author: PER CURIAM. ADKINS, Justice,

text:
    THE FLORIDA BAR, Complainant, v. Lawrence H. HIPSH, Sr., Respondent.
    No. 61806.
    Supreme Court of Florida.
    Dec. 1, 1983.
    John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel and Mary Ellen Bateman, Bar Counsel, Tallahassee, for complainant.
    Leo A. Thomas of Levin, Warfield, Mid-dlebrooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, for respondent.
   PER CURIAM.

This disciplinary proceeding is before the Court on complaint of The Florida Bar, the report of the referee, and respondent’s petition for review. We have jurisdiction pursuant to article V, section 15, Florida Constitution.

Respondent contests certain findings of fact and conclusions made by the referee in his report and further contends that the recommended discipline is inappropriate under the facts of this case.

The referee found that respondent and his employees and associates earned a total fee of $2,866.00 for work on an admiralty dispute. The retaining agreement was in writing and included a retainer’s fee of $5,000.00. The referee further found that respondent refused to refund that portion of the retainer fee unearned by him under the terms of the fee agreement and thus violated Florida Bar Code of Professional Responsibility Disciplinary Rule 2-106(A). The referee then recommended that respondent be suspended from the practice of law for thirty days, that at the end of said term of suspension he be reinstated upon proof of rehabilitation and restitution to the client of $2,134.00 with interest from July 21, 1980, that he be placed on probation for three years, and that he pay the costs of these proceedings.

We concur with the referee in that his findings of fact, conclusions and recommendation of guilt are supported by clear and convincing evidence. We disagree with the referee, however, as to the discipline. Under the facts of the instant case, the proper penalty is a public reprimand, restitution, and costs. We therefore order respondent, Lawrence H. Hipsh, Sr., to appear personally before the Board of Governors of The Florida Bar, at a time and place to be determined by the Board, to receive the reprimand. Respondent shall also pay restitution to Wallace K. Cady in the sum of $2,134.00, with interest from July 21, 1980 at eight percent per annum.

Costs of these proceedings in the amount of $2,015.34 are also assessed against respondent.

It is so ordered.

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

ADKINS, J., dissents with an opinion, in which BOYD, J., concurs.

ADKINS, Justice,

dissenting.

I respectfully dissent. The record does not establish, with undisputed testimony, that Hipsh refused to refund an unearned portion of the retainer fee. The record shows only that said attorney requested an opportunity to first review complainant’s file in order to determine what, if any, refund complainant was entitled. Hipsh’s request and subsequent conduct were not unreasonable given the fact that both the number of hours he worked on this case and the hourly rate to be charged were (and still are) in question.

After detailed review of this record, it is my firm belief that the charge brought by The Florida Bar is structured around nothing more than a basic fee dispute between client and attorney. The Integration Rule of The Florida Bar, Rule 11.02(4), expressly restricts the scope of discipline for such conflicts, stating, in pertinent part:

Controversies as to the amount of fees are not grounds for disciplinary proceedings unless the amount demanded is clearly excessive, extortionate, or the demand is fraudulent.

(Emphasis added.) Here, there is no clear showing of “excessiveness” which would mandate attorney discipline. Hipsh has consistently maintained that, prior to the instant complaint, Swindle (primary counsel for the cause) reported that the $5,000 fee had been legitimately earned. He further contends that his subsequent dealings with complainant were conducted pursuant to his reliance on Swindle’s report. Moreover, expert testimony proffered by Hipsh indicates that, given the type work done on the case, the $5,000 fee was not a clearly excessive amount. The record manifests, at very minimum, a substantial confusion concerning the fee arrangement and the evidence provided therein was far from clear and convincing that Hipsh had charged or collected an excessive fee. See The Florida Bar v. Rayman, 238 So.2d 594 (1970).

Therefore, inasmuch as this matter involves a fee dispute and there was no clear and convincing showing that the fee was excessive, the issue is not a proper subject for disciplinary proceeding. See Integration Rule of The Florida Bar, Rule 11.02(4).

BOYD, J., concurs.


source: Caselaw Access Project

author: PER CURIAM. BOYD, Justice,

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Thomas E. HUNT, Respondent.
    No. 62425.
    Supreme Court of Florida.
    Dec. 1, 1983.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Michael D. Powell, Bar Counsel, Fort Lauderdale, for complainant.
    Robert J. O’Toole, Fort Lauderdale, for respondent.
   PER CURIAM.

This disciplinary proceeding is before us on the complaint of The Florida Bar and the report of the referee recommending respondent be disbarred, with no opportunity to apply for readmission to The Florida Bar for four years. Respondent was previously disbarred by this Court, The Florida Bar v. Hunt, 429 So.2d 1201 (Fla.1983), and the referee’s recommended discipline is to run concurrently with the prior disbarment. The Board of Governors of The Florida Bar petitioned for review, seeking to increase the period respondent would be barred from seeking readmission to twenty years. We have jurisdiction. Art. V, § 15, Fla. Const.

Respondent’s disciplinary problems, while going back several years or more, have all come to light since The Florida Bar first began to scrutinize his activities in 1981. His past disciplinary record is summarized in the findings of the referee in this case:

On November 19, 1981, [rjespondent received a private reprimand in each of two (2) cases, one for failure to fully explain a settlement agreement to a client, and the other for charging a fee in excess of that agreed upon by the client. On June 10, 1982, respondent was suspended for six (6) months for neglecting the affairs of a client. The Florida Bar v. Hunt, 417 So.2d 967 (Fla.1982). Additionally, on March 31,1983, respondent was disbarred from the practice of law for practicing law in the form of a professional association wherein non-lawyers were corporate officers and directors, practicing law while suspended for non-payment of his annual Bar dues, failing to promptly notify clients of the receipt of funds on their behalf and failing to account for and or deliver over to them such funds, employing a disbarred attorney [Paul Mueller, respondent’s former partner] without providing required reports to The Florida Bar and allowing such attorney to be signator on his trust account, instituting through another attorney a friv[o]lous action against his own client, and permitting a disbarred attorney [Mueller] to practice law through his professional association.

When respondent was suspended in June 1981 for alleged violations of the Integration Rule and Code of Professional Responsibility of The Florida Bar relating to trust funds, he was ordered to wind up his law practice and provide an accounting of his trust account to The Florida Bar. In so doing, respondent discovered that his trust account balance was zero. Respondent testified in this case that he had no reason to believe anyone other than his bookkeeper, his former partner, Mueller, who was disbarred at the time, had taken the funds in the account. Respondent also testified Mueller had left town for parts unknown.

The two counts in this case stem from respondent’s inability to account for funds given to him by clients. As to the first count, the referee found that a client gave respondent three checks totalling $5600 to pay expert witness fees in a case respondent was handling. Respondent testified he instructed the funds be placed in his trust account. However, respondent endorsed the checks in blank, and someone, apparently Mueller, deposited the funds in the account of a business owned and operated by Mueller.

As to the second count, the referee found that respondent was given $2,000 to hold in escrow pending closing on a sale of property. After the funds came due respondent failed to turn over the escrow funds to the proper party. The funds had been deposited in respondent’s trust account, but they became due in August 1981 after respondent discovered his trust account had been depleted. The referee found that respondent had failed to properly supervise the bookkeeping on his trust account: “Although respondent was not shown to have personally converted client funds, his gross neglect of his trust account has caused equally serious harm to the public.”

On Count I, the referee recommended respondent be found guilty of violating Disciplinary Rules 9-102(A), 9-102(B)(3), and 9-102(B)(4) of the Code of Professional Responsibility, and Rule 11.02(4), article XI, of the Integration Rule of The Florida Bar. On Count II, the referee recommended respondent be found guilty of violating Disciplinary Rule 9-102(B)(4), Integration Rule 11.02(4) and Integration Rule By-Laws, ar-tide XI, section 5. Respondent and the Bar do not contest these recommendations.

The Florida Bar seeks disbarment for twenty years because of the cumulative nature of respondent’s conduct. Enhanced discipline because of cumulative conduct is a well-established doctrine in Florida Bar discipline cases. The Florida Bar v. Rubin, 362 So.2d 12 (Fla.1978). However, we find that the recommended discipline in the instant case sufficiently reflects enhancement. The referee’s discipline recommendation was based in part on the cumulative nature of respondent’s conduct: “The fact that such conduct is cumulative to, and of a similar nature to a part of his previous misconduct, justifies a more severe discipline.” Counsel for The Florida Bar recommended to the referee a minimum five-year waiting period before application for readmission.

The referee did not find that respondent converted client funds to his own use. This is a classic example of gross neglect resulting in harm to the public. The referee’s findings of fact, conclusions and recommendation of guilt are supported by clear convincing evidence. We approve the discipline recommended by the referee. Respondent has been suspended since June 1981, which means that he will not have practiced law for a period of almost six years before he is eligible to apply for readmission. After applying for readmission, he must successfully pass the Florida Bar Examination and prove rehabilitation to the satisfaction of the Florida Board of Bar Examiners.

Accordingly, we order respondent be disbarred without leave to apply for readmission to The Florida Bar for four years, and that such disbarment run concurrently with respondent’s disbarment in The Florida Bar v. Hunt, 429 So.2d 1201 (Fla.1983), effective March 81, 1983. Costs are assessed against respondent in the amount of $1,042.29.

It is so ordered.

ALDERMAN, C.J., and ADKINS, 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 the order of disbarment but do not agree with extending the term thereof beyond the three-year minimum.

