author: BOYD, Justice. ADKINS, Justice,

text:
    FIRST AMERICAN TITLE INSURANCE COMPANY, INC., Petitioner, v. FIRST TITLE SERVICE COMPANY OF THE FLORIDA KEYS INC., Respondent.
    No. 63136.
    Supreme Court of Florida.
    June 28, 1984.
    Rehearing Denied Oct. 29, 1984.

      Thomas R. Tatum and Allen Bosworth of Tatum & Tatum, Fort Lauderdale, for petitioner.
    S. Alan Stanley of Turner, Fascell & Russo, Coral Gables, for respondent.
    Peter Guarisco, Tallahassee, amicus curiae for Florida Land Title Ass’n, Inc.
   BOYD, Justice.

This cause is before the Court on petition for review of a district court of appeal decision reported as First American Title Insurance Co. v. First Title Service Co., 423 So.2d 600 (Fla. 3d DCA 1982). The district court properly followed established precedent, see Hoffman v. Jones, 280 So.2d 431 (Fla.1973), in holding that an abstracter can be held liable for negligent preparation of an abstract only to a party, such as the purchaser of the abstract, in privity with the abstracter. See Sickler v. Indian River Abstract & Guaranty Co., 142 Fla. 528, 195 So. 195 (1940). The district court certified that its decision directly conflicts with Kovaleski v. Tallahassee Title Co., 363 So.2d 1156 (Fla. 1st DCA 1978). We have jurisdiction. Art. Y, § 3(b)(4), Fla. Const. Although we decline to recognize an abstracter’s liability in tort for negligence to any and all foreseeable injured parties, we hold that the plaintiff here stated a cause of action as a third-party beneficiary of the contract of employment of the abstracter.

First American Title Insurance Company brought this action against First Title Service Company of the Florida Keys alleging that First Title Service Company had prepared abstracts for the sellers of two lots and that First American Title Insurance Company, relying on the abstracts, had issued owners’ and mortgagees’ title insurance policies to the buyers of the two lots and their lender. The complaint went on to allege that the abstracts had failed to note the existence of a recorded judgment against a former owner of the lots; that the holder of the judgment had made demand on the new owners for payment of the judgment; and that First American, pursuant to the policies of title insurance it had issued, had been obliged to pay and had paid approximately $75,000 to satisfy the judgment and obtain releases. The complaint did not allege any privity of contract between the plaintiff insurer and the defendant abstracter, but did allege that at the time the defendant prepared the abstracts for the sellers of the lots the defendant knew that a person other than the person ordering the abstracts would rely on them as providing an accurate and complete summation of all recorded instruments affecting title to the lots in question.

The defendant abstracting company moved to dismiss the complaint for failure to state a cause of action upon which relief may be granted. The trial court granted the motion and the plaintiff title insurer appealed. As has already been stated, the district court of appeal relied on Sickler v. Indian River Abstract & Guaranty Co., and affirmed the dismissal.

In Sickler, this Court explained its holding as follows:

An abstracter is liable in damages for injuries resulting from wrongful or negligent errors, defects or omissions in an abstract prepared and furnished by him. It was settled in an early case, which has been followed in nearly all the decisions on this question, that his liability is not in tort, but is contractural, and must be based upon a breach of his express or implied contract with his customer or client to furnish him with a true and correct abstract. It is therefore measured by the nature, extent and terms of his undertaking or employment. See C.J.S. page 389, par. ll-(a).
The general rule is that the liability of an abstracter extends only to the person employing him, or to one who is a party of privy to the contract of employment. This rule seems to be unquestioned in cases where the abstracter had no knowledge that the abstract was intended for the information or use of another. See 1 C.J., pages 368-9, pars. 11 and 12.
The weight of authority is that an abstracter does not render himself liable to any and every person who may be injured by reason of his negligence, ignorance, or want of skill in preparing abstracts, but that such liability exists only in favor of the person employing him or those in privity with him. The negligence or unskillfulness of an abstractor does not render him liable to the alienee, devisee, or other successor in interest [to the one] employing him, or other persons with whom there is no privity of contract.

142 Fla. at 532-33, 195 So. at 197-98 (bracketed language added for clarity; citations following quoted matter omitted).

Petitioner argues that the proper test for liability is not the existence of a contractual relationship between the parties but rather the foreseeability of the plaintiffs reliance on the defendant’s abstract. The cause of action, petitioner maintains, is not based on breach of contract but on negligence. Petitioner cites numerous cases illustrating the transition from the privity doctrine to the theory of liability in tort to foreseeably injured persons. All of these cases involved bodily harm or injury caused by negligently designed or produced manufactured products or negligently prepared or packaged food products. See, e.g., West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976); Tampa Drug Co. v. Wait, 103 So.2d 603 (Fla.1958); Matthews v. Lawnlite Co., 88 So.2d 299 (Fla.1956); Blanton v. Cudahy Packing Co., 154 Fla. 872, 19 So.2d 313 (Fla.1944). Petitioner points out that even with regard to actions for monetary losses only, this Court has seen fit to dispense with the privity requirement in cases of defective products. See, e.g., Manheim v. Ford Motor Co., 201 So.2d 440 (Fla.1967); Hoskins v. Jackson Grain Co., 63 So.2d 514 (Fla.1953).

Petitioner argues that the products liability concept (whether based on a theory of failure of due care to foreseeable users or breach of implied warranty) has been held applicable to the rendition of professional services in a decision that petitioner says impliedly overruled Sickler. It is true that in A.R. Moyer, Inc. v. Graham, 285 So.2d 397 (Fla.1973), this Court discussed products liability theory in holding an architect liable for negligence causing financial loss to a contractor with whom the architect had no direct contractual relationship. Our opinion in that case said:

Privity is a theoretical device of the common law that recognizes limitation of liability commensurate with compensation for contractual acceptance of risk. The sharpness of its contours blurs when brought into contact with modern concepts of tort liability. MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), is heralded not so much for its decision on the facts as for its prece-dential value: a case relaxing privity’s strictures. In Matthews v. Lawnlite Co., supra, the Court recognized MacPherson as humane and accepted its principle as being “more in line with reason and justice.”

285 So.2d at 399. There the architect had supervisory responsibility for a construction project; the architect was negligent in the preparation and presentation of plans, designs, and specifications; the negligence of the architect caused financial loss to the contractor; there was no direct privity between them. The Court’s opinion discussed the decline of the privity doctrine in products liability cases and concluded as follows:

From the foregoing, we are satisfied that the principle is established that a third party general contractor, who may foreseeably be injured or sustained an economic loss proximately caused by the negligent performance of a contractual duty of an architect, has a cause of action against the alleged negligent architect, notwithstanding absence of privity.

285 So.2d at 402.

Petitioner relies on numerous cases from other jurisdictions as illustrating the wisdom of recognizing an abstracter’s liability for injury to any foreseeably relying parties, the most notable of which is Williams v. Polgar, 391 Mich. 6, 215 N.W.2d 149 (1974). There an abstract prepared in 1926 had failed to note the existence of a deed executed in that year. Several continuations of the abstract were made thereafter, and as extended the abstract was exhibited by the seller and relied upon by the buyer in a conveyance that occurred in 1959. Subsequently the ownership interest the abstracter had failed to discover in 1926 was asserted and the 1959 purchaser suffered financial losses because of it. So, in 1971, the purchaser brought an action for damages against the successor in interest to the firm that had prepared the 1926 abstract and subsequent continuations. Pointing out that Michigan law already recognized that an abstracter is liable for negligence causing damages to a third party whom the abstractor knows is relying on the abstract, the Supreme Court of Michigan framed the issue thus: “The question boils down to whether there should be liability for foreseeable as well as known reliance.” 391 Mich, at 9, 215 N.W.2d at 150. The court embraced the foreseeability theory and held that there was liability in tort. In holding that the defense of privity was no bar to the action, the court reasoned as follows:

The early common-law rule restricting liability to those in- contractual privity with an abstracter was based on a system where abstracts would only be used by real estate owners. 1 Fitch, Abstracts and Titles to Real Property, § 9, p. 9; and see § 3. As time went on the actual usage of abstracts and the class of people relying on them expanded. This historical change in circumstance and the corresponding change in law is noted in numerous cases of which the following two quotations will serve as examples. The first, Brown v. Sims, 22 Ind.App. 317, 325; 53 N.E. 779; 72 Am.St.Rep. 308 (1899) illustrates a judicial expansion of liability to a known third party beneficiary:
“It is very well known that the owner of real estate seldom incurs the expense of procuring an abstract of the title from an abstracter, except for the purpose of thereby furnishing information to some third person or persons who are to be influenced by the information thus provided. If the abstracter in all cases be responsible only to the person under whose employment he performs the service, it is manifest that the loss occasioned thereby must in many cases, if not in most cases, be remediless.”

The second, Gate City Abstract Co. v. Post, 55 Neb. 742, 746; 76 N.W. 471 (1898), represents judicial support of legislation that purports to create liability “for the payment by such abstracters of any or all damages that may accrue to any party or parties, by reason of any error, deficiency or mistake in any abstract”:

“By the common law, as we interpret it, the owner of real estate could only utilize an abstract as an argument to reinforce his own assertions concerning the state of his title. It might be persuasive, but was without legal efficacy. He may now use it as evidence in an action to enforce the specific performance of a contract of sale, and in every other form of action in which the validity of his title or the existence or non-existence of liens or incumbran-ces are questions directly or collaterally involved. The right to use an abstract as evidence is not even limited to the person to whom it is issued. Any one may use it, and any one against whom it is employed may be injured in consequence of the certificate being false. Having thus widened the abstract’s sphere of action, it was quite natural that the legislature should also widen the abstracter’s liability.”

