author: BOWEN, Judge.

text:
    Dona Harvey SLY v. STATE.
    7 Div. 726.
    Court of Criminal Appeals of Alabama.
    May 27, 1980.
    Rehearing Denied June 17, 1980.

      Myron K. Allenstein, Gadsden, for appellant.

      Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was charged and convicted of “willfully failing or refusing to comply with a lawful order or direction of an officer invested by law with authority to direct, control or regulate traffic” under the provisions of Alabama Code 1975, Section 32-5-15.

The evidence presented by the State revealed that on the night of November 21, 1977, Alabama State Trooper James M. Gil-breath observed that a headlight on the defendant’s automobile was defective. He pursued the defendant for approximately one quarter of a mile with the blue light on his patrol car on before the defendant stopped.

Trooper Gilbreath got out of his vehicle and walked up to the defendant who was standing beside his car. The trooper was dressed in winter uniform which was the same as the uniform he had on at trial “with the exception it was long sleeved.” Gilbreath and the defendant were approximately two feet apart. The following occurred:

TROOPER: “Sir, I need to see your driver’s license.”
DEFENDANT: “For what?"
TROOPER: “Sir, if you will show me your driver’s license, I will be glad to explain.”

Trooper Gilbreath testified that the defendant “didn’t say anything else. He turned and got in his car and left.” Gilbreath pursued the defendant approximately three miles before the defendant stopped. Trooper Gilbreath stated that after the defendant was arrested and on the way to the county jail, the defendant stated that he did not stop because he thought that Trooper Gil-breath was a Glencoe police officer and the defendant had heard rumors that the Glen-coe police were harassing the public.

The prosecution is based on the failure of the defendant to show the trooper his driver’s license. The defendant contends that this evidence is insufficient as a matter of law to sustain his conviction because: (a) there was no lawful order but only a request; (b) even if the request be construed as an order, it was not directly related to the direction, control and regulation of traffic; (c) the defendant was not required to follow any order or instructions until the trooper had identified himself and stated the reason for stopping the defendant in accordance with Alabama Code 1975, Section 15-10-4; (d) the State failed to show that the trooper was on duty; and (e) the State failed to show that the defendant had the capacity to obey the order.

I

The defendant was indicted and convicted under Section 32-5-15 of the Alabama Code 1975 which provides: ■

“No person shall willfully fail or refuse to comply with any lawful order or direction of any police officer invested by law with authority to direct, control or regulate traffic.”

For an order of a police officer to be “lawful” within the meaning of this section, it must be “directly related to the direction, control and regulation of traffic.” Coughlin v. State, 56 Ala.App. 225, 228, 320 So.2d 739 (1975). This section “was not intended to, does not, and cannot give police officers unbridled power to arrest for refusal to obey any order they may choose to direct at a citizen.” Coughlin, 56 Ala.App. at 228, 320 So.2d at 743.

The trooper’s “request” to see the defendant’s driver’s license constituted a lawful order. Alabama Code 1975, Section 32-6-9, regulates the possession and display of a driver’s license.

“Every licensee shall have his license in his immediate possession at all times when driving a motor vehicle and shall display the same, upon demand of a judge of any court, a peace officer or a state trooper. However, no person charged with violating this section shall be convicted if he produces in court or the office of the arresting officer a driver’s license theretofore issued to him and valid at the time of his arrest.”

Driving with improper lights constitutes a traffic infraction, Opinion of the Clerk, No. 18, 364 So.2d 672, 673 (Ala.1978), and is a violation of one of the “Rules of the Road.” Alabama Code 1975, Section 32-5-240.

Observing a violation of the state traffic and vehicle safety regulations, the State Trooper had a statutory right to request and inspect the driver’s operating license. See Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 1398, 59 L.Ed.2d 660 (1979). The trooper had a right to “request” or “demand” the defendant’s driver’s license. The driver had a statutory duty to “display the same.” Alabama Code 1975, Section 32-6-9. Under these circumstances, the trooper’s “request” to see the defendant’s license constituted a “lawful order or direction” pursuant to the requirements of Section 32-5-15.

II

A request to inspect the operating license of one driving an automobile is “directly related to the direction, control and regulation of traffic” as required by Section 32-5-15. See Coughlin.

“[T]he states have a vital interest in insuring that . . . licensing, registration . . . requirements are being observed.”
* ifc * S¡! ifc i{S
“Automobile licenses are issued periodically to evidence that the drivers holding them are sufficiently familiar with the rules of the road and are physically qualified to operate a motor vehicle. The registration requirement and, more pointedly, the related annual inspection requirement in Delaware, are designed to keep dangerous automobiles off the road. Unquestionably, these provisions, properly administered, are essential elements in a highway safety program.” Prouse, 99 S.Ct. at 1398-9.

See also State v. Powell, 603 P.2d 143, 147 (Haw.1979).

III

The State Trooper was not required to inform the defendant of his authority and reason for inspecting the driver’s license. Although Section 15-10-4 provides that “[w]hen arresting a person without a warrant, the officer must inform of his authority and the cause of arrest,” the stopping of a motorist by a police officer for a traffic offense does not constitute an arrest.

“An arrest is to be distinguished from a mere temporary detention, and the stopping of a motorist for a routine check of compliance with requirements of motor vehicle laws, or for questioning or investigation after an apparent violation of such laws does not of itself constitute an arrest . . 61A C.J.S. Motor Vehicles § 593(1) (1970).
* * * * * *
“The stopping of a motorist for a routine check of compliance with requirements of motor vehicle laws or for questioning or investigation after an apparent violation of such laws is not in itself an arrest and subject to restriction of law with respect to arrests.” 61A C.J.S. Motor Vehicles § 593(2).

Moreover,

“An officer who has stopped a motorist for an apparent driving violation or dangerous act has the right to ask for the motorist to display his driver’s license and registration without warning him of his privilege to refrain from self-incriminatory statements.” 61A C.J.S. Motor Vehicles § 593(2).

IV

The defendant also contends that the evidence does not support his conviction because the State did not prove that the trooper was on duty when he requested the defendant’s driver’s license.

Section 32-5-15 requires the police officer to be “invested by law with authority to direct, control or regulate traffic.” Section 32-5-310 specifically provides that “[a]ny peace officer, including state troopers, . shall be authorized, and it is hereby made the duty of each of them to enforce the provisions of this chapter and to make arrests for any violation or violations thereof, Neither section makes any reference to whether the peace officer was on or off duty. This is not the situation where the State must prove that the officer was “engaged in the active discharge of his lawful duty [or duties]” as one of the elements of the offense. Robinson v. State, 361 So.2d 1109 (Ala.Cr.App.), reversed, 361 So.2d 1113 (Ala.1978).

V

Under the offense charged it was not necessary for the State to prove that the defendant had the capacity to obey the order and that the defendant had a driver’s license and refused to present it upon request. The State proved that the defendant willfully and intentionally refused to obey the lawful order of a State Trooper. The evidence affirmatively discloses that no attempt at compliance was made by the defendant. Everyone is presumed to know the law. Miller v. State, 39 Ala.App. 584, 105 So.2d 711, cert. denied, 268 Ala. 692, 105 So.2d 714 (1958). In a criminal prosecution the State is not required to prove impossibility of innocence. White v. State, 294 Ala. 265, 314 So.2d 857, cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975). The fact that the defendant did not have a driver’s license and therefore could not obey the trooper’s request is a matter in excuse or justification for the violation of the offense rather than an element of the crime. There is no contention in this case that the defendant did not in fact have a license.

Under the facts of this case the defendant could have been convicted of either a violation of Section 32-6-9 for failure to present his driver’s license upon request or of Section 32-5-15 for the willful failure or refusal to comply with the lawful order of any police officer. However, he could not have been convicted of both offenses.

VI

The defendant’s written requested charges were properly refused because they are incorrect statements of the law as applied to the facts of this case.

We have searched the record for error and have found none. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.

      . The defendant’s requested charges are:

        Charge No. 4

      “Title 15 — 10—4, Code of Alabama, 1975: When arresting a person without a warrant, the officer must inform of his authority and the cause of arrest.”

        Charge No. 5

      “Failure to produce a license upon request of a police officer does not constitute the offense of wilful failure to obey an officer.”

        Charge No. 6

      “The proper procedure when a driver fails to produce a driver’s license is to charge thát person with driving without a license.”


source: Caselaw Access Project

author: PER CURIAM. JONES, Justice

license: Public Domain

text:
    Ex parte Dona Harvey SLY. (In re: Dona Harvey Sly v. State of Alabama).
    79-734.
    Supreme Court of Alabama.
    Sept. 12, 1980.

      Myron K. Allenstein, Gadsden, for petitioners.
    No brief for State.
   PER CURIAM.

WRIT DENIED.

TORBERT, C. J., MADDOX, ALMON, SHORES and BEATTY, JJ., concur.

FAULKNER, JONES, and EMBRY, JJ., dissent.

BLOODWORTH, J., not sitting.

JONES, Justice

(dissenting):

I respectfully dissent. While I grimace at the thought of retarding police procedures beyond those restrictions constitutionally imposed or within the bounds of reasonableness, I cannot concede to the majority’s “carte blanche” treatment of the actions practiced by the law enforcement officer in the instant case.

To characterize an unexplained infringement upon one’s personal privacy and right to move from one place to another as within the realm of acceptable propriety is to further erode the fundamental freedom concomitant with a true democracy. In failing to require from an officer a logical explanation for a “stop” as a quid pro quo for the right to make such a stop, the majority implicitly sanctions what may often be prolonged, unexplained detention as incident to such action.

