author: BOYD, Chief Justice.

text:
    Joseph J. NODAR, Petitioner, v. Patricia GALBREATH, Respondent.
    No. 63724.
    Supreme Court of Florida.
    Dec. 13, 1984.
    Rehearing Denied Feb. 26, 1985.

      James Cary Jacobson, Scott Richard Gill and Michael Eliot Rehr of Jacobson & Gott-lieb, Hollywood, for petitioner.
    Ronald P. Gossett of Hodges, Gossett, McDonald, Gossett & Crawford, Hollywood, for respondent.
    Talbot D’Alemberte, L. Martin Reeder, Jr. and Thomas R. Julin of Steel, Hector & Davis, and Richard J. Ovelmen, Gen. Counsel, Miami, amicus curiae, for The Miami Herald Pub. Co.
    George Rahdert of Rahdert, Anderson & Richardson, St. Petersburg, amicus curiae, for Times Pub. Co.
   BOYD, Chief Justice.

This cause is before the Court on petition for review of the decision of the district court of appeal in Nodar v. Galbreath, 429 So.2d 715 (Fla. 4th DCA 1983). The district court affirmed a judgment for compensatory and punitive damages for the tort of defamation. The district court’s decision conflicts with past decisions of this Court. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. We hold that the statements found to be defamatory by the jury were conditionally privileged under Florida law and that the plaintiff failed to prove express malice. We therefore quash the district court decision and order reversal of the judgment.

The complaint alleged that defendant/petitioner Joseph J. Nodar committed a slander of the plaintiff/respondent Patricia Galbreath by making certain remarks, heard by others, impugning her professional ability. The plaintiff is a public high school teacher. Prior to and at the time of the communication charged as defamatory, the son of the defendant was a student in a class taught by the plaintiff. The class was a special tenth-grade English class for gifted students. The publication alleged as having been defamatory was made at a meeting of the governing board of the Bro-ward County school district, specifically a portion of the school board meeting specially set aside for receiving the comments of members of the public. Attached to the complaint was a transcript of petitioner’s statement to the school board, the most pertinent parts of which are set out in the footnote.

The record shows that the defendant was dissatisfied with the instruction his son was receiving in the class and believed that it was not in accord with the established curriculum for the tenth-grade gifted English class. The theory of the complaint was that the publication was a false and defamatory statement tending to impugn plaintiff’s abilities in connection with her business or profession and thus was slander per se. A second count alleged that the statements were made with express malice and sought punitive damages. The jury found the remarks defamatory and maliciously made and returned verdicts for $5,000 compensatory damages and $5,000 punitive damages.

By motion to dismiss and by answer to the complaint the defense raised issues of qualified privilege, the lack of sufficient allegations of malice, the so-called “constitutional privilege” relating to public officials, public figures, and public concerns, and the lack of defamatory meaning in the communication. Another issue which was argued by the parties at trial was whether the statements made by the defendant at the school board meeting were statements of fact or expressions of opinion. Through special verdict interrogatories the trial court submitted to the jury the questions of (1) whether the statements were fact or opinion; (2) whether the defendant had a qualified privilege; and (3) whether he abused or lost the privilege due to express malice. The jury found that the statements were matters of fact, that the defendant when he spoke had a qualified privilege, but that he exceeded the bounds of the privilege because of his malice toward the teacher.

On appeal the district court affirmed. The court held that (1) it was not necessary to decide whether plaintiff was a public official for purposes of the “constitutional privilege” of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), because defendant as a parent addressing a school board on behalf of his son had a qualified privilege and received the benefit of that privilege at trial — the court reasoned that regardless of whether the “constitutional privilege” or the common-law qualified privilege applied, the plaintiff in order to recover would in either case have to prove malice — (2) that the trial court was wrong to submit to the jury the question of whether the defendant’s statements were assertions of fact or expressions of opinion, but found the error obviated since the jury found them to be assertions of fact, the correct determination in the district court’s view; (3) that there was no reason to disturb the jury’s determination not only that the defendant made defamatory statements, but that he made them maliciously so as to forfeit the privilege attaching to the occasion of his remarks.

Petitioner does not argue to this Court that his statements were non-defamatory as a matter of law. Petitioner first argues that the trial court should have held respondent to be a “public official” under New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and thus should have dismissed the lawsuit or granted' summary judgment or a directed verdict on the ground of the failure of the plaintiff to plead or prove that the defendant made the statements knowing them to be false or with reckless disregard of whether or not they were true. As was stated above, the district court of appeal found that there was no need to decide whether the trial court had erred in not declaring the plaintiff to be a public official because the plaintiff had to prove “malice” in either case.

Petitioner correctly points out that the district court failed to recognize that the “actual malice” necessary to overcome the “constitutional privilege” of New York Times Co. v. Sullivan is different from the express malice necessary to avoid the common-law qualified privilege. The elements of “actual malice,” and the standard of proof, differ from those of express malice. “Actual malice,” which under federal constitutional law must be shown before a public official or public figure may recover for defamation relating to a matter of his official conduct or of public concern, consists of knowledge of falsity or reckless disregard of truth or falsity, and must be shown by clear and convincing evidence. Express malice under the common law of Florida, necessary to overcome the common-law qualified privilege, is present where the primary motive for the statement is shown to have been an intention to injure the plaintiff. See Loeb v. Geronemus, 66 So.2d 241 (Fla.1953); Montgomery v. Knox, 23 Fla. 595, 3 So. 211 (1887). The plaintiff need only show this fact by a preponderance of the evidence, the ordinary standard of proof in civil cases. Thus the district court erred in concluding that the trial court’s ruling on the “public official” question made no difference to the defendant’s claim of privilege.

Petitioner argues that respondent is a public official and that the case is governed by the “actual malice” standard of New York Times Co. v. Sullivan. Where this defense is raised in a defamation case, the judicial characterization of the plaintiff as a public official or public figure has far-reaching consequences. The New York Times rule places a very heavy burden of proof upon the public official or public figure who seeks redress for defamation from one who criticizes or discusses the official or public conduct of the plaintiff. In New York Times the Court held that “constitutional guarantees require ... a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” 376 U.S. at 279-80, 84 S.Ct. at 725-26. It has been said of the New York Times rule: “What the New York Times rule ultimately protects is defamatory falsehood. No matter how gross the untruth, the New York Times rule deprives a defamed public official of any hope for legal redress without proof that the lie was a knowing one, or uttered in reckless disregard of the truth.” Rosenblatt v. Baer, 383 U.S. 75, 92, 86 S.Ct. 669, 679, 15 L.Ed.2d 597 (1966) (Stewart, J., concurring).

In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the Supreme Court rejected the argument that the New York Times rule must apply not only to public officials and public figures but also to private persons defamed in the course of media publications or broad-easts reporting or commenting on or discussing matters of public interest. The Court observed that the purpose of the New York Times rule was to remedy the chilling effect which the common-law rule of strict liability for libel and slander might have on the uninhibited vigor of a free press. The Court then noted: “And it exacts a correspondingly high price from the victims of defamatory falsehood. Plainly many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test.” 418 U.S. at 342, 94 S.Ct. at 3008.

In Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966), the Court discussed the meaning of “public official” for purposes of the New York Times constitutional privilege as follows:

The motivating force for the decision in New York Times was twofold. We expressed “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that [such debate] may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” 376 U.S., at 270 [84 S.Ct., at 720] (Emphasis supplied.) There is, first, a strong interest in debate on public issues, and, second, a strong interest in debate about those persons who are in a position significantly to influence the resolution of those issues. Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized. It is clear, therefore, that the “public official” designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.”

383 U.S. at 85, 86 S.Ct. at 675-76 (footnote omitted). The Court added that New York Times standards apply “[wjhere a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees,” 383 U.S. at 86, and that it is the position itself that must invite public scrutiny, “entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy.” 383 U.S. at 87 n. 13.

Guided by these principles, we cannot conclude that one who accepts a position as a teacher in a public high school thereby effects the same kind of surrender of the right to vindicate defamation as does one who seeks or accepts an elected or policymaking position with a public body or government institution. It should be remembered that the public official and public figure categories both serve the same purpose of preserving a free press. The plaintiff in Gertz v. Robert Welch, Inc. was a widely known lawyer criticized for his conduct of a somewhat well publicized court case and was held to be a private person. The parties have cited numerous cases, decided by courts in Florida and in other jurisdictions, dealing' with questions of whether specific public officers and employees are to be deemed “public officials” under New York Times. Petitioner has not cited any binding authority for the proposition that the plaintiff here was a public official. It is enough to say that we decline to so characterize a public high school English teacher.

Because plaintiff was not a public official, New York Times does not apply. However, there are constitutional limits on defamation recovery even when the plaintiff is neither a public official nor a public figure. Gertz v. Robert Welch, Inc. Respondent argues that these limitations under Gertz protect only those defamation defendants who are associated with the organized communications media. It is true that looking strictly at the facts of the case, Gertz appears to be limited to the situation of the organized or institutional media defendant. We believe, however, that the constitutionally protected right to discuss, comment upon, criticize, and debate, indeed, the freedom to speak on any and all matters is extended not only to the organized media but to all persons. If common-law remedies for defamation are to be constitutionally restricted in actions against media defendants, they should also be restricted in actions against private, non-media speakers and publishers.

In Gertz v. Robert Welch, Inc., the Court held that the states are free to establish their own standards of responsibility of news media defendants to defamed private persons, so long as they neither impose liability without fault nor award presumed damages in the absence of actual malice. This Court, in a case involving a libel suit against a newspaper, has recently held that a private plaintiff seeking recovery based on a false and defamatory news story need not prove “actual malice” but must establish negligence. Miami Herald Publishing Co. v. Ane, 458 So.2d 239 (Fla.1984). We need not reach the question of how the negligence standard applies in this case— the question was not raised below and has not been briefed — because we find that the case is properly decided under Florida common-law principles of qualified privilege.

Petitioner argues that his remarks were privileged as a matter of law. We find that there are several legal grounds for holding that the defendant’s remarks were made upon a conditionally privileged occasion.

