author: ADKINS, Justice.

text:
    James Armando CARD, Sr., a/k/a James T. Conte, a/k/a Mike Johnson, Appellant, v. STATE of Florida, Appellee.
    No. 61715.
    Supreme Court of Florida.
    June 7, 1984.
    Rehearing Denied July 19, 1984.
    Certiorari Denied Nov. 5, 1984.
    See 105 S.Ct. 396.

      Steven L. Bolotin, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.
   ADKINS, Justice.

This case is before us on direct appeal from a conviction of first-degree murder, robbery and kidnapping and the sentence of death imposed on the appellant, James Card. The sentence by the trial judge followed a jury recommendation of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

We affirm both the conviction and sentence for the reasons expressed below.

On the afternoon of June 3, 1981, the Panama City Western Union office was robbed of approximately $1,100. Blood was found in the office and the clerk, Janis Franklin, was missing. The following day, Mrs. Franklin’s body was discovered beside a dirt road in a secluded area approximately eight miles from the Western Union office. Her blouse was torn, her fingers severely cut to the point of being almost severed and her throat had been cut.

As early as 6:30 on the morning of June 3, 1981, the appellant telephoned an acquaintance, Vicky Elrod, in Pensacola, Florida, and told her that he might be coming to see her to repay the $50 or $60 he owed her. At approximately 9:30 that night Vicky Elrod met with the appellant. He took out a stack of twenty and one-hundred dollar bills and she asked if he had robbed a 7-Eleven store. He told her that he had robbed a Western Union station and killed the lady who worked there. He described scuffling with the victim, tearing her blouse and cutting her with his knife. He said he then took her in his car to a wooded area and cut her throat saying, “Die, die, die.” Several days after their meeting, Vicky Elrod went to the police with this information. The appellant was then arrested.

CONVICTION

The appellant contends that he should receive a new trial because the trial court erred in excluding certain proffered testimony, thereby depriving him of his fundamental right, guaranteed by the sixth and fourteenth amendments to the United States Constitution and by article I, section 16 of the Florida Constitution, to present witnesses in his own behalf.

The proffer demonstrated that Camille Cardwell would have testified that two or three weeks before the robbery she overheard four individuals, one of whom was her boyfriend, John Green, discussing a robbery they were going to commit. Neither Camille Cardwell nor any of the four individuals she overheard were connected with the appellant, James Card. The following is the testimony proffered by the defense:

COURT: All right, gentlemen, the jury’s out. Mr. Green [defense counsel].
CAMILLE CARDWELL, having been duly sworn, testified as follows:
DIRECT EXAMINATION BY MR. GREEN:
Q. Would you state your name and address, please ma’am?
A. Camille Josephine Cardwell, PO Box 147, Lowell, Florida.
Q. Miss Cardwell, did you have occasion in the first part of June to speak to some law enforcement officers concerning the Western Union store robbery?
A. Yes, sir, I did.
Q. And to whom did you speak?
A. I believe the first name was Frank.
Q. And do you have any information regarding the Western Union store robbery?
A. Yes, sir.
Q. Will you tell the Court what information you do have?
HARRISON [prosecutor]: This is what I object to, because the only information she has she obtained through hearsay.
GREEN: Your Honor, this is a proffer, and I can tie it all in through the proffer, I believe.
COURT: No sense in getting any exercise. The jury’s not in here. Let’s hear what the girl has to say. We’ll then determine whether the jury hears it. All right, Camille, tell us what you know about the robbery.
A. I flew in from Kansas the first part of May to be with my boyfriend at the time, and him and a couple of his friends were — had come in from somewhere, and I was sitting around, and they were talking about pulling off a. robbery, and the only information that I really got as to what it might be was they they had said that they were going to rob a place where they would — people sent in money orders and stuff like that.
Q. Did they tell you they were going to rob the Western Union store?
A. Not in exact words. What they had said was that — Doc had some money coming in that his mother was wiring him.
COURT: Doc, Doc?
A. My boyfriend.
Q. What’s his real name?
A. John Green.
COURT: John Green?
A. Yes, sir.
COURT: Okay, go ahead.
A. And he had said that he had been down there earlier and that they had looked the place over and that it would be a perfect place.
Q. Did they speak — did they have— you heard this conversation before June 3rd when the Western Union was robbed, did you not?
A. Yes, sir.
Q. How long before it?
A. I’m really not for sure. I flew back to Kansas, it was either the 18th or 19th of May, so it was before that.
Q. So, was it about two or three weeks before June 3rd?
A. Yes, sir.
Q. Did they mention a time when they thought they might do the robbery?
A. They said they would like to get it before the banks closed and she made her deposits.
Q. Did they mention a specific time?
A. I believe they said anywhere from two to 3:30, somewhere along through there.
Q. Did they mention anything about using any type of weapons?
A. Doc had — John had mentioned using a knife — some of the knives that he had, scuba diving equipment, and he also had a shotgun.
Q. Did they tell you what type — or the knife, did you see any of their knives?
A. I’ve seen his knives before, yes, sir. I’ve done a lot of scuba diving with him.
Q. Who else was present when they were talking about that?
A. There was Tom Wilmot, Tom’s wife, and—
Q. What’s her name?
A. Breezy, and also another guy I don’t know. I’ve never seen him before.
Q. Did they mention what type of— can you tell me what kind of automobile they had?
A. John owned a, I believe it was a ’63 Chevrolet, and Tom owned a van.
Q. Did they say what they were going to do to the lady at the Western Union?
A. Well, from what I could pick up, they weren’t going to hurt her.
Q. And you reported this to the police about June 5th.
A. Somewhere along in there.
GREEN: That’s basically the proffer, Your Honor.
COURT: This is hearsay.

The appellant submits that the testimony was relevant because it “tends to prove that” someone other than the appellant may have committed the crime and because “[I]t casts doubt on the police officers’ testimony that they followed up all leads and ruled out all possible suspects but [the appellant].” He further argues that the testimony is not hearsay, but in the alternative, if it is, it should have been admitted under the hearsay exception which allows declarations against penal interest to be introduced in evidence. See § 90.804(2)(c), Fla.Stat. (1981).

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. § 90.801(l)(c), Fla.Stat. (1981). The appellant contends that Camille Cardwell’s testimony is not hearsay because the conversation she heard is not being offered to prove the truth of the matter asserted. It is, he contends, a verbal act, indicative of a specific criminal intent and it is highly relevant in that it tends to prove that Green and Wilmont, rather than the appellant, may have committed the crime.

We find this argument insupportable. The declarants are not defendants or victims nor are they connected with this case other than through the proffered testimony at issue. The only way any statements made by them could be relevant here would be if they were offered for the truth of the matter asserted. Only if the testimony were offered to prove that the declarants were actually planning a robbery of a Western Union office would it be relevant. The criminal intentions or states of mind alone of these declarants are irrelevant to this case. The statements were obviously offered as proof of the matter asserted and are, therefore, hearsay.

The appellant also contends that the testimony was admissible to impeach the credibility of the police investigations. We are unable to find merit in that contention. The investigators have not denied receiving the information from Camille Cardwell. The appellant has offered no plausible demonstration of a failure to investigate the crime.

In the alternative, the appellant argues that if the proffered testimony is hearsay, it should have been admitted as a declaration against penal interest. Section 90.804(2)(c), Florida Statutes (1981), requires that in order to utilize this exception to the hearsay rule, the appellant must demonstrate that the declarant is unavailable to testify as a witness. He has not done so in this case but contends that the testimony was admissible in spite of the unavailability requirement. He bases this on the due process principles set forth in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).

In Chambers, the Court held that “[U]nder the facts and circumstances of this case the rulings of the trial court deprived Chambers of a fair trial.” 410 U.S. at 303, 93 S.Ct. at 1050. In that case, the defendant was tried in Mississippi for the murder of a police officer. Another individual made three verbal confessions to this crime and one written confession which he later repudiated. The prosecution did not call this declarant as a witness so the defense did. At that time, under the “voucher” rule in Mississippi, one could not impeach one’s own witness. Therefore, the defense was not allowed to have the verbal confessions admitted into evidence for that purpose. In addition, the hearsay rule prevented the testimony from being heard and Mississippi had no exception to the rule based on declarations against penal interest. The Court said in that case:

The hearsay statements involved in this case were originally made and subsequently offered at trial under circumstances that provided considerable assurance of their reliability. First, each of [declarant’s] confessions was made spontaneously to a close acquaintance shortly after the murder had occurred. Second, each one was corroborated by some other evidence in the case....

Id. at 300, 93 S.Ct. at 1047. The Court further stated that it was establishing no new standards of constitutional law, nor was it diminishing the authority of the states over their own trial rules. Rather, under the specific facts of this case, where the rejected evidence bore persuasive assurances of trustworthiness, its rejection denied the defendant a trial in accordance with due process standards. Id. at 302, 93 S.Ct. at 1049.

We find no similarity between the instant case and Chambers. This case does not involve a confession to the specific crime but, rather, a discussion, prior to the crime, about committing a similar crime. There is no corroborating evidence and no assurances whatever of the reliability of the statement. Also, section 90.804(2)(c), Florida Statutes (1981), states:

A statement tending to expose the de-clarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement.

We find that the appellant was not denied a fair trial by exclusion of the hearsay evidence.

