author: PER CURIAM. EHRLICH, Justice,

text:
    Ted HERRING, Appellant, v. STATE of Florida, Appellee.
    No. 61994.
    Supreme Court of Florida.
    Feb. 2, 1984.
    Rehearing Denied April 11, 1984.

      James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

The appellant, Ted Herring, was convicted of armed robbery and the first-degree murder of a convenience store clerk. In accordance with the jury’s advisory recommendation, the trial judge imposed the death sentence. We have jurisdiction, and affirm the conviction and sentence of death.

The following are the relevant facts. Shortly after 3:00 a.m. on May 29, 1981, a customer entered a Daytona Beach convenience store and found the store clerk dead. The clerk’s body was lying on the floor behind the cash register counter. The customer and a newspaper distribution man who had arrived at the store called the police. In investigating the crime scene, the police found a note on the counter which read:

This is a hole-up put all the money in a papper bag change to then lay flat on the floor are get shot [sic].

A medical examiner testified that the store clerk suffered three gunshot wounds: (1) a wound to the' left side of the head just forward of the left ear; (2) a wound to the left side of the neck; and (3) a wound to the palm of the left hand with an exit wound on the back side of the hand. The examiner also testified that the wound which caused the clerk’s death was the wound to the head and that the clerk survived for no longer than a minute. It was determined that $23.34 was missing from the cash register.

Approximately two weeks after the robbery-murder, Herring was arrested after he was observed entering and exiting a vehicle which had been stolen in another convenience store robbery. He was taken to the Daytona Beach Police Department, where he was advised of his Miranda rights. Herring signed a written waiver of his Miranda rights and was interrogated by detectives. During the course of the interrogation, he was asked about several armed robberies, including the May 29 convenience store robbery-murder. A judgment of guilty in one of these other armed robberies was entered against appellant on January 8, 1982, Appellant, in his first statement, which was taped, told the detectives that he planned to rob the convenience store and prepared a holdup note which directed the clerk to turn over money or be shot. He claimed that when he proceeded to the counter, a second man came to the counter, pulled a gun, demanded money from the clerk, and then, after he was given the money, told the clerk to lie on the floor. As this occurred, Herring stated, he backed down the aisle of the store seeking cover and, while he was doing so, the other man shot the clerk twice and left the store. He stated he then ran from the store.

One of the investigating officers testified that after making this statement Herring asked to speak to the officer privately; that during this private conversation, Herring admitted that he killed the clerk and that his previous story was untrue. The officer also testified that during this conversation Herring said that he shot the clerk a second time to prevent him from being a witness against him. At trial, Herring denied that this conversation occurred.

Later in the interrogation, Herring made a third statement, which was taped. In this statement Herring confessed that he went to the convenience store with a gun, asked the clerk for cigarettes, and presented the holdup note. According to Herring, the clerk made a movement as if he were going to grab for the gun. Herring admitted that he then shot the clerk once in the head and once again after the clerk fell to the floor.

Herring testified that this third statement was given only because the police were harassing him. He admitted writing the holdup note, however, and one of the fingerprints on the note was identified as the appellant’s.

At the conclusion of the guilt phase of the trial, the jury found appellant guilty of armed robbery and first-degree murder.

In the penalty phase of the trial, the state put into evidence a certified copy of the judgment and sentence for the prior unrelated robbery with a firearm, which judgment was entered on January 8, 1982. The state also presented the testimony of a probation and parole officer who had spoken to Herring in June, 1981, concerning the murder. She testified that Herring denied committing the murder but that he also commented that the man “got what he deserved for trying to play hero” and that the victim’s death meant “one less cracker.”

Appellant’s mother testified on his behalf and stated that she and the appellant’s father were divorced when the appellant was four years of age; that the appellant was treated for psychological problems and was diagnosed as hyperactive with learning disabilities; and that the appellant, who dropped out of school after completing the fifth grade, has an IQ of eighty. The appellant also attempted to present the testimony of three attorneys who had represented persons charged with first-degree murder who received life sentences after pleading guilty. This testimony was rejected by the trial court. The trial court also rejected the proffer of two poems authored by the appellant which were contained in a clinical report written about him. No testimony was proffered concerning the report, nor was the person who prepared the report called to testify.

By an eight-to-four vote the jury recommended the imposition of the death penalty. The trial judge imposed the death penalty, finding four aggravating and two mitigating circumstances. The aggravating circumstances found by the trial judge were: (1) that appellant had previously been convicted of a robbery with a firearm, a felony involving the use or threat of violence to a person; (2) that the murder was committed while appellant was engaged in the commission of a robbery; (3) that the murder was committed for the purpose of avoiding or preventing a lawful arrest; and (4) that the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. In mitigation, the trial judge found (1) that the appellant had a difficult childhood and had learning disabilities, and (2) that he was nineteen years old at the time of the crime.

Guilt Phase

The appellant’s only contention of error with regard to the guilt phase of his trial is that the trial judge erred in excusing one of the prospective jurors for cause. Appellant asserts that he is entitled to a new trial because, in excusing this juror, the trial judge incorrectly applied the test for excusing death-scrupled jurors set out in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). We disagree.

The prospective juror, during the course of the voir dire examination, stated that he was opposed to the imposition of the death penalty under any circumstances, and that although he could possibly change his mind, at the moment he did not know of any circumstance which would cause him to change his mind. The prospective juror’s specific responses to inquiry by the court and counsel were as follows:

THE COURT: Well, you’re sort of straddling a fence and you need to sort of help me out here. There’s nothing wrong or right with your views. It’s just we need to know where you stand; and my question to you again is, would your objections, reservations or doubts about the death penalty interfere with your ability in the first phase to objectively determine guilt or innocence?
MR. CAMERON: No.
THE COURT: All right.
MR. CAMERON: It would not.
THE COURT: Okay. Now, the second question: If the Defendant was proven guilty beyond every reasonable doubt, could you return a verdict of guilty knowing that the death penalty was a possibility?
MR. CAMERON: Right now I think I could not. I might change my mind in the middle of the trial. It’s a possibility.
THE COURT: Okay. You feel that you would refuse to impose the death penalty under any circumstance?
MR. CAMERON: I feel that way now.
THE COURT: Okay.
Counsel, I’m going to open it up to question by the State and the Defense.
Ma’am?
MS. GRAZIANO: Mr. Cameron, just to make sure I understand you correctly, the way you feel right now, there are no circumstances whatsoever that you would be able to recommend the death penalty?
MR. CAMERON: That’s true.
MS. GRAZIANO: I have no further questions.
MR. PEARL: Mr. Cameron, I’m Howard Pearl from the Public Defender’s office. I’d like to put to you a question or give you an example which is admittedly extreme because what we’re asking you about is, are there any circumstances under which you might vote in favor of the death penalty; and, let me give you an extreme example.
Imagine, if you will,- that the Defendant on trial for murder were Adolph Hitler or Idi Amin who caused the coldblooded murder and death of millions of people. If that were true and if either one of these people were found guilty of murder in the first degree, would you consider the death penalty?
MR. CAMERON: I would consider it, but I think I’d find alternatives that I would choose.
MR. PEARL: Well, you cannot choose alternatives except for two, as the Judge has instructed you. There are only two in the event of a conviction of first degree murder. One is life in prison with a minimum of 25 years before parole, and the other is death. There are no other alternatives. There are no social engineering things that you can apply. There’s no way you can change the person involved, in that sense. So, all you can do is choose one of those two alternatives as a juror, and you have said that you would follow the law.
MR. CAMERON: Uh-huh.
MR. PEARL: And, therefore, I ask you under such an extreme circumstance where the person that you had on trial who was convicted of first degree murder was a person of the caliber I have named, could you then, knowing your alternatives and not being able to choose others, vote for the death penalty?
MR. CAMERON: Under emotional influence I might.
MR. PEARL: Once again, I have to clear this up for you.
Serving on a jury is not supposed to be an emotional experience. You’re supposed to bring to it your common sense, your logic, your everyday business sense; and you’re supposed to leave emotion aside.
MR. CAMERON: If I was able to talk and think logically, I probably would not. I’m sure I would not.
MR. PEARL: Well, could you?
MR. CAMERON: I mean, I’m sure I would not recommend the death penalty.
MR. PEARL: Well, you would be amongst eleven other jurors. You would be one of twelve.
MR. CAMERON: Yes'.
MR. PEARL: On the one hand, would you exercise independent judgment in your thinking?
MR. CAMERON: Yes.
MR. PEARL: And, on the other, would you listen to the views and respect the views of your fellow jurors in arriving at your verdict and discuss the case?
MR. CAMERON: I would listen, yes.
MR. PEARL: Would you be receptive to logical argument with respect to the death penalty if you were to hear such logical argument and respond to it and perhaps be able to then vote in favor of it if you felt that the argument was compelling?
MR. CAMERON: I would listen to it. I would not anticipate that I would change my mind.
MR. PEARL: Well, then I think — correct me if I’m wrong — I think what you have said is, although you’re opposed to it and although you’re thinking now is that you would not vote for the death penalty, that, on the other hand, there are or may be circumstances under which you would, although you do not know what those circumstances might be at the present time?
MR. CAMERON: It’s a possibility I could change my mind. That’s true.
MR. PEARL: Thank you, sir.
THE COURT: All right, Counsel. Is there a motion?
MS. GRAZIANO: The State moves that Mr. Cameron be stricken for cause.
MR. PEARL: I oppose it, Your Honor. I believe that Mr. Cameron could — is qualified to consider the death penalty and to make a decision at the proper time.

(Emphasis added.)

