author: BOYD, Justice.

text:
    Michael MANSUR and Marie Grigsby, Petitioners, v. Mary G. EUBANKS, Jean M. Barnett, and Auto Owners Insurance Co., Respondents.
    No. 56597.
    Supreme Court of Florida.
    July 30, 1981.
    Ronald W. Ritchie of Reeves, Barfield & King, Pensacola, for petitioners.
    Donald H. Partington of Clark, Parting-ton, Hart & Hart, Pensacola, for respondents.
   BOYD, Justice.

This cause is before the Court on petition for certiorari to review the decision of the district court of appeal in Mansur v. Eubanks, 368 So.2d 645 (Fla. 1st DCA 1979). Jurisdiction is predicated on conflict of decisions. Art. V, § 3(b)(3), Fla.Const. (1972).

The decision of the district court was to affirm the summary judgments entered in favor of the respondents in this personal injury action brought on the ground of negligence.

Sometime in mid-July, 1976, Marie Grigs-by paid a deposit of $25 to Jean M. Barnett in order to reserve an apartment owned by Mrs. Barnett and Mary G. Eubanks. By their informal oral agreement, the apartment was to be available for occupancy, and the term of lease would commence, on August 1, 1976. On July 31, Grigsby began moving her possessions into the apartment. Michael Mansur, who lived in an adjacent apartment also owned by Barnett and Eu-banks, helped Grigsby move in. In an effort to get the gas-fueled appliances (stove and water heater) operational, Grigsby and Mansur opened the gas line from outside the apartment. Then they attempted to light the stove and smelled gas in the process. Then they proceeded to try to light the water heater. Mansur struck a match and an explosion occurred. According to his complaint, he was seriously injured.

The district court affirmed the summary judgment by reference to the rule of caveat lessee, under which doctrine it is held that once possession and control of leased premises passes to the tenant, the landlord is not liable for injuries cause by the condition of the leased premises. The court quoted from Brooks v. Peters, 157 Fla. 141, 145, 25 So.2d 205, 206-7 (1946), where this Court said:

It is established law that when a landlord delivers to the tenant possession and control of the demised premises, including the plumbing, drains, and appliances for heating, lighting, and power, the landlord is not liable for an injury to the property or person of the tenant or those on the premises in the right of the tenant, although such injuries are attributable to defects in such apparatus, appliances or fixtures. Thus a tenant may not hold a landlord liable for injuries caused by explosion of plumbing, or heating apparatus on premises, the possession and control of which have been surrendered to him in the absence of fraud or concealment. 32 Am.Jur. 624, 625, § 746.
The landlord’s liability is based on his right of control over the appliances and he is not liable for injuries for defects in appliances located on the leased premises if he does not reserve control thereof, and accordingly it has been held that he is not liable for defects in water pipes in an apartment when the only purpose of such pipes is to supply and distribute water for the apartment. On the other hand, he is liable for defects in pipes on the leased premises if he retains control thereof. Tiffany on Landlord and Tenant, Vol. 1, pages 644, 645, par. 92.
Where the landlord surrenders possession and control of the leased premises to the tenant, in the absence of fraud or concealment, the tenant assumes the risk as to the condition of the premises, including the heating, lighting apparatus, plumbing, water pipes, sewers, etc. In other words, the rule of caveat emptor applies, hence the landlord is not liable for any personal injuries or sickness of tenants, although attributable to the defects in the fixtures. See Mansell v. Hands, 235 Mass. 253, 126 N.E. 391, 13 A.L.R. 835, and annotations; Godbrecht v. Beckwith, 82 N.H. 415, 135 A. 20, 52 A.L.R. 858, and annotations.

The district court of appeal noted that its decision was in conflict with Alexander v. Fiftieth Street Heights Co., 334 So.2d 161 (Fla. 3d DCA 1976). There it was held that a lessor has a duty “to properly inspect the premises prior to the occupancy” and “to furnish reasonably safe premises to the lessee.” Id. at 163.

We resolve the conflict by overruling Brooks v. Peters and adopting the Alexander rule. We hold that the owner of a residential dwelling unit, who leases it to a tenant for residential purposes, has a duty to reasonably inspect the premises before allowing the tenant to take possession, and to make the repairs necessary to transfer a reasonably safe dwelling unit to the tenant unless defects are waived by the tenant. This duty may be modified by agreement of the parties.

After the tenant takes possession, the landlord has a continuing duty to exercise reasonable care to repair dangerous defective conditions upon notice of their existence by the tenant, unless waived by the tenant. This latter duty corresponds to the statutory warranty of habitability noted by Judge Ervin in his concurring opinion below. § 83.51(1), Fla.Stat. (1977); Mansur v. Eubanks, 368 So.2d at 650, n. 11 (Fla. App.) (Ervin, J., concurring).

We do not believe there are sufficient reasons to continue to completely insulate the landlord from liability. We live in an age when the complexities of housing construction place the landlord in much better position than the tenant to guard against dangerous conditions. See Old Town Development Co. v. Langford, 349 N.E.2d 744 (Ind.App.1976), superseded, 267 Ind. 176, 369 N.E.2d 404 (1977); Sargent v. Ross, 113 N.H. 388, 308 A.2d 528 (1973); Pagelsdorf v. Safeco Insurance Co., 91 Wis.2d 734, 284 N.W.2d 55 (1979).

In rendering summary judgment the trial court recited that there were no genuine issues of material fact but did not indicate what principle of law entitled the defendants to judgment in their favor.

The district court concluded that the pleadings and depositions showed that Grigsby had taken possession of the apartment by leave of the owners and that therefore the lease and the relationship of landlord and tenant had commenced by the time of the accident. The record shows, however, that there was a factual dispute as to this matter.

The district court also concluded that the explosion was caused by gas that escaped through a gap where the stove had been disconnected from the gas line. The actual cause of the explosion, however, and the questions of knowledge of and responsibility for the disconnected line were disputed matters which were never litigated due to the summary judgment.

The decision of the district court of appeal, affirming summary judgment, is quashed. We direct that the cause be remanded to the trial court for further proceedings consistent with this opinion.

It is so ordered.

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

ALDERMAN and McDONALD, JJ., concur in result only.


source: Caselaw Access Project

author: BOYD and OVERTON, Justices. ENGLAND, Justice,

license: Public Domain

text:
    CHIEF JUDGE OF the EIGHTH JUDICIAL CIRCUIT, Appellant, Petitioner, v. BOARD OF COUNTY COMMISSIONERS OF BRADFORD COUNTY, Appellee, Respondent.
    Nos. 58797, 58798.
    Supreme Court of Florida.
    July 30, 1981.

      Sam Spector and Cynthia S. Tunnicliff, of Spector, Tunnicliff & McCord, Tallahassee, for appellant, petitioner.
    Wilson W. Wright, Tallahassee, for appel-lee, respondent.
   BOYD and OVERTON, Justices.

The Chief Judge of the Eighth Judicial Circuit brings the decision of the District Court of Appeal, First District, reported as Board of County Commissioners v. Judicial Space in the Bradford County Courthouse, 378 So.2d 1247 (Fla. 1st DCA 1979), before the Court for review, having filed both a notice of appeal and a notice invoking our certiorari jurisdiction. We grant certiorari because the decision of the district court affects a class of constitutional officers. Art. V, § (3)(b)(3), Fla.Const. (1972).

The Bradford County Commission adopted a resolution reassigning space being used by the circuit and county courts to other users of the county courthouse. The Chief Judge of the Eighth Judicial Circuit, without holding an evidentiary hearing, then issued an injunction restraining the commission from interfering with the courts’ space without court approval.

On appeal, the district court recognized that the Chief Judge, as leading administrative officer for the court system within his circuit, had acted to preserve the courthouse space for uses he deemed essential to the efficient operation of the courts.

[A] court of general jurisdiction has inherent power to acquire and control facilities which are essential to secure and safeguard free and untrammeled exercise of its functions, but that inherent power cannot be exercised except for acquisition of necessary as distinguished from desirable quarters and space.

378 So.2d at 1248. The district court remanded the matter, however, and directed that an evidentiary hearing be held, to be presided over by a specially assigned judge from outside the Eighth Judicial Circuit. “The competing branches of government are entitled to develop the facts of this case.” 378 So.2d at 1248.

Generally, court claims to courthouse space necessary to the performance of official court functions are paramount. Dahnke v. People, 168 Ill. 102, 48 N.E. 137 (1897); State ex rel. Hottle v. Board of County Commissioners, 52 Ohio St.2d 117, 370 N.E.2d 462 (1977); State ex rel. Finley v. Pfeiffer, 163 Ohio St. 149, 126 N.E.2d 57 (1955); Zangerle v. Court of Common Pleas, 141 Ohio St. 70, 46 N.E.2d 865 (1943); see generally 20 Am.Jur.2d Courts § 39 (1965). The courts are not simply another agency of the state or county government but are a co-equal branch of government. As such, they have the inherent power to protect themselves in the performance of assigned duties and functions. Commonwealth ex rel. Carrol v. Tate, 442 Pa. 45, 274 A.2d 198, cert. denied, 402 U.S. 974, 91 S.Ct. 1665, 29 L.Ed.2d 138 (1971); see generally Nowak, Courts & the American System of Government in State Courts: A Blueprint for the Future 143, 144—45 (T. Fetter ed. 1978).

Under the present circumstances, we find the county commission has the burden of showing a lack of any reasonable necessity for continued court use of present space. We emphasize that the county commission is attempting to reduce and restrict the courts’ present use of existing space, as distinguished from the courts’ seeking additional space or renovation of existing space. In the latter case, the court would carry the burden of showing a reasonable necessity to justify additional or renovated space. Rose v. Palm Beach County, 361 So.2d 135, 138 (Fla.1978).

In the instant case, the county commission acted unilaterally to reallocate court-used space. The courts then responded unilaterally to protect their existing interest. When administrative views between two governmental branches conflict, we think the public interest will best be served by the public officials of each branch resolving differences in the spirit of cooperation, recognizing the duties, obligations, and responsibilities of the other. Only when that is not possible should a court proceeding commence which affords an opportunity for all interested parties to be heard. See Board of Supervisors v. Flatter, 268 N.W.2d 869 (Iowa 1978).

