text:
    James W. POLARIE, Jr. v. STATE.
    3 Div. 299.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    J. Richard Piel and Lynn Clardy Bright of Piel & Lynn, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Cynthia D. Welch, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant pled guilty to an indictment charging rape in the second degree and was sentenced to eight years’ imprisonment.

The trial judge informed the defendant of his constitutional rights under Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969): (1) his privilege against compulsory self-incrimination; (2) the right to trial by jury; and (3) the right to confront his accusers. Boykin, 89 S.Ct. at 1712. The judge informed the defendant of the maximum and minimum range of punishment and ascertained that the plea was not coerced. The judge also had the defendant state the factual basis for the crime and admit that he had had sexual relations with his fifteen year old stepdaughter since she was “about thirteen.”

The record contains no “Ireland” form, Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971); however, in the judgment record the Circuit Judge states:

“Before accepting the defendant’s plea of guilt, the court proceeded to ascertain. that the plea of guilty was intelligently and voluntarily made and also that the defendant understood (1) the privilege against self-incrimination; (2) the right to a trial by jury; (3) the right to be confronted by his accusers; (4) that he fully understood what the plea connoted, including the nature of the charge and acts sufficient to constitute the offense; and (5) the consequences of the plea, including the range of the sentence; and being satisfied that the foregoing was fully and intelligently understood by the defendant and that his plea of guilty was freely and voluntarily made, the court proceeded with the hearing.”

The record shows that the defendant was represented by counsel at arraignment and when pleading guilty and when he was sentenced.

In a pro se “motion to appeal”, the facts of which are not sworn to be true or verified, the defendant alleges that he could not afford counsel; that the court appointed an attorney to represent him only at the time of his pleading guilty; and that his appointed attorney “did not know the facts surrounding the charge.!’ Defendant’s counsel on appeal alleges that “appellant was not represented by counsel at anytime up until the entry of his plea of guilty” and that appointed counsel only stood in for the “formalities”. These allegations are not supported by the record which contains nothing which would dispute the finding of the circuit judge that the guilty plea was knowingly and intelligently made.

Even if the defendant’s plea of guilty was accepted on the same day that counsel was appointed for him, that fact alone does not establish a denial of due process. Haun v. State, 44 Ala.App. 585, 217 So.2d 249, cert. denied, 283 Ala. 715, 217 So.2d 251 (1968). See also Hale v. State, 346 So.2d 489 (Ala.Cr.App.), cert. denied, 346 So.2d 492 (Ala.1977) (Defendant furnished effective assistance of counsel despite fact that attorney only talked to defendant for ten minutes before defendant pled guilty.)

Since there is absolutely nothing in the record to support the defendant’s allegations of lack of counsel or ineffective counsel and it appears (1) that he was represented by counsel and (2) that he was informed of his constitutional rights by the trial judge, the judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    Peter BROWN v. STATE.
    3 Div. 308.
    Court of Criminal Appeals of Alabama.
    Feb. 24, 1981.
    Rehearing Denied March 17, 1981.

      No briefs filed for appellant.
    Charles A. Graddick, Atty. Gen., and Deborah Hill Biggers, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The sixty-one year old defendant was indicted for the first degree murder of his wife. A jury convicted him of manslaughter in the first degree. Sentence was ten years’ imprisonment.

By statute, this Court is charged with the duty of considering “all questions apparent on the record or reserved in the circuit court.” Alabama Code 1975, Section 12-22-240. This obligation exists even though the defendant has not filed a brief on appeal. Higginbotham v. State, 262 Ala. 236, 78 So.2d 637 (1955).

Hayneville Police Officer Carl Edward Silvers arrested the defendant. Officer Silvers testified that he read the defendant his rights from a card but did not state the specific content of these rights.

Lowndes County Sheriff John Hulett was with Officer Silvers. He also read the defendant his rights from “a waiver of rights form.” Again, there was no testimony as to the content of these rights.

John B. Pemberton, Jr. was the investigator for the Alabama Department of Public Safety investigating the death of Mrs. Brown. He questioned the defendant at the Lowndes County Sheriff’s Office after advising the defendant of his rights. Pem-berton testified that he “went through great pains in explaining his rights to him.”

“(A)nd I even reached the point to where I asked him did he understand his rights and he said yes. I said what are they, and he even went to the point to tell me in the same words that that officer up yonder at Lowndesboro had told him, and at that time I was fairly sure that he understood his rights.”

Investigator Pemberton advised the defendant of his rights in the following language:

“I advised him he had a right to remain silent, that meant he didn’t have to say nothing. I advised him that anything he said may be used against him in a Court of Law. I advised him that he had a right to a lawyer, to have him present during questioning, if he wished. I also advised him that if he couldn’t afford one, that one would be appointed by the Court at a later time, to represent him— not by me and not by the Sheriff, but by the Court. Then, I advised if he decided to talk to me and answer questions about what happened around there in connection with the death of Inez that he had a right to stop at any time he wished — .” (emphasis added)

Before the jury, Investigator Pemberton explained:

“I had a rights form, DPS number 30. I read it to him. I explained that he had a right to remain silent, I told him further that he didn’t have to say anything. I told him that anything that he said can and may be used against him in a Court of Law. I told him that he had a right to a lawyer, to have the lawyer present with him during questioning, if he wished. I told him if he could not afford a lawyer, one would be appointed by the Court at a later time to represent him and that meant that Sheriff Hulett and I wasn’t going to appoint him no attorney. Further told him if he decided to talk to me and answer questions, you know, about the death of his wife Inez around at his house, he had the right to stop at any time he wished.”

The defendant could not read or write but made his mark on DPS Form No. 30, apparently a waiver of rights form. This form was never read into evidence. It was not allowed to be introduced into evidence after Sergeant Pemberton testified that, in his judgment, it was “very doubtful that he (the defendant) knew what it was, or if he understood what was on that paper.”

Questioning of Investigator Pemberton by defense counsel revealed the following:

“Q. Did you have considerable difficulty trying to get through the steps of explaining his rights to him?
“A. My identification and his rights, yes, I did.
“Q. And, he finally agreed that he understood his rights, or he said he understood his rights?
“A. Yes, sir.
“Q. Did you ever tell him that he could have a lawyer right then, before he answered your questions?
“A. Yes, sir, that’s the third point of the rights form that I read, to him.
“Q. Well, I understood you to say, however, that you said he could have a lawyer at a later time, that the Court would appoint him a lawyer at a later time?
“A. No, you misunderstood me or something, I explained to him that he had a right to a lawyer and to have him present with him during questioning, if he wished.
“Q. And, I believe you went further and said that the Court would appoint him a lawyer at a later time, weren’t those your words?
“A. That’s the next explanation. That’s the next step in those rights that I explained to him, he had a right to an attorney, and one would be appointed by the Court at a later time, to represent him. It wouldn’t be appointed by the Sheriff or me.
“Q. So, one was not available right at that time when you were going to ask him questions?
“A. No, no lawyer was available that I knew of.”

The warnings given the defendant run afoul of Square v. State, 283 Ala. 548, 219 So.2d 377 (1968). In Square, the suspect was advised:

“You have the right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. * * * We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to Court.” (emphasis added)

This warning was held insufficient to advise the defendant that a lawyer would be appointed for him prior to any questioning as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 1625, 16 L.Ed.2d 694 (1966).

In Square, the Court cited Lathers v. United States, 396 F.2d 524 (5th Cir. 1968).

“The Miranda warning must effectively convey to the accused that he is entitled to a government-furnished counsel here and now. If the words are subject to the construction that such counsel will be available only in the future, Miranda has not been obeyed.... ” Lathers, 396 F.2d at 535.

The quotation from Lathers continues: “Although there is no talismanic or heraldic abracadabra which must be fulfilled, the offer of counsel must be clarion and firm, not one of mere impressionism.” 396 F.2d at 535. Here, the defendant was never informed that he had the right to put off answering any questions until the time when he did have an appointed attorney as was the case in United States v. Lacy, 446 F.2d 511 (5th Cir. 1971).

Here, as in United States ex rel. Williams v. Twomey, 467 F.2d 1248 (7th Cir. 1972):

“We hold that the warning given here was not an ‘effective and express explanation’; to the contrary, it was equivocal and ambiguous. In one breath appellant was informed that he had the right to appointed counsel during questioning. In the next breath, he was told that counsel could not be provided until later. * * * The entire warning is therefore, at best, misleading and confusing and, at worst, constitutes a subtle temptation to the unsophisticated, indigent accused to forego the right to counsel at this critical moment.” Williams, 467 F.2d at 1250.

The record reveals that the defendant was unsophisticated. Although the record does not show that the defendant is indigent, it must be remembered that the State has the burden of showing an intelligent and voluntary waiver of the Miranda rights before introducing into evidence the product of any custodial interrogation. Lathers, 396 F.2d at 535. Miranda “established the rule that the warnings required and the waiver necessary to accord with its standards were ‘prerequisites to the admissibility of any statement made by a defendant.’ Id. [384 U.S.] at 476, 86 S.Ct. at 1629. ‘(U)nless and until such warnings are demonstrated by the prosecution, no evidence obtained as a result of interrogation can be used against him.’ Id. at 479, 86 S.Ct. at 1630.” United States v. Stewart, 576 F.2d 50, 53 (5th Cir. 1978).

