author: BOYD, Justice.

text:
    Warren Mitchell BELL, Petitioner, v. STATE of Florida, Respondent.
    No. 53440.
    Supreme Court of Florida.
    Jan. 8, 1981.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, Miami, for petitioner.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., Miami, for respondent.
   BOYD, Justice.

This cause is before the Court on petition for certiorari to review a decision of the district court of appeal, Bell v. State, 354 So.2d 1266 (Fla.3d DCA 1978). The district court certified that its decision passed upon a question of great public interest. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

The petitioner was convicted of two counts of robbery and on appeal contended that the trial court had erred in refusing to instruct the jury on specific intent as an element of the crime of robbery. The district court held that there was no error in so failing to instruct, since the legislature, by omitting the word “felonious” from the definition of robbery, expanded the definition and eliminated the requirement of a specific intent to deprive the owner of the robbery taken.

The court certified the question, “Whether specific intent (i. e., the intent to permanently deprive the owner of property) is still a requisite element of the crime of robbery as now defined by Section 812.13, Florida Statutes (1975).”

The common law elements of the crime of robbery are a taking, the use of actual or constructive force, the absence of consent on the part of the victim, and the intent to deprive the owner of the property. Williams v. Mayo, 126 Fla. 871, 172 So. 86 (1937); Bryan v. Landis ex rel. Reeve, 106 Fla. 19,142 So. 650 (1932). The elements of the crime as statutorily defined have traditionally been held to include specific intent, i. e., the intent to steal. Montsdoca v. State, 84 Fla. 82, 93 So. 157 (1922); Stevens v. State, 265 So.2d 540 (Fla.2d DCA 1972); Bailey v. State, 199 So.2d 726 (Fla. 1st DCA 1967).

In reaching its conclusion, the district court said, “The law is well established that it is within the power of the legislature to dispense with the element of intent and punish particular acts without regard to the mental attitude of the accused.” For this proposition the court cited Ex parte Stoddard, 160 Fla. 188, 34 So.2d 92 (1948) and Coleman v. State ex rel. Jackson, 140 Fla. 772, 193 So. 84 (1939). Both cases dealt with statutory alcoholic beverage law offenses. The court below did not discuss the distinction between such mala prohibita crimes and the common law crimes, sometimes called “infamous” or mala in se.

It is not necessary for us to reach the question of whether the legislature has the power to dispense with specific intent in defining the crime of robbery. We do not believe that the legislature has demonstrated a clear purpose to do so.

In State v. Allen, 362 So.2d 10 (Fla. 1978), this Court considered whether the omission of the word “unlawful” from Florida’s theft statute showed a legislative purpose to eliminate specific criminal intent as an element of the offense. Pointing out that larceny had traditionally been held to require specific intent despite the absence of an express statutory directive, we held that no such legislative intent was indicated. We reach the same conclusion here.

We hold that specific intent is still a requisite element of the crime of robbery and answer the certified question in the affirmative. The decision of the district court to the contrary is quashed.

Upon respondent’s motion for rehearing, we now also address the district court’s decision reversing the conviction on the ground that the trial court committed reversible error in refusing to instruct the jury on the lesser included offense of larceny. Bell v. State, 354 So.2d at 1267. Our review power is not limited to the certified question only. Zirin v. Charles Pfizer & Co., 128 So.2d 594 (Fla. 1961).

The district court, while rejecting petitioner’s argument on specific intent which we here sustain, reversed and remanded for a new trial on another point. That other issue was whether it was reversible error for the trial court to refuse to instruct the jury on the lesser included offense of larceny. The opinion of the district court reads:

The State confesses error because the information filed in this case specifically states “said property being the subject of larceny” and, therefore, under the holdings in Lomax v. State, 345 So.2d 719 (Fla. 1977) and Abreau v. State, 347 So.2d 819 (Fla.3d DCA 1977), the refusal to instruct on the lesser included offense of larceny constitutes reversible error. Accordingly, the convictions are reversed and the cause remanded for a new trial.

Bell v. State, 354 So.2d at 1267.

The district court made its ruling without the benefit of this Court’s decision in State v. Abreau, 363 So.2d 1063 (Fla.1978). The determination of whether the refusal to instruct on larceny was reversible error would depend upon an application of that decision to the facts of what transpired in the trial court. Because we hold that a new trial is required due to the trial court’s ruling on the question of specific intent, that determination need not be made. We find no fault with the district court’s holding that the refusal to instruct on larceny was error; we simply point out that it was not necessarily reversible error. We disapprove the opinion of the district court to the extent of its inconsistency with State v. Abreau, 363 So.2d 1063 (Fla.1978).

This case is remanded with directions for further trial court proceedings consistent with this opinion.

It is so ordered.

SUNDBERG, C. J., and ADKINS, OVER-TON, ENGLAND and ALDERMAN, JJ., concur.

      . “(1) ‘Robbery’ means the taking of money or other property which may be the subject of larceny from the person or custody of another by force, violence, assault, or putting in fear.”
      § 812.13, Fla.Stat. (1975). The change of language was made by chapter 74-383, section 38, Laws of Florida.

      . § 812.014(1), Fla.Stat. (1977).


source: Caselaw Access Project

author: ADKINS, Justice.

license: Public Domain

text:
    MIAMI DOLPHINS, LTD., Appellant, v. METROPOLITAN DADE COUNTY, etc., Appellee.
    Nos. 56008, 55991.
    Supreme Court of Florida.
    Jan. 29, 1981.
    Rehearing Denied April 1, 1981.

      Dan Paul of Paul & Thomson, Miami, for appellant.
    Robert A. Ginsburg, County Atty., Vicki Jay, Asst. County Atty., and Stuart Simon, Miami, for appellee.
   ADKINS, Justice.

These are consolidated appeals from a final declaratory judgment of the Circuit Court of Dade County specifically passing upon the constitutionality of section 125.-0104, Florida Statutes (1977), and a decision of the Third District Court of Appeal. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. (1972); Fla.R.App.P. 9.030(a)(1)(A) (ii).

On April 4, 1978, the Dade Metropolitan County Commission (hereinafter referred to as the commission), pursuant to section 125.0104, Florida Statutes (1977), known as the “Local Option Tourist Development Act” (hereinafter referred to as the act), created a Tourist Development Council which in turn developed and submitted to the commission a tourist development tax expenditure plan. The plan was adopted by the commission, subject to voter approval at an October 5,1978, election. Following the commission’s actions certain Dade County residents filed an action in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County seeking to enjoin the referendum on the plan, and, on September 8,1978, an injunction was granted. No appeal was taken from the circuit court’s order of September 8.

On October 4, 1978, the commission, by ordinance (hereinafter referred to as the ordinance), adopted another tourist development tax expenditure plan (hereinafter referred to as the plan), similar to the prior one, and placed it on the ballot for a November 7, 1978, election. The plan proposed a “tourist room tax at the rate of two percent on hotel, motel, and similar accommodations rented for a term of six months or less.” The revenues of the tax were to be used, among other things, to “modernize and improve and the present Orange Bowl Football Stadium.”

A group of Dade County citizens, joined by the intervenor/appellant, Miami Dolphins (hereinafter referred to as the appellant), filed an action against Metropolitan Dade County (hereinafter referred to as the county or appellee), for injunctive and declaratory relief seeking to prevent a referendum on the plan. On October 27, 1978, the circuit court issued an order enjoining the referendum and declaring the ballot question invalid because of its failure to meet statutory requirements, its vagueness, and its misleading nature. The circuit court deferred passing on constitutional issues raised by the plaintiffs.

The county appealed the order of October 27 to the Third District Court of Appeal, and on November 2, 1978, that court issued an order, with an opinion to follow, reversing the circuit court. The opinion, filed on December 12, 1978, held that the ballot question as framed did not violate statutory requirements, that it was not misleading, and that “the other contentions raised by the plaintiffs,” i. e., the constitutional objections, were insufficient as a basis for enjoining the holding of a tourist tax referendum. In the meantime, the plan had been placed on the November 7 ballot and been approved by the voters.

Following the Third District Court of Appeal’s ruling on the matter, the circuit court, on December 22, 1978, issued a final declaratory judgment finding the act constitutional both facially and as applied and the ordinance implementing the plan lawful and in compliance with the act.

It is initially contended that no valid tourist development plan was adopted and so the ordinance fails to comply with the requirements of the act. The city of Miami, which owns the Orange Bowl, and the appellant are parties to an agreement governing the latter’s use of the stadium for professional football games. The agreement requires the Dolphins’ consent for any renovation or construction planned for the Orange Bowl. At the time the plan was adopted, no agreement existed between the city, the county, or the Dolphins permitting the county to implement its proposed renovations. Thus, argues appellant, the plan contained in the ordinance was legally defective and invalid. Appellant reasons that since “a condition precedent to the passage of the ordinance and the referendum is the adoption of a valid tourist development tax plan,” the requirements of the act have not been met.

The plan in the case sub judice does, however, comply with the requirements of the act. Section 125.0104(4)(c), Florida Statutes (1977), provides as follows:

The plan shall set forth the anticipated net tourist development tax revenue to be derived by the county for the 24 months following the levy of the tax; the tax district in which the tourist development tax is proposed; and a list, in the order of priority, of the proposed uses of the said tax revenue by specific project or special use as the same are authorized under subsection (5). The plan shall include the approximate cost or expense allocation for each specific project or special use.

The statute does not require that the plan submitted to the board include evidence that each proposal contained therein is feasible and permissible. The plan adopted by the commission complied with each of the requirements enunciated in section 125.-0104(4)(c), Florida Statutes, and the absence of an agreement between the city and the county on the proposed renovation does not effect its validity.