A police officer who accosts an individual and restrains his freedom to walk away has “seized” that person. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A stop, as occurred in this instance, albeit of an individual’s automobile, is nevertheless a “seizure” within the meaning of Terry. See also U. S. v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976).

In Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), a policeman stopped an automobile to check the operator’s driver’s license and the car’s registration. The patrolman was not acting pursuant to any standards, guidelines or procedures pertinent to document spot checks. Additionally, the officer testified that prior to such stop he had observed neither traffic or equipment violations nor any suspicious activity, and that his sole reason for stopping the car was for a spot check of the license and registration certificate.

In excluding evidence seized pursuant to such stop, Mr. Justice White, speaking for a majority of the Court, in Prouse, said:

. The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of ‘reasonableness’ upon the exercise of discretion by government officials, including law-enforcement agents, in order ‘ “to safeguard the privacy and security of individuals against arbitrary invasions. . . . ” ’ Marshall v. Barlow’s, Inc., 436 U.S. 307, 312, 98 S.Ct. 1816, 1820 (1978), quoting Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967).”

A person operating an automobile does not lose the reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. While the facts before us are not exactly aligned with those of Prouse, their similarity is such that one need not strain to find the probability of a grave danger of abuse of discretion. See U. S. v. Martinez-Fuerte, supra, 428 U.S. at 559, 96 S.Ct. at 3083. Likewise, the issue is different. Here, it is not the right to stop the vehicle that is challenged, only the right to demand that the operator display his driver’s license absent an explanation by the officer of the reason for the stop. But, implicit in Prouse, the right of an operator of a stopped car is not to display his license upon demand of a law enforcement officer if such display is the only reason for the stop.

The fact that the officer later makes known, or can prove, an articulable ground for identifying the operator as a violator is an insufficient basis for permitting the officer to withhold such fact from the driver until after he complies with the officer’s demand to display his driver’s license. This rationale allows the officer to violate the spirit of Prouse with impunity. Furthermore, the imposition of a requirement that the officer, when requested to do so, inform the stopped motorist of the purpose for the intrusion is no undue burden on the officer in the exercise of his duties. Thus, I would hold that, as a matter of law, Sly did not disobey a lawful order when he drove away from the officer without displaying his driver’s license.

FAULKNER and EMBRY, JJ., concur.


author: PER CURIAM.

text:
    THE FLORIDA BAR. In re FLORIDA RULES OF APPELLATE PROCEDURE.
    No. 58984.
    Supreme Court of Florida.
    July 3, 1980.
    L. David Shear, President, and Leonard H. Gilbert, President-elect, The Florida Bar, Tampa, and Susan R. Whaley, Tampa, and Everett P. Anderson, Tallahassee, and Betsy E. Hartley, Talburt, Kubicki & Bradley, Miami, of the Appellate Rules Committee.
   PER CURIAM.

In accordance with this Court’s procedures for the presentation of proposed amendments and revisions to Florida rules of practice and procedure each four years, the Appellate Rules Committee of The Florida Bar has submitted amendments to the Florida Rules of Appellate Procedure for adoption by the Court. At the request of the Committee, additional amendments to the rules may be submitted to the Court by the Committee not later than October 15, 1980, for the purpose of conforming the appellate rules to the constitutional amendment adopted by the voters of Florida on March 11, 1980, and to incorporate within the rules the emergency appellate rules adopted by the Court immediately following the adoption of the constitutional proposal.

There being no controversy with regard to the proposals, the Court adopts the following amendments to the Florida Rules of Appellate Procedure and the accompanying notes, effective 12:01 a. m., January 1,1981.

It is so ordered.

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

1. Rule 9.100(c) is amended as follows:

(c) Exceptions; Common Law Certiorari; Review of Non-Final Orders and Non-Final Administrative Action. A petition Petitions for common law certiorari, for certio-rari to review non-final orders within the jurisdiction of the courts described in Rule 9.030(a)(2)(B). (b)(2) and (e)(2). and for review of non-final administrative action shall be filed within 30 days of rendition of the order or of the administrative action to be reviewed. A copy shall be furnished to the person (or chairperson of a collegial administrative agency) issuing the order.

1980 Committee Note: Section (c) was amended to place the 30 day time limit for filing certiorari petitions on all types of certiorari, including non-final appeals in the Supreme Court and on all petitions for review of non-final administrative action, as well as common law certiorari.

2. Rule 9.100(d)(1) and (2) are amended as follows:

(1) A petition to review an order excluding the press or public from access to any proceeding, any part of a proceeding, or any judicial records, if the proceedings or records are not required by law to be confidential, shall be filed in the appropriate-district court of appeal as soon as practicable following rendition of the order to be reviewed, if written, or announcement of the order to be reviewed, if oral. A copy shall be furnished to the person (or chairperson of the collegial administrative agency) issuing the order, and to the parties to the proceeding.

(2) The district court shall immediately consider the petition to determine whether a stay of proceedings in the lower tribunal is appropriate, and on its own motion or that of any party the court may order a stay on such conditions as may be appropriate.

1980 Committee Note: Section (d) was amended to delete references to the district courts of appeal as the proper court for review of orders excluding the press and public, since the appropriate court could also be a circuit court or the Supreme Court.

3. Rule 9.200(b)(1) and (2) are amended as follows:

(1) Within 10 days of filing the notice, the appellant shall designate those portions of the transcript of proceedings not on file deemed necessary for inclusion in the record. Within 20 days of filing the notice, an appellee may designate additional portions of the proceedings. Copies of designations shall be served on the court reporter. Costs of transcription the original and all copies of the transcript of proceedings shall be borne initially by the designating party, subject to appropriate taxation of costs as prescribed by Rule 9.400.

(2) Within 30 days of service of a designation, the court reporter shall transcribe and deliver to the clerk of the lower tribunal the designated proceedings and shall furnish copies to the parties such copies-as they order. The transcript of proceedings shall be securely bound in volumes not to exceed 200 pages each. Each volume shall be prefaced by an index containing the names of the witnesses, a list of all exhibits offered and introduced in evidence, and the pages where each may be found.

1980 Committee Note: Sections (b)(1) and (2) were amended to specify that the party designating portions of the transcript for inclusion in the record on appeal shall pay for the cost of transcription and shall pay for and furnish a copy of the portions designated for all opposing parties. See Rule 9.420(b) and 1970 Amendment thereto relating to limitations of number of copies.

4. Rule 9.300(b) is amended as follows:

(b) Effect on Proceedings. Except as prescribed by section (d) of this rule, service of a motion shall toll the time schedule of any proceeding in the court until disposition of the motion. An order granting an extension of time for any act shall automatically extend the time for all other acts which bear a time relation to it. A conformed copy of an order extending time entered by either the court or a lower tribunal shall be transmitted forthwith to the court other by the appropriate clerk until the record has been transmitted to the court.

1980 Committee Note: Section (b) was amended to require the clerk of either court to notify the other clerk when an extension of time has been granted, up to the time that the record on appeal has been transmitted to the court, so that the clerk of the lower tribunal will be able to properly compute the time for transmitting the record on appeal, and that both courts may properly compute the time for performing subsequent acts.

5. Rule 9.420(b) is amended as follows:

(b) Service. All original papers shall be filed either before service or immediately thereafter. A copy of all documents filed pursuant to these rules shall, before filing or immediately thereafter, be served on each of the parties. In the event the-parties are so numerous that this requirement is onerous, The lower tribunal before the record is transmitted or the court on motion may limit, the number of copies to be served.

1980 Committee Note: Section (b) was amended to provide that either the lower tribunal or the court may limit the number of copies to be served. The rule contemplates that the number of copies may be limited upon any showing of good cause, for example, that the number of copies involved is onerous or that the appeal involves questions with which some parties have no interest in the outcome or are so remotely involved as not to justify furnishing a complete record to them at appellant’s initial cost. The availability of the original record at the clerk’s office of the lower tribunal until due at the appellate court is a factor to be considered.

6. Rule 9.600(a) is amended as follows:

(a) Concurrent Jurisdiction. Prior to the time the record is transmitted, the lower tribunal shall have concurrent jurisdiction with the court to render orders on any procedural matter relating to the cause, subject to the control of the court on its own motion or that of a party.

1980 Committee Note: Section (a) was amended to clarify the’ appellate court’s paramount control over the lower tribunal in the exercise of its concurrent jurisdiction over procedural matters. This amendment would allow the appellate court to limit the number of extensions of time granted by a lower tribunal, for example.

         See In re Emergency Amendments to Rules of Appellate Procedure, 381 So.2d 1370 (Fla.1980).


author: PER CURIAM. ENGLAND, Justice,

text:
    Johnny Paul WITT, Appellant, v. STATE of Florida, Appellee.
    No. 58329.
    Supreme Court of Florida.
    July 24, 1980.
    Rehearing Denied Oct. 13, 1980.

      Jack 0. Johnson, Public Defender, and Paul C. Helm and James R. Wulchak, Asst. Public Defenders, Bartow,, for appellant.
    Jim Smith, Atty. Gen., and Robert J. Landry, Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

In 1974, Johnny Paul Witt was tried and convicted of first-degree murder for the killing of Jonathan Kushner. The trial judge accepted the jury’s recommendation that Witt be sentenced to death and, on appeal to this Court, the trial court’s judgment of conviction and sentence were affirmed. Witt v. State, 342 So.2d 497 (Fla.), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977); reh. denied, 434 U.S. 1026, 98 S.Ct. 755, 54 L.Ed.2d 774 (1978). Witt subsequently sought post-conviction relief in the trial court pursuant to Florida Rule of Criminal Procedure 3.850, which was denied. He now seeks review of that denial.