We agree with the district court of appeal that the county, if it desires, is entitled to an evidentiary hearing before a judicial officer from outside the circuit, at which the county’s burden of proof will be as expressed in this opinion. This cause is remanded for further proceedings not inconsistent with the views expressed herein.

It is so ordered.

ADKINS, ALDERMAN and MCDONALD, JJ., concur.

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

ENGLAND, J., dissents with an opinion.

ENGLAND, Justice,

dissenting.

I cannot subscribe to this expansion of the inherent powers of the judiciary. I would accord a neutral forum for the resolution of these types of disputes, and I would require a proper showing of respective needs without unduly prejudicing the non-judicial branches of government. The assignment of burdens by the majority does not do that.


author: ADKINS, Justice.

text:
    Harold C. KNIGHT, Petitioner, v. STATE of Florida, Respondent. James Lee ALLEN, Petitioner, v. STATE of Florida, Respondent.
    Nos. 58873, 58964.
    Supreme Court of Florida.
    July 30, 1981.
    Richard L. Jorandby, Public Defender and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for petitioners.
    Jim Smith, Atty. Gen., and Evelyn D. Golden and Phillip D. Havens, Asst. Attys. Gen., Daytona Beach, for respondent.
   ADKINS, Justice.

We have for review a decision of the District Court of Appeal, Fifth District (Knight v. State, 379 So.2d 1017 (Fla. 5th DCA 1980)), which allegedly conflicts with other decisions which place a mandatory duty upon the trial court to instruct on the penalties when so requested by the defendant.

Petitioner Knight was charged with breaking and entering and grand theft. At trial, a specific request was made by defendant for an instruction on the maximum penalty for each count. This request was denied. Defendant was found guilty, adjudged guilty, and sentenced. Upon appeal his conviction was affirmed with the statement: See Murray v. State, 378 So.2d 111 (Fla. 5th DCA 1980).

We also have for review a decision of the District Court of Appeal, Fifth District (Allen v. State, No. 78-1787 (Fla. 5th DCA Aug. 18, 1978)), which allegedly conflicts with other decisions making the giving of an instruction on penalties mandatory under the provisions of Fla.R.Crim.P. 3.390.

The defendant Allen, (petitioner here), was charged by information with robbery. At trial, a specific request was made by defendant for a jury instruction on penalties, but the instructions were not given. Defendant was found guilty by the jury, adjudged guilty, and sentenced. Upon appeal the District Court of Appeal, Fifth District, affirmed the conviction with the statement: See Murray v. State, 378 So.2d 111 (Fla.1980).

These petitions for certiorari were filed prior to the effective date of the 1980 amendment to article V, Florida Constitution. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. (1972). Further briefs are unnecessary.

We have quashed the decision in Murray v. State. See Murray v. State, 403 So.2d 417 (Fla.1981), for the reasons expressed in Tascano v. State, 393 So.2d 540 (Fla.1980).

In Tascano v. State we held that the decision would be applicable to all cases in which a jury trial is commenced on or after the effective date of the opinion. We then said: “the defendant, as well as all others who have preserved this point on appeal, receive the benefit of this interpretation of the rule.”

We accept jurisdiction in these cases, quash each of the decisions of the district court of appeal, and remand each cause with instructions to reverse the judgment of conviction and further remand same to the circuit court for a new trial.

It is so ordered.

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

ALDERMAN, J., dissents.


author: PER CURIAM.

text:
    James V. CAUSEY, et al., Petitioners, v. TRAVELERS INDEMNITY COMPANY, Respondent.
    No. 59152.
    Supreme Court of Florida.
    July 30, 1981.
    Craig M. Spanjers of Stanley, Wines & Smith, Auburndale, for petitioners.
    Dennis R. Ferguson of Holland & Knight, Tallahassee, for respondent.
   PER CURIAM.

We have for review the decision of the District Court of Appeal, Second District (Travelers Indemnity Co. v. Causey, 381 So.2d 1200 (Fla.2d DCA 1980)), which conflicts with Aetna Casualty and Surety Co. v. Ilmonen, 360 So.2d 1271 (Fla.3d DCA 1978). We approve the decision in Travelers Indemnity Co. v. Causey and overrule the decision in Aetna Casualty and Surety Co. v. Ilmonen.

It is so ordered.

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


text:
    STATE of Florida, Petitioner, v. FREEMAN, Michael D., Respondent.
    No. 59329.
    Supreme Court of Florida.
    July 30, 1981.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., Miami, for petitioner.
    Fred Pflaum of Ginsburg, Byrd, Jones & Pflaum, Sarasota, for respondent.
   PER CURIAM.

Conflict of decisions having been dispelled, the petition is denied, 382 So.2d 1307. Villery v. The Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1980).

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


author: ENGLAND, Justice, SUNDBERG, Chief Justice,

text:
    JERRY'S, INC., Petitioner, v. MARRIOTT CORPORATION, Respondent.
    No. 59379.
    Supreme Court of Florida.
    July 30, 1981.
    Eric B. Meyers and Gregory P. Borgogno-ni, Shutts & Bowen, Miami, for petitioner.
    R. Bruce Wallace, Jr., and James C. Pil-key, Taylor, Brion, Buker & Greene, Miami, for respondent.
   District Court of Appeal, 3d District — No. 79-1365.

On December 8, 1980, this Court entered its Order accepting jurisdiction and setting oral argument. We have now determined that the Court is without jurisdiction and, therefore, the Petition for Review is denied.

No Motion for Rehearing will be entertained by the Court.

BOYD, ALDERMAN and McDONALD, JJ., concur.

ENGLAND, J., concurs specially with an opinion.

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

OVERTON, J., dissents.

ENGLAND, Justice,

concurring specially.

I find no basis for the exercise of our discretionary jurisdiction here. Asserting decisional conflict with Shaw v. Shaw, 334 So.2d 13 (Fla.1976), and Westerman v. Shell’s City, Inc., 265 So.2d 43 (Fla.1972), is, I believe, unsound after April 1, 1980.

Nowhere in the district court’s decision is the legal principle expressed that district courts can reweigh evidence which has been presented to the trial court. Petitioner suggests, and apparently some of my colleagues agree, that the issue of reweighing “inheres” in the district court’s decision. My understanding of the 1980 constitutional change in our jurisdiction, however, is that decisional conflicts must be “express” and not inherent. I regret that some on the Court would turn back the clock to the days when our members selectively disagreed with the district courts, the very problem which prompted constitutional change in 1980.

SUNDBERG, Chief Justice,

dissenting.

Because I believe the District Court of Appeal impermissibly reweighed the evidence before the trial court to reach a contrary result, this case is in conflict with Shaw v. Shaw, 334 So.2d 13 (Fla.1976) and Westerman v. Shell’s City, Inc., 265 So.2d 43 (Fla.1972). Hence, there is jurisdiction in this Court and I must respectfully dissent.

ADKINS, J., concurs.

       England, Hunter & Williams, Constitutional Jurisdiction of the Supreme Court of Florida: 1980 Reform, 32 U.Fla.L.Rev. 147 (1980).


author: ALDERMAN, Justice.

text:
    STATE of Florida, Petitioner, v. Benjamin Frank KIRKLAND, Respondent.
    No. 59461.
    Supreme Court of Florida.
    July 30, 1981.

      Jim Smith, Atty. Gen., Tallahassee, Janet Reno, State Atty. and Ira N. Loewy, Asst. State Atty., Miami, for petitioner.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, Miami, for respondent.
   ALDERMAN, Justice.

We review the decision of the District Court of Appeal, Third District, in State v. Kirkland, 384 So.2d 1328 (Fla. 3d DCA 1980), which conflicts with Southworth v. State, 98 Fla. 1184, 125 So. 345 (1929). The question is whether the trial court erred in dismissing the first-degree murder indictment against Kirkland on the ground that double jeopardy barred the state from prosecuting him on this charge after he had already pled nolo contendere to a juvenile petition for delinquency based upon the lesser included offense of strong-armed robbery, where at the time he entered this plea, the offense of murder was not completed due to the fact that the victim had not yet died? The district court answered this question in the negative and affirmed the trial court’s dismissal of the indictment. We disagree and hold that Kirkland was not placed in jeopardy for the crime of first-degree murder. We therefore quash the district court’s decision.

On May 11, 1979, Kirkland committed a strong-armed robbery of an eighty-eight-year-old man who sustained a heart attack as a result of the robbery. The victim, in critical condition, was admitted to the hospital where he remained for two months until his death. Kirkland was arrested for the robbery on May 25, 1979, and the state attorney, on May 31, 1979, filed a petition for delinquency charging strong-armed robbery and a motion for order waiving jurisdiction to the adult criminal division of the circuit court. The State withdrew its motion to waive jurisdiction on July 5, 1979, and Kirkland then entered a plea of nolo contendere to the petition for delinquency. Sentencing was set for July 19, 1979. On July 19, 1979, Kirkland was committed to the Department of Health and Rehabilitative Services.

The victim of the robbery died eleven days after Kirkland’s plea had been accepted by the court. The matter was then presented to the Dade County grand jury on August 1, 1979, and the grand jury returned an indictment charging first-degree murder. The State concedes that the sole basis for this first-degree murder charge is the theory of felony murder.

Kirkland moved to dismiss the indictment on the ground that the double jeopardy clause of the fifth amendment to the constitution of the United States barred his prosecution for felony murder. The trial court dismissed the indictment on this basis, and the district court affirmed.

Initially, we point out that this case does not implicate our holding in State v. Pinder, 375 So.2d 836 (Fla.1979), wherein we held that a defendant could not be convicted and punished for both first-degree felony murder and the underlying felony where the evidence to sustain the murder conviction is furnished solely by proof that the killing occurred as a result of the commission of the underlying felony. Pinder did not address the question presented in this case where the victim is alive at the time the defendant pleads nolo to the felony. Although the trial court and the district court relied on Pinder, Kirkland does not contend that this case is controlled by Pinder.

