author: SUNDBERG, Justice.

text:
    SURF COAST TOURS, INC., Petitioner, v. FLORIDA PUBLIC SERVICE COMMISSION and Florida Limousine Service, Inc., Respondents.
    No. 55807.
    Supreme Court of Florida.
    June 26, 1980.
    E. William Crotty and B. Paul Katz of Black, Crotty, Sims & Hubka, Daytona Beach, for petitioner.
    Prentice P. Pruitt and M. Robert Christ, Tallahassee, for Florida Public Service Commission.
    Gregory A. Presnell and Robert B. Na-deau, Jr. of Akerman, Senterfitt & Eidson, Orlando, for Florida Limousine Service, Inc.
   SUNDBERG, Justice.

By petition for writ of certiorari, petitioner seeks review of Florida Public Service Commission Order No. 14805. We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution (1972), and for the following reasons we approve the order of the Commission.

By Order No. 13984-A, issued January 11, 1978, the Florida Public Service Commission granted the transfer of a portion of Certificate of Public Convenience and Necessity No. 728 from Turfway Lines, Inc. to Surf Coast Tours, Inc. Accordingly, Certificate of Public Convenience and Necessity No. 1313 was issued to petitioner on January 23, 1978. On January 18, 1978, Florida Limousine Service, Inc. filed with the Commission an application for expansion of rights under an existing certificate, including special operations «authority from points in Volusia County east of 1-95. Petitioner Surf Coast Tours, Inc. and several other carriers filed protests to the application. After public hearings, the Commission on November 30, 1978, accepted for the most part the hearing examiner’s recommendations and granted the application. It is from this order that petitioner seeks review.

In determining whether a certificate of public convenience and necessity shall be granted, section 323.03(4), Florida Statutes (1977), directs the Florida Public Service Commission to specifically consider, among other things, the following elements:

(a) Whether existing transportation service of all kinds is adequate to meet the reasonable public needs.
(b) The present necessity for the certificate in relation to the volume of existing or projected future traffic over such route or in such territory.
(c) The financial ability of the applicant to furnish adequate, continuous, and uninterrupted service at the times required therefor, and to meet the financial obligations of the service which the carrier proposes to perform.
(d) The effect on existing transportation facilities and service of all kinds, and particularly whether the granting of such certificate will or may seriously impair essential public service as provided by existing motor carriers.
(e) The fitness of the applicant properly to perform the proposed service and to conform to provisions of this part and the rules of the commission.
(f) The feasibility of the transportation proposed.

Petitioner takes exception with the Commission’s findings in this case that (1) the existing transportation service is inadequate to meet the reasonable public needs; (2)Florida Limousine possesses the requisite financial ability to furnish adequate, continuous and uninterrupted service at the times required; and (3) the granting of the certificate will not seriously impair essential public service as provided by existing motor carriers.

We reiterate at the outset that the scope of this Court’s certiorari review of orders of the Florida Public Service Commission is narrow. Our task is to determine whether the Commission's action comports with the essential requirements of law and is supported by competent substantial evidence. Florida Telephone Corp. v. Mayo, 350 So.2d 775 (Fla.1977). Orders of the Commission come to this Court with a presumption of correctness, and it is petitioner’s burden to prove error. Gulf Oil Co. v. Bevis, 322 So.2d 30 (Fla.1975); Fargo Van & Storage, Inc. v. Bevis, 314 So.2d 129 (Fla.1975); Florida East Coast Ry. v. King, 158 So.2d 523 (Fla.1963).

The record in this cause is woefully sparse and incomplete. Petitioner is unable to substantiate its sweeping assertions of error by specific reference to the transcript or other parts of the record. It thus has failed to carry its burden of showing that the above findings of the Commission are unsupported by competent substantial evidence.

Petitioner’s final contention involves the application of section 323.03(5), Florida Statutes (1977):

(5)TERRITORY ALREADY SERVED. — When application is made by a motor carrier for a certificate to operate as a carrier in a territory or on a line already served by a certificate holder, the commission shall grant same only when the existing certificate holder or holders serving such territory fail to provide service and facilities which may reasonably be required by the commission.

This Court has held repeatedly that pursuant to this subsection, the availability of existing facilities to render the required service must be shown to exist prior to or at the time of application for new or duplicating service. American Sightseeing Tours, Inc. v. Mayo, 326 So.2d 168 (Fla.1976); Central Truck Lines, Inc. v. King, 143 So.2d 477 (Fla.1962); Greyhound Corp., Southeastern Greyhound Lines Division v. Carter, 124 So.2d 9 (Fla.1960); Ace Delivery Service, Inc. v. Boyd, 111 So.2d 448 (Fla.1959); Alterman Transport Line v. Carter, 88 So.2d 594, 597 (Fla.1955) (on rehearing). The Commission accordingly found that because the transportation facilities in existence at the time of the filing of Florida Limousine’s application were being conducted by petitioner’s predecessor, Turfway Lines, Inc., the adequacy of existing service and facilities must be measured by evaluating Turfway’s performance. Petitioner does not contest the Commission’s finding that Turfway’s performance had been substandard, but argues that extraordinary circumstances dictate that it be given an opportunity to provide the needed services before the Commission may grant competing authority. In our view, petitioner has failed to demonstrate a compelling reason why it should not be held to the above rule of law.

Accordingly, the petition for writ of cer-tiorari is denied.

It is so ordered.

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

      . Certain findings of the examiner, not relevant to this petition, were rejected by the Commission.


source: Caselaw Access Project

author: OVERTON, Justice.

license: Public Domain

text:
    NATIONWIDE HORSE CARRIERS, INC., and B & G Horse Transportation, Inc., Petitioners, v. Robert T. MANN et al., Respondents. MURTY BROTHERS AGENCY, INC., Petitioner, v. Robert T. MANN et al., Respondents.
    Nos. 57551, 57654.
    Supreme Court of Florida.
    June 26, 1980.
    David B. Erwin and Thomas F. Woods of Woods, Johnston & Erwin, Tallahassee, for Nationwide Horse Carriers, Inc.
    James D. Whisenand of Sage, Gray, Doss, Lynch & Castro, Miami, for B & G Horse Transportation, Inc.
    John P. Bond of Bond & Woitesek, Miami, for Murty Brothers Agency, Inc.
    Prentice P. Pruitt and Paul Sexton, Tallahassee, for Florida Public Service Commission.
    James E. Wharton, Orlando, for Emeral-da, intervening respondent.
   OVERTON, Justice.

These are petitions to review an order of the Public Service Commission, which issued a certificate to Emeralda, a partnership, authorizing the transportation of horses other than ordinary livestock. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. Petitioners were protestants during the application hearings. Although petitioners do not object to the certification for the transport of show horses, they do object to the certification for the transport of race horses on the grounds that their own service is adequate. In response to petitioners’ argument, the Commission stated in its order:

A review of the record fails to disclose any material difference in the nature of the transportation of show horses as opposed to other horses. We can find no distinguishing characteristics between the transportation of race horses, brooding mares and show horses, except that currently certificated carriers have chosen not to transport show horses. This is hardly a basis for dividing a market. The transportation of one type of thoroughbred horse from another is indistinguishable and any attempt to divide the market would be totally unenforceable and unrealistic. The market for the transportation of thoroughbreds is homogeneous and uniform and any attempt to subdivide it would interfere with efficient and economical transportation.

We agree with the Commission and deny the petitions for certiorari.

It is so ordered.

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


author: SUNDBERG, Justice. ENGLAND, Chief Justice, ADKINS, Justice,

text:
    Philip H. JENKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 59087.
    Supreme Court of Florida.
    June 26, 1980.

      Edward A. Garrison of Kohl, Springer, Springer & Garrison, Palm Springs, for petitioner.
    Jim Smith, Atty. Gen., and John D. Ceci-lian, Asst. Atty. Gen., West Palm Beach, for respondent.
   SUNDBERG, Justice.

We here address the question whether this Court currently has jurisdiction to review a decision of a district court of appeal which reads in its entirety “Per Curiam Affirmed” where a dissenting opinion is filed in the case. We answer the question in the negative.

Review of the decision of the District Court of Appeal, Fourth District, was sought in this cause by notice to invoke the certiorari jurisdiction of this Court filed April 11,1980. By his application petitioner asserts that the decision of the district court is in conflict with decisions of other districts or with Supreme Court decisions upon the issue of whether uncorroborated hearsay information from a confidential informant, who had not divulged the source of his information, was sufficient to establish probable cause for a warrantless search of a vehicle. Prior to trial, petitioner moved to suppress evidence seized in a search of his vehicle. The trial court denied the motion to suppress. Petitioner subsequently entered a plea of nolo contendere preserving his right to appeal the trial court ruling. On review the district court affirmed the ruling of the trial court without opinion. One member of the three-judge panel dissented to the decision of the majority in a comprehensive opinion which recited the facts extensively and concluded that under prevailing law the search violated petitioner’s fourth amendment rights.

After ratification by the people of this state at an election held on March 11, 1980, article V, section 3 of the Florida Constitution pertaining to the jurisdiction of the Supreme Court was substantially revised. In particular, section 3(b)(3) underwent a dramatic change. Prior to April 1, 1980 (the effective date of the amendment), the provisions of section 3(b)(3) relating to review of conflicting decisions read as follows:

May review by certiorari any decision of a district court of appeal that is in direct conflict with a decision of any district court of appeal or of the supreme court on the same question of law. .