As noted, at the beginning of the inquiry the prospective juror stated that, with his present feelings, if he knew the death penalty was a possibility he would have difficulty rendering a verdict of guilty. The juror unequivocally stated that he knew of no circumstance whatsoever in which he would be able to recommend the death penalty. When pressed by appellant’s counsel concerning the alternatives of either a life or death sentence, and given the examples of Adolph Hitler and Idi Amin, the prospective juror responded that he might recommend the imposition of the death penalty “under emotional influence.” When reminded by counsel for the appellant that he must “leave emotion aside,” the prospective juror stated, “I’m sure I would not recommend the death penalty.”

In footnote 21 of Witherspoon, .the United States Supreme Court set forth a test for determining when the state may excuse a prospective juror for cause in a death penalty case. Witherspoon requires a trial court to determine whether or not a prospective juror is “irrevocably committed ... to vote against the penalty of death regardless of the facts and circumstances....” 391 U.S. at 522 n. 21, 88 S.Ct. at 1777. The United States Supreme Court reaffirmed this principle in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), where it concluded that a prospective juror may be excused for cause when his answers reveal a view toward capital punishment which would “substantially impair the performance of his duties as a juror” in the penalty phase of the trial. Id. at 45, 100 S.Ct. at 2526.

This Court is familiar with the Eleventh Circuit Court of Appeals’ recent interpretation of Witherspoon and Adams in Witt v. Wainwright, 714 F.2d 1069 (11th Cir.1983), which held that Witherspoon and Adams did not allow a juror to be excused for cause where the juror responded that she did not “think” that she could put aside her feelings and be an impartial juror where the death penalty was involved. Without accepting the Eleventh Circuit’s construction of Witherspoon and Adams, we find that in the instant case the prospective juror did more than “think” that his views would interfere with the performance of his duty as a juror. We conclude that the prospective juror in the instant case was properly discharged for cause because the record clearly reflects that, at the time of the inquiry, the juror’s views would “substantially impair the performance of his duties as a juror,” Adams, in the penalty phase of the trial and would also affect him in making a decision in the guilt phase of the trial.

It would make a mockery of the jury selection process to rule otherwise for it would allow persons with fixed opinions to sit on juries. To permit a person to sit as a juror after he has honestly advised the court that he does not believe he can set aside his opinion is unfair to the other jurors who are willing to maintain open minds and make their decision based solely upon the testimony, the evidence, and the law presented to them.

Although appellant has raised no other issues with respect to the guilt phase of his trial, we have reviewed the record in this case and find that there is substantia] competent evidence to support the appellant’s conviction. From our examination of the record, we find no reversible errors in the guilt phase of appellant’s trial.

Sentencing Phase

Herring' contends that his sentence should be vacated and a new sentencing trial granted because (1) the trial court refused to allow testimony by attorneys who represented other murder defendants in similar cases who were able to obtain life sentences; (2) the trial court improperly excluded two poems written by appellant which were offered in mitigation; (3) the trial court erred in finding as an aggravating circumstance that the murder was committed for the purpose of avoiding or preventing a lawful arrest; (4) the trial court erred in finding the aggravating circumstance that the murder was committed in a cold, calculated, and premeditated manner; (5) the trial court improperly used the aggravating circumstance that the murder was committed during the commission of a felony when that felony formed the underlying basis for the felony-murder conviction; and (6) Florida’s capital sentencing statute is unconstitutional on its face and as applied in this case.

Appellant’s points five and six merit no discussion. Both points have been considered and rejected by this Court in prior cases. See Menendez v. State, 419 So.2d 312 (Fla.1982); Antone v. State, 382 So.2d 1205 (Fla.), cert. denied, 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980).

As to his first contention, appellant argues that under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the trial judge should have allowed defense counsel for other first-degree murder defendants to testify that their clients received life sentences for similar crimes. The testimony sought to be presented reflects that these defendants were able to plead guilty and receive a life or lesser sentence. We have previously held that evidence concerning sentences imposed upon codefendants must be. admitted in the penalty phase in order to allow the jury to know all the facts and circumstances surrounding an offense and its participants. See Downs v. State, 386 So.2d 788 (Fla.), cert. denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed.2d 238 (1980); Salvatore v. State, 366 So.2d 745 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979); Smith v. State, 365 So.2d 704 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979); Messer v. State, 330 So.2d 137 (Fla.1976), cert. denied, 456 U.S. 984, 102 S.Ct. 2259, 72 L.Ed.2d 863 (1982). These cases do not hold, however, that the circumstances and sentences in other death penalty cases must be admitted in the sentencing phase of the trial. Evaluating the sentences of other defendants in unrelated crimes involves a number of variables. There is no requirement in Lockett for the admission of such evidence in the sentencing phase. What Lockett does require is the admission of evidence that establishes facts relevant to the defendant’s character, his prior record, and the circumstances of the offense in issue. 438 U.S. at 604-605 n. 12. The jury’s responsibility in the process is to make recommendations based on the circumstances of the offense and the character and background of the defendant. The trial court, in determining the sentence to impose, must use its judicial experience in evaluating and weighing the aggravating and mitigating circumstances with the recommendation of the jury. The use of sentences imposed on other defendants relates to the proportionality of the sentence and is an appropriate element to be considered by the trial judge in imposing sentence upon the defendant, but is not a matter for the jury. This Court also has the responsibility to determine whether the sentence is proportionate with other death penalty cases. In the instant case the trial judge correctly excluded from the jury the proffered testimony concerning sentences imposed in unrelated capital cases.

Appellant’s second claim is that the trial judge improperly excluded certain poems written by the appellant which were offered as mitigating evidence. These poems were contained in a clinical report about the appellant. The record reflects that appellant’s counsel attempted to read the poems into evidence without identifying the report or offering it into evidence or calling the person who wrote it to testify. Under these circumstances, we find that the trial judge correctly excluded these poems from evidence.

Appellant’s third point is that the trial court erred in finding the aggravating circumstance that the murder was committed for the purpose of avoiding or preventing a lawful arrest. The evidence in the record is uncontroverted that the appellant shot the clerk while he was standing behind the counter and shot him again after he had fallen to the floor. There was also testimony from a detective that appellant stated that he “shot a second time to prevent him [the clerk] from being a witness against ■ him.” This evidence is, in our view, sufficient to establish the appellant’s intent to kill the store clerk in order to eliminate him as a witness.

Appellant’s fourth point is that the trial judge improperly found the aggravating circumstance that this murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. We have previously stated that this aggravating circumstance is not to be utilized in every premeditated murder prosecution. Rather, this aggravating circumstance applies in those murders which are characterized as execution or contract murders or witness-elimination murders. We have also held, however, that this description is not intended to be all inclusive. See Menendez; McCray v. State, 416 So.2d 804 (Fla.1982); Combs v. State, 403 So.2d 418 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 862 (1982). In the instant ease, the evidence does reflect that appellant first shot the store clerk in response to what appellant believed was a threatening movement by the clerk and then shot him a second time after the clerk had fallen to the floor. The facts of this case are sufficient to show the heightened premeditation required for the application of this aggravating circumstance as it has been defined in McCray; Jent v. State, 408 So.2d 1024 (Fla.1981), cert. denied, 457 U.S. 1111, 1102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982); and Combs.

The trial court did find, as mitigating circumstances in this case, that the appellant had a difficult childhood, had learning disabilities, and that he was nineteen years of age at the time of this offense. It is within the province of the trial court to decide the weight to be given particular mitigating circumstances and whether they offset the established aggravating circumstances. As we have repeatedly stated since the initial principles for reviewing death sentences were laid down in State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974), Florida’s death penalty statute does not comprehend the mere tabulation of aggravating and mitigating circumstances to arrive at a specific result. The aggravating and mitigating circumstances must be weighed by the trial judge in imposing the appropriate sentence. This Court must then review that sentence and consider the circumstances in the light of other decisions determining whether the death penalty is appropriate. See Menen-dez. We conclude that the established aggravating circumstances outweigh the mitigating circumstances. We have affirmed the imposition of the death sentence in cases involving similar robbery-murders where the defendants were of a youthful age and lacked prior significant criminal activity. See Hargrave v. State, 366 So.2d 1 (Fla.1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979), and Meeks v. State, 339 So.2d 186 (Fla.1976), cert. denied, 439 U.S. 991, 99 S.Ct. 592, 58 L.Ed.2d 666 (1978). The mitigating circumstance of no prior significant criminal activity is not present in this case; in fact, appellant had been previously convicted of an armed robbery. From our review, the imposition of the death penalty is proportionately correct.

For the reasons expressed, we affirm appellant’s conviction and the imposition of the death sentence.

It is so ordered.

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

EHRLICH, J., concurs in part and dissents in part with an opinion.

EHRLICH, Justice,

concurring in part and dissenting in part.

I concur in both the conviction and the sentence. I do not, however, agree that the record supports a finding of heightened premeditation sufficient to characterize the murder as cold, calculated and premeditated. The majority relies on the second shot, fired after the clerk was on the floor, as evidence of the heightened premeditation. But the record clearly shows the shot was fired within the same time-frame as the first. While I agree that more than enough time elapsed to allow for premeditation, I cannot agree that appellant had sufficient time for cold calculation. We have, since McCray and Combs, gradually eroded the very significant distinction between simple premeditation and the heightened premeditation contemplated in section 921.145(5)(i), Florida Statutes (1981). Loss of that distinction would bring into question the constitutionality of that aggravating factor and, perhaps, the constitutionality, as applied, of Florida’s death penalty statute.

      . Art. V, § 3(b)(1), Fla. Const.