Kirkland, also, does not contest the continued viability of our holding in South-worth v. State but rather objects to applying this holding to the present ease on the basis that the facts before us are distinguishable. In Southworth, the victim of a felony murder was still living at the time the defendant was convicted of the felony which later resulted in the victim’s death, and, thus, at the time of the robbery conviction, the murder had not been committed. We held that the conviction of the robbery was not a bar to an indictment for the crime of murder and explained:

At the time of the conviction for robbery, Wells was still living, and the crime of murder had not been committed. The force had been inflicted upon the body of Wells, but his death had not ensued. The force was acting to produce its effect, and the defendant was as much responsible for its natural and necessary result as if he had all the while been pressing it upon the body of his victim. When death was caused by that force, a new and distinct crime was consummated by the defendant, of which he was not before guilty, and for which he could not have been convicted at the time of the first prosecution. The offenses are not the same in fact, and are not identical. [Cases omitted.]
When, after the first prosecution, a new fact supervenes, for which the defendant is responsible, which changes the character of the offense, and, together with the facts existing at the time, constitutes a new and distinct crime, a conviction of the first offense is not a bar to an indictment for the other distinct crime. State v. Littlefield [70 Me. 452] supra; 8 R.C.L. 148.

125 So. at 347.

Our ruling in Southworth, as Kirkland concedes, is in harmony with, federal authority. In Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912), the victim of an assault and battery died after defendant had been found guilty of the assault and battery. He was then charged and convicted of the crime of homicide. The Supreme Court of the United States rejected his claim of double jeopardy and said:

The homicide charged against the accused in the Court of First Instance and the assault and battery for which he was tried before the justice of the peace, although identical in some of their elements, were distinct offenses both in law and in fact. The death of the injured person was the principal element of the homicide, but was no part of the assault and battery. At the time of the trial for the latter the death had not ensued, and not until it did ensue was the homicide committed. Then, and not before, was it possible to put the accused in jeopardy for that offense.

223 U.S. at 448-49, 32 S.Ct. at 251. In Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), the Supreme Court held that the fifth amendment forbids prosecution and cumulative punishment for a greater and lesser included offense but acknowledged that the rule announced in Diaz was a viable exception to this rule. It stated:

An exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence. See Diaz v. United States, 223 U.S. 442, 448-449 [32 S.Ct. 250, 251, 56 L.Ed. 500] (1912); Ashe v. Swenson, supra [397 U.S.] at 453 n. 7 [90 S.Ct. 1189, at 1199, 25 L.Ed.2d 469] (Brennan, J., concurring).

432 U.S. at 169 n. 7, 97 S.Ct. at 2227.

In Jeffers v. United States, 432 U.S. 137, 151-52, 97 S.Ct. 2207, 2216, 53 L.Ed.2d 168 (1977), the Supreme Court stated:

The rule established in Brown, however, does have some exceptions. One commonly recognized exception is when all the events necessary to the greater crime have not taken place at the time the prosecution for the lesser is begun. See Brown v. Ohio, post [432 U.S.] at 169 n. 7 [97 S.Ct. at 2226]; Blackledge v. Perry, 417 U.S. 21, 28-29, and n. 7 [94 S.Ct. 2098, 2102-2103, 40 L.Ed.2d 628] (1974); Diaz v. United States, 223 U.S. 442 [32 S.Ct. 250, 56 L.Ed. 500] (1912). See also Ashe v. Swenson, 397 U.S. 436, 453 n. 7 [90 S.Ct. 1189, 1199, 25 L.Ed.2d 469] (1970) (Brennan, J., concurring). This exception may also apply when the facts necessary to the greater were not discovered despite the exercise of due diligence before the first trial. Ibid.

See also Illinois v. Vitale, 447 U.S. 410, 420 n. 8, 100 S.Ct. 2260, 2267, 65 L.Ed.2d 228 (1980).

Kirkland contends, however, that the fact that he was allowed to plead to the robbery charge at a time when the robbery victim lay in the hospital in critical condition and was not expected to live takes this case out of the scope of South worth and presents a case of prosecutorial manipulation. We disagree with this contention. Neither the trial court nor the district court found pros-ecutorial manipulation, and the record before us does not demonstrate prosecutorial manipulation.

We hold that the rule announced in South worth applies to the present facts and that, therefore, the State is not barred by the double jeopardy clause from prosecuting Kirkland for first-degree murder.

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

It is so ordered.

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

ADKINS, J., dissents.


text:
    James R. ROBERTS, Petitioner, v. John NOLAN, Jr., Respondent.
    No. 59471.
    Supreme Court of Florida.
    July 30, 1981.
    Larry Klein and Kocha, Houston & Wilbur, West Palm Beach, for petitioner.
    Edna L. Caruso, West Palm Beach, and Stephen C. McAliley of Brennan, McAliley, Hayskar & McAliley, West Palm Beach, for respondent.
   PER CURIAM.

The Court having previously accepted this case for review, 383 So.2d 945, upon further consideration we have concluded that we do not have jurisdiction. Therefore, the petition for review is denied.

It is so ordered.

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

ADKINS and McDONALD, JJ., dissent.


text:
    STATE of Florida, Petitioner, v. Louis RUSSELL, Respondent.
    No. 59495.
    Supreme Court of Florida.
    July 30, 1981.

      Jim Smith, Atty. Gen., and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for petitioner.
    No appearance for respondent.
   PER CURIAM.

Conflict of decisions having been dispelled, the petition is denied, 386 So.2d 285. Villery v. The Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1980).

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


text:
    THE FLORIDA BAR, Complainant, v. Arthur J. WOLFSON, Respondent.
    Nos. 59521, 60851.
    Supreme Court of Florida.
    July 30, 1981.
    John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel, and John A. Boggs, Asst. Staff Counsel, Tallahassee, Paul A. Gross, Bar Counsel, Miami, The Florida Bar, and Douglas Lyons, Chairman, Grievance Committee 11 G, Miami, for complainant.
    William John Mason, Miami, for respondent.
   PER CURIAM.

These consolidated petitions for review bring to us the reports of two referees who have found Arthur J. Wolfson guilty of misconduct warranting discipline. The first referee found Wolfson guilty of violating Disciplinary Rules 1-102(A)(4) (engaging in conduct involving dishonesty), 1 — 102(A)(5) (engaging in conduct that is prejudicial to the administration of justice), 1-102(A)(6) (engaging in any other conduct that adversely reflects on one’s fitness to practice law), 6-101(A)(3) (neglecting legal matters entrusted to him), 9-102(A) (prohibiting commingling of clients’ funds with those of the attorney) and 9-102(B)(4) (requiring the prompt payment to the client of all funds the client is entitled to receive). For these multiple infractions, the referee recommended that Wolfson be suspended for six months and thereafter until he can prove his rehabilitation.

The second referee found Wolfson guilty of two additional acts of misconduct, one of which involved issuing a check with knowledge that insufficient funds were available to cover it, a violation of Disciplinary Rules 1-102(A)(3), (4), and (6). The other violation, neglecting a legal matter entrusted to him by his client (DR 6-101(A)(3)), warranted, according to the referee, disbarment. Wolfson has not sought our review of either referee’s report, and The Florida Bar urges the ultimate sanction of disbarment based on respondent’s cumulative and persistent misfeasance.

The record in both proceedings amply supports the findings of the referees with respect to the charges made in both complaints; accordingly, these findings of fact are approved. The second referee’s recommendation for punishment, namely that Arthur Wolfson be disbarred from the practice of law, is fully warranted on these records and is also approved.

The disbarment shall be effective on August 31, 1981, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that respondent shall not accept any new business. Execution is directed to issue for the costs of these proceedings against the respondent in the amount of $1,137.25.

It is so ordered.

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


text:
    STATE of Florida, Petitioner, v. Wilbert THOMPSON, Respondent.
    No. 59599.
    Supreme Court of Florida.
    July 30, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Anthony C. Musto, Asst. Atty. Gen., Miami, for petitioner.
    Bennett H. Brummer, Public Defender, and Lawrence J. Stein, Asst. Public Defender, Miami, for respondent.
   PER CURIAM.

On January 14, 1981, this Court entered its order accepting jurisdiction and dispensing with oral argument. We have now determined that the Court is without jurisdiction, and therefore the Petition for Review is denied. 386 So.2d 264.

No Motion for Rehearing will be entertained by the Court.

It is so ordered.

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

ADKINS, J., dissents.


author: PER CURIAM. BOYD, Acting C. J.,

text:
    THE FLORIDA BAR, Complainant, v. James T. GOLDEN, Respondent.
    No. 59604.
    Supreme Court of Florida.
    July 30, 1981.
    Stanley A. Spring, Staff Counsel, Tallahassee, and David G. McGunegle, Bar Counsel, Orlando, for The Florida Bar, William L. Colbert, Chairman, Eighteenth Judicial Circuit Grievance Committee “A”, Sanford, for complainant.
    James T. Golden, Sanford, in pro. per.
   PER CURIAM.

In a two-count complaint, The Florida Bar has charged Florida Bar member James T. Golden with mishandling trust moneys entrusted to him. As to count one the referee found that one of respondent’s clients deposited $3,000 with respondent to be used in connection with a real estate transaction. When that transaction fell through and with the permission of the client, respondent borrowed the money for supposedly a short period of time. Although the client made repeated attempts to recoup the loan, respondent was unable to repay it for nearly two years. For this action, the referee recommended that respondent be found guilty of violating Disciplinary Rules 5-101(A), 5 — 104(A), and 9-102(BX4), and Integration Rule, art. XI, rule 11.02(4).

As to count two, the referee found that respondent failed to keep adequate records of his trust accounting procedures in 1978 and 1979 as required by Integration Rule Bylaws, art. XI. The referee recommended that for this action respondent be found guilty of violating disciplinary rules 9-102(A) and 9-102(B)(3); Integration Rule, art. XI, rule 11.02(4)(c); and technical but not blatant violation of Disciplinary Rule 1-102(A)(4).

Finding no past disciplinary record, the referee recommended that respondent be publicly reprimanded. No petition for review has been filed with this Court. We therefore approve the findings and recommendations as presented. Publication of this order will serve as public reprimand. Respondent will pay the cost of these proceedings in the amount of $1,902.32.

