author:
PER CURIAM. OVERTON, J., SUNDBERG, Chief Justice and ADKINS, Justice, part.
      BOYD, Justice, ENGLAND, Justice, ALDERMAN, Justice,

text:
    Samuel S. SMITH, Appellant, v. Lew BRANTLEY, President, The Florida Senate; Joe Brown, Secretary of The Florida Senate; Reubin O’D Askew, Governor, and Robert L. Shevin, Attorney General, Appellees.
    No. 54549.
    Supreme Court of Florida.
    June 18, 1981.

      Joseph C. Jacobs and J. Lawrence Johnston of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellant.
    D. Stephen Kahn, Tallahassee, Edward M. Chew, Tampa, and Jim Smith, Atty. Gen., and Martin S. Friedman, Asst. Atty. Gen., Tallahassee, for appellees.
   PER CURIAM.

Pursuant to article V, section 3(b)(1) of the Florida Constitution (1972), Samuel Smith appeals a final declaratory judgment of the Circuit Court of Leon County. The circuit court construed article X, section 3 of the Florida Constitution to require acceptance of a resignation by the governor in order to create a vacancy in office, and declared that a resignation does not occur until it has been accepted. In relevant part, article X, section 3 provides that “[v]acancy in office shall occur upon .. . resignation . . . . ”

We hold that a public officer’s resignation, stated to be effective immediately, is effective upon submission to the proper authority and that the governor’s acceptance is not necessary in order to create a vacancy in office.

The judgment brought to us in this case also finds that The Florida Senate had subject matter jurisdiction to try Samuel Smith for impeachable offenses and that his impeachment conviction was in all respects valid. We hold that The Florida Senate has no jurisdiction to impeach a former officeholder who had effectively relinquished his office prior to the commencement of impeachment proceedings. The determination of the trial court with respect to the validity of Smith’s impeachment conviction, however is affirmed.

I

As a preliminary matter, we note Smith’s contention that section 121.091(5)(g), Florida Statutes (1977) (forfeiture of retirement benefits upon impeachment), is unconstitutional. This issue was raised for the first time in this appeal. Smith did not challenge the constitutionality of this statute in his complaint for declaratory relief. He did initially join the secretary of the Department of Administration and the state retirement director as parties defendant to his declaratory suit. They were dismissed by the trial court, however, based on their assertions (1) that the complaint presented no justiciable controversy with respect to them because there had not been final agency action, (2) that it was uncertain whether final agency action concerning Smith’s application would be unfavorable, and (3) that it was uncertain whether the final result of impeachment proceedings would be unfavorable to Smith. Smith does not challenge the trial court’s dismissal order.

Since the trial court did not pass on the constitutionality of section 121.091(5)(g) and dismissed all parties before him relevant to that issue, this issue is not properly before us for review. See Century Village, Inc. v. Wellington, E, F, K, L, H, J, M, & G, Condominium Association, 361 So.2d 128 (Fla.1978); South Dade Farms, Inc. v. Peters, 107 So.2d 30 (Fla.1958).

II

To understand the matters that are properly before us, we must set out the following undisputed facts.

Samuel Smith became a circuit judge in 1961. He voluntarily suspended himself from the bench in 1977, and was later that year suspended by this Court. In re Inquiry Concerning a Judge, 347 So.2d 1024 (Fla.1977). See also Williams v. Smith, 360 So.2d 417 (Fla.1978). By letter dated January 13, 1978, he attempted to resign his office as circuit judge, effective immediately. Thereafter, by letter dated January 17, 1978, the governor refused to accept the resignation, stating: “I do not accept your resignation due to the nature of the pending criminal cases and the fact that any executive action at this time might preclude the appropriate State response to the outcome of these proceedings.”

On January 31, 1978, the Speaker of the Florida House of Representatives appointed a special committee to consider the impeachment of Smith. On April 12, 1978, the House of Representatives voted articles of impeachment against Smith. On April 17, he filed this lawsuit, requesting that the trial court declare that he had effectively resigned his office in January and was no longer an officer subject to impeachment or, in the alternative, that he was no longer subject to impeachment because he had been removed from office upon conviction of criminal charges in federal court or had retired. He also asked the trial court to declare the impeachment proceeding a nullity-

In May 1978, The Florida Senate convened as a court of impeachment to try Smith, pursuant to article III, section 17(c), Florida Constitution (1972). On May 26, 1978, then Chief Justice Overton, acting as presiding officer for the proceeding, advised the Senate that it had jurisdiction to try Smith, irrespective of whether the governor accepted or rejected his resignation. Fla.S. Jour. 41, 42 (Court of Impeachment 1978). Shortly thereafter, the trial court considering Smith’s lawsuit denied Smith’s motion to declare the impeachment trial a nullity.

On September 15, 1978, the Senate convicted Smith of impeachable offenses, removing him from office and, by additional vote, disqualifying him from future office-holding under article III, section 17(c). Fla. S.Jour. 192 (Court of Impeachment 1978).

Ill

The requirement of gubernatorial acceptance for an effective resignation, as a means of creating a vacancy in office, was considered carefully by the trial court in Smith’s lawsuit. Relying on State ex rel. Gibbs v. Lunsford, 141 Fla. 12, 192 So. 485 (1939), the trial judge ruled that acceptance by the governor is required before a resignation becomes valid to create a vacancy in the office. In Lunsford, Constable Wallace Caswell was suspended in August 1937, and tendered his resignation, effective immediately, to the governor on November 7,1938. On November 8, 1938, a general election was held, and one Grice was elected constable for the remainder of Caswell’s term. On November 9, 1938, the governor accepted Caswell’s resignation. The Court held that the resignation did not become effective until the governor accepted it, saying:

A decision in the case at bar turns on the question of the effective date of the resignation, supra. If the resignation is effective on November 7, 1938, as contended by the respondent Grice, then there was a vacancy in the office of Constable lawfully balloted upon by the voters of the District at the General Election held on November 8, 1938 and the voters thereof as shown by the record declared their preference by giving Grice 81 votes as against 9 for Lunsford, and respondent Grice should be declared the lawful occupant thereof. On the other hand, if the effective date of the resignation, supra, is November 9, 1938, then the office was held by Wallace Caswell on November 8, 1938, the date of the General Election, and no vacancy then existed and the voters of the District were without lawful authority to write on the ballots the names of Grice and Lunsford, because there was not at the time thereof a vacancy in the office of Constable for said district.
The vacancy occurred when the resignation became effective. The resignation became effective (regardless of the contrary statement in the resignation) when it was accepted by the Governor.

141 Fla. at 16-17, 22, 192 So. at 487, 489. Justice Brown dissented on the grounds that, since Caswell had been suspended, the major rationale for requiring acceptance no longer existed. That rationale was that an official could not shirk his official duty and responsibilities merely by resigning.

Inexplicably, the Lunsford opinion did not mention State ex rel. Landis v. Heaton, 132 Fla. 443, 180 So. 766 (1938), which had reached precisely the opposite conclusion on the matter of acceptance. In Heaton, the attorney general brought an action in quo warranto challenging Heaton’s and Brit-ton’s status as members of the Florida Industrial Commission and contesting the validity of their appointments to that commission. Britton answered that he had resigned by tendering his resignation to the governor. The attorney general replied that Britton’s resignation was ineffective because it was not accepted. The Court disagreed:

The fact is that he has exercised the right to resign and, having resigned in due and lawful form and abandoned the office, the office is vacant ....
When Britton resigned and abandoned the office, he did all that he could do, and all that he is required to do, to divest himself of his official character.

132 Fla. at 447, 180 So. at 768.

Both Lunsford and Heaton were decided under the Florida Constitution of 1885. The Lunsford decision noted that “[t]here is no constitutional or statutory provision in Florida fixing the effective date of a resignation, but Section 14 of Article 16 of the Constitution of Florida [1885] provides: ‘All State, County and Municipal officers shall continue in office after the expiration of their official terms until their successors are duly qualified.’ ” 141 Fla. at 17, 192 So. at 487.

Florida’s Constitution still does not define or fix the effective date of a resignation, and the provision for continuance in office has now been removed. The present Constitution, moreover, expressly refers to resignation as a means of creating a vacancy; a provision which had no counterpart in prior constitutions. Art. X, § 3, Fla.Const.

By statute, resignation had long been declared a means of creating a vacancy in office. See, e. g., Ch. 1633, § 1, Laws of Fla. (1868); Ch. II, art. Ill, § 461, Comp. Gen. Laws Ann. (1927); § 114.01(2), Fla. Stat. (1975) (“Every office shall be deemed vacant ... [b]y [the incumbent’s] resignation.”). In 1977, the legislature amended the vacancy-by-resignation statute to state that a vacancy occurs only after the resignation has been accepted by the governor. Ch. 77-235, section 1, Laws of Florida, appearing as section 114.01(l)(d), Florida Statutes (1977). This statute, which became effective June 15, 1977, was in force when Smith’s resignation was tendered.

Smith’s principal argument here is that the new statute requiring gubernatorial acceptance impermissibly places a new condition precedent upon a constitutionally defined event. We agree in large part with this contention.

Whether a public official may unilaterally resign his position is a question which has not only confounded this Court but has divided the authorities nationally. The opposing views may be traced to the difference between the English common law and American concepts of public office. Under English common law, a person elected to public office was obliged to accept it as a burden to bear for the good of the community. In some instances, refusal to serve was a punishable offense. Similarly, the officeholder could not discard his duties at will, and needed the consent of the proper authorities. M. Throop, Public Officers § 409 (1892); F. Mechem, Public Offices and Officers § 414 (1890).

