author: ADKINS, Justice.

text:
    J. Robert ROWE, Appellant, v. PINELLAS SPORTS AUTHORITY, et al., Appellees. PINELLAS RESORT ORGANIZATION, INC., et al., Appellants, v. PINELLAS SPORTS AUTHORITY, et al., Appellees.
    Nos. 65322, 65420.
    Supreme Court of Florida.
    Nov. 9, 1984.
    Rehearing Denied Nov. 21, 1984.

      George H. Bailey of Jones & Foster, West Palm Beach, for J. Robert Rowe; and Gerald F. Richman and Bruce A. Christensen of Floyd, Pearson, Richman, Greer, Weil, Zack & Brumbaugh, Miami, for Pinel-las Resort Organization, Inc.
    Julian Clarkson, C. Lawrence Stagg and Dennis R. Ferguson of Holland & Knight, Tallahassee, Van B. Cook, Asst. County Atty., Clearwater, and Michael S. Davis, City Atty., St. Petersburg, for Pinellas Sports Authority, Pinellas County and City of St. Petersburg; and Jim Smith, Atty. Gen. and J. Terrell Williams, Asst. Atty. Gen., Tallahassee, for State of Florida, Department of Revenue.
   ADKINS, Justice.

These are consolidated appeals from a final judgment entered by the Circuit Court of Pinellas County validating revenue bonds to be used to finance a sports stadium. We have jurisdiction. Art. V, § 3(b)(2), (7), Fla. Const.

In 1977 the Florida legislature enacted what is now section 125.0104, Florida Statutes (1983), the “Local Option Tourist Development Act.” This statute authorizes Florida’s counties, after referendum to levy a tourist development tax, to be used for certain enumerated purposes.

Pursuant to its statutory authorization, in 1978 Pinellas County, after a referendum, adopted ordinance 78-20. Section 2 of that ordinance set forth the “tourist development plan” whereby all receipts from the tax were to be placed in a trust fund “to be used exclusively for tourist advertising and promotion for Pinellas County and its committees.” Section 3 of the ordinance, not a part of the tourist development plan, provided that all or any portion of the tax revenues might be pledged by the Board of County Commissioners to secure revenue bonds issued for certain projects, including “convention centers, sports arenas, sports stadiums, coliseums, or auditoriums.”

In 1982 ordinance 82-19 was enacted which amended ordinance 78-20. The amended ordinance expanded the tourist development plan (section 2) of the first ordinance to include purposes other than “tourist advertising and promotion,” specifically, the construction of sports stadiums.

In November 1983 the Board of County Commissioners adopted a resolution authorizing the Pinellas Sports Authority to proceed with development of a bond issue to finance the stadium. On December 20, 1983, Pinellas Sports Authority [hereinafter PSA], the City of St. Petersburg [hereinafter city], and Pinellas County [hereinafter county] entered into an Inter-local Agreement to cooperate in the acquisition, construction and financing of the stadium. The Interlocal Agreement called for the PSA to issue revenue bonds. The city committed to pay a portion of the debt service on the bonds from the proceeds derived by the city from its excise taxes. The city’s excise taxes consist of guaranteed entitlement funds and sales tax.

The adoption of the Interlocal Agreement prompted legal action by the Pinellas Resort Organization Holiday House Motel-Apts, Inc., Harold E. Slaughter and William A. Tolliver in the form of an action seeking declaratory and injunctive relief. A bond validation proceeding was concurrently brought by PSA, the county and the city. The trial judge consolidated the two cases for trial and ultimately for appeal to this Court. After trial, the judge entered a final judgment of validation.

Before proceeding to the merits of this action, we will briefly address jurisdiction. Two actions involving these bonds were filed in the circuit court — an action seeking declaratory relief and a bond validation proceeding. The circuit court judge entered an order consolidating the two cases. There is no question of our jurisdiction over the bond validation proceedings. Art. V, § 3(b)(2), Fla. Const. And since many of the same issues are involved in the declaratory relief action, it is necessary and proper to the complete exercise of our jurisdiction that we dispose of these common issues at one time. Therefore, as we are authorized to do by our constitution, we accept jurisdiction in the declaratory relief action. Art. V, § 3(b)(7), Fla. Const. See also Mize v. County of Seminole, 229 So.2d 841 (Fla.1969).

On the merits, appellants argue that a number of infirmities in the issuance process should prevent the validation of these bonds. Chief among these are alleged violations of the Florida Sunshine Law, section 286.011(1), Florida Statutes (1983). This law provides:

All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation or political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule or formal action shall be considered binding except as taken or made at such meeting.

Id. (emphasis supplied).

The applicable language of the statute states that meetings of “an agency or authority ... of a political subdivision” are subject to the requirements of the Sunshine Act. The record shows, however, that no meetings involving these bonds occurred with two or more members of any one of the three governmental entities present. We do not construe that language to apply to the gatherings here between individual members and staff of the different governmental entities. By definition, then, no violation of the law occurred. There was never any meeting where any two individuals with decision-making capacity were present. The individuals could only report back to their respective governmental bodies. The subsequent discussions and decisions of all three of the governing bodies took place in open, public meetings. Appellants’ reliance on Wood v. Marston, 442 So.2d 934 (Fla.1983), is misplaced. In that case we held that the search-and-screen committee was clearly a “board or commission” of a state agency subject to the Sunshine Law.

Even if we were to include the gatherings that occurred here under the definition of the Sunshine Law, these gatherings do not rise to the level of decision-making which is required to violate the act. The record does show that some private discussions occurred where the stadium financing was mentioned. However, since no two individuals who were members of the same governing body were present at any one of these discussions, no decision-making official acts could occur that would violate the act.

Appellants also contend that the original ordinance, the referendum, and the amended ordinance were rendered invalid because the statutory requirements of the Tourist Development Act were not complied with. First, appellants contend that the initial Ordinance 78-20 is invalid because it allegedly does not comply with the requirements of the statute. In permitting Florida counties to levy a Tourist Development Tax, section 125.0104(4)(a), Florida Statutes (1983), provides in pertinent part:

(a) The tourist development tax shall be levied and imposed pursuant to an ordinance containing the county tourist development plan prescribed under paragraph (c), enacted by the governing board of the county. The ordinance levying and imposing the tourist development tax shall not be effective unless the electors of the county or the electors in the sub-county special district in which the tax is to be levied approve the ordinance authorizing the levy and imposition of the tax, in accordance with section (6).

The statute further prescribes certain requisites for the ordinance levying the tax in sections 125.0104(4)(b) and (c):

(b) At least 60 days prior to the enactment of the ordinance levying the tax, the governing board of the county shall adopt a resolution establishing and appointing the members of the county tourist development council, as prescribed in paragraph (e), and indicating the intention of the county to consider the enactment of an ordinance levying and imposing the tourist development tax.
(c) Prior to the enactment of the ordinance levying and imposing the tax, the county tourist development council shall prepare and submit to the governing board of the county for its approval a plan for tourist development. The plan shall set forth the anticipated net tourist development tax revenue to be derived by the county for the 24 months following the levy of the tax; the tax district in which the tourist development tax is proposed; and a list, in the order of priority, of the proposed uses of the said tax revenue by specific project or special use as the same are authorized under subsection (5). The plan shall include the approximate cost or expense allocation for each specific project or special use.

The pertinent portions of Pinellas Ordinance 78-20 are as follows:

Section 2. The tax revenues received pursuant to this ordinance shall be used to fund the Pinellas County Tourist Development Plan, which is hereby adopted as follows:
TOURIST DEVELOPMENT PLAN
The anticipated annual revenue for a two percent (2%) tourist development tax for all of Pinellas County over a 24 month period is $4.8 million, less costs of administration as retained by the Department of Revenue, State of Florida. The tourist development tax for Pinellas County is to strengthen our local economy and increase employment by investing the total receipts of the tourist development tax into a trust fund to be used exclusively for tourist advertising and promotion for Pinellas County and its communities.
Section 3. All or any portion of the revenues raised by the tax hereby levied may be pledged by the Board of County commissioners to secure and liquidate revenue bonds issued by the county for the acquisition, construction, extension, enlargement, remodeling, repair, improvement, maintenance, operation or promotion of one or more publicly owned and operated convention centers, sports arenas, sports stadiums, coliseums or auditoriums within the boundaries of Pinel-las County which projects are set forth within this ordinance or may be hereinafter adopted by appropriate amendment to this ordinance, as one of the uses to be made of the tourist development tax hereby levied.

We hold that ordinance 78-20 fully complies with the statute’s mandates. The preamble to ordinance 78-20 recites that the Pinellas County Board of County Commissioners adopted a resolution in 1977 establishing and appointing the members of the Pinellas County Tourist Development Council. The record shows that prior to the enactment of the ordinance, at a public hearing, the Tourist Development Council presented its plan for tourist development to the commission. Further, the plan itself includes an estimate that tourist development tax revenues for 24 months will be $4.8 million. And, the plan requires “investing the total receipts” in a trust fund “to be used exclusively for tourist advertising and promotion for Pinellas County and its communities.” A reasonable interpretation of this language, and appellants concede as much, is that it requires the entire estimated $4.8 million to be spent on one special use, tourist advertising and promotion. Nevertheless, appellants argue that the ordinance is infirm because section 3 of the ordinance is in conflict with section 2 because it permits use of the revenues to be pledged, inter alia, for construction of a sports complex. We agree with appel-lees’ contention that construction of a sport stadium can be included in the term “tourist advertising and promotion.” Nevertheless, we now hold that section 2 is complete within itself.