It is so ordered.

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

BOYD, Acting C. J.,

concurs as to finding of misconduct but dissents to the discipline imposed and would favor a private reprimand.


author: ENGLAND, Justice.

text:
    FORD MOTOR COMPANY, Petitioner, v. James A. KIKIS, Respondent.
    No. 59634.
    Supreme Court of Florida.
    July 30, 1981.

      Monroe E. McDonald of Sanders, Mc-Ewan, Mims & McDonald, Orlando, and Edward T. O’Donnell of Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, for petitioner.
    Walter R. Moon and Edward Casoria, Jr., of Rush, Marshall, Bergstrom & Robison, Orlando, for respondent.
   ENGLAND, Justice.

This case presents one issue which we have never addressed and another issue which we have never stopped addressing. The first requires clarification of the “expressly” requirement in this Court’s constitutional jurisdiction to resolve conflicting appellate decisions. Art. V, § 3(b)(3), Fla. Const. The second revisits the role of the districts courts of appeal when reviewing a trial judge’s order granting a motion for a new trial.

On Ford’s motion, the trial court vacated a jury verdict for Kikis, directed a verdict for Ford, and entered judgment on the verdict. The court alternatively granted Ford’s motion for a new trial on the grounds that the verdict was contrary to the manifest weight of the evidence and that the court had erred in refusing to give an instruction requested by Ford. On appeal, the district court reversed the trial court’s judgment, directing that the jury verdict be reinstated and judgment enter for Kikis. Kikis v. Ford Motor Co., 386 So.2d 306 (Fla. 5th DCA 1980). Ford asks us to review that decision on the basis of an express and direct conflict with prior appellate decisions.

The first issue — the meaning of the expressly requirement — arises from the fact that the district court below did not identify a direct conflict of its decision with any other Florida appellate decisions. The court’s opinion discusses, however, the basis upon which it reversed the trial court’s entry of a directed verdict for Ford. This discussion, of the legal principles which the court applied supplies a sufficient basis for a petition for conflict review. It is not necessary that a district court explicitly identify conflicting district court or supreme court decisions in its opinion in order to create an “express” conflict under section 3(b)(3).

The second issue in this proceeding is a product of the district court’s ambiguous reasoning. The court reversed the trial court on the grounds that “there was evidence in the record to support the jury verdict and no reversible trial error occurred warranting either a judgment for the defendant or a new trial.” Its subsequent analysis addresses whether there was evidence in the record to support the jury verdict. This inquiry is relevant to review of the trial court’s grant of a directed verdict, but not to the alternative grant of a new trial. We have stated and restated the appropriate standard for district courts on review of a trial court’s motion granting a new trial. The test is whether the trial court abused its “broad discretion.” If reasonable men could differ as to the propriety of the action taken by the trial court, then there is no abuse of discretion. See Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980); Cloud v. Fallis, 110 So.2d 669 (Fla.1959); Rivera v. White, 386 So.2d 1233 (Fla. 3d DCA 1980).

The district court’s apparent failure to apply this standard requires that we quash the decision and remand this cause solely for a reexamination of the trial court’s alternative grant of a new trial.

It is so ordered.

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

      . The order provided that “should the foregoing Final Judgment be reversed by the Appellate Court, the Defendant’s Motion for New Trial ... is ... granted .... ”

      . See England, Hunter & Williams, Constitutional Jurisdiction of the Supreme Court of Florida: 1980 Reform, 32 U. Fla. L. Rev. 147, 188-89 (1980).

        .Kikis v. Ford Motor Co., 386 So.2d at 306-07 (footnote omitted and emphasis added).


text:
    STATE of Florida, Petitioner, v. RIVERS, Charles, etc., Respondent.
    No. 59828.
    Supreme Court of Florida.
    July 30, 1981.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., Miami, for petitioner.
    Charles Rivers, in pro. per.
   PER CURIAM.

Conflict of decisions having been dispelled, the petition is denied. 392 So.2d 913 (Fla.App.). Villery v. The Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1980).

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


text:
    STATE of Florida, Petitioner, v. Dennis Andrew HEGSTROM, Respondent.
    No. 59893.
    Supreme Court of Florida.
    July 30, 1981.

      Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., Miami, for petitioner.
    Bennett H. Brummer, Public Defender, and Peter Raben, Asst. Public Defender, Miami, for respondent.
   ENGLAND, Justice.

In State v. Pinder, 375 So.2d 836 (Fla. 1979), we held that the double jeopardy clause of the fifth amendment to the Constitution prohibits multiple convictions and punishments in the same trial for both first-degree murder and the underlying felony from which the murder results. Following our directive, the Third District Court of Appeal vacated Dennis Hegstrom’s conviction and sentence for the underlying felony of robbery in a felony murder case.. The state asks that we reconcile differing applications of Pinder, and that we reconsider it in light of two subsequent double jeopardy decisions of the United States Supreme Court. Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); Albernaz v. United States, - U.S. -, 101 S.Ct. 1137, 67 L.Ed.2d 275 (U.S.1981).

Preliminarily, we dispose of the state’s suggestion that the district court should be reversed inasmuch as Hegstrom’s conviction can be sustained on the basis of premeditated, rather than felony, murder. Were we do so, of course, the double jeopardy issue raised by Pinder would not be reached, let alone resolved. We categorically decline to accept the case for review on one basis and then reweigh the evidence, once reviewed by the district court, in order to avoid a ruling on the legal issue which provoked our jurisdiction. As the 1980 constitutional amendment to our jurisdiction made clear, we will not provide a second record review of cases already resolved by the district courts of appeal. We take this case as we find it with respect to factual determinations, and the Third District Court of Appeal found no evidence of premeditation.

At issue here is the constitutionality of multiple punishments in a single trial setting for discrete crimes arising out of the same offense. In the felony-murder setting of Pinder, we held that the double jeopardy clause of the fifth amendment barred the imposition of cumulative convictions and punishments for both felony murder and the underlying felony in a single criminal proceeding. We based this decision on our interpretation of Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), and Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977), two cases forbidding the imposition of cumulative punishments for the same offense in successive prosecutions. An extension of Brown and Harris to a single trial setting seemed natural in light of those and other Supreme Court decisions. Many other states reached the same conclusion. We now have the benefit of a more refined analysis of double jeopardy by the Supreme Court.

In Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), the Supreme Court reiterated earlier pronouncements that double jeopardy protects “not only against a second trial for the same offense, but also ‘against multiple punishments for the same offense.’ ” Id. at 688, 100 S.Ct. at 1436 (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969)). Whalen emphasized, however, that Congress defines offenses and determines the proper punishment for multiple offenses arising from a single criminal episode. Applying the double jeopardy test first announced in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Court concluded that Congress did not intend cumulative punishments for rape and murder committed during the course of rape because the conviction of the felony murder offense could not be had without proving the lesser included offense of rape. In the absence of a clear contrary legislative intent, the Blockburger test must be met before multiple punishments are permissible. Under Blockburger, the same act violates two statutes only if “each [statutory] provision requires proof of a fact which the other does not.” Id. at 304, 52 S.Ct. at 182.

In Albernaz v. United States, - U.S. -, 101 S.Ct. 1137, 67 L.Ed.2d 275 (U.S.1981), the Court ruled that double jeopardy did not bar the imposition of cumulative sentences for conspiracy to import marijuana and conspiracy to distribute marijuana even though one transaction gave rise to both offenses. Relying on Whalen, the dispositive question was whether the legislature intended to authorize separate punishments for the differing offenses. Thus, under Whalen and Alber-naz, it is now clear that the fifth amendment presents no substantive limitation on thé legislature’s power to prescribe multiple punishments, and that double jeopardy seeks only to prevent courts either from allowing multiple prosecutions or from imposing multiple punishments for a single, legislatively defined offense. To hold that the legislature might violate the Constitution by authorizing too many punishments for a single act “demands more of the Double Jeopardy Clause than it is capable of supplying.”

In light of Whalen and Albernaz, we have reconsidered our Pinder decision and now believe our reliance on successive prosecution cases was misplaced. At least three members of the Supreme Court have specifically declared that Harris does not apply to multiple punishment, single trial problems.

Our sole inquiry now is to determine what punishment our legislature authorized for a single criminal transaction involving two or more separate, statutory offenses. Section 775.021(4), Florida Statutes (1979), supplies the answer. It states:

Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode

Because the crime of first-degree murder committed during the course of a robbery requires, by definition, proof of the predicate robbery, the latter is necessarily an offense included within the former. Under Whalen’s legislative intent test and our statute, it would follow that Hegstrom could not be sentenced both for felony murder and for the underlying felony. But we see nothing in Blockburger which bars multiple convictions for lesser included offenses.

As a last ditch effort to sustain multiple punishments here, the state argues on the basis of an hypothecated legislative intent that felony murder episodes were to be excluded from the operation of section 775.-021(4). The state reasons that the statute was enacted subsequent to Slater v. State, 316 So.2d 539 (Fla.1975), in which we held that robbery and murder committed during the course of the felony were two separate offenses allowing the imposition of two separate sentences. From this chronology the state infers that the legislature “intended” to preserve our decision and to exclude from what it wrote double sentences for felony murder and the underlying felony.

We reject the state’s contention. Judicial decisions before an enactment do not stand as independent beacons of legislative intent to explain an otherwise unambiguous statute. Section 775.021(4) is specific, and the lesser included offenses are exempt from multiple sentencing.

For the reasons expressed, we recede from Pinder, but affirm that part of the district court’s judgment vacating Heg-strom’s separate sentence for robbery. Hegstrom’s multiple convictions, however, present another matter. Although our opinions have not been entirely consistent on whether double jeopardy forbids double convictions as well as double sentencing, the absence of double jeopardy and Block-burger constraints in this situation returns our attention to an analysis of legislative intent. Section 775.021(4), of course, expressly bars only multiple sentences. An implication exists that the legislature did not intend to prohibit multiple convictions, one which is bolstered by the designation of robbery and of felony murder as separate and discrete criminal acts. Accordingly, we reverse the district court’s decision vacating Hegstrom’s conviction. We remand this case to the district court for further proceedings consistent with this decision.

