author: SUGG, Presiding Justice,

text:
    Bill ROBY v. STATE of Mississippi.
    No. 53435.
    Supreme Court of Mississippi.
    Sept. 22, 1982.
    Rehearing Denied Oct. 13, 1982.

      Ea»es & Eaves, John Arthur Eaves, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before SUGG, P. J., and BROOM and BOWLING, JJ.
   SUGG, Presiding Justice,

for the Court:

Appellant was convicted of armed robbery and sentenced in the Circuit Court of the First Judicial District of Hinds County to serve thirty (30) years with the Mississippi Department of Corrections.

On January 13, 1981 at about 11:45 a. m., the Medical Center branch of the First Mississippi National Bank was robbed by a man wearing a ski mask, pinstriped overalls and carrying a sawed-off rifle. The money he took included One Thousand Dollars ($1,000) in bills with their serial numbers recorded called “bait money.” The man’s departure from the bank was testified to by a bank employee who saw him go out the front door, walk past two windows, stand by a white Chevrolet pickup truck with a blue left rear fender for less than one minute, and get into the truck and drive away.

Another bank employee followed the truck in a van in order to obtain the license number. The bank robbery and a description of the truck were reported to police as the truck pulled away heading south on North State Street. The employee who followed in the van saw the truck turn right off North State Street and proceed through the stadium parking lot. At this point the bank employee lost sight of the truck momentarily and drove through the stadium parking lot toward Woodrow Wilson Boulevard. As he approached Woodrow Wilson Boulevard between the State Board of Health and the State Highway Department buildings, he met a policeman with a walk-ie-talkie and told him that the vehicle the robber was driving was about to come over the hill toward them. The officer used his walkie-talkie to notify other police units in the vicinity that the suspected bank robber was approaching the intersection of Woodrow Wilson and North West Street. The bank employee testified that he gave no description of the truck to the police since they already had the description. From a distance of about fifty feet he watched two police officers arrest the driver of the truck. He estimated the total time that elapsed between when he began the chase and the arrest to have been from three to five minutes.

The man arrested by the officers was Bill Roby, the appellant. With him on the front seat of the vehicle was the money, pinstriped overalls, a ski mask, a sawed-off rifle and other items. Appellant was arrested on the basis of information the officers received on their radios.

The appellant argues that the subsequent search of his truck without a warrant after he was arrested and out of his presence was improper and that the items seized should have been excluded as the fruit of an illegal search and seizure. The United States Supreme Court has recently handed down its decision in United States v. Ross, - U.S. -, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) which holds that police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it may conduct a warrantless search of the vehicle as thorough as a magistrate could authorize by warrant. We consider this case to be dispositive of the warrantless search issue.

Nevertheless, the appellant claims that since he was under arrest, emergency circumstances no longer existed and the officers had ample time to obtain a warrant. There was an initial search in which the weapon was removed and unloaded for reasons of safety and a subsequent search by an investigator with the mobile crime lab of the Jackson Police Department who took and preserved the items in the truck for evidence as he was trained to do, without a warrant. We conclude that the initial search begun by the arresting officers was justified under the emergency doctrine exception, especially in view of the United States Supreme Court holding in United States v. Ross, and that the subsequent search by the investigator for the mobile crime lab was simply a continuation of that initial search. The decision of the trial court to overrule the motion to suppress was not error. Smith v. State of Mississippi, 419 So.2d 563 (1982).

The officers made their arrest at a busy intersection during the noon hour. They had to secure the suspect, protect the crime scene for investigation and make sure that traffic continued to flow as normally as possible. The investigator who arrived almost simultaneously with the other officers at the scene was specially trained in securing items for evidence. The robbery, pursuit, arrest and search all occurred within a fifteen minute time span. The evidence presented shows nothing more than an example of efficient, professional police work.

Appellant assigns error to the trial court’s refusal to allow introduction of a letter purported to be an admission by the appellant’s wife of a scheme to implicate him in the crime. The letter itself offers no such incriminating statement, it is not a dying declaration and does not fit within any other exception to the hearsay rule. It makes reference to marital problems and could support the appellant’s account of the events only by the vaguest innuendo. Therefore, it was properly excluded.

Appellant argues that he was unfairly prejudiced by comments made by the assistant district attorney. Defense counsel objected to the introduction of the state’s evidence on the ground that the chain of custody had not been shown. The assistant district attorney replied, “Your Honor, if counsel intends to show tampering, I’ll be happy to let the jury out and let him show evidence of tampering.” This remark was highly improper. It is the trial judge who determines whether or not a jury will be excused from the courtroom. We do not feel, however, that the remark was prejudicial.

The trial judge attempted to give the defense counsel opportunity to clarify his objection or to give any evidence he might have possessed which would rebut the chain of custody already established. Testimony showed that all items were marked and preserved at the scene, placed in the trunk of the investigator’s patrol car, carried to the police station and logged into the evidence and recovered property room. On the clay of trial the items were transported to the courtroom directly from the vault. It appears that the chain of custody was established and that defense counsel simply felt that it had not been. He failed to specify his objection despite the trial judge giving him ample opportunity to do so. We can only conclude, therefore, that the refusal of the trial court to grant a mistrial on this ground was proper.

The appellant has presented an intriguing story in which he accuses his wife of carrying out the crime of armed robbery and placing the money, weapon, clothing and other items in the appellant’s truck while he was in the Recovery Room Bar next door to the bank. However, the jury also had testimony from a state’s witness who testified that she saw the bank robber leave the building, go directly to the white Chevrolet truck, get in and drive away. Another state’s witness testified that the truck was stopped and the driver arrested between three and five minutes after the robbery occurred. The appellant admits that he was the driver. The jury had this chain of events along with the evidence of appellant and determined the appellant to be guilty as charged. We cannot say that their conclusion was not supported by the evidence. We hold that the proof of the appellant’s guilt was more than substantial and that the judgment of the trial court should be affirmed.

AFFIRMED.

PATTERSON, C. J., WALKER, P. J., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Charlie C. MALONE v. Sandra DEATON, Larry Malone, James (Pete) Malone, Marie Black and Joe Malone (The Heirs of Jim T. Malone, Dec’d.)
    No. 53789.
    Supreme Court of Mississippi.
    Sept. 22, 1982.
    Holland, Ray & Upchurch, Thomas A. Wicker, Tupelo, for appellant.
    Roy 0. Parker & Associates, Tupelo, for appellees.
    Before WALKER, P. J., and HAWKINS and DAN M. LEE, JJ.
   Appeal from Chancery Court, Lee County; George F. Adams, Chancellor.

AFFIRMED.


text:
    William Lee PHILLIPS v. STATE of Mississippi.
    No. 53717.
    Supreme Court of Mississippi.
    Sept. 22, 1982.
    Sidney J. Martin, Greenville, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and ROY NOBLE LEE and PRATHER, JJ.
   Appeal from Circuit Court, Washington County; Webb Franklin, Judge.

AFFIRMED.


text:
    Jimima CURRIE v. James E. MITCHELL, et ux.
    No. 53815.
    Supreme Court of Mississippi.
    Sept. 22, 1982.
    Jerry L. Bustin, Forest, for appellant.
    Thomas D. Lee, Forest, for appellees.
    Before SUGG, P. J., and BROOM and BOWLING, JJ.
   Appeal from Chancery Court, Scott County; Robert H. McFarland, Chancellor.

AFFIRMED.


text:
    GILCHRIST MACHINERY CO., INC. v. Joseph W. WEST.
    No. 53459.
    Supreme Court of Mississippi.
    Sept. 22, 1982.
    Beach, Luckett & Ross, Fred A. Ross, Jr., Jackson, for appellant.
    David 0. Butts, Tupelo, for appellee.
    Before SUGG, P. J., and BROOM and BOWLING, JJ.
   Appeal from Circuit Court, Monroe County; Fred Wicker, Judge.

AFFIRMED.


text:
    Leonard C. JOYNER and Ella L. Joyner v. GENERAL ELECTRIC CREDIT CORP.
    No. 53810.
    Supreme Court of Mississippi.
    Sept. 22, 1982.
    Carroll Rhodes, Hazlehurst, for appellants.
    Powell & Thrash, Gary D. Thrash, Jackson, for appellee.
    Before WALKER, P. J., and HAWKINS and DAN M. LEE, JJ.
   Appeal from Circuit Court, Copiah County; Joe N. Pigott, Judge.

AFFIRMED.


text:
    Earl Roy COOPER v. STATE of Mississippi.
    No. 53431.
    Supreme Court of Mississippi.
    Sept. 23, 1982.
    Rehearing Denied Oct. 13, 1982.
    Liston, Crull & Gibson, William Liston, Donald W. Bond, Winona, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, P. J., and BROOM and BOWLING, JJ.
   Appeal from Circuit Court, Montgomery County; Niles McNeel, Judge.

AFFIRMED.


author: McDONALD, Justice.

text:
    James H. NANCE, Petitioner, v. TOWN OF INDIALANTIC, Respondent.
    No. 60901.
    Supreme Court of Florida.
    July 29, 1982.
    Rehearing Denied Oct. 22, 1982.
    Mallory H. Horton of Horton, Perse & Ginsberg, Miami, for petitioner.
    Edward J. Silberhorn, Andrew A. Graham and Kerry I. Evander of Reinman, Harrell, Silberhorn, Moule, Boyd & Graham, Melbourne, for respondents.
   McDONALD, Justice.

