author: PER CURIAM. ADKINS, J., ALDERMAN, Justice,

text:
    THE FLORIDA BAR, Complainant, v. Frank RAGANO, Respondent. THE FLORIDA BAR. In re PETITION OF Frank RAGANO for Reinstatement.
    Nos. 59246, 59457.
    Supreme Court of Florida.
    July 23, 1981.
    Rehearing Denied Oct. 1, 1981.
    Scott K. Tozian, Tampa, and John A. Boggs, Bar Counsels, Tallahassee, for complainant.
    Michael Kinney of Marlow, Shofi, Ort-mayer, Smith, Connell & Valerius, Tampa, Joseph C. Jacobs of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, and John R. Parkhill, Tampa, for respondent.
   PER CURIAM.

These consolidated cases are before the Court by virtue of our jurisdiction to regulate the discipline of persons admitted to the practice of law. Art. V, § 15, Fla.Const. Case no. 59,246 is a disciplinary proceeding against Frank Ragano, a suspended member of The Florida Bar, and is before the Court on the complaint of The Florida Bar, the report of a referee, and the petitions of both parties for review. Case no. 59,457 is a proceeding initiated by Frank Ragano’s petition for reinstatement, and is before us upon the report of a referee and The Florida Bar’s petition for review thereof.

In case no. 59,246, the disciplinary complaint brought by The Florida Bar, the referee found that in August, 1970, Mrs. Jean Back employed respondent to pursue an appeal of a judgment in dissolution of marriage proceedings. Respondent prepared a written fee agreement pursuant to which he received $5000.00 for representing Mrs. Back on the appeal. The referee found, “The agreement was signed on or about August 10, 1970, at which time the fee agreement contemplated that Mr. Ragano would receive a minimum fee of $5000.00; however, he was going to seek the payment of his fee from Allan L. Back and would reimburse Mrs. Back for any moneys he received up to the $5000.00 from her husband.” That is, the respondent represented that Mrs. Back would receive the first $5000.00 in fees collected from her former husband.

Shortly after undertaking representation of Mrs. Back, respondent learned that the judgment of dissolution provided for sale of the marital home and that she was to receive $30,000.00 of the proceeds of the sale. On advice of respondent, Mrs. Back placed this money in trust with him so that it could be held in escrow, thereby avoiding any implied acceptance of or acquiescence in the financial terms of the judgment. The referee reports that this amount was received by respondent on August 21, 1970.

The referee found that on March 20,1971, Mrs. Back wrote to respondent asking, “Since the case has become more involved, will there be an additional fee charged other than the retainer fee?” Respondent wrote back on March 24, 1971, “I will look to you for no additional fee. If there are any additional fees to be paid, they will be paid by your husband.”

The appeal resulted in a remand for further proceedings at the trial court level. Back v. Back, 258 So.2d 20 (Fla.2d DCA 1972). The decision was rendered on February 16, 1972. The respondent testified that some time after the remand, he and Mrs. Back orally agreed that he would receive further fee payments from her, and that he would take the payments from the $30,000.00 he was holding in trust. Mrs. Back denied any such further fee agreement.

In the proceedings held after the remand, respondent presented expert psychiatric evidence that Mrs. Back was in a seriously unstable emotional condition during the earlier proceedings. The purpose of introducing this evidence was to show that she could not have freely and voluntarily entered into a property and support settlement agreement with her former husband, and thereby to have the judgment based on the agreement set aside. The reports that were presented clearly showed that Mrs. Back’s emotional problems were of a continuing nature.

The referee found that respondent kept the $30,000.00 in an account named “F. Ragano, Special Account.” Beginning in August, 1972, and over a period of about three years thereafter, he made a series of disbursements to Mrs. Back, totaling nearly eight thousand dollars. Respondent also spent $965.00 on the expenses of the litigation. The record contains respondent’s itemized list of these expenditures, including the date of each disbursement.

The referee found that “Mrs. Back has made repeated demands on Mr. Ragano for the return of the balance of her $30,000.00, which Mr. Ragano has refused to return . . . . ” The record shows that the first of these demands was made through another attorney in March of 1974. Mr. Ragano’s response to these demands was to maintain, as he did before the referee and now maintains before this Court, that the fee agreement was orally modified.

The referee’s report contains no specific finding on the factual question of whether there was an oral modification of the fee agreement. His findings on the issue are as follows:

Mrs. Back has made repeated demands on Mr. Ragano for the return of the balance of her $30,000.00, which Mr. Ra-gano has refused to return, although he has offered on one occasion to return $6,000.00 through an attorney in West Palm Beach as the unearned portion remaining on hand (Exh. No. 10, No. 11, Res.); and on another occasion indicated to the court that there was $10,000.00 remaining. (TR 89).
Mr. Ragano contends that in late 1972 or early 1973, as a result of discovery, he learned that Mr. Back’s net worth was such that it would not be likely that he could recover a fee for his services as he had contemplated being able to do. And thereafter, he reached an oral agreement with Mrs. Back that he could use the $30,000.00 towards costs and fees, and that he would ultimately account to her for his fees and expenses. Mrs. Back denies this. Mr. Ragano asserts that he was to have prepared an agreement, reducing to writing, this agreement with Mrs. Back, but he never got around to doing this. This position is also denied by Mrs. Back. Mr. Ragano apparently based his appeal of the Final Judgment of Dissolution of Marriage on the fact that Mrs. Back was in a poor and unstable mental condition at the time of the final hearing; but knowing this condition, he did not deal with her accordingly when he purported to modify his employment and fee agreement. Ragano admitted that it would have been a better course of conduct on his part if he had reduced his alleged oral agreement with Mrs. Back concerning subsequent additional fees to writing.
The record in this proceeding does not reflect any accounting by Mr. Ragano to Mrs. Back on the $30,000.00 deposited with him to hold for her, except his statement that he had earned $10,000.00 or $20,000.00 over and above the $5,000.00 which she had initially deposited with him under their fee agreement. Frank Ragano as the attorney for Mrs. Back pursued her cause with vigor and tenacity, and his legal ability and representation before the Circuit Court and Appellate Court is not an issue in this proceeding. However, as an experienced attorney, he entered into a fee agreement with his client, and after his representation had begun, he entered into a separate agreement with his client to hold separate funds of hers based upon his own recommendation as being necessary to protect her rights on appeal. Well over one year later, Mr. Ragano states that he and client modified the fee arrangement orally when he knew by virtue of dealing with the client and presentations which he had made to the court, that the client had emotional disturbances and was mentally unstable. Under such circumstances, particularly when the client has unequivocally denied any agreement whereby Mr. Ragano would have had a right to use any of the $30,000.00, and had repeatedly requested return of the $30,-000.00, the conduct of Mr. Ragano is subject to the closest scrutiny for overreaching or unfairness. Halstead v. Florence Citrus Grower’s Association, 139 So. 132 (Fla.1932).
Frank Ragano in the instant case, knowing of the emotional and unstable mental condition of Mrs. Back (TR 85, 86, 87), violated the Integration Rules of The Florida Bar and the Disciplinary Rules of the Code of Professional Responsibility in that if a new fee arrangement was arrived at while he was in the employment of Mrs. Back, he failed to deal with her at arms length and reduce to writing said agreement, although he had taken the precaution to do so upon his initial employment. His conduct is particularly subject to question because he was holding $30,000.00 of Mrs. Back’s money for safekeeping upon his own recommendation that it be turned over to him. Thereafter he failed to deliver the $30,-000.00 to her when requested, and he did not set up the necessary trust account, as required by Integration Rules of the Florida Bar.

The referee found that respondent violated the Integration Rule, article XI, rules 11.02(4)(a) and 11.02(4)(b). The referee also found that respondent violated the Code of Professional Responsibility, Disciplinary Rules 9-102(A)(2), 9-102(B)(3), and 9-102(B)(4).

Integration Rule, article XI, rule 11.02(4)(a) requires that trust funds be kept in a separate account “clearly labeled and designated as a trust account.”

Integration Rule, article XI, rule 11.-02(4)(b) pertains to trust account record keeping and requires that attorneys keep “records clearly and expressly reflecting the date, amount, source, and reason for all receipts, withdrawals, deliveries, and disbursements of the funds or property of a client.”

Disciplinary Rule 9-102(A)(2) provides:

DR 9-102. Preserving Identity of Funds and Property of a Client
(A) All funds of clients paid to a lawyer or law firm, including advances for costs and expenses, shall be deposited in one or more identifiable bank or savings and loan association accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
(2)Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.

Disciplinary Rule 9-102(B)(3) provides:

(B) A lawyer shall:
(3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.

Disciplinary Rule 9-102(B)(4) provides:

(B) A lawyer shall:
(4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.

The finding that respondent violated Rule 11.02(4)(a) by depositing the trust money in an account not clearly labeled and designated a trust account is supported by clear and convincing evidence. The referee’s findings of the remaining violations are not so clear and require further analysis and discussion.

