text:
    Jack E. SMITH v. STATE of Mississippi.
    No. 55316.
    Supreme Court of Mississippi.
    Feb. 13, 1985.
    M. Charles May, Jackson, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, HAWKINS and ROBERTSON, JJ.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the First Judicial District of Hinds County, Mississippi wherein the appellant, Jack Smith, was indicted and tried as a recidivist for the crime of murder. Upon conviction he was sentenced to serve a term of life without benefit of parole or probation in the custody of the Mississippi Department of Corrections. Aggrieved with the lower court’s holding, he has perfected an appeal to this Court assigning the following as error:

(1) The conviction of the appellant was against the overwhelming weight of the evidence.

It is undisputed that on April 24, 1983, the appellant and Arthur Gene Crump, the victim, argued outside the home of James Scott, Jr. During the argument Crump pulled a knife on appellant. Scott intervened and Crump remained at Scott’s home while Smith went to his home nearby. Not long afterwards the appellant returned with a shotgun. He testified he saw Crump make a “pistol play” (reach for a gun in his pants leg) and he fired hitting Crump in the upper leg. He then reloaded his gun and shot Crump in the head.

Testimony offered by the State’s witnesses differed from that of the appellant. According to that testimony Crump was approaching a cab his girlfriend had summoned when he was confronted by the appellant who shot him in the leg. Crump pleaded with appellant not to shoot again when appellant then shot Crump in the head. Crump was not reaching for a gun and his knife was in his back pocket at the time he was shot. No gun was found on or near his body following the incident.

These facts present a classic jury issue. We have often stated that where the testimony is in conflict, the jury is the sole judge of the weight and worth to be given that testimony. They may believe or disbelieve, accept or reject the utterance of any witness. Groseclose v. State, 440 So.2d 297 (Miss.1983); Gathright v. State, 380 So.2d 1276 (Miss.1980).

The jury was properly instructed on the State’s charge against the appellant and his assertion of self-defense, and they resolved those conflicts in behalf of the State.

(2) The lower court erred in failing to sustain the objection of appellant to certain prejudicial remarks and conduct of the prosecution.

During cross-examination, the district attorney questioned appellant at length concerning his acquisition of a gun permit in this State. Defense counsel objected to the district attorney’s conduct, at which point the district attorney said, “By george, I know he’s lying now.”

With regard to the district attorney’s general conduct in cross-examination, trial courts are allowed considerable discretion to determine whether or not such conduct during a trial is so prejudicial that an objection should be sustained. Edmond v. State, 312 So.2d 702 (Miss.1975). After carefully reading the colloquy between the appellant and the district attorney, we are of the opinion that the circuit judge did not abuse his discretion in overruling appellant’s objection.

(3) The lower court erred in failing to grant a continuance or mistrial due to the absence of three defense witnesses.

The day of trial both sides announced ready to proceed. The second day of trial the appellant announced that the subpoena docket showed three of his witnesses had been personally served; however, he learned they were unavailable to testify; two were on vacation. These witnesses were law enforcement personnel and subpoenas had been handed to a female employee of the Jackson Police Department. The appellant moved for a continuance as well as a mistrial.

Outside the jury’s presence, a proffer was entered that these witnesses would have been called to testify as to the victim’s reputation in the community for peace and violence. The appellant also had six other witnesses to call who would offer the same testimony. Counsel was asked if additional time was required to locate any other witnesses as to the victim’s general reputation. Counsel asked for a ten minute recess.

The granting of a continuance rests within the sound discretion of the trial judge. Greene v. State, 406 So.2d 805 (Miss.1981). Six witnesses were called to testify as to the victim’s general reputation for peace and violence. The testimony to be offered by the two absent witnesses was merely cumulative to those testifying, therefore, we cannot say the appellant’s case was prejudiced by their absence nor that the trial court abused its discretion in not granting a continuance. More importantly, it was incumbent upon appellant to ascertain if his witnesses were present before announcing ready for trial. Absent doing so, he is in no position to complain after the trial has begun.

(4) The lower court erred in admitting over objection of appellant State’s Exhibit 18.

