author: ADKINS, Judge.

text:
    DEPARTMENT OF REVENUE, State of Florida, etc., et al., Petitioners, v. Frank A. FORD, etc., et al., Respondents.
    No. 62555.
    Supreme Court of Florida.
    Sept. 8, 1983.
    Rehearing Denied Nov. 4, 1983.

      Jim Smith, Atty. Gen. and Joseph C. Mel-lichamp, III, Asst. Atty. Gen., Tallahassee, and William M. Barr of Raymond, Wilson, Conway, Barr, Burrows & Jester, Daytona Beach, for petitioners.
    Harlan Tuck of Giles, Hedrick & Robinson, Orlando, and Edwin P.B. Sanders of Landis, Graham, French, Husfeld, Sherman & Ford, DeLand, for respondents.
   ADKINS, Judge.

This is a review of a decision of the Fifth District Court of Appeal declaring section 193.481, Florida Statutes (1981), to be unconstitutional as applied, which is reported at 417 So.2d 1109 (Fla. 5th DCA 1982). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Section 193.481 requires the separate ad valorem assessment and taxation of separately-owned subsurface rights in Florida. The respondents in this case are owners of separate subsurface rights in several thousand acres of land in Volusia County, Florida. Volusia County is within the limits of the multi-county St. Johns River Water Management Taxing District. The respondents’ interests were separately assessed by the Volusia County property appraiser for the years 1975 through 1979. The respondents filed this action against the Department of Revenue and the Property Appraiser of Volusia County, John Turner, asserting a multitude of objections to the assessments and contending that the statute, section 193.481, is unconstitutional on its face and as applied to them. The trial court rejected respondents’ arguments and concluded that the disputed assessments and taxes on respondents’ subsurface rights were lawful and correct. However, the court declared that its judicial conscience was shocked by the “flagrant and continuous disregard of the clear terms of a mandatory statute” as evidenced by the failure of property appraisers in other counties to assess similar property. Accordingly, the trial court directed that a copy of the judgment be furnished to the governor and also ordered the Department of Revenue to take appropriate action to ensure compliance with section 193.481. The Department of Revenue filed an appeal and the taxpayers filed a cross-appeal.

On appeal, the district court concluded that the statute is not necessarily unconstitutional on its face and is capable of being applied constitutionally, provided it is properly implemented as necessary to achieve uniformity and equality in the assessment and just valuation of subsurface mineral rights. However, the court reversed the judgment and remanded the cause to the trial court to act on its findings and to declare the statute unconstitutionally applied as to the assessments of the taxpayers’ subsurface rights in Volusia County. The trial court was also ordered to declare the assessments null and void, to require an appropriate refund of all taxes paid by the taxpayers under the illegal assessments, and to enjoin the collection of taxes levied upon the assessments.

The district court opinion explored in detail the legislative provisions which outline the responsibilities of the Department of Revenue in regards to ad valorem taxation. We agree with the court’s conclusion that the Florida Department of Revenue is clearly charged with implementing the legislature’s intention that Florida’s ad valorem taxation laws are enforced, implemented and administered uniformly throughout the state. § 195.027(1), Fla. Stat. (1981). Central to this duty is the Department’s responsibility of supervising Florida property appraisers and other local taxation officials and ensuring that they comply with the laws which govern the assessment, collection and administration of ad valorem taxes. The evidence clearly supports the conclusion of both the trial judge and the district court that the Department had taken no serious or effective action to require all Florida property appraisers to comply with the requirement of section 193.481 to assess subsurface interests in or to real property. Nevertheless, we cannot agree with the district court’s ultimate conclusion that the fact that these taxpayers’ subsurface rights were assessed in Volusia County when substantially all similar property was not assessed in other counties in the water management district and that the taxpayers’ property so assessed was valued at a level higher than the general level of assessments of substantially all other similar property in other counties in the district entitles those taxpayers to relief from their assessments.

This Court has rejected these arguments on previous occasions. In 1977 in Spooner v. Askew, 345 So.2d 1055 (Fla.1977), the Court rejected the argument that a properly assessed taxpayer can obtain relief by showing inequality of assessments in other counties. We stated: “This Court has never declared as invalid an entire tax roll which assesses property at 100% of full fair market value ... and it has never required a reevaluation of assessed real property values in one county based on comparative inequalities with assessed values in another county. Id. at 1057-58. We expressly recognized that statewide uniformity is “more a goal than a compellable right.” Id. at 1059. Again in 1978 in Straughn v. GAC Properties, Inc., 360 So.2d 385 (Fla.1978), the Court declined to hold, merely on the basis of an allegation that different values had been assigned to adjacent properties of like character in different counties, that a taxpayer could claim a violation of the “just valuation” requirement or that the Department could be compelled to equalize the values. Our tax system should strive to move toward uniformity, but a lack of statewide uniformity generally does not give a taxpayer a cause of action to reduce or cancel a valid tax assessment. We have recognized an exception to this general rule when all or substantially all of the property in a county is systematically assessed at a percentage of value less than a property owner’s property within that same county. Deltona Corporation v. Bailey, 336 So.2d 1163, 1168 (Fla.1976). But, the taxpayer/property owner must show that he has been singled out and specifically discriminated against vis-a-vis other taxpayers generally in the county. Southern Bell Telephone & Telegraph Co. v. County of Dade, 275 So.2d 4 (Fla.1973); Dade County v. Salter, 194 So.2d 587 (Fla.1966). The respondents have not alleged or shown such general, systematic underassessment of property within Volusia County. In no sense have they claimed that their property interests have been singled out for unfavorable treatment as against all other property in the county.

The taxpayers also challenged the validity of the assessment of their severed subsurface mineral rights on the ground that section 193.481, Florida Statutes (1981), is facially void for vagueness because it directs that the use of statutes and regulations relating to the assessment of other real property shall apply to the separate assessment of such subsurface rights only “insofar as they may be applied.” The statute reads:

(1) Whenever the mineral, oil, gas, and other subsurface rights in or to real property in this state shall have been sold or otherwise transferred by the owner of such real property, or retained or acquired through reservation or otherwise, such subsurface rights shall be taken and treated as an interest in real property subject to taxation separate and apart from the fee or ownership of the fee or other interest in the fee. Such mineral, oil, gas, and other subsurface rights, when separated from the fee or other interest in the fee, shall be subject to separate taxation. Such taxation shall be against such subsurface interest and not against the owner or owners thereof or against separate interests or rights in or to such subsurface rights.
(2) The property appraiser shall, upon request of the owner of real property who also owns mineral, oil, gas, or other subsurface mineral rights to the same property, separately assess the subsurface mineral right and the remainder of the real estate as separate items on the tax roll.
(3) Such subsurface rights shall be assessed on the basis of a just valuation, as required by s. 4, Art. YII of the State Constitution, which valuation, when combined with the value of the remaining surface and undisposed of subsurface interests, shall not exceed the full just value of the fee title of the lands involved, including such subsurface rights.

The taxpayers assert that the delegation of discretion to the county appraiser to determine which factors in the statute will be applied when assessing subsurface rights results in an unlawful delegation of legislative authority for failing to provide sufficient standards for assessment.

The district court, recognizing the unique difficulty involved in the valuation of subsurface mineral rights, concluded that the discretion given appraisers by section 193.-481 did not make it facially vague and render it unconstitutional. But, the court also concluded that “there is absolutely no hope for uniformity” in valuation of subsurface rights in property “without detailed guidelines of statewide application.” 417 So.2d at 1116.

Section 193.011 sets forth eight factors and directs property appraisers to take them into consideration in arriving at just valuation. That section reads:

193.011 Factors to consider in deriving just valuation. — In arriving at just valuation as required under s. 4, Art. VII of the State Constitution, the property appraiser shall take into consideration the following factors:
(1) The present cash value of the property, which is the amount a willing purchaser would pay a willing seller, exclusive of reasonable fees and costs of purchase, in cash or the immediate equivalent thereof in a transaction at arm’s length;
(2) The highest and best use to which the property can be expected to be put in the immediate future and the present use of the property, taking into consideration any applicable local or state land use regulation and considering any moratorium imposed by executive order, law, ordinance, regulation, resolution, or proclamation adopted by any governmental body or agency or the Governor when the moratorium prohibits or restricts the development or improvement of property as otherwise authorized by applicable law;
(3) The location of said property;
(4) The quantity or size of said property;
(5) The cost of said property and the present replacement value of any improvements thereon;
(6) The condition of said property;
(7) The income from said property; and
(8) The net proceeds of the sale of the property as received by the seller, after deduction of all of the usual and reasonable fees and costs of the sale, including the costs and expenses of financing, and allowance for unconventional or atypical terms of financing arrangements. When the net proceeds of the sale of any property are utilized, directly or indirectly, in the determination of just valuation of realty of the sold parcel or any other parcel under the provisions of this section, the property appraiser, for the purposes of such determination, shall exclude any portion of such net proceeds attributable to payments for household furnishings or other items of personal property.

