author: LEE, Justice, HAWKINS, Justice,

text:
    Harold D. DIDDLEMEYER v. STATE of Mississippi.
    No. 52594.
    Supreme Court of Mississippi.
    June 3, 1981.

      Robert M. Acevedo, Biloxi, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr. Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and SUGG and LEE, JJ.
   LEE, Justice,

for the Court:

Harold D. Diddlemeyer was indicted, tried and convicted in the Circuit Court of Harrison County, Honorable Ruble Griffin, presiding, on a charge of burglary as an habitual offender. He was found guilty by the jury and was sentenced to life imprisonment without parole or probation. He has appealed and assigns seven (7) errors in the trial below.

On March 8, 1979, appellant activated a silent alarm at Nacol’s Jewelry Store in North Biloxi, while entering the building by prying open a section of the metal wall at the rear of the building and cutting through the interior wall. Officers of the Harrison County Sheriff’s Department and the Biloxi Police Department converged on the scene and discovered appellant inside the building. He was ordered to come out at the point of entry and was arrested. The manager of the store had been notified and he arrived shortly thereafter. The appellant’s person was searched, and a number of jewelry items were found in his pockets. They were identified by the manager as merchandise from the store.

I.

Was the appellant deprived of a speedy trial?

After his arrest on March 8, 1979, appellant was returned to the Mississippi State Penitentiary because of parole violation. The February Grand Jury had adjourned at the time and appellant was indicted in August, 1979. Due to a crowded court docket, appellant was not called for arraignment until February 15, 1980, at which time it was found that he had not been served with a copy of the indictment. Thereupon, he was presented with the indictment, and one week later, on February 22, 1980, he was arraigned in Cause # 2028. The case was tried seventeen (17) days afterward on March 10, 1980.

Appellant argues the 270-day period under Mississippi Code Annotated Section 99-17-1 (Supp.1980) runs from the date of the offense. His trial from date of arraignment was well within the 270-day period. We now consider whether or not appellant was prejudiced by the lapse of time from the date the ■ crime was committed until trial. The question is governed by Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and Carlisle v. State, 393 So.2d 1312 (Miss.1981). In Carlisle, we said:

“In Barker the United States Supreme Court announced a four part balancing test involving the following four factors:
1. Length of delay,
2. Reason for delay,
3. The defendant’s assertion of his right,
4. Prejudice to the defendant.
The Supreme Court, in Barker, promulgated the balancing test because, ‘The right to a speedy trial is a more vague concept than other procedural rights. It is, for example, impossible to determine with precision when the right has been denied.’ The balancing test set forth in Barker must be applied on a case by case basis under the particular facts of the case under consideration.” 393 So.2d at 1314.

The delay in the trial resulted from the fact that the grand jury was not in session when the crime was committed and because of a crowded docket. It was not an unreasonable delay in trial, appellant has not shown prejudice, and we find no merit in this contention.

II.

Did the indictment fail to properly charge appellant under Indictment # 2028?

Appellant contends that the indictment in Cause # 2028 did not properly charge a violation of the habitual criminal statute. Mississippi Code Annotated Section 99-19-83 (1972) provides the following:

“Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.”

In Usry v. State, 378 So.2d 635 (Miss. 1979), the Court stated the procedure for indictments under the habitual criminal statute:

“However, we would bring to the attention of the Bench and Bar of this State that under the authority of Newell v. State, 308 So.2d 71 (Miss.1975), we adopted the Mississippi Uniform Criminal Rules of Circuit Court Practice on August 10, 1979, which includes Rule 6.04, entitled ‘Procedure for Proof of Prior Convictions under the Habitual Criminal Statute’, and which now supersedes the holding in Lay [v. State, 310 So.2d 908] supra. Rule 6.04 provides as follows:
‘In cases involving enhanced punishment for subsequent offenses under the Habitual Criminal Statute [Miss.Code Ann. § 99-19-83 (Supp.1976)]:
(1) The indictment must include both the principal charge and a charge of previous convictions. The indictment must allege with particularity the nature or description of the offense constituting the previous felonies, the state or federal jurisdiction of previous conviction, and the date of judgment.’ ” 378 So.2d at 638.

The parts of the indictment pertinent to this contention follow:

“[A]nd did then and there unlawfully, wilfully and feloniously take, steal and carry away certain personal property, to-wit: 1 calibra silver lighter, one calibra gold lighter, one seiko gold ladies wrist watch; one gold necklace with the name “Diane” engraved on said necklace; one 14 carat gold set of earrings and one box containing a repaired Opal, multiple opal ring, a better description being to your grand jurors unknown, of the personal property of the said Nacol’s Jewelry Inc., a Mississippi Corporation,
and after he, the said Harold Diddlemeyer had previously been convicted heretofore of the crime of Murder being cause No. 13,878, said conviction having been had in the Harrison County Circuit Court and being sentenced on April 3, 1969 to serve a sentence of Life in the Mississippi State Penitentiary said conviction being reflected in Minute Book 35, page 109 of the Minutes of the Harrison County Circuit Court, First Judicial District, and did serve at least one year of said sentence, and after he, the said Harold Diddlemeyer had previously theretofore been convicted of the crime of Grand Larceny being cause No. 13,259, said conviction having been had in the Harrison County Circuit Court and being sentenced on March 6, 1967, to serve a sentence of two years in the Mississippi State Penitentiary, said sentence reflected in Minute Book 32, page 413 of the Minutes of the Harrison County Circuit Court, First Judicial District, and did serve at least one year of said sentence
and after he, the said Harold Diddlemeyer had previously theretofore been convicted of the crime of Jail Escape being cause No. 13,260, said conviction having been had in the Harrison County Circuit Court and being sentenced on March 6, 1967, to serve a sentence of two years in the Mississippi State Penitentiary, said Defendant to begin serving sentence on May 5, 1969, said sentence reflected in Minute Book 32, page 413, of the Minutes of the Harrison County Circuit Court, First Judicial District, and did serve at least one year of said sentence, ...”

We are of the opinion that, contrary to the contention of appellant, the indictment correctly charged a violation of the habitual criminal statute.

III.

Did the court err in finding that appellant served a separate term of one (1) year or more on a crime of violence?

The appellant admits that he served a year or more on two (2) of the previous convictions, but contends that the evidence does not indicate he served at least a year for murder, a crime of violence. However, the record reflects that he served the following time in the Mississippi State Penitentiary:

YEAR TIME SPENT
1966 276 days
1967 311 days
1968 0 days (escaped)
1969 271 days
1970 1 year
1971 1 year
1972. 1 year
1973 1 year
1974 1 year
1975 1 year
1976 1 year
1977 356 days-
1978 0 days (parole)
1979 284 days
1980 69 days
TOTAL 11 years 127 days

The time served by appellant is three (3) years twenty-seven (27) days longer than that stated in his brief. Mr. B. C. Ruth, Custodian of the Records at the Mississippi State Penitentiary, testified concerning the time served as follows:

“Q. Now, are you, are you telling us that he had served the ones he was in Jail for, the two here and the death, uh, and the life sentence, which he received additional in 1969?
A. On, on these sentences, as I stated before, he came to Parchman in May of ’66 with a four year sentence.
Q. Yes, sir.
A. All right. He, uh, accumulated other sentences after he received that sentence.
Q. Yes, sir.
A. All right. Now, in order to figure a discharge date, by law, we have to use those sentences, the accumulative sentence, as one, even though . there are five or six of them, five or six separate charges that he is serving on.
Q. Right, sir.
A. Now, he has, he has served enough time, at this time, he has served enough time to complete all of those sentences and approximately a year and two or three months on his life sentence. Does that answer your question?”

The record reflects that appellant served the required time on his previous felony sentences and does not support the contention of appellant.

IV.

The appellant argues that he was deprived of the right to a hearing before a jury of his peers during the habitual offender phase of the trial. This question was decided adversely to appellant in the recent case of Wilson v. State, 395 So.2d 957 (Miss.1981). He contends that Section 99-19-83, the habitual offender statute, violates his constitutional rights in that it inflicts cruel and unusual punishment upon him. Although the question was not raised in the trial court, and should not be considered here for the first time, it was decided against appellant’s contention in Bell v. State, 355 So.2d 1106 (Miss.1978); White v. State, 374 So.2d 843 (Miss.1979), and Rum mel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980).

We have considered the other assignments of error, and find that they are without merit.

For the reasons stated, the judgment of the lower court is affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM and BOWLING, JJ., concur.

HAWKINS, J., dissents.

