author: PER CURIAM.

text:
    Nollie Lee MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 55716.
    Supreme Court of Florida.
    Sept. 9, 1982.
    Rehearing Denied Nov. 4, 1982.
    Richard L. Jorandby, Public Defender, and Jerry L. Schwarz and Jon May, Asst. Public Defenders, Fifteenth Judicial Circuit, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Nollie Lee Martin was convicted of murder in the first degree of Patricia Greenfield. The jury recommended that the death sentence be imposed, and, after weighing the aggravating and mitigating circumstances, the trial court imposed a sentence of death. Martin’s conviction and sentence are before this Court on direct appeal pursuant to article V, section 3(b)(1), Florida Constitution. We have reviewed the record and considered the ten points on appeal and affirm the conviction and sentence.

Patricia Greenfield was an employee of a Cumberland Farm Food Store in Delray Beach. On June 25, 1977 two men entered the store, robbed .it, and abducted Ms. Greenfield. Her body was discovered a few days later on a garbage dump. Investigation led to the arrest of Martin and Gary Forbes for the robbery and murder.

The trial judge correctly summarized additional facts as follows:

Gary Forbes is an 18-year old high school dropout, recently married, with no criminal record and several juvenile referrals. He was employed at his father’s service station with Nollie Lee Martin who had just been paroled from the State of North Carolina several months earlier (after serving almost five years of a sen--fence of eighteen years to thirty years) for the second degree arson slaying of three (3) human beings.
Gary Forbes tendered a plea of guilty to the Court which was supported by the concurrence of the family of the victim, the police agency involved and the State Attorney’s Office. The Court accepted that plea and the defendant Forbes has now been sentenced pursuant to his plea bargain. That matter is covered in a separate order.
The victim was a college student who was temporarily employed in a convenience store. The two men robbed her at knife point of approximately ninety (90) dollars and two cases of beer shortly before closing. They drove her back to Martin’s apartment and blindfolded her along the way with Martin’s shirt. The sworn testimony and confessions indicate that each man committed forcible sexual battery on the victim at the apartment.
The victim was transported away from the apartment, still blindfolded and under the assurances that she would be released at a remote area. After driving some distance in a rather aimless fashion, the automobile arrived at the vicinity of the Lantana Dump and the defendant, Nollie Lee Martin, walked the victim away from the view of Forbes. According to Forbes, the defendant, Martin, stated that he attempted to strangle or suffocate the victim with the use of a short piece of rope but that she recovered her breath each time that he thought she had succumbed. He then stabbed her several times in the throat. The autopsy revealed that she died of these stab wounds and suggests at least an inference that there was some struggle before the death strokes were administered.

Martin confessed to the killing on July 4 and again on July 11. His defense at trial was insanity. At the sentencing hearing he sought the benefit of the mental mitigating factors of being under the influence of extreme mental and emotional disturbance and that his capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of law was substantially impaired. He had numerous psychiatric examinations, and conflicting opinions ensued from the doctors examining him. One considered him insane at the time of the murder, but three opined otherwise. At sentencing two felt that he met the statutory mental mitigating circumstances. The reconciliation of these conflicts was the responsibility of the jury and, to the extent it concerned his sentencing responsibilities, the trial judge. When there is competent substantial evidence to support the conclusion reached, their determination is final. Tibbs v. State, 397 So.2d 1120 (Fla.1981); Clark v. State, 379 So.2d 97 (Fla.1979), cert. denied, 450 U.S. 936, 101 S.Ct. 1402, 67 L.Ed.2d 371 (1981); McNeil v. State, 104 Fla. 360, 139 So. 791 (1932).

On appeal Martin raises ten issues for our consideration. Four deal with his in-custody statements, one challenges the exclusion of three jurors because they would not impose the death sentence under any circumstance, one challenges the exclusion of certain jail records, three deal with allegedly improper jury instructions, and one challenges the imposition of the death sentence. After reviewing the record, we find no merit in any of the points raised and do not find that any issue warrants or requires specific discussion. We have independently searched the record for error and have found none.

Martin was fully and properly informed as to his rights, which he freely waived in giving the two statements. The presence of the prosecutor in the interrogation room was proper, and the taped statement and testimony clearly show that Martin was not misled or promised anything for giving his statement. The court properly excluded the three death-scrupled jurors. Downs v. State, 386 So.2d 788 (Fla.1980). We also find no abuse by the trial court in excluding the jail records. The court properly instructed the jury and did not err by excluding the instruction as to the penalty for first-degree murder. Welty v. State, 402 So.2d 1159 (Fla.1981).

By supplemental authority Martin claims relief because of the United States Supreme Court decision in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Martin was not arrested in his own home, but in the home of a third party who gave his consent to police entry. Payton does not apply to Martin’s situation.

The jury recommended the death sentence. The judge found five aggravating circumstances, all of which are supported by the record, and presented his reasons therefor. Although there was extensive conflicting expert testimony on Martin’s mental condition, the court carefully considered this and concluded that the mental mitigating circumstances did not apply-

This was a well-tried case. It is evident that counsel were well prepared and zealously advocated their positions. The trial judge was deliberate and careful to afford a fair trial to all. The verdict of the jury and the findings of the trial judge are amply supported by the record. The judgment and sentence are affirmed.

It is so ordered.

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

      . § 921.141(6)(b) & (f), Fla.Stat. (1977).

      . There had been a pretrial determination that Martin was competent to stand trial.

      . The trial judge found that:
      (a) The capital felony was committed while the defendant was under sentence of imprisonment, on parole status. On the 18th day of January, 1973, a consolidated Judgment and Commitment was entered in the General Court of Justice, Superior Court Division of the State of North Carolina. It recited that the defendant had appeared for trial upon three charges of Murder and that he had entered a plea of guilty to Murder in the Second Degree in three cases. His sentence was not less than eighteen (18) years nor more than thirty (30) years in the custody of the State Department of Corrections.
      (b) The defendant was previously convicted of felonies involving the use or threat of violence to the person. See (a) above.
      (d) The capital felony was committed while the defendant was engaged in flight after committing a robbery and rape (sexual battery); it was also committed while the defendant was engaged in the felony of kidnapping.
      (e) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest inasmuch as the defendant was destroying the chief witness in the person of his victim.
      (h) The capital felony was especially heinous, atrocious or cruel.


source: Caselaw Access Project

author: OYERTON, Justice.

license: Public Domain

text:
    Dave FERGUSON, Petitioner, v. STATE of Florida, Respondent.
    No. 61373.
    Supreme Court of Florida.
    Sept. 9, 1982.
    Rehearing Denied Nov. 2, 1982.

      Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for petitioner.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., Miami, for respondent.
   OYERTON, Justice.

This is a petition to review the decision of the Third District Court of Appeal reported at 404 So.2d 179 (Fla. 3d DCA 1981), which directly conflicts with the decision in Humphreys v. State, 388 So.2d 607 (Fla. 2d DCA 1980). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. We approve the decision of the district court below and hold that a person may be convicted and sentenced for both burglary and possession of burglary tools when the tool is a common household item, such as a screwdriver, and the evidence shows that the item was used, or was intended to be used, in a burglary.

In Borges v. State, 415 So.2d 1265 (Fla.1982), we upheld a conviction and sentence for both the offense of burglary, section 810.02, Florida Statutes (1977), and the offense of possession of burglary tools, section 810.06, Florida Statutes (1977). We found that possession of burglary tools was not a lesser included offense of burglary so that multiple convictions and separate sentences for these two offenses were authorized by section 775.021(4), Florida Statutes (1977). We further determined that the multiple convictions and consecutive sentences did not violate the Double Jeopardy Clause of the Fifth Amendment “because where the legislature has expressed its intent that separate punishments be imposed upon convictions of separate offenses arising out of one criminal episode, the Double Jeopardy Clause is no bar to such imposition.” Id. at 1267 (citing Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981)); State v. Cantrell, 417 So.2d 260 (Fla.1982).

Petitioner argues that a unique issue is presented in this case because the burglary tool in question was a common screwdriver. He contends that, because a screwdriver cannot be considered a burglary tool in the absence of evidence that the screwdriver was in fact used in a burglary, the possession charge would be a lesser included offense of burglary. This was the reasoning that led the court in Humphreys to vacate the separate sentence for possession of burglary tools. The Humphreys decision was based on facts almost identical to those in the instant case.

In finding that the possession charge was a lesser included offense of burglary, the court in Humphreys relied on our decision in Foster v. State, 286 So.2d 549 (Fla.1973). 388 So.2d at 607, n. 1. In Foster, we found that, because the burglary tool at issue was a screwdriver, convictions and sentences for both burglary and possession of burglary tools were improper. We did not, however, base our holding on a determination that possession of burglary tools was a lesser included offense of burglary in circumstances where the tool was a common household item. Rather, we found that possession of a common household item is illegal only when it is used as a burglary tool and that, in these circumstances, possession of burglary tools was simply a facet of the criminal transaction of burglary and so could not support a separate conviction and sentence. In Johnson v. State, 366 So.2d 418, 420, n. 4 (Fla.1978), which also dealt with the “single transaction rule,” we reaffirmed, on its facts, our holding in Foster.

In Borges, we directly construed the application of section 775.021(4), and we found that the “statute has abrogated the single transaction rule.” 415 So.2d at 1266. The reasoning in Foster, therefore, can no longer be used to declare that separate convictions and sentences for burglary and possession of burglary tools are improper when the tools are common household items. Multiple convictions and consecutive sentences, under both section 775.021(4) and the Double Jeopardy Clause, are barred only when an offense is a lesser included offense of a more serious crime. See State v. Hegstrom, 401 So.2d 1343 (Fla.1981).

