author: BOWEN, Judge.

text:
    Phillip Ray EARLY v. STATE.
    6 Div. 300.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    Rehearing Denied Nov. 25, 1980.

      Roy W. Williams, Jr. and James F. Berry, Cullman, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

On the morning of July 20, 1979, the defendant and two companions forced their way into the home of Benny and Carrie Ragsdale Dunn. The three men bound and gagged the elderly couple and beat them demanding to know where they kept their money “stashed”. After ransacking the house, the trio left taking with them a total of two dollars. Thirteen days later, Mrs. Dunn died from causes initiated by the beating. For his part in these crimes, the defendant was indicted and convicted for the first degree murder of Mrs. Dunn. Sentence was life imprisonment.

I

Initially, the defendant contends that Alabama Code Section 12-21-220 (1975) requires the trial judge to instruct the jury that the failure of an accused to testify cannot be held against him even when such a charge is not requested.

Here the defendant did not testify and did not request an instruction on the legal consequences of his failure to do so. The trial judge did not instruct the jury on this matter. After his charge, the judge asked counsel, “Anything for the record?” Both defense counsel separately replied, “No, Sir,” and no objection or exception was taken to the court’s oral charge.

Section 12-21-220 removes the common law incompetency of a defendant to be a witness in his own behalf and is designed to prevent adverse comment by the prosecutor on the defendant’s failure to testify. “[I]t has long been the law of this state that the constitutional guarantee against self-incrimination (Art. [I], Section 6, Alabama Constitution 1901), as augmented by the above referenced statute [§ 12-21-220], renders the refusal of a requested jury instruction on the legal effect of an accused’s exercise of that right reversible error.” Perry v. State, 368 So.2d 310, 312 (Ala.1979) (emphasis added).

The failure of the trial judge to instruct the jury that no inferences should be drawn against the accused because of his failure to testify is not error where that instruction was not requested. Indeed, some appellate courts have found error where the judge instructs on his own initiative without a request from the accused. See Smith v. State, 370 So.2d 312, 316-17 (Ala.Cr.App.), cert. denied, 370 So.2d 319 (Ala.1979).

In the absence of a request, objection or exception, there is no reversible error in the trial judge’s failure to instruct on a principle of law. Blythewood v. State, 373 So.2d 1170 (Ala.Cr.App.) cert. denied, Ex parte Blythewood, 373 So.2d 1175 (Ala.1979); Flanagan v. State, 369 So.2d 46 (Ala.Cr.App.1979); Barclay v. State, 368 So.2d 579 (Ala.Cr.App.), cert. denied, Ex parte Barclay, 368 So.2d 581 (Ala.1979). The mere failure of a court to charge on any given subject in the absence of a proper request presents nothing for review. Jarrell v. State, 251 Ala. 50, 36 So.2d 336 (1948); Kelly v. State, 31 Ala.App. 194, 13 So .2d 691 (1943).

II

We have carefully reviewed the evidence in this case and find that the testimony of the accomplice was amply corroborated. We are firm in this conclusion and do not think that there is any merit to the defendant’s contention that the evidence is insufficient to support the verdict. Andrews v. State, 370 So.2d 320 (Ala.Cr.App.1979), cert. denied, Ex parte Andrews, 370 So.2d 323 (Ala.1979); Jacks v. State, 364 So.2d 397 (Ala.Cr.App.) cert. denied, 364 So.2d 406 (Ala.1978).

The robbery and beatings occurred in Mr. Dunn’s home. Before his eyes were covered with tape, Mr. Dunn saw the defendant armed with a shotgun. Mr. Dunn was also able to identify the defendant’s two companions, Edward Smith and Melvin Pope. Bound, gagged and taped, Mr. Dunn heard the men slapping his wife, who had been tied to a chair across the table from him. Mr. Dunn was also assaulted but could not tell who hit him.

The men stayed approximately one hour “tearing the house up looking for money.” All they found was the two dollars Mr. Dunn had in his wallet.

When the three criminals left, Mr. Dunn managed to free himself. After removing the tape from his eyes, he discovered his wife bound and gagged in the chair. She was unconscious and to Mr. Dunn’s knowledge she never regained consciousness before her death.

We note that appellate counsel states in brief: “We admit to this court that there was [corroboration] sufficient to show the crime of robbery.” In this factual situation the crimes of murder and robbery are inseparably intertwined so that the defendant’s presence for one crime implies his involvement in the other.

Further corroboration was provided by Doug Hardin and Danny Johnson. Within one hour after the crime, the defendant, Pope and Smith stopped Hardin and Johnson on the highway. The defendant told Hardin “just about the old woman and the old man”; “That they had been out there and robbed them and got $2.00 and something off them.” Hardin testified that Pope and Smith told him about “just robbing an old woman and an old man and beating them up.”

On this same occasion, Johnson talked to the defendant and Edward Smith. Either Smith or the defendant “said something about somebody had been robbed and beat up”; “They just said a man and a woman, beat up and robbed them.” These statements were made in the defendant’s presence and were properly admitted into evidence. Eaton v. State, 280 Ala. 659, 662, 197 So.2d 761 (1967).

This was sufficient corroborative evidence. Miller v. State, 290 Ala. 248, 275 So.2d 675 (1973). Evidence of the defendant’s proximity, opportunity and association may constitute sufficient corroboration of an accomplice’s testimony. Kimmons v. State, 343 So.2d 542 (Ala.Cr.App.1977). The statements made by the defendant to others shortly after the commission of the crime and the statements made in his presence are corroborative evidence. Dunn v. State, 28 Ala.App. 396, 187 So. 641, cert. denied, 237 Ala. 474, 187 So. 643 (1939); Davis v. State, 257 Ala. 447, 59 So.2d 592 (1952). Mr. Dunn’s testimony alone was sufficient corroboration, Floyd v. State, 378 So.2d 270 (Ala.Cr.App.), cert. denied, Ex parte Floyd, 378 So.2d 273 (Ala.1979).

We have carefully searched the record for error prejudicial to the defendant. We have found none. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Ex parte Phillip Ray EARLY. (Re: Phillip Ray Early v. State of Alabama).
    80-174.
    Supreme Court of Alabama.
    Jan. 23, 1981.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and MADDOX, JONES and SHORES, JJ., concur.


author: BOOKOUT, Judge.

text:
    Reginald Dwight WOODSON v. STATE.
    6 Div. 113.
    Court of Criminal Appeals of Alabama.
    Oct. 28, 1980.
    Rehearing Denied Nov. 25, 1980.

      Robert R. Bryan and Roger C. Appell, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Second degree murder; sentence: fifty years’ imprisonment.

On the afternoon of September 28, 1978, Florene Gillespie arrived at her home in the Woodlawn section of Birmingham, Alabama. As she exited her automobile in front of her house, she was felled by a gunshot to her left leg. She was taken to a local hospital where her leg was amputated above the knee; however, she died the next day as a result of the gunshot wound.

The appellant was arrested as a suspect in this case on September 30,1978, his eighteenth birthday. Before a judicial determination had been made to try the appellant as an adult, he was interviewed while incarcerated in the Jefferson County jail by television news reporter Sally Sears of WAPI-TV. During this video taped interview, the appellant confessed his guilt to the murder of Mrs. Gillespie. The appellant’s legal counsel was not present during this interview.

The sole issue presented on this appeal concerns whether the extrajudicial confession of the appellant was properly admitted at trial. The appellant in his brief breaks this contention into two parts: (1) whether “a statement made by a child, while in custody and without counsel, is inadmissible pursuant to § 12-15-67, Code of Alabama 1975;” and (2) whether the failure to advise the appellant of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), before the interview vitiates the confession.

Code § 12-15-67 provides:

“Unless advised by counsel, the statements of a child or other information or evidence derived directly or indirectly from such statements made while in custody to police or law enforcement officers or made to the prosecutor or probation officer during the process of the case, including statements made during a preliminary inquiry, predisposition study, informal adjustment or consent decree, shall not be used prior to a determination of the petition’s allegations in a delinquency or in need of supervision case or in a criminal proceeding prior to conviction.”

See also Rule 21, Alabama Rules of Juvenile Procedure. The appellant comes within the definition of “child” as set out in Code § 12 — 15—l(3)(b>.

Section 12-15-67 and Rule 21, supra, “provide that statements made by a child to law enforcement authorities are inadmissible unless the child is advised by counsel.” (Emphasis added.) Carpenter v. State, Ala., 378 So.2d 730 (1979). The principles of Miranda apply only to confessions made to law enforcement officers or their agents. Truex v. State, 282 Ala. 191, 210 So.2d 424 (1968). Therefore, the determinative question in both contentions of the appellant is whether reporter Sally Sears was an agent of law enforcement authorities. In reaching this determination, we must look to the circumstances surrounding the giving of the confession. Allen v. State, 53 Ala.App. 66, 297 So.2d 391, cert. denied, 292 Ala. 707, 297 So.2d 399 (1974). See also Lippold v. State, Ala.Cr.App., 365 So.2d 1015 (1978), cert. denied, Ala., 365 So.2d 1022 (1979).