But that was not the view which emerged in this country. The idea that a civil officer in the United States could be compelled against his will to hold office or be liable for refusing to do so “is not in accord with prevailing American ideas of liberty of action.” State ex rel. Ryan v. Murphy, 30 Nev. 409, 424, 97 P. 391, 394 (1908). An early expression of this view is found in United States v. Wright, 28 Fed.Cas. p. 792 (C.C.D. Ohio 1839) (No. 16775), where the issue was whether Wright was liable as surety for acts committed by Fogg, a collector of internal revenue, after Fogg had sent his resignation to the president but before it was accepted. In holding the resignation was complete when received, the court said: “[T]here can be no doubt that a civil officer has a right to resign his office at pleasure, and it is not in the power of the executive to compel him to remain in office.” Id. at 793.

Appellees argue for a required acceptance of a resignation, directing our attention to Edwards v. United States, 103 U.S. 471, 26 L.Ed. 314 (1880), as authority for application of the English common law rule. Edwards, the town supervisor, tendered his resignation to the township board and then refused to levy certain taxes for payment of a judgment entered against the town prior to his letter of resignation. The board took no action on his resignation, and the issue before the Court was whether the resignation was effective, thus leaving Edwards without authority to levy the tax. The Court acknowledged that our country’s different approach to the concept of public office led some states to discard or modify the acceptance requirement. However, Michigan, the place where the action arose in Edwards, still followed the English common law rule. Thus, Edwards’ unaccepted resignation was found not to be effective, and a peremptory writ of mandamus was allowed to stand.

The Edwards court expressed concern with extending the “right to resign” rule announced in Wright to elected officials “whose services are absolutely necessary to carry on local government. . .. ” 103 U.S. at 477 (quoting State ex rel. Reeves v. Ferguson, 31 N.J.L. 107, 123 (1864)). The policy underlying this limitation was twofold: first, public convenience must not suffer from a vacancy in public office; and second, an official may not evade a duty to creditors by resigning his position. People ex rel. McCarthy v. Barrett, 365 Ill. 73, 5 N.E.2d 453 (1936).

In our view, the Edwards decision does not compel the result for which appel-lees argue. Rather, it leaves the states free to choose. We believe that where adequate safeguards exist to protect the public and the rights of creditors, there is absolutely no reason to qualify or limit an official’s right to relinquish public office. More importantly, we believe this “American view” undergirds the “resignation” method of creating an office vacancy which was placed in article X, section 3 of our constitution.

When Smith tendered his resignation on January 13, 1978, he had already been suspended without pay by this Court on recommendation of the Judicial Qualifications Commission. See In re Inquiry Concerning a Judge, 347 So.2d 1024 (Fla.1977); See also art. V, § 12(d), Fla.Const. (1972). Obviously, no rights of creditors were affected by his relinquishment of office. Equally obvious is the fact that any public harm or inconvenience which might flow from the lack of a circuit judge in the third judicial circuit would have occurred at the time of suspension in 1977, and not as a result of Smith’s resignation in 1978.

In all events, however, the Florida Constitution provides a mechanism to eliminate any possible public harm or inconvenience upon the creation of a vacancy in judicial office, even in a resignation situation. The chief justice of this Court is granted the power to assign active and consenting retired judges to temporary duty in any court for which the judge is qualified. Art. V, § 2(b), Fla.Const. (1972). Since the public could not be inconvenienced by a vacancy in the office of circuit judge, no constitutional reason would exist to restrict Smith’s right to resign unconditionally, without executive approval.

Parenthetically, we note that we are not aided by this Court’s decision in Spector v. Glisson, 305 So.2d 777 (Fla.1974), on which Smith would rely for constitutional gloss. That decision held only that an effective resignation creates a present vacancy to be filled by election. There, an incumbent justice’s resignation, effective prospectively, was held to have created a present vacancy in office which could be filled by an election while the resigning justice still held office. Any issue involving acceptance was never reached because “the Governor . .. decided to and did accept the resignation.” Id. at 780. Although the quoted sentence ends “which may not have been controlling in any event,” that language—whatever it may mean—was unnecessary to the issue in the case and is unavailing as precedent.

The American view of the Constitution requires that we examine the 1977 statute purporting to place an acceptance limitation on all resignations. § 114.-01(l)(d), Fla.Stat. (1977). We know, of course, that a statute may adopt one of several possible meanings attributable to a constitutional provision and that, where appropriate, such legislative constructions are to be given great weight in interpreting the provision. Greater Loretta Improvement Association v. State ex rel. Boone, 234 So.2d 665 (Fla.1970). Regrettably, that rule of construction does not appear pertinent here, for the legislature apparently adopted neither of the conflicting decisional precedents in Florida which had construed the word “resignation.” Rather, the statute was purportedly amended simply “to comport [with] the language in ... Art. X, § 3, Fla.Const.” Staff Report to Committee Substitute for S.B. 53 (Feb. 9, 1977). That language, as we have noted, as much as anything else, adopts the American view of resignation which earlier statutes had expressed; namely, that only some extraordinary vacancies by resignation require an acceptance.

Finally, we note Smith’s claim that the statute is an unlawful delegation of legislative power to the governor, in that it lacks sufficient standards to guide the exercise of the delegated authority. If we were to construe article X, section 3, to require acceptance, that suggestion would have to be considered. That constitutional problem dissipates, however, since we have limited the need for an acceptance to situations in which governmental duties will not be performed or the rights of creditors will be adversely affected, neither of which pertains here.

In sum, we hold that article X, section 3, adopts the “American view” of resignations and that the acceptance requirement of section 114.01(l)(d), Florida Statutes (1977), pertains only to those rare, dire situations contemplated by Edwards v. United States, where the public weal is affected adversely by the absence of an officeholder.

IV

Having concluded that Smith’s resignation could be effective without acceptance by the governor under the constitution, we are faced with the knotty question of whether his conviction of impeachable offenses by The Florida Senate is valid. This issue implicates the ability of the legislative branch to initiate impeachment proceedings against persons not holding an enumerated public office.

The undisputed facts in this proceeding, which we have recited earlier, indicate that Smith’s resignation clearly was tendered well before initial steps were taken to launch impeachment proceedings in the Florida House of Representatives. The threshold question which these facts pose is whether one need be in office for impeachment proceedings to be validly initiated; that is, whether the subject matter jurisdiction of the legislative branch depends upon a person being an “officer” under the constitution when the proceedings are commenced. The issue of subject matter jurisdiction for impeachment is properly determined by the judiciary, of course. In re Executive Communication, 14 Fla. 289 (1872). Our conclusion on this question is that one must be such an officer to be impeachable.

Article III, section 17 of the Florida Constitution prescribes the nature and method of impeachment. Subsection (a) initially provides which public officials “shall be liable to impeachment for misdemeanor in office.” Throughout the balance of section 17, the word “officer” is used, apparently, as a shorthand expression for the persons specifically enumerated in subsection (a) as subject to impeachment.

Analysis of the language of the constitution in its present form convinces us that one remains an officer subject to impeachment under section 17 only so long as he occupies a public position. Subsection (b) of section 17 provides that an officer “shall be disqualified from performing any official duties” once he is impeached by the House of Representatives. It obviously contemplates a person who has official duties to perform. Indeed, subsection (b) in its entirety has no utility unless the term “officer” means a person who performs official, public duties. Similarly, subsection (c) states that a judgment of conviction “shall remove the offender from office.”

From the structure of subsections 17(b) and (c) of article III, it can be fairly concluded that the primary and dominant purpose of impeachment in Florida is removal of an officeholder from office. This purpose, of course, is accomplished when an official effectively resigns and thus ceases to be an “officer” subject to impeachment. In fact, it has been suggested that “[ujnder proper circumstances, resignation is a fitting and foreseeable conclusion to impeachment, a coherent part of the process.” Fir-mage & Mangrum, Removal of the President: Resignation and the Procedural Law of Impeachment, 1974 Duke L.J. 1023, 1089.

This conclusion is not derogated by the fact that impeachment may also serve to disqualify an official from future office-holding — a purpose which might be undermined if officials could escape impeachment by resignation. The language of subsection 17(c) on this point however, merely reinforces the notion that this role of impeachment is merely secondary to removal from office.

Subsection (c) states that conviction in an impeachment proceeding entails removal from office “and, in the discretion of the senate, may include disqualification to hold any office of honor, trust or profit.” Disqualification from future of-ficeholding is not, like removal, an automatic consequence of impeachment. Rather, it is a further punishment which may or may not be imposed once the original purpose of the impeachment proceeding is fulfilled. The significance of this arrangement is highlighted by the history of this impeachment provision. Before 1968, both removal and disqualification were automatic upon conviction in an impeachment case. Art. Ill, § 29, Fla.Const. (1885). The Legislative Committee of the 1968 Constitutional Revision Commission drafted the present provision, not only making disqualification discretionary but simultaneously reposing all power over future disqualification in the non-initiating chamber — the Senate. It follows, we think, that impeachment under article III, section 17 of the Florida Constitution is not available simply to disqualify a person from future officeholding, and that therefore one who has been but is no longer an enumerated public official, being non-removable, is not subject to impeachment.

There is, of course, no evidence in this proceeding that either the Florida House of Representatives or The Florida Senate endeavored to impeach Smith simply to disqualify him from future officeholding. Indeed, the contrary appears, for promptly after the House voted articles of impeachment, and well before the Senate convened to consider the matter, Smith’s attorney advised the president of the Senate that his client would waive forever his right to hold or seek public office. The Senate proceeded nonetheless, but only after being advised that Smith was still an “officer” because his resignation had not been accepted.

Several authorities are cited by counsel to suggest that public officials historically have not been permitted to avoid the consequences of impeachment by resigning from office. Our research indicates, however, that every one of those precedents involves a resignation which occurred after the legislative branch had exercised initial jurisdiction over the offending public officeholder, so that he was in fact an officer when subject matter jurisdiction attached.

Secretary of War William Belknap was impeached by the United States House of Representatives and tried by the Senate after he had resigned, but his resignation followed the commencement of proceedings in the House. 4 Cong.Rec. 343-54, 1426-33 (1876). United States Senator William Blount resigned after he was impeached by the House, and before the Senate subsequently tried him. 2 Annals of Cong. 2244— 2415 (1798). Texas Governor James Ferguson was impeached by the Texas Senate, but his resignation was submitted after the House had preferred articles of impeachment and after the Senate had launched its trial. Ferguson v. Maddox, 114 Tex. 85, 263 S.W. 888 (1924).