As we held in Borges, possession of burglary tools is not a lesser included offense of burglary, either under the previously-recognized “category four” definition of lesser included offenses, Brown v. State, 206 So.2d 377 (Fla.1968), or under the Schedule of Lesser Included Offenses in the Florida Standard Jury Instructions, at 264 (2d edition 1981). Possession of a common household item can be illegal when the person possessing it has used it in committing a burglary or has the intent to use it in committing a burglary. § 810.06. The offenses of burglary and possession of burglary tools are separately defined offenses under sections 810.02 and 810.06, and, even though the tool in question is a screwdriver, a person may properly be convicted and sentenced for each of them under section 775.021(4). The Double Jeopardy Clause is not applicable under these circumstances. See Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981).

For the reasons expressed, we approve the decision of the district court below and disapprove the decision in Humphreys v. State.

It is so ordered.

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

      That section became effective October 1, 1976, and provides:
      Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.


author: McDONALD, Justice.

text:
    GULFSTREAM LAND & DEVELOPMENT CORP., Petitioner, v. Karl J. WILKERSON, et al., Respondents.
    No. 61203.
    Supreme Court of Florida.
    Sept. 23, 1982.

      Robert M. Klein of Stephens, Lynn, Cher-nay & Klein, Miami, for petitioner.
    Salvatore V. Fiore of Fiore & Bloomgar-den, Fort Lauderdale, for respondents.
   McDONALD, Justice.

This cause is before the Court on petition to review Wilkerson v. Gulf stream Land & Development Corp., 402 So.2d 550 (Fla. 4th DCA 1981), which conflicts with Goldberg v. Context Industries, Inc., 362 So.2d 974 (Fla. 3d DCA 1978), cert. denied, 370 So.2d 459 (Fla.1979). We have jurisdiction and approve the instant decision.

The question presented in this case is whether a parent corporation of a wholly owned subsidiary is immunized from third party tort liability by virtue of its subsidiary having paid out workmen’s compensation benefits. Both the parent and subsidiary were covered by the same policy of workmen’s compensation insurance, which had been procured by the parent company. The district court held the parent not immune. In Goldberg v. Context Industries, Inc., 362 So.2d 974 (Fla. 3d DCA 1978), cert. denied, 370 So.2d 459 (Fla.1979), on the other hand, the Third District Court of Appeal found that immunity from suit was granted to the parent corporation of a wholly owned subsidiary corporation, jointly insured with the parent, which had paid out workmen’s compensation benefits to an injured employee.

In the instant case an employee of the subsidiary was injured while working on property owned by the parent. He filed a negligence action alleging breach of the duty to warn of the dangerous condition and failure to maintain the premises in a safe condition. The trial court granted the parent corporation, Gulfstream Land and Development Corp., a summary judgment based on Goldberg. The district court reversed, finding the parent not immune from suit. It based its decision on basic corporation law principles which require that the corporate fiction be recognized and that the corporate veil be pierced only where the corporate structure is used fraudulently. The joint insurance policy did not alter this finding because the parent corporation had no duty to insure the employee.

The common law right of recovery from third parties in tort should not be abridged unless specifically waived by the workmen’s compensation statutes. Our review of the statutes, and the argument of counsel, reveals that waiver of liability to parent corporations is not explicit in the statutes. Gulfstream alleges, however, that subsection 440.04(2), Florida Statutes (1973), provides immunity under these facts. We will examine the effect of that subsection later in this opinion.

Since Jones v. Florida Power Corp., 72 So.2d 285 (Fla.1954), this Court has consistently held that immunity from suit under the workmen’s compensation statutes follows the statutory liability for providing such coverage. See Conklin v. Cohen, 287 So.2d 56 (Fla.1973); Smith v. Ussery, 261 So.2d 164 (Fla.1972). Such a liability existed in Motchkavitz v. L.C. Boggs Industries, Inc., 407 So.2d 910 (Fla.1981). In the instant case Wilkerson was employed by Gulfstream Utilities Corp. That entity had the duty to provide coverage for Wilkerson and enjoyed the limited liability provided by the statutes. Gulfstream Land and Development Corp. argues that because it is the sole owner of Gulfstream Utility Corp. it also enjoyed this immunity. The issue then is whether the two corporations are so completely integrated and commingled that neither party could be viewed realistically as a separate economic entity. This is so because the liability/immunity is granted to the statutorily defined “employer” and, therefore, requires that Gulfstream Land and Development Corp. fit within this definition.

As indicated by the district court, several other jurisdictions have dealt with this issue and have reached conflicting decisions. We are persuaded by the majority of those jurisdictions that the subsidiary’s employee has the right to maintain such an independent action.

In Boggs v. Blue Diamond Coal Co., 590 F.2d 655 (6th Cir.), cert. denied, 444 U.S. 836, 100 S.Ct. 71, 62 L.Ed.2d 47 (1979), the Sixth Circuit Court of Appeals interpreted the Kentucky workmen’s compensation statute and denied immunity to the parent corporation under similar circumstances. In so holding it reasoned that

a business enterprise has a range of choice in controlling its own corporate structure. But reciprocal obligations arise as a result of the choice it makes. The owners may take advantage of the benefits of dividing the business into separate corporate parts, but principles of reciprocity require that courts also recognize the separate identities of the enterprises when sued by an injured employee.

590 F.2d at 662.

We agree that, when the benefits of dividing a business accrue to an owner, reciprocity requires courts to recognize the separate enterprises when sued by an injured employee. Unless the court can find an absolute integration of the two entities, the parent corporation is not the “employer” for purposes of workmen’s compensation coverage and is not immune from suit by an injured employee of its subsidiary which results from its own acts of negligence.

Gulfstream further contends that the joint policy of workmen’s compensation insurance provides a basis for immunity. We disagree. The decision of a parent to include a subsidiary within a joint workmen’s compensation policy is usually an economic one. In the instant case numerous subsidiaries were listed on the same policy. We find no basis for the premise that the legislature intended the vehicle of a joint workmen’s compensation policy to limit third party tort liability. See Choate v. Landis Tool Co., 486 F.Supp. 774 (E.D.Mich.1980); Latham v. Technar, Inc., 390 F.Supp. 1031 (E.D.Tenn.1974).

Gulfstream argues that subsection 440.-04(2), Florida Statutes (1973), operates to extend the statutory immunity because of the parent/subsidiary relationship and the joint policy of insurance. This subsection does allow for a waiver from exemption when the statutory conditions are met. Those conditions include a policy or contract of insurance specifically securing the benefits of chapter 440 to any person who is (A) not included within the definition of “employee,” or (B) whose services are not included within the definition of “employment,” or (C) who is otherwise excluded from the operation of chapter 440. It further requires that the insured accept the policy and that the carrier agrees to write such.

This Court has applied subsection 440.-04(2) in several decisions. In Strickland v. Al Landers Dump Trucks, Inc., 170 So.2d 445 (Fla.1964), an association of truck drivers purchased a workmen’s compensation insurance policy covering the members of the association. Strickland, a member of the association, was injured and filed for benefits under the policy. His application was denied on the grounds that his independent contractor status exempted him from the statute and that his injury was not work related. This Court reversed, holding that under the provisions of subsection 440.-04(3) the acceptance of the policy by the association constituted a waiver of the exclusion of Strickland from the act and brought him within its coverage. His injury was found to be work related because of his close working relationship with the association and because the work he was engaged in when injured was required by the association. In Allen v. Estate of Carman, 281 So.2d 317 (Fla.), conformed to 486 F.2d 490 (5th Cir. 1973), an employer received the benefits of subsection 440.04(3) by securing a policy of workmen’s compensation insurance for his sole employee. We denied coverage, however, in Wainwright v. Wainwright, Inc., 237 So.2d 154 (Fla.1970), because coverage was sought for an out-of-state employee in direct contravention of another section of the statute. Several district court decisions have also dealt with this subsection.

The underlying situation in all of these cases, however, has been a closely related employment arrangement. In Strickland the independent contractor was found to be directly associated with the trucking association. In Allen the deceased was the sole employee of the defendant. While subsection 440.04(2) is not limited to this relationship, we find that it does not extend to parent/subsidiary relationships under the facts at bar. In addition, while the joint insurance policy covers the parent and its numerous subsidiaries, the facts do not support the contention that Gulfstream Land and Development Corp. obtained the policy specifically to secure the benefits of chapter 440 to Wilkerson. While the participants may enjoy the benefits of lower insurance rates, such does not automatically trigger the application of subsection 440.-04(2).

The decision of the district court is approved. Goldberg v. Context Industries, Inc. is disapproved.

It is so ordered.

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

      . Art. V, § 3(b)(3), Fla. Const.

      . Gulfstream’s counsel acknowledged that § 440.10, Fla.Stat. (Supp.1974), did not apply. Because there is no provision like § 440.10 relating to the parent/subsidiary relationship, that relationship is not analogous to the contractor/subcontractor relationship covered by § 440.10.

      . See 2A A. Larson, The Law of Workmen’s Compensation § 72.40 (1982).

      .§ 440.04(2) provides:
      (2) When any policy or contract of insurance specifically secures the benefits of this chapter to any person not included in the definition of “employee” or whose services are not included in the definition of “employment” or who is otherwise excluded or exempted from the operation of this chapter, the acceptance of such policy or contract of insurance by the insured and the writing of same by the carrier shall constitute a waiver of such exclusion or exemption and an acceptance of the provisions of this chapter with respect to such person, notwithstanding the provision of § 440.05 with respect to notice.

      . § 440.04(3) was recodified as § 440.04(2) in 1970. See Ch. 70-148, § 4, Laws of Fla.

      . Id.