Appellants also argue that the ballot question presented to the voters did not apprise the voters that a stadium project could be the subject of the tourist tax revenues. The Board of County Commissioners certified the passage of the following ballot question regarding ordinance 78-20:

Shall Pinellas County Ordinance No. 78-20 be approved? This ordinance levies and imposes a countywide two (2%) percent tourist development tax on each whole or major fraction of each dollar of the total rental charge for the lease or rental of any tourist accomodations or living quarters for a term of six (6) months or less. Such tax shall be used to promote and develop the tourist industry in Pinellas County.

Florida law does not require that every substantive provision of a proposed ordinance be reflected on a referendum ballot. All that is required is that the voters be given fair notice of the question to be decided. This Court so stated in Hill v. Milander, 72 So.2d 796, 798 (Fla.1954):

It is a matter of common knowledge that many weeks are consumed, in advance of elections, apprising the electorate of the issues to be determined and that in this day and age of radio, television, newspaper and the many other means of communicating and disseminating information, it is idle to argue that every proposition on a ballot must appear at great and undue length.

Before this election, the full text of the ordinance had been advertised and debated at a public hearing called to consider it.

In Miami Dolphins Ltd. v. Metropolitan Dade County, 394 So.2d 981 (Fla.1981), a case involving a challenge to a tourist development tax referendum held in Dade County under the statute here involved, this Court quoted the foregoing language from Hill v. Milander with approval, after first saying:

While there certainly are many details of the plan not explained on the ballot, we do not require that every aspect of a proposal be explained in the voting booth.

894 So.2d at 987. The Pinellas County ballot sufficiently complied with the express requirements of the Tourist Development Act and with the Court’s previous holdings.

Appellants also argue that amended ordinance 82-19 is invalid because it was not submitted to a referendum of Pinellas County voters as was the initial ordinance. However, there is no requirement in the Tourist Development Act that a referendum be held to ratify an amendment. The statutory requirement for subsequent amendments to a tourist development plan is stated in section 125.0104(4)(d):

After enactment of the ordinance levying and imposing the tax, the plan of tourist development may not be substantially amended except by ordinance enacted by an affirmative vote of a majority plus one additional member of the governing board.

Additionally, section 3 of the ordinance itself provided that the revenues could be used for certain enumerated purposes or others “hereinafter adopted by appropriate amendment to this ordinance.” The record shows that at the public hearing held in July, 1982, the four commissioners present voted unanimously in favor of the amendment, providing the “super-majority” required by both the Tourist Development Act and the ordinance itself. Therefore, amended ordinance 82-19 was validly enacted.

Appellants also contend that Pinel-las County’s tourist development tax revenues may not be pledged to pay off bonds that have been issued by another governmental entity, in this case, the PSA. However, section 8(c) of the PSA charter, chapter 77-635, Laws of Florida, provides that the county is authorized

to enter into cooperative agreements with the authority non ad valorem moneys of county ... to the payment of ... debt service costs ... or any part thereof of the authority while bonds issued by the authority.

The PSA charter empowers the county to pledge non-ad valorem moneys of the county, including tourist development tax revenues, to the payment of obligations issued by the Pinellas Sports Authority.

When a special act (such as the PSA charter) and a general law conflict, the special act will prevail. State ex rel. Johnson v. Vizzini, 227 So.2d 205 (Fla.1969). Because section 8(c) of the PSA charter was enacted by subsequent special act, the authority for the pledging of tourist development tax revenues by the county to secure obligations issued by the PSA controls over any limitation imposed upon such a pledge by section 125.0104(5), Florida Statutes (1983).

Appellant Rowe also contends that article VII, section 12, of the Florida Constitution requires that a referendum be held to validate this bond issue because the Interlocal Agreement contains a contingent contractual commitment by the city to impose a minimum ad valorem tax. We do not agree that a referendum was required in this instance.

The city pledged proceeds from its guaranteed entitlement funds and sales tax to secure its obligations under the Interlocal Agreement. Section 218.23, Florida Statutes (1983), specifies the requirements which must be fulfilled by the city for it to be eligible to receive the guaranteed entitlement funds in any fiscal year. The statute requires that the city shall have:

Levied ... ad valorem taxes, exclusive of taxes levied for debt service or other special millages authorized by the voters, to produce the revenue equivalent to a millage rate of 3 mills on the dollar based on the 1973 taxable values ... or, in order to produce revenue equivalent to that which would otherwise be produced by such 3-mill ad valorem tax, to have received a remittance from the county pursuant to s. 125.01(6)(a), collected on occupational license tax or a utility tax, levied an ad valorem tax, or received revenue from any combination of these four sources_ This paragraph requires only a minimum amount of revenue to be raised from the ad valorem tax, the occupational license tax, and the utility tax. It does not require a minimum millage rate.

§ 218.23(l)(c), Florida Statutes (1983) (emphasis added).

The statute, then, merely requires that a specified amount of revenue be collected from any combination of utility tax, occupational license tax, or ad valorem tax. Under this statute, the city has the option to establish its eligibility to receive the guaranteed entitlement funds without regard to any ad valorem levy. The record shows that the city has complied with that eligibility requirement. The covenant by the city to remain eligible to receive the guaranteed entitlement funds in no way legally obligates the city to levy a minimum ad valo-rem tax. The city’s covenant is merely to remain eligible to receive guaranteed entitlement funds. No contractual obligation to levy an ad valorem tax exists.

No pledge of non-ad valorem revenue necessarily requires the imposition of an ad valorem tax here. All that is necessarily required by the Interlocal Agreement is the collection of sufficient revenue from among the alternative sources permitted by the statute. For this reason, the case is distinguishable from County of Volusia v. State, 417 So.2d 968 (Fla.1982); and State v. Halifax Hospital District, 159 So.2d 231 (Fla.1963), the two cases upon which appellant relies. There is only an incidental effect on use of the ad valorem taxing power occasioned by the pledging of the sources of revenue here. See City of Palatka v. State, 440 So.2d 1271 (Fla.1983); Jacksonville Shipyards, Inc. v. Jacksonville Electric Authority, 419 So.2d 1092 (Fla.1982); State v. Alachua County, 335 So.2d 554 (Fla.1976); Town of Medley v. State, 162 So.2d 257 (Fla.1964).

Appellants lastly contend that Florida’s tourist development tax violates the equal protection clause of the Florida Constitution because it does not expressly include cooperatives in the statutory taxing scheme. This tax has been previously upheld against constitutional attack by this Court in Miami Dolphins. Appellants have not met their burden of showing that this classification is not reasonably related to some legitimate legislative purpose. Matthews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976).

Finally, there is no merit to appellants’ argument that the final judgment of the trial court does not contain ample findings and conclusions to support validation of the bonds.

Accordingly, the judgment of the trial court validating these bonds is affirmed.

It is so ordered.

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


source: Caselaw Access Project

author: PER CURIAM. McDONALD, Judge,

license: Public Domain

text:
    Kenneth Wayne HARDWICK, Appellant, v. STATE of Florida, Appellee.
    No. 63500.
    Supreme Court of Florida.
    Nov. 21, 1984.
    Rehearing Denied Jan. 28, 1985.
    Jerry Hill, Public Defender and Karla J. Staker, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for appellant.
    Jim Smith, Atty. Gen. and Charles Core-es, Jr., Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

This is an appeal from a conviction of first-degree murder and sentence of death. We have jurisdiction. Art. Y, § 3(b)(1), Fla.Const. We affirm the conviction and the sentence.

Hardwick, an itinerant housepainter, was charged with first-degree murder, sexual battery, robbery and burglary in the death of a seventy-two-year-old widow in Sebring, Florida. At some time in the fall of 1980, Hardwick had painted the victim’s bedroom, living room and dining room and during that period had been seen riding as a passenger with the victim in her car. The victim was discovered lying under the covers of her bed with a pillow over her face. She had been beaten about the face, raped and strangled. Her house bore signs of forced entry and her purse and its contents, several necklaces and her car were missing. The car was later found in Jacksonville, several blocks from the Greyhound Bus Terminal. Hardwick’s fingerprint was found on a heater knob to the left of the steering wheel.

On the day of the murder, Hardwick was drinking with friends. When he had exhausted his funds and was unable to borrow more, he left the bar, saying he was going to find someone from whom he could borrow some money. He returned several hours later with a wad of bills. Witnesses testified he appeared nervous and shaken.

Hardwick’s former girlfriend, at the time of trial an inmate at Indiana Women’s Institution and involved with Hardwick in a custody dispute over their child, testified that Hardwick had called her after the murder and confessed and asked her to provide an alibi for him. She testified that Hardwick had told her that he and a friend named Mike had approached the victim about a loan. When she refused and threatened to call the police, Hardwick became angry, hit her, raped and strangled her. Afterwards, he and the friend decided to make it look like a robbery, so they damaged the house and stole the car, purse and jewelry. Hardwick left Florida by bus. Although she testified that Hardwick had told her this story in January, 1981, the girlfriend did not disclose these details until May, 1982.

Hardwick was convicted on all four counts. The jury recommended and the court imposed the death penalty.

Appellant’s first point attacks the validity of the conviction based on erroneous use of statistics by the prosecutor in his closing arguments. Laboratory tests had shown that the victim and the defendant both had type A blood. The defendant was also a secretor — his blood type is ascertainable through analysis of his other bodily fluids — but the victim’s secretor status was undetermined. Semen stains on the victim’s sheets showed the type A se-cretor blood group. The prosecution presented evidence that forty percent of the population have type A blood and eighty percent of the population are se-cretors. Thus, the prosecution argued that only thirty-two percent of the population would have type A secretor blood type and only approximately half that percentage— the males — could have committed the crime.

Appellant, on the other hand, argues that the evidence is consistent with a non-se-cretor having committed the crime. If the victim were a secretor and the perpetrator were not, the victim’s vaginal secretions would account for the blood group evidence. Thus, appellant reasons, fifty-two percent of the population would have blood types not inconsistent with the evidence and that the male half of that group, or twenty-six percent of the population at large, could have committed the crime.

