author: PER CURIAM. OVERTON, Justice,

text:
    THE FLORIDA BAR, Complainant, v. John Montgomery GREENE, Respondent.
    No. 64,091.
    Supreme Court of Florida.
    Jan. 31, 1985.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and David G. McGunegle, Bar Counsel, Orlando, for complainant.
    John Montgomery Greene, in pro. per., Ocala, for respondent.
   PER CURIAM.

This attorney-discipline proceeding is before us on the report of the referee and the petition of The Florida Bar for review of the referee’s recommended punishment. We have jurisdiction. Art. V, § 15, Fla. Const.

This proceeding arises from respondent’s handling of a real estate transaction. In preparing the deeds, respondent made an error in the description of the property, which was discovered by his client two years later. Respondent was notified and, after several requests, failed to correct the mistakes which remained uneorrected as of the time of the referee’s hearing. Respondent also failed to prorate his client’s 1980 tax bill with respect to several lots that had been conveyed in 1980 and failed to respond to the client’s request for proration. In addition, respondent overcharged the client the sum of $300 for services rendered in a mortgage foreclosure action.

The referee recommended that respondent be found gu’lty of violating Disciplinary Rule 1-102(A)(6) of The Florida Bar Code of Professional Responsibility (for conduct adversely reflecting on his fitness to practice law) and Disciplinary Rule 6-101(A)(3) (for neglecting a legal matter entrusted to him).

In determining the appropriate discipline, the referee considered respondent’s prior disciplinary history of a public reprimand and one year of probation for two misdemeanor income tax convictions in 1970, The Florida Bar v. Greene, 235 So.2d 7 (Fla.1970), and a private reprimand for neglect in 1980. The referee recommended (1) that respondent receive a public reprimand and one year of probation with quarterly caseload reports to be submitted to The Florida Bar; (2) that respondent refund, within thirty days, the amount he overcharged his client and compensate her for the failure to prorate the 1980 taxes in the amount of $30; (3) that respondent prepare and record all necessary corrective deeds to clear title to the lands in question; (4) that respondent pay the costs of the disciplinary proceeding; and (5) if respondent fails to timely comply with the terms of the punishment, that he should be suspended from the practice of law for a period of ninety days.

The Florida Bar requests that this Court approve the punishment with the exception of the public reprimand, seeking instead a suspension for a period of at least ninety days. The Bar argues that, in view of respondent’s prior disciplinary history, a public reprimand is not sufficient discipline.

We accept the referee’s findings of fact and recommendations as to guilt, and we approve the recommended discipline.

Accordingly, respondent is found guilty of violating Disciplinary Rules 1-102(A)(6) and 6-101(A)(3). The publication of this opinion in Southern Reporter shall constitute the public reprimand. Respondent is placed on one year of bar-supervised probation, during which time he shall submit quarterly caseload reports to The Florida Bar. In addition, respondent shall refund the amount overcharged his client; compensate her for the failure to prorate her taxes; prepare and record all necessary corrective deeds to clear title to the lands in question; and pay the costs of this proceeding in the amount of $539.40. Judgment is entered against the respondent in the amount of $539.40, for which let execution issue. The respondent’s failure to comply with all of these conditions within thirty days from this date shall result in his immediate suspension from The Florida Bar for ninety days.

It is so ordered.

BOYD, C.J., and ADKINS, McDONALD and SHAW, JJ., concur.

OVERTON, J., dissents with an opinion, in which ALDERMAN and EHRLICH, JJ., concur.

OVERTON, Justice,

dissenting.

I disagree with the discipline imposed. I fully agree with the Bar that, given this respondent’s prior disciplinary history, a public reprimand is insufficient punishment for these violations. Respondent’s misconduct, when viewed in conjunction with his disciplinary history, clearly requires a 90-day suspension from the practice of law. See The Florida Bar v. Hunt, 417 So.2d 967 (Fla.1982); The Florida Bar v. Valantiejus, 355 So.2d 425 (Fla.1978). I also believe that a three-year probationary period should be imposed after the respondent is reinstated.

ALDERMAN and EHRLICH, JJ., concur.


source: Caselaw Access Project

author: ADKINS, Justice.

license: Public Domain

text:
    R. Frederick BOEDY, Petitioner, v. DEPARTMENT OF PROFESSIONAL REGULATION, Respondent.
    No. 64870.
    Supreme Court of Florida.
    Jan. 31, 1985.
    Philip J. Padovano, Tallahassee, for petitioner.
    Charles F. Tunnicliff, Senior Atty., Dept, of Professional Regulation, Tallahassee, for respondent.
   ADKINS, Justice.

This cause is before us pursuant to a certified question of great public importance from the First District Court of Appeal. Boedy v. Department of Professional Regulation, Board of Medical Examiners, 444 So.2d 503 (Fla.1984). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Respondent, Department of Professional Regulation, filed an administrative complaint against the petitioner on November 15, 1982, seeking to revoke, suspend, or take other disciplinary action against him as a licensee under the Medical Practice Act. The complaint asserted that petitioner suffered from a mental or emotional illness which rendered him “unable to practice medicine with reasonable skill and safety” as provided in section 458.331(l)(s), Florida Statutes (1981). Petitioner denied the allegations.

On February 18, 1983, respondent entered an order which required petitioner to submit to a series of psychiatric examinations commencing on March 1, 1983. The order stated that the mental examinations were required “for the purpose of obtaining examination reports and expert opinion and testimony concerning [petitioner’s] ability to practice medicine with reasonable skill and safety.”

Petitioner sought a protective order to avoid the examination requirement, based in part, on the claim that his fifth amendment privilege against self-incrimination would be violated by the mental examinations required under section 458.331(l)(s), Florida Statutes (1981).

In a second order, respondent rescheduled the examination to begin on March 29, 1983. Petitioner renewed his motion for a protective order. In response, respondent denied that the mental examinations were violative of petitioner’s constitutional right against self-incrimination.

On March 16, 1983, the hearing officer entered an order denying petitioner’s motion for protective order. Petitioner filed for review of the order in the First District Court of Appeal to challenge the constitutional validity of the agency’s determination.

On January 18, 1984, the district court issued its opinion stating that the statutory competence proceedings are not penal proceedings, and therefore rejected petitioner’s claim for fifth amendment protection. 444 So.2d at 506. The district court, finding the question to be of great public importance, certified the following question to this Court:

Whether the fifth amendment privilege against compelled self-incrimination applies to disciplinary proceedings initiated under section 458.331(l)(s), Florida Statutes, to determine whether a physician is unable to practice medicine with reasonable skill and safety to patients as a result of a mental or physical condition. Id.

The district court correctly answered the question in the negative, and we approve its decision.

Section 458.331(l)(s), Florida Statutes (1981), addresses the act of:

(s) Being unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. In enforcing this paragraph, the department shall have, upon probable cause, authority to compel a physician to submit to a mental or physical examination by physicians designated by the department. Failure of a physician to submit to such examination when so directed shall constitute an admission of the allegations against him, unless the failure was due to circumstances beyond his control, consequent upon which a default and final order may be entered without the taking of testimony or presentation of evidence. A physician affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he can resume the competent practice of medicine with reasonable skill and safety to patients. In any proceeding under this paragraph, neither the record of proceedings nor the orders entered by the board shall be used against a physician in any other proceeding.

Petitioner relies upon this Court’s holding in State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla.1973), in support of his argument that the fifth amendment privilege against compelled self-incrimination applies to proceedings initiated under section 458.331(l)(s), Florida Statutes (1981). Petitioner asserts that section 458.331(1)(s) is unconstitutional under Vining.

In Vining, a licensed real estate broker refused to file the statutorily required sworn answer to charges made against him in a professional disciplinary proceeding and the statute provided for entry of a default if no answer was filed. This Court held that filing an answer amounted to testimony, that the testimony was compelled under threat of license forfeiture, and that the potential penalty of license suspension or revocation was sufficiently severe to invoke the constitutional protections against compulsory self-incrimination. Id. at 492.

Recognizing that proceedings under section 458.331(l)(s), Florida Statutes (1981), are limited to determinations of fitness to practice, the district court distinguished Vining, which involved penal sanctions which were sought due to professional misconduct. 444 So.2d at 505. The district court further found that proceedings under the statute cannot be considered penal in character for purposes of the fifth amendment privilege against compelled self-incrimination and that the proceedings merely seek to determine whether petitioner is “able to practice medicine with reasonable skill and safety.” Id. at 506. The district court found section 458.331(l)(s), Florida Statutes (1981), to be constitutional. We agree.

The right of a properly qualified and licensed individual to practice medicine is a valuable property right which must be protected under the constitution and laws of Florida. State ex rel. Sbordy v. Rowlett, 138 Fla. 330, 190 So. 59 (1939). This right is not absolute, however, but is subject to regulation under the police power of this state. Id. at 62. When a conflict arises between the right of a physician to pursue the medical profession and the right of the sovereignty to protect its citizenry, it follows that the rights of the physician must yield to the power of the state to prescribe reasonable rules and regulations which will protect the people from incompetent and unfit practitioners.

The interest of the sovereignty in regulating physicians is especially great since physicians are in a position of public trust and responsibility. Like other professionals, the physician is constantly interacting with the public. As such, mental fitness and emotional stability are essential traits that a physician must possess in order to competently practice medicine in a manner not injurious to the citizenry. See Florida Board of Bar Examiners Re: Applicant, 443 So.2d 71 (Fla.1983).

The fifth amendment privilege against self-incrimination protects the accused from being compelled to testify against himself. However, the privilege does not extend to the exclusion of evidence of his physical or mental condition when such evidence is otherwise admissible, even when the evidence is obtained by compulsion. Parkin v. State, 238 So.2d 817, 820 (Fla.1970), cert. denied, 401 U.S. 974, 91 S.Ct. 1189, 28 L.Ed.2d 322 (1971).

