text:
    PUBLIC EMPLOYEES RELATIONS COMMISSION, Petitioner, v. Patrick J. KENNEDY, Respondent.
    No. 63592.
    Supreme Court of Florida.
    June 7, 1984.
    Phillip P. Quaschnick, General Counsel; Vernon Townes Grizzard and Thomas W. Young III, Asst. General Counsels and Cynthia D. Morani, Staff Counsel, Public Employees Relations Commission, Tallahassee, for petitioner.
    Charles R. Fawsett of Rock, Fawsett & Elliott, Orlando, for respondent.
   PER CURIAM.

The Fifth District Court of Appeal issued an unpublished order which held “that the Public Employees Relations Commission is not, and because it is the forum from which this appeal is sought will not be, a party to this appeal.” We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. The order under review is quashed on the authority of Public Employees Relations Commission v. City of Orlando, 452 So.2d 517 (Fla.1984), where we held that PERC is a proper party in proceedings to review PERC’s own orders.

It is so ordered.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Omar BLANCO, Appellant, v. STATE of Florida, Appellee.
    Nos. 62371, 62598.
    Supreme Court of Florida.
    June 7, 1984.
    Rehearing Denied July 26, 1984.

      Michael D. Gelety, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen. and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The appellant, Omar Blanco, appeals his convictions for first-degree murder and armed burglary and the imposition of the death sentence and a separate sentence for burglary. We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution.

Fourteen-year-old Thalia Vezos testified that at approximately 11 p.m. on January 14, 1982, she was in her bed reading at her home in Ft. Lauderdale when she saw a man standing in the hallway holding a gun and carrying a brown wallet-type object under his arm. The intruder indicated that Thalia was to keep quiet. He then cut the wires to her telephone and left the room. Thalia’s uncle, John Ryan, appeared in the hall and tried to take the gun from the intruder. Ryan was shot in the scuffle and landed on top of his niece on the bed. The intruder shot Ryan six more times. The intruder then fled. Thalia ran next door to the home of the Wengatzes, where the police were called.

The police arrived at the crime scene at 11:14 p.m. Officer Bull went next door and spoke to Thalia, who described the intruder as a Latin male, between 5'8" to 5'10", 180 to 190 pounds, wearing a gray or light green jogging suit, with dark curly hair. Officer Bull sent the description to a dispatcher at approximately 11:24 p.m. A man who lived across the street, George Abdeni, came forward with a report that he had heard shots and screaming and had seen the profile of a person in a gray jogging suit heading east from the Vezos property. This information was contained in a police BOLO that included the fact that the suspect was proceeding eastward.

The BOLO as dispatched described the suspect as a Latin male about 5'10" in height with a dark complexion, black curly hair, some kind of mustache, wearing a gray or light green jogging suit, and running in an eastwardly direction. Officer Price, who was in the area, positioned his car approximately one and a half miles from the scene in a driving lane facing east on 30th Street next to North A1A to watch for someone fitting the BOLO description. At approximately 11:57 p.m. he saw appellant riding a white bicycle on the sidewalk southbound on A1A and determined that appellant fit the description on the BOLO except for his pants, which at first appeared to be heavy corduroy. He also had full facial hair. Officer Price requested more information. He then followed appellant for approximately one-tenth of a mile before stopping him. The first thing the officer noticed when he got within three to four yards of appellant was that the gray pants were the same material as the top of the sweatsuit. Officer Price requested a backup unit. He asked appellant if he possessed a gun. Appellant replied, “No In-gles.” The officer frisked appellant, but found nothing but a necklace and watch which appellant was wearing. When the backup unit arrived, the officers handcuffed appellant and took him to the murder scene. Mr. Adbeni identified appellant as having the same profile and jogging suit as the figure he had seen earlier. Appellant was then formally arrested.

A man’s purse containing appellant’s ID papers and a watch belonging to Thalia Vezos was found near the door to Thalia’s bedroom.

On the day following the murder, Thalia Vezos identified appellant in a line-up as the perpetrator. The Broward County Grand Jury indicted appellant on February 2, 1982, for first-degree premeditated murder and for armed burglary. Trial began on June 1, 1982, and the jury found appellant guilty on both counts. In compliance with the jury’s recommended verdict, the trial judge sentenced appellant to death for the murder. He was sentenced to 75 years for the armed burglary.

Appellant first argues that the trial court erred in failing to suppress evidence derived from appellant’s arrest in that the information Officer Price received over the BOLO did not furnish sufficient grounds to justify the initial investigative stop. Appellant further argues that, regardless of the legality of the initial stop, the de facto arrest was illegal because there was no probable cause to believe appellant had committed the murder. We disagree. The probable cause standard for a law enforcement officer to make a legal arrest is whether the officer has reasonable grounds to believe the person has committed a felony. The standard of conclusiveness and probability is less than that required to support a conviction. Shriner v. State, 386 So.2d 525 (Fla.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 829 (1981). We find that the description furnished Officer Price over the BOLO, coupled with the proximity in time and place to the scene of the crime, furnished reasonable grounds for the officer’s belief that appellant had committed the murder and rendered the arrest legal. The motion to suppress was properly denied. There were sufficient grounds for the arrest; ergo there were grounds for the stop.

Appellant next contends that the trial court erred in refusing to admit evidence of an armed robbery which had occurred two weeks before the murder in the present case and at a house that is back to back with the house where the murder occurred. The trial judge determined that the defense hypothesis that the evidence of the robbery would tend to show someone other than the accused committed the murder was speculative and irrelevant. We agree and find no abuse of discretion. Appellant’s theory is far-fetched and unsupported. Thalia did not recognize the photographs of any of the robbers and she positively identified appellant as the murderer of her uncle. Appellant has failed to present any reasonable theory upon which the admission of evidence of the robbery would have tended to exculpate him. A trial judge’s ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion. Booker v. State, 397 So.2d 910 (Fla.), cert. denied, 454 U.S. 957, 102 S.Ct. 493, 70 L.Ed.2d 261 (1981). The test of admissibility is relevancy. Johnson v. State, 130 So.2d 599 (Fla.1961). To be admissible, evidence must be both logically and legally relevant. Wolf v. State, 72 Fla. 572, 73 So. 740 (1917).

Appellant next argues that the trial court erred in making statements on the record in appellant’s absence to explain a ruling it had made on the legality of appellant’s arrest. In appellant’s presence the trial court had previously received testimony and heard arguments of counsel regarding appellant’s motions to suppress evidence based on the alleged illegality of the arrest. We find that under these circumstances the reading of statements into the record by the trial court did not constitute an essential stage of the trial mandating appellant’s presence. See Fla.R.Crim.P. 3.180.

Appellant argues that the trial court erred in allowing him to call witnesses against his trial counsel’s advice, thereby interfering with the presentation of his defense. Trial counsel explained several times to 'appellant that he considered it not to be in appellant’s best interests to call the witnesses, but appellant insisted. The record reflects, and appellant concedes in his brief, that he was told that the witnesses’ testimony would be detrimental to his case. The trial court finally ruled in favor of allowing appellant to present to the jury whatever evidence appellant felt was beneficial. Under these circumstances, the trial court did not err in allowing appellant to present witnesses. The ultimate decision is the defendant’s. Milligan v. State, 177 So.2d 75 (Fla. 2d DCA 1965).

Appellant contends that the trial court erred in denying his motion to suppress the identification testimony of George Abdeni and Thalia Vezos. The test for determining the legality of an out-of-court identification is:

(1) did the police employ any unnecessarily suggestive procedure in obtaining an out-of-court identification; (2) if so, considering all the circumstances, did the suggestive procedure give rise to a substantial likelihood of irreparable misiden-tification.

Grant v. State, 390 So.2d 341, 343 (Fla.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1987, 68 L.Ed.2d 303 (1981). In the case of Abdeni, a show-up identification procedure was used. A show-up is inherently suggestive in that a witness is presented with only one suspect for identification, but the procedure is not invalid if it did not give rise to a substantial likelihood of irreparable mis-identification under the totality of the circumstances. State v. Cromartie, 419 So.2d 757 (Fla. 1st DCA), petition dismissed, 422 So.2d 842 (Fla.1982). Further, we are mindful that “an identification made shortly after the crime is inherently more reliable than a later identification in court.” State v. Freber, 366 So.2d 426, 428 (Fla.1978). We agree with the trial court that no unnecessarily suggestive procedure was employed in this instance. When Abdeni made his identification at the scene, he was identifying only the jogging suit and general profile of the person he had seen. Neither at the hearing on the motion to suppress nor at trial did Abdeni identify appellant as the person he had seen, specifying at both times that he had not seen the alleged assailant’s head. We find no error.

Regarding the testimony of Thalia Yezos, appellant argues that the line-up at which she identified appellant as the perpetrator was unnecessarily suggestive in that the other persons in the line-up were physically dissimilar to appellant, creating a substantial likelihood of misidentification. We do not agree with appellant. The record supports the trial court’s finding that the line-up was extremely fair and that Thalia identified appellant without any suggesta-bility. Appellant was number one in the line-up on the day following the murder, and the police had to restrain her from making an immediate identification. Thalia had ample opportunity to view the perpetrator at the time of the crime, when, according to her testimony, he was within her view for approximately ten minutes. We find under the totality of the circumstances that the out-of-court identification of appellant by Thalia was admissible, as was her in-court identification based on her ability to observe appellant at the crime scene. See Lecoin v. State, 418 So.2d 336 (Fla. 3d DCA 1982).

