author: PER CURIAM.

text:
    Roy Allen STEWART, Appellant, v. STATE of Florida, Appellee.
    No. 57971.
    Supreme Court of Florida.
    Aug. 26, 1982.
    Rehearing Denied Nov. 9, 1982.

      Bennett H. Brummer, Public Defender and Robert R. Schrank, Asst. Public Defender, Miami, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., Miami, for appellee.
   PER CURIAM.

Roy Allen Stewart appeals his conviction of first-degree murder and sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm this conviction and sentence.

A Dade County grand jury issued a four-count indictment charging Stewart with first-degree murder, robbery with a weapon, sexual battery with force likely to cause serious bodily injury, and burglary of an automobile with a weapon. The charges stemmed from the robbery and sexual battery of an elderly woman and her death by beating and strangulation. The victim suffered eight broken ribs, brain hemorrhages due to blows to the head, two human bites, a fractured larynx and lacerations of the vagina. The medical examiner testified that she was alive when all the injuries occurred and that the cause of death was multiple blunt trauma. The jury found Stewart guilty of all charges and recommended the death penalty for the homicide conviction.

Stewart alleges that a comment by the trial court to the prospective jurors so prejudiced him that a new trial is required. A trial judge should not convey to a jury any intimation as to the court’s opinion of the case. Raulerson v. State, 102 So.2d 281 (Fla.1958). We find that the judge’s remark did not violate this rule and did not prejudice Stewart’s defense.

In his second point Stewart alleges that the trial court committed fundamental error by failing to instruct the jury on the intent to permanently deprive another of property as an element of robbery. This specific intent is a requisite element of the crime of robbery. Bell v. State, 394 So.2d 979 (Fla.1981). At the time of Stewart’s trial, however, the standard jury instructions did not contain intent to permanently deprive as an element of robbery, and Stewart’s jury did not receive such an instruction. The district courts of appeal have considered this issue and have held that fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict. Gibson v. State, 403 So.2d 1019 (Fla. 3d DCA 1981), review granted, Feb. 15, 1982; Williams v. State, 400 So.2d 542 (Fla. 3d DCA), review denied, 408 So.2d 1096 (Fla.1981). See Leary v. State, 406 So.2d 1222 (Fla. 4th DCA 1981). In the instant case Stewart took the stand in his defense and admitted that he stole personal property from the victim. Intent to permanently deprive another of property, therefore, was not at issue due to Stewart’s admission. We find no merit to Stewart’s claim on this issue.

Stewart also claims that the trial court’s failure to grant a continuance prior to sentencing so that another psychological examination could be performed denied him the effective assistance of counsel. Because the facts on which this claim is based are evident on the record before this Court, this contention is cognizable on appeal. We find, however, no merit to this claim. The record shows that defense counsel had sufficient psychiatric evaluations to work with at the time of sentencing. It appears that another psychiatric examination would have been merely cumulative. A motion for continuance is addressed to the sound discretion of the trial court, and we find neither an abuse of discretion regarding the instant claim nor a denial of effective assistance of counsel.

Prior to trial, three psychiatrists examined Stewart; each found him competent to stand trial and able to assist in his defense. On the day the sentencing proceedings began (three days after the guilt phase ended), defense counsel moved for a continuance and appointment of a psychiatrist and a psychologist. The defense claimed that further psychological examinations specifically directed to the mitigating circumstances set out in subsections 921.141(6)(b), (e), and (f), Florida Statutes, were necessary to insure a fair sentencing proceeding. On appeal Stewart claims that the court’s denial forced him to rely solely on lay testimony, thereby preventing the unlimited consideration of mitigating evidence as mandated by Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

The trial court, in denying the motion, noted that two attorneys had been working diligently on Stewart’s case for more than a month; she found them eminently prepared and commended their thorough trial conduct. In light of the previous psychological examinations which gave rise to the doctors’ opinions that Stewart had the capacity to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of the law, the court found another professional evaluation unwarranted. We agree. The defense could have called any or all of the examining psychiatrists and asked them on the witness stand if they had formed an opinion regarding the applicability of subsections 921.141(6)(b), (e), and (f) to Stewart. Such questioning and testimony would have been both permissible and appropriate. We find that the trial court in no way limited the presentation or consideration of mitigating evidence and hold that the trial court did not abuse its discretion by refusing to grant the continuance.

Stewart also alleges that the court erred, under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), by excusing for cause a prospective juror who, although opposed to the death penalty, could have been an impartial juror. A review of the voir dire of this prospective juror reveals his total opposition to the death penalty and that he did not believe in the death penalty under any circumstances. We find that the trial judge neither committed a Witherspoon violation nor abused her discretion by excusing this prospective juror.

As his final point on appeal Stewart alleges that numerous infirmities in the sentencing proceeding require that he be given a new sentencing hearing. Our review of the record shows these claims to be without merit.

The state asked the medical examiner a single question about how much pain a person being electrocuted feels. Defense counsel then stated, “I object,” but presented no grounds or arguments to support the objection. Defense’s subsequent cross-examination of this doctor on the effects of electrocution extends for four pages in the transcript, and we find no error in the court’s overruling the objection. Additionally, the court properly disallowed the testimony of a defense witness who had observed numerous executions. Shriner v. State, 386 So.2d 525 (Fla.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 829 (1981).

Stewart also claims that the state introduced improper aggravating evidence, exceeded the scope of cross-examination, and argued nonstatutory aggravating circumstances to the jury. The record, however, shows that the complained-of evidence supported the statutory aggravating factors, that the state conducted a proper cross-examination, and that the final argument fell within the wide latitude permitted for argument.

After resting in the sentencing proceeding, but prior to argument, the defense requested permission to reopen its case to put on one more witness. The defense wanted this witness, a detective, to testify as to the contents of a sworn statement made by an acquaintance of Stewart’s. To support his request defense counsel stated that he wanted to show that the acquaintance had lied in her statement. Before this Court, however, Stewart claims that disallowing this testimony precluded him from showing evidence of remorse because the acquaintance’s statement said that Stewart had told her he was sorry for what he had done.

Reopening a case for additional testimony is discretionary, Hoey v. Fletcher, 39 Fla. 325, 22 So. 716 (1897). Notwithstanding the failure to object to the court’s ruling, we find that the trial court did not abuse her discretion in this instance. Moreover, by changing his assessment of the import and effect of the sworn statement Stewart has improperly raised in this Court a ground for review not brought before the trial court.

We also find that the trial court did not err in refusing to give all of Stewart’s proposed instructions or in finding that five aggravating, but no mitigating circumstances had been established. As the trial court pointed out, the standard sentencing instructions adequately cover the matters included in the proposed instructions. There is no evidence that the judge and jury failed to properly weigh and consider the evidence presented to them, and the record amply supports the trial court’s written findings of fact.

Finding no error in this well-prepared and well-tried case, we affirm both the conviction and sentence.

It is so ordered.

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

      . Although not questioned on appeal, we have found no error regarding Stewart’s convictions of robbery, sexual battery, and burglary and, therefore, affirm those convictions and their attendant sentences.

      . Additionally, we note that Stewart failed to object to the court’s comment. We have previously held that if an allegedly improper cornment is not objected to, an appellate court will not reverse a conviction unless the comment is so prejudicial as to be fundamental error. Ross v. State, 386 So.2d 1191 (Fla.1980).

      .We note that defense failed to object to the instructions given at trial.

      . Generally, ineffective assistance of counsel is a collateral matter which should be addressed through a motion for post-conviction relief. See Knight v. State, 394 So.2d 997 (Fla.1981); Meeks v. State, 382 So.2d 673 (Fla.1980).

      . Magill v. State, 386 So.2d 1188 (Fla.1980), cert. denied, 450 U.S. 927, 101 S.Ct. 1384, 67 L.Ed.2d 359 (1981); Fla.R.Crim.P. 3.190(g)(2).

      . Defense counsel merely acquiesced in the court’s denial.

      . The court found the following aggravating factors under § 921.141(5), Fla.Stat.: under sentence of imprisonment; previous conviction of crime involving use or threat of violence; felony murder; pecuniary gain; and heinous, atrocious, and cruel.


source: Caselaw Access Project

author: PER CURIAM. ALDERMAN, Chief Justice,

license: Public Domain

text:
    A. Curtis POWERS, Clerk of the Circuit Court, Petitioner, v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF JACKSONVILLE, a corporation, Respondent.
    No. 61300.
    Supreme Court of Florida.
    Aug. 26, 1982.
    Rehearing Denied Nov. 4, 1982.

      Dennis R. Long, Alachua County Atty., Gainesville, for petitioner.
    David L. Fleming and Michael A. Wod-rich of Rogers, Towers, Bailey, Jones & Gay, Tallahassee, for respondent.
   PER CURIAM.

We review the decision of the District Court of Appeal, First District, in Powers v. First Federal Savings & Loan Association of Jacksonville, 404 So.2d 786 (Fla. 1st DCA 1981), which affects a class of constitutional officers. The district court held that the $25 fee provided for in section 45.031(1), Florida Statutes (1979), is the only fee to which the clerk of the circuit court is entitled for administering a judicial foreclosure sale pursuant to chapter 45. We disagree and hold that the clerk is also entitled to collect a registry fee provided for in section 28.24(14), Florida Statutes (1979), on proceeds paid by a third-party bidder at a foreclosure sale conducted pursuant to section 45.031.

In the present case, the Clerk of the Circuit Court of Alachua County, A. Curtis Powers, held a foreclosure sale pursuant to a summary final judgment of foreclosure entered by the circuit court. This final judgment provided that upon confirmation of the sale as provided by statute or by order of the court, the clerk shall disburse the proceeds of the sale by paying “(a) the costs and expenses of this action incurred after the date hereof, and said attorneys’ fees, (b) the remaining amounts due the Plaintiff with interest thereon as provided by statute from the date hereof through the date of sale.” The judgment provided that any surplus after payments would be paid into the registry of the court.