“One who publishes defamatory matter concerning another is not liable for the publication if (a) the matter is published upon an occasion that makes it conditionally privileged and (b) the privilege is not abused.” Restatement (Second) of Torts § 593 (1976). The law of Florida embraces a broad range of the privileged occasions that have come to be recognized under the common law. See Rahdert & Snyder, Rediscovering Florida’s Common Law Defenses to Libel and Slander, 11 Stetson L.Rev. 1 (1981). “A communication made in good faith on any subject matter by one having an interest therein, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, even though it contains matter which would otherwise be actionable, and though the duty is not a legal one but only a moral or social obligation.” 19 Fla.Jur.2d Defamation and Privacy § 58 (1980). See Abraham v. Baldwin, 52 Fla. 151, 42 So. 591 (1906).

This general rule of privilege finds expression in several established common-law legal grounds for holding that the defendant’s statements to the school board were protected by a qualified privilege. The remarks of the defendant, addressed in person to a school board at a school board meeting concerning the curriculum and instruction in an English class at a public high school in which his son was enrolled and his son’s difficulties with the class clearly came within the scope of the privilege based on mutuality of interest of speaker and listener. See Johnson v. Langley, 247 Ky. 387, 57 S.W.2d 21 (1933). The concern of a parent for the welfare of his child provides a privilege for the occasion of speaking to one having the power or duty to take action for the benefit of the child. Restatement (Second) of Torts, § 597 (1976).

Another ground for holding that the statement was conditionally privileged would be that the statement was made for the protection of the recipient’s interest in receiving information on the performance of its employee. See Restatement (Second) of Torts § 595 (1976). In this connection, the value of the defendant’s defamatory information to the school board in overseeing the operation of the public schools must be weighed against the extent of the harm likely to be done to the plaintiff’s reputation as a result of the communication. L. Eldredge, The Law of Defamation § 86 at 461 (1978). Under the American Law Institute’s approach, the interest of the school board in the performance of a teacher, its employee, would give rise to a privilege in another to provide information concerning that performance even without a legal duty or a family relationship and even though the information is not requested but merely volunteered, if the publication is “within the generally accepted standards of decent conduct.” Restatement (Second) of Torts § 595 (1976). Under the common law of Florida, a communication to an employer regarding his employee’s performance is conditionally privileged, and the mode, manner, or purpose of the communication would go to the question of abuse or forfeiture of the privilege. Analogous situations include communications for bona fide commercial purposes where the interest to be protected is the recipient’s. See, e.g., Leonard v. Wilson, 150 Fla. 503, 8 So.2d 12 (1942); Putnal v. Inman, 76 Fla. 553, 80 So. 316 (1918); Coogler v. Rhodes, 38 Fla. 240, 21 So. 109 (1897); Montgomery v. Knox, 23 Fla. 595, 3 So. 211 (1887).

Another recognized legal ground for holding that the defendant’s statements were privileged is that they were the statements of a citizen to a political authority regarding matters of public concern, i.e., the school curriculum and the performance of a public employee. Coogler v. Rhodes; Moody v. Crist, 287 So.2d 412 (Fla. 2d DCA 1973). All of these grounds of qualified privilege have existed in the law of Florida for many generations and have served to provide broad protection for freedom of speech and of the press long before the creation of the remedy fashioned in New York Times v. Sullivan.

Where the circumstances surrounding a defamatory communication are undisputed, or are so clear under the evidence as to be unquestionable, then the question of whether the occasion upon which they were spoken was privileged is a question of law to be decided by the court. Abraham v. Baldwin, 52 Fla. 151, 42 So. 591 (1906). Here the circumstances and content of the statement were clear and undisputed: Therefore the defendant’s statements to the school board were quali-fiedly privileged as a matter of law and the trial judge erred in submitting the question of privilege to the jury. The trial court should have instructed the jury that the statements were made on a privileged occasion.

The legal conclusion that the defendant’s remarks were privileged brings us to the question of express malice. If the statements were made without express malice — that is, if they were made for a proper purpose in light of the interests sought to be protected by legal recognition of the privilege — then there can be no recovery. The determination that a defendant’s statements are qualifiedly privileged eliminates the presumption of malice attaching to defamatory statements by law. The privilege instead raises a presumption of good faith and places upon the plaintiff the burden of proving express malice — that is, malice in fact as defined by the common-law doctrine of qualified privilege.

In cases of qualifiedly privileged publications the presumption which attends cases not so privileged of malice from the publication of libelous language does not prevail; the burden of proof is changed, and, in order for the plaintiff to recover, he is called upon affirmatively and expressly to show malice in the publisher. This malice may be inferred from the language itself, or may be proven by extrinsic circumstances. While the malice may be inferred from the communication, it is not inferable from the mere fact that the statements are untrue.

Coogler v. Rhodes, 38 Fla. at 249, 21 So. at 112.

As has already been stated, the jury found that the petitioner’s statements were made with malice so that the privilege was lost and the defendant liable for defamation. Petitioner argues that under the evidence his statements were non-malicious expressions of opinion as a matter of law, that the trial court erred in improperly excluding evidence relevant to the issue of malice, and that the jury was improperly instructed on the issue of malice. Petitioner is correct in all three arguments. Because we find that the evidence of express malice was legally insufficient to overcome the qualified privilege, we need not address the trial errors which would otherwise entitle petitioner to a new trial.

The evidence was insufficient to show express malice and there should have been a directed verdict on this ground. There was some confusion below about the concept of express malice, the trial court giving the jury, the definition from Montgomery v. Knox: “ill will, hostility, evil intention to defame and injure.” Where a person speaks upon a privileged occasion, but the speaker is motivated more by a desire to harm the person defamed than by a purpose to protect the personal or social interest giving rise to the privilege, then it can be said that there was express malice and the privilege is destroyed. Strong, angry, or intemperate words do not alone show express malice; rather, there must be a showing that the speaker used his privileged position “to gratify his malevolence.” Myers v. Hodges, 53 Fla. 197, 213, 44 So. 357, 362 (1907). See also Sussman v. Damian, 355 So.2d 809 (Fla. 3d DCA 1977). If the occasion of the communication is privileged because of a proper interest to be protected, and the defamer is motivated by a desire to protect that interest, he does not forfeit the privilege merely because he also in fact feels hostility or ill will toward the plaintiff. Coleman v. Newark Morning Ledger Co., 29 N.J. 357, 149 A.2d 193 (1959); Restatement (Second) of Torts §§ 599, 603 (comment a) (1976). The incidental gratification of personal feelings of indignation is not sufficient to defeat the privilege where the primary motivation is within the scope of the privilege. See Boston Mutual Life Insurance Co. v. Varone, 303 F.2d 155 (1st Cir.1962); Fahr v. Hayes, 50 N.J.L. 275, 13 A. 261 (1888); Craig v. Wright, 182 Okla. 68, 76 P.2d 248 (1938).

The plaintiffs proof of malice consisted of the tone of the defamatory words themselves and the behavior of the defendant over a period of several months before he made his remarks at the school board meeting. Plaintiff’s counsel at trial relied upon evidence of defendant’s repeated complaints about his son’s teacher and argued that they demonstrated “harassment” of the teacher and hostility towards her.

The words themselves, we believe, are not so extreme as to demonstrate express malice. Petitioner merely said that the teacher had harassed and verbally abused his son, that she was unqualified to teach the course, and that her performance as a teacher was victimizing his son. While we must accept the unchallenged conclusion of the jury that these words were defamatory, the words do not inherently demonstrate express malice. The accusation that the teacher gave the student a poor mark in retaliation for the father’s complaints about her teaching, while clearly capable of stating defamatory meaning, does not show express malice. Examples of cases where the false and defamatory words themselves were so extreme as to intrinsically show express malice are Loeb v. Geronemus, 66 So.2d 241 (Fla.1953) (defendants said plaintiff was guilty of evil conduct, was of low moral character, was a disgrace, a troublemaker, was not respectable, had been compelled to leave Chicago) and Brown v. Fawcett Publications, Inc., 196 So.2d 465 (Fla. 2d DCA 1967) (defendant said plaintiff was a murderer, rapist, and sodomite).

The fact that the defendant’s remarks to the school board were preceded by many months of personal conversations, telephone calls, and letters to the teacher and her superiors does not demonstrate express malice. Indeed, it seems to us that this evidence tends to support rather than negate the claim of privilege, as it shows that defendant tried to seek redress of his grievances through private communications before he publicly revealed his complaints at the school board meeting. The series of personal visits, telephone calls, and letters, far from exhibiting a pattern of malicious harassment, demonstrates a degree of parental concern for the effectiveness of public schools which our state, through its courts of law, should attempt to encourage rather than discourage.

We therefore hold that the plaintiff’s evidence was insufficient as a matter of law to carry the burden of proving express malice. We are not substituting our judgment for that of the jury; the evidence was legally insufficient and the jury was misled by inadequate instructions and an improper exclusion of relevant testimony.

For the foregoing reasons, we quash the decision of the district court of appeal and remand with directions that the judgment be reversed and a directed verdict be entered for the petitioner/defendant.

It is so ordered.

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

ADKINS and OVERTON, JJ., dissent.

      . Although the entire statement provides a context which is important to an understanding of the statements, in the interest of brevity we provide only the portions said to be defamatory. These excerpts are but a small fraction of the entire statement:
      We expressed our concerns ábout the curriculum of the English class, the gifted English class, explained to them what was going on in the way of an education for these children, including my son, the harassment my son has been receiving from this particular teacher, because of our investigation or inquiry as to his grades and why his grades are going down. He has been harassed since then, he has been abused by her verbally, and his grades have been dropping.... My son is being victimized by these two teachers.... Now, there is a lot of money funded for this program and, for example, my son, we pay for his books that he has to bring into class to read, we pay for his pencils, we pay for his paper, and the only thing he gets is an unqualified teacher, that's all he’s got, and that’s all the rest of the children in that class have — an unqualified teacher....

