text:
    George Harold PAYNE, Jr., alias v. STATE of Alabama.
    6 Div. 943.
    Court of Criminal Appeals of Alabama.
    Dec. 28, 1982.

      L. Dan Turberville, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

George Payne was indicted for burglary in the third degree in violation of § 13A-7-7, Code of Alabama 1975. The appellant was found “guilty as charged in the indictment” and the trial judge sentenced him to ten years’ imprisonment in the penitentiary, but specified that the appellant serve one year in prison and five years on probation.

On September 7,1977, the Rollins Protective Service installed a burglar alarm system in the home of Charles Crawford Williams, Jr. The system is one that activates when a door or window is opened, and after a time delay, the police are alerted.

Larry Wyatt, an expert on alarm systems and a master service technician for Rollins testified that only a person familiar with a Rollins system would know how to disengage the Williams’ alarm system.

The appellant began working for Rollins on January 23, 1978, and was employed there until September, 1980.

Mr. Williams testified that when the system needed servicing, he would request that the appellant do the work. However, according to records supplied by Rollins, the appellant made only two of eighteen service calls to the Williams’ home between the time the system was installed and one month prior to the burglary in question. The appellant testified he serviced the Williams’ system approximately five times during this period.

Mr. Williams testified the appellant installed another alarm system inside a closet where Williams’ antique gun collection was kept (valued between $20,000 to $25,000). The appellant denied installing the system.

On April 29,1981, Mr. Williams turned on the alarm system in his home, and left for work around noon on that day. A neighbor, Cathy Yates, drove by the Williams’ home and saw a man whom she identified as the appellant standing in the driveway.

Mr. and Mrs. Williams arrived home around 5:00 p.m. on that day and discovered their home had been burglarized. The door to the closet where the guns were kept had been smashed and was wide open. All of the guns and certain other valuables kept in the closet were gone. However, two of the guns were found in the hallway and in the bedroom. A small Sony television was also missing.

Mr. Williams discovered someone had cut the telephone line, thereby rendering the alarm system inoperative. The back door lock had been opened with a crow bar. The front panel of the alarm control box was unlocked and the power module had been removed and placed on top of the unit. Only Rollins personnel had keys to unlock the panel to the control box.

The appellant and his wife were arrested on May 20,1981, charged with the burglary of the Williams’ home and transported to the Mountain Brook city jail in separate patrol cars. Officer Keely read the appellant his Miranda rights in the patrol car soon after his arrest. Keely testified he did not ask the appellant any questions in the patrol car and the appellant did not say anything. However, the appellant testified he told Keely he did not want to talk.

Upon their arrival at the jail, the appellant was taken to a cell and the officers questioned his wife about the burglary. Around 5:00 p.m., Officer Keely brought the appellant into the office and again read him his rights in the presence of Mrs. Payne and Officer Issics. The appellant refused to sign a waiver. All charges against Mrs. Payne were dropped two weeks later. The appellant denied he was read his rights at this time.

The appellant asked for his attorney and Keely gave him the telephone book. He did not reach the attorney at this time but later, the attorney did call the appellant and the appellant talked with him. The appellant then asked to speak to his wife, alone, which he was allowed to do. The two were placed in cells next to each other.

At approximately 7:00 p.m., Officer Keely received a message that the appellant wanted to talk to him. He brought the appellant into the office and the appellant told Keely he wanted to talk. Keely did not re-read the appellant his Miranda rights since he had done this an hour and a half before.

Keely testified the appellant said, “Suppose that I could get the guns back, will you get a statement signed by a District Attorney saying you won’t prosecute the case?” When Keely answered “no”, the appellant said, “Well, I couldn’t get them back anyway.” (R. 188-190). Keely asked the appellant if anyone else was involved, and the appellant told him he wouldn’t tell him. (R. 192). The appellant’s statement was not written down and Keely did not remember it until the day of the trial.

Officer Issics corroborated Keely’s testimony concerning the details of this conversation, and that the appellant initiated the meeting. The appellant claimed the officers brought him in and offered him a deal.

The appellant was moved to the Jefferson County jail a week later. Keely and Issics went to see the appellant at that jail, read him his Miranda rights and questioned him again. No statements were obtained during this visit.

I

The appellant contends he did not knowingly, intelligently and voluntarily waive his right to remain silent and therefore, reversible error was committed when the trial court admitted into evidence statements made by the appellant after he had requested to talk to an attorney.

We must agree with the appellant that once an accused asks to remain silent or requests an attorney, all questioning of that accused must cease at that point. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). However, “an accused ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him unless the accused himself initiates further communication, exchanges or conversations with the police.” (Emphasis added). Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

If an accused initiates a meeting with the police at which he gives a statement, then “nothing in Fifth and Fourteenth Amendments would prohibit the police from merely listening to his voluntary, volunteered statements and using them against him at the trial.” Edwards v. Arizona, supra.

The United States Supreme Court stated in Edwards v. Arizona, supra:

“Absent such interrogation, there would have been no infringement of the right ... invoked and there would be no occasion to determine whether there had been a valid waiver.”

There was sufficient testimony elicited at the trial to allow this court to reasonably conclude that it was the appellant, not the police, who initiated the meeting at which the appellant made the incriminating statement.

Even though the U.S. Supreme Court does not require this court to determine if there has been a valid waiver (because there was not an interrogation), we will examine this issue.

“A waiver is ordinarily an intentional relinquishment of a known right or privilege. The determination of whether there has been an intelligent waiver ... must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”

Edwards v. Arizona, supra. Even though the appellant was not read his rights prior to the beginning of this conversation on the night of his arrest, he had been fully apprised of those rights on two previous occasions, one of which occurred only an hour and a half before this particular conversation.

This court has held that once an accused has been informed of his Miranda rights, they do not need to be repeated at each successive interview. Love v. State, 372 So.2d 414 (Ala.Cr.App.1979), Gibson v. State, 347 So.2d 576 (Ala.Cr.App.1977).

Looking at the fact that the appellant requested the meeting with the police, had been read his rights on two prior occasions that day and knew what his rights were because he invoked his right to remain silent and his right to consult counsel, we believe, after examining the totality of the circumstances, that the appellant did knowingly, intelligently and voluntarily waive his constitutional rights to remain silent and have counsel present during this interrogation. Therefore, the appellant’s statement was properly admitted into evidence.

II

The appellant claims the State’s evidence was insufficient to support a conviction.

In Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1979), this court held:

“In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude.” (Citations omitted).

To sustain a conviction, an accused’s guilt need not be established to the “exclusion of every possibility of innocence.” Hayes v. State, 395 So.2d 127 (Ala.1981).

“The State’s evidence should not be stricken out, as insufficient to support a conviction, merely because, when disconnected it is weak and inconclusive, if, when combined, it may be sufficient to satisfy the jury of an accused’s guilt.”

Whether there is sufficient circumstantial evidence to exclude every other reasonable hypothesis but that of guilt is a question for the jury. Cumbo v. State, supra. This court must not substitute its judgment for that of the jury. Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978); Cumbo v. State, supra. Our duty is to “determine if legal evidence was presented from which the jury, by fair inference could have found the defendant guilty beyond a reasonable doubt.” Citations omitted. Thomas v. State, supra.

We have examined the record and believe there was sufficient evidence, presented by the State, to allow the jury to conclude beyond a reasonable doubt, that the appellant was guilty of the crime as charged.

Therefore, the judgment of the trial court is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur except DeCARLO, J., not sitting, (daughter prosecuted case in Circuit Court).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. William R. MERWIN, Respondent.
    No. 61636.
    Supreme Court of Florida.
    April 15, 1982.
    Dale E. Krout, Jr., Bar Counsel, Tallahassee, for complainant.
    William J. Sheppard, Jacksonville, for respondent.
   PER CURIAM.

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

Costs in the amount of $511.85 are hereby taxed against the Respondent.

It is so ordered.

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


text:
    Frank SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 57743.
    Supreme Court of Florida.
    Oct. 28, 1982.
    Rehearing Denied Jan. 27, 1983.

      Philip J. Padovano, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This cause is before the Court on appeal from a capital felony conviction for which a sentence of death was imposed. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

Appellant Frank Smith was convicted of robbery, kidnapping, sexual battery, and first-degree murder. The evidence showed that late in the evening on December 12, 1978, appellant and two accomplices went to a convenience store in Wakulla County and robbed store clerk Sheila Porter of money belonging to her employer. Then they abducted Sheila Porter from the store and took her into neighboring Leon County. There they took her to a motel room where all three men committed sexual battery upon her. Afterwards they took her to a wooded area. Accomplice Victor Hall testified at trial that he waited in the car while appellant and Johnny Copeland walked Sheila Porter into the woods. Then he heard three gunshots, after which appellant and Copeland returned to the car without Sheila. Her body was found two days later with three bullet wounds in the back of her head.

Appellant was initially indicted in Wakul-la County for first-degree felony murder, robbery, kidnapping, and sexual battery. After his motion for change of venue was granted, trial commenced in Jefferson County but ended in a mistrial. Thereafter the prosecution was again taken up in Franklin County, where a second grand jury issued an indictment charging appellant with premeditated murder, robbery, kidnapping, and sexual battery. After trial the jury found appellant guilty of first-degree murder, robbery, kidnapping, and sexual battery. In accordance with the jury’s recommendation, the trial judge imposed a sentence of death.

Appellant raises several questions regarding the validity of his conviction. He argues that the filing of the second indictment was improper; that the court erred in admitting into evidence some of his pretrial statements; that the court erred in admitting evidence of collateral crimes; and that the court erred in denying his requested instruction on the defense of withdrawal. Appellant also challenges as improper the imposition of the sentence of death. We find no reversible error and affirm the convictions and the sentence of death.