“A former member who has been disbarred may only be admitted again upon full compliance with the rules and regulations governing admission to the Bar.” Fla. Bar Integr.R., art. XI, Rule 11.10(5). Thus Hunt, if he is ever to practice law again in Florida, will have to establish that he is of suitable character. In the course of doing so he will be required to prove rehabilitation following his previous conduct which showed a lack of such fitness. He will also have to prove his professional competence by passing the bar examination. Rule 11.10 of The Integration Rule requires that a disbarred attorney wait three years before applying to be again admitted to the practice of law. We should not extend this period in order to further punish a disbarred lawyer because the bar examiners and justices sitting when he applies for admission should be the ones to pass upon his suitability at that time. I therefore dissent.


author: BOYD, Justice.

text:
    CITY OF TALLAHASSEE, Appellant, v. FLORIDA PUBLIC SERVICE COMMISSION, Appellee.
    No. 62833.
    Supreme Court of Florida.
    Dec. 1, 1983.

      See also 433 So.2d 505.
    Frederick M. Bryant and Davisson F. Dunlap, Jr. of Pennington, Wilkinson & Dunlap, and Bryan W. Henry of Henry, Buchanan, Mick & English, Tallahassee, for appellant.
    William S. Bilenky, General Counsel, Patrick K. Wiggins, Deputy Gen. Counsel and Paul Sexton, Staff Counsel, Fla. Public Service Com’n, Tallahassee, for appellee.
   BOYD, Justice.

We have for review a decision of the Public Service Commission ordering the City of Tallahassee to eliminate the fifteen percent surcharge the City imposes upon non-resident utility customers. We have jurisdiction. Art. Y, § 3(b)(2), Fla. Const.

This case originated when the Public Service Commission ordered the City of Tallahassee to show cause why the surcharge the City imposed upon non-resident utility customers should not be eliminated. The City filed a petition for writ of prohibition in this Court challenging the Commission’s authority to issue such an order. We denied the petition, holding that the City’s use of distinct customer classifications based upon residency was a matter of rate structure which the Commission had statutory authority to regulate. City of Tallahassee v. Mann, 411 So.2d 162 (Fla.1981).

Upon remand, the City filed a Petition to Initiate Rulemaking, which the Commission denied. The City appealed this ruling, which appeal was still pending in this Court at the time the Commission rendered its decision in the instant ease. Shortly after the instant appeal was argued, we issued an opinion in the earlier appeal affirming the Commission’s denial of the petition to initiate rulemaking. See City of Tallahassee v. Public Service Commission, 433 So.2d 505 (Fla.1983).

Meanwhile, the City requested a formal hearing pursuant to section 120.57(1), Florida Statutes (1981). Before the hearing began, the City filed a request that the commissioners recuse themselves on the ground that they had financial interests in the outcome of the proceeding. The Commission denied the request.

At the hearing the City attempted to establish a reasonable basis for its surcharge by showing that it costs more to serve customers residing outside the city limits than it did to serve those residing inside. An accountant testified that in figuring the difference in costs of serving different geographic locations, the City focused on the distribution costs since they were more clearly linked with service location than were generation or transmission costs which served the whole system. He also testified that he performed a statistical analysis showing that increases in population caused increased demand resulting in a need for additional distribution facilities. A city engineer testified that higher distribution costs were associated with rural areas because less densely populated areas required more transformers, and that such rural transformers were usually smaller and less efficient than the larger transformers that could be used to serve more densely populated areas. Another accountant testified that his firm calculated the actual costs of distribution equipment and allocated these costs to inside or outside the city limit categories depending upon the location of the equipment. The costs of distribution equipment which could not be specifically identified were allocated to these two categories based on the respective .percentages of population growth.

Using the accountants’ study, a consulting engineer testified that the differential in distribution costs would justify a 19.39% surcharge. On cross-examination he explained that his calculations were based on comparing the average cost per person of the distribution equipment inside the city limits with the average cost per person of equipment outside the city limits. He conceded that the most recent purchases of distribution equipment reflected a higher cost because of inflation. He did not consider whether the cost of distribution equipment was recovered through the base rates.

An economist testified about the differences among average, incremental, and marginal costs. He explained that the incremental cost method assigns increased costs to those responsible for causing the increase and suggested that the Commission adopt this method. He explained that since serving new customers generally costs more than serving existing customers, allocating costs on a geographic basis is an appropriate means for allocating costs.

Finally, the City attempted to justify the surcharge by showing that the City spends over $2 million annually in providing nonresidents other municipal services such as police and fire protection and public works.

The Commission presented evidence questioning the reasonableness of the relationship between distribution costs and the City’s boundaries. A rate analyst testified that assuming a correlation between distribution costs and population density, the City’s boundaries are not an appropriate factor to consider since the City’s population density has become more like that of the contiguous unincorporated areas due to recent annexations. He explained that there were some areas inside the city limits which were less dense than some areas outside the city limits. The assistant director of the Public Service Commission’s electric and gas division testified that even though the average costs may be higher outside the city limits, the incremental costs of adding new customers outside the city limits was lower than the incremental costs of adding new customers inside the city limits.

The Commission entered an order that the fifteen percent surcharge should be eliminated. The Commission found that the surcharge was not justified on a cost-of-service basis; that the classification of customers by location within or without the City’s territorial limits was unduly discriminatory; and that the provision of other municipal services to non-residents did not justify the surcharge.

In this appeal, the City raises three issues: whether the Commission’s actions actually constitute rulemaking; whether there is competent substantial evidence supporting the Commission’s findings; and whether the commissioners should have re-cused themselves. Since we find that the Commission’s order did not depart from the essential requirements of law, we affirm.

As for the City’s argument that the Commission’s actions constitute rulemaking, we have already ruled in the Commission’s favor in City of Tallahassee v. Florida Public Service Commission, 433 So.2d 505 (Fla.1983), where we held that the Commission did not abuse its discretion in declining to initiate rulemaking. We recognized

that the factual situations under which particular surcharge issues arise will be quite diverse, and for this reason, the PSC should not be compelled to promulgate restrictive rules in an area demanding flexibility. The statutes outlining the PSC’s jurisdiction and duties are necessarily general in nature, providing for flexibility in the exercise of its power.
To the extent the PSC solidifies its position on policy in a particular area, we believe such established policy should be codified by rule. However, as in the instant case, if the PSC seeks to exercise its authority on a case-by-case basis until it has focused on a common scheme of inquiry derived through experience gained from adversary proceedings, then we hold that there should be erected no impediment to the PSC’s election of such course.

Id. at 507. There is nothing in the record to show that the Commission’s decision to develop policy on a case-by-case basis in this area of the law was an abuse of discretion. The Commission’s finding that the City’s boundaries were not a reasonable basis for creating a customer classification was based on evidence unique to the City of Tallahassee and does not constitute an ironclad rule which will automatically apply to all other municipalities.

This brings us to the issue of whether there is sufficient competent evidence to support the Commission’s findings. As we stated in City of Tallahassee v. Mann, 411 So.2d 162 (Fla.1981), the burden was upon the City to show a reasonable basis for classifying customers within or without the city limits. This the City failed to do. There was evidence that the average cost of distribution equipment was associated with the population density but that there was not a high degree of correlation between population density and the City’s boundaries. There was also evidence that the City’s boundaries were subject to sudden changes through annexations which were also unrelated to the population density of the areas annexed. This evidence supported the Commission’s findings that classifying customers on the basis of residency was unduly discriminatory.

Although the Commission did order that the surcharge be eliminated, it suggested a reason not argued by the City which could justify the continuance of the surcharge. In its order the Public Service Commission stated:

The City did not rely upon the existence of its in-city utilities tax as a justification for imposing the surcharge, and no evidence was received in support of that approach. We are therefore unable to consider that justification in rendering our decision here. Nevertheless, should the City, at a later date, file a tariff providing for an out-of-city surcharge equal to the in-city utilities tax rate, we would not consider that as an unjustly discriminatory rate structure as found herein. The Public Service Commission did not regulate municipal electric rate structures at the time that many cities had the option to adopt a utilities tax. A city could establish what appeared to be, as a practical matter, equal charges on utility bills inside and outside the city by adopting a utilities tax within the city and an equal surcharge outside the city. Alternatively, a city could, in fact, establish equal charges on electrical use simply by raising all rates equally inside and outside the city. With no constraint on the choice of options, some cities chose to adopt a utilities tax and an equal surcharge.
Where a municipality charges an out-of-city surcharge equal to its in-city utilities tax, a rate differential still exists. The surcharge is a charge for electric utility service, while the utilities tax is simply a tax. In such a case, a municipality could eliminate the rate differential simply by eliminating the tax and the surcharge and charging equally, inside and outside the city. However, certain municipalities, who may have pledged their utility tax revenues to pay bond indebtedness, may not have this option. We find that, as a matter of policy, we should not require cities to go through this exercise, when the net cost to the ratepayer would be the same.

Thus the Commission has stated that it would allow the City of Tallahassee to charge nonresidents a surcharge in an amount equal to what residents have to pay as a utilities tax. We agree that such a surcharge would not be unduly discriminatory.

Finally, we consider the City’s argument that the commissioners should have recused themselves. The standard to be used in disqualifying an individual serving as an agency head is the same as the standard used in disqualifying a judge. § 120.-71, Fla.Stat. (1981). For an interest in a proceeding to be a legitimate basis for disqualification, that interest must not be remote, uncertain, or speculative. State ex rel. Hart v. Call, 41 Fla. 442, 26 So. 1014 (1899); Peters v. Meeks, 171 So.2d 562 (Fla. 2d DCA 1964). In this case the City claims the commissioners had an interest in the proceeding because of the impact their decision might have on their utility bills. We find this interest to be remote, uncertain and speculative since any decision concerning the surcharge would not guarantee a financial benefit to the commissioners.

Having found no departure from the essential requirements of law, we affirm the order of the Public Service Commission.

It is so ordered.

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

McDONALD, J., dissents.


text:
    THE FLORIDA BAR, Complainant, v. Robert M. SEGAL, Respondent.
    No. 63272.
    Supreme Court of Florida.
    Dec. 1, 1983.

      John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and John B. Root, Jr., Bar Counsel, Orlando, for complainant.
    No appearance for respondent.
   PER CURIAM.