It is so ordered.

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

      . Hegstrom v. State, 388 So.2d 1308 (Fla. 3d DCA 1980).

      . King v. State, 390 So.2d 315 (Fla.1980), cert. denied, - U.S. -, 101 S.Ct. 1529, 67 L.Ed.2d 825 (1981); Wright v. State, 380 So.2d 550 (Fla. 2d DCA 1980). Our jurisdiction is predicated on article V, section 3(b)(3), Florida Constitution.

      . Hegstrom was charged with first-degree murder, committed either with premeditation or in the perpetration of a robbery. The district court found “no evidence of premeditated design to support the jury’s verdict of first-degree mui-der on [the theory of premeditated murder.]” 388 So.2d at 1309.

      . England, Hunter & Williams, Constitutional Jurisdiction of the Supreme Court of Florida: 1980 Reform, 32 U.Fla.L.Rev. 147 (1980).

      . See, e. g., Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975). See generally Westen & Drubel, Toward A General Theory Of Double Jeopardy, 1978 Sup.Ct.Rev. 81.

      . See Whalen v. United States, 445 U.S. 684, 699 n.3, 100 S.Ct. 1432, 1442 n.3, 63 L.Ed.2d 715 (1980) (Blackmun, J., concurring) (citing authorities from other states).

      . See generally Note, Twice In Jeopardy, 75 Yale L.J. 262, 266-67 (1975).

      . See Westen & Drubel, supra note 5, at 113.

      . Contra, Sours v. State, 603 S.W.2d 592 (Mo. 1980), cert. denied, - U.S. -, 101 S.Ct. 953, 67 L.Ed.2d 118 (1981), in which the Missouri Su; .me Court reconsidered its decision regarding multiple punishments in light of Whalen. The majority found that the legislature clearly intended to impose cumulative punishments for separate degrees of robbery and armed criminal action under a criminal action statute. On this basis, it distinguished Sours from Whalen and applied a double jeopardy bar to multiple punishments in a single trial setting.

      .Justice Blackmun in his concurrence in Whalen points to Pinder as one of several decisions which erroneously applied Harris to double punishment cases for felony murder and its predicate felony. 445 U.S. at 699 n.3, 100 S.Ct. at 1442 n.3 (Blackmun, J., concurring). Justice Rehnquist, joined by Chief Justice Burger, also concluded in his dissent that reliance upon Harris was improper. Id. at 700-01, 100 S.Ct. at 1442-43 (Rehnquist, J., dissenting).

      . 445 U.S. at 692, 100 S.Ct. at 1438.

      . Subsection four was added to section 775.-021 in 1976. Ch. 76-66, § 1, Laws of Fla.

      . The state relies upon the general rule that the legislature is presumed to know existing judicial constructions of the law when enacting a statute. Williams v. Jones, 326 So.2d 425 (Fla.1975), appeal dismissed, 429 U.S. 803, 97 S.Ct. 34, 50 L.Ed.2d 63 (1976).

        .Compare Mahaun v. State, 377 So.2d 1158 (Fla. 1979) (sentence and conviction vacated) with King v. State, 390 So.2d 315 (Fla.1980) (sentence vacated but conviction preserved), cert. denied, —— U.S. -, 101 S.Ct. 1529, 67 L.Ed.2d 825 (1981).


author: PER CURIAM. ALDERMAN, Justice,

text:
    In re Petition of Jose Agustine DIEZ-ARGUELLES.
    No. 60152.
    Supreme Court of Florida.
    July 30, 1981.
    Robert M. Rhodes of Messer, Rhodes, Vickers & Hart, and Joseph W. Jacobs, Tallahassee, for petitioner.
    Alexander L. Hinson, Chairman, Quincy, John H. Moore, Executive Director, and C. Graham Carothers, Tallahassee, for the Florida Board of Bar Examiners.
   PER CURIAM.

We have for review the findings of fact and conclusions of law of the Florida Board of Bar Examiners (hereinafter the board), concluding that petitioner, Jose Agustine Diez-Arguelles (hereinafter petitioner), fails to meet the standards of conduct and fitness required under the provisions of article IV, section 19, of the Rules of the Supreme Court of Florida Relating to Admissions to the Bar. We have jurisdiction. Art. IV, § 20(a), Rules of the Supreme Court of Florida Relating to Admissions to the Bar (hereinafter the rules).

In 1972, while an undergraduate student at Florida State University, petitioner was arrested in Miami, Florida, for the sale of cocaine. He was charged with such and with the prior sale of cocaine in Leon County, Florida. Petitioner pled nolo contendere to the Leon County related charges and guilty to the Miami ones and was sentenced to concurrent prison terms of four years for the former and three for the latter.

Continuing to pursue an education while in prison and after being released, petitioner was awarded a BA by Florida State University in 1976 and a JD by that school’s college of law in 1978. In 1980 he was awarded an LL.M. in taxation by the Boston University School of Law.

Petitioner disclosed his criminal record on the application for admission which he filed with The Florida Bar in 1979. After an informal hearing at which he appeared, the board served specifications upon petitioner alleging that he had engaged in the previously recounted criminal conduct and indicating that the board planned to inquire into and determine his qualifications under the provisions of article IV, section 19, of the rules. In response thereto, petitioner admitted the allegations and requested a formal hearing for presentation of evidence regarding his qualifications.

At the formal hearing, the board’s evidence consisted of a copy of the specifications which had earlier been served, petitioner’s answer thereto, and a transcript of the informal hearing earlier held. Petitioner’s evidence consisted of his testimony regarding his past involvement with drugs, his current opinion thereof and his resolve to rehabilitate himself, character testimony by his law school dean, and letters of commendation from persons with whom he had dealt over the years.

After considering the above, the board issued its findings of fact and conclusions of law, which read as follows:

1. The Board finds that beginning in August or September, 1972, while Applicant Diez-Arguelles was enrolled as an undergraduate student at Florida State University, and continuing until approximately November of 1972, he engaged in the purchase and resale of cocaine for profit. That during said period, Applicant Diez-Arguelles participated in and engaged in the sale of cocaine on approximately fifteen occasions, in transactions ranging in quanity [sic] from one ounce to eight ounces. That in 1972, Applicant Diez-Arguelles was arrested and charged with the unlawful sale of cocaine in the Circuit Court of the Eleventh Judicial Circuit of Florida in and for Dade County. That upon his plea of guilty, Applicant Diez-Arguelles was adjudicated guilty of said offense, which constituted a felony under the laws of Florida. That in 1972, Applicant Diez-Arguelles was also arrested and charged with unlawful sale of cocaine in the Circuit Court of the Second Judicial Circuit of Florida in and for Leon County. That upon his plea of nolo contendere, applicant was adjudicated guilty of said offense which constituted a felony under the laws of Florida.
2. The Board further finds that, considering the nature and seriousness of the crimes of which Applicant Diez-Arguelles has been convicted, the evidence offered with respect to the Applicant’s rehabilitation, including the testimony of the applicant and of Joshua M. Morse, and letters introduced in evidence, is insufficient to sustain the applicant’s burden of proving his good moral character and fitness.
CONCLUSIONS OF LAW
It is the conclusion of the Board that the evidence before it as set forth in the foregoing Findings clearly and unequivocally establishes that Applicant Diez-Ar-guelles fails to meet the standard of conduct and fitness required under the provisions of Article IV, Section 19 of the Rules of the Supreme Court of Florida Relating to Admissions to the Bar.

In response to the above, petitioner petitioned this Court for review, praying for admittance to The Florida Bar.

We have carefully reviewed the evidence produced at petitioner’s formal hearing, the correspondence with which petitioner supplemented the record, and the board’s findings and conclusions, and are of the opinion that petitioner has shown his rehabilitation and should be admitted to The Florida Bar.

The rule under which the board denied petitioner admission to the bar provides as follows:

No person shall be recommended by the Florida Board of Bar Examiners to the Supreme Court of Florida for admission to The Florida Bar unless he first produces satisfactory evidence to the Board that he is of good moral character, that he has an adequate knowledge of the standards and ideals of the profession and is otherwise a fit person to take the oath and perform the obligations and responsibilities of an attorney.

The board contends that in light of petitioner’s past criminal activities, he has failed to produce satisfactory evidence of rehabilitation proving that he is presently possessed of good moral character and fitness. Several matters convince us otherwise.

Petitioner’s accomplishments since the time of his arrest are persuasive evidence of rehabilitation. He states that while in prison he decided to try to overcome, through education, the mistake which he made. His subsequent attainment of a BA degree, a law degree, and a master of laws in taxation demonstrate a desire to improve himself, acceptance of certain responsibilities and goals, and persistence in achieving the same. Petitioner has evidenced a resolve to chart a new course for his life, renouncing the element in which he was once enmeshed.

Also indicating petitioner’s sincere and successful drive for rehabilitation are the letters from and testimony by professionals with whom he has dealt since his conviction. They reflect petitioner’s special efforts to avoid any kind of trouble, his diligence and dependability in all undertakings, his regret concerning his past conduct and attempts to warn others against such mistakes, and what those who have dealt with him view as his high moral standards and integrity. Petitioner’s law professors, with whom he was closely involved for three years, commend his ability and desire to practice law and indicate their unreserved confidence in him. The letters and testimony presented are persuasive argument in favor of admitting petitioner to the bar.

We note that the board presented nothing contravening the evidence presented on petitioner’s behalf. No act, incident, or omission reflecting ill on petitioner was shown. No testimony or letter questioning his character was produced. Nothing in the record contradicts petitioner’s assertion of his rehabilitation, and we accept it as genuine.

Not controlling, but, in our opinion relevant, is article IV, section 20(c) of the rules, which provides, in part:

Any applicant who has been refused recommendation by the Board or any applicant or student registrant who has proceeded through the provisions of paragraph (a) above and is the recipient of final action by the Supreme Court either denying an applicant’s admission or finding a student registrant to be unfit for admission may, within a period of not less than two calendar years from the date the Board delivered its adverse finding or from the date the Court entered such final action, whichever is later, file an appropriate petition with the Clerk of the Supreme Court of Florida in an attempt to show sufficient rehabilitation to warrant a review of the Board’s finding or the re-evaluation by the Court of its final action.

