author: ALDERMAN, Justice. McDONALD, Justice,

text:
    Ernest John DOBBERT, Jr., Appellant, v. STATE of Florida, Appellee. Ernest John DOBBERT, Jr., Petitioner, v. Louie L. WAINWRIGHT, Secretary Department of Corrections of the State of Florida, Respondent.
    Nos. 65465, 65782.
    Supreme Court of Florida.
    Aug. 28, 1984.

      Patrick D. Doherty, Clearwater, and Steven Malone of Rahdert, Malone & Richardson, St. Petersburg, for appellant/petitioner.
    Jim Smith, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., Miami, for appellee/respondent.
   ALDERMAN, Justice.

Ernest John Dobbert appeals two orders of the trial court denying his motions to vacate his judgment and death sentence. He has also filed a petition for writ of habeas corpus and an application for stay of execution. Finding no error, we affirm the trial court’s denial of these motions. We also deny the petition for habeas corpus and the application for stay.

In 1974, Dobbert was convicted of the first-degree murder of his nine-year-old daughter and was sentenced to death. He was also convicted of second-degree murder of his seven-year-old son, child torture of his eleven-year-old son, and child abuse of his five-year-old daughter. This Court and the Supreme Court of the United States affirmed his convictions and death sentence. Dobbert v. State, 328 So.2d 433 (Fla.1976), affd, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). Subsequently Dob-bert sought relief here on the basis that he had not received a copy of the presentence investigation report which had been furnished the trial court at the time it first sentenced Dobbert. Finding a Gardner violation, we relinquished jurisdiction to the trial court with directions to set aside the death sentence and to afford Dobbert the opportunity to respond to the presentence investigation report before resentencing. The trial court set aside the sentence, conducted a plenary resentencing hearing, and again sentenced Dobbert to death. We affirmed the sentence of death, and the Supreme Court of the United States denied certiorari. Dobbert v. State, 375 So.2d 1069 (Fla.1979), cert. denied, 447 U.S. 912, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980). The governor signed a warrant for Dobbert’s execution on June 25, 1981, and his execution was scheduled for July 22, 1981. The Supreme Court of the United States, however, stayed execution pending its disposition of a petition for writ of certiorari in Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981). A second warrant was signed by the governor on January 6, 1982, and Dobbert’s execution was scheduled for February 2, 1982.

The day after the governor signed the second warrant, Dobbert filed a motion to vacate his death sentence and alleged that he was denied his sixth amendment right to a fair trial because the state, in the Fourth Judicial. Circuit, had systematically exercised peremptory challenges to exclude persons who had scruples against the imposition of the death penalty; that the Supreme Court of Florida may have improperly considered psychiatric examinations in some death appeals; that the Supreme Court of Florida’s construction of the aggravating circumstance of “heinous, atrocious, or cruel” is overbroad, thereby rendering its application unconstitutional; that the trial court considered nonstatutory aggravating factors; and that the imposition of the death penalty in his case constituted cruel and unusual punishment. In an addendum to his motion to vacate, Dobbert alleged that the trial court erred in imposing the death sentence after a jury recommendation of life. After hearing, the trial court denied Dobbert’s motion to vacate. We affirmed and denied his motion for stay of execution. Dobbert v. State, 409 So.2d 1053 (Fla.1982). He then filed a petition for writ of habeas corpus alleging thirteen grounds for relief in the federal district court. The district court issued a certificate of probable cause under 28 U.S.C. § 2253 (1976), but denied a stay of execution. In the meantime the United States Circuit Court of Appeals for the Eleventh Circuit granted Dobbert’s request for stay of execution. Dobbert v. Strickland, 670 F.2d 938 (11th Cir.1982). The federal district court denied his petition for relief on January 30, 1982. Dobbert v. Strickland, 532 F.Supp. 545 (M.D.Fla.1982). He appealed to the United States Circuit Court of Appeals for the Eleventh Circuit which affirmed. Dobbert v. Strickland, 718 F.2d 1518 (11th Cir.1983), cert, denied, — U.S. -, 104 S.Ct. 3591, 82 L.Ed.2d 887 (1984).

In February 1982, Dobbert filed a request with this Court for leave to file a petition for writ of error coram nobis on the basis that he was convicted of the ffet-degree murder of his daughter and was sentenced to death solely upon false testimony of his son and that the untruthfulness of this testimony could not have been discovered at the time of trial through the use of due diligence. We denied his request on the basis that the evidence submitted by Dobbert was not new evidence. Dobbert v. State, 414 So.2d 518 (Fla.1982).

After this Court’s denial of his request for leave to file a petition for writ of error coram nobis, Dobbert filed a second petition for writ of habeas corpus in the federal district court. He alleged that his conviction of first-degree murder was based solely on perjured testimony. The federal district court dismissed this petition without prejudice. Dobbert v. Strickland, No. 82-1014-Civ-J-B (M.D.Fla. May 6, 1983).

Appeal from Denial of Initial Rule 3.850 Motion

Dobbert, pursuant to Florida Rule of Criminal Procedure 3.850, then filed a second motion to vacate his judgment and sentence wherein he contended that his conviction and sentence for the first-degree murder of his daughter were based solely on perjured testimony; that he was denied effective assistance of counsel because counsel did not adequately cross-examine John Dobbert III, Dobbert’s son; and that the prosecutor used testimony which he knew or should have known was perjured.

The trial court held an evidentiary hearing and then entered a detailed order denying Dobbert relief. It made findings of fact and carefully set out its rationale for denying relief on each of the grounds raised by Dobbert. He appeals this order and argues that the trial court erred in denying his request for relief on each of these grounds.

Relative to Dobbert’s claim of ineffective assistance of counsel, the trial court went at great length into the background, experience, preparation, and trial strategy of Dobbert’s counsel. It found that his counsel’s trial strategy and tactics were based on counsel’s considerable experience, exhaustive preparation, judgment, and knowledge of the case. The court summarized the present criticism of defense counsel as follows:

In more succinct terms, Southwood was effective counsel in months of pretrial preparation, was effective counsel in filing twenty-one motions and pleadings, was effective counsel in taking forty-one depositions, was effective counsel in five days of jury voir dire, was effective counsel in five days of trial, was effective counsel in direct and cross examination of trial witnesses, and was effective counsel in the advisory sentence proceedings. But, because he did not question one witness in the manner Doherty and Harrison considered appropriate — they contend he was ineffective counsel for the defendant.

The trial court notes that the assertion now being made by Dobbert’s present counsel and concurred with by a defense witness testifying at the evidentiary hearing is being made ten years after thfe trial, long removed from the publicity, drama, and intensity which surrounded the trial in 1974 and without the benefit of defense counsel’s meticulous preparation and extensive knowledge of all the facts of the case. After quoting the portions of defense counsel’s testimony at the evidentiary hearing describing his basis for not questioning John Dobbert III in the manner which present counsel for Dobbert asserts he should have done, the trial court concluded that counsel was effective. The court explained that defense counsel, in his cross-examination, attempted to limit John Ill’s testimony to avoid a “parade of horribles” that might have been brought out by John III had counsel further cross-examined him along the lines now put forth by Dobbert in his 3.850 motion. The trial court outlined the prejudicial facts that could have been testified to by John III, facts which defense counsel and the state attorney were fully aware of by virtue of months of exhaustive preparation. It found that by limiting cross-examination, defense counsel avoided the risk of John III “breaking down” and relating many incidents which were not brought out on direct examination by the assistant átate attorney but which he was prepared to go into and had attempted to bring out. Had the bestial behavior and sadistic brutalities been brought out on cross-examination or on redirect, the court found there would be little doubt that it would have inflamed the minds of the jurors.

Applying the test announced by this Court in Knight v. State, 394 So.2d 997 (Fla.1981), wherein this Court established the criteria to be applied in evaluating the merits of claims of ineffective assistance of counsel, the trial court held that Dobbert failed to prove that defense counsel was ineffective and that, even though the defense failed to carry its burden, the state presented evidence to show beyond a reasonable doubt that there was no prejudice in fact. The court found that the evidence conclusively shows that defense counsel was effective trial counsel.

Dobbert dhallenges the findings of the trial court that he did not meet his burden under Knight to demonstrate ineffective assistance of counsel but additionally argues that the criteria for evaluating ineffectiveness of counsel claims have been altered by the decision of the Supreme Court of the United States in Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that, therefore, the case should be remanded for a new hearing with instructions to apply the standards enunciated in Washington.

First, we hold that the trial court properly determined that Dobbert failed to establish a claim of ineffective assistance of counsel under the Knight test. Moreover, we also hold that he has failed to establish this claim under the standards outlined in Strickland v. Washington to determine whether a defendant has been denied his sixth amendment right to effective assistance of counsel. Contrary to Dobbert’s assertion, we have previously stated that the standards announced in Washington do not differ significantly from the standards which we previously adopted in Knight. Downs v. State, 453 So.2d 1102 (Fla.1984); Jackson v. State, 452 So.2d 533 (Fla.1984). We find that Dobbert has failed to demonstrate the ineffectiveness of his counsel under the standards set forth in Strickland v. Washington. In Washington, the Supreme Court held that for a defendant to succeed on a claim of ineffectiveness of counsel, he must show that counsel’s performance was deficient and that the deficient performance prejudiced his defense. Counsel’s performance is measured by a standard of reasonableness under prevailing professional norms considering all the circumstances at the time of counsel’s conduct. The Supreme Court expressly stated:

Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134 [102 S.Ct. 1558, 1574-1575, 71 L.Ed.2d 783] (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”

104 S.Ct. at 2065-66. It further emphasized that defense counsel is strongly presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment and that strategic choices after thorough investigation of the law and facts are virtually unchallengeable.