      . Footnote 21 reads as follows:
      21. Just as veniremen cannot be excluded for cause on the ground that they hold such views, so too they cannot be excluded for cause simply because they indicate that there are some kinds of cases in which they would refuse to recommend capital punishment. And a prospective juror cannot be expected to say in advance of trial whether he would in fact vote for the extreme penalty in the case before him. The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. If the voir dire testimony in a given case indicates that veniremen were excluded on any broader basis than this, the death sentence cannot be carried out even if applicable statutory or case law in the relevant jurisdiction would appear to support only a narrower ground of exclusion. See nn. 5 and 9, supra.

      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. Nor does the decision in this case affect the validity of any sentence other than one of death. Nor, finally, does today’s holding render invalid the conviction, as opposed to the sentence, in this or any other case.
      391 U.S. at 522-23, 88 S.Ct. at 1777.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. David C. MARTELL, Respondent.
    No. 62815.
    Supreme Court of Florida.
    Feb. 2, 1984.
    Rehearing Denied April 4, 1984.
    John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel, Tallahassee, and Jacquelyn Plasner Needel-man, Bar Counsel, Fort Lauderdale, for complainant.
    Robert J. O’Toole, Fort Lauderdale, for respondent.
   PER CURIAM.

This disciplinary proceeding against David C. Martell is before us on complaint of The Florida Bar and report of the referee. No review is sought by either The Florida Bar or the respondent. We have jurisdiction pursuant to article V, section 15, Florida Constitution.

Respondent is currently under a temporary suspension from the practice of law which we ordered September 20, 1982.'

The complaint alleged that respondent, on or about November 9, 1981, loaned $10,-000 to Mr. Igor Mestchersky. Repayment in the amount of approximately $50,000 was to be made within six weeks. A loan agreement was presented by respondent to Mr. Mestchersky and was signed by both parties. Mr. Mestchersky encountered financial difficulties and was unable to repay respondent.

Approximately three and one-half months after the signing of the loan agreement respondent sent one John Mark Davis to Mr. Mestchersky’s home. Mr. Davis advised Mr. Mestchersky that he would be hurt if he did not come up with the money owed. The respondent made numerous telephone calls to Mr. Mestchersky’s home threatening physical injury to Mr. Mestch-ersky and his family if the monies owed to respondent were not paid.

On or about June 2, 1982, respondent knowingly and unlawfully hired and solicited Detective Robert Shemeth, acting undercover, to cause physical injury to Mr. Mestchersky and Mr. Mestchersky’s dog to collect the money owed to respondent, and to threaten Mr. Mestchersky that further injury would be caused if the monies owed were not repaid. Respondent agreed to pay Detective Shemeth $1,000 plus expenses for his services in injuring and threatening Mr. Mestchersky and his dog.

On June 4, 1982, Detective Shemeth called respondent at his law office and advised him that the matter was completed and a meeting was scheduled for the evening of June 4, 1982. At this meeting Detective Shemeth advised the respondent that he had caused physical harm to Mr. Mestchersky and his dog, and that Mr. Mestchersky then went to the bank and returned with $10,000 which he gave to Detective Shemeth for respondent. Detective Shemeth gave respondent the $10,000 and respondent paid Detective Shemeth $1,000 for his services and $200 for expenses. Respondent advised Detective Shemeth that he planned to use him in the future for additional jobs to cause injury to others.

The referee found respondent guilty of violating Florida Bar Integration Rule, article XI, Rule 11.02(3)(b) and Florida Bar Code of Professional Responsibility, Disciplinary Rule 1-102(A)(6) in that he attempted to engage in conduct prohibited by section 777.04(2), Florida Statutes (1981), and recommended that respondent be suspended from the practice of law in the State of Florida for a period of three years and thereafter until he proves his fitness to be reinstated.

We agree with the referee’s findings and adopt his recommendation. David C. Mar-tell is suspended from the practice of law for a period of three years from September 20, 1982, the date of his previously ordered temporary suspension. At the end of his suspension respondent will be reinstated upon approval by The Florida Bar. Costs of these proceedings in the amount of $1,642.80 are assessed against respondent.

It is so ordered.

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


text:
    Leslie R. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 62848.
    Supreme Court of Florida.
    Feb. 2, 1984.
    Rehearing Denied April 4, 1984.

      John B. Carr, Pensacola and Terry D. Terrell, Chief Asst. Public Defender, Pensacola, for appellant.
    Jim Smith, Atty. Gen. and David P. Gaul-din, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   PER CURIAM.

Leslie R. Jones, who is under a sentence of death, appeals the trial court’s denial of his motion for relief under Florida Rule of Criminal Procedure 3.850 and the denial of his motion to disqualify the trial judge from hearing the rule 3.850 motion. This Court has jurisdiction. Art. V, § 3(b)(1), Fla. Const.

This is the third occasion this cause has been before this Court. Jones’ initial conviction and sentence of death were reversed and remanded for a new trial because the trial court refused to allow the defendant to assert a mental competency defense. Jones v. State, 362 So.2d 1334 (Fla.1978). In the second trial, Jones was again convicted and sentenced to death. This Court affirmed in Jones v. State, 411 So.2d 165 (Fla.1982), and the United States Supreme Court denied certiorari, Jones v. Florida, — U.S. -, 103 S.Ct. 189, 74 L.Ed.2d 153 (1982).

The facts of this incident are set out in detail in our decision-reported at 411 So.2d 165. Briefly, the record reflects that the appellant and an accomplice entered a liquor store to commit a robbery. The two clerks were ordered to lie face down on the floor and were then shot execution-style. One clerk was killed. Surprigingly, one clerk survived although struck by two bullets, one in the chest and one in the head. She testified that the shots came from where the appellant was standing. Three bullets were recovered and one was conclusively identified as having come from a gun found in the residence where the appellant had been staying. Appellant’s accomplice testified that appellant told him he shot the victims because they had recognized him. In addition, a tape-recorded confession of the appellant admitting the shooting was introduced into evidence by the state. At trial the appellant testified in his own behalf and denied the shooting but admitted committing the robbery. Appellant had previously been convicted of robbery and was on parole at the time of the incident.

In these proceedings, the appellant first moved to disqualify the trial judge from hearing the rule 3.850 motion. The grounds asserted were (1) that the trial judge had awarded defense counsel in appellant’s second trial substantially more compensation than he had awarded defense counsel for the first trial and (2) that, immediately following the sentencing of the appellant, the trial judge made a comment that the evidence against the appellant was “almost overwhelming” and that trial counsel “did a remarkable job ... the best you possibly could.” The trial court denied the motion for disqualification. We affirm. In so holding, we recognize that we must accept the allegations for disqualification in the light most favorable to appellant. There is no question that counsel appointed for appellant’s second trial received substantially greater compensation than did counsel for the first trial. At the hearing on the motion, appellant’s counsel recognized that the statute in effect at the time of the first trial limited the amount the trial judge could award to counsel appointed to represent a defendant in a capital case. The trial judge, after the first trial, had awarded the maximum allowed by the statute. The statute was changed prior to the second trial and the trial judge was not so limited in determining attorney compensation. This circumstance has no bearing whatever on the trial judge’s qualification to hear the instant rule 3.850 motion.

With regard to the comments made by the trial judge subsequent to the sentencing of the appellant, we find that this type of expression by a presiding judge is not that unusual and we do not find that the comments were such as would disqualify him from hearing subsequent matters in this cause. In our view, the evidence in this case was, in fact, overwhelming. To disqualify a judge for the remarks made in this instance would, in effect, mandate the disqualification of all judges from the hearing of all ineffective-assistance-of-counsel claims whenever they said anything favorable about counsel in their conduct of a court proceeding. Disqualification in this case would have the practical effect of advising judges to no longer comment in any respect about counsel’s conduct in a criminal case. On occasion this Court has commended counsel on their argument and presentation of issues for resolution, but that does not disqualify this Court from addressing ineffective-assistance-of-eounsel claims directed to specific acts or omissions. We conclude that the comments in the instant case did not rise to the level of prejudice such that the trial judge could not impartially address the specific issues of ineffective assistance of counsel. We realize that the prejudice of a judge is a delicate question and that justice should be administered without fear of prejudice or partiality. We recognize that the law requires that a defendant need only show that he “has a well grounded fear that he will not receive a fair trial at the hands of the judge.” State ex rel. Brown v. Dewell, 131 Fla. 566, 573, 179 So. 695, 697 (1938). In this circumstance, however, we find the facts supporting the suggestion are not reasonably sufficient to create such a fear and, therefore, the motion was properly denied as insufficient. Under the circumstances of this case, our recent decision in Livingston v. State, 441 So.2d 1083 (Fla.1983), is not controlling.

Appellant’s motion for postconviction relief raises fourteen claims; all except the claim of ineffective assistance of counsel are claims that were raised or could have been raised in the appeal on the merits.

We have repeatedly stated that a motion under rule 3.850 cannot be utilized for a second appeal to consider issues that either were raised in the initial appeal or could have been raised in that appeal. Demps v. State, 416 So.2d 808 (Fla.1982); Christopher v. State, 416 So.2d 450 (Fla.1982); Foster v. State, 400 So.2d 1 (Fla.1981); Sullivan v. State, 372 So.2d 938 (Fla.1979); Spenkelink v. State, 350 So.2d 85 (Fla.), cert. denied, 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977). In this cause, thirteen claims made under this motion fall under this category. The only claim that merits discussion concerns the contention that defense counsel in the second trial was ineffective. Although the trial judge denied an evidentiary hearing, he addressed each claim of ineffective assistance of counsel in the hearing on the motion. We treat appellant’s allegations on this issue as true except to the extent that they are conclusively rebutted by the record in this cause. We find that none of the asserted specific omissions or overt acts were measurably below that of competent counsel. Many of the alleged defects relate to trial tactics and judgment. In applying the standard of Knight v. State, 394 So.2d 997 (Fla.1981), we conclude that none of the alleged deficiencies were “substantial enough to demonstrate a prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome” of the case. Id. at 1001.

