source: Caselaw Access Project

license: Public Domain

text:
    THE FLORIDA BAR RE: RULES OF JUDICIAL ADMINISTRATION.
    No. 65102.
    Supreme Court of Florida.
    Sept. 13, 1984.
    John F. Harkness, Jr., Executive Director, Tallahassee, for The Florida Bar.
    Stephen A. Rappenecker, Chairman, Gainesville, for The Florida Bar, Judicial Administration Rules Committee, Petitioner.
   PER CURIAM.

The Florida Bar Judicial Administration Rules Committee has submitted proposed amendments to the Florida Rules of Judicial Administration in accordance with Florida Rule of Judicial Administration 2.130. We have jurisdiction. Art. V, § 2(a), Fla. Const. A new rule, Rule 2.130(b)(5), has been submitted which provides for a coordinating function of all rule proposals to be assigned to the Judicial Administration Rules Committee. The intent is to identify how proposed changes in one set of rules inter-relate with existing and proposed rules in other areas. This coordinating function provides a means for determining the potential impact of rules changes on rules in other areas of the law. The prior Rule 2.130(b)(5) has been renumbered as 2.130(b)(6) to accommodate this change.

Rule 2.140, which concerns judicial qualification proceedings, is the former Rule of Appellate Procedure 9.520. The Judicial Qualifications Committee requested that the rule be relocated since, in the committee’s view, it was more appropriate under the Rules of Judicial Administration. Section (b)(2) of the rule is amended as indicated.

This Court adopts the following rules and amendments, which will govern all proceedings within their scope after 12:01 a.m., January 1, 1985. These amendments shall supersede all conflicting rules and statutes. The amendments here adopted affect only the rules which are expressly treated. Deletions are indicated by the use of struck-through type. New language is indicated by underscoring.

Rule 2.130(b)(5) is created and former Rule 2.130(b)(5) is renumbered as Rule 2.130(b)(6) to read as follows:

(5) The Judicial Administration Rules Committee shall also serve as a Rules Coordinating Committee. Each rules committee shall have at least one of its members appointed to the Judicial Administration Rules Committee to serve as liaison. All proposed rules changes shall be submitted to the Judicial Administration Rules Committee which shall then refer all proposed rules changes to those rules committees that might be affected by the proposed change. All proposed changes shall be submitted by June 30 of each year of the rules cycle.
(5) (6) The committees shall consider and vote on each proposal. The committees may originate proposals and are charged with the duty of regular review and reevaluation of the rules to advance orderly and inexpensive procedures in the administration of justice. The committees may accept or reject proposed amendments or may amend proposals. The committees shall keep minutes of their activities, which minutes shall reflect the action taken on each proposal. Copies of the minutes shall be furnished to the clerk of the Supreme Court, to the Board of Governors of The Florida Bar, to the Supreme Court of Florida, and to the proponent of any proposal considered at the meeting.

Rule 2.140 is the former Rule of Appellate Procedure 9.520. Section (b)(2) is amended as indicated.

Rule 2.140. Judicial Discipline, Removal, Retirement and Suspension
(a) Filing. Any recommendation to the Supreme Court from the Judicial Qualifications Commission pursuant to Article V, Section 12 of the Florida Constitution shall be in writing. The original and seven copies shall be filed with the clerk of the Court, and a copy shall be served expeditiously on the justice or judge against whom action is sought.
(b) Procedure.
(1) Promptly upon the filing of a recommendation from the Commission, the Court shall determine whether the Commission’s recommendation complies with all requirements of the Constitution and the Commission’s Rules. Upon determining that the recommendation so complies, and unless the Court otherwise directs, an order shall issue directing the justice or judge to show cause in writing why the recommended action should not be taken.
. (2) The justice or judge may file a response in writing within the time .set by the Court in its order to show causes, and the Commission may serve a reply within 20 days from service of the response.
(3) If requested by the Commission, or by a justice or judge at the time of filing a response, the Court may allow oral argument on the Commission’s recommendation.

It is so ordered.

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


author: PER CURIAM.

text:
    In re FLORIDA RULES OF PRACTICE AND PROCEDURE FOR TRAFFIC COURTS.
    No. 65104.
    Supreme Court of Florida.
    Sept. 13, 1984.
    John F. Harkness, Jr., Executive Director, Tallahassee, for The Florida Bar; Stephen J. Goldstein, Chairman, Coconut Grove, and Richard E. Cox, Executive Secretary, Tallahassee, for The Traffic Court Review Committee, petitioner.
   PER CURIAM.

Pursuant to a petition from the Florida Bar and a response from the Traffic Court Review Committee, the Florida Rules of Practice and Procedure for Traffic Rules are amended in the manner as appended to this opinion. This action shall be effective January 1, 1985.

It is so ordered.

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

II. GENERAL PROVISIONS

Rule 6.040 Definitions
The following terms shall have the meaning respectively ascribed to them:
“Criminal Traffic Offense” means a violation of a statute or ordinance governing traffic not subject to the provisions of Chapter 318, Florida Statutes, within the jurisdiction of a court to which these rules apply — ineluding-Chapter 322, Florida Statutes, sections-316.027,- 316.-061, 316.067, 316.072(3), 316.192, 316.193, 316.1935, 860.01, Florida Statutes and Chapter 893, Florida Statutes.
“Infraction” means a noncriminal traffic violation of-Chapter- 316,-or — sections 240.265, 320.07(3), 339.30 or-34Q,23rFloridsvStatutes, except as provided in section 318.17, F-lor-idar-Statutes-,■ which is not punishable by incarceration and for which there is no right to a trial by jury or a right to court appointed counsel.
Rule 6.070 [Reserved]
Rule 6.120 [Reserved]
Rule 6.130 Case Consolidation
■Insofar — -as.practicable traffic cases shall be-tried- separately- from other easesr Where a person is cited for the commission of both a criminal and a civil traffic violation or both a civil traffic infraction requiring a mandatory hearing and a civil traffic infraction not requiring a hearing the cases may be heard simultaneously if they arose out of the same set of facts.
Under any of these circumstances the civil traffic infraction shall be treated as continued for the purpose of reporting to the Department. Prior to the date of the scheduled hearing or trial, an alleged offender may dispose of any nonmandatory civil traffic infraction in the manner provided by these rules and section 318.14, Florida Statutes.
Rule 6.150 Witnesses
(a) The procedure prescribed by law in civil and criminal cases concerning the attendance and testimony of witnesses, the administration of oaths and affirmations and proceedings to enforce the remedies and protect the rights of the parties shall govern traffic cases so far as they are applicable unless provided otherwise by these rules or by the law. Payment of witness fees and costs of serving witnesses in civil traffic eases shall be made in the same manner as a criminal traffic case.
(b) An alleged offender in a civil infraction case may offer evidence of other witnesses through use of one or more affidavits. Said affidavits shall be considered by the court only as to the facts therein which are based on the personal knowledge and observation of the affiant as to relevant material facts. However, such affidavits shall not be admissible for the purpose of establishing character or reputation.
Rule 6.155 [Reserved]

III. CRIMINAL OFFENSES

Rule 6.160 Practice as in Criminal Rules
Except as hereinafter provided, trial under this part shall be governed by the Rules of Criminal Procedure so far as they may be applicable unless they are in conflict with these rules. A person shall be considered “taken into custody” for the purpose of Rule 3.191 when he is arrested or when a traffic citation, notice to appear, summons, information or indictment is served upon him in lieu of arrest.
Rule 6.165 Complaint; Summons; Form; Use
(a) All prosecutions for criminal traffic offenses by law enforcement officers shall be by uniform traffic citation as provided for in section 316.650, Florida Statutes, or other applicable statutes, or by affidavit, information or indictment as provided for in the Florida Rules of Criminal Procedure. If prosecution is by affidavit, information, or indictment, a uniform traffic citation shall be prepared by the arresting officer at the direction of the prosecutor or, in the absence of the arresting officer, by the prosecutor, and submitted to the Department of Highway Safety and Motor Vehicles.
(b) The Court may allow the prosecutor to amend in open court a traffic citation alleging a criminal traffic offense to state a different traffic offense. No new traffic citation need be issued by the arresting officer. The court in its discretion may grant additional time to the defendant for the purpose of preparing his defense if the amendment has prejudiced the defendant.
Rule 6.290 Withholding Adjudication Prohibited; When
(a) Pursuant to the provisions of section 322.281 316.656, Florida Statutes, no court shall suspend, defer, or withhold adjudication of guilt or the imposition of sentence for the offense of driving or being in actual physical control of a motor vehicle, while having an unlawful blood alcohol level or while under the influence of alcoholic beverages, model glue any chemical substance set forth in section 877.111, Florida Statutes, or any substance controlled by Chapter 893, Florida Statutes.

