author: PER CURIAM. McDONALD, Justice,

text:
    James Curtis McCRAE, Petitioner, v. Louie L. WAINWRIGHT, Respondent.
    No. 63796.
    Supreme Court of Florida.
    Sept. 15, 1983.
    Rehearing Denied Nov. 17, 1983.

      Robert H. Dillinger of Akerson, Swisher, Dillinger & Brett, St. Petersburg, for petitioner.
    Jim Smith, Atty. Gen., George R. Geor-gieff, Asst. Deputy Atty. Gen., Tallahassee, and Peggy Quince, Asst. Atty. Gen., Tampa, for respondent.
   PER CURIAM.

This cause is before the Court on petition for a writ of habeas corpus. The petitioner is a state prisoner under sentence of death. On June 13, 1983, in case no. 63,797, we stayed execution of the sentence for reasons unrelated to this habeas corpus proceeding.

Petitioner’s conviction of first-degree murder and sentence of death were previously the subject of an appeal to this Court and were affirmed. McCrae v. State, 395 So.2d 1145 (Fla.1981). The United States Supreme Court denied a petition for further review by writ of certiorari. McCray v. Florida, 454 U.S. 1041, 102 S.Ct. 583, 90 L.Ed.2d 486 (1981). Subsequently, petitioner sought a writ of habeas corpus from this Court and we denied relief. McCrae v. Wainwright, 422 So.2d 824 (Fla.1982).

In the present petition the prisoner argues: (1) that he was denied the effective assistance of counsel on appeal by the failure of his appeal counsel to raise as a challenge to the validity of the conviction and sentence the issue of a conflict of interest, within the public defender’s office, between petitioner and a witness who testified for the state at the trial; (2) that he was denied due process of law at trial and effective assistance of counsel on appeal by the giving at trial, and the failure to challenge on appeal, of “incorrect and misleading” jury instructions; and (3) that he was denied due process of law at trial and effective assistance of counsel on appeal by the failure of the trial court to instruct the jury, and the failure of appellate counsel to raise the failure to instruct, that an accused is presumed innocent of the underlying felony in a felony murder case. Finding petitioner’s arguments to be without merit, we deny the petition for a writ of habeas corpus.

Appellant’s first argument as set out above is that the lawyer who argued his appeal unreasonably failed to raise a challenge on the ground of dual representation of both appellant and a principal state witness by the same public defender’s office. The purpose of the ancient and high prerogative writ of habeas corpus is to inquire into the legality of a prisoner’s present detention. E.g., Frizzell v. State, 238 So.2d 67 (Fla.1970); Sneed v. Mayo, 69 So.2d 653 (Fla.1954). Habeas corpus should not be used as a vehicle for presenting issues which should have been raised at trial and on appeal. Hargrave v. Wainwright, 388 So.2d 1021 (Fla.1980); State ex rel. Copeland v. Mayo, 87 So.2d 501 (Fla.1956). Allegations of ineffective appellate counsel therefore should not be allowed to serve as a means of circumventing the rule that habeas corpus proceedings do not provide a second or substitute appeal. We need not and will not treat the merits of the dual representation claim.

The asserted violation of principles against conflict of interest in legal representation does not appear to be so important to the fairness of the trial that if appellate counsel had raised it, the argument would clearly have compelled reversal by the appellate court. Indeed, it is not even clear that the appellate court would have been bound to consider the issue since it was not raised by some kind of motion or objection at trial. See Castor v. State, 365 So.2d 701 (Fla.1978). Because of limitations of time, space, and human energy, a lawyer briefing an appeal must choose from all the conceivable arguments those arguments most likely to bring about a favorable outcome. The decision not to argue the issue of dual representation could have been a tactical choice based on the need to concentrate time and effort on those arguments which counsel regarded as most likely to achieve success. We therefore find that petitioner has not identified a “specific omission or overt act” constituting “a substantial and serious deficiency measurably below” the standard of performance expected of competent counsel. Knight v. State, 394 So.2d 997, 1001 (Fla.1981).

Petitioner’s second argument as set out above is that he was denied (a) due process of law at trial, and (b) effective assistance of counsel on appeal, by reason of, respectively, improper jury instructions and the failure to challenge them on appeal. The question of denial of due process by improper jury instructions at trial is an issue that could have been raised at trial and on appeal and therefore should not be considered on habeas corpus unless the error was so substantial as to have rendered the trial fundamentally unfair. See Hargrave v. Wainwright; State ex rel. Copeland v. Mayo. Oí course, since there was no objection to the instruction given at trial and no request for a different instruction, the issue could not have been raised on appeal in the absence of fundamental unfairness. A prisoner who seeks relief in a collateral proceeding based on a jury instruction not challenged by objection at trial has the burden of proving that the instruction given affected the trial in such a way as to render the trial fundamentally unfair. United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). As will be seen from the discussion that follows, petitioner has not carried this burden.

Since there was no objection to the instruction at trial, appellate counsel could only have obtained review of the issue on appeal by convincing the appellate court that the instruction caused fundamental unfairness. If there was no chance of convincingly arguing fundamental unfairness, then appellate counsel’s not raising the issue should not be considered a serious and substantial deficiency.

Petitioner argues that the instruction on felony murder rendered the trial unfair because it might have seriously confused the jury on an important matter the jury was called upon to decide. Specifically, he argues that the failure to fully define the underlying felony of rape, together with the inclusion of references to the out-dated, unconstitutional offense of “the abominable and detestable crime against nature,” confused the jury on the elements of the underlying felony. Since it was never made clear by the testimony whether the perpetrator had sexual intercourse with the victim before or after the victim’s death, petitioner says, it was not clear to the jury whether the offense of rape was ever committed. At the same time, petitioner says, inclusion of reference to “the abominable and detestable crime against nature” in the definition of felony murder, which offense was stricken from the statutes for vagueness, Franklin v. State, 257 So.2d 21 (Fla. 1971), may have led the jury to believe that this latter offense could be proven by evidence of sexual violation of a dead body. Petitioner’s argument is without merit.

We held in the previous habeas corpus proceeding regarding this same prisoner that although a detailed instruction on the elements of rape was not included in the jury instructions proper, the essential elements of the offense of rape for felony murder purposes were set before the jury by means of the reading of count two of the indictment. McCrae v. Wainwright, 422 So.2d 824 (Fla.1982). The pertinent definition of the offense of felony murder in the first degree is “the killing of a human being ... when committed by a person engaged in the perpetration of, or in the attempt to perpetrate” any of the enumerated possible underlying felonies, including “rape.” § 782.04(l)(a), Fla.Stat. (1973). Therefore, it was not necessary, in order to find petitioner guilty of felony murder, for the jury to find that petitioner committed the crime of rape, if it could have concluded that he attempted to commit the crime of rape.

From the fact that the attacker did in fact have sexual union with the body of the victim, either before or after her death, the jury could have inferred that rape was what he intended to do. The overt act of sexual violation, whether the victim was alive or dead, together with the intent in-ferable from the circumstances, were sufficient to prove the crime of attempted rape if in fact the jury believed that the victim was dead. Since it was later unclear from the expert testimony whether the victim was alive or dead at the time, the jury could have concluded that appellant believed she was alive or at least that he originally set out to have forced sexual contact with her while she lived. The fact that a rape may not have occurred because the intended victim was dead at the time of the actual penetration would not have changed the attacker’s intent, which was properly infer-able from the evidence. We therefore conclude that there was no possibility of confusion caused by the reference to “the abominable and detestable crime against nature” in the felony murder instruction. Petitioner’s suggestion that the jury might have ascribed to those words a definition which they have never been given by the law is based upon speculation of the most fanciful kind. Since the instruction did not render the trial fundamentally unfair and was not objected to, the issue would not have been cognizable on appeal. Therefore, the failure of appellate counsel to challenge it on appeal was not a serious and substantial deficiency.

