text:
    John Errol FERGUSON, Appellant, v. STATE of Florida, Appellee.
    No. 55137.
    Supreme Court of Florida.
    July 15, 1982.

      Michael S. Hacker of Hacker, Phelps & Matters, Miami, for appellant.
    Jim Smith, Atty. Gen., and Margarita Esquiroz and Calvin L. Fox, Asst. Attys. Gen., Miami, for appellee.
   ADKINS, Justice.

This is a direct appeal from an order adjudging the appellant guilty of six counts of murder in the first degree, two counts of attempted murder in the first degree, and three counts of robbery with a firearm, and imposing sentences of death and imprisonment. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

On July 27,1977, at approximately 8:15 p. m. the defendant, posing as an employee of the power company, requested permission from Margaret Wooden to enter her Carol City home and check the electrical outlets. After gaining entry and checking several rooms, the defendant drew a gun and tied and blindfolded Miss Wooden. He then let two men into the house who joined the defendant in searching for drugs and money-

Some two hours later, the owner of the house, Livingston Stocker, and five friends returned home. The defendant, who identified himself to Miss Wooden as “Lucky,” and his cohorts tied, blindfolded and searched the six men. All seven victims were then moved from the living room to the northeast bedroom.

Shortly thereafter, Miss Wooden’s boyfriend, Miller, entered the house. He too was bound and searched. Then he and Miss Wooden were moved to her bedroom and the other six victims returned to the living room.

At some point one intruder’s mask fell, revealing his face to the others. Miller and Wooden were kneeling on the floor with their upper bodies lying across the bed. Wooden heard shots from the living room then saw a pillow coming toward her head. She was shot. She saw Miller get shot then heard the defendant run out of the room. She managed to get out and run to a neighbor’s house to call the police.

When the police arrived they found six dead bodies. All had been shot in the back of the head, their hands tied behind their backs. One of the victims, Johnnie Hall, had survived a shotgun blast to the back of his head. He testified to the methodical execution of the other men.

On September 15, 1977, the defendant and three co-defendants were indicted for the offense. Adolphus Archie, the “wheel-man”, was allowed to plead guilty to second degree murder and a twenty-year concurrent sentence on all counts in exchange for testimony at trial. He testified he’d dropped the defendant, Marvin Francois, and Beauford White in the Carol City area to “rip off” a drug house. He didn’t see the actual shooting but later saw unfamiliar weapons and jewelry in Beauford’s and Francois’ possession.

The defendant was tried alone and convicted on all counts. After an advisory sentencing hearing the jury recommended death. The judge followed that recommendation.

Four issues are raised on appeal. One is patently without merit. The death penalty in Florida as prescribed in section 921.141, Florida Statutes (1977), has been upheld repeatedly against arguments that it constitutes cruel and unusual punishment or violates the constitutional guaranties of equal protection and due process. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960,. 49 L.Ed.2d 918 (1976); Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978).

A second issue raised by defendant was that the trial court had failed to provide written findings in support of the sentence of death. § 921.141(3), Fla.Stat. (1977). Inasmuch as the supplemental record includes the trial judge’s written findings this issue is now moot.

The third issue involves the following allegedly improper comment by the prosecution in closing argument: “[N]ot only did [defense counsel] ask you to find a scapegoat for Mr. Ferguson’s guilt, he puts the blame on someone else who has already been found guilty, Marvin Francois.” A victim had identified Francois as an accomplice and the wheelman also implicated Francois. The defendant thus argues that the above comment said to the jury, if Francois is guilty then, ipso facto, defendant must be guilty.

There are several reasons we decline to find reversible error in this comment. First, the only objection made to the comment was a general one, followed by a motion for a mistrial. It is well settled that objections must be made with sufficient specificity to apprise the trial court of the potential error and to preserve the point for appellate review. Castor v. State, 365 So.2d 701 (Fla.1978); Clark v. State, 363 So.2d 331 (Fla.1978). The desirability and need for specified grounds also apply to motions for mistrials. A mistrial is a device used to halt the proceedings when the error is so prejudicial and fundamental that the expenditure of further time and expense would be wasteful if not futile. Johnsen v. State, 332 So.2d 69 (Fla.1976). Even if the comment is objectionable on some obvious ground, the proper procedure is to request an instruction from the court that the jury disregard the remarks. A motion for mistrial is addressed to the sound discretion of the trial judge and “the power to declare a mistrial and discharge the jury should be exercised with great care and should be done only in cases of absolute necessity.” Salvatore v. State of Florida, 366 So.2d 745, 750 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (citations omitted). Even if the general objection and request for a mistrial properly preserved this point for appellate review, we find that the trial judge correctly denied the motion. The comment was made on rebuttal in response to the theory presented by the defense during its closing argument that Francois and White had committed the crime and the defendant had never even been in the house, but had been misidentified by the victims. The prosecutor’s comment fell within the bounds of a “fair reply” which is permissible in this instance. See Brown v. State, 367 So.2d 616 (Fla.1979). Viewed in this context, the comment on Francois’ guilt was not sufficiently prejudicial to warrant a mistrial in this case. Cf. Thomas v. State, 202 So.2d 883 (Fla. 3d DCA 1967) (prosecutor told jury of accomplice’s conviction during voir dire and again during trial); and Moore v. State, 186 So.2d 56 (Fla. 3d DCA 1966) (judge announced co-defendant’s guilty plea to jury as explanation for recess during trial). The fact that a jury hears of an accomplice’s guilt does not necessarily constitute reversible error. See, e.g., Sanders v. State, 241 So.2d 430 (Fla. 3d DCA 1970); Walters v. State, 217 So.2d 615 (Fla. 2d DCA 1969); Vitiello v. State, 167 So.2d 629 (Fla. 3d DCA 1964); Grisette v. State, 152 So.2d 498 (Fla. 1st DCA 1963).

