author: PER CURIAM. EHRLICH, Justice, BOYD, Justice, ALDERMAN, Chief Justice,

text:
    Gerald STANG, Petitioner, v. STATE of Florida, Respondent.
    No. 61194.
    Supreme Court of Florida.
    Sept. 2, 1982.
    Rehearing Denied Nov. 24, 1982.

      Richard L. Jorandby, Public Defender and Ellen Morris, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen. and Laura R. Morrison and Sharon Lee Stedman, Asst. Attys. Gen., West Palm Beach, for respondent.
   PER CURIAM.

We review the decision of the District Court of Appeal, Fourth District, in Stang v. State, 403 So.2d 542 (Fla. 4th DCA 1981), wherein the district court has certified, as a question of great public importance, whether this Court’s recent decision in Hoffman v. State, 397 So.2d 288 (Fla.1981), qualifies dicta from our earlier decision in State v. Beamon, 298 So.2d 376 (Fla.1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975). In Hoffman, we held that, even after jeopardy attaches, the State is permitted to amend a statement of particulars to correct a discrepancy as to the date of the offense. Earlier, in Beamon, in dicta we stated that the State may not remedy an erroneous date specified in the statement of particulars, if there is an objection, by amending it to conform to the evidence adduced after presentation of evidence. We hold that Hoffman does qualify Beam-on. Applying the standard of prejudice announced in Hoffman, we further hold that the unique facts of this case demonstrate prejudice to the defendant. Therefore, we quash the decision of the district court holding that Stang was not prejudiced.

Stang was charged with two counts of forgery. In a statement of particulars filed in July, 1979, the State specified that both offenses occurred between the hours of 1 and 7 p.m. on April 27, 1979.

In his opening statement at trial, Stang’s counsel told the jury that the State would be unable to prove beyond a reasonable doubt that the alleged crimes took place on April 27, 1979. He argued that the evidence would show that the checks had been issued one week earlier and that the defense would put on testimony to show that the incident could not have occurred on the date specified in the information and bill of particulars.

After four State witnesses had testified at trial, the State realized that the date in the charging documents was incorrect and moved to change the date in the statement of particulars to April 20, 1979. Over Stang’s objection that his sole defense hinged on the State’s inability to prove the proper date, the trial court granted the motion and suggested that Stang recall all of the witnesses who had already testified and permitted Stang to make an amended opening statement to the jury if he so desired. Stang thereupon requested that two witnesses be recalled for purposes of cross-examination. He did not, however, choose to amend his opening statement. Subsequently, Stang’s taped confession was played to the jury, and he was found guilty as charged.

The Fourth District affirmed the convictions. While acknowledging dicta of this Court’s decision in State v. Beamon, the district court’s majority relied upon Hoffman v. State and characterized Stang’s trial as “fair” in view of the trial court’s willingness to allow the petitioner to restart the proceedings following the amendment to the statement of particulars. Judge An-stead dissented, focusing upon the prejudicial nature of the granting of the amendment and stating that he could not imagine any greater prejudice than forcing the defendant to go back out and face the same jury stripped of the only defense he has claimed at trial.

In State v. Beamon, the State filed an information charging a defendant with robbery and buying, receiving, or concealing stolen property, both offenses allegedly occurring on November 26, 1972. The State filed a bill of particulars which mistakenly alleged that the robbery occurred on November 24, 1972. During a nonjury trial, the defense counsel moved for a judgment of acquittal after the State’s first witness testified that she was robbed on November 26, 1972. The trial judge granted the motion and declared the defendant not guilty of the crime of robbery on November 24, 1972. The State then filed a second information and an amended bill of particulars alleging November 26, 1972, as the date of the offense. While the trial court granted a motion to dismiss on the ground that the defendant was previously placed in jeopardy for the “same offense” and the Third District Court of Appeal affirmed, we held that no double jeopardy and no collateral estoppel were involved. In dicta, we stated:

When there is a bill of particulars, and when it specifies only an exact date upon which the offense occurred, the prosecution is limited, if objection be made, to proof of an offense occurring on that date and no other, under that particular Information; the effect of such a specification of date in a bill of particulars is to narrow the Indictment or Information as to the time within which the act or acts allegedly constituting the offense may be proved.... Nor may the State remedy an erroneous date specified in the bill of particulars, if there is an objection, by amending it to conform to the evidence adduced after presentation of the evidence.

State v. Beamon, 298 So.2d at 378-79.

More recently, however, in Hoffman v. State, we expressly qualified Beamon insofar as it could be interpreted to prohibit any amendment to a statement of particulars after trial has commenced and held that such an amendment is allowed if a defendant will not be prejudiced by it. Hoffman was charged by information with committing armed robbery and false imprisonment on June 1, 1977. The State filed a statement of particulars alleging that the offenses occurred between 11 a.m., June 1, 1977, and 11 a.m., June 2, 1977. After opening statements, the defense counsel pointed out that during its opening argument, the State had commented that the crimes occurred during the late evening of May 31, 1977, or early morning of June 1, 1977. At that point, the State requested permission to amend the statement of particulars, but the defense asked that the State be restricted to the date in the original statement of particulars. After questioning both attorneys regarding the propriety and effect of allowing the amendment, the court granted the State’s request. The court subsequently denied a defense motion for acquittal, ruling that the defendant had not shown that he had been embarrassed in his defense or otherwise prejudiced. On appeal, the district court found that the defendant had not demonstrated that amending the statement of particulars had prejudiced him. We approved the district court’s decision and reiterated that the purpose of the bill of particulars is to give the defendant notice of the particular acts relied upon by the State to establish the crime charged so that a defendant may be fully advised of the nature of the accusation against him and so that he may have an opportunity to prepare a defense. We emphasized that criminal procedure rules are not intended to furnish a procedural device to escape justice and said:

[W]e are again persuaded that the modern trend in criminal cases “is to excuse technical defects which have no bearing upon the substantial rights of the parties. When procedural irregularities occur, the emphasis is on determining whether anyone was prejudiced by the departure. A defendant is entitled to a fair trial, not a perfect trial.” [Lackos v. State,] 339 So.2d [217] at 219 [(Fla.1976)] (quoting Grimes, J.).

397 So.2d at 290.

We further explained in Hoffman that on appeal the defendant has the burden of demonstrating prejudice, but at trial the State, when seeking to amend a statement of particulars, must demonstrate a lack of prejudice to the defendant, and the trial court must inquire into the surrounding circumstances to determine whether the amendment would result in harm or prejudice. The record in Hoffman clearly established that the defense was neither misled by the incorrect date nor prejudiced by the amendment.

We cannot reach the same conclusion in the present case since circumstances establishing no prejudice do not affirmatively appear in the record. What does appear from the record is summarized by Judge Anstead in his dissent as follows:

In essence, the state was allowed to allege one date in an information and bill of particulars, and then, after proving a different date, was allowed to amend the date to conform to the evidence. And the defendant, having in essence already advised six jurors that his only defense would be the state’s inability to prove the date specified, was sent back out to face those same six jurors, his “defense” now obviously in shreds. The natural result was that he was convicted.

403 So.2d at 545 (Anstead, J., dissenting). Under these circumstances, however, the State is not precluded from again prosecuting Stang under a proper information and statement of particulars. State v. Beamon.

Accordingly, the decision of the district court is quashed, and this case is remanded for further proceedings consistent with this decision.

It is so ordered.

ADKINS, OVERTON, SUNDBERG and EHRLICH, JJ., concur.

EHRLICH, J., concurs specially with an opinion.

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

ALDERMAN, C.J., dissents with an opinion, with which McDONALD, J., concurs.

EHRLICH, Justice,

specially concurring.

Sloppy trial preparation and ineptness by the state necessitates a new trial with the resulting utter waste of time, effort, and resources. While the results may very well be the same, we’re not going to violate a defendant’s constitutional right to a fair trial to cover the state’s mistakes.

BOYD, Justice,

concurring in part and dissenting in part.

I concur in the holding that it was error to allow the state to amend its statement of particulars to conform to the evidence elicited from the state’s witnesses. I dissent, however, from the holding that petitioner may be brought to trial again.

Due process requires that indictments and informations be drafted clearly and with specificity, so that the accused knows precisely what he is charged with and is able to intelligently prepare a defense. The purpose of a bill of particulars is to make the accusation even clearer and more specific. In State v. Beamon, 298 So.2d 376, 378-79 (Fla.1974), this Court said:

When there is a bill of particulars, and when it specifies only an exact date upon which the offense occurred, the prosecution is limited, if objection be made, to proof of an offense occurring on that date and no other, under that particular Information; the effect of such a specification of date in a bill of particulars is to narrow the Indictment or Information as to the time within which the act or acts allegedly constituting the offense may be proved.

