author: PER CURIAM. OVERTON, Justice, McDONALD, Justice,

text:
    THE FLORIDA BAR, Petitioner, v. Rosemary W. FURMAN, d/b/a Northside Secretarial Service, Respondent.
    Nos. 63380, 62676.
    Supreme Court of Florida.
    April 26, 1984.
    Rehearing Denied July 11, 1984.

      William O.E. Henry, President, Lakeland, Gerald F. Richman, President-elect, Miami, John F. Harkness, Jr., Executive Director, and Catherine L. Dickson, UPL Counsel, Tallahassee, The Florida Bar, and Charles W. Arnold, Jr., Bar Counsel, of Arnold, Stratford & Booth, Jacksonville, for complainant.
    William J. Sheppard, Jacksonville, and Alan B. Morrison, Public Citizen Litigation Group, Washington, D.C., for respondent.
    Albert J. Hadeed of Southern Legal Counsel, Inc., Gainesville, for amicus curiae.
   PER CURIAM.

The Florida Bar filed petitions charging Rosemary W. Furman, d/b/a Northside Secretarial Service, with engaging in the unauthorized practice of law in the State of Florida, in contempt of this Court’s order of November 1, 1979, as reported in The Florida Bar v. Furman, 376 So.2d 378 (Fla.1979), appeal dismissed, 444 U.S. 1061, 100 S.Ct. 1001, 62 L.Ed.2d 744 (1980). The charges were assigned to a referee and a report returned for our consideration. We have jurisdiction under article V, section 15 of the Florida Constitution and The Florida Bar Integration Rule, article XVI.

A brief recitation of the prior history of this case is necessary. Respondent Fur-man is not and never has been a member of The Florida Bar (Bar) and is not licensed to practice law within this state. In 1977, the Bar filed petitions with this Court alleging that respondent had engaged in the unauthorized practice of law by giving legal advice and by rendering legal services in connection with marriage dissolutions and adoptions in the years 1976 and 1977. More specifically, the Bar alleged that respondent performed legal services by soliciting information from customers and by preparing legal pleadings for them in violation of Florida law and that, through advertising, respondent held herself out to the public as having legal expertise in Florida family law. We appointed a referee to receive evidence and to make findings of fact, conclusions of law, and recommendations as to the disposition of the case. In due course the referee submitted findings that respondent had engaged in the unauthorized practice of law and recommended that she be adjudged guilty of contempt of this Court. We found respondent guilty and permanently enjoined and restrained her from further engaging in the unauthorized practice of law, as specified, but did not find her guilty of contempt.

Oh September 28, 1982, and March 9, 1983, the Bar filed petitions alleging six and ten instances, respectively, wherein respondent had continued her unauthorized practice of law in contempt of this Court’s order. We issued rules to show eause on November 30, 1982, and March 21, 1983, respectively, and appointed a referee to receive evidence and to make findings of fact, conclusions of law, and recommendations. The referee conducted pretrial hearings, consolidated the rules, and set eviden-tiary hearings for June 20 and 21, 1983. On June 20, 1983, we denied respondent’s motions for a stay of the proceedings and for trial by jury. Respondent chose not to testify at the evidentiary hearings. The uncontradicted testimony of former customers of respondent was that she advised them to falsify information in marriage dissolution papers and to conceal relevant information from the courts acting on the dissolution petitions. Her purported reasons were various: it’s none of their damn business, they don’t pay any attention to the information, or you’ll (either) get less or give more money in the dissolution judgment. In one instance, respondent advised a wife who had been married, divorced, and remarried to the same husband but could not remember the date of the remarriage to insert the date of the dissolved first marriage as the date of the second marriage in the petition for dissolution. Another couple who disagreed on whether their stipulation on child custody provided for $35 per week or $35 per child was advised that it didn’t matter because the judge awarded whatever he wanted to anyway. In a particularly egregious instance, respondent assisted a husband seeking a marriage dissolution in preparing a stipulation in which he agreed to child custody by the wife. While the dissolution petition and child custody stipulation were pending before the court, the husband became aware that the wife was abusing the children, took actual custody of the children, and consulted respondent about withdrawing his stipulated agreement on child custody. Respondent advised him not to do so because this would require “starting over” on the dissolution petition and he should let the social agency (HRS) handle the child abuse and custody problem.

At the conclusion of the evidentiary hearings, the referee scheduled briefing and the case was orally argued on August 15,1983. Both parties were given an opportunity thereafter to submit proposed orders for the referee’s consideration. On September 28, 1983, the referee set a hearing for October 10, 1983, to announce his findings and recommendations and to hear arguments in aggravation or mitigation, if appropriate. At the beginning of the hearing, the referee distributed draft copies of his prospective order and announced the highlights of the order from the bench. The draft recommended that respondent be held in indirect criminal contempt and that she be sentenced to unspecified terms of imprisonment. The referee then offered respondent an opportunity to present evidence and argument in mitigation and recessed the hearing for a short time to permit respondent to consider her options. Respondent chose not to testify or present evidence, but joined the Bar in presenting arguments, after which the referee entered the order under consideration. The order recommended concurrent four-month sentences in state prison.

Respondent raises five objections to the referee’s report. She initially argues that she was entitled to a jury trial under both the sixth amendment and the due process clause of the fourteenth amendment, United States Constitution. This argument fails for the following reasons. These original proceedings were conducted under The Florida Bar Integration Rule, article XVI, which provides that the punishment for indirect criminal contempt shall not exceed a fine of $2,500 or imprisonment of up to five months or both. On sixth amendment grounds, respondent urges that she was potentially subject to five months’ imprisonment and a fine of $2,500 for (a) each of the sixteen alleged instances of unauthorized practice of law, or for (b) each of the two rules, charging indirect criminal contempt. It is respondent’s position that these potential punishments were so severe that they entitled her to a jury trial. In addition, respondent urges that the potential punishment of imprisonment and a fine of $2,500 for even a single conviction was sufficiently severe to entitle her to a jury trial. Further, she also argues that any potential fine above $500 entitled her to a jury trial. In support of her position, respondent cites a cornucopia of federal case law which she asserts supports her position. We disagree. First, as to whether it is the potential or actual punishment that determines the seriousness of the offense and the right to a jury trial, the United States Supreme Court has held that “our cases hold that petty contempt like other petty criminal offenses may be tried without a jury and that contempt of court is a petty offense when the penalty actually imposed does not exceed six months or a longer penalty has not been expressly authorized by statute.” Taylor v. Hayes, 418 U.S. 488, 495, 94 S.Ct. 2697, 2701, 41 L.Ed.2d 897 (1974) (emphasis supplied) (citations omitted). Respondent asserts that a longer penalty is expressly authorized by the Integration Rule, article XVI, and that she is thereby entitled to a jury trial. Respondent overlooks Aaron v. State, 284 So.2d 673 (Fla.1973). In Aaron, we recognized that Florida law theretofore had permitted the judge to be trier of both the law and facts and to impose punishments of greater than six months for criminal contempt. In order to reconcile Florida law with United States constitutional law, we held that all provisions of Florida law authorizing the judge to be the trier of both law and facts were limited to sitúa-, tions in which the judge contemplated, if a finding of guilt be made, the imposition of a sentence of six months or less and, further, that when a court denied a pretrial motion for trial by jury it could not thereafter impose a sentence greater than six months. Id. at 676-77. Our constitutional holding in Aaron reduces all criminal contempt offenses to petty offenses when the judge acts as trier of fact and law, barring waiver of the right to jury trial by the respondent, and reduces or restricts the punishment for criminal contempt, potential or actual, to that which may be imposed for petty criminal offenses. The Aaron holding is consistent with Taylor, 418 U.S. at 496, 94 S.Ct. at 2702, where the Court upheld the power of a state appellate court to obviate the right to a trial by jury by reducing a contemnor’s sentence to six months or less rather than retrying the contempt with a jury. As applied here we note (1) that we earlier denied respondent’s motion for a jury trial, thereby bringing the Aaron rule into play; (2) that the actual recommendation of the referee is for two concurrent sentences of four months’ imprisonment without a fine, and that this is permitted by Aaron and Taylor; and (3) that in a proceeding such as this, it is this Court that imposes the sentence, not the referee, and we have the power, as in Aaron and Taylor, to reduce sentences as necessary to meet constitutional imperatives. We also reject respondent’s contention that a potential fine of more than $500 is itself severe enough to entitle her to a jury trial. It is the actual fine imposed by the state not the potential fine which controls. Here, there is no actual fine. We note, further, that the Court in Muniz v. Hoffman, 422 U.S. 454, 477, 95 S.Ct. 2178, 2190-91, 45 L.Ed.2d 319 (1975), expressly rejected the contention, that “a contempt must be considered a serious crime under all circumstances where the punishment is a fine of more than $500, unaccompanied by imprisonment.” Id. The Court there upheld a $10,000 fine imposed upon a labor union. Neither party has cited us to a case where either this Court or the United States Supreme Court has held that the amount of a fine, potential or actual, transforms a petty offense into a serious offense. We are not ourselves aware of any such case and are not faced with the issue here. We decline to adopt such a rule in obiter dictum.

On the issue of a sixth amendment right to trial by jury, respondent also argues that we should consider the collateral consequences of our holding her in contempt of court for continuing the unauthorized practice of law. Respondent’s point appears to be that she will not be able to continue her current business practices and will lose her livelihood. The loss of her livelihood, if such is the case, is unfortunate, but the fact of the matter is that she has no right to practice law without a license or to disobey this Court’s injunction.

Respondent also argues that she has a right under the due process clause to be tried by a jury of her peers because the referee, the Bar and its members, and all Florida judges, have, or appear to have, a pecuniary interest in this case. We reject this argument for two reasons. First, any pecuniary interest that individual judges or lawyers have in preventing respondent from practicing law is so minuscule as to be unidentifiable. City of Tallahassee v. Florida Public Service Commission, 441 So.2d 620 (Fla.1983). Indeed, based on the uncontradicted evidence from certain of her former customers that they had to retain attorneys in order to resolve problems arising from respondent’s services, it may .well be that respondent adds to the work load of properly licensed lawyers and judges by her unauthorized and maladroit attempts to practice law. Second, the general thrust and effect of her argument is that the state cannot use its legal system to regulate the practice of law or prohibit the unauthorized practice of law. The more specific thrust and effect of her argument is that respondent is above the law because she has anointed herself as the nemesis of the state’s legal system. We reject both the general and the specific proposition as mer-itless.

