author: BROOM, Justice,

text:
    Sammy CARTER, et al. v. Mrs. Curtis LUKE, et al.
    No. 52758.
    Supreme Court of Mississippi.
    June 3, 1981.
    Rehearing Denied July 8, 1981.
    Laurel G. Weir, Thomas L. Booker, Philadelphia, for appellants.
    James C. Mayo, Fair & Mayo, Deramus, Lewis & Tucker, Louisville, for appellees.
    Before SMITH, WALKER and BROOM, JJ.
   BROOM, Justice,

for the court:

Election of school board trustees of the countywide Louisville Municipal Separate School District is highlighted by this case appealed for the second time from the Chancery Court of Winston County. There the petitioners Mrs. Bobbie Lovom, Joe Goodin, J. D. Eaves, Prentiss Carter, and Sammy Carter (appellants herein) petitioned the court to order a trustees election and for other relief. Lovorn v. Hathorn, 365 So.2d 947 (Miss.1979) held unconstitutional the phrase in Mississippi Code Annotated § 37-7-203 (Supp.1980) “in which Highways 14 and 15 intersect” and remanded the case for election of one school board trustee from each supervisor’s district. The United States Supreme Court denied petitioner’s writ of certiorari. See Lovorn v. Hathorn, supra, cert. denied, 441 U.S. 946, 99 S.Ct. 2167, 60 L.Ed.2d 1049 (1979). The lower court decreed that Mississippi Code Annotated § 37-7-217 (Supp.1980) required a run-off election if none of the trustee-candidates from a particular supervisor’s district received a majority vote. In addition, the lower court ordered that the election procedure was subject to the Voting Rights Act of 1965.

Since 1960, the school district has included all of Winston County. The board of trustees was composed of five members: three appointed by the governing authorities of the City of Louisville and two elected by qualified electors outside the city. Appellants sued the city’s mayor and others to enforce the election of one trustee from each of the county’s five supervisor districts. Although the chancellor dismissed appellant’s initial complaint, we reversed and remanded the case to the chancellor for further proceedings in Lovorn, supra.

Complainants filed their petition to enforce the mandate of this Court on June 18, 1979, and Chancellor Love heard and sustained the petition on July 3, 1979. This cause was first filed in the United States District Court for the Northern District of Mississippi which kept the case on its docket but allowed it to be litigated in the state court. After this Court reversed and remanded the cause, the District Court, on defendant’s motion, dismissed the complaint.

A detailed decree of the chancellor dated July 24, 1979, outlined the election procedure. One trustee was to be elected from each supervisor’s district, and their terms were to expire in different years as per Mississippi Code Annotated § 37-7-209 (1972). According to the decree, if no trustee-candidate received a majority, there would be a run-off election between the two candidates receiving the highest number of votes. The chancellor ordered that the election procedures as decreed be submitted either to the United States Attorney General or the United States District Court for the District of Columbia in accordance with 42 U.S.C. § 1973c. After additional data was forwarded to the United States Department of Justice, the Civil Rights Division of the United States Attorney General’s office advised the appellees in a letter dated March 28,1980, that it objected to the majority vote run-off requirement. The office advised them that they had the right to seek a declaratory judgment from the United States District Court for the District of Columbia.

After additional hearings, the chancellor overruled appellants’ motion to require the United States Attorney General to be made a party; no authority was cited to support the motion. The lower court decreed: (1) Mississippi Code Annotated § 37-7 — 217 (Supp.1980) requires a majority vote or “run-off” election, (2) the United States Attorney General would not be made a party defendant, (3) the court would not affirmatively order the attorney general to approve the election procedure, and (4) the decree calling the election would remain in force subject to compliance with the 1965 Voting Rights Act.

Appellants raise only one assignment of error:

The chancellor erred in not obeying the mandate of the Mississippi Supreme Court and mandate of the United States Supreme Court and provide for an election as mandated.

When we entered our prior opinion and mandate in this cause, judgment was rendered here for the appellants. The cause was remanded for “further proceedings” pursuant to our opinion, and in that posture the lower court was required to call an election pursuant to § 37-7-203, supra, which code section was before us on the appeal here and was also before the United States Supreme Court which denied certio-rari. 441 U.S. 946, 99 S.Ct. 2167, 60 L.Ed.2d 1049, supra. After the United States Supreme Court denied certiorari the chancellor by decree dated July 24, 1979, ordered an election but required that the matter be submitted to the Attorney General of the United States for approval “in compliance with 42 U.S.C. sec. 1973c.” Subsequently the lower court postponed the election and then by decree dated September 30, 1980, among other things, decreed that certain other matters which had been raised were

dismissed with the prior Order of this Court calling the election to remain in force subject to compliance with the Federal Voters Rights Act as previously ordered by this Court.

Our prior decision, which the United States Supreme Court declined to reverse or alter in any respect, became and is the law of the case. The very code section, Mississippi Code Annotated § 37-7-203 (Supp. 1980), central to our prior opinion, provides that the election shall be “in the same manner as is provided for the election of trustees of school districts other than municipal separate school districts having territory in two or more counties.” The language just quoted refers to Mississippi Code Annotated § 37-7-217 (Supp.1980), which provides that a majority vote shall be required in such an election. On oral argument, both parties agreed to abide by the statutory scheme requiring a run-off election. We think the lower court acted properly and within the applicable statutes and law in entering the final decree appealed from except that part in numerical paragraph 4 thereof which made the election, which he had called, “subject to compliance with the Federal Voters Rights Act as previously ordered by this Court.” Accordingly, the decree of the lower court appealed from is reversed as to that part of the decree requiring “compliance with the Federal Voters Rights Act....” In all other respects the decree is affirmed, and the cause is remanded with directions for the lower court to call and require the holding of an election pursuant to § 37-7-203, supra, and not inconsistent with this opinion.

REVERSED AS TO REQUIREMENT IMPOSED BY THE CHANCELLOR THAT THE MATTER AGAIN BE SUBMITTED TO THE UNITED STATES ATTORNEY GENERAL OR A FEDERAL DISTRICT COURT; AFFIRMED IN ALL OTHER RESPECTS.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE, BOWLING and HAWKINS, JJ., concur.


source: Caselaw Access Project

author: PATTERSON, Chief Justice,

license: Public Domain

text:
    W. Gus BEANE v. Chalmas E. BOWDEN, III.
    No. 52586.
    Supreme Court of Mississippi.
    June 3, 1981.
    Rehearing Denied July 8, 1981.

      Howard Q. Davis, Jr., Clark, Davis & Belk, Indianola, for appellant.
    Charles C. Jacobs, Jr., Jacobs, Griffith, Pearson, Eddins & Povall, Cleveland, for appellee.
   PATTERSON, Chief Justice,

for the Court:

W. Gus Beane, d/b/a Beane Cotton Company, brought suit in the Circuit Court of Sunflower County; and thereafter the cause was transferred to the Circuit Court of the Second Judicial District of Bolivar County. Beane sought judgment on a debt of $28,748.60 together with interest at the rate of 6 percent per annum from July 24, 1970, and all costs. This debt arose from a joint venture entered into between Gus Beane — Appellant, and Chaimas E. “Pete” Bowden, Jr., now deceased and father of Appellee, Chaimas E. “Skip” Bowden, III. Beane alleged Skip Bowden and his late father were doing business as a partnership at the time the joint venture was entered into between Beane Cotton Co. and Bowden Cotton Co. Hence Beane seeks to hold Skip Bowden liable on half the debt incurred by the joint venture between the two cotton companies. Skip Bowden denied the existence of a partnership at the time the joint venture was agreed upon and thus asserts non-liability for the debt incurred by his father and Beane.

The case was tried to the court and taken under advisement on January 4, 1978. Judge Feduccia died on October 27, 1978, prior to deciding the case. More than six months having passed with no adjudication, Beane appealed to this Court pursuant to the provisions of MCA § 11-1-17 (1972). Although over a year elapsed between the death of the trial judge and the bringing of this appeal, we consider the case on its merits, albeit with reservations, because ap-pellee did not challenge the jurisdiction of this Court to conclude the case.

We do now what the trial court should have done within a reasonable time following submission of the case and the filing of briefs. See Beall v. Beall, 310 So.2d 706 (Miss.1975). The status of Beane is that of an appellant, and he assigns four errors for the court’s determination.

I. Appellee Chaimas E. (Skip) Bowden, III was, in fact, a partner in the firm known as Bowden Cotton Company, but if not, he held himself out as a partner to the public in such manner that he should now be estopped to deny that he was a partner.

II. Even were Chaimas E. (Skip) Bow-den, III not a partner in Bowden Cotton Company, his actions following the death of his father were sufficient to cause him to be indebted to W. Gus Beane, Appellant.

III. The action is not barred by Section 729 of the Mississippi Code of 1942 (now Section 15-1-29 of the Mississippi Code of 1972).

IV. The action is not barred by Section 264 of the Mississippi Code of 1942 (now Section 15-3-1 of the Mississippi Code of 1972) as being a verbal agreement intended to be carried out over a period of time in excess of fifteen months.

Beane and Pete Bowden, appellee’s father, entered into a joint venture agreement, speculative in nature, whereby Beane, a cotton merchant, would purchase cotton and Pete Bowden, d/b/a Bowden Cotton Co., would class and ship the cotton. This oral agreement of 1966 had no definite date for its termination. It was Beane’s understanding that the joint venture was between the two cotton merchant companies, Bowden Cotton Co. and Beane Cotton Co. Pete Bowden died in April 1968, at which time the joint venture was $5000 in debt.

Appellant contends Skip Bowden was, in fact, a partner in the firm known as Bowden Cotton Co.; and if he was not a partner, he has held himself out as a partner to the general public in such a manner that he should be estopped to deny it. We do not reach the estoppel issue; for it is our opinion the evidence, both oral and written, heavily preponderates to the conclusion that Skip Bowden was, in fact, a partner in Bowden Cotton Company and thus is liable for half the debts of the joint venture between Beane Cotton Company and Bowden Cotton Company.