Appellant argues that the trial court erred in allowing the jury to hear certain statements he made to the police, which had been ordered suppressed because of Miranda violations. Appellant chose to take the stand, putting his credibility at issue and opening the door for the statements to be used to impeach his testimony. We held in Nowlin v. State, 346 So.2d 1020, 1024 (Fla.1977), that

whenever the state, in order to impeach a defendant’s credibility, chooses to present evidence of a defendant’s incriminating statements which are inconsistent with trial testimony of the defendant and which are inadmissible in the case-in-chief because of the failure of custodial officers to give Miranda warnings, the statements must be shown to be voluntary before they may be admitted.

The trial court in the present case found that appellant’s statements were freely and voluntarily made and were suppressed only because of the Miranda violation. We affirm the trial court in allowing the statements to be admitted for impeachment purposes.

We find no merit in appellant’s argument that the trial court erred in instructing the jury regarding burglary. The trial court read the Florida Standard Jury Instructions (Criminal, Vol. II, 1981). There was circumstantial evidence from which the jury could properly conclude that appellant entered the Vezos home with the intent to commit theft.

Appellant also argues that the jury was erroneously instructed on the unexplained possession of recently stolen property, because appellant had no recently stolen property on his person at the time of his arrest. This point has no merit. Thalia Vezos testified that appellant had a purse under his arm. The purse subsequently was found to contain Thalia’s wristwatch. There was therefore evidence which would allow the jury to find that appellant had had recently stolen property in his possession.

Appellant claims the trial court erred in sentencing him separately for the burglary, because the first-degree murder conviction was based on the felony murder theory, there being no premeditation. This argument is meritless. Appellant was indicted for premeditated murder, the jury was instructed on premeditated murder, and the evidence supported premeditated murder. It is not error to convict and sentence a defendant for both premeditated murder and burglary when both have been charged and the state has introduced sufficient evidence of premeditation to support the murder conviction even had the jury not returned the burglary conviction. Breedlove v. State, 413 So.2d 1, 8 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982).

Appellant also challenges the imposition of the death sentence. The trial court based the sentence upon a finding of four statutory aggravating factors and no mitigating factors. The factors of pecuniary gain and committing a capital felony during the commission of a burglary were considered as but one of the four aggravating factors. The other aggravating factors found by the trial court were that the defendant had previously been convicted of another felony involving the use of violence, that the crime was especially heinous, atrocious, or cruel, and that it was committed in a cold, calculated and premeditated manner.

We find no error in using burglary and pecuniary gain as one factor. Provence v. State, 337 So.2d 783 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977). The factor of the prior conviction was properly considered by the trial court. In the interim between the trial court’s sentencing order and oral argument before this Court, the prior conviction was reversed. Blanco v. State, 438 So.2d 404 (Fla. 4th DCA 1983). Recently appellant was reconvicted on March 14, 1984. To remand for resentencing under these circumstances would be pointless in light of the fact that the judge could again consider the conviction as an aggravating factor. We find no reversible error.

We find that the trial court erroneously applied the heinous, atrocious, and cruel factor to the circumstances of this murder. This factor applies only to “those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies — the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” State v. Dixon, 283 So.2d 1, 9 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). This factor was not shown beyond a reasonable doubt in the' present case. See e.g., Lewis v. State, 377 So.2d 640 (Fla.1979) and Kampff v. State, 371 So.2d 1007 (Fla.1979).

The cold, calculated and premeditated factor was likewise erroneously applied. Although there was evidence of premeditation sufficient to support a finding of premeditated murder, there was no showing of heightened premeditation beyond a reasonable doubt necessary to the proper application of this factor. A reasonable interpretation of the evidence is that appellant entered the dwelling with the intent to steal and was surprised by Ryan’s attempt to take the gun from him. The subsequent shots followed quickly and do not show any heightened premeditation, calculation, or planning. See Richardson v. State, 437 So.2d 1091 (Fla.1983). Compare Hill v. State, 422 So.2d 816 (Fla.1982), cert. denied, 460 U.S. 1017, 103 S.Ct. 1262, 75 L.Ed.2d 488 (1983).

The- trial court found no mitigating factors. The defense presented no evidence in mitigation, and specifically waived the mitigating circumstance of no significant history of prior criminal activity; the defense may reasonably have thought it would be a fruitless effort to present evidence as to this circumstance, having stipulated to the prior conviction.

The jury recommended imposition of the death sentence. The trial court found two valid aggravating factors. Where there are one or more valid aggravating factors that support a death sentence and no mitigating circumstances to weigh against the aggravating factors, deáth is presumed to be the appropriate penalty. White v. State, 446 So.2d 1031 (Fla.1984); Armstrong v. State, 399 So.2d 953 (Fla.1981); State v. Dixon. Moreover, we have compared this case with all past capital cases and have determined that the imposition of the death sentence in this case is not comparatively disproportionate. We find no error in the trial court’s imposition of the death sentence.

The convictions and sentences for first-degree murder and armed burglary are affirmed.

It is so ordered.

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


text:
    THE FLORIDA BAR, Petitioner, v. William KAUFMANN, Respondent.
    No. 63402.
    Supreme Court of Florida.
    June 7, 1984.

      William O.E. Henry, President, Lakeland, Gerald F. Richman, President-elect, Miami, John F. Harkness, Jr., Executive Director, Tallahassee, James P. Hahn, Chairman, Standing Committee on Unauthorized Practice of Law, Lakeland, and Catherine L. Dickson, UPL Counsel, Tallahassee, of The Florida Bar; and William J. Berger of Tew, Spittler, Berger & Bluestein, Coral Gables, for petitioner.
    Paul L. Backman, Hollywood, for respondent.
   PER CURIAM.

This cause is before us, pursuant to jurisdiction granted in article V, section 15, Florida Constitution, and article XVI of The Florida Bar Integration Rule, on the report and recommendation of a referee appointed by this Court concerning charges of unauthorized practice of law. That report and recommendation is not contested by either party, and we adopt it herewith in its entirety.

IT IS ORDERED AND ADJUDGED that:

1. The provisions of said Stipulation are approved and confirmed.

2. Respondent is permanently restrained and enjoined from conducting any activities which constitute the unauthorized practice of law including, without limitation, the following:

(a) Counselling clients about legal matters;

(b) appearing in Court or in proceedings which are part of the judicial process, whether in State or Federal Court;

(c) Counselling persons as to the advisability of their filing for protection under the United States Bankruptcy laws; and

(e) Attending any hearings or creditors’ meetings as the legal representative of any person who has filed under the Bankruptcy laws.

3. In the event Respondent engages in any of said conduct enjoined herein and has not been duly licensed to practice law in Florida, he shall be in indirect criminal contempt of the Supreme Court of the State of Florida for the unauthorized practice of law.

4. Respondent shall pay all reasonable costs of the Florida Bar in prosecuting this matter, such costs to be determined by this Court.

The Florida Bar has filed an affidavit of costs in the amount of $47.95. Respondent is hereby enjoined from the unauthorized practice of law and ordered to pay costs.

It is so ordered.

ADKINS, Acting C.J., and BOYD, OV-ERTON, EHRLICH and SHAW, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Jerome L. RUBINOWITZ, Respondent.
    No. 65179.
    Supreme Court of Florida.
    June 7, 1984.
    Susan V. Bloemendaal, Asst. Discipline Counsel, Tallahassee, for complainant.
    Adolf J. Galludo of Browne & Galludo, Patterson, N.J., for respondent.
   PER CURIAM.

This matter is before the Court on Respondent’s Petition for Leave to Resign Without Leave to Reapply for a Period of Five Years, pursuant to article XI, Rule 11.08 of the Integration Rule of The Florida Bar.

The Petition is conditioned upon acceptance by the Board of Governors of the following terms and conditions:

1. Petitioner was admitted to practice before The Florida Bar in 1965.
2. On May 17, 1982, the State of New Jersey accused petitioner in Felony Indictment # 719-82 of Forgery (one count) in violation of N.J.S. 2A:109-l(a) and (b), and Theft By Deception (one count) in violation of N.J.S. 2C:20~4, and Misapplication of Entrusted Property (one count) in violation of N.J.S. 2C:21-15.
3. On May 17, 1982, petitioner entered a Plea of Guilty to the accusations outlined in paragraph 2. Sentencing on the above was set for August 19, 1982.
4. On June 24, 1982, the State of New Jersey accused petitioner in a Felony Indictment # 927-82 of Embezzlement (two counts) in violation of N.J.S. 2A:102-5, and Misapplication of Entrusted Property (fifteen counts) in violation of N.J.S. 2C:21-15.
5. On July 2, 1983, petitioner entered a guilty plea to the charges outlined in paragraph 4.
6. On August 19, 1982, petitioner was sentenced and committed to the custody of the Commissioner of the Department of Corrections, New Jersey.
7. On September 15, 1982, the Supreme Court of Florida issued an order of suspension against petitioner suspending petitioner from the practice of law in Florida.
8. On January 25, 1983, an order was entered disbarring petitioner from the practice of law in New Jersey.
9. Petitioner acknowledges the adverse effect his actions and the corresponding punishment have on The Florida Bar and all its members. Petitioner further acknowledges that his actions re-fleet adversely upon his ability to practice law.
10. If this petition is granted, petitioner further agrees not to seek reapplication to The Florida Bar for a period of five years from the date of its acceptance.
11. Petitioner further agrees to pay to The Florida Bar any and all costs associated with this Petition to Resign and any and all costs associated with petitioner’s reapplication.
12. If this petition is granted, petitioner will not seek reapplication to The Florida Bar for a period of five years which is greater than the three-year minimum provided for in article XI, Rule 11.08(6) of the Integration Rule of The Florida Bar and greater than the three-year period in which a disbarred attorney is prohibited from reapplying as set forth in article XI, Rule 11.10(5) of the Integration Rule of The Florida Bar. As a result, the public interest and confidence in the legal profession will not be adversely affected nor will the administration of justice be hindered by the granting of this petition.

