author: SUNDBERG, Justice. ADKINS, Justice,

text:
    J. Hyatt BROWN, etc., et al., Petitioners, v. George FIRESTONE, etc., et al., Respondents.
    No. 57959.
    Supreme Court of Florida.
    March 13, 1980.

      Talbot D’Alemberte and Donald M. Mid-dlebrooks of Steel, Hector & Davis, Miami, and William T. Ryan, Sharyn L. Smith and James E. Eaton, House of Representatives, Tallahassee, for petitioners.
    Jim Smith, Atty. Gen., and J. Kendrick Tucker, Deputy Atty. Gen., Tallahassee, for Secretary of State.
    S. Craig Kiser, Deputy Gen. Counsel and Michael Basile, Asst. Gen. Counsel, Tallahassee, for Comptroller of the State of Florida.
    John K. Aurell, Gen. Counsel, Tallahassee, for Governor Graham.
    Chesterfield Smith and Bill McBride of Holland & Knight, Tampa, Larry Levy of Dickinson, Levy & Taylor, James R. Eddy, Pompano Beach, Donald H. Reed, Jr., Boca Raton, and Ralph Turlington, Commissioner of Education, Tallahassee, for amici curiae.
   SUNDBERG, Justice.

By petition for writ of mandamus, Messrs. J. Hyatt Brown, Herbert F. Morgan, S. Curtis Kiser, and Ralph H. Haben, Jr., as citizens and taxpayers, question the constitutional validity of a number of Governor Bob Graham’s vetoes of provisions of chapter 79-212, Laws of Florida, known as the General Appropriations Act of 1979. Nominal respondents are George Firestone, Secretary of State, and Gerald Lewis, Comptroller of the State of Florida. Governor Graham was added as party respondent on November 1, 1979. Petitioners seek a judicial determination invalidating the Governor’s vetoes, and the issuance of an order requiring the Secretary of State to expunge the vetoes from the official records of the state and preventing the Comptroller from disbursing state funds based on such vetoes. Jurisdiction is asserted under article V, section 3(b)(5), Florida Constitution.

After receiving the Governor’s budget recommendations and conducting hearings, drafting bills and conferring through a conference committee, the Florida Legislature adopted by vote of each house Senate Bill 1297, now enacted into law as chapter 79-212. On June 28, 1979, the Governor filed with the Secretary of State his official message approving the General Appropriations Act subject to certain vetoes made under authority of article III, section 8, Florida Constitution. The vetoes here under consideration and the provisions in the Appropriations Act to which they presumably relate follow, numbered 1 through 6:

No. 1 Appropriations Act, p. 33
Department of Corrections
Major Institutions
Provided that the department shall phase back the inmate count at Glades Correctional Institution to the design capacity of 609 inmates prior to June 30, 1980. Except, however, that should the statewide inmate population exceed maximum capacity then Glades Correctional Institution may exceed design capacity.
250 Salaries and Benefits Positions 6,288 6,459
From General Revenue Fund . 72,614,708 74,029,307
From Correctional Work Programs Trust Fund 3,310,676 3,343,857
From Grants and Donations Trust Fund. 967,100 969,465
From Operating Trust Fund.. 84,675 84,700

Governor’s Veto Message, p. 6

On page 33 after item 249, under the heading, Major Institutions, is a proviso which deals with the prison population at Glades Correctional Institution. Since this proviso relates to an executive management issue and is on a subject other than appropriations, which is contrary to Article III, Section 12 of the State Constitution, this proviso, on page 33 after item 249, under the heading, Major Institutions, which reads as follows, is hereby vetoed:

“Provided that the department shall phase back the inmate count at Glades Correctional Institution to the design capacity of 609 inmates prior to June 30, 1980. Except, however, that should the statewide inmate population exceed maximum capacity then Glades Correctional Institution may exceed design capacity.”
No. 2 Appropriations Act, p. 69
University of South Florida Medical Center:
Fiscal Year Fiscal Year 1979-1980 1980-1981
ITEM
University of South Florida Medical Center
380 Salaries and Benefits Positions 540 555
From General Revenue Fund . 10,993,669 11,662,212
From Operation and Maintenance Trust Fund 48,213 43,412
381 Other Personal Services
From General Revenue Fund . 810,843 923,353
From Medical Center - Professional Medical
Liability Self Insurance Trust Fund. 25,000 25,000
From Operation and Maintenance Trust Fund 53,278 56,208
382 Expenses
From General Revenue Fund . 4,514,259 4,681,139
From Medical Center - Professional Medical
Liability Self Insurance Trust Fund. 168,500 • 168,500
From Operation and Maintenance Trust Fund 609,049 658,621
383 Operating Capital Outlay
From General Revenue Fund . 793,190 827,285
From Operation and Maintenance Trust Fund 73,805 150,168
Provided, however, $2,613,142 appropriated in item 382 in each fiscal year of the biennium is for the purpose of the teaching hospital program.

Governor’s Veto Message, p. 12

Included in item 382 on page 69 is $2,613,-142 for each year of the biennium from the General Revenue Fund for the teaching hospital program. This is set out in the proviso following item 383. At the time of establishment of the USF Medical School, it was understood by all concerned that a full program of medical education could be achieved by reliance on the facilities availa-

ble in the Tampa Bay community hospitals and the establishment of a state supported teaching hospital would not be necessary. Therefore, the proviso following item 383, on page 69, which constitutes an appropriation, and reads as follows, is hereby vetoed:

“Provided, however, $2,613,142 appropriated in item 382 in each fiscal year of the biennium is for the purpose of the teaching hospital program.”
No. 3 Appropriations Act, p. 152
Division of Corporations
Corporations, Division of
1131 Salaries and Benefits Positions 108 108
From General Revenue Fund . 957,613 978,882
Provided, that in addition to the funds appropriated in item 1131 for salaries and benefits for the Bureau of Uniform Commercial Code, if HB 1643 or SB 1256 is enacted into law, the Bureau of Uniform Commercial Code is specifically authorized to utilize up to $100,000 of the deficiency fund upon approval of the Department of Administration. Such deficiency funds may be used to supplement the positions provided by this bill and shall be approved by the Department of Administration, upon a showing of need by the director of the Division of Corporations based upon the following schedule: For every additional 5,000 Uniform Commercial Code documents filed in fiscal year 1980-81 above those documents filed in fiscal year 1979-80, one additional position.
1132 Other Personal Services From General Revenue Fund . 35,000 35,000
1133 Expenses From General Revenue Fund . 273,770 276,672
1134 Operating Capital Outlay From General Revenue Fund . 65,574 45,441
1135 Data Processing Services From General Revenue Fund . 677,051 608,101

Governor’s Veto Message, pp. 14-15

On page 152 following item 1131 is a proviso which reserves the use of $100,000 of the Deficiency Appropriation to the Department of State — Division of Corporations. This proviso is contrary to Section 216.231, Florida Statutes, which provides procedures for the release of Deficiency Funds upon approval of the Governor and three other members of the Administration Commission. My budget recommendation provided for a Deficiency Fund of $1,461,-130; however, the legislature only appropriated $400,000. It would not be prudent to reserve a portion of this deficiency appropriation and further limit the ability of the Administration Commission to respond to agency needs. If the Division’s workload should increase as is anticipated by the proviso, a deficiency request could be submitted to the Administration Commission for review on its own merits. Therefore, this proviso, on page 152 following item 1131, which reads as follows, is hereby vetoed:

“Provided, that in addition to the funds appropriated in Item 1131 for Salaries and Benefits for the Bureau of Uniform Commercial Code, if House Bill 1643 or Senate Bill 1256 is enacted into law, the Bureau of Uniform Commercial Code is specifically authorized to utilize up to $100,000 of the Deficiency Fund upon approval of the Department of Administration. Such deficiency funds may be used to supplement the portions provided by this bill and shall be approved by the Department of Administration, upon a showing of need by the Director of the Division of Corporations based upon the following schedule: for every additional 5,000 Uniform Commercial Code documents filed in Fiscal Year 1980-81 above those documents filed in Fiscal Year 1979-80, one additional position.”
No. 4 Appropriations Act, p. 186
Division of Recreation and Parks Natural Resources, Department of Recreation and Parks, Division of
6G Fixed Capital Outlay
Park Development
From Land Acquisition Trust Fund . 8,000,000 6,250,000
Provided, however, from funds appropriated in item 6G the following park projects for 1979-80 totaling $2,020,000, Cedar Key, Lake Rousseau, Manatee Springs, Kingsley Plantation, Wekiwa Springs, Bill Baggs, Hugh Taylor and the Barnacle, shall be considered as first priority projects by the Department of Natural Resources.
6H Fixed Capital Outlay Beach Front/Destin, FL From General Revenue Fund. 4,000,000
61 Fixed Capital Outlay Big Lagoon/Perdido Key Development From General Revenue Fund . 1,000,000 1,000,000
From Land Acqusition Trust Fund. 750,000 750,000
7 Fixed Capital Outlay
Land Acqusition
From Land Acqusition Trust Fund. 10,250,000 8,000,000

Governor’s Veto Message, p. 17

After Item 6G on page 186 is a proviso which earmarks $2,020,000 funding provided in a larger lump sum for Park Development for use at specific parks. I am not supportive of a funding plan which singles out a group of parks for special consideration. Therefore, the proviso on page 186 after item 6G which reads as follows, is hereby vetoed:

“Provided, however, from funds appropriated in item 6G the following park projects for 1979-80 totaling $2,020,000, Cedar Key, Lake Rousseau, Manatee Springs, Kingsley Plantation, Wekiwa Springs, Bill Baggs, Hugh Taylor and the Barnacle, Shall be considered as first priority projects by the Department of Natural Resources.”
No. 5 Appropriations Act, pp. 191-192
OB Fixed Capital Outlay to Boards of Trustees of the Community Colleges From Public Education Capital Outlay and Debt Service Trust
Fund. 27,192,240 2,573,035

From the funds appropriated in item OB $4,953,577 shall be allocated to the Boards of Trustees at Palm Beach Community College to construct the North Campus of Palm Beach Community College. In accordance with Section 235.221, Florida Statutes, Brevard Community College shall be advanced funded in an amount equal to the difference of their prorated entitlement and $1,000,000 to meet the matching requirement in item OJ.