HAWKINS, Justice,

dissenting:

For the reasons heretofore stated in the dissenting opinion in Wilson v. State, 395 So.2d 957 (Miss.1981), I respectfully dissent to that portion of the opinion which denies to the accused the right of trial by jury to determine the factual issue of whether or not he is a habitual offender under Mississippi Code Annotated § 99-19-83 (1972).

      . Appellant was charged with burglary and three (3) previous felony convictions as an habitual offender.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Bobby STEAPLETON & Ida Killian v. Hugh Paul JONES
    79-895.
    Supreme Court of Alabama.
    April 24, 1981.
    William D. Hudson, of Wilson & Hudson, Gadsden, for appellants.
    Michael L. Roberts, of Floyd, Keener & Cusimano, Gadsden, for appellee.
   BEATTY, Justice.

This is an appeal by plaintiffs, Steapleton and Killian, from a summary judgment in favor of the defendant, Jones. We affirm.

The instant action grew out of previous litigation between these parties. On February 17, 1976 Paul Jones and Leona Jones filed an action against Ida Killian and Bobby Steapleton, demanding damages for rent due under a lease of real estate, and additional damages because of extensively detailed injuries done to a house thereon when the defendants moved. To this complaint the defendants filed, on February 26, 1976, a motion to dismiss for failure to state a claim on which relief could be granted. Later, on May 23, 1976, the defendants filed an answer claiming, inter alia, accord and satisfaction. They also counterclaimed for damages on account of the breach of an agreement between them made at the time when Paul Jones purchased this real property, Ida Killian’s home place, to the effect that Ida Killian would be allowed to live on the property rent free for her life. The defendants alleged a breach of this agreement because of the demand for rent and the eviction of Ida Killian from the premises. The defendants added:

The plaintiff, Paul Jones, also subsequently sought a warrant and indictment against said defendants alleging the destruction of property of another, all to the embarrassment, inconvenience, expense and mental anguish of the defendants.

The indictments referred to in the defendants’ counterclaim had been returned during the Second Spring Term, 1976 of the grand jury of Etowah County (after the plaintiff’s complaint had been filed) and were filed on March 19,1976. These indictments charged each of the defendants with the offense of willfully or wantonly injuring or destroying the property of another, i. e., a house and curtilage belonging to Paul Jones, the same property involved in the civil action.

The plaintiff’s answer to the defendants’ counterclaim denied the existence of the alleged contract and disputed Ida Killian’s right to remain in the home, contending that her right to remain therein was fixed by a lease under which her right of occupancy was terminated.

According to the record, the prosecution against the defendant Ida Killian was dismissed on June 13, 1978 on the recommendation of the prosecuting witness, Jones. The indictment against the defendant Stea-pleton was tried to a jury, resulting in a verdict of not guilty on June 22, 1978.

Thereafter, on January 26, 1979, by virtue of an agreement between the plaintiffs, the Joneses, and the defendants, Killian and Steapleton, the circuit court entered an order dismissing the complaint and the counterclaim, each with prejudice.

This action for malicious prosecution was filed by Killian and Steapleton against Paul Jones on April 30, 1979, alleging that Jones caused “legal process to issue charging Plaintiffs with Destruction of Property of Another and/or did maliciously and without probable cause, cause such prosecutions of Plaintiffs to continue ...” also alleging the termination of those prosecutions. Jones moved for summary judgment, and later filed an answer and counterclaim. The significant averments of his answer are:

This is [sic] cause of action is barred under the doctrine of Res Judicata. The Plaintiffs herein did previously file a counterclaim against this Defendant in an action styled Paul Jones and Leona Jones, Plaintiffs, vs. Ida Killian and Bobby Steapleton, Defendants, in the Circuit Court of Etowah County, Alabama, C. A., # 76-206, seeking damages among other things for embarrassment, inconvenience, expense and maental [sic] anguish of Ida Killian and Bobby Steapleton as a result of Paul Jones allegedly seeking a warrant and indictment against Bobby Steapleton and Ida Killian for the injury and destruction of property of Paul Jones. That the alleged warrant, indictment and prosecution for destruction of property of Paul Jones alleged in Case No. 76-206, and the malicious prosecution alleged in this claim for the destruction of property of another, both grow out of indictments found against Bobby Steapleton and Ida Killian by the Grand Jury of Etowah County, Alabama, Second Spring Term, 1976. That on June 13,1978, the prosecution of Ida Killian was dismissed and on June 22, 1978, the prosecution of Bobby Steapleton ended in a verdict of not guilty; that before the dismissal and following the dismissal of the above criminal charges the counter claim for malicious prosecution against Paul Jones based upon the indictments was pending in Civil Action # 76-206; that on January 26, 1979, and prior to the bringing of this action and claim, Paul Jones and Leona Jones dismissed their complaint in Civil Action # 76-206 against Ida Killian and Bobby Steapleton with prejudice and at the same time, Ida Killian and Bobby Steapleton dismissed their counter claim against Paul Jones and Leona Jones with prejudice. That the Plaintiffs herein have heretofore instituted action [against] the Defendant herein for the alleged malicious prosecution growing out of the indictments charging the Plaintiffs with malicious destruction of property of Paul Jones; that said previous claim was dismissed with prejudice which was a pri- or final adjudiciation [sic] of the same issue. Plaintiffs herein are precluded by such dismissal with prejudice from asserting the claim again in this action.

The plaintiffs moved for summary judgment on the defendant’s counterclaim for damages due to the alleged destruction of the defendant’s premises when these plaintiffs vacated them. On July 8, 1980 the circuit court granted summary judgments for the parties on their respective motions. The plaintiffs have appealed from that order.

We are convinced, as the defendant urges, that the plaintiffs’ action for malicious prosecution was barred by res judica-ta.

In Geer Bros., Inc. v. Crump, Ala., 349 So.2d 577, 580 (1977) this Court discussed the various rules of res judicata. Citing Reid v. Singer Sewing Machine Co., 218 Ala. 498, 119 So. 229 (1928), this Court recognized two common res judicata principles:

(1) When the former action was between the same parties, that former judgment is conclusive of questions actually litigated and which could have been litigated.
(2) Even though the forms of the actions, past and present, are different, if substantially the same evidence supports their issues, the judgment in the former action is a bar to the latter.

Those two rules emanated from two actions brought by the same plaintiff against the same defendant. Reid, supra. They were applied in Gulf American Fire and Casualty Co. v. Johnson, 282 Ala. 73, 209 So.2d 212 (1968), which held that in cases founded on the same cause of action, res judicata is a bar not only to matters actually presented on a right asserted in the earlier case but to matter which might have been asserted. Geer Bros., supra, explained “cause of action” by referring to Chappell v. Boykin, 41 Ala.App. 137, 127 So.2d 636 (1960) which recognized that

[a] “cause of action” grows out of the wrongful act, and not the various forms of damages that may flow from the single wrongful act,

and to Birmingham Southern Ry. Co. v. Lintner, 141 Ala. 420, 38 So. 363 (1904):

It may be stated as a very general if not universal proposition that one who is entitled to sue at all for the consequences of a wrongful act may recover all the damages that such act has proximately inflicted upon him. His cause of action is the one wrongful act of the defendant .... [Emphasis added.]

What was the wrongful act for which these plaintiffs sought recovery in their earlier counterclaim? In the words of that counterclaim:

The plaintiff, Paul Jones, also subsequently sought a warrant and indictment against said defendants alleging the destruction of property of another, all to the embarrassment, inconvenience, expense and mental anguish of the defendants.

The question, then, is whether those earlier allegations encompass the later allegations of the present action:

2. Heretofore Defendant did maliciously and without probable cause, cause legal process to issue charging Plaintiffs with Destruction of Property of Another and/or did maliciously and without probable cause, cause such prosecutions of Plaintiffs to continue.

These were followed by additional allegations of the termination of the criminal proceedings.

A comparison of the respective allegations establishes that the two actions refer to the same cause of action, that is, the same wrongful act of the defendant. His one act in seeking the warrant and indictment for the destruction of property of another was the gravamen of each alleged wrong. Indeed, under the rules of notice pleading, Rule 8(a), ARCP, we do not doubt that these plaintiffs could have proceeded under their earlier counterclaim to have proved a case for malicious prosecution. That is to say, although proof of the essential elements of (1) prior judicial proceeding, (2) instigated by the defendant, (3) without probable cause, (4) with malice, and (5) favorable termination for the plaintiff, Brown v. Parnell, Ala., 386 So.2d 1137 (1980); cf., on damages recoverable, Shannon v. Sims, 146 Ala. 673, 40 So. 574 (1906), would be required to fix liability on the defendant, nevertheless the allegations of the plaintiff were sufficient on which to allow evidence of those allegations to proceed.