Accordingly, we affirm the trial court’s denial of this claim for relief.

Next, as to Dobbert’s claim that his murder conviction was based solely on perjured testimony of John Dobbert III, the trial court reviewed, evaluated, and related in great detail the chronology of proven facts relating to statements and testimony of John Dobbert III. It concluded that it is obvious from this analysis that the murder conviction was not based .solely or in part upon perjured testimony and that there is no evidence or proof to support present counsel’s allegation of perjury.

We agree and hold that this ground is likewise without merit and was properly denied by the trial court.

Addressing Dobbert’s assertion that the prosecutor used testimony which he knew or should have known was perjured testimony, the trial court evaluated the assistant state attorney’s background and experience, his preparation to contact John III, his efforts to ensure truthful testimony, his visits with John III in Wisconsin, his evaluation of the 1972 police statement, and his evaluation of the circumstances of the police statement. Citing to the record testimony, the court outlined the efforts of the assistant state attorney to ensure .truthful and accurate testimony from John III. It concluded that the assistant state attorney did not use perjured testimony, knowingly or otherwise, and thus found this point to be without merit and denied it.

We likewise find this point to be without merit and affirm the trial court’s denial.

We find no merit to any points raised on this appeal by Dobbert. Accordingly, we affirm the denial of his motion to vacate.

Appeal from Denial of Subsequent Rule 3.850 Motion to Vacate

Subsequent to the trial court’s order denying the initial 3.850 motion and while we were considering the appeal from that order, Dobbert filed another motion to vacate wherein he alleged that the trial court erred in giving a certain jury instruction and in not giving another instruction, that the death penalty is being diseriminatorily applied in this state with regard to the race of the victim, and that counsel’s failure to object to the giving of a particular jury instruction and to object'to the failure to give another instruction constitutes ineffective assistance of counsel. Under Florida Rule of Appellate Procedure 9.600, we allowed the trial court to rule on this subsequent motion.

The trial court denied this motion and held that the claims regarding the instruction on felony murder, which included a reference to abominable and detestable crimes against nature, and regarding the failure to instruct on the underlying offenses enumerated for felony murder were not cognizable in this proceeding because they could have been raised on direct appeal. We agree. McCrae v. State, 437 So.2d 1388 (Fla.1983).

The trial court also summarily denied Dobbert’s claim that the death penalty is being diseriminatorily applied in this state with regard to race of the victim. There is no merit to this claim. In State v. Washington, 453 So.2d 389 (Fla.1984), we reiterated that we have recently rejected claims that Florida’s death penalty is imposed in an arbitrary and discriminatory manner.

As to Dobbert’s claim that trial counsel was ineffective because he failed to object to the giving of the one instruction and the failure of the trial court to give instructions on the elements o’f the underlying felony offenses, the trial court found:

It is noted that Petitioner, in a previous Motion for Post Conviction Relief filed pursuant to Rule 3.850, raised this identical legal challenge based on other facts, and this Court has dealt with this issue at length in its 102 page order issued May 1, 1984.
This Court finds that there is no justifiable excuse for not having raised all the factual allegations to support his legal challenge to the competency of his trial counsel in his previous Motion for Post Conviction Relief. Under the ease law in Florida, petitioner is not permitted to litigate facts in a piece-meal fashion in order to continually reargue a legal claim which has been decided against him in previous litigation. Sullivan v. State, 441 So.2d 609, 612 (Fla.1983), Slattery v. State, 433 So.2d 615 (Fla. 3d DCA 1983).

We agree with the trial court. In Sullivan v. State, 441 So.2d 609, 612-13 (Fla.1983), we stated that a rule 3.850 motion may be summarily denied

when it is based on grounds that have been raised in prior post-conviction motions and have been decided adversely to the movant on their merits. Sullivan’s claim of ineffective assistance of counsel was clearly raised in his previous motion and was decided against him on the merits. The fact that he may raise somewhat different facts to support his legal claim does not compel a different result. The Third District reached this same conclusion in Slattery v. State, 433 So.2d 615 (Fla. 3d DCA 1983). Therein Slat-tery sought to set aside his conviction and sentence on the basis of a claim of ineffective assistance of counsel and that his guilty plea was coerced. The district court determined that these allegations had been raised in a prior motion and had been properly denied by the trial court. The district court correctly concluded:
“In his second motion the appellant has raised different facts to support his allegation of ineffective assistance of counsel which are not permitted under existing Fla.R.Crim.P. 3.850. Therefore the order denying the appellant’s motion is appropriate_” 433 So.2d at 616.

Accordingly, we affirm the trial court’s denial of this subsequent motion.

Petition for Writ of Habeas Corpus

Dobbert also has filed a petition for writ of habeas corpus alleging ineffective assistance of appellate counsel. He argues that appellate counsel was ineffective in not challenging on appeal a jury instruction on felony murder given by the trial court which included reference to the offense of the abominable and detestable crime against nature and in not challenging the failure of the trial court to instruct on the elements of the underlying felony offenses enumerated. He maintains that these errors were fundamental and, therefore, could have been raised on appeal despite trial counsel’s failure to object to the felony murder instruction given by the trial court or to request an instruction on the elements of the underlying felonies enumerated.

Because there was no objection to the presently challenged instruction at trial and no request that the instruction on elements of felony offenses be given, Dob-bert’s appellate counsel could have obtained review of these issues on appeal only by demonstrating that they constituted fundamental errors. If counsel could not convincingly argue fundamental unfairness, then not raising these issues cannot be considered a serious and substantial deficiency. See McCrae v. Wainwright, 439 So.2d 868 (Fla.1983).

In McCrae, we addressed the question of whether the inclusion of the reference to “the abominable and detestable crime against nature” in the definition of felony murder, which offense was stricken from the statutes for vagueness, rendered the trial of McCrae fundamentally unfair and determined that since the instruction did not render the trial fundamentally unfair and was not objected to, the issue would not have been cognizable on direct appeal. Thus, we concluded, the failure of appellate counsel to challenge it on appeal was not a serious and substantial deficiency-

We likewise find that, because the instruction now challenged by Dobbert did not render his trial fundamentally unfair and was not objected to, failure of his appellate counsel to raise this point on appeal was not a substantial and serious deficiency measurably below the standard of performance expected of competent counsel. Knight v. State, 394 So.2d 997 (Fla. 1981).

In support of his argument that failure of the trial court to instruct on the elements of the underlying felony offenses constitutes fundamental error, Dobbert cites Robles v. State, 188 So.2d 789 (Fla.1966), and State v. Jones, 377 So.2d 1163 (Fla.1979). Since our decision in Jones, however, wherein we reaffirmed Robles, we have reiterated that in Jones we expressly noted that there was no contention that there was sufficient evidence to establish premeditated murder. In Knight v. State, Knight argued that his appellate counsel had not provided reasonably effective assistance of counsel because he did not present on appeal the issue of the trial court’s failure to instruct the jury on the elements of the underlying felony. Knight argued that in light of Jones and Robles, this error was fundamental and could have been raised on direct appeal despite his trial counsel’s failure to request this instruction or to object to the failure to give it. We disagreed with Knight’s assertion that failure to give this instruction was per se fundamental error and held:

[W]here there is sufficient evidence of premeditation, the failure to give the underlying felony instruction, where it has not been requested, is not error which mandates a reversal absent a showing of prejudice. See Frazier v. State, 107 So.2d 16 (Fla.1958).
We find the failure of appellate counsel, who was also trial counsel, to raise this issue is not an omission that was a serious deficiency, and we further find that no prejudice was shown....
However, the record in this cause, and in particular the final argument of counsel, demonstrates that the state, although it mentioned felony murder, strongly argued premeditated murder to the jury. The record reflects that there is not only sufficient but overwhelming evidence of premeditated murder. We find that under the circumstances of this case and our review of the record that neither Robles nor Jones applies, but Frazier does apply. We are satisfied beyond a reasonable doubt that the failure to give the instruction at issue was not prejudicial and did not contribute to the petitioner’s conviction. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

394 So.2d at 1002. See also Jent v. State, 408 So.2d 1024 (Fla.1981), cert denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982); McKennon v. State, 403 So.2d 389 (Fla.1981).

In the present case, failure to give this instruction was not fundamental error. Dobbert was indicted for the first-degree premeditated murder of Kelly. Premeditation was the only basis upon which the state proceeded to obtain Dobbert’s conviction for the first-degree murder of Kelly. The record here reflects that there is not only sufficient but overwhelming evidence of premeditated murder. Therefore, State v. Jones and Robles v. State are not applicable here.

Dobbert has failed to establish ineffective assistance of appellate counsel under the standards announced in Knight v. State and Strickland v. Washington.

Accordingly, the petition for writ of ha-beas corpus is denied.

Conclusion

Therefore, finding no merit to any of Dobbert’s claims, we affirm the orders of the trial court denying relief, and we deny the petition for writ of habeas corpus. We also deny Dobbert’s motion for stay. No motion for rehearing will be entertained.

It is so ordered.

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

McDONALD, J., dissents in part with an opinion, in which OVERTON, J., concurs.

McDONALD, Justice,

dissenting in part.