The Florida Bar having now filed its response supporting the Petition for Leave to Resign Without Leave to Reapply for a Period of Five Years and the Court having reviewed the same and determined that the requirements of Rule 11.08(3) are fully satisfied, the Petition for Leave to Resign Without Leave to Reapply for a Period of Five Years is hereby approved, effective immediately.

It is so ordered.

ADKINS, Acting C.J., and OVERTON, McDonald, EHRLICH and SHAW, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Paul William GESEMYER, Respondent.
    No. 63740.
    Supreme Court of Florida.
    June 7, 1984.
    Jim Smith, Atty. Gen. and James P. McLane, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for respondent.
   PER CURIAM.

Quashed with directions that the district court affirm the sentence imposed by the trial court. Rusaw v. State, 451 So.2d 469 (Fla.1984); State v. Hogan, 451 So.2d 844 (Fla.1984).

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, MCDONALD, EHRLICH and SHAW, JJ., concur.


text:
    Phillip ATKINS, Appellant, v. STATE of Florida, Appellee.
    No. 61851.
    Supreme Court of Florida.
    June 7, 1984.
    Rehearing Denied July 26, 1984.

      Jack T. Edmund and Marshall Slaughter of Edmund & McDaniel, Bartow, for appellant.
    Jim Smith, Atty. Gen. and William E. Taylor, Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

This case is an appeal from a judgment of conviction of a capital felony for which a sentence of death was imposed. Appellant was convicted of first-degree murder and kidnapping. This Court has jurisdiction of his appeal. Art. V, § 3(b)(1), Fla. Const.

A major item of evidence against appellant was his own confession, but it was corroborated by other testimony and evidence adequately proving appellant’s responsibility for the crimes. The evidence showed that on the afternoon of September 23, 1981, witnesses saw six-year-old Antonio Castillo getting into appellant’s car in the street in front of their respective homes. Appellant lived with his parents and the boy Antonio’s family lived in the same immediate neighborhood. Other witnesses testified that later in the evening they saw appellant carrying an injured boy and putting him in his car. This took place on an unpaved road in a wooded area. Still later the same evening, the boy was found lying unconscious on a dirt road adjacent to a railroad yard. The child was taken to a hospital where he was pronounced dead and was identified. He died from brain injuries caused by multiple severe lacerations of the head. The evidence showed that after killing the boy appellant returned home. Later that evening, law enforcement authorities located him and took him to police headquarters for questioning. Upon interrogation, appellant confessed.

Appellant’s confession to police officers was tape-recorded. The recording was played back to the jury at the trial. In that statement, appellant said that he was driving down the street when the boy waved at him, so he stopped and the boy got in the car. They went to a nearby park and watched a baseball game; then they went to a wooded area where appellant engaged in two separate sexual acts with the boy. According to appellant’s story, these acts took place with the boy’s consent. Appellant said that afterwards he believed from the way the boy was acting that he would tell his parents about what had happened, so appellant decided to kill the boy. Appellant stated that he struck the boy several times with a steel pipe that he had in his car. After beating the child thus, appellant threw the length of pipe away and departed the area. Before leaving he encountered some people who saw him carrying the boy back to his car. He proceeded to another secluded area, the railroad yard, and dragged the boy out of the car. Since the boy was still alive at this time, appellant said, he struck him several more times with his fists and then left him.

Appellant was indicted for first-degree murder, kidnapping, and two counts of sexual battery upon a child. At the close of the state’s evidence, however, the trial court granted a judgment of acquittal as to the sexual battery charges on the ground that there was no proof of the existence of those offenses independent of appellant’s statement.

Appellant contends that his pre-trial motion to suppress evidence, including his statement to police, should have been granted on the ground that his consent to be questioned and his consent to the search of his room and car were the products of an illegal arrest and were therefore invalid. He cites Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), and Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). Implicit in the making of this argument is the legal premise that appellant’s arrest was illegal. Appellant’s argument in this regard is without merit. The evidence presented at the hearing affirmatively established that at the time the officers detained appellant they had probable cause to believe he had committed murder and had the right to arrest him without a warrant. See Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979); Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); Shriner v. State, 386 So.2d 525 (Fla.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 829 (1981). Taken together, the information from the neighbors who saw the boy get in appellant’s car, from the witnesses who saw appellant with the injured boy and told police the automobile tag number, and from the parents who identified the dead boy at the hospital, was sufficient to provide probable cause to arrest appellant for murder. When police officers arrived at appellant’s home, they were invited into the yard and summoned to the rear entrance by appellant’s father or brother. The officers found appellant sitting outside the house on the back doorstep. See United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). They did not enter the home. See Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Justus v. State, 438 So.2d 358 (Fla.1983).

Appellant’s second argument regarding his pre-trial statements and waivers of constitutional rights is that they were invalid because he was intoxicated at the time of his arrest and could not make a knowing and intelligent waiver. Appellant testified at the hearing that he had consumed several large cans of beer and had taken a qualude during the afternoon and evening of the murder. His father testified that he and appellant’s mother had tried to persuade appellant not to leave home that evening because of concern for his intoxication. The officers who arrested appellant testified that he was coherent and appeared to be in full control of his faculties. All the officers who testified that they had contact with appellant, including those who interrogated him later that night, testified that he behaved normally and acted and spoke rationally. The crimes took place between six and eight o’clock in the evening. Appellant was not arrested until after eleven p.m. and not interrogated until around two a.m. Even if appellant had been under the influence of alcohol earlier in the evening, this would not establish that he was so intoxicated at the time of his later consents to searches, his waiver of the right not to answer questions, and his incriminating statements, as to render them ineffective.

All of appellant’s remaining points on appeal pertain to the sentencing process and the sentence of death. We have concluded that one of these legal points has merit and requires that appellant be resen-tenced. We need not treat the merits of any of the other challenges to the judge’s findings since the trial court will be required to reconsider and reweigh his findings.

The trial court found that the murder was committed “while the defendant was engaged in the commission of [or flight after committing] a Sexual Battery.” As was indicated at the outset appellant was initially charged with murder, kidnapping, and sexual battery. At the close of the state’s case, the court granted the defendant’s motion for judgment of acquittal on the charge of sexual battery. The appellant’s pre-trial statement, admitted into evidence at trial, indicated that sexual battery had occurred, but there was no physical evidence to so indicate. Therefore the court entered judgment of acquittal on the ground that there was no independent proof of the corpus delecti. However, the court later ruled that the confession was a sufficient basis to establish that sexual battery had occurred for purposes of finding that the murder was committed while engaged in or following a sexual battery, an aggravating circumstance under section 921.141(5)(d), Florida Statutes (1981).

In proceedings held under section 921.141 for determination of the appropriate sentence upon conviction of a capital felony, aggravating circumstances must be proven beyond a reasonable doubt before they may properly be considered by judge or jury. Demps v. State, 395 So.2d 501 (Fla.), cert. denied, 454 U.S. 933, 102 S.Ct. 430, 70 L.Ed.2d 239 (1981); Williams v. State, 386 So.2d 538 (Fla.1980); State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). The sentencing judge in the present case found that even though a sexual battery conviction was not proper due to lack of proof of corpus delecti, it was nevertheless appropriate to consider that a sexual battery had taken place for purposes of finding a statutory circumstance in aggravation of the murder.

In appellant’s tape-recorded confession, he stated that he had committed sexual battery upon the boy. In fact, appellant’s statement indicated that there were two separate acts of sexual battery, one oral and one anal. As was indicated above, the trial judge entered judgment of acquittal on the charge of sexual battery on the grounds that there was no corroboration of the confession and that a confession alone may not be relied upon to establish the corpus delecti. See State v. Allen, 335 So.2d 823 (Fla.1976); Vaillancourt v. State, 288 So.2d 216 (Fla. 1974); Deiterle v. State, 101 Fla. 79, 134 So. 42 (1931); Mitchell v. State, 45 Fla. 76, 33 So. 1009 (1903). At the sentencing phase of the trial, the judge reasoned that if there had in fact been an anal sexual battery committed upon the boy, physical evidence thereof would have been revealed by examination of the boy’s body. The judge therefore concluded that since there was no such physical evidence, the inclusion in appellant’s confession of reference to an anal sexual battery on the boy was the result of active mental fantasy on the part of appellant. Even though the evidence of an oral sexual battery, independent of appellant’s confession, was equally lacking, the trial court nevertheless found the commission of an oral sexual battery as an aggravating circumstance based on the statement in appellant’s confession. The only difference between the two crimes is1 that one of them, according to expert medical testimony, would inevitably have left physical evidence and the other would not have. We believe this is an inadequate basis for distinguishing the two purported crimes referred to in appellant’s confession. Under these circumstances, we hold that the consideration of the occurrence of a sexual battery as an aggravating circumstance in the capital felony sentencing process was error.