SENTENCE

The trial court made the following findings of fact as to the aggravating circumstances of the case:

1. The murder was committed while the Defendant was engaged in the commission of a kidnapping. (F.S. 921.-141(5)(d)). The murder was also committed while the Defendant was engaged in the commission of a robbery. The Defendant went to the Western Union on June 3, 1981 and kidnapped the victim, Janis Franklin, after robbing the business of approximately $1,197.00. The crime of kidnapping was accomplished when the victim was forced at knife-point to leave the premises of Western Union.
2. The murder was committed for the purpose of avoiding or preventing a lawful arrest. (F.S. 921.141(5)(e)). The dominant motive for the kidnapping and murder of Janis Franklin was the elimination of the only witness to the defendant’s crime. The evidence has established that Janis Franklin knew the defendant and would clearly have been able to identify him as the robber of the West- erp Union. For that reason she was driven to an isolated area and murdered.
3. The murder was committed for pecuniary gain. (F.S. 921.141(5)(f)). The Court is aware of the prohibition of considering both the robbery as an aggravating circumstance and whether the crime was committed for pecuniary gain as an aggravating circumstance. However, the aggravating circumstance of F.S. 921.141(5)(d), already discussed above, is considered applicable because the murder was committed during the course of a Kidnapping. Under the total circumstances the fact that a Robbery also occurred does not prevent the Court from considering the pecuniary gain aspect of the crime.
The fact that this crime was committed for pecuniary gain is without doubt. The defendant took $1,197.00 at knife-point.
4. The murder was especially heinous, atrocious or cruel. (F.S. 921.-141(5)(h)). The acts of this defendant and the obvious torture and suffering of the victim set this crime apart from the norm of capital felonies. This defendant entered the Western Union, a family business, in Panama City, Florida. He removed a knife from his pants and attacked the clerk, Janis Franklin. She made a valiant effort to fend off her attacker; and, as a result of his initial attack, Jams’ fingers on both hands were severely cut. Some fingers were almost completely severed from the hands. The Defendant ordered Janis out of the Western Union with that same knife to her back. In this severely injured condition she was taken on a death ride for approximately eight miles to an indistinct dirt road in an isolated, secluded area of Bay County. She was told to exit the vehicle and was promised she would not be harmed further. The Defendant then [exited] from the driver’s side, came around the vehicle and silently approached Janis from behind. He grabbed her by the hair of the head, pulled her head back, and slit her throat. He then stood over her watching her bleed and uttered his final words to her, “[D]ie, die, die.”
The evidence established that the wound was vicious, that it completely severed the windpipe and’the right side jugular vein, and that the defendant’s knife actually left its mark on the neck bone itself.
The suffering of Janis Franklin prior to her death can barely be comprehended by those of us [among] the living. Those minutes before her death, while she was nursing her almost severed fingers and while she was being driven to this isolated area, was a time of complete and total terror. Then, for a few seconds, Janis Franklin had that slight ray of hope when she was told she would not be harmed further, only to be grabbed from behind and to realize that her life was ended.
This Court can think of no crime more wicked or vile. The evidence is clear that this defendant committed this heinous and atrocious crime upon Janis Franklin with no feelings for her suffering and even with a degree of enjoyment in slashing her throat.
5.The murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. (F.S. 921.141(5)(i)). As early as 6:30 on the morning of June 3, 1981 the Defendant telephoned Vicky Elrod in Pensacola and related that he would repay her a sum of $50.00 or $60.00 that he owed her. His course for that fatal day was then [charted]. The evidence reflects that he was a regular customer of the Western Union, that he knew the location of the money and volume of business conducted there. He prepared for his crime by wearing surgical gloves and hiding his knife inside his pants. After completion of the Robbery he kidnapped the victim and murdered her, thus disposing of the only witness to his crime. He [proceeded] to dispose of the gloves, the knife, the victim’s wallet, and, at a later time, a silver coin, all of which could have connected him to the crime. The evidence established that he knew the tire tracks could connect him to the crime scene. He even attempted to get a witness to trade tires with him. There was much time for the Defendant to reflect on the seriousness of his acts, to plan his acts, and to realize the penalty for his acts. The evidence leaves no doubt that the crime was planned and premeditated and that the murder was carried out on a cold and calculated manner.

After considering all of the evidence in the case, the court found no mitigating circumstances.

Appellant contends that the trial court erred in finding the fifth aggravating circumstance (cold, calculated, and premeditated commission) because it was not proven beyond a reasonable doubt. Appellant also contends that the trial judge improperly gave double consideration to the aggravating circumstances concerning a killing “for the purpose of avoiding lawful arrest” and “for pecuniary gain”. Finally, appellant asserts that the trial judge failed to give proper weight to the evidence offered in mitigation. Appellant does not contest the first and fourth aggravating circumstances found.

It is a requirement that aggravating circumstances be proven beyond a reasonable doubt to be proper considerations in the sentencing decision. Williams v. State, 386 So.2d 538 (Fla.1980); Alford v. State, 307 So.2d 433 (Fla.1975), cert. denied, 428 U.S. 912, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976). The appellant asserts that because of the testimony of a clinical psychologist during the penalty phase in which the psychologist stated that he felt that Card evidenced a sociopathic personality, reacted impulsively and had little awareness of consequences, that it was not proven beyond a reasonable doubt that the murder was committed in a cold, calculated and premeditated manner.

We find no merit to the contention that the psychologist’s testimony precluded a finding beyond a reasonable doubt in this issue. It is the province of the court to determine the weight to be given to the testimony in the sentencing phase. Smith v. State, 407 So.2d 894 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2260, 72 L.Ed.2d 864 (1982). The judge took into account the psychologist’s testimony and the fact that the appellant has a sociopathic personality. He weighed this against the facts of the case and it is not within our province to reweigh the testimony now. After reviewing the facts of this case, we find that the circumstance of cold, calculated premeditation was properly applied.

In 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), the appellant alleged that every person convicted of premeditated murder will start the sentencing proceeding with one aggravating circumstance already established. This Court concluded that this would not be the case because the level of premeditation needed to convict in a first-degree murder trial does not necessarily rise to the level of premeditation in section 921.141(5)(i). In other words, the premeditation must rise to a level beyond that which is required for a first-degree murder conviction. See, e.g., 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) (victims were stripped, beaten and tortured over a period of hours before being killed); Middleton v. State, 426 So.2d 548 (Fla.1982), cert. denied, — U.S. -, 103 S.Ct. 3573, 77 L.Ed.2d 1413 (1983) (where defendant sat for hours holding a shotgun and thinking about killing the victim); Jent v. State (involving a lengthy series of events including beating, transporting, raping, and setting the still living victim on fire); 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) (victim was lured to murder site under false pretenses).

In the instant case, the appellant took the victim from the Western Union office, after having cut her fingers, transported her in his car to a secluded area eight miles away, had her get out of the car, and then cut her throat. The appellant had ample time during this series of events to reflect on his actions and their attendant consequences. We find that the facts of this case demonstrate the heightened level of premeditation required by Jent.

Next, the appellant contends that the trial judge improperly gave double consideration to the aggravating circumstances concerning killing “for the purpose of avoiding lawful arrest” and “for pecuniary gain”. We disagree with this argument.

It is clear from the record that avoidance of lawful arrest was an element involved in this murder. The appellant knew the victim and she could have identified him. In addition, the murder was the culmination of a series of interrelated events stemming from the act of taking money from the Western Union office. The trial judge was aware, as he states in his sentencing report, that it would be improper to find that the murder was committed in the course of a statutorily enumerated offense based on the robbery and that it was committed for pecuniary gain, • also based on the robbery. Menendez v. State, 419 So.2d 312 (Fla.1982); Clark v. State, 379 So.2d 97 (Fla.1980), cert. denied, 450 U.S. 936, 101 S.Ct. 1402, 67 L.Ed.2d 371 (1981). However, the trial court found that this murder was committed during a statutorily enumerated offense based on the kidnapping. We have held that when the murder is the ultimate result of a closely connected chain of events, which originated with a robbery, it is proper to find that the murder was committed for pecuniary gain and was committed in the course of a kidnapping. Stevens v. State, 419 So.2d 1058 (Fla.1982), cert. denied, — U.S.—, 103 S.Ct. 1236, 75 L.Ed.2d 469 (1983) (a convenience store robbery after which, the cashier was abducted, raped and murdered). We cannot say that because the murder was committed to avoid lawful arrest, it cannot also have been committed for pecuniary gain. Of course the trial court can apply more than one aggravating circumstance to the same murder.

The appellant’s final argument is that the trial judge failed to give proper weight to the psychologist’s testimony which was offered in mitigation. Though the appellant admits that the judge was not required to agree with the testimony that the appellant’s emotional or mental condition rose to the level required for the statutory mitigating circumstances, he contends that it was required that it be given some weight as nonstatutory mitigation. The trial judge stated the following in his sentencing report:

The Court has taken into account the testimony of Dr. Hord and finds that the defendant is apparently a sociopathic personality. It is contended that this testimony establishes that the defendant was under extreme mental or emotional disturbance at the time of the commission of the offense and that the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. The Court finds, however, that the testimony of Dr. Hord does not establish any particular mitigating circumstance. Even if the Court determined that each mitigating factor raised by the [djefendant had been established, that would not outweigh the overwhelming evidence of aggravating circumstances prevalent in the testimony.

We will not overturn the reasoned judgment of the trial judge. See Smith v. State.

We find that no issue raised warrants reversal of the trial court’s judgment. We hereby affirm the conviction and sentence.

It is so ordered.

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


source: Caselaw Access Project

author: PER CURIAM. BOYD, Justice,

license: Public Domain

text:
    THE FLORIDA BAR RE AMENDMENT TO BYLAWS OF INTEGRATION RULE (CERTIFICATION PLAN).
    No. 64831.
    Supreme Court of Florida.
    June 14, 1984.
    William O.E. Henry, President, Lakeland, Gerald R. Richman, President-elect, Miami, Joel H. Sharp, Jr., Chairman of Board of Certification Designation and Advertising, of Baker and Hostetler, Orlando, John F. Harkness, Jr., Executive Director, and Ray-ford H. Taylor, Director of Certification and Designation and Advertising, Tallahassee, for The Florida Bar, petitioner.
   PER CURIAM.