Critical to the conviction for first-degree murder and the resulting death sentence of Dobbert was the testimony of his eleven-year-old son, Ernest John Dobbert, III. While the evidence presented without his testimony was adequate to convict of second-degree murder, young Dobbert’s testimony supplied the sole basis for finding premeditation. There is no doubt that Dob-bert inflicted injuries that caused the death of his daughter, but only through the trial testimony of young Dobbert is there evidence of his intent to cause that death.

Before trial and now through recanted testimony, young Dobbert excludes from his testimony that his father intentionally choked his sister to death. On this appeal from the denial of relief it was proclaimed for the first time that young Dobbert’s trial testimony evolved following several hypnotic sessions. It also followed extensive drug therapy and many interviews with the prosecutor. At this juncture it is unclear whether young Dobbert’s testimony was convoluted as a result of these hypnotic sessions. Neither trial counsel, appellate counsel, nor other post-trial motions have raised this issue. Perhaps they could have and because of that it should not be a matter of concern to me now. Nevertheless, since Dobbert’s life depends on the correctness of his son’s testimony, and there appears to be a substantial argument that that testimony did not reflect the untainted or accurate memory of the son, I would grant a stay in this proceeding and delve more deeply into this matter.

I am not unmindful of the age of this case. The trial judge has reviewed and given detailed thought to all of these proceedings. But the inherent unreliability of hypnotic testimony is so great that these other considerations should yield, at least temporarily, to the doubt created by the effect of drugs and the hypnotic sessions on this critical testimony.

I approve of the denial of the habeas corpus petition, but because of the foregoing would grant a stay for further proceedings.

OVERTON, J., concurs.

      . Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).

      . The following grounds were raised in this federal habeas corpus petition: Insufficiency of the evidence, refusal to consider relevant mitigating circumstances, striking aggravating circumstances, refusal to instruct jury on a lesser included offense, the Supreme Court of Florida’s improper ex parte consideration of extra-record materials, systematic exclusion of death scrupled jurors, improper overriding of jury's verdict of life imprisonment, unconstitutionality of trial court overriding jury verdict of life and imposing a sentence of death, improper restriction of mitigating circumstances, refusal to sever counts, improperly admitted prejudicial evidence, improper closing argument, and unconstitutional aggravating evidence.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    J. Russell FORLAW, M.D., Petitioner, v. Walter FITZER, as the personal representative of the Estate of Diane Fitzer, deceased, Respondent.
    No. 64258.
    Supreme Court of Florida.
    Aug. 30, 1984.
    Rehearing Denied Oct. 22, 1984.

      Marjorie Gadarian Graham of Jones & Foster, West Palm Beach, for petitioner.
    Montgomery, Lytal, Reiter, Denney & Searcy, and Edna L. Caruso, West Palm Beach, for respondent.
   PER CURIAM.

This case is before us to answer a question certified by a district court to be of great public importance. Fitzer v. Forlaw, 435 So.2d 839 (Fla. 4th DCA 1983). We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution.

Terry Loomis struck and killed twelve-year-old Diane Fitzer as she rode her bicycle on the shoulder of a road April 19,1979. Loomis was under the influence of Quaa-ludes and alcoholic beverages at the time of the accident. Diane’s father filed suit against Dr. Forlaw and his professional association. The second amended complaint alleged that Dr. Forlaw had prescribed Quaaludes to Loomis at Loomis’s insistence on two occasions, that Dr. For-law knew or should have known that Loom-is was addicted to Quaaludes, and that the doctor failed to warn Loomis not to drink or drive while under the influence of the drug. The complaint alleged that Loomis had gone to the doctor the first time in December 1978, complaining of feeling “hyper,” and adamantly demanded a prescription for Quaaludes, threatening suicide if he did not get relief. According to the complaint, Dr. Forlaw then prescribed thirty-six Quaaludes, 150 mg. per unit. Loom-is went to the doctor again in March 1979, a month before the accident, and received a prescription for fifty Quaaludes, 300 mg. per unit.

The trial court granted a motion to dismiss the complaint because it failed to state a cause of action. The Fourth District reversed, finding that “if a doctor prescribes Quaaludes to a known drug addict, it is foreseeable that the addict may drive an automobile under the influence and cause injury to innocent third parties.” 435 So.2d at 839. On rehearing, the district court certified the following question:

IS A PHYSICIAN WHO PRESCRIBES QUAALUDES TO A KNOWN DRUG ADDICT LIABLE TO A THIRD PARTY FOR THE NEGLIGENCE OF THE PATIENT IN DRIVING A CAR WHILE UNDER THE INFLUENCE OF THE DRUG?

Id. at 840.

Although the specific issue may be of first impression in Florida, this Court recently recognized liability to third parties in a somewhat analogous situation. In Migliore v. Crown Liquors, Inc., 448 So.2d 978 (1984), this Court found that a vendor who sells intoxicating beverages to a minor contrary to section 562.11, Florida Statutes (Supp.1978), may be liable to third persons injured by the minor’s operation of a vehicle. We found that Florida common law recognized the cause of action, based on a line of district court cases. The defendant argued that no cause of action existed until passage of chapter 80-37, section 1, Laws of Florida (codified at section 768.125, Florida Statutes (1983)), which occurred after the accident in Migliore. We held that the statute limited the cause of action previously recognized by the courts.

No allegation of negligence per se is contained in the complaint under review in this case. However, the respondent urges in his argument to this Court that the facts alleged in the complaint would support the conclusion that the defendant violated a law, section 893.12, Florida Statutes (1977). A physician who prescribes a controlled drug in bad faith or outside the course of professional practice acts in violation of the statute, as he falls outside the exception of section 893.05 allowing good faith prescription of such drugs in the course of professional practice, diento v. State, 377 So.2d 663 (Fla.1979). We do not find that the facts alleged show violation of the statute. This case is therefore not controlled by Migliore; the issue before us is not whether a physician in violation of section 893.13 is liable for the injuries of a third party. The certified question likewise does not state the physician is in violation of statute. Accordingly, we address the question of whether prescribing a controlled drug to a known addict is alone enough to render a physician liable to third parties. We conclude that the act of merely prescribing is not negligent and therefore cannot be the basis for finding liability.

There is nothing inherently improper in prescribing drugs to a drug addict. Florida cases have not addressed the question of when prescriptions to known addicts are improper; those cases which have involved improper prescription have been resolved without determining the bounds of propriety. See diento v. State, 377 So.2d 663, 665 (Fla.1979) (physician pleaded nolo con-tendere to violation, challenged constitutionality of chapter 893); State v. Weeks, 335 So.2d 274 (1976) (constitutional challenge); Gallo v. State Board of Medical Examiners, 257 So.2d 97 (Fla. 3d DCA 1972) (review of administrative decision, limited to determining whether decision was supported by substantial competent evidence). While Florida case law offers no guidance, the federal courts have considered the question we raise, in construing the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, Public Law Number 91-513, 84 United States Statutes at Large 1242 (1970) (codified as amended at 21 United States Code sections 801-966 (1982)). As we noted in diento, chapter 893 of the Florida Statutes is modeled on the federal act, and we are justified in turning for guidance to decisions of the federal courts construing the federal act. Cf State ex rel. Feldman v. Kelly, 76 So.2d 798 (Fla.1954).

In Linder v. United States, 268 U.S. 5, 45 S.Ct. 446, 69 L.Ed. 819 (1925), the indictment alleged that the physician gave his patient narcotics which the patient would administer to herself out of the doctor’s control “for the sole purpose of relieving conditions incident to addiction and keeping herself comfortable.” Id. at 17, 45 S.Ct. at 448. The Court rejected finding criminal liability, distinguishing the case from an earlier decision which found liability where a physician prescribed 3,000 doses of drugs to an addict:

The enormous quantity of drugs ordered, considered in connection with the recipient’s character, without explanation, seemed enough to show prohibited sales and to exclude the idea of bona fide professional action in the ordinary course. The opinion cannot be accepted as authority for holding that a physician, who acts bona fide and according to fair medical standards, may never give an addict moderate amounts of drugs for self-administration in order to relieve conditions incident to addiction _ [I]f the [federal drug law] had such scope it would certainly encounter grave constitutional difficulties.

Id. at 22, 45 S.Ct. at 450 (emphasis added). While the Court obviously was not construing the current federal act, the Linder holding is still followed by the federal courts. The Fifth Circuit affirmed the continued viability of the rule in United States v. Collier, 478 F.2d 268 (5th Cir.1973):

A physician is restricted to dispensing or prescribing drugs in the bona fide treatment of a patient’s disease, including a dispensing of a moderate amount -of drugs to a known addict in a good-faith attempt to treat the addiction or to relieve conditions or suffering incident to addiction. However, under the guise of treatment a physician cannot sell drugs to a dealer nor distribute drugs intended to cater to cravings of an addict. Congress did not intend for doctors to become drug “pushers.”

Id. at 272 (citations omitted).

In the complaint in the instant case, if the allegations regarding Doctor For-law’s knowledge of Loomis’s addiction are eliminated, little remains on which to conclude that the doctor acted in bad faith or beyond the scope of his practice when he prescribed the drug. The complaint alleges Loomis asked for the drug to help him sleep in his first meeting with the doctor December 7, 1978. Dr. Forlaw then prescribed thirty-six Quaaludes, enough for thirty-six nights of methaqualone-induced sleep. More than ninety days later, Loomis sought more of the drug. The length of time between the first and second requests for the drug, considering the relatively small number of pills provided on the first occasion, would not indicate to the doctor that Loomis had abused the drug, and, if any conclusion could be drawn, might indicate that Loomis was using the drug only when he needed it, “to relieve conditions incident to addiction,” Linder, assuming the doctor knew Loomis was addicted. Nothing would therefore seem improper in providing a moderately increased number of doses at a higher strength.

