text:
    FLORIDA BOARD OF BAR EXAMINERS. In re Petition for AMENDMENT TO RULES.
    No. 46763-F.
    Supreme Court of Florida.
    March 20, 1980.
    Paul B. Anton, Chairman, Hollywood, and C. Graham Carothers, Tallahassee, for Florida Board of Bar Examiners, Petitioner.
   PER CURIAM.

The Florida Bar of Bar Examiners has proposed an amendment to Florida Supreme Court Bar Admissions Rule, article IV, section 21(a). We grant the Board’s petition and article IV section 21(a) is amended to read in its entirety as follows:

(а) Satisfactory evidence that the applicant has received an academic Bachelor’s Degree granted on a basis of a four-year period of study in a college or university on the approved list of any one of the following regional accrediting associations or any Florida college or university approved by the Florida Supreme Court, approval to be withdrawn if accreditation is not met within a period approved by the accrediting agency:
(1) New England Association of Schools and Colleges;
(2) Middle States Association of Colleges and Schools/Commission on Higher Education;
(3) North Central Association of Colleges and Schools;
(4) Southern Association of Colleges and Schools — Commission on Colleges;
(5) Northwest Association of Schools and Colleges;
(б) Western Association of Schools and Colleges — Accrediting Commission for Senior Colleges;
at a time when, or in the same calendar year in which such school was so accredited; or the successful completion of an examination designated by the Board evidencing attained knowledge equivalent to 120 semester hours of college study to be administered under the Board’s supervision; or a determination at the cost of the applicant by a credentials evaluation service or other professionals approved by the Board that the applicant’s education is the equivalent of a Bachelor’s Degree awarded by an accredited institution.
This section shall be applicable only to those applying for admission to the Bar who enrolled in any accredited law college subsequent to December 31, 1975.
All other applicants shall be governed by previous requirements under Section 22(a) of Article IV, of the rules aforesaid. (At least two years’ in-residence undergraduate work if entry into law school were prior to December 31, 1960, or at least three years’ in-residence undergraduate work if entry into law school were subsequent to December 31,1960, but pri- or to December 31,1975, or the successful completion of a college equivalency examination to be administered under the Board’s supervision.)
Graduation from any one of the following institutions: the United States Military Academy, the United States Naval Academy, the United States Air Force Academy, the United States Coast Guard Academy, or the United States Merchant Marine Academy, will fully satisfy the requirement of this section.
This amendment is effective immediately. It is so ordered.

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

ENGLAND, C. J., and SUNDBERG, J., dissent.


source: Caselaw Access Project

author: ADKINS, Justice. SUNDBERG, J.,

license: Public Domain

text:
    Trenton TAYLOR, Husband, Petitioner, v. Marie Delia TAYLOR, Wife, Respondent.
    No. 54031.
    Supreme Court of Florida.
    March 20, 1980.
    Lester Makofka, Jacksonville, for petitioner.
    James I. Riley, Jacksonville, for respondent.
   ADKINS, Justice.

This is a petition for writ of certiorari seeking review of a decision of the First District Court of Appeal, reported at 357 So.2d 488 (Fla.. 1st DCA 1978), on the ground that it conflicts with a decision of another district court of appeal.

Husband petitioned for dissolution of marriage and partition of the marital home. He appeals the decision of the First District Court of Appeal affirming the trial court’s final judgment of dissolution awarding the wife the use, possession and occupancy of the marital home, until such time as she remarries or dies, whichever first occurs. There were no minor children in this case, this was not an award of lump sum alimony, nor were there special equities.

The parties were married for twenty-four years. At the time of dissolution, the 56-year-old woman was in poor health, suffering from hypertension. She has an eighth-grade education. Her employment experience is extremely limited, having only worked in a textile mill early in the marriage, and for a short period as a Christmas salesclerk for W. T. Grant Company. Mrs. Taylor has no marketable skills and is further handicapped as she speaks English with a pronounced French accent.

The facts in the instant case are similar to those in McDonald v. McDonald, 368 So.2d 1283 (Fla.1979), decided subsequent to the filing of this petition in which this Court affirmed the award of the marital home for a period of two years, to the former wife of twenty-two years, with grown children and limited work experience. The facts as recited by the First District Court of Appeal are that Mrs. McDonald was a 39-year-old woman with a seventh-grade education and limited experience as a waitress, clerk, school bus driver, and nurse’s aide. McDonald v. McDonald, 346 So.2d 610 (Fla. 1st DCA 1977).

Prior to this Court’s decision in McDonald, the Second and Third District Courts of Appeal held that award of exclusive use and possession of the former marital home was error unless awarded as lump sum alimony or based on an obligation to support minor children. Church v. Church, 338 So.2d 544 (Fla. 3d DCA 1976); Watson v. Watson, 324 So.2d 126 (Fla. 3d DCA 1975); Ranes v. Ranes, 311 So.2d 370 (Fla. 2d DCA 1975); Saviteer v. McAdoo, 310 So.2d 28 (Fla. 2d DCA 1975). We expressly disapproved those decisions in Duncan v. Duncan, 379 So.2d 949 (Fla.1980), holding that exclusive possession of the marital home is proper when directly connected to the obligation to pay support and there is a special purpose for the award. As. we stated in Duncan, “[t]he critical question is whether the award is equitable and just given the nature of the case.” We find the facts in the instant case are at least as compelling as those in McDonald, and clearly justify the award of exclusive possession by the trial court. See also Lange v. Lange, 357 So.2d 1035 (Fla. 4th DCA 1978), approved in 380 So.2d 1027 (Fla.1980) (exclusive possession proper where wife was mentally ill and without employment prospects).

The petition for writ of certiorari reflected apparent jurisdiction in this Court. We have determined that, subsequent to McDonald and Duncan, there is no longer direct conflict as required by article V, section 3(b)(3), Florida Constitution. Therefore, certiorari is hereby denied.

It is so ordered.

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

ALDERMAN, J., concurs in the result only.

SUNDBERG, J.,

dissents for the same reason he dissented in McDonald v. McDonald, 368 So.2d 1283 (Fla.1979).


author: PER CURIAM.

text:
    Earl K. WILKES, Appellant, v. STATE of Florida, Appellee.
    No. 55582.
    Supreme Court of Florida.
    March 20, 1980.
    Robert E. Jagger, Public Defender and William G. Sestak, Asst. Public Defender, Dade City, for appellant.
    Jim Smith, Atty. Gen. and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

Affirmed. See State v. Ashcraft, 378 So.2d 284 (Fla.1979); Gissendanner v. State, 373 So.2d 898 (Fla.1979).

