author: BOYD, Justice.

text:
    STATE of Florida, Petitioner, v. Julian L. GIBSON and Alfred J. Gibson, Respondents.
    No. 61325.
    Supreme Court of Florida.
    June 14, 1984.

      Jim Smith, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for petitioner.
    Bennett H. Brummer, Public Defender and Robert R. Schrank, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for respondents.
   BOYD, Justice.

Following our decision of February 17, 1983, in the present proceeding, the State of Florida filed a timely petition for rehearing, calling our attention to a misapprehension of its argument on the law applicable to the facts of the case. We therefore grant rehearing, revisit and rescind the decision, and withdraw our prior opinion.

This case came to the Court for review of the decision of the district court of appeal in Gibson v. State, 403 So.2d 1019 (Fla. 3d DCA 1981). We accepted jurisdiction on the ground of conflict of decisions. Art. V, § 3(b)(3), Fla. Const.

The respondents were convicted of the following two offenses: (1) robbery while armed and (2) use or display of a firearm during the commission of a felony. The felony during which the use or display of a firearm occurred was the robbery of which respondents were convicted. That is, both offenses arose from a single criminal episode. The district court ruled that it was necessary to vacate the conviction for the lesser crime on the ground that “[s]ince the two offenses for which the defendants stand convicted ... involve the same criminal act as a necessary element of each offense, the defendants’ convictions and sentences for possession of a firearm may not stand.” 403 So.2d at 1020. The district court cited State v. Pinder, 375 So.2d 836 (Fla.1979), as authority for the following statements: “A defendant may not be convicted of two or more offenses which involve the same criminal acts. In such an instance, only the conviction for the greater charge may stand.” 403 So.2d at 1020. The quoted sentences were an overbroad and therefore inaccurate statement of the holding in State v. Pinder. Our decision in State v. Pinder was grounded on the constitutional prohibition against placing a defendant in jeopardy twice for the same offense. There, the lesser offense in question was determined to be the same offense, for double jeopardy purposes, as the greater offense because all of its elements were included among the elements of the greater offense. Here, contrarily, as the discussion to follow will show, the offense of robbery while armed does not include among its elements all of the elements of the crime of use or display of a firearm during the commission of a felony.

While relying on State v. Pinder (and, therefore, the double jeopardy clause) as authority for its holding, the district court in its opinion used certain language that was reminiscent of the judicially created “single transaction rule.” The “single transaction rule,” however, has been legislatively eliminated from the law of Florida. § 775.021(4), Fla.Stat. (1977); Borges v. State, 415 So.2d 1265 (Fla.1982).

The offense of robbery while armed is defined in section 812.13(1) and (2), Florida Statutes (1977), which provides as follows:

(1) “Robbery” means the taking of money or other property which may be the subject of larceny from the person or custody of another by force, violence, assault, or putting in fear.
(2)(a) If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) If in the course of committing the robbery the offender carried a weapon, then the robbery is a felony of the first degree, punishable as provided in s. 775.-082, s. 775.083, or s. 775.084.

The other offense respondents were convicted of, use or display of a firearm during the commission of a felony, is defined in section 790.07(2), Florida Statutes (1977), which provides as follows:

(2) Whoever, while committing or attempting to commit any felony or while under indictment, displays, uses, threatens, or attempts to use any firearm or carries a concealed firearm is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, and s. 775.084.

In Borges v. State, 415 So.2d 1265 (Fla.1982), we held that the determination of whether two statutory offenses, charged on the basis of a single act or group of acts of the accused, are the same offense by reason of one being a lesser included offense of the other, is to be made by examining the statutory elements of the offenses rather than the allegations in the charging instrument or the factual elements of evidentiary proof presented at trial. The elements of robbery while armed, as statutorily defined, are (1) a taking of money or other property that may be the subject of larceny; (2) from the person or custody of another; (3) by force, violence, assault, or putting in fear; and (4) that the offender carried a firearm or other deadly weapon in the course of committing the robbery. § 812.13(1), (2)(a), Fla.Stat. (1977). The elements of the other offense in question are (1) the display, use, or threat or attempt to use; (2) a firearm; (3) while committing or attempting to commit a felony. § 790.07(2), Fla.Stat. (1977).

In Borges v. State, we adopted the test announced in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), for determining whether two statutory offenses, when ostensibly violated by a single act of the accused, are intended to be separately prosecuted and punished. There it was said that the “applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.” 284 U.S. at 304, 52 S.Ct. at 182. Applying this test to the statutory elements of the two offenses in question in the present case, we conclude that, because each offense has at least one statutory element that the other does not, the offenses are separate crimes even when based on the same act or factual event. Therefore, under the Blockburger test, the two offenses were intended by the legislature to be separately prosecuted and punished. The offense of robbery while armed contains, in addition to its other constituent statutory elements, the element that the accused carried a firearm or other deadly weapon. The elements of the crime do not include displaying the weapon or using it in perpetrating the robbery. The offense of display or use of a firearm while committing a felony contains as one of its constituent statutory elements that the offender displayed, used, or attempted or threatened to use a firearm during the commission of a felony. It is clear that each of these offenses contains at least one constituent statutory element that the other does not. Contrary to our conclusion in the opinion of February 17, 1983, we now determine that use or display of a firearm in committing a felony is not a lesser included offense of robbery while armed but, rather, was intended by the legislature as a separate offense to be separately prosecuted and punished even where based on a single act or closely connected group of acts. § 775.021(4), Fla.Stat. (1977).

Although the district court’s opinion in the instant case did not clearly indicate whether double jeopardy protection, the “single transaction rule,” or some manifestation of legislative intent was the basis for its decision, we have some further observations concerning the arguable applicability of the double jeopardy clause to this kind of case. It should be noted that the Block-burger test is not of constitutional stature, but, rather, is a rule of statutory construction. Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). The opinion in Blockburger did not once mention the double jeopardy clause, and the decision was grounded purely on legislative intent that the two statutory offenses in question there be separately prosecuted and cumulatively punished even though based on a single act or factual event. Blockburger does not provide a constitutionally binding test for determining when an offense is a lesser included offense of another and therefore the “same offense” for double jeopardy purposes. Therefore, Blockburger should be used if it helps to determine legislative intent and discarded when it does not or where the intent is already clear. It has never been held authoritatively that double jeopardy prohibits cumulative prosecution and punishment of two or more separate statutory offenses merely because a single act or factual event provides the basis for proving both or all of the offenses. If the legislative authority intends separate prosecutions and punishments in such instances, they are permissible. See, e.g., Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); Harris v. United States, 359 U.S. 19, 79 S.Ct. 560, 3 L.Ed.2d 597 (1959); Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958).

Section 775.021(4), set out in footnote 3 above, mandates separate prosecutions and punishments whenever an act or group or series of acts violates more than one statutory provision. The statute contains an exception for “lesser included offenses.” The purpose of the legislature in enacting the exception was to negate any intention of allowing, in a prosecution of an offense based on a single act or factual event, prosecution and punishment for another statutory offense constituting a less serious verdict alternative. See Bell v. State, 437 So.2d 1057 (Fla.1983). Thus, the exception in section 775.021(4) expressed the commonly understood notion that, for example, one who is alleged to have committed battery with a weapon will not be punished, tried, or charged cumulatively for both aggravated battery and simple battery. On such a charge of aggravated battery, the jury has the option of finding that no weapon was used in the battery and accordingly returning a verdict of simple battery. See Brown v. State, 206 So.2d 377 (Fla.1968). Thus the exception in section 775.021(4) referred to a well-understood legal concept and was not intended to preclude separate prosecution and punishment of separate statutory crimes arising in the same course of events or from a single act.

In Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), the offender was convicted of first-degree robbery and “armed criminal action” based on a single episode of armed robbery. The applicable state law defined first-degree robbery as the felonious taking of property from the person or in the presence of another (the owner or custodian) against such person’s will, by violence or by putting in fear of immediate injury. The offense of armed criminal action was defined as the commission of any felony through the use, assistance or aid of a dangerous or deadly weapon. The appellant argued that the cumulative application of both statutes to his act, resulting in separate prosecution and punishment, violated the double jeopardy clause. The United States Supreme Court noted that the Missouri Supreme Court had determined that the state legislature intended such cumulative prosecution and punishment. The state court had also concluded that the two statutory offenses' were the same under the Blockburger test. Nevertheless, the United States Supreme Court held the separate prosecutions and punishments permissible under the double jeopardy clause.

Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the “same” conduct under Blockburger, a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.

103 S.Ct. at 679.

The situation in Missouri v. Hunter is closely similar to the situation in the present case. If the prohibition against double jeopardy was no bar to separate prosecution and punishment for the two statutory offenses there, then it is clearly no bar here. Because double jeopardy permits it and the legislature clearly intends it, we hold separate prosecution and punishment are proper, and, as far as the double jeopardy argument is concerned, we would so hold even if the Blockburger test were not satisfied. See State v. Cantrell, 417 So.2d 260 (Fla.1982).

The decision of the district court of appeal, reversing the respondents’ convictions for use or display of a firearm during the commission of a felony, is quashed and the case is remanded with instructions to affirm the convictions of that offense. The respondents’ argument of district court error on a separate issue is without merit and the district court decision is approved as to that point.

It is so ordered.

ALDERMAN, C.J., and McDONALD, EHRLICH and SHAW, JJ., concur.

ADKINS and OVERTON, JJ., dissent.