Appellant argues that the indictment was defective and should have been dismissed, on two grounds. He argues that the grand jury had no authority to make a substantive change in the pending indictment and he argues that the new indictment was filed so immediately prior to the commencement of the trial as to prejudice him in the preparation of his defense. Initially, the new indictment was captioned “Amended Indictment.” Appellant moved to dismiss on the ground that a grand jury may not amend an indictment. Thereafter, the state moved to have the word “amended” stricken from the caption, asserting that it was a clerical error. The trial court denied appellant’s motion and granted the state’s. The court determined that the second grand jury had independently examined the evidence and had filed a new, rather than an amended, indictment. At the beginning of the trial the state filed a notice of nolle prosequi with regard to the first indictment. Appellant is correct in his argument that a grand jury has no authority to amend an indictment to charge an additional or different offense. See Fla.R.Crim.P. 3.140(j) and Committee Note (1968); State v. Black, 385 So.2d 1372, 1375-77 (Fla.1980) (England, J., concurring). However, a grand jury may file a completely new indictment regarding the same alleged criminal actions, even though a prior indictment is pending. See Committee Note, Fla.R.Crim.P. 3.140(j) (1968); Eldridge v. State, 27 Fla. 162, 9 So. 448 (1891).

So, a grand jury may charge a defendant with an additional or different offense by filing a second indictment. Although it may appear that the result is the same, the process is significantly different. Before filing the second indictment, the grand jury must independently evaluate the case. This requirement ensures that the grand jury itself finds the filing of additional or different charges appropriate. Since there is nothing in the record which refutes the trial court’s finding that the second grand jury independently reviewed the evidence before returning the second indictment, there is no basis for us to disturb the court’s ruling.

Appellant argues that the second indictment was untimely and prejudicial. We note that it was filed twenty days before the trial. Thus appellant had twenty days to prepare his defense against the additional charge of premeditated murder. This amount of preparation time was not insufficient considering the fact that the question of premeditation was already at issue in connection with the issues of intent to withdraw and intent to murder to avoid apprehension and prosecution.

Appellant’s next two points on appeal concern the admissibility of pretrial statements he made to law enforcement officers before and after his arrest. Appellant argues that the statements were inadmissible because they were made after he was illegally detained, because he was denied his right to consult with counsel, and because the statements were not freely and voluntarily made.

Appellant invokes certain constitutional rules of evidence. Statements that are the product of illegal detention are inadmissible. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). A suspect has the right to consult with legal counsel before being questioned. Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). Pretrial incriminating statements are only admissible if they are freely and voluntarily made. The facts as shown by the record, however, do not support any of appellant’s contentions regarding the admissibility of his statements.

In the afternoon of December 13th, after Sheila Porter had been reported missing, police stopped appellant in Tallahassee and questioned him. Investigators had been told by a citizen that appellant owned a car matching the description of a car mentioned on the television news. Appellant allowed officers to photograph his car and told them he had been at his grandmother’s house in Tallahassee the previous night.

The officers learned from another officer that the car in their photograph had been seen parked outside a Tallahassee motel the night before. Because of this discrepancy with appellant’s story, an officer went to see appellant again that evening. The officer asked appellant to accompany him to the police station for questioning, but advised him he was not obliged to go. Appellant agreed to go. At the police station appellant told investigators he had spent the night alone at the motel after being stood up by a girlfriend. He denied having been in Wakulla County the night before. After the interview appellant declined a ride home and waited several hours for his friend Johnny Copeland who was also there being questioned. He finally was taken home by police officers at about 5:00 a.m., December 14.

Later that day, after gaining information indicating that appellant’s car had been seen parked at the convenience store near the time of Sheila Porter’s disappearance, police sought a warrant for appellant’s arrest. He was arrested at 7:00 p.m., December 14, and again agreed to talk to investigators. He told them that he went with Johnny Copeland to the convenience store, but that he was asleep in the back seat of the car. He said that when he awoke there was a white girl huddled down in the front seat, and he told Copeland to get her out of his car. So, Copeland took the girl and put her in his own car. Appellant said that the next time he saw Copeland, Copeland said that he had done something to the girl and described the area where he left her. Appellant then showed police to the general area where the body was subsequently discovered.

On the morning of December 15, after helping police search for the body, appellant talked to an attorney, but did not reach a formal agreement for representation. At his first appearance later that day, appellant told the judge that he did not have an attorney but was planning to get one. Three days later appellant told his jailer that he wanted to make a statement. Police advised him of his rights and he signed a waiver form. He confessed to participating in the robbery and kidnapping. He said he was present when Johnny Copeland and Victor Hall raped Sheila Porter, but he denied participating in the rape. He said he was present when Copeland shot Sheila, and said he tried to talk him out of doing so. This account was inconsistent with the trial testimony of Victor Hall, who said that Smith did participate in the sexual battery. Hall also testified that when appellant and Copeland took the victim into the woods and three shots were fired, it was appellant who was holding the gun when they came back.

The state introduced all of these statements into evidence. Before each questioning session, appellant was advised of his rights in accordance with the Miranda form. Appellant argues however that his pre-arrest statements were inadmissible because his detention was illegal. The detention was illegal, appellant contends, because the police did not have probable cause for an arrest. The argument is without merit. Before his arrest pursuant to warrant, appellant was not detained and was not required to answer questions. He voluntarily agreed to be interviewed.

Appellant argues that his post-arrest statements were inadmissible because they were made without benefit of legal counsel. This argument also is without merit. The record shows that the statements were freely and voluntarily made after appellant had been advised of his constitutional rights. At no time did appellant ask to see a lawyer or state that he was represented by a lawyer. The evidence as a whole shows that appellant, in making the statements, was not coerced in any manner.

Appellant also argues that his inconsistent exculpatory pre-trial statements were improperly admitted to impeach other pre-trial statements. He contends that since he was not a witness his credibility was not in issue and such impeachment evidence was therefore irrelevant. We disagree. The credibility of appellant’s ultimate confession was, of course, a material issue for the jury to decide. His earlier exculpatory statements, and the sequence of events showing how his story changed through the course of several interviews, were certainly relevant to this issue. Furthermore, the earlier statements and the context in which they were given were also relevant to show that appellant had attempted to avoid detection by lying to the police. See Cortes v. State, 135 Fla. 589, 185 So. 323 (1938); 1 Wharton’s Criminal Evidence, § 215 (13th ed. 1972). As such they were an indication of guilt, the ultimate material issue.

Since the statements were thus relevant, they were to be deemed admissible unless excluded by some specific rule of law. § 90.402, Fla.Stat. (1979). Contrary to the claim of appellant, the statements were not inadmissible as hearsay, because they were made by the defendant and were therefore excepted from the hearsay rule. Id. § 90.803(18)(a). Furthermore, the earlier exculpatory statements were offered not to prove the truth of the matters stated, but rather to show the context of appellant’s confession, so they were not even hearsay at all. Id. § 90.801(1)(c).

Appellant contends that the court erred in admitting evidence of collateral crimes. Over appellant’s objection, Victor Hall was allowed to testify that on the day of the robbery appellant stole some gasoline and a .22 caliber rifle. Appellant argues that the evidence was not relevant to show anything other than propensity to commit crime since there was no evidence of a relation between these matters and the crimes charged. The evidence showed that the crimes were committed with a .22 caliber pistol, not a rifle.

The evidence of the theft of the gasoline was relevant and therefore admissible, but the evidence of the theft of the rifle was irrelevant and therefore inadmissible. The theft of the gasoline was part of the res gestae of the criminal episode. See Smith v. State, 365 So.2d 704 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979); Ashley v. State, 265 So.2d 685 (Fla.1972). The evidence was connected in that it showed how appellant and his accomplices were able to get around to commit the crimes and it showed motivation in that it suggested their need for money.

The theft of the rifle is not so connected with the crimes charged. That it occurred the same night is not enough to bring it within the res gestae. Although the evidence was irrelevant, appellant has failed to show how he was prejudiced. The testimony concerning the theft of the rifle was insignificant compared with the whole of the evidence of appellant’s guilt of the crime charged. Since appellant has failed to show how the jury’s decision could have been influenced by this one irrelevant statement, we find the error to be harmless. See State v. Wadsworth, 210 So.2d 4 (Fla.1968).

Finally, appellant argues that his conviction should be reversed and a new trial granted because the court refused his requested jury instruction on the defense of withdrawal. He asserts that the evidence to support this defense was found in his confession in which he admitted participating in the robbery and kidnapping but maintained that he tried to talk Copeland out of killing the victim.

This contention is without merit. Victor Hall testified that after the multiple rape, he, Copeland, and appellant took Sheila Porter by automobile to a wooded area and that Copeland and appellant took the girl into the woods. Then, Hall said, he heard three gunshots, following which Copeland and appellant returned to the car. Hall said that at this point appellant was holding the pistol.

There are two theories upon which the jury might have found appellant guilty of first-degree murder based upon all the evidence, including Half's testimony. Since there was no direct evidence establishing whether it was Copeland or appellant who actually wielded the murder weapon, the jury could have simply concluded that one of them fired the fatal shots and that the other aided and abetted the murder. § 777.011, Fla.Stat. (1977). Under this theory, assuming that only one person did the actual killing, the other could be found guilty of premeditated murder if the evidence was sufficient to show that he aided, abetted, counseled, hired, or otherwise procured the commission of the offense of premeditated murder, and it is not necessary that the jury actually determine which man did the killing and which one aided and abetted. E.g., Sons v. State, 99 So.2d 888 (Fla. 2d DCA), cert. denied, 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed.2d 1160 (1958).