It is true that in Hoffman v. State, 397 So.2d 288 (Fla.1981), this Court qualified the holding of Beamon. In Hoffman, we held that an amendment to the bill of particulars may be allowed after trial has begun if the defendant is not prejudiced by it. There, the bill of particulars was amended after opening arguments but before any evidence was taken. In such a situation, it may be permissible to allow the trial to proceed upon the amended bill after inquiring into prejudice. Where the presentation of evidence has not yet begun, it is possible to allow the defense some time to prepare to respond to a minor change in the particulars. The present ease, however, is substantially different, and therefore the Hoffman modification of Beamon does not apply here.

In the instant case, the state moved to amend its statement of particulars after four state witnesses had testified. The court granted the motion over the defendant’s objection, thus bringing this case squarely within the clear rule stated in Beamon. No inquiry into prejudice is needed. Prejudice, in such a situation, is to be presumed.

Furthermore, I believe that once the state began to present evidence based on an inaccurate bill of particulars, so that, absent the improper amendment of the bill, a judgment of acquittal would have been required based on what the evidence showed, the second attempt to prove the alleged offenses was barred by the Double Jeopardy Clause. In State v. Katz, 402 So.2d 1184, 1188 (Fla.1981), I stated in dissent:

One of the most awesome powers exercised by officials of the state is the power of our state attorneys and grand juries to institute criminal proceedings by accusing a person of the commission of a crime. The exercise of such authority sets in motion the machinery of the criminal justice system and brings the prosecutorial resources of the state to bear upon an individual. The constitutional prohibition against allowing the state a second opportunity to prove the commission of a crime should extend to situations such as the present cases and should be held to require that when accusatory pleadings are being drafted, they be drafted correctly. If the proof at trial fails to sustain the allegations, retrial should no more be permitted on the basis of corrected allegations than it is on the basis of augmented proof.

The same principle applies here and, in my view, precludes another trial.

ALDERMAN, Chief Justice,

dissenting.

I agree with most of what is said in the majority opinion. My only disagreement is with this Court’s finding that circumstances establishing no prejudice do not affirmatively appear in this record. Instead, I concur with the findings of the trial court and the district court that the defendant was not prejudiced by the amended statement of particulars. As stated by Chief Judge Letts in his concurring opinion in the district court:

Justice may indeed be blind, but Judges should not be blinded. It is apparent that the defendant knew all along with what crime he was charged and on what date it was committed. Nonetheless he chose to wait in ambush, secure in the thought that he could defeat the prosecution by exposing a scrivener’s error of which he was only too well aware.... The accused visited the result upon himself by relying on a technical mistake as his sole defense and should not now be heard to complain.

403 So.2d at 544 (Letts, C.J., concurring specially).

The prejudice against the defendant did not result from the amendment of the statement of particulars which did nothing more than conform the pleading to a true fact already known to the defendant. What prejudiced the defendant and resulted in his conviction was the overwhelming evidence of his guilt, including a taped confession in which the defendant freely and voluntarily admitted his guilt. We should not put the people of the State of Florida to the expense of a new trial for this confessed forger because of a technical defect which has no bearing upon his substantive rights. I conclude, as did Chief Judge Letts, “that if we reverse this conviction, justice will not be served.” 403 So.2d at 545 (Letts, C.J., concurring specially).

McDONALD, J., concurs.


source: Caselaw Access Project

author: McDONALD, Justice. BOYD, Justice, OVERTON, Justice, EHRLICH, Justice, ADKINS, Justice,

license: Public Domain

text:
    Reubin ASKEW, et al., Appellants, v. George FIRESTONE, as Secretary of State, Appellee.
    No. 62719.
    Supreme Court of Florida.
    Oct. 21, 1982.

      Albert J. Hadeed, John K. McPherson, and Terri Wood of Southern Legal Counsel, Inc., Gainesville, for appellants.
    Jim Smith, Atty. Gen., and Eric J. Taylor, Asst. Atty. Gen., Tallahassee, for appellee.
   McDONALD, Justice.

Reubin Askew, Common Cause, and the League of Women Voters of Florida, Inc., appeal a trial court order validating the caption and summary of a proposed constitutional amendment scheduled to appear on the November 1982 general election ballot. Acceding to the parties’ joint suggestion, the First District Court of Appeal certified the trial court order to be of great public importance and to require immediate resolution by the Supreme Court. We have jurisdiction pursuant to article V, section 3(b)(5), Florida Constitution, and reverse the trial court order.

In the November 1976 general election the electorate of Florida approved adding section 8, the “Sunshine Amendment,” to article II of the state constitution. Section 8 declares a public office a public trust which should be secure against abuse. To that end, the section requires full, public financial disclosure by elected officers and candidates for elected offices, provides for loss of pension or retirement benefits if a public officer or employee is convicted of a felonious breach of the public trust, and, central to this appeal, prohibits members of the legislature and statewide elected officers from lobbying their former governmental bodies or agencies for two years following vacation of office. As this Court has previously stated: “Clearly the primary purpose for which the Sunshine Amendment was adopted was to impose stricter standards on public officials so as to avoid conflicts of interest.” Plante v. Smathers, 372 So.2d 933, 936-37 (Fla.1979).

On the next to the last day of the 1982 regular session the legislature passed Senate Joint Resolution 1035, the title of which reads: “A joint resolution proposing an amendment to Section 8 of Article II of the State Constitution relating to lobbying by former legislators and statewide elected officers.” SJR 1035 would amend the first sentence of subsection 8(e) as follows:

(e) No member of the legislature or statewide elected officer shall personally represent another person or entity for compensation before anv state the government body or agency, unless such person files full and public disclosure of his or her financial interests pursuant to subsection (a), of which ■ the- individual was an officer or member for a period of two years following vacation of office.

(Material to be added underlined, material to be deleted struck through.) The proposed amendment, therefore, would remove the absolute two-year ban on lobbying by former legislators and elected officers, retaining that ban only if an affected person failed to make financial disclosure.

Section 101.161, Florida Statutes (1981), provides for submission to popular vote of constitutional amendments and other public measures. The wording of the substance of the amendment and the ballot title must be included in the joint resolution and must be prepared by the amendment’s sponsor and approved by the secretary of state. § 101.-161, Fla.Stat.

The substance of the amendment or other public measure shall be an explanatory statement, not exceeding 75 words in length, of the chief purpose of the measure. The ballot title shall consist of a caption, not exceeding 15 words in length, by which the measure is commonly referred to or spoken of.

Id. (emphasis supplied). Section 101.161 also requires that the substance of a proposed amendment be in “clear and unambiguous language.” In response to these requirements SJR 1035 includes the following proposed title and substance:

FINANCIAL DISCLOSURE REQUIRED BEFORE LOBBYING BY FORMER LEGISLATORS AND STATEWIDE ELECTED OFFICERS

Prohibits former legislators and statewide elected officers from representing other persons or entities for compensation before any state government body for a period of 2 years following vacation of office, unless they file full and public disclosure of their financial interests.

The appellants sued Secretary of State Firestone, in his official capacity, seeking injunctive and declaratory relief, to prevent inclusion of the proposed title and substance on the November ballot. They alleged, among other things, that: 1) the ballot summary is required to be an explanatory statement of the chief purpose of the proposed amendment, written in clear and unambiguous language; 2) the instant summary discloses only the proposed addition of financial disclosure as a condition to after-term lobbying and fails to reveal that the proposal would repeal the existing, more stringent after-term prohibition on lobbying; and 3) the instant summary creates the impression that adopting the proposal would fill a void in conflict of interest protections instead of diluting them. The ap-pellee answered that the language is clear and unambiguous, giving fair notice of the intent and purpose of the proposed amendment, and that the proposal will, in fact, bring former state officials into line with the true intent of the Sunshine Amendment.

After receiving the complaint and the parties’ joint stipulation, Judge Willis, in an extensive and thoughtful order, found that the proposed ballot title and summary meet the requirements of section 101.161. Among others, the court made the following finding:

20. As previously noted, SJR 1035 would achieve two purposes. First, it would eliminate the limited lobbying prohibition against a former legislator from lobbying in the legislature, and a former statewide officer from lobbying in the body or agency of which he was an officer or member for a period of two years following his leaving office. Second, it would impose an absolute prohibition to those officers from lobbying in any government body or agency for the two-year period following vacation of the office, unless such persons filed the financial disclosure required of incumbents or candidates. Under the present law, a former legislator could lobby in any state agency or body except the legislature without financial disclosure during the two years following vacation of his office. If the amendment is adopted, he could lobby in the legislature or elsewhere if he files the necessary financial disclosure.