Petitioner’s final argument is that he was denied due process of law at trial by the failure of the trial court to instruct the jury that the accused is presumed innocent of the underlying felony in a felony murder case and was denied effective assistance of counsel on appeal by the failure to raise the issue on appeal. Looking to authorities already discussed in this opinion, we conclude that the absence of an instruction not requested at trial can only provide a basis for habeas corpus relief if the omission rendered the trial fundamentally unfair. Petitioner has not shown that the relied-upon omission caused fundamental unfairness and therefore his due process claim must fail. For the same reason his ineffective appellate counsel claim must also be rejected. Since there was no request at trial, the issue would not have been cognizable on appeal in the absence of fundamental unfairness. Since there was no fundamental unfairness, appellate counsel was not required to perform the futile gesture of arguing the question, but could have reasonably decided to concentrate his efforts on other matters offering greater hope of benefit to his client. There was no deficiency in appellate counsel’s performance in connection with this matter.

As explained in the foregoing opinion, we find all of petitioner’s claims to be without merit. The petition for writ of habeas corpus is therefore denied.

It is so ordered.

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

McDONALD, J., concurs specially with an opinion, in which OVERTON, J., concurs.

SHAW, J., dissents.

McDONALD, Justice,

specially concurring.

In McCrae v. Wainwright, 422 So.2d 824 (Fla.1982) I dissented to the denial of a previously filed petition for habeas corpus because I felt that fundamental error was committed by the trial judge when he failed to define the underlying felony of sexual battery, and McCrae’s appellate counsel was derelict in not raising that issue. The majority of the Court ruled otherwise. While I still adhere to that belief, I see nothing new in the present petition sufficient to support relief. I do not embrace the language of the majority opinion filed herein, but concur in the denial of relief predicated on this new petition.

OVERTON, J., concurs.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Joseph Green BROWN, Appellant/Petitioner, v. STATE of Florida, Appellee/Respondent.
    Nos. 64348, 64357.
    Supreme Court of Florida.
    Oct. 12, 1983.

      Richard Blumenthal of Cummings and Lockwood, Stamford, Connecticut, for appellant/petitioner.
    Jim Smith, Atty. Gen., and Theda James Davis and Davis G. Anderson, Jr., Asst. Attys. Gen., Tampa, for appellee/respon-dent.
   PER CURIAM.

Joseph Green Brown was convicted of first-degree murder and sentenced to death in 1974. We affirmed his conviction and sentence. Brown v. State, 381 So.2d 690 (Fla.1980), cert. denied, 449 U.S. 1118, 101 S.Ct. 931, 66 L.Ed.2d 847 (1981). Subsequently we denied his petition for writ of habeas corpus. Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981). Brown filed a Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief, which the trial court denied following an evidentiary hearing limited in scope to his claim of ineffective assistance of counsel. Brown now appeals the denial of his motion for post-conviction relief. He moves for a stay of execution and petitions for a writ of error coram nobis.

As grounds for the writ, Brown contends that facts have been brought to light which were unknown at the time of trial and which could not have been known by counsel through the exercise of due diligence. Brown has secured a videotape deposition of the state’s key witness against him, now recanting his trial testimony implicating Brown in the murder for which he was convicted and sentenced. The witness, Ronald Floyd, states that his motivation for testifying against Brown was Brown’s willingness to testify against Floyd in a separate case, along with alleged threats by the Tampa Police Department and State Attorney’s Office that he would be prosecuted for the crime with which Brown was charged unless he testified against Brown. Floyd states that in return for his testimony he was promised that he would not be prosecuted for the murder and that he would receive favorable consideration in a separate case in which he was charged. Brown contends that this new evidence is of such a vital nature that, had it been known to the trial court, it conclusively would have prevented entry of the judgment. We would be more amenable to Brown’s position had we not previously remanded to the trial court for an evidentiary hearing on the issue of the truthfulness of Floyd’s statements in a previous affidavit recanting his trial testimony and vindicating Brown.

The first time Floyd recanted, Brown’s counsel secured a post-trial affidavit from him stating that his trial testimony was false and that it was given in return for a prosecutorial offer of favorable consideration. This Court granted Brown’s motion to remand for an evidentiary hearing. At that hearing, Floyd reaffirmed his trial testimony as to Brown’s involvement in the murder. The issue of whether Floyd’s retraction was caused by fear of prosecution for perjury, which Brown now raises, was discoverable by defense counsel at that hearing. Counsel failed at the time of the hearing to object to admonitions from the court regarding perjury and did not bring up the issue on appeal. The perjury issue therefore was known or could have been known to Brown’s counsel and is not now cognizable under application for writ of error coram nobis. We have reviewed the transcript of Floyd’s recent recantation of October 4, 1983. We find nothing new which has not or could not have been considered and ruled upon by the trial court during the first evidentiary hearing. As we stated in Hallman v. State, 371 So.2d 482, 485 (Fla.1979),

[t]he facts upon which the petition [for writ of error coram nobis] is based must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence. Kinsey v. State, 155 Fla. 159, 19 So.2d 706 (1944).

The application for writ of error coram nobis is denied.

At the hearing on Brown’s 3.850 motion, the issue of ineffective assistance of counsel at the guilt and sentencing phases of the trial was examined in depth. We have reviewed the record and find that the trial court’s finding that counsel was not ineffective is supported by competent substantial evidence.

The focus of the hearing regarding the guilt phase of the trial was upon whether counsel was ineffective because he did not obtain and make use of statements of Floyd which contained information which would have cast doubt on Floyd’s credibility during cross-examination. In Brown v. State we remanded to the trial court for an evi-dentiary hearing on the issue of whether statements of Floyd were in the possession of the state and not produced for the defense. The trial court determined that counsel had access to all of the statements to which he was entitled and we affirmed. 381 So.2d at 693. Applying the standard of Knight v. State, 394 So.2d 997 (Fla.1981), we do not find that not using the statements to impeach Floyd amounted to an omission which was a “substantial and serious deficiency measurably below that of competent counsel.” Id. at 1001. Even if it did, we do not find that the omission was likely to affect the outcome of the proceedings. The record reflects that counsel used other means of impeaching Floyd. The remaining arguments relating to counsel’s ineffectiveness at the guilt phase of trial either involve trial tactics or fail to demonstrate any substantial and serious deficiency measurably below that of competent counsel under Knight.

The other issues raised concerning alleged trial errors either were or should have been raised and disposed of on direct appeal and are not proper for consideration via a post-conviction motion. Foster v. State, 400 So.2d 1, 4 (Fla.1981).

The principal issue at the evidentiary hearing regarding the sentencing phase of the trial was whether trial counsel was ineffective in not introducing evidence in mitigation. The choice by counsel to present or not present evidence in mitigation is a tactical decision properly within counsel’s discretion. See, e.g., Armstrong v. State, 429 So.2d 287, 290-91 (Fla.1983); Straight v. Wainwright, 422 So.2d 827, 832 (Fla.1982), cert. denied sub nom., McCrae v. Florida, -U.S. -, 103 S.Ct. 2112, 77 L.Ed. 315 (1983).

Counsel indicated during the hearing on the 3.850 motion that, given his time and resource constraints, he felt it necessary to devote his energies to preparation for the guilt or innocence phase of the trial. He also testified that in his opinion the presentation of mitigation evidence was contradictory to the alibi defense. It is apparent that “[d]efense counsel viewed evidence of mitigating circumstances as fundamentally damaging to the integrity of his client’s case.” Straight v. Wainwright, 422 So.2d 827, 832 (Fla.1982). Further, counsel testified that Brown was of no assistance whatsoever in pursuing mitigating evidence either prior to trial or during the weekend between the guilt and penalty phases. We find that under the totality of the circumstances at the time of trial, counsel was reasonably effective. See Meeks v. State, 382 So.2d 673 (Fla.1980), cert. denied, — U.S. —, 103 S.Ct. 799, 74 L.Ed.2d 1002 (1983).

The remaining arguments relating to counsel’s ineffectiveness at sentencing are without merit. All of the alleged omissions fall under one or another prong of the Knight standard.

The other issues raised relating to alleged sentencing errors either were or should have been raised and disposed of on direct appeal and are not proper for consideration via a collateral motion. Washington v. State, 397 So.2d 285 (Fla.1981); Hargrave v. State, 396 So.2d 1127 (Fla.1981); and Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980).

The trial court’s denial of post-conviction relief is affirmed. The application for stay is denied. No motion for rehearing will be entertained.