Respondent’s second objection is that the referee upheld an erroneous legal standard in determining whether respondent violated this Court’s injunction. The gist of respondent’s argument is that our order enjoining respondent, which incorporated The Florida Bar v. Brumbaugh, 355 So.2d 1186 (Fla.1978), is unclear as to what activities are enjoined and that the referee adopted an unreasonably expansive reading of the injunction in making his findings. In considering respondent’s argument, we follow the rule that the referee's findings must be approved unless they are erroneous or wholly lacking in evidentiary support. Furman, 376 So.2d at 381; Florida Bar v. Wagner, 212 So.2d 770 (Fla.1968). In Furman, we relied on and quoted at length from Brumbaugh, a case involving a similar secretarial business, in order to determine whether respondent’s activities warranted an injunction restraining her from the unauthorized practice of law, as the referee had recommended. Drawing from that extended quote, we extract only that portion dealing with enjoined activities:

[Respondent] must not, in conjunction with her business, engage in advising clients as to the various remedies available to them, or otherwise assist them in preparing those forms necessary for a dissolution proceeding. More specifically, [respondent] may not make inquiries nor answer questions from her clients as to the particular forms which might be necessary, how best to fill out such forms, where to properly file such forms, and how to present necessary evidence at the court hearings. Our specific holding with regard to the dissolution of marriage also applies to other unauthorized legal assistance such as the preparation of wills or real estate transaction documents. While [respondent] may legally sell forms in these areas, and type up instruments which have been completed by clients, she must not engage in personal legal assistance in conjunction with her business activities, including the correction of errors and omissions.

Furman, 376 So.2d at 381, quoting Brumbaugh, 355 So.2d at 1194. We then noted:

Before the referee and before this court, Furman admitted that she did not abide by the dictates of Brumbaugh. She says that it is impossible for her to operate her “do-it-yourself divorce kit” business in compliance with this court’s ruling in that ease. The bar alleges that Furman has engaged in the unauthorized practice of law as previously defined by this court. The referee so found. She so admits. We believe the referee’s findings are supported by the evidence.

Furman, 376 So.2d at 381. We repeat now what we said then: “Our directions could not have been clearer.” Id. Respondent’s contention that her activities were premised on a good-faith but erroneous interpretation of a vague and nonspecific order of this Court is totally meritless. Respondent’s claimed uncertainty about the nature and contents of our injunction appears to arise from a deliberate and intentional misapprehension of the effect of an injunction and the nature and posture of this case. In their briefs, respondent and amicus curiae (Southern Legal Counsel, Inc., which formerly represented respondent), have favored us with dissertations on what should or should not constitute the unauthorized practice of law and what measures this Court should initiate in order to provide free legal services in civil proceedings. Respondent’s brief, for example, asserts that “[w]hat has been at issue in both the prior proceedings and in this case is whether [respondent’s] activities constitute the unauthorized practice of law.” Not so. We are not here, in this instance, to consider the broad questions of what constitutes the unauthorized practice of law or what, if any, free legal services should be provided in civil actions. We are also not here to revisit Brumbaugh or Furman in order to determine whether the guidance and strictures therein should be amended. Had respondent initiated a motion before this Court requesting that we reexamine Brumbaugh and Furman, and perhaps modify the terms of our injunction, we would have considered such motion and the arguments presented on their merits. This is not the posture of the case. Respondent has been brought before this Court on charges of violating the terms of an earlier injunction and will not be permitted to rear-gue the merits of whether the injunction should have been issued. As we said long ago:

An injunction or restraining order must be obeyed until vacated or modified by the court awarding it, or by superior authority, or until the order or decree which granted it has been reversed on appeal, no matter how unreasonable and unjust the injunction may be in its terms, and no matter how flagrantly the rules of equity practice have been violated by the court in ordering it to issue.

Seaboard Air Line Railroad v. Tampa Southern Railroad, 101 Fla. 468, 477, 134 So. 529, 533 (1931). See also Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967); Howat v. Kansas, 258 U.S. 181, 42 S.Ct. 277, 66 L.Ed. 550 (1922).

We turn then to the referee’s findings that respondent contemptuously continued the unauthorized practice of law in violation of our injunction. The referee found in pertinent part:

J. Ms. Furman prepared pleadings that went beyond just transposing information from an intake sheet to a form. She articulated that information in a fashion which raised justicia-ble issues regarding child custody, child support, division of property.
K. Ms. Furman explained legal remedies and options to litigating parties which affected the procedural and substantive legal rights, duties, and privileges of those parties.
L. Ms. Furman construed and interpreted the legal effects of Section 61.13, Florida Statutes, pertaining to shared parental responsibility.
M. Ms. Furman gave advice on how to construct and prepare a financial picture that would result in increased monetary benefits or decreased monetary obligations as the case may be for the one seeking her advice, without regard for the truth, in some instances.
N. Ms. Furman, as part of her comprehensive legal assistance, gave advice and direction on how and where to file documents with instructions on how to technically prepare and litigate the case in Court.
O. Ms. Furman was available to her customers to correct erroneous or legally deficient pleadings that she had prepared, and to remedy problems experienced by her customers during the dissolution hearing which otherwise frustrated a conclusion thereto.
P. Ms. Furman professed to her customers to have knowledge of the weight and credibility that judges attach and give to legal documents and crucial legal information and evidence.
Q. Ms. Furman participated in oral dialogues with her customers regarding such issues as money for the support of children, safety of children from abusing parents, the placement of children with the most deserving parent, available remedies and options for litigating parties, her interpretation and understanding of legal documents and pertinent statutes, the financial status of husbands and wives as they bore on their need or ability to receive or pay, the ability of her customers to comply with financial Court-ordered obligations, the importance of Court orders and complications therewith, and corrective procedures for defective dissolution proceedings.
R. Ms. Furman, in each case, was paid a monetary fee ranging up to $100.00.

Of the sixteen alleged instances of unauthorized practices of law, four were nolle prossed by the Bar. The referee’s findings were based on a case-by-case examination and analysis of the twelve instances where evidence of unauthorized practice of law was introduced. The evidence consisted of the testimony of the customers involved in the specific instance and relevant documents or forms that respondent had prepared for the customer. This evidence was almost entirely uncon-tradicted except for cross examination. We have reviewed the findings on these twelve charges and find that they are supported by the evidence. We find no error and approve the findings of the referee.

Respondent’s third objection is that the referee improperly rejected the defense of laches regarding four alleged instances of the unauthorized practice of law. Three of the four instances are at issue; the fourth was nolle prossed. It is uncontro-verted that the Bar knew of these three reported instances when it filed its first petition with this Court in September, 1982, but chose to withhold them at that time. These three instances were later included in the second petition of March, 1983. Respondent’s position is that she routinely destroyed material from her files concerning these earlier alleged instances and that she was prejudiced in her defense by not having the material available to show that the customers prepared “intake forms” from which she prepared legal forms. The Bar counters that although it knew of the reported instances in September, 1982, it had not completed its investigation at that time and was not prepared to go forward with the charges. Laches is an affirmative defense which must be pleaded and proved by clear and positive evidence. Van Meter v. Kelsey, 91 So.2d 327 (Fla.1956). The referee considered respondent’s evidence on laches and found it insufficient to prove the defense. We agree. The evidence produced by the Bar on these three instances consisted of the testimony of the customers showing that respondent had orally interviewed them and advised them on various legal points contrary to this Court’s order enjoining such activities. The preparation of intake forms could not have obviated the contemptuous conduct.

Respondent’s fourth objection is that the referee erred in failing to dismiss the second rule to show cause because of procedural irregularities. Reports of the unauthorized practice of law are investigated and disposed of in accordance with Integration Rule, article XVI. Local committees are established throughout the state to receive and investigate such reports and to forward them to The Florida Bar for further investigation, processing, and disposition. There is also a Standing Committee on Unauthorized Practice of Law which functions statewide to oversee the local committees and perform various other duties. These duties include submitting recommendations to the Bar’s Board of Governors on instituting litigation, supervising such litigation, and conducting investigations of unauthorized practice on its own behalf or in concert with local committees. The charges contained in the first petition or rule were investigated by the local committee, forwarded to the Standing Committee, considered and approved by the Standing Committee, and a recommendation made to the Board of Governors that litigation be initiated. The Board of Governors approved the litigation and the chairman of the Standing Committee prepared and signed a petition to this Court which commenced the litigation against respondent. The respondent does not contest the propriety of the procedures followed in filing the first petition or that the litigation was properly initiated. Respondent contends, however, that these procedures were not followed in the second petition and, for that reason, the second petition should have been dismissed. More specifically, respondent argues that the petition was not investigated by the local committee. Article XVI authorizes the Standing Committee to investigate the unauthorized practice of law either on its own or in concert with local committees. There is no requirement either in article XVI or in logic to require that all investigations be first conducted by the local committee. This is particularly so, when, as here, initial charges have been investigated and considered by the local committee, and the Standing Committee is engaged in an ongoing investigation and in supervising litigation which has already been initiated against the particular respondent.

Respondent also argues that the second petition was filed by the chairman of the Standing Committee prior to its approval by the Standing Committee and the Board of Governors. This argument is also without merit. The petition for the second rule, signed as was the first petition by the chairman of the Standing Committee, was filed with this Court on March 9, 1983. The petition was approved by the Standing Committee on March 11 at its meeting and thereafter by the Board of Governors. We did not act on the petition until March 21. Although it would have been preferable as a matter of procedural rectitude had the Standing Committee and Board of Governors approved the petition before it was actually filed, we note that litigation against respondent had been properly approved beforehand, the second petition was in the nature of an amendment to the earlier charges, and approval of the Standing Committee, and presumably the Board of Governors, was obtained prior to our acting on the petition on March 21. We are satisfied that respondent was afforded due process and that the claimed improprieties are inconsequential.