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


author: PER CURIAM. ADKINS, Justice,

text:
    Ronald D’AMATO, Petitioner, v. Honorable Ellen J. MORPHONIOS, etc., Respondent.
    No. 54447.
    Supreme Court of Florida.
    March 27, 1980.
    Eugene P. Spellman and Denis Dean, Sr. of the Law Offices of Eugene P. Spellman, Miami, for petitioner.
    Jim Smith, Atty. Gen., Janet Reno, State’s Atty., and Stephen V. Rosin, Asst. State’s Atty., Miami, for respondent.
   PER CURIAM.

By petition for writ of certiorari we are asked to review a decision of the District Court of Appeal, Third District, reported at 358 So.2d 1119, which conflicts with State v. Powell, 343 So.2d 892 (Fla. 1st DCA 1977). We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution.

Judge Hubbart’s majority opinion below is characteristically lucid and comprehensive. We therefore adopt it as the decision of this Court.

Accordingly, the petition for writ of cer-tiorari is granted, and the decision of the District Court of Appeal, Third District, is approved. To the extent that the decision in State v. Powell is inconsistent, it is hereby disapproved.

It is so ordered.

ENGLAND, C. J., OVERTON, SUND-BERG and ALDERMAN, JJ., concur.

ADKINS, J., concurs specially with an opinion, with which BOYD, J., concurs.

ADKINS, Justice,

concurring specially.

Can an examination by the state attorney during defense discovery proceedings ever become an “investigation” by the state attorney? The majority says no. I say yes.

At issue is the operation of Florida’s immunity statute, section 914.04, Florida Statutes (1975), based on testimony elicited by a state attorney at a defense discovery deposition. The Third District Court of Appeal held the' immunity statute was inapplicable where the witness was subpoenaed by the defense to testify with regard to a proceeding in which he was not charged. State ex rel. D’Amato v. Morphonios, 358 So.2d 1119 (Fla.3d DCA 1978). The First District Court of Appeal has indicated immunity could be available under these circumstances. State v. Powell, 343 So.2d 893, 894 (Fla.1st DCA 1977).

The state argues the immunity statute is only available to a state attorney conducting ex parte investigations pursuant to section 27.04, Florida Statutes (1975). I disagree. The language of the immunity statute as applicable to the facts at bar is clear and unambiguous:

No person, having been duly served with a subpoena . . . shall be excused from attending and testifying . before any . . . state attorney, upon investigation . . . for a violation of any of the criminal statutes of this state .

Section 914.04, Florida Statutes (1975). A defense discovery deposition may not be the usual forum in which a state attorney would choose to exercise this authority under the immunity statute. However, there is nothing in the language of the statute itself to prohibit doing so, as long as all other requirements are met.

In the case at bar D’Amato was under subpoena at the time the state attorney cross-examined him. An investigation into petitioner’s alleged criminal conduct was underway and the testimony given was related thereto. State v. D’Amato, 358 So.2d 575, at 576 (Fla.3d DCA 1978). The petitioner was being questioned by the state attorney who has the authority to grant immunity. This differs markedly from a situation in which the defense attempts to confer immunity by subpoenaing and questioning an accused. The power to confer immunity lies solely with the state. State v. Schell, 222 So.2d 757 (Fla.2d DCA 1969). There is no reason a person in petitioner’s position should be required to give incriminating testimony simply because the subpoena was issued by the defense. The immunity statute was available to the state attorney herein and I disapprove any discussion to the contrary in the district court’s decision.

Although I decline to follow the district court’s rationale, the result is approved. I would hold this defendant was not entitled to immunity because he gave the testimony voluntarily.

The purpose of an immunity statute is to enable the state to pursue avenues of investigation which are usually foreclosed by the constitutional privilege against self-incrimination. This is accomplished by granting the state, under cértain circumstances, the power to grant immunity and thus compel otherwise privileged testimony. The events which trigger the immunity statute are compulsory testimony, State ex rel. Foster v. Hall, 230 So.2d 722 (Fla.2d DCA 1970), and the assertion of the privilege against self-incrimination, Tsavaris v. Scruggs, 360 So.2d 745 (Fla.1977); State v. Perkins, 349 So.2d 802 (Fla.2d DCA 1977); Orosz v. State, 334 So.2d 26 (Fla.lst DCA 1976). Florida’s immunity statute is not self-executing. State v. Newsome, 349 So.2d 771 (Fla.2d DCA 1977). If a person giving testimony in response to the state’s questions fails to object, then the testimony is deemed voluntary and immunity is inappropriate. D’Amato did not invoke his privilege against self-incrimination when the state attorney questioned him. He cannot now claim immunity on the basis of the testimony given in response to those questions.

I approve the decision of the Third District Court of Appeal but for the reasons expressed herein, rather than those expressed in the opinion of the district court.

BOYD, J., concurs.


author: OVERTON, Justice.

text:
    Robert FAVRE, Appellant, v. CAPELETTI BROTHERS, INC., a Florida Corporation, and Liberty Mutual Insurance Company, a Foreign Corporation, Appellees.
    No. 55201.
    Supreme Court of Florida.
    March 27, 1980.

      Michael P. Maguire of Maguire & Friend, Miami, for appellant.
    Kevin P. O’Connor of Magill, Sevier & Reid, Miami, for appellees.
   OVERTON, Justice.

This is a direct appeal from a summary judgment entered by the trial court, holding that an employee of a subcontractor who received workmen’s compensation for an injury could not separately sue the general contractor. In doing so, the trial court expressly upheld the constitutionality of sections 440.10 and 440.11, Florida Statutes (1977). We have jurisdiction.