Post April 1, 1980, that section reads with respect to review of conflicting decisions:

May review any decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law. .

(Emphasis supplied.)

The constitutional amendment must be viewed in light of the historical development of the decisional law extant at the time of its adoption and the intent of the framers and adopters. Our inquiry must begin with the amendment to article V of the Florida Constitution occurring in 1956, whereby the district courts of appeal were created. In grappling with the significance of the revised jurisdiction of this Court, a tone was set early on. In Ansin v. Thurston, 101 So.2d 808, 810 (Fla.1958), speaking through Justice Drew, the Court said:

We have heretofore pointed out that under the constitutional plan the powers of this Court to review decisions of the district courts of appeal are limited and strictly prescribed. Diamond Berk Insurance Agency, Inc. v. Goldstein, Fla., 100 So.2d 420; Sinnamon v. Fowlkes, Fla., 101 So.2d 375. It was never intended that the district courts of appeal should be intermediate courts. The revision and modernization of the Florida judicial system at the appellate level was prompted by the great volume of eases reaching the Supreme Court and the consequent delay in the administration of justice. The new article embodies throughout its terms the idea of a Supreme Court which functions as a supervisory body in the judicial system for the State, exercising appellate power in certain specified areas essential to the settlement of issues of public importance and the preservation of uniformity of principle and practice, with review by the district courts in most instances being final and absolute.
To fail to recognize that these are courts primarily of final appellate jurisdiction and to allow such courts to become intermediate courts of appeal would result in a condition far more detrimental to the general welfare and the speedy and efficient administration of justice than that which the system was designed to remedy.

This was followed by Lake v. Lake, 103 So.2d 639 (Fla.1958), where Justice Thomas again reviewed the history of and purposes for the 1956 amendment to article V and held that in order to fulfill those purposes, a “per curiam” decision without opinion of a district court of appeal would not be reviewed by this Court upon petition for certiorari based on “direct conflict” jurisdiction except in those rare cases where the “restricted examination required in proceedings in certiorari [revealed] that a conflict had arisen with resulting injustice to the immediate litigant.” Id. at 643. Some seven years later, however, in an opinion which observed that the rule of Lake v. Lake had been eroded de facto if not de jure by subsequent actions of the Court, a majority of the Court determined that there was jurisdictional power under section 3(b)(3) to review district court decisions rendered “per curiam” without opinion if from the “record proper” conflict with another decision could be discerned. Foley v. Weaver Drugs, Inc., 177 So.2d 221 (Fla.1965).

In the interim the Court had already concluded that conflict certiorari jurisdiction could be founded on a dissenting opinion to a per curiam majority decision rendered without opinion. Huguley v. Hall, 157 So.2d 417 (Fla.1963). This position was adopted by a majority of the Court without discussion or rationale and has been subsequently followed without amplification of reasoning. E. g., Autrey v. Carroll, 240 So.2d 474 (Fla.1970); Commerce National Bank in Lake Worth v. Safeco Insurance Co., 284 So.2d 205 (Fla.1973). In the Commerce National Bank decision, however, the impediments to relying on the factual statement contained in a dissenting opinion to establish conflict jurisdiction were observed:

When facts and testimony are set forth in a majority opinion, they are assumed to be an accurate presentation upon which the judgment of the court is based. However, a dissent does not rise to a similar level of dignity and is not considered as precedent; note, for example, that West Publishing Company does not offer headnotes for dissents, regardless of their legal scholarship. By definition, a dissent contains information, interpretations or legal analysis which has been rejected in whole or part, by the majority. It is also possible that the majority accepts matters set forth in the dissent, but for other reasons declines to follow its line of thought. The majority is under no compulsion to respond to a dissent or to set out the measure of their reluctance to agree. The issuance of a per curiam opinion without comment or citation of authority remains the prerogative of the majority.

Id. at 207.

More recently, the wisdom of the jurisdictional policies expressed in Foley and Huguley have been brought into question by several members of this Court. See Florida Greyhound Owners & Breeders Association, Inc. v. West Flagler Associates, Ltd., 347 So.2d 408, 408 (Fla.1977) (England, J., concurring; Overton, C. J., concurring specially); Golden Loaf Bakery, Inc. v. Charles W. Rex Construction Co., 334 So.2d 585, 586 (Fla.1976) (England, J. and Overton, C. J., concurring); AB CTC v. Morejon, 324 So.2d 625, 628 (Fla.1975) (England and Overton, JJ., dissenting).

It was against this jurisprudential backdrop and in the face of a staggering case load that in November, 1979, this Court urged the legislature, meeting in special session, to enact a proposed amendment to section 3 of article V of the Florida Constitution to limit the jurisdiction of the Supreme Court. Times were not unlike the year 1956 when the challenge confronting the drafters of that amendment to the judicial article was described thus:

The means and procedure required to accomplish the improvement were difficult, complicated, tedious and onerous.
Yet the determination was not lacking for congestion in the court of last resort had become almost intolerable. The time had come when the court, working at top speed, with cases, except extremely emergent ones, set in the order of their maturity, was hearing arguments as late as fourteen months after the cases were ready for oral presentation.
For about eighteen months after its creation the [Judicial] Council, in periodic meetings, debated and deliberated the method which might most effectively modernize a system that by overloading had ceased to function as it should to assure litigants justice without undue, or even ruinous, delay. The words of Gladstone were often heard: “Justice delayed is justice denied.”

Lake v. Lake, 103 So.2d 639, 640-41. The legislature responded through enactment of Senate Joint Resolution No. 20-C, which forms the language of the current section 3 of article V.

At hearings before the legislature and in countless meetings with representatives of The Florida Bar, The Conference of Circuit Judges of Florida, the Appellate Judges’ Conference, The League of Women Voters as well as other interested organizations too numerous to recount, members of this Court represented that one of the intents and effects of the revision of section 3(b)(3) was to eliminate the jurisdiction of the Supreme Court to review for conflict purposes per curiam decisions of the district courts of appeal rendered without opinion, regardless of the existence of a concurring or dissenting opinion. These same representations were made consistently to the public at large preceding the ballot on the proposed amendment. There can be little doubt that the electorate was informed as to this matter, because opponents of the amendment broadcast from one end of this state to the other that access to the Supreme Court was being “cut off,” and that the district courts of appeal would be the only and final courts of appeal in this state. With regard to review by conflict certiorari of per curiam decisions rendered without opinion, they were absolutely correct.

The pertinent language of section 3(b)(3), as amended April 1, 1980, leaves no room for doubt. This Court may only review a decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal or the Supreme Court on the same question of law. The dictionary definitions of the term “express” include: “to represent in words”; “to give expression to.” “Expressly” is defined: “in an express manner.” Webster's Third New International Dictionary, (1961 ed. unabr.). The single word “affirmed” comports with none of these definitions. Furthermore, the language and expressions found in a dissenting or concurring opinion cannot support jurisdiction under section 3(b)(3) because they are not the decision of the district court of appeal. As stated by Justice Adkins in Gibson v. Maloney, 231 So.2d 823, 824 (Fla.1970), “[i]t is conflict of decisions, not conflict of opinions or reasons that supplies jurisdiction for review by certiorari.” (Emphasis in original.)

Accordingly, we hold that from and after April 1, 1980, the Supreme Court of Florida lacks jurisdiction to review per cu-riam decisions of the several district courts of appeal of this state rendered without opinion, regardless of whether they are accompanied by a dissenting or concurring opinion, when the basis for such review is an alleged conflict of that decision with a decision of another district court of appeal or of the Supreme Court. The application for review in the instant case having been filed subsequent to March 31, 1980, it is therefore dismissed.

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

ENGLAND, C. J., concurs specially with an opinion.

ADKINS, J., dissents with an opinion.

ENGLAND, Chief Justice,

concurring specially.

A detailed recitation of the relevant history of the 1980 jurisdictional amendment is relevant to an understanding of the majority’s conclusions as to its applicability in this case.

In his 1978 Report to the Legislature, then Chief Justice Ben Overton recommended the creation of a commission, having broad based participation, to determine the need for an additional district court and to consider district court rather than supreme court review of workmen’s compensation cases. In the summer of 1978, newly-elected Chief Justice Arthur England implemented Justice Overton’s recommendation by appointing an Appellate Structure Commission chaired by Justice Overton and composed of district, circuit and county court judges, legislators, laymen and members of the bar. Chief Justice England expanded the scope of the commission’s inquiry, however, to include a review of the entire appellate system in light of the 1956 goal “to ensure that the district courts of appeal are courts of final appellate review as contemplated by Article V of the Constitution.”

In response to its expanded duty, the commission analyzed each category of the supreme court’s jurisdiction to determine if cases in those categories were significant or important enough to justify the attention of a then overloaded state high court. Tentative votes, taken at the October 12, 1978 meeting, indicated the commissioners’ view that, ideally, mandatory jurisdiction should be restricted to death penalty cases, decisions invalidating statutes or construing the constitution, and bond validation proceedings. Nonetheless, after six months of work, the commission rejected constitutional change to achieve this goal and recommended only that the supreme court’s jurisdiction be modified by statute and by rule.