391 Mich, at 11-13, 215 N.W.2d at 151-52 (footnotes omitted). The court went on to discuss the concept that one who undertakes by contract to perform a service not only owes a duty of diligence to his contracting counterpart, but also owes a general duty to perform the service with reasonable care, and that this latter duty may, if breached, give rise to liability in tort to a person injured even if the injured person is a stranger to the contract. After discussing the several other possible theories of recovery (fraud, deceit, warranty, and strict liability) and finding them all unsatisfactory, the court concluded that the tort of negligent misrepresentation “precisely fits this situation.” Id. at 20, 215 N.W.2d at 156. The court concluded:

Thus, we adopt the tort action of negligent misrepresentation in this context. See 1 Harper & James, The Law of Torts, § 7.6; 17 C.J.S., Contracts, § 154(c). It should be noted that this action is premised on negligence in title search; an abstracter is not converted into a title insurer by virtue of our decision today. We repeat that the only liability an abstracter has to an injured third-party is with respect to negligent performance of his or her contractual duty.
As to the measure of the duty required to be exercised by the abstracter, Chief Justice T.M. Kavanagh noted in Nash v. Sears, Roebuck & Co., supra, [383 Mich. 136], at page 142 [174 N.W.2d 818]:
“Every contract of employment includes an obligation, whether express or implied, to perform in a diligent and reasonably skillful workmanlike manner.”
This is clearly a form of the traditional negligence standard. Since the legal duty which, when breached, gives rise to a tort cause of action, springs from the contractual duty imposed, this Nash standard governs an abstracter's legal obligation to non-contracting parties. Because an abstracter is hired to determine what is in the public record, misstatements of, or failure to include, relevant items contained in that record are obviously examples of acts constituting failure to perform abstracting services in a diligent and reasonably skillful workmanlike manner.
This cause of action arising from breach of the abstracter’s contractual duty runs to those persons an abstracter could reasonably foresee as relying on the accuracy of the abstract put into motion. The particular expert-client relationship accruing to a professional contract to certify the condition of the record of title reposes a peculiar trust in an abstracter which runs not only to the original contracting party. There is a clearly foreseeable class of potential injured persons which would obviously include grantees where his or her grantor or any predecessor in title of the grantor has initiated the contract for abstracting services with the abstracter.

391 Mich, at 21-23, 215 N.W.2d at 156-57 (footnotes omitted).

We decline the petitioner’s invitation to approve a completely open-ended kind of abstracter’s liability based on a duty of care to any and all persons who might foreseeably use and rely on the abstract. The petitioner urges us to adopt this foreseeability theory as a matter of public policy. It is indeed a public policy question, but we do not agree with the wisdom of the policy urged upon us.

We find the attempted analogy to products liability situations unpersuasive. The privity doctrine was gradually eliminated in that field because of a recognition that manufacturers and distributors release products into the commercial marketplace which the ultimate users and consumers thereof are in no position to test, examine, or evaluate for design safety or fitness. The ultimate purchaser relies on the manufacturer for assurance that the product is safe and the manufacturer knows of this reliance. The consumer has no other alternative but reliance on the manufacturer for the fitness of the product. A prospective purchaser of real estate, on the other hand, is not so restricted in his quest for assurances that he is getting what he is paying for. Rather than rely on the abstract of title prepared for the seller or for a previous owner, the purchaser can order his own abstract and an attorney’s title opinion based thereupon.

We also believe that petitioner’s argument based on A.R. Moyer, Inc. v. Graham is unpersuasive. Where a contractor is totally dependent on the plans and specifications prepared and supplied by an architect or engineer with supervisory authority over a project, the contractor is unable to take steps independently to protect itself against the consequences of the negligence of the architect or engineer. Although Moyer applied products-liability tort principles to negligent provision of professional services, we find a vast difference between that situation and this one. Here there is far less compelling reason to make such an application.

On the question of whether an abstracter owes a duty of due care to any and all persons who might foreseeably see, use, and rely on the abstract, we believe the analysis made in Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931), pertaining to a negligence action against an accounting firm, is highly persuasive.

If liability [to third parties] for negligence exists, a thoughtless slip or blunder, the failure to detect a theft or forgery beneath the cover of deceptive entries, may expose accountants to a liability in an indeterminate amount for an indeterminate time to an indeterminate class. The hazards of a business conducted on these terms are so extreme as to enkindle doubt whether a flaw may not exist in the implication of a duty that exposes to these consequences.

Id. at 179-80, 174 N.E. at 444. To hold an abstracter liable to every stranger to the contract of employment who might happen to come to see and rely on the abstract would be like holding a title insurer liable to anyone who knows of the issuance of an insurance policy but who has not paid a premium. For the reasons stated we decline to expose abstracters to liability to any person who foreseeably relies on a negligently prepared abstract to his detriment.

While the policy arguments put forth by the petitioner, and so well expressed in Williams v. Polgar, do not persuade us to adopt open-ended liability for negligence to any foreseeably relying persons, they do convince us that, when an abstract is prepared in the knowledge or under conditions in which an abstracter should reasonably expect that the employer is to provide it to third persons for purposes of inducing those persons to rely on the abstract as evidence of title, the abstracter’s contractual duty to perform the service skillfully and diligently runs to the benefit of such known third parties. As was said in Brown v. Sims, 22 Ind.App. 317, 53 N.E. 779 (1899), and quoted by the Michigan Supreme Court in Williams v. Polgar, “It is very well known that the owner of real estate seldom incurs the expense of procuring an abstract of title from an abstracter, except for the purpose of thereby furnishing information to some third person or persons who are to be influenced by the information thus provided.” 22 Ind.App. at 325, 53 N.E. at 781.

An illustrative decision is Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275, (1922), where it was said that “knowledge of a prospective use” enlarges “the bounds of duty.” Id. at 240, 135 N.E. at 276. There the sellers of goods employed a firm of weighers to weigh the goods and provide the information to the buyers. The goods “were accepted and paid for on the faith of the certificates” provided by the weighers. Id. at 238, 135 N.E. at 275. The weights were inaccurate, the buyers suffered a loss when they resold, and the buyers sought compensation from the weighers. The weighers defended on the ground of lack of contractual relationship. The New York Court of Appeals said:

We think the law imposes a duty toward buyer as well as seller in the situation here disclosed. The plaintiffs’ use of the certificates was not an indirect or collateral consequence of the action of the weighers. It was a consequence which, to the weighers’ knowledge, was the end and aim of the transaction. Bech, Van Siclen & Co. ordered, but Glanzer Brothers were to use. The defendants held themselves out to the public as skilled and careful in their calling. They knew that the beans had been sold, and that on the faith of their certificate payment would be made. They sent a copy to the plaintiffs for the very purpose of inducing action. All this they admit. In such circumstances, assumption of the task of weighing was the assumption of a duty to weigh carefully for the benefit of all whose conduct was to be governed. We do not need to state the duty in terms of contract or of privity. Growing out of a contract, it has none the less an origin not exclusively contractual. Given the contract and the relation, the duty is imposed by law (cf. MacPherson v. Buick Motor Co., 217 N.Y. 382, 390 [111 N.E. 1050]).

233 N.Y. at 238-39, 135 N.E. at 275-76. Similarly, when an abstracter knows that his employer or customer is ordering the abstract for the use of a purchaser of the property, reliance on the abstract by the purchaser is “the end and aim of the transaction.” We therefore hold that such a known third-party user is owed the same duty and is entitled to the same remedy as the one who ordered the abstract.

It clearly follows that the purchasers here, as intended and known beneficiaries of the contract for the abstract service, may recover damages from the abstract company for its negligent performance. But the purchasers, of course, are not the plaintiffs. The plaintiff in this case, and the petitioner before us, is First American Title Insurance Company. The purchasers of the property, and their lender-mortgagee, have been fully protected from harm and made whole by their title insurer’s satisfaction of the judgment that threatened their title and security interests. But we believe it is fair to say, and we so hold, that the title insurer stands in the place of its insured under principles of sub-rogation. Having held the owner harmless from the negligently omitted title defect, the insurer may pursue the purchaser’s cause of action against the abstracter. See, e.g., Boley v. Daniel, 72 Fla. 121, 72 So. 644 (1916); Urich and Milne, Abstracter’s Liability — And Beyond, 53 Fla.B.J. 210, 212 (1979). Through the doctrine of legal subrogation, we believe the title insurer who has indemnified an owner or mortgagee for losses incurred due to a title defect may accede to the right of such owner or mortgagee to recover damages from a negligent abstracter who knew that the abstract was ordered for the benefit of the purchaser or mortgagee. See Dantzler Lumber & Export Co. v. Columbia Casualty Co., 115 Fla. 541, 156 So. 116 (1934); Federal Land Bank v. Godwin, 107 Fla. 537, 546,145 So. 883 (1933); Cuesta, Rey & Co. v. Newsom, 102 Fla. 853, 136 So. 551 (1931); Union Indemnity Co. v. City of New Smyrna, 100 Fla. 980, 130 So. 453 (1930).

The effect of our holding in this case will be to change the law of abstracter’s liability, but not so drastically as the petitioner would have us change it. Where the abstracter knows, or should know, that his customer wants the abstract for the use of a prospective purchaser, and the prospect purchases the land relying on the abstract, the abstracter’s duty of care runs, as we have said, not only to his customer but to the purchaser. Moreover, others involved in the transaction through their relationship to the purchaser — such as lender-mortgagees, tenants and title insurers — will also be protected where the purchaser’s reliance was known or should have been known to the abstracter. But a party into whose hands the abstract falls in connection with a subsequent transaction is not among those to whom the abstracter owes a duty of care.