The Florida Bar Board of Governors has petitioned this Court to approve proposed amendments to the Florida Certification Plan, article XIX of the Florida Bar Integration Rule. The proposals include certain amendments to the existing standards for the board-certification of civil trial lawyers and tax lawyers. We approve these proposals, which are appended to this opinion.

The Florida Bar also seeks this Court’s approval of the inclusion of “marital and family law” as a designated specialty under the certification plan and has submitted proposed standards for the board-certification of marital and family lawyers. We approve marital and family law as a designated specialty under the certification plan. We also approve the proposed standards for certification of marital and family lawyers, with the exception of that part which defines “full-day trials” and “half-day trials” and sets forth the specific number of each of these types of trials which a lawyer must litigate to qualify for certification. An important attribute of a good lawyer is the ability to identify the real contested issues in a case. A good trial lawyer tries only those issues. An experienced lawyer ordinarily takes considerably less time to present a case to the trier of fact than an inexperienced lawyer takes. The proposed standards seem to place great emphasis on the amount of time spent in presenting contested issues. We believe this emphasis could encourage a lawyer to lengthen a case to assure that the trial of the case counts towards the attorney’s certification under this specialty. We note that the civil trial certification standards are not as specific as those proposed here for marital and family lawyers with regard to the experience in contested matters required for certification. We find that it is unnecessary to identify full-day and half-day trials and believe that the certification committee can determine, from a summary of the issues and the type of evidence presented in a case, whether the trial should qualify towards certification of the attorney under these standards. Subject to these modifications, the standards for certification of marital and family lawyers, which are appended to this opinion, are approved.

The proposed amendments to the certification plan, regarding the standards for civil trial and tax lawyers, and the new standards for certification of marital and family lawyers, as modified, shall become effective on July 1, 1984, at 12:01 a.m.

It is so ordered.

ALDERMAN, C.J., and ADKINS, OV-ERTON, McDonald, EHRLICH and SHAW, JJ., concur.

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

BOYD, Justice,

concurring in part and dissenting in part.

I concur in all aspects with the majority opinion approving modification of article XIX of the Integration Rule Bylaws except one.

Before becoming a judge a lawyer usually gains broad experience in handling litigation, both in his office and in the courtroom. Usually lawyers establish themselves as competent in many fields of the law before being elected or appointed to serve as judges. Frequently the first judicial offices which they hold are in the trial courts in which they observe the handling of cases by lawyers of all types of legal ability. Just as referees in sporting events must be experts in the rules of the game and standards of conduct, so must judges be experts in the rules of procedure and proper conduct for attorneys in litigation which they consider in court. Having observed judges at all levels in this State for many years, I am totally convinced that all judges, in both the trial and appellate courts, are well qualified to serve as trial lawyers in both civil and criminal cases due to the experiences they have gained both as lawyers and as judges.

I consider it totally illogical and improper for the rule to provide that young lawyers who have appeared in a limited number of trials can meet the “substantial involvement” requirement for certification as civil trial lawyers while denying such qualification to former appellate judges until such time as they again appear in court to handle trials the same as recently admitted attorneys. I would amend the rule to recognize the work experience of all judges as being the equivalent of the civil trial “substantial involvement” required by section 2(a) of the civil trial lawyer certification standards.

APPENDIX

Article XIX

FLORIDA CERTIFICATION PLAN

Section 1. ADMINISTRATION. The Board of Certification, Designation and Advertising (the “Board”) shall have the authority and responsibility to administer the program for regulation of certification including:

(a) Recommend to the Board of Governors areas in which certificates may be granted and provide procedures by which such areas may be determined, redefined or eliminated.

(b) Recommend to the Board of Governors minimum, reasonable and nondiscriminatory standards concerning education, experience, proficiency and other relevant matters for granting certificates in areas of certification.

(c) Provide procedures for the investigation and testing of the qualifications of applicants and certificate holders and to award certificates.

(d) Encourage law schools, the Continuing Legal Education Committee of The Florida Bar, local bar associations and other continuing legal education entities to develop and maintain a program of continuing legal education to meet the standards described by the plan.

(e) Cooperate with other agencies of The Florida Bar in establishing and enforcing standards of professional conduct necessary for the recognition and regulation of certification.

(f) Cooperate with the Standing Committee on Specialization of the American Bar Association and with the agencies in other states engaged in the regulation of legal specialization.

(g) Report as required, but at least annually, to the Board of Governors on the status and conditions of the plan.

(h) Determine standards, rules and regulations to implement this authority in accordance with the limitations of power of the Board of Governors and the minimum standards prescribed by the Supreme Court of Florida.

(i) Delegate to The Florida Bar staff any of the administrative responsibilities of the Board, providing the Board retains responsibility for staff decisions.

Section 2. CERTIFICATION COMMITTEES. For each certification area approved by the Supreme Court of Florida, a seven-member committee, bearing the name of the area, shall be appointed by the president of The Florida Bar, with the advice and consent of the Board of Governors. Members of each committee shall be members in good standing of The Florida Bar, shall have been admitted to The Florida Bar no less than 10 years and must meet such other requirements as may in the future be promulgated by the Board. The committee members shall hold office for three years and until their successors are appointed. The committee members shall be appointed to staggered terms of office, and the initial appointees shall serve as follows: two members shall serve until June 30 next following their appointment; two members shall serve until the second June 30 following their appointment; and three members shall serve until the third June 30 following their appointment. Initial committee appointees shall be eminent attorneys in such field and shall be granted certificates by reason of such appointment. Subsequent appointees must have received a certificate be certified in the area at the time of prior to appointment.

Section 3. JURISDICTION OF CERTIFICATION COMMITTEES. Each certification committee shall be responsible for:

(a) Proposing criteria for the issuance or renewal of a certificate, which may include:

(1) Experience;
(2) References:
(3) Continuing legal education;
(4) Examination, either oral or written or both; and
(5) Whether certificates may be issued without examination and on what basis.

(b) Reviewing applications for certificates.

(c) Reviewing and establishing testing procedures as may be deemed necessary for certification or recertification.

(d) Recommending to the Board certificates be issued to those individuals meeting both the minimum standards imposed by this plan and the particular standards for the area for which certification is sought. Section 4. LIMITATIONS ON THE POWERS OF THE BOARD OF GOVERNORS, THE BOARD OF CERTIFICATION, DESIGNATION AND ADVERTISING, AND THE CERTIFICATION COMMITTEES. The following limitations are established:

(a)No standard shall be approved which shall, in any way, limit the right of a certificate holder to practice law in all areas. Subject to Canon 6, any lawyer, alone or in association with any other lawyer, shall have the right to practice in all areas of law, even though he is certified in a particular area.

(b) No lawyer shall be required to be certified before he can practice law in any particular area. Subject to Canon 6, any lawyer, alone or in association with any other lawyer, shall have the right to practice in all areas of law, even though he is not certified in any particular area.

(c) All requirements for and all benefits to be derived from certification are individual and may not be fulfilled by or attributed to a law firm of which the certified lawyer may be a member.

(d) Participation in the plan shall be on a voluntary basis.

(e) The limit on the number of areas in which a lawyer may be certified shall be determined by such practical limits as are imposed by the requirements of “substantial involvement” and such other standards as may be established by the Board.

(f) No rules or standards shall be adopted in contravention of the Integration Rule, the Bylaws Under the Integration Rule, or the Code of Professional Responsibility.

Section 5. STANDARDS FOR CERTIFICATION.

(a) The minimum standards for certification are prescribed below. Each area of certification established under this article may contain higher or additional standards if approved by the Supreme Court of Florida.

(b) A member in good standing of The Florida Bar who is currently engaged in the full-time practice of law and who meets the requirements of an area’s standards may apply for certification, may be granted a — certificate in an area of certification. From the date the application is filed to the date the certificate is issued, the applicant must continue to practice law full-time and remain a member in good standing of The Florida Bar. The certificate shall be issued by the Board and shall state that the lawyer is a “Board Certified (area of certification) Lawyer.”

(c)Minimum requirements for qualifying for certification by examination are:

(1) A minimum of five years in the practice of law on a full-time basis. The “practice of law” means full-time legal work performed primarily for purposes of rendering legal advice or representation. Service as a judge of any court of record shall be deemed to constitute the practice of law. Employment by the government of the United States, any state (including subdivisions of the state such as counties or municipalities) or the District of Columbia, and employment by a public or private corporation or other business shall be deemed to constitute the practice of law if the individual was required as a condition of employment, to be a member of the Bar of any state or the District of Columbia.
(2) A satisfactory showing of substantial involvement in the particular area for which certification is sought during three of the last five years preceding the application for certification.
(3) A satisfactory showing of such continuing legal education in a particular field of law for which certification is sought as set by that area’s standards, but in no event less than the minimum required under the Florida Designation Plan.
(4) Passing a written and/or oral examination applied uniformly to all applicants to demonstrate sufficient knowledge, skills and proficiency in the area for which certification is sought and in the various areas relating to such field. The award of an LL.M. degree from an approved law school in the area for which certification is sought within eight years of application may substitute as the written examination required in this subsection if the area’s standards so provide.
(5) Current certification by an approved organization in the area for which certification is sought within five years of filing an application may^-at-the-option of-tho-eer-tification- committee, substitute as partial equivalent credit, including the written examination required in subsection (c)(4). Approval will be by the Board, following a positive or negative recommendation from the certification committee, with an appeal from-denial-to the Board.

(d) When certification without examination is available in an area, the minimum requirements for such certification are:

(1) A minimum of twenty years in the practice of law on a full-time basis.

(2) A satisfactory showing of competence and substantial involvement in the particular area for which certification is sought during five of the last ten years, including the year immediately preceding the application for certification. Substantial involvement in the practice of law for the one year immediately preceding the application may be waived for good cause shown.