After weeks of intense discussion within the Court and numerous internal drafts of proposed changes, the chief justice, on behalf of a unanimous court, presented virtually every aspect of the commission’s recommendations for appellate court reforms to the 1979 legislature. The most notable exception was the Court’s rejection of the commission’s proposal to alter the jurisdiction of the supreme court solely by rule and by statute. The Court viewed the commission’s data as conclusive of the need for a constitutional adjustment, and it refused to deny the voters of Florida the right to refine the jurisdictional role which the constitution had created in 1956.

Statistics developed by the commission had demonstrated, for the first time, that the Court’s growing problems were not (as generally believed) attributable to the Court’s liberality in accepting cases for review, but rather to the effects of its constitutionally assigned mandatory jurisdiction and the numbers of cases being brought as a result (among others) of Foley v. Weaver Drugs, Inc., 177 So.2d 221 (Fla.1965). The commission found that “the Court has in reality exercised great restraint in accepting for review the cases over which it has any freedom of choice” and has “granted [discretionary petitions] in less than 5 percent of the cases. . . . ”

The Court proposed a constitutional amendment in April 1979, which was filed by Senator Mattox Hair, chairman of the Senate Judiciary-Civil Committee, as Senate Joint Resolution 714, for consideration at the 1979 regular session of the Florida Legislature. The Court’s discretionary jurisdiction under SJR 714 was predicated on district court certifications of decisions in conflict or of questions of great public importance, plus a “safeguard” provision authorizing the supreme court, on its own initiative, to reach down and obtain for review trial court orders and district court decisions which had substantial importance and required immediate statewide resolution.

The Judicial Council endorsed and supported SJR 714. Under pressure to accept or reject the Court’s proposal on very short notice, however, the Board of Governors of The Florida Bar, by a vote of 18 for and 12 against, failed to endorse SJR 714 by the two-thirds vote required by the Board’s bylaws. The members of the Board principally objected to SJR 714 because attorney-filed petitions for conflict certiorari review were eliminated, and because the initiative, or so-called “reach down” provision, did not appear to allow attorney-filed suggestions to the Court.

Two Senate Judiciary-Civil Committee hearings were held. Despite the Court’s expression of intent to limit severely the exercise of the safeguard or “reach down” provision, that provision was ridiculed by opponents of SJR 714 as “pluck up” power which would destroy the finality of all cases throughout the judicial system. Opposition to SJR 714 also developed from attorneys who expressed a lack of trust in district court judges, or at least in their ability or willingness to recognize, concede, and certify conflicting decisions. At the suggestion of the bill’s sponsor, SJR 714 was withdrawn from further consideration during the 1979 regular session, in order to give the Court an opportunity to discuss alternatives with opponents and critics and to seek a consensus substitute by the time of an announced special legislative session in the fall of 1979.

Notwithstanding the fate of SJR 714, the Court gained support for its position that structural change was essential to avoid a potential decline in the quality of its work and its increasing backlogs and delays. Justice Sundberg scheduled a series of meetings with a committee appointed by the president of The Florida Bar, in an effort to review the controversial aspects of the Court’s original proposal. A statement of agreed principles was eventually drafted by the bar committee and Justice Sundberg, to advise the bar’s Board of Governors and the Court of a consensus that could be reached. This included a proposal to retain discretionary review of written opinions of district courts invoked by attorney-filed petitions asserting decisional conflict. The bar committee made clear the intent to overrule the Foley decision regarding conflict, however, by declaring that only an opinion which “articulates a rule of law should qualify for discretionary review.

At the urging of attorney Tobias Simon and others who feared too severe a narrowing of the Court’s review authority, the bar committee presented, as an acceptable alternative plan, discretionary review of “decisions of a district court of appeal which substantially affect the general public interest or the proper administration of justice throughout the state” — a standard based on the American Bar Association model for constitutionally unlimited discretionary review.

After the bar’s deliberations, Justice Overton reconvened the Appellate Structure Commission to review the bar committee’s statement of principles. At their meeting on September 5, 1979, the commission disagreed with the bar committee’s preferential guidelines for discretionary review. At the urging of commission member Tobias Simon the commission opted instead for the alternative — constitutionally unlimited discretionary review — to be restricted by the Court’s adoption of rules setting guidelines for its own exercise of discretion.

On September 15, 1979, the bar committee’s principles were presented formally to the Board of Governors by the committee’s chairman, attorney Benjamin Redding of Panama City. Tobias Simon argued for the alternative, commission-approved approach of constitutionally unlimited discretionary review. The members of the Board of Governors, at the request of Justice Sundberg, agreed to support a Court proposal for constitutional change based either on the committee’s principles or the alternative.

As the Court prepared to submit to the November special legislative session a proposed substitute for SJR 714, the chairman of the American Bar Association’s Committee to Implement Standards of Judicial Administration expressed an interest in Florida’s court reform effort and chose Tallahassee as the site for the next scheduled ABA Committee meeting. The Committee’s national expertise with appellate courts focused, in accordance with the ABA standards, on constitutionally unlimited discretionary review for the supreme court. In discussions with legislative committee members, the Court, and the bar immediately preceding the legislative session, however, the ABA committee members recognized unusual features in the Florida system of which they had not previously been aware. Principal among these was the incredibly large number of appeals (35 per year) filed in death penalty cases, each requiring full record and sentence review. This compared, they noted, with only eight death cases a year in the state with the next highest volume. They also noted the special concern for constitutional conflict resolution jurisdiction, due to the diversity in geographical regions of the state. These and other unique factors, the Committee concluded, adequately explained Florida’s proposed deviation from the ABA’s model standard of constitutionally unlimited discretionary review.

When the combined Senate-House Judiciary Committees met to consider the Court’s new constitutional amendment on the opening day of the three-day November 1979 special session, only two issues in the proposal were very controversial, and these quickly became the focus of attention. The first was the Court’s suggestion to remove the constitutional restriction on the selection of supreme court justices, which required appellate district representation on the Court. The other publicly controversial issue concerned review of public utility decisions, most of which were proposed to be transferred from the supreme court for review in the district courts of appeal. The Court’s proposal — SJR 20-C — emerged from committees of both chambers of the legislature in essentially the form suggested by the Court, as derived from the bar committee’s statement of principles.

SJR 20-C, as amended, was adopted by the Senate by a vote of 38 to 2 on November 28, together with a companion bill (SB 21-C) to accelerate submission to the voters by allowing the proposed amendment to be considered at the special presidential primary election scheduled for March 11, 1980. Immediately following the vote in the Senate, both measures were certified to the House, substituted for comparable House legislation, and adopted without further amendment by a vote of 110 to 2.

During the period between November 28, 1979, and March 11,1980, active public support for SJR 20-C was undertaken by six of the seven justices of the supreme court, the governor, the attorney general of Florida, and the organized bar. Endorsements for the proposal were sought and received from the conferences of district court, circuit court, and county court judges, the League of Women Voters, the prosecuting attorneys’ association, the sheriffs’ association, and numerous newspaper and television editorial boards.

The Florida Bar and the Young Lawyers Section of The Florida Bar developed and disseminated promotional literature, and provided speakers both for civic clubs and for media discussions and debates. Promotional literature was distributed widely throughout the state, including targeted explanations of the amendment to employees of the state’s electric and telephone companies, and to residents of condominium associations.

Articles supporting passage of the amendment, most authored by justices of the Court supporting the amendment, were published in trade publications such as the journals or monthly newsletters of the Florida Bankers Association, the cattlemen’s association, the county commissioners’ association, the League of Municipalities, and the like. Television appearances and radio spots were scheduled whenever possible for the justices supporting the amendment, and for others offering public support for its adoption.

Two dominant themes of persuasion were argued by the proponents. First, the amendment would eliminate delay in the supreme court, both by removing from the Court’s docket those district court decisions which had no written opinion, and by eliminating all direct appeals to the supreme court from trial courts (except in bond validation cases and cases in which a death penalty had been imposed). Second, the amendment would reduce the cost of litigation by reducing the number of multiple appeals and by making the district courts truly final in the bulk of matters brought to Florida’s appellate courts.

Opposition to the amendment developed from a small group of Florida attorneys organized by Tobias Simon as “Floridians against Limited Access,” from one current and one former member of the supreme court, and from the public defenders’ association. The main efforts of the opponents were to develop newspaper and television editorial support against the amendment, to develop opposition in local bar associations, and to urge public rejection of the amendment through media appearances. Five dominant themes were espoused.

First, it was suggested to the media that the amendment would limit or cut off entirely their access to the supreme court for the resolution of first amendment cases. Second, local bar associations and the public were told that general access to the Court would be curtailed. Third, it was suggested that district court judges would be given the power to prevent review of their decisions by the supreme court. Fourth, it was urged that the Florida Supreme Court should be like the United States Supreme Court and the ABA’s model high tribunal, having constitutionally unlimited discretionary review of district court decisions. Lastly, the opponents inferred that the amendment was unnecessary because the Court’s caseload was in fact diminishing and the justices traveled too much.

Immediately before the March 11 vote, the 1980 amendment was endorsed editorially by almost every major, daily newspaper in the state. The official vote for passage on March 11 was 940,420 to 460,266 — a 67 percent ratio of voter approval.

The significance of the public discussion concerning the amendment is that it provides a frame of reference by which to ascertain the intent of the voters in adopting the amendment. In this case, the public debate and informational literature make abundantly clear that the voters were asked to approve an appellate court structure having these features:

1. a supreme court having constitutionally limited, as opposed to unlimited, discretionary review of intermediate appellate court decisions; and

2. finality of decisions in the district courts of appeal, with further review by the supreme court to be accepted, within the confines of its structural review, based on the statewide importance of legal issues and the relative availability of the Court’s time to resolve cases promptly.

