author: PER CURIAM.

text:
    Carl Elson SHRINER, Appellant, v. STATE of Florida, Appellee.
    No. 51749.
    Supreme Court of Florida.
    May 22, 1980.
    Rehearing Denied Aug. 27, 1980.

      Daniel T. O’Connell of O’Connell & Hul-slander, Gainesville, for appellant.
    Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   PER CURIAM.

Appellant, Carl Elson Shriner, was convicted of one count of murder in the first degree. The jury recommended and the trial judge imposed a sentence of death. Jurisdiction vests in this Court pursuant to article V, section 3(b)(1), Florida Constitution. We affirm the conviction and sentence.

The following facts came to light at trial. At approximately 1:30 a. m. on Friday, October 22, 1977, two young women entered a Gainesville convenience store (Majik Market). Two other persons were in the store at that time, the store clerk, Judith Carter, and a male customer. The women made their purchases ahead of the male customer and departed. The man was in his mid-twenties, of medium height, slender; he had a receding hairline, medium to dark brown collar-length hair, dark eyes, a mustache and a three-to-four-day-old beard.

At 6:15 a. m. the same morning, James Grills went into the Majik Market and discovered the dead body of Judith Carter. He summoned police who arrived at about 6:30 a. m. Gainesville police investigator Mason photographed the scene and recovered three projectiles from the store. Associate district medical examiner Clark later recovered two projectiles from the body.

Alachua County deputy sheriff Denson went on duty Saturday at 3:30 p. m., October 23, 1976, and received a be-on-lookout bulletin (BOLO) with a written description and two composite sketches attached. The description and sketches were based in part on information obtained from the two young women at the Majik Market and on an eyewitness account of an armed robbery which took place early Friday morning at an 8 Days Inn. At 4:00 p. m. that Saturday, deputy Denson stopped opposite a car at a stop sign. The passenger in the car matched the description in the BOLO. Denson stopped the car, advised the passenger of his Miranda rights and asked him some questions. After learning that the passenger had recently been released from prison, Denson took him into custody. The passenger was Carl Shriner.

Upon arrival at the Alachua County sheriff headquarters, detectives readvised appellant of his Miranda rights. Appellant signed in four separate places a form constituting an acknowledgment of understanding of Miranda rights, a waiver of the right to have an attorney present during questioning, a consent to be interviewed and a consent to make a statement. Shriner gave his local address as 1223 Northeast Eighteenth Avenue, where he and Carol Griffis lived at the home of John and Nancy Rapp. John Rapp was the driver of the car in which appellant was apprehended. Shriner had an Arizona driver’s license bearing the name Carl Elson Shriner and the address 514 W. Buist, Phoenix, Arizona, and $338 in his wallet.

A gunman robbed the 8 Days Inn in Gainesville at about 3:00 a. m. Friday, October 22, 1976, under the following circumstances. While waiting for the security guard to leave the immediate area, a man asked the clerk for a room and filled out a guest registration form. He robbed the clerk and took the form with him, but not before the clerk had removed two of the five copies. It was signed “Rob E. Williams, 514 W. Buist, Phoenix, Ariz.” The motel clerk identified appellant as the culprit in a photo lineup and at trial.

At the sheriff’s office appellant signed a written consent to search the portion of the Rapp residence occupied by him. After John and Nancy Rapp consented in writing to a search of the remainder of their home, the police discovered a Smith and Wesson .38 caliber revolver hidden in a chair in the Rapp children’s living room. FBI firearms identification expert Bollenbach took possession of the gun and the five projectiles found in the Majik Market and determined conclusively that the projectiles were fired from that gun.

Appellant was taken to the Gainesville Police Department at 7:30 p. m., Saturday, October 23, 1976. He signed a waiver and consent form after being readvised of his Miranda rights. Numerous law enforcement officers and an assistant state attorney participated in the ensuing interrogation, which continued from 9:00 p. m. until 2:45 a. m. the following morning. Appellant first offered to Sergeant Blitch a number of inconsistent accounts of his knowledge of the murder and confessed only to the 8 Days Inn robbery. At approximately 1:00 a. m. Sunday, October 24, 1976, during questioning by assistant state attorney Ni-lón and with Blitch out of the room, Shriner made some equivocal statements evincing an apparent desire to terminate questioning about the 8 Days Inn robbery. Nilón proceeded to other subjects and the interrogation continued. At 2:00 a. m., with Sergeant Blitch present, appellant confessed to the murder of Judith Carter.

Appellant presents a plethora of issues for our consideration, several of which do not merit discussion. His first colorable contention is that his arrest was illegal because of a lack of probable cause. We disagree. A law enforcement officer has probable cause to arrest if he has reasonable grounds to believe that the person arrested has committed a felony. State v. Outten, 206 So.2d 392, 397 (Fla.1968). The facts constituting probable cause need not meet the standard of conclusiveness and probability required of the circumstantial facts upon which a conviction must be based. Id. Here, the sketches attached to the police BOLO bore a striking resemblance to appellant, thus furnishing deputy Denson with reasonable grounds to believe that appellant had committed the robberies.

Of considerably greater difficulty is whether, although otherwise voluntary, Shriner’s confession must be suppressed because of his claim that the police persisted in questioning him after he indicated an unwillingness to answer questions on a particular subject. Appellant relies upon the following language in Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 1627-1628, 16 L.Ed.2d 694:

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. [Footnote omitted.]

Miranda required exclusion of any statements stemming from custodial interrogation unless the prosecution demonstrated compliance with its specific prophylactic safeguards. If law enforcement officers fail to give the specified warnings before interrogation or fail to follow the Miranda guidelines during interrogation, the statement thus derived may be suppressed, even though otherwise “wholly voluntary.” Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974).

In Michigan v. Mosley, police questioning was held proper even though the accused had earlier indicated his desire to remain silent. The Supreme Court rejected a strict rule which would totally preclude all further custodial interrogation. At the same time it observed that to construe Miranda to require only a pause in questioning, with a resumption of interrogation after only a momentary respite, would effectively undermine the will of the accused:

Clearly, therefore, neither this passage nor any other passage in the Miranda opinion can sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent.
A reasonable and faithful interpretation of the Miranda opinion must rest on the intention of the Court in that case to adopt “fully effective means to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored . . .” 384 U.S., at 479, 86 S.Ct. at 1630. The critical safeguard identified in the passage at issue is a person’s “right to cut off questioning.” Id., at 474, 86 S.Ct. at 1627. Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person’s exercise of that option counteracts the coercive pressures of the custodial setting. We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his “right to cut off questioning” was “scrupulously honored.”

423 U.S. at 102-04, 96 S.Ct. at 326 (Footnotes omitted).

Turning to the facts here, it appears that during interrogation by assistant state attorney James Nilón, Shriner indicated a desire to stop talking about the 8 Days Inn robbery. At the hearing on the motion to suppress Nilón described the episode in this way:

Direction Examination:
Q. During any of that period of time that you were in his presence did he ever ask to have an attorney present?
A. No, sir, he did not.
Q. Did he ever ask to stop talking or remain silent?
A. Yes, to a certain extent. What he did, in the first conversation that I had with him after Investigator Blitch had left the room, particularly in reference to the 8 Days Inn robbery, he told me certain things that had happened in the 8 Days Inn robbery and when I asked him particularly about the gun that he used in the 8 Days Inn robbery he said to me something to the effect, “Well, right now it’s like I’m crazy. It’s like I’m nuts.” I said, “Well, Mr. Shriner .” I don’t remember what I said, but I said, “It’s not like you mean you are insane.” He said, “No.” I said, “You mean you don’t want to answer any more questions?” And he said, “Yes.” I just sat there for a minute. I think at that point I asked him something about his family background and he answered that, and that’s the only time I can think of he even alluded to the fact that he didn’t want to answer any questions or make any further statements or anything.

TH 100-101.

Cross-Examination:
Q. All right. Let me go back to one of the statements that Mr. Shriner is giving — and it was kind of at the end of Mr. Hebert’s direct examination— you said that during one of the times you were talking to Mr. Shriner concerning the weapon or the gun, he made the statement to you something about, “I’m crazy” or “Stop. I’m crazy.”
A. Yes, sir.
Q. Kind of vague. We are not sure as to the terminology that was used. The word crazy was used, though.
A. Crazy or nuts. It’s like I’m crazy or nuts.” And I interpreted that to mean, “It’s like I’m not really nuts, but for your sake and, you know, in answering these questions, further questions, it’s like I’m nuts to you.”
Q. Was he saying he was just getting confused or tired?
A. My impression was that he was saying, like, from now on out as far as concerning the gun and specifics of the 8 Days Inn robbery, it was like he was insane, that, you know, the answers would be like a crazy man. I got the impression he was saying, “Don’t bother asking me any more questions about that.”
Q. I believe you said on direct examination — did he say, “I don’t want to answer any more questions”?
A. He never told me specifically like, “I don’t want to answer any more questions,” that I can remember.
Q. Did you get the impression he didn’t want to answer any more questions?
A. About that part of the incident, yes, about the 8 Days Inn and where he got the gun and things of that na-' ture and any more specifics, yes, but then we sat there for a minute or two and I asked him some other questions. I think it was about his personal .
Q. About his family and personal things.
A. Yes, and he just answered and we started another conversation and he had no problem.

TH 107-108.