In Parkin v. State, this Court succinctly stated the differentiation between the issue of mental competency and guilt-in-fact:

Self-incrimination is not directly an issue in cases such as this, simply because the question to be resolved is not guilt or innocence, but the presence or absence of mental illness. Illness, particularly mental illness, although often capable of being proved by extrinsic evidence, is considered more susceptible to proof by evidence based on interviews with the defendant and requiring his cooperation. Id. at 821.

Section 458.331(l)(s) does not deal with an issue of guilt or innocence. Misconduct and subsequent penalties for that misconduct are not at issue under the statute. What is at issue under the statute is whether a physician is fit to practice medicine with reasonable skill and safety.

The compelling state interest in protecting the public justifies an investigation into mental fitness. In Florida Board of Bar Examiners Re: Applicant, 443 So.2d 71 (Fla.1983), this Court upheld the authority of the Florida Board of Bar Examiners to require applicants for admission to The Florida Bar to disclose prior treatment for “amnesia, or any form of insanity, emotional disturbance, nervous or mental disorder,” and to release all medical records

pertaining thereto. Id. at 73. In that case, this Court found that the state’s interest in ensuring that only those fit to practice law were admitted to the bar met the compelling state interest standard. Likewise, the state has a compelling interest in the regulation of the practice of medicine within its boundaries in order to protect the health, safety and welfare of its citizens. Gold-farb v. Virginia State Bar, 421 U.S. 773, 792, 95 S.Ct. 2004, 2015, 44 L.Ed.2d 572 (1975); Boedy v. Department of Professional Regulation, Board of Medical Examiners, 444 So.2d 503, 504 (Fla. 1st DCA 1984).

A physician may not both refuse to submit to a mental or physical examination to demonstrate his fitness to practice, and yet demand that he receive the benefits of the status of being a licensed physician. He may not by his asserting the privilege either diminish his obligation to the public to establish his fitness, or escape the consequences imposed by the state of Florida for failing to satisfy that obligation. Thus, we find it is constitutionally permissible to deny authority to practice medicine to a physician who asserts the privilege against self-incrimination if his claim has prevented full assessment of his fitness and competency to practice.

So long as state authorities do not derive any imputation of guilt from a claim of the privilege or use the testimonial revelations gleaned from the physician in any other proceeding, there occurs no harmful incriminatory abuse of the information extracted from the physician. Under section 458.-331(l)(s), Florida Statutes (1981), neither the testimony received from a physician, nor the orders subsequently entered on the basis of that testimony may be used against the physician in any other administrative, civil or criminal proceeding.

We further find that the mental examination sought by the Department of Professional Regulation under the statute is the least intrusive means available to determine a physician’s mental fitness to practice. The information sought from the physician pursuant to a mental examination is essential to the department in evaluating his fitness. The means employed under the statute cannot be narrowed without impeding the effectiveness of the department in carrying out its responsibilities. Moreover, a physician affected under the statute is afforded an opportunity at reasonable intervals to demonstrate his fitness to resume the practice of medicine.

We find that state authorities, upon a finding of probable cause, may in the course of a bona fide assessment of a physician’s fitness to practice medicine require that the physician submit to mental or physical examinations to demonstrate his fitness, and may order his discharge if he declines.

Accordingly, we approve the decision of the district court and hold that the fifth amendment privilege against compelled self-incrimination does not apply to proceedings initiated under section 458.-331(l)(s), Florida Statutes (1981).

It is so ordered.

BOYD, C.J., and OVERTON, ALDERMAN, MCDONALD, EHRLICH and SHAW, JJ., concur.


author: ALDERMAN, Justice.

text:
    Adriana BACARDI, Petitioner, v. Robert B. WHITE, Trustee, and Luis Facundo Bacardi, Respondents.
    No. 65181.
    Supreme Court of Florida.
    Jan. 31, 1985.

      Joe N. Unger of the Law Offices of Joe N. Unger, P.A., Miami, and Nard S. Hel-man of Helman & Young, Coral Gables, for petitioner.
    Steven Naclerio, Miami, for Robert B. White.
    Roger D. Haagenson, Fort Lauderdale, for Luis Facundo Bacardi.
   ALDERMAN, Justice.

Adriana Bacardi seeks review of the decision of the District Court of Appeal, Third District, in White v. Bacardi, 446 So.2d 150 (Fla. 3d DCA 1984), which expressly and directly conflicts with Gilbert v. Gilbert, 447 So.2d 299 (Fla. 2d DCA 1984).

The issue presented is whether disbursements from spendthrift trusts can be garnished to satisfy court ordered alimony and attorney’s fee payments before such disbursements reach the debtor-beneficiary. The Third District in Bacardi held that a former wife of a spendthrift trust beneficiary may not reach the income of that trust for alimony before it reaches the beneficiary unless she can show by competent and substantial evidence that it was the settlor’s intent that she participate as a beneficiary. We quash the decision of the district court and hold that disbursements from spendthrift trusts, in certain limited circumstances, may be garnished to enforce court orders or judgments for alimony before such disbursements reach the debtor-beneficiary. We also hold that an order or judgment for attorney’s fees awarded incident to the divorce or the enforcement proceedings may be collected in the same manner.

The facts relevant to this holding are as follows. Luis and Adriana Bacardi were married for approximately two years and had no children. When the marriage ended in divorce, they entered into an agreement whereby Mr. Bacardi agreed to pay Mrs. Bacardi alimony of $2,000 per month until the death of either of them or until she remarried. The final judgment dissolving their marriage incorporated this agreement.

Shortly thereafter Mr. Bacardi ceased paying alimony. Mrs. Bacardi subsequently obtained two judgments for the unpaid alimony, with execution authorized, in the total amount of $14,000. She also obtained a third judgment for attorney’s fees in the amount of $1,000 awarded incident to the divorce. In aid of execution on the three judgments, she served a writ of garnishment on Robert White as a trustee of a spendthrift trust created by Mr. Bacardi’s father for the benefit of his son Luis. Additionally, she obtained a continuing writ of garnishment against the trust income for future alimony payments as they became due.

The trust instrument contained a spendthrift provision which stated:

No part of the interest of any beneficiary of this trust shall be subject in any event to sale, alienation, hypothecation, pledge, transfer or subject to any debt of said beneficiary or any judgment against said beneficiary or process in aid of execution of said judgment.

Both Luis Bacardi and Mr. White appealed the trial court’s garnishment order. They asserted that under this spendthrift provision, the trust could not be garnished for the collection of alimony and incident attorney’s fees. The district court agreed, reversed the trial court’s order, and remanded the case for further proceedings.

The district court noted that this state has long recognized the validity of spendthrift trust provisions, Waterbury v. Munn, 159 Fla. 754, 32 So.2d 603 (1947), and further that Florida has no statutory law limiting or qualifying spendthrift provisions where alimony payments are involved. In deciding this case, the district court aligned itself with what it believed to be both the modern trend and the best reasoned view. It stated that its holding squares with the public policy of this state as expressed in Waterbury v. Munn. It concluded that the legislature, rather than the courts, should resolve the question whether that public policy should yield to the competing public policy of enforcing support.

Respondents urge that we approve the district court's decision and hold that the settlor’s intent prevails over any public policy arguments which would allow the alienation of disbursements from the trust. They contend that an ex-wife’s debt is no different than any ordinary debt even though it represents unpaid alimony and related attorney’s fees and that, therefore, her claim should be treated the same as the claim of any other creditor. They assert that it is clear from reading the spendthrift provision that the settlor did not intend Adriana Bacardi to participate as a beneficiary and that this intent precludes garnishment.

This case involves competing public policies. On the one hand, there is the long held policy of this state that recognizes the validity of spendthrift trusts. On the other hand, there is the even longer held policy of this state that requires a former spouse or a parent to pay alimony or child support in accordance with court orders. When these competing policies collide, in the absence of an expression of legislative intent, this Court must decide which policy will be accorded the greater weight.

We recognize that spendthrift trusts serve many useful purposes such as protecting beneficiaries from their own improvidence, protecting parties from their financial inabilities, and providing a fund for support, all of which continue to have merit. We acknowledge that one of the basic tenets for the construction of trusts is to ascertain the intent of the settlor and to give effect to this intent. See West Coast Hospital Association v. Florida National Bank, 100 So.2d 807 (Fla.1958). We are also aware that some courts of other jurisdictions have refused to invade spendthrift income for alimony and support solely on the basis that the settlor’s intent controls. For example, in Erickson v. Erickson, 197 Minn. 71, 266 N.W. 161 (1936), the Minnesota Supreme Court held that the ex-wife of a spendthrift trust beneficiary could not reach his interest for alimony and support and stated:

When unrestrained by statute it is the intent of the donor, not the character of the donee’s obligation, which controls the availability and disposition of his gift. The donee’s obligation to pay alimony or support money, paramount though it may be, should not, in our opinion, transcend the right of the donor to do as he pleases with his own property and to choose the object of his bounty. Our conclusion does not arise out of any anxiety for the protection of the beneficiary. In the absence of statute and within the limits as to perpetuities, a donor may dispose of his property as he fees fit, and this includes corpus or principal as well as income.

Id. at 78, 266 N.W. at 164 (emphasis supplied). Accord Bucknam v. Bucknam, 294 Mass. 214, 200 N.E. 918 (1936); Dinwiddie v. Baumberger, 18 Ill.App.3d 933, 310 N.E.2d 841 (1974).