The trial judge’s final judgment addressed this issue. We agree with his analysis. He stated:

In [appellees’] insistence that the valuation discretion of local property appraisers must be narrowly restricted and supplanted by rules, regulations and guidelines promulgated by the Legislature or the Department of Revenue, [appellees] fail to recognize that Florida property appraisers are constitutional officers who are of necessity provided with great discretion. Indeed, the preservation of the local property appraiser’s valuation discretion is of fundamental importance so long as the Florida Constitution mandates that ad valorem taxation in Florida shall be based upon just value, which is synonymous with fair market value. Walter v. Schuler, 176 So.2d 81 (Fla.1965). Determination of just value inherently and necessarily requires the exercise of appraisal judgment and broad discretion by Florida property appraisers. As stated in District School Board of Lee County v. Askew, 278 So.2d 272 (Fla.1973):
We have held that the Legislature has the power to regulate the method of assessments, but not to interfere with the assessor’s discretion.... There is great difficulty in precisely fixing property values so that the assessor is provided great leeway in his assessments, so long as he follows in good faith the requirements of the law.” (Citations omitted).
The determination of the just value of real property must be made, in the final analysis, by an exercise of sound appraisal judgment, based upon a proper application of recognized appraisal principles and the valuation guidelines prescribed in the just value law, Section 193.011, Florida Statutes. [Appellees’] insistence that more valuation regulations are needed to achieve the proper assessment of separately-owned subsurface rights in Florida is not supported by the evidence and, indeed, this contention is contrary to the evidence adduced at the trial. There is no question that the assessment of separately-owned subsurface rights is a difficult task. Both the identification of these interests, and their valuation, impose difficult burdens upon Florida property appraisers. But this is only one of many difficult tasks which are imposed by law on Florida property appraisers, who are charged with the duty, among other things, of identifying and determining the just value of all of the real property and tangible personal property within their respective counties each year.

The taxpayers also contend that the appraiser failed to properly follow the statutory valuation criteria specified in section 193.011. We find this argument to be without merit. The trial court expressly stated that the evidence presented refuted this contention of the taxpayers and found that the appraiser had properly and conscientiously considered all applicable valuation criteria specified in the statute. The final judgment of the trial court, in pertinent part reads:

Mr. DeBartolo’s testimony leaves no question in the Court’s mind that the Volusia County Property Appraiser and his staff have made a conscientious and competent effort to determine the just values of the subject parcels as of the first day of each tax year in accordance with recognized appraisal principles and the valuation criteria specified in Section 193.011, Florida Statutes. The subject assessments were made on the basis of careful study of the subject properties as well as diligent investigation and careful consideration of available market data. The subject assessments and the massive amount of data collected by the property appraiser’s staff have been painstakingly reviewed and analyzed by statistical techniques and other methods. Although [appellees] have made a mighty effort to find some fault in the assessments made by the Volusia County Property Appraiser, or in the manner in which he made them, [ap-pellees] failed to do so. Credit should be given where credit is due. The [appel-lees’] painstaking, critical scrutiny of the subject assessments in these actions has revealed that the Volusia County Property Appraiser and his staff conscientiously complied with the law as stated in Section 193.481, and did so in a highly competent, professional manner.

Accordingly, we disagree with the decision of the Fifth District Court of Appeal. We find that section 193.481 has not been unconstitutionally applied and that the assessments on the respondents’ subsurface property rights are lawful and valid.

However, we expressly decline to approve the trial court’s injunction against the Department of Revenue. This Court answered the question of whether a cause of action lies against the Department to compel equalization of ad valorem tax valuations where real property situated in one county is assessed on the basis of a higher value than that assigned to allegedly identical property located in another county in Straughan v. GAC Properties. We declined to hold that the Department could be so compelled merely on the basis of an allegation that different values had been assigned to adjacent properties of like character in different counties. The factual distinctions in this case do not warrant a-contrary result and, thus, this Court’s holding in Straughan is dispositive on the issue of the validity of the trial court’s injunction.

We point out that the property owners suffer no financial detriment whatsoever by virtue of any lack of such separate assessments elsewhere. The lack of such separate assessments merely means that the entire just value is assessed against the surface owner.

The decision of the district court of appeal is quashed in part and approved in part. We agree with the trial judge that the mandatory provision of section 193.481, Florida Statutes (1981), must be implemented. However, this must be done without retention of jurisdiction by the trial court. That portion of the district court of appeal decision which reversed the part of the trial court’s order directing the Department of Revenue to do certain acts is approved. The trial judge had no authority to enter that part of the final judgment. In all other respects the final judgment of the trial judge is approved.

This cause is remanded to the District Court of Appeal with instructions to affirm that portion of the final judgment which we have approved.

It is so ordered.

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


source: Caselaw Access Project

author: PER CURIAM. ALDERMAN,

license: Public Domain

text:
    Gregory Scott ENGLE, Appellant, v. STATE of Florida, Appellee.
    No. 57708.
    Supreme Court of Florida.
    Sept. 15, 1983.
    Rehearing Denied Nov. 4, 1983.

      Michael M. Corin, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellant, Gregory Scott Engle, was convicted of the first-degree murder of Eleanor Kathy Tolin and sentenced to death despite a jury recommendation of life imprisonment. He now appeals both the conviction and sentence. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

The facts are set forth in the trial court’s findings in support of the death penalty:

At approximately 2:00 A.M. on March 13, 1979, Gregory Scott Engle and Rufus E. Stevens plotted to rob the Majik Market and to remove the attendant in order that she may not be able to identify them. At approximately 4:20 A.M. on March 13, 1979, Kathy Tolin, 5 feet tall, 115 pounds, was confronted by Gregory Scott Engle, in the company of Rufus E. Stevens, with a large pocketknife, at which time she turned over the contents of the cash register to Engle, determined later to be $67.00. She was forcibly removed from the Majik Market and placed in a car owned by Rufus Stevens; at which time she was driven to a secluded wooded area nearby and both men raped her. She was then taken to an area approximately 200 feet deeper into the woods where a rope was placed around her neck and she was strangled. Then the large pocketknife was plunged into her back and her vagina was mutilated by a man’s hand or a bottle. Either the rope around her neck or the knife wounds could have killed her. The four-inch tear inside the vagina was inflicted as she was dying. Her body was dragged, face down, into the underbrush almost causing one side of her face to be unrecognizable.
Both defendants returned home around 7:00 A.M., March 13, 1979, and the body of Kathy Tolin was found by two boys around 10:00 A.M. on March 14, 1979.

We address appellant’s points on appeal in the order in which they were raised.

Appellant first argues that the excusal of two prospective jurors who voiced objections to the death penalty denied him his right to be tried by an impartial jury drawn from a representative cross-section of the community. He contends that the excusáis do not comply with the United States Supreme Court’s ruling in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), in which the Court stated:

[A] sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.

Id. at 522, 88 S.Ct. at 1777. In the footnote to the above, however, the Court added the following caveat:

We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.

Id. at 522-23 n. 21, 88 S.Ct. at 1777 n. 21.

This Court has likewise held that one who “would vote against death regardless of the facts presented or the instructions given” may properly be excused from service on a jury. Jackson v. State, 366. So.2d 752, 755 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979). We have also approved the excusal of a prospective juror who testified that he “could not return an advisory sentence of death upon the weighing of extenuating and mitigating factors of the crime as required by section 921.141(2), Florida Statutes . ... ” Witt v. State, 342 So.2d 497, 499 (Fla.), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977).

In light of the foregoing, we find that the exclusions here complained of by appellant were warranted and proper. During voir dire, one of the two jurors excused testified, in part, as follows:

Q. (prosecuting attorney): [Cjould you under any circumstances, regardless of the proof or how strong it is, vote to send the man to the electric chair?
A. I would not vote to send a man to the electric chair.

The same prospective juror was later questioned by the court:

Q. (the court): Would you ever vote to impose the death penalty under any circumstances?
A. At this point, I would say no.
Q. W°uld you refuse to consider imposition of the death penalty in the case we are now about to try, even if he is found guilty by the jury? Would you refuse to consider the death penalty?
A. Yes.

The second excluded juror testified, in part, as follows:

Q. (the court): If he was convicted of murder in the first degree and the second phase of the proceeding in which the jury would listen to mitigating and aggravating circumstances, would you under those circumstances participate in a vote recommending the death penalty?
A. I would not participate in recommending the death penalty.
Q. By that, you mean you would not vote for the death penalty?
A. I would not vote for the death penalty.
Q. Under no circumstances?
A. No.
Q. No matter what the circumstances were, you would not vote for the death penalty.
A. I don’t think I would.

The responses above demonstrate that both of the excused jurors had more than “general objections to the death penalty.” Both admitted that they would refuse to vote for the death penalty regardless of the facts or the circumstances, and one who demonstrates an irrevocable commitment to so vote may properly be dismissed. The trial court did not violate the strictures of Witherspoon.

Appellant’s second point on appeal is that he was denied his due process and fair trial rights when the trial court allowed the jurors to separate during their deliberations over his guilt and go to their homes for the evening. He claims that the error was compounded by the alleged failure to reconvene the jury in the courtroom the next morning prior to its retiring for further deliberations.

Appellant cites as controlling our decision in Raines v. State, 65 So.2d 558 (Fla.1953), in which we reversed a conviction because the trial court had recessed the jury and sent it home for the evening one and one-half hours after the start of guilt deliberations. In holding that the error warranted reversal, we noted, in part:

There was no objection raised when the jury was dispersed, nor were counsel consulted. There is no showing in the way of evidence that defendant’s rights were prejudiced but trials should not be conducted in a way that defendant has good reason for the belief that he was deprived of fundamental rights. The opportunity was open for tampering with the jury and the temptation to do so was such that we are not convinced that the appellant’s trial was conducted with that degree of fairness and security that the bill of rights contemplates. A fifteen hours absence under no restraint whatever leaves too much room to question the bona fides of everything that took place during that time, particularly when one defendant was acquitted and the other was convicted on the same charge and evidence.