      . The district court of appeal once described the second offense as “possession" of a firearm while committing a felony, then later said that the offense was "possession and display," 403 So.2d at 1020, under section 790.07, Florida Statutes (1977). The relevant paragraph of section 790.07, paragraph (2), proscribes two distinct offenses, which are: (1) use, display, or attempt or threat to use a firearm while committing a felony and (2) carrying a concealed firearm while committing a felony. The parties have not brought the record before us in this proceeding so that we can determine with certainty which offense the respondents were charged with and convicted of. Our February 17, 1983 decision was made on the assumption that “use or display," etc., is the offense in question. Neither party questioned this factual matter by petition for rehearing. We therefore continue to proceed on that assumption.

      . State v. Pinder was decided on the authority of Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), and, more particularly, Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977). In Harris v. Oklahoma, the defendant was convicted of murder for a felony murder that occurred in the course of a robbery. Subsequent to the prosecution and conviction for felony murder, petitioner was again brought to trial for armed robbery, the underlying felony of the previously tried felony murder. The Court held: “When, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after con-fiction of the greater one." 433 U.S. at 682, 97 S.Ct. at 2912 (footnote omitted). In Pinder, this Court extended the holding of Harris, quite logically and in keeping with our understanding of the double jeopardy clause, to the situation where both felony murder and the underlying felony are prosecuted in a single proceeding. Subsequent authorities indicate that that extension was mistaken. Although respected legal authority holds the quite logical view that if a statutory offense can be separately prosecuted with another offense in a single trial, there is no reason not to allow such separate prosecution in a subsequent trial, e.g., Baker v. State, 425 So.2d 36, 41 n. 1 (Fla. 5th DCA 1982) (Cowart, J., dissenting), the United States Supreme Court has indicated that there are constitutional reasons for distinguishing the two situations. Compare Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983) with Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977). The distinguishing factor may have to do with the vexatious and oppressive nature of successive prosecutions of separate statutory offenses having the same constituent statutory elements and based on the same act or factual event. See generally North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

      . Section 775.021(4), provides as follows:
      (4) Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offdnse, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.

      . As was stated above in footnote 1, section 790.07(2) also proscribes the discrete offense of carrying a concealed firearm while committing or attempting to commit a felony. We have concluded that this latter offense is not involved in this case.

      . In State v. Monroe, 406 So.2d 1115 (Fia.1981), the same two statutes were involved but the lesser offense was referred to as “unlawful possession of a firearm while committing a felony.” It was not made clear whether that description of the offense silently encompassed the element of concealment. See footnotes 1 and 3 above. This distinction between the two offenses defined in section 790.07(2) might make a difference under the Blockburger rule. State v. Monroe was disapproved to the extent of inconsistency in Bell v. State, 437 So.2d 1057 (Fla.1983).

      . The recent amendment of section 775.021(4), however, has specifically adopted the Blockbur-ger rule as the test for determining whether statutory offenses with common constituent elements are separate offenses or "the same offense.” Ch. 83-156, Laws of Fla. Arguably, this will have the effect of ratifying judicial construction holding, for example, that felony murder and the underlying felony are "the same offense” by reason of the elements of the underlying felony being wholly included among the elements of the felony murder. See State v. Hegstrom, 401 So.2d 1343 (Fla.1981); State v. Binder, 375 So.2d 836 (Fla.1979).

      . In State v. Hegstrom, 401 So.2d 1343 (Fla.1981), this Court receded from State v. Finder and held that double jeopardy did not preclude separate prosecutions, in a single-trial setting, of both felony murder and the underlying felony. We relied on the intervening decisions of Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981), and Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), as holding that the question was purely one of legislative intent. However, we went on to find that the exception of "lesser included offenses" in section 775.021(4) operated to prevent a separate sentence for the underlying felony because it was found to be a necessarily lesser included offense of the crime of felony murder. In Bell v. State, 437 So.2d 1057 (Fla.1983), however, we held that a "lesser included offense” is a verdict alternative and not a separate offense for which a separate prosecution may be undertaken and a separate conviction imposed. We thus remedied the problem of section 775.021(4) and the double jeopardy clause being “at cross-purposes." Bell v. State, 411 So.2d 319, 322 n. 3 (Fla. 5th DCA 1982) (Cowart, J., dissenting). Under this Court’s decision in Bell, where a statutory offense offers a less serious verdict alternative to the offense charged, the legislative intent is construed not to allow separate, cumulative prosecution of the lesser offense with the greater. Of course, without separate convictions it naturally follows that there will be no separate punishments.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Sam NUCCIO, Respondent.
    No. 63235.
    Supreme Court of Florida.
    June 21, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Louis Thaler, Bar Counsel, Miami, for complainant.
    Harry M. Solomon of Joel Hirschhorn, P.A., Miami, and Raymond R. Pines, Tampa, for respondent.
   PER CURIAM.

Upon a complaint by The Florida Bar this Court appointed a referee to conduct a hearing regarding Nuccio’s alleged misconduct. Nuccio tendered a conditional guilty plea for consent judgment, acknowledging his violation of Disciplinary Rule 1-102(A)(6). The referee recommended that Nuccio be found guilty in accordance with his conditional plea and that he be given a public reprimand.

Neither side contests the referee’s report which we hereby adopt. Publication of this opinion in Southern Reporter will serve as the public reprimand.

Costs in the amount of $658.92 are hereby taxed against Nuccio.

It is so ordered.

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

       We feel it unnecessary to publish the full text of the plea. The Court file is open for inspection.


text:
    Gene A. MOORE, Petitioner, v. STATE of Florida, Respondent.
    No. 63315.
    Supreme Court of Florida.
    June 21, 1984.

      Richard L. Jorandby, Public Defender and Louis G. Carres, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen. and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for respondent.
   BOYD, Justice.

We have for review a decision of a district court of appeal, State v. Moore, 424 So.2d 920 (Fla. 4th DCA 1982). The decision expressly and directly conflicts with decisions of this Court and other district courts of appeal on the question of the use of a witness’s prior inconsistent statements as substantive evidence of the defendant’s guilt in a criminal case. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. Because this Court’s earlier decisions prohibiting the use of prior inconsistent statements as substantive evidence have been superseded by legislative action, we recede from those earlier holdings and approve the decision below.

Petitioner Gene Moore was indicted for first-degree murder. The state obtained statements from four witnesses present at the crime, two of whom testified before the grand jury. Later, after all four witnesses recanted their prior statements, petitioner filed a motion to dismiss on the ground that the state would be unable to make out a prima facie case against him. The state agreed that under existing Florida case law prior inconsistent statements could not be used as substantive evidence and that the indictment should therefore be dismissed, but stated that it would appeal as to the use of the prior sworn grand jury testimony as substantive evidence.

On appeal the district court reversed, holding that the use of prior inconsistent statements as substantive evidence is now authorized by the Florida Evidence Code, which took effect on July 1, 1979. Section 90.801(2)(a), Florida Statutes (1981), provides:

(2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is:
(a) Inconsistent with his testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition.

The district court construed this provision to authorize the use of grand jury testimony of a witness as substantive evidence of guilt and not just for impeachment purposes. 424 So.2d at 921-22.

In this appeal petitioner does not challenge the district court’s holding that prior inconsistent statements can be used as substantive evidence, but rather argues that such statements can only be used if they were given at a trial, hearing, deposition, or other proceeding in which the de-clarant was subject to cross-examination. Additionally, petitioner argues that the district court erred in denying his motion to dismiss the appeal on the grounds that the state had failed to properly preserve the issue for appeal by acquiescing in the trial court’s dismissal of the indictment. We find this latter argument to be without merit. The record shows that the state raised the question of admissibility of the statements as substantive evidence and advised the court that it believed prior inconsistent statements could be used as substantive evidence and would appeal on that ground. Therefore we believe the state sufficiently raised and preserved the issue argued on appeal.

The district court found support for its construction in the legislative history of the Florida Evidence Code. The Florida Law Revision Council, which drafted the Code pursuant to legislative authority and in turn recommended it for adoption by the legislature, wrote extensive commentaries on the intent and purposes supporting the various provisions. The Law Revision Council’s note to section 90.801(2)(a) explained as follows:

Paragraph (a) This paragraph excludes from the definition of hearsay certain out-of-court statements by a witness who testifies at the trial or hearing and is subject to cross-examination. Since the declarant is in court and may be cross-examined in regard to the statement, the dangers inherent in hearsay testimony are minimized. See 5 Wig-more, Evidence §§ 1361-1362 (3rd ed. 1940). The prior statement may be used as substantive evidence. It is unrealistic to believe that a jury properly discriminates when told to accept certain evidence as bearing only on the credibility of the witness. The prior statement may be more reliable than the present testimony.

Law Revision Council Note-1976, 6C Fla. StatAnn. 236, 238 (1979) (emphasis added). This commentary from the framers of the evidence code is highly persuasive on the question of whether the legislature intended to allow the use of prior sworn statements of witnesses as substantive evidence. Accordingly, we approve the district court’s holding that the use of such statements as substantive evidence was intended.

As was stated above, however, petitioner argues that section 90.801(2)(a) excludes from the definition of hearsay only statements made in proceedings where the witness was subject to cross-examination. Relying on the principle of ejusdem generis, petitioner points out that under the statute the statement must have been given “subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition.” All of the proceedings specifically mentioned entail the right of cross-examination; testimony before a grand jury is not subject to cross-examination by the accused.

