author: ALDERMAN, Justice. ADKINS, Justice,

text:
    STATE of Florida, Petitioner, v. Carla Sue McCORD, Respondent.
    No. 59671.
    Supreme Court of Florida.
    June 11, 1981.
    Rehearing Denied Sept. 24, 1981.

      Jim Smith, Atty. Gen., and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for respondent.
   ALDERMAN, Justice.

We accepted jurisdiction to resolve the conflict between State v. McCord, 385 So.2d 1112 (Fla. 4th DCA 1980), and State v. Kling, 335 So.2d 614 (Fla. 2d DCA 1976). At issue is the applicability against the State of the collateral estoppel doctrine to pretrial orders in criminal cases. The Fourth District in the present case said that jeopardy is not the key to application of the doctrine and held that collateral estoppel applies against the State to pretrial orders which are “determined to be sufficiently firm to be accorded conclusive effect.” 385 So.2d at 1114. The Second District in Kling held that collateral estoppel applies against the State only after a defendant is put in jeopardy in the first proceeding. We agree with the Second District and hold that collateral estoppel against the State, as a part of the fifth amendment protection against double jeopardy, is applicable to pretrial orders only if jeopardy attaches in the first proceeding. The opinion of the Fourth District in State v. McCord is quashed.

McCord was arrested and charged with felony possession of a concealed weapon and narcotics and misdemeanor possession of narcotics and narcotic paraphernalia. All charges arose from the same detention and search. Finding the initial detention of McCord unlawful, the county court suppressed the evidence on the misdemeanor charges. Believing the collateral estoppel doctrine to be applicable, the circuit court suppressed the evidence on the felony charges.

Resolution of this case turns on the interpretation and application of Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), where the United States Supreme Court said: “[WJhen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” 397 U.S. at 443, 90 S.Ct. at 1194. McCord contends that collateral estoppel bars the State from relitigat-ing her motion to suppress evidence after it suffered an adverse ruling on this motion in the county court even though she was never placed in jeopardy in the county court. She argues that the “valid and final judgment” required before application of the collateral estoppel doctrine is only an adjudication of an issue in another action between the parties that is determined to be sufficiently firm to be accorded conclusive effect.

We reject McCord’s contentions. As is pointed out by Judge Grimes in Kling: “In Ashe the majority opinion made it clear that collateral estoppel in a criminal case was a part of the Fifth Amendment guarantee against double jeopardy. The only reason that Ashe could not be prosecuted for the second robbery was that he had already been placed in jeopardy for the first.” 335 So.2d at 615. In Kling, the Second District correctly held that since the defendants in that case were never placed in jeopardy on the charges against them in county court, they were not entitled to rely upon the doctrine of collateral estoppel.

The collateral estoppel doctrine does not apply to this case. The motion to suppress was granted in the county court on a pretrial order and the misdemeanor charges against McCord were dismissed. Consequently, having never been put in jeopardy of a determination of guilt in the county court, the collateral estoppel doctrine does not preclude the circuit court from considering the motion to suppress.

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

It is so ordered.

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

ADKINS, J., dissents with an opinion, with which ENGLAND and McDONALD, JJ., concur.

ADKINS, Justice,

dissenting.

I dissent.

I agree with the district court of appeal that jeopardy is not prerequisite to applieation of the rule of collateral estoppel. Collateral estoppel has the dual purpose of protecting litigants from the burden of re-litigating the item at issue with the same party and of promoting judicial economy by preventing needless litigation. Parklane Hosiery Co. Inc. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979).

The order of the judge of county court suppressing the evidence was a final adjudication as to its admissibility. As was said in Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970), “when an issue of ultimate fact has once been determined upon a valid and final judgment, that issue cannot again be litigated by the same parties in any future lawsuit.”

In the present case, the county court case was dismissed by the trial court upon defendant’s motion based on the insufficiency of the evidence absent the suppressed contraband. An order suppressing evidence is among those specifically appealable by the state. Fla.R.App.P. 9.140(c)(1)(B). The order of dismissal was also appealed by the state. Fla.R.App.P. 9.140(c)(1)(A).

The right to appeal is not conclusive but is accorded great weight in the assessment of what judgments are “final”. The parties were fully heard, the court supported its decision with a reasoned opinion, and the decision was subject to appeal. Therefore, the order of suppression and subsequent order dismissing the county court case were “final judgments” on the issues within the meaning of Ashe v. Swenson.

Under the reasoning of the majority opinion, in the event of adverse ruling on a motion to suppress, a nolle prosequi could be entered and the charges refiled before another judge. The state would then be allowed a second chance to litigate the suppression issue without the defendant having any remedy.

I would approve the decision of the district court of appeal.

      . McCord’s counsel conceded at oral argument that this result is not required by Ashe:

      Court: So what you’re asking us to do goes beyond Ashe v. Swenson.

      Counsel: It goes beyond Ashe v. Swenson, that’s correct. I think the particular issue that we’re addressing here has not in fact been addressed by the United States Supreme Court yet.
      Court: What federal — what U.S. Supreme Court decision requires this Court to adopt your view?
      Counsel: There is no specific decision from the United States Supreme Court on this point.
      Court: Then we would have to strike out on our own and go beyond what the U.S. Supreme Court requires to reach your result.
      Counsel: That’s correct.


source: Caselaw Access Project

author: PER CURIAM. BOYD, Justice,

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Benjamin M. ABRAMS, Respondent.
    No. 57761.
    Supreme Court of Florida.
    June 25, 1981.
    Rehearing Denied Sept. 23, 1981.

      John A. Weiss, Bar Counsel, Tallahassee, for complainant.
    Robert L. Kraweheck, Coral Gables, for respondent.
   PER CURIAM.

This disciplinary proceeding is before us on complaint of The Florida Bar. Respondent petitions for review of the report of referee, arguing that it is, in various portions, deficient, erroneous, unlawful, unjustified, and improper.

The complaint filed by the bar contended that respondent, who practices law in Micronesia, represented three defendants in a criminal case; that in the course of said representation, respondent interviewed three government witnesses who had been promised immunity in exchange for testimony damaging to respondent’s clients; that respondent advised the three witnesses that they did not have to testify, and that they might still be open to prosecution at some later date; that two of the three witnesses then requested that respondent represent them, later refused to testify, and were prosecuted; that shortly before the trial of said two witnesses, respondent filed a motion to withdraw as their counsel and did not appear at their trial; that at the trial of his original clients, respondent stated that he represented the third government witness, who had not requested his representation, when, in fact, he did not; that the Appellate Division of the High Court for the Trust Territory of the Pacific Islands found respondent guilty of violating Disciplinary Rules 5-105, 2-103(A) and 7-102(A)(5) of the American Bar Association and Rules 2(d) and 2(h) of the Trust Territory Disciplinary Rules, and suspended him from the practice of law for three years, such suspension being stayed and a three-year probationary period imposed in lieu thereof; and, that by reason of the foregoing respondent violated Disciplinary Rules 1-102(A)(4), 1-102(A)(5), 5-105(A), 2-103(A), and 7-102(A)(5) of the Code of Professional Responsibility of The Florida Bar and Integration Rules 11.02(3)(a) and 11.-02(5) of The Florida Bar.

The report of referee alleged essentially the same facts as the preceding and recommended that respondent be found guilty of violating disciplinary rules 1-102(A)(4), 1-102(A)(5), 2-103(A), 7-102(A)(5) and 5-105(A) and integration rules 11.02(5) and 11.02(3)(a). The report also recommended that respondent be suspended from the practice of law for one year, and thereafter until he proves his rehabilitation as provided in integration rule 11.02(3)(a), and that he be charged all costs and expenses incurred by the bar in this matter.

Having carefully reviewed the record and the report of referee, we find that the report is supported by the record, and agree with the referee’s recommendations.

Respondent argues that the “Summary of Proceedings” in the referee’s report is deficient because it fails to reflect that the report was eighty days late or that the proceedings in this matter have stretched over a two-year period. While we agree that the bar must exercise diligence in prosecuting cases such as this, and are not condoning the unexplained delay in the filing of the referee’s report, respondent has not demonstrated that he was prejudiced thereby. In the absence of some discernible prejudice, we do not think that the delays warrant finding the report invalid.

We likewise do not agree that the errors in the referee’s findings of fact are so erroneous and deficient as to make the report invalid. We are aware that respondent’s suspension by the territorial court was stayed, despite the referee’s failure to so note, since the complaint filed by the bar acknowledged the stay. We are not, however, bound by the territorial court’s sanctions in imposing our own.