Askew v. Firestone, case no. 82-2371 (Fla.2d Cir.Ct. Oct. 6, 1982), slip op. at 8-9. The court went on to state that the

inquiry of this Court is limited to whether or not the “substance” has clearly missed the mark of furnishing the electorate of an explanatory statement in clear and unambiguous language of the chief purpose of the measure. I do not find that this is clearly and conclusively shown. It is quite true that the Sunshine Amendment sought and achieved more than financial disclosure of public officials. It deals with deterrence of corruption and conflicting interest. Subsection (e) is directed toward curbing of so-called influence peddling, by setting a limited lobbying quarantine on former officers for a two-year period following their leaving office. However, it was not general quarantine, but it permitted uninhibited lobbying in most areas without disclosure of interests which might be conflicting. The amendment is not a repeal, but a modification of those regulations, relaxing some requirements and imposing others not previously made. I do not find that the failure to state the relaxation of the absolute limited ban on lobbying has rendered the substance inadequate to explain the chief purpose of the measure.

Id. at 9-10 (emphasis supplied). After careful deliberation, we find no factual basis for the trial court’s ruling and hold that he reached the wrong conclusion and that his order must be reversed.

In order for a court to interfere with the right of the people to vote on a proposed constitutional amendment the record must show that the proposal is clearly and conclusively defective. Weber v. Smathers, 338 So.2d 819 (Fla.1976), disapproved on other grounds sub nom Floridians Against Casino Takeover v. Let’s Help Florida, 363 So.2d 337 (Fla.1978). As previously stated, section 101.161 requires that the ballot title and summary for a proposed constitutional amendment state in clear and unambiguous language the chief purpose of the measure. The requirement for proposed constitutional amendment ballots is the same as for all ballots, i.e.,

that the voter should not be misled and that he have an opportunity to know and be on notice as to the proposition on which he is to cast his vote.... All that the Constitution requires or that the law compels or ought to compel is that the voter have notice of that which he must decide.... What the law requires is that the ballot be fair and advise the voter sufficiently to enable him intelligently to cast his ballot.

Hill v. Milander, 72 So.2d 796, 798 (Fla.1954) (emphasis supplied).

Simply put, the ballot must give the voter fair notice of the decision he must make. Miami Dolphins, Ltd. v. Metropolitan Dade County, 394 So.2d 981 (Fla.1981). We find that the proposed title and substance do not set out the chief purpose of the amendment so as to give the electorate fair notice of the actual change in subsection 8(e) wrought by SJR 1035. While the wisdom of a proposed amendment is not a matter for our review, Weber v. Smathers, we are reminded that the “proposal of amendments to the Constitution is a highly important function of government, that should be performed with the greatest certainty, efficiency, care and deliberation.” Crawford v. Gilchrist, 64 Fla. 41, 54, 59 So. 963, 968 (1912). We reiterate that “lawmakers who are asked to consider constitutional changes, and the people who are asked to approve them, must be able to comprehend the sweep of each proposal from a fair notification in the proposition itself that it is neither less nor more extensive than it appears to be.” Smathers v. Smith, 338 So.2d 825, 829 (Fla.1976).

Section 8 embodies four important state concerns: The public’s right to know an official’s interest, the deterrence of corruption and conflicting interest, the creation of public confidence in state officials, and assistance in detecting and prosecuting officials who have violated the law. Plante v. Gonzalez, 575 F.2d 1119, 1134 (5th Cir. 1978), cert. denied, 439 U.S. 1129, 99 S.Ct. 1047, 59 L.Ed.2d 90 (1979). Subsection 8(e)

was designed specifically to prevent those who have plenary budgetary and statutory control over the affairs of public agencies from potentially influencing agency decisions (or giving the appearance of having an influence) when they appear before-the agencies as compensated advocates for others.

Myers v. Hawkins, 362 So.2d 926, 930 (Fla. 1978). As it stands, subsection 8(e) precludes lobbying a former body or agency for two years after an affected person leaves office. The ballot summary neglects to advise the public that there is presently a complete two-year ban on lobbying before one’s agency and, while it does require the filing of financial disclosure before anyone may appear before any agency for the two years after leaving office, the amendment’s chief effect is to abolish the present two-year total prohibition. Although the summary indicates that the amendment is a restriction on one’s lobbying activities, the amendment actually gives incumbent office holders, upon filing a financial disclosure statement, a right to immediately commence lobbying before their former agencies which is presently precluded. The problem, therefore, lies not with what the summary says, but, rather, with what it does not say.

Had SJR 1035 not been an amendment to an existing provision, if it had been a totally new provision, its ballot summary and title would probably have been permissible. The change to subsection 8(e) is as stated, but the stated change is only incidental to the true purpose and meaning of section 8 in its entirety. Public financial disclosure is needed to assure the accountability of state officers and is the heart of section 8. But, in subsection (e), section 8 also expresses another vital concern — the ban on lobbying. The ballot summary fails to give fair notice of an exception to a present prohibition.

If the legislature feels that the" present prohibition against appearing before one’s former colleagues is wrong, it is appropriate for that body to pass a joint resolution and to ask the citizens to modify that prohibition. But such a change must stand on its own merits and not be disguised as something else. The purpose of section 101.161 is to assure that the electorate is advised of the true meaning, and ramifications, of an amendment. A proposed amendment cannot fly under false colors; this one does. The burden of informing the public should not fall only on the press and opponents of the measure — the ballot title and summary must do this.

Fair notice in terms of a ballot summary must be actual notice consisting of a clear and unambiguous explanation of the measure’s chief purpose. The chief purpose of SJR 1035 is to remove the two-year ban on lobbying by former legislators and elected officers. The ballot summary, however, does not adequately reflect that purpose and, therefore, does not satisfy the requirements of section 101.161. The Court must act with extreme care, caution, and restraint before it removes a constitutional amendment from the vote of the people. Nevertheless, it is clear and convincing to us that the ballot language contained in SJR 1035 is so misleading to the public concerning material changes to an existing constitutional provision that this remedial action must be taken. We therefore find SJR 1035 invalid. The trial court order is reversed, and we order that the ballot caption and summary included in SJR 1035 be stricken from the November 1982 general election ballot.

It is so ordered.

NO MOTION FOR REHEARING WILL BE ALLOWED.

ALDERMAN, C.J., concurs.

BOYD, J., concurs with an opinion.

OVERTON, J., concurs with an opinion with which McDonald and EHRLICH, JJ., concur.

EHRLICH, J., concurs with an opinion with which ALDERMAN, C.J., and MCDONALD, J., concur.

ADKINS, J., dissents with an opinion.

BOYD, Justice,

concurring specially.

Nothing in the government of this state or nation is more important than amending our state and federal constitutions. The law requires that before voting a citizen must be able to learn from the proposed question and explanation what the anticipated results will be.

In the proposed amendment considered here a voter would think a limitation is to be placed upon legislators for the first time to prohibit lobbying that body for two years after leaving office and permitting it if they file financial disclosure. In fact, the present Florida Constitution prohibits lobbying the Legislature for two years after leaving office. A person who may vote to adopt the amendment for the purpose of limiting lobbying by legislators will actually achieve directly opposite results in removing the present lobbying ban.

When questions are presented to voters courts should not remove such issues from the ballot without compelling constitutional reasons. I do not feel there is a lawful basis to dissent and, with reluctance, I concur in the majority opinion to remove the proposed amendment from the November 1982 general election ballot.

OVERTON, Justice,

concurring specially.

I concur with the majority opinion and agree that the ballot language conclusively misleads the public concerning material changes contained in the proposed constitutional amendment.

I am, however, concerned with the substantial power this Court is exercising in removing from the ballot a constitutional amendment which has been placed there by the legislature of this state on a vote of 29 to 6 in the senate and 96 to 15 in the house. Because of the defective ballot language, the public is now prohibited from voting on this amendment. Infringing on the people’s right to vote on an amendment is a power this Court should use only where the record clearly and convincingly establishes that the public is being misled on material elements of the amendment. It concerns me that the public is being denied the opportunity to vote because no process has been established to correct misleading ballot language in sufficient time to change the language.

To avoid future situations in which this Court may again have to exercise this extraordinary power of striking an amendment from the ballot due to misleading ballot language, the legislature and this Court should devise a process whereby misleading language can be challenged and corrected in sufficient time to allow a vote on the proposal.

