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

text:
    Delbert Lee TIBBS, Petitioner, v. STATE of Florida, Respondent.
    No. 56918.
    Supreme Court of Florida.
    April 9, 1981.
    Rehearing Denied June 3, 1981.

      Louis R. Beller, Miami Beach, and Jerry Paul, Durham, N. C., for petitioner.
    Jim Smith, Atty. Gen., Eula Tuttle Mason and Charles Corees, Jr., Asst. Attys. Gen., Tampa, for respondent.
   PER CURIAM.

This case brings us the responsibility to delineate the occasions for retrial and discharge, respectively, of criminal defendants whose convictions have been reversed by Florida appellate courts. It arises from the decision of the Second District Court of Appeal in State v. Tibbs, 370 So.2d 386 (Fla.2d DCA 1979).

I

In Tibbs v. State, 337 So.2d 788 (Fla.1976), we reversed the' petitioner Delbert Tibbs’ original conviction for rape and for first-degree murder, and we remanded for a new trial. On remand, the trial court granted Tibbs’ motion to dismiss the indictment against him on the ground that retrial would violate the double jeopardy clause of the fifth amendment to the United States Constitution. The trial court based its dismissal on two intervening decisions of the United States Supreme Court — Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). Burks had held that the double jeopardy clause prohibits retrial where an appellate court reverses a conviction on the ground that the evidence is insufficient, and Greene applied that newly-articulated constitutional principle to the states’ judicial systems.

On appeal of the order directing Tibbs’ discharge from prosecution, the Second District Court of Appeal reversed. After analyzing our opinion reversing Tibbs’ convictions, the district court concluded that the principles enunciated in Burks and Greene would not bar Tibbs’ retrial since our reversal was based on the weight, rather than the legal insufficiency, of the evidence. The district court based its decision on a long line of Florida cases ostensibly standing for the proposition that an appellate court can reverse a conviction when the evidence is technically sufficient but its weight so tenuous as to require a new trial in the interests of justice.

One day after the Second District’s action, we decided McArthur v. Nourse, 369 So.2d 578 (Fla.1979). As in the present case, McArthur’s original conviction had been reversed and remanded for a new trial. After analyzing the earlier opinion, we concluded that our reversal had been based on the insufficiency of the evidence, so that Burks and Greene operated to preclude McArthur’s retrial. We expressly left open the double jeopardy implications of appellate reversals based on evidentiary weight, as opposed to sufficiency.

Tibbs then filed a petition for rehearing in the district court alleging that McArthur should be applied in his case to bar further prosecution. The Second District denied rehearing, emphasizing once again its belief that Tibbs’ reversal had been based on the weight of the evidence rather than its legal insufficiency. After this denial, Tibbs brought his case to us for review.

We are asked by Tibbs to rule that our reversal of his original convictions was based on evidentiary insufficiency, not evi-dentiary weight. Beyond simply examining the foundation for our prior opinion as we did in McArthur, we perceive the need to explain the distinction between an appellate reversal based on evidentiary weight and one based on evidentiary insufficiency, and to determine whether that distinction, if one really exists, shall remain viable in Florida.

II

At the outset, we note that the distinction between an appellate reversal based on evidentiary weight and one based on evi-dentiary sufficiency was never of any consequence until Burks. In that case the Supreme Court ruled that the double jeopardy clause of the fifth amendment precluded retrial because an appellate reversal for insufficient evidence is essentially an acquittal. If a trial court holds the evidence insufficient, a judgment of acquittal will be entered and the defendant cannot be retried. If should make no difference, the Court reasoned, that the appellate court rather than the trial court determined the evidence to be insufficient. In either situation, the government has failed to prove its case.

The Court was careful to distinguish reversals for procedural errors in a trial, where double jeopardy does not bar retrial. In such cases, a reversal does not indicate that the government’s case has failed, but simply that the judicial process leading to conviction was defective in some critical way. Retrial is appropriate since “the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished.”

After Burks, the double jeopardy implications of two categories of appellate reversal — reversals for insufficient evidence and reversals for trial error — are relatively clear. The district court, however, distinguished Burks by placing Tibbs’ reversal in a third category: appellate reversals where the evidence is technically sufficient but its weight is so tenuous or insubstantial that a new trial is ordered in the interests of justice. While this third category of appellate reversals is often identified in Florida cases, both this Court in McArthur and the United States Supreme Court in Greene declined to rule on its double jeopardy implications. Without any guidance from either of us, the district court endeavored as best it could to find a place for the weight-sufficiency distinction in Florida’s jurisprudence. It is no reflection on that court that we now take a somewhat different view of the matter.

Ill

The weight and the sufficiency of evidence are, in theory, two distinct concepts most often relevant at the trial court level. Sufficiency is a test of adequacy. Sufficient evidence is “such evidence, in character, weight, or amount, as will legally justify the judicial or official action demanded.” Black’s Law Dictionary 1285 (5th ed. 1979). In the criminal law, a finding that the evidence is legally insufficient means that the prosecution has failed to prove the defendant’s guilt beyond a reasonable doubt. Burks v. United States, 437 U.S. 1, 16 n.10, 98 S.Ct. 2141, 2150 n.10, 57 L.Ed.2d 1 (1978). Weight, at least in theory, is a somewhat more subjective concept. The “weight of the evidence” is the “balance or preponderance of evidence.” Black’s Law Dictionary 1429 (5th ed. 1979). It is a determination of the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other. See In re Estate of Brackett, 109 So.2d 375 (Fla.2d DCA 1959).

As a general proposition, an appellate court should not retry a case or reweigh conflicting evidence submitted to a jury or other trier of fact. Rather, the concern on appeal must be whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment. Legal sufficiency alone, as opposed to evidentiary weight, is the appropriate concern of an appellate tribunal.

IV

The district court in this case reviewed a number of Florida appellate decisions reversing convictions on the alleged basis of evidentiary weight. Although the court’s analysis is plausible, we prefer to view these ambiguous decisions as reversals which were based on sufficiency; that is, as cases in which the state failed to prove the defendant’s guilt beyond a reasonable doubt. See Greene v. Massey, 437 U.S. 19, 25, 98 S.Ct. 2151, 2154, 57 L.Ed.2d 15 (1978).

The first decision cited by the district court was Williams v. State, 58 Fla. 138, 50 So. 749 (1909). In that case, the court stated: “After carefully weighing the evidence, we are irresistibly impelled to the conclusion that there was not sufficient evidence adduced to warrant the [guilty] verdict of the jury ....” 58 Fla. at 151-52, 50 So. at 754. Although this language is imprecise, a careful reading of the opinion seems to indicate that reversal was based on the state’s failure to place the defendants at the scene of the crime or to prove that they fired the fatal shots.

McNeil v. State, 104 Fla. 360, 139 So. 791 (1932), and Woodward v. State, 113 Fla. 301, 151 So. 509 (1933), are similar to Williams. In McNeil this Court reversed because “the evidence of identity of the accused as being the guilty party [was] not satisfactory to the appellate court .... ” 104 Fla. at 361, 139 So. at 792. The state, it appears, had failed to introduce substantial competent evidence to support its assertion that the defendant was present at the scene of the robbery. Since every material element of the offense was not proven, the evidence was insufficient to support a conviction. See Gaetano v. State, 273 So.2d 84 (Fla.4th DCA 1973); Parnell v. State, 218 So.2d 535 (Fla.3d DCA 1969).

In Woodward the Court granted a new trial “in view of the uncertainties appearing in the evidence, and the strong doubt which the evidence raises as to the defendants’ guilt....” 113 Fla. at 302, 151 So. at 509. Again, a close reading of the case leads us to think that Woodward’s guilt was not established beyond and to the exclusion of every reasonable doubt.

The district court also relied upon Skiff v. State, 107 Fla. 90, 144 So. 323 (1932), and Fuller v. State, 92 Fla. 873, 110 So. 528 (1926). In Skiff, the Court reversed a rape conviction because the requisite evidence of the victim’s character was unconvincing, explaining that “[t]he previous chaste character of the alleged victim is a material fact to be proved [by the state].” 107 Fla. at 91, 144 So. at 323. Here again, the reversal seemed to be predicated on the state’s failure to prove every element of the crime. Likewise in Fuller, the Court framed the issue presented by the principal contention on writ of error as “the sufficiency of the evidence to establish the identity of the defendant as the perpetrator of this homicide.” 92 Fla. at 874, 110 So. at 528. See also Ming v. State, 89 Fla. 280, 103 So. 618 (1925).

The district court also relied on Lowe v. State, 154 Fla. 730, 19 So.2d 106 (1944), where the Court granted “a new trial because of the inconclusiveness of the testimony offered to establish the essential facts necessary to constitute the crime.... ” Id. at 737, 19 So.2d at 110. Like the other “weight” cases which the district court considered, it is probable that Lowe in fact dealt with the state’s failure to prove a material fact, which goes to the sufficiency of the evidence.

Our hindsight analysis of the foregoing cases does not mean that all Florida appellate decisions can be reconciled, or that none explicitly relied on evidentiary weight as the sole basis for reversal. Two cases in 1970, Sosa v. Maxwell, 234 So.2d 690 (Fla. 2d DCA 1970), and Smith v. State, 239 So.2d 284 (Fla. 2d DCA 1970), recognized that evidentiary weight could serve as a basis for appellate reversal.

Sosa v. Maxwell was preceded by Sosa v. State, 215 So.2d 736 (Fla.1968), where we had reversed the defendants’ convictions and remanded for a new trial because “evidence was definitely lacking in establishing beyond a reasonable doubt that the defendants committed murder in the first degree .... ” Id. at 737. In Sosa v. Maxwell, the district court denied a writ of prohibition to bar retrial and characterized our earlier reversal as going to the weight, not sufficiency, of the evidence. We later denied certiorari review without opinion. Sosa v. Maxwell, 240 So.2d 640 (Fla.1970). Our denial of certiorari, of course, was not an adjudication on the merits although it made the district court’s Sosa decision the “law of the case.” Our original opinion persuasively suggests, however, that the conviction actually was reversed because the state failed to carry its burden of proof — that is, the reversal was based on the insufficiency of the evidence. The district court, it now seems, simply interpreted our decision wrongly.

