author: HARRIS, Presiding Judge.

text:
    William Ellison STAMPS v. STATE.
    7 Div. 701.
    Court of Criminal Appeals of Alabama.
    Feb. 5, 1980.
    James F. Hinton, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen. for appel-lee.
   HARRIS, Presiding Judge.

Appellant was convicted of buying, receiving, or concealing stolen property and was sentenced to three years imprisonment in the penitentiary. He was represented by counsel of his choice and at arraignment pleaded not guilty. After sentence was imposed he gave notice of appeal. Trial counsel represents him on this appeal.

Omitting the formal parts the indictment reads as follows:

“The Grand Jury of said County charge that before the finding of this indictment William Ellison Stamps, whose name to the Grand Jury is otherwise- unknown than as stated, did buy, receive, conceal or aid in concealing one Hi-Standard Shadow 12 gauge shotgun, serial number J02193G, of the value of $200.00; the personal - property of Charles Douglas Flanagan, knowing that it was stolen, and not having the intent to restore it to the owner, contrary to law and against the peace and dignity of the State of Alabama.”

The evidence presented by the State and that presented by appellant was in sharp conflict. At the conclusion of the State’s case appellant moved to exclude the State’s evidence on the ground, the State failed to make out a prima facie case. This motion was denied by the trial court.

Charles Douglas Flanigan testified that in September of 1978 he owned a High Standard Shadow 12 gauge shotgun, serial Number J02193G, and that he had loaned this gun to his sister-in-law, Bertie Shropshire, who lived at 1040 East Main Street, Centre, Alabama. He stated that the bolt of the shell ejector was missing at the time he loaned the gun and that it also had a scratch right behind the shell ejector. The value of this gun was $200.00. He said this gun was stolen from the home of his sister-in-law on September 17, 1978, and was recovered by the law enforcement officers. He identified State’s Exhibit 1 as his shotgun and it was introduced into evidence without objection.

Danny Smith testified that he was an investigator with the District Attorney’s Office in Cherokee County and had held this position since October of 1977; that he took part in the investigation of this missing gun and recovered it from one Joe Tierce on October 31, 1978. He stated that a number of weapons had been taken in some burglaries in Cherokee County and in his investigation he learned that Joe Tierce had bought some guns and he went to talk to Joe Tierce and in the course of his investigation recovered some guns and that State’s Exhibit No. 1 was one of the guns.

Joe Allen Tierce testified that he received a telephone call from appellant who asked him if he was interested in buying some guns. Joe’s brother was present when appellant made the telephone call and Joe talked to his brother, Lester Tierce, and he asked Lester if he thought he could sell the guns at a profit. Lester told Joe he did not know much about guns and did not know if he could make any money on the re-sale of the guns. Shortly after this conversation appellant and Lester drove to Joe’s place of business in appellant’s pickup truck. Appellant had three guns in the truck and after some negotiation Joe Tierce bought the three guns from appellant for a total of $240.00. Included in the three guns was the shotgun which was owned by Charles Flani-gan. The purchase was made on September 23,1978. The guns were placed in Joe’s store located at Pruitt’s Fish Camp where they were displayed on the wall of the store.

Pat Allen testified that he saw three guns in áppellant’s truck at Pruitt’s Fish Camp and appellant was discussing selling the guns to Joe Tierce. The next time he saw the guns they were in Joe’s store. He identified State’s Exhibit No. 1 as being one of the guns.

Blake Cline stated that he saw appellant and Lester Tierce talking to Joe Tierce while the three men were standing by appellant’s truck which had three guns in it. Cline also identified State’s Exhibit No. 1 as being one of the three guns.

Pat Allen was recalled as a witness for the State and testified that, shortly before the sale and purchase of the guns at Pruitt’s Fish Camp, appellant had asked him if he could move approximately 40 guns for appellant.

Appellant testified that he had known Joe Tierce for several years and had done many favors for him. He considered Joe a friend and was often at his place of business. He made deposits and cashed checks for him. He denied that he had ever sold any guns to Joe Tierce at any time.

Timmy Westbrook was called as a witness in behalf of appellant and testified that he was on a dove shoot on September 18,1978, along with appellant, Jimmy Ham-monds, Pat Allen and Joe Tierce. He was shown State’s Exhibit 1 and stated he saw the identical gun in Pat Allen’s truck at the dove shoot on September 18, 1978. He picked up the gun from the truck and noticed it had a defective magazine and the handle was broken. He stated that after he examined the gun he put it back in Pat Allen’s truck.

Several witnesses testified to appellant’s good character. They also said he had a good reputation for truth and veracity.

Appellant claims, in brief, that in the trial of this case the jury was without the benefit of alibi testimony “in that the appellant at the trial date had no way of knowing or any knowledge as to the dates and places that the prosecuting witnesses would testify in their efforts to obtain the conviction of appellant,” that it was only after the prosecuting witnesses had committed themselves to dates and places when the alleged offense was committed that appellant was able to recall events that conclusively proved that he was not present when the alleged offense was committed. He filed a motion for a new trial based upon newly discovered evidence that he was at a dove shoot on September 23, 1978, at the time the prosecution claimed he sold three guns, including the Flanigan gun, to Joe Tierce.

At the hearing on the motion for a new trial appellant presented considerable testimony tending to show that he was at a dove shoot on September 23,1978, and, therefore, could not have committed the alleged offense for which he stood convicted.

In Character v. State, 51 Ala.App. 589, 287 So.2d 916, certiorari denied, 291 Ala. 775, 287 So.2d 919, this Court held:

“It is the law of this state that the unexplained possession of property does not raise the presumption that the property was stolen. There must be other evidence of the corpus delicti. When this has been shown, and the stolen property, soon after the offense, is found in possession of a person, who is unable to give a satisfactory explanation of his possession, then the jury is authorized to infer his guilt. Orr v. State, 107 Ala. 35, 18 So. 142; Buckles v. State, 291 Ala. 352, 280 So.2d 814 (1972).
“The. requisite scienter for the crime of receiving stolen property may be inferred from the recent possession of stolen goods. Stanley v. State, 46 Ala.App. 542, 245 So.2d 827.
“In Buckles, supra, our Supreme Court cited with approval the following quotation from the case of Aron v. United States, 8 Cir., 382 F.2d 965, 970:
“ ‘The doctrine that possession of recently stolen property gives a permissible inference of knowledge on the part of the possessor that the property had been stolen, unless the possession thereof is accounted for in a reasonable and satisfactory manner consistent with the circumstances of the possession, is a factually sound and a necessary evidentiary rule. Without this evidentiary rule in criminal cases it would be almost impossible to consider for conviction any of the possessors or fences of stolen property unless they admitted that they knew the property to be stolen, which is an admission not likely to be forthcoming.’' ”

Appellant insists that the trial court’s denial of his motion for a new trial constitutes reversible error. We do not agree.

In Zuck v. State, 57 Ala.App. 15, 325 So.2d 531, certiorari denied, 295 Ala. 430, 325 So.2d 539, Judge DeCarlo in a unanimous opinion, held:

“The general principles applicable to a motion for a new trial on the claim of newly discovered evidence are found in Hodge v. State, 32 Ala.App. 283, 26 So.2d 274. Specifically, the court stated that such a motion must be predicated on the following requirements:
“ ‘. . . “(1) that the evidence is such as will probably change the result if a new trial is granted;. (2) that it has been discovered since the trial; (3) that it could not have been discovered before the trial by the exercise of due diligence; (4) that it is material to the issue; (5) that it is not merely cumulative, or impeaching.” ’
“Although appellate courts do not favor granting new trials on these grounds, much is left to the trial court’s discretion, and its decision will not be revised unless an abuse is shown. Hodge, supra; Aaron v. State, 181 Ala. 1, 61 So. 812; Slaughter v. State, 237 Ala. 26, 185 So. 373; Welch v. State, 28 Ala.App. 273, 183 So. 879.
“We have no reason to interfere with that exercise of discretion under the facts shown. Their credibility was for the trial judge. Dawson v. State, 44 Ala.App. 525, 215 So.2d 459.
“The concept of due diligence was explained by the Iowa Supreme Court in Westergard v. Des Moines Ry. Co., 243 Iowa 495, 52 N.W.2d 39, and we quote approvingly.
“ ‘. . The showing of diligence required is that a reasonable effort was made. The applicant is not called upon to prove he sought evidence where he had no reason to apprehend any existed. He must exhaust the probable sources of information concerning his case; he must use that of which he knows, and he must follow all clues which would fairly advise a diligent man that something bearing on his litigation might be discovered or developed. But he is not placed under the burden of interviewing persons or seeking in places where there is no indication of any helpful evidence.’ ”

The newly discovered evidence offered by appellant consists of testimony that he was seen around noon on September 23, 1978, at a dove shoot by various people. There is no testimony in the record as to the time of day that appellant allegedly sold the stolen guns to Joe Tierce. There was a time lag of several hours as to his presence at the dove field on the day of the offense.