Defendant’s final point on appeal concerns the testimony of Adolphus Archie, the “wheelman” who was allowed to plead to second degree murder for testifying. On direct examination Archie stated that the defendant knew Joe Swain (the person who allegedly orchestrated the killings) because “the first time .. . my first time in prison, all three of us was together.” A general objection was overruled and a motion for mistrial denied. Initially, we reiterate our emphasis on the importance of stating specific grounds for objections and motions for mistrials. Also, especially in an instance such as this, a curative instruction should be requested. The defendant now contends that a prior imprisonment was irrelevant to his guilt or innocence in this case; the only result would be to show the defendant’s “bad character.” Such remarks may be erroneously admitted yet not be so prejudicial as to require reversal. Darden v. State, 329 So.2d 287 (Fla.1976), cert. denied, 429 U.S. 1036, 97 S.Ct. 729, 50 L.Ed.2d 747 (1977); Thomas v. State, 326 So.2d 413 (Fla.1975). In Smith v. State, 365 So.2d 405 (Fla. 3d DCA 1978), the court noted that any prejudice arising from the admission of testimony indicating defendant’s prior incarceration could have been corrected by an instruction to the jury to disregard the testimony. The court held that in the absence of a defense request for such an instruction, the trial court properly denied the motion for a mistrial. Our review of this record persuades us that the admission of Archie’s testimony in this matter was not so prejudicial as to warrant a reversal. See Clark v. State, 363 So.2d 331 (Fla.1978).

The defendant in this case has not specifically attacked the sufficiency of the evidence supporting the conviction. It is nonetheless our duty to review the entire record. Tibbs v. State, 337 So.2d 788 (Fla.1978). It is abundantly clear that the evidence was sufficient and we therefore uphold the conviction.

We have also conducted an independent review of the sentencing proceedings and trial court’s findings in aggravation and mitigation. Harvard v. State, 375 So.2d 833 (Fla.1977). That court found:

In support of this determination, the Court makes the following Findings of Fact relative to aggravating circumstances, consistent with Section 921.141(5) Florida Statutes.

(a) The crime for which the defendant was sentenced was committed while the defendant was under sentence of imprisonment. He had been convicted in The Circuit Court of the Eleventh Judicial Circuit in Case No. 76-4822, On September 16, 1976, of resisting an officer with violence and had been sentenced to The State Penitentiary for eighteen months to be followed by two years of probation. The sentence in the 76-4822 case had not been terminated and the case was still open. By stipulation the evidence in the subject case was adopted in the Probation Violation case and the probation was revoked by this Court on May 25, 1978.

(b) At the time of the crime for which this defendant was sentenced he had previously been convicted of three felonies involving the use or threat of violence to some person;

1. Eleventh Judicial Circuit No. Cr. 2237, Assault with Intent to Commit Rape, October 15, 1965, Judge Harold R. Vann, sentence ten years.
2. Eleventh Judicial Circuit Case No. 69-9963, Robbery, February 22, 1971, Judge Alto Adams.
3. Eleventh Judicial Circuit Case No. 76-4822, resisting officer with violence to his person. Eighteen months State Prison, followed by two years probation. September 16, 1976, Judge Alan R. Schwartz.

(c) The defendant, in committing the crime for which he is sentenced, knowingly created a great risk of death to many persons. For a number of hours the defendant and others held at bay, tied and otherwise incapacitated any one who entered the premises following this defendant’s original entry thereto. The original resident, Miss Wooden, was first tied and about two hours later Mr. Stocker and his five friends arrived. They were confronted and under threat of injury, tied and silenced. Thereafter Miss Wooden’s boy friend, Michael Miller, arrived and was tied and placed with the others. We can only speculate as to what would have happened had additional people such as friends or delivery personnel shown up during the course of this crime. Suffice it to say that all eight people were shot and six of these people died as a result of the gunshot wounds inflicted upon them during the perpetration of the enumerated crime of robbery. The evidence indicated that the sole person to initially be robbed was victim Stocker, but because a young lady and her boy friend also resided in the home (unknown to the defendant and his accomplices when the crime was planned), and that Stocker arrived with five friends automatically placed all of them in a position of being exterminated.

(e)(g) The crime for which this defendant has been sentenced was committed for the purpose of avoiding or preventing a lawful arrest and to disrupt or hinder the lawful exercise of law enforcement. The evidence is myriad as to the effort put forth by the participants in this crime in making certain that their crime of robbery would go undetected. These include but are not necessarily limited to factors such as the avoidance of touching areas where the prints might be left; the use of barrels of weapons they carried to turn lights on or off; the application of grease in the car used, the use of masks; the hiding of one of the automobiles involved and the placing in the junk yard the other; the disposal of guns that were used by throwing them into the Miami River and the ultimate attempt to annihilate all possible witnesses to the robbery. It’s obvious that great care was used by the participants while inside the residence or the vehicles in that only one out of more than five hundred fingerprints could be directly attributed to any of the four participants in this crime.

(d)(f) The crime for which the defendant has been sentenced was committed while engaged in a robbery for pecuniary gain. A substantial amount of money, jewelry and other personal effects were taken from the various victims or in hiding places or drawers in the residence and the money was divided equally among the four perpetrators of the robbery at a meeting following the escape from the residence of the crime.

(h) This crime was especially heinous, atrocious and cruel. The defendant first approached the house posing as a Florida Power and Light employee and went through Mr. Stocker’s residence, in the company of Miss Wooden, presumably checking on electrical outlets. Finally he pressed a gun to the back of Miss Wooden’s neck and told her to remain quiet while he went about his other business. He tied her hands behind her back and then on numerous occasions had her moving in and around the house. He subsequently put a stocking around her eyes and then a towel and forced her to lie down on her bed. He thn [sic.] got her up and took her blindfold off and made her respond to the front door where a visitor had approached. While she was talking to this visitor with her hands tied behind her back, a pistol was pointed at her a short distance away where the defendant was hiding behind the front door.