In the instant case an extensive voir dire examination revealed the following: Sally Sears interviewed the appellant at the Jefferson County jail on November 11, 1978. This was the third interview of juveniles that Ms. Sears had conducted for a series of stories she was doing on juvenile justice. She specifically selected the appellant for an interview because of the nature of the charge against him. She was familiar with the name of the appellant because of a recent “break-out” and two robberies of which he was accused. Someone in the Family Court had first told her the appellant’s name and later Lionel Bragan, warden of the Jefferson County jail, also gave her his name.

Ms. Sears received clearance to interview the appellant from the jail warden; however, she said no one from the district attorney’s office or any police officer instructed her to interview the appellant.

The following portion of the interview was played on video tape for the trial court:

“Q. Do you think that you were getting the kind of legal help that you need?
“A. Which I would admit that I did the murder but, you know, I wasn’t shooting at the lady, but I still did it so, you know, I had to do the time for it. But something I ain’t done I ain’t got no business doing the time for it.”

The answer was not responsive to the question. Ms. Sears testified her purpose was not to extract a confession from the appellant. Her question was certainly not phrased to elicit an incriminating statement from the appellant. She was merely asking if he was satisfied with his legal counsel.

Ms. Sears did not approach law enforcement authorities to reveal the contents of the interview. She was contacted by a member of the district attorney’s office after the interview was shown on television. She said the caller, whose name she did not recall, “recognized from the circumstances who the person was” that she had interviewed and said she would be subpoenaed. She first disclosed the identity of the appellant during direct examination in Family Court on December 4,1978, after answering the subpoena.

The appellant testified that on the day of the interview the guards in his cell block told him to “go walk and talk.” This meant to the appellant to “go talk to my lawyer.” When he reached the interview area, he saw Sally Sears and an unidentified male (television cameraman). The appellant knew that neither was his attorney.

Ms. Sears introduced herself to the appellant and asked him into the interview room for the purpose of interviewing him about juveniles. The appellant had been previously advised by his attorney not to talk with anyone but the attorney or the appellant’s mother. The appellant stated he disregarded this advice because “at the time I thought I did it [committed the crime],” and he felt like he had no choice. The appellant testified that no one made any promise or threats to induce him to participate in the interview.

In summary we find the following factors:

(1) Ms. Sears was pursuing a legitimate news story.
(2) Ms. Sears did not voluntarily reveal the appellant’s identity.
(3) The appellant was not coerced into the interview.
(4) The appellant disregarded the advice of his lawyer in granting the interview.
(5) The appellant’s confession was a spontaneous statement that was not responsive to the question.
(6) The purpose of the interview was not to extract a confession.

Our review of the circumstances convinces us that the trial court was correct in finding that Ms. Sears was not so connected with law enforcement authorities as to be an agent for them. The appellant’s incul-patory statement was not rendered inadmissible by Code § 12-15-67 nor Rule 21, ARJP. It was not made to law enforcement officers or to their agent. Carpenter, supra. The confession was likewise not rendered inadmissible pursuant to Miranda for the same reasons. Truex, supra. Although not argued in appellant’s brief, we find the Sixth Amendment inapplicable. Neither Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), nor United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), applies to the instant case because law enforcement agents here did not deliberately elicit statements from the accused in the absence of counsel nor intentionally create a situation likely to induce incriminating statements without the assistance of counsel.

AFFIRMED.

All the Judges concur.

      . Interviewed simultaneously with the appellant was another inmate, Eddie Merritt.

      . The identity of appellant was not revealed, and his face was not shown during the television interview.


text:
    Ex Parte Reginald Dwight WOODSON. (Re: Reginald Dwight Woodson v. State of Alabama).
    80-150.
    Supreme Court of Alabama.
    Jan. 23, 1981.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and MADDOX, JONES and SHORES, JJ., concur.


author: PER CURIAM. PER CURIAM.

text:
    Edwin SANCHEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 79-663.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1979.
    On Rehearing Jan. 29, 1981.
    Whitman, Wolfe & Gross and Maynard A. Gross, Miami, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and SCHWARTZ, JJ.
   PER CURIAM.

Reversed and remanded on the authority of the holding in State v. Frost, 374 So.2d 593 (Fla. 3d DCA 1979).

Before HUBBART, C.J., and BARK-DULL, HENDRY, SCHWARTZ, NESBITT and BASKIN, JJ.

ON REHEARING EN BANC

PER CURIAM.

Upon rehearing en banc, we concur in the original panel decision, and therefore, reverse the final order of the lower court. State v. Frost, 374 So.2d 593 (Fla. 3d DCA 1979); we remand for new trial.

Reversed and remanded.

HUBBART, C.J., and NESBITT, J., dissent.


author: ANSTEAD, Judge.

text:
    STATE of Florida, Appellant, v. Guillermo Gaston GODOY, Appellee.
    No. 79-1312.
    District Court of Appeal of Florida, Fourth District.
    May 7, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., and Michael W. Strickland, Legal Intern, West Palm Beach, for appellant.
    Nicholas J. Capuano, Miami, for appellee.
   ANSTEAD, Judge.

At issue is whether a defendant’s waiver of speedy trial rights in an initial prosecution for robbery applies to the prosecution of a second information charging the defendant as an accessory after the fact to the same robbery that formed the basis of the initial prosecution. We hold that the waiver does apply to the second information and reverse the trial court’s order of discharge.

The positions of the parties are virtually identical to those involved in State v. Corlew, 382 So.2d 787 (Fla.2d DCA 1980). Because we agree completely with the views expressed by Judge Scheb in that opinion we quote with approval his analysis of the parties’ positions and the controlling authorities:

The state contends that Corlew’s waiver of his right to be tried within 180 days was effective as to the state’s amended information since the amended information was based on the same conduct or criminal episode as the original information. Homer v. State, 358 So.2d 1176 (Fla.3d DCA 1978); State v. Luck, 336 So.2d 464 (Fla.4th DCA 1976). Corlew, however, seeks to sustain the trial court’s ruling on the basis of State v. Boyd, 368 So.2d 54 (Fla.2d DCA 1979). He asserts that Boyd stands for the proposition that a speedy trial waiver does not apply to an amended information charging a more serious crime than the original information. We disagree.
Although Boyd involved a second information which charged the same crime as the original information, the basis for this court’s decision was that the charge in both informations arose out of the same criminal conduct. Id. at 55. Moreover, in Boyd this court cited Homer which held that a waiver under an information charging a defendant with driving while intoxicated applied to a second information charging vehicular homicide. Since the second information in Homer charged a more serious crime than the original information and Boyd relies on Homer, Boyd does not support Corlew’s position.

Similarly here, the trial court granted the motion for discharge on the grounds that the second information did not charge the same exact crime as was charged in the first information. The second information, instead of charging the defendant with direct participation in the robbery, alleged that he was an accessory after the fact. We believe that charge was based upon the same criminal conduct or episode as alleged in the first information and that the waiver of speedy trial filed as to the first information applied to the second information. State v. Luck, 336 So.2d 464 (Fla.4th DCA 1976); Clark v. State, 318 So.2d 513 (Fla.4th DCA 1975).

Accordingly, the order of discharge is hereby reversed with directions for further proceedings consistent herewith.

DOWNEY and HERSEY, JJ., concur.


author: BOOTH, Judge. PER CURIAM. ROBERT P. SMITH, Jr., J.,

text:
    NORTH BREVARD COUNTY HOSPITAL DISTRICT, INC., etc., Appellant, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION et al., Appellee.
    No. II-407.
    District Court of Appeal of Florida, First District.
    May 23, 1980.
    Rehearing Denied Sept. 9, 1980.

      Joe D. Matheny of Henderson, Matheny & Jones, Titusville, Donald H. Wilson, Jr., W. Reynolds Allen and Donald T. Ryce, Jr., of Allen, Ryce & Wilson, Tampa, for appellant.
    Philip P. Quaschnick, Tallahassee, Mark F. Kelly and Richard H. Frank of Frank & Meyer, Louis V. Cianfrogna, Tampa, for appellees.
   BOOTH, Judge.

This cause is before us on appeal from a final order of Public Employees Relations Commission (PERC) refusing to set aside a representation election and certifying the Laborer’s International Union of North America, Local No. 666 (Union) as exclusive bargaining agent for the employees of North Brevard County Hospital District, Inc., (Hospital). The Hospital seeks to set aside the election on the grounds that, inter alia, the Union failed to comply with the registration requirements of Florida Statute Chapter 447 and committed unfair labor practices.