The referee recommended that respondent “be suspended from the practice of law in Florida for a period of three (3) months, or until such time as he renders an appropriate accounting of the $30,000.00 which he admitted receiving from Mrs. Jean Back, to Mrs. Back and The Florida Bar.” Both parties seek review of the recommended discipline. The Florida Bar argues that the discipline is too lenient under the facts of the case. The respondent finds fault with the indefinite nature of the recommended discipline. He asserts that its effect would be to compel him to refund an earned fee in order to retain the privilege of practicing law, and asserts further that the controversy over the $30,000 is a “fee dispute” more appropriately to be settled in civil than in disciplinary proceedings.

Florida Bar Integration Rule article XI, Rule 11.02(4) provides in part:

(4) Trust funds and fees. Money or other property entrusted to an attorney for a specific purpose, including advances for costs and expenses, is held in trust and must be applied only to that purpose. Money and other property of clients coming into the hands of an attorney are not subject to counterclaim or setoff for attorney fees, and refusal to account for and deliver over such property and money upon demand shall be deemed a conversion. This is not to preclude the retention of money or other property upon which the lawyer has a valid lien for his services or to preclude the payment of agreed fees from the proceeds of transactions or collections. Controversies as to the amount of fees are not grounds for disciplinary proceedings unless the amount demanded is clearly excessive, extortionate, or the demand is fraudulent.

In order for the referee to have concluded that respondent’s actions regarding the money he held in trust warrants disciplinary action with restitution as part of the judgment, he would have had to find that respondent’s fee claim was “excessive, extortionate, or . . . fraudulent.” Moreover, the provision of Rule 11.02 that funds held in trust are not subject to set-off or counterclaim is qualified by the provision that payment of agreed fees from funds so held is not precluded. Therefore the whole question of whether the respondent’s conduct regarding the disposition of the $30,-000.00 warrants discipline depends upon a factual finding of whether there was an oral modification of the fee agreement.

As was observed above, the report of the referee does not specifically find one way or the other on this crucial factual issue. The referee’s conclusion that discipline is warranted is based on an inference from the circumstances that it was highly probable that respondent was guilty of some overreaching. In the absence of a specific finding of overreaching or fraud, supported by clear and convincing evidence, there is no basis upon which to find the ethical violations or to require restitution.

The finding of a violation of Rule 11.-02(4)(a) is supported by clear and convincing evidence and is approved. The findings of violation of Rule 11.02(4)(b) and Disciplinary Rule 9-102(B)(3), both pertaining to record keeping, are not so supported and are disapproved. The findings of violations of Disciplinary Rules 9-102(A)(2) and 9-102(B)(4) cannot be approved in the absence of a finding on the issue of whether or not there was a further oral agreement on the payment of fees and expenses from the $30,000.00. We agree with the referee, of course, that Mrs. Back has a legal right to a precise accounting of the money, but the enforcement of that right is not the function of this Court in disciplinary proceedings.

Taking into consideration the respondent’s disciplinary history, we conclude that the appropriate discipline for the misconduct found in this proceeding is a three-month suspension from the practice of law, followed by a two-year period of probation, and we hereby impose such discipline. We decline to make reinstatement conditional upon “an appropriate accounting” because the question of the parties’ respective rights to the $30,000 is a controversy over fees and therefore is not ground for discipline “unless the amount demanded is clearly excessive, extortionate, or the demand is fraudulent.” Fla.Bar Integr.Rule, art. XI, Rule 11.02(4). That is not to say that Ragano is. not obliged, as any attorney, to account to his client for funds delivered to him.

In ease no. 59,457, the reinstatement proceeding, the referee found as follows:

1. The crime of income tax evasion of which the petitioner was convicted did not result from an attorney-client relationship nor did it involve the misappropriation of any client's funds, any act of malpractice or any act of violence. That, further, the petitioner has been convicted of no other criminal offense, has successfully completed a term of probation and has obtained the restoration of his civil rights.
2. That during the term of active practice of the petitioner he enjoyed a reputation among the judges, attorneys and public officials of Hillsborough County of legal scholarship, competency of practice and integrity in his dealings with other lawyers and the courts. That since his suspension the petitioner has worked to maintain his competency in the law.
3. That on and after the date of his suspension from the practice of law the petitioner has adhered to the provisions of the disciplinary order. In such regard the Referee takes note that this Court did not find that the offense of which the petitioner stood convicted warranted disbarment.
4. That notwithstanding that the petitioner does not agree with his prosecution for tax evasion from the standpoint of the application of the law to the particular facts which occasioned such prosecution, the petitioner appears to bear no malice resulting therefrom. Additionally he has demonstrated a scene [s/e] of repentance and rehabilitation which leads this Referee to conclude that he will be involved in no criminal activity in the future.
5. That the petitioner has demonstrated through his own testimony a dedication to the scholarship of the law and a true desire to regain a position of respect within the legal community. This Referee therefore concludes that in the event petitioner is reinstated to the practice of law, he will conduct his dealings with clients, attorneys and the courts in a sincere, competent and careful manner consistent with the Code of Professional Responsibility.
In arriving at the foregoing conclusions the Referee is mindful of the fact that there are judgments outstanding against the petitioner, that there is now pending before this Court a separate disciplinary proceeding and that during the early term of his suspension the petitioner conducted his checking account privilege with several banks in less than a commendable fashion. It is upon these grounds that the representative of the Florida Bar has opposed this Petition. The Referee has in no way considered the pendency of other disciplinary proceedings which as of this date remain unresolved nor the merits of the facts giving rise to such proceedings.
In regard to the outstanding judgments it appears that the petitioner, during his lifetime, has demonstrated no ability to generate income in any endeav- or other than the practice of law and currently lacks the financial ability to satisfy such obligations. For such reason the Referee concludes that the non-payment of such obligations does not constitute grounds for denial of the Petition.
The mishandling of the petitioner’s checking account privileges raises a more serious question as to whether or not he meets the legal criteria for reinstatement. Were these practices to be occurring on a continuing basis today or had they occurred without reasonable explanation in the recent past, the recommendation of the Referee might well be different from that reflected herein. In finding that such matters should not prevent the petitioner’s reinstatement, the Referee concludes that such practices resulted from the emotional unrest of the petitioner resulting from his suspension and suddenly finding himself without the ability to earn a living and without the apparent skills to readily engage in another income generating occupation.
It is noteworthy that petitioner within a reasonable time recognized the errors of his thinking, took steps to repay the amounts owed and ceased such practices. The petitioner has testified that he does not now maintain a checking account. The Referee thus concludes that the petitioner can take no further steps to rehabilitate himself in respect to such practices, has in fact rehabilitated himself therefrom and that the passage of additional time from the date of such practices would be of no useful purpose to either the petitioner or this Court.
The Referee further recognizes that the Florida Bar in its active opposition to the Petition has been unable to produce any witnesses to testify contrary to the conclusions of the petitioner’s witnesses.
It is the finding of the undersigned Referee that the Petitioner, Frank Raga-no, meets the criteria for reinstatement and it is my recommendation that the Petition for Reinstatement be granted upon such conditions as this Court shall find to be just.

We approve the findings of the referee and the recommendation that Frank Raga-no be reinstated to the practice of law, after serving the additional period of three months suspension imposed in case no. 59246.

Having reviewed the proceedings in both cases, and taking into consideration respondent Frank Ragano’s disciplinary history, we hereby order that his suspension from the active practice of law shall continue for three months from the date of this order. At that time he will be automatically reinstated, subject to a probationary period of two years. During the probationary period, Mr. Ragano shall file confidential quarterly reports with the Executive Director of The Florida Bar. These reports shall state the current balance of all trust accounts maintained by Mr. Ragano, together with a statement of the source of each deposit therein and a description of the transaction in connection with which each deposit is received. Mr. Ragano shall also report on the status of all legal proceedings, now pending or newly instituted, in which he is named as a defendant. Furthermore, Mr. Ragano, within 30 days of the date this opinion is filed, shall supply to Mrs. Back and The Florida Bar a full and complete written accounting of the $30,000 fund delivered to him by Mrs. Back or at her direction.

We also assess the costs of both of these proceedings against Mr. Ragano in the amount of $1,0220,40.

It is so ordered.

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

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

ADKINS, J.,

dissents: “I would not add the additional three months suspension, nor would I require reports of the trust accounts.”

ALDERMAN, Justice,

concurring in part, dissenting in part.

