author: ALDERMAN, Justice. OVERTON, Justice, SUNDBERG, Chief Justice, ADKINS, Justice,

text:
    Morris W. MILTON, Charles Shorter, S. Curtis Kiser, Lorraine Quinn, and Pamela A. Meacomes, Petitioners, v. Bruce M. SMATHERS, as Secretary of State of Florida; and Charles J. Kaniss, as Supervisor of Elections of Pinellas County, Florida, Respondents.
    No. 51041.
    Supreme Court of Florida.
    Oct. 23, 1980.

      Peter M. Dunbar of Dunbar, Dunbar & Roman, Dunedin, S. Curtis Kiser of Kur-land, Johnson & Kiser, Clearwater, and Morris W. Milton of Williams & Milton, St. Petersburg, for petitioners.
    Jim Smith, Atty. Gen., and Joseph A. Linnehan, Asst. Atty. Gen., Tallahassee, and Thomas C. Schiereck, Asst. County Atty., for Pinellas County, Clearwater, for respondents.
    Dennis J. Wall, Gainesville, for amicus curiae.
    John E. Mathews, Jr. and Jack W. Shaw, Jr. of Mathews, Osborne, Ehrlick, McNatt, Gobelman & Cobb, Jacksonville, for Donald Tucker and Lew Brantley, intervenors.
   ALDERMAN, Justice.

Pursuant to the procedures established by In re Apportionment Law, Senate Joint Resolution 1305, 263 So.2d 797, 822 (Fla.1972), in an original proceeding, petitioners, Morris Milton and Charles Shorter, challenged the constitutional validity of Senate Joint Resolution 1305 as it applied to them in multimember House Districts 57-61 on its effective date. We found that their petition stated sufficient allegations to come within the retained jurisdiction of this Court as set forth in In re Apportionment Law, Senate Joint Resolution 1305, and we appointed Circuit Judge Victor Cawthon as our commissioner to make factual findings and recommendations. Milton v. Smathers, 351 So.2d 24 (Fla.1979).

Commissioner Cawthon made findings of fact and concluded that the efforts of petitioners to prove the creation of the district unconstitutional were unsuccessful. He determined that the resolution at its inception did not operate so as to unconstitutionally minimize or cancel out the voting strength of the black members of the population by denying members of the black minority an opportunity equal to that of other residents of the district to participate in the political process and to elect legislators of their choice. We approve the following findings of fact and recommendations of the commissioner:

In the general terms of this Court’s Opinion filed herein on June 30,1977, and of the Commissioner’s procedural guidelines approved by the Court on February 8,1978, the Petitioners are not entitled to relief unless Senate Joint Resolution 2305, 1972 Regular Session is determined to have operated at its inception to unconstitutionally minimize or cancel out the voting strength of black members of the voting population of Florida House Districts 57-61 by denying to the members of the black minority in that district an opportunity equal to that of other residents in the district to participate in the political processes and to elect legislators of their choice.
This determination depends somewhat on the answers found to the following questions:
1. Are the blacks in this district an identifiable class for Fourteenth Amendment purposes?
2. Is a majority vote in the primary election required to nomination?
3. Must candidates qualify for a certain “place” on the ticket?
4. Is cumulative voting prohibited?
5. Are candidates allowed to reside anywhere in the district?
6. Have members of this class historically suffered from discrimination in this geographic area as evidenced by:
(a) Segregated schools,
(b) Poll tax,
(c) Literacy tests,
(d) Cultural and language barriers,
(e) White primaries.
7. Is some other group in control of the majority party slate?
8. Are racial campaign tactics used against black candidates?
9. Is the district a large one as compared to Bexar and Dallas Counties in Texas?
10. Is there a one-party system?
11. Is The District multi-membered for both houses of the legislature?
12. Is a substantial portion of the House elected from this District?
13. Is the multi-member scheme rooted in racial discrimination?
14. Do blacks register as large a percentage of their eligible voters as do whites?
15. Are the representatives who are elected responsive to the interests of the blacks?
16. Are the candidates of either party in need of the black vote?
No analysis of the evidence is required to determine that questions 1-5 must be answered affirmatively and these answers are favorable to the position of the petitioners.
Likewise, although poll taxes, white primaries and literacy tests have not been a part of the Florida electoral process for at least forty years, there is no question that blacks have been, in much more recent history, discriminated against.
On the other hand, it is equally as obvious that questions 7-13 must be answered in the negative and that these answers would be unfavorable to the position of the petitioners.
Although black registration in The District was mentioned in the testimony of Frederick James Hicks, Carolyn C. Murphy and Frank Pierce, all witnesses for the petitioners, and although Charles D. Shorter, Jr., another witness for the petitioners, testified the area in The District most heavily populated by blacks “probably has the lowest voter registration,” none of this evidence nor all of it approaches what a fact finder would need to determine what percentage of the blacks in The District eligible to vote-as distinguished from population-registered and how this percentage would compare with the percentage of non-blacks in The District eligible to vote who registered.
For this reason no answer can be given to question # 14.
The petitioners’ witnesses generally testified that the representatives from The District were not responsive to the interests of the black minority but three of those representatives who were called by the respondents testified that they were. This apparent conflict in testimony was not real.
The petitioners’ witnesses seemed to be referring to a lack of responsiveness on the part of the representatives to the collective problems of the black community such as housing, health care, welfare, employment and education as evidenced by their failure to sponsor or initiate legislation designed to benefit the black minority in these areas. The representatives themselves were testifying as to their practice of treating black and white constituents the same when asked by members of either race for help, and of their efforts to determine in what ways they could help.
With a few exceptions, witnesses for both sides testified that the leaders of the black community had not asked the representatives from The District to support, oppose, or introduce any specific legislation.
It is apparent from the testimony and from the nature of multimember districts like this one in which a minority of blacks and a majority of whites both live, that its representatives are not as responsive to the interests of blacks as they would be if they represented a constituency which was largely or completely black.
It would certainly seem from the record that the Democratic candidates in The District need the black vote to win. Although the majority of blacks in The District register and presumably vote democratic, the party lost all five seats in the general elections in 1972 and 1974. In 1976 the only Democrat to win was Don Poindexter, and his success was partially due to the strong showing which he made in black precincts.
Since some of the answers to the sixteen questions initially posed are favorable to the position of the petitioners and some are unfavorable, and since no appellate court has to date favored us with any indication as to what weight should be given each criteria or what number of favorable answers would be required for the petitioners’ case to achieve a passing grade, it is the Commissioner’s recommendation that the Court test the constitutionality of the creation of The District by the extent of the opportunity blacks have to participate in the electoral processes.
From the record black Democrats have an opportunity equal to that of white Democrats to participate in the political processes in The District. They participated in Democratic party functions on a local and state level, had input in the formulation of the party’s platform, formed a caucus which endorsed candidates in The District, some of whom were successful, served on the Democratic Executive Committee and were nominated as candidates in the party primaries without opposition.
From the foregoing, it would appear that the petitioners’ efforts to prove the creation of The District to have been unconstitutional were unsuccessful.

An examination of the record reveals that the reason black candidates have not been elected is not because of racial discrimination but rather because they run as Democratic candidates in a Republican area of the state.

Our decision to approve the commissioner’s findings and recommendation and our holding that multimember districts 57-61 do not violate the fourteenth or fifteenth amendments to the United States Constitution are buttressed by the recent pronouncements of the Supreme Court of the United States in City of Mobile, Alabama v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). The Supreme Court held that Mobile’s at-large electoral system of electing its governing commissioners did not violate the fourteenth or fifteenth amendment rights of the city’s black minority population. The commissioners elected at large jointly exercised all legislative, executive, and administrative power in the city. A class action was brought on behalf of the black citizens on the basis that the at-large election process diluted the voting strength of the blacks. Explaining that racially discriminatory motivation is a necessary ingredient of a fifteenth amendment violation, the Court held that this amendment “prohibits only purposefully discriminatory denial or abridgement by government of the freedom to vote ‘on account of race, color, or previous condition of servitude.’ ” 446 U.S. at 60, 100 S.Ct. at 1497 (emphasis added). The Court emphasized that the fifteenth amendment does not entail the right to have black candidates elected. Finding no purposeful discrimination and that the blacks in Mobile registered and voted without hindrance, the Court concluded that there was no fifteenth amendment violation.

Evaluating the fourteenth amendment equal protection challenge to the Mobile election scheme, the Supreme Court initially reiterated that multimember districts are not unconstitutional per se but that they could violate the fourteenth amendment if their purpose were invidiously to minimize or cancel out the voting potential of racial or ethnic minorities. This invidious intent or purpose of racial discrimination, the Supreme Court explained, cannot be proved by merely showing that the group discriminated against has not elected representatives in proportion to its numbers. Disproportionate effects alone will not establish a claim of unconstitutional racial vote dilution. Rather, “[a] plaintiff must prove that the disputed plan was ‘conceived or operated as a purposeful device to further racial discrimination.’ [Whitcomb v. Chavis, 403 U.S. 124, 149 [91 S.Ct. 1858, 1872, 29 L.Ed.2d 363] (1971)].” 446 U.S. at 66, 100 S.Ct. at 1499. Proof of a discriminatory effect is not sufficient. Reversing the lower courts on the basis that no discriminatory purpose had been proved, the Supreme Court stated that the district court had based its determination of unconstitutionality primarily on the fact that no black had ever been elected to the city commission and the fact that the city officials had not been as responsive to the interests of blacks as to those of white persons but that the lower court had also seemingly inconsistently found that there were no inhibitions against blacks becoming candidates or registering to vote. The Supreme Court further said:

But past discrimination cannot, in the manner of original sin, condemn governmental action that is not itself unlawful. The ultimate question remains whether a discriminatory intent has been proved in a given case. More distant instances of official discrimination in other cases are of limited help in resolving that question.
Finally, the District Court and the Court of Appeals pointed to the mechanics of the at-large electoral system itself as proof that the votes of Negroes were being invidiously canceled out. But those features of that electoral system, such as the majority vote requirement, tend naturally to disadvantage any voting minority, as we noted in White v. Regester, supra. They are far from proof that the at-large electoral scheme represents purposeful discrimination against Negro voters.