Since our constitution requires that amendments and revisions be filed with the secretary of state at least ninety days prior to the designated election date, I suggest that a process be established by the legislature to afford those who desire to challenge the ballot language to be able to do so within thirty days of the filing of the amendment or revision. This Court should then create an expedited process whereby such challenges can be settled within thirty days of the filing of the challenge. In this process a means should be provided for the correction of defective ballot language so that the election on the proposal may proceed.

This Court should do everything possible to cooperate in establishing such a process so that we may eliminate the necessity for this Court to again have to deny the people a right to vote on the merits of a constitutional proposition due to faulty ballot language. The power to remove an amendment or revision from the ballot is too great to reside solely in the few members of this Court.

McDonald and EHRLICH, JJ., concur.

EHRLICH, Justice,

concurring.

I join in the opinion of the Court with these additional comments.

Appellee in his brief says “[gjranted, there is a tradeoff, but in giving up the total ban to lobby before their former agency for two years, the legislature has gained something valuable in return.” Appellee’s Brief at 12. (Emphasis supplied.) The ballot summary accurately describes one-half of the “trade-off,” namely, that former office holders would be banned from lobbying or representing someone before all state bodies and agencies unless they file full disclosures of their financial interests with the Secretary of State. But by appellee’s counsel’s candid admission during oral argument, the ballot summary does not disclose the other half of the “trade-off,” namely, giving up the total ban to lobby before the former agency for two years. The chief purpose of the amendment is the “tradeoff” and the failure of the ballot summary to state the full “trade-off” is a failure to comply with the mandatory requirements of section 101.161, Florida Statutes (1981), and hence the ballot summary is fatally defective.

The same deficiency in the ballot summary causes it to be misleading. In my opinion the proposed ballot summary is deceptive, because although it contains an absolutely true statement, it omits to state a material fact necessary in order to make the statement made not misleading. If the ballot summary had contained the words “and deletes from the Constitution the absolute ban against such representation during such two-year period,” or words to that effect, the ballot summary would have fairly complied with section 101.161, Florida Statutes (1981), and would not have been misleading.

I do not intend to imply that the framers of the joint resolution and those members of the legislature who voted for it intentionally set out to mislead or deceive the voters. That is undoubtedly not the case. All I say is that the end result of their well-intentioned efforts was not in compliance with section 101.161, Florida Statutes (1981).

Mr. Justice Adkins ends his dissent with a rousing clarion call that the people should be allowed to vote on the proposal. I join with him in the belief that the people ought to be able to vote on amendments to their constitution. I differ with him in that I believe that the mandate of the legislature expressed in section 101.161, Florida Statutes (1981), was not complied with here for the reasons expressed above and in the Court’s opinion, and hence the proposed amendment should not be on the ballot. This by no means forecloses a future legislature from submitting to the people the proposed constitutional amendment so long as the ballot title and ballot substance comply with the statutory requirements.

ALDERMAN, C.J., and McDONALD, J., concur.

ADKINS, Justice,

dissenting.

The only issue in this case is whether the language of the caption and substance of the proposed amendment meets the requirements of section 101.161, Florida Statutes. This statutory provision only requires that the “chief purpose of the measure” be set forth in the ballot summary. Although there may be multiple purposes in the constitutional amendment, it would be impractical to list all the purposes; rather, it is the chief purpose that must be stated. In the original Sunshine Amendment as passed by the people, its “chief purpose” was financial disclosure. It is not only reasonable, but logical, to say that the “chief purpose” of the proposed amendment is “financial disclosure.” This gives “fair notice” that the Sunshine Amendment is being changed.

We are required to uphold the action of the legislature if there is any reasonable theory on which it can be done.

The majority seems to ignore article II, section 3, Florida Constitution, which prohibits one branch of government from exercising any powers appertaining to another, unless expressly provided in the Constitution. The legislature has full power to enact measures such as section 101.161, Florida Statutes (1981), to regulate the form of the ballot; including the contents of summaries of proposals for constitutional change.

The majority opinion seems to impute fraud and deceit to the legislature. But all the legislature is required to do, under its statute, is give “fair notice” of the contents of the amendment. The summary is not challenged for failing to provide details of the proposed amendment. In Hill v. Milander, 72 So.2d 796 (Fla.1954), we held that the whole proposal did not have to be printed on the ballot. We also said that a proposal need not be extensively explained in the voting booth. Miami Dolphins v. Metro Dade County, 394 So.2d 981, 987 (Fla.1981).

Nor is the summary challenged because it does not debate the merits of both sides of the issue. The challenge is restricted to the theory that the ballot summary does not provide the public fair notice of the repealing effect of the proposed amendment. But did it repeal or did it amend?

Section 8(e) as it presently stands prohibits, for a period of two years following their leaving office, members of the legislature and statewide elected officers from lobbying or representing anyone for compensation before government bodies of which they were a member. This was a very limited ban. While a former legislator would be banned presently from lobbying before the legislature, he would not be banned from lobbying or representing someone before any other state body or agency.

If the purpose of section 8(e) was to prevent all influence peddling, it failed from the start. The individual was and still is free to peddle his influence before any other state body.

The proposed change brings former state officials into line with the true intent of the Sunshine Amendment. Instead of being able to freely lobby in front of other state agencies immediately after their vacation of office, the former officeholders would be banned from lobbying or representing someone before any and all state bodies and agencies unless they file full dislcosure of their financial interests with the Secretary of State.

The requirement of financial disclosure by certain former elected officials is more closely attuned to the purpose of the Sunshine Amendment than is the present section 8(e).

The burden is on the appellants to show “on the record that the proposal is clearly and conclusively defective”, a burden the circuit court found the appellant had failed to carry. Anyone can read the summary and clearly know what the purpose of the proposed amendment is. There are no hidden meanings or deceptive phrases.

At an election held March 11,1980, article V, section 3 of the Florida Constitution pertaining to the jurisdiction of this Court was substantially revised. What was submitted to the people for adoption was a statement on the ballot which read “proposing an amendment to the state constitution to modify the jurisdiction of the Supreme Court”. See Jenkins v. State, 385 So.2d 1356, 1364 (Fla.1980). Just as here, the substance of the amendment repealed some of our jurisdiction. This proposed amendment was adequately explained to the public. See Jenkins v. State at 1362. If this short statement was sufficient to give fair notice of the amendment which we sponsored, I believe we should also approve the statement and summary prepared by the legislature in the instant case.

Fair notice is not strictly limited to the ballot summary. Fair notice can also be shown by the amount of information disseminated to the general public. Hill v. Milander.

It is important to note that when the Sunshine Amendment was passed the “explanation” emphasized that it provided a constitutional mandate for full and public disclosures of campaign finances and the personal finances of public officials. The public was told that “the cornerstone of the amendment is the provision requiring financial disclosure.”

How can it be said that it is not fair notice to state that “financial disclosure” is the main purpose of a proposed amendment?

The legislature certainly has the ability to prepare a summary that would not mislead a person of average intelligence as to the scope of the law and put that person on notice thereby causing him to inquire into the body of the provision itself. They have done so. As a practical matter, the public generally is now more familiar with the contents and effect of this amendment than any other which will be on the ballot.

The people should be allowed to vote on the proposal.

      . The legislature can propose amendments to the state constitution. Art. XI, § 1, Fla.Const. Subsection 8(e) currently provides as follows:
      (e) No member of the legislature or statewide elected officer shall personally represent another person or entity for compensation before the government body or agency of which the individual was an officer or member for a period of two years following vacation of office. No member of the legislature shall personally represent another person or entity for compensation during term of office before any state agency other than judicial tribunals. Similar restrictions on other public officers and employees may be established by law.
      SJR 1035 would amend only the first sentence of subsection 8(e), leaving the rest of the paragraph intact.

      . The appellants quote Justice Roberts in dissent to Weber v. Smathers, 338 So.2d at 824: “Where an amendment is by Legislative Resolution ... there are always public hearings, committee studies, and public debate in developing the format of the proposal. .. . ” They charge that the legislature violated the virtues of legislatively proposed amendments, as described by Justice Roberts, by passing SJR 1035 on the next to the last day of the session “without prior public notice, without opportunity for public input, without reference to legislative committees for study, and with less than five minutes of deliberation and debate in each chamber.” The trial court found SJR 1035 to have been properly passed, and we do not disturb that finding.

      . We note the house debate where Representative Batchelor made an eloquent plea for not passing the joint resolution, reminding his colleagues of the public’s interest in the Sunshine Amendment and warning them about the importance of appearances. Transcript of Tape of House Debate on SJR 1035, Mar. 17, 1982, at 3-4. In response Representative Richmond stated that the legislature was more concerned with righting wrongs than with appearances. Id at 4.