Although we find that the trial judge did not commit reversible error in failing to have an evidentiary hearing on this ineffective-assistance-of-counsel claim, we would encourage trial judges to conduct evidentiary hearings when faced with this type of proceeding in view of the relatively recent decision of the United States Supreme Court in Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). It is important for the trial courts of this state to recognize that, if they hold an evidentiary hearing on this type of issue, under the Sumner decision their finding of fact has a presumption of correctness in the United States district courts. Justice Rehnquist, in writing for the majority in Sumner, emphasized the effect of section 2254(d) of 28 U.S.C. This federal statute provides:

(d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit—
(1) that the merits of the factual dispute were not resolved in the State court hearing;
(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
(3) that the material facts were not adequately developed at the State court hearing;
(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;
(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;
(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or
(7) that the applicant was otherwise denied due process of law in the State court proceeding;
(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on'a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:
And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.
28 U.S.C. § 2254 (1976). The United States Supreme Court stated that the habeas corpus authority granted by Congress to the federal courts “requires deference by federal courts to factual determinations of all state courts.” 449 U.S. at 547, 101 S.Ct. at 769. In reversing, the United States Supreme Court held that the federal court in Sumner “did not apply the ‘presumption of correctness’ which is mandated by the statute to the factual determinations made by ... state courts.” Id. The Court further stated:
Congress, in § 2254(d) intended not only to minimize that inevitable friction but also to establish that the findings made by the state-court system “shall be presumed to be correct” unless one of seven conditions specifically set forth in § 2254(d) was found to exist by the federal habeas court. If none of those seven conditions were found to exist ... “the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.” (Emphasis supplied.)

Id. at 550, 101 S.Ct. at 770. (Footnote omitted.) When a state court does not hold, an evidentiary hearing, the United States district courts believe they are mandated to hold an evidentiary hearing because of the provisions of subparagraphs (2), (3), (6), (7) and (8) of section 2254(d) unless they can find that the petition is totally frivolous. The practical effect of the state court’s denial of an evidentiary hearing on an ineffective-assistance-of-counsel claim is to leave the factual finding on this issue to the federal courts. It is for this reason that we suggest, even when not legally required, that trial courts conduct, in most instances, evidentiary hearings on this type of issue.

For the reasons expressed, we affirm the trial court’s denial of the petitioner’s motion to disqualify the trial judge and affirm the trial court’s order denying the petitioner’s motion for postconviction relief.

It is so ordered.

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


author: ADKINS, Justice.

text:
    GENERAL TELEPHONE CO. OF FLORIDA, et al., Appellants, v. FLORIDA PUBLIC SERVICE COMMISSION, et al., Appellees.
    No. 63091.
    Supreme Court of Florida.
    Feb. 2, 1984.

      James V. Carideo, Lorin H. Albeck, Leslie R. Stein and Michael W. Tye, Tampa, for appellant, General Tel. Co. of Florida.
    Norman H. Horton, Jr., of Mason, Erwin & Horton, Tallahassee, for appellant, United Tel. Co. of Florida.
    William S. Bilenky, Gen. Counsel, Patrick K. Wiggins, Deputy Gen. Counsel, and Jose A. Diez-Arguelles, Associate Gen. Counsel, Tallahassee, for appellee, Florida Public Service Com’n.
    Jack Shreve, Public Counsel, and Kenneth A. Hoffman, Associate Public Counsel, Tallahassee, for appellee, The Citizens of the State of Florida.
   ADKINS, Justice.

This case is before us for review of Public Service Commission (PSC) Order No. 11448, by which the PSC promulgated Florida Administrative Code Rule 25-14.04. We have jurisdiction. Art. V, § 3(b)(2), Fla. Const.

The rule, as an action by an administrative agency, was adopted pursuant to the procedures specified in the Florida Administrative Procedures Act. §§ 120.50-.73, Fla.Stat. (1981). On October 8, 1982, the PSC issued an order proposing rulemaking pursuant to section 120.54(1), Florida Statutes (1981), and notice of the proposed rule-making was subsequently published in the Florida Administrative Weekly. On October 27, 1982, appellants requested a hearing on the proposed rule. On November 3, 1982, a hearing was held pursuant to section 120.54(3), Florida Statutes (1981). Appellants and other interested parties participated in the hearing, where they were able to present evidence, cross-examine witnesses, and were generally able to inform the PSC of their views on the proposed rule. On November 19, 1982, the PSC hearing officer who presided over the section 120.-54(3) hearing announced his recommended version of the rule. The PSC adopted the rule as recommended through Order No. 11448 on December 27, 1982, despite exceptions to the recommended rule having been filed by appellants and other interested parties. On January 17, 1983, appellants filed for review in this Court.

The text of Florida Administrative Code Rule 25-14.04 is as follows:

25-14.04 Effect of Parent Debt on Federal Corporate Income Tax.
In Commission proceedings to establish revenue requirements or address over-earnings, other than those entered into under Rule 25-14.03, F.A.C., the income tax expense of a regulated company shall be adjusted to reflect the income tax expense of the parent debt that may be invested in the equity of the subsidiary where a parent-subsidiary relationship exists and the parties to the relationship join in the filing of a consolidated income tax return.
(1) Where the regulated utility is a subsidiary of a single parent, the income tax effect of the parent’s debt invested in the equity of the subsidiary utility shall reduce the income tax expense of the utility.
(2) Where the regulated utility is a subsidiary of tiered parents, the adjusted income tax effect of the debt of all parents invested in the equity of the subsidiary utility shall reduce the income tax expense of the utility.
(3) The capital structure of the parent used to make the adjustment shall include at least long term debt, , short term debt, common stock, cost free capital and investment tax credits, excluding retained earnings of the subsidiaries. It shall be a rebuttable presumption that a parent’s investment in any subsidiary or in its own operations shall be considered to have been made in the same ratios as exist in the parent’s overall capital structure.
(4)The adjustment shall be made by multiplying the debt ratio of the parent by the debt cost of the parent. This product shall be multiplied by the statutory tax rate applicable to the consolidated entity. This result shall be multiplied by the equity dollars of the subsidiary, excluding its retained earnings. The resulting dollar amount shall be used to adjust the income tax expense of the utility.

Appellants challenge the PSC rulemak-ing on several grounds. First, appellants claim that the record established at the section 120.54(3) hearing shows substantial evidence weighing against adoption of the rule and that, in fact, the record shows no evidence in support of the rule, thus making the PSC’s adoption of the rule an arbitrary decision. Second, appellants claim that the rule is substantively invalid because implementation of the rule prevents a utility from receiving a fair rate of return on investment as provided by section 364.-14, Florida Statutes (1981), and because the rule abridges due process guarantees which require that ratemaking orders be based on competent and substantial evidence of record.

For the reasons stated below, we find that appellants’ challenges are without merit and we uphold the rulemaking in all respects.

In order to evaluate appellants’ challenges regarding the sufficiency of the evidence supporting the rule, we must specify the proper standard for judicial review of the rulemaking in this case. The PSC, as does any other administrative agency, acts in both quasi-legislative and quasi-judicial capacities. This Court has recognized that agency rulemaking pursuant to statutory authorization, such as the PSC rule-making in this case, is a quasi-legislative function. See Daniel v. Florida State Turnpike Authority, 213 So.2d 585, 586 (Fla.1968).

The legislature has provided the PSC with the “power to prescribe fair and reasonable rates and charges ... to be observed by each utility ... and to prescribe all rules and regulations reasonably necessary and appropriate for the administration and enforcement of this chapter.” § 366.-05(1), Fla.Stat. (1981). The rulemaking in this case, as is all PSC rulemaking involving utility rates, is authorized by § 350.-127(2), Fla.Stat. (1981), which provides the PSC the power to “adopt ... rules reasonably necessary to implement any law which it administers.”

Despite the section 120.54(3) hearing where interested parties made statements under oath and were subjected to limited cross-examination, we find that the rulemaking in this case retained its quasi-legislative nature. In this context, we agree with the characterization of a section 120.54(3) hearing set forth by the district court in Balino v. Department of Health and Rehabilitative Services, 362 So.2d 21 (Fla. 1st DCA 1978), cert. denied, 370 So.2d 458 (Fla.1979), where the hearing was described as a quasi-legislative proceeding intended to facilitate the exchange of information between interested parties and not to be restricted to technical rules of evidence. Such a hearing is designed only to allow an agency to inform itself to the fullest extent possible prior to rulemaking, and not to adjudicate any issues or be conducted in the adversarial manner normally associated with judicial or quasi-judicial proceedings.

As a quasi-legislative proceeding, our review of the rulemaking is more limited than would be review of a quasi-judicial proceeding. The standard of review for a quasi-legislative proceeding must differ from that for a quasi-judicial proceeding, as a qualitative, quantitative standard such as competent and substantial evidence is conceptually inapplicable to a proceeding where the record was not compiled in an adjudicatory setting and no factual issues were determined. We adopt as the proper standard of review one set forth by the First District Court of Appeal upon review of similar rulemaking:

Where the empowering provision of a statute states simply than an agency may “make such rules and regulations as may be necessary to carry out the provisions of this Act,” the validity of the regulations promulgated thereunder will be sustained as long as they are reasonably related to the purposes of the enabling legislation, and are not arbitrary or capricious.

Agrico Chemical Co. v. State, Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978), cert. denied, 376 So.2d 74 (Fla.1979); Florida Beverage Corp. v. Wynne, 306 So.2d 200 (Fla. 1st DCA 1975).