In Smith v. State, 239 So.2d 284 (Fla. 2d DCA 1970), the district court reversed a conviction for rape. Although there was some evidence to support each element of the offense, the court concluded that the record as a whole disclosed such a possibility of error that a new trial was required. The court stated: “[Jjudges have historically granted new trials in the interest of justice where the record, though technically sufficient, raises so much doubt that the conviction cannot in conscience be upheld.” Id. at 290 (footnote omitted). On appeal we unanimously reversed. State v. Smith, 249 So.2d 16 (Fla.1971). Describing the district court’s opinion as “novel,” we held:

A twelve-man jury evaluated the evidence, including the credibility of the witnesses, presented in this case and found respondent guilty of the offenses charged. On appeal, the District Court determined that the evidence supported the conviction and the trial was free of error. Once that determination was made, the duty of the District Court was to affirm the conviction.

Id. at 18. We believe this approach is the correct one, and we today reaffirm it as a guiding principle of appellate review.

Y

As the above analysis indicates, the district court’s third category of appellate reversals — where the evidence is technically sufficient but its weight is so tenuous or insubstantial as to require a new trial in the interests of justice — has a questionable historical foundation. The cases relied on by the district court, though confusing and ambiguous in language, can each be seen as involving reversals based on the insufficiency of the evidence. In any event, the formulation in State v. Smith suggests that this third category of appellate reversals, if ever valid in Florida, should now be eliminated from Florida law. Henceforth, no appellate court should reverse a conviction or judgment on the ground that the weight of the evidence is tenuous or insubstantial. Cases now pending on appeal in which a court has characterized the reversal as based on evidentiary weight should be reconsidered in light of our decision today, and under the doctrine of Burks and Greene any retrial of those cases may or may not be barred on the basis of former jeopardy.

Considerations of policy support, if not dictate, this result. Elimination of the third category of reversal accords Florida appellate courts their proper role in examining the sufficiency of the evidence, while leaving questions of weight for resolution only before the trier of fact. Eliminating reversals for evidentiary weight will avoid disparate appellate results, or alternately our having to review appellate reversals based on evidentiary shortcomings to determine whether they were based on sufficiency or on weight. Finally, it will eliminate any temptation appellate tribunals might have to direct a retrial merely by styling reversals as based on “weight” when in fact there is a lack of competent substantial evidence to support the verdict or judgment and the double jeopardy clause should operate to bar retrial.

VI

One further note is in order regarding the scope of our decision today. Many of the “weight” cases cited by the district court included a statement that a new trial was being ordered “in the interest of justice.” By eliminating evidentiary weight as a ground for appellate reversal, we do not mean to imply that an appellate court cannot reverse a judgment or conviction “in the interest of justice.” The latter has long been, and still remains, a viable and independent ground for appellate reversal. Rule 9.140(f) of the Florida Rules of Appellate Procedure (1977) provides the relevant standards:

In the interest of justice, the court may grant any relief to which any party is entitled. In capital cases, the court shall review the evidence to determine if the interest of justice requires a new trial, whether or not insufficiency of the evidence is an issue presented for review.

This rule, or one of its predecessors, has often been used by appellate courts to correct fundamental injustices, unrelated to evidentiary shortcomings, which occurred at trial. Retrial in these circumstances is neither foreclosed, nor compelled, by double jeopardy principles. Each situation is unique.

With respect to the special mention of capital cases in the second sentence of the rule, we take that sentence to mean no more than that an additional review requirement is imposed when insufficiency of the evidence is not specifically raised on appeal—namely, that the reviewing court shall consider sufficiency anyhow and, if warranted, reverse the conviction. The consequence of that action would be to bar retrial under the double jeopardy clause.

VII

The application of these principles to our original Tibbs decision does not offer an easy solution to the issue Tibbs presents, for a careful analysis would seem to indicate, candidly, that the opinion was—like the district court’s decision in Smith—one of those rare instances in which reversal was based on evidentiary weight.

Tibbs’ conviction rested primarily on the uncorroborated testimony of the rape victim, Cynthia Nadeau. Although this testimony alone was legally sufficient to support Tibbs’ conviction under Florida law, Thomas v. State, 167 So.2d 309 (Fla.1964), we reversed his conviction due to a number of “infirmities in the evidence establishing Tibbs as the perpetrator” of the crime. Among these infirmities were several aspects of Nadeau’s testimony which cast serious doubt on her believability. In effect, we reweighed the evidence supporting Tibbs’ conviction and remanded for a new trial. Judged in light of today’s decision, this action was clearly improper. Given the dilemma that error has created, we appear to have several alternatives.

First, we could simply apply the principles enunciated in today’s decision, vacate our previous reversal, and affirm Tibbs’ conviction. This alternative would prejudice Tibbs for our improper reweighing of the evidence, and for that reason it is not terribly attractive.

Second, we could discharge Tibbs on the ground that he is entitled to this relief from our earlier decision, since we there indicated our serious concern “that Tibbs had nothing to do with these crimes.” Tibbs v. State, 337 So.2d 788, 791 (Fla.1976). Only by stretching the point, however, could we possibly use an “insufficiency” analysis to characterize our previous reversal of Tibbs’ convictions.

A more sensible, third alternative, we believe, is to face squarely the double jeopardy implications of a pre-Burks, appellate reversal based on evidentiary weight. We recognize, of course, that this alternative will merely resolve Tibbs’ particular situation, and will have little precedential effect on Florida’s law after today’s decision. Nonetheless, the interests of justice seem to require that we choose between a retroactive and artificial characterization of our earlier decision (an action we expressly declined to undertake in Greene v. Massey, 384 So.2d 24 (Fla.1980)), and a retroactive application of double jeopardy principles to an appellate reversal improperly entered.

Despite the broader focus which Justice Sundberg would have us adopt to resolve our dilemma, the fact remains that we cannot fairly conclude from our original opinion that Tibbs’ convictions were reversed on the grounds of evidentiary insufficiency. If they were not, then generalized double jeopardy concepts are of no value here, for the United States Supreme Court has now made relatively clear that only those appellate reversals tantamount to an acquittal for insufficient evidence prohibit retrial under Burks. United States v. DiFrancesco, - U.S. -, 101 S.Ct. 426, 433-37, 66 L.Ed.2d 328 (U.S.1980). Other appellate reversals, including those where sufficient evidence was adduced but a conviction was nonetheless vacated, apparently do not implicate double jeopardy principles.

For these reasons the decision of the Second District Court of Appeal in State v. Tibbs, 370 So.2d 386 (Fla. 2d DCA 1979), is affirmed.

It is so ordered.

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

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

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

BOYD, J., dissents with an opinion.

SUNDBERG, Chief Justice,

concurring in part and dissenting in part.

I concur in parts I through V of the majority opinion, but to the remainder I must respectfully dissent. Although the majority concedes that it is difficult if not impossible to characterize and thereby categorize the prior decisions of this Court and the district courts of appeal as to whether a reversal was based on “weight” as opposed to “sufficiency,” nevertheless, our prior decision in this cause is dissected to conclude that the reversal was, in fact, based upon the weight and not the sufficiency of the evidence. Two aspects of this trouble me.

First, not only would such an act by the Court in our first decision have been “novel” since there is no legal justification for such a procedure, but it would also have been unlawful. Regardless of how incorrect the conclusion in our first decision may now be perceived, nonetheless, our only authority to reverse the conviction based on the evidence, as an appellate court, was due to its insufficiency. We have consistently recognized that appellate courts may not reweigh evidence. They may only assess its sufficiency. See Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Westerman v. Shell’s City, Inc., 265 So.2d 43 (Fla.1972). So now to characterize our former action as an erroneous reweighing of the evidence seems improvident at best.

Furthermore, I feel the majority in its efforts at drawing fine lines has lost sight of the central import of the double jeopardy clause. The question posed is simply whether Tibbs will suffer double jeopardy if retrial is allowed — yes or no, why or why not. The answer is ineluctably affirmative. The reason requires an examination of double jeopardy principles. Whether the first trial results in an acquittal, conviction or no verdict, a major purpose of protection against double jeopardy is to prevent the imposition of multiple trials upon the defendant. See Price v. Georgia, 398 U.S. 323, 331, 90 S.Ct. 1757, 1762, 26 L.Ed.2d 300 (1970). Because of its superior resources, the state must not be allowed to reprose-cute the defendant for the same offense until it achieves the desired conviction. See United States v. Scott, 437 U.S. 82, 87, 98 S.Ct. 2187, 2191, 57 L.Ed.2d 65 (1978). The double jeopardy clause is aimed at checking prosecutorial discretion and at preventing abuse of criminal prosecution used as a means of government oppression. These purposes are well summarized in the oft-quoted passage from Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957):

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Central to the prohibition against double jeopardy is the barrier forbidding a “second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1 (1978) (footnote omitted). The state is not allowed a “second crack” at convicting a defendant when its first effort fell short of the mark because it somehow failed to present the proper evidence. See Swisher v. Brady, 438 U.S. 204, 216, 98 S.Ct. 2699, 2706, 57 L.Ed.2d 705 (1978). This is the rationale underlying Burks which recognizes that an appellate reversal for lack of evidence is tantamount to an acquittal. This is because such a decision by an appellate court constitutes “a decision to the effect that the government has failed to prove its case.” Burks, 437 U.S. at 15, 98 S.Ct. at 2149.