      . Key v. Goley, 402 So.2d 80 (Fla. 1st DCA 1981); Sielicki v. New York Yankees, 388 So.2d 25 (Fla. 1st DCA 1980), review denied, 392 So.2d 1377 (Fla.1981); Rainwater v. Vikings Men’s Hairstyling, 382 So.2d 1313 (Fla. 1st DCA 1980); Thundereal Corp. v. Sterling, 368 So.2d 923 (Fla. 1st DCA), cert. denied, 378 So.2d 350 (Fla.1979).


author: PER CURIAM. McDONALD, Justice,

text:
    Mack RUFFIN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 62631.
    Supreme Court of Florida.
    Sept. 29, 1982.
    David Rubman, Bartow, and Asa D. Sok-olow, Renee J. Roberts, Edward S. Korn-reich and Elizabeth Shollenberger, New York City, for appellant.

      Jim Smith, Atty. Gen., and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Mack C. Ruffin appeals an order of the trial court denying his motions to vacate his judgment and sentence of death, for the appointment of an investigator and a psychiatrist, and for stay of execution. We affirm the thorough, well-reasoned order of the trial court entered by Circuit Judge John Booth, and we deny the motion for stay of execution.

Ruffin was convicted and sentenced to death for the first-degree murder of Karol Hurst who was twenty-one years old and seven months pregnant at the time she was murdered. She had been abducted by Ruf-fin and his accomplice Freddie Hall from a Pantry Pride grocery store parking lot and had been driven in her automobile to a secluded wooded area where Ruffin and Hall sexually abused her. She was pistol whipped on her neck, head, shoulder and body; was robbed of her pocketbook, wallet and checkbook; and was shot to death with a .38 caliber pistol in the back of the head while lying face down on the ground.

Ruffin appealed his convictions for first-degree murder and sexual battery and his sentence of death. This Court affirmed his convictions and death sentence. Ruffin v. State, 397 So.2d 277 (Fla.1981). The Supreme Court of the United States denied certiorari. Ruffin v. Florida, 454 U.S. 882, 102 S.Ct. 368, 70 L.Ed.2d 194 (1981).

In June 1982, Ruffin filed motions to vacate his judgment and his death sentence, for the appointment of an investigator and psychiatrist and for discovery, and for stay of execution. On September 9, 1982, the governor signed a death warrant for the execution of Ruffin for the week of October 1-8, execution being set for October 6. After hearing, the trial court, in a detailed and explicit order addressing each of the points raised, denied Ruffin’s motions.

The majority of the issues raised by Ruffin in his motion to vacate were issues raised and addressed in his direct appeal to this Court or which could have been raised in his first appeal and therefore are matters which will not support a collateral attack. Adams v. State, 380 So.2d 423 (Fla.1980); Sullivan v. State, 372 So.2d 938 (Fla.1979).

The remaining issues include, among others, Ruffin’s assertion that he received ineffective assistance of counsel during the sentencing phase of his trial by his counsel’s failure to call certain witnesses at the sentencing hearing. After an evidentiary hearing, the trial court, in its order denying postconviction relief, explained:

Defendant’s next issue is the ineffective assistance of counsel at the sentencing hearing. The particular deficiency that Defendant points to is his trial counsel’s failure to call certain witnesses.
At the hearing on September 15, 1982, the Attorneys who represented Ruffin in his trial, William Stone and Michael Ko-vack, were present on subpoena. The Defense was offered the opportunity to examine the trial attorneys as to why the decision to not call witnesses in the sentencing phase was made and the Defense declined to do so. This was at 11:15 A.M. and the Court then recessed until 2:00 P.M. to allow the Defense the opportunity to take the depositions of the trial counsel. Mr. Stone and Mr. Kovack were available for depositions between 11:15 A.M. and 2:00 P.M. At the resumption of the hearing at 2:00 P.M., the Defense announced that it had not interviewed the trial attorneys and did not intend to do so. The Court recessed at 2:15 P.M. to allow the Defense the opportunity to reconsider its position and to place the available live testimony of ineffective assistance of counsel before the Court. At 2:40 P.M., this Court reconvened. The Defense stated that it had conversed with Mr. Stone and Mr. Kovack and elected not to and declined to place any testimony including Defendant’s before this Court on this issue. The Defense stated this would violate the attorney-client privilege. The State suggested that Ruf-fin himself state on the record that this failure to call direct testimony was his decision. Defendant’s Attorney objected to this procedure and this Court did not force Ruffin’s direct statement.
The Defense’s position is that the simple existence of the fact that the trial attorneys did not call live witnesses in phase two of the trial, demonstrates ineffectiveness in and of itself. This Court does not believe that this is the law of the State of Florida.
A somewhat analogous situation existed in Songer v. State, No. 59,852 [419 So.2d 1044] decided by the Florida Supreme Court on September 9, 1982 on a review of a denial of a Fla.R.Crim.Pro. 3.850 Motion. The issue was whether it was error on the part of trial counsel not to present an involuntary defense of intoxication. Justice James C. Adkins, Jr., speaking on behalf of the Court, stated:
Appellee responds, and we agree, that appellant’s trial counsel avoided such testimony for tactical reasons, obviously did not believe that a voluntary intoxication defense would be effective, and probably feared the type of information which might be' disclosed on cross-examination of the suggested witnesses. We will not use hindsight to second guess counsel’s strategy, and so long as it was reasonably effective based on the totality of the circumstances, which it was, it cannot be faulted. See Meeks v. State, 382 So.2d 673 (Fla.1980). That the strategy did not prove successful, from appellant’s point of view, does not mean that the representation was inadequate.
Admittedly, trial counsel was called to testify in the Songer case, but at the hearing in this Case Defendant’s attorney declined to call Defendant’s trial attorneys to the witness stand and make inquiry as to the reasons for their trial strategy or tactics even though they were present, available and willing to so testify-
In this ease mitigating factors about Defendant’s background were presented via the Court ordered psychiatric report with no live testimony being taken. That method has the tactical benefit of precluding cross-examination of any potential live witnesses just as mentioned above in Songer v. State, supra.
In Meeks v. State, Florida Law Weekly Volume F No. 24, June 18, 1982, at page 281 [418 So.2d 987] [Case No. 59,958 (Fla. June 17, 1982)] the Florida Supreme Court affirmed the denial of a 3.850 motion. Similarly to this case, trial counsel who was allegedly ineffective was present and the defense declined to call him to explain his decisions at trial. The Court quoted the trial court:
Tactics and strategy of counsel at trial, just as tactics and strategy of counsel at the instant evidentiary hearing, are areas that the trial judge could frequently be tempted to question. The Court attempts to refrain from doing so lest it usurp counsel’s role.
The undersigned finds that the failure of Defendant’s Attorney at this hearing to place Defendant’s trial counsel on the stand to testify were his trial tactics and strategy and accordingly will refrain from questioning or usurping counsel’s role.
In addition, the undersigned finds that the Defense’s bare allegations of ineffectiveness based on failure to call witnesses does not rise to the level of showing required by Knight v. State, 394 So.2d 997 (Fla.1981), and Mauldin v. State, 382 So.2d 844 (Fla. 1st DCA 1980).
The undersigned has served as a trial judge for sixteen and one-half years, three as County Judge of Lake County and the past thirteen and one-half years as Circuit Judge of this Circuit primarily in Citrus, Sumter and Hernando Counties. During that time, Mr. William Stone, in his capacity as Assistant Public Defender in Sumter County and as privately retained counsel, and Mr. Michael Kovack, in his capacity as Assistant Public Defender in Citrus County and as privately retained counsel, have practiced before the undersigned extensively and have in all cases provided effective and competent representation when appointed by the Court; further that each of said counsel have represented hundreds of criminal defendants before this court, several of them being first-degree murder cases and have been largely successful in their representation of their criminal clients. The undersigned has always found both to be well prepared, able, thorough, effective and competent attorneys.

The trial court correctly held that Ruffin failed to establish his ineffective assistance of counsel claim.

Ruffin also contends that his death sentence should be reversed because the trial court and jury considered his conviction for the first-degree murder of Deputy Coburn in support of the aggravating circumstance that the defendant was previously convicted of another capital felony or a felony involving the use or threat of violence to the person. Ruffin points to this Court’s decision in Hall v. State, 403 So.2d 1319 (Fla.1981), wherein this Court directed the trial court to reduce Hall’s conviction for the murder of Deputy Coburn to second-degree murder since the evidence in Hall’s trial was not sufficient to prove premeditation beyond a reasonable doubt. Hall’s conviction and death sentence for the first-degree murder of Hurst was affirmed. Hall v. State, 403 So.2d 1321 (Fla.1981). Ruffin maintains that since there was insufficient evidence to support Hall’s first-degree murder conviction for the killing of Deputy Coburn, there was likewise insufficient evidence to support his conviction for first-degree murder. Therefore, he argues, the consideration of his aggravating factor in his case was erroneous, and he should receive a new sentencing hearing.

Ruffin received a life sentence for the murder of Deputy Coburn, and he appealed his conviction to the District Court of Appeal, Fifth District. The Fifth District affirmed his conviction, Ruffin v. State, 390 So.2d 841 (Fla. 5th DCA 1980), and he sought no further review. The State responds that Ruffin, at the present time, stands convicted of the first-degree murder of Coburn and that the reversal in Hall is of no immediate avail to Ruffin. The trial court found that Ruffin’s conviction of first-degree murder of Coburn was affirmed on appeal and that regardless of whether Ruffin is convicted of first-degree murder or second-degree murder, it is still the same aggravating circumstance as was foimd by the trial judge in his sentencing order. We hold that the trial court was correct in this determination.

Ruffin also challenges the imposition of the death sentence in his case on the basis of the recent decision of the Supreme Court of the United States in Enmund v. Florida, - U.S. -, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). The trial court properly rejected this argument and correctly found Enmund distinguishable and inapplicable to Ruffin’s case because Enmund was not present at the scene nor did he intend a killing or anticipate the use of lethal force. The trial court explained in its order denying postconviction relief:

In contrast, Ruffin was present, he assisted codefendant Hall in the kidnapping of Karol Hurst, raped her along with his partner, knew that Hall was going to kill her and made no effort to interfere with the killmg^and--théñ’-continued on the joint venture, utilizing Mrs. Hurst’s vehicle to drive to the convenience store (the site of an intended robbery) where Deputy Coburn was murdered and Ruffin continued his partnership with Hall by firing a gun at pursuing Deputy Janes.
The evidence is abundantly clear and sufficient to demonstrate Ruffin’s joint participation in the premeditated murder of Karol Hurst, and this is the distinction between this case and the Enmund’s case and that case is therefore not applicable to this proceeding.
The Florida Supreme Court’s affirmance of Petitioner’s death sentence wherein this Defendant argued the aider and abettor issue precludes a re-challenge as is here attempted.