(3) A satisfactory showing of such continuing legal education in a particular field of law for which certification is sought as set by that area’s standards, but in no event less than the minimum required under the Florida Designation Plan.

(4) Certification without examination may be granted only to individuals who apply within two years after the date on which the particular area is approved by the Supreme Court of Florida.

(e) Payment of any fees required by the plan.

Section 6. RECERTIFICATION.

(a) No certificate shall last for period longer than five years.

(b) The minimum standards for recertification are prescribed below. Each area of certification established under this article shall contain requirements and safeguards for the continued proficiency of any certificate holder. The following standards shall apply:

(1) A satisfactory showing of substantial involvement during each year of the period of certification in the particular area for which certification was granted.

(2) A satisfactory showing of such continuing legal education in the area for which certification is granted, but in no event less than the minimum required under the Florida Designation Plan.

(3) The payment of any fees prescribed by the plan.

(c)Any applicant for recertification who has either failed to meet the standards for recertification or has allowed the certificate to lapse, must meet all the requirements for initial certification as set out in Section & the area’s standards.

Section 7. REVOCATION OF CERTIFICATION.

(a) A certificate may be revoked by the Board if the program for certification in that area is terminated or it is determined after hearing on appropriate notice that:

(1) The certificate was issued to a lawyer who was not eligible to receive a certificate or who made any false representation or misstatement of material fact to the certification committee or the Board;

(2) The certificate holder failed to abide by all rules and regulations governing the program promulgated by the Board of Governors or the Board as amended from time to time, including any requirement or safeguard for continued proficiency;

(3) The certificate holder failed to pay any fee established by the plan;

(4) The certificate holder no longer meets the qualifications established by the plan or the Board.

(b) A certificate may be revoked by the Board of Governors by reason of disciplinary action taken pursuant to the Integration Rule, Bylaws under the Integration Rule, or the Code of Professional Responsibility of The Florida Bar.

Section 8. MANNER OF CERTIFICATION.

(a) A member having received a certificate in an area may list the area on his letterhead, business cards, office door, in the yellow pages of the telephone directory, in approved law lists and by such other means permitted by the Code of Professional Responsibility. The listing shall be made by stating “Board Certified (area of certification) Lawyer.”

(b) No law firm may list an area of certification for the firm, but membership in the firm does not impair an individual’s eligibility to list areas of certification in accordance with this article. Except for the firm listing in the telephone directory, a law firm may show next to the name of any firm members their certification area(s).

Section 9. RIGHT OF APPEAL.

A lawyer who is refused certification, re-certification, or whose certificate is revoked by the Board, or any person who is aggrieved by a ruling or determination of the Board shall have the right to appeal the ruling to the Board- of Governors under such rules and regulations as it may prescribe. Exhaustion of this right of appeal shall be a condition precedent to judicial review by the Supreme Court of Florida.

Section 10. FEES.

The fees for the operation of this plan are:

(a) Filing fee. $150. This is for the filing and review of an individual’s certification application. This fee is not refundable regardless of the disposition of the individual’s application.

(b) Examination/Certification fee. $150. This fee must be paid before the taking of the examination for certification or before an applicant who otherwise qualifies receives his certificate. This fee is not refundable regardless of the results of the applicant’s test.

(c) Annual fee. $50. This fee is assessed against each plan participant, at the time that participant-files a list- of the approved continuing — legal—education—accumulated during the preceding year.

(d) Course approval fee. $125. This fee is assessed against sponsors who want their course approved under the Plan.

(e) Individual credit approval. $5. This fee is assessed against applicants or Plan participants to cover administrative costs of processing a credit request where a sponsor refuses to cooperate with approval under the Plan.

Section 11. PUBLIC NOTICE.

(a) The Florida Bar may cause a public notice to be promulgated where and when it deems necessary, including for example, telephone directories, in substantially the following form:

‘NOTICE FOR THE GENERAL INFORMATION OF THE PUBLIC ATTORNEYS-MA¥ — LIST—THEIR—AREAS OF PRACTICE-I-N- THE YELLOW PAGES WITHOUT-MEETING ANY SPECIFIC-GRI-T-ERIA. “DESIGNATED-ATTORNEYS” HAVE MET MINIMUM EXPERIENCE - -AND -EDUCATIONAL REQUIREMENTS UNDER THE FLORIDA DESIGNATION PLAN.-ATTORNEYS ■INDI-CAT-I-NG THEY ARE — BOARD- CERTIFIED ”■ HAVE BEEN-IDENTIFIED BY THE FLORIDA BAR AS HAVING MET RIGOROUS REQUIREMENTS OF EXPERIENCE-A-ND EDUCATION- IN THOSE AREAS.

ATTORNEYS INDICATING THEY ARE “BOARD CERTIFIED” HAVE BEEN IDENTIFIED BY THE FLORIDA BAR AS HAVING SPECIAL KNOWLEDGE, SKILLS AND PROFICIENCY IN THEIR AREA OF PRACTICE. “FLORIDA BAR DESIGNATED” ATTORNEYS HAVE MET MINIMUM EXPERIENCE AND EDUCATIONAL REQUIREMENTS UNDER THE FLORIDA DESIGNATION PLAN. “FLORIDA BAR MEMBERS” MAY LIST THEIR AREAS OF PRACTICE IN THE YELLOW PAGES WITHOUT MEETING ANY SPECIFIC CRITERIA.

ALL PERSONS ARE URGED TO MAKE THEIR OWN INDEPENDENT INVESTIGATION AND EVALUATION OF ANY ATTORNEY BEING CONSIDERED. This notice published by The Florida Bar, telephone A.C. 904/222-5286, Tallahassee, Florida 32301-8226.

(b) The Florida Bar shall assume no liability to any persons whomsoever by reason of the adoption and implementation of the plan.

Section 12. CONFIDENTIALITY. All matters including but not limited to applications, references, tests and test scores, files, reports, investigations, hearings, findings, and recommendations shall be confidential so far as consistent with the effective administration of this plan, fairness to the applicant, and due process of law.

STANDARDS FOR CERTIFICATION OF A BOARD CERTIFIED CIVIL TRIAL LAWYER

Lawyers who are members in good standing of The Florida Bar and who meet the standards prescribed below may be issued an appropriate certificate identifying the lawyer as a Board Certified Civil Trial Lawyer. The purpose of the standards is to identify those lawyers who practice civil trial law and have the special knowledge, skills, and proficiency to be properly identified to the public as certified civil trial lawyers.

Section 1. DEFINITIONS.

(a) “Civil trial law” is the practice of law dealing with litigation of civil controversies in all areas of substantive law before state courts, federal courts, administrative agencies and arbitrators. In addition to actual pretrial and trial process, “civil trial law” includes evaluating, handling, and resolving civil controversies prior to the initiation of suit.

(b) The “practice of law” for this area is defined as set out at Section 5(c)(1) of Article XIX of the Integration Rule Bylaws governing the Florida Certification Plan. Practice of law which otherwise satisfies these requirements but which is on a part-time basis will satisfy the requirement if the balance of the applicant’s activity is work such as law teaching or legal editorial duty-which-is-legal-in-nature although not the practice of law. spent as a teacher of civil trial subjects in an accredited law school.

Section 2. MINIMUM STANDARDS.

(a)Substantial Involvement. To become certified as a civil trial lawyer, a lawyer must demonstrate substantial involvement in civil trial law. Substantial involvement shall include:

(1) At least five years of actual practice of law of which at least thirty percent has been spent in active participation in civil trial law. At least three years of this practice shall be immediately preceding application or, during those three years, the applicant may have served as a judge of a court of general civil jurisdiction adjudicating civil trial matters, or as a teacher-of-civil — trial subjects in an accredited law school.
(2) The trial of a minimum of fifteen contested civil cases in courts of general jurisdiction (excluding dissolution of marriage cases) during his practice. Of these fifteen cases several shall have been jury cases, several shall have been conducted by the applicant as lead counsel and several shall have been submitted to the trier of fact. At least five of the fifteen cases, including some jury cases, and some cases conducted by the applicant as lead counsel shall have been tried during the three years immediately preceding application. If the applicant does not meet these criteria, as contained in the immediately preceding sentence, the Civil Trial Certification Committee may review the applicant’s trial experience to determine if the applicant has demonstrated special competence as a civil trial lawyer. In all events, in the three years immediately preceding application, the applicant must have conducted at least three trials, including at least one jury trial and one trial as lead counsel. On good cause shown, for satisfaction in part of the requirement of the fifteen contested civil cases the Civil Trial Certification Committee may consider involvement in protracted litigation.
(3) Within three years immediately preceding application the applicant shall have substantial involvement in contested civil matters sufficient to demonstrate special competence as a civil trial lawyer. Substantial involvement includes investigation, evaluation, pleading, discovery, taking of testimony, presentation of evidence and argument of a jury or nonjury cases. For good cause shown, the Civil Trial Certification Committee may waive two of the three years substantial involvement for individuals who have served as judges of courts of general jurisdiction adjudicating civil trial matters. In no event may the year immediately preceding application be waived.

(b) References. The applicant shall select and submit names and addresses of six lawyers, not associates or partners, as references to attest to the applicant’s involvement in civil trial practice. Such lawyers themselves shall be substantially involved in civil trial law and shall be familiar with the applicant’s practice. No less than one shall be a judge of a court of general jurisdiction in the State of Florida before whom the applicant has appeared as an advocate in the two years immediately preceding the application. In addition, the Civil Trial Certification Committee may, at its option, send reference forms to other attorneys and judges. For good cause shown, one of these references listed may be waived by ■the-Civil-Trial ■ Certification Committee, but in no event more than one.