Burks takes great care to distinguish the double jeopardy implications of appellate reversals due to trial error and those due to evidentiary insufficiency. Reversal and retrial because of trial error does not contravene double jeopardy principles because such a reversal implies nothing about the guilt or innocence of the defendant, but rather “is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e. g., incorrect receipt or rejection of evidence, incorrect instructions, or prose-cutorial misconduct.” Id. at 15, 98 S.Ct. at 2149. The distinction, therefore, is between reversal for a procedural trial error and reversal for a substantive lack of evidence to support the verdict.

The distinction made in Burks parallels that made in United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), decided in the same term as Burks. In Scott, the Supreme Court held that double jeopardy protection could not be invoked by a defendant who had obtained dismissal of two counts of narcotics charges because of prejudice due to preindictment delay by the prosecution. The dismissal had been granted pursuant to a legal defense, not pursuant to a factual defense. The Supreme Court thus developed a definition of acquittal as “ ‘the ruling of the judge, whatever its label, [which] actually represents a resolution [in the defendant’s favor], correct or not, of some or all of the factual elements of the offense charged.’ Martin Linen [United States v. Martin Linen Supply Co., 430 U.S. 564] ... at 571 [97 S.Ct. 1349 at 1354, 51 L.Ed.2d 642].” Scott, 437 U.S. at 97, 98 S.Ct. at 2197. Scott had obtained a dismissal because of a legal and not a factual deficiency in the government’s case and was therefore not entitled to double jeopardy protection.

Our task, then, is to decide whether this Court’s prior reversal of Tibbs’ conviction is more closely related to trial error or evidentiary insufficiency, and whether the reversal is based upon a legal defense or a factual defense. The problem is complicated by the nefarious creation in Florida case law of a theoretical third reason for appellate reversal, viz., lack of evidentiary weight. Though this Court has never specifically recognized this reason for appellate reversals, at least two district court of appeal opinions have attempted to establish this as a basis for reversal. In Sosa v. Maxwell, 234 So.2d 690 (Fla. 2d DCA), cert. denied, 240 So.2d 640 (Fla.1970), cert. denied, 402 U.S. 951, 91 S.Ct. 1635, 29 L.Ed.2d 121 (1971), the district court sought to characterize this Court’s prior reversal of a murder conviction as being based on lack of evidentiary weight. The district court attempted to avoid the growing trend it recognized in other states, which would not allow retrial after reversal based on eviden-tiary insufficiency. Id. at 692. Inherent in Sosa is the notion that the distinction the district court sought to establish between sufficiency and weight of the evidence had some meaning in terms of the applicability of the double jeopardy clause. Although the present majority rightly rejects the district court’s characterization in Sosa, it paradoxically seeks to imply that the distinction used there is possessed of some significant meaning in terms of double jeopardy protection. We explicitly rejected this in State v. Smith, 249 So.2d 16 (Fla.1971), when the same district court again attempted to foist this ground for appellate reversal into Florida’s case law. The majority properly recognizes the weak support for this distinction and relegates it to history as an anomaly. The rejection of this third category of appellate reversal is supported by our recent decision in McArthur v. Nourse, 369 So.2d 578 (Fla.1979), which firmly rejected the state’s proffer of this basis as a means of avoiding double jeopardy application when we had reversed a murder conviction because the circumstantial evidence failed to rebut a hypothesis of innocence.

Both opinions in McArthur and the present majority note that the United States Supreme Court did not directly address the issue with which we are faced when it decided Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), which applied the principles of Burks to the states. Both opinions point to a footnote, 437 U.S. at 26 n.10, 98 S.Ct. at 2155 n.10, where the Supreme Court declined to express a view on our specific problem. This lack of expressed opinion is the only significance I can find underlying the sufficiency-weight distinction which the majority develops, at least when the distinction is made at the appellate level. Yet the Supreme Court’s refusal to decide whether double jeopardy protections are implicated under such a characterization does not necessarily imply that the principles of Burks and Greene are ipso facto inapplicable to our case. The issue is merely undecided, not uncontrolled by these two cases.

Having surmised that the sufficiency-weight distinction is useless in resolving the case before us, I return to the problem of aligning Tibbs’ case on the side of either trial error or evidentiary insufficiency, or alternatively on the side of either a legal defense or a factual defense. There can be no doubt that our original reversal of Tibbs’ conviction was due to this Court’s perception that the state had failed to establish the identity of Tibbs as the perpetrator of the murder and rape. This surely belongs in the category of evidentiary insufficiency and not trial error. Likewise, under the Scott distinction, the basis of the reversal was one going to a factual element of the case, identity, and was not a technical legal problem such as a preindictment delay by the prosecution. We were not concerned that Tibbs did not receive a procedurally fair trial; we were concerned with the insufficiency of a factual showing of identification. Under either the Burks or Scott distinction, Tibbs’ case is therefore one which deserves protection from double jeopardy.

Finally, I turn to the practical problems that the majority’s decision presents. The majority implies that the evidence was legally sufficient to convict Tibbs and that therefore a retrial would not violate the fifth amendment since the state would not be allowed a second attempt at mustering evidence it had failed to produce at the first trial. But we must carry the principle of sufficient evidence through the retrial stage, since it is the basis for avoiding Burks and Greene. We cannot logically allow the state in a second trial to supplement the evidence presented at the first trial, at least not without completely ignoring the themes of the double jeopardy clause here outlined. Since the same evidence must be used, an appellate court would have no choice but once again to reverse a conviction because of our reversal under identical circumstances. This result would follow unless the majority’s opinion were construed to reverse our reversal of Tibbs’ conviction, in which case we should reinstate the original judgment to avoid double jeopardy problems. A second practical problem is created by the passage of seven years from the date of the crime. If the prosecutrix’s identification of the defendant was suspect at the original trial, it is certainly unrealistic to presume on retrial that the passage of so many years will improve her perception.

Both of these problems lead to the conclusion that in spite of the appearance of allowing retrial, the majority has tacitly acquitted Tibbs. Rather than reach this result by tedious circumambulation, I would quash the decision of the District Court of Appeal, Second District, because retrial of the defendant violates the fifth amendment, recognizing that what we did in reversing Tibbs’ conviction was to assess some form of factual deficiency in the evidence proving defendant’s guilt.

ENGLAND, Justice,

concurring in part and dissenting in part.

I concur fully with parts I through V of today’s opinion. I dissent, however, from the Court’s decision to allow a retrial for Tibbs. Rather than recycle Tibbs through the criminal justice system, I would direct his discharge in the interest of justice. Fla.R.App.P. 9.140(f).

BOYD, Justice,

dissenting.

I dissent from the majority opinion allowing re-trial of Delbert Tibbs. It is my view that this result allows the State of Florida to again put petitioner in jeopardy of his life for crimes which the state has already attempted and failed to prove.

When petitioner originally appealed his conviction to this Court, I concurred in the judgment of the Court reversing and remanding for a new trial. Tibbs v. State, 337 So.2d 788, 792 (Fla.1976) (Boyd, J., concurring specially). My concurring opinion reveals my view, which I still hold, that when an appellate court judges the sufficiency of evidence to support a criminal conviction, it does so upon the whole record, and will therefore not always be bound by such general rules of sufficiency as the one pertaining to the uncorroborated testimony of a rape victim, stated in Thomas v. State, 167 So.2d 309 (Fla.1964). While such a rule of evidentiary sufficiency provides that the kind of evidence in question (e. g., uncorroborated identification of rape victim) may, as a matter of law, be sufficient, it does not preclude the appellate court from inquiring, upon the whole record, whether the verdict is supported by competent, substantial evidence. The inquiry is whether a jury of reasonable people could conceivably conclude from the evidence admitted that guilt was proved beyond a reasonable doubt. See, e. g., Griffis v. Hill, 230 So.2d 143 (Fla.1970). On the original Tibbs appeal, I also expressed my reluctance, since the conviction in my view was being reversed because of the insufficiency of the evidence, to concur in the Court’s mandate allowing a new trial.

In McArthur v. State, 351 So.2d 972 (Fla.1977), where it was clearer that the ground of reversal was evidentiary insufficiency, I dissented from that portion of the Court’s decision holding that a new trial was permissible. Id. at 978 (Boyd, J., concurring in part and dissenting in part). When this Court later denied Nadean McArthur’s petition to prohibit her retrial, McArthur v. Nourse, 358 So.2d 132 (Fla.1978) (prohibition denied without opinion), the United States Supreme Court granted certiorari, vacated the order, and remanded for reconsideration in light of Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978) and Burks v. United States, 437 U.S. 1, 91 S.Ct. 2141, 57 L.Ed.2d 1 (1978). When this Court reconsidered the case, it concluded that the Double Jeopardy Clause would not allow another trial. McArthur v. Nourse, 369 So.2d 578 (Fla.1979).

Greene and Burks now make clear that when an appellate court finds that a judgment cannot stand because the state has failed to carry its burden of proof, it is a violation of the Fifth and Fourteenth Amendments to allow the state to have another chance. I disagree, moreover, with the majority opinion’s statement that “the distinction between an appellate reversal based on evidentiary weight and one based on evidentiary sufficiency was never of any consequence until Burks.” The reason that courts, in many of the cases cited by the majority, were so careful to characterize their decisions as reversals for lack of weight rather than legal insufficiency, was because of an understanding that Double Jeopardy disallowed retrial after reversal for insufficiency. See, e. g., Sapir v. United States, 348 U.S. 373, 75 S.Ct. 422, 99 L.Ed. 426 (1955); Smith v. State, 239 So.2d 284 (Fla.2d DCA 1970).

The Double Jeopardy Clause was written to prevent precisely what the Court’s decision today allows — successive attempts by the state to prove its accusations. This Court’s holding that the state failed to carry its burden in petitioner’s trial, and that the conviction therefore could not stand, should now be seen as the equivalent of a judgment of acquittal, and be afforded the same finality as a jury verdict to that effect. Petitioner should be forever discharged from the accusations made against him.

