text:
    Charles TUCKER v. STATE of Alabama.
    6 Div. 513.
    Court of Criminal Appeals of Alabama.
    April 21, 1981.

      Marion F. Walker, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

The three count indictment charged Charles Tucker with the unlawful sale of prohibited liquor contrary to the Alabama statute.. The cause was tried before the Circuit Judge who found the appellant “guilty as charged” and assessed a fine of five hundred dollars and costs. In addition, the trial court sentenced the appellant to one year in the county jail, which sentence was suspended and the appellant placed on probation for two years on the condition that he not sell or be convicted of any liquor law violations within the said two year period.

William T. Dickson, an ABC agent from Tuscumbia, was working undercover with ABC Agent Fray Tyra and Deputy Sheriff Frederick in Marion County March 10-11, 1980. Mr. Dickson testified that he had been shown photographs of the appellant and directed to attempt to make a purchase by driving to the Tucker residence in Marion County. As directed, on March 11, 1980, Dickson purchased a six pack of Miller beer from Charles Tucker at his residence and made a positive in court identification of Tucker. Agent Dickson then drove to an agreed meeting place with Agent Fray Tyra where he delivered the six pack, which they then took to the sheriff’s office, where the same was kept pending trial.

Agent Tyra testified that he had shown photographs of the appellant to Agent Dickson and shown him the location of the Tucker residence prior to March 11, 1980. Agent Tyra corroborated Agent Dickson’s testimony concerning the purchase of the beer and the taking of same to Deputy Jimmy Frederick on March 11, 1980 following the purchase.

Deputy Sheriff Jimmy Frederick identified the six pack of Miller beer which had been in his possession since delivery by the two ABC agents on March 11, 1980, and identified the contents as Miller beer in open court.

The appellant took the stand and denied ever having seen Agent Dickson or making the sale to him on March 11, 1980, or any other time, and stated that he was not at home on the date in question.

I

The appellant asserts that the trial court committed reversible error in not granting him a trial by jury in this cause. The record discloses no request or other written motion anywhere within the transcript, except that on the date of the trial, November 19, 1980, appellant’s counsel made a motion in open court for a jury trial and stated that the applicable provisions of Alabama law concerning trial without a jury in misdemeanor cases was “unconstitutional”.

The offense in question is governed by the provisions of § 15-14-30, Code of Alabama 1975, which reads as follows:

“In all misdemeanor cases in the circuit court, the issues and questions of fact shall be tried by the judge of the court without the intervention of a jury except in cases where a trial by jury is demanded in writing by the defendant. Such written demand shall be filed in the case with the clerk of the court on or before the first sounding of the case if the case is sounded within 30 days after the defendant has been arrested or taken into custody after the finding óf the indictment, or, within 30 days after the defendant has appealed if the case is brought to the circuit court by appeal; and, if such case is not sounded within 30 days after the defendant has appealed, been arrested or been taken into custody after the finding of the indictment, then such written demand must be filed with the clerk within 30 days after the defendant has appealed, or been arrested or taken into custody after the finding of the indictment. A failure to demand in writing a trial by jury as provided in this section shall be held and deemed to be a waiver by the defendant of a trial by jury. (Acts 1915, No. 820, p. 939; Code 1923, § 8598; Code 1940, T. 15, § 321.)”

As may be seen the above Code Section requires that a demand in writing be filed with the circuit court within thirty days of the appellant’s arrest or being taken into custody, following indictment or within thirty days after the appellant has appealed his case from inferior court to circuit court. No such demand appears anywhere in the record in this cause. Thus, the trial court was correct in trying this cause without a jury. Matthews v. State, 23 Ala.App. 330, 125 So. 200 (1929). See also Jones v. State, 27 Ala.App. 306, 171 So. 759 (1936); and Holloway v. State, 38 Ala. App. 501, 88 So.2d 700 (1956).

II

Appellant next asserts that the trial court committed error in denying his motion made in open court just prior to trial that he not be required to sit at counsel table, but on the contrary be permitted to sit elsewhere within the courtroom, because his presence at counsel table would aid the state’s witnesses in his identification at trial. This precise issue was decided by McCullough v. State, 40 Ala.App. 309, 113 So.2d 905, cert. denied, 269 Ala. 698, 113 So.2d 912 (1959). In McCullough, Judge Cates quoted from 23 C.J.S. Criminal Law § 976, and then offered the comment shown following the quote below:

“The place where the accused shall sit during the trial is within the discretion of the court. Generally, his proper place is behind the bar in the prisoner’s dock if he is in custody, and near his counsel within the bar if he is on bail. It has also been held, however, that in either case he has the right to sit by his counsel during the trial.”
“As a general rule, during his trial, one indicted for a felony has, with respect to his seating in the courtroom, three basic rights: (1) To be present at all stages of the trial; (2) to be confronted with, and hence be able to hear, the witnesses against him, and (3) the right of counsel which includes free access to his attorney.” (Footnotes omitted).

There is no error in the trial court’s ruling on this motion.

Ill

Finally, appellant’s counsel asserts that the identification by Agent Dickson in court should be suppressed because counsel did not have an opportunity to examine certain photographs which Agent Tyra had allegedly shown to Agent Dickson before Dickson went to the Tucker residence and made the purchase of the beer in question.

It is true that appellant’s counsel filed a pretrial motion to compel disclosure, but such motion simply stated, “8. Photographs taken in connection with this case.”

There were no photographs introduced in evidence in this case and for aught that appears in this record, none were taken at the scene or subsequently. No issue was made of this at trial, rather, Agent Dickson made a positive in court identification of appellant based upon his observation of the appellant at the time he made the purchase of the Miller beer at Tucker’s residence.

Where as here the identification of the appellant has a source independent of any photographs which may have been used in the identification process, then no error is shown by not requiring the production of the photographs used prior to the purchase to aid the state’s witness in his identification of the appellant.

We have carefully considered the totality of the circumstances shown in this record, as required by Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) and are clear as to the conclusion that no error is shown with reference to the in court identification of the appellant. Childers v. State, Ala.Cr.App., 339 So.2d 597, cert. denied, Ala., 339 So.2d 601 (1976); Lomax v. State, Ala.Cr.App., 359 So.2d 832, cert. denied, Ala., 359 So.2d 836 (1978) and authorities therein cited.

We have examined this record and find no error. The judgment of the trial court is therefore affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: TYSON, Judge.

license: Public Domain

text:
    Harold Leroy LYNER v. STATE.
    7 Div. 804.
    Court of Criminal Appeals of Alabama.
    April 21, 1981.
    L. Gilbert Kendrick, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and Mar-da J. Walters, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

The appellant was indicted and convicted for the offense of first degree rape under Ala.Code § 13A-6-61 (Supp.1977). Upon determination that appellant was a recidivist under Alabama Code § 13A-5-9(c)(3) (Supp.1979), the trial court fixed his punishment at life imprisonment without parole.

The state’s evidence was sufficient to prove beyond any reasonable doubt that appellant was guilty as charged under Section 13A-6-61(a)(3). The sufficiency of the evidence is nowhere questioned. The testimony presented by the state clearly established that the appellant abducted the eight year old prosecutrix and eluded his pursuers for a sufficient period of time in which to accomplish his purpose with the child. The overwhelming nature of the state’s evidence eliminates the necessity to narrate the precise details of this occurrence. There was ample evidence to support the jury’s verdict which was fully justified in this case.

The only questions raised on this appeal concern the Alabama Habitual Offender Statute. The Alabama Habitual Felony Offender Statute has been clearly determined to be constitutional. Williams v. State, 393 So.2d 492 (Ala.Cr.App.1981); Watson v. State, 392 So.2d 1274 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1280 (Ala.1981); Smith v. State, 392 So.2d 1273 (Ala.Cr.App. 1980).

It was conclusively shown at appellant’s sentencing hearing that appellant had pled guilty in the Talladega County Circuit Court to four separate felonies on January 22, 1979, and was sentenced to a term of imprisonment in each case. Two of these guilty pleas were based upon indictments for rape and two were for kidnapping. These prior convictions were proved by the introduction of a certified copy of the minute entry in each case. Highsmith v. State, 55 Ala.App. 272, 314 So.2d 874 (1975). The certified minute entries demonstrated that appellant was represented by counsel in each case and was advised of his constitutional rights in each case before pleading guilty. There was no objection to the admission of the certified minute entries in those four cases. The consideration of these guilty pleas by the appellant and use of these convictions were proper. Watson, supra.

In addition, appellant testified at his sentencing hearing that he had been convicted of carnal knowledge of a girl under twelve years of age on September 20, 1968 in the Coosa County Circuit Court. Before so testifying, appellant had objected to the introduction of a certified copy of the minute entry in that case as being “ex post facto.” There is no merit to this contention of the appellant. Smith, supra.

In summary, we find that the trial court complied fully with the requirements of Rule 6 of the Alabama Rules of Criminal Procedure Temporary Rules in sentencing appellant to life imprisonment without parole. The consideration of appellant’s testimony was proper. We have searched the record and found no error. The appellant’s conviction is, therefore, due to be affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Ronnie Carl NELSON v. STATE.
    8 Div. 415.
    Court of Criminal Appeals of Alabama.
    April 21, 1981.