The trial court’s distinctions are clearly supported by the record and this Court’s decision affirming Ruffin’s judgment and sentence for the Hurst murder.

We likewise reject Ruffin’s challenges to the constitutionality of Florida’s death penalty statute.

Accordingly, since Ruffin has failed to demonstrate any meritorious grounds for relief, we affirm the trial court’s order denying Ruffin’s motions to vacate, to appoint an investigator and psychiatrist, and for stay of execution.

It is so ordered.

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

McDONALD, J., dissents with an opinion.

McDONALD, Justice,

dissenting.

This entire episode, culminating in the homicide of Mrs. Hurst and her unborn child, was a detestable abomination that clouds one’s objectivity in determining whether Ruffin should be relieved of the death penalty imposed against him. Nevertheless, I felt in the original appeal — and for the additional reason that I believe that the United States Supreme Court opinion in Enmund v. Florida, - U.S. -, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), applies to Ruffin — that as to Ruffin the death penalty is inappropriate. Ruffin was twenty-two years old, with no significant history of criminal conduct prior to the robbery-kidnap-slaying of Mrs. Hurst. While the record indicates that he had developed less than praiseworthy traits and willingly participated in the robbery, abduction, and rape of the victim, his uncontradicted statements claimed that he did not actively participate in the homicide. According to him, and this is not contradicted in his trial, the entire responsibility for the commission of the homicide belongs to his companion, Hall. There is no evidence that Ruffin took life, attempted to take life, or intended to take life. In Enmund the United States Supreme Court clearly declared that the death penalty is inappropriate for one not involved in the taking of a life.

Although the judgments of legislatures, juries and prosecutors weigh heavily in the balance, it is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty on one such as Enmund who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed. We have concluded, along with most legislatures and juries, that it does not.

Id, at - 102 S.Ct. at 3376.

At best, Ruffin was a passive, as opposed to an active, participant. I think Enmund proscribes the death penalty for Ruffin. His sentence should be reduced to life imprisonment without eligibility for parole fortwenty-five years.

In the alternative, I feel that Ruffin is entitled to a new sentencing proceeding because of ineffective assistance of counsel in that phase of the trial. His counsel presented no live evidence in the sentencing proceeding despite a strong suspicion that Ruffin was under the domination of Freddie Hall and that his personal history has traits similar to those the United States Supreme Court felt appropriate in Eddings v. Oklahoma, -U.S. -, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). There is no reason evident why any reasonable counsel would not have done this.

       He did put in the record a psychiatrist’s report which contained some history of the defendant.


author: EHRLICH, Justice.

text:
    Leon SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 56419.
    Supreme Court of Florida.
    Sept. 30, 1982.

      Bennett H. Brummer, Public Defender, and Warren S. Schwartz, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., Miami, for appellee.
   EHRLICH, Justice.

This is an appeal from a conviction of murder in the first degree for which the jury recommended and the trial judge imposed a sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. While this case was pending before this Court, motion was made and granted .for this Court temporarily to relinquish jurisdiction to the trial court in order for appellant to file a Florida Rule of Criminal Procedure 3.850 motion to vacate judgment and sentence. That motion was denied by the trial court and jurisdiction re-vested in this Court. Appellant also is appealing denial of the 3.850 motion. For the reasons stated herein, we set aside the conviction and sentence.

On June 19, 1974, Robert Copeland was shot and killed in the- Ponderosa Bar in Dade County, Florida. A warrant was issued for appellant’s arrest and he was subsequently apprehended in New York City. After a lengthy extradition battle, appellant was returned to Florida and on September 8,1978, was indicted for first degree premeditated murder. Appellant was arraigned and a public defender was appointed to represent him. On January 3, 1979, the Office of the Public Defender certified that a conflict existed because appellant wanted both his public defender and the Office of Public Defender discharged. Appellant took the position that the public defender who was representing him, a black attorney, was a racist and was conspiring with the state to have appellant (himself a black) convicted because the decedent was black. A private attorney, Martin Saxon, was appointed to continue as appellant’s counsel. Six days after Mr. Saxon’s appointment, the cause came on for trial and appellant was found guilty. After the jury recommended the imposition of the death penalty, the trial court sentenced appellant to death.

Appellant raises numerous issues on appeal that concern both the trial and sentencing phases of the proceedings below. However, all these need not be considered since the first point is dispositive of this case. Appellant argues and we agree that the trial court erred in not granting a psychiatric evaluation of appellant and in not ordering a competency hearing at the commencement of the trial. Clearly, there was reasonable ground for the trial court to have believed that appellant was incompetent and that he did not have a sufficient present ability to consult with his lawyer or assist in the presentation of his defense.

The competency criteria for Florida are the same as those for federal cases: “whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960); Lane v. State, 388 So.2d 1022 (Fla.1980). In order to determine this, it is the responsibility of the trial court to conduct a hearing for competency to stand trial whenever it reasonably appears necessary to ensure that a defendant meets the standard of competency. § 918.15, Fla. Stat. (1979); Fla.R.Crim.P. 3.210 (1979).

A number of factors, each minor by itself but taken together weighty indeed, combine to persuade this Court that a competency hearing should have been held. The record in this case is replete with numerous instances both before and during trial wherein the trial court should have been alerted to the fact that a hearing was necessary. Prior to the commencement of the trial, counsel for appellant requested such a hearing. He made known to the court that he was having great difficulty in communicating with his client and that appellant was unable to assist him in the preparation of the defense. Later, before sentencing, defense counsel once again requested that appellant be evaluated, but this request was not acted upon by the trial judge. In addition, an agreement had been reached between defense counsel and the state that the prosecutor would waive the death penalty if appellant agreed to have his case tried by a six-person jury instead of twelve. The trial court was prepared to ratify this agreement. Appellant, personally, however, overrode his lawyer’s recommendation and rejected this eminently-favorable bargain. Also, and of serious import, when defense counsel requested that appellant be sent to a facility for an extensive evaluation, the trial court refused, stating:

THE COURT: We have already had the evaluations. He’s been determined competent to stand trial ....
No. There is no need for me to send him there. The doctors have already evaluated him and he is competent.

In actuality, only one doctor (provided by the defense) had evaluated appellant, and it does not appear from the record that the trial court was cognizant of that doctor’s findings. The above-quoted language appears to be an error on the trial court’s part, and it was on the basis, it appears, of the trial court’s mistaken assumption of prior medical evaluations that counsel’s motion was denied.

Notwithstanding, “in ruling on a motion to determine a defendant’s competency to stand trial, the question before the court is whether there is reasonable ground to believe the defendant may be incompetent, not whether he is incompetent. The latter issue should be determined after a hearing.” Walker v. State, 384 So.2d 730, 733 (Fla. 4th DCA 1980). The competency rule states that upon reasonable ground the court shall fix a time for a hearing. Fla.R.Crim.P. 3.210(a)(2) (1979). Clearly, there are no fixed or immutable signs that always and automatically point the way for a judge to order a fitness hearing. However,

Although we do not, of course, suggest that courts must accept without question a lawyer’s representations concerning the competence of his client, an expressed doubt in that regard by one with “the closest contact with the defendant” is unquestionably a factor which should be considered. Moreover, resolution of the issue of competence to stand trial at an early date best serves both the interests of fairness and of sound judicial administration.

Drope v. Missouri, 420 U.S. 162, 177-78 n.13, 95 S.Ct. 896, 906 n.13, 43 L.Ed.2d 103 (1975) (citations omitted). Under the facts of the present case, there was more than reasonable ground to believe appellant may have been incompetent and, accordingly, a hearing should have been granted. “[T]he trial judge must consider all the circumstances, including the representations of counsel, and unless clearly convinced that an examination is unnecessary, order an examination before beginning or proceeding with trial.” Jones v. State, 362 So.2d 1334, 1336 (Fla.1978). This was not done and thus appellant was deprived of his due process right of not being tried while mentally incompetent. State v. Tait, 387 So.2d 338 (Fla.1980).

At the later 3.850 remand, an evidentiary hearing was in fact held. Medical experts for both the state and defense testified as to appellant’s mental state at the time of the trial. While the state’s doctors felt appellant had been competent during the trial, only Dr. Stillman, the defense’s doctor, had examined appellant before the commencement of the trial. While he initially had believed appellant to be sane and competent after an October 1978 examination, Dr. Stillman subsequently changed his opinion. In November 1979, Dr. Stillman reevaluated appellant after an exhaustive and in-depth consultation and was made aware of things that appellant had not revealed to him the previous year. Significantly, Dr. Stillman opined that appellant was a psychotic personality who malingers in the direction of good health. Dr. Still-man testified that in retrospect it appeared this process was operative at the time he initially examined appellant and that this would account for his own earlier erroneous diagnosis. It is well-settled that there is substantial difficulty in retrospectively determining an accused’s competence to stand trial. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). “In view of the doubts and ambiguities regarding the legal significance of the psychiatric testimony in this case and the resulting difficulties of retrospectively determining . .. competency,” Dusky v. United States, 362 U.S. 402, 403, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960), this Court believes that a new hearing is required to ascertain appellant’s present competency to stand trial. Accordingly, the conviction and sentence are vacated. Upon his being found competent to stand trial, appellant may be retried.

It is so ordered.