(emphasis added).

Section 20(c) clearly indicates that one wishing to show rehabilitation must wait at least two years after an adverse finding before attempting to do so. A corollary of the rule, therefore, would be that one may be sufficiently rehabilitated after two years to gain admittance to the bar. The passage of two years, without more, will not prove rehabilitation, but, the clear import is that two years may be sufficient time for rehabilitation to have occurred.

Petitioner has been striving to rehabilitate himself, and to demonstrate such, for much longer than two years. It has been over eight years since he was arrested and convicted. He has spent that time studying, working, and by all accounts, leading an exemplary life. If two years is adequate time for rehabilitation to occur, then the fact that petitioner has acted in an exemplary fashion for eight years is compelling evidence of such on his part.

In ruling in favor of petitioner’s admission, we do not make light of or ignore his past. He was arrested for and admitted to a serious crime and was adjudicated a felon. Such conduct provides the basis for denying one the privilege of practicing law. Nor does restoration of one’s civil rights automatically guarantee admission to the bar. The rules do not, however, bar the later admission of one so convicted if he is able to demonstrate that he meets the standards of conduct and fitness required of an attorney. See In re Florida Board of Bar Examiners, 350 So.2d 1072 (Fla.1977); and In re Florida Board of Bar Examiners, 341 So.2d 503 (Fla.1976).

Petitioner has demonstrated that he meets said standards. He has shown by hard work, perseverance, and dedication, a reformation. We would be hard pressed to find a person who has worked harder to overcome a regrettable course of conduct; one who chose the route of improvement and rehabilitation through hard work rather than the too-often chosen path of a continued life of crime. One who works diligently at rehabilitation, and who can show that he has in fact been rehabilitated, should not be denied the privilege of practicing law solely because of a past mistake which is no longer relevant to the issue of his admission to the bar.

Petitioner has demonstrated, to our satisfaction, that he has been rehabilitated and meets the standards of conduct and fitness required by the rule. We therefore direct that he be admitted to The Florida Bar.

It is so ordered.

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

ALDERMAN, J., dissents with an opinion.

ALDERMAN, Justice,

dissenting.

The applicant, Diez-Arguelles, is a twice convicted felon who admittedly participated in approximately fifteen sales of cocaine ranging in quantity from one ounce to eight ounces. Without concern for the laws of his adopted country and without regard for the effect his illicit trade would have on others, Diez-Arguelles became a drug dealer. Fortunately, his career as a professional criminal was cut short by his arrest, conviction, and imprisonment.

The Board of Bar Examiners concluded that the evidence offered by Diez-Arguelles was insufficient to sustain his burden of proving that he was of good moral character and fitness. That burden was particularly heavy in this case because Diez-Ar-guelles’ past disrespect for the law and his willingness to prey upon the weakness of others are strong signs of serious character defects. In making its finding, the Board heard firsthand the testimony of Diez-Ar-guelles. It was not required to accept his testimony at face value, but, as our finder of fact, it could properly weigh this testimony in determining the sincerity of his professed rehabilitation.

The evidence presented by Diez-Ar-guelles, if believed, is sufficient to show that he is now rehabilitated. Apparently, it was not believed by the Board. Not having heard the live testimony presented at the formal hearing, I am not prepared to substitute my judgment as to its believability for that of the Board’s. I prefer to give to the Board’s finding the presumption of correctness which it is entitled to receive. Accordingly, I would deny the petition of Diez-Arguelles for admission to The Florida Bar.


author: ERVIN, Judge.

text:
    Helen DANIELS, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. PP-160.
    District Court of Appeal of Florida, First District.
    May 12, 1981.
    As Corrected on Denial of Rehearing Aug. 19, 1981.

      Ronald D. Combs, Gainesville, Florida Institutional Legal Services, Inc., for appellant.
    Michael H. Davidson, former general counsel for Florida Parole and Probation Commission, Tallahassee, and Malcolm S. Greenfield, General Counsel, Florida Parole and Probation Commission, Tallahassee.
   ERVIN, Judge.

Daniels filed an administrative appeal from an order of the Parole and Probation Commission which established a presumptive parole release date she claims is contrary to objective parole guidelines. The Commission moved to dismiss the appeal arguing this court lacked jurisdiction.

We ordered the parties to brief and argue the means by which an inmate invokes an appellate court’s jurisdiction when seeking review of a presumptive parole release date. In responding, the Commission asserted that we lack jurisdiction to review such action, but if jurisdiction does exist, our review powers may be exercised only by mandamus. We now determine that our jurisdiction is not so limited, and that the Commission’s discretionary action in establishing a presumptive parole release date is subject to review by administrative appeal.

I. Judicial Review Power

We first wish to put to rest the Commission’s contention that the Commission is an executive creature whose actions are entirely immune from judicial review. It is now well established that the Commission is subject to the dictates of the legislature, Owens v. State, 316 So.2d 537 (Fla.1975), and to review by extraordinary remedy, Turner v. Wainwright, 379 So.2d 148 (Fla. 1st DCA 1980), affd., sub nom. Wainwright v. Turner, 389 So.2d 1181 (Fla.1980); Moore v. Florida Parole and Probation Commission, 289 So.2d 719 (Fla.1974); James v. Florida Parole and Probation Commission, 395 So.2d 197 (Fla. 1st DCA 1981); Battis v. Florida Parole and Probation Commission, 386 So.2d 295 (Fla. 1st DCA 1980); Smith v. Crockett, 383 So.2d 1166 (Fla. 3d DCA 1980); Baker v. Florida Parole and Probation Commission, 384 So.2d 746 (Fla. 1st DCA 1980).

II. Mandamus

Prior to the decision of the Florida Supreme Court in Moore v. Florida Parole and Probation Comn., supra, the extraordinary writ of mandamus was considered appropriate only to review ministerial acts. Review of discretion was improper. Solomon v. Sanitarians’ Registration Board, 155 So.2d 353 (Fla.1963); Anoll v. Pomerance, 363 So.2d 329 (Fla.1978). The traditional underpinnings of mandamus jurisdiction were significantly eroded by Moore, which held that mandamus was a suitable means for examining the Commission’s discretionary order denying a petition for parole that had allegedly been influenced by taking into account certain illegal considerations. In so applying mandamus, the Moore court in effect apparently disregarded precedent which had limited mandamus review over only ministerial acts. We are not similarly restrained—as was the court when it decided Moore—by want of an appellate foundation from directly reviewing the discretionary acts of the Commission. Moore was written before the enactment of the Objective Parole Guidelines Act of 1978, requiring that presumptive parole release dates be objectively determined, and before the implementation of the Administrative Procedure Act, vesting appellate courts with broad powers of review over agencies. Its decision reflects an accommodation between the perceived necessity of reviewing Commission action where appellate review was not provided by law, and the-then traditional view that the Commission, being a creature of the executive, was immune from judicial scrutiny. See Marsh v. Garwood, 65 So.2d 15, 21 (Fla.1953). In our judgment, a jurisdictional base has been provided, subsequent to Moore, by Section 120.68 of the Florida Statutes (1975).

III. Section 120.68 Judicial Review

Section 120.60(1), defining the scope of judicial review permissible, broadly states: “A party who is adversely affected by final agency action is entitled to judicial review.” It follows then that in order to have standing to seek such review, a person must show: (1) the action is final; (2) the agency is subject to the provisions of the Act; (3) he was a party to the action which he seeks to appeal, and (4) he was adversely affected by the action.

It can hardly be doubted that the Commission’s establishment of a presumptive parole release date is final agency action. It is immaterial that the action appealed may not have the characteristics of a Section 120.59 order. Our “ultimate task under Section 120.68 is to review ‘action’, not agency judgments.” Rice v. Dept. of Health and Rehabilitative Services, 386 So.2d 844, 850 (Fla. 1st DCA 1980). Such action may include “a rule or order, or the equivalent, . . . .” Section 120.52(2)(e.s.). The action involved here is a final agency decision reduced to writing, styled “Commission action”, which is binding upon the Commission except where exceptional circumstances arise. See Sections 947.172(3) and .173(3).

It is now beyond question that the Commission is an agency subject to the provisions of the APA. We have repeatedly held that the 1974 Administrative Procedure Act enforces its discipline on all agencies, unless they are specifically exempted, whose actions affect the substantial interests of a party. E. g., State ex rel. Dept. of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977); School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977); McDonald v. Dept. of Banking & Finance, 346 So.2d 569 (Fla. 1st DCA 1977). Moreover, the Commission is not excluded from the Act’s scope under Section 120.50 or otherwise. Compare Comer v. Florida Parole & Probation Commission, 388 So.2d 1341 (Fla. 1st DCA 1980).

The most significant question before us is whether an inmate may be considered a party to the action which he seeks to have reviewed when the APA denies him the right to obtain certain privileges that would be otherwise available to all substantially affected parties at the proceeding where the final action occurred. The Commission argues that an inmate does not have party status to seek an appeal, relying upon Section 120.52(10)(d), which provides: “Prisoners as defined in s. 944.02(5) shall not be considered parties for the purposes of obtaining proceedings under s. 120.54(16) or s. 120.57 . . . .” The Commission continues that because prisoners are precluded as parties entitled to seek such proceedings, they are not entitled to Section 120.68 appeals from Commission action entered following a non-section 120.57 proceeding. It then concludes that we are without jurisdiction to entertain such appeals since there is no provision of general law conferring jurisdiction upon the district courts as required by Article V, Section 4(b)(2), Florida Constitution (1968).