Other jurisdictions have permitted an ex-spouse to reach the income of a spendthrift trust for alimony and child support on public policy grounds finding that the legal obligation of support is more compelling than enforcing the settlor’s intent. See Safe Deposit & Trust Co. v. Robertson, 192 Md. 653, 65 A.2d 292 (1949) (spendthrift trust provisions should not be extended to alimony claims because the ex-spouse is a favored suitor and the claim is based upon the strongest public policy grounds); Lucas v. Lucas, 365 S.W.2d 372 (Tex.Civ.App. 1962) (public policy will not allow a spendthrift trust beneficiary to be well taken care of when those who he has a legal duty to support must do without such support); Dillon v. Dillon, 244 Wis. 122, 11 N.W.2d 628 (1943) (public policy will not prohibit spendthrift trust funds from being reached by a beneficiary’s wife). See also Restatement (Second) of Trusts § 157 (1959).

This state has always had a strong public policy favoring the enforcement of both alimony and child support orders. For example, in Brackin v. Brackin, 182 So.2d 1 (Fla.1966), we held that the basis of an order awarding alimony or support money is the obligation imposed by law that a spouse do what in equity and good conscience he or she ought to do under the circumstances. We said: “Unlike judgments and decrees for money or property growing out of other actions, alimony and support money may have no foundation other than the public policy which requires the husband to pay what he ought to pay_” Id. at 6 (emphasis supplied). In City of Jacksonville v. Jones, 213 So.2d 259 (Fla. 1st DCA 1968), the district court stated “[t]he public policy of this state requires that judicial orders providing for payment of child support be enforceable.” Id. at 259.

We have weighed the competing public policies and, although we reaffirm the validity of spendthrift trusts, we conclude that in these types of cases the restraint of spendthrift trusts should not be an absolute bar to the enforcement of alimony orders or judgments. Florida’s interest in the enforcement of these awards under certain limited circumstances is paramount to the declared intention of the settlor and the restraint of a spendthrift trust.

In not every case where someone is attempting to enforce alimony orders or judgment, however, will garnishment of a spendthrift trust be appropriate. This enforcement alternative should be allowed only as a last resort. If the debtor himself or his property is within the jurisdiction of this state’s courts, the traditional methods of enforcing alimony arrearages may be sufficient. In this event, there would be no overriding reason to defeat the intent of the settlor. Florida courts have a variety of methods available to enforce alimony and child support. When these traditional remedies are not effective, it would be unjust and inequitable to allow the debtor to enjoy the benefits of wealth without being subject to the responsibility to support those whom he has a legal obligation to support.

We further limit this right of garnishment to disbursements that are due to be made or which are actually made from the trust. If, under the terms of the trust, a disbursement of corpus or income is due to the debtor-beneficiary, such disbursement may be subject to garnishment. If disbursements are wholly within the trustee’s discretion, the court may not order the trustee to make such disbursements. However, if the trustee exercises its discretion and makes a disbursement, that disbursement may be subject to the writ of garnishment.

This case raises another issue. The trial court ordered a continuing garnishment against the Bacardi trust for future payments of alimony as the sums became due. This order was challenged on appeal by the trustee and the debtor-beneficiary. In light of its holding that the trust was not subject to garnishment, the district court did not consider this issue. Since we quash the district court’s holding, it is appropriate that we consider and resolve this issue.

The same point was presented and decided by the Second District in Gilbert v. Gilbert. In that case, the husband objected to a continuing writ of garnishment for future alimony against his spendthrift trust. He argued that section 61.12(2), Florida Statutes (1981), which authorized continuing writs of garnishment to enforce orders for alimony and child support, is applicable only to the garnishment of an employer. The Second District, in responding to this argument, held that the same result could be obtained under the provisions of section 61.11, Florida Statutes (1981), which reads as follows:

61.11 Effect of judgment of alimony. — A judgment of alimony granted under s. 61.08 or s. 61.09 releases the party receiving the alimony from the control of the other party, and the party receiving the alimony may use his alimony and acquire, use, and dispose of other property uncontrolled by the other party. When either party is about to remove himself or his property out of the state, or fraudulently convey or conceal it, the court may award a ne exeat or injunction against him or his property and make such orders as will secure alimony to the party who should receive it.

The Gilbert court said:

The remedy is drastic but appropriate to cope with the husband’s misconduct. We, therefore, sustain the continuing aspect of the order in lieu of ne exeat as necessary to secure payment of alimony. The bank may continue to administer the trust according to its provisions, but to protect itself it will need to withhold all payments due to the husband in excess of alimony then due and owing in order to secure the future alimony payments. The bank is entitled to seek the court’s instructions, and the order is always subject to modification upon a proper showing by any interested party. Id. at 302-03.

We agree that the continuing aspect of such orders may be sustained in lieu of ne exeat as necessary to secure payment of alimony. It should be remembered, however, that a continuing garnishment against a spendthrift trust in lieu of ne exeat is also a “last resort” remedy that is available only when the traditional methods of enforcing alimony arrearages are not effective. We also note that where a continuing garnishment is appropriate, the trustee, if it wishes to make payments to the debtor-beneficiary in excess of alimony then due, should seek court approval before it makes such payments. The court may then authorize such payments if sufficient assets remain in the trust or if other provisions are made to secure the payment of alimony to the person who should receive it.

We also hold that an order awarding attorney’s fees or a judgment for such fees which result from the divorce or enforcement proceedings is collectible in the same manner. Such awards represent an integral part of the dissolution process and are subject to the same equitable considerations. If the ex-spouse must pay attorney’s fees out of the support awards, it only reduces the amount of support available to the needy party. This is especially true where post-decretal services are required by an attorney to enforce such awards.

Accordingly, we quash the decision of the district court and remand this case for further proceedings consistent with our opinion.

It is so ordered.

ADKINS, OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur.

BOYD, C.J., dissents.

      . The facts in Gilbert, as stated by the Second District Court, are as follows:
      In the judgment of dissolution, the court ordered the husband to pay permanent peri-odie alimony of $2,500 per month and lump sum alimony in the amount of $35,000 payable in six-month installments of $3,500. The court also required that he be responsible for reasonable and necessary medical expenses of the wife attributable to her multiple sclerosis and that he pay her attorney's fees of $24,750. The husband never paid the attorney’s fees and later stopped paying alimony and the wife's medical expenses. The court entered a writ of ne exeat and held him in contempt, but these actions proved futile because he fled the jurisdiction. He is now thought to be living in England. The husband also removed his assets from the state, thereby thwarting the wife's efforts to collect the arrearages.
      In her efforts to enforce the dissolution judgment, the wife sought to garnish the husband's interest in a trust established by Emily H. Gilbert for the benefit of various beneficiaries and administered by Southeast Bank as trustee. The trust contained the following paragraph:
      5.2 — Spendthrift Provision; the interest of each beneficiary in the income or principal of each trust hereunder shall be free from the control or interference of any creditor of a beneficiary or of any spouse of a married beneficiary and shall not be subject to attachment or susceptible of anticipation or alienation.
      Notwithstanding this provision, the court entered judgment in garnishment against the bank as trustee for $50,500 arrearages in alimony and medical expenses and $18,000 in attorney’s fees. The court also entered a continuing writ of garnishment directing the bank to pay to the wife out of the trust the periodic and lump sum alimony as it becomes due. Id. at 300-01.
      The Gilbert court held:
      In light of our strong public policy toward requiring persons to support their dependents, we hold that spendthrift trusts can be garnished for the collection of arrearages in alimony. We also believe that a claim for attorney’s fees awarded incident to the divorce is collectible in the same manner. Id. at 302.

      . Although this case involves a garnishment to enforce court orders or judgments for alimony, the rationale of our holding would also apply to child support cases.


text:
    SOUTHEAST BANK, N.A., formerly known as Southeast Bank Trust Company, Petitioner, v. Betty J. GILBERT, Respondent.
    No. 65205.
    Supreme Court of Florida.
    Jan. 31, 1985.

      George R. McLain of Harnden, McLain & Dart, Chartered, and Eugene 0. George of Burket, Smith, Bowman & George, Sarasota, for petitioner.
    Arthur D. Ginsburg of Ginsburg, Byrd, Jones & Dahlgaard, Sarasota, for respondent.
    William L. Hyde of Akerman, Senterfitt & Eidson, Tallahassee, amicus curiae for Florida Bankers Association.
    A. Matthew Miller of Miller & Schwartz, P.A., Hollywood, and Melvyn B. Frumkes of Frumkes & Greene, P.A., Miami, amicus curiae for American Academy of Matrimonial Lawyers, Florida Chapter.
   ALDERMAN, Justice.

We review the decision of the District Court of Appeal, Second District, in Gilbert v. Gilbert, 447 So.2d 299 (Fla. 2d DCA 1984), which expressly and directly conflicts with White v. Bacardi, 446 So.2d 150 (Fla. 3d DCA 1984).

The Second District affirmed the trial court and held that spendthrift trusts may be garnished for the collection of both alimony arrearages and attorney’s fees awarded incident to the divorce. It also held that a continuing writ of garnishment could be issued to secure the payment of future alimony.

We have resolved these issues in Bacardi v. White, 463 So.2d 218 (Fla. 1985), wherein we held that disbursements from spendthrift trusts, in certain limited circumstances, may be garnished to enforce court orders on judgments for alimony and incident attorney’s fees before such disbursements reach the debtor-beneficiary and that a continuing writ of garnishment may be appropriate in some circumstances.

Accordingly, we approve the result reached by the Second District and remand this case for further proceedings consistent with our decision in Bacardi.

It is so ordered.

ADKINS, OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur.

BOYD, C.J., dissents.


author: McDONALD, Justice.

text:
    STATE of Florida ex rel. Orneta M. QUIGLEY, Petitioner, v. James Webster QUIGLEY, Respondent.
    No. 65192.
    Supreme Court of Florida.
    Jan. 31, 1985.