I agree, in case No. 59,246, that Mr. Ragano should receive an additional three months’ suspension. In case No. 59,457, however, because of the additional misconduct that occurred after he was suspended, I would deny Mr. Ragano’s petition for reinstatement.


source: Caselaw Access Project

author: PER CURIAM. OVERTON, Justice,

license: Public Domain

text:
    Derwin B. SMITH, II, et al., Petitioners, v. CITY OF CLEARWATER, et al., Respondents.
    No. 59382.
    Supreme Court of Florida.
    July 23, 1981.
    Rehearing Denied Oct. 2, 1981.
    John T. Allen, Jr., St. Petersburg, for petitioners.
    Tom R. Moore, Clearwater, for respondent City of Clearwater.
    Andrew J. Rodnite, Asst. County Atty., Clearwater, and Charles L. Siemon of Ross, Hardies, O’Keefe, Babcock & Parsons, Chicago, Ill., for respondent Pinellas County Planning Council.
    Jim Smith, Atty. Gen., Ken Tucker, Deputy Atty. Gen., and Thomas R. Tedcastle, Asst. Atty. Gen., Tallahassee, for State of Florida, amicus curiae.

      Alfred W. Clark, Deputy Gen. Counsel, Tallahassee, for Department of Environmental Regulation, amicus curiae.
   PER CURIAM.

The petition for review reflected probable jurisdiction in this Court. After having heard oral arguments and upon further consideration and analysis of the matter, we have determined that Smith v. City of Clearwater, 383 So.2d 681 (Fla.2d DCA 1980), conflicts with neither Estuary Properties, Inc. v. Askew, 381 So.2d 1126 (Fla.1st DCA 1979), nor Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla.1981). In their brief on the merits and during oral argument petitioners alleged conflict between the instant district court opinion and Gulf & Eastern Development Corp. v. City of Fort Lauderdale, 354 So.2d 57 (Fla.1978); we likewise find no conflict with that case. Accordingly, the petition for review is dismissed.

It is so ordered.

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

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

OVERTON, Justice,

dissenting.

I dissent. I find clear conflict with Gulf & Eastern Development Corp. v. City of Fort Lauderdale, 354 So.2d 57 (Fla.1978), with regard to the due process notice requirements of new zoning. Additionally, in my view, this case is not controlled, on the merits, by Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla.1981); Graham is distinguishable on the facts. I believe that the record in this cause clearly establishes that the action of the city was arbitrary, abusive of the zoning process, and intentionally confiscatory. I would accept jurisdiction and reverse.

ADKINS, J., concurs.


author: McDONALD, Justice.

text:
    Al WEINER, Petitioner, v. Sally WEINER, Respondent.
    No. 59776.
    Supreme Court of Florida.
    July 23, 1981.
    Rehearing Denied Oct. 2, 1981.
    Barry Richard of Roberts, Miller, Bag-gett, LaFaee, Richard & Wiser, Tallahassee, for petitioner.
    Richard Karl Goethel of Goethel & Garcia-Vidal, Coral Gables, for respondent.
   McDONALD, Justice.

In this case we review Weiner v. Weiner, 386 So.2d 1251 (Fla.3d DCA 1980), because of conflict with Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Art. V, § 3(b)(3), Fla.Const. We agree that no abuse of the trial court’s discretion has been shown and that the district court improperly substituted its judgment for that of the trial court regarding the award of periodic alimony.

On appeal from a final judgment in a dissolution proceeding, the district court increased the amount of periodic alimony awarded respondent by the trial court. The alimony award was but one of several issues comprising the final judgment. In proceedings spanning more than three years, the trial court had the unenviable task of adjusting the economic situations of the parties in dissolving their twenty-five-year marriage.

An appellate court may reverse an inadequate award of alimony when there has been a clear abuse of discretion by the trial judge. Firestone v. Firestone, 263 So.2d 223 (Fla.1972). We recently discussed judicial discretion and review thereof in Cana-karis and need not repeat that discussion here. Applying the Canakaris test to this case, we are unable to discern a basis for the district court’s reversal of the alimony award. Judge Nesbitt’s dissent is correct on this issue.

That part of the district court’s opinion regarding the alimony award is quashed, and this cause is remanded with instructions to reinstate the trial court’s alimony award.

It is so ordered.

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

BOYD, ENGLAND and ALDERMAN, JJ., dissent.


author: ADKINS, Acting Chief Justice. BOYD, Justice,

text:
    Sara Jane SEDDON, et al., Petitioners, v. Fred HARPSTER and Doris Harpster, his wife, et al., Respondents.
    No. 56771.
    Supreme Court of Florida.
    July 30, 1981.
    Rehearing Denied Sept. 30, 1981.

      Sanford A. Minkoff of the Law Offices of Christopher C. Ford, Tavares, for petitioners.
    Robert F. Vason, Jr., Mount Dora, for respondents.
   ADKINS, Acting Chief Justice.

We have before us a decision of the Second District Court of Appeal in which the following question was certified to this Court pursuant to article V, section 3(b)(4), Florida Constitution (1972):

Did the seven-year period of continual possession necessary to establish adverse possession under color of title begin on the effective date of Chapter 74-382, or could it have begun before that time where:
1. The claimant’s paper title did not properly describe the disputed property; yet,
2. The disputed property had “been protected by a substantial enclosure” for more than seven years prior to 1975?

Seddon v. Harpster, 369 So.2d 662, 666-667 (Fla. 2d DCA 1979).

This is basically a boundary dispute in which the plaintiff’s ejectment action succeeded in the face of a defense of adverse possession. We shall refer to the parties by name in an attempt to avoid unnecessary confusion.

In 1964 Seddon’s parents, her predecessors in interest, bought twenty acres of rural land in Lake County. A survey of the tract at that time showed the western boundary, i. e., the north-south midsection line, to be a county-maintained clay road. Relying on this, the Seddons erected a fence adjacent to the clay road.

In 1971 the Harpsters purchased property which, according to the legal description, abutted the western boundary of the Sed-don land. This made the north-south midsection line the common boundary between the two tracts. In 1975 the Harpsters brought an ejectment action against Sed-don, claiming she was wrongfully occupying the eastern portion of their property. The Harpsters contended that the true north-south midsection line ran east of the clay road. Seddon answered, inter alia, that even if the true boundary was east of the road, she owned the property up to the fence adjacent to the road by virtue of adverse possession.

Initially we note that the district court correctly affirmed the trial court’s rejection of Seddon’s claim of adverse possession “without color of title.” § 95.18, Fla.Stat. (1975). This form of adverse possession may arise in the absence of a written instrument, judgment or decree describing the disputed property, but only if the claimant has paid taxes on that property. Seddon had paid taxes based on the legal description in her deed which used the correct north-south midsection line as a guide. The disputed property beyond that line and up to the fence would not have been covered. Failure to pay taxes necessarily defeats a claim of adverse possession “without color of title.” § 95.18, Fla.Stat. (1975). The trial court, sitting without a jury, accepted the Harpster’s expert witness’ testimony that the correct north-south midsection line ran about 400 feet east of the clay road. In rendering final judgment for the Harpsters, the court noted that:

Under the present day reading of Section 95.16, Florida Statutes, there can be no doubt that the Defendant [Seddon] has met every requirement of acquiring title to property by adverse possession save and except for one. The Defendant [Seddon] has not held such property according to the provisions of Section 95.16, Florida Statutes for a period of seven years. Such section of the Florida Statutes only became law on January 1, 1975. Prior to that, Section 95.16 and 95.17 as interpreted by the Supreme Court of the State of Florida in Meyer v. Law, 287 So.2d 37 was the law.

369 So.2d at 664 (emphasis in original). The trial court refused to apply section 95.16, Florida Statutes (Supp.1974), retroactively because it allegedly worked a substantive change from the prior law as interpreted in Meyer v. Law, 287 So.2d 37 (Fla.1973). The district court affirmed.

Meyer v. Law dealt with the statutory predecessors to the present statute. These sections read in pertinent part:

Whenever it appears that the occupant, or those under whom he claims, entered into possession of premises under claim of title exclusive of any other right, founding such claim upon a written instrument as being a conveyance of the premises in question, or upon the decree or judgment of a competent court, and that there has been a continued occupation and possession of the premises included in such instrument, decree, or judgment for seven years, the premises so included shall be deemed to have been held adversely . . .

Section 95.16, Fla.Stat. (1973). (emphasis supplied).

For the purpose of constituting an adverse possession by any person claiming a title founded upon a written instrument, or a judgment or decree, land shall be deemed to have been possessed and occupied in any of the following cases: . . .
(2) Where it has been protected by a substantial enclosure. All contiguous land protected by such substantial enclosure shall be deemed to be premises included within the written instrument, judgment, or decree, within the purview of § 95.16 . . .

Section 95.17(2), Fla.Stat. (1973) (emphasis supplied). In Meyer, the majority interpreted the foregoing statutes to mean that adverse possession under color of title could only arise where the claimant had “paper” title accurately describing the disputed property. Under Meyer, Seddon could not have acquired the land by adverse possession under color of title because at the time from which she claims possession, her deed’s legal description did not include the area between the true boundary and the fence.