Further, the prosecutor in closing argument suggested that the percentage of possible perpetrators would have to be factored by the percentage of the world population which was in Sebring, decreasing further the percentage of the population available for consideration as suspects. Were this the extent of the prosecutor’s argument and evidence, appellant’s concern that the misapplication of statistics could have improperly influenced the jury might have some merit. However, the capstone of the prosecution’s argument and evidence was the discovery of appellant’s palm print on the bottom sheet of the victim’s bed. Whatever statistical misdirection may have gone before, the prosecutor was on factually and statistically solid ground when he argued that only one man in the entire population could have left that evidence. We find no grounds to reverse the conviction on this point.

Appellant also contends that the evidence presented was legally insufficient to support conviction on the robbery count. We disagree. The issue was one of fact and the jury’s decision was well within the range of reasonable inferences to be drawn from the facts presented. We have reviewed the entire record and find nothing to warrant reversing the conviction.

Appellant raises six objections to the sentencing proceeding. Only one point, that which addresses the propriety of the aggravating factors, merits discussion. In sentencing appellant to death, the trial court found no mitigating circumstances and four aggravating factors — the defendant had previously been convicted of a felony involving violence; the murder occurred during commission of a felony; the murder was committed for pecuniary gain; the murder was cold, calculated and premeditated.

We cannot agree that the facts support a finding that this murder was cold, calculated and premeditated. This aggravating factor requires a degree of premeditation exceeding that necessary to support a finding of premeditated first-degree murder. Smith v. State, 424 So.2d 726 (Fla.1982), cert. denied, _ U.S. _, 103 S.Ct. 3129, 77 L.Ed.2d 1379 (1983); Jent v. State, 408 So.2d 1024 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982). The only evidence presented or argued as to this factor was that Hardwick intended to rob the victim and that once he began to choke or smother her, it would have taken more than a minute for her to die. The premeditation of a felony cannot be transferred to a murder which occurs in the course of that felony for purposes of this aggravating factor. What is required is that the murderer fully contemplate effecting the victim’s death. The fact that a robbery may have been planned is irrelevant to this issue. Gorham v. State, 454 So.2d 556 (Fla.1984). Neither can the fact that it takes the victim a matter of minutes to die once the process begins support this finding. The aggravating factor emphasizes cold calculation before the murder itself. See Cannady v. State, 427 So.2d 723 (Fla.1983) (fact that victim was shot five times does not support finding that murder exhibited heightened premeditation). On the facts presented here, we cannot say this factor was proved beyond a reasonable doubt.

The finding that appellant had previously been convicted of a felony involving violence was supported by the contemporaneous convictions for robbery and sexual battery. This Court has previously held that multiple convictions from the same trial may be considered in sentencing. King v. State, 390 So.2d 315 (Fla.1980), cert. denied, 450 U.S. 989, 101 S.Ct. 1529, 67 L.Ed.2d 825 (1981); Lucas v. State, 376 So.2d 1149 (1979). We note that we have never considered the exact situation which now confronts us — convictions for violent felonies committed against the murder victim in the course of action which led to the murder itself. In Elledge v. State, 346 So.2d 998 (Fla.1977), we said that the purpose for considering previous violent felony convictions is to engage in character analysis to ascertain whether the defendant exhibits a propensity to commit violent crimes. Where the evidence supports a finding of premeditated murder or where the violent felony is not a necessarily included element of felony murder, we cannot say that the separate acts of violence on one victim are less revealing of the violent propensities of the perpetrator than contemporaneous acts of violence on separate victims. We find no error here.

Although we find one aggravating factor to have been improperly applied, three valid ones remain. In the absence of any mitigating circumstances, imposition of the death penalty is proper. We have also considered the issue of proportionality and find the death penalty appropriate to the case before us. Accordingly, the conviction and sentence are affirmed.

It is so ordered.

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

McDONALD, J., concurs in result only with an opinion, in which OVERTON and EHRLICH, JJ., concur.

McDONALD, Judge,

concurring in result only.

I agree with majority’s affirmance of the conviction and sentence in this case. I disagree with that portion of the opinion which finds that contemporaneous convictions for violent felonies committed against the murder victim during the course of action leading to the murder may be used to establish the aggravating circumstances of previous convictions of violent felonies. See § 921.141(5)(b), Fla.Stat. (1981). I would hold that those violent felonies committed upon the victim during or close to the time when the defendant commits the murder may not be used to establish this aggravating circumstance.

We have said that this aggravating circumstance may be found where the violent felony occurred subsequent to the murder but the convictions are returned jointly. King v. State, 390 So.2d 315, 320-21 (Fla.1980), cert. denied, 450 U.S. 989, 101 S.Ct. 1529, 67 L.Ed.2d 825 (1981). However, as the majority opinion recognizes, this Court has never before permitted contemporaneous violent felonies committed upon the murder victim by the defendant to establish the aggravating circumstance of previous convictions for violent felonies. I do not believe that the legislature, in enacting subsection 921.141(5)(b), intended such contemporaneous behavior to be counted as a prior history of violence. In this case such conduct aggravated the offense under the provisions of subsection 921.141(5)(d). It should not be counted twice. Therefore, I concur only in the result reached by the majority.

OVERTON and EHRLICH, JJ., concur.


author: McDonald, justice.

text:
    Evelyn R. FLACK, Petitioner, v. Bob GRAHAM, et al., Respondents.
    No. 63919.
    Supreme Court of Florida.
    Nov. 29, 1984.
    See also Fla.App., 419 So.2d 1124.

      Rivers Buford, Jr., and Keith J. Kinder-man, Tallahassee, for petitioner.
    Walter M. Meginniss, Asst. Atty. Gen., Tallahassee, for respondents.
   ORDER ON SUGGESTION FOR ISSUANCE OF WRIT OF MANDAMUS

McDonald, justice.

In July we ordered the state to pay Flack the salary she would have received if she had served the full term of office as a county judge. She has now filed a suggestion for issuance of a writ of mandamus seeking interest “on each monthly installment of back pay from the due date thereof.” (Flack now concedes that the state properly withheld retirement, social security, and income tax contributions.) The comptroller’s office contends that Flack is not entitled to interest.

We agree with the comptroller’s office. As a general rule, a government is not liable for interest in the absence of an express statutory provision or a stipulation by the government that interest will be paid. United States v. North Carolina, 136 U.S. 211, 10 S.Ct. 920, 34 L.Ed. 336 (1890); United States ex rel. Angarica de la Rua v. Bayard, 127 U.S. 251, 8 S.Ct. 1156, 32 L.Ed. 159 (1888); United States v. Sherman, 8 Otto 565, 98 U.S. 565, 25 L.Ed. 235 (1878); Treadway v. Terrell, 117 Fla. 838, 158 So. 512 (1935). Immunity from interest is an attribute of sovereignty, implied by law for the benefit of the state. Treadway. This immunity, however, may be waived.

Where statutory authority to sue a State is given, the implied immunity of the State from payment of interest upon obligations of the sovereign State may be waived or the payment of such interest may be impliedly authorized or assented to by the statute; and interest may be awarded on such implied statutory authority when the nature of claims on which suits may be maintained and the object designed in permitting suits against the State or its agencies warrant it.

Id. at 854-55, 158 So. at 518.

An implied waiver of immunity for interest has been found in several Florida cases. Brooks v. School Board of Brevard County, 419 So.2d 659 (Fla. 5th DCA 1982); Florida Livestock Board v. Gladden, 86 So.2d 812 (Fla.1956); Treadway. On the other hand, statutes have also been strictly construed to prevent payment of interest by the state. Department of Revenue v. Goembel, 382 So.2d 783 (Fla. 5th DCA 1980); Division of Administration, State Department of Transportation v. Shepard, 382 So.2d 45 (Fla. 2d DCA 1979), cert. denied, 388 So.2d 1118 (Fla.1980). In Brooks, Gladden, and Treadway the legislature had authorized suit against the various agencies involved, but the applicable statutes were silent as to interest. Goembel and Shepard, however, are more closely akin to State ex rel. Four-Fifty Two-Thirty Corp. v. Dickinson, 322 So.2d 525 (Fla.1975), and Mailman v. Green, 111 So.2d 267, 268 (Fla.1959), where we said

strictly speaking this was not an action against the state for recovery of money but one against the Comptroller predicated on the assertion that petitioners had a clear legal right to coerce the performance by him of a duty, namely, the payment to them of the interest described.

In Mailman the Court found no statutory authority for paying interest on refunded taxes and went on to say:

The money was not inequitably withheld by the state and used by it to the detriment of petitioners. The matter was simply in suspense, pending settlement by a court of a dispute to which the state was not directly but only vicariously interested.

Id. at 269. Finally, the Mailman court distinguished Treadway and Gladden and refused to find an implied liability for the payment of interest. Id. This case is more similar to Mailman than to the cases which have allowed interest because Flack has not shown that she has a clear legal right to coerce the comptroller to pay this interest.

In Board of Commissioners of Jackson County v. United States, 308 U.S. 343, 352, 60 S.Ct. 285, 289, 84 L.Ed. 313 (1939), the Court said that

interest is not recovered according to a rigid theory of compensation for money withheld, but is given in response to considerations of fairness. It is denied when its exaction would be inequitable.

In choosing between innocent victims the Court found it would not be equitable to put the burden of paying interest on the public. This case is similar to Jackson County in that we are left with two innocent victims — the state and Flack. Flack has made a full recovery of the salary she would have received if she had filled the complete term as county judge. It would be grossly inequitable to make the citizens of Florida also pay interest. We therefore refuse to mandamus payment of the interest sought here and dismiss the petition.

It is so ordered.