In Washington v. State, 259 Ala. 104, 65 So.2d 704, the'Supreme Court said:

“The granting of such a motion is addressed to the sound discretion of the trial court and will not be revised on appeal unless it clearly appears that that discretion has been abused, which we cannot here affirm as a fact. Maund v. State, 254 Ala. 452, 48 So.2d 553; Slaughter v. State, 237 Ala. 26, 185 So. 373.”

In Young v. State, 283 Ala. 676, 220 So.2d 843, the court held:

“. . . Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain conviction, the denial of a motion to exclude the state’s evidence, the refusal to give the affirmative charge and the overruling of a motion for new trial, does not constitute error.”

The record reflects that on the day of sentencing appellant and his attorney appeared in open court and pleaded guilty to nine other similar cases. The court imposed a three-year sentence in each of the ten cases and specifically ordered that all sentences run concurrently. Thus, in ten cases appellant received only three years. The court suspended all the sentences and placed appellant on probation for three years.

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    D. C. HOLLIS v. STATE.
    8 Div. 237.
    Court of Criminal Appeals of Alabama.
    Feb. 5, 1980.

      Dan Warnes, Guntersville, for appellant.
    Charles A. Graddick, Atty. Gen., Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant, an indigent here and at nisi prius, was indicted in Marshall County for rape and convicted therefor by a jury. The trial court sentenced him to thirty-five years imprisonment in the penitentiary.

The alleged rape took place in a semi-isolated area to which the victim was transported in an automobile occupied by defendant and two male companions.

The transportation began when the victim was accosted as she was walking alone with her dog which she located in an area where she had gone with a female companion in the latter’s automobile. This friend did not have time to wait while the victim was searching for the dog. The victim was a student at Snead College in Marshall County.

As the victim was walking back on a road leading to the college, with her dog, the automobile in which defendant and his companions were riding came up and stopped near her and one of the men made some remark about the dog, but drove on. Then they came back and stopped again, but drove on and in a few minutes returned again. This time, according to the victim’s testimony, the defendant got out and at knife point, plus verbal threats, forced the victim to get on the front seat and put her dog on the front floor board. Defendant then got in the car beside the victim. The driver, defendant, and a third male on the back seat, took her to a semi-isolated area where she was forced by threats to have natural sexual relations with all three. She was also forced to have oral sex with one of the three. All of this occurred on the late afternoon or night of January 6, 1979 in Marshall County.

After the sexual relations came to an end, she was allowed to put on her clothes, all of which they had forced her to remove. She was then transported a certain distance where she was allowed to leave the automobile. The three males drove away. The victim then made her way to the police station and reported the incident. Officers of the law made an investigation and arrests were subsequently made.

Appellant here complains that his constitutional rights to confrontation (cross-examination) were violated by the court’s sus-tention of the state’s objection to a question his counsel propounded to the victim. We quote the question:

“Q One more thing, Miss Shields: Prior to this incident of January 6, 1979, had you ever brought charges of rape against anyone else?
“MR. STARNES (District Attorney): Judge, I’m going to object.
“THE COURT: Sustain the objection.
“MR. WALKER: We except to that, Your Honor.
“THE COURT: The same Act number.
“MR. WALKER: Your Honor, I was not asking about . . . could I approach the bench?
“THE COURT: Yes. Sustain the objection.”

The Act to which the court referred is Act No. 251, Acts of Alabama, 1977, p. 328, § 12-21-203, Code of Alabama 1975. This Act provides that:

“(c) In any prosecution for criminal sexual conduct, evidence relating to the past sexual behavior of the complaining witness shall be introduced if the court, following the procedure described in subsection (d) of this section, finds that such past sexual behavior directly involved the participation of the accused.”

But the constitutionality of the Act was not raised in the lower court. Constitutional rights have to be raised seasonably in the lower court. Fuller v. State, 269 Ala. 312, 113 So.2d 153(11). Because of the absence of a ruling at nisi prius on this issue, we pretermit a ruling here on the constitutional issue.

However, we note that the question is broad in scope. It is not limited to charges arising out of the victim’s own personal sexual experience under duress or force, but includes charges arising out of the sexual experience of others under duress or force. We hold that the question calls for evidence that was immaterial and irrelevant to the issues raised under defendant’s plea of not guilty.

Assuming though the question had been narrowed to charges arising out of the prosecutrix’s own personal experience with a third person, we think that it would have been objectionable. Particular acts of un-chastity on the part of the prosecutrix with a third person are not admissible under our case law. McQuirk v. State, 84 Ala. 435, 4 So. 775(1); See also 16A Alabama Digest, Rape ®=>40(3).

By the same token particular acts of rape of the prosecutrix by a third person, apart from the res gestae, or charges by the victim therefor, are not admissible in evidence. Such acts are immaterial and irrelevant.

The constitutionality of Act No. 251, Acts of Alabama 1977, codified in § 12-21-203, supra, is not as we have noted, supra, the subject of review. The court’s casual reference to the act is not sufficient to bring it under constitutional scrutiny of this Court. A general objection, as here, may be properly sustained if the testimony is obnoxious to any rule of evidence. Norris v. State, 229 Ala. 226, 156 So. 556(18).

We have examined the entire record before us and conclude that the court’s rulings were free of error to reverse. Defendant did not take the stand nor did he offer any witnesses.

The judgment is affirmed.

The foregoing opinion was prepared by the Honorable Bowen W. Simmons, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Edward P. MOSES, Respondent.
    No. 53305.
    Supreme Court of Florida.
    Jan. 17, 1980.
    Rehearing Denied March 24, 1980.

      Ronald R. Richmond, Chairman, Standing Committee on Unauthorized Practice of Law, New Port Richey, John A. Weiss and H. Glenn Boggs, Asst. Staff Counsels, and Cass D. Vickers, Bar Counsel, Tallahassee, for complainant.
    Albert J. Hadeed, Southern Legal Counsel, Inc., Gainesville, for respondent.
    Jim Smith, Atty. Gen., J. Ken Tucker, Deputy Atty. Gen., William C. Sherrill, Jr., Chief Trial Counsel, and Jerome W. Hoffman, Sp. Asst. Atty. Gen., Tallahassee, for amicus curiae.
    Sidney L. Matthew and Patricia A. Reno-vitch, Gen. Counsel, Tallahassee, for Florida Ed. Ass’n/United, AFT, AFL/CIO, amicus curiae.
   PER CURIAM.

This is an original proceeding from The Florida Bar on a joint petition which requests a determination of whether certain conduct constitutes the practice of law and whether, if it does, it is the unauthorized practice of law in violation of article V, section 15 of the constitution. Put another way, the question here is whether the legislature (or an agency) can approve by law (or by rule) in certain administrative fori of the state conduct which, in the absence of legislative authorization, would constitute the practice of law. We have jurisdiction. Article V, section 15, Florida Constitution; State ex rel. The Florida Bar v. Sperry, 140 So.2d 587 (Fla.1962).

The Florida Bar (Bar) and Edward P. Moses (respondent) have filed a Joint Petition and Stipulation to Facts. Specifically, they ask us to determine whether respondent’s appearance in a representative capacity before a hearing officer of the Division of Administrative Hearings (DOAH) in unfair labor practice (ULP) proceedings constituted the unauthorized practice of law. The parties concur that respondent has nevT er been licensed to practice law in Florida. He is a general management consultant specializing in educational labor relations. Education Services Bureau, Inc., a corporation hired by the Escambia County School Board (Board) employed respondent in his capacity as a labor relations specialist from November 1974 until November 1975. At that time respondent went to work for the Board as a non-paid employee and continued as such until April 1976. During his tenure with Educational Services Bureau, Inc., respondent participated as the Board’s negotiator in collective bargaining between the Board and the Escambia Education Association (Union). In the course of these proceedings, the Union filed ULP charges with the Public Employees Relations Commission (PERC). This led PERC to charge the Board with engaging in ULP by 1) engaging in improper surveillance of picketing school teachers; 2) not bargaining in good faith; and 3) engaging in improper dues scheduling practices.

Respondent represented the Board at the ULP hearing on these charges in December 1975, pursuant to a rule adopted by PERC to authorize lay representation in its proceedings which states:

Any party shall have the right to appear at any hearing in person, by counsel, or by other representative. . . . Fla. Admin.Code Rule 8H-4.13(a).

This rule was adopted under the authority conferred by section 120.62(2), Florida Statutes (1975), of Florida’s Administrative Procedure Act (APA), which provides:

Any person compelled to appear, or who appears voluntarily, before any hearing officer or agency in an investigation or in any agency proceeding has the right, at his own expense, to be accompanied, represented, and advised by counsel or by other qualified representatives.