This disciplinary proceeding is before the Court on the complaint of The Florida Bar and the report of the referee. We have jurisdiction. Art. V, § 15, Fla. Const. Neither The Florida Bar nor the respondent, Robert M. Segal, has filed a petition for review.

The Florida Bar filed a complaint against respondent, charging failure to attend to a legal matter entrusted to him, failure to carry out a contract of employment, and failure to pay promptly to the client funds belonging to the client. Respondent filed no answer and failed to respond to the Bar’s request for admissions. Respondent made no appearance before the Bar Grievance Committee or before the referee.

The referee made the following recommendations:

RECOMMENDATIONS CONCERNING - GUILT OR INNOCENCE:
Based upon the foregoing findings of fact, I recommend that Robert M. Segal be found guilty of the following violations of his Oath as an attorney, The Integration Rules of the Code of Professional Responsibility:
1.6-101A(3) — by neglecting a legal matter entrusted to him by his client. 2. 7-101A(2) — by failing to carry out a contract of employment entered into with a client for professional services.
3. 9-102(B)(4) — by failing to pay promptly to the client as requested the funds and documents in the possession of the respondent which the client was entitled to receive.
RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED:
I recommend that the respondent be suspended for a fixed period of twelve months, thereafter until he shall prove his rehabilitation and for an indefinite period until he shall pay the costs of this proceeding and make restitution to his client in the amount of $500.00 as provided in Rule 11.10(4).

The referee also recommended that respondent be taxed for all costs relating to this matter incurred by the Bar, currently itemized at $503.00.

We approve the findings and recommendation of the referee and adopt the same as the judgment of this Court.

Respondent is suspended from the practice of law for a period of twelve months, and thereafter till he has proved his rehabilitation and has made restitution to the client and paid the costs of these proceedings. The twelve-month suspension shall be effective January 15, 1984, thereby giving respondent time to close out his practice and to protect his clients, and it is ordered that respondent shall not accept any new clients.

It is so ordered.

ADKINS, Acting C.J., and OVERTON, EHRLICH and SHAW, JJ., concur.

BOYD, J., concurring in part and dissenting in part with an opinion.

BOYD, Justice,

concurring in part and dissenting in part.

I concur in the majority opinion finding guilt, but I think a twelve month suspension is too harsh and disproportionate discipline to other similar cases.

I would suspend respondent for ninety-one days, require proof of rehabilitation, payment of costs, and return of the funds improperly retained.


author: OVERTON, Justice.

text:
    STATE of Florida, Petitioner, v. Carlton BARNES, Respondent.
    No. 63470.
    Supreme Court of Florida.
    Dec. 1, 1983.
    Jim Smith, Atty. Gen. and John W. Tied-emann, Asst. Atty. Gen., Tallahassee, for petitioner.
    Carl S. McGinnes, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for respondent.
   OVERTON, Justice.

This is a petition to review a decision of the First District Court of Appeal reported as Barnes v. State, 426 So.2d 1274 (Fla. 1st DCA 1983). The district court reversed the respondent’s conviction for burglary because the information charging him with burglary did not allege the specific offense the respondent intended to commit upon entering the victim’s dwelling.

Previously, there was conflict between the First District Court of Appeal’s decision in Barnes and the Fourth District Court of Appeal’s decision in Waters v. State, 401 So.2d 1131 (Fla. 4th DCA 1981). Now there is conflict with our decision in State v. Waters, 436 So.2d 66 (Fla.1983), which was decided after the district court’s decision in Barnes. In Waters we approved the Fourth District’s decision in Waters and held that “an indictment or information charging burglary need not specify the offense the accused is alleged to have intended to commit, although it must allege the essential element of intent to commit an offense.” Id. at 68. See also State v. Speights, 437 So.2d 1387 (Fla.1983); State v. Rozier, 436 So.2d 73 (Fla.1983). In the instant case, the respondent “was tried under an information which alleged that he unlawfully entered the victim’s dwelling with the intent to commit an offense therein, in that he entered stealthily.” 426 So.2d at 1275. The information charging respondent with burglary, therefore, properly alleged the essential statutory element of intent to commit an offense.

The decision of the district court is quashed and this cause is remanded to the trial court for proceedings in accordance with this Court’s decision in Waters.

It is so ordered.

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


author: PER CURIAM. EHRLICH, Justice,

text:
    GULFSTREAM PARK RACING ASSOCIATION, INC., Petitioner, v. DEPARTMENT OF BUSINESS REGULATION, et al., Respondents. DEPARTMENT OF BUSINESS REGULATION, et al., Petitioners, v. GULFSTREAM PARK RACING ASSOCIATION, INC., Respondent.
    Nos. 64186, 64257.
    Supreme Court of Florida.
    Dec. 1, 1983.
    David S. Romanik of Landefeld & Ro-manik, Hollywood, for petitioner/respondent.

      David M. Maloney, Deputy General Counsel, Dept, of Business Regulation, Tallahassee, for respondents/petitioners.
    Edward S. Jaffry and William L. Gros-senbacher of Horne, Rhodes, Jaffry and Horne, Tallahassee, for Hialeah, Inc.; and James C. Pilkey of Taylor, Brion, Buker & Greene, Miami, for Tropical Park, Inc., ami-ci curiae.
   PER CURIAM.

Gulfstream Park Racing Association, Inc. v. Department of Business Regulation, 443 So.2d 113 (Fla. 3d DCA 1983), is before us because of express and direct conflict with Hialeah, Inc. v. Gulfstream Park Racing Association, Inc., 428 So.2d 312 (Fla. 4th DCA 1983). We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution. We approve the decision of the Third District Court of Appeal.

Judge Pearson, writing for the majority in Gulfstream, observed, “In this world, nothing is certain but death, taxes and that Gulfstream and Hialeah will do annual battle for the highly desirable ‘middle dates’ of South Florida’s winter thoroughbred racing season.” Gulfstream, at-(footnote omitted). We hold no illusion that this opinion will alter the accuracy of Judge Pearson’s observation.

The facts leading to the present controversy are recounted in the Third District Court’s opinion. Suffice it to say here that the root of the annual battle between Gulfstream and Hialeah lies in section 550.-011(1), Florida Statutes (1981), which provides that “[n]o horse tracks licensed to engage in the conduct of running races located within 100 air miles of each other shall operate on the same dates.” Section 550.081(1), Florida Statutes (1981), provides for the Florida Pari-mutuel Commission (Commission) to allocate winter racing dates among the three south Florida per-mitholders located within thirty-five miles of each other. The racing season consists of three fifty-day periods, the middle being the most favored. Section 550.081(3), Florida Statutes (1981), provides for the Division of Pari-mutuel Wagering to issue a license to a permitholder upon request filed with the Commission. The statute is silent, however, as to how the Commission is to make the allocations when there is more than one request for the middle dates. As always, Gulfstream and Hialeah have both applied for the favored middle dates of the 1983-1984 racing season.

Earlier this year, when the 1982-1983 award to Gulfstream was at issue, the Fourth District Court of Appeal in Hialeah held that section 550.081, Florida Statutes (Supp.1980), was unconstitutional under the nondelegation of legislative power doctrine. After the decision was issued, Gulfstream petitioned the Third District Court for a writ of mandamus to compel the Commission to assign Gulfstream the middle dates for 1984. Gulfstream argued that “because the authority of the Commission to allocate in section 550.081(3), Florida Statutes (1981), has been declared unconstitutional ... the function of the Commission had been reduced to a ministerial one — award the dates requested by any qualified applicant.” Gulfstream, at -. The Third District Court denied the petition, finding that the necessary predicate for its issuance was absent in that the duty the petitioner sought to have discharged was not ministerial. In so doing the Third District Court upheld the constitutionality of the statute as not unlawfully delegating legislative authority to the Commission.

At issue is whether the legislature has delegated its legislative power without spelling out guidelines or standards for the use of that power. It is apparent that the statute contains no explicit standards. However, in the licensing area there exists an exception to the requirement that the legislature must always enunciate express guidelines and standards. Brewer v. Insurance Commissioner and Treasurer, 392 So.2d 593 (Fla. 1st DCA 1981). When the legislature reenacts a statute which has a judicial construction placed upon it, it is presumed that the legislature is aware of the construction and intends to adopt it, absent a clear expression to the contrary. Deltona Corp. v. Kipnis, 194 So.2d 295 (Fla. 2d DCA 1966). Our task, then, is to determine whether there existed palpable standards which the legislature implicitly adopted in reenacting section 550.081.

Our decision in Hialeah Race Course, Inc. v. Department of Business Regulation, 270 So.2d 366 (Fla.1972) (Hialeah 1972), set forth seven criteria for consideration in determining the allocation of racing dates. Gulfstream argues, not without some logic, that the legislature did not intend to adopt the criteria of Hialeah 1972 when it enacted chapter 80-57, Laws of Florida (1980), because it could have achieved the same result by taking no action at all, which would have allowed the revival of the law controlling at the time Hialeah 1972 was decided. We find more persuasive the Commission’s argument that it would be unreasonable to suppose that the legislature would knowingly and deliberately have enacted a statute with no standards. Statutes are presumed to be constitutional and should be so construed if possible. Schultz v. State, 361 So.2d 416 (Fla. 1978); Department of Legal Affairs v. Rogers, 329 So.2d 257 (Fla.1976). This principle, coupled with the presumption that the legislature is fully aware of the judicial construction that has been placed upon a statute in the past, leads us to the conclusion that the legislature adopted the judicial construction of this Court in Hialeah 1972, as there is no clear contrary legislative expression. We assume the legislative intent was that the statute as reenacted meet constitutional muster; this result could only be accomplished by the implicit adoption of the standards spelled out in Hialeah 1972.