(c) Education. The applicant shall make a satisfactory showing that within the five three years immediately preceding application he has minimum approved postgraduate educational experience in the broad field of civil trial law. Such experience shall be at programs approved by The Florida Bar and may include such activity as:

(1) Teaching a course in civil trial law;
(2) Completion of a course in civil trial law;
(3) Participation as a panelist or speaker in a symposium or similar program in civil trial law;
(4) Attendance at a lecture series or similar program concerning civil trial law, sponsored by a qualified educational institution or Bar group;
(5) Authorship of a book or article on civil trial law, published in a professional publication or journal;
(6) Such other educational experience as the Civil Trial Certification Committee shall approve.

PROVIDED HOWEVER, for applications filed in.-the years 1981-and 1982 there shall be a minimum of-30 hours, For applications filed in the year 1983 there shall be a minimum of 40 hours. For applications filed in the year 1984 and thereafter there shall be a minimum of 50 hours.

(d) Examination. The applicant must pass an a written examination applied uniformly to all applicants, to demonstrate sufficient knowledge, proficiency and experience in civil trial law to justify the representation of special competence to the legal profession and to the public.

Section 3. RECERTIFICATION. Re-certification shall be under the following standards:

(a)(1) The applicant must show that during-the certification period he has met the substantial involvement criteria set forth-in-Section 2(a)(1) and (2). Continuous and substantial involvement in the practice of law, of which thirty percent has been spent in active participation in civil trial law throughout the period since the last date of certification. The demonstration of substantial involvement shall be made in accordance with the standards set forth in Section 2(a)(3).
(b) The trial of a minimum of three contested civil cases in courts of general jurisdiction (excluding dissolution of marriage cases) during the period since the last date of certification. Of these three cases at least one shall have been a jury case and at least two shall have been conducted by the applicant as lead counsel. On good cause shown, for satisfaction in part of the requirement of the three contested civil cases the Civil Trial Certification Committee may consider involvement in protracted litigation.
(c)(2) The applicant must submit references for knowledge and experience in accordance with Section 2(b). The references submitted must be able to attest to the applicant’s practice and involvement in civil trial practice throughout the period since the last date of certification.
(d)(3) For each year of-certification the applicant--must show a minimum of 10 hours of approved educational exper-i-eae&r The applicant must demonstrate he has completed at least 50 hours of approved continuing legal education since the last date of certification. This requirement shall be satisfied by the applicant’s participation in postgraduate education approved by The Florida Bar pursuant to in--accordance -with the provisions of Section 2(c)(l)-(6).
(e)(4) On special application, for good cause shown, the Civil Trial Certification Committee may waive compliance with the substantial involvement criteria provided all other requirements of this Section 2 have been complied with.

STANDARDS FOR CERTIFICATION OF A BOARD CERTIFIED TAX LAWYER

Lawyers who are members in good standing of The Florida Bar and who meet the standards prescribed below may be issued an appropriate certificate identifying the lawyer as a Board Certified Tax Lawyer. The purpose of the standards is to identify those lawyers who practice in the area of taxation and have the special knowledge, skills, and proficiency to be properly identified to the public as certified tax lawyers.

Section 1. DEFINITIONS.

(a) “Tax law” means legal issues involving federal, state or local income, estate, gift, ad valorem, excise or other taxes.

(b) The “practice of law” for this area is defined as set out at Section 5(c)(1) of Article XIX of the Integration Rule Bylaws governing the Florida Certification Plan. Notwithstanding anything in the definition to the contrary, legal work done primarily for the purpose other than legal advice or representation (including, but not limited to, work related to the sale of insurance or retirement plan or work in connection with the practice of a profession other than the law) shall not be treated as the practice of law. However, time devoted to obtaining an-LL.M. in taxation from an approved-law school-shall be considered as the practice of

Section 2. MINIMUM STANDARDS.

(a) Minimum Period of Practice. Every applicant shall have been engaged in the practice of law in the United States, or engaged in the practice of United States law while in a foreign country, and shall have been a member in good standing of the Bar of any state of the United States or the District of Columbia for a period of five years as of the date of application.

(1) The years of practice of law need not be consecutive.
(2) Notwithstanding the definition of “practice of law” in Section 1(b), receipt of an LL.M. degree in Taxation (or such other related fields approved by the Board and Tax Certification Committee) from an approved law school may substitute for one-year-of experience shall be deemed to constitute one year of the practice of law for purposes to meet of the five-year practice requirement (but not the five-year bar membership requirement) under this section. Provided, however, an applicant may not receive credit for more than one year of practice for any twelve month period under this section; accordingly, for example, an applicant who, while being engaged in the practice of law, receives an LL.M. degree by attending night classes, would not receive credit for the practice of law requirement by virtue of his having received the LL.M. degree.

(b) Substantial Involvement. Every applicant must demonstrate substantial involvement in the practice of tax law during the three years immediately preceding the date of application. Upon an applicant’s request and the recommendation of the Tax Certification Committee, the Board may waive the requirement that the three years be “immediately preceding” the date of application if the Board determines the waiver is warranted by special and compelling circumstances. Substantial involvement means the applicant has devoted forty percent or more of his practice to matters in which issues of tax law are significant factors and in which he had substantial and direct participation in those tax issues. An applicant must furnish information concerning the frequency of his work and the nature of the issues involved. For the purposes of this section the “practice of law” shall be as defined in Section 1(b) except that it shall also include time devoted to lecturing and/or authoring books or articles on tax law if the applicant was engaged in the practice of law during such period. Demonstration of compliance with this requirement shall be made initially through a form of questionnaire approved by the Tax Certification Committee but written or oral supplementation may be required.

(c) References for Knowledge and Experience. Every applicant shall submit the names and addresses of five other attorneys who are familiar with his practice, not including attorneys who currently practice in the applicant’s law firm, who can attest to the applicant’s reputation for involvement in the field of tax law. The Board and the Tax Certification Committee may authorize references from persons other than attorneys in such cases as they deem appropriate. The Board and the Tax Certification Committee may also make such additional inquiries as they deem appropriate.

(d) Education. Every applicant must demonstrate that during the three-year period immediately preceding the date of his application, he has met the continuing legal education requirements in tax law as follows. During the first three years after the plan’s implementation, the required number of hours of continuing legal education shall be sixty hours which shall have been attained during the three-year period preceding the date of application. Thereafter, the required number of hours shall be established by the Board but shall in no event be less than ninety hours. Credit for attendance at continuing legal education seminars shall only be given for programs which are directly related to tax law. However, during the first three two years of the plan any courses approved for full or partial credit in taxation or estate planning and administration (but-only to the extent of the tax aspects of estate planning and administration) under The Florida Bar Designation Plan shall be given equal credit for the purposes of the education requirement under this section. The education requirement may be satisfied by one or more of the following:

(1) Attendance at continuing legal education seminars meeting the requirements set forth above;
(2) Lecturing at, and/or serving on the steering committee of, such continuing legal education seminars;
(3) Authoring articles or books published in professional periodicals or other professional publications;
(4) Teaching courses in “tax law” at an approved law school or other graduate level program presented by a recognized professional education association;
(5) Completing such home study programs as may be approved by the Board and the Tax Certification Committee, subject to the limitation that no more than fifty percent (50%) of the required number of hours of education may be satisfied through home study programs; and
(6) Such other methods as may be approved by the Board and the Tax Certification Committee.

The Board and the Tax Certification Committee shall, by rule or regulation, establish standards applicable to (1) through (6) above, including, but not limited to, the method of establishment of the number of hours allocable to any of the above-listed categories. Such rules or regulations shall provide that hours shall be allocable to each separate but substantially different lecture, article or other activity described in subsections (2), (3) and (4) above.

(e) Examination. Every applicant must pass a written examination designed to demonstrate sufficient knowledge, skills, and proficiency in' the field of tax law. Any~applicant who has received an LL.M. in taxation or other approved field-fr-om an approved law school within eight years of-the date of-application- shall- be-exempt from the written examination requirements under this section.

Section 3. SPECIAL-CERTIFICATION

As a substitute for-meeting the certification requirements sebT-orth in Section 2, an attorney may- be certified in — tax-law-if-within eighteen months- after the plan is officially implemented, he files an-application and-meets the following requirements.

(1) A minimum of twenty-years of the

(2) A satisfactory showing, as determined by the Board and the Tax Certification Committee, of substantial involvement in the field of tax law for seven of the ten years preceding the-date-of application and for the twelve-month period immediately preceding such date. — The Board and the Tax Certification-Committee may waive the twelve-month-requirement-upon request of an applicant if they determine that a waiver is warranted by special — and compelling circumstances. An applicant must demonstrate substantial involvement in-accordance-with the criteria set forth--in-§ection-2(-b)-

(3) Demonstration -that the applicant has had not less than sixty hours of continuing legal education, determined in accordance- with the standards established under Section 2(d), during the three years immediately preceding the date of application?

(4) Submittal to — the—Board—of the names and-addresses of five other attorneys who are familiar with his practice, not including attorneys who currently practice in-the-applicant’s law-firm, who can attest-to the applicant’s-reputatien for involvement in the field of-tax law-The Board and the- Tax Certification Committee — may—authorize—references from — persons other — than attorneys in such cases as they — deem appropriate? -The Board and the- Tax Certification Committee-may-also make such additional inquiries as they-deem appropriate?

Section 3 4 RECERTIFICATION. To be eligible for recertification, an applicant must meet the following requirements:

(1) A satisfactory showing, as determined by the Board and the Tax Certification Committee, of continuous and substantial involvement in the field of tax law throughout the period since the last date of certification. The demonstration of substantial involvement shall be made in accordance with the standards set forth in Section 2(b), except that the Board and the Tax Certification Committee may accept an affidavit from the applicant attesting to his compliance with the substantial involvement requirement.
(2) Demonstration that he has completed at least 150 hours of continuing legal education since the last date of certification (or recertification). The continuing legal education must logically be expected to enhance the proficiency of attorneys who are Board Certified Tax Lawyers. If the applicant has not attained 150 hours of continuing legal education, but has attained more than sixty hours during such period, successful passage of the written examination given by the Board to new applicants shall satisfy the continuing legal education requirements.
(3) Completion of the reference requirements set forth in Section 2(c).
(4) If, after reviewing the material submitted by an applicant for recertification, the Board and the Tax Certification Committee determine that the applicant may not meet the standards in tax law established under this article, the Board and the Tax Certification Committee may require, as a condition of recertification, that the applicant pass the written examination given by the Board to new applicants.