It is so ordered.

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


author: BOYD, Justice.

text:
    Charles Dwight MESSER, Jr., Appellant, v. STATE of Florida, Appellee. Charles Dwight MESSER, Jr., Petitioner, v. Louie L. WAINWRIGHT, etc., et al., Respondents.
    Nos. 64346, 64347.
    Supreme Court of Florida.
    Oct. 12, 1983.

      David Ackerman, Pensacola, and Louis Dugas, Orange, Tex., for appellant/petitioner.
    Jim Smith, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee/respondents.
   BOYD, Justice.

These cases are before the Court on appeal of the denial of a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 (case no. 64,346) and upon a petition for writ of habeas corpus (case no. 64,347). Appellant-petitioner Charles Dwight Messer, Jr., is a state prisoner under sentence of death. In conjunction with the appeal and petition filed herein, Messer has moved for a stay of his scheduled execution.

Messer was convicted of the robbery and intentional murder of Henry Fowler. The crimes were committed in 1973. The trial court imposed a sentence of death. On appeal, this Court affirmed the convictions of murder and robbery but, finding error in the sentencing process, vacated the sentence of death and ordered a new sentencing proceeding with a new jury. Messer v. State, 330 So.2d 137 (Fla.1976). Messer was again sentenced to death, and the appellate jurisdiction of this Court was again invoked for review of the sentence. During the pendency of the appeal, the Court remanded for a hearing on a question of procedural due process at the sentencing proceeding. Principles arising from Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), were the basis of the Court’s concern. Messer v. State, 384 So.2d 644, 645 (Fla.1980) (on rehearing). With receipt of the trial court’s findings on the Gardner issue, the appellate jurisdiction of this Court resumed. Thereafter the Court affirmed Messer’s sentence of death. Messer v. State, 403 So.2d 341 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2259, 72 L.Ed.2d 863 (1982).

Rule 3.850 Appeal

Appellant contends that the trial court erred in denying his motion to vacate his judgment and sentence because he established that he was denied the right of effective assistance of legal counsel at his trial. In Knight v. State, 394 So.2d 997 (Fla.1981), we announced the test for judging such a contention. One making such a challenge must first identify a specific overt act or omission upon which the argument is based. Then the claimant must show that the act or omission was a substantial and serious deficiency measurably below the standard of performance expected of competent attorneys. Having established a specific act or omission amounting to such a serious and substantial deficiency, the claimant must then establish that, but for the serious and substantial deficiency, the outcome of the proceedings probably would have been different. If the claimant establishes these three factors, then the fourth step of the Knight test comes into play: the showing must withstand the state’s rebuttal which is achieved by proving beyond a reasonable doubt that there was no prejudice in fact. Armstrong v. State, 429 So.2d 287, 290 (Fla.1983).

Appellant contends that his original trial counsel was defective in not presenting a closing argument to the jury. Appellant argues that counsel was ineffective in that the failure to argue to the jury was tantamount to an admission of guilt. Based on the testimony below and the original trial record, we conclude that counsel’s waiver of argument was a reasonable tactical decision under the circumstances. Because of the substantial evidence of appellant’s involvement in the robbery and murder, trial counsel chose to submit the question of guilt or innocence, and the question of degree of guilt, to the jury without argument. By this tactic counsel was able to deprive the prosecuting attorney of the opportunity to present a rebuttal argument. Defense counsel could have reasonably decided (and did so, according to his testimony below) that it would be better for his client’s case to submit the issue to the jury without argument than to allow the prosecutor the final opportunity to comment to the jury on what the evidence showed. Thus defense counsel was not admitting that his client was “guilty as charged,” as is argued by appellant.

Appellant points out that his original trial defense counsel did not take any discovery depositions prior to trial. This assertion does not even satisfy the first step of the four-step Knight test. In order to characterize the lack of depositions as a specific omission, the appellant would have to identify a specific evidentiary matter to which the failure to depose witnesses would relate. If a specific matter upon which there was a lack of pre-trial discovery were identified, then it would be appropriate to proceed to the second step of the Knight test. But the simple assertion that there were no depositions taken does not qualify as an identification of a specific omission. Therefore appellant’s reliance on the lack of discovery depositions affords him no relief.

Appellant makes numerous references to defense counsel’s performance at the sentencing phase of the trial in 1974. As was noted above, on appeal to this Court appellant was awarded a new trial on the question of sentencing. The basis of the Court’s decision was that the trial court had erred in refusing to allow defense counsel to present certain matters to the jury. Messer v. State, 330 So.2d 137, 141-43 (Fla. 1976). Appellant’s present sentence of death was imposed after a second sentencing trial so any questions concerning defense counsel’s effectiveness at the first sentencing proceeding have become moot.

Several other suggestions in appellant’s brief Concerning defense counsel’s performance, to the extent that they identify specific omissions or overt acts, have nevertheless failed to establish serious and substantial deficiencies measurably below the standard expected of competent counsel.

Appellant argues that statements in the trial court’s order denying his motion, referring to the trial judge’s experience and qualifications in criminal law and procedure, constituted testimony by the trial judge on issues of fact. Appellant says this violated judicial ethics and denied him the right of cross-examination, and therefore was reversible error. We find this argument to be without merit.

Appellant presents several other arguments pertaining to the validity of his conviction and sentence. They are all issues which would have been appropriate for argument on appeal of the judgment and sentence but which are not cognizable in this proceeding. See Palmes v. State, 425 So.2d 4 (Fla.1983); Thompson v. State, 410 So.2d 500 (Fla.1982).

Having found no error, we affirm the trial court’s order denying appellant’s mo-, tion for post-conviction relief under rule 3.850.

Habeas Corpus

Petitioner claims that he received ineffective assistance of counsel in the handling of his appeal to this Court. Specifically petitioner argues that his appellate counsel failed to argue that two prospective jurors were erroneously excluded for cause from serving on the jury because of their views on the death penalty in violation of the United States Supreme Court’s pronouncement in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Petitioner claims that because the two prospective jurors had not made it unequivocally clear that they could not, because of their views on capital punishment, be impartial in determining guilt, they should not have been excluded for cause. Petitioner concludes that his conviction is invalid by virtue of his having been tried by a tribunal organized to return a verdict of death.

We need not reach the merits of petitioner’s argument because even if there had been error under Witherspoon at the first sentencing trial, petitioner would not be entitled to relief. The jury venire members petitioner refers to were excused from sitting on the jury at his trial in 1974 at which petitioner was convicted and sentenced to death. As has been stated above, however, on appeal this Court affirmed the conviction but remanded for resentencing before a new jury. Messer v. State, 330 So.2d 137 (Fla.1976).

Because petitioner received a new sentencing hearing, he has no grounds for complaining about a Witherspoon violation with respect to the first sentencing jury. For in Witherspoon, the Supreme Court specifically stated that their holding does not “render invalid the conviction, as opposed to the sentence, in this or any other case.” 391 U.S. at 522 n. 21, 88 S.Ct. at 1777 n. 21 (emphasis in original). Hence even if petitioner were correct in his allegations that prospective jurors were erroneously excused, he would not be entitled to have his conviction set aside, and any impact the alleged error had on his sentence has become moot since a second sentencing proceeding was held.

Petitioner also argues that he was denied due process on the ground that this Court failed to conduct “proportionality” review of his sentence. In support of this argument petitioner points out that in approving his death sentence, this Court did not specifically compare his case with other death penalty cases. We find this argument to be without merit. We have previously expressly held that “our review process is to ensure relative proportionality among death sentences which have been approved statewide” and that we must “compare the ease under review with all past capital cases to determine whether or not the punishment is too great.” Brown v. Wainwright, 392 So.2d 1327, 1331. (Fla. 1981). We reject the assertion that in our written opinion we must explicitly compare each death sentence with past capital cases. In our previous review of petitioner’s sentence we found that there was sufficient evidence to support the trial judge’s findings, that the weighing process was properly carried out, and that the death sentence was appropriate under principles of proportionality. Habeas corpus is not a vehicle for obtaining a second determination of matters previously decided on appeal. Therefore we will not consider petitioner’s argument that this Court’s previous consideration of his sentence did not comport with due process of law.