Chapter 74-382, sections 11 and 12, Laws of Florida, was enacted at the legislative session immediately following the Meyer decision. By combining the two preceding sections, the new statute clearly states that one does not have to have paper title correctly describing the disputed property as long as that area is contiguous to the described land and “protected by a substantial enclosure.” § 95.16, Fla.Stat. (Supp.1974).

The crucial issue, then, is whether chapter 74-382 may be applied retroactively in favor of Seddon. The presumption is against retroactive application in the absence of an express manifestation of legislative intent to the contrary. Foley v. Morris, 339 So.2d 215 (Fla.1976). There is no such expression in chapter 74-382, sections 11 and 12, Laws of Florida. Seddon’s argument that these provisions only clarified existing law and so may be applied retroactively must fail. The legislature is presumed to be aware of existing law and the judicial construction of former laws on the subjects of its enactments. Foley v. State, 50 So.2d 179 (Fla.1951). It is also presumed that when the legislature amends a statute, it intends to accord the statute a meaning different from that accorded it before the amendment. Reino v. State, 352 So.2d 853 (Fla.1977). We can find no basis to afford retroactive application to chapter 74-382, sections 11, 12, Laws of Florida.

Our response to the question certified must therefore be that the seven-year period of continual possession necessary to establish adverse possession under color of title begins on the effective date of chapter 74-382, Laws of Florida, i. e., January 1, 1975. The effective date is unaffected by the fact that although claimant’s paper title did not properly describe the disputed property, that area had been protected by a substantial enclosure for more than seven years prior to 1975.

The decision of the district court of appeal is approved.

It is so ordered.

OVERTON, ALDERMAN and MCDONALD, JJ., concur.

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

BOYD, Justice,

concurring in part and dissenting in part.

I concur in the result insofar as the decision holds that appellant is not entitled to the disputed property by reason of adverse possession, but I disagree with the majority’s pronouncement that the statutory changes made by chapter 74-382, Laws of Florida, affected this Court’s decision in Meyer v. Law, 287 So.2d 37 (Fla.1973).

Sections 11 and 12 of chapter 74-382 amended sections 95.16 and 95.17, Florida Statutes (1973). The two sections were then consolidated when the next codification was published. § 95.16, Fla.Stat. (1974 Supp.). Section 95.16 provides:

(1) When the occupant, or those under whom he claims, entered into possession of real property under a claim of title exclusive of any other right, founding the claim on a written instrument as being a conveyance of the property, or on a decree or judgment, and has for 7 years been in continued possession of the property included in the instrument, decree, or judgment, the property is held adversely. If the property is divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract. Adverse possession commencing after December 31, 1945 shall not be deemed adverse possession under color of title until the instrument upon which the claim of title is founded is recorded in the office of the clerk of the circuit court of the county where the property is located.
(2) For the purpose of this section, property is deemed possessed in any of the following cases:
(a) When it has been usually cultivated or improved.
(b) When it has been protected by a substantial enclosure. All contiguous land protected by the enclosure shall be property included within the written instrument, judgment, or decree, within the purview of this section.
(c) When, although not enclosed, it has been used for the supply of fuel or fencing timber for husbandry or for the ordinary use of the occupant.
(d) When a known lot or single farm has been partly improved, the part that has not been cleared or enclosed according to the usual custom of the county is [to be considered as] occupied for the same [length of] time as the part improved or cultivated.

An examination of sections 95.16 and 95.-17, Florida Statutes (1973), together with the changes made therein by chapter 74-382 reveals that the substance of the law was not changed, but only the style. The changes consisted of substituting the term “property” for “premises” and deleting unnecessary language. There is nothing in the changes to indicate that the legislature intended to overrule the holding of Meyer v. Law.

Since chapter 74-382 did not make any substantive changes, the question of its retroactive application is not before the Court and so cannot provide the basis for jurisdiction as a certified question. However, the district court held that “it is not necessary to have paper title accurately describing the disputed land in order to establish adverse possession under color of title, so long as the disputed property is ‘protected by a substantial enclosure’ and the other conditions for establishing adverse possession are met.” Seddon v. Harpster, 369 So.2d 662, 665 (Fla. 2d DCA 1979). This holding is in direct conflict with Meyer v. Law, and provides us with an alternative basis for jurisdiction. Art. V, § 3(b)(3), Fla.Const.

In Meyer v. Law we stated that “persons who claim land adversely under a paper title relating to a certain area, and who fence in or cultivate an area beyond that which is described in the paper title, but who do not pay any taxes on the additional area, can secure good title by adverse possession only to the portion of land described by the deed, decree, or other written instrument of record.” 287 So.2d at 40. This construction of section 95.16 assures all property owners that there will be some notice of adverse claims in the public record. Without such notice property owners would have to survey their property every seven years to protect themselves from the possibility of encroaching neighbors adversely possessing their land. Construing the statute to allow for adverse claims without any public notice would deprive landowners of their property without due process of law.

The concept of due process of law in adverse possession cases is not entirely new. In the past courts have presumed landowners had notice of adverse claims from the fact of mere possession. This presumption encouraged and facilitated claims to abandoned property when there were vast amounts of unproductive and worthless property in the state. Presently real estate in Florida is extremely valuable as an investment regardless of its present use. There are many landowners who, though they may not be using their land, have no intention of abandoning it. Since due process is an evolving concept, it should be applied in a manner to reflect these changes in our society.

In Meyer v. Law we established the new standard for providing sufficient notice. We held that claims based on color of title must be noticed by some written instrument of record. We noted that claims not based on color of title must be noticed by the payment of taxes. In either instance landowners are able to check public records to ascertain whether someone is adversely claiming their property. Any interpretation of the statute not requiring public notice of adverse possession claims would be unconstitutional.

I realize that what I’m saying flies in the face of hundreds of years of precedent. The law of adverse possession in this country developed from the common and statutory law of England. As far back as a century ago, the courts in this country held that a person could adversely possess mistakenly occupied land that was enclosed by an artificial or natural barrier. See H. Buswell, The Statute of Limitations and Adverse Possession (1889); R. Tyler, A Treatise on the Remedy of Ejectment and the Law of Adverse Possession in the United States (1874). This law developed when much of the continental United States was unsurveyed wilderness. At that time the courts adopted a public policy that as much land should be put to use as possible. The courts imbued a presumption of ownership on the persons who actually possessed the property.

Our society today has radically changed from our society of a hundred years ago. We have become so urbanized that the trend is toward adopting a public policy of preserving land in its natural state. Art. II, § 7, Fla.Const. It is now much more common for persons to own land without actually possessing it. Now the payment of taxes is presumptively a more reliable indi-cia of ownership than possession. When an owner pays taxes on his land, he is publishing to the world, “This is my land.”

Because of these fundamental changes in our society, I believe that any interpretation of section 95.16 which would bar a record title holder’s claim to property that is claimed to be adversely possessed without notice in the public records would be unconstitutional. Such a statute would operate to deprive a record title holder of his property without due process in violation of the Fifth Amendment to the United States Constitution and article I, section 9 of the Florida Constitution.

Such an interpretation of the statute would also violate several other state constitutional provisions. Article I, section 2, guarantees all natural persons the right “to acquire, possess and protect property. . . This section guarantees a person the right to protect his property which implies the right to protect his property interest in a court of law. A similar provision, article I, section 21, guarantees persons the right of access to the courts. A person is denied these rights when he is unable to discern from public records that his property interests are being challenged. Finally, article X, section 6 prohibits the taking of property for a private purpose. Allowing one person to fence in neighboring lands to which he has no paper title and claim them as his own is tantamount to authorizing the taking of private property for a private purpose. All of these state and federal constitutional provisions protecting private property interests have been in existence for a long time, just as the concept of adverse possession. The reason they have not been relied upon before in striking down adverse possession statutes is that our society in the past has given more credence to property interest claims based on possession than on paper title. With modern technology and computerized transactions our society is now more capable of accurately establishing legal interest to property through paper title than through possession. Therefore these constitutional provisions should now be interpreted in favor of those whose claims to property are asserted through transactions which are of public record.

Since Seddon’s deed did not purport to convey the disputed portion of land, and since she has not paid taxes on that land, she has not fulfilled the requirements of adverse possession under color of title pursuant to section 95.16, Florida Statutes (1974 Supp.), as I interpret that statute. I would therefore quash the district court’s decision and remand this case with directions that the portions of the trial court’s order inconsistent with this opinion be vacated.


author: BOYD, Justice. SUNDBERG, Chief Justice, and ENGLAND and ALDERMAN, Justices,

text:
    The CITY OF MIAMI, Robert Murphy, and Garland Watkins, Petitioners, v. Charles H. WARDLOW, Jr., Respondent.
    No. 57440.
    Supreme Court of Florida.
    July 30, 1981.
    Rehearing Denied Oct. 2, 1981.