      Jim Smith, Atty. Gen., and James A. Peters, Asst. Atty. Gen., Tallahassee, for petitioner.
    Robert L. Donald and William C. Merchant of Pavese, Shields, Garner, Haver-field, Dalton & Harrison, Fort Myers, for respondent.
   McDONALD, Justice.

We have for review State ex rel. Quigley v. Quigley, 446 So.2d 1174 (Fla. 2d DCA 1984), which is in express and direct conflict with Helmick v. Helmick, 436 So.2d 1122 (Fla. 5th DCA 1983). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and quash Quigley.

Orneta Quigley filed a petition in Michigan to initiate support proceedings under the Uniform Reciprocal Enforcement of Support Act (URESA) to enforce a 1978 alimony order entered in Michigan in her favor against her ex-husband, James Webster Quigley. In November 1982 a Michigan circuit court certified that the petition set forth facts from which it could be determined that Mr. Quigley owes the duty of support of alimony and that the circuit court in Lee County, Florida could obtain jurisdiction over this issue. The state of Florida, functioning as the responding jurisdiction, processed the petition and served it upon Mr. Quigley.

In defense of the petition Mr. Quigley filed a motion to dismiss, contending that Florida’s revised URESA, chapter 88, Florida Statutes (1981), only provides remedies for arrearages of child support and does not include alimony. After a hearing on the motion, the circuit court entered an order of dismissal on the basis that actions which are pure alimony in nature are not enforceable through URESA proceedings. On appeal the Second District Court of Appeal affirmed the trial court’s dismissal and construed the statement of legislative intent in section 88.012 to deny Florida courts subject matter jurisdiction to enforce an alimony provision of an out-of-state divorce judgment. The court acknowledged that its decision conflicts with Helmick, which enforced an alimony judgment through URESA.

At issue in this case is the intended effect of the 1979 amendments to Florida’s URESA. Florida adopted the original Uniform Reciprocal Enforcement of Support Act in 1955. Ch. 29901, Laws of Fla. (1955). Chapter 79-383, Laws of Florida, revised chapter 88 so that Florida’s URE-SA would comport with the 1968 version of the Reciprocal Enforcement of Support Act as drafted by the National Conference of Commissioners of Uniform State Laws. In addition to the numerous amendments necessary to conform chapter 88 to the revised version of URESA, the legislature also inserted section 88.012 entitled “Legislative intent.” This section declares that it is the “public policy of this state that this act shall be construed and administered to the end that children residing in this or some other state shall be maintained from the resources of responsible parents, whether the responsible parents live in this or some other state.” Several references are made to child support, but the word “alimony” does not appear in this section.

Mr. Quigley reasons that, because section 88.012 mentions only child support, it must have been the legislature’s intent to limit the scope of the term “support,” which is found in the subsequent sections of the URESA, to support for a dependent child and not a former spouse. The second district adopted the position of Mr. Quigley. Although we acknowledge the logic of Mr. Quigley’s reasoning, we do not see that the legislature intended to exclude orders of alimony support from the scope of Florida’s URESA.

Chapter 88 had been construed to include both alimony and child support pri- or to enactment of the 1979 amendments. Thompson v. Thompson, 93 So.2d 90 (Fla. 1957); Cox v. State, 180 So.2d 467 (Fla. 3d DCA 1965); Clark v. Clark, 139 So.2d 195 (Fla. 2d DCA 1962); 1977 Op. Att’y Gen. Fla. 077-77 (July 26,1977). The legislature is presumed to be cognizant of the judicial construction of a statute when contemplating making changes in the statute, Seddon v. Harpster, 403 So.2d 409 (Fla.1981), and the changes made to chapter 88 do not evince an intent to exclude alimony from the meaning of the word “support” as it is used throughout the statute. In fact the amended URESA defines “support order” to mean

any judgment, decree, or order of support in favor of a petitioner, whether temporary or final or subject to modification, revocation, or remission, regardless of the kind of action or proceeding in which it is entered.

§ 88.031(19), Fla.Stat. (1981) (emphasis added). If the legislature had meant to distinguish between child support and alimony, it should have redefined this term, especially in light of the previous application of URE-SA to alimony awards.

We cannot find that the statement of legislative intent impliedly meant to repeal alimony support actions previously available under URESA. It is well established that amendment by implication is not favored and will not be upheld in doubtful cases. State v. J.R.M., 388 So.2d 1227 (Fla.1980); Miami Water Works Local No. 654 v. City of Miami, 157 Fla. 445, 26 So.2d 194 (1946). A better explanation for the injection of section 88.012 into Florida’s URESA is that the legislature wished to give recognition to the additional remedies available under the Aid to Families with Dependent Children Program (AFDC) in chapter 409, Florida Statutes, implemented in 1976. Ch. 76-220, Laws of Fla. The statement of legislative intent clarifies the fact that the remedies for child support under URESA are “augmented by the additional remedies directed to the resources of the responsible parents as mandated by the Florida IV-D program in chapter 409.” § 88.012, Fla.Stat. (1981).

Further support for the inclusion of alimony within Florida’s URESA is found in the nature of the statute itself. It is intended to be enforced both uniformly and reciprocally throughout the various states. §§ 88.311, 88.021, Fla.Stat. (1981). The courts of other jurisdictions have construed the act to include support for spouses. E.g., Ex Parte O’Neill, 420 So.2d 264 (Ala.1982); Mehrstein v. Mehrstein, 245 Cal.App.2d 646, 54 Cal.Rptr. 65 (2d DCA 1966); Henry v. Henry, 115 Ga.App. 211, 154 S.E.2d 298 (1967); Mullis v. Mullis, 669 P.2d 763 (Okla.1983); Alig v. Alig, 220 Va. 80, 255 S.E.2d 494 (1979). If Florida does not qualify as a reciprocating state in other jurisdictions, Florida citizens will not be able to look to those states for the enforcement through URESA of support orders entered by Florida courts. Thus, as a matter of judicial and public policy, Florida courts should enforce a foreign judgment of alimony under URESA.

In holding that a Florida court may enforce a foreign judgment of alimony under URESA, we do not mean to imply that the extraordinary remedy available under URESA should be extended to all foreign alimony judgments. The issuing state must certify that the alimony judgment is for the support of the spouse. Awards of alimony which constitute part of a property settlement should not be enforced through URESA.

Since the URESA petition in this case certifies that the alimony award was a support order, we quash the decision of the district court which affirmed the dismissal of Mrs. Quigley’s petition for lack of subject matter jurisdiction. We direct the district court to remand this case to the circuit court for further proceedings consistent with this opinion.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, EHRLICH and SHAW, JJ., concur.

       Foreign alimony awards which constitute part of a property settlement must be enforced like any other foreign judgment in Florida. Ch. 84-5, Laws of Fla., provides that foreign judgments may be domesticated by simply recording them in the office of the clerk of the circuit court of any county.


text:
    Gerald LEWIS, as Comptroller and Head of the Department of Banking and Finance, State of Florida, Appellant, v. PUBLIC SERVICE COMMISSION, Appellee.
    No. 65350.
    Supreme Court of Florida.
    Jan. 31, 1985.
    S. Craig Kiser, General Counsel, Charles L. Stutts, Deputy General Counsel, and Kenneth J. Muszynski, Assistant General Counsel, Dept, of Banking and Finance, Tallahassee, for appellant.

      William S. Bilenky, General Counsel, and Paul Sexton, Associate General Counsel, Tallahassee, for appellee.
   McDONALD, Justice.

This case is before us on direct appeal from a Public Service Commission ■ (PSC) order approving a utility surcharge refund plan proposed by the City of Tallahassee. We have jurisdiction. Art. Y, § 3(b)(2), Fla. Const. The issue here is whether sub- ■ section 366.06(3) or subsection 717.05(2), Florida Statutes (1983), controls the disposition of unclaimed municipal utility refunds created by an improper rate structure. We hold that such refunds should be disposed of in accordance with chapter 717.

This case arose out of a PSC order requiring the city to eliminate its fifteen percent surcharge on out-of-city electric utility customers. The PSC stayed enforcement of the order while the city’s appeal was pending before this Court. The stay order conditioned the city’s continued collection of the full surcharge on the refund, with interest, of that portion of the out-of-city surcharge exceeding the in-city utilities tax rate should the city lose its appeal. We affirmed the PSC order limiting the out-of-city surcharge to no more than the utility tax paid by city residents. City of Tallahassee v. Florida Public Service Commission, 441 So.2d 620 (Fla.1983).

The city then filed its petition for approval of refund plan with the PSC. The city proposed to recalculate, at the PSC approved surcharge rate of eight and one-half percent, all bills for out-of-city electric service rendered while the PSC order was on appeal. The difference between the original amount billed and the recalculated amount, plus interest, would be refunded to out-of-city customers. Active customer accounts would receive their refund by credit to current bills. The city proposed making refunds of one dollar or more due inactive customer accounts by mailing checks to the last-known address of those accounts. Inactive customer accounts due less than one dollar would not get a refund. The city initially proposed that refund checks unclaimed or uncashed after twelve months from the date of issue would be voided and those amounts, along with the refunds of less than one dollar due inactive accounts, would be refunded to all active customer accounts through the Energy Cost Adjustment Clause.

Gerald Lewis, in his capacity as Comptroller of Florida and head of the Department of Banking and Finance, sought leave to intervene and modify the city’s proposed refund plan. Lewis contended that the city’s plan to void the unclaimed or un-cashed refund checks after twelve months did not comply with the requirements of the Florida Disposition of Unclaimed Property Act, chapter 717, Florida Statutes (1983), specifically applicable to unclaimed utility refunds under subsection 717.05(2), Florida Statutes (1983). The city agreed with Lewis that subsection 717.05(2) governed the disposition of the unclaimed refunds due out-of-city customers. The city modified its refund plan before the PSC by agreeing to turn over to Lewis all amounts in any refund checks which are voided after being unclaimed or uncashed for twelve months from the date of issue. The city later agreed to turn over the total amount of less than one dollar refunds to Lewis as well.