A partnership is defined in MCA § 79-12-11 (Supp.1980) as “an association of two (2) or more persons to carry on as copart-ners a business for profit.” Although Skip Bowden denies he was a partner but was only employed as a cotton classifier, the documentary evidence positively shows that Bowden received profits from the Bowden Cotton Company in 1966 and 1967, prior to Pete Bowden’s death. On Skip Bowden’s 1966 and 1967 federal income tax returns, his occupation is listed as a cotton merchant with no salary reported as income. His income is listed as that of a partnership, specifically: “C. E. Bowden, Jr. & C. E. Bowden, III, Joint Venture, d/b/a Bowden Cotton Co.” This constitutes prima facie evidence that he was a partner in the business, for MCA § 79-12-13(4) (Supp.1980) provides that “receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business, ... . ”

We are also of the opinion that the fact Pete Bowden acted on his own when entering into the joint venture agreement with appellant would not make Skip Bowden any less liable because this Court has long recognized the principle that one partner, acting alone, can bind the other partner, if it is within the scope of the partnership. Picone v. Commercial Paste Co., 215 Miss. 114, 60 So.2d 590 (1952); Baker v. Connecticut General Life Ins. Co., et al., 196 Miss. 701, 18 So.2d 438 (1944).

It is not necessary to consider the second assignment of error because of our determination from the record that Skip Bowden was a partner in Bowden Cotton Co.

Turning to appellant’s third assignment of error that the action is not barred by MCA § 729 (1942), presently MCA § 15-1-29 (Supp.1980), this statute provides:

§ 15-1-29. Limitations applicable to actions on accounts and unwritten contracts.
Except as otherwise provided in the Uniform Commercial Code, actions on an open account or account stated not acknowledged in writing, signed by the debtor, and on any unwritten contract, express or implied, shall be commenced within three (3) years next after the cause of such action accrued, and not after, except that an action based on an unwritten contract of employment shall be commenced within one (1) year next after the cause of such action accrued, and not after.

We think the oral agreement is not void under the three year statute of limitations. This was a mutual, open account between cotton merchants, and the statute of limitations did not begin running until the “true date of the last item proved in the account.” MCA § 15-1-31 (1972). Based on the declaration and proof, the last transaction was on July 24, 1970. Although the exact date of the filing of the declaration is not ascertainable from the record, a subsequent motion to transfer by appellee was dated December 12, 1972. We are of the opinion this would place the filing of Beane’s declaration well within the three year statute of limitations.

Appellant also assigns as error that the action is not barred by MCA § 264 (1942), presently MCA § 15-3-1 (1972), as being a verbal agreement intended to be carried out over a period of time in excess of fifteen months. We are of the opinion that appellant’s contention is correct for “the possibility of performance within fifteen months takes the contract out of the operation of the statute.” Morgan v. Jackson Ready-Mix Concrete, 247 Miss. 863, 157 So.2d 772 (1963); See also Jones v. McGahey, 187 So.2d 579 (Miss.1966).

Here, the oral contract was of an indefinite duration and susceptible of per.formance within 15 months, thus removing it from the statute of frauds. In addition, the statute of frauds does not apply where a contract has been performed by both parties. The present joint venture agreement was substantially performed. E. g., Landry v. Moody Grishman Agency, Inc., 254 Miss. 363, 181 So.2d 134 (1965).

We reverse and render judgment for appellant in the amount of $28,748.60, together with interest at the rate of 6 percent per annum from July 24, 1970, until paid, and all costs.

REVERSED AND RENDERED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


text:
    Mrs. Virginia F. ANDREWS, et al. v. CITY OF CLARKSDALE, Miss.
    No. 52861.
    Supreme Court of Mississippi.
    June 10, 1981.
    Rehearing Denied July 8, 1981.
    William R. Bradley, Maynard, FitzGerald & Bradley, Joseph C. Webster, Webster & Webster, Thomas H. Pearson, Clarksdale, for appellants.
    Robert F. Wood, Wood & Twiford, Clarksdale, for appellee.
   Appeal from Chancery Court, Coahoma County; Harvey T. Ross, Chancellor.

Before SMITH, P. J., and WALKER and BROOM, JJ.

AFFIRMED.


author: PER CURIAM. OVERTON, Justice,

text:
    Earl ENMUND, Appellant, v. STATE of Florida, Appellee.
    No. 48525.
    Supreme Court of Florida.
    April 16, 1981.
    Rehearing Denied July 20, 1981.

      Jack 0. Johnson, Public Defender; Steven H. Denman, W. C. McLain, and David A. Davis, Asst. Public Defenders, Bartow, for appellant.
    Jim Smith, Atty. Gen., Donald K. Rudser and Charles A. Stampelos, Asst. Attys. Gen., Tallahassee, for appellee.
   PER CURIAM.

This cause is before the Court on appeal from a judgment of conviction on two counts of murder in the first degree and one count of robbery. The Circuit Court of the Tenth Judicial Circuit, in and for Har-dee County, sentenced appellant Earl En-mund to death, thus vesting in this Court jurisdiction of his appeal. Art. V, § 3(b)(1), Fla.Cbnst.

The appellant and co-defendant Sampson Armstrong were tried together and convicted of the first-degree murders and robbery of Thomas and Eunice Kersey. After returning verdicts of guilt the trial jury heard evidence on the issue of sentence pursuant to section 921.141, Florida Statutes (1975), and recommended the death penalty for both defendants. The trial court imposed sentences of death on the appellant for the two counts of first-degree murder and a sentence of life imprisonment for the crime of robbery. We affirm the judgments of guilt of murder and robbery and the sentences of death.

I. Facts

On April 1,1975, at about eight o’clock, a. m., the bodies of Thomas and Eunice Ker-sey were discovered by their daughter in their rural Hardee County home, located on state highway 62 between Fort Green to the west and Wauchula to the east. Mr. and Mrs. Kersey, aged eighty-six and seventy-four respectively, had been shot to death.

Some of the evidence constituting the state’s case in the trial court consisted of physical items recovered at the scene and examined in the course of investigation. The bodies were found on the kitchen floor, near the back door of the home. There was a quantity of blood on' the floor, some five feet away from where the bodies were lying, that prompted the authorities to investigate the possibility that one of the perpetrators was wounded during the attack. Later that morning, police found Jeanette Armstrong, the wife of co-defendant Sampson Armstrong, being treated for a gunshot wound in a hospital in nearby Avon Park, in Highlands County. The blood recovered at the scene proved to be of a different type from either of the Kerseys’ blood, and to match the blood type of Jeanette Armstrong.

On the ground outside the house, investigators found a plastic jug filled with water.

There were four firearm projectiles found at the scene. One was on the ground outside the house, one in the door jamb of the back door, one in the water heater in the kitchen of the house, and one on the floor, under the body of Mrs. Kersey. Mrs. Ker-sey was shot six times in all, with three of the wounds being superficial so that three of the bullets exited the body. Three bullets remained in her body and were recovered. The three bullets found in the body all entered the body in the right side and passed downward.

Mr. Kersey was shot twice. One bullet entered his right arm and passed on through his heart to the left side of his body. The other entered his chest from directly in front. Both bullets were recovered. The bullet that entered from the right side had a slight downward angle. The one that entered the front of the chest was almost straight in its path from front to back. According to expert firearms identification testimony, one of the bullets recovered was a .38 caliber and the other was a .22 caliber. The .38 caliber bullet from the body of Mr. Kersey, a .38 caliber bullet from the body of Mrs. Kersey, and the .38 caliber bullet found in the kitchen door jamb, where all fired from the same weapon. The .22 caliber bullet found in the body of Mr. Kersey and a .22 caliber bullet from Mrs. Kersey were both fired from the same gun.

The pathologist who testified at trial told the court and the jury that when a bullet enters the body, it can be deflected in numerous ways, so that it is difficult to discern the angle of fire from the path of the bullet. With regard to the specific question of reconstructing the position of Mrs. Ker-sey when she was shot, based on the paths of the bullets, the pathologist testified, “Well, there are all sorts of possibilities .... There is really no way that I could determine what position her body was in when she was shot... . [S]he was shot from below, above, and behind.” None of the entrance wounds on either of the bodies were inflicted from a range of closer than several feet away.

The state presented the testimony of a witness who drove by the Kersey home between 7:30 and 7:40 a. m. on the day the bodies were found. When she passed the Kersey home, she saw on the side of the road a large, cream-colored car with a license tag bearing the prefix number 18. There was a black man in the car. Another witness for the state drove by the house at 7:35 that morning and saw a car parked beside the road about two hundred yards west of the house. It was a large, yellow car with a dark colored top. There was one person in the car.

The state’s evidence also included the testimony of two of the Kerseys’ neighbors. One testified that on April 1st he was at work on his own land only two or three hundred yards from the Kerseys’ house when, at about 7:45 a. m., he heard from six to fifteen shots of gun fire and some high-pitched screaming. The other neighbor said that he lived only two hundred yards west of the Kerseys, and that between 7:30 and 8:00 o’clock that morning he heard about seven loud sounds. He would have thought that they were caused by Mr. Kersey hammering to separate some scrap metal, except for their irregular sequence. From the sounds he remembered, he concluded that they also could have been gunfire.

A neighbor of the appellant also testified for the state. He said he lived about three-fourths of a mile from Enmund’s home, and that they both lived on a road that runs off of New York Avenue south of the town of Wauchula. This witness testified that on the morning of April 1st, at about 6:30 he was standing out beside the road, New York Avenue, that goes into Wauchula to the north. He was waiting for a ride that was to take him to another town on personal business. The person who was to meet him there did not come that morning, but he was still standing there waiting for him after 8:00 o’clock. The witness said that at approximately 6:30 or 6:45, he saw Earl Enmund and his former common-law wife Ida Jean Shaw in their yellow Buick with a vinyl top. Ida Jean Shaw was driving. There were two others in the back seat, one male and one female. The car traveled north toward town (the town of Wauchula). At about 8:00 o’clock, the car came back, travelling “pretty fast” in a southerly direction on New York Avenue, with the appellant driving, Ida Jean Shaw in the front seat, and one of the other two people in the car lying down across the back seat.