Appellant also argues that the plan improperly attempts to transfer a function from a municipality to a county without complying with article VIII, section 4, of the Florida Constitution, which provides as follows:

Transfer of powers. — By law or by resolution of the governing bodies of each of the governments affected, any function or power of a county, municipality or special district may be transferred to or contracted to be performed by another county, municipality or special district, after approval by vote of the electors of the transferor and approval by vote of the electors of the transferee, or as otherwise provided by law.

According to the appellant, the plans for renovation of the Orange Bowl would require transferring the jurisdiction thereover from the city to the county, would be accomplished without a vote by the electors of the transferor city, and therefore would be unconstitutional. In support of its argument, appellant cites this Court’s decision in Sarasota County v. Town of Longboat Key, 355 So.2d 1197 (Fla.1978).

In Sarasota, four cities challenged an ordinance adopted by the Sarasota County Commission proposing a referendum on certain amendments to the county charter. The amendments, which were to be voted on by the residents of Sarasota County, would transfer the responsibility for five distinct governmental functions (air and water pollution control, parks and recreation, roads and bridges, planning and zoning, and police), from four Sarasota County cities to the county. The trial court granted a permanent injunction prohibiting the referendum on the grounds that the ordinance violated article VIII, section 3, of the Florida Constitution and was unconstitutionally vague. On appeal, this Court held that the ordinance did not violate article VIII, section 3, of the Constitution and was not unconstitutionally vague, but affirmed the trial court’s order on the grounds that the ordinance violated article VIII, section 4, of the Constitution.

A plain reading of Article VIII, Section 4 reflects that a transfer of governmental powers requires distinctive procedures for the initiation of a transfer, that is, “by law or by resolution of the governing bodies of each of the governments affected.” We think it clear from the specificity of the procedure in Section 4 that the “by law” reference connotes the need for a separate legislative act addressed to a specific transfer, in the same manner that two or more resolutions of the affected governments would address a specific transfer.

Id. at 1201 (footnote omitted).

The holding in Sarasota does not, however, compel a similar holding here. In Sarasota, the county sought to transfer certain functions or powers to itself from the cities. Had the ordinance been voted on and approved, the county would have acquired full responsibility for five functions previously exercised by the city. No longer would the cities involved have had any control over those functions, which would have become the responsibility of the county alone. Such is not the case here.

The ordinance here does not seek to transfer jurisdiction over the Orange Bowl, nor even jurisdiction over the maintenance thereof, from the city of Miami to Dade County. It simply allocates certain tax revenues for the renovation of the stadium. The county has indicated that it will offer the money to the city and does not intend to exercise control over the project.

The plan does not require that the city transfer any jurisdiction over the stadium to the county. It is simply being asked to accept a grant of funds to be used for a particular purpose. Clearly the ordinances in Sarasota and here have entirely different purposes and effects, and while that in Sarasota violated article VIII, section 4, with its improper attempt to transfer powers, the one here attempts nothing of the kind. The ruling in Sarasota, therefore, does not apply here.

Further, any questions raised concerning whether the county can give the money to the city to use for renovations rather than insisting upon retaining control itself over the project are laid to rest by the provisions of section 125.0104(5)(a), Florida Statutes. Under that section the county may implement its renovation plans “through service contracts and leases with persons who maintain and operate adequate existing facilities.” The county need not acquire control over the Orange Bowl in order to renovate the stadium; instead, it can contract that the city will handle all of the work. Utilizing the provisions of section 125.-0104(5)(a), Florida Statutes, the county may properly provide the city the money for the renovation, and no powers will have been improperly transferred in violation of article VIII, section 4, of the Florida Constitution.

The second point on appeal is that the county’s referendum election was void, and so the ordinance passed thereby is invalid. On that point, appellant contends that the district court applied the wrong standard of review to the referendum election challenge. The district court, in its opinion reviewing the order enjoining the referendum, addressed the issues raised concerning the validity of the referendum and reversed the trial court, holding that the ballot question was neither in violation of section 125.0104(6)(b), Florida Statutes, nor grossly misleading. Reviewing the trial court’s decision on those grounds and finding the ballot question proper, the district court declined to rule on whether the ordinance and act were invalid. The court’s refusal to review any questions other than those pertaining to the validity of the referendum itself was based on Dulaney v. City of Miami Beach, 96 So.2d 550 (Fla.3d DCA 1957).

In Dulaney, a group of taxpayers sought a decree enjoining the city of Miami Beach from holding a special election on a zoning ordinance passed by the city council. Refusing to enjoin the referendum, the chancellor stated: “I would not attempt to and do not think I properly should determine any legality of ordinance that might result from such an election. The question before the Court is whether or not the election itself should be enjoined, and I do not believe that a showing, a sufficient showing, has been made under this case to enjoin the election.” Id. at 551. The Third District Court of Appeal affirmed the chancellor, observing:

We are presented therefore with the question: Was it error for the chancellor to fail to rule on the validity of the ordinance proposed? We think that the chancellor was correct in his position.
There is a vast difference between the question of the legality of the election and the validity of the ordinance that might result. It would be true that an election held to pass an ordinance which was later held to be invalid would be useless, but it would not follow that such an election was illegal. An election should not be held if the ordinance proposed was clearly invalid on its face. In the instant case such a certainty does not exist. It follows that the validity of the proposed ordinance can best be considered not under an injunction proceeding hastily brought and defended prior to an election already called, but in a suit brought for that purpose by affected property owners.

Id. at 551-552.

It was on the basis of the language above that the district court in this case decline to address any issues raised by the appellant other than those addressing the validity of the referendum ballot question. In light of this Court’s later opinion in Dade County v. Dade County League of Municipalities, 104 So.2d 512 (1958), however, the district court’s reliance on Dulaney was misplaced.

In Dade County, another taxpayer group sought both a declaratory judgment on the constitutionality of a proposed amendment to the county charter and an injunction prohibiting an election thereon. The trial court affirmed the constitutionality of the proposal, but temporarily enjoined the election until this Court could rule on the question. Our opinion in the case, which approved the circuit court’s injunction, stated:

At the outset we dispose of the matter of the propriety of considering the constitutionality of the proposal in advance of an election called to enable the electorate to express its approval or disapproval of the subject proposal. There is adequate precedent for doing so. We are not here confronted with an election in which the people are to have the privilege of expressing their choice as between candidates for public office. If the latter were the situation, the matter for determination would be purely political rather than judicial and the courts would not interfere. We are here dealing with an election involving a matter with reference to which the public interest and public rights may be determined in advance of the ballot, in order to preclude or forestall possible expenditure of substantial sums of public monies in the doing of what could be a vain and useless thing.

Id. at 514 (citations omitted).

In light of our decision in Dade County, the district court here erred in holding that the “other contentions,” i. e., those involving issues other than the validity of the election itself, were insufficient as a basis for enjoining the election. Clearly, the constitutionality of an ordinance such as the one here can be considered and determined before a referendum is held on the ordinance.

What then, of the district court’s failure to consider the other issues raised by the appellants, i. e., the vagueness of the act, equal protection concerns, the validity of the enactment of the ordinance, and the validity of the ordinance itself? It makes no difference in our decision here. Each of the issues which the district court refused to review has been resolved against the appellant elsewhere in this opinion. All were raised as issues on appeal, and we have found in favor of the appellee on each. Although the district court did not review all of the issues which it should have, we have done so.

We now consider the second part of appellant’s second issue on appeal; the contention that the referendum was invalid. Its validity is challenged on two grounds: 1) That the ballot language did not comply with the wording required by section 125.-0104(6)(b), Florida Statutes (1977); and 2) that the ballot language was misleading.

We are in agreement with the district court’s holding that the language employed on the ballot complied with the provisions of the Act. Section 125.0104(6)(b), Florida Statutes (1977), provides:

(b) The governing board of the county levying the tax shall arrange to place a question on the ballot at the next regular or special election to be held within the county, substantially as follows:
.FOR the Tourist Development Tax
.AGAINST the Tourist Development Tax.
The ballot in the instant case, in pertinent part, read:
FOR the Tourist Room Tax
AGAINST the Tourist Room Tax

The ballot contained “substantially” the same wording as the wording suggested in the statute. Furthermore, the ballot contained an explanation of the purposes for which the tourist room tax would be used. Although one might argue that “tourist development tax” is a clearer, more disposi-tive choice of words than “tourist room tax,” and although all other counties which have held referendums under chapter 125 have used the words “tourist development tax,” the statute only requires that the language on the ballot be substantially the same as that in the statute. The language used on the appellee’s ballot met that requirement.

Appellant’s contention that the ballot language was misleading is likewise incorrect. The law simply requires that the ballot give a voter fair notice of the decision which he must make.

“[T]he only requirements in a [sic] election of this kind are that the voter should not be misled and that he have an opportunity to know and be on notice as to the proposition on which he is to east his vote.... All that the Constitution requires or that the law compels or ought to compel is that the voter have notice of that which he must decide.”

Hill v. Milander, 72 So.2d 796, 798 (Fla. 1954).

The ballot here met the above requirements. It contained a brief description of the tax plan,;. e., the rate, the group on whom it would be imposed, the expected revenues, and the planned expenditure of those revenues. While there certainly are many details of the plan not explained on the ballot, we do not require that every aspect of a proposal be explained in the voting booth:

It is a matter of common knowledge that many weeks are consumed, in advance of elections, apprising the electorate of the issues to be determined and that in this day and age of radio, television, newspaper and the many other means of communicating and disseminating information, it is idle to argue that every proposition on a ballot must appear at great and undue length.

Id. at 798. Clearly, the district court was proper in ruling that the ballot in this case was not misleading.