The respondent’s fifth objection to the referee’s report is that the referee decided on the sentence before hearing respondent’s evidence in mitigation. Respondent’s point is that the referee came to the hearing on October 10, 1983, with a draft of a prospective order recommending imprisonment, and the contents of this draft order indicated that he was rejecting in advance any argument that might be made in mitigation. Respondent concedes that she was given the opportunity to present evidence in mitigation, but asserts that she declined to do so because of her perception that the referee, like all judges, was biased, and, therefore, it would have been pointless. Respondent’s contentions are merit-less. Extensive hearings had been conducted prior to the hearing on October 10, 1983. That hearing was for the purpose of announcing the referee’s findings on the merits of the case and to provide the parties the opportunity to present evidence in mitigation or aggravation in the event the referee recommended a finding of contempt. Both parties had been given an opportunity to present proposed findings and were on notice of the purpose of the hearing. Predrafted orders are commonplace, and under the circumstances it was not unusual or improper for the referee to have such an order on hand at the beginning of the hearing. Respondent was given an opportunity to consider her options, did so, and chose not to testify or present evidence in mitigation. Having voluntarily waived the right to present such evidence to the referee and this Court, respondent cannot now complain that it would have been rejected anyway. Respondent’s assertions have no legal merit.

Turning to the referee’s recommendations, we approve the findings that respondent has violated the terms of our order enjoining and restraining her from performing the specific acts therein prohibited. We hold her in contempt of court. We, however, do not accept the referee’s recommendation that she be imprisoned in the state prison for two concurrent four-month terms. Under the facts of this case, we find it more appropriate to sentence respondent to the Duval County jail for a single term of 120 days. We suspend 90 days of the 120-day term of imprisonment. When this opinion becomes final, the sheriff of Duval County is authorized and directed to take respondent into custody and to imprison her for 30 days. If respondent does not violate the terms of our continuing injunction for a period of two years, the suspended term of 90 days shall be deemed satisfied.

The terms and provisions of our previous order permanently enjoining and restraining respondent remain in effect.

Costs of these proceedings are taxed against the respondent, Rosemary Furman.

It is so ordered.

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

OVERTON, J., concurs specially with an opinion.

McDONALD, J., concurs with an opinion, in which EHRLICH, J., concurs.

OVERTON, Justice,

specially concurring.

I fully concur with the majority opinion.

Ms. Furman’s “clerical service” is a profit-making enterprise. She has not just prepared forms for a fee; the uncontroverted evidence reflects that she has advised her customers to take actions that were contrary to their best interests and, even more egregious, has advised her customers to provide the court with false or misleading information. This conduct not only constitutes the unlawful practice of law but it also corrupts the judicial process. If Ms. Furman were a lawyer, this conduct would be a serious disciplinary offense that could lead to disbarment.

Without question this Court should do everything possible to assure that the courts are both available and affordable to all segments of the public, but that does not mean that we should allow Ms. Fur-man’s service to continue in the manner in which she has operated it. Allowing this type of conduct to exist unchecked will not solve the problem of providing proper legal services to those with limited incomes.

Although much remains to be done, this state is aggressively moving forward in providing legal services in civil cases through simplified procedures and expanding legal aid and legal referral services, in addition to establishing a procedure to obtain funds for these legal aid services through interest on lawyers’ trust accounts.

In this case there is no question that Ms. Furman has gone much further than assisting her customers in filling out the forms. The record conclusively reflects that she has willfully. violated this Court’s order.

McDONALD, Justice,

concurring.

There are many professions and businesses that are regulated by law. E.g., chs. 456 — 468, Fla.Stat. Most of these are supervised by the Department of Professional Regulation. The Florida Constitution, article V, section 15, and chapter 454, Florida Statutes, however, have granted to The Florida Supreme Court the power and authority to govern and regulate admissions of attorneys. Whatever the business or profession, the underlying policy of regulation is to protect the public and assure that those performing certain tasks are qualified to do so. Attendant to such regulation is the discipline and assessment of penalties for those who trespass into a field of service for which they are not qualified. In the case of the unauthorized practice of law that responsibility rests with this Court.

It was in this setting that we first met Ms. Furman in 1979. The Florida Bar v. Furman, 376 So.2d 378 (Fla.1979). The Court analyzed activities in which she was involved and determined them to be the unlawful practice of law. It was not claimed at that time that anyone had been injured by her conduct, but the likelihood of legal injury occurring, should her conduct persist, was manifest. Hence, we enjoined her from certain conduct which we determined to be the unauthorized practice of law. An injunction is an order directed to a person to either cease doing something that is presently being done or else to do a certain thing. Such an order must be clear and concise. Ms. Furman’s was.

Once a valid court order is entered, its violation may result in criminal contempt. We are a nation of laws and are expected to follow the directions of judicial orders. Otherwise court orders would have no meaning, and mass refusal to follow such orders could result in anarchy. The right, and the will, to enforce valid court orders is not only proper, but mandated. The legislature recognized this by enacting sections 38.22 and 38.23, Florida Statutes (1983), specifically authorizing the courts to punish for contempt.

We have promulgated a rule for general indirect criminal contempt, Florida Rule of Criminal Procedure 3.840. We have also promulgated a specific rule for an indirect contempt proceeding where the complaint is the unauthorized practice of law, Florida Bar Integration Rule, article XVI. Each contains constitutional safeguards — a concise charging document, a hearing with an opportunity to confront witnesses, an opportunity to reply to the charges, and the opportunity to show mitigating circumstances. A jury trial is not necessary, but the trier of fact must be satisfied of guilt beyond a reasonable doubt. Under the Bar rule punishment is limited to a five-month incarceration and a fine of $2,500. Ms. Furman was tried pursuant to this rule, and the circuit judge, sitting as a referee, found her guilty.

Ms. Furman chose not to present any evidence, and one has to suppose what her defenses, other than the procedural claim of a right to a trial, are. Can it be said that this Court’s original order was vague or impossible to understand and .comply with? Is the subject of the order a matter over which this Court has no jurisdiction? Was the proof of guilt wanting? Were there any state or federal constitutional impediments to the original order on these proceedings? The answer to all of these questions is no.

Ms. Furman’s motives were commercial in nature. Her business is not to help the poor, as some questioners of this proceeding suggest, but to earn dollars. Her acts of disregarding this Court’s order appear intentional. The inevitable result is a mandated finding of guilt for pursuing a course of conduct that violates an order of this Court prohibiting the unauthorized practice of law. I concur, therefore, in the majority’s finding Ms. Furman in indirect criminal contempt of court.

EHRLICH, J., concurs.


source: Caselaw Access Project

author: ADKINS, Justice.

license: Public Domain

text:
    Larry Harold GURGANUS, Appellant, v. STATE of Florida, Appellee.
    No. 62432.
    Supreme Court of Florida.
    May 3, 1984.
    Rehearing Denied July 10, 1984.

      Carl S. McGinnes, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.
   ADKINS, Justice.

This is a direct appeal from judgments adjudging appellant guilty of two counts of first-degree murder and two counts of attempted first-degree murder with a firearm. At sentencing, appellant (Gurganus) was sentenced to death and life imprisonment, respectively, for the two first-degree murder convictions. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

On the afternoon of September 10, 1981, Gurganus walked into a convenience store in Bay County where his ex-wife was employed, brandished a gun, and ordered the three customers present to lie down. Gur-ganus then demanded that his ex-wife leave the store with him. He threatened to shoot her and the customers if she refused. She refused his demands and he shot her. He also shot each of the three customers once in the head, and shot at and struck another customer who happened to enter the store while this scene was unfolding. Gurganus then walked out of the store, drove off, and was later apprehended by police while walking down the road. As a result of the shootings, Gurganus’ ex-wife and one of the customers died.

Gurganus was subsequently indicted by the Bay County grand jury on two counts of first-degree murder and three counts of attempted first-degree murder with a firearm. The defense gave notice that insanity would be relied upon as a defense. At trial a physician testified that Gurganus was under medication for severe headaches at the time of the shootings. The medication was Fiorinal, which is a barbituate compound. It was shown that the depressant effect of Fiornal would be multiplied if taken in conjunction with alcohol. The physician testified that the combined use of Fiorinal and alcohol in some instances could lead to violent behavior. A pharmacist testified that he had filled a Fiorinal prescription for Gurganus consisting of thirty-four capsules on the day prior to the shootings. Further testimony showed that a prescription container with five Fiorinal capsules inside was recovered from Gurganus’ possessions immediately after his arrest. It was unclear whether this was the same prescription that had been filled the previous day. Finally, evidence that Gurganus may have been drinking immediately prior to the shootings, as well as conflicting evidence of his appearance and behavior at the time of his arrest, was introduced.

Gurganus also attempted to introduce into evidence the testimony of two clinical psychologists who had examined him several times after his arrest. As a result of the state’s objections on the grounds of irrelevancy, it was decided that the testimony would first be proffered to the trial court outside the presence of the jury. The testimony of both experts was based on the direct examinations of Gurganus and on hypothetical questions posed by the defense concerning the actions of an individual with a background similar to Gurganus’ who had ingested twenty-nine Fiorinal capsules in a twenty-four hour period along with alcohol. The defense maintained that the expert testimony was relevant to several issues concerning Gurganus’ state of mind at the time of the shootings. After hearing the proffered testimony, the trial judge refused to allow it into evidence on the grounds that the testimony was irrelevant.

At the close of the trial the trial judge instructed the jury on the charges of first-degree murder and attempted first-degree murder. He explained to the jury that the state’s case would be satisfied if the jury found beyond a reasonable doubt that the murders or attempted murders were the result of either a premeditated design or occurred during the commission of a felony, specifically, whether the shootings occurred during the kidnapping or attempted kidnapping of Gurganus’ ex-wife. After deliberation the jury returned guilty verdicts on the two counts of first-degree murder and acquitted Gurganus on the third count. At the sentencing proceeding the jury recommended life imprisonment for the killing of Gurganus’ ex-wife and a sentence of death for the killing of the customer. The trial judge followed these recommendations in passing sentence finding three aggravating factors in support of the death sentence and only one mitigating factor. In addition, the trial judge sentenced Gurganus to two consecutive life terms for the attempted first-degree murder convictions.

The first issue which Gurganus raises relates to the guilt portion of the trial. Specifically, Gurganus urges that it was harmful error for the trial judge to exclude the proffered testimony of the two clinical psychologists from evidence. Because we agree with Gurganus we find it unnecessary to address those issues concerning sentencing and we reverse the convictions and remand to the trial court with instructions to grant Gurganus a new trial.