Id. at 559-60.

The facts in the case sub judice are, however, distinguishable from those in Raines. Counsel here were consulted; in fact, the record shows that appellant’s counsel agreed to the separation. Furthermore, prior to their separation for the evening, the trial judge admonished the jury to neither discuss the case with outsiders, nor read, watch, or listen to any media reports thereon. Unlike in Raines, we are here convinced that appellant’s trial was conducted with that degree of fairness and security that the bill of rights contemplates, and do not believe that he has good reason to believe that he was deprived of any fundamental rights.

Rule 3.370(b), Florida Rules of Criminal Procedure, provides that unless a jury has been kept together during trial, the court may, after final submission of the cause, allow the jurors to separate and then reconvene. As the jury here was not sequestered during trial, mere separation did not violate said rule.

Appellant argues, however, that the record shows that the jury did not reconvene in the courtroom before retiring for the second time, as is required by rule 3.370(b). The pertinent portion of the transcript states the following:

Whereupon, at 8:30 o’clock a.m., the jury returned to the jury room to further consider their verdict.

Appellant contends that the lack of any indication in the record of the jury having reconvened proves that such did not occur.

Normal procedure in a trial like appellant’s would be for the judge to have assembled and ascertained the presence of all of the jurors the morning after the separation, and then to have allowed them to retire once again. Appellant asks that we assume the unusual and presume that the trial judge did not follow the normal pattern. In the absence of more persuasive evidence than that offered, we decline to do so.

It is just as logical to conclude that the jury did reconvene, or else the court reporter would have had no way of knowing that they retired to the jury room at 8:30 a.m. That, and the absence of any objection by appellant’s counsel, casts doubt upon the assertion that the jurors were not reconvened. If such error occurred, counsel should have noted it for the record and lodged an objection.

Appellant also contends, in relation to the separation of the jury, that section 918.06, Florida Statutes (1979), was violated. That section provides, in part:

If the court permits the jurors to separate, it shall admonish them not to view the place where the offense appears to have been committed.

Since the jury was not so admonished immediately prior to its separation during deliberations, the court committed error requiring a new trial, argues appellant.

The jury was, however, admonished not to view the scene of the crime. On the first day of the trial, prior to recessing for the evening, the judge lectured the jury regarding its role, communication with persons outside the court, and the like. Among the instructions that he gave was the following:

You must not visit the scene of the alleged crime. Should that be necessary, we will go as a group under the supervision of the Court.

Appellant contends that the preceding admonition, given three days prior to the separation of the jury during deliberations, was insufficient compliance with the statute.

We do not think, however, that the statute mandates that such an instruction be given every time that the jury separates. The judge not only complied with the letter of the law but, in our opinion, also accomplished its purpose. We are confident that in a trial of as short a duration as this one, the jury is capable of remembering and heeding the judge’s admonition not to visit the scene of the alleged crime without the necessity of repeating the same every time that the jury separates.

Appellant’s third point on appeal is that the trial court erred by admitting into evidence, over objection, three photographs of the victim. Appellant contends that certain of the photos were unnecessary in that pri- or testimony had already established that which the photos depicted, that they were enlarged and in color in order to inflame the jury, and that there existed black and white photos taken under the medical examiner’s supervision which would have served the same purpose.

The test for the admissibility of photographic evidence is relevance; a relevant photograph is admissible. The photographs were used to corroborate and aid in the description of the testimony of certain witnesses and, as such, were relevant. The color photos appear to have been especially useful in showing the drag marks on the victim’s body. It is immaterial that there was no dispute regarding the occurrence of the crime or the cause of death because “[a] defendant cannot, by stipulating as to the identity of a victim and the cause of death, relieve the State of its burden of proof beyond a reasonable doubt.” Foster v. State, 369 So.2d 928, 930 (Fla.), cert. denied, 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 (1979).

Nor do we find the introduction of color rather than black and white photographs to be error. The state is not limited to the use of black and white photos, and is free to select from among the permissible choices those photographs which it wishes to use. In certain situations color may be the preferable choice, as here where the drag marks on the victim’s body were not visible in a black and white photo. We are likewise undisturbed by the size of the photographs, as they were not unreasonably enlarged.

Appellant’s fourth point on appeal is that the trial court erred in responding to the jury’s question, posed during the guilt deliberation phase of the trial, of whether in order to justify a first degree murder conviction the jury had to be convinced that the defendant killed the victim. The judge answered by reinstructing the jury on murder in the first degree, murder in the second degree, and the law of principals. Appellant, relying on our decisions in Hedges v. State, 172 So.2d 824 (Fla.1965), and Castor v. State, 365 So.2d 701 (Fla.1978), contends that the judge ought to have rein-structed the jury on all degrees of homicide, including manslaughter, and should have included instructions on justifiable and excusable homicide. We, however, do not agree.

In Hedges, prior to the jury retiring the judge provided instructions on all degrees of unlawful homicide and on justifiable and excusable homicide. During its deliberations, the jury asked the court to “go over the different degrees that were stated the other day. There is some confusion as to the different charges here.” 172 So.2d at 825. The court repeated the instructions on unlawful homicide alone, refusing to rein-struct on justifiable and excusable homicide, and we reversed, observing:

In Tipton we held that the manslaughter statute ... necessarily requires a definition of excusable homicide as an essential of a complete charge.
[I]n order to supply a complete definition of manslaughter as a degree of unlawful homicide it is necessary to include also a definition of the exclusions, [i.e. justifiable and excusable homicide]
[T]he instant problem arose when the trial judge repeated — at jury request — his instructions on degrees of homicide. It is proper for a judge to limit the repetition to the charges requested. However, the repeated charges should be complete on the subject involved. The giving of a partial instruction fails to inform the jury fully and often leads to undue emphasis on the part given as against the part omitted.
In the instant case when the judge repeated his charges on degrees of homicide he should have included the requested definitions of justifiable and excusable homicide. Failure to do so erroneously left with the jury an incomplete, and, potentially misleading instruction.

172 So.2d at 825-26 (citations omitted).

In the case sub judice, however, the judge was not asked to review the different degrees of homicide. He was asked a question regarding the elements requisite for a first-degree murder conviction, and when the question posed is that narrow and specific, the judge may limit the repetition to the charges requested. The judge here, evidently because the jury was confused regarding the degrees of murder and how active a role is required in order to be held liable therefor, provided reinstructions on first and second-degree murder and on the law of principals. We are of the opinion that the repeated charges were “complete on the subject involved.” 172 So.2d at 826.

More on point than Hedges is our decision in Henry v. State, 359 So.2d 864 (Fla.1978). In Henry, at the conclusion of a murder trial, the jury was instructed on first-degree murder, attempted first-degree murder, second-degree murder, third-degree murder, attempted third-degree murder, manslaughter, justifiable homicide, and excusable homicide.

During its deliberations, the jury in Henry sent the judge a note stating, in part:

We do have a problem understanding the difference in murder in the first degree and murder in the second degree. In other words, can this be clarified?

359 So.2d at 865.

In response to the above, the judge rein-structed the jury on first and second-degree murder. The defendant appealed the resulting concurrent life terms to the district court of appeal, contending that the limited reinstruction was an error and that the trial court should have reinstructed the jury on all degrees of unlawful homicide and on justifiable and excusable homicide. The district court affirmed the trial court, and certified to this Court the following question:

WHETHER A TRIAL COURT MUST REINSTRUCT THE JURY UPON ALL DEGREES OF HOMICIDE AND/OR UPON JUSTIFIABLE AND EXCUSABLE HOMICIDE UPON TIMELY REQUEST THEREFOR WHERE THE COURT REINSTRUCTS UPON FIRST AND SECOND DEGREE MURDER AFTER A REQUEST BY THE JURY TO CLARIFY THE “DIFFERENCE IN MURDER IN THE FIRST DEGREE AND MURDER IN THE SECOND DEGREE”?

359 So.2d at 865-66.

We answered the question in the negative and approved the district court’s decision, noting the following regarding limited rein-structions:

In Hysler v. State, 85 Fla. 153, 95 So. 573 (1923), this Court established the principle that it is proper for a judge to limit the repetition of the charges to those specially requested as any additional instruction might needlessly protract the proceedings. We echoed this principle in Hedges v. State, 172 So.2d 824 (Fla.1965), but added the caveat that the repeated charges should be complete on the subject involved.
We can find no abuse of discretion in limiting reinstruction to a direct response to the jury’s specific request. Indeed, to do otherwise might not only create confusion in the minds of the jurors but might give the appearance of placing the trial judge in the role of an interested advocate rather than an impartial arbiter. We also note that requiring the court to repeat all of its original instructions whenever the jury requests additional instructions upon a particular point would be both exhausting and time-consuming to the court, the jury, and the parties. The result might be a jury which is deterred from requesting and a court which is restrained from giving, supplemental instructions to help clarify a particular issue.