We review Town of Indialantic v. Nance, 400 So.2d 37 (Fla. 5th DCA 1981), because of conflict with Allstate Mortgage Corp. v. City of Miami Beach, 308 So.2d 629 (Fla. 3d DCA), cert. denied, 317 So.2d 763 (Fla.1975). In a comprehensive and articulate opinion the district court stated in the instant case that “[a] prerequisite to the granting of a hardship zoning variance is the presence of an exceptional and unique hardship to the individual landowner, unique to that parcel and not shared by other property owners in the area.” 400 So.2d at 40. The court distinguished the “fairly debatable” test of reviewing zoning decisions from the “unique hardship” burden of proof for variances and held that “the proper standard of review in a zoning variance case is whether the lower tribunal had before it competent substantial evidence to support its finding. DeGroot v. Sheffield, 95 So.2d 912 (Fla.1957).” Id. (emphasis in original, footnote omitted). The district court has properly analyzed the facts and applied appropriate precedent, and we approve that court’s opinion and adopt it as our own. In so doing, we emphasize that the “fairly debatable” test should be used to review legislative-type zoning enactments, while a variance seeker must demonstrate a “unique hardship” in order to qualify for a variance. We disapprove Allstate Mortgage Corp. to the extent of conflict with the instant opinion.

It is so ordered.

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

ADKINS, J, dissents.


author: BOYD, Justice.

text:
    Dwight G. BOSIER, Appellant, v. STATE of Florida, Appellee.
    No. 59016.
    Supreme Court of Florida.
    Sept. 9, 1982.
    Jerry Hill, Public Defender and Eula Tut-tle Mason, Asst. Public Defender, Tenth Judicial Circuit, Susan Schaeffer, and Joseph F. McDermott, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen. and David T. Weis-brod, Asst. Atty. Gen., Tampa, for appellee.
   BOYD, Justice.

This cause is before the Court on appeal of a circuit court judgment in which section 893.135, Florida Statutes (1979), was upheld against constitutional challenge. Our jurisdiction was invoked under former article V, section 3(b)(1), Florida Constitution (1972). Appellate proceedings in this case were stayed pending the decision in State v. Benitez, 395 So.2d 514 (Fla.1981). In that case we upheld the challenged statute. Jurisdiction of this case was retained, however, for the purpose of resolving another question raised by the appellant.

Appellant was charged by information with violating section 893.135(l)(b)2., Florida Statutes (1979), which prohibits “trafficking in cocaine” and provides a mandatory minimum penalty for the sale, manufacture, delivery, importation, or possession of certain quantities of the drug. The first count of the information charged “delivery for consideration” of more than 200 grams of cocaine. The second count of the information charged possession of more than 200 grams of cocaine. The jury returned a verdict of guilty on the first count and not guilty on the second count.

Appellant argues that to accuse a person of delivery of illegal drugs for consideration is the same thing as to charge sale of the illegal drugs. He argues further that since he was in effect charged with sale and did not receive a jury instruction on attempted sale, his conviction must be reversed.

Appellant relies on several cases, including Milazzo v. State, 377 So.2d 1161 (Fla. 1979), State v. Stewart, 374 So.2d 1381 (Fla.1979), and D. G. R. v. State, 376 So.2d 460 (Fla. 1st DCA 1979), to support the proposition that to charge a defendant with “delivery for consideration” is to charge him with sale. A close analysis of these cases shows that they do not support appellant’s argument. In Stewart, the defendant questioned the sufficiency of the information to charge sale of marijuana, arguing that its failure to allege consideration rendered it fatally defective. The Court rejected the argument “because, by common understanding, consideration is a part of every sale.” 374 So.2d at 1383. Our holding that a “sale” accusation need not specifically allege consideration, however, does not require the conclusion that when consideration is alleged, the crime charged is “sale.” In Milazzo, the defendant sought reversal of his conviction for “selling or delivering cocaine.” 377 So.2d at 1162. This Court analyzed the statutory provisions and held that a defendant charged with delivery is not entitled to an instruction on attempt because the definition of the crime of delivery includes the attempt to commit the crime. See § 893.02(4), Fla.Stat. (1979). The crime of sale, on the other hand, does not include attempted sale. Therefore, there is a separate crime of attempted sale and a defendant charged with sale would be entitled to an attempt instruction. We allowed the conviction to stand because the defendant had been charged in the alternative with delivery or sale, and found guilty by the jury in the alternative, but we criticized the use of such ambiguous language in the charging document and the verdict. Milazzo offers no more support for appellant’s position than Stewart does. The D. G. R. case perhaps comes closest to supporting appellant’s position. The court there said that “ ‘sale’ is nothing more than ‘delivery’ with consideration.” 376 So.2d at 461. The authority cited for this statement, however, was a portion of the district court’s opinion in Milazzo that was subsequently criticized in this Court’s treatment of the case. 377 So.2d at 1162.

Appellant relies on the common usage and understanding that delivery and consideration are both important elements of a sale. However, such authority is of little value in the application of clear statutory definitions and does not require us to hold that one charged with “delivery for consideration” is charged with the crime of sale. The state argues that the information charged appellant with delivery, and that the words “for consideration” were merely surplusage. In support of this argument, the state points out that the instructions given to the jury, and the verdict returned, were phrased in terms of “delivery,” and the element of consideration was not mentioned. Thus the state concludes that this case is unambiguously one of delivery and not of sale. Although we detect some concern on the part of the state to avoid the negative consequences of alleging sale (i.e., the defendant is entitled to an attempt instruction), by drafting an ambiguous charging document, we do not find its position so inconsistent as to be unacceptable. We again state that we would discourage this tactic. The state should charge the accused with either delivery or sale, depending on the apparent facts to be proved.

Appellant asserts that under Lomax v. State, 345 So.2d 719 (Fla.1977), overruled in part, State v. Abreau, 363 So.2d 1063 (Fla.1978), the failure to instruct the jury on attempted sale was per se reversible error. The state responds by correctly noting that Lomax has been modified to the extent that it was inconsistent with the new Schedule of Lesser Included Offenses contained in the Florida Standard Jury Instructions in Criminal Cases (1981). See In Re Standard Jury Instructions in Criminal Cases, Nos. 57,734 & 58,799 (Fla. April 16, 1981). If the appellant had indeed been charged with sale, the state’s argument continues, so that the court would have erred in not charging on attempt, appellant would be entitled to an attempt instruction on retrial only if such an instruction were supported by some evidence. See Burney v. State, 402 So.2d 38 (Fla.2d DCA 1981). The parties disagree on whether there was such evidence, but since we find that appellant was not charged with sale, we do not reach the question.

The state argues in the alternative that if indeed appellant was charged with and convicted of sale, then he was also convicted of delivery, because delivery is a necessary element of every sale. While we need not reach the merits of this argument, it does point out the weaknesses in the statutory scheme that have given rise to this controversy and to the one in Milazzo. Sale and delivery are separate offenses with separate definitions. It takes more of an evidentiary showing to prove sale than delivery, because the element of consideration must be established. But the two offenses are assigned equal culpability. Therefore, the legislature has provided no. incentive for prosecutors to charge and prove the crime of sale, because the equally culpable crime of delivery can be more easily proved and carries identical penalties.

A further definitional problem has been briefly referred to already and was discussed in Milazzo: the discrepancy by which one accused of sale is entitled to an attempt instruction if there is evidence to support it but one accused of delivery is never entitled to an attempt instruction. The prosecutor in the present case admitted that the charge of “delivery for consideration” was drafted with the intention of denying the defendant the possible benefit of an attempt instruction. It seems to us that these problems can only be cured legislatively.

We hold that appellant was charged with delivery and that the trial court was correct in refusing to instruct the jury on attempted sale. The judgment of conviction is therefore affirmed.

It is so ordered.

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

McDONALD and EHRLICH, JJ., concur in result only.

SUNDBERG, J., dissents.

      . (1) Except as authorized in this chapter or in chapter 500:

      (b) Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine or of any mixture containing cocaine, as described in s. 893.03(2)(a), is guilty of a felony of the first degree, which felony shall be known as “trafficking in cocaine.” If the quantity involved:

      2. Is 200 grams or more, but less than 400 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 5 calendar years and to pay a fine of $100,000.

      . Milazzo v. State, 359 So.2d 923, 924 (Fla.3d DCA 1978).


author: ADKINS, Justice. McDONALD, Justice,

text:
    Carl Ray SONGER, Appellant, v. STATE of Florida, Appellee.
    No. 59852.
    Supreme Court of Florida.
    Sept. 9, 1982.
    Rehearing Denied Oct. 29, 1982.

      Joseph Jordan of Bailey & Jordan, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen. and James S. Pur-dy, Asst. Atty. Gen., Tampa, for appellee.
   ADKINS, Justice.