      . We recently declined to hold that a defamation plaintiff who is neither a public official nor a public figure should be required to prove "actual malice" under New York Times in order to recover. Miami Herald Publishing Co. v. Ane, 458 So.2d 239 (Fla.1984).

      . Petitioner relies on Palm Beach Newspapers, Inc. v. Early, 334 So.2d 50 (Fla. 4th DCA 1976). The fact that the plaintiff there was the elected Superintendent of Public Instruction for Palm Beach County School District illustrates the distinction we draw. Petitioner also cites the pre-New York Times decision in White v. Fletcher, 90 So.2d 129 (Fla.1956). There a local civil service board member criticized a police officer and the remarks were held qualifiedly privileged, which has different consequences from the "constitutional privilege" of New York Times. We recently held that a police officer is a public official for purposes of the New York Times constitutional privilege. Smith v. Russell, 456 So.2d 462 (Fla.1984). However, nothing in the reasoning underlying that decision compels the conclusion that a public school teacher is a public official.

      . A communication, although it contains cri-minating matter, is privileged when made in good faith upon any subject in which the party communicating has an interest, or in reference to which he has a right or duty, if made to a person having a corresponding interest, right or duty, and made upon an occasion to properly serve such right, interest or duty, and in a manner and under circumstances fairly warranted by the occasion and the duty, right or interest, and not so made as to unnecessarily or unduly injure another, or to show express malice.

        Abraham v. Baldwin, 52 Fla. at 155, 42 So. at 592.

      . Yet another arguable ground would be the privilege of every person to express to other persons his fair comment and criticism on any public, governmental, political, social, or cultural matters. Gibson v. Maloney, 231 So.2d 823 (Fla.1970). White v. Fletcher, 90 So.2d 129 (Fla.1956); Abram v. Odham, 89 So.2d 334 (Fla.1956); McClellan v. L’Engle, 74 Fla. 581, 77 So. 270 (1917). Although we recently said that there is no qualified privilege "to defame a private person merely because the defamatory communication is directed to a matter of public or general concern,” Miami Herald Publishing Co. v. Ane, at 241, we acknowledged that past cases had recognized the privilege of fair comment where there were "additional factors.” We need not decide whether this case presents such additional factors because there are numerous other grounds of privilege.

      . Upon submission to the jury of the question of whether the statements were assertions of fact or expressions of opinion, the jury found them to be statements of fact. The district court said this question should have been decided by the court as a matter of law but found the error harmless because the jury’s determination, in its view, was correct. Under any plain, reasonable understanding of the terms "fact” and "opinion,” it is clear that the defendant's remarks contained both assertions put forth as facts known to the speaker and conclusions drawn or judgments made by the speaker. The only importance of this issue lies in the fact that some authorities hold that the privilege of fair comment does not protect false and defamatory assertions of fact. See, e.g., Miami Herald Publishing Co. v. Ane, 458 So.2d 239 (Fla.1984). As the discussion in text has already shown, however, there are numerous other grounds of qualified privilege under which mistakes of fact are protected. Petitioner’s argument invokes the doctrine of qualified privilege in its broad sense, and it is on this ground that we rest our decision.

      . The evidentiary ruling was the refusal of the court to allow the defendant to testify concerning statements made to him by his son about the plaintiffs performance. The testimony was excluded on the ground of hearsay. To be hearsay, evidence must be "offered in evidence to prove the truth of the matter asserted.” § 90.-801, Fla.Stat. (1981). Petitioner says the ruling was wrong because his testimony concerning what his son had told him was offered not to prove the truth of the matters contained in his son’s statements but merely to establish that his son had indeed told him about the teacher's conduct and the impact of these reports on the defendant’s state of mind. Petitioner argues that his state of mind about the teacher’s conduct was relevant to the question of whether he had reasonable grounds to believe the statements he subsequently made before the school board. We agree that the exclusion of the testimony as hearsay was error. The question of whether petitioner had reason to believe what he said to the school board was relevant to the question of express malice. Montgomery v. Knox, 23 Fla. 595, 3 So. 211 (1887). "If that evidence showed the belief to be a reasonable one, such as would have entered the mind of an impartial person weighing it carefully, he was justified in his belief, and the mistake in the belief would not be visited upon him as implying express malice. On the other hand, the unreasonableness of the belief attending admission of falsity, while evidence of malice, would not necessarily show express malice.” Id. at 607, 3 So. at 217. Although legal malice is presumed from the publication of defamatory matter, "evidence may be, and should be, received to show a less degree of malice and an absence of wanton intention to injure.” Jones, Varnum & Co. v. Townsend’s Administratrix, 21 Fla. 431, 442-43 (1885). Where qualified privilege is raised as a defense and the plaintiff attempts to show malice-in-fact, then the absence thereof is of course also an issue on which relevant evidence should be admitted. If the defendant proffers evidence of the extrajudicial words of another as providing the reason for his belief in the matter charged as defamatory, such evidence should not be excluded as hearsay. Id. at 447-48.

      . The challenged jury instruction defined the concept of express malice as follows:
      It is malicious to make a false statement concerning another with ill will, hostility, or evil intention to defame and injure.
      Although based on the definition given in Montgomery v. Knox, the instruction added the disjunctive "or” which is not present in Montgomery. 23 Fla. at 606, 3 So. at 217. The addition of the word "or” had the effect of allowing the jury to find express malice upon a showing of any of the three elements given. Although the Montgomery case, even without the "or,” is not very enlightening about what constitutes express malice, the pertinent authorities on the subject, discussed in the text of this opinion following this footnote, show that the gravamen of express malice is the abuse of a privileged occasion by improper motives on the part of the speaker. The instruction was inadequate to fully apprise the jury of what would show express malice.


source: Caselaw Access Project

author: PER CURIAM. ADKINS, Justice,

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Willie WATTS, Respondent.
    No. 64629.
    Supreme Court of Florida.
    Jan. 17, 1985.
    Jim Smith, Atty. Gen., and Richard A. Patterson and Gary L. Printy, Asst. Attys. Gen., Tallahassee, for petitioner.
    Michael E. Allen, Public Defender and Charlene V. Edwards, Asst. Public Defender, Tallahassee, for respondent.
   PER CURIAM.

We have for review Watts v. State, 440 So.2d 505 (Fla. 1st DCA 1983), which expressly and directly conflicts with decisions of other district courts of appeal and this Court. Art. V, § 3(b)(3), Fla.Const.

Defendant was adjudged guilty and concurrently sentenced on two counts of possession of prisonmade knives. The First District Court of Appeal held that Watts was adjudged guilty on one count too many. We agree, but for different reasons.

The district court noted that defendant’s possession of two knives was simultaneous in time and essentially simultaneous in space and therefore the multifaceted offense must result in a single prosecution sentence. In so holding the court adopted the “chronological and spacial relationships” test espoused by the Fifth District Court of Appeal in Castleberry v. State, 402 So.2d 1231 (Fla. 5th DCA 1981), to determine whether a multifaceted offense may result in a single or multiple prosecution unit. Watts v. State, 440 So.2d 505, 511 (Fla. 1st DCA 1983). The court explicitly refused to apply the reasoning used by the Second District Court of Appeal in State v. Grappin, 427 So.2d 760 (Fla. 2d DCA 1983), to determine whether a defendant can be convicted of two offenses for two acts which violate one statute. Id. at 510. However, subsequent to the First District Court of Appeal decision in Watt, we adopted both the result and reasoning of the Second District Court of Appeal in Grappin. Grappin v. State, 450 So.2d 480 (Fla.1984). Thus we must apply the rational of Grappin to the case at bar.

In Grappin, we held that the unlawful taking of two or more firearms during the same criminal episode is subject to separate prosecution and punishment under the theft statute as to each firearm taken. Grappin was prosecuted under section 812.-014(2)(b)(3), Florida Statutes (1981), which reads as follows:

(b) It is grand _theft of the second degree and a felony of the third degree, punishable as provided in §§ 775.082, 775.083 and 775.084, if the property stolen is:
3. A firearm.

(Emphasis supplied.) We reasoned that Grappin may be charged in a five-count information with five thefts because the article “a” prefaced firearm. We noted that the use of the article “a” in reference to “firearm” in section 812.014(2)(b)3 clearly shows that the legislature intended to make each firearm a separate unit of prosecution. Id. at 482. We specifically contrasted the article “a” with the article “any” by pointing out that federal courts have held that the term “any firearm” is ambiguous with respect to the unit of prosecution and must be treated as a single offense with multiple convictions and punishments being precluded. 450 So.2d at 482 citing United States v. Rosenbarger, 536 F.2d 715 (6th Cir.1976), cert. denied, 431 U.S. 965, 97 S.Ct. 2920, 53 L.Ed.2d 1060 (1977); United States v. Kinsley, 518 F.2d 665 (8th Cir.1975).

Applying the rationale of Grappin to the instant case, it is apparent that Watt can only be charged with one count of possession of contraband. Watt has prosecuted under section 944.47, Florida Statutes (1981), which provides in relevant part:

(1)(a) Except through regular channels as authorized by the officer in charge of the correctional institution, it is unlawful to introduce into or upon the grounds of any state correctional institution, or to take or attempt to take or send therefrom, any of the following articles which are hereby declared to be contraband for the purposes of this section, to wit:
5. Any firearm or weapon of any kind or any explosive substance.
(c) It is unlawful for any inmate of any state correctional institution or any person while upon the grounds of any state correctional institution to be in actual or constructive possession of any article or thing declared by this section to be contraband, except as authorized by the officer in charge of such correctional institution.
(2) Whoever violates any provision of this section is guilty of a felony of the third degree....

(Emphasis supplied.) Thus applying the a/any test of Grappin, we conclude that Watt may not be charged with multiple offenses for the possession of two prison-made knives.

For the reasons expressed, we approve of the decision of the district court.

It is so ordered.

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

ADKINS, J., concurs with an opinion.

ADKINS, Justice,

concurring.