446 U.S. at 74, 100 S.Ct. at 1503. In refutation of Justice Marshall’s dissenting opinion, the Supreme Court held:

The Equal Protection Clause of the Fourteenth Amendment does not require proportional representation as an imperative of political organization. The entitlement that the dissenting opinion assumes to exist simply is not to be found in the Constitution of the United States.
It is true, as the dissenting opinion states, that the Equal Protection Clause confers a substantive right to participate in elections on an equal basis with other qualified voters. See Dunn v. Blumstein, 405 U.S. 330, 336 [92 S.Ct. 995, 999, 31 L.Ed.2d 274]; Reynolds v. Sims, 377 U.S. 533, 576 [, 84 S.Ct. 1362, 1389, 12 L.Ed.2d 506]. But this right to equal participation in the electoral process does not protect any “political group,” however defined, from electoral defeat.

The fact is that the Court has sternly set its face against the claim, however phrased, that the Constitution somehow guarantees proportional representation. In Whitcomb v. Chavis, supra, the trial court had found that a multimember state legislative district had invidiously deprived Negroes and poor persons of rights guaranteed them by the Constitution, notwithstanding the absence of any evidence whatever of discrimination against them. Reversing the trial court, this Court said:

“The District Court’s holding, although on the facts of this case limited to guaranteeing one racial group representation, is not easily contained. It is expressive of the more general proposition that any group with distinctive interests must be represented in legislative halls if it is numerous enough to command at least one seat and represents a majority living in an area sufficiently compact to constitute a single-member district. This approach would make it difficult to reject claims of Democrats, Republicans, or members of any political organization in Marion County who live in what would be safe districts in a single-member district but who in one year or another, or year after year, are submerged in a one-sided multi-member district vote. There are also union oriented workers, the university community, religious or ethnic groups occupying identifiable areas of our heterogeneous cities and urban areas. Indeed, it would be difficult for a great many, if not most, multi-mem-ber districts to survive analysis under the District Court’s view unless combined with some voting arrangement such as proportional representation or cumulative voting aimed at providing representation for minority parties or interests. At the very least, affirmance of the District Court would spawn endless litigation concerning the multi-member district systems now widely employed in this country.” Whitcomb v. Chavis, supra, [403 U.S.] at 156-157 [91 S.Ct. at 1875-1876] (footnotes omitted).

446 U.S. at 75-80,100 S.Ct. at 1503-1507. 1507.

In the present case, petitioners have failed to allege or prove that the disputed election plan was conceived or operated as a purposeful device to further racial discrimination.

Accordingly, the relief requested by petitioners is denied.

It is so ordered.

BOYD, OVERTON and McDONALD, JJ., concur.

OVERTON, J., concurs specially with an opinion.

SUNDBERG, C. J., dissents in part with an opinion, with which ENGLAND, J., concurs.

ADKINS, J., dissents with an opinion.

OVERTON, Justice,

concurring specially.

I agree with the majority opinion in that it expresses the law as set forth most recently by the United States Supreme Court in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). Although I personally favor single-member districts in our representative political system and so voted as a member of the Florida Constitution Revision Commission, I believe I am bound by this most recent Supreme Court ruling. There clearly is no fourteenth amendment constitutional requirement to have single-member districts under Bolden, absent a finding of purposeful discrimination. There was no such purposeful discrimination in the establishment of the multimember district in issue in this case. Further, if this multimember district is unconstitutional, then, in my view, all legislative multimember districts should be declared unconstitutional.

Whether the standards for fourteenth amendment voting district relief also apply to requests for identical relief under the fifteenth amendment is an issue that was not properly presented in this cause. The plurality decision in Bolden clearly implies that the same standards are applicable. The petitioner in the instant case submitted this cause as a fourteenth amendment violation and did not contend there should be different standards for fourteenth and fifteenth amendment claims.

SUNDBERG, Chief Justice,

dissenting in part.

In spite of its inscrutable nature, one pattern does emerge from City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), which evinces a lack of consensus as to whether a discriminatory purpose must be demonstrated in a proper fifteenth amendment case. I believe because of the fundamental nature and specific scope of the fifteenth amendment that the burden of proof in these cases should be allocated more in favor of the complaining party than in those cases predicated principally upon the fourteenth amendment. Although I do not go so far as to agree that every “showing of discriminatory impact” on a racial group’s voting rights is sufficient for relief under the fifteenth amendment, I also do not believe that this necessarily implies the opposite, viz., a requirement of showing a discriminatory purpose for fifteenth amendment relief.

The standard I would adopt, as an alternative to those antimonies, is based upon the implications of such cases as Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960), and White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). These eases suggest that a party can make out its cause of action by showing a significant adverse impact on a racial group’s right to vote. The onus would then be placed onto the state to rationalize this adverse impact on a racial group by the showing of some neutral justification. See Gomillion, 364 U.S. at 342, 81 S.Ct. at 127.

Because, however, petitioners did not raise the fifteenth amendment arguments in the record before us, I would refer the case back to the commissioner for taking additional testimony and considering additional arguments for the purpose of making findings based upon these fifteenth amendment arguments, since a viable claim founded on the fifteenth amendment does appear possible.

ENGLAND, J., concurs.

ADKINS, Justice,

dissenting.

I dissent.

In City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), the United States Supreme Court held that the city of Mobile did not violate the Constitution by maintaining an at-large system of electing city officials. Since 1911 the city of Mobile had been governed by a city commission consisting of three members elected by the voters of the city at-large. Bolden and others brought class action on behalf of all Negro citizens of Mobile alleging that the practice of electing the commissioners at-large unfairly diluted the voting strength of the Negroes in violation of section 2 of the Voting Rights Act of 1965, as well as the Fourteenth Amendment and Fifteenth Amendments to the United States Constitution. The District Court found that the constitutional rights of Bol-den had been violated and entered a judgment in favor of plaintiffs, ordering that the city commission be disestablished and replaced by a municipal government consisting of a mayor and the city council with members elected in single-member districts. Bolden v. City of Mobile, 423 F.Supp. 384 (S.D.Ala.1976). The Court of Appeals affirmed the judgment in its entirety, Bolden v. City of Mobile, 571 F.2d 238 (5th Cir. 1978), agreeing that Mobile’s at-large elections operated to discriminate against Negroes in violation of the Fourteenth and Fifteenth Amendments and finding that the remedy formulated by the district court was appropriate. A majority of the Supreme Court agreed to reverse the Court of Appeals, but for various reasons.

By its decision the Supreme Court did not give a stamp of approval for all at-large elections in cities. On the same day the Court rendered its decision in City of Rome v. United States, 446 U.S. 156, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980). In 1966 the city of Rome changed to the majority vote, runoff election scheme, rather than the previous scheme which provided for a plurality vote for each of the members of the city commission. The attorney general had designated Georgia-as a jurisdiction under the Voting Rights Act of 1965. 42 U.S.C. § 1973 et seq. (1976). The district court found that the disapproved electoral changes had not been made for any discriminatory purposes, but did have a discriminatory effect. The city argued that the Voting Rights Act may not be read as prohibiting voting practices that have only a discriminatory effect. Under the Voting Rights Act the city had the burden of proving the absence of discriminatory purpose and effect. The Supreme Court held that the lower court did not clearly err in finding that the city had failed to prove that the 1966 electoral changes would hot dilute the effectiveness of the Negro vote in Rome. The conclusion of the district court was based on the presence of three vote-di-lutive factors: “the at large electoral system, the residency requirement for officeholders, and the high degree of racial bloc voting.” 446 U.S. at 187, 100 S.Ct. at 1566. Justice Stewart, the author of the Mobile opinion, joined Justice Rehnquist in dissenting. Justice Powell also dissented.

In Mobile, Justice Stewart, joined by Chief Justice Burger, Justice Powell, and Justice Rehnquist held that Mobile’s at-large electoral system did not violate the rights of the city’s voters in contravention of the Fifteenth Amendment. They held that racially discriminatory motivation was a necessary ingredient of a Fifteenth Amendment violation. They also held that the electoral system did not violate the rights of the Negro voters and contravene the Fourteenth Amendment and there could be a violation of the equal protection clause only if there was a purposeful discrimination. In City of Rome, Justice Stewart in his dissent recognized that four members of the Court in Mobile held that purposeful discrimination would be a prerequisite to establishing a constitutional, violation in a case alleging vote dilution under the Fourteenth and Fifteenth Amendments. He commented that “a majority of the court might adopt this view”. City of Rome, 446 U.S. at 210 n.3, 100 S.Ct. at 1579 n.3. Rehnquist and Stewart, JJ., dissenting.

In his plurality (not majority) opinion, Justice Stewart pointed out the criteria upon which the district court and court of appeals relied to prove an unconstitutionally discriminatory purpose.

First the trial court found it significant that no Negro had been elected; second, the trial court relied in part on its finding that the persons who were elected to the commission discriminated against Negroes in municipal employment and in dispensing public services; third, the trial court supported its conclusion by drawing upon the substantial history of official racial discrimination in Alabama; and, fourth, the trial court pointed to the mechanics of the at large electoral system itself as proof that the votes of Negroes were being invidiously cancelled out.

