author: PER CURIAM.

text:
    Timothy Charles PALMES, Appellant, v. STATE of Florida, Appellee.
    No. 52045.
    Supreme Court of Florida.
    March 5, 1981.
    Rehearing Denied May 20, 1981.

      B. Kenneth Vickers and Steven E. Rohan, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This cause is before the Court on appeal from a judgment of the Circuit Court of the Fourth Judicial Circuit, in and for Duval County. The appellant was convicted of murder in the first degree and sentenced to death. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. We affirm the conviction and sentence.

Appellant lived in an apartment with his girlfriend Jane Albert, her daughter Stephanie, and a friend, Ronald Straight. The appellant became acquainted with Ms. Albert’s employer James Stone. The evidence showed that appellant, Albert, and Straight plotted the murder and robbery of Stone.

On October 3, 1976, appellant, Straight, and Albert purchased lumber, hardware, and cement from which appellant built a box large enough to hold a man’s body. The next day Albert told her employer that a girl named Nancy was waiting for him at the apartment. She then called appellant to let him know that Stone was on his way. Appellant told Stephanie to answer the door and tell Mr. Stone that Nancy was waiting in the back bedroom. Ronald Straight waited behind the front door with a gun. After Stone entered the apartment, Straight directed him to the back bedroom where appellant was waiting. The two men then bound Stone’s hands and feet with wire and taped his mouth. They placed a garbage bag over his head and hit him with a hammer and stabbed him approximately eighteen times. This sequence of events took about a half an hour. At one point appellant had the child, Stephanie, come into the room and observe the victim lying in the burial box, mortally wounded.

The next day appellant and Straight moved their possessions, together with the box containing the body, out of the apartment and into a rental truck. They took possession of the victim’s watch, credit cards, and car. Albert took about $3100 in cash from Stone’s furniture store. They spent that night at a motel. The next day appellant and Straight drove the rental truck to the Buckman Bridge and threw the box into the St. John’s River. The appellant, Straight, Albert, and her daughter fled to California in the victim’s automobile.

Police apprehended them in California. Appellant was brought back to Florida and placed in the Duval County jail. On October 22, 1976, police officers advised him of his constitutional rights and questioned him. On October 24, 1976, the officers again advised appellant of his constitutional rights and interrogated him further. They read to him excerpts from a statement made by Jane Albert. He refused to make any statement until after he had spoken to her. Although he declined to sign a written, waiver of his rights, he did not request an attorney and he voluntarily answered questions. Afterwards he showed the police officers the place on the bridge where the body was dropped. On October 28,1976, an indictment was returned accusing appellant of murder in the first degree. On October 29, the appellant asked to see the investigating officers. After again being advised of his rights, the appellant specifically stated that he did not want to see a lawyer. He signed a waiver and made a detailed statement of his participation in the murder. The statement was recorded and signed.

At appellant’s first appearance on October 23, 1976, the judge entered an order appointing the public defender to represent him. The office of the public defender never undertook representation, however, and on October 29 requested and was granted permission to withdraw from representation on the ground of conflict of interest. Appellant never met with a representative of that office. Throughout the course of his interrogation by police, he never asked to see an attorney.

Before trial, the appellant moved to suppress evidence of his confession. He argued that the confession was inadmissible because he was questioned without benefit of counsel after being indicted. The motion was denied and appellant’s statement was admitted in evidence.

At trial the appellant testified that Albert committed the murder and that his participation was limited to assistance in disposing of the body. He said that he did not notify police because he wanted to protect her and that he confessed to the crime for the same reason. When the appellant attempted to further testify about the circumstances of his confession, the prosecuting attorney objected on the ground of lack of relevance. The court sustained the objection, reasoning that the admissibility of the confession had already been decided and was not relevant to any material issue to be decided by the jury.

At the conference on charging the jury, the appellant requested an instruction on the crime of accessory after the fact. The court declined to give the requested instruction.

The appellant raises a number of points going to the propriety of his conviction, three of which we find merit discussion. He contends that the court erred in refusing to suppress his confession, in refusing to instruct on accessory after the fact, and in refusing to allow him to tell the jury the circumstances of his confession.

I.

The appellant contends that he was denied his fifth and sixth amendment rights to due process and the assistance of counsel because his confession was obtained after indictment and in the absence of counsel. In support of this contention he cites Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) and Williams v. State, 188 So.2d 320 (Fla. 2d DCA 1966) cert. discharged, 198 So.2d 21 (Fla.1967). Massiah v. United States concerned a defendant who, after being indicted, retaining a lawyer, pleading not guilty, and being released on bail, made incriminating statements to one of his codefendants which were detected by means of a radio transmitter. The Court held the statements inadmissible under the sixth amendment guaranty of the right to assistance of counsel. Williams v. State was a case where the investigating officer,

knowing that the defendant ... had been in jail for three weeks .. . that he had already been indicted for first degree murder, and that he had a lawyer and who his lawyer was, took the defendant out of his jail cell and transported him to a small room ... in which room there was only a desk and three chairs. They went inside, closed the door, sat down....

188 So.2d at 326. There the officers elicited an incriminating statement.

These cases do not control the situation at bar. In the instant case the defendant had already been indicted but was not yet represented by counsel. He was repeatedly advised of his right to consult with counsel and to have counsel present during questioning. The formal appointment of the public defender at first appearance did not initiate legal representation since nothing was done toward actually providing legal counsel. The interview at which appellant made the recorded confession took place at his own request. He made no request to speak to an attorney and executed a written waiver of counsel. The right to counsel during questioning can be waived. Witt v. State, 342 So.2d 497 (Fla.), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 774 (1977). Investigating officers are not required to try to convince a defendant that he needs an attorney. State v. Craig, 237 So.2d 737 (Fla.1970). We therefore hold that the court properly admitted the confession into evidence.

II.

The appellant contends that the court erred in not instructing the jury on the crime of accessory after the fact because his defense was that his only participation in the crime was in helping his girlfriend dispose of the body.

It is axiomatic that a defendant is entitled to a jury instruction on the theory of his defense. Florida courts have reversed convictions where juries were not instructed about the defenses of alibi, Davis v. State, 254 So.2d 221 (Fla. 3d DCA 1971); Watson v. State, 200 So.2d 270 (Fla. 2d DCA 1967); coercion, Koontz v. State, 204 So.2d 224 (Fla. 2d DCA 1967), entrapment, Kwasniewski v. State, 303 So.2d 373 (Fla. 1st DCA 1974); Stiglitz v. State, 270 So.2d 410 (Fla. 4th DCA 1972), justifiable homicide, Stinson v. State, 245 So.2d 688 (Fla. 1st DCA 1971); Whitehead v. State, 245 So.2d 94 (Fla. 2d DCA 1971), and withdrawal, Laythe v. State, 330 So.2d 113 (Fla. 3d DCA), cert. denied, 339 So.2d 1172 (Fla.1976). All these defenses concern either the defendants’ innocence or their legal excuse in committing a crime. None of them entail the commission of a crime other than the one charged in the indictment.

That a person committed a crime other than the one he is charged with is not a legal defense requiring a jury instruction. Furthermore, the crime of accessory after the fact is not a lesser included offense of the crime of premeditated murder. Cf. Newkirk v. State, 222 So.2d 435 (Fla. 3d DCA 1969) (accessory after the fact is a separate offense, not a lesser included offense of robbery). Therefore, the defendant was not entitled to an instruction on accessory after the fact as a lesser included offense. See State v. Anderson, 270 So.2d 353 (Fla.1972); Brown v. State, 206 So.2d 377 (Fla.1968). If the jury had been instructed about accessory after the fact, a conviction on that charge would not be valid since it would not be supported by the facts alleged in the indictment. Newkirk v. State, 222 So.2d 435 (Fla. 3d DCA 1969). Since the jury could not legally convict the defendant of accessory after the fact, no purpose would be served by requiring that they be instructed on the charge. Therefore, the court did not err in refusing to instruct the jury about accessory after the fact either as a defense or as a lesser included offense.

III.

Finally, appellant argues that the trial court erred in sustaining the state’s objection to the attempt by defense counsel to elicit from appellant testimony concerning the circumstances of his confession. He contends that by this ruling, the court kept from the jury evidence bearing on the weight to be given to the confession. The trial judge reasoned that this issue was closed once the court determined the confession was voluntary and therefore admissible. We agree that the court erred in this regard, but we conclude that the error does not require reversal.

The question of the admissibility in evidence of an extra-judicial confession is for the court to decide, based on all the circumstances of the confession. See, e. g., Brewer v. State, 386 So.2d 232 (Fla.1980); Frazier v. State, 107 So.2d 16 (Fla.1958); Coffee v. State, 25 Fla. 501, 6 So. 493 (1889); Simon v. State, 5 Fla. 285 (1853). Once a confession is admitted into evidence, however, the defendant is entitled to present to the jury evidence pertaining to the circumstances under which the confession was made. The reason for this rule is that it is the jury’s function to determine the weight to be accorded the confession in determining guilt. See, e. g., State v. Oyarzo, 274 So.2d 519 (Fla.1973); Graham v. State, 91 So.2d 662 (Fla.1956); Williams v. State, 156 Fla. 300, 22 So.2d 821 (1945); Nickels v. State, 90 Fla. 659, 106 So. 479 (1925); Bates v. State, 78 Fla. 672, 84 So. 373 (1919); Sims v. State, 59 Fla. 38, 52 So. 198 (1910); Bunn v. State, 363 So.2d 16 (Fla. 3d DCA 1978), cert. denied, 368 So.2d 1373 (Fla.1979); Williams v. State, 353 So.2d 588 (Fla. 2d DCA 1978), cert. dismissed, 372 So.2d 64 (Fla.1979). It is conceivable that a confession, freely and voluntarily given and therefore admissible, may be untrue. Therefore the defendant must be allowed to tell the jury why he made it.