Under my reading of the opinion of the Court, if the same evidence is presented against Tibbs on re-trial as was adduced at. his first trial, he is found guilty, and he challenges the sufficiency of the evidence, the court having jurisdiction of the appeal will be obliged to hold the evidence sufficient to support a conviction. Yet when the previous judgment was before this Court on appeal, it was held that the same evidence was not enough to support the conviction. This flies in the face of principles of res judicata and, I repeat, violates the Double Jeopardy Clause. The Court is saying that we made a mistake when we reversed the original conviction, that we erred in our evaluation of the question of evidentiary sufficiency. I do not agree that we erred; even if we did, however, it is too late now to correct the error. In my view, the only error was in allowing a new trial.

      . McArthur v. State, 351 So.2d 972 (Fla.1977).

      . McArthur v. Nourse, 369 So.2d 578, 581 n.11 (Fla.1979).

      . State v. Tibbs, 370 So.2d 386, 388-89 (Fla.2d DCA 1979).

      . See Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962); Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1904).

      . The Court reasoned that to hold otherwise would create a “purely arbitrary distinction” between a defendant who received the benefit of a correct lower court decision and one who did not. Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1 (1978).

      . Id. at 15, 98 S.Ct. at 2149.

      . McArthur v. Nourse, 369 So.2d 578, 581 n.11 (Fla.1979).

      . Greene v. Massey, 437 U.S. 19, 26 n.10, 98 S.Ct. 2151, 2155 n.10, 57 L.Ed.2d 15 (1978).

      . At the trial level, the weight-sufficiency distinction is apparent in our Rules of Criminal Procedure. We noted in McArthur v. Nourse, 369 So.2d 578 (Fla.1979) that:
      [a] critical distinction has existed at least since 1967, when rules 3.380 (formerly 3.660) and 3.600 of the Florida Rules of Criminal Procedure were adopted. Rule 3.380(a) provides that a motion for judgment of acquittal should be granted if, at the close of the evidence, “the court is of the opinion that the evidence is insufficient to warrant a conviction.” In contrast, rule 3.600(a)(2) provides that a motion for new trial shall be granted if the jury verdict is “contrary to law or the weight of the evidence.”

        Id. at 580 (footnote omitted) (emphases added). Rule 3.600(a)(2) thus enables the trial judge to weigh the evidence and determine the credibility of witnesses so as to act, in effect, as an additional juror. It follows that a finding by the trial judge that the verdict is against the weight of the evidence is not a finding that the evidence is legally insufficient. See Ricketts v. Williams, 242 Ga. 303, 248 S.E.2d 673 (1978), cert. denied, 439 U.S. 1135, 99 S.Ct. 1059, 59 L.Ed.2d 97 (1979).

      . See, e. g., Chaudoin v. State, 362 So.2d 398 (Fla.2d DCA 1978) (weight and credibility solely within province of jury; appellate court’s only function to determine sufficiency as a matter of law); Abbott v. State, 334 So.2d 642 (Fla.3d DCA 1976), cert. denied, 431 U.S. 968, 97 S.Ct. 2926, 53 L.Ed.2d 1064 (1977) (conflicts in evidence and questions about witness’ credibility will not justify reversal when evidence is legally sufficient to support conviction); Wetherington v. State, 263 So.2d 294 (Fla.3d DCA 1972).

      . Spinkellink v. State, 313 So.2d 666 (Fla.1975); Wooten v. State, 361 So.2d 167 (Fla.3d DCA 1978); Dawson v. State, 338 So.2d 242 (Fla.3d DCA 1976).

      . One problem, of course, is whether an appellate court actually “reweighs” the evidence in reviewing a trial court’s grant or denial of a motion for new trial based on the ground that the verdict is contrary to the weight of the evidence. See note 9 supra. Although Florida case law offers no clear answer, see Mancini v.

        State, 273 So.2d 371 (Fla. 1973), this case does not require us to address this problem, and we leave its resolution for another day.

      . Greene v. Massey, 384 So.2d 24 (Fla.1980).

      . See, e. g., Wright v. State, 348 So.2d 26 (Fla. 1st DCA 1977); In re Tierney, 328 So.2d 40 (Fla. 4th DCA 1976); Kohn v. State, 289 So.2d 48 (Fla. 3d DCA 1974); Cleveland v. State, 287 So.2d 347 (Fla. 3d DCA 1973). Other cases have granted new trials “in the interests of justice” without explicitly citing the rule. See, e. g., Dukes v. State, 356 So.2d 873 (Fla. 4th DCA 1978); Ferber v. State, 353 So.2d 1256 (Fla. 2d DCA 1978); McClain v. State, 353 So.2d 1215 (Fla. 3d DCA 1977).

      . State v. Smith, 249 So.2d 16, 17 (Fla.1971).

      . Tibbs v. State, 337 So.2d 788 (Fla.1976).

      . Some of the basis for the creation of this third type of reversal, evidentiary weight, is exemplified in Smith v. State, 239 So.2d 284 (Fla. 2d DCA 1970), the case which we quashed in 249 So.2d 16 (Fla.1971). The district court pointed out that though Florida lacks a corroboration requirement for rape convictions, the results in Florida appellate courts do not differ from those states which do have such a requirement. Id. at 286. Since Florida courts could not create a corroboration requirement as Georgia courts had in Davis v. State, 120 Ga. 433, 48 S.E. 180 (1904), because of such precedent as Doyle v. State, 39 Fla. 155, 22 So. 272 (1897), they instead sought to create a separate category of appellate review based on eviden-tiary weight, implementing a de facto corroboration requirement. The Florida Legislature sought to stem this tide of judicial lawmaking by explicitly rejecting a corroboration requirement for a sexual battery conviction. § 794.-022(1), Fla.Stat. (1979). A majority of states has rejected the corroboration requirement which had no basis in common law, though the district court in Smith assumed otherwise. See 15 Duq.L.Rev. 305, 313 (1977); 7 J. Wigmore, Evidence § 2061, at 451 (Chadbourn rev. 1978).

      . Tibbs’ conviction did not rest entirely upon circumstantial evidence, so the standard requiring evidence which is inconsistent with any reasonable hypothesis of innocence set out in Davis v. State, 90 So.2d 629 (Fla.1956), and with which McArthur v. State, 351 So.2d 972 (Fla.1977), was concerned, is not here applicable.

      . This implication is inherent in the majority’s position, since the only other stance would hold the evidence insufficient, and Burks and Greene would prevent retrial.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Judy Lynn REYNOLDS and Susan K. Welty, Appellees.
    No. 57987.
    Supreme Court of Florida.
    April 30, 1981.
    Jim Smith, Atty. Gen., and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, West Palm Beach, and Edward Kay, Fort Lauderdale, for appellees.
   PER CURIAM.

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

It is so ordered.

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


text:
    STATE of Florida, Appellant, v. Robert R. LaMAIRE, Appellee.
    No. 58185.
    Supreme Court of Florida.
    April 30, 1981.
    Jim Smith, Atty. Gen., and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    E. Ross Zimmerman, Fort Lauderdale, for appellee.
   PER CURIAM.

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

It is so ordered.

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


author: ENGLAND, Justice.

text:
    THE FLORIDA BAR, Petitioner, v. Gerald KAISER, Respondent.
    No. 58189.
    Supreme Court of Florida.
    April 30, 1981.

      Leonard H. Gilbert, President, The Florida Bar, Tampa, John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, Ronald R. Richmond, Chairman, Standing Committee on Unauthorized Practice of Law, New Port Richey, and Bill Hoppe, Bar Counsel, Miami, for petitioner.
    Jerome Bill Ullman, Miami, for respondent.
   ENGLAND, Justice.

Kaiser has been charged by The Florida Bar with the unauthorized practice of law. A referee appointed by the Court has received evidence and heard testimony on the bar’s complaint and has concluded that Kaiser is guilty of the misconduct with which he is charged. Kaiser asks us to review the referee’s findings and his recommended punishment, and to vacate both.

Gerald Kaiser is a New York attorney who maintains an interstate law firm in several states, including an office in Miami, Florida. His practice is limited to immigration and naturalization matters. He is not a member of The Florida Bar, although a resident partner of the firm in the Miami office is a Florida attorney. Neither The Florida Bar nor the referee have suggested that Kaiser can or should be restricted in any way from practicing naturalization or immigration law in this state even though he is not a member of The Florida Bar, see Sperry v. The Florida Bar, 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963), and nothing in this opinion should be construed as suggesting otherwise.

The unauthorized law practice with which Kaiser is charged is the advertisement in the Miami telephone books over the past two years, and on television and in newspapers, of his availability as an attorney — the implication being that he is authorized to practice law in Florida. Although presented with evidence that the placement of listings in the telephone books was the responsibility of the telephone company and not Kaiser’s, the referee determined, nonetheless, that Kaiser was responsible for advertisements suggesting he is a Florida attorney, with no distinguishing limitations as to his membership in the New York bar or his limited area of practice. Accordingly, the referee found Kaiser guilty of the unauthorized practice of law, directed that he be enjoined from any form of advertising by newspaper, television or otherwise which would tend to mislead the public into believing that he was a member of The Florida Bar or authorized to practice in the state, and imposed on Kaiser the costs of the proceeding and a fine of $2,500.

Our review of the record leads us to conclude that the referee’s findings of fact with respect to the unauthorized practice of law were justified. The record supports the referee’s conclusion that Kaiser knew that his advertisements created the impression that he was authorized to practice in Florida on his own, and did not meet the requirements of our most recent pronouncement with respect to the interstate practice of law. See The Florida Bar v. Savitt, 363 So.2d 559 (Fla.1978). Kaiser’s statements to the referee that his advertisements would be changed and that his listings would be deleted were a commendable effort to undo the wrong which had been done, but they do not alter the fact that Kaiser had knowingly engaged in conduct expressly disapproved by this Court.