      . We note that § 11.045, Fla.Stat. (1981), sets requirements on those who would lobby the legislature itself.


author: PER CURIAM.

text:
    Daniel Morris THOMAS, Appellant, v. STATE of Florida, Appellee. Daniel Morris THOMAS, Petitioner, v. Louie L. WAINWRIGHT, Respondent.
    Nos. 62751, 62747.
    Supreme Court of Florida.
    Oct. 21, 1982.

      Douglas N. Duncan of Foley & Colton, West Palm Beach, for appellant/petitioner.

      Jim Smith, Atty. Gen., and David T. We-isbrod, Asst. Atty. Gen., Tampa, for appel-lee/respondent.
   PER CURIAM.

Daniel Morris Thomas, a state prisoner under a sentence of death and a warrant for the execution of such sentence, moved the court in which he was tried and sentenced, under Florida Rule of Criminal Procedure 3.850, for an order vacating the judgment and sentence. He also asked for a stay of execution pending the disposition of the motion. The court held an evidentia-ry hearing and denied the motion without entering a stay. Thomas appealed and filed an application for a stay of execution pending the disposition of the appeal. He has also filed a writ of habeas corpus with this Court. We decline to stay the execution, affirm the denial of the motion to vacate, and deny the petition for habeas corpus.

Appeal of Denial of Rule 3.850 Motion

Appellant set forth seven grounds for post-conviction relief in his motion below: (1) that the trial judge applied the capital felony sentencing law in such a way as to restrict the presentation and consideration of mitigating factors to the statutory mitigating circumstances; (2) that appellant was deprived of the right to the effective assistance of counsel at his trial; (3) that the instructions to the jury at the sentencing phase of the trial had the effect of unconstitutionally shifting the burden of proving mitigation to the defendant; (4) that the capital felony sentencing law is applied in an arbitrary and capricious manner, with improper discrimination based on race, gender, geography, and economic status; (5) that the capital felony sentencing law is unconstitutional as applied because it fails to provide guided, individualized sentencing determinations; (6) that a sentence of death is inappropriate in this case because of the tenuousness of the evidence of guilt and irrevocability of the punishment; and (7) that the trial court erred in holding certain statements of the defendant admissible in evidence.

Five of the seven points raised — listed above as (1), (3), (5), (6), and (7) — were summarily dismissed by the trial court on the ground that they were inappropriate matters to be raised in a Rule 3.850 motion. The court found that the five contentions either were or could have been raised in the initial appeal from the judgment and sentence. Appellant contends that because the errors complained of are fundamental in nature, reconsideration or a new opportunity to raise them is required. Appellant’s argument is without merit. The contentions which the trial court summarily denied were all issues that either were or could have been raised on the initial appeal and therefore may not be considered in a proceeding under Rule 3.850. Demps v. State, 416 So.2d 808 (Fla.1982); Goode v. State, 403 So.2d 931 (Fla.1981); Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980).

The trial court considered on its merits and ruled upon the contention that the capital felony sentencing law is applied in an arbitrary and discriminatory manner. Appellant contends that the trial court should not have ruled against him on this point without granting an evidentiary hearing and the appointment of experts to assist appellant in the development and presentation of the claim. Appellant argues that the capital felony sentencing law is being applied based on factors having no proper relation to the circumstances of the crime and the character of the offender. The asserted existing improper factors of discrimination are: (1) geographic discrimination, in that there are disparate rates of imposition of death sentences between metropolitan and non-metropolitan areas and among three broad regions of the state; (2) discrimination based on the economic status of the offender; (3) discrimination based on the sex of the offender; (4) discrimination among offenders based on the occupational status of their victims; and (5) discrimination among offenders based on the race of their victims.

With his motion appellant filed some data from what were characterized as “preliminary studies” of capital sentencing in Florida, asked for an evidentiary hearing, and asked for funds to employ experts to assist in proving the factual allegations. Appellant argues that his allegation of discrimination based on the economic status of the offender calls into play the Fourteenth Amendment, which he says prohibits wealth-based discrimination in the criminal justice process. He argues that his allegations raised a substantial enough question to require the appointment of experts to help him develop his claim.

In Meeks v. State, 382 So.2d 673 (Fla. 1980), five justices of this Court, in two specially concurring opinions, rejected victim-oriented disparity statistics as a ground for a constitutional discrimination challenge. Such an approach “has no bearing on the actual conduct of the offender as the determining factor of who lives and who dies.” Id. at 676 (Overton, J., specially concurring).

In Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979), the court did not hold that victim-oriented discrimination allegations are per se not cognizable, but did hold that in light of readily stated possible innocent explanations for the disparity, the statistics presented were an inadequate factual basis upon which to ground a claim of discrimination. In Adams v. State, 380 So.2d 423 (Fla.1980), and Henry v. State, 377 So.2d 692 (Fla.1979), we rejected allegations of geographic discrimination in the application of the death penalty because the factual assertions were hypothetical and inadequately supported. We hold that, as was the case in Spinkellink v. Wainwright, Meeks v. State, Adams v. State, and Henry v. State, the appellant’s allegations of discrimination do not constitute a sufficient preliminary factual basis to state a cognizable claim.

The remaining issue raised by the motion below is whether appellant was deprived of the effective assistance of counsel at his trial. In support of his contention appellant sets out four items, three of which he characterizes as specific acts or omissions; the remaining point is that the court deprived appellant of • effective assistance when it denied trial defense counsel’s motion to withdraw.

In order to obtain relief on the ground of ineffective assistance of counsel in a capital case a defendant must (1) detail a specific act or omission of counsel; (2) carry the burden of showing that the specific act or omission was a substantial deficiency, measurably below the performance level expected of competent counsel; (3) establish the likelihood that the deficiency affected the outcome; and (4) withstand the state’s attempt at rebuttal, which the state can achieve by showing lack of prejudice beyond a reasonable doubt. Knight v. State, 394 So.2d 997 (Fla.1981).

Appellant contends that his trial lawyer (1) failed to develop and present available evidence of mitigating circumstances at the sentencing phase of the trial; (2) failed to request individual examination of prospective jurors; and (3) failed to adequately conduct the examination of prospective jurors regarding the effects of pretrial publicity. From the record we find to the contrary. Defense counsel did attempt to present and succeeded in presenting evidence of mitigation and evidence pertaining to appellant’s background, going beyond the statutory mitigating factors. There was no omission and no deficiency. The failure to request individual voir dire of veniremen was within the range of performance expected of competent attorneys and was not a deficiency. The voir dire of prospective jurors that was conducted was thorough and met the applicable standard of performance. Thus there was no omission and no deficiency.

Appellant’s remaining point regarding ineffectiveness of counsel relates not to the actual conduct of defense counsel but focuses on the court’s denial of defense counsel’s motion to withdraw. Appellant asserts that there was a clear showing prior to his trial that an irreconcilable conflict existed between himself and his appointed attorney, an assistant public defender. The court’s refusal to appoint a different attorney, appellant argues, deprived him of effective assistance of counsel. At the hearing in the court below it was established that the difficulty between appellant and his lawyer was due to appellant’s refusal to communicate with the lawyer. The court ruled that this constitutes no ground for holding that there was a denial of effective assistance of counsel. The court also noted that since the issue of withdrawal was presented to the trial court and ruled on, it could have been argued on appeal and therefore is not a proper matter to reliti-gate on a Rule 3.850 motion. We agree on both points, and therefore deny relief on this issue. A defendant must not be allowed to refuse to cooperate with his attorney and then attempt to create an issue of ineffective counsel on the basis of his refusal to cooperate.

Accordingly, the denial of the motion for post-conviction relief under Rule 3.850 is affirmed.

Petition for Habeas Corpus

In seeking a writ of habeas corpus to relieve him of the judgment and the sentence of death, petitioner argues that he was not afforded his constitutional right to a meaningful appeal in that his appellate counsel failed to render reasonably effective assistance of counsel. The failings which petitioner sets out can be classified as relating either to matters arising out of the guilt-or-innocence phase of the trial or matters arising out of the sentencing phase. With regard to the guilt phase, petitioner asserts that his appellate counsel was ineffective by reason of (1) failure to raise the question of trial court error in excluding proffered defense testimony that would have undermined the evidentiary link between the defendant and the murder weapon; (2) inadequately presenting on appeal the question of whether certain statements of the defendant to police officers should have been suppressed as improperly obtained; and (3) failure to brief on appeal the issue of whether the court had erred in denying defense counsel’s motion to withdraw.