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

      We make no intimation on defense counsel’s failure to correct the trial court on the question of these alleged prior evaluations.


text:
    THE FLORIDA BAR, Complainant, v. Dale P. REDLICH, Respondent.
    No. 62493.
    Supreme Court of Florida.
    Sept. 30, 1982.
    John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel, Tallahassee, and Jacquelyn Plasner Needel-man, Bar Counsel, Fort Lauderdale, of The Florida Bar, for complainant.
    Hilliard Moldof, Fort Lauderdale, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea For Consent Judgment and Entry of Final Order of Discipline to violations of Disciplinary Rule 1-102(A)(6) of the Code of Professional Responsibility and Article XI, Rules 11.02(3)(a) and (b) of the Integration Rule of The Florida Bar. We approve the Petition, and we hereby reprimand Respondent, Dale P. Redlich, for these violations. The publication of this order in Southern Reporter shall serve as Respondent’s public reprimand.

Costs in the amount of $306.00 are hereby taxed against the Respondent.

It is so ordered.

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


author: OVERTON, Justice: EHRLICH, Justice, McDONALD, Justice,

text:
    THE FLORIDA BAR, Complainant, v. Barry SCHREIBER, Respondent.
    No. 59946.
    Supreme Court of Florida.
    Oct. 21, 1982.
    John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel, Tallahassee, Paul A. Gross, Bar Counsel, Miami, and Sylvia H. Walbolt of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for complainant.
    Burton Young and Glen Rafkin of Young, Stern & Tannenbaum, North Miami Beach, for respondent.
    Christopher H. Marine, Gainesville, as amicus curiae.
   ON MOTION FOR EXTRAORDINARY RECONSIDERATION

OVERTON, Justice:

This cause, concerning direct-mail advertising by lawyers, is before the Court upon respondent Schreiber’s motion for extraordinary reconsideration. Respondent asserts that our opinion in this matter, The Florida Bar v. Schreiber, 407 So.2d 595 (Fla.1981), should be vacated in light of the United States Supreme Court’s subsequently-filed decision in In re R.M.J., - U.S. -, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982). The Florida Bar, as complainant, joins respondent, agreeing that the instant cause is controlled by In re R.M.J. The bar requests guidance in matters of lawyer direct-mail solicitation.

We grant the motion, withdraw our opinion dated October 22, 1981, and affirm the referee’s dismissal of the cause. We direct The Florida Bar to submit proposed rules on or before February 1, 1983, for the regulation of lawyer direct-mail advertising which are reasonable and necessary to protect the public interests and which conform to the dictates of In re R.M.J.

It is so ordered.

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

EHRLICH, J., concurs with an opinion.

McDONALD, j., dissents with an opinion with which ALDERMAN, C.J., concurs.

NO MOTION FOR REHEARING WILL BE ALLOWED.

EHRLICH, Justice,

concurring.

I concur in the judgment of the Court and join in the Court’s opinion with great reluctance and much sadness. My reluctance stems from the fact that I find it difficult not to stand by the original opinion in this case of former Chief Justice Sund-berg which shall remain as a beacon of what the law is, in the opinion of some, or what it ought to be, in the opinion of others. My sadness emanates from my realization that we are leaving an era of professionalism in the practice of law which has well served our profession and the public most of this century, and are now embarked on a course of continued commercialization of the legal profession under the guise of first amendment rights, mandated by the highest court in this land, where direct mail solicitation apparently cannot be proscribed. We are told, however, that it can be regulated by the state in fulfillment of the state’s obligation to uphold professional standards for the protection of its citizens. I am certain that this Court will lend its every effort to this endeavor, to the end that the public be fully protected, that the practice of law not become a commercial enterprise, and that professionalism may yet survive.

McDONALD, Justice,

dissenting.

Try as I may, I cannot reconcile myself to believing that our decision in this cause should be disturbed because of the subsequent pronouncement in In re R.M.J., - U.S. -, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982). First of all, our opinion was final. But more importantly, I look at R.M.J. in a more restricted light than do The Florida Bar and my colleagues. I recognize that R.M.J. prohibits restrictive limitations on the audience to whom a lawyer may direct announcements and probably prevents a prohibition against the use of mail for advertising. But a direct mail solicitation to a particular person, group, or class of persons seeking employment of the lawyer is different. Again I reiterate what Justice Sund-berg said in our original opinion, that solicitation and advertising are not synonymous. While advertising may not be prohibited, solicitation can be.

This might be considered a solicitation case. The letter mailed in this instance was an invitation directed to a particular organization to employ the letter writer in any immigration problems that might arise. While that is not as egregious as a lawyer seeking representation in a particular case, it could be considered more than simple advertising. Disciplinary Rule 2-103(A) still has applicability in some instances. It is still alive as it relates to solicitation. Our original opinion should stand.

ALDERMAN, C.J., concurs.

      . Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977).

      . Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 98 S.Ct. 1925, 56 L.Ed.2d 444 (1978).

      .I say could because it must be remembered that the matter was here on a motion to dismiss and no fact-finding hearing has been held.


author: NESBITT, Judge. PER CURIAM. FERGUSON, Judge

text:
    GENERAL MOTORS ACCEPTANCE CORPORATION, Appellant, v. CITY OF MIAMI BEACH and John E. McCoy, Appellees.
    No. 81-254.
    District Court of Appeal of Florida, Third District.
    May 25, 1982.
    Rehearing Denied Nov. 2, 1982.
    Shutts & Bowen and Eric Meyers and Gregory P. Borgognoni, Miami, for appellant.
    Preddy, Kutner & Hardy and G. William Bissett, Leonard Sussman, Joe Unger, Miami, for appellees.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   NESBITT, Judge.

Defendant, third-party plaintiff General Motors Acceptance Corporation (GMAC) appeals from a judgment entered in favor of the plaintiff John McCoy and a directed verdict entered in favor of the third-party defendant, City of Miami Beach on GMAC’s claim for contribution.

Due to a default on a security interest held by GMAC in a 1974 Chevrolet Impala, GMAC repossessed the car without the knowledge of the owner, McHugh. McHugh reported to the Miami Beach Police Department that the vehicle had been stolen. The report of the theft was fed into a computerized system and disseminated to various enforcement officers. The GMAC employee who repossessed the car testified that he immediately notified the Miami Beach Police Department of the action he had taken on behalf of GMAC. (A special interrogatory verdict found he had not.) Following repossession, GMAC obtained a title certificate and the car was sold through a dealer to the plaintiff McCoy. More than one year later, McCoy was stopped by Dade County police who were responding to McHugh’s earlier report that the car had been stolen. McCoy was temporarily detained by police officers notwithstanding the fact that there were papers in the glove compartment to show that he was the rightful owner of the vehicle.

McCoy instituted a suit against GMAC for its failure to notify the police department of the repossession within twenty-four hours as a result of which McCoy claimed he was entitled to compensatory and punitive damages. GMAC filed a third-party complaint against Miami Beach for indemnity and contribution because of its negligence in investigating the complaint of McHugh that his vehicle was stolen. A directed verdict was entered on the City of Miami Beach’s claim for contribution. A jury verdict was entered in favor of McCoy against GMAC, and in favor of the City of Miami Beach against GMAC on its claim for indemnity. GMAC appeals the directed verdict and the jury verdict in favor of McCoy.

The negligence alleged by McCoy against GMAC was its violation of Section 493.25, Florida Statutes (1975) which provides:

Acts prohibited by licensees or employees acting as repossessors. — ■. ...
(6) NOTIFICATION TO POLICE OR SHERIFF’S DEPARTMENT. — Failure to notify police or sheriff’s department of the jurisdiction in which the personal property is recovered within 24 hours.

This statute was read into evidence over GMAC’s objection and the jury was instructed that a violation of the statute constituted evidence of negligence. We find that this was error.

Chapter 493, Florida Statutes (1975) regulates the actions of private investigative agencies. It requires that “any person, firm, company, partnership or corporation, engaged in the business of furnishing for hire private investigations and which employs one or more full-time or part-time private investigators,” Section 493.01(1), Florida Statutes (1975), be licensed by the state. § 493.02(2), Fla.Stat. (1975). It is undisputed that GMAC is not a licensed detective agency within the purview of Chapter 493, supra. It is equally clear that GMAC does not provide private investigative services as defined by Section 493.01(1), supra, and Florida Administrative Code Rule lC-3.02(l)(a). The inapplicability of Chapter 493, supra, to GMAC is even more apparent by Section 493.11(1), Florida Statutes (1975) which states that Part 1 of Chapter 493, supra, does not apply:

(d) To any person employed as an unarmed special agent, detective, or private investigator exclusively in connection with the affairs of that employer....

Clearly, the individual employee who repossessed the car was a field agent for GMAC employed to repossess cars exclusively for his employer. Since GMAC is not within the purview of Chapter 493, Section 493.-25(6), supra, does not govern its actions.

While the appellee makes a compelling argument that Section 493.25(6), supra, should be liberally construed in light of the purpose of the statute to prevent repossessed property from being reported as stolen, we are bound by the dictates of the Legislature to regulate only as to the specified group. Such a legislative directive cannot be ignored. Consequently, we find that the statute is inapplicable to create a duty on the part of GMAC.

It is axiomatic that in order to maintain a cause of action for negligence, there must be a duty on the part of the defendant to protect the plaintiff from the injury or damage of which he complains. In the present case, the sole breach of duty alleged was the violation of the statute and the case was submitted to the jury solely on that issue. Having determined that there was no duty flowing from Section 493.25, supra, and no general allegations of negligence apart from the alleged statutory violation, we find that the complaint failed to state a theory of liability upon which recovery could be predicated. See Louisville and N.R. Co. v. Wade, 46 Fla. 197, 35 So. 863 (Fla.1903).