After the sale, the clerk filed his Certificate of Sale certifying that the highest and best bid for the property was submitted by a third-party bidder. He later issued a Certificate of Title in the mortgage foreclosure and filed his Certificate of Disbursements of Proceeds of Sale by Clerk in Mortgage Foreclosure. This Certificate of Disbursements included a “clerk’s registry fee” of $149.60. The clerk, pursuant to section 45.031, also collected $25 as a judicial sale fee. First Federal Savings & Loan, the plaintiff in the foreclosure proceedings, filed an objection to this certificate and asserted, among other things, that the clerk erroneously withheld as his service charge the fee of $149.60 provided in section 28.-24(14) for receiving money into the registry of the court in violation of section 45.031(1) which provides a fee of $25 for such services and in violation of the final judgment which orders that only surplus, after payments specified therein, be paid into the registry of the court. The circuit court held that the' clerk had erroneously withheld a registry fee of $149.60 and ordered the clerk to issue this sum to First Federal. It reasoned that the clerk’s service charge provided for in chapter 45 includes the receipt and disbursement of funds in the event that there is a third-party bidder and that the funds received by the clerk in connection with conducting a judicial sale are not those funds described by section 28.24(14) as money réceived into the registry of the court.

The clerk appealed to the district court, but the district court agreed with the trial court that section 45.031(1) provides the exclusive charge for the clerk’s services in connection with the sale of real or personal property for forced sale. It stated that the fee provided for the clerk for his services in administering the judicial sale is an alternative to and an exception to the general fee set forth in section 28.24.

Judge Liles dissented on the bases that section 28.24 is mandatory and that no exceptions are provided. He reasons, and we agree, that sections 28.24 and 45.031 involve two separate functions and that section 45.-031 does not create a clear exception to section 28.24, thereby permitting preemption of the fee required by section 28.24. In Taylor v. Tampa Electric Company, 356 So.2d 260 (Fla.1978), we said that the language of section 28.24 is mandatory and any exception to this statute should be clear.

As petitioner argues and as Judge Liles points out, these two statutory provisions are easily harmonized. The $25 fee is for the conducting of the sale, the filing of all required certifications, the issuance of the certificate of title, and the recording and certifying the title. Where he is required to hold money in the registry of the court as in the present case where there is a third-party bidder at the foreclosure sale, the clerk provides a separate and distinct function for which he must collect a charge pursuant to section 28.24(14). If the legislature intends otherwise, it must make this exception clear.

Accordingly, we quash the decision of the First District and remand for further proceedings consistent with this decision.

It is so ordered.

ADKINS, BOYD, SUNDBERG and EHRLICH, JJ., concur.

ALDERMAN, C.J., dissents with an opinion, with which OVERTON and MCDONALD, JJ., concur.

ALDERMAN, Chief Justice,

dissenting.

I would approve the decision of the First District Court and hold that section 45.-031(1) constitutes a clear exception to the mandatory language of section 28.24(14). Section 45.031 governs judicial sales procedure and sets out the fee to be charged by the clerk for his services in this regard. This fee is $25. I agree with the First District that this fee is clearly an alternate fee and an exception to the fee provided for in section 28.24(14).

Taylor v. Tampa Electric Company is distinguishable from the present case because the eminent domain statute involved in that case did not provide an alternate fee as does section 45.031.

OVERTON and McDONALD, JJ., concur.

      . Section 45.031 provides in pertinent part:
      In any sale of real or personal property under an order or judgment, the following procedure may be followed as an alternative to any other sale procedure if so ordered by the court:
      (1) SALE BY CLERK. — In the order or final judgment, the court shall direct the clerk to sell the property at public sale on a specified day that shall be not less than 20 days after the date thereof, on terms and conditions specified in the order or judgment.. . .

      The clerk shall receive a service charge of $25 for his services in making, recording, and certifying the sale and title that shall be assessed as costs. The court may enlarge the time of the sale. Notice of the changed time of sale shall be published as provided herein.

      (6) DISBURSEMENTS OF PROCEEDS. — On filing a certificate of title the clerk shall disburse the proceeds of the sale in accordance with the order or final judgment, and shall file a report of the disbursements and serve a copy of it on each party not in default in substantially the following form: (Caption of Action)

      . Section 28.24 provides in pertinent part:
      The clerk of the circuit court shall make the following charges for services rendered by his office in recording documents and instruments and in performing the duties enumerated. However, in those counties where the clerk’s office operates as a fiscal unit of the county pursuant to s. 145.022(1), the clerk shall not charge the county for such services.

      (14) For receiving money into the registry of court:
      (a) First $500, percent.
      (b) Each subsequent $100, percent


author: OVERTON, Justice.

text:
    STATE of Florida, Petitioner, v. Ken Scott KILPATRICK, Respondent.
    No. 61349.
    Supreme Court of Florida.
    Sept. 14, 1982.
    Rehearing Denied Nov. 9, 1982.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for petitioner.
    Philip J. Padovano, Tallahassee, for respondent.
   OVERTON, Justice.

This cause is before the Court on the state’s motion to reinstate its petition for discretionary review after an administrative dismissal on the grounds of untimely filing. The real issue is whether a motion for a rehearing en banc before a district court of appeal, which was filed separately and not in conjunction with a motion for rehearing under rule 9.330(a), has the effect of tolling time for filing a petition for review in this Court until the district court issues its mandate. We hold that the time for petitioning this Court was not tolled because the separately filed motion for en banc review was a nonallowable motion under rule 9.331 and was in fact a nullity. As a result, the administrative dismissal was correct.

For a better understanding of the issues, we set forth chronologically the critical events in this proceeding.

On September 17, 1981, the First District Court of Appeal issued its opinion reversing the trial court. 403 So.2d 1104.

On September 24, 1981, the state filed a motion entitled “Motion for Rehearing En Banc,” in which the state, “pursuant to Fla.R.App.P. 9.330(c), requests the Court grant rehearing en banc in the above-styled cause.” At the conclusion of the motion, “the State asserts that rehearing en banc should be granted because the court overlooked several key legal principles applicable to Appellants’ case, and review by the full court is necessary to maintain uniformity among the court’s opinions.”

On October 13, 1981, the district court of appeal issued its mandate on the opinion filed September 17, 1981.

On October 28, 1981, the state filed a notice to invoke this Court’s jurisdiction on the grounds of conflict with a case previously decided by this Court.

On November 4,1981, this Court administratively dismissed this cause because it had not been timely filed.

The state mistakenly filed its en banc rehearing motion under rule 9.330(c), the rule which pertains solely to rehearing in bond validation matters. By the motion’s contents, it appears clear that the state intended the motion to be filed under rule 9.331(c), the en banc rule. Those portions of rule 9.331(c) which are pertinent to the issue in this case read as follows:

(1) Generally. A rehearing en banc may be ordered by a district court of appeal on its own motion or on motion of a party. Within the time prescribed by Rule 9.330 and in conjunction with the motion for rehearing, a party may move for an en banc rehearing solely on the ground that such consideration is necessary to maintain uniformity in the court’s decisions. A motion based on any other ground shall be stricken. A vote will not be taken on the motion unless requested by a judge on the panel that heard the proceeding, or by any judge in regular active service on the court. Judges who did not sit on the panel are under no obligation to consider the motion unless a vote is requested.
(3) Formal Order on Motion for Rehearing En Banc. An order on a motion for rehearing en banc shall be deemed denied upon a denial of rehearing or a grant of rehearing without en banc consideration. If rehearing en banc is granted, the court may limit the issues to be reheard, require the filing of additional briefs, and may require additional argument.

(Emphasis ours.)

The state contends that its motion as filed tolled the time for any proceedings in the district court until that motion was disposed of, citing Florida Rule of Appellate Procedure 9.300(b) and (d). The state claims that, since the motion for rehearing en banc was not specifically listed in rule 9.330(d), time for petitioning this Court for review was tolled until the district court acted by issuing its mandate.

We reject this contention because the motion as filed is nonallowable under rule 9.331(c) and requires no order or response from the district court of appeal. Rule 9.331(c) clearly states that “in conjunction with a motion for rehearing, a party may move for an en banc rehearing . ... ” (Emphasis ours.) The rule does not provide for a separate motion for en banc rehearing.

The en banc rule, by its express provisions, does not require a district court to respond to a request for rehearing en bane. If we accepted the state’s contention, however, it would mean that the district courts of appeal would be compelled to respond, even though the rule clearly states a vote will not be taken on an en banc rehearing motion unless requested by a judge.

The reasoning behind the “in conjunction with” language is the assurance that each en banc rehearing request will simultaneously be disposed of by the district court’s disposition of the traditional rehearing motion and is to eliminate separate motions for rehearing en banc. Accordingly, the state’s motion for reinstatement is denied.

It is so ordered.

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

BOYD, J., dissents.


text:
    FLORIDA BOARD OF BAR EXAMINERS. In re AMENDMENT TO RULES RELATING TO ADMISSIONS TO the BAR.
    No. 62590.
    Supreme Court of Florida.
    Sept. 23, 1982.
    Earl M. Johnson, Chairman, Florida Bd. of Bar Examiners, Jacksonville, and C. Graham Carothers, Tallahassee, for petitioner.
   PER CURIAM.

This matter is before us on petition of the Florida Board of Bar Examiners for amendment of the Rules of the Supreme Court of Florida Relating to Admissions to the Bar. The Board proposes that fee increases are necessary to fund the work of the Board at its present level. Specific amendments to the Rules modifying the amount of such fees are proposed to be made in Article IV “Applications,” Article V “Schedule of Fees” and Article VI “Examinations.”

We approve the Board’s proposed changes (with editorial modifications) and hereby adopt the amendments appended to this order, effective 12:01 a.m., October 1, 1982.

It is so ordered.

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

APPENDIX

ARTICLE IV, SECTION 1

Section 1. Applications shall consist of:

(a) An Application for Admission into the General Bar Examination (Form 1-A) and;

(b) Application for Admission to The Florida Bar (Form 1 or Form 2, as applicable).

Although the application for admission into the General Bar Examination and the application for admission to The Florida Bar are entirely independent of each other, applicants are advised that the character and fitness investigation conducted by the Board in conjunction with the Application for Admission to The Florida Bar is detailed and may require 6-8 months for all facts to be marshalled and a decision reached by the Board. Therefore, law students are encouraged to file for admission to the Bar when entering their senior year in law school to assure completion of all character and fitness related matters at the time of grade release of the first examination following graduation. All applicants are urged required to file fully completed questionnaires and to be responsive to Board requests for further information in order to assure orderly processing of the files.

Applications for Admission into the General Bar Examination and to The Florida Bar shall be made upon forms supplied by the Board pursuant to Article V, Section 46 18. Those applicants utilizing Part B (Multi-state Bar Examination — MBE) scores from other jurisdictions must have filed with that jurisdiction as an applicant for that bar prior to the administration of said MBE.