Applying these new principles of Florida law to the facts of this case, we conclude that the petitioner’s complaint stated a cause of action. Of course, our recitation of facts above was based on the allegations of the complaint which we took to be true but which remain to be proven. Thus it remains to be established that the abstracter knew or reasonably should have known that the abstract was ordered for the use of the purchasers or others likely to rely upon it in the near future. This can be shown by inference from circumstances. Most importantly, it must be shown that the fault in the abstract was due to the negligence of the abstracting company or its agent or employee.

Although the district court of appeal was correct in following and applying an established principle of law embodied in a prior and standing precedent from this Court, see Hoffman v. Jones, 280 So.2d 431 (Fla.1973) our holding today necessarily requires that we overturn the district court’s decision. We note that the case in conflict, Kovaleski v. Tallahassee Title Co., 363 So.2d 1156 (Fla. 1st DCA 1978), adopted the foreseeability approach of Williams v. Pol-gar and is therefore also inconsistent with our decision here.

The decision of the district court of appeal is quashed and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

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

ADKINS, Justice,

Dissenting:

“I would not modify the rule in Sickler v. Indian River Abstract & Guaranty Co., 142 Fla. 528, 195 So. 195 (1940).”

       We have already indicated our holding that the complaint stated a cause of action. Thus the motion to dismiss for failure to state a cause of action should have been denied. On remand, the failure of the complaint to plead the right of subrogation should not be a basis for dismissal with prejudice but rather should be an occasion for allowing amendment of the complaint.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Gary B. TURNER, Respondent.
    No. 61805.
    Supreme Court of Florida.
    Aug. 30, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, Patricia S. Etkin, Bar Counsel, Miami, and A. Rodger Traynor, Jr., Miami, for complainant.
    No appearance, for respondent.
   PER CURIAM.

These disciplinary proceedings are before the Court on complaint of The Florida Bar and report of referee, pursuant to article XI, Rule 11.06(9)(b) of the Integration Rule of The Florida Bar. No petition for review has been filed and we adopt the recommendation of the referee herewith.

The Bar filed a complaint in three counts. On count I, the referee found that Turner collected a $525 settlement in a civil action on behalf of a bank, which he failed to report or remit to the bank. On count II, the referee found that Turner received a settlement of more than $7,000 on behalf of the same bank in settlement of a mortgage foreclosure action. The payment included attorney fees and court costs for which he had already been reimbursed by the bank. He did not inform the bank of the settlement. On learning of the settlement, the bank demanded payment, whereupon Turner paid less than the full amount with a trust account check which was returned for insufficient funds. He subsequently rendered a cash payment several hundred dollars short of the amount due the bank. On count III, the referee found that Turner failed to keep adequate records of his trust accounts, that he commingled personal and trust funds, that he paid office and/or personal expenses from trust accounts, and that the accounts were repeatedly overdrawn.

Turner did not cooperate with the investigation. He failed to appear at hearings, failed to produce requested' records, and otherwise prolonged the investigation. This Court suspended Turner November 2, 1982, pursuant to Florida Bar Integration Rules, article XI, Rule 11.10(6), because of the matters now before us. Because of Turner’s delaying tactics and his failure to produce records covering several years, the referee entered a contempt order. Eventually, the referee entered an order striking respondent’s pleadings and granting a default on the issue of guilt.

The Florida Bar presented clear and convincing evidence of guilt on all three counts at the final hearing. Neither Turner nor an attorney on his behalf appeared at the final hearing, despite more than adequate notice including a half-hour delay the morning of the hearing to allow a last-minute attempt to locate Turner. The referee recommended respondent be found guilty and be disbarred for five years as follows:

IV. RECOMMENDATION AS TO WHETHER OR NOT THE RESPONDENT SHOULD BE FOUND GUILTY: I recommend that Respondent be found guilty as to each of the violations charged in the Bar’s Complaint and specifically, that he be found guilty of violating the following Disciplinary Rules of the Code of Professional Responsibility and the Integration Rule of The Florida Bar:
(1) As to Count I, I recommend that Respondent be found guilty of violating Disciplinary Rules 9-102(A), (B)(1), (2), (3), & (4) of the Code of Professional Responsibility and article XI, Rule 11.02(4)(a) of the Integration Rule of The Florida Bar.
(2) As to Count II, I recommend that Respondent be found guilty of violating Disciplinary Rules 9-102(A), (B)(1), (2), (3) & (4) of the Code of Professional Responsibility and article XI, Rule 11.02(4)(a) of the Integration Rule of The Florida Bar.
(3) As to Count III, I recommend that Respondent be found guilty of violating Disciplinary Rules 9-102(B)(2) & (3) of the Code of Professional Responsibility and article XI, Rule 11.02(4)(a)(b) & (c) of the Integration Rule of The Florida Bar.

V. RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED:

Based upon the facts as set forth in the pleadings as well as the testimony of witnesses and evidence presented at the final hearing, I recommend that respondent be disbarred for a period not less than five (5) years.

In recommending discipline, I have considered the seriousness of the offense, together with the cumulative nature of the misconduct and find that Respondent’s actions evidence a pattern of failing to account for client’s trust funds, misuse and misappropriation of such funds and failing to maintain the required trust account records. Under these circumstances disbarment is clearly warranted.

Further, in recommending a five (5) year disbarment I have considered the following aggravating factors:

(1) Respondent’s conduct in these proceedings clearly indicates a willful disregard for the disciplinary system as well as the standards of professional conduct under which attorneys must operate. The Citation for Contempt and Petition to Show Cause issued by this Referee on April 5,1983 illustrates Respondent’s contemptuous conduct.
(2) The testimony and the evidence clearly establish that from the inception of The Florida Bar’s inquiry into these matters, Respondent not only failed to cooperate with the Bar’s investigation but engaged in conduct which was apparently directed at frustrating the disciplinary proceedings. Respondent’s actions, including his obvious stalling tactics, have caused unnecessary delay, inconvenience and expense in processing these matters.
(3) Respondent failed to appear at the final hearing.

Considering all relevant factors, I find that Respondent has exhibited a course of conduct in these proceedings which indicates that he has as little regard for the disciplinary system as he has for his clients’ interests.

The referee also found costs amounted to $12,043.08.

Accordingly, we disbar Turner without leave to apply for readmission for a period of five years. Disbarment shall run from the date this order is filed. Costs are taxed to the respondent pursuant to the referee’s recommendation, with interest to accrue at twelve per cent for any amount unpaid after thirty days from the date of this order.

It is so ordered.

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


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

text:
    THE FLORIDA BAR, Complainant, v. Francis W. BLANKNER, Respondent.
    No. 63230.
    Supreme Court of Florida.
    Sept. 20, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and David G. McGunegle, Bar Counsel, Orlando, for complainant.
    F. Wesley Blankner, Jr., Orlando, for respondent.
   PER CURIAM.

This attorney discipline proceeding is before the Court on the complaint of The Florida Bar and the report of the referee. The Florida Bar has petitioned for review pursuant to article XI, Rule 11.09(1) of the Integration Rule of The Florida Bar. We have jurisdiction. Art. V, § 15, Fla. Const.

In May, 1982, the respondent, Francis W. Blankner, was indicted by a federal grand jury on three counts of willfully and knowingly failing to file income tax returns for 1977, 1978, and 1979. Under 26 U.S.C. § 7203 (1982), any person who willfully fails to file a tax return is guilty of a misdemeanor. The respondent pled guilty to count II of the indictment, which charged him with failing to file a return for 1978. Counts I and III were then dismissed by the government. Respondent was sentenced to five years’ probation and fined ten thousand dollars.

In February, 1983, The Florida Bar filed a formal complaint against the respondent. The complaint charged that the respondent violated article XI, Rule 11.02(3)(a) and (b), of the Integration Rule of The Florida Bar and Disciplinary Rules 1-102(A)(4) and 1-102(A)(6) of the Code of Professional Responsibility. Specifically, the complaint alleged that the respondent knowingly failed to file his federal income tax returns for the years 1970 through 1975 and 1977 through 1979. The respondent answered by denying the allegations as to the years 1977 through 1979, but he admitted the allegations as to the years 1970 through 1975.

A referee was appointed and a hearing was held. The referee found that the respondent failed to timely file his personal income tax returns for the years 1970 through 1979 and that respondent belatedly filed his return for 1976 in 1980 and his returns for 1977, 1978, and 1979 in 1981.

Testimony at respondent’s hearing revealed that he suffered financial difficulties and that he failed to file tax returns because of his inability to pay the taxes owed. Testimony also revealed that respondent timely filed all his partnership tax returns. The referee recommended that the respondent be found guilty of the charges brought by The Florida Bar, which then asked that respondent be suspended for ninety-one days with proof of rehabilitation prior to reinstatement. The referee, however, recommended that the respondent receive a public reprimand and, due to the cumulative nature of the respondent’s misconduct, that the respondent be suspended from the practice of law for a period of two months with automatic reinstatement at the end of the suspension period. In recommending this discipline, the referee noted that the respondent was admitted to the bar in 1949 and had had no prior disciplinary charges brought against him. The referee also noted that respondent is an excellent family man with an otherwise impeccable professional, social, and military record.

The Florida Bar now petitions this Court to review the referee’s recommended discipline. The Bar contends that the recommended discipline is erroneous considering the number of years in which the respondent failed to file his personal income tax return. Although the Bar requested that the referee suspend the respondent for ninety-one days, the Bar now argues that the respondent should be suspended for one year with proof of rehabilitation required prior to reinstatement. The respondent argues that the referee’s recommendation is supported by the evidence presented at the hearing. Respondent also contends that the recommended discipline is supported by the case law.