IV. TRAFFIC INFRACTIONS

Rule 6.330 Election to Attend Traffic School
(a) Unless a mandatory hearing is required pursuant to section 318.19, Florida Statutes, or the alleged offender appears at a hearing before an official, an alleged offender may elect to attend a driver improvement school or a student traffic safety council school where such schools are available in lieu of payment of the civil penalty. Attendance at a driver improvement school shall not operate to waive the surcharges for excessive speed imposed by section 318.18(3), Florida Statutes. The person must appear at the traffic violations bureau of the court having jurisdiction of the case to make such an election7 within ten days of the date of the citation. If the person begins the driver school course, such action shall constitute an admission and a waiver of the right to a hearing. An offender may elect to-attend a driver improvement school or student traffic safety council school to satisfy only one-traffic infraction citation-during each calendar year,
Rule 6.430 [Reserved]
Rule 6.450 Order of Hearing
(a) If it is admitted that the traffic infraction was committed, the official shall permit the offender to offer a statement concerning the commission of the infraction. The official may examine the offender and issuing officer concerning the infraction prior to making a determination as to the civil penalty to be imposed.
(b) Prior to the commencement of a hearing the official shall briefly describe and explain the purposes and procedure of the hearing and the rights of the alleged offender.
(c) The issuing-officer — shall,- after being sworn, testify-and-of-fer evidence-to the facts concerning the alleged-infrac-tiom — After-such-testimony, the official and the alleged-offender — or his- counsel may examine such-off-icer-7
(c) Thereafter the alleged offender may offer sworn testimony and evidence and after such testimony is offered shall answer questions as may be asked by the official.
(d) If the testimony of additional witnesses is to be offered, the order o& in which such witnesses shall testify shall be within the discretion of the official conducting the hearing. Any such witness shall be sworn and shall testify, and may then be questioned by the official, and thereafter may be questioned by the alleged offender or counsel.
(e) Upon the conclusion of such testimony and examination, the official may further examine or allow such examination as the official deems appropriate.
(f) At the conclusion of all testimony and examination, the alleged offender or counsel shall be permitted to make a statement in nature of a closing argument.
(g) In any case where a contested infraction hearing is held, and the offender, who has either asked for the contested hearing or has otherwise received proper notice of the hearing, fails to appear for the hearing, the official can proceed with the hearing, take testimony and, if it is determined that the infraction was committed, impose a penalty as if the offender had attended the hearing. In the interests of justice, the court may vacate the judgment upon a showing of good cause by the offender.
Rule 6.455 Amendments
The charging instrument may be amended at any time prior to hearing, subject to the approval of the official. The official may grant a continuance if such amendment requires one in the interests of justice. No case shall be dismissed by reason of any informality or irregularity in the charging instrument.
Rule 6.460 Evidence
(a) The rules of evidence applicable in all hearings for traffic infractions shall be the same as in civil cases, except to the extent inconsistent with these rules, and shall be liberally construed by the official hearing the case. Evidence admissible shall include but not be limited ■to-accident reports.
(b) Any party to a noncriminal traffic infraction may make a tape-recording of the hearing. The provision and operation of the recording equipment shall be the responsibility of the alleged offender unless otherwise provided by the court. The original recording shall immediately be delivered to the clerk at the end of the hearing who shall seal and file it. Such tape shall be transcribed for an appeal if ordered by the alleged offender. Transcription shall only be by an official court reporter at the alleged offender’s expense.
Rule 6.470 Costs
(a) In those cases where a hearing is held to determine whether a traffic infraction was committed, court costs up to fifteen twenty-five dollars may be assessed by the official against the offender in addition to the penalty imposed.
Rule 6.480 Deferred Payment of Penalty Imposed
Upon motion of the offender or upon his own motion an official may allow a reasonable amount of time before requiring the payment of a penalty imposed. If payment is not made after such extension or extensions the failure to pay shall be reported to the-department within ten days- for the purpese-of-suspending the offenders driving license, such action will be considered a failure to comply for purposes of section 318.15, Florida Statutes.
Rule 6.540 Time for and Method of Making Motions; Procedure
(a) A motion for new hearing or in arrest of judgment, or both, may be made within four days, or such greater time as the official may allow, not to exceed 40 30 days, after the finding of the official.
Rule 6.560 Conviction of Traffic Infraction
An admission or determination that a person has committed a traffic infraction shall constitute a conviction as that term is used in Chapter 322, Florida Statutes, and section 943.25(4) and (8), Florida Statutes, unless adjudication is withheld by an official in those cases in which withholding of adjudication is not otherwise prohibited by statute or rule of procedure.
Rule 6.570 Reporting Action Requiring Suspension of Driver License
Any noncompliance with the provisions of Chapter 318, Florida Statutes, resulting in the suspension of a driver license shall be reported to the department within ten days of the noncompliance five days after an offender’s failure to comply with the requirements of section 318.-18(1), on a form to be supplied by the department. Any noncompliance may be determined without the necessity of holding a hearing.


text:
    In re FLORIDA RULES OF PRACTICE AND PROCEDURE FOR TRAFFIC COURTS.
    No. 65104.
    Supreme Court of Florida.
    Oct. 18, 1984.
    John F. Harkness, Jr., Executive Director, Tallahassee, for petitioner The Florida Bar.
    Stephen J. Goldstein, Chairman, Coconut Grove, and Richard E. Cox, Executive Secretary, Tallahassee, for petitioner The Traffic Court Review Committee.
   PER CURIAM.

Pursuant to a petition from the Traffic Court Review Committee, the Florida Rules of Practice and Procedure for Traffic Rules are amended in the manner as appended to this opinion. This action shall be effective January 1, 1985.

It, is so ordered.

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

IV. TRAFFIC INFRACTIONS

Rule 6.470 Costs

(c) In addition to the costs provided above,-those The assessments for law enforcement training established in section 943.25(4) and (8), Florida Statutes, shall be collected, in addition to the civil penalty.

Where a hearing is held the law enforcement-education-assessments shall be in addition- to any — penalty--or—■ costs-assessed. Where no hearing-is-held-and the offender admits the commission of the offense by-forfeiting a bond or paying the penalty by mail — or—⅛—person, the law enforcement education assessments shall be deducted ■from-the-amount of the penalty in addition to the costs provided in (b)-above.

If an offender elects a driver improvement school as provided in Rule 6.330 of these Rules, the law enforcement education assessments shall be collected at the time the offender appears before the traffic violations bureau to make his or her election.


author: /s/ Mark Hulsey MARK HULSEY, Chairman

text:
    JUDICIAL QUALIFICATIONS COMMISSION RULES OF PROCEDURES.
    No. 65451.
    Supreme Court of Florida.
    Sept. 13, 1984.
   The Court having determined that it would not repeal any rule submitted by the Judicial Qualifications Commission, this case is now deemed to be final.

RULES OF THE FLORIDA JUDICIAL QUALIFICATIONS COMMISSION

Pursuant to the provisions of Article V, Section 12 of the Florida Constitution, as amended 1976, the following Rules are hereby adopted by the Judicial Qualifications Commission.

FLORIDA JUDICIAL QUALIFICATIONS COMMISSION RULES

RULE 1. SCOPE AND TITLE

These rules apply to all proceedings before the Judicial Qualifications Commission involving the discipline, retirement or removal of justices of the Supreme Court, and judges of the District Courts of Appeal, Circuit Courts, and County Courts pursuant to Article V, Section 12 of the Constitution of the State of Florida, as amended, and removal or disqualification of members of the Commission. These rules shall be known as Florida Judicial Qualifications Commission Rules and may be abbreviated as “FJQCR”.

RULE 2. DEFINITIONS AND VOTE

(a) In these rules, unless the context or subject matter otherwise requires:

(1) “Commission” means the Judicial Qualifications Commission.
(2) “Judge” means a justice of the Supreme Court and a judge of the District Court of Appeal, Circuit Court and County Court.
(3) “Chairman” includes the acting chairman.
(4) “General Counsel” means any member of The Florida Bar designated by the Commission to serve as legal ad-visor to the Commission, and to perform such other duties as authorized by the Commission.
(5) “Counsel” means any member(s) of The Florida Bar designated by the Commission to gather and present evidence before the Commission with respect to the charges against a judge and to represent the Commission in all proceedings, including investigations.
(6) “Shall” is mandatory and “may” is permissive.
(7) “Mail” and “mailed” include ordinary mail and personal delivery.
(8) The masculine gender includes the feminine gender.
(9) “Member” means a member of the Commission.
(b) Vote required:
(1) Unless otherwise provided in these rules, Commission action shall be by a majority vote of the members present and voting.
(2) A finding of probable cause against a judge or recommendation of suspension of a judge shall be by an affirmative vote of not less than seven (7) members.
(3) A finding that a judge is guilty shall be by an affirmative vote of not less than nine (9) members.
(4) The recommendation of discipline following a finding of guilty shall be by an affirmative vote of not less than
nine (9) members. (5) The removal of a member of the Commission shall be by an affirmative vote of not less than seven (7) members.

RULE 3. MEMBERSHIP AND JURISDICTION

(a) The membership of the Commission shall be as prescribed in Article Y, Section 12 of the Constitution of the State of Florida and for such term as prescribed by general law. When a judge ceases to be a judge of the court from which he was appointed or whenever any member becomes otherwise ineligible to hold office, his membership on the Commission shall terminate. The Chairman shall promptly notify the appointing authority of the vacancy. In the event of a vacancy the Commission shall appoint a temporary replacement from the same category until such time as the appointing authority shall duly certify to the Commission a replacement for the remainder of the term.

(b) The Commission shall have such jurisdiction and powers as are necessary to conduct the proper and speedy disposition of any investigation or hearing, including the power to compel the attendance of witnesses, to take or to cause to be taken the deposition of witnesses, to order the production of books, records or other documentary evidence, and the power of contempt. In any matter within the jurisdiction of the Commission requiring the appearance of any person before the Commission or any member, any member shall have the power to issue subpoenas and to administer oaths and affirmations to such persons.

RULE 4. OFFICERS OF COMMISSION

The Commission shall elect a Chairman and a Vice-Chairman, each of whom shall serve for a term of two years. The Vice-Chairman shall act as the chairman of the Commission in the absence of the Chairman. The Commission may appoint an executive director and a General Counsel,

RULE 5. QUORUM OF COMMISSION

A quorum for the transaction of business by the Commission shali be seven members except as otherwise provided in these rules,

RULE 6. COMPLAINT AND INVESTIGATION

(a) The Commission, upon receiving factual information, not obviously unfounded or frivolous, or an individual complaint made under oath, indicating that a judge is guilty of willful or persistent failure to perform his duties, or conduct unbecoming a member of the judiciary demonstrating a present unfitness to hold office, or that he has a disability seriously interfering with the performance of his duties, which is, or is likely to become, permanent in nature, may make an investigation to determine whether formal charges should be instituted.

(b) The judge has no right to be present or to be heard during an investigation, but before the Commission determines that there is probable cause to initiate formal charges, the judge shall be notified of the investigation, the general nature of the subject matter of the investigation, and shall be afforded reasonable opportunity to make a statement before the Commission, personally or by his attorney(s), verbally or in writing, sworn or unsworn, explaining, refuting or admitting the alleged misconduct or disability. The judge shall not have the right to present other testimony or evidence, and he shall not have the right of confrontation or cross-examination of any person interviewed, called or interrogated by the Commission. Such notification shall be given personally or by registered or certified mail addressed to the judge at his chambers or, if returned undelivered, at his last known residence.

(c) The Commission shall have the right to require a judge to meet with it on an informal basis in reference to matters that relate to his judicial duties.

(d) When a judge has received a notice of investigation, notice to appear before the Commission, or requested such notification, if the investigation does not disclose probable cause to warrant further proceedings, the judge shall promptly be so notified.

(e) The Commission shall have access to all information from all executive, legislative and judicial agencies, including grand juries. At any time, on request of the Speaker of the House of Representatives or the Governor, the Commission shall make available all information in possession of the Commission for use in consideration of impeachment or suspension, respectively.