We disagree with petitioner’s conclusion. The Law Revision Council notes indicate that section 90.801(2)(a) was inspired in part by Federal Rule of Evidence 801(d)(1), which requires the statement to have been given under oath, subject to the penalty of perjury, at a trial, hearing, or deposition. As is indicated below, Rule 801(d)(1) has been interpreted as including statements given under oath before a grand jury. Because section 90.801(2)(a) was patterned after Federal Rule of Evidence 801(d)(1), we should construe the former in accordance with federal court decisions interpreting the latter. See, e.g., Hightower v. Bigoney, 156 So.2d 501 (Fla.1963).

The use of prior inconsistent statements as substantive evidence was held by the United States Supreme Court not to be in violation of the confrontation clause of the sixth amendment in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). In response to that decision Congress enacted Federal Rule of Evidence 801(d)(1)(A) which uses language identical to that in section 90.801(2)(a). The federal courts have found that Congress in adopting this rule specifically intended to authorize the use of inconsistent statements given in a grand jury proceeding as substantive evidence.

The version of Rule 801(d)(1)(A) that was eventually adopted resulted from the efforts of a joint House and Senate committee. In its report, the joint committee stated that “[t]he rule,as adopted covers statements before a'grand jury.”
We think it clear that the admission, as substantive evidence, of grand jury testimony that meets the requirements of Rule 801(d)(1)(A) does not run afoul of the Constitution. The Rule was expressly formulated to allow admission of grand jury testimony, and this court and others have held that grand jury testimony admitted under the Rule may properly be considered as substantive evidence of guilt.

United States v. Distler, 671 F.2d 954, 959 (6th Cir.), cert. denied, 454 U.S. 827, 102 S.Ct. 118, 70 L.Ed.2d 102 (1981). See also United States v. Dennis, 625 F.2d 782 (8th Cir.1980); United States v. Woods, 613 F.2d 629 (6th Cir.), cert. denied, 446 U.S. 920, 100 S.Ct. 1856, 64 L.Ed.2d 675 (1980); United States v. Coran, 589 F.2d 70 (1st Cir.1978); United States v. Champion International Corp., 557 F.2d 1270 (9th Cir.), cert. denied, 434 U.S. 938, 98 S.Ct. 428, 54 L.Ed.2d 298 (1977); United States v. Mosley, 555 F.2d 191 (8th Cir.), cert. denied, 434 U.S. 851, 98 S.Ct. 163, 54 L.Ed.2d 120 (1977).

We therefore hold that under section 90.801(2)(a), Florida Statutes (1981), the prior inconsistent statement of a witness at a criminal trial, if given under oath before a grand jury, is excluded from the definition of hearsay and may be admitted into evidence not only for impeachment purposes but also as substantive evidence on material issues of fact. We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence. Section 90.801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination.

We approve the decision of the district court of appeal.

It is so ordered.

ALDERMAN, C.J., and ADKINS, OV-ERTON, McDonald, EHRLICH and SHAW, JJ., concur.


author: EHRLICH, Justice.

text:
    STATE of Florida, Petitioner, v. Charles Albert LEVIN, Respondent.
    No. 64291.
    Supreme Court of Florida.
    June 21, 1984.

      Jim Smith, Atty. Gen. and Michael J. Neimand, Asst. Atty. Gen., Miami, for petitioner.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for respondent.
   EHRLICH, Justice.

We accepted jurisdiction in this case, Levin v. State, 449 So.2d 288 (Fla. 3d DCA 1983), because the district court acknowledged direct and express conflict with the decision of another district court of appeal, Boal v. State, 368 So.2d 71 (Fla. 2d DCA 1979). Art. V, § 3(b)(3), Fla. Const.

For the reasons set forth in the opinion of the Third District Court of Appeal, which we herein adopt as our own, we approve the decision in Levin and accordingly disapprove Boat.

It is so ordered.

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


text:
    FLORIDA POWER & LIGHT COMPANY, Petitioner, v. Emery F. HOGUE, Respondent.
    No. 64486.
    Supreme Court of Florida.
    June 21, 1984.
    Marjorie Gadarian Graham of Jones & Foster, West Palm Beach, for petitioner.
    Steven P. Cullen of the Law Offices of Hoadley & Gavigan, West Palm Beach, for respondent.
   PER CURIAM.

Approved. Travelers Insurance Co. v. Bruns, 443 So.2d 959 (Fla.1984).

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

McDONALD, J., dissents.


text:
    THE FLORIDA BAR, Complainant, v. James Vincent DOLAN, Respondent.
    No. 65059.
    Supreme Court of Florida.
    June 21, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Michael D. Powell, Bar Counsel, Fort Lauderdale, for complainant.
    Burton Young and Laura S. Rotstein of Young, Stern & Tannenbaum, North Miami Beach, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline to violations of Rule 11.02(3)(a), article XI, of the Integration Rule and Disciplinary Rules 1-102(A)(1), (5) and (6) of the Code of Professional Responsibility of the Florida Bar. We approve the Petition, and Respondent, James Vincent Dolan, is hereby suspended from the practice of law for ninety (90) days effective July 23, 1984, thereby giving respondent thirty (30) days to close out his practice and take the necessary steps to protect his clients and respondent shall not accept any new business.

Costs in the amount of $284.04 are hereby taxed against the Respondent.

It is so ordered.

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


author: OVERTON, Justice.

text:
    Harrel F. BOLDEN, Petitioner, v. W.L. POTTER, Respondent.
    No. 62461.
    Supreme Court of Florida.
    June 28, 1984.

      Guyte P. McCord, III, and Gregory D. Smith of Macfarlane, Ferguson, Allison & Kelly, Tallahassee, for petitioner.
    Gary M. Ketchum and James C. Conner, Jr., Tallahassee, for respondent.
   OVERTON, Justice.

This is a petition to review Potter v. Bolden, 416 So.2d 6 (Fla. 1st DCA 1982), an election fraud case, in which the trial court found that the buying of absentee-ballot votes was so pervasive that it tainted the entire absentee-voting procedure in a Liberty County School Board election. The district court of appeal reversed on the ground that the trial court did not make a specific finding of invalidity of a sufficient number of ballots to change the result of the election. We find conflict with our decision in Boardman v. Esteva, 323 So.2d 259 (Fla.1975), cert. denied, 425 U.S. 967, 96 S.Ct. 2162, 48 L.Ed.2d 791 (1976). We quash the district court decision and direct that the trial court judgment be reinstated.

The following are the relevant facts. Harrel F. Bolden and W.L. Potter were opposing candidates in a 1978 election for the Liberty County School Board. In the election Bolden received 18 votes more than Potter in the voting machine count. There were 361 absentee ballots cast in the election, from which Potter received 239 votes and Bolden, the winner on the machine ballots, received only 122 votes. As a result, Potter won the election by 99 votes. Bolden then proceeded to bring this suit contesting the election pursuant to section 102.168, Florida Statutes (1977). At the trial Bolden presented approximately 75 witnesses who testified about corrupt election practices including the sale of votes. The record reflects that 46 electors admitted that their ballots had been bought and that 70 additional ballots were witnessed by the same persons who had witnessed the bought ballots and conducted the organized vote-buying operation. In addition, 10 other ballots were witnessed by individuals who had no contact with the respective voters and no independent knowledge of such voters or the nature of their signatures. The individual candidates were not charged with being personally responsible for the fraudulent practices and there was no evidence suggesting that they were involved. The trial court expressly found, however, that “the witnesses painted a picture of promiscuous vote buying and other conduct on the part of certain individuals indicating intentional wrongdoing and gross negligence, all of which adversely affected the integrity of the election.” Concluding that “the fraud and illegal activities ... were so conspicuously corrupt and pervasive that it has tainted the entire absentee voting procedure in this election,” the trial court invalidated all of the absentee votes.

The district court of appeal reversed, stating that the trial court specifically found only 47 absentee ballots invalid, the 46 bought ballots and a ballot marked by a mother for her son in the armed forces, and therefore, there was no justification for disenfranchising the voters who cast the other 314 absentee ballots. The court concluded that “before all absentee ballots cast in a^single-county election may be declared invalid, there must be a specific finding of invalidity as to a sufficient number of ballots more than enough to change the result of the election.” 416 So.2d at 8. We disagree.

We reiterate our previous statement that courts must not interfere with an election process when the will of the people is unaffected by the wrongful conduct. See Boardman; Gilligan v. Special Road & Bridge District, 74 Fla. 320, 77 So. 84 (1917). However, when there is present fraud and intentional wrongdoing, .which clearly affect the sanctity of the ballot and the integrity of the election process, courts must not be reluctant to invalidate those elections to ensure public credibility in the electoral process.

This Court, in Justice Adkins’ majority opinion in Boardman, summarized the law to be applied in resolving election disputes. In determining whether an election should be set aside because of alleged fraudulent conduct or non-compliance with election procedures, we set forth the following factors for consideration:

(a)the presence or absence of fraud, gross negligence, or intentional wrongdoing;
(b) whether there has been substantial compliance with the essential requirements of the absentee voting law; and
(c) whether the irregularities complained of adversely affect the sanctity of the ballot and the integrity of the election.