It is clear that the termination of the former proceeding in favor of the plaintiff is a prerequisite to a successful malicious prosecution action. Wilson v. Brooks, Ala., 369 So.2d 1121 (1979). The plaintiffs urge that because the counterclaim in the original action was filed before the criminal prosecutions were terminated, the original counterclaim could not have alleged malicious prosecution. This argument, however, overlooks the fact that in this case the criminal prosecution ended prior to the dismissal of the civil suit. Thus although the original counterclaim may have been premature, that will not prohibit the res judi-cata application where the issue matured prior to the termination of the civil suit because in such a case the subject matter was based on the same act and the matter could have been determined in the first suit. Geer Bros., supra; cf. on the pendency issue, Logan v. O’Barr, 271 Ala. 94, 122 So.2d 376 (1960).

Thus it would be reasonable to hold that an action for malicious prosecution has been alleged in each case. However, even if the same action was not alleged, since both accrued from the same cause of action, the same “act” as explained above, res judi-cata is a bar, to the second case because.its subject matter, founded on the same act, is matter which might have been asserted in the first case. Geer Bros., supra.

The action of the trial judge having been correct, his judgment must be, and is, affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, JONES and SHORES, JJ., concur.


author: PER CURIAM.

text:
    Brady Otis BYRD, Petitioner, v. STATE of Florida, Respondent.
    No. 58631.
    Supreme Court of Florida.
    May 14, 1981.
    Rehearing Denied June 29, 1981.
    Clinton H. Coulter, Jr. of Duvall & Coulter, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen. and A. S. Johnston and Miguel A. Olivella, Jr., Asst. Attys. Gen., Tallahassee, for respondent.
   PER CURIAM.

Pursuant to article V, section 3(b)(3), Florida Constitution (1972), we accepted jurisdiction to resolve the conflict between the decision of the First District Court of Appeal in the instant case, 380 So.2d 457, and the decision of the Fourth District Court of Appeal in St. John v. State, 363 So.2d 862 (Fla. 4th DCA 1978). We have since resolved the issue in State v. Webb, 398 So.2d 820 (Fla.1981). The decision of the instant district court is in agreement with our decision. We have also considered petitioner's attack on the legality of the instant search and seizure and have determined it to be without merit. Accordingly, the petition for certiorari is denied.

It is so ordered.

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

ADKINS, Acting C. J., dissents.


text:
    William Victor GRUMAN, Appellant, v. BANKERS TRUST COMPANY, a New York corporation and Bankers Trust International, a banking corporation created under the Statutes of the United States of America, Appellees.
    No. 58837.
    Supreme Court of Florida.
    May 21, 1981.
   The Order of this Court dated September 26, 1980, 392 So.2d 1375, Fla., is hereby vacated and the Motion to Dismiss filed by the attorneys for Appellees is granted and it is ordered that the appeal be and the same is hereby dismissed.

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

ADKINS and BOYD, JJ., dissent.


author: PER CURIAM. BOYD, Justice, SUNDBERG, Chief Justice,

text:
    THE FLORIDA BAR, Complainant, v. John L. HARTNETT, Respondent.
    No. 55153.
    Supreme Court of Florida.
    May 21, 1981.

      Anita F. Dahlquist and John A. Boggs, Asst. Staff Counsels, Tallahassee and Jacquelyn S. Plasner, Asst. Staff Counsel, Miami, for complainant.
    John L. Hartnett, in pro. per., for respondent.
   PER CURIAM.

This cause is before us upon the Court’s own Rule to Show Cause why respondent, John L. Hartnett, should not be held in contempt of this Court for failure to comply with the order of February 22, 1979, suspending respondent from the practice of law in Florida. The Florida Bar has presented strong evidence that respondent has actively engaged in the practice of law despite his two-year suspension for the reasons set forth in The Florida Bar v. Hartnett, 368 So.2d 353 (Fla.1979). Respondent did finally appear before this Court in response to the Rule to Show Cause, which is actually the sixth such rule issued by this Court between May 16, 1979, and September 26,1980. Attempted service of the first five rules to show cause failed, and it is clear from the record that respondent has at least on some occasions avoided service of process.

The respondent’s conduct and clear disrespect for this Court cannot be tolerated. Respondent is hereby found in contempt for willfully violating this Court’s order of February 22, 1979, and the discipline earlier imposed is now modified to disbarment, effective immediately.

It is so ordered.

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

BOYD, Justice,

concurs in part and dissents in part:

I concur in the finding of contempt but would extend suspension an additional two years.

SUNDBERG, Chief Justice,

dissents:

I would remand to the circuit court for an evidentiary hearing on the violation of the suspension order and imposition of appropriate sanctions for contempt, if found to have been violated.


text:
    STATE of Florida, Appellant, v. Jeffrey FOXX, Appellee.
    No. 58136.
    Supreme Court of Florida.
    May 21, 1981.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., Janet Reno, State Atty., and Arthur Joel Berger, Asst. State Atty., Miami, for appellant.
    Harry M. Solomon of the Law Offices of Joel Hirschhorn, Miami, for appellee.
   PER CURIAM.

Because the trial court granted defendant’s motion to suppress all evidence subsequent to its declaration of the unconstitutionality of section 893.135, Florida Statutes (1979), and because the state did not appeal the order to suppress which is a controlling disposition of this case, the state’s appeal from the trial court’s order granting defendant’s motion to dismiss is now moot and is therefore dismissed.

It is so ordered.

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

ADKINS and BOYD, JJ., dissent.


author: BOYD, Justice.

text:
    Rupert Don BRYAN, M. D., Appellant, v. STATE BOARD OF MEDICAL EXAMINERS of Florida, Appellee.
    No. 58354.
    Supreme Court of Florida.
    May 21, 1981.
    Louis K. Rosenbloum and D. L. Middle-brooks of Levin, Warfield, Middlebrooks, Mabie & Magie, Pensacola, for appellant.
    Michael I. Schwartz, Tallahassee, for ap-pellee.
   BOYD, Justice.

This cause is before the Court on appeal from a decision of the District Court of Appeal, First District, which passed upon the constitutionality of a state law. Bryan v. State Board of Medical Examiners, 381 So.2d 1122 (Fla. 1st DCA 1979).

The State Board of Medical Examiners instituted disciplinary proceedings against appellant Dr. Rupert Don Bryan pursuant to section 458.1201(l)(p), Florida Statutes (1977). The statute provides:

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

The proceeding was brought because the internal disciplinary procedures of a hospital resulted in the suspension of Dr. Bryan’s operating room privileges. The state board appointed a physician as hearing officer and an informal hearing was held. The board did not present any evidence since Dr. Bryan admitted the disciplinary action the hospital had taken against him.

Dr. Bryan testified concerning the specific charges brought against him by the hospital. The hearing officer found that Dr. Bryan’s practices in testing surgical patients for allergies were below acceptable standards of medical practice. The officer recommended that Dr. Bryan be placed on probation for two years and that he be restrained from utilizing the kinds of testing procedures in question.

The state board remanded the case to the hearing officer to consider the transcript of the hospital’s internal disciplinary proceeding, which was not available at the time of the first hearing. At the second hearing, this transcript was introduced into evidence. In addition, two doctors testified concerning two cases which Dr. Bryan had handled inadequately. The hearing officer modified his report and recommended that Dr. Bryan not be permitted to perform major surgery.

Upon review by the State Board of Medical Examiners, the hearing officer’s recommendation was rejected. Instead the board suspended Dr. Bryan’s license to practice medicine for 180 days during which time he was to participate in a medical education and clinical'training program. Upon completion of the program, Dr. Bryan would be permitted to resume the practice of medicine, but only in a structured, supervised environment. After a probationary period of one year, the board was to reassess the case.

Dr. Bryan appealed the final action of the board, contending, inter alia, that section 458.1201 is an unconstitutional delegation of legislative authority. The district court construed the statute to be valid. Bryan v. State Board of Medical Examiners, 381 So.2d 1122 (Fla. 1st DCA 1979). We adopt that court’s opinion and affirm its decision.

It is so ordered.

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


text:
    STATE of Florida, Appellant, v. Wilfred Ellis PIERPONT, Appellee.
    No. 58423.
    Supreme Court of Florida.
    May 21, 1981.
    Jim Smith, Atty. Gen., and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Roy W. Allman, Fort Lauderdale, for ap-pellee.
   PER CURIAM.

The order of the Circuit Court of the Seventeenth Judicial Circuit granting ap-pellee’s motion to dismiss and declaring section 893.135, Florida Statutes (1979), unconstitutional is reversed, and the cause remanded for further proceedings not inconsistent with State v. Benitez, 395 So.2d 514 (Fla.1981).