We deny the petition for writ of habeas corpus.

Having determined that the order appealed shall be affirmed and the habeas corpus petition denied, we also deny the prisoner’s request for a stay of execution. No motion for rehearing shall be entertained.

It is so ordered.

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


text:
    THE FLORIDA BAR, Petitioner, v. Walker T. WATKINS, Respondent.
    No. 63381.
    Supreme Court of Florida.
    Oct. 13, 1983.
    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, and James P. Hahn, Chairman, Standing Committee on Unauthorized Practice of Law, Lakeland, for The Florida Bar, petitioner.
    No appearance for respondent.
   PER CURIAM.

This matter is before us on a petition against the unauthorized practice of law filed March 9,1983, pursuant to Florida Bar Integration Rule, article XVI. The petition alleged that respondent, not a member of The Florida Bar, engaged in the unauthorized practice of law by committing one or more of the following acts:

1. On or about December 1, 1980, Respondent held himself out as an attorney to one John D. Schnurman, Jr., for whom Respondent prepared a last will and testament and for which services Mr. Schnurman paid Respondent the sum of $100.
2. On or about March 18, 1981, Respondent agreed to represent John D. Schnurman and Doris H. Schnurman in a civil suit brought against them by a neighbor. On or about April 21, 1981, Mr.' and Mrs. Schnurman paid Respondent $200 as a retainer, and on or about May 17, 1981, Mr. and Mrs. Schnurman paid $700 as the balance of the fee required by Respondent for representing them in the case. Subsequently, on or about July 23, 1981, Respondent gave legal advice to Mr. and Mrs. Schnurman by counseling them to enter into a joint stipulation for entry of injunction. Further, a hearing in the case was scheduled for March 10,1982, and on or about March 9, 1982, Respondent withdrew from representing Mr. and Mrs. Schnurman, which required them to incur an additional $400 in attorney fees to retain counsel for the hearing. The activities and representations of Respondent caused injury to Mr. and Mrs. Schnurman.
3. On or about October 28, 1981, Respondent, a member of the Bar of Ohio, was suspended indefinitely from the practice of law by the Supreme Court of Ohio for the violation of two separate provisions of the Code of Professional Responsibility of that jurisdiction. Subsequently, on or about July 21, 1982, Respondent stated during an investigation proceeding conducted by members of the Thirteenth Circuit Committee on the Unauthorized Practice of Law that he was currently licensed to practice law in Ohio.

The Florida Bar petitioned for this Court to issue a permanent injunction preventing respondent from engaging in the acts complained of and from otherwise engaging in the practice of law in the State of Florida while not duly licensed to practice in this state.

This Court determined that the petition demonstrated a preliminary basis for relief and on April 28, 1983, issued an order commanding respondent to show cause why the petition should not be granted. Respondent failed to respond to the order. We therefore take as true the allegations of the petition and grant the petitioner’s prayer for relief. Respondent is permanently enjoined from engaging in the acts complained of and from otherwise engaging in the.practice of law unless and until respondent becomes duly licensed to practice law in the State of Florida.

Costs in the amount of $35.00 are hereby taxed against the respondent.

It is so ordered.

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


author: McDONALD, Justice. SHAW, Justice, BOYD, Justice,

text:
    Ara Williams VanBIBBER, Appellant, v. HARTFORD ACCIDENT & INDEMNITY INSURANCE CO., Appellee.
    No. 63584.
    Supreme Court of Florida.
    Oct. 13, 1983.

      E.C. Deeno Kitchen, Brian S. Duffy and Robert King High, Jr. of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for petitioner.
    William B. Wiley and Charles A. Stampers of McFarlain, Bobo, Sternstein, Wiley & Cassedy, Tallahassee, for respondent.
    Gabriel Mazzeo, Dept, of Ins., Tallahassee, for Bill Gunter, Ins. Com’r and Treasurer of the State of Florida, amicus curiae.
    Robert D. Peltz of Rossman & Baumber-ger, Miami, for Academy of Florida Trial Lawyers, amicus curiae.
    Carl D. Motes of Maguire, Voorhis & Wells, Orlando, for Florida Defense Lawyers Ass’n, amicus curiae.
   McDONALD, Justice.

VanBibber appealed the trial court’s dismissal of an insurance company as a party defendant. The first district certified the appeal as passing on a question of great public importance or as having a great effect on the administration of justice throughout the state. We have jurisdiction pursuant to article V, section 3(b)(5) of the state constitution.

The issue in this case is the constitutionality of section 627.7262, Florida Statutes (Supp.1982). A second issue, if the statute is found constitutional, is whether the statute is applicable to causes of action accruing prior to the effective date of the statute. We hold that the statute is constitutional, but that it has no application to a cause of action predicated on events which occurred prior to the effective date of the statute.

VanBibber, claiming an injury, sued Pub-lix Super Markets and its insurance carrier, Hartford, for a claimed tort that occurred on June 25, 1982. Relying on section 627.-7262, the trial judge dismissed Hartford from the case, holding the statute both constitutional and applicable to the instant case. On appeal the district court certified the cause to this Court as requiring immediate resolution.

Section 627.7262 reads as follows:

Nonjoinder of insurers.—
(1) It shall be a condition precedent to the accrual or maintenance of a cause of action against a liability insurer by a person not an insured under the terms of the liability insurance contract that such person shall first obtain a judgment against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy.
(2) No person who is not an insured under the terms of a liability insurance policy shall have any interest in such policy, either as a third-party beneficiary or otherwise, prior to first obtaining a judgment against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy.
(3) Insurers are affirmatively granted the substantive right to insert in liability insurance policies contractual provisions that preclude persons who are not designated as insureds in such policies from bringing suit against such insurers prior to first obtaining a judgment against one who is an insured under such policy for a cause of action which is covered by such policy. The contractual provisions authorized in this subsection shall be fully enforceable.

(Footnote omitted.)

It is readily apparent that, by enacting this statute, the legislature sought to modify the third-party beneficiary concept adopted by this Court in Shingleton v. Bussey, 223 So.2d 713 (Fla.1969), to provide that an injured party has no beneficial interest in a liability policy until that person has first obtained a judgment against an insured. The statute transfers the accrual of a beneficial interest from the date of occurrence until the time an action brought on a tort has matured to a judgment. The statute is quite clear that no cause of action against an insurance company shall accrue until a judgment against an insured is obtained. Moreover, the statute authorizes insurance companies to insert nonjoinder provisions in their insurance policies. The significance of this last provision is found in the language of Shingleton where this Court said:

This requirement of the procedural rules raises the presumption that unless the Legislature in the exercise of its police power regulation of insurance, affirmatively gives insurers the substantive right to insert “no joinder” clauses in liability policies there is no basis in law for insurers to assume they have such contractual right as a special privilege not granted other citizens to contract immunity with their insureds from being sued as joint defendants by strangers.

Id. at 718-19.

In Markert v. Johnston, 367 So.2d 1003 (Fla.1978), we considered section 627.7262, Florida Statutes (1977), which prohibited the joinder of a motor vehicle liability insurer in an action to determine the insured’s liability. We found the statute to be procedural and held it unconstitutional for invading this Court’s exclusive rulemak-ing authority. Thus, if the successor statute under consideration is likewise procedural, and not substantive, it would have to fail on the grounds enunciated in Markert.

We perceive substantial differences between the two statutes. The present statute requires, as a condition precedent to having a third-party interest in an insur-anee policy, the vesting of that interest by judgment; the prior statute did not. The present statute specifically authorizes a contractual provision prohibiting direct third-party suits; the prior one did not. Because of the differences between the statutes, Markert does not control.

The regulation and supervision of insurance is a field in which the legislature has historically been deeply involved. See chs. 624-632, Fla.Stat. While this Court may determine public policy in the absence of a legislative pronouncement, such a policy decision must yield to a valid, contrary legislative pronouncement. In Shingleton we found that public policy authorized an action against an insurance company by a third-party beneficiary prior to judgment. The legislature has now determined otherwise. Our public policy reason for allowing the simultaneous joinder of liability carrier espoused in Shingleton, therefore, can no longer prevail. Finding that the statute is substantive and that it operates in an area of legitimate legislative concern precludes our finding it unconstitutional. If a statute can be construed to be constitutional it should be. Falco v. State, 407 So.2d 203 (Fla.1981). We hold that section 627.7262, Florida Statutes (Supp.1982), is constitutional.