By this appeal Witt raises essentially six issues, all of which he admits either were raised in the direct appeal from his conviction and sentence, or could have been raised at that time. He predicates his appeal on alleged changes in case law since his first appeal was concluded, asserting the right to obtain the benefits of subsequent, favorable case law developments relating to capital punishment and to criminal law generally. The particular changes which Witt presents for our consideration are these:

(1)an alleged change in the law relative to sentencing, reflected primarily in Elledge v. State, 346 So.2d 998 (Fla. 1977), concerning the significance of improper aggravating circumstances where at least one mitigating circumstance has been found to exist;

(2) an alleged change in the law relative to sentencing, reflected in Hall v. State, 381 So.2d 683 (Fla. 1979), concerning the requirements for a written enumeration of the findings in aggravation and mitigation;

(3) an alleged change in the law relative to sentencing, reflected in Shue v. State, 366 So.2d 387 (Fla. 1978), and in Burch v. State, 343 So.2d 831 (Fla. 1977), concerning definitions for the mitigating circumstances set out in sections 921.141(6)(b), (e), and (f), Florida Statutes (1979);

(4) an alleged change in the law, reflected in Smith v. Estelle, 602 F.2d 694 (5th Cir. 1979), cert. granted, 445 U.S. 926, 100 S.Ct. 1311, 63 L.Ed.2d 758 (1980), making inadmissible in a sentencing proceeding statements made during a court-ordered psychiatric examination not preceded by Miranda warnings;

(5) an alleged change in the law, reflected by an aggregation of the individual opinions in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), requiring that the state, before imposing the death penalty, establish that the defendant intended to kill the victim; and

(6) an alleged change in the law, reflected in Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), relating to the efficacy of a defendant’s waiver of his right to counsel.

The underlying issue posed by this appeal, however, concerns the significance of a change in decisional law on the finality of a fully-adjudicated capital case. Simply stated, we are confronted with a threshold decision as to when a change of decisional law mandates a reversal of a once valid conviction and sentence of death. The issue is a thorny one, requiring that we resolve a conflict between two important goals of the criminal justice system — ensuring finality of decisions on the one hand, and ensuring fairness and uniformity in individual cases on the other — within the context of post-conviction relief from a sentence of death.

The importance of finality in any justice system, including the criminal justice system, cannot be understated. It has long been recognized that, for several reasons, litigation must, at some point, come to an end. In terms of the availability of judicial resources, cases must eventually become final simply to allow effective appellate review of other cases. There is no evidence that subsequent collateral review is generally better than contemporaneous appellate review for ensuring that a conviction or sentence is just. Moreover, an absence of finality easts a cloud of tentativeness over the criminal justice system, benefiting neither the person convicted nor society as a whole.

Post-conviction relief procedures, such as those authorized by our Rule 3.850, offer an avenue to challenge a once final judgment and sentence in limited instances, and for limited reasons. The United States Supreme Court recently noted:

It has, of course, long been settled law that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment. The reasons for narrowly limiting the grounds for collateral attack on final judgments are well known and basic to our adversary system of justice.

United States v. Addonizio, 442 U.S. 178, 184 & n.ll, 99 S.Ct. 2235, 2240 & n.ll, 60 L.Ed.2d 805 (1979) (footnote omitted). See also Linkletter v. Walker, 381 U.S. 618, 637-38, 85 S.Ct. 1731, 1741-42, 14 L.Ed.2d 601 (1965). The law’s concern for finality of decisions is in no way diminished by the availability and utilization of a collateral remedy such as Rule 3.850.

The doctrine of finality should be abridged only when a more compelling objective appears, such as ensuring fairness and uniformity in individual adjudications. Thus, society recognizes that a sweeping change of law can so drastically alter the substantive or procedural underpinnings of a final conviction and sentence that the machinery of post-conviction relief is necessary to avoid individual instances of obvious injustice. Considerations of fairness and uniformity make it very “difficult to justify depriving a person of his liberty or his life, under process no longer considered acceptable and no longer applied to indistinguishable cases.”

Unfortunately, drawing or defining the line where finality gives way to fairness based on a change of law is no simple task. The United States Supreme Court has struggled with this problem, developing what has been characterized as a “staggeringly intricate body of law governing the question whether new constitutional doctrines should be ‘retroactively’ or ‘prospectively’ applied.” Indeed, one former member of that court has characterized the course of law in this area as “almost as difficult to follow as the tracks made by a beast of prey in search of its intended victim.” Mackey v. United States, 401 U.S. 667, 676, 91 S.Ct. 1160, 1172, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in part and dissenting in part).

Without attempting to survey this relatively unsatisfactory body of law, we note that the essential considerations in determining whether a new rule of law should be applied retroactively are essentially three: (a) the purpose to be served by the new rule; (b) the extent of reliance on the old rule; and (c) the effect on the administration of justice of a retroactive application of the new rule. Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Brewer v. State, 264 So.2d 833, 834 (Fla. 1972); State v. Steinhauer, 216 So.2d 214, 219 (Fla. 1968), cert. denied, 398 U.S. 914, 90 S.Ct. 1698, 26 L.Ed.2d 79 (1970).

A determination that a new principle of law should be fully retroactive may mandate its recognition and application on collateral review. Thus, in this proceeding we must balance the interests of fairness and uniformity for Johnny Paul Witt against the interests of decisional finality, in the context of alleged subsequent favorable changes of law. The balancing problem is presented squarely here, for there are no bases for Witt’s collateral attack which are independent of alleged law changes.

The general difficulty of resolving the conflicting interests presented by law changes is heightened by the fact that this is a capital case. Uniquely, capital punishment, on the one hand, connotes special concern for individual fairness because of the possible imposition of a penalty as unre-deeming as death. On the other hand, both the frequency of Florida “law changes” involving our relatively new capital punishment statute, and the unavoidable delay in deciding these cases, suggest that finality will be illusory if each convicted defendant is allowed the right to reliti-gate his first trial upon a subsequent change of law. Cf. Godfrey v. Georgia, - U.S. -, -, 100 S.Ct. 1759, 1779, 64 L.Ed.2d 398 (1980) (“[T]he majority today endorses the argument that I thought we had rejected in Gregg: namely, ‘that no matter how effective the death penalty may be as a punishment, government, created and run as it must be by humans, is inevitably incompetent to administer it.’ ”) (White, J., dissenting).

We know that the outcome of a capital case may depend upon the speed with which the trial and the appellate process progress. A variety of reasons may account for the time disparities involved in concluding judicial labors with regard to individuals found guilty of capital crimes and sentenced to death. Trials are delayed for one reason or another. Appeals are not prosecuted with equal diligence. Our ability to review any case varies with the complexity of the issues, the amount of disagreement among the members of the court, the arrival of cases presenting comparable or relevant legal issues, the volume of our other work, and numerous other obvious reasons. It has been suggested that delay could result from a factor as minor as a common cold.

Because the mere passage of time brings inevitable, attendant refinements of the law, disparities of result on direct review are unavoidable. We know, then, that if there were to be absolute uniformity and fairness in the application of our capital punishment law, all relevant changes of law would have to be recognized in post-conviction relief proceedings.

In considering the ideal of individual fairness in capital cases, however, two countervailing considerations must be weighed. First, if punishment is ever to be imposed for society’s most egregious crimes, the disposition of a particular case must at some point be considered final notwithstanding a comparison with other individual cases. Second, we cannot ignore the purpose for our post-conviction relief procedure in cases where a death penalty has been imposed, for Florida’s post-conviction relief rule came about as a narrow response to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). That decision, it will be recalled, first announced that each state must provide counsel to every indigent defendant charged with a felony at all critical stages of the proceeding. The Gideon decision constituted a change of law of such magnitude that it was applied retroactively in order to remedy the basic constitutional injustice of prior felony trials without counsel.

This Court promptly responded to Gideon, adopting a procedure just fourteen days after the decision to allow prisoners the opportunity and a forum to challenge those prior convictions which might be affected by Gideon’s law change. The procedural rule spawned by Gideon became Rule 3.850. Quite clearly, the main purpose for Rule 3.850 was to provide a method of reviewing a conviction based on a major change of law, where unfairness was so fundamental in either process or substance that the doctrine of finality had to be set aside. To the extent we permit this rule to be used as a second procedure to balance individual applications of the death penalty — our first being on direct review of the conviction and sentence — the limited historical role for post-conviction proceedings becomes distended. For the policy reasons which underpin the finality of decisions, and because the imposition of any death penalty would be averted by a different construction of our rule, we now declare our adherence to the limited role for post-conviction relief proceedings, even in death penalty cases.

The issues brought to us in this appeal are asserted by Witt to be based, essentially, on two judicial decisions involving changes of law-Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974), and Vertree v. Wainwright, 184 So.2d 420 (Fla. 1966). The latter is purely an application of the limited role for post-conviction relief which was spawned by Gideon, for Vertree authorized collateral review based on a change of law reflected in a case which had held that post-conviction relief was available to determine the volun-tariness of a defendant’s guilty plea when he was not properly apprised of his right to counsel. The Supreme Court’s Davis decision, however, is not so easily classified.