She was then taken back to her room blindfolded and told to lay across the bed. Other men came into the house and she was told that these men would be good to her. She heard voices moving around the house and was asked for gloves. One of the participants said her hands were tied too loosely and he re-tied her hands and her blindfold. She was tied so tightly that it affected her breathing because she was an asthmatic and was required to take medication to aid her. As she was laying across the bed she could hear people ransacking the house and was asked to disclose the location of her purse so that it could also be examined. She was unblindfolded and told to determine the ownership of a car which was parked outside and at that time she noticed that all the participants in this crime were carrying weapons. Following her identification of the Cadillac she was returned to her room, blindfolded and put back on the bed. Almost two hours passed until Stock-er arrived. She was told to be quiet and she said, “Don’t hurt me, I’ll be good”. She was crying and thought of dying.

She was blindfolded again and returned to the living room where six men were laying on the floor. Two of them were in the dining area and four in the living room. Their hands were tied behind their back and the defendant and his co-conspirators were going through their pockets and asking for money and drugs. She watched as a shotgun was brought out of Mr. Stocker’s room and one of the men put the shotgun to her head and said, “Give us something or we will kill her”. All seven people were then moved into the northeast bedroom where all of them were pleading for their lives. One of the victims was heard to have said that he had been brought up with one of the defendants and shouldn’t be hurt.

She next heard Michael Miller scream as he came into the house. She yelled to them not to hurt him. Mr. Miller was then tied, searched and brought into the bedroom. Ferguson then took Miss Wooden and Mr. Miller back to their bedroom with Ferguson again helping her as she moved along. Ferguson told her not to worry that everything was going to be alright and she and Miller were instructed to kneel down next to the bed with their bodies across the bed. She then heard some sounds that sounded like shots from the other part of the house and saw a pillow coming towards her head. She was then shot and then watched Michael get shot. She then heard Ferguson run out of the room. She screamed hysterically for Michael, then got up and got her blindfold off and saw the dead men in the other room. She was able to open the front door and ran screaming to the next door neighbor’s house.

While the six men remained in Stocker’s bedroom Stocker was heard to cry to God for His help in stopping what he thought was going to take place. Stocker was told “Shut up nigger” (all participants and victims of this crime were of the black race) and his prayers were further interrupted by a shotgun blast to the back of his head. The other gentlemen in the room were then methodically shot by either a shotgun or a pistol into the backs of their heads. Miraculously one of this group survived as did Miss Wooden. The method of execution used by this defendant and his co-conspirators reflects not only an absolute lack of concern for human life or dignity but also that of a consciousless or pitiless individual.

A careful consideration of all matters presented to the Court compels the following Findings of Fact relating to mitigating circumstances as specified by Section 921.-141(6) Florida Statutes:

(a) The defendant does have a significant history of prior criminal activity, (see aggravating circumstances Supra)

(b)(f) The defendant was not under the influence of any extreme mental or emotional disturbance and his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was not substantially impaired.

At the time of his arraignment on the instant charges his counsel entered a plea of “not guilty by reason of insanity”. The Court appointed three disinterested psychiatrists; Drs. Harry Graff, Charles Mutter and Albert Jaslow. Subsequent thereto Dr. Norman Reichenberg was also appointed to do psychological testings.

This defendant has a history of mental disorder and has previously been committed to The State Hospital. He was found competent prior to his sentencing in 1976, thereafter concluded this period of time in The State Prison System and was placed on probation. Following the filing of the reports by the referenced physicians and in a pre-trial conference counsel for the defendant, after consultation with his client, indicated that he was not going to present the issue of insanity to this jury. This Court specifically found that the defendant was competent to stand trial, to understand the seriousness of the charges and able to assist his counsel in his defense. There is nothing that would indicate that this defendant did not recognize the criminality of his conduct at the time of the commission of the referenced offenses. The evidence requires a finding that defendant was sane at the time of the commission of the instant offense consistent with the standards of the “M’Naghten Rule”.

This defendant’s conduct throughout the entire course of this crime from planning state through escape is indicative of a[n] individual who had an absolute understanding of the events and consequences thereof.

(c) The victims of this crime were not participants in the defendant’s conduct and did not consent to the crimes involved.

(d) The defendant was a principal participant in the planning and execution of the robbery plans and all actions following the leaving of the scene of the crime which were designed to aid in avoiding detection. His participation constituted a major part of the total criminal activity involved. He was personally responsible for shooting two of the victims, killing one of them.- '

(e)There is nothing in the evidence in this case that would indicate that this defendant was under extreme duress or under the substantial domination of any other person. He was a[n] active participating principal throughout the course of these crimes, gave directions and dictated to some extent directions to be followed by others involved.

(g) There is nothing about the defendant’s age of approximately thirty years which in any way could be considered a mitigating factor in this case.

Upon consideration it was at the time of the sentencing, and is now, during the formulation of the written Order, the inescapable conclusion of the Court that sufficient aggravating circumstances exist and that no mitigating circumstances exist which could possibly outweigh the aggravating circumstances. Accordingly, this Court agrees with the recommendation of the trial jury that the crime involved in this case justifies, warrants and cries out for the imposition of the death penalty.

The only possible mitigating circumstances involved the defendant’s mental state and his ability to appreciate the criminality of his conduct. § 921.14(6)(b) and (f), Florida Statutes (1977). In rejecting these the sentencing judge here, just as in Mines v. State, 390 So.2d 332, 337 (Fla.1980), cert. denied, 447 U.S. 1, 101 S.Ct. 1994, 64 L.Ed.2d 681 (1981), misconceived the standard to be applied in assessing the existence of these mitigating factors. Apparently the judge applied the test for insanity, just as he did in Ferguson v. State, 417 So.2d 631 (1982). The sentence in the latter case was vacated and the case was remanded to the trial judge for sentencing. We must follow the same procedure here.

The trial court’s finding in aggravation that defendant knowingly created a great risk of death to many persons was improper. In White v. State, 403 So.2d 331 (March 20, 1981), we held that said aggravating circumstance was inapplicable with regard to defendant’s accomplice, Beauford White, and for the reasons expressed therein we hold likewise in the case sub judice.