323 So.2d at 269. Upon application of these factors to the circumstances in Boardman it was established that (a) there was no fraud or intentional wrongdoing; (b) there was substantial compliance with the statutory absentee voting requirements; and (c) the irregularities did not affect the sanctity of the ballot or the integrity of the election. We emphasized in that decision that there was no allegation or suggestion of fraud, corruption, or any type of intentional misconduct on the part of any person involved with the election. We held that a fair election is the .paramount consideration. We further held that strict application of tephnical procedural requirements is not mandated where there has been substantial compliance with the requirements and there was no interference with the sanctity or integrity of the ballot. To have held otherwise under the circumstances presented in that case would have effectively and unnecessarily disenfranchised voters.

The district court in the instant case applied the Boardman test and concluded that, if the number of absentee ballots conclusively shown to have been bought is not sufficient to change the result of the election, then the evidence is also insufficient to support the conclusion that the fraudulent, corrupt conduct was such that- it permeated the entire absentee election process. We disagree with this conclusion. Under the district court’s interpretation, vote-buying fraud, except in the closest of contests, could never be established so as to invalidate an election. The burden of establishing with certainty that a specific number of ballots were tainted so as to affect the outcome of the election would be too great. Such a restrictive holding would encourage fraud and corruption in the election process, though the will of the electorate must be protected, so must the sanctity of the ballot and the integrity of the election. Courts cannot ignore fraudulent conduct which is purposefully done to foul the election or corrupt the ballot. See Wilson v. Revels, 61 So.2d 491 (Fla.1952). In our view, fraud and corruption may permeate the entire absentee balloting process, regardless of whether the number of ballots conclusively shown to be invalid would change the outcome of the election. Once substantial fraud or corruption has been established to the extent that it permeated the election process, it is unnecessary to demonstrate with mathematical certainty that the number of fraudulently cast ballots actually affected the outcome of the election. Al-

We also reject the district court’s implication that the burden of proof, with regard to fraud or corruption, is dependent upon the status of the offender. It makes no difference whether the fraud is committed by candidates, election officials, or third parties. The evil to be avoided is the same, irrespective of the source. As long as the fraud, from whatever source, is such that the true result of the election cannot be ascertained with reasonable certainty, the ballots affected should be invalidated.

The record clearly supports the trial judge’s finding that the conduct was “so conspicuously corrupt and pervasive that it ... tainted the entire absentee voting procedure in this election.” Liberty County, with 4,260 residents, is the smallest county in the state in terms of population. The evidence in this case established such extensive vote-buying that over thirty percent of the absentee ballots could be said to be tainted (126 out of 381). Seldom is there a more obvious case of pervasive corruption where over ten percent of the absentee voters admit that their votes were bought (46 out of 381).

Applying the Boardman test in the instant case, we find: (a) there was clear fraud and intentional wrongdoing; (b) the officials substantially complied with the voting procedures; and (c) there is no question but that the vote-buying scheme adversely affected the sanctity of the ballot and the public’s perception of the integrity of this election. When substantial fraudulent vote-buying practices are clearly shown to have been involved, the election must be declared void. Failure to do so will cause the electorate to lose confidence in the electoral process, destroy the willingness of individuals to participate, and thereby allow our government to be controlled by corrupt influences. The fraud in this instance was not inconsequential. It was blatant and corrupt and it permeated a substantial part of this absentee-election process. To require evidence which would establish with mathematical certainty the specific number of invalid votes sufficient to change the result of an election would make the task of setting aside an election because of intentional fraud or corruption virtually impossible, particularly in metropolitan areas.

For the reasons expressed, we quash the decision of the district court of appeal. This cause is remanded to the district court of appeal with instructions to reinstate the judgment of the trial court.

It is so ordered.

ADKINS, McDonald and SHAW, JJ., concur.

ALDERMAN, C.J., and BOYD and EHRLICH, JJ., dissent.

      . We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

      . United States Bureau of the Census (1980).


text:
    PUBLIC EMPLOYEES RELATIONS COMMISSION, Petitioner, v. SOUTHEAST VOLUSIA HOSPITAL DISTRICT, Respondent.
    No. 63705.
    Supreme Court of Florida.
    June 28, 1984.
    Jerry W. Cheatham, Counsel, Tallahassee, petitioner for Public Employees Relations Com’n.
    Joseph Egan, Jr. and Tobe Lev of Egan, Williams & Lev, Orlando, petitioner for Nat. Union of Hosp. Health Care Employees.
    William E. Sizemore of Thompson, Size-more & Gonzalez, Tampa, for respondent.
   OVERTON, Justice.

We accepted jurisdiction in this case on the basis of conflict between the district court’s decision, cited as Southeast Volusia Hospital District v. National Union of Hospital and Health Care Employees, 429 So.2d 1232 (Fla. 5th DCA 1983), and the decisions in Pan American World Airways, Inc. v. Florida Public Service Commission, 427 So.2d 716 (Fla.1983); City of Miami Beach v. 8701 Collins Avenue, Inc., 77 So.2d 428 (Fla.1954); Grady v. Department of Professional Regulation, 402 So.2d 438 (Fla. 3d DCA), petition dismissed, 411 So.2d 382 (Fla.1981); and City of Jacksonville v. Jacksonville Association of Firefighters, 365 So.2d 1098 (Fla. 1st DCA 1979). After receiving briefs on the merits and hearing oral argument, we conclude that no conflict was created by the district court’s decision.

For the reasons expressed, we dismiss this case for lack of jurisdiction.

It is so ordered.

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

EHRLICH, J., dissents.


text:
    WATSON REALTY CORPORATION, a Florida corporation; Terri Murphy; Claude B. McCranie, Jr.; Delores McCranie, Petitioners, v. Thomas F. QUINN and Nancy A. Quinn, his wife, Respondents.
    No. 64191.
    Supreme Court of Florida.
    June 28, 1984.

      Robert F. Spohrer and Norwood S. Wil-ner, Jacksonville, for petitioners.
    Simon D. Rothstein of Adams, Rothstein & Siegel, Jacksonville, for respondents.
   PER CURIAM.

Petitioners seek review of Watson Realty Corp. v. Quinn, 435 So.2d 950 (Fla. 1st DCA 1983) on the ground of conflict with Canal Authority v. Ocala Manufacturing, Ice and Packing Co., 332 So.2d 321 (Fla.1976). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

This case presents a question of law as to whether, in an action for fraud, the required standard of proof is the “greater weight” of the evidence or “clear and convincing” evidence. The district court held that the standard was the greater weight, distinguishing language to the contrary in Canal Authority as obiter dicta. We agree. The correct statement of the law is in Rigot v. Bucci, 245 So.2d 51 (Fla.1971), where we explicitly addressed this question and receded from earlier case law holding that clear and convincing evidence was the correct standard. Blaeser Development Corp. v. First Federal Savings and Loan Association, 375 So.2d 1118 (Fla. 4th DCA 1979). We accept jurisdiction in order to recede from the obiter dicta in Canal Authority.

The decision of the district court is approved.

It is so ordered.

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


author: NESBITT, Judge.

text:
    EASTERN AIR LINES, INC., Frank Borman, Thomas R. Buttion and William G. Bell, Petitioners, v. Daniel G. GELLERT, et al., Respondents.
    No. 83-795.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1984.
    Thornton, David & Murray and Carolyn Pickard and Barry L. Davis, Miami, for petitioners.
    Stromire, Westman, Lintz, Baugh, McKinley & Antoon and Robert Westman, Cocoa, for respondents.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   NESBITT, Judge.

Petitioners seek a writ of common law certiorari to review the trial court’s denial of their motion to compel production of a deposition and exhibit and its granting of the respondent’s cross-motion for a protective order. We grant certiorari and quash the orders under review.

Gellert and Eastern Air Lines are embroiled in an action and counterclaim for defamation. 438 So.2d 923. During the course of preparation for trial, Gellert took the deposition of the attorney who represented his former wife in dissolution of marriage proceedings. On direct examination, several questions were propounded and answered concerning a letter which was identified as one written in the course of a grievance procedure initiated by Gel-lert against the attorney being deposed. However, on cross-examination, the attorney refused to answer any further questions regarding the letter and also retrieved the document which had previously been marked as an exhibit. The basis for this action, according to the attorney, was that the document was privileged because it was part of a grievance proceeding conducted by the Florida Bar and as such he claimed privilege under Florida Bar Integration Rule, article 11, rule 11.12. When the deposition was transcribed, the exhibit and relevant portions of the transcript were omitted.

Subsequently, Eastern filed a motion to compel the production of the complete deposition and the attorney sought a protective order. The protective order was granted precipitating Eastern’s petition for certiora-ri.

We admit that the record before us is scant. However, it is clear that the letter contained a bar grievance number and both sides concede that some type of grievance proceeding had been instituted by Gellert against the attorney. It is also evident that Gellert, who was the complaining witness against the attorney, has waived any privilege of confidentiality which might have existed by introducing the letter and propounding questions to the wife’s attorney about it. The attorney who was the alleged subject of the grievance proceeding has waived any possible privilege in his favor by answering questions about the letter on direct examination. Once a waiver of a privilege has occurred, it cannot be recanted. Therefore, we have little difficulty concluding that a waiver has occurred by the two parties in interest.

While we recognize that an argument may be made that our ruling today will have a chilling effect upon others who might want to bring their grievances before the bar, we conclude that this concern is minimal where both of the interested parties have waived any right they may have had to confidentiality. Nonetheless, because this issue presents a question of public importance, we certify the following question to the Supreme Court for resolution:

Where the principal parties (complainant and offending attorney) have waived any right which they may have had to confidentiality, does Integration Rule, article II, rule 11.12 provide any residual prohibition against a waiver?