The complaint also alleges that Dr. For-law failed to perform a physical examination on Loomis. This fact alone is not enough to conclude the doctor wrote an improper prescription. For example, in United States v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975), a physician was convicted of prescribing methadone in a manner which exceeded the bounds of his practice, a violation of the federal equivalent to sections 893.05 and 893.13 of the Florida Statutes. The facts of the case show that the doctor, during a five-and-one-half month period, wrote more than 11,000 prescriptions for some 800,000 methadone tablets, frequently writing more than 100 prescriptions a day. His fee was based solely on the size of the prescription, only a cursory physical examination was made (if any was made at all), the results of the few tests made were ignored, no attempt was made to control who used the drug by requiring patients to take the drug at the clinic, and no attempt was made to control dosage as the doctor prescribed as much and as often as patients demanded. Under those conditions, the Court found sufficient evidence to conclude the doctor acted outside the course of his practice.

We therefore answer the certified question in the negative. Mere prescription of a controlled drug to a known addict, without circumstances showing the physician has acted in bad faith or beyond the scope of his practice, will not render the doctor liable to third parties injured by the addict’s abuse of the drug.

Accordingly, the certified question is answered in the negative and the district court decision is quashed.

It is so ordered.

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

      . In none of the federal cases we have examined has a failure to conduct a physical examination, alone, been the basis for finding a physician criminally liable under 21 U.S.C. § 841, the functional equivalent to § 893.13, Fla.Stat. See, e.g., United States v. Harrison, 651 F.2d 353 (5th Cir.), 454 U.S. 1126, 102 S.Ct. 975, 71 L.Ed.2d 113 (1981) (evidence sufficient to submit charges to jury where testimony showed doctor made up names for prescriptions, asked "patients” to supply names for same purpose, and alluded to difficulties he might have by having no files for the fictitious names); United States v. Rogers, 609 F.2d 834 (5th Cir.1980) (doctor failed to examine agent/"patients” and prescribed indiscriminately, soliciting patients to name drugs they wanted and otherwise indicating lack of good faith prescription for medical purposes); United States v. Smurthwaite, 590 F.2d 889 (10th Cir.1979) (evidence sufficient to support conviction where naturopathic physician prescribed amphetamines on several occasions without physical examination or medical history, and defendant also told agent/"patients” he knew they were abusing the drugs); United States v. Kirk, 584 F.2d 773 (6th Cir.), cert. denied, 439 U.S. 1048, 99 S.Ct. 726, 58 L.Ed.2d 708 (1978) (evidence sufficient to support conviction where patient was never adequately examined and received prescription for choice of drugs on repeated occasions, and evidence showed doctor had written more than 7,000 prescriptions for controlled drugs over three-year period); United States v. Rosen, 582 F.2d 1032 (5th Cir.1978) (doctor prescribed in return for services of government agents in searching for wiretaps, no pretense of legitimate medical purpose); United States v. Larson, 507 F.2d 385 (9th Cir.1974) (doctor prescribed inordinate amounts of drug, wrote more than one prescription on occasion to “spread” them out, advised patient to fill prescriptions at different pharmacies, and used street names for drugs);
        United States v. Badia, 490 F.2d 296 (1st Cir. 1973) (doctor dispensed drug three times to agent without examination, but also indicated he knew drugs were not going to be used therapeutically); United States v. Bartee, 479 F.2d 484 (10th Cir.1973) (doctor prescribed inordinate amounts of controlled drugs without physical examination after agent/"patients" told doctor they sold or traded drugs obtained with prior prescriptions, and doctor advised agents to patronize several pharmacies to avoid suspicion).
      A case which illustrates the line a jury may draw between a proper and an improper prescription is United States v. Jones, 570 F.2d 765 (8th Cir.1978). The defendant physician was acquitted on one count of prescribing Quaa-ludes outside the course of medical practice, convicted on a second count. The acquittal was for the prescription issued on an undercover police officer’s first visit to the doctor. The doctor took some information, including the statement by the police officer that he worked in a factory and needed something for sleep. The doctor prescribed thirty Quaaludes and advised the "patient" to have the prescription filled at a specific pharmacy if he had trouble getting it filled. The conviction was for the prescription issued during the second office visit. During the second visit, the doctor took no medical history, made no examination, and was told by the "patient" that he had given some of the pills from the prior prescription to his wife. The doctor wrote a prescription for thirty more Quaaludes without being asked. Additional evidence showed that the doctor had issued 478 prescriptions during a 20 month period which had been filled at one drug store, the one recommended by the doctor on the first undercover visit, and that prescriptions during one three-month period accounted for almost half the drug store's volume for controlled drug sales in that period.

      . We do not address the question of whether circumstances constituting a violation of section 893.13 would suffice to allow liability to be imposed on a physician for injuries suffered by third parties. We reserve a decision on that issue for another day.


text:
    Norman PARKER, Appellant, v. STATE of Florida, Appellee.
    No. 61512.
    Supreme Court of Florida.
    Sept. 6, 1984.

      Benedict P. Kuehne of Bierman, Sonnett, Beiley, Shohat & Sale, Miami, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son and Carolyn M. Snurkowski, Asst. At-tys. Gen., Miami, for appellee.
   PER CURIAM.

Parker (defendant) appeals from a judgment of the Eleventh Judicial Circuit, Dade County. The court adjudicated defendant guilty of first-degree murder, four counts of robbery, sexual battery, and unlawful possession of a firearm during the commission of a felony. Defendant was sentenced to death on the first-degree murder count following the jury’s recommendation, and to consecutive terms of life imprisonment on the four robbery and one sexual battery counts. Entry of sentence was suspended on the conviction for unlawful possession of a firearm. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the convictions and sentences.

The evidence at trial established that on July 18, 1978, defendant and his partner, Manson, were admitted to a Miami home in order to complete an illegal drug transaction with two male occupants of the home. Soon thereafter, defendant and Manson produced a sawed-off shotgun and a chrome-plated revolver, respectively, and demanded cocaine and money from the two victims. The two victims were forced to surrender jewelry, strip naked, and lie on a bed. Two other occupants, a female and her boyfriend (Chavez), were discovered in another room and also forced to strip naked and surrender jewelry. All four victims were then confined in the same room, on the same bed. Defendant and Manson exchanged weapons and defendant guarded the four victims while Manson searched the home for additional loot. Defendant threatened to kill the victims because he said he had escaped from jail and had nothing to lose. The victims pleaded with defendant and Manson to take what they wanted and leave. Chavez also pleaded with defendant and Manson to leave his girlfriend alone. After a period of time, defendant aimed the revolver at Chavez’s back, whereupon Manson handed defendant a pillow. Defendant then shot Chavez through the pillow. The other three victims heard the muffled shot and nothing further from Chavez. Chavez died from a single gunshot wound to the chest. Defendant then committed a sexual battery on the female. Defendant and Manson fled, but were later identified by the surviving victims from a photographic lineup.

On August 24, 1978, defendant shot a man in a Washington, D.C., bar. A bullet from this victim’s body was matched with the bullet taken from Chavez’s body. Jewelry found in possession of the defendant in D.C. was similar to jewelry taken from the Miami victims. Defendant testified that he had been in D.C. during the summer of 1978, including the day that the Miami murder was committed. Pour other defense witnesses testified by deposition that defendant was in D.C. during the summer of 1978 but, on cross examination, were unable to swear defendant was in D.C. during the period, July 17-19, 1978.

During the penalty phase, the evidence showed that defendant had been sentenced previously to life imprisonment in 1967 for a first-degree murder committed in Dade County, Florida, and that he was sentenced to life imprisonment for a second-degree murder committed in D.C. in August, 1978.

GUILT PHASE

Defendant raises eight points on appeal. The first of these points concerns two statements that he gave to the police and which he contends should have been suppressed. Following his arrest for the shooting in D.C., defendant confessed. The only relevance of this statement to the guilt phase of the trial in Florida was that a bullet taken from the body of the D.C. victim was matched to the bullet taken from the body of Chavez. Although defendant and his counsel were furnished copies of this statement several years before the trial and were informed of the state’s intent to use the relevant item of information several weeks before the trial, the motion to suppress was not made until the trial was in progress. The trial court denied the motion as untimely, but conducted a hearing for purposes of appellate review. We agree that the motion was untimely, particularly since the trial court had discussed the possible prejudicial effect of admitting evidence from the D.C. shooting and had ruled, prior to trial, that it would limit the evidence to the fact of the shooting only. The defense raised no objection at that time. Fla.R.Crim.P. 3.190(i)(2); Savoie v. State, 422 So.2d 308 (Fla.1982); Davis v. State, 226 So.2d 257 (Fla. 2d DCA 1969). Even if we were to consider the issue, the evidence shows that the statement was voluntary. The testimony of the interrogating officer shows that defendant was promised nothing in return for the statement, voluntarily waived his Miranda rights, did not appear to be in pain or intoxicated, and did not ask to see a doctor. Defendant testified that he understood his rights and what he was doing.