      Rodney B. Slusher, Florence, for appellant.
    Charles A. Graddick, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was indicted and convicted for conspiracy to commit arson in the second degree. Alabama Code 1975, Section 13A-4-3 and Section 13A-7-42. Sentence was five years’ imprisonment; one year to be served in the county jail, the remainder of the sentence suspended and the defendant placed on probation.

I

The defendant argues that the trial court erred in admitting his confession into evidence because “it was made while appellant was under the influence of drugs and was induced by the belief that he was being framed by the hope of favor if he cooperated with the investigating officers.”

A.

The evidence in this case does not show that the defendant was “so far dethroned that he was unable to understand the effect of what he was saying or to give a true account of his actions with respect to the alleged crimes” when he made his confession. C. Gamble, McElroy’s Alabama Evidence, Section 200.14(2) (3rd ed. 1977). McElroy contains an accurate and concise summary of the rules regarding the admission of a confession by an accused who is under the influence of narcotics or drugs.

“The general rule is that a confession is not to be excluded even if the defendant was under the influence of drugs at the time he made it. Where the evidence fails to show that, at the time of making the confession, the defendant did not have mental capacity to know and remember the matters and happenings he then narrated, the confession is not inadmissible because he was addicted to narcotics. The fact that the accused was under the influence of drugs, however, is to be considered, along with other factors, in determining whether his confession was voluntary.”

McElroy, Section 200.14(4).

Detective Doug Aycock of the Sheffield Police Department testified that when he first saw the defendant he appeared “all right”. Later in the day the defendant became “quite shooken” and “shook up”. Aycock stated that the defendant “was nervous and he became real nervous. I couldn’t really say he appeared to be high.”

During the interrogation of the defendant by Detective Aycock the following occurred:

“A. (Defendant): Because I’ve been strung out all my life. I ain’t never quit taking drugs. I have nightmares at night. I am serious.
“Q. (Detective Aycock): You’re okay right now, though, aren’t you? I mean as far as your mind?
“A. I’m high.
“Q. Your mind is all right, though, isn’t it? You know what you’re talking about. You’re telling the truth, right?
“A. Yes, sir.”

In considering the totality of the circumstances surrounding the confession, we have listened to the tape recording of the confession itself. Although there is evidence that the defendant had taken some drugs before he made his statement, our review convinces us that there was substantial evidence fairly capable of supporting the inference that the statement was voluntarily and intelligently given. Therefore we find no abuse by the trial court in admitting the confession over this objection. Bufford v. State, 382 So.2d 1162 (Ala.Cr.App.), cert. denied, 382 So.2d 1175 (Ala.1980).

B.

The defendant testified, not at the hearing to determine the voluntariness of the confession but in his own defense, that his confession was induced by the belief that he was being framed. There was evidence that the confession was given freely, without any coercion of any type or any inducement or any hope of reward. Even where there is credible evidence to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and voluntariness were observed, the ruling of the trial judge must be given great weight and need only be supported by substantial evidence and not to a moral certainty. Joshua v. State, 372 So.2d 885, 890 (Ala.Cr.App.), cert, denied, Ex parte Joshua, 372 So.2d 891 (Ala.1979).

C.

Before the confession was tape recorded, the defendant asked Detective Ay-cock for “help”. Aycock testified:

“(W)hen he (defendant) first came to me, he said, I want to tell you what happened. I want to clear it up, and I want you to help me.”
$ * jJs * *
“And at the time, I took him to be meaning that he was talking about the case when he said I need help. I told him that I didn’t know what I could do. I would talk to the D.A., which I did, and later on, I got the opinion he was talking about not only the case, but the drug problem, too.”
“I told him I would talk to the District Attorney about trying to help him.”
* * * * *
“I told him if he wanted to tell us his part, that I couldn’t promise him anything, but if he could help us I would talk to the District Attorney about helping him.”
* * * * * *
“(A)nd if he would help us and probably testify against — give us information who all was involved, I would try to help him
* SjC ifc * * *
“I didn’t ever tell him I would. I said, I’m going to try. I can’t promise you anything. I don’t have authority to promise you anything.”

During the confession, the defendant stated that he wanted to “get off drugs” and Detective Aycock responded, “Well, I don’t know what we can do, but we’ll do what we can. We will make contacts for you, call the Mental Health Center or somebody

The defendant’s confession must be placed in its proper perspective. On two occasions, the defendant refused to make any statement to Detective Aycock. Then, without any inducement or solicitation from Aycock, the defendant, who had been arrested and released on bail, telephoned Detective Aycock and arranged to meet him.

“(H)e (defendant) called me (Aycock) on the phone, ... and said he wanted to talk to me. I told him to come to the station. He came up to the station, stated to me he wanted to clear up everything and he wanted to tell me what happened, could we help him. I told him I wasn’t in a position to tell him if we could or could not.”

Clearly the defendant’s statement was not “extracted”; it was not obtained by any direct or implied promises, however slight. “(A) confession is not rendered involuntary by a promise of benefit that was solicited freely and voluntarily by the accused.” Hakes v. State, 387 So.2d 855, 860 (Ala.Cr. App.1978).

In conclusion, we find that the admission of the confession was not a violation of the defendant’s right against self-incrimination under either the federal or state constitutions.

II

The defendant also contends that the confession was admitted into evidence in violation of his constitutional right to counsel. He argues that “once a criminal defendant has retained an attorney any statement obtained from him may not be offered into evidence for any purpose unless the accused’s attorney was notified and given a reasonable opportunity to be present.”

Although Detective Aycock knew that the defendant had retained counsel and Ay-cock had been told by counsel not to talk to the defendant, this is not simply another factual situation controlled by Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). Here the defendant, who was out on bond and not in custody, at least for purposes of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), voluntarily initiated the interrogation and the taking of his statement by telephoning Detective Aycock and then by coming to the police station of his own volition. This is clear from the beginning of the recorded confession where, after the defendant had been advised of his Miranda rights and stated that he understood them, the following occurred:

“Q. Now, Ronnie, your attorney, Mr. Holt, told me not to talk to you. You came to me this morning on your free will, is that right?
“A. That’s right.
“Q. You came to my office and called me and said you wanted to see me?
“A. Yes.
“Q. I haven’t asked you to talk to me? “A. Yes, that’s right.
“Q. Do you mind signing this right here, Ronnie?
“A. What?
“Q. Saying you understood what I read to you.
“A. All right. I’m going to tell you what happened, and then I’m going to get me a lawyer.”

The fact that a defendant has an attorney does not mean, as a per se rule, that law enforcement officials cannot procure a statement of any kind from the defendant without prior notice to, and the consent of, his attorney. Thompson v. State, 347 So.2d 1371 (Ala.Cr.App.), cert. denied, 347 So.2d 1377 (Ala.1977). There is absolutely no evidence that any officer willfully or by subterfuge even attempted to violate the request of defendant’s counsel. Alexander v. State, 370 So.2d 330 (Ala.Cr. App.), cert. denied, 370 So.2d 332 (Ala.1979). The defendant was aware of his right to counsel and also knew that his retained counsel had told Detective Aycock not to question him. He voluntarily and knowingly waived his right to counsel. His confession was properly admitted into evidence.

Ill

The defendant further argues for a reversal of his conviction on the ground that a portion of his statement related to a subsequent fire for which he was not indicted.

The defendant was charged with:

“agree(ing) with Ann Morrow and John David Sauls to commit the crime of Arson 2nd Degree with the intent that conduct constituting said offense be performed and that John David Sauls did intentionally damage a building of Ann Morrow, by starting or maintaining a fire or causing an explosion, in furtherance of said crime.”

On January 20, 1980, the Sheffield Fire Department was involved in two fires at the Furniture Barn. The fires were approximately twelve hours apart.

State’s witness John Sauls testified that he set the first fire at the defendant’s request. This fire was unsuccessful and did not do a great amount of damage to the building itself although the sprinkler system caused quite a bit of water damage to the furniture inside the building. Sauls also testified that the defendant had been hired to burn the building so someone could collect the insurance and “something was said about the lady that ran the Furniture Barn.” Other evidence revealed that Ann Morrow was the owner of the business.

In his confession the defendant stated that he had nothing to do with the first fire. He admitted that, at the request of Ann Morrow and Diane Best, he did get Sauls to burn the building and that Sauls did in fact burn the building.

In this prosecution evidence of both fires was clearly admissible.

“Evidence of other fires is not admissible where accused is not shown to be connected with the other burnings, or unless it tends to connect accused with the crime for which he is on trial, or to show that such fires, with that in question, were part of one connected scheme, purpose, or course of conduct of accused, or of a continuing offense, or that the fire in question was of incendiary origin and not accidental; or unless, together with the other evidence, it tends to show intent, guilty knowledge, motive, malice, or identity.
“Likewise a previous attempt to burn a building, including the building involved in the crime charged, may be shown if the circumstances tend to implicate accused; and evidence tending to show that the prisoner, after the fire in question, attempted to burn the same building, is admissible as evidence of the identity of the author of the first fire, in that it indicates a renewal of the purpose which was frustrated by the extinguishment of the first fire.”
22A C.J.S. Criminal Law, Section 691(3) (1961).

See also Martin v. State, 28 Ala. 71 (1856); Moreland v. State, 373 So.2d 1259 (Ala.Cr. App.1979).