On December 23, 1974, the Union filed a petition for certification pursuant to Chapter 447 of Florida Statutes, seeking to represent certain hospital employees. The Hospital filed a motion to dismiss the Union’s petition based, inter alia, on violation of 447.305 (failure to properly register). The Union withdrew its petition.

On February 3, 1975, the Union filed a second petition. The evidence is uncontra-dicted that the Union was still not in compliance with § 447.305 at the time of its second petition. The Hospital again moved to dismiss on the same grounds as its prior motion. On April 15,1975, a public hearing was held to permit the parties to present evidence relevant to the determination of an appropriate bargaining unit. At that time the hearing officer denied the Hospital’s motion to dismiss.

On October 22, 1975, PERC conducted a non-evidentiary hearing and adopted the hearing officer’s denial of the Hospital’s motion to dismiss on the basis that the Hospital had failed to file exceptions to the hearing officer’s rulings. At that hearing, PERC found that the Union had not filed its annual financial report required by Florida Statute § 447.305, determined that the Union’s records were being held in connection with a grand jury proceeding and ordered the election held 45 days after the Union filed its financial report. At the October 22 hearing, the Union represented to PERC that the filing of the financial report would be made within 15 days from the date of the hearing or the Union would withdraw its petition for certification. Following the Union’s representations that the financial report would be “immediately filed with you” PERC ruled that the election would be held 45 days from filing of the report and did not require that the Union file by any day certain.

Contrary to its representation, however, the Union neither filed its financial statement within 15 days of October 22, 1975, nor withdrew its petition. Indeed, it was not until February 24, 1976, 123 days after the hearing, that the Union filed its financial statement.

On March 25, 1976, the chairman of PERC ordered, inter alia, that an election should be held within 45 days. The Hospital again filed a motion to dismiss based on the error of PERC in treating the petition as valid in spite of the Union’s failure to comply with the statutes. The Hospital also filed a petition for writ of certiorari and a motion to stay with this Court and with PERC. All of these were denied.

Five days before the election, the Union filed a lawsuit against the Hospital. The following day, the Union’s business agent, Mr. Tyler, released a statement to the press that the suit was based on the Hospital’s delay of the bargaining process and violation of the employees’ constitutional rights. In other press releases and in meetings with employees, the Union represented, inter alia, that the suit was based on the Hospital’s “stalling the Union’s progress and the employees’ right to vote on the Union issue. . The suit claimed damages in the amount of $3.5 million based on allegations, inter alia, that:

“Since on or about September 1,1974, the defendants have been embarked upon a pattern, practice, campaign, scheme and intentional course of action designed to deprive employees [of the Hospital of] their rights of free speech, free assembly and free association. . . . ”

There were no specific allegations of wrongdoing or affidavits supporting the general averments.

Between the filing of the suit and the election, the Union held meetings with the employees, and discussed the lawsuit. In addition, there were releases to the newspapers and handbills distributed by the Union concerning the lawsuit, right up to the day of the election. The Union’s business agent told the employees that they were to be the beneficiaries of the suit and each employee would be paid directly $5,000 of the damages awarded.

At the election, held April 28, 1976, the Union won by a vote of 181 to 158.

It is undisputed that the employees did not see the complaint. Thus even could we assume the ability of the employees to interpret and evaluate the complaint, such opportunity did not exist. The critical point is what the Union business agent told the employees was the basis of the suit. The record shows that the Union business agent told the employees that the Hospital’s delay of the election and bargaining process, with the resulting loss of wages and benefits to employees, was the basis of the lawsuit. The employees were told that they had been “done wrong” by the Hospital and that the wrong done was worth $3.5 million in damages.

The Hospital challenged the election on a number of grounds, and submitted evidence in support thereof. Thereafter, the chairman of PERC issued a report on objections which recommended that all of the Hospital’s objections be overruled and the results of the election certified. On October 4, 1976, the chairman of PERC certified the Union as the exclusive bargaining agent for the employees in the bargaining unit.

The Hospital filed a motion to revoke certification alleging that the chairman’s certification was invalid since objections to the election were still pending before PERC, and because only PERC, rather than its chairman, had statutory authority to issue a certification. Thereafter, the Hospital filed a request for review of the chairman’s report on objections. On November 29 and 30, 1976, PERC held a hearing on the Hospital’s motions. PERC decided to vacate the chairman’s report on objections and directed another investigation, ordered that another report on objections be issued following investigation, and revoked the Union’s certification. PERC issued an order which limited the chairman’s investigation of the objections to two issues, one of which was the Union’s filing of the federal lawsuit. The chairman issued “Supplementary Report on Objections” recommending dismissal of the objections under investigation.

On June 28, 1977, the Hospital filed a request for review of this Supplementary Report. Six months later, on January 16, 1978, PERC issued the final order giving rise to the instant appeal. In that order, PERC ruled against the Hospital on all issues and certified the Union as agent for the bargaining unit.

I. REGISTRATION OF EMPLOYEE ORGANIZATIONS

On appeal to this Court, the Hospital urges, inter alia, that PERC erred in failing to dismiss the Union’s petition for certification on the ground that the Union had failed to properly register. Florida Statute § 447.305 states in pertinent part:

“447.305 Registration of employee organization.—
(1) Every employee organization, prior to requesting recognition by a public employer for purposes of collective bargaining, or prior to submitting a petition to the commission for purposes of requesting a representation election, shall adopt a constitution and bylaws and shall register with the commission by filing a copy thereof, together with a report in a form prescribed by the commission, and an amended report whenever changes are made, which shall include:
* * * * * *
(d) The current annual financial statement of the organization.
# * * ‡ * $
(2) Every employee organization shall file annually with the commission a financial report
♦ # * 9k * *
(6) An employee organization which is not registered as provided in this section is prohibited from requesting recognition by a public employer or submitting a petition requesting a representation election. This prohibition shall be enforced by injunction upon petition of the commission to the appropriate circuit court.” (e. s.)

Under the foregoing statute an employee organization may not request recognition nor submit a petition requesting a representation election unless that organization has on file with PERC a current annual financial statement.

In Bay County Board of County Commissioners v. PERC and Teamsters Local 991, 365 So.2d 767 (Fla. 1st DCA 1978), a properly registered Union had filed a representation petition with PERC, an election was held and the Union received the majority of the vote. After several proceedings PERC found that the Union had engaged in campaign misconduct which warranted setting aside the election. A new election was held in which the Union prevailed. Although the Union had properly registered prior to the first election, in the hiatus between the two elections its registration had lapsed. After the election, PERC permitted the Union to update its registration and subsequently certified it as the exclusive bargaining representative for the employees.

In the Bay County case, supra, PERC and the Union contended that § 447.305(6) “only requires registration as a condition precedent to requesting recognition by a public employer” and, therefore, since the Union was properly registered at the outset, but had allowed its registration to lapse, it could “update” its registration after the election and be certified. In setting aside the election, we held (365 So.2d at 769):

“Teamsters and PERC urge that F.S. 447.305(6) only requires registration as a condition precedent to requesting recognition by a public employer or submitting a petition requesting a representation election. However, we construe the statute in its entirety and more broadly. . It is obvious that the legislature intended the information required of employee organizations under the statute to be available to interested parties during and preceding the election.
This case is a good example of an instance where information concerning the financial records of a union needed to be available to the public employees before those employees could make an informed free choice in the election. . ”

In the instant case the Union contends that it may petition requesting recognition and have proceedings continue on its petition for over a year without complying with § 447.305, so long as it files its financial statement prior to the election. Here, the financial statement was filed, and Union properly registered prior to the election, but PERC failed to enforce the statutory requirements as a precondition to PERC’s consideration of the Union as a “registered employee organization” (Rule 8H-1.10 infra at note 6).

The Union claims the registration requirements of § 447.305 are “hyper-technicalities.” We disagree. In Bay County Board of County Commissioners v. PERC, supra, we addressed one of the purposes of the registration requirements, to wit: That of having financial and other information on the Union available for a significant period of time prior to the election so as to allow employees to make an informed free choice in the election. Registration is also a precondition to the Union’s seeking recognition in the first instance. The public interest requires registration requirements in order to prevent irresponsible or unqualified groups from seeking recognition as bargaining agents for employees in public institutions. PERC’s rules recognize its obligation to verify Union registration status. Every employee organization seeking recognition must, by the terms of the statute and rules, be prepared to submit full credentials, including financial report, at the time it files its petition and to maintain that registration in a current status throughout the proceedings for recognition.