Defendant was also interviewed by two policemen from Metro-Dade County on August 29, 1978, while in the custody of the D.C. police, awaiting trial for the D.C. murder. While being taken to the interview room, defendant told the D.C. policeman that he wanted to see the attorney appointed to defend him on the D.C. murder charge. The D.C. policeman delivered defendant to the interview room without obtaining his counsel. There, the Dade County officers identified themselves as Metro-Dade policemen and defendant signed a waiver of his Miranda rights, agreeing to talk to them. During this interview, defendant stated that he did not know Manson, and that jewelry he was wearing was given to him by his girl friend. Defendant also surrendered the jewelry to the Metro-Dade policemen. Defendant’s pretrial motion to suppress the statement was denied. At trial, one of the Dade County robbery victims testified, without objection, that certain items of the surrendered jewelry were taken from him during the July 18, 1978, episode. A Metro-Dade policeman testified, without objection, that the jewelry was surrendered to him by defendant in D.C. on August 29, 1978. Later, during the case for the defense, defendant testified that he knew Manson and had received the jewelry when Manson visited him in D.C. in late July 1978, after the Dade County crimes. On cross examination, the prosecution elicited from defendant, without objection, that he had told the Metro-Dade police that he did not know Manson and that he had received the jewelry from his girl friend.

In his brief defendant urges that Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), mandates that the statement be suppressed in that he requested counsel prior to the interview. Since the parties submitted their briefs, the United States Supreme Court has held that Edwards will not be retroactively applied to interrogations occurring before Edwards issued. Solem v. Stumes, — U.S. —, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984). At oral argument, defendant conceded that his Edwards argument was no longer viable but argued nevertheless that his Miranda rights were violated. We disagree. First, defendant did not object at trial to the introduction of the three items of information and, thus, has not properly preserved the issue for appeal. Routly v. State, 440 So.2d 1257 (Fla.1983), cert. denied, — U.S. —, 104 S.Ct. 3591, 82 L.Ed.2d 888 (1984); DeLuca v. State, 384 So.2d 212 (Fla. 4th DCA), review denied, 389 So.2d 1108 (Fla.1980); Jones v. State, 360 So.2d 1293 (Fla. 3d DCA 1978). Second, even if the merits are reached, the totality of circumstances surrounding the interview clearly show that defendant voluntarily waived his Miranda rights and agreed to talk to the Metro-Dade police without his counsel present. Defendant claims that he did not know the Metro-Dade police wished to talk with him about the July, 1978, Dade County crimes and thought they only wanted to talk about his escape from the life imprisonment sentence he was serving in Florida. This contention is belied by his testimony at trial that he knew the D.C. police had received a detain-er from Florida on the July 18, 1978, crimes. Thus, after defendant was introduced to the Metro-Dade police in the interview room, he had every reason to believe they were there in connection with the de-tainer. Third, the impeachment of defendant on cross examination by eliciting contradictory statements on whether he knew Manson and where he received the jewelry was proper to attack his credibility even if the statement itself had been inadmissible as direct evidence.' Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954).

Defendant’s second point is that he was denied his sixth and fourteenth amendment rights to a fair trial because the statute governing excusáis from the jury venire excuses expectant mothers and mothers not employed full time, with children under fifteen years of age. The trial court conducted a pretrial hearing on defendant’s motion raising this issue and denied the motion. Defendant has not furnished us with a transcript of this hearing and we are unable to consider the trial court’s ruling. McMann v. State, 55 So.2d 538 (Fla.1951). In any event, we have previously ruled contrary to defendant’s position. Hitchcock v. State, 413 So.2d 741 (Fla.), cert. denied, 459 U.S. 960, 103 S.Ct. 274, 74 L.Ed.2d 213 (1982); McArthur v. State, 351 So.2d 972 (Fla.1977). Defendant’s reliance on Alachua County Court Executive v. Anthony, 418 So.2d 264 (Fla.1982), is misplaced, because that case concerned denial of equal protection to male parents not employed full time with children under fifteen years of age.

Defendant’s third point is that the trial court abused its discretion in refusing his request for additional peremptory challenges and in denying his challenges for cause on two members of the jury venire, both of whom he later peremptorily challenged. All of the charges arose from a single incident, and defendant was given ten peremptory challenges, which he exhausted. He claims ten challenges were inadequate because of the seriousness of the case, the nature of the multi-count charges, and the racial mixture of the jury venire. It is well settled that the trial judge has discretion to grant or deny additional peremptory challenges. Defendant has not shown any abuse of discretion in denying his request. Johnson v. State, 222 So.2d 191 (Fla.1969). Defendant’s arguments on the denial of his challenges for cause are also meritless. The court reserved its ruling on the first challenged juror while voir dire continued. During this voir dire, defendant’s counsel indicated satisfaction with the juror’s responses and did not request a ruling on the challenge for cause following the voir dire. The jur- or was later peremptorily challenged, but defendant has not properly preserved the issue of challenge for cause. Routly; De-Luca; Jones. The second challenged juror acknowledged that her home had been recently burglarized and that she feared crime in the community but would nevertheless follow the directions of the court and render a verdict based on the evidence. We see no error in denying this challenge for cause. Fitzpatrick v. State, 437 So.2d 1072 (Fla.1983), cert. denied, — U.S. —, 104 S.Ct. 1328, 79 L.Ed.2d 723 (1984).

Defendant’s fourth point is that the prosecution should not have been permitted to introduce defendant’s admission that he shot a man in D.C. when an independent corpus delicti had not been established. This point is particularly meritless. During the guilt phase, at defendant’s behest, the trial court limited the evidence concerning the D.C. shooting to the defendant’s admission of the shooting. This admission was relevant because the bullet from the D.C. shooting was linked to the bullet from Chavez’s body. Defendant was not on trial for the D.C. murder. Proving the corpus delicti was not only irrelevant, it might also have been unduly prejudicial. Ruffin v. State, 397 So.2d 277 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 368, 70 L.Ed.2d 194 (1981).

Defendant’s fifth point that the circumstantial evidence was insufficient to support his conviction is meritless. There was ample evidence to support the jury’s verdict, including three eyewitnesses who testified that defendant committed the crimes for which he was convicted. Heiney v. State, 447 So.2d 210 (Fla.1984).

Defendant’s sixth point is that he was denied a fair trial by the introduction of evidence that he used aliases in D.C., suggesting that he was a criminal. This point is also meritless. Defendant’s counsel advised the jury during opening argument that defense witnesses would testify that they knew defendant under another name and that he had been in D.C. at the time of the Dade County crime. Other references to false names used by defendant were introduced without objections. The objection, when made, was untimely and the issue has not been preserved for appeal. Routly; DeLuca; Jones. Further, on the merits, the evidence was relevant to the identification of defendant as the man who admitted shooting the D.C. victim with the bullet linked to the Chavez murder. Ruffin.

Defendant’s seventh point is that there was a break in the chain of custody of the bullet taken from Chavez’s body and that this evidence should not have been admitted. We disagree. There was testimony from a doctor that he initialed the bullet taken from Chavez’s body, that he removed no other bullets from other bodies on that date, that the bullet from Chavez’s body was given to the police, and that the bullet in evidence appeared to be the same bullet removed from Chavez’s body. There was also testimony from a firearms expert that on the following day he received and examined a bullet in a container marked as containing a bullet taken from Chavez’s body and that the bullet which he received and examined was the bullet in evidence. Nothing in the record shows evidence of tampering. The judge did not abuse her discretion in permitting the introduction of the bullet. Peek v. State, 395 So.2d 492, 495 (Fla.1980), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981).

PENALTY PHASE

The jury recommended that the death penalty be imposed. The trial judge entered a written order finding five aggravating factors and no mitigating factors. The five aggravating factors were that the capital felony was committed while defendant was under a sentence of imprisonment, that the defendant had been previously convicted of another capital offense or felony involving the use or threat of violence to some person, that the capital felony was committed while engaged in the commission of, or attempt to commit, or the flight after committing a sexual battery, that the capital felony was committed for the purpose of financial or pecuniary gain, and that the capital felony was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification.

Defendant claims that the prosecutor emotionally inflamed the jury by referring to his previous life sentence for a murder committed in 1967 and to the life sentence imposed for the D.C. murder following the commission of the present murder, and concluding that “if life meant life” both Chavez and the D.C, victim would be alive today. At trial, defendant objected on the ground that the prosecutor was arguing outside the evidence. The trial judge properly overruled the objection because both convictions were obtained prior to the sentencing here and were properly introduced as aggravating factors. § 921.-141(5)(b), Fla.Stat. (1977). Defendant’s argument on appeal that the jury was emotionally inflamed was not presented at trial and, thus, was not properly preserved for appeal. § 90.104(l)(a), Fla.Stat. (1981); United States Fire Insurance Co. v. Dickerson, 82 Fla. 442, 90 So. 613 (1921). Even had it been preserved, it would have no merit. The record shows that defendant was sentenced to life imprisonment for first-degree murder in 1967, and later murdered two additional persons. Under these circumstances, it is manifestly obvious that “if life meant life” the defendant would not have murdered these two additional victims. The prosecutor did not predict that the defendant would murder again if sentenced to life imprisonment and paroled after twenty-five years. This latter argument we have condemned in Teffeteller v. State, 439 So.2d 840 (Fla.1983), cert. denied, — U.S. —, 104 S.Ct. 1430, 79 L.Ed.2d 754 (1984). See also Harris v. State, 438 So.2d 787 (Fla.1983), cert. denied, — U.S. —, 104 S.Ct. 2181, 80 L.Ed.2d 563 (1984).

Defendant argues that the trial judge erred in denying requested jury instructions. There was no error; the requested instructions were encompassed within the standard jury instructions which were properly given. Jones v. State, 411 So.2d 165 (Fla.), cert. denied, 459 U.S. 891, 103 S.Ct. 189, 74 L.Ed.2d 153 (1982).

