author: ADKINS, Justice. OVERTON, Justice,

text:
    GULF POWER COMPANY, Appellant, v. FLORIDA PUBLIC SERVICE COMMISSION, and Citizens of the State of Florida, Appellees.
    No. 63729.
    Supreme Court of Florida.
    July 12, 1984.

      C. Roger Vinson and G. Edison Holland, Jr. of Beggs & Lane, Pensacola, for appellant.
    William S. Bilenky, Gen. Counsel, Roger Howe, Legal Director and Kathleen Villa-corta, Associate Gen. Counsel, Florida Public Service Com’n, Tallahassee, and Jack Shreve, Public Counsel and Suzanne S. Brownless, Associate Public Counsel, Tallahassee, for appellees.
   ADKINS, Justice.

We have for review the Florida Public Service Commission’s order no. 11498, issued January 11, 1983, in which the Public Service Commission (hereinafter the PSC) authorized a rate increase sought by Gulf. Power Company (hereinafter Gulf). We have jurisdiction pursuant to article V, section 3(b)(2), Florida Constitution.

In June, 1982, Gulf filed its petition for a rate increase that would provide $36,944,-000 additional annual revenue. In January, 1983, the PSC, in order no. 11498, authorized an increase in gross revenues of $3,366,-000 annually. Gulf then filed a petition for reconsideration which was denied by the PSC in order no. 11936. This review involves only two aspects of the PSC’s order no. 11498: first, the downward adjustment made by the PSC based on Gulf’s unused capacity, which exists as a result of Gulf’s 50% ownership in two units at Plant Daniel located in Mississippi; and, second, the PSC’s adjustment to the coal inventory levels used in Gulfs determination of working capital.

Gulf has petitioned for rate relief seven times in the last twelve years. Each case required the Commission to deal with Gulfs status as a wholly-owned subsidiary of the Southern Company. Southern is a holding company which wholly owns four electric utilities and a service company. Southern can be viewed as a single utility company with generating plants situated in four states.

Each subsidiary company plans for construction to serve its own load but the plans are coordinated centrally through Southern. Units are added according to an agreed upon plan. All sales to non-affiliated companies are made by Southern, not the individual subsidiaries. The Intercom-pany Interchange Contract (hereinafter, IIC), is a contract which Gulf entered into and which guides its interactions with other Southern subsidiaries. Gulf contributes its electrical generation to a pool to meet the needs of all four companies’ customers.

Gulf raises the following arguments in its appeal: 1) that the adjustment of $5,391,931 for “unused capacity” is arbitrary and unsupported by competent substantial evidence; 2) that Gulf Power Company has no “unused capacity” and no excess generating reserves, and therefore, the penalty imposed by the commission is unjustified and improper; 3) that the coal inventory adjustment to the working capital component of rate base made by the commission was erroneous and contrary to the evidence; and 4) that the commission’s denial of rates that will produce a reasonable rate of return for Gulf Power Company constitutes confiscation in violation of the fifth and fourteenth amendments of the Constitution of the United States, articles I and X of the Constitution of the State of Florida, section 366.041, Florida Statutes (1981), and exceeds its authority. We disagree with the appellant’s assertions and affirm the order of the PSC.

Plant Daniel is an electric generating facility comprised of two coal-fired generating units, each rated at approximately 500 megawatts. Plant Daniel was originally designed to satisfy the generating needs of Gulf’s sister company, Mississippi Power Company, which was responsible for the plant’s design, construction and fuel supply. Mississippi Power’s generation needs were not as great as first anticipated and Gulf was offered a joint ownership. In 1975, Gulf agreed to purchase an undivided one-half interest in the two units to be constructed. Demand did not increase as expected and, in 1976, Gulf and Mississippi agreed to defer the in-service date of Unit 2 from 1979 to 1980. Mississippi Power would complete and own Unit 1 when it became operational in 1977. Thereafter, when Unit 2 was completed, Gulf and Mississippi would transfer assets as necessary to effectuate a joint 50% ownership in each unit. Unit 2 was again deferred and began commercial operation in June 1981.

Gulf’s purchase of the one-half interest in Plant Daniel increased its generating capacity by 511 megawatts. Gulf sold 238 megawatts to Florida Power and Light Company and Jacksonville Electric Authority through a unit sales contract. Another 186 megawatts were sold to Gulf’s sister companies through the ICC. This left 87 megawatts to serve Gulf’s customers.

Under the IIC, the capacity of the Southern system is equalized among the four operating companies. If, at the time of the peak demand on the system, the excess of generating capacity over the actual demand on the system was 23%, those companies whose reserve margins were below 23% would be required to purchase from those utilities whose reserve margins were above 23%, sufficient additional capacity to raise their reserve margin to that level. Each company supports the system-average reserve margin. These purchases and sales of capacity are made at average embedded cost. In Gulf’s case, the addition of Plant Daniel in 1981 changed Gulf from a net purchaser to a net seller of capacity under the ICC.

In the PSC’s order no. 11498 it determined, among other things, that due to faulty load forecasting, Gulf had failed to recognize the extent of the excess capacity which would be generated as a result of the purchase of Plant Daniel. The PSC found that this failure resulted in the sale of 186 megawatts to Gulf’s sister companies at a price below the cost of generation of that capacity. It further found that Gulf’s retail customers should not be required to make up the difference in the form of increased rates. As a result of these conclusions the PSC adjusted Gulf’s net income upward by the amount of $5,391,931, which, in turn, reduced its allowable rate increase.

Gulf asserts that the PSC’s adjustment of $5,391,931 for unused capacity is arbitrary and unsupported by competent substantial evidence. It claims that IIC capacity payments are calculated at 16% on equity on embedded costs while retail rates authorized by the PSC are 15.85% on equity on embedded costs; therefore, the PSC is criticizing Gulf for selling capacity too cheaply when, in actuality, it is priced higher under the IIC than under the retail rates set by the PSC. Gulf states that the PSC has also attempted to justify its action by determining that there was an absence of proof that incremental-cost sales from Plant Daniel could not have been made, and that there is no evidence to support either of the PSC’s justifications for its action.

Gulf relies on Madison Gas & Electric Co. v. Public Service Commission, 109 Wis.2d 127, 325 N.W.2d 339 (1982), to support its argument. That court found that the adjustment made by the Wisconsin PSC was not supported by substantial evidence and that the shifting of a part of the cost of maintaining the utility’s excess capacity from the ratepayers to the shareholders was arbitrary and outside the PSC’s discretionary authority. However, the Wisconsin court further stated that it based its decision on the two-step test enunciated in Milwaukee Suburban Transport Corp. v. Public Service Commission, 13 Wis.2d 384, 108 N.W.2d 729 (1961). The court held in that case that the PSC has the authority to shift some of the cost of excess capacity to the transportation company’s shareholders where (1) the excess generating capacity was imprudently acquired, or (2) the excess capacity was not used or useful in serving the public. 13 Wis.2d at 393, 108 N.W.2d at 734. In Madison Gas the court found that there had been no examination based on either of those two requirements. Because of the absence of a reasoned determination of who shall bear the burden of paying for all or part of excess capacity, the court found the PSC’s adjustment to be arbitrary.

We find that Gulf’s reliance on Madison Gas in the instant case is misplaced. Here, the PSC has undertaken a reasoned determination and we find that its conclusions are not arbitrary. The PSC stated in its order no. 11936 denying Gulf’s petition for rehearing of order no. 11498:

As we said in Order No. 11498, we do believe that Gulf’s purchase of a portion of Plant Daniel will benefit the rate payers in the long run. However, the issue in this ease is whether Gulf carried its burden of proof as to whether it took every reasonably available prudent action to minimize the adverse short-term consequences of purchasing a portion of Plant Daniel. For the reasons set forth below, we do not believe Gulf carried its burden of proof on this issue.
In short, Gulf failed to prove that, if it had made a timely effort to sell an additional 186 MW off-system at marginal cost, it would have been unable to do so. While Mr. Parsons testified extensively concerning the Company’s efforts to make off-system sales, his testimony missed the point because he assumed that Gulf’s marketing efforts commenced in a timely fashion. This assumption was contradicted by the information elicited during the cross-examination of Mr. Oerting. During Mr. Oerting’s cross-examination, it was shown that Gulf was repeatedly advised by the Commission' that its forecasts of future load growth contained in its 1975, 1976 and 1977 Ten Year Site Plans were too high for planning purposes.
The consequences of Gulfs reliance on overstated load forecasts is clearly demonstrated by the record.
Our point is that, had Gulf heeded the advice of the Commission in 1977, they would have realized much earlier than late 1979 that not all the capacity from Plant Daniel would be needed in 1981. The Company could then have been in a position to either defer Plant Daniel to a later in-service date or to pursue the sale of a larger amount of unit power to other utilities.
this rate case, Gulfs rate payers are being asked by it to pay for a portion of Plant Daniel not presently needed to serve them as a result of the Company’s imprudent load forecasting. This we will not allow and therefore we reaffirm the adjustment for unused capacity we made in this Order No. 11498.

We have repeatedly stated the standard of judicial review by which we are guided when we review PSC orders. We will not overturn an order of the PSC because we would have arrived at a different result had we made the initial decision and we will not reweigh the evidence. Our task is to determine whether competent substantial evidence supports a PSC order. Citizens v. Public Service Commission, 485 So.2d 784 (Fla.1983); Citizens v. Public Service Commission, 425 So.2d 534 (Fla.1982); Shevin v. Yarborough, 274 So.2d 505 (Fla.1973).

The PSC was presented with conflicting evidence. It understood Gulfs proposal, identified its concerns, and gave Gulf every opportunity to explain why its customers should support more of Plant Daniel than the pro rata share of those units committed to their service. Gulf did not provide an answer that was satisfactory to the PSC.

Gulf states that capacity under the IIC is priced higher than under retail rates set by the Commission. The return may be higher, but there is no evidence that the actual rates, even on an embedded cost basis, are higher. In fact, Gulf sells Plant Daniel capacity costing $371 per kilowatt at $200 per kilowatt through the IIC. The IIC, pricing according to average embedded costs, does not recognize the full price of Plant Daniel, and the difference has to be picked up by either the ratepayers or the stockholders. Had Gulf not relied on improper forecasts or had it sold all of Plant Daniel through unit power sales, it would not have had to rely upon the IIC to market the capacity below cost. The PSC resolved this dilemma in the ratepayers favor.