The decision in Laborers International v. PERC, 336 So.2d 450 (Fla. 1st DCA 1976), is not to the contrary. In that case, a union sought to intervene in an election proceeding pursuant to PERC Rule 8H-3.05 which requires that the employee organization seeking to intervene file within 15 days of the date of the petition for certification filed by the competing employee organization, or to obtain consent of the chairman of PERC. On these facts the Court held that it was improper for PERC to eject the intervening union from the proceedings and that they should have been allowed reasonable time to comply and participate in the election. In Laborers International, the election proceedings were instituted on petition of a properly registered union and were proceeding on that petition at the time the intervening union sought status as an intervenor. Further, at the time of the first PERC meeting considering the petitioner’s intervention, the petitioner was in compliance with the registration requirements. In the instant case, the employee organization seeking recognition is the initiating party, thus in control of the time requirements, and PERC proceedings on its petition have been continuing, over objection, for over one year despite lack of compliance with the statute. The Laborers International case does not support the Union’s position here that a petition for certification may be entertained while the Union is in noncompliance with the statute. The statute on its face precludes such a holding.

It is uncontested that the Union’s financial report for the 1974 fiscal year was not filed until February of 1976, with the result that its registration lapsed April 1, 1975. Therefore, the Union was not registered at the time of the April 15, 1975, hearing before the hearing officer, nor was it registered at the October 22, 1975 hearing. PERC should have dismissed the Union’s petition for certification without prejudice to refile at such time as the requirements of the statutes and rules were complied with. PERC’s failure to require compliance with the statutory mandate and PERC’s rules on registration subjects both the public employer and the public employees to the electioneering activities of unregistered unions.

II. UNFAIR LABOR PRACTICES

The other issue to be considered on appeal is alleged unfair labor practices. The Hospital contends that the filing of a suit for $3.5 million in damages accusing the Hospital of violating the rights of its employees and leading the employees to believe that the Union’s suit would result in direct monetary benefits to each employee, constituted grounds for setting aside the election. The Union does not contest the facts concerning the suit nor the statements made to the employees about benefits to them from the suit, but contends that these were permissible campaign tactics.

The record reveals that for the first two of the three week campaign period, there was little Union activity. Then, barely four working days before the election, the Union filed its lawsuit in federal court. The un-eontradicted evidence is that the Union represented to the Hospital employees that the lawsuit was based on the Hospital’s delay of the bargaining process and election; that as a direct result of the delay the employees had lost wages and fringe benefits; and that the employees would be the beneficiaries of damages recovered in that suit.

PERC, in its order validating the election, “expressly abstains from deciding whether the allegations made by Laborers in its lawsuit are a substantial departure from the truth” and states:

“[I]t is unnecessary for the commission to make this determination, even assuming the allegation in the complaint were a material misrepresentation under Hollywood Ceramics since the hospital had ample opportunity to respond to the lawsuit.”

The foregoing rule, though citing Hollywood Ceramics, 140 NLRB 211 (1962), comes close to the ruling in Shopping Kart Food Market, an NLRB decision officially adopted by PERC four months after its order in this case, and argued here by PERC and the Union. The Shopping Kart decision overruled Hollywood Ceramics and announced a rule “declining to examine oral or written statements for mere truth or falsity. . . . ” and held the Board would “no longer set elections aside on the basis of misleading campaign statements.” Several months after oral argument in this case, the Shopping Kart case was overruled and the rule of Hollywood Ceramics restated by the Board in General Knit of California wherein the Board disapproved the Shopping Kart holding that the NLRB would “no longer interest itself in ‘the truth or falsity of the parties’ campaign statements’ but would leave it to the employees themselves to divine and sort out the truth or falsity of all the statements made in an election campaign. . . . ”

In City of Punta Gorda v. PERC, 358 So.2d 81 (Fla. 1st DCA 1978), this Court affirmed PERC’s determination that there had been no misrepresentation and that the election was valid, stating (358 So.2d at 83):

“As to the unfair campaign tactic charges, PERC has adopted the test found in Hollywood Ceramics Co., 140 N.L.R.B. 221, 224, 51 L.R.R.M. 1600 (1962), which allows the setting aside of union elections only when there has been a substantial departure from the truth, at a time which prevents the other party from making an effective reply, so that the misrepresentation may reasonably be expected to have a significant impact on the election. We have previously recognized the discretion which should be accorded expert tribunals in their particular areas of special competence and expertise.”

The rule requires inquiry into the materiality of the misrepresentation and the opportunity for effective reply by the opposing side. Effective reply requires PERC to consider the nature of the misrepresentation made, the circumstances under which it is made and disseminated, as well as the time available, in order to determine whether effective reply is possible.

PERC’s obligation to determine that the challenged election was fair is not satisfied by the computation of hours or days between the making or dissemination of the misrepresentation and the election. The time factor, as well as the ultimate ability to respond, must involve a consideration of the nature of the misrepresentation itself. Here, the misrepresentations were: (1) made and disseminated by the Union at meetings, through press releases and circulation of handbills; (2) backed up by filing a lawsuit; and (3) compounded by misrepresenting the basis for the lawsuit filed. PERC and the Union do not contend in briefs and argument to this Court that the Hospital caused delay in the election. Thus, although the complaint is sufficiently vague to include anything, since the Hospital did not cause the delay, that could not be the basis of the federal suit. The Union’s pre-election statements to the contrary were a misrepresentation. The filing of the lawsuit itself, which was reported in the press on the day of its filing and with press releases each day thereafter until the election, added credence to the Union’s misrepresentations against the employer. Effective response, outside the judicial processes of the court, was not possible. The Union was in the position of having presented its charges to the court, an impartial arbiter, and having those charges there pending (presumably accepted by the court) with no possibility of resolution of the merits, if any, of the suit prior to the election.

In National Laborer Relations v. Cactus Drilling Corporation, 455 F.2d 871 (CA 5th 1972) the court was concerned with union misrepresentations that other oil drilling contractors (employers) had told the union they would have to take back pay raises already granted to the employees if the union lost the election. This misrepresentation was made at least five days prior to the election. In evaluating the misrepresentation, the Fifth Circuit Court of Appeal announced the Hollywood Ceramics rule as follows:

“This court, relying on the Board’s previous pronouncements, has formulated a test for evaluating questioned campaign communications:
(1) Whether there has been a misrepresentation of a material fact;
(2) Whether the misrepresentation came from a party who was in an authoritative position to know the truth, or who had special knowledge of the facts;
(3) Whether the other party in the election had adequate opportunity to reply and to correct the misrepresentation;
(4) Whether the employees had independent knowledge of the misrepresented fact so that they could effectively evaluate the propaganda.”

The court then found that the statement concerning wage rollbacks met all four tests and required setting aside the election. Concerning the time factor, the court noted that the letter making the misrepresentation was sent out either on July 3, or on July 9, depending on whose version of the facts are accepted, and the election held on July 14, and stated (455 F.2d at 875, 876):

“[ W]hile the company may have had time to frame a reply, there was no effective opportunity to correct the misrepresentation. When this point was presented initially to the hearing officer, it was rejected. The hearing officer, relying on Hollywood Ceramics Company, Inc., 140 N.L.R.B. 221 (1962), stressed that the statements were not made at the last minute and that the employer had had ample time to reply. The principle of ample time for rebuttal grows out of the Board’s proper reluctance to police and censor the statements of parties to a certification election. The operation of the principle, however, is limited by the overriding consideration that the employees’ freedom to make an unfettered choice between the competing factions has not been destroyed. . . . While there is also certainly a proper place for the Board’s Hollywood Ceramics rule, in the context of this case a strict application of that rule is too severe.
As it was observed in Tyler Pipe & Foundry v. N.L.R.B., 406 F.2d 1272 (5th Cir., 1969):
‘It seems, in passing, that the Board relies too heavily on the Company’s opportunity to rebut the Union’s misstatements. Rebuttal is significant; opportunity to rebut, taken alone, is a different matter. It must be remembered that the stated purpose of these proceedings is to determine the uninhibited desires of the employees. Too often, the battle raging between the company and the union obscures the very subject of the focus of our attention. The fact that the company or the union fails to exercise an opportunity to rebut the lies of the other is of little moment in attempting to determine the effect of those falsehoods on the employees.”
We agree with that observation, especially in the context of the case at bar where any rebuttal by the employer would have been futile and served only to underscore in the voters’ minds the Union’s poisonous misrepresentation.” (emphasis theirs)

In Cactus, there were some 13 employers who could have made the rollback threat as represented by the union. PERC in the instant case distinguishes Cactus because in that case the employer allegedly threatening rollback was not identified, making reply difficult. Equally difficult of response is the instant case where the charges stated in the federal complaint were not sufficiently identified to be denied in any effective fashion. PERC, however, failed to fairly evaluate these circumstances and looked primarily to the length of time between the initial misrepresentation and the election, which PERC found was five days, and determined that there was adequate time for response. This is an instance where, as in Cactus, the “strict application” of Hollywood Ceramics is inappropriate, and, effective response was not possible.