We have for review an appeal from an order denying a motion to vacate judgment and death sentence. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

Appellant, Carl Ray Songer, was convicted of first-degree murder and sentenced to death. This Court affirmed both the conviction and the sentence. See Songer v. State, 322 So.2d 481 (Fla.1975) (Songer I). The United States Supreme Court vacated appellant’s sentence and remanded the case to this Court for reconsideration in light of the ruling in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). See Songer v. Florida, 430 U.S. 952, 97 S.Ct. 1594, 51 L.Ed.2d 801 (1977).

This Court, in turn, remanded the case to the trial court for resentencing where appellant was again sentenced to death. We affirmed the second sentence. See Songer v. State, 365 So.2d 696 (Fla.1978) (Songer II).

In September, 1980, a warrant ordering appellant’s execution during the week of October 3-10, 1980, was signed by the governor. Execution was stayed by this Court and the warrant has expired. Appellant requested a hearing before the trial court on a motion to vacate judgment and death sentence. The request for a hearing was granted and the hearing set for the day requested.

At the hearing, appellant orally moved for a thirty-day continuance of the hearing and was refused. At the conclusion of the hearing, the trial court denied the motion to vacate. This appeal followed.

Appellant first argues that at sentencing, the court failed to instruct the jury that the state had the burden of proving beyond a reasonable doubt that the death penalty was appropriate. Instead, he contends, the jurors were given the impression that there was a presumption of aggravating circumstances and that appellant had to prove that he was worthy of mercy. The failure to raise this issue on direct appeal does not bar its consideration now, he asserts, because an issue of fundamental error may be raised at any time.

We do not agree that the trial court fundamentally erred on this point and do agree with the trial court that the issue should have been raised on direct appeal. We note in passing, however, that appellant was not burdened with proving that he should not be put to death — the state properly was required to show the existence of aggravating factors warranting the sentence imposed.

Appellant’s claim that the trial court failed to properly instruct the jury on the scope of mitigating circumstances which may be considered in sentencing has already been considered by this Court. See Songer II, on rehearing. Thus, it too is not a proper issue for review in this proceeding.

The questions of whether appellant, on resentencing, actually saw his presen-tence investigation report, whether the homicide was committed to disrupt a governmental function, whether appellant’s age or his “insignificant” criminal history should have been considered as mitigating factors, whether appellant was under a sentence of imprisonment at the time that he committed the act, and whether the jury should have been informed of the legal consequences of a life sentence are all matters which should have been raised on direct appeal. As such, we will not consider them in a 3.850 proceeding.

The next point raised, whether appellant was deprived of effective assistance of counsel at all stages of his trial, is cognizable in a 3.850 proceeding, but we do not agree that the representation provided was ineffective. Appellant first argues that his attorney only consulted him on three occasions prior to trial, and never for more than an hour. The trial court, however, found that the two men had several conferences on a variety of subjects, and we accept that finding as correct.

As further evidence of inadequate representation, appellant notes that no witnesses were called to testify regarding his drug usage. He lists several people, including his companion at the time of the killing, whose testimony supposedly could have been used to assert a defense of impaired mental condition resulting from extensive drug use. 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.

The same is true with regard to the legal representation at the sentencing and resentencing phases of the trial. Appellant was put on the stand to testify on his own behalf, but his counsel need not have called other witnesses in an attempt to prove the existence of other mitigating circumstances which he evidently did not believe existed. And, as appellee notes, counsel’s failure to give a closing argument at the penalty phase was not without reason; the state, in return, waived argument of aggravating factors. Finally, although appellant claims that there is no showing that even after his Gardner hearing he was ever shown his presentence report, he fails to allege that he was damaged thereby. Also, it is clear that his attorney did see the report. The burden of showing representation so inadequate that a new proceeding is required has not been met.

As his third point, appellant argues that the trial court erred in refusing his motion for a thirty-day continuance of the hearing on his rule 3.850 motion. He contends that the time was needed to find expert witnesses to testify about demographics and the effects of extended drug usage. Because the extra time v/as not given, states appellant, the hearing on the motion to vacate was not a full or fair one. The facts suggest otherwise.

Appellant’s counsel in the rule 3.850 proceeding was appointed six months before the hearing was held. That was more than enough time to look for and confer with expert witnesses.

The date on which the rule 3.850 hearing was set and held was that requested by appellant. It was not sprung on him unannounced or in any other surprising fashion. His attorney telephoned the presiding judge several days in advance and asked that it be set on that day or the one before it.

The explanation of why the continuance was required, was vague and inconclusive. No experts were named and there was no indication of what they were intended to prove that would be relevant in a 3.850 proceeding. The motion for continuance seems quite illusory; an attempt to buy time, hoping that something might turn up at some point. Considering the foregoing, the trial court did not abuse its discretion by denying the motion for continuance.

The last point raised is that the trial court erred in finding Florida’s death penalty statute constitutional. We have held, however, that it is not unconstitutional. Booker v. State, 397 So.2d 910 (Fla.1981).

Having reviewed each point raised by appellant, and finding that none warrant disturbance of the trial court’s ruling herein, the same is hereby affirmed.

It is so ordered.

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

McDONALD, Justice,

dissenting:

I dissent because I think the penalty instructions were constitutionally infirm.


author: OVERTON, Justice,

text:
    Karen KELLER, Petitioner, v. The TWENTY-FOUR COLLECTION, INC., Respondent.
    No. 60034.
    Supreme Court of Florida.
    Sept. 9, 1982.
    Steven R. Berger, Miami, for petitioner.
    Stephen L. Raskin, Miami, for respondent.
   The Court having accepted jurisdiction and heard argument, and upon further consideration of the matter, we have determined that the Court is without jurisdiction. Therefore, the petition for review is denied.

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

OVERTON, J., dissents with an opinion.

OVERTON, Justice,

dissenting.

I strongly dissent and recommend that the legislature immediately review section 542.12, Florida Statutes (1977), because of the construction now placed on it by this Court and the district courts of appeal. The circumstances of this case clearly indicate that the application of the statute as it has been construed by the instant district court allows “unjust results” and places employees who must sign noncompetition agreements at a distinct disadvantage with their employers. I believe the statute should be amended to expressly state that courts in applying the statute may use traditional equitable principles to avoid the unjust result illustrated by this case.

I find direct conflict with those cases which require a trial judge to find irreparable harm before he may grant injunctive relief. In Stoner v. South Peninsula Zoning Commission, 75 So.2d 831, 832 (Fla.1954), Justice Terrell said, “[T]he rule in this State is that injunction issues only to prevent irreparable injury ” In Uni-Chem Corp. of Florida v. Maret, 338 So.2d 885, 887 (Fla.3d DCA 1976), a noncompetition agreement case, a unanimous court upheld a denial of the entry of an injunction by the trial judge: “[W]here the trial court found no irreparable damages the order appealed should be affirmed.” Further, in Auto Club Affiliates v. Donahey, 281 So.2d 239, 243 (Fla. 2d DCA), cert. denied, 285 So.2d 28 (Fla.1973), another noncompetition agreement ease, the court said, “Such contracts may be determined to be reasonable if it is necessary to protect the interests of the employer ... without inflicting any unduly harsh or oppressive result on the employee." (Emphasis added.) When considering non-competition covenants, this Court has never specifically addressed the issue of the employer’s need to show irreparable injury or the employee’s need to show an oppressive or harmful result. See Miller Mechanical, Inc. v. Ruth, 300 So.2d 11 (Fla.1974); Akey v. Murphy, 238 So.2d 94 (Fla.1970); Capelouto v. Orkin Exterminating Co., 183 So.2d 532 (Fla.), appeal dismissed, 385 U.S. 11, 87 S.Ct. 78, 17 L.Ed.2d 10 (1966). The diverse views of the district courts of appeal put that issue in conflict and we should directly answer it.

It is incomprehensible to me that a trial judge is prohibited from considering an “unjust result” when determining whether injunctive relief is appropriate. This was nonetheless the holding of the Third District Court of Appeal. See Twenty-Four Collection, Inc. v. Keller, 389 So.2d 1062 (Fla. 3d DCA 1980).

The uncontroverted facts demonstrate the inequity of the district court’s decision. They reflect that Ms. Keller was an experienced buyer of very specialized and expensive women’s wearing apparel. Her employer, Twenty-Four Collection, brought her to Miami from the same type of employment in Phoenix, Arizona, and approximately eighteen months later discharged her. Ms. Keller’s employment contract contained a noncompetition covenant, found by the trial court to be valid, which provided in part:

In the event of the termination, voluntarily or involuntarily, of the undersigned’s employment with the EMPLOYER, for any reason, then for a period of two (2) years from the date of said termination, the undersigned employee will not engage, in any capacity, directly or indirectly, in or be employed by any business in Dade, Broward or Palm Beach Counties, Florida, similar to the kind or nature of business conducted by the EMPLOYER during the employment.