Gulfstream’s argument in support of its petition for the writ of mandamus relied upon the unconstitutionality of section 550.-081, as determined by the Fourth District Court. In accordance with our determination that the statute is constitutional and that the allocation of racing dates is a discretionary matter to be determined by an application of the criteria of Hialeah 1972, we approve the decision of the Third District Court of Appeal in denying Gulfs-tream’s petition for writ of mandamus on the basis that the duty the petitioner sought to have discharged was discretionary rather than ministerial.

We also approve the decision to grant Gulfstream’s petition for writ of quo warranto challenging the Division’s authority to allocate racing dates. It is the Commission that is vested with the nondelegable discretionary power to allocate racing dates under section 550.081, as provided in section 550.011(1), Florida Statutes (1981):

The Florida Pari-mutuel Commission shall hear and approve the dates for racing in any county where one or. more horse tracks ... are seeking to race and hold ratified permits upon which any track can operate in any county, apportioning the dates to the several tracks in such counties as provided by law .... The commission shall not delegate this function to any subordinate officer or division of the Department of Business Regulation.

Additionally, authority exists pursuant to section 20.16(4)(a), Florida Statutes (1981):

(4) There is created within the Department of Business Regulation a Florida Pari-mutuel Commission .... The Florida Pari-mutuel Commission shall have the authority to:
(a) Hear and approve the dates and changes of dates for racing and the dates within which any track ... may be operated as prescribed by chapters 550 and 551, and it shall not delegate said function to any subordinate officer or division of said department.

The decision of the Third District Court of Appeal is approved. The decision of the Fourth District Court of Appeal holding section 550.081 unconstitutional is disapproved.

It is so ordered.

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

EHRLICH, J., dissents with an opinion.

EHRLICH, Justice,

dissenting.

I dissent.

The majority achieves a fiscally practical result by legally questionable means. The current version of section 550.081 is materially different from the version of the statute declared unconstitutional in Hialeah Race Course, Inc. v. Gulfstream Park Racing Association, 245 So.2d 625 (Fla.1971). That version, however, contained a statement of legislative policy and intent which Hialeah 1972 could fairly be said to construe and implement. Later amendments to section 550.081 replaced the portions held to be unconstitutional with guidelines which echoed the earlier statement of policy and purpose; thus Hialeah 1972 could still be considered controlling construction of that legislative intent.

As the majority concedes, the new statute provides no standards or guidelines. There is no language in the statute which Hialeah 1972 may be said to construe. Grafting the language of a case construing a statute which no longer exists onto a substantially dissimilar statute is judicial legislation, an activity this Court claims to eschew. Worse, the majority’s action establishes that judicial interpretation of a statute has a vitality which outlasts that of the statute construed. This proposition bids fair to engender legislative and judicial chaos.

The legislature has erred, and with the best will in the world, the Court cannot correct that error. Petitioners assure us that if the statute is declared unconstitutional, their recourse will be to privately negotiate with Hialeah and to submit noncompeting requests for dates to the Commission, thus presenting the Commission with the opportunity to award the dates in a purely ministerial, non-discretionary action. This seems an imminently preferable resolution to the situation, one which establishes no dangerous precedent. The temptation to temporize and to follow the path of expediency in a case like this one is rather strong. I am gravely concerned that the precedent will come back to haunt the Court in another case.

I would approve the decision of the Fourth District Court of Appeal and declare the statute an unconstitutional delegation of legislative authority.

       (a) The interest of the State;
      (b) The interest of the track owner;
      (c) The good-will;
      (d) The quality of the horses;
      (e) The track facilities;
      (f) Geography; and
      (g) Skill in management.
      270 So.2d at 369.


author: ROBERT P. SMITH, Jr., Chief Judge.

text:
    Danny Charles COLLINS, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AJ-42.
    District Court of Appeal of Florida, First District.
    April 27, 1983.
    Rehearing Denied Dec. 30, 1983.
    Richard E. Gerstein and Paul M. Rash-kind of Sams, Gerstein & Ward, P.A., Miami, for appellant.
    Earl H. Archer, Acting General Counsel for Florida Parole and Probation Com’n, Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

Appellant Collins contends, among other things, that the Florida Parole and Probation Commission erred in computing his presumptive parole release date by using an improper salient factor score. Specifically, he urges that the Commission cannot rely upon a juvenile offense for which he was placed on probation in Arkansas to support its finding in the salient factor score that he has a prior conviction. See Fla.Admin.Code Rule 23-19.04(l)(e):

Conduct resulting in diversion from the judicial process without a specific finding of guilt (e.g., deferred prosecution, informal probation, pretrial intervention, probation without plea, adjudication withheld) is not counted in scoring (the salient factor score).

We disagree and affirm.

On August 27, 1979, a parole examiner initially recommended a presumptive parole release date of August 11, 1987. The full Commission, however, modified Collins’ salient factor score from “1” to “2” and set his presumptive parole release date at “life.” Collins then sought administrative review before the Commission and argued, as one of his issues, that the salient factor score had been improperly modified by use of this alleged juvenile probation in Arkansas. The Commission affirmed, and Collins sought no judicial review of the Commission’s order. Compare Canter v. Florida Parole and Probation Commission, 409 So.2d 227 (Fla. 1st DCA 1982).

On May 20, 1981, the Commission on its own initiative held a hearing to establish a proper presumptive parole release date to replace the improper “life” designation. See Holston v. Florida Parole and Probation Commission, 394 So.2d 1110 (Fla. 1st DCA 1981). Upon administrative review before the Commission, Collins again unsuccessfully urged error in the Commission’s computation of his salient factor score. This appeal ensued.

Considering this sequence of events, we conclude that the contention now made is foreclosed because it is identical to the issue raised by Collins and considered by the Commission at his first section 947.173 review in 1979. See Broxson v. Florida Parole and Probation Commission, 425 So.2d 169 (Fla. 1st DCA 1983); McClain v. Florida Parole and Probation Commission, 416 So.2d 1209 (Fla. 1st DCA 1982); Gatto v. Florida Parole and Probation Commission, 415 So.2d 869 (Fla. 1st DCA 1982). The Commission’s special action in reestablishing his presumptive parole release date pursuant to the dictates of Holston did not reopen questions already decided by the Commission.

We have considered the other issues raised and find them to be without merit.

AFFIRMED.

LARRY G. SMITH and THOMPSON, JJ., concur.

      . In Holston, this court held that the Commission may not simply set an inmate’s presumptive parole release date at “life,” as here, but must instead establish a date certain. 394 So.2d at 1111.


author: COWART, Judge.

text:
    Gary CRAWFORD, et al., Appellants, v. SHERIFF OF ORANGE COUNTY, Florida, Appellee.
    No. 82-1355.
    District Court of Appeal of Florida, Fifth District.
    July 14, 1983.
    Rehearing Denied Dec. 19, 1983.
    Patrick M. Magill, Orlando, for appellants.
    William C. Yose, Orlando, for appellee.
   COWART, Judge.

This case involves the forfeiture of a pickup truck under section 932.701 — 932.-704, Florida Statutes (1981).

The sole question is whether there was evidence that the pickup truck was used in the commission of a felony. The sheriff claimed that the pickup truck and other items were instrumentalities in the commission of two felonies, aggravated assault (§ 784.021, Fla.Stat. (1981)) and shooting at a vehicle (§ 790.19, Fla.Stat. (1981)).

Two witnesses (Deputy Loren and Deputy White) testified for the sheriff and two witnesses testified for the pickup truck owners (one owner, Gary Crawford, and James Wilson, Jr.).

The two deputies testified that at about 10:30 p.m. each deputy was in a separate patrol car in a parking lot 70 to 80 feet from a highway when they heard an explosion and a nearby ricochet. When he heard this first shot, Deputy White looked towards the highway and saw a flash (a second shot) from the passenger window of Crawford’s pickup truck as it was traveling on the highway. Both officers followed the truck, one flashed overhead lights and the truck driver (Gary Crawford) pulled over making no attempt to elude the officers. James Wilson, Jr., was the passenger in the truck and neither occupant was in any way uncooperative.

Gary Crawford and James Wilson, Jr., testified they were returning from a hunting trip and both had rifles on the seat pointing toward the floorboard. Both testified that James’ rifle fell and discharged the first time through the floorboard and that James retrieved the rifle and while he was attempting to unload it, the gun fired a second time through the passenger’s side window and into the air. Both men testified they had not discussed or attempted to aim any rifle at any person or vehicle on the night in question.

Both Gary and James were initially charged with discharging a firearm in public but the State subsequently entered a nolle prosequi as to Gary and the County Court dismissed the case against James. The trial court, indicating disbelief of the testimony of Gary Crawford, granted forfeiture of the truck. We reverse.

The point is not that Gary or James had to be believed that the gun was accidentally discharged but that the sheriff had the burden of proof to establish that the truck had been an instrumentality in the commission of a felony and the sheriff’s evidence is entirely insufficient for that purpose. There is no evidence that James knowingly, meaning intentionally, discharged his firearm, which, even if true, constitutes a misdemeanor under section 790.15, Florida Statutes (1981), and, not being a felony, is insufficient for forfeiture under section 932.701(2)(e), Florida Statutes (1981). Further, there is no evidence that James intended to, or did, commit a felony, i.e., that he made an aggravated assault on anyone or that he wantonly or maliciously shot within the vehicle. Further, even if James committed a felony in discharging his rifle, there is no evidence that Gary aided or abetted James as would be necessary under section 777.011, Florida Statutes (1981), in order for Gary to have been employing the truck as an instrumentality while aiding or abetting James in the commission of a felony, as contemplated by sections 932.-701(2)(e), Florida Statutes (1981), and as necessary in order to authorize the forfeiture of the truck under that statute. Gary’s mere presence when James committed a felony would be insufficient to incriminate Gary as an aider or abetter. The sheriff must show that the owner actually employed the truck as an instrumentality in the commission of a felony by the owner or that the owner employed the truck as an instrumentality while the owner was aiding or abetting someone else in the commission of a felony or that the owner had knowledge of, and consented to, or approved, such illegal use being made by someone else. See In re 36’ Uniflite, “Pioneer I,” Reg. No. FL 7894 AH, 398 So.2d 457 (Fla. 5th DCA 1981).