We find that the rule adopted by the PSC is neither arbitrary or capricious. The rule represents a valid implementation of a PSC policy choice regarding the treatment of a utility’s income tax expense during ratemaking. Testimony put forth during the section 120.54(3) hearing shows that there is no single correct method of dealing with the income tax expense of a subsidiary-utility joining in the filing of a consolidated return. By choosing this particular method, the PSC is merely acting within the scope of its discretion. It is clear that this Court will not substitute its judgment for that of the PSC on a discretionary decision. Citizens of Florida v. Mayo, 357 So.2d 731 (Fla.1978). This particular policy choice finds ample support in the record, where it is shown that an income tax expense adjustment had been implemented in several past ratemaking cases in basically the same form as the rule now provides. In fact, this Court has instructed the PSC to apply this type of adjustment in a ratemaking case when the facts of the case were found to warrant such an adjustment. See Citizens of Florida v. Hawkins, 356 So.2d 254 (Fla.1978). We therefore find that appellants’ evidentiary challenges to the rulemaking are without merit.

Appellants challenge the rule itself on two substantive grounds, the first being that use of the rule would deny a utility the opportunity to earn a fair rate of return as required by section 364.14, Florida Statutes (1981). Specifically, they claim the adjustment to a utility’s income tax expense figure, said figure having already been calculated from the utility’s revenue and expenses, would result in an improperly low final income tax expense figure. This lower tax expense figure would be included in the total cost of service, from which would be calculated the revenue required to provide the utility a fair rate of return on investment. Since the required revenue would be calculated on an unrealistically low expense figure, a portion of the revenues which would have been considered a return on investment would in reality go towards paying for the actual tax expense. The end result would be that the utility receives an actual rate of return less than that set by the PSC during the ratemaking where the incorrectly lower expense figure was used. Since the rate base on which the rate of return is calculated remains unchanged regardless of the change in income tax expense, appellants therefore argue that the adjustment denies a utility a fair rate of return.

When determining the amount of income tax expense to be allocated to a utility during ratemaking, as with any cost of service expense, the PSC attempts to ascertain a pragmatic figure which reflects the actual cost to the utility of providing service to the ratepayers. As stated by this Court in a footnote to the Hawkins decision when we were faced with a dispute over the proper income tax expense to be charged a utility, “actualities ... are always to be preferred over hypotheticals.” 356 So.2d at 260 n. 18. It must be noted that the PSC is not bound to any pre-deter-mined formula for calculating any cost of service expense, but instead is free to use any method which will enable it to ascertain the actual cost to the utility.

Appellants argue that the proper income tax expense figure to be included in the cost of service of a utility is the amount determined according to the federal tax laws on the basis of the utility as an independent entity filing a separate return. Such a method, they claim, properly matches deductions with the expenses that generated those deductions, and is the method used on all of the utility’s financial statements. To lower the income tax expense figure by attributing to the utility a portion of the interest expense on the parent's debt would result in improper matching of expenses and deductions, since the utility does not include in cost of service any portion of the interest paid on the parent’s debt. In addition, appellants claim that even though they join in the filing of a consolidated return, the individual tax liability of a utility within the consolidation is allocated as if the utility were an independent entity filing a separate return.

Regardless of the accuracy of these claims from an accounting, financial or tax standpoint, a utility participating in the filing of a consolidated return does not remit to the government, nor is it liable for, the amount in taxes which would have been assessed had the utility filed a separate return. In filing a consolidated return, the participating entities combine their respective taxable incomes and losses to produce a figure from which the consolidated tax liability is determined. Once the consolidated liability is determined, each participating entity becomes jointly and severally liable for payment. The tax liability of a participating entity loses any independent significance outside of the consolidated liability. We find that appellants’ arguments for separate entity tax expense treatment are unrealistic since the only tax liability of actual significance, that of the consolidated entity, is a product of the combined gains and losses of all the participating entities and is not discharged in a practical sense by each participating entity paying that proportion of the total liability attributable to its operation as a separate entity.

Although we have stated that it is conceptually inaccurate to speak of the separate tax expense of a subsidiary utility joining in a consolidated return, nevertheless such a figure must be ascertained for ratemaking purposes. We find that the adjustment implemented by the rule in question and the resulting income tax expense attributed to the utility are more representative of the economic realities of a parent-subsidiary consolidated tax liability than is an expense figure calculated as if the subsidiary utility had filed a separate return.

In the normal course of a parent-subsidiary relationship, the parent issues debt in order to acquire capital to support the operations of its subsidiaries. The capital is transferred to the subsidiary in exchange for stock in the subsidiary. As a practical matter, the equity of the subsidiary is thus directly supported by the debt of the parent. The debt of the parent used to support the subsidiary generates interest expense for the parent, which in turn is tax deductible. Although the capital is passed on through to the subsidiary, there is no corresponding pass-through of interest expense because the parent passes on the capital to acquire an ownership interest in the subsidiary as opposed to a creditor's interest. Therefore, the nature of the acquired capital changes from debt to equity at the point the capital passes from parent to subsidiary.

If the parent and subsidiary had chosen to maintain their separate tax identities, the distinction between the capital acquired through debt by the parent and through equity by the subsidiary would have been valid. By filing a consolidated return, however, the entities have removed the separation between parent and subsidiary for tax purposes. No longer is it realistic to treat transactions between parent and subsidiary as transactions between separate entities. Parent and subsidiary are now components of the consolidated entity and the debt issued by the parent component supports the capital structure of the subsidiary component. The pragmatic result is that the consolidated entity has issued debt to support its overall capital structure and the interest paid on the debt goes toward reducing the tax liability of the consolidated entity, therefore benefiting each component member. The adjustment implemented by the rule in question merely allocates to the subsidiary component the interest expense deduction generated by the proportion of the consolidated debt that is used to support the subsidiary component’s capital structure. Similar approaches for determining, in ratemaking, the proper allocation of income tax expense for a utility joining in the filing of a consolidated return have been adopted in at least eighteen jurisdictions, see 1 A. Priest, Principles of Public Utility Regulation 54-56 (1969), and by the Federal Energy Regulatory Commission. See Re Columbia Gulf Transmission Co., Opinion No. 173, 54 PUR4th 31 (1983). We agree with these authorities and find that, in ratemak-ing proceedings where a separate income tax expense figure must be ascertained for a subsidiary utility joining in a consolidated tax return, the adjustment provided by the rule results in an income tax expense figure which realistically reflects the actual costs incurred by the utility. Since the adjusted figure accurately represents the income tax expense, revenue requirements based on that expense figure would not be set incorrectly and the utility therefore is not denied a fair rate of return on investment.

Finally, appellants make a second substantive challenge on the basis that the rule deprives them of due process guarantees which provide them the opportunity to have their income tax expense figures determined on a case-by-case basis by competent and substantial evidence. We have already determined on a general basis that an adjustment to income tax expense which takes into account the interest expenses and corresponding tax deductions generated by the parent’s debt is a proper method of determining a subsidiary-utility’s actual incurred income tax expense when the utility joins in a consolidated filing. Since implementation of the rule does result in a proper income tax expense figure being attributed to the utility for ratemaking purposes, there is no need to have the income tax expense be determined on a ease-by-case basis by competent and substantial evidence. The rule provides for a rebut-table presumption that the parent’s investment in the subsidiary utility was composed of the same debt-equity ratio as the parent’s overall capital structure, and when this presumption bears true the adjustment provided by the rule will result in the correct income tax expense allocation to the utility. When the presumption is rebutted, the utility will be able to have the actual debt-equity ratio of the parent’s investment determined on an individual basis by competent and substantial evidence. Once the ratio is determined, the adjustment will be calculated accordingly and once again the adjusted income tax expense will represent the actual cost incurred by the utility. In addition to the flexibility provided within the rule itself, a utility can seek a variance from the rule pursuant to Florida Administrative Code Rule 25-22.17(4). Also, the utility could, upon a proper showing, convince the PSC to waive or deviate from the rule simply on the basis of an exercise of PSC discretion, and such deviation would be proper as long as adequately explained. See § 120.68(12)(b), Fla.Stat. (1981); E.M. Watkins & Co. v. Board of Regents, 414 So.2d 583, 588 (Fla. 1st DCA 1982), review denied, 421 So.2d 67 (Fla.1982). We find these various safeguards are sufficient to ensure that the utility will have its income tax expense figure properly calculated in all instances, and we therefore dismiss appellants’ due process arguments. We uphold the PSC rulemaking in all respects.

It is so ordered.

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


text:
    THE FLORIDA BAR. In re James Willett WINTERS.
    No. 63311.
    Supreme Court of Florida.
    March 1, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Michael D. Powell, Bar Counsel, Fort Lauderdale, for petitioner.
    Roger B. Colton of Foley, Colton & Duncan, West Palm Beach, for respondent.
   PER CURIAM.

This matter is before the Court on Respondent’s Petition for Leave to Resign Without Leave to Apply for Readmission Permanently, pursuant to article XI, Rule 11.08 of the Integration Rule of The Florida Bar.

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

1. The [Respondent] has previously filed a Petition for Leave to Resign with Leave to Reapply, which was denied by this Honorable Court by Order dated Thursday, June 23, 1983.
2. The [Respondent] filed his Petition for the Court to Reconsider the aforementioned Order, which was again denied by this Honorable Court on Monday, September 26, 1983. ■
3. The previous Petition for Leave to Resign with Leave to Reapply set forth all of the background information concerning the [Respondent].
4. The [Respondent] is presently pending investigation of disciplinary proceedings by a Florida Bar Grievance Committee within the Fifteenth Judicial Circuit, Palm Beach County, Florida, Case No. 15E84F01.
5. The [Respondent] is no longer actively engaged in the practice of law, is not holding any funds in trust, or acting in any fiduciary capacity.
6. The [Respondent] agrees to a waiver of confidentiality regarding this matter.
7. The [Respondent] agrees to cooperate with any Clients Security Fund investigation conducted by The Florida Bar.
8. This Petition is without leave to apply for readmission permanently. [Respondent] believes that the public interest would not be adversely-affected by the granting of this Petition, and that permitting him to resign without leave to apply for readmission permanently will not adversely affect the purity of the courts nor hinder the administration of justice, nor the confidence of the public in the legal profession, and will cause no harm to the public nor the administration of justice.
9. [Respondent] has consulted counsel in this matter, and does hereby freely and voluntarily submit this Petition to Resign Without Leave to Apply for Readmission Permanently.