The Joint Petition and Stipulation indicates his conduct before the DOAH officer included:

1) Presentation of evidence;

2) Examination and cross-examination of . witnesses;

3) Voir Dire;

4) Making both written and. oral motions and arguing same;

5) Objecting to, evidence and arguing thereon;

6) Making decisions affecting important legal rights and obligations of his clients;

7) Filing written pleadings.

On the final day of the hearings and before the Board presented its case, a member of The Florida Bar appeared as co-counsel with respondent and moved for a continuance. When this motion was denied, the attorney announced the Board would not proceed further and the. hearing was concluded. As a result of these proceedings, PERC ruled in favor of the Union and ordered the Board to cease and desist those actions which gave rise to the ULP charges. That decision was affirmed on appeal. School Board of Escambia County v. Public Employees Relations Commission, 350 So.2d 819 (Fla. 1st DCA 1977).

The Bar does not seek to have respondent held in contempt in light of his reliance on PERC’s regulation, instructions from the DOAH hearing officer, and respondent’s cooperation in bringing this petition to ascertain the proper role of labor consultants in unfair labor practice proceedings. Amici curiae, the attorney general, and the Florida Education Association have also filed briefs in this case.

Whether Representation Before PERC Constitutes the Practice of Law

The difficulty inherent in defining the practice of law was noted recently, in The Florida Bar v. Brumbaugh, 355 So.2d 1186, 1191 (Fla.1978), where we reiterated the broad guidelines by which each person’s conduct must be gauged:

. if the giving of such advice and performance of such services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the persons giving such advice possess legal skill and a knowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitute the practice of law. Sperry, supra, 140 So.2d at 591.

The Bar contends that ULP charges affect important legal rights surrounding the management-union relationship. We agree. These are serious allegations which mandate a hearing upon the finding of a prima facie violation. Section 447.503(3)(a), Florida Statutes (1975). As a result of evidence produced at the hearing PERC may enter a cease and desist order or require positive action, including reinstatement of employees with or without back pay. Section 447.-503(4)(a), Florida Statutes (1975). These orders are subject to appellate review in the district courts of appeal. Section 447.-503(5), Florida Statutes (1975). They are enforceable by petition to the district courts which may also provide injunctive relief based on the agency action. Section 447.-503(6)(a), Florida Statutes (1975). In the instant proceeding PERC in fact ordered the Board take affirmative steps and the order was affirmed by the First District Court of Appeal. School Board of Escam bia County v. PERC, supra. Respondent’s actions as the Board’s representative affected the progress and outcome of the hearing and thus affected the Board’s legal rights under Chapter 447.

Next, the Bar contends that because of the applicable procedures, representatives at ULP hearings must possess legal skill and knowledge beyond that of the average citizen in order to protect a party’s legal rights. This hearing was governed by the APA, chapter 120, Florida Statutes (1975). Under the provisions of the APA, where substantial interests of a party may be determined by an agency and there are disputed issues of material fact, a so-called “formal proceeding” is required. Section 120.57(1), Florida Statutes (1975). The Bar has detailed at great length the procedural similarities between formal administrative hearings and a civil action in the judicial system. While it is true that these proceedings are comparable to court proceedings in many ways, State ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977), and have been describ.ed as “trial-type hearing[s],” McDonald v. Department of Banking and Finance, 346 So.2d 569, 578 (Fla. 1st DCA 1977), the law is well settled that they are not actions at law in the judiciary. Canney v. Board of Public Instruction of Alachua County, 278 So.2d 260 (Fla.1973) (on rehearing). Furthermore, our focus must be on the character of the services rendered and acts performed rather than the nature of the agency or forum. The Florida Bar v. Sperry, supra.

A cursory examination of respondent’s activities reveals what appear to be the classic functions of an attorney. To some extent these actions were governed by procedures outlined in Florida’s APA which ostensibly require some legal knowledge to understand and apply. See, e.g., sections, 120.57(l)(b) 2a, c, Florida Statutes (1975). Nonetheless, the draftsmen of the 1974 revision of chapter 120 clearly intended to increase flexibility and informality in the administrative process by expanding public access to agency rationale and action, consistent always, however, with minimal administrative due process rights for those whose rights are affected by agency action. Reporter’s Comments on the Proposed Administrative Procedure Act for the State of Florida, March 9, 1974, at pp. 3, 5.

Under the APA, a party or its representative must have some knowledge of jurisdiction and supporting legal authority to file the initial notice. Section 120.57(l)(b)2b, Florida Statutes (1975). Similarly, one must be prepared to apply and interpret the Florida Rules of Civil Procedure as they relate to discovery. Section 120.58(l)(b), Florida Statutes (1975). The judicial rules of evidence may not be in full force, but the concept of hearsay must be understood as its use is limited to corroboration “unless it would be admissible over objection in civil actions.” Section 120.58(l)(a), Florida Statutes (1975). In obvious recognition of the legal nature of the processes and their ramifications, the APA itself extends authority for party representation by non-lawyers only to “qualified” lay representatives. Section 120.62(2), Florida Statutes (1975).

Certainly it is arguable that a person need not have three years of legal education to master subjects such as jurisdiction, hearsay, and discovery for the limited purpose of representation at a formal hearing on ULP charges. A modicum of competent instruction might well lead to competent representation. This is not the situation under the facts at bar, however. Respondent was not required by any rule or regulation to demonstrate that his knowledge of these, or other legal concepts, was any greater than that of the average citizen or unique for ULP matters.

Respondent does not seriously contest the fact that he represented the Board’s interests in an adversary administrative proceeding. He urges us to consider other factors such as his expertise in the labor relations field and concomitant legal knowledge; the fact that all legal decisions were made by the Board’s house counsel or specially hired labor law firm; and the economic impediments to requiring attorneys at these proceedings. Similarly, amici argue that trained labor relations specialists who are more familiar with the collective bargaining process and the “law of the shop” make better advocates in ULP proceedings than do attorneys. Amici contend that denying specialized lay representation affects constitutional rights and is economically unfeasible.

It is true that mere application of the Sperry definition will not suffice. The practice of law touches upon virtually every economic and social facet of our lives today. This is especially true in the administrative arena where more and more of our rights are being determined initially.

Other jurisdictions have considered' the question of what constitutes the practice of law before administrative bodies. In Re: Unauthorized Practice of Law, 175 Ohio St. 149, 192 N.E.2d 54, 2 A.L.R.3d 712 (1963); Denver Bar Association v. Public Utilities Commission, 154 Colo. 273, 391 P.2d 467, 13 A.L.R.3d 799 (1964). These decisions reflect the line drawing which courts must engage in when governed by broad definitional guidelines such as ours in Sperry. One commentator’s denomination of the question as “controversial” more than forty years, ago is equally accurate today. Robinson, Appearances by Laymen in a Representative Capacity before Administrative Bodies, 5 Law and Contemp. Prob. 89, 89 (1938). These thorny questions need npt trouble us, however, in light of Florida’s constitutional and statutory approach to administrative agencies. At this juncture in our analysis it is sufficient to observe that the representation of a party in a contested ULP proceeding does constitute conduct which is the practice of law.

We pause in analysis, however, to note two asserted constitutional bases for lay representation in ULP proceedings which must be rejected. Respondent maintains that article I, section 6 of the Florida Constitution mandates a right to lay representation. This reading goes too far. An employee’s right to bargain collectively by and through a union or other labor organization is not abridged by requiring competent, responsible representation at formal hearings on ULP charges. We are not dealing with a party’s right to self-representation. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Respondent admits he appeared in a representative capacity for the Board. Cf. Nicholson Supply Co. v. First Federal Savings & Loan Association, 184 So.2d 438 (Fla.2d DCA 1966) (right of self-representation does not allow non-attorney corporate officers to represent their corporation).' Nor does the first amendment support a right to lay representation. “[C]ollective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment. . . . [T]hat right would be a hollow promise if courts could deny association of workers or others the means of enabling their members to meet the costs of legal representation.” United Transportation Union v. State Bar of Michigan, 401 U.S. 576, 585-86, 91 S.Ct. 1076, 1082, 28 L.Ed.2d 339 (1971) (emphasis supplied). Similarly, “the freedom of speech, assembly, and petition guaranteed by the First and Fourteenth Amendments gives [the Union] the right to hire attorneys on a salary basis to assist its members in the assertion of their legal rights.” UMW of America v. Illinois State Bar Association, 389 U.S. 217, 221-22, 88 S.Ct. 353, 355, 356, 19 L.Ed.2d 426 (1967) (emphasis supplied). Reliance on these decisions is misplaced. The Court speaks only to the employees’ ability to retain legal counsel to protect constitutionally guarded rights; at no point does the Court acknowledge a right to unfettered lay representation.

Who Governs the Practice of Law Before Agencies

Having concluded that respondent's conduct constitutes the practice of law, the next question is whether this Court, the legislature, or an agency can control it— that is, whether respondent’s conduct was authorized representation before an agency or the unauthorized practice of law subject to this Court’s control.