With regard to the sentencing phase, petitioner asserts that his appellate counsel was ineffective by reason of (1) failure to raise on appeal the question of whether the trial court restricted the jury’s and its own consideration of mitigation to statutory mitigating circumstances; (2) failure to argue that the trial court’s instructions had shifted to the defendant the burden of proving mitigating circumstances; (3) failure to argue that the trial court had erred in finding the capital felony heinous, atrocious, and cruel; and (4) failure to argue that section 921.141(5)(d), Florida Statutes (1975), was unconstitutionally vague due to statutory changes in the criminal laws pertaining to rape.

At the trial, the state presented evidence of statements of the defendant to the effect that he had stolen a certain .22 caliber rifle in a previous burglary, and the rifle was then established as having been the murder weapon. The defense sought to introduce the testimony of a police officer to the effect that Lee 0. Martin had also participated in the previous burglary. The trial court declined to admit this testimony on the ground of lack of relevancy. If that ruling was error, then it was harmless because the record shows that there was other evidence of Martin’s participation in the antecedent burglary and defense counsel freely discussed it in closing argument. Appellate counsel was not obliged to argue the issue on appeal since appellate counsel’s responsibility is to present, in as compelling a manner as possible, those contentions that are most likely to be successful, and taking into consideration the limitations of time and space that necessarily accompany the taking of an appeal.

Petitioner says that his appellate counsel inadequately presented the question of whether the court erred in admitting appellant’s statements regarding the previous burglary. While appellate counsel argued that the testimony was improper collateral crime evidence, he did hot argue that appellant’s statement had been obtained through improper interrogation practices. Looking at the record, however, we find that the issue is not so clear that appellate counsel’s foregoing it must be seen as a substantial deficiency.

Petitioner argues that his appellate counsel should have argued that the trial court erred in denying defense counsel’s motion to withdraw. As we pointed out in connection with the Rule 3.850 appeal above, the motion was based on the defendant’s lack of cooperation. In denying the motion to withdraw, the trial court concluded that there was no alternative to representation by the public defender’s office since appointment of a new attorney would not have changed the defendant’s uncooperative attitude. An argument on appeal that the ruling was error would not have stood much chance of success. Therefore the tactical decision to abandon the issue was not a substantial deficiency and, even if it was, a different decision by counsel would most likely not have changed the outcome.

Regarding asserted errors in the sentencing phase, petitioner says his appellate counsel was ineffective in that he did not argue that the trial judge improperly restricted himself and the jury to consideration of statutory mitigating circumstances. Contrary to petitioner’s assertions, the trial judge’s application of the statute, his rulings on evidence, and his instructions to the jury were not unconstitutionally restrictive. See Peek v. State, 395 So.2d 492 (Fla.1980), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981). Furthermore, counsel need not be expected to anticipate developments in the law which make possible the raising of novel issues. Meeks v. State, 382 So.2d 673 (Fla.1980). Finally, we note from the file of the appeal that counsel did present this issue in a supplemental brief when the decision in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), was published. Therefore we find no deficiency here.

Petitioner says his appellate counsel was deficient for failing to raise the issue of unconstitutional shifting of the burden to the defendant to prove his entitlement to have his life spared. However, since the instructions in question were in conformity with the law as stated in State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1951, 40 L.Ed.2d 295 (1974), there was no improper shifting of the burden. Since there was no trial court error, there was no deficiency in not arguing the question on appeal. Jackson v. Wainwright, No. 60,271 (Fla. October 7, 1982).

Petitioner says that his appellate counsel was deficient for failure to argue that the trial court erred in finding the capital felony to be heinous, atrocious, or cruel. The trial judge, in making the finding, recited actions of the defendant at and around the time of the murder that did not strictly relate to the method of killing and the conduct of the defendant toward the victim. There were ample grounds, however, to support the finding that the murder was especially heinous, atrocious, and cruel. Therefore the omission to question the finding on appeal was not a deficiency. Even if there was a deficiency in failing to raise the issue, petitioner has not shown a likelihood that the outcome of the appeal would have been different had the issue been argued.

Petitioner says his appellate counsel should have argued that the capital felony sentencing law is vague because one of the aggravating circumstances refers to murders in the course of rape and the law of rape has been changed by the adoption of the sexual battery statutes. The issue that petitioner says should have been raised is without merit. Adams v. State, 412 So.2d 850 (Fla.1982). Therefore we cannot say the failure to raise it was a substantial deficiency in appellate counsel’s performance.

We find that petitioner has failed to establish that he was not afforded reasonably effective assistance of counsel on his appeal and therefore deny the petition for a writ of habeas corpus.

We now reiterate our rulings in these proceedings. The denial of the motion for post-conviction relief is affirmed. The petition for writ of habeas corpus is denied. The application for a stay of execution is denied.

NO MOTION FOR REHEARING WILL BE ALLOWED.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, MCDONALD and EHRLICH, JJ., concur.

It is so ordered.

       This Court affirmed the judgment and sentence on Thomas’s initial appeal. Thomas v. State, 374 So.2d 508 (Fla. 1979). The United States Supreme Court declined to review the decision. Thomas v. Florida, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980).


text:
    Eugene WRIGHT, Appellant, v. The STATE of Florida, Appellee.
    Nos. 81-1265, 81-1553.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Rehearing Denied Oct. 1, 1982.
    Bennett H. Brummer, Public Defender and Sheryl Lowenthal Javits, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

Affirmed. Garrett v. State, 335 So.2d 876 (Fla. 4th DCA 1976); Cox v. State, 243 So.2d 611 (Fla. 3d DCA 1971); § 812.014, Fla.Stat. (Supp.1980); § 812.022(2), Fla. Stat. (1979); § 812.041, Fla.Stat. (1979).


author: DELL, Judge. DELL, Judge.

text:
    Rose THALLER, Appellant, v. WATERFORD POINT CONDOMINIUM APARTMENTS, INC., Appellee.
    No. 81-949.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 1982.
    Rehearings Denied Nov. 24,1982.

      Harry G. Carratt of Morgan, Carratt & O’Connor, P.A., Fort Lauderdale, for appellant.
    Mark B. Schorr of Becker, Poliakoff & Streitfeld, P.A., Fort Lauderdale, for appel-lee.
   DELL, Judge.

Rose Thaller appeals from the judgment of foreclosure of lien for non-payment of a special assessment, imposed by appellee, Waterford Point Condominium Association.

The developer of the condominium held a long term lease on the recreational facilities. The terms of the lease granted appel-lee an option to purchase the recreational facilities upon approval by 75% of the voters of appellee. At a properly noticed special meeting the unit owners voted either in person or by proxy. Seventy-eight percent of the membership voted in favor of purchasing the recreational facilities, thirteen percent voted against the purchase, and nine percent abstained. Following the unit owners’ approval of the purchase of the recreational facilities, appellee assessed each unit its proportionate share of the purchase price. When appellant failed to pay the assessment, appellee filed a claim of lien against her condominium unit. Appel-lee then filed its complaint in foreclosure, to which appellant raised affirmative defenses and filed a compulsory legal counterclaim, contending that the filing of the claim of lien constituted slander of title. Appellant demanded jury trial on all issues so triable.

The court heard the equitable foreclosure first, finding that the slander of title claim would fail if the foreclosure action terminated favorably to appellee. At the conclusion of trial, the judge found in favor of appellee on all issues.

Appellant presents four points for consideration: whether appellee had the power to purchase these facilities and assess her therefor; whether the trial judge erred by trying the equitable claim to the court before trying the legal counterclaim to the jury; whether the trial judge imposed an improper burden of proof upon her at the trial of the foreclosure suit; and whether the trial judge improperly imposed certain costs upon her.

Appellant’s first point is moot. We ruled in favor of appellee on this issue in Waterford Point Condo. Apts. v. Fass, 402 So.2d 1327 (Fla. 4th DCA 1981).

This Court succinctly stated the rules governing the order in which claims should be tried in Adams v. Citizens Bank of Brevard, 248 So.2d 682, 684 (Fla. 4th DCA 1971).

It has been held that if a compulsory legal counterclaim entitles the counter-claimant to a jury trial on issues which are not common to any issue made by the equitable complaint, the trial court should proceed to try the equitable issue nonjury with appropriate provision made for a jury trial as to the law issues if disposition of the equitable issues does not conclude the case, [citation omitted]. But where the compulsory counterclaim entitles the counter-claimant (upon timely demand) to a jury trial on issues which are sufficiently similar or related to the issues made by the equitable claim that a determination by the first fact finder would necessarily bind the later one, such issues may not be tried nonjury by the court since to do so would deprive the counter-claimant of his constitutional right to trial by jury, [citation omitted] [emphasis added].