It has been said that the application of this rule requires that the evidence presented to show the voluntary nature of the confession must be presented anew for the jury’s consideration. See, e. g., State v. Oyarzo, 274 So.2d 519 (Fla.1973); Bates v. State, 78 Fla. 672, 84 So. 373 (1919). Thus it might be suggested that because appellant did not testify at the pretrial hearing on the admissibility of the confession, he was precluded from giving his personal account of the circumstances for the jury. The functions of the judge and jury, however, are different. It is not the function of the jury to reconsider whether the confession was voluntary. See, e. g., Kirby v. State, 44 Fla. 81, 32 So. 836 (1902). At trial, appellant wanted to testify about his state of mind. In the absence of evidence of threats, promises, or the like, this testimony about state of mind would have been irrelevant at the pretrial hearing. Barton v. State, 193 So.2d 618 (Fla. 2d DCA 1966), cert. denied, 201 So.2d 459 (Fla.1967). This is because the inquiry at the pretrial hearing on the admissibility of a confession is primarily the question of voluntariness; later, before the jury, the question is what weight to give the confession in determining guilt. The defendant’s state of mind is relevant to this latter inquiry. Reddish v. State, 167 So.2d 858 (Fla.1964); Cullaro v. State, 97 So.2d 40 (Fla. 2d DCA 1957). Therefore the trial court erred in sustaining the objection.

That the trial court’s ruling was in error does not necessarily require reversal of the judgment. A judgment will not be reversed unless the error was prejudicial to the substantial rights of the appellant. Padgett v. State, 84 Fla. 590, 94 So. 865 (1922); Kirby v. State, 44 Fla. 81, 32 So. 836 (1902). This long standing decisional rule has also been enacted as a statute. § 924.-33, Fla.Stat. (1977). Although, in a capital case, this Court will carefully scrutinize any error before determining it to be harmless, Pait v. State, 112 So.2d 380 (Fla.1959), it will not presume that there was prejudice. Salvatore v. State, 366 So.2d 745 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1975).

In determining whether an erroneous ruling below caused harm to the substantial rights of the defendant, an appellate court considers all the relevant circumstances, including any curative ruling or event and the general weight and quality of the evidence. In other words, the court inquires generally whether, but for the erroneous ruling, it is likely that the result below would have been different. See, e. g., Campbell v. State, 221 So.2d 873 (Fla.1969), cert. dismissed, 401 U.S. 801, 91 S.Ct. 7, 27 L.Ed.2d 33 (1970). State v. Wadsworth, 210 So.2d 4 (Fla.1968).

When the error affects a constitutional right of the defendant, the reviewing court may not find it harmless “if there is a reasonable possibility that the error may have contributed to the accused’s conviction or if the error may not be found harmless beyond a reasonable doubt.” Nowlin v. State, 346 So.2d 1020, 1024 (Fla.1977). Even such “constitutional error,” however, may be treated as harmless where the evidence of guilt is overwhelming. Jones v. State, 332 So.2d 615, 619 (Fla.1976).

While it is error not to receive in evidence “all the circumstances attending an extrajudicial confession ... that the court may determine its admissibility and the jury consider its value,” the error is harmless where substantially the same matters are presented to the jury through testimony of the same or some other witness. Denmark v. State, 95 Fla. 757, 761, 116 So. 757, 759 (1928); Baker v. State, 30 Fla. 41, 11 So. 492 (1892), overruled in part, Tipton v. State, 97 So.2d 277 (Fla.1957).

At trial appellant testified that he went to the apartment he shared with Jane Albert on the afternoon of Monday, October 4, 1976 and in a bedroom found the body of James Stone. As he entered the room, he saw Jane Albert putting a knife down on a table. He said he proceeded to clean up the room, put the body in the box he had built for toys, and later removed it from the apartment and dropped it in the river. He said he assisted in covering up the evidence of the crime in order to protect Albert from prosecution and that he later confessed to the crime for the same reason.

Appellant’s attorney then turned to the events leading up to his confession. After his arrest in California, he was questioned there by Jacksonville police officers. He testified that he did not tell them anything, but only “asked them how Jane and Stephanie were.” He also asked where they were, and learned that they also were being questioned. Later he consented to being returned to Florida after he learned that Albert had returned there. He testified: “I just wanted to be close to her.”

Appellant returned to Florida in custody on Friday, October 22. On the following Sunday, he testified, he was questioned for eleven or twelve hours. That night the detectives read him a statement they said Albert had made. He told the jury that he could not believe she had made the statement and he wanted to hear it from her. After several hours of questioning, he said, they allowed him to listen to her on a one-way telephone; he was not able to talk back to her on this telephone. After hearing her statement, he agreed to show them where the box had been dropped in the river.

Q Why did you agree to take them out to the bridge at that point?
A Because I decided to plead guilty.
Q Why?
A Because I didn’t want to live. I was—
Q All right.
A I was — unless you lived my life you wouldn’t understand.
Q Did you take them out to the bridge?
A Yes, sir.
Q You showed them, didn’t you?
A I showed them approximately where I figured it was, about where the truck stopped when we dumped the box.
Q Why didn’t you talk to Officer or Sergeant Miles before the following Friday?
A I was just going to plead guilty, and then on Thursday I saw a thing on the news with Mr. Greene and a lady reporter and they were asking—
Q Don’t say what they said.
A Anyway, it was about what they were going to do with Jane. It led me to believe that they hadn’t given her immunity.
Q That they hadn’t or they had?
A That they hadn’t given her immunity. I had already decided — as a matter of fact, I tried to plead guilty the first day they took me to court and — but I had already decided to plead guilty, but when this news report came on I was still in doubt whether or not Jane was going to get immunity or not and I called Sergeant Miles.
Q You say you called. You called him direct?
A Well, I talked to the chaplain first. The chaplain said he was too busy. I got a guard at the jail. A guard is actually the one that called him. This guard got him to come over to the jail and he came over to the jail and he says, “Well,—
Q All right, sir. Who had you seen that week?
A No one except Sergeant Miles and Detective Starling.
Q Had you talked to anyone on the phone?
A I had talked to my mother two or three times, except they came up with — the phone doesn’t come around to the cell for two or three days. They said the phone line was out of order on that side of the floor. So, there was two or three days I didn’t talk to anyone. Besides that, no one — I put in for to get a lawyer when I first got into town. They took me to a bond hearing on Saturday, the 22nd. I had signed a piece of paper asking for a lawyer, but I never got a lawyer. Nobody ever came to me.
Q You never talked to a lawyer?
A No one ever came over to the jail from the Public Defender’s Office or anyplace.

Trial transcript at 808-10.

The state’s lawyer objected to any further questioning pertaining to whether appellant was represented by counsel or had asked for counsel during the interrogation that culminated in his confession. The prosecutor argued that any evidence going to the question of whether his confession was voluntary was irrelevant. Defense counsel argued that the line of questioning that he wished to follow was intended to elicit testimony going to appellant’s state of mind at the time. The court ruled that there could be no further testimony of the circumstances surrounding interrogation. Then, appellant testified as follows:

Q Mr. Palmes, do you recall giving a statement on the 28th—
A Yes, sir.
Q —of October?
A Yes, sir.
Q Now, what you have told the Court today is different from that.
Can you tell us why you gave that statement at that time?
A To clear Jane so that nothing would happen to her. I was under the impression that she hadn’t been given immunity at that time.
Q Why are you telling the story differently now?
A Because nothing can happen to her from what I understand; she has been given immunity and they can’t prosecute her. If she hadn’t been given immunity I wouldn’t be here right now.

Trial transcript at 818.

Even though the court improperly sustained the objection, the defense was still able to present to the jury a substantial account of the operation of circumstances on appellant’s state of mind at the time of his confession. This is an important factor in the determination of whether the error was harmless. Furthermore, the evidence of guilt was overwhelming and it is highly unlikely that a more complete account of the circumstances of the confession would have changed the jury’s evaluation of the question of guilt. We hold, therefore, that the error was harmless.

The Court has given careful consideration to appellant’s other contentions pertaining to the judgment of conviction and finds them to be without merit. The verdict of the jury was supported by competent, substantial evidence and therefore we hold that the evidence is sufficient to support the judgment of conviction. We affirm the conviction.

IV.

We now come to the question of the propriety of the sentence of death. There was no jury recommendation because appellant waived his right to have the jury hear evidence on the question of sentence. One who has been convicted of a capital crime and faces sentencing may waive his right to a jury recommendation, provided the waiver is voluntary and intelligent. Upon finding such a waiver, the sentencing court may in its discretion hold a sentencing hearing before a jury and receive a recommendation, or may dispense with that procedure. State v. Carr, 336 So.2d 358 (Fla.1976); Lamadline v. State, 303 So.2d 17 (Fla.1974). The record shows that the court inquired into appellant’s waiver and found it to be intelligent and voluntary.

Appellant contends that the record shows that the judge did not consider the evidence offered in mitigation. After adjudicating appellant guilty, the court set a time for the sentencing hearing and meanwhile ordered a presentence investigation. At the sentencing hearing, after hearing all the evidence and argument, the judge stated her findings, which she read from a pre-prepared order. Appellant argues this shows no consideration was given to his evidence and argument offered at that hearing. The fact that the judge recited findings from an order prepared before the final sentencing hearing does not compel the conclusion that she did not give the required consideration to the evidence presented by the defense. All of the court’s findings of aggravating circumstances were based on evidence that was adduced at the trial proper. Thus there was nothing wrong with her having these findings and considerations in mind at the start of the sentencing hearing. The fact that the pre-prepared order found that there were no mitigating circumstances does not show that the judge did not consider the evidence and argument offered in mitigation. The recitation and filing of the sentencing findings merely indicate that the court concluded that nothing presented by the defense at the hearing required her to add to or change her pre-prepared findings.