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

ADKINS, J., dissents.


author: ALDERMAN, Justice.

text:
    James Franklin ROSE, Appellant, v. STATE of Florida, Appellee.
    No. 63996.
    Supreme Court of Florida.
    Dec. 6, 1984.
    Rehearing Denied Jan. 24, 1985.

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

James Franklin Rose appeals his sentence of death. Finding no reversible error, we affirm.

In his previous appeal from his convictions for the murder and the kidnapping of eight-year-old Lisa Berry, we affirmed his convictions and life sentence for the kidnapping, but we reversed the death sentence and remanded for a new sentencing hearing because the trial court reversibly erred in giving the “Allen charge” during the penalty phase of the trial. Rose v. State, 425 So.2d 521 (Fla.1982), cert. denied, 461 U.S. 909, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983).

The jury, in the first sentencing proceeding, ultimately recommended the death penalty. In our decision vacating the death sentence, we said that when the jury passed a note to the judge asking for instruction because they were tied 6 to 6, the trial judge should have advised them that it was not necessary to have a majority reach a sentencing recommendation. We held that there was no reason to give the “Allen charge” during the penalty phase because if seven jurors do not vote to recommend death, the recommendation is life.

Upon remand, a new sentencing hearing was held, and evidence was presented by both the state and Rose. The jury recommended by a vote of 11 to 1 that Rose be sentenced to death, and the trial court imposed the death sentence. The court found no mitigating circumstances and found the aggravating circumstances that Rose was under sentence of imprisonment when he committed the murder because he was on parole at the time, that he had been previously convicted of a felony involving the use or threat of violence, and that the murder was committed while he was engaged in the commission of a kidnapping.

Rose now challenges his sentence of death on seventeen grounds, none of which we find warrant reversal of his sentence and only a few of which merit discussion.

Rose contends that the prosecutor committed prejudicial error by commenting on Rose’s silence during his opening statement to the jury. He concedes, however, that he made no objection to this comment and acknowledges that an objection and motion for mistrial are required for reversal under our decision in Clark v. State, 363 So.2d 331 (Fla.1978). He argues that death penalty cases are different, and therefore we should consider this argument despite his failure to object. We disagree and hold that the holding in Clark, that a contemporaneous objection is necessary at the time an improper comment is made, is applicable to the present case. By Rose’s failure to object at the penalty proceeding, he waived his right to object and cannot now raise that issue on appeal. Simpson v. State, 418 So.2d 984 (Fla.1982), cert. denied, 459 S.Ct. 1156, 103 S.Ct. 801, 74 L.Ed.2d 1004 (1983).

Rose also argues that we cannot properly affirm a sentence of death because the jury in the first sentencing proceeding passed a note to the judge indicating that they needed instruction because they were tied 6 to 6 and no one at the moment would change. Rose maintains that the note to the jury in the first sentencing proceeding was tantamount to a jury recommendation of life and that this purported life recommendation should be considered the advisory sentence upon which his sentence should be based. We have already implicitly decided this issue against Rose in his first appeal when we remanded for a new sentencing hearing. The note of the jury did not rise to the level of an advisory recommendation of the sentence to be imposed. The advisory recommendation of the jury following the prior sentencing hearing was death, the same as the jury recommendation in the sentencing proceeding presently before us for review.

Rose contends that the trial court reversibly erred in denying his motion for an updated presentence investigation report. Denial of this report, he contends, deprived him of the right to an equal opportunity to present relevant evidence concerning the last six years of his life.

There is no requirement that a presen-tence investigation report be ordered in capital cases. We have held that the ordering of a presentence report is discretionary in capital cases, and the failure of the trial court to order such report does not constitute reversible error. Harich v. State, 437 So.2d 1082 (Fla.1983), cert. denied, _ U.S. _, 104 S.Ct. 1329, 79 L.Ed.2d 724 (1984); State v. Purwin, 405 So.2d 970 (Fla.1981); Thompson v. State, 389 So.2d 197 (Fla.1980).

Regarding defendant’s argument that the court erred in not granting his second motion for continuance of his sentencing proceeding made on the day of trial, we hold that the trial court did not abuse his discretion in denying this motion. In our recent case of Williams v. State, 438 So.2d 781 (Fla.1983), cert. denied, _ U.S. _, 104 S.Ct. 1617, 80 L.Ed.2d 146 (1984), we reiterated our earlier holding in Cooper v. State, 336 So.2d 1133 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977), wherein we announced: “While death penalty cases command our closest scrutiny, it is still the obligation of an appellate court to review with caution the exercise of experienced discretion by a trial judge in matters such as a motion for a continuance.” 336 So.2d at 1138. In Magill v. State, 386 So.2d 1188 (Fla.1980), cert. denied, 450 U.S. 927, 101 S.Ct. 1384, 67 L.Ed.2d 359 (1981), we held that denial of a motion for continuance should not be reversed unless there has been a palpable abuse of discretion and that this abuse must clearly and affirmatively appear in the record. No such palpable abuse of discretion has been demonstrated in the present case.

Further, we find no reversible error in the trial court’s instructions to the jury. The instructions did not preclude the jury from making a determination as to whether the evidence presented supported the aggravating circumstance of Rose’s being on parole when he committed the murder. We also reject Rose’s argument that, because the aggravating circumstance that he was under imprisonment at the time of the murder was not found by the trial court in its original sentencing, it was reversible error for the trial court to instruct on this circumstance and to find its existence in the present sentencing proceeding. Rose was originally sentenced to death after a jury recommendation of death. The trial court found no mitigating factors. We remanded this case for a new sentencing hearing before a jury. Evidence was presented by both sides. The jury recommended death, and the trial court resentenced Rose to death, finding one additional aggravating factor and no mitigating factor. This did not violate Rose’s right against double jeopardy and was not error.

We also hold that it was not reversible error for the trial court to overrule Rose’s objection to the introduction of prior convictions and that the court did not err in finding that Rose had been previously convicted of a felony involving the use or threat of violence to the person. Rose was previously charged and convicted of burglary with intent to commit rape.

Rose relies on Mann v. State, 420 So.2d 578 (Fla.1982), to support his contention that this aggravating circumstance was improperly found. In Mann’s original sentencing proceeding, the state introduced a copy of a conviction of burglary in Mississippi. We remanded because we found that burglary is not a crime of violence on its face. We expressly stated: “We are not presented with a copy of the Mississippi charge document and, thus, cannot determine whether it alleged, and the jury convicted him of, a breaking with intent to commit a crime of violence.” 420 So.2d at 581 (emphasis supplied). In his subsequent appeal from his resentencing to death, where the trial court again found that the prior Mississippi conviction established the aggravating factor of previous conviction of a violent felony, we affirmed and held this circumstance to have been properly found because “[t]he state remedied this omission on resentencing, and the proof—the indictment, the conviction, and the victim’s testimony—establishes a prior conviction of a violent felony.” Mann v. State, 453 So.2d 784 (Fla.1984). In this second Mann decision, we reiterated that in the first Mann appeal, we could not determine whether the charging document alleged and whether Mann was convicted of breaking with intent to commit a crime of violence. In the present case, the charging document and the judgment and sentence in the record before us establish that Rose was previously convicted of breaking and entering with intent to commit a crime of violence — rape.

Accordingly, finding no reversible error, we affirm the sentence of death.

It is so ordered.

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

OVERTON and McDONALD, JJ., concur in result only.

      . Rose kidnapped Lisa Berry from a bowling alley on the evening of October 22, 1976, and murdered her. Four days after her disappearance, her nude body was found in a canal located ten miles from the bowling alley. An autopsy revealed that she had died as a result of severe head injuries caused by blunt force.

      . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896); Fla.St.Jury Instr. (Crim.) 2.21.

      . He argues that he was denied an impartial jury sentencing proceeding because the state exercised its peremptory challenge to exclude a certain prospective juror; that he was denied a fair sentencing hearing because the trial court denied his request that the jury be instructed on the alternative definitions of first-degree murder; that the trial court reversibly erred in denying his request to instruct the jury on the rule of circumstantial evidence; that the prosecutor committed fundamental error during his opening statement; that the trial court reversibly erred in overruling Rose’s objection to the introduction of the autopsy photograph; that the trial court reversibly erred in overruling his objection to introduction of the certified parole certificate; that the trial court reversibly erred in sustaining the state’s objection to a question posed by defense counsel to his witness; that this Court cannot properly affirm a sentence of death where, in the first sentencing proceeding, the jury passed a note to the judge indicating that they were tied 6 to 6; that the trial court reversibly erred in sustaining the state's objection to a hypothetical question posed by defense counsel to his expert witness; that the trial court reversibly erred in not appointing counsel of his choice; that the court reversibly erred in denying his motion for an updated PSI; that certain comments made by the prosecutor denied him a fair sentencing hearing; that the trial court reversibly erred in not granting him continuance; that the trial court reversibly erred in instructing the jury on the aggravating circumstance that the murder was committed by a person under sentence of imprisonment; that the trial court reversibly erred in failing to instruct the jury on all of the aggravating circumstances; that this Court should reduce his sentence to life on the basis of the jury’s advisory life recommendation; and that the trial court reversibly erred in overruling his objection to introduction of evidence of prior convictions and in finding that he had been previously convicted of a crime involving violence.


author: SHAW, Justice.

text:
    STATE of Florida, Petitioner, v. Cleo D. LeCROY and Jon M. LeCroy, Respondents.
    No. 64744.
    Supreme Court of Florida.
    Dec. 13, 1984.
    Rehearing Denied Jan. 24, 1985.

      Jim Smith, Atty. Gen., and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for petitioner.
    James L. Eisenberg of Green, Eisenberg & Cohen, West Palm Beach, and Michael Dubiner of Dubiner & Blumberg, West Palm Beach, for respondents.
   SHAW, Justice.