It is so ordered.

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


author: OVERTON, Justice. ENGLAND, Justice,

text:
    SOUTH CAROLINA INSURANCE COMPANY, Petitioner, v. Alex KOKAY, as personal representative of the Estate of Christopher Kokay, a minor, deceased, Respondent.
    No. 58830.
    Supreme Court of Florida.
    May 21, 1981.

      Gerald E. Rosser of Corlett, Merritt, Killi-an & Sikes, Miami, for petitioner.
    Philip M. Gerson of the Law Offices of Philip M. Gerson, Miami, for respondent.
    Larry Klein, West Palm Beach, for The Academy Of Florida Trial Lawyers, amicus curiae.
   OVERTON, Justice.

This is a petition for discretionary conflict review of the decision of the Third District Court of Appeal reported as Kokay v. South Carolina Insurance Co., 380 So.2d 489 (Fla.3d DCA 1980). The opinion of the district court recognizes conflict with the decision of the Fourth District Court of Appeal in McLellan v. State Farm Mutual Automobile Insurance Co., 366 So.2d 811 (Fla. 4th DCA 1979). However, other district courts have aligned themselves with the instant decision. See Day v. United States Fidelity & Guaranty Co., 388 So.2d 351 (Fla. 5th DCA 1980); Porter v. State Farm Mutual Automobile Insurance Co., 385 So.2d 1100 (Fla.2d DCA 1980); Stephan v. United States Fidelity & Guaranty Co., 384 So.2d 691 (Fla.2d DCA 1980); Burt v. State Farm Mutual Automobile Insurance Co., 383 So.2d 966 (Fla.1st DCA 1980); Cox v. State Farm Mutual Automobile Insurance Co., 378 So.2d 330 (Fla.2d DCA 1980). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

The issue in conflict concerns the application of the last sentence of the “anti-stacking” statute, section 627.4132, Florida Statutes (1977), which reads in its entirety as follows:

Stacking of coverages prohibited. — If an insured or named insured is protected by any type of motor vehicle insurance policy for liability, uninsured motorist, personal injury protection, or any other coverage, the policy shall provide that the insured or named insured is protected only to the extent of the coverage he has on the vehicle involved in the accident. However, if none of the insured’s or named insured’s vehicles is involved in the accident, coverage is available only to the extent of coverage on any one of the vehicles with applicable coverage. Coverage on any other vehicles shall not be added to or stacked upon that coverage. This section shall not apply to reduce the coverage available by reason of insurance policies insuring different named insureds.

(Emphasis ours.)

The stipulated facts in the instant case reflect that Christopher Kokay, a minor, was killed in an automobile collision resulting from the negligence of an uninsured motorist. At the time he was an additional insured under two separate South Carolina Insurance Company policies, one insuring his father’s car, in which policy the father was the named insured, and the other policy, in which his mother was the named insured, insuring his mother’s car. Christopher was not occupying either of the insured vehicles when he was killed. Each policy had $10,000 uninsured motorist coverage, and damages were stipulated to be in excess of $20,000.

The single issue is whether these two policies could be stacked or whether only one policy applied. The trial court concluded that under section 627.4132 only the $10,-000 limit of one policy was available. The Third District Court of Appeal held: “The entirely clear and totally unambiguous language of the concluding sentence of § 627.-4132 explicitly provides under these facts, the preceding provisions of the section ‘shall not apply to reduce the coverage,’ thus plainly leaving the availability of both policies intact.” 380 So.2d at 491. The district court determined that the last sentence means “just what it says and . .. the statute does not operate to prevent ‘stacking,’ ... when the policies involved have different named insureds.” Id. at 490.

In contrast, the McLellan court prohibited stacking under these circumstances and construed the last sentence to allow selection of coverage under the policy having the highest limits.

We approve the decision of the Third District Court of Appeal in Kokay. We find that, although this statute is not a model of clarity, it should be construed so as to give effect to all sentences and still produce a consistent result.

Under this statute, the key to whether or not two policies may be stacked is simply whether the named insureds for the policies are different or are the same. If the policies have the same named insured, no one covered under both policies, either as named insured or additional insured, may stack the coverages. However, the last sentence allows any person covered under two policies insuring different named insureds to stack these coverages. One may do this whether he is a named insured under one policy and an additional insured under the other or is an additional insured under both policies, as long as the two policies have different named insureds.

We note that the 1980 legislature amended this section by chapter 80-364, Laws of Florida, effective October 1, 1980, which amendment adds before the last sentence the following: “This section shall not apply to uninsured motorist coverage.” That amendment was not involved in this proceeding.

For the reasons expressed, we approve the decision of the Third District Court of Appeal and deny the petition for review.

It is so ordered.

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

ENGLAND, J., concurs with an opinion.

ENGLAND, Justice,

concurring.

I find as interesting as the legal issue here what this case illustrates with respect to the effect on the judicial branch of government of imprecise legislation.

Seven trial judges and seven appellate courts, aggregating twenty-eight judges, have struggled to determine what the last sentence of section 627.4132 must have meant before the provision was amended last year. From their efforts have come a diversity of results, a spate of legal maxims used as tools to discern imprecise wording, and a general state of uncertainty for insureds and insurers. The capstone of this process is the clarion opinion today of another seven jurists which, in light of the 1980 statutory amendment, obviously is of limited application.

I cannot help wondering whether all this judicial activity would not have been avoided by a few more minutes of care and attention in the legislature.


author: OVERTON, Justice.

text:
    THE FLORIDA BAR. Re Donald W. STOBS, Jr.
    No. 59066.
    Supreme Court of Florida.
    May 21, 1981.
    Ronald J. Zeller and Agustín A. Perez, III of Patton, Kanner, Segal, Zeller, King & Kubit, Miami, for petitioner.
    Peter W. Zinober, Chairman, Designation Coordinating Committee of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, and Rayford H. Taylor, Designation Director, Florida Designation Plan, The Florida Bar, Tallahassee, for respondent.
   OVERTON, Justice.

This is a petition by Donald W. Stobs, Jr., a member of The Florida Bar, to review a decision of The Florida Bar Board of Governors denying him redesignation under the Florida Designation Plan as assertedly authorized by article XXI of the Integration Rule. The issue is whether the Board of Governors, without prior approval of this Court, has the authority under the plan to require attorneys to submit “certificates of reference” before they become eligible for redesignation. We have jurisdiction, article V, section 15, Florida Constitution. We answer the question in the negative.

In January, 1976, petitioner designated in the areas of (1) Corporation and Business Law; (2) Taxation; and (3) Wills, Estates, and Estate Planning in accordance with the designation plan approved by this Court. In June of 1979, petitioner submitted an application for redesignation, but refused to submit certificates of reference, as required by the bar. A certificate of reference is a letter of recommendation from another attorney designated in the area for which application is made that certifies that the applicant has substantial experience in the area. The Designation Coordinating Committee advised petitioner that he would not be redesignated without the certificate. Petitioner sought review of this decision and of the certificate requirement before both the Designation Plan Appeals Committee and The Florida Bar Board of Governors. Each denied his request to be excused from the certificate of reference requirement. In its opinion; the appeals committee stated:

The Board of Governors charged with the scope and future development of the Designation Plan has decided that in addition to the submission of a detailed list of seminars or other acceptable courses to justify the thirty hours of Continuing Legal Education requirements, that a Certificate of Reference is a necessary tool to fulfill substantiation of experience in each area.

The opinion further recognized that this Court had not approved the certificate of reference as a specific requirement of the designation plan.

The Board of Governors contends that it has administrative authority to require certificates of reference under Florida Bar Integration Rule, article XXI, and Florida Integration Rule Bylaws, article XVII, sections 4, 5(a), and 9(c), the relevant portions of which provide:

Section 4. ELIGIBILITY FOR PERMISSION TO DESIGNATE AREAS OF PRACTICE.
(a) ... a member in good standing of The Florida Bar may be eligible for permission to designate areas of practice if at the time he files his application: (1) he has been engaged in the practice of law for at least three years and during the three years preceding his application for permission he has had substantial experience in each area of practice listed in the application; and (2) he has accumulated at least the minimum amount of approved continuing legal education ... in each area sought to be designated: . . .
Section 5. APPLICATION FOR DESIGNATION OF AREAS OF PRACTICE, (a) A member who wishes to designate one or more areas of practice shall file with the Board an application for permission on a form to be specified by the Board....
Section 9. DURATION AND RENEWAL.
(c) A member who wishes to renew his right to designate areas of practice shall file an application for renewal with the Board at least 30 days before the permission expires. The application shall be on a form specified by the Board and shall state sufficient facts to establish that the member is eligible to renew....