The other theory upon which the jury could have found appellant guilty of first-degree murder is the felony murder doctrine. Under this theory appellant, as a joint participant in the crime of kidnapping, may be held liable for the acts of his co-felon and is therefore equally guilty, with the actual killer, of the murder which was a natural outgrowth and consequence of the kidnapping. Under this theory the jury would not have needed to conclude that appellant had the requisite intent to be an aider and abettor.

Under either of these theories of liability, the defense of withdrawal may be established if the defendant is able to make the requisite showing. To establish the common-law defense of withdrawal from the crime of premeditated murder, a defendant must show that he abandoned and renounced his intention to kill the victim and that he clearly communicated his renunciation to his accomplices in sufficient time for them to consider abandoning the criminal plan. 1 C. Torcia, Wharton’s Criminal Law § 37 (14th ed. 1978); 40 C.J.S. Homicide § 9. For a defendant whose liability is predicated upon the felony murder theory, the required showing is the same and the defense is available even after the underlying felony or felonies have been completed. Again the defendant would have to show renunciation of the impending murder and communication of his renunciation to his co-felons in sufficient time to allow them to consider refraining from the homicide.

Appellant contends that he was entitled to an instruction on withdrawal because his last pretrial statement, which was entered into evidence by way of police testimony, said that Copeland was the killer and that appellant tried to talk Copeland out of killing the girl. The testimony of Hall was that Copeland and Smith both agreed to the killing. Hall’s testimony made no mention of any communication of withdrawal by appellant during the automobile trip from the motel to the murder scene. Defense counsel surely could have attempted to bring out such facts on cross-examination if Hall had heard any such renunciation.

As was pointed out above, the evidence upon which appellant relies in arguing that he was entitled to the instruction is his final pretrial statement. It is worthy of note that appellant moved to suppress his pretrial statements and that the denial of his motion to suppress is made the subject of one of his points on this appeal.

Appellant correctly points out that a defendant is entitled to have the jury instructed on the rules of law applicable to his theory of defense if there is any evidence to support such instructions. Motley v. State, 155 Fla. 545, 20 So.2d 798 (1945); Laythe v. State, 330 So.2d 113 (Fla. 3d DCA), cert. denied, 339 So.2d 1172 (Fla.1976); Stiglitz v. State, 270 So.2d 410 (Fla. 4th DCA 1972); Canada v. State, 139 So.2d 753 (Fla. 2d DCA 1962). If there is any evidence of withdrawal, an instruction should be given. The trial judge should not weigh the evidence for the purpose of determining whether the instruction is appropriate. Appellant’s pretrial statement, however, testified to by a state witness, seems hardly sufficient to raise the issue of withdrawal in view of the above-discussed facts. Without formulating any general harmless error rule regarding improper denial of instructions on defenses, we hold that here the error, if any, was harmless. No new trial is required.

We come now to consideration of the imposition of a sentence of death upon appellant. After the hearing of the sentencing-phase evidence and argument, the jury recommended death. The court found six statutory aggravating circumstances and one statutory mitigating circumstance. The court found that appellant had twice previously been convicted of felonies involving the use or threat of violence; that the capital felony was committed in the course of a kidnapping and in the course of flight after the commission of rape; that the capital felony was committed to prevent detection and arrest; that the capital felony was committed for pecuniary gain; that the capital felony was especially heinous, atrocious, or cruel; and that the capital felony was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. The court found that appellant’s youthful age of nineteen at the time of the crime was a mitigating circumstance.

Appellant argues that the death penalty may not be imposed where the capital felony conviction is based on the vicarious liability of felony murder. This argument is based on the concept of proportionality under the cruel and unusual punishment clause of the Eighth Amendment. Appellant relies on Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), where Justice White, concurring, said “that it violates the Eighth Amendment to impose the penalty of death without a finding that the defendant possessed a purpose to cause the death of the victim.” 438 U.S. at 624, 98 S.Ct. at 2983. Since then the United States Supreme Court has held in a felony murder case that a sentence of death may not be imposed in the absence of proof that the defendant killed, attempted to kill, intended to kill, contemplated that life would be taken, or anticipated that lethal force would or might be used. Enmund v. Florida, - U.S. -, 102 S.Ct. 3368, 3372, 3379, 73 L.Ed.2d 1140 (1982). It is unnecessary, however, for us to try to apply that holding in this case, since here there was sufficient evidence from which the jury could have found appellant guilty of premeditated murder.

Appellant argues that the court’s finding that the capital felony was committed for the purpose of avoiding arrest is not supported by evidence. This argument has no merit since Victor Hall testified that on two separate occasions appellant and Johnny Copeland talked about killing Sheila Porter so that she would not be able to testify against them.

Appellant argues that the court erred by giving improper double consideration to a single feature of the crime in finding the murder was committed in the course of a statutorily enumerated felony and for pecuniary gain. This argument overlooks the fact that the former aggravating circumstance was based on kidnapping and sexual battery, leaving the factor of robbery to support the finding of the latter circumstance without any overlap.

Appellant argues that the finding of heinousness was improper. This argument is refuted by the proven facts of the abduction, confinement, sexual abuse, and ultimate execution-style killing of the victim. See Knight v. State, 338 So.2d 201 (Fla.1976).

Finally, appellant challenges the court’s application of the factor that the capital felony was comitted in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. § 921.141(5)(i), Fla.Stat. (1979). This statutory aggravating circumstance was added to the capital felony sentencing statute by the 1979 legislature. Ch. 79-353, Laws of Fla. Thus it was enacted after the commission of the offense in this case. Appellant argues that this new provision is unconstitutionally vague and invalid in that it does not require the proof of any additional fact not already required to establish the offense itself.

We reject the contention that paragraph (5)(i) is void for vagueness. This new aggravating circumstance was enacted to limit the use of premeditation as an aggravating circumstance in cases of first-degree murder. Premeditation is only to be relied upon as an aggravating factor when the capital felony was committed in a cold and calculated manner without any pretense of moral or legal justification. See Combs v. State, 403 So.2d 418 (Fla.1981), cert. denied, - U.S. -, 102 S.Ct. 2258, 72 L.Ed.2d 862 (1982). Paragraph (5)(i) may be applied to murders committed before its effective date. Id. We conclude that there was an ample basis for the judge to follow the jury’s recommendation of a sentence of death.

The appellant’s convictions for robbery with a firearm, kidnapping, sexual battery, and murder in the first degree are affirmed. The sentence of death is also affirmed.

It is so ordered.

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


author: PER CURIAM. ALDERMAN, Chief Justice,

text:
    THE FLORIDA BAR, Complainant, v. Bernard Paul PETTIE, Jr., Respondent.
    No. 61256.
    Supreme Court of Florida.
    Nov. 4, 1982.
    Rehearing Denied Jan. 24, 1983.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and David G. McGunegle, Bar Counsel, Orlando, for The Florida Bar, complainant.
    Robert E. Morris of Morris & Rosen, Tampa, for respondent.
   PER CURIAM.

This attorney-discipline proceeding is before the Court on the complaint of The Florida Bar. We have before us the report of a referee and respondent’s petition for review thereof. This cause is an original proceeding pursuant to the Court’s jurisdiction over the discipline of attorneys. Art. V, § 15, Fla. Const.; Fla. Bar Integr. Rule, art. XI, Rule 11.09.

The Bar’s complaint against attorney Pettie charged him with violating Rule 11.-02(3)(a) of Article XI of the Integration Rule of The Florida Bar and Disciplinary Rules 1-102(A)(3), 1-102(A)(4) and 1-102(A)(5) of The Florida Bar’s Code of Professional Responsibility in that he was involved in a criminal conspiracy to import approximately 15,000 pounds of cannabis.

The referee made the following findings and recommendations:

“Findings of Fact as to Each Item of Misconduct of which the Respondent is charged: The respondent admitted the essential allegations of the complaint filed by The Florida Bar. The bulk of the testimony received went to matters in mitigation. After considering all of the pleadings and evidence before me, pertinent portions of which are commented on below, I find as follows:
1. Respondent, BERNARD PAUL PET-TIE, JR., is 42 years of age, received his law degree from the University of North Carolina, Chapel Hill, in 1964, and became a member of The Florida Bar in 1965.
2. Respondent at all times relevant to these proceedings was a member of The Florida Bar and was subject to the jurisdiction of the disciplinary rules of The Supreme Court of Florida. Although the respondent’s prior address of record as of September 1980 was Indian River County, Florida, the activities involved herein occurred in Broward, Hardee and Manatee Counties, Florida, and by agreement the matter was heard in Polk County, Florida.
3. Beginning at an indefinite time in 1979, respondent slowly became involved in a criminal conspiracy to import approximately 15,000 pounds of cannabis. The conspiracy was headed by Theodore John DeLi-si. During this period of time, respondent knowingly assisted the smuggling conspiracy by permitting meetings to occur in the conference room of his law office in Pompano Beach, Broward County, Florida.
4. Respondent, at the request of the conspirators, formed a corporation called Flying Fish of Indiana, Inc., a Florida Corporation, in September, 1979. The purpose of the corporation was to hold title to a DC-4 aircraft which was to be used in smuggling cannabis into the country, and also possibly for legitimate activities. The respondent knew of the proposed illegal use of the aircraft.
5. Respondent purchased a residence on behalf of the conspirators near Bradenton in Manatee County, Florida, upon the instructions of Mr. DeLisi and associates, understanding that the residence was to be used as a storage facility for cannabis that was ultimately imported on January 22, 1980.
6. On instructions from Mr. DeLisi and associates, the respondent knowingly aided the conspiracy by assisting in the purchase of a 1974 Ford truck, which vehicle was later seized by law enforcement officers on January 22,1980, at Gardner, Hardee County, Florida, because of its use in a smuggling operation.
7. Respondent, in his Answer, denies the titling of a 1979 Ford Econoline Van in December 1979, knowing that it would be used in the smuggling operation. It should be noted that this is the only denial of any matter of substance by the respondent.
8. The respondent knowingly assisted the smuggling conspiracy by introducing Mr. DeLisi to a certain party, so that the DeLisi interests could arrange to land the aircraft on that party’s property on January 22, 1980.
9. Respondent testified that he telephoned an Assistant State Attorney in Har-dee County prior to January 22, 1980, but was unable to speak with the attorney.
10. On January 22, 1980, the landing of the smuggling aircraft occurred and was discovered in Gardner, Hardee County, and seized by law enforcement officials. Fifteen thousand pounds of cannabis were in the aircraft.
11. It is not clear to what degree respondent profited from his actions.
12. Approximately one week after January 22, 1980, respondent voluntarily requested a meeting with investigators of the Florida Department of Law Enforcement.
13. Roger Alcott is Field Counsel for the Florida Department of Law Enforcement and, by special appointment, special assistant to the State Attorney of the Tenth Judicial Circuit, and also in the Twelfth Judicial Circuit and the Nineteenth Judicial Circuit, and previously in the Third Judicial Circuit and also in the U.S. Northern District in the State of Florida. His duties involve the prosecution of major narcotics cases in the State of Florida. William Wolfe and Charles Guthrie are experienced officers of the Florida Department of Law Enforcement. These three gentlemen and the respondent all testified as to the substantial assistance rendered to the Florida Department of Law Enforcement by the respondent.
14. Subsequent to the initial meeting and continuously up to the present, respondent has assisted the Florida Department of Law Enforcement in the identification, arrest and prosecution of the various conspirators involved. The assistance of the respondent has allowed the authorities to arrest approximately thirty subjects, many of whom have been convicted. Some cases are still pending, and other subjects are still at large. Large amounts of real and personal property have been seized and forfeiture proceedings are pending.
15. The respondent’s cooperation has been complete, and has involved personal danger to himself. At one point respondent wore a “body bug” at the request of the Department.
16. The cooperation was such that the Department feels that there is a threat to respondent’s personal safety, since some of the defendants are still at large. The Department has information from several sources indicating that a “contract” exists on Mr. Pettie’s life and as a result of that he has been relocated outside the State of Florida and his whereabouts are not known to anyone outside the Florida Department of Law Enforcement.
17. From the beginning of February 1980 until approximately the end of that year, one of the Florida Department of Law Enforcement agents was in almost daily contact with Mr. Pettie concerning the case. Mr. Pettie’s assistance was a material aid to the investigation, and in the opinion of Mr. Alcott the investigation could not have succeeded to the extent that it did, particularly as to the higher-ups in the organization, without the efforts of Mr. Pettie.
18. Essentially Mr. Pettie, other than to wind down his law practice and conclude matters, has not practiced law since his initial contact with the Florida Department of Law Enforcement.
19. No evidence was presented as to any prior problems with the respondent’s ethical conduct. Respondent testified that, other than some routine matters which do not appear to be of significance, he has never had any grievance matters with The Bar.
20. Mr. Pettie presented various scrapbooks and recommendations which portrayed him as a busy and well-respected lawyer in his community.
21. The relationship with the DeLisi family began as legitimate representation of the group in civil matters not relating to any criminal conduct. Over a period of time it slowly moved into a situation in which the respondent should have known what he was doing, but chose to wear blinders. It then developed into the knowing assistance detailed above.
Recommendation as to whether or not the respondent should be found guilty: I recommend that the respondent be found guilty and specifically that he be found guilty of the following violations of his Oath as an attorney and Integration Rules:
Integration Rule 11.02(3)(a) on moral conduct or illegal conduct;
Disciplinary Rule 1-102(A)(3) Engaging in illegal conduct involving moral turpitude;
Disciplinary Rule 1-102(A)(4) Engaging in conduct involving dishonesty;
Disciplinary Rule 1-102(A)(5) Engaging in conduct that is prejudicial to the administration of justice.
Recommendation as to disciplinary measures to be applied: I recommend that the respondent be disbarred from the practice of law in Florida.
The facts of this case are relatively clear and undisputed. An appropriate recommendation is not, however, an easy matter. Absent the cooperation of Mr. Pettie with law enforcement authorities, his direct and knowing participation in serious felonies warrants disbarment.
It is undisputed that he rendered material and substantial assistance to law enforcement. He suffered financial loss and the substantial loss of his law practice as a result and incurred personal danger to himself. It was possible for law enforcement to penetrate the higher levels of a drug smuggling operation because of his cooperation.
The Florida Bar has recommended that he be suspended for a period of one year with a separate rehabilitation proceeding after that period of time. The Bar recommendation takes into account his assistance to law enforcement officers, feeling that this assistance justifies such a recommendation. Presumably his assistancé will be appropriately rewarded by the Florida Department of Law Enforcement by the nature of the prosecution or the lack of prosecution.
Should these matters be considered in mitigation in a proceeding of this nature, and, if so, to what extent? It would appear that attorneys have been of great assistance to drug traffickers in this State. Many have performed legal and lawful services. Many have gone a step further and have performed lawful services that they probably suspected were aiding a felony but chose not to open their eyes. Some lawyers have apparently then stepped over the line. Mr. Alcott stated the problem quite well in his testimony. Obviously law enforcement would favor a lighter discipline in order to encourage other attorneys who might be similarly situated to come forward.
I have considered the criteria set forth in The Florida Bar v. Pahules, 233 So.2d 130 (1970). I have concluded that, although it is appropriate and traditional that law enforcement might reward Mr. Pettie to whatever degree they see fit by refraining from prosecuting him criminally, there is a need to deter other attorneys who may be tempted to become involved in similar violations. I have therefore concluded that, commendable as his efforts on behalf of law enforcement have been, they cannot justify mitigation of disciplinary measures. Although his involvement may have occurred slowly and over a period of time, Mr. Pettie deliberately and knowingly engaged in criminal conduct.”

Respondent raises five issues for our consideration but only two merit discussion. First, respondent argues that the referee’s recommended findings that he violated Disciplinary Rules 1-102(A)(4) and 1-102(A)(5) are not supported by the evidence. Disciplinary Rule 1-102(A)(4) prohibits, among other things, conduct involving dishonesty. The Bar claims that engaging in illegal conduct is ipso facto the same as engaging in dishonest conduct. We disagree. “Dishonesty” is defined as “disposition to lie, cheat or defraud; untrustworthiness; lack of integrity.” Black’s Law Dictionary 421 (5th ed. 1979). “Illegal,” on the other hand, is defined as “against or not authorized by law.” Id. at 673. The two concepts are not co-extensive. Much that is dishonest is not illegal; much that is illegal is not dishonest. The latter applies under the facts of the instant case. While it can certainly be said that respondent’s activities in the criminal conspiracy were illegal, there was nothing in his participation in the five overt acts with which he was charged that approached lying, cheating, defrauding, or untrustwor-thiness. We hold that the referee was in error in his finding of guilt of violation of Disciplinary Rule 1-102(A)(4).

As for Disciplinary Rule 1-102(A)(5), conduct prejudicial to the administration of justice, The Bar likewise argues that engaging in illegal conduct by an officer of the court is ipso facto conduct prejudicial to the administration of justice. The Bar, however, has failed to cite any case law or other authority to substantiate its position and bald assertions on its part are not persuasive. One definition of “obstructing the administration of justice” defines the term as “hindering witnesses from appearing, assaulting process server [sic], influencing jurors, obstructing court orders or criminal investigations.” Black’s at 972. The term is not so broad as to include all conduct which is illegal but rather those activities, for example, more directly associated with “bribery of jurors, subornation of perjury, misrepresentations to a court or any other conduct which undermines the legitimacy of the judicial processes.” Polk v. State Bar of Texas, 374 F.Supp. 784, 788 (N.D.Tex.1974). The recent case of an attorney theatrically appearing in the courtroom on a stretcher dressed in bedclothing is a prime example of conduct prejudicial to the administration of justice. See The Florida Bar v. Burns, 392 So.2d 1325 (Fla.1981). The participation of the respondent in the five overt acts is not. The referee was also in error in his finding of guilt of violation of Disciplinary Rule 1-102(A)(5).

The referee properly found respondent guilty of violating The Florida Bar’s Code of Professional Responsibility Disciplinary Rule 1-102(A)(3) and Rule 11.02(3)(a) of Article XI of the Integration Rule. Respondent asserts as his second major issue that the recommended discipline of disbarment is inappropriate, given the facts of the present case. We reluctantly agree. This Court has not hesitated in the past to impose the ultimate penalty when an attorney has transgressed the law. The Florida Bar v. Beasley, 351 So.2d 959 (Fla.1977). Respondent’s admitted participation in the five illegal acts is sufficient to sustain disbarment. However, as we have said in The Florida Bar v. Pincket, 398 So.2d 802 (Fla.1981), “we believe that it is appropriate in determining the discipline to be imposed to take into consideration circumstances surrounding the incident, including cooperation and restitution.” Id. at 803. While judgments must be fair to society and severe enough to deter others prone to like violations, they must also be “fair to the respondent, being sufficient to punish a breach of ethics and at the same time encourage reformation and rehabilitation.” The Florida Bar v. Pahules, 233 So.2d 130, 132 (Fla.1970). The present case is clearly atypical in that respondent voluntarily initiated contact with law enforcement authorities, cooperated with those authorities, suffered severe economic loss, closed his law practice, admitted his wrong, and risked his life to help further the investigation. The referee concluded that while respondent’s activities on behalf of law enforcement were commendable, they could not justify mitigation. We hold otherwise and properly take the above-mentioned actions into account in our determination of a just discipline. We conclude that, given the unique facts of the present case, a suspension of one year is appropriate.