From the cumulative total allocated to the Board of Trustees of the 28 community colleges there is to be provided $2,500,000 in the 1979-80 fiscal year and $2,500,000 in the 1980-81 fiscal year for library books and/or scientific and technical equipment. These funds shall be allocated based on the FTE’s assigned to each college.

The remaining funds appropriated in item OB shall be allocated and expended pursuant to Section 235.435, Florida Statutes.

Governor’s Veto Message, p. 21

Item OB, page 192, paragraph 3, proviso language, appropriates $2,500,000 for Community College scientific equipment and/or library books each year of the biennium. These items are of an operating nature and violate the constitutional intent of this fund. Therefore the proviso language following item OB, page 192, paragraph 3, which reads as follows, is hereby vetoed:

“From the cumulative total allocated to the Board of Trustees of the 28 community colleges there is to be provided $2,500,-000 in the 1979-80 fiscal year and $2,500,-000 in the 1980-81 fiscal year for library books and/or scientific and technical equipment. These funds shall be allocated based on the FTE’s assigned to each college.”
No. 6 Appropriations Act, pp. 192-193
OC Fixed Capital Outlay to the Board of Regents of the State University System From Public Education Capital Outlay and Debt Service Trust Fund. 30,936,021 28,730,637

From the cumulative total allocated to the Board of Regents of the State University System, $10,000,000 shall be provided in the 1979-80 fiscal year and $10,000,000 shall be provided in the 1980-81 fiscal year for library books.

From the above projects, exclusive of library books, the Board may allocate savings from lower than estimated project costs to emergency repairs, renovation, minor projects, building component replacement and handicap corrections.

Governor’s Veto Message, p. 21

Item OC, page 193, paragraph 2, of the proviso language appropriates $10,000,000 each year for library books. With concern, I have approved $10,000,000 for university library books in 1979-80, due to a large reduction in the appropriation for books in the E & G budget. In 1980-81, the operating appropriation is much larger and can be increased as necessary. Remaining is the fact that this item is of an operating nature and violates the constitutional intent of this fund. Therefore, the part of the proviso following item OC, page 193, paragraph 2, which appropriates $10,000,000 for library books for the 1980-81 fiscal year and which reads as follows, is hereby vetoed:

“From the cumulative total allocated to the Board of Regents of the state university system, . . $10,000,000 shall be provided in the 1980-81 fiscal year for library books.”

Petitioners maintain that by vetoing the above provisos and not the appropriations to which they relate, Governor Graham contravened his veto power under article III, section 8(a), which states:

Every bill passed by the legislature shall be presented to the governor for his approval and shall become a law if he approves and signs it, or fails to veto it within seven consecutive days after presentation. If during that period or on the seventh day the legislature adjourns sine die or takes a recess of more than thirty days, he shall have fifteen consecutive days from the date of presentation to act on the bill. In all cases except general appropriation bills, the veto shall extend to the entire bill. The governor may veto any specific appropriation in a general appropriation bill, but may not veto any qualification or restriction without also vetoing the appropriation to which it relates.

The Governor responds that his vetoes numbered two, four, five and six are constitutional because the provisos are in fact “specific appropriations” within the intendment of article III, section 8(a). He defends vetoes numbered one and three on the grounds that those provisos are not proper qualifications or restrictions but rather an unconstitutional attempt by the legislature to enact law on other subjects in an appropriations bill, or an attempt to repeal or suspend existing law in an appropriations bill, contrary to article III, section 12, Florida Constitution, which provides:

Laws making appropriations for salaries of public officers and other current expenses of the state shall contain provisions on no other subject.

The parties do not contest either standing or jurisdiction to bring this action. Regarding standing, this Court has long been committed to the rule that a party does not possess standing to sue unless he or she can demonstrate a direct and articu-lable stake in the outcome of a controversy. Petitioners here assail the constitutionality of the Governor’s actions as citizens and taxpayers. They claim no special or extraordinary injury. While it appears that their stake in the outcome of this controversy rests on an extremely slender reed, there is nevertheless recent authority supporting petitioners’ assertion of standing. In Department of Administration v. Horne, 269 So.2d 659 (Fla.1972), we held that a citizen and taxpayer could mount a constitutional attack upon the legislature’s taxing and spending power without having to demonstrate a special injury. Because this dispute implicates the relationship between gubernatorial veto power and the legislature’s taxing and spending authority, we believe that Department of Administration v. Horne confers standing to sue upon petitioners.

As to the propriety of entertaining this cause as a matter of original jurisdiction, the Court on two recent occasions has held mandamus to be a proper vehicle to challenge the constitutionality of provisions in a general appropriations act. In Dickinson v. Stone, 251 So.2d 268 (Fla.1971), we invalidated a portion of a general appropriations act which sought to transfer certain duties from one executive department to another because the provision involved a subject other than appropriations, contrary to article III, section 12, Florida Constitution. In Division of Bond Finance v. Smathers, 387 So.2d 805 (Fla.1976), then Governor Askew, doubtful of his authority to veto what he perceived to be an unconstitutional proviso, brought an action in mandamus as chairman of the Governing Board of the Division of Bond Finance to expunge the unconstitutional language from the general appropriations act. We granted a peremptory writ of mandamus and found the proviso unconstitutional without considering the propriety of the governor’s veto. In both cases we held mandamus to be the appropriate remedy because the functions of government would have been adversely affected without an immediate determination. In view of these recent authorities we are obliged to conclude that the case now before us also requires an immediate determination. The challenged vetoes have cast doubt upon the expenditure of substantial amounts of public funds. Because this lingering uncertainty hampers the state’s ability to finance ongoing state projects, the Court will exercise its discretion to consider this case.

We feel compelled to comment upon the peculiar posture in which this controversy presents itself. The legislature requests us to declare certain acts of the executive branch (that is, the vetoes) unconstitutional, to which the governor in effect counterclaims that his actions were prompted by unconstitutional actions of the legislative branch. In such a setting the question arises: to which side of the dispute does the Court first direct its attention, the legislative or the executive? If the Court looks first to the legislative provision vetoed by the governor and finds it unconstitutional, the propriety of the governor’s veto becomes immaterial. If, on the other hand, the Court looks first to the propriety of the governor’s veto and holds it to be constitutional, the validity of the legislative provision becomes immaterial. Thus in some instances the outcome of the case will be decided by which side of the issue is focused upon first. While this procedure may yield an equitable result in certain cases, it utterly fails to resolve the essence of the dispute now before us. Our task here is to define and delimit the relationship between the gubernatorial veto power and the legislature’s authority to enact general appropriation law. Because the two concepts are so finely interwoven, and because the legislative and executive branches of government appear genuinely to be in doubt as to their respective constitutional authority in this area, we will consider the validity of both the vetoes and the legislative provisos to which they relate. We chart this course in the hopes that our efforts will serve to illuminate and clarify the intrinsic elements of this complex problem.

The dynamics of political power do not work in a vacuum. The scope of authority of each branch of government is to a large extent shaped and given meaning by the grant of and limitation upon the power of the coordinate branches. So it is that in the area of gubernatorial. veto power and the enactment of general appropriation law, the constitutional authority of the legislative department is in part delimited by the scope of executive authority. Our first task, therefore, will be to outline and compare the general scope of authority conferred upon each branch of government in this field. From that comparison workable principles will emerge to govern the resolution of the specific issues before us today. We begin with the legislature.

The Florida Legislature is vested with authority to enact appropriations and reasonably to direct their use. In furtherance of the latter power, the legislature may attach qualifications or restrictions to the use of appropriated funds. In re Advisory Opinion to the Governor, 239 So.2d 1, 9 (Fla.1970). The authority to enact appropriations is tempered by the limitation in article III, section 12, Florida Constitution, that laws making appropriations shall contain provisions on no other subject. Section 12 was intended as a corollary to article III, section 6, which mandates that every law shall embrace but one subject and matter properly connected therewith. Hence a general appropriations bill must deal only with appropriations and matters properly connected therewith. See In re Advisory Opinion to the Governor; Green v. Rawls, 122 So.2d 10 (Fla.1960); Lee v. Dowda, 155 Fla. 68, 19 So.2d 570 (1944).

Two major considerations underlie the “one subject” requirement of article III, section 12. The first is the need to prevent “logrolling” in appropriations bills. Logrolling is

a practice under which the legislature could include in a single act matters important to the people and desired by the Governor and other matters opposed by the Governor or harmful to the welfare of the state, with the result that in order to obtain the constructive or desired matter the Governor had to accept the unwanted portion. The veto power of the chief executive was thereby severely limited if not destroyed and one of the intended checks on the authority of the legislature was able to be negated in practice.