IV

The defendant argues that reversible error occurred during the closing argument when the prosecutor stated that the defendant was guilty of arson. From the record:

“MR. SLUSHER (Defense Counsel): I am going to object to that line of argument of him being guilty of arson as being prejudicial. He is not charged with arson.
“THE COURT: Just argue what he is charged with.
“MR. SLUSHER: I would like to move for a mistrial. We think—
“THE COURT: Overruled.”

From the record we cannot tell exactly what the prosecutor actually stated and the context in which it was said. The trial judge was in a much better position to judge the nature of the remark and its propriety. After considering all the evidence in this case we do not see how the alleged remark, even if made as alleged, could have prejudiced the defendant. A.R. A.P., Rule 45.

V

The defendant argues “that the court’s oral charge did not adequately and fairly state the principles of law affecting all aspects of the case, and in particular, the law relating to conspiracy.” The defendant does not specify which of his forty-one requested charges were improperly refused.

A review reveals that the oral charge of the trial court fairly and substantially, though briefly, covered the elements of the offense of conspiracy. We find no error in the refusal of the requested charges.

We have searched the record and found no error prejudicial to the substantial rights of the defendant. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: ALDERMAN, Justice. ENGLAND, Justice, ADKINS, Justice,

text:
    W. R. TOLAR, Petitioner, v. The SCHOOL BOARD OF LIBERTY COUNTY, Florida, a body corporate, Respondent.
    No. 55623.
    Supreme Court of Florida.
    March 26, 1981.
    Rehearing Denied June 11, 1981.
    Robert J. Vossler, Tallahassee, for petitioner.
    Clinton E. Foster, Panama City, for respondent.
   ALDERMAN, Justice.

We have for review the decision of the District Court of Appeal, First District, in Tolar v. School Board of Liberty County, 363 So.2d 144 (Fla. 1st DCA 1978), which allegedly conflicts with Town of Palm Beach v. Gradison, 296 So.2d 473 (Fla.1974). The issue before us is whether section 286.-011(1), Florida Statutes (1975), commonly known as the “Sunshine Law,” requires that otherwise proper formal action of a public body be invalidated because the subject matter of that formal public action was discussed at a prior unannounced meeting. The district court held that invalidation of the proper formal action was not required, and we agree.

Tolar was employed by the School Board as director of administration. On at least two occasions in November and December of 1976, the superintendent-elect of schools in Liberty County met privately with some or all of the School Board members to discuss ideas on reorganization. Included in these discussions was the topic of removal of Tolar and the abolition of his position. On January 4, 1977, at an open formal meeting, the School Board members voted to abolish the position of director of administration and to transfer Tolar to Bristol Elementary School. At this open meeting, Tolar was present and given full opportunity to express his views.

Tolar then sought injunctive relief pursuant to section 286.011(2), seeking to have the School Board’s final action set aside as void because, he alleged, it violated the sunshine law.

Tolar’s motion for summary judgment was denied, and he appealed to the district court, which affirmed. The district court acknowledged that the initial discussions in secret were a technical violation of the sunshine law, but, relying on our decision in Bassett v. Braddock, 262 So.2d 425 (Fla. 1972), it held that the subsequent Board action at a public meeting should not be disturbed because “[h]ere the Board members were at liberty to abolish the position of director of administration by voice vote at a public meeting. Tolar was given both notice of the meeting and an opportunity to express his views prior to the vote.” Tolar v. The School Board of Liberty County, 363 So.2d at 146.

Section 286.011 provides that the meetings of the Board at which official acts are to be taken must be public. The intent of the act is to cover any gathering of the members of the Board where the members deal with some matter on which foreseeable action will be taken by the Board. Board of Public Instruction v. Doran, 224 So.2d 693 (Fla.1969). We agree with the district court that the discussions between the superintendent-elect and the Board members at her home and the home of a board member were violative of section 286.011. By the express terms of section 286.011, any resolution, rule, regulation, or formal action taken at these secret meetings would not be binding.

Tolar relies primarily on Town of Palm Beach v. Gradison to support his position that the Board’s action in abolishing his position should be voided. In Gradison, the citizen’s planning committee which conducted its activities at nonpublic meetings was instrumental in the formulation of the comprehensive zoning plan which was perfunctorily adopted as a zoning ordinance by the town council at a public meeting. We held that this citizen’s planning committee, which was chosen by the town council at a nonpublic administrative meeting, reached the status of a board or commission that, to act legally, must comply with the sunshine law. We further found that zoning ordinance, which was a summary approval of the recommendation of the planning committed culminating from its numerous and detailed secret meetings, was void ab initio. The formal action in Gradison was merely the crystallization of secret decisions.

In Gradison, we said:

The statute should be construed so as to frustrate all evasive devices. This can be accomplished only by embracing the collective inquiry and discussion stages within the terms of the statute, as long as such inquiry and discussion is conducted by any committee or other authority appointed and established by a governmental agency, and relates to any matter which foreseeable action will be taken.

296 So.2d at 477. This holding does not mean, however, that public final action of the Board will always be void and incurable merely because the topic of the final public action was previously discussed at a private meeting. Here the School Board held a public meeting and permitted discussion on the abolishing of the position of director of administration and, then by voice vote at a public meeting, decided to abolish this position. This action taken in the sunshine will not now be voided.

Subsequent to Gradison, in Occidental Chemical Co. v. Mayo, 351 So.2d 336 (Fla. 1977), we were asked to determine whether the public service commission had violated the sunshine law in making its decision. A 22V2 page staff report was adopted essentially verbatim by the public service commission in its 27*/2 page report. Occidental argued that all meetings between the commissioners and their staff should be open to the public and that, since the agenda conference lasted only ninety minutes and resulted in adoption of the prepared staff proposal, the commissioners either met in private to reach a consensus or delegated their decision-making responsibility. We stated that the sunshine law required public meetings whenever the commission takes “official acts” and that it invalidates “formal action” taken in private. Upholding the commission’s action, we declared that the sunshine law is satisfied if the commissioners reached a mutual decision on rate matters when they met together in public for their “formal action.” We held that Town of Palm Beach v. Gradison was not controlling and distinguished it on the basis that the town council merely gave summary approval to the citizens planning committee’s recommendations in a purely ceremonial public meeting.

The present case is likewise not controlled by Gradison because here the Board took independent, final action in the sunshine in voting to abolish the position. The Board’s action was not merely a ceremonial acceptance of secret actions and was not merely a perfunctory ratification of secret decisions at a later meeting open to the public. Rather, the Board’s action was a decision made in the “sunshine” to abolish Tolar’s position. This case is more akin to Bassett v. Braddock wherein we were confronted on a cross-appeal with the question of whether the election of the chairman and vice-chairman of the Dade County School Board was valid under the particular circumstances. Although initially the election was held by secret ballot, it was later conducted by motion and vote in open meeting. We held that: “In this particular instance, any initial violation by secret written ballot was cured and rendered ‘sunshine bright’ by the corrective open, public vote which followed.” 262 So.2d at 428-29.

Accordingly, having determined that the district court properly held that the Board’s decision should not be disturbed, we approve its decision.

It is so ordered.

BOYD, OVERTON, ENGLAND and Mc-DONALD, JJ., concur.

ENGLAND, J., concurs with an opinion, with which OVERTON and McDONALD, JJ., concur.

ADKINS, J., dissents with an opinion, with which SUNDBERG, C. J., concurs.

ENGLAND, Justice,

concurring.

Justice Adkins remains the strong judicial voice in Florida in support of an unadulterated Sunshine Law, and it is difficult indeed to disagree with the principles he so articulately advances. I do so here, however, cautiously, out of a belief that he has overcharacterized the private meetings involved in this, ease by calling them “secret sessions” of the board, and that the ostensible reach of his characterization would bar all private communications with and among public officials on a collegial body.

The record before us does not indicate that the superintendent-elect of Liberty County convened the school board expressly to discuss abolition of the position Tolar held as director of administration or to transfer Tolar to Bristol Elementary School. The record does show that she met with some commissioners, admittedly in private, to discuss idéas she hoped, as superintendent, to implement for a reorganization of the school system. To the extent that Justice Adkins implies that a public official cannot communicate ideas to her supervisory board except by convening or attending a public meeting, I must respectfully disagree and suggest that there is no legislative history to indicate that the public meetings law was designed to so restrict public officials in the performance of their duties.

OVERTON and McDONALD, JJ., concur.

ADKINS, Justice,

dissenting.

My colleagues say that the formal and public action the Board took in abolishing the position of Director of Administration was not void under the circumstances of the case even though the subject of abolishing the position of Director of Administration was discussed by members of the School Board in a nonpublic meeting. In Turk v. Richard, 47 So.2d 543 (Fla.1950), the question was what the legislature meant by the words “all meetings” when it enacted a statute requiring that all meetings of any city or town council should be held open to the public of any such city or town. The Court held that the term “all meetings” referred only to such formal assemblages of the council sitting as a joint deliberative body as were required or authorized by law to be held for the transaction of official municipal business. The Court said that at no other type of gathering, whether attended by all or only some of the members of the city council, could any formal action be taken or agreement be made that could officially bind the municipal corporation or the individual members of the council. Hence, the Court said that such a gathering would not constitute a “meeting” of the council. “Executive sessions” or “secret meetings” were permitted so long as formal action was taken at a public meeting.