Similarly, while the report may have been mistaken in stating that the prosecutor in Micronesia “had given the witnesses immunity,” their immunity or lack thereof is not what matters here. The important issue is whether respondent was guilty of representing clients with interests adverse to each other and whether he recommended to them that he be retained as their counsel. Their susceptibility to prosecution does not affect the propriety of respondent’s actions and is not a decisive factor in our decision.

Respondent also suggests that the findings of fact are deficient because the referee was unable to procure a transcript of the proceedings in the territorial court. We find, however, that the record relied upon was sufficient basis for the report. The bar tried, and was unable through no fault of its own, to obtain a transcript. The referee had the file containing the territory’s evidence against respondent and interviewed respondent in person concerning the matter. The record on which the report is based is sufficient.

There has been no violation of respondent’s due process protections by finding him guilty of “conduct involving dishonesty, fraud, deceit or misrepresentation ...” (emphasis added), his arguments to the contrary notwithstanding. Respondent asserts that a violation consisting of alternative offenses prevents him from being able to ascertain with what he has been charged or of what convicted. Respondent was, however, advised at his hearing that the complaint was directed only at misrepresentation, so he was aware of the matter with which he was charged. As for the constitutionality of being charged with violation of DR 1-102(A)(4), we do not find it violative of due process, and have used it often. See, e. g., The Florida Bar v. Carlton, Fla., 366 So.2d 406 (1978); The Florida Bar v. Shemwell, Fla., 361 So.2d 421 (1978); and The Florida Bar v. Meserve, Fla., 372 So.2d 1373 (1979).

With regard to DR 1-102(A)(4), respondent further contends that his conviction thereunder is improper because it goes beyond the charges of which he was convicted in the foreign jurisdiction. Respondent correctly notes that integration rule 11.02(6) provides that discipline in a foreign jurisdiction “shall be considered as conclusive proof of such misconduct in a disciplinary proceeding under this rule”, and that the rule does not conclusively establish violations beyond those established in the foreign jurisdiction. That does not bar this Court, though, from finding respondent guilty of other violations. We are not limited by the findings of the foreign jurisdiction, and may certainly go beyond them in our proceedings. There is sufficient evidence in the record to justify finding that respondent violated DR 1-102(A)(4), and so we accept the referee’s recommendation that he be found guilty of such.

Respondent also incorrectly asserts that item 111(5) of the report, finding him guilty of violating integration rule 11.02(5), is improper because it pertains to the same conduct involved in item 111(2), finding respondent guilty of recommending employment of himself. There is, however, no prohibition on finding that the same act of misconduct violates the provisions of more than one disciplinary or integration rule. See, e. g., The Florida Bar v. Carlton.

Finally, in regard to the recommended one-year suspension, we do not find it excessive and so will impose such. We are not bound by the discipline imposed by the territorial court, and must analyze and deal with respondent’s improprieties according to the standards of this state, not of the foreign jurisdiction. The recommended suspension is not excessive in light of the evidence presented showing that respondent’s activities involved solicitation of employment, subsequent attempt to withdraw therefrom without good cause, conflict of interest, and misrepresentation to a court. A series of acts of misconduct which in aggregate constitute a serious breach of ethics warrant sterner sanctions. See The Florida Bar v. Brigman, Fla., 307 So.2d 161 (1975).

The findings and recommendations of the referee are hereby approved, and respondent is hereby suspended from the practice of law for one year, and thereafter until he shall prove his rehabilitation as provided in rule 11.10(3). The suspension shall be effective, July 27, 1981, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that respondent shall not accept any new business.

Costs in the amount of $309.20 are hereby assessed against respondent.

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

BOYD, Justice,

concurring specially:

I would concur in the finding of misconduct but order a public reprimand and payment of costs without suspension.


author: McDONALD, Justice.

text:
    STATE of Florida, Appellant, v. Russell LEICHT, Appellee. STATE of Florida, Appellant, v. Steven W. JORDAN, Appellee.
    Nos. 58233, 58288.
    Supreme Court of Florida.
    June 25, 1981.
    Rehearing Denied Sept. 24, 1981.

      Jim Smith, Atty. Gen. and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    H. Dohn Williams, Jr., of Varón & Stahl; Hollywood, for appellee Russell Leicht.
    Peter F. K. Baraban, Miami, for appellee Steven W. Jordan.
   McDONALD, Justice.

The state appealed a circuit court ruling declaring section 893.135, Florida Statutes (1979), unconstitutional. This Court stayed further proceedings in the instant cases because of the pending disposition of State v. Benitez, 395 So.2d 514 (Fla.1981). In Benitez, this Court found section 893.135 to be constitutional. That ruling does not entirely dispose of these two cases, however, because in the trial court the appellees presented an additional challenge to the statute’s constitutionality to the ones covered in Benitez. We again uphold the statute.

Appellees contend that section 893.135 violates equal protection by singling out only four of the controlled substances proscribed in section 893.03, Florida Statutes (1979). They claim that many other drugs are as dangerous and as widely abused as the four for which mandatory sentences have been enacted and that, therefore, there is no rational basis to support the classification set out in section 893.135.' We disagree.

As the United States Supreme Court has stated:

“Evils in the same field may be of different dimensions and proportions requiring different remedies. . .. [Rjeform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.... The legislature may select one phase of one field and apply a remedy there, neglecting the others.” Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483 [75 S.Ct. 461, 99 L.Ed. 563] [1955].

Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 591-92, 81 S.Ct. 1135, 1140, 6 L.Ed.2d 551 (1961). (Footnote omitted.) The legislature has wide discretion in creating statutory classifications, and there is a presumption in favor of validity. North Ridge General Hospital, Inc. v. City of Oakland Park, 374 So.2d 461 (Fla.1979), appeal dismissed, 444 U.S. 1062, 100 S.Ct. 1001, 62 L.Ed.2d 774 (1980); Powell v. State, 345 So.2d 724 (Fla.1977). Whether equal protection has been denied depends on whether a classification is reasonably expedient for the protection of the public safety, welfare, health, or morals. Rainey v. Nelson, 257 So.2d 538 (Fla.1972). A classification based on a real difference which is reasonably related to the subject and purpose of the regulation will be upheld even if another classification or no classification might appear more reasonable. Finlayson v. Connor, 167 So.2d 569 (Fla.1964).

To be constitutionally permissible, a classification must apply equally and uniformly to all persons within the class and bear a reasonable and just relationship to a legitimate state objective. Haber v. State, 396 So.2d 707 (Fla.1981). We find that section 893.135 is neither arbitrary nor unreasonable and that its provisions apply equally to all persons similarly situated. There may, as appellees contend, be other drugs as hazardous as the ones included in section 893.135. The legislature, however, has recognized the widespread use and abuse of marijuana, cocaine, morphine, and opium as an area of special concern and has acted accordingly. We acknowledge the magnitude of trafficking in these four drugs that exists in this state, and we have no difficulty in ascertaining a rational basis for the legislature’s actions in providing escalating mandatory minimum sentences regarding these substances.

We find that section 893.135 does not violate the equal protection clause and reaffirm the statute’s constitutionality. The trial court order is vacated.

It is so ordered.

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

      . Florida’s newly enacted “drug trafficking” statute.

      . Cannabis, § 893.135(l)(a), Fla.Stat.; cocaine, § 893.135(l)-(b), Fla.Stat.; and morphine and opium, § 893.135(l)(c), Fla.Stat.

      . Due to our holding, we do not discuss appel-lees’ arguments regarding severability.


author: ENGLAND, Justice.

text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION, and Robert Glen Gregg, Appellants, v. Daniel Robert KNOWLES, et ux., Appellees.
    No. 59870.
    Supreme Court of Florida.
    June 25, 1981.
    Rehearing Denied Sept. 24, 1981.

      Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Ft. Myers, for appellants.
    Bruce D. Frankel of Goldberg, Rubinstein & Buckley, Fort Myers, for appellees.
    Jim Smith, Atty. Gen. and Richard A. Hixson, Asst. Atty. Gen., Tallahassee, for Attorney General of the State of Florida, amicus curiae.
   ENGLAND, Justice.

This case brings us a familiar friend— section 768.28, Florida Statutes (1977), which waives sovereign immunity. When we visited that statute in District School Board of Lake County v. Talmadge, 381 So.2d 698 (Fla.1980), we held that public employees were partially indemnified, but not immunized from suit for injuries they inflict in the course of their employment. The legislature promptly changed that result by the enactment of Chapter 80-271, Laws of Florida, and in the course of providing public employees absolute immunity from suit endeavored to give that immunity partially retroactive effect by making it applicable to all lawsuits then pending in trial or appellate courts. Id. § 4. The retroactive effect of the legislation is the crux of the problem in this case.

