author: HAWKINS, Justice, for the Court:

text:
    The MISSISSIPPI BANK v. NICKLES & WELLS CONSTRUCTION COMPANY, and The Western Casualty & Surety Company.
    No. 53409.
    Supreme Court of Mississippi.
    Nov. 10, 1982.
    Heidelberg, Woodliff & Franks, Sam E. Scott, George F. Woodliff, III, Jackson, for appellant.
    Ott & Purdy, William R. Purdy, Jackson, for appellees.
   HAWKINS, Justice, for the Court:

This is an appeal by The Mississippi Bank from a decree of the Chancery Court of the First Judicial District of Hinds County dismissing its bill of complaint against Nickles & Wells Construction Company, Inc., and The Western Casualty & Surety Company.

The sole appellate question: Are prohibitions against assignments in construction contracts effective to prevent an assignment for the purpose of creating a security interest for a debt? The chancellor answered this question “yes,” and since we are persuaded otherwise, we reverse.

On December 15, 1978, Hinds Junior College and Nickles & Wells Construction Company, Inc., executed a construction contract for an addition to the college library. This contract between the owner and contractor was on the standard form agreement of the American Institute of Architects, form A101-1977. Attached as a part of this contract was a pamphlet entitled “General Conditions of the Contract for Construction,” on form A201-1976 of the institute. Article 7, Miscellaneous Provisions, Section 7.2.1 contains the following prohibition:

... Neither party to the Contract shall assign the Contract or sublet it as a whole without the written consent of the other, nor shall the Contractor assign any monies due or to become due to him hereunder, without the previous written consent of the Owner.

On January 25,1979, Nickles & Wells and Gallagher Mechanical, Inc., executed a subcontract (presumably with the consent of the owner since this question was never raised) to perform some of the work under the original contract. The subcontract has the following provision:

7. This contract shall not be assigned by the Subcontractor without prior written approval from the Contractor.

On February 8, 1980, Gallagher Mechanical executed an assignment to The Mississippi Bank. This document is headed “Assignment.” The pertinent provisions of the body of the document are as follows:

For the purpose of securing the sum of Twelve Thousand Five Hundred Eighty-Nine & 20/100 Dollars due by the undersigned to The Mississippi Bank, Jackson, Mississippi, evidenced by note of even date herewith, said note maturing April 21, 1980, after date, and for the purpose of securing renewals of said note, in whole or in part, and for the purpose of securing all other amounts that may be due and owing by the Undersigned to said Bank within one year from this date, whether said amounts are represented by overdrafts, open accounts or otherwise, the Undersigned does hereby assign, convey, transfer and pledge to said Bank
Assignment of Contract between Nickles and Wells Construction Company and Gallagher Mechanical, Inc., in the amount of $12,589.20, Check to be made payable to the Mississippi Bank.
Said Bank, or legal holder of said notes, is hereby fully authorized to collect, receive and receipt for the amounts above described as and when the same become due and payable and to properly endorse in the name of the Undersigned all warrants and checks given toward the payment of said amounts.
We hereby authorize the issuance of warrants and checks in payment of said amounts to and in the name of said Bank and such checks and warrants shall be delivered to said Bank, and all amounts paid to said Bank under this assignment shall be considered as payments directly to the Undersigned.

Notice of the assignment was given to Nickles & Wells, which noted thereon “Received but not accepted.”

The bank made demand upon Nickles & Wells and its surety Western Casualty for a progress payment in the amount of the assignment, which they refused to pay. Gallagher Mechanical defaulted on the subcontract and on its note to the bank. The bank filed suit in chancery court April 21, 1980, and both defendants answered raising numerous defenses.

The first defense raised by Nickles & Wells asserted the contractual prohibitions against an assignment. The chancellor conducted a preliminary hearing on the first defense that Gallagher by contract was prohibited from making any assignment without the written consent of Nickles & Wells, and having no such consent — it in fact being specifically rejected — the bank was barred from recovery.

The bank either had actual notice or was charged with notice of these contractual provisions prohibiting assignments either of the contract or monies due or to become due thereunder.

The sole question we address on this appeal is whether or not the Uniform Commercial Code as adopted in this state makes this contractual provision ineffective, insofar as it pertains to creating a security interest for the debt Gallagher owed the bank. The chancellor dismissed the bill on this first defense of Nickles & Wells, and we go no further. We do not address any of the remaining defenses, or even the validity or effect of this assignment, except on this one defense raised by Nickles & Wells.

LAW

What is a security interest?

This definition is given in the first chapter of the Mississippi Uniform Commercial Code, Mississippi Code Annotated section 75-1-201(37) (1972), from which we quote the pertinent portions:

(37) “Security interest” means an interest in personal property ... which secures payment or performance of an obligation. ... The term also includes any interest of a buyer of accounts or chattel paper which is subject to Chapter 9....

Chapter 9, covering secured transactions, is the article with which we deal in this decision.

The pertinent portions of Mississippi’s chapter 9 of the Uniform Commercial Code dealing with secured transactions are as follows:

§ 75-9-102. Policy and scope of chapter.
* * * * * *
(2) This chapter applies to security interests created by contract including pledge, assignment.... This chapter does not apply to statutory liens except as provided in section 75-9-310.
§ 75-9-105. Definitions and index of definitions.
(1) In this chapter unless the context otherwise requires:
(a) “Account debtor” means the person who is obligated on an account, chattel paper or general intangible;
******
(i) “Instrument” means a negotiable instrument (defined in section 75-3-104), or a security (defined in section 75-8-102) or any other writing which evidences a right to the payment of money and is not itself a security agreement or lease and is of a type which is in ordinary course of business transferred by delivery with any necessary indorsement or assignment;
***** 4:
(l) “Security agreement” means an agreement which creates or provides for a security interest;
(m) “Secured party” means a lender,
§ 75-9-106. Definitions: “account”; “general intangibles”.
“Account” means anv right to payment for goods sold or leased or for services rendered which is not evidenced bv an instrument or chattel paper, whether or not it has been earned bv performance. “General intangibles” means any personal property (including things in action) other than goods, accounts, chattel paper, documents, and instruments and money. All rights to payment earned or unearned under a charter or other contract involving the use or hire of a vessel and all rights incident to the charter or contract are accounts.

In the above section we underscore the applicable portion to this case.

§ 75-9-318. Defenses against assign-ee; modification of contract after notification of assignment; term prohibiting assignment or creation of security interest in general intangible for money due ineffective; identification and proof of assignment.
******
(4) A term in anv contract between the account debtor and an assignor is ineffective if it prohibits assignment of an account or prohibits creation of a security interest in a general intangible for money due or to become due or requires the account debtor’s consent to such assignment or security interest.

Again, the applicable portion of this section is underlined.

Chapter 9 contains one section on exclusions. One subparagraph of this section is as follows:

§ 75-9-104. Transactions excluded from chapter.
This chapter does not apply ******
(f) to a sale of accounts or chattel paper as part of a sale of the business out of which they arose, or an assignment of accounts or chattel paper which is for the purpose of collection only, or a transfer of a right to payment under a contract to an assignee who is also to do the performance under the contract or a transfer of a single account to an assignee in whole or partial satisfaction of a pre-existing indebtedness; ...

We are compelled to hold, under the above-quoted provisions from the Mississippi Uniform Commercial Code, that any contract which prohibits the assignment of money due or to become due thereunder is ineffective to prevent the creation of a security interest for the purpose of extension of credit under chapter 9. Whatever right Gallagher Mechanical had to payment under its contract with Nickles & Wells was an “account,” and this was true whether or not it had been earned by performance. Miss.Code Ann. § 75-9-106, supra. Nickles & Wells was an “account debtor.” Miss. Code Ann. § 75-9-105(l)(a), supra.

Therefore, if Gallagher Mechanical made an assignment to the bank of its right to payment for services rendered under its contract with Nickles & Wells for the purpose of creating a security interest under chapter 9 of the Mississippi Uniform Commercial Code, then any contractual prohibition against such assignment was ineffective.

The circumstances of the bank’s dealings with Gallagher Mechanical were never developed. The bank is entitled to prove to the trial judge whether or not the assignment from Gallagher Mechanical is entitled to the protection of Mississippi Code Annotated section 75-9-318(4), supra. Also left for the trial court upon hearing is whether the agreement between the bank and Gallagher Mechanical came under any exclusion of Mississippi Code Annotated section 75-9-104(f), supra.

In so holding, we overrule Frazier v. National Electric Supply Company, Inc., 362 So.2d 609 (Miss.1978), insofar as it held that section 75-9-104(f) excluded construction contracts from chapter 9 of the code, and for this reason that a construction contract could effectively prohibit an assignment of money due thereunder without the written consent of the obligor. We leave intact our law on assignments absent statutory restrictions imposed by the code.

The purpose of the Uniform Commercial Code is to broaden the subjects of security interests and promote commerce and lending. Virtually any right to property or services is subject to creating a security interest to induce an extension of credit.

The official comment to section 9-318(4) of the code is instructive. We quote only the first paragraph:

* * * * * sk
4. Subsection (4) breaks sharply with the older contract doctrines by denying effectiveness to contractual terms prohibiting assignment of accounts and contract rights — that is, sums due and to become due under contracts of sale, construction contracts and the like. Under the rule as stated an assignment would be effective even if made to an assignee who took with full knowledge that the account debtor had sought to prohibit or restrict assignment of the account or of the money to be earned under the contract, (emphasis added).

The remainder of the comment on subsection (4) gives some history of the law pertaining to assignments of sums due under contracts, and the reason for the approach taken in the code. Thus, the official comment makes emphatically clear the intent of the drafters of the code to make any prohibition in a construction contract of an assignment of payment due thereunder ineffective.

The official comment to section 9-104(f) is also instructive as to the exclusions intended under this subsection:

******
6. ... Paragraph (f) excludes from the Article certain transfers of such intangibles which, by their nature, have nothing to do with commercial financing transactions.

These official comments to the code were not addressed in Frazier v. National Electric Supply Company, Inc., supra, and an overly broad interpretation was given to the exclusion under subsection (f).