Based on the foregoing, we grant the petition for certiorari and quash the orders under review with directions to compel the production of the deposition and exhibit.


text:
    Elias ASKENAZI, Elvira Askenazi, Salomon Askenazi and Teresa Askenazi, Appellants, v. SNW CORP., PNW Corp., and KNW Corp., all Florida corporations, Appellees. Jose BETTECH and Esther Bettech, his wife, and Nisim Bettech and Gloria Bettech, his wife, Appellants, v. SNW CORP., PNW Corp. and KNW Corp., all Florida corporations, Appellees. Ruben MICHANIE and Ruth H. de Michanie, Appellants, v. SNW CORP., PNW Corp., and KNW Corp., all Florida corporations, and Ruben Michanie Bagdadi and Reyna M. DeHanono, Appellees.
    Nos. 83-91, 83-855 and 83-1554.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 1984.
    Rehearing Denied Aug. 3, 1984.
    William S. Weisman of Gilbride, Heller & Brown, Miami, for appellants.
    Myron H. Burnstein of Burnstein & Knee, Hollywood, for appellees.
   PER CURIAM.

AFFIRMED. See Mosher v. Southridge Associates, Inc., 552 F.Supp. 1226, 1228 (W.D.Pa.1982).

GLICKSTEIN, HURLEY and DELL, JJ., concur.


author: JORGENSON, Judge.

text:
    The MIAMI HERALD PUBLISHING COMPANY, A DIVISION OF KNIGHT-RIDDER NEWSPAPERS, INC., a Florida corporation, Appellant, v. CITY OF NORTH MIAMI, a municipal corporation of the State of Florida; Tobias Simon, as City Attorney for the City of North Miami; Mayor Howard Neu, James Devaney, John Hagerty, Robert Lippelman, and Diane Brannen, as members of the City Council of the City of North Miami, Appellees.
    No. 83-688.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1984.
    Richard J. Ovelmen, Thomson Zeder Bohrer Werth Adorno & Razook, Miami, and Susan H. Aprill, Coral Gables, for appellant.
    Simon, Schindler & Hurst and Thomas M. Pflaum, Miami, for appellees.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   JORGENSON, Judge.

The question presented by this appeal is whether the Florida Evidence Code exempts from disclosure pursuant to the Public Records Act, chapter 119, Florida Statutes (1981), certain written communications between the City of North Miami and its city attorney. This is the second appearance of this case before this court. In the first appeal, Miami Herald Publishing Co. v. City of North Miami, 420 So.2d 653 (Fla. 3d DCA 1982), we considered the order of the trial court which, upon a holding that the lawyer-client privilege exempted the records in question, denied the Herald’s petition for a writ of mandamus. We vacated the order and remanded with directions to examine in camera the records in question to determine which, if any, were actually privileged communications. Following its in camera examination of the records the trial court held that certain written communications pertinent to litigation presently pending in separate suits between North Miami and other parties were privileged under section 90.502, Florida Statutes (1981), the lawyer-client privilege section of the Evidence Code and, therefore, exempt from disclosure pursuant to the Public Records Act. We find, contrary to the trial court’s holding, that they are not exempt and, accordingly, reverse with directions to issue the writ of mandamus.

Only public records provided by statute to be confidential or which are expressly exempted by general or special law from disclosure under the Public Records Act are exempt. Wait v. Florida Power & Light Co., 372 So.2d 420 (Fla.1979); see § 119.07(3)(a), Fla.Stat. (1981). It is true that the Evidence Code makes “confidential” certain communications between a lawyer and client, see § 90.502(l)(c), Fla. Stat. (1981), and gives to a client the privilege of refusing to disclose or allowing any other person to disclose these communications, see § 90.502(2), Fla.Stat. (1981). This provision of the Evidence Code is limited in its scope, however, to certain proceedings defined by the Florida Supreme Court as follows: “(1) criminal proceedings related to crimes committed on or after July 1, 1979; (2) civil actions accruing after July 1, 1979; and (3) other proceedings brought after July 1, 1979,” In re Florida Evidence Code, 376 So.2d 1161, 1162 (Fla.1979); see also § 90.103(1), Fla.Stat. (1981) (wherein the Evidence Code provides that “[ujnless otherwise provided by statute, this code applies to the same proceedings that the general law of evidence applied to before the effective date of this code”); Black’s Law Dictionary 499 (rev. 5th ed. 1979) (defining “evidence codes” as “[statutory provisions governing admissibility of evidence and burden of proof at hearings and trials”); Black’s Law Dictionary 500 (rev. 5th ed. 1979) (defining “evidence rules” as “[rjules which govern the admissibility of evidence at hearings and trials”). Although public entities are included in the definition of the term “client” in the lawyer-client privilege section of the Evidence Code, see § 90.502(l)(b), Fla.Stat. (1981), this is merely to ensure that the privileged communications of a public entity will not be admitted into evidence in judicial proceedings.

“It is the policy of this state that all state, county and municipal records shall at all times be open for a personal inspection by any person.” § 119.01(1), Fla.Stat. (1981) (emphasis added). We find no indication that the legislature intended by enactment of the Evidence Code, with its narrowly defined scope, to abrogate this preeminent public policy. See also State of Florida, Department of Highway Safety & Motor Vehicles v. Kropff 445 So.2d 1068 (Fla. 3d DCA 1984) (the scope of section 284.40, Florida Statutes (1981), creates an exemption from the Public Records Act). Compare § 90.103(1), Fla.Stat. (1981) (Evidence Code applies only to admissibility of evidence in judicial proceedings), with § 284.40, Fla.Stat. (1981) (claim files maintained- by the Division of Risk Management are privileged and confidential and are only for usage by the Department of Insurance in fulfilling its duties and responsibilities under this section).

This court has previously held that a meeting between the North Miami city council and the North Miami city attorney was not exempt from the equally preeminent public policy behind Florida’s Sunshine Law, § 286.011, Fla.Stat. (1981). See State ex rel. Reno v. Neu, 434 So.2d 1035 (Fla. 3d DCA 1983). We now hold that the Evidence Code does not exempt from disclosure pursuant to a chapter 119 public records request a lawyer’s written communications with his public-entity client. We agree with and adopt the analysis of Judge Nesbitt who said in Tober v. Sanchez, 417 So.2d 1053 (Fla. 3d DCA 1982), review denied mem., 426 So.2d 27 (Fla.1983),

We would be less than candid if we did not acknowledge that, as the present case demonstrates, public agencies are placed at a disadvantage, compared to private persons, when faced with potential litigation claims. It is also pertinent to observe that the wisdom of such a policy resides exclusively within the province of the legislature,

Id. at 1055; see Wait. If there is to be a lawyer-client privilege exemption from the Public Records Act, the legislature is free to enact such a law. They have not, as yet, chosen to do so.

As we did in Neu, because of the significance of the issue, we certify that this decision passes upon a question of great public importance:

Does the lawyer-client privilege section of the Florida Evidence Code exempt from the disclosure requirements of the Public Records Act written communications between a lawyer and his public-entity client?

Reversed with directions. Question certified.

      . The trial court declined to consider any ground for exemption from the disclosure requirements of the Public Records Act other than that contained in our directions to determine which written communications were privileged. North Miami asserted that section 624.311(3), Florida Statutes (Supp.1982), exempts certain confidential communications. Because the Herald requested the material in question before section 624.311 became effective, it has no effect on this case. Amendments to chapter 624 operate prospectively absent specific legislative intent to the contrary. § 624.21, Fla.Stat. (Supp. 1982). See also Seddon v. Harpster, 403 So.2d 409 (Fla.1981) (in the absence of an express manifestation of legislative intent to the contrary the presumption is against retrospective application of a statute); Dade County School Bd. v. Miami Herald Publishing Co., 443 So.2d 268 (Fla.3d DCA 1983) (same).

      . We note that when the supreme court decided in Wait that no statutory lawyer-client privilege exemption from the Public Records Act existed, the Evidence Code had already been enacted by the legislature three years earlier. The effective date of the Evidence Code was July 1, 1979; rehearing was denied in Wait on June 21, 1979.

      . Over the course of the 1979 through 1983 legislative sessions, the legislature has rejected no less than seven bills that attempted to create a lawyer-client exemption to the Public Records Act.


author: DELL, Judge.

text:
    Herman SHERER, Gerald Sherer, Myron Sherer, Fay Flicker, Marilyn Seiden and Caron Cornett, Appellants, v. RUBIN MEMORIAL CHAPEL, LTD., a Florida limited partnership, and Murray N. Rubin, Appellees.
    No. 83-1538.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 1984.
    Bradley S. Hartman of Litman, Muchnick & Wasserman, Hollywood, for appellants.
    Michael C. Mattson of Conrad, Scherer & James, Fort Lauderdale, for appellees.
   DELL, Judge.

Appellants challenge an order dismissing their amended complaint with prejudice in a case concerning the mishandling of a corpse.

Appellants, relatives of the deceased Beth Sherer, alleged in their complaint that they entrusted the body of the decedent to appellees’ care to provide all funeral services including preparation of her corpse for an open casket service and burial. They further alleged that when they arrived at the funeral home they found another .body dressed in decedent’s burial clothing.