Several decisions of this Court have considered the discipline appropriate in cases involving attorneys who have failed to file tax returns, a misdemeanor under federal law. See 26 U.S.C. § 7203 (1982). In the first of these decisions, The Florida Bar v. Childs, 195 So.2d 862 (Fla.1967), the respondent, a respected municipal judge, failed to file income tax and social security tax returns. The referee, considering the respondent’s reputation for honesty and integrity in the community, recommended that respondent be given a public reprimand. As in the instant case, the Bar requested that the respondent be suspended for a period of one year and thereafter until he proved his rehabilitation and fitness to practice law. This Court determined that a six-month suspension was an adequate penalty. In The Florida Bar v. Silver, 313 So.2d 688 (Fla.1975), the respondent pled nolo contendere to a federal charge that he failed to file an income tax return. Upon a conditional guilty plea to a violation of the bar disciplinary rules, the referee recommended that the respondent be publicly reprimanded. This Court approved the respondent’s conditional guilty plea. Public reprimands for attorneys convicted of failing to file tax returns were also approved by this Court in several subsequent cases. See The Florida Bar: In re Beamish, 327 So.2d 11 (Fla.1976); The Florida Bar: In re Schonfeld, 336 So.2d 77 (Fla.1976); The Florida Bar v. Turner, 344 So.2d 1280 (Fla.1977); The Florida Bar v. Ryan, 352 So.2d 1174 (Fla.1977); The Florida Bar v. Greenspahn, 366 So.2d 396 (Fla.1978); The Florida Bar v. Wasman, 366 So.2d 409 (Fla.1978); and The Florida Bar v. Marks, 376 So.2d 9 (Fla.1979). None of these cases involved misconduct which affected a client.

In The Florida Bar v. Lord, 433 So.2d 983 (Fla.1983), disciplinary proceedings were brought against an attorney who failed to file income tax returns for twenty-two years. The federal government did not prosecute Lord for the felony offense of tax evasion, but accepted a guilty plea to the misdemeanor offense of failing to file tax returns. He received a one-year sentence of imprisonment, of which all but ninety days was suspended. The Bar recommended that Lord be suspended for ninety-one days to assure that Lord could not be automatically reinstated following the suspension period. The referee had recommended that Lord be suspended for three months with automatic reinstatement. In considering the proper discipline in Lord, this Court noted that

[discipline for unethical conduct by a member of The Florida Bar must serve three purposes: First, the judgment must be fair to society, both in terms of protecting the public from unethical conduct and at the same time not denying the public the services of a qualified lawyer as a result of undue harshness in imposing penalty. Second, the judgment must be fair to the respondent, being sufficient to punish a breach of ethics and at the same time encourage reformation and rehabilitation. Third, the judgment must be severe enough to deter others who might be prone or tempted to become involved in like violations.

Id. at 986 (citations omitted). Considering this articulated standard in view of the charges against Lord, we determined that the recommended three-month suspension with automatic reinstatement lacked “the requisite severity to adequately deter others tempted to engage in similar violations.” Id. Because Lord’s conduct was cumulative and reflected “a flagrant and deliberate disregard” for the law, this Court suspended him for six months and, as important, required proof of rehabilitation prior to reinstatement. Id.

This Court’s decision in Lord represented a return to the higher standard set out in The Florida Bar v. Childs, 195 So.2d 862 (Fla.1967), requiring that an attorney not only be suspended for failure to file tax returns but that reinstatement would not be automatic and that subsequent proceedings to determine character and fitness to practice law would be required. Lord serves notice that in the future an attorney’s failure to file a tax return, even though such failure is a misdemeanor under federal law and no client is injured, will warrant a suspension and subsequent inquiry into the attorney’s fitness to practice law before reinstatement will be granted. For such conduct a public reprimand will no longer be viewed as sufficient.

Although in the instant case the respondent’s conduct was not as flagrant as that exhibited in Lord, the respondent’s conduct was cumulative in nature and did result in respondent’s being placed on probation and fined by the federal court. We reject the Bar’s contention that the respondent be suspended for one year. In accordance with our decision in Lord, however, we find that the appropriate discipline in this case is a suspension of six months subject to the requirement that the respondent prove rehabilitation prior to reinstatement. This discipline is still greater than that originally requested by The Florida Bar in the hearing before the referee.

Accordingly, the respondent is suspended for a period of six months effective October 22, 1984, giving him time to protect the interests of his client. Respondent shall pay the costs of this proceeding in the amount of $817.31.

It is so ordered.

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

ALDERMAN and EHRLICH, JJ., concur specially with an opinion.

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

ADKINS, J., dissents with an opinion.

ALDERMAN, Justice,

concurring specially.

I agree that respondent should be found guilty of the charges brought by The Florida Bar. I also agree that an attorney’s failure to file his income tax returns warrants, at the very least, a suspension and subsequent inquiry into his fitness to practice law before his reinstatement.

In The Florida Bar v. Lord, 433 So.2d 983 (Fla.1983), I dissented from this Court’s decision to give Lord a six-month suspension and concluded that a three-year suspension would have been appropriate. 433 So.2d at 987. In the present case, although respondent’s conduct was cumulative, it was not as flagrant as Lord’s. Therefore, the appropriate discipline should not be greater than that imposed upon Lord. I, accordingly, reluctantly concur with the imposition of the six-month suspension. Had Lord been decided in accordance with my views, I would have found a two-year suspension to be appropriate in the present case.

EHRLICH, Justice,

concurring specially.

I concur with the Court’s opinion and judgment. In so doing, I cannot, and do not, recede from anything that I said in my dissent in The Florida Bar v. Lord, 433 So.2d 983 (Fla.1983). My feelings and observations about a lawyer’s failure to file income tax returns remains the same. However, the conduct in Lord is far more blatant and egregious than in this case. The punishment the Court meted out is the same in both cases. I am of the opinion that what the Court did in Lord was wrong. I believe that the punishment in this case more nearly fits the facts.

The record reflects that even though respondent failed to file personal income tax returns, he did file partnership returns for the years in question. It appears that respondent was not making enough money to support a disabled wife, a dependent mother, three children in college, and to pay his income taxes, during the years that he failed to file returns. While this does not excuse his conduct, it does explain it. He is now destitute. I am of the opinion that the self-executing punishment the respondent has undergone can be taken in mitigation.

BOYD, Chief Justice,

concurring in part and dissenting in part.

I concur in the Court’s approval of the referee’s finding of misconduct. However, I would also adopt the referee’s recommended discipline of a two-month suspension with automatic reinstatement and with respondent to pay the costs of these proceedings.

ADKINS, Justice,

dissenting.

In my opinion a public reprimand is the proper discipline to be imposed upon respondent.

Punishment imposed upon an attorney in grievance procedures should be tailored to fit the nature of the conduct as well as the character of the individual. The majority seems to be more interested in punishment for the conduct than consideration for the nature and character of the lawyer involved. No one would have a suit of clothes with well tailored trousers, but a coat that wraps around the individual twice and hides all of the workmanship in the well fitting trousers.

The respondent, Francis W. Blankner, 59 years of age, was admitted to the practice of law in 1949, and has been an active lawyer in Orlando, Florida, since that date. He served in the armed forces in the Pacific during World War II as a radar operator and aerial gunner aboard a B-29 bomber, and was a recipient of the Purple Heart. He was honorably discharged at the end of the war and returned to Orlando, Florida.

Respondent is a family man. His wife suffered a debilitating stroke in the late 1960’s and is not employed outside the home. He is the father of three children. His oldest son is a practicing attorney, his daughter is employed as a mechanical engineer for Ford Motor Company in Michigan, his youngest son is employed as a mechanical engineer for the Orlando Utilities Commission. Respondent resides with his wife and his 89-year-old mother-in-law. He has provided a home and support for his mother-in-law.

Respondent pled guilty to a misdemeanor in federal court. The judge placed him on 'probation for a period of five years and imposed a fine of $10,000 to be paid $2,000 annually until paid.

The referee in the grievance proceeding recommended a 60-day suspension from the practice of law with automatic reinstatement and a public reprimand. The referee found that respondent had an impeccable professional, social and military record, and that respondent had no disciplinary history.

His financial difficulty arose while he was the sole support for his wife, his aged mother-in-law, and his three children. During the period of time within which his income tax returns were not filed, he was providing financial support for the college education of his three children. Funds were borrowed from friends and relatives to defray living and college expenses. Of course, his financial problems were no excuse for failure to file his income tax returns; however, such circumstances should be taken into consideration when the Court is considering the proper disciplinary action in grievance procedures.

Every lawyer knows that he is required to file an income tax return and his failure to do so will result in punishment by the federal authorities. We should not be concerned with aiding the federal government in enforcing the tax laws. Our only concern is the ability of the individual to represent any member of the public in accordance with the Rules of Professional Conduct.

I approach this proceeding with the thought that respondent has committed a misdemeanor. Where an attorney has a previous record of disciplinary problems and has displayed no interest or concern for his family, the publicity involved in an income tax criminal charge would mean nothing. On the other hand, the criminal charge in federal court against respondent has been a trauma, not only to him, but to each member of his family. The grievance proceedings have probably been even a greater trauma.

A reprimand in this case would be a deterrent to every reputable lawyer.

The federal judge believes that probation and a fine were sufficient punishment for a violation of these federal laws. It seems ridiculous for us to paint The Florida Bar with a broader brush of holiness by suspending the respondent from the practice of law. A public reprimand is fair to The Florida Bar, to the respondent, and is sufficient deterrent to others.


author: McDONALD, Justice. ALDERMAN, Justice,

text:
    STATE of Florida, Petitioner, v. Jack NEIL, Respondent. Jack NEIL, Petitioner, v. STATE of Florida, Respondent.
    Nos. 63899, 63933.
    Supreme Court of Florida.
    Sept. 27, 1984.

      Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., Miami, for petitioner/respondent.
    Paul A. Louis, Ray Ellen Yarkin, John L. Zavertnik and Leonard H. Rubin of Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, and Jesse J. McCrary, Jr., Miami, for respondent/petitioner.
    Donald M. Middlebrooks, Talbot D’Alem-berte and Thomas R. Julin of Steel, Hector & Davis, Miami; Thomas Atkins, Gen. Counsel and Charles E. Carter, Associate Gen. Counsel, Brooklyn, N.Y.; John D. Due, Jr., Legal Redress Chairman, Miami; and Gerald B. Cope of Arky, Freed, Stearns, Watson, Greer & Weaver, Miami, amici curiae for The Florida State Conference Of Branches Of The N.A.A.C.P. and Common Cause Of Florida.
   McDONALD, Justice.

In Neil v. State, 433 So.2d 51 (Fla. 3d DCA 1983), the district court certified the following question to be of great public importance:

Absent the criteria established in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), may a party be required to state the basis for the exercise of a peremptory challenge?

Id. at 52. We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution. Believing that it is time in Florida to hold that jurors should be selected on the basis of their individual characteristics and that they should not be subject to being rejected solely because of the color of their skin, we answer the question with a qualified affirmative and quash the district court’s decision.

The state charged Neil, a black man, with second-degree murder and unlawful possession of a firearm. The charges stemmed from Neil’s shooting of a black Haitian immigrant. For Neil’s trial the jury pool consisted of thirty-five prospective jurors, thirty-one whites and four blacks. The state used peremptory challenges to remove the first three blacks called. The defense objected to each of these challenges and moved to strike the entire pool. After the state challenged the third black prospective juror, the court heard argument on whether the state’s challenges were discriminatory and violated Neil’s sixth amendment right to trial by an impartial jury. The court held that the state did not have to explain its challenges and denied the defense motion. The court did, however, give each side five additional peremptory challenges. The defense then used all of its peremptory challenges in an effort to reach the remaining black prospective juror, who eventually served as an alternate juror. The jury convicted Neil as charged.

On appeal Neil claimed that the trial court erred in denying his motion, thereby improperly allowing the state to exercise its peremptory challenges so as to exclude all blacks from his jury. The district court, however, held that Neil did not meet the requirements of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). The court refused to adopt an alternate test derived from People v. Wheeler, 22 Cal.3d 258, 583 P.2d 748, 148 Cal.Rptr. 890 (1978), and Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979), finding Neil’s argument in favor of those cases not to be compelling. Recognizing that this issue is troublesome and capable of repetition, however, the district court certified its question to this Court.

In Swain v. Alabama Swain claimed, among other things, that the state discriminated by systematically excluding blacks from petit juries. The Supreme Court stated that “purposeful discrimination may not be assumed or merely asserted,” but must be proved. 380 U.S. at 205, 85 S.Ct. at 827. The court found

no reason ... why the defendant attacking the prosecutor’s systematic use of challenges against Negroes should not be required to establish on the record the prosecutor’s conduct in this regard, espe-daily where the same prosecutor for many years is said to be responsible for this practice and is quite available for questioning on this matter.

Id. at 227-28, 85 S.Ct. at 839-40 (footnote omitted). In support of its holding the court reasoned that if peremptory challenges could be examined they would no longer be peremptory. The Court went on to say that

we cannot hold that the Constitution requires an examination of the prosecutor’s reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court.

Id. at 222, 85 S.Ct. at 836.

It appears that the Swain test has seldom if ever been met. See Annot., 79 A.L.R.3d 14 (1977). But see State v. Brown, 371 So.2d 751 (La.1979) (defendant made sufficient showing to establish prima facie discrimination). Additionally, Swain has received a considerable amount of criticism. E.g., Brown, McGuire, & Winters, The Peremptory Challenge as a Manipulative Device in Criminal Trials: Traditional Use or Abuse, 14 New Eng. L. Rev. 192 (1978); Martin, The Fifth Circuit and Jury Selection Cases: The Negro Defendant and His Peerless Jury, 4 Hous.L.Rev. 448 (1966); Comment, Swain v. Alabama: A Constitutional Blueprint for the Perpetuation of the All-White Jury, 52 Va.L. Rev. 1157 (1966). Although the United States Supreme Court recently denied cer-tiorari in a case where Swain apparently could have been revisited, three members of that Court agreed that consideration of the issue by state and other federal courts would be helpful, McCray v. New York, — U.S. —, 103 S.Ct. 2438, 77 L.Ed.2d 1322 (1983) (Stevens, J., concurring), while Justices Marshall and Brennan would have taken McCray and reconsidered Swain.

Numerous jurisdictions have considered the allegedly discriminatory use of peremptory challenges in the last few years. Most have adhered to the Swain test, have found no evidence of impropriety, or have found the complained-of peremptories to have been exercised because of specific bias. Several courts, on the other hand, based on a synthesis of state constitutional provisions and more recent United States Supreme Court cases, have fashioned less stringent tests than that set out in Swain and have permitted inquiry into why a party exercised a peremptory challenge.

In People v. Wheeler the California Supreme Court traced the United States Supreme Court’s path in its journey to holding that defendants have a right to impartial juries drawn from a cross-section of the community. The court went on to rely on California law and held that Swain would not be followed in California courts. The court set out the following procedure to be used to show that peremptories have been exercised in a discriminatory manner. The party claiming discrimination must raise the point in a timely manner and make a prima facie case to the court’s satisfaction by making as complete a record as possible, by establishing that the challenged persons are members of a cognizable group, and by showing “a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias.” 22 Cal.3d at 280, 583 P.2d at 764, 148 Cal.Rptr. at 905. When this evidence has been presented, the court must determine if there is a reasonable inference that the challenges are being made solely on the basis of group bias. If the court determines that a prima facie case has been demonstrated, the party that exercised the questioned peremptories “must satisfy the court that he exercised such peremptories on grounds that were reasonably relevant to the particular case on trial or its parties or witnesses.” Id. at 282, 583 P.2d at 765, 148 Cal.Rptr. at 906.

The Supreme Judicial Court of Massachusetts has also considered this issue and, shortly after Wheeler, came to much the same conclusion as the California court. In Commonwealth v. Soares the court held that using peremptory challenges “to exclude members of discrete groups solely on the basis of bias presumed to derive from that individual’s membership in the group,” violated the Massschusetts Constitution’s guarantee of trial by an impartial jury. 377 Mass, at 488, 387 N.E.2d at 516. The Massachusetts court began with the presumption that peremptories will be exercised properly and held that either party could rebut that presumption by showing:

(1) a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and (2) there is a likelihood they are being excluded from the jury solely by reason of their group membership.

Id. at 490, 387 N.E.2d at 517. If these criteria are met, the trial court must then decide whether to infer that the perempto-ries have been used to exclude persons based on group affiliation. If the court determines that the presumption of proper use has been rebutted, the person who exercised the peremptories must demonstrate otherwise.

Neil urges that we repudiate Swain and adopt a test derived from Wheeler and Soares. The state, on the other hand, contends that doing so will open a Pandora’s box of problems, including quota juries and an undesirable fundamental alteration of the jury system. We understand the state’s concerns, but, while we do not fully embrace either Wheeler or Soares, we believe that an alternative to Swain is needed.

While quite similar to Wheeler and Soares, People v. Thompson, 79 A.D.2d 87, 435 N.Y.S.2d 739 (1981), charts a more even course in the exercise of peremptory challenges. After analyzing numerous United States Supreme Court cases and cases from several state courts, the New York court held that petit juries should

be selected in a manner that permits the exclusion of blacks only by means of either random selection or the challenging of prospective jurors, on the basis of actual or perceived partiality, which relates not to race alone, but to the particular case on trial or the parties or witnesses thereto by the use of the challenge for cause or the peremptory challenge.

Id. at 106, 435 N.Y.S.2d at 752. The procedure outlined in Thompson is similar to those advocated in Wheeler and Soares. The initial presumption is that perempto-ries are exercised in a constitutionally proper manner. This presumption can be overcome by raising the issue in a timely manner and making a record that shows that the challenged persons are members of a distinctive racial group and that it is likely that they have been challenged solely because of race. If a defendant can show this,

the Trial Judge must determine whether there is a substantial likelihood that peremptory challenges are being used on the ground of race alone. If it is determined that such a likelihood does not exist, then no inquiry of the prosecutor may be made. However, if it is determined that such a likelihood does exist, then, and only then, does the burden shift to the prosecutor to show, in response to inquiry by the trial court, that the peremptory challenges in question were not exercised solely on the basis of the prospective juror’s race. To carry this burden, the prosecutor need not show that his reasons for the exercise of the challenges in question “rise to the level of a challenge for cause.” However, it must be shown that the exercise of such challenges was based on grounds that were related to the characteristics of the prospective juror apart from his race, the particular case on trial, or the parties or witnesses thereto.

Id. at 108-09, 435 N.Y.S.2d at 754 (footnote omitted, citation omitted). The New York court parted company with Wheeler and Soares, however,

to the extent that they suggest that a defendant may compel inquiry into the reasons for a prosecutor’s use of peremptory challenges merely because the prosecutor has used a particular number of his peremptory challenges to exclude black potential jurors, for it may well be that the prosecutor's peremptory challenges were properly exercised, but for reasons that are not as readily apparent to those who were not in the position of the Judge who attended the voir dire. Thus, while exclusion of a significant number of black potential jurors will usually be part of the case of a defendant who seeks to have the trial court inquire into the prosecutor’s use of peremptory challenges based upon alleged exclusion of blacks, such exclusion will be insufficient, in and of itself, to warrant reversal of a trial court’s determination not to make inquiry.