During the proffer of the psychologists’ testimony the defense made it clear that the testimony was intended to be considered as evidence on three issues relating to Gurganus’ state of mind at the time of the shootings: insanity; whether Gurga-nus’ actions more closely resembled a “depraved mind” as opposed to premeditated behavior; and whether Gurganus was able to entertain the specific intent required to convict him of first-degree murder under either the premeditated or felony murder theories taking into consideration the effects of the combined consumption of drugs and alcohol. We will address the trial judge’s decision to exclude the testimony as irrelevant on each of these three issues.

It is well established in Florida that the test for insanity, when used as a defense to a criminal charge is the McNaughton Rule. Under McNaughton the only issues are: 1) the individual’s ability at the time of the incident to distinguish right from wrong; and 2) his ability to understand the wrongness of the act committed. Brown v. State, 245 So.2d 68 (Fla.1971), vacated on other grounds, 408 U.S. 938, 92 S.Ct. 2870, 33 L.Ed.2d 759 (1972); Campbell v. State, 227 So.2d 873 (Fla.1969), cert. dismissed, 400 U.S. 801, 91 S.Ct. 7, 27 L.Ed.2d 33 (1970); Zamora v. State, 361 So.2d 776 (Fla. 3d DCA 1978), cert. denied, 372 So.2d 472 (Fla.1979); Evans v. State, 140 So.2d 348 (Fla. 2d DCA 1962). Evidence which does not go toward proving or disproving an individual’s ability to distinguish right from wrong at the time of an incident is irrelevant under the McNaughton Rule, including evidence of irresistable impulsive behavior, Wheeler v. State, 344 So.2d 244, 246 (Fla.1977); Campbell, 227 So.2d at 877, evidence of diminished mental capacity, Brown, 245 So.2d at 71, or evidence of psychological abnormality short of an inability to distinguish right from wrong, Evans, 140 So.2d at 349.

The proffered testimony of the two psychologists shows that their opinions, based upon personal examination of Gurga-nus and the hypothetical scenario of Gurga-nus previously ingesting twenty-nine Fiori-nal tablets and a quantity of alcohol, were that Gurganus “was not in effective control of his behavior,” that he had “a mental defect,” and that his judgment “would have been seriously impaired.” When asked specifically about Gurganus’ ability to distinguish right from wrong at the time of the offense, neither psychologist was able to state within a reasonable degree of certainty that Gurganus did or did not have that ability. The testimony of both was that there were equal probabilities of Gur-ganus’ sanity and insanity under the McNaughten Rule. In effect, neither psychologist was able to form an opinion on the issue. We find this testimony to be of no evidentiary value because it did no more to prove Gurganus’ case than it did to prove the state’s case. Since it did not tend to prove or disprove the legal insanity of Gurganus, we agree with the trial court’s decision to exclude the testimony on this issue as being irrelevant.

The second issue, whether the defendant’s behavior at the time of the offense more closely resembled a “depraved mind” than a premeditated plan, is basically a question of the proper scope of expert testimony. During the proffer the defense had read to each psychologist a lengthy hypothetical set of facts based on both facts in the record and facts which could be inferred from the record. These facts included the assumption that Gurganus had used drugs and alcohol immediately prior to the offense. The defense attorney asked each psychologist to give his opinion as to whether Gurganus’ actions were closer to a “depraved mind” than to a premeditated plan. The trial court refused to allow either psychologist to render an opinion stating that, regardless of the opinion, the testimony would not be allowed to go to the jury on the grounds that it was irrelevant and an improper infringement on an issue properly to be decided by the jury.

We recognize that:

The trial court has broad discretion in determining the range of subjects on which an expert witness may be allowed to testify, and, unless there is a clear showing of error, its decision will not be disturbed on appeal.... This discretion, however, is not boundless and expert testimony should be excluded where the facts testified to are of such a nature as not to require any special knowledge or experience in order for the jury to form conclusions from the facts.

Johnson v. State, 393 So.2d 1069, 1072 (Fla.1980), cert. denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981). We find that the opinions the psychologists were asked to give in this case were not the proper subject of expert testimony. The defense was attempting to elicit a bottom-line opinion as to whether the actions of Gurganus were those of a “depraved mind” or a “premeditated plan.” Both of these terms are legal terms with specific legal definitions. Essentially, the defense was attempting to elicit the psychologists’ opinions as to whether Gurganus committed second-degree or first-degree murder. Such a conclusion was a legal conclusion no better suited to expert opinion than to lay opinion and, as such, was an issue to be determined solely within the province of the jury. See, e.g., United States v. Milne, 487 F.2d 1232, 1235 (5th Cir.1973) (in drawing distinctions between expert opinion concerning insanity and expert opinion concerning criminal capacity, court stated that “[c]riminal capacity is a legal conclusion and even an expert, medical or legal, may not speak so as to employ a legal definition”). We find that the trial court did not abuse its discretion and we uphold the trial court’s exclusion of the psychologists’ testimony on this basis.

On the third basis in which the testimony was not admitted as evidence, we find merit to Gurganus’ argument. As discussed earlier, Gurganus intended to use the testimony as evidence of his intoxication and resulting inability to entertain a specific intent at the time of the offense. To set up the proper foundation for the expert testimony the defense questioned the psychologists on the basis of a hypothetical set of facts, the most important of which was the hypothetical fact of Gurga-nus’ consumption of the Fiorinal capsules combined with alcohol. The record certainly contained sufficient facts from which the' jury could have properly inferred Gurga-nus’ consumption of the drugs and alcohol and, therefore, questions and opinions regarding his state of mind at the time of the offense based on such hypothetical facts were proper. See Fouts v. State, 374 So.2d 22 (Fla. 2d DCA 1979), disapproved on other grounds, Parker v. State, 408 So.2d 1037 (Fla.1982).

It is clear that Gurganus’ ability to entertain a specific intent at the time of the offense, an element required to be proved by the state, was a relevant issue pertaining to both the first-degree murder and the attempted first-degree murder charges regardless of whether the state sought conviction under either a premeditated or a felony murder theory. To convict an individual of premeditated murder the state must prove, among other things, a “fully-formed conscious purpose to kill, which exists in the mind of the perpetrator for a sufficient length of time to permit of reflection, and in pursuance of which an act of killing ensues.” Sired v. State, 399 So.2d 964, 967 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982). Obviously, this element includes the requirement that the accused have the specific intent to kill at the time of the offense. E.g., Snipes v. State, 154 Fla. 262, 17 So.2d 93 (1944); Chisolm v. State, 74 Fla. 50, 76 So. 329 (1917). Likewise, specific intent to kill is also an element to be proved by the state in a charge of attempted first-degree premeditated murder. Fleming v. State, 374 So.2d 954 (Fla. 1979); Deal v. State, 359 So.2d 43 (Fla. 2d DCA 1978).

In order to prove first-degree felony murder the state need not prove premeditation or a specific intent to kill but must prove that the accused entertained the mental element required to convict on the underlying felony. Jacobs v. State, 396 So.2d 1113 (Fla.1981), cert. denied, 454 U.S. 933, 102 S.Ct. 430, 70 L.Ed.2d 239 (1981); Adams v. State, 341 So.2d 765 (Fla. 1976), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 158 (1977). This is also true for attempted first-degree felony murder. The state needs to prove that the accused did intend to commit the felony. Robles v. State, 188 So.2d 789 (Fla.1966); DeLoach v. State, 388 So.2d 31 (Fla. 3d DCA 1980). The underlying felony in the present case was attempted kidnapping. In order to convict on attempted kidnapping the state must prove the attempted kidnapping was made with the specific intent to either: 1) hold for ransom or reward or as a shield or hostage;. 2) commit or facilitate commission of any felony; 3) inflict bodily harm upon or terrorize the victim or another person; or, 4) interfere with the performance of any governmental or political function. § 787.01(l)(a), Fla. Stat. (1981). It is clear that each crime for which Gurganus was convicted, whether under a premeditated or a felony-murder theory, required the state to prove beyond a reasonable doubt that Gurganus did have a specific intent at the time of the offense.

When specific intent is an element of the crime charged, evidence of voluntary intoxication, or for that matter evidence of any condition relating to the accused’s ability to form a specific intent, is relevant. Cirack v. State, 201 So.2d 706 (Fla.1967); Garner v. State, 28 Fla. 113, 9 So. 835 (1891). As such it is proper for an expert to testify “as to the effect of a given quantity of intoxicants” on the accused’s mind when there is sufficient evidence in the record to show or support an inference of consumption of intoxicants. Cirack, 201 So.2d at 709. In this case, after having been told to presume that Gurganus had ingested Fiorinal and alcohol the psychologists testified that Gurganus would have a lessened capability for making rational choices and directing his own behavior, he would not be in effective control of his behavior, and would have had a mental defect causing him to lose his ability to understand or reason accurately. We find these responses to be relevant to the issue of Gurganus’ ability to form or entertain a specific intent at the time of the offense. Their exclusion from evidence was error.

In addition to the testimony concerning the effects of the drugs and alcohol, statements were made by the psychologists on both direct and cross-examination concerning their personal examinations of Gurganus subsequent to his arrest. Both testified that, in their opinion, Gurganus was unable to recall the events immediately surrounding the shootings and that this was one of the rare occurrences where such amnesia or inability to recall was genuine. One of the psychologists took this observation further and testified that such genuine amnesia is directly connected to the rationality or the pre-planning of the acts which are unable to be recalled later and that an individual who does act in a rational, pre-planned manner is unable to genuinely block the events from memory after the event. Regardless of the weight or truth of this testimony, we find the testimony to be relevant to the issue of Gurganus’ mental capacity at the time of the offense, particularly to the element of premeditation. We hold that it was also error for the trial court to exclude this portion of the testimony.