Appellees’ employees allegedly spent one-half hour trying to convince appellants that the body was the decedent. Upon admitting their error, appellees made arrangements to have the decedent’s corpse delivered from storage. Appellees then removed the burial clothing from the wrong corpse and, rather than properly dressing and preparing the decedent’s corpse for the planned open casket service, simply threw the burial clothing over the unprepared corpse leaving numerous ugly bruises on her arms exposed. Appellants filed suit to recover for pain, suffering and mental anguish. On motion to dismiss, appellants’ counsel conceded there was nothing further to allege. Thus the trial court dismissed the amended complaint with prejudice.

Appellants recognize that under present Florida law they cannot recover for pain, suffering and mental anguish absent some impact or physical injury unless they can show willful, wanton or malicious behavior. Gilliam v. Stewart, 291 So.2d 593 (Fla.1974). The courts of Florida have recognized the right to recover for mental pain and anguish where malice can be implied or imputed from an entire want of care or great indifference of others. Therefore, the issue is whether the facts in this case are sufficient to imply or impute malice. See Crane v. Loftin, 70 So.2d 574 (Fla.1954).

Appellants rely on Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950). In Kirksey, an undertaker took the body of a five year old child, killed by accident, from her home in her mother’s absence. The mother went to the undertaker and demanded the release of the body. The undertaker refused, embalmed the body, and would not release the body until the mother paid an excessive fee. The court stated:

[WJhere the wrongful act is such as to reasonably imply malice, or where, from the entire want of care of attention to duty, or great indifference to the persons, property, or rights of others, such malice will be imputed as would justify the assessment of exemplary or punitive damages. See 15 Am.Jur., Damages, Sec. 179, page 596; Restatement of Torts, Section 47(b). The right to recover, in such cases, is especially appropriate to tortious interference with rights involving dead human bodies, where mental anguish to the surviving relatives is not only the natural and probable consequence of the character of wrong committed, but indeed is frequently the only injurious consequence to follow from it.

Id. at 189.

In another case involving the mishandling of a corpse, the court did not find the facts sufficient to imply or impute malice. In Estate of Harper v. Orlando Funeral Home, Inc., 366 So.2d 126 (Fla. 1st DCA 1979), cert. denied, 386 So.2d 637 (Fla.1980), a casket provided by the funeral home began falling apart as the pallbearers carried the body to the grave. The complaint sought recovery for damages under several counts. Although the district court found the result reasonably foreseeable because of the inadequate and defective construction of the coffin, the court apparently found that such conduct did not exceed all bounds reasonably tolerated by society such as to imply malice for the entire want of care or great indifference. Thus the court approved the dismissal of the count requesting damages for mental pain and suffering.

In our view, appellants have alleged sufficient ultimate facts to state a cause of action under the rationale of Kirksey v. Jernigan, supra. Accordingly, we reverse the order dismissing appellants’ amended complaint and remand this cause for further proceedings consistent herewith.

REVERSED AND REMANDED.

DOWNEY and HURLEY, JJ., concur.


author: PER CURIAM. FERGUSON, Judge

text:
    Roslyn WISEBLATT, Appellant, v. A. Carl WISEBLATT, Appellee.
    No. 83-1651.
    District Court of Appeal of Florida, Third District.
    March 20, 1984.
    Rehearing Denied July 17, 1984.

      Pardo & Pardo and Joseph Pardo, Miami, for appellant.
    Jepeway & Jepeway and Louis M. Jepe-way, Jr., Miami, for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

Finding that the husband’s Complaint to Set Aside the Property Settlement Agreement, Dissolution of Marriage Proceedings, Final Judgment Entered Therein and for Annulment of the Marriage was totally meritless, we hold that the trial court erred in failing to award the wife reasonable attorney’s fees for defending the action. Jaffee v. Jaffee, 394 So.2d 443 (Fla. 3d DCA 1981). Accordingly, we reverse and remand for a determination of reasonable attorney’s fees and costs.

Reversed and remanded.

FERGUSON, Judge

(dissenting in part, concurring in part).

The ten-month marriage between the parties was dissolved by a final judgment entered May 19, 1981, which incorporated a property settlement agreement. By terms of the generous agreement, appellant-wife was awarded $200,000 in tax free municipal bonds, one-half interest in and exclusive occupancy of the $150,000 condominium purchased by the husband, and alimony of $100 per month for ten years.

On October 20, 1981, appellee-husband, a 76-year-old retired physician, filed a complaint to set aside the property settlement agreement, dissolution of marriage, final judgment entered therein, and for annulment of the marriage. He alleged in his complaint, later amended, that (1) the agreement was prepared by an attorney who at the time represented both parties and who later became the wife’s attorney, (2) the attorney who purported to represent him was chosen by the wife’s attorney, and (3) the marriage was the product of deception in that the wife was physically incapable of coitus. Appellee’s amended complaint was dismissed with prejudice by order of November 8, 1982; the court reserved jurisdiction to tax costs and assess attorney’s fees. On June 16, 1983, an order was entered, from which this appeal is brought, denying costs and fees on a finding that although appellant is entitled to a reasonable attorney’s fee, “this Court [is]... of the opinion that the [appellant] has the ability to pay her own attorney’s fees.”

Appellant contends that the court abused its discretion in denying an award of fees and costs. The majority reverses. I dissent as to the award of attorney’s fees.

The proper criterion in determining a wife’s entitlement to attorney’s fees is the relative financial resources of the parties, whether in an original proceeding, see Golden v. Golden, 410 So.2d 945 (Fla.3d DCA), rev. denied, 419 So.2d 1197 (Fla.1982) or post-judgment proceeding. Gray v. Gray, 362 So.2d 294 (Fla.2d DCA 1978). Here there is no showing by clear and substantial evidence of appellant’s inability to pay, or appellee’s ability to pay.

Jaffee v. Jaffee, 394 So.2d 443 (Fla.3d DCA 1981) does not support the majority holding. Jaffee involved a twenty-year marriage wherein the husband, who clearly had the ability to pay, sought to reduce an alimony award based on changed circumstances which were contemplated at the time of the original agreement. In Jaffee the court was reviewing the merits of the case and was in a position to conclude that the husband’s claim was totally meritless. In this case the appeal is solely from the denial of costs and fees and on this sparse record the court is entirely unable to say, as the majority does, that the husband’s claim “was totally meritless.”

Additionally, the trial judge in this case was in a better position to know of the parties’ relative financial resources since she had also heard the dissolution action. I dissent because the majority has simply substituted its judgment for that of the trial judge in a matrimonial action, in violation of Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); Conner v. Conner, 439 So.2d 887 (Fla.1983); and Lopez v. Lopez, 438 So.2d 984 (Fla.3d DCA 1983). No abuse of discretion by the trial court is demonstrated. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).


author: SCHWARTZ, Chief Judge.

text:
    Eddie Maude GRIFFIN, Appellant, v. TAUBER-MANON ASSOCIATES, INC., and Arthur Manon, Appellees.
    No. 84-301.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.
    Lanza, Sevier, Womack & O’Connor, Coral Gables, and Ricardo J. Cata, Miami, for appellant.
    Sparber, Shevin, Shap & Heilbronner and Nancy Schleifer, Miami, for appellees.

      Before SCHWARTZ, C.J., and DANIEL S. PEARSON, J., and M. IGNATIUS LESTER, Associate Judge.
   SCHWARTZ, Chief Judge.

On Motion to Dismiss

On November 21, 1983, a final order of dismissal was rendered against the plaintiff-appellant in the trial court. On December 9, beyond the ten day rehearing time provided by Fla.R.Civ.P. 1.530, the plaintiff served a Motion to Set Aside the Order of Dismissal under Fla.R.Civ.P. 1.540(b) on the ground that counsel had not received timely notice of the application for the order or its entry. After hearing, that motion was denied on January 13, 1984, and the plaintiff filed a notice of appeal, purportedly directed to the final order of dismissal, on February 9, 1984.

Upon consideration of the appellees’ present motion to dismiss the appeal, we hold, as Fla.R.Civ.P. 1.540(b) expressly provides, that the December 9 motion did not suspend the finality of the November 21, 1983 dismissal with the result that, since the notice of appeal was filed more than 30 days thereafter, this court lacks jurisdiction to review it. Insofar as Gordon v. Green, 382 So.2d 1344 (Fla. 5th DCA 1980) indicates otherwise, our decision is simply at odds with that one.

Since the notice of appeal was, however, filed within thirty days of the separately-appealable January 13, 1984 order denying the motion for relief under Rule 1.540(b), see Fla.R.App.P. 9.130(a)(5), there is no reason why the notice should not be treated as one which seeks review of that order and we will consequently so consider this appeal. Puga v. Suave Shoe Corp., 417 So.2d 678 (Fla. 3d DCA 1982) (en banc). On that basis alone, the motion to dismiss is denied.

      . "A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation.”

      . The appellees’ reliance on Meyerson v. Texsol, Inc., 385 So.2d 5 (Fla. 3d DCA 1980) is misplaced. In that case, the motion designated as one to set aside a final order was in fact filed within ten days so that it could be, as it was, treated as a timely-filed motion for rehearing with the consequent effect of tolling the time for appeal.

      .It may be noted, notwithstanding that Puga does not require that this be the case, that the notice does make specific reference to the January 13 order, although erroneously designating it as one which finalized the November order of dismissal.


text:
    Benny Lee STEWART, Appellant, v. STATE of Florida, Appellee.
    No. 83-1140.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1984.
    Order Withholding Mandate May 23, 1984.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was charged with and convicted of sexual battery upon a person under eleven years of age. He raises four points on appeal, none of which merits reversal. We do note, however, that the trial court’s sentence of a mandatory thirty years is not a mandatory minimum sentence. Appellant is eligible for parole before his full sentence is served at the discretion of the Parole and Probation Commission.