RULE 7. FORMAL CHARGES — PROCEEDINGS

(a) If the Commission finds probable cause that formal charges should be filed against the judge, it shall designate one or more Counsel who shall prepare appropriate papers and pleadings, gather and present evidence before the Commission with respect to the charges against the judge, and otherwise act as counsel in connection with the prosecution of the charges against the judge, including the representation of the Commission in connection with any Commission or judicial proceedings. It shall direct Counsel to cause to be served on the judge a copy of Notice of Formal Charges. Such proceedings shall be entitled:

“BEFORE THE FLORIDA JUDICIAL QUALIFICATIONS COMMISSION”

“Inquiry Concerning a Judge, No. _

(b) The notice shall be issued in the name of the Commission and specify in ordinary and concise language the charges against the judge and allege essential facts upon which such charges are based, and shall advise the judge of his right to file a written answer to the charges against him within 20 days after service of the notice upon him.

(c) Service shall be made personally or by registered or certified mail addressed to the judge at his chambers or, if returned undelivered, at his last known residence.

(d)After formal charges have been instituted, any notice or other material shall be mailed to the judge at his residence address or to his attorney(s).

RULE 8. SUSPENSION OF JUDGE

Subsequent to the filing of the notice of investigation, or upon or after the filing of the Notice of Formal Charges, the Commission may, in its discretion, issue its order directed to the judge ordering him to show cause before the Commission why the Commission should not recommend to the Supreme Court that he be suspended from office, either with compensation or without compensation, while the inquiry is pending. The order to show cause shall be returnable before the Commission at a designated place and at a time certain, at which place and time the Commission shall consider the question of suspension. Thereafter, the Commission, not less than seven (7) members concurring, may recommend to the Supreme Court that the judge be suspended from performing the duties of his office either with or without compensation, pending final determination of the inquiry. If the Commission recommends suspension, such recommendation shall have incorporated therein a record of the proceedings of the Commission in relation to the recommendation.

RULE 9. ANSWER AND MOTIONS

(a) Within 20 days after service of the Notice of Formal Charges, the judge may file an Answer. If the judge desires that all hearings be held in the county of his residence, he shall so demand in writing at the time of filing his initial answer.

(b) There shall be a motion Committee with the power to dispose of all pre-trial motions. Such Committee shall be composed of the Chairman and two judges appointed by the Chairman. The Committee’s disposition shall be subject to review at the Commission’s next ensuing meeting.

RULE 10. FILING

(a) Upon the filing of the Notice of Formal Charges against a judge with the Clerk of the Supreme Court of Florida, the Notice of Formal Charges and all subsequent proceedings before the Commission shall be public.

(b) The original of all pleadings subsequent to the Notice of Formal Charges shall be filed with the Clerk of the Supreme Court of Florida, which office is designated by the Commission for receiving, docketing, filing and making such records available for public inspection. A duplicate original of all pleadings filed in the proceedings shall be served on each party, with a copy to the Commission office.

RULE 11. SETTING FOR HEARING

After the filing of an Answer or the expiration of the time for its filing, the Commission shall set a time and a place for a hearing and shall give notice of such hearing at least 20 days prior to the date set. If the judge timely requests that hearing^) be held in the county of his residence, it shall be so held unless the Commission, by an affirmative vote of at least nine (9) members, determines otherwise.

RULE 12. PROCEDURE

(a) In all formal proceedings, the Florida Rules of Civil Procedure shall be applicable except as otherwise provided.

(b) Counsel shall, upon written demand of a party or counsel of record, promptly furnish the following:

The names and addresses of all witnesses whose testimony the Counsel expects to offer at the hearing, together with copies of all written statements and transcripts of testimony of such witnesses in the possession of the Counsel or the Commission which are relevant to the subject matter of the hearing and which have not previously been furnished. When good cause is shown this rule may be waived.

RULE 13. HEARING

At the time and place set for hearing, the Commission may proceed with the hearing whether or not the judge has filed an Answer or appears at the hearing.

RULE 14. DISABILITY

Upon receiving information that a judge is suffering a possible physical or mental disability which seriously interferes with the performance of his judicial duties, the Commission, upon the vote of nine members, may order the judge to submit to a physical and/or mental examination. If the judge fails to submit to such examination within the time ordered, the Commission may recommend to the Supreme Court that the judge be suspended without compensation until such time as the judge complies with the Commission’s order.

RULE 15. EVIDENCE

At a hearing before the Commission, legal evidence only shall be received and oral evidence shall be taken only on oath or affirmation.

RULE 16. PROCEDURAL RIGHTS OF JUDGE

(a) A judge shall have the right and reasonable opportunity to defend against the charges by the introduction of evidence, to be represented by attorney(s), and to examine and cross-examine witnesses. He shall also have the right to the issuance of subpoenas for attendance of witnesses to testify or produce books, papers, and other evidentiary matter.

(b) When a transcript of the trial testimony has been prepared at the expense of the Commission, a copy thereof shall be furnished without cost to the judge. The judge shall have the right, without any order or approval, to have all or any portion of the testimony in the proceedings transcribed at his expense.

(c) If the judge is adjudicated incompetent, the Commission shall appoint an attorney ad litem unless the judge has a guardian who will represent him. The guardian or attorney ad litem may claim and exercise any right and privilege and make any defense for the judge with the same force and effect as if claimed, exercised, or made by the judge, if competent, and whenever these rules provide for the serving or giving notice or sending any matter to the judge, a copy of such notice or matter also shall be served, given or sent to the guardian or attorney ad litem.

RULE 17. AMENDMENTS TO NOTICE OR ANSWER

The Commission may in the interest of justice allow or require amendments to the Notice of Formal Charges and may allow amendments to the Answer. In case such amendment is made, the judge shall be given reasonable time both to answer the amendment and to prepare and present his defense against the matters charged thereby.

RULE 18. EXTENSION OF TIME

The Chairman of the Commission may extend the time for filing an Answer or for the commencement of a hearing before the Commission.

RULE 19. HEARING ADDITIONAL EVIDENCE

The Commission may order a hearing for the taking of additional evidence at any time while a matter is pending before it. The order shall set the time and place of the hearing and shall indicate matters on which the evidence is to be taken. A copy of such order shall be sent by mail at least 10 days prior to the date of the hearing.

RULE 20. COMMISSION VOTE

After conclusion of the hearing and consideration of the issues presented for decision, the Commission shall first determine by vote the judge’s guilt or innocence of the formal charges. If the Commission determines by an affirmative vote of not less than nine members that the judge is guilty of one or more of the charges so specified, it shall then proceed to determine the discipline to be recommended. Failure to recommend the imposition of a penalty by the affirmative vote of not less than nine members shall constitute a dismissal of the proceedings.

RULE 21. CERTIFICATION OF COMMISSION RECOMMENDATIONS TO SUPREME COURT

Upon dismissal by the Commission of the formal charges, the Commission shall promptly file a copy of the dismissal order certified by the Chairman, General Counsel or executive director of the Commission in the office of the Clerk of the Supreme Court of Florida. Upon making a determination recommending discipline, retirement, or removal of a judge, the Commission shall promptly file a copy of the recommendation certified by the Chairman, General Counsel or executive director of the Commission, together with a transcript and the findings and conclusions, with the Clerk of the Supreme Court and shall promptly mail to the judge and to his attorney(s) notice of such filing, together with a copy of such recommendations, findings, and conclusions.

RULE 22. REVIEW OF COMMISSION PROCEEDINGS

To the extent necessary to implement this rule, the Florida Appellate Rules shall be applicable to reviews of Commission proceedings by the Supreme Court. (Fla.App. Rule 9.520)

RULE 23. SUBPOENAS

Subpoenas for the attendance of witnesses and the production of documentary evidence in any proceedings shall be issued as follows:

(a) Judicial Qualifications Commission. Subpoenas for the attendance of witnesses and the production of documentary evidence for discovery, and for the appearance of any person before the Commission or any member, may be issued by any member or the General Counsel of the Commission, and be served in the manner provided by law for the service of witness subpoenas in a civil action.

(b)Contempt. Any person who, without adequate excuse, fails to obey such a subpoena served upon him may be cited for contempt of the Commission in the manner provided in these rules.

RULE 24. CONFIDENTIALITY OF PROCEEDINGS

(a) Until formal charges against a judge are filed by the Commission with the Clerk of the Supreme Court of Florida, all proceedings by or before the Commission shall be confidential. Upon a finding of probable cause and the filing by the Commission with said Clerk of such formal charges against a judge, such charges and all further proceedings before the Commission shall be public.

(b) All notices, papers and pleadings mailed to a judge prior to formal charges being instituted shall be enclosed in a cover marked “confidential”.

(c) Every witness in every proceeding under these Rules shall be sworn to tell the truth and not to disclose the existence of the proceeding, subject matter or the identity of the judge until the proceeding is no longer confidential under these Rules. Violation of this oath shall be an act of contempt of the Commission.

(d) Violation of these Rules by a member of the Commission shall subject him after written notice and hearing, to removal from office by an affirmative vote of seven (7) members of the Commission and shall constitute contempt of the Commission which may be enforced by appropriate proceedings in the Supreme Court of Florida.

RULE 25. INTERESTED PARTY

A judge who is a member of the Commission or of the Supreme Court shall be disqualified from participation in such capacity in any proceedings involving his own discipline, retirement or removal.

RULE 26. DISQUALIFICATION OF MEMBERS OF THE COMMISSION

(a) Whenever a judge against whom formal proceedings have been instituted, as provided in these Rules, shall make and file with the Commission an affidavit that he fears he will not receive a fair hearing before the Judicial Qualifications Commission on the charges because of the prejudice of one or more members of the Commission against him, and the facts stated as the basis for making the said affidavit shall be supported in substance by affidavit of at least two reputable citizens of the State of Florida not of kin to the judge or his attorney, or if any member of the Commission shall voluntarily recuse himself, such member or members of the Commission shall proceed no further therein and shall be disqualified from hearing said charges. Such affidavit shall state the facts and the reasons for the belief that any such prejudice exists, shall specify the member(s) of the Commission allegedly prejudiced, and shall be filed not more than 15 days after service of the Notice of Formal Charges upon the judge charged. The Commission shall make ad hoc appointments of a person or persons to take the place of the member or members of the Commission so disqualified, but each member so disqualified may participate in the action of the Commission in making such ad hoc appointments. Each ad hoc appointee shall be from the same category as the disqualified member(s) set forth in Section 12(a) of Article V of the Constitution of the State of Florida. The judge may within 15 days after receiving notice of any ad hoc appointment, file a like affidavit as to said appointee which shall be supported in substance by affidavit of two citizens as set forth above, in which event said ad hoc appointee shall not be disqualified on account of alleged prejudice against said judge unless said appointee admits that it is then a fact that he is prejudiced against said judge, or unless a majority of the Commission, which may include any ad hoc appointee, holds that said appointee is prejudiced against the judge; in which event the same ad hoc appointment procedure set forth above shall be followed until a qualified person has been appointed.