At trial Mr. Nilón offered this account:

Cross-Examination:
Q. At the point in time that you are talking to him now concerning the Eight Days Inn, I believe there was a little incident that took place, and you are talking to Mr. Shriner, and I believe that Mr. Shriner seemed to indicate to you that he did not want to talk, he was having problems. My understanding is did he use the words “I am crazy” or “I am having problems”. Do you remember the thing that I am talking about?
A. Yes, I do.
Q. Okay. There was some problem at this point in time, was there not, in the interview room, that existed between Mr. Shriner and yourself as to this interrogation?
A. I don’t know what you mean by a problem. There was a point in time that he made some of the statement that you are talking about.
Q. Can you be more specific about that, please?
A. Yes, I can. I had gotten some information from one of the investigators, and I can’t tell you which one because there were a number of them, prior to going into the room concerning a piece of paper, I think it was a registration that the person who had committed the robbery had signed before he or as he was pulling the robbery giving an Arizona address. I started questioning Mr. Shriner about signing the registration and did he sign his address or his parents’ address, and he, I don’t want to say smile, but he had kind of a smirk or a grin on his face and said that “I am crazy.” I said, “Do you mean by that that you are actually, you know, out of your mind or crazy?” And I don’t remember whether he answered that or not.
I said, “Well you mean you don’t want to answer any more questions about that?” And he said, “Yeah.”
Q. Okay. But there was some problem at this point in time, he did not want to talk about it?
MR. HEBERT [state attorney]: The State objects, Your Honor. The words speak for themselves. What counsel calls a problem, the witness has already said that he doesn’t know what that means but he is telling what happened.
MR. KEARNS [defense counsel]: I will rephrase the question, Your Honor.
THE COURT: The objection is moot by the question being withdrawn.
BY MR. KEARNS:
Q. He did not want to talk about that particular area, did he?
A. No, he did not.
Q. Now, based upon that response, did you inquire as to whether or not he wished to continue?
A. No, sir. At that point in time there was about a minute or two lull or lapse and that is when I started talking about personal things.
Q. Okay. Then you started going on about this personal family things?
A. Yes. At that point in time, during those conversations, I really termi- ' nated conversations about any offenses.

TT 720-722.

Redirect Examination:
Q. Now, you mentioned that he mentioned to you that he didn’t want to talk about it, he gave you an impression that he didn’t want to talk about the specifics of the folio. Did he have any objections about going on and talking about other things?
A. Specific — I am sorry, I didn’t understand.
Q. All right. Mr. Kearns talked about the thing called problems sometime—
A. Yes.
Q. —where the defendant said or you asked him about the folio, signing it, and he said, “I am nuts,” and you said, “You just don’t want to talk about it any more.” You didn’t talk to him any more about the folio; is that correct?
A. No, I dropped that subject.
Q. Okay. Did he have any problem talking about anything else?
A. No, sir.
Q. Did he ever say that he didn’t want to talk about anything else?
A. No, sir.
Q. Did he freely and voluntarily answer other questions that you asked him?
A. Yes, sir. As I stated before, there was about a minute or two lull period where we just sat there and I said— well, I might have started something like, “Carl, where are you from?” And then we started about personal matters that I have already testified to.
Q. All right. Now, during that time when he was making the admissions of guilt to you, “I shot her, why I shot her,” did he ever stop or tell you that he wanted to stop talking about it?
A. No, sir.
Q. Or that he wanted a lawyer? ■
A. No, sir.

TT 727-28.

Appellant testified in his own behalf at the motion to suppress but made no mention of any desire to terminate questioning.

We are satisfied that, based on Mr. Nilon’s testimony and the absence of rebuttal evidence to the contrary, the trial judge correctly concluded that appellant wanted to terminate questioning only insofar as it related to the 8 Days Inn robbery. We are similarly satisfied that Mr. Nilón respected appellant’s partial exercise of his Miranda privilege and restricted further questioning to other areas. Given this posture, the police did not run afoul of Miranda and Mosley by continuing the interrogation:

When a person in custody has responded to proper police interrogation by voicing a general willingness to talk, subject only to a limited desire for silence, and his wishes not to discuss a particular subject-matter area are respected, nothing rooted in law or constitutional policy makes it improper to question him as to any unlimited subjects.

United States v. Vasquez, 476 F.2d 730, 732-33 (5th Cir. 1973); accord, Smith v. United States, 505 F.2d 824 (6th Cir. 1974); United States v. Matthews, 417 F.Supp. 813 (E.D.Pa.), aff’d., 547 F.2d 1165 (3d Cir. 1976), cert. denied, 429 U.S. 1111, 97 S.Ct. 1148, 51 L.Ed.2d 565 (1977).

Hence, appellant’s confession was properly admitted at trial.

Appellant next asserts error in the admission of evidence relating to the 8 Days Inn robbery. He properly cites Williams v. State, 117 So.2d 473 (Fla.1960), for the proposition that evidence of other crimes is inadmissible if offered solely for the purpose of showing bad character or propensity. However, Williams does permit evidence of other crimes

if it casts light on the character of the act under investigation by showing either motive, intent, absence of mistake, common scheme, identity or a system or general pattern of criminality so that the evidence of such other crimes would have a relevant or material bearing upon some essential aspect of the offense then being tried.

Ashley v. State, 265 So.2d 685, 693 (Fla.1972).

Relevancy is the test; if the proffered evidence is relevant for any purpose other than to show bad character or propensity, it should be admitted. Id.

We concur in the trial judge’s ruling that evidence of the 8 Days Inn robbery was admissible to prove identity. The following facts adduced at trial make apparent the relevancy of this evidence: (1) police found a .38 caliber gun and cartridges in appellant’s residence; (2) ballistics expert Bollenbach identified the gun found in appellant’s residence as the murder weapon; (3) at 3:00 a. m., only ninety minutes after Judith Carter’s murder, a man robbed the 8 Days Inn. The hotel clerk identified appellant as the culprit and testified that the gun used in the robbery closely resembled the murder weapon. Thus, the evidence of the 8 Days Inn robbery, if believed by the jury, places the murder weapon in the hands of appellant within ninety minutes of Judith Carter’s demise. Such evidence is clearly probative of the murderer’s identity.

The remaining issues involve the sentencing phase of the trial. Appellant’s constitutional attack on the death penalty has been thoroughly canvassed in prior decisions and found groundless. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Alford v. State, 307 So.2d 433 (Fla.1975), cert. denied, 428 U.S. 912, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976); 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). Equally meritless is the contention that it was error to exclude the testimony of a priest who had witnessed an execution by electrocution. While it is settled that an advisory jury and trial judge may consider evidence of mitigating factors beyond those enumerated in section 921.141(6), Florida Statutes (1977), the evidence must be relevant to the sentencing inquiry. We do not believe that a descriptive account of an electrocution would aid the jury or judge in their effort to apply section 921.141 fairly and correctly. Indeed, such evidence would more likely serve to distort and obfuscate the sentencing process.

Appellant contends finally that his death sentence is fatally defective because the judge considered nonstatutory aggravating circumstances. The relevant portions of the judge’s findings are as follows:

The question occurs as to whether death or life imprisonment should be the verdict of this Court. Using the statutory guidelines of mitigating circumstances as opposed to aggravating circumstances, the Court finds under aggravating circumstances the following:
1. Whether the Defendant was under sentence of imprisonment when he committed the murder for which he was convicted. This case does not fit this guideline.
2. Whether the Defendant has previously been convicted of another capital felony or of a felony involving the use of or threat of violence to the person.
The Defendant CARL ELSON SHRINER was convicted of the offense of Armed Robbery in Dade County in 1972. He served a five-year sentence in the Department of Offender Rehabilitation for this act.
3. Whether in committing the murder for which he has just been convicted, the Defendant knowingly created a great risk of death to many persons. This guideline is not applicable to this case.
4. Whether the murder for which the Defendant was convicted was committed while he was engaged in the commission of or an attempt to commit, or flight after committing or attempting to commit, any robbery, rape, arson, burglary, kidnapping, aircraft piracy or the unlawful throwing, placing or discharging of a destructive bomb or device.
The evidence shows in this case that the Defendant killed Judith Ann Carter while perpetrating robbery.
The following are statutory mitigating circumstances which have been considered:
1. Whether the Defendant has no significant history of prior criminal activity.
2. Whether the murder was committed while Defendant was under the influence of extreme mental or emotional disturbance.
3. Whether the victim was a participant in the Defendant’s conduct or consented to the acts.
4. Whether the Defendant was an accomplice in the murder committed by another person and the Defendant’s participation was relatively minor.
5. Whether the Defendant acted under extreme duress or under the substantial domination of another person.
6. Whether the capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.
7. The age of the Defendant at the time of the crime.
The Court finds, with the possible exception of No. 6 above, there are no mitigating circumstances in this case. An examination of the psychiatric evaluation in this case, found both in the presen-tence investigation from the Department of Offender Rehabilitation and by the various psychiatrists appointed to represent this Defendant prior to trial, he has been diagnosed as a “sociopathic personality”. An examination of these reports, however, does not lead one to the conclusion that his capacity is diminished thereby.
The Court finds that the aggravating circumstances far outweigh the mitigating circumstances.
In addition, an examination of the pre-sentence investigation, which was made available in its entirety, including the confidential section, to the attorney for the Defendant prior to sentencing, indicates that during the Defendant’s incarceration at the Department of Offender Rehabilitation, he has presented a discipline problem and to some degree a security risk. The investigation further shows that he has engaged in a long pattern of violent criminal conduct. In addition, it is apparent that the robbery that was committed in perpetration of the death of Judith Ann Carter was not the sole robbery committed by this Defendant subsequent to his release from prison some three weeks prior to the date of the offense.

As a preliminary matter, the record is replete with evidence to support the judge’s finding of aggravating circumstances numbered two and four. The record also supports the finding of no mitigating circumstances. It is not clear, however, whether the judge considered appellant’s disciplinary record as an aggravating circumstance. Even if we assume that the disciplinary problem was so treated, the error was harmless. We have here two valid aggravating circumstances counterbalanced by no mitigating circumstances. Since death is presumed in this situation, improper consideration of a nonstatutory factor does not render the sentence invalid:

It appears that the United States Supreme Court does not fault a death sentence predicated in part upon nonstatuto-ry aggravating factors where there are no mitigating circumstances. The absence of mitigating circumstances becomes important, because, so long as there are some statutory aggravating circumstances, there is no danger that non-statutory circumstances have served to overcome the mitigating circumstances in the weighing process which is dictated by our statute.