We recognize the split of authority in this area, United States v. Olivares-Vega, 495 F.2d 827, 829 (2nd Cir. 1974); People v. Williams, 131 Ill.App.2d 149, 264 N.E.2d 901 (1970). However, Square defines this State’s position on the issue. It is clear that the accused must be advised that an attorney would be appointed for him prior to questioning if he could not afford one. Moore v. State, 291 Ala. 522, 283 So.2d 187 (1973). See also Sanchez v. Beto, 467 F.2d 513 (5th Cir. 1972); United States v: Garcia, 431 F.2d 134 (9th Cir. 1970).

This Court would have no difficulty in finding that the defendant was fully informed of all of his Miranda rights if the record revealed the content of the other warnings given the defendant (if in fact those warnings were adequate). However, the bare statement of the conclusion that the defendant was advised of his rights, or even of his Miranda rights, from a card or printed form, is insufficient. Thomas v. State, 370 So.2d 1066, 1070 (Ala.Cr.App. 1978), cert. quashed, 370 So.2d 1070 (Ala. 1979). The prosecution must show of what rights the defendant was advised so that the trial judge may make the initial determination of voluntariness.

We cannot hold that the admission of the confession was harmless error because the confession was in direct contradiction of the defendant’s trial testimony.

The judgment of the Circuit Court is reversed and the cause remanded.

REVERSED AND REMANDED.

All Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Boykin JONES v. STATE.
    2 Civ. 278.
    Court of Criminal Appeals of Alabama.
    March 17, 1981.

      John A. Lockett, Jr., Selma, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Geri., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant (appellant) guilty of murder in the first degree and fixed his punishment at life imprisonment. The court sentenced him accordingly.

According to the undisputed evidence, the alleged victim was killed on March 23,1979, by a shot or shots fired from a pistol while in a hand or the hands of defendant, or in a hand or the hands of the victim, or in a hand or the hands of each while both were in the home of the victim. Three bullets went through parts of his body. Two went through his head, and one penetrated his neck. Defendant had been courting the granddaughter of the victim who lived at the home of the victim. The pistol belonged to the victim. Testimony of the granddaughter was to the effect that she had become unenamored of defendant and desired his company no longer, that defendant became enraged in failing to obtain the aid of the grandfather, took the pistol and without justification fired three shots at him in rapid succession. Defendant testified that the grandfather had the pistol in hand and that it was fired while the two were struggling for the pistol. He claimed that he did not intentionally kill the victim and that his conduct was in self-defense. Immediately after the homicide defendant left the state and was apprehended in Los Angeles, California, and was then returned to Alabama. The evidence amply supported the verdict, and there is no contention to the contrary.

The only issue raised by appellant is as to the action of the court in overruling defendant’s objection to the admission in evidence of four photographs of the body of the deceased that were taken by Dr. Richard Roper, of the Alabama Department of Forensic Sciences, while performing an autopsy thereon in his official capacity.

The objections of counsel for the defendant to the introduction of the photographs were heard and considered by the court out of the presence of the jury, as shown by five pages of the transcript immediately before the testimony of Dr. Roper. The gist of the objections stated was to the effect that the court had previously ordered the “District Attorney” to let defendant’s counsel “inspect these and produce them for inspection” but that the district attorney “failed to do so and is in violation of the Court’s Order.” It seems undisputed that the particular photographs were not in the possession of the district attorney until the Friday before the Monday upon which the trial of the case commenced and that defendant’s counsel had no knowledge of the particular photographs until Tuesday, the second day of the trial. It appears that it was the view of the district attorney that the circumstances stated justified his failure to produce for the inspection of defendant’s counsel the particular photographs. In making known his views, the trial judge said, inter alia:

“Yes, sir; but it also involves fair play, Mr. Morrow. It involves a full disclosure on the part of the State of the things that they are under order to disclose. Now if you knew of the existence of the photographs, you could at least have told them that Dr. Roper had them and asked them to inquire of Dr. Roper. Now I’m not saying it’s all up to you to prepare the Defendant’s case, it’s not. You’re here to prepare the State’s case. But at the same time, when we have a conference, pretrial conference and in it we have a Motion to Produce and Inspect and we go down item by item and we rule on each one of them, then they have a right to rely on what comes out of the pretrial conference.”

The court stated further, “Sometime between Friday and Monday you could have let them know that Roper had those photographs.”

It was the contention of defendant, and is appellant’s present contention, that the photographs reveal “that the trajectory of the bullets .. . negates the self-defense theory.” In commenting on defendant’s position, the court said, inter alia:

“ ... I can’t see where really the withholding of these photographs prejudices the Defendant’s case. There is nothing you can do about them. They are certainly admissible. The only thing is that you feel rightly or not rightly, and I’m not passing judgment on that, but you feel like you haven’t been treated fairly in connection with the evidence. It certainly doesn’t in any way, as I see it, prejudice your rights or the right to have those photographs in evidence. They are of probative value and I don’t know what you could have done about them . .. . ”

One of defendant’s counsel then said:

“It has a wire running through the exit and entrance wound of the alleged deceased. It would show the trajectory of the bullet which would change the preparation of our case in this instance.”

We do not have the benefit of what was said by the parties on the hearing of the motion to produce for inspection, as the trial court did. Furthermore, the record does not disclose fully the order of the trial court as to the motion to produce. We note from the motion to produce that it is extraordinarily lengthy and tends to cover almost every conceivable item, but that it lacks specificity. We can see, as appellant contends, the possibility that from a standpoint of advisable tactics there would have been a change in the way counsel prepared and presented the defendant’s case if counsel had known before the trial started of the existence of the photographs, but we cannot say that the material evidence as to defendant’s guilt or innocence would have been any different from what it was. We can also see that if counsel for the state had intentionally withheld the photographs from inspection by defendant’s counsel in order to trap defendant’s counsel into an unwise tactical maneuver, defendant’s counsel would have just ground for complaint, but there is neither evidence nor a contention to that effect.

Although suppression of evidence to which a defendant is entitled in a criminal case may constitute a violation of the Due Process clause of the Fifth Amendment as amplified in coverage by the Fourteenth Amendment to the Constitution of the United States irrespective of whether the suppression has been intentional, the evidence must have a material bearing upon the question of the guilt or innocence of the defendant, which would exclude evidence that tends merely to cause defendant to overextend himself tactically.

“Whether or not procedural rules authorizing such broad discovery might be desirable, the Constitution surely does not demand that much. While expressing the opinion that' representatives of the State may not ‘suppress substantial material evidence,’ former Chief Justice Tray-nor of the California Supreme Court has pointed out that ‘they are under no duty to report sua sponte to the defendant all that they learn about the case and about their witnesses.’ In Re Imbler, 60 Cal.2d 554, 569 [35 Cal.Rptr. 293, 301], 387 P.2d 6, 14 (1963). And this Court recently noted that there is ‘no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.’ Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562 [2568] 33 L.Ed.2d 706. The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” United States v. Agurs, 427 U.S. 97, 100, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342, 353 (1976).

The protection of the due process clause is primarily in the field of exculpatory rather than inculpatory evidence. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

It should be said also that the photographs were seen by defendant’s counsel before Dr. Roper testified and well before the .defendant presented his evidence, including his own testimony.

Our opinion is that the trial court gave due consideration to all that was said and all that could have been said on the particular issue and correctly concluded that the photographs should be admitted in evidence notwithstanding the objections proposed by defendant.

We find no error in the record prejudicial to defendant. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.


author: McDONALD, Justice.

text:
    METROPOLITAN DADE COUNTY and the Board of County Commissioners of Metropolitan Dade County, Appellants, v. CITY OF MIAMI, City of Miami Beach, Sol Green, Lynn Jacobs, Charles Bardakji, Omni International Talent Associates, Inc., Appellees.
    No. 57406.
    Supreme Court of Florida.
    Oct. 16, 1980.
    As Modified on Denial of Rehearing April 14, 1981.
    Stuart L. Simon, Dade County Atty., and R. A. Cuevas, Jr., Asst. County Atty., Miami, for appellants.
    George F. Knox, Jr., City Atty., and Mik-ele S. Carter, Asst. City Atty., Miami, for City of Miami.
    Robert L. Shevin, City Atty., and Bruce M. Singer, Asst. City Atty., Miami Beach, for City of Miami Beach.
    Richard N. Friedman, Miami, for Sol Green, Lynn Jacobs, Charles Bardakji, Omni Intern. Talent Associates, Inc.
   McDONALD, Justice.

Dade County appeals a judgment invalidating a county ordinance regulating taxicabs throughout Dade County, including the cities of Miami and Miami Beach. The trial judge based his ruling on a declaration that article VIII, section 4, Florida Constitution prevails over article VIII, section 6(e), Florida Constitution. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution (1972).

In 1974 the legislature transferred all of the Public Service Commission’s existing authority to regulate taxicabs to those charter counties which wished to accept that responsibility. The voters of Dade County amended their home rule charter in 1976 to expand the county’s authority to regulate taxicabs to include the entire county. In 1979 the county enacted an ordinance designed to provide comprehensive countywide regulation of taxicabs. For many years prior thereto, however, the cities of Miami and Miami Beach had regulated taxicabs within their respective city limits. These cities filed suit contending that the county exceeded its authority in enacting such a comprehensive ordinance. To support their contention, the cities relied on section 323.052(3), Florida Statutes, which provides that cities regulating for-hire vehicles on July 1, 1974 would continue to do so “unless such authority is transferred to the county by a majority vote of the governing body of the municipality.” Neither city relinquished its authority by means of this statutory procedure or by any other method.