The Florida Bar having now filed its response supporting the Petition for Leave to Resign Without Leave to Apply for Readmission Permanently and the Court having reviewed the same and determined that the requirements of Rule 11.08(3) are fully satisfied, the Petition for Leave to Resign Without Leave to Apply for Readmission Permanently is hereby approved. Respondent’s name is hereby stricken from the roll of attorneys in the State of Florida effective this date.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Jesse James WOLBERT, Respondent.
    No. 62921.
    Supreme Court of Florida.
    March 1, 1984.
    John F. Harkness, Jr., Executive Director, John T. Berry, Staff Counsel and Dale E. Krout, Jr., Bar Counsel, Tallahassee, for complainant.
    No appearance for respondent.
   PER CURIAM.

This bar disciplinary proceeding is before us on a referee’s report finding Jessie James Wolbert guilty of eight counts of violating the Code of Professional Responsibility. The referee has recommended that Wolbert be disbarred. Wolbert has contested neither the referee’s findings nor his recommendation.

On February 3, 1982 Wolbert informed The Florida Bar that he had been misappropriating trust funds. The next day Wol-bert met with staff members of The Florida Bar and agreed to make arrangements to have his trust accounts audited by an independent auditor, but five days later Wolbert abandoned his practice without giving prior notice to his clients. Thereafter, The Florida Bar filed a complaint against Wolbert in this Court, which we subsequently referred to the referee.

The referee found Wolbert guilty of violating the Integration Rule, article XI, Rule 11.02(4), and Disciplinary Rules 1-102(A)(4) and (6), 2-102(E), 2-110(A)(l), (2) and (3), 6-101(A)(3), and 9-102(A) and (B). The referee concluded that the seriousness of Wol-bert’s misconduct warranted imposition of the severest punishment this Court can administer, disbarment. Based on the facts and the uncontested nature of this ease, we adopt the referee’s report and hereby bar Wolbert from practicing law in Florida, effective with the date of filing of this opinion. He is prohibited from applying for readmission for ten years and when, or if, he so applies, he may not be readmitted before he proves complete restitution of all misappropriated money and property and fulfills the requirements for readmission as prescribed by rule.

Costs in the amount of $1,132.16 are taxed against Wolbert.

It is so ordered.

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


text:
    THE FLORIDA BAR, Petitioner, v. French C. DAVIS, Respondent.
    No. 62920.
    Supreme Court of Florida.
    March 1, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and David G. McGunegle, Bar Counsel, Orlando, for complainant.
    Leon H. Handley, Orlando, for respondent.
   PER CURIAM.

This disciplinary proceeding is before the Court on complaint of The Florida Bar and report of the referee. No petition for review has been filed. We have jurisdiction pursuant to article V, section 15, Florida Constitution.

The Florida Bar filed a complaint against respondent alleging five counts of professional misconduct. In a lucid and meticulous report, the Court-appointed referee recommended that respondent be found not guilty of three of the five counts. As to the other two counts — improper trust accounting procedures in violation of Florida Bar Integration Rule article XI, Rule 11.-02(4)(c) and Florida Bar Code of Professional Responsibility Disciplinary Rules 9-102(A) and 9-102(B)(3) and neglect of a legal matter entrusted to him by a client in violation of Florida Bar Code of Professional Responsibility Disciplinary Rule 6-101(A)(3) — the referee recommended that respondent be found guilty.

The referee further found that the improper trust accounting had been a matter of neglect, not of dishonesty, in that no client’s funds had been misappropriated and that respondent had received a private reprimand for behavior similar to and contemporaneous with these charges. The referee recommended that respondent be suspended from the practice of law for three months for each of the counts on which he was found guilty, suspensions to run concurrently, with automatic reinstatement at the end of that period and that costs of $3,572.06 be assessed against respondent.

As neither party requested review of this recommendation, respondent is hereby suspended from the practice of law, commencing thirty days after the date this decision issues and is assessed costs in the amount of $3,572.06.

It is so ordered.

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

EHRLICH, J., concurs specially with an opinion, in which OVERTON, J., concurs.

EHRLICH, Justice,

specially concurring.

I concur in the majority opinion only because, in the absence of a petition for review, this Court cannot modify the referee’s report and recommendation without requiring additional briefing or oral argument. Fla.Bar Integr.Rule, art. XI, Rule 11.09(3)(f).

In light of the referee’s finding that no client was permanently harmed by respondent’s negligence and that the conduct giving rise to this proceeding was contemporaneous with that which resulted in the earlier private reprimand, I feel a three-month suspension is much too harsh.

OVERTON, J., concurs.


text:
    HIGHLANDS INSURANCE COMPANY, Petitioner, v. Mildred McCUTCHEN, Respondent.
    No. 63268.
    Supreme Court of Florida.
    March 1, 1984.
    Joe N. Unger of the Law Offices of Joe N. Unger, Miami, for petitioner.
    Goldstein Professional Association, and Elizabeth K. Clarke of Daniels & Hicks, Miami, for respondent.
   PER CURIAM.

Approved. U.S. Concrete Pipe Co. v. Bould, 437 So.2d 1061 (Fla.1983). See also Aetna Casualty & Surety Co. v. Wackenhut Corp., 442 So.2d 192 (Fla.1983).

It is so ordered.

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

OVERTON and McDONALD, JJ., dissent.


text:
    Alvin Russell ANDERSON, Petitioner, v. STATE of Florida, Respondent.
    No. 63917.
    Supreme Court of Florida.
    March 1, 1984.
    P. Douglas Brinkmeyer, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

Approved. Harmon v. State, 438 So.2d 369 (Fla.1983).

It is so ordered.

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


author: BOYD, Justice.

text:
    STATE of Florida, Petitioner, v. Martin Wayne LINDSEY and Allen Scott Brasher, Respondents.
    No. 62498.
    Supreme Court of Florida.
    March 8, 1984.
    Jim Smith, Atty. Gen. and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Richard L. Jorandby, Public Defender; and Margaret Good and Cherry Grant, Asst. Public Defenders, Fifteenth Judicial Circuit, West Palm Beach, for respondents.
   BOYD, Justice.

This cause is before the Court on petition for review of the decision of the district court of appeal in Lindsey v. State, 416 So.2d 471 (Fla. 4th DCA 1982). The State of Florida seeks review and we have accepted jurisdiction on the ground of conflict of decisions. Art. V, § 3(b)(3), Fla. Const.

Respondents were charged in a three-' count information with the following offenses: (1) burglary in th® course of which the offenders committed an assault; (2) robbery while carrying a weapon; and (3) false imprisonment. The defendants filed motions to dismiss, which were denied. The evidence showed that the defendants and two other men planned a burglary. One of the men was a police informant, so the police knew about the burglary in advance. The perpetrators entered the targeted residence at night, knowing that it was occupied at the time. They forced their way into a bedroom where one of the residents had sought to hide and avoid a confrontation. They threatened to cut off her finger if necessary to remove her ring. They bound and gagged her. They cut her leg with a knife. They removed money and jewelry from the house. Because the police knew about the crime in advance they were there to meet the robbers when they exited the house to depart. The jury returned verdicts of guilt on all three counts.

On appeal, the district court held that the first count of the information, which charged the crime of burglary with an assault, was deficient in that it did not allege the facts constituting the assault, but merely stated that an assault was committed upon the occupant of the house. The district court ordered that the judgment of conviction on count one be changed from first-degree to second-degree burglary and remanded for resentencing.

The state argues that the district court erred in finding count one of the information defective. We agree. The respondents rely in part on Florida Rule of Criminal Procedure 3.140(d)(1), which provides as follows:

(1) Allegation of Facts; Citation of Law Violated. Each count of an indictment or information upon which the defendant is to be tried shall allege the essential facts constituting the offense charged. In addition, each count shall recite the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged to have violated. Error in or omission of the citation shall not be ground for dismissing the count or for a reversal of a conviction based thereon if the error or omission did not mislead the defendant to his prejudice.

While the rule arguably requires that offenses be charged only through allegations of ultimate facts rather than conclusory statements couched in statutory terms, we decline to hold that the rule fatally invalidates the form of the aggravated burglary charge used here. In State v. Dilworth, 397 So.2d 292 (Fla.1981), we said:

An information must be quashed for vagueness on a motion to dismiss only if it is “so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.”

397 So.2d at 293 (quoting Fla.R.Crim.P. 3.140(o)). We have recently recognized that unless one of the problems referred to in the Dilworth opinion appears, a charging document framed substantially in the language of the statute defining the offense is usually sufficient. State v. Waters, 436 So.2d 66 (Fla.1983); State v. Covington, 392 So.2d 1321 (Fla.1981); Martinez v. State, 368 So.2d 338 (Fla.1978).

In State v. Waters we held that an information charging burglary is not always required to specify the offense which the accused is alleged to have intended to commit. In reaching the decision, we reasoned as follows:

The early cases establishing the requirement of detailed specificity in indictments and informations were decided long before this Court adopted broad reciprocal discovery procedures. Our present discovery rules provide defendants with a much better means for avoiding surprise or embarrassment in the preparation of a defense than just the terms utilized in a charging document. Further, trial courts have the authority to remedy a lack of definiteness by granting a defendant’s motion for a statement of particulars. Fla.R.Crim.P. 3.140(n).