The facts of this case are not in dispute. Appellant Robert Favre filed a civil action against the appellee, Capeletti Brothers, Inc., the general contractor on a bridge. Appellant was working on the bridge as an employee of Crow-Bagwell, Inc., a subcontractor of Capeletti Brothers. The appellant-employee alleged the general contractor negligently caused his injury. The appellant-employee has obtained full workmen’s compensation benefits from the workmen’s compensation coverage provided by his employer, Crow-Bagwell, Inc. In response to the appellant’s complaint, Cape-letti Brothers filed a motion for summary judgment, contending that workmen’s compensation was the appellant’s exclusive remedy. The trial court agreed and granted the summary judgment, expressly holding sections 440.10 and 440.11, Florida Statutes (1977), constitutional. Appellant contends Sunspan Engineering and Construction Co. v. Spring-Lock Scaffolding Co., 310 So.2d 4 (Fla.1975), is applicable and requires this Court to hold sections 440.10 and 440.11 unconstitutional as applied to appellant. We reject this contention and find the factual circumstances totally dissimilar. Our decision in Jones v. Florida Power Corp., 72 So.2d 285 (Fla.1954), governs this factual situation. See also Smith v. Ussery, 261 So.2d 164 (Fla.1972). We affirm.

It is so ordered.

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

      . Art. V, § 3(b)(1), Fla.Const.


text:
    THE FLORIDA BAR, Complainant, v. B. Garnett PAGE, Respondent.
    No. 58606.
    Supreme Court of Florida.
    March 27, 1980.

      Donald A. Smith, Jr., Bar Counsel, Tampa, for complainant.
    William L. Lancaster, Tampa, for respondent.
   PER CURIAM.

This matter is before the Court on Petition to Approve Conditional Guilty Plea and to Enter Final Order of Discipline.

On February 5, 1980, The Florida Bar filed its petition alleging:

1. On June 8, 1979, the Thirteenth Judicial Circuit Grievance Committee “B” submitted a probable cause report reflecting its decision that probable cause existed to believe that Respondent had violated certain disciplinary rules of The Florida Bar Code of Professional Responsibility and unanimously recommending that confidentiality be waived.
2. On July 12, 1979, the Board of Governors of The Florida Bar voted to waive confidentiality.
3. On July 23, 1979, The Florida Bar filed a two count complaint against Respondent, alleging the following:
COUNT I
1. Respondent, B. Garnett Page, is and at all times hereinafter mentioned was, a member of The Florida Bar, subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.
2. This complaint is filed by The Florida Bar at the direction of the Board of Governors.
3. Respondent agreed to represent Mr. Charles T. Berry in a foreclosure action.
4. On or about February 24, 1978, Respondent received from Mr. Charles T. Berry $150.00. This payment was made for the purpose of covering the cost of publishing a notice of foreclosure in a newspaper.
5. On or about June, 1978, Mr. Charles T. Berry informed Respondent that he had a buyer for his home available. Mr. Berry also informed Respondent that the sale was possible only upon completion of the foreclosure action.
6. On or about June, 1978, Respondent informed Mr. Charles T. Berry that all necessary publications had been completed and that everything would be completed within 28 days, or words to that effect.
7. By letter of November 27, 1978, Mr. Charles T. Berry,- through his wife, Ruth A. Berry, made a written request to Respondent for return of the $150.00.
8. Respondent failed to cause to be published any notice of this foreclosure action.
9. Respondent failed to return to Mr. Charles T. Berry the $150.00 payment for publication costs.
10. Respondent failed to take any action concerning his representation of Mr. Charles T. Berry in a foreclosure action.
11. Due to Respondent’s failure to act in this manner, Mr. Charles T. Berry was unable to consúmate [sic] the sale of his property to the prospective buyers in mid-1978 and was therefore prejudiced.
12. By reason of the foregoing, Respondent violated Fla. Bar Code Prof. Resp., D.R. 1-102(A)(1), (4), (5), (6); D.R. 2 — 106(A); D.R. 2-110(A)(2), (3); D.R. 6-101(A)(3); D.R. 7-101(A)(l), (2), (3); D.R. 9-102(B)(4); and Canon 9.
COUNT II
[13.] On April 30, 1976, Respondent entered into a contract for representation of Ernest Franklin to institute all necessary actions concerning Mr. Franklin’s cláim against his prior employer and union. .
[14.] Approximately 1 year after signing of this contract Mr. Ernest Franklin paid Respondent $100.00 to cover the costs of filing suit in Federal Court.
[15.] In 1977, and subsequent to receiving the $100.00 costs deposit, Respondent stated to Mr. Ernest Franklin that suit had been filed in Federal Court in this matter, or words to that effect.
[16.] On or about October 5, 1978, pursuant to Mr. Franklin’s request, Respondent returned the file concerning Mr. Franklin’s claim against Continental Can Company and the United Steelworker’s Union to Mr. Franklin.
[17.] Prior to Respondent’s return of the file to Mr. Franklin, Respondent failed to file suit on behalf of Mr. Franklin against Continental Can Company and/or International Steelworker’s Union AFL/CIO.
[18.] Prior to Respondent’s return of the file to Mr. Franklin, the statute of limitations had expired on Mr.' Franklin’s claim against Continental Can Company and United Steelworker’s Union.
[19.] Respondent failed to return to Mr. Ernest Franklin the $100.00 which represented the cost of filing suit.
[20.] By reason of .the foregoing, Mr. Ernest Franklin was prejudiced in his claim against Continental Can Company and/or International Steelworker’s Union AFL/CIO.
[21.] By reason of the foregoing, Respondent [violated Fla. Bar Code Prof. Resp., D.R. 1-102(A)(1), (4), (5), (6); D.R. 2-106(A); D.R. 2-110(A)(2), (3); D.R. 6-101(A)(3); D.R. 7-101(A)(1), (2), (3); D.R. 9-102(B)(4); and Canon 9.
4. .On December 5, 1979, Respondent signed a Conditional Guilty Plea for Consent Judgment. The Conditional Guilty Plea was tendered in exchange for the following disciplinary measures: 1) a public reprimand to be published in the Southern Reporter; 2) three (3) year probationary period with a condition of probation to include the preparation and filing of a report stating the status of each pending case of Respondent. The initial report to be filed six (6) months after final Supreme Court action and all subsequent reports to be filed every sixth month thereafter; 3) payment of all costs relating to the proceedings.
5. On January 10, 1980, the Board of Governors of The Florida Bar approved Respondent’s Conditional Guilty Plea.