Bar applications (Form 1 or Form 2) filed in a defective condition, i.e.. without notarization or supporting documents or having blank or incomplete items on the application. shall be accepted but a fee of $20.00 as specified under Article V. Section 4 shall be assessed.

The Application for Admission to The Florida Bar must be filed not later than 180 days from the date of the notice that success has been attained on all parts of the Florida Bar Examination (General Bar Examination and Multistate Professional Responsibility Examination — MPRE) as provided under Article VI, Section 9(b).

Note: Applications for the Multistate Professional Responsibility Examination (MPRE) are filed with the appropriate agency of the National Conference of Bar Examiners. Fees required for that administration shall be paid to the agency administering that examination.

ARTICLE V SCHEDULE OF FEES

The following fees shall be paid by the applicant. No fees shall be refunded, except that the Board may, in its discretion and upon request, refund all or a portion of the fees of an applicant who dies before taking the oath of admission.

Section 1. The application of applicants described in Article IV, Section 2, shall be accompanied by a fee of.$208=00 240.00

Section 2. The application of applicants described in Article IV, Section 3, shall be accompanied by a fee of.$800=00 720.00

Section 3. Fees for late filing for admission to the General Bar Examination as provided under Article VT. Section 5, herein shall be:

Cal As provided hv Article VI. Section ¡Val.$25.00

(bl As provided hv Article VI. Section 5(b).$50.00

(c) As provided hv Article VI. Section 5(c) .$100,00

Section 4. For an Applicant's Questionnaire and Affidavit filed in a defective condition as described in Article IV. Section 1 the applicant shall pay a fee of.$20.00

Section 3 §. The Applicant’s Questionnaire and Affidavit filed as a registrant as required by Article II, Section 1, shall be accompanied by a fee of.$40=00 50.00

Section 4 §. The application filed late as provided in Article II, Section 2, shall be accompanied by a fee of.$50=00 60.00

Section 5 7. The application filed late as provided in Article II, Section 3, shall be accompanied by a fee of.$754» 90.00

Section 6 §. The application filed late as provided in Article II, Section 4, shall be accompanied by a fee of.$420=00 150.00

Section 7 9. For the investigation and inquiry provided in Article II, Section 5, the registrant shall pay a fee of.$60=00 60.00

Section 8 10. A petition for reconsideration as provided under the provisions of Article III, Section 4(a), shall be accompanied by a fee of .$58=00 60.00

Section 9 11. A petition for reconsideration of a ruling by the Board involving the suspension or waiver of any rule or regulation or an order issued by the Board relating to matters other than a registrant’s or applicant’s character, fitness or general qualifications, shall be accompanied by a fee of .$10.00 15.00

The petition must refer only to an administrative ruling by the Board and contain new and additional matter which the Board has not previously considered.

Section 40 12. For each examination administration entered after the first which must be paid by the deadlines prescribed in Article VI, Section 5, a fee of.$50=00 70.00

The term “administration” refers to any one of the two annual presentations specified under Article VI, Section 4. The second presentation entered, whether to repeat a part of parts of the examination or attempt a part or parts of the examination for the first time, requires payment of this fee.

Section 44 13- Pees for postponement of admission to the General Bar Examination as provided under Article IV, Section 5, herein shall be:

(a) As provided by Article IV, Section 5(a) $204)0 25.00 (b) As provided by Article IV, Section 5(b) $30=00 40.00 Section 42 M- Petitions or requests relating to or involving a suspension or waiver of any rule, regulation or order shall be accompanied by a fee of .. $45.00 20.00 Section 43 lg. The cost of a transcript or any record or document reasonably required by the Board in the conduct of an investigation or inquiry into the character and fitness of an applicant or a registrant shall be paid by such applicant or registrant.

Section 44 16. Upon a showing of need therefor by the Board, the Court may order any applicant or registrant to pay over to the Board additional sums necessary in the conduct of any inquiry and investigation into the character and fitness and general qualifications of such applicant or registrant.

Section 46 17. Each request for a copy of any document or portion thereof filed by an applicant in the course of such applicant’s seeking admission to the General Bar Examination or The Florida Bar or for any certificate of the Board shall be accompanied by a fee of $6=00 10.00 for the first page and $.25 for each additional page.

Section 48 18. Requests for copies of the application forms for admission to the General Bar Examination and for admission to The Florida Bar filed by persons other than students matriculating at the law schools within the State of Florida, the deans and librarians of such Florida law schools, and any other persons to be designated by the Board, shall be accompanied by a fee of $10.00 15.00. Any person having paid this fee shall have a like amount deducted from any application fee which is paid within one year from the receipted date of the payment of this fee.

Section 47 19. The Board shall honor requests received in writing for copies of the essay-type questions which appeared on a previously administered General Bar Examination. Each such request shall be accompanied by a fee of .$6=00 10.00

Section 48 20. Each request from an applicant for a copy of such applicant’s answers to essay-type questions from a single General Bar Examination shall be accompanied by a fee of.$20.00 25.00

Section 40 21. The examinees using a typewriter to complete answers to the essay portions of the General Bar Examination shall pay a fee of .$10.00 15.00

ARTICLE VI, SECTION 5

Section 5. Timely applications for admission to the February administration of the General Bar Examination shall be postmarked or received not later than the first Tuesday in January.

Timely applications for admission to the July administration of the General Bar Examination shall be postmarked or received not later than the first Tuesday in June. Applicants seeking late filing into a General Bar Examination shall be permitted to do so upon payment of an additional fee of

(a) $25.00. as specified under Article V. Section 3(a). for those applications postmarked after the deadline and received on or before 30 days prior to administration of the examination.

(b) $50.00 as specified under Article V. Section 3(b) for those applications postmarked after the deadline and received 10 to 29 days prior to the administration of the examination.

(c) $100.00 as specified under Article V, Section 3(c) for those applications received less than 10 days prior to the administration of the examination.

Applications for admission into the Multi-state Professional Responsibility Examination (MPRE) shall be filed with the agency administering that examination within the time limitations set by that authority. The Multistate Professional Responsibility Examination (MPRE) is currently administered in March, August and November of each year.


text:
    Freddie Lee HALL, Appellant/Petitioner, v. STATE of Florida, Appellee/Respondent.
    Nos. 62696, 62697.
    Supreme Court of Florida.
    Oct. 5, 1982.

      Howard H. Babb, Jr., Public Defender and Jerry T. Lockett, Asst. Public Defender, Fifth Judicial Circuit, Tavares, for appellant/petitioner.
    Jim Smith, Atty. Gen. and Robert J. Landry, Asst. Atty. Gen., Tampa, for appel-lee/respondent.
   PER CURIAM.

Freddie Lee Hall appeals the trial court’s denial of his motion to vacate, set aside, or correct his conviction and sentence, applies to this Court for a stay of execution, and petitions for a writ of habeas corpus. We affirm the trial court’s denial and deny the petition for habeas corpus and application for stay of execution.

A jury convicted Hall of the first-degree murder of Karol Hurst and recommended that he be sentenced to death. The trial court followed that recommendation, and this Court affirmed both Hall’s conviction and death sentence. Hall v. State, 403 So.2d 1321 (Fla.1981).

On September 9, 1982 the governor signed Hall’s death warrant, effective for the week of October 1 through 8, and the department of corrections scheduled his execution for October 6. The trial court, in response to Hall’s claims that he had sought, but could not find, legal counsel, appointed the public defender to represent Hall for purposes of post-conviction relief. The trial court conducted a hearing on Hall’s motion to vacate, set aside, or correct his judgment and sentence on September 30 and issued an order denying both that motion and Hall’s application for a stay of execution on the following day. This detailed and conscientiously prepared order addresses each of the points raised and finds no merit to Hall’s contentions.

Before this Court, Hall claims that the trial court improperly denied the motion to vacate and that the denial of his motion for a continuance on September 30 violates due process of law and access to the courts. In a separate petition for writ of habeas corpus, Hall claims ineffective assistance of counsel at the appellate level. We, like the trial court, find no merit to Hall’s attacks on his conviction and sentence.

The majority of issues raised in the motion to vacate were raised on appeal. Most of the remaining issues could have been raised there. They are, therefore, not matters which will support a collateral attack. Adams v. State, 380 So.2d 423 (Fla.1980); Sullivan v. State, 372 So.2d 938 (Fla.1979). Several of the points raised, however, merit discussion.

Hall claims that he was not present during some of the jury selection and that his absence abrogated his fundamental constitutional rights. Francis v. State, 413 So.2d 1175 (Fla.1982). The trial court found Francis distinguishable from the instant case. We agree. Hall was not present at the roll call of prospective jurors or at the general qualification of prospective jurors. He was, however, present at all critical stages of the proceedings and available to consult with his counsel.

Regarding sentencing errors, Hall claims that because we reduced his sentence for a later-in-time crime to second-degree murder, Hall v. State, 403 So.2d 1319 (Fla.1981), that crime could not be used to show the aggravating circumstance of prior criminal history. We recently considered this point in denying a stay of execution for Hall’s codefendant, Mack Ruffin. Ruffin v. State, 420 So.2d 591, Case No. 62,631 (Fla. Sept. 29, 1982). As pointed out by the trial court, the reduced conviction still meets the criteria for finding past criminal history in aggravation. Additionally, Hall had also been convicted previously of an unrelated assault with intent to commit rape. The trial court is correct in concluding that, had we found that the reduction in the degree of homicide affected the death penalty in the instant case, we would have said so in our prior opinion.

Citing Enmund v. Florida, - U.S. -, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), Hall claims that the death penalty cannot be imposed because he did not actually and intentionally kill the victim. In Enmund the Supreme Court held that Florida’s death penalty statute cannot be applied to one who did not kill, attempt to kill, intend to kill, or intend that lethal force be used. We agree with the trial court that Enmund is distinguishable from the instant case. Hall provided the weapon used to kill Mrs. Hurst and was present at her death. Additionally, Enmund was an aider and abettor only to the underlying felony. Hall, on the other hand, was an aider and abettor to the homicide as well as the underlying felony. There is no doubt in the Court’s mind that Hall intended Mrs. Hurst’s death.

Hall presented the trial court with numerous other points regarding his sentencing proceeding. As did the trial court, we find no merit to them. Nothing urged would remotely affect the conviction or sentence in this case. At the worst, these claims point to alleged shortcomings by trial and appellate counsel.

