source: Caselaw Access Project

license: Public Domain

text:
    THE FLORIDA BAR RE: RULES OF JUDICIAL ADMINISTRATION.
    No. 65282.
    Supreme Court of Florida.
    Jan. 2, 1985.

      Gerald F. Richman, President, The Florida Bar, Miami, Patrick G. Emmanuel, President-elect, The Florida Bar, Pensacola, John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, Stephen A. Rappenecker, Chairman, Gainesville and Paul S. Elliott, Vice Chairman, Tampa, for Rules of Judicial Admin. Committee; and Robert N. Sechen, Chairman, Economic Section, Miami, for petitioner.
    J. Allison DeFoor, II, County Judge, Sixteenth Judicial Circuit, Plantation Key, Interested Individual.
   PER CURIAM.

The Florida Bar Judicial Administration Rules Committee has submitted for our consideration a proposed Rule of Judicial Administration 2.071 which would permit the use of communication equipment in conducting motion hearings, pretrial conferences, and status conferences. We have jurisdiction. Art. V, § 2(a), Fla.Const.

The rule is intended to formally adopt standard procedures for using communication equipment which we are advised is currently being informally used in many courts within the state. Because we saw merit and urgency in the proposal but did not wish to adopt it as an emergency rule without the advice of The Florida Bar and interested individuals, we referred the proposal to the Committee for expeditious consideration. We have since received input from that Committee, from The Florida Bar Board of Governors, from circuit and county judges, and from other interested individuals. There is general agreement that such a rule should be adopted but some disagreement as to the scope and content of the rule. We have carefully considered the various comments and recommendations submitted to us and concluded that we should adopt the appended rule. The following is a brief explanation of the rule as approved by this Court.

Subsection (a) provides by definition that the equipment must permit full participation by all parties to the proceeding, including the right to raise objections and conduct cross examination.

Subsection (b) provides that communication equipment may be used for motion hearings, pretrial conferences, or status conferences as directed by the court, either on its own motion or on request of a party. The parties must be given notice, as on any motion, and permitted to be heard prior to directing the use of communication equipment. The decision to use or not use communication equipment, except as noted in subsection (c), would be in the sound discretion of the court. There is no requirement that the motion be in writing or that it be submitted in a fixed time period before the proceeding is to be conducted.

Subsection (c) permits the use of communication equipment, with the consent of all the parties, to take the testimony of a witness. Where juvenile or criminal proceedings are involved, the defendant must be informed of the right to confront witnesses and an informed waiver must be obtained. It should be noted that none of the authorized usages involve the presence of a jury, that by definition the communication equipment must permit objections and cross examinations, and that all parties have an absolute right to prohibit the taking of testimony of a witness by communication equipment. The absolute right must be exercised, however, prior to commencement of the proceeding. Once the proceeding begins, the decision to curtail or abort the use of communication equipment will be in the sound discretion of the court.

Subsection (d) provides for the taxing of costs.

The rule will become effective, nunc pro tunc, January 1, 1985, at 12:01 a.m. No rehearing will be allowed.

It is so ordered.

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

RULE OF JUDICIAL ADMINISTRATION 2.071

USE OF COMMUNICATION EQUIPMENT

(a) Definition

Communication equipment means a conference telephone or other electronic device that permits all those appearing or participating to hear and speak to each other, provided that all conversation of all parties is audible to all persons present.

(b) Use

A county, circuit or district court judge may, upon the Court’s own motion or on the request of a party, direct that communication equipment be used for a motion hearing, pretrial conference, or a status conference. A judge must give notice to the parties and consider any objections they may have to the use of communication equipment before directing that communication equipment be used. The decision to use communication equipment over the objection of parties will be in the sound discretion of the trial court, except as noted below.

(c) Testimony

A judge may, with the consent of all the parties, direct that the testimony of a witness be taken through communication equipment. In juvenile and criminal proceedings the defendant must make an informed waiver of any confrontation rights that may be abridged by the use of communication equipment.

(d) Burden of Expense

The cost for the use of the communication equipment is the responsibility of the moving party unless otherwise directed by the Court.


author: ADKINS, Justice.

text:
    Lloyd DUEST, etc., Appellant, v. STATE of Florida, Appellee.
    No. 63678.
    Supreme Court of Florida.
    Jan. 10, 1985.

      R.E. Conner, Plantation, for appellant.
    Jim Smith, Atty. Gen., and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   ADKINS, Justice.

This cause is before the Court on direct appeal from a circuit court judgment adjudicating Lloyd Duest guilty of first-degree murder for which the sentence of death was imposed. This Court has jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the conviction and sentence.

On February 15, 1982, defendant was seen by witnesses carrying a knife in the waistband of his pants. Subsequently, he told a witness that he was going to a gay bar to “roll a fag.” Defendant was later seen at a predominantly gay bar with John Pope, the victim. The two of them then left the bar in Pope’s gold Camaro. Several hours later, Pope’s roommate returned home and found the house unlocked, the lights on, the stereo on loud, and blood on the bed. The sheriff was contacted. Upon arrival, the deputy sheriff found Pope on the bathroom floor in a pool of blood with multiple stab wounds. Defendant was found and arrested on April 18, 1982.

Defendant was tried and found guilty of first-degree murder. In accordance with the jury’s advisory recommendation, the trial judge imposed the death sentence.

Defendant first argues that the trial court erred in allowing two state witnesses to testify over defense counsel’s objections. Defendant claims that the state did not provide defense counsel with the names and other material information concerning two of its rebuttal witnesses until during the trial; therefore, counsel was unable to properly prepare for trial and defendant was prejudiced as a result of the non-disclosure.

The established rule in this state is that if the state fails to disclose the identity of a witness, as mandated by Rule 3.220(a)(l)(i), Florida Rules of Criminal Procedure, then the witness cannot testify unless the court first conducts a hearing to determine whether the omission was willful or inadvertent, whether the omission was trivial or substantial, and whether the omission has prejudiced the defendant’s ability to properly prepare his case. Richardson v. State, 246 So.2d 771, 775 (Fla.1971). See also Haversham v. State, 427 So.2d 400 (Fla. 4th DCA 1983). In the instant case, there was full disclosure as to why both state rebuttal witnesses were not thoroughly identified, including their whereabouts prior to trial. The significance of their testimony was explored as well as the impact on the defendant’s ability to properly prepare for trial. Defense counsel had the opportunity to speak with both witnesses prior to their testimony and conceded at trial that there was no prejudice to the defendant other than the simple fact that the witnesses had not been fully disclosed prior to trial.

Based on the facts contained in the record, we find that the trial judge fully complied with the mandate of Richardson. There was no abuse of discretion in the decision of the trial judge to permit the two state rebuttal witnesses to testify.

Defendant next argues that his sixth amendment rights were abrogated when the prosecutor insulted defense counsel during cross-examination of a state witness. Defendant contends that such comments warranted the granting of his motion for mistrial.

The proper procedure to take when objectionable comments are made is to object and request an instruction from the court that the jury disregard the remarks. Ferguson v. State, 417 So.2d 639 (Fla.1982). No request was made in this case. Moreover, a mistrial is appropriate only when the error committed was so prejudicial as to vitiate the entire trial. Cobb v. State, 376 So.2d 230 (Fla.1979). We believe that the comments of the prosecutor did not so prejudice the defendant. Thus, we find that the trial judge did not abuse his discretion in denying defendant’s motion for mistrial.

Defendant further contends that there was insufficient evidence of premeditated murder to convict him as charged in the indictment. Premeditation, like other factual circumstances, may be established by circumstantial evidence. Adams v. State, 412 So.2d 850 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 182, 74 L.Ed.2d 148 (1982). Such circumstantial evidence must not only be consistent with the defendant’s guilt, but must also be inconsistent with any reasonable hypothesis of innocence. Peek v. State, 395 So.2d 492 (Fla.1980), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981). The record reflects that defendant had stated he gets his money by “rolling gay guys” and that he intended to do the same on the day that the victim was murdered. Defendant was seen with the victim at a gay bar immediately prior to the murder and was seen leaving the bar with the victim in the victim’s car. Shortly thereafter, defendant was seen driving the victim’s car alone. At that time, witnesses saw blood stains on the sleeve of his jogging suit. The victim’s stolen jewelry case was also seen in the car which was being driven by defendant after the murder. Moreover, on the day of the murder, defendant had in his possession a seven-inch knife. The cause of death in this case was multiple stab wounds. We find that there was sufficient circumstantial evidence to sustain defendant’s conviction of premeditated murder.