      George F. Knox, Jr., City Atty., and Mik-ele S. Carter, Asst. City Atty., Miami, for petitioners.
    James F. Gilbride and Lewis N. Brown of Gilbride & Heller, Miami, for respondent.
   BOYD, Justice.

This cause is before the Court on petition for certiorari to review the decision in Wardlow v. City of Miami, 372 So.2d 976 (Fla. 3d DCA 1979). Because the decision is in conflict with Cripe v. Board of Regents, 358 So.2d 244 (Fla. 1st DCA), cert. denied, 365 So.2d 710 (Fla.1978), we have jurisdiction. Art. V, § 3(b)(3), Fla.Const. (1972).

Respondent Charles Wardlow, a former City of Miami police officer, brought this action against the City of Miami, its chief of police Garland Watkins, and police internal security officer Robert Murphy. The complaint was in seven counts and sought both damages and injunctive relief. The only portion of the complaint with which we are concerned is that count which asserted that Lieutenant Murphy had slandered Wardlow in a telephone conversation with a captain of the City of Key West police department.

The Key West police captain initiated the call in order to inquire about the background of Wardlow, who had applied for employment with the Key West police department. In response to the inquiry, Murphy explained that Wardlow had resigned from his job with the City of Miami while under investigation on an accusation of bigamy. Murphy also told the officer that Wardlow had once passed a worthless check.

The trial court granted Murphy’s motion for summary judgment as to the count in question on the ground that his comments were absolutely privileged. Wardlow appealed this ruling and the district court of appeal held that Murphy’s privilege was not absolute but qualified. The appellate court remanded for a determination of whether there was actual malice.

The district court acknowledged that Murphy “had the right and duty to communicate an evaluation of a former police officer (with appellee’s department) to an inquiring official from another police department.” Wardlow v. City of Miami, 372 So.2d at 979. Nevertheless, the court concluded that Murphy’s duties were “not sufficiently exalted to warrant absolute immunity.” Id. at 978. Thus the district court’s decision suggests, and respondent argues, that the absolute privilege of communication is limited to persons serving in a high executive capacity, regardless of whether the giving of the evaluation is within the scope of the defendant’s duties. We disagree with this interpretation of the law.

It has long been clear that a high-ranking officer of the executive branch of the national government, in explaining to the public the reasons for a decision or policy, enjoys absolute immunity from suit for libel. Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). This Court has held that the chief executive officer of a chartered county government, in reporting to his legislative overseers, is absolutely privileged to freely explain a decision or policy, and is thus immune from suit based on defamatory statements contained in his report. McNayr v. Kelly, 184 So.2d 428 (Fla.1966).

In both of these decisions, the facts were that the defendants were in high-ranking, political positions within the governmental entity in question. Also, the statements attacked as defamatory were to some extent of a public nature. The courts held the statements privileged because in each instance reporting upon or explaining the reasons for actions or policies was within the scope of the officer’s executive function. The issue now is whether the absolute privilege that protects such public statements by executive officials also extends to non-public statements by officers of the executive branch of government under circumstances such as we have here, or whether the qualified privilege that would attach to such comments if made by a private person applies. See Leonard v. Wilson, 150 Fla. 503, 8 So.2d 12 (1942); Putnal v. Inman, 76 Fla. 553, 80 So. 316 (1918); Abraham v. Baldwin, 52 Fla. 151, 42 So. 591 (1906); Axelrod v. Califano, 357 So.2d 1048 (Fla. 1st DCA 1978); Belcher v. Schilling, 349 So.2d 185 (Fla. 3d DCA 1977), cert. denied, 358 So.2d 128 (Fla.1978).

In Cripe v. Board of Regents, 358 So.2d 244 (Fla. 1st DCA 1978), the associate director of the Division of Planning and Analysis of the University of Florida was sued for comments made in evaluating an employee’s job performance. The court acknowledged that there was “uncertainty as to how far down the ladder absolute privilege extends.” Id. at 245. However, the court perceived a trend in the direction of emphasis upon the nature of the officer’s duties rather than the level of his rank. The court recognized an absolute privilege based on the fact that the associate director was required by administrative rule to evaluate the job performance of employees.

We agree with the court’s analysis in Cripe concluding that the controlling factor in deciding whether a public employee is absolutely immune from actions for defamation is whether the communication was within the scope of the officer’s duties.

Respondent argues that Cripe should be distinguished from this case because there was no administrative rule requiring Lieutenant Murphy to explain the circumstances under which respondent left his job with the City of Miami police department. However, at the time of Wardlow’s departure, Murphy was Deputy Commander of Internal Security and was personally involved in the investigation of accusations of bigamy made against Wardlow. Murphy had also been approached by representatives of the state attorney’s office who were handling a case in which Wardlow was accused of passing a worthless check. Since Murphy was the internal investigating officer for these matters, it would have been his job to report on them to his superiors. This was never done because the investigation ceased when Wardlow resigned from the police department. Two years later when the inquiries came from another city’s police department, Murphy was serving as Commander of Internal Security. He was in charge of investigating all complaints against city police officers. Clearly it was within the scope of his duties to respond to the inquiries.

While the communication at issue here was privately made, as distinguished from the situation in Barr v. Matteo, we perceive that an important public function was involved. Murphy’s job involved attempting to ensure that no unfit persons were allowed to serve as police officers in the City of Miami. An ancillary function, but very important to the public, would be to communicate the results of his department’s investigations to inquiring officials from another municipal police department. Therefore, the lack of a rule requiring the reporting or disclosure of such information does not distinguish this case from Cripe. “[T]he same considerations which underlie the recognition of the privilege as to acts done in connection with a mandatory duty apply with equal force to discretionary acts. . . . ” Barr v. Matteo, 360 U.S. at 575, 79 S.Ct. at 1341.

We therefore quash that portion of the district court’s decision that is before us for review and remand with directions that the trial court’s order of summary judgment be affirmed.

It is so ordered.

ADKINS, OVERTON and McDONALD, JJ., concur.

SUNDBERG, Chief Justice, and ENGLAND and ALDERMAN, Justices,

dissenting:

We would follow the Restatement of Torts 2d, § 598A in its original form or as proposed for revision in Tentative Draft 20 of Restatement 2d (1974), and approve the decision of the district court below.


author: ADKINS, Justice.

text:
    Willie MURRAY, Petitioner, v. STATE of Florida, Respondent.
    No. 58608.
    Supreme Court of Florida.
    July 30, 1981.
    Rehearing Denied Oct. 1, 1981.
    Richard L. Jorandby, Public Defender, and Jon May, Asst. Public'Defender, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., and Phillip D. Havens, Asst. Atty. Gen., Daytona Beach, for respondent.
   ADKINS, Justice.

By petition for certiorari we have for review a decision of the District Court of Appeal, Fifth District (Murray v. State, 378 So.2d 111) (Fla. 5th DCA 1980), which allegedly conflicts with the decision of the District Court of Appeal, First District, in Tascano v. State, 363 So.2d 405 (Fla. 1st DCA 1978), on the same point of law.

The defendant, (petitioner here), was charged with aggravated battery and entered a plea of not guilty. At the conclusion of the evidence in a trial by jury the defendant requested the court to instruct the jury as to the appropriate penalties pursuant to Florida Rule of Criminal Procedure 3.390. The request was denied and no instructions on penalties were given. The jury returned a verdict of guilty of aggravated battery as charged in the information.

Upon appeal, the district court of appeal held that Fla.R.Crim.P. 3.390 mandated an instruction on the applicable penalty up on request. The District Court of Appeal, First District, in Tascano v. State, supra, held that the trial judge could exercise his discretion in giving a penalty instruction even though a request was made. We quashed the decision in Tascano v. State, supra, and held that, upon request of either the state or the defendant, it is mandatory that an instruction be given on the maximum and minimum sentences which may be imposed. Tascano v. State, 393 So.2d 540 (Fla.1980).

The district court of appeal in the case sub judice held that Rule 3.390 had a mandatory meaning, but affirmed the conviction of the defendant on the basis of harmless error. If this mandatory duty could be circumvented on the basis of the harmless error rule, the effect of the mandatory provision in the rule would be negated.

We have jurisdiction and the only question before this Court has been decided in Tascano v. State, supra. Briefs on the merits would not be helpful.

The decision of the district court of appeal is quashed and the cause is remanded with instructions to reverse the judgment of conviction and to remand the same to trial court for a new trial.

It is so ordered.

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

ALDERMAN, J, dissents.


author: PER CURIAM. SUNDBERG, Chief Justice,

text:
    Robert Ike COMBS, Appellant, v. STATE of Florida, Appellee.
    No. 59425.
    Supreme Court of Florida.
    July 30, 1981.
    Rehearing Denied Oct. 5, 1981.