Hall had two attorneys at trial, and these attorneys also represented him on appeal. In his order denying the motion to vacate, the trial court recited his familiarity with these attorneys’ work both in this case and in general. He “has always found both men to be well prepared, able, thorough, effective and competent attorneys.” Although available at the hearing, Hall did not choose to question them regarding their alleged incompetency, instead, evidently, choosing to let a cold record speak for itself.

Almost any attorney, including the one who conducted the trial, can look at a prior trial and point to things which could have been done differently; hindsight makes all of us better advocates. A defendant is assured of a fair trial, not a perfect one. Despite Hall’s contentions, we can find nothing in the record to support his claim of ineffective assistance of counsel.

Additionally, we find the denial of the continuance of these proceedings to have been proper. Hall’s current counsel notes that he had only fourteen days between his appointment and the scheduled execution and expresses his concern that Hall’s right to due process and access to the courts might be adversely affected by time constraints.

In the legal profession, as in many other facets of life, it is not the amount of time that one spends on something that counts, but, rather, the quality of what one accomplishes with the time available. Hall’s counsel has used his fourteen days well, and we commend him for the effort he has expended in representing his client and for the diligence with which he has pursued the task appointed to him. We find that Hall’s rights have been well protected and that Hall has been served thoroughly.

The trial court’s denial of the motion to vacate is affirmed, and the petition for writ of habeas corpus is denied. The application for stay of execution is denied.

It is so ordered.

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


author: ADKINS, Justice.

text:
    Edward SPURLOCK, Petitioner, v. STATE of Florida, Respondent.
    No. 61301.
    Supreme Court of Florida.
    Oct. 7, 1982.
    Melanie Ann Hines, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for respondent.
   ADKINS, Justice.

We have for review a decision by the District Court of Appeal, First District, Spurlock v. State, 403 So.2d 435 (Fla. 1st DCA 1981), which expressly and directly conflicts with a decision of another district court of appeal or of the Supreme Court on the same question of law. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

Petitioner, Edward Spurlock, was charged with and tried for armed robbery. At the jury charge conference held during his trial, the following exchange took place:

THE COURT: That motion is denied on the grounds it is contradictory to the other charge of the court to the jury about the consequences of their verdict. The penalty should not enter into their verdict at all. Therefore, I refuse to give the instruction on penalty following that great jurist by the name of Hugh M. Taylor, who also refused to give penalty and thus changed the law.
Are there any objections to the charges to be given or any request for additional charges?
MR. PAULK: None from the state, Your Honor.
MR. BODIFORD: None from the defendant, Your Honor.
THE COURT: Other than what the court indicated about penalty.

Petitioner was thereafter found guilty of the charges and sentenced to fifteen years imprisonment.

On his appeal of sentence to the first district court, petitioner moved for summary reversal and remand on the basis of this Court’s ruling in Tascano v. State, 393 So.2d 540 (Fla.1980), that jury instructions on penalties are mandatory. The district court initially granted the motion, but, on rehearing, vacated its order, holding that the jury instructions question had not been properly preserved for appeal in the manner required under Florida Rule of Criminal Procedure 3.390(d). See Spurlock v. State, 403 So.2d at 436. The case proceeded, the sole issue being whether the failure to instruct on penalties was error, and the district court in an unpublished order affirmed the trial court, ruling that petitioner had failed to properly preserve the point appealed. Petition for review by this Court followed.

We find that petitioner adequately preserved the jury instruction question for appellate review. Rule 3.390(d) provides:

No party may assign as error grounds of appeal the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects, and the grounds of his objection. Opportunity shall be given to make the objection out of presence of the jury.

Defense counsel requested that instructions on penalties be given and was refused. The court then asked whether there were “any objections to the charges to be given or any requests for additional charges,” to which both attorneys answered no, and then the court added, “other than what the Court indicated about penalty.” (Emphasis supplied.) Reading the “other than ...” statement in conjunction with the preceding inquiry about objections leads to the conclusion that the court recognized an objection on petitioner’s part. We think that the passage can be read as, “Are there any objections to the charges to be given ... [o]ther than what the court indicated about penalty?” Our recent decision in Thomas v. State, 419 So.2d 634 (Fla., 1982), further mandates the conclusion which we reach here. In Thomas, the trial court initially agreed to defense counsel’s request for jury instructions but, on reconsideration, refused to give them. The fifth district court, on appeal, found that no objection had been made to the failure to instruct and held that the issue had not been preserved for appeal. We disapproved the district court’s ruling on that issue, observing as follows:

The court . .. clearly understood Thomas’ position, and further argument or objection would have been futile. This factual situation satisfies the objectives of the contemporaneous objection rule — “to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal.” Castor v. State, 365 So.2d [701] at 703. We agree with both the fourth and first districts that, in a situation such as this, it is not necessary to say, “I object,” and state the grounds therefor where the record shows, clearly and unambiguously, that the request was made and that the trial court clearly understood the request and, just as clearly, denied that specific request.

Thomas v. State, at 636 (footnote omitted).

The situation here is exactly the type envisioned in Thomas. Clearly, the request was made and the trial court was aware of and denied it. Further argument would have been futile and thus was unnecessary.

As the Thomas decision indicated, the first district has receded from its ruling herein with regard to the requirements of rule 3.390(d). See Hubbard v. State, 411 So.2d 1312, 1314 (Fla. 1st DCA 1982). In that case, the court observed as follows:

The primary thrust of the rule is to insure that the trial judge is made aware that an objection is being made and that the grounds therefor are enunciated. We do not believe that the rule was intended to approve or disapprove a special word formula; we will not exalt form over substance by requiring that counsel use the magic words, “I object,” so long as it is clear that the trial judge was fully aware that an objection had been made, that the specific grounds for the objection were presented to the judge, and that the judge was given a clear opportunity to rule upon the objection.

The district court’s observations in Hubbard are quite reasonable and persuasive, and are particularly applicable in the case sub judice. The trial judge was aware of petitioner’s objection regarding jury instructions and had an opportunity to rule thereon. The missing “magic words” do not Concern us because the necessary substance was present.

The only other issue presented for review is whether our decision in Tascano should be applied in this case. We stated in Tascano that parties like respondent that had preserved on appeal the penalty instruction issue were to have the benefit of our interpretation of rule 3.390(d). Respondent contends that such “retroactive” application of the Tascano ruling was ill-considered, that Tascano should only be prospectively applied, and that petitioner is not entitled to the benefit of that ruling because his case commenced before the rendition of Tascano. Respondent’s arguments do not, however, persuade us that we erred in Tascano and we decline to modify the same.

Having found that the jury instruction question was preserved for review and that our ruling in Tascano is applicable here, we quash the district court’s ruling and direct that it remand this case for a new trial.

It is so ordered.

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

ALDERMAN, C.J., dissents.


text:
    Joe Henry SKIPPER, Petitioner, v. STATE of Florida, Respondent.
    No. 61121.
    Supreme Court of Florida.
    Oct. 7, 1982.
    Joseph S. Farley, Jr., of Mahon, Mahon & Farley, Jacksonville, for petitioner.
    Jim Smith, Atty. Gen. and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for respondent.
   ADKINS, Justice.

We have for review a decision by the District Court of Appeal, First District (Skipper v. State, 400 So.2d 797 (Fla. 1st DCA 1981)), which expressly and directly conflicts with a decision of another district court of appeal or of this Court on the same question of law. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

Petitioner, Joe Henry Skipper, was charged with and convicted of armed robbery. On appeal to the first district, petitioner, citing this Court’s decision in Tascano v. State, 393 So.2d 540 (Fla.1980), contended that the trial court had erred by failing to instruct the jury on penalties. The district court held that there existed no reversible error on that issue because “[although the supplemental record establishes trial counsel’s request for and denial of penalty instructions by the court, the record contains no objection in accordance with Rule 3.390(d), Florida Rules of Criminal Procedure.” 400 So.2d at 797.

The district court’s opinion makes it clear that a request for instructions was made and that in refusing it, the trial court was fully aware of defense counsel’s request and was given an opportunity to rule thereon. In light of our recent opinions in Spurlock v. State, 420 So.2d 875 (Fla.1982), and Thomas v. State, 419 So.2d 634 (Fla.1982), we hold that the issue was preserved for appellate review and direct that the district court remand this case for a new trial.

It is so ordered.

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

ALDERMAN, C.J., dissents.


text:
    THE FLORIDA BAR, Complainant, v. Wayne A. DRIZIN, Respondent.
    No. 61411.
    Supreme Court of Florida.
    Oct. 7, 1982.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Cynthia S. Prettyman, Bar Counsel, Fort Lauderdale, of The Florida Bar, for complainant.
    No appearance for respondent.
   PER CURIAM.

This disciplinary proceeding against Wayne A. Drizin, a member of The Florida Bar, is before this Court on complaint of The Florida Bar and report of the referee. No petition for review has been filed. Our jurisdiction is pursuant to article V, section 15, Florida Constitution.

The referee made the following findings and recommendations as to the three counts in the complaint:

FINDINGS OF FACT AS TO EACH ITEM OF MISCONDUCT OF WHICH THE RESPONDENT IS CHARGED.

After considering all of the pleadings and evidence before me, I find that:

1. Respondent, Wayne A. Drizin, is a member of The Florida Bar and subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.

As to Count I

2. On or about February 23,1981, William L. Summers contracted to sell to Respondent and Respondent contracted to purchase from Mr. Summers certain real property lying and being situate in Broward County, Florida, to wit:

Lots 3 and 4, Block 1 of NAVARRO ISLE, according to the Plat thereof, as recorded in Plat Book 15, at Page 40, of the Public Records of Broward County, Florida.

3. On or about March 3, 1981, the closing of such sale took place, whereat Mr. Summers delivered the deed to such real property to Respondent and Respondent delivered to Mr. Summers’ attorney his attorney’s trust account check in the amount of $73,430.59, such amount being the net due Mr. Summers and Mr. Summers’ attorney.

4. On March 5, 1982, the warranty deed conveying such real property to Respondent was recorded in the public records of Broward County, Florida.

5. On or about April 6, 1981, Respondent’s attorney’s trust account check was returned by the bank due to there being insufficient funds in the account to pay such check.

6. On or about April 14,1981, Respondent delivered to Mr. Summers’ attorney a check to replace the previously returned attorney’s trust account check, but on or about April 23, 1981 such replacement check was returned by the bank because no such account could be found by the bank.