The Court correctly holds that Watts is not subject to separate prosecution (and punishment) for the unlawful possession of two prisonmade knives under section 944.-47(l)(c), Florida Statutes. However, I disagree with the Court’s reasoning used to support this conclusion. The article which prefaces a respective item of property in a given statute should not be determinative.

Rather than rely on the legislature’s choice of “a” or “any”, I would follow the “chronological and spacial relationships” test to determine whether a multifaceted offense may result in a single or multiple sentence. Watts possessed two prison-made knives during the same time and space and therefore is not subject to separate prosecutions.


author:
PER CURIAM.
      ADKINS, Justice, EHRLICH, Justice,

text:
    THE FLORIDA BAR, Complainant, v. John E. MOXLEY, Respondent.
    No. 63786.
    Supreme Court of Florida.
    Jan. 17, 1985.

      John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and David G. McGunegle, Bar Counsel, Orlando, for complainant.
    C. Glyde Atkins, Jr. of Piccin, Atkins, Krehl & Forman, Ocala, for respondent.
   PER CURIAM.

At issue here is the appropriate discipline in this bar grievance case.

Moxley, a duly licensed lawyer, practiced law and maintained a trust account. He also engaged in a private business not directly connected with his law practice. He utilized the same checking account for both his client trust fund and the separate business venture. On occasion he advanced funds from this account to other accounts both for the business and for his law practice before receiving deposits for those expenditures. The referee properly found that such conduct violated article XI, rule 11.02(4) of the Integration Rule (for commingling and improperly utilizing trust funds) and disciplinary rule 1-102(A) (for commingling trust funds and for misconduct which reflects adversely on his fitness to practice law).

Rule 11.02(4) commences: “Money or other property entrusted to an attorney for a specific purpose, including advances for costs and expenses, is held in trust and must be applied only to that purpose.” We take a grim view of attorneys who fail to keep sacrosanct and inviolate their trust funds as required under this rule. Recognizing this, The Florida Bar suggests that the minimum penalty should be a six-month suspension with proof of rehabilitation. The referee, on the other hand, recommended a public reprimand plus a three-year probation with certain conditions. Moxley agrees with the referee.

The closest case to the one at hand is The Florida Bar v. Welty, 382 So.2d 1220 (Fla.1980), where we suspended an attorney for six months for misuse of trust funds even though no client suffered a loss by his conduct. In Welty we said:

Public reprimand should be reserved for such instances as isolated instances of neglect, The Florida Bar v. Larkin, 370 So.2d 371 (Fla.1979); or technical, violations of trust accounting rules without willful intent, The Florida Bar v. Horner, 356 So.2d 292 (Fla.1978); or lapses of judgment, The Florida Bar v. Welch, 369 So.2d 343 (Fla.1979).

Welty, 382 So.2d at 1223. There is no doubt that the referee considered Welty in making his recommendation.

We give a great deal of weight to the referee in cases such as this. Here, the referee is an experienced, considerate, and thoughtful judge. To us, however, this case more appropriately falls somewhere above the situation which existed in Hor-ner, but somewhere below that in Welty. In disciplinary cases it is important to look at the offense and the circumstances surrounding it. But it also is important to consider the effect of the dereliction of duty on others as well as the character of the wrongdoer and the likelihood of further disciplinary violations. We therefore believe some suspension is appropriate. We do this not so much in retribution against Moxley as to clearly admonish the bar regarding the necessity to follow faithfully rule 11.02(4) and disciplinary rule 1-102.

Accordingly, we suspend John E. Moxley for a period of sixty days, said suspension to commence thirty days from the date of the filing of this opinion. In addition he is placed on probation for three years pursuant to rule 11.10(1) of the Integration Rule. As a condition of probation he must keep his trust books and records open and accessible to The Florida Bar at all reasonable times without notice and, upon request of the bar, consent and authorize staff investigators of The Florida Bar to examine any banking institution’s record of any of his trust accounts.

Judgment for costs in the amount of $1,145.37 is hereby entered against respondent, for which let execution issue.

It is so ordered.

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

EHRLICH, J., dissents with an opinion, in which ALDERMAN, J., concurs.

ADKINS, Justice,

dissenting:

I would impose a public reprimand as recommended by referee.

EHRLICH, Justice,

dissenting.

I fail to see what distinguishes this case from Welty. The deficit amounts are virtually the same; the period of wrongdoing is similar. The majority opinion notes that in the Welty ease a client suffered some delay in receiving his money, whereas none of Moxley’s clients was inconvenienced. The record clearly shows, however, that this distinguishing characteristic was a fortuity of good timing on the part of Moxley's clients, rather than a valid diminution of the egregious nature of the breach of professional responsibility.

In Welty, the respondent maintained throughout that the shortfalls in his account originally occurred without his knowledge because of incompetent record keeping, rather than' through intentional manipulation of trust accounts. Moxley, on the other hand, knowingly and intentionally violated his duty under the Code of Professional Responsibility to maintain inviolate the clients’ money. The degree of departure from the ethical canons of the profession, not the degree of loss sustained by the client, should determine the appropriate punishment. Otherwise, the philosophy of Bar discipline is reduced to “what the client doesn’t know can’t hurt the attorney.”

While Moxley’s cooperation with the Bar merits mitigation, apparently Welty also cooperated and voluntarily submitted to an audit. I also note that The Florida Bar Integration Rule, Rule 11.02(4)(b) requires production of trust account records at the direction of a grievance committee (among others) and that failure to so produce is grounds for independent disciplinary action. The Bar acknowledges Moxley’s cooperation in turning over the records without requiring that they be subpoenaed. That is not tantamount to admitting, as respondent urges, that but for this cooperation, no case could have been made against Moxley.

I agree that there are a number of significant mitigating circumstances. I feel the six-month suspension recommended by the Bar represents substantial mitigation of the sentence normally appropriate in cases of commingling funds and using client’s funds for personal expenditures.

ALDERMAN, J., concurs.

      . The referee explained his recommendations as follows:
      Prior to recommending discipline pursuant to Rule 11.06(9)(a)(4), I considered the following personal history and prior disciplinary record of the Respondent, to-wit:
      The Respondent is 47 years of age; was admitted to The Florida Bar in May of 1971; and has been a sole practitioner ever since. I find that except for the subject matter of this proceeding, his professional and personal life [have] been exemplary. He has been active in the bar association and has been more than ordinarily involved in pro bono or legal aid work and organizations. He is devoutly religious and is an officer in his church. He has and still devotes time on the board of directors of a church sponsored institution for the needy. Many other private and public good works have been done by the Respondent.
      The undersigned is accustomed to the regrets and pleas of the guilty after the fact. In this matter, the Respondent not only is regretful, sorrowful, remorseful and embarrassed beyond measure by what he did, but he has demonstrated contriteness and change by the following:
      He fully cooperated with the Complainant.
      In effect, he turned himself in; (trial transcript, p. 53), and he has instituted a new method of keeping records and reconciling bank statements on his trust account which will tend to assure that the Rules violated will not be henceforth.
      Further, there was never any intent to embezzle or defraud any client. As staff counsel stated, "No client was hurt nor were any clients complaining." [Underscoring supplied.] (See page 53 of the trial transcript).
      One of his clients was a character witness who has had up to $90,000.00 in Respondent's Trust Account. In addition, this client wants the Respondent to continue as lead attorney in a long and complicated law suit perhaps involving in excess of a million dollars in damages.
      The undersigned appreciates the seriousness of the misconduct charged and the considerable case law as to discipline developed in respect thereto; however, he believes that since no client complained, the manifest reformation of the Respondent and the financial loss already suffered by him, this referee’s recommendation is fair to the public and severe enough to deter others who might likewise offend.

      . One of Welty’s clients received funds due only after a delay. None of Moxley’s clients, however, suffered any kind of loss or delay.


author: ALDERMAN, Justice. BOYD, Chief Justice,

text:
    FLORIDA PAROLE AND PROBATION COMMISSION, Petitioner, v. William H. PAIGE, Respondent.
    No. 64144.
    Supreme Court of Florida.
    Jan. 17, 1985.

      Enoch J. Whitney, Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for petitioner.
    Thomas B. Woodward of Lager, Woodward & O’Steen, Tallahassee, for respondent.
   ALDERMAN, Justice.

The Florida Parole and Probation Commission seeks review of the decision of the district court of appeal directing that it establish an “effective parole release date” for Paige, a state prisoner. The decision is reported as Paige v. Florida Parole and Probation Commission, 434 So.2d 7 (Fla. 1st DCA 1983), and has been certified by the district court as having passed upon a question of great public importance.

Paige has an extensive prior criminal record and a history of escape and parole violations. He was interviewed by the parole authorities in December 1979, and was given a presumptive parole release date of May 11,1982. After a biennial interview in January 1982, his presumptive parole release date was not changed. In March 1982, he was interviewed for the purpose of establishing an effective parole release date. The Commission, thereafter, pursuant to section 947.18, Florida Statutes (1981), changed Paige’s presumptive parole release date to May 13, 1989. In support of its action, the Commission stated:

The Commission is unable to make a finding that there is reasonable probability that, if he is placed on parole, Inmate Paige will live and conduct himself as a respectable and lawabiding citizen and that his release will be compatible with his own welfare and the welfare of society as required by Florida Statutes 947.18, in that, Inmate Paige, 33 years of age, has consistently been arrested and convicted for auto theft, escape and breaking and entering; that is, 8/29/69, sentenced to 2½ years for breaking and entering, escaped and received 3 months, escaped 2nd time and sentenced to 2½ more years; 4/20/71 released on MCR, 6/2/72 MCR revoked, he had been sentenced to one year county jail for larceny of motor vehicle; 7/16/73 sentenced to 10 years for b & e witc felony; rape and assault witc felony, rape; 8/9/74, sentenced to 15 years for escape; 5/13/74, sentenced to 5 years for possession of stolen vehicle, he escaped from Niceville prison 3/4/74, stole a truck in Niceville and stopped by police in Pensacola and apprehended.