Keller testified without contradiction that she was discharged by Twenty-Four’s president after he wrongfully accused her of something she did not do, threatened her with expensive legal action if she went to work for one of his company’s competitors, and stated that he would make an example of her for his other employees. This testimony was totally unrefuted. One month after her discharge, Keller took another position with Cache, one of Twenty-Four’s major competitors. Twenty-Four brought this action alleging that Keller was in violation of the noncompetition clause, that no adequate remedy at law was available, and that the corporation would be irreparably harmed by Keller’s breach of the contract. Both Keller and Twenty-Four agreed to entry of a temporary injunction which restrained Keller from dealing with or contacting any of Twenty-Four’s former customers and certain named distributors which serviced Twenty-Four, but which allowed her to continue her new employment. Twenty-Four was not satisfied, however, and continued to seek total injunctive relief under the contract including total prohibition of Keller’s employment with Cache. Approximately six months later, a final hearing was held, after which the trial judge entered a final judgment finding that only the limited terms of the temporary injunction should be made permanent. He concluded that Twenty-Four failed to sustain its burden of proof to justify any further injunctive relief or damages.

The district court of appeal reversed, concluding that “[t]he only authority the court possesses over the terms of a noncompetition agreement is to determine, as the statute provides, the reasonableness of its time and area of limitations.” This holding coincides with Twenty-Four’s argument, which stated, through counsel, that: “We have not suffered any legal damages, we agree to that. We have not pleaded any legal damages. All we are required to show is violation of the agreement. Additionally, we are required to show the geographical area is reasonable and the time period is reasonable.”

In my view, the direction by the district court to trial judges to limit their application of equitable principles in noncompetition employment covenants is erroneous. The decision allows courts to use injunctive power to totally restrict an employee’s ability to work in his or her chosen field with only a limited application of equitable principles and irrespective that an employer may have discharged the employee without cause. The employer argued, and the district court agreed, that the determination of appropriate injunctive relief should be made without consideration of whether the discharge was voluntary or involuntary or with or without cause and without consideration of imposing only such injunctive relief as may be necessary to protect against irreparable harm.

Under the facts of this case, the district court decision results in an extreme injustice. Worse, the decision is the product of a supposedly equitable remedy, injunctive relief sought in an equity court, without the use of established equitable principles basic to the equity court’s jurisdiction, specifically the long-established equitable principles that (1) he who seeks equity must do equity, and (2) irreparable harm must be shown. The business employer in this cause has not only failed to show compliance with the requirements of these principles but has successfully argued that they are not necessary in this type of proceeding because of section 542.12(2) and the construction this Court has placed on that statute.

My conclusion from this record is that the trial judge found that Twenty-Four would suffer no irreparable damage as long as the terms of the original temporary injunction remained in force, and that the trial court properly applied equitable principles in reaching its original final judgment. The evidence as found by the trial judge clearly establishes that the totally prohibitory injunction sought by the employer would be overly burdensome in effect, was not necessary to protect against irreparable damage, and would produce an unjust result.

Section 542.12, Florida Statutes (1977), does not, in my view, restrict the trial judge in his use of traditional equitable principles in enforcing, by injunction, a covenant not to compete. The statute’s unambiguous terms state: “Said agreements may, in the discretion of a court of competent jurisdiction, be enforced by injunction.” (Emphasis added.) I distinguish on their facts the cases on which the majority bases its decision, Miller Mechanical, Inc. v. Ruth, 300 So.2d 11 (Fla.1974); Akey v. Murphy, 238 So.2d 94 (Fla.1970); Capelouto v. Orkin Exterminating Co., 183 So.2d 532 (Fla.), appeal dismissed, 385 U.S. 11, 87 S.Ct. 78, 17 L.Ed.2d 10 (1966); accord Atlas Travel Service, Inc. v. Morelly, 98 So.2d 816 (Fla. 1st DCA 1957). I do not think any of these cases were intended to limit a trial judge in his application of equitable principles to use the appropriate injunctive relief in the least restrictive manner necessary to prevent irreparable damage and to provide justice between the parties. The factor which I find most disturbing in this case is the statement in the district court's opinion that an “unjust result” is not a consideration which should be taken into account by a court of equity.

Traditionally, our Court has developed equitable principles to ensure that the in-junctive powers will be used cautiously and only to the extent necessary as the individual case may require. The instant facts do not demand total prohibitory injunctive relief. It is my belief that we should never, by our laws or court determination, totally restrict an individual from earning a living in his or her chosen calling, particularly when the individual is an employee not used in a management capacity, except when absolutely necessary to prevent irreparable damage. Respondent-employer has not shown this type of necessity or irreparable harm, but, conversely, freely admits it has suffered no legal damages and appears to have invoked the trial court’s equity jurisdiction principally to set an example for current employees.

I do not believe the legislature intended that section 542.12 be construed to limit trial courts in their use of equitable principles when determining the appropriate in-junctive relief. Because the statute has been so construed, I strongly urge the legislature to modify or repeal section 542.12 in order that the courts may use proper equitable principles when injunctive relief is sought to enforce noncompetition agreements.

I would reverse and disapprove the opinion of the district court of appeal and reinstate the final judgment entered by the trial court.


author: BOYD, Justice. ALDERMAN, Chief Justice,

text:
    Isaac CHAPPELL, Petitioner, v. FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent.
    No. 60838.
    Supreme Court of Florida.
    Sept. 9, 1982.
    Michael A. Campbell, Winter Haven, and Rochelle Z. Catz, Fort Myers, of the Florida Rural Legal Services, Inc., for petitioner.
    Susan B. Kirkland, Asst. Gen. Counsel, Dept, of Health and Rehabilitative Services, Tallahassee, for respondent.
   BOYD, Justice.

This cause is before the Court on petition for review of an order of a district court of appeal dismissing petitioner’s appeal. Chappell v. Florida Department of Health and Rehabilitative Services, No. 80-1076 (Fla. 5th DCA June 4, 1981). The order of dismissal rendered after an earlier remand of the case to the trial court. Chappell v. Florida Department of Health and Rehabilitative Services, 391 So.2d 358 (Fla. 5th DCA 1980), conflicts with a decision of another district court of appeal, Saez v. Department of Health and Rehabilitative Services, No. 71-758 (Fla.2d DCA May 5, 1981). Therefore, we have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

Petitioner filed a notice of appeal with the district court seeking review of administrative action of the Department of Health and Rehabilitative Services. Instead of including the filing fee, petitioner filed a certificate of indigency executed by an employee of the Department “as Department Clerk.” The certificate was accompanied by an affidavit of insolvency and a certificate filed by petitioner’s counsel, an employee of Greater Orlando Area Legal Services, Inc. The clerk of the district court of appeal refused to accept the filings without payment of the required fee. Petitioner then asked the district court to review its own clerk’s action in refusing to accept the certificate of indigency in lieu of the filing fee. After receiving briefs and hearing oral argument on the issue, the district court rendered a decision. The court held that section 57.081, Florida Statutes (Supp. 1980), as amended by chapter 80-348, Laws of Florida, applies to proceedings in appellate courts. The court also held, however, that Florida Rule of Appellate Procedure 9.430 and Florida Rule of Judicial Administration 2.040(b)(3) require that a certificate of indigency be issued by the lower tribunal itself and not'by its clerk. The court explained that to obtain such a certificate a party must file an affidavit and that the attorney, if there is one, must file the certificate required by section 57.081. The district court then went further and found an implied requirement that the “attorney should include in his affidavit a statement of whether or not, to the best of his knowledge, his employer, association or agency has funds available to pay appellate filing fees.” Chappell v. Florida Department of Health and Rehabilitative Services, 391 So.2d at 361. The court remanded the case to allow petitioner an opportunity to follow these procedures.

Petitioner’s attorney refused to submit to the Department an affidavit pertaining to his employer’s ability to pay the appellate filing fee. On the basis of this refusal the Department denied petitioner’s motion to be certified as an indigent for purposes of the appeal. The district court denied review of the Department’s action on the matter and ordered petitioner to pay the filing fee within fifteen days. Petitioner failed to do so, and the court dismissed the appeal.

The issue before us is whether, in order to obtain a certificate of indigency for the client, an attorney representing an indigent client in a civil matter on appeal is required to file an affidavit with the lower tribunal stating whether his employer, association, or agency has funds available to pay the client’s filing fee. The applicable statute is section 57.081(1), Florida Statutes (Supp. 1980), which provides:

(1) Any indigent person who is a party or intervenor in any judicial or administrative agency proceeding or who initiates such proceeding shall receive the services of the courts, sheriffs, and clerks, with respect to such proceedings, without charge. No prepayment of costs to any judge, clerk, or sheriff is required in any action when the party has obtained from the clerk in each proceeding a certification of indigency, based on an affidavit filed with him that the applicant is indigent and unable to pay the charges otherwise payable by law to any of such officers. When the person is represented by an attorney, the affidavit shall be supported by a written certificate signed by the attorney representing the person that he has made an investigation to ascertain the truth of the applicant’s affidavit and he believes it to be true; that he has investigated the nature of the applicant’s position and in his opinion it is meritorious as a matter of law; and that he has not been paid or promised payment of any remuneration for his service and he intends to act as attorney for applicant without compensation. On the failure or refusal of the clerk to issue a certificate of indigency, the applicant is entitled to a review of his application for the certificate by the court having jurisdiction of the cause of action.