Davis was convicted and sentenced for refusing to obey an order of induction, despite his claim that the regulation authorizing his induction was not validly authorized by statute. Davis’ claim was rejected on appeal by a panel of the court of appeals, and his conviction was affirmed. Later, a different panel of the same court of appeals upheld the same claim Davis had made in a similar, but unrelated, case. Davis then sought collateral review of his conviction and sentence under 28 U.S.C. § 2255, the federal post-conviction relief statute. On certiorari review, the United States Supreme Court held that Davis’ claim — a non-constitutional change of law resulting from an inconsistent opinion by another panel of the same court of appeals — was cognizable on collateral review under § 2255, so long as the asserted change or error is a “fundamental defect which inherently results in a complete miscarriage of justice” and “presents exceptional circumstances where the need for the remedy ... is apparent.” 417 U.S. at 346, 94 S.Ct. at 2305 (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)). The application of Davis in Florida is suggested because our Rule 3.850 was modeled after 28 U.S.C. § 2255, and constructions of the federal statute have generally been considered persuasive for questions which arise under the Florida rule.

We start by noting that we are not obligated to construe our rule concerning post-conviction relief in the same manner as its federal counterpart, at least where fundamental federal constitutional rights are not involved. First, the concept of federalism clearly dictates that we retain the authority to determine which “changes of law” will be cognizable under this state’s post-conviction relief machinery. Second, we know of no constitutional requirement that the scope of Rule 3.850 be fully congruent with that of the analogous federal statute. A limited role for the rule in no way abridges the federal due process right to be heard, since state prisoners will still be free to seek collateral relief in the federal courts under that system’s seemingly more relaxed standards. In fact, several commentators have argued forcefully that state courts should narrow their grounds for collateral relief because of the duality of review, and at least one state has limited post-conviction relief narrowly to constitutional claims.

Not being required to accord Davis breadth to post-conviction proceedings under our rule, we decline to do so. To allow non-constitutional claims as bases for post-conviction relief is to permit a dual system of trial and appeal, the first being tentative and nonconclusive. Our justice system could not accommodate such an expansion; our citizens would never tolerate the deleterious consequences for criminal punishment, deterrence and rehabilitation. We reject, therefore, in the context of an alleged change of law, the use of post-conviction relief proceedings to correct individual miscarriages of justice or to permit roving judicial error corrections, in the absence of fundamental and constitutional law' changes which cast serious doubt on the veracity or integrity of the original trial proceeding.

We emphasize at this point that only major constitutional changes of law will be cognizable in capital cases under Rule 3.850. Although specific determinations regarding the significance of various legal developments must be made on a case-by-case basis, history shows that most major constitutional changes are likely to fall within two broad categories. The first are those changes of law which place beyond the authority of the state the power to regulate certain conduct or impose certain penalties. This category is exemplified by Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), which held that the imposition of the death penalty for the crime of rape of an adult woman is forbidden by the eighth amendment as cruel and unusual punishment. The second are those changes of law which are of sufficient magnitude to necessitate retroactive application as ascertained by the three-fold test of Sto-vall and Linkletter. Gideon v. Wainwright, of course, is the prime example of a law change included within this category.

In contrast to these jurisprudential upheavals are evolutionary refinements in the criminal law, affording new or different standards for the admissibility of evidence, for procedural fairness, for proportionality review of capital cases, and for other like matters. Emergent rights in these categories, or the retraction of former rights of this genre, do not compel an abridgement of the finality of judgments. To allow them that impact would, we are convinced, destroy the stability of the law, render punishments uncertain and therefore ineffectual, and burden the judicial machinery of our state, fiscally and intellectually, beyond any tolerable limit.

Incidental to the notion of what constitutes a law change for post-conviction relief purposes is the problem of what courts bring about such changes. Even within the narrow area of major constitutional law changes, there must be some restriction on the number of tribunals which can adopt law changes sufficient to warrant relief in post-conviction proceedings. The reason is obvious. In Florida alone there are 500 trial court judges, 39 district court judges sitting in panels of three on five appellate courts, and the Supreme Court. Little finality would attend criminal convictions if each of these tribunals was an eligible source of law change. Similar considerations apply to the host of federal and other non-Florida judges from whom new “law” might emerge. Consequently, we hold that only this Court and the United States Supreme Court can adopt a change of law sufficient to precipitate a post-conviction challenge to a final conviction and sentence.

Applying these principles to the present case, we find that Witt may not raise most of the matters he has presented by way of collateral attack on his original conviction and sentence. Witt’s first, second, and third alleged law changes are nonconstitutional, evolutionary developments in the law, arising from our case-by-case application of Florida’s death penalty statute. Being of that genre, they may not be raised in this proceeding. His fourth alleged law change emanates from an intermediate federal court and is likewise ineligible for consideration in a 3.850 proceeding. Witt’s fifth alleged' law change, although arguably constitutional in nature and emanating from a proper court, is not in fact a “change of law” inasmuch as it is not a precedent.

Witt’s sixth alleged law change— the development reflected in Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977)-is the only claim which, on its face, could qualify for relief under Rule 3.850. Normally, we would now determine whether Brewer should be retroactively applied to the instant case under the three-part test of Stovall and Linkletter. That exercise would be futile, however, for the factual predicate for Witt’s sixth claim precludes any benefit for Witt even if Brewer were retroactively applied. The Supreme Court in Brewer did not hold that a defendant may not waive his right to counsel after requesting an attorney. Rather, it merely found that, under the circumstances, that defendant had not done so and the state had failed to meet its burden of proving “an intentional relinquishment or abandonment of a known right or privilege.” Id. at 404, 97 S.Ct. at 1242 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). In contrast, we specifically held on Witt’s direct appeal that Witt had waived his right to counsel and that “the heavy burden of demonstrating that the defendant knowingly and intelligently waived his right to counsel was met under the circumstances in this case.” Witt v. State, 342 So.2d at 500. Witt’s request for certiorari was denied by the United States Supreme Court. That confirmed, factual determination is now the “law of the case,” and as such is ineligible for reevaluation in order to now raise a legal issue under Brewer v. Williams for retroactive application.

To summarize, we today hold that an alleged change of law will not be considered in a capital case under Rule 3.850 unless the change: (a) emanates from this Court or the United States Supreme Court, (b) is constitutional in nature, and (c) constitutes a development of fundamental significance. Most law changes of “fundamental significance” will fall within the two broad categories described earlier.

For the reasons expressed, the order of the trial court denying Witt any relief in his 3.850 proceeding is affirmed. The stay of execution ordered on May 14 is hereby vacated.

It is so ordered.

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

ENGLAND, J., concurs with an opinion.

ENGLAND, Justice,

concurring.

I write to comment on the significance of today’s decision, for I have no illusions as to its reach. The legislature and the United States Supreme Court have determined that capital punishment is permissible for certain crimes committed in Florida. By adopting a pragmatic approach to post-conviction relief proceedings, the Court has in essence created a procedural means under state law by which executions can take place. I am convinced that the adoption of any other approach would be tantamount to a judicial invalidation of Florida’s capital punishment statute, for no executions would take place, if “change of law” were defined to include any refinement in the capital punishment statute or any noncon-stitutional change of law. Under such definitions there would never be a time when a defendant facing execution could not identify a law change sufficient to initiate a collateral attack on his sentence and conviction.

The heightened problem of law changes in Florida’s capital punishment scheme is exemplified by a look at only two cases from among our many. Sawyer v. State, 313 So.2d 680 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976), and Brown v. State, 367 So.2d 616 (Fla.1979), illustrate the point that the outcome of a capital case may depend simply upon the speed with which the trial and the appellate process progress.

Anthony Sawyer was convicted and sentenced to death for the January 1973 killing of a liquor store owner’s son in Dade County. While the jury recommended a life sentence, the trial judge imposed a sentence of death, citing additional facts not available to the jury as the basis for overriding its recommendation. An appeal was filed in November 1973 and, finding no reversible error, this Court affirmed both the conviction and sentence in February 1975. Under standards subsequently developed, three of the four aggravating factors would have been rejected. My review of the record of Sawyer’s trial suggests that his sentence in all probability would today be vacated, and that a life sentence would be imposed or the case remanded for resentencing.

Henry Brown was also sentenced to death in connection with a 1973 Dade County murder — the August 1973 killing of an elderly man who had just cashed his social security check. As in • Sawyer, the jury recommended a life sentence and the trial judge imposed a sentence of death on the basis of four aggravating circumstances. One mitigating factor was also found to exist. An appeal was not filed in this Court until October 1975. In 1979, we vacated Brown’s death sentence and ordered the entry of a life sentence, based primarily on our intervening decision concerning the significance of a jury’s life recommendation. See Tedder v. State, 322 So.2d 908 (Fla.1975).

The consequence of our decision today, of course, is that, unless the United States Supreme Court determines otherwise, individuals in Florida may well be executed for crimes similar to those committed by others who have been spared the death penalty. Disparities in sentencing will occur — despite all the rhetoric about death being different and the courts exercising special scrutiny to prevent arbitrariness — simply to preserve overriding societal needs.

      . In relevant part, Rule 3.850 reads as follows:
      A prisoner in custody under sentence of a court established by the laws of Florida claiming the right to be released upon the ground that the judgment was entered or that the sentence was imposed in violation of the Constitution or Laws of the United States, or of the State of Florida, or that the court was without jurisdiction to enter such judgment or to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or that his plea was given involuntarily, or the judgment or sentence is otherwise subject to collateral attack, may move the court which entered the judgment or imposed the sentence to vacate, set aside or correct the judgment or sentence.
      Fla.R.Crim.P. 3.850.

       Inroads on the concept of finality tend to, undermine confidence in the integrity of our procedures .... Moreover, [the] increased volume of judicial work associated with the processing of collateral attacks inevitably impairs and delays the orderly administration of justice. Because there is no limit on the time when a collateral attack may be made, evidentiary hearings are often inconclusive and retrials may be impossible if the attack is successful. .