Because this point has not been properly preserved for appellate review, we are precluded from directing the trial court to enter judgment in favor of the defendant. Consequently, we reverse and remand for proceedings not inconsistent herewith. Since we reverse the judgment against GMAC, we need not consider the other points on appeal.

Reversed and remanded.

ON MOTION FOR REHEARING

PER CURIAM.

Counsel for appellant having filed in this cause motions for rehearing and clarification, and same having been considered by the court which determined the cause, it is ordered that said motions be and they are hereby denied.

ON REHEARING

FERGUSON, Judge

(specially concurring).

Appellee McCoy suffered a stroke after being arrested, searched and confined for possessing an allegedly stolen vehicle. The jury found that appellant negligently failed to notify the police department that it had repossessed and resold the automobile to McCoy after it had been reported stolen by the previous owner. McCoy was awarded $566,000.00 in compensatory damages.

I agree with the majority that since Section 493.25(6), Florida Statutes (1975) expressly regulates private investigative agencies and as such is not applicable to this case, it was error to read the statute to the jury as evidence. I also agree it was error to instruct the jury that a violation of the statute constituted evidence of negligence. The errors complained of are grounds for reversal and remand for a new trial involving all the original parties.

The only issues raised by appellant on these points are whether the trial court committed error by (1) permitting appel-lee’s counsel to read to the jury Section 493.25(6) of the Florida Statutes and (2) instructing the jury that the statute imposed a duty upon appellant to report its repossession of the automobile to the Miami Beach Police Department. Having disposed of those questions the majority then goes into the record to consider a point not raised by appellant, nor briefed or argued before the court, i.e., whether the complaint, independent of statutory duty allegations, states a cause of action in common-law negligence. That point and the resolution of it opens a “Pandora’s box” of collateral issues as shown by the motions for rehearing, clarification, and suggestion for certification which the parties have urged this court to consider.

A reviewing court should confine its opinion to those statements of legal principles necessary for solution of the particular question or questions involved in the appeal. Dobson v. Crews, 164 So.2d 252 (Fla. 1st DCA 1964), aff’d, 177 So.2d 202 (Fla.1965). Any expression beyond that necessary to decide the narrow issues raised by the parties is obiter dictum and is without force. Pell v. State, 97 Fla. 650, 122 So. 110 (1929); State ex rel. Biscayne Kennel Club v. Board of Business Regulation, 276 So.2d 823 (Fla.1973).

Because the appeal did not challenge the sufficiency of the pleadings to state a cause of action in common law negligence, the bone of contention in post-hearing motions, the majority discussion of it is dictum which should not, at this stage, be the basis for further consideration of the case by this court or the Florida Supreme Court.

      . While we oberve that the defendant’s motion for judgment on the pleadings contained the argument that, in the absence of the statutory duty, there is no cause of action against the defendant, this motion was not a sufficient vehicle by which this court could reach that issue. The defendant’s motions for directed verdict did not renew this argument. The most telling omission, and one which we are unable to overlook, is that the defendant filed a post trial motion for a new trial rather than for a judgment to be entered in accordance with a motion for directed verdict. In such a posture, we cannot enter judgment for the defendant.

      . Such proceedings may include permission to file an amended complaint upon a viable theory in accordance with Florida Rule of Civil Procedure 1.190 and decisional law. See, e.g., Gold Coast Crane Service, Inc. v. Watier, 257 So.2d 249 (Fla.1971); Plyser v. Hados, 388 So.2d 1284 (Fla. 3d DCA 1980); Fouts v. Margales, 98 So.2d 394 (Fla. 3d DCA 1957).


author: DANIEL S. PEARSON, Judge.

text:
    Scott Kevin WHEATON, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1907.
    District Court of Appeal of Florida, Third District.
    July 27, 1982.
    Rehearing Denied Sept. 15, 1982.
    Roy E. Black and Frank C. Furci, Miami, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY and DANIEL S. PEARSON, JJ., and WOODROW M. MELVIN (Ret.), Associate Judge.
   DANIEL S. PEARSON, Judge.

The facts are not in dispute. Scott Wheaton was indicted by a Commonwealth of Virginia grand jury on November 10, 1980, for conspiracy to sell, distribute and possess controlled substances. The Governor of Virginia requested that Wheaton be extradited from Florida. The requisition warrant stated, inter alia, that Wheaton was present in Virginia at the time of the commission of the crime, thereafter became a fugitive from justice, and took refuge in Florida. The Governor of Florida denied extradition apparently because the supporting documents showed that Wheaton was not present in Virginia at the time of the commission of the crime charged and was not therefore subject to extradition under Section 941.03, Florida Statutes (1979), under which the request was made.

In December 1980, the same Virginia grand jury returned a superseding indictment against Wheaton. The new indictment charged the same conspiracy, expanded the time covered by the conspiracy, and set forth the offense in greater detail. On January 15, 1981, the Governor of Virginia again demanded the extradition of Whea-ton, but under Section 941.06, Florida Statutes (1979). The new requisition warrant began:

“Whereas, it appears by application, indictment, etc. which are hereunto annexed and which I certify to be authentic and duly authenticated in accordance with the Laws of this State .... ”

Annexed to this request was the December 1980 indictment, to which was attached a clerk’s authentication, not of the December 1980 indictment, but of the earlier indictment.

Section 941.03, Florida Statutes (1979), provides in pertinent part:

“No demand for the extradition of a person charged with a crime in another state shall be recognized by the Governor unless in writing and accompanied by an authenticated copy of an indictment found ... in the state having jurisdiction of the crime ... [T]he copy of indictment ... must be authenticated by the executive authority making the demand.” (emphasis supplied).

The State argues that the recitation in the requisition warrant that the Governor of Virginia certifies the December 1980 indictment to be authentic completely satisfies the statute’s authentication requirement. While we agree that without the Governor’s authentication, extradition could not be upheld, Sullivan v. State ex rel. Pardew, 49 So.2d 800 (Fla.1951); State ex rel. Gandert v. Roberts, 381 So.2d 1191 (Fla. 2d DCA 1980); Palmer v. State, 312 So.2d 476 (Fla. 4th DCA 1975), the issue here is whether the prima facie case for extradition which the Governor’s authentication arguably establishes is overcome by the fact that a supporting document, that is, the clerk’s authentication, indisputably shows that the December 1980 indictment upon which the requisition warrant depends was not, as the Governor also alleged, “duly authenticated.”

In our view, the Governor of Virginia’s statement that the documents are authentic, while functioning as the ultimate authentication, does not serve to authenticate an otherwise unauthenticated indictment. The requirement of Section 941.03 that the Governor’s demand be accompanied by an authenticated copy of an indictment is not contained in the Uniform Criminal Extradition Act, see Unif. Extradition Act § 3, 11 U.L.A. 35 (1974), upon which Chapter 941 is otherwise patterned. It is well settled that a statute must be read, if possible, so as to give meaning to all its parts, State v. Rodriguez, 365 So.2d 157 (Fla.1978); Wilensky v. Fields, 267 So.2d 1 (Fla.1972); Piantadosi v. State, 399 So.2d 382 (Fla. 3d DCA 1981). A fortiori, where the statute adds a provision not found in an act upon which it is patterned, we must presume that the Legislature intended the added words to have meaning. Thus, we read the requirement that the accompanying copy of the indictment be authenticated as contemplating a separate authentication by the appropriate person in charge of the records of the court wherein the grand jury sat and the indictment was returned. Were the Governor’s blanket statement of authenticity enough, then there would be little need to have an authenticated copy of the indictment accompany his request, and this separate provision would have no meaning at all.

We fully recognize that the role of a court in a habeas corpus proceeding challenging the issuance of a rendition warrant is limited. Nonetheless, as limited as our role is, it includes our right to determine whether the extradition documents on their face are in order. Fauls v. Sheriff of Leon County, 394 So.2d 117 (Fla.1981); Moore v. State, 407 So.2d 991 (Fla. 3d DCA 1981). Here the document which purported to authenticate the December 1980 indictment under which extradition was requested in fact authenticated an earlier indictment as to which an extradition request had been refused. Thus, the extradition papers are quite clearly deficient, see Battles v. State, 389 So.2d 957 (Ala.Cr.App.1980), and the deficiency is hardly technical:

“The statute is one involving the substantial rights of citizens, and its essential elements must be strictly followed.... Only by faithfully following the provisions of this statute may a person be lawfully deprived of his liberty and extradited from an asylum state to another state, there to be tried for the commission of a crime. The alleged fugitive has a right not to be imprisoned or dealt with by the states in disregard to those safeguards provided by the Constitution and statutes of the United States.” United States ex rel. McCline v. Meyerling, 75 F.2d 716, 717 (7th Cir. 1934) (citations omitted).

We have considered Wheaton’s other points on appeal and find them to be without merit. However, for the reasons stated, the trial court’s order denying Wheaton’s petition for writ of habeas corpus and remanding the petitioner to custody for return to Virginia is reversed and the cause remanded to the trial court for further proceedings consistent herewith.

      . Under Section 941.03, it must be shown “that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from . the state .... ”

      . Under Section 941.06, it must be shown that the accused committed an act in a state other than the demanding state intentionally resulting in a crime in the demanding state even though the accused was not present therein when the crime was committed and did not flee therefrom.

      . It appears that only Maine and Florida have added the requirement that the demand be accompanied by an authenticated copy of the indictment. The pertinent provision of the Uniform Act reads:
      “No demand for the extradition of a person charged with crime in another state shall be recognized by the Governor unless in writing ... and accompanied by a copy of an indictment found ... in the state having jurisdiction of the crime ..., ”

      . The trial court’s order relied on Kurtz v. State, 22 Fla. 36 (1886), which was decided under a federal statute which, like the uniform law, contained no separate requirement that a copy of the indictment be authenticated.


text:
    Miguel Angel HERRERA, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1901.
    District Court of Appeal of Florida, Third District.
    Aug. 31, 1982.
    Rehearing Denied Oct. 20, 1982.
    High, Stack, Lazenby, Bender, Palahach & Lacasa and R. Scott Boundy and Marco Laffredo, for appellant.
    Jim Smith, Atty. Gen., and Diane Zimmer Leads, Asst. Atty. Gen., for appellee.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and WILLIAM C. OWEN, Jr. (Ret.), Associate Judge.
   PER CURIAM.