The husband of the Kerseys’ granddaughter testified that Mr. Kersey usually kept large amounts of cash on his person. He generally kept the cash in the form of one-hundred-dollar bills. It was not unusual for him to have from ten to twenty of these on his person at any given time. He kept the money in his wallet, and the wallet was in his hip pocket at all times. He normally slept in his regular work clothing and kept the wallet in his pocket even as he slept.

Mr. Kersey, the witness testified, liked to show his cash to people he dealt with, and he did so frequently and indiscriminately. He tended to save his money rather than to spend it, and he was proudly vocal about having it. He was a large, strong man who felt that he could protect his wallet.

Another witness testified that two weeks prior to the murders, he saw that Mr. Ker-sey had from twelve to fifteen hundred dollars on his person.

A few weeks prior to the murders, the appellant and a friend jointly purchased a calf from Mr. Kersey. They paid him in cash and when Mr. Kersey took out his wallet to put away the money he showed them its contents. Appellant Enmund said, “Look at the money this man’s got.” Mr. Kersey responded, “That ain’t no money. I can dig up $15,000, $16,000 any time I want to.” Appellant’s friend told Mr. Kersey that he shouldn’t be showing his money around like that. Mr. Kersey said, “I know you, Jim.” The other man responded, “Yeah, you know me but you don’t know the rest of them.” After the killings, Mr. Kersey’s wallet was not found on his person or anywhere in the house.

J. B. Neal testified that at about noon on April 1,1975, he saw co-defendant Sampson Armstrong in Lake Placid, in Highlands County. Armstrong told Neal that he and his wife Jeanette had done a robbery that morning at a ranch house outside of Wau-chula and that Jeanette had been shot. Armstrong told the witness that they had gone to the back door of the house of an elderly man and woman, saying that they needed water for an overheated car. When Mr. Kersey came out of the house, Armstrong grabbed him, held his gun on him, and told Jeanette to get the money out of his pocket. Then, the old man cried out to his wife, and through a window Armstrong saw Mrs. Kersey coming out the front door and around the house with a gun. Mrs. Kersey shot Jeanette Armstrong. Then Armstrong knocked the old man down and shot Mrs. Kersey. Mr. Kersey got back up and Armstrong shot him in the chest. After the shooting, they put the old people in the house, took the money and left.

Jeanette Armstrong is the daughter of Ida Jean Shaw. In April of 1975, Ida Jean Shaw and Earl Enmund were living together as husband and wife, and had been doing so for about twelve years.

There was testimony that the investigating authorities, based on witnesses’ descriptions of the car seen near the Kersey home the morning of the murders, began to search for a large, yellow or cream-colored car with a dark top and having an “18” license tag prefix. They found a car meeting this general description in the possession of Ida Jean Shaw.

At Walker Memorial Hospital in Avon Park on the morning of the murders, police questioned Ida Jean Shaw concerning Jeanette Armstrong’s gunshot wound. She told them that she and Jeanette had been travelling that morning from Wauchula to Avon Park when Jeanette entered an orange grove to urinate and was shot. In the subsequent course of the investigation of the Kersey murders, Ida Jean Shaw gave a statement to the state attorney implicating the appellant and Sampson Armstrong in the crimes. Subsequent to that initial statement, she gave two statements, one of them a formal deposition, in which she repudiated the original statement. In these statements she said that Jeanette Armstrong left her house on March 31, 1975 with two men referred to as Luke and Willie. According to this story, Jeanette said that they were going to Fort Myers to a nightclub. On the following morning, Luke and Willie brought Jeanette home wounded. Jeanette, Luke and Willie then told Ms. Shaw to tell anyone who asked that Jeanette had been shot while trespassing in a citrus grove. The import of the story told in the depositions was to implicate “Luke and Willie” in the Kersey murders and to exculpate the defendants. In one of her depositions, Ida Jean Shaw stated that her earlier statement implicating the defendants in the crimes was false and was fabricated by agreement with Jeanette Armstrong and calculated to put Earl and Sampson in jail and thus be free of the strictures of married life.

Ida Jean Shaw, over the objections of the defendants, was called to testify at trial as a court’s witness. The court examined her and then the state and counsel for each of the defendants cross-examined her.

Ms. Shaw testified at trial as follows. At and around the time of the crimes, she and the appellant lived together in a house on Revell Road in Wauchula, and that they had held themselves out to friends and neighbors and in business transactions as husband and wife for twelve years. Her daughter Jeanette was married to Sampson Armstrong and lived in Lake Placid. On the weekend preceding Tuesday, April 1st, Ms. Shaw celebrated a birthday. On Friday night, Jeanette came to her home. On Sunday, she and Jeanette went to Lake Placid and. brought Sampson back. On Monday night, March 31, Jeanette, Sampson, and the appellant Enmund were all there at the house in Wauchula. On Tuesday, April 1st, when she awoke at about 7:45 a. m., none of the three was there. Neither was her brown and yellow 1969 Buick.

Ms. Shaw got up and went to the neighborhood wash house. About ten minutes later, either Enmund or Sampson Armstrong came into the wash house and told her that Jeanette had been shot. Ida Jean Shaw went back to the house. Jeanette was in the appellant’s red Plymouth automobile. Sampson was with her and the appellant was in the house. Ms. Shaw then took Jeanette up to the local store corner and called an ambulance. Then appellant Enmund came to the corner where they were awaiting the ambulance and asked her what had happened to Jeanette. Ida Jean Shaw told Enmund that Jeanette had been shot in an orange grove. Then the ambulance came and Ida Jean accompanied Jeanette on the ride to the hospital. Ida Jean learned from Jeanette how she was shot. Earl followed in a separate car. Sampson Armstrong also went to the hospital that day.

After spending Tuesday morning at the hospital, Ms. Shaw left there with Earl and Sampson. They went to Wauchula to get the children and then went on to Lake Placid. On the way to Wauchula, Ida Jean Shaw asked the appellant “why he did it.” He replied that he had seen Mr. Kersey’s money and therefore decided to rob him. Sampson Armstrong said that he made sure the people were dead.

Ida Jean Shaw testified further that on Wednesday, April 2, 1975, she, Earl, Sampson, and some of her children were in a car on their way home from the hospital when Sampson gave her $200. By passing written notes in the car, she asked him how much money he got out of the robbery and he responded that he had $600 left. She took the $200 and made a loan payment on an account of Earl Enmund’s that was in arrears. There was corroborating testimony of this, and that the bill was paid with two one-hundred-dollar bills.

Ms. Shaw testified that prior to the events of April 1st, she kept a .22 caliber pistol in the glove compartment of her car. On April 2, she removed the gun from the loft at her house on Earl Enmund’s directions. He and Sampson told her to get rid of the gun and also a .38 caliber pistol that was at the house, because, Sampson said, they had been used to kill some people. She put the guns in the bottom of a bucket of greens and gave the bucket to a friend, Jeanette’s paternal uncle. This person testified that the bucket was a large and heavy metal one and that the greens spoiled in the trunk of his car. He said he threw them away, bucket and all, and didn’t know about the guns. The murder weapons were never recovered.

At trial Ms. Shaw testified that the story about Luke and Willie was a complete fabrication, and that she made up the story and related it at the request of the defendants. Earl Enmund, she said, instructed her on this matter in letters smuggled out of the jail.

The state’s counsel moved that Ida Jean Shaw be called as a court’s witness on the ground that due to the inconsistencies in her pretrial statements, the state was not certain how she would testify and would not vouch for her credibility. Through her examination by the court, cross-examination by the state, and cross-examination by counsel for each of the defendants, the following matters pertaining to her credibility were brought out for consideration by the jury. Ms. Shaw was granted immunity from prosecution for any role she might have played in the murders and robbery. As related above, she gave several inconsistent statements during the investigation and prosecution of the crimes. One of her statements was in a deposition under oath, and at trial she conceded that she had lied in that statement. Prior to the trial, she was charged with perjury. She was arrested and held in jail for thirteen days. The prosecutors advised her of the maximum penalty for the crime of which she stood accused. Then they promised her that she would not be prosecuted for perjury if she would testify at the murder and robbery trial and tell the truth.

II. Issues on Appeal of the Judgment of Conviction

The appellant raises several points which he contends require the reversal of his convictions.

The appellant contends that the trial court erred in refusing to grant judgment of acquittal of the charge of robbery on the ground that there was insufficient evidence to support the verdict of guilt of that crime. We have carefully reviewed the record of the proceedings below and conclude that the judgment of conviction of the crime of robbery rests upon legally sufficient evidence.

The appellant argues that the trial court erred in denying his motion to exclude the testimony of Ida Jean Shaw. He asserts that her inconsistent pretrial statements, which resulted in a charge of perjury, rendered her so unreliable as to be an incompetent witness. He also contends that the pendency of her perjury prosecution, which she was promised would be discontinued if she would testify truthfully, created an unacceptably high risk that her testimony would be the product of coercion.

With regard to the unreliability argument, the trial court informed the jury that Ms. Shaw was being called as a court’s witness because the state could not vouch for her credibility. The jury was instructed to consider her testimony and to accord it whatever credibility they thought it deserved. It is within the discretion of the trial judge to call an uncooperative witness as a court’s witness to allow the state to ask leading questions. McCloud v. State, 335 So.2d 257 (Fla.1976).

With regard to the issue of coercion, the appellant cites Davis v. State, 334 So.2d 823 (Fla. 1st DCA 1976), cert. denied, 345 So.2d 427 (Fla.1977), and Lee v. State, 324 So.2d 694 (Fla. 1st DCA 1976). The Lee case quoted this Court’s statement in Mathews v. State, 44 So.2d 664 (Fla.1950), that

in interviews with witnesses before trial, the examiner “must exercise the utmost care and caution to extract and not to inject information, and by all means to resist the temptation to influence or bias the testimony of the witnesses.”

Lee v. State, 324 So.2d at 698.