There is no clear consensus among the various jurisdictions on the issue of excess capacity. See 9 PUR Digest 3d Valuation § 211 (1983). The decision whether or not to allow excess capacity to be included in the rate base, in most cases, hinges on whether imprudent managerial decisions created the capacity which is not used or useful at the time. See, e.g., Re Dayton Power and Light Co., 45 PUR 4th 549 (Ohio PSC 1982) (no adjustment was made for the utility’s excess capacity because there was no showing that applicant’s capacity planning had been imprudent); Re Otter Trail Power Co., 44 PUR 4th 219 (N.D. PSC 1981) (an electric utility was required to assume some risk for erroneous load forecasts as there must be some incentive for the pool and the individual utility member to strive continuously for accurate and precise management of the timing of new base-loan plants); Re Kansas City Power and Light Co., 38 PUR 4th 1 (Mo. P.S.C. 1980) (imprudent management caused excess capacity to be excluded from rate base, among other things, when management knew there would be excess capacity when the plant was completed and the company sold capacity at a loss to non-jurisdictional customers). The record demonstrates that the PSC did find imprudent managerial decisions resulting from faulty load forecasting. We agree with that finding and the PSC’s resulting adjustment.

Gulf’s second contention is that there was actually no excess capacity. We disagree. After Gulf’s sale of 238 megawatts through unit power sales and 186 megawatts through the IIC, 87 megawatts of Plant Daniel remained to serve Gulfs customers. This placed Gulfs reserve margin at 23%, a reasonable level. The $5,391,931 adjustment does not apply to these 87 megawatts; it applies to the additional cost of the 186 megawatts sold to sister companies that Gulf expects its customers to make up through retail rates.

One possible area of dispute in the PSC’s adjustment of excess capacity is whether all sales of capacity through the IIC should be assumed to emanate from Plant Daniel. This is however a reasonable conclusion from the evidence before the PSC. Before Plant Daniel, Gulf purchased capacity; after Plant Daniel, Gulf sold capacity. The fact that Gulf chose to sell this capacity through the IIC at the average cost of all of its units does not alter the fact that Plant Daniel was the incremental addition that made this possible.

Gulf next argues that the PSC erred in not allowing it to include in rate base all of its claimed fuel inventory. The PSC made adjustments to Gulfs proposed coal inventory which was to be included in its working capital allowance. Order no. 11498 stated in part:

Fuel inventory is an element of working capital and, as such, the Company should earn a return on its investment in fuel stocks that are reasonably and prudently included in fuel inventory. Determining the amount of fuel inventory to include in the rate base is not an easy task. On one hand, there is the overriding concern that fuel inventory be adequate to reasonably ensure the continuous generation of electricity to avoid disruptions of service. On the other hand, is the desire to not require the ratepayers to support investment in fuel inventory beyond the amount necessary for the dependable operation of the generating system.
... Mr. Parsons testified that the 60-day nameplate policy has been continued not on the basis of any objective study weighing the importance and economic value of those factors; rather, the policy is based on the collective wisdom of the company’s management.
With all deference to Gulf’s management, a policy followed by management that has such a tremendous financial impact on ratepayers must be substantiated with more than an assertion that it is the result of collective management wisdom. We do not wish to substitute our judgment for that of management. However, we insist that management’s judgment be substantiated in a way that permits intelligent review of it. In this context, this can best be accomplished by performance of an analysis or study that identifies all of the major factors that influence development of a coal inventory policy, indicates the relative weight that should be attached to each factor, and evaluates the benefits and costs, in light of these factors, associated with a range of alternate coal inventory levels. The reasons why a particular factor is selected, why a particular weight is attached to it, and how it is included in a cost benefit analysis of alternative inventory levels should be clearly stated. In the absence of that kind of empirical support for its position, we find that the Company failed to carry its burden of proof with respect to the soundness of its 60-day nameplate policy.
Staff also urged us to reduce inventory by an amount necessary to bring it down to a 90-day projected burn level. A 90-day projected burn policy would require the Company to maintain sufficient coal on hand to meet the expected burn for the immediately succeeding 90 days. While the 60-day nameplate level is a relatively static target, a 90-day projected burn policy implies a rolling adjustment. Adoption of Staff’s recommendation would reduce inventory to 756,649 tons with a value of $46,812,917. However, we reject Staff’s recommendation for the same reason that we rejected the Company’s 60-day nameplate policy, namely, that it is not supported in the record by the sort of objective evidence that would permit us to make an intelligent assessment of it. Staff must provide the same sort of analysis in support of its proposed inventory policy that we earlier required from the Company.
We are left then with two proposed inventory values, one of $64,801,764 based on a 60-day nameplate level, and the other of $46,812,917, based on a 90-day projected burn level, the difference between the two being $17,988,847. Neither of the two policies is supported by sufficient evidence to allow us to say it ought to be the policy followed by the Company. We, therefore, will reduce the Company’s proposed 60-day nameplate value by one-half of the difference between it and the Staffs proposed 90-day projected burn value, $8,994,424. We are in effect reducing the Company’s proposed inventory value because the Company failed to prove that its 60-day nameplate inventory policy was a reasonable and prudent policy. In so doing, we neither endorse nor reject any particular coal inventory policy; the record does not permit us to determine what the Company’s coal inventory policy ought to be. However, we cannot permit the Company to benefit from its failure to carry its burden of proof. Therefore, we have reduced inventory to a level that we believe to be within a zone of reasonableness. We hope that we will receive a full evidentiary presentation, as outlined above, in the Company’s next rate case so that we may lay this issue to rest.

The PSC was confronted with competing testimony from Gulf and the commission staff regarding what is to be a reasonable coal inventory. It is the PSC’s prerogative to evaluate the testimony of competing experts and accord whatever weight to the conflicting opinions it deems necessary. See United Telephone Co. v. Mayo, 345 So.2d 648, 654 (Fla.1977). Although the PSC rejected both Gulf’s 60-day nameplate policy and the staff’s 90-day projected burn level as necessarily proper, it was presented with sufficient evidence to enable it to choose a reasonable alternative. Inasmuch as the PSC was not convinced that Gulf’s position was supported by substantial competent evidence, it was left with three possible alternatives; to allow Gulf’s fuel inventory proposal without competent substantial evidence, to allow Gulf no coal inventory at all or, to make some other reasonable determination. The PSC properly recognized its responsibility of not only setting fair and reasonable rates but also of “promot[ing] the convenience and welfare of the public and securpng] adequate service or facilities to those reasonably entitled thereto”. § 366.05(1), Fla. Stat. (1981). Cognizant of the fact that Gulf needs coal to fire its base-load facilities, the PSC was precluded by statute and common sense from totally disallowing all funds for coal inventory.

In General Development Utilities, Inc. v. Hawkins, 357 So.2d 408 (Fla.1978), this Court held that the PSC’s selection of an equity/debt ratio, in determining a water company’s request for a rate increase, was arbitrary and violative of due process. That case is distinguishable from the instant one in that we reached our conclusion because the PSC’s decision was based on facts outside the record relating to other utilities generally. Here the PSC made a reasoned judgment based on competent substantial evidence within the record which related specifically to Gulf.

Under section 120.68(12), Florida Statutes (1981), this Court may not now substitute its judgment for the PSC’s own action taken within the statutory range of discretion. See Citizens v. Public Service Commission, 435 So.2d 784 (Fla.1983); Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla.1978). We find that the PSC was within its discretionary authority on this issue.

Gulf’s final argument is that the PSC has • denied it a reasonable rate of return and that such denial constitutes confiscation and violates the United States and Florida Constitutions. We disagree.

If an adjustment is made for excess Plant Daniel capacity and for fuel inventory, a rate of return calculated without that adjustment will be less than the return calculated with it. The legal issue raised is one of confiscation, but Gulfs entitlement to a fair return on equity presumes that it will be tested consistently with the standards under which it was set. Gulf has the option to make expenditures that will not be allowed for regulatory purposes, that will effectively, when disallowed, reduce its return in the market place. But the fact remains that at the approved levels of rate base, capital structure and operating expenses, the approved rate award will afford Gulf the opportunity to earn 15.85% on equity.

This Court has held that the rate base upon which a utility should be afforded an opportunity to earn a return is not every dollar of investment made but only that investment in assets devoted to public service at the time rate base is quantified. United Telephone Co. v. Mayo; Keystone Water Co. v. Bevis, 278 So.2d 606 (Fla.1973). Order no. 11498 allows Gulf an opportunity to earn a return on every dollar of investment in assets committed to provide service to its customers and allows it to include a 23% reserve margin. This includes, at full incremental cost, that portion of Plant Daniel necessary to reach that reserve level. Gulf has not suffered confiscation of its property.

Gulf is correct when it states that that portion of Plant Daniel associated with the 186 megawatts sold under the IIC, along with associated operating and maintenance expenses, has been left in rate base, capital structure and net operating income calculations. Having determined that 186 megawatts of Plant Daniel is above and beyond the capacity necessary to maintain an adequate reserve margin for Gulf, the PSC was faced with several alternatives. It could have excluded the revenues associated with the IIC from test year revenues while adjusting rate base, capital structure and operation and maintenance expenses to also exclude that portion related to the 186 megawatts of Plant Daniel. Alternatively, it could have imputed the $5,391,931 marginal cost revenues associated with the 186 megawatts to the test year by lowering the revenue requirement by that amount, while leaving rate base, capital structure and operation and maintenance expenses the same. This latter alternative was taken by the PSC. It has the net effect of excluding from rate base that portion of Plant Daniel determined to be nonused and useful by present customers. See § 366.06, Fla.Stat. (1981).

Gulf has mischaracterized this $5,391,931 revenue imputation as a penalty. It is, rather, an adjustment to rate base to exclude capacity which is not currently serving customers. It is clearly within the delegated authority of the PSC to make such an adjustment.

Gulf has failed to meet the burden required to overcome the presumption of validity attached to PSC orders and to demonstrate that order no. 11498 is not supported by competent substantial evidence of record or, that it violates the essential requirements of law. City of Tallahassee v. Mann, 411 So.2d 162 (Fla.1981); Surf Coast Tours, Inc. v. Florida Public Service Commission, 385 So.2d 1353 (Fla.1980).