Green v. Rawls, 122 So.2d at 13. The second reason behind the one subject requirement is to ensure the integrity of the legislative process in substantive lawmaking. The enactment of laws providing for general appropriations involves different considerations and indeed different procedures than does the enactment of laws on other subjects. Our state constitution demands that each bill dealing with substantive matters be scrutinized separately through a comprehensive process which will ensure that all considerations prompting legislative action are fully aired. Provisions on substantive topics should not be ensconced in an appropriations bill in order to logroll or to circumvent the legislative process normally applicable to such action. Similarly, general appropriations bills should not be cluttered with extraneous matters which might cloud the legislative mind when it should be focused solely upon appropriations matters.

Two principles logically follow from the above analysis. First, an appropriations bill must not change or amend existing law on subjects other than appropriations. This is, of course, subject to our statement in In re Advisory Opinion to the Governor, 239 So.2d at 10, that a general appropriations bill may make “allocations of State funds for a previously authorized purpose in amounts different from those previously allocated or [substitute] adequate specific appropriations for prior continuing appropriations.” Were we to sanction a rule permitting an appropriations bill to change existing law, the legislature would in many instances be able to logroll, and in every instance the integrity of the legislative process would be compromised.

Second, article III, section 12, will countenance a qualification or restriction only if it directly and rationally relates to the purpose of an appropriation and, indeed, if the qualification or restriction is a major motivating factor behind enactment of the appropriation. That is to say, has the legislature in the appropriations process determined that the appropriation is worthwhile or advisable only if contingent upon a certain event or fact, or is the qualification or restriction being used merely as a device to further a legislative objective unrelated to the fund appropriated? This test possesses the dispositive virtue of permitting the legislature reasonably to direct appropriation use without hampering the gubernatorial veto power or abusing the legislative process.

We now turn to the executive role in the appropriations field. Primary among executive checks on unfettered legislative power is the veto. It enables the governor to counteract legislative action which he considers to be contrary to the public interest, or if the veto is overridden, it provides him with assurance that the proposed measure is supported by a supermajority of the people’s representatives. The veto power also places the governor in a stronger bargaining position from which to seek revision or amendment of bills he finds objectionable.

But the veto power is intended to be a negative power, the power to nullify, or at least suspend, legislative intent. It is not designed to alter or amend legislative intent. For example, when the legislature designates under the Department of Education $5,000,000 for salaries, the governor cannot veto the appropriation for salaries and utilize the money for another purpose; the veto must, in effect, destroy the fund. Otherwise, the governor could legislate by altering the purpose for which the money was allocated. He could “create” another purpose to which to apply the appropriation.

The 1968 revision to our Florida Constitution modified the governor’s theretofore existing power to veto provisions in a general appropriations bill. Article IV, section 18 of the 1885 Constitution stated that:

Sec. 18. The Governor shall have power to disapprove of any item or items of any bills making appropriations of money embracing distinct items, and the part or parts of the bill approved shall be the law, and the item or items of appropriation disapproved shall be void, unless re-passed according to the rules and limitations prescribed for the passage of other bills over the Executive veto.

The corresponding section in the present constitution is article III, section 8(a), which provides:

Every bill passed by the legislature shall be presented to the governor for his approval and shall become a law if he approves and signs it, or fails to veto it within seven consecutive days after presentation. If during that period or on the seventh day the legislature adjourns sine die or takes a recess of more than thirty days, he shall have fifteen consecutive days from the date of presentation to act on the bill. In all cases except general appropriation bills, the veto shall extend to the entire bill. The governor may veto any specific appropriation in a general appropriation bill, but may not veto any qualification or restriction without also vetoing the appropriation to which it relates.

Legislative history clearly indicates that the revision contained in section 8(a) was prompted by this Court’s decision in Green v. Rawls, 122 So.2d 10 (Fla.1960). By examining the facts and precise holding of that case, we will be able to discern the reasons why the framers of the 1968 Constitution felt it necessary to revise article IV, section 18 of the 1885 Constitution.

The general appropriations bill at issue in Green contained the following items:

13. Corrections, Division of
a.General office
1. Salaries — including salary of $12,000 per
annum for the director and salaries of 25
employees... 143,580 $ 143,580
2. Expenses . 53,739 53,779
3. Operating capital outlay. 12,816 7,100
4. Special — discharge pay of inmates in an
amount not exceeding $15 per inmate and
transportation at not exceeding $25 per
inmate, as provided by law. 78,900 85,850
Subtotal (a). 289,035 $ 290,309
(Underscoring added.)
23. Forestry, Florida Board of
a. Salaries — including salary of $10,000 per an-
num for the state forester and salaries of 890
employees in 1959/60 and 891 employees in
1960/61 . $ 1,014,794 $ 1,005,004
b. Expenses . 952,013 921,542
c. Operating capital outlay. 466,704 216,774
Total of Item No. 23. $ 2,433,511 $ 2,143,320
(Underscoring added.)

The governor vetoed the underscored portion of item 13(a)(1) which reads “of $12,000 per annum” and the underscored portion of item 23(a) which reads “of $10,000 per an-num,” leaving undisturbed the remainder of items 13 and 23. The governor vetoed the provisions because he felt that the salaries so fixed were inadequate for the positions involved, and that with the quoted language removed from each item the Budget Commission could fix a larger salary for each employee. Suit was brought to challenge the validity of the governor’s vetoes on the grounds that the language stricken did not constitute “items” under article IV, section 18 of the 1885 Constitution.

Circuit Judge Hugh Taylor, acting in his capacity as chancellor in equity, surveyed the constitutional history of this area and concluded that the constitution envisioned that a general appropriations bill be composed of distinct items so as to permit the governor to fully exercise his veto power. He recognized, however, that a single “item” could be either general or quite specific depending upon the degree of particularization employed by the legislature. The determination of what constituted an item under article IV, section 18, would therefore depend upon the overall character of the appropriation.

Dealing specifically only with the first vetoed provision, Judge Taylor found that the item which properly could be vetoed was the $143,580 for salaries for Division of Corrections personnel. He regarded the language stricken by the governor as essentially a restriction of $12,000 from the $143,580 for the payment of the director’s salary. Because the governor’s vetoes extended to only part of an item, Judge Taylor held them to be unconstitutional.

Of considerably greater importance to Judge Taylor than the semantic distinction above was the effect of the challenged vetoes:

The power of the Governor to disapprove items of an appropriation bill is intended as a corollary to his power to veto all of other bills. It is the power to annul, to render invalid, to make void that “item” of appropriation which is disapproved. By common understanding, as well as by technical usage, the power to veto an appropriation means the power to prevent the expenditure of a certain part of the public funds for a certain purpose. To give effect to the veto in this case would not destroy any appropriation or render invalid any contemplated expenditure of public money. ... In practical operation the action of the Governor is not to veto any item of the appropriation bill. It is to amend the bill — to take money which the Legislature said should be used for one purpose and use it for another — to use money appropriated by the Legislature for the payment of 25 employees (other than the Director) for the purpose of increasing the salary of the Director beyond that which the Legislature expressly fixed as the amount of his salary. This is not a proper function of the veto power.

Rawls v. Green, No. 16,571 (Cir.Ct.Fla. Aug. 31, 1959).

Obviously, then, the creative use of the gubernatorial veto was the primary motivating factor behind Judge Taylor’s final judgment. The legislature had indicated its intent to allocate no more than $12,000 to the director. By vetoing the intent but retaining the appropriation, the executive veto revised the appropriations bill to permit a higher salary for the director. Legislative intent was not nullified, it was altered.

On appeal the Supreme Court of Florida disagreed with the chancellor’s conclusions. The Court identified the $12,000 to the director as an item which could be separately vetoed. Moreover, the Court held that the governor’s veto did not affect the amount of the salary appropriation.

The stage was thus set for the convening of the Constitutional Revision Commission to consider revisions to the 1885 Constitution. We believe the conclusion to be inescapable, and the minutes of the commission hearings so indicate, that the intent of the framers of the 1968 Constitution in revising article IV, section 18 of the Constitution of 1885 was to supersede this Court’s decision in Green v. Rawls and thereby to reinstate Judge Taylor’s analysis of the proper relationship between the executive veto power and legislative authority to enact appropriations. Equally clear is the fact that the framers’ overriding concern was to prevent the creative exercise of the gubernatorial veto. Legislative intent was to control the expenditure of funds unless the governor was willing to forsake the funds appropriated along with the legislative direction. The following colloquy between Representative Reed and Judge Hugh Taylor, by then a member of the Revision Commission, is taken from the minutes of a Commission hearing. Judge Taylor explains the significance of Green v. Rawls and how language offered as an amendment to section 8(a) by Commissioner O’Neill would change the effect of that decision:

MR. TAYLOR: Well, are you familiar with the decision that predicated Mr. O’Neill’s amendment?
MR. REED: The Rawls decision?
MR. TAYLOR: The Rawls decision, in which the appropriation read something like this: “For the Forestry Department, including a salary of X dollars for the state forester, a million dollars,” when the veto did not cover the million dollars, it merely covered the X salary for the state forester, so that the result was that the gross appropriation was not changed up or down one cent, but the use to which that appropriation could be put was changed. And the courts held that that was within the scope of the governor’s power to veto an item in the appropriation bill. And as I understand it, Mr. O’Neill’s idea was to eliminate that power on the part of the governor.
MR. REED: Well, I don’t think, Judge, it certainly isn’t my intention to allow, for instance, a legislative intent, whatever that is, direction, within the appropriations bill, to be stricken, and allow a particular appropriation for that item to remain.
MR. TAYLOR: Well, isn’t that exactly what happened in the Rawls case?
MR. REED: Yes, sir, at the Supreme Court level, it did. I believe at your level it was the decision—
MR. TAYLOR: But at my level that got washed out pretty quick.