7. On or about May 12, 1981, Respondent delivered to Mr. Summers’ attorney his attorney’s trust account check to replace the two previously returned checks, but on or about May 21,1981 such second replacement check was returned by the bank due to it being drawn on uncollected funds.

8. Around the end of May, 1981, Respondent deeded such real property back to Mr. Summers.

As to Count II

9. On or about March 30, 1981, Richard E. Zabel and Anita Grizaffi contracted to sell to Respondent and Respondent contracted to purchase from Mr. Zabel and Ms. Grizaffi all of the common shares of Cowboy’s, Inc.

10. Upon executing such contract, Respondent delivered to the escrow agent under such contract as a deposit two of his attorney’s trust account checks total-ling $125,000.00.

11. On or about April 7,1981, Respondent’s two attorney’s trust account checks were returned by the bank due to there being insufficient funds in the account to pay such checks.

12. At Respondent’s request, the escrow agent redeposited such checks, but they were again returned by the bank due to there being insufficient funds in the account to pay such checks.

As to Count III

13. On or about February 2, 1980, Arturo Velez and Alicia Velez entered into an agreement with Interdevco Development to purchase Bayberry Lakes Condominium Unit 2031, Building 38, located in Broward County, Florida.

14. At some time prior to May 20, 1981, Luz Penner, the daughter of Mr. & Mrs. Velez, delivered to Respondent a bank check in the amount of $27,000.00, to be held by Respondent pending the purchase of real property by her parents, Mr. & Mrs. Velez.

15. On or about May 20, 1981, the closing on the Bayberry Lakes Condominium unit took place, whereat the attorneys for Interdevco Development delivered the deed to such real property to Respondent and Respondent delivered to such attorneys his attorney’s trust account check in the amount of $18,-924.97, such amount being the cash to close.

16. Subsequent to such closing, but prior to June 16, 1981, Respondent’s attorney’s trust account check was returned by the bank due to there being insufficient funds in the account, was redeposited at Respondent’s request, and was again returned because of insufficient funds.

17. On or about June 16, 1981, Respondent delivered to the attorneys for Interdevco Development his attorney’s trust account cheek, drawn upon a different account, to replace the previously twice returned attorney’s trust account, but such replacement check was returned by the bank due to the account being closed.

18. Such trust account checks were never made good by Respondent, nor did Respondent return any funds to Luz Pen-ner or Mr. & Mrs. Velez.

RECOMMENDATIONS AS TO WHETHER OR NOT THE RESPONDENT SHOULD BE FOUND GUILTY OF MISCONDUCT

As to each count of the Complaint I make the following recommendations as to guilt or innocence:

As to Count I

I recommend that the Respondent, Wayne A. Drizin, be found guilty of violating Rule 11.02(3)(a) and (b), article XI, of the Integration Rule of The Florida Bar and Disciplinary Rules 1-102(A)(1), (4) and (6), and 9-102(A)(l) of the Code of Professional Responsibility. I specifically find that Respondent by his actions violated Section 832.05(4)(a), Florida Statutes (1979), in that he knowingly issued worthless checks in exchange for a deed to real property, a thing of value, and that he commingled his own funds with trust funds belonging to his clients.

As to Count II

I recommend that the Respondent, Wayne A. Drizin, be found guilty of violating Rule 11.02(3)(a) and (b), article XI, of the Integration Rule of The Florida Bar and Disciplinary Rules 1-102(A)(1), (4) and (6), and 9-102(A)(l) of the Code of Professional Responsibility. I specifically find that Respondent by his actions violated Section 832.05(2)(a), Florida Statutes (1979), in that he knowingly issued worthless checks for the payment of money, and that he commingled his own funds with trust funds belonging to his clients.

As to Count III

I recommend that the Respondent, Wayne A. Drizin, be found guilty of violating Rule 11.02(3)(a) and (b) and Rule 11.02(4), article XI, of the Integration Rule of The Florida Bar and Disciplinary Rules 1-102(A)(1), (4) and (6) of the Code of Professional Responsibility. I specifically find that Respondent by his actions violated Section 832.05(2)(a), Florida Statutes (1979), in that he knowingly issued worthless checks for the payment of money, and that he converted funds of his client to his own use.

This matter came on for final hearing upon Complainant’s Motion for Summary Judgment, such motion being based upon Respondent’s failure to answer Complainant’s Request for Admissions, such matters being deemed admitted by this Referee by order, dated January 20, 1982, and upon the uncontroverted affidavits attached to such motion. All pleadings in this matter were mailed to Respondent at his official record Bar address of 2715 East Oakland Park Boulevard, Fort Lauderdale, Florida. An attempt was made by the Complainant to locate Respondent, as evidenced by the affidavit submitted by the Complainant, but such proved of no avail.

RECOMMENDATIONS AS TO DISCIPLINE MEASURES TO BE APPLIED

I recommend as discipline in this matter that the Respondent, Wayne A. Driz-in, be disbarred from the practice of law in Florida. Such recommendation is based upon the cumulative and severe nature of the conduct outlined in the Complaint. The misappropriation of a client’s funds and the issuance of worthless checks warrant such discipline. The Florida Bar v. Charles, 201 So.2d 713 (Fla.1967).

We approve the findings and recommendations of the referee. Wayne A. Drizin is disbarred from the practice of law, effective immediately. Costs of these proceedings in the amount of $1,143.10 are assessed against Drizin.

It is so ordered.

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


text:
    THE FLORIDA BAR. In re C. Shelby DALE.
    No. 62239.
    Supreme Court of Florida.
    Oct. 7, 1982.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Jacquelyn Plasner Needelman, Branch Staff Counsel, Fort Lauderdale, of The Florida Bar, for complainant.
    C. Shelby Dale, Fort Lauderdale, in pro. per.
   PER CURIAM.

This matter is before the Court on Respondent’s Petition for Leave to Resign Permanently Without Leave to Reapply pursuant to article XI, Rule 11.08 of the Integration Rule of The Florida Bar.

The Petition indicates, inter alia, that:

1.Respondent has twice previously been reprimanded by the Florida Bar for violating the Florida Bar Integration Rule and two provisions of the Code of Professional Responsibility.
2. Respondent is currently involved in disciplinary proceedings emanating from four separate complaints. The Florida Bar takes the position in these complaints that the Respondent has violated the Integration Rule and several Disciplinary Rules of the Code of Professional Responsibility.
3. Respondent admits that he violated article XI, Rule 11.02(3)(a) of the Integration Rule and Disciplinary Rules 1-102(A)(1), 1-102(A)(4), 1-102(A)(6), 5-104(A), 6-101(A)(3), 7-101(A)(3), 9-102(B)(1), 9-102(B)(3), and 9-102(B)(4) in the case of The Florida Bar v. C. Shelby Dale, Case No. 61,159.
4. Respondent agrees to cooperate with any client security fund investigation conducted by The Florida Bar, understands he remains liable to make restitution in the cases described in the petition, and agrees to pay costs in the amount of $1231.86.
5. Respondent agrees to a waiver of confidentiality.
6. Respondent freely and voluntarily submits this Petition to Resign Permanently Without Leave to Reapply.

The Florida Bar has filed its response supporting the Petition for Leave to Resign Permanently Without Leave to Reapply under the conditions set forth above. The Court has reviewed same and determined that the requirements of Rule 11.08(3) are fully satisfied. The Petition for Leave to Resign Permanently Without Leave to Reapply is hereby approved and C. Shelby Dale’s name is stricken from the roll of attorneys in the State of Florida effective this date. Costs in the amount of $1,231.86 are assessed against respondent.

It is so ordered.

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


author: GRIMES, Judge.

text:
    CHICAGO INSURANCE COMPANY, Appellant, v. Jose C. DOMINGUEZ, M.D.; Associated Insurers, Inc.; Pennsylvania National Mutual Casualty Insurance Company; and Travelers Indemnity Company, Appellees.
    No. 81-2185.
    District Court of Appeal of Florida, Second District.
    Sept. 22, 1982.
    Rehearing Denied Oct. 25, 1982.
    Richard W. Driscoll of Miller, McKendree & Somers, Tampa, for appellant.
    Richard A. Bokor, Tampa, for appellee Jose C. Dominguez, M.D.
    Thomas J. Roehn of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for appellees Associated Insurers, Inc. and Pennsylvania Nat. Mut. Cas. Ins. Co.
    Charles P. Schropp of Shackleford, Farri- or, Stallings & Evans, P.A., Tampa, for appellee Travelers Indem. Co.
   GRIMES, Judge.

This appeal involves the extent of appellant’s exposure for uninsured motorist coverage under an umbrella policy of liability insurance.

While occupying a 1976 Lincoln Continental, appellee Jose C. Dominguez (Dominguez) was injured in an accident on August 11, 1976. Three insurance policies provided Dominguez with uninsured motorist coverage. Appellee Travelers Insurance Company (Travelers) afforded $100,000 uninsured motorist coverage under a policy issued to Dominguez’s professional association which specifically covered the Continental. Ap-pellee Pennsylvania National Mutual Casualty Insurance Company (Penn) had issued a family combination automobile policy covering Dominguez’s 1975 Cadillac with liability limits of $100,000/$300,000 and $15,-000/$30,000 of uninsured motorist coverage. The third policy, issued by appellant Chicago Insurance Company (Chicago), was a professional comprehensive personal catastrophe policy which was written as an umbrella liability policy over the Travelers policy with liability coverage of $1,000,000 and uninsured motorist coverage of $25,000.

Dominguez brought a suit for declaratory relief against Chicago seeking a determination that the Chicago policy afforded him $1,000,000 of uninsured motorist coverage. Travelers intervened in support of Dominguez’s position and further argued that Chicago was proportionately responsible with Travelers for the payment of uninsured motorist benefits to Dominguez. In another lawsuit, Dominguez had successfully obtained a finding of fact that Penn was obligated for $100,000 uninsured motorist coverage pursuant to section 627.727, Florida Statutes (1975), because Dominguez had not specifically rejected uninsured motorist limits equivalent to his liability coverage. As a consequence, when that lawsuit was consolidated with Dominguez’s action against Chicago, Penn took a position similar to Travelers with respect to the Chicago coverage.