The judgment of forfeiture of the pickup truck is

REVERSED.

DAUKSCH, J., and FOXMAN, Associate Judge, concur.


author: JOANOS, Judge.

text:
    STATE of Florida, Appellant, v. Anthony P. MATTOX, Appellee.
    Nos. AM-234, AM-235.
    District Court of Appeal of Florida, First District.
    July 18, 1983.
    Rehearing Denied Jan. 5, 1984.
    Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellant.
    Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellee.
   JOANOS, Judge.

The State of Florida appeals from orders dismissing two informations. The two cases have been consolidated for appeal. We reverse.

Appellee Anthony P. Mattox (Mattox) was charged with three burglaries: the Boucher (Circuit Court No. 82-117 CF), Andrews (Circuit Court No. 82-118 CF) and Manly burglaries (Circuit Court No. 82-386 CF). The dismissal of the information in regard to the Boucher and Andrews cases only are involved in this appeal.

In the Boucher and Andrews eases, Mat-tox moved to dismiss pursuant to Rule 3.190(c)(4), Florida Rules of Criminal Procedure. As to the Boucher burglary, Mattox alleged, in essence, that the facts upon which the motion was based were that: the breaking and entering occurred between 12:05 p.m. and 8:35 p.m. on December 13, 1981; that latent fingerprints were lifted off broken glass located near the back door of the house; that the back door glass window had been broken during the same approximate time as the breaking and entering; that Boucher had never given Mat-tox permission to be inside his premises; a friend of Boucher’s had a key to the house; and that there is no other circumstantial or direct evidence connecting Mattox to the burglary. The State traversed this motion asserting that: Boucher had never given Mattox permission to be inside or outside his premises; Boucher is not in any way acquainted with Mattox; and the State denied the allegation pertaining to no other evidence as it intended to admit “Williams Rule type evidence” at trial.

As to the Andrews burglary charges, Mattox's motion alleged that: the breaking and entering of the house occurred between 1 p.m. on December 7, 1981, and 8:45 p.m. on December 8, 1981; that nothing was stolen; that the police found a latent print matching Mattox’s known print outside the windowsill of the dining room.window; the State cannot determine when the latent print was made; Andrews has never given Mattox permission to be inside her premises; and that there was no other circumstantial or direct evidence connecting Mattox with the burglary. The State’s traverse to this motion asserted that: it could prove that the fingerprint was placed there recently because it could be lifted and that a print outside of a windowsill will last a relatively short time because of weathering; that Andrews had not given Mattox permission to be inside or outside her premises; that Andrews was not in anyway acquainted with Mattox; and the State denied the assertion that it had no other evidence as it intended to admit “Williams Rule type evidence.”

In the meantime, the State had filed a notice in the Boucher case of its intent to offer evidence of the Andrews burglary at trial and in the Andrews case of its intent to offer evidence of the Boucher case. At some point in the Manly burglary case (not involved in this appeal) the trial judge heard a motion in limine and ruled that evidence of the Boucher and Andrews burglaries could not be received in the Manly trial. At a later time, the same trial judge when confronted with the motions in limine in the Boucher and Andrews cases thought he had already ruled on the matter, but nevertheless allowed the State to submit additional authority on the subject. Immediately following that, he heard argument on the motions to dismiss in the Boucher and Andrews cases. In the process of considering the motions to dismiss he allowed the State to present argument on the Williams rule evidence. Following this he took the matter under advisement and later entered the order appealed dismissing the Boucher and Andrews burglary informa-tions pursuant to the 3.190(c)(4) motion.

Following this, the State filed a “Motion to Reconsider: The Granting of Defendant’s Motion in Limine in Case 82-117 CF, 82-118 CF and 82-386 CF, Orders Granting Defendant’s Motion to Dismiss in Cases 82-117 CF and 82-118 CF and Notice of Supplemental Authority.” The case numbers set forth in the motion included the Boucher, Andrews and Manly burglary cases. After a hearing in which there was some discussion regarding a reconsideration of the motion in limine and a statement by the trial judge that the granting of the motion in limine and the dismissals of the Boucher and Andrews burglary cases could be appealed together, the trial judge entered an order denying the motion to reconsider.

Thus, while there is confusion in the record, it is apparent that the trial judge believed that he had granted the motion in limine as to all three cases and so did the parties.

We, therefore, have first reviewed the correctness of the trial judge’s determination on the Williams rule evidence and have found his decision to exclude the evidence of the other burglaries in each of the Boucher and Andrews burglary cases was not in error. The record reflects insufficient similarity among the three burglaries to warrant admission of evidence of any one of the burglaries to any one of the other burglary trials. See Williams v. State, 110 So.2d 654, 662 (Fla.1959).

However, despite the assumption that Williams rule evidence will not be admitted, we have determined that there was error in dismissing the Boucher and Andrews burglary informations.

The question that we have addressed in both cases is whether there is a material issue of fact in dispute or if the uncontro-verted facts establish a prima facie case of guilt. State v. Alford, 395 So.2d 201 (Fla. 4th DCA 1981). In our consideration, we have been required to view the allegations involved in a light most favorable to the State. State v. Davis, 243 So.2d 587 (Fla. 1971); State v. Johnson, 398 So.2d 500 (Fla. 3d DCA 1981). In doing so, unlike the standard employed at trial when the jury considers the evidence, we have resolved all inferences against the defendant. State v. Pettis, 397 So.2d 1150 (Fla. 5th DCA 1981); State v. Fort, 380 So.2d 534 (Fla. 5th DCA 1980). In reviewing the motions and traverses we have determined that the alleged evidence in each of the two cases contains uncontroverted facts, which establish a pri-ma facie case of guilt so as to overcome dismissal.

In each case, the allegations can be construed to show that the State plans to prove that: each burglary occurred at an approximate time; that defendant’s fingerprint was placed at the point of entry at the time of the burglary; that the fingerprints were in a location where one engaged in a burglary could have placed them; that the relative location of where the prints were found do not give rise to the reasonableness of prior access; and that the defendant had no authorization to be on the premises. We believe this alleged evidence is sufficient to overcome the motion to dismiss. See State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981); State v. Holder, 400 So.2d 162 (Fla. 3d DCA 1981).

In reaching this determination, we note the distinction between the circumstances here and those involved in the cases cited by Mattox. First, in nearly all of the cited cases, the fingerprint evidence was deemed insufficient after a trial on the matter. See e.g., Jaramillo v. State, 417 So.2d 257 (Fla.1982); Williams v. State, 308 So.2d 595 (Fla. 1st DCA 1975), cert. denied 321 So.2d 555 (Fla.1975); A.V.P. v. State, 307 So.2d 468 (Fla. 1st DCA 1975); Ivey v. State, 176 So.2d 611 (Fla. 3d DCA 1965). This difference is highlighted by the following quotation, which is applicable to the instant situation:

If the State’s evidence is all circumstantial, then whether it has carried its burden of excluding all reasonable hypotheses of innocence must be decided at the close of ail the evidence. To withstand a motion to dismiss, the State need show only a prima facie case.

State v. Upton, supra at 1015. (emphasis supplied)

Second, in each of the cited cases the fingerprints were found in a location where prior access was reasonable. (See, Williams v. State, supra).

While State v. Hayes, 333 So.2d 51 (Fla. 4th DCA 1976), cited by appellee, did involve a motion to dismiss, it suffers from the same infirmity as the other cases, in that the fingerprints were in a location where prior access was reasonable. Unlike Hayes, the State, here, has alleged its ability to produce evidence giving rise to inferences that the prints: were in a location where prior access was unreasonable; were at the place of entry; and were placed there at the approximate time of the burglary.

We, therefore, REVERSE the trial court’s orders that granted appellee’s motions to dismiss the two informations.

MILLS and THOMPSON, JJ., concur.


author: BOARDMAN, Judge.

text:
    Cleveland HILL, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 83-1019.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1983.
    Rehearing Denied Dec. 2, 1983.
   BOARDMAN, Judge.

Cleveland Hill, Jr., appeals the trial court’s denial of his motion for postconviction relief filed pursuant to rule 3.850, Florida Rule of Criminal Procedure. We reverse and remand.

Pursuant to a plea agreement, appellant pled guilty to obtaining property in return for a worthless check and was adjudicated guilty and placed on probation for three years, with the special conditions that he serve ninety days in jail and pay restitution and other specified costs.

Appellant’s motion for postconviction relief seeks withdrawal of his guilty plea on the grounds that (1) the trial court failed to comply with the sentencing portion of the plea agreement, and (2) appellant misunderstood the conditions of the proffered plea bargain and believed that his probationary period would be limited to one year. The record setting forth appellant’s plea colloquy refutes his contention that he misunderstood the conditions of the proposed probationary period, but we find merit in his assertion that the trial court departed from the plea bargain.

The record shows that at the plea hearing, the trial court announced its intention to impose probation, possible jail time, restitution, and costs of probation. At the subsequent sentencing hearing, however, the court imposed an additional condition that appellant pay a $2500 fine which had not been mentioned at the earlier plea hearing, which fine was to defer the cost of appellant’s incarceration. Appellant objected that he could not then pay the $2500 fine and was informed by the trial court that he would be given the first two years of his probationary period within which to make payment.

When presented with appellant’s rule 3.850 motion protesting the above departure from the plea bargain, the trial court held a nonevidentiary hearing and denied postcon-vietion relief on the basis of the court’s own recollection of appellant’s presentence negotiations and plea colloquy. The court expressed the belief that the transcript of these negotiations reflected discussion of the $2500 fine.