STANDARDS FOR CERTIFICATION OF A BOARD CERTIFIED MARITAL AND FAMILY LAWYER

Lawyers who are members in good standing of The Florida Bar and who meet the standards prescribed below may be issued an appropriate certificate identifying the lawyer as a Board Certified Marital and Family Lawyer. The purpose of the standards is to identify those lawyers who practice marital and family law and have the special knowledge, skills, and proficiency to be properly identified to the public as certified marital and family lawyers.

SECTION 1 — DEFINITIONS

(a) “Marital and Family Law” is the practice of law dealing with legal problems arising from the family relationship of husband and wife and parent and child, including litigation of civil controversies arising from those relationships. In addition to actual pretrial and trial process, “marital and family law” includes evaluating, handling and resolving such controversies pri- or to the institution of suit and post judgment proceedings.

(b) The “practice of law” for this area is defined as set out at Section 5(c)(1) of Article XIX of the Integration Rule Bylaws governing the Florida Certification Plan. Practice of law which otherwise satisfies these requirements but which is on a part-time basis will satisfy the requirement if the balance of the applicant’s activity is spent as a teacher of family law subjects in an accredited law school.

SECTION 2 — MINIMUM STANDARDS

(a) Substantial Involvement. To become certified as a marital and family lawyer, an applicant must demonstrate substantial involvement in marital and family law. Substantial involvement shall include:

(1) At least five years of actual practice of law of which at least thirty percent has been spent in active participation in marital and family law. These five years of practice shall be immediately preceding application.

(2) The trial of a minimum of twenty-five contested marital and family law cases in circuit courts during the five years immediately preceding application. All such cases must have involved substantial legal or factual issues other than the dissolution of marriage. In each of these twenty-five cases the applicant shall have been responsible for all or a majority of the presentation of evidence and representation of the client. At least ten of the twenty-five cases must have been submitted to the trier of fact for resolution of one or more contested issues. On good cause shown, for satisfaction in part of the requirement of the twenty-five contested marital and family law cases, the Marital' and Family Law Certification Committee may consider involvement in protracted litigation.

(3)Within three years immediately preceding application the applicant shall have substantial involvement in contested marital and family law cases sufficient to demonstrate special competence as a marital and family lawyer. Substantial involvement includes active participation in client interviewing, counseling and investigating, preparation of pleadings, participation in discovery, taking of testimony, presentation of evidence, negotiation of settlement, drafting and preparation of marital settlement agreements, and argument and trial of marital and family law cases. Substantial involvement also includes active participation in the appeal of marital and family law cases.

(b) References. The applicant shall select and submit names and addresses of six lawyers, not associates or partners, as references to attest to the applicant’s involvement in marital and family law. Such lawyers themselves shall be substantially involved in marital and family law and shall be familiar with the applicant’s practice. No less than two shall be judges of circuit courts in the State of Florida before whom the applicant has appeared as an advocate in a trial of a marital and family law case in the two years immediately preceding the application. In addition, the Marital and Family Law Certification Committee may, at its option, send reference forms to other attorneys and judges, and make such other investigation as necessary.

(c) Education. The applicant shall make a satisfactory showing that within the three years immediately preceding application he has minimum approved postgraduate educational experience in the field of marital and family law. Such experience shall be at programs approved by The Florida Bar and may include such activity as:

(1) Teaching a course in marital and family law;

(2) Completion of a course in marital and family law;

(3) Participation as a panelist or speaker in a symposium or similar program in marital and family law;

(4) Attendance at a lecture series or similar program concerning marital and family law, sponsored by a qualified educational institution or Bar group;

(5) Authorship of a book or article on marital and family law, published in a professional publication or journal;

(6) Such other educational experience as the Marital and Family Law Certification Committee shall approve.

For applications filed in 1984 there shall be a minimum of 40 hours. For applications filed in the year 1985 and thereafter there shall be a minimum of 50 hours.

(d)Examination. The applicant must pass an examination applied uniformly to all applicants, to demonstrate sufficient knowledge, proficiency and experience in marital and family law to justify representation of special competence to the legal profession and to the public.

SECTION 3 — CIRCUIT JUDGES

An applicant who has served as a circuit judge within the five years immediately preceding application may be eligible for certification if he:

(a) Devoted at least thirty percent of his practice or judicial labor to adjudicating marital and family law cases during the five years immediately preceding application.

(b) Either presided over as a judge or handled as an advocate the trial of a minimum of twenty-five contested marital and family law cases in circuit courts during the five years immediately preceding application. All such cases must have involved substantial legal or factual issues other than the dissolution of marriage. At least ten of such cases must have been submitted to the trier of fact for resolution of one or more contested issues. If the applicant handled the cases as an advocate, he must have been responsible for all or a majority of the presentation of evidence and representation of the client.

(c) Meets the requirements of Section 2(a)(3) during the year immediately preceding application.

(d) Submits the references required by Section 2(b).

(e) Has accumulated the minimum approved postgraduate education in the field of marital and family law as required by Section 2(c).

(f) Successfully passes the examination required by Section 2(d).

SECTION 4 — RECERTIFICATION

To be eligible for recertification, an applicant must meet the following requirements:

(a) Continuous and substantial involvement in the field of marital and family law throughout the period since the last date of certification. The demonstration of substantial involvement shall be made in accordance with the standards set forth in Section 2(a)(1) and (3) and Section 3(a).

(b) Either presided over as a judge or handled as an advocate since certification or the last recertification a minimum of fifteen contested marital and family law cases in circuit courts. All such cases must have involved substantial legal or factual issues other than the dissolution of marriage. At least five of such cases must have been submitted to the trier of fact for resolution of one or more contested issues. If the applicant handled the cases as an advocate, he must have been responsible for all or a majority of the presentation of the evidence and representation of the client. On good cause shown, for satisfaction in part of the fifteen contested marital and family law cases, the Marital and Family Law Certification Committee may consider involvement in protracted litigation.

(c) Completion of at least 75 hours of continuing legal education since the last date of certification (or recertification). The continuing legal education must logically be expected to enhance the proficiency of attorneys who are Board Certified Marital and Family Lawyers. If the applicant has not attained 75 hours of continuing legal education, but has attained more than fifty hours during such period, successful passage of the examination given to new applicants shall satisfy the continuing legal education requirements.

(d)Completion of the reference requirements set forth in Section 2(b).


author: PER CURIAM.

text:
    THE FLORIDA BAR RE AMENDMENT TO ARTICLE XI, FLORIDA BAR INTEGRATION RULE (RULES OF DISCIPLINE).
    No. 64520.
    Supreme Court of Florida.
    June 28, 1984.
    William O.E. Henry, President, Lakeland, Gerald F. Richman, President-elect, Miami, John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Joseph J. Reiter, West Palm Beach, for The Bd. of Governors of The Florida Bar, petitioner.
   PER CURIAM.

The board of governors of The Florida Bar has proposed amendments to Florida Bar Integration Rule, article XI, rules 11.-03, 11.04, 11.05, 11.09, and 11.13, regarding the rules of discipline. We approve the proposed amendments with the exception of the amendments to rule 11.09 and rule 11.13(6)(c). We therefore adopt the proposed amendments to rules 11.03(1), 11.-04(3)-{7)» 11-05, and 11.13(6)(a) and (b), as set out following this opinion. The amendments will be effective 12:01 a.m., July 1, 1984.

It is so ordered.

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

RULE 11.03 DISCIPLINARY AGENCIES

(1) The Board of Governors of The Florida Bar. The Board of Governors of The Florida Bar is assigned the responsibility of maintaining the high ethical standards among all its-members the members of The Florida Bar. The Board of Governors of The Florida Bar shall supervise and conduct disciplinary proceedings in accordance with the provisions of these rules and bylaws of The Florida Bar not inconsistent with these rules.

(a) Designated reviewer. The designated reviewer is a member of the Board of Governors responsible for review and other specific duties as assigned by the Board of Governors with respect to a particular grievance committee.

(b) (a) Executive committee. All acts and discretion required by the Board of Governors under these rules of discipline may be exercised by its executive committee between meetings of the Board of Governors as may from time to time be authorized by standing Board of Governors’ policies.

(c) (b) Executive director. All matters to be filed with or served upon the Board of Governors shall be addressed to the Board of Governors and filed with the executive director. The executive director shall be the custodian of the official records of The Florida Bar.

RULE 11.04: GRIEVANCE COMMITTEE FUNCTION AND PROCEDURE

(3) The accused. The accused attorney may be required to testify and to produce evidence as any other witness unless he claims a privilege or right properly available to him under applicable federal or state law, and when so required he may be accompanied by counsel. Before any finding of probable cause or private reprimand is made, the accused shall be advised in general terms of the nature of the conduct which is being investigated, and he shall be given an opportunity to make a statement personally or by counsel, verbally or in writing, sworn or unsworn, explaining, refuting or admitting the alleged misconduct. Unless found-to be impractical by the chairman of- the grievance committee-due to unreasonable delay or other good-cause, T he accused shall be granted the right to be present at any grievance committee hearing when evidence is to be presented to the committee, to face his accuser, and to call witnesses, present evidence, and to cross-examine, subject to reasonable limitation.