436 So.2d at 69.

The district court stated in its opinion that respondents’ motions for statements of particulars were denied. However, we have found, and respondents concede, that this was not so. Each respondent filed two motions for statement of particulars. The first motions requested the state to detail the specific time and place of the alleged crimes. The state filed answers to both of these motions. The second set of motions requested a description of the specific acts allegedly committed by each of the respondents. Contrary to the district court’s statement that these motions were denied, the record fails to show any action was taken by the trial judge. Moreover, there is nothing in the record to indicate that the respondents followed up on their motions by asking the trial judge to order the state to comply with their requests. Therefore we find that respondents were not denied the opportunity to utilize available procedures to apprise themselves of the specific acts they were alleged to have committed.

Respondents argue that the question is not whether the information was vague, but rather whether it was completely void for failure to allege all the essential elements of the crime charged. We find that the information did allege all the essential elements of first-degree burglary, including the element that an assault was committed during the course of the crime.

We therefore quash the decision of the district court of appeal holding to the contrary.

The district court, while giving respondents the appellate relief discussed above, rejected their other point on appeal in which they argued that their convictions for false imprisonment were reversible error because the acts of confinement were incidental to the commission of the offense of robbery or to the assault element of the aggravated burglary offense. Lindsey v. State, 416 So.2d at 473-74. The respondents now argue that this latter ruling by the district court of appeal was error. We disagree. The offense of false imprisonment was proved by evidence that the intruders confined the victim by tying her up with rope. It was entirely separate from the element of force exerted in committing the robbery and from the element of assault relied upon to aggravate or enhance the offense of burglary. See Faison v. State, 426 So.2d 963 (Fla.1983). Moreover, even if there were elements of factual proof common to two or more of the crimes, it is not clear that this would entitle respondents to the relief they seek since the matter of what statutory crimes were committed by the respondents’ acts is purely one of legislative intent. See 775.021(4), Fla.Stats. (1979); Borges v. State, 415 So.2d 1265 (Fla.1982). We therefore approve the decision of the district court of appeal on this second issue.

The decision of the district court of appeal is quashed in part and approved in part and remanded with directions to reinstate the convictions and sentences for the first-degree felony of burglary.

It is so ordered.

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

       Section 810.02, Florida Statutes (1979), provides:
      (1) “Burglary” means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.
      (2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.-084, if, in the course of committing the offense, the offender:
      (a) Makes an assault upon any person.
      (b) Is armed, or arms himself within such structure, with explosives or a dangerous weapon.
      (3) If the offender does not make an assault or is not armed, or does not arm himself, with a dangerous weapon or explosive as aforesaid during the course of committing the' offense and the structure entered is a dwelling or there is a human being in the structure or conveyance at the time the offender entered or remained in the structure or conveyance, the burglary is a felony of the second degree, punishable as provided in s. 775.082, s. 775.-083, or s. 775.084. Otherwise, burglary is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Count I of the information in this case
      charged that the defendants,
      on the 26th day of July, A.D. 1979, in the County and State aforesaid, did unlawfully enter or remain in a structure, to-wit: a dwelling, located at 2320 Northeast 33rd Street, Lighthouse Point, property of Leroy and Lois Eger, with intent to commit the offense of Robbery therein, and in the course thereof did make an assault upon Lois Eger, contrary to F.S. 810.02(1) and F.S. 810.02(2), and F.S. 812.13(2)(b)[.]


text:
    STATE of Florida, Petitioner, v. Mark L. OLIVERIA, Respondent.
    No. 62497.
    Supreme Court of Florida.
    March 8, 1984.
    Jim Smith, Atty. Gen. and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Richard L. Jorandby, Public Defender and Allen J. DeWeese, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for respondent.
   BOYD, Justice.

We have for review a decision of a district court of appeal, Oliveria v. State, 417 So.2d 1004 (Fla. 4th DCA 1982). The state seeks review on the ground of conflict of decisions. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

The principal issue in this case is whether an information charging burglary during which an assault was committed must allege the specific facts constituting the offense of assault. We have today answered this question in the negative. State v. Lindsey, 446 So.2d 1074 (Fla.1984). On the basis of that decision we hold that the information in this case was sufficient.

A second issue raised by respondent is whether the evidence was sufficient to prove that in the course of. the burglary, respondent committed an assault. This issue was mentioned but not specifically passed upon by the district court of appeal. We find the point to be without merit. The evidence was sufficient to go to the jury.

Accordingly, we quash the decision of the district court and remand with instructions that respondent’s conviction and sentence for the first-degree felony of aggravated burglary be reinstated.

It is so ordered.

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


text:
    J.J. WIGGINS, Petitioner, v. Flora E. WIGGINS, Respondent.
    No. 62535.
    Supreme Court of Florida.
    March 8, 1984.
    John M. Hathaway, Punta Gorda, for petitioner.
    George O. Kluttz, Fort Myers, for respondent.
   BOYD, Justice.

This cause is before the Court on petition for review of the decision below, reported as Wiggins v. Wiggins, 417 So.2d 691 (Fla. 2d DCA 1982). Review is sought on the ground of conflict of decisions. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Petitioner J.J. Wiggins instituted an action for dissolution of marriage. His wife Flora Wiggins filed a response in which she asked for an order of attorney’s fees. Subsequently the husband filed a notice of voluntary dismissal as permitted under Florida Rule of Civil Procedure 1.420(a). After the husband’s dismissal of the action, the wife filed a motion for assessment of costs and attorney’s fees. The trial court granted the motion for costs but held that it was without jurisdiction to consider an order awarding attorney’s fees.

On appeal the district court reversed and held the trial court had jurisdiction to consider the request for an award of attorney’s fees. The district court recognized that past decisions of this Court have indicated that a voluntary dismissal divests the court of jurisdiction to award attorneys fees. See Randle-Eastern Ambulance Service v. Vasta, 360 So.2d 68 (Fla.1978); Campbell v. Maze, 339 So.2d 202 (Fla.1976). In Randle-Eastern this Court said that Florida Rule of Civil Procedure 1.420(d) provides “authority for defendants to recoup their court costs when a voluntary dismissal has been taken. There is no recompense, however, for a defendant’s inconvenience, his attorney’s fees* or the- instability to his daily affairs which are caused by a plaintiffs self-aborted lawsuit.” 360 So.2d at 69 (footnote omitted). The district court’s majority opinion pointed out that the language in Randle-Eastern, to the effect that attorney’s fees cannot be ordered after a voluntary dismissal, was obiter dicta.

Florida Rule of Civil Procedure 1.420(d) provides for the assessment of costs upon the dismissal of an action. The rule does not, however, contemplate the assessment of attorney’s fees. Moreover, the term “costs” is not generally understood as including attorney’s fees. State ex rel. Royal Insurance Co. v. Barrs, 87 Fla. 168, 99 So. 668 (1924). However, when the legislature has specifically defined attorney’s fees as part of the costs, then the assessment of attorney’s fees after a case has been voluntarily dismissed is within the purview of Rule 1.420(d). City of Hallandale v. Chatlos, 236 So.2d 761 (Fla.1970); Gordon v. Warren Heating & Air Conditioning, 340 So.2d 1234 (Fla. 4th DCA 1976). Thus at the time the Randle-Eastern ease was decided, this Court had recognized that a trial court could retain jurisdiction to award attorney’s fees after a voluntary dismissal, at least in cases where attorney’s fees were defined by statute as part of the costs.

This Court’s decision in Campbell v. Maze, 339 So.2d 202, 203 (Fla.1976), was not based on the holding that the voluntary dismissal divested, the court of jurisdiction to award attorney’s fees, but, rather, on the fact that there was no authority whatsoever for an award of attorney’s fees, regardless of the dismissal.

In an action for dissolution of marriage, the trial court is authorized by statute to order one party to pay the other’s attorney’s fees “from time to time, after considering the financial resources of both parties.” § 61.16, Fla.Stat. (1981). We therefore hold that when a dissolution of marriage action is terminated upon the filing of a voluntary dismissal by the petitioner, the court has the authority to enter an order assessing not only costs, but also a reasonable attorney’s fee. See Turnipseed v. Turnipseed, 158 So.2d 808 (Fla. 1st DCA 1963).

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

It is so ordered.

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


text:
    Michael MASELLI, Petitioner, v. STATE of Florida, Respondent.
    No. 63183.
    Supreme Court of Florida.
    March 8, 1984.

      Jerry Hill, Public Defender and John T. Kilcrease, Jr., Asst. Public Defender, Tenth Judicial Circuit, Bartow, for petitioner.
    Jim Smith, Atty. Gen. and Michael J. Kotler, Asst. Atty. Gen., Tampa, for respondent.
   BOYD, Justice.

This case is before us on petition for review of the decision in Maselli v. State, 425 So.2d 176 (Fla. 2d DCA 1983). We granted review of the case on the ground of conflict of decisions. Art. V, § 3(b)(3), Fla. Const.

Petitioner was on probation when he was charged with uttering a forged instrument. He pleaded nolo contendere to the charge and was adjudged guilty. Subsequently, he was charged with violating the terms of his probation, which included the standard condition against any violation of law. On the basis of the conviction for uttering a forged instrument, the trial court revoked petitioner’s probation.