Several jurisdictions have considered the validity of a contractual prohibition against an assignment of payments due under a construction contract for the purpose of creating a security interest under chapter 9. All have held such prohibitions ineffective. See General Electric Supply Co. v. Epco Constructors, Inc., 332 F.Supp. 112 (S.D. Tex.1971); Florida First National Bank at Key West v. Fryd Construction Corp., 245 So.2d 883 (Fla.1970); American Bank of Commerce v. City of McAlester, 555 P.2d 581 (Okl.1976); Prime Construction Co., Inc. v. Seattle-First National Bank, 16 Wash. App. 674, 558 P.2d 274 (1977).

We therefore reverse and remand to afford the bank an opportunity to demonstrate whether or not a security interest was created, under chapter 9 of the Mississippi Uniform Commercial Code, in its dealing with Gallagher Mechanical and whether it is entitled to the protection of Mississippi Code Annotated section 75-9-318(4), supra. We reiterate that we go no further in this opinion.

REVERSED AND REMANDED.

PATTERSON, C.J., SUGG and WALKER, P.JJ., and BROOM, ROY NOBLE LEE, BOWLING, DAN M. LEE and PRATHER, JJ., concur.

      . The bank argues on appeal that the prohibition against assignment, including that of monies due, contained in the original contract between the owner and Nickles & Wells was not presented to the chancellor in support of its first defense, but we address the entire prohibitions contained in both contracts. The subcontract embraced all provisions of the original contract.

      . When first enacted, the last sentence quoted from subparagraph (37) included the term “contract rights,” and read as follows: “The term also includes any interest of a buyer of accounts, chattel paper, or contract rights which is subject to Article 9.” Miss.Code Ann. § 41A: 1-201 (Special Supp. to Miss.Code Ann. (1942)).
      1977 Miss.Laws ch. 452 deleted the term “contract rights” and “contract right” from the above definition and chapter 9 of the Mississippi Uniform Commercial Code, following recommendations made in the Final Report of the Review Committee for Article 9 of the Uniform Commercial Code, dated April 25, 1971. The review committee explained its reason for the deletion of the term “contract right” as follows:
      “The term ‘contract right’ has been eliminated as unnecessary. As indicated by a sentence now being eliminated from Section 9-306(1), ‘contract right’ was thought of as an ‘account’ before the right to payment became unconditional by performance by the creditor. But the distinction between ‘account’ and ‘contract right’ was not used in the Article except in subsection (2) to Section 9-318 on the right of original parties to modify an assigned contract, and that subsection has been redrafted to preserve the distinction without needing the term ‘contract right’. The term has been troublesome in creating a ‘proceeds’ problem where a contract right becomes an ‘account’ by performance; in the Code’s former denial that there could be any right in an account until it came into existence (former Section 9-204 (2)(d)), notwithstanding a security interest in the pre-existing contract right; and in the danger of inadequate description in financing statements by claiming ‘accounts’ or ‘general intangibles’ when before performance they should have been described as ‘contract rights’; and in other respects.... ”
      The term “contract right,” prior to the 1977 amendment, was defined in Miss.Code Ann. § 41A: 9-106 (Special Supp. to Miss.Code Ann. (1942)): “ ‘Contract right’ means any right to payment under a contract not yet earned by performance and not evidenced by an instrument or chattel paper.” The term “contract right” is now embraced under the definition of “account,” which was also broadened by amendment in the 1977 act to include the former definition of “contract right.” See Pine Builders, Inc. v. United States, 413 F.Supp. 77 (E.D.Va.1976); Dynair Electronics, Inc. v. Video Cable, Inc., 55 Cal.App.3d 11, 127 Cal. Rptr. 268 (1976).
      Therefore, in reviewing any court decision involving the term “contract right,” the meaning given should be ascertained by reference to the UCC provision in effect at the time of the decision. In addition, anyone involved in a transaction which may be covered under the UCC should be acutely aware that words defined by the code may not come within a general definition of the word.

      . It would appear that the only possible exclusion under § 75-9-104(f) would be if the assignment was in whole or partial satisfaction of a pre-existing indebtedness.

      . Note the use of the term “contract rights” which was in the code and code comments prior to deletion of the term, and thereafter subsumed under “account.” See supra note 2.

      . We again caution in review of these decisions that their use of the term “contract right” would now be included under the definition of “account.” See supra note 2.


source: Caselaw Access Project

author: DAN M. LEE, Justice, for the Court:

license: Public Domain

text:
    Ruby Edwards BROWN v. Bettie McAFEE, Administratrix, Estate of Minnie Daniels Lee, Deceased.
    Nos. 53488, 53489.
    Supreme Court of Mississippi.
    Nov. 10, 1982.
    R. Jess Brown, Jackson, for appellant.
    Johnston, Adams & Younger, Michael P. Younger, Brandon, for appellee.
    Before SUGG, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.
   DAN M. LEE, Justice, for the Court:

This is an appeal from the Chancery Court of Rankin County wherein Ruby Edwards Brown, appellant, filed an objection to a petition for authority to sell real estate, to pay debts and expenses, distribute remaining proceeds and for a final discharge of administratrix in the estate of Minnie Daniels Lee, deceased. Brown was the only heir to contest the sale of approximately 175 acres of land located in Rankin County, Mississippi. At the conclusion of the hearing, the chancellor ordered the 175 acres sold to pay court costs, probated claims, ad valorem taxes, attorneys’ fees, and the ad-ministratrix’s fee. From this decree Brown appeals. We reverse.

The estate of Minnie Daniels Lee, deceased, was opened in 1973. On November 6, 1980, Bettie McAfee, as administratrix with will annexed of Minnie Daniels Lee, and individually, petitioned the Chancery Court of Rankin County for authority to sell real estate to pay debts, fees and expenses, distribute remaining proceeds and for final discharge of administratrix. The property sought to be sold consisted of a 15-acre tract of land and a 160-acre tract of land, both of which were located in Rankin County, Mississippi. The personal property of decedent was specifically bequeathed to Alice Williams, who also prevailed in another lawsuit which entitled her to 120 acres of land owned by the decedent. Decedent also apparently owned some real property in Chicago.

A decree pro confesso to the petition was entered against thirty-seven heirs at law of decedent. Appellant was the only heir at law to file an answer to the petition of the administratrix objecting to the sale of the real property.

After hearing legal arguments advanced by the attorneys, the chancellor found a valid contract existed between Martin and Martin, attorneys at law, and the heirs of decedent who executed these contracts. The chancellor further approved the payment of all claims filed and ordered that all fees, costs and expenses be deducted from the interests of all heirs or devisees proportionate to their respective interests except for attorneys’ fees which would only be paid from the interests of the heirs with whom the contracts were executed. The chancellor further ordered a hearing to show why a part of the realty should not be sold in order to satisfy the payment of debts, expenses and fees to be paid from the proceeds of the estate.

At the hearing to determine whether all or part of the 175 acres of realty should be sold, the only testimony came from George Dan Martin. Martin, an attorney and real estate broker, testified the 15-acre tract had a value of $800 to $1000 per acre maximum. Martin appraised the 160-acre tract at $500 per acre, evidently because of its isolation from public roads and public services. According to Martin, the expenses involved in attempting to partite the 160-acre tract with fractional interest from a .285 per cent interest to a 9 per cent interest would be totally impracticable from an economic standpoint. Martin asserted the proceeds from the sale of the 15-acre tract alone would be insufficient to satisfy the debts of the estate. Although Martin admitted it would be theoretically possible to dispose of the 160-acre tract and not the 15-acre tract to satisfy the debts of the estate, he asserted it would be totally impractical to attempt to partite 15 acres of land among 37 heirs. Martin recommended it would be less expensive on the estate and the heirs to sell all the property.

The chancellor thereafter entered a final decree ordering the property sold at a public auction and the proceeds therefrom used to pay the court costs of handling the estate, the probated claims, all past ad valo-rem taxes paid by the heirs at law, attorneys’ fees, except such a fee was not to be assessed against the interest of appellant, and the administratrix’s fee. The remaining balance was to be paid to the heirs at law in an amount equal to their percentage interests.

I. Did the chancellor err in ordering a sale of the property to satisfy the debts of the estate?

Mississippi Code Annotated section 91-7-191 (1972) provides as follows:

When an executor or administrator shall discover that the personal property will not be sufficient to pay the debts and expenses, he may file a petition in the chancery court for the sale of the land of the deceased, or so much of it as may be necessary, and exhibit to the court a true account of the personal estate and debts due from the deceased, and the expenses and a description of the land to be sold.

Section 91-7-199 (1972) deals with the hearing and decree concerning a petition to sell land upon the insufficiency of personalty. It provides:

The court, after service of summons or proof of publication, shall hear and examine the allegations and evidence in support of the petition and the objections to and evidence against it, if any. If on such hearing the court be satisfied that the personal estate is insufficient to pay the debts of the deceased and that the land ought to be sold for that purpose, it may make a decree for the sale of a part or the whole of the land; and when a part only is decreed to be sold, the decree shall specify what part. If the real estate be so situated that a part cannot be sold without manifest prejudice to the heirs or devisees, the court may decree that the whole shall be sold; and the overplus arising from such sale, after the payment of debts and expenses, shall be distributed amongst the heirs according to the law of descents, or amongst the devisees according to the will. The heir or devisee whose lands shall be sold may compel all others holding or claiming under such intestate or testator to contribute in proportion to their respective interests, so as to equalize the burden of the loss.

The petition and attached exhibits alleged there was no personal property in the estate except for a “Steck” piano, and that no receipts or disbursements had been made. The petition further averred that the only probated claims consisted of a $58.09 prescription and medical supply bill and a $1,096.12 claim for funeral expenses which the administratrix denied should be paid from the estate. The petition alleged the heirs at law had expended their own personal funds to pay the ad valorem taxes upon the real property of decedent and there were no monies for attorney’s fees or an administratrix’s fee. The petition then prayed for a sale of the real property to dispose of the debts of the estate.