Defendant also argues that the trial court erred in allowing the introduction of a prejudicial photograph which was irrelevant to any essential issue in the case. The law is well established that admission of photographic evidence is within the trial court’s discretion and that a court’s ruling will not be disturbed on appeal unless there is a showing of clear abuse. Wilson v. State, 436 So.2d 908 (Fla.1983). No such showing has been made in this case. The photograph was relevant and any improper prejudicial impact did not outweigh its probative value. See Adams v. State, 412 So.2d 850 (Fla.1982), cert. denied, 459 U.S. 882, 103 S.Ct. 182, 74 L.Ed.2d 148 (1982).

Finally, defendant objects to the trial court’s findings with respect to the aggravating and mitigating circumstances. The trial court found the following aggravating circumstances: 1) the defendant had been previously convicted of armed robbery and assault with intent to commit murder, section 921.141(5)(b); 2) the capital felony was committed while the defendant was engaged in the commission of a robbery, section 921.141(5)(d); 3) the capital felony was committed for pecuniary gain, section 921.-141(5)(f); 4) the capital felony was espeeially heinous, atrocious, or cruel, section 921.-141(5)(h); 5) the capital felony was a homicide which was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification, section 921.141(5)(i). The trial court considered circumstances 2 and 3 as one circumstance because of overlapping facts and legal definitions. Therefore, four aggravating circumstances were applicable. As to mitigating circumstances, none were applied to this case.

Defendant only challenges two of the aggravating circumstances. He asserts that the murder was not particularly heinous, atrocious or cruel. We disagree with the defendant. The evidence presented at trial shows that the victim received eleven stab wounds, some of which were inflicted in the bedroom and some inflicted in the bathroom. The medical examiner’s testimony revealed that the victim lived some few minutes before dying.

This case is similar to Morgan v. State, 415 So.2d 6 (Fla.1982), where the evidence showed that the death was caused by one or more of ten stab wounds. In that case, this Court approved the finding that the homicide was especially heinous, atrocious, or cruel. Under the totality of the circumstances and applying our previous decisions to the facts of the instant case, we find that trial court properly applied this aggravating circumstance.

Defendant also challenges the finding that the homicide was committed in a cold, calculated, and premeditated manner. In finding that this aggravating circumstance applied, the trial court found:

Evidence adduced at trial indicated that defendant informed witness Demezio some two days prior to the murder that he brings homosexuals back to their apartments, beats them up, and takes their money or jewelry. Defendant on the day of the murder went to his temporary residence with the victim, went into the closet where Demezio kept a dagger and left the residence with John Pope, Jr., the victim. The dagger was later discovered missing, and John Pope, Jr. was later discovered at his home, dead. His car and jewelry box were missing.

We find that the evidence supports the finding that the homicide was committed in a cold, calculated, and premeditated manner.

In the instant case, even if we were to find that one or two of the aggravating circumstances found by the trial judge, was inapplicable, it would still be appropriate to maintain the death penalty. Fleming v. State, 374 So.2d 954 (Fla.1979); Hargrave v. State, 366 So.2d 1 (Fla.1978), cert. denied, 444 U.S. 919, 100 S.Ct. 493, 62 L.Ed.2d 414 (1979).

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

It is so ordered.

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


author: OVERTON, Justice. BOYD, Chief Justice,

text:
    Michael Robert KRONZ, Petitioner, v. STATE of Florida, Respondent.
    No. 64548.
    Supreme Court of Florida.
    Jan. 10, 1985.
    Terry P. Lewis, Sp. Asst. Public Defender, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for respondent.
   OVERTON, Justice.

This is a petition to review a decision of the First District Court of Appeal reported as Kronz v. State, 440 So.2d 49 (Fla. 1st DCA 1983), in which the district court certified direct conflict with Rehfuss v. State, 432 So.2d 639 (Fla. 4th DCA 1983), and Zulla v. State, 404 So.2d 202 (Fla. 2d DCA 1981). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Petitioner was arrested and held in South Carolina on a fugitive warrant for an escape from a Florida jail. He unsuccessfully fought extradition and eventually pleaded guilty to the escape charge. The question presented is whether section 921.-161(1), Florida Statutes (1983), requires a trial judge to give credit for time served in a jail in another state when the defendant’s incarceration is solely for a charged Florida offense. Section 921.161(1) provides as follows:

A sentence of imprisonment shall not begin to run before the date it is imposed, but the court imposing a sentence shall allow a defendant credit for all of the time he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence.

The trial judge, relying on Kurlin v. State, 302 So.2d 147 (Fla. 1st DCA 1974), denied petitioner’s motion to amend his sentence to reflect credit for the time he had served in the South Carolina jail. The district court affirmed, also relying upon its prior decision in Kurlin, in which it held that section 921.161(1) was not “applicable to periods of time incarcerated in other states.” 302 So.2d at 151. In so holding, the district court acknowledged conflict with the decisions in Rehfuss and Zulla, which held that the subject statute required that credit be given for time served in other jurisdictions.

We agree with the conclusion of the First District Court of Appeal in both Kurlin and the instant case, and hold that the term “county jail” is applicable only to Florida jails and, in our view, was not intended by the legislature to apply to various places of incarceration in other jurisdictions. We note that the award of credit for time served in Florida jails prior to sentencing has not always been a matter of right. Prior to 1973, section 921.161 provided that the only credit that must be given was for that time served in a “county jail” between the imposition of sentence and the defendant’s transfer to the state prison system. § 921.161(2), Fla.Stat. (1969). Clearly, the incarceration referred to in that statute could have been only in a Florida county jail. Section 921.161(1), Florida Statutes (1969), also gave the trial judge discretionary authority to award credit for time served in county jails prior to sentencing. This provision was amended in 1973 to mandate that such credit be given. Ch. 73-71, Laws of Fla. Interpreting the term “county jail,” as used in sections 921.161(1) and (2), we conclude that section 921.161(1) requires the trial judge to give credit only for time served in Florida county jails pending disposition of criminal charges. The trial judge does, however, have the inherent discretionary authority to award credit for time served in other jurisdictions while awaiting transfer to Florida. In this latter circumstance, the trial judge should consider the appropriateness of an award of credit for time served when the defendant was incarcerated in another state solely because of the Florida offense for which he or she is being sentenced.

The record does not reflect whether the trial judge understood that he had the discretionary authority to award credit for the time the defendant served in the South Carolina jail. Under the circumstances of this cause, we approve the decision of the First District Court of Appeal but remand this case with directions to remand to the trial judge to consider whether, under his discretionary authority, he should give credit for the time served.

It is so ordered.

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

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

BOYD, Chief Justice,

dissenting.

Persons held in custody pending the trial of criminal charges suffer the same detriment regardless of the geographic location of their place of confinement. I would therefore hold that a Florida defendant held before trial on Florida charges in a jail outside the state is entitled to the same benefit for pre-trial time served as a similarly situated defendant held “in the county jail before sentence” under section 921.-161(1). Rather than directing the trial judge to exercise discretion to grant or deny credit for time served, I would direct that credit be given if a similarly situated prisoner held in custody in Florida before trial would receive it.

It might be suggested that an escaped prisoner who is recaptured need not be given credit at all for time in custody on escape charges where he would have been in jail or prison anyway had he not escaped. However, if an escaped prisoner recaptured in Florida receives credit for time served in Florida pending trial for escape, then a prisoner who manages to get across the state line should receive the same benefit.

I would therefore reject the decision of the court below and adopt the views expressed in the conflicting district court of appeal decisions.


author: OVERTON, Justice. SHAW, Justice,

text:
    Bennie Lee WALKER, Petitioner, v. STATE of Florida, Respondent.
    No. 64747.
    Supreme Court of Florida.
    Jan. 10, 1985.
    Michael E. Allen, Public Defender, and Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen., Gregory G. Costas and Andrew Thomas, Asst. Attys. Gen., Tallahassee, for respondent.
   OVERTON, Justice.