As the district court correctly stated, the statute plainly contemplates that indigent persons will not be required to pay the costs of pursuing legal actions in judicial and administrative proceedings. This provision includes appellate courts. Fields v. Zinman, 394 So.2d 1133, 1139 (Fla. 4th DCA 1981) (Hurley, J., concurring); Nichols v. Florida Parole and Probation Commission, 393 So.2d 13 (Fla. 1st DCA 1980); Kleinschmidt v. Estate of Kleinschmidt, 392 So. 2d 66 (Fla.3d DCA 1981).

The district court was also correct in saying that in an appellate proceeding, it is the lower tribunal, and not the lower tribunal’s clerk, that has the responsibility of granting a certificate of indigency. The procedure is governed by Florida Rule of Appellate Procedure 9.430 and Florida Rule of Judicial Administration 2.040(b)(3). The district court said:

To the extent there is a conflict between the rules and the statute as to matters of procedure rather than substantive law, the rules must prevail. Therefore, the obtaining of a “certification of indigency from the clerk” of the lower tribunal will not suffice. A party seeking to obtain waiver of appellate court fees must file a motion in the lower tribunal or administrative agency, accompanied by affidavits showing his inability to pay fees. In addition, if he is represented by an attorney, the attorney must file the certificate required by Chapter 80-348. The attorney should include in his affidavit a statement of whether or not, to the best of his knowledge, his employer, association or agency has funds available to pay appellate filing fees, and the lower court or agency may consider those matters in determining whether or not the applicant is able to pay the filing fees. The lower court or agency will make these determinations, which shall be reviewable by this court pursuant to Rule 9.430.

391 So.2d at 361 (footnotes omitted).

Petitioner argues that the district court erred in that portion of its decision where it held that an indigent litigants attorney is required to state by affidavit whether his employer or organization has funds available to pay the filing fee. He argues that this requirement is not found in the statute and cannot be created by judicial construction.

Respondent contends that the legislative policy of waiving fees for those unable to pay was not intended to apply to persons represented by publicly financed legal services organizations. Respondent asserts that since such organizations have funds budgeted for the purpose of meeting litigation costs, their clients do not properly fall into the category of persons unable to pay. Respondent would have us conclude that the district court’s requirement was properly drawn from the statute by implication.

We find that the district court’s requirement that the indigent’s attorney certify whether his employer or organization has funds available to pay a filing fee is not authorized by the statute. Section 57.081(1) requires the attorney to file a certificate in support of the client’s affidavit of indigen-cy, but does not require the attorney to state whether there are other funds available for the payment of the fee. This requirement cannot be supplied by judicial construction.

It is true that the statute says the attorney’s certificate should state “that he has not been paid or promised payment of any remuneration for his service and he intends to act as attorney for applicant without compensation.” It would appear that an attorney earning a salary from a legal services organization would not be able to certify such fact unless the statutory words were construed to refer to compensation received from the client. Nevertheless the statute is clear in indicating that it is the litigant’s inability to pay, and not the lack of funding from some other source, that determines whether the litigant should be granted a certificate of indigency. The statute does not recognize the status of salaried legal services lawyers as counsel for indigent persons, but neither does it authorize the courts to impose the requirement found by the district court.

We therefore quash the district court’s decision dismissing petitioner’s appeal. We remand with directions that the appeal be reinstated and that petitioner be allowed to ask the Department for a certificate of indigency.

It is so ordered.

OVERTON, SUNDBERG, McDONALD and EHRLICH, JJ., concur.

ALDERMAN, C. J., dissents with an opinion, with which ADKINS, J., concurs.

ALDERMAN, Chief Justice,

dissenting.

I would approve the decision of the Fifth District. In my view, the requirement that the attorney include in his affidavit a statement of whether or not his employer, association, or agency has funds available to pay appellate filing fees is implicit in the language of the statute. The legislative intent, in promulgating section 57.081, was to waive costs in “any judicial or administrative proceeding” for those persons who do not have funds available to pay for those costs. But this certainly was not meant to include those whose lawyers, providing free legal services to the indigent, are employed by legal services organizations which receive funding for legal costs including filing fees from public and private sources. The legislature surely could not have intended to allocate tax dollars to an agency for the purpose of financing appeals for indigents and then to allow that agency to obtain a waiver of those costs. This amounts to placing a double burden on the taxpayers to fund the appeals of indigents. Likewise, if these associations are federally funded or funded from charitable sources, if funds are available for these costs, the agency should not be permitted to obtain a waiver of these costs.

ADKINS, J., concurs.

      . Rule 9.430. Proceedings by Indigents
      A party who has the right to seek review without payment of costs shall file a motion in the lower tribunal, with an affidavit showing his inability to pay fees and costs or to give security therefor. If the motion is granted, the party may proceed without further application to the court and without prepayment of fees or costs in either the lower tribunal or the court or the giving of security therefor. If the motion is denied, the lower tribunal shall state in writing the reasons therefor. Review shall be by motion filed in the court.

      . Rule of Judicial Administration 2.040 pertains to the district courts of appeal. Paragraph (b)(3) provides:
      (3) Filing Fee. In all cases filed in the court, the clerk shall require the payment of a fee as provided by law at the time the notice, petition, or other initial pleading is filed. The payment shall not be exacted in advance in appeals in which a party has been adjudicated insolvent for the purpose of an appeal or in appeals in which the state is the real party in interest as the moving party. The payment of the fee shall not be required in habeas corpus proceedings, or appeals therefrom.


author:
PER CURIAM.
      BOYD, Justice,

text:
    THE FLORIDA BAR, Complainant, v. John David BAKER, Respondent.
    No. 60971.
    Supreme Court of Florida.
    Sept. 9, 1982.
    John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel, and Dale E. Krout, Jr.; Bar Counsel, Tallahassee, of The Florida Bar, for complainant.

      No appearance, for respondent.
   PER CURIAM.

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

The referee finds:

1. December 1978 respondent acting as an attorney for the executor of an estate caused securities to be sold belonging to the estate proceeds of which were deposited in his general trust account.
2. Subsequently, respondent tendered a check to one of the beneficiaries of the estate from his general trust account which was returned reflecting insufficient funds.
3. A second check drawn on respondent’s trust account to the same beneficiary was again returned for insufficient funds.
4. Between December 1978 and October 1979, the monthly balances in respondent’s trust account were well below the sum required to pay the inheritance which the named beneficiary was entitled to receive although sufficient estate funds were placed in respondent’s trust account.
5. Between November 1971 and January 1973, respondent issued approximately ten- checks totaling $35,000 from the estate account to himself or his law firm. This was accomplished without prior court approval and without disclosure to or approval by the beneficiaries of the estate. The beneficiaries of the estate were forced to institute proceedings to compel respondent to file an accounting.
6. Respondent reached a settlement with the beneficiaries of the estate in November 1979.
7. As a result of this settlement, the Monroe County Surrogate’s Court issued a decree disallowing fees and commissions claimed by respondent and directed respondent to reimburse the estate in the amount of $22,880.40 which reflected unauthorized transfers of estate funds for nonestate purposes.
8. Respondent has reimbursed those clients all monies to them.
9. Disciplinary proceedings were brought in the State of New York against respondent which culminated in an order entered by the Supreme Court of New York, Appellate Division, Fourth Judicial Department, on September 26, 1980.
10. In the disciplinary proceedings, respondent filed a response directed towards mitigation.
11. The order of the Supreme Court of New York found respondent “guilty of unprofessional conduct in that he failed to properly identify and preserve funds of his clients (DR 9-102); failed to maintain complete records of all funds and properties of his clients and to render appropriate accounts to his clients regarding them (DR 9 — 102(b)(3); commingled and converted clients’ funds (22NYCRR1022.-5(a)); failed to maintain thorough and correct records of clients’ fiduciary accounts and withdrew from the accounts monies for his own compensation and used without accounting and reporting to his clients before hand (22NYCRR1022.-5(B)).”
12. This court’s order suspended respondent from the practice of law in the State of New York for a period of two years and until further order of the court.

The referee recommends that John David Baker be found guilty of violating Florida Bar Code of Professional Responsibility, Disciplinary Rule 9-102, and Florida Bar Integration Rule, article XI, Rule 11.02(4), and that he be disbarred for his misconduct which amounted to theft.

We approve the referee’s findings and recommendations. John David Baker is hereby disbarred from the practice of law in Florida. Costs in the amount of $357.59 are taxed against Baker.

It is so ordered.

ALDERMAN, C. J., and OVERTON, MCDONALD and EHRLICH, JJ., concur.

ADKINS and SUNDBERG, JJ., dissent.

BOYD, Justice,

dissenting.

I would impose the same penalty as New York State.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Charles F. THOMPSON, II, Respondent.
    No. 61975.
    Supreme Court of Florida.
    Sept. 9, 1982.
    Richard B. Liss, Bar Counsel, Miami, for complainant.
    Starr W. Horton, and Horton, Perse & Ginsburg, Miami, for respondent.
   PER CURIAM.

This matter is before the Court on Respondent’s Amended Petition to Resign Without Leave to Apply for Readmission pursuant to Article XI, Rule 11.08 of the Integration Rule of The Florida Bar.