A copy of the pre-sentence investigation report was provided to counsel for both parties before the sentencing hearing.

The judge found four aggravating circumstances. She found that appellant was previously convicted of a felony involving violence, section 921.141(5)(b), Florida Statutes (1977), that the murder of James Stone' was committed “while the defendant was engaged ... in the commission of” the felony of robbery, id. § 921.141(5)(d), that the murder was committed for pecuniary gain, id. § 921.141(5)(f), and that the murder was heinous, atrocious, and cruel. Id. § 921.-141(5)(h).

The finding that appellant was previously convicted of a felony involving violence to the person was based upon a conviction for manslaughter. The previous conviction was rendered pursuant to a plea of guilty to manslaughter in a prosecution initiated by an indictment charging first-degree murder. We therefore hold that the previous conviction supported the finding of this factor.

Under the circumstances of this case, the factor of commission in connection with a robbery and the factor of pecuniary gain are both based on the same aspect of the crime. Therefore, only one aggravating circumstance was established by these considerations. Provence v. State, 337 So.2d 783 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977). The improper double recitation of the factor, however, was harmless error. The judge found that there were no mitigating circumstances, and on this review we approve her finding. Therefore it is beyond doubt that the weighing process was not affected injuriously to the appellant. For this reason the error does not require resentencing. Hargrave v. State, 366 So.2d 1 (Fla.1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979).

The finding that the murder was especially heinous, atrocious, and cruel, under the Court’s previous constructions of this statutory factor, was amply supported by the evidence. See, e. g., Washington v. State, 362 So.2d 658 (Fla.1978), cert. denied, 441 U.S. 937, 99 S.Ct. 2063, 60 L.Ed.2d 666 (1979); Funchess v. State, 341 So.2d 762 (Fla.1975), cert. denied, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158 (1977).

The evidence was sufficient and there was no reversible error. Therefore we affirm the conviction of first-degree murder. There were three aggravating circumstances, supported by the evidence, and no mitigating circumstances. Therefore we also affirm the sentence of death.

It is so ordered.

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

SUNDBERG, C. J., concurs in result only.

      . In sustaining the prosecutor’s objection, the judge stated:
      Mr. Greene [the prosecutor] has objected to the line of testimony that was being given, we had argument before the bench, the court has had an opportunity to reflect on it, and the Court is going to sustain the objection in view of the fact that we had an evidentiary hearing on the motion to suppress and this is in substance the same material that was covered at that time at that hearing.
      Trial transcript at 817.


source: Caselaw Access Project

author: McDonald, justice.

license: Public Domain

text:
    Andrew SANDEGREN et al., Appellants, v. STATE of Florida ex rel. SARASOTA COUNTY PUBLIC HOSPITAL BOARD, Appellee.
    No. 58868.
    Supreme Court of Florida.
    March 12, 1981.
    Rehearing Denied May 20, 1981.

      Richard E. Nelson and Robert C. Widman of Nelson, Hesse, Cyril, Weber, Smith & Widman, Sarasota, for appellants.
    William T. Harrison, Jr., A. Lamar Matthews, Jr. and J. Michael Hartenstine of Williams, Parker, Harrison, Dietz & Getzen, Sarasota, for appellee.
    William J. Roberts of Roberts & Egan, Tallahassee, for State Ass’n of County Commissioners, amicus curiae.
   McDonald, justice.

This appeal is from the issuance of a writ of mandamus by the Twelfth Judicial Circuit Court, Sarasota County. The Second District Court of Appeal transferred the case to this Court because the circuit court expressly upheld the constitutionality of chapter 394, Florida Statutes (1977). We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. (1972).

Acting under chapter 394, the Baker Act, the West Coast Mental Health Board (board) contracted with the Sarasota Guidance Clinic, Inc. (clinic), to provide mental health services to Sarasota County. Unable to perform the services directly, the clinic subcontracted with the relator, Sarasota County Public Hospital (hospital), for that institution to treat Baker Act patients.

As part of its comprehensive mental health plan, chapter 394 requires that local governments match state funds for community mental health services on a three to one basis. Because Sarasota County never provided any funding for the program, the hospital sought a writ of mandamus against Sarasota County (county), the board, and the clinic, asking for payment of the county’s twenty-five-percent share of costs for services rendered by the hospital, under its contract, from July 1,1976 through May 16, 1978. At trial the court upheld the constitutionality of chapter 394, found that the county had a clear legal duty to match state funds, and ordered the county to pay $182,-994.47 directly to the hospital.

Because the case is before us on the constitutional validity of chapter 394 of the Florida Statutes generally, and section 394.-76(9) particularly, we address that issue first.

Appellants claim that chapter 394 unconstitutionally delegates legislative power and infringes on the power of local taxing authorities. As this Court has previously stated,

the Legislature may delegate to authorized officials and agencies the authority to promulgate subordinate rules within prescribed limits and'to determine facts to which the established policies of the Legislature are to apply. What the Legislature may not delegate is the power to enact laws or to declare what the law shall be or to exercise unrestricted discretion in applying the law.

Florida Welding and Erection Service, Inc. v. American Mutual Insurance Co., 285 So.2d 386, 388 (Fla.1973) (footnotes omitted). Chapter 394 gives the Department of Health and Rehabilitative Services rule-making power and assigns numerous responsibilities to that agency and to the various district mental health boards. The chapter also enumerates guidelines with which those agencies must comply. See §§ 394.457, 394.459, 394.463, 394.75, 394.76, Fla.Stat. (1977). Appellants have shown no improper delegation either on the face of the statute or as applied to them.

Appellants, likewise, have not shown that the legislature has improperly infringed on local taxing power. Chapter 394 sets out a plan by which comprehensive mental health services are provided on a local basis. Under this chapter, the various local governments are benefitted by having the mental health needs of their residents attended to. There is nothing in the state constitution which prohibits the legislature from enacting laws requiring the expenditure of local funds to support programs to the extent that such programs serve a local purpose. See Board of Public Instruction v. State Treasurer, 231 So.2d 1 (Fla.1970).

Section 394.76(9), Florida Statutes, (1977), provides that:

State funds for community mental health services shall be matched by local matching funds on a three to one basis respectively. Governing bodies within a district or subdistrict shall be required to participate in the funding of mental health services under the jurisdiction of said governing body. The amount of the participation shall be at least that amount which, when added to other available local matching funds, is necessary to match state funds.

(emphasis supplied). “Governing body” is defined as the “chief legislative body of a county” or “a board of county commissioners.” § 394.67(2), Fla.Stat. (1977). The legislature has decided, therefore, that local governments must bear a share of the cost of mental health services. Although local governing bodies are given the right to review, comment on, and approve plans drawn up by district mental health boards, this does not give them the right to refuse to fund mental health programs as required by chapter 394. The judgment of a local governing body as to the necessity for such programs is not material when the legislature has declared that those programs are necessary and that a share of the costs should be locally funded. See Board of Com’rs v. Board of Pilot Com’rs, 52 Fla. 197, 42 So. 697 (1906). In enacting sections 394.-453 and 394.66(1) and (5), Florida Statutes (1977), the legislature declared a necessity for mental health services and its intent that local governments participate in the financial responsibility for such services. The funding of local programs, therefore, has been made a ministerial, rather than a discretionary, act and is enforceable through mandamus. Mandamus will lie to compel performance of a clear legal duty. State ex rel. Buckwalter v. City of Lakeland, 112 Fla. 200, 150 So. 508 (1933). In our opinion, Sarasota County has a clear legal duty to fulfill the obligation imposed by this statute.

We next turn our attention to the issue of whether the judgment of mandamus should be vacated because the procedure set forth in rule 1.440, Florida Rules of Civil Procedure, for setting trials was not followed. There was no order setting this case for trial. The notice of trial consisted of a letter from relator’s attorney to appellants’ counsel advising that the trial judge had set a certain day aside for trial. After complaining of the scheduled trial date, appellants filed a motion for continuance which was denied. In that motion there was no complaint that the trial judge had not followed rule 1.440. When the judge denied the continuance, he indicated that he would grant appellants additional time during the trial, if it were needed. Appellants did not request more time during or after the trial.

In this particular case we do not disturb the judgment because it was evident that a trial would commence unless the motion for continuance were granted and because the appellants were afforded additional time to conclude the case if requested. At the same time we wish to announce that we expect the courts of this state to strictly follow rule 1.440 when setting cases for trial.

The appellants contend it was error to deny the continuance. A motion for a continuance is addressed to the sound discretion of the trial court. In re Gregory, 313 So.2d 735 (Fla.1975); State v. Florida State Turnpike Authority, 134 So.2d 12 (Fla.1961); Hall v. Florida State Drainage Land Co., 89 Fla. 312, 103 So. 828 (1925). See 30 Fla.Stat.Ann. 510 (1967), Comment rule 1.460. A trial court’s decision regarding a continuance will not be reversed “unless there has been a palpable abuse of such discretion . .. clearly and affirmatively shown by the transcript of the record.” 89 Fla. at 316, 103 So. at 830. No such abuse has been shown in the instant case.

We also find that the court properly admitted into evidence the exhibit about which appellants complain. This exhibit is a sixteen-column compilation of dates, total charges, and payments from various sources for over one thousand Baker Act patients treated by the hospital during the pertinent time. The hospital’s business office director admitted that the chart was completed shortly before trial. Appellants claim that the exhibit is hearsay for which no exception to the hearsay rule exists. We disagree.