(b) A judge moved against by the Commission may, by affidavit, suggest the disqualification of a member or members of the Commission unsupported by two citizens, but in such event the determination of the matter of disqualification shall be by majority vote of the Commission unless the person sought to be disqualified voluntarily recuses himself.

RULE 27. CONTEMPT

Should any witness fail, without justification, to respond to the lawful subpoena of the Commission or, having responded, fail or refuse to answer all inquiries or to turn over evidence that has been lawfully subpoenaed, or should any person be guilty of disorderly or contemptuous conduct before any proceeding of the Commission, a motion may be filed in the name of the Commission before the Circuit Court of the County in which the contemptuous act was committed, alleging the specific failure on the part of the witness or the specific disorderly or contemptuous act of the person which forms the basis of an alleged contempt of the Commission. Such motion shall pray for the issuance of an order to show cause before the Circuit Court why the Circuit Court should not find him in contempt of the Commission and he should not be punished by the Court therefor. The Circuit Court shall issue such orders and judgments therein as the Court deems appropriate.

I hereby certify that the foregoing Rules numbered 1 through 27 were duly adopted by the Florida Judicial Qualifications Commission in session at Tampa, Florida, on the 18th day of May, 1984.

/s/ Mark Hulsey MARK HULSEY, Chairman


text:
    William MARKHAM, as Broward County Property Appraiser, et al., Petitioners, v. E.C. FOGG, III, Allen S. Fogg, and Elizabeth Fogg Lane, Respondents.
    No. 60759.
    Supreme Court of Florida.
    Oct. 18, 1984.
    Rehearing Denied Dec. 12, 1984.

      Gaylord A. Wood, Jr., Fort Lauderdale, and Jim Smith, Atty. Gen., and J. Terrell Williams, Asst. Atty. Gen., Tallahassee, for petitioners.
    Clifford A. Schulman, Alan S. Gold and Timothy A. Smith of Greenberg, Traurig, Askew, Hoffman, Lipoff, Quentel & Wolff, Miami, for respondents.
    William M. Barr of Raymond, Wilson, Conway, Barr, Burrows & Jester, Daytona Beach, amicus curiae for John W. Turner, Jr., as Volusia County Property Appraiser.
    Ted R. Manry, III and Alton B. Parker of Macfarlane, Ferguson, Allison & Kelly, Tampa, amicus curiae for W.D. Daniel, Jr., as Hillsborough County Property Appraiser.
    Stephen W. Metz, Robert M. Rhodes and Terry E. Lewis of Messer, Rhodes & Vick-ers, Tallahassee, amicus curiae for Florida Home Builders Ass’n.
   PER CURIAM.

We review the opinion of the Fourth District Court of Appeal in Fogg v. Bro-ward County, 397 So.2d 944 (Fla. 4th DCA 1981), which directly conflicts with Lauder-dale v. Blake, 351 So.2d 742 (Fla. 3d DCA 1977), on the same point of law. We have jurisdiction, article V, section 3(b)(3), Florida Constitution. We quash the decision of the district court.

This is an agricultural classification case pertaining to the classification under section 193.461, Florida Statutes (1973) of certain lands in Broward County for the years 1974 and 1975. Particularly, the litigation concerns the “Fogg Parcel” of 270 acres. Prior to 1974, the parcel was classified as agricultural land and taxed as such. On January 1, 1974, the Tax Assessor reclassified the property as nonagricultural and reassessed it. The landowners brought actions for declaratory judgment and injunctive relief to have their property classified and taxed as agricultural for 1974 and 1975. The trial court denied the relief sought and upheld the nonagricultural classification. The trial court found that the ease was primarily controlled by section 193.461(4)(c) because there was a sale of land at a price more than three times the agricultural assessment and because the landowners had not provided sufficient evidence to rebut the presumption. In addition, the trial court found that the land had been rezoned to a nonagricultural use at the request of the owner as per section 193.461(4)(a)3. Finally, the trial court applied the criteria set forth in section 193.-461(3)(b) and found that the landowners had not shown that the land was primarily being used for bona fide agricultural purposes.

The district court reversed. It held that section 193.461(4)(c) applied only to completed sales of realty and that the landowners, while having numerous contracts to sell the land, had not in fact sold the land. The court also held that the rezoning from agricultural to planned unit development did in fact occur but that such did not require the land to be reclassified as nonag-ricultural since agricultural use continued on the property pending its actual use as a development. Finally, the district court held that the evidence failed to support the trial court’s finding that the land in question was not being used primarily for bona fide agricultural purposes.

The petitioners raise three issues on this appeal. First, they contend that the district court erred when it rejected the application of section 193.461(4)(c) to this case. That section, the “three times rule,” creates a rebuttable presumption that the sale of land for a purchase price which is three or more times the agricultural assessment placed on the land shows that the land is not being used for bona fide agricultural purposes. The district court was correct in noting that the statutory language applies only to a completed sale and not mere contracts to sell. In the instant case, there was no completed sale.

The next point raised by petitioners concerns the issue left undecided by this court in Harbor Ventures, Inc. v. Hutches, 366 So.2d 1173 (Fla.1979). There, the constitutionality of section 193.461(4)(a)3 was brought up but because of the particular facts of that case the constitutional question was not addressed. Since the facts of the case sub judice squarely fall within the purview of that section, we must reach that issue now. It is incontrovertible that the section has been triggered because abundant evidence appears in the record to support the conclusion that the property was in fact rezoned even though the landowners argue that no rezoning has taken place. This was the conclusion of the trial court with which the district court concurred.

We have in the instant case land that has been rezoned to a nonagricultural use at the request of the owner subsequent to the enactment of the 1972 law. The statute specifically mandates that “[t]he assessor shall reclassify” land that has been rezoned to a nonagricultural use at the request of the owner. The language is mandatory and “is a clear legislative directive to the property appraisers of the state.” 366 So.2d at 1175 (Boyd, J., dissenting). Unlike the above-mentioned section 193.461(4)(c) which allows the landowner to present evidence in opposition to the appraiser’s reclassification, section 193.-461(4)(a)3 is in the form of a mandatory presumption. We have stated that the test to determine the constitutionality of a mandatory presumption is three-fold:

[constitutionality ... under the Due Process Clause must be measured by determining (1) whether the concern of the legislature was reasonably aroused by the possibility of an abuse which it legitimately desired to avoid; (2) whether there was a reasonable basis for a conclusion that the statute would protect against its occurrence; and (3) whether the expense and other difficulties of individual determinations justify the inherent imprecision of a conclusive presumption.

Bass v. General Development Corp., 374 So.2d 479, 484 (Fla.1979). See also Gallie v. Wainwright, 362 So.2d 936 (Fla.1978).

Concerning the first prong of this test, it is apparent that the legislature’s concern was reasonably aroused by the possibility of land developers taking advantage of the agricultural classification provisions to minimize their holding costs prior to development. As to the second prong, the legislature could have concluded that since rezoning to a nonagricultural use was an obvious and necessary prerequisite to development, the statute in question would protect against the abuse of this special tax classification. As stated in Harbour Ventures:

Such an interpretation provides an incentive for agricultural lands to remain devoted to agricultural production by discouraging speculative rezoning.

366 So.2d at 1174 (emphasis supplied). Quite clearly, the statute proscribes speculative rezoning and hence is rationally related to the overall greenbelt purpose.

Moreover, this reasoning is not inconsistent with the view expressed in Bass where the related section 193.461(4)(a)4 was declared unconstitutional. That section was found to be infirm because there was no rational connection between the greenbelt purpose and that section’s mandatory reclassification upon the occurrence of recording of a subdivision plat. We held then that the filing of a subdivision plat has little to do with the use of property. As related to that section, use was the standard against which to measure reasonableness. With the instant section, however, use is not the standard. Our Constitution does not mandate a use standard; instead, article VII, section 4(a), only says that “Agricultural land or land used exclusively for non-commercial recreational purposes may be classified by general law and assessed solely on the basis of character or use.” Our cases have held that in implementing that provision “the legislature has generally chosen to classify land on the basis of use rather than an implication that article VII, section 4(a) of our Constitution requires that result.” Bass at 482 (emphasis supplied). Of note is the case of Rai-ney v. Nelson, 257 So.2d 538 (Fla.1972), wherein we sustained a related legislative enactment that classified land as nonagri-cultural according to criteria completely unrelated to the actual use of the taxpayer’s property. See also Lauderdale v. Blake, 351 So.2d 742 (Fla. 3d DCA 1977). Or, as noted in Harbor Ventures, “If the greenbelt law and the decisions interpreting it have established actual use of land as the general test for entitlement to the agricultural assessment, then clearly section 193.-461(4)(a)3 constitutes a legislatively-mandated exception to that test.” 366 So.2d at 1175 (Boyd, J., dissenting). Therefore, the instant section is rationally related to the legislative purpose and hence is proper.

As to the final prong of the test, the landowner has no right of rebuttal to the mandatory reclassification of the subject property. This is not fatal, however, because the instant statute can be read in pari materia with section 193.461(3)(b). After property has been reclassified under subsection (4)(a)3 as nonagricultural, the landowner is not precluded from presenting evidence under subsection (3)(b) to show that his property is indeed being used primarily for bona fide agricultural purposes. That latter subsection lists several factors that may be shown by the landowner and if sufficient, the property would then be classified agricultural. The procedure, in essence, would be the same as if subsection (4)(a)3 itself were rebuttable. For this reason, it clearly satisfies the third prong of the due process test.