      Jack 0. Johnson, Public Defender, and David A. Davis, Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., and James S. Pur-dy, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant, Robert Ike Combs, was convicted of murder in the first degree. The trial judge imposed the death sentence in accordance with the jury’s advisory sentence recommendation. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. (1980). The appellant has asserted no trial errors in this appeal but contends the sentence of death was improperly imposed. We have reviewed the entire record and find the evidence is clearly sufficient to support the conviction. We further find the imposition of the death sentence for this robbery-execution slaying was appropriate.

The relevant facts presented at trial principally by a surviving victim, Robert Perry, are as follows:

On June 1, 1979, Robert Perry was paid approximately $100 for one week’s work, which he placed in an envelope in his pocket. He and a friend, Darrell Sharpe, went to a bar in Bonita Springs to drink beer and shoot pool. About midnight they moved on to a second bar and drank some more beer. Sometime later, appellant Combs approached Perry, who knew Combs slightly, and asked him for a ride home. Perry was not leaving yet, but Combs said he would wait. About that time, Perry’s girl friend, Gay Lynn Parks, drove up in her mother’s car. After smoking some marijuana, Perry, Parks, and Sharpe decided to leave the bar. Combs came out of the bar as they were leaving and got inside Perry’s van with Perry and Sharpe. Parks followed in her car. They drove to Sharpe’s house where Sharpe left the group and Parks parked her car and climbed into the van with Perry and Combs.

As the three drove off, they began talking about a party and Combs said he knew where one was. Perry then took Combs to his house and then to a trailer where Combs bought a gram of cocaine for Parks and Perry. After testing the drug, Perry paid Combs $80 for it. Combs then told Perry about a shortcut to the party, and after traveling along some dirt roads, they pulled into a cleared area. The three climbed out of the van and walked into the woods about 30 or 40 yards. Combs, who was in the lead, stopped, turned and pointed a western-type revolver at Parks. Parks became angry, saying, “Oh, goddamn. I should have known better than this. What are you doing?” In response, Combs told them to lie down. They refused, and Parks continued cursing Combs, saying, “I ain’t laying down, you motherfucker. What the hell do you think you’re doing?” Combs insisted they lie down since they were dead anyway. Eventually, Parks and Perry sat down.

Combs demanded money and the cocaine, and Parks kept cursing him. Perry never did give Combs any money, but Parks took a small purse containing the cocaine from her pants and threw it several feet from Combs, saying, “Here, go find it motherfucker.” Combs, angered by this, said he was going to shoot Perry first so Parks could see him die. Parks started to cry, she told Perry she loved him, Perry told Parks he loved her, and then Combs shot Parks in the head. (He eventually fired two other shots into her head. Any of the three could have caused death and either of two of them would have caused instant death.) Perry charged Combs after the first shot into Parks, but he was shot in the head and fell to the ground unconscious. He awakened shortly and felt someone stuffing something into his pocket. (He later found the envelope but without the remaining money.) Perry played dead and in a few minutes heard the person move off into the bushes.

Perry crawled out of the woods to the van but did not attempt to get in. Instead he sat on the ground a few minutes, and soon the van drove away. Perry went to the nearest house and summoned help. The police arrived and, with the assistance of police dogs, Parks’ dead body was found. At 7:45 that morning, the van was found about two miles from the murder scene and one-half mile from Combs’ house.

Shortly after the van was found, the appellant, Combs, was arrested at his home and taken to the police station, where he was immediately identified by Perry. Combs and Perry knew each other, and there was no issue concerning identity. There was a search made of appellant’s room and van. None of the items seized were critical in the conviction, and no motion to suppress was filed by the appellant.

The appellant testified in his own behalf and admitted being with the principal witness, Perry, and the victim, Parks, on the evening of the murder and further testified that they smoked marijuana and snorted cocaine together on that evening. The appellant denied taking Perry and Parks into the woods and committing this murder. The jury returned a verdict of guilty of first-degree murder.

At the sentencing hearing neither party presented additional testimonial evidence in aggravation or mitigation, but each side presented argument based upon the testimony presented in the cause. The jury returned a recommendation of death.

The judge imposed the death penalty, finding that “the murder of GAY LYNN PARKS . . . was committed while the defendant was engaged in, or was attempting to engage in, another violent felony, to wit: The robbery of ROBERT PERRY.” Further, “the murder of GAY LYNN PARKS . . . was committed in a cold, calculated and premeditated manner without any pretense of moral or legal justification when according to his plan and design, the defendant lured the victim to her death in a remote, wooded located [sic].” Further, “[t]he capital felony was especially heinous and cruel in that the victim was defenseless, yet the defendant coldly and cruelly taunted the victim about her imminent death and proceeded to execute GAY LYNN PARKS despite her pleas and entreaties.” The trial court determined that “the defendant, who is twenty years of age, had no significant history of prior criminal activity although he had previously pled guilty to third degree burglary and had been placed on probation for two years” and that “the defendant, throughout the day prior to the murder, had, by his own account, consumed alcoholic beverages and indulged in cocaine. However, the Court finds that despite indulgence in these substances, the defendant’s capacity to appreciate the criminality of his conduct and to conform his conduct with the requirements of law had not been substantially impaired.” The trial court concluded that “the aggravating circumstances substantially outweigh the mitigating circumstances and require the imposition of the death penalty.”

The appellant contends on this appeal that the trial court erred in imposing the death sentence, asserting that: (a) the trial judge improperly retroactively applied the aggravating circumstance that the murder was committed in “a cold, calculated and premeditated manner without any pretense of moral or legal justification” as set forth in section 921.141(5)(i), Florida Statutes (1979), which became effective July 1, 1979, thirty days after the murder was committed; (b) the trial court improperly held the appellant’s capacity to appreciate the criminality of his conduct could be considered in mitigation only if substantially impaired, as opposed to impaired to a lesser degree, by beer, marijuana, and cocaine; (c) the trial court was in error in finding the aggravating circumstance that this murder was heinous, atrocious, and cruel since, although it was tragic, it was not shockingly evil or outrageously vile; (d) the finding by the trial court that the murder was committed in the course of a robbery and was cold, calculated, and premeditated amounted to an impermissible doubling up of aggravating factors, contrary to Provence v. State, 337 So.2d 783 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977); (e) the finding of the trial court of both the aggravating circumstance of heinous, atrocious and cruel, and cold, calculated and premeditated constitutes two different names for the same aspect of the murder and therefore, in effect, is a doubling up; and (f) the trial court erred by limiting the jury consideration of mitigating factors. We find each of these contentions to be without merit, and only the first requires discussion.

We find no error in the application of section 921.141(5)(i), Florida Statutes, which became effective July 1, 1979, adding as an aggravating circumstance:

(i) The capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification.

If the legislature had added an entirely new factor as an aggravating circumstance, then retroactive consideration would have violated the prohibition against ex post fac-to laws as set forth in Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), and in State v. Williams, 397 So.2d 663 (Fla.1981). However, the addition by the legislature of paragraph (i) to section 921.141(5), in fact only reiterates in part what is already present in the elements of premeditated murder, with which petitioner was charged and which the evidence clearly supports. Although consideration of aggravating factors must be limited to those set forth in the statute, Elledge v. State, 346 So.2d 998 (Fla.1977); Purdy v. State, 343 So.2d 4 (Fla.), cert. denied, 434 U.S. 847, 98 S.Ct. 153, 54 L.Ed.2d 114 (1977); the elements of the specific offense charged are and must be inherently part of the circumstances taken into consideration when imposing a sentence in a capital case as well as in other criminal cases. As Justice Adkins stated in State v. Dixon, 283 So.2d 1, 9 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1951, 40 L.Ed.2d 295 (1974):

The aggravating circumstances . . . actually define those crimes — when read in conjunction with Fla.Stat. §§ 782.04(1) [homicide statute] and 794.01(1) [former rape statute], F.S.A.—to which the death penalty is applicable in the absence of mitigating circumstances.

What, then, does paragraph (i) add to the statute? In our view, it adds the requirement that in order to consider the elements of a premeditated murder as an aggravating circumstance, the premeditation must have been “cold, calculated and . . . without any pretense of moral or legal justification.” Paragraph (i) in effect adds nothing new to the elements of the crimes for which petitioner stands convicted but rather adds limitations to those elements for use in aggravation, limitations which inure to the benefit of a defendant. In the instant case both felony murder and premeditated murder were charged and proven, and the evidence is overwhelming that the murder was “committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification.” The trial court’s finding that aggravated circumstance (i) existed was proper.

With regard to the other aggravating circumstances expressly found to exist in this cause, we agree it was appropriate for the trial judge to find upon the record that this premeditated murder was committed while the appellant was engaged in a robbery and that this murder was heinous, atrocious, and cruel. The circumstances are factually very similar to the robbery-execution slaying of Sullivan v. State, 303 So.2d 632 (Fla.1974) (Overton, J., concurring), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976), in which the death penalty was upheld. For the reasons expressed, we find that the imposition of the death sentence was appropriate in this cause.