16 Minutes to Constitution Revision Commission 209-210.

Notably, the language offered by Mr. O’Neill forms the basis of what is now section 8(a). The revision of section 8(a) was further refined by the legislature through the addition of the final phrase thereof.

In essence, the framers “upped the ante” on the governor. By revising article IV, section 18 of the 1885 Constitution, and most importantly by adding the qualification or restriction language of the last phrase of 8(a), the framers sought to make more difficult the governor’s decision whether to veto a particular provision. If the legislature makes a specific appropriation, even if it be substantial, and if the legislature attaches a rationally and directly related qualification or restriction to that appropriation, then section 8(a) requires the governor to make the hard choice whether to give up the appropriation entirely or to follow the legislative direction for its use. This is by no means a revolutionary concept, for the veto power necessarily contemplates that in some cases salutary aspects of a legislative act will be sacrificed because the overall effect of the act is contrary to the public interest.

Petitioners make much of the change in language from that in article IV, section 18, which stated that the governor could veto any “item,” to the language of article III, section 8(a), which provides that the governor may veto any “specific appropriation.” We perceive this to be a matter more of a change in terminology rather than one of fundamental importance. The framers of section 8(a) were not overly concerned with how large or how small a “specific appropriation” could be. Judge Taylor recognized in Green, and the minutes of the Commission so reflect, that the form of a specific appropriation will to a large extent be determined by the manner in which the legislature structures an appropriations bill. Once again, the principal motivation behind revision of article IV, section 18, was to prevent the governor from altering legislative intent by requiring him to veto both a qualification or restriction and the appropriation to which it relates.

Whether seeking to define “line item” or “specific appropriation,” the concept embodied in those terms is essentially the same. A specific appropriation is an identifiable, integrated fund which the legislature has allocated for a specified purpose. It is necessarily a fluid concept which to some extent will vary as the contours of a general appropriations bill change. Thus, if the legislature deems it expedient to allocate $50,000,000 to the Department of Corrections without breaking the allocation down to its components, then that lump sum would be a specific appropriation under article III, section 8(a). Conversely, if the legislature allocated $1,000,000 of the $50,-000,000 to maintenance of the corrections system, then that would be considered a specific appropriation. In each instance the legislature has designated an identifiable, integrated fund for a specified purpose. The fact that in one case the designation is broad and in the other specific is a matter of legislative judgment as to the requirements of each funding project.

In the context of a qualification or restriction, a specific appropriation is the smallest identifiable fund to which a qualification or restriction is or can be directly and logically related. In practical effect this means that in most cases where a qualification or restriction includes the setting apart of an identifiable sum of money, that fund will be considered a specific appropriation, since it will most likely be the smallest identifiable fund to which the qualification logically relates.

The implications are obvious. If the legislature deems it wise to appropriate a specific fund in a qualification or restriction, then the governor will be able to veto that qualification as a specific appropriation, just as he could have done had the legislature listed the fund as a separate line item. The fund mentioned in the qualification or restriction will of course also be nullified. This construction elevates substance to its rightful place over form. On the other hand, a qualification or restriction containing no express identifiable fund, if it logically relates even to a substantial specific appropriation, cannot be vetoed without the governor also vetoing the appropriation to which it relates. This affords the legislature substantial leverage, yet there is an internal check working upon the legislature in this regard. The fashioning of a substantial lump sum appropriation in order to avoid an executive veto would in some instances ill-serve legislative objectives, for it would merely give the governor greater latitude in directing expenditure of the money appropriated.

As noted previously, Governor Graham claims in part, as did Governor Askew in Division of Bond Finance v. Smathers, supra, that he has power to veto an unconstitutional qualification or restriction in an appropriations bill without vetoing the specific appropriation to which it relates. This cannot be. Under the Florida Constitution, the governor may exercise his veto power for any reason whatsoever. The governor must, however, exercise the veto power in a constitutional manner. He may, consistent with article III, section 8(a), either veto an entire bill, or in the case of a general appropriations bill, he may veto any specific appropriation. If he seeks to veto any qualification or restriction in a general appropriations bill, however, he must also veto the appropriation to which it relates. An attempted exercise of the veto power in any other manner is absolutely forbidden regardless of the motivation. The governor cannot act unconstitutionally to remedy a perceived unconstitutional act of the legislature.

Armed with these basic principles, we proceed into the vortex of the present controversy, namely, Governor Graham’s challenged vetoes. We will first consider the validity of each of the legislative provisos, and then turn our attention to the propriety of the Governor’s vetoes.

1. Glades Correctional Institution

Legislative Action

We conclude that the proviso concerning inmate population at Glades Correctional Institution is not a valid qualification. The appropriation to which this qualification most logically relates is the aggregate sum for major institutions, that is, items 250-254. The purpose of the appropriation is to fund the salaries, expenses and capital outlay for the major penal institutions in the State of Florida. The proviso is not rationally related to that end, nor does it implement, advance or enhance the purpose of the appropriation. Rather, it is designed to further a legislative objective (the phasing back of the inmate population at Glades) unrelated to the funding of all the major institutions.

Gubernatorial Action

We similarly conclude that the Governor’s veto of this proviso is invalid. Since there is no identifiable fund within the qualification, the Governor cannot claim that the qualification itself constitutes a specific appropriation. By vetoing the qualification without also vetoing the appropriation to major institutions, the Governor contravened his power under article III, section 8(a).

2. University of South Florida Medical Center

Legislative Action

In his veto message, infra at p. 658, Governor Graham indicates that the intent of this proviso is to authorize the establishment of a new state supported teaching hospital. The proviso itself, however, seems merely to direct the expenditure of $2,613,142 to the presumably extant “teaching hospital program.” The record fails to disclose which interpretation is correct. If the proviso is simply an allocation of funds to an existing program, then it is a valid qualification. It is rationally related to the purpose of the appropriation (the funding of the expenses of the South Florida Medical Center), and it is reasonable to assume that the qualification was a major motivating factor behind the structuring of item 382. If, on the other hand, the proviso envisions the construction of a new teaching hospital, it is clearly invalid, for the creation of such a capital outlay project is not rationally related to the expenses of an already existing medical center.

Gubernatorial Action

Regardless, Governor Graham’s veto of the qualification was proper. The smallest identifiable fund to which the qualification logically and directly relates is $2,613,142 in each fiscal year of t the biennium. Thus the qualification itself is a specific appropriation which the Governor could rightfully veto. This means, of course, that the expense appropriation in item 382 is reduced by $2,613,142 in each fiscal year. By his veto the Governor has “rendered] invalid [a] contemplated expenditure of public money,” in the vernacular of Judge Taylor.

3.Division of Corporations, UCC Filings

Legislative Action

The purpose of this qualification is to fund the salaries for additional personnel to be provided to the Division of Corporations upon the happening of certain contingencies. It enjoys a direct and rational relationship to the appropriation in item 1131 for the positions and salaries in the Division. But the qualification is invalid nonetheless. By its express terms it authorizes expenditure of deficiency funds upon the approval of the Department of Administration. This is in direct contravention of section 216.231, Florida Statutes (1979), which permits the release of deficiency funds only upon approval of the governor and three other members of the Administration Commission. Because the qualification suspends pro tanto the operation of substantive law in section 216.231, it cannot stand.

Gubernatorial Action

The $100,000 mentioned in this proviso does not comprise a specific appropriation. It is not an identifiable fund allocated for a specified purpose, but rather a contingent transfer of monies from the deficiency fund to item 1131. Were the Governor permitted to veto this language, there would be no reduction of money in either the deficiency fund or item 1131. Legislative intent would not be nullified, it would be altered.

4. Division of Recreation and Parks Legislative Action

We believe this to be a valid legislative qualification. The establishment of priorities is directly and rationally related to the appropriation for capital park improvements. The qualification implements the purpose of the appropriation, and in fact was probably a major motivating factor behind the structuring of the appropriation.

Gubernatorial Action

By the same token, we believe the Governor’s veto to be constitutional. The smallest identifiable fund to which the qualification relates is the $2,020,000 contained within it, thus the qualification comprises a specific appropriation. The Governor’s veto reduces the funds in item 6G by $2,020,000.

5. and 6. Library Books and/or Scientific Equipment for Community Colleges and State University System

Legislative Action

The proviso in 5 purports to appropriate $2,500,000 in each fiscal year of the biennium for library books and/or scientific equipment out of the cumulative total allocated to the Board of Trustees of the Community Colleges, while the proviso in 6 appropriates $10,000,000 each fiscal year for library books out of the total allocated to the Board of Regents of the state university system. The issue is whether these restrictions are unconstitutional because they are operating expenditures not permitted under the capital project language of article XII, section 9(a)(2) of the Florida Constitution.