These precedents do not suggest, of course, that a senate trial must be held after a valid resignation. The United States Senate decided not to proceed against United States District Judge George English after his resignation, even though the House of Representatives had preferred articles of impeachment. 68 Cong.Rec. 297-302 (1926). The Florida Senate terminated its proceeding on articles of impeachment against Insurance Commissioner Thomas D. O’Malley upon his resignation. Fla.S.Jour. 15-16 (Org.Sess.— Court of Impeachment 1975). The Florida Senate likewise declined to proceed after it had received the resignation of Circuit Judge James Magbee. Fla.S.Jour. 55 — 57 (Reg.Sess. 1871).

We have not been directed to any authority, in Florida or elsewhere, which states that, notwithstanding a resignation before House proceedings, the legislature has subject matter jurisdiction to impeach the resigned official. Given our constitution’s removal-oriented theme and a complete absence of judicial authority approving impeachment of a non-officer, we reject any suggestion that a former officeholder is impeachable. We are not called upon here to determine the point at which legislative impeachment proceedings are commenced, and we decline to do so. Nor are we called upon to declaré whether or under what circumstances an effective resignation in the course of a duly commenced impeachment proceeding will act to terminate or suspend those proceedings, if any. We hold, simply, based on the precise language of article III, section 17 of the Florida constitution, that impeachment proceedings in Florida may not be commenced against a former officeholder who has effectively relinquished his public office by resignation. Any endeavor to launch such a proceeding against a non-officeholder is ineffective and void, based on the legislature’s lack of subject matter jurisdiction over the individual involved.

V

For the reasons expressed above, we reverse the judgment of the trial court insofar as it construes article X, section 3 of the Florida Constitution to require, in all cases, the governor’s acceptance of a public officeholder’s resignation in order to create a vacancy in office. Further, we construe article III, section 17(a) of the Florida Constitution to mean that the legislative branch has no jurisdiction to initiate impeachment proceedings against a person who is not at that time holding one of the enumerated public offices.

Nonetheless, for the reasons separately expressed by a majority of the justices below, we hold that the Florida Senate had jurisdiction to try Smith for impeachable offenses, and that his conviction served to remove him from office and, by separate vote, to disqualify him from holding any office of honor or trust or profit in the State of Florida.

It is so ordered.

SUNDBERG, C.J., and ADKINS, J., concur in part and dissent in part with an opinion.

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

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

ALDERMAN, J., concurs in part and dissents in part with an opinion in which MCDONALD, J., and TILLMAN PEARSON (Ret.), Associate Justice, join.

OVERTON, J.,

recused himself and did not participate in this decision because, while presiding as Chief Justice in appellant’s impeachment proceeding, he rendered an advisory opinion on an issue in this case to the Florida Senate.

SUNDBERG, Chief Justice and ADKINS, Justice,

concurring in part and dissenting in

part.

We fully concur in parts III and IV of the opinion of the Court. It follows from that analysis, and from the fact that House proceedings were commenced against Smith only after his unconditional resignation was tendered to the appropriate governmental official, that Samuel Smith’s impeachment by The Florida Senate was a nullity. The order of the trial court to the contrary should be reversed.

BOYD, Justice,

concurring in part and dissenting in part.

I concur in the result announced in part III of the opinion of the Court, that appellant’s resignation was effective when submitted and that he therefore ceased to be a circuit judge at that time. I reach this conclusion by a much shorter route than that detailed in the opinion of the Court. Under article X, section 3, Florida Constitution, a vacancy in office is created by the resignation of the officer. Thus the constitution adopts the “American rule” on the question of whether a resignation must be accepted to be effective.

The opinion in United States v. Wright, 28 Fed.Cas. p. 792 (C.C.D. Ohio 1839) (No. 16775), cited in the opinion of the Court, articulated the “American rule.” “[A] civil officer has a right to resign his office at pleasure, and it is not in the power of the executive to compel him to remain in office.” Id. at 793. In Edwards v. United States, 103 U.S. 471, 26 L.Ed. 314 (1880), as the opinion of the Court points out, the “English rule” was applied because of concern over extending the free right to resign to officials whose services were necessary to the continued operation of local government. By holding that Florida’s constitutional adoption of the “American rule” will be honored except in “those rare, dire situations ... where the public weal is affected adversely by the absence of an officeholder,” opinion of the Court at 449, the Court today actually adopts a hybrid American-English rule. And, despite extended discussion of the problem, the Court offers no enlightenment about what circumstances will prompt it in the future to apply the “public necessity” or “English” rule. Thus there is uncertainty in the law about when resignations will be effective. Questions will arise concerning the binding effect of actions taken by officers who have tendered resignations but which have not been accepted. I would declare that all unconditional resignations are effective when submitted.

I also concur with part IV of the opinion of the Court, holding that under article III, section 17(a), Florida Constitution, the legislature had no power to commence impeachment proceedings against appellant, since he was not an “officer” within the meaning of the word as used in that provision. I would state this conclusion somewhat differently, however. Rather than saying that “it can be fairly concluded that the primary and dominant purpose of impeachment in Florida is removal of an officeholder,” opinion of the Court at 449, I would say that such is the only fair conclusion. That the constitution gives the Senate discretion to impose an additional penalty on one convicted in an impeachment trial does not weaken my belief on this point. The clear language of section 17(a) controls: “The house of representatives by two-thirds vote shall have the power to impeach an officer.” Appellant was not an officer and therefore could not be impeached. I reach this conclusion in much shorter order than does the opinion of the Court.

For these reasons I agree with the conclusion reached by Chief Justice Sundberg and Justice Adkins that the impeachment proceeding was a nullity and the judgment of the court below must be reversed. I disagree with the conclusion reached by Justice England that the holding of the Court should be given prospective effect only. Justice England points out that prospective-only application of a decision is appropriate when retrospective application would impose hardship on persons who reasonably relied upon a clear state of the law, and whose expectations would be unfairly upset by application to them of a new rule of law. The opinion of the Court, however, does not overrule any precedents or announce any new principles of law. The existing precedents on the question of whether resignation is effective without acceptance were very few and were in conflict. Furthermore, the question had been resolved by the adoption of a new constitutional provision that directly controlled. Art. X, § 3, Fla.Const. (1968). (“Vacancy in office shall occur upon .. . resignation ....”)

As I read the opinion of the Court, its holdings on the issues of when a resignation is effective and on what persons are subject to being impeached are based upon a plain reading of the constitution as revised in 1968. The advice given in good faith to the governor and legislature in connection with this impeachment proceeding was not based on any firm, coherent pronouncements of Florida courts construing the 1968 constitution. By Justice England’s joining with the others voting to affirm, it is ensured that Smith, and Smith alone, will suffer the burdens of impeachment based upon a proceeding which the majority today holds cannot in the future be conducted against one similarly situated. The result of today’s decision therefore denies Smith equal protection of the law under the United States and Florida Constitutions.

I dissent from the ultimate holding of the Court. I would reverse.

ENGLAND, Justice,

concurring in part and dissenting in part.

I fully concur in parts III and IV of the opinion of the Court. It does not follow, necessarily, that Smith’s impeachment by The Florida Senate is invalid.

We are constitutionally permitted, in the exercise of our judicial prerogative, to determine whether any newly announced rule of law should be applied retroactively, or on a prospective basis only so as not to be available to the person who has raised the issue. See Great Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932); Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973).

In Sunburst the Supreme Court was asked whether, consistent with the federal constitution, a state court could overrule precedent and yet not apply the rule to the case under consideration. In holding that a state may indeed apply its decisions only prospectively, Mr. Justice Cardozo succinctly stated the doctrine.

A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law nonetheless for intermediate transactions. ... The choice for any state may be determined by the juristic philosophy of the judges of her courts, their conceptions of law, its origin and nature.

Id., 287 U.S. at 364-65, 53 S.Ct. at 148-149.

This Court has exercised its Sunburst prerogative on numerous occasions. See, e. g., Deltona Corp. v. Bailey, 336 So.2d 1163 (Fla.1976), amplifying Interlachen Lakes Estates, Inc. v. Snyder, 304 So.2d 433 (Fla.1973) (prospective invalidation of tax statute, based on reliance and assumption of validity); State v. White, 194 So.2d 601 (Fla.1967) (prospective validity of criminal statute based on previously declared state of law).

It is appropriate to consider an exclusively prospective application of our determination regarding public officials’ resignations because of the contrary state of the law at the time the subject impeachment proceedings were commenced, see State v. White, and because there was substantial reliance on that state of the law preliminary to and throughout these proceedings, see Interlachen Lakes Estates, Inc. v. Snyder. These two factors have been regarded as the dominant touchstones for determining pure pro-spectivity — that is, non-application of a new rule in the announcing case. See, e. g., Traynor, Quo Vadis, Prospective Overruling: A Question of Judicial Responsibility, 28 Hastings L.J. 533 (1976).

A court usually will not overrule a precedent .. . when the hardship caused by a retroactive change would not be offset by its benefits. The technique of prospective overruling enables courts to solve this dilemma by changing bad law without upsetting the reasonable expectations of those who relied on it.

Id. at 541-42.

As noted earlier, when impeachment proceedings were launched by the House, precedents from this Court with respect to the requirement of-a gubernatorial accept-anee were in conflict. The first decision of this Court on the subject, Heaton, did not require that a resignation be accepted by the governor in order to be effective. Barely a year later, in Lunsford, the Court held that the governor must accept a resignation in order for it to be effective. In evaluating judicial precedents, it is generally assumed a later decision by the same court on the same issue impliedly overrules a prior decision. Asher v. Texas, 128 U.S. 129, 9 S.Ct. 1, 32 L.Ed. 268 (1888); 20 Am. Jur.2d Courts § 232 (1965). Consequently, it was reasonable after 1939 for interested persons to assume that Lunsford overruled Heaton, and that the governor’s acceptance was required in order for a resignation to be effective.