The Commission fails to understand the broad scope of Chapter 120. An inmate is not denied party status simply because he appears before an agency at a proceeding which is not specifically recognized under Chapter 120 (proceedings established, for example, by Sections 120.54, .56, .565 or .57). This conclusion is made evident by reference to the APA’s definition of party. Section 120.52(10)(a), (b) and (c) recognizes three classes of parties: (1) persons whose substantial interests are determined in a proceeding; (2) other persons who are authorized as a matter of constitutional right, provision of statute, or rule to participate in a proceeding as parties, and, finally, (3) still other persons who are permitted by the agency to intervene or participate in a proceeding as parties. Section 120.52(10)’s reference to “proceeding” does not limit or restrict the word to proceedings that are cognizable only under the APA. Although not defined by Chapter 120, proceeding is generally defined as a legal action, a particular action at law, or case in litigation. Webster’s Third New International Dictionary (1976). Therefore, by reason of the general, unrestricted usage of the word proceeding in Section 120.52(10), we conclude that the legislature intended that a person may be a party to any proceeding or legal action which is recognized by law, including one at which a presumptive parole release date is determined.

Having established that an inmate may be considered a party to a proceeding which does not comport with the procedural requirements of the APA, it is next necessary to decide whether the inmate’s interests were “adversely affected” by the action taken, as required by Section 120.68(1). The fact that a person may have the requisite standing to appear as a party before an agency at a de novo proceeding does not mean that the party automatically has standing to appeal. The APA’s definition of a party recognizes the need for a much broader zone of party representation at the administrative level than at the appellate level. For example, in rulemaking, a large number of persons may be invited or permitted by the agency to participate as parties in the proceeding, so as to provide information to the agency concerning a broad spectrum of policy considerations affecting proposed rules. See Balino v. Dept. of Health and Rehab., etc., 362 So.2d 21 (Fla. 1st DCA 1978). Yet, a person who participates in such a proceeding by authorization of a statute or rule, or by permission of an agency, may not necessarily possess any interests which are adversely, or even substantially, affected by the proposed action.

In the case at bar, we are not confronted with any problem of standing existing at the administrative level which does not exist also at the appellate level. An inmate who contends that his presumptive parole release date was established by the Parole Commission contrary to the objective criteria required by Chapter 947 has adequately represented both that his substantial interests were determined, as well as that his interests were adversely affected by the Commission’s final agency action. Compare Professional Firefighters of Florida, Inc. v. Department of Health and Rehabilitative Services, 396 So.2d 1194 (Fla. 1st DCA 1981). There can be little question that a determination affecting when an inmate may be returned to society is perhaps the most crucial action affecting his prison life. We conclude that the propriety of the Commission’s action in establishing a presumptive parole release date is appropriately before us as an administrative appeal.

The remedial choices under Section 120.68 are legion. The APA’s “impressive arsenal of varied and abundant remedies for administrative error” includes the judicial power, on review of agency action, to decide “the rights, privileges, obligations, requirements or procedures at issue between the parties” and to “provide whatever relief is appropriate,” whether “mandatory, prohibitory or declaratory in form.” Section 120.-68(13)(a). Among other things, we may, for example, remand the action to the agency with directions that it establish a presumptive parole release date at a proceeding conforming to the procedure set out under Sections 947.172 and .173, or at a proceeding conforming to a rule of practice adopted by the Commission, or, if the issue involves one only of law and not of facts, we may, as was done in Harris v. Florida Real Estate Commission, supra, n. 3, directly decide the rights litigated between the parties without remand. Section 120.68 furnishes many appellate remedies to adversely affected parties and should be liberally construed as a broad grant of power, not as a limitation of power.

Although we have decided that a direct right of administrative review is available to one who claims his release date was incorrectly set, we must caution that it is not necessarily the exclusive method of relief. Mandamus yet abides as a remedy, to the extent stated by Moore, but it “continues subject to judicial restrictions upon its use which require prior resort to and exhaustion of administrative remedies when they are available and adequate.” State ex rel. Dept. of General Serv. v. Willis, supra at 589 (e.s.). The question whether a court within Florida’s unitary judicial system should intervene to issue an extraordinary writ, when an administrative remedy is available, is, as stated in Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So.2d 695, 699 (Fla.1978), “ultimately one of policy rather than power, . .. . ” Policy may require intervention because, in the now familiar phrase of State ex rel. Dept. of General Serv. v. Willis, supra at 590: “[S]ome agency errors may be so egregious or devastating that the promised administrative remedy is too little or too late.” Yet policy dictates that such intervention be sparingly exercised, that it defer to the agency its “greater familiarity with the statutory scheme and its expertise in the field regulated.” Rice v. Dept. of Health & Rehabilitative, 386 So.2d 844, 850 (Fla. 1st DCA 1980). If the administrative remedy is considered adequate, courts generally will regard such remedy as exclusive. State ex rel. Dept. of General Serv. v. Willis, supra.

IV. Procedure

An inmate’s appeal from final agency action taken by the Commission is governed by the Florida Rules of Appellate Procedure and Chapter 120, Florida Statutes. An inmate seeking review of the Commission’s final order, confirming the established presumptive parole release date pursuant to Section 947.173, Florida Statutes, must file a notice of appeal within 30 days. Fla.R.App.P. 9.110(b). A copy of the notice of appeal should be filed with the Commission and with the district court. Fla.R.App.P. 9.110(c). The notice shall state the date of the Commission’s action and that the appeal is from an order determining the presumptive parole release date. The notice shall substantially comply with the form provided in Florida Rule of Appellate Procedure 9.900(e). See Appendix “A”. If the notice is not filed with the Commission within the 30-day period, the appeal will be dismissed for lack of jurisdiction.

The Commission’s order will be final when it is reduced to writing and filed with the person designated as the Commission’s clerk. The date of filing should be indicated on the final order, Section 120.52(9), Florida Statutes, and sent to the inmate on the same day it is filed with the clerk of the Commission. If the filing date is not on the Commission’s final order, the filing date will be considered to be the date the order was mailed to the inmate.

Appellant’s initial brief shall be served within 70 days of the date the notice of appeal is filed. Fla.R.App.P. 9.110(f). Briefs and all other documents filed with the court shall be served on all parties. Fla.R.App.P. 9.420. Briefs shall comply with Rule 9.210, Florida Rules of Appellate Procedure; however, the court recognizes that many inmates do not have access to typewriters, and will accept handwritten briefs from inmates if the writing can be easily read. The brief should contain a statement of the case, a procedural history of all actions and orders which are relevant to the final order entered by the Commission, and a statement of facts. The inmate shall refer to the appropriate pages of the record to support any factual statements made in the brief. Fla.R.App.P. 9.210(b)(3).

The clerk of the Commission shall serve the inmate with the index to the record on appeal within fifty (50) days of filing the notice of appeal, and the record on appeal shall be transmitted to this court in accordance with the attached schedule. See Appendix “B”. The record sent to the court shall be a copy of the original record on appeal. The original documents are to be retained by the Commission. The record shall contain the Commission’s final order and all documents considered by the Commission before entering its final order and used as a basis for its action. Section 120.-68(5)(c), Fla.Stat. However, since the issues that may be raised on appeal are limited to those issues presented to the Commission in the Section 947.173 administrative review proceeding, only the documents that were considered by the Commission to determine those issues should be included in the record on appeal.

The Parole and Probation Commission’s motion to dismiss is denied and appellant shall have 70 days in which to serve her initial brief.

MILLS, C. J., McCORD, ROBERT P. SMITH, Jr., SHIVERS, SHAW, WENT-WORTH, JOANOS and THOMPSON, JJ., concur.

BOOTH and LARRY G. SMITH, JJ., dissent.

APPENDIX “A”

APPENDIX “B”

      . Section 947.165, Florida Statutes (1979); Chapters 19-23, Florida Administrative Code.

      . In fact, during the 1977 regular legislative session, S.B. 547 proposed an amendment to Section 120.50, which would exempt the Parole and Probation Commission from the provisions of the APA when it acts to grant or revoke either paroles or conditional releases. The bill died in the Senate Committee on Governmental Operations. History of Legislation, 1977 Regular Session, Florida Legislature (Senate Bills Actions Report) at 195.

      . Compare, for example, Section 440.02l’s exemption of workers’ compensation adjudications from Chapter 120.

      . In describing what items shall comprise the record on appeal, Section 120.68(5)(c) implies that a record may be transmitted from a proceeding which is not specifically provided by the Act.

      . We note that the decision to parole, while critical to the inmate, is not necessarily a “right” to which an inmate is absolutely entitled, as observed by the United States Supreme Court in Greenholtz v. Inmates at the Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Greenholtz states that although a prisoner has no constitutional right to be released on parole before the expiration of his prison sentence, a particular state statute may create a protectible expectation of parole, and “whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis.” 442 U.S. at 11, 99 S.Ct. at 2106. It concluded that Nebraska’s statutory system comported with due process, although it was based in great measure upon subjective factors. We are not asked to decide in this appeal whether the Florida Objective Parole Guidelines Act of 1978 provides a protectible expectation of parole to an inmate. Nevertheless, we note that the purpose of the Act was to replace a system which had formerly determined parole solely by subjective standards. See Section 947.002(1). We also note that the Florida legislature, in its experimentation with an objective system, has afforded practically all inmates the right to a presumptive parole release date, see Battis v. Fla. Parole and Probation Com., supra, and has provided that such dates shall be binding absent good cause for exceptional circumstances.

      . The legislative history of Section 120.-52(10)(d) supports our conclusion. Prior to Section 120.52(10)(d)’s introduction, the Administrative Commission had, pursuant to Section 120.63(1), temporarily exempted the Department of Corrections from the requirements of Sections 120.57, ,54(3)-(6), (16), and .56, as they relate to prisoners. See Staff Analysis, H.B. 420, Governmental Operations Committee (March 3, 1978), Florida State Archives, Series 19, Carton 410 (Meeting- file April 5, 1978). House Bill 420, and its companion in the Senate, S.B. 209, were introduced at the 1978 regular session with identical provisions, proposing: “Prisoners as defined in s. 944.02(5) shall not be considered parties for the purposes of obtaining proceedings under s. 120.54(3)-(6) or (16), and s. 120.56, or s. 120.57.”
      The initial scope of H.B. 420 and S.B. 209 was to exclude prisoners from virtually the entire Administrative Procedure Act, thus excusing the Department of Corrections from complying with the APA. Nevertheless, Section 120.52(10)(d), as enacted, retains the inmate’s statutory rights to participate in proceedings under 120.54(3)-(6) and 120.56, thereby preserving his rights to (1) seek a determination of the validity of any proposed rule, (2) petition the Department of Corrections or the Parole and Probation Commission to adopt, amend or repeal a rule, or provide the minimum public information required, (3) be given a reasonable opportunity to examine the record of any rulemaking proceeding, and (4) seek an administrative determination of the validity of a rule already in effect.