Until the enactment of this statute our pronouncements in Shingleton and Markert authorized, simultaneously, a suit in tort against a tortfeasor and a claim against that tortfeasor’s insurance company. The legislature did not make this statute retroactive so we need not concern ourselves with whether this was permissible. We have held today that the statute is substantive. In the absence of clear legislative intent to make them retroactive, substantive statutes are prospective only. Seddon v. Harpster, 403 So.2d 409 (Fla.1981). Because the incident in this cause occurred prior to the effective date of section 627.-7262, October 1, 1982, Shingleton and Markert control this suit.

The order of the trial judge is affirmed to the extent of holding the statute constitutional, but is reversed in holding it applicable to the present suit. The cause is remanded for further proceedings consistent herewith.

It is so ordered.

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

SHAW, J., concurs in part and dissents in part with an opinion, in which ADKINS, J., concurs.

BOYD, J., dissents with an opinion.

SHAW, Justice,

concurring in part and dissenting -in part.

The incident in this ease occurred prior to the effective date of section 627.7262, Florida Statutes (Supp.1982), which delays the right of an injured plaintiff to sue a liability insurer until judgment is obtained against the insured defendant. I agree with the majority that there is no clear legislative intent to make the statute retroactive and that the statute is not applicable to the case at hand. Inasmuch as this holding disposes of the case, I am loath to go on in dicta to examine the constitutionality of the statute. Nevertheless, since the majority does so, and the issue is of great public importance, I express my view that the statute is unconstitutional because it imper-missibly abrogates a right of action which existed under the Florida Constitution of 1885; unconstitutionally denies due process, and unconstitutionally denies or delays the right of access to the courts under sections 9 and 21, respectively, article I, Florida Constitution of 1968.

Shingleton v. Bussey, 223 So.2d 713 (Fla. 1969), overruled Artille v. Davidson, 126 Fla. 219, 170 So. 707 (1936), by holding that an injured plaintiff had a direct cause of action against a motor vehicle liability insurer which accrued concurrently with the right of action against the insured defendant, contingent on the later establishment of liability to judgment of the insured defendant. The tort suit in Shingleton was filed sometime prior to June, 1968, and was controlled by the Constitution of 1885. Under then existing law (Artille), as under section 627.7262 here, a plaintiff could not bring suit against a liability insurer until a judgment was obtained against the insured defendant. As here, the constitutional issue in Shingleton was whether the right of action against the insurer could be denied or delayed until such time as judgment was obtained against the insured defendant. Our answer was an unequivocal no, because, inter alia, “[t]his hardly comports with Section 4, Declaration of Rights, State Constitution [1885], F.S.A., that the courts shall be open so that persons injured shall have remedy by due course of law without denial or delay.” 223 So.2d at 717.

In explaining the Shingleton decision, then Chief Justice Ervin rigorously examined, in addition to the constitutional issues, the various public policy factors bearing on liability insurance and the rights of the various parties to such suits. To my mind, Shingleton established beyond a doubt that it is sound public policy to immediately bring all of the real parties in interest into court in order to protect their rights, to facilitate the litigation, and to resolve the dispute. I will not restate in full Chief Justice Ervin’s penetrating examination of these public policy factors; in short, he reasoned that motor vehicle liability insurance is commonplace, that it is statutorily required, that it is primarily for the benefit of injured third parties, that the liability insurer is a real party in interest, and that it is unrealistic to defer accrual of the cause of action against the insurer until judgment is obtained against the insured defendant.

If Shingleton were grounded exclusively on the public policy views of this Court, I would agree with the majority that we should yield to a valid, contrary legislative pronouncement and hold the statute constitutional. In fact, however, Shingleton was founded on three independent, but mutually supportive, grounds: public policy; constitutional right of access to the courts and justice without sale, denial, or delay; and the constitutional authority of this Court to promulgate judicial procedure (specifically liberal joinder rules providing due process). Chief Justice Ervin’s opinion shows clearly that fundamental constitutional rights (access to courts and due process) are not only consistent with, but serve to advance sound public policy:

In the modern world which is fraught with public safety hazards, it is unrealistic that mass liability insurance coverage designed to afford protective benefits for the general public should contain such condition precedent [no joinder clauses] as a barrier to the right of identified members of the protected class to pursue a speedy, realistic and adequate recovery action. This hardly comports with Section 4, Declaration of Rights, State Constitution [1885], F.S.A., that the courts should be open so that persons injured shall have remedy by due course of law without denial or delay.

Id. at 717.

The rights and the grants and limitations of power embodied in our federal and state constitutions were inserted precisely because they were good public policies; presumably, they still are good public policies. One could, for example, take each of the twenty-three sections of the Declaration of Rights and argue, persuasively, that each is defensible as sound, contemporary public policy. However, one could also argue, un-persuasively I trust, that trial by jury, for example, is too costly and inefficient from a contemporary public policy viewpoint. If the proponents of such a view obtained a legislative majority and enacted a law rescinding the right to trial by jury on public policy grounds, would we be obliged to defer to the legislative pronouncement of public policy? Obviously not; we would be obliged to hold that the statute was unconstitutional. The fact that a legislative act is said to be good public policy is not a basis for deferring to the legislature when a constitutional right is violated. See Markert v. Johnston, 367 So.2d 1003, 1005 n. 8 (Fla. 1978), where we rejected an analagous fallacy that the legislature could encroach on judicial rule making because the rules reflected prevailing public policy, by design or coincidence. Even if one holds that section 627.7262, Florida Statutes (Supp.1982), deals with substantive rights and that we should yield to the legislature on the separation of powers issue, it does not follow that the legislature may abrogate a right of action which existed under the Constitution of 1885, or may deny due process or delay access to the courts in violation of the Constitution of 1968.

Under the separation of powers doctrine, this Court has the constitutional duty to prescribe rules of judicial procedure. We have recognized that this does not include substantive rights which fall within the constitutional power of the legislature. The esoteric distinctions between procedure and substance are not always easy to define, but whatever the label, neither this Court nor the legislature may deny a litigant procedural due process. Our rules on liberal joinder are not merely prerogatives of this Court which we grant in order to conserve court resources under the rubric of public policy; they also serve to provide procedural due process. Chief Justice Ervin recognized this in Shingleton and I agree with his cogent analysis at page 719: denial of a direct action against the liability insurer may impermissibly serve to defeat recovery and deprive the plaintiff “of an open, speedy and realistic opportunity to pursue by due process his right of an adequate remedy at law jointly against the insured and insurer.”

I consider the challenged statute to be an unconstitutional denial of rights arising under article I, sections 9 and 21 of the Constitution of 1968, and would so hold even if this issue were being presented for the first time and we were deciding the issue independently of Shingleton and the Constitution of 1885. However, as a matter of well established law, we must consider Shingle-ton and the Constitution of 1885 because “[i]t, of course, is assumed that the citizens who adopted the 1968 Constitution intended that the language therein be given the same construction as similar language in the prior Constitution of 1885.” Kluger v. White, 281 So.2d 1, 6 (Fla.1973) (Boyd, J., dissenting) (footnote quoting access to courts provision of 1885 Constitution omitted). I agree with the majority that this statute seeks to “modify” Shingleton by delaying the accrual of the cause of action against the insurer until judgment is obtained against the insured, but in my opinion the modification overturns entirely the only new law stated in Shingleton —that the cause of action against the insurer and insured accrues concurrently. Thus, Shingleton is on all fours with the present case and we are faced with the straightforward issue of whether the legislature may override a decision of this Court based on our construction of the 1885 Constitution which the citizens of the state adopted when they ratified the Constitution of 1968. In my view, emphatically it may not. As we stated approvingly in Reed v. Fain, 145 So.2d 858, 866 (Fla.1962):

It has been held, and we think with propriety, that “The judicial interpretation of constitutional provisions is so forcible that, where a new Constitution is adopted without change of the rule laid down by the courts, the construction is adopted by the new Constitution and becomes a part of it to the degree that it cannot be changed even by a statute expressly undertaking to do so.” Lyle v. State, 80 Tex.Cr.R. 606, 193 S.W. 680 (Italics Supplied [by Reed court].)