Section 92.36(2), Florida Statutes (1977), in effect at the time of this trial, provides that business records may be admitted if: (1) the custodian testifies as to their identity and mode of preparation; (2) they were made in the regular course of business, near the time of occurrence; and (3) in the court’s opinion, the sources of information, time, and method of preparation justify admission. The hospital’s business director, as custodian of the hospital’s records, testified that the underlying data upon which the questioned exhibit was based was prepared and kept in the regular course of business. By admitting the exhibit, the trial judge impliedly found the records from which the exhibit was compiled to be otherwise admissible. The hospital’s business records, themselves, therefore, could have been admitted under section 92.36.

As stated before, however, these records pertained to more than a thousand patients. When voluminous documents are involved it is proper, indeed it is sometimes necessary for the smooth running of a trial, that other evidence be allowed by the testimony of a competent witness who can sum up the total mass. 4 J. Wigmore, Evidence § 1230 (Chadbourne rev. 1972). The courts of this state have adopted this rule of convenience. See Scott v. Caldwell, 160 Fla. 861, 37 So.2d 85 (1948); Perma Spray Manufacturing Co. v. La France Industries, Inc., 161 So.2d 13 (Fla.3d DCA 1964), cert. denied, 168 So.2d 147 (Fla.1964). In deciding to admit the challenged exhibit, the court stated that the exhibit would be accepted because “otherwise we’ll be here several years sorting it all out and getting the same result.” Because the records, themselves, would have been admissible, and because those records were so voluminous, we hold that the trial court, in its discretion, properly admitted the exhibit into evidence.

The final judgment of the trial court is affirmed.

It is so ordered.

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

ADKINS, J., dissents.

      . § 394.75(l)(b), Fla.Stat. (1977).

      . Rule 1.440, Setting Case for Trial, reads as follows:
      (a) When at Issue. An action is at issue after any motions directed to the last pleading served have been disposed of or, if no such motions are served, 20 days after service of the last pleading. The party entitled to serve motions directed to the last pleading may waive the right to do so by filing a notice for trial at any time after the last pleading is served.
      (b) Notice for Trial. Thereafter any party may file and serve a notice that the action is at issue and ready to be set for trial. The notice shall include an estimate of the time required and whether it is to be tried by a jury or not. The clerk shall then submit the notice and the case file to the court.
      (c) Setting for Trial. If the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial. Trial shall be set not less than thirty days from the service of the notice specified in subdivision (b). By giving the same notice, the court may set an action for trial on its own motion. In law actions in which the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default in accordance with Rule 1.080(a).

        (d)Applicability. This rule does not apply to actions to which Chapter 51, Florida Statutes 1967 applies.

      . When moving for continuance, defense argued a motion to raise additional defenses and a motion to state a counterclaim. The denial of those motions is not challenged here.

      . The hospital’s contract with the clinic required billing within 10 days after rendering service. Charges, therefore, had to be recorded at or near time of rendition.

      . Perma Spray contains some language which might be interpreted as requiring the presence of the basic records in court. Such is not required, however, when both parties have had access to those records prior to trial. In the instant case, defense filed numerous requests for production, one of which resulted in a protective order to preserve the confidentiality of patient records as required by §§ 458.16 and 395.202(1), Fla.Stat. (1977). The instant record shows, however, that the hospital provided access to all parts of the records pertinent to this case.


author: PER CURIAM. ALDERMAN, Justice,

text:
    THE FLORIDA BAR, Complainant, v. David P. WEINBERGER, Respondent.
    No. 59191.
    Supreme Court of Florida.
    March 19, 1981.
    Rehearing Denied May 22, 1981.
    Paul A. Gross, Co-Bar Counsel, Miami, Scott K. Tozian, Co-Bar Counsel, Tampa, Stanley A. Spring, Staff Counsel and John A. Boggs, Asst. Staff Counsel, Tallahassee, for complainant.
    M. Minnette Massey, Coral Gables, for respondent.
   PER CURIAM.

This is a bar disciplinary action in which David P. Weinberger petitions for review of a referee’s report recommending a one-year suspension of Weinberger for violation of DR 1-102(A)(6) and DR 7 — 106(C)(6), Code of Professional Responsibility.

Weinberger, newly admitted to practice law, represented himself in two civil suits arising from termination of his employment by the Florida Department of Commerce. After suffering adverse rulings in those cases, he filed various pleadings and made public statements denigrating the courts and the administration of justice. No useful purpose would be served in repeating those remarks, but they can be described as multiple irresponsible and intemperate attacks on the judiciary, Weinberger himself concluded that “I ought to consider myself rather fortunate that I didn’t get cited for contempt.”

Besides finding Weinberger guilty of professional misconduct, the referee perceived an extremely intemperate personality. Because of Weinberger’s acts of misconduct and his present psychological makeup the referee recommended a one-year suspension.

Weinberger’s conduct cannot be condoned, and he is soundly reprimanded for it. At the same time we do not feel that a one-year suspension is proper in this case. Since these incidents occurred, he has retained competent responsible counsel. His counsel has reported to this Court her disfavor with her client’s actions and has so advised her client. Weinberger has apologized to two judges involved and has offered to take further action to exhibit his remorse and his subsequently learned appreciation that his actions did not comport with the standards we expect of counsel.

We publicly reprimand David P. Weinber-ger for his actions with the admonition that any such conduct on his part in the future will be dealt with sternly. Costs in the amount of $2,007.96 are assessed against the respondent.

It is so ordered.

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

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

ALDERMAN, Justice,

concurring in part, dissenting in part.

I agree that Weinberger has violated the Code of Professional Responsibility, but I would go beyond the public reprimand imposed by the Court and, as recommended by The Florida Bar, suspend him from the practice of law for ninety-one days and require proof of rehabilitation and a psychological evaluation before reinstatement.

The referee, in his report, finds:

The testimony beginning at TR 198 when the Respondent became the Referee’s witness is most significant because the court hears from Respondent directly about himself. At TR 222 Respondent stated his regrets and apology. He seems to agree that he should not have done what he did and ought not to do so again. Nevertheless, he is without contrition; for he persists in regarding the proper limits of his behavior as those applying to a non-lawyer. After the trial, he wrote two formal letters of apology to the United States District Judges who were involved in the matter. (R 80 and 81). Despite these letters and his apology, it is apparent that Respondent would continue his crusade against the judicial system in the same manner as he is alleged to have acted previously.
Respondent is not on trial for what he thinks he believes, but rather for what he acts out. It is interesting, if not necessarily material, to examine the type of person he is according to the testimony of his witnesses, Dr. Jess Spirer, a clinical psychologist, and the written report from a psychiatrist, Dr. Steinbook, dated June 18, 1979. Dr. Steinbook’s report was addressed to Michael S. Hoffman, Esq., Respondent’s then attorney who has withdrawn from the case because of irreconcilable differences with Respondent. The following words according to the trial transcript may be used to describe Respondent: argumentative, obstinate, persistent, litigious, demanding, determined, harassed, harrassing of others, feeling persecuted, unhappy, lacking in social judgment, a rebel, a reformer, a radical, idealistic, obsessive-compulsive personality with paranoid features, rigid, hypersensitive, excessively self-important, inflexible, intemperate, and unable to maintain satisfactory interpersonal relationships.

From my review of the record, I conclude that Weinberger, at the time he committed the acts of misconduct and also at the time of the referee’s hearing, either did not understand or was unwilling to accept the principles that more is expected of a lawyer than is expected of a layman and that any conduct of a lawyer which brings into scorn and disrepute the administration of justice demands condemnation and the application of appropriate penalties. The Florida Bar in re Shimek, 284 So.2d 686 (Fla.1973); State ex rel. The Florida Bar v. Calhoon, 102 So.2d 604 (Fla.1958).

In light of the totality of circumstances in this case, I believe the ninety-one-day suspension recommended by The Florida Bar is an appropriate penalty because it would fairly punish Weinberger for his misconduct, would encourage his rehabilitation, and is severe enough to deter others from similar misconduct. The Florida Bar v. Saphirstein, 376 So.2d 7 (Fla.1979).

      . DR 1-102(A) A lawyer shall not:
      * * * * * *
      (6) Engage in any other conduct that adversely reflects on his fitness to practice law.
      DR 7-106(C) In appearing in his professional capacity before a tribunal, a lawyer shall not:
      * * * * * *
      (6) Engage in undignified or discourteous conduct which is degrading to a tribunal.

      . There is ample competent evidence to support these findings.


author: OVERTON, Justice.

text:
    STATE of Florida, Petitioner, v. John Thomas WILLIAMS, Respondent.
    No. 59451.
    Supreme Court of Florida.
    April 9, 1981.

      Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, for petitioner.
    Hugh A. Carithers, Jr., of Sheppard & Carithers, Jacksonville, for respondent.
   OVERTON, Justice.

The First District Court of Appeal has certified for our review the following question as one of great public importance:

Does the retention of jurisdiction by a trial judge and denial of release through gain time pursuant to § 947.16, Florida Statutes (Supp.1978), constitute an ex post facto application of the law when the crimes were committed prior to the statute’s effective date?

Williams v. State, 383 So.2d 722 (Fla. 1st DCA 1980). We have jurisdiction, article V, section 3(b)(4), and find that the recent United States Supreme Court decision in Weaver v. Graham, - U.S. -, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), requires an affirmative answer.