The trial judge found evidence of some statutory mitigating circumstances: that appellant’s past behavior did not show a significant history of prior criminal activity and that at the time of the murder appellant’s capacity to conform his conduct to the requirements of law was substantially impaired. The judge also found that appellant suffered from a personality disorder, although not of sufficient gravity to constitute extreme mental or emotional disturbance at the time of the murder. Because some mitigating circumstances were established to the satisfaction of the trial court, the court’s erroneous finding of an improper aggravating circumstance may have injuriously affected the process of weighing aggravating and mitigating circumstances. See Elledge v. State, 346 So.2d 998 (Fla.1977). We therefore conclude that appellant’s case must be remanded to the trial court for resentencing. Because we order plenary reconsideration by the trial court judge on the question of an appropriate sentence, we find that there is no need to comment on the remaining arguments appellant makes regarding his sentence.

The judgment of the circuit court, adjudicating appellant guilty of first-degree murder and kidnapping, is affirmed. The sentence of death, having been found tainted by the improper consideration of an erroneous aggravating circumstance, is vacated. The case is remanded to the trial court for reconsideration and the imposition of an appropriate sentence for the capital felony.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, MCDONALD, EHRLICH and SHAW, JJ., concur.

ADKINS, J., concurs in the conviction, but dissents from the sentence.


author: ADKINS, Justice. OVERTON, Justice,

text:
    Carl JACKSON, Appellant, v. STATE of Florida, Appellee. Carl JACKSON, Petitioner, v. Louie L. WAINWRIGHT, Respondent. Carl JACKSON, Petitioner, v. STATE of Florida, Respondent.
    Nos. 65429, 65430 and 65431.
    Supreme Court of Florida.
    June 12, 1984.

      Larry G. Turner and Robert S. Griscti of Turner, Kurrus & Griscti, Gainesville, and William B. Salmon of the Law Offices of William B. Salmon, Gainesville, for appellant/petitioner.
    Jim Smith, Atty. Gen. and David P. Gaul-din, Asst. Atty. Gen., Tallahassee, for ap-pellee/ respondent.
   ADKINS, Justice.

This is an appeal from an order of the Circuit Court of the Fourteenth Judicial Circuit in and for Bay County denying appellant’s second motion for post-conviction relief. We also have before us a petition for habeas corpus. We have jurisdiction. Art. V, § 3(b)(1), (9), Fla. Const.

Carl Jackson (hereinafter appellant), was convicted of robbery, kidnapping, and two counts of first-degree murder. This Court affirmed the murder conviction and sentence of death in Jackson v. State, 359 So.2d 1190 (Fla.1978), cert. denied, 439 U.S. 1102, 99 S.Ct. 881, 59 L.Ed.2d 63 (1979) (hereinafter Jackson I). Appellant then filed a motion in the circuit court for post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure alleging several infirmities in the conduct of his trial. The circuit court denied the motion. This Court affirmed. Jackson v. State, 437 So.2d 147 (Fla.1983), cert. denied, — U.S. -, 104 S.Ct. 1016, 79 L.Ed.2d 246 (1984) (hereinafter Jackson II). Appellant then filed a second 3.850 motion in the circuit court, a motion for a hearing and appointment of experts for determinations of defendant’s competency and for a stay of execution during the pendency thereof, and an application for a stay of execution. The circuit court denied the motions and this appeal followed. Appellant has also filed a petition for writ of habeas corpus in this proceeding. For the reasons which we express below, we affirm the denial by the circuit court of appellant’s second 3.850 motion and his motion for a judicial determination of competency. Appellant’s petition for writ of habeas corpus and his application for a stay of execution are also hereby denied.

Appellant contends in his second 3.850 motion that under the standard enunciated by the United States Supreme Court in Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), he received ineffective assistance of counsel at his trial. He argues that the United States Supreme Court in that opinion announced new standards for assessing ineffectiveness claims and specifically rejected the standards of Knight v. State, 394 So.2d 997 (Fla.1981), by which we judged appellant’s claim in his first 3.850 motion.

In Knight v. State, this Court adopted four principles encompassed in United States v. DeCoster, 624 F.2d 196 (D.C.Cir.1979) (en banc), by which a claim of ineffective assistance of counsel must be judged:

First, the specific omission or overt act upon which the claim of ineffective assistance of counsel is based must be detailed in the appropriate pleading.
Second, the defendant has the burden to show that this specific omission or overt act was a substantial and serious deficiency measurably below that of competent counsel....
Third, the defendant has the burden to show that this specific, serious deficiency, when considered under the circumstances of the individual case, was substantial enough to demonstrate a prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings....
Fourth, in the event a defendant does show a substantial deficiency and presents a prima facie showing of prejudice, the state still has an opportunity to rebut these assertions by showing beyond a reasonable doubt that there was no prejudice in fact.

394 So.2d at 1001.

In Strickland v. Washington, the United States Supreme Court held that a defendant’s claim of ineffective assistance of counsel has two components:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

104 S.Ct. at 2064.

To further explain the appropriate test for proving prejudice, the Court then held that “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 2068. We are of the opinion that this test does not differ significantly with the Knight standard of “a likelihood that the deficient conduct affected the outcome of the court proceedings;” hence, we do not reconsider our first opinion denying appellant’s claim of ineffectiveness of trial counsel.

Appellant argues next in his second 3.850 motion that the death penalty in Florida is imposed in an arbitrary and discriminatory manner on the basis of race. This issue has been foreclosed by this Court in Sullivan v. State, 441 So.2d 609 (Fla.1983). More recently, the United States Supreme Court in Wainwright v. Ford, No. A-980, 3 (U.S. May 31, 1984), noted that “the statistical evidence relied upon by Ford to support his claim of discrimination was not sufficient to raise a substantial ground upon which relief might be granted.” Appellant here relies on the same statistical evidence presented by Ford in his appeal; hence, there is no merit to this issue.

Finally, regarding appellant’s other issues raised in his 3.850 motion, we agree with the trial judge that these could have been raised, should have been raised, or were raised in previous proceedings either on direct appeal or in his first 3.850 motion. Meeks v. State, 382 So.2d 673 (Fla.1980).

Appellant has also filed a petition for writ of habeas corpus in this Court, alleging ineffective assistance of appellate counsel. We find that only one of these points merits discussion, because the alleged errors were not preserved at trial. Appellate counsel cannot be ineffective for failing to raise issues which were not properly preserved at trial, because the appellate court may not review those issues. State v. Barber, 301 So.2d 7 (Fla.1974).

Appellant does allege that a proper objection was made in the trial court concerning an alleged Witherspoon [Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) ] violation. Juror Powell was excluded for cause after he stated that he “didn’t believe in capital punishment.” However, the record shows that defense counsel’s objection was not to the excusal of the juror for cause on these grounds, but to the form of the prosecutor’s question. Hence, this issue was not properly preserved at trial, and appellate counsel was not ineffective for failing to raise it on direct appeal. State v. Barber.

Appellant also alleges in his petition for writ of habeas corpus that this Court failed to consider an issue properly raised by him in his direct appeal in Jackson I, to wit, that the trial court erred in overruling Jackson’s trial counsel’s objection to the prosecutor’s statements that unless strong mitigating circumstances were demonstrated, the jury must return death verdicts.

Our capital sentencing statute, section 921.141, Florida Statutes (1983), requires this Court to review the entire record in each capital case to determine if the judgment of conviction and sentence was proper. The absence of discussion in our written opinion in this case is not an indication that we did not carefully review the entire record and each argument made by appellate counsel in the direct appeal. We did not abrogate our duty in this case; therefore, we see no reason to disturb appellant’s conviction and sentence on this basis.

Finally, in his petition for habeas corpus, as well as in a separately filed petition for issuance of this Court’s writ of extraordinary relief, appellant requests two separate judicial determinations as to his competency. First, he requests that a hearing be held to determine whether he is competent to be executed. He argues that this judicial determination should be made in addition to and aside from that determination made under section 922.07, Florida Statutes (1983), by the governor’s commission of psychiatrists. This issue has been adversely decided against appellant in our decision in Goode v. Wainwright, 448 So.2d 999 (Fla.1984), and most recently in Ford v. Wainwright, 451 So.2d 471 (Fla.1984).

Second, appellant requests a judicial determination of his competency to understand the nature of and assist his counsel in post-conviction proceedings. Appellant relies on section 916.11 and 916.12, Florida Statutes (1983), and Rule 3.210, Florida Rules of Criminal Procedure to support his argument. This reliance is misplaced, however, because the statutes and the rule both address the issue of a judicial determination of competency related to criminal trial proceedings. These do not apply to a 3.850 motion because the designation of the criminal procedure rule is a misnomer in that the proceeding is civil in nature, rather than criminal, and is likened to a combination of the common-law writ of habeas corpus and a motion for writ of error coram nobis. Dykes v. State, 162 So.2d 675 (Fla. 1st DCA 1964). Therefore, we hold that appellant is not entitled to a judicial determination of his competency to assist counsel either in preparing a 3.850 motion or a petition for writ of habeas corpus.

Accordingly, the denial of appellant’s second 3.850 motion is hereby affirmed. His petition for extraordinary relief, his petition for writ of habeas corpus, and his application for stay of execution are also hereby denied.

It is so ordered.