Having determined that the trial court erred in excluding the testimony, we must decide if the error was, nevertheless, harmless. Since the improper exclusion of the psychologists’ testimony deprived Gurganus of his sixth and fourteenth amendment rights to provide witnesses on his own behalf, we must evaluate the exclusion according to the harmless constitutional-error rule articulated by the United States Supreme Court. The proper test is whether there is a reasonable possibility that the lack of the evidence complained of might have contributed to the conviction or, in other words, was the error harmless beyond a reasonable doubt. Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Gurganus did not present any other evidence relating to the effect of the drugs and alcohol on his state of mind at the time of the offense. There was sufficient evidence in the record on which the jury could have inferred that Gurganus did consume the intoxicants. The defense argued vigorously that Gurga-nus was intoxicated to the point of being unable to entertain the requisite intent at the time of the offense and the jury was instructed on the issue of voluntary intoxication as it related to the state of mind of Gurganus. After having reviewed the record as a whole, we are unable to say, although the state’s evidence was substantial, that the exclusion of the testimony was harmless beyond a reasonable doubt. We find that the issues of intoxication and specific intent were crucial to Gurganus’ defense and he should have been permitted to introduce this expert testimony. Therefore, we reverse all four of Gurganus’ convictions and remand this case to the circuit court with instructions to grant defendant a new trial.

It is so ordered.

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


author: PER CURIAM.

text:
    THE FLORIDA BAR: AMENDMENT to RULES of CRIMINAL PROCEDURE (3.701, 3.988-SENTENCING GUIDELINES).
    No. 65216.
    Supreme Court of Florida.
    May 8, 1984.
    Robert Wesley, Staff Counsel, Tallahassee, for the Sentencing Guidelines Com’n, petitioner.
   PER CURIAM.

Acting under the provisions of section 921.001(4)(b), Florida Statutes (1983), the Sentencing Guidelines Commission has presented to this Court recommendations for changes in sentencing guidelines which require modification of criminal rules of procedure 3.701 and 3.988. We have reviewed the recommendations and approve the changes. As with our original adoption of sentencing guidelines, In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983), the Committee Notes adopted herein are part of these rules.

It is so ordered.

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

ADKINS, J., dissents.

RULE 3.701. SENTENCING GUIDELINES

a. This rule is to be used in conjunction with forms 3.988(a)-(i).

b.Statement of Purpose

The purpose of sentencing guidelines is to establish a uniform set of standards to guide the sentencing judge in the sentence decision-making process. The guidelines represent a synthesis of current sentencing theory and historic sentencing practices throughout the state. Sentencing guidelines are intended to eliminate unwarranted variation in the sentencing process by reducing the subjectivity in interpreting specific offense- and offender-related criteria and in defining their relative importance in the sentencing decision.

The sentencing guidelines embody the following principles:

1. Sentencing should be neutral with respect to race, gender, and social and economic status.
2. The primary purpose of sentencing is to punish the offender. Rehabilitation and other traditional considerations continue to be desired goals of the criminal justice system but must assume a subordinate role.
3. The penalty imposed should be commensurate with the severity of the convicted offense and the circumstances surrounding the offense.
4. The severity of the sanction should increase with the length and nature of the offender’s criminal history.
5. The sentence imposed by the sentencing judge should reflect the length of time to be served, shortened only by the application of gain time.
6. While the sentencing guidelines are designed to aid the judge in the sentencing decision and are not intended to usurp judicial discretion, departures from the presumptive sentences established in the guidelines shall be articulated in writing and made only for clear and convincing reasons.
7. Because the capacities of state and local correctional facilities are finite, use of incarcerative sanctions should be limited to those persons convicted of more serious offenses or those who have longer criminal histories. To ensure such usage of finite resources, sanctions used in sentencing convicted felons should be the least restrictive necessary to achieve the purposes of the sentence.

c. Offense Categories

Offenses have been grouped into nine (9) offense categories encompassing the following statutes:

Category 1: Murder, manslaughter: Chapter 782 [except subsection 782.-04(l)(a) ] and subsection 316.1931(2)
Category 2: Sexual offenses: Chapters 794 and 800 and section 826.04
Category 3: Robbery: Section 812.13
Category 4: Violent personal crimes: Chapters 784 and 836 and section 843.-01
Category 5: Burglary: Chapter 810 and subsection 806.13(3)
Category 6: Thefts, forgery, fraud: Chapters 322, 409, 443, 509, 812 (except section 812.13), 815, 817, 831, and 832
Category 7: Drugs: Chapter 893
Category 8: Weapons: Chapter 790
Category 9: All other felony offenses

d. General Rules and Definitions

1. One guideline scoresheet shall be prepared for each defendant covering all offenses pending before the court for sentencing. The state attorney’s office will prepare the scoresheets and present them to defense counsel for review as to accuracy in all cases unless the judge directs otherwise. The sentencing judge shall approve all scor-esheets.
2. “Conviction” means a determination of guilt resulting from plea or trial, regardless of whether adjudication was withheld or whether imposition of sentence was suspended.
& — “Primary offense” is defined as the most serious offense at conviction, — In the case of multiple offenses, the primary offense is determined on the basis of the following-:
a)-TAe-offenso-w-ith-the-highest statutory-degree — ⅛-⅛⅜-order of life felony, first degree felony punishable-by — Iif% ■first degree, second-degree, and third degree felonies; and
b) In the event of two (2) or more offenses of- the same degree, by the lowest numerical offense- eategor-y-.-
3. “Primary offense” is defined as the most serious offense at conviction. In the case of multiple offenses, the primary offense is determined in the following manner:
a) A separate guidelines scoresheet shall be prepared scoring each offense at conviction as the “primary offense at conviction” with the other offenses at conviction scored as “additional offenses at conviction.”
b) The guidelines scoresheet which recommends the most severe sentence range shall be. the scoresheet to be utilized by the sentencing judge pursuant to these guidelines.
4. Additional offenses at conviction: All other offenses for which the offender is convicted and which are pending before the court shall be scored as additional offenses based upon their degree and the number of counts of each.
5. a) “Prior record” refers to any past criminal conduct on the part of the offender, resulting in conviction, disposed of prior to the commission of the instant primary offense. Prior record includes all prior Florida, federal, out-of-state, military, and foreign convictions.
1) Entries in criminal histories which show no disposition, disposition unknown, arrest only, or other nonconviction disposition shall not be scored.
2) When scoring federal, foreign, military, or out-of-state convictions, assign the score for the analogous or parallel Florida statute.
3) When unable to determine whether an offense at conviction is a felony or misdemeanor, the offense should be scored as a misdemeanor. Where the degree of the felony is ambiguous or impossible to determine, score the offense as a third-degree felony.
4) Prior record shall include criminal traffic offenses, which shall be scored as misdemeanors.
5) Convictions which do not constitute violations of a parallel or analogous state criminal statute shall not be scored.
b) Adult record: An offender’s prior record shall not be scored if the offender has maintained a conviction-free record for a period of ten (10) consecutive years from the most recent date of release from confinement, supervision or sanction, whichever is later, to the date of the instant offense.
c) Juvenile record: All prior juvenile' dispositions which are the equivalent of convictions as defined in section d(2), occurring within three (3) years of the current conviction commission of the instant offense and which would have been criminal if committed by an adult, shall be included in prior record.
6. Legal status at time of offense is defined as follows:
Offenders on parole, probation, or community control; in custody serving a sentence; escapes; fugitives who have fled to avoid prosecution or who have failed to appear for a criminal judicial proceeding or who have violated conditions of a supersedeas bond; and offenders in pretrial intervention or diversion programs.
¾ — Victim injury shall-not be scored if not-⅜ factor of an offense at convic-
7. Victim injury shall be scored if it is an element of any offenses at conviction.
8. Guidelines ranges: The presumptive sentences provided in the guideline grids are assumed to be appropriate for the composite score of the offender. However, a sentence range is provided in order to permit some discretion without the requirement of a written explanation for departing from the presumptive sentence.
9. Mandatory sentences: For those offenses having a mandatory penalty, a scoresheet should be completed and the guideline sentence calculated. If the recommended sentence is less than the mandatory penalty, the mandatory sentence takes precedence. If the guideline sentence exceeds the mandatory sentence, the guideline sentence should be imposed.
10. Sentences exceeding statutory máxi-mums: If the composite score for a defendant charged with a single offense indicates a guideline sentence that exceeds the maximum sentence provided by statute for that offense, the statutory maximum sentence should be imposed.
11. Departures from the guideline sentence: Departures from the presumptive sentence guideline range should be avoided unless there are clear and convincing reasons to warrant aggravating or mitigating the sentence. Any sentence outside of the guidelines must be accompanied by a written statement delineating the reasons for the departure. Reasons-for deviating from the guidelines.shall- not include factors ■ relating-to either instant offense or prior arrests for which convictions have not been obtained. Reasons for deviating from the guidelines shall not include factors relating to prior arrests without conviction. Reasons for deviating from the guidelines shall not include factors relating to the instant offenses for which convictions have not been obtained.
12. Sentencing for separate offenses: A sentence must be imposed for each offense. However, the total sentence cannot exceed the total guideline sentence unless a written reason is given.
13. Community control, a form of intensive supervised custody in the community involving restriction of the freedom of the offender, is a sanction which the court may impose upon a finding that probation is an unsuitable disposition. When community control is imposed, it shall not exceed the term provided by general law.
14.Sentences imposed after revocation of probation or community control must be in accordance with the guidelines. The sentence imposed after revocation of probation may be included within the original cell (guidelines range) or may be increased to the next higher cell (guidelines range) without requiring a reason for departure.

COMMITTEE NOTE: (a) The operation of this rule is not intended to change the law or requirements of proof as regards sentencing.

(b) These principles are binding on the sentencing court.

(c) Only one category is proper in any particular case. Category 9, “All Other Felony Offenses,” should be used only when the primary offense at conviction is not included in another, more specific category. The guidelines do not apply to capital felonies.

Inchoate offenses are included within the category of the offense attempted, solicited, or conspired to, as modified by ch. 777.

If a defendant is to be-sentenced for a probation violation and the sentencing judge elects to revoke probationr-the-new sentence must be in accordance with the guidelines.-

(d)(1) Ultimate responsibility for assuring that scoresheets are accurately prepared rests with the sentencing court. Due to ethical considerations, defense counsel may not be compelled to submit a scoresheet. Probation and parole officers may be directed to compile guidelines scoresheets only when a presentence investigation has been ordered. The forms for calculating the guidelines are forms 3.988(a)-(i).

(d)(2) This definition applies to both instant offense and prior record scoring.