Daniel Knowles had obtained a jury verdict for $70,000 against the Department of Transportation and one of its employees, Robert Gregg, for a motor vehicle mishap. The trial judge refused to enter a judgment against Gregg because he believed that section 768.28 provided state employees immunity from tort liability for merely negligent acts in the course of their employment. On review of the judge’s action, the Second District Court of Appeal had the benefit of our intervening decision in Taimadge, to the effect that state employees were not immune from liability, and the court directed the trial judge to enter judgment for Knowles against Gregg on the jury’s verdict.

Chapter 80-271 became effective just ten days before the district court rendered its decision, a fact which was called to the district court’s attention by a motion for rehearing. The court reconsidered its decision, aware of the legislature’s declaration of partial retroactivity in section 4 of the act, but nonetheless reaffirmed its directive in favor of Knowles. The court declared that Knowles had a “vested right to sue Gregg” which the 1980 statute could not constitutionally abrogate. The district court’s declaration that section 4 of chapter 80-271 is invalid is now brought to us by direct appeal under article V, section 3(b)(1), of the Florida Constitution (1980).

The department and Gregg, joined by the attorney general as friend of the Court, contend here that the legislature could validly apply its grant of immunity for public employees to lawsuits then pending in the courts of Florida. Their principal argument is that there exists no “vested right" which is adversely affected by the immunization of public employees, since section 768.28 has merely substituted the state as the financially responsible party. The theme underlying this argument is that the 1980 statute has merely clarified what the legislature always intended with respect to the liability of public employees.

Knowles views the matter differently. He asserts that he indeed had a “vested” right as a result of his injuries, either in the form of an accrued cause of action — a right to sue Gregg — or in the form of a matured cause of action as a result of the jury’s determination of his liability.

It simplifies matters to address first appellants’ underlying theme, that the 1980 statute is really a clarification of the original, 1973 statute waiving sovereign immunity. While we acknowledge the legislature’s right to enact curative statutes which overcome procedural deficiencies in earlier acts, the 1980 statute is clearly not of that genre.

In our Talmadge decision, we held that the original statute did not grant employees immunity. The appellants offer nothing to document their assertion that the 1980 statute can recharacterize the law as originally enacted. Although the legislature may well have reacted to our Talmadge decision, that fact alone does not revitalize an earlier, omitted legislative purpose. In fact, the legislature’s grant of only partial, rather than full retroactivity suggests exactly the opposite.

We have already determined in Tal-madge, as best we could, that the immunization of employees was not the legislature’s original plan. We searched long and hard to recreate the legislature’s will, and taking all factors into account we concluded in Talmadge that section 768.28 had indemnified, but not immunized public employees from personal responsibility. Given the Talmadge decision, we can hardly accept an unsupported suggestion that the 1980 enactment really constituted either a clarification of earlier intent, or a restatement of what had always been the law. Given Tal-madge, the 1980 statute can only be what it purports to be — a declaration of public policy by the legislature that the state will henceforth substitute its liability to injured persons for the liability of public employees who are merely negligent.

The question, then, boils down to whether the legislature can do what courts so often do — that is, make a prospective determination of law applicable to persons who are “in the pipeline” because, they are already litigating in that very subject area. To determine whether that problem implicates the maxim that retroactive legislation may not impair vested rights, we need first investigate whether Knowles had a “vested” right of some sort — a right to sue Gregg (as the district court said), a right to full recompense for his injuries, or a right to the jury’s award. That investigation can best be launched by considering the change in Knowles’ position which a retroactive application of the 1980 statute would engender.

Before the statute was passed, Knowles had a jury award for $70,000 against both the Department of Transportation and Gregg. The department’s liability limit was $50,000, of course, but under existing law at the time of Knowles’ injury (as Tal-madge defined it) he had both the right to the entry of a judgment against Gregg and the right to satisfaction of the $20,000 balance of his judgment from Gregg. After the enactment of chapter 80-271, if the position of the department and the attorney general is upheld, Knowles would have only a $50,000 judgment against the department. The detriment to Knowles from an application of the 1980 change would be his loss of the ability to be recompensed fully for the injuries occasioned by Gregg’s negligence, measured here by the jury at $20,000 more than the state by waiver has agreed to provide.

This analysis simplifies the “vested right” question by eliminating any dispute about “causes of action,” and against whom they may be enforced. Knowles’ right to sue Gregg had been replaced by a jury’s determination both that Gregg was liable to Knowles for injuries, and that the damages suffered by Knowles were $70,000. As a matter of principle, it is indisputable that a retroactive application of the 1980 law has taken from Knowles something of value, and that nothing of value has been substituted or otherwise provided.

Under due process considerations, a retroactive abrogation of value has generally been deemed, impermissible. Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593 (1935); Bell v. Isthmian Lines, Inc., 363 F.Supp. 156 (M.D.Fla.1973); McCord v. Smith, 43 So.2d 704 (Fla.1949). The rule is not absolute, however, and courts have used a weighing process to balance the considerations permitting or prohibiting an abrogation of value. Despite formulations hinging on categories such as “vested rights” or “remedies,” it has been suggested that the weighing process by which courts in fact decide whether to sustain the retroactive application of a statute involves three considerations: the strength of the public interest served by the statute, the extent to which the right affected is abrogated, and the nature of the right affected. That analysis is helpful here. Without discoursing unduly on the point, we readily conclude that the balancing of these factors favors Knowles. The statute effects an abrogation of Knowles’ right to his full tort recovery, not merely a procedural adjustment of his remedies. That abrogation clearly outweighs the public’s interest in the 1980 legislation.

Quoting Mr. Justice Holmes in Forbes Pioneer Boat Line v. Board of Commissioners, 258 U.S. 338, 339, 42 S.Ct. 325, 66 L.Ed. 647 (1922):

Stripped of conciliatory phrases the question is whether a state legislature can take away from a private party a right to recover money that is due when the act is* passed.

We hold, as in Forbes, that it cannot.

The decision of the court below is affirmed.

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

ADKINS, J., concurs in result only.

BOYD, J., dissents.

      . State Dep’t of Transp. v. Knowles, 388 So.2d 1045, 1048 (Fla.2d DCA 1980).

      . AH parties understand and concede that this case in no way affects Knowles’ judgment against the department, payable to the extent of $50,000 under the sovereign immunity waiver statute. § 768.28(5), Fla. Stat. (1977).

      .A “cause of action” was defined in Luckie v. McCall Mfg. Co., 153 So.2d 311, 314 (Fla. 1st DCA 1963), cert. denied, 157 So.2d 817 (Fla.1963).
      It consists of the facts which entitle one to institute and maintain a suit in court, and its elements are the invasion of a legal right of the plaintiff without justification or excuse, or the commission or threatened commission of a legal wrong, and the damages resulting therefrom.

      . E. g., Coon v. Board of Pub. Instruction, 203 So.2d 497 (Fla.1967).

      . For purposes of this case, the parties have not raised as a concern a $10,000 judgment awarded to Mrs. Knowles against both the department and Gregg.

      . § 768.28(5), Fla.Stat. (1977).

      . In Pinnick v. Cleary, 360 Mass. 1, 271 N.E.2d 592 (1971), the court cogently observed:
      In arguing that the cause of action affected by [the new no-fault insurance statute] constitutes a vested property right, the plaintiff seems to ignore the distinction between a cause of action which has accrued and the expectation which every citizen has if a legal wrong should occur to find redress according to the rules of statutory and common law applicable at that time. The Legislature is admittedly restricted in the extent to which it can retroactively affect common law rights of redress which have already accrued.

        Id. at 10-11, 271 N.E.2d at 599.

      . We discount both the contention that Knowles was given a new right to sue the department, since that right existed before the 1980 statute, and the suggestion that Knowles was given the right to apply to the legislature for the balance of his jury award. That right, like the right to his $50,000 judgment against the department, existed before the 1980 amendment. See § 768.28(5), Fla.Stat. (1977).

      . See Village of El Portal v. City of Miami Shores, 362 So.2d 275 (Fla.1978); Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv.L.Rev. 692 (1960).

      . Hochman, supra note 8, at 696-97.

      . The strength of a tort recovery in this weighing process was identified in Board of Comm’rs v. Forbes Pioneer Boat Line, 80 Fla. 252, 264, 86 So. 199, 204 (1920), rev’d, 258 U.S. 338, 42 S.Ct. 325, 66 L.Ed. 647 (1922).

      . See Village of El Portal v. City of Miami Shores, 362 So.2d 275 (Fla.1978).

      . Strong policy reasons support the state’s desire to immunize its employees from personal liability for on-the-job negligence. Unwillingness of citizens to serve in government without immunity, for example, may be one of those reasons. The state’s interests are fully vindicated by prospective application of the grant of immunity, however, and only a potentially modest interest (if any) is served by granting immunity to employees who already have been negligent. See Coombes v. Getz, 285 U.S. 434, 52 S.Ct. 435, 76 L.Ed. 866 (1932).