Florida Bar Integration Rule, article XXI, originally adopted by this Court to approve designation, contained authorization for the bar to “establish a plan allowing members of The Florida Bar to inform the public concerning areas of law practice in which such members have substantial experience or education . . . . ” see In re The Florida Bar, 319 So.2d 1 (Fla.1975). In January, 1978, the Board adopted the following three redesignation requirements: that each applicant (1) submit a description of his experience over at least the previous three years in each area designated, (2) affirm that he reviewed the application and attachments and that all material representations about experience and education were true and correct, and (3) submit a certificate of reference for each area designated.

In March of 1979, this Court, in accordance with The Florida Bar’s request, amended section 9 of the bylaws concerning designation duration and renewal to read in part as follows: “(b) A member shall be eligible to renew his right to designate an area of practice only if during the preceding three-year period he has had substantial experience during the three years preceding the renewal application .... ” See In re Petition to Amend the Bylaws under the Integration Rule of The Florida Bar (Florida Designation Plan), 368 So.2d 1303 (Fla. 1979) (emphasis ours). The Board of Governors argues that the designation plan gives it authority to impose appropriate requirements, such as the certificate requirement, to ensure that the plan’s members have “substantial experience” in their respective specialty areas. We agree that the present integration rule and bylaws given the bar authority to administer the designation plan as approved by this Court. However, neither the original plan nor the amendments thereto made reference to a certificate of reference as a redesignation requisite. The plan was initially presented as a plan for lawyer self-designation with no peer review or examination but with only a mandatory continuing legal education requirement. The absence of the peer review and examination elements distinguished the plan from other types of specialization proposals. See, e. g., Specialization, 48 Fla.B.J. 153 (1974). We conclude that the certificate requirement is a limited type of peer review and is a major policy change from the originally approved designation plan.

Accordingly, we reject the certificate of reference requirement as part of the present plan. In doing so, we do not mean to reject reference certificates as a possible beneficial addition to the plan. The Board may permit the filing of certificates by those who elect to do so. It may not, however, mandate such filings without pri- or approval from this Court, formally sought so as to elicit full discussion of its ramifications and an opportunity for all interested parties to be heard.

The petition for review is granted. The bar is directed to process petitioner’s redes-ignation application without certificates of reference.

It is so ordered.

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


author: ADKINS, Justice. ENGLAND, Justice,

text:
    STATE of Florida, Appellant, v. Billy Lee KINNER, Appellee.
    No. 59167.
    Supreme Court of Florida.
    May 21, 1981.

      Jim Smith, Atty. Gen., and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellee.
    Jonathan P. Rossman, Executive Director, Governor’s Commission on Advocacy for Persons with Developmental Disabilities, Tallahassee, and Albert J. Hadeed, Southern Legal Counsel, Inc., Gainesville, amicus curiae.
   ADKINS, Justice.

This case is here for mandatory review of the decision of the Second District Court of Appeal in the case of Kinner v. State, 382 So.2d 756 (Fla. 2d DCA 1980). The district court found section 393.11, Florida Statutes (1977), unconstitutional. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

On November 14, 1975, appellee was charged with the lewd assault of a child. He was found incompetent to stand trial and was committed to the Division of Mental Health of the Department of Health and Rehabilitative Services. Appellee was adjudicated not guilty by reason of insanity on February 11, 1977. At the commitment hearing, Dr. Coffer, a psychiatrist, testified that appellee’s condition had not changed since he had last examined appellee, which was after the lewd assault charge. Coffer further testified that appellee was severely mentally retarded and could not control his impulses. A clinical psychologist, Gerald Mussenden, perceived a serious personality disorder in appellee. Mussenden also said appellee was functioning as a retarded individual. Mussenden recommended an inpatient treatment facility. A social worker, Roger Wallace, recommended outpatient treatment. Wallace felt that appellee was functionally retarded, but that with proper treatment he might develop skills sufficient to minimally support himself.

By petition dated August 2, 1977, the hospital staff instituted involuntary hospitalization proceedings against appellee under the Baker Act, sections 394.451 — 394.-4781, Florida Statutes (1977). Subsequent to filing the petition the hospital placed appellee on voluntary status, so the petition was denied.

By petition filed on March 9, 1978, the staff of the state hospital sought appellee’s involuntary admission to residential services under the Retardation Prevention and Community Services Act. Appellee was discharged from the Florida State Hospital on April 20, 1978.

On September 21, 1978, the trial court appointed an examining commission of local experts pursuant to section 393.11. A hearing followed at which appellee was committed to the Department of Health and Rehabilitative Services for treatment at a residential retardation facility. Appellee appealed under chapter 393, and for the first time challenged the constitutionality of section 393.11. The Second District Court of Appeal based jurisdiction on fundamental error, and found section 393.11 unconstitutional for failure to provide criteria restricting involuntary commitment to those unable to weigh the risks of freedom and benefits of hospitalization, and to those dangerous to themselves and dangerous to others.

Before we reach the two questions presented for review we must determine whether the matter is moot, and whether it should be decided in view of the amendment of section 393.11 by chapter 80-174, section 3, Laws of Florida, and in view of Mr. Kinner’s release from confinement. It is well established that this Court will not determine a controversy where issues have become moot, unless the questions presented are of general public interest and importance, or unless such judgment as this Court might enter would affect the rights of parties. DeHoff v. Imeson, 153 Fla. 553, 15 So.2d 258 (1943); Sarasota County v. Town of Longboat Key, 343 So.2d 39 (Fla.1977). We feel that this case raises a question of great public importance, the resolution of which will affect a significant number of retarded citizens who are presently institutionalized as a result of the application of the predecessor statute.

We now turn to the two issues presented by this appeal: 1) Whether the district court erred by finding section 393.11 unconstitutional because of insufficient standards restricting involuntary commitment, and 2) Whether appellee’s commitment under section 393.11 was supported by the evidence.

As to the first issue, appellant says that section 393.11 must be read in conjunction with the definitional portion of the statute, specifically section 393.063(22), Florida Statutes (1977). When read together, appellant argues, the sections provide the requisite standards and safeguards with respect to involuntary commitment. We agree. In the case of In Re Beverly, 342 So.2d 481 (Fla.1977), we upheld the constitutionality of section 394.467(l)(a), Florida Statutes (1977). That statute provided, inter alia, that person may be involuntarily hospitalized if he is mentally ill and, because of his illness, is likely to injure himself or others if allowed to remain at liberty. We also held in Beverly that statutes may properly authorize the involuntary commitment of the mentally ill when the term “mentally ill” is given a satisfactory legal meaning. Under the statute at issue in Beverly, the pertinent inquiry was “whether the person is mentally ill and because of his illness, is 1) likely to injure himself or others if allowed to remain at liberty, or 2) is in need of care or treatment and lacks sufficient capacity to make a reasonable application on his own behalf.” 342 So.2d at 485. We find similar safeguards present in the statute under attack.

In addition, we are aware of the strong presumption in favor of the constitutionality of statutes. It is well established that all doubt will be resolved in favor of the constitutionality of a statute, Bonvento v. Board of Public Instruction of Palm Beach County, 194 So.2d 605 (Fla.1967), and that an act will not be declared unconstitutional unless it is determined to be invalid beyond a reasonable doubt. Knight and Wall Co. v. Bryant, 178 So.2d 5 (Fla.1965), cert. denied 383 U.S. 958, 86 S.Ct. 1223, 16 L.Ed.2d 301 (1966).

In light of the similarity of the criteria provided in chapters 393 and 394 and in light of the strong presumption of constitutionality of statutes, we hold that the statute is constitutional.

Mr. Kinner’s release makes the second issue, whether the evidence supported his confinement, moot. We, therefore, need not make a decision as to the findings of fact by the trial court.

The decision of the district court as to the constitutionality of the statute is reversed.

It is so ordered.

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

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

ENGLAND, Justice,

dissenting.

I disagree completely with the majority’s pronouncement that sections 393.11 and 393.063(22), when read together, provide minimally-required standards and safeguards for an involuntary commitment of the mentally retarded.

The state argues that these provisions “implicitly” require a finding of dangerousness to the committed individual or to others. I simply cannot find that implied safeguard in either section 393.063(22), which defines retardation in terms of intelligence and adaptive behavior, or in section 393.11, ■ which requires involuntary commitment to residential services and thereby, allegedly, indicates an inability to function “at large”.

I would affirm the careful decision of the district court.

SUNDBERG, C. J., concurs.