359 So.2d at 866-67 (citations omitted).

We then distinguished the situation in Henry from that in Hedges, explaining why limited instructions were sufficient in the former and not in the latter:

[T]he specific holding in Hedges was that where a jury specifically requests rein-struction on the “different degrees” of the charges levied, and, accordingly, the court reinstructs on manslaughter and the other degrees of unlawful homicide, the court is then compelled to reinstruct on excusable and justifiable homicide as a necessary concomitant of manslaughter. The jury in Hedges was given an incomplete instruction with regard to manslaughter. In the instant case, the jury was not reinstructed on manslaughter but was recharged exclusively on first and second degree murder. When the initial jury instruction on manslaughter was given, so were the charges on justifiable and excusable homicide. Consequently, petitioner’s reliance upon Hedges v. State, supra, is misplaced.
Petitioner’s argument that the jury’s understanding of any “unlawful killing” must necessarily depend on its comprehension of “lawful killings” is persuasive. It is obvious that before the defendant can be convicted of any unlawful killing, the jury must conclude that the homicide was not lawful. However, in the case sab judice, it is apparent that the jury had already made that determination by requesting merely a clarification of the “difference” between first and second degree murder. Had they not determined whether the homicide was lawful or unlawful, they would have solicited rein-structions on justifiable and excusable homicide or the other degrees of unlawful homicide, or both. We can contemplate numerous situations where the jury’s request does not suggest necessarily that they have already determined whether a homicide has been lawful or unlawful. In those situations, the defendant is entitled to reinstructions on lawful homicide.

359 So.2d at 867-68 (citation and footnotes omitted).

In the case sub judice, as in Henry, the jury’s request for clarification was a narrow one, so the court was not compelled to repeat the entire set of instructions initially given. The reinstruction given was proper in view of our rulings in Hedges and Henry.

Appellant’s next point on appeal is that he was denied the due process of law guaranteed by the constitutions of Florida and the United States by the submission to the jury of misleading written instructions. The instructions, those in section 2.13(i) of the Florida Standard Jury Instructions in Criminal Cases, Second Edition, instruct the jury on the weight to be given out-of-court statements made by a defendant. The printed instructions contain the words “statement,” “admission,” and “confession,” intending that the applicable term be utilized. When the judge read the above instructions, he, at the request of appellant’s counsel, used the word “statement” rather than “admission” or “confession,” wherever a choice was given. But, when he gave the jury a copy of the instructions for use during deliberations, he did not in any way delete or cover the alternative words “admission” and “confession” which are printed in parentheses following “statement.” Appellant contends that such constituted fundamental, reversible error. We disagree.

The trial court gave, orally, the proper standard jury instruction on the subject. The printed instruction given the jury read the same except for the parenthetical words previously noted. While it might have been preferable for the words in parentheses to have been deleted, we do not think that their presence was so misleading to the jury as to fatally flaw the instructions.

The weight which the instructions direct that an out-of-court statement be given is the same regardless of which of the three words is inserted. The presence of the parenthetical alternatives should not have interfered with the jury’s understanding and analysis of the evidence.

Appellant notes that the importance of not using the word “confession” indiscriminately is shown by the caveat, cautioning against such, located at the bottom of the printed instructions. While he is correct, we note that the jury, if it utilized the printed instruction, would likewise have seen that caveat and thus been warned against automatic, unthinking use of the word “confession”.

In addition to the foregoing, we note that appellant’s trial counsel never requested that the words “admission” and “confession” be deleted from the printed instructions and made no objection when the same were submitted to the jury. In fact, the issue was never raised until the cause was appealed. As appellee points out, “except in the rare cases of fundamental error ... appellate counsel must be bound by the acts of trial counsel.” Castor, 365 So.2d at 703 (footnote omitted). The failure to delete the two words complained of from the printed instructions simply does not constitute fundamental error and is not grounds for reversal and a new trial.

Appellant’s sixth point on appeal is that the trial court erred by rejecting the jury’s recommendation of life imprisonment and instead imposing the death penalty. We note at the outset the error of appellant’s contention that a sentence of death imposed by a trial court after a jury recommendation of life imprisonment constitutes double jeopardy. We held to the contrary in Douglas v. State, 373 So.2d 895 (Fla.1979). See also Phippen v. State, 389 So.2d 991 (Fla.1980).

As to the propriety of the judge’s failure to follow the jury’s sentence recommendation, “[i]n order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.” Tedder v. State, 322 So.2d 908, 910 (Fla.1975). The trial judge found four aggravating circumstances, to wit: that the murder was committed after appellant had engaged in a kidnapping and rape, that it was committed to avoid a lawful arrest, that it was committed for pecuniary gain, and that it was especially heinous, atrocious, and cruel. He found no mitigating circumstances. Review of the record demonstrates the validity and propriety of the above findings.

Appellant contends, with regard to said findings, that the judge committed several errors. First, he contends that the judge “manifestly overlooked and failed to consider” any nonstatutory mitigating circumstances. It appears from the record, however, that the trial judge did consider such and simply found that none existed.

Appellant also asserts that his due process rights were violated when the appellee was permitted to argue before the trial judge at sentencing for the applicability of .two aggravating factors that had not been argued before the jury. He contends that he should be allowed- “to have the existence and validity of aggravating circumstances determined as they were placed before his jury.” The trial judge, however, is not limited in sentencing to consideration of only that material put before the jury, is not bound by the jury’s recommendation, and is given final authority to determine the appropriate sentence. Prior cases make it clear that during sentencing, evidence may be presented as to any matters deemed relevant, see, e.g., Alvord v. State, 322 So.2d 533 (Fla.1975), cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976), and that a trial judge may consider information, such as presentence and psychological reports, which were not considered by the jury during its sentencing deliberations. Swan v. State, 322 So.2d 485 (Fla.1975). Furthermore, the record indicates that the trial judge ordered the presentence investigation report on appellant, after the jury’s recommendation had been received, at the request of appellant’s trial counsel. Use of said information, with counsel being apprised thereof, was not improper and did not violate Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).

Appellant’s last point on appeal is that the trial court erred by considering during sentencing evidence that was not introduced during the guilt determination phase of his trial. Specifically, he refers to information obtained from confessions and statements made by Rufus Stevens, who was found guilty at a separate trial of the same murder as appellant. Consideration, in sentencing appellant, of a confession admitted at Stevens’ trial unconstitutionally denies appellant an opportunity to cross-examine and confront Stevens, contends appellant. He further asserts that the judge was not only aware of, but also considered the “inadmissible evidence”. See Alford v. State, 355 So.2d 108 (Fla.1977), cert. denied, 436 U.S. 935, 98 S.Ct. 2835, 56 L.Ed.2d 778 (1978).

Appellant cites Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), and Gardner v. Florida, for the proposition that the “right of confrontation protected by cross-examination is a right that has been applied to the sentencing process.” Specht held unconstitutional Colorado’s sex offender statute which allowed a critical finding to be made without a hearing and on the basis of hearsay evidence to which the defendant had no access. The Court reasoned:

Under Colorado’s criminal procedure, here challenged, the invocation of the Sex Offenders Act means the making of a new charge leading to criminal punishment. The case is not unlike those under recidivist statutes where an habitual criminal issue is “a distinct issue” on which a defendant “must receive reasonable notice and an opportunity to be heard.” Due process, in other words, requires that he be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own.... None of these procedural safeguards we have mentioned is present under Colorado’s Sex Offenders Act. We therefore hold that it is deficient in due process as measured by the requirements of the Fourteenth Amendment.

386 U.S. at 610-11, 87 S.Ct. at 1212-13 (citations omitted).

The requirements of due process of law apply to all three phases of a capital case in the trial court: 1) The trial in which the guilt or innocence of the defendant is determined; 2) the penalty phase before the jury; and 3) the final sentencing process by the judge. Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978); Gardner v. Florida; Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979). Although defendant has no substantive right to a particular sentence within the range authorized by statute, sentencing is a critical, stage of the criminal proceeding.

The sixth amendment right of an accused to confront the witnesses against him is a fundamental right which is made obligatory on the states by the due process of law clause of the fourteenth amendment to the United States Constitution. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The primary interest secured by, and the major reason underlying the confrontation clause, is the right of cross-examination. Pointer v. Texas. This right of confrontation protected by cross-examination is a right that has been applied to the sentencing process. Specht v. Patterson.

In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), it was held that a statement or confession of a co-defendant which implicates an accused is not admissible against the accused unless he has an opportunity to confront and cross-examine the co-defendant. To admit such a statement is unquestioned error. In Hall v. State, 381 So.2d 683 (Fla.1979), we held that statements or confessions made by a co-defendant are inadmissible as evidence against defendant at the guilt phase of the trial.

The record shows that the trial judge was not only made aware of this inadmissible evidence but he did, in fact, consider it. Thus, the distinction made by this Court in Alford v. State is not applicable.

The consideration of the confession or statement of a co-defendant is quite different from the consideration of a presen-tence report. If the defendant disputes the truth of a presentence report, he has the right to secure confrontation and cross-examination if he wishes to do so. See Eutsey v. State, 383 So.2d 219 (Fla.1980). On the other hand, a defendant cannot require a co-defendant to waive his constitutional right to remain silent and force him to testify during the sentencing procedure.

The conviction of defendant is affirmed, but sentence is vacated and the cause is remanded with instructions to conduct another sentence hearing. It will not be necessary to empanel another jury.

It is so ordered.

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

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

ALDERMAN,

Chief Justice, concurring in part, dissenting in part.

I concur with the affirmance of Engle’s conviction. I dissent, however, to the reversal and remand of his death sentence on the basis that Engle was denied his sixth amendment right to confront a witness during the sentencing phase of his trial. Engle argues that he was deprived of this constitutional right because the trial court, during the sentencing phase, considered a confession admitted at Stevens’ trial and denied him an opportunity to cross-examine and confront Stevens. This information was furnished to defendant and his counsel for rebuttal purposes pursuant to Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). The only question is whether the trial judge should have considered the information without permitting cross-examination of the codefendant.