This Court has held that decisions of the NLRB and the federal courts under the NLRA are instructive. We have also recognized the expertise of PERC in the area and its authority to establish proper rules and standards in the matter. Pasco City School Board v. PERC, 353 So.2d 108, 116 (Fla. 1st DCA 1977). However, PERC’s version of the Hollywood Ceramics rule, applied in this case is too limiting of PERC’s duty to oversee the fairness of the election process in the public sector. The test applied must be one allowing full and fair evaluation of whether “the alleged material misrepresentations constitute a substantial departure from the truth which may reasonably have been expected to have a significant impact on the election. . . . ”

Other decisions under the NLRA, dealing with the making of a misrepresentation followed by the filing of a charge to support, and add credibility to, the misrepresentation, are available and instructive. In NLRB v. Santee River Wool Combing Co., 537 F.2d 1208 (CA 4th 1976), the court ordered an election set aside because a Union representative speaking at a meeting of employees on the eve of the election “created the impression” that the employer had wrongfully discharged an employee. Credence was added to this misrepresentation by the Union’s filing an unfair practice charge several days before the election. In setting aside the election, the court held (537 F.2d at 1210):

“It is the apparent correctness of a statement which must be considered in determining its effect upon the voters, and it is clear that in this case those in attendance at the meeting would have regarded the union’s representations about Pringle as authoritative.”

In Westlock, 199 NLRB 549 (1972), a misrepresentation by the union concerning the Hospital’s treatment of an injured employee was backed up by the filing of an unfair labor practice charge and publicity in the newspaper as to the charge. These facts were held to require setting aside the election. To like effect is Bor-Ko Industries, Inc., 181 NLRB 292 (1970), wherein two days before the election union representatives told employees that the employer had been cheating on overtime pay; that the union had written a letter to the wage/hour division requesting an investigation; and that after the investigation was complete, the employees would receive back pay. The election was set aside.

Florida Statute § 447.501(2) proscribes conduct on the part of an employee organization “interfering with . . . public employees in the exercise of any rights guaranteed” under Chapter 447, and § 447.-501(3) provides that although expressions of argument or opinions are protected rights of free speech, expressions containing “promise of benefits” are not. The offer of improper financial inducements by, or on behalf of, a union seeking certification as bargaining agent, requires setting aside the election. Decisions under the NLRA have held elections invalid where employees were subject to improper financial inducements. In those cases, the “common thread of vio-lative conduct was promising or conferring of economic inducement.” In NLRB v. Madisonville Concrete Company, 552 F.2d 168 (6th Cir. 1977), the union arranged for the legal defense of an employee’s traffic ticket. The court ordered the election set aside. Here the Union filed a gratuitous $3.5 million damage suit on behalf of the employees it sought to represent. The implication was clear that the promise to give the damages recovered to the employees, or even to pursue the lawsuit for the benefit of the employees, would not obtain if the Union was rejected at the polls. The Union representative, Tyler, publicly stated that if the Union lost the election, “we [Union] will leave them [employees] to their fate.”

The standards in Florida in the public sector are at least as stringent as that applied in the private sector under the NLRA. PERC and this Court will diligently enforce the statutes which require the maintenance of conditions necessary for a fair election. This is in keeping with the public policy and the declared purpose of PERC, under Florida Statute § 447.201:

“It is declared that the public policy of the State, and the purpose of this part, is . to protect the public by assuring at all times the orderly and uninterrupted operations and functions of government.”

The statement of this Court in Bay County, supra, of the obligations of PERC in overseeing elections bears repeating here [365 So.2d 767, 769 (Fla. 1st DCA 1979)]:

“We observe that just as a prosecuting attorney has the duty and obligation of accomplishing fairness to the citizens he prosecutes as well as to those citizens whose rights he vindicates, so does PERC have the obligation in its functions and orders of being fair not only to employees and employee organizations but also to the public employer. The public employer, as a public entity, represents the citizens and taxpayers of Florida. Their rights are worthy of protection as well.”

Because we have resolved the dispute as above recited, we deem it unnecessary to address the other points raised by the Hospital.

Accordingly, the election is SET ASIDE and PERC’s order certifying the Union as the exclusive bargaining representative for the Hospital employees is REVERSED.

HERBERT M. KLEIN, Associate Judge, concurs.

ROBERT P. SMITH, Jr., J., concurs in result only.

ON REHEARING

PER CURIAM.

By motion for rehearing and supplemental motion for rehearing attaching news clippings, appellee union raises matters de hors the record in this case. It is alleged that, since our decision, and as a result thereof, the status of Laborers International Union of North America, Local No. 666, AFL-CIO, as bargaining agent for other public employees, has been called into question. The law is clear that matters outside the record may not be made the subject of a motion for rehearing. City of Miami Beach v. Daoud, 149 Fla. 514, 6 So.2d 846 (1942).

Other matters raised having been considered and found to be without merit, rehearing is denied.

BOOTH, J. and KLEIN, HERBERT M., Associate Judge, concur.

ROBERT P. SMITH, Jr., J., specially concurs, with opinion.

ROBERT P. SMITH, Jr., J.,

specially concurring:

I concurred in the court’s decision to vacate PERC’s order certifying Laborer’s International Union of North America, Local No. 666, as bargaining agent for these hospital employees, because the union tainted the election process with its proposal to distribute “about five thousand dollars per employee” to be collected through the suit filed in federal court on the eve of the election. The filing of the lawsuit alone would not in my opinion have justified the action we have taken, but the tantalizing verbal offers to distribute the anticipated wealth required that we rescind the election. Ante, 392 So.2d at 565, fns. 12, 13.

I did not file a separate opinion stating this view, and expressing my disagreement with the other major points of Judge Booth’s dispositive opinion, because that seemed to me at the time to be pointless debate over issues of interest only in this case, which would not change the result in which I concur. In most respects I continue in that view: my differences with the majority are concerned mainly with interpretations of the record and the extent to which I would defer to PERC’s reading of it.

It appears now that, in one respect at least, it is desirable that I record the reasons for my disagreement with the court’s original opinion. Local 666’s petition for rehearing now suggests that its status as bargaining agent for other public employees — a status either previously settled by PERC or by this court, or not called in question before now — is already being challenged in proceedings before PERC as a result of part I of the decision, holding that for Local 666’s failure to file its 1974 financial statement by April 1, 1975,

PERC should have dismissed the Union’s petition for certification without prejudice to refile at such time as the requirements of the statutes and rules [concerning filing of annual financial reports] were complied with.

Because of the collateral effect that may be contended for this decision, I wish to express my opinion that it is incorrect and in conflict with the decision of this court in Laborers International Union of North America, Local 666, v. PERC, 336 So.2d 450 (Fla. 1st DCA 1976), which held PERC in error for doing precisely what this panel majority hold PERC erred in not doing. In both cases the union failed to file its current annual financial report within 90 days after the end of its fiscal year, as required by statute and rule. In the case before us now, PERC found the union had good cause for missing the deadline, gave the union more time to file, and postponed the election and further proceedings on the representation petition until the union filed its statement; In the earlier case, under comparable circumstances, PERC ousted the union from the representation proceedings, which was tantamount to the dismissal decreed by the majority in this case. This court then held that action by PERC was error:

Under the circumstances with which petitioners [the union] were faced at the time of the Chairman’s order summarily excluding them as a party, they should have been given a reasonable time to comply with the financial statement requirement.

Thus in the earlier case we ordered that PERC should have given the union additional time to comply with the filing requirement, and should have temporarily stayed proceedings pending that event; and in this case we have ordered that PERC “should have dismissed the Union’s petition for certification . ..,” and that for PERC’s error a new election must be held, though the union did file its financial report well in advance of the election which was held.

The conflict betwen the two decisions is made clearer, if that is possible, by realization that the two cases involved the same union, this Local 666 of Laborer’s International Union of North America; the very same financial report for fiscal year 1974, which was due to be filed by April 1, 1975, and was filed in these proceedings on February 24, 1976, and in the proceedings of the earlier case before March 4, 1976; and the very same reason for not timely filing, namely, that

the finanicial records of Local 666 were in the custody of the federal grand jury in Miami, Florida, operating under the United States District Court and were, therefore, not available to it for preparation of such report. [336 So.2d at 452.]

Concerning this the court held that “good cause was shown for their previous failure to file.” 336 So.2d at 453.

The present case is not to be distinguished from the court’s earlier decision regarding Local 666 by the intimations in the majority opinion that Local 666 was improperly registered, or was in default in the filing of financial reports, before April 1, 1975, when the fiscal 1974 report was due. There is nothing in the record regarding the union’s 1973 financial report, which was the current report at the time of its registration; there was no challenge to the registration of Local 666 on grounds pertaining to the 1973 report; and the only issue presented to PERC and to this court concerning financial reports was the issue decided by this court earlier in Laborers Interational Union of North America v. PERC, 336 So.2d 450 (Fla.App. 1st DCA 1976).