Despite the fact that the city and Lewis had agreed on the modified refund plan, the PSC approved the city’s original refund plan. Lewis moved for reconsideration. The PSC denied the motion, finding that subsection 366.06(3), Florida Statutes (1983), authorizes the PSC to direct the disposition of unclaimed utility refunds.

The PSC has jurisdiction over the rate structure of municipal electric utilities. § 366.04(2)(b), Fla.Stat. (1983). The rate structure of a utility is “the classification system used in justifying different rates.” City of Tallahassee v. Mann, 411 So.2d 162, 163 (Fla.1981). The city’s surcharge on out-of-city customers comes within the rate structure jurisdiction of the PSC. Id. The PSC’s jurisdiction over rate structure, however, does not include jurisdiction over the actual rates charged by a municipal electric utility. Amerson v. Jacksonville Electric Authority, 362 So.2d 433 (Fla. 1st DCA 1978). Thus, the PSC misplaces its reliance on subsection 366.06(3) because that statute only authorizes the PSC to direct refunds of unjustified rates charged by public utilities. By its terms, subsection 366.06(3) does not apply to municipal utility refunds. We recognize that in City of Tallahassee v. Florida Public Service Commission, 433 So.2d 505 (Fla.1983), we approved the PSC’s use of the factors set out in subsection 366.06(1) in determining whether the city’s surcharge was justified. We do not believe that opinion requires that we ignore the limited scope of the PSC’s refund authority contained in subsection 366.06(3). Unclaimed municipal utility refunds are specifically covered by subsection 717.05(2). That provision should control under the facts of this case.

Accordingly, we reverse the PSC order on appeal and remand for further proceedings consistent with this opinion.

It is so ordered.

BOYD, C.J., and ADKINS, EHRLICH and SHAW, JJ., concur.

OVERTON and ALDERMAN, JJ., dissent.

      . This subsection provides:
      717.05 Deposits and refunds held by utilities. — The following funds held or owing by any utility are presumed abandoned:
      ******
      (2) Any sum which a utility has been ordered to refund and which was received for utility services rendered in this state, together with any interest thereon, less any lawful deductions, that has remained unclaimed by the person appearing on the records of the utility entitled thereto for more than 7 years after the date it became payable, in accordance with the final determination or order providing for the refund.

      . § 366.06(3) provides, in pertinent part, that the PSC
      shall by further order require such utility to refund with interest at a fair rate, to be determined by the commission in such manner as it may direct, such portion of the increased rate or charge as by its decision shall be found not justified. Any portion of such refund not thus refunded to patrons or customers of the utility shall be refunded or disposed of by the utility as the commission may direct; however, no such funds shall accrue to the benefit of the utility.


text:
    Carl Ray SONGER, Appellant, v. STATE of Florida, Appellee.
    No. 66472.
    Supreme Court of Florida.
    Jan. 31, 1985.

      Howard W. Babb, Jr., Public Defender, Tavares, for appellant.
    Jim Smith, Atty. Gen., Peggy Ann Quince and Ann Garrison Paschall, Asst. Attys. Gen., Tampa, for appellee.
   ADKINS, Justice.

Carl Ray Songer appeals the denial of his second motion to vacate judgment and death sentence. He also files an application of stay of execution. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

Songer was convicted of the first-degree murder of Florida Highway Patrolman Ronald G. Smith and sentenced to death. The facts of the case are set forth in the first direct appeal to this Court in which we affirmed the conviction and sentence. Songer v. State, 322 So.2d 481 (Fla.1975) (Songer I). The United States Supreme Court vacated appellant’s sentence and remanded the case to this Court for reconsideration in light of the ruling in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). Songer v. Florida, 430 U.S. 952, 97 S.Ct. 1594, 51 L.Ed.2d 801 (1977).

On remand to the trial court for resen-tencing a death sentence was again imposed. We affirmed the second sentence. Songer v. State, 365 So.2d 696 (Fla.1978) (Songer II).

Appellant subsequently filed his first motion to vacate judgment and sentence and this Court affirmed the order of the trial judge denying relief. Songer v. State, 419 So.2d 1044 (Fla.1982). (Songer III).

A petition for habeas corpus alleging ineffective assistance of counsel on his direct appeal and his appeal from resentencing was then filed in this Court. We dismissed the petition and denied the motion for a stay of execution. Songer v. State, 423 So.2d 355 (Fla.1982) (Songer IV).

Appellant then raised his state court claims in a petition for writ of habeas corpus in the federal district court. The petition was denied. Songer v. Wainwright, 571 F.Supp. 1384 (M.D.Fla.1983). The Eleventh Circuit affirmed the denial of the writ. Songer v. Wainwright, 738 F.2d 451 (11th Cir.1984). A petition for writ of cer-tiorari was denied by the United States Supreme Court. Songer v. Wainwright, — U.S. —, 105 S.Ct. 817, 83 L.Ed.2d 809 (1985).

After relief was denied in the federal courts on appellant’s habeas corpus petition, he once again filed a 3.850 motion in the circuit court. This appeal comes to us from the denial by the circuit court of appellant’s second motion to vacate.

In his appeal to this Court Songer argues that he was denied a full and fair individualized sentencing hearing at his trial in 1974 because his defense counsel reasonably believed, and this belief was shared by the trial judge and the prosecutor, that Florida law at that time precluded the admission of any mitigating character evidence other than that enumerated in the applicable statute, section 921.141(6), Florida Statutes (1983). He contends that he has newly discovered evidence that will prove his claim. This evidence consists of the testimony of trial defense counsel at the hearing that he believed he was precluded from offering any non-statutory mitigating evidence and the testimony of a juror at Songer’s trial that she believed she could only consider the statutorily enumerated mitigating factors.

Regarding the testimony of the juror, the trial judge properly determined that it was not admissible under section 90.607(2)(b), Florida Statutes (1983), which provides:

Upon an inquiry into the validity of a verdict or indictment, a juror is not competent to testify as to any matter which essentially inheres in the verdict or indictment.

See also McAllister Hotel, Inc. v. Porte, 123 So.2d 339 (Fla.1960), and Linsley v. State, 88 Fla. 135, 101 So. 273 (1924). That leaves only the testimony of defense counsel and appellant has provided no compelling reason to this Court why that testimony was not available at the time appellant filed his first 3.850 motion. Furthermore, the issue of the presentation of mitigating evidence under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), was addressed by this Court in Songer II on rehearing where we held that neither the wording of section 921.141 nor our previous decisions precluded the introduction of nonstatutory mitigating evidence. 365 So.2d at 700. The law in Florida is that a trial court is not obligated to entertain a successive 3.850 motion which raises grounds previously raised and disposed of on the merits in a prior 3.850 proceeding. McCrae v. State, 437 So.2d 1388 (Fla.1983). Appellant’s claim that he has been subjected to cruel and unusual punishment by his eleven-year stay on death row and his three trips to the death watch is without merit. Thus, we hold the trial judge did not err in the denying appellant’s motion to vacate.

In conclusion, we affirm the order of the trial court denying appellant’s motion to vacate judgment and sentence. Appellant’s motion for a stay of execution is also denied.

It is so ordered.

BOYD, C.J., and OVERTON, ALDERMAN, MCDONALD, EHRLICH and SHAW, JJ., concur.


author: JORGENSON, Judge. PER CURIAM. PER CURIAM. DANIEL S. PEARSON, Judge,

text:
    DADE COUNTY, a political subdivision of the State of Florida, and Public Health Trust of Dade County, Florida, an agency and instrumentality of Dade County, Florida, Appellants, v. AMERICAN HOSPITAL OF MIAMI, INC., a Florida corporation, Appellee.
    No. 83-1445.
    District Court of Appeal of Florida, Third District.
    April 3, 1984.
    Rehearing and Rehearing En Banc Denied Feb. 26, 1985.
    Robert A. Ginsburg, Dade County Atty., and Robert L. Blake, Asst. County Atty., for appellants.
    Steel, Hector & Davis, Miami, Kaye, Scholer, Fierman, Hays & Handler and Paul Curran, New York City, for appellee.
    Thomson, Zeder, Bohrer, Werth, Adorno & Razook and Jerold I. Budney, Miami, for City of Homestead as amicus curiae.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   JORGENSON, Judge.

Dade County appeals a partial summary declaratory judgment wherein the trial court found that Dade County bears a legal and financial duty to provide post-emergency care to indigent residents of Dade County and to accept promptly from American Hospital such patients once their emergency medical condition has been stabilized. We have jurisdiction, see Fla.R.App.P. 9.130(a)(3)(C)(iv), and affirm.

Article XIII, section 3 of the 1885 Constitution of the State of Florida provides that “[t]he respective counties of the State shall provide in the manner prescribed by law, for those of the inhabitants who by reason of age, infirmity or misfortune, may have claims upon the aid and sympathy of society ... ,” see also Cleary v. Dade County, 160 Fla. 892, 897, 37 So.2d 248, 251 (1948) (Article XIII, section 3 of the 1885 Constitution gives Dade County “both the authority and the duty to care for the indigent, sick and poor in all of Dade County .... ”), and this constitutional requirement remains in full effect, albeit at a statutory level, by operation of article XII, section 10 of the 1968 Constitution of the State of Florida. Section 154.302, Florida Statutes (1981), provides that “[i]t is the intent of the Legislature to place the ultimate financial obligation for the medical treatment of indigents on the county in which the indigent resides, for all those costs not fully reimbursed by other governmental programs or third-party payors.” See § 155.16, Fla. Stat. (1981).