The single most .important concern in the Court’s defining and regulating the practice of law is the protection of the public from incompetent, unethical, or irresponsible representation. The Florida Bar v. Brumbaugh, supra; The Florida Bar v. Sperry, supra. It is in furtherance of this purpose that this Court maintains strict standards of competence and ethical responsibility to be reached prior to admission to practice law in Florida. Once admitted, a person m.ust continue to adhere to these standards or suffer the disciplinary powers residing in this Court by constitutional mandate. Article V, section 15, Florida Constitution. Inherent in our supervisory power is the authority to prohibit the unauthorized practice of law. Fla. Bar Integr. Rule, art. XVI. Implicit in the power to define the practice of law, regulate those who may so practice and prohibit the unauthorized practice of law is the ability to authorize the practice of law by lay representatives. The unauthorized practice of law and the practice of law by non-lawyers are not synonymous. Brickman, Expansion of the Lawyering Process through a New Delivery System: The Emergence and State of Legal Paraprofessionalism, 71 Colum.L.Rev. 1153, 1209-10 (1971); Section 454.23, Florida Statutes (1977) (“Any person not licensed or otherwise authorized by the Supreme Court of Florida . . . .” who practices law is guilty of a first degree misdemeanor).(emphasis supplied); Fla. Bar Integr. Rule, art. XVIII (qualified law students authorized to represent clients in legal intern programs).

Respondent and amici would have this Court authorize lay representation by specialists such as respondent on the assumption they possess the requisite knowledge and skill by virtue of their expertise in labor relations and knowledge of the case. In Auerbacher v. Wood, 139 N.J.Eq. 599, 53 A.2d 800 (Ch.1947), aff’d 142 N.J.Eq. 484, 59 A.2d 863 (N.J.1948), the lower court refused to formulate a per se rule that lay representation in the adjustment of grievances and collective bargaining process constituted the practice of law. In affirming, the appellate court cautioned that one would not be allowed to practice law under “the guise of specialized service in the sphere of labor relations.” 142 N.J.Eq. at 486, 59 A.2d at 864. Even the lower court limited the permissible activity to situations where the legal question was subordinate to a major non-legal problem. 139 N.J.Eq. at 602, 53 A.2d at 802. Auerbacher also dealt with practice before the National Labor Relations Board and federal statutes which preempt state regulation of such practice. In Re: Petition of Kearney, 63 So.2d 630 (Fla.1953). That facet of Auerbacher and other like cases — preemption—has a corollary in our constitution which is the critical feature of this issue. This Court has no control over the agencies of this state, and any attempt to exercise it would violate article II, section 3 of the constitution which states:

No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.

In the absence of legislative authorization for lay representation, there would be no question that conduct which constitutes the practice of law, wherever performed, is subject to our constitutional responsibility to protect the public from the unauthorized practice of law. We have so held in finding that, absent legislative governing authority, the preparation and filing of a corporate charter constitutes the unauthorized practice of law. The Florida Bar v. Town, 174 So.2d 395 (Fla.1965), followed in The Florida Bar v. Keehley, 190 So.2d 173 (Fla.1966); The Florida Bar v. Fuentes, 190 So.2d 748 (Fla.1966); and The Florida Bar v. Scussel, 240 So.2d 153 (Fla.1970). See also The Florida Bar v. Turner, 355 So.2d 766 (Fla.1978). But the legislature has constitutional authorization to oust the Court’s responsibility to protect the public in administrative proceedings under article V, section 1 of the Florida Constitution, and when it does so any “practice of law” conduct becomes, in effect, authorized representation. That, we find, is the situation here.

PERC is unquestionably subject to the APA, and the APA has unquestionably authorized representation before PERC by non-lawyers. Sections 120.52(l)(b), 120.-62(2), Florida Statutes (1975). PERC has acknowledged the authorization and has purported to allow lay representation in contested ULP proceedings. Fla.Admin. Code Rule 8H-4.13(a). Other agencies have done the same, either directly such as the Public Service Commission, or by acquiescence to the model rule adopted by the governor and cabinet sitting as the Administration Commission. Fla.Admin.Code Rules 25-2.10-.19; 28 — 5.03. In a similar vein, federal agencies promulgate rules and regulations governing the competence and conduct of persons practicing before them. See F. T. Vom Baur, Standards of Admission to Practice before Federal Administrative Agencies, in Survey of the Legal Profession (1953); Address by Professor Gellhorn, Qualifications for Practice before Boards and Commissions, Cincinnati Conference (Mar. 1, 1941), printed in Law and Lawyers in the Modern World, 15 Cin.L. Rev. 123, 196-99 (1941); 5 U.S.C. § 555(b) (1977).

Having identified legislative authority to characterize respondent’s conduct as authorized representation before PERC and PERC’s attempt to accommodate that authorized representation, however, does not end our inquiry. There is always the residual question in rule related proceedings as to whether the agency in promulgating a controlling rule has validly exercised delegated authority. Indeed, the APA itself provides the authority to challenge a rule or proposed rule as violative of this requirement. Sections 120.56(1), 120.54(3)(a), Florida Statutes (1975).

Section 120.62(2), it must be remembered, authorizes agencies to permit “qualified” lay representatives to appear in agency proceedings. PERC’s rule, on which respondent has relied, made no attempt to set standards for non-lawyer representation, despite this limitation in the delegating statute. Amici meet this issue by suggesting that sufficient standards exist in chapter 120. We do not agree.

There are no specific standards of competence and professional responsibility either in the APA or prescribed by agency rule authorizing representation such as respondent’s. Absent such standards, PERC has invalidly exercised delegated authority and we must hold that respondent’s conduct constituted the unauthorized practice of law.

We are not here passing on the constitutional adequacy of the qualification standard required by the legislature for participation in agency proceedings. No one has suggested an infirmity in that regard.

To summarize, we began this inquiry with the responsibility of this Court under article V, section 15 of the constitution in the absence of any legislative attempt to govern representation before agencies, and we found that respondent’s conduct before PERC in fact constituted the practice of law. We then considered whether the legislature could oust the Court’s responsibility in proceedings before agencies, and we found that it could convert such conduct into authorized representation. We next considered whether the legislature had so acted with respect to this agency, and we found that it had through delegation in the APA. Finally, we considered whether PERC’s exercise of legislatively-delegated authority was valid, and we found ihat it was not for lack of standards consistent with the legislative delegation.

From this we conclude that respondent's conduct was not authorized representation, and therefore must be classified as the unauthorized practice of law. In light of the joint petition, however, we refrain from holding respondent in contempt, but enjoin him from further conduct such as that described in the Joint Petition and Stipulation so long as there is no valid exercise of delegated authority by PERC.

It is so ordered.

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


author: ALDERMAN, Justice.

text:
    Mary Ann ROSE, Petitioner, v. Joseph P. D’ALESSANDRO, etc., Respondent.
    No. 55694.
    Supreme Court of Florida.
    Jan. 17, 1980.
    Rehearing Denied March 24, 1980.
    James R. Long, Fort Myers, for petitioner.
    Joseph P. D’Alessandro, State’s Atty., Louis S. St. Laurent, Chief Asst. State’s Atty., and Radford R. Sturgis, Asst. State’s Atty., Fort Myers, for respondent.
   ALDERMAN, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the. District Court of Appeal, Second District, in Rose v. D’Alessandro, 364 So.2d 763 (Fla.2d DCA 1978), which conflicts with our recent decision in Wait v. Florida Power & Light Co., 372 So.2d 420 (Fla.1979). The Second District, for public policy reasons, held that complaints or affidavits received by a state attorney in the discharge of his investigatory duties are exempt from disclosure under the Public Records Act. In Wait, however, we held that chapter 119,' Florida Statutes (1975), exempts from public disclosure only those public records that are provided by statutory law to be confidential or which are expressly exempted by general or special law.

The district court in the present case expressed great concern over the critical importance to the public of keeping statements, allegations, charges, complaints, or other products of a state attorney’s investigation confidential. We recognize the validity of this concern, but, as we said in Wait, courts may not pass upon the wisdom of legislative determinations.