This cause is before us on a petition to review a decision of the First District Court of Appeal reported as Walker v. State, 442 So.2d 977 (Fla. 1st DCA 1983), which directly conflicts with State v. Rhoden, 448 So.2d 1013 (Fla.1984), and Brown v. State, 435 So.2d 940 (Fla. 3d DCA 1983). The issue presented concerns the failure of the trial court to make findings of fact in support of the imposition of an extended sentence as required by the habitual offender statute, section 775.084, Florida Statutes (1981). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and we quash the decision of the district court.

The facts of the instant case are uncon-troverted. Petitioner was convicted of trafficking in stolen property and was sentenced as a habitual offender under section 775.084. On appeal, petitioner alleged that the trial judge did not specifically state, as required by statute, the findings upon which he based his decision to extend petitioner’s sentence. The district court affirmed, finding that petitioner’s failure to raise this objection in the trial court precluded its consideration on direct appeal. The court dismissed the appeal without prejudice to petitioner’s right to raise the issue in a motion for post-conviction relief. 442 So.2d at 978.

In Brown, the Third District Court of Appeal took a contrary view and, in reversing a habitual offender sentence, expressly held that the failure of a “trial court to make the requisite finding that such a sentence is necessary for the protection of the public from further criminal activity by the defendant” could be challenged on appeal notwithstanding the appellant’s failure to preserve the issue. 435 So.2d at 940. The court concluded that such a failure required the remand of the cause so that the trial judge could make the necessary finding, Id. at 941. We agree with this holding and find it to be consistent with our recent decision in Rhoden, in which we dealt with a similar statute, section 39.-111(6), Florida Statutes (1981). That statute places a statutory duty upon the trial judge to make specific findings of fact when sentencing a juvenile offender as an adult. We held that these types of requirements in sentencing statutes were clearly intended to be mandatory. Further, we explained why the contemporaneous objection rule did not apply to bar appellate review of the court’s failure to follow the mandatory sentencing requirements. 448 So.2d at 1016-17.

We hold that the findings required by section 775.084 are critical to the statutory scheme and enable meaningful appellate review of these types of sentencing decisions. Without these findings, the review process would be difficult, if not impossible. It is clear that the legislature intended the trial court to make specific findings of fact when sentencing a defendant as a habitual offender. Given this mandatory statutory duty, the trial court’s failure to make such findings is appealable regardless of whether such failure is objected to at trial. We note that the First District Court of Appeal, in its recent decision in Weston v. State, 452 So.2d 95 (Fla. 1st DCA 1984), recognized that Rhoden mandates a remand for findings of fact when the trial court fails to make such findings in sentencing a defendant under the habitual offender statute.

Accordingly, the decision of the First District is quashed and we remand with directions that the cause be remanded to the trial court for further proceedings consistent with this decision.

It is so ordered.

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

SHAW, J., concurs in result only with an opinion with which ADKINS, J., concurs.

SHAW, Justice,

concurring in result only.

The true issue in this case, as the district court below and the parties before this Court recognized, is whether the sentencing error complained of is fundamental and must be considered on appeal even though no objection was made in the trial court. I agree with petitioner that the error is fundamental and must be considered on appeal. As I read section 775.084, Florida Statutes (1981), the mandatory specific findings of fact are not subject to waiver, they are a condition precedent to the trial court’s authority to sentence to an extended term of imprisonment. In my view, absent the mandatory findings, the sentence imposed is unlawful in that it causes a prisoner to be incarcerated for a period greater than the law permits. Noble v. State, 353 So.2d 819 (Fla.1977); Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981). I concur in result for this reason.

I do not join in the majority opinion because it perpetuates the faulty reasoning upon which State v. Rhoden, 448 So.2d 1013 (Fla.1984), was based. Although I concurred with Rhoden, and still approve the result in that case, on further reflection I fear we misstated the rationale in saying that “[t]he purpose of this contemporaneous objection rule [ensuring that objections are made when the recollections of witnesses are freshest] is not present in the sentencing process because any error can be corrected by a simple remand to the sentencing judge.” Id. at 1016. I note first that this “simple remand” has consumed almost two years, required the attention of two appellate courts, ten appellate judges, an unknown number of appellate lawyers and court personnel, and is now enroute to the original sentencing judge for a review of the record and a resentencing hearing. A contemporaneous objection might well have cured the error, thus resulting in finality of judgment, speedy justice, and efficient use of judicial resources. Contrary to Rhoden

[t]he requirement of a contemporaneous objection is based on practical necessity and basic fairness in the operation of a judicial system. It places the trial judge on notice that error may have been committed, and provides him an opportunity to correct it at an early stage of the proceedings. Delay and an unnecessary use of the appellate process result from a failure to cure early that which must be cured eventually.

Castor v. State, 365 So.2d 701, 705 (Fla.1978). While it is true that retrying a case is more undesirable than resentencing a convicted defendant, the fact is that both are highly undesirable. The loose language employed in Rhoden and the case here will lead to unnecessary and undesirable appellate review of nonfundamental, even harmless, error and to denigration of the trial court process. See the discussion in Wainwright v. Sykes, 433 U.S. 72, 88-90, 97 S.Ct. 2497, 2507-2508, 53 L.Ed.2d 594 (1977) on the importance of the contemporaneous objection rule to trial court proceedings. We should limit Rhoden and the case here to sentencing procedures involving fundamental errors and retain the heretofore well-established rule that the contemporaneous objection rule is applicable to both guilt and penalty phases of a trial, absent fundamental error. Castor, 365 So.2d at 703.

ADKINS, J., concurs.

       Section 775.084, Florida Statutes (1981), reads, in part, as follows:
      775.084 Habitual felony offenders and habitual misdemeanants; extended terms; definitions; procedure; penalties.—
      (1) As used in this act:
      (a) "Habitual felony offender” means a defendant for whom the court may impose an extended term of imprisonment, as provided in this section, if it finds that:
      1. The defendant has:
      a. Previously been convicted of a felony in this state;
      b. Twice previously been convicted of a misdemeanor of the first degree in this state or of another qualified offense for which the defendant was convicted after the defendant’s 18th birthday;
      2. The felony for which the defendant is to be sentenced was committed within 5 years of the date of the conviction of the last prior felony, misdemeanor, or other qualified offense of which he was convicted, or within 5 years of the defendant's release, on parole or otherwise, from a prison sentence or other commitment imposed as a result of a prior conviction for a felony or other qualified offense, whichever is later;
      3. The defendant has not received a pardon for any felony or other qualified offense that is necessary for the operation of this section; and
      4. A conviction of a felony, misdemeanor, or other qualified offense necessary to the operation of this section has not been set aside in any post-conviction proceeding.
      (b) "Habitual misdemeanant” means a defendant for whom the court may impose an extended term of imprisonment, as provided in this section, if it finds that:
      1. The defendant has at least twice previously been convicted of the same crime committed at different times after the defendant’s 18th birthday;
      2. The misdemeanor for which the defendant is to be sentenced was committed within 2 years of the date of the commission of the last prior crime or within 2 years of the defendant’s release, on parole or otherwise, from a prison sentence or other commitment imposed as a result of a prior conviction for a crime, whichever is later;
      3. The defendant has not received a pardon on the ground of innocence for any crime that is necessary for the operation of this section; and
      4. A conviction of a crime necessary to the operation of this section has not been set aside in any post-conviction proceeding.

      (3) In a separate proceeding, the court shall determine if it is necessary for the protection of the public to sentence the defendant to an extended term as provided in subsection (4) and if the defendant is an habitual felony offender or an habitual misdemeanant. The procedure shall be as follows:

      (d) Each of the findings required as the basis for such sentence shall be found to exist by a preponderance of the evidence and shall be appealable to the extent normally applicable to similar findings.


author: ALDERMAN, Justice.

text:
    STATE of Florida, Petitioner, v. Steven SNOW, Respondent.
    No. 64890.
    Supreme Court of Florida.
    Jan. 10, 1985.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for petitioner.
    Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for respondent.
   ALDERMAN, Justice.

We review the decision of the District Court of Appeal, First District, in Snow v. State, 443 So.2d 1074 (Fla. 1st DCA 1984), which expressly and directly conflicts with Pedroso v. State, 420 So.2d 908 (Fla. 2d DCA 1982).