In reaching the decision that the due process requirement regarding confrontation of a witness required this cross-examination during the sentencing phase of En-gle’s ease, the majority opinion relies primarily on Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967); and Gardner v. Florida. These decisions, however, do not compel the conclusion reached by the majority.

Specht is distinguishable on its facts and, as the Court stated in its opinion, deals with a “radically different situation.” 386 U.S. at 608, 87 S.Ct. at 1211. In Specht the Court was confronted with a sentencing procedure involving Colorado’s Sex Offenders Act. The Court found that sentencing Specht under the Sex Offenders Act rather than the statute for which he was convicted actually resulted in “the making of a new charge leading to criminal punishment.” Id. at 610, 87 S.Ct. at 1212 (emphasis added). In reaching its decision that this introduction of what constituted a new charge at the sentencing phase violated the defendant’s due process rights, the Court made it clear that it was not receding from its holding in Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949).

The Court in Williams specifically stated: The due-process clause should not be treated as a device for freezing the evidential procedure of sentencing in the mold of trial procedure. So to treat the due-process clause would hinder if not preclude all courts — state and federal— from making progressive efforts to improve the administration of criminal justice.

337 U.S. at 251, 69 S.Ct. at 1085. In applying this rationale to a death penalty case, the Court held that it could not find that “the due-process clause renders a sentence void merely because a judge gets additional out-of-court information to assist him in the exercise of this awesome power of imposing the death sentence.” Id. at 252, 69 S.Ct. at 1085. The decision of the Supreme Court of the United States in Williams, holding that due process does not require that a defendant be allowed to confront and cross-examine witnesses testifying at his sentencing proceeding, is controlling in the present case.

Gardner v. Florida does not compel reversal of the death sentence. Under the facts of the present case, Engle’s counsel was apprised of all information upon which the trial judge relied in sentencing Engle and was given full opportunity to deny or explain this information.

Accordingly, I would find no due process violation, and I would affirm both the conviction and the sentence of death.

BOYD, J., concurs.


author: ADKINS, Justice.

text:
    DEPARTMENT OF INSURANCE, State of Florida, et al., Appellants, v. SOUTHEAST VOLUSIA HOSPITAL DISTRICT, et al., Appellees. FLORIDA PATIENT’S COMPENSATION FUND, et al., Appellants, v. SOUTHEAST VOLUSIA HOSPITAL DISTRICT, et al., Appellees.
    Nos. 63698, 63699 and 63751.
    Supreme Court of Florida.
    Sept. 15, 1983.
    Rehearing Denied Nov. 4, 1983.

      David A. Yon, Legal Division, Dept, of Ins., Tallahassee, and Talbot D’Alemberte and Jeffrey B. Crockett of Steel, Hector & Davis, Miami, and Richard B. Collins and Samuel R. Neel, III of Perkins & Collins, Tallahassee, for appellants.
    Ben H. Wilkinson, Neil H. Butler and Cathi C. O’Halloran of Pennington, Wilkinson & Dunlap, Tallahassee, Adams, Hill & Fulford, Orlando, Peter J. Winders and Jacob D. Varn of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, John D. Buchanan, Jr., of Henry, Buchanan, Mick & English, Tallahassee, Richard B. Adams, Jr. of Adams, Ward, Hunter, Angones & Adams, Miami, and Scott R. McMillen of Ma-teer, Harbert, Frey, Bechtel & Phalin, Orlando, for appellees.
    Robyn Greene of Greene & Cooper, and Rosenblatt, Greene & Arnowitz, Miami, amicus curiae for Michael Rae.
    Robert L. Shevin, Jeffrey M. Weissman, Ronald L. Book and Gary S. Phillips of Sparber, Shevin, Rosen, Shapo & Heilbron-ner, Miami, amicus curiae for Florida Physicians United For Health Cost Reform.
    Larry Klein, West Palm Beach, amicus curiae for The Academy of Florida Trial Lawyers.
    Bruce Culpepper and F. Townsend Hawkes of Culpepper, Beatty & Turner, Tallahassee, amicus curiae for Florida Medical Malpractice Joint Underwriting Association.
    Charles H. Baumberger of Rossman & Baumberger, Miami, amicus curiae for Daisey Lopez.
    Robert D. Peltz of Rossman & Baumber-ger, Miami, amicus curiae for Dade County Trial Lawyers.
   ADKINS, Justice.

This cause is before this Court on a direct appeal from a decision of the First District Court of Appeal in Southeast Volusia Hospital District v. State of Florida, Department of Insurance, 432 So.2d 592 (Fla. 1st DCA 1983), which declared section 768.-54(3)(c), Florida Statutes (1981), unconstitutional. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

Appellants are the Florida Patient’s Compensation Fund (Fund) and the Department of Insurance (Department). Appellees are fifty-seven Florida hospitals who were members of the Fund during either Fund year 1977-78, 1978-79, or both. Section 768.54 created the Florida Patient’s Compensation Fund. Section 768.54(3)(c) specifies the terms of the Fund’s contracts with its members. The Fund, which commenced operation in 1975, is a non-profit entity which provides medical malpractice protection to the physicians and hospitals who join it. The act creating the Fund permits all health care providers, other than hospitals, to become members if they choose to, but hospitals are required to join unless they can demonstrate financial responsibility for malpractice claims. The Fund is financed through base fees paid by its members, additional fees, and assessments.

Section 768.54(3)(c) reads:

(c) Fees and assessments. — Annually, each health care provider, as set forth in subsection (2), electing to comply with paragraph (2)(b) shall pay the fees established under this act, for deposit into the fund, which shall be remitted for deposit in a manner prescribed by the Insurance Commissioner. The limitation of liability provided by the fund shall begin July 1, 1975, and run thereafter on a fiscal-year basis. For the first year of membership, each participating health care provider shall pay a base fee for deposit into the fund in the amount of $1,000 for any individual, or $300 per bed for any hospital. Those entering the fund after the fiscal year has begun shall pay a prorated share of the yearly fees for a prorated membership. The base fee charged after the first year of participation shall be $500 for any individual, or $300 per bed for any hospital. The base fees to be paid by those health care providers defined in subparagraphs (l)(b)5., 6., 7., and 8. shall be established by the fund on an actuarially sound basis. In addition, after the first year of operation, additional fees may be charged but shall be appropriately prorated for the portion of the year for which the health care provider participated in the fund, based on the following considerations:
1. Past and prospective loss and expense experience in different types of practice and in different geographical areas within the state;
2. The prior claims experience of the members covered under the fund; and
3. Risk factors for persons who are retired, semi-retired, or part-time professionals.
Such base fees may be adjusted downward for any fiscal year in which a lesser amount would be adequate and in which the additional fee would not be necessary to maintain the solvency of the fund. Such additional fee shall be based on not more than two geographical areas with three categories of practice and with categories which contemplate separate risk ratings for hospitals, for health maintenance organizations, for ambulatory surgical facilities, and for other medical facilities. Each fiscal year of the fund shall operate independently of preceding fiscal years. Participants shall only be liable for assessments for claims from years during which they were members of the fund; in cases in which a participant is a member of the fund for less than the total fiscal year, a member shall be subject to assessments for that year on a pro rata basis determined by the percentage of participation for the year. The fund shall be maintained at not more than $15,000,000 per fiscal year. Additional fees, assessments, or refunds shall be set by the Insurance Commissioner after consultation with the board of governors of the fund. Nothing contained herein shall be construed as imposing liability for payment of any part of a fund deficit on the Joint Underwriting Association authorized by s. 627.351(7) or its member insurers. If the fund determines that the amount of money in an account for a given fiscal year is in excess of or not sufficient to satisfy the claims made against the account, the fund shall certify the amount of the projected excess or insufficiency to the Insurance Commissioner and request the Insurance Commissioner to levy an assessment against or refund to all participants in the fund for that fiscal year, prorated, based on the number of days of participation during the year in question. The Insurance Commissioner shall order such refund to, or levy such assessment against, such participants in amounts that fairly reflect the classifications prescribed above and are sufficient to obtain the money necessary to meet all claims for said fiscal year. In no case shall any assessment for a particular year against any health care provider, other than those health care providers defined in subparagraphs (l)(b)l., 5., 6., and 7., exceed an amount equal to the fees originally paid by such health care provider for participation in the fund for the year giving rise to such assessment. If any assessments are levied in accordance with this subsection as a result of claims in excess of the limitation of a provider’s liability of $500,000 per occurrence as specified in paragraph (2)(b), and such assessments are a result of the liability of certain individuals and entities specified in paragraph (2)(e), only hospitals shall be subject to such assessments.

In October of 1981, the Fund certified to the Department deficiencies for the Fund years 1977-78 and 1978-79 totalling some $17 million and sought an assessment against Fund members. A hearing officer found the assessments necessary. The Department levied these assessments against the Fund participants to meet the deficiencies. The Department interpreted section 768.54(3)(c) as precluding assessments against health care providers, other than hospitals, which would exceed the amount of fees paid by those individuals for participation in the Fund for the year found to be deficient. As a result, $10.5 million in additional assessments for claims stemming from charges of physician malpractice were assessed against the hospitals (also HMO’s, ambulatory surgical centers, and other medical facilities participating in the Fund).