Appellant’s third point on appeal is that the act unconstitutionally delegates legislative authority to the Department of Revenue or is void for vagueness, and in support thereof, cites the decisions of this Court in Department of Business Regulation v. National Manufactured Housing Federation, Inc., 370 So.2d 1132 (Fla.1979); Askew v. Cross Key Waterways, 372 So.2d 913 (Fla.1978); Conner v. Joe Hatton, Inc., 216 So.2d 209 (Fla.1968). As we observed in Conner :

[W]hen the statute is couched in vague and uncertain terms or is so broad in scope that no one can say with certainty, from the terms of the law itself, what would be deemed an infringement of the law, it must be held unconstitutional as attempting to grant to the administrative body the power to say what the law shall be.

Id. at 211.

Appellant contends that section 125.0104, Florida Statutes, fails to provide adequate guidelines or criteria as to who is subject to the tourist tax, even if read in pari materia with chapter 212, Florida Statutes (1977), as appellee contends it should be, and that in administering its provisions, the Department of Revenue will be forced to determine what the law is. Appellant further contends that the act was not intended to be read in pari materia with chapter 212, Florida Statutes, or more particularly section 212.03, Florida Statutes, and that such is demonstrated by the contradictory provisions of the two. We are inclined, however, to adopt the reasoning of the circuit court regarding this argument.

The circuit court found that the act is to be read in pari materia with chapter 212, Florida Statutes, the state transient rentals tax, and that when such is done, the former is “complete and whole in every way with all legal policies of significance set and enacted by the legislature.... ” The trial court found so for three reasons: First, because section 125.0104(2), Florida Statutes, provides that the provisions of chapter 212 are to apply to the administration of taxes levied under the former. Second, because section 125.0104(3)(f) provides that the receipt, accounting for, and remitting of taxes collected pursuant to the act is to be in the time and manner provided by section 212.03, Florida Statutes. And third, because of the rule that when a statute is susceptible to two interpretations, one of which would make it unconstitutional, the court is to adopt the interpretation which will uphold the statutes’ validity. Redwing Carriers, Inc. v. Mason, 177 So.2d 465 (Fla. 1965).

When read in pari materia with chapter 212, Florida Statutes, the act contains all of the elements and establishes the policy necessary to implement the legislature’s goals. Any omissions therein are to be filled by the applicable provisions of the transient rentals tax. In the event of conflict between any provisions of the two, the provisions of the act will govern. While its provisions are used to fill any gaps in the act, the transient rentals tax is simply the base on which the act rests; the act may modify and conflict with the transient rentals tax statute as needed.

That the text of the act does not direct that it be read in pari materia with chapter 212, Florida Statutes, is irrelevant. Statutes may be read in pari materia without such being specifically directed, because “[l]aws should be construed with reference to the constitution and the purpose designed to be accomplished, and in connection with other laws in pari materia, though they contain no reference to each other.” American Bakeries Co. v. Haines City, 131 Fla. 790; 180 So. 524, 528 (Fla.1938). While the legislature may direct that statutes be read in pari materia, the absence of such a directive does not bar construing two statutes in that manner.

Clearly, the act in the case sub judi-ce need not be stricken as an unconstitutional delegation of legislative powers. If read in conjunction with chapter 212, it passes muster for completeness, certainty and reviewability. It is not unconstitutionally vague; this Court’s in pari materia construction makes it complete and remedies any vagueness. Given that an interpretation upholding the constitutionality of the act is available to this Court, it must adopt that construction.

The appellant’s final issue on appeal is that the tourist room tax violates both the privileges and immunities clause and the equal protection clause of the United States Constitution. Citing Austin v. New Hampshire, 420 U.S. 656, 95 S.Ct. 1191, 43 L.Ed.2d 530 (1975), appellant argues that the county is attempting to impose a tax on nonresidents alone on the privilege of renting living space for less than six months.

In Austin, the state of New Hampshire enacted a commuters income tax on nonresidents’ New Hampshire-derived income in excess of $2,000. The law initially imposed a tax as well on the income earned by New Hampshire residents outside the state, but because of various exemptions, no New Hampshire resident was taxed on his out-of-state income. Thus, as the Court observed, “the State taxes only the income of nonresidents working in New Hampshire; it is on the basis of this disparate treatment of residents and nonresidents that appellants challenge New Hampshire’s right to tax their income from employment in that state.” Id. at 659, 95 S.Ct. at 1193 (footnote omitted). The Court held that the commuters income tax violated the privileges and immunities clause of the Constitution, noting “[t]he overwhelming fact, as the State concedes, is that the tax falls exclusively on the income of nonresidents; and it is not offset even approximately by other taxes imposed upon residents alone.” Id. at 665, 95 S.Ct. at 1197. (footnote omitted).

The appellant here contends that the tax in Austin and the tax imposed by Dade County are “indistinguishable,” as the tax here is “to be paid by nonresidents while residents are exempted.” The appellant is, however, incorrect. The tax imposed by Dade County does not distinguish between residents and nonresidents, rather, it is imposed, with certain exceptions, on anyone who rents certain kinds of living space for a term of six months or less. Section 125.-0104(3)(a) provides “[i]t is declared to be the intent of the Legislature that every person who rents, leases, or lets ... for a term of 6 months or less is exercising a privilege which is subject to taxation under this section.” (Emphasis supplied). Likewise, the ordinance provides “There shall be levied and imposed ... a tourist development room tax at a rate of two percent ... of the total rental charged every person who rents, leases or lets for consideration any living quarters ... for a term of six (6) months or less.” (Emphasis supplied). Neither of the above taxes out-of-state renters alone; instead, both provide that the tax is to be imposed on all renters of the covered types of premises. Appellant’s assertions notwithstanding, the nonresident is not treated more onerously than the resident. The ruling in Austin is not applicable here, and the privileges and immunities clause has not been violated.

Nor, proceeding to the second prong of appellant’s constitutional argument, does the act, when read in pari mate-ria with chapter 212, and as administered, violate the equal protection clause. Appellant’s observation that discrimination in tax burden against nonresidents violates the equal protection clause of the federal constitution is without merit, since, as noted above, there is no discrimination against nonresidents in either the act or the ordinance.

Appellant further argues that the act violates the equal protection clause because the various classifications and exemptions created by chapter 212, the act, and the rules adopted by the Department of Revenue are not rationally connected to any legitimate state interest and are arbitrary. That position is incorrect for two reasons. First, if the department’s rules conflict with the act, then it is those rules which should be stricken; not the act. Second, as the circuit court noted in its opinion, “That comprehensive enactment [chapter 212] and its component transient rentals tax have been incorporated in the statute laws of Florida for virtually 30 years and have withstood a number of court tests. With the state transient rentals tax as its base, the statute authorizing counties to enact similar tourist development taxes appears constitutionally firm.” See also Gaulden v. Kirk, 47 So.2d 567 (Fla.1950), and Thompson v. Intercounty Tel. & Tel. Co., 62 So.2d 16 (Fla.1952). Neither the act nor the ordinance violate the Florida or United States Constitutions.

Having considered each of the points on appeal raised by the appellant, and having found that none warrant a reversal of the decisions of the circuit court and the district court, both decisions are hereby affirmed.

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

ENGLAND, J., dissents.

      . Metropolitan Dade County v. Shiver, 365 So.2d 210 (Fla.3d DCA 1978).


author: SUNDBERG, Chief Justice. ADKINS, Justice,

text:
    John E. BIGLER, Jr., Michael H. Cates, Grant W. Bailey, Charles C. Bundschu, Jr., Frank C. Lawson, Hugh J. Morgan, Rogers C. Stevens, Helen Trandel, the Organizers of the Lower Keys State Bank (Proposed), Appellants, v. DEPARTMENT OF BANKING AND FINANCE, and Gerald A. Lewis, Comptroller of Florida as Head of Said Department, Appellees.
    No. 56417.
    Supreme Court of Florida.
    Feb. 19, 1981.

      Larry Levy of Dickinson, Levy & Taylor, Tallahassee, for appellants.
    Eugene J. Celia, Gen. Counsel, and S. Craig Kiser and Karlyn Anne Loucks, Asst. Gen. Counsels, Tallahassee, for appellees.
   SUNDBERG, Chief Justice.

By direct appeal, appellants seek review of a decision of the District Court of Appeal, First District, reported at 368 So.2d 449. Because the district court initially and directly passed upon the constitutionality of a state statute, we have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution (1972). We affirm.

On June 17,1974, appellants submitted to the Department of Banking and Finance an application for authority to organize a corporation to conduct a general banking business on Big Pine Key, Monroe County, Florida. By letter dated March 28, 1975, the Department required that all pending applications for bank charters be resubmitted without an additional filing fee. Appellants complied by filing a new application on March 31, 1976, and sent additional requested information to the Department in May of 1976.

In a memorandum dated July 8,1977, the Department advised appellants that their application would be processed pursuant to chapter 77-453, Laws of Florida, effective June 30,1977, in conjunction with the emergency rules adopted by the Department to implement chapter 77-453. Appellants promptly acknowledged receipt of this memorandum, apparently without opposition to its provisions.

State bank examiners conducted a field investigation in October of 1977 and submitted their report on November 1, 1977. The Department rendered its final order denying appellants’ application on December 22, 1977.

Appellants filed a petition for writ of certiorari in the district court, alleging that the controlling statutory provisions, subsections (l)(b) and (c) of section 659.03, Florida Statutes (1977), improperly delegated legislative authority to the Department of Banking and Finance. They also asserted that the procedures employed in evaluating their application deprived them of due process. The District Court of Appeal, First District, rejected these arguments and affirmed the agency action.