The Petition to Approve Conditional Guilty Plea and to Enter Final Order of Discipline is granted, and Respondent, B. Garnett Page, is hereby disciplined by public reprimand to be published in the Southern Reporter based upon the facts set forth above. Further,- Respondent is hereby placed on probation for a period of three years from the date of this opinion. During this period Respondent shall file with Staff Counsel of The Florida Bar and the Clerk of this Court reports of his activities as an attorney. The initial report shall be filed six months from this date and all subsequent reports shall be filed every sixth month thereafter.

Costs in the amount of $201.25 are hereby taxed against the Respondent.

It is so ordered.

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


author: ADKINS, Justice. BOYD, J.,

text:
    STATE of Florida, Appellant, v. Richard RILEY, Appellee.
    No. 55472.
    Supreme Court of Florida.
    March 27, 1980.

      Jim Smith, Atty. Gen., and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.
    John R. Howes, Winter Haven, and John C. Wilkins, III, Bartow, for appellee.
   ADKINS, Justice.

This cause is before us on direct appeal from an order of the Tenth Judicial Circuit Court directly passing on the constitutionality of a state statute. We have jurisdiction. Art. V, § 3(b)(1), Pla.Const.

Appellee, hereinafter referred to as defendant, was .indicted for official misconduct in violation of section 839.25(l)(b), Florida Statutes (1977). Specifically, the state charged that defendant, a police officer, knowingly falsified certain police reports with corrupt intent to obtain a benefit for himself or to cause unlawful harm to others. Citing this Court’s decision in State v. De Leo, 356 So.2d 306 (Fla.1978), the trial court dismissed the indictment on the basis that the statute was unconstitutionally vague. In De Leo we held that section 839.25(l)(c), Florida Statutes (1977), was unconstitutionally vague and susceptible to arbitrary application. Art. I, § 9, Fla. Const.; U.S.Const. amend. XIV. The state argues that subsections (b) and (c) are sev-erable and De Leo does not apply. We agree.

The decision in De Leo was based upon the open-ended nature of subsection (c) which proscribed conduct “keyed into the violation of any statute, rule or regulation, pertaining to the office of the accused, whether they contain criminal penalties themselves or not, and no matter how minor or trivial.” 356 So.2d at 308. The subsection violated by defendant in this case is not couched in such- open-ended language but specifically defines the prohibited conduct:

(b) Knowingly falsifying, or causing another to falsify, any official record or official document;

§ 839.25(l)(b), Fla.Stat. (1977). '

The Court in De Leo noted that the additional element of “corrupt intent” did not vitiate the potential for arbitrary application generated by the “catch-all” nature of the subsection. The fact that the “corruption” element did not cure the statute in De Leo does not mean that its presence necessarily renders a statute void. See Sandstrom v. Leader, 370 So.2d 3 (Fla.1979). The prohibition in section 839.25(1), Florida Statutes (1977), is directed to public servants who act with corrupt intent. Subsection (2) defines “corrupt as “done with knowledge that act is wrongful and with improper motives.” As in De Leo this definition neither adds nor detracts to help determine the parameters of the instant subsection. Unlike De Leo, subsection (b) operates to narrow the offense of official misconduct by requiring a knowing falsification of official documents.

The conduct proscribed by section 839.-25(l)(b), Florida Statutes (1977), is defined so that those with common intelligence and understanding have sufficient warning of what actions would constitute a violation. Brunelle v. State, 360 So.2d 70 (Fla.1978); Leeman v. State, 357 So.2d 703 (Fla.1978); State v. Wershow, 343 So.2d 605 (Fla.1977). The elements imposed by subsection (b) also limit the danger of arbitrary application to a constitutionally acceptable degree. State v. De Leo.

The order of the trial court dismissing the indictment is reversed and the cause is remanded for further proceedings.

It is so ordered.

ENGLAND, C. J., and OVERTON, SUNDBERG, ALDERMAN and MCDONALD, JJ., concur.

BOYD, J.,

dissents for reasons stated in State v. De Leo, 356 So.2d 306 (Fla.1978).


author: SUNDBERG, Justice.

text:
    STATE of Florida, Appellant, v. Mark Randall CAIN, Appellee. Virgil Thomas DUNCAN, Appellant, v. STATE of Florida, Appellee.
    Nos. 56528, 57410.
    Supreme Court of Florida.
    March 27, 1980.

      Jim Smith, Atty. Gen., for State of Fla. in both cases.
    Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellant in No. 56528.
    Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellee in No. 56528.
    Harry W. Carls, III, Public Defender, and Glenn M. Klausman, Asst. Public Defender, Orlando, for appellant in No. 57410.
    Marc E. Kirk, Asst. Atty. Gen., West Palm Beach, for appellee in No. 57410.
   SUNDBERG, Justice.

These consolidated cases present the issue of whether the state may constitutionally vest the state attorney with authority to criminally prosecute a juvenile who is sixteen years of age or older as an adult under subsection 39.04(2)(e)4, Florida Statutes (Supp.1978), when the juvenile has in the past committed two' delinquent acts one of which involved an offense classified under Florida law as a felony. Because the trial courts below passed on the constitutional validity of subsection 39.04(2)(e) 4, we have direct appellate jurisdiction under our constitution. Art. V, § 3(b)(1), Fla.Const.

STATE v. CAIN, No. 56,528

Mark R. Cain, a juVenile, was charged by amended information on February 6, 1979, with two counts of armed burglary of a dwelling and with two counts of grand theft. Cain filed a motion to dismiss the information on the ground that the state charged him ■ as an adult pursuant to an unconstitutional statute, subsection 39.04(2) (e)4, Florida Statutes (Supp.1978), which provides:

(e) The state attorney shall in all such cases, after receiving and considering the recommendation of the intake officer, have the right to take action, regardless of the action or lack of action of the intake officer, and shall determine the action which is in the best interest of the public. The state attorney may:
4. With respect to any child who at the time of commission of the alleged offense was 16 or 17 years of age, file an information when in his judgment and discretion the public interest requires that adult sanctions be considered or imposed. Upon motion of the child, the case shall be transferred for adjudicatory proceedings as a child pursuant to s. 39.09(1) if it is shown by the child that he had not previously been found to have committed two delinquent acts, one of which involved an offense classified under Florida law as a felony[.]

Cain asserted that the statute unconstitutionally delegates to the state attorney the unbridled discretion to prosecute a juvenile as an adult. Cain also maintained that the statute violates due process of law by permitting transfer of the juvenile to adult court jurisdiction without a hearing. The circuit court held the statute unconstitutional and granted Cain’s motion to dismiss, resulting in the state’s filing this appeal.