Snow was convicted and sentenced for kidnapping and sexual battery. The trial court retained jurisdiction for one-third of the sentence imposed. On the record, the trial judge stated his justification for retaining jurisdiction was that Snow terrified and terrorized a sixteen-year-old girl. Snow objected generally to the court’s retaining jurisdiction. Snow appealed his sentence on the basis that the trial judge erred in retaining jurisdiction without stating the reasons for doing so with individual particularity as required by section 947.-16(3)(a), Florida Statutes (1981). The district court declined to consider this alleged error because it was not raised in the trial court. It dismissed the appeal without prejudice to Snow’s raising this issue in a Florida Rule of Criminal Procedure 3.850 motion. It cited as authority its recent decision in Walker v. State, 442 So.2d 977 (Fla. 1st DCA 1983).

In Walker, defendant appealed his sentence as an habitual felony offender on the basis that the trial court erred in failing to state the underlying facts and circumstances upon which it relied in finding that an extended sentence was necessary for the protection of the public from further criminal activity by him. The First District dismissed the appeal without prejudice to defendant’s raising this issue in a rule 3.850 motion because defendant had not raised the issue below and thus had not preserved the issue for review by direct appeal.

The state now seeks review here on the basis that the present decision of the First District conflicts with Pedroso v. State, wherein the Second District affirmed the trial court’s summary denial of a rule 3.850 motion where Pedroso attempted to raise the claim that the trial court had failed to state with individual particularity as required by section 947.16(3)(a), Florida Statutes (1979), the reasons for retaining jurisdiction over the first third of his sentence. The district court held that this issue was not cognizable on collateral attack because Pedroso could have raised this issue on direct appeal.

After the state sought review here, the First District decided Weston v. State, 452 So.2d 95 (Fla. 1st DCA 1984), wherein it declined to follow Walker in view of this Court’s intervening decision in State v. Rhoden, 448 So.2d 1013 (Fla.1984), which it felt was controlling and which dictated a contrary result to Walker. On appeal, Weston claimed that the trial court failed to make the requisite findings in connection with his sentence to an extended term under the habitual offender law. The state contended that because Weston’s attorney did not make an objection in the trial court to the court’s failure to make the findings, he was precluded from raising the issue on appeal. The First District acknowledged that the state’s position was consistent with its decision in Walker v. State, but held that our more recent holding in State v. Rhoden was controlling and dictated a contrary result. It reversed the sentence insofar as the extended term imposed under the habitual offender law and remanded for reconsideration of the imposition of the extended term in compliance with section 775.084, Florida Statutes (1981).

The First District then decided Cofield v. State, 453 So.2d 409 (Fla. 1st DCA 1984), wherein defendant contended on appeal that the trial court erred in retaining jurisdiction over one-half of the two consecutive life sentences imposed upon him because any retention over an immeasurable life sentence is improper and because the application of the revised retention statute was an ex post facto violation. The district court declined to reach the merits of defendant’s claims because he had failed to object below. The First District distinguished Rhoden on the basis that it was limited to situations where the trial court, in sentencing a defendant, fails to comply with a mandatory duty imposed upon it by statute.

In State v. Rhoden, we held that the statutory duty placed upon the trial court to make specific findings of fact when sentencing a juvenile offender as an adult was intended to be mandatory. In those situations where the statute places a mandatory duty upon the trial judge to láake specific findings, we held the contemporaneous objection rule did not apply to bar appellate review of the court’s failure to follow the mandatory sentencing requirements.

Most recently in Walker v. State, 462 So.2d 452 (Fla.1985), we quashed the above-mentioned decision of the First District in Walker v. State on the authority of Rhoden and held that it is clear that the legislature intended that the trial court make specific findings of fact when sentencing a defendant as an habitual offender and that the trial court’s failure to make such findings is appealable regardless of whether such failure is objected to at trial.

In the present case the statute pursuant to which the trial court retained jurisdiction over one-third of Snow’s sentence provided that “[i]n retaining jurisdiction for purposes of this act, the trial court shall state the justification with individual particularity, and said justification shall be made a part of the court record.” § 947.16(3)(a), Fla.Stat. (1981). If the trial court fails to follow the mandatory requirements of this statute, then pursuant to our decisions in Rhoden and Walker, a defendant may not be precluded from raising this point on appeal because he failed to object in the trial court. The district court, therefore, should have considered this issue.

Accordingly, the decision of the district court declining to consider the issue raised by Snow is quashed, and this cause is remanded to the district court to determine whether the trial court complied with section 947.16(3)(a).

It is so ordered.

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


author: SHAW, Justice.

text:
    Dude EMSHWILLER, Petitioner, v. STATE of Florida, Respondent.
    No. 64763.
    Supreme Court of Florida.
    Jan. 10, 1985.
    Jerry Hill, Public Defender, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for petitioner.
    Jim Smith, Atty. Gen., and Robert J. Krauss, Asst. Atty. Gen., Tampa, for respondent.
   SHAW, Justice.

This case is before us on petition to review Emshwiller v. State, 443 So.2d 343 (Fla. 2d DCA 1983). We granted review based on conflict with Tobe v. State, 435 So.2d 401 (Fla. 3d DCA 1983). Art. V, § 3(b)(3), Fla. Const.

As stated by the district court below, this case presents

a rather confused record in regard to the exact crime with which appellant was charged and convicted.... The caption of the information charging appellant below is titled an “Information for Retail Theft.” The body of the information charges that appellant did “unlawfully take possession of, or carry away, merchandise of a value of $100 or more,” with the intent to deprive the owner of the “full retail value of said property; contrary to chapter 812.014/812.015, Florida Statutes.” It is apparent that throughout the proceedings below, appellant, appellee, State of Florida, and the court considered that appellant- was charged with and tried for grand theft of the second degree. Appellant consented to a verdict form that had three options for the jury: “guilty of grand theft as charged,” “guilty of petit theft as included” and “not guilty.” The jury selected the option of “guilty of grand theft as charged.”

Emshwiller, 443 So.2d 343, 344.

Evidence at trial established that petitioner took sixteen twelve-packs of beer and six cartons of cigarettes from an Al-bertsons store. Under the theft statute, the appropriate penalty range is determined by the valuation of the property involved. Valuation of less than $100 separates petit theft from grand theft. Petitioner requested that the jury be given the following instruction on market value: “what a willing seller is willing to accept and a willing buyer is willing to pay when neither is compelled to sell or buy.” The state persuaded the court to give the definition of retail theft contained in the Standard Jury Instructions in Misdemeanor Cases: the sale price at the time the merchandise was stolen. This definition is also contained in the retail theft statute. § 812.015(l)(c), Fla.Stat. (1981). The jury found petitioner guilty of grand theft. The judgment entered on the day of the verdict, February 22, 1983, adjudicated petitioner guilty of “retail theft,” with “grand theft” written parenthetically and “812.014/812.015” cited as the offense statute numbers. On the day of sentencing, March 29, 1983, another judgment was entered citing as the offense statute number section 812.014(2)(b)(l), but spelling out “retail theft.”

The district court affirmed the conviction and sentence, but remanded to have the judgment reflect that the crime for which petitioner was convicted was grand theft. In its ruling the court rejected petitioner’s argument, and the reasoning in Tobe, that retail theft of merchandise is a separate crime from other theft and that a conviction under the retail theft statute is necessarily a second-degree misdemeanor. It arrived at this result by analyzing the legislative history of sections 812.014, Florida Statutes (Supp.1982), and 812.015, and concluding that section 812.015 created no new crime of retail theft, but “simply provided a set standard by which the market value of property stolen from a retail establishment is determined.” Emshwiller, 443 So.2d at 346. We approve the decision of the district court.

Under section 812.015, retail theft is a species of the theft defined in section 812.014, not a separate crime for purposes of penalty determination. Section 812.015 does not contain a penalty provision for first offenses, but merely enhances penalties for a second or subsequent conviction for petit theft involving merchandise or farm produce taken from a merchant or farmer. Were retail theft a crime necessarily constituting only a misdemeanor, there would be no need to make any determination as to value.

Petitioner argues that even if retail theft is not a separate crime, the instruction on value to the jury as sale price at the time stolen is too narrow. We disagree, as we have previously equated market value with retail price where the theft is from a department store and salability at the retail price is established. See Negron v. State, 306 So.2d 104, 108-09 (Fla.1975).