Since our decision in Wait, the legislature has recognized the necessity for exemptions from the Public Records Act for investigative police reports and has adopted chapter 79-187, Laws of Florida (1979), which amended section 119.07 to add the following pertinent exemptions:

(2) . . .
(c) Active criminal intelligence information and active criminal investigative information are exempt from the provisions of subsection (1).
(d) Any information revealing the identity of confidential informants or sources is exempt from the provisions of subsection (1).
(e) Any information revealing surveillance techniques or procedures or personnel is exempt from the- provisions of subsection (1).
(f) Any information revealing undercover personnel of any criminal justice agency is exempt from the provisions of subsection (1).
(g) Any criminal intelligence information or criminal investigative information including the photograph, name, address or other fact or information which reveals the identity of the victim of any sexual battery as defined by Chapter 794 or child abuse as defined by Chapter 827 is exempt from the provisions of subsection (1).
(h) Any criminal intelligence information or criminal investigative information which reveals the personal assets of the victim of a crime, other than property stolen or destroyed during the commission of the crime, is exempt from the provisions of subsection (1).
(i) All criminal intelligence and criminal investigative information received by a criminal justice agency prior to January 25,1979, is exempt from the provisions of subsection (1).
(j) After December 31, 1980, all criminal intelligence and criminal investigative information received by a criminal justice agency prior to January 25,1979, which is not active shall be open to the person to whom the record pertains unless the information is exempted by paragraphs (d), (e), or (f) of this subsection or relates to any other person.
(k)Nothing herein shall be construed to exempt from subsection (1) records made part of a court file and not specifically closed by order of court except as provided in paragraphs (d), (e), and (f) of subsection (2).
(7) The provisions of this section are not intended to expand or limit the provisions of Rule 3.220, Florida Rules of Criminal Procedure, regarding the right and extent of discovery by the state and a defendant in a criminal prosecution.
(n) The home address, telephone number and photograph of law enforcement personnel; the home address, telephone number, photograph and place of employment of the spouse and children of law enforcement personnel; and the names and locations of schools attended by the children of law enforcement personnel are exempt from the provisions of subsection (1).
(3) “Criminal intelligence information” and “criminal investigative information” shall not include the time, date, location, and nature of a reported crime, the name, sex, age, and address of a person arrested or the victim of a crime except as provided in subsection (2)(g), the time, date, and location of the incident and the arrest, the crime charged, all documents given or required by law or agency rule to 'be given to the person arrested, and information and indictments except as provided in s. 905.26.
(4) Any person who has custody of public records and who asserts that an exemption provided in subsection (2) or in general or special law applies to a particular record shall delete or excise from the record only that portion of the record for which an exemption is asserted and shall produce for inspection and examination the remainder of such record. In any action in which an exemption is asserted pursuant to paragraphs (d), (e), and (f) of subsection (2), the record or records shall be submitted in camera to the court for a de novo inspection. In the case of an exemption asserted pursuant to paragraph (c) of subsection (2) an in camera inspection shall be discretionary with the court. If the court finds no basis for the assertion of the exemption it shall order the records to be disclosed. (Emphasis added).
The information that petitioner seeks is subject to the terms and conditions of this statute. Accordingly, the district court’s opinion, which conflicts with our decision in Wait, is disapproved, but its action affirming the trial court’s judgment is approved.

It is so ordered.

ENGLAND, C. J., and BOYD and SUND-BERG, JJ., concur.

ADKINS and OVERTON, JJ., concur in result only.


author: PER CURIAM. ENGLAND, Chief Justice.

text:
    James ADAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 58519.
    Supreme Court of Florida.
    Jan. 23, 1980.
    Richard L. Jorandby, Public Defender, Craig S. Barnard, Chief Asst. Public Defender and Jerry L. Schwarz, Asst. Public Defender, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen. and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

This cause is before this Court at the instance of the public defender of the Fifteenth Judicial Circuit on behalf of James Adams to review an order of the trial judge of the Nineteenth Judicial Circuit as it relates to the appointment of counsel for James Adams in a post conviction motion for relief.

The petitioner has been convicted of first degree murder and has been sentenced to death. For that reason we have jurisdiction. His execution is scheduled for the week beginning noon February 8, 1980. Adams was convicted in the Nineteenth Judicial Circuit. He was represented at the trial by the office of the public defender of the Nineteenth. Judicial Circuit. His appeals, however, have been handled by the office of the public defender of the Fifteenth Judicial Circuit.

On November 1,1979, the public defender of the Fifteenth Judicial Circuit filed on behalf of James Adams a motion to vacate judgment and death sentence pursuant to Rule 3.850, Fla.R.Crim.P. Having once been continued, this cause came on for hearing before the trial judge on January 18, 1980. The trial judge, having reviewed the motion, acknowledged that the motion is complex and that petitioner Adams was entitled to counsel. As stated in Graham v. State, 372 So.2d 1363 (Fla.1979), an indigent need not have counsel in a proceeding such as this unless the application for post conviction relief on its face reflects a colorable legal claim. The trial judge felt that this motion met that test; the state takes no issue with this.

The trial judge, having some concern over the authority and right of the public defender of the Fifteenth Judicial Circuit to act in the Nineteenth Judicial Circuit in a post trial motion, appointed the public defender of the Nineteenth Judicial Circuit to represent Adams; he disallowed further representation by the public defender of the Fifteenth Judicial Circuit. Unfortunately for this appointment, the motion of the petitioner is predicated to a large and substantial extent on allegations that Adams was deprived of effective assistance of counsel at trial. Eleven specific charges are made in the motion. Because of these allegations, the public defender of the Nineteenth Judicial Circuit has a hopeless conflict of interest which precludes his representation of James Adams in this proceeding. Disciplinary Rules 5-101(A), (B), 7— 101, Florida Code of Professional Responsibility. In contrast, no similar conflict of interest is demonstrated by the sole, conclu-sory and precatory allegation in the motion concerning the effectiveness of appellate representation of Adams by the public defender of the Fifteenth Judicial Circuit.

The public defender of the Nineteenth Judicial Circuit would be faced with the dilemma of vigorously asserting the petitioner’s claim or defending the professional reputation of his office. This would be at least as great a conflict as having the same office represent two defendants with conflicting interests which was proscribed in Turner v. State, 340 So.2d 132 (Fla.2d DCA 1976). Also, it is likely that a member of his office will be called as a witness which would create an additional impediment. Roberts v. State, 345 So.2d 837 (Fla.3d DCA 1977).

Under these circumstances it was error for the trial judge to appoint the public defender of the Nineteenth Judicial Circuit to represent James Adams for this particular proceeding. That appointment is therefore vacated, with instructions to the trial judge to appoint other counsel for petitioner.

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

ENGLAND, Chief Justice.

WHEREAS, the Supreme Court of Florida has determined that the public defender of the Nineteenth Judicial Circuit of Florida is disqualified from legal representation in post-conviction proceedings for the indigent defendant in the case of

State of Florida v. James Adams
Case No. 73-284 CF
Circuit Court of the 19th Judicial Circuit in and for St. Lucie County, Criminal Division

on the basis of a conflict of interest; and

WHEREAS, it has been represented to me that the office of the public defender for the Fifteenth Judicial Circuit has with James Adams’ consent represented him in all appellate proceedings subsequent to his conviction and sentence at trial, has prepared and filed on his behalf the motion for post-conviction relief which is pending in the above cause and on which a hearing has been scheduled, for January 25, 1980, and is and has been prepared and willing to present testimony and argument regarding the allegations contained in the motion; and

WHEREAS, the trial judge and Attorney General have in this cause acknowledged that it is necessary for the indigent defendant to be represented by counsel at an evidentiary hearing now set upon the motion for post-eonviction relief.

NOW, THEREFORE, I, ARTHUR J. ENGLAND, JR., under authority vested in me as Chief Justice of the Supreme Court of Florida under article V, section 2 of the Constitution of Florida, do hereby authorize the office of the public defender of the Fifteenth Judicial Circuit of Florida to be appointed by the trial judge in the above cause to serve as temporary public defender of said circuit in order to represent the indigent defendant as counsel in the above cause. If so appointed by the trial judge in the above cause, the office of public defender of the Fifteenth Judicial Circuit, under and by virtue of the authority hereof, shall be vested with all and singular powers and prerogatives conferred by the Constitution and laws of the State of Florida upon a public defender of the Nineteenth Judicial Circuit, and shall thereafter be authorized to dispose of all matters' arising in said cause.

DONE AND ORDERED at Tallahassee, Florida, on January 23, 1980.

      . Art. V, § 3(b)(1). (3), Fla.Const.


text:
    James ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 58576.
    Supreme Court of Florida.
    Feb. 8, 1980.

      Richard L. Jorandby, Public Defender, and Craig S. Barnard, Chief Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   PER CURIAM.

This is an appeal from a denial of James Adams’ motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. The appellant seeks a stay of execution pending a review of that proceeding by this Court.

This Court has afforded the appellant an opportunity to fully present the issues to this Court, including oral argument. For the reasons expressed, we affirm the trial court’s denial of relief and deny the stay of execution.