      . Cf. Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239 (Fla.1977) (court held substantive statutory right of immunity from suit could not be withdrawn retroactively by amendatory legislation).


author: ALDERMAN, Justice. BOYD, Justice,

text:
    William Glenn WELTY, Appellant, v. STATE of Florida, Appellee.
    No. 55497.
    Supreme Court of Florida.
    July 2, 1981.
    Rehearing Denied Sept. 24, 1981.

      Richard L. Jorandby, Public Defender and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen. and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Justice.

William Glenn Welty was convicted of first-degree murder. After a jury recommendation of life imprisonment, the trial court imposed the death sentence. We find no reversible error in his conviction, but we reduce his sentence to life in accordance with the jury’s recommendation because the facts suggesting a death sentence are not “so clear and convincing that virtually no reasonable person could differ.” Tedder v. State, 322 So.2d 908, 910 (Fla.1975).

While hitchhiking late at night, Welty was picked up by the victim, Jesse Burkhal-ter. Burkhalter persuaded Welty to accompany him to his condominium to engage in homosexual acts in return for which Burk-halter offered remuneration. After sleeping for a few hours with Burkhalter, who was in a highly intoxicated condition, Welty arose and left, taking with him the victim’s stereo and white mustang automobile and leaving the door to the condominium unlocked. He drove to his trailer in Burkhal-ter’s automobile and set up the stereo. Within a brief period of time, he left his trailer accompanied by one of his roommates, John Fox, and returned to Burkhal-ter’s condominium with intent to steal other items. Upon entering the condominium, Welty went directly into Burkhalter’s bedroom, struck him several times in the neck, and set fire to his bed. Welty and Fox then left, and, as they were driving away from the scene, Welty informed Fox that he had struck Burkhalter eight or nine times and that he had set fire to his bed and pillow. Welty confessed to having gone back to Burkhalter’s apartment and to having struck him in the neck once but denied that he had killed him.

Responding to a fire at Burkhalter’s condominium, the Winter Park Fire Depart- merit discovered Burkhalter’s charred body lying in his bed. The medical examiner testified that Burkhalter’s larynx was fractured by repeated blows, that his hyoid was fractured in two areas, and that there was extensive hemorrhaging caused by manual strangulation. He testified that death resulted from strangulation and that the fire had in no way contributed to the death.

Welty objects to his conviction on several grounds. Relying upon our recent decision in Tascano v. State, 393 So.2d 540 (Fla.1980), he contends that the trial court reversibly erred in not instructing the jury as to the penalties which could be imposed for the charge against him. In Tascano, we held that the language of Florida Rule of Criminal Procedure 3.390(a), providing that the trial judge must include in his charge to the jury “the maximum and minimum sentences which may be imposed (including probation) for the offense for which the accused is then on trial,” is mandatory and that, upon request of either the State or defendant, the trial judge must instruct on the maximum and minimum sentence for the crime charged. Tascano does not compel the result urged here by Welty, however. Welty was indicted and tried for first-degree murder. On several occasions during the trial, the jury was advised that the maximum penalty for murder in the first degree was death and the minimum penalty was life imprisonment. The trial court’s failure to again advise the jury what it had already been told was not reversible error.

Welty next complains that he was denied a fair trial because the deceased victim’s brother was permitted to give identification testimony. We acknowledge and adhere to the well-established rule in Florida that a member of the deceased victim’s family may not testify for the purpose of identifying the victim where nonrelated, credible witnesses are available to make such identification. See Lewis v. State, 377 So.2d 640 (Fla.1979); Rowe v. State, 120 Fla. 649, 163 So. 22 (1935); Ashmore v. State, 214 So.2d 67 (Fla. 1st DCA 1968). Admission of the identification testimony from a member of a victim’s family, however, is not fundamental error and may be harmless error in certain instances. Malloy v. State, 382 So.2d 1190 (Fla.1979); Rankin v. State, 143 So.2d 193 (Fla.1962); Barrett v. State, 266 So.2d 373 (Fla. 4th DCA 1972); Scott v. State, 256 So.2d 19 (Fla. 4th DCA 1971). The basis for this rule is to assure the defendant as dispassionate a trial as possible and to prevent interjection of matters not germane to the issue of guilt.

In the present case, it is clear from the record that the brother’s identification testimony was not of such a nature as to evoke the sympathy of the jury or to prejudice the defendant. Nor can we say that the brother’s testimony was not necessary to establish the identity of the deceased beyond a reasonable doubt. Here the neutral witnesses referred to by Welty were a fingerprint technician, who testified that the prints from the victim’s right hand matched the prints of Burkhalter on file with the Federal Bureau of Investigation as a result of an April 1976 DWI arrest of Burkhalter, and a former member of the Casselberry Police Department, who had arrested Burkhalter in 1976 for DWI and who identified Burkhalter from a 1976 mug shot taken at the time of the DWI arrest. Even though Welty was willing to stipulate to the identity of the victim, this did not prevent the State from presenting additional relevant evidence to prove identity beyond a reasonable doubt. We find that the trial court did not reversibly err in permitting this testimony.

Furthermore, we find no abuse of discretion by the trial court in permitting testimony, relative to the deceased’s military medals and the circumstances surrounding the loss of his leg, which was relevant to the question of identity. See Stone v. State, 378 So.2d 765 (Fla.1979), cert. denied, 449 U.S. 986, 101 S.Ct. 407, 66 L.Ed.2d 250 (1980), wherein we stated the fundamental rule of evidence that any fact relevant to prove a fact in issue is admissible into evidence unless its admissibility is precluded by some specific rule of evidence. The trial court has wide discretion m areas concerning the admission of evidence, and, unless an abuse of discretion can be shown, its rulings will not be disturbed. Mikenas v. State, 367 So.2d 606 (Fla.1978); Rodriguez v. State, 327 So.2d 903 (Fla.3d DCA), cert. denied, 336 So.2d 1184 (Fla.1976).

Relying primarily on conflicts in testimony of two key State witnesses, Welty argues that the evidence is insufficient to support his conviction for first-degree murder either on the basis of premeditated murder or felony murder. We disagree and hold that the record contains substantial, credible evidence supporting the verdict of guilty of murder in the first degree, on the basis of felony murder as well as premeditated murder. Welty effectually requests us to evaluate the credibility of the witnesses. This, however, is the province of the jury, and we will not reverse a judgment based upon a verdict returned by a jury where there is substantial, competent evidence to support the jury verdict. Clark v. State, 379 So.2d 97 (Fla.1979).

Welty’s own statement to the authorities which was introduced into evidence placed him in Burkhalter’s bedroom at the exact time of the murder. He admits striking the victim in the throat although he says he struck him only one time, and he portrays himself leaving the murder scene at about the time the fire marshal estimated the fire was started. He further concedes that Fox, who accompanied him to the apartment, could not have struck Burkhalter or set the fire.

Fox, whose credibility was the province of the jury to evaluate, testified that Welty went back to Burkhalter’s condominium, walked directly into the bedroom, in a matter of minutes returned, and said they must leave immediately. Fox testified that Welty had told him that he had struck Burkhal-ter eight or nine times and started a fire. Welty admitted to others who also testified that he had struck Burkhalter. He told one witness that he had killed a man and wanted to make sure no evidence was left behind. There was sufficient evidence to indicate that Welty returned to take other items from Burkhalter’s apartment and that his second entry into Burkhalter’s residence was not consented to.

Additionally, there was ample evidence of premeditation. Circumstances indicating premeditation include the manner in which the homicide was committed and the nature and manner of the wounds inflicted. Mines v. State, 390 So.2d 332 (Fla.1980); Larry v. State, 104 So.2d 352 (Fla.1958). The evidence before us was clearly sufficient to convict Welty beyond a reasonable doubt.

Furthermore, we find no merit to Welty’s contention that the trial court denied him a fair trial by excluding certain evidence proffered by Welty. The trial court has wide discretion in this regard, and a review of the entire record reveals that it did not abuse its discretion in this case. Additionally, we find no error in the admission of the photographs which depicted the injuries to the deceased victim’s neck bones. The medical examiner explained in detail why these photographs would be relevant and of extreme value to him in explaining the injuries of the deceased to the jury. The test of admissibility of these photographs is relevancy to an issue required to be proven in a case. Bauldree v. State, 284 So.2d 196 (Fla.1973); Young v. State, 234 So.2d 341 (Fla.1970). Applying this test of admissibility, we find the photographs were relevant. They assisted the medical examiner in explaining to the jury the nature and manner in which the wounds were inflicted upon the deceased.