The Petition states:

1.This Amended Petition is filed pursuant to Rule 11.08(2)(4)(6), Integration Rule of The Florida Bar. A Petition for Leave to Resign was initially filed April 20, 1982, in which readmission after the expiration of three (3) years was a condition thereof that was rejected by The Florida Bar in its Response of May 20, 1982, and denied by the Supreme Court of Florida, June 22, 1982.
2. Petitioner, as previously alleged, is a duly licensed member of The Florida Bar, having been admitted to practice in 1969, but has not been actively engaged in the practice since 1971. Disciplinary proceedings pending before the Honorable L. Arthur Lawrence, Jr., Circuit Judge of the Third Judicial Circuit of Florida, as Referee pursuant to the order of the Supreme Court of Florida entered May 7, 1981, have been stayed pursuant to his Order of April 23,1982, following a final hearing on March 11, 1982, and his findings on March 23,1982, that the Petitioner had violated Rule 1-102(A)(3) and 1-102(A)(4), Code of Professional Responsibility.
3. This controversy grew out of conduct of the Petitioner following his entry into a written contract for the purchase of real property in Dade County, Florida, for a price of $175,000.00, of which amount $125,000.00 was to be evidenced by a note and mortgage. A delayed closing of the transaction resulted in the sellers executing a deed that was purportedly placed in escrow with an associate of the Petitioner but thereafter used by the Petitioner to negotiate an institutional first mortgage with Atlantic Federal Savings and Loan Association, in the amount of $125,000.00. He represented himself as owner of the property, free of any encumbrances. Subsequently, the transaction was closed, with the sellers receiving a purchase money note and mortgage in the amount of $125,000.00, with the balance of the purchase price paid in cash from the proceeds of the mortgage from Atlantic Federal. The sellers denied consent or knowledge as to the existing institutional first mortgage.
Foreclosure proceedings were initiated by the sellers and Atlantic Federal in 1977, and thereafter, the litigation was settled. In compliance with the stipulation of settlement of January 5,1978, the Petitioner paid to the sellers, Atlantic Federal, and their attorneys $75,000.00, together with $11,014.00 of income received from the property during the pendency of the litigation. Title to the property was conveyed to the sellers. Releases were executed by all parties except Atlantic Federal, who retained the note signed by the Petitioner.
The attorney for Atlantic Federal filed a complaint with The Florida Bar Grievance Committee of the Eleventh Judicial Circuit on March 29, 1978.
4. The Florida Bar in its Response filed May 20, 1982, as aforesaid, stated:
“The Florida Bar would not oppose an amended Petition for Leave to Resign which states that it is without leave to apply for readmission permanently and agrees to pay all costs of these proceedings.”

The Florida Bar having now filed its response supporting the Petition for Leave to Resign on the conditions set forth above, and the Court having reviewed the same and determined that the requirements of Rule 11.08(3) are fully satisfied, the Amended Petition for Leave to Resign is hereby approved and Charles F. Thompson, IPs name is hereby stricken from the roll of attorneys in the State of Florida effective this date.

Costs in the amount of $2,686.45 are hereby taxed against Respondent.

It is so ordered.

ALDERMAN, C. J., and BOYD, OYER-TON, McDonald and EHRLICH, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Stewart M. MIRMELLI, Respondent.
    No. 62107.
    Supreme Court of Florida.
    Sept. 9, 1982.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, Richard B. Liss, Bar Counsel, Miami; and Jacquelyn Plasner Needelman, Bar Counsel, Fort Lauderdale, of The Florida Bar, for complainant.
    Louis M. Jepeway, Miami, Florida, 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 article XI, Rule 11.02(4) of the Integration Rule of The Florida Bar and Disciplinary Rules 6-101(A)(3), 7-101(A)(l), (2) & (3), 7-102(A)(5), 9-102(B)(3) & (4) of the Code of Professional Responsibility of The Florida Bar. We approve the Petition, and we hereby suspend Respondent, Stewart M. Mirmelli, for a period of ninety (90) days, said suspension shall be effective October 11, 1982, thereby giving respondent thirty (30) days to close out his practice and take the necessary steps to protect his clients. Respondent shall not accept any new business.

Costs in the amount of $2,654.35 are hereby taxed against the Respondent.

It is so ordered.

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


text:
    Paul William SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 58588.
    Supreme Court of Florida.
    Sept. 13, 1982.
    Robert M. Leen of Leen & Schneider, Hollywood, for appellant.
    Paul Morris, Miami, Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   The Motion for Substitution of Counsel is granted; Leave to Supplement Motion for Rehearing and Brief and Argue the Applicability of Enmund v. Florida, - U.S. -, 102 S.Ct. 3368, 73 L.Ed.2d 1140 is denied. The Motion to Supplement has been treated as a proper Notice of Additional Authority. The Motion for Rehearing, 411 So.2d 866 (Fla.), is denied.

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

OVERTON, J., dissents with an opinion.

OVERTON, Justice,

dissenting.

I dissent from the denial of the petition for rehearing. There is a serious disparity in the sentencing of Scott and his codefend-ant, Kondian, who pleaded guilty to murder and was sentenced to forty-five years imprisonment after the petitioner, Scott, was tried by a jury, convicted of murder, and sentenced to death. Petitioner correctly asserts that we have not addressed this issue in these proceedings. Even when the accomplice has been sentenced subsequent to the sentencing of the defendant seeking review, it is proper for this Court to consider the propriety of disparate sentences, see Witt v. State, 342 So.2d 497, 500 (Fla.1977), to determine whether a death sentence is appropriate given the conduct of all participants in committing the crime. We should consider this issue at this time, rather than wait and see it arise for a second review in a motion under Florida Rule of Criminal Procedure 3.850. It appears from the record that the trial judge considered the respective roles of Scott and his code-fendant in committing the murder, and this is an issue we can decide in this review.

I would, therefore, grant the petition for rehearing to allow this Court to address the appropriateness of Scott’s death sentence in view of the sentence imposed on his code-fendant. This issue should not be left unresolved.


author: PER CURIAM. McDONALD, Justice,

text:
    Rufus Eugene STEVENS, Appellant, v. STATE of Florida, Appellee.
    No. 57738.
    Supreme Court of Florida.
    Sept. 14, 1982.

      John R. Forbes, Jacksonville, for appellant.
    Jim Smith, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This cause is before the Court on appeal from a judgment of the Circuit Court of the Fourth Judicial Circuit in and for Duval County. The appellant was convicted of murder in the first degree. After receiving the jury’s recommendation of a sentence of life imprisonment, the trial court sentenced appellant to death. This Court has jurisdiction of the appeal. Art. V, § 3(b)(1), Fla. Const. We affirm the judgment and sentence.

During the early morning hours of March 13, 1979, Eleanor Kathy Tolin, while working as cashier at an all-night convenience store, was robbed, abducted, raped, and killed. The appellant Rufus Stevens and his friend Scott Engle were jointly indicted on a charge of first-degree murder. The two defendants were tried separately.

Appellant was arrested at his home at about 3:30 a.m. on March 20, 1979. Later that morning appellant signed a confession admitting participation in the robbery, abduction, and rape, but placing the blame for the murder on Engle. Before trial, appellant moved to suppress his confession on the ground that his state of severe intoxication at the time rendered his statement involuntary. At the hearing on the motion to suppress, appellant testified that during the day and evening preceding his arrest and interrogation, he consumed one and one-half to two cases of beer and some whiskey. An expert testified that such a level of alcohol consumption would have an extremely debilitating effect on a normal person’s cognitive and motor processes. The state presented testimony that at about midnight on the night of his arrest, by which time most of the alcohol consumption appellant testified to would have been completed, appellant was able to converse coherently and drive a car. The arresting officer and the interrogating officer testified that at the time of arrest and during questioning, appellant was intelligible and capable of coherent conversation. In conjunction with his motion to suppress, appellant asked for an opportunity to reproduce the effects of the alcohol ingestion he testified to, in order to demonstrate to the court his mental state at the time of his confession. The court declined to allow such test or demonstration and denied the motion to suppress.

Based on appellant’s confession in which he admitted participation in the robbery and abduction but blamed the actual killing on Engle, the state indicated a willingness to allow appellant to plead guilty in exchange for a recommended sentence of life imprisonment rather than death, or to plead guilty to a lesser, non-capital offense. As a condition precedent to such a plea bargain, the state demanded a polygraph examination for the purpose of determining the extent of appellant’s participation in the criminal episode leading to the murder. Appellant agreed to submit to the polygraph test.

At the place and time scheduled for the examination, only appellant and the police polygraph examiner were present. Before being connected to the machine, appellant spontaneously made some statements concerning his participation in the crime. The immediate result of appellant’s utterances was that the examiner did not proceed with the examination. A further result was that the state discontinued the plea negotiations, since appellant’s statements were inconsistent with his earlier confession.

The defense moved to exclude these statements on the grounds that they were made in connection with plea negotiations and that the state had promised that the polygraph statement would not be used in evidence. The trial court ruled that the statements could not be used by the state in its case in chief but deferred ruling on whether they might be used in rebuttal.