Also improper was the finding, as an aggravating circumstance, that defendant was under a sentence of imprisonment at the time that he committed the crimes for which he was sentenced. At the time of the murders, defendant was serving a two-year period of probation which followed an eighteen-month period of incarceration. He was not confined in prison at the time, nor was he supposed to be. In Peek v. State, 395 So.2d 492 (Fla.1981), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 384 (1981), we held that:

Persons who are under an order of probation and are not at the time of the commission of the capital offense incarcerated or escapees from incarceration do not fall within the phrase “person under sentence of imprisonment” as set forth in section 921.141(5)(a).

Id. at 499. Thus defendant was not a “person under sentence of imprisonment.”

Our negation of two of the aggravating circumstances found by the trial court would not change the result of this case in the absence of mitigating circumstances for there remain four valid aggravating circumstances. In such cases, a reversal of the death sentence would not necessarily be required, as any error that occurred in the consideration of the two inapplicable aggravating circumstances was harmless. See Shriner v. State, 386 So.2d 525 (Fla.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 289 (1981); Dob-bert v. State, 375 So.2d 1069 (Fla.1979), cert. denied, 447 U.S. 912,101 S.Ct. 3000, 64 L.Ed.2d 862 (1980); Hargrave v. State, 366 So.2d 1 (Fla.1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979); and Elledge v. State, 346 So.2d 998 (Fla.1977).

The execution-style murders committed by the defendant have often led to an appropriately imposed sentence of death. In Sullivan v. State, 303 So.2d 632 (Fla.1974), the defendant and an accomplice took the victim to a swampy area, intending to kill him. The defendant struck the victim twice with a tire iron, shot him in the back of the head with both barrels of a shotgun, reloaded and shot him again. This Court said, “The facts speak for themselves. This was an execution-type slaying. The sentence of death is appropriate and should be affirmed.” Id. at 638.

In Gibson v. State, 351 So.2d 948 (Fla.1977), cert. denied, 435 U.S. 1004, 98 S.Ct. 1660, 56 L.Ed.2d 93 (1978), the defendant and another man saw two sailors in a bar. They enlisted two women to entice the sailors to a late night rendezvous. The sailors were taken to a dark street and told to get out of the car and hand over their money. As one man got out of the car, offering his money and begging not to be shot, the defendant shot him twice in the head. The other sailor was also shot but did not die. Noting the absence of mitigating circumstances, this Court affirmed the sentence.

In another case the two victims had been shot in the head at close range. Again, in the absence of mitigating circumstances the death sentence was affirmed. Jackson v. State, 359 So.2d 1190 (Fla.1978).

In our review capacity we must be able to ascertain whether the trial judge properly considered and weighed the above mitigating factors. Their existence would not as a matter of law, invalidate a death sentence, for a trial judge in exercising a reasoned judgment could find that a death sentence is appropriate. It is improper for us, in our review capacity, to make such a judgment.

The judgment of conviction is affirmed. The death sentence is vacated and the cause is remanded to the trial court for the purpose of determining an appropriate sentence. An additional sentence advisory verdict by a jury is not required.

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

SUNDBERG, J., concurs in result only.

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

BOYD, Justice,

concurring in part and dissenting in part.

I concur in the affirmance of appellant’s convictions which include six counts of premeditated murder. I dissent to the court’s judgment vacating the sentences of death. The trial court’s findings of aggravating circumstances and the absence of mitigating circumstances were supported by the evidence and in accordance with the law. We should affirm the sentences of death.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Petitioner, v. Lee MANDEL, Respondent.
    No. 59612.
    Supreme Court of Florida.
    July 15, 1982.
    Ronald R. Richmond, Chairman, Standing Committee on Unauthorized Practice of Law, New Port Richey, H. Glenn Boggs, Asst. Staff Counsel, UPL, Tallahassee, and Frank H. Fee, III, Fort Pierce, for petitioner.
    Robert C. Hackney of the Law Offices of Robert C. Hackney, Fort Pierce, for respondent.
   PER CURIAM.

This matter is before the Court on petition against the unauthorized practice of law pursuant to article XVI of the Integration Rule of The Florida Bar. We have jurisdiction. Art. V, § 15, Fla.Const.

A petition against the unauthorized practice of law was filed in this Court on August 20, 1980, alleging, inter alia :

VI
Respondent, at all times material herein, was not and is not a member of The Florida Bar and was not and is not therefore licensed to engage in the practice of law in the State of Florida.
VII
Respondent has engaged in the unauthorized practice of law in Florida by the following act:
On or about April 25, 1978, respondent appeared in County Court in and for St. Lucie County before County Judge E. P. DeFriest in a hearing of a case styled State of Florida v. John Andrew Buchko, case no. 78-413-mm as counsel for the defendant. During this hearing, respondent made at least one objection, conducted cross-examination of witnesses, and made a final argument.
VIII
The aforementioned activities of respondent violate the letter and spirit of this Court’s decision in The Florida Bar v. Burns, 287 So.2d 297 (Fla.1973); The Florida Bar v. Joyce, 299 So.2d 27 (Fla. 1974); and The Florida Bar v. Scussel, 240 So.2d 153 (Fla.1970). In addition, grievous injuries may be done to persons employing respondent and relying on his advice, representation, and assurances.

This Court ordered the respondent to show cause to a referee why he should not be held in contempt of this Court for the unauthorized practice of law.

After a hearing, the referee found the following:

Findings of Fact
1. The respondent Lee Mandel is not now nor has he ever been a member of The Florida Bar.
2. One John Andrew Buchko was a defendant in the County Court of St. Lucie County, Florida charged with the crime of disorderly conduct.
3. On April 25, 1978, the respondent Lee Mandel appeared as counsel and represented the defendant Buchko in the County Court proceeding before the Honorable E. P. DeFriest, Jr., County Judge in and for St. Lucie County, Florida.
4. As part of the County Court proceeding, Lee Mandel, the respondent herein, held himself out as attorney of record in the case, and the records of the County Court show that he was listed as attorney of record for the defendant Buchko.
5. The respondent Mandel identified himself as counsel for the defendant, stated at least one objection, conducted cross-examination of witnesses and gave a final argument in the case.

The referee recommended that the respondent be permanently enjoined from engaging in the unauthorized practice of law within the State of Florida; that the respondent not be punished for indirect contempt of the Supreme Court of Florida; and that the respondent be ordered to pay the costs of this proceeding in the amount of $77.50.