In fact, numerous public officials had relied on Lunsford as the state of the law. The attorney general had in prior years opined that Lunsford required the governor’s acceptance of a resignation. See, e. g., 1977 Op. Att’y Gen. Fla. 077-9 (Feb. 3, 1977); 1974 Op. Att’y Gen. Fla. 074-175 (June 20, 1974). The governor was advised and believed that an acceptance was essential to vacate Smith’s judicial position. The Florida House of Representatives was advised and believed that Smith was an officeholder at the time impeachment proceedings were commenced. The chief justice of this Court, as presiding officer of the impeachment court, advised the Senate that it had the authority and subject matter jurisdiction to try Smith for impeachable offenses and thereby, if convicted, to remove him from office.

“Reliance plays its heaviest role . . . where lawyers advise clients extensively in their planning on the basis of existing precedent.” Traynor, supra at 543.

Indeed, Smith himself did not put the issue before the judiciary until after the House had voted articles of impeachment, and the trial judge made his determination that an acceptance was necessary only after the chief justice had expressed his view to the Senate.

In Ciravolo v. The Florida Bar, 361 So.2d 121 (Fla.1978); we faced a situation very much like the one now before us, involving both contradictory precedents and attorney reliance. We there noted that the attorney’s action in that case “was predicated on a justifiable interpretation of this court’s strong language in [a prior court decision], and the court’s imperfect handling of precedents .... This court supplied the material that misled.” Id. at 124. We refused to subvert that justifiable reliance, although we prospectively rejected the applicability of the case law on which that reliance was founded.

As in Ciravolo, state officials here acted reasonably in reliance on an imprecise state of law which we created. I believe, therefore, the Senate’s exercise of subject matter jurisdiction over Smith was proper, and that our pronouncement today overruling Lunsford, and holding that a resignation is effective without the governor’s approval, should be applied prospectively, to future officeholders only.

I would hold that The Florida Senate had jurisdiction to try Smith for impeachable offenses, and that his conviction served to remove him from office and, by separate vote, to disqualify him from holding any office of honor or trust or profit in the State of Florida.

ALDERMAN, Justice,

concurring in part, dissenting in part.

I concur with that part of the Court’s opinion holding that a public officer’s resignation, stated to be effective immediately, is effective upon submission to the proper authority and that acceptance, except in very special circumstances, is not necessary in order to create a vacancy in office.

I dissent, however, from that part of the Court’s opinion holding that the Florida Senate has no jurisdiction to impeach a former officeholder who has effectively relinquished his office prior to the commencement of impeachment proceedings. This holding unduly limits the provision of article III, section 17(c), Florida Constitution, that “judgment of conviction in cases of impeachment ... in the discretion of the senate, may include disqualification to hold any office of honor, trust or profit.” It is a fundamental rule of construction that courts should not construe a constitutional provision in such a manner as would render any portion thereof superfluous, meaningless, or inoperative. Burnsed v. Seaboard Coastline Railroad Co., 290 So.2d 13 (Fla.1974). The constitution should be construed so that every clause and every part thereof has meaning. To say that the Senate’s discretion to disqualify an officer from holding office in the future is extinguished upon resignation of the officer is to render this portion of article III, section 17(c) inoperative.

The constitutional and statutory consequences of a conviction for impeachable offenses are not limited to removal from office, and an officer subject to impeachment may not escape these additional consequences by simply resigning. The power to disqualify from future public service an officer who has violated his position of public trust and honor is constitutionally as important as the power to remove from public office. Thus, the jurisdiction of the House to impeach and the Senate to try and to convict and to decide whether the consequence of disqualification should be imposed may not be eliminated by the officer’s resignation prior to commencement of impeachment proceedings. Despite a resignation prior to impeachment, the Senate has the jurisdiction to decide for the public’s benefit whether an officer who has violated his oath of office and his duty as a citizen should again be permitted to be placed in a public position of trust or hon- or.

The majority holding will allow officers who secretly commit serious breaches of the public trust, “misdemeanors in office,” which amount to impeachable offenses and which clearly should disqualify those officers from holding any office of trust or honor, to escape impeachment and disqualification if they resign or if their terms of office expire before their misdeeds are discovered and impeachment proceedings are begun. This surely was not intended by the framers of our constitution when they gave the Senate the authority to disqualify from holding public office persons who have abused the public trust by committing impeachable offenses while they were public officers.

Our founding fathers contemplated that a person convicted of an impeachable offense be sentenced to “a perpetual ostracism from the esteem and confidence, and honours and emoluments of his country.” The Federalist No. 65 (A. Hamilton), reprinted in 43 Great Books of the Western World 198, 199 (R. Hutchins ed. 1952). Impeachment is more than the mere process of removing a corrupt official from office. It is a vindication for society of injuries caused by corrupt public officials. Karl and Davis, Impeachment in Florida, 6 Fla.St.U. L.Rev. 2, 57 (1978).

Accordingly, I would hold that even though a public official has resigned prior to commencement of impeachment proceedings, the Senate has jurisdiction to try him and to convict him for impeachable offenses and that Smith, having been convicted of impeachable offenses and having been expressly disqualified, is forever barred from holding public office in Florida.

McDonald, J., and TILLMAN PEARSON (Ret.), Associate Justice, concur.

      . By letter dated April 13, 1978, Smith’s attorney advised the president of the Senate that his client would waive forever the right to hold or seek any public office. This proposed “waiver” should not affect our decision. Just as a public officer may not divest the legislature of its constitutionally granted impeachment jurisdiction by resignation, neither may that officer avoid impeachment by coupling his resignation with a promise to never again seek public office.


source: Caselaw Access Project

author: ADKINS, Justice.

license: Public Domain

text:
    The STATE of Florida, Petitioner, v. George WOODS, Respondent.
    No. 57791.
    Supreme Court of Florida.
    June 18, 1981.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., Miami, for petitioner.
    John H. Lipinski, North Miami, for respondent.
   ADKINS, Justice.

By petition for certiorari, we have for review a decision of the Third District Court of Appeal reported at 374 So.2d 47, which allegedly conflicts with prior decisions of this Court and those from the same district, and which arguably directly and exclusively affects the duties and powers of a class of constitutional or state officers; namely, the circuit court judges. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

The issue presented in this case is one of proper jurisdiction and arises from the abolition of the Dade County Metropolitan Court in 1977. Prior to its deletion from the Dade County Charter, the Metropolitan Court, on November 22,1967, found respondent, George Woods, guilty of the charge of vagrancy. Respondent, an unmarried minor at the time, was not fined, and entry of sentence was suspended.

On August 1, 1978, respondent filed a petition in the Eleventh Judicial Circuit, in and for Dade County, requesting the circuit court to issue a writ of error coram nobis vacating his conviction. His petition alleged that it was brought as an original action pursuant to the circuit court’s “All Writs” jurisdiction as provided for in article V, section 5, of the Florida Constitution. The circuit court entered its order summarily denying the petition on August 10, 1978.

Respondent subsequently filed a timely appeal in the Third District Court of Appeal alleging, inter alia, that his conviction was invalid because the record did not establish that notice, pursuant to section 932.38 (present section 925.07), Florida Statutes (1969), was sent to the parents or guardian of the respondent. The third district agreed, holding respondent’s allegation to present a question which should have been determined by the trial court after a hearing. Accordingly, the district court reversed the order of the circuit court denying respondent’s petition for a writ of error coram nobis and remanded the cause to the circuit court.

Petitioner filed a motion for rehearing, contending that the appellate court lacked jurisdiction to order the circuit court to hold a hearing in this case, inasmuch as the circuit court lacked original jurisdiction to consider respondent’s petition for writ of error coram nobis. The third district denied the motion for rehearing on September 10, 1979. Subsequently petitioner filed a motion to stay the proceedings pending review, while, at the same time, filing his notice invoking the certiorari jurisdiction of this Court. The motion to stay was also denied by the district court but we accepted jurisdiction.

The writ of error coram nobis was first available at common law and later made applicable in this state to both civil and criminal cases, in the same court in which the judgment was entered. Russ v. State, 95 So.2d 594, 597 (Fla.1957); House v. State, 130 Fla. 400, 177 So. 705, 706 (1938); Leavitt v. State, 116 Fla. 738, 156 So. 904, 905 (1934); Lamb v. State, 91 Fla. 396, 107 So. 535, 537 (1926); State v. Stettin, 364 So.2d 95, 96 (Fla. 3d DCA 1978). The function of the writ was to correct errors of fact, not errors of law; and the general rule repeatedly employed by this Court to establish the sufficiency of an application for a writ of error coram nobis is that the alleged facts must be of such a vital nature that had they been known to the trial court, they conclusively would have prevented the entry of the judgment. Hallman v. State, 371 So.2d 482, 485 (Fla.1979). Although writs of error coram nobis have now been abolished in civil cases by Florida Rule of Civil Procedure 1.540(b), this remedy remains viable in criminal cases. Id.

When a judgment has been affirmed by an appellate court, the original trial court does not have jurisdiction to entertain a petition for writ of error coram nobis until permission to seek such relief has first been obtained from the appellate court. Id. at 484. However, where no appeal of the judgment has been sought, as in the case at bar, the petition must be made to the original trial court. Durley v. Mayo, 160 Fla. 922, 37 So.2d 320 (1948); Skipper v. State, 128 Fla. 362, 174 So. 863 (1937); State v. Stettin, 364 So.2d 95 (Fla. 3d DCA 1978).

Petitioner argues that the original trial court in this case, the only court having jurisdiction to entertain respondent’s petition, was the Metropolitan Court. However, since the Metropolitan Court was abolished, petitioner submits that the county court, not the circuit court, is vested with the jurisdiction previously exercised by the Metropolitan Court; and it is to the county court that respondent should have brought his petition. We agree.