In my view, the legislature may not abrogate the concurrent right of action established by Shingleton and ratified by the electorate when they adopted the Constitution. of 1968.

I am not persuaded that joinder of an insured and insurer, and litigation of negligence and insurance coverage issues in a single action, is prejudicial to the insurer. I agree with Chief Justice Ervin that jurors are not so immature and naive as to be incapable of impartially deciding issues involving liability insurers. I would add that our constitution provides for the right to a trial by jury and that our legal system has sufficient safeguards to ensure that the injured party, the insured, and the insurer all receive a fair trial from an impartial jury. I note also that the rules of civil procedure provide for stipulations, admissions, pretrial conferences, and partial summary judgments which can be used to expedite trial proceedings by removing the issue of insurance coverage and contingent liability from the jury. If we assume that insurance coverage and contingent liability are either not at issue or that the insurance company has prepared the insurance policy so that it can be plainly read by the trial court so as to determine as a matter of law whether coverage and contingent liability exist, there should be few occasions to present the issue and relevant evidence to the jury. On the other hand, on those occasions when there is a factual issue as to coverage and contingent liability, it is in the interest of all parties, the legal system, and the public, to have this issue timely raised. It may well be the primary issue which will control settlement negotiations, party alignments, and trial strategies. One can visualize almost endless permutations, including whether the plaintiff prosecutes, settles, or dismisses the suit; whether the insured defendant is represented by his own or by insurer’s counsel, defends or settles the suit, or brings a third-party action against the insurer; and whether the defendant insurer brings a declaratory judgment action, participates in, settles, or defends the suit. For the reasons aforestated, I would hold section 627.7262, Florida Statutes (Supp.1982), to be unconstitutional.

ADKINS, J., concurs.

BOYD, Justice,

dissenting.

I respectfully dissent to the majority opinion and would hold that section 627.-7262, Florida Statutes (Supp.1982), encroaches upon the authority of this Court to promulgate rules of procedure. I would reaffirm the principles announced in Shingleton v. Bussey, 223 So.2d 713 (Fla.1969), where this Court recognized that the join-der of parties is a procedural matter.

In Shingleton we determined that persons injured by insured tortfeasors are third-party beneficiaries of the contracts of liability insurance entered into by insureds and their insurers; and that liability insurers are real parties in interest to lawsuits brought against their insureds. The fact that considerations of public policy influenced these determinations does not mean that they were not fully grounded in the Court’s rule-making power. See Markert v. Johnston, 367 So.2d 1003 (Fla.1978).

Since our decision in Shingleton v. Bussey there have been consistent efforts by the insurance industry to change the practice of allowing insurers to be named as defendants in cases where the relation of liability insurer is alleged. On more than one occasion the Legislature has enacted legislation to overrule Shingleton, but this Court has upheld Shingleton because of the Court’s rule-making authority. The statute before us would require that the determination of liability under insurance contracts await the determination of liability of insured tort-feasors, even though the accused tort-feasors will, as before, be represented in court by lawyers retained by insurance companies. Under this statute, it may be necessary for additional proceedings to be instituted on the issue of the insurer’s liability and to compel the payment of compensation in compliance with the terms of the insurance contract. By requiring that all interested parties be brought before the court at one time, Shingleton v. Bussey served the cause of judicial economy and promoted the interest of all citizens in the speedy and just resolution of lawsuits.

I dissent to the majority opinion and would hold the above statute unconstitutional because it encroaches upon the rule-making authority of this Court.

      . The pertinent portion of the trial judge’s order is:

        The Court holds that Section 627.7262, Florida Statutes (Supp.1982), is applicable to this civil action and that plaintiff has failed to satisfy the condition precedent to bringing this action against Hartford Casualty Insurance Corporation by not first obtaining a judgment against Publix Super Markets, Inc.
      The Court holds that Section 627.7262, Florida Statutes (Supp.1982), is constitutional on its face and as applied to the facts and the parties here.
      The Court holds that Hartford Casualty Insurance Corporation should be dismissed as a party to this civil action until such time as plaintiff has obtained a judgment against Publix Super Markets, Inc. and thereby satisfied the statutory condition precedent.

      . The language in Shingleton signalled such enactment to be a proper legislative prerogative.

      . See Bussey v. Shingleton, 211 So.2d 593 (Fla. 1st DCA 1968), issued 6 June 1968.

      . Note also that Markert recognized the issue of a concurrent right of action against the liability insurer but chose not to address the issue because the plain language of section 627.7262, Florida Statutes (1977), made it unnecessary.

      . Safeguards include appeal by right and the responsibility and power of the trial court to ensure a fair trial through jury selection, rules of evidence, jury instructions, directed verdicts, mistrials, remittiturs, and new trials.


author: PER CURIAM. BOYD, Justice, ALDERMAN, Chief Justice,

text:
    Doyle Edward CONNER, Petitioner, v. Johnnie B. CONNER and L. Ralph Smith, Respondents.
    No. 62089.
    Supreme Court of Florida.
    Oct. 13, 1983.
    Gene D. Brown of Brown & Camper, Tallahassee, for petitioner.
    Sidney L. Matthew of Gorman & Matthew, Tallahassee, Simon, Schindler & Tripp, Miami, and L. Ralph Smith, Jr. of Dearing & Smith, Tallahassee, for respondents.
   PER CURIAM.

This cause, Conner v. Conner, 411 So.2d 899 (Fla. 1st DCA 1982), is before us pursuant to article V, section 3(b)(3) of the Florida Constitution as conflicting with Shaw v. Shaw, 334 So.2d 13 (Fla.1976). We have jurisdiction. We approve in part and quash in part the opinion of the district court.

We agree with the First District’s holding that the property distribution should be considered in light of this Court’s opinion (issued after the decision of the trial court) in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Nonetheless, the determination that a party has been “shortchanged” is an issue of fact and not one of law, and in making that determination on the facts before it in the instant case, the district court exceeded the scope of appellate review. Shaw v. Shaw. Thus, the cause must be remanded for a further finding of fact as to what special equity, if any, the ex-wife has in property titled in the ex-husband’s name as a result of her contributions to his business and political success.

Consequently, the issue of attorney’s fees must be revisited if any redistribution of property should materially change the parties’ abilities to bear their own or the other party’s attorney’s fees. We note that the reasonableness of attorney’s fees is also an issue of fact, to be determined by the trial court. International Funding Corp. v. Decora Steel City, Inc., 317 So.2d 130 (Fla. 3d DCA 1975).

It is so ordered.

OVERTON, McDonald, EHRLICH and SHAW, JJ., concur.

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

ALDERMAN, C.J., dissents with an opinion.

BOYD, Justice,

concurring in part and dissenting in part.

The district court of appeal created express and direct conflict with Shaw v. Shaw, 334 So.2d 13 (Fla.1976), when it substituted its judgment for that of the chancellor on a matter clearly falling within the area for exercise of the chancellor’s sound discretion. Because the trial judge’s exercise of discretion was not clearly erroneous or inequitable, it should have been affirmed.

There is no need for a remand for reconsideration in light of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). The district court characterized that decision as a “landmark” allowing the use of lump-sum alimony as a means of effecting equitable distribution of property acquired during the marriage. If that was the import of the Cana-karis decision then it appears to me that the circuit judge anticipated it. In addition to four yeafs of partial support by way of rehabilitative alimony, the judge awarded permanent alimony in an amount sufficient to provide partial support and also lump-sum alimony consisting of $10,000 in cash, the husband’s interest in the marital home, and satisfaction of the mortgage on the home by the husband. The former wife has also received, of course, her share of all other jointly held properties.

The circuit judge was the decision-maker in the best position to determine what would be an equitable distribution of the marital assets and the extent of the wife’s contributions to the acquisition thereof, as well as the future resources, prospects, and needs of the parties. In substituting its judgment for his, the district court exceeded the proper scope of appellate review. There is nothing about the circuit court judgment that called for such disturbance by the district court.