(4) (5) Complainant or complaining witness. The complainant or complaining witness is not a party to the disciplinary proceeding. The complainant may be present at any grievance committee hearing when evidence is to be presented, subject to reasonable limitations, and shall have-no right to4>e present during-^ the-grievance committee-proceedings except when called to give evidence and-when so called may be accompanied by counsel. — Neither the complainant nor his counsel shall have the right of confrontation - or cross-examination of the accused or any other-witnessr Neither unwillingness nor neglect of the complaining witness to cooperate, nor settlement, compromise, nor restitution will excuse the completion of an investigation. The complaining witness shall have no right of appeal.

(5) (4) Testimony of witnesses; contempt. Unless he claims a privilege or right properly available to him under applicable law, the accused attorney or any other person who is subpoenaed to appear and give testimony or produce books, papers, or documents, and who refuses to appear or produce such books, papers, or documents, or who, having been duly sworn to testify, refuses to answer any proper question, may be.cited for contempt of this court. Any contempt proceedings instituted or prosecuted during the progress of an investigation or trial covered by the confidential rule shall be conducted in a manner consistent with such rule and shall not be made public except under conditions prescribed in such rule.

(6) Record and report of grievance committee.

(a) No finding of probable cause. If a grievance committee, upon termination of its investigation, does not find probable cause, the committee shall dispose of its files in the manner directed by the Board of Governors. If the grievance committee has notified the accused of the investigation, then the committee shall notify the accused of the action of the committee. The failure of a grievance committee to find probable cause shall not preclude further proceedings. A committee may admonish an accused attorney to improve a particular aspect of his practice even though no ethical violation has been found. An' admonishment does not constitute a disciplinary record against an attorney and is not subject to appeal by the admonished attorney.

(b) Findings of probable cause. If a grievance committee finds probable cause, the branch staff counsel assigned to the committee shall promptly prepare a record of its investigation and a formal complaint and file the same with the executive director, the proceedings being filed in duplicate. The formal complaint shall be signed by the chairman or vice-chairman of the committee who participated in the proceeding. The record and formal complaint shall be in such form as shall be prescribed by the Board of Governors. Such record and formal complaint shall be reviewed promptly by bar headquarters staff counsel. Should bar headquarters staff counsel question the grievance committee’s formal complaint, further proceedings shall be suspended and the matter referred to the designated reviewer Board of Governors. Bar headquarters staff counsel may also return a formal complaint to a grievance committee to remedy technical deficiencies in the complaint. When a formal complaint by a grievance committee is not referred to the designated reviewer Board of-Governors, or returned to the grievance committee for further action, bar headquarters staff counsel shall furnish a copy of the formal complaint to the respondent, and a copy of the record shall be made available to the respondent at his expense.

(c)Discipline of minor misconduct.

(i) If a grievance committee finds an accused guilty of minor misconduct or if an accused shall admit his guilt of minor misconduct by a writing filed with a grievance committee, the grievance committee may recommend an order providing for a private reprimand recommending the manner of administration and for the taxing of costs against him. The report recommending a private reprimand shall be forwarded to staff counsel for review. If staff counsel does not return the report to the grievance committee to remedy a defect therein or if the report is not referred to the disciplinary review committee by the designated reviewer, he shall present the same to the Board of Governors or executive committee with his recommendations. If the report of a grievance-committee recommending a private reprimand is approved by the Board of Governors or executive committee the report shall then be served on the accused by the executive director or staff counsel. The order of private reprimand shall become final unless rejected by the accused attorney within fifteen days after service upon him. If rejected by the accused, the report shall be referred to bar counsel and referee for trial on complaint to be prepared by staff counsel as in the case of a finding of probable cause. The Board of Governors may order an accused attorney to appear before the board for administration of a private reprimand.

(ii)Minor misconduct for which a recommendation of a private reprimand might be appropriate is a relative rather than a precise term. In the absence of unusual circumstances expressly described in detail in the grievance committee report, misconduct shall not be regarded as minor if any of the following conditions exist:

(A) The accused has been disciplined by private reprimand more than once in the preceding ten years.

(B) The accused has been disciplined by a measure more severe than a private reprimand in the past ten years.

(C) The accused is the subject of other pending disciplinary proceedings at the time of the order.

(D) The misconduct involves any of the following: dishonesty, misrepresentation, deceit, fraud, commission of a felony, failure to account for money or property, performance of the offending act with knowledge and intent that such would breach the standards of ethical and professional conduct, and misconduct similar to that for which the accused has been previously punished.

(7) Review of grievance committee action by the designated reviewer. A designated reviewer at any time may review the actions of a grievance committee and shall review those grievance committee actions referred to him. If the designated reviewer disagrees with the grievance committee action, he shall make a report and recommendations to the disciplinary review committee. In those matters referred in writing by bar headquarters staff counsel the designated reviewer shall make the report and recommendations within twenty-one days following the mailing date of the referral, otherwise the grievance committee action shall stand.

RULE 11.05: BOARD OF GOVERNORS AND DISCIPLINARY REVIEW COMMITTEE FUNCTION AND PROCEDURE

Except as provided in rule 11.02(6), no formal complaint shall be filed by The Florida Bar in disciplinary proceedings against a member of the bar unless either a grievance committee or the Board of Governors shall first find probable cause exists to believe that the accused is guilty of misconduct justifying disciplinary action or unless the accused has been determined or adjudged to be guilty of the commission of a felony. The finding of probable cause shall be made by a grievance committee as here-inbefore provided or by the Board of Governors as hereinafter provided.

(1) Review of grievance committee matters by the disciplinary review committee. The disciplinary review committee shall review those grievance committee matters referred to it by a designated reviewer. The committee shall make a report to the Board of Governors and, unless overruled by the board, the report shall be final.

(a) (1) -Review of grievance-committee-report. Whenever a grievance matter is referred to the Board of Governors disciplinary review committee by staff counsel the designated reviewer, the board disciplinary review committee shall promptly review the record and actions of the grievance committee and the recommendations of the designated reviewer the record and-formal complaint -filed by a grievance committee and make a report to the Board of Governors providing for the issuance of: may either-issue

(i) a private reprimand which the accused may thereafter reject in the same manner as a private reprimand recommended by a grievance committee,

(ii) confirm the formal complaint,

(iii) reverse the grievance committee and find no probable cause, or

(iv) return the record and formal complaint matter to the grievance committee for further proceedings.

(b) The disciplinary review committee report shall be final unless overruled by the Board of Governors. If the Board of Governors shall find no probable cause, staff counsel shall notify the accused attorney, the grievance committee, and the complaining witness. A finding of no probable cause by the Board of Governors shall be final, and, after such finding, no further proceedings shall be had in the matter by The Florida Bar. The Board of Governors of The Florida Bar, on the basis of a report of any regular or special grievance committee, may by majority vote find probable cause and direct the filing of a formal complaint against an attorney. When a grievance-committee report recommending a private reprimand has been referred to-it, the Board of Governors or executive committee may affirm the reprimand, find probable cause and-direct the filing of a formal -complaint,-or find no probable cause,

(2) Finding — of probable — cause.—The Board of Governors-of The ■ Florida Bar, saa sponte or on the basis of-fee report-of any regular or spedat-grievance committee or on the recommendation and report of bar-counsel, may by majority-vote find probable cause and-direct the filing of a formal complaint against an attorney as hereinafter provided, — Provided, however, that if such finding is not based upon grievance committee investigation-or-report of bar counsel in pending proceedings against the accused, then -before such finding is made the accused shall be advised in general terms the nature-of the conduct which-is being considered, aad-he shall be given an opportunity to make a statement, personally- or by counsel, verbally or in writing, sworn or-unsworn,-explaining,-refuting, or admitting the alleged-misconduct. — The accused shall have no-right to present other testimony-or evidence, and he shall have no right of confrontation or cross-examination,

(3) Finding of no probable-cause, — A finding of no probable cause by the Board of Governors shall be-final, and after such finding no further proceedings shall be had in-the matter by The Florida Bar,

(2) (4) Appointment of bar counsel. When a grievance committee formal complaint is not referred to the disciplinary review committee Board of Governors or returned to the grievance committee, staff counsel of The Florida Bar Headquarters in Tallahassee may appoint bar counsel unless bar counsel has been appointed, sign the complaint and file the same in the Supreme Court, serve a copy on the respondent, and request the Supreme Court to assign a referee to try the cause. If probable cause is found by the Board of Governors, staff counsel will prepare the formal complaint.

(3) (5) Control of proceedings. Bar counsel, however appointed, at all times shall be subject to the direction of the Board of Governors. In the exercise of its discretion as the governing body of The Florida Bar, the Board of Governors prior to the receipt of evidence by the referee has the power to terminate disciplinary proceedings before a referee, whether such proceedings have been instituted upon a finding of probable cause by the Board of Governors or a grievance committee.

RULE 11.13: ADDITIONAL RULES OF PROCEDURE

(6) Consent judgment.

(a) Before formal complaint is filed. If, before a formal complaint is filed, a respondent states his or her desire to plead guilty to a grievance committee report that finds probable cause and recommends further disciplinary proceedings, then staff counsel, with the approval of the designated board reviewer, may; shall advise the respondent of the discipline that will be recommended to the referee if he-or she-will receive if a written plea of guilty is entered. Such recommendation may consider past disciplinary actions in similar situations and established Board of Governors guidelines. If a written plea of guilty is entered, a referee shall be appointed in accordance with rule 11.06. No recommended-discipline--will be conveyed to the respondent unless staff counsel-and a-designated reviewer are in complete agreement and their agreement — is reduced to writing- and made part of the file. — If-a respondent-tenders a plea of guilty in exchange for a stated — form-of- punishment and staff counsel-and the designated reviewer-cannot agree on acceptance or rejection of-the conditional guilty plea, then the tendered plea will be-referred to-the-Board of Governors for a final decisionT

(b) After filing of formal complaint. If a respondent states his or her desire to plead guilty to a formal complaint that has been filed, then bar counsel, with the approval of the Board of- Governors, -may designated reviewer, shall advise the respondent accused attorney of the discipline the bar will recommend to the referee if a written plea of guilty is entered. Such recommendation may consider past disciplinary actions in similar situations and established Board of Governors guidelines.