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

OVERTON, J., concurs specially with an opinion.

OVERTON, Justice,

specially concurring.

Competency of a defendant to stand trial and competency of a defendant to aid his counsel in an appeal are not the same. In the first instance, a defendant has to be able to advise counsel of facts and circumstances to aid in his defense. In the second instance, the record has been made and counsel must make the legal decision of what issues should be appealed. Similarly, when post-conviction relief is sought, the competency of the defendant is significant only when there are factual matters in issue that must be determined. In my view, before a defendant may require a trial court to hold a hearing on his competency to aid counsel in a post-conviction relief proceeding, the defendant must show that there are specific factual matters that must be heard. That circumstance has not been established in this record and no prejudice has been specifically demonstrated by this defendant.


author: ADKINS, Justice.

text:
    William Thomas ZEIGLER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 63606.
    Supreme Court of Florida.
    June 21, 1984.
    See also Fla., 421 So.2d 1.

      William F. Duane, Orlando, for appellant.
    Jim Smith, Atty. Gen. and Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, for appellee.
   ADKINS, Justice.

This case is before us on direct appeal from a denial, without an evidentiary hearing, of Zeigler’s motion to vacate, set aside, or correct conviction. Fla.R.Crim.P. 3.850. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

Zeigler was convicted of first-degree murder and sentenced to death in July, 1976. His conviction and sentence were appealed to this Court and both were affirmed in July, 1981. Zeigler v. State, 402 So.2d 365 (Fla.1981), cert. denied, 455 U.S. 1035, 102 S.Ct. 1739, 72 L.Ed.2d 153 (1982). The facts of the case are set forth in that opinion and need not be repeated here.

In Zeigler’s rule 3.850 motion he asserted the following nineteen grounds for his challenge: 1) that the trial court violated his rights to due process and equal protection when it refused to admit evidence showing the results of a sodium butathol examination conducted on him; 2) that his right to due process was violated when an actually or potentially biased trial judge presided over his trial; 3) that the grand jury indictment of him was invalid; 4) that the investigating agency and the state attorney exhibited a pattern of obstruction and delay and actual destruction and suppression of evidence; 5) that his conviction and sentence were obtained by the presentation of evidence seized in violation of his fourth amendment rights; 6) that the prosecutor improperly commented to the jury on evidence; 7) that the jury deliberations were tainted by undue pressure from the trial judge and by the use of intoxicants; 8) that the trial judge improperly imposed the death penalty after the jury had recommended life; 9) that Zeigler was denied effective assistance of counsel at the guilt and penalty phases of his trial; 10) that the death penalty is imposed in Florida in an arbitrary, capricious and irrational manner; 11) that the trial court failed to define the burden of proof to the jury; 12) that the trial court's construction of the aggravating circumstance of “heinous, atrocious and cruel” was unconstitutionally broad and vague; 13) that the trial court failed. to adequately guide and channel the jury’s discretion; 14) that the trial court improperly found and weighed certain aggravating circumstances; 15) that the trial judge improperly limited consideration of mitigating circumstances to those enumerated in the statute; 16) that the instructions to the jury in the penalty phase improperly shifted the burden of proof; 17) that the Florida death penalty statute is unconstitutional as applied; 18) that because of an ambiguity in the scope of mitigating circumstances, persons sentenced prior to July 3, 1978, were deprived of a fully individualized sentence determination; 19) that Zeigler was deprived of due process when the state failed to provide notice of the aggravating circumstances upon which it would rely.

In spite of Zeigler’s novel, though not convincing, argument that all nineteen points should be viewed as a pattern which could not be seen until after the trial, we hold that all but two of the points raised either were, or could have been, presented at trial or on direct appeal. Therefore, they are not cognizable under rule 3.850. Demps v. State, 416 So.2d 808, 809 (Fla.1982); Meeks v. State, 382 So.2d 673, 675 (Fla.1980); Adams v. State, 380 So.2d 423, 424 (Fla.1980). The two issues which were properly before the court below were Zeig-ler’s claim that he did not receive effective assistance of counsel at trial and his claim that his right to due process and a fair trial, under the sixth and fourteenth amendments of the United States Constitution, was violated when an actually or potentially biased trial judge presided over his trial.

After applying the standards which we adopted in Knight v. State, 394 So.2d 997 (Fla.1981), we hold that the trial court properly denied Zeigler’s claim of ineffective assistance of counsel. His contention is without merit because the motion itself falls short of the requirements of Knight and also because there was no indication of the availability given during oral argument that evidence was available to support his allegation. The same result would be reached under Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because the standard set forth in that ease “does not differ significantly with the Knight standard.” Jackson v. State, 452 So.2d 533, 535 (Fla.1984). See also Downs v. State, 453 So.2d 1102 (Fla.1984). Therefore, there is no requirement for an evidentiary hearing on this issue.

Zeigler makes several allegations in his argument on the issue of bias on the part of the trial judge, Judge Maurice Paul. All but one of these involve facts and circumstances known at the close of the trial. Therefore, those issues could have been addressed on direct appeal and are not cognizable under rule 3.850. There is one allegation the factual basis of which was not known until January, 1981. This allegation involves a sworn statement obtained by the defense from former Orange County Deputy Sheriff Leigh MeEachern. This sworn statement by MeEachern was not presented to Judge Byrd, who presided at the rule 3.850 hearing. Zeigler alleges that Mr. MeEachern related in that sworn statement a meeting at the state attorney’s office which was attended by Robert Eagan, State Attorney; Don Frye, Orange County Investigator; Judge Paul, the presiding judge; and Mr. MeEachern. At this meeting Mr. Eagan allegedly explained to Judge Paul the evidence against Mr. Zeigler. Toward the end of the conference, Judge Paul allegedly made a statement to the effect, “Bob, you get me one first-degree murder conviction and I’ll fry the son of a bitch.” The state presented sworn statements from Judge Paul, Mr. Eagan and Mr. Frye, all of whom expressly denied Mr. McEachern’s alleged statement. Judge Byrd chose to believe the statements of Judge Paul and Mr. Eagan and to disbelieve Zeigler’s allegation. Based on our review of the record, we cannot say that Zeigler’s allegation conclusively shows a lack of merit so as to obviate the need for an evidentiary hearing into the matter. See Meeks v. State.

We also hold that, although the allegation of bias is based on a fact newly discovered by the defense, it is an issue properly considered in the rule 3.850 motion in this instance. Generally, an appellant may not raise “newly discovered evidence” under the rule 3.850 motion. See Smith v. State, 400 So.2d 956 (Fla.1981); Hallman v. State, 371 So.2d 482 (Fla.1979). The proper remedy is usually an application for a writ of error coram nobis to the appellate court. The writ may only be granted when, among other requirements, the newly discovered fact was unknown by the trial court, by the party, or by counsel at the time of the trial. See Hallman v. State. These newly discovered facts have in prior cases gone to the actual substance of the trial and could possibly support a reversal of the conviction in question. In the instant case, however, we have a statement which, if true, would possibly support resentencing, not reversal, of conviction. The statement reflects only on the sentencing attitude of the judge. In addition, if the statement was made, it was certainly within the knowledge of the trial court at the time of the trial and Zeigler would therefore be denied a writ of error coram nobis if we treated this appeal as such. This would have the unfortunate result of leaving an appellant with no remedy when there is possible misconduct or bias on the part of the trial judge relating to sentencing and discovered after the trial. The law does not intend such unjust results, particularly in the case of a death-sentenced individual.

Accordingly, we reverse the trial court’s order to the extent that the order denies relief under rule 3.850 with respect to possible bias on the part of the trial judge in sentencing Zeigler. In all other respects the order is affirmed. We remand this case to the trial court for a prompt eviden-tiary hearing on the question of the alleged statement of Mr. McEaehern.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, McDonald, EHRLICH and SHAW, JJ., concur.


author: OVERTON, Justice.

text:
    Don Andrew BRACKIN, et al., Petitioners, v. George William BOLES, et ux., Respondents.
    No. 61978.
    Supreme Court of Florida.
    June 14, 1984.
    Rehearing Denied July 25, 1984.

      Donald H. Partington and W. Christopher Hart of Clark, Partington, Hart, Hart & Johnson, Pensacola, for petitioners.
    W.H.F. Wiltshire and James M. Wilson of Harrell, Wiltshire, Stone and Swearin-gen, Pensacola, for respondents.
   OVERTON, Justice.

This is a petition to review a decision of the First District Court of Appeal reported as Boles v. Brackin, 411 So.2d 280 (Fla. 1st DCA 1982), which directly and expressly conflicts with several decisions of the Third District Court of Appeal, Corbett v. Seaboard Coastline Railroad, 375 So.2d 34 (Fla. 3d DCA 1979), review denied, 383 So.2d 1202 (Fla.1980); Dorsett v. Dion, 347 So.2d 826 (Fla. 3d DCA 1977); and Goldner v. Lentin, 96 So.2d 553 (Fla. 3d DCA 1957). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

This cause concerns the admissibility, in a civil trial, of the results of a blood alcohol test and a violation of the driver’s license law. We hold that the results of a blood alcohol test are admissible in a civil trial regardless of whether the test was made for purposes of an accident report investigation or a criminal investigation. Consequently, we recede from our decisions in State v. Mitchell, 245 So.2d 618 (Fla.1971), and State v. Coffey, 212 So.2d 632 (Fla.1968). We also hold that a violation of the driver’s license law is admissible if relevant to the issues in a cause, although under the facts of this case such a violation was not admissible.