The trial court determined that two provisions of the state constitution pertain to the transfer of powers between counties and municipalities: Article VIII, section 4; and article VIII, section ll(l)(d), 1885 Constitution, which is incorporated into the 1968 Constitution by article VIII, section 6(e). The trial court first found the challenged ordinance to have been properly enacted pursuant to section ll(l)(d) and the county home rule charter. The court also found, however, that section 4 controls over section 6(e). According to the trial court, therefore, the “or as otherwise provided by law” language in section 4 means that the general law provision in section 323.052(3) should prevail over the home rule provisions in sections 6(e) and ll(l)(d), the county home rule charter, and the case law interpreting those provisions. Since the statutory procedure had not been followed, the court invalidated the ordinance, and this appeal followed.

To support its finding that section 4 prevails over section 6(e), the trial court relied on Sarasota County v. Town of Longboat Key, 355 So.2d 1197 (Fla.1978). That reliance is misplaced. Sarasota County, stands for the proposition, inter alia, that both charter and noncharter counties are subject to the provisions of section 4. The instant case, on the other hand, presents the question of whether section 4 prevails over the explicit savings clause in section 6(e).

The main purpose in construing constitutional provisions is to ascertain the intent of the framers and to effectuate the object designed to be accomplished. State ex rel. Dade County v. Dickinson, 230 So.2d 130 (Fla.1969); State ex rel. West v. Gray, 74 So.2d 114 (Fla.1954); Amos v. Mathews, 99 Fla. 1, 126 So. 308 (1930); Mugge v. Warnell Lumber & Veneer Co., 58 Fla. 318, 5Ó So. 645 (1909). Section 6(e) is a clear and unambiguous statement of intent by the state’s electors. That section provides that the Dade County Home Rule Amendment (section 11, article VIII, 1885 Constitution) “shall remain in full force and effect ... as if this article [VIII, 1968 Constitution] had not been adopted.” To hold that section 4 prevails over this direct savings clause would go against the intent expressed in section 6(e) and would thwart the objective of preserving Dade County’s constitutional home rule amendment. We hold, therefore, that section 6(e) controls over section 4 and that the trial court erred in finding otherwise.

Because of its finding that section 4 prevails over section 6(e), the trial court saw no necessity to rule on the conflict between the county ordinance and section 323.052(3). Due to our holding above, however, that question must now be considered.

This Court has noted that the metropolitan government of Dade County is unique in this state due to its constitutional home rule amendment. See McNayr v. Kelly, 184 So.2d 428 (Fla.1966). That amendment gives Dade County numerous powers which set Dade apart from the state’s other counties. One such difference is Dade County’s power to enact ordinances, when expressly authorized by the home rule amendment, which conflict with the state constitution or with state law.

Numerous decisions have invalidated Dade County ordinances and parts of the Dade County Charter, however, because of impermissible, unauthorized conflict with the state constitution or with general state law. In State ex rel. Dade County v. Dickinson, 230 So.2d 130 (Fla.1969), this Court held that nothing in the Dade County Home Rule Amendment allowed that county to exceed the ten-mill constitutional cap on county taxes. This Court has also found nothing in section 11 which would permit Dade County cities to abrogate the statutory debt limit imposed on cities. Seminole Rock Prods., Inc. v. Town of Medley, 180 So.2d 457 (Fla.1965). Since state law recognized fortunetelling and similar occupations, a Dade County ordinance prohibiting engaging in such occupations was invalidated because the home rule amendment did not expressly reserve such power in the county. Board of County Comm’rs. of Dade County v. Boswell, 167 So.2d 866 (Fla.1964). In Kaulakis v. Boyd, 138 So.2d 505 (Fla. 1962), this Court struck down a section of the county charter which waived the county’s tort immunity. Nothing in section 11 permitted such waiver, and the constitution specifically prohibited it. The Court also invalidated Dade County’s 1958 taxicab ordinance as creating impermissible conflict with state law. Dade County v. Mercury Radio Serv., Inc., 134 So.2d 791 (Fla.1961). Finally, in Dade County v. Kelly, 99 So.2d 856 (Fla.1957), the Court held that Dade could not make piecemeal transfers of the sheriff’s duties, in contravention of the governor’s constitutional power to remove constitutional officers, without abolishing the office of sheriff.

The Third District Court of Appeal has also considered whether Dadé County ordinances can conflict with general laws and with the state constitution. That court struck down Dade’s requirement that claims against the county be filed within sixty days as being in unauthorized conflict with the statutory three-year notice period. Scavelia v. Fernandez, 371 So.2d 535 (Fla. 3d DCA 1979). Likewise, the four-year statute of limitations on filing suit against a county was found to prevail over Dade’s reduction of that time to one year. Dade County v. Lambert, 334 So.2d 844 (Fla. 3d DCA 1976).

In the above-cited cases, the conflict has been in areas not specifically authorized by section 11. In several cases, on the other hand, either authorized, permissible conflict, or no conflict, has been found, resulting in the validation of numerous county ordinances and portions of the county charter. Such cases are not controlling in the instant case, however, because we hold that the ordinance in question is not expressly authorized by section 11.

The Dade County Home Rule Charter Amendment specifically provides that Dade County can do nothing to limit or restrict the power and jurisdiction of the Public Service Commission. Prior to the 1974 amendment which prompted the instant case, chapter 323 provided that the power to regulate taxicabs resided solely with the Public Service Commission and with the state’s municipalities. Counties, whether chartered or not, shared none of this power. Thus, this Court struck down Dade County’s 1958 attempt to regulate taxicabs in the county’s unincorporated areas, regardless of an original charter provision permitting such regulation. Dade County v. Mercury Radio Serv., Inc., 134 So.2d 791 (Fla.1961).

By passing the amendment allowing charter counties to regulate taxicabs, the legislature has acknowledged that thereafter such regulation is a function subject to countywide control. If that amendment had said no more, the ordinance in question would be valid. See Miami Shores Village v. Cowart, 108 So.2d 468 (Fla.1958).

The legislature’s grant of authority to charter counties to regulate taxicabs, an authority the counties did not previously have, however, is a limited grant. It includes a proviso allowing municipalities to continue such regulation unless they formally and affirmatively accede to their counties’ authority. The appellee cities in the instant case did not give up their power to regulate taxicabs in the manner specified by statute. Since the transfer of powers proviso is such an integral part of the total amendment, there is no way to separate that limitation on a charter county’s power from the grant of power to charter counties.

Although the Dade County Home Rule Amendment allows that county to enact ordinances which conflict with state law, it can do so only when such conflict is in areas specifically authorized in the home rule amendment. We can find no provision in section 11 that expressly authorizes Dade County to contravene the method of transferring power set out in section 323.052(3). We have kept in mind the home rule amendment’s admonishment that section 11 is to be liberally construed in order to effectuate the purpose of giving home rule to Dade County. Section 11 also provides, however, that, if conflict is not expressly authorized, general state law must prevail. Indeed, if unauthorized conflict is found, we are instructed that section 11 is to “be strictly construed to maintain . . . [the] supremacy of this Constitution and of the Legislature in the enactment of general laws pursuant to this Constitution.” Art. VIII, § 11(9), Fla.Const. (1885).

We hold, therefore, that the ordinance in question is in unauthorized conflict with state law because Dade County did not follow the statutory method for transferring power. The ordinance is invalid to the extent that the county seeks to regulate taxicabs in Miami and Miami Beach. Unless the cities of Miami and Miami Beach accede to regulation by the county, Dade County does not have the authority to usurp the regulation of taxicabs within the city limits of those municipalities. We thus affirm the judgment of the trial court, but for different reasons.

It is so ordered.

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

BOYD, J., dissents.

      . Art. VIII, § 4, Fla.Const., reads as follows:
      Transfer of powers.-By law or by resolution of the governing bodies of each of the governments affected, any function or power of a county, municipality or special district may be transferred to or contracted to be performed by another county, municipality or special district, after approval by vote of the electors of the transferor and approval by vote of the electors of the transferee, or as otherwise provided by law.

      . Art. VIII, § 6(e), Fla.Const., reads as follows:
      (e) CONSOLIDATION AND HOME RULE. Article VIII, Sections 19, 2 10, 8 11 and 4 24, of the Constitution of 1885, as amended, shall remain in full force and effect as to each county affected, as if this article had not been adopted, until that county shall expressly adopt a charter or home rule plan pursuant to this article. All provisions of the Metropolitan Dade County Home Rule Charter, heretofore or hereafter adopted by the electors of Dade County pursuant to 8 Article VIII, Section 11, of the Constitution of 1885, as amended, shall be valid, and any amendments to such charter shall be valid; provided that the said provisions of such charter and the said amendments thereto are authorized under said 8 Article VIII, Section 11, of the Constitution of 1885, as amended.

      . § 323.052(1), Fla.Stat., which reads as follows:
      (1) Notwithstanding any other provisions of this part to the contrary, any chartered county may regulate and license for-hire passenger motor vehicles in the unincorporated area of the county and in those municipalities that do not regulate such vehicles on July 1, 1974, or that do not adopt regulations at least as strict as those initially adopted by the county, by filing with the Public Service Commission a written resolution that the county will be assuming regulatory jurisdiction of for-hire passenger motor vehicles throughout said county. Said resolution shall not become effective sooner than 90 days from the date the resolution is received by the commission. When said date arrives, the county that has filed its intent to regulate and license shall have exclusive jurisdiction to regulate and license for-hire passenger motor vehicles in the unincorporated area of said county and those municipalities specified above, and no other body shall have jurisdiction to regulate and license such for-hire passenger motor vehicles in such areas. This subsection shall be authority for the chartered counties of the state, solely within the areas herein defined and upon the election set forth herein, to exercise all powers and functions of regulation, ' including, but not limited to, permits, areas of operation, rates and charges, inspection, and any other powers presently held by the Public Service Commission. Any chartered county making the election set forth herein shall adopt by ordinance, after holding public hearings, a complete set of rules and regulations which shall apply to all regulatory aspects within the areas herein defined.