The decision of the district court should be quashed with directions to affirm in full the trial court’s decree.

ADKINS, J., concurs.

ALDERMAN, Chief Justice,

dissenting.

I would deny review in this case because the decision of the district court of appeal in the present case does not expressly and directly conflict with a decision of another district court of appeal or of this Court.


author: PER CURIAM. EHRLICH, Justice, ADKINS, Acting Chief Justice,

text:
    THE FLORIDA BAR, Complainant, v. John N. MAYO, Respondent.
    No. 62085.
    Supreme Court of Florida.
    Oct. 13, 1983.

      John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Richard B. Liss, Bar Counsel, Miami, for complainant.
    No appearance for respondent.
   PER CURIAM.

This disciplinary proceeding is before the Court on the complaint of The Florida Bar and the report of the referee recommending that respondent John N. Mayo be suspended from the practice of law for one year. Neither the Bar nor respondent has petitioned for review. We have jurisdiction. Art. V, § 15, Fla.Const.

Respondent was charged with making a payment for services rendered by means of a check that was returned for insufficient funds: Respondent filed no responsive pleadings and did not appear at the final hearing though he received notice. Since no answers or objections to the Bar’s requests for admissions were filed, the referee deemed the matters admitted. The referee found that respondent issued a check for $800.00 to Richard Lord and Associates for services provided. The check was returned for insufficient funds and later attempts at collection were unsuccessful even though respondent gave assurance that he would pay. The referee concluded that respondent had violated Florida Bar Integration Rule, article XI, Rule 11.02(3)(a) and the Florida Bar Code of Professional Responsibility, Disciplinary Rule 1-102(A)(4). The referee recommended that respondent be suspended from the practice of law for one year with reinstatement contingent upon proof of rehabilitation and restitution to Richard Lord and Associates. We adopt the referee’s findings and approve his recommendations.

We therefore suspend John N. Mayo from the practice of law in Florida for a period of one year from the date of this order under the above-stated conditions. Costs in the amount of $468.10 are assessed against respondent.

Jt, ⅛ go ordered.

BOYD, ÓVERTON, McDONALD and EHRLICH, JJ., concur.

EHRLICH, J., concurs specially with an opinion, in which OVERTON and Mc-DONALD, JJ., concur.

ADKINS, Acting Chief Justice, dissents with an opinion.

EHRLICH, Justice,

concurring specially.

Respondent neither offered a defense nor participated in the disciplinary proceedings. Neither party sought review of the report of the referee. The Court, pursuant to article XI, Rule 11.09(3)(f) of the Integration Rule of The Florida Bar directed the parties to submit briefs directed to the suitability of the disciplinary measure recommended by the referee. The Florida Bar filed a brief, but the respondent did not do so.

I am of the opinion that the recommended suspension from the practice of law for the period of one year with reinstatement contingent upon proof of rehabilitation and restitution to the complaining parties is too severe and drastic for the offense charged. I concur with the Court’s opinion approving the discipline recommended by the referee only because Mr. Mayo did not see fit to seek review or favor us with a brief as requested by the Court.

OVERTON and McDONALD, JJ., concur.

ADKINS, Acting Chief Justice,

dissenting.

I dissent from the finding that respondent’s conduct constituted a violation of professional ethics and also dissent to the suspension of respondent. We have held that the issuance of a worthless check, when considered in connection with other conduct, subjected the attorney to professional discipline. The Florida Bar v. Davis, 361 So.2d 159 (Fla.1978).

The respondent, Mayo, gave a post-dated check in the sum of $800 as payment of part of a fee for “professional career counseling services.” Respondent did not commit a criminal offense, but created a debt. The civil courts are adequate for the collection of money and grievance procedure should not be used for this purpose.

The referee and this Court considered respondent’s nonappearance and his failure to cooperate with The Florida Bar as aggravating factors resulting in the suspension for one year with reinstatement contingent upon proof of rehabilitation and restitution. Failure to cooperate with The Florida Bar is not ground for a suspension, particularly when The Florida Bar is allowing the disciplinary procedure to collect a bad debt. The system is damaged when this procedure is used in this manner. The controversy should be referred to the county court as a civil debt.


author: PER CURIAM. PER CURIAM.

text:
    ALLINGTON TOWERS NORTH, INC., et al., Appellants, v. S.A. WEISBERG and S.A. Weisberg, Inc., Appellees. ALLINGTON TOWERS CONDOMINIUM NORTH, INC., Appellant, v. ALLINGTON TOWERS NORTH, INC., Appellee. ALLINGTON TOWERS NORTH, INC., et al., Appellants, v. ALLINGTON TOWERS CONDOMINIUM NORTH, INC., Appellee.
    Nos. 82-338, 82-709 and 82-769.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 1983.
    Rehearing Denied Nov. 9, 1983.
    Alvin Capp of Capp, Reinstein, Kopelow-itz & Atlas, P.A., Ft. Lauderdale, for All-ington Towers North, Inc., et al.
    Steven A. Colsky of Martin D. Kahn, P.A., North Miami, for S.A. Weisberg and S.A. Weisberg, Inc.
    J. Bruce Hoffman and Henry J. Hunne-feld of Spencer, Hass-Perlman, Hoffmann, Bloom & Bernstein, Coral Gables, for Westinghouse Electric Corp.
    John R. Hargrove of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Ft. Lauder-dale, for The Ceco Corp.
    John A. Shughart, Jr., of Welbaum, Zook, Jones & Williams, Miami, for Aetna Drywall Contractors, Inc.
    Thomas M. Pflaum and Deborah J. Miller of Simon, Schindler & Hurst, P.A., Miami, for Allington Towers Condominium North, Inc.
   PER CURIAM.

These are consolidated appeals.

Upon survey of the record and consideration of the several briefs and arguments of counsel, we determine, with the exception hereafter noted, that no reversible error has been demonstrated.

In Case No. 82-709 the counterclaim of Allington Towers Condominium North, Inc., was dismissed with prejudice for the reason that its answers to interrogatories were deemed insufficient. There was no prior motion to compel. There was no prior order specifying the deficiencies and ordering the counterclaimant to file new answers. There was a verbal warning earlier given by the trial court at a hearing upon a motion that did not involve the counter-claimant. However, in view of the drastic action of here dismissing the claim with prejudice we are of the opinion that such warning was insufficient. We feel that the trial court as a condition precedent to such a dismissal would have to specifically point out the shortcoming in the answers thereby giving the counterclaimant an opportunity to remedy. Then, if the counterclaimant failed to file sufficient answers as ordered without good cause the trial court would be in position to invoke sanctions such as dismissal. We reverse and remand upon authority of State Road Department v. Hufford, 161 So.2d 35 (Fla. 1st DCA 1964) and Rashard v. Cappiali, 171 So.2d 581 (Fla. 3d DCA 1965). See also Swindle v. Reid, 242 So.2d 751 (Fla. 4th DCA 1970) and Herold v. Computer Components International, Inc., 252 So.2d 576 (Fla. 4th DCA 1971).

We affirm as to Case Nos. 82-338 and 82-769. We reverse and remand as to Case No. 82-709.

LETTS, BERANEK and WALDEN, JJ., concur.

UPON MOTION FOR REHEARING

PER CURIAM.

Appellants in Case No. 82-338 and appellee in Case No. 82-709 correctly point out in their Motion For Rehearing that this Court’s opinion filed August 10, 1983, was in error. While we reversed in Case No. 82-709, we affirmed in Case No. 82-338, even though the facts and situations were identical in the two cases. Accordingly, we harmonize our holdings by reversing Case No. 82-338 for the reasons stated in our initial opinion.

Having here corrected our opinion the Motion For Rehearing is

DENIED.