Elledge v. State, 346 So.2d 998, 1002-03 (Fla.1977) (emphasis in original).

Accordingly, the judgment of guilt and the sentence of death are affirmed.

It is so ordered.

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

      . References to specific pages in the record will be designated as follows: record on appeal, R; supplemental record on appeal, SR; Trial transcript, TT; red-bound transcript of 2/3/77 hearing, TH.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . TT 641.

      . TT 651, 655.

      .TT 636.

      . The facts surrounding this episode will be fully explored later in this opinion.

      . United States v. Charlton, 565 F.2d 86, 89 (6th Cir. 1977), cert. denied, 434 U.S. 1070, 98 S.Ct. 1253, 55 L.Ed.2d 773 (1978).

      . Id.

      . We also concur with the Circuit Court’s footnote # 2 to the above statement, 476 F.2d at 733:
      We certainly do not intimate approval of any practice by which a suspect’s express desire to remain silent as to some specific activity is aborted by the subterfuge of questioning which is designed or intended to indirectly gain information about those matters which he has indicated he wishes not to discuss. However, this record is bare of any perfidious police practices. And considering the lack of contradictory evidence in Shriner’s testimony at the motion to suppress, we would be irresponsible to overturn the trial judge’s finding of voluntariness. See 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).

      . TT 611.

      . TT 636.

      .TT 641-56.

      . See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Proffitt v. Florida, supra; Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979).

      . § 921.141(5)(b) and (d), Fla.Stat. (1977).

      . “When one or more of the aggravating circumstances is found, death is presumed to be the proper sentence unless it or they are overridden by one or more of the mitigating circumstances . . . .” State v. Dixon, 283 So.2d at 9.


source: Caselaw Access Project

author: SUNDBERG, Justice. ALDERMAN, Justice,

license: Public Domain

text:
    Woodrow CROFT, Petitioner, v. PINKERTON-HAYES LUMBER COMPANY et al., Respondents.
    No. 54366.
    Supreme Court of Florida.
    May 29, 1980.
    Rehearing Denied Aug. 27, 1980.
    Ken Davis of Davis & Judkins, Tallahassee, for petitioner.
    Charles Vocelle of Brannon, Brown, Norris, Vocelle & Haley, Lake City, for respondents.
   SUNDBERG, Justice.

This cause is before us on petition for writ of certiorari to review an order of the Industrial Relations Commission. We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution. We find that the Commission departed from the essential requirements of law and therefore quash.

In 1975, petitioner was employed as a millwright in respondent’s lumber company. His work, similar to that of a maintenance mechanic in heavy equipment, consisted of such duties as welding and repairing belts or chains.

On June 2 of that year, petitioner was engaged in a task which had occupied him for the past five days. His job was to dismantle a large carriage which was to be replaced by a more modern and efficient canting machine. Petitioner was working unusually hard on this job because his superintendent had told him to complete it in a hurry. Petitioner used a torch in the dismantling process continuously from 8:00 a. m. to 12:00 noon, and from 1:00 p. m. to 3:45 p. m., longer than he had ever used a torch before. He had to lie on his stomach to cut the metal. After 1:00 p. m. petitioner began working in a cramped area, the torch burning only eighteen inches from his face. It was exceedingly hot. At 3:45 p. m. while on his way to get some nails, petitioner collapsed. He was taken to Perry Hospital where he was diagnosed as having a subarachnoid hemorrhage secondary to a ruptured aneurysm of the right anteri- or communicating artery. In lay terms, petitioner had suffered a stroke.

The Judge of Industrial Claims found that the strenuous activity required to dismantle the carriage caused petitioner’s stroke. The Industrial Relations Commission disagreed, holding that the medical testimony linking petitioner’s work activities to his injury was “speculative.”

Petitioner is entitled to compensation if there is evidence to show that his injury resulted from exertion unusual to the ordinary requirements of employment. Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla.1962); Gateway Sporting Goods Co. v. Lutz, 328 So.2d 427 (Fla.1976). It is essentially undisputed that the work involved in dismantling the carriage was unusually strenuous. The determinative issue here is whether petitioner’s work activities actually caused the ruptured aneurysm. On this point the evidence is hopelessly in conflict. It is in just such a case that we must be acutely sensitive to the limited scope of our review:

[I]t is not the function of this Court or of the Industrial Relations Commission to re-weigh the evidence to see if we agree with the particular manner in which such conflicts were resolved by the Judge of Industrial Claims; rather, our function, and that of the Commission in this regard, is simply to determine if there was competent substantial evidence to support the findings of the Judge of Industrial Claims.

Howard v. Green’s Tractor Co., 290 So.2d 46, 48 (Fla.1973).

We have concluded that there was competent substantial evidence to support the finding that petitioner’s work activities caused the ruptured aneurysm. Excerpted is a portion of Dr. Frank Davis’s deposition which bolsters our conclusion:

Q (Mr. Vocelle) Right. In that context, I will ask you this one question, and it is similar to what we have been Saying. Your clinical impression — I am not asking you anything but your clinical impression as to whether it was just a coincidence that it happened on the job rather than some place else.
A (Dr. Davis) If I can speak sort of generalizing on this, it might help. Given a patient who is working and doing manual labor work, physical exertion-type things, and he has a subarachnoid hemorrhage at that particular time, I would certainly be inclined to think there is more than likely a relationship between work and subarachnoid hemorrhaging than someone doing sedentary type work. They were sitting there at their desk and had their hemorrhage there.
On the other hand, there is no way that I can say with any kind of certainty whether or not this would not have been a coincidental thing, had he been sitting in church or whatever. But it is accepted that exertion is a predisposing factor towards a specific hemorrhage at a specific moment. But I don’t know how I can say more.
Q I think you have said it very plainly-
A I cannot be any more specific than that.
Q And you would want to know the exertion at that time when he first began his complaints of pain?
A Yes, at that moment or just immediately preceding.
Q When you say “immediately preceding it,” a few moments before—
A Minutes.
Q A few minutes.
MR. VOCELLE: Doctor, Thank you. Any more questions, Mr. Davis?
RECROSS EXAMINATION
BY MR. DAVIS:
Q Doctor, you are saying then subsequently that it is accepted in the medical profession as a predisposing factor to the subarachnoid hemorrhage if the person is exerting himself within minutes before the onset of the symptoms?
A Right. It would be a proximity thing as far as that specific rupture. You know, it’s really how much enlargement occurred prior to the rupture. In other words, whether or not it increased two or three million meters or X size just prior to the rupture, how much of an enlargement before it actually thinned out enough to rupture, and what the factors causing that straining and so forth, exertion and running the blood pressure up. It’s hard to say. But I think as far as the time incidence of occurrence, it would be relevant as the activity at that moment or immediately preceding it. Talking about not days, büt minutes, hours.
Q In other words, if a person was exerting himself pretty heavily with physical labor and thirty minutes later an aneurysm burst, you would feel then that there was some relationship between the exertion and—
A I say there is a possibility or a good probability there could have been, you know, a relationship. Again, it’s very difficult to say conclusively about it. That’s about as close as you can pin it down.
Q In other words, you are saying that probably there is a relationship between the exertion and a rupture of an aneurysm? You can’t say 100 percent that that is the case?
A In any one particular case.
Q But probably there is? So then you could state within reasonable medical probability that there is a relationship between exertion and a rupture of an aneurysm within, say, thirty minutes thereof; is that correct? I am not saying a 100 percent certainty but a reasonable medical probability.
A I think that that would be reasonable.

We recognize that respondents could marshal substantial evidence to counter the above testimony. But again, our function, and that of the Industrial Relations Commission, is not to reweigh evidence.

Having found competent substantial evidence to support the findings of the Judge of Industrial Claims, we hold that the Industrial Relations Commission departed from the essential requirements of law in reversing the compensation award. We therefore quash the order of the Commission and remand to the Judge of Industrial Claims for proceedings not inconsistent with this opinion.

Attorneys’ fees in the amount of $350 are assessed against respondents.

It is so ordered.

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

ALDERMAN, J., dissents with an opinion.

ALDERMAN, Justice,

dissenting.

The Industrial Relations Commission applied the correct legal test in determining whether claimant’s ruptured cranial aneurysm was compensable consistent with our recent pronouncement in Richard E. Mosca Co., Inc. v. Mosca, 362 So.2d 1340 (Fla.1978). In addition to defining the test to be applied, the commission considered whether there was a causal relationship between the work activities engaged in by the claimant and his ruptured aneurysm and determined that there was no record testimony evidencing a direct linkage.

There is no departure from the essential requirements of the law when the commission reverses findings of the trial judge on the basis of inadequate evidence. Mahler v. Lauderdale Lakes National Bank, 322 So.2d 507 (Fla.1975). The burden of proof is on the claimant to prove that a causal relationship exists between his work activities and his ruptured aneurysm. The commission, in its order, correctly points out that the “causal connection between the injury and employment may not be either speculative or based on mere possibilities.”

I agree with the commission’s conclusion that there is no testimony in this record that establishes a direct linkage between claimant’s work and his injury. The most that has been shown is a possible relationship. This is apparent even* in the portion of Dr. Davis’s deposition quoted by the majority and upon which it relies to bolster its conclusion. The sum of Dr. Davis’s testimony was that “exertion is a predisposing factor towards a specific hemorrhage at a specific moment.” He could not be any more specific than that. Even if we consider Dr. Davis’s ambiguous answer, “I think that that would be reasonable,” as an affirmative answer to counsel’s leading question, “So then you could state within reasonable medical probability that there is a relationship between exertion and a rupture of an aneurysm within, say, thirty minutes thereof; is that correct?,” there still is no testimony in the record that supports the conclusion of the trial judge that under the particular facts of this case there is a causal relationship between an unusüal strain or overexertion by the claimant not routine to his normal duties and the sub-arachnoid hemorrhage or stroke that he suffered.