Upon review, the First District temporarily relinquished jurisdiction to the Commission and directed the Commission to conduct another review for purposes of adequately explaining the reasons for denying Paige’s parole. On remand, the Commission reestablished Paige’s presumptive parole release date to May 11, 1982, but declined to set an effective parole release date because it was unable to make a finding that there is reasonable probability that, if he is placed on parole, he would live and conduct himself as a respectable and law-abiding person and that his release would be compatible with his welfare and the welfare of society.

The First District then affirmed the Commission’s action of reestablishing Paige’s presumptive parole release date as May 11, 1982. It, however, vacated that portion of the order declining to set an effective parole release date and remanded to the Commission to establish Paige’s effective parole release date subject to the standard provisions of parole. The district court reasoned that the limited discretion remaining with the Commission, pursuant to section 947.18, must be considered in conjunction with the other provisions of the Objective Parole Guidelines Act of 1978, permitting the Commission to change a presumptive parole release date only upon a showing of new information, institutional conduct, or extraordinary circumstances. The district court found that the Commission initially had improperly revised this date to May 13, 1989, because, in doing so, it had relied on the same information which it had before it when it first established Paige’s presumptive parole release date as May 11, 1982.

The district court certified the following question:

Whether the Commission may decline to authorize a recommended effective parole release date, and thereby deny parole, pursuant to § 947.18, Florida Statutes, solely upon the basis of information which was previously considered, or available for consideration, in setting the inmate’s presumptive parole release date.

Under the facts of the present case, we hold that the Commission did not abuse its discretion pursuant to section 947.18 in declining to set an effective parole release date. Section 947.18 provides:

No person shall be placed on parole until and unless the commission shall find that there is a reasonable probability that, if he is placed on parole, he will live and conduct himself as a respectable and law-abiding person and that his release will be compatible with his own welfare and the welfare of society.

This provision, which was initially enacted in 1941 and became a part of the Objective Parole Guidelines Act in 1978, gives the Commission the ultimate discretion in deciding whether to parole. It expressly provides that no person shall be placed on parole until and unless the Commission can make the specific findings.

In 1978 the legislature adopted the Objective Parole Guidelines Act, chapter 78-417, Laws of Florida (1978), which revised the method utilized by the Florida Parole and Probation Commission in making parole decisions. This act established a structured parole review process based on objective criteria. This law requires that an inmate be interviewed within a specified time period depending on the length of the inmate’s sentence. § 947.16. Based on this interview, a panel of commissioners must decide upon a presumptive parole release date which becomes binding upon the Commission in the sense that, once established, it is not to be changed except for reasons of institutional conduct, acquisition of new information not available at the time of the initial interview, or for good cause in exceptional circumstances. §§ 947.16(4), 947.173(3); Jackson v. Florida Parole and Probation Commission, 424 So.2d 930 (Fla. 1st DCA 1983). Placement of the inmate on parole on the date of his presumptive parole release date, however, is not automatic. Kirsch v. Greadington, 425 So.2d 153 (Fla. 1st DCA 1983). Prior to the arrival of this date, inmates are given a final interview and review in order to establish an effective release date after which the Commission must determine “whether or not to authorize the effective parole release date.” § 947.174(6), Fla.Stat. (1981) (now § 947.1745, Fla.Stat. (1983)).

In analyzing the effect of these statutory changes, the First District Court of Appeal has said that

Florida’s Objective Parole Guidelines Act has restricted the Commission’s previously unbounded discretion in granting parole. The Objective Parole Guidelines Act’s ultimate intent is to prevent arbitrary and capricious action by the Commission. § 947.002(1), Fla.Stat. (1981).
Section 947.165(1), Fla.Stat. (1981), requires the Commission to develop and implement objective guidelines “which shall be the criteria upon which parole decisions are made.” However, neither the statutes nor the Commission’s rules provide guidelines concerning the invocation of § 947.18 to refuse to authorize an EPRD. [effective parole release date] ... [I]n the future, the Commission should explicate its reasons for its actions in a manner sufficient to permit judicial review for a determination of whether the Commission has overreached the legislative grant of discretion provided in the Objective Parole Guidelines Act.

Gobie v. Florida Parole and Probation Commission, 416 So.2d 838, 840 (Fla. 1st DCA), review denied, 424 So.2d 762 (1982) (footnote omitted). The First District in Gobie emphasized that by retaining section 947.18 as a part of the Objective Parole Guidelines Act in 1978, the legislature reflected its intent to retain ultimate discretion in paroling an inmate with the Commission. The reasons for its exercise of discretion, the First District said, should be stated in a sufficient manner so that it could be determined whether the Commission abused its discretion.

In May v. Florida Parole and Probation Commission, 435 So.2d 834 (Fla.1983), we emphasized that although the Commission is required by law to develop and has developed and implemented objective parole guidelines as criteria upon which to base its parole decisions, chapter 947 leaves the ultimate parole decision to the discretion of the Commission guided by its rules. We held that the adoption and implementation of objective parole guidelines did not render section 947.18 mere surplusage and said that “the use of the terms ‘guidelines’ and ‘presumptive parole release date’ clearly conveys the message that the final parole decision will depend upon the commission’s finding that the prisoner meets the conditions provided in section 947.18.” Id. at 837.

Although Paige’s presumptive parole release date could not be modified absent new information or unfavorable institutional conduct, these strictures did not confine the Commission in properly exercising its discretion to determine that Paige did not meet the requirements of section 947.18. On the record before us, we find no abuse of discretion by the Commission in declining at this time to set an effective parole release date. The Commission has established rules to guide it in the exercise of this discretion. Consistent with the provisions precluding modification of Paige’s presumptive parole release date because of the absence of new information or unfavorable institutional conduct, his presumptive date remains unchanged and he will be afforded biennial review to determine whether he can be found eligible for parole release. Fla.Admin.Code Rule 23-21.155.

We answer the certified question in the affirmative and hold that the Commission did not abuse its discretion in deciding that Paige does not qualify for parole at this time under the criteria established by section 947.18.

Accordingly, the decision of the district court, requiring the Commission to establish Paige’s effective parole release date, is quashed.

It is so ordered.

ADKINS, OVERTON, McDONALD and EHRLICH, JJ., concur.

BOYD, C.J., dissents with an opinion, in which SHAW, J., concurs.

BOYD, Chief Justice,

dissenting.

Mr. Paige’s background is such that it is highly understandable that the Commission should not wish to grant him parole, especially in face of what appears to be a direct legislative mandate against it in section 947.18, Florida Statutes (1981). However, the issue presented to us is how section 947.18 can be construed in harmony with the other provisions of the Objective parole Guidelines Act, chapter 947, Florida Statutes (1981).

Chapter 947 was revised and amended with a view to avoiding arbitrariness and the appearance of arbitrariness in parole decision making by establishing objective criteria to govern the parole process. Ch. 78-417, § 1, Laws of Fla. Chapter 947 provides a structured and systematic process for establishing a prisoner’s entitlement to parole.

Chapter 947 contemplates that the criteria for parole will be clearly known not only to the Commission and its staff, to correction’s officials, and to the courts, but also to the prisoner brought into the state prison system. Upon being brought into that system, the prisoner is made aware that eligibility for parole is contingent on certain specific criteria. He is in effect told that if he conducts himself acceptably, his eligibility for parole, once determined in accordance with objective criteria, will ripen into a sort of entitlement. The prisoner has a right to expect that the timetable of his eligibility, once established, will be followed strictly unless there is a compelling reason against doing so.

What, then, is the proper meaning and purpose of section 947.18 and how is it to operate? Section 947.18 is to be interpreted in light of the remainder of the Objective Parole Guidelines Act. See Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1980). I conclude that the legislative mandate of section 947.-18 is to be given effect by taking it into consideration during the process of initially establishing a prisoner’s presumptive parole release date. It is not intended to be used at the eleventh hour to frustrate the legitimate expectations of the prisoner.

I would answer the certified question in the negative in order to preclude arbitrariness in parole release decisions. I do not say that the Commission is completely forbidden to deny release on the scheduled release date but would hold that once the presumptive release date is set, it should be alterable only upon a showing of pertinent new information, information which was previously available but not considered, misconduct while in prison, or some truly compelling extraordinary circumstances. See Jackson v. Florida Parole and Probation Commission, 424 So.2d 930 (Fla. 1st DCA 1983). Without such a showing, a change in a presumptive parole release date, or declining to give it effect, should be deemed arbitrary because it is a departure from the regular processes contemplated by the Objective Parole Guidelines Act. See Jackson v. Florida Parole and Probation Commission, 429 So.2d 1306 (Fla. 1st DCA 1983).

In the present case the Commission declined to give effect to the presumptive parole release date. The ground for the decision was the prisoner’s past record, showing him to be a poor parole risk. This information clearly was available to the Commission at the time the presumptive release date was established and subsequently when it was reaffirmed. Because the Commission has failed to show that its decision was based on previously overlooked information, pertinent new information not previously available, some misconduct of the prisoner during the instant incarceration, or some extraordinary circumstances, I find it has acted arbitrarily and would overturn its decision. For these reasons I would approve the decision of the district court of appeal.

SHAW, J., concurs.


author: PER CURIAM. OVERTON, Justice, McDONALD, Justice,

text:
    Howard NEU, Mayor; Robert Lippelman, James Devaney, Diane Lord Brannen and John A. Hagerty, as Members of the North Miami City Council, Petitioners, v. MIAMI HERALD PUBLISHING COMPANY, Intervenor/Respondent, and State of Florida ex rel. Janet Reno, as State Attorney for the Eleventh Judicial Circuit of Florida, and as a citizen of the State of Florida, Respondents.
    No. 64151.
    Supreme Court of Florida.
    Jan. 17, 1985.