      . § 323.052(3), Fla.Stats., reads as follows:
      (3) Any municipality regulating and licensing for-hire passenger motor vehicles on July 1, 1974, shall retain all its existing powers under this chapter .. . unless such authority is transferred to the county by a majority vote of the governing body of the municipality.

      . SECTION 11. Dade County, home rule charter.-(l) The electors of Dade County, Florida, are granted power to adopt, revise, and amend from time to time a home rule charter of government for Dade County, Florida, under which the Board of County Commissioners of Dade County shall be the governing body. This charter:

      (d) May provide a method by which any and all of the functions or powers of any municipal corporation or other governmental unit in Dade County may be transferred to the Board of County Commissioners of Dade County.

      . Art. VIII, § 11(5), Fla.Const. (1885), which reads as follows:
      (5) Nothing in this section shall limit or restrict the power of the Legislature to enact general laws which shall relate to Dade County and any other one or more counties in the state of Florida or to any municipality in Dade County and any other one or more municipalities of the State of Florida, and the home rule charter provided for therein shall not conflict with any provision of this Constitution nor of any applicable general laws non applying to Dade County and any other one or more counties of the State of Florida except as expressly authorized in this section nor shall any ordinance enacted in pursuance to said home rule charter conflict with this Constitution or any such applicable general law except as expressly authorized herein, nor shall the charter of any municipality in Dade County conflict with this Constitution or any such applicable general law except as expressly authorized herein, provided however that said charter and said ordinances enacted in pursuance thereof may conflict with, modify or nullify any existing local, special or general law applicable only to Dade County, (emphasis supplied)

      . See also Dade County v. Acme Specialty Corp., 292 So.2d 378 (Fla. 3d DCA 1974), in which that court, without discussing the county’s home rule powers, struck down a county ordinance prohibiting the sale of sparklers when such sale was permitted by statute.

      . Buckress Land Co. v. Metropolitan Dade County, 232 So.2d 384 (Fla. 1970); Dade County v. Kelly, 153 So.2d 822 (Fla. 1963); In re Advisory Opinion to the Governor, 116 So.2d 425 (Fla. 1959); Miami Shores Village v. Co-wart, 108 So.2d 468 (Fla.1958); Dade County v. Young Democratic Club of Dade County, 104 So.2d 636 (Fla.1958); City of Sweetwater v. Dade County, 343 So.2d 953 (Fla. 3d DCA 1977); Jordan Chapel Freewill Baptist Church v. Dade County, 334 So.2d 661 (Fla. 3d DCA 1976); City of North Miami Beach v. Metropolitan Dade County, 317 So.2d 110 (Fla. 3d DCA 1975); State ex rel. Lehman v. Buchanan, 190 So.2d 594 (Fla. 3d DCA 1966); Carol City Utils., Inc. v. Dade County, 183 So.2d 227 (Fla. 3d DCA 1966); City of Miami v. Benitez, 116 So.2d 463 (Fla. 3d DCA 1959). See also In re Advisory Opinion of the Governor, 313 So.2d 697 (Fla. 1975) (recognizing that, although the Dade County Commission has the power to fill vacant offices, the governor has the power to fill offices during a period of suspension).

      .Art. VIII, § 11(7), Fla.Const. (1885), which reads as follows:
      (7) Nothing in this section shall be construed to limit or restrict the power and jurisdiction of the Railroad and Public Utilities Commission or of any other state agency, bureau or commission now or hereafter provided for in this Constitution or by general law and said state agencies, bureaus and commissions shall have the same powers in Dade County as shall be conferred upon them in regard to other counties.

      . Art. VIII, § 11(5), Fla.Const. (1885).

      . Art. VIII, § 11(9), Fla.Const. (1885).

      . Art. VIII, § 11(6), Fla.Const. (1885).

      . Ch. 76-168, § 3, Laws of Fla., as amended by ch. 77-457, § 1, Laws of Fla., repealed ch. 323, Fla.Stat., in its entirety, effective July 1, 1980. Thus, § 323.052(3) was of no force and effect on the original publication date of this opinion. In its motion for rehearing, Dade County contends that lack of conflict (due to the repeal of ch. 323) on the date of publication requires our approval of the ordinance in question. The ordinance, however, was invalid as to Miami and Miami Beach when passed. Repeal of a statute does not validate an ordinance which is void at its inception.


author: ADKINS, Justice. ALDERMAN, Justice,

text:
    Antonio AGUILAR, Appellant, v. COMMUNITY GENERAL HOSPITAL et al., Appellees.
    No. 55225.
    Supreme Court of Florida.
    March 12, 1981.
    Stanley M. Rosenblatt, Miami, and Robyn Greene of Greene & Cooper, Miami, for appellant.
    Raymond T. Elligett, Jr. of Shackleford, Farrior, Stallings & Evans, Tampa, and Robert L. Trohn of Lane, Massey, Trohn, Clarke, Bertrand & Smith, Lakeland, for appellees.
   ADKINS, Justice.

This appeal involves the constitutionality of section 768.44(l)(c), Florida Statutes (1977). The two-year-old daughter of Antonio and Emérito Aguilar died on March 30, 1975, after Dr. Aspell and Jackson Memorial Hospital (hereinafter JMH) allegedly refused to treat the child or admit her to the hospital. Pursuant to the Medical Malpractice Reform Act, Aguilar filed a claim for wrongful death against Aspell and JMH on March 11,1977, eighteen days before the running of the applicable statute of limitations. § 95.11(4), Fla.Stat. (1977). Summons was served on JMH on March 15, 1977; JMH answered on April 7, 1977. Summons was served on Aspell on April 11, 1977; Aspell answered on April 21, 1977. From these facts it is clear that Aspell answered within the required twenty-day period, but that JMH did not. § 768.-44(l)(c), Fla.Stat. (1977). All parties actively participated in mediation proceedings but no hearing was ever held, so on November 7,1977, the referee entered an order .declaring that the panel’s jurisdiction had terminated as of September 1, 1977. § 768.44(3), Fla.Stat. (1977).

On October 6, 1977, Aguilar filed a complaint in Pasco County Circuit Court. Aspell and JMH moved for summary judgment. In granting these motions, the court ruled that:

JMH’s failure to file its answer on or before April 4, 1977 caused the mediation panel ... to lose jurisdiction on April 5, 1977 as to both defendants. § 768.-44(l)(e), Fla.Stat.
Plaintiff filed [the circuit court action] on October 6,1977, which was neither within two years of March 30,1975 nor within 60 days of April 5,1977. The action was not timely filed and is therefore barred by the statute of limitations. §§ 95.11(4)(d), 768.44(4), Fla.Stat.

Aguilar moved for rehearing, asserting that the circuit court had unconstitutionally construed section 768.44(l)(c), Florida Statutes (1977). The motion was denied.

This Court has jurisdiction since the trial court inherently ruled on the constitutional validity of section 768.44(l)(c) when it denied Aguilar’s motion for rehearing. Art. V, § 3(b)(1), Fla.Const. (1972); Dyk-man v. State, 294 So.2d 633 (Fla.1973); Rojas v. State, 288 So.2d 234 (Fla.1973).

Aldana v. Holub, 381 So.2d 231 (Fla.1980), disposes of no issues in this case since all mediation panel proceedings were concluded prior to the effective date of that decision February 28, 1980.

The Court must determine if Aguilar’s circuit court action was barred by the statute of limitations. Resolution of this issue hinges upon the Court's construction of section 768.44(l)(c), Florida Statutes. That section provides in part:

All parties named as defendants in the claim shall file an answer to such claim within 20 days of the date of service.... If no answer is filed within such time limit, the jurisdiction of the mediation panel over the subject matter shall terminate, and the parties may proceed in accordance with law.

(Emphasis added). Considering the plain language of the statute only one construction is reasonable, as was recognized by the First District Court of Appeal in Baptist Memorial Hospital v. Beaty, 364 So.2d 546 (Fla. 1st DCA 1978).

The phraseology used by the legislature indicates that it intended that jurisdiction of the panel would terminate if no answer were filed by any of the defendants; that if an answer were filed by any defendant, jurisdiction would continue as to all. Had it intended otherwise,, it could easily have said so. To read another meaning into the statute would alter its terms as written. This interpretation is entirely logical because a plaintiff who files a claim with a mediation panel against several defendants thereby indicates a desire to bring his action against them in one single lawsuit. If the construction of the statute advocated by appellants were adopted, appellees would be forced to file a separate lawsuit upon the same incident against the nonparticipating appellants and prosecute it during the continuation of the mediation proceedings with the remaining defendant. Then at the conclusion of mediation, appellees would have to litigate before the court in a separate lawsuit the claim against the remaining defendant thus creating a multiplicity of lawsuits.