I would deny certiorari.


author: PER CURIAM. BOYD, Justice,

text:
    Clifford WILLIAMS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 50666.
    Supreme Court of Florida.
    June 12, 1980.
    Rehearing Denied Aug. 26, 1980.

      Margaret Good, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Patti L. Eng-lander, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellant Clifford Williams, Jr. was convicted of murder in the first degree and attempted murder in the first degree. The trial judge, choosing not to follow the jury’s recommendation of life imprisonment,. imposed a sentence of death for the murder and a sentence of thirty years for the attempted murder. Jurisdiction vests in this Court pursuant to article V, section 3(b)(1), Florida Constitution. We affirm the convictions but vacate the death sentence.

Nina Marshall, the victim of the attempted murder and the prosecution’s star witness, testified that she and the murder victim, Jeannette Williams, shared a bedroom in an apartment at 1550 Morgan Street, Jacksonville, Florida. Nathan Myers, and occasionally appellant, occupied the other bedroom. There were three sets of keys to the apartment; Ms. Marshall and Ms. Williams shared one set, Myers and appellant had the other two.

Ms. Marshall and Ms. Williams went to bed shortly before 11:30 p.m. on the night of the murder. The door to the apartment was locked. Ms. Marshall rolled four marijuana joints; Jeannette smoked two of them, Nina one and a half. Marshall testified that she did not finish the second joint because “the reefer wasn’t any good. It didn’t make you high.” The women fell asleep while watching the late movie. Ms. Marshall was first awakened by the clicking sound of the front door locks. Assuming that Myers was entering the apartment, Marshall quickly fell back asleep. She awoke the second time to the sound of gunfire and realized that she and Jeannette had been shot. Ms. Marshall testified that she looked toward the front of the room and saw Clifford Williams and Nathan Myers standing on either side of the television set.

Ms. Marshall waited until her assailants had left and then struggled bleeding out of the apartment. She hailed a passing motorist who took her to the hospital. There she wrote on a piece of paper the names Clifford Williams, Nathan Myers and Jeannette Williams, and the address 1550 Morgan Street.

During the sentencing phase of the trial the prosecution offered no evidence in aggravation against appellant, and the defense offered no evidence in mitigation. The court, relying on the facts adduced at trial and the presentence investigation report, found four aggravating circumstances offset by no mitigating circumstances, which in its view compelled a sentence of death.

Appellant presents six issues for our review, two of which do not merit extended discussion. He first asserts error in the court’s failure to excuse an allegedly prejudiced juror. The trial judge heard testimony in chambers and properly concluded that no prejudice had been demonstrated. Appellant has failed to meet his heavy burden of showing an abuse of judicial discretion. Lamb v. State, 90 Fla. 844, 107 So. 530 (1925); Walsingham v. State, 61 Fla. 67, 56 So. 195 (1911); Mathis v. State, 45 Fla. 46, 34 So. 287 (1903). See also Fla.R.Crim.P. 3.330. Secondly, the judge’s instruction concerning the uncorroborated testimony of one witness in a criminal trial is a correct statement of Florida law and did not confuse or mislead the jury.

Appellant’s first colorable claim is that the trial court erred in permitting the introduction of oral evidence concerning what Nina Marshall wrote at the hospital. He maintains that the best evidence rule required either production of the original piece of paper on which the names were written or an adequate explanation for its absence.

We must agree with this contention. The best evidence rule provides that in proving the terms of a writing, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent. Firestone Service Stores, Inc. of Gainesville v. Wynn, 131 Fla. 94, 179 So. 175 (1938); Wicker v. Board of Public Instruction of Dade County, 159 Fla. 430, 31 So.2d 635 (1947); Griswold v. State, 77 Fla. 505, 82 So. 44 (1919); Wilson v. Jernigan, 57 Fla. 277, 49 So. 44 (1909); McCormick, Evidence § 230 (2d ed. 1972). Its purpose is to ensure the accurate transmittal of critical facts contained in a writing. 4 Wigmore, Evidence § 1179 (Chadbourn rev. 1972). Nina Marshall’s testimony concerning what she wrote at the hospital was offered to prove that she did indeed write the names of Williams and Myers on the piece of paper, which in turn would identify them as the murderers. Because the contents of the writing were directly in issue, the judge should have required the state to explain the absence of the original writing before allowing parol evidence of the identification.

The trial court’s error does not justify reversal, however, for it was clearly harmless. Rather than contesting the accuracy of the terms contained in Ms. Marshall’s note, appellant’s objection was directed to the reliability of the out-of-court identification, an issue not addressed by the best evidence rule. Moreover, counsel had ample opportunity to discredit the identification by cross-examining Ms. Marshall about the events at the hospital. Given this posture, we do not believe that the trial court’s technical error injuriously affected the substantial rights of appellant. § 59.041, Fla. Stat. (1975); Prince v. Aucilla River Naval Stores Co., 103 Fla. 605, 137 So. 886 (1931); Reliable Services, Inc. v. Taft, 247 So.2d 97 (Fla. 3d DCA 1971); accord, Myrick v. United States, 332 F.2d 279 (5th Cir.), cert. denied, 377 U.S. 952, 84 S.Ct. 1630, 12 L.Ed.2d 497 (1964); Sauget v. Johnston, 315 F.2d 816 (9th Cir. 1963).

As is our duty in death penalty cases, we have thoroughly examined the entire record in this case and find the evidence more than sufficient to support appellant’s conviction. Aldridge v. State, 351 So.2d 942 (Fla. 1977); Gibson v. State, 351 So.2d 948 (Fla. 1977), cert. denied, 435 U.S. 1004, 98 S.Ct. 1660, 56 L.Ed.2d 93 (1978). The motion for a new trial based on the insufficiency of the evidence was therefore properly denied.

Turning to the sentencing phase of the trial, we are constrained to conclude that the judge’s findings, in the most part, are not supportable. The findings, in pertinent part, are as follows:

B. WHETHER THE DEFENDANT HAS PREVIOUSLY BEEN CONVICTED OF ANOTHER CAPITAL FELONY OR OF A FELONY INVOLVING THE USE OR THREAT OF VIOLENCE TO THE PERSON. FACT:
A careful study of the Pre-Sentence Investigation shows that this defendant has many arrests dating back to September of 1959; that on 10/28/60 defendant was sentenced to two (2) years in the County Jail for Attempted Arson and that on 6/20/65 the defendant was convicted by a jury and sentenced to eight (8) years in the State Prison for Armed Robbery. The defendant was then paroled 4/14/70 and his parole revoked 7/31/72; on 12/27/71 defendant was convicted by a jury of Resisting Arrest and sentenced to one (1) year in the County Jail. On 6/7/76 defendant pled guilty and was sentenced to one (1) year in the County Jail for Resisting an Officer with Violence (this offense occurred prior to the subject murder, but defendant was sentenced thereon subsequent to said murder). It should also be noted that the defendant has pending at present in this Division of the Circuit Court of Duval County a charge of Conspiracy to Commit a Felony, to-wit: Sale or Delivery of Heroin, and that offense is alleged to have occurred prior to the subject murder although the defendant has yet to be tried on same.
It would therefore appear that this defendant has been involved in constant, serious difficulties with the law since September 9, 1959, having been arrested in excess of twenty-five (25) times and having been convicted of several felonies involving the use or threat of violence to the person.
CONCLUSION:
This is an aggravating circumstance because this defendant has been found guilty of crimes of violence to many persons, which crimes were felonies, before he was convicted by a jury for the cold-blooded murder of Jeannette Elizabeth Williams.
C. WHETHER, IN COMMITTING THE MURDER OF WHICH HE HAS JUST BEEN CONVICTED, THE DEFENDANT KNOWINGLY CREATED A GREAT RISK OF DEATH TO MANY PERSONS.
FACT:
During the murder of Jeannette Elizabeth Williams the defendant and the co-defendant, Hubert Nathan Myers, did shoot with pistols Nina Annette Dyals several times and at least twice in the throat, in attempting to kill the said Nina Annette Dyals, as charged in the Second Count of the Indictment.
CONCLUSION:
This is an aggravating circumstance because not only did the defendant murder Jeannette Elizabeth Williams, but either simultaneously therewith or immediately thereafter attempted to murder Nina Annette Dyals by shooting her with a pistol, and it was only by the skill of medical science and the grace of God that Ms. Dyals’ life was saved.
G. WHETHER THE MURDER OP WHICH THE DEFENDANT HAS BEEN CONVICTED WAS COMMITTED TO DISRUPT OR HINDER THE LAWFUL EXERCISE OF ANY GOVERNMENTAL FUNCTION OR THE ENFORCEMENT OF LAWS.
FACT:
Facts brought out at the trial of this case show that this defendant and Hubert Nathan Myers did in fact shoot with pistols Jeannette Elizabeth Williams and Nina Annette Dyals while they both were asleep in their bed. Ms. Williams died. Ms. Dyals survived, although seriously wounded. The Court must assume therefore that this defendant did not intend to leave a witness to his murder of Ms. Williams alive and did intend to hinder, disrupt and impede the lawful exercise of the duly authorized law enforcement officers of Duval County in investigating Ms. Williams’ murder.
CONCLUSION:
There is an aggravating circumstance under this paragraph.
H. WHETHER THE MURDER OF WHICH THE DEFENDANT HAS BEEN CONVICTED WAS ESPECIALLY HEINOUS, ATROCIOUS OR CRUEL.
FACT:
The defendant stands convicted of First Degree Murder of Jeannette Elizabeth Williams and Attempted First Degree Murder of Nina Annette Dyals.
The record of the trial amply shows that this defendant, together with Hubert Nathan Myers, entered the victims’ apartment in the nighttime and shot both victims with pistols, which were partially covered by a blanket or pillow or some other object, at close range while the victims were sleeping in their bed. The record further shows that defendant’s actions were premeditated, senseless, cruel, and indicative of the unreasonable, unlawful and violent nature of this defendant and the especially heinous, atrocious or cruel nature of the murder of Jeannette Elizabeth Williams.
CONCLUSION:
This is an aggravating circumstance. This Court cannot conceive of any more heinous, atrocious or cruel act than to enter someone’s home in the night while they are sleeping in their bed and shoot them to death.
CONCLUSIONS OF COURT
There are no mitigating circumstances existing, either statutory or otherwise, which would outweigh any aggravating circumstances to justify a sentence of Life Imprisonment rather that a sentence of Death.
There are sufficient aggravating circumstances which exist to justify the sentence of Death.