      Thomas Martin Pflaum of Simon, Schindler & Hurst, Miami, for petitioners.
    Parker D. Thomson and Sanford L. Bohr-er of Thomson, Zeder, Bohrer, Werth, Adorno & Razook, and Richard J. Ovelmen, Gen. Counsel, Miami, for The Miami Herald Pub. Co.
    Thomas K. Petersen, Chief Asst. State Atty., Miami, for State of Florida ex rel. Janet Reno, State Atty.
    Gerry Hammond and Joslyn Wilson, Asst. Attys. Gen., Tallahassee, amicus curiae, for the State of Fla. ex rel. Jim Smith, Atty. Gen.
    James R. Wolf, Gen. Counsel, Tallahassee, amicus curiae, for Florida League of Cities.
    Robert M. Rhodes, H. Michael Madsen and Kent R. Putnam of Messer, Rhodes & Vickers, Tallahassee, amicus curiae, for Florida School Bds. Ass’n, Inc.
   PER CURIAM.

The district court below certified its decision as one passing on a question of great importance. State ex rel. Reno v. Neu, 434 So.2d 1035 (Fla. 3d DCA 1983). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

The state attorney and the Miami Herald sought a declaratory judgment that a proposed meeting between the city council and its attorney to discuss pending litigation was subject to the open meeting provisions of the Sunshine Law, section 286.011, Florida Statutes (1981). Relying on Bassett v. Braddock, 262 So.2d 425 (Fla.1972), the trial court concluded that the proposed meeting was neither official nor formal action under section 286.011 and, thus, there was no requirement that the meeting be open to the public. On appeal, the district court reversed, relying on Board of Public Instruction v. Doran, 224 So.2d 693 (Fla.1969) and City of Miami Beach v. Berns, 245 So.2d 38 (Fla.1971) as being directly on point. The district court distinguished Bassett on the basis that it dealt with a different question arising under a constitutional exception to the Sunshine Law. The district court also rejected the argument that the attorney-client privilege provisions of the Florida Evidence Code, section 90.502, Florida Statutes (1981), granted an exception for closed meetings because, in the court’s view, section 286.011(1) limited exceptions to the Sunshine Law to those- created by the constitution. Because of the continuing significance of the issue, the court certified the following question of great public importance:

Whether the Sunshine Law applies to meetings between a City Council and the City Attorney held for the purpose of discussing the settlement of pending litigation to which the city is a party.

State ex rel. Reno, 434 So.2d at 1036. We answer the question affirmatively and approve the decision of the district court.

Before turning to the dispositive questions, we dispose of two peripheral questions which have been raised. First, the city council devised a procedure whereby representatives of the press and the state attorney, among others, were to be admitted to the meeting and a record maintained which would later be released to the public. The representatives attending the meeting would be pledged to respect the confidentiality of the cases discussed in the meeting until the cases had been resolved. Whatever merits there may be in this procedural attempt to compromise the competing values between open meetings and private discussion with an attorney, the procedure has no legal impact. Under the Sunshine Law, a meeting is either fully open or fully closed; there are no intermediate categories.

Second, the district court opinion suggests that in enacting the Sunshine Law the legislature, by the use of the words “except as otherwise provided in the constitution,” established a requirement that future legislatures could not establish statutory exceptions to the open meeting requirements of the Sunshine Law^ This is, of course, incorrect. A legislature may not bind the hands of future legislatures by prohibiting amendments to statutory law. Straughn v. Camp, 293 So.2d 689, 694 (Fla.), appeal dismissed, 419 U.S. 891, 95 S.Ct. 168, 42 L.Ed.2d 135 (1974); Tamiami Trail Tours, Inc. v. Lee, 142 Fla. 68, 194 So. 305 (1940); Sovereign Camp Woodmen of the World v. Lake Worth Inlet District, 119 Fla. 782, 161 So. 717 (1935); Kirklands v. Town of Bradley, 104 Fla. 390, 139 So. 144 (1932).

Turning now to the dispositive questions, the trial court concluded, and petitioners urge, that our decision in Bassett creates an exception to the Sunshine Law permitting governmental bodies to meet privately with their attorneys to discuss pending litigation. In Bassett we held that an attorney representing a governmental body could meet privately with employee representatives to negotiate a collective bargaining agreement, and that the governmental body could meet privately with its attorney representative to instruct and consult on the negotiations. We agree that much of our rationale in Bassett would appear to support the proposition that private consultations are permitted with attorneys representing governmental bodies in pending litigation. Indeed, we went so far as to comment that “where the negotiator is an attorney that certainly he is entitled to consult with the Board on matters regarding preliminary advices.” Bassett, 262 So.2d at 428 (emphasis in original). Despite the broadness of such language, our decision was restricted to and rested on what we saw to be a constitutional exception to the Sunshine Law, to wit: the article I, section 6 right of public employees to bargain collectively.

Petitioners urge that opening up the consultation of the governmental body with its attorney to its adversary in pending litigation gives the adversary an unfair advantage which can be used to secure unmerited or excessive judgments or settlements against the public. There is a good deal of wisdom in petitioners’ argument but, as will be made clear below, we have no constitutional or statutory authority to create an exception to the Sunshine Law for governmental bodies to meet privately with their attorneys to discuss pending litigation.

Petitioners next urge that section 90.502, Florida Statutes (Supp.1976) created an attorney/client privilege whereby governmental bodies may meet privately with their attorneys. Although we agree that the legislature has the authority to exempt such meetings from the Sunshine Law, we do not agree that it has done so. Section 90.502(l)(c) provides that “[a] communication between lawyer and client is ‘confidential’ if it is not intended to be disclosed to third persons.... ” The Law Revision Council Note to section (1), Florida Statutes Annotated 90.502 (1979), comments that “[w]hen the communication is made in public ... the intent to keep the communication confidential is lacking and the privilege cannot be claimed.” The Sunshine Law explicitly provides for public meetings; communications at such public meetings are not confidential and no attorney/client privilege can arise therefrom. Our conclusion is supported by the later unsuccessful attempt of the legislature to enact House Bill 1107 (HB 1107) in the 1977 legislative session. Section 8 of HB 1107 provided that governmental bodies could meet privately with their attorneys to discuss pending litigation. However, the Governor vetoed HB 1107 and that veto was sustained. In his veto message to the legislature, Governor Askew indicated that he approved most of the contents of HB 1107, but so strongly disapproved of the exception to the Sunshine Law for discussions with attorneys that he was constrained to veto the bill. As it pertains to this point, the significance of section 8 of HB 1107 is that it clearly indicates that the legislature, despite petitioners’ argument to the contrary, did not intend by its earlier enactment of section 90.502 to create an exception to the Sunshine Law for attorney/client meetings. If it had so intended, HB 1107 would have been a pointless act. In construing legislation, courts should not assume that the legislature acted pointlessly. Sharer v. Hotel Corp. of America, 144 So.2d 813, 817 (Fla.1962).

Petitioners next urge, alternatively, that reading section 286.011 to deny them a right to private meetings with their attorney places section 286.011 in conflict with Florida Bar Code of Professional Responsibility, Disciplinary Rule 4-101 and Ethical Consideration 4-2, and infringes on the constitutional authority of this Court under article V, section 15, Florida Constitution to regulate the practice of law. Petitioners cite Times Publishing Co. v. Williams, 222 So.2d 470 (Fla. 2d DCA 1969), in support. We disagree and disapprove that portion of Times Publishing Co. which holds that the legislature is without authority to regulate the relationship of public bodies with their attorneys. We note first that Disciplinary Rule 4-101 and Ethical Consideration 4-2 both provide that an attorney may divulge communications with his client when required by law. Further, as we noted above, there are no confidential communications to protect when the communications occur in a public meeting. Finally, the attomey/client privilege belongs to the client, not the attorney. The legislature has plenary constitutional authority to regulate the activities of political subdivisions and can require, as it has done in section 286.011, that meetings be open to the public. The attorney’s right to invoke the attorney/client privilege is derivative of the client’s right to that privilege. Under the circumstances, it would truly be a case of the tail wagging the dog to hold that an attorney, or this Court, could require closed meetings of public bodies, contrary to statutory law, based on the Code of Professional Responsibility.

Petitioners also urge that they have a due process right under the fourteenth amendment to the United States Constitution to privately consult with their attorney. We will not make any sweeping pronouncements on the distinction between due process rights of governmental entities and private persons. It is enough to say that the legislature has the power to require open meetings and that petitioners’ argument has been rejected by the United States Supreme Court. Williams v. Mayor of Baltimore, 289 U.S. 36, 53 S.Ct. 431, 77 L.Ed. 1015 (1933).

Petitioners’ broadest argument, and the one most fervently pressed, is that this Court’s decisions in Doran and Bems have effectively strangled the political process in Florida and forced political bodies and officials to evade the Sunshine Law, as interpreted, in order to make the political process function. On this point, petitioners’ arguments go beyond the issue here of consultations with attorneys on pending litigation to ask that we recede completely from Doran and Berns. Essentially, petitioners would have us read section 286.011 narrowly and hold that it applies only to the climatic meetings where official actions and acts are approved by the governing body. We have recently articulated why we will not adopt such a reading in Wood v. Marston, 442 So.2d 934 (Fla.1983), and will not repeat the reasons here. One can argue and reargue whether the broad reading of the Sunshine Law in Doran and its progeny is politically wise. The fact remains that Doran was rendered fifteen years ago and placed the legislature and all concerned on notice of our broad reading of section 286.011. Doran has not been overruled by amendment to section 286.011 and petitioners have not presented a persuasive argument that we should overturn countless decisions broadly reading section 286.-011. As we said in Wait v. Florida Power & Light Co., 372 So.2d 420, 424 (Fla.1979):

This argument should be addressed to the legislature. Courts deal with the construction and constitutionality of legislative determinations, not their wisdom. In this case, we are confined to a determination of the legislature’s intent.

The certified question is answered in the affirmative and the decision of the district court approved.

It is so ordered.

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

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

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

OVERTON, Justice,

concurring specially.