When a court is abolished, as in the case at bar, article V, section 20, of the Florida Constitution, provides in subsection (d)(1) that “[a]ll records of and property held by courts abolished hereby shall be transferred to the proper office of the appropriate court under this article” but, relevant to the issue presented herein, subsection (c)(4) of article V, section 20, dictates, “[t]he county courts shall have jurisdiction now exercised by . . . municipal courts and courts of chartered counties, including but not limited to the counties referred to in article VIII, sections 9, 10, 11, and 24 of the Constitution of 1885.” Pursuant to that mandate, section 34.01, Florida Statutes (1979), styled “Jurisdiction of county court,” expressly so provides in subsection (2).

From the above cited constitutional and statutory provisions, the county court is vested with the jurisdiction previously exercised by the Metropolitan Court of Dade County. Further, the county court has the power to issue a writ of error coram nobis by virtue of its criminal jurisdiction, article V, section 7, Florida Constitution (1976), and pursuant to section 900.03, Florida Statutes (1979).

Inasmuch as the circuit court lacked jurisdiction to entertain respondent’s petition for writ of error coram nobis, the appellate court did not have the authority to reverse the decision of the circuit court and to order a hearing therein. City of Stuart v. Green, 156 Fla. 551, 23 So.2d 831 (1945); State v. Stettin, 364 So.2d 95 (Fla. 3d DCA 1978); In re Coleman’s Estate, 103 So.2d 237 (Fla. 2d DCA 1958).

Accordingly the decision of the district court is quashed and the cause is remanded to that court with instructions to reinstate and affirm the judgment of the circuit court.

It is so ordered.

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


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. David Martin BAUER, Appellee.
    No. 58417.
    Supreme Court of Florida.
    June 18, 1981.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., Miami, and Janet Reno, State Atty., and Arthur Joel Berger, Asst. State Atty., Miami, for appellant.
    Michael S. Hacker of Hacker & Matters, Miami, for appellee.
   PER CURIAM.

The order of the Circuit Court of the Eleventh Judicial Circuit granting appel-lee’s motion to dismiss and declaring section 893.135, Florida Statutes (1979), unconstitutional is reversed, and the cause remanded for further proceedings not inconsistent with State v. Benitez, 395 So.2d 514 (Fla.1981).

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. ALFORD, Robert B., Respondent.
    No. 59090.
    Supreme Court of Florida.
    June 25, 1981.

      John A. Boggs, Asst. Staff Counsel, Tallahassee, David G. McGunegle, Bar Counsel and Branch Staff Counsel, Orlando, and P. Thomas Boroughs, Vice Chairman, 9th Judicial Circuit Grievance Committee “A”, Orlando, for complainant.
    No appearance for respondent.
   PER CURIAM.

The referee’s report and record in this disciplinary proceeding have been filed with this Court pursuant to Florida Bar Integration Rule, article XI, Rule 11.06(9)(b). We have jurisdiction. Art. V, § 15, Fla.Const.

The complaint of the bar contained the following allegations:

1. Respondent, Robert A. Alford, is, and at all times hereinafter mentioned was, a member of The Florida Bar, subject to the jurisdiction and Disciplinary Rules of the Supreme Court of Florida.
2. On or about September 11, 1979, respondent was retained by Mr. and Mrs. Ronald E. Ditslear to represent the husband in a noncontested change of custody involving Mr. Ditslear’s minor child, Scott A. Ditslear.
3. Respondent was paid $50 at that time on a total fee of $100. The remaining $50 was payable at the conclusion of the case.
4. Respondent was furnished with his client’s correct address as well as the Ohio address of the Mother who had legal custody.
5. On or about October 15, 1979, one of his clients attempted to contact respondent by phone regarding the status of their matter. He returned the call at the end of October, indicating he had been out of town and had not heard from the child’s Mother with respect to the consent papers. He also indicated he had not forwarded the papers by registered mail.
6. The clients next telephoned respondent’s office during the week prior to Thanksgiving, having not heard from him in the interim. He returned their call before Thanksgiving indicating still no progress and related some personal problems involving pet dogs. During this conversation, Mr. Ditslear requested a refund so they could retain other counsel. Respondent promised that he would refund their money by check that very afternoon.
7. After another three weeks passed without result, the clients again called respondent’s office. He returned their call sometime later but before Christmas to say that he had again been out of town and had sent their money to the wrong address. He indicated he had sent it to 240 Oxford Road, Apt. 1800, whereas the correct address was 240 Oxford Road, Apt. 18-A, in Fern Park, Florida.
8. Mr. Ditslear next made an appointment to meet with respondent on or about January 7, at 5:00 P.M. Respondent failed to keep this appointment scheduled to be at his office.
9. After Mr. and Mrs. Ditslear complained to The Florida Bar, a hearing was scheduled by Grievance Committee 9-A for February 20, 1980, which was can-celled at the request of respondent due to personal injury problems.
10. A probable cause hearing was held on March 19, 1980, which respondent also failed to attend notwithstanding both notice by personal service and subpoena on or about March 11, 1980. Respondent did, however, attempt to contact the Chairman and investigating member of the Committee and others with respect to gaining another continuance.
11. Mr. and Mrs. Ditslear finally retained other counsel for a similar $100 fee. No problems were encountered in contacting the Mother, gaining her consent, or setting an early hearing. However, as of early April, 1980, the case was withdrawn at the request of the Father since the child elected to return to its Mother.
12. During the six months when respondent had this matter the minor child was enrolled in a private school which was reluctant to keep him due to the Mother having permanent legal custody and was pressuring Mr. and Mrs. Ditslear to remove the boy or show proper custody. Mr. and Mrs. Ditslear made respondent aware of this problem at the outset and throughout this period of time.
13. By reason of the foregoing respondent has violated Disciplinary Rules 6-101(A)(3) and 7-101(A)(2) of The Florida Bar’s Code of Professional Responsibility.

The referee found that the respondent knew or should have known that where one parent has custody of a child and has agreed to a change in custody, prompt action should be taken on behalf of his client. The referee also found that the respondent did neglect a legal matter entrusted to him in violation of Disciplinary Rule 6-101(A)(3) and that he failed to carry out a contract of employment in a timely manner as required by the circumstances of his client, in violation of Disciplinary Rule 7-101(A)(2).

The referee recommended that respondent be found guilty of violating Disciplinary Rule 6-101(A)(3) and Disciplinary Rule 7-101(A)(2). The disciplinary measures recommended by the referee are that respondent receive a public reprimand and that he be placed on probation for a period of eighteen months. The terms of probation recommended by the referee are that respondent refund to his client the remaining ten dollars of the fifty-dollar fee already paid, and that respondent submit employment reports, at least quarterly, to the Clerk of the Supreme Court and to staff counsel of The Florida Bar. These reports should indicate the status of all matters entrusted to respondent for legal services, and should demonstrate that he is handling such matters properly.

We adopt the findings and recommendations of the referee except the recommendation concerning the employment status reports. We order that respondent be publicly reprimanded and that he be placed on probation for eighteen months. The condition of respondent’s probation is that he refund to his client the remaining ten dollars of the legal fee.

Costs in the amount of $369.52, shall be charged to respondent.

It is so ordered.

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


author: ORFINGER, Judge.

text:
    Everett W. RICE, Appellant, v. STATE of Florida, Appellee.
    No. 80-776.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 1980.
    Everett W. Rice, pro se.
    Jim Smith, Atty. Gen., Tallahassee and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

Appellant’s pro se motion under Rule 3.850, Florida Rules of Criminal Procedure, alleges that his plea of guilty in the trial court was involuntarily given. He alleges the plea resulted from a bargain with the State that in return for his plea, he would receive a sentence of thirty to sixty days in prison. Instead, he alleges, he was sentenced to fifteen years, and was not permitted to withdraw his plea.

The trial court summarily denied the motion without an evidentiary hearing and without attaching to the order those portions of the record which conclusively show that petitioner is entitled to no relief. Rule 3.850, Fla.R.Crim.P.

The allegation that the sentence violated the plea bargain and was thus so involuntary as to require the court to permit petitioner to withdraw his plea is facially sufficient. Brown v. State, 245 So.2d 41 (Fla.1971); Davy v. State, 356 So.2d 18 (Fla. 4th DCA 1978). Since the record before us does not conclusively show that appellant is entitled to no relief, we are compelled to reverse the order and remand the cause so that the trial judge may either attach to the order those portions of the record which conclusively show that appellant is entitled to no relief, or grant an evidentiary hearing. Gunter v. State, 380 So.2d 1198 (Fla. 5th DCA 1980); Payne v. State, 362 So.2d 688 (Fla. 2d DCA 1978).

The State says petitioner’s prior attempt to gain a reduction in sentence under Rule 3.800, Florida Rules of Criminal Procedure, should preclude him from now seeking relief under Rule 3.850. We have been furnished with a copy of the motion and of the order denying the reduction of sentence. A review of the motion clearly indicates that it only requested mitigation and was not based on any claim of illegality. As such, it was addressed to the court’s discretion and should not serve to estop petitioner from filing a motion under Rule 3.850.

REVERSED and REMANDED for further proceedings consistent herewith.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.


text:
    Douglas Anthony HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 79-1361/T4-612.
    District Court of Appeal of Florida, Fifth District.
    Jan. 14, 1981.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief, Appellate Division, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

Appellant pleaded nolo contendere to a charge of armed robbery specifically reserving the right to appeal the denial of his motion to suppress physical evidence found as the result of an alleged illegal search, and the denial of his supplemental motion to suppress an out-of-court identification which appellant says was the fruit of the illegal search. The trial court found that appellant had been illegally stopped, but that he had consented to the search, hence the search and the on-the-spot identification of appellant were lawful.