After this decision, the present Sunshine Law was enacted. We have held that the obvious intent of the Sunshine Law was enacted. We have held that the obvious intent of the Sunshine Law was to cover any gathering of the members where the members deal with some matter on which foreseeable action will be taken by a board. Board of Public Instruction of Broward County v. Doran, 224 So.2d 693, 699 (Fla. 1969). In Doran we said:

The right of the public to be present and to be heard during all phases of enactments by boards and commissions is a source of strength in our country. During past years tendencies toward secrecy in public affairs have been the subject of extensive criticism. Terms such as managed news, secret meetings, closed records, executive sessions, and study sessions have become synonymous with “hanky panky” in the minds of public-spirited citizens. One purpose of the Sunshine Law was to maintain the faith of the public in governmental agencies. Regardless of their good intentions, these specified boards and commissions, through devious ways, should not be allowed to deprive the public of this inalienable right to be present and to be heard at all deliberations wherein decisions affecting the public are being made.

It is the law’s intent that any meeting, relating to any matter on which foreseeable action will be taken, occur openly and publicly. An informal conference or caucus of any two or more members permits crystallization of secret decisions to a point just short of ceremonial acceptance. This should be prohibited. The statute was enacted for the public benefit and should be construed liberally so as to block evasive techniques. City of Miami Beach v. Berns, 245 So.2d 38 (Fla.1971).

The School Board relies upon Bassett v. Braddock, 262 So.2d 425 (Fla.1972), where we held that labor negotiators employed by the School Board in preliminary or tentative teacher contract negotiations with teachers’ representatives may negotiate outside of public meetings without being in violation of the Sunshine Law. Article I, section 6, of the Florida Constitution provides that “the right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged.” This exception was carved into the Sunshine Law by virtue of this constitutional provision.

In Bassett v. Braddock we allowed the selection of a chairman by secret ballot followed by formal action at a public meeting. The selection of a presiding officer or chairman by an administrative body has little effect upon the public and requires a bare minimum, if any, input from the public. The selection of a chairman is certainly not in the same category as abolishing a position in the school system or enacting an ordinance that will have a direct effect on the public.

Our decision in Occidental Chemical Co. v. Mayo, 351 So.2d 336 (Fla.1977), does not sustain the reasoning of the majority, for the Court said:

Occidental argues, more narrowly, that because the agenda conference lasted only 90 minutes and resulted in adoption of the pre-prepared staff proposal, the commissioners either met in private to reach a consensus or delegated their decision-making responsibility to staff. Admittedly, the adoption of a multi-page decision document at the end of a complex rate case, with minimal pertinent discussion, creates an appearance of prejudgment. There is, of course, no evidence in this record that the commissioners met in secret or used staff members as intermediaries in order to circumvent public meeting requirements.. ..
We cannot indulge in speculation as to what did or did not occur with respect to matters contained in the 22lh page partial order prepared prior to the agenda conference. So far as the record shows, the commissioners did not discuss various points among themselves before making a final decision.

Id. at 341-42 (emphasis added, footnote omitted).

In a footnote, the Court said:

The members of a collegial administrative body are not obliged to avoid their staff during the evaluation and consideration stages of their deliberations. Were this so, the value of staff expertise would be lost and the intelligent use of employees would be crippled. This case does not present a proper occasion, however, for us to determine whether all private collegial discussions among commissioners become decision-making acts which must occur in public. See Times Publishing Co. v. Williams, 222 So.2d 470 (Fla.2d DCA 1969), suggesting that all deliberative discussions among commissioners are within the act, and contrast Town of Palm Beach v. Gradison, 296 So.2d 473 (Fla.1974), condemning pre-meeting agreements which have the effect of rendering later meetings a “ceremonial sham”.

Id. at 342 n. 10.

In Town of Palm Beach v. Gradison, 296 So.2d 473 (Fla.1974), this Court held that a citizens’ planning committee composed of private citizens, established by the town council, which appointed the members, was subject to the Government in the Sunshine Law. The purpose of the committee was to guide a planning firm whose services had been contracted for by the council and the firm’s production of an updated zoning plan for the town. Numerous meetings between the committee and the planners took place, none of which went to the public. Upon presentation of the plan to the council, full public meetings and hearings were conducted and proper procedure followed. The comprehensive zoning plan was approved in essentially the same form as that which had been produced by the planners and the committee. The Court found the committee to be an arm of the town council and declared a subordinate group or committee selected by governmental authorities should not feel free to meet in private. The zoning ordinance adopted by the town council after public hearing was rendered invalid because of the nonpublic activities of the planning committee.

In Wolfson v. State, 344 So.2d 611 (Fla.2d DCA 1977), an indictment charging a violation of the Sunshine Law alleged that certain city commissioners participated in a meeting which was not open to the public and considered matters pertaining to the employment of a city attorney. The indictment was held sufficient to charge a violation of the Sunshine Law.

Every step in the decision-making process, including the decision itself, is a necessary preliminary to formal action. It follows that each such step constitutes an “official act”, an indispensable requisite to “formal action”, within the meaning of the Sunshine Law.

The Sunshine Law contemplates that every meeting of the Board should be a market place of ideas so that the governmental agency may have sufficient input from the citizens who are going to be affected by the subsequent action of the Board. Government can be responsive to the wishes of the governed only if there is some citizen input. Open meetings produce stability and public confidence in government and, when they are reported by the news media, those citizens who are unable to attend will become aware of governmental abuses. Open meetings give the public an opportunity to better evaluate its officials and projects by being privy to the decision-making process. It gives the public an opportunity to vote intelligently on retaining officials, restruc-taring their offices, and approving or rejecting their projects. See Krause v. Reno, 366 So.2d 1244 (Fla.3d DCA 1979).

The important question is not whether a formal meeting was held, but whether the members of the Board had a nonpublic meeting dealing with any matters on which foreseeable actions might be taken. This Court should never place the stamp of approval on individual gatherings wherein public officials, regardless of good intentions, reach decisions in private on matters which may foreseeably effect the public. It is elementary that the officials can not do indirectly what they are prevented from doing directly.

Under the reasoning of the majority, any board or commission could have informal meetings in which each member could commit himself to some matter on which foreseeable action will be taken. This could be done in the absence of the public and without giving the public an opportunity to be heard. The ultimate action of the entire board in public meeting would merely be an affirmation of the various secret board meetings, so this would not be in violation of the Government in the Sunshine Law.

The bright rays of the sunshine law have not been dimmed, they have been obliterated. We now have to rely upon the good faith of public officials to continue public meetings and avoid the presumption of “hanky-panky” which flows from “secret sessions”.

The decision of the district court should be quashed.

SUNDBERG, C. J., concurs.

      . See, most recently, Occidental Chemical Co. v. Mayo, 351 So.2d 336, 343 (Fla.1977) (Adkins, J., dissenting).


author: PER CURIAM.

text:
    Robert Fieldmore LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 50851.
    Supreme Court of Florida.
    April 2, 1981.
    Rehearing Denied June 10, 1981.

      Theodore E. Mack, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This cause is before the Court on appeal of a judgment of the Circuit Court of the Fourth Judicial Circuit, Duval County. The appellant was convicted of the first-degree murder of Joseph Lynwood Richards and was sentenced to death. This Court has jurisdiction of the appeal. Art. V, § 3(b)(1), Fla.Const.

I. FACTS

On the night of January 27, 1976, Joseph Richards and two visitors were watching television in the bedroom of Richards’ home in Jacksonville. At approximately 9:40 P.M. two attackers simultaneously fired upon him from outside the bedroom window, using a .30-.30 rifle and a 12-gauge shotgun. Richards received multiple rifle and shotgun wounds and died instantly. Shortly afterwards, one of Richards’ friends called the police. Among the items of evidence gathered at the scene were several spent bullet casings and shotgun shells, recovered from the general area outside the window where the gunmen stood.

The principal evidence against appellant was the testimony of Charles Jimmy Carter. Originally indicted for first-degree murder, Carter was granted immunity from prosecution for his participation in the crime and identified appellant as one of the murderers.

Carter testified that appellant and Eddie Odom asked him to help them kill Richards by driving a van, to be supplied by appellant, to Richards’ home. They also borrowed a 12-gauge shotgun from him, and he testified that this shotgun was one of the murder weapons. According to Carter’s testimony, he drove a bright pink Chevrolet van to Richards’ house, where Odom, carrying a rifle, and appellant, carrying the shotgun, got out and walked up to the house. A few minutes later, Carter said, he heard the shots and the two men came running back to the van and got in. Carter testified that as they were riding away from the scene, appellant said he could not directly see the victim’s head but he shot through the headboard of Richards’ bed, aiming at the point where he thought the man’s head would be judging from the position of his body on the bed.

Carter testified that he then drove the van to the Main Street bridge over the Trout River. From the bridge, Odom and appellant Lewis threw their gloves and shoes in the river and Carter threw the rifle in. Carter then took Odom home and then drove himself home. Carter took the shotgun home with him and appellant drove away in the van.

Carter testified that Joseph Richards had threatened appellant’s life because of a dispute over money. Appellant denied that he owned Richards any money and had in turn threatened Richards’ life. There was testimony from other witnesses also about appellant’s ill will toward Richards.

Carter testified that in addition to receiving immunity from prosecution for his participation in the murder, he also received, in exchange for his agreement to tell what he knew, a reduction of a previously imposed five-year sentence for a separate offense to one year; an agreement not to prosecute him on a charge that arose out of a fight; and an agreement by officials to try to get a reduction in a term of parole he had been serving.