AFFIRMED.

DOWNEY, BERANEK and HURLEY, JJ., concur.

BY ORDER OF THE COURT:

Pursuant to Jollie v. State, 405 So.2d 418 (Fla.1981), the mandate in this matter shall be withheld pending final disposition of the petition for review filed in the case of State v. Hogan, 451 So.2d 844 (Fla.1984). The case of State v. Hogan is determinative of the same issue raised herein.


text:
    SUN BANK OF MIAMI, et al., Appellants, v. INSURANCE COMPANY OF NORTH AMERICA, et al., Appellees.
    No. 83-2490.
    District Court of Appeal of Florida, Third District.
    April 24, 1984.
    Rehearing Denied July 17, 1984.
    Stanley Jay Bartel, Cleveland & Gerken, Miami, for appellants.
    Welbaum, Zook, Jones & Williams and Betsy L. Warwick, Miami, for appellees.
    Before SCHWARTZ, C.J., DANIEL S. PEARSON, J., and ROBERT C. SCOTT, Associate Judge.
   SCHWARTZ, Chief Judge.

Since the insured of the appellee carrier INA was sued on a claim for which the policy provided liability coverage, we conclude that the plaintiff was a third-party beneficiary of that portion of the policy and that INA was properly joined as a party defendant under the thus-controlling authority of Shingleton v. Bussey, 223 So.2d 713 (Fla.1969) and Beta Eta House Corp., Inc. v. Gregory, 237 So.2d 163 (Fla.1970). On the other hand, while American Empire Ins. Co. of South Dakota v. Fidelity and Deposit Co. of Maryland, 408 F.2d 72 (5th Cir.1969), cert. denied, 396 U.S. 818, 90 S.Ct. 55, 24 L.Ed.2d 69 (1969) and Everhart v. Drake Management, Inc., 627 F.2d 686 (5th Cir.1980), upon which INA relies for a contrary result, involve policies, denominated broker’s blanket bonds, which are generally similar to the one before us, both were exclusively in the nature of fidelity bonds which protected only the insured against its own direct losses. Neither contained a provision such as the one we deem decisive here, inuring to the benefit of a third-party claimant like the present plaintiff. For these reasons, the order below dismissing INA as a party defendant is

Reversed.

      . (E) Loss sustained by the Insured, including loss sustained by reason of liability imposed on the Insured by law ... through having ... purchased or otherwise acquired, accepted or received ... securities ... on which the signature of any person signing ... proves to have been forged, [e.s.]

      . Because the cause of action accrued before October 1, 1982, Sec. 627.7262, Fla.Stat. (Supp. 1982) is inapplicable. VanBibber v. Hartford Accident & Indemnity Ins. Co., 439 So.2d 880 (Fla.1983); Randel v. General Ins. Co., 439 So.2d 986 (Fla. 3d DCA 1983).


author: DANAHY, Judge.

text:
    K.M.A. ASSOCIATES, INC., Appellant, v. George N. MEROS, George S. Coit, Jr., John M. Edman, Peter N. Meros, Walter E. Smith, Dede Meros, Meros, Coit, Edman, Meros & Smith, P.A., Robert Papolos, Stephen Papolos, Albert Papolos and George N. Meros, Jr., Appellees.
    No. 83-2046.
    District Court of Appeal of Florida, Second District.
    April 25, 1984.
    Rehearing Denied June 27, 1984.
    Charles J. Cheves of Cheves & Rapkin, Venice, for appellant.
    John T. Allen, Jr., St. Petersburg, for appellees.
   DANAHY, Judge.

The plaintiff in a suit for equitable relief and damages for legal malpractice appeals from a summary judgment in favor of the defendants. We reverse.

Plaintiff/appellant (K.M.A.) acquired the rights to a time-sharing project known as “Grand Shores West” on the gulf beaches. When financing became a problem and the project appeared to be lost, appel-lees/defendants, including attorney George N. Meros and his law partner, Walter E. Smith, entered into a limited partnership agreement with K.M.A. under which a group of investors put together by Meros acquired a fifty percent interest in the project. Meros was general partner and the limited partners included K.M.A. and the other appellees. Walter E. Smith, law partner of Meros, had represented K.M.A. in its attempts to put the project together, and represented the limited partnership throughout the events which led to this lawsuit.

Meros loaned considerable sums , of money to the partnership and took back for himself twenty percent of K.M.A.’s limited partnership share, thus reducing K.M.A.’s interest to thirty percent. Eventually the entire project fell through and Meros threatened to foreclose mortgages securing the notes representing his loans to the venture. The parties then entered into a withdrawal agreement under which K.M.A. was to receive receivables with a $250,000 face value in full payment for its thirty percent interest. Meros later claimed that K.M.A. had breached the partnership agreement and the withdrawal agreement and there were setoffs which would eliminate K.M. A.’s $250,000 entitlement. The withdrawal agreement contained a release under which Meros as general partner released every limited partner from any obligations arising out of the partnership agreement. Each limited partner then released the general partner and all other limited partners from any obligations under the partnership agreement or otherwise (emphasis added). The upshot of the whole matter, according to K.M.A., is that Meros now owns, possesses or controls all assets of the Grand Shores West venture while K.M.A.’s only memento is a $60,000 bill for legal sérvices from the Meros law firm.

In this action K.M.A.’s complaint is in two counts. The first count seeks to impose a constructive trust on the Grand Shores West property against Meros. The second count is a legal malpractice claim against Meros, Smith and their law firm. K.M.A. demanded a jury trial on both counts. The appellees filed an answer and counterclaim. They asserted an affirmative defense based on the release and also an affirmative defense that K.M.A. was estopped because it had assigned its interest in the withdrawal agreement. That assignment had been mutually rescinded prior to this suit.

In due course the trial judge ordered that the two counts be severed, with the malpractice count set for jury trial and the equitable claim deferred for a later trial without a jury. K.M.A. contends that this was error.

The appellees filed a motion for summary judgment based upon the release and estoppel defenses. The trial judge granted the motion on both grounds. This appeal followed.

In our resolution of the issues raised in this appeal, we turn to an early decision of this court in Smyrna Developers, Inc. v. Bornstein, 177 So.2d 16 (Fla.2d DCA 1965). In that case this court made these pertinent observations:

There is no relationship between individuals which involves a greater degree of trust and confidence than that of attorney and client. The attorney is under a duty at all times to represent his client and handle his client’s affairs with the utmost degree of honesty, forthrightness, loyalty and fidelity. Business transactions between attorney and client are subject to the closest scrutiny. The burden is placed upon an attorney to establish by clear and convincing evidence the fairness of an agreement or transaction purporting to convey a property right from a client to his attorney. If an attorney fails in the performance of these duties he may become personally liable to the client for the loss ensuing from his action whether the failure consists of fraud or negligent performance or failure to perform these duties....
... All doubts regarding the existence of an issue are resolved against the mov-ant and the evidence plus favorable inferences reasonably justified thereby are liberally construed in favor of the opponent to summary judgment.... While business transactions between lawyers and clients are not prohibited, nevertheless they will be meticulously scrutinized when alleged to have been unfair.

(Citation omitted.)

Id. at 18, 19. Accord The Florida Bar v. Simonds, 376 So.2d 853 (Fla.1979); Jordon v. Growney, 416 So.2d 24 (Fla.4th DCA 1982); Abstract & Title Corp. of Florida v. Cochran, 414 So.2d 284 (Fla.4th DCA 1982); Waldeck v. Marks, 328 So.2d 490 (Fla.3d DCA 1976).

As we have noted, the trial judge granted summary judgment to the appel-lees based on the release contained in the withdrawal agreement and on the appel-lees’ theory of quasi-estoppel based on the purported assignment by K.M.A. to a third party of K.M.A.’s interest under the withdrawal agreement — that is, K.M.A.’s entitlement to $250,000. We are of the view that the release is clearly part of the entire transaction which K.M.A. attacks in this proceeding and it was error for the trial judge to grant summary judgment on the basis of that release. We are also of the view that the abortive assignment by K.M.A. of its interest under the withdrawal agreement is not sufficient to estop it from pursuing its causes of action for equitable relief and damages for malpractice. That is too weak a reed to support foreclosing K.M.A. from its day in court.

Having ruled that the trial judge erred in granting a summary judgment to the appellees, we address the question whether the trial judge erred in severing the malpractice count in K.M.A.’s complaint for a jury trial but deferring the equitable count for a later trial without a jury. We believe that the issues involved in the malpractice count are so related to the issues made by the equitable claim that a jury trial should be afforded on all issues. N.J. Willis Corf. v. Raskin, 430 So.2d 996 (Fla.4th DCA 1983); Napolitano v. H.L. Robertson & Associates, Inc., 311 So.2d 757 (Fla.3d DCA 1975); Westview Community Cemetery of Pompano Beach v. Lewis, 293 So.2d 373 (Fla.4th DCA 1974).

Accordingly, we REVERSE and REMAND for further proceedings consistent with this opinion.