Appellants renew their assault upon the constitutionality of section 659.03(l)(b) and (c) in this Court. They contend that like the statute regulating establishment of cemeteries held invalid in Dickinson v. State, 227 So.2d 36 (Fla.1969), section 659.03 is so lacking in legislative standards and guidelines that it unlawfully delegates legislative authority.

We are unpersuaded by appellants’ argument. In relevant part, the legislative scheme for the evaluation of banking applications is contained in section 659.03(1) and (2):

(1) Upon the filing of an application, the department shall make an investigation of:
(a) The character, reputation, financial standing and motives of the organizers, incorporators and subscribers in organizing the proposed bank or trust company.
(b) The need for banking or trust facilities or additional banking or trust facilities, as the case may be, in the community where the proposed bank or the principal office of the proposed trust company is to be located, giving particular consideration to the adequacy of existing banking or trust facilities and the need for further banking or trust facilities in the locality.
(c) The present and future ability of the community to support the proposed bank or the principal office of the proposed trust company and all other existing banking or trust facilities in the community.
(d) The character, financial responsibility, banking experience, and business qualifications of the proposed officers.
(e) The character, financial responsibility, business experience, and standing of the proposed stockholders and directors.
(2) The department shall approve or disapprove the application, in its discretion, but it shall not approve such application until, in its opinion:
(a) Public convenience and advantage will be promoted by the establishment of the proposed bank or trust company.
(b) Local conditions assure reasonable promise of successful operation for the proposed bank or the principal office of the proposed trust company and those banks or trust companies already established in the community.
(c) The proposed capital structure is adequate.
(d) The proposed officers and directors have sufficient banking or trust experience, ability and standing to assure reasonable promise of successful operation.
(e) The name of the proposed bank or trust company is not so similar as to cause confusion with the name of an existing bank.
(f)Provision has been made for suitable banking house quarters in the area specified in the application.

Reading the provisions of subsections (1) and (2) in pari materia, it is apparent that the legislature in subsection (1) has delineated the scope and subject matter of the Department’s investigation into each banking application. The facts derived from that investigation will then serve as a basis for the six conclusions which, under subsection (2), must be reached before the Department may approve an application. The terms in section 659.03(l)(b) and (c), seized upon by appellants as vague and indefinite, are defined and clarified by the criteria in section 659.03(2)(a) and (b). It thus becomes clear that the Department, its scrutiny of banking applications channelled by the above statutory provisions, implements the law rather than makes it. See National Bank of Tampa v. Green, 175 So.2d 545, 550 (Fla. 1st DCA 1965); McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

This case is unlike Dickinson v. State, supra, where the only legislative standard imposed on the comptroller when considering an application for operation of a cemetery was that there exist a need for cemetery service in the area. As contrasted with the statutory scheme here under consideration, no criteria for assessment of need were supplied by that statute.

In processing appellants’ application, the Department follówed the procedures for notice and hearing outlined in chapter 77-453, Laws of Florida, which amended section 120.60(3), Florida Statutes (1977). Because their application was filed prior to 1977, appellants contest the use of the amended procedures to their case. Section 7 of chapter 77-453, however, belies this contention. It provides the only exceptions to the new act:

This act shall not apply to any contested application which has been referred to the Division of Administrative Hearings by the agency on the effective date of this act, nor shall the time limit for automatic approval contained in paragraph (c) of section 120.60(3), Florida Statutes, as created by this act begin until the effective date of this act for those new bank, trust company, savings and loan or credit union applications which were on file with the department on the effective date of this act.

Since appellants’ application was never referred to the Division of Administrative Hearings, the act was unmistakably intended to apply to it.

Appellants’ due process attack on the procedures employed in their case is unavailing.

Accordingly, the decision of the District Court of Appeal, First District is affirmed.

It is so ordered.

ENGLAND, ALDERMAN and MCDONALD, JJ., concur.

ADKINS, J., dissents with an opinion.

ADKINS, Justice,

dissenting.

I dissent.

The question before us is whether the standards and guidelines found in the statute are sufficiently clear and definite so as to apprise those affected by the statute as to what must be done in order to comply therewith. The standards and guidelines in the statute have to be sufficiently clear and definite that a court can examine the statute, measure the action of the state agency against the statute, and be able to tell whether or not the agency acted correctly. Subsections (l)(b) and (c) of section 659.03, Florida Statutes (1977), do not do this. There is no way this Court or any court can apply the statute to a specific set of facts or circumstances and ascertain whether or not the action of the department was authorized and consistent with the statute.

The department is required to make an investigation of “the need for banking or trust facilities or additional banking or trust facilities.” Does the statute demand that a given number of residential dwellings must exist to establish a need? Does the statute mandate there must be a certain percentage of new commercial businesses to establish need or that there must be a mixture of residential and commercial businesses to establish a need? Although the statute is definite in providing there must be a “need” before a banking charter is issued, there is nothing in the statute to establish guidelines or directives in determining the “need” for banking facilities.

This indefinite need must exist “in the community where the proposed bank or principal office of the proposed trust company is to be located.” The terms “community” and “locality” are not defined in the statute and the statute offers no assistance as to how a determination of the meaning of such terms is to be made.

There is no way that this Court or any court can review the action of the department and determine whether there is a “need” in the “community”. In the practical application of this statute, the permitting of a bank charter rests entirely within the “discretion” of the department.

In Dickinson v. State, 227 So.2d 36, 37-38 (Fla.1969), we said:

The exact meaning of the requirement of a standard has never been fixed. The exigencies of modern government have increasingly dictated the use of general rather than minutely detailed standards in regulating enactments under the police power. However, when statutes delegate power with inadequate protection against unfairness or favoritism, and when such protection could easily have been provided, the reviewing court should invalidate the legislation. In other words, the legislative exercise of the police power should be so clearly defined, so limited in scope, that nothing is left to the unbridled discretion or whim of the administrative agency charged with the responsibility of enforcing the act. Mahon v. County of Sarasota, 177 So.2d 665 (Fla.1965).

and

Fla.Stat., § 559.39, F.S.A., does not include any rule which defines even generally the terms “need for a cemetery” and “need for further facilities.” The effect of the statute is to confer upon the defendant the authority to grant approval to one yet withhold it from another, at whim, and without guides of accountability-

The Court in Dickinson, supra, held that the statute was unconstitutional.

In my opinion the statute is unconstitutional and the decision of the district court of appeal should be quashed.

       Moreover, as noted previously, the Department of Banking and Finance notified appellants in July, 1977, that their application would be processed pursuant to chapter 77-453. Appellants lodged no objection to the use of the amended procedures, thereby waiving any right to complain at this late stage. See also § 120.-72(2)(a), Fla.Stat. (1977).


author: McDONALD, Justice.

text:
    Juan VINALES, Antonio Luis Alvarez, and Jose Fernandez De Castro, Appellants, v. STATE of Florida, Appellee.
    No. 57782.
    Supreme Court of Florida.
    Feb. 19, 1981.
    Richard A. Beiley, Lawrence E. Besser and Benedict P. Kuehne of Bierman, Son-nett, Beiley & Shohat, Miami, for appellants.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., Miami, for appellee.
   McDONALD, Justice.

This is a direct appeal from the Third District Court of Appeal, 374 So.2d 570 (Fla. 3d DCA 1979), in which the appellants’ convictions for bookmaking were affirmed. The district court initially and directly construed article II, section 5(a) of the Florida Constitution; we have jurisdiction. Art. V, § 3(b)(1), Fla.Const. (1972).

The question before the Court is whether a temporary nonpaying appointment of two City of Miami police officers as investigators of the State Attorney for the 11th Judicial Circuit for the purpose of completing a valid investigation violated the article II, section 5(a) prohibition against dual office holding. We hold that it did not and adopt the following language from the district court opinion:

[T]hat section does not apply to temporary appointment for law enforcement purposes where no additional remuneration is paid to the police officer. We think that it is clear that the constitutional language is directed toward an accumulation of officers [sic] for the private benefit of the officeholder. Even though the broad prohibition advanced by the defendants could possibly be read into the Florida Constitution, we find that nothing in the wording of the prohibition so dictates. Where a constitutional provision is susceptible to more than one meaning, the meaning adopted by the legislature is conclusive. See Greater Loretta Improvement Association v. State ex rel. Boone, 234 So.2d 665 (Fla. 1970). In the present instance, the legislature, by the enactment of Section 27.-251, Florida Statutes (Supp.1978), has chosen specifically to authorize the appointment of municipal police officers for some purposes as investigators for the state attorney. Although this statute was enacted subsequent to the matters presently before us, the legislature has thus construed the applicable section of our state constitution as one which does not prohibit dual office holding on a temporary basis without remuneration for the purpose of criminal investigation.
Inasmuch as both the legislative interpretation and sound reason support the view that the temporary appointments of Officers Brockmeier and Sparrow do not violate the constitutional prohibition against dual office holding, we hold that no error has been shown in their execution of the applications for orders authorizing the wiretaps.

Id. at 572.

The convictions are affirmed.

It is so ordered.

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

       Art. II, § 5(a), Fla.Const.
      No person holding any office of emolument under any foreign government, or civil office of emolument under the United States or any other state, shall hold any office of honor or of emolument under the government of this state. No person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein, except that a notary public or military officer may hold another office, and any officer may be a member of a constitution revision commission, constitutional convention, or statutory body having only advisory powers.


author: PER CURIAM.

text:
    Blanca IGLESIA, Appellant, v. Gustavo FLORAN et al., Appellees.
    No. 58892.
    Supreme Court of Florida.
    Feb. 19, 1981.