The court ultimately ruled that Dominguez had $1,000,000 of uninsured motorist coverage under the Chicago policy because Chicago had not obtained from Dominguez a written rejection of uninsured motorist limits in the face amount of the policy. The court also ruled that the three companies collectively afforded Dominguez $1,200,000 in uninsured motorist coverage and directed them to pay any uninsured motorist award in the proportion that the limits of their respective policies bore to the total coverage.

Chicago contends that (1) the court erred in finding it responsible for more than $25,-000 in uninsured motorist coverage, and that (2) even if it is responsible for $1,000,-000 of uninsured motorist coverage, this coverage should be deemed excess over the first $200,000 of coverage provided by Penn and Travelers. There are no cross-appeals.

Section 627.727 has been consistently interpreted to mean that an insured is entitled to uninsured motorist coverage equal to the limits of his motor vehicle liability coverage unless he makes an affirmative and informed rejection of such coverage. Travelers Insurance Co. v. Spencer, 397 So.2d 358 (Fla. 1st DCA 1981); Lumbermen’s Mutual Casualty Co. v. Beaver, 355 So.2d 441 (Fla. 4th DCA 1978). Chicago does not attempt to argue that Dominguez rejected the higher limits of uninsured motorist coverage but suggests that such a rejection should not be required in the case of umbrella policies. It may be that those companies in the business of writing umbrella policies have not fully appreciated the necessity for obtaining a rejection of the higher limits. However, these policies do provide coverage which includes liability for motor vehicle accidents, and the statute delineates no exceptions. Thus, we follow our sister courts in holding that even an umbrella insurer must afford uninsured motorist coverage equivalent to the liability limits in the absence of an informed rejection by the insured. Cohen v. American Home Assurance Co., 367 So.2d 677 (Fla. 3d DCA 1979); Aetna Casualty & Surety Co. v. Fulton, 362 So.2d 364 (Fla. 4th DCA 1978); Aetna Casualty & Surety Co. v. Green, 327 So.2d 65 (Fla. 1st DCA 1976).

The more difficult question concerns the relationship between Chicago’s policy and the policies of Penn and Travelers. The pertinent provisions of the Chicago policy read as follows:

1. COVERAGE
Subject to the applicable provisions of this policy and all the terms, exclusions and limitations of this Section,
(B) UNINSURED MOTORISTS
The Company agrees to pay all sums up to $25,000 less the amount of the RETAINED LIMIT which the INSURED or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile or an UNDER-INSURED AUTOMOBILE, provided
(1) The Company’s liability hereunder shall be only in excess of the RETAINED LIMIT, and
(2) coverage hereunder for loss involving such uninsured or UNDERIN-SURED AUTOMOBILE shall apply only in accordance with the terms and conditions of underlying Uninsured Motorists insurance afforded to the INSURED at the time of loss, or in the absence thereof, Uninsured Motorists insurance afforded to the INSURED as of the effective date of this policy.
4. RETAINED LIMIT — LIMIT OF LIABILITY
B. As respects Coverage 1(b) the Company’s liability shall be only for loss in excess of the INSURED’s RETAINED LIMIT defined as the greater of:
(1) the total amount of insurance collectible by or payable to the INSURED under other Uninsured Motorists, Underinsured Motorists or Auto Liability insurance; or
(2) the minimum amount specified by the financial responsibility laws of the state in which the accident shall occur; and then up to an amount not exceeding $25,000 as the result of injuries sustained by any one accident, provided, such liability shall be reduced by the amount of the RETAINED LIMIT.

The Chicago policy conditioned its uninsured motorist coverage upon the maintenance of the underlying $100,000 coverage provided by Travelers. Thus, under the terms of the Chicago policy, it came into effect only when the underlying limits of at least one other insurance policy had been exhausted. This differs from policies which afford primary coverage but contain escape or other insurance clauses which may become applicable only in the event of other coverage.

The trial court recognized the unfairness of making Chicago proportionately liable with the other companies on a first dollar basis but felt constrained to do so by the rationale of Sellers v. United States Fidelity & Guaranty Co., 185 So.2d 689 (Fla.1966). In that case, our supreme court held that where two policies provide uninsured motorist coverage for an accident, any “other insurance,” “excess-escape” or “pro rata” clauses in the policies would be deemed invalid so that the insurers would be responsible for paying uninsured motorist benefits in proportion to their respective limits. The court later amplified this ruling in Allstate Insurance Co. v. Dairyland Insurance Co., 271 So.2d 457 (Fla.1972). Significantly, however, all of the policies under consideration in Sellers and Dairyland offered primary coverage, although each of them no doubt contained some form of excess or other insurance clause. Neither case involved an umbrella policy.

The purpose of an umbrella policy, which insures against all forms of personal liability, is to protect an insured from the consequences of a catastrophic accident. It provides extraordinarily high limits for a relatively modest premium. Its actuarial soundness depends upon the fact that it is designed only to come into play after the exhaustion of certain underlying insurance coverage. It was not originally contemplated that umbrella policies would be written with abnormally high uninsured motorist limits. However, since the law now requires umbrella insurers to offer such coverage, the underwriting principles ought to parallel those applicable to liability coverage.

We do not interpret Sellers or Dairy-land as requiring an umbrella insurer to prorate its payments of uninsured motorist benefits on a first dollar basis with primary carriers which afford uninsured motorist coverage on the same accident. The public policy considerations which may have influenced the result in those cases simply do not exist here. The insured remains totally protected with the same amount of coverage. The only difference is that the umbrella policy provides the second level of coverage, which is all that was ever contemplated.

Penn has a slightly better argument than Travelers because the Chicago policy designated only the Travelers policy as the underlying carrier. Thus, Penn can argue that its relationship to Chicago is more like that of the competing carriers in Sellers and Dairyland. Yet, Sellers and Dairyland unmistakably require Penn and Travelers to participate ratably for their combined coverage of $200,000. Therefore, in order to preserve the umbrella status of Chicago, we hold that its coverage does not come into play until the entire $200,000 provided by Penn and Travelers has been exhausted. See Allstate Insurance Co. v. Employers Liability Assurance Corp., 445 F.2d 1278 (5th Cir.1971), in which the court reached a similar conclusion in a liability context by examining the character of an umbrella policy.

We reverse the judgment insofar as it requires Chicago to participate proportionately in the uninsured motorist coverage on a first dollar basis. Otherwise, the judgment is affirmed.

OTT, C.J., and HOBSON, J., concur.


text:
    Antonio ACEA, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2404.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1982.
    Miguel Del Aguila, Miami, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HUBBART, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. United States v. Ross, - U.S. -, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); State v. Casal, 410 So.2d 152 (Fla.1982); Miranda v. State, 854 So.2d 411 (Fla.3d DCA 1978).

Review dismissed, Fla., 421 So.2d 517.


author: MILLS, Judge.

text:
    Keith Berkly HODGEN, Deceased Employee; Margaret Hodgen, Individually, and as mother and natural guardian of the minor children, Appellants, v. BURNUP & SIMS ENGINEERING and Crawford & Company, Appellees.
    No. AJ-289.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1982.
    Rehearing Denied Nov. 4, 1982.

      James D. Henry of Harris, Barrett & Dew, St. Petersburg, for appellants.
    Richard G. Davis of Fowler, White, Gil-len, Boggs, Villareal & Banker, P.A., St. Petersburg, for appellees.
   MILLS, Judge.

In this workers’ compensation appeal, Mrs. Hodgen contends that her husband’s fatal heart attack should have been com-pensable as an occupational disease pursuant to Section 440.151, Florida Statutes (1981). We decline to follow that line of reasoning and affirm.

Though there was evidence that Mr. Hodgen had undergone some unusual emotional stress, there was no evidence that the heart attack was due to any unusual physical exertion. Emotional strain alone is not sufficient to establish a causal connection between employment and heart failure. Richard E. Mosca & Co., Inc. v. Mosca, 362 So.2d 1340 (Fla.1978); City of Miami v. Rosenberg, 396 So.2d 163 (Fla.1981).

AFFIRMED.

ERVIN and WIGGINTON, JJ., concur.


text:
    VENICE RESTAURANT and Great American Insurance Co., Appellants, v. Sharon Vereeke THOMPSON, Appellee.
    No. AL-21.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1982.
    Rehearing Denied Nov. 3, 1982.
    Robert W. Elton, of Smalbein, Eubank, Johnson, Rosier & Bussey, Daytona, for appellants.
    Edward H. Hurt, of Hurt & Parrish, Orlando, and Bill McCabe, of Sheperd, McCabe & Cooley, Orlando, for appellee.
   PER CURIAM.

Appellant seeks reversal of the deputy commissioner’s order awarding $2,000 attorney’s fees pursuant to section 440.34(2)(a), Florida Statutes (1979). We agree that ap-pellee’s claim was not for medical benefits only. Accordingly, the deputy commissioner’s order assessing attorney’s fees against appellant is REVERSED.

LARRY G. SMITH, SHAW and JOA-NOS, JJ., concur.


text:
    Erling Knud Ove HANSEN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. AM-231.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1982.
    Rehearing Denied Nov. 4, 1982.
    Erling Kund Ove Hansen, Jr., pro se.
    No appearance for appellee.
   MILLS, Judge.

In February 1970, Hansen pled guilty to second degree murder and was sentenced to 75 years imprisonment. More than 12 years later, Hansen filed a motion for post-conviction relief alleging ineffective assistance of counsel. The trial court denied the motion on the ground that it affirmatively appeared from the motion that it was legally insufficient to justify relief.

Although we do not agree with the trial court’s ruling, this motion should have been dismissed because in June 1970 Hansen filed a motion for post-cónviction relief, alleging the same or similar ground as that alleged in the motion under consideration, which the trial court denied and upon appeal to this Court was affirmed. Hansen v. State, 247 So.2d 18 (Fla. 1st DCA 1971). Hansen is not entitled to file a second post-conviction motion alleging the same ground as the previously disposed of motion. Williams v. State, 392 So.2d 323 (Fla. 1st DCA 1981).

AFFIRMED.

ERVIN and WIGGINTON, JJ., concur.


author: ERVIN, Judge.

text:
    DIVISION OF WORKERS’ COMPENSATION, BUREAU OF CRIMES COMPENSATION, Appellant, v. Yale BREVDA, Appellee.
    No. AD-439.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1982.
    Rehearing Denied Nov. 5, 1982.

      George W. Butler, Jr., Tallahassee, for appellant.
    Stephen L. Rosen of Morris & Rosen, Tampa, for appellee.
   ERVIN, Judge.