Having now recorded the basis of my concurrence in the result of the majority’s original opinion and my disagreement with part I of that opinion, I concur in the order striking the news clippings and other exhibits from the petition for rehearing and in the denial of rehearing.

      . Transcript, October 22, 1975, hearing:
      “[Mr. Frank, Union attorney] And I will represent to you in the context of that rule [8H-9.01] that the appropriate financial statements will be filed within the next thirty days. Well, we anticipate the return of the records within the next thirty days. And that’s our position.
      [Mr. Mazene, Hospital attorney] For the record, we object to the hearing being held until that’s accomplished.
      ♦ # * * * *
      [Mr. Smith, PERC commissioner] Are you requesting Mr. Frank that the rules be waived on your representation that the filings will be made within thirty days?
      [Mr. Frank] That is correct, yes.
      * * * * * *
      [Mr. Frank] ... I can tell you from the conversation I had yesterday with the U.S. Attorney that those records are going to be returned in short order and that report will be prepared and immediately filed with you

        . . I am prepared and authorized to make another suggestion to you.

        If we may be accorded fifteen days from today with which to file the annual report in the event it is not filed within that fiñeen days we will withdraw the petition." (e. s.)

      . Ibid.

      . The Petition for Writ of Certiorari filed with this Court sought review of a non-final order which at that time was not reviewable under Chapter 120, Florida Statutes, under the holding of Panama City v. PERC, 333 So.2d 470 (Fla. 1st DCA 1976).

      . The Complaint was filed in the Federal Court in Orlando in the late afternoon of Thursday, April 22, 1976. The election was held in Titus-ville, where the Hospital is located, on Wednesday, April 28, commencing at 7 a. m. The Hospital learned of the suit from newspaper articles of April 23. Service of suit was perfected after the election.

      .Paragraph # 6 of the Federal complaint alleged that the Union was the duly designated representative of a majority of the employees. The facts are, however, that there had been no election, and the Union did not even have authorization cards from a majority of the employees at the time the suit was filed.

      . PERC Rules
      8H-6.01:
      “Registration Requirements, (a) Every employee organization shall adopt a constitution and by-laws prior to requesting recognition by a public employer for purposes of collective bargaining or prior to submitting a petition to the Commission for purposes of requesting a representation election and shall register with the Commission by filing therewith: (1) two copies of said adopted constitution and by-laws; (2) two copies of an annual financial report, as described in Section 6.02 hereof, which report shall reflect the financial condition of the employee organization which existed either at the time of its original creation or at the end of its most recently concluded fiscal year, whichever date is more recent; . .
      8H-1.10:
      .“Registered Employee Organization. The term ‘Registered Employee Organization,’ as used herein, shall mean any employee organization which has satisfied the registration and annual financial report requirements of the Act as determined by the Commissioner.”
      8H-3.16:
      “Investigation of Petitions, (a) Subsequent to the filing of a Petition for Certification . the Chairman shall direct an investigation by a designated agent of all pertinent questions concerning representation, including, if applicable, the registered status of any employee organization involved . . .”

      This “lapse” refers to the failure to annually update (§ 447.305(2)) the initial financial statement filed by union at time of registration (§ 447.305(l)(d)) and assumes such initial statement was filed.

      . This was a misrepresentation of the cause of the delay. The Union, by failing to file its financial report, and PERC, by not setting a time certain within which the Union had to file, were the cause of the delay in the election. The Union, not the Hospital, had control over the time of the election since under the PERC ruling on October 22, 1975, the election would be held 45 days after the Union filed its financial statement, whenever the Union chose to file.

      . 228 NLRB 1311 (April 8, 1977).

      . City of Fort Lauderdale, 4 FPER 4167 (April 17, 1978); (PERC’s brief pp. 20-22).

      . 239 NLRB 101, 102 (1978).

      . General Knit, 239 NLRB 101, 99 LRRM 1687, 11691 (1978).

      . At one of the meetings on April 22, Tyler told employees:
      “[T]he way they figured it would amount to about five thousand dollars per employee and that this represented money due by Jess Parrish [Hospital] to employees over the last two years period.”
      In addition, Tyler distributed a handbill just before the election which emphasized:
      “As you know, we have filed a suit against the Hospital for violations of your Constitutional guarantees. If it is not completely clear to you from the news article, one thing you should know that if we win the suit, any actual damages awarded will go to the employees and not to the Union.”

        . NLRB v. Madisonville Concrete Company, 552 F.2d 168 (6th Cir. 1977); Plastic Masters, Inc. v. NLRB, 512 F.2d 449 (6th Cir. 1975); NLRB v. Commercial Letter, Inc., 455 F.2d 109 (8th Cir. 1972); Collins & Aikman Corp. v. NLRB, 383 F.2d 722 (4th Cir 1967); Teletype Corporation, 122 NLRB 1594 (1959); Wagner Electric Corporation, 167 NLRB 532 (1967); and General Cable Corporation, 170 NLRB 1682 (1968).

      . Albert Trostel Packings, 229 NLRB No. 56 (1977).

      . On motion of appellant, the supplemental motion and attachments are stricken.


author: JOHN H. MOORE, II, Associate Judge.

text:
    CITY OF WINTER PARK, Florida, Petitioner, v. Michael D. JONES, Respondent.
    No. 79-1803/NT4-90.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 1980.
    Rehearing Denied Feb. 5, 1981.

      Frederic B. O’Neal of Johnson, Motsinger, Trismen & Sharp, P. A., Orlando, for petitioner.
    No appearance for respondent.
   JOHN H. MOORE, II, Associate Judge.

In this petition for writ of certiorari the City of Winter Park seeks to quash a decision of the Circuit Court reversing respondent’s conviction in county court of violating a boat registration ordinance of the City. At issue is whether the Circuit Court, in its appellate capacity, departed from the essential requirements of law by invalidating the City’s ordinance as applied to nonresident boats. We hold that it did not and deny the petition for certiorari.

The respondent, a non-resident of the City, was convicted in county court of violating § 7-3 of the City’s Code of Ordinances by operating his motorboat on waterways within the City without a city registration. The ordinance requires every owner of an inboard or outboard motorboat, operating upon any waterway, wholly or partly within the corporate limits of the City, to register his boat annually with the City. Section 7-4 of the ordinances provides for annual registration fees, the fees for “non-city” boats being twice the amount of those fees charged for “city” boats. According to Section 7-4(c), monies received from the registration fees are to be expended for the patrol, regulation and maintenance of the City’s waterways.

The opinion which the City of Winter Park seeks to quash found that:

1. Section 371.63, Florida Statutes (1977) preempted the City of Winter Park from charging a license fee for any boat not resident in the City of Winter Park.
2. The registration fee required under Section 7-3 and 7-4 cannot stand as a user fee but was a charge restricted by Section 371.63, Florida Statutes (1977) to boats resident in the City of Winter Park.
3. The City of Winter Park does not have the authority to require nonresident boats to pay a registration fee under the provisions of Sections 7-3 and 7-4 of the City of Winter Park Code and that a boat is a nonresident boat if it is kept outside the City of Winter Park.

Before we determine the validity of this order, it is necessary to discuss our jurisdiction. Review by certiorari of a decision of the circuit court acting in its review capacity is less than an entirely clear area of the law. Certiorari may not be used as a means to obtain a “second appeal”. Smith v. State, 118 So.2d 792 (Fla. 1st DCA 1960). Most decisions are in agreement that certio-rari review is limited to a consideration of whether the appellate (circuit) court had jurisdiction and proceeded in conformity with the essential requirements of law. If the appellate court had jurisdiction and afforded procedural due process rights to the petitioner the writ will not issue to correct an erroneous application of the law:

The writ has never been employed to inquire into the correctness of the judgment rendered where the forms of the law have been followed, and where the court had jurisdiction, and was therefore competent. Hence, it has been held that the supervisory jurisdiction of the court on a certiorari must be restricted to an examination into the external validity of the proceedings had in the lower court. It cannot be exercised to review the judgment as to its intrinsic correctness, either on the law or on the facts of the case. The supervisory powers of the court should not be confounded with its appellate jurisdiction. 5 R.C.L., Certiorari, § 3, page 251.