The plurality opinion says that this proof was insufficient to show purposeful discrimination against Negro voters. In a footnote, Justice Stewart refers to the fact that the municipal government of Mobile is established by the legislature and there was evidence that several proposals that would have altered the form of municipal government had been defeated in the state legislature. City of Mobile, 446 U.S. at 74 n.21, 100 S.Ct. at 1504 n.21. One proposal which was defeated would have permitted Mobile to govern itself' through a mayor and city council with members elected from individual districts within the city.

Justice Stevens, in concurring in the judgment, did not believe that it is appropriate to focus on the subjective intent of the decision makers. Justice Stevens said:

In my view, the proper standard is suggested by three characteristics of the gerrymander condemned in Gomillion: [Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960)]. (1) the 28-sided configuration was, in the Court’s word, “uncouth,” that is to say, it was manifestly not the product of a routine or a traditional political decision; (2) it had a significant adverse impact on a minority group; and (3) it was unsupported by any neutral justification and thus was either totally irrational or entirely motivated by a desire to curtail the political strength of the minority. These characteristics suggest that a proper test should focus on the objective effects of the political decision rather than the subjective motivation of the decisionmaker. See United States v. O’Brien, 391 U.S. 367, 384 [, 88 S.Ct. 1673, 1683, 20 L.Ed.2d 672] [Footnote omitted]. In this case, if the commission form of government in Mobile were extraordinary, or if it were nothing more than a vestige of history, with no greater justification than the grotesque figure in Gomillion, it would surely violate the Constitution. That conclusion would follow simply from its adverse impact on black voters plus the absence of any legitimate justification for the system, without reference to the subjective intent of the political body that has refused to alter it.

446 U.S. at 90, 100 S.Ct. at 1512, Stevens, J., concurring.

Justice Blackmun concurred in the Court’s judgment of reversal because he believed that the relief afforded by the district court was not commensurate with the sound exercise of judicial discretion. He could see no reason for the district court to have separated legislative and executive power in the city of Mobile by creating the office of Mayor and would reverse so that the District Court could consider alternative plans. However, Justice Blackmun agreed with Justice White that, in this case, “the findings of the District Court amply support an inference of purposeful discrimination.” City of Mobile, 446 U.S. at 80, 100 S.Ct. at 1507, Blackmun, J., concurring.

Justice Brennan and Justice Marshall agreed that the proof of discriminary impact was sufficient. Even accepting the plurality’s premise that discriminatory purpose must be shown, they agreed with Justice Blackmun and Justice White that Bol-den had clearly met that burden. In other words, four justices held that the proof was sufficient to show an invidious motivation, while four other justices held that the proof was insufficient. The ninth justice, Stevens, while concurring in the result for other reasons, said:

I do not believe otherwise legitimate political choices can be invalidated simply because an irrational or invidious purpose played some part in the decisionmaking process.... I believe we must accept the choice to retain Mobile’s commission form of government as constitutionally permissible even though that choice may well be the product of mixed motivation, some of which is invidious.

446 U.S. at 92, 100 S.Ct. at 1513.

Even if we construe the decision of the United States Supreme Court as holding that an invidious purpose must be adduced to support a claim of unconstitutionality under the Fourteenth or Fifteenth Amendment, the evidence as outlined in Justice Stewart’s plurality opinion is sufficient to show this invidious purpose.

It follows that the evidence in the case sub judice is sufficient to show a discriminatory purpose under the guideline as established by a majority of the justices of the United States Supreme Court in City of Mobile.

Petitioners Milton and Shorter are black registered voters in House Districts 57-61. In 1970 the total population of Pinellas County was 722,329 of which 42,774 were black persons. In districts 57-61 there are approximately 282,805 residents of whom approximately 33,535 are blacks according to the 1970 census. The Pinellas County legislative delegation consists of ten representatives and seven senators. Five representatives are elected in at-large elections from districts 57-61. There is one representative for every approximately 56,000 persons in districts 57-61. Approximately 12% of the population of House Districts 57-61 is black and is located in a relatively small geographical area.

No black has been elected to the legislature in Pinellas County in this century. Petitioner Shorter was nominated by the democratic party to a seat in the House of Representatives in district 61, but in the general election petitioner Shorter was defeated by the republican candidate. The returns disclose that petitioner Shorter carried nine adjacent precincts with over 75% of the vote cast and twenty-nine adjacent precincts with over 50% of the vote. Notwithstanding the solidarity of the black vote, the votes were ineffective district-wide. Petitioner Shorter received 39,369 .votes and his republican opponent received 43,599 votes.

Petitioner Milton was a candidate in the first 1976 primary election for House District 61. He carried seven adjacent precincts with over 90% of the votes cast and six additional adjacent precincts with over 70% of the votes cast. The precincts which petitioner Milton carried were black precincts. In the democratic primary petitioner Milton received 9,651 votes and his opponent received 12,158 votes.

Petitioners also disclose that during the 1975 regular session of the Florida House of Representatives, the Pinellas delegation from districts 57-61 voted on 551 general bills and joint resolutions. A review of the voting records disclosed that the representatives consistently voted as a bloc. Petitioners point out that only sixty-eight votes out of the total 551 were not uniform. Petitioners say that the divergent interest within districts 57-61 could not be effectively represented by such a cohesive delegation.

Evidence shows that no black has ever been elected in a partisan election in the district. The dual school system in Pinellas County was desegregated only pursuant to a court order. There is evidence of employment discrimination as well as disparagement in municipal services, income level, and living conditions.

Ten representatives are elected from Pi-nellas County and five of them run in this multimember district. The statewide apportionment policy followed by the legislature was to provide multimember districts for densely populated counties to guarantee • effective representation and operation of government at the state level. “Multi-member districts in densely populated counties of the state are based on the county’s representational ratio, however no multi-member district exceeds six (6) representatives; single-member districts are based on the same policy and are provided in the counties not covered above.” In Re Apportionment Law, 263 So.2d 797 at 801 (Fla.1972). Under this apportionment plan, we now have only four blacks who have been elected to the House of Representatives. This of course does not in itself invalidate the multimember districts, but it is a factor to be considered in determining whether or not multimember House Districts 57-61 were created for the purpose of diluting or abridging the vote of the blacks.

We upheld the facial constitutional validity of multi-member districts in Florida. In Re Apportionment Law, supra. In this decision we said:

We, therefore, hold that variable multi-member districts are not per see invalid under the Florida Constitution. It might well be that, designedly or otherwise, a multi-member constituency scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population. When this is demonstrated, we will consider whether the apportionment plan still passes constitutional muster.
In other words, the apportionment plan as framed may be constitutional on its face, but upon its application in a particular case the joint resolution may violate organic law. This is in accord with our holdings that a statute may be valid as applied to one state of facts, though invalid as applied to another state of facts. See 4 F.L.P., Constitutional Law, § 10, p. 253, and authorities cited.

263 So.2d at 808 (emphasis supplied). The words “designedly or otherwise” as used in the above quotation from our decision comes from Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965). In this case the Supreme Court upheld the validity of a Georgia plan which divided rural areas into single-member districts, but urban areas into multimember districts, thus minimizing the effectiveness of the votes of blacks concentrated in the urban areas. There was no proof offered to support the claim that the multimember districts did in fact minimize or cancel out the voting strength of the blacks. The Court ruled that the equal protection clause did not necessarily require the formation of all single-member districts. The Court did not, however, declare that in all cases multi-member districts would be constitutionally permissible. The Court, speaking through Justice Brennan, said:

[0]ur opinion is not to be understood to say that in all instances or under all circumstances such a system as Georgia has will comport with the dictates of the Equal Protection Clause. It might well be that, designedly or otherwise, a multi-member constituency apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population. When this is demonstrated it will be time enough to consider whether the system still passes constitutional muster.

379 U.S. at 439, 85 S.Ct. at 501.

These words were reiterated in Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966), as being the correct test to apply in vote dilution claims. This standard was again considered and applied in Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971). One of the justices construed these words, “designedly or otherwise” as authorizing the constitutional challenge of a multimember district by showing that there was a discriminatory effect of denying equal access to the political process. See Mobile v. Bolden, supra.

In challenges based upon the Fourteenth Amendment, the plaintiff should be required to show that the plan’s draftsmen intended to dilute the effectiveness of the vote of a certain racial element, but this intent may be shown by the totality of the circumstances which may include the effect of the plan.

The plurality in Mobile says that action by a state that is racially neutral on its face violates the Fifteenth Amendment only if motivated by a discriminatory purpose. 446 U.S. at 61, 100 S.Ct. at 1497. The Mobile plurality takes the position that White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), is consistent with “the basic equal protection principle that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose.” 446 U.S. 70, 100 S.Ct. 1501, quoting Washington v. Davis, 426 U.S. 229, 240, 96 S.Ct. 2040, 2047, 48 L.E.2d 597 (1976).

In White v. Regester, the Court affirmed a judgment of the district court invalidating the multimember districts in Dallas and Bexar Counties, Texas, and ordered those districts to be redrawn into single-member districts. The following discussion related to the evidence produced to support a contention that the voting strength of the blacks was cancelled out or minimized:

[T]he District Court first referred to the history of official racial discrimination in Texas, which at times touched the right of Negroes to register and vote and to participate in the democratic processes. 343 F.Supp. at 725. It referred also to the Texas rule requiring a majority vote as a prerequisite to nomination in a primary election and to the so-called “place” rule limiting candidacy for legislative office from a multimember district to a specified “place” on the ticket, with the result being the election of representatives from the Dallas multimember district reduced to a head-to-head contest for each position. These characteristics of the Texas electoral system, neither in themselves improper nor invidious, enhanced the opportunity for racial discrimination, the District Court thought. More fundamentally, it found that since Reconstruction days, there have been only two Negroes in the Dallas County delegation to the Texas House of Representatives and that these two were the only two Negroes ever slated by the Dallas Committee for Responsible Government (DCRG), a white-dominated organization that is in effective control of Democratic Party candidate slating in Dallas County. That organization, the District Court found, did not need the support of the Negro community to win elections in the county, and it did not therefore exhibit good-faith concern for the political and other needs and aspirations of the Negro community. The court found that as recently as 1970 the DCRG was relying upon “racial campaign tactics in white precincts to defeat candidates who had the overwhelming support of the black community.” Id., at 727.