Id. at 110-11, 435 N.Y.S.2d at 755.

Article I, section 16 of the Florida Constitution guarantees the right to an impartial jury. The right to peremptory challenges is not of constitutional dimension. The primary purpose of peremptory challenges is to aid and assist in the selection of an impartial jury. It was not intended chat such challenges be used solely as a scalpel to excise a distinct racial group from a representative cross-section of society. It was not intended that such challenges be used to encroach upon the constitutional guarantee of an impartial jury. As did the New York, California, and Massachusetts courts, we find that adhering to the Swain test of evaluating peremptory challenges impedes, rather than furthers, article I, section 16’s guarantee. We therefore hold that the test set out in Swain is no longer to be used by this state’s courts when confronted with the allegedly discriminatory use of peremptory challenges.

Instead of Swain, trial courts should apply the following test. The initial presumption is that peremptories will be exercised in a nondiscriminatory manner. A party concerned about the other side’s use of peremptory challenges must make a timely objection and demonstrate on the record that the challenged persons are members of a distinct racial group and that there is a strong likelihood that they have been challenged solely because of their race. If a party accomplishes this, then the trial court must decide if there is a substantial likelihood that the peremptory challenges are being exercised solely on the basis of race. If the court finds no such likelihood, no inquiry may be made of the person exercising the questioned perempto-ries. On the other hand, if the court decides that such a likelihood has been shown to exist, the burden shifts to the complained-about party to show that the questioned challenges were not exercised solely because of the prospective jurors’ race. The reasons given in response to the court’s inquiry need not be equivalent to those for a challenge for cause. If the party shows that the challenges were based on the particular case on trial, the parties or witnesses, or characteristics of the challenged persons other than race, then the inquiry should end and jury selection should continue. On the other hand, if the party has actually been challenging prospective jurors solely on the basis of race, then the court should dismiss that jury pool and start voir dire over with a new pool.

Although specifically dealing with blacks, both Wheeler and Soares speak generally of group bias based on racial, religious, ethnic, sexual, or other grounds. Thompson, on the other hand, appears to be limited solely to race, specifically blacks. We choose to limit the impact of this case also and do so to peremptory challenges of distinctive racial groups solely on the basis of race. The applicability to other groups will be left open and will be determined as such cases arise.

Thompson speaks only of challenges exercised by the prosecution. Wheeler and Soares, on the other hand, recognize that the ability to challenge the use of peremp-tories should be given to the prosecution as well as to the defense. We agree with Wheeler and Soares on this point and hold that both the state and the defense may challenge the allegedly improper use of peremptories. The state, no less than a defendant, is entitled to an impartial jury.

In Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), the Court held that distinctive groups cannot be systematically excluded from venires because petit juries must be selected from a representative cross-section of the community. No one is entitled to a jury of any particular composition, and it is possible that the cross-section requirement might have to give way before article I, section 16’s guarantee of an impartial jury. “A cross-section of the fair and impartial is more desirable than a fair cross-section of the prejudiced and biased.” Smith v. Balkcom, 660 F.2d 573, 583 (5th Cir.1981). It may even be possible that, on the peculiar facts of a particular case, no member of some distinct group could be impartial. If this occurs, an attorney should be able to state with certainty that this is so and that peremptories have been exercised because of empathy or bias.

Turning to the instant case, we find that Neil should be given a new trial before a new jury. His counsel objected to the state’s excusal of black prospective jurors. The court allowed additional per-emptories after argument, but acceded to the state’s reliance on Swain. We cannot tell, if the test we have set out here had been available, whether or not the trial court would have found that Neil had shown a sufficient likelihood of discrimination in order for the court to inquire as to the state’s motives. It may well be that the state did not excuse those prospective jurors solely because of their race. The bottom line, however, is that we simply cannot tell.

Although we hold that Neil should receive a new trial, we do not hold that the instant decision is retroactive. The difficulty of trying to second-guess records that do not meet the standards set out herein as well as the extensive reliance on the previous standards make retroactive application a virtual imposibility. Even if retroactive application were possible, however, we do not find our decision to be such a change in the law as to warrant retroactivity or to warrant relief in collateral proceedings as set out in Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980).

To recapitulate, a party’s peremptories cannot be examined until the issue is properly presented to the trial court and until the trial court has determined that such examination is warranted. If such occurs, the challenged party must show that the questioned challenges, but no others, were not exercised solely on the basis of race. We answer the certified question in the affirmative and direct the district court to remand for a new trial.

It is so ordered.

OVERTON, EHRLICH and SHAW, JJ., concur.

ALDERMAN, J., dissents with an opinion in which BOYD, C.J., and ADKINS, J., concur.

ALDERMAN, Justice,

dissenting.

I would approve the decision of the district court of appeal. The majority has reached a result that is not required by either the federal or our state constitution.

The majority’s holding is contrary to the weight of authority and goes far beyond the test established by the United States Supreme Court in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). The Court in Swain, referring to peremptory challenges, said:

The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court’s control. State v. Thompson, 68 Ariz. 386, 206 P.2d 1037 (1949); Lewis v. United States, 146 U.S. 370, 378 [13 S.Ct. 136, 139, 36 L.Ed. 1011]. While challenges for cause permit rejection of jurors on a narrowly specified, provable and legally cognizable basis of partiality, the peremptory permits rejection for a real or imagined partiality that is less easily designated or demonstrable. Hayes v. Missouri, 120 U.S. 68, 70 [7 S.Ct. 350, 351, 30 L.Ed. 578]. It is often exercised upon the “sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another,” Lewis, supra [146 U.S.], at 376 [13 S.Ct. at 138], upon a juror’s “habits and associations,” Hayes v. Missouri, supra [120 U.S.], at 70 [7 S.Ct. at 351] or upon the feeling that “the bare questioning [a juror’s] indifference may sometimes provoke a resentment,” Lewis, supra, [146 U.S.] at 376 [13 S.Ct. at 138]. It is no less frequently exercised on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty. For the question a prosecutor or defense counsel must decide is not whether a juror of a particular race or nationality is in fact partial, but whether one from a' different group is less likely to be. It is well known that these factors are widely explored during the voir dire, by both prosecutor and accused, Miles v. United States, [13 OTTO 304], 103 U.S. 304 [26 L.Ed. 481]; Aldridge v. United States, 283 U.S. 308 [51 S.Ct. 470, 75 L.Ed. 1054], This Court has held that the fairness of trial by jury requires no less. Aldridge, supra. Hence veniremen are not always judged solely as individuals for the purpose of exercising peremptory challenges. Rather they are challenged in light. of the limited knowledge counsel has of them, which may include their group affiliations, in the context of the case to be tried.

380 U.S. at 220-21, 85 S.Ct. at 835-36 (footnotes omitted). As pointed out by the district court, “[w]hen peremptory challenges are subjected to judicial scrutiny, they will no longer be peremptory.” Neil v. State, 433 So.2d 51, 52 (Fla. 3d DCA 1983).

This decision should give no cause for criminal defendants to celebrate. The sword which the majority has fashioned is two edged, and it will cut both ways. As I read the majority opinion, a defendant who believes, rightly or wrongly, that he would not receive a fair trial from a jury composed of members of a certain racial group will no longer be able to freely exercise peremptory challenges to excuse members of that group from his jury. Apparently, this court-imposed restriction on peremptory challenges would even prevent a defendant from peremptorily challenging members of his own race. For example, the defendant in this case, Mr. Neil, a black man, is charged with killing another black man. Rightly or wrongly, if he perceived that there was a prejudice against him in the black community and he believed that he would not receive a fair trial if he were judged by members of his own race, he would not, for that reason alone, be able to peremptorily challenge black jurors. Likewise, under the rule established by this case, Mr. Neil would not be able to peremptorily challenge white jurors solely for the purpose of increasing the number of blacks on his jury.

I agree with the majority that both the state and the defendant are entitled to an impartial jury. I disagree, however, with the majority’s conclusion that to ensure an impartial jury, we must change the long-existing law related to peremptory challenges.

BOYD, C.J., and ADKINS, J., concur.

      . "The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court’s control.” Swain, 380 U.S. at 220, 85 S.Ct. at 835. For a history of peremptory challenges see Swain; Note, Systematic Exclusion of Cognizable Groups by Use of Peremptory Challenges, 11 Fordham Urb. L.J. 927 (198283). Peremptory challenges also have a long history in Florida. While still a territory, Florida gave defendants to felony charges 20 perempto-ries. Act Nov. 19, 1828, § 14. The state later gained peremptories, but it still received fewer than defendants. Ch. 1010, § 7 (1877) (capital cases: defendant — 20, state — 5; other felonies: defendant — 5, state — 2; misdemeanors: defendant— 3, state — 2). In § 2855 of the 1892 Revised Statutes the state achieved parity with defendants as to the number of peremptory challenges, which parity still exists. § 913.08, Fla.Stat. (1983).

      . McCray also had filed a habeas corpus petition with federal district court. Taking Justice Stevens’ invitation to heart, that court held that the record made out a prima facie case of discrimination under Wheeler and ordered that McCray be retried. McCray v. Abrams, 576 F.Supp. 1244 (E.D.N.Y.1983).