Basically, this procedure is what the trial judge employed in the proceedings below. That judge determined that the landowners had not shown sufficient evidence to prove that the land in question was being used primarily for bona fide agricultural purposes for the years 1974 and 1975. As long as there is competent, substantial evidence to buttress this finding, an appeals court should not substitute its judgment for that of the trier of fact. Greenwood v. Oates, 251 So.2d 665 (Fla. 1971); Firstamerica Development Corp. v. County of Volusia, 298 So.2d 191 (Fla. 1st DCA 1974), cert, denied, 312 So.2d 755 (Fla.1975). Since the issue of whether the land was primarily being used for agricultural purposes is one of fact, the trial court’s finding is clothed with a presumption of correctness. Since the evidence was conflicting, we find that there was ample credible evidence adduced at the trial to sustain the trial judge’s findings. The district court was hence in error in overruling the trial court on this point.

The last issue merits but little discussion. Argument is made that the statute violates equal protection. However, the test under equal protection was highlighted in In re Estate of Greenberg, 390 So.2d 40 (Fla.1980):

The rational basis or minimum scrutiny test generally employed in equal protection analysis requires only that a statute bear some reasonable relationship to a legitimate state purpose. That the statute may result incidentally in some inequality or that it is not drawn with mathematical precision will not result in its invalidity. Rather, the statutory classification to be held unconstitutionally violative of the equal protection clause under this test must cause different treatments so disparate as relates to the difference in classification so as to be wholly arbitrary.

390 So.2d at 42. This Court has already recognized in Harbor Ventures that the legislature could have concluded the statute was rationally related to the legitimate state goal of minimizing and discouraging speculative rezoning. Harbor Ventures, 366 So.2d at 1174. The treatment afforded the instant landowners are not so disparate from others as to be wholly arbitrary.

We hold, therefore, that section 193.-461(4)(a)3, applying to a situation where land zoned agricultural is changed to a nonagricultural zoning at the request of its owner, is constitutional and was proper as applied to the facts of this case. Accordingly, we quash the decision of the district court and instruct it to enter an order affirming the final judgment of the trial court.

It is so ordered.

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

BOYD, C.J., dissents.

      .The trial involved the application of sections 193.461(3)(b), (4)(a)3, and (4)(c). These statutes provide in relevant part as follows:
      193.461 Agricultural lands; classification and assessment.
      ******
      (3)(b) Subject to the restrictions set out in this section, only lands which are used primarily for bona fide agricultural purposes shall be classified agricultural. "Bona fide agricultural purposes" means good faith commercial agricultural use of the land. In determining whether the use of the land for agricultural purposes is bona fide, the following factors may be taken into consideration:
      1. The length of time the land has been so utilized;
      2. Whether the use has been continuous;
      3. The purchase price paid;
      4. Size, as it relates to specific agricultural use;
      5. Whether an indicated effort has been made to care sufficiently and adequately for the land in accordance with accepted commercial agricultural practices, including, without limitation, fertilizing, liming, tilling, mowing, reforesting, and other accepted agricultural practices;
      6. Whether such land is under lease and, if so, the effective length, terms, and conditions of the lease; and
      7. Such other factors as may from time to time become applicable.
      * * * * * *
      (4)(a) The assessor shall reclassify the following lands as nonagricultural:
      3. Land that has been zoned to a non-agricultural use at the request of the owner subsequent to the enactment of this law; or
      * * * * * *
      (4)(c) Sale of land for a purchase price which is three or more times the agricultural assessment placed on the land shall create a presumption that such land is not used primarily for bona fide agricultural purposes. Upon a showing of special circumstances by the landowner demonstrating that the land is to be continued in bona fide agriculture, this presumption may be rebutted.


author: EHRLICH, Justice.

text:
    In re The Matter of the ADOPTION OF: H.Y.T., a minor. Daniel S. WALLACE, etc., Appellant, v. C. McFerrin SMITH, III, etc., et al., Appellees.
    No. 65515.
    Supreme Court of Florida.
    Oct. 25, 1984.
    Rehearing Denied Dec. 12, 1984.
    Daniel S. Wallace, Daytona Beach, for appellant.
    David A. Monaco of Cobb & Cole, Dayto-na Beach, for News-Journal Corp.

      F. Daun Fowler, Daytona Beach, for Alva and Wanda Ramey.
    Jim Smith, Atty. Gen. and Mark C. Men-ser, Asst. Atty. Gen., Daytona Beach, for State of Florida, for intervenor.
   EHRLICH, Justice.

We accepted jurisdiction of this case because of a question certified as being of great public importance, pursuant to article V, section 3(b)(5), Florida Constitution, and passed directly to this Court by the Fifth District Court of Appeal pursuant to Florida Rules of Appellate Procedure 9.125.

The question arises out of a protracted custody dispute between the maternal grandparents (Rameys) and paternal grandparents (Thomases) over their orphaned granddaughter, which culminated in an order of adoption in favor of the Thomases being set aside by the Fifth District Court of Appeal in 1980. Ramey v. Thomas, 382 So.2d 78 (Fla. 5th DCA), cert, denied, 389 So.2d 1116 (Fla.1980). In that decision, the DCA noted that the child was unrepresented in all the earlier procedures and ordered the appointment of an attorney-ad-litem to represent the best interests of the child. The press had given the bitter dispute great play and had covered all the earlier proceedings.

The hearing on a subsequent adoption proceeding was scheduled to begin May 29, 1984. The child’s attorney-ad-litem moved the court to close all the proceedings pursuant to section 63.162(1), Florida Statutes (1983). The media protested and urged the court to deny the motion on grounds that the policy underlying the statute was inapplicable to the facts of this case and that any right of privacy the child might claim had been waived.

The court ruled section 63.162(1) unconstitutional, reasoning that if the constitutional guarantee of a fair trial did not outweigh the media’s first amendment right of access to court proceedings, no rights implicated in the present case could counterbalance the first amendment. As the statute permitted no discretion in its application, the statute was thus held to be unconstitutionally overbroad.

A petition for writ of certiorari was filed, the Fifth District Court of Appeal certified the question to be of great public importance and passed it directly to the Supreme Court without addressing the merits.

We reverse the order of the circuit court and find section 63.162(1) constitutional.

Section 63.162 provides, in pertinent part:

Notwithstanding any other law concerning public hearings and records: (1) All hearings held in proceedings under this act shall be held in closed court without admittance of any person other than essential officers of the court, the parties, witnesses, counsel, persons who have not consented to the adoption and are required to consent, and representatives of the agencies who are present to perform their official duties.
(1) All hearings held in proceedings under this act shall be held in closed court without admittance of any person other than essential officers of the court, the parties, witnesses, counsel, persons who have not consented to the adoption and are required to consent, and representatives of the agencies who are present to perform their official duties.

The Florida legislature has recognized an overriding public policy of protecting from harmful publicity parties to and the subject of adoption proceedings. This policy recognizes that adoption proceedings are qualitatively different from other judicial proceedings. In typical litigation, the courts have the duty to resolve competing interests of the parties. The courts are disinterested in the object of the litigation. In adoption proceedings, however, the court’s primary duty is to serve the best interests of the child — the object of the proceeding. In re Adoption of M.A.H., 411 So.2d 1380 (Fla. 4th DCA 1982) (best interests of the child superceded only by rights of non-consenting natural parent); Ramey v. Thomas.

The media and the grandparents contend that the prior publicity has already destroyed any privacy to which the child may have been entitled in the proceedings and that the statute, because it lacks a mechanism by which the trial court may weigh the freedom of the press against the parties’ privacy interests, is facially unconstitutional. The newspaper admits that it has already had access to and printed the sordid details of this bitter inter-family battle and argues that any damage to the child has already been done. In so arguing, the press attempts to lay on the shoulders of the child the burden of proving a need for the protection the people of the state, through the legislature, have attempted to afford parties to an adoption. However, in so arguing, the press acknowledges that it has suffered no unreasonable damage in its ability to report this human interest story.

We agree with the distinction, set forth in Firestone v. Time, 271 So.2d 745 (Fla. 1972), between public interest and public concern:

It must be taken as true, on the other hand, that “newsworthiness” is that which is well calculated to generate wide reader interest and thus may be a legitimate area of exploitation by the communications media. But we perceive a clear distinction between mere curiosity, or the undeniably prevalent morbid or prurient intrigue with scandal or with the potentially humorous misfortune of others, on the one hand and real public or general concern on the other.

Id. at 748 (emphasis in the original). We find that any impairment of the media’s freedoms this statute creates affects only matters of “newsworthiness” rather than matters of “real public or general concern,” and, by the admission of the newspaper’s own counsel, the impairment is minimal.

For this reason, we reverse the order of the circuit court and direct that all proceedings be conducted in compliance with section 63.162(1), Florida Statutes (1983).

It is so ordered.

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


text:
    THE FLORIDA BAR, Petitioner, v. G. Robert HARRIS, Respondent.
    No. 65482.
    Supreme Court of Florida.
    Nov. 15, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Louis Thaler, Bar Counsel, Miami, for petitioner.
    G. Robert Harris, Miami Lakes, in pro. per.
   PER CURIAM.

This matter is before the Court on respondent’s Petition for Leave to Resign Pending Disciplinary Proceedings, pursuant to article XI, Rule 11.08 of the Integration Rule of The Florida Bar.

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

1. That respondent shall not apply for readmission for a period of three (3) years from the date of the Supreme Court’s order accepting his resignation pursuant to article XI, Rule 11.08(6) of the Integration Rule of The Florida Bar;

2. That respondent complies with the terms of his five (5) year probation in Bro-ward Circuit Case No. 84-7400-CF which includes the making of restitution at a rate of $200 per month to William R. Perrin;

3. That respondent pays all costs to date in the amount of $805.85 with execution to issue with interest at a rate of 12% on all costs not paid within thirty (30) days of entry of an order by the Supreme Court accepting his resignation, unless time for payment is extended by the Board of Governors;

4. That respondent cooperates with any Clients’ Security Fund investigation and reimburses the Clients’ Security Fund for any claim paid, including any claim which may be filed during the period of resignation; and

5. That respondent shall not apply for reinstatement until restitution has been made, disciplinary costs paid, and all Clients’ Security Fund matters have been resolved.

The Florida Bar having now filed its response supporting the Petition for Leave to Resign Pending Disciplinary Proceedings on the conditions set forth above, and the Court having reviewed the same and determined that the requirements of Rule 11.-08(3) are fully satisfied, the Petition for Leave to Resign without leave to apply for readmission for three (3) years is hereby approved effective immediately.