412 U.S. 766-67, 93 S.Ct. at 2339-2340. (Footnotes omitted).

From this evidence the Court concluded that the black community was effectively excluded from participation in the democratic primary selection process and was therefore generally not permitted to enter into the political process in a reliable, meaningful manner.

The Supreme Court of the United States reached the same conclusion in connection with the multimember district district in Bexar County. In its opinion the Court said:

Surveying the historic and present condition of the Bexar County Mexican-American community, which is concentrated for the most part on the west side of the city of San Antonio, the [district] court observed, based upon prior cases and the record before it, that the Bexar community, along with other Mexican-Americans in Texas, had long “suffered from', and continues to suffer from, the results and effects of invidious discrimination and treatment in the fields of education, employment, economics, health, politics and others.” 343 F.Supp., at 728. The bulk of the Mexican-Ameriean community in Bexar County occupied the Barrio, an area consisting of about 28 contiguous census tracts in the city of San Antonio. Over 78% of Barrio residents were Mexi-ean-Americans, making up 29% of the county’s total population. The Barrio is an area of poor housing; its residents have low income and a high rate of unemployment. The typical Mexican-Ameriean suffers a cultural and language barrier that makes his participation in community processes extremely difficult, particularly, the court thought, with respect to the political life of Bexar County. “[A] cultural incompatibility .. . conjoined with the poll tax and the most restrictive voter registration procedures in the nation have operated to effectively deny Mexican-Americans access to the political processes in Texas even longer than the Blacks were formally denied access by the white primary.” 343 F.Supp., at 731. The residual impact of this history reflected itself in'the fact that Mexican-American voting registration remained very poor in the county and that only five Mexican-Americans since 1880 have served in the Texas Legislature from Bexar County. Of these, only two were from the Barrio area. The District Court also concluded from the evidence that the Bexar County legislative delegation in the House was insufficiently responsive to Mexican-Ameriean interests.

412 U.S. at 767-69, 93 S.Ct. at 2340-2341. (Footnotes omitted).

The Supreme Court of the United States did not hold that every racial or political group has a constitutional right to be represented in the state legislature, but did conclude that the multimember districts, as designed and operated in Dallas and Bexar Counties, invidiously excluded the blacks and Mexican-Americans from effective participation in political life, specifically in the election of representatives to the Texas House of Representatives.

A footnote of the plurality opinion in Mobile contains the following:

In Gafney [Gaffney] v. Cummings, 412 U.S. 735 [93 S.Ct. 2321, 37 L.Ed.2d 298], a case decided the same day as White v. Regester, 412 U.S. 755 [, 93 S.Ct. 2332, 37 L.Ed.2d 314], the Court interpreted both White and the earlier vote dilution cases as turning on the existence of discriminatory purpose:
“State legislative districts may be equal or substantially equal in population and still be vulnerable under the Fourteenth Amendment. A districting statute otherwise acceptable, may be invalid because it fences out a facial group so as to deprive them of their pre-existing municipal vote. Gomillion v. Lightfoot, 364 U.S. 339 [81 S.Ct. 125, 5 L.Ed.2d 110] (1960). A districting plan may create multimem-ber districts perfectly acceptable under equal population standards, but invidiously discriminatory because they are employed “to minimize or cancel out the voting strength of racial or political elements of the voting population.” Fortson v. Dorsey, 379 U.S. 433, 439 [85 S.Ct. 498, 501, 13 L.Ed.2d 401] (1965). See White v. Regester, [412 U.S.] p. 755 [93 S.Ct. p. 2334]; Whitcomb v. Chavis, 403 U.S. 124 [91 S.Ct. 1858, 29 L.Ed.2d 363] (1971); Abate v. Mundt, 403 U.S. [182] at 184, n. 2 [91 S.Ct. 1904, at 1906, 29 L.Ed.2d 399]; Burns v. Richardson, 384 U.S., at 88-89 [86 S.Ct. at 1294-1295].” Gafney [Gaffney] v. Cummings, supra [412 U.S.] at 751 [93 S.Ct. at 2330] (emphasis added).

446 U.S. at 69 n.14, 100 S.Ct. at 1501 n.14.

In the case sub judice, it we apply the impact or effect theory as suggested by Justices Marshall, White, and Brennan, the evidence clearly shows that the multimem-ber district plan violates the equal protection clause of the Fourteenth Amendment as well as the Fifteenth Amendment. A similar result is reached when we apply the standards as delineated by Justice Stevens, when he said that “a proper test should focus on the objective effects of the political decision rather than the subjective motivation of the decisionmaker.” 446 U.S. at 90, 100 S.Ct. at 1512, Stevens, J., concurring. Justice Blackmun said that the proof in Mobile was adequate to support an inference of purposeful discrimination. 446 U.S. at 80, 100 S.Ct. at 1507, Blackmun, J., concurring. Following the reasoning of a majority of the justices of the United States Supreme Court in Mobile, the plaintiffs in the case sub judice should prevail.

If either of the Fourteenth or Fifteenth Amendments proscribe districts based on racial criteria, the crucial issue becomes one of proof. The courts must ascertain what may loosely be called the legislative intent. If we enunciate a test based solely on the de facto nature, or effect of the apportionment resolution, rather than the legislative purpose which generated its passage, the problem can appear to be delusively simple. Such an approach finds the constitutional evil in the fact that people bearing a given trait, such as race, find themselves grouped together after the passage of the apportionment resolution, rather than in the fact that the legislature has used a forbidden criterion. If the fact of racial homogeneity is regarded as the constitutional evil, the state legislature would be forced to employ racial criteria in drawing district lines so as to avoid a constitutionally impermissible, or even constitutionally suspect, grouping of members of the same race.

In Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935), and Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954), the Supreme Court determined that there was systematic exclusion of blacks from jury service through the use of a de facto “defects” test. Thus the pri-ma facie case was held to have been established solely on the strength of a comparison between the number of minority group members residing within a given community and the number of members of that group who had served on its juries. Such a showing established a prima facie case of systematic jury exclusion, and required the state either to rebut plaintiff’s evidence of the infrequency of selection of minority group members, or to suggest an alternative explanation of these facts. By showing that no members of the minority group had served on a jury, the plaintiffs created a clear inference of systematic exclusion.

In racial gerrymander challenges to apportionment, however, a showing even of 100% racial homogeneity in a challenged district still leaves the logical possibility that the situation may be explained on many other permissible bases. It necessarily follows that the legislative intent cannot be determined by a test based solely on the de facto nature, or effect of the apportionment resolution.

On the other hand, an inquiry into whether the legislature purposefully drew district lines on a racial basis need not be an exercise in metaphysics or group psychoanalysis. Requiring a plaintiff to disprove all other permissible bases for apportionment seems to impose on him the impossible task of rebutting all phantom bases on which the apportionment resolution might have been drawn. At some point the burden of introducing evidence to substantiate the claim of other permissible bases of the challenged apportionment must shift to the state. This point should be reached when the plaintiffs have established that race is the more likely basis than the more commonly known and expected bases of districting.

The commissioner in the case sub judice found that the blacks in the district were an identifiable class for Fourteenth or Fifteenth Amendment purposes; that candidates were allowed to reside anywhere in the district; that a majority vote in the primary election was required for nomination; that candidates qualify for a certain “place” on the ticket; and cumulative voting was prohibited.

Fair representation of voters in a legislative body requires, not only substantial equality of population within each district, but also the avoidance of district lines that weight the power of one race more heavily than another. The record clearly shows that the effect of the gerrymander in this case is to dilute the vote of the blacks. The evidence is sufficient to prove a prima facie case that the apportionment plan as adopted by the legislature was racially motivated insofar as multimember districts 57-61 are concerned.

The fact that we must prevent racial gerrymandering does not mean that we must prevent gerrymandering of any special-interest group, whether it be social, economic, or ideological. The Fifteenth Amendment of the Constitution says the right of citizens to vote should not be “abridged” on account of “race, color, or previous condition of servitude.” The blacks may be all Democrats or all Republicans, but if their identity is washed out of the system by the apportionment plan, the plan has a constitutional defect if it appears that it was adopted for that purpose.

Petitioners were not required to show the inner workings of the minds of the members of the legislature at the time of the adoption of the apportionment plan. The fact that the apportionment plan has the effect of diluting the vote of the blacks does not, in itself, constitute sufficient evidence to show a prima facie case. Considering all facts and circumstances as they exist, and did exist, in Pinellas County, it is my opinion that the multimember districts 57-61 abridge the right of the blacks to participate in government and to vote.

I would not hold that every racial or political group has a constitutional right to be represented in the state legislature. I do conclude that the multi — member districts 57-61 as designated and operated in Pinel-las County invidiously excluded blacks from effective participation in political life. The multimember district violates the Fourteenth and Fifteenth Amendments of the United States Constitution, and should be invalidated.

      . In In re Apportionment Law, Senate Joint Resolution 1305, we held that variable multi-member districts are not per se invalid, but we went on to explain that a multimember district, under the facts of a particular case, may operate to minimize or cancel out the voting strength of racial or political elements of the voting population.