On appeal petitioner argued that the judgment of guilt rendered pursuant to a plea of nolo contendere was not a legally sufficient ground for the revocation of probation. The district court of appeal rejected this argument and affirmed the order of revocation, reasoning as follows:

It is well settled that the conviction of a crime is a sufficient basis for a probation revocation. Franklin v. State, 356 So.2d 1352 (Fla. 2d DCA 1978); Demchak v. State, 351 So.2d 1053 (Fla. 4th DCA 1977); Egantoff v. State, 208 So.2d 843 (Fla. 2d DCA 1968). The fact that the defendant may have pled nolo conten-dere does not detract from the legality of his conviction. Before a judge can accept a plea of nolo contendere, he must satisfy himself that the plea is voluntarily entered and that there is a factual basis for it. Fla.R.Crim.P. 3.172(a). There may be many reasons why a defendant chooses to enter a plea of nolo contendere, but if a judgment of guilt is entered upon the plea we must assume that the conviction is valid unless it has been set aside. We do not suggest that in trying to convince the court not to revoke his probation a defendant should be precluded from asserting his innocence of the charge to which he pled nolo contendere. We hold only that the conviction, standing alone, is sufficient to sustain the court’s decision to revoke probation.

425 So.2d at 176-77. We agree with the reasoning and the holding of the district court.

It should be pointed out that when a probationer is before the court accused of violating probation by committing an unlawful act, the judge may revoke probation upon finding that such unlawful act was committed by the probationer; it is not necessary that there be a conviction of the unlawful act. Russ v. State, 313 So.2d 758 (Fla.), cert. denied, 423 U.S. 924, 96 S.Ct. 267, 46 L.Ed.2d 250 (1975). When there has been a conviction, as the district court said, there is a clearly sufficient basis for the revocation. The judge may rely on the conviction even if it was imposed pursuant to a plea of nolo contendere. A plea of nolo contendere relieves the state of its burden of proving the factual allegations of the indictment or information. Bell v. State, 369 So.2d 932, 934 (Fla.1979); Chesebrough v. State, 255 So.2d 675 (Fla.1971), cert. denied, 406 U.S. 976, 92 S.Ct. 2427, 32 L.Ed.2d 676 (1972). The record of such a conviction speaks for itself. Of course, as the district court indicated, the probationer must be provided an opportunity to be heard on the question of whether he is guilty of the charge to which he pleaded no contest.

A conflicting decision is Donaldson v. State, 407 So.2d 623 (Fla. 5th DCA 1981). There the court held that at a revocation hearing, where the basis for the alleged violation is a conviction entered upon a nolo contendere plea, the court must make inquiry into the circumstances of the nolo contendere plea. If it is found that the accused tendered such plea while maintaining his innocence, there must be further inquiry into whether the probationer in fact committed the offense put forth as the basis for revocation. The court cannot, under Donaldson, ground a revocation order solely on a judgment of conviction entered pursuant to a nolo plea. We find that the Donaldson decision was an erroneous statement of the law and we disapprove it.

We hold that a conviction entered upon a plea of nolo contendere by a probationer is a sufficient lawful basis for revocation of probation. Such a conviction is a sufficient ground for revocation because the court, before rendering judgment of conviction on a plea of nolo contendere, must hold a hearing and be satisfied that the plea is voluntary and that a factual basis exists for accepting it.

The decision of the district court of appeal is approved.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Leonard Lee SHELDON, Respondent.
    No. 63273.
    Supreme Court of Florida.
    March 8, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and John B. Root, Jr., Bar Counsel, Orlando, for complainant.
    Chandler R. Muller of Muller & Kirkcon-nell, Winter Park, for respondent.
   PER CURIAM.

This lawyer-discipline proceeding is before the Court upon the complaint of The Florida Bar and the report of a referee. Neither party seeks review of the referee’s findings and recommendations. We have jurisdiction. Art. V, § 15, Fla. Const.

Because there is no petition for review of the referee’s report, we must accept the referee’s findings of fact as correct. Fla.Bar Integr.R., art. XI, Rule 11.09(3)(f). The referee found that respondent received $3,025 from a client and represented to her that the money would be deposited in a bank account he would open for the estate of the client’s deceased husband. The promised bank account was never opened, nor did respondent keep the client’s money in an identifiable trust account. Respondent returned the money when a demand was made on behalf of the client. Respondent also kept in his possession two checks for insurance proceeds payable to the estate of the client’s deceased husband, failing for a period of over one year to take any action to secure payment of the checks to the client. The referee found that respondent violated the Code of Professional Responsibility, Disciplinary Rule 1-102(A)(4) (deceit or misrepresentation); Disciplinary Rule 9-102(A) and Integration Rule, article XI, Rule 11.02(4) (improper handling of funds held in trust); and Disciplinary Rule 6 — 101(A)(3) (neglect of a legal matter entrusted to him).

On a second count the referee found that respondent, after being unable to locate wills he had previously drawn for the same client and her deceased husband, agreed to prepare a new will for her. Respondent failed to take action to prepare a new will for over eight months, following which he returned the recovered old wills. The referee found that respondent violated Disciplinary Rule 6-101(A)(3), by neglecting a legal matter entrusted to him.

The referee recommended suspension for one year, proof of rehabilitation, and assessment of costs. We approve the recommended disciplinary measures.

Therefore, we hereby suspend respondent Leonard Lee Sheldon from the practice of law for a period of one year and thereafter until he shall have proven his fitness to resume the practice of law. We also assess against him the costs of these proceedings in the amount of $800.77, the payment of such amount in full to be a further condition precedent to reinstatement. Respondent will be allowed thirty days from the date of this order to close out his practice.

It is so ordered.

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


author: BERANEK, Judge. BERANEK, Judge. ANSTEAD, Chief Judge,

text:
    MULLINS LUMBER COMPANY, Appellant/Cross Appellee, v. W.W. LUMBER AND BUILDING SUPPLIES, INC., Appellee/Cross Appellant, v. GUILDWAY BUILDING SYSTEMS, INC., Panelized Building Systems, Inc., and Richard Harvey, Appellees.
    Nos. 82-1809, 82-1927.
    District Court of Appeal of Florida, Fourth District.
    Sept. 28, 1983.
    On Rehearing March 14, 1984.
    Freeman W. Barner, Jr., of Cromwell & Remsen, Riviera Beach, for appellant/cross appellee.
    Robert L. Sader of Tworoger, Sader & Ferrell, P.A., Fort Lauderdale, for ap-pellee/cross appellant, W.W. Lumber and Building Supplies.
   BERANEK, Judge.

Appellant argues that the trial court erred by denying its motion to dissolve a writ of garnishment. We agree based on C & S Plumbing, Inc., v. Live Supply, Inc., 397 So.2d 998 (Fla. 4th DCA 1981).

A final judgment awarding W.W. Lumber $26,823.52 was filed on February 2, 1981. On February 5, 1981, W.W. Lumber filed a motion for writ of garnishment naming Mullins Lumber as garnishee. The writ was issued the same day and served on garnishee one day later. Appellant then filed a motion to dissolve the writ of garnishment as untimely filed and executed, which the trial court denied.

We reverse on the basis of our opinion in C & S Plumbing, Inc., supra, wherein we stated, “The time for serving a motion for new trial or rehearing has not expired; therefore, the writ was issued prematurely.” Accordingly, we reverse and remand for action consistent herewith.

REVERSED AND REMANDED.

ANSTEAD, C.J., and DELL, J., concur.

ON REHEARING

BERANEK, Judge.

Appellant argues that the trial court erred by denying its motion to dissolve a writ of garnishment. We agree based on C & S Plumbing, Inc. v. Live Supply, Inc., 397 So.2d 998 (Fla. 4th DCA 1981).

A stipulated judgment awarding W.W. Lumber $26,823.52 was filed on February 2, 1981. On February 5, 1981, W.W. Lumber filed a motion for writ of garnishment naming Mullins Lumber as garnishee. The writ was issued the same day and served on garnishee one day later. Appellant then filed a motion to dissolve the writ of garnishment as untimely filed and executed, which the trial court denied.

We reverse on the basis of our opinion in C & S Plumbing, Inc., supra, wherein we stated, “The time for serving a motion for new trial or rehearing had not expired; therefore, the writ was issued prematurely.” Accordingly, the writ is dissolved and the cause is remanded for action consistent herewith.

WRIT DISSOLVED AND CAUSE REMANDED.

DELL, J., concurs.

ANSTEAD, C.J., dissents with opinion.

ANSTEAD, Chief Judge,

dissenting:

I would grant the petition for rehearing on the basis that this case is distinguishable from our decision in C & S Plumbing, Inc. v. Live Supply, Inc., 397 So.2d 998 (Fla. 4th DCA 1981). The C & S Plumbing opinion does not state whether the judgment under consideration therein was stipulated, whereas it is undisputed herein that the judgment permitting execution forthwith was stipulated to by all parties.

Florida Rule of Civil Procedure 1.550 provides that no final process on a judgment may issue before the time for moving for a rehearing has expired unless by special order of the court. In view of the stipulated nature of the judgment entered below, the judgment provided that execution should enter “forthwith” instead of being delayed to allow for the filing of a motion for new trial. This word satisfies the intent of rule 1.550 and shows the court’s intent to permit immediate execution. The requirement for a special order of the court should not be interpreted to require another, separate order in light of the stipulation for judgment and the clear evidence of the parties’ and the court’s intent to allow immediate execution. The result in this case gives the garnishee the power to claim that a stipulated judgment is not final even though the judgment debtor could not make such a claim. Harold’s Trucking v. Kelsey, 584 P.2d 1128 (Alaska 1978). In addition, it is apparent that no motion for new trial was ever filed and the time for filing same has long since expired.

Accordingly, I would grant the petition for rehearing, distinguish this case from C & S Plumbing on the basis of the stipulation for judgment present herein, and affirm the decision of the trial court.