      . Flowers v. State, 402 So.2d 1088 (Ala.Crim.App.1981); Mallott v. State, 608 P.2d 737 (Alaska 1980); Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980); People v. Smith, 622 P.2d 90 (Colo.Ct.App.1980); Saunders v. State, 401 A.2d 629 (Del.1979), cert. denied, 449 U.S. 845, 101 S.Ct. 128, 66 L.Ed.2d 54 (1980); Doepel v. United States, 434 A.2d 449 (D.C.), cert. denied, 454 U.S. 1037, 102 S.Ct. 580, 70 L.Ed.2d 483 (1981); Blackwell v. State, 248 Ga. 138, 281 S.E.2d 599 (1981); People v. Payne, 99 Ill.2d 135, 75 Ill. Dec. 643, 457 N.E.2d 1202 (1983); State v. Stewart, 225 Kan. 410, 591 P.2d 166 (1979); State v. Robinson, 386 So.2d 1374 (La.1980); Lawrence v. State, 295 Md. 557, 457 A.2d 1127 (1983); State v. Sims, 639 S.W.2d 105 (Mo.Ct.App.1982); (Lee v. State, 637 P.2d 879 (Okla.Crim.App.1981); Commonwealth v. Henderson, 497 Pa. 23, 438 A.2d 951 (1981); State v. Raymond, 446 A.2d 743 (R.I.1982); Jason v. State, 589 S.W.2d 447 (Tex.Crim.App.1979); State v. Grady, 93 Wis.2d 1, 286 N.W.2d 607 (Ct.App.1979); Evans v. State, 653 P.2d 308 (Wyo.1982).

      . One of these cases, People v. Payne, 106 Ill. App.3d 1034, 62 Ill.Dec. 744, 436 N.E.2d 1046 (App.Ct.1980), has been reversed and the Illinois Supreme Court’s agreement with Swain reaffirmed. People v. Payne, 99 Ill.2d 135, 75 Ill. Dec. 643, 457 N.E.2d 1202 (1983).
      In State v. Crespin, 94 N.M. 486, 612 P.2d 716 (Ct.App.1980), the New Mexico Court of Appeals held that
      improper systematic exclusion by use of peremptory challenges can be shown (1) under Swain v. State of Alabama, supra, by presenting facts beyond the instant case; or (2) under the Wheeler-Soares rationale and supported by Article II, Section 14 of the New Mexico Constitution, where the absolute number of challenges in the one case raises the inference of systematic acts by the prosecutor.

        Id. at 488, 612 P,2d at 718. In both Crespin and State v. Davis, 99 N.M. 522, 660 P.2d 612 (Ct.App.), cert. denied, 99 N.M. 578, 661 P.2d 478 (1983), however, the court held that the defendant had failed to overcome the presumption of fairness and propriety set out in Swain.

        See also McCray, note 2, supra.

      .The following cases are examined in Wheeler. Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Glosser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946); Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181 (1946); Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972); and Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975).

        .Wheeler and Soares have both supporters, see, e.g., Note, People v. Wheeler: Peremptory Challenges — A New Interpretation, 14 New Eng.L. Rev. 370 (1978), and critics, see, e.g., Saltzberg & Powers, Peremptory Challenges and the Clash Between Impartiality and Group Representation, 41 Md.L.Rev. 337 (1982), and Note, Peremptory Challenges and the Meaning of Jury Representation, 89 Yale LJ. 1177 (1980).

      . The state’s reliance on Francis v. State, 413 So.2d 1175 (Fla.1982), and Dobbert v. State, 409 So.2d 1053 (Fla.1982), is misplaced because neither of those cases deals with the question presented here.

      . One commentator considers Thompson more workable than either Wheeler or Soares. Comment, Survey of the Law of Peremptory Challenges: Uncertainty in the Criminal Law, 44 U. Pitt. L.Rev. 673 (1983).

      . As stated in Castor v. State, 365 So.2d 701, 703 (Fla.1978):
      The requirement of a contemporaneous objection is based on practical necessity and basic fairness in the operation of a judicial system. It places the trial judge on notice that error may have been committed, and provides him an opportunity to correct it at an early stage of the proceedings.

      . We agree with Thompson that the exclusion of a number of blacks by itself is insufficient to trigger an inquiry into a party’s use of peremp-tories. It may well be that the challenges were properly exercised but that that fact would not be apparent to someone not in attendance at the trial. The propriety of the challenge, however, might be readily apparent to the judge presiding over the voir dire. We emphasize that the trial court’s decision as to whether or not an inquiry is needed is largely a matter of discretion.

      . At oral argument Neil’s counsel agreed that any new test should apply to both sides.

      . Because the United States Supreme Court has not ruled on this issue, we prefer to rely on our state constitution instead of engaging in an analysis of federal constitutional issues.

      . “Neither the state nor the defendant is entitled to an unfair juror whose interest, biases or prejudices will determine his or her resolution of the issue regardless of the law and regardless of the facts.” Smith v. Balkcom, 660 F.2d 573, 583 (5th Cir.1981).

      . The record reflects the objections and the race of those prospective jurors.

      . We find no merit to Neil's point regarding cross-examination of a witness.


text:
    THE FLORIDA BAR, Complainant, v. J. Richard STALEY, Respondent.
    No. 63463.
    Supreme Court of Florida.
    Oct. 4, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and David G. McGunegle, Bar Counsel, Orlando, for complainant.
    J. Richard Staley, in pro. per., Orange City, for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against J. Richard Staley, a member of The Florida Bar, is presently before us on complaint of The Florida Bar and 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. As to Count I:

I find that the evidence is insufficient to substantiate the charge that the Respondent’s conduct involved deceit in the contact with his client at the outset of the relationship regarding the loan request. Therefore, I find that Respondent did not violate Disciplinary Rule 1-102(A)(4).
As to the allegation of a violation of Disciplinary Rule 5-101(A), I find that the Respondent did violate that Rule in that Respondent accepted employment in the loan transaction when his own financial and business interests were involved.
I further find that the Respondent is in violation of Disciplinary Rule 5-104(A) in that Respondent entered into a business transaction with his client in which they had differing interests and the client expected Respondent to exercise his professional judgment to protect her interest without full disclosure and consent.

2. As to Count II:

As to Count II, I find that the Respondent violated Rule 11.02(4)(c) and the corresponding Bylaw of the Integration Rule of The Florida Bar for improper and inadequate Trust Account record keeping as well as Disciplinary Rule 9-102(B)(3) for improper and inadequate Trust Account record keeping in that:
Respondent did not make the minimally required quarterly reconciliations of his internal trust account with his bank trust account.
Respondent’s internal records did not always show the source and date of all receipts of trust funds.
Respondent’s internal records including cancelled checks and check stubs did not accurately reflect at all times the identity of the client for whom the money is being disbursed.
Respondent did not maintain an individual client ledger sheet or card and/or file containing an accounting for each person from whom or for whom trust money had been received.

The referee made the following recommendations as to whether or not the Respondent should be found guilty:

1. As to Count I:

Violation of Rule 5-101(A) for accepting employment in a transaction when his own financial and business interests were involved.
Violation of Rule 5-104(A) for entering into a business transaction with his client where they had differing interests and the client expected Respondent to exercise his professional judgment to protect her without full disclosure and consent.

2. As to Count II:

Violation of Rule 11.02(4)(c) and the corresponding Bylaw of the Integration Rule of The Florida Bar for improper and inadequate Trust Account record keeping as well as Disciplinary Rule 9-102(B)(3) for improper and inadequate Trust Account record keeping.

The referee recommends that respondent receive a public reprimand and be placed on probation for a period of one (1) year as provided in Rule 11.10(1) to provide supervision over the Respondent’s Trust Account.

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

Accordingly, respondent, J. Richard Sta-ley, is hereby reprimanded and publication of this opinion in Southern Reporter will serve as the public reprimand. J. Richard Staley is placed on probation for one year, effective thirty days from the filing of this opinion. At the beginning of probation, and quarterly during probation, The Florida Bar shall examine respondent’s trust account records to determine whether those records have been maintained in accordance with the Bar’s rules and bylaws governing trust accounts.

Costs in the amount of $1,074.71 is hereby taxed against respondent.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Richard J. BORECKY, Respondent.
    No. 65481.
    Supreme Court of Florida.
    Oct. 4, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Robert D. Rosenbloom, Bar Counsel, Miami, for complainant.
    Richard J. Borecky, in pro. per., Miami, for respondent.
   PER CURIAM.

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

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

1.That the Petition for Resignation is submitted for a minimum period of five (5) years;

2. That Respondent shall seek immediate medical and/or psychological treatment for his alcohol addiction;

3. That Respondent shall not be permitted to apply for readmission to The Florida Bar until:

(a) His civil rights shall have been restored, should same be removed as a result of the pending criminal proceedings;
(b) Such time as he has made full and complete restitution to both the Clients’ Security Fund, as indicated above, and to any claimants who might in the future legitimately allege any defalcations or other losses occasioned by Petitioner’s wrongdoing;
(c) Such time as Respondent can demonstrate his successful alcohol rehabilitation;
(d) Such time as Respondent shall have paid the costs of the present disciplinary proceedings, said costs agreed to be in the amount of ONE THOUSAND ONE DOLLARS FIFTY CENTS ($1,001.50).

4. Respondent acknowledges his understanding that the conditions precedent, above, apply only to the timing of any future Petition for Reinstatement. Should this Petition be approved and should the above conditions be met, Respondent will nevertheless possess the burden of proving, to the satisfaction of this Court, by clear and convincing evidence, that he has been rehabilitated and is deserving of readmission to the practice of law.

The Florida Bar having now filed its response supporting the Petition for Leave to Resign Pending Disciplinary Proceedings and the Court having reviewed the same and determined that the requirements of Rule 11.08(3) are fully satisfied, the Petition for Leave to Resign is hereby approved.