Welty also contends that the trial court erred in denying his motion to suppress his statement made to detectives of the Winter Park Police Department. The trial court properly denied this motion to suppress. Prior to making a statement, Welty was repeatedly advised of his Miranda rights. This statement was in no way elicited by police interrogation, and the trial court correctly determined that Welty was fully advised of his Miranda rights and that he understood them and voluntarily waived them.

Although Welty now challenges a statement made by a witness as a comment on his right to remain silent, he failed to preserve this point for appeal by objecting to the statement and moving for mistrial. See Clark v. State, 363 So.2d 331 (Fla.1978). Moreover, we note that the comment objected to by Welty does not amount to a comment on his right to remain silent.

Although acknowledging that this Court has consistently held that allowing the State to proceed on alternative theories of premeditated murder and felony murder under an indictment charging premeditated murder does not violate due process, Welty urges that under the particular facts of this case, his due process rights were violated. We find no merit to his contention. See State v. Pinder, 375 So.2d 836 (Fla.1979); Knight v. State, 338 So.2d 201 (Fla.1976); Larry v. State.

As relates to Welty’s challenge to the excusal of venirewoman Egan on the basis of her views on capital punishment, we find that the trial court correctly followed the standards enunciated by the Supreme Court of the United States in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), when it excused Egan. See also Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980).

Welty also challenges his sentence of death on several grounds, some of which we find have merit. The jury returned an advisory recommendation of life imprisonment, but the trial court, finding no mitigating and six aggravating circumstances, imposed the death sentence.

We agree with the trial court’s finding that defendant created a great risk of death to many persons when he set fire to the victim’s bed. Setting the fire was clearly conduct surrounding the capital felony for which he is being sentenced. Mines v. State. There were six elderly people asleep in the building in which the victim’s condominium was located. This can be classified as many persons. Cf. Kampff v. State, 371 So.2d 1007 (Fla.1979). In King v. State, 390 So.2d 315 (Fla.1980), we held that by setting fire to the house in which the murder victim resided and in which no other person was present, the defendant had knowingly created a great risk of death to many persons because he should have reasonably foreseen that the blaze would pose a great risk to the neighbors as well as the firefighters and the police who responded to the call. In the present case, the fire posed a direct threat of death to those six elderly persons residing in the building as well as the neighbors, firefighters, and police responding to the call. The court also properly concluded that this murder was especially heinous, atrocious, or cruel.

We find, however, that the trial court erroneously doubled up the aggravating circumstances of commission of the murder while defendant was engaged in a burglary and commission of the murder for pecuniary gain since the evidence revealed that Welty entered without consent with intent to steal other items from the victim. 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). Although the trial court properly found that this capital felony was committed to avoid arrest, the State concedes, and we agree, that the court erred in also finding that the capital felony was committed to disrupt or hinder the enforcement of law.

Finally, Welty argues that the trial court erred in overriding the jury recommendation of life. We agree that under the standard imposed by this Court in Tedder v. State, the court erred in imposing the sentence of death. In Tedder, we said: “In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.” 322 So.2d at 910. Under the circumstances of this case, we believe that reasonable persons could differ. Although the trial court found no mitigating factors, there was evidence introduced by Welty relative to nonstatutory mitigating factors which could have influenced the jury to return a life recommendation. In light of the jury recommendation of life, we find that the sentence of death was inappropriate in this case. See also Neary v. State, 384 So.2d 881 (Fla.1980); Malloy v. State, 382 So.2d 1190 (Fla.1979); Brown v. State, 367 So.2d 616 (Fla.1979); Shue v. State, 366 So.2d 387 (Fla.1978).

Accordingly, we affirm the conviction but vacate the sentence of death and remand this cause to the trial court with directions to resentence Welty to life imprisonment without parole for twenty-five years.

It is so ordered.

OVERTON, ENGLAND and MCDONALD, JJ., concur.

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

ADKINS, J., concurs as to conviction and dissents as to punishment.

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

BOYD, Justice,

concurring in part and dissenting in part.

I concur with the affirmance of Welty’s conviction. I dissent, however, from the majority’s decision to reduce his sentence to life imprisonment. The sentence of death is appropriate to this case and there was no prejudicial error in the proceedings that culminated in the imposition of sentence.

When a capital felony is set apart, by the existence of one or more statutory aggravating circumstances, from the norm of capital felonies, there are no mitigating circumstances, and the sentencing judge has given due consideration to the recommendation of the jury, then a sentence of death should be affirmed by this Court. See Dobbert v. State, 375 So.2d 1069 (Fla.1979), cert. denied, 447 U.S. 912, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980); Tedder v. State, 322 So.2d 908 (Fla.1975); State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974).

The present case meets these criteria. I would affirm the sentence of death.

ADKINS, J., concurs.


author: ADKINS, Justice.

text:
    Bradley RUBEN, D.O., Petitioner, v. Jack K. KELLEY and Lina Kelley, his wife, Respondents.
    No. 58120.
    Supreme Court of Florida.
    July 9, 1981.
    Rehearing Denied Sept. 23, 1981.
    John Edward Herndon, Jr. of Thornton & Herndon, Miami, for petitioner.
    Gary D. Fox of Floyd, Pearson, Stewart, Richman, Greer & Weil, Miami, for respondents.
    John R. Lawson, Jr. of Dixon, Lawson & Brown, Tampa, for Florida Medical Ass’n, amicus curiae.
    Larry Klein and Janet W. Freeman, West Palm Beach, for The Academy of Florida Trial Lawyers, amicus curiae.

      David A. Barrett and C. Howard Hunter of Barrett & Bajoczky, Tallahassee, for Florida Patient’s Compensation Fund and Florida Medical Malpractice Joint Underwriting Ass’n, amici curiae.
   ADKINS, Justice.

By certiorari petitioner, defendant in the trial court, seeks review of an interlocutory order declaring section 768.44 et seq., Florida Statutes (1979), unconstitutional. We have jurisdiction. Art. V, § 3(b)(3), Florida Constitution (1972).

Plaintiffs filed a complaint for medical mediation against defendant Ruben on October 13, 1977. The mediation panel ultimately found two-to-one in favor of the defendant on August 2,1978, clearly within the ten-month limit provided by the mediation statute. On September 17, 1978, the plaintiffs instituted this action in the circuit court. Thereafter plaintiffs made a motion in limine to exclude the panel’s adverse finding from the trial, attacking section 768.44 et seq., as unconstitutional, both on their face and in their application. The motion was granted. Defendant seeks review of this interlocutory order.

The Court’s decision in Aldana v. Holub, 381 So.2d 231 (Fla.1980), declaring the statute unconstitutional, was rendered on February 28, 1980. Subsequently, this Court issued an order to show cause why the petition for certiorari should not be granted in this case.

The arguments of both parties initially centered on the constitutionality of section 768.44 et seq. Clearly, Aldana settled any issues in the instant case concerning the constitutionality of the Medical Mediation Act. However, that holding was expressly prospective in effect. The Court stated:

In any case where the written decision of the medical mediation panel has been filed with the clerk of the court on or before the date this decision is filed (Feb. 28, 1980), a party may introduce that decision in evidence.

381 So.2d at 238.

At issue in the instant case is the admissibility of the mediation panel’s finding in the circuit court action. However, considering Aldana, exclusion of the panel’s finding must be based on some ground other than the constitutionality of the law in general.

Defendant Ruben asserts that the circuit court’s order excluding the panel’s finding from the trial should be reversed, since the decision was filed with the clerk on August 7, 1978, obviously before February 28, 1980, and therefore is expressly admissible under the cited passage from Aldana. We agree.

The order of the trial judge is reversed and the cause is remanded for further proceedings consistent with this opinion. It is so ordered.

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


text:
    Cassie JOHNS, Appellant, v. Peggy Jo MAY, et al., Appellees.
    No. 58448.
    Supreme Court of Florida.
    July 23, 1981.
    Rehearing Denied Sept. 23, 1981.

      R. Stephen Miles, Jr. of Miles & Cumbie, St. Cloud, for appellant.
    James E. Foster of Fishback, Davis, Dominick & Bennett, Orlando, for appellees.
   ADKINS, Justice.

This is a direct appeal from a decision of the Circuit Court for the County of Osceola, Ninth Judicial Circuit, which upheld the constitutionality of section 222.06(1), Florida Statutes (1979). We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. (1972).