During the sentencing hearing the State introduced over the appellant’s objection photo copies of microfilm records from the State of Illinois as evidence of prior convictions and sentencing of the appellant as well as a cover letter indicating the dates of his incarceration in that State.

We note at the outset that these documents, on their face, suggest more reliability regarding the information contained therein than those excluded in DeBussi v. State, 453 So.2d 1030, 1031-1032 (Miss. 1984). Still, they fall short of the settled requisites to the introduction of out-of-state documents. The State had the option of proceeding under 28 U.S.C.A. § 1738 (1950) or Mississippi Code Annotated section 13-1-99 (1972). General Acceptance Corp. v. Holbrook, 254 Miss. 78, 179 So.2d 845 (1965).

28 U.S.C.A. § 1738 states:

The Acts of the legislature of any State, Territory, or Possession of the United States, or copies thereof, shall be authenticated by affixing the seal of such State, Territory or Possession thereto.
The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form.
Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken. June 25, 1948, c. 646, 62 Stat. 947.

Mississippi Code Annotated section 13-1-99 states:

Copies of the record of any writing required or permitted to be recorded by the laws of any other, state or territory of the United States or of the District of Columbia, shall, when certified by the officer in whose office the record is kept, under his seal of office, be received in evidence without accounting for the absence of the original. If the execution of such writing be disputed on oath by the opposite party, the original shall be produced or its absence accounted for before the copy shall be received in evidence. Such original of a writing, when acknowledged or proved according to the laws of the state or territory where executed, so as to be entitled to be recorded there, shall be evidence, without further proof of its execution.

The State failed to comply with either the Federal Act or the Mississippi statute. Neither the microfilm records nor cover letter was accompanied by a certificate of authentication. The custodian of records at the penitentiary had on file microfilm copies of the original convictions and sentences from the Criminal Court of Cook County, Illinois. The certifications on these convictions were dated October 8, 1951. These microfilm copies were accompanied by a letter from the Illinois Department of Corrections which is of no help with respect to their authenticity. The letter is supposedly signed by Linda K. Badger, supervisor of the microfilm center. However, it is evident that Linda K. Badger’s name was signed by some other person whose initials were M.J.

There was also introduced into evidence an official statement of facts dated October 15, 1951, relating to the three convictions of appellant in Illinois and signed by George J. Cotsirilos, Assistant State Attorney, as well as the following signed statement of the trial judge: “I, Judge Wilbert F. Crowley, hereby concur in the above statement of facts as set forth by the State’s Attorney.” The above letter, “Official Statement of Facts,” which is also a microfilm copy contains no certification by the Clerk of the Court where it is recorded with respect to it being a true and correct copy of his records.

The appellant argues, and we agree, that a copy of a judicial record of another State or Territory is not admissible into evidence unless accompanied by an original certificate of authentication or certification by the officer in whose office the record is required to be kept, under his seal of office, if a seal exists, as provided for under 28 USCA § 1738 (1950) and Mississippi Code Annotated section 13-1-99 (1972).

What we are saying is that a photocopy of an original record which is accompanied by a photocopy of an otherwise proper authentication is not sufficient. A photocopy of the original record may be introduced provided that it is accompanied by an original certificate of authentication in compliance with 28 USCA § 1738 or Mississippi Code Annotated section 13-1-99 (1972).

For the above reasons, we reverse that portion of the lower court’s judgment sentencing the appellant to a term of life without benefit of parole or probation. The sentence of life is hereby affirmed. That portion of the judgment requiring the sentence to be served without benefit of parole or probation is reversed and this cause rendered here. Debussi v. State, 453 So.2d 1030, 1032-1034 (Miss.1984).

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

PATTERSON, C.J., ROY NOBLE LEE, P.J., HAWKINS and DAN M. LEE, PRATHER, ROBERTSON, SULLIVAN and ANDERSON, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Frank B. LOTT v. Betty J. LOTT.
    No. 55333.
    Supreme Court of Mississippi.
    Feb. 20, 1985.
    Harry P. Sneed, Jr., Wittmann & Sneed, Gulfport, for appellant.
    Hollis C. Thompson, Jr., Gulfport, for appellee.
   Appeal from Chancery Court, Harrison County; John S. Morris, Chancellor.