The respondent, Bernard Paul Pettie, Jr., is suspended from the practice of law in this state for one year from the date of this opinion. Costs in the amount of $621.40 are hereby taxed against him.

It is so ordered.

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

ALDERMAN, C.J., concurs in part and dissents in part with an opinion.

ALDERMAN, Chief Justice,

concurring in part, dissenting in part.

While I concur that the peculiar circumstances of this case which are carefully outlined by the majority opinion justify a discipline of less than disbarment, I do not agree that a one-year suspension is sufficient. Under normal circumstances, misconduct such as respondent’s would call for disbarment, and, in cases which have involved similar misconduct where these mitigating circumstances did not exist, we have not hesitated to impose disbarment. In spite of respondent’s mitigating acts of voluntarily initiating contact with law enforcement authorities, cooperating with them, admitting his wrongs, and risking his life to help further investigation, I believe a one-year suspension is too lenient. I would suspend respondent from the practice of law in this state for three years.

      . Respondent does not contest the claim that he has engaged in conduct which is “illegal conduct involving moral turpitude,” D.R. 1-102(A)(3), and conduct “contrary to honesty, justice, or good morals,” Rule 11.02(3)(a) of the Integration Rule.


author: ALDERMAN, Chief Justice. BOYD, Justice, OVERTON, Justice,

text:
    STATE of Florida, Appellant, v. OSCEOLA COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY, Appellee.
    No. 61205.
    Supreme Court of Florida.
    Dec. 16, 1982.
    Robert Eagan, State Atty., and Jeffords B. Miller, Asst. State Atty., Ninth Judicial Circuit, Orlando, for appellant.
    Talbot D’Alemberte, G. Keith Quinney, Jr. and Thomas R. Julin of Steel, Hector & Davis, Miami, Special Litigation Counsel, Murray W. Overstreet of Overstreet and Ritch, Kissimmee, and R. William Ide, III and Frank A. Lightmas, Jr. of Kutak, Rock & Huie, Bond Counsel, Atlanta, Ga., for appellee.
    Griffith F. Pitcher, James J. Cooney, Roy S. Goldfinger and J. Michael Nifong of Squire, Sanders & Dempsey, Miami, for Florida Chamber of Commerce, Inc., amicus curiae.
   ALDERMAN, Chief Justice.

We review the final judgment of the Circuit Court for Osceola County validating industrial development revenue bonds for the construction of a public lodging facility by C.B. Day Realty of Florida, Inc., in Osceola County in connection with a “tourism facility.” The trial court, in validating the bonds, held that chapter 159, parts II and III, as amended by chapter 80-287, Laws of Florida (1980), is a valid and constitutional statute and constitutes sufficient and valid authority for the issuance of these bonds and held that the project serves a paramount public purpose. We agree and affirm the judgment of the trial court validating these bonds.

Pursuant to chapter 159, part II, Florida Statutes (1981), entitled Florida Industrial Development Financing Act, the Osceola County Industrial Development Authority adopted a resolution providing for the issuance of tax exempt industrial development revenue bonds not to exceed $10 million to finance the construction of a public lodging facility on U.S. Highway 192 to provide service in connection with the planned Walt Disney World Reedy Creek Resort and Little England Theme Park. The authority then filed its complaint seeking validation of these bonds.

The trial court found that, in accordance with the provisions of the Florida Industrial Development Financing Act, Osceola County Industrial Development Authority had determined:

A. The Project is appropriate to the needs and circumstances of, and shall make a significant contribution to the growth of Osceola County, shall provide or preserve gainful employment, and shall serve a public purpose by advancing the economic prosperity, the public health and the general welfare of the State of Florida and its people.
B. C.B. Day Realty of Florida, Inc. (the “Company”) is financially responsible and the Company, together with Cecil B. Day Companies, Inc. (the “Guarantors”), are fully capable and willing to fulfill their obligations, including the obligation to make installment purchase payments in the amounts and at the times required, to operate, maintain and repair the Project at their own expense and to serve the purpose of the Act and the other responsibilities to be imposed, due consideration having been given to the net worth of the Company and the Guarantors, earning trends, coverage of all fixed charges, the nature of the motel industry, its inherent stability, and other factors determinative of the capability of the Company, financially and otherwise, to fulfill its obligations consistently with the purposes of the Act.
C. Osceola County is able to cope satisfactorily with the impact of the Project and will be able to provide, or cause to be provided when needed, the public facilities, including utilities and services, that will be necessary for the construction, operation, repair and maintenance of the Project and on account of any increases in population or other circumstances resulting therefrom.
D. Adequate provision is made for the operation, repair and maintenance of the Project at the expense of the Company and for the payment of the principal of, premium, if any, and interest on the Bonds when and as the same become due and payable, and for the payment by the Company of all other costs incurred in connection with the financing, construction and administration of the Project which are not paid out of the proceeds from the sale of the Bonds or otherwise.
E.The costs to be paid from the proceeds of the Bonds shall be costs of a project within the meaning of the Act.

The trial court concluded that the project, the primary purpose of which is to provide service in connection with tourism facilities, serves a paramount public purpose.

The State concedes that neither the credit of the State nor any political subdivision thereof was pledged for the repayment of the bonds. It does not dispute the statutory authorization for these industrial development bonds, nor does it make any procedural challenge to the proceedings below. Rather, it contends that the statutory provisions authorizing this bond issuance are unconstitutional as applied in the present case because the Days Inn facility operated by a private entity does not serve a paramount public purpose. The State, however, expressly acknowledges the substantial impact of tourism on Florida’s economy. It refers to the 1980 Florida Visitor Study: An Executive Summary to show that tourism generated expenditures of over $17 billion, employment for 580,000 Floridians with a $4 billion payroll, and state tax revenues of over $785 million. It also accepts the conclusions of this report that the Osceola County area is the primary destination in Florida for auto visitors and is the third most popular destination in Florida for air visitors. It recognizes that tourism in the Osceola County area has grown as a result of Walt Disney World, which is the number one tourist attraction in the world; that Walt Disney World’s expansion of its futuristic theme park is scheduled for completion in 1983; that this expansion is expected to increase annual attendance dramatically; and that also included among tourist attractions being developed in the specific area surrounding the proposed Days Inn facility are Walt Disney World’s Reedy Creek Resort, the Little England Theme Park, and a planned movie studio attraction to be built by MCA/Universal Studios.

The proposed public lodging facility is to be built in connection with and directly adjacent to Reedy Creek and Little England. Its location also will be only minutes away from Walt Disney World’s main gate. It is anticipated that as a result of these new attractions, 20,000 additional hotel/motel rooms will be needed to accommodate the increase in the number of visitors, and it is expected that the proposed Days Inn facility will get the majority, if not all, of its business from these existing and planned attractions.

In 1980, the legislature substantially amended the Florida Industrial Financing Act to encompass the project contemplated in the present bond proceeding. Ch. 80-287, Laws of Fla. (1980). Section 159.26 now provides:

The Legislature finds and declares that the agriculture, tourism, urban development, and health care industries, among others, are vital to the economy of the state and the welfare of the people and need to be enhanced and expanded to improve the competitive position of the state; that there is a need to enhance other economic activity in the state by attracting manufacturing development, business enterprise management, and other activities conducive to economic promotion in order to provide a stronger, more balanced, and stable economy in the state, while providing through pollution control and otherwise for the health and safety of the people; that in order to improve the prosperity and welfare of the state and its inhabitants, to improve living conditions and health care, to promote the rehabilitation of slum areas or blighted areas, to promote effective and efficient pollution control throughout the state, to promote the advancement of education and science, research in and the economic development of the state, and to increase purchasing power and opportunities for gainful employment, it is necessary and in the public interest to facilitate the financing of projects provided for in this part and to facilitate and encourage the planning and development of these projects without regard to the boundaries between counties, municipalities, special districts, and other local governmental bodies or agencies in order to more effectively and efficiently serve the interests of the greatest number of people in the widest area practicable; and that the purposes to be achieved by such projects and the financing of them in compliance with the criteria and requirements of this part are predominantly the public purposes stated in this section and that such purposes implement the governmental purposes under the State Constitution of providing for the health, safety, and welfare of the people, including implementing the purpose of s. 10(c) of Art. VII of the State Constitution. (Emphasis supplied.)

Section 159.27(5) defines project to include a tourism facility and to include certain public lodging and restaurant facilities. Section 159.27(11) defines tourism facility within the contemplation of section 159.-27(5) as “property used for or useful in connection with theme parks; zoological gardens; amusement parks; major historical, educational, or trade museums; cultural centers; or spectator or participatory sports facilities generally available to the public, including, without limitation thereto, marinas, arenas, beaches, bathing facilities, golf courses, theaters, auditoriums, racetracks, and frontons.” Section 159.-27(12) defines public lodging or restaurant facility within the contemplation of section 159.27(5) as “property used for any public lodging establishment as defined in s. 509.-242 or public food service establishment as defined in s. 509.013(5) if the primary purpose is to provide service in connection with another facility qualifying under this part.” The primary purpose of the proposed Days Inn facility is indisputably to provide services to a qualifying project, a tourism facility as defined by section 159.27(5).