Accordingly, we approve the PSC’s order no. 11498 in all respects.

It is so ordered.

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

OVERTON, J., concurs in part and dissents in part with an opinion.

OVERTON, Justice,

concurring in part, dissenting in part.

I concur with the majority opinion except for that part which holds that the management decision to have a 60-day nameplate level of fuel was not supported by the evidence. I find that conclusion to be erroneous. The determination as to the amount of fuel inventory the utility should have on hand is a management decision which cannot be rejected by the Public Service Commission without a finding that the utility management acted unreasonably in making the inventory decision. In my opinion, the burden is on the Public Service Commission to make a finding of unreasonableness with regard to the inventory decision.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Frank C. OBERHAUSEN, Jr., Respondent.
    No. 64273.
    Supreme Court of Florida.
    July 19, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and David G. McGunegle, Bar Counsel, Orlando, for complainant.
    Frank C. Oberhausen, Jr., in pro. per.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Frank C. Oberhausen, Jr., a member of The Florida Bar, is presently before us 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, the referee’s report and record were duly filed with this Court. No petition for review pursuant to Integration Rule of The Florida Bar 11.09(1) has been filed.

Having considered the pleadings and evidence, the referee recommended that respondent be found guilty and specifically he be found guilty of violating the following Disciplinary Rules of The Florida Bar’s Code of Professional Responsibility: 6-101(A)(3) for neglecting a legal matter entrusted to him for failing to withdraw and leaving the case unattended and 9-102(B)(3) for failing to promptly render an appropriate accounting of the remaining funds to his client through Mr. Wallach, or directly, and to refund the unused portion for almost two years until after the grievance committee hearing. The referee also recommends that respondent be found guilty of violating article XI, Rule 11.02(4) of The Florida Bar’s Integration Rule with respect to failing to promptly account to his client for the funds through Mr. Wal-lach, or directly, and to refund the unused portion for almost two years until after the grievance committee hearing.

The referee recommends that respondent receive a public reprimand without a personal appearance before the Supreme Court, the Board of Governors or the referee.

Having carefully reviewed the record, we approve the findings and recommendations of the referee.

Publication of this opinion m Southern Reporter will serve as the public reprimand.

Costs in the amount of $1,278.64 are hereby taxed against respondent.

It is so ordered.

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


author: SHAW, Justice.

text:
    Timothy BUNNELL, Petitioner, v. STATE of Florida, Respondent.
    No. 64105.
    Supreme Court of Florida.
    July 19, 1984.
    Robert E. Jagger, Public Defender, and Howard L. Crown, Asst. Public Defender, Sixth Judicial Circuit, Clearwater, and G. Robertson Dilg, Sp. Asst. Public Defender, Public Defender Clinic, Stetson College of Law, Orlando, for petitioner.
    Jim Smith, Atty. Gen., and Robert J. Landry and Theda James Davis, Asst. At-tys. Gen., Tampa, for respondent.
   SHAW, Justice.

This petition seeks review of a district court decision, State v. Bunnell, 447 So.2d 228 (Fla. 2d DCA 1983), which expressly upheld the validity of chapter 82-150, Section 1, Laws of Florida (codified as section 843.035, Florida Statutes (Supp.1982)). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Bunnell was charged in county court with obstruction of justice by giving false information in violation of section 843.035. Bunnell moved to dismiss on the ground that chapter 82-150, section 1, Laws of Florida, violated the “one-subject” provision of article III, section 6 of the Florida Constitution. The trial court granted the motion, finding that chapter 82-150 contained two subjects bearing no reasonable relationship to each other. On appeal, the district court reversed, holding that the statute was constitutional in that it did not violate article III, section 6. We disagree and quash the district court decision.

In pertinent part, article III, section 6 provides that “[ejvery law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title.”

The title of chapter 82-150 reads:

An act relating to the Florida Council on Criminal Justice; creating s. 843.185, [now section 843.035] Florida Statutes, prohibiting the obstruction of justice by false information; providing a penalty; amending s. 23.152(3), (4) and (8), Florida Statutes, changing and reducing the membership of the council; providing for nonvoting representatives of members; providing for review and repeal of Part VIII of Chapter 23, Florida Statutes, relating to the “Florida Criminal Justice Council Act” in accordance with the Regulatory Sunset Act; providing an effective date.

Section 1 of the act creates section 843.185 which reads:

843.185 Obstruction by false information. — Whoever in any manner knowingly gives a false name or a false address with intent to obstruct the due execution of the law, or with the intent to intimidate, hinder, or interrupt any law enforcement officer or beverage enforcement agent in the legal performance of his duty under the construction or laws of this state, whether such obstruction is effected or not, is guilty of a misdemean- or of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.-084.

Section 2 of the act amends section 23.152, Florida Statutes (1981), relating to the Florida Council on Criminal Justice. Section 3 repeals section 23.152 and other sections relating to the Florida Council on Criminal Justice, effective 1 July 1983, subject to “sunset” review under section 11.61, Florida Statutes (1981). Section 4 provides an effective date of 1 July 1982.

The purpose of the requirement in article III, section 6 that “the subject shall be briefly expressed in the title” is to provide notice to all concerned of the general nature and substance of the act. Kirkland v. Phillips, 106 So.2d 909 (Fla.1958). We agree with the district court that the title provides adequate notice and is not constitutionally infirm for that reason.

The subject matter of the act is another matter. We recognize the applicability of the rule that legislative acts are presumed to be constitutional and that courts should resolve every reasonable doubt in favor of constitutionality. Hanson v. State, 56 So.2d 129 (Fla.1952). Nevertheless, it is our view that the subject of section 1 has no cogent relationship with the subject of sections 2 and 3 and that the object of section 1 is separate and disassociated from the object of sections 2 and 3. State ex rel. Landis v. Thompson, 120 Fla. 860, 163 So. 270 (1935); and Williams v. State, 100 Fla. 1054, 132 So. 186 (1930). We hold that section 1 of 82-150 was enacted in violation of the one-subject provision of article III, section 6, Florida Constitution.

The district court decision is quashed and the case remanded for proceedings consistent with this opinion.

It is so ordered.

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


text:
    Robert REESE, Petitioner, v. STATE of Florida, Respondent.
    No. 64620.
    Supreme Court of Florida.
    July 19, 1984.
    Jerry Hill, Public Defender, and Deborah K. Brueckheimer, Asst. Public Defender, Tenth Judicial Circuit, Clearwater, for petitioner.
    Jim Smith, Atty. Gen., and Charles Core-es, Jr., Asst. Atty. Gen., Tampa, for respondent.
   SHAW, Justice.

We have before us by petition for review Reese v. State, 440 So.2d 654 (Fla. 2d DCA 1983), which expressly declared constitutionally valid section 843.185 [renumbered section 843.035], Florida Statutes (Supp. 1982). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Reese was charged in Count IV of an information with obstruction of justice by giving false information in violation of the aforementioned statute. He moved to dismiss Count IV, arguing that chapter 82-150, Laws of Florida, which created section 843.185, violated the one-subject provision of article III, section 6 of the Florida Constitution. The motion was denied, and Reese pleaded nolo contendere to the charge under Count IV, reserving the right to appeal the trial court's denial of the motion.

The district court affirmed, following its resolution of the identical issue in State v. Bunnell, 447 So.2d 228 (Fla. 2d DCA 1983). On petition for review of Bunnell, Bunnell v. State, 453 So.2d 808 (Fla.1984), decided this day, we held that section 1 of chapter 82-150 does indeed violate the constitutional one-subject provision, rendering section 843.035 unconstitutional, and we quashed the district court decision in Bun-nell.

Accordingly, on the authority of this court’s decision in Bunnell v. State, we quash the district court decision and remand for proceedings consistent with this opinion.

It is so ordered.

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


author: EHRLICH, Justice.

text:
    STATE of Florida, Petitioner, v. James E. WATSON, Respondent.
    No. 64480.
    Supreme Court of Florida.
    July 19, 1984.

      Jim Smith, Atty. Gen., and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for respondent.
   EHRLICH, Justice.

This case is before us as conflicting directly and expressly with decisions of other district courts of appeal. The district court acknowledged this interdistrict conflict. Watson v. State, 437 So.2d 702 (Fla. 4th DCA 1983). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

The district court affirmed Watson’s conviction and ninety-nine-year sentence for robbery with a firearm, but it reversed the trial court’s retention of jurisdiction over the first third of that sentence. The court noted that life is the maximum sentence the defendant could receive under section 812.13(2)(a), Florida Statutes (1981). According to section 947.16(3), Florida Statutes (1981), the trial court could retain jurisdiction over one-third of the maximum sentence which the statute authorized. The district court reasoned that the thirty-three years of retained jurisdiction greatly exceeded one-third of a reasonable life expectancy for the defendant and thus was improper.

Some months after this decision issued, this Court addressed the same issue in Harmon v. State, 438 So.2d 369 (Fla.1983), and upheld retention of jurisdiction over the first third of each of six consecutive one-hundred year sentences. We find that Harmon controls and thus disapprove the decision of the district court.

Respondent raises the issue of the sufficiency of the evidence to support the finding that a firearm was used in the commission of the robbery. We approve the district court’s construction and application of the statute to the case before it, for the reasons expressed by that court.

Accordingly, the decision of the district court is approved in part and disapproved in part, and the sentence of the trial court is reinstated in its entirety;

It is so ordered.

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


text:
    GULFSTREAM PARK RACING ASSOCIATION, INC., Petitioner, v. HIALEAH, INC., Respondent.
    No. 64686.
    Supreme Court of Florida.
    July 19, 1984.
    Cynthia S. Tunnicliff and George N. Me-ros, Jr. of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tallahassee, and David S.Romanik of Landefeld & Romanik, Hollywood, for petitioner.
    Joseph P. Klock, Jr., Gerry S. Gibson and John W. Little, III of Steel, Hector & Davis, Miami, for respondent.
    David M. Maloney, Deputy General Counsel, Department of Business Regulation, Tallahassee, amicus curiae for The Florida Pari-Mutuel Com’n, Dept, of Business Regulation.
    Marty Steinberg and Robin A. Jablo of Holland & Knight, Miami, amicus curiae for City of Hialeah.
    James C. Pilkey of Taylor, Brion, Buker & Greene, Miami, amicus curiae for Tropical Park, Inc.
   SHAW, Justice.