The decision under review is approved. Language to the contrary in Tobe is disapproved.

It is so ordered.

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


author: McDonald, justice.

text:
    FIDELITY AND CASUALTY COMPANY OF NEW YORK, Petitioner, v. James L. COPE, as personal representative of the Estate of Anna L. Cope, deceased, Respondent.
    No. 64825.
    Supreme Court of Florida.
    January 10, 1985.
    Jonathan L. Alpert of Fowler, White, Gil-len, Boggs, Villareal & Banker, Tampa, for petitioner.
    Robert W. Holman of Hammond & Holman, Pinellas Park, and G. Robert Schultz, St. Petersburg, for respondent.
   McDonald, justice.

We have for review Fidelity & Casualty Co. v. Cope, 444 So.2d 1041 (Fla. 2d DCA 1984), which the district court has certified to be in direct conflict with Kelly v. Williams, 411 So.2d 902 (Fla. 5th DCA), review denied, 419 So.2d 1198 (Fla.1982). We have jurisdiction, article V, section 3(b)(4), Florida Constitution, and quash Cope.

The issue presented is whether an injured party who has secured a judgment in excess of a tortfeasor’s insurance coverage can maintain a “bad faith” excess claim against the insurer when the injured party has executed a release of his claims against the tortfeasor who has satisfied the judgment. We hold that, absent a prior assignment of the cause of action, once an injured party has released the tortfeasor from all liability, or has satisfied the underlying judgment, no such action may be maintained.

On March 30, 1978, while driving a vehicle owned and occupied by Jacqueline Ge-han, Daniel Brosnan ran a stop sign and struck a car occupied by James and Anna Cope. The collision killed Mrs. Cope and injured Mr. Cope and Gehan. Brosnan had a 10/20 liability policy with Fidelity and Casualty Company of New York (Fidelity) and Gehan had a 10/20 liability policy with Hartford Accident and Indemnity Company (Hartford).

Cope’s attorney demanded that Fidelity pay $10,000 for James Cope’s claim and $10,000 for the estate's claim. Fidelity’s adjuster responded by acknowledging that the injuries were serious enough to warrant the policy limits, but also advised that Gehan’s counsel had put them on notice of a potential claim. It advised that it would tender the $20,000 if Cope’s counsel and Gehan’s counsel could work out a settlement satisfactory to all parties concerned. Approximately two months later Cope’s counsel filed suit against Brosnan, Gehan, and their insurers, Fidelity and Hartford. Fidelity unsuccessfully sought to inter-plead its $20,000 limits in this action. A jury trial resulted in a $100,000 final judgment for the Cope estate. Fidelity and Hartford each paid policy limits of $10,000 to the estate.

Cope then brought an excess judgment action against Hartford based upon its bad faith failure to settle. Fidelity was not a party to this claim. Hartford settled the bad faith action for $50,000 in return for Cope’s execution of a release and a satisfaction of judgment in favor of Hartford, Gehan, and Brosnan. Fidelity was not named in the release and Cope, in dealing with Hartford, did not intend to release Fidelity from an excess claim suit.

Cope thereafter filed this action against Fidelity for the $30,000 which remained unpaid on the final judgment. After a nonjury trial, the trial court found that Fidelity had acted in bad faith during settlement negotiations and ordered Fidelity to pay $30,000 to Cope. The trial court rejected Fidelity’s argument that the release and satisfaction of judgment in favor of its insured, Brosnan, barred any subsequent bad faith action. The district court affirmed, holding that an insurer’s bad faith constitutes a separate tort which is not extinguished with the release of an insured by an injured party. The district court acknowledged and certified the direct conflict between its decision and Kelly v. Williams.

The Fifth District Court of Appeal in Kelly v. Williams correctly stated:

The essence of a “bad faith” insurance suit (whether it is brought by the insured or by the injured party standing in his place), is that the insurer breached its duty to its insured by failing to properly or promptly defend the claim (which may encompass its failure to make a good faith offer of settlement within the policy limits) — all of which results in the insured being exposed to an excess judgment.

411 So.2d at 904 (footnote omitted). The district court noted that a stipulation entered in the cause completely released the insured. Because the insured could not be exposed to any loss or damage from the alleged bad faith of the insurer, no cause of action for bad faith remained for anyone.

In this case the second district disagreed with Kelly, holding that the injured party’s bad faith claim is a separate cause of action and citing Thompson v. Commercial Union Insurance Co., 250 So.2d 259 (Fla.1971). In Thompson this Court, contrary to our prior decision in Sturgis v. Canal Insurance Co., 122 So.2d 313 (Fla.1960), authorized an injured party to maintain a bad faith claim against an insurer. The Court based Thompson on public policy and justified it on the Shingleton v. Bussey, 223 So.2d 713 (Fla.1969), third party beneficiary concept and the right of a real party in interest to maintain a suit. Nowhere in Thompson, however, did we change the basis or theory of recovery. We did not extend the duty of good faith by an insurer to its insured to a duty of an insurer to a third party. The basis for an action remained the damages of an insured from the bad faith action of the insurer which caused its insured to suffer a judgment for damages above his policy limits. Thompson merely allowed the third party to bring such an action in his own name without an assignment.

An essential ingredient to any cause of action is damages. In this case Brosnan originally suffered a judgment in excess of his policy. Before this action was filed, however, the judgment was satisfied. Upon its being satisfied Brosnan no longer had a cause of action; if he did not, then Cope did not. Cope’s action was not separate and distinct from, but was derivative of Brosnan’s.

The Fifth District Court of Appeal properly analyzed the nature of this action, and its result is correct. The second district interpreted Thompson incorrectly. We hold that if an excess judgment has been satisfied, absent an assignment of that cause of action prior to satisfaction, a third party cannot maintain action for a breach of duty between an insurer and its insured. Having reached this conclusion, we will not address the issue of whether the conduct of Fidelity in this case was such to be liable for a bad faith claim.

The instant district court decision is quashed and remanded with instructions to direct the entry of judgment for Fidelity.

It is so ordered.

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

EHRLICH, J., concurs in result only.

ADKINS, J., dissents.

      . In this case the insured did not assign the excess claim to the injured party.

      .Under established insurance law Hartford’s coverage would be primary and Fidelity’s excess. Brosnan would have been an additional insured under Hartford’s policy. State Farm Mut. Auto. Ins. Co. v. Universal Underwriters Ins. Co., 365 So.2d 778 (Fla. 1st DCA 1978), cert. denied, 373 So.2d 462 (Fla.1979).

      . The demand letter did not include an offer to settle for that amount, but at trial it was treated as such an offer.

      . James Cope's individual claim was settled.

      . Should this Court recognize a duty from an insurer to a third party injured party to settle a claim within its policy limits, the damages of that third party would be entirely different from the damages of an insured. At best such damages would be the extra cost of going to trial and loss of the money that earlier should have been paid.


text:
    George WICKER, Jr., Petitioner, v. STATE of Florida, Respondent. STATE of Florida, Petitioner, v. George WICKER, Jr., Respondent.
    Nos. 64958, 64985.
    Supreme Court of Florida.
    Jan. 10, 1985.

      Jerry Hill, Public Defender, and Allyn Giambalvo and Deborah K. Brueckheimer, Asst. Public Defenders, Tenth Judicial Circuit, Clearwater, for petitioner/respondent.
    Jim Smith, Atty. Gen. and Robert J. Landry, Asst. Atty. Gen., Tampa, for respondent/petitioner.
   ALDERMAN, Justice.

We review the decision of the Second District Court of Appeal in Wicker v. State, 445 So.2d 581 (Fla. 2d DCA 1984), because of express and direct conflict with the decisions of other appellate courts in this state. Art. V, § 3(b)(3), Fla. Const. Both the defendant and the state seek review, and their cases have been consolidated. We quash that part of the district court’s decision that reversed defendant’s conviction and sentence for involuntary sexual battery. We approve that part of the district court’s decision that affirmed defendant’s convictions and sentences for burglary and robbery.

George Wicker and another man entered the victim’s home while she was asleep on the living room couch. The victim, who was five months pregnant, was told that if she screamed, they would kill her children who were asleep in the bedroom. She was then raped and robbed by both men.