The present facts are undisputed. In a joint jury trial with two codefendants, respondent John Thomas Williams was convicted of two counts of attempted second-degree murder, attempted kidnapping, conspiracy to commit armed robbery, conspiracy to commit kidnapping, and possession of a weapon by a convicted felon. The trial court sentenced Williams to a total of 150 consecutive years in state prison and, pursuant to section 947.16, Florida Statutes (Supp.1978), retained jurisdiction for the first one-third of Williams’ sentence. The applicable portion of section 947.16 was enacted after the commission of the offense for which Williams was convicted but before his actual trial, and provides that if a defendant is convicted of certain enumerated, severe crimes, the trial court may retain jurisdiction for the first one-third of the maximum sentence imposed. This in effect imposes an additional requirement before a prisoner can be paroled: he must obtain the approval of both the parole commission and the trial court, as compared to just the commission’s approval as it was under the prior law. Section 947.16 also provides that if a trial court retains jurisdiction, the defendant may not be released due to gain time during the first one-third of his sentence, although gain time continues to accrue.

On appeal, Williams asserted that the trial court’s retention of jurisdiction under section 947.16 constituted an ex post facto application of the statute, because both the trial court’s veto power over parole and the denial of release pursuant to gain time in effect enhanced his sentence. The district court agreed, finding that “by applying a statute which did not exist at the time of the offense, the [trial] judge in effect extended appellant’s jail time.” 383 So.2d at 725. Accord, Rodriquez v. State, 380 So.2d 1123 (Fla. 2d DCA 1980) (same holding).

We find that the most recent decision of the United States Supreme Court in Weaver v. Graham, - U.S. -, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), controls the issue and mandates an affirmance. In Weaver, a prisoner had petitioned this Court for habeas corpus relief claiming that a statute which altered the method of prisoner gain-time computation and which was enacted subsequent to the crime for which the prisoner was incarcerated, affected him detrimentally and was therefore an ex post facto law. This Court summarily denied relief, Weaver v. Graham, 376 So.2d 855 (Fla.1979), on the basis of Harris v. Wainwright, 376 So.2d 855 (Fla.1979), a decision issued on the same day. In Harris, the Court upheld the constitutional validity of the newly enacted gain-time statute, as applied to prisoners incarcerated for crimes committed prior to the statute’s enactment, reasoning that “gain time allowance is an act of [legislative] grace rather than a vested right and may be withdrawn modified, or denied.” Id. at 856.

The United States Supreme Court unanimously reversed, holding that the statute was indeed violative of the federal constitutional prohibition against ex post facto laws. The Supreme Court set forth a two-fold test: (1) does the law attach legal consequences to crimes committed before the law took effect, and (2) does the law affect the prisoners who committed those crimes in a disadvantageous fashion? If the answer to both questions is yes, then the law constitutes an ex post facto law and is void as applied to those prisoners.

Under the facts of the instant case, we find that both prongs of the Weaver test are met. First, section 947.16 attaches the legal consequences of the trial court’s parole veto and no gain-time release to those who committed crimes before the provision’s effective date. Second, these consequences have a disadvantageous effect in that the prisoners’ sentences are enhanced.

We note that for many years prior to section 947.16’s enactment, the Parole and Probation Commission informally gave notice to the sentencing judge of a prisoner’s parole date and sought the judge’s comments. Our decision today should in no manner restrict the commission from seeking information or advice from any source concerning a prisoner’s parole.

The district court’s affirmative answer to the certified question is approved. We remand to the district court for entry of that court’s mandate.

It is so ordered.

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


author: SUNDBERG, Chief Justice.

text:
    Scott McPHERSON, Petitioner, v. Bill FLYNN, Respondent.
    No. 60435.
    Supreme Court of Florida.
    April 14, 1981.

      Gregory F. Esposito, Jr. of Koppen & Watkins, Miami, for petitioner.
    Donald D. Slesnick, II and Joel V. Lumer, Miami, for respondent.
   SUNDBERG, Chief Justice.

The District Court of Appeal, Third District, certifies that the order of the Circuit Court for the Eleventh Judicial Circuit in Flynn v. McPherson, dated February 24, 1981, is a matter of great public importance requiring an immediate resolution by the Supreme Court of Florida. We accept jurisdiction of this cause pursuant to article V, section 3(b)(5), Florida Constitution.

Petitioner Scott McPherson defeated respondent Bill Flynn in the November 4, 1980, general election for the office of State Representative, District 117. McPherson was certified shortly thereafter by the appropriate canvassing board as the winner of the District 117 election. Flynn then filed suit in circuit court, seeking a judicial determination that he is entitled to the legislative seat because McPherson had been unqualified to run for office. Due to the failure to name proper parties, the circuit court dismissed Flynn’s complaint but granted time to amend. The amended complaint, dated December 18, 1980, realleged the essential elements of the original complaint. McPherson responded with a motion to dismiss the amended complaint, arguing that Flynn had failed to state a cause of action and that the court lacked jurisdiction over the subject matter of the dispute. The circuit court denied the motion to dismiss on February 24, 1981, and ordered McPherson to answer the amended complaint within fifteen days. McPherson then filed a petition for writ of certiorari in the district court to review the trial court’s denial of the motion to dismiss, and in turn the cause was certified to us by the district court.

This dispute arises from respondent’s basic allegation in his complaint that petitioner filed a false candidate oath. The oath was false, respondent asserts, because as a part of that oath petitioner swore that he was qualified to hold the office of State Representative for District 117, which he was not because he was neither a resident nor a qualified elector from District 117. Thus by filing the false oath, petitioner misled the voters in their election choice. Respondent grounds his cause of action in sections 102.168 and 102.1682, Florida Statutes (1979), relating to election contests and judgments of ouster. He also seems to assert that there is inherent judicial authority or common law authority to protect against election fraud. Petitioner counters that pursuant to article III, section 2, Florida Constitution, the House of Representatives is the sole judge of its members’ qualifications, hence the judiciary has no jurisdiction over this dispute. Further, petitioner argues that an election contest under chapter 102 deals only with the actual marking and counting of ballots, not with candidate qualifications.

For' purposes of our analysis, we restate the issue to be decided:

whether the courts of this state have jurisdiction to inquire into a person’s qualifications to hold office, when that person has already been duly elected and has taken office as State Representative?

For the following reasons we answer this question in the negative.

Generally, there is no inherent power in the courts of this state to determine election contests and the right to hold legislative office. The courts in this state are without jurisdiction to determine the right of one who has been elected to legislative office. English v. Bryant, 152 So.2d 167 (Fla.1963); State ex rel. Rigby v. Junkin, 146 Fla. 347, 1 So.2d 177 (1941). At common law, except for limited application of quo warranto, there was no right to contest in court any public election, because such a contest is political in nature and therefore outside the judicial power. See Hubbard v. Ammerman, 465 F.2d 1169, 1176 (5th Cir. 1972), cert. denied, 410 U.S. 910, 93 S.Ct. 967, 35 L.Ed.2d 272 (1973); 26 Am. Jur.2d, Elections, §§ 328-29 (2d ed. 1966).

As the United States Supreme Court has pointed out under the parallel articles of the federal constitution, the doctrine of separation of powers requires that the judiciary refrain from deciding a matter that is committed to a coordinate branch of government by the demonstrable text of the constitution. See Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969); Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Such is the case here. Article III, section 2, Florida Constitution, makes each house the sole judge of its members’ qualifications, a stronger mandate than the federal constitution. Article III, section 15(c) establishes the standing qualifications for a legislator, who must be “an elector and resident of the district from which elected.” The constitution grants the sole power to judge these qualifications to the legislature in unequivocal terms. The courts of this state-, therefore, have no jurisdiction to determine these constitutional qualifications.

Cases from other jurisdictions have confronted practically identical challenges to the residency requirements of an elected legislator and have uniformly refused jurisdiction. In Buskey v. Amos, 294 Ala. 1, 310 So.2d 468 (1975), the Supreme Court of Alabama faced a strikingly similar challenge by an unsuccessful candidate to the residency qualifications of his elected opponent. Even though the challenge commenced pri- or to the election, the court found itself without jurisdiction since the elected legislator had begun his term. See also In re McGee, 36 Cal.2d 592, 226 P.2d 1 (1951); State ex rel. Turner v. Scott, 269 N.W.2d 828 (Iowa 1978). These cases each find that constitutional provisions similar to Florida’s confer exclusive jurisdiction on the legislature to judge residency qualifications of its members.

Respondent asserts that in spite of this exclusive power of the legislature to judge members’ qualifications, the courts of Florida should accept jurisdiction to judge eligibility to run as a candidate, relying on State ex rel. Fair v. Adams, 139 So.2d 879 (Fla.1962). Adams is factually quite different from the present case, and is therefore in-apposite. Furthermore, we fail to see the jurisdictional or constitutional significance in distinguishing between eligibility for candidacy and qualifications for office. Other courts agree with our position. See Reaves v. Jones, 257 Ark. 210, 515 S.W.2d 201 (1974); Rainey v. Taylor, 166 Ga. 476, 143 S.E. 383 (1928). In brief, candidacy is an integral part of the election process. See In re McGee. The litigation in this case unavoidably involves a non justiciable political question and is properly left to the prerogative of the legislature.

That the original complaint may have been filed prior to the actual seating of the petitioner is of no consequence. The issue of qualifications is nonetheless within the purview of legislative powers. Article III, section 15(d) provides that the term of legislative office shall begin upon election. It is undisputed that the petitioner is presently seated in the House. We need not determine whether the courts of Florida ever had jurisdiction; we need only determine they do not now have jurisdiction.