Having carefully reviewed this matter we approve the recommendations of the referee.

Accordingly, respondent Lee Mandel is permanently enjoined from engaging in the unauthorized practice of law in the State of Florida. Costs of this proceeding in the amount of $77.50 are assessed against the respondent.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Kevin LEHMAN, Respondent.
    No. 59736.
    Supreme Court of Florida.
    July 15, 1982.
    Stanley A. Spring, Staff Counsel, Tallahassee and Harris K. Solomon, Bar Counsel, Fort Lauderdale, for complainant.
    No appearance for respondent.
   PER CURIAM.

This disciplinary proceeding against attorney Kevin Lehman is before the Court on the complaint of the Florida Bar and the report of a referee. Neither party has petitioned for review of the referee’s report.

The report of the referee contains the following findings and recommendation:

II. Findings of Fact as to Each Item of Misconduct of which Respondent is charged: After considering all the pleadings and evidence before me, I find:
1) Kevin Lehman is and at all times hereinafter mentioned was a member of The Florida Bar, subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.

COUNT I

2) In or about January 1979, Respondent abandoned his law practice and left approximately 450 pending client matters in his office.
3) On or about April 9,1979, upon petition of The Florida Bar, the Honorable Vaughn Rudnick appointed Sidney B. Alexander, a member of The Florida Bar, as inventory attorney for Mr. Lehman.
4) Mr. Alexander’s unrefuted testimony establishes that:
a. Mr. Lehman advertised that he would prepare a will for $25.00 and undertook to prepare such wills for numerous clients. At the time that Mr. Lehman abandoned his practice, numerous people had paid Mr. Lehman to prepare their wills and he had failed to prepare same.
b. Mr. Lehman was retained by numerous clients to provide them with title insurance on their residences. Mr. Lehman provided title policies through South Florida Guaranty Company. Mr. Lehman received money from his clients to prepare the title policies and provided title policies to his clients. However, Mr. Lehman failed to forward the money he.received to prepare the title policies to the title insurance company.
c.Both Mr. Lehman’s office account and his trust account at the Central Bank of Palm Beach were overdrawn on numerous occasions because Mr. Lehman wrote checks while there were insufficient funds on deposit to satisfy the checks. Mr. Lehman’s trust account has continually been overdrawn since January 2, 1979 until the present time. Numerous checks which were drawn on that account by Mr. Lehman were returned to the payee because there were insufficient funds on deposit to satisfy those checks.
COUNT II
5) In March 1978, Mrs. Nancy Diamond contacted Mr. Lehman in regard to representing her in a dispute which she was having with Doctors Hospital in Lake Worth, Florida. Mrs. Diamond had brought her son to Doctors Hospital for what she believed to be appendicitis. Her son was released from the hospital without treatment. During the course of that evening, Mrs. Diamond’s son’s appendicitis ruptured and he was admitted to Doctors Hospital. An appendectomy was performed and five days thereafter her son’s condition deteriorated and a second operation was performed. Mrs. Diamond’s son remained in the hospital for two more weeks and was subsequently released. Thereafter, Mrs. Diamond received a bill from Doctors Hospital for $6,000.00. Mrs. Diamond retained Mr. Lehman to get the hospital to reduce the amount of their bill to Mrs. Diamond and to file a malpractice action on behalf of Mrs. Diamond and her son.
6) Between August 1978 and January 1979, Mrs. Diamond and her husband made approximately fifteen (15) telephone calls to Mr. Lehman’s office and requested that Mr. Lehman return their phone call on each occasion. Mr. Lehman never returned those telephone calls. Between August 1978 and January 1979, Mr. Lehman did not correspond with Mr. and Mrs. Diamond regarding their cause of action.
7) Mrs. Diamond had delivered all the bills, the records and letters regarding the debt to Doctors Hospital and the alleged malpractice action. The inventory attorney was unable to locate all the items Mrs. Diamond had given to Mr. Lehman and, as of this date, Mrs. Diamond has not recovered all the bills, records and letters that she delivered to Mr. Lehman regarding her cause of action. Mrs. Diamond’s cause of action for malpractice accrued prior to 1978 and as of the date that she was notified that Mr. Lehman had disappeared in 1980, the statute of limitations on her cause of action for medical malpractice had expired. At this time, a collection agency is threatening to institute legal proceedings against Mrs. Diamond if she does not pay the balance of $3,800 for medical treatment her son received at Doctors Hospital.
COUNT III
8) In or about November 1978, Mr. Lehman received $75.00 from Ira Runyon to institute a dissolution of marriage proceeding. Mr. Lehman failed to take any action to institute the proceeding. Mr. Runyon, after discovering that Mr. Lehman failed to perform any work, retained another attorney for an additional cost of $142.50 to complete the dissolution of his marriage. Mr. Lehman has never refunded any money to Mr. Runyon.
COUNT IV
9) In July, 1977, Mr. Douglas Bestwick retained Mr. Lehman to institute a breach of contract action against Mr. Carl Crocker. Mr. Bestwick had given Mr. Crocker $5,200 as a deposit for the sale of Crocker’s Texaco Service, 1301 Hypoluxo Road, Lantana, Florida. The $5,200 was to be returned in full if the closing of the sale did not occur on or before June 5, 1977. The closing did not take place as required by the terms of the contract, and Mr. Bestwick sought to have Mr. Lehman institute an action against Mr. Crocker to recover the $5,200 deposit. Mr. Lehman failed to file suit on behalf of Mr. Bestwick and Mr. Bestwick never recovered any of his money from Mr. Crocker.
III. Recommendation as to Whether or not the Respondent should be found Guilty:
COUNT I
I recommend that Respondent be found guilty of violating Florida Bar Code of Professional Responsibility, D. R. 1-102(A)(6), 6-101(A)(3), 7-101(A)(2) and (3), 9-102(B) and Florida Bar Integration Rule, article XI, Rule 11.02(4).
COUNT II
I recommend that Respondent be found guilty of violating Florida Bar Code of Professional Responsibility, D. R. 6-101(A)(3) and 7-101(A)(2) and (3).
COUNT III
I recommend that Respondent be found guilty of violating Florida Bar Code of Professional Responsibility, D. R. 1— 102(A)(6), 6-101(A)(3), 7-101(A)(l), (2) and (3), and 9-102(B) and Florida Bar Integration Rule, article XI, rule 11.02(4).
COUNT IV
I recommend that Respondent be found guilty of violating Florida Bar Code of Professional Responsibility, D. R. 6— 101(A)(3) and 7-101(A)(l), (2) and (3).
IV. Recommendation as to Disciplinary Measures to be Applied:
Based on the above findings of fact, I recommend that Respondent be disbarred from The Florida Bar.