DUNCAN v. STATE, No. 57,410

On March 27, 1979, the county sheriff filed a complaint in the juvenile division of the circuit court charging Virgil T. Duncan with petit theft. On April 25, the state attorney filed an information in the county court charging Duncan with the same crime. On Duncan’s motion, the county court ordered the transfer of the case to the juvenile division of the circuit court. The state in turn moved to transfer the case back to the county court, alleging that the county court had criminal jurisdiction under subsection 39.04(2)(e)4, Florida Statutes (Supp.1978), as a result of the filing of an information charging a misdemeanor. The circuit court granted the state’s motion and on June 1, 1979, transferred the case to the. county court. Duncan then filed a motion to dismiss alleging, among other things, that the statute was an unconstitutional abrogation of procedural due process, a denial of equal protection and an unconstitutional delegation of unbridled discretion to the state attorney to prosecute a juvenile as an adult. The county court denied Duncan’s motion to dismiss and held subsection 39.04(2)(e)4 constitutional. Duncan then pleaded nolo contendere and the county court adjudicated him guilty, with sentencing being withheld pending this appeal.

At the outset it should be remembered that the juvenile court system is a fairly recent phenomenon, beginning in this country at the end of the last century and since spreading to every state. There was no common law right to be specially treated as a juvenile delinquent instead of a criminal offender. In re Gault, 387 U.S. 1, 16, 87 S.Ct. 1428, 1437, 18 L.Ed.2d 527 (1967). Nor is there any inherent or constitutional right to preferred treatment as a juvenile delinquent. Stokes v. Fair, 581 F.2d 287, 289 (1st Cir. 1978); Woodward v. Wainwright, 556 F.2d 781, 785 (5th Cir. 1977). Under our Florida Constitution, when authorized by law, a “child” as therein defined may be charged with a violation of law as an act of delinquency instead of a crime. Art. I, § 15(b), Fla.Const. Therefore, a child has the right to be treated as a juvenile delinquent only to the extent provided by our legislature. Johnson v. State, 314 So.2d 573 (Fla.1975). With respect to juveniles, the legislature has acted in chapter 39 of the Florida Statutes to temper the traditional prosecutorial prerogative of deciding what criminal offense to bring against whom. Under subsection 39.02(1), Florida Statutes (Supp.1978), the juvenile division of the circuit court is vested with exclusive original jurisdiction over proceedings in which a “child” is alleged to have committed a delinquent act or violation of law other than a traffic offense. The legislature has, however, provided for several exceptions to the juvenile court’s otherwise exclusive jurisdiction over juveniles. First, the court may waive juvenile jurisdiction over any child fourteen years of age or older after a waiver hearing in which the criteria listed in section 39.09(2)(c)l-8, Florida Statutes (Supp.1978), are considered. §§ 39.02(5)(a) & 39.01(35), Fla.Stat. (Supp.1978). If the juvenile has been previously adjudicated delinquent for certain serious violent offenses and is currently charged with a second or subsequent such offense, the state attorney is required to move for a transfer of the child for criminal prosecution. § 39.-09(2)(a), Fla.Stat. (Supp.1978). Next, a juvenile may be prosecuted as an adult upon the return of a grand jury indictment charging him with a crime punishable by death or life imprisonment. § 39.02(5)(e), Fla.Stat. (Supp.1978). Third, in the exception disputed here, the state attorney may, by filing an information, criminally prosecute a juvenile sixteen years of age or older when in his discretion the public interest requires that adult sanctions be imposed. § 39.04(2)(e)4, Fla.Stat. (Supp.1978). If the child has not previously been found to have committed two delinquent acts, one of which involved an offense classified as a felony under Florida law, the child may move for transfer of the case for adjudication as a juvenile. Id. Finally, a juvenile has a right to be tried as an adult upon written demand joined by a parent or. guardian. § 39.02(5)(b), Fla.Stat. (Supp. 1978); art. I, § 15(b), Fla.Const.

It cannot be said that the legislature acted arbitrarily in providing for these statutory exceptions to juvenile treatment. The legislature could reasonably conclude based on circumstances such as age, seriousness of the offense and past record that certain juvenile offenders were not suitable candidates for the juvenile act’s rehabilitative goals; consequently, the legislature could reasonably classify these offenders as persons against whom adult sanctions would be an alternative. The logical progression of the statutory transfer scheme demonstrates that, .far from being arbitrary, the transfer scheme is entirely reasonable. For the most serious felonies (capital and life) charged against a juvenile of any age, transfer is automatic by indictment. § 39.02(5)(c). For a repeating offender sixteen or seventeen years of age with two or more prior delinquent acts, one of which would constitute a felony, transfer is within the prosecutor’s discretion by filing an information. § 39.04(2)(e)4. For any offense by a juvenile age fourteen or over, transfer is by motion and only after a hearing before the judge. §§ 39.02(5)(a) & 39.09(2). Thus, as the circumstances supporting transfer become less compelling, the procedures required become more formal. With this background in mind we now turn to the specific arguments of defendants Cain and Duncan.

The myriad due process arguments asserted by Cain and Duncan in their attack on section 39.04(2)(e)4 closely resemble those raised and rejected in Johnson v. State, 314 So.2d 573 (Fla.1975), and Woodward v. Wainwright, 556 F.2d 781 (5th Cir. 1977). These cases upheld the constitutionality of subsection 39.02(5)(c) of the Florida Statutes permitting the criminal prosecution of a juvenile of any age upon the return of a grand jury indictment charging an offense punishable by death or life imprisonment. In Johnson the defendant argued that the statutory provision was defective because it sets no guidelines to assist the state attorney or grand jury in determining which child should be indicted and which should be dealt with as a delinquent. This Court responded to that argument as follows:

In both the adult and juvenile divisions of our court system, the State Attorney is the prosecuting officer. In any particular case he may elect to prosecute or not. The prosecutorial discretion to which the appellant objects is no more than that which is inherent in our system of criminal justice. Its origin is found in the common law of England. Similarly in the Federal system the Federal Courts have consistently held that the discretion of the Attorney General in choosing whether to prosecute or not to prosecute, or to abandon a prosecution already started, is absolute.