      .§ 393.11, Fla.Stat. (1977), provides in pertinent part:
      393.11 Hearing and order for involuntary admission to residential services; recommendation of examining commission.—
      (2) The hearing and order for involuntary admission shall be conducted and entered in the county in which the person is residing or in the county from which the original admittance was made. The hearing shall be conducted and the order entered according to the following procedure:
      (a) Three persons, one of whom shall be a physician licensed and practicing under chapter 458, shall constitute a petition committee. These persons shall state under oath the name of the person being considered for involuntary admission, his residence, his family conditions, his physical condition, and the nature and extent of his retardation as established by competent evaluation.
      (b) Upon receiving the petition, the court shall immediately appoint an examining commission to examine the person being considered for involuntary admission to residential services of the retardation program of the department. The court shall appoint no fewer than three disinterested experts qualified in the field of mental retardation, including at least one licensed and qualified physician, one licensed and qualified psychologist, and one qualified social worker, to examine the applicant and to testify in person at the hearing on admission to residential care. Members of the commission shall not be employees of the department or be associated with each other in practice or in employer-employee relationships. If there is not a practicing psychologist within the county who meets the above standards, the judge may appoint one additional physician to be a member of the examining commission. Such expert testimony shall include, but not be limited to:
      1. The degree of the applicant’s retardation.
      2. The purpose to be served by residential care.
      3. The appropriate habilitation and treatment.
      Other evidence regarding the appropriateness of the applicant’s admission may be introduced at the hearing by any interested party.
      (c)Hearing on the petition shall be held as soon as practicable after the petition is filed. The applicant shall be physically present throughout the entire proceeding, be represented by counsel, and be provided the right and opportunity to be confronted with, and to cross-examine, all witnesses alleging the appropriateness of his admission to residential care. All evidence shall be presented according to the usual rules of evidence. All stages of each proceeding shall be stenographically reported. The burden of proof shall be on the party alleging the appropriateness of the applicant’s admission to residential care. The burden of proof shall be by clear and convincing evidence. In all cases, the court shall issue findings to support its decision and [state] the bases for such findings.

      (e) If the examining commission finds the examined person to be retarded or developmentally disabled and in need of treatment and rehabilitation within residential services of the retardation program of the department, these findings shall be reported to the court. The department shall then inform the court of all available services for the person. The court may [order the involuntary admission of] the person to residential services of the department. If the evidence presented to the court is not sufficient to warrant involuntary admission to residential services, but the court feels that residential services would be beneficial, the court may recommend that the person seek voluntary admission. The order of involuntary admission to residential care shall be accompanied by the report of the examining commission; shall explicitly document the degree of retardation, the purpose to be served by residential care, and the least restrictive placement for the person; and shall include copies of any other records that may be required by the department. Upon receiving the order and records, the department shall, within 45 days, provide the court with a copy of the person’s habilitation plan outlining treatment and rehabilitative programs and documenting that the person has been placed in the most appropriate, least restrictive, and most cost-beneficial residential facility. (Footnotes omitted.)

      . § 393.063(22), Fla.Stat. (1977), provides:
      “Retardation” means significantly subaver-age general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18. “Significantly subaverage general intellectual functioning,” for the purpose of this definition, means performance which is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the department. “Adaptive behavior,” for the purpose of this definition, means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of his age, cultural group, and community.


text:
    THE FLORIDA BAR, Complainant, v. Irving M. WEISS, Respondent.
    No. 59265.
    Supreme Court of Florida.
    May 21, 1981.
    James P. Hollaway, Deputy Staff Counsel, Tallahassee, Harris K. Solomon, Branch Staff Counsel, Fort Lauderdale and Walter G. Campbell, Jr., Chairman, Seventeenth Judicial Circuit Grievance Committee “E”, Fort Lauderdale, for complainant.
    Irving M. Weiss, in pro. per., for respondent.
   PER CURIAM.

Pursuant to a complaint filed by The Florida Bar against Irving M. Weiss, this Court appointed a referee who held a hearing and made the following report.

I. Summary of Proceedings: Pursuant to the undersigned having been duly appointed as Referee to conduct disciplinary proceedings herein according to article XI, of the Integration Rule of The Florida Bar, a final hearing was held on September 5, 1980.

The following attorneys appeared as Counsel for the parties: For The Florida Bar, Harris K. Solomon; For the Respondent, Pro se.

II. Finding of Fact as to Each Item of Misconduct of which Respondent is charged: After considering all the pleadings and evidence before me, I find:

1) The Respondent, Irving M. Weiss is and at all times hereinafter mentioned was a member of The Florida Bar subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.

COUNT I

2) Respondent was employed by Mr. Craig M. Spengler to represent him in two separate matters.

3) In the first instance, Mr. Spengler employed the Respondent to prepare two contracts.

4) The information relative to drawing the contracts was delivered to the Respondent during April, 1978.

5) Respondent promised delivery of the completed contracts by July 1, 1978.

6) The contracts were not prepared on the promised date.

7) Mr. Spengler picked up his files from Respondent on August 17, 1978 at which time the contracts still had not been completed.

8) As a result of the contracts not being prepared, Mr. Spengler had to forego a lucrative business opportunity.

9) During this same period, on or about May 26, 1978, Mr. Spengler employed the Respondent to file suit in Small Claims Court, the Respondent was paid a $50.00 retainer at this time.

10) In the following months, Mr. Spengler called the Respondent several times, and was informed by the Respondent that the action was filed.

11) On or about August 15, 1978, Mr. Spengler ascertained by checking with the Clerk of the Court that the Respondent had never filed suit on his behalf.

COUNT II

12) In or about January, 1978, the Respondent was employed by Mr. Glenn Wade, President of American Collection Services to effectuate the collection of certain debts.

13) The Respondent received the collection files and their filing fees in two separate groups.

14) The first group of files, approximately 45, were filed and the majority reduced to judgment.

15) Out of the first group, the Respondent has failed to inform Mr. Wade of the status of 18 files.

16) The second group of files, approximately 50, along with filing fees were delivered by the Respondent to the Clerk’s office but were not filed as a result of some minor problem.

17) After bring informed of the problem the Respondent took no action but left the files at the Clerk's office for approximately three months before retrieving them.

18) After retrieving the files, Respondent took no action for an additional four months.

19) In or about August, 1978, after inquiry to the Clerk of the Court, Mr. Wade was informed that none of the second group of cases had been filed.

20) Upon learning that none of the second group of cases had been filed, Mr. Wade secured the return of his files and filing fees from the Respondent, and employed another attorney to handle the files.

COUNT III

21) Respondent received approximately Forty-Four Thousand Eight Hundred Thirty and 00/100 ($44,830.00) from the sale of an asset of Lloyd B. Kruft, now deceased.

22) Respondent deposited those funds in First Federal Savings and Loan Association of Broward County, Account Number 4-95184-5-9.

23) When Respondent withdrew those funds, the principal and interest amounted to approximately Forty-Eight Thousand and 00/100 Dollars ($48,000.00).

24) Respondent expended all of the funds.

25) Respondent did not expend the funds for the purpose authorized by either of the co-personal representatives of the Estate of Lloyd B. Kruft.

26) The Estate of Lloyd B. Kruft did not receive any beneficial interest from the expenditure of the funds.

27) Respondent has repaid $40,000 of the current debt plus interest and attorney’s fees to his client. Respondent still owes the estate approximately $15,000.00.

COUNT IV

28) Mrs. Frances Dorough retained Respondent to represent her in a friendly foreclosure action against Mr. Richard Naugle.

29) One year later, Respondent had still not completed the foreclosure.

30) Mrs. Dorough and Mr. Naugle agreed to terminate the proceeding and Mr. Naugle agreed to pay the purchase price plus interest.

31) On or about August 24, 1978, Mr. Naugle or his attorney delivered a check in the amount of Twenty Nine Thousand Eight Hundred Ninety-Three and .63/100 ($29,893.63) to Respondent and payable to Respondent’s trust account.

32) Between August 24,1978 and October 31, 1978, Mrs. Dorough repeatedly asked Respondent if he received any money in her behalf.

33) Respondent told Mrs. Dorough the deal was not yet closed.

34) On October 31, 1978, Mrs. Dorough spoke to Mr. Naugle and learned that Respondent had received the $29,893.63 in August.

35) Mrs. Dorough then went to Respondent and asked him to give her the money he was supposed to be holding in trust for her.

36) Respondent told her he did not have the money but he would go to New York and get it.

37) Respondent subsequently gave Mrs. Dorough two checks in the amounts of Seven Hundred Forty-Six and .63/100 Dollars ($746.63) and Twenty Eight Thousand and 00/100 ($28,000.00).

38) The check for $28,000.00 was drawn on a West Indies bank and was returned for insufficient funds six weeks later.