Only a dispositive motion may be reserved for appeal following a nolo plea. Brown v. State, 376 So.2d 382 (Fla.1979). Even if appellant is correct in his position that the physical evidence and the out of court identification should both have been suppressed in this case, this determination may not be dispositive because the defendant did not address nor did the trial court rule on the issue of an in-court identification of appellant by the robbery victims. See United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980), where the United States Supreme Court held that an illegal arrest would not necessarily preclude an in-court identification of the accused by the victim because the victim’s independent recollection of the identity of the accused was arrived at when the crime was committed, which was prior in time to the illegal police activity and thus not its product.

We therefore relinquish jurisdiction to the trial court for a period of sixty (60) days with directions to hold such hearings and to take such testimony as the trial court deems necessary and to determine by written order with appropriate findings, which shall then be certified to this court, whether the motion and supplemental motion to suppress are dispositive of the issues in this case.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.

      . Cf. Roberts v. State, 390 So.2d 769 (Fla. 3d DCA 1980), where the court held that the suppression of the physical evidence, the out of court and the in-court identification would have left the State with no evidence, so the motion to suppress was dispositive.


author: PER CURIAM. GLICKSTEIN, Judge.

text:
    Jules J. COHEN, Appellant/Cross-Appellee, v. Rosalyn L. COHEN, Appellee/Cross-Appellant.
    No. 79-536.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 1981.
    On Rehearing July 1, 1981.

      William John Mason and John C. Maine, Jr., Mason & Meyerson, P.A., Miami, for appellant/eross-appellee.
    Robert Urich, Urich & Shenkman, P.A., Miami, for appellee/cross-appellant.
   PER CURIAM.

The parties were divorced in New Jersey in 1975. The terms of the judgment required the ex-husband to pay a total of $900 per month to the ex-wife, $750 for the support of the parties’ three children and $150 for alimony, in addition to certain health care costs and insurance premiums incurred on behalf of the children. Following the divorce, the ex-husband was chronically in arrears in his support payments. As a result the ex-wife obtained four judgments against him, totalling more than $14,000. To satisfy the judgments, he relinquished his interest in the parties’ home.

The ex-husband moved to Florida and began to incur the same arrearages in support and alimony which he had previously experienced, paying only $450 per month toward his obligations. He opened an office for the practice of osteopathic medicine, married his office manager, moved into her home which was also occupied by her three children and began to contribute about $500 per month toward household expenses.

In May, 1978, the ex-wife filed a petition to increase child support and alimony. She alleged that from 1972 to 1975, her ex-husband religiously had paid $350 per week in support, but in 1975 the New Jersey court ordered him to pay only $900 per month at a time when he had closed his medical practice, had accepted a part time medical position in Florida which paid him $16,000 per year and had planned to open a practice in Florida.

The ex-husband’s income tax returns for 1976 and 1977 showed a gross income from his practice of $47,605 and $81,326, respectively, and net profits of $14,515 and $26,-462, respectively. The latter return reflected salary paid to his present wife, who was the office manager and medical technician, of $15,455. He contended that his present wife did the work of two employees and that it would cost $400 per week to replace her.

The ex-wife testified at the January, 1979, hearing that she was a full time law student on scholarship and without any income; that the children had medical and dental needs that she could not afford to remedy; that two of the children were attending private school by virtue of special dispensation given by the school in light of her financial need; and that she and the children required $2,500 per month for their living expenses.

Based on the foregoing the trial court increased the child support $100 per month per child and denied any increase in alimony. We believe it was within the trial court’s discretion to do so, since it could properly have found that there was a substantial change in circumstances from the time of the original award in New Jersey and the date of the hearing in the Florida trial court. See Petersen v. Petersen, 392 So.2d 298 (Fla. 4th DCA 1980).

The other issues raised by the ex-husband are the reopening of the hearing by the trial court to consider the issue of attorney’s fees and the award of $3,197.50 to the ex-wife’s attorney notwithstanding the absence of any testimony from her attorney. However, the parties and another attorney who had examined the office file of the ex-wife’s attorney testified as to the amount of attorney’s fee. Therefore, we find these arguments are without merit.

Accordingly, the order of the trial court is affirmed.

AFFIRMED.

DOWNEY, GLICKSTEIN and HURLEY, JJ., concur.

ON REHEARING

GLICKSTEIN, Judge.

Appellant raises three points in his petition for rehearing, one of which is meritorious.

At the hearing on attorney’s fees appel-lee’s attorney did not testify and stated incorrectly that it would not be proper for him to do so. Appellant’s attorney timely objected to any award for attorney’s fees in the absence of testimony from appellee’s attorney, notwithstanding that an expert witness had testified as to the value of the attorney’s services.

We have previously held that an award for attorney’s fees requires substantial competent evidence. Leader Mortgage Co. v. Rickards Electric Service, Inc., 348 So.2d 1202, 1205 (Fla. 4th DCA 1977); Benitez v. Benitez, 337 So.2d 408 (Fla. 4th DCA 1976). Implicit in this is the requirement that the value of services be proven by expert witnesses. Tanner v. Tanner, 391 So.2d 305 (Fla. 4th DCA 1980); Lyle v. Lyle, 167 So.2d 256 (Fla. 2d DCA 1964).

We have not previously addressed the question of the necessity of the subject party’s attorney testifying as to his services although Lyle v. Lyle, supra, expressly recognizes such to be the practice. See also Nivens v. Nivens, 312 So.2d 201 (Fla. 2d DCA 1975). Appellee points out that in Fatolitis v. Fatolitis, 271 So.2d 227 (Fla. 2d DCA 1973), the expert was apparently the only witness who testified as to attorney’s fees.

Upon reflection, in view of appellant’s objection, we hold that the testimony of appellee’s attorney should have been required by the trial court. Accordingly, on petition for rehearing we adhere to our previous decision except on the question of the award of attorney’s fees. As to such award we grant rehearing and reverse and remand to the trial court for the purpose of a further hearing in accordance with this opinion.

DOWNEY and HURLEY, JJ., concur.

      . At the hearing on attorney’s fees the ex-husband testified that his 1978 gross income was about the same as 1977.


author: PER CURIAM. DAUKSCH, Chief Judge.

text:
    Edward Earl MEEKS, Appellant, v. STATE of Florida, Appellee.
    No. 79-1374/T4-614.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 1981.
    On Rehearing April 8, 1981.

      Richard L. Jorandby, Public Defender, and Catheleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

We must reverse this case on the authority of Tascano v. State, 393 So.2d 540 (Fla.1980) (rehearing pending), and remand it for a new trial because those persons “who have preserved this point on appeal, receive the benefit on this interpretation of the rule.” Tascano. The interpretation referred to in Tascano is one which says if an accused at trial requests a jury instruction in regard to the penalties he could receive, it is reversible error for the trial judge not to so instruct. Fla.R.Crim.P. 3.390(a). There was a timely objection made to the failure to give the instruction. Kelly v. State, 389 So.2d 250 (Fla. 2d DCA 1980). The Florida Supreme Court made this applicable even to cases pending on appeal. It is not applicable to persons who did not preserve it for appeal nor for those who did raise it on appeal but whose appeal has been concluded.

REVERSED AND REMANDED.

DAUKSCH, C. J., ORFINGER and SHARP, JJ., concur.

ON MOTION FOR REHEARING

DAUKSCH, Chief Judge.

Appellee has filed a motion for rehearing based upon the allegation Tascano is not final because the motion for rehearing in that case is yet undisposed. It has now been finally decided. Tascano v. State, 393 So.2d 540, (Fla.1980) (rehearing denied, February 27, 1981). We certify in this case the same question we certified in Gee v. State, 400 So.2d 466 (Fla. 5th DCA 1981), as being of great public importance, to wit:

CAN AN APPELLATE COURT APPLY THE HARMLESS ERROR DOCTRINE, SECTION 924.33 AND SECTION 59.041, FLORIDA STATUTES (1979), TO THE FAILURE OF A TRIAL COURT TO GIVE THE JURY INSTRUCTION REQUIRED BY FLORIDA RULE OF CRIMINAL PROCEDURE 3.390(a) IF THE APPELLANT’S GUILT IS CLEARLY ESTABLISHED AND THE APPELLATE COURT DETERMINES THE ERROR COULD NOT HAVE AFFECTED THE VERDICT?

See also Palmes v. State, 397 So.2d 648 (Fla.1981).

ORFINGER and SHARP, JJ., concur.


author: DAUKSCH, Chief Judge.

text:
    John Edward GEE, Appellant, v. STATE of Florida, Appellee.
    No. 80-336.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 1981.

      James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from a conviction of burglary of a conveyance: breaking into a car.

One issue is raised on appeal: the failure of the trial judge to give a requested instruction regarding the maximum and minimum penalties the accused was facing if convicted.

As was clearly said in Tascano v. State, 393 So.2d 540 (Fla. 1980), (rehearing pending), it is mandatory that the trial judge give the penalties instruction if requested by either trial counsel. Quoting Rule 3.390(a), Florida Rules of Criminal Procedure, our supreme court ruled, in effect, it could not be deemed harmless error for the trial court to fail or refuse to so instruct although we said otherwise in Murray v. State, 378 So.2d 111 (Fla. 5th DCA 1980), and other cases. The harmless error we spoke of in Murray was in reference to the anomalous situation which has been caused to exist by instructing the jury, on the one hand, as to the particular penalty the accused is subject to and then, on the other hand, telling the jury to disregard any consideration of the penalty. This is not the ordinary harmless error doctrine but a specific, we thought, type of harmless error as we mention in the opinion and in the concurring opinion. Justice Alderman in his dissent in Tascano reiterates our reasoning. But the Murray and Tascano decisions do not treat the possibility of a case where the evidence of guilt is overwhelming, and a conviction is obviously certain, the giving of the instruction notwithstanding. Tascano does not discuss the possibility that even if the charge was given the accused would be found guilty. So that leaves us in the quandary we will discuss at the end of this opinion.