Although the decisions have been in agreement as to the principle to follow, it is unfortunate that they have not been in agreement as to the application of the principle. Two excellent law review articles are recommended for a discussion of this problem. See William Haddad, Certiorari in Florida, 29 U.Fla. Law Rev. 207; Rogers and Baxter, Certiorari in Florida, 4 U.Fla. Law Rev. 477, 497. These articles note that two frequent exceptions to the “strict review” rule have been found: one allows for review where the “wrong” rule of law has been applied by the circuit court, and the second allows for review where there is a “total lack of evidence” to support the circuit court’s decision. Clearly, certiorari review by the Supreme Court, and later by the district courts of appeal, has not been confined to the “strict review” originally contemplated. One writer has, we believe, correctly described what has in fact occurred:

The Supreme Court has often proclaimed that it will not review and weigh conflicting evidence, and that when there is evidence to support the finding of the lower court the judgment will not be disturbed, but it has not by any means always been ruled by the foregoing principle. On the contrary, the scope of substantive review by certiorari has often, for all practical purposes, been fully as broad as review by appeal in many of the cases, despite protestations by the Court to the contrary. (Footnotes omitted). 4 U.Fla. Law Rev. at 497, 498.

Exemplifying the departure from the “strict review” is Matthews v. Metropolitan Life Insurance Company, 89 So.2d 641 (Fla.1956) where the Court declared:

There is no dispute as to the facts, and the sole point for determination here is whether the trial and appellate courts applied the wrong rule of law in determining liability of the insurance company on the policy under the admitted facts. It is suggested by the insurance company that, since the scope of our review on common-law certiorari is limited to a determination of whether the “essential requirements of law have been followed in the judicial process” culminating in the judgment or order here reviewed, Wilson v. McCoy Mfg. Co., 69 So.2d 659, 665 (Fla.1954), this question cannot be reached by this court in the instant proceeding. But we have the view that the duty of a trial judge to apply to admitted facts a correct principle of law is such a fundamental and essential element of the judicial process that a litigant cannot be said to have had the “remedy, by due course of law”, guaranteed by Section 4 of the Declaration of Rights of our Constitution, F.S.A., if the trial judge fails or refuses to perform that duty. It was so held in Mutual Benefit Health & Accident Ass’n v. Bunting, 133 Fla. 646, 183 So. 321, 330 (Fla.1938), wherein the Court said: “On certiorari, we do not weigh the effect of the evidence; but we can reach it when a wrong rule of law is enforced as to its application.” And, indeed, it is unthinkable that this court, in the exercise of its supervisory jurisdiction over other courts, could not compel adherence to a principle of law heretofore established by this court in the unlikely event that a trial judge should deliberately and consciously refuse to follow our decision, even though the trial judge’s arbitrarily erroneous action in this respect had been approved and affirmed by a circuit court on appeal. While the principle of law here contended for by the plaintiff has not heretofore been established by this court, the distinction is simply one of degree and not in kind. Id. at 641-642.

Although the Matthews decision was rendered prior to the creation of the district courts of appeal, our certiorari jurisdiction on reviewing appellate decisions of the circuit courts is the same as that exercised previously by the Supreme Court. Dresner v. City of Tallahassee, 164 So.2d 208 (Fla.1964). Our difficulty is in defining what constitutes a departure from the essential requirements of law. Although a precise definition which would allow the bar to categorize every situation is virtually impossible, we find no better pronouncement on the subject than that contained in Smith v. State, supra, where Judge Wigginton stated:

Certiorari is a common-law writ which issues in the sound judicial discretion of the court to an inferior court, not to take the place of an appeal, but to cause the entire record of the inferior court to be brought up in order that it may be determined from the face thereof whether the inferior court has exceeded its jurisdiction, or has not proceeded according to the essential requirements of law. Confined to its legitimate scope, the writ may issue within the court’s discretion to correct the procedure of courts wherein they have not observed those requirements of the law which are deemed to be essential to the administration of justice. It is important, however, that the court should not broaden or extend the scope of the writ. A judgment void for lack of jurisdiction, or a proceeding characterized by a complete failure to observe essential requirements of law is subject to correction at the discretion of the court vested with the power to issue the writ. Failure to observe the essential requirements of law means failure to accord due process of law within the contemplation of the Constitution, or the commission of an error so fundamental in character as to fatally infect the judgment and render it void. Certiorari is confined to a limited review of the proceedings of an inferior jurisdiction. It is an original action in the sense that the subject matter of the suit or proceedings which it brings before the court are not there reinvestigated, tried and determined upon the merits generally as upon an appeal. (Footnotes omitted). Id. at 795.

An error must be so flagrant and of such magnitude that a party has been effectively denied his day in court before our certiorari jurisdiction will be invoked. Even though a nonfundamental error should cause reversal in the circuit court it will not prompt our certiorari jurisdiction. See, Lee v. State, 374 So.2d 1094 (Fla. 4th DCA 1979); Clermont Marine Sales, Inc. v. Harmon, 347 So.2d 839 (Fla.2d DCA 1977). Thus, the departure from the essential requirements of law necessary to invoke the jurisdiction of this Court must be of such a fundamental nature that it rises to the level of a denial of due process or so fatally infects the proceedings that the judgment cannot answer constitutional muster. This requires a case by case analysis.

We find that the circuit court adhered to the essential requirements of law in this case. Furthermore, assuming a departure, it is not such that should cause us to invoke our certiorari jurisdiction.

By adopting Section 371.62, Florida Statutes (1979), the legislature expressed its intent to establish uniform registration and licensing for all boats traveling the waters of this State. Section 371.63 then provides:

All boats registered as provided herein are declared to be motor vehicles and shall be taxed and certified as motor vehicles; however, nothing in this section shall be construed to prohibit any municipality that expends money for the patrol, regulation, and maintenance of any lakes, rivers, or waters in such municipality from regulating such boats resident in such municipalities and charging them a license fee therefor. All moneys received from such fee shall be expended for the patrol, regulation, and maintenance of any lakes, rivers, or waters of such municipality.

The first portion of the statute, in requiring all boats to be taxed and certified as motor vehicles, manifestly expresses the Legislature’s intent to preempt the registration of boats. Absent such preemption, municipalities may enact such legislation concerning any subject as may be necessary to the proper functioning of the municipal government. Article VIII, Section 2(b), Florida Constitution; Section 166.021(3)(c), Florida Statutes (1979). See, also, City of Temple Terrace v. Hillsborough Association for Retarded Citizens, Inc., 322 So.2d 571 (Fla.2d DCA 1975).

It is the second portion, or the proviso clause, of the statute which gives us concern. The statute is clear in its intent to allow a municipality that expends money for the patrol, regulation and maintenance of its waterways to charge a license fee for the regulation of boats resident in the municipality. It is not clear as to what was intended by use of the word “resident” in qualifying which boats are subject to the fee. The circuit court determined that a boat is not “resident” in Winter Park if it is normally kept outside the City, even though it may be operated on a City waterway. We find this ruling consistent with the statutory scheme of uniform boat registration, but in doing so, we do not intend to suggest any prohibition against imposition of a nondiscriminatory user fee. That issue is not before us.

Words in statutes should be given the meaning accorded to them in common usage unless a different connotation is expressed in, or necessarily implied from, the context of the statute. Gaulden v. Kirk, 47 So.2d 567 (Fla.1950). The commonly accepted meaning of “resident” is one who has an abode at a given location for an extended length of time or an object which is kept at a given location for án extended time. Each is considered to be resident at the location. We have been unable to discover any usage of the word as applying to the temporary placement of an object for a short duration.

Although it may seem ridiculous for the legislature to intend that non-resident boats using Winter Park’s waterways should not have to bear their fair share of the burden of patrol and maintenance, that is not what was before the circuit court. What was before the court was an annual registration fee for the period of July 1 through the following June 30th, the identical period covered by state registration. The registration is transferable to a new owner upon the sale of any registered boat and the fee is twice the amount for “non-city” boats as it is for “city” boats. It is readily apparent that this is a registration fee as opposed to a license fee or a user fee, exactly what the legislature intended to avoid by preempting annual registration.

Illustrative of the problems created by allowing each municipality to require annual registration we hypothetically pose the following vignette. A boat leaves the St. John’s River in Jacksonville, travelling the intracoastal waterway to Key West. Each of the several municipalities along the way maintains patrol of the waters within its corporate limits. Did the legislature intend that each municipality could require an annual registration fee from our hypothetical boat? Can each municipality in Florida require an annual registration of every motor vehicle which comes within its boundaries merely because the City patrols and maintains the roadways? We think not.

We are compelled to the conclusion that Winter Park improperly attempted to impose an annual registration requirement on all boats, resident and non-resident, using its waterways as opposed to an authorized license fee for the use of its waters. Accordingly, the trial court did not depart from the essential requirements of law and certiorari must be denied.

CERTIORARI DENIED.

JAMES C. DOWNEY and HARRY LEE ANSTEAD, Associate Judges, concur.


author: HERSEY, Judge.

text:
    FEDERATED STORES REALTY, INC., Federated Department Stores, Inc., Alan Restaurant Corp. d/b/a Danny’s Restaurant, Swensen’s of Plantation, Inc., and Palm Beach Confections, Inc., Petitioners, v. The Honorable Miette K. BURNSTEIN, a Judge of the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, Respondent, v. KINGLAND CONTRACTING CORPORATION, Intervenor.
    No. 80-463.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 1980.
    Miles E. Shlopack of Gubman, Sitomer & Lubitz, Miami, for petitioners.
    Mitchell B. Luber of Watson, Hubert, La-Salle & Clark, Fort Lauderdale, for interve-nor.
    No appearance for respondent.
   HERSEY, Judge.