First, the record does not support a finding that Williams “knowingly created a great risk of death to many persons.” In Kampff v. State, 371 So.2d 1007 (Fla. 1979), we held that a great risk of death to two persons was insufficient to trigger this circumstance. Under our statute the risk of death must be to “many” persons, not just one or two. Second, the finding of an aggravating circumstance dealing with a prior conviction of a “felony involving the use or threat of violence” is defective. The state must prove every aggravating circumstance beyond a reasonable doubt. Alford v. State, 307 So.2d 433 (Fla. 1975), cert. denied, 428 U.S. 912, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976); 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). The state obviously failed to carry its burden here, for it offered no evidence, either at trial or during the sentencing phase, of a prior conviction against appellant. The judge should not have considered this circumstance in his sentence based solely on information contained in the presentence investigation report. Third, appellant’s crime did not rise to the level of “especially heinous, atrocious, or cruel.” Jeannette Williams died almost instantaneously from her gunshot wounds. The murder, while utterly reprehensible, was not “accompanied by such additional acts as to set the crime apart from the norm of capital felonies — the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” Id. at 9. Accord, 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).

There remains, then, one aggravating circumstance offset by no mitigating circumstances. Although a sentence of death is normally presumed in this situation, the jury’s recommendation of life imprisonment militates against such a presumption. A jury recommendation under our death penalty statute should be accorded great weight. “In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.” Id. at 910. Accord, McCaskill v. State, 344 So.2d 1276 (Fla. 1977); Provence v. State, 337 So.2d 783 (Fla. 1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977); Thompson v. State, 328 So.2d 1 (Fla. 1976). Even assuming the validity of the judge’s finding with respect to the remaining aggravating circumstance, the facts suggesting a sentence of death in this case are not sufficiently clear and convincing to override the jury’s recommendation.

Accordingly, appellant’s convictions and thirty-year sentence are affirmed, but the cause is remanded to the trial court for imposition of a sentence of life imprisonment without possibility of parole for twenty-five years on the first degree murder conviction.

It is so ordered.

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

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

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

OVERTON, J., concurs in the conviction but would remand for a new sentencing proceeding.

BOYD, Justice,

concurring in part and dissenting in part.

I concur in that portion of the majority opinion finding appellant guilty, but I dissent to the reduction of sentence to life imprisonment. I would affirm both the conviction and sentence of death.

ADKINS, J., concurs.

      . Appellant does not challenge the propriety of the thirty-year sentence for attempted murder.

      . Also know as Nina Dyals.

      . No relation to appellant.

      .Myers was tried jointly with appellant but receive a life sentence. His conviction is not before us today.

      . Indeed, counsel for appellant and Myers appear to concede that Ms. Marshall wrote the defendants’ names on a piece of paper at the hospital. The principal objection to introduction of the testimony was on the grounds of hearsay and relevance. The best evidence rule objection seems to have been included almost as an afterthought.

      . Appellant contends further that evidence of Ms. Marshall’s out-of-court identification should have been excluded as a prior consistent statement offered to bolster her in-court identification. Because the objection was not raised at the trial level, we decline to entertain it here. Lineberger v. Domino Canning Co., 68 So.2d 357 (Fla. 1953); Tampa Elec. Co. v. Charles, 69 Fla. 27, 32, 67 So. 572, 573 (1915); Frank v. Ruwitch, 318 So.2d 188 (Fla. 3d DCA 1975).

      . § 921.141(5)(c), Fla.Stat. (1975).

      . § 921.141(5)(b), Fla.Stat. (1975).

      . § 921.141(5)(h), Fla.Stat. (1975).

      . Due to our disposition of this issue, we intimate no view as to the validity of the judge’s finding under section 921.141(5)(g).

        . State v. Dixon, 283 So.2d 1, 9 (Fla. 1973).


author: SUNDBERG, Justice. OVERTON, Justice,

text:
    The CHRISTIAN AND MISSIONARY ALLIANCE FOUNDATION, INC., d/b/a Shell Point Village, Petitioner, v. FLORIDA CITIES WATER COMPANY, Respondent.
    No. 55161.
    Supreme Court of Florida.
    June 26, 1980.
    Rehearing Denied Aug. 27, 1980.

      Howard S. Rhoads of Allen, Knudsen, Swartz, DeBoest, Rhoads & Edwards, Fort Myers, for petitioner.
    Leon F. Olmstead and Prentice P. Pruitt, Tallahassee, for Florida Public Service Commission.
    John W. Costigan of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for Florida Cities Water Co.
   SUNDBERG, Justice.

This is a petition for writ of certiorari to review an order of the Florida Public Service Commission (Commission) concerning the justification for certain developer water unit connection charges. We have jurisdiction.

The petitioner-developer, The Christian and Missionary Alliance Foundation, Inc., owns a retirement community known as Shell Point Village in Lee County, Florida. The respondent-utility, Florida Cities Water Company (Florida Cities), is a privately-owned public utility authorized to provide water services in that area. When this community was in the planning stages, the developer arranged for water service with Florida Cities. The agreement, concluded in 1967, provided for a ten-inch water main to be extended to the front entrance of the development and a meter to be installed at that point of delivery. The developer constructs and maintains the water system past that point.

In 1975 the developer added to the development three multi-family buildings comprising 210 dwelling units. When the utility became aware of this new construction, it requested the developer to pay a one-time charge of $250 per unit for service availability to these new units, or a total sum of $52,500. The demand was based on a tariff provision granted the water utility by the Commission in its Order No. 5822, which reads in part as follows:

CONNECTION CHARGE
All applications for service at a new location shall pay, in advance, a connection charge of: $300 per residential customer with %" meters, $350 per residential customer with 1" meters, $250 per multiple dwelling unit as that term is defined in rate schedule MDW, and an amount that is fair and reasonable for commercial customers, but not less than $350.

The developer refused to make the requested payment. Thereafter, the utility initiated a proceeding before the Commission against the developer, resulting in an order by the Commission that the new service availability charge must be paid. The developer in these proceedings seeks relief from this order and asserts three grounds in support of its position that it should not be required to pay a service availability charge.

First, it contends that the charge applies only to new locations. Because it receives the water for new units through the same master meter used from the beginning, it believes it receives service at an existing location rather than a new location and therefore is not subject to the charge. We reject this contention. This argument may be initially appealing, but it fails to take into account additional demands that may require main plant expansion and development. If the utility is unable to charge for service availability to these new units, the developer could substantially develop Shell Point without paying for the expansion of the water system outside the development that would be necessary to supply the increased demand at the master meter. The financial burden would then be shifted to other customers of the utility contrary to section 367.101, Florida Statutes (1977). We conclude that the new units must be included in the term “new location.” Service is still rendered at the meter, but this charge is for service availability and not for the service itself.

The developer’s second argument relies solely upon the decision of this Court in Contractors and Builders Ass’n v. City of Dunedin, 329 So.2d 314 (Fla.1976). The developer asserts that the service availability charge is invalid because the use of the funds generated by this charge is not limited. In City of Dunedin, we held that an ordinance setting a utility connection charge for new customers was invalid for failure to restrict in writing the disposition of the fees collected. We stated, however:

Raising expansion capital by setting connection charges, which do not exceed a pro rata share of reasonably anticipated costs of expansion, is permissible where expansion is reasonably required, if use of the money collected is limited to meeting the costs of expansion. Users “who benefit expecially [sic], not from the maintenance of the system, but by the extension of the system . . . should bear the cost of that extension.”

329 So.2d at 320.

The developer’s reliance on City of Dunedin is misplaced because of the simple distinction between a municipal utility which is not regulated by the Commission and a private utility which is so regulated. The principle underlying City of Dunedin is that absent express limiting language in the ordinance authorizing service availability charges by the city, there is no check on the accounting for and application of the revenues for the intended purpose. These considerations are not present when dealing with a private utility regulated by the Commission.

By section 367.121(1), Florida Statutes (1977), the Commission was charged with the responsibility, inter alia, of: (a) prescribing fair and reasonable rates and charges; (b) prescribing a uniform system and classification of accounts; and (c) requiring the filing of periodic reports and all other reasonably necessary information. It was pursuant to this charge that the tariff in question was approved by the Commission. Section 367.101, Florida Statutes (1977), provided the more specific authority for the Commission to “set just and reasonable charges and conditions for service availability.”