In her counterclaim, appellant alleged that appellee “failed to receive the required percent of approval votes” to acquire this property. Since the validity of the claim of lien rests upon proper approval of the proposal to purchase the recreational facilities, it would seem on cursory examination that whether adequate approval votes existed presented a jury issue because of questions of fact common to both the equitable claim and legal counterclaim. On closer scrutiny, however, appellant’s claim rests on asserted irregularities in certain proxies, which appellant asked the court to invalidate. Invalidation of proxies falls within the court’s equity jurisdiction. See Belcher v. Schilling, 309 So.2d 32 (Fla. 3d DCA 1975), cert. den., 318 So.2d 404 (Fla.1975); Pearson v. First Fed. Savings & Loan Ass’n, 149 So.2d 891 (Fla. 2d DCA 1963). Thus, there existed no common issue of fact, triable to the jury as a matter of right, and this court must affirm. See Firestone v. Firestone, 263 So.2d 223 (Fla.1972).

Appellant also contends that the court imposed an improper burden of proof upon her. The trial judge stated that when a party attacks the validity of a corporate vote, the court presumes, in the absence of evidence to the contrary, that the proxies presented and voted were executed properly and given by persons entitled to vote. The judge found that appellant did not overcome this presumption. Appellant relies on Nationwide Mutual Ins. Co. v. Griffin, 222 So.2d 754 (Fla. 4th DCA 1969), as support for her argument that the court imposed an improper burden upon her. That is, she contends that she had only the burden of mere production, rather than persuasion. We disagree. Even if the appellant introduced evidence sufficient to destroy tjie presumption in favor of appellee, this did not raise a new presumption of invalidity in her favor. Rather, under Nationwide the court must determine the issue on the evidence as though no presumption had ever existed. Appellant raised irregularity of proxies in her affirmative defense and counterclaim. The Nationwide case does not operate to shift to appellee the burden to disprove appellant’s affirmative claims. We have examined the evidence and hold it insufficient to invalidate the proxies in question.

Finally appellant contests the amount of the judgment. The court properly assessed attorney fees, but we perceive an error in the award of principal and interest. Article XI, Section 11 of the Declaration of Condominium provides:

(a) Interest: Application of Payments. Assessments and installments thereof paid on or before ten (10) days after the date when due shall not bear interest but all sums not paid on or before ten (10) days after the date when due shall bear interest at the rate of ten (10%) percent per annum and all costs incident to the collection and the action, suit or proceedings, .... (emphasis added).

Similarly, the Claim of Lien provides for the recovery of the principal amount ($6,675.47), plus interest at the rate of 10%, a reasonable attorney’s fee and the costs incurred by the Association for collection of the assessment and filing of the Claim of Lien. However, appellee introduced evidence of the principal amount, interest at 10% ($l,8289/day) and also appellant’s proportionate share costs incident to the bank loan which appellee took to cover unpaid assessments, together with 10% interest thereon, and appellant’s proportionate share of interest on the bank loan, at 12% per annum.

By our calculations, the principal amount plus interest at 10% from the due date to the date of final judgment amounts to $8,823.60. In his final judgment, the trial judge awarded appellee principal and interest in the amount of $11,918.80. We find this award erroneous. Appellee has limited itself to 10% interest in the Declaration of Condominium, and the Claim of Lien does not assert entitlement to other interest charges as damages. Accordingly, we reverse and remand for correction of the final judgment, which shall not include any interest or costs incident to the execution of the bank loan.

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH DIRECTIONS.

DOWNEY, J., and SCHWARTZ, ALAN R., Associate Judge, concur.

ON MOTIONS FOR REHEARING

DELL, Judge.

Although we find no merit in the petitions for rehearing filed by appellant and appellee, appellee’s petition correctly points out that we have misquoted Article XI § 11(a) of the Declaration of Condominium. Accordingly the opinion issued by this Court on August 25, 1982 is amended to include the full text of Article XI § 11(a) and (b), as follows:

11. Collection.

(a) Interest: Application of Payments. Assessments and installments thereof paid on or before ten (10) days after the date when due shall not bear interest but all sums not paid on or before ten (10) days after the date when due shall bear interest at the rate of ten (10%) percent per annum from the date when due until paid. All payments upon account shall be applied first to interest and then the assessment payment first due. All interest collected shall be credited to the Common Expense Account.
(b) Suit. The Association at its option may enforce collection of delinquent assessments by suit at law or by foreclosure of the liens securing the assessments or by any other competent proceedings and in either event, the Association shall be entitled to recover in the same action, suit or proceedings the payments which are delinquent at the time of judgment or decree together with interest thereon at the rate of ten (10%) percent per annum and all costs incident to the collection and the action, suit or proceedings, including, without limiting the same, to reasonable attorney’s fees.

Otherwise, the opinion remains unchanged.

DOWNEY, J., and SCHWARTZ, ALAN R., Associate Judge, concur.


author: SHARP, Judge.

text:
    Rudolph J. MUCKENFUSS, Property Appraiser of Marion County, and Thomas Olson, Tax Collector of Marion County, Appellants, v. P. Randy MILLER, Executive Director, Florida Department of Revenue, and the Deltona Corporation, Appellees.
    Nos. 81-670, 81-672, 81-673 and 81-674.
    District Court of Appeal of Florida, Fifth District.
    Sept. 29, 1982.
    Rehearing Denied Nov. 5, 1982.

      C. Ray Greene, Jr., of Greene & Greene, P.A., Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Jeffrey P. Kielbasa, Asst. Atty. Gen., Tallahassee, for appellee, Dept, of Revenue.
    L. Ralph Smith, Jr., of Dearing & Smith, Tallahassee, for appellee, The Deltona Corp.
   SHARP, Judge.

The property appraiser of Marion County, and other state and county officials appeal from a final judgment entered after a non-jury trial. The lower court upheld Delto-na’s attack on the ad valorem tax assessments made on its property, known as Marion Oaks, for the four consecutive tax years commencing in 1976, and ending in 1979. These cases were consolidated for trial and for purposes of appeal.

In a lengthy, well-reasoned opinion, the trial court concluded that the county’s tax assessments for Marion Oaks were excessive and that Deltona’s appraisers at trial were basically correct. We concur in most of the lower court’s opinion accompanying the final judgments. We point out, however, that our opinion in no way limits or controls the tax appraiser’s valuation or tax appraisals in other tax years, or on other projects. See Dade County v. Richter’s Jewelry Company, Incorporated, 223 So.2d 375 (Fla. 3d DCA 1969); see generally Withers v. Metropolitan Dade County, 290 So.2d 573 (Fla. 3d DCA 1974).

The lower court determined Deltona owed an amount of tax, for each of the four years, greater than the sums it had admitted were due and had paid into the registry of the court, pursuant to section 194.171, Florida Statutes (1981). The court ruled that Deltona was entitled to an early payment discount on the tax sums paid into the court at the commencement of the suits, and it added interest at the rate of 8% per annum on the deficiencies. It also awarded $165,715.67 in costs to Deltona. Appellants challenge the court’s rejection of their method of valuation for Marion Oaks; they claim the court erred in not assessing interest on the deficiencies at 10% per annum, pursuant to section 194.192(2), Florida Statutes (1981); they question the allowance of discounts on the tax sums paid; and they argue the award of costs was arbitrary and excessive. Finding no error, we affirm, except as hereafter indicated.

The parties agreed that only the tax years 1976 and 1977 would be tried, because the issues were the same for the following two years. They also entered into the following stipulation:

[The] procedures employed by . .. [the] property appraiser of Marion County, Florida, in reaching his just value conclusion for January 1, 1976 and January 1, 1977, did not conform to the requirements of Florida law. Therefore his determination of just value as of January 1, 1976 and January 1,1977 is not entitled to any presumption of validity as would otherwise be accorded a property appraiser’s determination of value.

Therefore, in this case, the challenging taxpayer did not have to overcome the presumption of validity that is normally given by courts to the tax assessor’s valuation and assessment.

The tax appraiser in this case employed a value realization model, called the Dor-chester/Kinnard model, to appraise the Marion Oaks properties. That project consists of over 14,000 platted acres which Del-tona is developing over a period of years. By 1977 only 8% of the property had been improved with streets, utilities, and other required facilities necessary prior to building. By 1977 Deltona had sold, by unrecorded contracts for deed, more than 9,000 lots. The appellants’ appraiser determined just valuation for the project by relying on the income Deltona would receive from the contracts for deed, and an estimation of sales income for the balance of the lots projected into the distant future (to the year 2000 A.D.).