This case commenced as a personal injury action arising from an automobile accident. Respondent Boles, the driver of one car, sued Brackin, the driver of the other car. At the trial Boles testified that he stopped at a three-way intersection. He saw headlights approaching from both directions, but judged that he had enough time to make a left turn and proceed down the highway. As he proceeded through the intersection, the car on his left, driven by Brackin, rammed him broadside. Boles received severe injuries.

The defense called as a witness the highway patrol officer who had investigated the accident. During the proffer of the officer’s testimony the officer said that he asked a lab technician for a sample of Boles’ blood. A chemist proffered that the blood alcohol content of the sample was .083 per cent. The trial court ruled that this evidence was inadmissible under section 316.066, Florida Statutes (1981). During Brackin’s cross-examination, Boles attempted to submit evidence that Brackin had been ticketed and fined for violating a restriction on his driver’s license. At the time of the accident Brackin was driving alone although his restricted license required that he be accompanied at all times by a licensed driver who was not less than eighteen years of age and who was actually occupying the front seat of the vehicle. See § 322.16, Fla.Stat. (1981). The trial court found this evidence to be irrelevant and ruled it inadmissible.

The jury returned a verdict finding that Brackin was not negligent. Boles appealed to the First District Court of Appeal, arguing that the trial court erred in not allowing him to submit evidence of Brackin’s violation of the driver’s license law. Brac-kin filed a cross-appeal, arguing that the trial court erred in not allowing him to introduce into evidence testimony concerning Boles’ blood alcohol content. The district court ruled in Boles’ favor on both issues, finding that Brackin’s violation of the driver’s license law should have been admitted but that evidence of Boles’ blood alcohol content was properly excluded. We disagree.

With respect to the admissibility of Boles’ blood alcohol content, both the trial court and the district court of appeal concluded that this evidence was inadmissible under section 316.066, Florida Statutes (1981), because the chemical analysis of Boles’ blood was performed for the purpose of completing an accident report. Although the conclusion reached by the trial court and the district court is consistent with our decisions in State v. Mitchell, 245 So.2d 618 (Fla.1971), and State v. Coffey, 212 So.2d 632 (Fla.1968), we now find that we should recede from those decisions to the extent that they prohibit the admissibility of the results of the blood alcohol test in this case.

There is no federal or state constitutional prohibition against the admissibility of this type of blood alcohol test in either civil or criminal proceedings. The law is clear that the taking of a blood sample is not a violation of the fourth amendment; nor is it a communication which violates the fifth amendment. In Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957), the United States Supreme Court held that the taking of a blood sample from an unconscious automobile accident victim, who was later charged with involuntary manslaughter, did not violate the due process clause of the fourteenth amendment. In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Court held that the taking of a blood sample for chemical testing from a defendant without his consent, where there was probable cause for the officer to believe that the defendant was under the influence of intoxicating liquor, did not violate the defendant’s constitutional rights. Most recently, in South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), the Court went a step further and held that refusal to submit to a blood alcohol test may be used against a defendant at trial. Such use, the Court held, does not violate either the fifth amendment privilege against self-incrimination or the due process clause of the fourteenth amendment even though a defendant is not warned that his refusal to submit could be used against him.

This Court has followed these United States Supreme Court decisions and has held that there is no state constitutional prohibition against the admissibility of blood tests taken without the consent of the subject party. Filmon v. State, 336 So.2d 586 (Fla.1976), cert. denied, 430 U.S. 980, 97 S.Ct. 1675, 52 L.Ed.2d 375 (1977).

This Court has also determined that blood alcohol tests are admissible when an accident investigation can be separated into an accident report phase and a criminal investigation phase. In Coffey and in Fil-mon this Court held a blood alcohol test admissible when the evidence reflected that the accident report phase of the investigation had ended and the blood test was taken as a result of the criminal investigation of the incident. This so-called distinction between an accident report investigation and a criminal investigation is based on a construction of section 316.066, Florida Statutes (1981), which provides:

316.066 Written reports of accidents.—
(1) The driver of a vehicle which is in any manner involved in an accident resulting in bodily injury to or death of any person or total damage to all property to an apparent extent of $100 or more shall, within 5 days after the accident, forward a written report of such accident to the department. However, when the investigating officer has made a written report of the accident, no written report need be forwarded to the department by the driver.
(2) The department may require any driver of a vehicle involved in an accident of which written report must be made as provided in this section to file supplemental written reports whenever the original report is insufficient in the opinion of the department, and may require witnesses of accidents to render reports to the department.
(3)(a) Every law enforcement officer who in the regular course of duty investigates a motor vehicle accident in which damage to property exceeds the amount of $100, or in which bodily injury or death occurs, either at the time of and at the scene of the accident, or thereafter by interviewing participants or witnesses, shall, within 24 hours after completing the investigation, forward a written report of the accident to the department.
(b) In the case of a county which has a central traffic records system for the purpose of tabulating and analyzing countywide traffic accident reports, the law enforcement agency shall submit a copy of the written report of the accident within the time limit prescribed in paragraph (a) to the central traffic records section of such county.
(4) All accident reports made by persons involved in accidents shall be without prejudice to the individual so reporting and shall be for the confidential use of the department or other state agencies having use of the records for accident prevention purposes, except that the department may disclose the identity of a person involved in an accident when such identity is not otherwise known or when such person denies his presence at such accident, and except that the department shall disclose the final judicial disposition of the case indicating which if any of the parties were found guilty. No such report shall be used as evidence in any trial, civil or criminal, arising out of an accident, except that the department shall furnish upon demand of any person who has, or claims to have, made such a report or upon demand of any court a certificate showing that a specified accident report has or has not been made to the department solely to prove a compliance or a failure to comply with the requirements that such a report be made to the department.

(Emphasis added.) Subparagraph (4) is the critical portion of that statute. This sub-paragraph provides that “accident reports made by persons involved in accidents shall be without prejudice to the individual so reporting” and that “[n]o such report shall be used as evidence in any trial.” We now see no need for a distinction between the accident report investigation and the criminal investigation except as it pertains to a defendant’s individual communications to a police officer or in a report submitted by a defendant in accordance with the statute. Such communications are required by sub-paragraphs (1) and (2), under which a driver involved in an accident must file a written report and supplements thereto.

A blood test is not a communication from “a person involved in an accident.” The tangible evidence of the accident, i.e., location of accident, vehicles’ locations, skidmarks, damage to vehicles, all observed by the investigating officer, are not confidential and may be admitted into evidence by the investigating police officer. All this information ordinarily appears on the accident report prepared by the investigating police officer and it is clearly admissible at trial. Further, other tangible evidence obtained or observed by the investigating officer is not derived from an “accident report made by persons involved in an accident.” Neither is a blood test.

There is no justification or logical reason for holding as privileged the results of .a blood alcohol test directed by an investigating officer who prepared an accident report. The statute only prohibits the use of communications “made by persons involved in accidents” in order to avoid a fifth amendment violation. The distinction this Court has previously made between investigations for accident report purposes and investigations for purposes of making criminal charges is artificial, is not a proper interpretation of the statute, and must be eliminated. We clearly and emphatically hold that the purpose of the statute is to clothe with statutory immunity only such statements and communications as the driver, owner, or occupant of a vehicle is compelled to make in order to comply with his or her statutory duty under section 316.066(1) and (2). Accordingly, we hold that the blood alcohol test is admissible in the instant case.

With regard to the admissibility of evidence which would establish that Brackin operated a car in violation of a restriction on his license, the trial court relied upon a line of cases from the Third District Court of Appeal which hold that a violation of a license restriction is not admissible unless there is a causal connection between that violation and the injuries incurred. Corbett v. Seaboard Coastline Railroad, 375 So.2d 34 (Fla. 3d DCA 1979), review denied, 383 So.2d 1202 (Fla.1980); Dorsett v. Dion, 347 So.2d 826 (Fla. 3d DCA 1977); Goldner v. Lentin, 96 So.2d 553 (Fla. 3d DCA 1957). The district court in the instant case found that the causation predicate established by these cases directly conflicts with our decision in deJesus v. Seaboard Coast Line Railroad, 281 So.2d 198 (Fla.1973). The district court noted that deJesus established three categories of statutory violations. The first category creates strict liability or conclusively actionable negligence, the second category comprises violations which provide proof of negligence, and the third category consists of violations which provide evidence of negligence. We stated that this third category included violations of traffic regulations, but that “proximate cause and other elements of actionable negligence must be proven independently.” Id. at 201. The district court below interpreted this language to mean that causality has nothing to do with the admissibility of a person’s violating section 322.16.

This interpretation is incorrect. The language in deJesus that a violation of a traffic regulation is evidence of negligence was not meant to be an exception to the general rule that for evidence to be admissible, it must be relevant. See § 90.-402, Fla.Stat. (1981). Evidence is relevant if it tends to prove or disprove a material fact at issue. Hence a person’s violating a traffic regulation is admissible evidence only if it tends to prove that that person has negligently operated an automobile. Relevancy is usually inherently established when the traffic regulation which was violated concerns the manner in which an automobile was operated. Relevancy is not so easily established when the traffic regulation which was violated concerns a licensing requirement.