        .See Hankerson v. North Carolina, 432 U.S. 233, 246-48, 97 S.Ct. 2339, 2347, 53 L.Ed.2d 306 (1977) (Powell, J., concurring); Mackey v. United States, 401 U.S. 667, 681-92, 91 S.Ct. 1160, 1174-79, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring); Sanders v. United States, 373 U.S. 1, 24-25, 83 S.Ct. 1068, 1081, 1082, 10 L.Ed.2d 148 (1963) (Harlan, J., dissenting); Brown v. Allen, 344 U.S. 443, 536-48, 73 S.Ct. 397, 424-430, 97 L.Ed. 469 (1953) (Jackson, J., concurring). Accord, Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 444-53 (1963).

      . See also ABA Standards Relating To Post-Conviction Remedies 3 (Approv. Draft 1968) (“A general principle underlying these standards is that once an issue of fact or law has been finally determined, that adjudication ought to be final and binding.”).

      . Id. at 37.

      . P. Bator, P. Mishkin, D. Shapiro & H. Wech-sler, Hart & Wechsler’s The Federal Courts And The Federal System 1477 (2d ed. 1973) [hereinafter cited as Hart & Wechsler],

      . The retroactivity-prospectivity problem has produced a vast array of scholarly literature. See, e. g., Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441 (1963); Meador, Habeas Corpus and the “Retroactivity Illusion," 50 Va.L.Rev. 1115 (1964); Mishkin, Foreward: The High Court, The Great Writ, and the Due Process of Time and Law, 79 Harv.L.Rev. 56 (1965); Schwartz, Retroactivity, Reliability, and Due Process: A Reply to Professor Mishkin, 33 Chi.L.Rev. 719 (1966); Wellington, Common Law Rules and Constitutional Double Standards: Some Notes on Adjudication, 83 Yale L.J. 221 (1973).

      . It bears mention that the constitutionality of Florida’s capital sentencing procedures, § 921.-141, Florida Statutes (1979), is contingent upon this Court’s role of reviewing each case to ensure uniformity in the imposition of the death penalty. See Proffitt v. Florida, 428 U.S. 242, 258 59, 96 S.Ct. 2960, 2969, 49 L.Ed.2d 913 (1976).

      . Florida’s death penalty statute was enacted in 1973. This Court has decided 140 capital appeals under the statute in the last 6 years and had 112 additional death penalty appeals pending as of May 1, 1980. ,

      . Capital cases have sometimes required five years or more for disposition. See, e. g., Gafford v. State, 387 So.2d 333 (Fla.1980).

      . Schaefer, The Control of “Sunbursts'”: Techniques of Prospective Overruling, 42 N.Y.U.L.Rev. 631, 645 (1967).

      . See Davis v. United States, 417 U.S. 333, 368, 94 S.Ct. 2298, 2315, 41 L.Ed.2d 109 (1974) (Rehnquist, J., dissenting).

      . See Linkletter v. Walker, 381 U.S. 618, 628 n.13, 85 S.Ct. 1731, 1737 n.13, 14 L.Ed.2d 601 (1965).

        . In Re Criminal Procedure Rule No. 1, 151 So.2d 634 (Fla. 1963). As the Court noted in Roy v. Wainwright, 151 So.2d 825, 826-27 (Fla. 1963), the rule was designed to relieve the burdens on Florida’s courts after Gideon by making “procedural facilities available to state prisoners who might have belatedly acquired rights which were not recognized at the time of their conviction.”

      . See Mason v. State, 176 So.2d 76 (Fla. 1965).

      . We have simplified our discussion of the procedural history of Davis for purposes of clarity and convenience. For a complete treatment, see Davis v. United States, 417 U.S. 333, 334-41, 94 S.Ct. 2298, 2299-02, 41 L.Ed.2d 109 (1974).

      . .The Court found that Davis’ claim qualified under this test. Id. at 347, 94 S.Ct. at 2305.

      . See Roy v. Wainwright, 151 So.2d 825 (Fla. 1963); Reddick v. State, 190 So.2d 340 (Fla.2d DCA 1966).

      . For an historical analysis of § 2255, see United States v. Hayman, 342 U.S. 205, 210-19, 72 S.Ct. 263, 267-272, 96 L.Ed. 232 (1952).

      . See Comment, State Court Withdrawal From Habeas Corpus, 114 U.Pa.L.Rev. 1081, 1089 (1966).

      . See Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142, 168 (1970) (“[W]hen a state has done what it considers right and has met due process standards, it should not feel obligated to do more merely because federal habe-as may be available in some cases where it declines to allow state collateral attack.”) (emphasis in original); Comment, supra note 20.

      . See Commonwealth v. Rightnour, 469 Pa. 107, 364 A.2d 927 (1976) (4 3 decision).

      . It goes almost without saying that our rejection of Davis where a death penalty is involved connotes its rejection in less severe cases.

      . Aside from our disinclination to follow Davis’ seeming breadth, we believe its refined scope would not benefit Johnny Paul Witt on this appeal. In more recent decisions the United States Supreme Court and various lower federal courts have given Davis a restrictive reading, limiting its application to those situations where a nonconstitutional law change thoroughly undermines the substantive basis of the prior conviction such that the conduct for which the petitioner is being punished is no longer illegal. See United States v. Addonizio, 442 U.S. 178, 185-87, 99 S.Ct. 2235, 2240-41, 60 L.Ed.2d 805 (1979); Stone v. Powell, 428 U.S. 465, 477 n.10, 96 S.Ct. 3037 n.10, 49 L.Ed.2d 1067 (1976); United States ex rel. Machi v. United States Dept. of Prob. & Parole, 536 F.2d 179 (7th Cir. 1976); United States v. Loschiavo, 531 F.2d 659 (2d Cir. 1976); United States v. Travers, 514 F.2d 1171 (2d Cir. 1974). See generally 7 Colum. Human Rights L.Rev. 389 (1975); Comment, Availability of Federal Post-Conviction Relief In Light Of A Subsequent Change In Law, 66 Jour.Crim.L. & Criminology 117 (1975). Tested against this more refined standard, Witt’s alleged law changes provide no basis to upset his conviction or sentence.

      . It should be noted that our analysis is applicable only to those situations where a change of law is asserted as a ground for collateral relief under Rule 3.850. Post-conviction claims involving the other enumerated grounds of Rule 3.850 — for example, a claim that the trial court was without jurisdiction — need not be of constitutional stature in order to provide a viable basis for relief. Indeed, the majority of cases under Rule 3.850 have not involved changes of law, and those cases will not be affected by today’s holding.

      . This category of law changes was adapted from Section 2.1(a)(vi) of the ABA Standards Relating to Post-Conviction Remedies (Approv. Draft 1968), which provides in relevant part:
      A post-conviction remedy ought to be sufficiently broad to provide relief (a) for meritorious claims challenging judgments of convictions, including claims:

      (vi) that there has been a significant change in law, whether substántive or procedural, applied in the process leading to applicant’s conviction or sentence, where sufficient reasons exist to allow retroactive application of the changed legal standard;

      . Compare Gideon with Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), wherein the Supreme Court refused to give retroactive application to the newly-announced exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

      . Florida’s voters recently reaffirmed their commitment to a criminal justice system which accommodates only one appeal as a matter of right when they amended the judiciary article of the constitution to eliminate some aspects of this Court’s jurisdiction which had become the equivalent of full, second appeals. See England, Hunter, & Williams, An Analysis of the 1980 Jurisdictional Amendment, 54 Fla.B.J. 406 (1980).

      . See Davis v. United States, 417 U.S. 333, 360-61, 94 S.Ct. 2298, 2311, 2312, 41 L.Ed.2d 109 (1974) (Rehnquist, J., dissenting).

      . It is interesting to note that commentators have been uniformly critical of the Supreme Court’s conclusion in Davis that an inconsistent opinion of another panel of the same court of appeals can constitute a “change of law.” See, e. g., Hart & Wechsler at 268 (1977 Supp.); The Supreme Court, 1973 Term, 88 Harv.L.Rev. 41, 220 (1974) (“By permitting collateral review under section 2255 in response to a nonauthori-tative decision . . . the Supreme Court appears to have unjustifiably extended the concept of change of law.”) (footnote omitted).

      . Smith v. Estelle 602 F.2d 694 (5th Cir. 1979), is pending on certiorari in the United States Supreme Court, 445 U.S. 926, 100 S.Ct. 1311, 63 L.Ed.2d 758 (1980). This lack of finality underscores our rejection of the orders and decisions of lower courts in the state and federal court systems.
      Although we do not address the merits of Witt’s argument concerning Smith v. Estelle, we note that the state contests its applicability to Witt’s trial on multiple grounds.

      . The aggregation of separate judicial opinions in a case does not produce a law-changing precedent. See Greene v. Massey, 384 So.2d 24 (Fla. 1980).

      . Obviously, the Court has no control over federal district court judges who may grant review in post-conviction relief or habeas corpus proceedings. Knowing no practical way to avoid that result, I acknowledge that reality in the belief, nonetheless, that multiple reviews within the state court system are inimical to an effective criminal justice system.

      . One factor in aggravation was predicated on pending criminal charges, rather than prior convictions. See 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). Two others were not included in the statutory list of aggravating circumstances. See Mikenas v. State, 367 So.2d 606 (Fla.1978). I note that Sawyer’s death sentence was later reduced to life imprisonment in a proceeding under Florida Rule of Criminal Procedure 3.800. State v. Sawyer, No. 73-1001-C (Cir.Ct.) (11th) (Aug. 6, 1976). Sentence review under that provision is, however, no longer available for this purpose. The Florida Bar Re Fla. Rules of Criminal Procedure, 343 So.2d 1247 (Fla.1977).