      Robert L. Switkes of the Law Offices of Schwarz & Schiffrin, Miami Beach, and Bonnie Lee Daniels of Lawrence & Daniels, Miami, for appellant.
    Peters, Pickle, Flynn, Niemoeller, Stieglitz and Downs, Jeanne Heyward, and Betsy E. Hartley of Talburt, Kubicki & Bradley, Miami, for appellees.
    Larry Klein, West Palm Beach, Florida, for The Academy of Florida Trial Lawyers, amicus curiae.
   PER CURIAM.

While in the course of his employment with Ace Parker, Inc., Gustavo Floran delivered merchandise in a car his employer had rented from Hertz Corporation. On one trip Floran was accompanied by Jose Iglesia, another Ace Parker employee. As a result of Floran’s operation of the motor vehicle on that day, Iglesia was thrown from the vehicle and killed.

Iglesia’s personal representative sought and recovered workmen’s compensation benefits from Ace Parker, Inc. She then brought suit against Floran and Hertz to recover damages for her husband’s death. Hertz defended against the lawsuit by contending that Florida law bars suits against the owner of a rental vehicle leased by an employer who has paid workmen’s compensation benefits, relying on Smith v. Ryder Truck Rentals, Inc., 182 So.2d 422 (Fla. 1966), and Zenchak v. Ryder Truck Rentals, Inc., 150 So.2d 727 (Fla. 3d DCA 1963), cert. discharged, 164 So.2d 200 (Fla.1964). On the basis of those cases, the trial judge granted summary judgment for Hertz Corporation and against Iglesia’s personal representative.

In seeking to recover against Floran, Iglesia argued to the trial court the unconstitutionality of a 1978 amendment to section 440.11(1), Florida Statutes (1977). This amendment grants immunity from tort liability to co-employees who, while in the course of their employment, negligently injure other employees of the same employer, unless the employees act with willful and wanton disregard or unprovoked physical aggression or with gross negligence. The trial court ruled that the 1978 amendment was constitutional, in that it did not bar access to courts under article I, section 21 of the Florida Constitution, and that summary judgment for Floran was proper. This ruling forms the basis for the appeal now presented to us.

With respect to Hertz Corporation, the trial judge correctly granted summary judgment on the basis of Smith and Zenc-hak. The workmen’s compensation statute has absolutely no effect on Hertz Corporation’s immunity from suit under the common law doctrine we have previously announced. Indeed, Iglesia does not suggest any basis to recede from our earlier decision in this regard.

With respect to Floran, the trial judge was also correct. In Kluger v. White, 281 So.2d 1 (Fla.1973), we held that the legislature may not abolish a common law right for which no reasonable alternative is provided, unless an overpowering public necessity to do so exists. Before the 1978 amendment to section 440.11, an employee had the right to bring a lawsuit against a co-employee for death or injuries negligently inflicted. Frantz v. McBee Co., 77 So.2d 796 (Fla.1955). But in Kluger we stated:

In McMillan v. Nelson, 149 Fla. 334, 5 So.2d 867 (1942), this Court approved the so-called “Guest Statute” which merely changed the degree of negligence necessary for a passenger in an automobile to maintain a tort action against the driver. It did not abolish the right to sue, and does not come under the rule which we have promulgated.

281 So.2d at 4. Section 440.11 still provides a cause of action for gross negligence just as the court-sustained “guest statute” did.

The Florida legislature has broad powers in enacting legislation. The acts that it passes are to be sustained unless they run afoul of a limitation placed upon them by the Florida Constitution or violate a provision of the United States Constitution. Contrary to the contention of Iglesia, section 440.11 does not violate the access to courts provision of the Florida Constitution and should be upheld.

The summary judgment order of the trial court is affirmed.

It is so ordered.

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

ADKINS, J., dissents.

      . Ch. 78-300, § 2, Laws of Fla.

      . When there is a statute granting immunity from liability to employees for the negligent acts of other employees, most jurisdictions have precluded actions by co-employees against each other. See Annot. 21 A.L.R.3d 845, 849 (1968). Others, however, have not. Grantham v. Denke, 359 So.2d 785 (Ala. 1978) (Alabama’s statute excluded employees from its definition of third parties against whom actions could be brought. No exception allowing an action for gross negligence was made.).

      .This provision of the constitution states in relevant part: “The courts shall be open to every person for redress of any injury ...”

      . Frantz recognized the right of one employee to sue a co-employee for negligent acts and emphasized the absence of a specific statutory prohibition for such an action.


text:
    THE FLORIDA BAR, Complainant, v. William R. RYAN, Respondent.
    No. 59881.
    Supreme Court of Florida.
    Feb. 19, 1981.
    Michael C. Whittington, Bar Counsel, Tampa, for complainant.
    No appearance for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against William R. Ryan, a member of The Florida Bar, is presently before us on complaint of The Florida Bar and Report of Referee. Pursuant to Rule 11.06(9)(b) of the Integration Rule of The Florida Bar, the referee’s report and record were duly filed with this Court. No petition for review pursuant to Rule 11.09(1), Integration Rule, has been filed.

Having considered the pleadings and evidence, the referee found as follows:

Under Case No. 06C78002
As employee of the law firm of Duggar & Ryan, P.A., William R. Ryan wrongfully took $20,000.00 belonging to the law firm for his own personal use.
This act constituted a felony under Florida Statute 812.021, and under date of October 27, 1976, a pretrial intervention agreement was reached between the Respondent and the State Attorney under Florida Statute 944.025 and approved by the Circuit Judge. The Respondent admitted his guilt and the agreement provided that the Respondent was to make restitution of $20,000.00, of which only $17,500.00 has been made prior to the hearing.
Under Case No. 06C78006
On March 16, 1978, the Third Statewide Grand Jury filed its indictment against the Respondent on felony charges of bringing marijuana into the State of Florida, possession of marijuana and conspiracy to possess more than 100 pounds of marijuana with intent to sell.
A bond of $100,000.00 initially set was reduced to $50,000.00 and was then posted by Mr. Ryan. He failed to appear in court to enter a plea as required and disappeared. The bond was estreated and an order entered October 11, 1978 denying the Second Motion to Set Aside Bond Estreature.

The referee recommends that respondent in Case No. 06C78002 be found guilty of violating The Florida Bar Integration Rule 11.02(3)(a) and Code of Professional Responsibility, Disciplinary Rules 1-102(A)(3), (4) and (6); and in Case No. 06C78006 be found guilty of violating The Florida Bar Code of Professional Responsibility, Disciplinary Rules 1-102(A)(5) and (6) and Ethical Consideration 1-5. The referee further recommends that respondent be disbarred.

Having carefully reviewed the record, we approve the findings and recommendations of the referee.

Accordingly, respondent, . William R. Ryan, is hereby disbarred from the practice of law in the State of Florida.

Costs in the amount of $713.83 are hereby taxed against the respondent.

It is so ordered.

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


text:
    Thomas KNIGHT, Petitioner, v. STATE of Florida, Respondent.
    No. 59741.
    Supreme Court of Florida.
    Feb. 24, 1981.

      Jesse J. McCrary, Jr., Miami, Fletcher N. Baldwin, Jr., and Susan Cary, Gainesville, for petitioner.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., Miami, for respondent.
   PER CURIAM.

We have for consideration a petition for writ of habeas corpus by Thomas Knight whose conviction and sentence of death were affirmed by this Court in Knight v. State, 338 So.2d 201 (Fla.1976). We originally transferred this petition to the Eleventh Judicial Circuit and directed that it be treated as a motion for post-conviction relief. The trial judge in considering the petition properly determined that since petitioner’s claim for relief is predicated on the assertion of ineffective assistance of appellate counsel, such relief can only be granted by habeas corpus in the appellate court unless it was caused by an act or omission of the trial court. The ineffective assistance of counsel allegations stem from acts or omissions before this Court, and therefore we have jurisdiction and will consider the petition for habeas corpus on its merits.

The Governor has signed a death warrant for petitioner’s execution, which has been set for March 3, 1981. We received a motion for stay of execution and supporting briefs from the petitioner, Knight, as well as the extensive legal arguments contained in the petition for writ of habeas corpus. The state has filed a responding brief, and the Court has heard oral argument in the cause.

In summary, and for the reasons hereafter expressed, we deny the petition for writ of habeas corpus. We find that counsel on the initial appeal for the petitioner was court appointed and his representation was a result of state action. We have considered each of the asserted failures and omissions of this appellate counsel and have determined that the assertions individually and collectively are without merit. We expressly find that none of the asserted failures or omissions establish a serious incompetency that falls measurably below the performance expected of appellate counsel and that these specific asserted failures or omissions did not affect the outcome of the appellate proceedings to the prejudice of the appellant. We reach this conclusion and finding after a review of not only the record on this petition for habeas corpus but also the record on the initial appeal to this Court.

I. Facts in the Instant Case

Because of the issues and circumstances in this proceeding, we restate the facts of this unusual and bizarre abduction and slaying.