Article XII, section 9(a)(2), Florida Constitution, requires that the revenues derived from gross receipts taxes be placed in a trust fund known as the “Public Education Capital Outlay and Debt Service Trust Fund” (PECO). The provision states that PECO funds are to be used for, inter alia, “direct payment of the cost or any part of the cost of any capital project for the state system theretofore authorized by the legislature.” Governor Graham submits that the term “capital project” in this section includes only expenditures for the acquisition, construction and capital maintenance of real property, and therefore does not contemplate the expenditure of PECO funds for library books and scientific equipment.

We disagree with the Governor’s interpretation and hold that PECO funds may be used to purchase library books and scientific equipment. While there are no decisions construing the term, the legislature has defined “capital project” in implementing article XII, section 9(a)(2). Section 235.-011(10), Florida Statutes (1979), states that “ ‘[cjapital project’ means sums of money appropriated to the Public Education Capital Outlay and Debt Service Trust Fund for the state system of public education.” In addition, section 235.435(3)(d), Florida Statutes (1979), specifically lists library books and equipment as a proper PECO expenditure. Although it is the intent of the people we must effectuate in construing a constitutional provision, the legislature’s view of its constitutional authority is highly persuasive. Gallant v. Stephens, 358 So.2d 536 (Fla.1978). We also note that the legislature enacted section 235.435(3)(d) in 1977, only three years after adoption of the constitutional amendment to article XII, section 9. A relatively contemporaneous construction of the constitution by the legislature is strongly presumed to be correct. Greater Loretta Improvement Ass’n v. State ex rel. Boone, 234 So.2d 665 (Fla. 1970).

Ironically, this analysis is in accord with the executive branch’s own interpretation of article XII, section 9(a)(2). Section 6A-2.205(5), Florida Code of Administrative Rules (1979), lists equipment and furnishings for new and existing educational facilities and supplies with at least a one-year life expectancy as appropriate capital outlay expenditures. See also section 6A-206(l)(b)2. In addition to these rules, the Department of Education publishes a manual entitled Financial and Program Cost Accounting and Reporting for Florida Schools, in which library books are listed as the first entry under “Capital Outlay,” account number 600.

Gubernatorial Veto

Be that as it may, the restrictions in both 5 and 6 clearly constitute specific appropriations which the Governor could properly veto. The smallest identifiable sum to which the restriction in 5 relates is $2,500,-000, and in 6, $10,000,000. Thus, the total allocation to the community colleges will be reduced by $2,500,000 in each fiscal year of the biennium, and the total allocation to the state university system will be reduced by $10,000,000.

We close with the admonition that it would be a serious mistake to interpret our acceptance of jurisdiction in this cause as a general willingness to thrust the Court into the political arena and referee on a biennial basis the assertions of power of the executive and legislative branches in relation to the appropriations act. Mandamus is an extremely limited basis for jurisdiction which traditionally has been, and will continue to be, employed sparingly. Shevin ex rel. State v. Public Service Comm’n, 333 So.2d 9 (Fla.1976); Heath v. Becktell, 327 So.2d 3 (Fla.1976); Dickinson v. Stone, 251 So.2d 268 (Fla.1971). Hence future attempts to invoke this Court’s jurisdiction on similar grounds will be viewed with great circumspection.

To that end we outline the proper shape which similar litigation should assume in the future. Any person, as citizen and taxpayer, may bring suit and have stricken a gubernatorial veto of a qualification or restriction in a general appropriations bill, even if the qualification or restriction is clearly unconstitutional, unless the governor can successfully demonstrate that the qualification or restriction itself constitutes a specific appropriation within the intendment of article III, section 8(a). In such a proceeding no issue may be raised as to the constitutionality of the qualification or restriction. That is, the governor cannot counterclaim that his action was prompted by an unconstitutional legislative act. In this context a mandamus action should be limited to narrow issues of law which do not require extensive fact-finding.

On the executive side of the ledger, any person, as citizen and taxpayer, may bring a declaratory judgment action to challenge the constitutionality of provisions in a general appropriations act. As exemplified in the discussion of the proviso relating to the South Florida Medical Center, the absence of a record is a major obstacle to a comprehensive resolution of a complex issue in this case. A declaratory judgment suit in circuit court will obviate this problem by enabling the parties to develop a full record upon which the court can base an intelligent decision.

Accordingly, we hold that the proviso language here at issue which is attached to the appropriations identified herein as 1 and 3 is null and void because it violates article III, section 12, Florida Constitution. We hold further that the vetoes identified herein as 2, 4, 5 and 6 are valid as being within the purview of the executive power granted by article III, section 8(a), and that the appropriations bill is reduced by the amount of the specific appropriations to which those vetoes relate.

It is so ordered.

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

ADKINS, J., concurs specially with an opinion.

ADKINS, Justice,

concurring specially.

I concur with that portion of the opinion which outlines the general veto power of the governor.

However, when the governor vetoes a provision which has been unconstitutionally included in a general appropriations bill by the legislature, the Court should declare the improperly included provision to be unconstitutional and void. Then, it would not be necessary for the Court to consider the issue of the constitutional validity of the governor’s veto.

In Lee v. Dowda, 155 Fla. 68,19 So.2d 570 (1944), the Court considered a challenge to the validity of the governor’s veto of a section of the 1943 General Appropriations Act. The propriety of the veto was justified to the Court on the ground that the legislature had unconstitutionally included the vetoed provision in the general appropriations bill. Interestingly, the constitutional provision with which the vetoed provision conflicted in Lee v. Dowda was the identical provision which is now known as article III, section 12:

Article III, Section 30: Laws making appropriations for the salaries of public officers and other current expenses of the State shall contain provisions on no other subject.

The Court held the provision to be unconstitutional and declined to reach the issue of the constitutional validity of the governor’s veto stating:

We have carefully considered the able arguments of counsel for the respective parties, including the citations of the decisions in other states as set forth in their briefs, but we find .nothing that would lead us to depart from the plain language of section 30 of article III of our Constitution and our previous opinions so clearly construing it. Our conclusion is that under said section 30 of Article III, the inclusion of section 14 in the general appropriation act of 1943 was not authorized, and that said section was unconstitutional and void. Therefore the plaintiffs in the court below were not and are not injured by the Governor’s veto of a section which was already void, (emphasis added).

Id. at 573.

Similarly, in Division of Bond Finance v. Smathers, 337 So.2d 805 (Fla.1976), the Court considered a challenge to the constitutionality of a proviso of the 1976 General Appropriations Act as well as the validity of the governor’s veto of the same proviso. Upon a finding that the proviso was unconstitutional, the Court said:

We need not consider the issue of the constitutional validity of the Governor’s veto because we hold the proviso to be unconstitutional.

Id. at 807. See also Dickinson v. Stone, 251 So.2d 268 (Fla.1971), where the Court even without a gubernatorial veto held that unconstitutional proviso language in the General Appropriations Act of 1971 should be expunged.

When the legislature includes in the general appropriations bill a provision which the Constitution does not permit, the Court should declare the provision unconstitutional and void. It is not, in such circumstances, necessary for the Court to consider the constitutional validity of the governor’s veto of the provision.

      . Renard v. Dade County, 261 So.2d 832 (Fla. 1972); Smith v. Ervin, 64 So.2d 166 (Fla. 1953).

      . In certain instances a party will not have standing unless he can show a “special injury.” Rickman v. Whitehurst, 73 Fla. 152, 74 So. 205 (1917).

      . This was the effect of our holding in Division of Bond Finance v. Smathers, 337 So.2d 805 (Fla.1976). See also Lee v. Dowda, 155 Fla. 68, 19 So.2d 570 (1944).

      . Art. Ill, § 6:
      Laws. — Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title. No law shall be revised or amended by reference to its title only. Laws to revise or amend shall set out in full the revised or amended act, section, subsection or paragraph of a subsection. The enacting clause of every law shall read: “Be It Enacted by the Legislature of the State of Florida:”.

      . We recognize that our decision in Thomas v. Askew, 270 So.2d 707 (Fla. 1972), could be interpreted as affording the legislature greater latitude than the above rule would permit. Stripped of its overly broad language, however, Thomas can be reconciled with our decision today. In Thomas we did nothing more than uphold that part of the 1972 General Appropriations Act which allocated “State funds for a previously authorized purpose in [an] amounts different from [that] previously allocated.” To the extent that the language in Thomas cannot be reconciled with this decision, it is hereby expressly disapproved.

      . It is of no small significance that Judge Taylor was a member of the Constitutional Revision Commission and instrumental in revision of article IV, section 18.

      . § 216.231(1), Fla.Stat. (1979):
      Any appropriation to the department which is classified as “emergency,” or “deficiency,” may be released only with the approval of the Governor and three other members of the Administration Commission. The state agency desiring the use of any such appropriation shall submit to the department application therefor in writing setting forth the facts from which the alleged need arises. The commission shall, at a public hearing, review such application promptly and approve or disapprove the same as the circumstances may warrant. All actions of the commission shall be reported to the legislative appropriation committees, and the committees may advise the commission relative to the release of such funds.
      (Footnotes omitted.)


source: Caselaw Access Project

author: PER CURIAM. OVERTON, Justice, SUNDBERG, Justice, ADKINS, Justice,

license: Public Domain

text:
    Douglas Ray MEEKS, Appellant, v. STATE of Florida, Appellee.
    No. 58618.
    Supreme Court of Florida.
    March 20, 1980.
    Rehearing Denied May 19, 1980.
    Stephen D. Stitt and June Rice, Gaines-ville, for appellant.

      Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahasee, for appellee.
   PER CURIAM.

This is an appeal from an order denying Douglas Meeks’ motions for post-conviction' relief under Florida Rule of Criminal Procedure 3.850. Appellant requested an eviden-tiary hearing on his motions and a stay of execution pending disposition thereof. Having reviewed the record and having heard oral argument, we concluded that appellant was entitled to a stay of execution pending disposition of this appeal. The stay of execution was entered on February 11, 1980, after oral argument on that date.

Appellant has been convicted of first-degree murder and sentenced to death on two separate occasions. On March 12, 1975, appellant was convicted and sentenced to death for the murder of Lloyd Walker (lower court No. 74-299 CF). This Court affirmed the conviction and sentence on October 28, 1976, reported at 339 So.2d 186 (Fla.1976). On May 6, 1977, we issued a Gardner order directing the trial judge to state whether his sentence was based on any information not known to appellant. On May 18, 1977, the judge responded that he had relied in part on a psychiatric report which had not been furnished to appellant. This Court remanded the cause to the trial court for an evidentiary hearing on the issue, at which time it was learned that appellant’s trial counsel had been present during the examination upon which the report was based. Appellant was afforded an opportunity to rebut the contents of the psychiatric report, but his testimony at the hearing only confirmed the report’s accuracy. On November 2, 1978, we reaffirmed the death sentence, 364 So.2d 461 (Fla.1978). Appellant sought review of his original conviction and sentence as well as the Gardner proceeding by petition for writ of certiorari to the United States Supreme Court, which was denied, 439 U.S. 991, 99 S.Ct. 592, 53 L.Ed.2d‘ 666 (1978).

On June 4, 1975, appellant was convicted and sentenced to death for the murder of Chevis Thompson (lower court No. 74-300 CF). We affirmed the conviction and sentence on July 21, 1976, 336 So.2d 1142 (Fla. 1976). In response to this Court’s Gardner order of May 6, 1977, the trial judge stated that his sentence had been based exclusively on information known to appellant. On January 11,1979, we issued an order declaring this case final.

Appellant filed motions for post-conviction relief pursuant to rule 3.850 of the Florida Rules of Criminal Procedure on December 11, 1979 (directed to case No. 74-299), and on December 31, 1979 (directed to case No. 74-300). On January 31, 1980, a hearing was held in the trial court to determine whether an evidentiary hearing should be granted. The trial judge denied the motion for evidentiary hearing. A second hearing was held on February 5, 1980, to determine whether a stay of execution should be granted and whether appellant was entitled to the relief requested in his rule 3.850 motions. Pro forma orders denying relief were filed on February 5, 1980. In an amended order dated February 8, 1980, the trial judge denied appellant’s motion for post-conviction relief in case No. 74-299.

Appellant alleges the following six grounds for relief in his rule 3.850 motion with respect to his murder conviction in case No. 74-299 CF: (1) that court-appointed counsel did not render effective assistance of counsel at trial, at the sentence hearing, or on appeal; (2) that defendant’s death sentence was imposed in violation of the sixth, eighth and fourteenth amendments to the United States Constitution because it was imposed upon the recommendation of a jury that was not required to be unanimous; (3) that the jury was selected through procedures that systematically excluded from jury service persons having scruples against the death penalty in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); (4) that defendant’s death sentence violates the equal protection clause of the state and federal constitutions because it was imposed pursuant to a pattern and practice of racial discrimination in capital sentencing; (5) that there was no evidence of premeditation in the charge of murder and that, therefore, defendant could not be convicted of felony-murder and the underlying felony upon which the murder conviction was based; and (6) that defendant is entitled to a re-sentencing hearing on his first-degree murder conviction because statutory mandates were not followed and the prosecutor was allowed to make improper argument to the jury in contravention of due process of law. Except for ground 5, appellant alleges the same grounds for relief with respect to his murder conviction in case No. 74-300 CF and, in addition, alleges (6) that the defendant is entitled to a new trial because the prosecutor was allowed to make improper and inflammatory comments at closing argument; (7) that the sentencing judge’s use of a court-ordered psychiatric examination violated defendant’s rights under the fifth, sixth, eighth and fourteenth amendments to the Constitution because defendant abandoned his insanity defense before trial; and (8) that defendant’s death sentence is unconstitutional as applied under the eighth and fourteenth amendments to the Constitution because it is part of a wanton and freakish pattern of imposition in the State of Florida. All except two of the foregoing issues were or could have been raised on direct appeal and therefore are foreclosed in this proceeding for collateral review. Adams v. State, 380 So.2d 423 (Fla. 1980). Henry v. State, 377 So.2d 692 (Fla.1979); Sullivan v. State, 372 So.2d 938 (Fla.1979). The two grounds cognizable for collateral attack here are the allegations of ineffective assistance of counsel and racial discrimination in capital sentencing (grounds 1 and 4 in both rule 3.850 motions).

In support of ground 1, appellant cites a number of specific instances in which counsel’s failure to act allegedly amounted to ineffective assistance of counsel at the trial, sentencing and appeal stages of both proceedings. Predicated on these specific allegations, appellant contends that counsel’s overall performance demonstrates that appellant was given only pro forma representation. We note first of all that a conviction is presumed to be valid. Therefore, when ineffective assistance of counsel is asserted, the burden is on the person seeking collateral relief to specifically allege and establish the grounds for relief and to establish whether these grounds resulted in prejudice to that person. Foxworth v. State, 267 So.2d 647 (Fla.1972), cert. denied, 411 U.S. 987, 93 S.Ct. 2276, 36 L.Ed.2d 965 (1973). Second, the appropriate test to be applied in determining whether defendant was afforded effective assistance of counsel is not “sham and mockery,” but whether counsel was reasonably- likely to render and did render reasonably effective counsel based on the totality of the circumstances. United States v. Gray, 565 F.2d 881 (5th Cir.), cert, denied, 435 U.S. 955, 98 S.Ct. 1587, 55 L.Ed.2d 807 (1978). This does not mean, however, that defendant must be afforded errorless counsel or that counsel will be judged ineffective by a standard based on hindsight. United States v. Fessell, 531 F.2d 1275 (5th Cir. 1976). Nor does this standard mean that counsel is to be judged ineffective by virtue of his failure to anticipate future developments in the law. Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); Davis v. Wainwright, 547 F.2d 261 (5th Cir. 1977).

Pursuant to a rule 3.850 motion, a prisoner is entitled to an evidentiary hearing unless the motion and the files and records in the case conclusively show that he is entitled to no relief. If the prisoner raises a matter that may properly be considered in a rule 3.850 motion, the trial judge reviewing the motion must either attach that portion of the case file or record which conclusively shows that the prisoner is entitled to no relief or grant an evidentia-ry hearing. Gunn v. State, 378 So.2d 105 (Fla. 5th DCA 1980); Giles v. State, 363 So.2d 164 (Fla. 3d DCA 1978); Payne v. State, 362 So.2d 688 (Fla. 2d DCA 1978). Based on our review of the record presented to this Court, we cannot say that appellant’s specific allegations of ineffective assistance of counsel, considered collectively, conclusively show a lack of merit so as to obviate the need for an evidentiary hearing into the matter.

With regard to ground 4, the court is not persuaded that appellant is entitled to an evidentiary hearing respecting his contention that Florida’s death penalty statute is imposed in an unconstitutionally discriminatory fashion.

Accordingly, to the extent that the trial court’s orders and amended order deny relief under rule 3.850 with respect to the ground of ineffective assistance of counsel, they are hereby reversed. The orders are in all other respects affirmed. This case is remanded to the trial court for a prompt evidentiary hearing on the question of ineffective assistance of counsel. The stay of execution previously granted by this Court on February 11, 1980, is dissolved.

It is so ordered.

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

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

SUNDBERG, J., concurs specially with an opinion, with which ENGLAND, C. J., concurs.

ADKINS, J., dissents with an opinion, with which BOYD, J., concurs.

OVERTON, Justice,

specially concurring.

I would totally reject the contention of the movant-appellant that a victim-oriented statistical factual basis may be submitted within the purview of Henry v. State, 377 So.2d 692 (Fla.1979), to show that Florida’s death penalty statute is imposed in an unconstitutional and discriminatory manner.

The appellant’s statistical allegations are based entirely on the race of the victim rather than the race of the offender. To try to statistically correlate offenders’ race with the race of their victims results in a mathematical nightmare which has no bearing on the actual conduct of the offender as the determining factor of who lives and who dies. We are obligated to review each case upon its facts and circumstances and determine whether or not the conduct of the offender justifies the imposition of the death penalty.

The appellant’s own statistical allegations clearly establish that this black appellant has not been prejudiced. The figures specifically reflect that of the 2,606 homicides committed by blacks, fifty-nine have resulted in the death penalty. On the other hand, of the 2,256 homicides committed by whites, seventy-two have resulted in the death penalty. These statistics reflect no disparity or discrimination. In my view, the statistical information submitted by appellant in this cause is similar to that rejected by the Fifth Circuit Court of Appeals in Spinkeliink v. Wainwright, 578 F.2d 582 (5th Cir. 1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979). There Spinkeliink submitted statistical evidence which reflected that “92 percent of the inmates on Florida death row had murdered white victims while only 8 percent had murdered black victims.” [Emphasis added.] 578 F.2d at 612. This data was held to be legally insufficient to establish a prima facie showing of racial discrimination. I conclude that the instant figures similarly fail to establish a factual basis for the proposition that our death penalty statute is being applied in a discriminatory manner or is not racially neutral. See Lewis, Mannle, Allen, and Vetter, A Post-Furman Profile of Florida’s Condemned — A Question of Discrimination in Terms of the Race of the Victim and a Comment on Spinkellink v. Wainwright, 9 Stetson Law Review 1 (1979).