The referee’s finding having been accepted, we necessarily agree with his recommendation that Kaiser be enjoined from any form of advertising by newspaper, television or otherwise that would tend to mislead the public into believing he was a member of The Florida Bar or authorized to practice law in this state. Our agreement with the referee’s findings also compels our affirmance of the assessment of costs of this proceeding against Kaiser, in the amount of $894.62.

We are constrained to disagree with the $2,500 fine, however. Kaiser has agreed to take all steps necessary to comply with the injunction and to eliminate all misleading advertising. There is no reason to impose a financial penalty. Should this injunction be ignored or disregarded in any respect, however, financial or other penalties might then be appropriate.

Accordingly, Kaiser is hereby enjoined from any advertising by newspaper, television or otherwise that would tend to mislead the public into believing he is a member of The Florida Bar or authorized to practice law in this state, and costs in the amount of $894.62 are assessed against him.

It is so ordered.

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

      The Florida Bar has characterized Kaiser as knowingly skating on thin ice; that is, to the very edge of legality. That characterization is borne out by the record. Mr. Kaiser would be well-advised to skate on thicker ice by moving his advertisements further from the defined border between permitted and prohibited conduct.


text:
    STATE of Florida, Appellant, v. William Daniel COWGILL, William Eugene Cox, Terry Von Smith, Vincent Doyle, Danny Robinson, Jerry Stubblefield and Ronald Farace, Appellees.
    No. 58199.
    Supreme Court of Florida.
    April 30, 1981.
    Jim Smith, Atty. Gen., and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Philip Carlton, Jr. of the Law Offices of Philip Carlton, Jr., Miami, for appellees.
   PER CURIAM.

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

It is so ordered.

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


text:
    STATE of Florida, Appellant, v. Irving David CUTLER, Appellee.
    No. 58219.
    Supreme Court of Florida.
    April 30, 1981.
    Jim Smith, Atty. Gen., and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    D. Robert Silber of Kay, Roderman & Silber, Fort Lauderdale, for appellee.
   PER CURIAM.

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

It is so ordered.

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


text:
    STATE of Florida, Appellant, v. Robert PIERPONT, Appellee.
    No. 58289.
    Supreme Court of Florida.
    April 30, 1981.
    Jim Smith, Atty. Gen., and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    James R. Holmes of Zamer & Holmes, Oakland Park, for appellee.
   PER CURIAM.

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

It is so ordered.

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


text:
    STATE of Florida, Appellant, v. Gary Charles KNOWLES and Ray Daniel Darvill, Appellees.
    No. 58343.
    Supreme Court of Florida.
    April 30, 1981.
    Jim Smith, Atty. Gen., and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Joel S. Fass of Colodny & Fass, North Miami, for appellees.
   PER CURIAM.

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

It is so ordered.

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


text:
    STATE of Florida, Appellant, v. Gregory Ross MacKAY, Appellee.
    No. 58430.
    Supreme Court of Florida.
    April 30, 1981.
    Jim Smith, Atty. Gen., and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Peter F. K. Baraban, Miami, for appellee.
   PER CURIAM.

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

It is so ordered.

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


author: OVERTON, Justice.

text:
    Larry Alan LaRUE, Appellant, v. STATE of Florida, Appellee.
    No. 58529.
    Supreme Court of Florida.
    April 30, 1981.
    Philip J. Padovano, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   OVERTON, Justice.

This is a direct appeal from the trial court’s order expressly holding constitutional the last sentence of section 960.25, Florida Statutes (1977), which provides: “The principal amount of any bail bond given as prescribed by law shall be increased by an additional 5 percent surcharge which is established hereby.” Upon bond forfeiture, the state deposits the additional five percent surcharge in the Crimes Compensation Trust Fund, a fund created to compensate victims of crimes. See § 960.21, Fla.Stat. (1977). We have jurisdiction under article V, section 3(b)(1), Florida Constitution (1972).

We previously upheld the first sentence of section 960.25 as it pertained to criminal fines and declared invalid that portion pertaining to civil fines. State v. Champe, 373 So.2d 874 (Fla.1979). We now hold the section’s last sentence to be unconstitutional because it is unrelated to bail’s purpose of assuring the accused’s attendance at trial, does not benefit the operation of the bail bond system, and results in an unjustified expense to innocent defendants. Our decision does not affect our previous holding in State v. Champe.

The present facts are undisputed. The state charged appellant, Larry Alan LaRue, with conspiracy to possess, possession of, and the unlawful importation of more than one hundred pounds of marijuana in violation of Florida’s Comprehensive Drug Abuse and Control Act. After the state arrested LaRue, the trial court set bail at $500,000, but later reduced the amount to $250,000. Pursuant to section 960.25, a surcharge increased the bail amount by five percent or $12,500, making the total amount $262,500. A bail bondsman posted bail for LaRue charging him $26,250, a nonrefundable ten percent premium. Of this premium, $625 was directly attributable to the section 960.25 surcharge. LaRue thereafter presented himself at all appropriate proceedings and, consequently, the Crimes Compensation Trust Fund received no money and in no manner benefited from the five percent surcharge. The bail bondsman, however, did benefit in that he retained the extra $625 premium.

LaRue attacked the constitutional validity of the surcharge in both his motion to reduce bail prior to arraignment and by his motion for return of bail surcharge subsequent to sentencing. The trial court, in denying both motions, specifically held section 960.25 and its bail surcharge to be constitutional. LaRue eventually pleaded nolo contendere to the charges and was sentenced to a three-year probationary period.

The question which we must decide is whether section 960.25’s bail surcharge is violative of the constitutionally guaranteed right to reasonable bail. Under article I, section 14, Florida Constitution, all criminal defendants are entitled to release on reasonable bail, unless charged with a capital offense or one punishable by life imprisonment; and, under United States Constitution, amendment VIII, bail must not be excessive. In construing the latter provision, the United States Supreme Court has expressly held that the sole purpose of bail is to ensure the attendance of the accused to answer all charges against him. Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951).

The United States Supreme Court has also addressed the issue of an added cost or charge to bail for the administration of the bail bonding process. Schilb v. Kuebel, 404 U.S. 357, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971). In Schilb, the Illinois state legislature had enacted and implemented a state-operated bail bonding system to combat the evils of private sector bail bonding. Id. at 360, 92 S.Ct. at 482. See Deposit of Bail Security, Ill.Rev.Stat., ch. 38, § 110 (1963). Under the system, an accused could post with the state ten percent of the set bail amount as a method of bail satisfaction. When all bail conditions were performed, the state would return ninety percent of the accused’s payment, ten percent (one percent of the set bail amount) being retained to fund the bail bonding system’s cost. In considering the constitutional validity of the one percent charge, the Supreme Court determined that no fundamental right was at issue and that the standard to be applied was: “Is the distinction drawn by the [bail] statutes invidious and without rational basis?” Id. at 365, 92 S.Ct. at 484. The Court went on to hold that the Illinois bail bonding process was the product of much-needed reform, the legislation’s purpose was to lower the cost of bail bonds generally to all accused persons, and that the one percent charge used to fund state-operated bonding was indeed grounded in rationality. It was noted that the Illinois bail bondsman virtually and abruptly disappeared after the system’s implementation. Id. at 360, 92 S.Ct. at 482. See Boyle, Bail Under the Judicial Article, 17 DePaul L.Rev. 267 (1968).

Unlike the charge upheld in Schilb, the Florida Legislature imposed the instant surcharge not to fund the administration of the bail bonding process, but rather to fund the Crimes Compensation Commission. It should be noted that under the legislative scheme, the commission derives no revenue from the surcharge unless a bond is in fact forfeited, but the bail bondsmen benefit in every instance through the resulting increased premium. We also emphasize that all defendants, guilty and innocent, must pay the surcharge, the ultimate effect of which imposes a pretrial cost upon every defendant rather than a post-trial penalty upon those actually found guilty. Pretrial financial burdens imposed on criminal defendants for purposes other than securing the accused’s attendance at trial and totally unrelated to the bail bonding system cannot constitutionally be allowed. Any pretrial charge must directly relate to the trial participants’ use of the court system.

Other jurisdictions have similarly rejected attempts to use bail bond surcharges to fund unrelated programs. The California Supreme Court in McDermott v. Superior Court, 6 Cal.3d 693, 100 Cal.Rptr. 297, 493 P.2d 1161 (1972), considered a constitutional challenge to a statute which imposed a twenty-five percent bail bond assessment used to finance certain police training programs. The California court held that the additional sum levied as a condition precedent to the accused’s release was in violation of both the federal and California constitutions. The Supreme Court of New Hampshire likewise determined that a proposed statute imposing a ten percent bail bond assessment to finance police training was unconstitutional. Opinion of the Justices, 117 N.H. 382, 373 A.2d 640 (1977). The New Hampshire court rejected the additional charge, finding that it violated the excessive bail proscription of the New Hampshire constitution and the eighth amendment to the United States Constitution. The court stated:

The purpose of the imposition of bail is to assure the defendant’s appearance in court, and therefore the amount of bail may be set no higher than that figure reasonably required to accomplish this result. ...
Once bail is set at an amount determined to be reasonable the addition of the assessment contemplated [by the proposed law] would render the total amount excessive ....

Id. at 385, 373 A.2d at 642.

We conclude that the purpose of section 960.25’s bail bond surcharge is not related to securing an accused’s attendance at trial and does not in any manner benefit the bail bonding system. This lack of any rational connection renders the instant surcharge unconstitutional.

That portion of section 960.25, Florida Statutes (1977), which imposes a five percent bail bond surcharge is hereby declared unconstitutional as violative of article I, section 14, Florida Constitution, and of United States Constitution, amendment VIII. This decision will apply prospectively-

It is so ordered.