This cause is before us pursuant to the Third District Court of Appeal’s determination that its decision “passes upon questions of great public importance concerning the standards applicable to the award of racing dates in Florida, including the viability and application of the ‘rotation rule’ in making that determination.” Hialeah, Inc. v. Department of Business Regulation, 442 So.2d 1120, 1120 (Fla. 3d DCA 1983). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Although the issue of which track should have been awarded the 1983-84 middle racing dates is now moot, we have granted the petition for review in order to answer the certified question for the district court.

We recently addressed the parties’ annual battle for the favored middle racing dates in Gulfstream Park Racing Association v. Department of Business Regulation, 441 So.2d 627 (Fla.1983) (Gulfstream 1983). In that opinion we expressed having no illusion that our efforts would change the fact of an annual battle. We hope, however, that the present decision will offer sufficient guidance so that a jurisdictional basis for this Court’s involvement in future disputes will seldom arise.

In Gulfstream 1983 we approved the decision of the Third District Court in Gulfstream Park Racing Association v. Department of Business Regulation, 443 So.2d 113 (Fla. 3d DCA 1983), upholding the constitutionality of section 550.081, Florida Statutes (Supp.1980). The case was before us on conflict jurisdiction because the Fourth District Court of Appeal had held the statute to be a standardless, and therefore unconstitutional, delegation of legislative authority to the Florida PariMutuel Commission. Hialeah, Inc. v. Gulfstream Park Racing Association, 428 So.2d 312 (Fla. 4th DCA 1983). We held that the legislature, in enacting chapter ■80-57, Laws of Florida (1980), had adopted the seven criteria for consideration in determining the allocation of racing dates set forth in Hialeah Race Course, Inc. v. Department of Business Regulation, 270 So.2d 366, 369 (Fla.1972) (Hialeah 1972):

(a) The interest of the state;
(b) The interest of the track owner;
(c) The good will;
(d) The quality of the horses;
(e) The track facilities;
(f) Geography; and
(g) Skill in management.

Following this Court’s decision in Gulf-stream 1983, the Commission on December 16, 1983, held a hearing to determine which track should be awarded the 1983-84 middle dates based on the enumerated criteria. The Commission determined that it was Gulfstream. Hialeah then petitioned the Third District Court for a writ of mandamus. The district court treated the petition as an appeal of final agency action and reversed, finding “there has been no demonstration of the ‘strong and compelling reasons’ required to justify a departure from the rule of rotation which we deem to remain a part of the pertinent law of Florida,” Hialeah, 442 So.2d at 1120, citing Justice Ervin’s concurrence in Hialeah 1972 and two district court cases. This holding was a misapplication of law.

As we stated in Gulfstream 1983, 441 So.2d at 629, the Commission is “vested with the nondelegable discretionary power to allocate racing dates The Commission is to exercise its discretion by application of the seven criteria enumerated in Hialeah 1972 and Gulfstream 1983. If the Commission finds that under the criteria the evidence clearly points to the allocation of the middle dates to one particular track, then the Commission will make the obvious award. If, on the other hand, application of the criteria does not point to the award of one track over the other(s), the Commission in fairness should rotate, that is, award the middle dates to the track whose last allocation of the middle dates was most distant in time. It is only when the tracks are in a substantially equal position that the rotation issue arises. We alluded in dicta to the possibility of a rotation system in Justice Ervin’s majority opinion in Gulfstream Park Racing Association v. Division of Pari-Mutuel Wagering, 253 So.2d 429, 431 (Fla.1971). Justice Ervin, in his concurring opinion the following year in Hialeah 1972, explained the function of rotation:

It was implicit from our guidelines [in Gulfstream Park] that if one of the tracks predominated over the other ... the next year’s middle dates (1973) would be given to the predominant track. However, if neither track substantially predominated over the other, the implication was clearly left in our opinion that a rotation of the middle dates in alternate years between the two tracks was in order.

Hialeah 1972, 270 So.2d at 372.

Rotation is not something departed from, but rather something resorted to, after application of the seven factors has failed to result in identification of the proper track to be awarded the middle dates. This is not to say that the legislature could not establish rotation as a rule to be presumptively followed. It is simply that the legislature has not chosen to do so. Therefore the Commission must exercise its discretion according to the standards that we held in Gulfstream 1983 that the legislature implicitly adopted.

The district court should have reviewed the record to determine whether there was competent substantial evidence to support the Commission’s findings of fact. However, expending scarce judicial resources for such a determination now, by either this Court or the district court, would be poor stewardship. It can be predicted that the 1985 middle dates contest will offer ample opportunity for a meaningful review of a Commission award of middle racing dates. We trust we have adequately addressed the district court’s certified question.

The decision of the district court is quashed.

It is so ordered.

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


author: McDonald, justice.

text:
    John J. HOY, Petitioner, v. George FIRESTONE, Secretary of State of the State of Florida, Respondent.
    No. 65598.
    Supreme Court of Florida.
    July 24, 1984.

      John J. Hoy, West Palm Beach, pro per.
    Jim Smith, Atty. Gen., Mitchell D. Franks, Chief Trial Counsel and James W. Sloan, Asst. Atty. Gen., Tallahassee, for respondent.
    Joseph W. Little, Gainesville, and Marshall R. Cassedy of McFarlain, Bobo, Stern-stein, Wiley & Cassedy, Tallahassee, inter-venor for Nath C. Doughtie.
   McDonald, justice.

John Hoy petitions for a writ of mandamus directing the secretary of state to place Hoy’s name on the September ballot for the 1984 nonpartisan judicial elections for a newly created circuit judgeship in the fifteenth judicial circuit. We have jurisdiction, article V, section 3(b)(8), Florida Constitution, but refuse to issue the writ.

Chapter 84-303, Laws of Florida, provides for additional judges in the second, fifth, sixth, eighth, ninth, tenth, eleventh, fifteenth, and twentieth judicial circuits and in Broward, Dade, Hillsborough, Indian River, Palm Beach, Pasco, and Seminole counties. Ch. 84-303, §§ 6, 7, Laws of Fla. Section 8 of chapter 84-303 provides that the new judges in all but the eighth and fifteenth circuits and Palm Beach County “shall be elected in the nonpartisan elections in 1984 and shall take office on the first Tuesday after the first Monday in January, 1985.” The effective date for all of the act except section 8, which contains its own effective date, is October 1, 1984. Ch. 84-303, § 9, Laws of Fla.

The nonpartisan judicial elections are scheduled for September 4, 1984, with the qualifying period running from July 16 through July 20, 1984. Hoy, an elector of the State of Florida, a resident of Palm Beach County, and a member of The Florida Bar, tendered the qualifying papers and fees for the new judgeship in the fifteenth circuit on July 16. The elections division, however, refused to accept Hoy’s papers and fees, being of the opinion that the office of additional judge for the fifteenth circuit was not to be filled by election. Hoy then brought his petition before this Court.

We agree with the secretary of state’s office and hold that the legislature, when creating these offices, intended that the additional judicial offices in the eighth and fifteenth circuits and in Palm Beach County are to be filled by gubernatorial appointment rather than by election. We find no justification for this Court to interfere with that decision.

A vacancy in office occurs upon the creation of an office. Art. X, § 3, Fla. Const. Article V, section 11(b) of the Florida Constitution provides in part:

The governor shall fill each vacancy on a circuit court or on a county court by appointing for a term ending on the first Tuesday after the first Monday in January of the year following the next primary and general election, one of not fewer than three persons nominated by the appropriate judicial nominating commission.

Because the legislative enactment creating the new judicial offices in the eighth and fifteenth circuits and in Palm Beach County is effective on October 1, 1984, these offices will come into existence between the current year’s primary and general elections. These offices, therefore, should be filled by appointment for terms to end in January 1987.

A similar result obtained in 1982 when the legislature enacted chapter 82-238, Laws of Florida. Sections 2 and 3 of that act created numerous new judgeships. Section 5, however, directed that the holders of three of the new offices be elected, to take office in January 1983. According to section 8, on the other hand, everything but those three offices became effective on October 1, 1982. Chapter 84-303 is exactly the same as chapter 82-238 in this respect, and we find that the currently complained-of act is a proper exercise of legislative power.

In support of his contention that the new judges in the eighth and fifteenth circuits and in Palm Beach County should be elected Hoy relies on Spector v. Glisson, 305 So.2d 777 (Fla.1974), and Judicial Nominating Commission, Ninth Circuit v. Graham, 424 So.2d 10 (Fla.1982). In Spec-tor a justice of the Supreme Court resigned in February 1974, effective in January 1975. We held that the future vacancy created by this unconditional resignation should be filled through election from the 1974 ballot. In the more recent case deaths and resignation occasioned three judicial vacancies in the ninth circuit and Orange County which occurred before the September primary. The governor ordered special elections to refill these vacancies, but the ninth circuit’s nominating commission sought a writ of mandamus directing filling of the offices by appointment. We held that the elections should be held.

In our opinion these two cases do not control the instant case. Both of them concerned refilling currently existing judicial offices. Here, however, we are dealing with entirely new judicial offices which do not even exist at this moment. In such instance it is the legislature’s prerogative to say how such offices will initially be filled. We can find nothing which would deny the legislature the power to direct that some new judicial offices be filled through election while others be filled through appointment.

We therefore decline to issue the writ.

It is so ordered.

BOYD, C.J., and ADKINS, ALDERMAN, EHRLICH and SHAW, JJ., concur. NO MOTION FOR REHEARING WILL BE ALLOWED.

       Ch. 82-406, § 1, Laws of Fla., provided that 4 more of the new judgeships created by ch. 82-238 would be filled by election.


text:
    Don R. BOSWELL, Petitioner, v. George FIRESTONE, Secretary of State of the State of Florida, Respondent.
    No. 65599.
    Supreme Court of Florida.
    July 24, 1984.
    Don R. Boswell, West Palm Beach, pro per.
    Jim Smith, Atty. Gen., Mitchell D. Franks, Chief Trial Counsel and James W. Sloan, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

Denied. Hoy v. Firestone, 453 So.2d 814 (Fla.1984).

It is so ordered.