Costs in the amount of $805.85 are hereby taxed against respondent.

It is so ordered.

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


author: GLICKSTEIN, Judge. GLICKSTEIN, Judge.

text:
    Bruce FULLER, Petitioner, v. Louie L. WAINWRIGHT and Florida Parole and Probation Commission, Respondents.
    No. 83-2409.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1984.
    Rehearing Denied Dee. 12, 1984.
    Bruce Fuller, Claremont, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for respondent Louie L. Wainwright.
    Doris E. Jenkins, Asst. Gen. Counsel, Tallahassee, for respondent Fla. Parole and Probation Com’n.
   GLICKSTEIN, Judge.

This is a petition for habeas corpus by which petitioner seeks immediate release. The vehicle is appropriate for the relief being sought. Jenrette v. Wainwright, 410 So.2d 575 (Fla. 3d DCA), petition for review denied, 419 So.2d 1201 (Fla.1982). We grant the petition, subject to standard provisions of parole, if any. See Taylor v. Wainwright, 418 So.2d 1095 (Fla. 5th DCA 1982).

At issue is the effect of the revision of section 944.275, Florida Statutes (1983), which increases the amount of gain time prisoners may earn, upon the determination of a presumptive parole release date (PPRD). The Commission contends the revised statute has ho effect, yet readily agrees that it accelerated the expiration date of petitioner’s commitment for a previous conviction used to aggregate the PPRD to June 25, 1981; and that petitioner was not sentenced on his subsequent conviction until December 23, 1982.

Respondents acknowledge this court’s decision in Shannon v. Turner, 432 So.2d 204 (Fla. 4th DCA 1983), in the Commission’s response, which admits that the Commission cannot consider, in determining aggregation, a commitment which had expired at the time of current recommitment in setting the new PPRD. The Commission contends, however, that it is only responsible for considering information available at the time of the initial interview and that it, correctly, aggregated convictions existing at that point. Its response fails to state that the revision to section 944.275 (Ch. 83-131, Laws of Fla.) was approved by the Governor on June 15, 1983, filed in the Office of the Secretary of State on June 16, 1983 and provided, in section 43, that section 8 — which pushed petitioner’s expiration date forward — became effective upon becoming a law. Further, the response fails to mention that the Commission’s action in setting the PPRD occurred on July 18, 1983. By ignoring these facts, the Commission argues that petitioner is seeking to modify his PPRD, which the Commission contends cannot be altered except under narrowly prescribed circumstances. Acknowledgment of the facts neglected by the Commission in its response leads us to conclude that the Commission ignored the revised version of section 944.275 when it set petitioner’s PPRD.

Even if we disregard all of the foregoing, it would not affect our result because of what we perceive to be the legislative intent, although we have not had the benefit of any legislative history from respondents. Prior to 1983, gain time was less than 10 days a month. The legislature then expressly said in order to encourage satisfactory behavior, the department is authorized to grant additional time. § 944.-275(1) & (4), Fla.Stat. (1983). It further said that basic gain time under this section shall be computed and applied to all prisoners sentenced for offenses committed on or after July 1, 1978. § 944.275(6)(a). Petitioner’s previous commitment resulted from two offenses which occurred on June 12, 1979. Liberty is not like the proverbial insurance policy which is often critically described as “the big print giveth, and the small print taketh away.” That which the legislature giveth, the Commission cannot take away. Accordingly, regardless of whether petitioner’s PPRD was set before or after the 1983 statute became law, his PPRD had to be set or altered if he had convictions coming within the post-June 30, 1978 protection — which he did.

HURLEY and DELL, JJ., concur.

ON MOTION FOR REHEARING

GLICKSTEIN, Judge.

The Florida Parole and Probation Commission asks us to reconsider our original decision in this case found at 458 So.2d 1131 (Fla. 4th DCA 1984), in which we granted the petition for habeas corpus, subject to parole conditions. We decline to change our ruling in this case. We recognize, however, that the question presented in this and several companion cases is of great importance and that prisoners in similar situations are receiving different treatment from the various districts in this state. We therefore certify to the Florida Supreme Court the following question:

IN CASES IN WHICH A PRISONER CLAIMS THAT IMPROPER CALCULATION OF HIS PRESUMPTIVE PAROLE RELEASE DATE ENTITLES HIM TO IMMEDIATE RELEASE, IS HIS REMEDY PROPERLY PURSUED THROUGH A PETITION FOR A WRIT OF MANDAMUS OR HABEAS CORPUS?

HURLEY and DELL, JJ., concur.


author: HERSEY, Judge.

text:
    Eric ROBINSON, Appellant, v. STATE of Florida, Appellee. Victor ROBINSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 83-1094, 83-1192.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1984.
    Rehearing and Rehearing En Banc Denied Dec. 5, 1984.

      Richard L. Jorandby, Public Defender, Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

Appellants were convicted of two counts of robbery and were sentenced to forty years imprisonment on each count, the sentences to run concurrently. Mandatory minimum sentences were also imposed under Section 775.087(2), Florida Statutes (1983), and the trial court retained jurisdiction over the first one-third of the sentences. Only the retention of jurisdiction is appealed, based upon the failure of the trial court to state the grounds for retention.

At sentencing, the trial court discussed appellants’ prior convictions, stating: “The defendants are very young but they do have what appears to be a very serious past history.” Subsequently, “[bjased on what I know about both of you” the court retained jurisdiction over appellants for one-third of their sentences. The state points out that counsel for appellants raised no objection to retention of jurisdiction at the trial level.

The initial question is whether or not the reasons stated by the court on the record satisfy the requirements of the statute which provides:

(a) In retaining jurisdiction for the purposes of this act, the trial court judge shall state the justification with individual particularity, and such justification shall be made a part of the court record. A copy of such justification shall be delivered to the department together with the commitment issued by the court pursuant to s. 944.16.

§ 947.16(3)(a), Fla.Stat. (1983).

At least two appellate judges have questioned whether appellate review of the sufficiency of the subjective reasons stated by the trial court for retention is appropriate. See Moore v. State, 392 So.2d 277 (Fla. 5th DCA 1980) (Cowart, J., concurring specially) and Wilson v. State, 449 So.2d 822 (Fla. 1st DCA 1984) (Nimmons, J., concurring specially).

We are inclined to the view, and therefore so hold, that while the trial court is vested with the broadest possible discretion in determining whether to retain jurisdiction, that discretion is not totally unbridled. For example, retention based upon the trial judge’s personal dislike of the defendant or his distaste for the particular criminal act committed or the defendant’s race, sex or religious persuasion would, in our view, be a clear abuse of discretion. On the other hand retention based upon an extensive history of criminal convictions, as here, would ordinarily constitute a permissible exercise of discretion. Accordingly, the emphasis of our inquiry shifts from the substantive to the procedural aspect of the sentencing proceeding. The question we consider in this context is whether the trial court complied with the statutory requirement that the justification for retention be stated “with individual particularity.”

We have previously suggested on two occasions that one purpose of the statute is to give the defendant an opportunity to respond to the reasons stated for retention. Stafford v. State, 440 So.2d 55 (Fla. 4th DCA 1983) and Thornton v. State, (Fla. 4th DCA, Case No. 82-1208, opinion filed April 13, 1983) [8 F.L.W. 1043], rev’d on other grounds on reh'g, 442 So.2d 1104 (Fla. 4th DCA 1983). It is apparent that a defendant can make no appropriate response to a broad reference to his criminal history without more specific details.

Another purpose of the statute is to permit a successor judge, at such time as release of the defendant is contemplated to determine from the record the reasons for retention of jurisdiction in the first instance. Intelligent review is prevented if the record is vague and subjective. What is required is “individual particularity” which would require at a minimum, where the defendant’s history is relied upon, that his prior convictions be made a matter of record.

We therefore conclude that the record is deficient for failure to comply with the statute. However, as we noted previously, the appellant failed to object to retention in the trial court and we thus are required to consider whether the deficiency may be reached on direct appeal. The Supreme Court has recently answered this question affirmatively. See State v. Rhoden, 448 So.2d 1013 (Fla.1984).

The statute contemplates a statement on the record of the reasons justifying retention of jurisdiction which is then to be appended to the sentencing document to be delivered to the department of corrections. § 947.16(3)(a), Fla.Stat. (1983). The trial court should therefore state on the record as part of the sentencing in open court the reasons for retention which would permit defendant to respond and to make appropriate objection in order to preserve any error for appellate review. We remand to permit the trial court to do so.

Affirmed but remanded to correct sentencing procedure.

LETTS and BERANEK, JJ., concur.


author: MILLS, Judge.

text:
    OSCEOLA COUNTY COMMISSIONERS and U.S. Fidelity & Guaranty Company, Appellants, v. Dea B. HAND, Appellee.
    No. AV-321.
    District Court of Appeal of Florida, First District.
    July 13, 1984.

      John R. Gierach of Gierach & Ewald, Orlando, for appellants.
    Beth A. Ferguson of Meyers & Mooney, Orlando, for appellee.
   MILLS, Judge.

In this workers’ compensation action, the employer/carrier appeal from an order awarding Hand permanent total disability benefits. We agree with the employer/carrier’s contention that the deputy commissioner erred in finding Hand’s injury causally connected to her employment and therefore reverse.

Hand worked for the Osceola County property appraiser. On 11 November 1980, Hand was at work lifting plastic maps when she felt pain in her back. Soon after this accident, Hand saw Dr. Perez, a general practitioner.

On 13 November 1980, Dr. Perez had x-rays taken of Hand’s spine. The x-rays showed osteoporosis and scoliosis, but no fractures. Dr. Perez diagnosed lumbar sprain and prescribed medication.

By 1 December 1980, Hand had returned to work. She continued to work until 18 May 1981. On that date, she was at work, opening the bottom drawer of a file cabinet, when her back started hurting again. The next day, Hand returned to Dr. Perez complaining of pain in the lower back.

Dr. Perez had x-rays taken on 1 June 1981. In contrast to the x-rays taken in November 1980, these x-rays showed a compression fracture of a vertebra. Dr. Perez referred Hand to Dr. Schroeder, an orthopedist.

Dr. Schroeder also took x-rays and noted the compression fracture. He testified that in his opinion, based on reasonable medical probability, the compression fracture occurred in May 1981. But Dr. Schroeder also testified, based on reasonable medical probability, that the compression fracture was not work related.