(d)(3) The proper offense category is identified upon determination of the primary offense. When the defendant is convicted of violations of more than one unique statute, the offenses are to be sorted by statutory degree. In the event of multiple offenses of the same statutory degree, the primary offense is identified by the corresponding offense category with the lowest numerical designation.

(d)(4) No points shall be scored for lesser and included offenses, or for offenses whieh-are-thesame as- offenses within the same act-or-transaction.-

(d)(5) Each separate prior felony and misdemeanor conviction in an offender’s prior record which amounts to a violation of Florida law shall be scored, unless discharged by the passage of time. Any uncertainty in the scoring of the defendant’s prior record shall be resolved in favor of the defendant, and disagreement as to the propriety of scoring specific entries in the prior record should be resolved by the trial judge.

Prior record includes all offenses for which the defendant has been found guilty, regardless of whether adjudication was withheld or the record has been expunged.

Juvenile dispositions,, with the exclusion of status offenses, are included and considered along with adult convictions by operation of this provision. However, each separate adjudication is discharged from consideration if three (3) years have passed between the date of disposition and the conviction for commission of the instant offense.

(d)(7) This provision implements the intention of the commission that points for victim injury be added only when the defendant is convicted of an offense (scored as either primary or additional offense) which includes physical impact or contact. Victim injury is to be scored for each victim for whom the defendant is convicted of injuring and is limited to physical trauma.

(d)(8) The first guideline cell in each category (any nonstate prison sanction) allows the court the flexibility to impose any lawful term of probation with or without a period of incarceration as a condition of probation, a county jail term alone or any nonincarcerative disposition. The presumptive sentences in the succeeding grids refer to commitments to state prison. Any presumptive sentence may include the requirement that a fine be paid. The presumptive sentences are found in forms 3.988(a)-(i).

(d)(10) If an offender is convicted under an enhancement statute, the reclassified degree should be used as the basis for scoring the primary offense in the appropriate category.

(d)(ll) Reasons for departure shall be articulated at the time sentence is imposed. The written statement shall be made a part of the record, with sufficient specificity to inform all parties, as well as the public, of the reasons for departure. The court is prohibited from considering offenses for which the offender has not been convicted. Other factors, consistent and not in conflict with the Statement of Purpose, may be considered and utilized by the sentencing judge.

Sentences — under—provisions—of the Youthful-Offender Act (ch. 958), the Mentally Disordered Sex — Offender Act (ch. 917), or — which—require participation-in drug rehabilitation-prog-rams (sec. 397.12) need not conform to-the-gwideUnesr

(d)(12) The sentencing court shall impose or suspend sentence for each separate count, as convicted. The total sentence shall not exceed‘the guideline sentence, unless the provisions of paragraph 11 are complied with.

If a split sentence is imposed (i.e., a combination of state prison and probation supervision), the incarcerative portion imposed shall not be less than the minimum of the guideline range- and-the total sanction imposed cannot exceed the maximum-guideline — ra/nge^ nor exceed the maximum of the range. The total sanction (incarceration and probation) shall not exceed the term provided by general law.

(d)(13) Community control is a viable alternative for any state prison sentence less than twenty-four (24) months without requiring a reason for departure.

(a) Category 1: Murder, Manslaughter

I. Primary offense at conviction

II.Additional offenses at conviction

III.Prior record

IV.Legal status at time of offense

No restrictions 0
Legal constraint 21

V. Victim injury (physical)

None 0
Slight 7
Moderate 14
Death or severe 21

(b) Category 2: Sexual Offenses

I. Primary offense at conviction

II. Additional offenses at conviction

III. Prior record

IV. Legal status at time of offense

Under no restrictions 0
Under legal constraint 30

V. Victim injury (physical)

No contact 0
Contact but no penetration 20
Penetration or slight injury 40
Death or serious injury 85

(c) Category 3: Robbery

I. Primary offense at conviction

II. Additional offenses at conviction

III. A. Prior record

B. Prior convictions for Category 3 offenses

Number prior convictions — X 25 =

IV. Legal status at time of offense

No restrictions 0
Legal constraint 17

V. Victim injury (physical)

None 0
Slight 7
Moderate 14
Death or severe 21

(d) Category 4: Violent Personal Crimes

I.Primary offense at conviction

II.Additional offenses at conviction

III.Prior record

IV. Legal status at time of offense

No restrictions 0
Legal constraint 36

V. Victim injury (physical)

None 0
Slight 12
Moderate 24
Death or severe injury 36

(e) Category 5: Burglary

I.Primary offense at conviction

II.Additional offenses at conviction

III.A. Prior record

B. Prior convictions for Category 5 offenses

Number prior convictions — X 5 =

IV. Legal status at time of offense

No restrictions 0
Legal constraint 10

V. Victim injury (physical)

None 0
Slight 5
Moderate 10
Death or severe 15

(f) Category 6: Thefts, Forgery, Fraud:

I.Primary offense at conviction

II.Additional offenses at conviction

III.A. Prior record

B. Prior convictions for Category 6 offenses

Number prior convictions — X 5 =

IV. Legal status at time of offense

No restrictions 0
Legal constraint 6

Y. Victim injury (physical)

None 0
Slight 3
Moderate 6
Death or severe 9

(g) Category 7: Drugs

I.Primary offense at conviction

II.Additional offenses at conviction

III.Prior record

IV.Legal status at time of offense

No restrictions 0
Legal constraint 14

V.Victim injury (physical)

None 0
Slight 5
Moderate 10
Death or severe 15

(h) Category 8: Weapons

I. Primary offense at conviction

II. Additional offenses at conviction

III. Prior record

IV. Legal status at time of offense

No restrictions 0
Legal constraint 12

V. Victim injury (physical)

None 0
Slight 4
Moderate 8
Death or severe 12

(i) Category 9: All Other Felony Offenses

I.Primary offense at conviction

II.Additional offenses at conviction

III.Prior record

IV.Legal status at time of offense

No restrictions 0
Legal constraint 24

V. Victim injury (physical)

None 0
Slight 8
Moderate 16
Death or severe 24

       The essential changes and reasons therefor are:
      1) Redefine “primary offense” (3.701(d)(3)). The existing definition has been criticized because it allows manipulation among the guideline categories. Because the proposed redefinition selects the category with the most severe punishment, it is anticipated that manipulation will be avoided.
      2) Revise 3.701(d)(5)(a) to result in greater precision when determining prior record. The date of commission of the "primary offense" (defined at 3.701(d)(3)) will now be controlling.
      3) Alter the time period for the calculation of juvenile prior record (3.701(d)(5)(c)). The existing provision makes juvenile record difficult to determine and hinges upon the date for the new conviction. The revision facilitates prior record determination by stopping the time period at the commission of the new offense. The revision includes a technical amendment to the Committee Note.
      4) Redefine "victim injury" (3.701(d)(7)). This change makes clear that victim injury points are to be included when physical injury is an element of an offense at conviction.
      5) Two revisions are made to 3.701(d)(ll). The first change is technical in nature and better expresses the sentencing discretion of the court. The end of this paragraph has been revamped to replace the cumbersome language in the current rule. A change in the Committee Note is included to further express the intent of the Commission.
      6) A new paragraph regarding violation of probation and community control is added to the rule (3.701(d)(14)).
      7) Revisions have been made to the guidelines scoresheets (3.988(a) — (i)). Each form has been revised to permit scoring offenses and prior convictions in excess of four counts. Additionally, tables for first-degree felonies punishable by life have been included in 3.988(a) and (e) for primary offense purposes. The prior record sections of each form have been revised to include tables for scoring first-degree felonies punishable by life.
      8) Increase the primary offense points in Category 2, Sexual Offenses, of rule 3.988, form (b). The revision increases the primary offense points by 20% and will result in both increased rates and length of incarceration for sexual offenders. This revision represents a substantial departure from pre-guidelines practice, but is consistent with the urgings of many commentators.
      9) The Committee Note to 3.701(d)(4) has been restricted in scope to avoid confusion.
      10) The Committee Note to 3.701(d)(8) has been amended to permit imposition of fines in accordance with prison sentences.
      11) Language has been added to the Committee Note to 3.701(d)(ll) which will require the sentencing court to disclose reasons for deviating from the guidelines at the time the sentence is imposed.
      12) The Committee Note to 3.701(d)(ll), which discusses statutory alternatives, has been completely eliminated. While these statutory alternatives are acknowledged, the sentencing court is required to explain the guideline departure when an alternative program is used.
      13) The Committee Note to 3.701(d)(12) has been revamped. This language will permit the sentencing court to impose probation terms consecutive to prison sentences, limited in length only by general law.


author: McDONALD, Justice.

text:
    STATE of Florida, Petitioner, v. Ronald HOGAN, Respondent.
    No. 63515.
    Supreme Court of Florida.
    June 7, 1984.
    Rehearing Denied July 19, 1984.
    Jim Smith, Atty. Gen. and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Channing E. Brackey, Fort Lauderdale, for respondent.
   McDONALD, Justice.

We have for review Hogan v. State, 427 So.2d 202 (Fla. 4th DCA 1983), because of conflict with Rusaw v. State, 429 So.2d 1378 (Fla. 2d DCA 1983). We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution.

A two-count indictment charged Hogan with kidnapping and with violating subsection 794.011(2), Florida Statutes (1981), sexual battery of a person under eleven years of age by a person over eighteen years of age. The legislature has provided that such a crime is a capital offense, the penalty for which is death or a life sentence without eligibility for parole for twenty-five years. The jury convicted Hogan of kidnapping and attempted sexual battery. Subsection 777.04(4)(a), Florida Statutes (1981), states that a person convicted of an attempted capital offense shall be guilty of a first-degree felony. The trial court sentenced Hogan to thirty years’ imprisonment pursuant to subsection 775.082(3)(b), Florida Statutes (1981). On appeal the district court ordered resentencing because,

[sjince sexual battery is a life felony, rather than a capital felony, the crime of attempted sexual battery carries a maximum sentence of fifteen years. Sections 777.04(4)(b) and 775.082(3)(c), Florida Statutes (1981).

427 So.2d at 203. In reaching that conclusion the district court reasoned that, because this Court in Buford v. State, 403 So.2d 943 (Fla. 1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982), ruled that death cannot be imposed for sexual battery of a child, the instant crime is no longer a capital crime.