ALDERMAN and McDONALD, JJ., concur.

SUNDBERG, Justice,

concurring specialty-

While I concur in the Court’s opinion and judgment in this case, I deem it appropriate to express the reason for my concurrence in the conclusion that appellant is not entitled to an evidentiary hearing regarding his contention that Florida’s death penalty statute is imposed in an unconstitutionally discriminatory fashion. The reason is that I do not believe appellant has made a sufficient preliminary showing to require such a hearing. Counsel for appellant urges us to adopt the test enunciated in Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), as a guide in determining whether our statute has been unevenly applied. Pursuant to that test it would be appellant’s task to show: (1) a marked statistical disparity over a significant period of time in the way the death penalty is imposed upon black and white capital defendants, and (2) that the capital sentencing procedure in Florida is susceptible of abuse or not racially neutral. If appellant introduced competent evidence in support of these two elements, he would have made a prima facie showing of discriminatory application of the death penalty, and the burden would then shift to the state to rebut appellant’s case. Id. at 494-95, 97 S.Ct. at 1280. See Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979); Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). Assuming, without deciding, that the Castaneda test is an appropriate analytical tool in this case, appellant has failed, even on a preliminary basis so as to justify an evidentiary hearing, to present a sufficiently compelling statistical showing over a significant period of time that Florida’s death penalty statute has been unconstitutionally applied. I would note incidentally that appellant’s statistical data is victim-oriented; there has been no showing of disproportionate black representation of those now residing on death row as a result of the operation of our capital sentencing statute, section 921.141, Florida Statutes (1979).

ENGLAND, C. J., concurs.

ADKINS, Justice,

dissenting.

The motion, the files, and the records in the case conclusively show that defendant is not entitled to relief. The trial judge properly denied an evidentiary hearing.

After meticulously picking through the record, appellate counsel has differed with the judgment of trial counsel in the manner in which certain portions of the trial were conducted. Therefore appellate counsel says trial counsel should be placed upon trial before the trial judge. The trial judge has carefully considered contentions of appellate counsel and decided that trial counsel rendered reasonably effective counsel based on a totality of the circumstances. The record disclosed this on its face, so the trial judge denied the motion. Appellate counsel now complains to us, saying the trial judge committed error. We have examined this record twice in the past, and our decision was not disturbed by the United States Supreme Court. The majority has been led into a quagmire of confusion and decided that still another hearing should be held.

Using general terms and without setting forth specific guidelines, the majority is telling the trial judge to try trial counsel. Even a defendant in a criminal case requires a more definite specification of charges before he is required to answer.

The guilt of the defendant is firmly established by the evidence. The trial judge justified his sentence of death in writing and provided this Court the opportunity for a meaningful review. We determined that the trial judge viewed the issue of life or death within the framework of the rules provided by statute. The Supreme Court of the United States agreed with us.

As stated in State v. Dixon, 283 So.2d 1 (Fla.1973), discrimination or capriciousness cannot stand where reason is required. This was an aggravated and indefensible crime. The alleged statistics gathered by appellate counsel do not change the nature of this crime nor do they have any bearing on whether this particular defendant should or should not receive capital punishment.

The citizens of our state, speaking through the legislature, have determined that capital punishment should be inflicted in certain instances. The Supreme Court of the United States has held that our form of procedure is constitutional. This Court has followed the guidelines set forth by the legislature and approved by the United States Supreme Court. If we continue to create new procedures, and cause more delays, the deterrence of capital punishment will be ineffective.

To be successful in his contention, the defendant would be required to show that the procedure under which a person is selected for a death sentence is susceptible to abuse or not racially neutral. Unless there is a scheme or conspiracy among the twenty state attorneys in Florida to seek death penalties primarily when a white victim has been murdered, then race-of-the-victim argument must fail under its own weight. Also, the imposition of the death penalty ultimately requires the concurrence of the trial judge, the Florida Supreme Court, and the Governor’s Executive Clemency Board. To be successful, the defendant must show that all of these officers participated in intentional or purposeful discrimination. As stated in “A Post-Furman Profile of Florida’s Condemned, etc.,” by Lewis, Mannle, Allen and Vetter, 9 Stetson Law Review 1 (Fall 1979), “it is thus unlikely that any defendant will be able to establish a prima facie case of purposeful discrimination based on a ‘race-of-the-victim’ hypothesis.”

Our system guards against discrimination in terms of the race of the victim and is not subject to attack on that basis.

Our responsibility is a tremendous one in capital cases. However, this defendant has received a fair and impartial trial, counsel was reasonably effective based on the totality of the circumstances, and there is a total absence of discrimination in the imposition of the death penalty.

In my opinion the stay order should be dissolved and the decision of the trial judge should be affirmed.

BOYD, J., concurs.

      . Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).

      . Rule 3.850 provides in pertinent part:
      If the motion and the files and records in the case conclusively show that the prisoner is entitled to no relief, the motion shall be denied without a hearing. In those instances when such denial is not predicated upon the legal insufficiency of the motion on its face, a copy of that portion of the files and records which conclusively shows that the prisoner is entitled to no relief shall be attached to the order. Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the prosecuting attorney of the court, grant a prompt hearing thereon, detérmine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant him a new trial or correct the sentence as may appear appropriate.

       Indeed, that the Castaneda analysis is appropriate in the context of an equal protection challenge to Florida’s death penalty statute is not without some doubt. See Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978).


author: ADKINS, Justice.

text:
    Robert John POKORNY, Howard E. Shuping, and Mary Shuping, his wife, Plaintiffs, v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF LARGO, Florida et al., Defendants.
    No. 53023.
    Supreme Court of Florida.
    April 3, 1980.

      John L. McFadyen of Lloyd & Henniger, St. Petersburg, for plaintiffs.
    Thomas T. Steele of Fowler, White, Gil-len, Boggs, Villareal & Banker, Tampa, for defendants.
   ADKINS, Justice.

We have for consideration questions of law certified to us by the United States Court of Appeals, Fifth Circuit, in accordance with the provision of Rule 9.510, Florida Rules of Appellate Procedure, formerly Rule 4.61, Florida Appellate Rules (1962).

Pokorny, Shuping, and Shuping’s wife, as plaintiffs, brought an action against the Federal Savings & Loan Association as defendant for causing an arrest. There was a verdict for the defense in the United States District Court and plaintiffs appealed. The United States Court of Appeals for the Fifth Circuit found that the case involved a question or proposition of the law of the state of Florida which was determinative of the cause and that there appeared to be no clear controlling precedents in the decisions of the appellate courts of the state of Florida. The statement of facts and the questions certified to us for consideration read as follows:

STATEMENT OF FACTS

Robert John Pokorny, a deaf mute who was visiting Florida with another deaf mute friend, Howard Shuping, and who had been driven to the offices of First Federal Savings & Loan Association of Largo, Florida, by Shuping, allegedly for the purpose of obtaining a coin bag, entered First Federal’s offices on March 13, 1973, and handed the teller a note which stated: “Please give me zipper bag”. Upon receiving the note, the teller informed Pokorny that the savings and loan company had no zipper bags but that a commercial bank across the street had such bags. Pokorny then leaned toward her and put his hand on his ear, and the teller repeated in a louder voice that First Federal did not carry zipper bags but that he could obtain them from the commercial bank across the street. Po-korny then pointed to the note again, “hard”. She again told him that First Federal had no zipper bags. Then Pokor-ny pointed toward the cash drawer. She looked at him and opened the cash drawer and looked back at him. He then pointed at the cash drawer again, and she “knew” it was a robbery.

Having decided that a robbery was in progress, the teller closed the cash drawer and decided to get some sort of bag to put the money in to give to Pokorny. She attempted to explain to him, “about three times”, that she had to leave her window to get a bag, but he “kept pointing at the note again”. She then left the window to obtain a bag and, as she left the window, she noticed that she was being watched intently by him. While kneeling at the cabinet to obtain the bag, she informed a co-worker that she thought she was being robbed. She returned to the window with a bag which had a lock on it, and she attempted to explain the problem to him, she then pressed a silent alarm, secured another bag, and returned to the window.

Upon returning to the window, the teller placed the bag on the counter-top and Pokorny then pulled back the note and wrote on it, “I will bring $2,500.00 of coin”. She then told him that First Federal would be happy to take any coins that he brought, but Pokorny continued to stand at the window, pointing at the note and turning from side to side in a nervous-like manner. The teller told Po-korny several times that she did not understand what he wanted and, after several minutes, she saw a customer approach and decided to take action to avert having a bystander involved in a possibly dangerous situation. She opened the drawer and reached for the money bag, but Pokorny took the bag and walked away at a rapid pace. No weapon was ever displayed to the teller, although she testified that Pokorny kept one hand in his pants pocket most of the time.