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

ALDERMAN, J., dissents.


text:
    STATE of Florida, Appellant, v. Juan Jose RODRIGUEZ, a/k/a Jose Juan Rodriguez, Appellee.
    No. 58602.
    Supreme Court of Florida.
    April 30, 1981.
    Jim Smith, Atty. Gen., and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Martin Moncarz, Fort Lauderdale, for ap-pellee.
   PER CURIAM.

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

It is so ordered.

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


text:
    STATE of Florida, Appellant, v. Bartholomen CONSTANTINO and Santo John Monfre, Appellees.
    No. 58816.
    Supreme Court of Florida.
    April 30, 1981.
    Jim Smith, Atty. Gen., and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    David R. Damore of Aiken & Damore, Fort Lauderdale, for appellees.
   PER CURIAM.

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

It is so ordered.

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


text:
    STATE of Florida, Appellant, v. Lane CHANDLER, Appellee.
    No. 59019.
    Supreme Court of Florida.
    April 30, 1981.
    Jim Smith, Atty. Gen., and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Arthur W. Tifford, Miami, for appellee.
   PER CURIAM.

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

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Louis GLICK, Respondent.
    No. 59868.
    Supreme Court of Florida.
    April 30, 1981.
    John A. Weiss, Branch Staff Counsel and Anita F. Dahlquist, Asst. Staff Counsel, Tallahassee, and A. G. Condon, Jr., Bar Counsel, Pensacola, for complainant.
    Louis Glick, in pro. per.
   PER CURIAM.

This disciplinary proceeding is before us on complaint of The Florida Bar, report of the referee, and petition of The Florida Bar to review the referee’s disciplinary recommendation.

The referee found that Ann Bethune retained respondent Louis Glick to probate such estates that might be necessary to establish Ann as record titleholder to certain real property. Ann’s grandmother and record titleholder of the property, Marie Sheets, died testate devising the property to her son, Ellis, and his wife, Georgianna. Marie provided that if Ellis and Georgianna predeceased her, the property would pass to Ann. Marie survived Georgianna but predeceased Ellis by several days. Ellis died intestate leaving his daughter Ann as his sole lawful heir. In attempting to establish Ann as record titleholder, Glick probated Marie’s estate as though Marie was predeceased by both Georgianna and Ellis. He did not probate Ellis’s estate.

Ann contracted to sell the property to a third party. This third party sought financing from Mutual Federal Savings and Loan Association. On its attorney’s advice, the lending institution disapproved Ann’s title. The examining attorney was of the opinion, and so informed Glick, that when Marie died the property passed to Ellis, requiring probate of Ellis’s estate in order to pass title to Ann. Glick refused to acknowledge any mistake, to take any corrective action, or to return to Ann any of the fee she paid to him. Ann then hired another attorney to file a quiet title action for her.

The referee recommends that Glick be found guilty of violating Code of Professional Responsibility Rules DR 6-101(A)(l) and (3) and DR 7-101(A)(2) and (3), that he be suspended from The Florida Bar until he demonstrates his competency' to practice law and demonstrates his understanding of the Code of Professional Responsibility by successfully completing The Florida Bar examination, and that he be ordered to make restitution to Ann of the costs and fees she paid to the second attorney.

We hereby approve and adopt the referee’s findings of fact and approve the recommendation of guilty.

The Bar disagrees with the referee’s recommended discipline. It argues, and we agree, that in light of the similarity between Glick’s present misconduct and the misconduct which caused his earlier discipline, Glick should be suspended for three months and one day, and thereafter until he proves his rehabilitation. The Bar also requests that costs and restitution be ordered to be paid by a date certain since Glick has not met these financial responsibilities of his earlier discipline. Glick did not file a response.

The discipline imposed on a wayward attorney must be fair to both the public and to the attorney. The Florida Bar v. Papy, 358 So.2d 4 (Fla.1978). In meeting this responsibility, we must deal more severely with an attorney who exhibits cumulative misconduct. The Florida Bar v. Vernell, 374 So.2d 473 (Fla.1979). Though we believe the indefinite suspension recommended by the referee is inappropriate, we agree with The Florida Bar that Glick must be firmly disciplined in light of his cumulative misconduct.

Accordingly, Glick is suspended from The Florida Bar for three months and one day, and thereafter until he shows his rehabilitation and successfully completes The Florida Bar examination, until he pays the costs of these proceedings in the amount of $337.80, and until he complies with the provisions ordered in his earlier disciplinary proceeding.

It is so ordered.

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

BOYD, J., would administer a public reprimand.

ADKINS, J., dissents.

      . DR 6-101(A)(l) and (3) provides:
      (A) A lawyer shall not:
      (1)Handle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it; however, he may accept such employment if in good faith he expects to become qualified through study and investigation, as long as such preparation would not result in unreasonable delay or expense to his client.

      (3) Neglect a legal matter entrusted to him. DR 7-101(A)(2) and (3) provides:
      (A) A lawyer shall not intentionally:

      (2) Fail to carry out a contract of employment entered into with a client for professional services, but he may withdraw as permitted under DR 2-110, DR 5-102, and DR 5-105.
      (3) Prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102(6).

      . The Florida Bar v. Glick, 383 So.2d 642 (Fla.1980).


author: LARRY G. SMITH, Judge. PER CURIAM.

text:
    DADE COUNTY SCHOOL BOARD and Gallagher Bassett Insurance Service, Appellants, v. Juanita GIBAVITCH, Appellee.
    No. UU-24.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1980.
    Rehearing Denied May 5, 1981.
    Steven Kronenberg, of Pyszka, Kessler & Adams, Miami, for appellants.
    George Nachwalter, Miami, for appellee.
   LARRY G. SMITH, Judge.

The employer/carrier appeal a worker’s compensation order awarding claimant 75% permanent partial disability based upon loss of wage earning capacity. Appellants rely for reversal upon the contentions (1) that the award of compensation based upon loss of wage earning capacity was in error because claimant failed to conduct a good faith work search and (2) that the award was further erroneous because the record reveals no anatomical disability rating. We affirm.

We agree with the employer/carrier’s position, as a general rule, that a good faith work search is an essential prerequisite to an award based on loss of wage earning capacity, unless the claimant’s physical or mental condition is such that the failure to seek employment in the open market is reasonable and justified under the circumstances. Chicken-‘N’-Things v. Murray, 329 So.2d 302 (Fla.1976); Sizemore v. Canaveral Port Authority, 332 So.2d 23 (Fla.1976). Further, this court has reiterated the well-settled rule that no award for loss of wage earning capacity can be made in the absence of a finding that the claimant sustained permanent anatomical impairment. Agrico Chemical Company v. Laws, 384 So.2d 722 (Fla. 1st DCA 1980). Notwithstanding these settled rules, we conclude that their application is inappropriate because of the posture of this case as it now appears before us.

The present order under review was entered by the Deputy Commissioner upon remand as directed by order of the Industrial Relations Commission after its review as the prescribed appellate body prior to the recent legislative assignment of these cases to this court. Section 440.271, Florida Statutes (1979). The Industrial Relations Commission reversed the prior order, which awarded permanent total disability, upon the sole ground that permanent total disability benefits cannot be awarded when only permanent partial disability benefits have been claimed, citing United States Steel Corporation v. Green, 353 So.2d 86 (Fla.1977). We think it is obvious, upon reading of the prior order reviewed by the Industrial Relations Commission, that the award of permanent total disability was based upon loss of wage earning capacity. Paragraph six of that order stated, in part:

6. I further find, based upon all testimony and evidence presented, that the claimant has worked most of her adult life and is a well motivated individual, however, due to her physical limitations and restrictions, has attempted to rehabilitate herself but to no avail. I further find that the likelihood of the claimant obtaining gainful substantial employment on the open labor market, in view of her age, education, past work history, the fact that she has no transferrable skills, and in view of her present physical condition, limitations and restrictions, is not realistic. I therefore find, based upon the foregoing, that the claimant is permanently and totally disabled from an occupational standpoint, (emphasis supplied)

The order here for review, which reduced the disability to 75% permanent partial disability, is also based upon wage earning capacity loss. We find that the prior order contains much the same findings with respect to the claimant’s ability to obtain employment as does the present order. However, we note that the points on appeal, as stated by the Industrial Relations Commission in its opinion on review, do not include any contentions with respect to claimant’s lack of a job search, or absence of the requisite permanent anatomical disability. We hold that these issues could have, and should have been presented in the prior appeal. See Brevard Board of County Commission v. Caldwell, 379 So.2d 1031 (Fla. 1st DCA 1980). Furthermore, we note that the employer/carrier did make an issue, in the prior appeal, of the sufficiency of findings of fact contained in the prior order. On this point, the Industrial Relations Commission affirmed.

We have not overlooked the language of the Industrial Relations Commission’s opinion in which it directed, upon remand, that “the judge may consider the award of permanent partial disability benefits, if warranted on the record.” While we do not regard this statement as a ruling on the merits of the claim for disability benefits, it clearly does not preclude such an award. Had there been no basis in the record for a finding of permanent anatomical disability, it would have been incumbent upon the employer/carrier to raise this issue on the first appeal, rather than to await the further order of the Deputy Commissioner awarding permanent partial disability.

In summary, we think it is implicit in the language of the prior order, as well as the present one, that the finding of a wage earning capacity loss is predicated upon permanent anatomical disability, and that the severity of the claimant’s injuries and resulting disabilities are such that a job search is excusable.

In view of our disposition of this appeal, it was not error for the Deputy Commissioner to reserve jurisdiction for determination of the amount of attorney’s fees to be awarded to claimant’s attorney.

AFFIRMED.

MILLS, C. J., and BOOTH, J., concur.

ON PETITION FOR REHEARING

PER CURIAM.