This Court initially affirmed the appellant’s conviction and sentence of death in Adams v. State, 341 So.2d 765 (Fla.1976), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 158 (1977). Subsequent to this af-firmance, this Court issued a Gardner order to the trial court, requiring the disclosure of any information used by the trial judge in sentencing which was not disclosed to appellant during the sentencing phase. The trial judge responded that no undisclosed information had been utilized in the sentencing. Appellant then petitioned for review in this Court, stating that the judge had relied upon erroneous information in sentencing, most particularly the statement by appellant himself that he had been convicted of crimes on five prior occasions. Appellant alleged that even though there had been no disclosure violation, the trial judge’s reliance upon the inaccurate information violated due process standards as stated in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), and thus entitled appellant to a new sentencing hearing. This application for relief was denied. Adams v. State, 355 So.2d 1205 (Fla.1978), cert. denied, 439 U.S. 947, 99 S.Ct. 340, 58 L.Ed.2d 338 (1978).

In the instant petition, appellant first contends that (a) there was inflammatory testimony presented by the state, and argument propounded by the prosecutor, which were prejudicial, (b) the sentencing judge relied upon the fact that the appellant had been convicted five times, and (c) the sentencing judge in an unrecorded conversation prohibited nonstatutory mitigating circumstances from being presented to the jury. We find these contentions to be without merit.

The asserted issues concerning prejudicial argument and testimony could have been raised in the first appeal to this Court, and these matters thus will not support a collateral attack. Spenkelink v. State, 350 So.2d 85 (Fla.1977), cert. denied, 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977); Sullivan v. State, 372 So.2d 938 (Fla.1979). The issue concerning the reliance by the trial judge upon the five previous convictions testified to by the appellant was disposed of in Adams v. State, 355 So.2d 1205 (Fla.1978), cert. denied, 439 U.S. 947, 99 S.Ct. 340, 58 L.Ed.2d 338 (1978).

Finally, we reject the claim that the sentencing process must be voided because of a tenuous recollection of assistant defense counsel of an unrecorded conversation with the trial judge, particularly when there was no proffer of specific nonstatuto-ry mitigating circumstances at the original trial. We note that assistant defense counsel initially was not even certain that the conversation took place during this appellant’s trial.

In his second point, appellant maintains that he was denied effective assistance of counsel in the sentencing phase of his trial because his counsel failed to properly investigate his prior convictions and failed to present testimony concerning his family life and church involvement. The record contains testimony of appellant’s wife, his girl friend, and the appellant himself during the guilt and innocence phase which could have been used to seriously impeach any such contentions concerning appellant’s character. The appellant testified of his playing cards and drinking for four days, including the Sunday prior to the murder. As previously stated, the appellant personally testified that he had a record of five convictions.

State and federal courts are engaged in an evolving process of determining what measure of competence shall be demanded of attorneys in criminal cases. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). The Fifth Circuit Court of Appeals requires that counsel provide “reasonably effective assistance.” United States v. Fessell, 531 F.2d 1275, 1278 (5th Cir. 1976). The Eighth Circuit requires “customary skills and diligence that a reasonably competent attorney would perform under similar circumstances.” United States v. Easter, 539 F.2d 663, 666 (8th Cir. 1976). The Third Circuit demands “the exercise of the customary skill and knowledge which normally prevails at the time and place.” Moore v. United States, 432 F.2d 730, 736 (3rd Cir. 1970). The various measures to determine ineffective assistance of counsel are discussed extensively in Tague, The Attempt to Improve Criminal Defense Representation, 15 Am.Crim.L.Rev. 109, and in Davis v. Alabama, 596 F.2d 1214 (5th Cir. 1979). We find that by even the most demanding standard, the appellant has not demonstrated on the record made in the trial court that there was ineffective assistance of counsel.

Further, in this proceeding the appellant has offered only conclusory statements by an assistant defense counsel as either potential mitigating evidence or as evidence which would ameliorate the factors proved in aggravation. This attorney admits he was brought into the cause only as co-counsel in a support capacity and he was not even present during the entire guilt-innocence phase of the trial. Appellant has proffered no specific evidence which he claims should have been presented in mitigation. Irrespective of his lack of any specific proffer, it is our view that the mitigating and ameliorating evidence suggested in appellant’s allegations would not have affected the sentence, and was, in fact, already negated to a large extent by the appellant’s own testimony during the guilt-innocence portion of the trial.

In his final point, the appellant argues that he was improperly denied an opportunity for a hearing on the issue of whether the death penalty is arbitrarily and discriminatorily applied in St. Lucie County, as evidenced by the four death sentences imposed in that county during the period 1973-1977. We find the mere fact that there were four death sentences imposed during the four-year period in St. Lucie County, together with the conclusions drawn therefrom, does not constitute a sufficient preliminary factual basis to establish that the death penalty was imposed in an arbitrary, capricious, and irrational manner.

The order of the trial judge is affirmed, and the motion for stay of execution of sentence is denied.

It is so ordered.

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


author: ADKINS, Acting Chief Justice.

text:
    JACKSONVILLE SUBURBAN UTILITIES CORPORATION, etc., Petitioner, v. Paula F. HAWKINS, etc., et al., Respondents. SOUTHERN UTILITIES COMPANY, etc., Petitioner, v. Paula F. HAWKINS, etc., et al., Respondents.
    Nos. 55337, 55338.
    Supreme Court of Florida.
    Feb. 7, 1980.

      James L. Ade and William A. Van Nort-wick, Jr., of Martin, Ade, Birchfield & Johnson, Jacksonville, for petitioners.
    Prentice P. Pruitt, Legal Director, and Raymond E. Vesterby, Staff Counsel of the Florida Public Service Commission, Tallahassee, for respondents. '
   ADKINS, Acting Chief Justice.

This cause is before the Court on petition for writ of certiorari to the Public Service Commission. Art. V, § 3(b)(3), Fla.Const.

The Commission authorized rate increases for petitioners (hereinafter referred to as Utilities) by its Order 8039 in November, 1977. The Utilities challenge certain computations used by the Commission in ascertaining an appropriate rate base. The Commission responds that competent substantial evidence exists in the record to support its calculations. We agree.

These Utilities provide water and sewer service to Duval County. In July 1974 they sought rate relief from the Commission. One-half of the requested increase was withheld because of the poor condition of the facilities and substandard service. (Order 6575). By December 1975, when the second half of the increase took effect, the Utilities had made a financial commitment to taking corrective measures as required by the previous order. Substantial expenditures were involved in updating the plants and operations, without a corresponding rise in customer revenues. (Order 7037). In January 1977 the Utilities again filed for rate relief. A hearing examiner conducted public hearings and found that some of the expenses incurred were extraordinary maintenance expenses. He recommended that these be amortized over a three-year period instead of allowed as expenses in the test year.

The Commission decided that the rehabilitation program undertaken in the test year involved some non-recurring expenses which should not be computed into the rate base. To alleviate the skewed effect of the test-year corrective expenditures, the Commission averaged all operation and maintenance expenses for the previous four years. On petition for reconsideration the Commission noted that it would be “beyond credibility” to believe the test-year operation and maintenance expenses were normal in light of the restoration programs required by previous orders.

This Court's responsibility is not. to reweigh or re-evaluate conflicting evidence, but only to ascertain whether the Commission's order is supported by competent substantial evidence. United Telephone Co. v. Mayo, 345 So.2d 648 (Fla.1977). The record reflects conflicting evidence on the issue of normal versus extraordinary expenses. Florida Bridge Co. v. Bevis, 363 So.2d 799 (Fla.1978). We cannot say that the Commission departed from the essential requirements of the law in using an averaging method in this case to reach operation and maintenance figures for use in calculating its rate adjustments. City of Plant City v. Hawkins, 375 So.2d 1072 (Fla.1979).

The petition for writ of certiorari is denied.

BOYD, OVERTON, SUNDBERG and ALDERMAN, JJ., concur.


author: ENGLAND, Chief Justice,

text:
    PUBLIC EMPLOYEES RELATIONS COMMISSION, Petitioner, v. SCHOOL BOARD OF PALM BEACH COUNTY, Respondent.
    No. 55452.
    Supreme Court of Florida.
    Feb. 7, 1980.
    Phillip P. Quaschnick, Staff Counsel, Tallahassee, for petitioner.
    Richard L. Oftedal of Jackson, Oftedal & Goodman, West Palm Beach, for respondent.
    Joseph A. Vassallo of Vassallo & Varner, Palm Springs, for Ass’n of Educational Secretaries and Office Personnel, amicus curiae.
   The Court having accepted jurisdiction and heard argument, and upon further consideration of the matter, we have determined that the Court is without jurisdiction. Therefore, certiorari is denied.

No Motion for Rehearing will be entertained by the Court. See Fla.R.App.P. 9.330(d).

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

ENGLAND, C; J., dissents with an opinion, with which SUNDBERG and MCDONALD, JJ., concur.

ENGLAND, Chief Justice,

dissenting.

I respectfully dissent from the majority’s determination that we lack jurisdiction under article V, section 3(b)(3) of the Florida Constitution to consider this case on its merits. I could understand if my colleagues chose to exercise their constitutional authority by reaching the merits and affirming the divided opinion below, but I cannot understand why we lack the jurisdiction to consider this case on its merits.