Our review of the record discloses no reference to the challenged fine at the plea hearing. Therefore, we submit that the trial court departed from the terms of the plea bargain in imposing the $2500 fine.

Accordingly, we REVERSE and REMAND to the trial court with directions to either strike the $2500 fine or allow appellant the opportunity to withdraw his guilty plea. Davis v. State, 308 So.2d 27 (Fla.1975); Newberry v. State, 421 So.2d 546 (Fla. 4th DCA 1982), voluntarily dismissed, 426 So.2d 27 (Fla.1983); Freeman v. State, 376 So.2d 294 (Fla. 2d DCA 1979).

OTT, C.J., and DANAHY, J., concur.

      . The order of probation directs appellant to pay “$250.00 to the Sheriff of Pinellas County to be deposited into the Pinellas County General Fund for general county purposes within 2 years of this date.” Because the $2500 fine orally assessed against appellant at sentencing was also payable within two years of its imposition, we presume this $250 amount to be an incorrect transcription of the original $2500 fine.


author: PER CURIAM.

text:
    Bonnie ATLAS, Appellant, v. CITY OF PEMBROKE PINES, Appellee.
    No. 82-1434.
    District Court of Appeal of Florida, Fourth District.
    Sept. 28, 1983.
    Rehearing Denied Dec. 28, 1983.
    Phillip Michael Cullen, III, Fort Lauder-dale, for appellant.
    Steven L. Josias of Josias and Goren, Fort Lauderdale, for appellee.
   PER CURIAM.

A default and final judgment were entered against the City of Pembroke Pines. Thereafter, the city filed a motion for relief from judgment, pursuant to Rule 1.540(b), Fla.R.Civ.P., which alleged that the judgment was void due to defective service of process. The motion was denied. Rather than appeal, the city filed a second, more elaborate motion for relief from judgment which reasserted the same grounds set forth in the first motion. The second motion was granted and this appeal ensued. We reverse.

A trial court is without jurisdiction to entertain a second motion for relief from judgment which attempts to relitigate matters settled by a prior order denying relief. Malicoat v. LaChappelle, 390 So.2d 481 (Fla. 4th DCA 1980); Perkins v. Salem, 249 So.2d 466 (Fla. 1st DCA 1971). The city attempts to distinguish this case from Mali-coat and Perkins by contending that its second motion — though not styled as such— was actually a motion for rehearing. Thus, it claims not to have taken the impermissible “second bite.” We do not agree. First, the motion’s substance and form do not comport with a motion for rehearing. But more importantly, an order denying a motion for relief from judgment, pursuant to Rule 1.540(b), Fla.R.Civ.P., is not subject to a motion for rehearing. Potucek v. Smeja, 419 So.2d 1192 (Fla. 2d DCA 1982).

Accordingly, the order granting relief from judgment is

REVERSED.

DOWNEY, GLICKSTEIN and HURLEY, JJ., concur.


author: HENDRY, Judge.

text:
    Prudence F. WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1715.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1983.
    Rehearing Denied Dec. 15, 1983.
    Samek & Besser and Lawrence Besser, Miami, for appellant.
    Jim Smith, Atty. Gen., and Michael Nei-mand, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   HENDRY, Judge.

Appellant Williams contests the denial of her motion to suppress her confession, the use of which led to her arrest and subsequent conviction of first degree grand theft. Because we find that appellant’s confession was wrongfully extracted by the law enforcement officers involved in this case, we reverse appellant’s conviction, suppress the confession, and remand for a new trial.

On Monday, February 22, 1982, Ms. Shirley Flagler, an assistant teller at County National Bank of South Florida, discovered that $95,000.00 was missing from a safe located in the main vault of the bank. An audit of the bank’s funds confirmed that there was a $95,000.00 shortage. The North Miami Beach Police and the Federal Bureau of Investigation (FBI) were notified. An investigation was begun immediately that night with interviews of all tellers who had been in the vault between Friday and Monday afternoon.

Appellant, a 24 year old worn an with no prior involvement with the police, was employed at the bank as a special services teller. On the previous Friday afternoon (the 19th), she had gone into the vault with a travelers check box to replenish her supply of travelers checks. The travelers checks were kept in a safe next to the safe from which the money was missing. The combinations to both safes were in the back of a Wells Fargo book located in the vault area. Appellant was alone in the vault for 20-30 minutes. On Fridays there was a two hour break between the time the bank closed for the afternoon and when it reopened for evening business. During that break that Friday, appellant went to her fiance’s office and to her parents’ home. Appellant related all of the foregoing to Detective Lopez and Agent Jerome at her initial interview with them on February 26, 1982. She denied taking the money.

On March 9, Agent Jerome and Detective Lopez went back to the bank to conduct a second interrogation of appellant. Mr. Larry Robinette, a bank vice-president, asked appellant to stay after work to talk to the officers. The interrogation began at 6:30 p.m. and was held in the bank’s conference room. Agent Jerome immediately read the Miranda warnings and gave appellant a “rights waiver” form to sign, which she did. The officers spent the first fifteen minutes asking general background questions and the next two hours on appellant’s duties at the bank. After approximately three hours of interrogation, appellant confessed that she stole the money. Appellant was asked if she would give a formal statement and she agreed. Agent Jerome wrote out a waiver which specifically stated that the confession was voluntary and that no promises or threats were made to induce her to confess. Appellant signed this document. A tape recorder was brought over to the bank from North Miami Beach Police headquarters. Appellant’s confession was taped, transcribed, and signed by appellant while she was still being held at the bank.

Not surprisingly, there was disputed testimony at the suppression hearing and at trial about what actually was said to appellant during the several hours she was being interrogated by the two law enforcement officers. All agreed that no one was allowed into the room, including appellant’s fiance and parents, until after she had confessed. Only the confession was taped; the interrogation was not.

Appellant testified at both the suppression hearing and at trial that she was told that she was under arrest, that the police had all the evidence on her and that they knew how she had committed the crime. She was shown a fingerprint and was told that it was her fingerprint which had been found on the safe from which the money was stolen. She stated that she was told that if she did not confess she would go to jail for twenty years for stealing the money and another five years for lying to an FBI agent; that she would go to jail that night and that no bond would be set for her release. She was told that none of this would happen, however, if she confessed; she could bond out of jail immediately; that things would be easier for her; that they would tell the court how helpful she had been, and that since this was her first offense she would probably be put on probation for five years. Appellant also testified that pictures of her fiance, 11 year old stepdaughter, and 23 month old son were brought into the conference room from her teller’s station. She was told it would be a shame to break up such a nice family by going to jail when she didn’t have to. She testified that she was told that if she did not confess, she would go to jail that night and would never see her baby again; that the child would be grown before she got out of jail; that there was no one willing or able to care for her baby so he might have to be put in a foster home, and that the child would suffer by seeing her in jail. Appellant testified that she confessed because she believed that she would not see her children again. She also testified that she, knew her fiance was outside waiting for her and that she asked to see him but was not allowed to until after she confessed.

Agent Jerome testified at the suppression hearing that Detective Lopez mentioned “something about fingerprints” but at trial he could not recall exactly what was said. He testified that Lopez told the appellant what maximum and minimum penalties could be imposed and that Lopez mentioned bond. He stated that he told appellant that her fiance was outside but asked her not to see him at that time because “it would break the continuity of the interview.” He admitted telling appellant that access to see her children would be dependent upon the rules of the particular institution where she was incarcerated but denied that he ever threatened appellant with the loss of her children. He stated that appellant was not under arrest until after she gave her confession; that until she confessed they only had a hypothesis of how the crime was committed, though he admitted that he and Detective Lopez told appellant that they “knew” how she got the money out of the vault and what she did with it thereafter. At trial, Agent Jerome stated that appellant was given Miranda warnings because this was the second time she was being interviewed, though he admitted that other tellers interviewed twice were not read Miranda warnings. He stated that he did tell appellant that if she confessed, he would tell the U.S. Attorney’s office about her cooperation. He denied saying that if she confessed things would be easier for her, but several other tellers testified that he used that phrase in interviews with them. Finally, Agent Jerome testified at the suppression hearing that if there were any photographs of appellant’s children in that conference room, they were brought in there by appellant in her purse. At trial, he testified that photographs, located at appellant’s teller station, were brought to them in the conference room by one of the bank employees.

Detective Lopez’s main testimony came at the trial although he did testify briefly at the suppression hearing as a defense witness. He admitted that he lied when he showed appellant the fingerprint and told her that it had been found on the safe from which the money was stolen. He denied telling appellant that she was going to jail, although he did admit saying that whoever’s fingerprints were found in that vault could go to jail. He also denied telling appellant that she could or could not get bond depending on whether she confessed. He stated that no one knew that appellant’s fiance was outside until after the confession and thus, appellant did not ask to see her fiance because she didn’t know that he was there. He stated that appellant’s children were never mentioned in the course of the interrogation and neither was there mention of access to see her children in the event she went to jail. He also stated that he saw photographs of appellant’s family at her teller station only; that there were no photographs in the conference room during the interrogation. He also admitted that a search of appellant’s fiance’s house and appellant’s safety deposit box failed to reveal the missing $95,000.00. In fact, the money has never been found.