The Bureau of Crimes Compensation appeals an order awarding certain benefits to the victim of a crime, and argues that the award entered was not made pursuant to the provisions of Chapter 960. We agree in part with appellant’s arguments and so reverse in part, affirm in part, and remand for further proceedings.

Appellant first argues that the deputy commissioner erred in finding that Brevda had suffered a serious financial hardship pursuant to the terms of Section 960.13(7), Florida Statutes (1979), and in not entering sufficient findings of fact to justify a lump sum award. The record, however, clearly reveals that the victim’s income was adversely affected as a direct result of the assault, in that during the fiscal year beginning July 1, 1978, and ending June 30, 1979, appellee derived $21,000 in profits from his business, while in the next succeeding year his income dropped to $3,000, much of that amount having been earned in the three months before the injury which occurred on October 13, 1979. Although claimant began receiving $500 in monthly benefits from a disability insurance policy within 30 days after the assault, which sum was reduced to $250 per month in March, 1980, those amounts did not entirely compensate him for his loss of income as well as his out-of-pocket expenses for medical care and related costs.

We therefore conclude that the deputy could lawfully determine that appellee suffered serious financial hardship as a result of loss of earnings or support and out-of-pocket loss incurred as a result of injury.

The more difficult question is whether the deputy was authorized, under the circumstances, to award appellee the lump sum amount of $3,500 to compensate him for his injuries. The deputy is empowered by Section 960.14(1) to convert compensation to be paid into a partial or total lump sum amount. The award, however, is limited by the provisions of Section 960.-13(3), providing that any award made shall be based either on claimant’s actual weekly wage, or if he cannot establish an average weekly wage, it “shall be in an amount equal to the arithmetic average between the maximum and the minimum awards listed in the applicable portions of ss. 440.15 and 440.12.” The deputy appropriately determined that due to the nature of appel-lee’s business (appellee was the owner of a business involving the design and installation of audio systems), and the incomplete documentary evidence as to his earnings, it was not possible for him to make a precise determination as to claimant’s average weekly wage or his lost earnings. Yet it does not appear from his order that he complied with the alternative means of computing claimant’s loss of income as required by Section 960.13(3). Accordingly, that portion of the award must be reversed and the cause remanded to the deputy in order for him to comply with the arithmetic average required by the statute. Having done so, the deputy may then, in the exercise of his discretion, impose a lump sum award. Cf. King Motor Co. v. Pollack, 409 So.2d 160 (Fla. 1st DCA 1982).

Appellant next contends that the deputy commissioner erred in directing the Bureau of Crimes Compensation to furnish to the claimant certain psychiatric treatment, arguing that because Section 960.-03(6) defines “victim” as “any person who suffers personal physical injury as a direct result of a crime,” there was no legislative intent to compensate victims of crime for any resulting psychiatric disorders. We disagree. Section 960.08 provides that out-of-pocket loss means unreimbursed expenses or indebtedness incurred for medical care, or other services necessary as a result of the injury upon which the claim is based. We consider that a fair reading of the two statutes in pari materia authorizes a deputy to order the Bureau to pay for psychiatric treatment if such treatment is considered necessary as a result of the injury. The deputy clearly had competent and substantial evidence before him in support of such award. Dr. Hollister, a neurologist and psychiatrist, diagnosed appellant as suffering from nervous tension and memory disorders resulting from a combination of physical and psychiatric problems. His opinion was based upon his observations of appellee, as well as a history given to him by appellee. By analogy, in workers’ compensation claims, an employer/carrier may be required to furnish psychiatric treatment if a claimant’s psychological disorder is causally referable to a physical injury. See City of Winter Park v. Bowen, 388 So.2d 1376 (Fla. 1st DCA 1980), and Lake v. Irwin Yacht & Marine Co., 398 So.2d 902 (Fla. 1st DCA 1981).

As to appellant’s contention that there is no authorization under Chapter 960 for the assessment of costs against the Bureau, appellee concedes the point, and we agree. See State, Department of Labor and Employment Security v. Cade, 400 So.2d 171 (Fla. 3d DCA 1981). Accordingly, the award granting costs is reversed.

Finally, we conclude that appellee’s attorney fee could not properly be levied against the Bureau because, as of the date of the contract between appellee and his attorney, the statute authorizing such fees, Section 960.19, Florida Statutes (1979), had been repealed. Brevda, however, argues that since his injuries occurred before the effective date of the repealer, his rights-to such fees had vested and could not be retroactively abrogated. In order to accept Brevda’s position we would necessarily have to find the existence of a vested statutory right or contractual right at the time of injury. A fee award is of course in derogation of common law and depends for its allowance upon statute or contract. Rivera v. Deauville Hotel, Employers Service Corp., 277 So.2d 265 (Fla.1973).

As to whether appellee had a vested statutory right to fees because his injury occurred prior to the repeal of the statute, we observe that an identical question has been raised and resolved contrary to appellee’s assertion in Bureau of Crimes• Compensation v. Williams, 405 So.2d 747 (Fla. 2d DCA 1981), where the court found that the claimant had no vested cause of action against the state for any recovery of fees since the right or remedy created by the statute dissolved upon repeal of the statute. The Williams court did not consider the impact, if any, that interpretations of the Workers’ Compensation Act might have on the issue before it. There are obvious similarities between the Crimes Compensation Act and Chapter 440, relating to workers’ compensation claims; for example, the requirement in Section 960.13(3) that any award be made pursuant to the schedule of benefits and degrees of disability set forth in Section 440.15.

On the other hand, there are obvious dissimilarities between the Workers’ Compensation Law and the Crimes Compensation Act. As to the former, the acceptance of the Workers’ Compensation Law by the employer, the employee, and the insurance carrier is deemed as constituting a contract between the parties that embraces the provisions of the law at the time of the injury. Sullivan v. Mayo, 121 So.2d 424, 428 (Fla.1960). The same rule applies to a worker’s right to attorney’s fees under the Act. Ship Shape v. Taylor, 397 So.2d 1199, 1201-02 (Fla. 1st DCA 1981). Such a voluntary contractual relationship between the parties is absent here, and it would require us to hold that whatever right the victim possessed to fees as of the time of injury was one of substance—rather than of procedure. If the right is viewed as falling within the latter category, as where it has not been reduced to judgment or otherwise executed, it falls within the repeal of the statute, absent a savings clause in the statute. See, e.g., Leland v. Andrews, 129 Fla. 429, 176 So. 418 (1937); 82 C.J.S. Statutes §§ 435, n. 1; 436 (1953); see also Jim Walter Homes, Inc. v. Gibbens, 608 S.W.2d 706, 712 (Tex.Civ.App.1980); Jacober v. Board of Commissioners of City of Covington, 607 S.W.2d 126 (Ky.App.1980); State Highway Commission v. Wieczorek, 248 N.W.2d 369, 372-373 (S.D.1976).

The above principle has been observed in a number of cases from out-of-state jurisdictions within the context of statutes permitting attorney fee awards. See, eg., Songer v. Farm Fire & Casualty Co., 91 Ill.App.3d 248, 46 Ill.Dec. 715, 414 N.E.2d 768, 772 (1980) (fee statute applied retroactively against insurer which had refused to pay a claim without reasonable cause, on the ground that there is no vested right in any remedy or procedural right); Bradfute v. Renton School District, No. 403,19 Wash.App. 638, 577 P.2d 157 (1978) (fee statute imposed retroactively upon school board’s bad faith non-renewal of employee’s contract was properly applied as the statute affected no contractual or vested right but dealt with practice, procedure or remedies); Buckalew v. City of Grangeville, 100 Idaho 460, 600 P.2d 136 (1979) (fee statute retroactively applied since it was remedial in nature, not affecting substantial rights); accord, Woodland Hills v. City Council of Los Angeles, 23 Cal.3d 917, 154 Cal.Rptr. 503, 593 P.2d 200 (1979).

If, however, a right has somehow vested under a statute, repeal of the statute does not divest the holder of the right. Mitchell v. Doggett, 1 Fla. 356 (1847). A substantive, vested right is “an immediate right of present enjoyment, or a present, fixed right of future enjoyment.” City of Sanford v. McClelland, 121 Fla. 253, 163 So. 513, 514-515 (1935). “[T]o be vested, a right must be more than a mere expectation based on an anticipation of the continuance of an existing law; it must have become a title, legal or equitable, to the present or future enforcement of a demand, . . . . ” Aetna Insurance Co. v. Richardelle, 528 S.W.2d 280, 284 (Tex.Civ.App.1975).

The Florida view as to whether the right to fees under a statute should be considered a substantive, vested right, or an inchoate, procedural right or remedy generally follows that of other jurisdictions. As observed, the Second District Court of Appeal in Williams has implicitly held that any right to fees is inchoate and does not become vested until awarded by judgment. Additionally, the Third District has implicitly applied the same principle, holding that the award of fees to a prevailing party under Section 57.105, Florida Statutes (Supp.1978), would not constitute a retroactive application of the statute which took effect after the institution of the action, but before the appeal was filed. Belcher v. First Nat. Bank of Miami, 405 So.2d 754 (Fla. 3d DCA 1981).

Consequently, we conclude that until judgment has been entered properly awarding fees, any right under a fee statute constitutes nothing more than an expecta-ble interest—not a vested right. Therefore, the appellee’s rights to fees, being merely remedial or procedural, cannot be deemed to vest upon the occurrence of the injury or upon filing of the action, but vests only upon a legally proper award pursuant to judgment.

Neither is appellee entitled to fees pursuant to any contractual theory. The stated intent of the Crimes Compensation Act is to provide, as a matter of moral responsibility, aid, care, and support to victims of crime. Section 960.02. As such, then, the Act may be deemed essentially as a governmental financial assistance program. Such laws are generally regarded as a type of gratuitous compensation. See Statutes Providing for Governmental Compensation for Victims of Crime, 32 A.L.R.3d 1446 (1970); 79 Am.Jur.2d Welfare Laws § 46 (1975). As gratuitous benefits, they can hardly be considered contractual in nature. In fact, it is generally held that welfare benefit laws — although creating an expectation of public benefits — do not confer a contractual right to receive the expected amount. See, e.g., Richardson v. Belcher, 404 U.S. 78, 80-81, 92 S.Ct. 254, 256-257, 30 L.Ed.2d 231 (1971); Koch v. Secretary of Department of Health, Education & Welfare, 590 F.2d 260, 263 (8th Cir.1978); De Rodulfa v. United States, 461 F.2d 1240, 1256 (D.C.Cir.1972), cert. denied, 409 U.S. 949, 93 S.Ct. 270, 34 L.Ed.2d 220.