The predicate for our jurisdiction is a “direct conflict with a decision of any district court of appeal . . . ,” A more direct conflict would be hard to imagine.

The majority opinion below states, with reference to the definition of “confidential employees” in section 447.203(5), Florida Statutes (1977):

There is no need for PERC to reconstruct the statutory definition and thereby undertake the case-by-case evaluation of the confidential status of personal secretaries to each and every school principal in the state. The Legislature intended, and no doubt believed, that its enactment of the statute in question eliminated the necessity for factual determinations as to the confidential status of such employees.

Section 447.203(5) also was considered and addressed in City of Winter Park v. Florida Public Employees Relations Commission, 349 So.2d 224 (Fla. 4th DCA 1977), where the court said:

Section 447.203 provides definitions for “managerial” and “confidential” employees who are to be excluded from collective bargaining. It is obvious by these definitions that a factual determination must be made in each individual case as to whether certain employees fall within these categories or not. Once this determination is made by the Commission our authority is limited to a determination of whether there has been a departure from the essential requirements of law and whether there is competent substantial evidence to support the determination.

In light of these conflicting interpretations, it is unclear whether the Public Employees Relations Commission must make individual factual determinations, on a case-by-case basis, in processing petitions which seek to designate certain employees as “confidential” under section 447.203(5). This Court should exercise its conflict jurisdiction to resolve this question.

SUNDBERG and McDONALD, JJ., concur.

        .School Bd. of Palm Beach County v. Florida Pub. Employees Relations Comm’n, 374 So.2d 527 (Fla. 1st DCA 1978).

      . Art. V, § 3(b)(3), Fla.Const.

      . 374 So.2d at 529.

      . City of Winter Park v. Florida Pub. Employees Relations Comm'n, 349 So.2d 224, 225 (Fla. 4th DCA 1977).


text:
    THE FLORIDA BAR, Petitioner, v. Lawrence T. WALZAK, Jr., Respondent.
    No. 57074.
    Supreme Court of Florida.
    Feb. 7, 1980.
    H. Glenn Boggs, Asst. Staff Counsel-UPL, Tallahassee, and Ronald R. Richmond, Chairman, Standing Committee on UPL, New Port Richey, for petitioner.
    Zollie S. Cowart, III, Asst. Public Defender, Bradenton, for respondent.
   PER CURIAM.

This matter is before the Court on Petition Against Unauthorized Practice of Law pursuant to Article XVI of the Integration Rule of The Florida Bar.

On June 13, 1979, The Florida Bar filed its Petition alleging:

Respondent, at all times material herein, was not and is not a member of The Florida Bar and was not and is not therefore licensed to engage in the practice of law in the State of Florida.
Respondent has engaged in the unauthorized practice of law in Florida by one or more of the following acts:
1. In March, 1979, the respondent held himself out as an attorney to Arthur Henry Landman. Mr. Landman was the defendant in a case filed in Manatee County Court (case no. 79-166) by Nationwide Insurance Company. Mr. Land-man told the court he was represented by the respondent and that he anticipated paying the respondent a fee for his services. On March 20, 1979, someone who identified himself as the respondent telephoned Lewis F. Collins, Jr., attorney for Nationwide and negotiated with him on behalf of Mr. Landman.
2. Bob Bortel of Anamaria, Florida, is acquainted with the respondent. The respondent held himself out as a lawyer to Mr. Bortel. And he advised the respondent to contact Mr. Landman. Mr. Bortel did this because, as Mr. Landman’s employer, he knew that Mr. Landman was having legal problems.
3. During the late winter and spring of 1979, the respondent proported [sic] to render legal services to Norma Jean Copeland. Ms. Copeland stated that she engaged the respondent as her attorney to represent her in a civil suit in which she was the defendant. The respondent advised her that he negotiated with the plaintiff on her behalf. Ms. Copeland paid the respondent a fee for his services.
4. Ms. Copeland also engaged the respondent as her lawyer to represent her in a controversy involving the mortgage on her home held by Coast Federal Savings and Loan.
5. Respondent held himself out as an attorney to Dolores Aanensen of Braden-ton, Florida, who subsequently hired him to represent her in a controversy with Sarasota Memorial Hospital. She paid the respondent $40.00 for both legal and accounting fees.
6. During March, 1979, the respondent held himself out as a lawyer to Eleanor C. Mitchell of Bradenton, Florida. Ms. Mitchell employed the respondent to do some income tax work for her and to prepare a codicil to her will. She gave the respondent a copy of her will and a deed to certain real property in Pennsylvania. She paid him a total of sixty dollars for his services, but as of April 23, 1979, she had not received the codicil from the respondent.

On July 13, 1979, this Court issued Rule to Show Cause and Order Appointing Referee.

Having considered the pleadings and evidence, the referee recommends that respondent be permanently enjoined from engaging in the acts complained of in the petition and from otherwise engaging in the practice of law in the State of Florida and that respondent be found in indirect criminal contempt of the Supreme Court for the unauthorized practice of law and sentenced to five months in state prison, to run concurrently with the sentence against respondent in Case No. 78-368F in the Circuit Court in and for Manatee County.

Having carefully reviewed this matter, we approve the recommendations of the referee.

Accordingly, respondent Lawrence T. Walzak, Jr., is permanently enjoined from engaging in the acts complained of in the Petition Against Unauthorized Practice of Law and from otherwise engaging in the practice of law in the State of Florida and respondent is held in indirect criminal contempt of this Court for the unauthorized practice of law and sentenced to five months in state prison, to run concurrently with the sentence against him in Case No. 78-368F in the Circuit Court in and for Manatee County.

Costs in the amount of $163.50 are hereby taxed against the Respondent.

It is so ordered.

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

ADKINS and McDONALD, JJ., dissent.


text:
    THE FLORIDA BAR, Complainant, v. Seymour L. GAER, Respondent.
    No. 57412.
    Supreme Court of Florida.
    Feb. 7, 1980.

      Richard L. Lapidus, Bar Counsel; and Scott K. Tozian, Asst. Staff Counsel, Miami, and Anita F. Dahlquist, Asst. Staff Counsel, Tallahassee, for complainant.
    Vincent J. Flynn, of Flynn, Rubio & Tar-koff, Miami, for respondent.
   PER CURIAM.

This disciplinary proceeding against Seymour L. Gaer is before us on complaint of The Florida bar, report of the referee, and petition for review filed by complainant.

The referee made the following findings of fact. On or about March 30, 1977, until April 30, 1977, a bail bondsman referred cases to respondent and set the fee to be charged by respondent. During this one-month period, the bail bondsman referred three clients to respondent. Respondent represented these three clients and shared part of his attorney’s fees with the bail bondsman. On January 9,1978, respondent was found guilty on three counts of soliciting legal business in violation of section 877.02, Florida Statutes, and two counts of a bail bondsman advising the employment of a particular attorney to his principal in violation of section 648.44, Florida Statutes. These violations were misdemeanor offenses.

On the basis of these findings of fact, the referee recommended that respondent be found guilty for violating Disciplinary Rules 2-103(B), (C), and (E) of the Code of Professional Responsibility and Rule 11.-02(3)(b) of the Integration Rule of The Florida Bar. The referee further recommended that respondent receive a public reprimand to be published in the Southern Reporter.

In recommending a public reprimand, the referee noted the following considerations:

(1) Respondent had practiced law for seventeen years without any prior disciplinary convictions or disciplinary measures imposed.
(2) Respondent represented the three solicited clients successfully and with proper diligence.
(3) Respondent was candid and cooperative with the Grievance Committee and the referee.
(4) This referee was convinced that respondent would not repeat his misconduct.

After review of the referee’s report, the Board of Governors of The Florida Bar approved the referee’s finding of guilt but recommended a sixty (60) day suspension from the practice of law as a more appropriate disciplinary measure.

For the reasons expressed by the referee, we approve the referee’s recommended discipline and hereby order that respondent receive á public reprimand to be published in the Southern Reporter. Costs in the amount of $289.80 are hereby taxed against the respondent.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Walter Owen WEST, Respondent.
    No. 57776.
    Supreme Court of Florida.
    Feb. 7, 1980.
    Michael C. Whittington, Branch Staff Counsel, Tampa, for complainant.
    Walter Owen West, in pro per.
   PER CURIAM.

This matter is before the Court on Respondent’s Petition for Leave to Resign from The Florida Bar, pursuant to Article XI, Rule 11.08 of the Integration Rule of The Florida Bar.