Affirmed.

On Motion for Rehearing

PER CURIAM.

Appellants’ motion for rehearing is denied.

Before SCHWARTZ, C.J., and BARK-DULL, HENDRY, HUBBART, NESBITT, BASKIN, DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.

On Motion for Rehearing En Banc

PER CURIAM.

Motion for rehearing en banc was granted to consider the possible conflict between the panel decision and the prior decision of this court in Dade County v. Hospital Affiliates International, Inc., 378 So.2d 43 (Fla. 3d DCA 1979) (see n. 5 at 46). Fla.R. App.P. 9.331(a), (c). After argument, we find no conflict and therefore deny the motion for rehearing en banc.

Because we deem it to be of great public importance, Fla.R.App.P. 9.030(a)(2)(A)(v), we certify the following question to the Supreme Court of Florida:

Does a county bear a legal and financial duty to provide post-emergency medical care to indigent residents of the county? SCHWARTZ, Chief Judge (dissenting).

In my judgment, the panel’s sweeping conclusion that every Florida county — presumably including those which do not maintain hospitals or other medical facilities — is responsible for the hospital expenses of its indigent residents is directly contrary to a prior decision of this court, and, more important, is totally unjustified by the statutory provisions cited by the panel or by any other enactment of the legislature.

In Dade County v. Hospital Affiliates International, Inc., 378 So.2d 43 (Fla. 3d DCA 1979), we squarely held that because “otherwise indigent” patients were not county prisoners at the time of their treatment, there was no basis for holding Dade County liable for their hospital expenses. At 378 So.2d 46, n. 5, the court specifically rejected the contention that, as a matter of “public policy,” we should extend the county’s responsibility “beyond that imposed by Sec. 951.23 [relating to county prisoners].” I do not believe that the present decision can be reconciled with that one.

Nor do the provisions invoked in the panel opinion indicate that Hospital Affiliates was incorrectly decided. It seems clear, for example, that article XIII, section 3 of the 1885 Constitution, which in essence became an ordinary statute by virtue of article XII, section 10, Florida Constitution (1968), see Kirk v. Brantley, 228 So.2d 278 (Fla.1969); In re Advisory Opinion to the Governor, 225 So.2d 512 (Fla.1969), was repealed by numerous subsequent reviser’s bills, none of which preserved it as a part of the Florida statutes. Sec. 11.2422, Fla. Stat. (1981); Shuman v. State, 358 So.2d 1333 (Fla.1978).

Even if this is not the case and article XIII, section 3 remains extant, it nonetheless may not be given the effect ascribed to it by the court. The section states only that the counties shall act “in the manner prescribed by law;” it is thus not self-executing and requires specific supporting and enforcing legislation. Lewis v. Florida State Board of Health, 143 So.2d 867 (Fla. 1st DCA 1962), cert. denied, 149 So.2d 41 (Fla.1963); Oak Park Federal Savings & Loan Association v. Village of Oak Park, 54 Ill.2d 200, 296 N.E.2d 344 (1973). When Cleary v. Dade County, 160 Fla. 892, 37 So.2d 248 (1948), cited by the court, was decided, such a statute indeed existed as section 125.01(4), Florida Statutes, which provided that one of the duties of the Board of County Commissioners was “[t]o have care and provide for the poor and indigent people of the county.” On this basis, the Supreme Court held in Cleary:

[The county] has both the authority and the duty to care for the indigent, sick and poor in all of Dade County by virtue of the statute above referred to and by the provisions of Section 3 of Article XIII of the Constitution of Florida, F.S.A. ...

37 So.2d at 251. But section 125.01(4) was deleted in 1959 and replaced by what is now section 125.01, Florida Statutes (1981). This section grants counties powers, but imposes no duties. Insofar as is here relevant, the statute provides:

125.01 Powers and duties.—
(1) The legislative and governing body of a county shall have the power to carry on county government. To the extent not inconsistent with general or special law, this power shall include, but shall not be restricted to, the power to:
⅝ ⅜ ⅝ ⅝ ⅜: ⅝:
(e) Provide hospitals, ambulance service, and health and welfare programs.

The significance of the distinction was made clear by the Supreme Court itself in Cleary in dealing with the status of the City of Miami at that time:

This section of the charter empowers or authorizes the City “to provide for the care, support and maintenance * * * of sick, aged, insane or indigent persons” and does not expressly make same an obligation or duty of the City.

37 So.2d at 251. The present state of the statutory law with respect to Dade County — and every other — is identical. Even assuming their viability, there is no enabling legislation enforcing the precatory provisions of article XIII, section 3 of the 1885 Constitution, and thus no basis for imposing such a duty on the County.

The other statutes upon which the panel relies may be briefly disposed of. The expression of intent recited in section 154.-302, Florida Statutes (1981) must be read in the context of the entire chapter, which deals only with the responsibility, under certain limited circumstances, of the county of an indigent’s residence for medical care rendered in another county. See, St. Mary’s Hospital v. Okeechobee County Board of County Commissioners, 442 So.2d 1044 (Fla. 4th DCA 1983); Shands Teaching Hospital & Clinics of University of Florida v. Council of City of Jackson ville, 398 So.2d 907 (Fla. 1st DCA 1981); Tallahassee Memorial Regional Medical Center v. Lewis, 399 So.2d 106 (Fla. 1st DCA 1981). The quotation at p. 233 thus expresses the legislative policy only that, in that situation, the county where the indigent lives should bear the financial burden. It has nothing whatever to do with a supposed obligation by all counties to care for all of their resident indigents.

Finally, section 155.16, Florida Statutes (1981) is part of Chapter 155, which does not deal with county hospitals in general, or public health trust hospitals like Dade County’s (which are governed by Chapter 154) in particular, at all. See 1973 Op.Att’y Gen. Fla. 073-41 (November 26, 1973). And section 155.03 in any case expressly provides that “nothing herein shall require the board of county commissioners to expend any funds of the county in the maintenance of such hospital or the administration of such trust.”

Beyond all this, it is simply incomprehensible that the legislature could have disposed of the immensely complex political, societal, technical and financial problems and interrelationships involved in the provision of health care to the indigent by placing the entire burden of doing so upon our counties in two or three lines of off-handedly-considered legislation. The result of the majority’s having concluded otherwise will be, I suppose, to require the courts to undertake what are the quintessential^ legislative, executive and administrative tasks of writing the contents and supporting regulations of the Little Medicaid Bill judicially enacted by the Third District Court of Appeal. We do not have and should not have arrogated to ourselves the power to do any such thing. I would vacate the panel opinion and reverse the order below.

NESBITT, DANIEL S. PEARSON and FERGUSON, JJ, concur.

DANIEL S. PEARSON, Judge,

dissenting.

Judge Schwartz’s dissenting opinion quite clearly demonstrates that the legal duty of the County to provide and pay for medical care for its indigent residents is nowhere to be found in any statute or other writing referred to in the majority opinion. Since that is the case, I suspect that the unstated premise of the majority’s holding is that no legislation imposing this duty is required, either because the duty was recognized at common law or, if not, because the duty should be recognized by us, the court. The premise is wrong.

Under the common law, no body politic is legally obligated to provide for its indigents; any obligation to so provide must come from legislation. Mandan Deaconess Hospital v. Sioux County, 63 N.D. 538, 248 N.W. 924 (1933); St. Luke’s Hospital Ass’n v. Grand Forks County, 8 N.D. 241, 77 N.W. 598 (1898); Roane v. Hutchinson County, 40 S.D. 297, 167 N.W. 168 (1918); Hamlin County v. Clark County, 1 S.D. 131, 45 N.W. 329 (1890); Patrick v. Town of Baldwin, 109 Wis. 342, 85 N.W. 274 (1901). See Carthaus v. County of Ozaukee, 236 Wis. 438, 295 N.W. 678 (1941) (liability of towns to support poor persons is founded upon and limited by statute, and it is not to be enlarged or modified by any supposed moral obligation); Willacy County v. Valley Baptist Hospital, 29 S.W.2d 456 (Tex.Civ.App.1930) (same). Thus,

“while there is a strong moral obligation resting upon organized society to relieve all poor persons in its midst standing in need thereof, there is no legal obligation to do so in the absence of a statute creating it, and ... the courts cannot go further than the legislative will has been expressed. To what extent, under what circumstances, at what place and by what agencies poor persons shall be relieved at the expense of the public, are all purely legislative questions.” Patrick v. Town of Baldwin, 85 N.W. at 276.

The majority holding that the expense of post-emergency care to indigent residents must be borne by the public through the County, no matter how well intended, is, in my view, impermissible judicial legislation.

I would reverse the judgment below and direct the entry of judgment in favor of the County.

SCHWARTZ, C.J., and NESBITT and FERGUSON, JJ., concur.

      .The appealed partial summary judgment provides:
      1. Plaintiffs motion for partial summary judgment is hereby granted on the grounds stated therein. The rights, status and relations of the parties are hereby declared and adjudicated to the extent prescribed herein.
      2. Defendants own and operate Jackson Memorial Hospital, a county hospital financed by ad valorem taxes, federal and state funds. Defendants bear a legal duty and the financial responsibility to provide medical care for qualified indigent residents of Dade County.
      3. Plaintiff owns and operates a private hospital which pays Dade County ad valorem taxes, and- which receives no tax funds or financial assistance from federal, state or local governments or agencies. The operation of the plaintiff hospital is dependent solely on revenues received from its patients or their insurers. Plaintiff bears no legal duty or financial responsibility to provide medical care for indigents, except to provide treatment for any emergency medical condition of indigents brought to the emergency room of the plaintiff hospital, as prescribed by § 395.0143, Fla. Stat. (Supp.1982), and § 401.45(1), Fla.Stat. (Supp.1982).
      4.As between the parties to this action, defendants bear a legal duty and the financial responsibility to provide post-emergency care to indigent residents of Dade County after their emergency medical condition has been stabilized, when determined by the attending physician, and to promptly accept from plaintiff the transfer of indigent patients whose emergency medical condition has been stabilized.
      5. The Court retains jurisdiction to adjudicate the rights and liabilities of the parties in respect to the claims for supplemental relief asserted by plaintiff in its complaint, which are not adjudicated by this partial summary judgment.
      6. The declaration of rights, status and relations herein made is applicable only to the parties herein under the circumstances presented in this case.