Defendant also argues that the trial judge erred in finding that the murder was cold, calculated, and premeditated. We disagree. The evidence shows that the murder victim had been pleading with defendant not to harm his girl friend and, at the time he was murdered, was lying naked, face down, on a bed. Before killing the victim by a gunshot blast into his back, defendant accepted a pillow from his partner in order to muffle the shot. It is clear beyond any reasonable doubt that the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification, in order to prevent any interference by the murder victim with the sexual battery which immediately followed the murder.

Defendant’s argument that there was no evidence that he was under a sentence of imprisonment at the time of the murder is meritless. The record shows that on August 10, 1967, defendant was adjudged guilty of first-degree murder and sentenced to life imprisonment. No evidence was introduced relative to a pardon or other legitimate termination of that incarceration nor did the defendant make any such argument.

In addition to reviewing the specific points raised by defendant, we have also reviewed the record pursuant to Florida Rule of Appellate Procedure 9.130(f) and conclude that a new trial is not required.

It is therefore our opinion that the judgments and sentences should be affirmed.

It is so ordered.

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

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . It is not clear that Edwards would be applicable in any event. Defendant’s request for his D.C. attorney was made to a D.C. policeman before the defendant met the Metro-Dade County policeman and became aware they were investigating an unrelated crime. The particular facts and circumstances suggest that defendant knowingly and intelligently waived his right to counsel. Delap v. State, 440 So.2d 1242 (Fla. 1983), cert, denied,-U.S.-, 104 S.Ct. 3559, 82 L.Ed.2d 860 (1984); Stone v. State, 378 So.2d 765 (Fla.1979), cert, denied, 449 U.S. 986, 101 S.Ct. 407, 66 L.Ed.2d 250 (1980); Tuff v. State, 408 So.2d 724 (Fla. 1st DCA), review denied, 413 Sa2d 877 (Fla.1982); Miller v. State, 403 So.2d 1017 (Fla. 5th DCA 1981), review denied, 412 So.2d 468 (Fla.1982).

      . Section 40.013(4), Florida Statutes (1979), has since been amended to eliminate the génder-based classification. Ch. 83-210, § 1, Laws of Fla. (1983).


author: SHAW, Justice.

text:
    Isaac Floyzell THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 63398.
    Supreme Court of Florida.
    Sept. 6, 1984.

      Simson Unterberger, Tampa, for appellant.
    Jim Smith, Atty. Gen. and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appel-lee.
   SHAW, Justice.

Appellant Thompson appeals from his conviction of first-degree murder and from the trial judge’s imposition of the death sentence following the jury’s recommendation of life imprisonment. We have jurisdiction. Art. Y, § 3(b)(1), Fla. Const. We affirm the conviction, but vacate the death sentence and remand to the trial court for imposition of a sentence of life imprisonment as recommended by the jury.

In the early morning hours of 10 September 1982, Robert Kelly, a gas station attendant, was killed by a shotgun blast. Appellant and two female companions (Hicks and Johnson) were charged with first-degree murder and attempted robbery. Hicks and Johnson were permitted by the state to plead guilty to reduced charges. They testified at appellant’s trial that they were with appellant during the night and early morning hours preceding the murder, and that they accompanied him in his car to the vicinity of the murder. They also testified that Hicks, following appellant’s instructions, had driven to the station and bought a small amount of gas, paying with a large bill in order to determine the location of the attendant’s money. Hicks testified that she returned on foot with appellant to the gas station and that appellant was armed with a shotgun. Upon arrival, appellant demanded money from the victim, whereupon the victim stated that he had no money, laughed, and raised a chair in front of himself. At that point, appellant fired the shotgun, killing the victim, and appellant and Hicks fled the scene without consummating the robbery. Johnson testified that she remained in the car as the getaway driver, that she heard the shotgun blast but could not see the murder, and that appellant and Hicks returned quickly thereafter.

Three other witnesses (Presley, Woodard, and Tolliver) testified that in the hours preceding the murder they had discussed robbing the gas station with appellant, and had surveyed the proposed crime scene, but had abandoned the idea. Presley and Woodard testified that appellant told them later that he had killed the victim. All three witnesses testified for the state as part of plea bargains on other unrelated charges. Another witness (Williams) testified that he had been with appellant, Hicks, and Johnson earlier in the night and had discussed robbing the station, but he had left the group hours before the murder and attempted robbery. Williams admitted that he expected to receive assistance from the prosecutor on an unrelated armed robbery charge because of his testimony.

A police officer testified that he had chased appellant in a ear several days after the murder, but appellant had abandoned his car and escaped on foot. However, a shotgun with an expended shell found in the car was linked to appellant by witnesses, and a weapons expert testified that the shotgun and the expended shell were consistent with the victim’s fatal wound. Appellant presented no evidence during the guilt phase.

We note initially that appellant raises no issues concerning the guilt phase or the correctness of his conviction. In response to questioning at oral argument, appellant’s counsel stated that in his professional opinion there were no issues in the guilt phase worthy of appeal and that he chose not to contest the conviction lest such weaker or frivolous issues detract from meritorious issues concerning the sentencing phase. Jones v. Barnes, 468 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). We have, nevertheless, reviewed the conviction as required by section 921.141(4), Florida Statutes (1981), and Florida Rule of Appellate Procedure 9.140(f). We find no reversible error and that the evidence of guilt was overwhelming. We affirm the conviction.

Appellant argues four issues. The first is that the trial court erred in finding that a prior conviction of resisting arrest with violence was an aggravating circumstance in accordance with section 921.141(5)(b), Florida Statutes (1981). Essentially, appellant argues that resisting arrest with violence is not necessarily confrontational or life-threatening, that it carries a less severe penalty than other felonies involving violence, and, without proof of a violent resistance should not have been considered as an aggravating circumstance. There is no merit in appellant’s argument. Resisting arrest with violence is on its face a felony involving the use or threat of violence to the person, and the judge and jury may properly consider it as an aggravating circumstance. There is no requirement that the state go behind the conviction to show the particulars of the conviction.

Appellant next argues that the trial court erred in finding that the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. § 921.-141(5)(i), Fla. Stat. (1981). In the sentencing proceeding the trial court reasoned that appellant’s decision to murder the victim, as opposed to fleeing the scene after being told there was no money, was an aggravating factor within the purview of the statute. We disagree. No evidence was produced to set the murder apart from the usual hold-up murder in which the assailant becomes frightened or for reasons unknown shoots the victim either before or during an attempt to make good his escape. None of the numerous witnesses testified or even suggested that the discussions they held with the appellant concerning the robbery contemplated the murder of the station attendant. Dr. Merin, the examining psychologist, testified that an individual falling within appellant’s I.Q. range functions at a very primitive level, but is capable of behaving in a manner which protects his survival needs. Consequently, he could and would react impulsively, non-reflectively, insensitively, and dangerously. Even with this insight, we can only speculate as to why appellant chose to fire the shotgun. For the purpose of sentencing, the evidence does not prove beyond a reasonable doubt the heightened degree of premeditation, calculation, or planning which we have consistently held is required in order to find this aggravating circumstance. Cannady v. State, 427 So.2d 723 (Fla.1983); Mann v. State, 420 So.2d 578 (Fla.1982). Contrast the present case with cases where we have held the aggravating circumstance was proven beyond a reasonable doubt: O’Callaghan v. State, 429 So.2d 691 (Fla.1983); Middleton v. State, 426 So.2d 548 (Fla.1982), cert. denied, — U.S. —, 103 S.Ct. 3573, 77 L.Ed.2d 1413 (1983); Hill v. State, 422 So.2d 816 (Fla.1982), cert. denied, 460 U.S. 1017, 103 S.Ct. 1262, 75 L.Ed.2d 488 (1983); Jent v. State, 408 So.2d 1024 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982); 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). We hold that the trial court erred in finding the murder was committed in a cold, calculated, and premeditated manner without any pretense of legal or moral justification.

Appellant’s third and fourth issues are that the trial court erred in overriding the jury’s recommendation of life and by failing to give due consideration to the jury’s recommendation. Concerning the latter issue, appellant urges that the short period of time, approximately fifteen minutes, between the receipt of the jury’s recommendation of life imprisonment and the trial judge’s imposition of the death sentence indicate that the judge failed to properly consider the jury’s recommendation. We disagree. Under Florida’s capital punishment law the final responsibility for sentencing is the judge’s. White v. State, 403 So.2d 331 (Fla.1981); cert. denied, — U.S. —, 103 S.Ct. 3571, 77 L.Ed.2d 1412 (1983); Hoy v. State, 353 So.2d 826 (Fla.1977), cert. denied, 439 U.S. 920, 99 S.Ct. 293, 58 L.Ed.2d 265 (1978). Further, there is no legal reason why the trial judge may not deliberate on sentencing concurrently with the jury. King v. State, 390 So.2d 315 (Fla.1980), cert. dnied, 450 U.S. 989, 101 S.Ct. 1529, 67 L.Ed.2d 825 (1981). We agree, however, that under the circumstances of this ease, the trial judge erred in overriding the jury recommendation. Even though a jury recommendation of either life imprisonment or imposition of the death penalty is only advisory, an override of either recommendation requires written findings by the trial judge. State v. Dixon, 283 So.2d 1, 8 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). Two years after Dixon, we reiterated and elucidated our concern over jury overrides by holding that

[a] jury recommendation under our trifurcated death penalty statute should be given great weight. In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.