After Tascano, the Second District Court of Appeal determined that in order to properly preserve the error for appeal, it is incumbent upon trial counsel not only to request the instruction but to object to the court’s failure to give the instruction. Kelly v. State, 389 So.2d 250 (Fla. 2d DCA 1980). We have agreed with the decision in Kelly v. State, 389 So.2d 250 (Fla. 2d DCA 1980), and of course, followed the decision in Tascano v. State, 393 So.2d 540 (Fla. 1980), (rehearing pending).

Because Tascano has deemed the failure to give the instruction error and because we do not determine this case to fit within the exception to Tascano as carved out by Kelly, we must reverse the conviction and remand this case for another trial. We reverse because we have read Tascano very carefully and interpret it most cautiously and conservatively to require a new trial because of the words “it is mandatory that an instruction be given. ...” Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

However, because we are aware the court did not discuss the traditional harmless error doctrine and because we are convinced it should apply in this case we certify to the Supreme Court of Florida the following question which we deem to be of great public importance:

CAN AN APPELLATE COURT APPLY THE HARMLESS ERROR DOCTRINE, SECTION 924.33 AND SECTION 59.041, FLORIDA STATUTES (1979), TO THE FAILURE OF A TRIAL COURT TO GIVE THE JURY INSTRUCTION REQUIRED BY RULE 3.390(a) FLORIDA RULES OF CRIMINAL PROCEDURE, IF THE APPELLANT’S GUILT IS CLEARLY ESTABLISHED AND THE APPELLATE COURT DETERMINES THE ERROR COULD NOT HAVE AFFECTED THE VERDICT?

REVERSED AND REMANDED.

ORFINGER and COWART, JJ., concur.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Archie B. GRAY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 80-353.
    District Court of Appeal of Florida, Fifth District.
    March 18, 1981.
    James B. Gibson^ Public Defender, James R. Wulchak, Asst. Public Defender, and Burke D. Chester, Sp. Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

REVERSED and REMANDED but, as in Gee v. State, 400 So.2d 466 (Fla. 5th DCA 1981), we certify the following question to the Florida Supreme Court:

CAN AN APPELLATE COURT APPLY THE HARMLESS ERROR DOCTRINE, SECTION 924.33 and SECTION 59.041, FLORIDA STATUTES (1979), TO THE FAILURE OF A TRIAL COURT TO GIVE THE JURY INSTRUCTION REQUIRED BY RULE 3.390(a), FLORIDA RULES OF CRIMINAL PROCEDURE, IF THE APPELLANT’S GUILT IS CLEARLY ESTABLISHED AND THE APPELLATE COURT DETERMINES THE ERROR COULD NOT HAVE AFFECTED THE VERDICT?

ORFINGER and COBB, JJ., concur.


author: DOWNEY, Judge.

text:
    STATE of Florida, Appellant, v. McArthur BREEDLOVE, Appellee.
    No. 80-455.
    District Court of Appeal of Florida, Fourth District.
    March 25, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellant.
    Alan H. Schreiber, Public Defender, and Peter F. LaPorte, Asst. Public Defender, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

The State seeks review of an order discharging appellee, McArthur Breedlove, for failure to bring him to trial within the time provided by Florida Rule of Criminal Procedure 3.191. Our study of the briefs and applicable authorities convinces us that appellant’s discharge was erroneous and we thus reverse the order appealed from.

The undisputed facts are that Elsie Rough was murdered in Hallandale, Florida, on February 19, 1974. That crime remained unsolved until late 1979. During November 1978 the Hallandale police learned that Breedlove had been charged with a murder in Dade County. Further investigation gave the police good cause to believe that Breedlove was also the culprit in the 1974 Rough murder. Breedlove was visited at the Dade County Public Safety Department (where he was incarcerated for the 1978 murder) by the Hallandale police, and after administration of appropriate Miranda warnings, he confessed to the Rough murder. The matter was turned over to the Broward County State Attorney, who decided to await the outcome of Breedlove’s trial in Dade County. That case went to trial and Breedlove was convicted in March 1979 and sentenced to prison.

A Broward County grand jury indicted Breedlove for the Rough murder on August 8,1979, and he was arrested therefor at the Florida State Prison on August 12, 1979. Breedlove filed a motion for discharge on January 24, 1980, alleging that he had not been brought to trial “within the time frames established by Rule 3.191 F.R.Cr.P. nor the Constitution of the United States and the State of Florida....” On the authority of State v. N.B., 360 So.2d 162 (Fla. 1st DCA 1978); Lewis v. State, 357 So.2d 725 (Fla.1979); and Thomas v. State, 374 So.2d 508 (Fla.1979), the trial court granted the motion for discharge for the State’s failure to bring Breedlove to trial within 180 days of November 22, 1978, (the day the Hallandale police obtained the confession from Breedlove). The trial court found the State could not effectively extend the time periods of Rule 3.191(a)(1) by claiming Breedlove was not “taken into custody” until his formal arrest on August 12, 1979, since the State possessed all of the evidence needed to obtain a grand jury indictment in November 1978 and chose to withhold filing the charges contrary to the cases cited above.

In our judgment neither Thomas nor Lewis is applicable to the factual situation presented in this case. Thomas involved multiple charges arising out of one criminal episode. The court held the arrest on any of those charges triggered the speedy trial rule on all of the charges evolving from that episode. In the present case there is no connection between the 1974 and the 1978 murders, except that Breedlove was charged with both. The question presented in Lewis was:

Whether the speedy trial time provisions of Fla.R.Crim.P. 3.191(b)(1) apply to a defendant who, after being arrested or charged, is thereafter imprisoned on an unrelated charge?
357 So.2d at 726.

That question is not relevant to the present case. The primary authority cited by the trial court was State v. N.B., supra, which we acknowledge does contain a statement supporting the trial court’s conclusions. However, we decline to follow that statement. Rather, we think the answer to the question whether a defendant is “taken into custody,” within the meaning of Rule 3.191(a)(1) when he makes a confession after receiving Miranda warnings is to be found in our recent decision in Giglio v. Kaplan, 392 So.2d 1004 (Fla. 4th DCA 1981), an opinion filed January 21, 1981, a date subsequent to the date of the order of discharge in this case. In Giglio we held that a defendant who, while in custody on a forgery charge and after being read his Miranda rights, confessed to an automobile burglary, was not “taken into custody” within the meaning of Rule 3.191(a)(1) on the automobile burglary charge at the time of the confession. Accord: State ex rel. Dean v. Booth, 349 So.2d 806 (Fla.2d DCA 1977); Williams v. State, 382 So.2d 847 (Fla.3rd DCA 1980). The situation in the present case is substantially identical to that in Giglio.

Accordingly, it is evident the trial court erred in finding the time allowed by Rule 3.191(a)(1) for bringing Breedlove to trial without demand expired 180 days after November 22, 1978.

The sole ground mentioned by the trial court in its order of suppression was the State’s failure to bring Breedlove to trial within the time limits set forth in Florida Rule of Criminal Procedure 3.191. However, since Breedlove’s motion to suppress also asserted a denial of his right to a speedy trial under Article I, Section 16, of the Constitution of Florida, or the Sixth Amendment to the Constitution of the United States (as applied to the states via the Fourteenth Amendment), we will also treat the questions whether Breedlove was denied either of his dual constitutional rights to a speedy trial.

State v. Griffin, 347 So.2d 692 (Fla. 1st DCA 1977), involved an appeal from an order dismissing an information charging the defendant with narcotics violations. The circuit court based its order of dismissal on the ground that the State had deprived the defendant of a speedy prosecution because the State’s delay of eleven months between the date it had grounds to arrest defendant and the date it placed the defendant under arrest resulted in prejudice to the defendant “ ‘in that he has no recollection of what he was doing or where he was nor has he been able to locate any witnesses who can speak as to his actions and whereabouts on the date of the alleged crime....’” 347 So.2d at 694. In affirming the order upon a holding that the circuit court’s conclusion that the defendant had demonstrated prejudice resulting from the delayed arrest, the district court recognized that dismissal would not have been justified in the absence of prejudice. 347 So.2d at 695.

In the instant case the transcript of the hearing on Breedlove’s motion for discharge contains no showing that his delayed arrest prejudiced him in any way. Thus, we would not affirm the order of discharge on the grounds that the State violated Breedlove’s right to a speedy trial under Article I, Section 16, of the Constitution of Florida. State v. Griffin, supra. Cf., United States v. Lovasco, 431 U.S. 783 (1977), 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977).

Similarly, we are unable to affirm the order of discharge on the ground that Breedlove was denied his federal guarantee to a speedy trial. In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the Supreme Court of the United States specifically recognized that “the Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an ‘accused’ ” (404 U.S. at 313, 92 S.Ct. at 459, 30 L.Ed.2d at 474), and “that it is either a formal indictment or information or else the actual restraints imposed by arrest or holding to answer a criminal charge that engage the particular protections of the speedy trial provisions of the Sixth Amendment.” 404 U.S. at 320, 92 S.Ct. at 463, 30 L.Ed.2d at 479. Thus, in the present case Breedlove’s Sixth Amendment rights did not attach until August 8, 1979, the date he was indicted, and so there has been no violation of those rights.

Accordingly, we reverse the order of discharge and remand the cause for further proceedings.

REVERSED AND REMANDED, with directions.

BERANEK and GLICRSTEIN, JJ., concur.

      . This coprt did not pass on those questions in Giglio v. State, supra, because Carmine Giglio did not raise them in the trial court.


text:
    Charles B. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 78-2259/T4-261.
    District Court of Appeal of Florida, Fifth District.
    March 25, 1981.
    Rehearing Denied April 16, 1981.
    Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

Appellant raises three points on appeal from his conviction for second degree murder of his wife. He contends that the trial court erred: (1) in permitting the prosecutor to ask a paramedic who responded to appellant’s call for assistance if appellant said anything to him while he was there; (2) in permitting a nine year old occupant of the house where appellant and his deceased wife lived to testify that appellant had beaten his wife; and (3) in failing to comply with his request that the jury be instructed on applicable penalties.