Under the auspices of this statutory authority, the Commission has established accounting regulations for treatment of service availability charge funds, and such accounting forms a basis for setting rates for water service. The private water utility is required to record all connection charges in Account No. 271 (Uniform System of Accounts) as contributions in aid of construction which are thereafter deducted from the utility’s investment for ratemak-ing purposes. Consequently, the collection of service availability charges by a private utility has the effect of reducing, or at least controlling, rates to customers. Thus the objective expressed in the Commission’s order “that the new customer will bear the expense of expansion of the facilities to provide him service in order that such new customer will not be subsidized by existing customers,” is met. This statutory scheme provides the regulation and accountability missing in the instance of a municipal utility and, hence, makes inapplicable the reasoning of City of Dunedin to this case.

The petitioner-developer’s third argument that it has a vested right to remain connected to the water system without paying these charges is totally without merit. See H. Miller & Sons, Inc. v. Hawkins, 373 So.2d 913 (Fla.1979).

For the reasons expressed, we hold valid the Commission’s order under review.

It is so ordered.

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

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

OVERTON, Justice,

concurring in part, dissenting in part.

I concur with the majority in rejecting the first and third arguments of petitioner; however, I would hold that the principles enunciated by this Court in Contractors and Builders Ass'n v. City of Dunedin, 329 So.2d 314 (Fla.1976), should apply to private as well as publicly owned utility companies.

I dissent from the holding of the majority that the City of Dunedin applies solely to government-owned utilities. In my view, this would allow the Public Service Commission to permit service availability charge funds of private utilities to be used for maintenance and operations of private utilities while government-owned utilities must, under City of Dunedin, restrict these same funds to the cost of expansion. In my opinion, a privately owned water utility and a government-owned water utility should be treated the same and therefore subject to the same restrictions and limitations on the use of these cost-of-expansion funds. I would hold invalid the Commission’s order under review for failure to provide sufficient restrictions upon the funds collected for the service availability charge and remand this cause to the Commission and allow it in subsequent proceedings to incorporate proper restrictions on the use of these revenues.

      . Art. V, § 3(b)(3), Fla.Const.; § 367.131, Fla. Stat. (1977).


author: ADKINS, Justice.

text:
    Oscar SAMBRINE, Petitioner, v. STATE of Florida, Respondent.
    No. 53807.
    Supreme Court of Florida.
    July 24, 1980.
    Philip Carlton, Jr. of the Law Offices of Philip Carlton, Jr., Miami, for petitioner.
    Jim Smith, Atty. Gen. and William M. Grodnick, Asst. Atty. Gen., Miami, for respondent.
   ADKINS, Justice.

This is a petition for writ of certiorari seeking review of a decision by the Third District Court of Appeal, reported at 355 So.2d 825 (Fla. 3d DCA 1978), which conflicts with the decisions in State v. Riggins, 348 So.2d 1209 (Fla. 4th DCA 1977), and Lytwyn v. State, 353 So.2d 222 (Fla. 1st DCA 1977). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. (1972).

Petitioner was charged with two counts of manslaughter by culpable negligence, section 782.07, Florida Statutes (1975), and two counts of manslaughter by operating a vehicle while intoxicated, section 860.01, Florida Statutes (1975), arising out of an accident in which his automobile collided with and killed two persons who were apparently attempting to repair a motorcycle on the shoulder of an entrance ramp to a state road. Immediately following the accident, petitioner was taken to the county jail for a breathalyzer test. He was allowed to call his attorney and based on advice of counsel refused to consent to the test. Subsequently, he was taken to a hospital where a blood test was administered despite his repeated refusal to consent. The test results yielded a reading of 0.14 percent alcohol, above the level at which one is presumptively under the influence of alcohol to the extent that normal faculties are impaired. § 322.262(2)(c), Fla.Stat. (1975).

Prior to trial, petitioner filed a motion to suppress the results of the blood test. The trial court denied the motion, and after a non-jury trial, found petitioner guilty of both counts of manslaughter by operating a vehicle while intoxicated. On appeal, the district court affirmed.

Petitioner raises four issues for the Court’s consideration. He asserts that the trial court erred in allowing the blood sample to be used as evidence after he had refused to submit to a breathalyzer test, that the trial court erred in receiving the results of the alcoholic content of the blood test as prima facie evidence of intoxication, that the evidence was insufficient for conviction and that the charging statute, section 860.01, Florida Statutes (1975), was unconstitutional.

For reasons to be discussed we find it necessary to consider only the first of these contentions. It should, however, be noted that petitioner’s contention that section 860.01, Florida Statutes (1975), is unconstitutional has been decided contrary to his position in the recent case Baker v. State, 377 So.2d 17 (Fla.1979).

The issue before this Court is one that has been considered by three district courts of appeal, but which has never been squarely presented to this Court, that is, whether or not a chemical test for blood alcohol content is admissible evidence when a driver exercises the option given him by the Florida legislature in section 322.261(l)(a), Florida Statutes (1975), to refuse to consent to a chemical test of his breath. In State v. Riggins, 348 So.2d 1209 (Fla. 4th DCA 1977), Lytwyn v. State, 353 So.2d 222, (Fla. 1st DCA 1977), and McDonald v. State, 364 So.2d 1241 (Fla. 2d DCA 1978), the courts held that section 322.261(l)(a), commonly referred to as the “implied consent law,” allows an individual to refuse to take a chemical test to determine the alcohol content of his blood and makes any evidence derived from the administering of such test inadmissible in court. In Smith v. State, 378 So.2d 281 (Fla.1979), this Court, citing Riggins with approval, stated that the state is prohibited from taking a blood sample from a person who expressly objects to a chemical test.

Section 322.261(l)(a) provides:

Any person who shall accept the privilege extended by the laws of this state of operating a motor vehicle within this state shall by so operating such vehicle be deemed to have given his consent to submit to an approved chemical test of his breath for the purpose of determining the alcoholic content of his blood if he is lawfully arrested for any offense allegedly committed while the person was driving a motor vehicle under the influence of alcoholic beverages. The test shall be incidental to a lawful arrest and administered at the request of a peace officer having reasonable cause to believe such person was driving a motor vehicle within this state while under the influence of alcoholic beverages. Such person shall be told that his failure to submit to such a chemical test will result in the suspension of his privilege to operate a motor vehicle for a period of 3 months.

Section 322.261(l)(c) provides:

Any such person who is incapable of refusal by reason of unconsciousness or other mental or physical condition shall be deemed not to have withdrawn his consent to such test. Any such person whose consent is implied as hereinabove provided and who, during the period within which a test prescribed herein can be reasonably administered, or who, being admitted to a hospital as a result of his involvement as a driver in a motor vehicle accident, is so incapacitated as to render impractical or impossible the administration of the aforesaid test of his breath shall be deemed to have consented also to an approved blood test given as provided for herein and shall be deemed not to have withdrawn his consent therefor. Under the foregoing circumstances, a blood test may be administered whether or not such person is told that his failure to submit to such blood test will result in the suspension of his privilege to operate a motor vehicle upon the public highways of this state.

In addition, section 322.261(l)(d) provides in relevant part that:

If any such person refuses the officer’s request to submit to a chemical test herein provided, the department, upon receipt of the officer’s sworn statement that he had reasonable cause to believe such person had been driving a motor vehicle within this state while under the influence of alcoholic beverages and that the person had refused to submit to the test after being requested by the officer, shall suspend his privilege to operate a motor vehicle for a period of 3 months. No suspension shall become effective until 10 days after the giving of written notice thereof, as provided for in paragraph (e).

In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the United States Supreme Court held that the taking of a blood sample without consent did not violate the Fourth Amendment of the United States Constitution. This Court, in Filmon v. State, 336 So.2d 586 (Fla.1976), upheld the constitutionality of section 322.-261, Florida Statutes (1975), against challenges based on the Fourth Amendment as well as the equal protection clauses of the Florida and United States Constitutions. What is at issue here, however, is not the constitutionality of this provision but rather the right of the state of Florida to extend to its citizenry protections against unreasonable searches and seizures greater than those afforded by the federal constitution. This it has done through the enactment of section 322.261, Florida Statutes (1975). Under this provision, a conscious person is given the right to refuse to take a chemical test if he is willing to suffer a three-month suspension of his driving privilege. We recently held in State v. Bender, 382 So.2d 697 (Fla.1980), that there is a compelling state interest in highway safety that justifies the use of driver license suspension for failure to take a breathalyzer or blood alcohol test.

The state asserts that said consent is not material where the blood test is taken incidental to a lawful arrest and where there is probable cause to take a blood test coupled with exigent circumstances. It contends that section 322.261(l)(a) is inapplicable in the instant case and that the administration of the test should be judged on constitutional principles. The state ignores section 322.261(l)(c). This Court is not free to ignore plain statutory language and obvious legislative intent. Any careful reading of section 322.261 leads to the inescapable conclusion that a person is given the right to refuse testing. If this were not so, it is unclear why the legislature provided for a definite sanction and a detailed procedure for the enforcement of such sanction. Not once, but twice, the implied consent law provides for a three-month suspension in the case of refusal. Section 322.261(l)(c) specifically provides for the administration of a blood test to unconscious or incapacitated persons; there is, however, no mention of the administration of a blood test to conscious persons.

The state argues that the holding in Fii-mon should dictate a different conclusion. There are, however, significant factual differences between this case and Fiimon. In Filmon, the defendant was conscious and failed to give consent. In this case, Mr. Sambrine not only failed to consent but affirmatively refused to take the breath test. This of crucial importance. Section 322.261 provides that the act of accepting the privilege to drive in this state carries with it consent to submit to an approved chemical test to determine blood content. Language to this effect is found in the signature block of the Florida driver license. In addition, there is no provision that a driver be informed of his right to refuse; he must merely be informed that his failure to submit to a chemical test will result in a three-month suspension. Revocation of this consent (with the appropriate sanctions) requires affirmative action on the part of the driver. Such action was present in this case, but not in Filmon.