Welfare benefits are generally acknowledged as stemming from a sense of public duty or obligation. 79 Am.Jur.2d Welfare Laws § 1. This sense of public duty is recognized in § 960.02, F.S., wherein the legislature stated that the care and support of crime victims are to be undertaken by the state “as a matter of moral responsibility.” These words suggest the possibility of a contract’s formation based on the doctrine of moral obligation as a substitute for consideration, but there is an impediment to this theory, because the general rule is that a “mere moral obligation, without anything more, is not a sufficient consideration for an executory promise.” 17 Am.Jur.2d Contracts § 130 (1964); Moral Obligation as Consideration for Contract — Modern Trend, 8 A.L.R.2d 787 § 1 (1949). Although there is authority recognizing a contractual relationship if the moral obligation arises from some prior legal liability, 17 Am.Jur.2d, Contracts at § 132, if the moral obligation is founded upon ethical motives wholly unconnected with legal liability, the general view is that such concerns do not furnish consideration for an executory contract. Id. at § 131. The case before us falls into the latter category. Accordingly, we must conclude that the legislature’s declaration of “a moral responsibility” to furnish benefits to victims of crimes does not invest such victims with an enforceable right in contract once the legislature, in its wisdom, determines to withdraw some or all of such benefits.

Affirmed in part, reversed in part, and .remanded for further consistent proceedings.

SHIVERS and WENTWORTH, JJ., concur.

      . Section 960.13(7) provides:
      If the commission or commission member, as the case may be, finds that the claimant, if not granted assistance pursuant to this chapter to meet the loss of earnings, support, or out-of-pocket loss, will not suffer serious financial hardship as a result of the loss of earnings or support and the out-of-pocket loss incurred as a result of the injury, the commission or commission member shall deny the award. In determining serious financial hardship, the commission or commission member shall consider all the financial resources of the claimant. Unless a total dependency is established, members of a family are considered to be partially dependent upon a homemaker with whom they reside, without regard to actual earnings.

      . The appellee’s indebtedness, directly attributable to his injuries, can properly be characterized as out-of-pocket losses as defined under Section 960.08, meaning “unreimbursed and unreimbursable expenses or indebtedness incurred for medical care .. .. ”


author: WENTWORTH, Judge.

text:
    DEPARTMENT OF NATURAL RESOURCES, Appellant, v. Odell SHEFFIELD and the Career Service Commission, Appellees.
    No. AK-337.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1982.

      Paulette V. Armstead, Asst. Dept. Atty., Tallahassee, for appellant.
    Brian Norton, Tallahassee, for appellee Sheffield.
    Arthur C. Wallberg, Asst. Atty. Gen., for appellee Career Service Com’n.
   WENTWORTH, Judge.

The Department appeals an order of the Career Service Commission reversing the dismissal of appellee Sheffield and ordering his reinstatement with back pay. We affirm in part and reverse in part.

On September 3, 1981, the Department notified Sheffield of its intent to terminate his employment. The letter contained specific allegations of misconduct occurring on specific dates between August 24, 1981, and September 1, 1981. • It also cited excessive absenteeism during June, July and August of 1981 as a further ground for dismissal. The letter informed Sheffield of his right to a predetermination conference if requested by September 11, 1981, to refute or explain the charges made against him. This notice was signed by Sheffield’s immediate supervisor, Burke Lane. Sheffield did not request a predetermination conference, and on September 15,1981, he was sent a notice of termination containing allegations identical to those in the September 3rd letter. However, this second notice was signed by the Bureau Chief, C.W. Hendry, and informed Sheffield of his right to appeal his dismissal, within 20 days, to the Career Service Commission. Sheffield did appeal, and it is the Commission’s order of reinstatement which the Department now appeals to this court.

The first point raised by the Department is that the Commission erred in limiting the scope of the proceedings before it to the specific times alleged in the notice of termination. Counsel for the Department of Natural Resources had indicated in her opening statement that she intended to introduce evidence that the specific acts alleged in the letters were only recent examples of a continuing pattern of behavior which had existed throughout Sheffield’s ten-year employment. We find no abuse of discretion on the part of the Commission in limiting the evidence to the allegations of which the employee had been provided notice. To have held otherwise could have resulted in a violation of due process as the employee could properly have come to the hearing prepared only to rebut the specific allegations in the notice. If the Department intended to base the dismissal on a continuing pattern of misconduct, it could have so alleged in the notices of intent to dismiss. Had the employee relied on evidence that the dismissal was wrongfully abrupt or severe he may have opened the door to evidence of the progressive pattern of misconduct. However, since the hearing never reached the stage of the employee’s presentation, there was no such evidence for the Department to rebut. Therefore, the Commission properly limited the evidence presented in the Department’s case in chief to the allegations contained in the notices.

The hearing never reached the defensive stage because the Commission entered a “directed verdict” against the Department at the close of its case. The sole reason for the Commission’s action was its finding that the initial notice of intent to dismiss did not comply with that part of Florida Administrative Code Rule 22-A10.-042(3), which provides that the initial notice of proposed action shall be signed by “the person authorized to make the final decision or his/her designated representative ... . ” The Department concedes that Burke Lane was not the person authorized to take final action but argues that he had “designated authority.” The Commission found otherwise, and that finding is supported by competent substantial evidence.

However, we agree with the Department that in this case the lack of authorized signature on the initial notice of intent was a purely technical error, not affecting the substantive or procedural rights of the employee. The initial notice informed Sheffield of his right to a predetermination conference. Had he availed himself of that right, a different result might be warranted. But he did not make such a request, and the second notice of termination was signed by one authorized to take final action and contained the same substantive allegations, informing Sheffield of his right to appeal to the Career Service Commission. Thus, the unauthorized signature did not effectively deprive the employee of any of the notice requirements found in Rule 22A-042.

Appellees rely upon this court’s decision in Department of Law Enforcement v. Allen, 400 So.2d 777 (Fla. 1st DCA 1981), in which we upheld similar action on the part of the Commission because the Department had failed to follow its own rule. However, the rule violation in Allen consisted of the Department’s attempt to dismiss an employee while totally by-passing one of the steps it had itself instituted for taking- such action. That step required the Department to reevaluate an employee who received an unsatisfactory evaluation within thirty days if he or she was not terminated within that period. The Department failed to so reevaluate the employee and attempted to dismiss her fifty-three days after the unsatisfactory rating. In that situation, the Department’s rule violation resulted in depriving the employee of a substantive procedural step which would have provided her with notice that her work had not improved. As discussed above, the technical error in this case had no such effect on the employee’s rights. We therefore find that the failure to properly sign the initial notice of intent to dismiss was harmless error. The case is remanded to the Career Service Commission for further proceedings and a determination on the merits.

Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.

McCORD and BOOTH, JJ., concur.


text:
    Frederick DORNAU, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AL-61.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1982.
    Rehearing Denied Nov. 4, 1982.

      Frederick Dornau, pro se, appellant.
    Malcolm S. Greenfield, Tallahassee, for appellee.
   MILLS, Judge.

Dornau’s presumptive parole release date (PPRD) came up for biennial review pursuant to Section 947.174(1), Florida Statutes (1981). Although the hearing examiner recommended reducing Dornau’s PPRD by 48 months, the Commission elected to reduce it by only 12 months. Dornau appeals the Commission’s action, and we affirm.

Dornau contends that the Commission violated his due process rights when it reduced his PPRD by only 12 months instead of the recommended 48 months. This contention is without merit because the hearing examiner’s recommendation is not binding on the Commission. Furthermore, Florida’s parole procedures create no constitutionally protected liberty interests. Hunter v. Florida Parole and Probation Commission, 674 F.2d 847 (11th Cir.1982).

We shall not address Dornau’s remaining contention because they relate to the establishment of his initial PPRD. The scope of a biennial review hearing is limited to determining whether new information has been gathered since the initial interview which might affect the PPRD. Section 947.174(1), Florida Statutes (1981).

AFFIRMED.

ERVIN and WIGGINTON, JJ., concur.


text:
    Jacqueline ANTHONY, Deceased, etc., Appellant, v. COLLIER COUNTY SCHOOL BOARD, et al., Appellees.
    No. AK-38.
    District Court of Appeal of Florida, First District.
    Oct. 12, 1982.
    Rehearing Denied Nov. 3, 1982.

      L. Barry Keyfetz of Keyfetz & Poses, P.A., Miami, for appellant.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellees.
   MILLS, Judge.

The claimant appeals an order dismissing her claim for failure to prosecute. We affirm.

The claim for compensation was filed 15 November 1979. The claim acknowledgment was mailed 4 December 1979. A motion to dismiss for failure to prosecute was filed 20 November 1981, more than two years after filing the claim but not two years from the mailing of the claim acknowledgment. No other activity took place, either on or off the record.

This raises for the first time the issue of whether the mailing of a claim acknowledgment letter by the Division of Workers’ Compensation is a filing of pleadings or actions “otherwise” within the meaning of Fla.W.C.R.P. 11(b).

We agree with the reasoning of the deputy commissioner:

I find that as a matter of law the preparation and mailing of a claim acknowledgment by the Division is a simple ministerial act and does not constitute a pleading or other record activity so as to determine a period of the statute of limitation.
The claim acknowledgment merely recites the receipt of the claim and its retransmission to the carrier of record and the named employer. This does not constitute service of process in the conventional sense. Due process of law and notice of the pending claim is provided for in the Statute and the Rules in that a certified notice of the final hearing with fifteen days notice must be sent by certified mail to the parties.
The Claimant also contends that the claim acknowledgment is ordinarily and routinely included in the records on appeal from workers’ compensation orders. While this is usual and customary, Rule 18 of the Workers’ Compensation Rules does not specifically list the claim acknowledgment as a document to be included mandatorily in the record on appeal. The Rule goes on to state that unless administrative or administerial papers are received specifically in evidence they shall not be included in the record on appeal. Thus, it seems the Rule contemplates the result advocated by the Employer/Carrier.

We note that this result furthers the important goal of expeditious resolution of workers’ compensation disputes.

AFFIRMED.

ERVIN and WIGGINTON, JJ., concur.