      The proposed amendments to rule 11.09 and rule 11.13(6)(c) would not require the Supreme Court to review a recommendation from a referee when no review is sought from the referee’s report and the punishment is limited to private or public reprimand. At this time we reject this proposal and elect to continue our review of all referee recommendations.


text:
    William B. BRADDON, Appellant, v. DORAN JASON COMPANY, a corporation, Three Over Prime Limited, a limited partnership, and Doran Jason, an individual, Appellees.
    No. 83-413.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    Rehearing Denied July 3, 1984.
    Lanza, Sevier, Womack & O’Connor, Coral Gables, and Judith A. Bass, Miami, for appellant.
    McDermott, Will & Emery and Xavier L. Suarez, Chicago, Ill., for appellees.
    Before HUBBART, NESBITT and FERGUSON, JJ.
   PER CURIAM.

This appeal challenges, inter alia, the order of the trial court dismissing two of three named defendants in a lawsuit based on a single claim. Generally, an order which totally disposes of the case as to a party or parties is a final, appealable order. Dustin v. Latzko, 155 Fla. 824, 21 So.2d 904 (Fla.1945); Let’s Help Florida v. DHS Films, Inc., 392 So.2d 915 (Fla. 3d DCA 1980). However, if the order does not constitute an end of the judicial labor and the cause relating to the dismissed party, the order is interlocutory rather than final. See Niesz v. R.P. Morgan Building Co., Inc., 401 So.2d 822 (Fla. 5th DCA 1981). See generally Alderman v. Puritan Dairy, Inc., 145 Fla. 292, 199 So. 44 (Fla.1940) (distinguishing final decrees from interlocutory orders).

Here, the lower court’s order dismissing two of the named defendants with leave to amend did not signal the end of judicial labor as to the dismissed defendants. See Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So.2d 51, 54-55 (Fla. 3d DCA 1982) (once a court has dismissed a complaint, but has granted the party leave to amend, further court action is required in order to make the dismissal final). The order in its present form is a non-appealable interlocutory order. Fla.R.App.P. 9.130(a)(3).

Appeal dismissed.


author: NIMMONS, Judge.

text:
    Robert COOPER, Appellant, v. STATE of Florida, Appellee.
    No. AU-145.
    District Court of Appeal of Florida, First District.
    March 2, 1984.
    Michael Allen, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Andrew Thomas, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

Cooper, a person under 18 years of age, was charged by information with sexual battery upon a 10-year-old child pursuant to Section 794.011(2), Florida Statutes (1981), which provides that such an offense is a “capital felony.” The jury found him guilty of the lesser offense of “assault with intent to commit sexual battery,” which is actually an aggravated assault under Section 784.021(1)(b), Florida Statutes (1981). Cooper asserts on appeal that the trial court erred in denying his motion requesting a 12-member jury and his motion to dismiss the information on the grounds that he was entitled to be proceeded against by grand jury indictment. We affirm.

In Buford v. State, 403 So.2d 943 (Fla.1981), the Court extended the holding of Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), (which reversed the death penalty imposed for the rape of an adult woman) to the rape of a child, the Florida Supreme Court holding that the death penalty for child rape was violative of the Eighth Amendment’s proscription against cruel and unusual punishment. After Buford, death was no longer a possible penalty in Florida for sexual battery, regardless of the age of the victim. The defendant in the instant case was, therefore, never at risk of the imposition of the death penalty for the October, 1982, offense with which he was charged.

Nevertheless, appellant claims that he was entitled to be proceeded against by indictment and to be tried by a 12-member jury and relies upon certain provisions of Florida law which he says require reversal. Article I, Section 15 of the Florida Constitution provides, in pertinent part:

“(a) No person shall be tried for capital crime without presentment or indictment by a grand jury....”

Also, Section 913.10, Florida Statutes (1981), and Fla.R.Crim.P. 3.270 provide for a jury of 12 persons in all “capital cases.” However, these provisions governing the manner of charging capital crimes and the number of petit jurors required to try such crimes are procedural attributes of capital crimes and fall when the death penalty is abolished. Cf. Reino v. State, 352 So.2d 853, 857 (Fla.1977); Donaldson v. Sack, 265 So.2d 499 (Fla.1972); compare Rowe v. State, 417 So.2d 981 (Fla.1982). We are simply not persuaded that the fact that Section 794.011(2) defines sexual battery of a child 11 years of age or younger as a “capital felony.” means, as appellant urges, that the above procedural requirements are still applicable notwithstanding the fact that the capital feature of the crime has been effectively eliminated.

Appellant relies in part upon Milliken v. State, 398 So.2d 508 (Fla.5th DCA 1981), which held that a charge of sexual battery under Section 794.011(2) must be by indictment because the charged offense is a capital felony. There, the state attempted to proceed by information because, as the state contended, the offense was a “normal” sexual battery and that imposition of the death penalty could not be sustained, relying upon Purdy v. State, 343 So.2d 4 (Fla.1977). But, significantly, Milliken was a pre-Buford case, and capital punishment was still a possible penalty in child-rape cases. Understandably, therefore, the Fifth District held that the prosecution must-be by indictment. See also Howard v. State, 385 So.2d 739 (Fla. 3rd DCA 1980).

Appellant also relies upon Nova v. State, 439 So.2d 255 (Fla.3rd DCA 1983). Nova involved a prosecution for first degree murder. Prior to commencement of the trial, the state and defense entered into a stipulation whereby the state “would waive the death penalty making it punishable by 20 years, if convicted” and, in consideration thereof, “the defense would waive a 12-man jury” and proceed to trial with six jurors. Nova was tried and convicted of first degree murder by a six-member jury. The court imposed a life sentence with the requirement that he serve at least 25 years before being considered for parole. The Third District reversed the trial court’s denial of Nova’s Rule 3.850 motion. Appellant points to the holding in Nova:

“[S]o long as a twelve-person jury is fixed by law to try a person accused of a capital crime, the right to a jury of that number is constitutional and an invasion of that right a denial of due process.”

439 So.2d at 262. However, as with Milliken, Nova is materially distinguishable from the case at bar because, by reason of the Buford decision, death was never a possible penalty for appellant Cooper.

The Fourth District has held in Hogan v. State, 427 So.2d 202 (Fla. 4th DCA 1983), that the defendant who, as here, was tried on a charge of child sexual battery under Section 794.011(2), was not entitled to a 12-member jury. Hogan also held that sexual battery under that section, became a “life felony” after Buford and that the mandatory penalty of life imprisonment with no parole eligibility for the first 25 years, as provided under Section 775.082(1), was not applicable. We are not called upon to decide the appropriate post-Buford penalty under Section 794.011(2) inasmuch as the defendant in the instant case, as we have noted, was convicted of the lesser offense of aggravated assault. However, we note that our sister court in Rusaw v. State, 429 So.2d 1378 (Fla. 2nd DCA 1983), although agreeing with Hogan’s conclusion that a 12-member jury was no longer required, disagreed with Hogan as to the appropriate penalty and held that one convicted under Section 794.011(2) must be sentenced to life imprisonment with no eligibility for parole for the first 25 years pursuant to Section 775.082(1), citing Buford, supra, 403 So.2d at 954. See also Duke v. State, 444 So.2d 492 (Fla. 2nd DCA 1984). The Third District agrees with Ru-saw with respect to the appropriate sentence under Section 794.011(2). State v. Jimenez, 445 So.2d 204 (Fla. 3rd DCA 1983); State v. Mendoza, 444 So.2d 570 (Fla. 3rd DCA 1984).

There being no error in the state’s reliance upon an information as the appropriate charging document and in the use of a 6-member jury, the judgment is AFFIRMED.

We certify the following as a question of great public importance pursuant to Fla.R.App.P. 9.030(a)(2)(A)(v):

IN A PROSECUTION FOR SEXUAL BATTERY UNDER SECTION 794.011(2) WHERE DEATH IS NOT A POSSIBLE PENALTY BECAUSE OF THE HOLDING IN BUFORD V. STATE, 403 So.2d 943 (FLA.1981): (1) MAY THE STATE PROCEED BY INFORMATION INSTEAD OF INDICTMENT, AND (2) IS THE DEFENDANT ENTITLED TO A 12-MEMBER JURY?

SMITH and WIGGINTON, JJ., concur.

      . No issue has been raised as to whether aggravated assault under Section 784.021(1)(b) is a lesser included offense under the crime charged in the information. We note that such lesser offense was submitted to the jury at the defendant’s request.


text:
    Jimmy GOLDSTEIN, Appellant, v. STATE of Florida, Appellee.
    No. 83-2357.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1984.
    Rehearing Denied July 11, 1984.
    Gary E. Chase and Harvey H. Harling of Boca Raton Community Legal Services, Boca Raton, for appellant.
    No appearance required for appellee.
   PER CURIAM.

We reverse the trial court’s denial of appellant’s motion for post-conviction relief and remand for an evidentiary hearing on appellant’s allegations of ineffective assistance of counsel by reason of his counsel’s alleged improper conduct in securing appellant’s agreement to plead guilty. See Ramsey v. State, 408 So.2d 675 (Fla. 4th DCA 1981). We also believe that the requirements of Florida Rule of Criminal Procedure 3.850 requiring that the motion be sworn were satisfied by counsel’s sworn attestation to the motion.

ANSTEAD, C.J., and LETTS and DOW-NEY, JJ., concur.