The vast majority of jurisdictions hold that a violation of a driver’s license law is not evidence of negligence in the absence of some causal connection between the violation and the injury. See Annot., 29 A.L.R.2d 963 (1953 & Supp. 1981). This requirement of a causal connection for evidence of a violation to be admissible should not be confused with the proximate cause element of a tort action for negligence. The first is a determination of law made by a trial judge in deciding whether a person’s violating a driver’s license regulation is relevant. Whether such a violation is a proximate cause of any damage or injuries is a finding of fact to be made by the jury.

Thus the real issue in this case is whether the trial judge erred in deciding as a matter of law that Brackin’s violating the restriction on his license was not relevant to the manner in which he was operating the automobile. In some situations the violation of such a restriction may be relevant to show the driver’s inexperience and incompetence in handling an automobile. See Dorsett v. Dion. In this case, however, Brackin’s experience and competence were not placed in issue. Moreover, the accident took place only a few days before Brackin’s seventeenth birthday and he had been driving for almost two years. Boles’ case did not rest upon Brackin’s inexperience, but rather upon the allegation that Brackin was exceeding the speed limit. We therefore find that the trial court was correct in ruling that Brackin's violation of section 322.16 was not relevant and therefore was inadmissible.

We quash the decision of the district court and remand for proceedings in accordance with our decision.

It is so ordered.

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

ADKINS, J., dissents.


author: PER CURIAM. EHRLICH, Judge,

text:
    THE FLORIDA BAR, Complainant, v. Howard O. MORRIS, Jr., Respondent.
    Nos. 63123, 63634.
    Supreme Court of Florida.
    June 14, 1984.

      John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and David G. McGunegle, Bar Counsel, Orlando, for complainant.
    No appearance for respondent.
   PER CURIAM.

These disciplinary proceedings are before the Court on complaint of The Florida Bar and report of referee, pursuant to article XI, Rule 11.06(9)(b) of the Integration Rule of The Florida Bar. No petition for review has been filed and we adopt the recommendation of the referee herewith.

The referee recommended findings of guilt and recommendations of discipline as follows:

As to Case No. 63,123
I recommend that the Respondent be found guilty and specifically that he be found guilty of the following violations of his Oath as an attorney, The Integration Rules of The Florida Bar and Disciplinary Rules of the Code of Professional Responsibility, to-wit: Disciplinary Rule 1-102(A)(6), for engaging in conduct that reflects adversely on his fitness to practice law; and 5-104(A), for entering into a business transaction with a client with differing interest where the client expects the lawyer to exercise his professional judgment for the client’s protection and without full disclosure and the client’s consent.
As to Case No. 63,634
I recommend that the Respondent be found guilty and specifically that he be found guilty of the following violations of his Oath as an attorney, The Integration Rules of The Florida Bar and Disciplinary Rules of the Code of Professional Responsibility, to-wit: Disciplinary Rules 11.02(3)(a), and 11.02(4) of Article XI of The Florida Bar Integration Rule for engaging in conduct contrary to honesty, justice or good morals and for misusing and mishandling trust funds; and 9-102(B)(4) for failing to properly handle trust funds.
RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED: I recommend that the Respondent be suspended for a period of two years and thereafter until he shall prove his rehabilitation as provided in Rule 11.-10(4): The suspension to commence at the conclusion of (be consecutive to) the suspension imposed by The Supreme Court of Florida in THE FLORIDA BAR, Complainant, v. HOWARD O. MORRIS, Jr., Respondent, 415 So.2d 1274 (Fla.1982).

Costs in the amount of $1,215.92 were found to be reasonable and taxed to the respondent.

Therefore, respondent is suspended from the practice of law for two years and thereafter until he shall prove rehabilitation, such suspension to commence immediately upon the completion of the suspension imposed in the earlier disciplinary proceedings. Costs are taxed to the respondent.

It is so ordered.

BOYD, Acting C.J., and OVERTON, MCDONALD and SHAW, JJ., concur.

EHRLICH, J., concurs specially with an opinion.

EHRLICH, Judge,

specially concurring.

I concur only because the referee’s report was uncontested. Under other circumstances, I would vote to disbar the respondent. He now stands convicted of three separate violations of trust accounts and of a different, but no less reprehensible, method of stealing from a client. He has failed to keep the Bar notified of his whereabouts, and thus has shown utter disregard for the rules and procedures of the Bar. What further evidence can we require to show that respondent is not fit to be a member of The Florida Bar?


text:
    THE FLORIDA BAR, Complainant, v. Lance E. WOOTEN, Respondent.
    No. 63817.
    Supreme Court of Florida.
    June 14, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Michael D. Powell, Bar Counsel, Fort Lauderdale, for complainant.
    Ray Sandstrom of Sandstrom & Haddad, Fort Lauderdale, for respondent.
   PER CURIAM.

This attorney discipline proceeding is before us on the complaint of The Florida Bar and the report of the referee. The Florida Bar has petitioned for review pursuant to article XI, Rule 11.09(1) of the Integration Rule of The Florida Bar. We have jurisdiction. Art. V, § 15, Fla. Const.

Respondent was charged with violation of Disciplinary Rule 5-103(B) of The Florida Bar Code of Professional Responsibility for giving financial assistance to a client and thereby acquiring a financial interest in the client’s contemplated or pending litigation. The referee found that respondent did not acquire any interest in his client’s litigation and recommended that the complaint be dismissed. The Florida Bar now petitions for review of the referee’s recommendation. The Bar seeks a finding of guilt and the imposition of a public reprimand.

The facts of this case are as follows. Respondent was employed to represent an individual with regard to a personal injury action and workers’ compensation claim. During a period of over two years, respondent advanced his client in excess of $20,-000. Some of this money was used for the client’s medical bills, but a substantial portion was used for the maintenance and support of the client and his family. The majority of this money was secured by promissory notes and was to be repaid from the proceeds of the personal injury action or the workers’ compensation claim. Respondent was discharged prior to any recovery and, consequently, none of the funds advanced by respondent have been repaid. Respondent has made no effort to recover the money.

We reject the findings and recommendation of the referee and find that the facts of this case, on their face, demonstrate a clear violation of Disciplinary Rule 5-103(B). This Court has repeatedly held that an attorney may not advance money to a client except for the reasonable expenses of litigation. See The Florida Bar v. Rogowski, 399 So.2d 1390 (Fla.1981); The Florida Bar v. Abagis, 318 So.2d 395 (Fla.1975). By respondent’s own admission, the funds advanced in this case were for the maintenance and support of the client and his family and were to be repaid from the proceeds of the client’s litigation.

The referee’s finding that respondent did not acquire an interest in his client’s litigation is clearly erroneous. The mere fact that respondent advanced more than $20,-000, which was not connected to the expenses of litigation and which was to be repaid from the proceeds of the litigation, is sufficient evidence of respondent’s acquisition of an interest in the client’s litigation.

We hold that respondent violated Disciplinary Rule 5-103(B) and that the appropriate punishment is a public reprimand. The publishing of this opinion in Southern Reporter shall constitute the public reprimand.

The cost of these proceedings in the amount of $695.31. is assessed against respondent.

It is so ordered.

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


author: SHAW, Justice.

text:
    Clifton Lee WHITFIELD, Petitioner, v. STATE of Florida, Respondent.
    No. 64051.
    Supreme Court of Florida.
    June 14, 1984.

      Randolph P. Murrell, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen. and David P. Gaul-din, Asst. Atty. Gen., Tallahassee, for respondent.
   SHAW, Justice.

This cause is before us on petition for review of Whitfield v. State, 433 So.2d 1285 (Fla. 1st DCA 1983), which is in express and direct conflict with Jackson v. State, 435 So.2d 984 (Fla. 4th DCA 1983). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Jerry Gosby testified for the state that he had originally participated in a conspiracy involving Paris Nelson and petitioner, the object of which was to kill Bobby Rivers. The original plan was to kill Rivers in his apartment using .38 and .32 caliber pistols. Rivers’ body was discovered on a dirt road, and from it were removed one .38 caliber and two .32 caliber bullets. A fingerprint of Nelson, who was seen with Rivers the previous evening, was discovered inside Rivers’ car.

Gosby, arrested on another charge, informed the police of the Rivers conspiracy, resulting in the arrest of Nelson and petitioner. Two pistols, .32 and .38 caliber, were found in a bag at a service station where petitioner worked. Petitioner’s fingerprint was lifted from the bag.

Petitioner and Nelson were charged with conspiracy to commit first-degree murder. Before trial, Nelson told a cellmate, Dorio Daniels, that petitioner shot Rivers. Later Nelson told another cellmate, Gregory Williamson, that he had shot Rivers with petitioner’s guns and then returned the guns to petitioner. While petitioner awaited trial, some eight months after his incarceration and initial fingerprinting, he refused to be fingerprinted a second time. The jury found petitioner guilty of conspiracy to commit first-degree murder and manslaughter.

The trial court instructed the jury, over objection, that petitioner’s refusal to submit to fingerprinting was a circumstance from which consciousness of guilt could be inferred. The First District Court of Appeal noted that the “instruction appears to be an unnecessary comment on the evidence, and a matter more appropriately argued by counsel,” Whitfield, 433 So.2d at 1287, but affirmed nonetheless, citing cases wherein instructions on flight have been affirmed. We find that the instruction was an impermissible comment evaluating the evidence. See Tanner v. State, 197 So.2d 842 (Fla. 1st DCA), cert. denied, 201 So.2d 898 (Fla.1967). A trial court should scrupulously avoid commenting on the evidence in a case. Lee v. State, 324 So.2d 694 (Fla. 1st DCA 1976). Especially in a criminal prosecution, the trial court should take great care not to intimate to the jury the court’s opinion as to the weight, character, or credibility of any evidence adduced. Seward v. State, 59 So.2d 529 (Fla.1952).