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

NO MOTION FOR REHEARING WILL BE ALLOWED.


text:
    Steven J. VANN, Petitioner, v. George FIRESTONE, Secretary of State of the State of Florida, Respondent.
    No. 65600.
    Supreme Court of Florida.
    July 24, 1984.
    Steven J. Vann, Delray Beach, pro. per.

      Jim Smith, Atty. Gen., Mitchell D. Franks, Chief Trial Counsel and James W. Sloan, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

Denied. Hoy v. Firestone, 453 So.2d 814 (Fla.1984).

It is so ordered.

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

NO MOTION FOR REHEARING WILL BE ALLOWED.


text:
    Philip M. BURLINGTON, Petitioner, v. George FIRESTONE, Secretary of State of the State of Florida, Respondent.
    No. 65603.
    Supreme Court of Florida.
    July 24, 1984.
    Philip M. Burlington, pro. per.
    Jim Smith, Atty. Gen., Mitchell D. Franks, Chief Trial Counsel and James W. Sloan, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

Denied. Hoy v. Firestone, 453 So.2d 814 (Fla.1984).

It is so ordered.

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

NO MOTION FOR REHEARING WILL BE ALLOWED.


text:
    James L. TOMLINSON, Petitioner, v. George FIRESTONE, Secretary of State of the State of Florida, Respondent.
    No. 65610.
    Supreme Court of Florida.
    July 24, 1984.
    Murray M. Wadsworth of Wadsworth & Davis, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen., Mitchell D. Franks, Chief Trial Counsel and James W. Sloan, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

Denied. Hoy v. Firestone, 453 So.2d 814 (Fla.1984).

It is so ordered.

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

NO MOTION FOR REHEARING WILL BE ALLOWED.


text:
    Michael D. LEBEDEKER, Petitioner, v. George FIRESTONE, Secretary of State of the State of Florida, Respondent.
    No. 65618.
    Supreme Court of Florida.
    July 24, 1984.
    Daniel S. Dearing of Dearing & Smith, Tallahassee, for petitioner.

      Jim Smith, Atty. Gen., Mitchell D. Franks, Chief Trial Counsel and James W. Sloan, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

Denied. Hoy v. Firestone, 453 So.2d 814 (Fla.1984). We decline to rule on the other issues sought to be raised because the instant petition can be disposed of without reaching them.

It is so ordered.

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

NO MOTION FOR REHEARING WILL BE ALLOWED.


text:
    THE FLORIDA BAR, Complainant, v. Devitt J. ADAMS, Respondent.
    No. 63815.
    Supreme Court of Florida.
    July 26, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee and David G. McGunegle, Bar Counsel, Orlando, for complainant.
    Devitt J. Adams, in pro. per., Fort Pierce, for respondent.
   PER CURIAM.

This disciplinary proceeding is before us upon the complaint of The Florida Bar and the report of a referee. Neither The Florida Bar nor the respondent have petitioned for review of the report. We have jurisdiction. Art. Y, § 15, Fla. Const.; Fla.Bar Integr.Rule, art. XI, Rule 11.09.

The referee found that respondent engaged in unethical conduct by failing to notify a business partner of the sale of some property by respondent as trustee for a group of investors and failing to make a timely accounting of funds received from the sale. The referee recommended that respondent be suspended from the practice of law for sixty days with automatic reinstatement and that he pay for the costs of these proceedings. It is uncontested that an attorney can be disciplined for failing to completely disclose essential matters in business transactions with non-clients. E.g., The Florida Bar v. Davis, 373 So.2d 683 (Fla.1979); The Florida Bar v. Bennett, 276 So.2d 481 (Fla.1973). We approve the referee’s findings of fact. Because neither party has sought review of the recommended discipline, we adopt it. See Fla.Bar Integr.Rule, art. XI, Rule 11.-09(3)(f). Respondent is hereby suspended from the practice of law for a period of sixty days. He is allowed thirty days for the orderly closing of his practice. Respondent shall also pay to The Florida Bar $1,299.39, the costs of these proceedings.

It is so ordered.

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


author: ADKINS, Justice. BOYD, Chief Justice,

text:
    Evelyn R. FLACK, Petitioner, v. Bob GRAHAM and Gerald Lewis, Respondents.
    No. 63919.
    Supreme Court of Florida.
    July 26, 1984.

      Rivers Buford, Jr. and Keith J. Kinder-man, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen. and Walter M. Meginniss, Asst. Atty. Gen., Tallahassee, for respondents.
   ADKINS, Justice.

Petitioner, Evelyn Flack, seeks a writ of mandamus to compel the respondents to disburse state funds sufficient to recompense her for back salary unpaid by the comptroller as a result of an election contest. We have jurisdiction. Art. V, § 3(b)(8), Fla. Const.

Petitioner was involved in a contest for re-election to the office of county judge for Wakulla County in 1978. The county canvassing board declared her opponent, J. Michael Carter, the winner. Petitioner then instituted a challenge to the validity of several absentee ballots. Approximately forty-six months after the original election petitioner ultimately prevailed in her litigation and was declared the election winner. Wakulla County Absentee Voter Intervenors v. Flack, 419 So.2d 1124 (Fla. 1st DCA 1982), review denied, 427 So.2d 738 (Fla.1983). Her commission was issued on September 3, 1982, entitling her to serve “for a term of four years from the First Tuesday after the First Monday in January, A.D. 1979.”

By petition for writ of mandamus, petitioner now seeks back pay (plus interest) representing the salary she would have received had she fully served her term of office. The record reflects that Carter served as de facto county judge during that period and received the salary appropriate to the office.

We determined that the petition demonstrated a preliminary basis for relief and we ordered the respondents to show cause why petitioner’s request should not be granted. Respondents have filed their response denying petitioner’s right to the requested compensation.

Our determination of this case involves two issues: 1) whether there is a source from which compensation for the petitioner can be made available and, 2) whether the petitioner has a legal right to such compensation.

The first issue is superficially guided by the constitutional prohibitions of article VII, section 1(c) and article V, section 14, Florida Constitution. Article VII, section 1(c) states that "[n]o money shall be drawn from the treasury except in pursuance of appropriation made by law.” Article V, section 14, similarly states that the “judiciary shall have no power to fix appropriations.” Inasmuch as the funds for the salary of the Wakulla County Judge were legislatively appropriated and paid, there are no funds remaining from statutorily fixed appropriations to pay the salary requested by petitioner.

This Court has, however, previously addressed the question of the source of the funds. In State ex rel. Williams v. Lee, 121 Fla. 815, 164 So. 536 (1935), we held that the constitutional proscription against appropriations from the treasury except by law, article IX, section 4, Florida Constitution (1885), now article VII, section 1(c), must be construed in conjunction with the constitutional requirement that salaries be duly paid. Art. XVI, § 3, Fla. Const. (1885). By reading these two provisions in pari materia, a constitutional appropriation was created requiring that salaries be paid “out of any available moneys in the state treasury in the general state funds.” Williams, 121 Fla. 820, 164 So. at 538. Recognition of the constitutional appropriation provides a basis for judicial appropriations and satisfies the requirement that money drawn from the treasury be done so only pursuant to appropriation by law.

Although section 3 of article XVI was not adopted in the 1968 constitutional revision, it continues as a statute until altered or amended by statute or found inconsistent with the revision. Art. XII, § 10, Fla. Const. (1968). Respondents have not identified inconsistencies or alterations; nor have we located any such inconsistencies or alterations. Therefore, article XVI, section 3 of the 1885 Constitution is presently in full force and effect as a statute.

The result is that Williams remains viable and, if petitioner is entitled to the back salary sought, a constitutional appropriation makes the desired funds available from the general treasury. We find further support for our holding on this issue in Wright v. MacVicar, 88 So.2d 541 (Fla.1956); and In re Opinion of the Justices, 145 Fla. 375, 376, 199 So. 350, 351 (1940).

The second issue, whether petitioner has a legal right to the salary requested because she was the de jure officer, requires us to review two distinct lines of authority. It has been stated that a majority of jurisdictions hold that the payment of salary to a de facto officer is a valid defense to an action brought by a de jure officer where the de jure officer was not performing the duties of his or her position. Annot., 64 A.L.R.2d 1376 (1959). See Irwin v. Jefferson County, 228 Ala. 609, 154 So. 589 (1934); People ex rel. Hilger v. Myers, 114 Ill.App.2d 478, 252 N.E.2d 924 (1969); Hittell v. City of Chicago, 327 Ill. 443, 158 N.E. 683 (1927). The reasoning supporting the majority view includes the following: where the governmental entity has received only one service, it should pay only one person; that efficiency requires officers to be promptly paid for their services, and that the disbursing officer should be able to rely on the apparent authority of the de facto officer’s title in paying the appropriated salary; that since the de jure officer has no property or contract right in his office, he or she should perform the required services prior to recovering a salary; and that public policy precludes payment of back salary to the de jure officer.

The minority view, which is gaining in acceptance, has various rationales stated for its support. First, as we have held in Hanchey v. State ex rel. Roberts, 52 So.2d 429, 432 (Fla.1951), although the de facto officer receives his or her salary on the basis of services performed, an officer’s salary is in actuality an incident to the office and therefore belongs to the person holding legal title. Second, the public good is not served when a public officer, legally entitled to office and a salary, does not receive the salary and it is better for the public treasury to ultimately respond to the de jure officer than to allow the de facto officer to suffer during his commission. Annot., 64 A.L.R.2d at 1390; see Board of County Commissioners v. Litton, 315 P.2d 239 (Okla.1957); Reed v. Sloan, 25 Pa.Commw. 570, 360 A.2d 767 (1976) aff'd., 475 Pa. 570, 381 A.2d 421 (1977); LaBelle v. Hazard, 91 R.I. 42, 160 A.2d 723 (1960); State ex rel. Barham v. Graham, 161 Tenn. 557, 30 S.W.2d 274 (1930); State ex rel. Godby v. Hager, 154 W.Va. 606, 177 S.E.2d 556 (1970). In appropriate cases, double payment of salary is desirable to preclude the public authorities from approving intrusion with impunity upon a public office. See, e.g., § 111.05, Fla.Stat. (1981). In addition, the rule offered by respondents may stimulate irresponsible persons to cling to office without a scintilla of title, in order to receive a salary in derogation of the de jure officeholder’s legal rights.

Finally, we note that the probability of a lengthy election challenge may induce challengers to forego litigation because their victory may be monetarily hollow. Although compensation may not be a major incentive to public officers, it is a factor which may preclude rightful holders of office from seeking to remove unlawful holders of office.