In Davis, the prosecuting attorney asked the trial court to delay the swearing of the jury because one of the witnesses he intended to call had become uncooperative. The witness, a close friend of the defendant, had made a statement in a deposition which linked the defendant to the crime but immediately before trial gave a different account of what she knew. The prosecutor conferred with her and told her that she had three choices: refuse to testify and be held in contempt of court and jailed; give an account that differed from her deposition statement and be charged with perjury and possibly imprisoned for fifteen years; or testify to “the truth” in which event nothing would happen to her. The circumstances of the prosecutor’s conference with the witness were revealed to the jury. On appeal, the district court reversed and remanded for a new trial, citing as authority Lee v. State. Applying the Lee principle to the facts before it, the court in Davis concluded:

While it is true that the assistant state attorneys admonished the witness to tell the truth, it must have been obvious to the witness that the “truth” was that which she had testified to at an earlier deposition. Rules of evidence and procedure exist which are designed to assist prosecution and defense alike in eliciting the truth from balky witnesses. Coercion and threats are not among these rules.

Davis v. State, 334 So.2d at 826.

The appellant contends that when the prosecution told Ida Jean Shaw that she could be released from jail and have the perjury charges dropped if she would tell “the truth,” there is an unacceptably high probability that she understood that the “truth” the prosecution wanted was testimony linking the appellant to the crimes. We disagree. In Lee v. State, the error was not in allowing the witness to testify but in keeping from the jury information regarding the arrangement by which the state gained the cooperation of the witness. In Davis, the prosecutor indicated to the witness that she should testify consistently with what she said before. Thus he “injected” information. In the case sub judiee, the prosecution did not suggest to Ms. Shaw what they wanted her to say, but simply advised her to tell the truth. We hold that the court did not abuse its discretion in allowing into evidence the testimony of Ida Jean Shaw.

The appellant contends that a new trial is required because the jury was not fully informed of the understanding between the state and Ida Jean Shaw. It is true, as appellant points out, that it is a denial of due process if the jury is misled as to facts bearing on the credibility of a witness. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). If a failure to fully inform the jury of the interest of a witness could in any reasonable likelihood have affected the decision of the jury, a new trial is required. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Wolfe v. State, 190 So.2d 394 (Fla. 1st DCA 1966). Our review of the record reveals that the jury in the present case was fully informed of Ms. Shaw’s immunity transaction and her pending perjury prosecution.

The appellant contends that there is no evidence that he committed premeditated murder on either of the victims, or that he was present aiding and abetting the robbery when they were shot. He argues that the very most the jury could have concluded from the evidence is that he was in the car seen out by the highway when the robbery and murders were committed. Therefore, he contends, the most serious crime of which he could be convicted with regard to each of the homicides is murder in the second degree, based on the felony murder rule.

In support of this contention appellant cites the distinction drawn by this Court in State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974), between first-degree felony murder and second-degree felony murder. At the time of the crimes, the degrees of homicide were defined by section 782.04, Florida Statutes (1973). The definitions of murder given in that statute had been revised by chapter 72-724, Laws of Florida, and those revisions were construed in Dixon. The Court said that the new statute established “two separate and easily distinguishable degrees of crime, depending upon the presence of the defendant as a principal in the first or second degree.” State v. Dixon, 283 So.2d at 11. Section 782.04 as amended by chapter 72-724 evinced a legislative intent “to resurrect the distinction between principals in the first or second degree on the one hand and accessories before the fact on the other, in determining whether a party to a violent felony resulting in murder is chargeable with murder in the first degree or murder in the second degree.” Id. at 11. The distinction had previously been laid to rest for all purposes by chapter 57-310, Laws of Florida. See § 776.011, Fla.Stat. (1973).

In a later case, the Court explained that the Dixon construction had provided a limited scope to the second-degree felony murder provision, and held that under the murder statute as amended by chapter 72-724,

an individual who personally kills another during the perpetration or attempt to perpetrate one of the enumerated felonies is guilty of first degree murder. In such circumstances, the statutory scheme does not allow for a conviction of second degree murder. Moreover, the felon’s liability for first degree murder extends to all of his co-felons who are personally present. As perpetrators of the underlying felony, they are principals in the homicide. In Florida, as in the majority of jurisdictions, the felony murder rule and the law of principals combine to make a felon generally responsible for the lethal acts of his co-felon. Only if the felon is an accessory before the fact and not personally present does liability attach under the second degree murder provision of the applicable statute in the instant case.

Adams v. State, 341 So.2d 765, 768-69 (Fla.1976), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 158 (1977) (footnote omitted). We conclude, therefore, that if the appellant’s conduct that the jury could have found from the evidence made him an accessory before the fact to the underlying felony of robbery, then his contention that the highest offense for which he may be convicted is second-degree murder must be accepted. If, on the other hand, the jury could have concluded from the evidence that the appellant was a principal of the first or second degree in the crime of robbery, then his contention is without merit and we must hold that the evidence was sufficient for a verdict of guilty of murder in the first degree. To determine the issue as thus framed, it is necessary, as Dixon suggested, to “refer to the rich heritage of case law on the distinctions between principals in the first or second degree and accessories before the fact.” State v. Dixon, 283 So.2d at 11.

All persons participating in a crime are principals of the first or second degree. The actual perpetrator is a principal of the first degree. A person who does not commit the crime with his own hands but is present, aiding and abetting the actual perpetrator, is a principal of the second degree. They are both equally guilty of the crime being committed. Lake v. State, 100 Fla. 373, 129 So. 827 (1930). “An accessory before the fact is one who, though absent at the time of the commission of an offense, does nevertheless procure, counsel, command, or abet another to commit such offense.” Kauz v. State, 98 Fla. 687, 124 So. 177, 178 (1929). See generally Henderson v. State, 70 So.2d 358 (Fla.1954); Albritton v. State, 32 Fla. 358, 13 So. 955 (1893).

The legislature did away with these distinctions when it enacted section 776.011, Florida Statutes (1973). Ch. 57-310, § 1, Laws of Fla. Section 776.011 provided:

776.011 Principal in first degree.— Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, is a principal in the first degree and may be charged, convicted and punished as such, whether he is or is not actually or constructively present at the commission of such offense.

However, when the legislature amended the law of murder in 1972, ch. 72-724, Laws of Fla., it revived a distinction, according to this Court’s construction in Dixon and Adams, between principals of the first and second degree on the one hand and accessories before the fact on the other, for purposes of distinguishing first and second degree felony murder. This is why the preexisting case law on that distinction is still relevant. The law of murder as amended by chapter 72-724 was in force at the time of the crimes at issue herein. It provided:

782.04 Murder.—
(1)(a) The unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any arson, rape, robbery, burglary, kidnapping, aircraft piracy, or the unlawful throwing, placing, or discharging of a destructive device or bomb, or which resulted from the unlawful distribution of heroin by a person over the age of seventeen years when such drug is proven to be the proximate cause of the death of the user, shall be murder in the first degree and shall constitute a capital felony, punishable as provided in § 775.-082.
(b) In all cases under this section, the procedure set forth in § 921.141 shall be followed in order to determine sentence of death or life imprisonment.
(2) When perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, or when committed in the perpetration of, or in the attempt to. perpetrate, any arson, rape, robbery, burglary, kidnapping, aircraft piracy, or the unlawful throwing, placing or discharging of a destructive device or bomb, except as provided in subsection (1), it shall be murder in the second degree and shall constitute a felony of the first degree, punishable by imprisonment in the state prison for life or for such term of years as may be determined by the court.
(3) When perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than arson, rape, robbery, burglary, kidnapping, aircraft piracy, or the unlawful throwing, placing, or discharging of a destructive device or bomb, it shall be murder in the third degree and shall constitute a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.084.

§ 782.04, Fla.Stat. (1973).

In a prosecution for murder in the first degree, if the accused was present aiding and abetting the commission or attempt of one of the violent felonies listed in the first-degree murder statute, he is equally guilty, with the actual perpetrator of the underlying felony, of first-degree murder. E. g. Pope v. State, 84 Fla. 428, 94 So. 865 (1922). Furthermore,

the presence of the aider and abetter need not have been actual, but it is sufficient if he was constructively present, provided the aider, pursuant to a previous understanding, is sufficiently near and so situated as to abet or encourage, or to render assistance to, the actual perpetrator in committing the felonious act or in escaping after its commission.

Id. 84 Fla. at 446, 94 So. at 871.

There was no direct evidence at trial that Earl Enmund was present at the back door of the Kersey home when the plan to rob the elderly couple led to their being murdered. J. B. Neal’s account of what Sampson Armstrong told him did not include any reference to Enmund. Ida Jean Shaw testified to Enmund’s absence that morning and his statements of his complicity. But the only evidence of the degree of his participation is the jury’s likely inference that he was the person in the car by the side of the road near the scene of the crimes. The jury could have concluded that he was there, a few hundred feet away, waiting to help the robbers escape with the Kerseys’ money. The evidence, therefore, was sufficient to find that the appellant was a principal of the second degree, constructively present aiding and abetting the commission of the crime of robbery. This conclusion supports the verdicts of murder in the first degree on the basis of the felony murder portion of section 782.04(l)(a).

The judgment of conviction of two counts of first-degree murder and one count of robbery is therefore affirmed.

III. Sentence

We come now to the consideration of the sentences of death imposed on the appellant pursuant to section 921.141, Florida Statutes (Supp.1974). The appellant has presented a number of arguments in his brief, only a few of which we find merit consideration.

Appellant contends that section 921.-141 improperly restricts the jury and judge to the consideration of the mitigating circumstances enumerated in the statute. Thus, he argues, the statute violates the eighth and fourteenth amendments under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). We have held that our statute, as it has been construed and applied, does not restrict the jury’s consideration and differs from the statute considered in Lockett. Songer v. State, 365 So.2d 696, 700 (1978) (on rehearing), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979). See generally Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); State v. Dixon, 283 So.2d 1 (Fla.1973).