On July 17,1974, at approximately 8:00 a. m., one of the victims, Sydney Gans, left his wife at their home and drove his gold 4-door Mercedes to his business. As he began to get out of his car at his business, he was met by a black male who approached him with an automatic rifle and told him to get back into the car and drive to his residence and get his wife. The black male abductor got into the rear of the car and Mr. Gans drove back to his home and obtained his wife, who got into the front passenger seat. The black male abductor told Mr. Gans that he wanted $50,000. Mr. Gans drove to a bank in downtown Miami, got out of the car and went inside the bank while his wife moved into the driver’s seat and began driving the car around the downtown area. Once inside the bank, Mr. Gans advised the president of the circumstances and the demand for $50,000. The president called the Federal Bureau of Investigation, which sent agents to the president’s office and coordinated surveillance of the vehicle driven by Mrs. Gans with the City of Miami police department. Officers stationed in the vicinity of the bank, including an agent for the FBI, observed the Gans vehicle stopped at a traffic light and observed the weapon on the lap of the abductor in the rear seat. Mr. Gans received $50,000 in marked funds which were placed in a paper bag. He went outside and was picked up by his wife and the abductor. Surveillance units followed the Gans vehicle but lost it for about four or five minutes. Subsequently, two officers came upon the vehicle in a construction area with the front passenger door open, the right rear passenger door open, and the trunk open. As the officers approached the vehicle, they observed the back of a black male approximately 150 feet from the vehicle who turned and had a rifle-type weapon in his hands. No shots were fired, and the black male turned and ran into a thick growth of scrub trees and bushes. The body of Mrs. Gans was found behind the steering wheel. The body of Mr. Gans was found lying about 25 feet from the vehicle. It appeared he had been dragged from the vehicle after he had been shot. Both died as a result of gunshot wounds perforating their necks, the fatal shots having apparently been fired from the rear seat of the Gans vehicle. A search of the surrounding area was commenced. Approximately four and a half hours later, the petitioner, Thomas Knight, was apprehended in a high weeded area about 2000 feet from the Gans vehicle. Underneath the petitioner when he was apprehended was an automatic rifle and a paper bag containing $50,000 buried in the dirt.

There were numerous law enforcement eyewitnesses to the events subsequent to Mr. Gans leaving the bank and immediately prior to the victims being killed. Four law enforcement officers positively identified Knight as being the abductor in the Gans vehicle. Knight’s fingerprint was on the trunk of the vehicle.

The issue of the petitioner’s competency at the time of the offense was presented to the jury. Five expert witnesses testified, four of whom rendered opinions that the petitioner was sane at the time of the offense. The fifth expert witness, presented on the behalf of the petitioner, believed Knight was not sane at the time of the offense and that he had a severe paranoid-schizophrenic mental condition.

Four private attorneys were appointed to represent the petitioner at his trial, including a former United States District Attorney and a former Assistant United States District Attorney for the Southern District of Florida. One of the four trial counsel was also the counsel on appeal.

II. Effectiveness of Counsel Standards

The state contends that petitioner’s original counsel on appeal was in reality the same as privately retained counsel and that the standard for effective assistance of counsel under these facts, especially in light of this Court’s mandatory review in death penalty cases, is not far above the “farce and mockery” test rejected for trial counsel effectiveness in Meeks v. State, 382 So.2d 673 (Fla.1980). We reject this contention by the state. Counsel who represented the petitioner on appeal was appointed by the trial court immediately following the sentencing. Although the petitioner did ask for the named appellate counsel to be appointed, it should be noted that this counsel was one of four appointed counsel who represented the petitioner at trial. In view of this holding, we need not address in this cause the differences, if any, in standards of competency between appointed and privately retained counsel.

Establishing the appropriate test or standard for determining reasonably effective assistance of counsel has been considered by some a bramble bush thicket. The United States Supreme Court has avoided speaking definitely on this issue. See Maryland v. Marzullo, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978) (White and Rehnquist, JJ., dissenting). Numerous commentators have written recently on this issue. Several courts have found guidance in the American Bar Association Standards for Criminal Justice ch. 4 (2d ed. 1980), relating to the function of defense counsel.

In determining whether defendant has been provided with reasonably effective assistance of counsel, we believe the following four-step process encompassed in United States v. DeCoster (DeCoster III), 624 F.2d 196 (D.C.Cir.1979) (en banc), provides a means to discover a true miscarriage of justice and yet does not place the judiciary in the role of interfering with defense counsel’s legal and tactical conduct at trial or on appeal. We adopt the following four principles as a standard to determine whether an attorney has provided reasonably effective assistance of counsel to his client.

First, the specific omission or overt act upon which the claim of ineffective assistance of counsel is based must be detailed in the appropriate pleading.

Second, the defendant has the burden to show that this specific omission or overt act was a substantial and serious deficiency measurably below that of competent counsel. As was explained by Judge Lev-enthal in DeCoster III: “To be ‘below average’ is not enough, for that is self evidently the case half the time. The standard of shortfall is necessarily subjective, but it cannot be established merely by showing that counsel’s acts or omissions deviated from a checklist of standards.” 624 F.2d at 215. We recognize that in applying this standard, death penalty cases are different, and consequently the performance of counsel must be judged in light of these circumstances.

Third, the defendant has the burden to show that this specific, serious deficiency, when considered under the circumstances of the individual case, was substantial enough to demonstrate a prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings. In the case of appellate counsel, this means the deficiency must concern an issue which is error affecting the outcome, not simply harmless error. This requirement that a defendant has the burden to show prejudice is the rule in the majority of other jurisdictions.

Fourth, in the event a defendant does show a substantial deficiency and presents a prima facie showing of prejudice, the state still has an opportunity to rebut these assertions by showing beyond a reasonable doubt that there was no prejudice in fact. This opportunity to rebut applies even if a constitutional violation has been established. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); DeCoster III.

III. Habeas Corpus Disposition

The petition for habeas corpus asserts that the briefs submitted to this Court on appeal were poorly written and failed to properly present the necessary legal issues to provide a fair review of petitioner’s trial. The briefs by counsel on the initial appeal, while not a model of legal writing, did set forth 23 asserted points of error. In our opinion, reported at 338 So.2d 201, we expressly discussed issues concerning the partiality of a juror, the pervasiveness of the pretrial publicity, the denial of a change of venue, the admission of certain evidence as being part of the res gestae, the authority to prosecute upon felony murder when the indictment charged premeditated murder, and the appropriateness of the death sentence. Poor writing style is not a ground for relief.

The petitioner sets forth four legal errors which he contends his appellate counsel should have presented to this Court on appeal, arguing that the failure to present those issues to the Court resulted in his being denied reasonably effective assistance of counsel. The asserted legal errors concern: (1) the trial court’s failure to instruct the jury on elements of the underlying felony; (2) the trial court’s failure to instruct the jury on the result of a verdict of not guilty by reason of insanity; (3) the trial court’s exclusion of the witness Pat Duval from testifying in the cause; (4) the trial court’s application of the statutory aggravating and mitigating circumstances and its failure to find any mitigating circumstances.

We will address these points individually and apply the standards adopted in Part II to determine whether counsel for this petitioner provided reasonably effective assistance in the initial appeal.

The first issue concerns the trial judge’s failure to instruct the jury on the elements of the underlying felony. The petitioner contends that our decision in Robles v. State, 188 So.2d 789 (Fla.1966), is determinative and that a trial court’s failure to give an adequate instruction on the underlying felony is a fatal error even when such instruction has not been requested by the defendant. Subsequent to our opinion on the initial appeal in this cause, we decided State v. Jones, 377 So.2d 1163 (Fla.1979), which reaffirmed our decision in Robles v. State.

The record in the instant case reflects that the trial judge gave the general definitive instructions for homicide but did not specifically instruct upon the elements of the underlying felony of kidnapping or robbery. There was no request or objection by petitioner’s trial counsel to this failure to give these instructions.

It is clear that in both Robles and Jones the primary charge was felony murder and the state in neither case contended the evidence was sufficient to establish premeditated murder. We expressly noted in Jones that there was no contention that there was sufficient evidence to establish premeditated murder. We conclude that where there is sufficient evidence of premeditation, the failure to give the underlying felony instruction, where it has not been requested, is not error which mandates a reversal absent a showing of prejudice. See Frazier v. State, 107 So.2d 16 (Fla. 1958).

We find the failure of appellate counsel, who was also trial counsel, to raise this issue is not an omission that was a serious deficiency, and we further find that no prejudice was shown. In fact, an argument could be made under the facts of this case that giving the underlying felony instruction would have been more of a detriment than a benefit to this petitioner. This stems from the fact that one of the arguments of the petitioner at trial was the lack of direct evidence that Knight actually killed the victims. Indeed, the record reflects that there was strong circumstantial evidence but no direct eyewitness evidence of the actual killings, in contrast to the considerable direct evidence, including numerous law enforcement eyewitnesses, that Knight was the perpetrator of the kidnapping and robbery.

However, the record in this cause, and in particular the final argument of counsel, demonstrates that the state, although it mentioned felony murder, strongly argued premeditated murder to the jury. The record reflects that there is not only sufficient but overwhelming evidence of premeditated murder. We find that under the circumstances of this case and our review of the record that neither Robles nor Jones applies, but Frazier does apply. We are satisfied beyond a reasonable doubt that the failure to give the instruction at issue was not prejudicial and did not contribute to the petitioner’s conviction. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

The second identified failure of appellate counsel is the assertion that he should have anticipated this Court’s ruling in Roberts v. State, 335 So.2d 285 (Fla. 1976), and requested an instruction on the consequences of the verdict of not guilty by reason of insanity. Our decision in Roberts was decided subsequent to trial, briefs and oral argument in this cause. In Roberts there was a specific request at the trial court level for the instruction, and we adopted the rule of law expressed in Lyles v. United States, 254 F.2d 725 (D.C.Cir. 1957), cert. denied, 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067 (1958), cert. denied, 362 U.S. 943, 80 S.Ct. 809, 4 L.Ed.2d 771 (1960), cert. denied, 368 U.S. 992, 82 S.Ct. 610, 7 L.Ed.2d 529 (1962). Clearly, our Roberts decision did not adopt a rule of law dictated by the United States Supreme Court, the United States constitution, or the Florida constitution, nor did it apply retroactively to any pending decisions except those in which that issue had been preserved and which were actually pending on appeal. Petitioner’s counsel in oral argument recognized the well established rule of law that there is no requirement that counsel, to be reasonably effective, must anticipate changes in the law. See Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970). There clearly was no substantial deficiency by appellate counsel and no prejudice stemming from the failure to raise this issue.