With information obtained from Carter, the police recovered the rifle and the shotgun. Three spent .30-.30 cartridge casings were recovered from the scene. From the rifle retrieved from the river another spent casing and a live bullet were recovered. A firearms examiner testified that the casings recovered at the scene and the one found in the rifle were all discharged in the same weapon. Therefore, although because of corrosion in the rifle he was unable to positively say that the recovered rifle was that weapon, the inference that it was the murder weapon was strong. The examiner also testified that he concluded that the shotgun shells found at the scene were fired by the shotgun identified by Carter as the one he supplied to appellant.

During the period of time surrounding the murder, appellant was living at his parents’ home and a seventeen-year-old girl was living there with him. The girl testified at trial that shortly after 10:00 P.M. on the night of January 27, 1976, appellant arrived home, changed clothes, and instructed her and his mother to dispose of the clothes he had been wearing. He also told them, she said, to tell anyone who might ask that he had been at home all evening. The girl testified that he also told her that now he would not have to worry about Joe Richards slapping his face anymore.

II. ISSUES ON APPEAL OF THE JUDGMENT OF CONVICTION

Appellant contends that the evidence was insufficient to support the jury’s verdict of guilty of murder in the first degree. He argues that the only evidence of his participation in the crime was the uncorroborated testimony of Carter. He argues that the testimony of Carter, who participated in the murder, was inherently unreliable when seen in light of his immunity agreement and the other benefits afforded him by the state. We find this contention to be without merit. The testimony of Carter, even though he was an accomplice, was competent evidence which the jury could consider, according it such value as they might find it to have. That Carter had direct knowledge of the crime was demonstrated by his directing police to the murder weapons. His testimony that appellant was one of the perpetrators was corroborated by the testimony of appellant’s teenage girlfriend as to his activities and statements on the night of the murder. We conclude that there was competent, substantial evidence upon which the jury could reasonably base a conclusion that appellant’s guilt was proved beyond a reasonable doubt.

Appellant contends that the trial court erred in the way it handled a request by the jury to listen to some trial testimony a second time. The trial transcript reveals that the following took place when the jury was preparing to begin deliberating:

THE COURT: ...
Okay. Mr. Foreman, we hand these to you, and you may now retire to deliberate . on your verdict, and the evidence will be brought to you in one moment.
JUROR SHEPHERD: One thing. Is there any way that we can get the testimony of any of the various witnesses?
THE COURT: You mean read back?
JUROR SHEPHERD: Yes.
THE COURT: All of it?
JUROR SHEPHERD: No, not all of it, but some of it.
THE COURT: You start deliberating and then decide what you need and then I’ll have to rule upon it at that time. (Jury retired to deliberate at approximately 5:07 o’clock p. m., October 29, 1976.)

Trial transcript at 990-91. The transcript Shows that then, the following transpired:

(Jury buzzed at approximately 5:35 o’clock p. m., October 29, 1976).
THE COURT: As I understand, they have a question?
(Defendant present.)
THE COURT: Bring them out and just let them stand here and then we will decide what we’re going to do.
(Jury returned to courtroom at approximately 5:40 o’clock p. m., October 29, 1976.) (Jury present.)
THE COURT: Ladies and gentlemen of the jury, as I understand, you have a question?
FOREMAN CARSWELL: Yes, Your Honor. We’d like the use of a yardstick, a city map and the testimonies of several of the witnesses.
THE COURT: Well, indulge me just a moment.
(Counsel for the State and defendant approached the bench.)
THE COURT: Ladies and gentlemen of the jury, you are confined in your deliberations to those matters which are in evidence, and we cannot provide you— not that we don’t have them accessible— but we cannot provide you with a city map or a yardstick. Those matters are not in evidence and they will not be used by you in deliberating on your verdict.
As to testimony, do you know which ones you want, or do you want to go ahead and deliberate and then give me a list of all that you want, or — you have it there?
FOREMAN CARSWELL: Yes, sir.
THE COURT: All right. Tell me which ones they are.
FOREMAN CARSWELL: The sworn testimony of Jimmy Carter, Debbie Fur-man, Ann Robinson, Steve Carter, Mrs. Lewis, the rebuttal of Officer Japour and the testimony of Michael Riley.
THE COURT: Suppose you step back to your jury room and we will call you out in just a few moments. (Jury absent.)
THE COURT: Gentlemen, I heard the request. I will be happy to hear you on it. Keeping in mind that we have gone» through thirty-three witnesses and I guess it’s not unreasonable to — perhaps they forgot and they want to have their memory refreshed on some witnesses’ testimony.
What say you, Mr. Dempsey? It’s sort of — it cuts both ways. They sort of wanted to hear State’s — some of the State’s and some of yours.
MR. DEMPSEY: Your Honor, from what I understand, they’re asking for the testimony of about five witnesses, which is about a sixth of all the witnesses. I don’t have any objection to it.
THE COURT: Mr. DuBray?
MR. DuBRAY: I don’t have any, Your Honor.
THE COURT: All right, you gentlemen want to brace yourselves to go through this.
Mr. Alternate Juror, you will be listening to it, of course, also.
Maggie, how far—
REPORTER: Judge, it will take me a few minutes to go back through my notes and locate the witnesses and mark them.
THE COURT: Okay.
Are you ready now?
REPORTER: Yes, sir.
THE COURT: Bring out the jury. (July returned to courtroom at 6:00 o’clock p. m.) (Jury present.)
THE COURT: Now, ladies and gentlemen of the jury, Mr. Foreman, you asked for certain witnesses’ testimony. Did you have any particular preference in which you wish to hear them?
FOREMAN CARSWELL: Yes, Your Honor. I believe Jimmy Carter’s should be first.
THE COURT: Do you have that available?
REPORTER: Yes, sir.
THE COURT: Do you want Jimmy Carter first?
FOREMAN CARSWELL: Yes.
THE COURT: All right. Maggie, can you find that?
REPORTER: Yes, sir.
THE COURT: In talking with Maggie before you came out, we were looking at it and estimated that his testimony would take approximately an hour.
Is that correct, Maggie?
REPORTER: Yes, sir.
FOREMAN CARSWELL: Well, the thing I think we are most interested in is his activities prior to 8:00 o’clock on the alleged night.
THE COURT: Well, all we can do is have his testimony read. We can’t take just portions of it.
All right. Proceed, Maggie.
(Court Reporter reads the testimony of Charles Jimmy Carter, as it began on page 345 of this transcript, up to page 366, line 16.)
FOREMAN CARSWELL: Your Hon- or, we believe that’s enough of Jimmy Carter.
THE COURT: Gentlemen, step here. (Counsel for the State and defendant and court reporter approached the bench where the following proceedings were had out of the hearing of the jury:)
THE COURT: The jury has asked— stated that they’ve heard enough of the testimony of Mr. Carter. I’ve called the attorneys at bench and Mr. Dempsey feels as though he objects to reading just a portion and feels as though the entire portion of his testimony should be read because that’s only the direct examination of Mr. DuBray, and I’m inclined to agree that he’s right, and to read just a portion of it, I think, would be error, and we have to read the entire testimony.
THE COURT: Ladies and gentlemen of the jury, we cannot read just a portion of the testimony, in fairness to both the State and the defense. If the testimony is to be read, it has to be read in its entirety, because to read just a portion of it might put an undue emphasis on that portion which is read, and minimizing something that is — or have you overlook something that you should also consider.
All right, Maggie, continue reading. We’ll get you some water in just a minute. (Court reporter continues reading the remainder of the testimony of Charles Jimmy Carter, as it is reflected in this transcript, beginning on page 372, line 11, through page 467, line 1.)
REPORTER: That is all of the testimony of Charles Jimmy Carter.
THE COURT: All right, you have asked for some other testimony, but we will consider that after we—
FOREMAN CARSWELL: Yes, Your Honor. I think if we go back to the room, we can abbreviate some of those witnesses that we asked for.
THE COURT: I thought maybe you would.
THE COURT: You may step back to your room now.
(Jury retired for further deliberations at approximately 7:56 o’clock p. m., October 29, 1976.) (Jury absent.)
(Jury buzzed at approximately 8:42 o’clock p. m., October 29, 1976.) (Counsel for the State, defendant, and defendant Lewis present.)
BAILIFF SILLASEN: All they wanted to know is if at a later date they wanted to hear some more testimony, can they, but at this time they don’t want to hear any more.
THE COURT: Fine. Tell them they can hear it any time that they want to.

Trial transcript at 992-98.

As the transcript shows, when the reading of Charles Jimmy Carter’s testimony was completed, and the judge and jury agreed that the reading of testimony could then be discontinued until and unless the jury requested to hear the testimony of the other witnesses originally named by the jury foreman, defense counsel interposed no objection. The question of how to deal with the jury’s request for reading of testimony was for the sound discretion of the judge. In the absence of any request by the defense to handle it any differently, it is impossible for this Court to say now that the judge abused his discretion. Appellant’s argument on this issue is without merit.

Finding no error at the guilt-or-innocence phase of the trial, we affirm the judgment of conviction.