The respondent also relies on the statutory provisions to contest elections. See §§ 102.168, 102.1682 Fla.Stat. (1979). Since there is no common law right to contest elections, any statutory grant must necessarily be construed to grant only such rights as are explicitly set out. See Pearson v. Taylor, 159 Fla. 775, 32 So.2d 826 (1947). The statutory election contest has been interpreted as referring only to consideration of the balloting and counting process. State ex rel. Peacock v. Latham, 125 Fla. 69, 169 So. 597 (1936); Farmer v. Carson, 110 Fla. 245, 148 So. 557 (1933). The balloting process is distinct from the legal qualifications of the candidates, and we can find no authority for extending an election contest to areas outside the balloting process. See State ex rel. Gandy v. Page, 125 Fla. 453, 170 So. 118 (1936). Additionally, section 102.168 is limited, under these circumstances, to contesting the “certification of election.” Section 102.151, Florida Statutes (1979), makes clear that this certificate concerns the number of votes, by stating, “The county canvassing board shall make and sign triplicate certificates containing the total number of votes cast for each person .... ” We can therefore find no right of respondent to attack the petitioner’s residency qualifications under statutory sections providing for contest of elections.

Respondent has demonstrated no constitutional, common law, or statutory right to support a judicial challenge to petitioner’s qualifications. Accordingly, the petition for writ of certiorari filed with the Third District Court of Appeal and transferred to this Court under article V, section 3(b)(5) is granted, and the trial court’s order denying petitioner’s motion to dismiss is reversed.

It is so ordered.

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

      . The parties’, recitation of facts in this case is exceedingly unclear, but it appears that the trial judge originally assigned to this case issued an order denying McPherson’s motion to dismiss on December 15, 1980. Shortly thereafter, the trial judge was appointed to the district court of appeal, and this case was reassigned to Judge Nadler. The parties make too much of the issue whether Judge Nadler was bound by the prior rulings of the trial court. Suffice it to say that Judge Nadler entertained the same motion to dismiss previously filed, and he denied the motion as had the original judge.

      .Sections 102.168 and 102.1682 read:
      102.168 Contest of election. — The certification of election or nomination of any person to office, or of the result on any question, submitted by referendum, may be contested in the circuit court by any unsuccessful candidate for such office or nomination thereto, or by any taxpayer, respectively. Such contestant shall file a complaint, together with the fees prescribed in chapter 28, with the Clerk of the Circuit Court within 10 days after midnight of the date the last county canvassing board empowered to canvass the returns adjourns, and the complaint shall set forth the grounds on which the contestant intends to establish his right to such office or set aside the result of the election on a submitted referendum. The canvassing board or election board shall be the proper party defendant, and the successful candidate shall be an indispensable party to any action brought to contest the election or nomination of a candidate.
      102.1682 Judgment of ouster; revocation of commission; judgment setting aside referendum.—
      (1) If the contestant is found to be entitled to the office, if on the findings a judgment to that effect is entered, and if the adverse party has been commissioned or has entered upon the duties thereof or is holding the office, then a judgment of ouster shall be entered against such party. Upon presentation of a certified copy of the judgment of ouster to the Governor, the Governor shall revoke such commission and commission the person found in the judgment to be entitled to the office.
      (2) If a judgment is entered setting aside a referendum, the election shall be void.

      . Article III, section 2, Florida Constitution reads:
      SECTION 2. Members; officers. — Each house shall be the sole judge of the qualifications, elections, and returns of its members,

      . “Each House shall be the judge of the elections, returns and qualifications of its own members . .. .” U.S. Const., art. I, § 5, cl. 1.


author: BOYD, Justice.

text:
    George E. HOULE, Petitioner, v. ASPHALT SEALING AND STRIPPING COMPANY, INC. et al., Respondents.
    No. 56379.
    Supreme Court of Florida.
    April 16, 1981.
    Seymour H. Rowland, Jr., Ocala, and John Arnett of Musleh, Bond, Arnett, For-man & Atkins, Ocala, for petitioner.
    Barry D. Graves of Ritch & Graves, Gainesville, for respondents.
   BOYD, Justice.

This cause is before the Court on petition for certiorari to review an order of the Industrial Relations Commission. The Commission reversed the finding of the Judge of Industrial Claims that the claimant was injured by an accident arising out of and in the course of his employment. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. (1972).

Petitioner George E. Houle went to work for Asphalt Sealing and Stripping Company in May or June, 1976. His job consisted of cleaning and sealing asphalt pavement such as is used in parking lots and driveways. In the course of installing large concrete blocks used as car stops at the front of parking spaces, he wás often called upon to lift and move the 150-pound car stops. When working on automobile parking lots, petitioner would have to lift and move from 50 to 400 car stops.

Around the middle of January, 1977, petitioner began to experience back problems at work. While driving a company truck back from a job in early February, he experienced sharp, unbearable pain in his back. The next day he told his employer about the incident. He continued to experience back pain and saw a doctor on March 25 and again on April 18. The doctor concluded that Mr. Houle was suffering from residual back pain, a weakness of dorsiflexion, and diminished sensation in the lower left leg, but only when he performed heavy lifting. The doctor concluded that petitioner was unable to perform heavy labor, and advised him to change jobs.

Several years previous to these experiences, petitioner had two surgical operations on his back. Because of these operations, he did not work from 1961 to 1965. Since that time, however, he has had steady employment, often at jobs requiring heavy lifting. During the time from about 1965 when he returned to work up until the instance at issue now, according to his testimony, petitioner had no problems with his back except for one isolated occasion when he was driving to work.

Petitioner stopped working in March, 1977 and filed his claim on April 21. After a hearing, the Judge of Industrial Claims found that “the resulting injury was an unusual result, occurring suddenly, as a result of the repeated strenuous lifting called for in the claimant’s employment.” The Commission reversed on the ground that there was no evidence of an accident. We hold that the Commission departed from the essential requirements of law and we therefore reverse.

Years ago this Court held that it was enough if there was “an unexpected result, even though there was no unexpected cause, such as a slip, fall or misstep, in order to constitute an 'accident’ within the meaning of the Workmen’s Compensation Law.... ” Gray v. Employers Mutual Liability Insurance Co., 64 So.2d 650, 651 (Fla.1952) (emphasis in original). Ten years later the Court granted workers’ compensation benefits to a woman who gradually started having pains in her back (later diagnosed as a herniated disc) and legs while packing grapefruit even though she could not recall the exact moment when the pains began. Spivey v. Battaglia Fruit Co., 138 So.2d 308 (Fla.1962). There we made it clear that the circumstances, not just a particular circumstance of one’s work, can be a “causative factor” of an injury. Id. at 311. See also, Zerwal v. Caribbean Modes, Inc., 170 So.2d 840 (Fla.1965).

The issue in this case is whether there was substantial competent evidence upon which the Judge of Industrial Claims could base his finding that the claimant’s injury was caused by repeated strenuous lifting of the car stops. This is the same issue as in the case of Williams v. Terrazzo Associates, 224 So.2d 257 (Fla.1968), where the claimant experienced pain in his lower back after unloading 100-pound bags from a boxcar. The Court held that the claimant’s testimony, coupled with the doctor’s testimony that “the pain experienced by claimant was compatible with the heavy lifting in which he had been engaged, suffices to demonstrate that claimant received a back injury as the unexpected result of such work.” Id. at 258. The Court further observed:

The fact that claimant’s testimony revealed he had in the past experienced some back pain when engaged in heavy work but which did not disable him to fully perform (except for the completed episode in 1962) does not dispel a logical conclusion from the record evidence available that claimant’s present back injury is an “internal failure” which resulted unexpectedly and suddenly from the performance of his employment activities.

Id. Similarly, petitioner’s testimony coupled with his doctor’s observation that his symptoms occurred only when performing heavy lifting or bending is sufficient to establish a causal connection between his work and the injury.

Since there is substantial competent evidence supporting the Judge of Industrial Claims’ finding, the Industrial Relations Commission departed from the essential requirements of law by substituting its own judgment. Scholastic Systems, Inc. v. Leloup, 307 So.2d 166 (Fla.1974). We therefore reverse the Commission’s order and remand this case with instructions that the Judge of Industrial Claims’ order be reinstated.

It is so ordered.

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

OVERTON and ALDERMAN, JJ., dissent.


author: BOYD, Justice. McDONALD, Justice,

text:
    Nina DIAMOND, Adele Diamond, and William Diamond, Petitioners, v. E. R. SQUIBB AND SONS, INC., Respondent.
    No. 56451.
    Supreme Court of Florida.
    April 16, 1981.
    Mark Krasnow of Law Offices of Lida & Krasnow, Miami, Alan E. Weinstein, Miami Beach, for petitioners.
    James C. Blecke and James E. Tribble of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for respondent.
   BOYD, Justice.

This cause is before the Court on petition for certiorari to review the decision in Diamond v. E. R. Squibb & Sons, Inc., 366 So.2d 1221 (Fla.3d DCA 1979). Jurisdiction is predicated on conflict with Overland Construction Co. v. Sirmons, 369 So.2d 572 (Fla.1979). Art. V, § 3(b)(3), Fla.Const. (1972). We conclude that under the principle laid down in Overland, which was decided after the decision in the case under review, the district court of appeal was in error and its decision must be quashed.

On April 1, 1977, Nina Diamond and her parents brought this action against E. R. Squibb and Sons, Inc., based on negligence and product liability. They alleged that from July 27, 1955, to April 1, 1956, Nina Diamond, while yet unborn, had administered to her a drug known as diethylstilbes-trol, produced by the Squibb company under the trademark “stilbetin.” They alleged further that in May, 1976, they learned that teenaged girls whose mothers had been treated with stilbetin during pregnancy were developing cancerous or precancerous conditions. The complaint charged that in developing, promoting, and marketing the drug, Squibb knew or should have known that it was not safe.