      . References to page numbers of the transcript contained in the findings have been omitted.

       The Commissioner accepted Dr. Manning J. Dauer’s testimony as conclusive evidence from the individual who was the most influential in Florida reapportionment from 1955 to the present that the multimember District in Florida was not “rooted in racial discrimination.”

      . The plurality concedes that this issue concerning the necessity of showing purposeful discrimination in a fifteenth amendment setting has never been directly addressed by the Supreme Court. City of Mobile v. Bolden, 446 U.S. 55, 61, 100 S.Ct. 1490, 1497, 64 L.Ed.2d 47 (1980).

      . Id. at 103, 100 S.Ct. at 1518 (dissenting opinion by Marshall, J.).


source: Caselaw Access Project

author: PER CURIAM. ADKINS, Justice,

license: Public Domain

text:
    James Leroy PHIPPEN, Appellant, v. STATE of Florida, Appellee.
    No. 54664.
    Supreme Court of Florida.
    Oct. 23, 1980.

      Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, Florida, for appellee.
   PER CURIAM.

Appellant James Leroy Phippen was convicted on two counts of first — degree murder. After a jury recommendation of life imprisonment, the trial judge imposed two sentences of death. Jurisdiction vests in this Court pursuant to article V, section 3(b)(1), Florida Constitution. We affirm the convictions but vacate the sentences of death.

At 1:30 a. m. on the morning of October 5, 1977, a deputy sheriff discovered appellant slumped over the steering wheel of his automobile on the side of a road in Camden County, Georgia. Appellant was carrying a pistol in the waistband of his pants at the time. He was arrested, advised of his Miranda rights, and charged with driving while intoxicated and carrying a concealed weapon. At 11:00 a. m. the following morning, appellant appeared before Judge David M. Proctor and pleaded guilty to the drunken driving charge. After sentencing, appellant hesitated and asked to speak privately with the judge. When the room was cleared he confessed to having killed his mother and stepfather, James Corey and Mary Corey, in Putnam County, Florida. Judge Proctor immediately summoned the sheriff, who advised appellant of his Miranda rights. Appellant reiterated his story to the sheriff, explaining that a heated argument had erupted when he visited his parents’ home on the evening of October 4, and after his stepfather drew a knife, he was forced to shoot both his stepfather and mother.

Two days prior to his arrest in Georgia, while en route from Maryland to Crescent City, Florida, appellant picked up a hitchhiker in Virginia named Gary Martin. Phippen and Martin drove to Florence, South Carolina, where they spent the evening of October 3. Appellant consumed a considerable amount of alcohol during the two-day journey to Florida. On October 4 the pair stopped in Jacksonville, Florida, so that appellant could call his mother and Martin could arrange for his parents to pick him up in Palatka. Appellant returned visibly upset from the telephone call with his mother. Martin testified that appellant told him “that he was going to kill his mother and stepfather.” He later repeated the threat at least three or four times. After leaving Jacksonville, appellant and Martin drove to Shell Harbor to the house of James Smith, a friend of appellant. Appellant borrowed Smith’s .38 caliber target pistol and some ammunition for the alleged purpose of using it in a target match in Orlando the next day. The two left Smith’s house shortly thereafter and arrived at appellant’s home in Crescent City in the early evening. After Martin showered, appellant drove him to the Palatka bus station where Martin met his parents and proceeded with them to Tampa.

Glenn Phippen, appellant’s sixteen-year-old son, testified that on October 4 he accompanied his father to the post office to check on a money order appellant had been expecting. On the way back from the post office, appellant told Glenn that he was upset with Glenn’s grandmother and that he would like to kill her. Glenn disregarded the threat because his father was drunk, and he sometimes said things when drunk that he did not mean.

Dr. Schwartz, county medical examiner, performed autopsies on the victims. Mary Corey had been shot four times, James Corey, six times. Some of the bullets entered the victims’ bodies through the left flank and back. A lab analysis verified that the bullets recovered from the bodies had been fired from the gun seized from appellant in Georgia. That gun, capable of holding five bullets, was the same .38 caliber pistol appellant had borrowed from James Smith.

After the state rested, appellant took the stand and recounted his version of the events of October 4. He stated that he went to his parents’ home that evening at his mother’s request. Upon arriving, his stepfather angrily demanded that appellant pay a sixty-four-dollar bill that appellant had charged to his parents’ credit card account. Mr. Corey grew even more belligerent when appellant told him that he did not have the money. Appellant testified that Corey unsheathed a hunting knife and came after him with it; appellant, partially crippled, retreated but fell. When Corey was upon him, appellant drew his pistol, but before he could fire, Mrs. Corey stepped in front of her husband and was cut down by the fusillade. Mr. Corey, though wounded, continued his pursuit of appellant. Appellant explained that his stepfather’s persistent menacing advance forced him to quickly reload the revolver and discharge five more bullets into the body. When asked why he did not seek medical assistance for his mortally wounded parents, appellant explained that he was confused.

On May 12, 1978, a jury convicted appellant of first-degree murder of James and Mary Corey. During the sentencing phase of the trial the jury recommended life imprisonment. The trial judge, however, finding two aggravating circumstances and no mitigating circumstances, overrode the jury’s recommendation and sentenced appellant to death.

Appellant challenges his convictions and sentences on four grounds. He first contends that there was insufficient evidence to establish the premeditation necessary to a conviction for first-degree murder. He proceeds by citing Mayo v. State, 71 So.2d 899 (Fla.1954), for the proposition that circumstantial evidence will not sustain a conviction unless it is inconsistent with any reasonable hypothesis of innocence. Accord, Davis v. State, 90 So.2d 629 (Fla.1956). In applying the standard, the version of events related by the defense must be believed if the circumstances do not show that version to be false. Mayo v. State, Holton v. State, 87 Fla. 65, 99 So. 244 (1924).

Although the case against appellant is wholly circumstantial, we are satisfied that the evidence proves appellant’s guilt beyond a reasonable doubt. In Spink-ellink v. State, 313 So.2d 666 (Fla.1975), this Court held that premeditation, like other factual circumstances, may be proven by circumstantial evidence. Among the circumstances from which premeditation may be inferred are such matters as (1) previous difficulties between the parties, (2) the manner in which the homicide was committed, and (3) the nature and manner of the wounds inflicted. Id. at 670 (quoting from Larry v. State, 104 So.2d 352, 354 (Fla. 1958)). In this case we have uncontrovert-ed testimony that within forty-eight hours of the killings, appellant repeated at least four or five times that he was going to or would like to kill his parents. There is evidence that shortly after a heated telephone call with his mother, appellant borrowed a pistol which he took with him to his parents’ home and which, indeed, was later to become the instrument of death. The evidence at the scene of the crime reveals that Mr. Corey was shot six times and Mrs. Corey four times, even though appellant claims to have shot his mother accidentally. Such a barrage, of course, required appellant to reload his pistol, leaving one to wonder how a partially crippled man could hold a supposedly vigorous attacker at bay with one hand, and deftly reload his weapon with the other. Moreover, medical testimony demonstrates that some of the bullets entered the victims’ bodies from the back. Taken as a whole, the evidence was more than sufficient to establish that appellant murdered his parents with premeditated design. In light of his threatening statements and actions before the crime, and the manner in which the Coreys were killed, appellant’s plea of self-defense simply proves too much.

Appellant next maintains that the trial judge misinstructed the jury on manslaughter, thereby fundamentally prejudicing his right to a fair trial. The record disclosed no such error. The judge gave the jury standard instructions which accurately and comprehensively reflected the law of manslaughter. Similarly unavailing is appellant’s argument that he was entitled to an instruction on an unnecessary killing to prevent an unlawful act under section 782.-11, Florida Statutes (1977). The exact argument was considered but rejected by this Court in State v. Carrizales, 356 So.2d 274 (Fla.1978).

With regard to the sentencing phase of the trial, appellant’s contention that a sentence of death imposed by a trial court after a jury recommendation of life constitutes double jeopardy was recently put to rest in Douglas v. State, 373 So.2d 895 (Fla.1979).

We are less sanguine, however, about the actual sentences imposed by the trial court in this case. The guiding principle which the trial judges of this state are bound to follow is found in Tedder v. State, 322 So.2d 908 (Fla.1975), where we held that the facts suggesting a sentence of death over a jury recommendation of life “should be so clear and convincing that virtually no reasonable person could differ.” Id. at 910. Here the Court found two aggravating circumstances applicable to appellant, that the murders were committed for pecuniary gain, and that the murders were especially heinous, atrocious, or cruel. In view of the well-known fact that aggravating circumstances must be proven beyond a reasonable doubt, the finding that the murders were committed for pecuniary gain is patently erroneous. • There was evidence that the argument between appellant and Mr. Corey was precipitated by the sixty-four-dollar credit card charge, but there was absolutely no evidence indicating that appellant murdered his parents in order to relieve himself of that debt. Even assuming the propriety of the finding that the murders were especially heinous, atrocious, or cruel, a question not without some doubt, the facts suggesting a sentence of death in this case were not so compelling as to justify overriding the jury’s recommendation of life imprisonment.

Accordingly, the convictions of murder in the first-degree are affirmed, the sentences of death are vacated, and this cause is remanded to the trial court for imposition of a sentence of life imprisonment without eligibility for parole until the expiration of twenty-five years.

It is so ordered.

SUNDBERG, C. J., and OVERTON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.

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

ADKINS, Justice,

concurring in part, dissenting in part.

I concur in that part of the decision which affirms the conviction of the defendant. I dissent from that part of the decision which vacates the sentence of death and remands it to the trial' court for resen-tencing.