The petition did not specifically allege that the personal property was insufficient to pay the debts of the estate. In McWil-liams v. Estate of Brown, 183 So.2d 820 (Miss.1966), this Court stated:

In these proceedings the court is divesting title to the lands out of the legatees or heirs and vesting same in the executor or administrator, and compliance with the statute is necessary to effect such dives-ture.
The petition is to be for the sale of the land of the deceased, “or so much of it as may be necessary”, and there shall be exhibited to the court a true account of the personal estate and the debts due and expenses, together with a “description of the land to be sold.”
The petition did not comply.
The order did not adjudicate, as provided by section 592, supra, that the personal estate was insufficient to pay the debts and that the land ought to be sold for that purpose, nor did it make a decree for the sale of a part or the whole of the land and described no land, title to which was being divested from the legatees or heirs. (183 So.2d at 822)

Had appellant interposed a demurrer to the petition, the demurrer should have been sustained. However, we need not decide whether the petition’s failure to comply with section 91-7-191 was cured by the final decree because appellee failed to meet her burden of proof on the issue of whether an order for the sale of the real property was necessary in order to discharge the debts and expenses of the estate.

Appellee, through her petition, alleged a sale of the realty was necessary in order to satisfy the debts and expenses of the estate. However, the petition only alleged the actual amount owing on two probated claims. The first claim was for a prescription and medical supply bill which totaled $58.09, while the second claim was for burial expenses in the amount of $1,096.12. The latter claim was denied owing by the ad-ministratrix. The debts and expenses that the appellee claimed consisted of attorneys’ fees, court costs, the administration of the estate, ad valorem taxes on realty and ad-ministratrix’s fee. There was absolutely no documentation or proof offered as to the amounts due or an estimation thereof. In fact, appellee contended that these amounts could not be determined until the estate is finally closed and litigation ended. Indeed, some of the alleged debts, such as attorneys’ fees for the heirs, may or may not be debts of the estate. Furthermore, it was absolutely necessary to establish the amount of the debts prior to determining what amount of realty, if any, need be sold to satisfy them.

The decree ordering the sale of real estate is clearly without legal precedent in the absence of proof of the debts against the estate so as to justify the chancellor’s divesting the title to the lands out of the legatees or heirs and vesting the same in the administratrix. It further assumes there must be a partition of the land as between the heirs, which the appellee contended could not be economically done. This contention presupposes that there must be a partition of the land, which may or may not be done in a separate action at the election of the heirs.

Although we can only speculate that court costs and attorneys’ fees would be substantial due to the length of time that had elapsed since the estate was opened in 1973 and the amount of litigation involved, the absence of an account of the debts due and expenses involved left the chancellor in the dark insofar as determining whether the realty should be sold and if so, how much. The only evidence adduced by the appellee involved the value of land sought to be sold and that it could not be economically partited. In the absence of the amount of court costs, attorneys’ fees, ad valorem taxes and fees for the administra-trix involved, it was impossible for the chancellor to make a determination that any or all of the real estate should be sold. McWilliams, supra.

The chancellor was manifestly wrong in ordering a sale of the real property in the absence of proof as to the debts due and expenses of the estate. Since this cause must be reversed, we decline to reach the remaining assignments of error.

REVERSED AND REMANDED.

PATTERSON, C.J., SUGG and WALKER; P.JJ., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and PRATHER, JJ., concur.

      . There was a total of thirty-seven heirs at law to the estate of Minnie Daniels Lee, deceased.


text:
    John Scott WOFFORD v. STATE of Mississippi.
    No. 53912.
    Supreme Court of Mississippi.
    Nov. 17, 1982.
    Mose Lee Sudduth, Jr., Columbus, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Oktibbeha County; Joe 0. Sams, Sr., Judge.

Before WALKER, P.J., and BROOM and HAWKINS, JJ.

AFFIRMED.


text:
    Clinton WEEKS v. STATE of Mississippi.
    No. 53952.
    Supreme Court of Mississippi.
    Nov. 17, 1982.
    Carver A. Randle, Indianola, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Sunflower County; B.B. Wilkes, Judge.

Before WALKER, P.J., and BROOM and HAWKINS, JJ.

AFFIRMED.

PATTERSON, C.J., SUGG, P.J., and ROY NOBLE LEE, BOWLING, DAN M. LEE and PRATHER, JJ., concur.


text:
    Mrs. Ida WEEKS v. Sandra J. HELMS, A Minor, c/o Kenneth Helms, Father, Natural Guardian & Next Friend.
    No. 53942.
    Supreme Court of Mississippi.
    Nov. 17, 1982.
    Crawley & Ford, David E. Crawley, Jr., Kosciusko, Robert & Tutor, Pontotoc, for appellant.
    Charles D. Thomas, Pontotoc, William K. Duke, Oxford, for appellee.
   Appeal from Circuit Court, Pontotoc County; Fred Wicker, Judge.

Before WALKER, P.J., and BROOM and HAWKINS, JJ.

REVERSED AND REMANDED FOR A NEW TRIAL ON THE ISSUE OF DAMAGES ONLY.

PATTERSON, C.J., SUGG, P.J., and ROY NOBLE LEE, BOWLING, DAN M. LEE and PRATHER, JJ., concur.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Roger H. HARPER, Respondent.
    No. 58011.
    Supreme Court of Florida.
    April 15, 1982.
    John F. Harkness, Jr., Executive Director, Tallahassee, and Michael D. Powell, Bar Counsel, Fort Lauderdale, of The Florida Bar, for complainant.
    John V. Russell, Fort Lauderdale, for respondent.
   PER CURIAM.

This is a proceeding instituted by the Florida Bar against Roger H. Harper, a person admitted to practice law in Florida, for violation of the Code of Professional Responsibility.

The referee, after concluding a final hearing (which had been continued twice), made a full and complete report which is summarized in his recommendation as follows:

The record discloses gross misconduct by Respondent, Roger H. Harper, in that while acting as Executor of the Estate of Adwin H. Moody being probated in Surrogate’s Court, Westchester County, New York, he, inter alia, made improper payments to himself for commissions and expenses; after being served with a citation to appear regarding the revocation of letters testamentary which had been issued to him, failed to appear on the return date; purchased two bearer municipal bonds costing approximately $40,000 with estate funds which he later sold for approximately $28,400, converting the proceeds to his own use; and upon being removed as Executor failed to comply with an order of the Surrogate’s Court surcharging him with more than $63,000 (for improper disbursements, for interest due to failure to properly invest estate funds, and for the value of the converted bonds, including interest thereon). Upon being suspended for five years from the practice of law in the State of New York for this misconduct, Respondent failed to notify the Florida Supreme Court of his suspension.
Respondent has presented no defense to the charges asserted against him in these proceedings, although local counsel filed an appearance in the case. Respondent is presently confined in prison in the State of New York as the result of conviction on a charge arising out of his conversion of the municipal bearer bonds belonging to the Estate of Adwin H. Moody.
In consideration thereof and in view of Respondent’s prior suspension for a period of six months for misconduct as an attorney in this State, I recommend that Respondent, Roger H. Harper, be disbarred, Costs, to be hereafter assessed, should be taxed against Respondent.

The report and recommendation of the referee is confirmed. Roger H. Harper is hereby disbarred from practicing law in this state. Costs in the amount of $1,143.25 are assessed against him.

It is so ordered.

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


author: ALDERMAN, Chief Justice.

text:
    ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, Greater St. Johns River Basin, and Florida Department of Revenue, Appellants/Cross-Appellees, v. DESERET RANCHES OF FLORIDA, INC., Appellee/Cross-Appellant.
    No. 61501.
    Supreme Court of Florida.
    Sept. 14, 1982.
    Rehearing Denied Dec. 7, 1982.
    Egerton K. van den Berg of van den Berg, Gay & Burke, Orlando, and Jim Smith, Atty. Gen., and Jeff Kielbasa, Asst. Atty. Gen., Tallahassee, for appellants/cross-appellees.
    Patricia C. Fawsett of Akerman, Senter-fitt & Eidson, Orlando, for appellee/cross-appellant.
   ALDERMAN, Chief Justice.

St. Johns appeals the decision of the District Court of Appeal, Fifth District, holding chapter 77-382, Laws of Florida, which created the Greater St. Johns River Basin, unconstitutional as a local law enacted without the notice required by article III, section 10, Florida Constitution. Deseret cross-appeals contending that the district court erred in holding that the District is not levying unconstitutional state ad valo-rem taxes. Deseret Ranches of Florida, Inc. v. St. Johns River Water Management District, 406 So.2d 1132 (Fla. 5th DCA 1981). We hold that chapter 77-382 is a constitutional, properly enacted general law and reverse that portion of the Fifth District’s opinion holding to the contrary. We further hold that the district court properly resolved the ad valorem tax issue.

In 1979, Deseret Ranches of Florida, a landowner in Orange, Osceola, and Brevard Counties, filed suit for declaratory relief on behalf of all persons against whom ad valo-rem taxes and permit application fees were assessed in those counties by the St. Johns River Water Management District. Deser-et contended that the Greater St. Johns River Basin, created by chapter 77-382, Laws of Florida, was unconstitutionally established, that the District is impermissibly levying state ad valorem taxes, and that the District has been improperly spending ad valorem tax revenues for its administrative and regulatory functions. Following a non-final order entered by the circuit court granting partial summary judgment in favor of the District and the Basin, Deseret petitioned the District Court of Appeal, Fifth District, for a writ of common law certiorari.

The district court granted certiorari and held that because chapter 77-382 does not operate uniformly throughout the state but rather applies only to those inhabitants and property owners in the District who are not within the Oklawaha Basin, it is a local law enacted in violation of article III, section 10, Florida Constitution, which requires that notice of intention to seek enactment of a special law be published in the manner provided by general law. The court also held that the District is not levying unconstitutional state ad valorem taxes and that the District, as a “special district” under the provisions of article VII, section 9(a), Florida Constitution, is authorized to levy ad valorem taxes for local purposes.