Appellant contends that the trial judge’s factual findings on which he based the decision to impose death were derived in part from information not disclosed to the appellant and which he therefore had no opportunity to rebut, explain, or deny. A death sentence based on such nondis-closed information would violate the rule of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). During the pendency of this appeal, we directed the judge who imposed the sentences in this case to state whether he did so based on any such nondisclosed information. We are satisfied from his response that there was no due process violation under Gardner.

The appellant advises us that Jeanette Armstrong, originally a co-defendant with him, was tried separately, convicted of two counts of second-degree murder and one count of robbery, and sentenced to three consecutive life sentences. He argues that his death sentences must be vacated because the jury was not advised of the ultimate disposition of the charges against Jeanette Armstrong.

In Messer v. State, 330 So.2d 137 (Fla.1976), we vacated the sentence of death, partly on the ground that the court erred in refusing to permit the defendant to submit to the jury evidence of the plea-bargained conviction and sentence of the appellant’s accomplice. Any evidence reasonably related to a valid mitigating consideration should, when proffered by the defendant, be admitted into evidence at the sentencing phase of a capital felony trial. See, e. g., Miller v. State, 332 So.2d 65 (Fla.1976). Appellant did not proffer the evidence in question. Therefore, even assuming the information had some valid mitigating value, we can find no trial court error under the Messer rule.

Appellant contends that since the evidence does not establish that he intended to take life, the death penalty is impermissible under the eighth amendment ban on cruel and unusual punishment. Appellant offers us no binding legal authority that directly supports this proposition, and we therefore reject it.

After the sentencing hearing was held and sentencing arguments presented to the jury, the jury recommended a sentence of death. The trial judge sentenced appellant to death and subsequently put his findings and considerations in writing as follows:

In accordance with the mandate of the Florida Supreme Court the Court makes the following findings of fact:
1. As an aggravated circumstance, the capital felony, that is, the murders of Thomas Henry Kersey, aged 86 years and his wife Eunice Maye Kersey, aged 74, were committed while the defendant En-mund was engaged, or was an accomplice, in the commission of or an attempt to commit an armed robbery. FS 921.-141(5)(d).
2. As a further aggravating circumstance, the Court finds that the capital felony was committed for pecuniary gain. FS 921.141(5)(f). The evidence is abundantly clear that the armed robbery was committed for pecuniary gain and that the defendant Enmund was previously aware that Mr. Kersey had a reputation for keeping large sums of money on his person. The defendant Enmund actually saw Mr. Kersey with money, and the testimony amply indicates that the armed robbery of April 1, 1975, was planned ahead of time by the defendant Enmund.
3. As a further aggravating circumstance, the Court finds that the capital felony was especially heinous, atrocious, or cruel. FS 921.141(5)(h). The evidence amply supports a finding that the killing of Mr. Kersey aged 86, and Mrs. Kersey aged 74, was not a spontaneous matter. A reasonable person must conclude that the killings were done for no other purpose than to eliminate Mr. and Mrs. Ker-sey as witnesses to the armed robbery. The killings were premeditated in that Mr. Kersey was shot two (2) times and Mrs. Kersey was shot six (6) times. Two (2) bullets were subsequently recovered from the house, one (1) in the water heater and one (1) in the doorjamb. The medical examiner testified that in his opinion the bodies had to have been shot while in a prone position (his alternative explanation was that someone could have stood on a roof and shot down, or else tied the Kerseys’ by their feet, hoisted them up and shot them from below). The entry of the bullets indicates that Mr. and Mrs. Kersey were in a prone position, that is, helpless to resist. The evidence indicates that Mrs. Kersey was shot first in the left side and that these wounds were not fatal, and that thereafter someone stood back and fired upon her prone body and then fired the bullets into the heater and the wall. Further, two (2) different weapons, that is, a .22 caliber weapon and a .38 weapon were fired at and into Mr. and Mrs. Kersey.
Three individuals were charged with these crimes. The defendant Enmund and the defendant Sampson Armstrong were tried together and the defendant Jeanette Armstrong was tried separately. The Court knows from this trial and from the trial of Jeanette Armstrong that she was shot at the scene and sustained serious wounds. Since the defendant Jeanette Armstrong was seriously wounded and since both Mr. and Mrs. Kersey were each shot with bullets from two (2) different caliber guns, and since the evidence establishes that Mr. and Mrs. Ker-sey were each shot while in the prone position, it is only reasonable to conclude, and the Court so finds, that the defendant Enmund and the defendant Sampson Armstrong, each fired into the bodies of Mr. and Mrs. Kersey.
4. As a further aggravating circumstance, the Court finds that the defendant Enmund was previously convicted of a felony involving the use or threat of violence to the person. FS 921.141(5)(b). At the advisory hearing the State introduced a certified copy of a Judgment and Committment [sic] from the United States District Court, Southern District of Georgia, establishing that on April 10, 1957, the defendant Enmund was convicted of two (2) separate offenses of robbery by the use of violence.
5. The other aggravating circumstances to-wit: FS 921.141(5)(a); 921.-141(5)(c); 921.141(5)(e); and, 921.-141(5)(g), are inapplicable in this case.
As to mitigating circumstances involving the defendant Earl Enmund, the Court finds that none of the statutory mitigating circumstances applied to this defendant:
1. In particular, the Court has considered FS 921.141(6)(a), and finds that the defendant has previously been convicted of the felony of robbery.
2. As to FS 921.141(6)(b), there is absolutely no evidence or suggestion that the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.
3. As to FS 921.141(6)(c), there is absolutely no evidence that the victims were a participant in the defendant’s conduct or consented to the act.
4. As to FS 921.141(6)(d), the evidence clearly indicates that the defendant was an accomplice to the capital felony and that his participation in the capital felony was major. The defendant Enmund planned the capital felony and actively participated in an attempt to avoid detection by disposing of the murder weapons.
5. As to FS 921.141(6)(e), there is absolutely no evidence that defendant acted under extreme duress or under the substantial domination of another person.
6. As to FS 921.141(6)(f), there is absolutely no evidence that the defendant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.
7. As to FS 921.141(6)(g), the defendant was 42 years of age at the time of this offense.
Therefore, in consideration of the evidence presented at trial and at the sentencing hearing as to the defendant Earl Enmund, the Court finds that the aggravating circumstances of these capital felonies outweigh the mitigating circumstances, and upon consideration thereof, the Court was of the opinion at the time of sentencing and is now, some months later, that the sentence of death is justified and appropriate as to each Count of Murder in the First Degree.

The judge’s findings that the capital felonies were committed in the course of robbery and that the capital felonies were committed for pecuniary gain both “refer to the same aspect of the defendant’s crime.” Provence v. State, 337 So.2d 783, 786 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977). The robbery circumstance and the pecuniary motive constitute “only one factor which we must consider in this case.” Id. at 786. Where such double consideration of one factor appears to have impaired the process of weighing the aggravating circumstances against the mitigating circumstances, the sentence of death must be vacated. See Elledge v. State, 346 So.2d 998 (Fla.1977). The “mere recitation of both circumstances does not in all cases call for a condemnation of the sentencing hearing and judgment.” Hargrave v. State, 366 So.2d 1, 5 (Fla.1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979). Here, even absent the consideration of either of the factors of robbery and pecuniary gain, there remains one valid statutory aggravating circumstance to consider. There are no mitigating circumstances. The fact that the murders took place in the course of a robbery and that the criminal episode was motivated by pecuniary gain will therefore simply be treated as one factor.

The recited circumstance, that the murders were especially heinous, atrocious, and cruel, cannot be approved. Armstrong v. State, 399 So.2d 953 (Fla.1981). However, there are two aggravating circumstances (robbery-pecuniary gain and previous conviction of a violent felony) and no mitigating circumstances. The jury recommended death. The finding that no mitigating circumstances were present was not error. Therefore, the sentence of death is appropriate and we approve it.

The judgment and sentences are affirmed.

It is so ordered.

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

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

OVERTON, Justice,

concurring in part, dissenting in part.

I concur in affirming the conviction. I dissent in the sentence and would remand for resentencing in view of the specific finding of the majority that the appellant did not actually participate in the shooting. In his sentencing order the trial judge found to the contrary, expressing the view in his findings of aggravating circumstances that the appellant was present and assisted in the commission of the murder. In my opinion, these contrary findings require a resentencing proceeding.


author: McDONALD, Justice. ADKINS, J., ADKINS, Justice,

text:
    Bob GRAHAM, et al., Petitioners, v. ESTUARY PROPERTIES, INC., et al., Respondents.
    No. 58485.
    Supreme Court of Florida.
    April 16, 1981.
    Rehearing Denied June 16, 1981.

      Jim Smith, Atty. Gen., Kendrick Tucker, Deputy Atty. Gen., and Richard A. Hixson and Thomas R. Tedcastle, Asst. Attys. Gen., Tallahassee, Julie O’Connor, Charles L. Siemon and Fred P. Bosselman of Ross, Hardies, O’Keefe, Babcock & Parsons, Chicago, Ill., James T. Humphrey, Fort Myers, David E. Bruner, Marco Island, Neal D. Bowen, Sanibel, David Gluckman, Tallahassee, P. Kevin Davey of Douglass, Davey & Cooper, and C. Laurence Keesey and Mary Clark, Tallahassee, for petitioners.
    Gary P. Sams, Wade L. Hopping and Richard D. Melson of Hopping, Boyd, Green & Sams, Tallahassee, and Howard S. Rhoads of Allen, Knudsen, Swartz, De-Boest, Rhoads & Edwards, Fort Myers, for respondents.
    Ann P. Gailis, Dept, of Justice Land and Natural Resources Division Policy, Legislation and Special Litigation Section, Washington, D. C., amicus curiae for United States.
    Harry A. Stewart, Gen. Counsel and Gerald L. Knight, Asst. Gen. Counsel, Fort Lauderdale, amicus curiae for Broward County.
    Robert A. Ginbsburg, Dade County Atty. and Stanley B. Price, Asst. County Atty., Miami, amicus curiae for Dade County.
    Louis F. Hubener, Asst. Gen. Counsel, Tallahassee, amicus curiae for State of Florida Dept, of Environmental Regulation.
    Robert G. Saberson, Delray Beach, ami-cus curiae for the City of Delray Beach and the Treasure Coast Regional Planning Council.
    George G. Collins, Jr. and Anthony C. Soviero of Collins, Brown, Caldwell & Evans, Vero Beach, amicus curiae for Indian River County.
    Henry G. Manne, Director and Distinguished Professor of Law, John H. Moore, Associate Director and Research Professor of Economics, Peter H. Aranson, Special Research Administrator and Research Professor, and John Metcalf, and John M. Olin Fellow, Law and Economic Center, University of Miami School of Law, Coral Gables, and Earl B. Hadlow, William H. Adams, III, Mark C. Taylor and James T. R. Jones of Mahoney, Hadlow & Adams, Jacksonville, Thomas G. Pelham, Professor of Law, ami-cus curiae in pro. per.