The proposed project is clearly authorized by the statute. To qualify as a project under chapter 159, part II, the public lodging or restaurant facility does not have to be an integral part of a larger project encompassing the tourism facility. In other words, it does not have to be a part of the same project as the qualifying facility. It alone may constitute a “project” so long as its primary purpose is to provide service in connection with a qualifying facility.

The legislature has expressly determined that a project consisting of a public or lodging facility, such as the present Days Inn project, the primary purpose of which is to provide service in connection with another facility qualifying under the act, here a tourism facility, serves a predominantly public purpose. We have recently rejected the same argument now being made by the State that because the hotel is operated by a private, investor-owned entity, it does not serve a public purpose, and the legislature may not constitutionally say it does. In State v. Orange County Industrial Development Authority, 417 So.2d 959 (Fla.1982), we affirmed the trial court’s judgment validating tax exempt industrial development revenue bonds to finance the construction of a public lodging and restaurant facility by C.B. Day Realty of Florida, Inc., in connection with the Orange' County Civic Center. The trial court, in State v. Orange County, determined and we agreed that the proposed Days Inn facility in that case would serve a paramount public purpose and that the primary purpose of the project would be to provide service in connection with a convention/civic center, a facility qualifying under the act and authorized by the Florida Constitution. The arguments for and against the validation of those bonds are almost identical to the arguments made in the present case. Upholding the validation of the bonds in State v. Orange County, we said:

When the legislature makes a determination of public purpose, a party challenging such a legislative determination must show that such determination “was so clearly wrong as to be beyond the power of the legislature.” Nohrr v. Brevard County Educational Facilities Authority, 247 So.2d 304, 309 (Fla.1971); see also State v. Miami Beach Redevelopment Agency, 392 So.2d 875 (Fla.1980); State v. Housing Finance Authority of Polk County, 376 So.2d 1158 (Fla.1979).
The record reflects that Days Inn is a nationally recognized leader in the industry, and the convention/civic center will not succeed unless and until companies like Days Inn are encouraged to build hotels or motels near the convention/civic center. Moreover, Days Inn provides moderately priced facilities to provide the necessary mix of room prices.

417 So.2d at 962.

We must give great weight to the legislative determination that a “public lodging or restaurant facility” having the primary purpose of providing services in connection with a “tourism facility” is a project which serves the predominately public purposes of promoting the economy and welfare of the people of this state. §§ 159.26 and 159.27, Fla.Stat. We should not substitute our judgment for that of the legislature on the general question of whether tourism is vital to the economy of the state and the welfare of the people, ñor should we substitute our judgment for that of the trial judge on the specific question of whether, based on the record in this case, the Days Inn facility serves that paramount public purpose. We must also give great weight to the finding by the Osceola County Industrial Development Authority that the Days Inn facility proposed in this case qualifies as a public lodging or restaurant facility under section 159.27(12).

The State has failed to demonstrate that the legislature’s determination of public purpose was so clearly wrong as to be beyond the power of the legislature. The trial court properly determined that the Days Inn facility would serve a paramount public purpose and that there is no direct or indirect undertaking by any public body to pay the bonds from public funds. The court further correctly found that the project consists of a qualifying public lodging facility as defined in section 159.27(12).

Accordingly, we affirm the trial court’s judgment validating the bonds and the power of the Osceola County Development Authority to issue the bonds.

It is so ordered.

ADKINS, MCDONALD and EHRLICH, JJ., concur.

BOYD, J., dissents with an opinion, with which OVERTON, J., concurs.

OVERTON, J., dissents with an opinion.

BOYD, Justice,

dissenting.

T dissent from the judgment of the Court. I would deny rehearing and adhere to our original disposition of this case, reversing the judgment of validation.

I believe that the Florida Industrial Development Financing Act is in need of judicial construction and that a narrow construction is necessary to save the statute from unconstitutionality. As construed in this necessarily narrow fashion, the statute does not authorize the issuance of industrial development bonds to finance the project involved in this case. If, under the proper construction of the statute and a proper understanding of the legislative intent, projects such as the one involved in this case are authorized, then the statute violates article VII, section 10, Florida Constitution.

The essence of the authority conferred by the statute is found in the definition of “project” in section 159.27(5), Florida Statutes (1981). That subsection shows that a “public lodging or restaurant facility” can be a part of a “project” only as an appurtenance and cannot be one by itself. The majority sees the definition of “public lodging or restaurant facility” in section 159.-27(12) as authorizing a motel as a project if it is intended to be used in connection with a qualifying facility. As I said in dissent in State v. Orange County Industrial Development Authority, 417 So.2d 959, 963 (Fla.1982), however, I do not construe the statute that way. The definition is limited by the specific enumeration of authorized projects in the definition of the term “project.” See Arnold v. Shumpert, 217 So.2d 116 (Fla.1968). The lodging or restaurant facility must be a part of the same project as the qualifying facility. This analysis compels the conclusion that a motel may not constitute a project on its own but may be an appurtenance of a qualifying facility and thus a part of a project to be financed with public bonds. I find further support for this construction in the principle that statutes should if possible be construed so as to preserve their constitutionality. Leeman v. State, 357 So.2d 703 (Fla.1978); Tyson v. Lanier, 156 So.2d 833 (Fla.1963).

Article VII, section 10, Florida Constitution, prohibits the state and its subdivisions from giving, lending, or using their “taxing power” or their “credit” to aid any corporation, association, partnership, or person, except as authorized by one of the exceptions listed in article VII, section 10. As construed by this Court over a period of many years, article VII, section 10 requires that capital projects to be financed with bonds issued by public agencies must meet two essential requirements: (1) the bonds must be payable only from project revenues and not from taxation and (2) the project must serve a paramount public purpose. Wald v. Sarasota County Health Facilities Authority, 360 So.2d 763 (Fla.1976).

Numerous decisions of this Court have provided interpretation of the requirement of a paramount public purpose. Decisions construing the predecessor provision of article VII, section 10—article IX, section 10 of the Florida Constitution of 1885—are sources of authority for the construction of the current provision since it is of the same import. See State v. Miami Beach Redevelopment Agency, 392 So.2d 875 (Fla.1980); In re Advisory Opinion to the Governor, 112 So.2d 843 (Fla.1959); cf. Nohrr v. Brevard County Educational Facilities Authority, 247 So.2d 304, 309 (Fla.1971) (projects not falling within one of the exceptions in article VII, section 10 must “run the gauntlet” of decisions rendered prior to the 1968 adoption of the exceptions).

Under article VII, section 10, where a project proposed for public bond financing has elements of private economic benefit, the public purpose must predominate; the private use and benefit from the project must be incidental to the public purpose. This principle has been applied in cases involving airports, civic auditoriums, marinas, stadiums, public parking garages and other public facilities to which were connected elements of private use and benefit. E.g., State v. Okaloosa County Airport & Industrial Authority, 168 So.2d 745 (Fla.1964); City of West Palm Beach v. State, 113 So.2d 374 (Fla.1959); Panama City v. State, 93 So.2d 608 (Fla.1957); State v. Daytona Beach Racing & Recreational Facilities District, 89 So.2d 34 (Fla.1956); Gate City Garage, Inc. v. City of Jacksonville, 66 So.2d 653 (Fla.1953). Until the recent enactment of chapter 80-287, Laws of Florida, and the decisions in cases such as State v. Orange County Industrial Development Authority, 417 So.2d 959 (Fla.1982), the Court never had occasion to weigh the public purpose against the private benefit in the construction of a motel, because no one ever had the imagination to suggest that a motel is a public facility. Where private use and benefit predominates and the connection with the public realm becomes tenuous, the “paramount public purpose” requirement is not met.

A broad, general public purpose, such as economic stimulation of a region, which is extraneous to the actual use of the physical facilities themselves, will not sustain the constitutionality of a project which, in terms of its direct, actual use, is purely a private enterprise. E.g., State v. Jacksonville Port Authority, 204 So.2d 881 (Fla.1967); State v. Manatee County Port Authority, 193 So.2d 162 (Fla.1966); State v. Town of North Miami, 59 So.2d 779 (Fla.1952). If the project sought to be financed is purely a private enterprise, a public purpose sufficient to sustain its constitutionality will not be found based on its loose connection with some broader plan having public significance if the entire public project is not before the court for scrutiny. State v. Suwannee County Development Authority, 122 So.2d 190 (Fla.1960).

Since the general promotion of the economy is not, for purposes of the constitutional requirement, a public purpose, when a private business facility is sought to be financed with public bonds, the gravamen of the public purpose requirement is the public necessity for the project. When a privately operated business facility is needed as an amenity at a certain place or in connection with a certain public facility, and the private enterprise market cannot be expected to adequately respond to the need, then the necessity for public inducement or public-assisted financing is shown.

The Court majority and the proponents of the bond issue recognize that necessity is an important element of the public purpose requirement. They emphasize the fact that central Florida is a rapidly developing area in the field of tourism with a variety of large-scale tourist attractions being developed there. From this evidence, however, I draw conclusions that are vastly different from those drawn by the proponents and by the majority opinion. If the tourist attractions are successful, they will create an increased demand for lodging in the area. Rather than concluding that this increased demand establishes a need for publicly assisted bond financing of a motel to be privately owned and operated for profit, I would conclude instead that various investors and groups of investors in the hotel and motel field will literally be vying with one another for the opportunity to finance the construction of hotels and motels in the central Florida area. Thus there is little or no need for public bond financing.