At trial the state presented evidence that Kathy Tolin disappeared from her job during the early morning hours of March 13, 1979. Her body was later discovered in a wooded area nearby. She had been raped, strangled, stabbed, and mutilated. Either the strangulation or the stabbing could have been the cause of death.

The interrogating officer testified to appellant’s confession made soon after his arrest. According to this statement, appellant directly participated in robbing, kidnapping, and raping the victim. He and his accomplice abducted her from the store and took her into some woods. Appellant said, however, that she ran away after being raped, and that Engle ran after her. Fifteen minutes later, according to the confession, Engle returned, dragging the dead body of the victim. Then appellant and Engle placed the body in the trunk of appellant’s car and removed it to another wooded area.

A state witness who was well acquainted with both appellant and Engle testified that he was present when appellant and Engle made a plan to rob the convenience store, and that they left him at his home at about 2:00 a.m. on the night of the murder and departed, with robbery as their stated purpose, in appellant’s car, with appellant driving. After the murder, the witness testified, appellant remarked to him “We got to get rid of Scott’s knife because that’s what it was done with.” Testimony and Proceedings, vol. V, at 573. This witness also testified that he talked with Engle about the murder and that Engle refused to give up his knife, indicating that he did not believe the knife could be linked to the murder. The witness testified:

I asked him why they did it and he said that they took her out of the store to get her away from a phone. They took her out into the country and Rufus went crazy and started saying she’s going to identify us. And I asked him, I said, man, was it worth killing a little gal over a lousy fifty-dollar robbery and he said no, it wasn’t.

Id. at 577-78.

The testimony of the state’s main witnesses was corroborated by several items of physical evidence. Police recovered the knife identified as belonging to Scott Engle and established as having been the murder weapon. A minute amount of blood was found on the knife which could have been the blood of Kathy Tolin but could not have come from Engle or appellant. Blood found in the trunk of appellant’s car was also of the victim’s blood type. Hairs recovered from the back seat and trunk of appellant’s car were probably those of the victim, according to expert testimony.

Appellant argues four points on appeal. He maintains that (1) the court erred in refusing to grant in full his motion to exclude the statements he made to the polygraph examiner; (2) that the court erred in denying his request to conduct an experiment to demonstrate the effects of the level of alcohol intoxication with which he asserts he was afflicted at the time of his arrest and interrogation; (3) that the court erred in refusing to suppress his confession; and (4) that the court erred in sentencing him to death when the jury recommended life imprisonment.

On the first point, appellant argues that the court’s ruling, excluding the statement to the polygraph examiner from evidence on the state’s case in chief, left open the possibility that the statement could have been used for impeachment or rebuttal purposes in the event appellant had testified in his own defense. Indeed it did leave open such a possibility since the court specifically stated in its order of exclusion that in the event of the defendant’s choosing to testify in his own defense, the court would entertain a proffer of the statement for purposes of impeachment. Appellant argues that the statement should have been completely excluded and that the error prejudiced his defense by preventing him from testifying in his own behalf.

Appellant argues that his statement was made in connection with plea negotiations and was therefore inadmissible for any purpose under section 90.410, Florida Statutes (1979) and Florida Rule of Criminal Procedure 3.172(h). The state argues that the trial judge was correct in its ruling. The fact that the statement was excludable from the case in chief, the state argues, should not provide a license for an accused to commit perjury free from the risk of being confronted with prior inconsistent statements, citing Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975) and Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). The state had agreed.that the polygraph results would not be used in evidence; however, the state argues that the statement in question is not part of the result of a polygraph examination.

To determine whether a statement is made in connection with plea negotiations, a court should use

a two-tiered analysis and determine, first, whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion, and, second, whether the accused’s expectation was reasonable given the totality of the objective circumstances.

United States v. Robertson, 582 F.2d 1356, 1366 (5th Cir. 1978) (en banc); see also United States v. O’Brien, 618 F.2d 1234 (7th Cir.), cert. denied, 449 U.S. 858, 101 S.Ct. 157, 66 L.Ed.2d 73 (1980); United States v. Pantohan, 602 F.2d 855 (9th Cir. 1979). Whether a defendant’s subjective expectation of negotiating a plea is reasonable depends on whether the state has indicated a willingness to plea-bargain and has in fact solicited the statement in question from the defendant. Unsolicited, unilateral utterances are not statements made in connection with plea negotiations. See Blake v. State, 332 So.2d 676 (Fla. 4th DCA 1976).

We conclude that the statement in question was not made in connection with plea negotiations. Although the polygraph examination was arranged so that appellant’s version of the criminal episode could be substantiated and although this was agreed to so that the parties could proceed to reach a negotiated plea, appellant’s spontaneous, unilateral statement was not connected to those negotiations in the sense contemplated by the rule of exclusion we are applying. The statement was not made during an actual polygraph examination nor was it made in response to any preliminary questions. Appellant made the statement spontaneously without any prompting or inducement. Appellant had no reasonable subjective belief that his statement was a part of the plea negotiations. Therefore, not only was the trial court correct in holding that the statement was admissible for impeachment, but the court could also have ruled the statement admissible for use in the state’s case in chief.

Next appellant argues that the court should have excluded his confession from evidence. He contends that, although he was advised of his Fifth Amendment rights in the standard fashion, he was led to believe that if he cooperated with police he would obtain leniency. In support of this contention appellant points not to any actual police inducement, but to the fact that the interrogating officer was evasive when appellant asked him whether the case might lead to the death penalty being imposed. In essence appellant contends that without knowing that a sentence of death was a possible penalty, he cannot have knowingly waived his constitutional right to remain silent. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The same kind of argument was raised in United States v. Hall, 396 F.2d 841 (4th Cir.), cert. denied, 393 U.S. 918, 89 S.Ct. 248, 2 L.Ed.2d 205 (1968). The court rejected the argument saying:

It is undisputed that at the time of arrest Agent Dowling did not inform Hall of the punishment he might receive if he were convicted of the robbery with which he was charged. Hall argues that without this knowledge he simply was not in a position to make the knowing and voluntary waiver contemplated by Miranda. Miranda, however, reflects the Supreme Court’s concern that an accused might, to his detriment, forfeit rights afforded him by the Constitution simply because he was not aware that he possessed such rights. We do not find in that decision any intimation that knowledge of the punishment for the crime with which he was charged is a prerequisite to a valid waiver of constitutional rights and we conclude that the validity of Hall’s waiver is not vitiated by the admitted absence of knowledge or information as to the possible punishment.

Id. at 845. We agree. A police interrogator must neither abuse a suspect, nor seek to obtain a statement by coercion or inducement, nor otherwise deprive him of Fifth or Sixth Amendment rights. As a safeguard against such improprieties, the Miranda warnings have been prescribed. But a police interrogator’s job is to gain as much information about the alleged crime as possible without violating constitutional rights, and it is not his duty to apprise a suspect of the possible punishment for the crime under investigation. The ultimate punishment to be meted out upon one convicted of a crime depends on the nature of the formal charges filed, which is often a function of prosecutorial discretion, the outcome of the trial, and the exercise of discretion by the sentencing judge. At the investigatory stage of the criminal justice process, it is quite proper for an investigating officer to decline to speculate on the possible ultimate result. Therefore we hold that the court did not err in denying the motion to suppress the confession.

Appellant’s third point is that the trial court erred in denying appellant’s novel and imaginative request to be allowed to drink two cases of beer in order to demonstrate to the court his state of intoxication when he confessed. He argues that the experiment should have been allowed because the result would have been relevant to the question of whether he was capable of intelligently and voluntarily waiving his constitutional rights.

The admissibility of a test or experiment lies within the discretion of the trial judge. Reid v. State, 68 Fla. 105, 66 So. 725 (1914); Hisler v. State, 52 Fla. 30, 42 So. 692 (1906). A court should admit evidence of scientific tests and experiments only if the reliability of the results are widely recognized and accepted among scientists. Rodriguez v. State, 327 So.2d 903 (Fla. 3d DCA), cert. denied, 336 So.2d 1184 (Fla.1976); Coppolino v. State, 223 So.2d 68 (Fla. 2d DCA 1968), appeal dismissed, 234 So.2d 120 (Fla.1969), cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 794 (1970); 3 S. Card, Jones on Evidence, § 15:9 (6th ed. 1972).

To allow the defendant to present himself to the court for observation after drinking two cases of beer would have had a very predictable result but would not, it seems to us, have risen to the dignity of an accepted scientific test or experiment. Appellant’s motion was supported only by his own testimony that he was so intoxicated that he was not aware of what he was doing. There was other testimony, however, that he was coherent and functioning normally at the time of his arrest. Therefore we conclude that the trial court did not abuse its discretion in denying the motion.

We come now to the propriety of the sentence of death. The trial judge found that the murder was committed in the commission of or flight after committing rape and kidnapping, an aggravating circumstance under section 921.141(5)(d), Florida Statutes (1977); that it was committed for the purpose of avoiding or preventing a lawful arrest, id., § 921.141(5)(e); that it was committed for pecuniary gain, id., § 921.141(5)(f); and that it was especially heinous, atrocious, or cruel. Id., § 921.-141(5)(h). The judge also specifically found that the defense established no mitigating circumstances.