39) On December 29, 1978, Respondent gave Mrs. Dorough a check drawn on a local bank in the amount of $28,000.00. This check was cashed by Mrs. Dorough.

III.Recommendation as to Whether or not the Respondent should be Found Guilty:

COUNT I

I recommend that Respondent be found guilty of violating Florida Bar Code of Professional Responsibility D.R. 1-102(A)(4), 6-101(A)(3), 7-101(A)(2) and (3).

COUNT II

I recommend that Respondent be found guilty of violating Florida Bar Code of Professional Responsibility D.R. 6-101(A)(3), 7-101(A)(2) and (3), and 9-102(B)(1) and (4).

COUNT III

I recommend that Respondent be found guilty of violating Florida Bar Code of Professional Responsibility D.R. 7-101(A) and 9-102(B).

COUNT IV

I recommend that Respondent be found guilty of violating Florida Bar Code of Professional Responsibility D.R. 9-102(B) and Florida Bar Integration Rule, article XI, Rule 11.02(4).

IV. Recommendation as to Disciplinary Measures to be Applied:

Based on the above findings of fact, I recommend that Respondent be disbarred from The Florida Bar.

1) However in light of the circumstances enumerated below, I recommend that Respondent’s three year minimum period of disbarment begin to run from September 20, 1979, the effective date of the Supreme Court of Florida’s order temporarily suspending Respondent.

2) I found the following circumstances sufficiently extenuating to recommend that Respondent be given credit, toward the three year minimum period of disbarment, for the year he has been temporarily suspended:

a) Respondent has fully cooperated with The Florida Bar’s investigation and prosecution of these complaints.

b) Respondent was candid with the referee at the final hearing and appeared contrite due to his misconduct.

c) Respondent stated that he has eliminated the drug dependency problem that he has had for several years.

V. Personal History and Past Disciplinary Record:

After the finding of guilty and prior to recommending discipline to be recommended pursuant to Rule 11.06(9)(a)(4), I considered the following personal history and prior disciplinary record of the Respondent, to wit: date admitted to Bar: May, 1974; prior disciplinary convictions and disciplinary measures imposed therein: none; other personal data: none.

We approve and adopt the findings and recommendations of the referee. Respondent is hereby disbarred from practicing law in the State of Florida, effective retroactively to September 20, 1979. Respondent is directed to pay the costs of these proceedings in the amount of $2,937.58.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Julian E. HARRISON, Respondent.
    No. 59629.
    Supreme Court of Florida.
    May 21, 1981.
    Stanley A. Spring, Staff Counsel, Tallahassee, David G. McGunegle, Bar Counsel, Orlando, and Wallace Dunn, Chairman, Fifth Judicial Circuit Grievance Committee “B”, Dunnellon, for complainant.
    Julian E. Harrison, in pro. per.
   PER CURIAM.

In this disciplinary proceeding against respondent as a member of The Florida Bar the referee in part made the following findings and recommendations:

Following respondent’s plea of guilty to both Count I and Count II of the complaint, the undersigned took testimony and heard argument. The evidence established that the respondent had been involved in a prior disciplinary matter involving neglect of legal matters entrusted to him. A private reprimand resulted in that disciplinary proceeding.
The respondent was employed to bring suit against his client’s former tenants for back rent and damages to rental property. The client paid respondent a retainer fee. The respondent neither prepared nor filed a suit on behalf of his client and then compounded his neglect by misrepresenting to his client that a trial date had been obtained when in fact, as indicated, he had never filed a suit. This conduct constitutes, as has been admitted, a violation of Disciplinary Rules 1-101(A)(4), 6-101(A)(3) and 7-101(A)(2). Additionally the respondent failed to handle cost monies advanced to him by clients through an appropriate trust account and the respondent has admitted, in this connection, a violation of Article XI, Rule 11.02(4)(c) of the Integration Rule of The Florida Bar, the corresponding bylaws, as well as Disciplinary Rule 9-102(a) of The Florida Bar’s Code of Professional Responsibility.
The respondent made a refund to the client referred to in Count I of the retainer fee advanced to him, with interest. No misappropriation of funds has been charged either in the matter presently pending or in any prior disciplinary proceeding.
The respondent was admitted to The Florida Bar in 1972. He closed his private practice of law several months ago and is presently employed as Assistant Public Defender in the Fifth Judicial Circuit of this state. He indicated an intention to remain out of private practice for at least four years.
The Florida Bar, through counsel, recommended a penalty in the form of court-ordered private reprimand. The undersigned finds this to be an unacceptable penalty in the light of the prior disciplinary measure taken against the respondent which resulted in a private reprimand and the seriousness of the present charges.
It is, therefore, the recommendation of the undersigned Judicial Referee that the respondent, Julian E. Harrison, be publicly reprimanded for the violations set forth in the complaint and that, additionally, costs in the amount of $303.80 be assessed against the respondent.
Dated in the Chambers of the undersigned this 25th day of November, 1980.
* * * * * *

The report and recommendations of the referee are adopted. Respondent is publicly reprimanded by this order and he is directed to pay the costs of this proceeding in the amount of $303.80.

It is so ordered.

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


author: PER CURIAM. BOYD, J.:

text:
    THE FLORIDA BAR, Complainant, v. Joe MILLS, Jr., Respondent.
    No. 58675.
    Supreme Court of Florida.
    May 28, 1981.
    H. Glenn Boggs, Asst. Staff Counsel, UPL, Tallahassee, Ronald R. Richmond, Chairman, Standing Committee on Unauthorized Practice of Law, New Port Richey, and C. Clyde Atkins, Jr., Bar Counsel of Musleh, Bond, Arnett, Atkins & Krehl, Oca-la, for complainant.
    Joe Mills, Jr., in pro. per.
   PER CURIAM.

This is a proceeding, on a complaint of The Florida Bar against Joe Mills, Jr., contending he has engaged in the unauthorized practice of law. This Court appointed the Honorable Wallace E. Sturgis, Jr., as referee to conduct a hearing. Judge Sturgis found that the respondent, a nonlawyer, prepared articles of incorporation for a client who was damaged by that work. Drafting articles of incorporation is the practice of law. The Florida Bar v. Fuentes, 190 So.2d 748 (Fla.1966); The Florida Bar v. Keehley, 190 So.2d 173 (Fla. 1966); The Florida Bar v. Town, 174 So.2d 395 (Fla.1965).

The referee recommended:

1. The referee recommends that the respondent, Joe Mills, Jr., be enjoined “ . .. from forming corporations for others, including the preparation of charters, by-laws, resolutions, and other documents incidental to the contractual rights of the corporation, its incorporators, and stockholders, and from advising others in respect thereto.” (See The Florida Bar v. Town, 174 So.2d 395 (Fla.1965).
2. The referee recommends that the respondent, Joe Mills, Jr., be found guilty of indirect criminal contempt of the Supreme Court for violation of the Court’s rule against unauthorized practice of law by the respondent’s act of preparing the Articles of Incorporation for Ed’s Auto Supply, Inc.
3. The referee recommends that the Supreme Court withhold the imposition of any fine or imprisonment under the finding of guilty of indirect criminal contempt.
4. The referee recommends that the Supreme Court assess the costs of this proceeding against the respondent, such costs in the amount to be determined by appropriate affidavit to be submitted to the referee by the petitioner and forwarded to the Supreme Court for final approval.

We approve and adopt these recommendations as the order of this Court. The costs required to be paid are $361.51.

It is so ordered.

SUNDBERG, C. J., and ADKINS, OVER-TON and McDONALD, JJ.„ concur.

BOYD, J.:

I would enjoin respondent from practicing law and require payment of costs but I would not find him guilty of indirect criminal contempt.


text:
    STATE of Florida, Appellant, v. Jeffrey STRICKLAND, Paul Rice, Emil Lewis Bocz, Mary Lou Blalock, and Michael Coy Blalock, Appellees.
    No. 58736.
    Supreme Court of Florida.
    May 28, 1981.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, and Curtis A. Golden, State Atty., and Thomas M. Berrigan, Asst. State Atty., Pensacola, for appellant.
    J. B. Murphy, Pensacola, for Jeffrey Strickland.
    William B. Richbourg, Pensacola, for Emil Lewis Bocz.
    Larry G. Turner, Gainesville, for. Mary Lou Blalock and Michael Coy Blalock.
   PER CURIAM.

Appellant’s motion to vacate the order of the Circuit Court of the First Judicial Circuit, which order granted appellees’ motion to dismiss, is granted and the cause is remanded to the trial court for further proceedings not inconsistent with State v. Benitez, 395 So.2d 514 (Fla.1981), and State v. Yu, 400 So.2d 762 (Fla.1981).