ADKINS, Justice,

dissenting.

I dissent.

We are embarking on a course which limits our jurisdiction to matters concerning deep questions of law, while the great bulk of litigants are allowed to founder on rocks of uncertainty and trial judges steer their course over a chaotic reef as they attempt to apply “Per Curiam Affirmed” decisions. When the constitutional amendment is considered in light of historical development of the decisional law (as suggested by the majority), we find regression instead of progression. The majority admits that many will not obtain justice for our jurisdiction will be limited to resolving questions of importance to the public as distinguished from that of the parties. In Ansin v. Thurston, 101 So.2d 808, 811 (Fla.1958), cited by the majority, the Court said:

[Tjhere should be developed consistent rules for limiting issuance of the writ of certiorari to “cases involving principles the settlement of which is of importance to the public, as distinguished from that of the parties, and in cases where there is a real and embarrassing conflict of opinion and authority” between decisions.

The opinion in Ansin v. Thurston, supra was authored by Justice Drew. This interpretation lasted for seven years and then a progressive Court adopted Foley v. Weaver Drugs, Inc., 177 So.2d 221 (Fla.1965). The rule in Ansin had created problems which were resolved in Foley. In a special concurring opinion in Foley, Justice Drew said:

Many problems have arisen in the interpretation of amended Article V. But there has been no dispute that under the constitutional plan for the administration of justice at the appellate level in this State the responsibility was placed in this Court to keep the law harmonious and uniform. . . . We must assume, in the absence of something in the record to indicate a contrary view, that an affirmance of a decision of a trial court by a decision of the District Court of Appeal makes the trial court decision the decision of the District Court. So far as the trial judge is concerned and so far as the Bench and Bar who are familiar with the decision of the trial judge are concerned, such judgment is the law of that jurisdiction. I think it would result in utter chaos in the judicial system of this State with three separate District Courts, and the possibility of a fourth in the near future, if it were impossible for this Court to maintain consistency and uniformity of the law in such cases. A different rule of law could prevail in every appellate district without the possibility of correction. The history of similar courts in this country leads to the conclusion that some of such courts have proven unsatisfactory simply because of the impossibility of maintaining uniformity in the decisional law of such state.

177 So.2d at 230.

In Seaboard Air Lines Railroad Company v. Williams, 199 So.2d 469, 472 (Fla.1967), Justice Drew reiterated his views, saying:

In my concurring opinion in Foley v. Weaver Drugs, Fla.1965, 177 So.2d 221, I observed: “I think it would result in utter chaos in the judicial system of this State with three separate District Courts, and the possibility of a fourth in the near future, if it were impossible for this Court to maintain consistency and uniformity of the law in [decisions of such district courts merely affirming without opinion] * * *.” What has occurred in this case fulfills that prophecy. I, therefore, concur in the foregoing majority opinion.

Under the construction proposed by the majority we will have well-written uniform opinions, but the decisions of the five district courts of appeal will be in hopeless conflict.

The majority says there was little doubt “that the electorate was informed” and proceeds to construe a purported constitutional amendment, the terms of which were not placed on the ballot nor were they explained to the public. While discussions with some segments of the public on background and debates concerning the proposed amendment were instructive, nevertheless, what was submitted to the people for adoption was a statement on the ballot which read: “[proposing an amendment to the State Constitution to modify the jurisdiction of the Supreme Court.” In discussing the proposed amendment, one news analyst contended:

The ballot says simply that the proposal would “modify the jurisdiction of the Supreme Court,” giving the public little insight into the changes it would make in court appeals procedures.
Given the complex nature of those procedures, few voters understand the issue.

Van Gieson, Reform Sought to Ease Court’s Load, Tallahassee Democrat, March 9, 1980 at 5b, col. 1.

A pamphlet entitled “Constitutional Amendments on Florida Supreme Court Jurisdiction . . . to be Considered at March 11,1980, Election” prepared by Manning J. Dauer and Fred Goddard discussed the content of the change in the constitution as follows:

The proposed change to Article 5 does not modify the organization of the State Supreme Court. There was a proposal from the Supreme Court to permit all justices of the State Supreme Court to be from the state at large. The legislature, however, retained subsection A of Section 3 which requires at least one of the justices to be from each of the districts in which the state is divided for district courts of appeal. In sub-section B there are a number of modifications as to the jurisdiction of the Supreme Court. The attempt has been made to retain appellate jurisdiction for the most important cases involving new point of law, the death penalty, constitutional questions, affecting the state constitution or that of the U.S., affecting the construction of new statutes passed by the legislature, affecting disagreements among two or more district courts of appeal, affecting bond validation, and affecting certain cases certified for review by the district courts of appeal. Also, the jurisdiction of the Supreme Court has been changed in one case category, that is, cases from administrative agencies of the state affecting rates charged to consumers or service provided by the electric utilities and gas and phone companies.
On the other hand, many other types of cases will be cut off with the appeal being exhausted at the level of the district courts of appeal. For example, cases involving life imprisonment will now be constitutionally limited to the level of the appellate district court unless the case involves a constitution question, a new statute, or a disagreement in construction among district courts. Writs of certiorari (requests for appeal) would be much more limited. Appeals from state administrative agencies’ decisions would ordinarily stop at the district courts of appeal. The Supreme Court would retain, of course, the right to issue writs of certiorari, writs of habeas corpus, writs of prohibition, writs of injunction, and writs of mandamus when it entertained jurisdiction.
The aim of these and other changes is to reduce the caseload on the Supreme Court. The estimate given by the Court is that instead of handling 3000 cases per year, the changes will permit the reduction of the caseload from 3000 to 2000 or less. At the same time, the citizen will be guaranteed justice by having cases heard more quickly and by appeals being adequately considered at the district court level. Finally, in the categories of new issues, or in case of disagreement by lower courts, review is still available at the level of the State Supreme Court.

DAUER, Amendment to Limit Appellate Jurisdiction of the Florida State Supreme Court, 62 Pub.Ad. Clearing Service, Univ. of Fla. Civic Information Ser. 2, 4-5, (1980). (Emphasis supplied.)

The proposed amendment was conceived and composed by the justices of this Court. After the proposal was approved by the legislature, it was decided to place the proposed amendment on the ballot at a special election. See article XI, section 5(a), Florida Constitution. Hopefully, this special election would create interest in the voting populace because it was a special presidential primary election in which a popular homestead amendment giving tax relief would also be considered. The substance of the amendment to be placed on the ballot (section 101.151, Florida Statutes), was as follows: “An amendment to the State Constitution to modify the jurisdiction of the Supreme Court.” Justices of the Court and others attempted to explain the contents of the proposed amendment to the public, and there were many discussions.

While the discussions relating to the intent of the framers, referred to by the majority, were instructive as to background, nevertheless, there was only one provision submitted to the voters for adoption: “an amendment to the state constitution to modify the jurisdiction of the supreme court.” Any discussions or debate which may have taken place does not change the provision on the ballot that was approved by the voters. See In Re Advisory Opinion, 223 So.2d 35, 40 (Fla.1969). Construing this provision (as placed upon the ballot) under the ordinary rules of construction, the voters gave us absolute discretion in determining whether we had jurisdiction of a particular case.

Also, I disagree with the judgment of the majority that language and expressions found in a dissenting or concurring opinion cannot support jurisdiction. The effect of the 1980 amendment is to give us jurisdiction for review of a decision that expressly and directly conflicts with a decision of another district court of appeal. A “Per Curiam Affirmed” is a decision, but no decision can be rendered unless three judges of the district court of appeal participate. Art. V, § 4(a), Fla.Const. (1972). A concurring or dissenting opinion is used by trial judges throughout the state in determining the effect of a “Per Curiam Affirmed” decision. We should glance through the window of our ivory tower and attempt to adjust any confusion in the law which may arise by virtue of statements made in a concurring or dissenting opinion, as it is an integral part of the decision of the district courts of appeal.

There will be occasions when a “Per Cu-riam Affirmed” decision will cite another case. In some instances the cited case had admittedly been in conflict with other decisions, but, because of the failure of the parties to seek our jurisdiction, the law remained unsettled. Under the construction of the present constitutional amendment, the law will remain unsettled. A heavy case load does not justify our spawning confusion in the judicial system.

The decision of the district court of appeal conflicts with other decisions and creates instability in the law. I would accept jurisdiction.

        Jenkins v. State, 382 So.2d 83 (Fla. 4th DCA 1980).

      . This recitation is extracted from an article to be published later this year in 32 U.Fla.L.Rev., Vol. 2 (Winter 1980), entitled “Constitutional Jurisdiction of the Florida Supreme Court: 1980 Reform.” Detailed, supporting footnotes have been omitted here. For an abridged version of this article, see England, Hunter & Williams, An Analysis of the 1980 Jurisdictional Amendment, 54 Fla.B.J. 406 (1980).

      . Justice Adkins publicly opposed the amendment.

      . Former Justice B. K. Roberts publicly opposed the amendment.

      . Myers v. Hawkins, 362 So.2d 926 (Fla.1978).