It is so ordered.

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


author: DANIEL S. PEARSON, Judge. BASKIN, Judge

text:
    Rene RAMOS, Appellant, v. The STATE of Florida, Appellee.
    No. 83-949.
    District Court of Appeal of Florida, Third District.
    June 12, 1984.
    Rehearing Denied Sept. 12, 1984.
    Bennett H. Brummer, Public Defender and R. James Pelstring, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and G. Bart Billb-rough, Asst. Atty. Gen., for appellee.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   ON MOTION TO DISMISS STATE’S CROSS-APPEAL

DANIEL S. PEARSON, Judge.

Ramos, the defendant below, having appealed from a judgment adjudicating him guilty of second-degree murder, moves to dismiss the State’s cross-appeal from the trial court’s ruling that the evidence was insufficient to sustain the jury’s verdict of first-degree murder. We deny the motion to dismiss.

The short answer to Ramos’ motion is that a trial court’s determination that the evidence is insufficient to sustain the jury’s verdict is a ruling on a question of law, and Section 924.07(4), Florida Statutes (1983), and Florida Rule of Appellate Procedure 9.140(c)(1)(H) expressly authorize the State to cross-appeal from a “ruling on a question of law” when, as here, the defendant appeals his judgment of conviction. See Mixon v. State, 59 So.2d 38 (Fla.1952) (cross-appeal by State under Section 924.-07(4), Florida Statutes (1951), of trial court’s reduction of conviction to manslaughter after jury verdict of second-degree murder; conviction affirmed and reduction of offense reversed with directions to enter judgment in accordance with jury verdict).

Nothing in State v. Brown, 330 So.2d 535 (Fla. 1st DCA 1976), upon which the defendant relies, dictates a different result. Even accepting, arguendo, Brown’s holding that the State’s right to appeal is purely statutory, Section 924.07(4), Florida Statutes (1983), clearly authorizes the State’s cross -appeal, notwithstanding that, as Brown holds, Section 924.07 does not authorize the State’s direct appeal from a similar ruling.

Ramos fares no better in his alternative claim that double jeopardy considerations preclude the State’s appeal.

The State’s cross-appeal is not subject to dismissal even in instances where double jeopardy would bar a retrial of the defendant. See Sands v. State, 328 So.2d 563 (Fla. 3d DCA 1976) (State’s cross-appeal from acquittal of manslaughter in non-jury trial considered; relief sought on cross-appeal denied on double jeopardy grounds). Cf. United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978) (under 18 U.S.C. § 3731 (1976), which authorizes government appeals, “no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.”). Simply stated, our jurisdiction to hear the State’s cross-appeal is unaffected by the fact that we might not be able to effectively grant the relief sought by the State.

But even if, arguendo, our jurisdiction to entertain the State’s cross-appeal were affected by double jeopardy considerations, it is clear that double jeopardy is a consideration only when a retrial of the defendant would be necessitated by a reversal of the trial court’s ruling. Compare Mixon v. State, 59 So.2d 38, with Watson v. State, 410 So.2d 207 (Fla. 1st DCA 1982); Sands v. State, 328 So.2d 563. Here, where the State’s appeal is from a post-verdict judgment of acquittal on the charge of first-degree murder, a reversal of that ruling would result only in the reinstatement of the jury’s verdict and the directed entry of a judgment thereon, not in a retrial of the defendant. As the Supreme Court stated in United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975):

“A system permitting review of all claimed legal errors would have symmetry to recommend it and would avoid the release of some defendants who have benefited from instructions or evidentia-ry rulings that are unduly favorable to them. But we have rejected this position in the past, and we continue to be of the view that the policies underlying the Double Jeopardy Clause militate against permitting the Government to appeal after a verdict of acquittal. Granting the Government such broad appeal rights would allow the prosecutor to seek to persuade a second trier of fact of the defendant’s guilt after having failed with the first; it would permit him to re-examine the weaknesses in his first presentation in order to strengthen the second; and it would disserve the defendant’s legitimate interest in the finality of a verdict of acquittal. These interests, however, do not apply in the case of a postverdict ruling of law by a trial judge. Correction of an error of law at that stage would not grant the prosecutor a new trial or subject the defendant to the harassment traditionally associated with multiple prosecutions.” 420 U.S. at 353, 95 S.Ct. at 1026, 43 L.Ed.2d at 246-47.

Thus, our jurisdiction is clear, and our ability to grant relief upon the exercise of that jurisdiction unimpeded. The defendant’s motion to dismiss is denied.

BASKIN, Judge

(specially concurring).

I am unable to agree with the majority’s conclusion that “our jurisdiction is clear, and our ability to grant relief upon the exercise of that jurisdiction unimpeded.” Appeal of an acquittal should never be permitted. U.S. Const., amends. V, XIV; Art. I, § 9, Fla. Const. The court’s reduction of the charge from first degree murder to second degree murder constituted an acquittal of the greater offense. Were I free to do so, I would follow State v. Brown, 330 So.2d 535 (Fla. 1st DCA 1976) and dismiss the cross-appeal. Because this court is bound by Mixon v. State, 59 So.2d 38 (Fla.1952), I reluctantly concur.

      . The trial court’s order reads in pertinent part: ”[T]he jury verdict as to the charge of First Degree Murder is set aside and a Judgment of Acquittal as to the charge of First Degree Murder is entered, and a finding of guilt as to the lesser included offense of Second Degree Murder is hereby entered, upon a finding by this Court that the evidence presented at the trial of this cause failed to prove beyond every reasonable doubt that the defendant, a man with no prior criminal past, acted with premeditation uninfluenced or uncontrolled by a dominating passion." (citations omitted).
      The correctness of this ruling is not now before us.

      . Section 924.07(4), Florida Statutes (1951), the authority for the State’s cross-appeal in Mixon, provided that the State may appeal from “[a] ruling on a question of law adverse to the state where the defendant was convicted and appeals from the judgment” and is substantially the same as Section 924.07(4), Florida Statutes (1983), which provides that the State may appeal from ”[a] ruling on a question of law when the defendant is convicted and appeals from the judgment.”

      . Whether the Florida Constitution independently affords the State a right to appeal is a matter which has yet to be resolved by the Florida Supreme Court. The districts are not in accord on this question. Compare State v. C.C., 449 So.2d 280 (Fla. 3d DCA 1983) (no constitutional right); State v. G.P., 429 So.2d 786 (Fla. 3d DCA 1983) (same); State v. Brown, 330 So.2d 535 (1st DCA 1976) (State’s right to appeal is purely statutory), with State v. J.P.W., 433 So.2d 616 (Fla. 4th DCA 1983) (constitutional right to appeal); State v. W.A.M., 412 So.2d 49 (Fla. 5th DCA), rev. denied, 419 So.2d 1201 (Fla.1982) (same). See State v. Harris, 439 So.2d 265 (Fla. 2d DCA 1983) (court can provide State review by recharacterizing order appealed from, treating as petition for common law certiorari, or issuing a writ of prohibition); State v. Stein-brecher, 409 So.2d 510 (Fla. 3d DCA 1982) (review by certiorari).

      . Even in the absence of this specific statutory authority, the State would be permitted to cross-appeal where, as here, the defendant’s appeal is taken from a final order or judgment. See State v. Williams, 444 So.2d 434 (Fla. 3d DCA 1983). We leave for another day the question of whether, given this specific statutory authority, the State under Williams may cross-appeal other than rulings on a question of law.

      . The order appealed by the State in Brown granted the defendant’s motion for acquittal after a jury verdict finding the defendant guilty.

      . Under the federal statute, a finding that double jeopardy would bar further prosecution results in a dismissal of the appeal. Under the Florida Statute, which contains no language making double jeopardy an impediment to the State’s right to appeal, a finding that double jeopardy would bar a retrial does not result in a dismissal of the appeal. See Sands v. State, 328 So.2d 563. It is apparent that since the claim that double jeopardy would bar a retrial is appropriately raised in the trial court when the effort to retry the defendant is made, the unstated basis for an appellate court denying the State relief on the ground that double jeopardy would prevent a retrial of the defendant, see Sands v. State, 328 So.2d 563, is that considerations of judicial economy dictate that the matter be put to an end in the appellate court where it is clear that a retrial cannot be held.


text:
    John Scott MEYERS, etc., Appellant, v. STATE of Florida, Appellee.
    No. 82-1277.
    District Court of Appeal of Florida, Fourth District.
    June 28, 1984.
    Rehearing Denied Sept. 12, 1984.
    Order Clarified Oct. 24, 1984.
    Richard L. Jorandby, Public Defender, Craig S. Barnard, Asst. Public Defender, and Thomas F. Ball, III, West Palm Beach, (Member of the South Carolina Bar), for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   BY ORDER OF THE COURT:

ORDERED upon mandate of the United States Supreme Court issued, May 23, 1984, which quashes the decision of this court filed April 20, 1983, 432 So.2d 97, we hereby adopt the decision of the United State Supreme Court issued April 23, 1984. — U.S. —, 104 S.Ct. 1852, 80 L.Ed.2d 381.

UPON APPELLEE’S MOTION FOR CLARIFICATION

PER CURIAM.

In adopting the decision of the United States Supreme Court issued April 23, 1984, as we did by order dated June 28, 1984, and in denying appellant’s Motion for Rehearing, as we did by order dated September 12, 1984, it was our intention and ruling that appellant’s conviction be affirmed on all accounts.

Appellee’s Motion for Clarification is granted as above stated.

Granted.

HERSEY, HURLEY and WALDEN, JJ., concur.