For the reasons set forth and upon the authorities cited in the companion case of Wheaton v. State, 420 So.2d 604 (Fla. 3d DCA 1982), the trial court’s order denying Herrera’s petition for writ of habeas corpus and remanding the petitioner to custody for return to Virginia is reversed and the cause remanded to the trial court for further proceedings.


text:
    COUNTY OF VOLUSIA, etc., Appellant, v. CITY OF DAYTONA BEACH, etc., Appellee.
    No. 81-1219.
    District Court of Appeal of Florida, Fifth District.
    Aug. 18, 1982.
    As Clarified on Denial of Rehearing Oct. 6, 1982.

      Daniel R. Vaughen, Asst. County Atty., DeLand, for appellant.
    Frank B. Gummey, III, Robert G. Brown, Reginald E. Moore and Nancye R. Crouch, Daytona Beach, for appellee.
   PER CURIAM.

This appeal challenges an order of the Circuit Court of Volusia County quashing a decision by the Volusia County Council, the governing body of the County (hereinafter referred to as the County), which denied an application by the City of Daytona Beach (hereinafter the City) for a certificate of public convenience and necessity to operate an emergency medical transportation service within its municipal limits. The County’s action was taken pursuant to section 401.25, Florida Statutes (1979), which the circuit court declared unconstitutional insofar as it applied to the facts presented in this case.

The controversy ensued when the City applied to the County by letter dated September 19, 1980, for the certificate. The County and the City then organized a task force to study the emergency medical transportation system in Volusia County and to make a recommendation in regard to the City’s proposal. After receiving a second application from the City dated December 16, 1980, the County held a hearing on January 15, 1981, and heard unsworn presentations from the City, the Emergency Medical Services Council (a county advisory committee), the county’s emergency medical services medical director, the then current emergency medical services provider, and the county’s emergency medical services administrator. At the conclusion of the hearing, the County denied the City’s application without prejudice.

On February 10, 1981, the City filed a petition and complaint in the circuit court against the County and its current emergency medical services provider in four counts: certiorari, injunction against alleged violations of the Florida Anti-Trust Law, damages against the medical services provider for anti-trust violations, and declaratory judgment against both the county and the medical services provider to establish the City’s right to operate an emergency medical services transportation system. The petition for certiorari sought review of the denial by the County of the City’s application for the certificate. The County, in its response, alleged that its denial was a legislative decision and was not properly reviewable by a petition for certiorari. In an order dated April 30, 1981, the circuit judge considered only the petition for cer-tiorari. The court stated in its order at that time:

At the time of the hearing, the County Council was considering alternative methods of providing county-wide emergency medical transportation services. Several of the alternatives depended upon revenue from operation within the City of Daytona Beach to defray or at least supplement the cost of operating the countywide service. Simply stated, the council was aware that the granting of the City’s application could result in increased costs to the County. It is the Court’s opinion that deliberation on the City’s application, which included consideration of what was in the best financial interest of the County, would be improper in that it would deny the City a fair and impartial hearing consistent with due process of law.
Based upon the foregoing, the Court refers and remands this cause back to the County Council for further consideration consistent with the opinions expressed herein. The council in its deliberations shall not admit nor consider any evidence bearing upon the financial advantage or disadvantage to the county resulting from the grant or denial of the City’s application. The council may consider all evidence relating to the quality of care and level of service resulting from the grant or denial of the City’s application. This may include the report and recommendations of the joint task force. Further, after due deliberation the council shall enter a final order upon the City’s application either denying same with prejudice or granting same. The council shall render its decision in this matter on or before June 15, 1981.

Following the court’s order, the County held another meeting on May 21, 1981, for the purpose of considering county-wide emergency medical services. It concluded that the services should be provided on a county-wide basis. A second meeting was held by the County on May 26, 1981, at •which time a hearing was conducted on the City’s application as required by the April 30, 1981, order of the circuit court. The County heard sworn testimony and counsels’ argument, made findings of fact and conclusions of law, and rendered a final order denying the City’s application with prejudice.

The City then sought circuit court review of the County’s May 26th decision by way of a petition for certiorari. On August 25, 1981, the circuit court entered a final judgment quashing the decision of the County for failing to provide the City a quasi-judicial hearing before an impartial tribunal on its application, declaring section 401.25, Florida Statutes (1979), to be unconstitutional as applied to these facts, and inviting the City to reapply for its certificate to the circuit court. The order further provided that “if there are any doubts about the neutrality of the circuit courts of Volusia County, then the City should seek to have the matter resolved in the courts of a sister county.” It is this judgment which we entertain on this appeal.

The appellant challenges the circuit court’s finding that the City’s application for a certificate required an impartial (i.e., quasi-judicial) hearing on the basis of a competitive conflict between the County and the City. The circuit court stated that the County in the instant case was sitting as a quasi-judicial body faced with deciding a dispute wherein it was, itself, an interested party. The view of the circuit court was stated in its judgment:

The key issue concerns the fact that the city, which is in competition with, and which directly opposes the county in the provision of emergency and non-emergency medical transportation services, is required to obtain a certificate of public convenience and necessity from the county commission. The court is particularly concerned about the partiality or impartiality of two parties facing each other in an adversary hearing where one of the adverse parties is ultimately responsible for deciding the issues between them. (Emphasis added.)

In arriving at its conclusion, the circuit court relied on three cases: Chief Judge of the Eighth Judicial Circuit v. Board of County Commissioners of Bradford County, 401 So.2d 1330 (Fla.1981); State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613 (Fla.1939); Dickenson v. Parks, 104 Fla. 577, 140 So. 459 (Fla.1932). Davis and Dick-enson involved the necessity of disqualifying an individual judge from presiding over a trial on grounds of prejudice. The Chief Judge case involved a dispute between the chief judge of the circuit wherein Bradford County is located and its county commission concerning allocation of space in the county courthouse. Each of these cases arose in the context of judicial or quasi-judicial proceedings wherein adversarial parties or interests were in conflict. The initial question, indeed the crucial question, is whether or not the City was entitled to a quasi-judicial hearing before the Volusia County Council on its application for a certificate to operate an emergency medical transportation system. If the decision of the Council was quasi-judicial in nature, and there were no specific statutory appellate procedures prescribed, then it was subject to review by certiorari; if the hearing was not a quasi-judicial one, then the remedy to attack the proceeding would have to be an original action in equity. Teston v. City of Tampa, 143 So.2d 473 (Fla.1962).

The Florida Supreme Court discussed the proper method and scope of review of quasi-judicial determinations by a county board in DeGroot v. Sheffield, 95 So.2d 912 (Fla.1957). It held that where notice and hearing are required and the judgment of the board is contingent on the showing made at the hearing, the action is judicial or quasi-judicial. It further held that the proper method of review in such cases is by certio-rari. See also Town of Indiatlantic v. Nance, 400 So.2d 37 (Fla. 5th DCA 1981).

In Bloomfield v. Mayo, 119 So.2d 417, 421 (Fla. 1st DCA 1960), on appeal after remand, it was said:

It thus appears that before an administrative order may be considered quasi-judicial in character and therefore subject to review by certiorari, the statute authorizing the entry of such an order must also require that the administrative agency give due notice of a hearing to be held on the question to be considered, and provide a fair opportunity to be heard in a proceeding in which the party affected is accorded the basic requirements of due process of law.... the absence of such protective language with respect to an application to register a pesticide product denudes the Commissioners’ order denying registration of any of the characteristics or attributes of a quasi-judicial order. An order of the Commissioner denying registration under the provisions of the statute here considered must, therefore, be considered administrative in character, and not such a quasi-judicial order as may be reviewed by certiorari within the contemplation of Rule 4.1.

Another case in which the court examined the underlying statute to determine if it held any requirement of a quasi-judicial hearing was Bay National Bank and Trust Company v. Dickinson, 229 So.2d 302 (Fla. 1st DCA 1969), whérein it was held:

If quasi-executive or quasi-legislative acts are performed in violation of the mandatory requirements of law, or are infected by fraudulent, capricious, or arbitrary action of the agency, they are subject to assault by appropriate proceedings in a court of competent jurisdiction. It is in such a proceeding as this that procedural due process is afforded, but not in the agency’s prior consideration. (Emphasis supplied.)

In Board of County Commissioners of Hillsborough County v. Casa Development, Ltd., 332 So.2d 651 (Fla. 2d DCA 1976), an application for a water and sewer franchise was denied by the Hillsborough Board of County Commissioners. The applicant filed a petition for writ of certiorari, and the circuit court overturned the county’s denial. The appellate court held that since the action was clearly quasi-legislative in character, review by certiorari was improper. The court concluded that while there was a public hearing upon notice, a quasi-judicial type of hearing was not contemplated.

It is clear from a comprehensive reading of Chapter 401, Part III, Florida Statutes (1981) that it contains no statutory provisions for a noticed hearing, due process requirements, or appellate review in regard to a county’s consideration of applications for certificates of public convenience and necessity to operate a medical transportation service. In fact, the entire matter is expressly delegated to the counties by section 401.25(8), which reads:

(8) The governing body of each county is authorized to adopt ordinances providing reasonable standards for certificates of public convenience and necessity for emergency or non-emergency medical transportation services.

No county ordinance providing a city the right to a quasi-judicial hearing or certiora-ri review in circuit court has been called to our attention in this record, nor was any cited by the judgment below. We therefore find there is no statutory basis in Chapter 401 to support the judgment below. We proceed, then, to consider the nature and scope of quasi-judicial hearings and determine if there is any basis to support the trial court’s judgment outside the confines of Chapter 401.