314 So.2d 577 (footnotes omitted). We do not see how a state attorney’s decision to seek an indictment against a juvenile, as permitted under subsection 39.04(2)(e)5, is distinguishable from a state attorney’s decision to file an information against a juvenile. In either case the legislature has, by these statutory exceptions to the juvenile division’s general jurisdiction over children, returned to the state attorney his traditional prerogative of deciding who to criminally charge with what offense. Cain and Duncan attempt to distinguish Johnson and Woodward on the basis that the statutory provision there controlled the state attorney’s charging authority by the requirements of a grand jury indictment and an offense punishable by death or life imprisonment. We do not find these distinctions persuasive. Under subsection 39.04(2)(e)4, a state attorney in filing an information is likewise restricted in that he may successfully charge only a sixteen or seventeen-year-old and then only if the child has also been previously found to have committed two delinquent acts, one of which would constitute a felony if committed by an adult. Moreover, the requirement of a grand jury indictment only ensures that there is probable cause for the charge — it does not determine the propriety of prosecuting a juvenile as an adult.

Cain and Duncan concede that the legislature might have been less charitable than it was in subsection 39.04(2)(e)4 by eliminating juvenile treatment altogether for those sixteen years of age or older. But, they argue, having provided for special treatment, the legislature may not now give it to some juveniles while taking it away from others without a hearing and other due process guarantees. It is contended that because the decision whether to waive juvenile jurisdiction is “critically important” the due process requirements set forth in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), for waiver of juvenile court jurisdiction should apply whether the waiver decision is vested in a judge or a state attorney. Cain and Duncan also support their theory by citing to a number of United States Supreme Court cases which in general stand for the proposition that procedural due process must be accorded whenever a person faces substantial loss as a result of governmental action, notwithstanding any, purported distinction between a “right” and a “privilege.”

In Kent the Court considered a District of Columbia statute which permitted the juvenile judge, “after full investigation,” to waive jurisdiction over any juvenile sixteen years of age or over who was charged with a felony. The Court stated that the question of whether a juvenile will be deprived of the special treatment afforded under the juvenile court act was “critically important,” noting in particular that in that case it meant the difference between a possible death sentence and a maximum of five years detention as a juvenile. The Court then held that as a condition to a valid waiver order, the juvenile was entitled to a hearing, effective assistance of counsel and a statement of reasons. In reaching its holding the Court said, “We believe that this result is required by the statute read in the context of constitutional principles relating to due process and the assistance of counsel.” Id. at 557, 86 S.Ct. at 1055. This ambiguous statement has occasioned considerable debate as to whether the constitutional ramifications of the holding in Kent extend beyond the District of Columbia statute involved in that case. See, e. g., Stokes v. Fair, 581 F.2d 287, 289 (1st Cir. 1978), and the cases cited therein; Woodward v. Wainwright, 556 F.2d 781, 784 (5th Cir. 1977), and the cases cited therein. Whatever its constitutional ramifications, we do not believe they extend to the statutory provision under consideration here where discretion to prosecute a juvenile as an adult is vested in the prosecutor rather than in a judge. Accord, Stokes v. Fair, 581 F.2d 287 (1st Cir. 1978); Woodward v. Wainwright, 556 F.2d 781 (5th Cir. 1977); Russell v. Parratt, 543 F.2d 1214 (8th Cir. 1976); United States v. Quinones, 516 F.2d 1309 (1st Cir.), cert. denied, 423 U.S. 852, 96 S.Ct. 97, 46 L.Ed.2d 76 (1975); Cox v. United States, 473 F.2d 334 (4th Cir.), cert. denied, 414 U.S. 869, 94 S.Ct. 183, 38 L.Ed.2d 116 (1973); United States v. Bland, 153 U.S.App.D.C. 254, 472 F.2d 1329 (1972), cert. denied, 412 U.S. 909, 93 S.Ct. 2294, 36 L.Ed.2d 975 (1973). See also the state court decisions cited in Woodward v. Wainwright, 556 F.2d at 784 n.13. There is also direct support for this view in the subsequent Supreme Court decisions themselves which have referred to Kent. In the landmark decision, In re Gault, 387 U.S. 1, 12, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527 (1967), the Court said with respect to Kent, “Although our decision turned upon the language of the statute, we emphasized the necessity that ‘the basic requirements of due process and fairness’ be satisfied in such [waiver] proceedings.” (Emphasis added.) Later, in Breed v. Jones, 421 U.S. 519, 537, 95 S.Ct. 1779, 1790, 44 L.Ed.2d 346 (1973), the Court said that in Kent it “held that hearings under the statute there involved ‘must measure up to the essentials of due process and fair treatment.’ ” (Emphasis added.) The “proceedings” or “hearings” involved in Kent were, of course, judicial proceedings or hearings, not the processes of prosecuto-rial decision-making. The analysis of the' court in Russell v. Parratt, 543 F.2d 1214, 1216-17 (8th Cir. 1976), applies with equal force here:

The defendant’s reliance upon Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966) is misplaced. Kent involved a decision of the Juvenile Court of the District of Columbia, waiving jurisdiction to the United States District Court for the District of Columbia. It is the holding of Kent that when the question is one of waiver of jurisdiction of a Juvenile Court, and it is to be decided by a judge of the Juvenile Court, the juvenile is entitled to a hearing on the question of waiver, and to the assistance of counsel in that hearing. The decision is, of course, harmonious with our tradition that judicial proceedings involving substantial rights of an alleged criminal shall be attended by the full panoply of due process. But we do not here confront judicial proceedings. Rather, we have simply a traditional exercise of discretion within the executive branch, and while we recognize that the prosecutor’s decision has a substantial impact on the course of subsequent proceedings, we cannot equate the prosecutorial decision with judicial proceedings, absent legislative direction.

(Footnotes omitted.)