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

text:
    FLORIDA FARM BUREAU INSURANCE COMPANY, Petitioner, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, etc. et al., Respondents.
    No. 57036.
    Supreme Court of Florida.
    Aug. 28, 1980.
    Robert K. Rouse, Jr. of Smalbein, Eu-bank, Johnson, Rosier & Bussey, Daytona Beach, for petitioner.

      Richard A. Simon and Ronald L. Harrop of Gurney, Gurney & Handley, Orlando, and Frank M. Gafford, Lake City, for respondents.
    Marion R. Shepard of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for State Farm Mutual Automobile Insurance Company; and Larry Klein, West Palm Beach, for the Academy of Florida Trial Lawyers, amici curiae.
   ALDERMAN, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, First District, in Florida Farm Bureau Ins. Co. v. Government Employees Ins. Co., 371 So.2d 166 (Fla. 1st DCA 1979). Not only has the district court certified the question involved in this cause as being of great public interest, but its decision also has created conflict with our decisions in Reid v. State Farm Fire and Casualty Co., 352 So.2d 1172 (Fla.1977), and Shor v. Paoli, 353 So.2d 825 (Fla.1977). We adhere to our decisions in Shor v. Paoli and Reid v. State Farm Fire and Casualty Co. and again hold that a joint tortfeasor may seek and obtain a judgment for contribution from another joint tort-feasor even when that other tortfeasor is the spouse of the injured plaintiff who recovered damages from the first tortfeasor and that, in the absence of statutory prohibition, provisions of automobile liability insurance policies excluding from coverage members of the insured’s family or household are valid. We quash that part of the district court’s decision which holds family exclusion clauses to be invalid in contribution cases, and we reverse the contribution judgment entered by the trial court against Florida Farm Bureau Insurance Company.

The facts are undisputed. In July, 1976, Lance Cunningham and Cammie Deese were involved in a two-car collision. Myr-tis Deese, Cammie’s wife, who was injured in the accident, sued Lance Cunningham, M. A. Cunningham, the owner of the car which Lance was driving, and Government Employees Insurance Company (GEICO), the Cunninghams’ insurer. The Cunninghams and GEICO counterclaimed against Cammie Deese and his insurer, Farm Bureau, for contribution. The jury found Lance Cunningham ninety percent negligent and Cam-mie Deese ten percent negligent, and it awarded damages in the amount of $25,000 to Myrtis Deese. The Cunninghams and GEICO again moved for contribution against Cammie Deese and Farm Bureau. Farm Bureau denied liability, but Deese contended that if he was liable, his liability insurer, Farm Bureau, was also liable. The trial court granted the motion for contribution against Deese and Farm Bureau and entered final judgment against both.

The district court affirmed the trial court’s granting of Cunningham’s and GEI-CO’s contribution claim against Farm Bureau and held that family exclusion clauses within the context of contribution claims are contrary to public policy. It then framed the following question for our disposition: .

Does a family exclusion clause in an automobile liability insurance policy control over the uniform contribution among tortfeasors act to prevent one tortfeasor from seeking contribution from another tortfeasor when the other tortfeasor is the spouse of the injured person who has received damages from the first tort-feasor?

This question, however, is not the real issue in this cause. The question posed by the district court is essentially answered in Shor v. Paoli wherein we held that one tortfeasor may seek contribution from another tortfeasor when the other tortfeasor is the spouse of the injured person who has received damages from the first tortfeasor. Whether there is insurance coverage or whether the contract of insurance contains a family exclusion clause is immaterial to the disposition of this primary question. Therefore, regardless of its holding as to Farm Bureau’s liability, the trial court correctly granted Cunningham’s and GEICO’s contribution claim against Cammie Deese for ten percent of Myrtis Deese’s damages. Shor v. Paoli.

The real issue presented by this controversy is whether Farm Bureau is liable, despite a family exclusion provision in its policy, for the payment of a judgment against its insured recovered by way of contribution by a joint tortfeasor, when that judgment is based upon injury to the insured’s wife. We answer this question in the negative and continue to hold such family exclusion clauses valid, absent statutory prohibition. In Reid v. State Farm Fire and Casualty Co., we said:

It is generally accepted, in the absence of a statutory prohibition, that provisions of automobile liability insurance policies excluding from coverage members of the insured’s family or household are valid. 46 A.L.R.3d 1024. This is also the rule in Florida. Newman v. National Indemnity Company, 245 So.2d 118 (Fla.3d DCA 1971); see also Zipperer v. State Farm Mutual Automobile Ins. Co., 254 F.2d 853 (5th Cir. 1958). The reason for the exclusion is obvious: to protect the insurer from over friendly or collusive lawsuits between family members.

352 So.2d at 1173. Shor v. Paoli has neither overruled Reid nor invalidated family exclusion provisions in insurance policies where a contribution judgment is entered against a tortfeasor spouse of the injured plaintiff. Shor did not judicially create a public policy requiring financial security to ensure a joint tortfeasor’s recovery on a contribution judgment. Likewise, the Uniform Contribution Among Joint Tortfeasors Act does not purport to enlarge the coverage of insurance policies nor does it prohibit family exclusion clauses. We reject the contention that these clauses are void as against public policy. In addition to the policy reasons for such clauses stated in Reid, we also note that insurance premiums may be established in part by reference to potential exposure to liability by insurance companies and may be lower where those most likely to be passengers in the automobile are expressly excluded from coverage.

Presumably Deese was free to contract with Farm Bureau or another insurance company to either include or exclude liability coverage for his negligent acts which cause injuries to members of his family. In this case he elected not to purchase this additional coverage but rather obtained an insurance policy with a family exclusion clause. Neither he nor the Cunninghams or GEICO can now complain because his policy does not cover the contribution judgment. The fact that he contributed to his wife’s injury does not create coverage where it otherwise would be disallowed because of the exclusion clause in his insurance contract.

Accordingly, we approve that part of the district court’s decision which affirms the trial court’s contribution judgment against Cammie Deese; however, we quash that part of the decision which holds family exclusion clauses invalid as against public policy in contribution cases and which affirms the trial court’s contribution judgment against Florida Farm Bureau Insurance Company. This cause is remanded for further proceedings consistent herewith.

It is so ordered.

BOYD, OVERTON and McDONALD, JJ., concur.

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

ADKINS, Acting Chief Justice,

concur-

ring in part and dissenting in part.

I would approve the entire decision of the district court of appeal.


text:
    THE FLORIDA BAR, Complainant, v. Terrence E. ROSENBERG, Respondent.
    No. 59060.
    Supreme Court of Florida.
    Aug. 28, 1980.
    Paul A. Gross, Bar Counsel, Miami, and Anita F. Dahlquist, Asst. Staff Counsel, Tallahassee, for complainant.
    Lucian C. Proby, Jr. of Proby & Adkins, Coral Gables, for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Terrence E. Rosenberg, a member of The Florida Bar, is presently before us on complaint of The Florida Bar and Report of Referee. Pursuant to Rule 11.06(9)(b) of the Integration Rule of The Florida Bar, the referee’s report and record were duly filed with this Court. No petition for review pursuant to Rule 11.09(1), Integration Rule, has been filed.

Having considered the pleadings and evidence, the referee found as follows:

“On January 31, 1979 The Florida Bar filed a complaint in three counts, charging the respondent TERRANCE E. ROSENBERG with various violations of the Disciplinary Rules of the Code of Professional Responsibility. Counts I and II of the complaint relate to actions of the respondent while he was counsel of record for a defendant in a case then pending in the Circuit Court of the 11th Judicial Circuit of Florida, Case No. 76-39365, styled SIDNEY J. GOODMAN and MILTON FRIEDMAN, plaintiffs, vs. HORIZON MANAGEMENT CORPORATION, et al., defendants. The case was a real estate mortgage foreclosure in which the respondent represented the defendant HORIZON MANAGEMENT CORPORATION. Count I alleges that the respondent initiated four different appeals during the course of the litigation and then either voluntarily dismissed the appeal or allowed them to be dismissed on the Court’s own motion for failure of the appellant to pay the required filing fee. The ultimate allegation of Count I is that by virtue of the acts taken in connection with the various appeals, the respondent was guilty of asserting a position, conducting a defense, delaying a trial or taking other action on behalf of his client when he knew or when it was obvious that such action would serve merely to harrass or maliciously injure another, in violation of Disciplinary Rule 7-102(A)(l) of the Code of Professional Responsibility. Count II alleges that the respondent appeared as the deponent for the defendant HORIZON MANAGEMENT CORPORATION at a deposition while continuing to represent the defendant HORIZON MANAGEMENT CORPORATION as its attorney. It is alleged that the respondent’s continued role as counsel for HORIZON MANAGEMENT CORPORATION after he learned or it became obvious that he ought to be called as a witness on behalf of his client in the ease was in violation of Disciplinary Rule 5-102(A) of the Code of Professional Responsibility. The matters alleged in Count III of the complaint arise out of the respondent’s actions while he was counsel of record for the plaintiff in the Circuit Court of the 11th Judicial Circuit of Florida, Case No. 78-536, styled TIP-PY, INC., v. JACK DURANT et al. In that instance it is alleged that the respondent, after having received a Notice of Appearance from opposing counsel in the case, filed various pleadings, including a Motion for Default and two motions for Final Judgment which had either no certificate of service on opposing counsel or contained certificates of service but which were never mailed or otherwise delivered to opposing counsel. By reason of his acts, the respondent is charged with conduct which adversely reflects on his fitness to practice law in violation of Disciplinary Rule 1-102(A)(6) of the Code of Professional Responsibility and of failing to comply with known local customs of courtesy or practice without giving opposing counsel timely notice of his intent not to comply and of intentionally and habitually violating established rule or procedure, all in violation of Disciplinary Rule 7-106(C)(5) and (7) of the Code of Professional Responsibility.
Prior to final hearing in the case the respondent had admitted all of the material factual allegations of all three counts of the complaint. The only allegations of the complaint which were denied were those which actually charged specific violations of disciplinary rules. In addition to the admissions in the file the referee considered the transcripts of two hearings previously held concerning the matters alleged in the complaint before Grievance Committee “E” of the 11th Judicial Circuit held on October 26, 1978, wherein testimony of the complaining witnesses and of the respondent was taken.
The cause came on for final hearing before the Referee on November 7, 1979. The respondent attended by his counsel was present at the hearing. The Referee took the testimony of Norman Silver, Esq., complaining witness with regard to the allegations of Count III. In addition, various notices of appeal and pleadings in both cases were marked and admitted into evidence.
Based on the respondent’s admissions, the testimony of the complaining witnesses and the respondent, and the exhibits marked into evidence at the hearing, the Referee finds that the substantive facts which underlie this complaint are stated accurately and truly in the complaint and are incorporated herein verbatim as the Referee’s Findings of Fact for purposes of this report. Specifically, the Referee finds the facts as stated in paragraphs 1 through 23 of Count I, 25 through 30 of Count II, and 32 through 42 of Count III are true.