Since neither party seeks review of the referee’s report, we treat the factual findings as conclusive and adopt the recommended discipline of disbarment. Fla.Bar Integr.Rule, art. XI, Rule 11.09(3)(f). Respondent Kevin Lehman is disbarred effective this date. Costs are assessed against respondent in the amount of $2,007.87.

It is so ordered.

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


author: BOYD, Justice.

text:
    LIFE INSURANCE COMPANY OF NORTH AMERICA, Petitioner, v. Margaret E. DEL AGUILA, et al., Respondents.
    No. 59933.
    Supreme Court of Florida.
    July 15, 1982.
    Marjorie D. Gadarian of Jones & Foster, West Palm Beach, for petitioner.
    J. Daniel Ennis of Ennis & Northcutt, Indian Harbour Beach, and Robert T. Burger, Satellite Beach, for respondents.
   BOYD, Justice.

This cause is before the Court on petition for review of the decision in Life Insurance Co. of North America v. del Aguila, 389 So.2d 303 (Fla. 5th DCA 1980). The decision to be reviewed conflicts with the recent case of Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

Margaret E. del Aguila brought this action against four defendants based on fraud. The defendants were Knoll Associates, Inc., an insurance agency; Robert B. Knoll, its principal officer; Walter W. Morris, Jr., an employee of the agency; and Life Insurance Company of North America.

Knoll Associates, Inc., and Robert B. Knoll were general agents for Life Insur-anee Company of North America, and were authorized to sell annuity contracts for the company. Walter W. Morris, Jr., as agent for Knoll Associates, approached Mrs. del Aguila to discuss investing the proceeds from a policy of insurance on the life of her then recently deceased husband. Morris suggested that she invest the funds through his agency in an annuity contract with Life Insurance Company of North America. She entrusted the entire fund of $50,000 to Knoll Associates.

Knoll and Morris placed $15,000 of Mrs. del Aguila’s money in a mutual fund but retained the other $35,000. Then they told her that in order to purchase an annuity from Life Insurance Company of North America, she would have to allow the agency to remit the funds to the Company. So she allowed the agency to hold the $35,000 and to pay for the annuity contract in monthly installments of $500.00. Knoll Associates made two monthly payments and converted the remaining $34,000 to its own use.

In response to specific interrogatories the jury found that Knoll and Morris made fraudulent representations to Mrs. del Aguila and thereby caused her monetary damages; that Knoll and Morris were acting within their authority as agents of Knoll Associates, Inc.; and that both men and the agency wére acting within their real or apparent authority as agents of Life Insurance Company of North America when they obtained the money from Mrs. del Aguila.

The jury found actual damages of $34,000 and assessed punitive damages in varying amounts against the four defendants. The verdict imposed $65,000 in punitive damages on Life Insurance Company of North America. Life Insurance Company of North America appealed the judgment against it both as to actual damages and punitive damages. The district court of appeal affirmed both portions of the judgment.

Petitioner argues that the trial court’s instructions to the jury on the subject of agency were erroneous and that therefore the jury’s finding of vicarious liability for the fraud of the other defendants should be reversed. We find this point to be without merit.

Taken as a whole, the instructions were sufficient. Therefore there was no reversible error. Grimm v. Prudence Mutual Casualty Co., 243 So.2d 140 (Fla.1971). Even if one of the instructions would have been confusing standing alone, the error if any was harmless since under the evidence a finding of liability was proper. Stearns & Culver Lumber Co. v. Cawthon, 62 Fla. 370, 56 So. 555 (1911). A principal is liable for the tortious conduct of his agent, even though not authorized, if the agent was acting within the scope of his employment or his apparent authority. T. G. Bush Grocery Co. v. Conely, 61 Fla. 131, 55 So. 867 (1911); Camp v. Hall, 39 Fla. 535, 22 So. 792 (1897); Restatement (Second) of Agency §§ 216, 219 (1957).

Second, petitioner argues that the award of punitive damages was improper and should be reversed. Specifically, petitioner contends that the trial court erred in submitting the issue of punitive damages to the jury because there was insufficient proof that the insurance company knew or should have known that its local agents were engaging in a course of conduct likely to harm the plaintiff. We agree.

The district court framed the issue as follows:

We are squarely presented with the question of whether a principal can be vicariously liable in punitive damages under respondeat superior for torts of an agent or employee, when the principal neither authorized nor ratified the tort in the absence of any proof of negligent hiring or of some other negligent act directly attributable to the employer.

389 So.2d at 305. The district court then held that in these circumstances punitive damages were properly assessed against Life Insurance Company of North America under the doctrine of respondeat superior.

In Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981), which was decided after the district court’s decision in the instant case, we held that in order for an employer to be held vicariously liable in punitive damages for the tort of an employee under the doctrine of respondeat superi- or, there must be proof of some fault on the part of the principal. In view of our decision in Mercury Motors, it is clear that the district court, insofar as it held punitive damages recoverable against Life Insurance Company of North America without regard to proof of fault, was in error.

There was in this case an allegation that Life Insurance Company of North America knew or should have known that its agents’ dealings with Mrs. del Aguila were irregular, but we find, as did the district court, that there was insufficient proof of such actual or constructive knowledge.

Accordingly, the decision of the district court of appeal is approved in part and quashed in part. The court’s affirmance of the judgment for actual damages is approved, but its affirmance of the judgment for punitive damages is quashed with directions to enter judgment for petitioner.