The third asserted omission by appellate counsel concerns his failure to raise as error the exclusion of testimony by witness Pat Duval. The testimony of this witness was proffered at trial to show the jury that, given the family history of abuse and incest by the father of the petitioner, the feelings professed by the petitioner to the expert witnesses about his father were in fact “inappropriate.” The proposed witness Duval was not an expert witness and our review of the record reveals that the ruling of the trial judge was clearly within his discretion and was proper under the circumstances of this case. The failure to raise this issue on appeal was not a substantial deficiency by appellate counsel, and there was no prejudice.

The fourth asserted omission of appellate counsel concerns his failure to argue an improper doubling of the aggravating circumstances and of failure to properly present mitigating circumstances for reevaluation by this Court. The record does reflect that the trial judge doubled up certain listed aggravating circumstances but that in and of itself is not error. See Hargrave v. State, 366 So.2d 1 (Fla.1978); Washington v. State, 362 So.2d 658 (Fla. 1978); Elledge v. State, 346 So.2d 998 (Fla. 1977). What is important is that the aggravating circumstances considered by the trial judge were in fact statutory aggravating circumstances. The full sentencing order is set forth in the original opinion and reflects full and considered judgment by the trial judge and this Court of all the aggravating and mitigating circumstances. The trial judge specifically addressed and evaluated the mental condition of the petitioner as it should be applied under section 921.-141(6)(b), (f), Florida Statutes (1973). He had heard the testimony of five experts concerning the mental condition of the petitioner and determined that it should not be considered a mitigating factor.

Our decision in Provence v. State, 337 So.2d 783 (Fla.1976), upon which the petitioner principally relies, does not control because there were no mitigating circumstances. See Elledge v. State. Provence was decided in July of 1976, seven months after the initial brief was filed on the appeal and three months after oral argument. Under the circumstances, we find there was no substantial deficiency in appellate counsel for failure to present this issue to the Court and no demonstrated prejudice to the petitioner.

We have carefully reviewed the petition, the record in this cause, and the record in the original cause concerning the asserted issues to make our findings in this proceeding. We are very mindful that this is a death case, that an execution warrant has been signed, and that our findings from these records must now be presumed correct by any federal court that reviews these proceedings, absent certain factors enumerated in 28 U.S.C. § 2254(d) (1976). See Sumner v. Mata, - U.S. -, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981).

We conclude the record is clear that there was no substantial deficiency in the petitioner’s representation on appeal by which the petitioner was prejudiced. The petition for habeas corpus is denied, as is the stay of execution of sentence.

No petition for rehearing will be entertained.

It is so ordered.

ADKINS, BOYD, OVERTON, ALDERMAN and McDONALD, JJ., concur.

SUNDBERG, C. J., concurs in result only.

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

      . See, e. g., Erickson, Standards of Competency for Defense Counsel in a Criminal Case, 17 Am.Crim.L.Rev. 233 (1979); Gard, Ineffective Assistance of Counsel — Standards and Remedies, 41 Mo.L.Rev. 483 (1976).

      . See, e. g., Taylor v. State, 291 Ala. 756, 287 So.2d 901 (1973), cert. denied, 416 U.S. 945, 94 S.Ct. 1955, 40 L.Ed.2d 298 (1974); People v. Pope, 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859 (1979); State v. Tucker, 97 Idaho 4, 539 P.2d 556 (1975); State v. Hester, 45 Ohio 2d 71, 341 N.E.2d 304 (1976); Baxter v. Rose, 523 S.W.2d 930 (Tenn.1975); State v. Harper, 57 Wis.2d 543, 205 N.W.2d 1 (1973). See generally Erickson, supra note 1.

      . At least five circuit courts of appeals have indicated general agreement. See Davis v. Alabama, 596 F.2d 1214 (5th Cir. 1979), vacated as moot, 446 U.S. 903, 100 S.Ct. 1827, 64 L.Ed.2d 256 (1980), on remand 623 F.2d 366 (5th Cir. 1980); Cooper v. Fitzharris, 586 F.2d 1325, 1331-32 (9th Cir. 1978) (en banc), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979); United States v. Cooper, 580 F.2d 259, 263 n. 8 (7th Cir. 1978); Harshaw v. United States, 542 F.2d 455, 456-57 (8th Cir. 1976); United States ex rel. Green v. Rundle, 434 F.2d 1112, 1115-16 (3d Cir. 1970). Contra, Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974); but see United States v. Sumlin, 567 F.2d 684, 689 (6th Cir. 1977), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978). See also Coles v. Peyton, 389 F.2d 224, 226 (4th Cir.) (placing burden on government to show lack of prejudice), cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968). At least sixteen states have indicated agreement with the majority federal rule. See Erickson, supra note 1, at 249 n. 137.


text:
    Manuel VALLE, Appellant, v. STATE of Florida, Appellee.
    No. 54572.
    Supreme Court of Florida.
    Feb. 26, 1981.

      Bennett H. Brummer, Public Defender, and Elliot H. Scherker and Karen M. Gott-lieb, Asst. Public Defender, Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Janet Reno, State Atty., and Ira N. Loewy, Asst. State Atty., Miami, for appellee.
   PER CURIAM.

Appellant, Manuel Valle, was convicted of the first-degree murder of a police officer, attempted murder in the first degree, and possession of a firearm by a convicted felon. Appellant pleaded guilty to automobile theft. The trial judge imposed the death sentence in accordance with the jury’s advisory recommendation. We have jurisdiction.

For the reasons expressed, we must reverse for a new trial. We find that requiring this appellant to go to trial within twenty-four days after arraignment resulted in a denial of effective assistance of counsel where defense counsel, even though diligent, had no opportunity to make proper inquiry into appellant’s mental condition or to depose twenty-four of the fifty-nine witnesses named by the state pursuant to the Florida criminal discovery rules. With this holding, we need not address the other issues raised on appeal.

The chronological history of this cause is unrefuted:

On April 2, 1978, appellant allegedly killed a police officer after the officer had stopped appellant for a traffic violation.

On April 4, authorities apprehended appellant.

On April 8, the trial court declared appellant indigent and appointed private counsel as special public defender.

On April 13, the grand jury returned an indictment.

On April 14, the trial court arraigned appellant, and set trial for May 8. Defense counsel protested the date as leaving insufficient trial preparation time.

On April 17, in accordance with Florida criminal discovery rules, the state furnished defense counsel a list of twenty-seven witnesses; statements of appellant, codefend-ants, and witnesses; documents relevant to searches; and reports of experts.

On April 18, the state furnished appellant with supplemental discovery, twenty-four additional witnesses, more witness statements, and a police report.

On April 24, appellant filed twenty-five motions, including a motion for psychiatric evaluation. The trial court set a hearing for the motions on the next day.

On April 25, defense counsel asked for additional time to present testimony and evidence on some of the motions. The request was denied. Thereafter, all of the motions were either denied or withdrawn. With reference to the psychiatric evaluation, the trial court asked defense counsel his basis for making the request. Counsel advised the court that he based the motion on appellant’s past history, his conversations with appellant, and appellant’s involvement in an industrial accident which resulted in intracranial surgery to the inner ear. The trial judge denied the psychiatric examination. Also on this date, the state furnished to appellant the names of five additional state witnesses, additional witness statements, and a police report.

On May 1, defense counsel filed a motion for continuance which detailed in twenty-two paragraphs the reasons why he could not properly prepare for a May 8th trial and at the same time provide appellant proper assistance of counsel. The motion stated in part that counsel had first received discovery from the state on April 17 and had subsequently received additional discovery; the state had listed fifty-six witnesses; depositions had been set and would be taken as expeditiously as possible; that due to the large number of witnesses and vast array of material, it would be “physically, logistically, practically and realistically impossible to prepare for trial on May 8, 1978.” The state also furnished appellant a supplemental discovery list containing three additional witnesses on this date.

On May 2, the state furnished appellant additional supplemental discovery, a tape recording of police broadcasts, the police report of the lead investigator, and experts’ reports.

On May 3, the state furnished appellant a certified English translation of notes written by appellant in Spanish.

On May 4, hearing was held on the May 1 continuance motion.

At the hearing, counsel further informed the court that he had received additional discovery since the motion’s filing and that he had been diligent in preparing the case for trial. Counsel continued by detailing what had been done since his appointment and stated:

[t]he arraignment, as the Court well knows, was on the 14th. We set a trial date. The Court, over objection of counsel, set a trial date on May 8th with thirty-one witnesses. It’s a denial of equal protection; denial of due process of law and I cannot effectively represent this man unless I have sufficient time to prepare his defense, go over these depositions with my client; go over certain matters with my client. There is just so many hours in a day and I just cannot effectively at this particular time proceed to trial in a case of this magnitude with the possible penalty involved, based on the shortness of time.
I just can’t do it.

Later in the proceeding, defense counsel stated: “[W]e are breaking a track record here. If we are forced to go to trial on Monday I will be totally unprepared.” Counsel further advised the court that he could be ready for trial within sixty days from the date of arraignment. The trial court denied the motion for continuance, and appellant’s counsel immediately moved to withdraw on the grounds that he could not adequately represent appellant. The trial court denied the motion.

The case proceeded to trial on the set date. The state presented thirty-two witnesses of whom appellant had deposed all but three. The three-day trial resulted in appellant’s conviction for first-degree murder and other crimes.

Immediately after the murder conviction, defense counsel advised the court that he had not had sufficient time to investigate appellant’s background or to locate witnesses to testify in mitigation and that the unlimited nature of mitigating circumstances which could be presented only intensified the need for time to prepare. Counsel moved for a continuance to allow for preparation time and also for the purpose of a presentence investigation. The motion was denied, and the cause proceeded immediately to the sentencing phase. The only witness presented in mitigation was appellant’s wife who testified that appellant had incurred a head injury which caused him emotional disturbance. Thereafter, counsel renewed his motion for continuance for the purpose of a neurological examination. The trial court denied the request. Again, at the close of the advisory sentence proceedings and prior to the entry of sentence, defense counsel moved for a continuance for presentence investigation. The motion was again denied.