Tedder v. State, 322 So.2d 908, 910 (Fla. 1975). In the years since we have not wavered from the Tedder test and have consistently applied it to the facts and circumstances of cases on review where the trial judge has overridden a jury recommendation of life imprisonment and imposed the death penalty. McCampbell v. State, 421 So.2d 1072, 1075 (Fla.1982), and cases cited therein. Here, there remained two aggravating circumstances, sections 921.141(5)(b) and (d), which the jury and the judge could properly consider. The judge found no mitigating circumstances. From our review of the record we find that there were mitigating circumstances on which the jury could have properly relied and which could have reasonably persuaded the jury to advise life imprisonment. We note first the uncontradicted testimony of Dr. Merin, an expert psychologist, as to appellant’s mental capacity and attendant personality characteristics. Dr. Merin testified that appellant had an impaired personality and an IQ between 50 and 70, which placed him clinically in the mildly retarded range. Dr. Merin described appellant as “street smart,” with an egocentric, protective and impulsive personality, primarily motivated by personal survival, one who would act immediately and destructively if he sensed his personal survival was at risk, but who was unable to reason abstractly. We do not suggest that appellant’s mental impairment rises to the level of obviating his knowledge of right and wrong. Indeed, Dr. Merin testified that appellant knew right from wrong. Nevertheless, appellant’s mental retardation could have been considered by the jury as a basis for recommending life imprisonment. Dixon, 283 So.2d at 10. The jury might also have been influenced by testimony of appellant’s mother and wife that he was a good son, husband, and father who attempted to provide for the welfare of his family. The mother also testified that appellant’s father suffered from mental illness and died in an institution.

Finally, we note that the state’s case relied heavily on the testimony of six witnesses, all of whom had some part in discussing, planning, or carrying out the attempted robbery, and that all either pled to reduced charges or received promises of assistance on other charges in return for their testimony. We do not suggest that these witnesses could be characterized as accomplices or that they coerced or dominated appellant. Neither do we suggest that this circumstance alone would necessarily overcome the two valid aggravating circumstances. However, we believe there were in this instance sufficient mitigating factors for the jury to reasonably conclude that the aggravating circumstances were overcome and that life imprisonment was a proper sentence.

Accordingly, the conviction is affirmed but the sentence of death is vacated and the cause remanded for imposition of a sentence of life imprisonment.

It is so ordered.

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

ADKINS, J., concurs in the conviction, but dissents from the sentence.


author: PER CURIAM. OVERTON, Justice,

text:
    Anita Marie AMLOTTE, Petitioner, v. STATE of Florida, Respondent.
    No. 64107.
    Supreme Court of Florida.
    Sept. 6, 1984.
    James B. Gibson, Public Defender and Brynn Newton, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for petitioner.
    Jim Smith, Atty. Gen. and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, for respondent.
   PER CURIAM.

This is a petition to review a decision of the Fifth District Court of Appeal reported as Amlotte v. State, 435 So.2d 249 (Fla. 5th DCA 1983), in which the district court held that “attempted” felony murder is a crime in Florida. The district court certified the following questions to be of great public importance:

a) DOES THERE EXIST UNDER FLORIDA LAW A CRIMINAL OFFENSE OF ATTEMPTED FELONY MURDER?
b) IF SO, WHAT ARE ITS ESSENTIAL CONSTITUENT ELEMENTS?

435 So.2d at 258. We have jurisdiction. Art. Y, § 3(b)(4), Fla. Const. We find that attempted felony murder is a crime in Florida and, therefore, we answer the first certified question in the affirmative. The essential elements of the crime are the perpetration of or the attempt to perpetrate an enumerated felony, together with an intentional overt act, or the aiding and abetting of such an act, which could, but does not, cause the death of another. We approve the decision of the district court.

The facts in the instant case reflect that the petitioner, Amlotte, went to a mobile home and asked to use the occupants’ telephone. After being allowed into the trailer to use the telephone, Amlotte went to the door of the home and jumped outside. When she did so, two men covered with white sheets and carrying guns appeared. The woman occupant of the home called out to her husband to shoot the men. The husband, who had loaded his gun when he became suspicious of Amlotte while she was using the telephone, fired at the men. The two men returned fire and then left with Amlotte.

Amlotte was charged, in a three-count information, with unlawfully entering or remaining in a structure with intent to commit an offense therein, shooting into an occupied dwelling, and attempted felony murder. With regard to the attempted felony murder count, the information charged that Amlotte did “unlawfully attempt to kill a human being ... by shooting in the direction of him, and said attempted killing was committed by ... [her] or a person acting in concert with her, while engaged in the perpetration, or in the attempt to perpetrate a burglary.” Amlotte was found guilty on each count and was sentenced to serve three concurrent seven and one-half year prison terms.

Petitioner appealed to the Fifth District Court of Appeal, contending that the crime of attempted felony murder does not exist in Florida. The district court, in an en banc decision, affirmed petitioner’s conviction for attempted felony murder. Relying on section 777.04(1), Florida Statutes (1981), which defines attempt, and on this Court’s decision in Fleming v. State, 374 So.2d 954 (Fla.1979), a majority of the district court held that “attempted first degree murder done in the felony murder mode is a crime.” 435 So.2d at 251.

We agree with the district court that the crime of attempted felony murder exists in this state. In Fleming v. State, we considered the validity of a guilty plea to attempted first-degree murder for the shooting of a police officer. The defendant in Fleming asserted that there was no factual basis for the plea because the officer was shot accidentally during a struggle for the defendant’s gun. We recognized that “[a]n ‘attempt’ consists of two essential elements: (1) a specific intent to commit the crime, and (2) a separate overt, ineffectual act done towards its commission.” 374 So.2d at 955 (citations omitted). We further noted that “[a]ny homicide committed during the perpetration or attempted perpetration of a felony constitutes first degree murder. State of mind is immaterial for the felony is said to supply the intent.” Id. at 956 n. 1 (emphasis added). Although “the offense of attempted first degree murder requires a premeditated design to effect death,” we concluded that “where the alleged ‘attempt’ occurs during the commission of a felony ... the law presumes the existence of premeditation, just as it does under the felony murder rule.” Id. at 956 (citations omitted). We find that whenever an individual perpetrates or attempts to perpetrate an enumerated felony, and during the commission of the felony the individual commits, aids, or abets a specific overt act which could, but does not, cause the death of another, that individual will have committed the crime of attempted felony murder. Because the attempt occurs during the commission of a felony, the law, as under the felony murder doctrine, presumes the existence of the specific intent required to prove attempt.

Our conclusion is consistent with the reasoning in our recent decision in Gentry v. State, 437 So.2d 1097, 1098-99 (Fla.1983), in which we held that “there are offenses that may be successfully prosecuted as an attempt without proof of a specific intent to commit the relevant completed offense.” We determined that “[i]f the state is not required to show specific intent to successfully prosecute the completed crime, it will not be required to show specific intent to successfully prosecute an attempt to commit that crime.” Id. at 1099.

The certified questions having been answered, we approve the decision of the district court.

It is so ordered.

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

OVERTON, J., dissents with an opinion in which McDONALD, J., concurs.

OVERTON, Justice,

dissenting.

I dissent. The majority opinion has made it impossible to distinguish those crimes for which there can be an attempt from those crimes for which there cannot be an attempt. A conviction for the offense of attempt has always required proof of the intent to commit the underlying crime. See Hutchinson v. State, 315 So.2d 546 (Fla. 2d DCA 1975); Robinson v. State, 263 So.2d 595 (Fla. 3d DCA 1972); Granean v. State, 201 So.2d 599 (Fla. 4th DCA), review denied, 207 So.2d 52 (Fla.1967). By recognizing the crime of attempt with regard to felony murder, a crime in which the intent to kill is presumed, the Court has created a crime which necessitates the finding of an intent to commit a crime which requires no proof of intent. As stated by Judge Cowart in his dissenting opinion to the district court decision, this holding creates a “crime requiring one to intend to do an unintended act which is a logical absurdity and certainly an inadequate conceptual basis for something that needs to be as clear and understandable as do the elements of a felony crime.” Amlotte v. State, 435 So.2d 249, 254 (Fla. 5th DCA 1983) (Cowart, J., dissenting). I substantially adopt the scholarly reasoning of Judge Cowart as set forth in his dissenting opinion.

The majority has arrived at an indefensible conclusion which gives Florida the dubious distinction of being one of the very few states to recognize such a crime. Of the states which have addressed this issue, most have rejected, as logically impossible, the crime of attempted felony murder, at least where the intent to kill is not proven. See Head v. State, 443 N.E.2d 44 (Ind.1982); People v. Harris, 72 Ill.2d 16, 17 Ill.Dec. 838, 377 N.E.2d 28 (1978); State v. Dahlstrom, 276 Minn. 301, 150 N.W.2d 53 (1967); People v. Hassin, 48 A.D.2d 705, 368 N.Y.S.2d 253 (App.Div.1975); Commonwealth v. Griffin, 310 Pa.Super. 39, 456 A.2d 171 (1983); cf People v. Collie, 30 Cal.3d 43, 634 P.2d 534, 177 Cal.Rptr. 458 (1981) (specific intent to kill is necessary element of attempted murder and it cannot be inferred from commission of dangerous crime); Hargrave v. Commonwealth, 214 Va. 436, 201 S.E.2d 597 (1974) (use of deadly weapon insufficient to prove specific intent to establish attempted murder). But see White v. State, 266 Ark. 499, 585 S.W.2d 952 (1979); cf. Garcia v. State, 541 S.W.2d 428 (Tex.Crim.App.1976) (jury may infer specific intent from use of a deadly weapon in an attempted murder trial). I find that this Court should reach the same conclusion.