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


text:
    William J. PAGE, Jr. and Alfred Campbell, Appellants, v. Gale Glass EZELL and Sheldon Ezell, Appellees.
    No. 83-3034.
    District Court of Appeal of Florida, Third District.
    May 1, 1984.
    Jim Smith, Atty. Gen. and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellants.
    Michael Brodsky, Miami, for appellees.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

The defendants William J. Page and Alfred Campbell appeal from a non-final order entered below denying their motion to dismiss the complaint filed against them. The relevant ground urged below for dismissal of the subject complaint was that the trial court lacked in personam jurisdiction over the defendants because, as state employees/officers, the defendants could not be held personally liable under the doctrine of sovereign immunity for the acts of negligence sued upon, as these acts were discretionary, not ministerial, in nature. Rupp v. Bryant, 417 So.2d 658, 664-65 (Fla.1982). We conclude that we have no jurisdiction to entertain this appeal under Fla.R.App.P. 9.130(a)(3)(C)(i), [adopted pursuant to Art. V, § 4(b)(1), Fla. Const.], and dismiss the appeal for lack of jurisdiction.

Fla.R.App.P. 9.130(a)(3)(C)(i) provides in relevant part: “Review of non-final orders of lower tribunals is limited to those which ... determine ... jurisdiction of the person.” It is settled that the term “jurisdiction of the person,” as used in the above rule, “refers to service of process or the applicability of the long arm statute to non-residents.” National Lake Developments, Inc. v. Lake Tippecanoe Owners Ass’n, 395 So.2d 592, 593 (Fla. 2d DCA 1981), approved, 417 So.2d 655, 656-57 (Fla.1982); see American Health Ass’n v. Helprin, 357 So.2d 204, 205 (Fla. 4th DCA 1978). A non-final order denying a motion to dismiss a complaint on the ground, as here, that the action is barred by the doctrine of sovereign immunity is not appeala-ble under the above rule. State Road Dep’t v. Brill, 171 So.2d 229 (Fla. 1st DCA 1964) (decided under predecessor rule, Fla. R.App.P. 4.2a, containing identical language).

Without dispute, the instant appeal does not involve service of process or long arm statute issues; the individual defendants were all properly served with process below and are all residents of the state of Florida. This being so, we have no jurisdiction to entertain this appeal under Fla.R. App.P. 9.130(a)(3)(C)(i). The ground urged for dismissal of the complaint below has nothing to do with the trial court’s in per-sonam jurisdiction over the individual defendants; it pertains solely to the personal liability of the defendants under the doctrine of sovereign immunity for the alleged negligent acts sued upon.

Appeal dismissed.


author: DOWNEY, Judge.

text:
    Melvin T. GOLDBERGER, Dean Moses, Earl Worsham, Frederick Roehner and Soil Roehner, Appellants, v. REGENCY HIGHLAND CONDOMINIUM ASSOCIATION, INC., etc., et al., Appellees.
    No. 81-1815.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1984.

      Curtis G. Levine of Baskin & Sears, P.A., Boca Raton, for appellants.
    Sidney A. Stubbs of Jones & Foster, P.A., West Palm Beach, for appellee-Bar-nett Bank of Delray Beach.
   DOWNEY, Judge.

This is an appeal from a final summary judgment on a crossclaim entered against the partners of a general partnership doing business as Regency Highland Associates, and in favor of Barnett Bank of Delray Beach.

Melvin Goldberger, Dean Moses, Earl Worsham, Frederick Roehner, and Soli Roehner, partners doing business as Regency Highland Associates, were the developers of Regency Highland Condominium. During the course of the construction of the condominium in 1974 the partnership furnished the Bank with a loan guarantee in which the partners agreed to pay all indebtedness which the partnership might incur with the bank. Then in April 1975 the partnership borrowed $100,000 from the Bank on a 90 day note. A total of $25,000 was paid on said note, the balance being renewed from time to time. The final renewal was a note of April 24, 19⅛8, which is the basis of this suit. After the execution of the original note, but prior to the date of execution of the April 24, 1978, note, the partnership assigned to the Bank as collateral security for the loan in question a promissory note dated October 4, 1976, from Regency Highland Condominium Association, Inc., to the partnership in the principal sum of $148,860.90.

The present controversy is part of litigation that Regency Highland Condominium Association, Inc., instituted by filing a complaint in which the above mentioned partners and the Barnett Bank, among others, were named as defendants. The Bank filed a crossclaim against the partners to recover the balance due on the $75,000 promissory note of April 24, 1978, basing liability on the guarantee agreement the partners gave the Bank in 1974. The partnership filed an amended answer to the Bank’s amended crossclaim denying the allegations thereof and affirmatively pleading: 1) the loan guarantee agreement did not apply to notes from parties other than the partnership, and the note forming the basis of the loan guarantee was not from the partnership; 2) failure of consideration for the guarantee agreement; and 3) failure of consideration for the note forming the basis of the loan guarantee agreement.

The Bank moved for summary judgment based upon the depositions of Goldberger (the managing general partner of Regency Highland Associates) and the president of the Bank; answers to the interrogatories; and admissions filed by the parties. Based upon the record, we hold there was no genuine issue of material fact and the trial court was correct in entering summary judgment for the Bank.

There was no issue of fact involving the partnership’s execution of the guarantee agreement and the''note of April 24, 1978, nor the partnership’s default on the note, nor the amount due thereon. Furthermore, the affirmative defenses created no genuine issue of fact. The April 24, 1978, renewal note the Bank sued on was a note of the partnership that the loan guarantee agreement covered. Because it was a renewal note, i.e., because it was given in payment of a previous note representing the loan obtained in 1975, no consideration was necessary to support enforcement of consideration of the note of April 24, 1978. § 673.408, Fla.Stat. (1981); Frank v. Intercontinental Bank, etc., 372 So.2d 543 (Fla. 3d DCA 1979).

The partners’ last argument is that their assignment to the Bank of the collateral note of $148,860.90 made by the condominium association in favor of the partnership constituted payment and discharge of the partnership’s obligation to the Bank. We need not reach this argument for the following reason. Payment is an affirmative defense that must be pleaded. Fla.R.Civ.P. 1.110(d); and see, e.g., Connecticut State Bank & Trust Co. v. Dadi, 182 Conn. 530, 438 A.2d 733 (1980). Failure to plead an affirmative defense waives that defense, and an appellate court will not consider it in reviewing a summary judgment for a plaintiff. Fink v. Powsner, 108 So.2d 324 (Fla. 3d DCA 1959). However, even if payment had been properly made an issue, the evidence does not support that defense.

Finding no genuine issue of material fact presented in the trial court, we affirm the judgment appealed from. Cf. Sani-Serv Division of Burger Chef Systems v. Southern Bank, 244 So.2d 509 (Fla. 4th DCA 1970).

AFFIRMED.

LETTS and HERSEY, JJ„ concur.


text:
    Melvin T. GOLDBERGER and Betty K. Goldberger, et al., Appellants/Cross-Appellees, v. REGENCY HIGHLAND CONDOMINIUM ASSOCIATION, INC., Appellee/Cross-Appellant.
    No. 82-1862.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1984.

      Curtis G. Levine of Baskin & Sears, P.A., Boca Raton, for appellants/cross-appellees.
    Robert A. Eisen of Marchbanks & Eisen, P.A., Boca Raton, for appellee/cross-appel-lant.
   DOWNEY, Judge.

Appellee, Regency Highland Condominium Association, Inc., commenced this suit against appellants, Goldberger and others, developers of the condominium, to, among other things, recover improper charges made against the condominium association by the developers. From a judgment partially in favor of each side this appeal and cross-appeal were perfected.

The only issues remaining on appeal have to do with the propriety of 1) the developers’ charging the association for the carpeting and marble wall and floor coverings located in the lobby area of the condominium, and 2) the developers’ making a profit on the furnishing of personal property to the association.

The parties have denominated the period from the establishment of the association to the date of relinquishment of control by the developers as. the Interim Assessment Period. The condominium documents provide that the developers were not to pay for any of the personal property furnished for the common areas of the condominium. Instead, the documents provide that one percent of the purchase price of each condominium unit should be placed in a Common Element Improvement Fund (referred to herein as the 1% Fund) to be used for acquiring the manager’s apartment, furnishing, carpeting, and decorating common areas and recreational facilities, and prepaying insurance and other expenses as the association might choose. The condominium prospectus stated that the developer would not supply any personal property for the recreation room or other commonly used facilities. All such property was to be purchased by the condominium association.

The primary controversy involves the circuit court’s findings that certain marble floor and wall coverings in the common areas were fixtures while carpet floor coverings in those areas were not.

The law of fixtures is somewhat amorphous. What personal property attached to realty retains its character as personal property and what personal property becomes part of the realty depends upon the facts of each case. As we recognized in Dependable Air Cond. v. Office of Treasurer, 400 So.2d 117, 119 (Fla. 4th DCA 1981): “ ‘Fixtures are a species of property which lie along the dividing line between real and personal property.’ ” A key factor in this determination is the intention of the parties.

We hold that, based upon the evidence adduced, the circuit court properly found that the intention of the parties was that the marble wall and floor coverings were fixtures while the carpeting was not.

In its cross appeal the association also contends that the developers made a profit on the purchase and resale to the condominium of the various items of personal property compensable from the 1% Fund. Some of this profit was to reimburse the developers for “administrative services” in procuring said personal property. This issue was one of fact. The trial judge heard the witnesses and, in fact, charged back against the developers some of the profit charged. Once again, we can not say reversible error is demonstrated in this regard.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

LETTS and HERSEY, JJ., concur.