The argument that this interpretation of the “implied consent law” would effectively do away with the concept of implied consent as constitutionally delineated by the Federal Constitution and Schmerber is a matter that is better addressed to the legislature than this Court. Apparently, the Florida legislature has decided that a sufficient penalty for revoking one’s implied consent is three months’ suspension of driving privilege. (It should be noted that this law when originally enacted as chapter 67-279, Laws of Florida, carried a six-month suspension.)

It is a matter peculiarly within the legislative sphere to establish penalty provisions for noncompliance with substantive law. The legislature may have concluded that it was preferable to enforce the implied consent law through this method than mandate that its law enforcement officials be required to physically restrain every individual who refused to submit to the test.

We hold that the motion to suppress should have been granted in the trial court and remand the case to the district court with directions to instruct the trial court to grant the defendant a new trial. This Court is not unmindful of a comment which was made by the trial judge to the effect that without the evidence of this chemical test a conviction would have been impossible. We do, however, consider this comment as an insufficient basis upon which to conclude that reversal be granted on grounds of insufficient evidence, thereby mandating a dismissal.

The decision of the district court of appeal is quashed and this case is remanded for further proceeding in accordance with the views expressed in this opinion.

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

ENGLAND, J., dissents.


text:
    STATE of Florida, Petitioner, v. Francis BROWN, Respondent.
    No. 57234.
    Supreme Court of Florida.
    July 24, 1980.
    Jim Smith, Atty. Gen., and Michael A. Palecki, Asst. Atty. Gen., Tampa, for petitioner.
    Robert E. Jagger, Public Defender, and Richard M. Robbins, Asst. Public Defender, Clearwater, for respondent.
   PER CURIAM.

Affirmed. See Sambrine v. State, 386 So.2d 546 (Fla.1980).

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


text:
    RESERVE INSURANCE CO. et al., Appellants, v. GULF FLORIDA TERMINAL CO. et al., Appellees. GULF FLORIDA TERMINAL CO. et al., Petitioners, v. MISSOURI MEAT CO. et al., Respondents.
    Nos. 54522, 54563.
    Supreme Court of Florida.
    July 24, 1980.
    W. M. Carson and Gary W. Nicholson of Carson & Guemmer, Tampa, for appel-lees/petitioners.
    William F. McGowan, Jr. of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for Missouri Meat Company, Booth Fisheries, Four Star Meat Products Company, Chicago Dressed Beef Co., Inc. and Arrow Beef Corp.
    A. J. Melkus of Carver, McCarthy & Mel-kus, Lakeland, for Orleans International, Tushman, Heritage Trucking and The Home Insurance Co.
    Counsel for appellants, Reserve Insurance Company, filed a motion to withdraw as counsel of record, and said motion was granted.
   PER CURIAM.

These consolidated cases are before this Court for certiorari review of an interlocutory order of the Circuit Court, Thirteenth Judicial Circuit, which declared section 677.-403(l)(b), Florida Statutes, unconstitutional. Because the interlocutory order would be directly appealable to this Court upon final judgment, we have jurisdiction. Art. V, § 3(b)(3), Fla.Const. (1972). For the reasons set out below, we reverse the trial court’s order.

In September 1974, an ammonia gas leak occurred at a cold storage warehouse owned by Gulf Florida Terminal Company. The leak allegedly damaged food products owned by several meat companies and stored with Gulf Florida. Each meat company, as a bailor, sued Gulf Florida for negligence, claiming damages in excess of $10,000. By motion the plaintiffs requested that section 677.403(l)(b) be declared unconstitutional and that the trial be conducted under the statute as it existed prior to amendment in 1971. Finding that this statute created an impermissible classification between bailors and that, therefore, the statute violated the equal protection clause of the fourteenth amendment to the United States Constitution and the equality clause of the Declaration of Rights of the Florida Constitution, the trial judge granted the motion.

Under the common law a bailor could establish a prima facie case of negligence by showing that goods were not returned in the same condition as they were delivered; however, the bailor continued to have the burden of proving his case by the preponderance of the evidence. Marine Office-Appleton & Cox Corp. v. Aqua Dynamics, Inc., 295 So.2d 370 (Fla.3d DCA 1974); Adelman v. M & S Welding Shop, 105 So.2d 802 (Fla.3d DCA 1958). See Stegemann v. Miami Beach Boat Slips, 213 F.2d 561 (5th Cir. 1954). In 1965 Florida adopted most of the provisions of the Uniform Commercial Code.

Section 677.403(l)(b) as originally enacted changed the common law rule by providing:

(1) The bailee must deliver the goods to a person entitled under the document who complies with subsections (2) and (3), unless and to the extent that the bailee establishes any of the following:
* * * # * *
(b) Damage to or delay, loss or destruction of the goods for which the bailee is not liable.

This language was adopted verbatim from the official text of the Uniform Commercial Code, section 7-403(l)(b). The provision requires that a bailee prove that he acted with reasonable care in both negligence and contract cases. Low v. Park Price Co., 503 P.2d 291 (Idaho 1972); Canty v. Wyatt Storage Corp., 208 Va. 161, 156 S.E.2d 582 (1967). See also Anderson, Uniform Commercial Code § 7-403:5 (1971).

In 1971 the legislature amended section 677.403(l)(b) to read as follows:

(b) Damage to or delay, loss or destruction of the goods for which the bailee is not liable, but the burden of establishing negligence in such cases when value of such damage, delay, loss, or destruction exceeds $10,000 is on the person entitled under the document.

This amendment shifted the burden of proving a bailee’s negligence back to those bailors sustaining losses of more than $10,-000, but left the burden of proving no negligence to the bailee when the bailor’s losses were less than $10,000. This enactment must be reviewed to determine whether the monetary damage classification has a reasonable relation to a permissible legislative objective. If such relationship exists, there is no violation of the equal protection clause. Lasky v. State Farm Ins. Co., 296 So.2d 9 (Fla. 1974).

The official text of the Uniform Commercial Code (1962) provides an optional clause that can be added to section 677.403(l)(b), “but the burden of establishing negligence in such cases is on the person entitled under the document.” The 1971 legislature had for consideration a bill, similar to the official optional clause, which would have changed prior law by shifting to the bailor the burden of proving negligence with respect to the loss or destruction of bailed goods. Several members of the House of Representatives, however, expressed concern for so-called “mom and pop bailors,” i.e., individuals who might store household goods or furniture in a warehouse which is damaged or destroyed and who would lack the financial resources to investigate and litigate the cause of their loss. The legislature resolved this concern by establishing an arbitrary line — $10,000 in damages — between those for whom the burden of proof would be changed and those for whom it would not. The legislature obviously thought this line of demarcation would, in general, protect a class of persons whose goods are valued at less than that amount. Cf. Engel v. O’Malley, 219 U.S. 128, 138, 31 S.Ct. 190, 193, 55 L.Ed. 128 (1911) (Justice Holmes sustaining a $500 transaction exemption from the requirement of licensing in certain monetary transactions on the ground that the legislature may “confine the law as nearly as may be to the class thought by the legislature to need protection”).

The legislature possesses wide latitude in devising classifications which regulate commercial transactions. Broad enough, in fact, to classify based upon the financial resources of the parties and the amount involved in the transaction. See e.g., Fla.Stat. (1977), § 516.031 (consumer financing not to exceed $2,500); § 520.08 (motor vehicle sales finance); § 520.34 (retail installment contracts); § 520.35 (revolving accounts); § 656.17 (industrial savings banks); § 657.14 (credit unions); § 659.18 (commercial banks — loans not in excess of $15,000); § 659.181 (commercial banks— credit cards); § 687.02 (loans to individuals in excess of $500,000). Cf. Cesary v. Second Nat’l. Bank of North Miami, 369 So.2d 917 (Fla. 1979) (validity of legislative classifications relating to permissible rates of interest).

This establishment of a cutoff point for “mom and pop bailors” is rational because the legislature could reasonably conclude that such bailors would likely lack the resources to investigate and ascertain the cause of loss when related to the amount involved. It is, therefore, rational and proper for the legislature to place the burden on the bailee to come forward with evidence of due care as to this class of bailors. It is not the Court’s concern where the line was drawn, of course, nor whether it achieved the legislative goal precisely or only by approximation. Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693 (1918); Davis v. Florida Power Co., 64 Fla. 246, 60 So. 759 (1913). See North Ridge General Hospital v. City of Oakland Park, 374 So.2d 461 (Fla. 1979). The equal protection challenge ends with a finding of rationality for drawing the line.

We hold section 677.403(l)(b), Florida Statutes, to be constitutional and remand these consolidated cases to the circuit court for further proceedings.

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

BOYD, J., dissents with an opinion.

BOYD, Justice,

dissenting.

I dissent from the Court’s decision because I believe there is no rational basis for requiring bailors suffering losses in excess of $10,000 to bear the burden of proving the bailee’s negligence, while leaving the burden of disproving negligence on bailees when the loss does not exceed that amount. I agree with the majority that the legislature “possesses wide latitude in devising classifications which regulate commercial transactions.” However, the classification in this case is not so much concerned with commercial transactions as it is with trial procedure.

This Court has struck down several statutes which have provided different standards of proof to the same class of litigants. Florida East Coast Ry. Co. v. Edwards, 197 So.2d 293 (Fla. 1967); Georgia Southern & Florida Ry. Co. v. Seven-Up Bottling Co. of Southeast Georgia, 175 So.2d 39 (Fla. 1965); Atlantic Coast Line Ry. Co. v. Ivey, 148 Fla. 680, 5 So.2d 244 (1941). The cited cases stand for the proposition that railroads are in the same class as other common carriers with respect to litigating negligence suits. In this case the only distinction drawn among the different litigant bailors is the amount of their claim. If railroads are not sufficiently different from other common carriers to justify different treatment with regard to standards of proof, then the amount of bailors’ claims would seem to be insufficient reason to justify the classification in this case.