Wicker was subsequently charged and convicted of three separate counts: burglary (section 810.02(2), Florida Statutes (1981)); involuntary sexual battery (section 794.011(3), Florida Statutes (1981)); and robbery (section 812.13(2)(a), Florida Statutes (1981)). The district court rejected Wicker’s contention that the burglary charge was deficient because it alleged as an enhancing factor that he committed “an assault” within the burglarized structure without alleging all of the necessary elements of an assault. In rejecting this contention, the Second District acknowledged conflict with the decision of the Fourth District in Lindsey v. State, 416 So.2d 471 (Fla. 4th DCA 1982).

Wicker contends that alleging “an assault” in Count I (burglary) without setting forth all the necessary elements of the assault was error. This issue has recently been resolved against Wicker by this Court in State v. Lindsey, 446 So.2d 1074 (Fla.1984). Based upon our decision in Lindsey, we approve the district court’s holding that Count I of the information was sufficient.

The district court set aside the sexual battery conviction based on its prior holding in McRae v. State, 383 So.2d 289 (Fla. 2d DCA 1980). McRae, citing State v. Pinder, 375 So.2d 836 (Fla.1979), held that a defendant could not be convicted of both the first-degree felony burglary and the assault which served as the basis therefor, because finding that the defendant committed the assault was indispensible to the conviction of first-degree felony burglary. In its cross-petition for review, the state contends that Wicker may be convicted of both burglary and sexual battery. We agree with the state’s position.

In State v. Baker, 456 So.2d 419 (Fla.1984), this Court held that in determining whether separate convictions may result from a single criminal event, it is the statutory elements of the charged crimes which must be analyzed and not the language of the charging document. If a comparison of the crimes' statutory elements reveals that each offense requires proof of at least one additional fact which the other does not, then each is not an included offense of the other. See Borges v. State, 415 So.2d 1265, 1267 (Fla.1982).

This Court has recently reiterated that multiple convictions and sentences may result from a single criminal episode. In State v. Gibson, 452 So.2d 553 (Fla.1984), we stated:

It has never been held authoritatively that double jeopardy prohibits cumulative prosecution and punishment of two or more separate statutory offenses merely because a single act or factual-event provides the basis for proving both or all of the offenses. If the legislative authority intends separate prosecutions and punishments in such instances, they are permissible.

Id. at 557 (citations omitted).

The district court erroneously analyzed the allegations in the charging document to determine whether the convictions could stand instead of analyzing the offenses’ statutory elements. Applying the Baker and Gibson statutory analysis to the present ease, we hold that the sexual battery conviction was proper and should be reinstated.

Involuntary sexual battery, as statutorily defined in section 794.011(3), Florida Statutes (1981), requires (1) a sexual battery; (2) upon a person over the age of eleven years; (3) without that person’s consent; and (4) with the use or threat to use a deadly weapon or with the use of actual physical force which is likely to cause serious personal injury. Conversely, the elements of burglary, as statutorily defined, are (1) entering or remaining in a structure or a conveyance; and (2) with the intent to commit an offense therein. § 810.02, Fla. Stat. (1981). Such burglary is a first-degree felony if, during the course of the offense, the offender commits an assault upon any person or is armed, or arms himself within the structure with explosives or a dangerous weapon. If the offender does not commit any of the aforementioned acts in the course of the burglary but the structure is a dwelling or if a human being is in the structure during the offense, the burglary is a second-degree felony. Otherwise, burglary is a third-degree felony. Thus, it is clear from this analysis that burglary and sexual battery are separate statutory offenses for which separate judgments may be imposed.

Accordingly, the decision of the district court of appeal is quashed in part and approved in part, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

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

ADKINS and OVERTON, JJ., dissent.

       The state, in its brief, distinguishes McRae because in the present case the burglary count did not specifically allege as the assault the sexual battery charged in Count II, whereas in McRae the burglary count did allege that the assault was the sexual battery charged in another count. The same distinction was set forth in White v. State, 412 So.2d 28 (Fla. 2d DCA 1982); however, we find it immaterial to the disposition of this case because the focus of our inquiry is on the statutory elements of the offenses charged and not on the allegations in the charging documents.


text:
    FLORIDA BOARD OF BAR EXAMINERS RE: AMENDMENT OF RULES RELATING TO ADMISSIONS TO THE BAR (25-MONTH RULE).
    No. 65958.
    Supreme Court of Florida.
    Jan. 10, 1985.
    Charles P. Pillans, III, Chairman, Florida Bd. of Bar Examiners, Jacksonville, and C. Graham Carothers, Atty. to the Bd., Tallahassee, for petitioner.
   ALDERMAN, Justice.

The Florida Board of Bar Examiners proposes several amendments to the Rules of the Supreme Court of Florida Relating to Admissions to the Bar. It requests that article III, section 2, be amended to offer an additional method for withdrawal of an application with prejudice upon request of the applicant. It seeks amendment of article III, section 3, to notify applicants who have been served with specifications and who fail to answer or who refuse to agree to the scheduling of the formal hearing and to provide a penalty for such conduct. It also proposes that article VI be amended to add a requirement for reinvestigation of the applicant’s character and fitness if the application for admission to the Bar has been on file over three years; that article V be amended to set a specific fee for reinvestigation; and that article VI, section 1, include language which reemphasizes the educational requirements which must be met before submitting to any part of the Bar Examination. The Board asks that these changes be made effective immediately upon order of this Court. We approve the foregoing amendments.

The Board also proposes that article VI be amended to eliminate the 25-month rule, to consolidate Parts A and B of the General Bar Examination into a two-day examination, requiring the applicant to submit to both portions of the examination with the pass/fail line set using the compensatory model. It proposes eliminating the multiple cut-off model and making the passing scaled score 262 for the consolidated General Bar Examination. It also proposes that the General Bar Examination must be successfully taken at an administration immediately preceding or following the successful completion of the Multistate Professional Responsibility Examination. We reject the Board’s proposal to modify article VI in this manner. We, however, do amend article VI, section 9(a) to eliminate the requirement that an applicant defer retesting for one year after having been unsuccessful in completing the General Bar Examination within 25 months. An applicant must successfully complete the General Bar Examination and the Multistate Professional Responsibility Examination within 25 months from first submitting to any portion of the examination in Florida, but an applicant will no longer have to wait until the passage of at least one administration of the General Bar Examination and the Multistate Professional Responsibility Examination from the close of the 25-month period.

We hereby adopt the following amendments to the Rules of the Supreme Court Relating to Admissions to the Bar. These rule changes will be effective immediately.

It is so ordered.

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

Article III, Section 2:

Section 2. No person shall be recommended by the Florida Board of Bar Examiners to the Supreme Court of Florida for admission to The Florida Bar unless such person first produces satisfactory evidence to the Board of good moral character and an adequate knowledge of the standards and ideals of the profession and that such person is otherwise fit to take the oath and perform the obligations and responsibilities of an attorney. A-n- applicant may withdraw an application for admission to The ■F-Ioridar-Bar-at-any-timer provided, however, in such event the Board may continue its investigative and adjudicatory functions to conclusion. No person shall be recommended for admission to The Florida Bar who has not reached the age of eighteen years.

(a) An applicant may withdraw an application for admission to The Florida Bar at any time; provided, however, in such event the Board may continue its investigative and adjudicatory functions to conclusion.

(b) Alternatively, an applicant may withdraw with prejudice an application for admission to The Florida Bar. The Board shall accept the withdrawal with prejudice and shall immediately dismiss its investigative and adjudicatory functions. An applicant who files a withdrawal with prejudice shall be permanently barred from filing a subsequent application for admission to The Florida Bar.

Article III, Section 3:

Section 3. (a) Prior to recommending an applicant for admission to practice the profession of law in Florida, the Florida Board of Bar Examiners shall conduct an investigation and otherwise inquire into and determine the character, fitness, and general qualifications of every applicant. In every such investigation and inquiry, the Board may obtain such information as bears upon the character, fitness, and general qualifications of the applicant and take and hear testimony, administer oaths and affirmations, and compel, by subpoena, the attendance of witnesses and the production of books, papers and documents. Any member of the Board may administer such oaths and affirmations. Such investigations and inquiries shall be informal, but they shall be thorough, with the object of ascertaining the truth. Technical rules of evidence need not be observed. Any investigative hearing for such purpose may be held by a division of the Board consisting of not less than three members of the Board. Each division shall record its proceedings and shall report its decisions to the full Board.