An instruction on flight, permitted in the limited circumstance where there is significantly more evidence against the defendant than flight standing alone, is an exception to the general rule prohibiting the trial court from commenting on the evidence. Plight alone would not support an instruction that such flight is evidence of consciousness of guilt, as it would be no more consistent with guilt than with innocence. Proffitt v. State, 315 So.2d 461 (Fla.1975), aff'd., 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

The Fourth District Court of Appeal in Jackson held that the flight rationale should not be extended. We agree and approve the decision in Jackson. We agree with Judge Ervin’s comment in his dissent in Whitfield that upholding the instruction would allow the exception to swallow the rule.

Given the relatively scanty evidence linking Whitfield to Rivers’ homicide and the proper preservation of the point, we find that the instruction constituted harmful error. Petitioner raises several other points that we need not discuss. The issue forming the basis for our jurisdiction is dispositive. We therefore quash the decision and remand to the district court with directions to remand to the trial court for a new trial.

It is so ordered.

ADKINS, BOYD, OVERTON, MCDONALD and EHRLICH, JJ., concur.

ALDERMAN, C.J., dissents.


author: McDonald, justice.

text:
    BRUNNER ENTERPRISES, INC., Appellant, v. DEPARTMENT OF REVENUE of the State of Florida, Appellee.
    No. 64553.
    Supreme Court of Florida.
    June 14, 1984.

      C. Gary Williams and Robert S. Hightower of Ausley, McMullen, McGehee, Caroth-ers & Proctor, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Joseph C. Mellichamp, III, Asst. Atty. Gen., Tallahassee, and Larry Sartin, Asst. General Counsel, Dept, of Revenue, Tallahassee, for ap-pellee.
   McDonald, justice.

In an unpublished order the First District Court of Appeal has certified this ease as requiring immediate resolution and has certified the following questions as being of great public importance:

(1) WHETHER ASARCO, INC. V. IDAHO STATE TAX COMMISSION, 458 U.S. [307], 102 S.Ct. 3103 (1982), 73 L.Ed.2d 787, IS APPLICABLE TO THE “FINAL JUDGMENT ON ENTRY OF MANDATE” ENTERED BY THE LOWER COURT IN THIS CASE.
(2) DID DEPARTMENT OF REVENUE V. BRUNNER ENTERPRISES, INC, 390 So.2d 713 (FLA.1980) REQUIRE THE TRIAL COURT TO DETERMINE, UNDER THE STANDARDS ENUNCIATED IN ROGER DEAN ENTERPRISES, INC V. DEPARTMENT OF REVENUE, 387 So.2d 358 (FLA.1980), AFTER PERMITTING AN EVIDENTIARY HEARING IF DEEMED NECESSARY, WHETHER JUSTIFICATION EXISTED FOR DEVIATION FROM THE THREE-FACTOR APPORTIONMENT FORMULA.

We have jurisdiction pursuant to article V, section 3(b)(5), Florida Constitution. We answer the first question in the affirmative and find it unnecessary to address the second question.

Brunner Enterprises, Inc., is a Delaware corporation with its principal place of business in Illinois. During the fiscal years ending September 30, 1973 and September 30, 1974, Brunner owned and operated citrus groves in several Florida counties through one of its divisions. In April 1976 the Department of Revenue (DOR) assessed a tax deficiency against Brunner for failing to include investment income earned in Illinois in its Florida corporate income tax base for fiscal years 1973 and 1974. On November 9, 1976 Brunner brought suit to challenge the assessment, claiming that income earned on an out-of-state sale of stock by a foreign corporation is not taxable in Florida. The district court ultimately certified to this Court issues raised by Brunner’s contention.

In Department of Revenue v. Brunner Enterprises, Inc., 390 So.2d 713 (Fla.1980), we held that the gain from an out-of-state sale of stock by a foreign corporation doing business in Florida is taxable under the Florida Corporate Income Tax Code and that the three-factor formula method should be used to calculate the amount of income to be included in a foreign corporation’s tax base. Based on our holding, we quashed the summary judgment that had been granted in favor of Brunner and remanded the case for further proceedings consistent with our decision. Approximately two years passed before any further litigation occurred in this case.

During the respite in proceedings, the United States Supreme Court reached a decision directly contrary to our holding in DOR v. Brunner. In ASARCO, Inc. v. Idaho State Tax Commission, 458 U.S. 307, 102 S.Ct. 3103, 73 L.Ed.2d 787 (1982), the Court held that the inclusion of out-of-state income from intangibles in a corporation’s tax base and the use of Idaho’s similar three-factor formula method of apportionment absent a showing of a unitary business violates the federal due process clause. Less than a week after the issuance of ASARCO, Brunner moved for a summary judgment based on that case. At that time DOR moved to strike Brunner’s request for a summary judgment and filed a motion to enforce the entry of mandate. The trial judge determined that all the issues had been resolved in our decision, and, therefore, there was nothing left for him to do but to grant DOR’s motion. Brunner appealed the trial court’s decision to the First District Court of Appeal which certified to this Court the two issues raised by the appeal.

Simply stated, the first question that the district court has asked us to address is whether the law of the case as established by our previous decision should be changed as a result of the United States Supreme Court’s decision in ASARCO. We answer this question in the affirmative, but, before we explain our reasoning, we wish to acknowledge the propriety of the circuit court judge’s actions. Lower courts cannot change the law of the case as decided by this Court or, alternatively, by the highest court hearing a case. Beverly Beach Properties v. Nelson, 68 So.2d 604 (Fla.1953); Goodman v. Olsen, 365 So.2d 393 (Fla.3d DCA 1978), cert. denied, 376 So.2d 74 (Fla.1979). We are the only court that has the power to change the law of the case established by this Court. Additionally, it is a well-settled rule of law that “the judgment of an appellate court, where it issues a mandate, is a final judgment in the cause and compliance therewith by the lower court is a purely ministerial act.” O.P. Corp. v. Village of North Palm Beach, 302 So.2d 130, 131 (Fla.1974). The trial.judge, therefore, correctly enforced the mandate, even though it conflicted with ASARCO.

It is the general rule in Florida that all questions of law which have been decided by the highest appellate court become the law of the case which, except in extraordinary circumstances, must be followed in subsequent proceedings, both in the lower and the appellate courts. Greene v. Massey, 384 So.2d 24 (Fla.1980). Earlier in the development of the law of the case doctrine there was uncertainty concerning whether an appellate court that had determined the law of the case could modify or reverse its decision on a subsequent appeal. See Family Loan Co. v. Smetal Corp., 123 Fla. 900, 903, 169 So. 48, 49 (1936) (whether a prior decision is sound or erroneous is irrelevant because the court on a subsequent appeal is “without authority to review or reverse what it has heretofore decided as the law of [a] case, even if it were so inclined”) (emphasis added); McGregor v. Provident Trust Co., 119 Fla. 718, 728, 162 So. 323, 327 (1935) (“the questions of law decided on appeal to a court of ultimate resort must govern the case ... and will seldom be reconsidered or reversed”) (emphasis added). In 1965, however, this Court laid to rest any uncertainty regarding an appellate court’s power to change the law of the case that it had established by reversing Family Loan Co. and all decisions similar to it and by holding that an appellate court has the authority to reconsider a previous ruling that established the law of the case. Strazzulla v. Hendrick, 177 So.2d 1 (Fla.1965). As stressed in Strazzulla, no party is entitled as a matter of right to have the law of the case reconsidered, and a change in the law of the case should only be made in those situations where strict adherence to the rule would result in “manifest injustice. Id. at 4 (quoting Beverly Beach Properties, 68 So.2d at 608).

An intervening decision by a higher court is one of the exceptional situations in which a court will entertain a request to modify the law of the case. Strazzulla. In the instant case, if ASARCO had been decided prior to DOR v. Brunner, we would have been bound to follow the Supreme Court’s pronouncement, and this case would have been decided differently. We could not have subjected Brunner’s investment income earned in Illinois to the Florida Corporate Income Tax because Brunner’s ownership of citrus groves in Florida did not constitute part of a unitary business. ASARCO, 458 U.S. 307, 102 S.Ct. 3103, 73 L.Ed.2d 787. See Mobil Oil Corp. v. Commissioner of Taxes, 445 U.S. 425, 100 S.Ct. 1223, 63 L.Ed.2d 510 (1980). Because we once again have jurisdiction of this case and, therefore, the opportunity to change the law of the case, it would be in the interest of justice to conform our earlier decision to ASARCO. Thus, we hold that out-of-state investment income earned by a foreign corporation doing business in Florida is only taxable under the Florida Corporate Income Tax Code if the Florida enterprise is part of a unitary business.

Accordingly, we reverse DOR v. Brunner and remand this cause with directions to enter judgment in favor of Brunner. Having given our answer to the first certified question, it is unnecessary to address the second issue.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, EHRLICH and SHAW, JJ., concur.

ADKINS, J., concurs in result only.

       The three-factor formula is a method of calculating taxes by using the taxpayer’s property value, payroll, and sales in a mathematical formula. § 214.71, Fla.Stat.