The Florida Bar filed its response supporting the Petition for Leave to Resign stating:

WALTER OWEN WEST has been placed on 5 years probation after adjudication of guilt has been withheld, as shown in his petition, and as a condition of probation may not apply for reinstatement during said probation.
The Florida Bar’s investigation shows that WALTER OWEN WEST or. his salesman employee William E. Lemke or both were directly involved in sales of mortgages to 11 investors for a total of $129,000.00, all of which may not be entirely lost due to some mortgages having some small value.
The Florida Bar has been advised that an additional criminal charge has been filed in Sarasota County involving the improper transfer from his mortgage broker’s escrow account of funds belonging to Mr. and Mrs. S. Peter Pieragnoli. However, this amount is included in their total losses as investors.
The Florida Bar has, however, been advised further that any other criminal allegations against Mr. West are not likely to result in any changed or additional sentence.
The transactions forming the basis of the criminal charges against WALTER OWEN WEST in no way involve the practice of law.
Mr. West, at the time of these offenses and thereafter, has not been actively engaged in the practice of law.
The Florida Bar submits that any future reinstatement of WALTER OWEN WEST to the practice of law should be conditioned on proof of restitution of losses to those investors directly solicited by Mr. West or his employee salesman William E. Lemke, together with proof of rehabilitation.

The Petition for Leave to Resign from The Florida Bar is granted on the conditions stated in the order withholding adjudication of guilt and placing Walter Owen West on probation and any future reinstatement of respondent to the practice of law shall be conditioned on proof of restitution of losses to those investors directly solicited by respondent or his employee salesman William E. Lemke, together with proof of rehabilitation.

It is so ordered.

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


author: ADKINS, Justice.

text:
    Nolan HURT and Florence Hurt, his wife, Petitioners, v. LEATHERBY INSURANCE COMPANY, and Eugene Roberson, Respondents.
    No. 53462.
    Supreme Court of Florida.
    Feb. 14, 1980.
    Andrew A. Graham and Frank R. Pound, Jr. of Lovering, Pound & Lober, Cocoa, for petitioners.
    Robert A. Wohn, Jr. of Smalbein, Eu-bank, Johnson, Rosier & Bussey, Rockledge, for respondents.
   ADKINS, Justice.

This cause is before us by petition for a writ of certiorari to review a decision which certified to this Court a question of great public interest. Hurt v. Leatherby Insurance Co., 354 So.2d 918 (Fla.4th DCA 1978). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

The district court answered the following question in the affirmative:

Is a general release containing the following phase “ . . . and any other person, corporation, association or partnership, which might be charged with responsibilities for injury to the persons or property” sufficient to release joint tort-feasors not specifically named in the release?

The factual basis for this action is a familiar one. Plaintiff was a passenger in a car which collided with another vehicle. Pursuant to a settlement in his personal injury suit, plaintiff gave a release which specifically named the parties to that suit, i. e., the other car’s driver, owner, and the owner’s insurance company. . The release also contained a clause extending it to “any other person, corporation, association or partnership which might be charged with responsibility.” Plaintiff then filed suit against the driver of the car in which plaintiff had been riding at the time of the accident. The trial court granted summary judgment in favor of the defendant-driver and his insurance company on the basis of the release. The Fourth District Court of Appeal affirmed the trial court, with retired Justice Drew dissenting.

In order to promote settlements, Florida has abolished the common law fule that a release of one tortfeasor discharges all other tortfeasors who might be liable for that tort. Sun First National Bank of Melbourne v. Batchelor, 321 So.2d 73 (Fla.1975); § 768.041(1) Fla.Stat. (1977). The Uniform Contribution Among Joint Tortfeasors Act also abrogates the common law rule: “When a release ... is given in good faith to one of two or more persons liable in tort for the same injury ... (a) It does not discharge any of the other tort-feasors from liability . . . unless its terms so provide . . . .” § 768.31(5) Fla.Stat. (1977). Clearly there is no prohibition against a general release in section 768.041(1), Florida Statutes (1977). Indeed, the Uniform Act expressly authorizes discharge of all possible tortfeasors as long as the “terms” of the release “so provide.” § 768.31(5)(a), Fla.Stat. (1977). Thus, as long as the parties express their intent to discharge all possible tortfeasors, they are free to do so. We need not decide whether a release which runs to a named tortfeasor plus all others also discharges the latter from liability for contribution. § 768.-31(5)(b) Fla.Stat. (1977).

Discharge of all potential defendants may have far-reaching consequences for an injured plaintiff. As such, it is important that the releasor’s intent to give a general release be clearly expressed. As with contracts generally, the language used in the release is the best evidence of the parties’ intent. When that language is clear and unambiguous, the courts cannot indulge in construction or interpretation of its plain meaning. Boat Town USA v. Mercury Marine Div. of Brunswick Corp., 364 So.2d 15 (Fla.4th DCA 1978). Respondent argues that the instant general release is clear and unambiguous on its face and must be given effect as such. The district court agreed and also stated that had plaintiff intended to limit the release to the named parties, he could have deleted the all-inclusive language.

This release is a printed form with blanks left for the names of those specifically discharged. The printed general release clause immediately follows those, blanks. Petitioner argues that the use of such general release clauses originated to protect those persons in privity with the named parties. See Albert’s Shoes v. Crabtree Construction Co., 89 So.2d 491 (Fla.1956). This was necessary prior to Shingleton v. Bussey, 223 So.2d 713 (Fla.1969), which authorized the joinder of insurance companies. Under this theory, the all-inclusive language was routinely included in printed releases as “boilerplate”, and may not reflect the intent of the parties. See Quarterman v. City of Jacksonville, 347 So.2d 1036, 1039 (Fla.1st DCA 1977).

We agree with the petitioner. The common law rule was abolished in part to avoid imposing the harsh consequences of a general release upon often unsuspecting plaintiffs. McKenna v. Austin, 77 U.S.App.D.C. 228, 134 F.2d 659 (D.C.Cir. 1943); see Pros-ser, The Law of Torts, § 49 Release at 304 (4th Ed. 1971). Florida has not gone to the other extreme of allowing discharge of only those specifically named. Young v. State, 455 P.2d 889 (Alaska 1969); cf. Sage v. Hale, 75 Misc.2d 256, 347 N.Y.S.2d 416 (1973) (release must expressly designate by name or otherwise specifically describe or identify those tortfeasors discharged by that document). Instead, our legislature has sought a middle ground based on the intent of the parties. We feel that the manifestation of intent must be more explicit than signing a printed form which happens to contain broad, general release language in addition to providing spaces for the specifically discharged parties.

The presence of the two types of release, one printed and one written, within a single form creates at least a latent ambiguity. Morton v. Morton, 307 So.2d 835 (Fla.3d DCA 1975). Generally, ambiguities are construed against the drafter of the instrument. Sol Walker & Co. v. Seaboard Coastline R.R. Co., 362 So.2d 45 (Fla.2d DCA 1978). Another basic rule is that where written and printed provisions conflict, the written terms ordinarily prevail. MacIntyre v. Green’s Pool Service, Inc., 347 So.2d 1081 (Fla.3d DCA 1977). However, we feel that the better rule in these particular circumstances is to allow .extrinsic evidence of the parties’ intent. Morton v. Morton, supra.

In sum, we hold that whether a general printed release is effective to discharge other than specifically named tortfeasors is a question of fact. The decision of the district court is quashed and the cause remanded with instructions to reverse the summary judgment and further remand same to the trial court for further proceedings consistent with this opinion.

It is so ordered.

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

BOYD, J., dissents.


text:
    CITIZENS OF the STATE of Florida, Petitioners, v. Paula F. HAWKINS et al., Respondents.
    No. 55830.
    Supreme Court of Florida.
    Feb. 14, 1980.
    Jack Shreve, Public Counsel, and Benjamin H. Dickens, Jr., and Michael McK. Wilson, Associate Public Counsels, Tallahassee, for petitioners.
    Prentice P. Pruitt, Legal Director, and Norman H. Horton, Jr., and Paul Sexton, Staff Counsels, Tallahassee, for Florida Public Service Commission.
    Ronald C. LaFace of Roberts, Miller, Baggett, LaFace, Richard & Wiser, Tallahassee, for Florida Rock and Tank Lines, Motor Fuel Carriers, Redwing Carriers and Fleet Transport.
    W. Guy McKenzie and Thomas F. Pane-bianco of McKenzie & Panebianco, Tallahassee, for McKenzie Tank Lines, Inc., ami-cus curiae.
    Bernard C. Pestcoe and Eric J. Bergknoff of Pestcoe & Freedman, Miami, for Florida Household Good Carriers’ Bureau, Inc., ami-cus curiae.
   PER CURIAM.

In this proceeding, petitioners have questioned only one aspect of the commission’s proceeding and that is the disposition of a motion to dismiss. Petitioners have failed to show that the commission abused its discretion, or that the order of the commission is contrary to some essential requirement of law. Since no error has been shown, the petition for writ of certiorari is denied.

ADKINS, BOYD, OVERTON and SUNDBÉRG, JJ., and VANN, Associate Justice, concur.

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

ALDERMAN, J., dissents.