There was sufficient evidence to support the trial judge’s findings that the four aggravating circumstances were proven beyond a reasonable doubt. Evidence presented at the guilt phase of the trial established that the murder was the ultimate result of a closely connected chain of events that included kidnapping and sexual battery. Thus the court was correct to conclude that the aggravating circumstance in section 921.141(5)(d) applied. The finding that the murder was committed for pecuniary gain was supported by evidence that appellant and his accomplice took money from the store’s cash register, the property of the victim’s employer and in her possession until the robbery and abduction. That the murder was committed for the purpose of avoiding arrest for crimes already committed was established by testimony about appellant’s own statement to his accomplice expressing fear of detection and apprehension and insisting on the need to eliminate the victim as a possible identifying witness. See Adams v. State, 412 So.2d 850 (Fla.1982). Finally, the terror and pain the victim must have felt while being abducted, brutally raped, and then strangled and stabbed to death, establishes that the capital felony was especially heinous, atrocious, or cruel. E.g., Jackson v. State, 366 So.2d 752 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979); Knight v. State, 338 So.2d 201 (Fla.1976).

Appellant argues that the trial judge erred in failing to find the existence of mitigating circumstances. He argues that the court should have found that he had no significant history of prior criminal activity. § 921.141(6)(a), Fla.Stat. (1977). The court found, however, that appellant had previously-been convicted of theft, receiving stolen property, and criminal trespass. In addition, during the sentencing hearing, a teenage girl testified that appellant had raped her. Thus there was no reason for the court to find a lack of significant history of prior criminal activity. See Dobbert v. State, 328 So.2d 433 (Fla.1976), aff’d, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).

Appellant argues that the court should have found that due to intoxication and extreme mental or emotional disturbance, his ability to appreciate the criminality of his conduct and to conform to the requirements of the law was substantially impaired. § 921.141(6)(b), (f). There was no evidence to support such findings. A court-appointed psychiatrist reported no ex-, treme mental or emotional disturbance. No testimony supported a finding of impaired capacity. Therefore the court did not err in declining to find these factors. See Meeks v. State, 336 So.2d 1142 (Fla.1976).

Appellant argues that the trial court should have found that his participation in the crime was relatively minor and that he acted under the substantial domination of another person. § 921.141(6)(d), (e). The trial judge specifically found, however, that both appellant and Engle were guilty of the crimes and that neither was under the domination of another. There was testimony at the guilt phase of the trial that appellant initially approached Engle and proposed robbing the store. In addition, the same witness testified that Engle told him after the incident that the murder also was appellant’s idea. Furthermore, the presentence investigation received by the sentencing judge but not provided to the jury supplied further information concerning the crime. In statements made to the court-appointed psychiatrist, appellant conceded that the robbery and kidnapping were originally his idea. He also admitted to mutilating the victim’s vagina. Therefore there was sufficient evidence for the court to refuse to find that appellant’s role was minor or that he was dominated by Engle.

Finally, appellant argues that the trial court erred in overriding the jury’s recommendation of life imprisonment. The sentencing judge must accord great weight to a jury’s recommendation of life imprisonment, but may decline to follow it if the facts indicating that a sentence of death is appropriate under the law are “so clear and convincing that virtually no reasonable person could differ.” Tedder v. State, 322 So.2d 908, 910 (Fla.1975). The record amply supports the judge’s findings of four aggravating circumstances and a total lack of mitigating circumstances. Therefore, death is the appropriate punishment. State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1951, 40 L.Ed.2d 295 (1974). Under the properly established facts and circumstances, it was proper for the judge to override the jury’s recommendation. The recommendation of life was not based on any valid mitigating factor discernible from the record. See Hoy v. State, 353 So.2d 826 (Fla.), cert. denied, 439 U.S. 920, 99 S.Ct. 293, 58 L.Ed.2d 265 (1978); Douglas v. State, 328 So.2d 18 (Fla.), cert. denied, 429 U.S. 871, 97 S.Ct. 185, 50 L.Ed.2d 151 (1976).

The judgment of conviction of first-degree murder is affirmed. The sentence of death is affirmed.

It is so ordered.

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

McDONALD, J., concurs in part and dissents in part with an opinion, with which OVERTON, J., concurs.

McDONALD, Justice,

concurring in part/dissenting in part.

I concur with the affirmance of conviction but dissent on the imposition of the death penalty. The jury recommended that the sentence be life imprisonment. The jury could have concluded that Stevens participated in the robbery and rape, but that Engle was the sole perpetrator of the homicide. There was, therefore, a rational basis for the jury’s recommendation and it should have been followed by the trial judge.

OVERTON, J., concurs.

      . 90.410 Offer to plead guilty; nolo conten-dere; withdrawn pleas of guilty. — Evidence of a plea of guilty, later withdrawn; a plea of nolo contendere; or an offer to plead guilty or nolo contendere to the crime charged or any other crime is inadmissible in any civil or criminal proceeding. Evidence of statements made in connection with any of the pleas or offers is inadmissible, except when such statements are offered in a prosecution under chapter 837.

      . (h) Except as otherwise provided in this Rule, evidence of an offer or a plea of guilty or nolo contendere, later withdrawn, or of statements made in connection therewith, is not admissible in any civil or criminal proceeding against the person who made the plea or offer.

      . Section 921.141(5)(d) reads: “The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, rape, arson, burglary, kidnapping, or aircraft piracy or the unlawful throwing, placing, or discharging of a destructive device or bomb.”


text:
    Philip Gene GRABARNICK, et al., Petitioners, v. FLORIDA HOMEOWNERS ASSOCIATION OF NORTH BROWARD, INC., et al., Respondents.
    No. 60564.
    Supreme Court of Florida.
    Sept. 14, 1982.

      No appearance for petitioners.
    Fred C. Bamman, III, Pompano Beach, for respondents.
   ADKINS, Justice.

The Fourth District Court of Appeal (Grabarnick v. Florida Homeowners Ass’n, 395 So.2d 1184 (Fla. 4th DCA 1981)), has certified a question to this Court as of great public importance. Jurisdiction is pursuant to article Y, section 3(b)(4), Florida Constitution.

The facts giving rise to the certified question are as follows: The judgment in the instant case was entered by the court on May 30, 1980 and was filed in the clerk’s office on that date. The final judgment was mailed by the clerk to parties on Monday, June 2, 1980. Petitioners served their motion for rehearing on June 10, 1980, 11 days after the court entered its judgment and the judgment was filed with the clerk. There is no indication in the Court file as to when the judgment was recorded by the clerk.

The question as phrased by the petitioners and certified by the district court is:

Must Fla.R.Civ.P. 1.080(h), 1.090(e) and 1.530(b) be read together so as to provide that a motion for rehearing of a final judgment of a circuit court which is served 11 days after rendition and six days after receipt of the final judgment, is timely served so as to toll the time period for the filing of a notice of appeal of the final judgment?

After a careful examination of these rules, we answer the certified question in the negative. Rule 1.090(e) does not deal with the same subject matter as do the other two rules. Rule 1.090(e) concerns the right or requirement “to do some act or [to] take some proceeding within a prescribed period after the service of a notice or other paper ... and the notice or paper is served ... by mail....” (Emphasis added.) The time for filing a petition for rehearing under rule 1.530 begins to run from the date the judgment is entered and not the date a party has been served with a pleading or other paper, as provided by rule 1.090(e).

Petitioners argue that because a final judgment is served upon the parties by mail, and because a corresponding motion for rehearing is also served by mail, that the party serving the motion for rehearing has an additional three days in which to do so pursuant to rule 1.090(e). We do not read the rule to extend by three days the time within which to serve a motion for rehearing. (By subsequent rule it is now five days).

We turn now to the issue of the meaning of the term “entry of judgment” in Fla.R.Civ.P. 1.530(b). In July of 1981 this Court decided the case of Casto v. Casto, 404 So.2d 1046, 1048 (Fla.1981). We stated in Casto that “... ‘entry of judgment’ under Florida Rule of Civil Procedure 1.530(b) means the recording of the judgment — the spreading of the judgment upon the court’s official records.” (Citations omitted.) Prior to this decision there was some legitimate question about whether the term “entry of judgment” as used in rule 1.530(b) referred to the date the judgment was (1) entered by the court; (2) filed with the clerk of the court; or (3) recorded by the clerk of the court. Casto makes clear that the date of recording is the date from which the time to move for a rehearing should begin to run. Casto was decided after the district court’s decision in Grabar-nick.

We quash the decision of the district court dismissing the appeal as untimely and remand the cause for further consideration in accordance with the views expressed in Casto and this opinion.

It is so ordered.

BOYD, OVERTON and SUNDBERG, JJ, concur.

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

McDONALD, Justice,

dissenting.

I dissent. We made a mistake in Casto v. Casto, 404 So.2d 1046 (Fla.1981), and this case gives us a vehicle to correct that error. The time for filing a petition for rehearing should commence to run when the judgment sought to be reheard is filed with the clerk of the court. The Third District Court of Appeal correctly dealt with this issue in Dibble v. Dibble, 377 So.2d 1001 (Fla.3d DCA 1979). We should adopt that opinion and dispose of this case accordingly.

ALDERMAN, C. J., concurs.