(b) Following an investigative hearing, the Board may find that an applicant has established his or her qualifications as to character and fitness or that further investigation into an applicant’s character and fitness is warranted or that Specifications be filed charging an applicant with matters which if proven would preclude a favorable finding by the Board. If Specifications are prepared and served upon an applicant, the applicant shall file an answer to the Specifications within 20 days from receipt of the Specifications. If an applicant fails to file an answer to the Specifications within such time or within any extension of that time allowed by the Board, the Specifications shall be deemed admitted and the Board shall enter findings of fact, finding the Specifications proven, and appropriate conclusions of law, which may include a recommendation that the applicant not be admitted to The Florida Bar.

(c) After a timely answer to Specifications has been filed, the Board shall notify the applicant of the dates and locations available for the formal hearing on the Specifications and the applicant and the Board shall agree on a date and location for the hearing. If the applicant fails to agree on one of the dates and locations proposed by the Board, the Board shall set the date and location of the hearing. If the applicant,' without good cause, fails to attend the formal hearing, the Specifications shall be deemed admitted and the Board shall enter findings of fact, finding the Specifications proven, and appropriate conclusions of law, which may include a recommendation that the applicant not be admitted to The Florida Bar.

(b) (d) Formal hearings held in response to Specifications shall be conducted before a quorum of the Board which shall consist of not less than five members. Following the conclusion of a formal hearing held in response to Specifications as provided in subsection-a^ the Board shall expeditiously make its findings of fact and recommendations for or against the admission of an applicant. If sufficient time has not passed since the occurrence of the behavior described in one or more of the Specifications sustained to permit the Board to determine whether the applicant has established his or her qualifications and what recommendations the Board would make to the Supreme Court of Florida, the Board may petition the Supreme Court of Florida for a reasonable extension of time for further investigation, not to exceed one year after the conclusion of the formal hearing. If an extension is granted, the Board may continue its investigation or otherwise acquire such additional information as is needed to permit it to make its final decision. The applicant shall be notified of any petition for extension and shall be given an opportunity to show cause why the extension should not be granted. The applicant shall be notified promptly by the Board of its findings of fact and recommendation, which action shall be subject to review by the Court as specified under Article III, Section 4(b).

Article IV, Section 2:

Section 2. The Board shall not recommend to the Court for admission any applicant whose Application for Admission to The Florida Bar has been on file for more than three years without reinvestigation into the applicant's character and fitness as necessary to bring the investigation to a current status. The applicant shall be required to file a new Application for Admission to The Florida Bar answering each item for the period of time from the filing of the original application to the date of the filing of the new application stating current references and a fingerprint card which shall be accompanied by a fee of $200.00 as provided by Article V, Section 3 of the Rules.

Section 2, 3. ....

Section 3,4. ....

Section 4, 5. ....

Section §,6. ....

Section 6, 7. ....

Section 7, 8. ....

Section 8, 9. ....

Section 9, 10. ....

Section 46, 14. ....

Article V, Section 3:

Section 3. The application form described in Article IV, Section 2 shall be accompanied by a fee of $200,00,

Section 3, 4. ....

Section 4, 5. ....

Section 5, 6. ....

Section 6» 7. ....

Section 7, 8. _

Section 8, 9. ....

Section 9, 10. ....

Section 46, 11. ....

Section 44, 12. ....

Section 42, IF. ....

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Section 44, 15. ....

Section 45, 16. ....

Section 46, 17. ....

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Section 49, 20. ....

Section 20, 21. ....

Section 24, 22.

Article VI, Section 1:

Section 1. The Florida Bar Examination shall consist of a General Bar Examination and the Multistate Professional Responsibility Examination (MPRE). An applicant may not submit to any portion of the Florida Bar Examination unless the undergraduate and law school educational requirements have been met pursuant to Article III, Section 1.

Article VI, Section 9(a):

Section 9. (a) An applicant must successfully complete the General Bar Examination and the Multistate Professional Responsibility Examination (MPRE) within 25 months from first submitting to any portion of the examination in Florida. A* applicant who fails four times to pass any part of the Gener-al--Bar-Examination or who fails to pass both the-General Bar Examination and the MuItistateRrofessional — Responsibility—Examination—(MPRE) within 25 months shall be ineligible to sit for-any part of the examination until the passage-of-at least 1 administration of the General — Bar—Examination-and- the- Multi-state Professional-Responsibility-Examination (MPRE) from the close of the 25-month period. If the applicant does not do so, then, Aat the end of that period, the applicant must again successfully complete the General Bar Examination and the Multi-state Professional Responsibility Examination (MPRE) in their entirety regardless of whether a part has been successfully completed in the past.


author: PER CURIAM.

text:
    THE FLORIDA BAR IN RE AMENDMENTS TO INTEGRATION RULE (ARTICLE III, SECTIONS 2 AND 6).
    No. 65751.
    Supreme Court of Florida.
    Jan. 17, 1985.
    Gerald F. Richman, Miami, President for The Florida Bar; Patrick G. Emmanuel, Pensacola, President-elect for The Florida Bar; John F. Harkness, Jr., Tallahassee, Executive Director for The Florida Bar; Phyllis Shampanier, Miami Beach, Chairperson for the Integration Rule and Bylaws Committee; John T. Berry, Tallahassee, Staff Counsel for The Florida Bar; and John A. Boggs, Tallahassee, Director of Lawyer Regulation for The Florida Bar, petitioner.
   PER CURIAM.

The board of governors of The Florida Bar has petitioned the Court to amend article III, sections 2 and 6 of the integration rule so as to allow an additional out-of-state representative on the board of governors. After studying this matter, we grant the petition. Sections 2 and 6 of article III, therefore, are amended as follows:

2. The Board of Governors shall consist of the president of The Florida Bar, the president-elect, the president of the Young Lawyers Section, the president-elect of the Young Lawyers Section, a representatives of the active nonresident members of The Florida Bar, and representatives elected by and from the active members of The Florida Bar in each judicial circuit. There shall be one such circuit representative from each judicial circuit and fourteen additional circuit representatives who shall be apportioned among and elected from the judicial circuits on the basis of the number of members in good standing residing in each circuit. The formula for determining the number of representatives apportioned to and elected from each judicial circuit shall be: first, determine the average number of members in good standing residing in each judicial circuit by dividing the number of Florida resident members in good standing by the total number of judicial circuits, and then dividing the members in good standing residing in each judicial circuit by such average. Apportionment of representatives among the judicial circuits shall be in accordance with the results thus obtained, by apportioning each judicial circuit one representative for each multiple of one (including one) of the results obtained for such circuit, provided such number does not exceed fourteen, and one representative for the circuit’s remaining fraction of a multiple commencing with the largest such fraction and continuing in descending order to the next largest fraction and so on until all representatives of this category shall be apportioned to judicial circuits; in the event the sum of the whole integers so determined exceeds fourteen, then circuits whose results show whole integers from the application of the formula shall be determined by eliminating one representative for the lowest fraction of a whole integer among such circuits and continuing in ascending order until fourteen is reached.
6. Commencing in 1979, a Two (2) nonresident members of the Board of Governors shall be nominated and elected in accordance with the bylaws by the active nonresident members of The Florida Bar. Such elected members shall hold office for a term of two years. Any vacancy arising in such offices shall be filled for the unexpired term by a special election held in accordance with the bylaws.

These amendments will be effective immediately upon the filing of this opinion, and the new out-of-state representative will be elected to a one-year term in 1985.

It is so ordered.

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

      This case was argued together with case nos. 65,877, 65,197, and 65,758. Case nos. 65,877 and 65,197 propose comprehensive revisions of the rules regarding The Florida Bar, and we have not yet completed reviewing those petitions. Opinions on those cases will be forthcoming.


text:
    THE FLORIDA BAR IN RE AMENDMENTS TO INTEGRATION RULE (ARTICLE XI, RULES 11.02(4)(e), 11.08(5) AND (6), 11.11, 11.11(9), AND 11.04(7)).
    No. 65758.
    Supreme Court of Florida.
    Jan. 17, 1985.
    Gerald F. Richman, President for The Florida Bar, Miami, Patrick G. Emmanuel, President-elect for The Florida Bar, Pensacola, John F. Harkness, Jr., Executive Director for The Florida Bar, John T. Berry, Staff Counsel for The Florida Bar, John A. Boggs, Director of Lawyer Regulation, for The Florida Bar, Tallahassee, and Phyllis Shampanier, Chairperson for the Integration Rule and Bylaws Committee, Miami Beach, for petitioner.
   PER CURIAM.