Id. at 547-48. Appellees cite Latorra v. Patrick, 359 So.2d 463 (Fla. 4th DCA 1978), and Johnson v. Crawford, 361 So.2d 741 (Fla. 4th DCA 1978), as inconsistent with Beaty. Both Latorra and Johnson concern instances where one of a number of defendants failed to properly file an answer within twenty days of service, of the complaint, and then later petitioned for review of the order dismissing them from the mediation proceeding. In each case, the Fourth District Court of Appeal held that failure to meet the twenty-day requirement resulted in a loss of the panel’s jurisdiction over the individual defendant. Neither case held that jurisdiction over the defendants properly filing an answer was lost, and neither case addressed the effect of the decision on the statute of limitations. § 768.44(4), Fla. Stat. (1977).

The distinction to be drawn between Beaty and Latorra and Johnson focuses on the difference between jurisdiction over a particular defendant and jurisdiction over the subject matter of the mediation proceeding. ' A correct interpretation of section 768.44(l)(c) reveals that while failure to file a timely answer will terminate jurisdiction over a particular defendant, jurisdiction over the subject matter will continue if at least one defendant files a timely answer. Hence Beaty, Latorra, and Johnson are in fact consistent, and the holding in Beaty resolves the case sub judice.

JMH’s failure to file an answer to Aguilar’s claim before April 5, 1977, caused the panel to lose jurisdiction over JMH; i. e., terminated JMH’s right to participate in mediation proceedings. Conversely, Aspell’s timely answer preserved the panel’s jurisdiction over the subject matter of the proceeding, and entitled Aspell to utilize the mediation process. Jurisdiction over the subject matter of the mediation proceeding would have terminated (for purposes of section 768.44(l)(c)) only if both JMH and Aspell had failed to answer within the required period.

For lack of any hearing within six months after the mediation claim was filed, the panel’s jurisdiction terminated on September 11, 1977. § 768.44(3), Fla.Stat. (1977). Aguilar had sixty days from that date, or until November 10,1977, to initiate a wrongful death action in circuit court. The suit dismissed by the trial court was filed on October 6, 1977, and is therefore not barred by the statute of limitations.

The order of dismissal is reversed and the cause is remanded to the trial court for further proceedings.

SUNDBERG, C. J., and BOYD and ENGLAND, JJ., concur.

ALDERMAN, J., dissents with an opinion, with which OVERTON and MCDONALD, JJ., concur.

ALDERMAN, Justice,

dissenting.

Although I agree with the majority’s disposition of the merits, I would transfer this cause to the district court for its review of the trial court’s order since we are without jurisdiction in this case. The majority premises its jurisdiction on the trial court’s inherent ruling on the constitutionality of section 768.44(l)(c) when it denied rehearing. The burden is on Antonio Aguilar, acting as the personal representative of the estate of Rose Marie Aguilar, who is the appellant before us, to establish that this Court has jurisdiction to act in this appeal. State v. Bruno, 104 So.2d 588 (Fla.1958).

Here, the trial court, in its final summary judgment in favor of defendants Aspell and Jackson Memorial Hospital, did not pass on the constitutionality of section 768.44(l)(c) either expressly or inherently but rather construed this section to mean that when one defendant fails to file a timely answer, jurisdiction of the medical mediation panel terminates. Then, in a rehearing motion, plaintiff alleged, among other things, that the trial court’s construction of the statute rendered it unconstitutional. The trial court entered a brief order simply saying: “ORDERED AND ADJUDGED as follows: 1. Plaintiff’s Motion for Rehearing is hereby denied.”

In my view, it is not apparent that the trial court, in denying rehearing, inherently upheld the constitutionality of section 768.-44 since it was not necessary to the disposition of this cause that it pass on the validity of this statute. It construed the statute in a manner it thought was correct, and, in denying rehearing, it was merely finding no basis in the rehearing petition to cause it to retreat from its original position. We have ofttimes reiterated that it is the duty of a court not to pass upon the validity of a statute if the case can be properly decided on other grounds. McKibben v. Mallory, 293 So.2d 48 (Fla.1974). Unless the contrary is evident, we must presume that the trial court observed this rule. State v. Bruno. In the present case, the contrary is not evident, and we cannot assume from the record before us that the trial court passed on the constitutionality of a statute. Cf. Davis v. Department of Health and Rehabilitative Services, et al., 390 So.2d 1194 (Fla.1980).

I would, therefore, transfer this appeal to the District Court of Appeal, Second District.

OVERTON and McDONALD, JJ., concur.


author: ADKINS, Justice. SUNDBERG, Chief Justice,

text:
    John Otis GRIFFIN, Appellant, v. STATE of Florida, Appellee.
    No. 56240.
    Supreme Court of Florida.
    March 12, 1981.

      Joel Hirschhorn, Miami, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., Miami, for appellee.
   ADKINS, Justice.

This is a direct appeal from a final judgment of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County upholding the constitutionality of section 847.014, Florida Statutes (1977). We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. (1972).

The appellant (defendant below), John Otis Griffin, was charged by information with producing or directing obscene photos involving a minor and with procuring a minor for obscene photos, in violation of sections 847.014(2)(a)(l) and (2)(a)(2), Florida Statutes (1977).

Section 847.014 reads in part as follows:

847.014 Minors participating in harmful motion pictures, exhibitions, shows, presentations, or representations.—
(2) OFFENSES AND PENALTIES.—
(a)l. It is unlawful for any person knowingly to produce, conduct, direct, perform, or participate in any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, depicts sexual conduct, sexual excitement, or. sadomasochistic abuse involving a minor.
2. It is unlawful for any person knowingly to aid, abet, counsel, hire, or otherwise procure a minor to perform or participate in any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, depicts sexual conduct, sexual excitement, or sadomasochistic abuse involving a minor.

These subsections rely upon various definitions set forth in the statute as follows:

(1) DEFINITIONS. — As used in this section:
(a) “Minor” means any person under the age of 18 years.
(c) “Sexual conduct” means acts of masturbation; sexual intercourse; or physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person be a female, breast or any act or conduct which constitutes the commission of sexual battery or suggests that such crime is being or will be committed.
(d) “Sexual excitement” means the condition of human male or female geni-tais when in a state of sexual stimulation or arousal.
(e) “Sadomasochistic abuse” means the flagellation or torture by or upon a person clad in undergarments, a mask, or a bizarre costume or the condition of being fettered, bound, or otherwise physically restrained on the part of one so clothed.
(f) “Harmful to minors” means that quality, whether actual or simulated, of any description, exhibition, presentation, or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it:
1. Predominantly appeals to the prurient, shameful, or morbid interest of minors,
2. Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors, and
3. Is without serious literary, artistic, political or scientific value for minors.

The defendant’s motions to dismiss, attacking the constitutionality of the statute, were heard and denied. The defendant pled no contest to the charges, reserving the right to appeal the denial of his motions to dismiss. He was placed on probation for five years and was fined one-thóusand ($1,000.00) dollars.

The issues presented are whether section 847.014 is unconstitutional as being over-broad and void for vagueness, and contrary to the Constitutions of the United States and Florida; whether the information filed is sufficient as a matter of law; and whether the statute conflicts with article III, section 6, Florida Constitution, which requires that the subject of a statute be expressed in its title.

The defendant contends that section 847.014 is void for vagueness and clearly overbroad. In Zachary v. State, 269 So.2d 669, 670 (Fla.1972), the Court stated: “The test of a statute insofar as vagueness is concerned is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice.” [Citation omitted]. Measured by this test, we hold that the statute is impervious to attack upon the grounds of vagueness, as a person of common intelligence and understanding has adequate notice of the conduct proscribed. Sandstrom v. Leader, 370 So.2d 3 (Fla.1979).

“[T]he line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn.” Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1341, 2 L.Ed.2d 1460 (1958). In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), the United States Supreme Court held that obscenity was not within the constitutionally protected freedom of speech or press.

In Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419 (1973), the-United States Supreme Court announced a three-part test for determining whether a work was obscene.

The basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

[Citations omitted].

The Court also gave two examples of what a state could regulate under part (b) of the three-part test:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
(b) Patently offensive representation or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

413 U.S. at 25, 93 S.Ct. at 2615.

The defendant contends that subsections (2)(a)(l) and (2)(a)(2) of the statute fail to incorporate the three-part Miller test, all of which must be satisfied before any material is found to be obscene. The defendant’s reliance on Miller is misplaced because the statute in question does not proscribe constitutionally protected speech or activities, but prohibits specific conduct relating to minors. “[S]tates have greater power to regulate nonverbal, physical conduct than to suppress depictions or descriptions of the same behavior.” 413 U.S. at 26, 93 S.Ct. at 2616.

The well-being of children is a subject within the state’s constitutional power to regulate. Ginsburg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). A state may adopt more stringent controls on communicative materials available to minors than on those available to adults. Erzoznick v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975).

In United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968), a case not dealing with obscenity, the United States Supreme Court held that a state regulation of conduct embodying both speech and nonspeech elements is sufficiently justified if it furthers an important or substantial governmental interest, if the governmental interest is unrelated to the suppression of free expression, and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

The legislature has exercised its constitutional power to regulate in several areas for the well-being of its children. Activities such as gambling or purchasing alcoholic beverages are permitted for adults, but are prohibited for minors.

Acting within their constitutional powers and duties, the legislature enacted sections 847.014(2)(a)(l) and (2)(a)(2), to protect minors from conduct they determined to be harmful. “The Legislature has a great deal of discretion in determining what measures are necessary for the public’s protection, and this Court will not, and may not, substitute its judgment for that of the Legislature insofar as the wisdom or policy of the act is concerned.” Hamilton v. State, 366 So.2d 8, 10 (Fla.1978).