Counsel for appellant, in his oral argument before this Court, stated that he did not address any trial errors but he may find it necessary to raise issues in later post-conviction relief proceedings under Rule of Criminal Procedure 3.850 concerning whether trial counsel provided this appellant with reasonably effective assistance of counsel in the trial now here on review. Section 921.-141(4) requires that the “judgment of conviction and sentence of death shall be subject to automatic review by the Supreme Court . . . after certification by the sentencing court of the entire record. . . . ” We construe that terminology to require a full record review for trial error and a determination of the sufficiency of the evidence, as well as the appropriateness of the imposition of the death sentence. If appellate counsel in a criminal proceeding honestly believes there is an issue of reasonably effective assistance of counsel in either the trial or the sentencing phase before the trial court, that issue should be immediately presented to the appellate court that has jurisdiction of the proceeding so that it may be resolved in an expeditious manner by remand to the trial court and avoid unnecessary and duplicitous proceedings, State v. Meneses, 392 So.2d 905 (Fla.1981). No trial court error has been presented to us, and from our review of the record we find none. We find the evidence is not only sufficient but overwhelming for the conviction of this appellant of first-degree murder.

We affirm the conviction and the sentence of death.

It is so ordered.

ADKINS, BOYD, OVERTON and ALDERMAN, JJ., concur.

SUNDBERG, C. J., concurs as to the conviction and dissents as to the sentence with an opinion, with which ENGLAND and MCDONALD, JJ., concur.

SUNDBERG, Chief Justice,

concurring in part and dissenting in part.

I concur in the affirmance of the conviction. I feel, however, that the retroactive application of section 921.141(5)(i), Florida Statutes (1979), violates the state and federal prohibitions against ex post facto laws. Therefore, I respectfully dissent from the affirmance of the sentence of death.

The trial court’s use of section 921.-141(5)(i) as an aggravating circumstance directly contravenes two recent decisions, Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), and State v. Williams, 397 So.2d 663 (Fla.1981). Weaver sets forth the two elements which must be present in order for a law to be ex post facto: “it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” In Williams, this Court relied on Weaver in formulating the following twofold test for determining whether a law was ex post facto: (1) does the law attach legal consequences to crimes committed before the law took effect, and (2) does the law affect the prisoners who committed those crimes in a disadvantageous fashion? Under the facts in the present case, both these requirements are satisfied. The new law did attach legal consequences to crimes committed before the law took effect because an additional aggravating circumstance was considered which affected the determination of the sentence. The second requirement is met because the likelihood of receiving a death sentence is increased by the addition of the new subsection. A finding of this additional aggravating circumstance could shift the balance toward death.

Based on the fact that section 921.-141(5)(i) was unconstitutionally applied to the defendant, the judge improperly considered a non-statutory aggravating circumstance. There were also two mitigating circumstances in this case, thus Elledge v. State, 346 So.2d 998 (Fla.1977), requires that this case be remanded to the trial judge for resentencing.

ENGLAND and McDONALD, JJ., concur.

      .In an unreported order in Francis v. State (No. 50,127) dated June 20, 1978, we relinquished jurisdiction to permit appellant to file a motion pursuant to Florida Rule of Criminal Procedure 3.850, raising a claim of ineffective assistance of counsel. Appellant was subsequently adjudged not to have been accorded effective assistance of counsel and was granted a new trial. See also Antone v. State, 382 So.2d 1205 (Fla.), cert. denied, 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980), in which this Court remanded for testimony on an application for new trial based upon a relationship, between the state and a key trial witness, that was unknown to either side until the appeal was pending.

      . 450 U.S. at 29, 101 S.Ct. at 964.

      . At 665.

      . 1 must confess that it is beyond my powers of comprehension to understand how the majority can seriously contend that the addition of subsection (i) as an aggravating circumstance “in-urefs] to the benefit of a defendant.”


author: McDONALD, Justice. ENGLAND, Justice,

text:
    Grover E. HARLESS, et al., Petitioners, v. Bonita KUHN, etc., Respondents.
    No. 60051.
    Supreme Court of Florida.
    July 30, 1981.
    Rehearing Denied Oct. 5, 1981.
    Joseph S. Kashi of Grimmett, Conrad, Scherer & James, Fort Lauderdale, for petitioners.
    Joel Miller of Miller & Squire, Fort Laud-erdale, for respondents.
   McDONALD, Justice.

After reversing a judgment predicated upon the plaintiffs’ being found eighty percent negligent in an accident case and directing the entry of a judgment for the entire amount of damages found by the jury, the Fourth District Court of Appeal certified the following question to this Court.

Does the entry of a default against a defendant for violation of discovery orders in a negligence action preclude that defendant from reducing the amount of his liability by proof of the plaintiff’s comparative negligence?

We respond to the question by stating that the answer lies in the sound judicial discretion of the trial judge imposing the sanction as evidenced by his orders and how he interpreted and acted upon those orders as shown by his own actions and rulings. In this case the district court erred in modifying the judgment entered by the trial judge.

Anderson and his natural guardian, Kuhn, brought suit against Harless and Travelers Insurance Company for damages arising out of a pedestrian-auto accident. Harless, served by process delivered to his wife, filed an answer. Travelers was served and by separate counsel filed an answer containing an affirmative defense. Harless’ original counsel withdrew on the ground of “lack of cooperation.” Counsel supplied by Travelers entered an appearance for Harless and filed an amended answer for Harless raising the affirmative defense of comparative negligence. This counsel never met Harless and did not know him or his whereabouts. When interrogatories and notice of deposition were served on Harless’ counsel of record, Harless failed to respond. Kuhn then sought the imposition of sanctions against Harless pursuant to Florida Rule of Civil Procedure 1.380. The trial judge entered an order directing Harless to appear for a subsequently scheduled deposition; when Harless failed to comply, the court entered an order stating “a default is hereby entered against Grover E. Harless.” He also taxed costs and attorney fees. Harless’ counsel of record then withdrew.

The cause came on for pre-trial conference against Harless and Travelers. Since Travelers had suffered no default, the trial judge announced that the issues would be negligence, comparative negligence, and damages. The parties exchanged witness lists on these issues. The trial judge suggested to Kuhn’s counsel that if Travelers were not a party damages would be the only issue. On the morning of trial Kuhn moved to dismiss Travelers, which motion was granted. Travelers’ counsel of record moved to enter an appearance and defend Harless on the remaining issues. The trial judge also granted this motion. A conference then ensued in which the trial judge announced that Kuhn need only present damages and that the defendant could present comparative negligence. The trial judge indicated that he felt comparative negligence went to damages and that decisions of this Court mandated presentation of that issue.

After presenting his case in chief, Kuhn’s counsel urged the trial judge to reconsider his order allowing the issue of comparative negligence. In doing so he urged that Harless, as opposed to Travelers, had furnished no witness list and should not be allowed to call any witnesses. Defense counsel responded by discussing fair play and urged, in effect, that the sanctions sought by Kuhn for this type of default under these circumstances were too harsh. After argument the court overruled Kuhn’s objection and denied Kuhn’s motion to exclude. The trial judge charged the jury on comparative negligence and damages. The jury found Anderson eighty percent negligent, and the judge entered a judgment for twenty percent of his damages.

When a default is entered for failure to plead, a party has the right to contest damages caused by his wrong but no other issue. Watson v. Seat & Crawford, 8 Fla. 446 (1859). No presentation of comparable fault would be proper. In this case, however, the record discloses that the trial judge exercised his discretion as to the severity of the sanctions imposed for failure to make discovery. Rule 1.380(b), Florida Rules of Civil Procedure, gives the trial judge a wide range of sanctions to impose for discovery violations. Generally, where a party fails to furnish discovery properly to his adversary under the rules of procedure, the punishment should fit the fault. Eastern Airlines, Inc. v. Dixon, 310 So.2d 336 (Fla. 3rd DCA 1975); Herold v. Computer Components International, Inc., 252 So.2d 576 (Fla. 4th DCA 1971). While the trial judge could have taken the action sought by Kuhn in this cause, he chose instead to impose a less stringent sanction. It was his judgment as to what punishment should be imposed for the discovery failure. In the absence of an abuse of discretion the sanctions imposed by the trial judge should stand.

The decision of the district court of appeal is quashed with instructions to reinstate the judgment of the trial court.

It is so ordered.

BOYD, OVERTON and ALDERMAN, JJ., concur.

ENGLAND, J., dissents with an opinion with which SUNDBERG, C. J., and ADKINS, J., concur.

ENGLAND, Justice,

dissenting.

As I understand the majority’s decision today, any defendant can try the issue of comparative fault, notwithstanding the proper entry of default judgment for the plaintiff, so long as defendant can convince the trial court to recharacterize the default as a “sanction.” That means to me that comparative fault is now an aspect of damages, not liability, and I can not agree with that legal conclusion.