The defendant Squibb moved for summary judgment on the ground that section 95.031(2), Florida Statutes (1977), was applicable and barred the action. Section 95.-031(2) provides:

Actions for products liability and fraud under subsection 95.11(3) must be begun within the period prescribed in this chapter, with the period running from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence, instead of running from any date prescribed elsewhere in subsection 95.11(3) but in any event within 12 years after the date of delivery of the completed product to its original purchaser or the date of the commission of the alleged fraud, regardless of the date the defect in the product or the fraud was or should have been discovered.

In response to the motion, the plaintiffs argued that section 95.031(2), if held to apply, would have abolished their right of action thereby depriving them of due process of law and denying them access to courts in violation of article I, section 21, Florida Constitution. The circuit court ruled for defendant and entered summary judgment.

Article I, section 21, Florida Constitution, provides: “The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.”

The operation of section 95.031(2) in this case has the same effect as it had in Overland Construction Co. v. Sirmons, 369 So.2d 572 (Fla.1979). The statute of limitations operated there to bar the cause of action before it ever accrued, so that no judicial forum was available to the aggrieved plaintiff. A majority of the members of this Court declared the limitations period unconstitutional as applied on the ground that it violated article I, section 21, Florida Constitution.

We find that binding precedent exists because petitioners’ right of action was barred before it ever existed, as in Overland. We therefore hold that as applied in this case, section 95.031(2) violates the Florida Constitution’s guaranty of access to courts.

The district court’s decision is quashed and the cause is remanded to that court with directions to vacate the judgment and remand to the circuit court for further proceedings consistent with this opinion.

It is so ordered.

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

McDONALD, j., concurs specially with an opinion.

ALDERMAN, J., dissents.

McDONALD, Justice,

specially concurring.

I have questioned whether the doctrine articulated in Overland Construction Co. v. Sirmons, 369 So.2d 572 (Fla.1979), is an unwarranted curb on the legislature’s power and do not embrace it. I do, however, concur in the results of this decision.

The sale and ingestion of the alleged defective product took place in 1955-1956. It is alleged that the effect of that ingestion did not materialize until after the plaintiff reached puberty. In this plaintiff’s case the claim would have been barred, even though the wrongful act had taken place, before the injury became evident. She had an accrued cause of action but it was not recognizable, through no fault of hers, because the injury had not manifested itself. This is different from a situation where the injury is not inflicted for more than twelve years from the sale of the product. When an injury has occurred but a cause of action cannot be pursued because the results of the injury could not be discovered, a statute of limitation barring the action does, in my judgment, bar access to the courts and is constitutionally impermissive.

        See Battilla v. Allis Chalmers Mfg. Co., 392 So.2d 874 (Fla.1980).


author: PER CURIAM. SUNDBERG, Chief Justice,

text:
    FLORIDA BOARD OF BAR EXAMINERS RE: L. K. D.
    No. 57138.
    Supreme Court of Florida.
    April 16, 1981.
    Wm. J. Sheppard, Jacksonville, for petitioner.
    John H. Moore, Executive Director and Alexander L. Hinson, Chairman of the Florida Board of Bar Examiners, and C. Graham Carothers, Tallahassee, for respondent.
   PER CURIAM.

This matter is before the Court upon the petition of L.K.D. for admission to The Florida Bar and the response of the Florida Board of Bar Examiners thereto. We have jurisdiction pursuant to Article V, section 15, Florida Constitution, and Article IV, section 20(a), Rules of the Supreme Court Relating to Admissions to the Bar. After a careful review of the petition, the response, the entire transcript of the informal and formal hearings, and the other documents which make up the record in this cause, and after hearing oral argument of the parties, we determine that the petition should be granted.

In September, 1977, petitioner allegedly stole clothing from “The Etc. Store” in Tallahassee. No criminal charges were brought for this incident. Petitioner was later charged with shoplifting from the same store on January 30, 1978. A jury acquitted petitioner of that charge in May, 1978.

L.K.D. received her Juris Doctor degree from Florida State University College of Law in March, 1978, and subsequently passed all parts of the Florida Bar Examination. At the Board’s invitation, petitioner attended an informal hearing on November 10,1978, concerning her fitness to practice law. After the informal hearing the Board served specifications on petitioner alleging her unfitness for admission. She answered, denying all allegations, and requested a formal hearing. She also filed a motion to dismiss the specifications on the basis of In re Florida Board of Bar Examiners, 183 So.2d 688 (Fla.1966).

After a formal hearing on February 9, 1979, the Board entered these findings:

1. That on or about September, 1977, and again on or about January 30, 1978, while she was enrolled as a law student at Florida State University College of Law, she obtained or used or attempted to obtain or use an item of clothing which was the property of a retail clothing store doing business as “The Etc. Store” in Tallahassee, Florida, without paying for the garments.
2. That she executed and filed with the Board an amendment to her application which was sworn to on or about April 12,1978, in which she denied having stolen an item of clothing from “The Etc.” retail clothing store, knowing said amendment to be false.
3. That she testified falsely under oath at an informal hearing held before a division of the Board on November 10, 1978, in that she denied having stolen any item of clothing from “The Etc.” retail store on any occasion.
4. That she testified falsely under oath at the criminal proceeding held May 22, 1978, in a case styled State of Florida v. [L.D.], before the County Court in and for Leon County, Florida, in that she denied having stolen any item of clothing from “The Etc.” clothing store at any time.

The Board also denied the motion to dismiss on these grounds:

Prior to the taking of testimony the Board heard argument from counsel for the applicant on the motion to dismiss the Specifications. In consideration of that motion, the Board is mindful of the fact that the applicant was previously accused and tried before the County Court for Leon County, Florida, in 1978 on a charge of petty larceny. The act of which she was accused in the criminal proceeding is included in the allegations contained in Specification No. 1. The Board has carefully considered the applicant’s acquittal in the criminal proceeding, but does not view that acquittal as a bar to these proceedings. Moreover, the allegations contained in the Specifications involve matters over and beyond the shoplifting incident of January 30, 1978 which was the subject of the criminal proceeding. Additionally, the burden of proof required for conviction in a criminal proceeding is substantially greater than the burden applicable to this proceeding. Accordingly, the applicant’s motion to dismiss is hereby denied'.

Based upon their findings of fact and conclusions of law, the Board recommended that petitioner not be admitted to The Florida Bar.

By her petition L.K.D. maintains that the findings of fact and conclusions of law by the Board are erroneous. She asserts: (i) that the circumstantial evidence concerning the event of September, 1977, is insufficient to support the finding that petitioner “obtained or used or attempted to obtain or use” an item of clothing without paying for the article; (ii) that the evidence concerning the event of January, 1978, is conflicting, weak and insufficient to support the finding that “she obtained or used or attempted to obtain or use” an item of clothing without paying for the same, in the face of a jury’s acquittal of the same charge; and (iii) that the Board failed to give proper weight to evidence of good character submitted at the formal hearing through live testimony and affidavits.

First, we address petitioner’s motion to dismiss, predicated on this Court’s decision in In re Florida Board of Bar Examiners, 183 So.2d 688 (Fla.1966). In that decision the Court held that a conviction of petty larceny would not deprive an individual of his or her right to be admitted to The Florida Bar if otherwise qualified, although the conviction may be taken into consideration in the overall measure of character.

Petitioner urges that the insufficiency of the evidence linking her to any larcenous conduct in 1977 leaves only the Board’s evaluation of the facts surrounding the 1978 incident as a basis for the Board’s conclusion that she is unfit to be an attorney. She suggests, therefore, that in the face of her exclusively favorable character evidence, our 1966 decision loses all meaning if the acquittal of a petty larceny charge can alone support rejection from the bar. This argument is persuasive, and it influences our ultimate decision here, for we agree completely that evidence of the 1977 incident is so insubstantial that it must be disregarded altogether. Nonetheless, we consider that it was within the Board’s power to defer a summary dismissal of its specifications until conclusion of the formal hearing on petitioner’s character and then, consistent with the Board’s ultimate ruling against petitioner, to deny the motion to dismiss. From this petitioner suffers no prejudice, for the correctness of the Board’s ultimate ruling is before us and we need not dwell independently on the technical correctness of the Board’s ruling on petitioner’s motion to dismiss.

Logically, we must next consider the effect of petitioner’s jury acquittal of the 1978 larceny charge as it bears on the Board’s fact-finding responsibilities. The Board was correct in noting that the standard of proof in a bar admission proceeding does not require the establishment of facts beyond and to the exclusion of every reasonable doubt, as required in the criminal proceedings. Counsel for petitioner concedes this point, but nevertheless asserts that, even applying a lesser standard, the circumstantial evidence surrounding both events is insufficient to establish that petitioner purloined the article of clothing. The Board reached its independent conclusion on these incidents, it notes, after having “carefully observed the demeanor of each witness, their frankness or lack of frankness, their intelligence, their interest, if any, in the outcome of this proceeding, their ability to remember the matters about which they testified and the reasonableness of their testimony considered in the light of all the evidence in the proceeding.” In short, the Board discharged its responsibility by conducting its own fact-finding trial, using a lesser standard of proof than the criminal jury’s.

The fact that the Board heard live testimony, however, does not insulate its fact-finding from review here in a somewhat more detailed manner than is usual in an appellate review of a jury finding. Unlike that latter situation, the Board’s “trial” does not preclude us from reviewing the factual underpinnings of its recommendation, based on an independent review of the record developed at the hearings. See Florida Board of Bar Examiners re Groot, 365 So.2d 164 (Fla.1978); Florida Board of Bar Examiners re G. W. L., 364 So.2d 454 (Fla.1978).