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. James C. HANDLY, Jr., Respondent.
    No. 59336.
    Supreme Court of Florida.
    June 26, 1980.
    John A. Weiss, Bar Counsel, Tallahassee, for complainant.
    Charles Thomas Shad, Jacksonville, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea to violations of rule 11.02(4) of the Integration Rule of The Florida Bar and Disciplinary Rules 9-102(A) and (B) of the Code of Professional Responsibility. We approve the Petition, and Respondent, James C. Handly, Jr., is hereby suspended from the practice of law for a period of two (2) years and thereafter until he proves rehabilitation in reinstatement proceedings and until he passes the ethics portion of The Florida Bar examination, effective July 28, 1980, thereby giving Respondent thirty (30) days to close out his practice and take the necessary steps to protect his clients. Respondent is to accept no new clients from the date of this opinion.

Costs in the amount of $1,162.80 are hereby taxed against the Respondent, payable within 90 days of the Court’s opinion.

It is so ordered.

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


text:
    THE FLORIDA BAR re RULES OF SUMMARY PROCEDURE.
    No. 58987.
    Supreme Court of Florida.
    July 3, 1980.
    Proposed Amendments submitted by: L. David Shear, President, and Leonard H. Gilbert, President-elect, The Florida Bar, Tampa, and Harvey L. Goldstein, Chairman, The Summary Procedure Committee, Miami.
    Response by: William B. Blackwood, St. Petersburg, for the Committee on Civil Rules and Law Reform of the Conference of County Court Judges.
   PER CURIAM.

The following amendments to the Rules of Summary Procedure shall take effect at 12:01 a. m., January 1,1981. All conflicting rules and statutes are hereby superseded.

Rule 7.060. Process

A summons entitled Notice to Appear stating the time and place of hearing shall be served on the defendant. The summons or notice to appear shall inform the defendant, in a separate paragraph containing bold type, of his right to venue. This paragraph on venue shall read:
Right to Venue. The law gives the person or company who has sued you the right to file suit in any one of several places as listed below. However, if you have been sued in any place other than one of these places, you, as the defendant, have the right to request that the case be moved to a proper location or venue. A proper location or venue may be one of the following:
1. Where the contract was entered into;
2. If suit is on unsecured promissory note, where note is signed or where maker resides;
3. If the suit is to recover property or to foreclose a lien, where the property is located;
4. Where the event giving rise to the suit occurred;
5. Where any one or more of the defendants sued reside;
6. Any location agreed to in a contract.
If you, as a defendant, believe the plaintiff has not sued in one of these correct places, you may appear on your court date and orally request a transfer or you may file a written request for transfer, in affidavit form (sworn to under oath) with the court seven days prior to your first court date and send a copy to the plaintiff or plaintiff’s attorney, if any.
A copy of the statement of claim shall be served with said notice.

Comment

If the statutory venue, chapter 47, Florida Statutes, is changed by the legislature, this change should be reflected in the required notice.

Rule 7.170. Default; Judgment

(a) Default. If defendant does not appear at the scheduled time, the plaintiff is entitled to a default to be entered by either the judge or clerk.
(b) Final Judgment. After default is entered, the judge shall receive evidence establishing the damages and enter judgment in accordance with the evidence and the law. The judge may inquire into and prevent abuses of venue prior to entering judgment.

Comment

By the amendment to this rule, the judge is permitted to ensure by any means which he deems appropriate that venue is not being abused.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Robert M. GOLDSMITH, Respondent.
    No. 59190.
    Supreme Court of Florida.
    July 3, 1980.
    Scott K. Tozian, Asst. Staff Counsel, Miami, and Anita F. Dahlquist, Asst. Staff Counsel, Tallahassee, for complainant.
    Mark B. Slavin, North Miami Beach, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea to violations of Disciplinary Rule 1-102(A)(4) of the Code of Professional Responsibility. We approve the Petition, and hereby reprimand Respondent, Robert M. Goldsmith, for these violations. The publication of this opinion in Southern Reporter shall serve as Respondent’s public reprimand.

Costs in the amount of $191.25 are hereby taxed against the Respondent, payable within 90 days of the Court’s opinion.

It is so ordered.

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


text:
    Raymond ROMINE, Personal Representative of the Estate of Donna Romine, deceased, for the benefit of the Estate of Donna Romine, and Raymond Romine, Surviving Spouse of Donna Romine, and Raymond Romine, Individually, Petitioner, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Respondent.
    No. 55583.
    Supreme Court of Florida.
    July 3, 1980.
    Jeffrey Allen Tew of Tew & Spittler, Miami, for petitioner.
    Bette Ellen Quiat and Steven R. Berger of Carey, Dwyer, Cole, Selwood and Bernard, Miami, for respondent.
   PER CURIAM.

This cause is before us on petition for writ of certiorari to review a decision of the District Court of Appeal, Third District, Romine v. Metropolitan Dade County, 369 So.2d 957 (Fla. 3d DCA 1978). In its per curiam affirmance of the trial court’s summary judgment, the district court expressly relied on Cheney v. Dade County, 353 So.2d 623 (Fla. 3d DCA 1977), a case which this Court has recently disapproved. See Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). The cause is therefore remanded to the District Court of Appeal, Third District, for reconsideration in light of Commercial Carrier.

It is so ordered.

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


text:
    DODI PUBLISHING COMPANY, Petitioner, v. EDITORIAL AMERICA, S. A., a Florida Corporation, Respondent.
    No. 59042.
    Supreme Court of Florida.
    July 3, 1980.
    Judith L. Kreeger of Kreeger & Kreeger, Miami, for petitioner.
    Patricia M. Silver of Smith, Mandler, Smith, Werner, Jacobowitz & Fried, Miami Beach, for respondent.
   OVERTON, Justice.

This is a petition filed April 7,1980, seeking review of the following per curiam opinion of the Third District Court of Appeal:

PER CURIAM.

Affirmed. See Consolidated Electric Supply, Inc. v. Consolidated Electrical Distributors Southeast, Inc., 355 So.2d 853 (Fla. 3d DCA 1978).

The petitioner contends that the cited case, Consolidated Electric Supply, Inc. v. Consolidated Electrical Distributors Southeast, Inc., conflicts with Williamson v. Answer Phone of Jacksonville, 118 So.2d 248 (Fla. 1st DCA 1960), and therefore the instant opinion conflicts with another Florida appellate decision.

The jurisdiction of this Court in this cause is controlled by section 3(b)(3) of article V of the Constitution of the State of Florida, as amended March 11, 1980, effective April 1, 1980, which provides that the Supreme Court: “May review any decision of a district court of appeal .that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law.” A full discussion of the history and purpose of section 3 of article V, as amended, is contained in Jenkins v. State, No. 59,087, 385 So.2d 1356 (Fla. June 26, 1980).

We reject the assertion that we should reexamine a case cited in a per curiam decision to determine if the contents of that cited case now conflict with other appellate decisions. The issue to be decided from a petition for conflict review is whether there is express and direct conflict in the decision of the district court before us for review, not whether there is conflict in a prior written opinion which is now cited for authority.

The petition is dismissed.

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

ADKINS, J., dissents for reasons expressed in Jenkins.


text:
    Edward THURSTON, Petitioner, v. STATE of Florida, Respondent.
    No. 59062.
    Supreme Court of Florida.
    July 3, 1980.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, Miami, for petitioner.
    Jim Smith, Atty. Gen., and Susan Minor, Asst. Atty. Gen., Miami, for respondent.
   PER CURIAM.

This petition seeking review of a per cu-riam opinion of the Third District Court of Appeal, 380 So.2d 456, is dismissed. See Dodi Publishing Co. v. Editorial America, S. A., 385 So.2d 1369 (Fla.1980).

It is so ordered.

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

ADKINS, J., dissents for reasons expressed in Jenkins v. State, No. 59,087, 385 So.2d 1356 (Fla. June 26,1980).


text:
    Antonio F. PENA, and The Tony Pena Corporation, a Florida Corporation, Petitioners, v. TAMPA FEDERAL SAVINGS AND LOAN ASSOCIATION, a federal savings and loan association, Respondent.
    No. 59153.
    Supreme Court of Florida.
    July 3, 1980.
    Antonio F. Pena, in pro. per.
    Gregory E. Mierzwinski of Taub & Williams, Tampa, for respondent.
   PER CURIAM.

This is a petition filed April 30, 1980, seeking review of the following order of the Second District Court of Appeal:

The attorneys for appellee having filed a motion to dismiss the above-styled interlocutory appeal, upon consideration, it is
ORDERED that said motion is granted and the above-styled interlocutory appeal is hereby dismissed. See Southeastern Associates, Inc. v. First Georgia Bank, 362 So.2d 967 (1st DCA 1978).

The petitioners contend this order conflicts with other Florida appellate decisions and with decisions of the Supreme Court itself.

We find no direct conflict expressly appears in the written order of the district court of appeal as required by section 3(b)(3) of article V of the Constitution of the State of Florida, as amended March 11, 1980, effective April 1,1980, which provides that the Supreme Court: “May review any decision of a district court of appeal . that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law." See Dodi Publishing Co. v. Editorial America, S. A., 385 So.2d 1369 (Fla.1980). A full discussion of the history and purpose of section 3 of article V, as amended, is contained in Jenkins v. State, 385 So.2d 1356 (Fla.1980).

The petition is dismissed.