Immediately after the incident with the teller, the F.B.I. was telephoned by First Federal and informed that an attempted robbery had taken place. Pokor-ny and Shuping were subsequently apprehended by two F.B.I. agents. They were hand-cuffed and were then transported to Tampa where they were detained for approximately one hour and then released. No charges were filed against them by either state or federal authorities.

Pokorny, Shuping, and Shuping’s wife sued First Federal and its liability insurer for causing the arrest of Pokorny and Shuping, alleging that the actions of First Federal’s employees had been “negligent, reckless or intentional misconduct.” First Federal denied the material allegations, and the case was tried before a jury. Over the plaintiffs’ objection, the jury was instructed that First Federal was not to be found liable if its teller had, in the light of the facts available to her at the time of the incident, acted reasonably in believing Mr. Pokorny was attempting to rob First Federal. The jury returned a defense verdict, and the plaintiffs appealed.

QUESTIONS FOR THE SUPREME COURT OF FLORIDA

1. Did the actions of the employees of the defendant, First Federal Savings and Loan Association of Largo, Florida, constitute “direct procurement” of an arrest under the teachings of Johnson v. Weiner, 19 So.2d 699 (Fla.1944), and its progeny?

2. Do the rules governing arrest and imprisonment by private citizens apply in this ease?

3. If the rules governing arrest and imprisonment by private citizens are to apply in this case, is First Federal automatically liable in tort if, in fact, the plaintiffs did not commit a crime?

4. If the rules governing arrest and imprisonment by private citizens are to apply in this case, is First Federal automatically liable in tort if the plaintiffs demonstrate to the jury’s satisfaction that no crime in fact occurred?

5. If in fact no crime had been committed, was the reasonableness of the conduct of the employees of First Federal material to a determination of liability? Put another way, is a private citizen, who in good faith and with probable cause believes a felony to have been committed by an identifiable person, nevertheless liable in tort for procuring the arrest of that person if a jury subsequently determines that no crime had been in fact committed?

Pokorny v. First Federal Savings & Loan Association of Largo, 563 F.2d 763, 765-66 (5th Cir. 1977).

Plaintiffs argue that the defendant proximately caused the false imprisonment and unlawful detention of the plaintiffs and that the defendant is therefore liable. Defendant argues that the mere fact that a person’s communication to an officer may have caused the victims’ arrest did not make him liable when he did not in fact request any detention.

Plaintiffs rely primarily upon the case of Johnson v. Weiner, 155 Fla. 169, 172, 19 So.2d 699, 701 (Fla.1944), where the Court said:

To be liable in an action for false imprisonment, one must have personally and actively participated therein, directly or by indirect procurement. All those who, by direct act or indirect procurement, personally participate in or proximately cause the false imprisonment and unlawful detention are liable therefor.

In Johnson v. Weiner, supra, the defendant had sworn out a warrant for the arrest of Jack Johnson and had subsequently erroneously pointed out the plaintiff as the perpetrator named in the warrant. The defendant in Johnson not only requested a warrant but also identified the plaintiff. This amounted to a “request” for an arrest and constituted more than merely supplying information to law enforcement officers or accusing another of a crime.

Washington County Kennel Club, Inc., v. Edge, 216 So.2d 512 (Fla. 1st DCA 1968), relied upon by plaintiffs, involved a situation where the plaintiffs were initially detained in the defendant’s office against their will and were subsequently arrested by a deputy sheriff at the request and instigation of the defendant’s agent. Applying the test of Johnson v. Weiner, supra, the Court held that the defendant was guilty of false imprisonment in two instances: By itself unlawfully detaining the plaintiffs and by requesting the unlawful arrest by the deputy sheriff. The action of the private citizen constituted far more than merely supplying information to law enforcement officers or accusing plaintiffs of a crime.

Plaintiff also cites Jackson v. Biscayne Medical Center, Inc., 347 So.2d 721 (Fla.3d DCA 1977). In this case the Court held that a complaint stated a cause of action for false arrest where it alleged that the defendant hospital’s employees detained plaintiff against his will and procured his arrest by law enforcement officers.

In the case sub judice, the defendant, First Federal Savings & Loan Association, did not detain the defendant. The agent of the defendant represented to the F.B.I. that an attempted robbery had occurred. Plaintiffs say that there was no attempted robbery, but based on the conclusion of the defendant’s employees, the arrest was made. Plaintiffs urge that this clearly constitutes direct procurement of an arrest.

Defendant relies upon a general rule that a private citizen may not be held liable in tort where he neither actually detained another nor instigated the other’s arrest by law enforcement officers. See generally Annot. 21 ALR2d 643 (1952).

Some courts have consistently upheld the privilege of private citizens to provide, without fear of subsequent tort liability, information about suspected criminal activities to law enforcement officials, even where the information was mistaken, and the providing of such information constituted the principal cause of imprisonment. See Charles Stores Co. v. O’Quinn, 178 F.2d 372 (4th Cir. 1949); Harris v. Barham, 35 N.C.App. 13, 239 S.E.2d 717 (1978).

Restatement (Second) of Torts, § 45A, Comment (c) (1965) contains the following:

[I]t is not enough for instigation that the actor has given information to the police about the commission of a crime, or has accused the other of committing it, so long as he leaves to the police the decision as to what shall be done about any arrest, without persuading or influencing them.

In Manis v. Miller, 327 So.2d 117 (Fla.2d DCA 1976), the defendant, a private citizen, erroneously identified the plaintiff as the perpetrator of an armed robbery, leading to his arrest and imprisonment. In a subsequent tort suit brought by the mistakenly arrested suspect against the witness, the trial court awarded damages to the plaintiff despite the defendant’s good faith. On appeal the district court of appeal reversed and held:

[T]he trial court committed reversible error in finding in its final judgment that Florida law imposes liability for false imprisonment upon a witness making an honest, good faith mistake in identifying a criminal suspect where the identification contributes to arrest and prosecution of the suspect.'

327 So.2d at 118. In Manís the Court rested its decision upon the policy of encouraging private citizens to become involved in law enforcement:

Prompt and effective law enforcement is directly dependent upon the willingness and cooperation of private persons to assist law enforcement officers in bringing those who violate our criminal laws to justice. Unfortunately, too often in the past witnesses and victims of criminal offenses have failed to report crimes to the proper law enforcement agencies. Private citizens should be encouraged to become interested and involved in bringing the perpetrators of crime to justice and riot discouraged under apprehension or fear of recrimination.

Id. at 117.

We hold that under Florida law a private citizen may not be held liable in tort where he neither actually detained another nor instigated the other’s arrest by law enforcement officers. If the private citizen makes an honest, good faith mistake in reporting an incident, the mere fact that his communication to an officer may have caused the victim’s arrest does not make him liable when he did not in fact request any detention. See 14 Fla.Jur. False Imprisonment § 5 (1957).

In the case sub judice, the evidence does not show that defendant’s employees at any time detained either of the plaintiffs. Nor does the record show that the employees of defendant ever requested the F.B.I. to arrest either of the plaintiffs. The defendant’s employees reported a possible attempted robbery and identified plaintiffs as the suspects. As long as the employees acted reasonably, their action did not constitute “direct procurement of an arrest” as set forth in Johnson v. Weiner, supra.

Defendant relies upon the cases of Camp v. Silas, 113 Fla. 323, 151 So. 706 (Fla.1933), and Dodson v. Solomon, 134 Fla. 284, 183 So. 825 (Fla.1938). The facts of these cases are distinguishable. However, these decisions are in conformity with the general principle that a private citizen, making an honest, good faith effort in reporting an incident, cannot be held liable in a case based upon false imprisonment or malicious prosecution unless, it further appears that the defendant was personally involved in detaining the victim.

Florida courts have never recognized a separate tort for “negligently” swearing out a warrant for arrest. Such eases may be brought only in the form of civil suits for malicious prosecution. See, e. g., City of Miami Springs v. Carr, 319 So.2d 184 (Fla.3d DCA 1975); Wilson v. O’Neal, 118 So.2d 101 (Fla. 1st DCA I960), appeal dismissed 123 So.2d 677 (Fla.1960), cert. den. 365 U.S. 850, 81 S.Ct. 813, 5 L.Ed.2d 814 (1961). A plaintiff contending that he had been improperly arrested as the result of negligence in swearing out a warrant must bear the burden of establishing malice and want of probable cause. Mere negligence alone is insufficient. Accordingly, if defendant’s employees in the case sub judi-ce had sworn out a warrant for the arrest of plaintiffs Pokorny and Shuping, and if an arrest had been effected pursuant to that warrant, the plaintiffs would- have been unable to recover for mere negligence and would have been required to shoulder the elements of an action for malicious prosecution. The jury’s decision that defendant’s teller acted reasonably in believing Pokorny was guilty of the felony of attempting bank robbery would have been final on the elements of malice and probable cause.

We therefore hold that the actions of the employees of the defendant, First Federal Savings & Loan Association of Largo, Florida, did not constitute “direct procurement” of an arrest under the teachings of Johnson v. Weiner, supra. The first question is therefore answered in the negative.

Since the actions of the employees of defendant did not constitute “direct procurement” of the arrest of Pokorny and Shuping, and since they were arrested by law enforcement officers, the rules governing arrest and imprisonment by private citizens do not apply in this case. The second question is also answered in the negative.

Our answers to certified questions # 1 and # 2 obviously dispose of the case. Therefore we decline to reach answers to certified questions #3, #4, and # 5.

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