Upon consideration of petitions for rehearing and clarification, the Fifth District decided that its holding as to the unconstitutionality of chapter 77-382 should operate prospectively, thereby entitling the Basin to receive ad valorem taxes accruing on January 1, 1981. 406 So.2d at 1142 — 43.

We initially address the issue of whether chapter 77-382 is unconstitutional on the basis that it was enacted without the notice required by article III, section 10, which provides:

Special laws. — No special law shall be passed unless notice of intention to seek enactment thereof has been published in the manner provided by general law. Such notice shall not be necessary when the law, except the provision for referendum, is conditioned to become effective only upon approval by vote of the electors of the area affected.

In order to determine whether this notice was necessary, we must decide whether chapter 77-382 is a special law within the contemplation of article III, section 10. In view of the nature and history of this enactment, we hold that it is a general law rather than a special law. Chapter 77-382 was enacted as an amendment to chapter 373, Florida Statutes, and we must construe it in conjunction with that chapter. Recognizing that the waters in the state are among Florida’s basic resources, -the Florida Legislature, through chapter 373, “The Florida Water Resources Act,” provided a comprehensive statewide plan for the conservation, protection, management, and control of state waters. § 373.016. This statutory plan, created by general law (chapter 72-299, Laws of Florida), provides that the state be divided into five water management districts and that lands within each district be further divided into subdis-tricts or basins. §§ 373.069 and 373.0693. The present districts and basins, with the exception of the Greater St. Johns River Basin, were created pursuant to chapter 76-243, Laws of Florida, which is a general law. Although the Greater St. Johns River Basin was the only basin created in 1977, there is no reasonable basis for characterizing its enacting legislation any differently than the legislation creating the other basins. Although enacted in different years and applicable to different geographical areas of the state, both laws became integral parts of Florida’s comprehensive water management plan affecting people statewide.

Although there is no definition of general or local law in the constitution, in our early case of State ex rel. Gray v. Stoutamire, 131 Fla. 698, 179 So. 730, 733 (1938), we defined the terms “special or local laws” as used in the constitution and said that they “refer ordinarily to law relating to entities, interests, rights, and functions other than those of the State, since the organic law does not contemplate or require previous publication of notice of proposed laws for the exercise of State powers and functions though they may be more or less local or special in their operation or objects.” (Emphasis supplied.) In the present case, the statewide water management plan created and implemented by chapter 373 is primarily a state function serving the state’s interest in protecting and managing a vital natural resource. In fact, the Fifth District in the present case took notice of the interrelationships of various areas of the state and found that water management districts further the state functions of water resource conservation, control, planning, and development. 406 So.2d at 1140.

We have repeatedly held that a law does not have to be universal in application to be a general law if it materially affects the people of the state. Cantwell v. St. Petersburg Port Authority, 155 Fla. 651, 21 So.2d 139, 140 (1945). See also Cesary v. Second National Bank of North Miami, 369 So.2d 917 (Fla.1979). For example, in State v. Florida State Turnpike Authority, 80 So.2d 337 (Fla.1955), the State, in contesting a bond validation, contended that the law authorizing the turnpike and establishing the Authority was a local or special law because the legislature directed that the “partpike” be presently built through only a small part of the state and the improvements would affect only the counties located between Broward and St. Lucie. In rejecting this contention, we stated:

The Turnpike Authority is a State agency charged with creating a highway that is bound, it seems to us, to affect traffic statewide. As a main artery to facilitate the flow of travel northward and southward not only by residents but by those who make up one of the principal industries of the State, the tourist industry, not to mention the many businesses incident to the use of the motor vehicle, whether by resident or visitor, the entire State, will be affected. It is our opinion that such a turnpike may no more logically be said to be local than the aorta may be said to perform a local function independent of other blood vessels of the human body.
We think our opinion in Cantwell v. St. Petersburg Port Authority, 155 Fla. 651, 21 So.2d 139, is much more relevant. The Railroad Commission had been authorized to grant franchises for the construction of bridges, ferries, and so on, over bays and inlets connected with the Gulf of Mexico.
The Act was attacked on the ground that it was a local law attempted to be enacted without regard for the constitutional requirements. The court observed that although many counties in the State were not adjacent to the Gulf, many of them were, and that the Gulf affected the people of the counties it did not touch. The court remarked: “It may therefore be said to affect directly or indirectly every citizen of the state.”

80 So.2d at 343-44. Because of the statewide impact of the Water Resources Act and because of the contribution made by each and every water management district and basin to the overall water management plan, we hold that chapter 77-382 is a general law properly enacted by the Florida Legislature.

Since we find chapter 77-382 to be a constitutionally valid statute, we do not reach the issue of whether the district court erred in holding that its decision would be prospectively applied.

On cross-appeal, Deseret contends that the St. Johns River Water Management District is levying state ad valorem taxes prohibited by article VII, section 1(a), Florida Constitution. We reject this contention as did the district court. Article VII, section 9, Florida Constitution, specifically authorizes the levying of ad valorem taxes for water management purposes. Section 373.503 provides the implementing legislation for ad valorem taxation to finance the works of the District. The determinative question is whether the ad valo-rem tax receipts are used to further a local purpose. In Board of Public Instruction of Brevard County v. State Treasurer, 231 So.2d 1 (Fla.1970), we upheld the constitutionality of statutes providing for local support of public junior colleges not under the control of the local school board. In finding that ad valorem taxes levied for such support are not prohibited state ad valorem taxes, we stated:

Junior colleges serve a state function. So do the universities. So do the free public schools. Junior colleges also serve a distinctly local function.... Ad valorem taxes levied by school districts for support of such institutions are local taxes levied for local purposes.
While the legislature may not circumvent the prohibition of state ad valorem taxation by any scheme or device which requires local ad valorem taxes and then channels the proceeds into essentially state functions which are not also local functions, no such situation is here presented.

231 So.2d at 4. More recently in Sandegren v. State, 397 So.2d 657 (Fla.1981), we upheld a comprehensive mental health plan being challenged as an improper infringement on local taxing power because it required local governments to match state funds for community health services. Citing Board of Public Instruction of Brevard County, we stated that “there is nothing in the state constitution which prohibits the legislature from enacting laws requiring the expenditure of local funds to support programs to the extent that such programs serve a local purpose.” 397 So.2d at 659.

We likewise find that the St. Johns River Water Management District is not levying state ad valorem taxes in violation of article VII, section 1(a), Florida Constitution, because, as the district court properly found:

The fact that water resource conservation, control, planning and development are state functions does hot make them exclusively so. The availability of adequate fresh water supplies is of critical local interest. The interrelations of various areas of the state mandates supervision of the various water management districts to assure that they do not operate at cross purposes. It is clear that simply because a water management district furthers a state function, policy, or purpose does not prevent it from levying ad valorem taxes where the local function, policy, or purpose is similarly vital to the local district area.

406 So.2d at 1140.

Accordingly, the decision of the District Court of Appeal, Fifth District, is affirmed in part and reversed in part.

It is so ordered.

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

      . Chapter 77-382, Laws of Florida, provides in pertinent part:
      Section 1. Subsection (8) of section 373.-0693, Florida Statutes, 1976 Supplement, is amended to read:
      373.0693 Basins; basin boards.—

      (a) On July 1, 1977, the entire area of the St. Johns River Water Management District, less those areas in the Oklawaha Basin, shall be formed into a subdistrict or basin of the St. Johns River Water Management District. Such area shall be designated as the Greater St. Johns River Basin.
      (b) The governing board of the St. Johns River Water Management District shall also serve as the governing board of the Greater St. Johns River Basin.

      . Art. VII, § 1(a), Fla.Const., provides:
      (a) No tax shall be levied except in pursuance of law. No state ad valorem taxes shall be levied upon real estate or tangible personal property. All other forms of taxation shall be preempted to the state except as provided by general law.

      . Art. VII, § 9, Fla.Const., provides:
      SECTION 9. Local Taxes.—
      (a) Counties, school districts, and municipalities shall, and special districts may, be authorized by law to levy ad valorem taxes and may be authorized by general law to levy other taxes, for their respective purposes, except ad valorem taxes on intangible personal property and taxes prohibited by this constitution.
      (b) Ad valorem taxes, exclusive of taxes levied for the payment of bonds and taxes levied for periods not' longer than two years when authorized by vote of the electors who are the owners of freeholds therein not wholly exempt from taxation, shall not be levied in excess of the following millages upon the assessed value of real estate and tangible personal property: for all county purposes, ten mills; for all municipal purposes, ten mills; for all school purposes, ten mills; for water management purposes for the northwest portion of the state lying west of the line between ranges two and three east, 0.05 mill; for water management purposes for the remaining portions of the state, 1.0 mill; and for all other special districts a millage authorized by law approved by vote of the electors who are owners of freeholds therein not wholly exempt from taxation. A county furnishing municipal services may, to the extent authorized by law, levy additional taxes within the limits fixed for municipal purposes. (Emphasis supplied.)


author: EHRLICH, Justice.

text:
    THE FLORIDA BAR. In re AMENDMENT TO INTEGRATION RULE (Waiver of Confidentiality).
    No. 62099.
    Supreme Court of Florida.
    Oct. 21, 1982.
    James C. Rinaman, Jr., President, Jacksonville, William O. E. Henry, President-elect, Lakeland, Bill Wagner, Chairman, Integration Rule and Bylaws Committee, Tampa, Nicholas J. DeTardo, Chairman, Clients’ Security Fund Committee, Hollywood; John F. Harkness, Jr., Executive Director, Tallahassee; and Stanley A. Spring, Staff Counsel, Tallahassee, of The Fla. Bar, for petitioner.
   EHRLICH, Justice.

The Board of Governors of The Florida Bar has petitioned this Court to amend Florida Bar Integration Rule, article XI, Rule 11.12, to allow The Florida Bar to release to the Clients’ Security Fund Committee such information as necessary to assist the Committee in preparing its recommendation on an application for relief. Notice of this proposed amendment was published in The Florida Bar News and the Court has received no adverse comments from interested parties.