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

ADKINS, J., dissents for reasons expressed in Jenkins.


text:
    ROBLES DEL MAR, INC. et al., Petitioners, v. TOWN OF INDIAN RIVER SHORES, etc. et al., Respondents.
    No. 59046.
    Supreme Court of Florida.
    July 3, 1980.
    James T. Vocelle, of Vocelle, Gallagher & Block, Vero Beach, for petitioners.
    Chester E. Clem of Jackson & Clem, Vero Beach, for respondents.
   PER CURIAM.

This is a petition for review of the following per curiam opinion of the Fourth District Court of Appeal:

AFFIRMED. See Epifano v. Town of Indian River Shores, 379 So.2d 966.

AFFIRMED.

The cited Epifano decision, which was filed on the same day as the instant per curiam opinion, is a final decision of the district court. We dismiss this petition in accordance with Dodi Publishing Co. v. Editorial America, S. A., 385 So.2d 1369 (Fla.1980).

It is so ordered.

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

ADKINS, J., dissents for reasons expressed in Jenkins v. State, 385 So.2d 1356 (Fla.1980).


author: ENGLAND, Justice. ALDERMAN, Justice,

text:
    Gregory PAUL, Petitioner, v. STATE of Florida, Respondent.
    No. 56140.
    Supreme Court of Florida.
    July 3, 1980.

      Louis G. Carres, Asst. Public Defender, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen., and Richard W. Prospect and Doris E. Jenkins, Asst. Attys. Gen., Tallahassee, for respondent.
   ENGLAND, Justice.

We here review a decision of the First District Court of Appeal construing Rule 3.151 of the Florida Rules of Criminal Procedure, which governs the consolidation of related offenses. The district court upheld the trial court’s order allowing the pretrial consolidation of three alleged sexual offenses, the first of which occurred approximately one month before the others. Paul seeks review of that decision on the ground that the alleged offenses, though similar in nature, were not “related” within the contemplation of Rule 3.151 and the relevant case law.

In effect, the district court’s interpretation of Rule 3.151 permits the consolidation of similar offenses which are unrelated in terms of time or sequence. We reverse, and adopt as our opinion Judge Smith’s well reasoned dissent in the case below insofar as it relates to Rule 3.151 and the consolidation of related offenses. We make no comment on that portion of Judge Smith’s dissent which discusses the so-called “ Williams Rule” Williams v. State, 110 So.2d 654 (Fla.1959) of admissibility.

The decision of the First District Court of Appeal is quashed and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

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

ADKINS, J., dissents.

ALDERMAN, J., dissents with an opin-' ion.

ALDERMAN, Justice,

dissenting.

Since the district court's decision in the present case does not conflict with any decision of a district court of appeal or this Court, we are without jurisdiction to consider the merits of this cause. The district court addressed the issue of whether the trial court had abused its discretion in granting the State’s motion for consolidation in light of the particular facts of this case. It properly did not consider whether it would have reached a different result if it were initially deciding the question. Applying the correct principles of law, the district court decided that the trial court did not abuse its discretion. By accepting jurisdiction and quashing the decision of the district court, the majority is merely substituting its judgment for that of the trial court and the district court of appeal.

Because we are without jurisdiction in this matter, I would deny certiorari.

      . Paul v. State, 365 So.2d 1063 (Fla. 1st DCA 1979).

      . See id. at 1066.


author: ADKINS, Justice. ENGLAND, Justice,

text:
    STATE of Florida, Petitioner, v. Theron BLACK, Respondent.
    No. 54644.
    Supreme Court of Florida.
    July 10, 1980.

      Jim Smith, Atty. Gen., and C. Marie King, Asst. Atty. Gen., Tampa, for petitioner.
    Jack O. Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bar-tow, for respondent.
   ADKINS, Justice.

This cause is before us on petition for writ of certiorari supported by certificate of the Second District Court of Appeal that its decision reported in Black v. State, 360 So.2d 142 (Fla.2d DCA 1978) involves a question of great public interest. Art. V, § 3(b)(3), Fla.Const.

The question was certified as follows:

Is a grand jury indictment insufficient to sustain a conviction when it fails to specify the place where the crime allegedly occurred, even though this allegation is subsequently supplied by a bill of particulars, the defendant is not hindered in the preparation or presentation of his defense, and the situs of- the crime is proven at trial?

360 So.2d at 142-43. The district court followed the precedent of this Court established in Rimes v. State, 101 Fla. 1322, 133 So. 550 (1931) answering in the affirmative; but urged us to reevaluate the principle enunciated in Rimes in light of changing circumstances in the law of criminal procedure. Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

Petitioner, defendant below, was indicted for first degree murder. The caption of the indictment named the circuit court for Her-nando County, but the body of the indictment did not contain a statement as to the place of the alleged crime. The state subsequently filed a statement of particulars giving an exact address in Hernando County. The state demand for notice of alibi repeated the address specified in the bill of particulars. Finally, the evidence adduced at trial established venue in Hernando County. The trial court denied defendant’s motion to dismiss the indictment as vague and indefinite both pretrial and at the close of the state’s case. The Second District Court of Appeal found the indictment fatally defective and reversed the conviction.

There are two constitutional requirements of an indictment which are pertinent to the resolution of this case. First, an indictment must apprise a person of the charges in a manner which enables the accused to prepare a defense; second, the allegations must be specific enough to protect the accused from twice being placed in jeopardy for the same offense. U. S. v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92 (1953); State v. Smith, 240 So.2d 807 (Fla.1970). The common law insured these constitutional guarantees in part by requiring great precision and certainty in allegations as to place within the body of the accusatory writ. Ledbetter v. U. S., 170 U.S. 606, 18 S.Ct. 774, 42 L.Ed. 1162 (1898); Groner v. State, 6 Fla. 39 (1855). Adherence to the technicalities of common law pleading has yielded in modern practice to the general principle that formal, non-prejudicial defects will be disregarded. This philosophy underlies our Rule 3.140(oo), Florida Rules of Criminal Procedure:

Defects and Variances. No indictment or information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information or of misjoinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment or information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.

See also Rule 3.020 Fla.R.Crim.P.

The state argues that the district court correctly observed that the defendant was not prejudiced in the preparation of his defense because the bill of particulars and demand for notice of alibi stated an exact time, date and place. Also, that there is no threat of double jeopardy since the trial transcript would be available upon any such plea and the evidence adduced clearly established both venue and the murder victim’s identity. 360 So.2d at 144. In addition, the state relies on two decisions which allegedly represent a relaxation of the criteria for sufficient indictments. Neither of these dealt with an indictment wholly lacking in an essential allegation; but with allegations which were inexact or nonspecific. State v. Barnett, 344 So.2d 863 (Fla.2d DCA 1977) (place of offense should not be alleged in the disjunctive), disapproved on other grounds, McNamara v. State, 357 So.2d 410 (Fla.1978); Sparks v. State, 273 So.2d 74 (Fla.1973) (use of “on or about” language with reference to time of offense held sufficient).

It is true that the availability of a statement of particulars and Florida’s liberal discovery rules allow an accused more leeway to prepare a defense than did the common law ‘four corners of the indictment’ rule; but it is equally certain that a statement of particulars cannot cure fundamental defects in an indictment. 360 So.2d at 144. Venue is an essential element in any criminal charge. Art. I, § 16, Fla. Const. As such, venue has long been held a necessary part of an indictment which must be sustained by affirmative proof at trial. Rimes v. State, supra; McKinnie v. State, 44 Fla. 143, 32 So. 786 (1902); Robinson v. State, 20 Fla. 804 (1884); Cook v. State, 20 Fla. 802 (1884); Evans v. State, 17 Fla. 192 (1879). This well established principle is reflected in rule 3.140(d)(3), Florida Rules of Criminal Procedure:

Time and Place. Each count of an indictment or information upon which the defendant is to be tried shall contain allegations stating as definitely as possible the time and place of the commission of the offense charged in the act or transaction or on two or more acts or transactions connected together, provided the court in which the indictment or information is filed has jurisdiction to try all of the offenses charged.

Allegations as to the place of the alleged offense also fix the jurisdiction of the grand jury and court. See 41 Am. Jur.2d Indictments & Informations §§ 122, 124 (1968); Annot. 59 A.L.R. 2d 906 § 4 (1956). Proper jurisdictional allegations are as essential in an accusatory writ as are those relating to the material elements of the crime. Pope v. State, 268 So.2d 173 (Fla.2d DCA 1972); Conner v. State, 29 Fla. 455, 10 So. 891 (1892).

In view of the secrecy which surrounds grand jury proceedings, indictments, especially, should facially indicate jurisdiction. State v. Ostergard, 343 So.2d 874 (Fla.2d DCA 1977), writ discharged 360 So.2d 414, 414 (Fla.1978) (Adkins, J., concurring specially).

The indictment in the case at bar did not even allege that the “grand jurors of Florida in Hernando County” presented that the defendant “in the county and state aforesaid” committed an offense. McElvene v. State, 105 Fla. 639, 142 So. 216 (1932). This is not an appropriate instance to encourage liberal amendment of imprecise allegations as long as the defendant is not prejudiced. Lackos v. State, 339 So.2d 217 (Fla.1976). The indictment completely failed to allege venue; in this it was fundamentally defective and void. We affirm the holding in Rimes v. State that the “defect is one of substance and not of form.” 133 So.2d at 551. The question certified to us is hereby answered in the affirmative, and the decision of the district court of appeal is approved.

It is so ordered.