      Parker D. Thomson, Jerold I. Budney and Douglas M. Halsey of Paul & Thomson, Miami, amicus curiae for Greater Miami Chamber of Commerce.
    Gary D. Lipkin, Asst. Gen. Counsel, Washington, D. C., amicus curiae for National Association of Manufacturers of the United States of America.
    Stephen T. Dean and Darryl M. Blood-worth of Dean, Mead, Egerton, Bloodworth, Capouano & Bozarth, Orlando, amicus curiae for the Florida Association of Realtors.
    William L. Earl and Paul H. Amundsen of Peeples, Earl, Smith, Moore & Blank, Miami, amicus curiae for Deltona Corp.
    Ronald A. Zumbrun and Thomas E. Hookano, Sacramento, Cal., and Raymond M. Momboisse and Chrisopher H. Collins, Washington, D. C., amicus curiae for Pacific Legal Foundation.
    Robert M. Rhodes and Terry E. Lewis of Thompson, Messer, Rhodes, Vickers & Hart, Tallahassee, Gus Bauman, Washington, D. C.; Stephen W. Metz, Tallahassee, and Philip S. Parsons of MacFarlane, Ferguson, Allison & Kelly, Tallahassee, amicus curiae for Florida Home Builders Association, National Association of Home Builders and Florida Chamber of Commerce.
    Chesterfield Smith and Julian Clarkson of Holland & Knight, Tampa, amicus curiae for Florida Phosphate Council, Inc.
   McDONALD, Justice.

This case is before the Court for review of a district court decision reported at 381 So.2d 1126 (Fla. 1st DCA 1979). We affirm in part and reverse in part.

Estuary Properties, Inc., owns almost 6,500 acres of land in Lee County on the southwest coast of Florida near Fort Myers. The site includes substantial wetlands along Estero, San Carlos, Hurricane, and Hell-Peckish Bays and is a sensitive ecological environment. Tidal waters flush daily through about 2,800 acres of predominantly red mangroves on the edge of the bays. Some 220 days a year these tidal waters move through the red mangroves into the predominantly black mangrove forest which covers approximately 1,800 acres that Estuary wants to dredge or fill. The remaining 1,800 acres begin at the salina and range from two to five feet above mean sea level. Only 526 acres of the total area have been identified as dry enough to be classified as nonwetlands.

On June 18, 1975, Estuary applied to the board of county commissioners of Lee County for approval of a development of regional impact (DRI) pursuant to section 380.06, Florida Statutes (Supp.1974). Estuary’s plan provided for no construction on the 2,800 acres of red mangroves but contemplated destroying the 1,800 acres of predominantly black mangroves. In their place a 7.5 mile “interceptor waterway” would be constructed, and the fill from the waterway (and from twenty-seven lakes to be dredged) would be used to raise the elevation of the remaining land for construction. Estuary contended that the waterway and the lakes would replace the functions of the black mangroves in the ecosystem. Estuary’s plan called for the eventual construction of 26,500 dwelling units with an estimated eventual population of 73,500, eleven commercial centers, four marinas, five boat basins, three golf courses, and twenty-eight acres of tennis facilities.

The development proposal was submitted to the Southwest Florida Regional Planning Council (SWFRPC), which prepared a report pursuant to section 380.06(8). Based on this report SWFRPC recommended that the board of county commissioners deny the application.

After public hearings, the board, adopted the SWFRPC findings and recommendations and concluded, inter alia, that the proposed development would cause the degradation of the waters of Estero and San Carlos Bays. This degradation would adversely affect both the commercial fishing and shellfishing industries, as well as the sport fishing industry, resulting in an adverse economic impact on Lee County and the region. The board denied both the increase in zoning density and the application for development approval. The commissioners listed twelve conditions which would have to be met before they would approve a development order. The first condition was that Estuary submit an amended DRI application for development approval for a maximum density of two units per acre. Such density would allow Estuary to construct 12,968 residential units as well as commercial facilities. Other conditions included eliminating the destruction of such large acreages of mangroves and giving consideration to a system of collector swales to deliver the drainage overflow over the marshland borders of the development in a manner that would not violate applicable state water quality standards for the receiving bodies of water.

Estuary appealed this order to the Florida Land and Water Adjudicatory Commission pursuant to section 380.07, Florida Statutes (1973). After a five-day hearing de novo requested by the developer, the hearing officer found that destruction of the black mangroves would have an adverse impact on the environment and natural resources of the region. He concluded that the interceptor waterway would not adequately replace the functions of the mangroves and that removing them would greatly increase the risk of pollution to the surrounding bays, thus adversely affecting the area’s economy. The hearing officer found that requiring the landowner to refrain from degrading state-owned waters was a reasonable restriction on this land required by chapter 380; consequently, he recommended denial of the appeal. The Land and Water Adjudicatory Commission adopted his recommendation and entered a final order denying the appeal.

Estuary sought judicial review in the First District Court of Appeal. That court granted relief and remanded the case to the adjudicatory commission with instructions to enter an order granting Estuary permission to develop its property, including the mangrove acreage, unless Lee County commenced condemnation proceedings on the mangrove acreage lying below the salina. The adjudicatory commission and Lee County have sought review by this Court.

The decision of the district court is divided into two points. Simply stated they are:

I. Denial of Estuary’s application for development approval violates the provisions of chapter 380, Florida Statutes (1973 and Supp.1974).
II. Denial of Estuary’s application constitutes a taking of private property for public use without compensation in violation of the United States and Florida Constitutions.

I.

A.

The district court found that chapter 380 requires a balancing of the interests of the state in protecting the health, safety, and welfare of the public against the constitutionally protected private property interests of the landowner. In this respect we agree with the district court. Although the act does not expressly mandate balancing, such legislative intent is clear from the stated purpose of the act and the factors enumerated in section 380.06(8), which the regional planning agency must consider in making a DRI recommendation. The act specifically states that private property rights are to be preserved. § 380.021, Fla. Stat. (1973). Therefore, the only way to logically and feasibly apply the act is by balancing the often conflicting interests according to the considerations listed in section 380.06(8).

The district court found that the adjudicatory commission had not balanced the considerations in section 380.06(8) noting that the commission found favorably on four of the considerations and unfavorably on only two. According to the district court, the adjudicatory commission ruled against the development only because the commission found an adverse environmental impact would result and because the proposed development deviated from the policies of the planning agency.

There is no evidence, however, that the commission did not balance the factors. Balancing in an adjudicatory process does not always mean that four favorable considerations outweigh two unfavorable considerations. The legislature did not place specific values on each consideration listed in section 380.06(8). Thus, it would have been permissible for the hearing officer to determine that the adverse environmental impact and deviation from the policies of the planning council outweighed the other more favorable findings.

In Askew v. Cross Key Waterways, 372 So.2d 913 (Fla.1978), we stated that “[fjlexi-bility by an administrative agency to administer a legislatively articulated policy is essential to meet the complexities of our modern society.” Id. at 924. Section 380.-06(8) sets out guidelines for implementing the policies of the act. The guidelines may permit discretion on the part of the agency when balancing applicable considerations. See Florida State Board of Architecture v. Wasserman, 377 So.2d 653, 656 (Fla.1979).

B.

The thrust of the district court’s holding that denial of the DRI permit was improper is that the planning council and hearing officer applied an incorrect burden of proof. The court found that “the position of the Planning Council is that a private landowner has no private right to use his property unless he can prove that such will not impair a public benefit.” 381 So.2d at 1136. In determining that this position placed an unconstitutional burden of proof on the landowner, the court relied on Zabel v. Pinellas County Water and Navigation Control Authority, 171 So.2d 376 (Fla.1965).

In Zabei this Court held that the statute in question would be unconstitutional as applied if it required the appellants to prove the proposed landfill would not materially and adversely affect any of the eight specified public interests. Zabei is of limited value in the instant case because the facts differ significantly. In Zabel the property in question had been transferred from the state to the landowners by a conveyance which carried with it a statutory right to bulkhead and fill the property purchased. The state’s subsequent denial of the fill permit amounted to the state’s reneging on its agreement. This Court found that the rights to dredge, fill, and bulkhead the land were the appellants’ “only present rights attributable to ownership of the submerged land itself.” Id. at 381. Denying those rights would have deprived the owners of the only beneficial use of their property. To then place the burden of proof on the owners to show that the dredging and filling would have no adverse impact on public interest would have been unconstitutional. When Estuary bought the property in question in this case, however, it did so with no reason to believe that the conveyance carried with it a guarantee from the state that dredging and filling the property would be permitted.

There is also a significant difference between the initial findings in Zabel and the initial findings of the planning council in this case. In Zabel the Court did not find that any material, adverse effect on the public interest had been demonstrated. 171 So.2d at 379. In the instant case there is no question but that the proposed development would have an adverse environmental impact. The issue in the present case, then, is not whether an adverse impact exists, but whether the curative measures are adequate. Zabel stands for the proposition that the burden is on the state to show that an adverse impact will result if a permit is granted. Here the state clearly met that burden. The burden of proof then shifted to Estuary to prove that the curative measures are adequate. Once there is sufficient evidence of an adverse impact, it is neither unconstitutional nor unreasonable to require the developer to prove that the proposed curative measures will be adequate.