Tedder v. State, 322 So.2d 908 (Fla.1975), does not require that the judge consider additional evidence in overriding the jury nor entertain any circumstances which were not considered by the jury. If the facts suggesting a sentence of death are so clear and convincing that virtually no reasonable person could differ, then the judge should override the jury recommendation of life imprisonment.

The defendant executed his natural mother and stepfather while they were in the confines of their own home. I think it clearly appears from the evidence that the victims fell to the floor when they were first shot by the defendant. As the elderly couple lay on the floor of their living room, bleeding from wounds, defendant stood over them, firing time and time again at their backside until the cylinder of the pistol was empty’. He then opened the cylinder, reached into his pocket for more ammunition and emptied the cylinder again into the bodies until he heard the click of an empty cylinder. He left their bodies riddled with bullet holes resembling pieces of swiss cheese. If he had called an ambulance, he might have saved their lives. This was a grotesque and unnecessary elimination of two human beings. Certainly these facts suggest a sentence of death and they are so clear and convincing that virtually no reasonable person could differ. Following the pronouncement of this Court in Tedder v. State, supra, I would affirm the imposition of the death sentence.

In several other cases we have affirmed the death sentence where the trial judge rejected the jury recommendation and sentenced the defendant to death. See Barclay v. State, 343 So.2d 1266 (Fla.1977); Hoy v. State, 353 So.2d 826 (Fla.1977); Dobbert v. State, 328 So.2d 433 (Fla.1976); Douglas v. State, 328 So.2d 18 (Fla.1976); Sawyer v. State, 313 So.2d 680 (Fla.1975); Gardner v. State, 313 So.2d 675 (Fla.1975).

BOYD, J., concurs.

      . § 921.141(5)(f), Fla.Stat. (1977).

      . § 921.141(5)(h), Fla.Stat. (1977).

        . State v. Dixon, 283 So.2d 1, 9 (Fla.1973).


author: ALDERMAN, Justice.

text:
    Merle E. BESETT, Irene D. Besett, and C. Joe Czerwinski, Petitioners, v. Robert K. BASNETT and Barbara L. Basnett, Respondents.
    No. 57201.
    Supreme Court of Florida.
    Oct. 23, 1980.
    Rehearing Denied Dec. 22, 1980.

      C. Guy Batsel and Leo Wotitzky of Wo-titzky, Wotitzky, Johnson, Mandell & Bat-sel, Punta Gorda, and Charles J. Cheves, of Cheves & Rapkin, Venice, for petitioners.
    Michael R. Karp of Wood, Whitesell & Karp, Sarasota, for respondents.
   ALDERMAN, Justice.

The petitioners, Mr. and Mrs. Besett and Mr. Czerwinski, the appellees in the district court and the defendants in the trial court, seek review of the district court’s decision in Basnett v. Besett, 371 So.2d 705 (Fla.2d DCA 1979). In this case, the district court found that a fraudulent misrepresentation complaint stated a cause of action even though the plaintiffs failed to allege that they had investigated the truth of the defendants’ misrepresentations. We accept jurisdiction on the basis of conflict with Potakar v. Hurtak, 82 So.2d 502 (Fla.1955), approve the decision of the district court; and hold that the plaintiffs’ fraudulent misrepresentation complaint does state a cause of action.

The respondents, Mr. and Mrs. Basnett, the appellants in the district court and the plaintiffs in the trial court, were Connecticut residents interested in resettling in Florida. They obtained information about Redfish Lodge from its owners, the Besetts, and the Besetts’ real estate broker, Czer-winski. As prospective buyers, they made several trips to Florida to inspect the lodge. They allege that the sellers misrepresented the size of the land offered for sale to be approximately 5.5 acres, when, in fact, the sellers knew it to be only 1.44 acres. They allege that the sellers knowingly misrepresented the amount of the lodge’s business for 1976 to be $88,000 and that the roof on a building was brand new, when, in fact, the business income was substantially lower and the roof was not new and leaked. They also allege the defendants misrepresented to them the availability of additional land for expansion. Relying on these misrepresentations, which they allege were made to induce them to buy, they bought the lodge and the land.

Upon the motion of the defendants, the trial court, relying on Potakar v. Hurtak, dismissed the complaint for failing to state a cause of action. The district court reversed on the authority of its decision in Upledger v. Vilanor, Inc., 369 So.2d 427 (Fla.2d DCA 1979), cert. denied, 378 So.2d 350 (Fla.1979). These cases represent the two divergent lines of authority on this issue which have developed in Florida.

Potakar v. Hurtak was also a fraudulent misrepresentation action. Potakar alleged that he had asked Hurtak if the previous lessees of a restaurant had made a profit, and Hurtak replied they had, even though he knew the previous lessees had lost money for several years. Potakar alleged the misrepresentations were made to defraud, deceive, and influence him to lease the business. In affirming the trial court’s dismissal of the complaint for failure to state a cause of action, the court observed that there were “no allegations as to the past profits, no showing as to the right of the plaintiff to rely on past statement, no fact stated as to the diligence on the plaintiff’s part in investigating, or failing to investigate such facts, or how he was prevented from investigating the past profits of the said business.” 82 So.2d at 503. The Court looked to 23 Am.Jur., Fraud and Deceit § 155, at 960-61 (1940), for a statement of the general rule that “a person to whom false representations have been made is not entitled to relief because of them if he might readily have ascertained the truth by ordinary care and attention, and his failure to do so was the result of his own negligence.” 82 So.2d at 503. The Court concluded that Potakar’s complaint' did not state a cause of action.

The district court, in Upledger, reached a different result. In that case, Upledger, who was purchasing an apartment building from Vilanor, relied upon misrepresentations made by Vilanor concerning the amounts for which the apartments rented and the duration of the leases. Upledger admitted that he did not undertake an independent investigation, and he claimed that he would not have completed the purchase if he had known the true facts. In reversing the trial court’s dismissal of Upledger’s complaint, the district court, recognizing that there are conflicting lines of authority, concluded:

[W]hen a specific false statement is knowingly made and reasonably relied upon, we choose to align ourselves with the growing body of authorities which holds that the representee is not precluded from recovery simply because he failed to make an independent investigation of the veracity of the statement.. ..

369 So.2d at 430.

The district court, we believe, made the correct choice. A person guilty of fraudulent misrepresentation should not be permitted to hide behind the doctrine of caveat emptor. The principle of law which we adopt is expressed in Sections 540 and 541 of Restatement (Second) of Torts (1976) as follows:

§ 540. Duty to Investigate.
The recipient of a fraudulent misrepresentation of fact is justified in relying upon its truth, although he might have ascertained the falsity of the representation had he made an investigation. Comment:
a. The rule stated in this Section applies not only when an investigation would involve an expenditure of effort and money out of proportion to the magnitude of the transaction, but also when it could be made without any considerable trouble or expense. Thus it is no defense to one who has made a fraudulent statement about his financial position that his offer to submit his books to examination is rejected. On the other hand, if a mere cursory glance would have disclosed the falsity of the representation, its falsity is regarded as obvious under the rule stated in § 541.
b. The rule stated in this Section is applicable even though the fact that is fraudulently represented is required to be recorded and is in fact recorded. The recording acts are not intended as a protection for fraudulent liars. Their purpose is to afford a protection to persons who buy a recorded title against those who, having obtained a paper title, have failed to record it. The purpose of the statutes is fully accomplished without giving them a collateral effect that protects those who make fraudulent misrepresentations from liability.
§ 541. Representation Known to Be or Obviously False.
The recipient of a fraudulent misrepresentation is not justified in relying upon its truth if he knows that it is false or its falsity is obvious to him.
Comment:
a. Although the recipient of a fraudulent misrepresentation is not barred from recovery because he could have discovered its falsity if he had shown his distrust of the maker’s honesty by investigating its truth, he is nonetheless required to use his senses, and cannot recover if he blindly relies upon a misrepresentation the falsity of which would be patent to him if he had utilized his opportunity to make a cursory examination or investigation. Thus, if one induces another to buy a horse by representing it to be sound, the purchaser cannot recover even though the horse has but one eye, if the horse is shown to the purchaser before he buys it and the slightest inspection would have disclosed the defect. On the other hand, the rule stated in this Section applies only when the recipient of the misrepresentation is capable of appreciating its falsity at the time by the use of his senses. Thus a defect that any experienced horseman would at once recognize at first glance may not be patent to a person who has had no experience with horses.

A person guilty of fraud should not be permitted to use the law as his shield. Nor should the law encourage negligence. However, when the choice is between the two-fraud and negligence-negligence is less objectionable than fraud. Though one should not be inattentive to one’s business affairs, the law should not permit an inattentive person to suffer loss at the hands of a misrepresenter. As the Michigan Supreme Court said many years ago:

There may be good, prudential reasons why, when I am selling you a piece of land, or a mortgage, you should not rely upon my statement of the facts of the title, but if I have made that statement for the fraudulent purpose of inducing you to purchase, and you have in good faith made the purchase in reliance upon its truth, instead of making the examination for yourself, it does not lie with me to say to you, “It is true that I lied to you, and for the purpose of defrauding you, but you were guilty of negligence, of want of ordinary care, in believing that I told the truth; and because you trusted to my word, when you ought to have suspected me of falsehood, I am entitled to the fruits of my falsehood and cunning, and you are without a remedy.”

Bristol v. Braidwood, 28 Mich. 191, 196 (1873).

We hold that a recipient may rely on the truth of a representation, even though its falsity could have been ascertained had he made an investigation, unless he knows the representation to be false or its falsity is obvious to him. We recede from Potakar v. Hurtak insofar as it is inconsistent with our present holding, and we disapprove all other decisions inconsistent with our holding in this case.