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

ENGLAND, J., concurs specially with an opinion, with which OVERTON, J., concurs.

ENGLAND, Justice,

specially concurring.

The Court’s decision today is correctly decided under existing law, but this case suggests to me the need to reevaluate Florida’s rules governing the sufficiency of indictments.

The reasons for requiring a precise allegation of venue in a charging document are, as the Court notes, to enable the accused to prepare a defense, to preclude double jeopardy for the same offense, and to fix the jurisdiction of the grand jury and the court. Both the district court and this Court have concluded that the defendant Black was not prejudiced in the least by the venue deficiency in this case, as the place of the crime was early supplied by a bill of particulars and then later proven at trial. There is in the majority’s analysis no justification for a continuation of the rule in circumstances such as these, other than that it has always been the rule. That justification, I submit, is simply not good enough if alternatives are available, and there are. Either this Court or the legislature could modify or abrogate the strict common law rule requiring that venue be alleged in an indictment, under one of two possible approaches.

One technique would be the adoption of a more relaxed standard governing allegations of venue in an indictment. Our present rules, embodying the spirit of the common law, require that the place of the offense be alleged as definitely as possible in each count of an indictment. In contrast, some states by statute dispense with the necessity of alleging venue, so long as it is proven at trial that the offense was committed in the county in which the indictment was preferred. Other states reach the goal by statutes which deem sufficient merely placing the name of the county and court in the caption or margin of the indictment. The indictment in the present case would have been sufficient under either of these less formal standards.

A second technique is to allow the prosecutor or trial judge to amend an indictment in certain instances to include allegations of venue. The traditional rule in Florida, of course, precludes such amendments, as only a grand jury can amend an indictment with regard to matters of substance such as venue. Pickeron v. State, 94 Fla. 268, 113 So. 707 (1927); Perez v. State, 371 So.2d 714 (Fla.2d DCA 1979); Russell v. State, 349 So.2d 1224 (Fla.2d DCA 1977). This rule is embodied implicitly in Rule 3.140(j) of the Florida Rules of Criminal Procedure, which provides for the amendment of informa-tions but makes no mention of indictments. While our rule is in accordance with that of the federal courts, a growing number of states have enacted statutes or court rules permitting the amendment of indictments as to matters of form and substance. Some states have even provided by law specifically for amendments regarding venue. Frequently these statutes explicitly prohibit amendments which prejudice substantial rights of the defendant or which attempt to charge an additional or different offense.

Either of the above general approaches offers a reasonable and logical alternative to the dismissal of an indictment and the reversal of a conviction when, as in this proceeding, there is no danger of actual prejudice to the defendant because of the indictment’s defect. Admittedly, these alternatives are not available in the instant ease, but a rule change by this Court for future cases is not an insurmountable barrier. The rules committee of The Florida Bar should consider these matters, with a wary eye on article I, section 15 of the Florida Constitution which provides that “[n]o person shall be tried for capital crime without presentment or indictment by a grand jury . .” Decisions in other states with like constitutional guarantees have usually concluded that this provision precludes the amendment of indictments as to matters of substance, although not necessarily as to venue.

At a time when the grand jury system is the subject of mounting criticism from scholars and practitioners, our adherence to strict and technical rules derived from the common law in order to dismiss an otherwise valid indictment is subject to serious question. We should consider modernizing our rules and precedents (e. g., Rimes), if constitutionally allowable, to preclude dismissals in future cases such as this one.

OVERTON, J., concurs.

      . Black v. State, 360 So.2d 142, 144 (Fla.2d DCA 1978).

      . Fla.R.Crim.P. 3.140(d)(3). Arguably, our decision conflicts with the requirement of Rule 3.140(o) that
      [n]o indictment or information shall be dismissed ... for any cause whatsoever, . . unless the court shall be of the opinion that the indictment or information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.
      The state’s failure to allege venue obviously falls within the broad language of this provision, especially since none of the factors which warrant dismissal are present. Decisions interpreting the statutory predecessors of Rule 3.140(o), however, have held that in spite of the rule’s dictates, an indictment still cannot be upheld where it omits an indispensable allegation. Walker v. State, 119 Fla. 240, 161 So. 278 (1935); Bradley v. State, 208 So.2d 140 (Fla.3d DCA 1968). But cf. Brown v. State, 135 Fla. 30, 184 So. 518 (1938) (Court relied on predecessor of Rule 3.140(o) in approving trial court’s denial of defendant’s motion to quash indictment for failure to allege venue and other facts).

      . See, e. g., Ala.Code tit. 15, § 8-31 (1975); Tenn.Code Ann. § 40-1809 (1975). Similarly, Arkansas’ statute provides that venue shall be considered to be within the jurisdiction of the court in which the grand jury was impaneled. ' Ark.Stat.Ann. § 43-1016 (1977).

      . See, e. g., Mass.Ann.Laws ch. 277, § 20 (Michie/Law Co-op 1968); Mo.Rev.Stat. § 545.-160 (1978).

      . The rule’s silence is apparently intentional. “[Rule 3.140(j)j contains no provision for an amendment of an indictment since, presumably, a grand jury may not amend an indictment which it has returned and which is pending, although it may return another indictment and the first indictment may be disposed of by a nolle prosequi.” 1968 Committee Note, Fla.R. Crim.P. 3.140. It is also significant that Rule 3.140(j) is patterned after § 111-5 of the 1963 Illinois Code of Criminal Procedure, which provided for the amendment of indictments as well as informations. Id.

      . See, e. g., Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); Ex parte Bain, 121 U.S. 1 (1887); United States v. Musgrave, 483 F.2d 327 (5th Cir.), cert. denied, 414 U.S. 1023, 94 S.Ct. 447, 38 L.Ed.2d 314 (1973).

      . See, e. g., Cal. Penal Code § 1009 (Deering 1972); Ind.Code Ann. § 35-3.1-1-5 (Burns 1979); Iowa R.Cr.P. 4; Ky.R.Cr.P. 6.16; La. Code Crim.Pro.Ann. art. 487 (West Supp.1979). See also Annot., 17 A.L.R.3d 1181 (1968) (characterizing these statutes and rules as “the modern trend”).

      . See, e. g., N.Y.Crim.Proc.Law § 200.70 (Consol. 1979).

      . See Annot., 17 A.L.R.3d 1181 (1968) and authorities cited therein.

      . See, e. g., State v. Grothmann, 13 N.J. 90, 98 A.2d 291 (1953); State v. McGraw, 140 W.Va. 547, 85 S.E.2d 849 (1955). The underlying rationale is that the constitutional provision places the substantive process of returning an indictment within the grand jury’s exclusive province. 13 N.J. at 94, 98 A.2d at 293. Amendments as to matters of form have uniformly been held to involve no constitutional infirmity. See Annot., 17 A.L.R.3d 1181 (1968) and authorities cited therein.

      . Compare Breitling v. State, 124 Ohio St. 39, 176 N.E. 674 (1931), with State v. Chamberlain, 6 Nev. 257 (1871), followed in Ex parte Alexander, 80 Nev. 354, 393 P.2d 615 (1964).

      . See, e. g., Duff & Harrison, The Grand Jury In Illinois: To Slaughter A Sacred Cow, 1973 U.Ill.L.F. 635; Note, The Florida Grand Jury: Abolition Or Reform?, 5 Fla.St.U.L.Rev. 829 (1977). See generally M. Frankel & G. Naftalis, Grand Jury: An Institution on Trial (1977).


author: MOORE, Judge.

text:
    Pearl Dorothea RELYEA, Individually and as Administratrix of the Estate of Donna J. Fink, deceased, Appellants, v. STATE of Florida; The Board of Regents of the State of Florida; the Chancellor of the State University System of Florida and Pacific Indemnity Insurance Company, Appellees. George A. MAHNKE and Arlanda Mahnke, Individually and as Administratrix of the Estate of Marlene Mahnke, deceased, Appellants, v. STATE of Florida et al., Appellees.
    Nos. 76-1619, 76-1620.
    District Court of Appeal of Florida, Fourth District.
    July 23, 1980.

      Donald F. Geffner, Miami, Carl W. Taylor, Fort Lauderdale, and Harry A. Wilson and John M. Choplin, II of Wilson & Tabor, Indianapolis, Ind., for appellants.
    Michael B. Davis of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellees.
    Robert L. Shevin, Atty. Gen., Tallahassee and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee, State of Florida; Winifred L. Wentworth, Gen. Counsel, for State Board of Education, Tallahassee.
   MOORE, Judge.

This case involves a tragic incident which occurred on the campus of Florida Atlantic University (FAU) on May 14, 1970. The plaintiffs, as parents and administrators of their respective children’s estates, appeal from adverse final judgments entered subsequent to a jury trial in two consolidated wrongful death actions. Prior to trial the court denied motions for judgment on the pleadings, and during trial, reserved ruling on motions for directed verdict at the close of all of the evidence. The jury was unable to reach a verdict, after which the court declared a mistrial and immediately informed counsel of the pending motions for directed verdict, requesting counsel to set the motions for hearing. Counsel were also requested to submit appropriate “judgment orders” in connection with the motions. Renewed motions for judgment on the pleadings and for directed verdict were then granted and final judgments were entered accordingly for the defendants-appel-lees. We affirm.

Appellants initially contend that the court erred in entertaining the post-trial motions because they were not filed timely as required by Fla.R.Civ.P. 1.480(b). For the reasons expressed below we reject this contention.