This cause is before us on a certified question of great public importance. State v. LeCroy, 435 So.2d 354, on rehearing, 441 So.2d 1182 (Fla. 4th DCA 1983). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

The certified question reads in full:
Where statements made by appellants when measured by traditional factual tests are found to have been given voluntarily and without coercion or inducement, they may nonetheless be rendered legally involuntary and therefore subject to being suppressed under Miranda v. Arizona, 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (1966) where, immediately following the reading of the Miranda warnings, the following statement is also read:
This statement is taken primarily in order to refresh your memory at the time you may be called to testify, if and when this matter goes to court.

LeCroy, 441 So.2d at 1183. We answer the question with a qualified no. The additional advice (hereinafter “refresher”' advice) did not under the circumstances here render the obtained statement legally involuntary and suppressible under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Respondents Cleo and Jon LeCroy, suspects in a double murder, voluntarily accompanied police to a station house in Belle Glade, Palm Beach County. Cleo gave one unrecorded and one recorded statement to a police officer which implicated him in the double murder. Miranda warnings were given prior to these statements and the police did not give the “refresher” advice in their prefatory comments. These statements were not suppressed and are not at issue. Soon after giving these statements, Cleo asked a second police officer to receive a clarifying statement. Cleo’s Mi randa rights were given and acknowledged again. Thereafter, the interrogating officer prefaced his questioning with the following comments which identified and explained the interrogation:

“Detective Browning: All right. For the record, if you understand these rights, how about signing the card for me, indicating that you understand. For. the record, Mr. LeCroy is now signing the rights card.
Okay, continuing. Mr. LeCroy, the Palm Beach County Sheriff’s Department is presently investigating the circumstances surrounding a double shooting which allegedly occurred on Sunday, January 4th, 1981 in the Brown’s Farm Hunting Area. I have reason to believe that you have knowledge pertaining to this incident. I would like for you to tell me, in your own words, in the order in which they occurred, the circumstances through which you were involved in the incident, either prior to, during or immediately after the incident. Although I would like this statement to be in your own words, I may interrupt your chain of thought in order to ask you specific questions about certain circumstances as they develop in the statement. This statement is taken primarily in order to refresh your memory at the time you may be called upon to testify, if and when this matter goes to court.
If you would, at this time, I would like for you to tell me what happened.... (Emphasis supplied.)

Before beginning our analysis of the legal issues, we feel constrained to comment that the “refresher” advice was inappropriate when questioning a suspect. More seriously, it was mischievous, as evidenced by the subsequent appeal and review, in that it forces the courts to perform a case-by-case inquiry into the voluntariness of statements, thus obviating one of the prime virtues of the Miranda rule. California v. Prysock, 453 U.S. 355, 359, 101 S.Ct. 2806, 2809, 69 L.Ed.2d 696 (1981). We roundly condemn its use. Nevertheless, as the Prysock court recognized, the Miranda warning is not a talismanic incantation. It is the totality of circumstances which determine whether a statement was voluntarily given. Id. Both the trial court and the district court of appeal recognized that if the “refresher” advice had not been given the statement would have been admissible. We agree but go further. When the totality of circumstances is expanded to include the “refresher” advice, it is still clear that the statement was voluntarily given and should have been admitted. Cleo received and acknowledged numerous Miranda warnings and there is nothing in the record to suggest that he did not understand his rights or that he was coerced or deceived into making the statement. We quash the portion of the district court decision affirming the suppression of the statement.

Following the second recorded statement, Cleo accompanied two police officers to Miami in order to retrieve a shotgun and pistol at his Miami home and a rifle at the home of a friend, Elliot. The trial court suppressed these weapons and any statements given by Cleo during the journey based on the theory that they were tainted by the illegally obtained statement addressed above. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Our holding that the statement should not have been suppressed disposes of this issue. We add, however, that the record indicates that the officers knew of the weapons and their locations as a result of Cleo’s earlier statements and the weapons appear to be admissible under the independent source doctrine. Nix v. Williams, _ U.S. _, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920).

The issues surrounding Jon LeCroy’s suppressed statements are more complex and require a remand in part for a further hearing. Jon gave an unrecorded statement to Officer Copeland. In denying a motion to suppress this statement, the trial court found as follows:

That this defendant’s initial oral, unrecorded statement given to Officer Copeland at about 3:30 p.m., January 11,1981, was freely and voluntarily made with an intelligent understanding of his rights under Miranda v. Arizona, supra. No threats, promises or improper inducements were made or offered to the defendant in exchange for that statement. See pages 389-394 of the July 8, 1981 transcript. This defendant was not informed of the above quoted admonition that the primary purpose of the statement was to refresh his memory if called to testify at trial. See page 419 of the transcript. The motion is therefore denied as to that oral statement to Officer Copeland.

In his testimony on the contents of this statement, Copeland testified that Jon admitted having viewed both bodies soon after the murders but denied participating with his brother, Cleo, in the murders. Copeland further testified that Jon admitted having received a .38 caliber revolver from Cleo on the day following the murders which Cleo had taken from the victims. Jon said he received the revolver at a friend’s home and had left it there. According to Copeland, Jon told him the name of the friend and agreed to accompany him and furnish directions to her Miami home in order to retrieve the revolver. Copeland further testified that Jon requested a polygraph test to verify the truth of his statement. According to Copeland, the police were anxious to retrieve the weapons and consequently delayed the taking of the polygraph test.

Following the above statement which occurred contemporaneously with Cleo’s statements regarding the location of various weapons, the police undertook to retrieve the weapons. Officers Copeland and Driggers and Jon left for Miami, approximately ninety miles away, to retrieve the .38 revolver. Officers Browning and Welty and Cleo left for Miami in a second car in order to retrieve the rifle from the home of Cleo’s friend, Elliot. After independently retrieving the revolver and rifle, the two parties were to rendezvous with the other party of officers at the LeCroy home to retrieve the shotgun and pistol.

Enroute to Miami, Jon stated that he wanted an attorney. The senior officer told the other officer and Jon that all questioning would cease until Jon obtained an attorney, but the officers continued to Miami. It is controverted as to whether the officer asked for directions to the friend’s home; it is uncontroverted that Jon provided such directions and that these directions facilitated the seizure of the .38 revolver. Based on these events, the trial court suppressed the .38 revolver as to Jon only, reasoning that the officers would not have been able to seize the weapon except for the directions Jon gave to the friend’s home after having asked for an attorney. It does not seem nearly that clear to us. First, when Jon requested an attorney en-route to Miami, the officers were not obligated to immediately produce an attorney nor were they obligated to terminate their investigative trip. Second, according to Officer Copeland’s testimony, on which the trial court relied, the police knew the name of the friend and it appears probable that the police would have located the home using routine investigative techniques with or without Jon’s directions. Based on the record before us, we are not prepared to say to a certainty that this is so. Nevertheless, we are not prepared to put the police in a worse position than they would have been in absent the directions given by Jon by taking the drastic and socially costly course of holding that this evidence is forever barred from use. We recognize that neither the trial court nor the district court had the benefit of Nix v. Williams. Accordingly, we remand with directions that a hearing be conducted on whether the .38 revolver would have been discovered under either the independent source or inevitable discovery doctrines. Nix v. Williams; Silverthorne.

After obtaining the four weapons in Miami, the police returned Jon and Cleo to Belle Glade that same evening. The record indicates that Jon still desired a polygraph test and that at approximately 12:45 a.m., 12 January 1981, the police obtained a statement from Jon. No Miranda warnings were given, only the “refresher” advice. In view of Jon’s earlier request for an attorney, and the failure of the police to provide an attorney or to give a Miranda warning, we agree with the trial court that this statement should be suppressed.

The following afternoon Jon made his first appearance where he was represented by a court-appointed attorney. The attorney moved for a gag order restraining the police from further interrogation of Jon. This motion was denied on the rationale that while Jon did not have to talk to the police, the court could not order him not to do so if he so desired. After the first appearance, Officers Browning and Welty approached Jon, advised him he had an attorney who did not wish him to talk to them but asked if he still desired a polygraph test. Jon replied that he did, received and acknowledged his Miranda rights without receiving the “refresher” advice, and waived his right to have counsel present. The trial court suppressed this statement, taken at approximately 8:43 p.m., 12 January 1981, reasoning that Jon had earlier requested an attorney and that the police had initiated the contact in violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). We disagree. First, neither the trial court nor the district court had the benefit of Solem v. Stumes, _ U.S. _, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984). Therein, the Court reasoned that retroactive application of the Edwards per se rule to collateral relief proceedings would not serve the purpose of deterring police misconduct as contemplated by the exclusionary rule. Accordingly, the Court declined to hold that Edwards was retroactive. The Court was careful to say that it was not addressing the issue of retroactive application of Edwards to cases on direct appeal, such as we have here. Nevertheless, applying the rationale of So-lem, we do not see how the purpose of the exclusionary rule, deterring police misconduct, will be served by retroactively applying Edwards to police conduct which occurred prior to its issuance. The Solem court expressly acknowledged that Edwards established a new rule, that the police could not be faulted for failing to anticipate its per se approach, that a waiver of the right to counsel could be voluntary even if the police initiated contact after counsel was requested, that Edwards has little to do with the truth-finding function, that it would be unreasonable to expect the police to have followed the bright line of Edwards prior to its announcement, and that retroactive application would have a disruptive effect on the administration of justice. We agree in all respects and hold that Edwards is not retroactively applicable to cases on direct appeal. Second, even if Edwards were applicable, the trial court overlooked the fact that an attorney had been appointed as requested, that this attorney had argued in open court in Jon’s presence that Jon should not be interrogated, and that Jon had been advised by the presiding judge that he did not have to talk to the police. Further, prior to interrogating Jon, the police advised him that his attorney did not want him to talk to the police and gave a Miranda warning which Jon acknowledged. We have no doubt on this record that Jon understood his right either to remain silent or to have his attorney present and that Jon actively desired to talk to the police and to take a polygraph test. It is the second Edwards holding, not the first, which is applicable to these facts:

We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. (Emphasis supplied.)