SUNDBERG, C. J., and ADKINS, J., concur.

      . Kuhn v. Harless, 390 So.2d 721 (Fla. 4th DCA 1980).

      . Kuhn v. Harless, 390 So.2d 723, 723-24 (Fla. 4th DCA 1980).

      . Travelers and Harless had a coverage dispute but this is not germane to this case.

      .The policy issues between Travelers and Harless had been resolved by this time by a summary judgment against Travelers. The policy contained an obligation to defend Harless. Travelers offered its policy limit of $10,000 but the offer was declined.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. David C. GASKIN, Respondent.
    No. 59764.
    Supreme Court of Florida.
    Sept. 3, 1981.
    Stanley A. Spring, Staff Counsel and Anita F. Dahlquist, Bar Counsel, Tallahassee, and Franklin R. Harrison, Chairman, Fourteenth Judicial Circuit Grievance Committee, Panama City, for complainant.
    David C. Gaskin, in pro. per.
   PER CURIAM.

This is a grievance procedure against David C. Gaskin, a member of the Florida Bar. The referee, a circuit judge, found that Gaskin neglected a legal matter entrusted to him, failed initially to communicate with his client, and upon communicating with that client falsely reported the status of the matter. He found that the respondent violated Disciplinary Rules 1-102(A)(4) and (6) and 6-101(A)(3) of the Code of Professional Responsibility of the Florida Bar and recommended that a public reprimand be administered.

Gaskin’s actions cannot be condoned. When a lawyer fails to fulfill his responsibilities the image of the entire legal profession is tarnished. Perhaps even more egregious is the false reporting of the status of the matter. Absolute candor to a client by a lawyer is mandated because the very foundation of an effective attorney-client relationship is predicated upon mutual trust. Lawyers should never mislead their clients.

David C. Gaskin’s actions reflected adversely upon the integrity of the members of the bar, and he is hereby publicly reprimanded for his failure to diligently prosecute the legal matter entrusted to him and for misrepresenting the status of the litigation to his client. Costs in the amount of $646.52 are taxed against respondent.

It is so ordered.

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

BOYD, J., dissents.

      . 1-102.
      (A) A lawyer shall not:
      J(! 5£ 5(C ¡Jí !(S %

      (4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
      * * * * *
      (6) Engage in any other conduct that adversely reflects on his fitness to practice law.

      . 6-101.
      (A) A lawyer shall not:

      (3) Neglect a legal matter entrusted to him.


author: ORFINGER, Judge.

text:
    Wilbur Webb SELLEY, Appellant, v. STATE of Florida, Appellee.
    Nos. 78-115/T4-44, 78-394/T4-44A.
    District Court of Appeal of Florida, Fifth District.
    May 28, 1980.
    Rehearing Denied July 22, 1980.
    Richard S. Rhodes, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Judge.

These are consolidated appeals in which appellant appeals his conviction after a jury trial of battery on a law enforcement officer and a separate conviction of violation of a prior probation order. We affirm both convictions. Appellant raises six points on appeal, but only one merits discussion.

The information by which appellant was charged with the crime of battery on a law enforcement officer stated, in pertinent part:

. . . WILBUR WEBB SELLEY on the 26th day of August, 1977 did, in violation of Florida Statutes 784.03 and 784.07, knowingly commit a battery upon a law enforcement officer, JOHN MOBILIO, a deputy sheriff of Orange County, Florida, and in furtherance thereof did actually and intentionally strike the said JOHN MOBILIO with his hands while the said officer was engaged in the lawful performance of his duties.

Prior to trial, appellant filed a motion to dismiss alleging that the information failed to charge a violation of any law of the State of Florida. Other grounds for the motion were directed to the constitutionality of the applicable statutes, but these grounds have not been argued on appeal. The motion to dismiss was denied.

Appellant now contends that the information is defective because it does not allege an essential element of battery, i. e., that the touching or striking was against the will of the victim. To charge battery on a law enforcement officer under section 784.07(2) (1977), an information must not only allege the essential elements of that crime, but must also allege the elements of a simple battery, Ferrell v. State, 358 So.2d 843 (Fla. 3d DCA 1978), and one of those elements of the crime is that the touching or striking was against the will of the victim.

But a defect in the form of the information does not necessarily require dismissal unless it appears that the information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense. Thus it has been often held that when an information omits an element of the crime charged and no motion to dismiss is filed specifically directed to the alleged defect, such omission is waived unless the information wholly fails to charge a crime. Sinclair v. State, Fla.1950, 46 So.2d 453; Tracey v. State, 130 So.2d 605 (Fla.1961); State v. Taylor, 283 So.2d 882 (Fla. 4th DCA 1973); Caves v. State, 302 So.2d 171 (Fla. 2d DCA 1974).

The information here does not wholly fail to charge a crime, nor does the record reveal that appellant was misled or embarrassed in preparation of his defense. Neither can it be said that he could be exposed to jeopardy again based on the charges here. The record reveals that the very issue raised by appellant was fully tried and the trial judge specifically charged the jury that to convict it must find that defendant actually and intentionally touched or struck the victim against his will, without his express or implied consent, and that the striking was not accidental or unintentional. Under these circumstances we find that appellant waived the defect in the form of the information and that there was no error in the refusal to dismiss the information.

We find appellant’s other points to be without merit and consequently the judgment of conviction as well as the judgment finding a violation of probation and revoking it are both

AFFIRMED.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.

      . § 784.03 Fla.Stat. (1977), Battery.
      (1) A person commits battery if he:
      (a) Actually and intentionally touches or strikes another person against the will of the other; or
      (b) Intentionally causes bodily harm to an individual.

      . Rule 3.140(0) Fla.R.Cr.P. (1977).


text:
    Dan DIXON, Appellant, v. STATE of Florida, Appellee.
    No. TT-328.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1981.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Dixon appeals the sentence entered against him following his plea of guilty to a charge of robbery. He asserted at sentencing and now asserts on appeal that Section 958.04, Florida Statutes (Supp.1978), is mandatory and that the trial court erred in failing to sentence him as a youthful offender. The trial court indicated that it did not consider the statute mandatory and refused to apply the statute’s provisions. Subsequently, we held in Goodson v. State, 392 So.2d 1335 (Fla. 1st DCA 1980), rehearing denied, that Section 958.04 is mandatory if all the criteria found in subsections (1) and (2) are met. Since the trial court based its decision on its determination that the statute is not mandatory, the sentence is reversed and remanded for further proceedings and reconsideration in light of our holding in Goodson, supra.

MILLS, C. J., and BOOTH and LARRY G. SMITH, JJ., concur.


author: PER CURIAM. PER CURIAM.

text:
    Curtis Lee POWELL, Appellant, v. STATE of Florida, Appellee.
    No. SS-520.
    District Court of Appeal of Florida, First District.
    March 27, 1981.
    Rehearing Denied Sept. 2, 1981.
    Michael J. Minerva, Public Defender, Thomas Presnell, Jr., Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Charles A. Stampelos, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Defendant appeals from his convictions for first degree murder, attempted murder, and aggravated assault. Four points are raised on appeal, only one of which merits comment.

Defendant argues that the court erred in denying his request to have the jury instructed on penalties for the crimes for which he was then on trial. At the conclusion of the charge to the jury, defense counsel reminded the court of the previous request and the court noted his exception for the record.

This issue has been decided by the Florida Supreme Court in Tascano v. State, 393 So.2d 540 (Fla.1980), rehearing denied, February 27, 1981. The court there held that if the denial of a defense request for an instruction on penalties has been properly preserved on appeal the conviction must be reversed and the case remanded for a new trial. In the present case we find the defendant has properly preserved the point on appeal and is entitled to receive the benefit of the court’s ruling in Tascano.

The judgments of conviction are reversed and the case remanded for a new trial.

ERVIN, SHAW and WENTWORTH, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

Appellee has filed a Motion for Rehearing/Request for Certification/Motion to Stay Issuance of Mandate. With regard to the Motion for Rehearing, appellee contends that the error of the trial court refusing to instruct the jury pursuant to Florida Rules of Criminal Procedure 3.390(a) as to maximum and minimum sentences was not preserved for appellate review or alternatively does not require reversal because evidence of appellant’s guilt was overwhelming.

The record reflects that the trial court twice noted appellant’s exception to the court’s denial of the requested instruction. Thus, the point was preserved for appellate review. In Tascano v. State, 393 So.2d 540 (Fla.1980), the Supreme Court ruled that a trial court’s refusal to give such an instruction upon request was error; that the requirement that the instruction be given when requested is mandatory. The trial court’s error in this respect cannot be deemed harmless. Murray v. State, 403 So.2d 417 (Fla.1981). Accordingly, we adhere to our opinion of reversal. The Motion to Stay Issuance of the Mandate is denied as is the Request for Certification.

ERVIN, SHAW and WENTWORTH, JJ., concur.