Article V, Section 5, Florida Constitution (1968) specifically gives the circuit court power of direct review of administrative action when provided by general law. No such general law appears to exist in this case. Section 120.68 of the Florida Administrative Procedure Act, Chapter 120, Florida Statutes (1974), provides that a party adversely affected by final agency action shall obtain judicial review through a petition in the district court of appeal in the appellate district where the agency maintains its headquarters or where the party resides. See Fla.R.App.P. 9.030(b)(1)(C). The agency must be one subject to the provisions of the Florida Administrative Procedure Act in order to qualify for this type of judicial review. Sweetwater Utilities Corporation v. Hillsborough County, 314 So.2d 194 (Fla. 2d DCA 1975). The issue is then raised as to whether the Volu-sia County Council is an agency within the purview of section 120.52(l)(c), which provides:

“Agency” means:
(c) Each other unit of government in the state, including counties and municipalities, to the extent they are expressly made subject to this act by general or specific law or existing judicial decisions. (Emphasis added.)

Arguably, the county council, having been made a state agency by Chapter 401, Part III, Florida Statutes, is subject to judicial review under the Florida Administrative Procedure Act. Notwithstanding this fact, section 120.73 of the Act provides that the Act does not operate to repeal a statute which grants the right to a proceeding of the circuit court in lieu of an administrative hearing or to divest the circuit court of jurisdiction to render declaratory judgments under Chapter 86, Florida Statutes.

While Chapter 166.021, Florida Statutes (1973), the Municipal Home Rule Powers Act, generally gives a municipality the power to enact legislation concerning any subject matter upon which the state legislature may act, section 166.021(3)(c) limits its power where a subject is preempted to state or county government by the Constitution or by general law. It is apparent that the state in this case has preempted the field of medical transportation services, delegating to the Department of Health and Rehabilitative Services and to the counties the duty to administer a state plan for the services. By executing the programs and policies adopted by the legislature in Chapter 401, part III, the counties, and in this case Volu-sia County, act in a quasi-executive capacity to discharge a legislative mandate. That mandate does not interfere with any vested right of the City (e.g., anticipated revenue from the operation of an emergency medical transportation service) which is protected by the Fourteenth Amendment or Section 17 of the Declaration of Rights of the Florida Constitution. See State v. Dade County, 142 So.2d 79 (Fla.1972). See also Bay National Bank and Trust Company v. Dickinson, 229 So.2d 302 (Fla. 1st DCA 1969).

The issue before the Volusia County Council at its meeting of May 21 and May 26, 1981, was not whether the City of Day-tona Beach was entitled to a certificate as a matter of right (which it was not), but rather whether the City’s application would provide the best answers to an effective emergency medical transportation system on a county-wide basis. The council thought not, which was its statutory prerogative, and denied the application. The question involved the wisdom of delegation of a legislative duty, not a judicial determination between competing interests in pari materia.

We hold section 401.25 constitutional as applied to the facts in this case, and we find that the County Council’s decision was a quasi-executive or quasi-legislative function. It was not a quasi-judicial proceeding, and certiorari review by the circuit court was improper. Accordingly, the judgment of the circuit court dated August 24, 1981 is

QUASHED.

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

ON MOTION FOR CLARIFICATION

PER CURIAM.

The appellee, City of Daytona Beach, has moved for clarification on several grounds. That motion is granted to the extent that the following sentence, which appears in footnote 1 of the opinion, is stricken:

We note there is no suggestion in the instant record of prejudice on the part of any individual councilman, as opposed to the Volusia County Council as a whole.

Injunctive and declaratory relief were sought by appellee in the trial court, and were denied on the ground that they were not properly before the trial court. That determination has not been presented to this court by appeal or petition for certiora-ri. We, therefore, decline to “remand” these issues to the trial court, as requested by appellee, since they were never here.

We have not overlooked the recent decision of City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982). Our result quashing the improvident writ of certiorari issued by the circuit court is not affected whether we consider the instant cause as before us on appeal pursuant to Florida Rule of Appellate Procedure 9.030(b)(1)(A) or treat the notice as a petition for certiorari pursuant to Rule 9.030(b)(2)(B) concerning a final order of the circuit court acting in its review capacity, wherein that court departed from essential requirements of law.

Except as otherwise provided by this order, the motion by the City for clarification is denied.

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

      . We note there is no suggestion in the instant record of prejudice on the part of any individual councilman, as opposed to the Volusia County Council as a whole. In the situation, such as in Dickenson and in Davis, where an individual judge is disqualified, another individual is assigned to sit in his position. The forum, as a legal entity, remains unchanged. The judgment here appealed, however, would operate to transfer the initial decision-making process from one forum, the governing body of Volusia County, to another forum, the Circuit Court of Volusia or a neighboring county.


author: GLICKSTEIN, Judge. HERSEY, Judge,

text:
    Robert E. STRASSER, Appellant, v. STATE of Florida, Appellee.
    No. 81-113.
    District Court of Appeal of Florida, Fourth District.
    Sept. 8, 1982.
    Rehearing Denied Nov. 3, 1982.

      Richard L. Jorandby, Public Defender, and Richard B. Greene, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

Appellant was charged with and convicted of robbery. The trial judge refused to instruct the jury on attempted robbery but did instruct upon robbery, grand theft and petty theft. We reverse.

It is our opinion that at the time the case was tried in January of 1981, the failure to instruct on attempted robbery was reversible error. We acknowledge that our opinion directly conflicts with the decision of the Second District Court of Appeal in Burney v. State, 402 So.2d 38 (Fla. 2d DCA 1981), which refused to reverse a conviction in a similar situation. In Burney the court recognized that the standard jury instructions in criminal cases were being changed by not requiring an instruction on attempt in a case in which the only evidence proved a completed offense. It concluded that on retrial the defendant would not be entitled to the instruction on attempt, there being no evidence thereof, and that the reviewing court was not required to do a useless act, nor to act when impossible to grant effectual relief. The court did acknowledge, however, that but for the change in the instruction, it would be required to reverse.

We believe the principles which our sister court applied should not govern and we note that the supreme court in In re the Use by Trial Courts of the Standard Jury Instructions in Criminal Cases & the Standard Jury Instructions in Misdemeanor Cases, Nos. 56,734 & 58,799 (Fla. June 5, 1981), said:

Until July 1,1981, trial judges are directed to continue to follow the requirements of Brown and present rules 3.510 and 3.490.

Of course, “Brown” refers to Brown v. State, 206 So.2d 377 (Fla.1968), which held that if the trial court determines as a matter of law that an attempt to commit the crime charged would itself constitute an offense, it must instruct on the subject of such attempt. Florida Rule of Criminal Procedure 3.510, as it read when appellant was tried, said:

Upon an indictment or information upon which the defendant is to be tried for any offense the jurors may convict the defendant of an attempt to commit such offense if such attempt is an offense, or may convict him of any offense which is necessarily included in the offense charged. The court shall charge the jury in this regard.

The conclusion we reach gains support from recent decisions rendered by the supreme court shortly before or immediately after appellant was tried. For example, in State v. Thomas, 362 So.2d 1348, 1349-50 (Fla.1978), the court said:

This court held in Lomax v. State, 345 So.2d 719 (Fla.1977), that generally it is reversible error for a trial court to refuse to grant a defense request for an instruction on the lesser included offense of attempt. In Lomax, this court recognized that it is the jury’s prerogative to resolve questions of fact as to the degree of offense committed. The authority of a jury includes its ability to find a defendant guilty of the lesser included offense even where the evidence might warrant a verdict of guilt on the greater offense charged. The trial court should not usurp the jury’s role by failing to give instructions on lesser included offenses.

See also Reddick v. State, 394 So.2d 417 (Fla.1981); State v. Abreau, 363 So.2d 1063 (Fla.1978); State v. Terry, 336 So.2d 65 (Fla.1976).

The facts in the present case, as in Burney, clearly would not entitle appellant to his requested instruction on retrial. In accordance with In re Florida Rules of Criminal Procedure, 403 So.2d 979 (Fla.1981), as of October 1,1981, Florida Rule of Criminal Procedure 3.510(a) provides that the jury shall not be instructed on attempt when the only evidence proves a completed offense. But this rule did not govern in January of 1981, when appellant was tried; nor was it the law, as evinced by the foregoing decisions. Accordingly, we decline to follow Burney, and we reverse and remand for a new trial. Because a new trial is necessary, we point out for the benefit of the trial court that appellant’s second point on appeal is meritless.

OWEN, WILLIAM C., Jr., (Retired) Associate Judge, concurs.

HERSEY, J., dissents with opinion.

HERSEY, Judge,

dissenting.

Because I am persuaded of the logic of Burney, supra, and believe that nothing is to be gained by remanding this case for an expensive and time consuming retrial at the conclusion of which the offending omission to give an instruction on attempt will be repeated, this time under sanction of court rule, I would affirm. I therefore respectfully dissent.

      . We believe the supreme court’s decisions in Thomas, Abreau, and Terry overruled our decision in State v. Diggs, 336 So.2d 446 (Fla. 4th DCA 1976) (we held it was harmless error not to instruct on attempted robbery when defendants were charged with and convicted of robbery), and negated the following language in Garrison v. State, 340 So.2d 1171, 1173 (Fla. 4th DCA 1976):
      [i]f the jury is given the opportunity of convicting the defendant of a lesser included offense which is greater than or at least equal in punishment to the attempt, failure to instruct on attempt may be harmless error.

      . Florida Rule of Criminal Procedure 3.510(a) now provides:
      Upon an indictment or information upon which the defendant is to be tried for any offense the jury may convict the defendant of:
      an attempt to commit such offense if such attempt is an offense and is supported by the evidence. The judge shall not instruct the jury if there is no evidence to support such attempt and the only evidence proves a completed offense.