This case reaches the Court as the result of a denial of appellant’s motion for stay order, which motion sought to stay and enjoin the sheriff from carrying out the forced sale of appellant’s automobile. Prior to making this motion, appellant had filed an affidavit and inventory in an apparent attempt to comply with the requirements of section 222.06(1), Florida Statutes (1979), which provide as follows:

(1) When a levy is made by writ of execution, writ of attachment, or writ of garnishment upon any personal property, money, choses in action, or other property of a personal nature which may be exempt from levy and sale by any process upon which levy shall have been made, the debtor, if he wishes to claim such property as exempt from sale, as aforesaid, shall make or cause to be made, within 10 days from the date of the levy, an inventory of the whole of his personal property, affixing thereto true and correct cash valuations thereof; shall attach to such inventory an affidavit made by himself or his attorney or authorized agent that the inventory contains a true and correct list or schedule of all the personal property owned by him in this state, and the true cash value thereof; and shall in such schedule designate which property he claims to be exempt or wishes to have set aside as his exemption.

(Emphasis supplied.)

The notice of levy was given on November 20, 1979, indicating that appellant’s automobile would be sold on January 6, 1980. Appellant filed her affidavit and inventory with the court on December 10, 1979. Subsequently, she filed the motion for stay order, in which it was claimed that section 222.06(1) was void and unconstitutional insofar as it deprived her of a constitutional exemption from forced sale by limiting the period of time within which an exemption could be claimed. The court denied this motion. Appellant filed a motion for rehearing, adding to her original argument that the exemption from forced sale in article X, section 4, Florida Constitution, differed from the homestead exemption in article VII, section 6, Florida Constitution, in that there is no language in the former requiring the establishment of right thereto in a manner prescribed by law as is present in the latter. Although the court’s order on motion for stay order did not specify its reason for denial, appellant inferred that the court had relied on appellee’s contention at the original hearing that the two provisions were analogous.

The aforementioned constitutional provisions, in relevant part, are as follows:

SECTION 4. Homestead; exemption.—
(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by the head of a family.
(2) personal property to the value of one thousand dollars.

Art. X, § 4(a), Fla.Const.

SECTION 6. Homestead exemptions.—
(a) Every person who has the legal or equitable title to real estate and maintains thereon the permanent residence of the owner, or another legally or naturally dependent upon the owner, shall be exempt from taxation thereon, except assessments for special benefits, up to the assessed valuation of five thousand dollars, upon establishment of right thereto in the manner prescribed by law.

Art. VII, § 6(a), Fla.Const.

Appellant claims that section 222.06(1) arbitrarily and unreasonably deprives the head of a family of the constitutional right to a personal property exemption without due process of law and in violation of the equal protection guarantees of the state and federal constitutions. Appellee counters that there is a rational basis for the law, thus making it constitutionally sound.

In Horne v. Markham, 288 So.2d 196 (Fla.1973), this Court was confronted with a question of a similar nature, specifically whether the right to a homestead exemption from taxation provided for in article VII, section 6, Florida Constitution, was an absolute right or whether it was subject to statutory conditions, specifically those contained in section 196.131, Florida Statutes (1971), mandating the completion of the exemption form by March 1 of each year. We held that the statutory conditions were a legitimate exercise of a legislative prerogative enacted upon the authority of that part of section 6 specifically providing for the establishment of right thereto in the manner prescribed by law. We stated that the manner prescribed by law was contained in section 196.131 and that failure to comply with its directive constituted a waiver of the right to the exemption for that year.

This case, however, presents a slightly different situation from Horne. The constitutional provision at issue here does not contain a clause specifically granting the legislature the right to prescribe the manner of establishing entitlement. Article X, section 4, merely states that there shall be exempt personal property to the value of one thousand dollars. The question before the Court is whether this difference in constitutional language is significant.

Initially, it should be noted that the Court is not unmindful of its previous decisions concerning the personal property exemption. On various occasions we have held that this exemption is of a status equal to that of homestead exemption; West Florida Grocery Co. v. Teutonia Fire Insurance Co., 74 Fla. 220, 77 So. 209 (1917); that it could not be defeated by laches, McMichael v. Grady, 34 Fla. 219, 15 So. 765 (1894); and that it is at all times available to the debtor, Shollar Crate & Box Co. v. Passmore, 148 Fla. 466, 4 So.2d 530 (1941). All these cases were, however, decided prior to the enactment of chapter 79-396, Laws of Florida, which added the ten-day requirement to section 222.06(1).

These cases do not stand for the proposition that any law effecting the implementation of this provision is outside the realm of legislative power. Some procedure had to be established for the effectuation of the personal property exemption. The appropriate body to establish this procedure was the legislature. This has been done in section 222.06 by requiring the preparation of an inventory with the affixing of values, the preparation of an affidavit that the inventory contains a true and correct list, the designation of which property is claimed to be exempt, the filing of the inventory and affidavit in court, and the notice of contest. Without such a standardized procedure, it is difficult to imagine how this constitutional right could be effectuated.

Petitioner attaches importance to the failure of section 4 to contain a specific authorization that the manner of its implementation be the subject of general law. However, such language is not essential. The constitution is the framework of the government containing the general principles upon which the government must function. City of Jacksonville v. Continental Can, 113 Fla. 168, 151 So. 488 (1933). It is not designed to provide detailed instructions for the method of its implementation. This must of necessity be left up to the legislature.

The test to be applied to determine if a particular statute is in violation of the due process clause is whether it bears a reasonable relation to a permissible legislative objective and is not discriminatory, arbitrary, or oppressive. Lasky v. State Farm Insurance Co., 296 So.2d 9 (Fla.1974). We find that a reasonable relationship exists for this statute, to wit, the establishment of procedure whereby an individual will be afforded an opportunity to assert a right to a personal property exemption while at the same time providing an orderly mechanism for the holding of a sheriff’s sale. Without a time limitation a person claiming an exemption could wait until the day of the sale before claiming his exemption. The legislature may have thought that allowing the election to occur at such a late time would prove too disruptive. As a practical matter, advertising and storage can take approximately thirty days from the seizure of the property until the date of sale. We cannot say that there is no rational basis for such a temporal requirement.

The Court has considered appellant’s other arguments and believes them to be similarly without merit.

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

The judgment of the circuit court is affirmed.

It is so ordered.


author: McDonald, justice.

text:
    STATE of Florida, Petitioner, v. Richard Sylvester JAMES, Respondent.
    No. 59906.
    Supreme Court of Florida.
    July 23, 1981.
    Rehearing Denied Sept. 23, 1981.

      Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., Daytona Beach, for petitioner.
    Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for respondent.
   McDonald, justice.

The Fifth District Court of Appeal has certified the following question as being of great public importance:

Is a discovery deposition taken under Florida Rules of Criminal Procedure 3.220(d) by defendant’s counsel, with defendant present or with his presence waived, admissible in evidence against defendant at the trial of the criminal charge against him when the witness has died or is otherwise unavailable for trial, in the light of the decision of the United States Supreme Court in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).

The answer is no.

James was convicted of burglary, attempted sexual battery, and robbery. Defense counsel deposed the victim under Florida Rule of Criminal Procedure 3.220(d). The victim died before trial, and the state sought to introduce her discovery deposition at trial. The trial court allowed introduction of the deposition. The district court, relying on State v. Basiliere, 353 So.2d 820 (Fla.1977), reversed, but, upon consideration of Ohio v. Roberts, certified the present question.

Basiliere also involved the use of a discovery deposition in a trial before which the victim died. Basiliere was incarcerated and was not present at the deposition. We held under those conditions that use of the deposition at trial violated the United States Constitution’s Sixth Amendment Confrontation Clause and the Florida Rules of Criminal Procedure.

The state contends that Basiliere does not control the present case. First, it argues that Basiliere’s right of confrontation was violated because he was incarcerated and was not allowed to attend the deposition. James, on the other hand, was not incarcerated, and, under Roberts, his right of confrontation was not otherwise violated. Second, the state argues that Basiliere’s holding that the rules of criminal procedure do not allow discovery depositions to be used substantively at trial was based on the facts of Basiliere, which constituted a confrontation clause violation. Here, it is argued, such an interpretation need not be applied, because there has been no confrontation clause violation. Therefore, the rules should be construed to permit the instant use of a discovery deposition.

Under the present rules of criminal procedure, the deposition was used for an improper purpose. The rule plainly states that discovery depositions “may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness.” (Emphasis supplied.) Compare Fla.R.Crim.P. 3.220(d) (discovery depositions) and 3.190(j) (depositions to perpetuate testimony) with Fla.R. Civ.P. 1.330 (depositions in a civil trial). We hold that discovery depositions may not be used as substantive evidence in a criminal trial. Since this holding is dispositive of this case, we decline to rule on the assertion that the use of the deposition in this case violates the confrontation provision of the sixth amendment.

The certified question is answered in the negative, and this case is remanded to the district court for proceedings consistent with our holding.