In support of this petition, the Bar alleges that since Rule 11.12(4) provides in pertinent part that “[n]o information concerning the pendency or status of an investigation or other confidential matter shall be given unless authorized by the Supreme Court,” The Florida Bar is required to petition this Court, on a case by case basis, for authority to advise investigating members of the Clients’ Security Fund Committee on the pendency or status of any investigation of an accused attorney against whom a claim for relief has been submitted to that committee. The Board of Governors alleges that investigating members of the Clients’ Security Fund Committee should have access to information in grievance matters relating to claims filed with the Fund. It is thus argued that a limited waiver of confidentiality would allow the Bar to release to the investigating member of the Clients’ Security Fund Committee such information as would be necessary to assist the Committee in making an accurate and timely recommendation on the validity of the Application for Relief.

We believe that the proposed amendment would assist in the operation of the Clients’ Security Fund Committee and is in the best interest of the public and the legal profession. However, the amendment as submitted to us failed to include language that the Clients’ Security Fund Committee maintain the confidentiality of the information so received. We have therefore added appropriate language to this effect. Accordingly, Florida Bar Integration Rule, article XI, Rule 11.12 is hereby amended to include the following language. This amendment shall be effective immediately.

(6) In all cases where an application for relief has been filed with the Clients’ Security Fund the investigating member of the Clients’ Security Fund shall, upon request to the staff counsel or designee, be furnished with such information as necessary to assist the Clients’ Security Fund Committee in preparing its recommendation on the validity of the application for relief. Such information shall be kept confidential by the Clients’ Security Fund Committee.

It is so ordered.

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


author: PER CURIAM. BOYD, Justice,

text:
    Thomas McCAMPBELL, Appellant, v. STATE of Florida, Appellee.
    No. 57026.
    Supreme Court of Florida.
    Oct. 28, 1982.

      Michael M. Corin, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Thomas McCampbell appeals his conviction of first degree murder and sentence of death after a jury recommendation of life imprisonment, and his conviction of armed robbery. We have jurisdiction. Art. Y, § 3(b)(1), Fla. Const. We affirm the conviction of first degree murder and remand to the trial court for the imposition of a sentence of life imprisonment without eligibility of parole for twenty-five years. The judgment of conviction for armed robbery is reversed and remanded for a new trial.

On April 7, 1978, at approximately 7:00 p.m., four males entered the Winn Dixie Kwik Check store in Pensacola. All were armed with pistols. One, Ernest Benjamin, went to the office booth to get money from the safe. A second, Mose Calhoun, proceeded to rob the registers. A third, James Hawthorne, and appellant went to the rear of the store to guard the people in the back. A fifth, James McCord, remained outside in the getaway car. Morley Griffin Ray, a corrections officer for the Escambia County jail, was working as a security guard for the Winn Dixie store at the time of the robbery. Appellant came up behind Ray, put a gun to his head, and while the guard was squatting down, fired one bullet into the back of his head, killing him.

A few days after the robbery, Ernest Benjamin was arrested for the crime. He cooperated with the police and identified the triggerman and the other participants. All were ultimately arrested.

At the trial, Calhoun, McCord and Benjamin testified on behalf of the state and were permitted to plead guilty to reduced charges. They identified appellant as the triggerman. Appellant presented a defense of alibi and called numerous witnesses during the presentation of his case.

The jury returned verdicts finding the appellant guilty of murder in the first degree and guilty of robbery with use of a firearm. At the penalty phase of the trial, mitigating evidence was presented on behalf of the appellant concerning his home life, employment background, and potential for rehabilitation. After deliberating approximately six minutes, the jury recommended to the trial court that it impose a sentence of life imprisonment upon the appellant. No pre-sentence investigation was ordered by the trial court but counsel were requested to supply the trial judge with briefs and proposed findings of fact concerning aggravating and mitigating circumstances. At the sentencing proceeding, the trial judge declined to follow the jury’s life recommendation and sentenced the appellant to death for the offense of murder in the first degree, and for the offense of armed robbery, to life in prison.

The appellant raises eight points on his appeal. The issues have been well briefed by the parties and carefully considered by this Court. Only four of the points raised, however, warrant discussion in this opinion. The other points are rejected as being without merit.

I.

Relying upon our decision in Tascano v. State, 393 So.2d 540 (Fla.1980), appellant contends that the trial court committed reversible error when it denied his request that the jury be instructed on penalties for all the offenses charged.

In Tascano this Court held that upon request of either party, it is mandatory that an instruction be given on the maximum and minimum penalties that may be imposed. Tascano was a decision post-dating the trial in the instant case. However, we noted that “all others who have preserved this point on appeal, receive the benefit of this interpretation of the rule.” 393 So.2d at 541. It is necessary, then, to look at the two charges separately and see if error occurred.

In Welty v. State, 402 So.2d 1159 (Fla.1981), this Court addressed the issue of whether in capital cases the failure to give penalty instructions pursuant to Tascano required a reversal. There, we noted that on several occasions during the trial, the fact that death was the maximum penalty and life imprisonment the minimum penalty for murder in the first degree was made known to the jury. “The trial court’s failure to again advise the jury what it had already been told was not reversible error.” 402 So.2d at 1162. Likewise in the instant case, while the jury did not receive a specific instruction as to the penalty to be imposed for the capital crime offense, the jury was not ignorant of the penalties that could be imposed. A review of the voir dire reflects that not only the defense but the State inquired of the potential jurors as to their abilities to impose either the death sentence or life in prison. The spirit of the Tascano rule was thus clearly met since the jury had the information as to maximum and minimum penalties. We hold, therefore, that appellant’s Tascano argument as related to the murder charge is without merit.

However, a contrary result is mandated with respect to the robbery charge. The jury was not advised of the maximum and minimum penalties for conviction on the robbery count during the trial. Thus, the judgment of conviction for the crime of robbery with the use of a firearm is reversed and remanded to the circuit court for a new trial on this one charge.

II.

Appellant asserts that the trial court erred by adjudicating and sentencing the appellant for the offense of robbery with a firearm in violation of the Double Jeopardy clause of the United States Constitution as applied to the states through the Fourteenth Amendment. Even though appellant’s conviction for robbery has been reversed, supra, this argument is not moot since the state may wish to retry appellant. Appellant’s argument is that given the ambiguous verdict (not knowing if the jury were finding guilt of premeditated murder or felony murder), the logical choice would be felony murder; that being so, guilt and sentencing on the robbery charge must be vacated as a double jeopardy violation. State v. Pinder, 375 So.2d 836 (Fla.1979), receded from in State v. Hegstrom, 401 So.2d 1343 (Fla.1981). However, we have said that if there be sufficient evidence to support a finding by the jury of premeditated murder, the principles announced in Pin-der would not be applicable. Buford v. State, 403 So.2d 943 (Fla.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319, and cert. denied, 454 U.S. 1164, 102 S.Ct. 1039, 71 L.Ed.2d 320 (1982). In the instant case, the testimony of witnesses Young, Schmidt, Orlicka, and Calhoun present adequate proof of premeditation. “If the evidence shows that the accused had ample time to form a purpose to kill the deceased and for the mind of the killer to become fully conscious of his own design, it will be deemed sufficient in point of time in which to enable the killer to form a premeditated design to kill.” 403 So.2d at 949. There being adequate proof of premeditation, appellant may thus be convicted and sentenced for the robbery offense.

III.

Appellant argues that the trial court erred by rejecting the jury’s sentencing recommendation of life imprisonment and by imposing a sentence of death upon the appellant. Since this Court has the responsibility to determine independently whether a death sentence has been imposed in a manner constitutionally correct, section 921.-141(4), Florida Statutes (1981), we review the trial court’s findings of the aggravating and mitigating circumstances to determine if that court properly imposed the death sentence.

The trial judge’s findings were based on no material extraneous to the record, and all considerations by that court were made available to the appellant and to the State, and each party had ample opportunity to respond thereto.

The trial judge correctly found three of the statutory aggravating circumstances listed in section 921.141(5), Florida Statutes (1981). First, the capital felony was committed by a person under sentence of imprisonment. Appellant had been paroled by the Alabama Board of Corrections on February 27, 1978 and his parole had not expired as of the time of the instant crime. Second, the defendant had been previously convicted of a felony involving the use or threat of violence to the person. In June 1973, appellant had been convicted in Dallas County, Alabama of assault with intent to murder and assault with intent to rob. Third, the capital felony was committed while the defendant was engaged in or was an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit a robbery. The evidence shows that the murder was committed while appellant was engaged in the commission of an armed robbery. No other aggravating circumstances were found by the trial judge.

The trial judge found none of the statutorily-listed mitigating circumstances. Counsel for appellant presented briefs to the trial judge detailing other mitigating factors. These included the appellant’s employment background, his prior conduct record while in the State Prison System of Alabama, and his home life. Also presented was information on the possibility of appellant’s rehabilitation if incarcerated in the prison system of this State as well as the fact that the sentences of the co-defendants did not involve the death penalty. The trial judge concluded that none of these factors merited substantial weight.

However, the trial judge’s written sentencing findings state that he considered the fact that appellant never acknowledged his guilt or showed any remorse before the court. In addition, the trial judge concluded that the appellant procured the perjury of his girlfriend for the purpose of assisting in the establishment of his efforts to prove an alibi defense.

This Court has held that aggravating circumstances must be limited to those provided for by statute. Miller v. State, 373 So.2d 882 (Fla.1979); Purdy v. State, 343 So.2d 4 (Fla.), cert. denied, 434 U.S. 847, 98 S.Ct. 153, 54 L.Ed.2d 114 (1977). Neither the failure of the appellant to acknowledge his guilt nor demonstration of remorse is a valid statutory aggravating circumstance. To the degree that the trial judge justified his position on his belief that the appellant had procured the perjured testimony of his girlfriend to buttress the alibi defense, his conclusion is unsupported by law or fact. There is neither any evidentiary support in the record for this conclusion, nor is it a statutorily-enumerated aggravating circumstance.