Another orthopedist, Dr. Pearson, also saw Hand. Dr. Pearson agreed Hand sustained a compression fracture, but was unable to testify, based on reasonable medical probability, that the compression fracture was causally connected to Hand’s employment.

Despite the absence of medical testimony concerning causation, the deputy found the compression fracture resulted from an industrial accident on 18 May 1981. The deputy further found Hand suffered permanent impairment caused by the compression fracture and based the permanent total disability award thereon.

Before benefits are awarded, there must be a showing that the injury is causally connected to the employment. For conditions not readily observable or discoverable without medical examination, proof of causation requires medical testimony, based on reasonable medical probability, that the injury is causally connected to the claimant’s employment. Metric Constructors, Inc. v. Chiles, 429 So.2d 1292 (Fla. 1st DCA 1983); Turner v. Harmon, 438 So.2d 1030 (Fla. 1st DCA 1983).

In the case before us, the deputy related the compression fracture to Hand’s employment without the requisite medical testimony. The award of benefits must therefore be reversed. Of course, the award of costs and attorney’s fees to the claimant must also be reversed. We need not reach the other issues raised on appeal.

REVERSED.

SHIVERS and WIGGINTON, JJ., concur.


text:
    Gerald Bernard SMALL, Appellant, v. STATE of Florida, Appellee.
    No. 83-2108.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1984.
    Rehearing Denied Dee. 13, 1984.
    Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals his convictions and sentences for felony-murder, attempted robbery of a purse and armed robbery of an automobile. Recognizing that the double jeopardy clause prohibits multiple convictions and sentences for greater and lesser included offenses, see Bell v. State, 437 So.2d 1057 (Fla.1983), and that at least one of the underlying felonies must be deemed a necessarily lesser included offense of felony-murder, see Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977); Scott v. State, 453 So.2d 798 (Fla.1984); Snowden v. State, 449 So.2d 332 (Fla. 5th DCA 1984); Jones v. State, 452 So.2d 643 (Fla. 4th DCA 1984), we vacate the defendant’s conviction and sentence for the less serious offense of attempted robbery. See Pinder v. State, 366 So.2d 38 (Fla. 2d DCA 1978), affd, 375 So.2d 836 (Fla.1979).

We have reviewed the other points on appeal and find them to be without merit. Accordingly, we affirm the convictions and sentences for felony-murder and armed robbery, but reverse the defendant’s conviction and sentence for attempted robbery.

AFFIRMED IN PART; REVERSED IN PART.

LETTS, HERSEY and HURLEY, JJ., concur.


author: NIMMONS, Judge. PER CURIAM.

text:
    Richard PULLUM, Appellant, v. CINCINNATI, INCORPORATED, the Cincinnati Shaper Company, Sti-Gro First Corp., formerly known as Harry P. Leu Machinery Corporation, a dissolved Florida corporation, Robert H. Stine, Eugenie E. Stine and Robert E. Groth, as directors and/or trustees of Sti-Gro First Corp., Appellees.
    No. AU-62.
    District Court of Appeal of Florida, First District.
    Sept. 26, 1984.
    Rehearing Denied Nov. 16, 1984.

      Wayne Hogan of Brown, Terrell & Hogan, Jacksonville, for appellant.
    Ellis E. Neder, Jr., Jacksonville, for ap-pellees.
   NIMMONS, Judge.

Richard Pullum, plaintiff below, appeals a summary judgment entered against him on the basis that his claim was barred by Section 95.031(2), Florida Statutes, a statute of repose. We affirm.

On April 29, 1977, Pullum, while operating a Cincinnati pressbrake machine, was injured by the machine. On November 26, 1980, Pullum filed suit against the manufacturer and others on the basis of negligence, implied warranty and strict liability. Although the suit was filed within the four-year limitations period provided for in Section 95.11(3)(e), Florida Statutes, it was not filed within twelve years from the November 11, 1966, delivery of the subject pressb-rake to the original purchaser as required by the statute of repose. Therefore, the trial court entered summary judgment against Pullum.

Application of the statute of repose to Pullum reduced the time within which he was required to file suit after his accident from four years to a little over one and one-half years. This does not amount to a proscribed limitation of access to courts under Article I, Section 21, of the Florida Constitution. See Cates v. Graham, 451 So.2d 475 (Fla.1984); Purk v. Federal Press Company, 387 So.2d 354 (Fla.1980); Bauld v. J A. Jones Construction Company, 357 So.2d 401 (Fla.1978). Pullum concedes that point but urges that the application of the subject statute denies equal protection of the law. He points out that if the accident had occurred twelve years or more after delivery of the machine, the statute of repose would not have barred his action, and he would have had, pursuant to Section 95.11(3), four years from the accident date within which to file his suit. This is so because of the Supreme Court’s holding in Overland Construction Company, Inc. v. Sirmons, 369 So.2d 572 (Fla.1979), in which the court held that the barring of a cause of action under a similar statute of repose before the cause of action accrued is repugnant to the Article I, Section 21, guarantee of the right of access to courts. The results of the interplay among the regular four-year limitations statute, the twelve-year statute of repose and the holding in Overland are: (1) that a person who sustains an injury at any time within eight years from the product’s initial delivery date will have four years from the date of injury within which to file suit; (2) that a person injured twelve years or more after the delivery date will also have four years from the date of injury to sue because Overland would preclude the operation of the twelve-year statute; provided, however, that such person might not have as many as four years to bring the action where his injury occurred prior to January 1, 1975, the effective date of Chapter 74-382, Laws of Florida (the law creating Section 95.031), and where he would be required to file suit by January 1, 1976, by virtue of the one-year savings clause provided for by Chapter 74-382, section 36; and (3) that those persons injured during the time frame of eight to twelve years after delivery date will be governed by a limitations period of something less than four years, such period depending upon the point, during that time frame, when the injury occurs (i.e., if the injury occurs nine years after delivery, the party would have three years to sue; if the date of injury was 10 years after delivery, suit would have to be brought within two years; etc.). Pullum complains that he is denied equal protection because he had only one and a half years from his injury within which to file suit whereas a person injured by the same machine approximately two and one half years later (at least 12 years after delivery) would have, by virtue of the holding in Overlaid, four years within which to file.

The Supreme Court of Florida has consistently sustained such statutes of repose against constitutional attack where application of the statute leaves the plaintiff with sufficient time to institute suit after injury or discovery of the cause of action. See Cates v. Graham, supra; Purk v. Federal Press Co., supra; Bauld v. J. A. Jones Construction Company, supra; Universal Engineering Corp. v. Perez, 451 So.2d 463 (Fla.1982); compare Overland Construction Company, Inc. v. Sirmons, supra; Diamond v. Squibb and Sons, 397 So.2d 671 (Fla.1981); and Battilla v. Allis Chalmers Manufacturing Company, supra. Admittedly, most of these authorities have dealt with attacks under the Article I, Section 21, “access to courts” provision. However, in Purk, the plaintiff also contended that the statute denied her equal protection of the laws, which contention was rejected by the Supreme Court. Mrs. Purk was injured on April 24, 1973, by a punch press machine which had originally been delivered on June 2, 1961. The applicable limitation statute would have given her four years from the injury date within which to file suit. However, the statute of repose, enacted effective January 1, 1975, barred actions for injuries occurring twelve years or more after the delivery date. But the statute’s savings clause afforded one year to all existing causes of action (i.e., until January 1, 1976) within which to file suit. Mrs. Purk’s four-year period for filing suit was therefore reduced to approximately two years and eight months (the period of time between the April 24, 1973, date of accident and the savings clause date, January 1, 1976). In contrast, a person injured by the same machine almost one year and four months earlier than the date of Mrs. Purk’s injury would have had four years within which to file suit. Moreover, and perhaps more significantly, the Supreme Court in Purk recognized that the statute of repose with which it was dealing was subject to its decision a year earlier in Overland, supra, which materially affected the application of the statute by, as we have noted, holding that persons injured after the running of the twelve-year statute of repose would have four full years from the date of injury within which to file suit. The Purk court, nevertheless, held that the statute did not deny equal protection of the laws.

The fact that Mrs. Purk’s injury occurred prior to the enactment of Section 95.031 and thus was covered by the one-year savings clause of Chapter 74-382, Section 36, whereas Pullum’s injury occurred after the effective date of the act, does not furnish Pullum with any equal protection argument materially different from that of Mrs. Purk. The statute of repose operated on both to reduce their otherwise available four-year limitation periods to lesser periods whereas those persons injured by products delivered twelve years or more before the injury continue to have four years within which to file suit. The Supreme Court having denied in Purk the equal protection attack on the subject statute, we likewise reject such attack in the instant case.

Essentially, persons such as Mr. Pullum who claim to have been caught in the legislatively imposed statute of repose time squeeze are left only with a denial of access to the courts argument where the injury occurs too close in time to the end of the twelve-year period. As previously noted, this argument is unavailing to Pullum inasmuch as one and one-half years still remained after the accident before the twelve-year period expired. In Cates v. Graham, supra, which involved application of another statute of repose dealing with medical malpractice, the Supreme Court held that a five-to-six-month time squeeze imposed by the statute upon the plaintiff did not constitute an unconstitutional denial of access to the courts. See also Cobb v. Maldonado, 451 So.2d 482 (Fla. 4th DCA 1984) (on motion for rehearing).

The summary judgment is Affirmed.

MILLS and SMITH, JJ., concur.

On Motion for Rehearing

PER CURIAM.

Although we deny the appellant’s motion for rehearing, we certify the following, pursuant to Fla.R.App.P. 9.030(a)(2)(A)(v), as a question of great public importance:

Does Section 95.031(2), Florida Statutes, deny equal protection of the laws to persons such as appellant who are injured by products delivered to the original purchaser between eight and twelve years prior to the injury?

MILLS, SMITH and NIMMONS, JJ., concur.

      . Section 95.031(2) provides:
      (2) Actions for products liability and fraud under s. 95.11(3) must be begun within the period prescribed in this chapter, with the period running from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence, instead of running from any date prescribed elsewhere in s. 95.11(3), but in any event within 12 years after the date of delivery of the completed product to its original purchaser or within 12 years after the date of the commission of the alleged fraud, regardless of the date the defect in the product or the fraud was or should have been discovered. (e.s.)