      . State ex rel. Dept. of General Services v. Willis, supra, at p. 590.

      . Compare Harris v. Florida Real Estate Com’n., supra, n. 4, at 1125: “An agency’s failure to enter a proper order, or to afford a hearing, is an occasion for judicial review, not an impediment of it.”

      . Professor Levinson, regarded as one of the principal architects of the 1974 APA, fears the indiscriminate use of extraordinary writs by courts in disputes arising out of administrative action “could lead to by-passing the APA and its replacement by prerogative writ actions or common law actions, in courts selected by litigants.” Levinson, The Florida Administrative Procedure Act, 1974 Revision and 1975 Amendments, 29 U.Mi.L.Rev. 617, 682 (1975).

      . The order should conform to the requirements of Section 120.59, with the exception that the 90-day rendition period specified by Section 120.59 must be harmonized with the time frame stated in Section 947.173(2), requiring the Commission to notify the inmate of its decision within 60 days after the inmate requests it to review his presumptive parole release date.


text:
    ACKERLEY COMMUNICATIONS, INC., a Florida Corporation, Appellant, v. STATE of Florida, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF EMPLOYMENT SECURITY, Appellee.
    No. 80-1968.
    District Court of Appeal of Florida, Third District.
    June 30, 1981.
    Rehearing Denied Aug. 25, 1981.
    Steel, Hector & Davis and Jeffrey Ber-cow, Miami, for appellant.
    Ollie L. Evans, Miami, for appellee.
    Before BARKDULL and FERGUSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

Ackerley appeals from a final determination by the State agency that it was a successor employer to Donnelly Advertising Corporation of Florida (Donnelly) and Empire Advertising Industries, Inc. (Empire), and was thus liable for their unemployment compensation contributions.

On October 7,1977, Ackerley entered into a purchase agreement with Donnelly and Empire, the latter of which was making unemployment contributions as liable employer under the Unemployment Compensation statute. Ackerley acquired the operating assets, plant, employees, and contractual rights of Donnelly and Empire, but did not acquire their monies on deposit, notes or accounts receivable, claims for compensation or other choses in action, trade names, goodwill, or liabilities. Moreover, the two corporations continued to exist thereafter for a short time until liquidated. After the date of the purchase agreement, Ackerley paid unemployment contributions of one per cent.

On April 4,1979, Ackerley received notice that the Department of Labor and Employment Security, Division of Employment Security (Division) determined that it was a successor corporation and was liable for an increase to four and one-half per cent in unemployment contributions retroactive for 1978 and 1979. Following an appropriate demand, a hearing upon stipulated facts was held before a special deputy, who rendered a report in words and figures, in part, as follows:

“§ 443.08(3)(g)l., Florida Statutes (1977) provides:
... Contributions.—
(3) Contribution Rates Based on Benefit Experience.—
(g)l. For the purposes of this subsection, two or more employers who are parties to a transfer of business or the subject of a merger, consolidation, or other form of reorganization, effecting a change in legal identity or form, shall be deemed to be a single employer and shall be considered as one employer with a eontinuous employment record if the division finds that the successor employer continues to carry on the employing enterprises of the predecessor employer or employers.
As can be seen in § 443.08(3)(g)l., supra, two criteria must be met before the successor employer is required to take the employment record of the predecessor. These criteria are:
(1) Two or more employers being parties to a transfer of business.
(2) The successor employer continues to carry on the employing enterprises of the predecessor employer or employers.
In the instant case, clearly there was a transfer of business from both predecessor corporations to the Petitioner. The business of each predecessor corporation was the operation of outdoor advertising structures or billboards. Not only did the Petitioner acquire the operating assets of both predecessor corporations, but it also acquired the advertising contracts of each predecessor corporation. The Petitioner continued to operate same. It is further clear that each predecessor corporation ceased functioning in the outdoor advertising business as of the date of the sale. It should be specifically noted that the purchase agreement between the parties was a voluntary transaction. For the relevancy of this point, See: J. A. Miles Oil Company, Inc. v. Division of Employment Security, 381 So.2d 1188 (Fla.2d DCA 1980) and Edwin Browder, Jr., t/a Browder-Kirtland Sales Co. v. State of Florida, Department of Labor and Employment Security, Division of Employment Security, 375 So.2d 1141 (Fla. 3d DCA 1979).
It is also clear that the Petitioner continued to carry on the employing enterprises of the predecessor employer or employers. The Petitioner continued to carry on the business operation operated by the predecessor, and in so doing, initially employed substantially all of both predecessors’ employees to carry out this business operation.
The Petitioner argues that the phrase ‘affecting a change in legal identity or form’ mandates a finding that the Petitioner was not a successor employer because none of the three corporations involved effected a change in legal identity or form subsequent to the transaction. The Special Deputy cannot accept this argument for two reasons. The first reason is that § 443.08(3)(g)2., Florida Statutes (1977), provides:
Each predecessor shall in the event he again employs persons be treated as an employer without previous employment record, or, if his coverage has been terminated as provided in § 443.09, as a new employing unit.
Clearly, § 443.08(3)(g)2., supra, contemplates that the predecessor legal entity will be retained; otherwise, there would be no reason for that portion which states ‘he again employs person be treated as an employer without previous employment record’. If the legal entity had changed, the new legal entity would automatically be considered a new employing unit.
The second reason is the decision in the case of Escambia Mid-County Development Corporation v. Division of Employment Security, 356 So.2d 855 (Fla. 1st DCA 1978). In that case, Escambia established a nursing home and leased it to Rosemont Nursing and Convalescent Home, Inc. (Rosemont). Because of numerous breaches and defaults, Escambia terminated its lease with Rosemont and directed Rosemont to vacate the premises. Rosemont complied and Escambia made application to state and federal agencies to operate a nursing home, and with approval, began the operation. In the meantime, arrangements were made so that it would not be necessary for patients to be removed from the premises. When Escambia took over the operation, it began using all the fixed assets on the premises essential to the operation of the nursing home, and employed most of the employees which had been employed by Rosemont, except the administrators. The court, after citing § 443.08(3)(g)l., Florida Statutes, stated, on page 857:
Escambia, after urging a more restricted application of the effect of the foregoing paragraph by virtue of the introductory words ‘for the purposes of this subsection’ further urges its inapplicability for the reason that, Escambia claims that there was no ‘transfer of business’ merger, consolidation nor other form of reorganization as between Rosemont and Escambia. We cannot so interpret the statute. While it is true that Escambia did not purchase the convalescent home business from Rosemont it ‘got’ it. Clearly there was a transfer and equally clearly Escambia is the successor to Rosemont.
The court clearly considered the same argument raised by the Petitioner, but rejected said argument. Based upon the facts in the instant case, it is equally clear that there was a transfer of business from both predecessor corporations to Petitioner, and that it got the business of the predecessor through a voluntary sale.
The Petitioner further argues that the Division’s interpretation of the phrase ‘employing enterprises’ is a rule and since it was not properly promulgated according to Chapter 120, Florida Statutes, it is invalid. The Special Deputy does not have the jurisdiction to declare a rule valid or invalid. The hearing before the Special Deputy is a de novo hearing to determine the correctness of Agency action. The law is clear in the criteria to be considered when the transfer of business is between two employers. As set forth in Escambia, supra, § 443.03(7)(f), Florida Statutes was of no significance. § 443.08, supra, was the only controlling statute. The Special Deputy would conclude that the criteria as set out in Fact 21 may be evidence as to whether there was a transfer of business and whether the successor employer continued to carry on the employing enterprises. However, these criteria are not in and of themselves conclusive. In any event, as stated previously, this proceeding is de novo, and the Special Deputy has relied on the plain wording of the statute and cases cited herein. The Petitioner also argues that Chapter 78-295, § 2, Laws of Florida, which amended § 443.08(3)(g)l., supra, effective July 1, 1978, should be applied prospectively to status determinations by the Division, and thus, since the determination in the instant case was made subsequent to the amendment, the Petitioner should have the option of assuming the contribution records.
The Petitioner specifically argues that the phrase, ‘if the division finds’ is the operative language, and that since the Division’s findings were made subsequent to the amendment, that the amendment is applicable. The Special Deputy rejects the Petitioner’s argument and finds that the date on which the transfer of business occurred is determinative and the law in effect at that time is applicable. In that regard, the Special Deputy determines that the amendments made by Chapter 78-295 are prospective in nature. See: Walker and La Berge, Inc. v. Halligan, 344 So.2d 239 (Fla.1977). For the same reasoning, the Special Deputy rejects the Petitioner’s argument that § 443.-08(3)(g)l., supra, is amended by Chapter 79-308, § 4, Laws of Florida is applicable in the instant case.”

This report was appealed to the Director of the Division, who entered a Final Agency Order sustaining same and this appeal ensued.

The facts were stipulated to; the Deputy adequately set forth the law applicable to the facts; there was no question but that Ackerley succeeded to the going business and enterprise of Donnelly and Empire and, as such, was a successor employer under the statute. Therefore, no error has been made to appear in the Final Agency Order. See: Escambia Mid-County Development Corporation v. Division of Employment Security, 356 So.2d 855 (Fla. 1st DCA 1978); Walker and La Berge, Inc. v. Halligan, 344 So.2d 239 (Fla.1977); compare: J. A. Miles Oil Company, Inc. v. Division of Employment Security, 381 So.2d 1188 (Fla. 2d DCA 1980); Edwin Browder, Jr., t/a Browder-Kirtland Sales Co. v. State of Florida, Department of Labor and Employment Security, Division of Employment Security, 375 So.2d 1141 (Fla. 3d DCA 1979); Section 443.08(3)(g)1., Florida Statutes (1977).

The Final Agency Order is affirmed.

Affirmed.