As was the case in Upledger, the petitioners in this case, as owners of the property being sold, had superior knowledge of its size, condition, and business income. As prospective purchasers, the respondents were justified in relying upon the representations that were made to them although they might have ascertained the falsity of the representations had they made an investigation. From the complaint, it does not appear that the respondents knew that the alleged misrepresentations were false, nor can we conclude from that complaint as a matter of law that the misrepresentations were obviously false.

Accordingly, we approve the decision of the district court.

It is so ordered.

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

ADKINS, J., dissents.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. David J. FULLER, Respondent.
    No. 58296.
    Supreme Court of Florida.
    Oct. 23, 1980.

      John B. Root, Jr., Branch Staff Counsel, Orlando, and G. Lynn Kilpatrick, Asst. Staff Counsel, Tallahassee, for complainant.
    David J. Fuller, in pro. per.
   PER CURIAM.

This is an original proceeding brought by The Florida Bar against respondent David J. Fuller, a member of The Florida Bar, charging respondent with neglecting a legal matter entrusted to him and failing to carry out a contract of employment entered into with a client for professional services.

The referee found that two Canadian businessmen employed respondent to pursue their claims against a Florida corporation, and forwarded to respondent a $1,100 retainer. Respondent accepted the retainer but thereafter failed to effectively communicate with his clients and did not proceed with the action as originally agreed. Subsequent to the institution of the grievance proceedings, respondent indicated his willingness to return the retainer but had not done so as of the date of the referee’s hearing. On these facts, the referee recommended that respondent be found guilty of violating Disciplinary Rules 6-101(A)(3) and 7-101(A)(2) and his oath as an attorney. The referee also recommended that “respondent be suspended for a fixed period of one (1) month, thereafter until he shall prove his rehabilitation, and for an indefinite period until he shall (1) make restitution in the amount of $1,100.00 and (2) pay the cost of this proceeding, as provided in Rule 11.10(4).”

We note that respondent has no prior disciplinary record and that the referee believed respondent to be genuinely remorseful. We approve the referee’s findings but modify the discipline by suspending respondent for one month, with automatic reinstatement conditional upon respondent’s restitution of the $1,100 and payment of this proceeding’s cost. The suspension shall be effective November 24, 1980, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that respondent shall not accept any new business. In the event restitution and costs are not paid within one month from the date of this order, respondent shall remain suspended and be reinstated only upon proof of rehabilitation.

Costs are assessed in the amount of $178.90.

It is so ordered.

SUNDBERG, C. J., and OVERTON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.


author: ENGLAND, Justice.

text:
    Althea G. BISHOP and William J. Bishop, Sr., as individuals and as parents and next friends of Patti Robin Bishop, a minor, Petitioners, v. FLORIDA SPECIALTY PAINT COMPANY, a Florida Corporation, and J. D. MacRae, Jr., Respondents.
    No. 58372.
    Supreme Court of Florida.
    Oct. 23, 1980.

      Marion R. Shepard of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for respondents.
    Larry Klein, West Palm Beach, for The Academy of Florida Trial Lawyers, amicus curiae.
   ENGLAND, Justice.

The present suit arose from the crash of a small plane en route from Jacksonville, Florida, to Beech Mountain, North Carolina, for a Fourth of July weekend. The Bishop family, guest passengers in the plane, brought suit against Florida Specialty Paint Company (the plane’s lessee) and J. D. Mac-Rae (the plane’s pilot and president of Florida Specialty Paint), alleging negligent operation of the aircraft. All relevant parties are Jacksonville residents and the holiday trip began, and was to end, in Jacksonville.

Upon motion, the trial court granted summary judgment for MacRae and Florida Specialty Paint, holding that under Florida conflicts law all substantive issues of the case were to be determined under the law of the place where the injury occurred-South Carolina. Florida law allows recovery by airplane guest passengers upon a showing of ordinary negligence; South Carolina’s aviation guest statute requires a showing of intentional misconduct or recklessness. The Bishops concede that they cannot meet the South Carolina standard for recovery.

The District Court of Appeal, First District, affirmed the ruling of the trial court but certified the following question for our consideration:

Does the lex loci delicti rule govern the rights and liabilities of the parties in tort actions, precluding consideration by the Florida courts of other relevant considerations, such as the policies and purposes underlying the conflicting laws of a foreign jurisdiction where the tort occurred, and the relationship of the occurrence and of the parties to such policies and purposes?

Bishop v. Florida Specialty Paint Co., 377 So.2d 767, 768 (Fla.1st DCA 1979).

The question, as posed, invites us to recede from prior decisions of this Court which have stated that the substantive law applicable to personal injury actions is the law of the state where the injury occurred-a conflict of laws rule sometimes referred to by its Latin pseudonym, lex loci delicti. E. g., Hopkins v. Lockheed Aircraft Corp., 201 So.2d 743 (Fla.1967). As stated in Hopkins, on rehearing, this rule promotes our interest in consistency and stability by application of a stable and objective standard for choice of law determinations. On the other hand, there are reasons for adopting a more flexible rule, particularly in the case of aviation accidents. In the present case, for instance, the weekend trip was to begin and end in Florida, plaintiffs and defendants are all Florida residents, and the host-guest relationship between the parties arose in Florida. The relationship of South Carolina to the personal injury action is limited to the happenstance of the plane coming into contact with South Carolina soil after developing engine trouble in unidentified airspace.

Instead of clinging to the traditional lex loci delicti rule, we now adopt the “significant relationships test” as set forth in the Restatement (Second) of Conflict of Laws §§ 145-146 (1971):

§ 145. The General Principle
(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties'is centered.

These contacts are to be evaluated according to their relative importance with respect to the particular issue.

§ 146. Personal Injuries
In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.

(Emphasis supplied.)

The conflicts theory set out in the Restatement does not reject the “place of injury” rule completely. The state where the injury occurred would, under most circumstances, be the decisive consideration in determining the applicable choice of law. Indeed, the rationale for a strict lex loci de-licti rule is also reflected in the same Restatement’s section 6, where “certainty, predictability and uniformity of result,” and “ease in the determination and application of the law to be applied” are cited as major factors in determining the proper choice of law. In contrast to the inflexible place of injury rule, however, the Restatement rule recognizes that the state where the injury occurred may have little actual significance for the cause of action. Other factors may combine to outweigh the place of injury as a controlling consideration, making the determination of applicable law a less mechanical, and more rational, process.

For the reasons expressed, we answer “no” to the certified question and now recede from the inflexible lex loci delicti rule. In doing so we join with numerous other state courts which have adopted the more flexible, modern approach to this aspect of conflicts of law.

It is so ordered.

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

BOYD, J., dissents.

      . Section 6 of the Restatement (Second) lists the following factors as important choice of law considerations in all areas of law:
      (a) the needs of the interstate and international systems,
      (b) the relevant policies of the forum,
      (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
      (d) the protection of justified expectations,
      (e) the basic policies underlying the particular field of law,
      (f) certainty, predictability and uniformity of result, and
      (g) ease in the determination and application of the law to be applied.
      Restatement (Second) of Conflict of Laws § 6 (1971).

      . Twenty five states and the District of Columbia have already rejected the place of injury rule and adopted one of several “multiple factors” theories. Armstrong v. Armstrong, 441 P.2d 699 (Alaska 1968); Schwartz v. Schwartz, 103 Ariz. 562, 447 P.2d 254 (1968); Wallis v. Mrs. Smith’s Pie Co., 261 Ark. 622, 550 S.W.2d 453 (1977); Reich v. Purcell, 67 Cal.2d 551, 432 P.2d 727, 63 Cal.Rptr. 31 (1967); First Nat’l Bank v. Rostek, 182 Colo. 437, 514 P.2d 314 (1973); Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593 (1970); Fuerste v. Bemis, 156 N.W.2d 831 (Iowa 1968); Arnett v. Thompson, 433 S.W.2d 109 (Ky.1968); Jagers v. Royal Indem. Co., 276 So.2d 309 (La.1973); Beaulieu v. Beaulieu, 265 A.2d 610 (Me.1970); Pevoski v. Pevoski, 371 Mass. 358, 358 N.E.2d 416 (1976); Milkovich Saari, 295 Minn. 155, 203 N.W.2d 408 (1973); Mitchell v. Craft, 211 So.2d 509 (Miss. 1968); Kennedy v. Dixon, 439 S.W.2d 173 (Mo.1969); Clark v. Clark, 107 N.H. 351, 222 A.2d 205 (1966); Mellk v. Sarahson, 49 N.J. 226, 229 A.2d 625 (1967); Babcock v. Jackson, 12 N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S.2d 743 (1963); Issendorf v. Olson, 194 N.W.2d 750 (N.D.1972); Brickner v. Gooden, 525 P.2d 632 (Okla.1974); Casey v. Manson Constr. & Eng’r Co., 247 Or. 274, 428 P.2d 898 (1967); Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964); Woodward v. Stewart, 104 R.I. 290, 243 A.2d 917, cert. dismissed, 393 U.S. 957, 89 S.Ct. 387, 21 L.Ed.2d 371 (1968); Gutierrez v. Collins, 583 S.W.2d 312 (Tex.1979); Johnson v. Spider Staging Corp., 87 Wash.2d 577, 555 P.2d 997 (1976); Wilcox v. Wilcox, 26 Wis.2d 617, 133 N.W.2d 408 (1965); Gaither v. Meyers, 404 F.2d 216 (D.C.Cir.1968).


text:
    Joseph and Lavera ACCURSIO et al., Petitioners, v. William T. MAYO, Gerald L. Gunter, Joseph P. Cresse, and John R. Marks, III, as and constituting the Florida Public Service Commission, Respondents.
    No. 58853.
    Supreme Court of Florida.
    Oct. 23, 1980.
    Joseph S. Marcus, Homestead, and Harold Mendelow of Solomon & Mendelow, Miami Springs, for petitioners.
    Arthur C. Canaday and Joseph A. McGlothlin of the Florida Public Service Commission, Tallahassee, for respondents.
    William D. Moore of Bryant, Miller & Olive, Tallahassee, for Florida Power and Light Co.; and Royall P. Terry, Jr., City Atty., Homestead, for City of Homestead, respondents.
   PER CURIAM.