It is so ordered.

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

ENGLAND and ALDERMAN, JJ., dissent.

      . James v. State, 400 So.2d 571 (Fla. 5th DCA 1980).

      . 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Roberts sustained an Ohio statute authorizing the use of preliminary hearing testimony at trial under limited conditions. The testimony so used in Roberts was for rebuttal only.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Petitioner, v. George Stephen BROWER, Respondent.
    No. 56654.
    Supreme Court of Florida.
    July 30, 1981.
    H. Glenn Boggs, Asst. Staff Counsel, The Florida Bar, Tallahassee, and Ronald R. Richmond, Chairman, Standing Committee on Unauthorized Practice of Law, New Port Richey, for petitioner.
    Vaughn C. Brennan, Eaton Park, for respondent.
   PER CURIAM.

In response to a petition of The Florida Bar this Court, under article XVI of the Integration Rule, required respondent to appear before a referee to show cause why he should not be found guilty of the unauthorized practice of law and found guilty of indirect criminal contempt of court.

The referee made the following findings and recommendations:

1. The Supreme Court and this referee have jurisdiction to hear this cause under Article V, Section 15, Florida Constitution.
2. This proceeding is conducted pursuant to the Integration Rule of The Florida Bar, Article XVI.
3. The respondent, George Stephen Brower, is not now, nor has he ever been, a member of The Florida Bar.
4. The Florida Supreme Court issued a Rule to Show Cause and Order Appointing Referee which commanded respondent to appear before the referee and show cause why he should not be held in contempt of the Supreme Court for unauthorized practice of law.
5. Respondent appeared in person and later, through appointed counsel, filed an answer with this referee, admitting some of the allegations contained in the Petition Against Unauthorized Practice of Law and denying others. In particular, respondent admitted to the following allegations:
VI(1). Leading customers seeking dissolution of marriage to rely on him to prepare, for a fee, legal documents which the customers then file in court....
VI(l)(b). Respondent prepared a petition for dissolution of marriage for Leon Washington Vann (case no. GCF-78-2844). Respondent reassured Mr. Vann that he had prepared dissolution documents for other persons and that there was no problem.
VI(l)(c). Respondent prepared dissolution of marriage documents for Anna Gail Grimes (case no. F78-2311) including a petition, sworn statement for constructive service, notice of action, financial statement, and motion for default. Respondent talked with Ms. Grimes, made notes in his own hand on a separate piece of paper, and then typed up the aforementioned documents.
The referee recommends that the respondent be permanently enjoined from the unauthorized practice of law. The following activities constitute the unauthorized practice of law and may not be carried out or conducted in Florida by the respondent, who is perpetually restrained and enjoined from:
a. Holding himself out as an attorney authorized to practice law in Florida,
b. Allowing members of the public to rely on him to properly prepare legal forms or legal documents affecting a customer’s legal rights,
c. Advising customers as to any legal remedy which might be available to them,
d. Assisting customers in preparing documents or forms necessary for submission to any court or governmental agency,
e. Orally asking or answering questions from customers regarding which specific documents or forms might be necessary for filing with a court or governmental agency to accomplish a customer’s objective, or how to properly fill out such papers, or where to correctly file such papers, or how to present additional information to a given court or governmental agency, and
f. Engaging in personal assistance regarding the customer’s needs, including correcting either errors or omissions on documents or forms prepared by said customers.
1. The referee recommends that the respondent, George Stephen Brower, be found guilty of indirect criminal contempt of the Supreme Court for violation of the Court’s rule prohibiting unauthorized practice of law, Integration Rule Article II, Section 2. This recommendation is based on a finding that petitioner has satisfied its burden of proof in this matter by virtue of the admissions of respondent set out in the Findings of Fact, paragraph 5, above. The referee further recommends that respondent be sentenced to sixty (60) days imprisonment, suspended as long as he does not violate the terms of the injunction.

The Court hereby approves the findings and recommendations of the referee, except insofar as the recommended injunction might apply to lay representation before non-judicial governmental agencies, as permitted by legislative provision and administrative rules. See The Florida Bar v. Moses, 380 So.2d 412 (Fla.1980); State ex rel. The Florida Bar v. Sperry, 140 So.2d 587 (Fla.1962).

This Court finds respondent guilty of indirect criminal contempt of court and withholds imposition of sentence for so long as he does not violate the injunction against the unauthorized practice of law in Florida.

It is so ordered.

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


text:
    Laverne BOWDEN, Appellant, v. STATE of Florida, Appellee. William Rush WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Nos. 57670, 57669.
    Supreme Court of Florida.
    July 30, 1981.

      Edward T. M. Garland of Garland, Nuc-kolls, Kadish, Martin & Catts, Atlanta, Ga., and James L. Harrison of Harrison and Snyder, Jacksonville, for appellants.
    Jim Smith, Atty. Gen., and Doris E. Jenkins, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   ADKINS, Justice.

Appellants were charged in a two-count indictment alleging that they had engaged in and conspired to engage in a violation of section 943.46, Florida Statutes (1977), The Florida Racketeer Influenced and Corrupt Organization (RICO) Act, and chapter 847, Florida Statutes (1977), concerning obscene literature and pornography. We have consolidated the appeals. Appellants entered pleas of nolo contendere after the trial judge ruled on the constitutionality of the statutes by denying appellants’ motions to dismiss. Appellants’ appeal is founded on a constitutional attack upon both statutes. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. (1972).

Appellants initially argue that the RICO Act is vague and overbroad, and must therefore be held unconstitutional. We disposed of a similar argument in the case of Moorehead v. State, 383 So.2d 629 (Fla.1980), and held the statute constitutional. Moorehead is controlling on this point.

Appellants secondly argue that the act is facially unconstitutional because it imposes strict liability without requiring criminal intent or knowledge, and because its sanctions are predicated upon the presumptively protected activities of free speech, press, and association. We disagree. The statute provides, inter alia, that “It is unlawful for any person employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity or the collection of an unlawful debt.” § 943.462(3), Fla.Stat. (1977). (Emphasis added.)

“Pattern of racketeering activity” is defined as:

engaging in at least two incidents of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents, provided at least one of such incidents occurred after the effective date of this act and that the last of such incidents occurred within 5 years after a prior incident of racketeering conduct.

§ 943.461(4), Fla.Stat. (1977). This definition of “pattern of racketeering activity” suggests that the similarity and interrelatedness of racketeering activities should be stressed in determining whether a “pattern of racketeering activity” exists. As used in this statute, the word “pattern” clearly requires more than accidental or unrelated instances of proscribed behavior. We construe the “pattern” element to require, in addition to similarity and interrelatedness of racketeering activities, proof that a continuity of particular criminal activity exists. A similar construction was given to “pattern” in the case of United States v. Stofsky, 409 F.Supp. 609, 614 (S.D.N.Y.1973), which was cited in United States v. Ladmer, 429 F.Supp. 1231, 1244 (E.D.N.Y.1977).

By requiring a continuity of criminal activity as well as a similarity and interrelatedness between these activities, the target of RICO Act prosecutions will be, appropriately, the professional or career criminal and not non-racketeers who have committed relatively minor crimes.

“Racketeering activity” is defined with much detail in section 943.461, Florida Statutes (1977). For a defendant to be conviet-ed of racketeering activity, in violation of section 943.462(3), it must first be established that the defendant has engaged in at least two instances of such activity (i. e., any crime chargeable by indictment or information under the provisions of section 943.461). Only after this “predicate crime” has been established, can the state proceed to the proof of the RICO Act violation.

Appellants’ assertion that “under this law the prohibited association with the ‘enterprise’ can be entirely innocent or unknowing,” is simply not correct. Nor is it true that “participation, directly or indirectly, in the ‘enterprise’ can occur without any intent ... that the condemned behavior relate to any ‘enterprise’.” In the case of State v. Whiddon, 384 So.2d 1269, 1271 (Fla.1980), we noted that the term “enterprise” was defined by statute and therefore the appellees were on notice as to that aspect of the charge. § 943.461(3), Fla.Stat. (1977). Sections 943.461 and 943.462 are not facially unconstitutional.

Appellants’ third argument is that the obscenity statute, chapter 847, Florida Statutes (1977), is unconstitutional. In the first instance, we held the statute constitutional in the case of State v. Kraham, 360 So.2d 393, 394 (Fla.1978). In the second instance, the argument raises questions of fact, which are not properly before this Court on appellants’ plea of nolo conten-dere. See Gissendanner v. State, 373 So.2d 898 (Fla.1979), and Hand v. State, 334 So.2d 601 (Fla.1976).

Accordingly, we affirm the decision of the trial court.

It is so ordered.