Appellee hospitals filed an appeal to the First District Court of Appeal arguing: 1) that section 768.54(3)(c) did not require the assessments against the hospitals as ordered; 2) that the order was not supported by substantial evidence; and 3) that the statute was unconstitutional. The district court held that the statute was an unlawful delegation of legislative power because it lacked sufficient standards and guidelines to the Department for its proper administration of the Fund.

The Fund and the Department immediately filed this appeal and a motion for expedited review to this Court. The motion was granted. On June 9,1983, we issued an order, after hearing the oral arguments in this case, declaring the statute to be constitutional both on its face and as applied. Department of Insurance v. Southeast Volusia Hospital District, 432 So.2d 592 (Fla.1983). Accordingly, the decision of the district court was reversed. We stated at that time that this opinion would follow, that this opinion would follow.

The district court found the statute to be almost totally absent of guidelines and standards for the establishment of fees and assessments. The opinion cited six provisions which were deemed invalid for giving “sole discretion” to the Fund in the absence of sufficient guidelines. The first provision held to be constitutionally infirm is the provision which directs that base fees for health maintenance organizations, ambulatory surgical centers and other medical facilities (as defined by § 768.54(l)(c)) are to be “established by the fund on an actuar-ially sound basis.” The district court stated that this part of the statute left to the Fund sole discretion for establishing the amount of fees. We do not agree. We do agree with the district court’s conclusion that the crucial test in determining whether a statute amounts to an unlawful delegation of legislative power is whether the statute contains sufficient standards or guidelines to enable the agency and the courts to determine whether the agency is carrying out the legislature’s intent. Askew v. Cross Key Waterways, 372 So.2d 913 (Fla.1978); Lewis v. Bank of Pasco County, 346 So.2d 53 (Fla.1976). The courts of Florida have found concepts of actuarial soundness to be a meaningful standard. McNulty v. Blackburn, 42 So.2d 445, 447 (Fla.1949). The Florida Constitution employs the standard of “sound actuarial basis.” Art. X, § 14, Fla. Const. These principles are also incorporated in other statutes. §§ 627.062(2)(a) & 627.0651(2), Fla.Stat. (Supp.1982). There is simply no merit to this argument.

The second provision found invalid by the lower court is that which provides that base fees in general may be “adjusted downward” for any fiscal year in which a “lesser amount would be adequate.” We do not find this criterion to be vague or stan-dardless. Providing a clearly defined and limited option to the Fund to make such adjustments when additional fees are not necessary to maintain the solvency of the Fund is not an example of an improper delegation of legislative power. The Tribune Co. v. School Board of Hillsborough County, 367 So.2d 627, 628 (Fla.1979).

The district court also found the statute deficient for failing to state expressly how or when additional fees are to be set and whether they are a prerequisite to the levying of assessments. The statute does set forth explicit factors which are to be applied in setting additional fees. The statute does not unconstitutionally delegate legislative power simply because it leaves the determination of when these fees will be set up to the Department. The legislature may delegate to authorized officials and agencies the authority to determine facts to which the established policies of the legislature are to apply. Florida Welding & Erection Service, Inc. v. American Mutual Insurance Co., 285 So.2d 386, 388 (Fla.1973). It is the power to say what the law is that is prohibited from being delegated. Coca-Cola Co., Food Division v. State, Department of Citrus, 406 So.2d 1079 (Fla.1981), appeal dismissed sub nom Kraft, Inc. v. Florida Department of Citrus, 456 U.S. 1002, 102 S.Ct. 2288, 73 L.Ed.2d 1297 (1982); Rosslow v. State, 401 So.2d 1107 (Fla.1981).

The fifth area of the statute attacked by the district court for an obvious absence of standards and guidelines is the portion of section 768.54(3)(c) which deals with assessments. The court found that those provisions give “total discretion” to the Fund “to determine whether the monies collected in a given fund year are in excess or insufficient to satisfy claims made against the fund year” without supplying any guidance to assist the Fund in this determination. Again, we find no merit in the proposition that this constitutes the sort of delegation which is a non-delegable legislative function. The question of determining when a deficit exists or not is a technical issue of implementation and not a fundamental policy decision. To require constant legislative supervision of the question of when a deficit exists or the selection from the numerous available tests that might be used for that purpose is neither practical nor required by the constitution. Cf. State v. Bender, 382 So.2d 697 (Fla.1980) (Court approved statutory provisions directing the Department of Highway Safety & Motor Vehicles and the Department of Health & Rehabilitative Services to establish and approve appropriate testing methods for determining alcohol intoxication).

Finally, the district court found fault with the statute’s provisions for levying assessments. The court found the statutory standard for levying assessments ambiguous and a delegation problem because different interpretations of this language were offered by the Fund and the hospitals. This finding is contrary to well established principles of law. A statute is not unconstitutional simply because it is subject to differing interpretations. The administrative construction of a statute by the agency charged with its administration is entitled to great weight. We will not overturn an agency’s interpretation unless clearly erroneous. State ex rel. Biscayne Kennel Club v. Board of Business Regulation, 276 So.2d 823, 828 (Fla.1973). In addition, when an interpretation upholding the constitutionality of a statute is available to this Court, we must adopt that construction. Miami Dolphins, Ltd. v. Metropolitan Dade County, 394 So.2d 981, 988 (Fla.1981); Leeman v. State, 357 So.2d 703, 705 (Fla.1978).

The statute requires the Insurance Commissioner to levy assessments against fund members in amounts which “fairly reflect the classifications prescribed above.” The Fund and the Department interpret this part of the statute as requiring assessments to be fairly related to the same criteria that are utilized for setting the original fees. The Department has followed precisely this approach in levying the assessments being contested in this appeal. The details of this approach were developed by the Department’s actuary. The hearing officer found that this method fairly reflected the assessments to the classifications prescribed in the statute. The method utilized involves modification to allow for the statute’s proscription against assessing health care providers more than “an amount equal to the fees originally paid by such health care provider for participation in the fund for the year giving rise to such assessments.” The Department and the Fund contend that this statutory cap places a total cumulative limit on how much a physician can be assessed for a particular fund year, the cap being equal to one hundred percent of the member’s fees originally paid for the fund year giving rise to the assessment. Appellee hospitals contend that the statute should be read as allowing each member to be assessed one hundred percent of his fees each year that passes after the fund year for which the assessment is being levied. The Department’s construction of the statutes is clearly based upon a plain reading of the statute and we uphold that interpretation.

The appellee hospitals also challenge the statute as violating the equal protection clauses of the Florida and Federal Constitutions. The district court did not address this issue having found the issue of unlawful delegation to be dispositive. Under the equal protection clauses, governmental acts that classify persons arbitrarily may be invalid if they result in treating similar people in a dissimilar manner. State v. Leicht, 402 So.2d 1153, 1155 (Fla.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1611, 71 L.Ed.2d 848 (1982); State v. Lee, 356 So.2d 276, 279 (Fla.1978). Appellants contend that hospitals and physicians are not similarly situated and we agree. While both may fall under a general classification, health care providers, they clearly are not similarly situated. Hospitals are corporate entities with larger budgets and much larger numbers of patients over which to spread costs. There are numerous differences between the two which justify the different treatment of these two groups by the statute. We find no merit to appellees’ argument on this issue.

The hospitals have also objected to the statute as violating due process. To comply with the constitutional guarantee of due process of law, all legislative enactments must be rationally related to the achievement of a legitimate legislative purpose. Rollins v. State, 354 So.2d 61 (Fla.1978). The provisions of the statute plainly satisfy the purpose of the statute, namely, to provide medical malpractice protection for Florida health care providers under terms accepted by the participants.

Finally, the issue has also been raised in this appeal of whether the Department failed to find that the assessments' being levied were supported by competent, substantial evidence. The district court noted that the hearing officer, in an exhaustive recommended order which was later adopted by the Department, had concluded that the assessments levied by the Department were proper. In addition, the record reflects that the appellee hospitals were afforded the full protection of chapter 120. The correct standard of review of this type of administrative hearing is as follows:

[O]ur task is only to assure that the affected party was protected by adherence to Chapter 120 processes, that the disposi-tive finding is supported by substantial competent evidence appropriate to the issue, and that the agency was not “clearly erroneous or unauthorized,” Gay v. Canada Dry Bottling Co. of Florida, Inc., 59 So.2d 788, 790 (Fla.1952), in interpreting the statute given in its charge to enforce.

Barker v. Board of Medical Examiners, 428 So.2d 720, 723 (Fla. 1st DCA 1983) (emphasis supplied). The district court correctly found that there was competent substantial evidence to support the need for an assessment and the hearing officer’s recommendations. We find no merit in the appellees’ challenge to this finding.

For these reasons, we upheld the constitutionality of section 768.54(3)(c) and reversed the decision of the district court.

It is so ordered.

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


author: EHRLICH, Justice.

text:
    Gary Robin EATON, et al., Petitioners, v. STATE of Florida, Respondent.
    No. 61985.
    Supreme Court of Florida.
    Sept. 29, 1983.
    Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for petitioners.

      Jim Smith, Atty. Gen. and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for respondent.
   EHRLICH, Justice.

Petitioners Eaton and Gombos request review of the decision of the Fourth District Court of Appeal in Eaton v. State, 410 So.2d 933 (Fla. 4th DCA 1982), on grounds of direct and express conflict with Turner v. State, 369 So.2d 670 (Fla. 1st DCA 1979), disapproved, Potts v. State, 430 So.2d 900 (Fla.1982), and Boyd v. State, 389 So.2d 642 (Fla. 2d DCA 1980), pursuant to article V, section 3(b)(3) of the Florida Constitution.