      . Although section 11.2422, Florida Statutes (1981), repeals all statutes not included in Florida Statutes 1981, it expressly does not repeal statutes "recognized and continued in force by reference therein.” Florida Statutes 1981 includes the constitution, see § 11.242(4)(b), Fla. Stat. (1981), which contains the provision which recognizes and continues in force article XIII, section 3 of the 1885 Constitution.

      . As we see it, the legislative intent announced in Section 154.302, Florida Statutes (1981), is basically repeated in the first sentence of Section 154.306, Florida Statutes (1981). It is immediately followed by the limitations in question. Thus we hold that the home county is responsible for all charges with the limitation or cap found in the second sentence of Section 154.306, Florida Statutes (1981), subject further to the exceptions found in the third sentence of Section 154.306, Florida Statutes (1981). The third sentence provides two circumstances. First, the home county will not be responsible for the care of its indigents in a regional hospital if the services rendered were available locally. This is not applicable to the facts of this case since the needed St. Mary’s services were not available in Okeechobee. Second, this exception is qualified if the services rendered are of an emergency nature in which case the home county would be responsible for payment.
      442 So.2d at 1046.

      .Chapter 73-102, Laws of Florida [154.07-154.-12, F.S.], authorizes the governing body of each county to create a governmental unit known as a public health trust ... A Ch. 155, F.S., hospital is owned by the county as a political subdivision, but it is not operated and governed or controlled by the governing body of the county. A board of trustees, appointed by the governor pursuant to 155.06 is responsible for the operation, maintenance, and governance of a Ch. 155 hospital. An inspection of the preamble to Ch. 73.102, supra, forecloses the possibility that the legislature intended a Ch. 155 hospital to be included within 2(a), Ch. 73.102 [154.08(1), F.S.], as a "designated facility.” The preamble, which clearly states in the first sentence that "[wjhereas there are counties of this state which through their governing bodies own, operate and govern public health care facilities ...”, precludes the possibility of including a Ch. 155 hospital, which is not owned, operated, and governed by a board of county commissioners, within those designated healthcare facilities which may be transferred to the public health trust. Thus, the only healthcare facilities intended by the legislature to be designated facilities, and hence transferable, are those which are actually owned, operated, and governed by the board of county commissioners.

      . That the legislature did not think it had done so is demonstrated by its enactment of the Public Medical Assistance Act, sec. 154.32 et seq., Fla.Stat. (1984), which dealt extensively with the problem and which is completely inconsistent with the thought that counties have already been made entirely liable for indigent hospital care.

      . The county has suggested — and I see no reason to disagree — that any or all of some 25 different and difficult issues, none of them properly resolvable in a judicial setting, have been created by the holding in this case. The following are a representative sample:
      (a) Must the Public Health Trust reject all paying patients, leaving all of its beds for indigents in light of section 154.11 allowing each trust to set its own rates and charges?
      (b) To what extent would Dade County be financially responsible to each entity or person treating indigents?
      (c) Would podiatrists, naturopaths, chiropractors, osteopaths or optometrists be entitled to the same rate of reimbursement as other medical practitioners?
      (d) If a patient who is not an indigent but incapable of paying is brought to the Public Health Trust needing emergency care, and is treated and stabilized but needs further treatment, must the Public Health Trust transfer that patient to another hospital because it subjects itself to a lawsuit for retaining non-indigent patients?
      (e) Out of what fund must Dade County pay for such medical expenses?
      (f) In the case of catastrophic illnesses, is there a limitation or cap on the amount hospitals may bill the County?
      (g) If raising taxes is needed to appropriate more funds to pay for indigent medical care, is it legally permissible for the lower Court to compel Dade County to raise taxes, notwithstanding the Supreme Court’s ruling that only the Board of County Commissioners has the authority consistent with the Florida Constitution to decide the millage rate? See Board of County Commissioners v. Wilson, 386 So.2d 556 (Fla.1980).
      (h) Who are indigents and who decides the various classifications of indigency?
      (i) How long must indigents reside in Dade County before being eligible for free medical service, and if a citizen who did not have money to pay for medical needs moved from another state or county to Dade County, and immediately was admitted into a hospital, would that hospital be eligible for reimbursement?
      (j) Would Dade County be obligated to reimburse private hospitals and physicians for costs only, or would the hospital be entitled to overhead and profit?

      . I also have grave doubts about the standing of the appellee to maintain this action. Although it presumably sues as a subrogee of the indigents it has treated, it also insists that, as a private hospital, it has no obligation whatever to treat any non-emergency patient it does not wish to care for. It would appear, therefore, that it was acting as a mere volunteer in providing the services in question and would therefore not be entitled to invoke the doctrine of subro-gation. 12 Fla.Jur.2d Contribution, Indemnity & Subrogation, § 20 (1979).


author: PER CURIAM. BARFIELD, Judge, PER CURIAM. WENTWORTH, Judge,

text:
    Troy ROWLS, Petitioner, v. The Honorable John E. CRUSOE, As Acting Circuit Judge of the Second Judicial Circuit of Florida, Respondent.
    No. AX-184.
    District Court of Appeal of Florida, First District.
    Aug. 22, 1984.
    On Rehearing Nov. 16, 1984.
    Armando Garcia, Tallahassee, for petitioner.
    Susan Thompson, of Boyd, Thompson & Williams, P.A., Tallahassee, for amicus curiae.
    Jim Smith, Atty. Gen., and Kent A. Zaiser, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Petitioner seeks a writ of prohibition to prevent respondent from proceeding in a child support enforcement action. Petitioner contends that respondent county judge does not have jurisdiction to hear the case because Administrative Order 84-7 is invalid. The order directs that certain child support enforcement proceedings “shall be brought before County Judges Richard L. Hood ... Charles D. McClure, Hal S. McClamma and John E. Crusoe ...” and provides that “[t]he County Judges shall enter such orders and directives for the enforcement of the orders of the Circuit Court ... which shall be deemed by the County Judges to be lawful and proper

Petitioner contends that the administrative order is not a valid assignment of county judges to the circuit court bench, as authorized by Article V, Section 2(b), Florida Constitution, and Florida Rule of Judicial Administration 2.050(b)(4). Article V, Section 2(b) provides:

[The chief justice] shall have the power to ... delegate to a chief judge of a judicial circuit the power to assign judges for duty in his respective circuit.

Rule 2.050(b)(4) provides in part:

The chief judge may assign any judge to temporary service for which the judge is qualified in any court in the same circuit.

Petitioner contends that the administrative order does not assign county judges to the circuit court, but rather assigns a class of cases to the county court, and thus violates Article V, Section 6(b), Florida Constitution, which states that the jurisdiction of the county court shall be as provided by general law. Respondent and the Department of Health and Rehabilitative Services (HRS), which appeared as amicus curiae, contend that the administrative order is a valid assignment of the named county judges to the circuit court pursuant to Rule 2.050(b)(4). HRS contends that there is no difference in practical effect between the assigning of county court judges to hear circuit court cases and the assigning of circuit court cases to county judges.

Although perhaps not a model to be followed, we think that the administrative order, in effect, assigns the named county judges to serve as circuit judges in certain child support enforcement cases. Martinez v. Demers, 412 So.2d 5 (Fla. 2d DCA 1981), cited by petitioner in support of his argument, is distinguishable. In that case, an administrative order was entered by the chief judge which provided that “all petitions for sanity inquisitions in misdemeanor cases shall be brought before the Criminal Administrator for determination.” The criminal administrator was a circuit court judge. The Second District held that the order was invalid, stating:

[W]e do not agree that Rule 2.050(b)(4) is authority for giving a portion of all misdemeanor cases (such as motions for sanity inquisitions) to a circuit judge. The rule contemplates assignment for “temporary service”. The administrative order does not assign a particular judge for a limited amount of time.

We find that the administrative order in the instant case does not contain the weaknesses of the administrative order under review in Martinez. In Martinez, the order was not considered a valid assignment of a circuit judge to the county court because: (1) the order did not assign any particular judge, and (2) the order was not for a limited period of time. These deficiencies do not exist in Administrative Order 84-7. The four specific county judges assigned to the circuit court are named, and the order is of limited duration; it automatically expires on September 1, 1984.

Petitioner argues that the order is not “temporary” because the assignments are for a six-month period. Petitioner asserts that the word “temporary” has meaning only when considered in relation to or in regard to a larger time. In relation to the “temporary” assignment of county judges to the circuit court, petitioner contends that the larger time period is the four-year term of office for county judges. He thus concludes that a six-month assignment cannot be temporary because it is equal to one-eighth of a county judge’s term. Further, petitioner suggests that this administrative order should be considered together with the prior administrative order, which assigned the same judges to act on the same type of cases, and the “temporary” assignment becomes a two-year assignment, one-half of a county judge’s term.

Although we agree with petitioner that an order of assignment could provide for a termination date and yet not be temporary, we believe that a six-month assignment falls within the term temporary as contemplated by Rule 2.050(b)(4). Further, because . there is nothing in the rule that prohibits successive orders of appointment, we do not think that the duration of prior assignments should be considered in determining whether the current assignment is temporary.