The trial court also classified the jury’s recommendation as unreasonable because of the brevity of its penalty deliberation. The jury spent about six hours deliberating the guilt issues. At the penalty phase, the jury heard 140 pages of testimony and argument bearing on the question of life or death. They were instructed to base their verdict on the evidence presented at both proceedings. It cannot be concluded that the jury did not have sufficient time within which to consider its penalty verdict.

The jury recommended a sentence of life imprisonment. Because it represented the judgment of the community as to whether the death sentence is appropriate, the jury’s recommendation is entitled to great weight. Goodwin v. State, 405 So.2d 170 (Fla.1981); Odom v. State, 403 So.2d 936 (Fla.1981), cert. denied, - U.S. - , 102 S.Ct. 1970, 72 L.Ed.2d 440 (1982); Welty v. State, 402 So.2d 1159 (Fla.1981); Williams v. State, 386 So.2d 538 (Fla.1980); Neary v. State, 384 So.2d 881 (Fla.1980); Tedder v. State, 322 So.2d 908 (Fla.1975). From an objective review of the record, it appears the jury could have been influenced in its recommendation for life imprisonment by the following factors: (1) appellant’s exemplary employment record; (2) appellant’s prior record as a model prisoner; (3) the positive intelligence and personality traits detailed through the testimony of Dr. Yarbrough which showed the appellant’s potential for rehabilitation; (4) appellant’s family background; and (5) the disposition of the co-defendants’ cases. In Tedder we said: “In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.” 322 So.2d at 910. That is not the situation in the instant case. Given all the facts and circumstances, we find that the action of the jury was reasonable and should not have been overruled by the trial judge.

IV.

The appellant contends that the Florida death penalty statute is unconstitutional because its application is arbitrary and capricious. The argument presented is that the review of legislatively-authored aggravating and mitigating circumstances by this Court leads to a piecemeal and standardless lack of uniformity between cases in violation of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) and Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). However, this point need not be met because of our reversal of the death sentence supra.

V.

In conclusion, we find that the evidence is clearly sufficient and that the record sustains the conviction for the crime of first degree murder. The sentence of death is vacated and the cause is remanded to the trial court for imposition of a sentence of life imprisonment without eligibility of parole for twenty-five years. The judgment of conviction for the crime of robbery is reversed and remanded to the trial court for a new trial.

It is so ordered.

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

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

ADKINS, J., concurs with conviction and dissents with sentence.

BOYD, Justice,

concurring in part and dissenting in part.

I concur in the majority opinion in affirming the conviction of first-degree murder and in reversing the conviction of armed robbery and permitting a new trial for that offense.

I respectfully dissent to that portion of the majority opinion reducing the penalty from death to life imprisonment without eligibility for parole for the first twenty-five years.

The court properly found three aggravating circumstances:

(1) The capital felony was committed by a person while under a sentence of imprisonment.

(2) The defendant had been previously convicted of a felony involving the use or threat of violence to the person.

(3) The capital felony was committed while the defendant engaged in or was an accomplice in the commission, or attempt to commit or flight after committing or attempting to commit a robbery. The murder was committed while appellant was committing a robbery.

Although the trial court stated that appellant showed no remorse and that appellant had procured the perjury of his girlfriend in attempting to establish an alibi. I construe those remarks as a basis for the court’s independent concurrence with the jury’s finding of guilt and not as an aggravating circumstance.

The mitigating circumstances were not sufficient to overcome the above-stated aggravating circumstances. I would reverse the armed robbery conviction and authorize a new trial for that crime. I would affirm the conviction of murder in the first degree and would affirm the penalty of death.


text:
    In re Inquiry Concerning a Judge, Honorable W. Fred TURNER.
    No. 61218.
    Supreme Court of Florida.
    Oct. 28, 1982.
    Steven A. Werber of Commander, Legler, Werber & Dawes, Jacksonville, for the Florida Judicial Qualifications Com’n, petitioner.
    James G. Etheredge of Etheredge & Miller, Fort Walton Beach, for respondent.
   PER CURIAM.

This Court is presented with recommendations from the Florida Judicial Qualifications Commission regarding the Honorable W. Fred Turner, Circuit Judge of the Fourteenth Judicial Circuit. That commission has made findings of misconduct and recommends a public reprimand. We accept its findings and adopt its recommendation. Because of the significance of any finding of misconduct of a judicial officer, we publicize the findings in full.

FINDINGS

The Florida Judicial Qualifications Commission by a vote of at least nine of its members found the Respondent Judge guilty of the misconduct alleged in the following Counts and found the following facts:

COUNT I

(a) A hearing was held before Judge Turner on March 2, 1981 involving the custody of a minor child. Three witnesses testified as to the relative fitness of the mother, Cindy Ann Adams (Cindy), and the father, William B. Adams, regarding the custody of the minor child. Available time did not permit the Court to hear the testimony of other witnesses, including the mother and father. At the time of the hearing temporary custody was in the mother and at the conclusion of the hearing the Court announced that it would remain in the mother and ordered that a home study of each party be conducted by the Department of Health and Rehabilitative Services. Of significance is the statement by Judge Turner that the Department should be considered by the parties as “the eyes and ears of the Court”. Judge Turner also testified that during or after the hearing he told either Cindy or her lawyer, Pamela Sutton, that Cindy should not have any men spending the night with her. Both Cindy and Ms. Sutton stated that they did not hear the Judge give any such admonition.

At approximately 7:30 p.m. on the evening of the hearing, Judge Turner, without notice to the parties or their counsel, visited the home of Cindy Adams, who is a 23-year-old attractive young lady, for the announced purpose of determining whether she was entertaining any male visitors and to observe the overall environment of the home. Judge Turner was invited to inspect the home and particularly the bedrooms, and that occupied by the minor child, but he declined to do so.

A male visitor, Jack Needham, was in the home, having been invited to dinner, and at the time of the Judge’s visit was watching a television program with Cindy and her minor son. Judge Turner inquired as to Jack Needham’s name and left shortly thereafter.

Approximately 20 minutes later Judge Turner returned to the home and upon entering inquired “is Jack still here?”, to which Cindy replied, “Yes, he’s in the bathroom”. When Jack returned to the living room, Judge Turner admonished him and stated that his presence was jeopardizing Cindy’s chances of continuing to have custody of her son. Cindy responded that her attorney had advised her to have visitors for her protection.

Judge Turner replied, “I’m telling you that he (Jack) shouldn’t be here.” He then wiggled his fingers stating that he (Judge Turner) was like a rattlesnake and that a rattlesnake shakes his rattle just before he strikes. The Judge then departed.

Shortly after the Judge departed, Cindy, who was confused by the Judge’s visits, went to the home of .her nearest neighbor and telephoned her attorney for advice.

At approximately 12:30 a.m., Judge Turner returned to the trailer. The trailer was dark and the Judge pounded on the door and repeatedly called out, “Mrs. Adams, Mrs. Adams (Cindy), are you there?” He then walked around the trailer, continuing to call her name and at the same time shined his flashlight into several windows, including her bedroom window. Cindy, who was in bed with her son (Jack having departed hours ago), pulled the covers over her head and did not respond — finally, after approximately 10 minutes, the Judge left.

The following morning, shortly before 9:00 a.m., Judge Turner’s secretary telephoned Cindy’s attorney, Pamela Sutton, and requested that she appear at Judge Turner’s chambers for a conference regarding Cindy’s case. Ms. Sutton appeared as was requested and upon observing that the husband’s attorney was not present, advised the Judge that she felt it would be improper to discuss any facet of the case on an ex-parte basis. Judge Turner responded that it was perfectly all right to discuss the case and then informed her that he had “dropped in on” Cindy the evening before and had returned some 20 minutes later (of which Ms. Sutton was well aware). The Judge advised her that he was “shocked” that Cindy would have a man in her home the very night after her court appearance and that he wanted Ms. Sutton to monitor the situation. Ms. Sutton asked for a clarification of what she was to monitor. The Judge announced that he didn’t want any overnight visitors for sexual purposes “or that sort of thing going on”.

Since Judge Turner had only observed a male visitor watching television at approximately 7:30 p.m. in the company of Cindy and her young son, Ms. Sutton was confused as to the Judge’s reference and requested that he enter a written order clarifying specifically his directions. He refused to do so and announced his intention to schedule a hearing for the purpose of determining the reason for Jack Needham’s presence in the home. The foregoing conference lasted approximately 20 minutes during which time Ms. Sutton repeatedly objected to its ex-parte nature as well as to the Judge’s home visits which she characterized as similar to an unauthorized jury view and further stated that the Judge, by his conduct, had become a witness and could no longer exercise his judicial role.

Of material significance to the Commission is the fact that Judge Turner, at no time during the conference, revealed the fact that he had made a third visit to the house trailer.

Ms. Sutton forthwith filed a Motion to Recuse Judge Turner supported by full affidavits from Cindy Adams, Jack Need-ham and herself setting forth in detail the foregoing facts. The Motion for Re-cusal contained the additional ground that Judge Turner had previously, while an Attorney, represented the husband in a criminal case, a fact of which Judge Turner was unaware until it was called to his attention. Judge Turner entered an order granting the Motion for Recusal solely on the ground of his prior representation of the husband and specifically found that although he had considered the other grounds of the motion, they were without merit.

The Commission finds that Judge Turner’s visits to the home of Cindy Adams were beyond the scope of his judicial role and constituted an abuse of his judicial powers. Even assuming that his visits were for the purpose of enforcing his alleged “no overnight visitors” instructions, it is readily apparent that a visit at 7:30 p.m. would not accomplish this purpose. Furthermore, the pounding upon her door and shining a flashlight in her bedroom window is conduct that cannot be justified. Finally, the ex-parte communication with Ms. Sutton constitutes a direct violation of the Code of Judicial Conduct.