In deciding whether a statute is constitutional, every presumption is to be indulged in favor of the validity of the statute. Golden v. McCarty, 337 So.2d 388 (Fla. 1976). The defendant contends that “sexual conduct,” “sexual excitement,” and “sadomasochistic abuse” as defined by sections 847.014(l)(c)-(e) are overbroad.

Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.

Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2914, 37 L.Ed.2d 830 (1973).

[W]here conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.

413 U.S. at 615, 93 S.Ct. at 2917.

It has long been recognized that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society. As a corollary, the Court has altered its traditional rules of standing to permit — in the First Amendment area — “attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.” Dombrowski v. Pfister, 380 U.S. [479] at 486 [85 S.Ct. 1116 at 1120, 14 L.Ed.2d 22]. [1965] [Citations omitted.]

413 U.S. at 611-12, 93 S.Ct. at 2915-16.

Finding that the statute in question proscribes conduct, and not constitutionally protected speech or activities, we hold that the defendant does not have standing to attack the statute as it has not been unconstitutionally applied to him. We do not pass upon the question of overbreadth.

Next, the defendant contends that the information filed is insufficient as a matter of law, as it failed to sufficiently describe the obscene photos produced, for which he was charged. We reject the defendant’s argument, and find that the information was legally sufficient. See Johnson v. State, 351 So.2d 10 (Fla.1977).

The information filed by the state attorney tracked the language of the statute and named the minor pictured in the photos. The minor, a witness for the state, testified as to his involvement with the defendant, and described the photos in detail. It was upon this statement that the information was filed. A copy of the minor’s statement was given to the defendant, and the photos, although not included with the information or the minor’s statement, were made available for inspection. Rules 3.140(k)(l) and (kX2), Florida Rules of Criminal Procedure, provide that a picture may be described by words of general purport without setting forth a copy or facsimile of the picture.

Finally, the defendant argues that section 847.014 is unconstitutional because the title of the statute is not properly connected with the provisions of the statute. He contends that obscenity prosecutions go beyond the subject of the title.

The legislature is allowed wide latitude in enacting laws, and the courts will not strike down an act unless the title is plainly violative of the Constitution. Farabee v. Board of Trustees, 254 So.2d 1 (Fla.1971). The Constitution does not require that the title of an act contain a synopsis of all means by which the objective of the law is to be accomplished. City of Miami Beach v. Frankel, 363 So.2d 555 (Fla. 1978). A title is sufficient if it fairly gives adequate notice as will reasonably lead to further inquiry into the body of the act. Pruitt v. State, 363 So.2d 552 (Fla.1978). The title to section 847.014 gives fair and adequate notice of its contents for purposes of article III, section 6, Florida Constitution.

Accordingly, the judgment is affirmed.

It is so ordered.

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

SUNDBERG, C. J., concurs specially and dissents in part with an opinion, with which ENGLAND, J., concurs.

SUNDBERG, Chief Justice,

concurring specially and dissenting in part.

First, I find it unacceptable to assert that Griffin has no standing to mount a constitutional overbreadth challenge to the criminal statute under which he is convicted and punished. If he lacks standing, then who would have standing to challenge first amendment infringements of Florida’s relatively new child pornography statute aimed at producers? Griffin clearly has a concrete and vital interest, and unquestionably has a personal stake in the outcome. Second, I do not think that this Court should attempt to follow the distinction made in United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), between protected speech and non-protected conduct. The United States Supreme Court itself did not actually rely on this untenable distinction in O’Brien, and other cases trying to apply it have ended in a quagmire of sophism. Finally, I believe important and difficult first amendment issues are involved in this case which should not be slighted by this Court.

I.

This Court has followed the federal courts in the area of standing when it is asserted to challenge first amendment over-breadth of a statute. In State v. Keaton, 371 So.2d 86 (Fla.1979), we adopted the federal policy of a liberal grant of standing when overbreadth is asserted, because of the pervasive chilling effect an overbroad statute can have on first amendment freedoms. See Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977); Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Thus in Keaton we allowed standing for an overbreadth challenge by one charged under the statute prohibiting obscene telephone calls. Standing has been granted to an attorney to challenge the overbreadth of an anti-solicitation statute, even though his own conduct was unprotected. Pace v. State, 368 So.2d 340 (Fla.1979). Likewise, even a defendant convicted under the extortion statute has standing to challenge that statute on grounds that it was overbroad in affecting first amendment freedoms in general. Carnearte v. State, 384 So.2d 1261 (Fla.1980). This Court has voiced the same concerns as the United States Supreme Court in its liberal grant of standing whenever first amendment rights are implicated. Standing does not depend on the merits of the case, but is accorded to provide the greatest degree of judicial scrutiny for preservation of first amendment freedoms. This is especially necessary when the impact of the statute may be censorial in nature. See Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 918 (1970).

Part of Griffin’s challenge is based on infringement of his own first amendment rights and not those of others under the overbreadth doctrine. Whether he is right or wrong is simply irrelevant to the issue of his standing. So long as there is an injury to the complaining party and the necessary vital interest to insure a focused and sufficiently adversarial case, standing is present. See Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); Acme Moving & Storage Co. v. Mason, 167 So.2d 555 (Fla.1964). Griffin is perforce significantly affected by the statute.

The majority’s circular use of O’Brien to destroy Griffin’s standing is simply incorrect. O’Brien himself was granted standing to challenge the validity of a statute which prohibited burning of draft cards, in spite of the fact that his form of expression contained elements of conduct and in spite of the fact that his actions were held unprotected by the first amendment. Other cases concerning expressions of similar types of anti-war sentiments also allow standing to challenge particular states’ laws, theoretically directed at “conduct.” Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (misuse of American flag); Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) (slogan on jacket depreciates the draft). The majority relies on a small part of O’Brien as a means to deny Griffin standing, but chooses to ignore the rest of that case and others which grant standing without hesitation. Such an attitude is inconsistent with our previous liberal grant of standing when freedom of expression is involved.

II.

The majority has chosen to follow the distinction made in O’Brien between speech that is protected by the first amendment and conduct which is not. But a closer reading of that case reveals that it does not deny that the first amendment can apply to forms of conduct. Rather, the Supreme Court said that when expression is mixed with conduct, the state may more easily regulate these activities than it can more pure forms of expression. Id. at 376-78, 88 S.Ct. at 1678-79.

The Supreme Court later pointed out that the speech-conduct dichotomy was not really the basis of O’Brien by noting that the decision assumed the first amendment applied, because O’Brien went on to develop a four-part test for the constitutionality of a government regulation. See Buckley v. Valeo, 424 U.S. 1, 16, 96 S.Ct. 612, 633, 46 L.Ed.2d 659 (1976). The four-part test reads:

[W]e think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest.

O’Brien, 391 U.S. at 377, 88 S.Ct. at 1679. This four-part test is the critical part of O’Brien and not the speech-nonspeech distinction.

Indeed, close scrutiny of the speech-conduct dichotomy espoused in O’Brien reveals its chimerical nature:

[B]urning a draft card to express opposition to the draft is an undifferentiated whole, 100% action and 100% expression. It involves no conduct that is not at the same time communication, and no communication that does not result from conduct. Attempts to determine which element “predominates” will therefore inevitably degenerate into question-begging judgments about whether the activity should be protected.

Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 Harv.L.Rev. 1482, 1495 (1975) (footnote omitted). To base first amendment rights entirely on a speech-nonspeech distinction semantically avoids confronting the issue of what expression we will protect under the first amendment and what we will not. “A constitutional distinction between speech and nonspeech has no content. A constitutional distinction between speech and conduct is specious. Speech is conduct, and actions speak. There is nothing intrinsically sacred about wagging the tongue or wielding a pen; there is nothing intrinsically more sacred about words than other symbols.” Henkin, The Supreme Court, 1967 Term— Foreward: On Drawing Lines, 82 Harv.L. Rev. 63, 79 (1968). Clearly the speech-non-speech distinction cannot be the critical factor in determining first amendment protection since the Supreme Court has categorized as protected speech such physical conduct as wearing protest armbands in a high school. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Rather, the critical question focuses on the third requirement of O’Brien: the government interest must be unrelated to suppression of free expression. If the message’s content is itself the source of harm that the government seeks to suppress, then state suppression fails to meet the third test of O’Brien.

Courts that have examined the speech-nonspeech distinction have come out at opposite ends. In Southeastern Promotions, Ltd. v. City of Atlanta, 334 F.Supp. 634 (N.D.Ga.1971), the court held that the stage production “Hair” could not be dissected into speech and nonspeech components to circumvent first amendment application. Id. at 639. In contrast, the court in Southeastern Promotions, Ltd. v. Conrad, 341 F.Supp. 465 (E.D.Tenn.1972), found the identical stage production to be primarily conduct unprotected by the first amendment. Id. at 475-76. I doubt that a test which produces such disparate results adds much but confusion.

Accordingly, I dissent from that portion of the majority opinion which utilizes the speech-conduct dichotomy and denies standing to appellant to challenge the statute for overbreadth.

III.

Turning to the particular child pornography statute under attack, other courts which have dealt with similar first amendment challenges to this type of statute have reached various results. Recently, a federal court held the Texas child pornography statute unconstitutional. Graham v. Hill, 444 F.Supp. 584 (W.D.Tex.1978). The Texas statute, which was directed against dissemination, did not contain an obscenity requirement and was held unconstitutionally overbroad as infringing on first amendment rights. The court hinted that a statute aimed at the depiction of children engaging in sexual conduct, i. e., the production aspects of child pornography, would probably be constitutional, even without meeting the obscenity requirements of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973):

If the statute were limited to prohibiting the depiction of minors actually engaging in sexual conduct, or even if the statute merely prohibited the observance of actual sexual conduct by minors, the Court would likely have no hesitation in declaring its constitutionality.