As support for his position that the paramedic’s testimony as to appellant’s silence was reversible error, appellant relies on David v. State, 369 So.2d 943 (Fla.1979) and Childers v. State, 277 So.2d 594 (Fla. 4th DCA 1973), cert. denied, 285 So.2d 23 (1973). These cases however do not involve the point of law addressed here, because they involved comment by the prosecutor in closing argument on defendant’s failure to testify. Appellant also relies on Knight v. State, 374 So.2d 1065 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 542 (1980), but this case is also inapposite because it addressed the propriety of asking a police officer about defendant’s silence after arrest. Sub judice, the testimony elicited here involves appellant’s pre-arrest silence, and it is now clear that the use of pre-arrest silence to impeach a testifying defendant’s credibility does not violate the Constitution. Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980).

Appellant suggests that the nine year old witness who testified for the State was not competent to testify and that permitting him to do so constitutes reversible error. It has long been the law of this state that if an infant witness has sufficient intelligence to receive just impressions of the facts respecting which he or she is to testify and sufficient capacity to relate them correctly, and has received sufficient instruction to appreciate the nature and obligation of an oath, the infant should be permitted to testify. Cross v. State, 89 Fla. 212, 103 So. 636, 638 (1925). The qualifying questions asked of the young witness by the prosecutor and the court, and the answers thereto, were even more detailed than the dialogue recited in Fernandez v. State, 328 So.2d 508 (Fla. 3d DCA 1976) and we find them sufficient to test the competency of the witness. Although there were inconsistencies in his testimony (a problem not confined to youthful witnesses) his testimony did not give the impression that he had been coerced or that he was confused. The jury and the trial judge had an opportunity to observe his demeanor and to listen to his testimony and it was the province of the jury to find the truth. It is within the sound discretion of the trial judge to decide whether an infant of tender years has sufficient mental capacity and sense of moral obligation to be competent as a witness, and his ruling will not be disturbed unless a manifest abuse of discretion is shown. Rutledge v. State, 374 So.2d 975 (Fla.1979), cert. denied, Rutledge v. Florida, 446 U.S. 913, 64 L.Ed.2d 267, 100 S.Ct. 1844 (1980). We find no such abuse of discretion here.

The Supreme Court in its opinion in Tascano v. State, 393 So.2d 540 (Fla.1980) has held that the giving of the penalty instruction by the trial court is mandatory when requested, and not discretionary and that the failure to give the instruction is reversible error.

Although the decision is not given retroactive effect, the benefit thereof is extended to those defendants who preserve the point on appeal. Here, a timely objection was made to the refusal of the trial court to give the instruction on penalties. We are obliged to follow Tascano and reverse this case for a new trial because the trial judge did not give the penalty instruction as requested.

Were we free to do so, we would hold the failure to give the instruction harmless error because the evidence against appellant is strong and clear. However, Tascano leaves us in doubt as to the applicability of the traditional harmless error rule set forth in sections 59.041 and 924.33, Florida Statutes (1979). As we did in Gee v. State, 400 So.2d 466 (Fla. 5th DCA 1981), we therefore certify to the Supreme Court the following question which we deem to be of great public importance:

CAN AN APPELLATE COURT APPLY THE HARMLESS ERROR DOCTRINE, SECTION 924.33 AND SECTION 59.041, FLORIDA STATUTES (1979), TO THE FAILURE OF A TRIAL COURT TO GIVE THE JURY INSTRUCTION REQUIRED BY RULE 3.390(a), FLORIDA RULES OF CRIMINAL PROCEDURE, IF THE APPELLANT’S GUILT IS CLEARLY ESTABLISHED AND THE APPELLATE COURT DETERMINES THE ERROR COULD NOT HAVE AFFECTED THE VERDICT?

REVERSED and REMANDED for new trial.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.


author: UPCHURCH, Judge.

text:
    Douglas HAISLIP, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 79-498.
    District Court of Appeal of Florida, Fifth District.
    March 25, 1981.
    James B. Gibson, Public Defender, and Mary Sue Donsky, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   UPCHURCH, Judge.

REVERSED and REMANDED but, as in Gee v. State, 400 So.2d 466 (Fla. 5th DCA 1981), we certify the following question to the Florida Supreme Court:

CAN AN APPELLATE COURT APPLY THE HARMLESS ERROR DOCTRINE, SECTION 924.33 AND SECTION 59.041, FLORIDA STATUTES (1979), TO THE FAILURE OF A TRIAL COURT TO GIVE THE JURY INSTRUCTION REQUIRED BY RULE 3.390(A), FLORIDA RULES OF CRIMINAL PROCEDURE, IF THE APPELLANT’S GUILT IS CLEARLY ESTABLISHED AND THE APPELLATE COURT DETERMINES THE ERROR COULD NOT HAVE AFFECTED THE VERDICT?

DAUKSCH, C. J., and COBB, J., concur.


text:
    William C. McCOVICK, Appellant, v. STATE of Florida, Appellee.
    No. 78-895/T4-98.
    District Court of Appeal of Florida, Fifth District.
    April 15, 1981.
    Richard L. Jorandby, Public Defender, Mark Wilensky, Legal Intern, and Tatjana Ostapoff, Chief, Appellate Division, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

This is an appeal from a conviction of involuntary sexual battery on a minor child. Appellant raises three issues on appeal: (1) the admission of evidence concerning a collateral crime, (2) the denial of his motion of acquittal relating to the issue of his age, and (3) the trial court’s refusal to give a requested jury instruction about the maximum and minimum penalties for the offense for which appellant was on trial.

Although we reject appellant’s first two arguments, we must reverse this case on the authority of Tascano v. State, 393 So.2d 540 (Fla.1980). Appellant properly preserved the error for appeal. Kelly v. State, 389 So.2d 250 (Fla.2d DCA 1980).

As in Gee v. State, 400 So.2d 466 (Fla. 5th DCA 1981), we are convinced that the harmless error rule should apply in this case and therefore certify to the Supreme Court of Florida the following question which we deem to be of great public importance:

CAN AN APPELLATE COURT APPLY THE HARMLESS ERROR DOCTRINE, SECTION 924.33 AND SECTION 59.041, FLORIDA STATUTES (1979), TO THE FAILURE OF A TRIAL COURT TO GIVE THE JURY INSTRUCTION REQUIRED BY FLORIDA RULE OF CRIMINAL PROCEDURE 3.390(a), IF THE APPELLANT’S GUILT IS CLEARLY ESTABLISHED AND THE APPELLATE COURT DETERMINES THE ERROR COULD NOT HAVE AFFECTED THE VERDICT?

REVERSED AND REMANDED.

FRANK D. UPCHURCH, Jr., and SHARP, JJ., and JAMIESON, FRANCES ANN, Associate Judge, concur.


author: SHARP, Judge.

text:
    Richard Todd CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 79-1748/T4-708.
    District Court of Appeal of Florida, Fifth District.
    April 15, 1981.
    Richard L. Jorandby, Public Defender, and Robert C. Fallon, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   SHARP, Judge.

Clark appeals from a judgment and sentence for the offense of robbery involving the use of a firearm. Rejecting appellant’s argument related to the denial of his motion to suppress his confession, we nevertheless must reverse this case because the trial judge declined to instruct the jury regarding the maximum and minimum penalties the appellant could receive. Tascano v. State, 393 So.2d 540 (Fla.1980).

However, we believe the harmless error rule should apply in this case because the evidence of guilt was clearly established. We therefore follow Gee v. State, 400 So.2d 466 (Fla. 5th DCA 1981), in certifying to the Supreme Court of Florida the following question which we deem to be of great importance:

CAN AN APPELLATE COURT APPLY THE HARMLESS ERROR DOCTRINE, SECTIONS 924.33 AND 59.041, FLORIDA STATUTES (1979), TO THE FAILURE OF A TRIAL COURT TO GIVE THE JURY INSTRUCTION REQUIRED BY FLORIDA RULE OF CRIMINAL PROCEDURE 3.390(a), IF THE APPELLANT’S GUILT IS CLEARLY ESTABLISHED AND THE APPELLATE COURT DETERMINES THE ERROR COULD NOT HAVE AFFECTED THE VERDICT?

REVERSED and REMANDED.

DAUKSCH, C. J., and COBB, J., concur.


author: ORFINGER, Judge. ORFINGER, Judge.

text:
    James J. ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 80-1103.
    District Court of Appeal of Florida, Fifth District.
    April 15, 1981.
    On Rehearing May 20, 1981.
    James J. Roberts, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

Appellant’s contention that he could not be sentenced separately for one count of shooting into an occupied vehicle and two counts of aggravated battery all arising out of the same incident lacks merit. The battery counts involved different persons, and one need not commit an aggravated battery in order to commit the offense of shooting into an occupied vehicle. See Barlow v. State, 255 So.2d 559 (Fla. 1st DCA 1971). Neither is the aggravated battery included in the offense of shooting into the vehicle such as would make it a Brown category (4) lesser included offense.

Appellant’s contention that he could not be given a split sentence pursuant to section 948.01(4), Florida Statutes, is likewise unavailing. This court has held that Villery v. Florida Parole and Probation Commission, 396 So.2d 1107, No. 57,935 (Fla. 1980) [1980 F.L.W. 554], was not intended to apply to split sentences. Hollingsworth v. State, 394 So.2d 580 (Fla. 5th DCA 1981).

AFFIRMED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

ON REHEARING GRANTED

ORFINGER, Judge.

Subsequent to the filing of the original opinion in this case, the Supreme Court issued its revised opinion in Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981) and the court has clearly applied the principles of that opinion to split sentences under section 948.01(4), Florida Statutes (1979).

The order entered below denying relief to appellant under Florida Rule of Criminal Procedure 3.850 is reversed insofar as it denied correction of appellant’s split sentence of five years of incarceration followed by ten years of probation, and the case is remanded to the trial court for resentencing in the light of Villery. Except as noted, we adhere to our original opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

      . Brown v. State, 206 So.2d 377 (Fla.1968).