Edwards, 451 U.S. at 485, 101 S.Ct. at 1885.

The trial court also reasoned that the 8:43 p.m. statement was the fruit of the poisoned 12:45 a.m. statement. Although we agree that the 12:45 a.m. statement should be suppressed, we do not agree that it tainted the later statements. Prior to and following the 12:45 a.m. statement, Jon had consistently requested, even demanded, a polygraph test which he maintained would support his innocence of the murders. It is clear that the 8:43 p.m. interrogation would have occurred had the earlier statement not been given. Further, following the 12:45 a.m. statement, an attorney was appointed and Jon was advised by the attorney, the court, and the police that he had the right not to talk to the police. We hold that the 8:43 p.m. statement did not result from an exploitation of the 12:45 a.m. statement and that the events occurring between the two statements attenuated any causal connection between the statements. Wong Sun.

Jon’s third (and last) recorded statement was given at 6:54 p.m. on 13 January 1981. Jon received and acknowledged his Miranda rights but was also advised that the primary purpose of the statement was to refresh his memory should he testify at trial. The trial court suppressed the statement on the grounds it was taken in violation of Edwards and Wong Sun and was obtained by deception. We disagree for the reasons previously enunciated.

Petitioner also appeals the dismissal of Count V which charged respondents with concealing evidence. The district court affirmed the dismissal without further comment. We approve.

We summarize our opinion as follows:

(1) The answer to the certified question is a qualified no. The “refresher” advice does not so dilute the Miranda warning as to render a resulting statement per se legally involuntary.

(2) We quash the portion of the district court decision affirming the suppression of Cleo LeCroy’s second recorded statement of 11 January 1981, and of the shotgun, rifle and pistol which were seized at the LeCroy and Elliot homes.

(3) We approve the suppression of Jon LeCroy’s statement given at approximately 12:45 a.m., 12 January 1981.

(4) We disapprove the suppression of Jon LeCroy’s statements given at approximately 8:43 p.m., 12 January 1981, and 6:54 p.m., 13 January 1981.

(5) On the question of suppressing the .38 caliber revolver as to Jon, we remand to the district court with directions that it remand to the trial court for a hearing to determine if the police would have discovered the revolver under either the independent source or inevitable discovery rules absent the directions given by Jon which enabled the police to proceed directly to the home where the revolver was seized. Nix v. Williams, Silver-thorne.

(6) We approve the dismissal of Count V.

We approve in part and quash in part the decision of the district court and remand for further proceedings consistent with this opinion.

It is so ordered.

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


author: ADKINS, Justice. OVERTON, Justice,

text:
    Robert DAVID, et ux., Petitioners, v. SUN FEDERAL SAVINGS & LOAN ASSOCIATION, Respondent.
    No. 63757.
    Supreme Court of Florida.
    Dec. 20, 1984.

      James M. Donohue of Henry, Buchanan, Mick & English, and Cynthia S. Tunnicliff and George N. Meros, Jr. of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tallahassee, for petitioners.
    John C. Lovett, Anne Longman and H. Michael Madsen of Messer, Rhodes & Vick-ers, Tallahassee, for respondent.
   ADKINS, Justice.

This is a petition to review a decision of the First District Court of Appeal reported as David v. Sun Federal Savings and Loan Association, 429 So.2d 1277 (Fla. 1st DCA 1983), which directly and expressly conflicts with prior decisions of this Court and of the district courts of appeal. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

This case involves the purchase of a home by the Davids [hereinafter petitioners] from the Browns. The purchased home had an assumable mortgage in favor of Sun Federal Savings and Loan Association [hereinafter respondent]. Title Searchers, Inc., was to serve as closing agent, handling the funds placed in escrow. After the closing on November 3, 1980, Title Searchers, Inc., misfiled the closing documents, did not make the October or November mortgage payments to respondent, and did not notify respondent of the assumption, although the deed noting the assumption was recorded on November 4, 1980. On November 6, 1980, respondent sent a written notice to Brown stating that the loan was in default and requesting a prompt and immediate payment thereof. Upon receipt, Brown discarded the letter. Likewise, the letter of November 28, 1980, from respondent notifying Brown of the acceleration of his obligation was discarded. On December 1, 1980, petitioner attempted to make his December mortgage payment. The payment was refused by respondent. Petitioner was later notified that the loan was in default and had been accelerated.

The trial court held that the debt secured by the mortgage was properly accelerated, and judgment was entered in favor of respondent. The court found that respondent had not committed any act nor made any representation which was intended to mislead, deceive or misinform any party with respect to their rights under the note and mortgage. The court also found that respondent had acted properly and had not breached any obligation or duty to any party.

Petitioners then appealed to the First District Court of Appeal. In its brief opinion, that court affirmed the trial court decision and held “[gjiven no fault by either party, equity will not interfere with the enforcement of Sun Federal’s contractual rights." 429 So.2d at 1277.

Petitioners argue that the district court erred as a matter of law in requiring evidence of fault as a prerequisite for the imposition of equity as a defense to foreclosure. We disagree under the facts of the given ease and affirm the district court’s decision.

In support of their argument, petitioners raise several points for review. First, petitioners argue that the foreclosure should be denied because an acceleration of the due date would be an inequitable or unjust result and the circumstances would render the acceleration unconscionable.

It is well established in this state that an acceleration clause or promise in a mortgage confers a contract right upon the note or mortgage holder which he may elect to enforce upon default. Campbell v. Werner, 232 So.2d 252, 255 (Fla. 3d DCA 1970). Safeguarding the validity of such contracts, and assuring the right of enforcement thereof, is an obligation of the courts which has constitutional dimensions. Id. at 256. See also art. I, § 10, U.S. Const.; Declaration of Rights, art. I, § 10, Fla. Const.

In Campbell v. Werner, the Third District Court of Appeal found:

A contract for acceleration of a mortgage indebtedness should not be abrogated or impaired, or the remedy applicable thereto denied, except upon defensive pleading and proof of facts or circumstances which are regarded in law as sufficient grounds to prompt or support such action by the court.

232 So.2d at 256.

Only under certain clearly defined circumstances may a court of equity refuse to foreclose a mortgage. Mere notions or concepts of natural justice of a trial judge which are not in accord with established equitable rules and maxims may not be applied in rendering a judgment.

Although providing equitable relief in a proper case is discretionary with the trial judge, were that discretion not guided by fixed principles, the degree of uncertainty injected into contractual relations would be intolerable. Equity cannot therefore look solely to the result in determining whether to grant relief, but must apply rules which confer some degree of predictability on the decision-making process.

Equitable principles established by years of judicial decisions represent specific circumstances which courts regard as adequate to bar acceleration and foreclosure. The Campbell court set out a number of situations which courts have traditionally recognized as permitting relief from foreclosure:

Foreclosure on an accelerated basis may be denied when the right to accelerate has been waived or the mortgagee estopped to assert it, because of conduct of the mortgagee from which the mortgagor (or owner holding subject to a mortgage) reasonably could assume that the mortgagee, for or upon a certain default, would not elect to declare the full mortgage indebtedness to be due and payable or foreclose therefore; or where the mortgagee failed to perform some duty upon which the exercise of his right to accelerate was conditioned; or where the mortgagor tenders payment of defaulted items, after the default but before notice of the mortgagee’s election to accelerate has been given (by actual notice or by filing suit to foreclose for the full amount of the mortgage indebtedness); or where there was intent to make timely payment, and it was attempted, or steps taken to accomplish it, but nevertheless the payment was not made due to a misunderstanding or excusable neglect, coupled with some conduct of the mortgagee which in a measure contributed to the failure to pay when due or within the grace period.

Id. at 256, 257.

The instant case is not within any of the established principles of equity under which the trial judge’s discretion should be invoked. Thus, we find that the trial court did not err in refusing to preclude foreclosure under these specific circumstances.

Petitioner next argues that the foreclosure should be denied even though there was a default because the security for the mortgage was never placed in jeopardy. Under certain clearly defined circumstances it is true that a foreclosure may be denied when the security for the mortgage is not jeopardized. However, we find that the rule of law is not applicable to the facts of the case at bar.

The actual rule stems from this Court’s decisions in cases such as St. Martin v. McGee, 82 So.2d 736 (Fla.1955), and Delgado v. Strong, 360 So.2d 73 (Fla.1978), dealing with breaches of mortgage clauses other than those requiring payment of principal and interest. Those cases concern technical breaches of covenants intended to preserve the mortgaged property as security for the debt. Were such a rule applicable to the facts of the given ease as petitioners claim it to be, no mortgage could be foreclosed so long as the value of the mortgaged property exceeded the balance also on the note, regardless of the mortgagor’s failure to pay.

Failure to make timely payment is not a mere technical breach of covenant intended to preserve the security; it goes to the heart of the agreement between a mortgagor and mortgagee. See Guynn v. Brentmoore Farms, Inc., 253 So.2d 136 (Fla. 1st DCA 1971). In the instant case, when petitioner’s title agent failed to make two monthly payments, a material default occurred under the mortgage. Respondent then had a right to accelerate, which it exercised only after giving notice and opportunity to cure default to mortgagors. Thus, we find that no abuse of the trial court’s discretion has been demonstrated.

Finally, petitioners argue that notice of intent to accelerate was not made in an effective manner to petitioners before the overdue payment was tendered. The law does not require a mortgagee to notify a mortgagor of his intent to exercise his option to accelerate prior to instituting a foreclosure suit, but requires only that the option be exercised prior to tender of amounts due from the mortgagor. River Holding v. Nickel, 62 So.2d 702 (Fla.1952).