Appellants have attached their brief to the Industrial Relations Commission (IRC) to their petition for rehearing in support of their contention that lack of an anatomical disability rating and lack of work search were raised and argued before the Commission and that therefore this court erred in basing its opinion on their failure to raise these issues in their prior appeal to the IRC.

Our examination of appellants’ brief filed with the IRC shows that the position taken by the E/C before the Judge of Industrial Claims included a contention that the claimant’s disability “was limited to anatomical impairment,” although there was also a denial that any permanent partial disability was due or owing. We find that under “Statement of The Case” the brief does contain a reference to the fact that Dr. Rapperport, who felt the claimant had sustained a permanent disability, “assigned no disability rating to her.” We also note other references in the argument portion of the brief that “claimant must prove the extent of her disability before a compensation award is warranted ...,” and that Dr. Rapperport made no mention of “the extent of the claimant’s disability.” It appears to us, however, that these references were merely incidental to appellants’ basic argument that the evidence did not support a permanent total award, and we find no argument made concerning the absence of a percentage of anatomical impairment, nor any specific reference to the fact that such a finding was not included in the judge’s order. Although appellants’ fifth point in their IRC brief presented the issue of the judge’s failure to make sufficient findings of fact as required by law, pointing out the absence of specific findings on the “eight criteria” under Walker v. Electronic Products and Engineering Company, 248 So.2d 161 (Fla.1971), the IRC gave full consideration to this point and ruled that reversible error had not been demonstrated. Consequently, there was no occasion for the Judge of Industrial Claims to readdress this issue on remand, nor should this court be required to entertain further review on this point. Accordingly, we adhere to our original decision that reversible error has not been presented on this point.

Next we consider appellants’ contention that the lack of a work search was raised in the prior appeal. Although the points on appeal do not include any contentions with respect to claimant’s lack of a work search, the brief reveals that an argument on this issue was made to the IRC. Therefore we recede from that portion of our prior opinion which indicates that this issue was not presented in the prior appeal as it should have been. Nevertheless, a review of the record anew still mandates our affirmance.

The Deputy Commissioner found “that the claimant has attempted unsuccessfully to rehabilitate herself, but has become progressively more restricted and her condition has worsened, so that while the claimant might be able to do some very light or minimal type work, it would be of the most menial nature, in the opinion of the undersigned Deputy Commissioner.” We agree that this finding is supported by competent substantial evidence in the record and constitutes an excusal from a work search. Chicken-‘N’-Things v. Murray, supra; Sizemore v. Canaveral Port Authority, supra.

Accordingly, we adhere to the affirmance in this case and the petition for rehearing is DENIED.

MILLS, C. J., and BOOTH and LARRY G. SMITH, JJ., concur.


author: PER CURIAM. PER CURIAM.

text:
    Clarence DEES, Appellant, v. STATE of Florida, Appellee.
    No. 80-774.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 1981.
    On Rehearing May 6, 1981.
    Jack 0. Johnson, Public Defender, Bar-tow, and Samuel Robert Mandelbaum, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed.

SCHEB, C. J., and HOBSON and BOARDMAN, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

On February 27, 1980, Clarence Dees returned to the Hillsborough County detention facility after a day’s work release. Before he was returned to his cell, one of the officers frisked him and found seventeen grams of marijuana hidden in his sock.

The state charged Dees with misdemean- or possession of marijuana, a violation of section 893.13, Florida Statutes (1979). After Dees pled guilty, the court adjudicated him guilty and sentenced him to sixty days in jail. The following day the state filed an information charging Dees with unlawfully introducing or possessing the same marijuana on the grounds of a county detention facility, a felony under section 951.22, Florida Statutes (1979).

Dees moved to dismiss the felony charge on the ground that prosecution for this second charge would constitute double jeopardy under the United States and Florida Constitutions. The trial court denied the motion, and Dees entered a plea of nolo contendere, reserving the right to appeal the denial of his motion.

We affirmed Dees’ conviction on the felony charge without opinion on the authority of London v. State, 347 So.2d 639 (Fla. 4th DCA 1977). Dees v. State, No. 80-774 (Fla. 2d DCA Feb. 4, 1981). On reviewing Dees' motion for rehearing, we now think London may be incorrect and hold that Dees’ subsequent prosecution for possessing or introducing contraband into a county detention facility constituted double jeopardy.

• In Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), Brown was charged with “joyriding” in a motor vehicle. He pled guilty to this misdemeanor charge and was sentenced. Subsequently, a grand jury indicted Brown for theft of the same car for his act of driving it nine days after he had taken it for the joyride. He then pled guilty on the understanding that the trial court would consider his claim of double jeopardy on a motion to withdraw the plea. The court rejected Brown’s motion, and he appealed. The Ohio Court of Appeals held that joyriding was a lesser-included offense of felony auto theft but affirmed Brown’s two convictions on the ground that they resulted from two distinct illegal acts occurring nine days apart.

In reversing Brown’s conviction for auto theft, the United States Supreme Court held that the double jeopardy clause of the fifth amendment to the United States Constitution was a bar to prosecution for the theft offense following the prosecution for the lesser-included offense of joyriding. The court stated that, “Whatever the sequence may be, the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense.” Id. at 169, 97 S.Ct. at 2227, 53 L.Ed.2d at 196.

The case before us presents a stronger situation for applying double jeopardy principles than did Brown. Here, Dees’ possession of the marijuana for which he was first convicted was contemporaneous with his introduction or possession of the same marijuana in the detention facility. In Brown, on the other hand, the two prosecutions were based on the defendant’s separate acts committed nine days apart.

In London, on which we earlier relied, the Fourth District Court of Appeal concluded that London’s prior conviction for possession of marijuana under section 893.13 did not bar his subsequent prosecution under section 944.47, Florida Statutes (1975), making the introduction of cannabis into a penal institution a felony. The court rejected London’s contention that the former crime was a lesser-included offense of the latter and, therefore, that double jeopardy principles barred the second prosecution. Under the facts of London, possession may not have been a lesser-included offense of introduction. Here, however, Dees’ possession of marijuana was a category four lesser-included offense of his simultaneous introduction or possession of the same marijuana into the county detention facility. See Brown v. State, 206 So.2d 377 (Fla. 1968).

Thus, we conclude that the bar against double jeopardy prevented Dees’ prosecution for the greater crime of introducing or possessing marijuana in a county detention facility after his conviction of the lesser offense of possession of the same marijuana. Accordingly, we vacate Dees’ conviction and sentence on the felony charge.

The time for applying for rehearing is limited to ten days.

SCHEB, C. J., and HOBSON and BOARDMAN, JJ., concur.


author: ORFINGER, Judge.

text:
    Warren Bruce MAPLES, Appellant, v. STATE of Florida, Appellee.
    No. 80-282.
    District Court of Appeal of Florida, Fifth District.
    April 1, 1981.

      James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

Appellant’s contention that the verdict of the jury finding him guilty of grand theft was contrary to the weight of the evidence is without merit and the judgment of conviction is affirmed.

He complains also of error in the imposition of certain conditions of probation in his split sentence. One condition required that he make restitution to the victim of $20,799.00, and appellant correctly contends that this condition could not be imposed without first giving him an opportunity to be heard. Although restitution may properly be made a condition of probation, a defendant is entitled to notice and a hearing as part of the process by which the amount of restitution is determined by the court. Fresneda v. State, 347 So.2d 1021 (Fla.1977). The record reflects defendant requested an opportunity to be heard on the amount of damage to the victim, contending that the amount mentioned was inflated, but this request was denied. Cf. Barlow v. State, 388 So.2d 349 (Fla. 5th DCA 1980) (where no objection was raised in the trial court).

Appellant also correctly contends that the condition of probation which authorizes any probation officer and any law enforcement officer to conduct a search of appellant, his premises and vehicles at any time, is invalid with respect to search by any law enforcement officer, although it is correct insofar as it authorizes searches by appellant’s probation supervisor. Grubbs v. State, 373 So.2d 905 (Fla.1979); Elkins v. State, 388 So.2d 1314 (Fla. 5th DCA 1980).

The judgment of conviction is affirmed. Condition (14) of the probation order is modified to apply only to appellant’s probation supervisors and as modified is affirmed. Condition (10) of the probation order is set aside and the cause is remanded to the trial court with directions to afford appellant notice and an opportunity to be heard on the amount of restitution to be imposed. In so requiring a hearing, we express no view on the correctness of the amount required to be paid, but hold only that appellant is entitled to be heard before the court determines the amount.

AFFIRMED in part, REVERSED in part, and REMANDED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

      . § 948.03(l)(g), Fla.Stat. (1977).

      . The trial court contended that any question as to the amount of damage could be resolved in a civil suit.


text:
    Robert W. LUNDQUIST and K & L Contractors, Inc., et al, Appellants, v. Edgar Lurie ALEWINE et al, Appellees.
    No. 79-712/T4-472.
    District Court of Appeal of Florida, Fifth District.
    April 1, 1981.
    Rehearing Denied May 5, 1981.
    W. C. Airth, Jr., of Fowler, Williams & Airth, P.A., Orlando, for appellants.

      William R. Herrman of Malone & Harrison, Orlando, for appellees.
   ORFINGER, Judge.

Appellants were defendants in a slander action which resulted in a jury award against them. They contend that the trial court erred in not granting their motion for directed verdict, or alternatively, in denying their motion for judgment notwithstanding verdict. Further, the corporate defendant contends that an award of punitive damages against it is unwarranted when there was no award of compensatory damages.

