the discretion of the court after consideration of the criteria set forth in subsection (3) of Section 958.04, Florida Statutes (1979).

Under this holding, the trial judge was not required to sentence the appellant as a youthful offender on either the kidnapping conviction or the attempted first degree murder conviction, since the appellant had been found guilty of two felonies at the time of sentencing.

AFFIRMED.

HERSEY and GLICKSTEIN, JJ., concur.

ON REHEARING

We adhere to our original opinion. It has been called to our attention by way of petition for rehearing that the court in Goodson v. State, 392 So.2d 1335 (Fla.App. 1st DCA 1980) relied on in our opinion, has, on rehearing, certified the following question to the Florida Supreme Court:

[I]s a person excluded from mandatory classification under section 958.04[2][a], Florida Statutes (Supp. 1978) when prior to sentencing the offender has been found guilty of a qualifying felony under the act and has simultaneously been found guilty of other felonies?

Appellant suggests that we do the same, rewording the question to include a facet of the instant case not present in Goodson ; that is, by adding at the end of the question the phrase “arising from the same criminal episode.” We originally held, and we reiterate, that there is no judicially cognizable distinction in this context between two felonies committed on different days and two felonies arising out of the same criminal episode. We therefore decline to add the suggested language but in order to preserve appellant’s rights we certify the following question to the Supreme Court of the State of Florida as one of great public interest:

[I]s a person excluded from mandatory classification under section 958.04[2][a], Florida Statutes (Supp. 1978) when prior to sentencing the offender has been found guilty of a qualifying felony under the act and has simultaneously been found guilty of other felonies?

HERSEY and GLICKSTEIN, JJ., concur.


text:
    DEPARTMENT OF REVENUE of the State of Florida, a state agency, and Randy Miller, its Executive Director, Appellants, v. David L. REID, as Palm Beach County Property Appraiser and a citizen and taxpayer of Palm Beach County, Florida, Appellee.
    No. 80-1414.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 1980.
    Rehearing Denied Feb. 25, 1981.
    Jim Smith, Atty. Gen., E. Wilson Crump, II, Asst. Atty. Gen., and David Linn, Atty., Dept, of Revenue, Tallahassee, for appellants.
    J. Elliott Messer and James C. Hauser of Thompson, Messer, Rhodes, Vickers & Hart, Tallahassee, for appellee.
   PER CURIAM.

Affirm. See, Slay v. Department of Revenue, 317 So.2d 744 (Fla.1975).

ANSTEAD, MOORE and HERSEY, JJ., concur.


author: HURLEY, Judge.

text:
    HASAM REALTY CORP., a Delaware corporation, Appellant, v. CITY OF HALLANDALE, a Florida municipal corporation, Art Canon, as Mayor of the City of Hallandale; Arthur Rosenberg, as Vice-Mayor of the City of Hallandale; Milton Weinkle, as City Commissioner; Sam Waterman, as City Commissioner; Jack Spiegel, as City Commissioner, Appellees.
    No. 80-170.
    Rehearing Denied Feb. 27, 1981.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 1981.

      Gerald Mager of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P. A., Hollywood, for appellant.
    James T. Schoenbrod, Asst. City Atty., Hallandale, for appellees.
   HURLEY, Judge.

This is an appeal from the dismissal with prejudice of a petition for writ of mandamus. The trial court found that the allegations of the petition coupled with the attached exhibits conclusively established that mandamus was not an appropriate remedy. Thus, the court dismissed the petition without first issuing an order to show cause. We affirm for the reasons set forth below.

Appellant, Hasam Realty Corp., owns and operates the Diplomat Country Club in Hal-landale. At present, the club has what is called a “4COP” alcoholic beverage license which allows the consumption of alcoholic beverages on its premises until 2:00 A.M. In July of 1979, pursuant to a city ordinance, Hasam filed an application with the city of Hallandale for an extension of operating hours, seeking to remain open until 4:00 A.M. Following review, the city’s planning department recommended approval while the planning and zoning board recommended denial.

Ultimately, the issue was brought before the city commission, the legislative body with final authority to approve or reject such applications. A public hearing was held at which Hasam presented testimony indicating that extension of the club’s operating hours would have a negligible impact on traffic, noise, safety and similar factors affecting the neighborhood. On the other hand, several concerned residents testified that such an extension would have an adverse effect on the quality of life in the adjoining residential area.

The city commission denied Hasam’s application and Hasam filed a petition for writ of mandamus in the Circuit Court of the Seventeenth Judicial Circuit of Florida. The petition contained comprehensive factual allegations and was accompanied by numerous exhibits, one of which was a verbatim transcript of the December 18, 1979, city commission meeting at which Hasam’s application was considered and denied.

On appeal, Hasam questions the trial court’s action of ruling on the petition without first issuing an order to show cause. In this respect, we initially note that under Rule 9.100(f), Fla.R.App.P., the issuance of an order to show cause is a discretionary act:

If the petition demonstrates a preliminary basis for relief, a departure from the essential requirements of law, or that review of final administrative action would not provide an adequate remedy, the court may issue an order directing the respondent to show cause, within the time set by the court, why relief should not be granted. (Emphasis supplied).

More fundamental, however, is the rule of logic that courts are not required to perform useless gestures. In the case at bar, all relevant material was supplied by Ha-sam, either in its petition or in the attached exhibits. Taken together, they irrefutably demonstrate that an appropriate legislative body reached a valid determination on a discretionary matter and consequently mandamus is inappropriate.

Mandamus lies to compel action of a mandatory or ministerial nature, Permenter v. Younan, 159 Fla. 226, 31 So.2d 387 (1947), but applies to discretionary actions only when a clear abuse of discretion is shown. State ex rel. Moody v. Barnes, 25 Fla. 298, 5 So. 722 (Fla. 1889). The term “abuse of discretion” does not encompass unwise or mistaken decisions as long as there are grounds on which the decision could be made. Id. at 726. Abuse of discretion arises when there is no conceivable basis for the decision. Such is not the situation here.

By Ordinance 78-22 of the City of Hal-landale, Florida, the city commission is given non-exclusive criteria with which to analyze an application for extended operating hours. The commission is not required to confine itself to the enumerated items or to weigh them equally so that compliance with a majority would mandate approval of the application. Rather, the commission is given legislative authority to weigh all relevant factors and make a discretionary, not to say arbitrary, decision. Having before it substantive testimony both for and against the extension of appellant’s operating hours, the commission’s denial of Hasam’s application was within its discretion, for which this court may not substitute its own judgment.

AFFIRMED.

DOWNEY, J., and SHARP, G. KENDALL, Associate Judge, concur.