Therefore, we hold that Administrative Order 84-7 constitutes a valid assignment of the named county judges to the circuit court for the purposes mentioned, and we deny the petition for writ of prohibition. However,, we find that the issues presented by this petition are of great public importance, and therefore certify the following question:

Does Administrative Order 84-7 constitute a valid assignment of the named county judges to temporary service in the circuit court pursuant to Rule 2.050(b)(4), Fla.R.Jud.Admin.?

MILLS and WENTWORTH, JJ., concur.

BARFIELD, J., dissents with opinion.

APPENDIX

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT OF FLORIDA

OFFICE OF THE CHIEF JUDGE

ADMINISTRATIVE ORDER NO. 84-7

RE: Enforcement of Court-Ordered Child Support Cases

From the date of entry hereof, all hearings for enforcement of child support court orders, which have been entered by the Circuit Court of the Second Judicial Circuit of Florida and which have directed support payments to be made to and through the Child Support Section of the Office of the Sheriff of Leon County, Florida, shall be brought before County Judges Richard L. Hood of Gadsden County, Florida, and Charles D. McClure, Hal S. McClamma and John E. Crusoe of Leon County, Florida. Said County Judges shall furnish to the Child Support Section the days and hours when they shall be available for such hearings, and the personnel of the Child Support Section shall schedule the cases before the several judges and shall give appropriate notice thereof. The County Judges shall enter such orders and directives for the enforcement of the orders of the Circuit Court concerning child support, which shall be deemed by the County Judges to be lawful and proper and which shall be enforced accordingly. This order shall supersede Administrative Order No. 82-12 on the effective date hereof and shall expire without further order of this court on September 1, 1984.

Done and ordered in chambers at Tallahassee, Leon County, Florida, this 24th day of February, 1984.

Ben C. Willis

BEN C. WILLIS, CHIEF JUDGE

cc: The Honorable Richard L. Hood

The Honorable Charles D. McClure

The Honorable Hal S. McClamma

The Honorable John E. Crusoe

The Honorable Dozier Allen

BARFIELD, Judge,

dissenting.

I dissent. The administrative order is an abdication of circuit court jurisdiction over child support enforcement. It is not a temporary assignment of a county judge to a circuit court position, but a conferring of jurisdiction on the county court. It is not “temporary”. The six-month provision of the current order must be coupled with the record evidence of the previous year-and-a-half continuous assignment, which leads to the inescapable conclusion that this is nothing more than a circumvention of the rules and jurisdiction of the court.

The writ should issue. The county judges should be prohibited from proceeding under the invalid rule.

ON MOTION FOR REHEARING GRANTED

PER CURIAM.

By way of a motion for rehearing, petitioner has brought to our attention the fact that Administrative Order 84-7, which was upheld in our original opinion, has been superseded by Administrative Order 84-20, a copy of which is attached as an appendix to this opinion. The new order is substantively identical to the two previous orders, although it adds an additional county court judge to the list of those authorized to enforce child support orders, and adds six months to the authorized time period. Since the substance of the new rule remains unchanged, we deem the pleadings in this cause amended, pursuant to Rule 9.040(d), Fla.R.App.P., to include a challenge to Administrative Order 84-20.

The promulgation of 84-20 has made evident the correctness of Judge Barfield’s dissent to the original opinion. By issuing successive orders, the provisions contained therein have been, and will be, in effect for two-and-a-half years if the most recent order is upheld. Thus, we now find that the orders are an abdication of circuit court jurisdiction over child support enforcement, not a temporary assignment of a county judge to a circuit court position. As such, the orders are an attempt to confer jurisdiction on the county courts over matters which they have no constitutional authority to decide. Therefore, the petition for writ of prohibition is granted and the county judges are prohibited from proceeding under order 84-20 which we find to be invalid. However, we certify the following question as being one of great public importance:

Does Administrative Order 84-20 constitute a valid assignment of the named county judges to temporary service in the circuit court pursuant to Rule 2.050(b)(4), Fla.R.Jud.Admin.

MILLS and BARFIELD, JJ., concur.

WENTWORTH, J., concurs and dissents with written opinion.

APPENDIX

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT OF FLORIDA

OFFICE OF THE CHIEF JUDGE

ADMINISTRATIVE ORDER NO. 84-20

IN RE: Enforcement of Court-Ordered Child Support Cases

From the date of entry hereof, all hearings for enforcement of child support court orders, which have been entered by the Circuit Court of the Second Judicial Circuit of Florida and which have directed support payments to be made to and through the Child Support Section of the Office of the Sheriff of Leon County, Florida, shall be brought before County Judges Richard L. Hood of Gadsden County, Florida, and Felix A. Johnston, Jr. of Jefferson County, Florida, and Charles D. McClure, Hal S. McClamma and John E. Crusoe of Leon County, Florida. Said County Judges shall furnish to the Child Support Section the days and hours when they shall be available for such hearings, and the personnel of the Child Support Section shall schedule the eases before the several judges and shall give appropriate notice thereof. The County Judges shall enter such orders and directives for the enforcement of the orders of the Circuit Court concerning child support, which shall be deemed by the County Judges to be lawful and proper and

which shall be enforced accordingly. This order shall supersede Administrative Order No. 84-7 effective September 1, 1984 and shall expire without further order of this court on February 28, 1985.

DONE AND ORDERED in Chambers at Tallahassee, Leon County, Florida, this 13th day of August, 1984.

/s/ Ben C. Willis

BEN C. WILLIS,

CHIEF JUDGE

cc: The Honorable Richard L. Hood

The Honorable Felix A. Johnston, Jr.

The Honorable Charles D. McClure

The Honorable Hal S. McClamma

The Honorable John E. Crusoe

Sheriff of Leon County, Child Support Unit

Court Administrator

WENTWORTH, Judge,

concurring and dissenting.

I agree with the decision to amend the pleadings to include a challenge to order 84-20. However, I would adhere to the original opinion particularly in that it (1) characterized the six month assignment as falling within the term “temporary” in Rule 3.050(b)(4), and (2) noted that there is nothing in the rule that prohibits successive orders of appointment. In my opinion, the promulgation of the new order should have no impact on our original holding.

      . A copy of Administrative Order 84-7 is attached to this opinion as an appendix.


author: ORFINGER, Judge.

text:
    Timothy S. BRUMLIK, Appellant, v. CATALYST INC., Appellee.
    No. 84-961.
    District Court of Appeal of Florida, Fifth District.
    Sept. 6, 1984.

      Denise G. Morris, of Burton L. Brugge-man, P.A., Orlando, for appellant.
    W. Gregory Lockeby, of Walker, Buck-master, Miller & Ketcham, P.A., Orlando, for appellee.
   ON MOTION TO DISMISS APPEAL

ORFINGER, Judge.

Appellee moves to dismiss this appeal, contending that the notice of appeal was filed more than 30 days from rendition of the final judgment.

Appellant filed a timely motion for rehearing of the final judgment entered after a non-jury trial, but before that motion was disposed of, filed his notice of appeal. The notice of appeal was filed more than thirty days from the filing of the final judgment.

Appellee contends that this court has no jurisdiction because the filing of the notice of appeal constituted an abandonment of the undisposed of motion for rehearing; thus, says appellee, the appeal was filed more than thirty days after rendition of the final judgment.

For the reasons expressed in Bianco v. Bianco, 383 So.2d 1120, 1121 (Fla. 4th DCA 1980) we deny the motion to dismiss. While we agree that the filing of a notice of appeal prior to the determination of an otherwise timely filed motion for rehearing constitutes an abandonment of the motion for rehearing, we cannot agree with appellee that the tolling effect of the motion is also abandoned. We hold that pursuant to Rule 9.020(g), Fla.R.App.P. because the filing of an authorized and timely motion for rehearing delays rendition of the final judgment until the motion is disposed of, the abandonment of the motion by the filing of the notice of appeal constitutes a “disposition.” See also, Winn Dixie Stores, Inc. v. Codomo, 372 So.2d 952 (Fla. 3d DCA 1979). Contra, Bannister v. Hart, 144 So.2d 853 (Fla. 2d DCA 1962).

MOTION DENIED.

FRANK D. UPCHURCH, JR. and SHARP, JJ., concur.


author: PER CURIAM. PER CURIAM.

text:
    Henry Charles ROSS, Appellant, v. STATE of Florida, Appellee.
    No. 83-2137.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1984.
    Rehearing Denied March 6, 1985.

      Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

In view of the State’s concession, we reverse and remand for correction of the sentence to reflect concurrent mandatory minimum sentences for the two sexual batteries and consecutive mandatory minimum sentences for the robbery and kidnapping. Appellant need not be present. The judgment and sentences are affirmed in all other respects.

GLICKSTEIN, WALDEN and BARK-ETT, JJ., concur.

ON REHEARING

PER CURIAM.

Appellant’s motion for rehearing is denied. However, we certify, pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v), the following question as one of great public importance:

WHETHER THE CRIMES FOR WHICH THE DEFENDANT WAS SENTENCED TO CONSECUTIVE THREE-YEAR MINIMUM TERMS PURSUANT TO SECTION 775.087(2), FLORIDA STATUTES, WERE “OFFENSES [WHICH AROSE] FROM SEPARATE INCIDENTS OCCURRING AT SEPARATE TIMES AND PLACES” WITHIN THE MEANING OF THE RULE ANNOUNCED IN PALMER V. STATE, 438 So.2d 1 (FLA.1983).

This identical question has been certified to the supreme court in Wilson v. State, 449 So.2d 822 (Fla. 1st DCA 1984), and in Ames v. State, 449 So.2d 826 (Fla. 1st DCA 1984).

GLICKSTEIN, WALDEN and BARK-ETT, JJ., concur.