Gombos and Dawn Sobel undertook to help Eaton escape from prison, implementing a plan developed by Eaton and several fellow prisoners. During the escape attempt, Gombos’s shotgun discharged, killing a guard. Gombos claimed the discharge was accidental, caused by a defect in the gun. Gombos and Eaton were tried together, and the jury found Gombos guilty of second-degree murder and aiding in an attempt to escape and Eaton guilty of first-degree murder and attempting to escape. Eaton was sentenced to life imprisonment; Gombos was sentenced to seventy-five years, and the court retained jurisdiction over the first third of the sentence. The Fourth District Court of Appeal affirmed their convictions and sentences on all counts.

On petition for review, Gombos and Eaton raise three issues. First, Eaton contends that his conviction for first-degree murder is legally inconsistent with Gom-bos’s conviction for second-degree murder in light of the fact that Gombos was the actual gun-wielder in the murder. In support, Eaton cites cases which commit Florida to the principle that jury verdicts must be legally consistent. In Mahaun v. State, 377 So.2d 1158 (Fla.1979), this Court held that a conviction for third-degree felony murder had to be vacated because the jury failed to find the defendant guilty of the underlying felony. In Redondo v. State, 403 So.2d 954 (Fla.1981), a jury found the defendant guilty of displaying a firearm in the commission of a felony but failed to find the defendant guilty of any felony. The distinction between these cases and the case at bar is obvious. In the cited cases the underlying felony was a part of the crime charged — without the underlying felony the charge could not stand. The jury is, in all cases, required to return consistent verdicts as to the guilt of an individual on interlocking charges.

Such is not the situation now before us. Here, although two defendants were charged and tried jointly, they were separate defendants and the determination as to the guilt or innocence of each was a separate issue before the jury. This Court has recently held that a defendant tried separately from his co-conspirators is not entitled to raise the conviction of a co-conspirator for a lesser offense as a bar to his own conviction for a greater offense. Potts v. State. In so holding we recognized that different evidence may be admissible against different defendants and that “jury pardon” may result in conviction for a lesser offense though the facts proved at trial would support a conviction for a greater offense. These same considerations apply to the situation now before us. The facts proved at trial were sufficient to sustain a conviction of premeditated murder against both defendants. That the jury may have extended to Gombos a measure of mercy it chose to withhold from Eaton, the instigator and ultimate beneficiary of the escape plot, does not render Eaton’s conviction invalid or legally inconsistent. Thus, in finding this case controlled by Potts we reaffirm our earlier disapproval of Turner.

Second, Gombos and Eaton challenge the trial court’s refusal to give a requested jury instruction and instead giving an instruction which they contend failed to meet the standards set forth in Boyd v. State. “[T]he instructions should contain a definition of conspiracy, an explanation of the legal consequences of proving a conspiracy in the case, and the admonition that it is for the jury to determine whether a conspiracy has been established beyond a reasonable doubt.” 389 So.2d at 647. (footnote omitted). The trial court gave the full standard jury instruction on conspiracy and added a paragraph explaining the legal consequences of a proven conspiracy as to one who enters it late. Petitioners contend that the instruction was fundamentally deficient in that it failed to provide guidelines as to the legal effect of proof of a conspiracy and failed to tell the jury who is to determine that a conspiracy existed. To answer the second point first: The charge, delivered to the jury, set forth elements which had to be proved beyond a reasonable doubt. The only possible inference to be drawn from the instruction is that the issue is one for jury determination.

As to petitioners’ first point, the standard jury instruction would be fatally deficient if it did not address the legal effect of proof of conspiracy. Petitioners do not challenge the adequacy per se of the standard jury instructions. The “legal effect” petitioners complain of is the admission into evidence of co-conspirators’ out-of-court statements which would otherwise have been barred by the hearsay rule. This issue was raised far too late in the trial to have any protective effect on defendants’ behalf. Florida’s Evidence Code provides an exception to the hearsay rule for statements made by co-conspirators, in furtherance of the conspiracy during the existence of the. conspiracy. § 90.803(18)(e), Fla.Stat. (1979). That section further provides: “Upon request of counsel, the court shall instruct the jury that the conspiracy itself and each member’s participation in it must be established by independent evidence, either before the introduction of any evidence or before evidence is admitted under this paragraph.” (Emphasis supplied.) By the time the request for the instruction was made, the evidence had been admitted. No request for this instruction was made prior to its admission nor was any hearsay objection made on the grounds of failure to establish conspiracy by independent evidence. Under the circumstances, we find the instruction given by the judge to be appropriate and adequate and find the defendants were not prejudiced by the court’s rejection of their proposed instruction. Because these facts distinguish this ease from Boyd, we find no conflict requiring resolution and do not need to discuss the merits of that holding.

The third point on appeal is Gom-bos’s challenge of the trial judge’s retention of jurisdiction for one-third of Gombos’s seventy-five year sentence. We agree with the district court that this issue is without merit.

Accordingly, we approve the decision of the district court.

It is so ordered.

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

      . The district court in Boyd held a bare definition of conspiracy to be an inadequate instruction. It also held that the defendant was not entitled to demand the standard jury instruction on facts similar to those now before us.

      . The judge delivered the following charge:
      Criminal conspiracy. It is a crime for any person to agree, conspire, combine or confederate with another person or persons to commit a crime.
      The essential elements of this offense which must be proved beyond a reasonable doubt before there can be a conviction in this case are that:
      1. The defendants had a fully formed conscious intent that the crimes of murder in the first degree and escape would be committed.
      2. In order to carry out the intent the defendants did enter into an agreement understanding or common plan to cause those crime to be committed either by them, one of them, or by some other person.
      It is not necessary that the agreement, understanding or common plan to commit the crime be expressed in any particular words or that the state prove what words passed between the conspirators. It is sufficient if the words shown to have been used or the acts shown to have been done by the parties, or both or altogether, show beyond a reasonable doubt both elements of the crime of criminal conspiracy.
      When a criminal conspiracy is formed between more than two persons, it is not necessary that each member of the conspiracy be informed of all of the acts or plans of all the others. The crime of criminal conspiracy is complete if one person, having the fully formed conscious intent that a crime be committed, joins with one or more other persons in an agreement the purpose of which is to procure the crime to be committed.
      It is a defense to the charge of criminal conspiracy that, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose, the defendant, after conspiring with one or more persons to commit the offense, did persuade such other persons not to do so, or otherwise prevented commission of the crime.
      The Court further instructs you that a defendant who joins the conspiracy at a later date takes the conspiracy as he found it. When the defendant joins the conspiracy and actively participates in it, he has accepted the previous acts and declarations of his fellow conspirators.


text:
    Louie L. WAINWRIGHT, Petitioner, v. Willie POTTS, Jr., Respondent.
    No. 62284.
    Supreme Court of Florida.
    Sept. 29, 1983.
    Jim Smith, Atty. Gen., and Andrea T. Mohel and James P. McLane, Asst. Attys. Gen., West Palm Beach, for petitioner.
    Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for respondent.
   ADKINS, Justice.

We have for review a decision of the District Court of Appeal, Fourth District, Potts v. Wainwright, 413 So.2d 156 (Fla. 4th DCA 1982), on the issue of petitioner’s right to a belated appeal. This issue was determined in State v. Meyer, 430 So.2d 440 (Fla.1983).

Accordingly, we approve the result of the decision of the district court of appeal.

It is so ordered.

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


text:
    Frederick JORDAN, Petitioner, v. STATE of Florida, Respondent.
    No. 62419.
    Supreme Court of Florida.
    Sept. 29, 1983.

      Jerry Hill, Public Defender and Deborah K. Brueckheimer, Asst. Public Defender, Tenth Judicial Circuit, Clearwater, for petitioner.
    Jim Smith, Atty. Gen. and Michael J. Kotler, Asst. Atty. Gen., Tampa, for respondent.
   EHRLICH, Justice.

Petitioner seeks review of the decision of the Second District Court of Appeal, Jordan v. State, 416 So.2d 1161 (Fla. 2d DCA 1981), on grounds of direct and express conflict with decisions of this Court. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Petitioner was brought to trial on a charge of resisting arrest with violence pursuant to section 843.01, Florida Statutes (1979). At the prosecutor’s request, over defense objection, the jury was instructed on attempted resisting arrest with violence as a lesser-included offense and the jury returned a verdict of guilty of attempted resisting arrest with violence. In fact, section 843.01 makes the attempt a part of the crime. Thus, the crime for which petitioner was convicted does not exist. The trial court, belatedly becoming aware of this, adjudicated petitioner guilty of the lesser-included offense of resisting arrest without violence. The district court set aside the adjudication and remanded for a new trial on the original charge, citing this Court’s decision in Achin v. State, 436 So.2d 30 (Fla.1982), as authority for the proposition that when a defendant has been convicted of a non-existent offense which, in fact includes all the elements of the offense originally charged, double jeopardy does not prevent retrial on the original charge.

Petitioner contends that Achín turns on the “invited error” doctrine, in that Achin’s counsel had requested the defective instruction. In State v. Sykes, 434 So.2d 325 (Fla.1983), we disposed of that contention and reached the same result as Achín. Sykes and Achín control the case at bar, and this district court has reached the result those decisions mandate.

Therefore, the decision of the district court is approved and this cause is remanded for a new trial.

It is so ordered.