Denied.

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

ADKINS, Acting C. J., dissents.


text:
    THE FLORIDA BAR, Complainant, v. Thomas K. McKEE, Jr., Respondent.
    No. 59658.
    Supreme Court of Florida.
    Oct. 23, 1980.
    John A. Weiss, Bar Counsel, Tallahassee, for complainant.
    Michael T. Callahan, Tallahassee, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea to violations of Disciplinary Rule 6— 101(A)(3) and 7-101(A)(2) of the Code of Professional Responsibility of The Florida Bar. We approve the Petition, and Respondent, Thomas K. McKee, Jr., is hereby reprimanded and suspended from the practice of law for a period of two (2) years effective November 24, 1980, thereby giving Respondent thirty (30) days to close out his practice and take the necessary steps to protect his clients, and thereafter until he proves rehabilitation through reinstatement proceedings and until he passes The Florida Bar examination. Respondent is to accept no new clients from the date of this order. The publication of this opinion in Southern Reporter shall serve as Respondent’s public reprimand.

Costs in the amount of $453.50 are hereby taxed against the Respondent.

It is so ordered.

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

ENGLAND, J., dissents.


author: McDONALD, Justice.

text:
    Juanita REDDING, Petitioner, v. COBIA BOAT CO., Respondent.
    No. 56798.
    Supreme Court of Florida.
    Oct. 23, 1980.
    David M. Hammond of Meyers, Mooney & Adler, Orlando, for petitioner.
    Michael A. Miller and Donna L. Bergh of Walker & Buckmaster, Orlando, for respondent.
   McDONALD, Justice.

We have before us a petition for certiora-ri to review an order of the Industrial Relations Commission reversing the order of a judge of industrial claims. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. (1972). We find that the IRC departed from the essential requirements of law and, therefore, reverse.

Redding installed vinyl interiors in boats manufactured by Cobia and had been employed by that company for eight years. In March 1977 a flash fire ignited highly flammable glue used in the installation process and caused first- and second-degree burns to Redding’s face, neck, and arms. In January 1978 a JIC ordered that Redding be paid temporary total disability benefits and that she be furnished further medical and psychiatric treatment as needed. At a subsequent hearing in June 1978 the JIC awarded continuing temporary total benefits, finding that Redding was genuinely afraid of returning to work for Cobia and that she had made a bona fide effort to find other employment. After reviewing the record, two IRC commissioners concluded that the order was not supported by competent substantial evidence and reversed. Cobia Boat Co. v. Redding, IRC Order 2-3795 (Apr. 25, 1979).

After completing our own review of the record we agree with Commissioner Carroll’s conclusion (in dissent) that competent substantial evidence supported the JIC’s order. In his testimony Redding’s psychiatrist stated that, although he recommended that she seek part-time employment, he did not know how Redding would tolerate returning to work and that, in any case, she would need at least three to six months of additional psychiatric care. Redding had been offered several part-time jobs at Co-bia, but testified that she was afraid-because of her previous injury there-to return to the boat company. She also testified as to her efforts to find other employment.

When psychiatric problems are involved, the JIC’s opportunity to view a claimant and to weigh subjective factors impeding the capacity to return to gainful employment must be kept in mind when determining the correctness of an award. In reviewing workmen’s compensation cases for factual sufficiency, it is the duty of both this Court and of the IRC to determine only if a JIC’s order is supported by competent substantial evidence; reweighing the evidence is not a proper function. Howard v. Green’s Tractor Co., 290 So.2d 46 (Fla.1973).

We find the JIC’s award of temporary total disability benefits adequately supported by the record on the facts of this case and that, by reversing that award, the IRC departed from the essential requirements of law. Accordingly, the IRC order is quashed, and the order of the JIC is reinstated.

It is so ordered.

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

ENGLAND and ALDERMAN, JJ., dissent.


text:
    THE FLORIDA BAR, Complainant, v. James W. MATTHEWS, Respondent.
    No. 58113.
    Supreme Court of Florida.
    Oct. 23, 1980.
    Jacquelyn S. Plasner, Asst. Staff Counsel, Miami, for complainant.
    William A. Meadows, Jr. of Rollins, Pee-ples & Meadows, South Miami, for respondent.
   PER CURIAM.

This disciplinary proceeding against James W. Matthews is before us on complaint of The Florida Bar and report of the referee. No petition for review has been filed.

The referee made the following findings of fact as to Matthews’ misconduct:

FINDINGS OF FACT-COUNT I
1. In June 1978, Gladstone Williams, a client of Respondent, entrusted $78,300.00 to Respondent for purchase of homes and business ventures. In October 1978, Williams bought a home but Respondent’s trust account check was dishonored for insufficient funds. Respondent subsequently paid the sellers the purchase price, leaving a balance of $34,773.00 of Williams’ money entrusted to Respondent. After numerous unsuccessful demands by Williams, Williams obtained a civil judgment against Respondent for $50,773.00, which represented the balance of $34,773.00 of trust funds, punitive damages in the amount of $10,000 and attorney fees of $6,000. As of the date of this Report, no portion of said monies has been paid or reimbursed to [this] client.
2. Respondent, as answers and affirmative defenses, alleges that Internal Revenue Service and/or the Capital Bank placed “unauthorized holds” on his trust account. The clear and convincing evidence shows otherwise, but in any event, $15,000 of such trust funds were released but did not find their way to Mr. Williams, who had authorized no withdrawals without his consent. Respondent further claims he “invested foolishly” Williams’ money but cannot substantiate any such investment.
3. Respondent converted to his own use the unaccounted-for Williams’ monies which were withdrawn from Respondent’s trust account by checks payable to himself.
4. Respondent’s conversion and subsequent conduct towards his client caused severe hardship and injury to the client, including but not limited to:
A. loss of at least $34,773.00 plus interest to a man of modest means,
B. necessity of hiring another attorney to straighten out Farrow’s house sale and to obtain a judgment against Respondent.
FINDINGS OF FACT-COUNT II
1. Respondent represented Joseph Kelley in regard to Mr. Kelley’s one-half interest of a home to his ex-wife, Matlon Kelley.
2. Respondent received a total of $5,700.00 from the attorney for ex-wife, from which sum Respondent distributed $2,200.00 to Kelley, but refused for almost a year to distribute the balance of $3,300.00 to Kelley, even though the client made numerous demands on Respondent for the money.
3. Kelley further gave Respondent very specific instructions as to the date and the manner of the delivery of the deed evincing the one-half interest and of the time of relinquishing possession of the house by Kelley, all of which were disregarded by Respondent.
4. Respondent admitted misappropriating Kelley’s funds which had been entrusted to him and were used for Respondent’s use and benefit.
5. Respondent’s conduct caused serious damage and injury to Kelley in having to wait a year for the money and in having to make other living arrangements.
FINDINGS OF FACT-COUNT III
1. Respondent, as counsel for the Veterans Administration, closed the sale of 3 properties for the VA in March 1979.
2. Three checks issued on his trust account payable to the VA in October 1978-January 1979 as proceeds from the sales weré returned for insufficient funds. In March 1979, Respondent issued three other checks to cover the dishonored checks.
3. In December 1978, Respondent failed to remit to the VA the sum of $1,253.96 on [the] Brown closing and in February 1979, he failed to remit $1,031.64 to the VA on [the] Mondestin closing. In November 1979 Respondent made restitution on [the] Mondestin closing but to date no restitution has been made to the VA on the Brown closing.
4. Again Respondent’s allegation that the dishonoring of these checks was due to any improper levy by IRS is without merit.
5. Obviously, such conduct by Respon- ■ dent caused damage and injury to the VA, as custodian of the public’s monies. The referee recommends that Matthews

be found guilty of violating The Florida Bar Integration Rule, article XI, Rule 11.-02(4), and The Florida Bar Code of Professional Responsibility, Disciplinary Rules 6-101(A)(3), 7-101(A)(2) and (3), and 9-102(B)(1), (2), (3), and (4) and that he be disbarred.

We have reviewed the record and agree with the referee’s findings and recommendations of guilt. We also agree that Matthews’ reprehensible misconduct warrants disbarment.

Accordingly, James W. Matthews is hereby disbarred from the practice of law in Florida, effective immediately. Matthews is ordered to pay the costs of these proceedings in the amount of $1,221.50.

It is so ordered.

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

      . Rule 11.02(4) provides in pertinent part:
      (4) Trust funds and fees. Money or other property entrusted to an attorney for a specific purpose, including advances for costs and expenses, is held in trust and must be applied only to that purpose. . . .

      . DR 6 — 101 (A)(3) provides:
      (A) A lawyer shall not:
      (3) Neglect a legal matter entrusted to him.

      . DR 7-101(A)(2) and (3) provides in pertinent part:
      (A) A lawyer shall not intentionally:
      (2) Fail to carry out a contract of employment entered into with a client for professional services, . . .
      (3) Prejudice or damage his client during the course of professional relationship, . ..

      .DR 9-102(B)(l), (2), (3), and (4) provides:
      (B) A lawyer shall:
      (1) Promptly notify a client of the receipt of his funds, securities, or other properties.
      (2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.
      (3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.
      (4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.