It is so ordered.

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


text:
    LaPOINTE OUTDOOR ADVERTISING, Petitioner, v. FLORIDA DEPARTMENT OF TRANSPORTATION, Respondent.
    No. 59293.
    Supreme Court of Florida.
    May 28, 1981.
    Robert D. Korner of Korner & O’Brien, Coral Gables, for petitioner.
    Margaret-Ray Kemper, Appellate Atty., Philip S. Bennett, Trial Atty., and H. Reynolds Sampson, Gen. Counsel, Tallahassee, for respondent.
   OVERTON, Justice.

This is a petition to review a decision of the Fourth District Court of Appeal reported at 382 So.2d 1347 (Fla. 4th DCA 1980), in which the court held that the Department of Transportation need not compensate the owner of a billboard sign under section 479.-24, Florida Statutes (1977), for requiring the sign’s removal for violation of section 479.02(1), Florida Statutes (1977). The First District Court of Appeal, in Brazil v. Division of Administration, State Department of Transportation, 347 So.2d 755 (Fla. 1st DCA 1977), has held to the contrary. We have jurisdiction to resolve the conflict. We hold that no compensation is necessary and approve the instant decision of the Fourth District Court of Appeal.

The relevant facts reflect that in early July of 1976, LaPointe Outdoor Advertising obtained a county building permit to construct a billboard sign alongside Interstate Highway 95 in Palm Beach County. La-Pointe similarly applied for a Florida Department of Transportation (DOT) permit which was also prerequisite to the sign’s construction. DOT did not process the application immediately, and LaPointe, without obtaining the permit, nevertheless began construction on its proposed sign. Subsequent to the billboard’s completion, DOT informed LaPointe that its application had been denied because another firm had made application prior to LaPointe for a billboard within 1000 feet of the location that La-Pointe had chosen. The Highway Beautification Act of 1965, 23 U.S.C. § 131 (1976), requires 1000-foot spacing between billboards located on federal highways; DOT is charged with enforcing this provision. DOT thereafter cited LaPointe for violation of section 479.02, erecting a sign within 1000 feet of a permitted sign, and section 479.07(1), erecting a sign without a valid permit, and ordered the billboard’s removal. The Fourth District affirmed DOT’s final order.

The question presented for our review is whether section 479.24(1) requires that the state compensate LaPointe for its sign. That section provides:

479.24 Compensation for removal of signs; eminent domain; exceptions.—
(1) Compensation shall be paid upon the removal of all signs lawfully in existence on December 8, 1971 or signs lawfully erected which later become nonconforming. Compensation for any sign erected or completed after December 8, 1971 shall be limited to the actual replacement value of the materials in such sign. It is the legislative intent that any person erecting or completing such a sign after December 8, 1971 shall be fully compensated by the method herein provided.

The First District Court of Appeal considered the same issue in Brazil v. Division of Administration, State Department of Transportation. In Brazil, as in the instant case, an outdoor advertiser had erected a billboard which violated the Beautification Act’s 1000-foot spacing provision. Also as in the instant case, DOT had ordered the sign’s removal. DOT denied compensation for the sign, contending that because section 479.24(1) provided “Compensation shall be paid upon the removal of all signs lawfully in existence on December 8, 1971 or signs lawfully erected which later become nonconforming” and because the subject sign had not been lawfully erected, no compensation was owing. On appeal, the Brazil court agreed that the billboard’s removal was in order but held that the advertiser was entitled to compensation. 347 So.2d at 758. The court acknowledged DOT’s position but pointed out that the statute also provided: “Compensation for any sign erected or completed after December 8, 1971, shall be limited to the actual replacement value of the materials in such sign.” Id. The court held that the latter sentence rendered the statute ambiguous as to when compensation was owing and as to when it was not. Reading the provision in the light most favorable to the sign owner, the court awarded compensation for the cost of the sign’s materials.

Conversely, when considering the issue in the instant case, the Fourth District Court of Appeal held that the statute did not require compensation. The court found the controlling portion of section 479.24 to be the “lawfully in existence” language and concluded that “[compensation for removal of a sign erected in violation of the law essentially condones the initial unlawful act and totally ignores the first sentence of Section 479.24(1).” 382 So.2d at 1349.

We fully agree with the Fourth District Court’s conclusion and find that section 479.24 is not ambiguous and does not require compensation for nonconforming, unlawfully erected billboards mandatorily removed by DOT order. Our decision is totally consistent with the legislative intent behind section 479.24. We consequently approve the instant district court decision and disapprove the decision of the First District in Brazil.

It is so ordered.

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

      . Art. V, § 3(b)(3), Fla.Const.

      . Section 479.02(1) provides:
      479.02 Enforcement of provisions by department. — It shall be the function and duty of the department to:
      (1) Administer and enforce the provisions of this chapter including, but not limited to, executing agreements in conjunction with the Governor in accordance with title I of the Highway Beautification Act of 1965 and Title 23, U.S. Code;
      The Governor and the United States Secretary of Transportation entered into an agreement on January 27, 1972, section III, B. of which provides in part: “No two [signs] shall be spaced less than one thousand (1,000) feet apart on the same side of the highway facing the same direction.” See Fla.Admin.Code ch. 14- 10.09, at 32G.

      . We note that the First District had the opportunity to review its decision in Brazil in Henderson Sign Serv. v. Department of Transp., 390 So.2d 159 (Fla. 1st DCA 1980), but declined to consider the compensation issue directing DOT to await the outcome and abide by the decision of this Court in the instant case.


text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY, a Foreign Corporation, Petitioner, v. Michael DAY, Respondent.
    No. 59837.
    Supreme Court of Florida.
    May 28, 1981.
    Monroe E. McDonald of Sanders, McE-wan, Mims & McDonald, Orlando, for petitioner.
    Michael Maher and Herbert H. Hall, Jr. of Maher, Overchuck, Langa & Cate, Orlando, for respondent.
   PER CURIAM.

The petition for review of the decision of the District Court of Appeal, Fifth District, in Day v. United States Fidelity and Guaranty Co., 388 So.2d 351 (Fla. 5th DCA 1980), is denied on the authority of South Carolina Insurance Co. v. Kokay, 398 So.2d 1355, (Fla.1981).

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. James M. BARCLAY, Respondent.
    No. 60499.
    Supreme Court of Florida.
    May 28, 1981.
    John F. Harkness, Jr., Executive Director, and Stanley A. Spring, Staff Counsel, Tallahassee, and Cynthia S. Prettyman, Asst. Branch Staff Counsel, Fort Lauder-dale, for complainant.
    James M. Barclay, in pro. per.
   PER CURIAM.

This matter is before the Court on petition for approval of conditional guilty plea to consent judgment and entry of final order of discipline to violations of disciplinary rules prohibiting the charging of excessive fees, conduct which adversely reflects on a lawyer’s fitness to practice law, and conduct of a dishonest or immoral character. We approve the petition, and we hereby reprimand respondent, James M. Barclay, for these violations. Publication of this order in Southern Reporter shall serve as respondent’s public reprimand.

Costs in the amount of $318.05 are hereby taxed against the respondent.

It is so ordered.

ADKINS, Acting Chief Justice, BOYD, OVERTON, ENGLAND and McDONALD, JJ., concur.

       The applicable provisions are Fla. Bar Code Prof. Resp. D.R. 1-102(A)(6), 2-106(A), (B)(1) and (4), and Fla. Bar Integr. Rule, art. XI, rule 11.02(3)(a).


text:
    THE FLORIDA BAR, Complainant, v. Robert H. WIGGINS, Respondent.
    No. 60501.
    Supreme Court of Florida.
    May 28, 1981.
    John F. Harkness, Jr., Executive Director, and Stanley A. Spring, Staff Counsel, Tallahassee, and Cynthia S. Prettyman, Asst. Branch Staff Counsel, Fort Lauder-dale, for complainant.
    Joseph A. Varón, Hollywood, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea to Consent Judgment and Entry of Final Order of Discipline to violations of Disciplinary Rules 1-102(A)(4); 1-102(A)(5); 2-103(A); 2-104; and Florida Bar Integration Rule, article XI, Rule 11.02(5). We approve the Petition, and Respondent Robert H. Wiggins is hereby suspended from the practice of law for a period of three months and one day. In addition, proof of rehabilitation shall be required for reinstatement. This suspension shall be effective June 29, 1981, thereby giving Respondent thirty (30) days to close out his practice and take the necessary steps to protect his clients. Respondent shall not accept any new business.

Costs in the amount of $573.50 are hereby taxed against the Respondent.

It is so ordered.

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