In State ex rel. Dresskell v. City of Miami, 153 Fla. 90, 92, 13 So.2d 707, 708 (1943), we recognized

the familiar rule of law pertaining to public officers which recognizes that if one is lawfully entitled to a public office his right to salary attaches to the office and may be recovered in full, irrespective of any service rendered and without regard to the fact that he may have earned money elsewhere in private employment.

(Emphasis supplied.) Petitioner was ultimately adjudicated the lawful holder of the office of county judge for Wakulla County. Applying Dresskell literally, petitioner is entitled to the salary requested. However, respondents point out that the above-quoted statement was merely dictum and was not applied to that case. Moreover, they argue that double payment of the same salary is not an action approved or favored by this Court. Ball v. State ex rel. Harvey, 108 Fla. 163, 146 So. 830 (1933). We disagree insofar as public officers are concerned.

We find that the reasons stated in the minority position indicate the appropriate rule and that de jure officers should receive the emoluments of their office. See Gavagan v. Marshall, 160 Fla. 154, 33 So.2d 862 (1948); State ex rel. Williams v. Lee, 121 Fla. 815, 164 So. 536 (1935); State ex rel. Hatton v. Joughin, 103 Fla. 877, 138 So. 392 (1931). Ball is not to the contrary. That case involved a situation where the officer had not judicially established his right to the office for which he sought a salary. Here, petitioner established her right to office prior to seeking back pay. She should receive the salary requested.

We recognize that in some cases, either through bad faith, waiver and estoppel, or malfeasance, a de jure officer may be precluded from seeking backpay. But in the instant ease, petitioner did not acquiesce to the unlawful election results and accordingly is not subject to the above equitable principles. Public policy would not be served by denying compensation.

The final issue we address is whether there should be an offset to the de jure officer’s salary against income earned from the private practice of law inasmuch as article V, section 13 of the Florida Constitution requires judges to “devote full time to their judicial duties.” This is a question of first impression in our Court.

We have reviewed the authorities from other jurisdictions and find that public officers—as opposed to public employees—are entitled to back pay without set-off of earnings from other sources. See, e.g., City of Mobile v. Mitchell, 294 Ala. 474, 318 So.2d 708 (1975); 4 McQuillin, Municipal Corporations § 12.186 (3d ed. 1968); accord, Dreskell. This exception for public officers is nearly unanimous. Annot., 150 A.L.R. 100, 103 (1940). The reason advanced for the rule is that:

[N]o contractual relationship exists between the governmental unit and a public official, and that the compensation, being incidental to the office which the official holds, is governed by the right to the office, and cannot be diminished by the application of the doctrine of mitigation of damages which is based on the existence of a contractual relationship.

Vega v. Borough of Burgettstown, 394 Pa. 406, 408, 147 A.2d 620, 622 (1958). See also Gentry v. Harrison, 194 Ark. 916, 110 S.W.2d 497 (1937); Fitzsimmons v. Brooklyn, 102 N.Y. 536, 7 N.E. 787 (1886); and Reising v. Portland, 57 Or. 295, 111 P. 377 (1910).

Because we agree that a salary is merely incidental to the office, we agree with the cited cases that a public officer in these situations should not have his or her salary reduced because of the doctrine of mitigation of damages.

We therefore conclude that the response to the order to show cause does not present a defense to petitioner’s request. Because we believe the appropriate officials will comply with this decision, we withhold issuance of the writ of mandamus at this time.

It is so ordered.

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

BOYD, C.J., concurs in part and dissents in part with an opinion.

BOYD, Chief Justice,

concurring in part and dissenting in part.

When Judge Evelyn Flack became a candidate for the office of County Judge of Wakulla County she offered to serve for a term of four years for the salary fixed by law. Her election to the office created a contract of employment. Due to court decisions against her the office was unlawfully filled by her opponent, Judge J. Michael Carter. He performed the judicial duties as a de facto public official and drew the salary. Neither of the judges acted in bad faith, nor did the voters, taxpayers, or other involved public officials. The controversy grew out of differing legal and judicial opinions relating to absentee ballots.

As stated in the majority opinion the various jurisdictions which have considered this issue have disagreed on whether an official who has won an elective office should be paid the full salary as an official when a de facto official has been improperly allowed to serve in the office and draw the salary.

In this case the contract of employment could not be performed because Judge Carter was officially declared the winner and was not finally ousted until about three and a half years later. Neither Judge Flack nor the taxpayers should suffer, nor should either be unjustly enriched due to circumstances which neither caused. It would be manifestly unfair for the taxpayers to be required to pay both Judge Carter and Judge Flack for the performance of duties of the office while only Judge Carter held the office under color of law. It would be equally unfair for Judge Flack not to be compensated by the government for the monetary damages she suffered from being denied the office which she had lawfully won.

Since governmental entities denied her the privilege of performing her contract for judicial services the matter should be treated as a breach of contract. She should receive the actual compensatory damages caused by the breach of contract.

The amount of damages awarded should be based upon the loss of professional income, if any, which Judge Flack incurred due to her not being able to serve in the office. Thus the salary she would have received had she served in the office should be given to her, reduced, however, by the amount she earned as a lawyer during the period when she was available to serve as county judge but was improperly excluded from doing so. If her earnings during that period exceeded the judicial salary, then, of course, she should recover no salary. She should also recover reimbursement for all court costs, reasonable attorneys’ fees and other expenses incurred in her efforts to recover the office.

I therefore concur in the majority opinion ordering that Judge Flack be paid the back salary but dissent to that portion which denies the state the benefit of an offset of her earnings during the period when she was improperly denied the privilege of serving as County Judge.


text:
    THE FLORIDA BAR, Complainant, v. Richard M. ROCHA, Respondent.
    No. 63995.
    Supreme Court of Florida.
    July 26, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Steve Rushing, Bar Counsel, Tampa, for complainant.
    Paul Antinori, Jr. of Antinori & Thury, Tampa, for respondent.
   PER CURIAM.

This attorney-discipline proceeding is before us on the complaint of The Florida Bar and the report of the referee. We have jurisdiction. Art. V, § 15, .Fla. Const.

The referee, whose report is not contested, accepted a conditional guilty plea for consent judgment and recommended that respondent be found guilty of violating Disciplinary Rules 1-102(A)(3) and 1-102(A)(6) of The Florida Bar Code of Professional Responsibility. The referee recommended that respondent receive a public reprimand and an eighteen-month period of supervised probation. In addition, the referee recommended that respondent be required to undergo a psychological evaluation and any continuing counseling as recommended by the evaluating psychologist.

We approve the acceptance of the consent judgment and the findings and recommendations of the referee. We hereby enter a public reprimand against respondent. The publication of this order in Southern Reporter shall serve as respondent's public reprimand. Respondent is ordered to undergo a psychological evaluation and any continuing counseling as is recommended by the examining psychologist. Costs of this proceeding in the amount of $956.80 are assessed against respondent.

It is so ordered.

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


text:
    STATE of Florida, Petitioner, v. Willie WILLIAMS, Respondent.
    No. 64470.
    Supreme Court of Florida.
    July 26, 1984.
    Jim Smith, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for petitioner.
    Michael E. Allen, Public Defender and Paula S. Saunders, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for respondent.
   PER CURIAM.

This cause is before us pursuant to a certified question of great public importance from the First District Court of Appeal. Williams v. State, 439 So.2d 1014 (Fla. 1st DCA 1983). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Respondent was charged, in nine separate informations, with burglary and theft occurring on eight different days, involving nine different victims, and, in two additional informations, with thefts involving the same victim on the same day. The state’s motion to consolidate was granted without explanation. The jury found respondent guilty as charged.

The district court reversed on the authority of Paul v. State, 385 So.2d 1371 (Fla.1980). In Paul, this Court adopted Judge Smith’s dissent relating to Florida Rule of Criminal Procedure 3.151 and the consolidation of related offenses. Paul v. State, 365 So.2d 1063, 1065 (Fla. 1st DCA 1979) (Smith, J., dissenting). We held in Paul that consolidation is improper when “based on similar but separate episodes, separated in time, which are ‘connected’ only by similar circumstances and the accused’s alleged guilt in both or all instances.” 365 So.2d at 1065-66, adopted 385 So.2d at 1372. The purpose of requiring separate trials under these circumstances is “to assure that evidence adduced on one charge will not be misused to dispel doubts on the other....” 365 So.2d at 1066, adopted 385 So.2d at 1372. The district court correctly concluded that the offenses charged in the present case that occurred on different days and involved separate episodes were not related under Paul for purposes of consolidation. Nonetheless, the district court certified as a question of great public importance the issue of “the continued viability and applicability of the Paul ruling in this case.” Williams v. State, 439 So.2d at 1016. The district court was concerned that “strict adherence to Paul necessarily results in further imposition on our already overburdened trial courts.” Id. at 1015-16. However, as we have previously stated,

[ejven if consolidation is the “most practical and efficient method of processing” a case, practicality and efficiency should not outweigh a defendant’s right to a fair trial. “The objective of fairly determining a defendant’s innocence or guilt should have priority over the relevant considerations such as expense, efficiency, and convenience.” Crum v. State, 398 So.2d 810, 811 (Fla.1981).... We emphasize that prejudice to the defendant will outweigh judicial economy.

State v. Vazquez, 419 So.2d 1088, 1091 (Fla.1982) (footnotes omitted).

Paul continues to reflect the law in Florida. We have not receded from Paul, or amended rule 3.151 since our decision in Paul. The district court correctly held that Paul was applicable and mandated reversal in the present case, where there was the improper consolidation of at least the seven indictments charging offenses allegedly committed on different days, not involving connected acts or transactions, but involving merely the same defendant and similar circumstances.

The decision of the district court is approved.

It is so ordered.

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

ADKINS and ALDERMAN, JJ., dissent.

      . Two of the nine informations charged offenses occurring on December 14, 1981.