Petitioners seek a writ of mandamus to compel the trial court to discharge certain mechanics’ liens under the provisions of Section 713.21(4), Florida Statutes (1979).

Claims of lien were filed against various leasehold interests in The Broward Mall for improvements made by subcontractors and materialmen pursuant to a construction contract with Kingland Contracting Corporation, the general contractor. An attempt to lien the underlying fee simple title in a similar manner was disallowed by the trial court.

Owners of the property interests (leaseholds) subjected to the liens filed a complaint for a rule to show cause pursuant to the statute.

The parties then stipulated that the lien-ors need not take action in the litigation within the 20 day period established by the statute.

Subsequently the question arose as to whether such a stipulation was viable or whether, instead, the statutory time limitation was mandatory and jurisdictional. Memoranda were submitted and after due consideration the trial court entered an order, a portion of which, pertinent to these proceedings, provided that:

It has been further argued, and memo-randa submitted, based upon the Court’s query, that Section 713.21(4) Florida Statutes requires as a jurisdictional matter that liens included in Plaintiff’s Complaint for a Rule to Show Cause should be discharged and cancelled upon the expiration of the twenty day answer period. The Court examined such memoranda and, being advised that Plaintiff, Federated, and Defendant, Kingland, entered into a written stipulation extending the period of time within which answers must be filed, orders that such stipulated extensions are not jurisdictional in nature and may be given the same effect as any stipulation to extend time for the filing of an Answer.

If the 20 day period is jurisdictional then discharge of the liens is a ministerial act permitting no exercise of discretion by the trial court. Mandamus is available “to compel the performance of some ministerial act, often one requiring a court to dismiss actions where such dismissal is required because of intervening events or because the court is about to proceed in excess of its jurisdiction.” Wincor v. Turner, 215 So.2d 3, 5 (Fla.1968). Thus mandamus is the appropriate remedy to test the correctness of the trial court’s ruling.

The statute provides:

A lien properly perfected under this chapter may be discharged by any of the following methods:
(4) By an order of the circuit court of the county where the property is located, as provided in this subsection. Upon filing a complaint therefor by any interested party the clerk shall issue a summons to the lienor to show cause within 20 days why his lien should not be enforced by action or vacated and canceled of record. Upon failure of the lienor to show cause why his lien should not be enforced or his failure to commence such action before the return date of the summons the court shall forthwith order cancellation of the lien.

Thus specific language of the statute requires that an action for enforcement be filed within 20 days or that cause be shown within that period why enforcement should not be commenced. A stipulation by the parties affected by the proceedings is “good cause” within the meaning of the statute.

Petitioner points out that what is involved here is not an ordinary civil action but a special statutory proceeding. Rule 1.010, Florida Rules of Civil Procedure provides that the rules of civil procedure do not apply to the “form, content, procedure and time for pleading in all special statutory proceedings” but these matters shall be controlled by the statute itself unless the rules provide otherwise. Petitioner correctly relies upon the case of Wesley Construction Company v. Yarnell, 268 So.2d 454 (Fla. 4th DCA 1972), for this proposition. But neither this case nor the statute under consideration speaks to the jurisdictional aspect of the 20 day limitation.

Scott v. Premium Development, Inc., 328 So.2d 557 (Fla. 1st DCA 1976), while decided on an entirely different issue, contains dicta to the effect that the appellant in that case could have made application for an order extending the time for a response to the order to show cause but failed to do so.

In Goldberger v. United Plumbing and. Heating, Inc., 358 So.2d 860 (Fla. 4th DCA 1978), we emphasized that the lienor has two alternatives under the statute: he may file an action or show cause why such an action should not be filed. A stipulation by the parties for an extension of time is, on its face, good cause for not filing an action within the initial period.

After a complaint is filed, a voluntary dismissal can be taken pursuant to Rule 1.420(a)(1), Florida Rules of Civil Procedure. To that extent, then, control of the action remains in the hands of one of the parties (or both of them if accomplished by stipulation as permitted by the rule). Surely if the parties may abate the action without prejudice they may stipulate to extend it within reason, as was done here. The orderly administration of justice is advanced, not burdened, by settlement negotiations.

Finally, the owner of a property interest subjected to a lien has recourse to Section 713.22(2), Florida Statutes (1979) to reduce the time within which action must be commenced to enforce that lien to sixty days. It would be an anomaly to interpret Section 713.21(4), Florida Statutes (1979), as exactly equivalent to that statutory provision with the exception that the period is reduced to twenty days.

We therefore determine that the 20 day period may be extended by stipulation of the parties. There being no ministerial act which the trial court should be compelled to perform we deny the petition for writ of mandamus.

WRIT DENIED.

LETTS, C. J., and ANSTEAD, J., concur.


text:
    Robert E. DOOLEY and Ann M. Dooley, Petitioners, v. Charles H. CULVER, Respondent.
    No. 80-1341.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 1980.
    Robert E. Dooley and Gaylord A. Wood, Jr., Fort Lauderdale, for petitioners.

      Peter N. Hanna, Fort Lauderdale, for respondent.
   HERSEY, Judge.

This petition for writ of certiorari seeks review of an order of the circuit court entered in its appellant capacity.

Petitioners (landlords) filed a complaint in county court seeking damages allegedly incurred by reason of increased insurance rates directly attributable to the operation of tenant’s business. Pursuant to the lease, any such increased rates were to be paid by tenant.

Tenant filed a motion to dismiss the complaint and on July 12, 1978, the court entered an order denying the motion and allowing tenant ten (10) days to file his answer. On July 28, 1978, landlord filed a motion for default on the basis that no answer had been filed. Default was then entered by the court on July 31, 1978. On August 2, 1978, tenant moved to vacate the order of default, alleging non-receipt of the July 12th order. Tenant also alleged a meritorious defense, stating that his answer would allege that the lease between the parties was void and would deny the allegations of the complaint concerning the reason for an increase in insurance premiums. The trial court denied this motion and, upon landlord’s affidavit of damages, entered a final judgment in favor of landlord.

Tenant appealed to the circuit court which vacated the order of default and final judgment, finding that the county court had abused its discretion in entering the default. The circuit court further ordered that “a reasonable attorney’s fee shall be granted Appellant [tenant] and against Ap-pellees, the amount of which shall be subject to review by this Court.”

The circuit court is vested with final appellate jurisdiction over county court cases and this finality cannot be circumvented by the device of a further appeal or certiorari. Griffin v. State, 367 So.2d 736 (Fla. 4th DCA 1979). Review by certiorari of. an order entered by a circuit court sitting in its appellate capacity requires more than a demonstration of mere error. Griffin v. State, supra, Magnus v. Century Village, Inc., 379 So.2d 145 (Fla. 4th DCA 1980). As stated in Kennington v. Gillman, 284 So.2d 405 (Fla. 1st DCA 1973) and quoted in Magnus v. Century Village, supra, at 146:

It is only when a judgment has been rendered in the absence of any competent evidence to support the judgment or material fundamental errors in applying the law that such a departure from the essential requirement of law will arise to justify a superior court to exercise its ancient power to issue the common law writ of certiorari.

Petitioners have not demonstrated that the circuit court committed such error in vacating the default. Florida has a long standing policy of liberality towards the vacation of defaults, so that the merits of a cause may be reached. Westinghouse Credit Corporation v. Steven Lake Masonry, Inc., 356 So.2d 1329 (Fla. 4th DCA 1978).

However, in awarding attorney’s fees, the circuit court did commit fundamental error. Allowance of attorney’s fees is in derogation of the common law. Accordingly, attorneys’ fees may be awarded only if provided for by contract or statute. Stone v. Jefferies, 208 So.2d 827 (Fla.1968). The rental agreement involved here contains a provision allowing attorney’s fees to landlord when he is required to institute suit for the collection of rent. There is no provision authorizing attorney’s fees to tenant under any circumstances. In the case of residential rentals, Section 83.48, Florida Statutes (1979) converts a provision which permits the landlord to recover his attorney’s fees from a defaulting tenant into a reciprocal right to attorney’s fees in a tenant who prevails in litigation involving his tenancy. No such statute exists for the benefit of the tenant of non-residential property. Thus, the circuit court was without authority to award attorney’s fees.

Accordingly, as to the award of attorney’s fees, we grant the petition for writ of certiorari and quash the judgment of the circuit court; as to vacation of the default, we deny the petition.

BERANEK and HURLEY, JJ., concur,