It is so ordered.

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

SUNDBERG, J., concurs in result only.


author: ADKINS, Justice.

text:
    Ophelia Johnson CLEVELAND, Petitioner, v. STATE of Florida, Respondent.
    No. 60178.
    Supreme Court of Florida.
    July 15, 1982.
    Alan H. Schreiber, Public Defender and Steven Michaelson, Asst. Public Defender, Seventeenth Judicial Circuit, Fort Lauder-dale, for petitioner.
    Michael J. Satz, State Atty. and Paul H. Zacks, Asst. State Atty., Seventeenth Judicial Circuit, Fort Lauderdale, for respondent.
    James G. Mahorner, Tallahassee, for Ila Patel, amicus curiae.
   ADKINS, Justice.

We have for review a decision of the District Court of Appeal, Fourth District, (State v. Cleveland, 390 So.2d 364 (Fla. 4th DCA 1980)), which expressly and directly conflicts with a decision of the District Court of Appeal, Second District, (State v. Eash, 367 So.2d 661 (Fla. 2d DCA)), cert. denied, 374 So.2d 101 (Fla.1979). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

Petitioner (hereinafter defendant), was arrested and charged with welfare fraud in an amount greater than $200, a third-degree felony. § 409.325, Fla.Stat. (Supp. 1980). Defendant then sought admission into the pretrial intervention program pursuant to section 944.025, Florida Statutes (1979). Although defendant satisfied all statutory requirements for admission into the program, the Department of Corrections and the state attorney refused to consider defendant’s application. This department’s refusal resulted from a rule, promulgated by the Department of Offender Rehabilitation, which denied persons charged with welfare fraud or other enumerated third-degree felonies admission to the program. The state attorney refused to consent because of the serious and widespread nature of welfare fraud and the impact it has on the general taxpayer and public at large. State v. Cleveland.

Upon order of the trial court, the Department of Corrections processed defendant’s application but found her ineligible due to the state attorney’s refusal to consent. The trial court then ordered the Department of Corrections to accept defendant into the program stating that the withholding of consent by the state attorney was subjective and contrary to the legislative intent of the pretrial intervention program.

The Fourth District Court of Appeal quashed the trial court order. This Court accepted the petition for review to consider whether a trial court may review a refusal by the state attorney to consent to a qualified offender’s admission to pretrial intervention. The answer to this question primarily depends on whether the pretrial diversion decision is a judicial or prosecutorial function.

The state attorney has complete discretion in making the decision to charge and prosecute. In State v. Jogan, 388 So.2d 322 (Fla. 3d DCA 1980), for example, the trial judge dismissed the information against the defendant conditioned on the defendant’s enlistment in the military. The district court reversed and remanded holding that the decision to prosecute or nolle prosequi is a pretrial posture vested solely in the state attorney’s discretion. The court felt that the state attorney alone had the right to nolle prosequi a defendant conditioned upon his entry into the military. The trial court has great latitude in post-trial proceedings and thus forms the necessary check and balance.

The pretrial diversion is essentially a conditional decision not to prosecute similar to the nolle prosequi situation postulated by Jogan. It is a pretrial decision and does not divest the state attorney of the right to institute proceedings if the conditions are not met. The pretrial intervention program is merely an alternative to prosecution and should remain in the prosecutor’s discretion. See Commonwealth v. Kindness, 247 Pa.Super 99, 371 A.2d 1346 (1977). Two factors in the statutory scheme which create the pretrial intervention program support the determination that each party concerned has total discretion to refuse to consent. First, section 944.025(2) requires consent of the administrator of the program, victim, judge, and state attorney, but fails to provide for any form of review. In addition, section 944.025(4), Florida Statutes, allows the state attorney to continue prosecution if defendant is not fulfilling his obligations under the program or if the public interest requires. The fact that the state attorney has this discretion to reinstate prosecution is consistent with the view that the pretrial diversion consent by the state attorney is a prosecutorial function.

Finally, defendant’s reliance on comparable programs in other states is misplaced. The California program statutorily provides for trial court review. See People v. Superior Court, 11 Cal.3d 59, 520 P.2d 405, 113 Cal.Rptr. 21 (1974). Other programs were created by court rule and are, therefore, subject to court review of the diversion decision. Florida’s program was statutorily created and does not expressly provide for judicial review.

We hold that the pretrial diversion decision of the state attorney is prosecutorial in nature and, thus, is not subject to judicial review. We approve the decision of the district court and overrule State v. Eash.

It is so ordered.

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


text:
    NATIONAL LAKE DEVELOPMENTS, INC., and Harry Macksey, Petitioners, v. LAKE TIPPECANOE OWNERS ASSOCIATION, INC., Respondent.
    No. 60509.
    Supreme Court of Florida.
    July 15, 1982.
    Daryl J. Brown of Rosin, Abel, Band, Brown & Russell, Sarasota, for petitioners.
    Joseph S. Paglino of the Law Offices of Joseph S. Paglino, Miami, and Ezra J. Re-gen, Sarasota, for respondent.
   BOYD, Justice.

This cause is before the Court on petition for review of the decision of the court below, National Lake Developments, Inc. v. Lake Tippecanoe Owners Association, 395 So.2d 592 (Fla. 2d DCA 1981), on the ground that it conflicts with Kohl v. Bay Colony Club Condominium, Inc., 385 So.2d 1028 (Fla. 4th DCA 1980). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

Lake Tippecanoe is a residential community. The dwellings there are owned in the condominium form of ownership. Lake Tippecanoe Owners Association, Inc., is, as its name suggests, an organization of the owners of the dwelling units in Lake Tippecanoe. The association brought a class action, on behalf of the unit owners, against National Lake Developments, Inc., and three of its directors. The defendant corporation developed the Lake Tippecanoe community and sold the dwelling units in the form of condominiums. The defendant corporation also founded the owners association; three of the directors of National Lake Developments, Inc., served as the original officers of the unit owners association.