      . Rule 3.151, in relevant part, provides as follows:
      (a) For purposes of these Rules, two or more offenses are related offenses if they are triable in the same court and are based on the same act or transaction or on two or more connected acts or transactions.
      (b) Two or more indictments or informa-tions charging related offenses shall be consolidated for trial on a timely motion by a defendant or by the state. The procedure thereafter shall be the same as if the prosecution were under a single indictment or information.


author: PER CURIAM. ZEHMER, Judge,

text:
    Gene ABRAMS, Dixie Sea Products, Inc., a Florida corporation and Robert M. Moore, Appellants, v. Sally PAUL and Allen William Paul, d/b/a Paul’s Seafood, Appellees.
    No. AO-188.
    District Court of Appeal of Florida, First District.
    June 12, 1984.

      Van P. Russell, of Watkins & Russell, Apalachicola, for appellants.
    Robert Cintron, Jr., of Dearing & Smith, Tallahassee, for appellees.
   PER CURIAM.

Appellants were the defendants in a suit arising out of the sale of a stolen truck to the appellees. The amended complaint contained counts against Abrams and Dixie Sea Products Inc. for breach of warranties, a count against “defendants” alleging fraud, and a count against Moore (an attorney) for malpractice. Although the defendants answered the original complaint, they did not respond to the amended complaint and a default was entered some five months after the amended complaint was filed. Thereafter, a jury trial was held on the issue of damages which resulted in a verdict against the defendants, jointly and severally, in the amount of $22,000 actual damages and $22,000 punitive damages. By this appeal, the defendants challenge the entry of default and the jury verdict. We affirm on all points except the one discussed more fully below pertaining to the trial court’s rejection of appellants' contention that they never received the notice of trial. On that issue we reverse and remand for reconsideration by the trial court.

Appellants first assert that the court erred in entering the default against defendant Moore because, they allege, the complaint fails to state a cause of action against him. We have thoroughly reviewed the record on appeal and find no indication that this assertion was ever presented to the trial court. Appellants’ motion to vacate the default judgment does not even vaguely refer to the possibility that the default against Moore was improper because the allegations in the complaint were insufficient to state a cause of action against him. Whether the allegations of a complaint which are deemed admitted due to the entry of a default state a cause of action is, as with any other disputed legal issue, preliminarily for the trial court to consider. See North American Accident Ins. Co. v. Moreland, 60 Fla. 153, 53 So. 635 (1910). Since this issue is raised for the first time on appeal, the trial court has not been afforded an opportunity to determine the merits of appellants’ assertion. If the issue had been presented to the trial court in the motion to vacate the default, its ruling thereon would, of course, be subject to review by this court. See e.g., GAC Corp. v. Beach, 308 So.2d 550 (Fla. 2d DCA 1975); Bay Products Corp. v. Winters, 341 So.2d 240 (Fla. 3d DCA 1976). However, in the absence of jurisdictional or fundamental error, it is axiomatic that it is the function of the appellate court to review errors allegedly committed by trial courts, not to entertain for the first time on appeal issues which the complaining party could have, and should have, but did not, present to the trial court. Palmer v. Thomas, 284 So.2d 709 (Fla. 1st DCA 1973); 3 Fla.Jur.2d Appellate Review § 92. Appellants do not contend that the alleged deficiencies in the complaint constitute fundamental or jurisdictional error, nor have we found any authority which would support such a contention. We therefore decline to consider the question of whether the complaint sufficiently stated a cause of action against defendant Moore.

Second, appellants argue that the default was improper because they had answered the original complaint. However, the amended complaint was filed after the effective date of the amendment to Fla.R. Civ.P. 1.190(a), which provides that “a party shall plead in response to an amended pleading .... ” Therefore, the answer to the original complaint did not carry over so as to be considered a response to the amended complaint.

Next, appellants argue that they were entitled to a new trial because (1) they did not receive the notice of trial; (2) the notice of trial was mailed only 27 days before the trial was set; and (3) the trial court did not enter an order setting the case for trial. Fla.R.Civ.P. 1.440. Rule 1.440 provides in pertinent part:

(b) Notice for Trial. Thereafter any party may file and serve a notice that the action is at issue and ready to be set for trial. The notice shall include an estimate of the time required, whether the trial is to be by a jury or not and whether the trial is on the original action or a subsequent proceeding. The clerk shall then submit the notice and the case file to the court.
(c) Setting for Trial. If the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial. Trial shall be set not less than thirty days from the service of the notice specified in subdivision (b) ....

In their motion for a new trial, appellants alleged that they never received the notice of trial. The motion was accompanied by affidavits executed by Moore and his secretary to that effect. While the trial court found specifically that Moore’s affidavits “were not sufficient to overcome” the “prima facie proof of service and receipt” arising from the certificate of service in the plaintiffs notice of jury trial, the language in the order indicates that the judge may have misapprehended his authority and duty to make a factual determination that defendants did or did not receive the notice of trial. The order states in pertinent part:

The certificate of service set forth in plaintiffs notice of jury trial is prima facie proof that the notice was mailed to and received by counsel for defendants. Defendant Moore’s sworn affidavits that his office had not received the notice of jury trial were not sufficient to overcome such prima facie proof of service and receipt.

The presumption raised by the certificate of service is clearly not conclusive. Neither is a sworn denial of receipt either sufficient or insufficient as a matter of law in rebuttal of the presumption. Both Scott v. Johnson, 386 So.2d 67 (Fla. 3d DCA 1980), and Winky’s, Inc. v. Francis, 229 So.2d 903 (Fla. 3d DCA 1970), support the proposition that whether the defendants received the notice of trial is a question of fact for the trier of fact. Both cases explicitly recognize that the certificate raises only a rebuttable presumption. Scott actually reversed the trial court and remanded for an evidentiary hearing on whether “the presumption of receipt created by such mailing has not been overcome by sufficient and competent evidence.” 386 So.2d at 69. The Scott decision does contain, however, certain unfortunately worded dictum that “this presumption is not overcome by a denial, even though sworn, that the order was not received,” citing in support of that statement Service Fire Insurance Co. of New York v. Markey, 83 So.2d 855 (Fla.1955); Milros-San Souci, Inc. v. Dade County, 296 So.2d 545 (Fla. 3d DCA 1974); and Allstate Insurance Co. v. Dougherty, 197 So.2d 563 (Fla. 3d DCA 1967). Two of the cited decisions involved mailing notices of insurance cancellation which, under the terms of the respective policies, were deemed complete when mailed, irrespective of actual receipt by the insured. The other case, Milros-Sans Souci, involved the mailing of a tax assessment that was held to create a presumption of receipt which was not overcome by the appellants at an evidentiary hearing at which witnesses for the respective parties testified. The dictum in Scott should not, in light of the cited authorities, be taken to mean that a sworn denial of receipt is insufficient as a matter of law to overcome the rebuttable presumption. Winky’s, Inc., involved personal service of process by a deputy sheriff on the resident agent of the defendant, who denied actual receipt. After a full evidentiary hearing on this question, the trial court found that “[b]y virtue of the fact that the Deputy Sheriff says he went to the place of business, was told who Mr. Krieger was, and served that individual, on the face of it, proper service was had.” 229 So.2d at 905. The trial court’s holding that defendant’s testimony denying receipt did not overcome the deputy’s evidence of actual service was affirmed on appeal. Accordingly, neither Scott nor Winky’s compels disregard of the affidavits of denial filed by defendant Moore and his secretary in the instant case.

The issue is therefore a factual one requiring the trial court to weigh the evidence and make a determination as to whether the notice was received. In addition to the attached affidavits, the motion herein stated affiant’s preparedness to testify as to office records and lack of receipt. Since the record reflects no evidentiary hearing on the issue, and the quoted language from the order, supra, indicates that the trial court’s determination was based upon the incorrect premise that the presumption of receipt established by the certificate of service could not, as a matter of law, be overcome by the defendant’s sworn statements, we reverse the order of denial and remand the cause to the trial court for determination of the essential fact.

A difficult question is also presented by the allegations of reversible error based on the court’s failure to enter an order setting the trial, for a time more than thirty days from the service of the notice. The rule expressly requires the trial court to enter an order setting the case for trial, and does not provide an exception for local practice to permit reliance on the notice and dispense with the order. However, in Padgett v. First Federal Savings and Loan, 378 So.2d 58 (Fla. 1st DCA 1979), this court took judicial notice that it is in fact the custom and practice in many jurisdictions to dispense with the order. Although the opinion criticized the practice, it stated that “we must accord a fairly wide latitude to the local courts in the handling of these matters.” Because the defendants had received actual, timely notice of the trial, the court in that case found that they had not shown that they were prejudiced by the technical violation and no reversible error occurred.

More recently, in Heritage Casket and Vault Inc. v. Sunshine Bank, 428 So.2d 341 (Fla. 1st DCA 1983), this court refused to apply the harmless error doctrine in a case involving a violation of Rule 1.440. However, in that case the actual notice of trial was mailed only eight days before the final hearing. While recognizing that the 30-day requirement has not always been rigidly enforced, this court held that such short notice (effectively seven days at the most) did not comport with due process requirements and refused “to stretch the limits of the trial court’s discretion to permit such’ a complete disregard for a rule of civil procedure.”

Although the present case falls somewhere between Padgett and Heritage Casket, we conclude that appellants’ due process rights were not violated and no fundamental error occurred in- this respect. If the trial court, after hearing on remand, resolves against defendants the factual issue as to receipt of the notice mailed 27 days before trial, appellants would not in our opinion be able to demonstrate prejudice from the technical violation of Rule 1.440. Reversible error is accordingly not shown on that point. Of course if the trial court determines on remand that the notice of trial was not received, the question of whether it was mailed within thirty days will be moot. See Heritage Casket, supra.

Finally appellants argue that it was error to permit the jury to assess punitive damages against the defendants “jointly and severally.” We do not reach the merits of this argument because no such error is preserved absent an objection to the verdict form. See Whitman v. Castlewood International Corp., 383 So.2d 618 (Fla. 1980); Middelveen v. Sibson Realty Inc., 417 So.2d 275 (Fla. 5th DCA 1982); Rose’s Stores Inc. v. Mason, 338 So.2d 1323 (Fla. 4th DCA 1976); High, Clarke & Feneis Inc. v. Public Service Mutual Insurance Co., 238 So.2d 169 (Fla. 3d DCA 1970); Fla.R.Civ.P. 1.470(b). This issue would also, of course, be mooted if new trial is granted on other grounds, supra.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

WENTWORTH and JOANOS, JJ., concur,

ZEHMER, J., concurs in part and dissents in part with opinion.