In the instant case, the trial court found that the attempted assumption of the mortgage by petitioners never occurred. We agree and therefore find that notice of intent to accelerate did not have to be given to petitioners. Furthermore, the trial court found that respondent did provide notice of intent to accelerate in an effective manner to Brown, the mortgagor, before any overdue payments were properly tendered. We agree. River Holding does not, therefore, compel us to reverse the trial court’s judgment.

Since there exist no equitable grounds which would lead us to reverse the lower court’s order granting the mortgagee’s contractual right to acceleration and a judgment of foreclosure in his favor, we affirm the final judgment entered by the lower court.

It is so ordered.

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

OVERTON, J., dissents with an opinion, in which BOYD, C.J., concurs.

OVERTON, Justice,

dissenting.

I dissent.

I would find that under the peculiar facts of this case there are justifiable equitable grounds to deny the acceleration of the note and the resulting foreclosure. The security was clearly not in jeopardy; the petitioners, who are the purchaser-owners of the property were not at fault; the respondent, Sun Federal Savings and Loan, knew the property was being sold and who was closing the transaction; the period of default was short; and it is uncontroverted that an inadvertent mistake on the part of the closing agent, rather than an intentional act by the petitioners or any other person, caused the default. Further, and not mentioned in the majority’s statement of facts, is Sun Federal’s offer, after the acceleration, to refinance the loan at a higher interest rate, which indicates that Sun Federal had no concern whatever with the purchasers’ credit.

Equity is founded on the principle of conscience and what is fair and just in dealing with the affairs of men and women. Courts were given equity powers to deal with exactly the type of situation presented by this cause. The majority’s decision to permit acceleration is neither fair nor just, nor can it ever be said that it is equitable.

BOYD, C.J., concurs.


author: EHRLICH, Justice. BOYD, Chief Justice,

text:
    STATE of Florida, Petitioner, v. Jenny JONES, Respondent.
    No. 64082.
    Supreme Court of Florida.
    Dec. 20, 1984.

      Jim Smith, Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., Miami, for petitioner.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, Eleventh Judicial Circuit, Miatni, for respondent.
   EHRLICH, Justice.

We have before us by petition for review Jones v. State, 434 So.2d 337 (Fla. 3d DCA 1983). The district court certified its decision as being in direct conflict with Williams v. State, 347 So.2d 472 (Fla. 1st DCA 1977), cert. discharged, 376 So.2d 846 (Fla.1979). Our jurisdiction is pursuant to article V, section 3(b)(4), Florida Constitution.

Respondent was charged with and convicted of second-degree theft. The state presented the only witness who testified, Terry White, a store detective employed by' Jefferson stores. According to his testimony, respondent and another woman entered the store, proceeded to the ladies’ wear department, and filled two red Jefferson bags with jumpsuits. White followed them out the exit door. White then identified himself, explained to the women why they had been stopped and asked them to return to the security office with him. At this point in the testimony, the prosecutor asked White whether the women offered any explanation for their conduct. Following the response, “No, none,” defense counsel objected and moved for a mistrial on the basis that respondent had a fifth amendment privilege to remain silent and not to have the exercise of that right disclosed to the jury. The trial court denied the motion, finding it dispositive that the silence about which White testified occurred prior to respondent’s arrest.

The district court agreed with respondent and reversed, relying primarily on the authority and reasoning in Judge Rawls’ dissent in Williams. It was Judge Rawls’ position that when a merchant detains a suspected shoplifter under section 901.34, Florida Statutes (1975) [here section 812.-015(3)(a), Florida Statutes (1981) ], a police-like atmosphere has been created, pursuant to the sovereign’s grant of power, and the suspect is “in custody.” Section 812.-015(3)(a) provides:

[a] law enforcement officer, a merchant, a merchant’s employee, ... who has probable cause to believe that merchandise ... has been unlawfully taken by a person and that he can recover it by taking the person into custody may, for the purpose of attempting to effect such recovery or for prosecution, take the person into custody and detain him in a reasonable manner and for a reasonable length of time.... [A] law enforcement officer shall be called to the scene immediately after the person has been taken into custody. [Emphasis supplied.]

Séction 812.015(6), Florida Statutes (1981) provides:

[a]n individual who resists the reasonable effort of a law-enforcement officer, merchant [or] merchant’s employee ... to recover merchandise ... which the [authorized person under the statute] ... had probable cause to believe the individual had concealed or removed from its place of display or elsewhere and who is subsequently found to be guilty of theft of the ... merchandise ... is guilty of a misdemeanor of the first degree ....

We do noi agree with the Third District or Judge Rawls that section 812.015, Florida Statutes raises the action of a store employee charged with the duty of protecting his employer’s property interests to the level of state action for purposes of invoking the protection of the fifth amendment to the United States Constitution or article I, section 9 of the Florida Constitution. To do so would overlook the common law right of recapture (or recaption) of chattels.

At common law, the owner or custodian of property has the right to take action in defense of that property. That action may include force or confinement reasonable under the circumstances. Restatement of Torts § 77.80 (1934); W. Prosser, Law of Torts § 22 (4th ed. 1971). This view was clearly that of the Florida Supreme Court in Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (1936).

It is undoubtedly true that in order to recover for false arrest of the person, it must be shown that the restraint was unreasonable and such as was not warranted by the circumstances. Jacques v. Childs Dining Hall Co., 244 Mass. 438, 138 N.E.Rep. 843, 844, 26 A.L.R. 1329. It was said in that case:
“It may be assumed — indeed, it is not denied — that the plaintiff knew that she must pay for her luncheon before leaving the restaurant, and the defendant undoubtedly had the right, if apparently she had not paid, to detain her for a reasonable time to investigate the circumstances. But if she was detained for an unreasonable time or in any unreasonable way she is entitled to recover.”

126 Fla. at 317-18, 171 So. at 218.

The harsh corollary of the common-law rule was that, if the suspicion of theft or interference proved to be erroneous, the detention was per se unreasonable and not warranted by the circumstances.

It follows that a shopkeeper, who has good reason to believe that he has caught a customer in the act of stealing, of defrauding him of goods, or of sneaking out without paying for goods or services, is placed in a difficult position. He must either permit the suspected wrongdoer to walk out, and very probably say goodbye to both goods and payment, or run the risk that he will be liable for heavy damages for any detention. Many courts have held him liable for false imprisonment under an honest mistake in such a case.

Prosser, § 22 at 121. In order to mitigate this difficult position, California adopted a rule allowing probable cause to suspect theft to substitute for proof of actual theft in raising the defense of justification to a claim of false imprisonment. Collyer v. S.H. Kress & Co., 5 Cal.2d 175, 54 P.2d 20 (1936). This amelioration of the shop-keeper’s dilemma quickly became the majority rule. Annot., 137 A.L.R. 495 (1942). See also Dooley, Modern Tort Law § 42.07 n. 3 (1977). Florida codified this protection of a shopkeeper’s right to protect his property in 1955. Ch. 29668, Laws of Fla. (1955). The title to this statute, a direct precursor to the current one, makes clear the legislature’s concern for the merchants’ exposure to civil liability:

AN ACT relating to larceny of goods held for sale; providing that detaining a person under suspicion by a peace officer, merchant, or merchant’s employee, shall not render merchants, merchant’s employee, or peace officer criminally or civilly liable for false arrest, false imprisonment or unlawful detention; providing for arrest without a warrant by a peace officer upon probable cause, and exempting merchants or their employees from civil or criminal liability where probable cause exists to believe a person committed larceny of goods held for sale.

(Emphasis supplied.) Thus, the statute gave the shopkeeper no greater right than he previously enjoyed when he apprehended and reasonably detained an actual shoplifter; it merely protected him from the consequences of reasonable errors. Nor does the later addition of a criminal penalty for resisting reasonable efforts to recover merchandise cloak those reasonable efforts with state action. State action arises only with arrest and prosecution for that misdemeanor charge. If, as the court below held, the detention by the store employer be state action, then it would follow that the state would be liable in damages for any detention found to be unreasonable, a result surely not contemplated by the legislature in the passage of section 812.015(3).

Because we find no state action in the detention of the appellee, we hold that the right to silence protected by the fifth amendment and by Florida’s own Declaration of Right was not violated.

Accordingly the decision of the district court is quashed and the decision of the First district in Williams is approved and the cause is remanded to the trial court for reentry of the original conviction and sentence.

It is so ordered.

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

SHAW, J., concurs in result only.

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

BOYD, Chief Justice,

dissenting.

I dissent to the majority opinion and would approve the decision of the district court of appeal. In this case the state was allowed to present evidence to the jury that when respondent was detained and questioned by a store detective she exercised her Fifth Amendment right not to answer. To penalize an accused person for invoking the right to remain silent, by presenting testimony about her exercise of the right, is as much a violation of the constitution as is actual coercion of an answer through improper interrogation practices. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).

I agree with the view stated in dissent by Judge Rawls in Williams v. State, 347 So.2d 472, 473 (Fla. 1st DCA 1977), cert. discharged, 376 So.2d 846 (Fla.1979), and, as was indicated by my concurrence, by Justice Adkins in dissenting to the denial of certiorari in that case. 376 So.2d at 846-48. That view is that a merchant or merchant’s employee or agent who takes a suspected thief into custody is exercising authority conferred by the sovereign and that a suspect’s silence in the face of interrogation or an accusation made by such a private person should be excluded from evidence just as it is excluded when the interrogation or accusation comes from a law enforcement officer.