III. SENTENCE

Appellant contends that his sentence of death is invalid because Florida’s capital felony sentencing law, section 921.141, Florida Statutes (1975), under which sentence was imposed, is unconstitutional under the Eighth and Fourteenth Amendments to the United States Constitution. Appellant specifically asserts that the law allows for unguided discretionary sentencing, held impermissible in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). This Court has previously upheld the statute against precisely this kind of challenge, Raulerson v. State, 358 So.2d 826, 827 (Fla.), cert. denied, 439 U.S. 959, 99 S.Ct. 364, 58 L.Ed.2d 352 (1978); State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974), as has the United States Supreme Court. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2690, 49 L.Ed.2d 913 (1976). We reaffirm our previous holding and reject appellant’s argument.

Appellant contends that he received ineffective assistance of counsel at the sentencing portion of the trial. In support of this argument he calls our attention to the fact that his attorney did not seek to present any evidence in mitigation and as argument made only a brief and generalized plea for a life sentence. Since the jury returned a recommendation of life imprisonment, however, we believe that trial counsel did as good a job as was possible under the circumstances. Therefore we find this contention to be without merit.

We come now to the propriety of the sentence of death itself. The jury recommended a sentence of life imprisonment. The trial judge overruled the advisory sentence stating that there were a number of aggravating circumstances and no mitigating circumstances. Under the Florida capital felony sentencing law, the recommendation of the jury is entitled to great weight, and should not be overruled unless, based on the aggravating circumstances and the lack of mitigating circumstances, a sentence of death is clearly appropriate. Neary v. State, 384 So.2d 881 (Fla.1980); Tedder v. State, 322 So.2d 908 (Fla.1975).

As aggravating circumstances, the trial court judge found that at the time of the capital felony, the appellant was under sentence of imprisonment, § 921.141(5)(a), Fla.Stat. (1975), that appellant had previously been convicted of crimes involving the use or threat of violence, id. § 921.141(5)(b), that in committing the capital felony, appellant knowingly created a great risk of death to many persons, id. § 921.141(5)(c), and that the murder was especially heinous, atrocious, and cruel. Id. § 921.141(5)(h).

The finding that appellant committed the capital felony while under a sentence of imprisonment was based on the fact that he was on parole from a prison sentence at the time of the murder. Based on the evidence of this fact, we approve the court’s finding of this aggravating circumstance.

The trial court judge based his finding of previous conviction of felonies involving violence of appellant’s two convictions of breaking and entering with intent to commit a felony, two convictions of escape, one conviction of grand larceny, and one conviction of possession of a firearm by a convicted felon. We hold that none of these crimes falls within the meaning of this aggravating circumstance as defined by the statute. Only previous conviction of “another capital felony or of a felony involving the use or threat of violence” will satisfy section 921.141(5)(b). This subsection refers to life-threatening crimes in which the perpetrator comes in direct contact with a human victim. See Ford v. State, 374 So.2d 496 (Fla.1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980). We therefore disapprove this finding.

The trial court judge based his finding of knowing creation of great risk of death to many persons on the fact that two women were visiting the victim at the time of the murder and appellant knew they were there. Although the evidence showed that appellant acted with total disregard for the safety of these two bystanders, this is not enough to establish this aggravating circumstance. Williams v. State, 386 So.2d 538 (Fla.1980); Lewis v. State, 377 So.2d 640 (Fla.1979); Kampff v. State, 371 So.2d 1007 (Fla.1979).

The trial court judge based his finding that the murder was heinous, atrocious, and cruel on the fact that the murder was premeditated, cold and calculated, and stealthily carried out. Early in the history of the capital felony sentencing law, this Court provided an interpretation of this statutory factor. “What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crimes apart from the norm of capital felonies — the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” State v. Dixon, 283 So.2d 1, 9 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). Under this standard, a murder by shooting, when it is ordinary in the sense that it is not set apart from the norm of premeditated murders, is as a matter of law not heinous, atrocious, or cruel. Lewis v. State, 377 So.2d 640 (Fla.1979); Cooper v. State, 336 So.2d 1133 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977); Tedder v. State, 322 So.2d 908 (Fla.1975). We hold, therefore, that the finding of this factor was erroneous.

The jury recommended a sentence of life imprisonment. The trial court judge’s sentencing findings contain a discussion of each of the statutory mitigating circumstances and a statement that none of them are applicable to the facts of this case. However, the jury is not limited, in its evaluation of the question of sentencing, to consideration of the statutory mitigating circumstances. It is allowed to draw on any considerations reasonably relevant to the question of mitigation of punishment. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Songer v. State, 365 So.2d 696 (Fla.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979). Since three of the trial court’s four aggravating circumstances have been found to be erroneous, we remand the case for reconsideration of sentence by the trial court judge so that the single established aggravating circumstance can be weighed against the recommendation of the jury.

The judgment of conviction of murder in the first degree is affirmed. The sentence of death, however, is vacated and the case remanded for a new sentencing proceeding to be held before the trial court judge.

It is so ordered.

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

ADKINS, J., concurs as to conviction and dissents as to sentence.


author: PER CURIAM. McDONALD, Justice,

text:
    Jacob John DOUGAN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 47260.
    Supreme Court of Florida.
    April 9, 1981.
    Rehearing Denied June 4, 1981.
    Joseph M. Nursey, Atlanta, Ga., for appellant.
    Jim Smith, Atty. Gen., Wallace E. All-britton and David P. Gauldin,-Asst. Attys. Gen., Tallahassee, for appellee.
   PER CURIAM.

Jacob Dougan was convicted of first degree murder and sentenced to death in a trial proceeding which we affirmed on direct appeal. Barclay v. State, 343 So.2d 1266 (Fla.1977), cert. denied, 439 U.S. 892, 99 S.Ct. 249, 58 L.Ed.2d 237 (1978). At approximately the same time that our decision was rendered in that case, the United States Supreme Court released its opinion in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), holding that it is a denial of due process for the death sentence to be imposed when the trial judge, in weighing the aggravating and mitigating circumstances of the case, considers information which the defendant had no opportunity to deny or explain.

In order to provide for all persons whose sentences of death had been approved by this Court the protections which Gardner required, and to provide for a uniform procedure to hear applications for relief filed in reliance on Gardner, we entered so-called “Gardner relief orders” for all affected individuals. After one such order was entered for Dougan, we vacated Dougan’s sentence and remanded for resentencing, Barclay v. State, 362 So.2d 657 (Fla.1978), because the record and response of the trial judge did not clearly indicate that Dougan’s counsel had a meaningful opportunity to be heard on any of the matters contained in the pre-sentence investigation report which the trial judge had considered in his original sentencing order. In taking that action, we expressly remanded the case for a new hearing “at which the defense [would have] the opportunity to rebut any of the information contained in the pre-sentence investigation reports .... ” Id. at 658. Our directive was quite clear that this Court would review a reimposition of the death penalty, “limited to matters related to the compliance with this order.” Id.

The trial judge who originally sentenced Dougan conducted a three-day hearing at which Dougan’s attorney produced twenty-six character witnesses and made a number of motions. All motions were denied by the trial judge, and at the conclusion of the hearing a new death sentence was imposed. The case is now back in this Court to review that sentence of death. On the basis of a close review of the transcript of the three-day hearing and all other matters submitted to the Court in conjunction with the appeal now pending, we are satisfied that the trial judge’s new sentence of death is appropriate.

Counsel for Dougan filed multiple motions during the course of the Gardner remand proceeding, not one of which was directed to the mandate we had issued. Treating the remand as an opportunity to revisit the constitutionality of the death penalty, the bias of the trial judge, the impropriety of articulated aggravating circumstances found in the original sentencing order, and a range of other matters unrelated to our directive, Dougan’s counsel endeavored to treat the remand as a full-blown sentencing proceeding. The trial judge properly rejected counsel’s attempt to expand the proceeding. Songer v. State, 365 So.2d 696 (Fla.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979).

Our vacation of Dougan’s death sentence for Gardner relief was technically-based, serving the sole purpose of allowing Doug-an’s counsel to demonstrate that matters contained in the pre-sentence investigation report were improper and prejudicial. Dougan has now had that opportunity, and from the record he has failed to show that any information contained in the pre-sen-tence investigation report was in any way erroneous, misleading or prejudicial.

We now hold that Dougan was not prejudiced by the trial court’s early consideration of a pre-sentence investigation report which his counsel originally had no opportunity to rebut, that the original findings of the trial court were not tainted or otherwise rendered invalid by the pre-sen-tence investigation report, and that the reimposition of a death penalty was proper. We affirm the sentence imposed by the trial judge.

It is so ordered.

ADKINS, Acting C. J., and BOYD, ENGLAND and ALDERMAN, JJ., concur.

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

McDONALD, Justice,

dissenting.

I dissent. The original sentence in this cause was vacated. If execution as ordered is to take place, then that execution must be predicated on the last-imposed sentence, which must be free from infirmities. Just because it is the same as a prior affirmed sentence does not necessarily make this one correct; it must pass constitutional muster on its own. This sentence does not.

After previously stating that the facts of contempt were unknown, the trial judge wrongfully found that two criminal contempt convictions constituted the aggravating factors of being under a sentence of imprisonment when the murder was committed and conviction of a felony involving the use of threat or violence. Neither is true. The judge also improperly found that in committing the murder the defendant knowingly created a great risk of death to many persons. There was evidence that the defendant may have sought other victims when he perpetrated this murder, but the murder endangered no one but the victim. The test set out in Kampff v. State, 371 So.2d 1007 (Fla.1979), is not met. I also disagree with the apparent prior conclusion-of this Court that anything supports the trial judge’s finding that the murder was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of law because I don’t believe the legislature intended for that aggravating factor to apply to the circumstances of this case. Evidence supports only two of the court’s findings: that the murder was committed during a kidnapping and that the murder was heinous, atrocious and cruel.