It is established law that a confession should be excluded if the attending circumstances, or the declarations of those present at the making of the confession, are calculated to delude the prisoner as to his true position, or to exert improper and undue influence over his mind. Frazier v. State, 107 So.2d 16 (Fla.1958); Foreman v. State, 400 So.2d 1047 (Fla. 1st DCA 1981); State v. Beck, 390 So.2d 748 (Fla. 3d DCA 1980), rev. denied, 399 So.2d 1140 (Fla.1981). The burden of showing that a defendant’s statement was voluntarily made rests with the state and must be proved by a preponderance of the evidence. Brewer v. State, 386 So.2d 232 (Fla.1980); Wiley v. State, 427 So.2d 283 (Fla. 1st DCA 1983); Porter v. State, 410 So.2d 164 (Fla. 3d DCA 1981); Wimberly v. State, 393 So.2d 37 (Fla. 3d DCA), rev. denied, 402 So.2d 614 (Fla.1981). A determination by the trial court that a confession was freely and voluntarily made comes to the reviewing court with the same presumption of correctness which attends jury verdicts and final judgments. DeConingh v. State, 433 So.2d 501 (Fla.1983); Gilvin v. State, 418 So.2d 996 (Fla.1982); Stone v. State, 378 So.2d 765 (Fla.1979), cert. denied, 449 U.S. 986, 101 S.Ct. 407, 66 L.Ed.2d 250 (1980). The standard for reviewing the voluntariness of a confession is that it

“must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.... A confession can never be received in evidence where the prisoner had been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted.”

Bram v. United States, 168 U.S. 532, 542-543, 18 S.Ct. 183, 187, 42 L.Ed. 568, 573 (1897); Brewer v. State, 386 So.2d at 235, Foreman v. State, 400 So.2d at 1047.

In the case sub judice, the record reveals a course of conduct and statements which, each taken individually, might not vitiate a confession: deception, La Rocca v. State, 401 So.2d 866 (Fla. 3d DCA 1981) (polygraph examiner lied, confession voluntary); notify court of cooperation, Smith v. State, 422 So.2d 1065 (Fla. 1st DCA 1982); Bova v. State, 392 So.2d 950 (Fla. 4th DCA 1980) (not per se unlawful inducement to promise to tell of accused’s cooperation), modified on other grounds, 410 So.2d 1343 (Fla.1982); leniency, Hawkins v. Wainwright, 399 So.2d 449 (Fla. 4th DCA 1981) (statement that “things would be easier on the defendant if he told the truth” does not render a confession inadmissible); and some forms of mental distress, State v. Caballero, 396 So.2d 1210 (Fla. 3d DCA 1981) (mental distress not induced by outside sources but which originates from defendant’s own apprehensions will not invalidate a confession). On the other hand, proof of brutality, Porter v. State, 410 So.2d 164 (Fla. 3d DCA 1981), or promises not to prosecute if the defendant confesses, State v. Favaloro, 424 So.2d 47 (Fla. 3d DCA 1982); In Interest of K.H., 418 So.2d 1080 (Fla. 4th DCA 1982), rev. denied, 430 So.2d 452 (Fla.1983); Brown v. State, 413 So.2d 414 (Fla. 5th DCA 1982); Henthorne v. State, 409 So.2d 1081 (Fla. 2d DCA 1982), will vitiate a confession. When two or more of the suspect statements or courses of conduct are employed against a defendant, however, courts have found the confession to be involuntary and have suppressed its use at trial. Brewer v. State, 386 So.2d 232 (Fla.1980) (threats, promises of leniency and statements calculated to delude the appellant as to his true position); Gaspard v. State, 387 So.2d 1016 (Fla. 1st DCA 1980) (threats, lies, physical and mental exhaustion); Hawthorne v. State, 377 So.2d 780 (Fla. 1st DCA 1979) (appeal to defendant’s concern for her children, bond, exhaustion), appeal after remand, 408 So.2d 801 (Fla. 1st DCA), rev. denied, 415 So.2d 1361 (Fla.1982); Fillinger v. State, 349 So.2d 714 (Fla. 2d DCA 1977), cert. denied, 374 So.2d 101 (Fla.1979) (advise state attorney of cooperation, bond); Ware v. State, 307 So.2d 255 (Fla. 4th DCA) (no clear waiver of right to counsel, cooperation would mean less time away from family), cert. denied, 316 So.2d 286 (Fla.1975).

If appellant’s version of the interrogation, with its recitation of lies, threats, promises of leniency, and appeals to her as a mother, is correct then the confession must be suppressed as involuntary; as an unconstitutional abridgement of appellant’s fifth amendment and due process rights. The state must carry the burden of proving that these rights have not been violated. In form, of course, the state’s witnesses, Detective Lopez and Agent Jerome, deny her version of what went on in that room. In substance, however, their testimony, with crucial contradictions in some areas and so manifestly equivocal in other areas, confirms so many details that the conclusion is persuasive indeed that appellant’s version is the correct one. Certainly, the state has failed to prove by a preponderance of the evidence that appellant’s confession was voluntary. We do not find that other, circumstantial evidence against her to be so overwhelming that the constitutional error may be considered harmless. Palmes v. State, 397 So.2d 648 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981). Therefore, appellant’s confession must be suppressed.

It is imperative that the fundamental rights of an individual charged with a violation of the law be observed and protected by law enforcement officials and by the courts. On retrial of appellant, her statements and confession, or any evidence relating thereto, are inadmissible. Hawthorne v. State, 377 So.2d 780 (Fla. 1st DCA 1979), appeal after remand, 408 So.2d 801 (Fla. 1st DCA 1982), rev. denied, 415 So.2d 1361 (Fla.1982).

Reversed and remanded.

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

      . The procedural framework of this case was that a jury was selected and empanelled and then the suppression hearing was held outside the presence of the jury. When the motion was denied, the jury was brought in and the trial commenced immediately.

      . Because the issue was not raised on appeal, we decline to discuss any violations of appellant’s fourth amendment rights. Cf. Florida v. Royer, - U.S. -, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).

      . The crime scene technician testified that he was not able to lift any latent fingerprints at all.

      . But see contra Burch v. State, 343 So.2d 831 (Fla.1977), where the Court considered a startling recitation of lies, deceptions, threats and promises of leniency and still found the confession voluntary because Miranda warnings had been given and there was no physical coercion. In subsequent cases, however, the Court appears to recognize psychological coercion as grounds for vitiating a confession. Cf. DeConingh v. State, supra, and Brewer v. State, supra.


text:
    James Frank JORDAN, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 82-2543.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1983.
    Rehearing Denied Dec. 15, 1983.

      John H. Lipinski, Pollack, Komorowski & Headley, Miami, for appellant.
    Jim Smith, Atty. Gen., and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The prosecutor’s closing argument comments relating to the defendant dispensing drugs were not improper where the information charged the defendant with trafficking in heroin and cocaine (which, by definition, connotes dispensing), notwithstanding that the trafficking charge was based on the defendant being in possession of such drugs in excess of the minimum amounts set forth in Sections 893.135(b)l and (c)2, Florida Statutes (1981).

The defendant’s various contentions that the evidence was insufficient to support his convictions for trafficking in narcotics and carrying a concealed firearm are not properly preserved for appellate review where no motion for judgment of acquittal was made at the conclusion of the case. State v. Barber, 301 So.2d 7 (Fla.1974).

Affirmed.

      . Trafficking is defined as: “Trading or dealing in certain goods and commonly used in connection with illegal narcotic sales.” Black’s Law Dictionary 1340 (rev. 5th ed. 1979).


text:
    Leon Thomas CARANGI, Appellant, v. Rikki Lynn CARANGI, Appellee.
    No. 83-615.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1983.
    Rehearing Denied Dec. 15, 1983.
    Harvey D. Rogers, Miami, for appellant.
    Ira L. Dubitsky, Miami, for appellee.
    Before BARKDULL and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

That portion of the final judgment which awards attorney’s fees is reversed as there is no showing that appellant’s ability to pay fees is any greater than that of appellee. Poppe v. Poppe, 412 So.2d 38 (Fla. 3d DCA 1982); Pepper v. Pepper, 388 So.2d 1342 (Fla. 3d DCA 1980); Caldwell v. Caldwell, 383 So.2d 1115 (Fla. 3d DCA 1980). The judgment is otherwise affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Affirmed in part, reversed in part.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Barry D. NELSON, Appellant, v. STATE of Florida, ex rel. Gerald A. LEWIS, as Comptroller and Head of the Department of Banking and Finance, et al., Appellees. FRANKLIN CAPITAL CORP. and Harold Seligman, Appellants, v. STATE of Florida, ex rel. Gerald A. LEWIS, as Comptroller and Head of the Department of Banking and Finance, et al., Appellees.
    Nos. 83-203, 83-204.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 1983.
    As Corrected on Denial of Rehearing Dec. 12, 1983.
    Philip J. Snyderburn, Orlando, for appellant Nelson.
    Allan M. Lerner of Lerner & Harris, P.A., Fort Lauderdale, for appellants Franklin and Seligman.
    Charles L. Stutts, Asst. Gen. Counsel, Office of the Comptroller, Tallahassee, for ap-pellee State of Fla., ex rel. Gerald Lewis as Comptroller and Head of the Dept, of Banking and Finance.
   PER CURIAM.

AFFIRMED.

LETTS and GLICKSTEIN, JJ., concur.

ANSTEAD, C.J., concurs specially with opinion.

ANSTEAD, Judge,

concurring specially:

Appellants, three of twenty-one defendants accused of violations of the Florida Securities Act and the Mortgage Brokerage Act, challenge the state’s authority to prosecute them under the securities statute.

The purpose of the present Florida Securities Act, as with its predecessors, is to protect the public from fraudulent and deceptive practices. O’Neill v. State, 336 So.2d 699 (Fla. 4th DCA 1976); McElfresh v. State, 151 Fla. 140, 9 So.2d 277 (1942). Chapter 517 requires registration of securities. § 517.07, Fla.Stat. (1981). The only exemptions are for certain transactions where the buyers are adequately protected in other ways. See § 517.061, Fla.Stat. (1981). Registration will be denied or, once granted, revoked where the Department of Banking and Finance finds evidence of fraudulent representation or unfair business practices. § 517.111, Fla.Stat. (1981). Chapter 517 also requires the registration of those who deal in securities. § 517.12, Fla. Stat. (1981).