In holding that the state has the initial burden of showing that a proposed DRI will have an adverse impact in light of section 380.06(8), we do not ignore or alter the established rule of administrative law that one seeking relief carries the burden of proof. We simply reaffirm the rule that exercise of the state’s police power must relate to the health, safety, and welfare of the public and may not be arbitrarily and capriciously applied. If the state denied a permit without showing the existence of an adverse or unfavorable impact, there would be no showing that the regulation protected the health, safety, or welfare of the public; without such a showing the denial would be arbitrary and capricious.

This brings us to the issue of whether or not Estuary met its burden of proving that the interceptor waterway would adequately cure the effect of the planned dredging and filling and of the destruction of the black mangroves. Because of the sensitive nature of the land, it was not unreasonable for the commission to place a great deal of weight on the environmental impact of the proposed development. There is sufficient competent substantial evidence in the record to support the finding of the commission that the interceptor waterway would not only fail to prevent an adverse environmental impact but would in fact pollute the surrounding bays. It may be that there was sufficient evidence to support the opposite conclusion, as Estuary suggests, but we will not substitute our judgment for a decision of the adjudicatory commission made within the ambit of its responsibilities and with due regard to law and due process. § 120.-68(10), Fla.Stat. (1977). For the reasons stated above we hold that the district court incorrectly reversed the adjudicatory commission’s finding that the proposed DRI would have an adverse impact on the region.

C.

In further support of its finding that denial of Estuary’s permit violated chapter 380, the district court found that the adjudicatory commission did not indicate any changes in the development which would make it possible for Estuary to receive the permit, as required by section 380.08(3), Florida Statutes (1973). The recommended order issued by the hearing officer and adopted by the commission did not contain any specified changes which would have placed the order in compliance with that section, and the adjudicatory commission simply adopted that order.

Appellants argue that denial of the appeal effectively reinstated the order of the Southwest Florida Regional Planning Council (SWFRPC) which contains twelve specific changes which Estuary must incorporate in its proposal in order to make it eligible to receive a permit. However, section 380.-08(3) states that if any government agency denies a development permit it shall specify its reasons in writing and indicate any changes in the development proposal that would make it eligible to receive a permit. The adjudicatory commission, consisting of the governor and other state officers exercising administrative powers, is a state agency.

It may be, as appellants urge, that the commission intended to adopt the changes specified by the planning council. If this were true, however, the commission’s order should have expressly so indicated. Furthermore, the recommended order indicates that the hearing officer did not find that the changes specified by the planning council were adequate. The recommended order states that some of the requirements of the council are “so vague and indefinite that it [is] doubtful that Estuary could ascertain what it would be required to do to obtain approval.” 381 So.2d at 1132. This language does not indicate an intention to adopt the planning council’s changes in order to comply with section 380.08(3). The procedure before the hearing officer was a de novo review. Therefore it was incumbent upon the hearing officer to indicate any changes that would make the proposal eligible to receive a permit.

Failure of the adjudicatory commission to indicate the requisite changes was a procedural error on its part. Although the error did not necessarily render the decision incorrect, it impaired the fairness of the proceeding. Therefore, the district court should have remanded the case for further agency proceedings on that point and is now directed to so remand. See § 120.68(8), Fla.Stat. (1977).

II.

The second point upon which the district court based its decision was that denial of the permit constituted a taking of Estuary’s property for a public purpose without compensation, in violation of the Florida and United States Constitutions.

Section 120.68(12)(c), Florida Statutes (1977), calls for the remand of a case to the agency if the reviewing court finds that the agency’s exercise of discretion violated a constitutional or statutory provision. We disagree with the district court’s conclusion that the facts as found by the agency constituted a taking and therefore violated the constitution or section 380.08, Florida Statutes.

There is no settled formula for determining when the valid exercise of police power stops and an impermissible encroachment on private property rights begins. Whether a regulation is a valid exercise of the police power or a taking depends on the circumstances of each case. Some of the factors which have been considered are:

1. Whether there is a physical invasion of the property.
2. The degree to which there is a diminution in value of the property. Or stated another way, whether the regulation precludes all economically reasonable use of the property.
3. Whether the regulation confers a public benefit or prevents a public harm.
4. Whether the regulation promotes the health, safety, welfare, or morals of the public.
5. Whether the regulation is arbitrarily and capriciously applied.
6. The extent to which the regulation curtails investment-backed expectations.

See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922); Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348 (1915); Newman v. Carson, 280 So.2d 426 (Fla.1973); State Plant Board v. Smith, 110 So.2d 401 (Fla.1959); Varholy v. Sweat, 153 Fla. 571, 15 So.2d 267 (1943).

If the regulation does not promote the health, safety, welfare, or morals of the public, it is not a valid exercise of the police power. Newman. Likewise, if the regulation is arbitrarily and capriciously applied it is an invalid exercise of the police power. Varholy. If the regulation creates a public benefit it is more likely an exercise of eminent domain, whereas if a public harm is prevented it is more likely an exercise of the police power. See State Plant Board. It would seem, therefore, that if the regulation preventing the destruction of the mangrove forest was necessary to avoid unreasonable pollution of the waters thereby causing attendant harm to the public, the exercise of police power would be reasonable. On the other hand, if the retention of the forest simply created a public benefit by providing a source of recreational fishing for the public, the regulation might be a taking.

Protection of environmentally sensitive areas and pollution prevention are legitimate concerns within the police power. Moviematic Industries Corp. v. Board of County Commissioners, 349 So.2d 667 (Fla. 3d DCA 1977). In the instant case, the adjudicatory commission found that the proposed development would cause pollution in the surrounding bays. Such pollution would affect the economy of Lee County. Therefore, the regulation at issue here promotes the welfare of the public, prevents a public harm, and has not been arbitrarily applied.

It may be, however, that a regulation complies with standards required for the police power but still results in a taking. This occurred in Pennsylvania Coal Co., upon which Estuary and the district court relied. In Pennsylvania Coal Co. the Court considered a Pennsylvania statute, passed to protect the public safety, which prohibited subsurface mining of coal if such mining would cause subsidence of the surface. The Court held that enforcement of the statute amounted to a taking which required compensation. In holding that the mining prohibition was unconstitutional as applied, the Court emphasized that the statute rendered the coal company’s rights to subsurface minerals virtually worthless. 260 U.S. at 414, 43 S.Ct. at 159.

The district court apparently determined that prohibiting the destruction of the mangroves rendered Estuary’s property “virtually worthless.” In support of this determination, the court relied on three cases: Zabel v. Pinellas County Water and Navigation Control Authority, 171 So.2d 376 (Fla.1965); Alford v. Finch, 155 So.2d 790 (Fla.1963); and Askew v. Gables-By-The-Sea, Inc., 333 So.2d 56 (Fla. 1st DCA 1976), cert. denied, 345 So.2d 420 (Fla.1977). Zabel has already been distinguished from the case at bar and Gables-By-The-Sea, Inc. can be distinguished on similar grounds. In both cases the landowners had bought submerged bottom lands from the state. In both cases denying the right to fill the land deprived the landowners of all reasonable use of their property. In both cases all of the owners’ lands were submerged and were totally useless without the right to fill them.

The property owned by Estuary, on the other hand, is not entirely submerged although part of it is covered part of the time by tidal flows. Furthermore, Estuary did not purchase its property from the state. Estuary purchased the property in question from a private individual with full knowledge that part of it was totally unsuitable for development.

Estuary argues that without the interceptor waterway it can make no beneficial use of its property. This argument is supported mainly by the self-serving testimony of the president of Estuary, who stated that he did not “believe that we can economically survive” by building approximately one-half the number of units originally proposed and giving up the interceptor waterway. Estuary offered no independent evidence to support this contention.

Simply because the interceptor waterway would increase the value of the property does not mean that disallowing it constitutes a taking. Nor is a taking established merely because Estuary may be allowed to build a development only half the size of its original proposal. We agree with the Wisconsin Supreme Court’s observations in Just v. Marinette County, 56 Wis.2d 7, 201 N.W.2d 761 (1972), where that court pointed out the involvement of exceptional circumstances because of the interrelationship of the wetlands, swamps, and natural environment to the purity of the water and natural resources such as fishing. The court also noted the close proximity of the land in question to navigable waters which the state holds in trust for the public. Similar factors are present in the case at bar. We agree with the Wisconsin court that “[a]n owner of land has no absolute and unlimited right to change the essential natural character of his land so as to use it for a purpose for which it was unsuited in its natural state and which injuries the rights of others.” 56 Wis.2d at 17, 201 N.W.2d at 768.

We do not hold that any time the state requires a proposed development to be reduced by half it may do so without compensation to the owner. We do hold that, under the facts as found by the commission, the instant reduction is a valid exercise of the police power. As we have already pointed out, there was ample evidence for the commission to find that destruction of the mangroves and creation of the waterway would result in an adverse impact on the surrounding area. The owner of private property is not entitled to the highest and best use of his property if that use will create a public harm. Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962).

As previously stated, the line between the prevention of a public harm and the creation of a public benefit is not often clear. It is a necessary result that the public benefits whenever a harm is prevented. However, it does not necessarily follow that the public is safe from harm when a benefit is created. In this case, the permit was denied because of the determination that the proposed development would pollute the surrounding bays, i. e., cause a public harm. It is true that the public benefits in that the bays will remain clean, but that is á benefit in the form of maintaining the status quo. Estuary is not being required to change its development plan so that public waterways will be improved. That would be the creation of a public benefit beyond the scope of the state’s police power.

The district court also relied on Alford v. Finch, 155 So.2d 790 (Fla.1963). In Alford the state attempted to incorporate the landowners’ property into a game preserve without compensation to or consent of the owners. As in Zabel and Gables-By-The-Sea, Inc., the basis for finding that a taking occurred was that the state action rendered the property virtually valueless. For the reasons stated above, that determination is not present in this case.