I concur specially to emphasize that we are construing the Sunshine Law, section 286.011, Florida Statutes (1981), as it applies to meetings of boards, commissions, or authorities of counties, municipalities, and political subdivisions of this state where official acts are taken. This Court has previously distinguished the actions of such bodies from the acts of governmental executive officers. See Wood v. Marston, 442 So.2d 934 (Fla.1983); Occidental Chemical Co. v. Mayo, 351 So.2d 336 (Fla.1977); Bennett v. Warden, 333 So.2d 97 (Fla. 2d DCA 1976). See also Wood v. Marston, 442 So.2d at 942 (Overton, J., concurring). Section 286.011 does not apply to executive officers and there is no violation of the Sunshine Law, as it is presently written, when a conference occurs between an attorney and a government executive, e.g., the governor, a county or city manager, a mayor where he is the chief executive officer of a municipality, or an agency executive officer.

EHRLICH, J., concurs.

McDONALD, Justice,

dissenting.

I would answer the certified question in the negative. One of the oldest privileges existing in this country is the attorney-client privilege. See Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). Its purpose is to allow open and uninhibited discourse between the attorney and the client. There was no specific modification of this time-honored concept in the enactment of the Sunshine Law. We should not hold that this doctrine was overruled by implication. I do not consider Board of Public Instruction v. Doran, 224 So.2d 693 (Fla.1969), and City of Miami v. Bernard, 254 So.2d 38 (Fla.1971), as controlling or being on point. Neither dealt with the time-honored recognition of the confidential nature of the attorney-client privilege. I can conceive of no public policy reasons to extend the Sunshine Law to govern communications between a public body and its attorneys concerning litigation in which the public body is a party. I do not believe it was the original intent of the legislature to abrogate the attorney-client confidentiality rule. Subsequent abortive attempts to amend the Sunshine Law initiated after a perception of how this Court viewed such consultations does not justify a conclusion that the legislature initially felt that attorney-client communications were public.

Both the Evidence Code, passed by the legislature and adopted as a rule of this Court, In re Florida Evidence Code, 372 So.2d 1369 (Fla.), as clarified, 376 So.2d 1161 (Fla.1979), and the Code of Professional Responsibility recognize the continued viability of the confidential attorney-client relationship. The legislature, in enacting the Sunshine Law, has not disturbed this relationship; it still extends to all, including public bodies.

ALDERMAN, J., concurs.

      We have no interest in nor responsibility for debating political questions. Our interest in Governor Askew’s veto message on HB 1107 is a legal one. Nevertheless, we would point out that Governor Askew, who could be fairly described as a successful, practicing politician, does not share petitioners’ view that a broad reading of the Sunshine Law is politically unwise:
      I am not unappreciative of the fact that there is some merit to permitting public bodies to meet privately with their attorneys, but the potential for abuse outweighs the potential benefit. Public agencies in Florida have managed to survive for ten years without holding secret meetings with their attorneys. There is no reason to think that they should not be able to survive many more. While this may cause some inconveniences in the short run, certainly we have discovered in this state that it is far better in the long run to conduct public business in the "sunshine." The public trust and the public confidence that are fostered by free and open government proceedings far outweigh any possible benefits that might be derived from Section 8 of this bill.
      Journal of the House of Representatives 3 (Dec. 13, 1977).


author: PER CURIAM.

text:
    Felipe RUIZ, Petitioner, v. STATE of Florida, Respondent.
    No. 64640.
    Supreme Court of Florida.
    Jan. 17, 1985.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for petitioner.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., Miami, for respondent.
   PER CURIAM.

The decision of the district court of appeal, reported as Ruiz v. State, 441 So.2d 1152 (Fla. 3d DCA 1983), is approved on the authority of Maselli v. State, 446 So.2d 1079 (Fla.1984).

It is so ordered.

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

ADKINS, J., dissents.


text:
    THE FLORIDA BAR, Complainant, v. Michael H. MERRILL, Respondent.
    No. 65652.
    Supreme Court of Florida.
    Jan. 17, 1985.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Richard B. Liss, Bar Counsel, Fort Lauderdale, for complainant.
    Dewey Mockler of Johnson & Mockler, Fort Myers, for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Michael H. Merrill, a member of The Florida Bar, is presently before us on complaint of The Florida Bar, Consent Judgment of respondent and report of referee. Pursuant to article XI, Rule 11.-06(9)(b) of the Integration Rule of The Florida Bar, the referee’s report and record were duly filed with this Court. No petition for review pursuant to article XI, Rule 11.09(1) of the Integration Rule of The Florida Bar has been filed.

Having considered the pleadings and evidence, the referee found as follows:

Findings as to Count I
Respondent was retained to handle a dissolution of marriage proceeding and neglected to timely process the matter; failed to properly handle cost money advanced by the client; failed to timely refund all unused costs and fees; and failed to exercise proper supervision of his office staff.
Findings as to. Count II
Respondent was retained to establish a foreign judgment as a Florida judgment and failed to conclude this representation in a reasonable period of time and failed to make any refund to the client.
Findings as to Count III
Respondent was retained to handle an adoption matter and neglected to prepare the Petition for Adoption in compliance with statutory requirements; failed to file any Petition for Adoption on behalf of his clients; failed to exercise proper supervision of his office staff; and failed to timely refund fees and costs to his clients.

The referee recommends that respondent be found guilty of all violations charged in The Florida Bar’s complaint, and specifically that he be found guilty of violating Disciplinary Rules 1-102(A)(1), 1-102(A)(6), 3-104(C), 6-101(A)(2), 6-101(A)(3), 9-102(A)(2) and 9-102(B)(4) of the Code of Professional Responsibility and article XI, Rules 11.02(2) and 11.02(4) of the Integration Rule of The Florida Bar and recommends that respondent receive a public reprimand and make a refund to Mario I. Andrea in the amount of Four Hundred Fifty Dollars and No Cents ($450.00).

Having carefully reviewed the record, we approve the findings and recommendations of the referee.

Accordingly, respondent, Michael H. Merrill, is hereby publicly reprimanded and the publication of this order and judgment shall constitute a public reprimand. Respondent is also directed to refund to Mario I. Andrea the amount of Four Hundred Fifty Dollars and No Cents ($450.00).

Judgment for costs in the amount of $1,338.88 is hereby entered against respondent, for which let execution issue.

It is so ordered.

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


author: PER CURIAM. PER CURIAM.

text:
    The BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND of the State of Florida, and Coastal Petroleum Company, a Florida corporation, Appellants, v. AGRICO CHEMICAL COMPANY, Appellee.
    No. 83-1713.
    District Court of Appeal of Florida, Second District.
    Sept. 14, 1984.
    On Rehearings Jan. 23, 1985.
    David G. Hanlon and John W. Puffer, III, of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, and Hall, Estill, Hard-wick, Gable, Collingsworth & Nelson, P.A., Tulsa, Okl., for appellee.
    Robert J. Beckham and James R. Hubbard of Beckham & McAliley, P.A., and William C. Crenshaw of Valdes-Fauli, Richardson & Cobb, P.A., Miami, for appellant Bd. of Trustees.
    Robert J. Angerer of Law Offices of Robert J. Angerer, Tallahassee, Joseph C. Jacobs of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, and C. Dean Reasoner of Reasoner, Davis & Vinson, Washington, D.C., for appellant Coastal Petroleum Co.
   PER CURIAM.

Affirmed. See The Board of Trustees of the Internal Improvement Fund of the State of Florida v. Mobil Oil Corp., 455 So.2d 412 (Fla. 2d DCA 1984), and Coastal Petroleum Co. v. American Cyanamid Co., 454 So.2d 6 (Fla. 2d DCA 1984).

HOBSON, A.C.J., and OTT and DAN-AHY, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

We grant rehearing to the extent that the questions previously certified as expressed by this Court in the Board of Trustees of the Internal Improvement Fund v. Mobil Oil Corp., 455 So.2d 412 (Fla. 2d DCA 1984), and Coastal Petroleum Co. v. American Cyanamid Co., 454 So.2d 6 (Fla. 2d DCA 1984), decisions are the same questions of great public importance involved in the instant case. Therefore, we again certify the following questions to the Supreme Court of Florida as questions of great public importance:

1. DO THE 1883 SWAMP AND OVERFLOW LANDS DEEDS ISSUED BY THE TRUSTEES INCLUDE SOVEREIGNTY LANDS BELOW THE ORDINARY HIGH-WATER MARK OF NAVIGABLE RIVERS?
2. DOES THE DOCTRINE OF LEGAL ESTOPPEL OR ESTOPPEL BY DEED APPLY TO 1883 SWAMP AND OVERFLOWED DEEDS BARRING THE TRUSTEES’ ASSERTION OF TITLE TO SOVEREIGNTY LANDS?
3. DOES THE MARKETABLE RECORD TITLE ACT, CHAPTER 712, FLORIDA STATUTES, OPERATE TO DIVEST THE TRUSTEES OF TITLE TO SOVEREIGNTY LANDS BELOW THE ORDINARY HIGH-WATER MARK OF NAVIGABLE RIVERS?

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

CAMPBELL, J., assigned to this motion because of the death of HOBSON, J., concurs.


author: GRIMES, Acting Chief Judge. PER CURIAM.

text:
    Timmy Ray McCUISTON, Appellant, v. STATE of Florida, Appellee.
    No. 84-663.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 1984.
    Rehearing Denied Jan. 23, 1985.
    Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., for appellee.
   GRIMES, Acting Chief Judge.

Appellant was convicted of robbery without a weapon, a second degree felony. He was sentenced to thirty years as an habitual felony offender under section 775.084, Florida Statutes (1983). Among other things, he contends that the court failed to make the proper factual findings to support the habitual felony offender sentence and that in any event he should have been sentenced within the limits of the sentencing guidelines.

We find that the court’s specific reference to two prior Michigan armed robbery convictions and a subsequent escape conviction constituted a sufficient predicate for the determination that appellant was a danger to the community and that it was necessary for the protection of the public to declare him an habitual felony offender. The same reasoning provided a clear and convincing basis for departure from the presumptive sentence under the guidelines. Prior convictions can be used to justify a departure from the guidelines even though they have already been taken into account in computing a defendant’s presumptive sentence. Davis v. State, 458 So.2d 42 (Fla. 4th DCA 1984); Hendrix v. State, 455 So.2d 449 (Fla. 5th DCA 1984), 9 F.L.W. 1697. See also Kiser v. State, 455 So.2d 1071 (Fla. 1st DCA 1984).