Graham, 444 F.Supp. at 592. I believe this statement supports the constitutionality of the sections of Florida’s statute here challenged since they are aimed only at the production/procurement aspects of child pornography. Notably, Texas followed the advice of the district court in Graham and enacted a statute similar to Florida’s aimed at production and procurement, part of which contained no obscenity requirement. See Tex.Penal Code Ann. tit. 9, § 43.25 (Vernon Supp.1980).

The only other courts to deal with this issue have been in New York. In St. Martin’s Press, Inc. v. Carey, 440 F.Supp. 1196 (S.D.N.Y.1977), rev’d on other grounds, 605 F.2d 41 (2d Cir. 1979), the district court did not reach issues of first amendment over-breadth of the New York child pornography statute aimed at both the elements of production and dissemination, though it noted that there was a “serious question as to the facial constitutionality of [the statute].” Id. at 1205. The court went on to declare the statute unconstitutional on due process grounds not relevant to Florida’s statute. The doubts of the district court in St. Martin’s Press were directly confronted one year later when a lower state court upheld the New York statute against similar first amendment challenges in People v. Ferber, 96 Mise. 669, 409 N.Y.S.2d 632 (Sup.Ct. Trial Term 1978). The court balanced the “right of freedom of expression against the right of the Legislature to protect children against sexual exploitation,” upholding the statute in spite of its impact on dissemination as well as production. 409 N.Y.S.2d at 637.

We have used a similar balancing test in State v. Elder, 382 So.2d 687 (Fla.1980). In Elder we weighed the minimal free speech value associated with an unwanted, anonymous, abusive telephone call against the substantial privacy interests of the listener, to find that these privacy interests entitled the state to protect the unwilling recipient against such calls. Id. at 693. Balancing the freedom of expression interest of the producer or procurer of child pornography against the clearly more substantial state interest in protecting children from both physical and psychological harm that can readily result from participation in production of pornography as described by the statute, I have no hesitation in finding the scales heavily weighed in the state’s favor. This is especially true since the challenged sections of Florida’s statute deal with producers and procurers involved in child pornography. These persons clearly have a smaller first amendment interest than do persons who are involved in distribution:

In regulating the producer’s activity, the legislatures have consistently made the judgment that the state’s interest in protecting its children outweighs any first amendment right the producer might have in producing material depicting children engaged in certain sexual conduct. The legislative judgment appears constitutional, provided the prohibited sexual conduct is defined to only include activities that harm the child. Thus, legislation regulating producers need not require the ultimate product be obscene, and those imposing this requirement are unnecessarily strict, provided prohibited conduct covers only harmful activities.

Note, Protection of Children from Use in Pornography: Toward Constitutional and Enforceable Legislation, 12 U.Mich.J.L.Ref. 295, 310-11 (1979) (footnote omitted, emphasis added).

The challenged statute can also pass the four-part O’Brien test which I have quoted. The third part of this test is the only element that warrants examination in this case. The governmental interest must be unrelated to suppression of free expression:

The critical question would therefore seem to be whether the harm that the state is seeking to avert is one that grows out of the fact that the defendant is communicating, and more particularly out of the way people can be expected to react to his message, or rather would arise even if the defendant’s conduct had no communicative significance whatever.

Ely, Flag Desecration, supra at 1497 (footnote omitted). The harm that the state seeks to avert, the physical and psychological damage to children involved in producing pornography, is a harm independent from and unrelated to the communicative aspects of the depictions themselves. Thus, it is not the impact or effect the depiction would have upon the viewer but rather the harm surrounding the production aspects that is the focus of the statute.

Finding that sections 847.014(2)(a)(l) and (2), Florida Statutes (1977), can pass constitutional muster under either a balancing test or the O’Brien test, I would uphold these sections of the statute against first amendment challenges. I agree with the majority that Griffin’s other constitutional challenges are without merit.

ENGLAND, J., concurs.

      . The majority relies entirely on the following sentence:
      We cannot accept the view that an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea.

        United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968).

      . We have recognized this in State v. Elder, 382 So.2d 687 (Fla.1980), another challenge to the abusive telephone call statute, but to a different section than that involved in State v. Keaton, 371 So.2d 86 (Fla.1979):
      [T]he use of words as the method with which to harass the recipient of the call involves conduct mixed with speech, to which the controlling constitutional considerations differ somewhat from those applied to pure speech. Specifically, with regard to over-breadth, the applicable test is stated in Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 830 (1973): “[W]here conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substan-

        tial as well, judged in relation to the statute’s plainly legitimate sweep.”

        Elder, 382 So.2d at 690 (emphasis added). We recognized in Elder that some free speech concerns might be implicated by the abusive telephone call statute, but weighed these minimal concerns against the substantial privacy interests of the unwilling listener to be let alone. Id. at 692-93. Once again we did not declare that because a statute was directed primarily at regulating conduct and only secondarily involved speech, there was no first amendment concern, and therefore no standing to challenge the statute on an overbreadth basis. The difference between Keaton, which struck down a section of the abusive telephone call statute, and Elder, which upheld a related section against first amendment challenges, was the additional element of the unwilling listener contained in the section challenged in Elder. Both sections dealt with the same type of conduct, so the fact that conduct was involved could not have been ultimately determinative of whether first amendment freedoms had been violated.

      . It is arguable that child pornography statutes áre aimed in some part at the depictions themselves. These statutes do not protect children from all sexual abuse, but only sexual conduct used for depictions. The prohibition is not against sexual activity involving children, but rather against a depiction of that activity. Speech elements are therefore intertwined with conduct elements. See Note, Child Pornography: A New Role for The Obscenity Doctrine, 1978 U.Ill.L.F. 711, 743 n.156. See also Note, Protection of Children from Use in Pornography: Toward Constitutional and Enforceable Legislation, 12 U.Mich.J.L.Ref. 295, 309 (1979): “Because child pornography production and distribution involves visual material, legislation regulating such material must be considered with due regard for first amendment freedoms.”

        .Aff'd, 486 F.2d 894 (6th Cir. 1973), rev’d on other grounds, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975), rev’d without opinion, 516 F.2d 902 (6th Cir. 1975). Circuit Judge McCree pointed out in his dissent that the Supreme Court had “implicitly rejected the technique of excerpting and censoring specific conduct from a protected vehicle” in California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972). 486 F.2d at 899.

      . Justice Douglas has several times attacked this distinction as being ethereal. See Eisenstadt v. Baird, 405 U.S. 438, 458, 92 S.Ct. 1029, 1039, 31 L.Ed.2d 349 (1972) (concurring opinion); Brandenburg v. Ohio, 395 U.S. 444, 455, 89 S.Ct. 1827, 1833, 23 L.Ed.2d 430 (1969) (concurring opinion).

      . The circuit court of appeals felt that there was no “case or controversy” since St. Martin’s Press had never been prosecuted under the statute.

      . It is notable that none of these three cases confronting the issue which we now face has denied relief based on lack of standing. See Section I supra.

      . The potential for harm to a child involved in such activities is enormous:
      Perhaps the greatest harms are the emotional and psychological damage to the child who is forced to engage in various sexual acts at a young age. As a result of such early sexual encounters, it is often difficult for a child to develop healthy affectionate relationships in the future. Evidence shows that sexually abused children tend to have sexual dysfunctions later in life, including promiscuity and frigidity. Furthermore, children who have been sexually abused tend to become sexual abusers as adults. Hence, the psychological and emotional harm often extends throughout the life of the child.
      Note, Protection of Children from Use in Pornography, supra note 3, at 299-300 (citations, which include United States Senate and House reports on the subject, omitted).


author: ADKINS, Justice.

text:
    Gary HACKER, Petitioner, v. ST. PETERSBURG KENNEL CLUB et al., Respondents.
    No. 56939.
    Supreme Court of Florida.
    March 12, 1981.
    Ted L. Wells, Tampa, for petitioner.
    John W. Cash, Tampa, for respondents.
   ADKINS, Justice.

This case comes before the Court on petition for certiorari review of orders of the Industrial Relations Commission (IRC) and of the Judge of Industrial Claims (JIC) denying the petitioner’s claim for workmen’s compensation. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. (1972).

Gary Hacker, petitioner, was in the course of his employment as a gateman for the St. Petersburg Kennel Club on April 12, 1978, when he fell, hitting his head on a terrazzo floor. He sustained a concussion and other head injuries requiring hospitalization. It was speculated that club patrons had tracked in water from outside and that Hacker slipped on the wet floor. However, no evidence whatsoever has been uncovered as to how the injury occurred. Admittedly, Hacker is unable to recall what happened from about an hour and a half before the fall until he awoke in the hospital.

A workmen’s compensation claim was filed seeking temporary total benefits, all necessary medical costs, permanent total or partial benefits and attorneys’ fees. The employer and the carrier filed a notice to controvert on May 22,1978, contending that Hacker’s fall and injury did not arise out of and was not in the course of his employment.

On October 18, 1978, the JIC denied the claim, holding that the fall was totally idiopathic and not causally related to Hacker’s employment. On April 27, 1979, the IRC affirmed the order of the JIC. This petition followed.

The issue for resolution by this Court is:

Whether the JIC erred in denying the claim, ruling that the claimant’s fall was totally idiopathic, and failing to apply Section 440.26, Florida Statutes (1977)?