Besides finding at least two unfounded aggravating factors, the trial judge failed to recognize one statutory mitigating factor. Also, the defendant presented substantial nonstatutory mitigating evidence. This evidence was properly presented and related to information on the defendant’s background, which had been addressed in the pretrial report. While the trial judge was not required to agree with such evidence, he should at least have considered it and made some reference to it in the weighing process.

I would remand this cause for a new sentencing proceeding.

OVERTON, J., concurs.

      . See also Funchess v. State, 399 So.2d 356 (Fla.1981) (trial court on remand for Gardner relief properly refused to provide an entirely new sentencing proceeding in which a new advisory jury could be reconvened).

      . Our disposition of this proceeding in accordance with the limitations imposed at the time we remanded this proceeding to the trial judge makes unnecessary any consideration of multiple challenges which Dougan raises to the proceeding below, to the imposition of the death penalty, to the motion denials by the trial judge, and to the absence of a resentencing jury. That the disposition of these matters is unnecessary to this proceeding does not mean that we have not reviewed or considered the arguments presented by Dougan’s counsel in this appeal. We have, and the fact is that each argument presented by Dougan’s counsel is fully, adequately and accurately refuted or rebutted by the contrary contentions made in appel-lee’s brief.

      . See Barclay v. State, 343 So.2d 1266, 1271 n. 3 (Fla.1977).

      . Id. n. 5.

      . No significant prior criminal activity.


text:
    THE FLORIDA BAR In re AMENDMENT TO THE CODE OF PROFESSIONAL RESPONSIBILITY.
    No. 59117.
    Supreme Court of Florida.
    April 23, 1981.
    Leonard H. Gilbert, President of The Florida Bar, Bill Wagner, Chairman, Integration Rules and Bylaws Committee, Tampa, and James P. Hollaway, Deputy Staff Counsel, Tallahassee, for petitioner.
   PER CURIAM.

This proceeding was initiated by petition of The Florida Bar to amend the Code of Professional- Responsibility. We have jurisdiction under article V, section 15, Florida Constitution.

The Bar proposes that we amend Disciplinary Rule 2-102(C) to conform to recent developments in permissible professional arrangements in law practice. Because it is now possible, under the Bar’s ethical guidelines, for a professional association to enter into a partnership for the practice of law, the Bar deems it advisable that the discipli-, nary rule prohibiting a lawyer from holding himself out as having a partnership with another lawyer cover also the conduct of one who holds himself out as a partner of a professional corporation.

We hereby adopt the following amendment to Disciplinary Rule 2-102(C), effective May 15, 1981. The added words are indicated by underscoring.

DR2-102 Professional Notices, Letterheads, Offices, and Law Lists
(C) A lawyer shall not hold himself out as having a partnership with one or more other lawyers or professional corporations unless they are in fact partners.

It is so ordered.

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


author: ALDERMAN, Justice. BOYD, Justice, ENGLAND, Justice,

text:
    Leroy Franklin CLADD, Petitioner, v. STATE of Florida, Respondent.
    No. 59113.
    Supreme Court of Florida.
    April 30, 1981.

      Jack 0. Johnson, Public Defender, and Michael E. Raiden and Douglas A. Lockwood, Asst. Public Defenders, Bartow, for petitioner.
    Jim Smith, Atty. Gen., Charles Corees, Jr., Asst. Atty. Gen., Tampa, and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for respondent.
   ALDERMAN, Justice.

The sole issue presented for review is whether a husband, who is physically but not legally separated from his wife, can be guilty of burglary when he enters premises, possessed only by the wife and in which he has no ownership or possessory interest, without the wife’s consent and with intent to commit an offense therein. The District Court of Appeal, Second District, answered this question in the affirmative in the present case and thereby created conflict with Vazquez v. State, 350 So.2d 1094 (Fla. 3d DCA 1977), cert. denied, 360 So.2d 1250 (Fla.1978). We hold that the Second District correctly decided that, under the particular facts of this case, the defendant could be guilty of burglary of his estranged wife’s apartment, and we approve its decision.

The factual situation is narrow. The defendant and his wife had been separated for approximately six months, although there was no formal separation agreement or restraining order. He had no ownership or possessory interest in his wife’s apartment and had at no time lived there. One morning, he broke through the locked door of her apartment with a crowbar, struck her, and attempted to throw her over the second floor stair railing. The next morning, he again attempted to break into her apartment but left when the police arrived.

The defendant was charged with burglary and attempted burglary. Although conceding that his wife did not in fact consent to his entry into her apartment, he moved to dismiss the charges on the basis that since the victim was his wife, he was licensed or invited to enter her apartment as a matter of law. He then contended that, if he had the right to enter the apartment, he could not be guilty of burglary or attempted burglary. Relying upon Vazquez v. State, the trial court dismissed the charges. The State appealed, and the Second District, expressly disagreeing with the rationale of the Third District in Vazquez, reversed. The Second District held that although each spouse may have the legal right to the other’s company, this does not include the right to break and enter the other’s apartment with intent to commit an offense therein.

In Vazquez, the Third District held that since the husband in that case had the legal right to be with his wife, he could not be guilty of burglary when he broke into her apartment. Judge Haverfield, however, expressing the view later adopted by the Second District, dissented to the reversal of the burglary conviction. Pointing out that the victim’s wife had the sole possessory rights to the apartment and that defendant had gained entrance only by actually breaking down the door and finding that the evidence was sufficient to sustain the burglary conviction, he concluded that the wife’s apartment was not a marital abode and defendant no longer had a legal right to be there.

Later, in Wilson v. State, 359 So.2d 901 (Fla. 3d DCA), cert. denied, 365 So.2d 716 (Fla.1978), the Third District addressed the issue of whether entry into a father-in-law’s home, where defendant’s wife was temporarily residing, with intent to assault her constituted burglary. Distinguishing Vazquez on the basis that, in Wilson, the premises were possessed by the wife’s father, the Third District affirmed defendant’s burglary conviction and said that the husband’s legal right to be with his wife did not establish consent where the wife was living in premises which were not solely possessed by her. The right of consortium alone was not sufficient to give the husband a right of entry into these premises. Yet, the legal right of consortium was the basis upon which the Third District premised its determination of implied consent in Vazquez.

We reject the defendant’s contention that the marriage relationship and the right of consortium deriving therefrom preclude the State from ever establishing the nonconsensual entry requisite to the crime of burglary, and we disapprove the Third District’s contrary ruling in Vazquez. Since burglary is an invasion of the possessory property rights of another, where premises are in the sole possession of the wife, the husband can be guilty of burglary if he makes a nonconsensual entry into her premises with intent to commit an offense, the same as he can be guilty of larceny of his wife’s separate property. In State v. Herndon, 158 Fla. 115, 27 So.2d 833 (1946), discussing a wife’s separate property rights, we held that a husband could be charged with the larceny of his wife’s separate property, and we explained:

In a society like ours, where the wife owns and holds property in her own right, where she can direct the use of her personal property as she pleases, where she can engage in business and pursue a career, it would be contrary to every principle of reason to hold that a husband could ad lib appropriate her property. If the common-law rule was of force, the husband could collect his wife’s pay check, he could direct its use, he could appropriate her separate property and direct the course of her career or business if she has one. We think it has not only been abrogated by law, it has been abrogated by custom, the very thing out of which the common law was derived.

27 So.2d at 835. The defendant’s consortium rights did not immunize him from burglary where he had no right to be on the premises possessed solely by his wife independent of an asserted right to consortium.

The defendant’s estranged wife was in sole possession of the premises into which he broke with intent to assault her. The district court correctly reversed the trial court’s dismissal of the burglary and attempted burglary charges.

Accordingly, we approve the district court’s decision that burglary and attempted burglary convictions could stand.

It is so ordered.

ADKINS, OVERTON and McDONALD, JJ., concur.

BOYD, J., dissents with an opinion.

ENGLAND, J., dissents with an opinion, with which SUNDBERG, C. J., concurs.

BOYD, Justice,

dissenting.

Under long-established principles of Anglo-American law, one of the essential incidents of the marital state is the right of spouses to the company and comfort of one another. This right is referred to as the right of consortium.

Consortium is so basic as an incident of marriage that it should not be undermined except by a clear legislative statement of the public policy of this state. The legislature should reconcile the matter of consortium rights with the elements of any crime, and should do so very carefully when dealing in the context of a crime carrying a possible sentence of life imprisonment. See § 810.02(2), Fla.Stat. (1977).

In Vazquez v. State, 350 So.2d 1094 (Fla. 3d DCA 1977), cert. denied, 360 So.2d 1250 (Fla.1978), the District Court of Appeal, Third District, construed the burglary statute we have before us in this case. The facts of the situation were almost identical to those we have here. The Vazquez case was the first construction of the burglary statute in the context of the situation of a spouse who forcibly enters the premises of his marriage partner living separately but without any legally established separation.

In Wilson v. State, 359 So.2d 901 (Fla. 3d DCA 1978), cert. denied, 365 So.2d 716 (Fla. 1978), the third district distinguished Vazquez and held that the burglary statute could be applied to a husband who forcibly entered his separated wife’s father’s home for the purpose of attacking her.