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

      . 943.461 Definitions.—As used in ss. 943.46-943.464:
      (1) “Racketeering activity” means to commit, to attempt to commit, to conspire to commit, or to solicit, coerce, or intimidate another person to commit:
      (a) Any crime which is chargeable by indictment or information under the following provisions of the Florida Statutes:
      1. Section 210.18, relating to evasion of payment of cigarette taxes.
      2. Section 409.325, relating to public assistance fraud.
      3. Chapter 517, relating to sale of securities.
      4. Section 550.24, s. 550.35, or s. 550.36, relating to dogracing and horseracing.
      5. Section 551.09, relating to jai alai fron-tons.
      6. Chapter 552, relating to the manufacture, distribution, and use of explosives.
      7. Chapter 562, relating to beverage law enforcement.
      8. Chapter 687, relating to interest and usurious practices.
      9. Chapter 782, relating to homicide.
      10. Chapter 784, relating to assault and battery.
      11. Chapter 787, relating to kidnapping.
      12. Chapter 790, relating to weapons and firearms.
      13. Section 796.01, s. 796.03, s. 796.04, s. 796.05, or s. 796.07, relating to prostitution.
      14. Chapter 806, relating to arson.
      15. Chapter 812, relating to [theft], robbery, and related crimes.
      16. Chapter 817, relating to fraudulent practices, false pretenses, fraud generally, and credit card crimes.
      17. Chapter 831, relating to forgery and counterfeiting.
      18. Chapter 832, relating to issuance of worthless checks and drafts.
      19. Chapter 837, relating to perjury.
      20. Chapter 838, relating to bribery and misuse of public office.
      21. Chapter 843, relating to obstruction of justice.
      22. Section 847.011, s. 847.012, s. 847.013, s. 847.06, or s. 847.07, relating to obscene literature and profanity.
      23. Section 849.09, s. 849.14, s. 849.15, s. 849.23, s. 849.24, or s. 849.25, relating to gambling.
      24. Chapter 893, relating to drug abuse prevention and control.
      25. Sections 918.12-918.14, relating to tampering with jurors, evidence, and witnesses.
      (b) Any conduct defined as “racketeering activity” under Title 18, United States Code, s. 1961(1)(A), (B), (C), and (D).
      (Footnotes omitted.)


author: McDONALD, Justice. ADKINS, Justice, ALDERMAN, Justice, ENGLAND, Justice,

text:
    Raleigh BORDEN, Appellant, v. STATE of Florida, Appellee.
    No. 58231.
    Supreme Court of Florida.
    July 30, 1981.
    Rehearing Denied Sept. 23, 1981.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and’ Mark Horn and Paul H. Zacks, Asst. Attys. Gen., West Palm Beach, for appellee.
   McDONALD, Justice.

Following a trial in which Raleigh Borden was found guilty of second-degree murder and false imprisonment, the trial judge sentenced Borden to terms of ninety-nine and five years, respectively. Relying on section 947.16(3), Florida Statutes (1979), the trial judge retained jurisdiction over the sentence. The appellant contended that this statute is unconstitutional, but the trial judge sustained it. We therefore have jurisdiction. Art. V, § 3(b)(1), Fla.Const. (1972).

Passed in 1978, this statute apparently was a response to rising general criticism that convicted felons were being released on parole too soon. The statute permits a review of parole decisions in certain instances and for a certain period of time. In Owens v. State, 316 So.2d 537 (Fla. 1975), this Court recognized the authority of the legislature to set conditions under which parole may be granted. We see no reason to retreat from that position now. The First District Court of Appeal recently addressed the constitutionality of this statute in Arnett v. State, 397 So.2d 330 (Fla. 1st DCA 1981). We agree with that court that section 947.16(3) is constitutional.

Borden, however, is entitled to a new trial because he is a beneficiary of our decision in Tascano v. State, 393 So.2d 540 (Fla. 1980). He specifically requested, and stated his reasons therefor, that the trial judge instruct the jury on the penalties for the crimes for which he was charged. The trial judge refused to do so. In Tascano we held that when a defendant makes a timely request for such an instruction, it is reversible error for the trial judge to omit that instruction. Also, in Tascano we declined to adopt the harmless error rationale of Murray v. State, 378 So.2d 111 (Fla. 5th DCA 1980). Borden has perfected this point on appeal.

The conviction is vacated, and this cause is remanded for a new trial.

It is so ordered.

SUNDBERG, C. J., and OVERTON, J., concur.

ADKINS, Justice,

concurs in part and dissents in part: “I would hold § 947.16(3), Fla.Stat. (1979) unconstitutional, but I concur in that portion of the opinion granting a new trial because of the failure to instruct on the penalty.”

ALDERMAN, Justice,

concurs in part and dissents in part: “I agree that section 947.16(3), Florida Statutes (1979) is constitutional and I would affirm the conviction. For the reasons stated in my dissent in Tascano v. State, 393 So.2d 540 (Fla. 1980) I do not believe that it was reversible error for the trial judge to omit the requested penalty instruction.”

ENGLAND, J., dissents with an opinion with which ADKINS and BOYD, JJ., concur.

ENGLAND, Justice,

dissenting.

I respectfully disagree with my colleagues with respect to the constitutionality of section 947.16(3), Florida Statutes (1979). In my view, the statute violates article II, section 3 of the Florida Constitution, which declares that a member of one branch of the government shall not exercise powers pertaining to another branch.

There is no dispute that section 947.16(3) accords to members of the judiciary a veto power over a prisoner’s release from parole during the first one-third of his sentence. Both before the statute was enacted, in all cases, and after the statute was passed, in cases where the judiciary elects not to interfere, however, the decision to grant parole is vested in an executive branch agency. See Marsh v. Garwood, 65 So.2d 15, 19 (Fla. 1953) (Parole and Probation Commission is “a statutory agency of the executive branch of the government”). This bifurcation of authority between the branches of government offends our organic document.

I am not persuaded by the Court’s reliance on Owens v. State, 316 So.2d 537 (Fla. 1975), a decision which I authored, for the proposition that the legislature may set conditions under which parole may be granted. There is a world of difference between conditions upon which parole may be granted — a pre-sentencing determination by the legislature which guides the judiciary in the exercise of its judicial function— and conditions which govern a prisoner’s release from a sentence which he or she has partially served. The latter, obviously, largely depends upon circumstances or facts not relevant to the imposition of sentence. Rather, it looks to other directives and guidelines which govern an executive branch agency in its assigned statutory roles. See §§ 947.13, .165, Fla.Stat. (1979).

I also find unpersuasive the state’s argument that trial judges are in the best position to determine a prisoner’s eligibility for release from incarceration. The Florida Constitution decrees otherwise in article IV, section 8(c), and the legislature has elected to create an executive branch agency to make the determination which is there authorized. It is wholly beyond our constitutional capacity to suggest that the judiciary inherently possesses the expertise which the legislature has properly assigned elsewhere.

I can think of no more clear violation of article II, section 3 of the Florida Constitution than the assignment of judges to the Parole and Probation Commission as voting members with veto rights. That is precisely what this statute has done, and irrespective of the asserted desirability of the statute in terms of penology or sociology, I can find no authority for its enactment under Florida’s constitutional separation of powers.

ADKINS and BOYD, JJ., concur.

      . § 947.16(3), Fla.Stat., reads as follows:
      (3) Persons who have become eligible for parole and who may, according to the objective parole guidelines of the commission, be granted parole shall be placed on parole in accordance with the provisions of this law; except that, in any case of a person convicted of murder, robbery, aggravated assault, aggravated battery, kidnapping, sexual battery or attempted sexual battery, incest or attempted incest, an unnatural and lascivious act or an attempted unnatural and lascivious act, lewd and lascivious behavior, assault or aggravated assault when a sexual act is completed or attempted, battery or aggravated battery when a sexual act is completed or attempted, arson, or any felony involving the use of a firearm or other deadly weapon or the use of intentional violence, at the time of sentencing the judge may enter an order retaining jurisdiction over the offender for review of a commission release order. This jurisdiction of the trial court judge is limited to the first third of the maximum sentence imposed. When any person is convicted of two or more felonies and concurrent sentences are imposed, then the jurisdiction of the trial court judge as provided herein shall apply to the first third of the maximum sentence imposed for the highest felony charged and proven. When any person is convicted of two or more felonies and consecutive sentences are imposed, then the jurisdiction of the trial court judge as provided herein shall apply to one-third of the total consecutive sentences imposed.

      . Because Borden’s crimes were committed in 1979 after the enactment of § 947.16(3), our recent opinion in State v. Williams, 397 So.2d 663 (Fla. 1981), is inapplicable.

      . See Fla.R.Crim.P. 3.390.