It is from our close evaluation of the record that we are compelled to conclude that the Board’s findings with regard to the 1977 incident are not supported with competent evidence, and that the Board’s findings with regard to the 1978 incident, even though somewhat supported in the record, are not alone sufficient to bar petitioner’s admission to the practice of law in light of the substantial, unrefuted, other evidence of petitioner’s good character. See In re Florida Board of Bar Examiners.

Additional adverse findings were made by the Board, of course. The second and fourth stem from petitioner’s persistent protestation of her innocence of wrongdoing before or at her criminal trial. Obviously, these add nothing at all to her character analysis. Similarly, the third additional adverse finding lacks independent significance in evaluating petitioner’s character as it flows, cumulatively, from the Board’s conclusion that petitioner was in fact guilty of the alleged larceny charges.

Petitioner’s jury acquittal, while not binding on the Board or on this Court in reaching conclusions regarding the alleged incident of theft itself, has special significance with regard to the Board’s conclusion that petitioner lied three times in asserting her innocence. That is, the jury’s conclusion vindicated petitioner’s declaration of innocence of the crime charged before and at the jury trial. Her acquittal would continue to justify her protestation of innocence at her subsequent Board hearing, even though the Board might have thought it advantageous to make a showing of repentance.

We conclude that petitioner has carried her burden of demonstrating good character, and has shown a present fitness to enter the practice of law. Her petition for admission is granted.

It is so ordered.

ADKINS, BOYD, OVERTON and ENGLAND, JJ., concur.

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

McDONALD, J., dissents.

SUNDBERG, Chief Justice,

dissenting.

Today’s decision, though well intentioned, is shortsighted and ignores fundamental precedent. I must therefore dissent.

To begin, the majority mischaracterizes the ruling in In re Florida Board of Bar Examiners, 183 So.2d 688 (Fla.1966). The Court strongly implies that Florida Board of Bar Examiners holds that in the face of otherwise favorable character evidence, the facts and circumstances giving rise to a petty larceny charge cannot alone support rejection from the Bar. The scope of the 1966 decision is not nearly so expansive. That case simply stands for the proposition that the mere presence of a petty larceny conviction, standing by itself, does not automatically exclude an individual from admission to The Florida Bar. More importantly, the case goes on to hold that the Board may take into consideration such conviction and weigh it in connection with the overall measure of character and fitness of the applicant. Thus the Board was acting responsibly in considering the facts surrounding the incidents of September, 1977, and January, 1978, in determining petitioner’s fitness to practice law.

Furthermore, it is clear that the jury’s acquittal of petitioner on the petty larceny charge stemming from the January, 1978, event does not preclude the Board from considering evidence of that event as bearing upon the character and fitness of the petitioner. The standard of proof in a bar admission proceeding does not require establishment of fact beyond and to the exclusion of every reasonable doubt which is required in the criminal proceeding. The rule of circumstantial evidence applicable in a civil case was stated in Nielsen v. City of Sarasota, 117 So.2d 731 (Fla.1960). After citing a number of previous decisions of the Court discussing the rules applicable to circumstantial evidence and justifiable inferences therefrom in civil actions, as distinguished from criminal cases, the Court stated: 117 So.2d at 733. Of course, a further distinction exists between civil and criminal procedure where circumstantial evidence is concerned, in that in a civil ease a fact may be proved by circumstantial evidence if the inference of the fact preponderates over other inferences. In a criminal case the inference of the fact must appear beyond and to the exclusion of every reasonable doubt.

The sum of all of these opinions is that in a civil case, a fact may be established by circumstantial evidence as effectively and as conclusively as it may be proved by direct positive evidence. The limitation on the rule simply is that if a party to a civil action depends upon the inferences to be drawn from circumstantial evidence as proof of one fact, it cannot construct a further inference upon the initial inference in order to establish a further fact unless it can be found that the original, basic inference was established to the exclusion of all other reasonable inferences.

In this case we are not concerned with the pyramiding of inferences and, therefore, the limitation on the rule referred to in Nielson is not applicable. The question is simply whether the inferences to be drawn from the evidence presented to the Board as to the theft preponderated over other inferences. The Board reached its conclusion after having “carefully observed the demeanor of each witness, their frankness or lack of frankness, their intelligence, their interest, if any, in the outcome of this proceeding, their ability to remember the matters about which they testified and the reasonableness of their testimony considered in the light of all the evidence in the proceeding.” It was appropriate for the Board so to do. Where there is competent circumstantial evidence, though the evidence was conflicting, to support the Board’s conclusion, it is not the function of this Court to substitute its judgment for the judgment of the Board where it acts as a trier of fact. Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

Today’s decision also holds that the jury verdict of acquittal in the criminal trial precluded the Board from considering petitioner’s denials of the shoplifting as separate instances of demonstrated bad character. The position, while superficially appealing, is not supported by the law. An acquittal of a charge of larceny does not bar even a subsequent criminal prosecution for perjury relating to defendant’s testimony material to the essential elements of the crime of larceny. Although some authorities support the proposition that an acquittal upon a given charge is a good defense to a subsequent charge of perjury upon double jeopardy principles, other authorities reach a contrary result and this state seems not to have embraced the collateral estoppel theory. See Yarbrough v. State, 79 Fla. 256, 83 So. 873 (1920). Moreover, the principles of double jeopardy upon which the theory of collateral estoppel in such cases rests are inapplicable to admission proceedings.

The personal hardship to petitioner' resulting from this ordeal is not lost upon me. I fear, however, that in its zeal tó rule compassionately, the majority works a greater mischief, the ramifications of which transcend this particular case. I think it beyond doubt that there was competent substantial evidence to support the Board’s findings with respect to both the 1977 and 1978 incidents. But the Court, contravening basic jurisprudential concepts of appellate review of factual findings, reevaluates the evidence to reach a contrary yet seemingly “equitable” decision. It is in just this type of difficult case where the Court must remain faithful to its fundamental guiding principles. We failed to do this here, and I am afraid our impulsiveness will come back to haunt.

ALDERMAN, J., concurs.


text:
    V. Donald REBHOLZ et ux., Petitioners, v. METROCARE, INC., etc., Respondent.
    No. 57463.
    Supreme Court of Florida.
    April 16, 1981.

      Jack S. Carey of Carey & Harrison, St. Petersburg, for petitioners.
    Michael L. Hastings of Battaglia, Ross, Forlizzo, Hastings, Dicus & Campbell, St. Petersburg, for respondent.
   BOYD, Justice.

This cause is before the Court on petition for writ of certiorari to review an order of the County Court of Pinellas County. Because it passed upon the constitutionality of a state statute, the order, under the jurisdictional provisions in effect when the petition was filed, would have been appealable to this Court upon final judgment. Therefore, we have jurisdiction to review the order by certiorari. Art. V, § 3(bX3), Fla.Const. (1972).

Metrocare, Inc., brought this action against the petitioners to recover sums it claimed were due under a condominium maintenance agreement. Petitioners raised the defense that their agreement to pay the claimed condominium maintenance fees was void and unenforceable. Both parties moved for summary judgment. The motions placed in issue the effect and validity of section 718.3025, Florida Statutes (1978 Supp.), which was enacted after the agreement in question was entered into. Ch. 78-340, § 5, Laws of Fla.

Section 718.3025 provides:

718.3025 Agreements for operation, maintenance, or management of condominiums; specific requirements.—
(1) No written contract between a developer or party contracting to provide maintenance or management services and an association prior to assumption of control of the association by unit owners other than the developer, by the developer or party contracting to provide maintenance or management services, or by the association after the assumption of control by unit owners other than the developer, which provides for operation, maintenance, or management of a condominium association or property serving the unit owners of a condominium shall be valid or enforceable unless the contract:
(a) Specifies the services, obligations, and responsibilities of the developer or .party contracting to provide maintenance or management services to the unit owners.
(b) Specifies the amount of money to be paid for each service, obligation, or responsibility to be performed by the party contracting to provide maintenance or management services and a time schedule indicating how often the service, obligation, or responsibility is to be performed, whether this be daily, weekly, monthly, or at some other regularly scheduled interval.
(c) Specifies a minimum number of personnel to be employed by the party contracting to provide maintenance or management services for the purpose of providing service to the association.
(2) In any case in which the party contracting to provide maintenance or management services fails to provide such services in accordance with the time schedule set forth in the contract, the association is authorized to procure such services from some other party and shall be entitled to collect any fees or charges paid for service performed by another party from the party contracting to provide maintenance or management services.
(3) Any services or obligations not stated on the face of the contract shall be unenforceable.

Section 718.126, Florida Statutes (1978 Supp.), which was created by chapter 78-340, section 11, Laws of Florida, provides: “The amendments to this chapter by chapter 78-340, Laws of Florida, shall apply to all contracts in effect on the effective date of chapter 78-340 and to all contracts entered into after the effective date of chapter 78-340.”

The trial court ruled for the plaintiff-respondent, holding section 718.126 unconstitutional as an impairment of the obligation of a contract. We agree.

Section 718.126 is an attempt by the legislature to make the requirements of section 718.3025 retroactively applicable. The retroactive application of the provisions requiring that maintenance agreements have certain provisions would invalidate many existing agreements. This impairs the obligations incurred under the pre-existing contracts and is unconstitutional. U.S.Const. Art. I,. § 10; Art. I, § 10, Fla.Const. See Village of El Portal v. City of Miami Shores, 362 So.2d 275 (Fla.1978); Fleeman v. Case, 342 So.2d 815 (Fla.1976); Yamaha Parts Distributors, Inc. v. Ehrman, 316 So.2d 557 (Fla.1975).

The ruling under review was correct. We therefore deny the petition for a writ of certiorari.

It is so ordered.

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

      . No state shall . .. pass any . .. law impairing the obligation of contracts....

      . No ... law impairing the obligation of contracts shall be passed.