It is also clear that the state attorney’s decision to bring criminal charges against a juvenile does not involve an “adjudication.” Rather, it is only the basis by which adjudication is initiated. Thus the cases cited by Cain and Duncan in note 2, supra, where the government acted to deprive the individuals involved of certain rights and statutory benefits without due process, are inapposite. Accord, United States v. Bland, 153 U.S.App.D.C. 254, 472 F.2d 1329 (1972), cert. denied, 412 U.S. 909, 93 S.Ct. 2294, 36 L.Ed.2d 975 (1973). The juvenile who is charged with a criminal offense is afforded the same procedural and substantive rights as is any other person. Moreover, we disagree with defendants’ threshold analysis that something is being “taken” from them as a result of their being prosecuted as adults rather than as juveniles. As'we stated earlier in this opinion, juveniles are given such immunity from criminal prosecution as is conferred on them under statute. Reading chapter 39 in pari materia, we note that while exclusive jurisdiction over juveniles is initially vested in the juvenile division of the circuit court, this jurisdiction is expressly qualified to the extent of the statutory exceptions discussed above. Thus the statutory scheme of chapter 39 dispels any notion that a juvenile is guaranteed an absolute right to juvenile treatment. Accord, Woodward v. Wainwright, 556 F.2d 781 (5th Cir. 1977).

Cain and Duncan also contend that subsection 39.04(2)(e)4 violates due process because of an implied conclusive statutory presumption that the juveniles charged as adults are unfit for rehabilitation. This contention simply isn’t so. First of all, the state attorney is not bound under the section to prosecute a juvenile as an adult. He is free to exercise his discretion on an ad hoc basis. Second, even when a juvenile is convicted in adult court he is still given special treatment as a juvenile. Before imposing judgment, the trial court must conduct a disposition hearing to determine whether juvenile or adult sanctions are appropriate. § 39.02(6), Fla.Stat. (Supp.1978). The court must follow the procedure provided in subsection 39.111(6), Florida Statutes (Supp.1978), and must consider the criteria enumerated in subsection 39.111(6)(c) 1-6 which in substantial part mirror the criteria the court is to consider in waiving juvenile jurisdiction in the first place.. See § 39.09(2)(c)l-8 Fla.Stat. (Supp.1978). Since the juvenile is extended many of the same advantages he would have derived from initial treatment as a juvenile delinquent, the filing of an information under subsection 39.04(2)(3)4 does not constitute an abandonment of rehabilitative efforts. Unlike in the statutory scheme faced by the juvenile defendant in Kent, here the waiver decision does not automatically expose the juvenile to such disparate maximum dispositions as the' death sentence versus five years detention as a juvenile. Furthermore, even if adult sanctions are imposed against a juvenile, he may still enjoy the benefit of the youthful offender act under chapter 958 of the Florida Statutes.

Finally, Cain and Duncan argue that subsection 39.04(2)(3)4 violates due process of law on a separation of powers ground by analogizing the situation here with that of the delegation of authority to an administrative agency. They cite the principle that the delegation of power by the legislature must be limited in scope so that nothing is left to an agency official’s unbridled discretion in enforcing the law. The defendants further point out that the “public interest” guideline contained in subsection 39.04(2)(3)4 has been rejected in the administrative agency context as being far too broad a standard to be meaningful. The analogy is not well taken. It is well established that the legislature may, within clearly defined limits, delegate to an administrative agency the authority to provide rules and regulations for the complete operation and enforcement of the law within its express purpose, but may not delegate the power to enact a law or to declare what the law shall be or to exercise an unrestricted discretion in applying the law. E. g., Husband v. Cassel, 130 So.2d 69 (Fla.1961). Here, however, we are dealing with the long-standing responsibility vested in a prosecutor, as a member of the executive branch, to enforce the criminal laws of the state. As we stated in Johnson v. State, supra, the discretion of a prosecutor in deciding whether and how to prosecute is absolute in our system of criminal justice. That subsection 39.04(2)(4)4 calls for the state attorney to exercise his discretion in the “public interest” merely states a truism, for that obligation is already ascribed to him. But, defendants counter, the traditional role of the prosecutor is to determine the crime to be charged, not the status in which a person is treated. This last point overlooks the statutory provision upheld in our decision in Johnson v. State. The state attorney in seeking an indictment is, if successful, necessarily determining the status in which a juvenile will be treated as well as the offense with which he will be charged.

For the foregoing reasons we hold that subsection 39.04(2Xe)4, Florida Statutes (Supp.1978), comports with due process and equal protection under the federal and state constitutions and does not constitute an unlawful delegation of authority under article II, section 3 of the Florida Constitution. Accordingly, the decision of the trial court in State v. Cain, 381 So.2d 1361, is reversed and the decision of the trial court in Duncan v. State, 381 So.2d 1361, is affirmed. Both cases are remanded to their respective trial courts for proceedings not inconsistent with our decision.

It is so ordered.

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

      . A “child” is defined in subsection 39.01(7), Florida Statutes (Supp.1978), as follows:
      “Child” means any unmarried person under the age of 18 alleged to be dependent or any married or unmarried person who is charged with a violation of law occurring prior to the time that person reached the age of 18 years.

      . See Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Wlllner v. Commission on Character & Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958); Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951).

      . Justice Harlan in his concurring and dissenting opinion in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), asserted that Kent “did not purport to rest on constitutional grounds.” Id. at 66 n.1, 87 S.Ct. at 1464 n.1. Accord, State v. Steinhauer, 216 So.2d 214, 217 (Fla.1968), cert. denied 398 U.S. 914, 90 S.Ct. 1698, 26 L.Ed.2d 79 (1970). However, we went on to say in Steinhauer that In re Gault crystal-ized the statutory implication of Kent into constitutional standards “with reference to waiver hearings.” Id. at 218.

      . See Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).

      . See also art. II, § 3, Fla.Const. “The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.”

      . See Harrington & Co. v. Tampa Port Authority, 358 So.2d 168 (Fla.1978); Dickinson v. State, 227 So.2d 36 (Fla.1969); Smith v. Portante, 212 So.2d 298 (Fla.1968); City of Auburndale v. Adams Packing Ass’n, 171 So.2d 161 (Fla.1965); Delta Truck Brokers, Inc. v. King, 142 So.2d 273 (Fla.1963); Husband v. Cassel, 130 So.2d 69 (Fla.1961).

      . See Dickinson v. State and Delta Truck Brokers, Inc., supra, note 6. Because the standard is so broad, Cain and Duncan also assert, judicial review for abuse of discretion is precluded.