Appellee’s business consisted of selling mortgages in Florida real property in exchange for high-interest promissory notes. Appellants and their associates solicited private investments, minimum $5,000, for a common fund used to finance individual loans in return for notes and mortgages. The latter were executed in favor of a funding agent that assigned them to a corporate affiliate that reassigned its interest, in whole or in part, to the individual investors. Appellants and their associates selected the borrowers and administered the fund. For an additional fee, they also serviced the investors’ accounts.

In this case there can be no finding of subject matter jurisdiction without a determination that appellants were engaged in the sale of securities. Appellants were charged with violations of the statutory registration requirements, fraudulent business practices and false and misleading advertising. Appellants’ business involved the investment of money, by private individuals, in a common enterprise on the expectation of profits derived from the efforts of the promoters. In my view these activities fit within the classic definition of an investment contract enunciated in S.E.C. v. W.J. Howey, 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1943) and subsequently adopted by this court in Brown v. Rairigh, 363 So.2d 590 (Fla. 4th DCA 1978) and Le Chateau Royal Corp. v. Pantaleo, 370 So.2d 1155 (Fla. 4th DCA 1978). Just as clearly, an investment contract is a security under section 517.021(15), Florida Statutes (1981). Hence, in my view, the business activities of appellants fall within the purview of chapter 517 and, since none of the statutory exemptions apply, appellants are subject to prosecution for violations of the act.


author: DANAHY, Judge.

text:
    Wanda WRIGHT and Leland D. Wright, her husband, Appellants, v. Arnold SCHULTE, Jr., M.D., and Arnold Schulte, Jr., M.D., P.A., a professional association, Appellees.
    No. 82-2740.
    District. Court of Appeal of Florida, Second District.
    Oct. 14, 1983.
    Rehearing Denied Dec. 2, 1983.
    M. Blair Payne of Darby, Peele, Page & Bowdoin, Lake City, for appellants.
    John D. Shofi and James L. Eskald of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, Tampa, for appellees.
   DANAHY, Judge.

The plaintiffs in a medical malpractice suit appeal from an adverse final judgment entered after a jury verdict for the defendants. We reverse.

The plaintiffs brought this action to recover damages for the alleged negligence of Dr. Schulte in performing an abdominal hysterectomy on Wanda Wright. The plaintiffs claim that Dr. Schulte negligently cut and sutured Mrs. Wright’s right ureter while performing the hysterectomy.

At trial, the plaintiffs called Dr. Douglas R. Shanklin as their expert witness. The issue before us is whether the trial judge erred in refusing to allow Dr. Shanklin to testify as an expert. The doctor testified that he is a physician from Gainesville, Florida, a graduate of Syracuse University and the New York State College of Medicine, from which he received an M.D. in 1955. He then interned at Duke University Hospital in North Carolina. The first six months of his internship were in pathology and the second six months were a mixed internship of obstetrics and pathology.

Dr. Shanklin then served in the United States Navy and became one of three ward officers for obstetrics and gynecology. After his Navy service, Dr. Shanklin returned to Duke University and took some additional training in pathology. He then returned to Syracuse to finish his board qualifications in pathology. In 1960, he accepted an academic appointment at the University of Florida in Gainesville and served there for seven and one-half years before accepting a professorship of obstetrics and gynecology and pathology at the University of Chicago.

Dr. Shanklin testified that while at the University of Chicago, he taught residents in obstetrics and gynecology. During the course of his employment at the University of Chicago, he instructed students in the procedure known as a total abdominal hysterectomy. He said his teaching role was aimed at the residents, the young doctors, who were training for ultimate board certification in obstetrics and gynecology. Dr. Shanklin testified that he was frequently called on to render an opinion or to give advice to physicians who were performing gynecological surgical procedures.

In 1978, Dr. Shanklin left Chicago and returned to Gainesville, Florida, to serve as Director of Laboratories at a Gainesville hospital. In March of 1980, he went into private practice, predominantly in consul-tive pathology or forensic pathology.

Dr. Shanklin is the author of a number of articles published in medical journals and is senior editor of the Journal of Reproductive Medicine.

Specifically, Dr. Shanklin testified that he is familiar with the procedure known as a total abdominal hysterectomy. As a senior medical student he was second assistant on twenty-five to thirty such procedures. In the Navy, he was specifically responsible for about twenty-five or thirty abdominal hysterectomies. He was first assistant on perhaps forty more. With reference to the claim of the plaintiffs in this case, Dr. Shanklin testified that he refreshed his memory by checking out a number of textbooks and atlases on the subject of abdominal hysterectomies.

On cross-examination, Dr. Shanklin admitted that he is not a gynecological surgeon performing abdominal hysterectomies. He has no staff privileges at any hospitals in the Gainesville area. In short, he is not an operating surgeon. Despite Dr. Shank-lin’s impressive array of credentials, the trial judge refused to allow him to testify, commenting that “we can’t have a gynecologist testifying about how a surgeon should do surgery.” To the trial judge, a doctor who does not do surgery cannot be permitted to “sit in judgment” on a surgeon. In this the trial judge was clearly in error.

Section 768.45, Florida Statutes (1981), specifies who may testify as an expert in a medical malpractice action. The statute provides in part as follows:

Any health care provider may testify as an expert in any action if he:
1. Is a “similar health care provider” pursuant to paragraph (a) or (b); or,
2. Is not a similar health care provider pursuant to paragraph (a) or (b) but, to the satisfaction of the court, possesses sufficient training, experience, and knowledge to provide such expert testimony as to the acceptable standard of care in a given cause.

It is undisputed that Dr. Shanklin is not a similar health care provider as that term is defined in the statute. Under such circumstances, the trial judge must determine whether the proffered expert possesses sufficient training, experience, and knowledge to provide expert medical testimony as to the acceptable standard of care in a given cause. The trial judge in the case before us did not do this; he simply rejected Dr. Shanklin on the ground that he is not a surgeon and, therefore, was incompetent to testify as to the standard of care in a case involving alleged negligence in the performance of a surgical procedure.

Our supreme court has commented that the rule is very well settled that, to give an opinion on medical questions, one may be qualified by study without practice, or by practice without study. Copeland v. State, 58 Fla. 26, 50 So. 621 (1909). Florida courts have made it clear that one need not be of the same specialty or branch of medicine, yet may be qualified to give expert testimony on the standard of care. E.g., Chenoweth v. Kemp, 396 So.2d 1122 (Fla.981) (neurosurgeons may testify in suit against specialists who are board certified in gynecology and anesthesiology); Fetell v. Drexler, 422 So.2d 89, 90 (Fla. 3d DCA 1982) (board certified surgeon may testify in suit against radiologist); Mitchell v. Angulo, 416 So.2d 910 (Fla. 5th DCA 1982) (error to rely solely on the fact that a proffered witness does not practice the same specialty as the defendant); Hawkins v. Schofman, 204 So.2d 336 (Fla. 3d DCA 1967), 46 A.L.R.3d 270 (no personal experience in performing the operation in question, but knowledge gained through study and observation of such an operation the previous week); Musachia v. Terry, 140 So.2d 605 (Fla. 3d DCA 1962) (medical doctor may testify in suit against osteopaths). Cf. Caputo v. Taylor, 403 So.2d 551 (Fla. 1st DCA 1981) (pathologist not permitted to testify as to the standard of care in treating potential breast cancer patients). Other cases on this point are collected at Annot., 31 A.L.R.3d 1163 (1970), and Annot., 46 A.L.R.3d 275 (1972).

We also find persuasive authority in an opinion from another jurisdiction dealing with a very similar situation. Radman v. Harold, 279 Md. 167, 367 A.2d 472 (1977). That case also involved alleged negligence in the performance of an abdominal hysterectomy. Plaintiffs offered an expert witness who was a certified specialist in internal medicine with many years of experience in his field, but who was neither a gynecologist nor a surgeon. The trial judge ruled that the proffered expert was not qualified to give an opinion or to pass judgment upon a gynecologist and surgeon. The Maryland court held that the trial judge applied an erroneous rule of law. The following portions of the court’s opinion seem particularly appropriate to the instant case:

[A] witness may be competent to express an expert opinion if he is reasonably familiar with the subject under investigation, regardless of whether this special knowledge is based upon professional training, observation, actual experience, or any combination of these factors....
... A witness is qualified to testify as an expert when he exhibits such a degree of knowledge as to make it appear that his opinion is of some value, whether such knowledge has been gained from observation or experience, standard books, maps of recognized authority, or any other reliable sources. The knowledge of an expert in any science or art would be extremely limited if it extended no further than inferences from happenings within his own experience. His testimony is admitted because it is based on his special knowledge derived not only from his own experience, but also from the experiments and reasoning of others, communicated by personal association or through books or other sources.
... [T]he mere fact that a person offered as a witness has not been personally involved in the activity about which he is to testify does not, as such, destroy his competency as an expert....
... [W]e perceive no reason why a person who has acquired sufficient knowledge in an area should be disqualified as a medical expert merely because he is not a specialist or merely because he has never personally performed a particular procedure....
We note that the great majority of courts in other jurisdictions which have considered the issue also have-concluded that while the witness must have sufficient familiarity with the particular medical technique involved in the suit, he need not have personally performed the procedure or be a specialist in the area.

367 A.2d at 474, 475.

We hold, therefore, that the trial judge erred in refusing to permit Dr. Shanklin to testify as an expert in this case. We reject the defendant’s argument that this court should nevertheless affirm because the plaintiffs did not make a proffer of Dr. Shanklin’s testimony. Such a proffer is not necessary in cases where the proffer would be a useless ceremony or where the court indicates that such offer would be unavailing or that the witness is incompetent. Seeba v. Bowden, 86 So.2d 432 (Fla. 1956); § 90.104(l)(b).

REVERSED and REMANDED for a new trial.

HOBSON, A.C.J., and BOARDMAN, J., concur.