In order for an employee to recover for an injury suffered on the job, Florida’s workmen’s compensation law requires that three separate elements be present. The employee must have 1) met with an accident, 2) which occurred in the course-of his employment, and also 3) which arose out of his employment. § 440.26, Fla.Stat. (1977); see also Southern Bell Telephone & Telegraph Co. v. McCook, 355 So.2d 1166,1167-68 (Fla.1978).

There is no problem with the first two elements in the instant case. Clearly, petitioner was the victim of an accident which took place while he was acting in his capacity as a gateman at the kennel club. However, with regard to the third element necessary to petitioner’s claim the JIC found “[t]hat the claimant’s fall was totally idiopathic, without cause or relationship to his employment.” Hacker v. St. Petersburg Kennel Club, et a/., claim no. [ XXX-XX-XXXX ] (Judge of Industrial Claims 11-2-78). With regard to that finding, we hold that both the JIC and IRC were in error.

Under different circumstances the vitality of Hacker’s claim would be easy to determine. Had it been clear that the injury resulted from a slip on wet terrazzo, his claim would be compensable. On the other hand, had the evidence shown that he was injured when hitting the floor after a fainting spell due solely to a physical condition unrelated to his job, the claim would be denied. However, in this instance the record is devoid of evidence explaining how Hacker’s injury occurred. Recognizing that not all on-the-job injuries occur under ideal evidentiary conditions, the legislature had the foresight to provide a presumption resolving doubtful cases in favor of the claimant. On a larger scale, this presumption is one facet of a general policy in the workmen’s compensation area that, in marginal cases, a result favoring the claimant is preferred. See Sanford v. A. P. Clark Motors, 45 So.2d 185, 188 (Fla.1950). The presumption itself provides:

In any proceeding for the enforcement of a claim for compensation under this chapter, it shall be presumed, in the absence of substantial evidence to the contrary:
(1) That the claim comes within the provisions of this chapter.

§ 440.26, Fla.Stat. (1977). The impact of this presumption in the case sub judice seems unambiguous.

Operating under the presumption of section 440.26 in this case, the burden is shifted to the respondents to present substantial evidence that Hacker’s claim does not come under the workmen’s compensation statute. Stated more precisely, the burden is upon the respondents to present substantial evidence that Hacker’s injury did not arise from his employment, but from some other source. Presentation of such evidence would clearly necessitate denial of the claim. However, as illustrated by the total lack of evidence on the record suggesting that the accident had an idiopathic cause, respondents have not met this burden.

We are not unmindful of decisions of this Court holding that claimant must prove a causal connection between employment and injury, and that this connection may not be drawn by presumption. Ever-hard Masonry, Inc. v. Crowder, 139 So.2d 393 (Fla.1962); Arkin Construction Co. v. Simpkins, 99 So.2d 557 (Fla.1967). We affirm this rule insofar as it applied in those cases, where various and conflicting evidence of the cause of injury existed. However, we hold that this rule does not apply where, as in the instant case, the injury clearly occurs on the job and evidence of cause is non-existent. To decide otherwise would too often force an inequitable result.

Precisely stated, our holding here is a narrow one. We hold that where an accident occurs while an employee is at his place of employment during working hours under circumstances such that no evidence of cause is available, the burden shifts to the employer to show idiopathic cause if the claim for compensation is to be denied. Respondents failed to meet that burden. The statutory presumption of section 440.26, Florida Statutes (1977) and legislative attitudes favoring workmen’s compensation claimants requires such a result.

Accordingly, the orders of the JIC and IRC are reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

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

OVERTON and ALDERMAN, JJ., dissent.


author: BOYD, Justice.

text:
    CITY OF MIAMI, Petitioner, v. Montague ROSENBERG et al., Respondents.
    No. 57643.
    Supreme Court of Florida.
    March 12, 1981.
    George F. Knox, Jr., City Atty., and Joseph Hackney, Jr., Asst. City Atty., Miami, for petitioner.
    Brumer, Cohen, Logan, Kandell & Redlus and Sharon L. Wolfe of Greene & Cooper, Miami, for respondents.
   BOYD, Justice.

This is an appeal of an Industrial Relations Commission order reversing the recommendation of the Judge of Industrial Claims and granting workers’ compensation benefits to claimant who suffered a myocardial infarction. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

The facts in this case are not in dispute. Claimant was sixty-nine years old at the time of the incident and had been an attorney for almost fifty years. In 1972 he began work as an assistant city attorney for the City of Miami. In early 1976 the claimant began to experience stress at his job because of pressure from his superiors to retire. In denying the claim the Judge of Industrial Claims specifically found:

That City Attorney Lloyd and Acting City Attorney Watson embarked upon a course of conduct designed to force the claimant to resign from his job. He was transferred from his normal job of defending the City in tort actions to handling legal matters pertaining to contracts. This latter job was out of his line and he found it to be boring and difficult. In addition, he was assigned to a small office which he shared with another attorney which was demeaning as well as-inconvenient to him.
That shortly after Mr. Weston became Acting City Attorney, he advised the claimant he was going to fire him. The claimant wanted to continue working and advised Mr. Weston that he did not feel that he could fire him. As conditions worsened, the claimant became nervous, frustrated, despondent and depressed. Eventually, he was assigned no work at all. Mr. Weston was a contentious person with a military type personality. He created an air of constant friction between himself and the claimant. The claimant began smoking more heavily, and began to get pains in his left arm. John Ruff, a fellow employee in the City Attorney’s office, observed the claimant’s condition deteriorate. During this period of time, the claimant’s mind would wander, he became extremely nervous, got tickets for traffic violations, and had two or three minor traffic accidents.
That the claimant described his last six months with the City as a life of “living hell”.... His wife testified that, during this time, he became a chain smoker, was extremely nervous, could not sleep at night, he paced the floor at night, his color changed to a grayish color, and he became a completely changed man.
That on Sunday, October 3, 1976, the claimant suffered an acute myocardial infarction with acute atrial fibrillation and a left bundle branch block. The claimant had had no symptoms of a heart condition prior to the six month’s period immediately preceeding [sic] October 3, 1976.
That the claimant had long-standing arteriosclerotic heart disease with coronary atherosclerosis which pre-existed his heart attack of October 3, 1976. I find that the events described above, which the claimant was subjected to during the six months prior to his heart attack, did constitute unusual strain or over-exertion not routine to the type of work he was accustomed to performing. I further find that said strain or over-exertion did aggravate his pre-existing heart condition and did contribute to the heart attack he suffered on October 3, 1976. (In this connection, I have accepted the opinions of Dr. Neer and Dr. Thesing over the court-appointed physician). I further find, however, that for a heart attack to be compensable, the unusual stress or strain must be related to a “specifically identifiable event.” Here, the unusual stress and over-exertion occurred over a period of six months and is not related to a “specifically identifiable event.”

The Industrial Relations Commission reversed, finding that claimant had moved some heavy boxes the week immediately preceding his heart attack. Since the commission departed from the essential requirements of law in finding this activity precipitated the heart attack, we reverse.

Workers are entitled to compensation for heart attacks

if there is competent substantial medical testimony, consistent with logic and reason, that the strain and exertion of a specifically identified effort, over and above the routine of the job, combined with a pre-existing non-disabling heart disease to produce death or disability sooner than it would otherwise have occurred ....

Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581, 589 (Fla.1962). In a case very similar to this one the issue was raised whether a claimant was entitled to compensation if “his myocardial infarction was precipitated by a series of unusual, non-routine, work-related, emotionally traumatic events and circumstances compressed within a specific period of time, rather than a single isolated event.” Richards Department Store v. Donin, 365 So.2d 385, 386 (Fla.1978). We held that “for a heart attack occurring during the course of employment to be compensable, it must have been caused by the unusual strain or overexertion of a specifically identifiable effort not routine to the work the employee was accustomed to performing.” Id. at 386.

The reason for requiring a specifically identifiable event was explained in Richard E. Mosca & Co., Inc. v. Mosca, 362 So.2d 1340, 1342 (Fla.1978):

We have had a number of “heart” cases in which we determined what was or what was not an unusual and non-routine strain or exertion within the definition of Victor Wine. These decisions have involved either physical strain or exertion alone or physical strain or exertion in concert with emotional strain, but in no case have we held emotional strain alone to be sufficient. Emotional strain is too elusive a factor to be utilized, independent of any physical activity, in determining whether there is a causal connection between a heart attack or other internal failure of the cardiovascular system and the claimant’s employment.

In finding that claimant’s moving the boxes precipitated his heart attack, the commission erred in two major respects. First, the temporal relationship between the two events does not suggest a causal connection. Contrary to the commission’s statement, there was no evidence that claimant had moved the boxes in the week immediately preceding his heart attack. Instead claimant testified that he had moved the boxes some time during the six months prior to having his heart attack.

Second, there is no medical testimony linking claimant’s heart attack to any physical activity. The medical evidence merely established a link between claimant’s heart attack and his psychological and emotional stress. Dr. Neer testified that the pressure on the job “would have some influence in precipitating the myocardial infarction, but it would not be the sole cause.” (Tr. 193) Since the Judge of Industrial Claims was correct in finding no evidence that the heart attack was caused by a specifically identifiable event, the commission departed from the essential requirements of law in reversing his order.

We therefore reverse the commission’s order and remand this case with instructions that the Judge of Industrial Claims’ order be reinstáted.

It is so ordered.

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