In a free market economy, private investment capital responds to opportunities for profit and growth and thereby gets invested in operations to meet economic demands such as the growing demand for lodging in central Florida. Where a political agency such as a local industrial development authority has the power to bestow upon an entrepreneur or developer the opportunity to finance construction of a business facility with tax-exempt industrial development bonds, a new and disruptive element is introduced into the competitive arena of the marketplace. In such a case, the political authority has the power to confer a decisive financing advantage upon a selected developer which other competitors do not enjoy.

This unnecessary entanglement of political authority with the private economic arena interferes with the process of competition and has far-reaching consequences with regard to the outcomes of competition. We normally expect that, in the operation of motels and all other kinds of businesses, the developers and managers who construct and operate their facilities economically and efficiently will have greater chances for success than those who do not. Those who produce a better product and render better service for value received will tend to draw larger shares of the market than those who perform less well. We generally expect that success — profits and growth — will go to those who provide better products and services while controlling their costs. But in the motel business in central Florida, as well as in many other phases of economic activity all across the nation, a different set of rules is now applicable. Publicly assisted financing can place one competitor at an advantage over another without regard to the quality of the facility constructed, the product delivered, or the service rendered. Thus, political influence comes to mean more to a company’s chances for success than efficiency and performance. This trend will work to the extreme detriment, and not to the benefit, of consumers and workers in the tourist industry alike.

OVERTON, J., concurs.

OVERTON, Justice,

dissenting.

I dissent, and concur in the dissent of Justice Boyd. I find that the circumstances of this case are clearly distinguishable from the circumstances in which this Court validated the bonds in State v. Orange County Industrial Development Authority, 417 So.2d 959 (Fla.1982). I concurred in the validation of those revenue bonds because the hotel in that case was found to be part of “a totally planned tourist/commercial development area .... The convention hotel is part of the convention/civic center plan.” Id. at 951.

The evidence in this cause does not establish that this motel was built as part of an overall tourist attraction or civic center development plan. Its only connection with a tourist attraction is its geographic proximity to Walt Disney World and other attractions. The majority’s approval of this bond issue means that every new motel development in Osceola or Orange County is entitled to revenue bond financing under chapter 159 if they are able to politically convince the Industrial Development Authority to approve this low cost financing. In my view, this was not the intent of the legislature and is not a proper interpretation of chapter 159.


author: ADKINS, Justice.

text:
    FLORIDA POWER CORPORATION, Appellant, v. PUBLIC SERVICE COMMISSION, Appellee.
    No. 60534.
    Supreme Court of Florida.
    Dec. 16, 1982.

      Sylvia H. Walbolt and Donald E. Hemke of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, and S.A. Brandimore and R.W. Neiser, Fla. Power Corp., St. Peters-burg, for appellant.
    William S. Bilenky, Gen. Counsel and Virginia Daire, Staff Counsel, Tallahassee, for appellee.
    Jack Shreve, Public Counsel and J. Roger Howe, Associate Public Counsel, Tallahassee, for citizens of state of Fla., intervenors.
   ADKINS, Justice.

We have for review an order of appellee, the Florida Public Service Commission (hereinafter the PSC), relating to the rates of appellant, Florida Power Corporation (hereinafter FPC), a public utility providing electric service. Jurisdiction is pursuant to article V, section 3(b)(2), Florida Constitution.

In March of 1978, FPC’s Crystal River No. 3 nuclear power plant (hereinafter CR3) was shut down to investigate the cause of certain alarms. A coupling of a burnable poison rod assembly had broken loose and been carried into the steam generator, resulting in severe damage and requiring a major cleanup of the system.

The reactor core had to be defueled and damage to the steam generator assessed. Once the fuel was removed from the reactor core FPC began to replace the fuel assemblies. During replacement of the fuel assemblies various malfunctions developed in a fuel transfer device and extensive repair was required. After the necessary repairs the fuel transfer device was tested with a load. For this purpose a test weight weighing approximately 2000 pounds was selected by plant personnel. A work crew lowered the test weight into the transfer device. When the next work crew arrived to remove the test weight, the employee in charge, a plant engineer, instructed the crew to lift the test weight with a “fish hook.” This particular hook was designed with a capacity of approximately 150 pounds but was not labeled as such. As the weight was lifted the hook straightened out dropping the test weight and damaging a fuel assembly.

At issue in this case is who should bear the burden of the replacement fuel costs ($12,859,251.00) collected by FPC subject to refund. The PSC argues that this is the amount which must be returned by FPC to the ratepayers because of the impact of the dropped test weight incident on the outrage of CR3. The PSC claims that 55 days were added to the outage as a result of this incident.

FPC contends, however, that the dropped test weight incident contributed no more than fourteen days to the outage.

In its order no. 9775 issued on January 30, 1981, the PSC found, inter alia, that:

3. Procedures governing the work activity involving the use of the test weight device were deficient, and the planning and supervision of the project were inadequate. These are functions of company management, and Florida Power Corporation must bear responsibility for the consequences of the incident in terms of replacement fuel costs.
4. Based upon the evidence, ... 55 days of the forced outage must be associated with the dropped test weight incident. The company’s effort to attribute only 14 days to the incident is not supported by competent, credible evidence.
5. The differential between actual fuel costs and those which would have been incurred had Crystal River No. 3 been available 55 days earlier totals $12,-859,251, which amount must be refunded with interest....

Central to the PSC’s conclusion that FPC should bear the responsibility for the dropped test weight incident is its finding that “... evidence that policies, decisions and procedures which were undisputedly the functions of management were lacking in this instance.” Order no. 9775 at 5. To support this finding the PSC relied on a notice of violation issued by the Nuclear Regulatory Commission (hereinafter NRC), as a result of the test weight incident.

The NRC’s notice of violation concluded as follows:

[T]he hook used to lift a 2050 lb. test weight in spent fuel pool (adjacent to nuclear fuel assemblies) was locally manufactured from non-certified material, was not load-tested or qualified prior to use, and was not tagged or marked as to the limitations on its use. The failure of this hook ... contributed to the damage to [the], fuel assembly.... This is an infraction....

Order no. 9775 at 5. (Reference to exhibit omitted.) This conclusion was premised on the required establishment of measures to prevent the use of incorrect or defective material in safety-related activities. The term “safety-related” refers to work involving the risk that radioactive material might be released outside the plant.

In order no. 9775 the PSC described FPC’s failure to treat as safety-related the work involving the test weight as “[t]he single most damaging indictment of those responsible for the activity.” Order no. 9775 at 6. It also found that a lack of adequate procedures led to the incident. Id. Additionally, the PSC concluded that “[i]n view of the proximity of nuclear fuel and of the fact that the test device contained lead, the gross failure by those who directed the use of the device to recognize that its use was safety-related is established virtually by definition.” Id.

We disagree with the PSC’s post-accident assessment of what should have been labeled safety-related. Our independent review of the record discloses that the particular task which resulted in the accident was but a small part of the extended repairs to the fuel transfer mechanism. The record further indicates that the repair work, per se, was not safety-related, and this was, in part, why the use of the test weight was not recognized as being safety-related.

We are mindful of the NRC’s notice of violation which criticized plant procedures for the labeling and testing of hooks, and of the report of FPC’s nuclear general review committee, (NGRC), which concluded that the repair work at CR3 was safety-related. However, the NRC’s notice and the NGRC’s report were both issued after the accident had occurred. Hindsight should not serve as the basis for liability in this instance.

Moreover, the NRC’s notice was concerned solely with safety-related matters, consistent with the NRC’s limited scope of responsibility for nuclear safety and the health of the general public from a radiological standpoint. The notice involved a very different risk and a much higher standard of care than were involved in this case.

The NGRC’s report also focused strictly on nuclear safety considerations. Furthermore, the principal purpose of the report was to reinforce and strengthen existing procedures, not to propose new ones. This is consistent with the purpose of the NGRC, a committee set up by FPC pursuant to NRC requirements. The purpose of the NGRC is to suggest improvements in procedures after an accident occurs. Its purpose is not to find fault.

After a careful review of the record and of the PSC’s order no. 9775, we believe that the PSC relied excessively on the NGRC report and the NRC notice of violation. While these documents are undoubtedly useful for numerous purposes, they should not serve as the primary source of evidence in a fault-finding determination. Such use of these documents would be analogous to using evidence of subsequent repairs and design modifications for the purpose of showing that the original design was faulty. This would clearly violate Florida’s strong public policy in favor of post accident investigations.

We need not consider appellant’s other points on appeal.

Order no. 9775 is hereby reversed and this cause is remanded to the PSC for reconsideration in light of the views expressed in this opinion.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Frank BYRON, Respondent.
    Nos. 61470, 61562.
    Supreme Court of Florida.
    Dec. 16, 1982.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Richard B. Liss, Bar Counsel, Miami, for complainant.
    Frank Byron, in pro. per.
   PER CURIAM.

This disciplinary proceeding is before us on the complaint of the Florida Bar and the report of the referee recommending that respondent be indefinitely suspended. The Florida Bar has petitioned for review. Respondent has failed to appear and file a response. We have jurisdiction. Art. V, § 15, Fla. Const.