In my view, the crime of felony murder is based upon a legal fiction which implies malice aforethought from the actor’s intent to commit the underlying felony. Thus, whenever a person is killed during the commission of a felony, the felon is said to have had the intent to bring about the death even if the killing was unintended. This doctrine has been extended to impute intent for deaths caused by the acts of co-felons, see, e.g., Mills v. State, 407 So.2d 218 (Fla. 3d DCA 1981), and police, see, e.g., State v. Wright, 379 So.2d 96 (Fla.1979), during the perpetration of certain felonies. Further extension of the felony murder doctrine so as to make intent irrelevant for purposes of the attempt crime is illogical and without basis in law.

I recognize that our recent decision in Gentry v. State, 437 So.2d 1097 (Fla.1983), gives support to the majority view. It is distinguishable from the instant case, however, because the completed crime in Gentry, which was second-degree murder, did not require proof of specific intent, as does first-degree murder.

I would recede from Fleming v. State, 374 So.2d 954 (Fla.1979), to the extent that it recognized the crime of attempted felony murder and would at least distinguish Gentry. The legal question of whether attempted felony murder existed in Florida was not a major issue in Fleming. The defendant in Fleming pleaded guilty to first-degree murder and attempted first-degree murder, and he was sentenced to death. The validity of the death sentence was the primary issue in that case before this Court. There was absolutely no discussion in this Court’s opinion of whether specific intent was an essential element of an attempt.

For the reasons expressed, I would quash the decision of the district court.

McDONALD, J., concurs.


text:
    FLORIDA POWER CORPORATION, Appellant, v. PUBLIC SERVICE COMMISSION, Appellee.
    No. 64209.
    Supreme Court of Florida.
    Sept. 6, 1984.
    Sylvia H. Walbolt and Gregory G. Jones of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, and R.W. Neiser and J.A. McGee, Office of the Gen. Counsel, Fla. Power Corp., St. Petersburg, for appellant.
    William S. Bilenky, Gen. Counsel and Michael B. Twomey, Staff Counsel, Florida Public Service Com’n, Tallahassee, for ap-pellee.
    Jack Shreve, Public Counsel and Stephen C. Burgess, Associate Public Counsel, Office of the Public Counsel, Tallahassee, for the Citizens of the State of Florida, appel-lee.
   PER CURIAM.

The Florida Power Corporation (FPC) appeals from an order of the Public Service Commission (PSC) regarding electric rates. We have jurisdiction. Art. V, § 3(b)(2), Fla. Const.

At issue is whether FPC should bear the cost of a delay in service due to a damaged fuel assembly caused by a dropped test weight. The incident involved herein was previously the subject of PSC order No. 9775, which this Court reversed in Florida Power Corp. v. Public Service Commission, 424 So.2d 745 (Fla.1982). We reversed order No. 9775 because the PSC based its assessment against FPC on documents of the Nuclear Regulatory Commission (NRC) and FPC’s nuclear general review committee (NGRC) that were released after the accident had occurred, and therefore based on hindsight, and employed a safety-related standard that involved “a very different risk and a much higher standard of care than were involved in this case.” Florida Power, 424 So.2d at 747. The term “safety-related” in this context means that the work so designated involves a risk that radioactive material may be released outside the plant. Id. Our review of the record indicated that the extended repair work involved at the time was not per se safety-related, and that fact in part accounted for not recognizing as safety-related the use of the test weight. In its previous order, the PSC found “evidence that policies, decisions, and procedures which were undisputedly the functions of management were lacking in this instance.” Id., quoting order No. 9775 at 5. When we reversed that order, we remanded to the PSC for reconsideration.

In its Order on Remand, No. 12240, the PSC asserts that “there is a basis, independent of the NRC and NGRC documents, for determining that the procedures governing the work activity involving the use of the test weight device were deficient, [and] that the planning and supervision of the project were inadequate_” Order No. 12240 at 1. The PSC found that “FPC’s failure to adequately plan and supervise the move of the test weight device was imprudent” based on a lack of various procedures which might have been employed. Order No. 12240 at 8. As primary evidence of the inadequacy of FPC’s procedures the PCS cites the statement of Mr. Beatty, the plant manager, that “[o]ur internal procedure was not adequate enough to preclude this happening because it did not require the testing of the hooks and it should have.” Order No. 12240 at 9. This statement cannot be used to support the PSC’s independent determination of mismanagement, as it was made in response to questions concerning the deficiencies in FPC’s safety-related procedure regarding the labeling of hooks that was the basis for the NRC’s notice of violation. The lack of procedures which might have prevented the accident, suggested by the PSC, amounts to an application of the 20-20 vision of hindsight. The PSC has not shown that FPC management acted unreasonably at the time. In short, the PSC’s findings are unsupported by competent substantial evidence.

Florida Power Corporation’s other point is mooted by our holding. Order No. 12240 is reversed and this cause is remanded for entry of an order consistent with this decision.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Judith Dale SHAPIRO, Respondent.
    No. 64439.
    Supreme Court of Florida.
    Sept. 6, 1984.

      John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee and David G. McGunegle, Bar Counsel, Orlando, for complainant.
    Edward R. Shohat of Bierman, Sonnett, Beiley, Shohat & Sale, Miami, for respondent.
   PER CURIAM.

We have for review a referee’s report recommending that Judith Dale Shapiro be suspended from the practice of law for ninety days to be followed by a two-year period of probation. Shapiro’s petition for review asks us to reject a condition of probation imposed by the referee. We have jurisdiction. Art. Y, § 15, Fla. Const.

The Florida Bar and Shapiro submitted a joint stipulation of facts so that the referee could dispose of this cause without formal proceedings. The stipulated facts established that Shapiro had represented a client on drug smuggling charges. During the course of her representation, she filed a sworn motion to dismiss the charges, which motion contained false statements and a forged client signature. The false statements led to a perjury charge which was dropped after the client obtained new counsel. Shapiro denied that she knew the sworn motion contained false statements or that she knew about the forged client signature. She agreed, however, that a sufficient factual basis existed for the referee to conclude she had violated Florida Bar Integration Rule, article XI, Rule 11.-02(3)(a) (conduct contrary to honesty, justice, or good morals) and Florida Bar Code of Professional Responsibility Disciplinary Rules 1-102(A)(4) (conduct involving dishonesty, fraud, deceit, or misrepresentation) and 1-102(A)(5) (conduct prejudicial to the administration of justice).

The referee found Shapiro guilty of violating the provisions set out above and recommended a ninety-day suspension and a two-year probation under the following conditions:

1. Respondent will confine her professional undertakings to civil, as opposed to criminal, matters.
2. Respondent [will] participate in the Guardian-ad-Litem program, of the Eleventh Judicial Circuit and expend 250 hours, in the two year period of probation, as an attorney Guardian-ad-Litem for an abused, neglected or otherwise dependent child. See Fla.R.Juv.P. 8.300(b), et seq.

Shapiro challenges only the propriety of the second condition of probation.

We agree with Shapiro that in this case that serving as a guardian ad litem is an inappropriate condition of probation. We therefore disapprove the referee’s recommendation that she be required to participate in the guardian ad litem program.

We detect, however, what appears to be a dangerous ignorance of both the contents and application of the Code of Professional Responsibility by Shapiro. If she intended to mislead the trial court by preparing a false sworn motion to dismiss criminal charges containing a forged client signature, as alleged in the Florida Bar complaint and the stipulated facts, she has violated both the spirit and letter of her oath of admission to the bar. We therefore require as an additional condition of probation that Shapiro again take, and successfully pass, the ethics portion of the Florida Bar examination within her probation period. We approve the remaining portions of the referee’s report.

Judith Dale Shapiro, therefore, is suspended for ninety days, beginning thirty days after the filing of this opinion in order that she may protect her clients. Thereafter, she will be on probation for two years, during which she must successfully sit for the ethics portion of the bar examination. Shapiro is further directed to pay costs of these proceedings in the amount of $925.23.

It is so ordered.

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

EHRLICH, J., dissents.


text:
    THE FLORIDA BAR, Complainant, v. Michael C. NORVELL, Respondent.
    No. 65149.
    Supreme Court of Florida.
    Sept. 6, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee; and David G. McGunegle, Bar Counsel, Orlando, for complainant.
    Michael C. Norvell, in pro. per.
   PER CURIAM.

Norvell, a member of The Florida Bar, has petitioned for leave to resign from the Bar without leave to apply for readmission for four years. He is currently in federal prison serving a five-year sentence for conspiracy to possess and distribute marijuana, and his license to practice law has been suspended by this Court. The Bar opposes the instant petition, contending that disbarment would be more appropriate.

We see no reason to prolong these proceedings. We do not find, however, that allowing a simple resignation will impress upon Norvell, the Bar, and the public the full extent of our distress and displeasure over his conduct. We therefore grant the petition only upon the condition that, prior to his reinstatement, Norvell establish his rehabilitation and successfully take the bar examination at the end of the four-year period. With these conditions Norvell’s resignation will be, in essence, a disbarment. If Norvell refuses to accept these conditions within sixty days from the filing of this opinion, his petition will be denied.

It is so ordered.

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

ALDERMAN, EHRLICH and SHAW, JJ., dissent.