The jury returned an advisory sentence recommendation of death; the trial judge imposed the death sentence.

Appellant contends that the period between arraignment and trial left defense counsel with insufficient trial preparation time both for the trial and sentencing phases of this particular proceeding. It is asserted that the trial court’s refusal to grant a continuance denied appellant effective assistance of counsel as guaranteed by the sixth and fourteenth amendments to the United States Constitution.

The state admits that appellant’s trial which commenced twenty-four days after arraignment constituted a period of time considerably less than average for capital cases, but contends that the denial of the trial continuance was both reasonable under the circumstances and a proper exercise of discretion. The state argues that the conviction and sentence should stand because (1) appellant failed to identify any resulting prejudice; (2) the evidence of appellant’s guilt was overwhelming; and (3) defense counsel would not have been better prepared even if allowed more time. We reject the state’s contentions and, under the circumstances of this case, find that the trial judge abused her discretion.

It is a basic due process right and essential to a fair trial that defense counsel in a criminal case be afforded a reasonable opportunity to prepare his case. The United States Supreme Court has made this clear:

We have many times repeated that not only does due process require that a defendant, on trial in a state court upon a serious criminal charge and unable to defend himself, shall have the benefit of counsel, ... but that it is a denial of the accused’s constitutional right to a fair trial to force him to trial with such expedition as to deprive him of the effective aid and assistance of counsel.

White v. Ragen, 324 U.S. 760, 763-64, 65 S.Ct. 978, 980, 89 L.Ed. 1348 (1945) (citations omitted). Accord, Hawk v. Olson, 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61 (1945); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932).

This Court has also set forth this basic premise:

Justice requires, and it is the universal rule, observed in all courts of this country, it is most sincerely to be hoped, that reasonable time is afforded to all persons accused of crime in which to prepare for their defense. A judicial trial becomes a farce, a mere burlesque, and in serious cases a most gruesome one at that, when a person is hurried into a trial upon an indictment charging him with a high crime, without permitting him the privilege of examining the charge and time for preparing his defense. It is unnecessary to dwell upon the seriousness of such an error; it strikes at the root and base of constitutional liberties; it makes for a deprivation of liberty or life without due process of law; it destroys confidence in the institutions of free America and brings our very government into disrepute.

Coker v. State, 82 Fla. 5, 7, 89 So. 222, 222 (1921). In Scott v. State, 101 Fla. 250, 253-54, 134 So. 50, 51-52 (1931), the Court stated:

The defense of one charged with murder in the first degree, or other high crime, is a serious undertaking, and should not be considered lightly. This court does not take the position that one charged with crime, capital or otherwise, may not be tried promptly after the indictment is presented, but when the defendant, in due season, asks for a reasonable time in which to prepare his defense the time should be granted unless there is a showing to the contrary.

The West Virginia Supreme Court of Appeals has recently reached the same result. State v. DeMastus, 270 S.E.2d 649 (W.Va. 1980). See State ex rel. The West Virginia-Pittsburgh Coal Co. v. Eno, 135 W.Va. 473, 63 S.E.2d 845 (1951).

In our view, the prejudice to appellant in the trial phase of the instant case is clear from the record. With the expedited trial date and resulting abbreviated trial preparation period, defense counsel, even though diligent, was unable to interview twenty-four of the fifty-nine witnesses listed by the state pursuant to the discovery rules; was denied the opportunity to investigate appellant’s mental condition; and was denied the opportunity to present evidence concerning pretrial motions.

The law requires that each defendant have sufficient time to prepare a defense, including the opportunity to utilize available procedural discovery rules provided for that purpose. Florida Rule of Criminal Procedure 3.220(a)(l)(i) requires the prosecution to disclose to defense counsel the “names and addresses of all persons known to the prosecutor to have information which may be relevant to the offense charged, and to any defense with respect thereto.” It necessarily follows that the trial court must allow defense counsel the time to interview these persons to properly prepare for trial.

With reference to the trial phase of this cause, we find that the trial court should have allowed defense counsel time to interview the additional witnesses and to present evidence on his pretrial motions. The trial court should also have allowed the opportunity for a mental examination, given the evidence of appellant’s industrial accident and consequent intracranial surgery. See Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Lane v. State, 388 So.2d 1022 (Fla.1980); see also Fla.R. Crim.P. 3.210.

We reject the state’s contention that the asserted overwhelming evidence against appellant in the trial phase overrides his sixth and fourteenth amendment rights to adequate preparation time and effective assistance of counsel. What upon a limited record may appear to be first-degree murder may, upon full investigation and presentment of further evidence, be in reality a homicide of a lesser degree. We note that the state makes no accusation that defense counsel was not diligent, and, in fact, the record indicates that counsel made every preparation effort possible under the circumstances.

With reference to the sentencing phase, the prejudice to appellant is also clear from the record. There was no time to adequately locate mitigation witnesses or to investigate mitigating circumstances, specifically extreme mental or emotional disturbance and impairment of appellant’s capacity to appreciate the criminality of his conduct. We find defense counsel was denied an adequate opportunity to inquire into appellant’s background and sufficient preparation time for the sentencing phase of this cause. But, by this holding, we do not imply that there must be a continuance between a death case’s trial and sentencing hearing. What we require is that defense counsel must have a reasonable time prior to trial to prepare for both the trial and sentencing phases.

Under the circumstances, the actions of the trial judge in both the trial and sentencing phases were clearly unreasonable and an abuse of discretion.

We realize that there is a need for expeditious criminal trials and, by our holding, in no way disavow our policy in this regard. Except in special circumstances, most capital and other criminal cases should move to trial within sixty days from arraignment or appointment of counsel, the facts of each case being determinative.

Under the present facts, the state admittedly conducted appellant’s trial in record time for a capital case. It commenced only thirty-six days after the police officer’s murder, thirty-four days after appellant’s arrest, twenty-four days from the date of arraignment, and twenty-one days from the date of the first discovery information furnished by the state. To our knowledge, no death case in recent history has been tried in such a short period of time. Few felony cases, if any, share the distinction. We note that present defense counsel believed that sixty days would have given him a sufficient period of time to prepare for trial and that approximately this amount of time was given to codefend-ants who were tried for lesser offenses.

We realize there may be cases that can be tried in less than sixty days from arraignment, given the type of offense, limited number of witnesses, or requisite investigation period that may be necessary. See United States v. Pelton, 578 F.2d 701 (8th Cir. 1978) (twenty-day period from arrest to trial); Berriel v. State, 233 So.2d 163 (Fla. 4th DCA 1970) (counsel appointed five days prior to trial). The instant death case, however, does not fall within that category.

We conclude that this cause was expedited in such a manner that it denied appellant his basic rights to a fair trial and that the actions of the trial judge constituted an abuse of discretion. We accordingly vacate the judgment and sentence and remand for a new trial.

It is so ordered.

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

ADKINS, J., dissents.

      . Art. V, § 3(b)(1), Fla.Const.


text:
    Arthur H. BECKWITH, Jr., Clerk of the Circuit Court, etc., Appellants, v. WEBB’S FABULOUS PHARMACIES, INC., et al., Appellees.
    No. 55213.
    Supreme Court of Florida.
    Feb. 26, 1981.
    Harry A. Stewart, Sanford, for appellants.
    Harvey M. Alper and William H. Wack of Massey, Alper, Wack & Eaton, Altamonte Springs, for appellees and Harvey M. Alper as receiver, in pro. per.
   PER CURIAM.

The judgment of this Court was entered on May 31, 1979, reversing the Order of Circuit Court in and for Seminole County, Florida, and holding section 28.33, Florida Statutes (1977), constitutional. Beckwith v. Webb’s Fabulous Pharmacies, Inc., 374 So.2d 951 (Fla.1979).

On December 9, 1980, the judgment of this Court was reversed with costs by the Supreme Court of the United States. - U.S. -, 101 S.Ct. 446, 66 L.Ed.2d 358. By mandate of that Court, this cause has been remanded to us for further proceedings not inconsistent with the opinion of the Supreme Court.

The portion of section 28.33, Florida Statutes, which the Supreme Court finds constitutionally objectionable is the portion which dictates disposition of the interest earned. This portion, however, cannot be validly severed from the portion of section 28.33 which provides: “Moneys deposited in the registry of the court shall be deposited in interest-bearing certificates at the discretion of the clerk, subject to the above guidelines.” The provision that “[a]ll interest accruing from moneys deposited shall be deemed income of the office of the clerk of the circuit court” is inseparably connected to the portion authorizing the clerk to invest the money. We cannot excise the constitutionally infirm portion of this statute while leaving intact the portion that provides “moneys deposited in the registry of the court shall be deposited in interest-bearing certificates at the discretion of the clerk, subject to the above guidelines,” without doing violence to the legislative purpose of this statute. High Ridge Management Corp. v. State, 354 So.2d 377 (Fla. 1977); Cramp v. Board of Public Instruction of Orange County, 137 So.2d 828 (Fla. 1962). Consequently, we hold that this portion of section 28.33 is also unconstitutional.

We note that without the above-quoted portion of section 28.33, Florida Statutes (1977), and in the absence of a court order, the clerk has no duty, or even discretion, to invest money deposited in the court registry in order to earn interest.

Accordingly, having now reconsidered our judgment in light of the opinion of the Supreme Court of the United States, we affirm the order of the circuit court.

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