The legislature has met a number of times since the principles of the Vazquez and Wilson cases were announced. I believe the fact that the legislature failed to modify or clarify the burglary statute in response to the judicial development of these principles indicates that the legislative intent was properly derived in those cases.

It appears from the situation under consideration that perhaps the petitioner should be charged with violating some criminal statute of Florida, but not burglary with its possible penalty of life imprisonment.

I would therefore quash the district court decision and adopt the Vazquez rule as applicable to this case.

ENGLAND, Justice,

dissenting.

Like an anxious Pandora endeavoring to stuff the ills of the world back into her box, the majority endeavors to confine inter-spousal crimes to the factual situation of this case. As Pandora and the world sadly learned, however, once the box is opened there is no way to contain the ephemeral evils which escape.

The majority today holds that one spouse may commit burglary against another. This new common law doctrine has emanations which go far beyond this case. This becomes evident when the case is viewed preliminarily from the perspective of what is not here involved.

First, this is not a prosecution for assault. Any discussion with regard to the husband’s physical abuse or intended physical abuse of his wife is extraneous to the legal question presented. Mr. Cladd may or may not be prosecuted for his violent acts toward his wife’s person. Whether that occurs is beside the point.

Second, this case does not involve spouses who are divorced, legally separated, or already in court in a pending dissolution proceeding. The husband and wife here are married, and there is no objective, legal manifestation that their marriage or interpersonal relations are being unwound. That they live apart, it will be seen, is quite irrelevant to the legal issue posed.

Third, this case does not entail a situation where separately-owned property, purchased or inherited by the wife, was established as a residence apart from her husband’s. The record here only shows that Mrs. Cladd’s living accommodations were separate from her husband’s. We do not know who purchased the furnishings and fixtures, whether they came from a residence which had been occupied jointly, or even whether the separate abode was a second or alternative home.

When these matters are removed from the legal considerations, this case boils down to a husband’s uninvited entry onto premises which the wife occupies away from the marital home. This situation is legally indistinguishable from other situations in which a separate residence is maintained by one or both spouses and in which one is temporarily residing, such as a summer home, a winter ski lodge, a vacation cottage at the seashore, a temporary, rented, haven from marital incompatibility, a remote wing or separate building on jointly occupied property (such as a studio-garage in which one spouse alone works), or even a separate bedroom in which one spouse may be seeking a retreat in the marital home. The record of this proceeding nowhere indicates that the wife had a separate possesso-ry interest in the property she placed in her separate facility. We do not know whether the six-month separation of these spouses was the result of estrangement, a mutually agreed-upon cooling off period, a segregated vacation plan, or some other reason. Mr. Cladd here, I submit, was simply charged with illegal entry into a place where his wife claimed sanctuary from their common residence. The manner of entry and the purpose for entry may prompt judicial concerns for the wife’s welfare, but the parties’ motives or state of mind will prove an unreliable touchstone for criminal prosecutions of this sort, I predict.

The effect of today’s decision is to bring prosecuting attorneys into marital disputes in a way which is unprecedented in Florida or elsewhere. I confess I am not comfortable with the Third District’s analysis of the basis for rejecting burglary prosecutions in these situations — a right of cohabitation or consortium. Those concepts connote marital harmony, and here we have obvious discord. I am quite comfortable, however, with the thought that our criminal courts should not be involved, in fact or as a threat, in domestic disputes which involve an invasion of one spouse’s claim of separateness or privacy. Personal assaults, I repeat, are different, and in those cases perhaps different considerations should pertain.

SUNDBERG, C. J., concurs.

      . State v. Cladd, 382 So.2d 840 (Fla. 2d DCA 1980).

      . Burglary means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain. Section 810.02, Florida Statutes (1977). It is a crime that involves primarily the invasion of possessory property rights of another. Cannon v. State, 102 Fla. 928, 136 So. 695 (1931).

      . One cannot help but wonder, for example, what effect this case will have on the doctrine of interspousal immunity, preserved by a one-vote majority of this Court on the basis, among others, of the legal fiction that marriage creates a unity of interests which prevents suit by one spouse against the other. See Raisen v. Raisen, 379 So.2d 352 (Fla.1979).

      . See Administrative Order of Circuit Judge James W. Kehoe, authorizing the creation of the Family Division of the Circuit Court — Family Civil Department. Case No. 77-1 (July 1, 1977).


text:
    THE FLORIDA BAR. In Re ADVISORY OPINION CONCERNING the APPLICABILITY OF CHAPTER 119, FLORIDA STATUTES.
    No. 57866.
    Supreme Court of Florida.
    April 30, 1981.
    Leonard H. Gilbert, President of The Florida Bar, Tampa, James P. Hollaway, Deputy Staff Counsel, and H. Glenn Boggs, Asst. Staff Counsel-UPL, Tallahassee, Ronald R. Richmond, Chairman, Standing Committee on UPL, New Port Richey, and C. Harris Dittmar, Board Liaison Member, Standing Committee on UPL, Jacksonville, for petitioner.
    Jim Smith, Atty. Gen., and Frank A. Vickory, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

This cause is before us upon petition of the Board of Governors of The Florida Bar for an advisory opinion concerning the applicability of chapter 119, Florida Statutes (1979) (Public Records Law), to the committee of The Florida Bar on unauthorized practice of law. Particularly, we are asked to determine whether unauthorized practice of law investigative files are “public records” subject to inspection by members of the press under the authority of chapter 119, Florida Statutes. Jurisdiction is predicated on the Court’s inherent and exclusive constitutional authority over its agencies who act in its behalf. In Re Florida Board of Bar Examiners, 278 So.2d 266 (Fla.1973); In Re The Florida Bar, 215 So.2d 613 (Fla. 1968). In Re Florida Board of Bar Examiners, 353 So.2d 98 (Fla.1977), was an advisory opinion concerning a statute requiring state agencies to adapt their entrance or qualifying examinations to accommodate individuals who are blind or deaf. Even though we recognized the benefits of such a policy, we held it invalid as applied to the Florida Board of Bar Examiners, stating:

Because the Florida Constitution by its express terms vests exclusive jurisdiction in this Court to regulate the admission of persons to the practice of law, because the Florida Board of Bar Examiners is an attache of this Court, and because the act imposes criminal penalties upon the Board for failure to adhere to its provisions, we find the act invalid as to the Board of Bar Examiners in administering the Florida Bar Examination. Our Constitution prohibits legislative interference with this Court’s exercise of its power to govern admissions to The Florida Bar. Article V, Section 15, Florida Constitution.

353 So.2d at 100 (emphasis added.)

The drafters of the Florida Constitution recognized this inherent right of the courts to regulate the admission of persons to the practice of law, imbuing the Supreme Court with exclusive jurisdiction to direct such admissions. Article V, Section 15, Florida Constitution. See The Florida Bar v. Massfeller, 170 So.2d 834 (Fla.1964). In the exercise of its constitutional authority, this Court created the Florida Board of Bar Examiners to evaluate candidates for admission to The Florida Bar. As an arm of this Court, the Board is answerable solely to this tribunal. Any legislative enactment which constitutes an usurpation of this Court’s constitutionally endowed power, by seeking to govern the Board’s activities must be invalid.

Id. (Emphasis added.)

The definition of “public records” in section 119.011(1), Florida Statutes (1979), and the definition of the term “agency” as contained in section 119.011(2) are far reaching, and broad enough to include the records of judicial branch entities. It is fundamental that all the legislative power of the state which is not withheld or vested elsewhere by the constitution resides in the legislature. Where a limitation does exist, however, the legislature may not exceed such limitation. If judicial entities are included within the scope of chapter 119, the legislature has sought to exercise legislative power concerning a matter that is explicitly withheld and vested elsewhere in the constitution, i. e., article V.

Article II, section 3, Florida Constitution, provides no person belonging to one branch of government shall exercise any power appertaining to either of the other branches unless explicitly provided in the constitution. Neither the legislature nor the governor can control what is purely a judicial function.

In Re The Florida Bar, 316 So.2d 45 (Fla. 1975), was an advisory opinion concerning the applicability of chapter 74-177, Laws of Florida, commonly known as the Financial Disclosure Law, to members of The Florida Bar acting in their historical professional capacity as “officers of the Court.” We held that the Financial Disclosure Law was inapplicable as a code of conduct to officers of the judicial branch explaining this Court had the inherent right to supervise the bar as an incident to this Court’s power to control, admit to practice, and discipline attorneys. This right is given to this Court by virtue of Article V, section 15, Florida Constitution.

The unauthorized practice of law investigative files of The Florida Bar, as an official arm of this Court, are subject to the control and direction of this Court and not to either of the other branches of the government.

As a practical matter, the public interest is best served by shielding The Florida Bar unauthorized practice of law investigative files from disclosure under chapter 119, Florida Statutes, for to do otherwise might allow adverse and harmful publicity to focus on persons innocent of any wrongdoing but who, nevertheless, are subject to an unfounded complaint. When probable cause appears that someone is engaged in the unauthorized practice of law, the bar initiates litigation. From that point all records, of course, are open for a public inspection.

We hold that chapter 119, Florida Statutes, does not apply to The Florida Bar’s Unauthorized Practice of Law investigation files.

It is so ordered.

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