COUNT II

(b)At the conclusion of the three-day trial of State of Florida v. Cater and Sherrill, case number 76-627, on December 21, 1979 (four days prior to Christmas), Judge Turner adjudged Attorney Tom Ingles in contempt of court and sentenced him to a fine of $75 or 24 hours in jail. Upon Mr. Ingles’ failure to pay the fine, the Judge directed that he be incarcerated in the county jail. Mr. Ingles was “booked” by being photographed with a number dangling from his neck, his belt and personal items were removed from his clothing, and in general he was treated as a common criminal. As a result of the Judge’s actions, the television media in the Panama City area broadcast this incident resulting in considerable embarrassment to Mr. Ingles’ family and friends. The Judge asserted that he had repeatedly informed Mr. Ingles that he was not following instructions and rulings of the court as to the proper method of impeaching a witness and that Mr. In-gles’ failure to do so was willful. A review of the transcript of the trial proceedings, together with the testimony adduced during this hearing, completely fails to support the Judge’s contentions and affirmatively demonstrates that the finding of contempt was unwarranted. In holding Mr. Ingles in contempt, Judge Turner displayed an arrogant attitude which constituted an arbitrary abuse of his powers as a Circuit Judge.

(c) Conflicting testimony was presented in the trial of State of Florida v. Manuel B. Hutchinson, on April 29, 1980, by witnesses Kathy Johns and Bill Grinslade. Judge Turner decided that one of the two witnesses was lying; it follows, therefore, that one was telling the truth. The Judge thereupon directed that the two witnesses be taken into custody and held without bond so that the State Attorney could investigate the matter and institute perjury charges against the witness who was lying. While the witness Grinslade was released shortly thereafter, Kathy Johns, although never having been formally charged with any crime or offense, was taken to the Bay County Jail and incarcerated for several hours.

The Commission finds that the conduct of Judge Turner, in depriving these two citizens of elementary due process, constitutes an arrogant, arbitrary and capricious abuse of his powers as a Circuit Judge.

(d) On May 17, 1979, in Allen v. Whisen-hunt, Judge Turner summarily held a young attorney, DeDee Costello, in contempt of court with the admonition “... we will settle this matter at the end of this case”, for making objections to the Judge’s comments from the bench. This was done in the presence of other lawyers, her client, and spectators. The Judge made derogatory comments as to the expertise of the lawyers participating in this trial to such an extent that an older member of the Bar asked for a conference with the Judge, and in such conference advised him that he was abusing his powers from the bench.

The Commission, after a review of the transcript of the Whisenhunt trial, and after consideration of the testimony of witnesses adduced during the hearing, finds that the conduct of Judge Turner during the course of said trial constitutes an arrogant, arbitrary and capricious abuse of his powers as a Circuit Judge.

COUNT III

(b) During the course of the instant hearing, considerable testimony and documentation was adduced which reflects a fixation on the part of Judge Turner as to the proper legal method for using depositions or other materials in the impeachment of witnesses. However, in reviewing the transcripts of several trials conducted by Judge Turner, legally trained members of the Commission doubt that the method the attorneys were using was clearly wrong, and in any event Judge Turner failed to effectively explain to the attorneys what he felt they were doing improperly. This fixation on the part of the Judge was fully evidenced during the trial of State v. Cater and Sherrill in which he admonished Attorney Jim Fensom for his lack of professional ability, stating from the bench that Fensom was a .master of minutiae, and “... tripping the light fantastic and chasing butterflies,” and other derogatory comments. The Judge stated át one point during said trial that he was going to teach attorneys how to impeach a witness even if he had to put every attorney in Bay County in jail.

The Commission finds that the conduct of Judge Turner, by his statements from the bench during the trial of Cater and Sherrill, castigating Attorney Fensom, in the presence of lawyers, spectators and clients, constitutes an arrogant, arbitrary and capricious abuse of his powers as a Circuit Judge.

(e) The transcript of proceedings in the trial of Allen v. Whisenhunt, supra, and testimony of witnesses, discloses that Judge Turner engaged in general tirades directed to Attorney DeDee Costello during the trial, wherein he frequently made such statements from the bench as “. .. A first-year law student should know better”, all in the presence of her client, spectators, and other attorneys. Such conduct demeans the dignity of a judicial proceeding and casts a cloud upon the judicial system. During said trial, the Judge, without provocation, ordered Ms. Costello to remain seated and directed her not to state any grounds for objection. A long-established rule of law is that grounds of an objection must be stated to the trial judge in order to be considered upon appellate review. The simple observation of an attorney, that “I object”, will not be considered by an appellate court. By this arbitrary order, the Judge was depriving Attorney Costello and her client of establishing a record that could be successfully appealed. The fact that the jury was unaware of the Judge’s order served to exacerbate the situation because in the jury’s eyes Ms. Costello may have appeared either incompetent or impolite when in the course of making objections she failed to explain them or even stand up.

The Commission finds that by his actions Judge Turner failed to observe elementary standards of judicial conduct and that his actions impeached the public’s confidence in the integrity and impartiality of the Judiciary, and that he failed to accord this lawyer and her client a right to be heard according to law.

CONCLUSIONS

The conduct of Judge Turner as described herein brings the Judiciary into disrepute and this file will remain open and the future conduct of this Judge will be monitored by the Commission. (In re Kelly, 238 So.2d 565, Fla.1970).

The Commission finds by the necessary vote required by the Constitution of the State of Florida and the Rules of the Florida Judicial Qualifications Commission, that the Respondent Judge is guilty of conduct unbecoming a member of the Judiciary.

The Florida Judicial Qualifications Commission recommends to the Supreme Court of Florida that W. Fred Turner be publicly reprimanded.

Earnestly urging that there was no intent to violate any provisions of the judicial code and expressing a sincere effort to abide by the code and properly fulfill his responsibilities as a judicial officer, Judge Turner acknowledges that there is competent substantial evidence to support the commission’s findings, except finding 11(c). In regard to this charge he suggests that section 914.13, Florida Statutes (1979), authorizes his actions of ordering the two witnesses to be taken into custody. We disagree. That statute does not allow the arrest of two witnesses when testimony is conflicting. To authorize such action would create a chilling effect on any witness disagreeing with another because it could lead to one of them being detained improperly until the state attorney decides to prosecute one of them for perjury. The utilization of section 914.13 must be exercised with care to protect the innocent and only when the judge has a reason to believe the person sought to be detained actually committed perjury.

The actions of Judge Turner occurred early in his judicial career. Before that, Judge Turner had been an aggressive trial lawyer. The transition from a forceful, effective advocate to an impartial, considerate judge is not an easy task and cannot always be accomplished overnight. Nevertheless, all persons becoming judges must be aware of a judge’s obligations and strive to fulfill them. The duties, responsibilities, and powers entrusted to judges are awesome. Judges must necessarily have a great deal of independence in executing these powers, but such authority should never be autocratic or abusive. We judges must always be mindful that it is our responsibility to serve the public interest by promoting justice and to avoid, in official conduct, any impropriety or appearance of impropriety. We must administer our offices with due regard to the system of law itself, remembering that we are not depositories of arbitrary power, but judges under the sanction of law. Judges are expected to be temperate, attentive, patient and impartial, diligent in ascertaining facts, and prompt in the performance of a judge’s duties. Common courtesy and considerate treatment of jurors, witnesses, court personnel, and lawyers are traits properly expected of judges. Court proceedings and all other judicial acts must be conducted with fitting dignity and decorum, reflecting the importance and seriousness of the inquiry to ascertain the truth.

We regret that Judge Turner deviated from some of these time-honored expectations of judges. He is hereby reprimanded for his conduct. At the same time we are satisfied of his desire to properly fulfill his societal role of a judge and future derelictions are unlikely. We further trust that the publication of this opinion will act as a reminder to all judges that we have been given a unique trust and that pains must be taken to assure that we fulfill that trust.

It is so ordered.

ALDERMAN, C.J., and BOYD, OYER-TON, MCDONALD and EHRLICH, JJ., concur.

ADKINS, J., concurs in result only.

       Cindy’s residence, a house trailer, was located in a sparsely populated area a considerable distance from the nearest neighbor. She had no telephone and had been threatened physically by her husband. There was also testimony that a witness who testified against her at a custody hearing had physically assaulted her in her home approximately two weeks prior to the Judge’s visit.

       At the time of the meeting, Ms. Sutton was unaware of the third visit and did not discover it had occurred until she talked to Cindy later in the day.

       Perjury is made a criminal violation by and defined in § 837.02, Fla.Stat. (1979), as:
      (1) Whoever makes a false statement, which he does not believe to be true, under oath in an official proceeding in regard to any material matter shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
      (2) Knowledge of the materiality of the statement is not an element of this crime, and the defendant’s mistaken belief that his statement was not material is not a defense.


text:
    Daniel DENHAM and Georald Denham, Appellants, v. STATE of Florida, Appellee.
    No. 82-186.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 1982.
    Rehearing Denied Dec. 9, 1982.
    Craig S. Dyer of Shaffner, Shaffner & Dyer, P.A., Fort Lauderdale, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellants were convicted of attempted murder and possession of a firearm while engaged in a criminal offense. We affirm.

After a review of the briefs and record, we find the points urged on appeal lacking in merit. Appellants contend they were improperly prevented from exercising a “back-strike” against a prospective juror. We find that this issue was not properly preserved for appeal but in passing note that prospective jurors may be challenged at any time before the jury is sworn to try the case. See Florida Rule of Criminal Procedure 3.310 and Knee v. State, 294 So.2d 411 (Fla. 4th DCA 1974). “Back-striking” or back-challenging should not be prohibited by a trial court. The appellants’ convictions are hereby affirmed.

AFFIRMED.

DOWNEY, ANSTEAD and BERANEK, JJ., concur.


author: SHARP, Judge.

text:
    John BESECKER, Appellant, v. SEMINOLE COUNTY, Florida, a political subdivision of the State of Florida, Appellee.
    No. 81-683.
    District Court of Appeal of Florida, Fifth District.
    Sept. 1, 1982.
    Rehearing Denied Sept. 29, 1982.

      Marcia K. Lippincott, Orlando, and James 0. Cunningham, Orlando, for appellant.
    Steven F. Lengauer, of Pitts, Eubanks & Ross, P.A., Orlando, for appellee.
   SHARP, Judge.