In Rusaw v. State, 451 So.2d 469 (Fla.1984), we held that the penalty for the crime proscribed by subsection 794.011(2) is still a life sentence without eligibility for parole for twenty-five years, notwithstanding the inapplicability of the death penalty to that crime. The degree of the crime is what the legislature says it is, and, just because a portion of a crime designated “capital” cannot be carried out, the degree is not lessened, at least not for the purposes of setting penalties for “attempt” crimes. The trial court, therefore, properly sentenced Hogan to thirty years’ imprisonment. We quash that portion of Hogan to the contrary and direct the district court to affirm Hogan’s original sentence.

Although we recognize that in doing so we present a chameleon-like appearance, we approve the district court’s holding that Hogan could be tried by a jury of six rather than twelve persons. Section 910.-13, Florida Statutes (1981), and Rule of Criminal Procedure 3.170 state that twelve persons shall constitute a jury to try all capital cases and that six persons shall constitute a jury to try all other cases. For the purposes of defining “capital” under that statute and rule we hold that a capital case is one where death is a possible penalty. This holding is consistent with Donaldson v. Sack, 265 So.2d 499 (Fla.1972), in which we wrestled with the correct procedure and forum to be employed in prosecuting first-degree murder cases after the death penalty had been invalidated by the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). We held that Furman abolished capital offenses as previously imposed in Florida because the traditional definition of a capital case is one where the punishment is death.

Sexual battery of a child, therefore, while still defined as a “capital” crime by the legislature, is not capital in the sense that a defendant might be put to death. Because the death penalty is no longer possible for crimes charged under subsection 794.011(2), a twelve-person jury is not required when a person is tried under that statute. Our construction of the statute and rule is in accordance with what we believe the legislature intended when it passed the statute, as did we when we enunciated the rule.

We approve the part of Hogan that validates the six-person jury, quash the part that reduces Hogan’s sentence, and remand for affirmation of his original sentence. It is so ordered.

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

       The existence of § 775.082(2), Fla.Stat. (1981), bolsters this conclusion.
      (2) In the event the death penalty in a capital felony is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court, the court having jurisdiction over a person previously sentenced to death for a capital felony shall cause such person to be brought before the court, and the court shall sentence such person to life imprisonment as provided in subsection (1).


text:
    Columbus BRIDGES, Appellant/Cross-Appellee, v. Robert Lee KITCHEN, et al., Appellees/Cross-Appellants. Robert Lee KITCHEN, et al., Appellants, v. Columbus BRIDGES, Appellee.
    Nos. 83-365, 83-1741.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 1983.
    Rehearing Denied April 5, 1984.
   The attorney for cross-appellants in appeal No. 83-365 previously filed a withdrawal of notice of appeal in 83-365 and this court thereupon dismissed the cross-appeal in 83-365. Cross-appellants have now filed a motion to correct order in which they state they inadvertently filed the motion to withdraw in 83-365 instead of in their interlocutory appeal which is Case No. 83-1741. Therefore, the order of this court of September 22, 1983 dismissing the cross-appeal is hereby vacated and the interlocutory appeal, Case No. 83-1741, is hereby dismissed.

It appearing that the order of which the cross-appellants are seeking review in Case No. 83-365 was entered after the final judgment in that case; therefore, a cross-appeal is not the proper vehicle to review such order. Consequently, the notice of cross-appeal is treated as a notice of interlocutory appeal of the injunction order rendered March 8, 1983. The attorney for cross-appellants shall file a copy of the notice of cross-appeal with the clerk’s office of the trial court on or before ten days to be treated by the clerk as a notice of appeal of the March 8 order filed as of the day the notice of cross-appeal was originally filed (March 29,1983). Upon payment of the filing fee, the clerk shall process the appeal and forward it to this court, which will then consolidate the new appeal with Case No. 83-365. Cross-appellants’ brief, already filed in 83-365, will be treated as their appellants’ brief in the new appeal, and the attorney for appellants in 83-365 shall have fifteen days after consolidation of the new appeal to file an answer brief.


author: WALDEN, Judge.

text:
    Richard MAGERS and Dorothy Magers, Appellants, v. WALKER’S CAY AIR TERMINAL, INC., f/k/a Hansa Jet Corp., James Hill and South Florida Aircraft Sales and Leasing, Inc., Appellees. James HILL and South Florida Aircraft Sales and Leasing, Inc., Cross-Appellants, v. Richard MAGERS and Dorothy Magers, and Walker’s Cay Air Terminal, Inc., f/k/a Hansa Jet Corp., Cross-Appellees.
    No. 82-2579.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 1983.
    Rehearing Denied June 8, 1984.

      William R. Boeringer and William Milliken of Hayden & Milliken, P.A., Miami, for appellants/cross-appellees-Richard Magers and Dorothy Magers.
    Gilbert E. Theissen of Walsh, Theissen & Boyd, P.A., Fort Lauderdale, for appel-lees/cross-appellants-Hill and South Fla. Aircraft Sales and Leasing, Inc.
    Jane Kreusler-Walsh and Larry Klein, West Palm Beach, and Pyszka & Kessler, Fort Lauderdale, for appellee-Walker’s Cay Air Terminal, Inc.
   WALDEN, Judge.

Appellants sued Walker’s Cay Air Terminal, Inc., James Hill, and .South Florida Aircraft Sales and Leasing, Inc., for damages. The trial court subsequently granted a motion to dismiss for lack of prosecution filed by Walker’s Cay. This ruling was appealed. Upon review we are of the opinion that the trial court ruled correctly and that appellants failed to demonstrate any abuse of discretion by the court. Thus, we affirm on this issue.

Appellees Hill and South Florida Aircraft Sales and Leasing, Inc., have filed a cross appeal, charging that it was error for the trial court to dismiss the action as to the moving party, Walker’s Cay, but not as to them. Their contention is that Florida Rule of Civil Procedure 1.420(e), under which the motion was brought, provides for the dismissal of an entire “action,” as opposed to only the moving party, where a failure to prosecute has been demonstrated. We agree. Therefore, we hold that it was error not to dismiss the Magers’ action against James Hill and South Florida Aircraft Sales and Leasing, Inc., for lack of prosecution. Phillips Petroleum Co. v. Heimer, 339 So.2d 284 (Fla. 3d DCA 1976), cert. denied, 348 So.2d 948 (Fla.1977); Bowman v. Peele, 413 So.2d 90 (Fla. 2d DCA 1982); Smith v. St. George Island Gulf Beaches, Inc., 343 So.2d 847 (Fla. 1st DCA 1976).

We affirm the dismissal of the instant action as to Walker’s Cay Air Terminal, Inc. We reverse the trial court’s denial of dismissal as to James Hill and South Florida Aircraft Sales and Leasing, Inc., and remand with instructions that those two parties be dismissed.

GLICKSTEIN and HURLEY, JJ., concur.


author: PER CURIAM. PER CURIAM.

text:
    ORANGE COUNTY, Florida, Appellant, v. DEBRA, INC., Appellee.
    No. AS-46.
    District Court of Appeal of Florida, First District.
    Dec. 30, 1983.
    Rehearing Denied April 6, 1984.

      Thomas J. Wilkes, Jr. of Gray, Harris & Robinson, Orlando, for appellant.
    Linda Shelley, Tallahassee, Miranda Franks of Maquire, Yoorhis & Wells, P.A., Orlando, Robert D. Guthrie, Asst. City Atty., Orlando, and Jolen Rawls, Tallahassee, for appellee.
   PER CURIAM.

Orange County, Florida, appeals the ac-knowledgement by the Florida Land and Water Adjudicatory Commission (FLWAC) of the withdrawal by Debra, Inc., prior to a ruling thereon, of its petition for a rule establishing a Community Development District (CDD), which was filed pursuant to Chapter 190, Florida Statutes (1981).

A hearing officer presided over the public hearing prescribed by § 190.005(l)(b) in August and September, 1982. The FLWAC staff, based on that report and on the factors outlined in Chapter 190, recommended that further public hearings be held before action was taken on the petition. Before the agency could act on this recommendation, Debra, Inc. withdrew its petition on March 8, 1983. It was recommended to the FLWAC by its staff that the withdrawal be acknowledged, which was done at the commission meeting on March 15, 1983. The FLWAC also denied at that time Orange County’s request that it issue a final order denying the petition.

Orange County argues that it was error to allow Debra, Inc. to withdraw its petition, and that the FLWAC had a duty to issue a final order on the petition. Debra, Inc. moves to dismiss, alleging that the acknowledgement by the agency is not “final agency action” pursuant to § 120.68, Fla.Stat. (1981).

We deny the motion to dismiss and hold that the agency’s acknowledgement of the withdrawal of the petition constituted appealable “final agency action” pursuant to § 120.68. We affirm the action of the FLWAC in allowing Debra, Inc. to withdraw its petition and hold that it properly declined to issue an order denying Debra, Inc.’s petition, as the withdrawal of the petition divested the agency of further jurisdiction to proceed.

Section 120.54(5), Fla.Stat. (1981), provides that any person regulated by an agency may petition the agency to adopt a rule. The petition must contain the proposed rule and the requested action. The agency then has thirty days to initiate rule-making, or deny the petition, setting forth its reasons for the denial in writing. Under this section, the petition becomes immaterial if the agency decides to initiate rule-making. The desired rule may have significance to the public or the agency regardless of the personal desires of the petitioner. More importantly, the agency has the jurisdiction to proceed without the petition, since it has the authority under § 120.54 to begin rulemaking on its own initiative.

The FLWAC cannot sua sponte initiate Chapter 190 rulemaking. Section 190.005(1) states that the sole means for obtaining a rule establishing a CDD is to file a petition with the FLWAC and only the filing of a qualifying petition gives the agency jurisdiction to proceed. It is well-established that an agency has no jurisdiction to proceed beyond that granted it by statute; it has no inherent rulemaking authority, § 120.54(14), Fla.Stat. (1981). See Gardinier, Inc. v. Florida Department of Pollution Control, 300 So.2d 75 (Fla. 1st DCA 1974); Fiat Motors of North America, Inc. v. Calvin, 356 So.2d 908, 909 (Fla. 1st DCA 1978). Therefore, withdrawal of a Chapter 190 petition short of ruling thereon would deprive the FLWAC of jurisdiction to proceed to a final decision on the petition.