ZEHMER, Judge,

concurring in part and dissenting in part.

I concur in reversing and remanding for further proceedings on appellants’ claim that they did not receive notice of the trial. I believe, however, that the majority errs in refusing to review both the sufficiency of the amended complaint and the form of verdict on punitive damages, as well as in its treatment of appellants' objection that no order was entered setting the case for trial.

Appellants are correct in their contention that the default judgment must be reversed if founded upon a complaint insufficient to form a legal basis for the judgment. North American Accident Insurance Co. v. Moreland, 60 Fla. 153, 53 So. 635, 637 (1910); GAC Corp. v. Beach, 308 So.2d 550 (Fla. 2d DCA 1975). Beach, quoting from North American Accident Insurance Co., stated the applicable rule in 308 So.2d at 551-52:

A judgment by default properly entered against parties sui juris .operates as an admission by the defendants of the truth of the definite and certain allegations and the fair inferences and conclusions of fact to be drawn from the allegations of the declaration. Conclusions of law, and facts not well pleaded, and forced inferences are not admitted by a default judgment. If the allegations and the fair inferences from the allegations state a cause of action in favor of the plaintiffs, the allegations as to the right of action are taken to be true. Whether the admitted allegations state a cause of action is for the court to determine. Russ v. Gilbert, 19 Fla. 54; Watson v. Seat, 8 Fla. 446; 6 Ency.Pl. & Pr. 117. See also, Lybass v. Town of Ft. Myers, 56 Fla. 817, 47 So. 346; Hale v. Yeager, 57 Fla. 442, 49 So. 544.
A judgment by default entitles the plaintiff to the relief for which a proper predicate has been laid in the declaration. See Ocala v. Anderson, 58 Fla. 415, 50 So. 572. If the allegations of the declaration do not form a legal basis for the judgment recovered, it will be reversed on appeal. See 6 Ency.Pl. & Pr. 118. (Emphasis added.)

Appellees explicitly agree with appellants on this proposition, citing Bay Products Corp. v. Winters, 341 So.2d 240 (Fla. 3d DCA 1976), and fully defend the merits of the amended complaint. These decisions clearly establish that the entry of a default judgment against a defendant admits as true only well-pled facts, not forced inferences and conclusions, and that only a default judgment supported by such well-pled facts should be affirmed on appeal.

Appellees do not contend that this court cannot review the sufficiency of the complaint because that objection was not raised in the court below. Yet it is on this ground alone that the majority declines to consider the sufficiency of the complaint. Neither the majority nor I, however, have found any authority which directly holds it necessary to attack the sufficiency of the complaint in the trial court as a prerequisite to review on appeal from a default judgment. I cannot agree with the majority that the law should or does impose such a requirement in this limited class of appeals. It is well established that the sufficiency of a complaint to support a default judgment may be attacked for the first time in a collateral proceeding to enjoin enforcement of that judgment without the defaulting party having appeared before the court that entered the judgment. See, Roberts v. Seaboard Surety Co., 158 Fla. 686, 29 So.2d 743, 748 (1947); 33 Fla.Jur.2d, Judgments and Decrees, §§ 270, 319. Why should it not follow that the defendant can attack the sufficiency of the complaint in appellate proceedings to review the validity of that judgment even though he did not timely appear and defend in the trial court?

Palmer v. Thomas, 284 So.2d 709 (Fla. 1st DCA 1973), cited by the majority, does not hold otherwise. Palmer held that affirmative defenses not raised in the trial court after a default was entered would not be considered on appeal. This decision was eminently correct because the default, once entered, precluded the filing of affirmative defenses. Palmer does not address, however, the right to appellate review of the claimed insufficiency of the complaint, which is obviously not an affirmative defense. The insufficiency of the complaint inheres in the alleged cause of action. Since the entry of a default does not admit the sufficiency of the plaintiffs cause of action, but only well-pled facts, the court, upon application for entry of final judgment, is required to carefully scrutinize those allegations to determine that they are adequate and support the relief being granted by entry of judgment pursuant to the default, whether or not the defendant has appeared and questioned its sufficiency. It is for this reason that the clerk can enter the default as a ministerial matter, but only the trial court can enter a judgment pursuant to the default. See, 33 Fla. Jur., Judgments and Decrees, § 275.

Believing that the allegations in the amended complaint are insufficient to support the judgment entered against appellant Moore, I respectfully dissent from the majority’s decision on this issue.

I likewise respectfully dissent from the majority’s refusal to review the erroneous verdict which assessed punitive damages in a single sum against the several defendants as joint tort feasors. Appellants were not present at the damage trial so they obviously were not in position to object to the erroneous verdict submitted to the jury at that time. Appellants first raised this issue in their timely motion for new trial. The majority opinion, however, concludes that this motion did not timely raise this objection because even in default cases when the defendant is not present an objection must be made before the jury is instructed in order to preserve the issue for appellate review, citing Whitman v. Castlewood International Corp., 383 So.2d 618, 619-620 (Fla.1980), and other cases. Because none of the cited cases involved a default trial where the complaining party was not present when the jury was instructed, and because appellants submitted this objection to the trial court in the first motion they made after the verdict, I do not believe those cases should govern our decision on this issue.

The verdict assessing a single sum for punitive damages against the several joint tort feasors is clearly erroneous as a matter of law. Lehman v. Spencer Ladd’s, Inc., 182 So.2d 402, 403 (Fla.1966); Standard Jury Instruction 6.12 (punitive damages). The Supreme Court in Lehman approved Judge John Wigginton’s suggestion in his opinion for this court, Spencer Ladd’s, Inc. v. Lehman, 167 So.2d 731 (Fla. 1st DCA 1964), that in cases where punitive damages are sought against two or more joint tort feasors, the court should use a special verdict which allows the jury to assess punitive damages individually in separate amounts against each of the several defendants found to be liable therefor. Despite the fact that differing causes of action were asserted against different defendants, the verdict form used in this case did not permit the jury to make any independent determination of punitive damages as to each defendant but, rather, required the jury to treat all of the defendants alike. For this reason, the punitive damages award should be reversed. Even if the majority’s conclusion that appellants’ objection was not timely raised in the motion for new trial is correct, an error of this magnitude should nevertheless be treated as fundamental error. See, Jefferson v. City of West Palm Beach, 233 So.2d 206 (Fla. 4th DCA 1970); Security Mutual Casualty Co. v. Bleemer, 327 So.2d 885 (Fla. 3d DCA 1976); Vega v. Mahfuz, 367 So.2d 1107 (Fla. 3d DCA), cert. denied, 378 So.2d 346 (Fla.1979); Cf., Sears Roebuck & Co. v. Jackson, 433 So.2d 1319 (Fla. 3d DCA 1983).

I agree with the majority that the failure to obtain a court order setting the case for trial on damages does not necessarily mandate reversal, but I disagree with their approach to dealing with that question. Rule 1.440, Florida Rules of Civil Procedure, is absolutely unambiguous in its requirement that the setting of trial shall be done by order of the court properly served on the defendants. That rule contains no authority for setting trial without prior notice to opposing counsel at least thirty days prior to the trial date. The rule does not sanction the setting of trial by an opposing party through mere service of a notice in fewer than thirty days. The opinion in Padgett v. First Federal Savings & Loan Assn. of Santa Rosa County, 378 So.2d 58 (Fla. 1st DCA 1979), should not be read as blanket authorization for departure from this fundamental requirement of the rule based upon explicit or tacit recognition of local custom and practice. Only the Supreme Court of Florida has the power to authorize trial courts to adopt and follow procedural rules that differ from the clear requirements of the civil rules promulgated by that court. Even though it was stated in Padgett, supra, that “we must accord a fairly wide latitude to the local courts in the handling of these matters,” such statement is merely dicta. 378 So.2d at 66. The Padgett decision should be restricted to the facts of that case, which clearly supported affirmance under the harmless error rule because the record showed no actual prejudice to the appellant. In Davis v. Hagin, 330 So.2d 42 (Fla. 1st DCA 1976), cited in Padgett, supra, and in the majority opinion, the defendant actually received notice well in advance of trial and made no objection to the trial court concerning failure to comply with rule 1.440 until the day before trial. The court’s affirmance was based on defendant’s tardiness in objecting and bringing this known deficiency to the attention of the court.

The majority's conclusion, that “appellants would not in our opinion be able to demonstrate prejudice from the technical violation of Rule 1.440,” is necessarily based on implied assumptions not properly shown in the record before the court below. Whether failure to follow the rule in this instance should be treated as harmless error cannot be determined on the record before us. Appellants’ motion alleges that the circuit court of Franklin County “has previously held the voluntary giving of notice of trial by Plaintiff’s counsel was not binding on Defendants absent an Order by the Court, pursuant to Rule 1.440, Fla.R. Civ.P. setting the matter for trial. (The Estate of Ward Fowler, Dec’d., Franklin Probate No. 79-29).” While the circuit court can take judicial notice of its files in that case, the record fails to reflect that an evidentiary hearing was held at which copies of the pertinent portions thereof were received and considered. The record is barren of any other evidence of local custom and practice in Franklin County that would support a departure from the Supreme Court’s rule. Whether or not the appellants suffered prejudice from failure to follow that rule in this instance is a question of fact to be decided by the trial court upon an evidentiary hearing. For this reason, I dissent from that portion of the majority opinion and would remand for further proceedings, including an evidentiary hearing on the question of prejudice.

      . Fla.R.Civ.P. 1.440 has been amended several times, but since it was enacted as Rule 2.2 in 1954 it has included the requirement that the court, not the parties, set the case for trial. 30 Fla.Stat.Ann. 502 (1967).

      . The holding in Heritage Casket rests on alternate grounds; the first being that the evidence did not show that the defendants received the notice at all. There is no indication of an express finding to the contrary by the trial judge in that case. Furthermore, there was no evidence that the defendant lived, or received mail, at the address where the notice was sent.

      . See Davis v. Hagin, 330 So.2d 42 (Fla. 1st DCA 1976).


text:
    Jere D. BELL, Appellant, v. STATE of Florida, Appellee.
    No. 83-109.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1984.
    Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED on authority of Armbruster v. State, 453 So.2d 833 (Fla. 4th DCA 1984), opinion filed this day.

ANSTEAD, C.J., and DOWNEY and HERSEY, JJ., concur.