Appellants next contend that the appel-lees had a duty to exercise reasonable care to protect the deceaseds from foreseeable criminal conduct by third persons, and that that duty was breached by the failure to provide adequate security. Thus, it is argued that the court erred in granting the motions for judgment on the pleadings because their complaints stated a cause of action sounding in negligence. They also contend that the directed verdicts were erroneous because their proof established issues of fact for the jury. The appellees argue that, not only did the complaint fail to state a cause of action and the proof at trial fail to support a finding of duty or a breach thereof, but that they are immune from suit under the doctrine of sovereign immunity. We accept the appellees’ position in each respect.

In essentially identical complaints the appellants alleged that on May 14, 1970, Donna Fink and Marlene Mahnke were seniors at FAU, enrolled in a course which was taught from 4:30 P.M. to 7:20 P.M. in a building located in a remote, outlying area on the northeast corner of the campus, approximately three quarters of a mile from the main complex of buildings. Both young ladies drove in Miss Fink’s car to the building and parked near the building entrance. After class they proceeded to the car where they were assaulted by three men who abducted them, drove them to a secluded area, and murdered them. The complaint further alleged that the appellees (except for Pacific Indemnity Insurance Company) had a mandatory, non-discretionary duty to provide reasonable security for all persons lawfully on the campus, particularly for persons enrolled in classes at the University. Specific allegations of negligence attributed to the defendants were:

(1) By failing to provide an adequate number of security patrols along the roadways, land areas, and buildings on the campus of Florida Atlantic University, and in the parking areas in the vicinity of Building T-6 on said campus;
(2) By failing to provide security guards and security guard stations or gates to control the entrance and egress roadways to said Florida Atlantic University;
(3) By failing to have parking attendants at the remote facility of Building T-6;
(4) By failing to have adequate lighting in the area of Building T-6;
(5) By scheduling late afternoon and evening classes in this building remote from the central complex of Florida Atlantic University, and enrolling students, particularly female students, to attend such classes in a remote area, without adequate police or other security protection for said students;
(6) By failing to provide adequate protection for persons attending classes at said remote building;
(7) By failing to take such other measures which were necessary or reasonable to protect and safeguard the persons and lives of persons lawfully upon the campus, attending said classes; and
(8) By failing to provide a reasonably safe place upon said campus in which the decedents could attend classes and proceed to and from said classes.

i.

We first consider whether the court erred in considering the motions for judgment on the pleadings and for directed verdicts. Fla.R.Civ.P. 1.140(c) provides:

Motion for judgment on the pleadings. After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings.

Here, the jury’s inability to reach a verdict resulted in a mistrial. After a mistrial is declared the action remains pending in the same respect as though the trial had never occurred. Thus, the renewed motion was made within such time as not to delay the trial, and therefore, it was made in compliance with the Rule. Even though the court had previously denied the motion it retained the authority to modify or correct its interlocutory ruling.

The motion for directed verdict presents a more difficult situation. Fla.R. Civ.P. 1.480(b) provides that if a verdict is not returned, a party who has previously moved for a directed verdict at the close of all of the evidence may move for judgment in accordance with that motion within ten days after the jury has been discharged. The post-discharge motion, not having been filed within ten days, ordinarily could not be considered by the trial court. However, under the unusual circumstances of this case we find that the motion was properly considered. This is so because: (1) the trial court specifically reserved ruling on the ap-pellees’ motions for directed verdict at the close of all of the evidence; (2) immediately after the jury was discharged the court informed counsel that the reserved motions were pending and requested that they be set for hearing; (3) the court specifically requested that appropriate judgment orders in connection with the motions be submitted; and (4) all parties overtly or impliedly agreed to this procedure. Consequently, we hold that the court correctly considered the renewed motions for directed verdicts. See, 6551 Collins Avenue Corporation v. Millen, 104 So.2d 337 (Fla.1958); Dent v. Casale, 358 So.2d 1101 (Fla. 3rd DCA 1978).

We turn now to the issue of sovereign immunity. Absent statutory authorization, the State, its counties, agencies and instrumentalities, are immune from tort liability. Florida Atlantic University, the Board of Regents and the Chancellor of the State University System are agencies and instrumentalities of the State of Florida. In addition to the allegations previously noted, the appellants alleged that the State of Florida had waived sovereign immunity in this case pursuant to Section 768.15, Florida Statutes (1969) which provides:

(1) WAIVER OF IMMUNITY—The State, for itself and its counties, agencies and instrumentalities, waives immunity for liability for the torts of officers, employees or servants committed in the State. The State and its counties, agencies, and instrumentalities shall be liable in the same manner as a private individual, but no action may be brought under this section if the claim:
(a) arises out of the performance or the failure to perform a discretionary function ; (emphasis supplied).

Although this statute was subsequently repealed, appellants’ cause of action, if any, accrued during its effective dates and is preserved by Section 768.151, Florida Statutes (1971).

Thus, pursuant to § 768.15 sovereign immunity is not waived when the alleged negligence consists of the performance or failure to perform discretionary functions inherent in government planning or policy making. Therefore, we must determine whether the acts of negligence as alleged in appellants’ complaint fall within the purview of discretionary, governmental functions. In defining discretionary functions, the Supreme Court of Florida “commended” utilization of the test enunciated in Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965). The four-pronged test is:

(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program or objective?
(2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective?
(3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved?
(4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?

See, Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1019 (Fla.1979).

Applying the test to the facts in this case leads us to the conclusion that each question must be answered in the affirmative. We therefore hold that the allegations of negligence fall within the definition of a discretionary function. Whether to provide security guards, parking attendants, security gates, and the numbers thereof, are clearly discretionary decisions, partially based upon budgetary limitations controlled by the Legislature. See, Turner v. United States, 473 F.Supp. 317 (D.D.C.1979). In many ways, a state university campus resembles a small municipality. In addition to performing its educational function, it provides various other services to its students and the general public. Further, the campuses uniformly encompass rather large areas, and the facilities are open to the public as well as the students. Consequently, the campus security force is in many ways analogous to a municipal police force. As such, the decisions of the campus security force regarding its modus operandi, i. e. where and how to deploy its available manpower, the numbers of security personnel per shift, the use of telecommunications equipment, and the extent of coordination with local law enforcement agencies are discretionary or planning functions. See, Ellmer v. City of St. Petersburg, 378 So.2d 825 (Fla. 2nd DCA 1979); Wong v. City of Miami, 237 So.2d 132 (Fla.1970).

The State and its agencies enjoyed sovereign immunity from suit under the allegations of the complaint and the trial court was correct in granting the motions for judgment on the pleadings in favor of the State and its agencies. We hasten to note that we are not concerned here with a tort committed during the implementation of the security objective, such as the accidental discharge of a weapon by security personnel, or the negligent failure of personnel to perform as instructed or intended.

III.

Although we have decided that sovereign immunity from liability applies in this case, this result does not inure to the benefit of the appellee, Pacific Indemnity Insurance Company, the insurer of the Board of Regents. Section 240.191(2), Florida Statutes (1969) provides:

[T]he insurer shall not be entitled to the benefit of the defense of governmental immunity of the board of regents in any suit brought against the insured. .

The immunity from liability of the Board is waived to the extent of the insurance coverage it carries. Nevertheless, we find that the trial court properly entered judgment in the insurance company’s favor because no cause of action was alleged or proved by the appellants.

As a basic principle of law, a property owner has no duty to protect one on his premises from criminal attack by a third person. 62 Am.Jur.2d, Premises Liability, § 200 (1972). Even though one’s negligence may be a cause in fact of another’s loss, he will not be liable if an independent, intervening and unforeseeable criminal act also causes the loss. See, Nicholas v. Miami Burglar Alarm Co., 339 So.2d 175, 177 (Fla.1976). If, however, the criminal attack is reasonably foreseeable, a duty may arise between a landowner and his invitee. But it must be borne in mind that a landowner is not an insurer of the safety of his invitees and is not required to take precautions against a sudden attack from a third person which he has no reason to anticipate. See, Totten v. More Oakland Residential House, Inc., 63 Cal.App.3d 538, 134 Cal.Rptr. 29 (1976).

In order to impose a duty upon a landowner to protect an invitee from criminal acts of a third person a plaintiff, invitee, must allege and prove that the landowner had actual or constructive knowledge of prior, similar criminal acts committed upon invitees. The landowner is not bound to anticipate criminal activities of third persons where, as here, the wrongdoers were complete strangers to the landowner and to the victims, and where the incident occurred precipitously. Totten, supra. See also, Shipes v. Piggly-Wiggly St. Andrews, Inc., 238 S.E.2d 167 (S.C.1977). Appellants simply failed to allege or prove that any prior assaults upon persons had been committed in the area of the abduction and murder, or for that matter, anywhere on the campus. In fact, the proof showed there had not been one serious crime against a person since the school was founded in 1963. The reported incidents involved minor larcenies from automobiles and school buildings, hit and run complaints for minor automobile damage, and miscellaneous incidents such as malicious mischief. These facts do not give rise to the foreseeability of violent assaults which, in turn, may give rise to a duty to protect. Accordingly, there being no duty to protect from the type of conduct which occurred here, the trial court correctly entered judgment for the insurance company.

The final judgments are AFFIRMED.

LETTS, C. J., and MIETTE K. BURN-STEIN, Associate Judge, concur.