The board of governors of The Florida Bar has petitioned the Court to amend article XI of the integration rule in regards to unidentifiable trust fund accumulations, resignation and reinstatement, and review of grievance committee action by designated reviewers. After reviewing these proposed amendments, we adopt them as modified. Rules 11.02(4)(e), 11.08(5) and (6), 11.11, 11.11(9), and 11.04(7) are, therefore, amended as follows:

11.02(4)
(e) Unidentifiable trust fund accumulations and trust funds held for missing owners. When an attorney’s trust account contains an unidentifiable accumulation of trust funds or property, or trust funds or property for missing owners, such funds or property shall be so designated. Diligent search and inquiry shall then be made by the attorney to determine the beneficial owner of any unidentifiable accumulation or the address of any missing owner. If the beneficial owner of an unidentified accumulation is determined, the funds shall be properly identified as his trust property. If a missing beneficial owner is located, the trust funds or property shall be paid over or delivered to the beneficial owner if he is then entitled to receive the same. Trust funds and property which remain unidentifiable and funds or property which are held for missing owners after being designated as such shall may, after diligent search and inquiry fails to identify the beneficial owner or owner’s address, be disposed of be reported to The Florida Bar with a request that The Florida-Bar-accept-such money or property and-hold-the-same in trust for the missing or unidentified-owners and for ultimate disposition as provided in chapter 717, Florida Statutes. I-f-The-F-lorida Bar declines to accept-the-subject money or property then within-one year after the money or property-is-designated as an unidentified-aGGumulation or being held for missing owners — the—attorney shall petition the -circuit court for declaration of abandoned property as provided — in section 717.131, Florida Statutes, and serve a copy of the petition on- The-Florida Bar.
11.08
(5) Dismissal of pending disciplinary cases. If resignation is accepted under this rule, such resignation shall serve to dismiss all pending disciplinary cases. The resigned attorney may be then again admitted to-the-Bar upon application to and approval by the Board of Governors reinstated as a member of The Florida Bar in good standing pursuant to rule 11.11 and upon full compliance with any conditions required by the judgment which granted the leave to resign. A rejection of such application may be reviewed by petition to the Supreme Court.
(6) Reinstatement. In the case of a resignation submitted in connection with a disciplinary action, no readmission application a petition for reinstatement may not be filed until three years after the date of the Supreme Court order , which accepted such resignation or such additional time as the attorney may have stated in his petition to resign, nor until all costs in disciplinary cases that were dismissed because of the resignation have been paid by the applicant for readmission reinstatement. If an attorney’s petition to resign states that it is without leave to apply for readmission reinstatement permanently, such condition shall preclude any readmission reinstatement.
11.11
An attorney who has been suspended or has resigned for-cause pursuant to rule 11.08 may be reinstated to membership in The Florida Bar pursuant to this rule. The proceedings under this rule are not applicable to suspension for nonpayment of dues.
* ⅜ sfc * * *
(9) Judgment. If the petitioner is found unfit to resume the practice of law, the petition shall be dismissed. If the petitioner is found fit to resume the practice of law, the judgment shall reinstate him in The Florida Bar; provided, however, that the judgment may make such reinstatement conditional upon the making of partial or complete restitution to parties harmed by the petitioner’s misconduct which led to the suspension or resignation of his membership in The Florida Bar; and further provided, however, that if suspension or resignation of petitioner has continued for more than three years, the reinstatement may be conditioned upon the furnishing of such proof of competency as may be required by the Supreme Court, which proof may include certification by the Florida Board of Bar Examiners of the successful completion of an examination for admission to The Florida Bar subsequent to the date of suspension or resignation.
11.04
(7)Review of grievance committee action by the designated reviewer. A designated reviewer at any time may review the actions of a grievance committee and shall review those grievance committee actions referred to him in writing. If the designated reviewer disagrees with the grievance committee action, he shall make a report and recommendation to the Disciplinary Review Committee. In those matters referred in writing, by Bar 'headquarters staff counsel the designated reviewer shall make the report and recommendations within 21 days following the mailing date of the referral^ otherwise the grievance committee action shall stand.

These amendments will be effective immediately upon the filing of this opinion.

It is so ordered.

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

      . This case was argued together with case nos. 65,877, 65,197, and 65,751. Case nos. 65,877 and 65,197 propose comprehensive revisions of the rules regarding The Florida Bar, and we have not yet completed reviewing those petitions. Opinions on those cases will be forthcoming.

      . We reject the bar's proposed amendment to rule 11.08(5) which deletes petitioning this Court for review of a rejected application for reinstatement.


author: MILLS, Judge.

text:
    Debbie REZZARDAY, Appellant, v. WEST FLORIDA HOSPITAL, Appellee.
    No. AX-203.
    District Court of Appeal of Florida, First District.
    Nov. 6, 1984.
    Rehearing Denied Feb. 8, 1985.
    J. Nixon Daniel, III of Beggs & Lane, Gary B. Lane, Pensacola, for appellant.
    Ronald C. Henson and James E. Moye of Ford & Harrison, Atlanta, Ga., Frank C. Bozeman of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Pensacola, for appellee.
   MILLS, Judge.

Ms. Rezzarday appeals from a jury verdict in favor of West Florida Hospital on her complaint against it for slander. We affirm.

The basis of Ms. Rezzarday’s appeal is that the trial court erred in refusing to admit certain testimony under the “admissions exception” to the hearsay rule. Section 90.803(18), Florida Statutes (1983). However, Ms. Rezzarday did not assert this ground for admissibility at trial, and hence the issue was not properly preserved for our review. See Diaz v. Rodriguez, 384 So.2d 906 (Fla. 3d DCA 1980); 3 Fla.Jur.2d, Appellate Review § 92 (1978).

The judgment of the trial court is affirmed.

ERVIN, C.J., and ZEHMER, J., concur.


author: PER CURIAM. WALDEN, Judge,

text:
    WORTH AVENUE ASSOCIATES, LTD., and Murray H. Goodman, its general partner, Appellants/Cross-appellees, v. The TWENTY-FOUR COLLECTION, INC., Appellee/Cross-appellant.
    No. 83-1985.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.
    L. Louis Mrachek and David P. Acker-man of Gunster, Yoakley, Criser & Stewart, P.A., Palm Beach, for appellants/ cross-appellees.
    Richard L. Lapidus and Robert P. Frankel of Lapidus & Stettin, P.A., Miami, for appellee/cross-appellant.
   PER CURIAM.

Affirmed.

BARKETT, J., and GREEN, OLIVER L„ Jr., Associate Judge, concur.

WALDEN, J., concurs in part; dissents in part.

WALDEN, Judge,

concurring in part; dissenting in part:

I concur in the decision to affirm the appealed judgment except that I dissent as concerns its refusal to award the landlord reasonable attorney’s fees and costs.

The judgment found that the tenant breached the lease in three particulars, albeit minor breaches which did not warrant forfeiture. The judgment went on to order the tenant to remedy the breaches and honor the lease terms.

The provisions of the lease, Section 19.04, Additional Remedies of Landlord, specifically provide, as I read it, that the landlord “in case of any event of default” is to recover from the tenant costs and attorney’s fees. The tenant defaulted; ergo, the tenant, under the terms of the lease, is obligated to pay fees and costs. It is not appropriate for the trial court to ignore and rewrite such terms.

I would remand with instructions to award the landlord reasonable attorney’s fees and costs.


text:
    Warren McFADDEN, Appellant, v. Ronald J. DENICOLA, Appellee.
    No. 83-2643.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 1984.
    Val L. Osinski of the Law Offices of Val L. Osinski, Coral Springs, for appellant.
    Mark D. Cohen of Britton, Cohen, Cassel, Kaufman & Schantz, P.A., Fort Lauder-dale, for appellee.
   PER CURIAM.

AFFIRMED.

LETTS, HERSEY and GLICKSTEIN, JJ., concur.