I disagree with the view that the inference the legislature has drawn from the amount of a bailor’s claim is reasonable. The amount of loss a bailor suffers may be entirely unrelated to the value of his wealth generally. It is unreasonable to presume that when damages exceed $10,000, the bailor is in a better position to underwrite the costs of investigating the incident than the bailee; the bailee may not have suffered any damages whereas the bailor definitely has. The only colorably reasonable inference that can be drawn from the amount of loss is that the greater a bailor’s loss, the less able he is to bear the cost of investigation. This is completely opposite to the conclusion the legislature has drawn.

If it could be shown that persons storing goods worth more than $10,000 are better able to afford investigation than persons owning less valuable lots of goods — and this is the legislative conclusion which the majority declines to disturb because it contains some minimal degree of conceivability — I would still find the law unreasonable because it embodies a classification based on financial status. “Everyone is entitled to equal protection of the law, not just poor people.” State v. Shipman, 360 So.2d 782 (Fla. 4th DCA 1978).

I would affirm the trial court’s decision and hold chapter 71-292, section 1, Laws of Florida, unconstitutional.

      . Florida did not originally adopt this optional language because it was not “in harmony with established Florida jurisprudence.” 19B Fla. Stat.Ann., Comment § 677.7-403 at 616 (1966). At the present time, some sixteen states, including Florida, have adopted the optional language or a modification thereof.

      . This chronology of legislative history is borne out by the 1971 Journal of The Florida House of Representatives at pages 381 and 1092 through 1093.


text:
    THE FLORIDA BAR, Complainant, v. Dale B. WILLINGHAM, Respondent.
    No. 58938.
    Supreme Court of Florida.
    July 24, 1980.
    David G. McGunegle, Branch Staff Counsel, Orlando, and John A. Boggs, Branch Staff Counsel, Tallahassee, for complainant.
    Douglas H. Smith, Lake Alfred, for respondent.
   PER CURIAM.

This matter is before the Court on Respondent’s Petition for Leave to Resign, pursuant to Article XI, Rule 11.08 of the Integration Rule of The Florida Bar. The Florida Bar filed its response stating:

1. Pursuant to a finding of probable cause, a formal Complaint was filed against the respondent/petitioner on October 5, 1979. That Complaint charged violations of Disciplinary Rules 1— 102(A)(4), 1-102(A)(5), 1-102(A)(6), 7-102(A)(6), 7-102(A)(8), 9-102(B)(l) and 9-102(B)(3) of The Florida Bar’s Code of Professional Responsibility, and violations of Rules 11.02(3)(a) and 11.02(4) of Article XI of The Integration Rule of The Florida Bar;
2. Subsequent to the filing of the Complaint, Mr. Willingham submitted the Petition To Resign dated March 6, 1980, which was filed in the court on March 27, 1980. He summarized the main case which gave rise to the Bar’s formal Complaint in paragraph 5. He was retained by Mr. William D. Acreman and paid $500 to institute a bankruptcy action in late 1977. Among Mr. Acreman’s assets was a house and lot in Haines City which he desired to retain and which respondent/petitioner advised him to sell to satisfy pressing creditors. In June, 1978, Mr. Willingham negotiated a sale of the property to a third party without the knowledge or consent of his client. He received the money without advising his client and he signed his client’s name to the Warranty Deed and some affidavits, also without his knowledge and consent. Thereafter, Mr. Willingham attempted to satisfy various liens outstanding against his client. When the sale became known, Mr. Acreman’s son-in-law, Mr. Williams, attempted to purchase “back” the property. Ultimately, $16,500 was deemed necessary to satisfy the existing creditors and the third party purchaser. Title to the property remained clouded due to respondent’s inability to satisfy various other liens and tax problems. Although he initially received the $6,700 in trust, he did not use this money to satisfy the outstanding judgments and liens. In one instance, a lien by the Cress Chemical Company for $3,670.10 was satisfied by $2,500 in cash and his own personal note for the remainder. The funds came not from his trust account. Additionally, he improperly prepared other affidavits in attempts to help Mr. Williams secure homestead exemption and clear other problems. As noted, the Bar charged the foregoing violated the rules as cited in paragraph one above;
3. Several other complaints were pending the Tenth Judicial Circuit Grievance Committee at the time this was received. He has listed these in his petition.
(a) 1079019 — In this case, he failed to secure a final judgment of dissolution of marriage for a Mrs. Townsend for almost two years after the final hearing. Ultimately, she received a final judgment dating back to the original date of the hearing through different counsel.
(b) 1079022 — This matter involves respondent’s handling of a business transaction where he sold the complainants’ truck for $2,500 plus an additional $1,500 to be obtained from operating revenues. They complained he manipulated the lease which rendered them unable to generate any revenue and also failed to account for earnings. It should be noted they used respondent’s services for various purposes over several years.
(c) 1079023 — This complaint, involving respondent’s negotiation of a property sale for approximately $4,000 for his client and his apparent failure to account, has been withdrawn.
Three other complaints not listed but pending include:
(d) 1080C15 — This involves a complaint by The Exchange Bank of Winter Haven which had forwarded payment for title insurance it ordered in 1977 to Mr. Willingham who apparently failed to pay the abstract company.
(e) 1080C50 — In this case Mr. Scott complains he paid Mr. Willingham $50 to accomplish some trade name research which he failed to do. After apparently promising a refund, Mr. Willingham has apparently failed to do it.
(f) 1080C52 — In this matter, Mr. Will-ingham was retained in 1974 by Mr. Waters to complete his property purchase and paid $125.00. After several payments, in October, 1978, Mr. Waters gave respondent $1,800 to complete the purchase. He also gave him an additional $150 in April, 1979, apparently for filing and other fees. Both checks were cashed by Mr. Willingham. However, the deed and mortgage were never recorded and the record title remained in the seller whose whereabouts remains unknown. Mr. Waters additionally had retained Mr. Willingham to represent him in an independent dispute over monies he owed to a Jacksonville firm in 1978. He paid him a total of $850 for fees and settlement. Payment was never received by the Jacksonville firm although respondent cashed the checks. Finally, Mr. Waters paid Mr. Willingham $50 to represent his son on a traffic violation. He thereafter failed to appear in the matter or return any money.
Paragraph 9 of respondent’s petition lists another complaint:
(g) — William T. Hall complained about respondent’s failure to accomplish a name change which was then dropped when the fee was refunded. This was never formally brought to the attention of the Grievance Committee.
All of the above-mentioned cases will be dismissed if this court grants respondent’s Petition For Leave To Resign;
4. At its May, 1980 meeting, the Board of Governors voted to support the Petition For Resignation with the following provisos:
(a) The Judgment granting leave to resign be a public order to be published in The Southern Reporter setting forth the general matters which led to the resignation, pursuant to Fla.Bar In-tegr.Rule Article XI, Rules 11.08(3) and 11.12(2);
(b) Tax such known costs against the respondent currently amounting to $704.32; and
(c) Order restitution to any clients where now known or as may be discovered in the future prior to any reinstatement following proof of rehabilitation in a regular reinstatement proceeding pursuant to Florida Bar Integration Rule Article XI, Rule 11.11;
5. The Bar submits that an appropriate judgment granting leave to resign, including the above conditions, will fulfill the criteria for such resignations pursuant to Fla.Bar Integr.Rule Art. XI, Rule 11.08(3). The public interest will not be adversely affected by granting the petition for leave to resign. The foregoing matters indicate it is clearly in the public interest to remove the respondent from the practice of law. That interest will further be served by publication of a public order detailing the general nature of events leading to the resignation. Such publication can only enhance the confidence of the public in the legal profession and the discipline program. Additionally, granting The Petition For Leave To Resign will not adversely effect the purity of the courts nor hinder the administration of justice. Conversely, The Bar submits it will work to the opposite effect. The allegations charged in the formal complaint and raised by the other matters, indicate that granting his Petition to Resign, which precludes the respondent/petitioner from reapplying for a minimum of three years [is] in the interest of all concerned.

The Court having reviewed the Petition for Leave to Resign and Response by The Florida Bar and determined that the requirements of Rule 11.08(3) are fully satisfied, the Petition for Leave to Resign is hereby approved, effective immediately.

The respondent, Dale B. Willingham, is hereby directed to make restitution to all injured parties as now exist or may be discovered in the future and to pay the costs of these proceedings in the amount of $704.32. Prior to filing a Petition for Reinstatement pursuant to Florida Bar Integration Rule, Article XI, Rule 11.11, respondent shall demonstrate that he has paid the costs of all prior proceedings and has made restitution to all injured parties now known or discovered prior to the filing of such Application for Reinstatement.

It is so ordered.

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


text:
    THE FLORIDA BAR. Re PETITION TO AMEND FLORIDA BAR INTEGRATION RULE, ARTICLE V, SECTION 6 (EXECUTIVE COMMITTEE).
    No. 59308.
    Supreme Court of Florida.
    July 24, 1980.
    Leonard H. Gilbert, President of The Florida Bar, Tampa, N. David Korones, Chairman, Integration Rule Bylaws Committee, Clearwater, and James P. Hollaway, Deputy Staff Counsel, Tallahassee, for petitioner.
   PER CURIAM.

The Florida Bar has proposed an amendment to Florida Bar Integration Rule, article V, Section 6. We grant the Bar’s petition and Florida Bar Integration Rule article V, Section 6 is amended to read as follows:

Article V
SECTIONS AND COMMITTEES
* * * * * *
6. The president, with the approval of the Board of Governors, shall appoint the standing committees as specified in the bylaws, including an executive committee composed of the president, president-elect, chairman of the Budget Committee, and four other members of the Board, and such special committees as he may deem desirable.

This amendment is effective immediately.

It is so ordered.

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