      .Indeed, there is considerable authority for the proposition that prosecutorial discretion is itself an incident of the constitutional separation of powers, and that as a result the courts are not to interfere with the free exercise of the discretionary powers of the prosecutor in his control over criminal prosecutions. See Woodward v. Wainwright, 556 F.2d 781 (5th Cir. 1977); Russell v. Parratt, 543 F.2d 1214 (8th Cir. 1976); United States v. Bland, 153 U.S. App.D.C. 254, 472 F.2d 1329 (1972), cert. denied, 412 U.S. 909, 93 S.Ct. 2294, 36 L.Ed.2d 975 (1973); United States v. Cox, 342 F.2d 167 (5th Cir.), cert. denied sub nom. Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965).


text:
    Sheldon COOK, Petitioner, v. STATE of Florida, Respondent.
    No. 54831.
    Supreme Court of Florida.
    March 27, 1980.
    Don S. Cohn, and Mitchell D. Aronson, Engel, Aronson, Fried & Cohn and Joel Hirschhorn, Hirschhorn & Freeman, Miami, for petitioner.
    Jim Smith, Atty. Gen. and James H. Greason, William M. Grodnick, Asst. Attys. Gen., Miami, for respondent.
   PER CURIAM.

The Court having accepted jurisdiction, and upon further consideration of the matter, we have determined that the Court is without jurisdiction. Therefore, certiorari is denied.

No Motion for Rehearing will be entertained by the Court. See Fla.R.App.P. 9.330(d).

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

ADKINS, J., concurs specially with an opinion, with which BOYD, J., concurs.

ADKINS, Justice,

concurring specially:

This cause is before us by petition for writ of certiorari, asserting conflict between the decision of the Third District Court of Appeal in Cook v. State, 360 So.2d 439 (Fla.3d DCA 1978), and this Court’s decisions in Wilson v. State, 134 Fla. 390, 184 So. 31 (1938); and State v. Petteway, 121 Fla. 822, 164 So. 872 (1935). Art. V, § 3(b)(3), Fla.Const.

The parties shall be referred to as they appeared in the trial court, petitioner as defendant and respondent as state.

The facts of this case are not in dispute. The attorney general’s office served defendant with a notice of taking deposition as a party defendant in an administrative proceeding. The defendant’s testimony at these depositions was subsequently used as a basis for criminal charges against him. The defendant moved to dismiss the information on the basis of statutory immunity. § 914.04, Fla.Stat. (1975). When this motion was denied he pled nolo contendere to two counts and appealed. The Third District Court of Appeal per curiam affirmed the conviction on authority of State ex rel. D’Amato v. Morphonios, 358 So.2d 1119 (Fla.3d DCA 1978).

Section 914.04, Florida Statutes, states in pertinent part:

No person, having been duly served with a subpoena . . shall be excused from attending and testifying . before any court having felony trial jurisdiction, grand jury, or State Attorney, upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state upon the ground or for the reason that the testimony or evidence . . required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture.

The attorney general is not mentioned as having authority to grant immunity. But the defendant contends the attorney general was acting as an arm of the state attorney since the deposition was in a proceeding governed by chapter 501, part II, Florida Statutes (1975), which includes the following:

“Enforcing authority” means the office of the state attorney if a violation of this part occurs in or affects the judicial circuit under the office’s jurisdiction and if a complaint of such violation has been referred to the state attorney by the Department of Legal Affairs. “Enforcing authority” means the Department of Legal Affairs if the violation occurs in or affects more than one judicial circuit or if the office of state attorney fails to act upon a violation within a reasonable period of time after it has been referred to him by the Department of Legal Affairs.

§ 501.203, Fla.Stat. (1975).

The defendant’s argument is untenable in light of the plain meaning of the immunity statute. The legislature clearly and unambiguously limited those who have the authority to grant immunity. According to a longstanding principle of statutory construction, this list should be presumed to be exclusive and any omissions to be deliberate. Thayer v. State, 335 So.2d 815 (Fla.1976).

Unlike DAmato v. Morphonios where the defendant was in fact questioned by a state attorney, albeit at a defense deposition, the defendant herein merely appeared and testified before the Department of Legal Affairs in furtherance of civil discovery in an .administrative lawsuit. In this instance the defendant could not have been granted immunity under section 914.04, Florida Statutes (1975), for the statute was inapplicable. His protection against divulging incriminating testimony lay in the federal and state constitutions, a protection which he did not seek.

The decisions cited by the defendant in support of conflict certiorari jurisdiction are not at odds with the decision of the Third District Court of Appeal herein. In Wilson v. State, a county solicitor entered into an immunity agreement with a person who testified in an investigation of gambling operations. The state challenged the county solicitor’s authority to grant immunity under the applicable statute. Chapter 5400, Acts 1905, section 1 protected persons compelled to testify “before any court upon any investigation or proceeding or trial.” This Court noted the investigation and taking of testimony by a county solicitor was as much a court proceeding as was a grand jury inquiry; thus the county solicitor had acted within the purview of the statute. The present immunity statute is far more specific than that which governed this Court’s decision in Wilson. There is no conflict in light of the material factual distinction. Neilsen v. City of Sarasota, 117 So.2d 731 (Fla.1960).

Similarly, in State v. Petteway, one who gave testimony before a county solicitor was protected by an immunity statute specifically geared to violations of primary election laws. Chapter 6469, Acts 1913, section 61 required attendance and testimony “upon any trial, hearing proceeding or lawful investigation or judicial proceeding” but granted immunity in return for such testimony. Without directly addressing the issue of whether the county solicitor had authority to confer immunity this Court observed that the intent of the statute was to offer immunity as an inducement to those guilty of violating the .primary election laws in order to secure evidence against other violators. Since this was exactly the situation involved in Petteway, the defendant was held immune from prosecution. Again, the statutory basis upon which Petteway rests is factually distinguishable from supporting the instant decision.

In light of these considerations the writ of certiorari in this cause was improvidently issued.

BOYD, J., concurs.


text:
    Ernest ROBBINS, Petitioner, v. STATE of Florida, Respondent.
    No. 55857.
    Supreme Court of Florida.
    March 27, 1980.
    Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, Miami, for petitioner.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., Miami, for respondent.
   PER CURIAM.

This cause is before the Court on petition for certiorari to review the decision of the lower tribunal, Robbins v. State, 364 So.2d 871 (Fla. 3d DCA 1978), which conflicts with this Court’s decision in Johnson v. State, 366 So.2d 418 (Fla.1978). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

We grant certiorari and remand to the district court for reconsideration in light of this Court’s decision in Johnson.

It is so ordered.

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