Underlying all of the cases involving the police power to regulate private property is the reasonableness of the regulation. In Alford, for example, the plaintiffs’ land was required to be a game preserve while the lands of adjacent property owners were not. This requirement implicitly supports the unreasonableness of the regulation in that case. The landowners in Alford did not seek to alter their land so as to adversely affect their neighbors. They simply wanted to hunt on their land in the same manner as their neighbors. In those circumstances it was unreasonable to subject those landowners to such a total restriction on the use of their property. In distinguishing Alford from the instant case, we again stress the magnitude of Estuary’s proposed development and the sensitive nature of the surrounding lands and water to be affected by it. In this situation it is not unreasonable to place some restrictions on the owner’s use of the property.

Another factor which may be considered in determining the reasonableness of an exercise of the police power involves the investment-backed expectations of the use of the property. In Zabel and Gables-By-The-Sea, Inc., the property owners’ investment was backed by the expectation that they would be permitted to fill the lands in question. This expectation was further supported in Zabel by a statutory right to fill which existed when the property was purchased. Estuary, on the other hand, had only its own subjective expectation that the land could be developed in the manner it now proposes. Estuary diligently and at considerable expense prepared development plans in an attempt to assure that its development would not adversely affect the environment. It recognized that it should not materially alter the property in a way that would have serious adverse impact on the surrounding area. The fact finder concluded that Estuary’s plans do not accomplish this goal, and that the development would in fact be detrimental to the surrounding area.

This case is remanded to the district court of appeal with instructions to remand it to the Florida Land and Water Adjudicatory Commission with instructions to that commission to comply with section 380.08(3), Florida Statutes (1973), as set forth in this opinion.

It is so ordered.

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

ADKINS, J.,

dissenting.

I would approve the opinion and decision of the District Court.

The motions for rehearing and clarification filed by attorneys for respondents, and replies thereto,

IT IS ORDERED by the Court that said motions be and the same are hereby denied.

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

ADKINS, J., dissents with an opinion.

ADKINS, Justice,

dissenting.

I would grant rehearing and approve the opinion and decision of the district court. I also believe the dissenting opinion by Justice Brennan of the United States Supreme Court in San Diego Gas & Electric Co. v. City of San Diego,-U.S.-, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981), controls our decision in this case.

The type of property involved in the San Diego dispute is similar to that proposed for development by Estuary. San Diego Gas owned a 412-acre parcel of land in the northwest part of San Diego, California. Approximately 214 of these acres, located within an estuary known as the Los Renas-quitos Lagoon, were low-lying lands which serve as a drainage basin for three river systems. About a third of the property was subject to tidal action from the nearby Pacific Ocean.

The master plan for the city of San Diego, adopted in 1967, designated nearly all of the area owned by San Diego Gas for industrial use. In 1973 the city council down-zoned 39 acres of the company’s property from industrial to agricultural use. The city also established an open-space plan that placed about 233 acres of the San Diego Gas parcel in the city’s open space areas. The effect of these actions, like the denial of Estuary’s D.R.I. application by the Land and Water Adjudicatory Commission and Lee County, was to restrict more than half of the company’s land from any private development and reserve it for public purposes.

San Diego Gas filed suit in state court, alleging that the city had taken its property without just compensation in violation of the federal and state constitutions on the theory that the city had deprived it of the beneficial use of the property through the rezoning and adoption of the open-space plan. Although the trial court’s judgment for San Diego Gas was initially affirmed, San Diego Gas & Electric Co. v. City of San Diego, 146 Cal.Rptr. 103 (Ct.App.1978), the California Court of Appeal later reversed itself, in part because the company had not made application to use or improve the property nor had it asked the city what development might be permitted. San Diego Gas appealed to the United States Supreme Court, claiming that the Fifth and Fourteenth Amendments require the payment of compensation whenever private property is taken for public use. This is one of the issues we must resolve in deciding whether the denial of Estuary’s D.R.I. application constitutes a taking of private property or a regulation of land use.

A five-member majority of the United States Supreme Court (Rehnquist, J., concurring) left the taking issue undecided in San Diego Gas and dismissed the appeal for lack of a final judgment. In his concurring opinion, Justice Rehnquist explained that if the appeal was from a final judgment, he would have agreed with the dissent. The four dissenting justices found that the California Court of Appeal rendered a final judgment when it held that no Fifth Amendment taking had occurred, and they went on to address the merits of the question presented. Their rule requiring the payment of just compensation when a police power regulation effects a taking should apply to the actions of the adjudicatory commission and Lee County in denying Estuary the beneficial use of its property. Five United States.Supreme Court Justices agree on this principle.

The United States and Florida Constitutions prohibit the taking of private property for public use without the payment of just compensation. U.S.Const. Amends. V, XIV; Art. I, § 9, Art. X, § 6(a), Fla.Const. The difficulty arises in classifying a government regulation as either an unconstitutional taking of private property for public purposes or a permissible exercise of police power over land use. Recent United States Supreme Court cases have offered some guidelines in making such a determination.

Last term in Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980), the Court declared that “[t]he application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests, ... or denies an owner economically viable use of his land.” Id. at 2141 (emphasis added).

The dissent in San Diego Gas provided this explanation:

Police power regulations such as zoning ordinances and other land-use restrictions can destroy the use and enjoyment of property in order to promote the public good just as effectively as formal condemnation or physical invasion of property. From the property owner’s point of view, it may matter little whether his land is condemned or flooded, or whether it is restricted by regulation to use in its natural state, if the effect in both cases is to deprive him of all beneficial use of it. From the government’s point of view, the benefits flowing to the public from preservation of open space through regulation may be equally great as from creating a wildlife refuge through formal condemnation or increasing electricity production through a dam project that floods private property.... [Government action other than acquisition of title, occupancy, or physical invasion can be a ‘taking,’ and therefore a defacto exercise of the power of eminent domain, where the effects completely deprive the owner of all or most of his interest in the property.

(Emphasis added) (footnotes omitted).

These guidelines support the holding of the First District Court of Appeal that Estuary’s property has been taken. By denying the D.R.I. application, Lee County and the adjudicatory commission deprived Estuary of the beneficial use of almost three-quarters of its property. This area, encompassing some 4,600 acres of red mangroves and black mangroves, is preserved for the public at the expense of the individual landowner.

According to the opinion of the district court “the principal reason for the denial of [Estuary’s] application was to preserve mangroves which presently serve as a protective buffer for the Estero Bay Aquatic Preserve, adjacent bay systems, and public fishing grounds.” Estuary Properties, Inc. v. Askew, 381 So.2d 1126, 1138 (Fla. 1st DCA 1979). Lee County and the adjudicatory commission have a right to preserve these mangrove forests, as long as the property owner is compensated. I agree with the district court’s determination that the costs of such public benefits must be borne by the public.

Justice Brennan proposed the following rule in his San Diego Gas dissent: “[0]nce a court finds that a police power regulation has effected a ‘taking’, the government entity must pay just compensation for the period commencing on the date the regulation first effected the ‘taking’, and ending on the date the government entity chooses to rescind or otherwise amend the regulation.” 101 S.Ct. 1287, 1307 (footnote omitted). The purpose of the compensation requirement is to place the landowner in the same monetary position as he would have occupied if his property had not been taken. Since Estuary must assume more than a fair share of the public burden by preserving its land from development, I would require the payment of just compensation to redistribute the economic cost from the individual property owner to the public at large.

Article I, section 2, (Declaration of Rights), Florida Constitution, in defining our “basic rights” contains the following: “All natural persons are equal before the law and have inalienable rights, among which are the right ... to acquire, possess and protect property.... ”

The concern of public officials over environmentally endangered lands is a laudable one and is shared by all of our citizens. On the other hand, the right of an individual to own and enjoy property was one of the foundation stones on which our government was formed. As government grows the individual property rights diminish, for we focus our attention on the welfare of the majority at the expense, and ultimate destruction, of the property owner. If one foundation stone crumbles, our form of government will fall.

      . The Florida Environmental Land and Water Management Act of 1972, ch. 380, Fla.Stat. (1973 & Supp.1974), has been amended subsequent'to Estuary’s application for a permit, but the changes do not affect the issues here.

      . Under the board’s suggested rezoning, Estuary would be allowed 2 units per acre to be built on an upland site, leaving the submerged mangrove forests undeveloped.

      . Additional conditions were aimed at alleviating the serious impact of a development of this size on local water supplies, schools, roads, sewage treatment facilities, and other government services.

      . Final Order of the Fla. Land and Water Adjudicatory Comm’n., Estuary Properties, Inc. v. Board of County Comm’rs., App.No.7608 (Dec. 27, 1977).

      . § 380.021, Fla.Stat. (1973).

      . § 380.06(8) states:
      Within 50 days after receipt of the notice required in paragraph (7)(d), the regional planning agency, if one has been designated for the area including the local government, shall prepare and submit to the local government a report and recommendations on the regional impact of the proposed development. In preparing its report and recommendations the regional planning agency shall consider whether, and the extent to which:
      (a) The development will have a favorable or unfavorable impact on the environment and natural resources of the region;
      (b) The development will have a favorable or unfavorable impact on the economy of the region;
      (c) The development will efficiently use or unduly burden water, sewer, solid waste disposal, or other necessary public facilities;
      id) The development will efficiently use or unduly burden public transportation facilities;
      (e) The development will favorably or adversely affect the ability of people to find adequate housing reasonably accessible to their places of employment; and
      (f) The development complies or does not comply with such other criteria for determining regional impact as the regional planning agency shall deem appropriate.

      . It is not clear that the hearing officer did find in favor of Estuary on four of the six statutory factors, but, even assuming that such findings were made, the hearing officer was not precluded from determining that the overall environmental detriment was so extensive that the balance weighed against approval of the proposed development.

      . Estuary argued in the district court that a similar guarantee did exist when the land was purchased. The district court found that contention had no merit. 381 So.2d at 1140.

      . § 120.52(1), Fla.Stat. (1977).

      . The reviewing court cannot substitute its judgment for that of the agency on a finding of fact or the weight thereof. § 120.68(10), Fla. Stat. (1977).

      . See n.2 supra.