Appellee sued appellant K & L Contractors, Inc., and its employee, Robert Lund-quist, for slander. K & L is a construction company which was involved in the construction of a water line for a municipality. The plaintiff, an employee of the General Water Works Corporation, had the duty of inspecting the progress of the water line and the quality of its construction for his employer. Following a discussion between Lundquist and appellee about an alleged construction defect, Lundquist returned to his office and reported to officers of K & L that appellee had solicited a bribe to overlook the defect. Carl Kelly, an officer of K & L, corroborated the discussion between Lundquist and the other officers of the corporation. Kelly further testified that he reported the alleged bribe offer to appel-lee’s employer and the record reflects that following Kelly’s report, appellee was discharged.

When the words published concerning a person tend to degrade him, bring him into ill repute, destroy confidence in his integrity, or cause like injury, such language is actionable per se. Montgomery v. Knox, 23 Fla. 595, 3 So. 211 (1887); Stewart v. Codrington, 55 Fla. 327, 45 So. 809 (1908). Malice is an essential element of slander and may be presumed by the actionable per se nature of the alleged publication. Where, however, a qualified privilege exists, the plaintiff must prove express malice or malice in fact in order to recover. Abraham v. Baldwin, 52 Fla. 151, 42 So. 591 (1906); Axelrod v. Califano, 357 So.2d 1048 (Fla.1st DCA 1978).

The crux of the appellants’ argument on appeal centers around the existence of a “conditionally privileged publication.” This privilege, also known as a “qualified business privilege” or “qualified privilege,” is discussed in 19 Fla.Jur.2d Defamation and Privacy § 58 (1979), as follows: “a communication made in good faith on any subject matter by one having an interest therein, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, even though it contains matter which would otherwise be actionable, and though the duty is not a legal one, but only a moral or social obligation.”

The elements essential to the finding of a conditionally privileged publication are (1) good faith, (2) an interest to be upheld, (3) a statement limited in its scope to this purpose, (4) a proper occasion, (5) publication in a proper manner. Abraham v. Baldwin, supra; Leonard v. Wilson, 150 Fla. 503, 8 So.2d 12 (1942). To be qualifiedly privileged, the communication must be made by a person having a duty or interest in the subject matter to another having a corresponding interest or duty. Axelrod v. Califano, supra.

The pertinent question, therefore is whether as a matter of law, a qualified interest existed in the instant case, thereby obviating the need for submitting the case to the jury.

In passing on a motion for directed verdict, the trial court cannot pass upon the credibility of witnesses or weigh the evidence. Though the court must consider the entire record, the jury is the trier of facts and is the judge of the credibility and weight of the evidence. As stated in Axelrod, supra, when the evidence is conflicting as to the existence or nonexistence of a privilege, there is a mixed question of law and fact, and the fact issue is to be determined by the jury.

In Abraham v. Baldwin, supra, the Florida Supreme Court explained that:

Whether slanderous words uttered are a privileged communication depends upon the circumstances under which they were uttered, and whether or not the facts and circumstances when conceded, establish the privilege, is a question of law for the court; but when the facts and circumstances under which the communication was made are not conceded, the court cannot as a matter of law determine whether the communication was or was not privileged, and a jury must determine the facts under proper instructions from the court.

See also, Myers v. Hodges, 53 Fla. 197, 44 So. 357 (1907).

In Glynn v. City of Kissimmee, 383 So.2d 774 (Fla.5th DCA 1980), in reversing a summary judgment for the defendant in a slander action, we held that a summary judgment was improper when the existence of a qualified privilege was controverted, and under those circumstances whether the privilege exists or has been exceeded is a mixed question of law and fact which should be determined by the trier of facts. See also Axelrod v. Califano, supra.

Here, the facts were not conceded. Thus the trial court was correct in submitting the factual dispute to the jury. There is no contention that the trial court failed to properly instruct the jury. Since a jury issue was presented, there was no error in denying appellee’s motion for directed verdict or for judgment notwithstanding verdict.

On the question of awarding punitive damages against K & L without awarding compensatory damages, it is true that ordinarily a punitive damage award must rest upon some award of compensatory damages. American Motorcycle Institute v. Mitchell, 380 So.2d 452 (Fla.5th DCA 1980). However,

where the defamation complained of is actionable per se, punitive damages may be awarded even though the amount of actual damages is neither found nor shown, for in such a case, the requirement of a showing of actual damages as a basis of an award of exemplary damages is satisfied by the presumption of injury which arises from a showing of libel or slander that is actionable per se.

Saunders Hardware Five and Ten v. Low, 307 So.2d 893 (Fla.3d DCA 1975), cert. denied, 330 So.2d 21 (Fla.1976). See also Bobenhausen v. Cassat Avenue Mobile Homes, 344 So.2d 279 (Fla.1st DCA 1977), cert. discharged, 363 So.2d 1065 (1978). Since the statements made are slanderous per se, malice is presumed. 19 Fla.Jur.2d Defamation and Privacy, § 5 (1979); Bobenhausen, supra. Thus the award of punitive damages was within the jury’s discretion.

Appellants’ other points have been considered but are without merit. Appellants having failed to demonstrate error, the judgments appealed from are affirmed.

AFFIRMED.

SHARP, J., and WALKER, GRISSIM H., Associate Judge, concur.

      . At trial, appellee specifically denied ever asking for or in any way soliciting money to overlook the defect.

      . Appellee was reinstated with back pay approximately six months thereafter.


text:
    STATE of Florida, Appellant, v. Carrie Angilee PETTIS, Appellee.
    No. 79-1116/T4-565.
    District Court of Appeal of Florida, Fifth District.
    April 1, 1981.

      Jim Smith, Atty. Gen., Tallahassee, Steven Wallace, Asst. State Atty., and Lawrence A. Kaden, Staff Legal Asst., Orlando, for appellant.
    Richard L. Wilson, Orlando, for appellee.
   ORFINGER, Judge.

Appellant was charged with battery on a law enforcement officer pursuant to sections 784.03 and 784.07, Florida Statutes (1979), which charge was dismissed in response to a motion by appellant under Rule 3.190(c)(4), Florida Rules of Criminal Procedure. The State appeals and we reverse.

The motion to dismiss did not deny striking Deputy Mallard, but stated that defendant “did not believe she struck” the officer. The State traversed the motion and specifically the attempt by defendant to deny striking the officer. Defendant asserts that if the battery occurred, it was in the course of resisting an unlawful arrest by another officer.

The function of a “(c)(4)” motion to dismiss is to ascertain whether or not the facts which the State relies upon to constitute the crime charged, and on which it will offer evidence to prove it, do, as a matter of law, establish a prima facie case of guilt of the accused. State v. Davis, 243 So.2d 587 (Fla.1971). In considering such a motion, the trial court should not determine fact issues or consider the weight of conflicting evidence or the credibility of witnesses. State v. Fort, 380 So.2d 534 (Fla. 5th DCA 1980).

Unlike the standard employed at trial when the jury considers the evidence, in determining whether the State has shown a prima facie case so as to successfully resist a “(c)(4)” Motion, all inferences are resolved against the defendant. State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981); State v. Fort, supra. If the undisputed facts permit the conclusion that the defendant could be found guilty, the motion must be denied. State v. De Jerinett, 283 So.2d 126 (Fla. 2d DCA 1973); cert. denied, 287 So.2d 689 (Fla.1973). Where material allegations of the motion are denied or disputed in the traverse, the denial of the motion is mandatory. Fort, supra.

Appellee says that the motion to dismiss was granted because the trial court was convinced that the deputy who was allegedly struck was not engaged in the “lawful performance of his duties”. Even if that was the trial court’s reason for dismissal — a conclusion which we cannot reach because the order states no reasons — the motion fails to allege facts to show that Officer Mallard was not so engaged. The failure of the State to traverse any such conclusion has no effect on the result here where there was nothing to traverse.

The order dismissing the information is reversed and this cause is remanded to the trial court for further proceedings consistent herewith.

REVERSED and REMANDED.

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

      . 9.140(c)(1)(A), Fla.R.App.P.


text:
    Romie CALHOUN, IV, Appellant, v. STATE of Florida, Appellee.
    No. 79-203.
    District Court of Appeal of Florida, Fifth District.
    April 1, 1981.

      Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

Appellant, a juvenile, charged as an adult with burglary of a dwelling, pleaded nolo contendere, reserving the right to appeal the denial of a motion to dismiss the information. We affirm.

Appellant’s contention that section 39.-04(2)(e)(4), Florida Statutes (Supp.1978), is unconstitutional has already been determined contrary to his position. State v. Cain, 381 So.2d 1361 (Fla.1980). Appellant contends, however, that Cain did not address the particular area on which he relies, i. e., that the statute shifts the burden of proof to the child to show that he has not previously been found to have committed two delinquent acts, thus unconstitutionally shifting to him the burden of proof of an element of the crime.

No new element of the crime is created by the statute. The decision regarding which court should prosecute a juvenile has nothing to do with a substantive adjudication; rather, it is only the basis by which adjudication is initiated. State v. Cain, supra.

The statute permits the transfer of the prosecution to the juvenile division upon motion of the child, coupled with a showing that he has not “previously been found to have committed two delinquent acts, one of which involved an offense classified under Florida law as a felony.” Section 39.04(2)(e)4, supra. Clearly, this involves a pre-trial proceeding, and does not involve the prosecution of the crime for which the appellant is now charged. Since there is no common law, inherent, or constitutional right to be tried as a juvenile, State v. Cain, supra, it is incumbent on the juvenile to justify the transfer. Carter v. State, 382 So.2d 871 (Fla.5th DCA 1980).

The trial court was correct in denying the motion to dismiss, and the judgment of conviction is

AFFIRMED.

FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur.

      . “With respect to any child who at the time of commission of the alleged offense was 16 or 17 years of age, [the State Attorney may] file an information when in his judgment and discretion the public interest requires that adult sanctions be considered or imposed. Upon motion of the child, the case shall be transferred for adjudicatory proceedings as a child pursuant to § 39.09(1) if it is shown by the child that he had not previously been found to have committed two delinquent acts, one of which involved an offense classified under Florida law as a felony.”