The size of the project and its modest physical development but significant sales activity created an appraisal dilemma recognized by the expert witnesses for both sides. The taxpayers’ appraiser, Mr. Charles Rex, used the more traditional cost approach method, and double checked his results by an income method appraisal which involved projecting sales, subtracting development costs, and discounting the cash flow. Rex testified the income method was too speculative to use for this project because there were too many variable factors such as interest rates and development costs, to be projected over too long a time period. Rex’s appraisal was based primarily on an estimate of the costs that Deltona had incurred for the total project each year. He said this was also the approach an experienced developer would most likely use in arriving at an estimate of the price he would be willing to pay for the balance of the project owned by Deltona.

The trial court rejected the appellants’ appraisal because it found that their appraisal method failed to take into consideration all the factors set forth in section 193.011, Florida Statutes (1981). Subsections 193.011(1), (5) and (6) require consideration of the present cash value of the land, the cost and value of improvements on it, and its actual condition. The tax assessor’s appraiser admitted that pursuant to his model, unimproved, unsold lots were given the same value as improved unsold lots. The court said:

Expert witnesses employed by the property appraiser clearly did not, in fact and in good faith, consider several of the statutory criteria, including cost of the property, present replacement value of any improvements, or condition of the property. [Cites omitted]. Most importantly, the defendants’ experts did not attempt to determine ‘the present cash value of the property,’ as defined by § 193.011(1), Fla.Stat. (1976), as being ‘the amount a willing purchaser would pay a willing seller ... in cash or the immediate equivalent thereof ... for the property.’

The appellants argue in their brief that their method of appraisal encompassed consideration of costs of future develop-

ment. However, they failed to cite to pages in the lengthy record for testimony supporting their arguments, and appellee cited testimony which supports the trial court’s findings. The trial court’s findings and conclusions come to us with a presumption of correctness, and we see no reason to overturn them. Atlantic Internal Investment Corporation v. Turner, 383 So.2d 919 (Fla. 5th DCA 1980). Failure to consider one or more of the factors set forth in section 193.011 is sufficient to invalidate an appraisal done by a tax assessor even when it is entitled to the presumption of correctness.

The trial court also rejected the tax assessor’s appraisal method because it included a present value for future improvements Deltona was obligated to make to the properties under the agreements for deed. It said:

Under their premise, land value substantially increased when Deltona promised to deliver improvements in the future. That the land had not actually been improved was of no consequence.

An appraisal which ignores the actual present condition and use of the land cannot pass just valuation muster; and to the extent it seeks to include a value for other reasons, here promised future development, it cannot stand as “just valuation.” We also think the lower court correctly rejected appellants’, appraisal because the method used ' was too speculative. It necessarily required projections of costs, interest, and other elements over too long a time period.

The trial court found that Deltona acted in good faith in challenging the tax assessments, and in estimating the amount of the tax due and calculating the deposit required by section 194.171, even though Deltona’s estimate was less than the amount of the tax later found due by the court, after trial of the case. Appellants have failed to point to any basis in the record to show error in the trial court’s findings, and no basis upon which to suggest we impose a finding of bad faith, thereby justifying an imposition of the 10% interest penalty provided under section 194.192(2), Florida Statutes (1981).

Further, we think the trial court correctly allowed the early payment discounts for the tax deposits paid when the suits were filed, and it properly credited them before calculating the interest due to the tax authorities on the deficiencies. However, in making these calculations the trial court inadvertently figured the discount allowable on the gross amount of taxes it found due. The taxpayer is only entitled to a discount based on the sums it paid into the registry of the court at the commencement of each suit: 4% of $208,-144.52 for 1976 or $8,325.78; 3% of $216,-823.52 for 1977 or 6,504.71; 4% of $233,-625.60 for 1978 or $9,345.02; and 4% of $235,227.62 for 1979 or $9,409.10. Because these calculations will change the amounts of the final judgments, we remand these proceedings for amendment of the judgments.

Finally, we affirm the trial court’s award of costs to the taxpayers pursuant to section 194.192, Florida Statutes (1981). Appellants argue that Deltona’s expert witness fee charge of $138,058.08 is so large it is excessive on its face. However, there is no record of any inappropriate expenditure, nor does the record show that excessive hours of work were billed or that an excessive hourly charge was imposed. We have no alternative in this case but to affirm the costs award. Cf. County of St. Lucie v. Browning, 358 So.2d 253 (Fla. 4th DCA 1979) (where there was a record of fees charged by other experts which could be compared with the challenged expert fee); see generally Durrance v. Sanders, 329 So.2d 26 (Fla. 1st DCA 1976) (a trial court has wide discretion in taxing costs).

The final judgments and orders supplementing them are affirmed except as herein indicated, and these proceedings are remanded for correction of the final judgment amounts consistent with this opinion.

AFFIRMED IN PART AND REMANDED.

ORFINGER, C.J., and FRANK D. UP-CHURCH, J., concur.

      . These appellants are necessary defendants in Deltona’s suit pursuant to section 194.181, Florida Statutes (1981).

      . See Straughn v. Tuck, 354 So.2d 368 (Fla. 1977); St. Joe Paper Co. v. Brown, 223 So.2d 311 (Fla. 1969); Exchange Realty Corp. v. Hills-borough County, 272 So.2d 534 (Fla. 2d DCA 1972); Calder Race Course, Inc. v. Overstreet, 363 So.2d 631 (Fla. 3d DCA 1978).

      . The Department of Revenue had not issued guidelines pursuant to sections 195.032 and 195.062(1), Florida Statutes (1981), on how property sold pursuant to an agreement for deed should be valued, although it had una-dopted one that advised the use of an appraisal method similar to the one employed by the taxpayer. Since the guidelines were not formally issued pursuant to Chapter 120, they did not create a presumption of correctness which the property appraiser would have to overcome pursuant to section 195.032, Florida Statutes (1981). See Powell v. Kelly, 223 So.2d 305 (Fla. 1969); cf. St. Joe Paper Co. v. Conrad, 333 So.2d 527 (Fla. 1st DCA 1976); Container Corp. of Am. v. Rutherford, 293 So.2d 379 (Fla. 1st DCA 1973).

      .This section lists eight factors which appraisers must consider in arriving at “just valuation” of property for tax purposes:
      (1) The present cash value of the property, which is the amount a willing purchaser would pay a willing seller, exclusive of reasonable fees and costs of purchase, in cash or the immediate equivalent thereof in a transaction at arm’s length;
      (2) The highest and best use to which the property can be expected to be put in the immediate future and the present use of the property, taking into consideration any applicable local or state land use regulation and considering any moratorium imposed by executive order, law, ordinance, regulation, resolution, or proclamation adopted by any governmental body or agency or the Governor when the moratorium prohibits or restricts the development or improvement of property as otherwise authorized by applicable law;
      (3) The location of said property;
      (4) The quantity or size of said property;
      (5) The cost of said property and the present replacement value of any improvements thereon;
      (6) The condition of said property;
      (7) The income for said property; and
      (8) The net proceeds of the sale of the property, as received by the seller, after deduction of all of the usual and reasonable fees and costs of the sale, including the costs and expenses of financing, and allowance for unconventional or atypical terms of financing arrangements. When the net proceeds of the sale of any property are utilized, directly or indirectly, in the determination of just valuation of a realty of the sold parcel or any other parcel under the provisions of this section, the property appraiser, for the purposes of such determination, shall exclude any portion of such net proceeds attributable to payments for household furnishings or other items of personal property.

      . Straughn, 354 So.2d 368; Exchange Realty Corp., 272 So.2d 534.

      . See Interlachen Lakes Estates, Inc. v. Snyder, 304 So.2d 433 (Fla.1973); Lanier v. Walt Disney World Co., 316 So.2d 59 (Fla. 4th DCA 1975).

      . Cf. Boynton v. Canal Auth., 265 So.2d 722 (Fla. 1st DCA 1972).

      . Town of Bay Harbor Island v. Lancelot Associates, 243 So.2d 437 (Fla. 3d DCA 1971).

      . City of Miami Beach v. Wilton, Ltd., 305 So.2d 83 (Fla. 3d DCA 1974).

      . § 197.012, Fla.Stat. (1981).

      . Wilton, 305 So.2d 83; Tampa Coca-Cola Bottling Co. v. Walden, 230 So.2d 52 (Fla. 2d DCA 1969).

      . Pursuant to Florida Rule of Appellate Procedure 9.110(h), we can review the cost award although the notice of appeal did not reference this order, because appellee has apparently not been prejudiced. See, e.g., Hollimon v. State, 232 So.2d 394 (Fla.1970).