The majority opinion points out that the common law recognized the right of an owner of property to forcibly restrain and confine a person suspected of theft. Because this common law right antedated the statutory right of reasonable detention under section 812.015, Florida Statutes (1981), the majority concludes that a merchant who detains a suspected thief is not acting in pursuant of authority that comes from the state. This reasoning is erroneous; just because the statute did not add anything to the power previously enjoyed does not mean that the right does not come from the sovereign. Early common-law court decisions expressed the policy preferences of the king. Statutes today express the policies desired by the people. In neither case do the rights and obligations of private persons exist in a vacuum. Within constitutional limitations, such rights are always derived from political authority. Therefore I conclude that the right of a merchant to detain a suspected thief is a form of authority extended to the merchant by the state.

However, I do not believe that the question of whether the conduct of a merchant under the statute constitutes “state action” is the real issue in this case. The real issue is whether the state may present evidence to the jury showing that when confronted with an explicit or implicit accusation of criminal activity the accused person exercised his Fifth Amendment rights by not responding to the accusation. Thus one need not accept that a store detective or other private security officer is the functional equivalent of a police officer in order to reach the conclusion that testimony about the pre-trial silence of the accused must be excluded on Fifth Amendment grounds. It is readily conceded by the respondent that had she voluntarily made an incriminating statement to the store detective, that statement would be admissible even in the absence of Miranda warnings. See United States v. Antonelli, 434 F.2d 335 (2d Cir.1970). Thus she does not argue for a mechanical symmetry between the situation of custodial interrogation by a law enforcement officer and that of interrogation by a merchant or merchant’s agent. Her argument is that admitting evidence of silence in response to interrogation penalizes the exercise of Fifth Amendment rights in either case.

The fact that a private security officer who questions a suspect is not required by the courts to give Miranda warnings in order for the evidence obtained to be admissible certainly does not mean that a suspect does not have the right to remain silent in the face of such questioning. See Lee v. State, 422 So.2d 928 (Fla. 3d DCA 1982), review denied, 431 So.2d 989 (Fla.1983). If a store security agent uses actual coercion to obtain a confession, that confession will unquestionably be suppressed. Peak v. State, 342 So.2d 98 (Fla. 3d DCA 1977). Thus while Miranda warnings are only required in connection with custodial interrogation by police, the Miranda principle against penalizing the right to remain silent should apply regardless of the setting in which the right is invoked.

In the present case the state was allowed to present testimony that when the accused was detained on suspicion of shoplifting and asked to explain her actions, she gave no answer. The accused could not be required to give any response to questioning, either initially when questioned by the merchant’s security officer, nor later upon arrest by a law enforcement officer, nor still later in court. The state action that violated the Fifth Amendment was the presentation of evidence of the defendant’s initial silence. By the threat of using such damaging testimony, the state can gain leverage with which to coerce the accused into taking the stand at trial. And, as Griffin v. California teaches, “[i]t is not every one who can safely venture on the witness stand though entirely innocent of the charge against him. Excessive timidity, nervousness when facing others and attempting to explain transactions of a suspicious character, and offenses charged against him, will often confuse and embarrass him to such a degree as to increase rather than remove prejudices against him. It is not every one, however honest, who would, therefore, willingly be placed on the witness stand.” 380 U.S. at 613, 85 S.Ct. at 1232 (quoting Wilson v. United States, 149 U.S. 60, 66, 13 S.Ct. 765, 766, 37 L.Ed. 650 (1893)). By thus penalizing the exercise of the right to remain silent, testimony about the accused’s initial silence in the face of accusation “cuts down on the privilege by making its assertion costly.” Griffin v. California, 380 U.S. at 614, 85 S.Ct. at 1232. Testimony about or comment upon the fact that the accused has not responded to the accusation at trial or at any time before the trial violates the fundamental principle that our criminal justice process is accusatorial rather than inquisitorial.

Although the evidence of guilt in this case appears to have been so clear that application of the harmless error doctrine would seem to be appropriate, this Court has clearly stated: “Reversible error occurs in a jury trial when a prosecutor improperly comments upon or elicits an improper comment from a witness concerning the defendant’s exercise of his right to remain silent.” Clark v. State, 363 So.2d 331, 334 (Fla.1978).

Therefore I conclude that there was reversible error and would approve the decision of the district court of appeal reversing and remanding for a new trial.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. David B. LINN, Respondent.
    No. 64121.
    Supreme Court of Florida.
    Dec. 20, 1984.

      John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, Joseph L. Ackerman, Jr., Bar Counsel, North Palm Beach, and Jacquelyn Plasner Needelman, Co-Bar Counsel, Fort Lauderdale, for complainant.
    David B. Linn, Boynton Beach, in pro. per.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against David B. Linn, a member of The Florida Bar, is presently before us on complaint of The Florida Bar, report of referee and amended' report of referee. Pursuant to article XI, Rule 11.06(9)(b) of the Integration Rule of The Florida Bar, the referee’s report and record were duly filed with this Court. No petition for review pursuant to Integration Rule of The Florida Bar 11.09(1) has been filed.

Having considered the pleadings and evidence, the referee found as follows:

1. Respondent, David B. Linn, is and was, at all times hereinafter mentioned, a member of The Florida Bar subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida;

2. That, in reference to Count I of the Complaint filed herein, respondent, David B. Linn, on or about April 1, 1982, and continuing through May 4, 1982, advised one Richard Stoutenburgh that he (Linn) knew persons interested in purchasing quantities of cocaine if Stoutenburgh were able to provide it, that those persons were interested in a purchase of approximately four (4) kilograms of cocaine, that respondent and Stoutenburgh would purchase cocaine and sell it to persons known to the respondent and divide the profit from the transaction, thus conspiring with Richard Stoutenburgh to purchase and sell cocaine, a controlled substance as defined by § 893.-135, Florida Statutes, thus soliciting Richard Stoutenburgh to traffick in cocaine, an offense prohibited by § 893.135, Florida Statutes, in violation of § 777.04(2), Florida Statutes:

3. That by reason of the foregoing, respondent has violated article XI, Rules 11.-02(3)(a) and (b) of the Integration Rule of The Florida Bar (commission of an act contrary to honesty, justice and good morals and commission of a crime) and Disciplinary Rules 1-102(A)(1) (a lawyer shall not violate a disciplinary rule), 1-102(A)(3) (a lawyer shall not engage in illegal conduct involving moral turpitude), 1-102(A)(6) (a lawyer shall not engage in any other conduct that adversely reflects on his fitness to practice law);

4. That, in reference to Count II of the Complaint filed herein, respondent, David B. Linn, purchased Lot 1, Block 13, Hidden Valley Subdivision, Section 2, as recorded in Plat Book 25, pages 115-116, Public Records of Palm Beach County, Florida, giving as part consideration to the sellers, J. Grant and Margaret Whittle, a promissory note and a Purchase Money First Mortgage, copies of which were entered into evidence as complainant’s No. 2, promising the sellers that the note and mortgage would be recorded after execution by respondent’s wife, who was unable to be present at the closing of the transaction held October 30, 1981, that respondent failed to record or to deliver to the sellers their note and Purchase Money First Mortgage, the instrument being unrecorded until September 17, 1982, after which the sellers discovered that the respondent had executed, together with his wife, another promissory note and Purchase Money First Mortgage encumbering the identical realty which had been recorded January 27, 1982, as a result of which seller Whittle’s mortgage became a second mortgage despite respondent’s representations and despite the indication given by instruments prepared by him; and

5.That, by reason of the foregoing, respondent has violated article XI, Rule 11.-02(3)(a) (a lawyer shall not commit any act contrary to honesty, justice or good morals) of the Integration Rule of The Florida Bar, and Disciplinary Rules 1-102(A)(1) (a lawyer shall not violate a disciplinary rule), 1-102(A)(3) (a lawyer shall not engage in illegal conduct involving moral turpitude), 1-102(A)(4) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation), and 1-102(A)(6) (a lawyer shall not engage in conduct that adversely reflects on his fitness to practice law) of the Code of Professional Responsibility.

The referee recommends that respondent be found guilty of misconduct justifying disciplinary measures and recommends that respondent be disbarred from the practice of law in the State of Florida, and that he be ordered to make restitution to J. Grant and Margaret Whittle in the amount of $24,000.

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

Accordingly, respondent, David B. Linn, is hereby disbarred from the practice of law in the State of Florida effective January 21, 1985, thereby giving respondent thirty (30) days to close out his practice and take the necessary steps to protect his clients. Respondent shall not accept any new business and he shall make restitution to J. Grant and Margaret Whittle in the amount of $24,000.

Judgment for costs in the amount of $3,662.46 is hereby entered against respondent, for which let execution issue.

It is so ordered.

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


text:
    GENERAL BUILDERS CORPORATION OF FORT LAUDERDALE, INC., Petitioner, v. Kelley SISK, as Personal Representative of the Estate of James Larry Sisk, Cedar Land Developers, Inc., and Wentworth Plastering of Boca Raton, Inc., Respondents.
    No. 64532.
    Supreme Court of Florida.
    Dec. 20, 1984.
    Richard A. Sherman of the Law Offices of Richard A. Sherman, Fort Lauderdale, and Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, West Palm Beach, for petitioner.
    David L. Kahn, Fort Lauderdale, for respondents.
   SHAW, Justice.

This cause is before the Court on petition for review because of express and direct conflict between the decision of the district court of appeal below, Sisk v. General Builders Corporation of Fort Lauderdale, Inc., 438 So.2d 65 (Fla. 4th DCA 1983), and numerous decisions of this Court and of other district courts. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

The facts are as contained in the decision below. The decision of the district court below was predicated on the proposition that a corporation could lose its separate corporate identity under the mere instrumentality doctrine without any allegation or showing of wrongdoing. The district court cited as authority Dania Jai-Alai Palace, Inc. v. Sykes, 425 So.2d 594 (Fla. 4th DCA 1982), which has since been quashed in pertinent part. Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114 (Fla.1984). We quash the decision below and remand for proceedings consistent with our opinion in Dania Jai-Alai.

It is so ordered.

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