The alleged misconduct concerns the respondent’s failure to keep accurate trust account records in connection with the administration of a client’s estate and the respondent’s failure to maintain his trust account in compliance with the minimum requirements for trust account records and procedures. At the final hearing, respondent contended that he was merely guilty of “sloppy bookkeeping,” which he attributed to his alcoholism. The referee found respondent guilty of violating Florida Bar Code of Professional Responsibility, Disciplinary Rules 1-102(A)(6), 6-101, and 9-102(B)(3), and article XI, Rule 11.02(4) of the Integration Rule of The Florida Bar. The referee initially recommended that respondent be suspended from practice indefinitely, requiring proof of rehabilitation in two areas before respondent could be reinstated. The referee recommended that, as proof of rehabilitation, respondent be required to successfully complete an accredited course in bookkeeping and trust accounting and be successfully treated for alcoholism. The referee noted that respondent had previously been suspended for thirty days in 1980 and sixty days in 1981. The Florida Bar filed a motion for clarification of the referee’s disciplinary recommendation, noting that article XI, Rule 11.10(4) of the Integration Rule of The Florida Bar “requires suspensions to be for a time certain and does not permit an indefinite period of suspension unless such period is preceded by a definite period of suspension.” The referee filed a response to the Bar’s motion for clarification, advising that respondent could not be expected to be rehabilitated in a period of less than three years and stating that respondent should be suspended for “three years or until proof of rehabilitation ... is shown.”

We agree that the referee must recommend a definite period of suspension. We conclude and order that respondent be suspended from the practice of law for a period of three years, and thereafter until such time as proof of rehabilitation is shown. Respondent’s proof of rehabilitation shall include evidence of satisfactory alcoholic treatment, the successful completion of a trust-accounting course, and passing the ethics portion of the Florida Bar exam. Costs are assessed against respondent in the amount of $1,642.71.

It is so ordered.

ALDERMAN, C.J., and ADKINS, OVER-TON, MCDONALD and EHRLICH, JJ, concur.


author: OVERTON, Justice.

text:
    CANAL INSURANCE COMPANY, Petitioner, v. INSURANCE COMPANY OF NORTH AMERICA, Respondent.
    No. 61516.
    Supreme Court of Florida.
    Dec. 16, 1982.
    Harry W. Lawrence of Lawrence, Griffin & Landis, Orlando, for petitioner.
    Robert A. Hannah of Pitts, Eubanks & Ross, Orlando, for respondent.
   OVERTON, Justice.

This is a petition to review the decision of the Fifth District Court of Appeal in Insurance Co. of North America v. Morgan, 406 So.2d 1227 (Fla. 5th DCA 1981), which directly conflicts with the decision in National Indemnity Co. v. Pennsylvania National Mutual Casualty Insurance Co., 363 So.2d 151 (Fla. 3d DCA 1978), cert. denied, 370 So.2d 461 (Fla.1979). We have jurisdiction under article V, section 3(b)(3), Florida Constitution, and approve the decision in Morgan.

The issue is whether respondent, Insurance Company of North America (INA), as a predecessor company which did not file a notice of policy expiration with the Florida Public Service Commission (PSC) for certain motor carrier liability coverage, is liable for fifty percent contribution to its successor insurance company, petitioner, Canal Insurance Company (Canal). The district court held that there was no liability for contribution. We agree, our decision being limited to the issue of contribution between the insurance companies. We do not address the possible liability of the predecessor insurance company to third-party beneficiaries of the policy when that company has failed to file the required expiration notice.

The facts reflect that a judgment was entered in a wrongful death action against C & W Leasing, Inc., a trucking company regulated by the PSC. C & W Leasing had been insured by INA, but that policy had expired prior to the accident giving rise to the wrongful death action. INA failed to file notice of expiration with the PSC as required by rule 25-5.31(5)(A), Florida Administrative Code. The trucking firm timely replaced INA’s policy with one written by Canal. Canal filed its policy with the PSC, which granted approval of the coverage, and Canal was receiving premiums under the policy at the time of the accident. Canal filed suit against INA for contribution, basing its claim solely on INA’s failure to file the required expiration notice with the PSC. Canal knew it was a successor insurance carrier, and it fully expected to have primary coverage for any accident which occurred during the covered period.

In a thorough, well-reasoned opinion, the district court reversed the trial court’s summary judgment against INA and held that Canal was not entitled to contribution. Finding that the legislature intended the notification requirement to protect the public by assuring that a motor carrier have funds available, at all times, to compensate anyone injured by its vehicles, the district court noted that C & W Leasing experienced no lapse in insurance coverage, Canal’s policy having been obtained immediately upon expiration of the INA policy. Because Canal assumed the full risk of insuring C & W Leasing and determined its premiums without anticipation of contribution from INA, the district court found that Canal was not entitled to seek a fifty percent contribution towards the loss.

We find that the district court properly refused to rely on the notification requirement of rule 25-5.31(5)(A) as authority for granting Canal the right to contribution from INA. We emphasize that the sole purpose of the rule, enacted under the authority of chapter 323, Florida Statutes (1979), is to protect the public against injury caused by the negligence of motor carriers. Neither the rule nor chapter 323 was intended to be used to diminish a. current insurer’s liability for an accident which it received a premium to cover. To hold otherwise would grant the current insurer a right of contribution amounting to a “windfall” not contemplated by the legislature or the PSC.

We approve the decision of the district court in this case and disapprove National Indemnity Co. to the extent of conflict with the instant opinion.

It is so ordered.

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


author: PER CURIAM. ADKINS, J.,

text:
    THE FLORIDA BAR. In re Samuel Essie BARKET, Jr.
    No. 61645.
    Supreme Court of Florida.
    Dec. 16, 1982.
    William L. Coalson of Greene & Greene, Jacksonville, for petitioner.
    Dale E. Krout, Jr., Bar Counsel, Tallahassee, for respondent.
   PER CURIAM.

Samuel Essie Barket, Jr., having previously been a member of The Florida Bar who was suspended therefrom on January 7,1976, petitions for reinstatement to membership in good standing in The Florida Bar. A hearing was held before a referee who found Mr. Barket morally equipped to resume a position of honor and trust among the ethical practitioners at the bar. He also found, however, since Barket has been out of the practice of law for over six years and because the evidence falls far short of showing that Barket has kept abreast of the law and is equipped and professionally competent to practice law, that Barket’s readmission should be conditioned upon his successful completion of the Florida bar examination. Barket petitions for review on the issue of whether he must take the bar examination. The Florida Bar does not contest the finding that Barket is morally fit to again practice law, but insists that he should take and pass the bar examination.

Whether the requirement of one’s taking the bar examination should be a condition to being readmitted, when the suspension has continued over three years, is largely a judgment call. The purpose of a bar examination is to test one’s minimal competency to practice law. When a referee determines that one’s legal competency to return to the practice of law after a long suspension is not proved, it is proper to require, by testing, a demonstration of that competence. Because each petitioner is different, whether it is proper to require a successful passing of a bar examination as a condition for reinstatement must be considered on a case by case basis. No such requirement was found in The Florida Bar In re Efronson, 403 So.2d 1305 (1980), where Efronson had maintained a large law library, read advance sheets and session laws, and had positive third party testimony that he had kept up with developments in the law. In that case The Florida Bar did not urge examination. Nor did it do so in The Florida Bar In re Warren, 408 So.2d 223 (Fla.1981). The facts of Warren are not reported in the opinion, but it is represented that Warren had maintained a high degree of proficiency by working as a legal intern. In The Florida Bar In re Davis, 397 So.2d 690 (Fla.1981), this Court required a suspended lawyer who had been an active legal intern in Alabama to take the Florida and ethics parts of the examination even though the referee did not recommend it.

In this case Barket’s primary business during his suspension has been that of a home improvement contractor. While he has had some contact with attorneys, has occasionally read advance sheets, and has observed some trials, his association with the law has been much less than that of Efronson, Warren, or Davis. The referee’s finding that the evidence falls far short of showing that he has kept abreast of the law and is equipped and professionally competent to resume practice is supported by the record. We therefore adopt his report and recommendation. Accordingly, Samuel Essie Barket, Jr., may be reinstated as a member of The Florida Bar when he has successfully passed all portions of the Florida bar examination and has paid the costs accrued by the Bar prior to and as a condition of reinstatement. Costs in the amount of $1,059.17 are taxed against him now and are due and payable thirty days from the date this opinion is filed.

It is so ordered.

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

ADKINS, J.,

concurs in part and dissents in part: I would not require petitioner to pass the bar examination as a condition precedent to reinstatement.

       Fla.Bar Integr.Rule, art. XI, Rule 11.11(9) reads as follows:
      If the petitioner is found unfit to resume the practice of law, the petition shall be dismissed. If the petitioner is found fit to resume the practice of law, the judgment shall reinstate him in The Florida Bar; provided, however, that the judgment may make such reinstatement conditional upon the payment of all or parts of the costs of the proceeding, and upon the making of partial or complete restitution to parties harmed by the petitioner’s misconduct which led to the suspension of his membership in The Florida Bar; and further provided, however, that if suspension of petitioner has continued for more than three years, the reinstatement may be conditioned upon the furnishing of such proof of competency as may be required by the judgment in the discretion of the Supreme Court, which proof may include certification by the Florida Board of Bar Examiners of the successful completion of an examination for admission to The Florida Bar subsequent to the date of suspension.


text:
    THE FLORIDA BAR, Complainant, v. V. Robert CARLISLE, Respondent.
    No. 62914.
    Supreme Court of Florida.
    Dec. 16, 1982.
    John A. Weiss, Discipline Counsel, Tallahassee, and Robert D. Rosenbloom, Asst. Staff Counsel, Miami, for complainant.
    Y. Robert Carlisle, in pro. per.
   PER CURIAM.

This matter is before the Court on the Florida Bar’s petition for approval of a conditional guilty plea to violations of the Florida Bar Code of Professional Responsibility, Disciplinary Rule 6-101(a)(1), (2), and (3). Respondent has admitted being dilatory in handling the probate of an estate. We approve the petition and hereby reprimand respondent, Robert Carlisle. Publication of this order in the Southern Reporter shall serve as a public reprimand.

Costs in the amount of $430.50 are hereby taxed against respondent.

It is so ordered.

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