The referee recommends that respondent be found guilty of violation of Disciplinary Rules 7-102(A)(l) and 7-106(C)(7) of the Code of Professional Responsibility and recommends that respondent receive a public reprimand.

Having carefully reviewed the record, we approve the findings and recommendations of the referee.

Accordingly, respondent, Terrence E. Rosenberg, is hereby publicly reprimanded, and the publication of this order and judgment shall constitute a public reprimand.

Execution is hereby directed to issue against respondent for costs in the amount of $483.50.

It is so ordered.

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


author: ALDERMAN, Justice.

text:
    STATE BOARD OF MEDICAL EXAMINERS OF FLORIDA, Appellant, v. Robert J. ROGERS, M.D., Appellee.
    No. 56096.
    Supreme Court of Florida.
    Sept. 4, 1980.
    Michael I. Schwartz, Tallahassee, for appellant.
    Andrew A. Graham of Reinman, Harrell, Silberhorn, Moule & Boyde, Melbourne, for appellee.
   ALDERMAN, Justice.

This cause is before us on direct appeal to review the decision of the District Court of Appeal, First District, in Rogers v. State Board of Medical Examiners of Florida, 371 So.2d 1037 (Fla. 1st DCA 1979), which construed a provision of the Florida Constitution. Although we find it unnecessary to the disposition of this cause to reach the constitutional construction given article I, section 2, Florida Constitution, by the district court, we affirm the result of the district court’s decision because, under the particular facts of this case, it appears that the action of the Board of Medical Examiners restraining Dr. Rogers from further utilization of chelation treatment was an arbitrary and unreasonable exercise of the state’s police power.

Dr. Rogers, a practicing physician in Bre-vard County, was ordered by the Brevard County Medical Association to discontinue the use of chelation therapy in the treatment of arteriosclerosis. As a result of his refusal to discontinue its use, Dr. Rogers was expelled from the association. Subsequently, pursuant to section 458.1201(l)(p), Florida Statutes (1975), the Florida State Board of Medical Examiners filed an administrative complaint charging Dr. Rogers with unprofessional conduct as defined by section 458.1201(l)(m), Florida Statutes (1975).

The hearing officer, whose findings and conclusions were adopted by the Board, concluded that chelation therapy can best be classified as investigational, that it more likely can be classified as quackery, and that its use outside a controlled environment such as a research institute fails to conform to acceptable and prevailing medical practice. Although not finding that chelation therapy is in any manner harmful to the patient or that Dr. Rogers misled his patients into believing that this methodology of treatment was a cure for arteriosclerosis, the hearing officer determined that Dr. Rogers failed to demonstrate that che-lation therapy results in any patient benefit in terms of organic process and recommended that Dr. Rogers be reprimanded, be ordered to cease and desist from employing this treatment, and be placed on probation for one year during which time he should demonstrate the type of exemplary conduct required of a duly licensed physician.

Quashing the Board’s order, the district court determined that neither the Board nor the Brevard County Medical Association had made any finding that chelation therapy is in any respect harmful or hazardous to the patient, that Dr. Rogers allowed his patients to make their own choice as to whether to begin this treatment after full disclosure that this methodology has not been proven effective, that chelation therapy is widely used as a treatment for arteriosclerosis by a definite minority of the medical profession, that Dr. Rogers never claimed it was a cure, and that there was no allegation or proof of fraud, misrepresentation, coercion, or overreaching. The district court acknowledged the state’s authority to regulate the medical profession but held that the Board’s action was not reasonably related to the public’s health and welfare. It concluded that the Board, on the record presented for review, could not prohibit Dr. Rogers from administering chelation therapy-

Entrusted with the enforcement of appropriate standards for the practice of medicine, the Board, in restricting Dr. Rogers’ professional activities, was acting under the state’s police power and pursuant to sections 458.1201(l)(m) and 458.1201(l)(p). Although the state has the power to regulate the practice of medicine for the benefit of the public health and welfare, this power is not unrestricted. The regulations imposed must be reasonably related to the public health and welfare and must not amount to an arbitrary or unreasonable interference with the right to practice one’s profession which is a valuable property right protected by the due process clause. Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Dent v. West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623 (1889).

Under the particular facts of this case, we conclude that the Board’s action unreasonably interferes with Dr. Rogers’ right to practice medicine by curtailing the exercise of his professional judgment to administer chelation therapy. The record before us fails to evidence harmfulness as a reasonable basis for the Board’s action in restricting use of this treatment. Cf. Golden v. McCarty, 337 So.2d 388 (Fla.1976). Furthermore, the evidence demonstrates that no fraud or deception was exercised by • Dr. Rogers upon his patients who were fully informed of the nature of the procedure and the possibility of no improvement. Sanctions were imposed against Dr. Rogers because he utilized a modality not accepted by the Board as having been proven effective, not because the Board found that the treatment was harmful or that Dr. Rogers had defrauded his patients into believing that chelation treatment was a cure for their conditions. The Board’s findings do not support a conclusion of quackery, and the state-imposed limitation on the administration of chelation treatment has not been shown by the evidence to have a reasonable relationship to the protection of the health and welfare of the public.

Accordingly, based upon the record in this case, we hold that the Board’s action is an unreasonable exercise of the police power, and we affirm the result of the decision of the district court quashing the order of the Board.

It is so ordered.

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

      . Article I, section 2, Florida Constitution, provides:
      All natural persons . . . have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness ....

      .The district court in its decision here under review explained in detail the nature of chelation therapy:
      The record reveals that chelation therapy consists of a series of intravenous injections of a chelating drug, usually disodium ethy-lenediamine tetraacetic acid (hereafter diso-dium EDTA, Na2 EDTA, or EDTA). Each injection takes approximately three to four hours to administer, and a normal course of treatment usually involves twenty such injections. The treatments are specifically intended to treat arteriosclerosis (hardening of the arteries), therosclerosis (deposits on the inner lining of the arteries), and other generalized circulatory deficiencies caused by excess calcium in the circulatory vessels. The common chelating agent, Na2 EDTA, was originally discovered by I. G. Farben in the 1930’s and is widely used as a food preservative. EDTA intravenous treatment is often recommended for lead poisoning and other diseases requiring removal of heavy metals from the body. Chelation treatments were widely used during World War II in treating sailors who had contracted poisoning from leaded paint. Since World War II more than 1500 scientific articles and studies have been published concerning practically every application of the chelating process in the body. Many of those articles are contained in the record.
      The precise chemical reaction whereby metals, or calcium, are removed from the body through chelation is not yet completely known nor understood. However, through the years, many doctors have observed that after EDTA infusion, the urine calcium level rises and remains at relatively high levels for some months after administration of the treatments. The theory, now generally agreed upon by chelation proponents, is that the chelating salt binds with ionic calcium in the blood, causing a temporary calcium deficiency in the blood. This is rapidly replaced by calcium in precipitate form ionizing in the bloodstream. This calcium, known as metastatic calcium, comes from the walls of the blood vessels and from calcium precipitate in every cell. Many experts believe that the metastatic calcium sludge in each cell causes the cells gradually to disfunction. This phenomenon, coupled with the better known effects of calcium deposits on the interior walls of the blood vessels, results in a gradual decline in blood flow and cell function. Thus, if the pernicious calcium buildup can be prevented or reversed, cells and vessels can continue to function well into old age, reducing the inevitable effects of hardening of the arteries and other vascular occlusive diseases.
      The record is replete with claimed instances of dramatic restoration of blood flow to the extremities resulting in arrest of gangrene, restored sensation, increased temperature and return of normal color to toes, fingers, hands and feet after chelation treatment. In one exceptionally dramatic case history, Reynolds Hall, a patient of petitioner, allegedly regained his sight during his seventh chelation treatment.
      Chelation therapy is, then, infusion of a chelating agent (generally Na2 EDTA) into the bloodstream over several hours, a treatment which is repeated about 20 times, generally over a period of a month or more.
      371 So.2d at 1038-39.