In the lawsuit, the association sought re-cission or cancellation of a ninety-nine years lease of recreation facilities, compensatory damages, punitive damages, and attorneys’ fees. The defendants filed an answer containing numerous affirmative defenses. One of the affirmative defenses asserted that certain members of the plaintiff class, namely, those who had not originally purchased their condominiums directly from the developer, were improperly included in the plaintiff class and should be dismissed therefrom. The plaintiff association moved to strike the affirmative defenses. The trial court granted the motion as to some of the affirmative defenses, including the one pertaining to the propriety of certain members of the plaintiff class, and the defendants appealed.

On motion of the association, the district court dismissed the appeal insofar as it related to all the affirmative defenses stricken by the trial court except for the one pertaining to the proper members of the plaintiff class. The district court then proceeded to issue an opinion explaining that the trial court’s order striking the affirmative defense pertaining to the composition of the plaintiff class was, like the remainder of the order, not appealable.

The court pointed out that nonfinal orders of trial courts are only appealable if they are included in one of the categories listed in Florida Rule of Appellate Procedure 9.130(a)(3). The court then noted that in Kohl v. Bay Colony Club Condominium, Inc., 385 So.2d 1028 (Fla. 4th DCA 1980), it was held that an order determining the members of a class and holding a class action maintainable was an order determining jurisdiction of the person, and was therefore appealable under Rule 9.130(a)(3). The Kohl court reasoned that, since a judgment in a class action suit is binding on all members of the class, an order determining the proper members of the class is an order determining jurisdiction of the person. The district court in the instant case then explained its disagreement with the Kohl decision. An inquiry into who makes up the proper class of plaintiffs, the court reasoned, is not the same as an inquiry into whether the court has jurisdiction over those plaintiffs. “Jurisdiction of the person,” the court concluded, as those words are used in Rule 9.130, “refers to service of process or the applicability of the long arm statute to nonresidents.” 395 So.2d at 593. Finally, the court said, “The right to challenge jurisdiction has always been reserved to the person over whom the court is asserting jurisdiction.” Id. Therefore, the defendants’ questioning of the propriety of the members constituting the plaintiff class did not raise a question of personal jurisdiction.

We agree with and approve the district court’s decision. The issue is whether an order pertaining to the membership of a plaintiff class in a class action is one which determines jurisdiction of the person. If it is, then it is a nonfinal order reviewable by an appellate court pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(c)(i). If not, then the order is not reviewable until final judgment has been rendered. See Fla. R.App.P. 9.110(h). Thus the question is not whether such an order is reviewable but when.

Petitioners argue that they should be allowed to appeal a nonfinal order pertaining to the composition of the plaintiff class so that they may avoid the unnecessary burden and expense of defending an action against a plaintiff class that may include improper members. It is true that avoidance of unnecessary inconvenience and expense, for litigants and for courts, is one of the reasons for allowing certain interlocutory appeals, such as appeals of orders that determine personal jurisdiction. However, even though orders pertaining to the proper composition of a plaintiff class bear some resemblance to orders determining jurisdiction of the person, the differences are substantial enough for us to conclude that the former are not included among the latter.

The similarity between an order determining in personam jurisdiction and an order determining composition of a class is that both put persons on notice of litigation that may result in a judgment affecting such persons. In a class action, procedural due process requires that individual notice be given to those class members who can be identified through reasonable effort. Frankel v. City of Miami Beach, 340 So.2d 463 (Fla.1976). When a court allows a suit to be brought as a class action, all the member of the class are bound by the resulting decree even though some may be absent. Tenny v. City of Miami Beach, 152 Fla. 126, 11 So.2d 188 (1942). Thus the designation of a suit as a class action is comparable to an order determining jurisdiction of a person in that both announce to affected persons that they may be bound by any judgment the court might render in the action.

This similarity, however, does not compel the conclusion that an order pertaining to the proper composition of a plaintiff class is an order determining jurisdiction of the person. In this limited context, we agree with the reasoning of the district court that the defendants’ questioning of the composition of the plaintiff class did not raise a question of personal jurisdiction:

As used in rule 9.130, the term “jurisdiction of the person” refers to service of process or the applicability of the long arm statute to nonresidents. American Health Association v. Helprin, 357 So.2d 204 (Fla. 4th DCA 1978). The defendants in the present case have not raised such matters. Indeed, it would not even be their place to do so on behalf of the plaintiffs. The right to challenge jurisdiction has always been reserved to the person over whom the court is asserting jurisdiction.

395 So.2d at 593.

Carrying that reasoning forward, it can be said that a class action lawsuit is brought for the benefit of its members, not for the purpose of imposing liability on them. Although a person over whom a court has no jurisdiction cannot confer it by consent, it is the filing of the class-action complaint, not any judicial order, that invokes and determines the court’s personal jurisdiction over the plaintiff class. Unlike a defendant who cannot unilaterally withdraw from the jurisdiction of the court, the members of the plaintiff class may choose not to be members and thus not to be bound by the judgment. See The Florida Bar, In re Rule 1.220(b), Florida Rules of Civil Procedure, 353 So.2d 95 (Fla.1977). Thus, interlocutory orders relating to the right of plaintiffs to maintain an action generally do not determine the court’s jurisdiction over the plaintiffs. Dyer v. Battle, 168 So.2d 175 (Fla. 2d DCA 1964).

We hold that a nonfinal order pertaining to the composition of a plaintiff class is not an order determining jurisdiction of the person and is therefore not reviewable under Florida Rule of Appellate Procedure 9.130(a)(3)(c)(i). The decision of the district court of appeal is approved.

It is so ordered.

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

ADKINS, J., dissents.

       Rule 9.130(a)(3) provides:
      (3) Review of non-final orders of lower tribunals is limited to those which:
      (A) concern venue;
      (B) grant, continue, modify, deny or dissolve injunctions, or refuse to modify or dissolve injunctions;
      (C) determine; (i) jurisdiction of the person;
      (ii) right to immediate possession of property;
      (iii) right to immediate monetary relief or child custody in domestic relations matters; or
      (iv) the issue of liability in favor of a party seeking affirmative relief.