AFFIRMED.

OTT and DANAHY, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

Appellant argues that our determination that his sentence as an habitual felony offender sufficed to justify a departure from the sentencing guidelines conflicts with this court’s recent decision in Brady v. State, 457 So.2d 544 (Fla. 2d DCA 1984). By noting in Brady that the habitual felony offender statute was a viable alternative to the sentencing guidelines, we did not intend to infer that an enhanced sentence imposed under that statute was outside the provisions of section 921.001, Florida Statutes (1983), and Florida Rule of Criminal Procedure 3.701. We pointed out that the courts may utilize section 775.084 “provided they comply with its requirements and adequately state the reasons for departing from the guidelines.” We held that sentencing as an habitual offender constituted a clear and convincing reason for departing from the guidelines. Accord Smith v. State, 461 So.2d 995 (Fla. 5th DCA 1984).

Appellant seeks to have this court say that he will be entitled to parole consideration on the theory that, having been sentenced as an habitual felony offender, section 921.001 is totally inapplicable to his sentence. Yet, section 921.001 provides that it is applicable to all felonies, except capital felonies committed after October 1, 1983, and the felony for which appellant is being sentenced took place on October 21, 1983. To accept appellant’s position would produce the anomaly that those career criminals who had been designated habitual felony offenders could obtain parole while others could not.

The maximum sentence for appellant’s crime of robbery without a weapon was fifteen years. The effect of determining appellant to be an habitual felony offender was to increase the statutory upper limit upon his sentence to thirty years. Appellant’s presumptive sentence under the guidelines was within the range of twelve to seventeen years. The fact that he was properly declared to be an habitual felony offender served as a clear and convincing reason for departing from the guidelines. Yet, appellant’s sentence was still imposed under section 921.001. Therefore, he will not be entitled to parole consideration. But see Dorman v. State, 457 So.2d 503 (Fla. 1st DCA 1984) (defendant sentenced as mentally disordered sex offender eligible for parole consideration).

The motion for rehearing is denied.

GRIMES, A.C.J., and OTT and DAN-AHY, JJ., concur.


author: RIYKIND, LEONARD, Associate Judge. LETTS, Judge,

text:
    Charles BREINES, Appellant, v. STATE of Florida, Appellee.
    No. 83-1936.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1984.
    Rehearing and Rehearing En Banc Denied Feb. 27, 1985.

      Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Teitler, Asst. Atty. Gen., West Palm Beach, for appellee.
   RIYKIND, LEONARD, Associate Judge.

Appellant was convicted of drug trafficking. We conclude from a careful examination of the entire record that a decidedly improper remark by the prosecutor in summation “[Y]ou don’t need fingerprints when you have got eyewitnesses ... and I could have brought in five others ...,” was harmless error because of the overwhelming evidence against appellant. See State v. Murray, 443 So.2d 955 (Fla.1984).

The remaining point on appeal concerns the validity of the Florida trafficking statute, § 893.135, Fla. Stat. (1981). It is constitutional. State v. Werner, 402 So.2d 386 (Fla.1981). State v. Benitez, 395 So.2d 514 (Fla.1981).

Affirmed.

HERSEY, J., concurs.

LETTS, J., dissents with opinion.

LETTS, Judge,

dissenting.

I dissent, because I believe this decision may be in conflict with Thompson v. State, 318 So.2d 549 (Fla. 4th DCA 1975). Moreover, I am far from convinced it was harmless error.


author: DOWNEY, Judge.

text:
    Edward CALLAGHAN, Appellant, v. STATE of Florida, Appellee.
    No. 84-927.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1984.
    Rehearing and Rehearing En Banc Denied Feb. 27, 1985.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Teitler, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant, Edward Callaghan, was charged with two counts of attempted murder of his wife and infant son with a firearm and one count of child abuse by unlawfully permitting the mental or physical health of the child to be materially endangered contrary to section 827.04(1), Florida Statutes (1983). The court directed a judgment of acquittal on the child abuse count and the jury found Callaghan guilty of the lesser included offense of shooting in a dwelling on the other two counts.

In his written sentencing order the trial judge stated that he found:

clear and convincing reasons to warrant aggravating the guideline sentence under category 8, 45 points; to-wit: “any nonstate prison sanction” to a sentence of five (5) years imprisonment:
1. Defendant’s action, discharging a rifle in the same room occupied by Nicholas Callaghan, age 10 months, placed said child, an innocent bystander, in significant danger of loss of life or limb.
2. Defendant used a firearm during commission of this offense.

Callaghan contends on appeal that the court erred 1) in entering judgment of conviction for two counts of shooting into a dwelling when he only fired one shot and 2) in sentencing him in excess of the sentencing guidelines.

The evidence adduced in support of the attempted murder counts showed that Callaghan put a rifle to his wife’s head while she was holding their small child and told her he was going to kill both of them on the count of three. Just before he reached three, the wife moved her head, the gun fired, and the bullet missed the intended victims. The foregoing incident took place in the bedroom of the parties’ residence. Callaghan denied that he intended to kill either victim, but he did admit firing the shot.

Even though Callaghan was found guilty on both counts of the lesser included offense of shooting in a dwelling, there can be only one adjudication of conviction. The episodic basis for the conviction was firing' one shot in a dwelling. Had the state prevailed on its theory that Callaghan was guilty of attempting to murder both wife and child with the one shot the record would have sustained two attempted murder convictions. People v. Rothrock, 21 Cal.App.2d 116, 68 P.2d 364 (1937). But having been found guilty of only firing one shot in a dwelling, Callaghan could have been convicted of only one violation of section 790.19, Florida Statutes (1983). Therefore, Callaghan’s first point has merit.

As indicated above, the trial court chose to depart from the sentencing guidelines provided in Florida Rule of Criminal Procedure 3.701 because 1) Callaghan had used a firearm during the commission of the crime, and 2) because he discharged the rifle in the same room occupied by his ten month old child. However, Rule 3.701(d)(ll) provides in pertinent part that the court should not deviate from the guidelines for reasons that include factors relating to the instant offense or prior arrests for which convictions have not been obtained. Furthermore, we hold that the court is not at liberty to aggravate a sentence by using elements which go to make up the crime for which the defendant is being sentenced. We would analogize the rule applicable in determining presumptive parole release dates to the rule applicable to aggravating sentences. The legislature specifically provided in section 947.165 that factors used in arriving at the salient factor score and the severity of offense behavior category in parole matters shall not be applied as aggravating circumstances. See also Mattingly v. Florida Parole and Probation Commission, 417 So.2d 1163 (Fla. 1st DCA 1982). The crime of shooting in a dwelling, of course, necessarily involves use of a firearm; and Callaghan was not convicted of child abuse. Thus, both factors the trial court relied on in deviating from the guidelines were improper.

Accordingly, the judgment and sentence appealed from are reversed and the cause is remanded to the trial court with directions to enter a judgment of conviction on only one count of shooting in a dwelling and to resentence Callaghan in accordance with the sentencing guidelines provided in Florida Rule of Criminal Procedure 3.701.

REVERSED AND REMANDED with directions.

LETTS and WALDEN, JJ., concur.


author: COWART, Judge.

text:
    Faron Russell FORD, et al., Appellants, v. David COLEMAN, et al., Appellees.
    No. 84-75.
    District Court of Appeal of Florida, Fifth District.
    Dec. 20, 1984.
    Rehearing Denied Feb. 5, 1985.
    Harry Anderson of Anderson & Hurt, P.A., Orlando, for appellee David Coleman.
    Reinald Werrenrath, III, and Lora A. Dunlap of Fisher, Rushmer, Werrenrath, Keiner, Wack & Dickson, P.A., Orlando, for appellee Allstate Ins. Co.
    Robert J. Felice of Bogin, Munns, Munns & Simon, Orlando, for appellants.
   COWART, Judge.

This case involves the judicial construction of a written release in favor of an automobile owner and the owner's “agents” and the question of whether the release exonerated the driver of the automobile as being the owner’s agent.

Appellant Ford was injured while a passenger in an automobile owned by Russo Communications, Inc. and operated by ap-pellee David Coleman. Appellant settled with the vehicle owner and its insurer and executed a release discharging from further liability Russo Communications, Inc., “its agents, servants, successors, heirs, executors and administrators.” When later sued by appellant Ford the appellee Coleman pleaded the release as an affirmative defense alleging that he was an agent of Russo Communications, Inc. and hence, discharged from liability by the release. Disputed questions of fact as to alleged fraud in the procurement, and mutual mistake in the execution, of the release were tried to a jury (which found against appellant) but the trial court construed the release as a contract and held as a matter of law that Coleman, as a permissive user of the vehicle, was the owner’s agent at the time of the accident within the meaning of the term “agent” in the release. Appellant appeals that ruling.

The dangerous instrumentality doctrine has a much broader application than the doctrine of respondeat superior in agency law, and the two doctrines are separate and independent; nevertheless, the Supreme Court of Florida has often explained that at least part of the conceptual basis for the doctrine that a vehicle owner is liable for damages and injuries caused by the negligent operation of one in possession of the owner’s automobile with the owner’s express or implied permission, knowledge and consent is predicated upon the agency concept and that such possessor is the owner’s agent at least to the extent of properly controlling the automobile and preventing damage and injuries resulting from its negligent operation and in authorizing others to use the vehicle. See generally, Castillo v. Bickley, 363 So.2d 792 (Fla.1978); Orefice v. Albert, 237 So.2d 142 (Fla.1970); Susco Car Rental System v. Leonard, 112 So.2d 832 (Fla.1959); Weber v. Porco, 100 So.2d 146 (Fla.1958); May v. Palm Beach Chemical Company, 77 So.2d 468 (Fla.1955).

Accordingly, the trial court’s construction of the release in this case so as to include the permissive driver Coleman as an agent of the vehicle owner is supported by Florida case law.

AFFIRMED.

ORFINGER, J., and POWELL, R.W., Associate Judge, concur.