Furthermore, a rule under Chapter 190 is peculiarly to the benefit of the individual petitioner, although others are undeniably affected by the adoption or not of a CDD rule. A petitioner is required by statute to own or control all of the land which is the subject of the CDD petition. § 190.-005(l)(a)(2), Fla.Stat. (1981). If prior to receiving a ruling on his petition he no longer desires that his land be designated a CDD, it would be meaningless for the FLWAC to proceed to a conclusion regarding that use without his participation. If, for example, a CDD rule was adopted without the consent of the petitioner (as evidenced by the continuing presence of the petition before the agency) the petitioner would be constrained to engage in proceedings under § 190.046 to dissolve the CDD. This is an unnecessary waste of time and effort which can be avoided if a petitioner is simply allowed to withdraw his petition prior to a ruling thereon if he no longer wants to seek a Chapter 190 rule.

We deny the motion to dismiss filed by Debra, Inc. and affirm the action taken by the FLWAC. It is unnecessary for the Court to rule on the pending motions for extension of time.

MILLS, BOOTH and SHIVERS, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

Orange County, Florida files a motion for rehearing directed to this court’s opinion, filed December 30, 1983, which affirmed the action of the Florida Land and Water Adjudicatory Commission (FLWAC) in allowing Debra, Inc. to withdraw its Chapter 190 petition for a Community Development District (CDD) before rendering a decision thereon. The rehearing motion alleges error on the part of the court in failing to recognize that the proceeding below was held pursuant to the requirements of § 120.57, Florida Statutes (1981). Appellant further alleges that this error resulted in a misapprehension of the point of its appeal, i.e. that the FLWAC erred in failing to comply with § 120.59, Florida Statutes (1981) which requires an agency to render a final order in such proceedings within ninety (90) days after submission of a recommended order. For the reasons hereinafter set forth, we do not agree.

Section 190.005(1), Florida Statutes (1981) provides: “The exclusive and uniform method for the establishment of a CDD ... shall be pursuant to rule adopted under Chapter 120.” (emphasis supplied). It is true that the statute does not specify which part of Chapter 120 shall govern, the informal procedures set forth in § 120.54 or the more formal procedures of § 120.57. However, § 120.54(16) states that “[r]ule-making proceedings shall be governed solely by the provisions of this section .... ” (emphasis supplied).

Appellant argues that subsection (16) goes on to provide a procedure by which a party can “draw out” a § 120.54 proceeding to the more formal § 120.57 proceeding if the party “timely asserts that his substantial interests will be affected in the proceeding and affirmatively demonstrates to the agency that the proceeding does not provide adequate opportunity to protect those interests.” Appellant has provided no evidence of such a “draw out” in this case. In fact, appellant filed a “motion for involuntary dismissal” below at the midpoint of the proceedings, the basis of which was Debra, Inc.’s alleged failure to file an adequate economic impact statement pursuant to the requirements of § 120.54(2)(a). After the conclusion of the proceedings, appellant filed with the hearing officer, not a proposed recommended order, pursuant to § 120.57(l)(b)(4), but a proposed “Report of Hearing Officer.” Therefore, it does not appear that even appellant viewed the proceedings as having been “drawn out” to a § 120.57 proceeding pursuant to § 120.-54(16).

In further support of its contention that § 120.57 controlled the proceedings below, appellant argues that its intervention was allowed by the hearing officer pursuant to administrative rule applicable to formal administrative proceedings under § 120.57. However, the order of the hearing officer granting the motion to intervene reveals that appellant’s intervention was allowed pursuant to § 190.005(l)(b) (all affected units of local government shall be given an opportunity to appear).

In conclusion, because § 120.54 governs the hearing prescribed in § 190.005(l)(b), appellant’s argument that the FLWAC erred in failing to comply with § 120.59 is inapposite, since that statute is applicable only to proceedings held pursuant to § 120.57. The appellant has therefore failed to demonstrate error in the court’s previous opinion and the motion for rehearing is denied.

MILLS, BOOTH and SHIVERS, JJ., concur.


text:
    K.J.C., a child, Appellant, v. STATE of Florida, Appellee.
    No. 83-847.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1984.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Depasquale v. State, 438 So.2d 159 (Fla. 2d DCA 1983); Irving v. State, 337 So.2d 1014 (Fla. 2d DCA 1976).

OTT, C.J., and BOARDMAN and LE-HAN, JJ., concur.


text:
    In re ESTATE OF Alfred G. KEERL, Deceased.
    No. 83-1091.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 1984.
    Raymond E. Miller, Venice, for appellant Norman Robinett.
    Michael R. Karp of Wood, Whitesell, Karp, Wellbaum, Miller & Seitl, P.A., Sarasota, for appellee First National Bank of Venice.
   PER CURIAM.

Affirmed. The trial court did not abuse its discretion in granting the personal representative an extension to file an objection to the claim, “even though the statutory time limit [had] expired prior to the filing of the motion for extension.” In re Estate of Sale, 227 So.2d 199, 201 (Fla.1969); see also In re Estate of Oxford, 372 So.2d 1129, 1132 (Fla.2d DCA 1979).

GRIMES, A.C.J., and RYDER and DAN-AHY, JJ., concur.


author: ZEHMER, Judge. PER CURIAM.

text:
    DEPARTMENT OF PROFESSIONAL REGULATION, Electrical Contractors’ Licensing Board, Petitioners, v. Honorable Sharyn L. SMITH, etc., et al., Respondents.
    No. AU-248.
    District Court of Appeal of Florida, First District.
    Jan. 26, 1984.
    As Clarified March 21, 1984.

      Susan Tully, Dept, of Legal Affairs, and W. Douglass Moody, Jr., Dept, of Professional Regulation, Tallahassee, for petitioners.
    Meah Rothman Tell, Miami, for respondents.
   ZEHMER, Judge.

Petitioners, Florida Department of Professional Regulation and Electrical Contractors’ Licensing Board, appeal from a hearing officer’s order granting to respondents Dova Cauthen and John Eugene Harden the right to discovery of the January 1983 state examination for licensure as an electrical contractor. Petitioners attempt to invoke our jurisdiction by utilizing a “shotgun” approach:

The jurisdiction of this Honorable Court is invoked upon the authority of Rule 9.030(b)(2) and/or Rule 9.030(b)(1)(B) and/or Rule 9.030(b)(1)(C) and/or Rule 9.030(b)(3), and Rule 9.100, all of the Florida Rules of Appellate Procedure; and Article V, Section 4, Constitution of the State of Florida, as well as decisional and adjective law: the instant petition commences a proceeding to seek review of a non-final order in an administrative proceeding which deals with or implicates the discovery provisions of the Florida Rules of Civil Procedure.

Unfortunately, all of petitioners’ buckshot missed the target.

We reject petitioners’ reliance upon rule 9.030(b)(1)(B) because a hearing officer is clearly not a “circuit court.” Next, petitioners erroneously rely upon rule 9.030(b)(1)(C) and rule 9.100 to invoke this court’s jurisdiction to review nonfinal administrative action. Neither these two rules nor section 120.68(1), Florida Statutes (1981); empowers this court to entertain petitions for review of nonfinal orders of hearing officers. Department of Professional Regulation v. LeBaron, D.D.S., 443 So.2d 225 (Fla. 1st DCA 1983); Beckum, O.D. v. State of Florida, Department of Health and Rehabilitative Services, 443 So.2d 227 (Fla. 1st DCA 1983).

Finally, petitioners attempt to invoke our jurisdiction to issue writs of cer-tiorari and all writs necessary to the complete exercise of our jurisdiction. Rule 9.030(b)(2)(A) provides that we may issue writs of certiorari to review nonfinal orders of “lower tribunals.” According to rule 9.020, the term “lower tribunal” includes “the court, agency, officer, board, commission or body whose order is to be reviewed.” Although it could be argued that a hearing officer is a “lower tribunal” within this definition, we need not reach this issue since it is axiomatic that a writ of certiorari will not issue where the petitioner has a full, complete, and adequate remedy at law. 3 Fla.Jur.2d, Appellate Review, § 467. Petitioners have an adequate remedy to redress the alleged error in the hearing officer’s discovery order. Section 120.-58(2), Florida Statutes (1982), permits the Department to review the discovery order and, if error is determined, enter an order prohibiting the ordered discovery to respondents. If unsatisfied with the Department’s order, respondents may attempt to invoke this court’s jurisdiction to review nonfinal administrative action. LeBaron and Beckum, supra.

Petitioners’ petition to review the hearing officer’s order is DISMISSED for lack of jurisdiction. The various motions filed in this case are moot. The petition for certiorari is DENIED.

BOOTH and THOMPSON, JJ., concur.

ON MOTION FOR CLARIFICATION

PER CURIAM.

Petitioners have filed a motion seeking clarification of our opinion issued January 26, 1984, holding that petitioners, pursuant to section 120.58(2), Florida Statutes, have an adequate remedy at law to obtain relief from an allegedly invalid discovery order issued by a hearing officer. We grant the motion and hereby clarify our opinion to state that pursuant to section 455.213(3), Florida Statutes, the Electrical Contractors’ Licensing Board is the agency having jurisdiction of the dispute and that the Board, having objected to the proposed discovery order, shall review and set aside or modify such order should it determine that there are sufficient grounds for doing so. Otherwise, the Board shall approve the discovery order, whereupon it shall be subject to enforcement pursuant to chapter 120. Under the statutory scheme, the Board is acting for and on behalf of the Department of Professional Regulation. Obviously the Department will be bound by any final order entered by the Board.

BOOTH, THOMPSON and ZEHMER, JJ., concur.


text:
    Susan S. BAIRD, Appellant, v. William D. BAIRD, Appellee.
    No. 83-1213.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1984.
    Rehearing Denied March 20, 1984.
    Carolyn M. Fields of de la Parte & Gilbert, Tampa, for appellant.
    Peter N. Meros of Meros & Smith, St. Petersburg, for appellee.
   PER CURIAM.

Affirmed. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), and Conner v. Conner, 439 So.2d 887 (Fla.1983).

OTT, C.J., and BOARDMAN and LE-HAN, JJ., concur.