      . Although the statute of repose involved in Overland, Section 95.11(3)(c), deals with liability for improvements to real property, the Overland holding applies equally to product liability statutes of repose such as Section 95.031(2). See Battilla v. Allis Chalmers Manufacturing Company, 392 So.2d 874 (Fla.1981); cf. Purk v. Federal Press Company, supra.

      . In Overland, supra, the Court distinguished Bauld, supra, pointing out that, in Bauld: (1) the injury occurred prior to the enactment of the applicable statute of repose; (2) two and one-half years of the four year limitations period had elapsed when the statute was enacted; and (3) a savings clause extended the deadline an additional year for filing suit on existing causes of action which otherwise would have been terminated by the new twelve-year limitation.

      .For example, the Court stated in Overland, supra-.

      "[T]he unique restriction imposed by our constitutional guarantee of a right of access to courts makes it irrelevant that this 'statute of repose’ may be valid under state or federal due process or equal protection clauses.” 369 So.2d at 575.

      . This savings clause was codified as Section 95.022, Florida Statutes (1975).

      . Section 95.11(4)(b), Florida Statutes.


author: COBB, Chief Judge. FRANK D. UPCHURCH, Jr., Judge,

text:
    Mary Ethel WADDELL, Appellant, v. STATE of Florida, Appellee.
    No. 83-853.
    District Court of Appeal of Florida, Fifth District.
    Oct. 11, 1984.
    Rehearing Denied Nov. 20, 1984.
    James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Chief Judge.

The appellant, Mary Ethel Waddell, was convicted of forgery and uttering a forged instrument. On appeal she asserts that she was forced to peremptorily challenge two prospective jurors, Matthews and McGriff, from the panel “after each indicated they would infer guilt should the Defendant exercise her Fifth Amendment privilege against self-incrimination.” The record, as we read it, does not support this assertion.

That record of the voir dire examination, which is relied upon by the appellant, reads:

MR. CORNELIUS [Defense Counsel]: The Defendant does not have to prove her innocence, she has to prove nothing. The State must prove her guilt beyond and to the exclusion of every reasonable doubt. The Constitution of the United States gives my client the right to take the stand or not take the stand.
Would any of you hold it against her if she elected not to take the stand?
THE VENIRE: No.
MR. CORNELIUS: Would any of you think she must be hiding something or—
A JUROR: I might find it hard to accept, I would wonder why not.
MR. CORNELIUS: All right, sir. Thank you for that candor'.
A JUROR: I go along with this gentleman.
A JUROR: I might have doubts if she refused to take the stand. My thinking might be a little hesitant.
A JUROR: If I was accused of something I would want to take the stand in my own defense.
MR. CORNELIUS: All right. You’re Mr. Matthews?
A JUROR: Correct. If I was innocent I would want everybody to know it, I’d get up there and tell them about it.
MR. CORNELIUS: Thank you, Mr. Matthews, we appreciate your candor. That’s the same thing you feel?
A JUROR: Not me, I don’t think so.
A JUROR: I do.
MR. CORNELIUS: You do?
A JUROR: I go along with that also.
MR. CORNELIUS: That’s your feelings?
A JUROR: Yes, sir.
MR. CORNELIUS: If persons don’t take the stand they must be hiding something?
A JUROR: Well, presumably, I would think so.
MR. CORNELIUS: All right, sir. Let me ask all of you this collective question. If the State fails to prove its case beyond and to the exclusion of every reasonable doubt would all of you agree with me that your verdict must be not guilty?
THE VENIRE: Yes.
MR. CORNELIUS: Would all of you agree with me that if you had to go in and render a decision right now that your verdict would have to be not guilty?
THE VENIRE: Absolutely.
MR. CORNELIUS: We would tender the jury at this time, Your Honor.
Section 918.03, Florida Statutes (1981), provides in pertinent part:
A challenge for cause to an individual juror may be made only on the following grounds:
# $ ^ ' He
(10) The juror has a state of mind regarding the defendant, the case, the person alleged to have been injured by the offense charged, or the person on whose complaint the prosecution was instituted that will prevent him from acting with impartiality, but the formation of an opinion or impression regarding the guilt or innocence of the defendant shall not be a sufficient ground for challenge to a juror if he declares and the court determines that he can render an impartial verdict according to the evidence;
⅝ * * ⅜ * ⅜

In the instant case, both Matthews and McGriff declared they would require the state to prove its case beyond and to the exclusion of every reasonable doubt and afford the defendant the presumption of innocence, and the trial court determined they could render an impartial verdict according to the evidence by denying the challenge for cause.

The fact that an uninstructed jur- or would expect an innocent defendant to positively assert his innocence cannot come as a surprise to anyone. If all such jurors were summarily excluded, it is doubtful jury trials could be held at all. The real test is whether or not the prospective juror can lay aside all other considerations and render his verdict solely upon the evidence presented and the instructions on the law given him by the court. Singer v. State, 109 So.2d 7 (Fla.1959): Powell v. State, 131 Fla. 254, 175 So. 213 (1937); O’Connor v. State, 9 Fla. 215 (1860); Leon v. State, 396 So.2d 203 (Fla. 3d DCA), review denied, 407 So.2d 1106 (Fla.1981). The discretionary decision of the trial judge in this regard should not be disturbed unless error is manifest. Blackwell v. State, 101 Fla. 997, 132 So. 468 (1931).

AFFIRMED.

SHARP, J., concurs.

FRANK D. UPCHURCH, Jr., J., dissents with opinion.

FRANK D. UPCHURCH, Jr., Judge,

dissenting.

I respectfully dissent. The question of a juror’s competence is generally determined by the trial judge in his discretion, Singer v. State, 109 So.2d 7 (Fla.1959), this discretion “is subject to the essential demands of fairness” in order to preserve the defendant’s Sixth Amendment right to an impartial jury. Leon v. State, 396 So.2d 203 (Fla. 3d DCA), rev. denied, 407 So.2d 1106 (Fla.1981). See also United States v. Nell, 526 F.2d 1223 (5th Cir.1976); Peek v. State, 413 So.2d 1225 (Fla. 3d DCA 1982).

I agree with the majority that in determining the competence of a juror, the test is not whether the juror will be able to control any bias or prejudice but rather whether he can lay aside those considerations and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court. Singer v. State, 109 So.2d at 24. However, here, neither the prosecutor nor the court inquired as to whether the two prospective jurors could do this.

In Singer, the court stated that where there is any reasonable doubt as to a jur- or’s possessing the requisite state of mind so as to render an impartial verdict, the juror should be excused and the defendant given the benefit of the doubt. Id. at 23. The court further quoted from Powell v. State, 131 Fla. 254, 175 So. 213 (1937) and observed that:

The accused, guilty or innocent, is entitled to the presumption of innocence in the mind of every juror until every element of the offense charged against him has been proved by competent evidence adduced upon the trial beyond a reasonable doubt. This is not accomplished when a juror is taken upon a trial whose mind is in such condition that the accused must produce evidence of his innocence to avoid a conviction at the hands of that juror.

Id. at 24.

I believe that the defense demonstrated a basis for excluding the two prospective jurors, that being their candid belief that appellant’s failure to present evidence of her innocence would raise some question in their minds. When confronted with this apparent mindset, the trial court should have conducted a further inquiry or granted defense counsel’s challenges for cause and excluded the prospective jurors. Its failure to do either forced appellant to sacrifice two of the six peremptory challenges alloted to her by law and therefore I would reverse for a new trial. See Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); United States v. Daly, 716 F.2d 1499 (9th Cir.1983); United States v. Nell; Leon v. State.


text:
    CHASE ENTERPRISES, INC., a foreign corporation, and Plaza 7000 Associates, Ltd., a Connecticut limited partnership, Appellants, v. ALL-PROP REALTY ASSOCIATES, a Florida corporation, Appellee.
    No. 83-2714.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 1984.
    Rehearing Denied Dec. 17, 1984.

      Wallace, Engels, Pertnoy & Solowsky and Marlowe J. Blake, Miami, for appellants.
    Squire, Sanders & Dempsey and Fulvia A. Morris and Kenneth L. Ryskamp, Miami, for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Besett v. Basnett, 389 So.2d 995 (Fla.1980); O’Bryan v. Linton, 41 So.2d 169 (Fla.1949); Knowles v. Henderson, 22 So.2d 384 (Fla.1945); Clark v. Keyes Co., 172 So.2d 847 (Fla. 3d DCA 1965); Ramel v. Chasebrook Construction Co., 135 So.2d 876 (Fla. 2d DCA 1961).


author: ORFINGER, Judge.

text:
    Thomas HANKEY, Appellant, v. STATE of Florida, Appellee.
    Nos. 84-162, 84-203.
    District Court of Appeal of Florida, Fifth District.
    Oct. 18, 1984.
    Rehearing Denied Nov. 20, 1984.
    James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Judge.

This is an appeal from a sentence wherein the trial court departed from the sentencing guidelines. Fla.R.Crim.P. 3.701.

There was no error in departing from the suggested guideline sentence, because of the articulated reason that the crime imposed a severe and long lasting economic and emotional hardship on the victim. The trial court found that the emotional trauma to the victim was as severe as if inflicted with “fists or sticks or guns or knives,” and we find this to be a clear and convincing reason for departure. Therefore, no abuse of the judge's sentencing discretion has been demonstrated. Higgs v. State, 455 So.2d 451 (Fla. 5th DCA 1984). See also, Green v. State, 455 So.2d 586 (Fla. 2d DCA 1984).

Appellant contends also that “even if the court’s reasons for departure would legitimately support some guideline departure ... those reasons hardly justify its ‘leap’ of six (6) guideline categories, i.e., from ‘any non-state prison sanction’ to ten (10) years imprisonment without parole.” Appellant entered a negotiated plea in consolidated cases to one count of burglary of a dwelling, a second degree felony under section 810.02(3), Florida Statutes (1983) and one count of burglary of a structure, a third degree felony under the same statute. He was sentenced to consecutive terms of five years on each count.

The sentences are within the limits imposed by statute for the respective crimes, Section 775.082(3)(c) and (d), Florida Statutes (1983), and are therefore proper. Once clear and convincing reasons exist which cause the sentencing court to depart from the guidelines, the court may impose any sentence otherwise authorized by law. Section 921.001(5), Florida Statutes (1983).

AFFIRMED.

FRANK D. UPCHURCH, Jr., J., concurs.

SHARP, J., concurs in result only.