Besecker appeals from the dismissal of his amended complaint against Seminole County. He was injured in a collision at an intersection in the County where there were no traffic control signs or devices of any kind. He alleged the County had a duty to inspect, design, and maintain the County’s roads and intersections, and that it knew or should have known the intersection was dangerous because there had previously been a number of near collisions there. Be-secker concluded that the County’s failure to put any kind of traffic control device at the intersection caused the collision in which he was injured. The trial court dismissed the amended complaint on the grounds that Besecker’s suit was barred by sovereign immunity because the County’s alleged failure to act fell within the realm of planning level activities as opposed to the operational level. We affirm.

The determination of this case requires the application of Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979) beyond the limits expressly stated by the Florida Supreme Court. In Commercial Carrier, the supreme court declined to consider whether liability can be imposed on governmental bodies for failure to place traffic control devices at an intersection. Other district courts of appeal appear to be reaching different results in answering this question.

In the present ease, the plaintiff did not allege the County designed and built the intersection in a manner to make it hazardous. The plaintiff further failed to allege a sufficient basis to support his legal conclusion that the County knew the intersection was dangerous, thereby making the need to put up some kind of traffic control device so clear that this kind of decision became an operational rather than a planning level decision. See Department of Transportation v. Webb, 409 So.2d 1061 (Fla. 1st DCA 1982). The plaintiff merely alleged there had been “near accidents” at this intersection and that the County had been told (by someone) that a stop sign was needed. Unlike the Webb case, the County had not admitted that the intersection was dangerous and that the installation of a device to protect motorists was required.

AFFIRMED.

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

      . Compare Neilson v. City of Tampa, 400 So.2d 799 (Fla. 2d DCA 1981) (court found complaint which alleged negligence on the part of the city, county and Department of Transportation in maintaining and designing an intersection and in failing to put up an adequate traffic control device stated a cause of action) with Ingham v. State Dep’t. of Transp., 399 So.2d 1028 (Fla. 1st DCA 1981) (majority held the trial court properly dismissed the complaint, which alleged the Department of Transportation was negligent in constructing the road, placing and designing the median, and failing to provide adequate signals, because such activities are discretionary policy functions).


text:
    CITY OF SUNRISE, Appellant, v. D.C.A. HOMES, INC. f/k/a Oakhill Homes, Inc., Appellee.
    No. 79-2094.
    District Court of Appeal of Florida, Fourth District.
    Sept. 8, 1982.
    Rehearing Denied Dec. 8, 1982.
    Grafton N. Carlson and Arthur B. Park-hurst of Parkhurst, Pickford, Ayres & Carlson, Fort Lauderdale, for appellant.
    Gary M. Farmer of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for appellee.
   PER CURIAM.

The City of Sunrise appeals from an order of the Broward Circuit Court which declared its “Sign Code” unconstitutional.

Appellee, a real estate developer engaged in the manufacturer and marketing of residential housing within the City of Sunrise, utilizes and relies heavily upon billboard advertising. Appellee maintained at least twelve such signs located throughout the City. With the enactment of Ordinance 53-A, these billboards became illegal because they constitute what the ordinance refers to as “off-site” signs. The ordinance provides that only one off-site sign may be erected per subdivision.

Appellee sued to enjoin the City from enforcing Ordinance 53-A, alleging that it was unconstitutional. The trial court agreed, specifically concluding:

2. Ordinance Number 53-A is an unreasonable exercise of the police powers of the defendant, predicated, as it is, on esthetics alone, because it constitutes an abridgment of plaintiff’s freedom of speech guaranteed by Article I, § 4 of the Florida Constitution and the First Amendment of the United States Constitution.
6. The defendant has failed to establish a compelling governmental interest as a basis for enacting Ordinance Number 53-A, which contains an abridgment on free speech; and plaintiff has further failed to provide the least drastic interference with plaintiff’s First Amendment freedoms to advertise its developments. Ordinance Number 53-A therefore violates the First Amendment to the United States Constitution.

The stated purpose of Ordinance 53-A is to enhance the aesthetic appeal of the City of Sunrise. Florida has long recognized that local governments may legislate to protect the appearance of their communities as a legitimate exercise of their inherent police power. Sumad, Inc. v. City of Sarasota, 122 So.2d 611 (Fla.1960). If any doubt remained as to the propriety of such legislation, surely such was put to rest by the recent United- States Supreme Court decision in Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981), which unequivocally recognized that protection of aesthetic interests is a substantial government goal. Therefore, we disagree with that portion of the lower court’s order which declares that aesthetics, in and of itself, is not a “compelling governmental interest.”

We next focus our attention on the concern expressed by the trial court, and appellee, as to the adverse impact which Sunrise’s ordinance will have on ap-pellee’s business. Such considerations are not germane to the issue at hand, but we are not unsympathetic with the plight of appellee should the ordinance be allowed to stand. However, our responsibility concerns only the constitutionality of the ordinance. The legislature, or in this case the city council, has the duty of considering the ramifications of its enactments. Once this duty has been fulfilled by the passage of a law, it is not the function of the courts to pass on its wisdom. If the law bears a reasonable relation to legitimate governmental interests, the courts will uphold the law as a proper exercise of the government’s inherent police power. In this regard, we quote the opinion of the First Circuit in John Donnelly & Sons v. Campbell, 639 F.2d 6 (1st Cir.1980), where the court said:

Plaintiffs complain of the enormity of legislation which would abolish their entire business, per se. Times change, and business with them. The iceman no longer cometh, the buggy whip manufacturer has passed from the scene, and one could name countless enterprises that have failed because of a change in public demand or sentiment. Equally, public concern may overcome the economic interests of private individuals, and a state may wholly prohibit a heretofore lawful business and destroy an entire industry.

Id. at 14-15.

The test which we now employ to determine the constitutionality of the ordinance is that set forth by the Supreme Court in Central Hudson v. Public Service Comm’n of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980).

In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within the provision, it at least must concern lawful activity and not be misleading. Next, we ask if the asserted government interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.

Id. at 566, 100 S.Ct. at 2351.

No question exists as to the legality of appellee’s business. Likewise, we have already acknowledged that appellant has a substantial interest in aesthetics. We also conclude that the ordinance directly advances the City’s asserted interest and that the ordinance is not more extensive than is necessary to serve the City’s interest. Therefore, the ordinance meets the tests enunciated in Hudson, supra. Here, the ordinance applies only to commercial signs. In Metromedia, Inc., supra, the Supreme Court found the San Diego ordinance unconstitutional on its face because the ordinance afforded a greater degree of protection to commercial speech than to non-commercial speech. The ordinance sub judice does not prohibit non-commercial signs nor does it afford commercial signs a preferred status.

Lastly, the Supreme Court of Florida has affirmatively answered the question, “Can a municipality separately classify off-site advertising signs and on-site signs solely on the basis of aesthetics thereby restricting the size of off-site signs?” City of Lake Wales v. Lamar Advertising Ass’n, 414 So.2d 1030 (Fla.1982). In answering this question the Supreme Court found it necessary to recede in part from Sunad, supra, and recognize that a valid distinction exists between on- and off-site signs.

The Sunad Court, however, refused to recognize any aesthetic differences between on- and off-site signs. As pointed out by the district court in its well-documented opinion, numerous jurisdictions have gone the opposite direction. We find this Court’s refusal in Sunad to recognize an aesthetic difference between on-site and off-site signs to be contrary to the majority and better-reasoned view, and we recede from that holding. We agree that “[zjoning solely for aesthetic purposes is an idea whose time has come; it is not outside the scope of the police power.” Westfield Motor Sales Co. v. Town of Westfield, 129 N.J.Super. 528, 539, 324 A.2d 113, 119 (1974).
Cities have the authority to take steps to minimize sight pollution and, if in doing so they find it reasonably necessary to make a distinction between on-site and off-site signs, there is no constitutional impediment preventing that distinction. (Footnotes omitted)

Id. at 1032.

Accordingly, we find that the trial court erred when it held City of Sunrise Ordinance 53-A unconstitutional and remand this cause with instructions to dissolve the injunction prohibiting enforcement of Ordinance 53-A and for such other orders as may be consistent herewith.

REVERSED and REMANDED.

LETTS, C.J., DELL, J., and OWEN, WILLIAM C., Jr., (Retired) Associate Judge.

NOTE: DELL, J., did not participate in oral argument but has reviewed the recorded presentation made at that proceeding.

      . The lower court found:
      Plaintiff’s off-site billboard directional signs are necessary in the marketing of its homes; and approximately 40-50% of all purchasers seen by plaintiffs sales agents at the model homes originated because of these off-site billboard signs.

      . City of Sunrise Ordinance 53-A defines an off-site sign as follows:
      Off-premises sign (off-site, billboard sign):
      This a third party sign. It is a sign that advertises goods, products, services, or facilities or directs persons to a different location from where the sign is installed.

      . Section 7.1(e) of the ordinance provides: “One sign shall be allowed per subdivision .... ” Apparently this provision applies only to off-site signs. In the case of on-site signs, the ordinance would allow [Section 4.1(b)]:
      For multiple family uses, no more than two identification signs for each developed parcel or building as determined by the Administrator of this Code, each not exceeding six square feet of area.

      .We note that neither the court below, nor the parties, had the benefit of Metromedia when this case was heard and decided.

      . Section 1.1 provides:
      Statement of Purpose:
      The code creates the legal framework for commercial signage regulations that is intended to facilitate an easy and agreeable communication between people. It recognizes the need for well maintained and attractive appearance in a community and the need for adequate business identification and advertising and communication. This code recognizes that aesthetics and design quality cannot be satisfactorily legislated as individual opinions vary and general public opinions vary from one era to another. It is recognized, however, that a great percentage of that which is unattractive can be eliminated by sensible quality control, through adequate maintenance and inspection and by reasonable guidelines formulated to minimize clutter.
      Section 2.2 provides in pertinent part:
      In summary this Code is designed to prevent a vast majority of those things which are undesirable in commercial signage without hampering the inherent right of business to communicate reasonably, to advertise and to reasonably assist a potential customer to conveniently locate and identify any product, good, service, or facility which he may desire to use or purchase at any given time.