      . Section 458.1201(l)(p), Florida Statutes (1975), provides:
      (1) The board shall have authority to deny an application for a license or to discipline a physician licensed under this chapter or any antecedent law who, after hearing, has been adjudged unqualified or guilty of any of the following:

      (p) Being removed or suspended, or having disciplinary action taken, by his peers within any professional medical association, society, professional standards review organization established pursuant to s. 249F of Public Law 92-603, or similarly constituted professional body, whether or not such association, society, organization, or body is local, regional, state, national, or international in scope, or by being disciplined by a licensed hospital or medical staff of said hospital for immoral or unprofessional conduct or willful misconduct or negligence by the person in his capacity as a physician licensed pursuant to this chapter. Anybody taking action as set forth in this paragraph shall report such action to the board within 30 days of its occurrence or be subject to a fine assessed by the board in an amount not exceeding $500.

      . Section 458.1201(l)(m), Florida Statutes (1975), provides:
      (1) The board shall have authority to deny an application for a license or to discipline a physician licensed under this chapter or any antecedent law who, after hearing, has been adjudged unqualified or guilty of any of the following:

      (m) Being guilty of immoral or unprofessional conduct, incompetence, negligence, or willful misconduct. Unprofessional conduct shall include any departure from, or the failure to conform to, the standards of acceptable and prevailing medical practice in his area of expertise as determined by the board, in which proceeding actual injury to a patient need not be established when the same is committed in the course of his practice, whether .committed within or without this state.


author: ADKINS, Justice.

text:
    FLORIDA PUBLIC SERVICE COMMISSION, Robert Shevin, Attorney General, Petitioners, v. TRIPLE “A” ENTERPRISES, INC., Frank Lachacz, Robert Barrett and Richard Trankley, Respondents.
    No. 56338.
    Supreme Court of Florida.
    Sept. 4, 1980.

      Prentice P. Pruitt, Legal Director, and Paul Sexton and William E. Sundstrom, Staff Counsels, Tallahassee, for Florida Public Service Commission; and Martin S. Friedman, Asst. Atty. Gen., Tallahassee, for Attorney General, petitioners.
    Law Offices of Cone, Owen, Wagner, Nu-gent, Johnson, Hazouri & Roth and Larry Klein, West Palm Beach, Florida, for respondents.
    James G. Mahorner, Asst. Gen. Counsel, Tallahassee, for Department of Health and Rehabilitatives Services, amicus curiae.
   ADKINS, Justice.

This cause is before us by petition for writ of certiorari to review an interlocutory order of the Circuit Court of the 19th Judicial Circuit in and for Martin County holding that section 47.011, Florida Statutes (1977), is unconstitutional. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

The statute reads as follows: “Where actions may be begun. — Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. This section shall not apply to actions against nonresidents.”

The court denied the petitioner’s (defendant in trial court) motion for change of venue to Leon County and held that:

A. Florida Statute 47.011 as interpreted to give the State of Florida the privilege of having cases filed against it litigated and heard in Leon County is unconstitutional as a denial of the due process clause of the Fourteenth Amendment to the United States Constitution and § 21 of the Declaration of Rights to the Florida Constitution.
B. That body of law which has evolved in the State Courts of Florida granting the privilege and/or right to the State of Florida to have suits brought against the State of Florida litigated and heard in Leon County is unconstitutional as a violation of the due process clause of the Fourteenth amendment to the United States Constitution and as a violation of Article I, § 21 of the Florida Constitution.

Respondents (plaintiffs in trial court) were engaged in providing various services to the public including moving personal property or “household goods,” operating under the name of Triple A Delivery Service. Defendant, Public Service Commission, wrote to the plaintiffs on July 21, 1978, advising them that their delivery service was operating without authorization from the commission, as required by chapter 323, Florida Statutes, and that if operations did not cease within five days, the commission would seek in the Circuit Court for Martin County a permanent injunction prohibiting further unauthorized operation. The defendant never sought the threatened injunction.

On August 16, 1978, the plaintiffs filed a complaint against the commission in the Circuit Court for Martin County, seeking declaratory and injunctive relief against the commission, questioning the applicability of chapter 323, Florida Statutes, to their operation, and attacking the constitutionality of portions of chapter 323, Florida Statutes, as applied to their operation.

The commission filed a motion for change of venue to Leon County, citing its common law privilege to seek venue in the county of its headquarters. The court permitted the attorney general to intervene as a party defendant, and it joined in the commission’s motion for a change of venue. The court denied the motion and declared section 47.-011 and the body of law establishing the venue privilege to be unconstitutional.

Defendants challenge the denial of their motion for a change of venue to Leon County, and the finding that section 47.011 and the state’s common law venue privilege are unconstitutional.

Absent waiver or exception in civil actions brought against the state, its agencies or subdivisions, venue properly lies in the county of its principal headquarters. Carlile v. Game and Fresh Water Fish Commission, 354 So.2d 362 (Fla.1977); Smith v. Williams, 160 Fla. 580, 35 So.2d 844 (1948). The commission has not waived its common law venue privilege, however, the trial court held and the plaintiffs contend that the “sword-wielder” doctrine, an exception to the state’s common law venue privilege, applies to the instant case.

In Department of Revenue v. First Federal Savings and Loan Association of Fort Myers, 256 So.2d 524, 526 (Fla. 2d DCA 1971), the court stated:

The question to be answered in these cases may be said to be whether the state is the initial sword-wielder in the matter and whether the plaintiff’s action is in the nature of a shield against the state’s thrust. If so, then the suit may be maintained in the county wherein the blow has been or is imminently about to be laid on.

The “sword-wielder” doctrine is an exception to the common law venue privilege and applies only where direct judicial protection is sought from an unlawful invasion of a constitutional right of the plaintiff, directly threatened in the county where the suit is instituted. See Carlile; Smith v. Williams.

This Court held in Smith v. Williams, that a state agency has absolute authority to control venue in an action brought primarily for the purpose of seeking judicial interpretation or a declaration of rights and duties under rules and regulations promulgated by state agencies.

In Carlile, this Court stated:

The so called “sword-wielder” doctrine applies only in those cases where the official action complained of has in fact been or is being performed in the county where the suit is filed, or when the threat of such action in said county is both real and imminent.

354 So.2d at 365.

The commission’s actions do not constitute an unlawful invasion of the plaintiffs’ constitutionally-protected rights. The only threat by the commission was its letter of July 21, 1978, to the plaintiffs advising them that if their unauthorized operations did not cease within five days, a permanent injunction would be sought. The record shows that no further action was taken by the commission; rather, the plaintiffs filed this action twenty-six days after the “threatening” letter was written.

In Dowdy v. Lawton 72 So.2d 50 (Fla.1954), the Board of Dispensing Opticians wrote a letter on October 16, 1953, to a licensed dispensing optician in Pinellas County advising him that his actions had violated the Opticians Law and that the Board had no alternative but to take whatever action was necessary to carry out the law. A suit was filed twenty-eight days later on November 13, 1953, in Pinellas Circuit Court asking the court to construe the rules, declaring whether they were lawful, and whether they were constitutional. The Board moved to dismiss for improper venue which was denied. This Court quashed the order denying the motion to dismiss, and stated “at most the threat was that in due course the petitioners would take some kind of unspecified action at some time in the future.” 72 So.2d at 51.

In the instant case the commission’s threat was neither real nor imminent. See Department of Revenue, 256 So.2d at 526. As such, we find that the “sword-wielder” doctrine does not apply, and that the trial court erred in denying the defendants’ motion for change of venue.

In denying the motion for change of venue, the court held section 47.011 and the common law venue privilege to be unconstitutional as a denial of due process under the Fourteenth Amendment to the United States Constitution and article I, section 21 of the Florida Constitution.

The Fourteenth Amendment prohibits a state from depriving any person of life, liberty, or property, without due process of law.

The fundamental requirements of due process are satisfied by reasonable notice and a reasonable opportunity to be heard. Ryan v. Ryan, 277 So.2d 266 (Fla.1973); Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Dohany v. Rogers, 281 U.S. 362, 50 S.Ct. 299, 74 L.Ed. 904 (1930).

The common law venue privilege allows for uniform interpretation by one court, thus promoting efficient and uniform rulings, and minimizing expenditure of effort and public funds. “If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied.” Nebbia v. New York, 291 U.S. 502, 537, 54 S.Ct. 505, 516, 78 L.Ed. 940 (1934).

It is generally conceded that a classification having some reasonable basis does not offend against the Constitutional provisions supra merely because it is not made with mathematical nicety or because in practice it may result in some inequality, and also that one who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis but is essentially arbitrary. Lindsley v. Natural Carbonic Gas Co., 220 U.S 61, 31 S.Ct. 337, 55 L.Ed. 369, Ann.Cas. 1912C, 160.

McMillan v. Nelson, 149 Fla. 334, 340, 5 So.2d 867, 870 (1942).

In its original order denying defendants’ motion for change of venue, the trial court stated that requiring the plaintiffs to pursue their action in Leon County would be unduly burdensome as to time and cost. The objectives of promoting efficient and uniform rulings, and minimizing expenditures, although they may in practice be burdensome, are nonetheless valid objectives.

Article I, section 21, Florida Constitution, provides, “Access to courts.—The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.”

The trial court held that the venue privilege permitting the defendants to be sued in the county of their residence was unconstitutional as a change of venue would have caused a “delay” in the administration of justice. Had the plaintiffs filed suit in Leon County, the venue statute would have caused no delay. To the contrary, the case would have proceeded more rapidly as the Leon County sheriff could have served process on the defendants without delay.

We conclude that the venue statute and the common law venue privilege are not unconstitutional as the statute is neither unreasonable nor arbitrary. This case is remanded to the circuit court for further proceedings not inconsistent with the opinion. It is so ordered.

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