BERANEK, LETTS and WALDEN, JJ., concur.


author: ZEHMER, Judge.

text:
    John CMEYLA, Appellant, v. BAYNARD-THOMPSON FUNERAL HOME and Aetna Insurance Co., Appellees.
    No. AQ-99.
    District Court of Appeal of Florida, First District.
    Sept. 12, 1983.
    As Corrected on Denial of Rehearing Oct. 26, 1983.
    Barry M. Salzman, of Chambers & Salzman, P.A., St. Petersburg, for appellant.
    Mark E. Hungate, of Fowler, White, Gil-len, Boggs, Villareal & Banker, P.A., St. Petersburg, for appellees.
   ZEHMER, Judge.

The issue in this worker’s compensation case is whether the deputy commissioner erred by reducing claimant’s wage-loss benefits fifty percent pursuant to Section 440.-15(3)(b)(4), Florida Statutes (1981), because the sixty-three year old claimant was receiving social security benefits at the time of his industrial accident. We reverse.

Upon reaching age sixty-two, long before the accident here involved, claimant partially retired and began receiving social security retirement benefits. At that time, he voluntarily limited his working hours and income with the employer to stay below the maximum earned income permissible without causing a reduction in such social security benefits. He continued doing essentially the same work as before, and on December 23, 1981, he suffered a compensable injury to his lower back. Claimant reached maximum medical improvement by June 29, 1982, with an eight percent permanent impairment to the body. He filed for wage-loss benefits, and his claim was controverted by the employer and carrier on the basis that claimant had voluntarily limited his income by refusing employment with the employer.

A hearing was held on November 16, 1982, resulting in the entry of a compensation order on November 19, 1982, wherein the deputy found that claimant had not voluntarily limited his income and was entitled to wage-loss benefits from June 29, 1982, to October 31, 1982. Since claimant had commenced receiving social security benefits prior to the accident and continued to receive those benefits following the accident, the deputy reduced the wage-loss benefits by fifty percent in accordance with Section 440.15(3)(b)(4). Claimant appealed only this issue.

According to Larson, Workmen’s Compensation (Desk Edition), Section 97.10:

Wage-loss legislation is designed to restore to the worker a portion, such as one-half to two-thirds of wages lost due to the three major causes of wage-loss: physical disability, economic unemployment, and old age. The crucial operative fact is that of wage loss; the cause of the wage loss merely dictates the category of legislation applicable. Now if a workman undergoes a period of wage loss due to all three conditions, it does not follow that he should receive three sets of benefits simultaneously and thereby recover more than his actual wage. He is experiencing only one wage loss and, in any logical system, should receive only one wage-loss benefit. This conclusion is inevitable, once it is recognized that workmen’s compensation, unemployment compensation, non-occupational sickness and disability insurance, and old age and survivors’ insurance are all parts of a system based, upon a common principle. If this is denied, then all coordination becomes impossible and social legislation becomes a grab-bag of assorted unrelated benefits.

Section 440.15(3)(b)(4), Florida Statutes (1981), provides as follows:

When the injured employee reaches age 62, wage-loss benefits shall be reduced by the total amount of the social security retirement benefits which the employee is receiving, not to exceed 50% of the employee’s wage-loss benefits.

This section requires an equitable reduction of wage-loss benefits to employees who are injured and commence receiving such benefits and subsequently begin receiving social security benefits at age sixty-two. The need for a reduction of wage-loss benefits in that situation is evident because such benefits compensate the claimant for loss of wages based on a pre-retirement income level and the addition of social security income results in the receipt of duplicate, as well as excessive, benefits. Social security retirement benefits compensate an individual for the loss of wages resulting from partial or complete retirement from the labor market. If an individual partially retires and receives social security benefits designed to compensate him for his loss of earned income, he should not also continue to receive worker’s compensation benefits based on his higher pre-retirement wages. This is the purpose of Section 440.-15(3)(b)(4).

In the present case, however, claimant had already partially retired from the labor force, was receiving social security benefits at the time of his injury, and his wage-loss benefits were based on an average weekly wage reflecting his reduced post-retirement income. As a result, there was no duplication of benefits in the manner sought to be prevented by Section 440.15(3)(b)(4), and there should be no statutory reduction on account of the social security benefits.

The deputy commissioner’s order is REVERSED and this case is REMANDED for entry of an order awarding the claimant full wage-loss benefits. •

REVERSED.

JOANOS and WIGGINTON, JJ., concur.


author: LEHAN, Judge.

text:
    Ambrose GARNER, Appellant, v. STATE of Florida COMMISSION ON ETHICS, Appellee.
    No. 82-2619.
    District Court of Appeal of Florida, Second District.
    Sept. 14, 1983.
    Rehearing Denied Oct. 31, 1983.
    Joseph C. Jacobs and Dean Bunch of Er-vin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Patricia R. Gleason, Asst. Atty. Gen., Tallahassee, and Philip C. Claypool, Staff Atty., Com’n on Ethics, Tallahassee, for appellee.
   LEHAN, Judge.

Complaints were filed with the Florida Commission on Ethics (the “Commission”) against appellant alleging that he corruptly used or attempted to use his official position as president of Hillsborough Community College to sexually harass or obtain sexual favors from various female subordinate personnel and that such behavior constituted a violation of section 112.313(6), Florida Statutes (1981). After finding that the complaints were legally sufficient, conducting an investigation, finding probable cause to proceed, and charging appellant with five instances of the foregoing conduct, the Commission conducted an extensive hearing. Following that hearing, the Commission entered a final order which contained findings of fact and law sustaining the charges and which recommended that appellant be suspended from office for three months. In re Ambrose Garner, 5 F.A.L.R. 105-A (Jan. 24, 1983). Appellant appeals that order of the Commission. We affirm.

One of appellant’s contentions on appeal is that section 112.313(6) is unconstitutional as applied in this case. Appellant previously raised the issue of the constitutionality of that section by reason of asserted vagueness when he sought injunctive relief to prevent the Commission from proceeding on the complaints filed against him. The Circuit Court of the Second Judicial Circuit denied injunctive relief, and the First District Court of Appeal affirmed. The First District found that the allegations against appellant were within the jurisdiction of the Commission under section 112.313(6) and that section 112.313(6) is not unconstitutionally vague. Garner v. Florida Commission on Ethics, 415 So.2d 67 (Fla. 1st DCA 1982), pet. for review denied, 424 So.2d 761 (Fla.1983). We have carefully considered appellant’s arguments to the contrary but believe that that determination by the First District, which became the law of this case, is not incorrect and that section 112.313(6) was not unconstitutional as applied.

Section 112.313(6) provides that “No public officer or employee of an agency shall corruptly use or attempt to use his official position ... to secure a special privilege, benefit, or exemption for himself or others.” Section 112.313(7) defines “corruptly” as “done with a wrongful intent and for the purpose of obtaining ... any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties.”

Appellant contends that the statute did not give adequate notice that sexual harassment, with which he was charged, was prohibited; that the statute is intended to cover only economic benefit; and that, since there were no adverse job-related effects upon employees who were allegedly subjected to Appellant’s conduct, a requisite nexus between the alleged conduct and such effects was not shown. However, the charges included the obtaining of sexual favors, which we cannot say are not “any benefit” within the generally understood meaning of the term and the receipt of which was, in this context within the foregoing definition of “corruptly,” inconsistent with the performance of official duties. Also, no legislative intent to restrict the reach of the statute to economic benefits appears. See Tenney v. Commission on Ethics, 395 So.2d 1244 (Fla. 2d DCA 1981). In addition, the statute does not specifically require that as a result of a public officer’s efforts to obtain a benefit from an employee, that employee will necessarily be impacted in any particular way. In any event, appellant’s conduct was shown to have been incident to appellant’s official position; as to one of the incidents there was evidence which, while strongly contested, could have supported a finding that the uncooperative recipient of sexual advances lost her job as the result of that lack of cooperation.

Pursuant to section 120.68, Florida Statutes (1981), we have reviewed the record and the Commission’s order which found that the alleged conduct occurred in the five alleged instances and that various other instances of that type of conduct had previously occurred. We cannot hold that there was not competent substantial evidence in the record to support the findings of the Commission, specifically the finding that the alleged acts constituted use of appellant’s official position to obtain benefits inconsistent with the proper performance of his official duties.

We have also considered appellant’s other contentions and find them to be without merit.

AFFIRMED.

DANAHY, A.C.J., and CAMPBELL, J., concur.