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

      . 843.01 Resisting officer with violence to his person. — Whoever knowingly and willfully resists, obstructs, or opposes any sheriff, deputy sheriff, officer of the Florida Highway Patrol, municipal police officer, county or municipal correctional officer, beverage enforcement agent, officer of the Game and Fresh Water Fish Commission, officer of the Department of Natural Resources, member of the Florida Parole and Probation Commission or any administrative aide or supervisor employed by said commission, parole and probation supervisor or parole and probation officer employed by the Department of Corrections, county probation officer, personnel or representative of the Department of Law Enforcement, or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, by offering or doing violence to the person of such officer or legally authorized person, is guilty of a felony of the third degree, punishable as provided in s. 775.-082, s. 775.083, or s. 775.084. (Emphasis supplied.)


author: PER CURIAM. SHAW, Justice,

text:
    STATE of Florida, Petitioner, v. Angela CARR, Respondent.
    No. 62972.
    Supreme Court of Florida.
    Sept. 29, 1983.

      Jim Smith, Atty. Gen. and Joy R. Shearer, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Richard L. Jorandby, Public Defender and Louis G. Carres, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for respondent.
   PER CURIAM.

This is a petition to review Carr v. State, 421 So.2d 1098 (Fla. 4th DCA 1982), on the ground that it conflicts with Puccio v. State, 424 So.2d 85 (Fla. 1st DCA 1982); Sune v. State, 402 So.2d 11 (Fla. 3d DCA 1981); Alexander v. State, 399 So.2d 110 (Fla. 1st DCA 1981); and Hardison v. State, 385 So.2d 738 (Fla. 2d DCA 1980). We agree there is conflict and find jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Respondent Carr was charged in a two-count information with robbery and attempted first-degree murder. The victim was an eighty-three-year-old widow who refused at a discovery deposition to reveal her current address. At a pretrial hearing, on a motion to compel discovery or, alternatively, to exclude the victim’s testimony, the prosecutor advised the court that the victim feared for her life, might not appear if she were compelled to disclose her address, and that he had advised her, and would continue to advise her, not to divulge her current address. There was no evidence introduced or allegations made of any actual threat to the personal safety of the victim. The trial court denied the motion to compel discovery or to exclude testimony and set the case for trial, four days thence. On February 2, 1981, Carr’s counsel announced to the court that denial of the motion to compel discovery prevented the completion of discovery and that his client was entering an open plea of nolo contendere to the robbery charge. Counsel stated that the plea was based on an understanding that the state would nolle pros the attempted first-degree murder count and, further, that Carr reserved the right to appeal the denial of the motion to compel discovery or to exclude testimony. The state responded that it did not agree that the reserved issue was dis-positive of the case. The court then instructed Carr, pursuant to Florida Rule of Criminal Procedure 3.172, on the rights that she surrendered by pleading nolo conten-dere, and she indicated her intent to give up those rights by her plea. Carr’s counsel reiterated that the record should be clear that she reserved the right to appeal the denial of the motion. The court responded, somewhat ambiguously, that it considered the reserved issue to be nondispositive. Thereafter, on March 16, 1981, the court adjudicated Carr guilty and sentenced her to five years’ imprisonment, followed by five years’ probation. Carr appealed the judgment and sentence.

The state moved to dismiss the appeal on the ground that the reserved issue was not dispositive of the case. On June 11, 1982, the district court relinquished jurisdiction of the case to the trial court for a determination of whether the denial of the motion to compel was dispositive of the case. After a hearing, the trial court on July 13, 1982, issued an order ruling that it continued to believe that the reserved issue was not dispositive of the case. The district court then issued the decision now under review.

In dismissing the appeal, the district court apparently based its'decision on the trial court’s conclusion that the issue reserved for appeal was not dispositive of the case but did not itself rule on whether the issue was dispositive. However, in contradiction of its tacit conclusion that the issue was nondispositive and review should not be granted, the district court granted relief by remanding with directions that Carr be allowed thirty days within which to file a motion to withdraw her nolo contendere plea.

A defendant who pleads nolo conten-dere must expressly reserve the right to an appeal. Fla.R.Crim.P. 3.172(c)(iv). Further, a conditional “nolo plea is permissible only when the legal issue to be determined on appeal is dispositive of the case.” Brown v. State, 376 So.2d 382, 384 (Fla.1979). The state urges that Brown placed Carr on notice that an issue reserved for appeal must be dispositive if the right to appeal is to be preserved, that Carr appealed a nondispositive issue, and, therefore, the district court should have dismissed the appeal without granting Carr the right to withdraw the plea. Cases from other district courts are cited in support.

We agree and reiterate our holding in Brown: an issue is preserved for appeal on a nolo plea only if it is dispositive of the case. We granted leave to the petitioner in Brown to withdraw his plea because of possible prejudice in retroactively applying the Brown holding. However, Brown was issued in 1979, well before the events here, and Carr was on notice of the Brown holding. Relief is not appropriate. We approve the district court’s dismissal of the appeal but quash that portion of the order granting Carr leave to file a motion to withdraw her nolo plea.

Quashed in part and remanded with directions to dismiss the appeal without leave to withdraw the plea.

It is so ordered.

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

SHAW, J., concurs specially with an opinion, in which ADKINS, J., concurs.

SHAW, Justice,

specially concurring.

I agree that the failure to reserve a legally dispositive issue for appeal on a nolo contendere plea is fatal to the appeal and that we should dispose of this case on that ground. Nevertheless, because of our constitutional responsibility to prepare rules of court procedure and to supervise the courts of this state, I am constrained to point out that the trial judge erred in denying Carr’s motion to compel discovery of the victim’s address. I appreciate that victims may understandably feel a general fear of recrimination and physical danger, but the rights to confront the accuser and to conduct legitimate discovery are rights going to the very fairness of the criminal trial itself. Accordingly, the privilege to withhold an address is an exceedingly narrow one and all doubts must be resolved in favor of the accused’s right to confront witnesses. See State v. Hassberger, 350 So.2d 1 (Fla.1977), and Evanco v. State, 350 So.2d 780 (Fla. 1st DCA 1977). In this instance, the record does not support the granting of such privilege. There was no evidence or allegation that a specific or actual threat to the personal safety of the victim existed. Further, the victim herself did not appear at the hearing; there was only a representation by the prosecutor that the victim was fearful and might not testify if she were required to divulge her address. Under these circumstances, had a trial occurred, it would have been reversible error to deny the motion to compel discovery or to exclude testimony.

ADKINS, J., concurs.

      . “The Court: I’m indicating that the failure to give that address is irreversible error and you’re welcome to appeal that point. I’m satis-fled its final. Let’s see how harmless they think it is.”

      . Puccio v. State, 424 So.2d 85 (Fla. 1st DCA 1982); Sune v. State, 402 So.2d 11 (Fla. 3d DCA 1981); Alexander v. State, 399 So.2d 110 (Fla. 1st DCA 1980); Hardison v. State, 385 So.2d 738 (Fla. 2d DCA 1980).


author: PER CURIAM.

text:
    STATE of Florida, Petitioner, v. Martha DAVIDSON, Respondent.
    No. 63113.
    Supreme Court of Florida.
    Sept. 29, 1983.
    Jim Smith, Atty. Gen., and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Richard L. Jorandby, Public Defender and Gary Caldwell, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for respondent.
   PER CURIAM.

The Fourth District Court of Appeal in Davidson v. Wainwright, 436 So.2d 134 (Fla. 4th DCA 1983), certified to us as a question of great public importance the same question we subsequently addressed in State v. Meyer, 430 So.2d 440 (Fla.1983). We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution.

For thé reasons fully discussed in Meyer, the result of the district court is approved.

It is so ordered.

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


text:
    THE FLORIDA BAR, Petitioner, v. Lawrence W. FAST, Respondent.
    No. 63566.
    Supreme Court of Florida.
    Sept. 29, 1983.
    Stephen 0. Rushing, Bar Counsel, Tampa, for petitioner.
    Joseph G. Donahey, Jr., Clearwater, 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.

In his petition respondent requested leave to resign without leave to apply for readmission for three years. The Bar’s response asked that the resignation be without leave to apply for readmission or be denied. After we denied the petition, the Bar on motion for reconsideration advised the Court that respondent had entered into a stipulation that the resignation be “without leave to apply for readmission.”

The motion for reconsideration is granted. Having determined that the requirements of Rule 11.08(3) are fully satisfied, we grant the petition for leave to resign without leave to apply for readmission.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Frank T. IMAND, Respondent.
    No. 63908.
    Supreme Court of Florida.
    Sept. 29, 1983.
    Patricia S. Etkin, Bar Counsel, Miami, for complainant.
    Frank T. Imand, in pro. per.
   PER CURIAM.

Frank T. Imand has petitioned this Court for leave to resign from The Florida Bar with the following conditions: (a) no application for readmission for three years following the Court’s acceptance of his resignation; (b) restitution to five former clients aggregating $22,780; (c) payment of $534.87 for Bar investigative costs, to be paid within thirty days of the filing of this opinion; (d) cooperation with any Clients’ Security Fund investigation with reimbursement for any claim paid, including any claim filed during the period of resignation; and (e) no application for reinstatement until all of the foregoing conditions have been fulfilled. The Bar recommends that the petition be granted. Imand has already closed his law practice voluntarily, and we hereby grant his petition to resign with the above-listed conditions, effective immediately.

It is so ordered.

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

         Costs not paid within 30 days will bear interest at 12%, unless time for repayment is extended by the Board of Governors.