Before HAWKINS, PRATHER and ANDERSON, JJ.

AFFIRMED.


author: BOWEN, Presiding Judge.

text:
    Ex Parte State of Alabama. (In re STATE of Alabama v. Scott KIMBERLY).
    1 Div. 827.
    Court of Criminal Appeals of Alabama.
    April 24, 1984.
    Rehearing Denied June 12, 1984.
    Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen.; and Chris N. Galanos, Dist. Atty., and Lloyd Copeland, Asst. Dist. Atty., Mobile, for petitioner.
    Barry Hess, Mobile, for respondent.
   BOWEN, Presiding Judge.

Scott Kimberly was indicted and convicted for the second degree robbery of Rosemary Murray. The trial judge granted his motion for new trial and set aside the verdict of the jury because the District Attorney did not disclose an allegedly exculpatory oral statement made by a co-defendant. The State filed a petition for writ of mandamus requesting this Court to direct the trial court to rescind and hold for naught its order granting the motion for new trial and to reinstate the verdict of the trial jury.

On April 27, 1982, Kimberly filed a motion for discovery. Ground 10(a) of that motion sought “(a)ll material known to the prosecution, ... which is arguably exculpatory in nature or favorable to the accused or which may lead to exculpatory material, including ... (a) Evidence that defendant may have lacked knowledge of any of the acts alleged in the indictment.” The trial court granted this ground of the motion to the extent that he ordered, “Granted as to Counts ... 10 (as to exculpatory material, as to those matters which may be favorable to Defendant, said items shall be presented to the Court for ruling by Court as to whether such material is exculpatory under Brady).”

On the hearing of the motion for new trial, Lt. Roderick Roy of the Mobile Police Department testified that he interviewed Sandra Whatley at the Tennessee State Prison for Women in an effort to obtain evidence against the Kimberly brothers, David and Scott, in the robbery of Murray’s Antiques. Ms. Whatley is a co-defendant in the robbery.

During the interview, Ms. Whatley told Lt. Roy several different and conflicting stories. Roy concluded that he had not “gotten one straight answer” and “didn’t even write up a report on it because it was a waste of our time and money to go up there. * * * She just told us 15 different stories. And it wasn’t even worthwhile.” However, Ms. Whatley did tell Lt. Roy that “she was in the Mobile area at the time of the robbery with her brother, Jay Whatley, and one David Kimberly”, and that Scott Kimberly “was not in the Mobile area at the time of the robbery nor to her knowledge in the vicinity nor had she seen him for a considerable period of time.” However, Ms. Whatley also told Roy that just she and David were in Mobile, and then she, David, and Scott were there, and later that it might have been she, David, and Jay. There was no written or recorded account made of this interview by Lt. Roy. Defense counsel did not learn of these statements until after trial.

Assistant District Attorney Lloyd Copeland stated to the court that he did have this information before trial but “for whatever reason was under the mistaken impression, maybe it just was because of the obvious close association between all the principals involved in this thing that Barry (defense counsel) knew about it. I was wrong.” In arguing that the nondisclosure was not intentional, the prosecutor stated:

“And as I said, I’m not going to come in here and tell you that I didn’t know about it because these facts were communicated to me in a general way shortly before the trial that she had made on the one hand a statement basically of the tenor of what Barry has alleged that she was down here with Jay Whatley and David Kimberly and in the area without Scott; also, that she had made numerous contradictory statements, both contradictory within themselves and with everything else she said and had at one point even said that, I will come down and testify that they did the robbery, Scott and David.”

The trial judge found that this information was never presented to him for a ruling as to whether or not it was exculpatory under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), as he had ordered.

After arguments by the attorneys, the trial judge granted the motion for new trial:

“THE COURT: Well, throughout the brief of the Defendant there are these words: Suppression on behalf of the State. And I believe that to be a misnomer. I don’t believe that there was a suppression on behalf of the State. I think there was a nondisclosure on behalf of the State. The statements made by Miss Whatley no doubt are material. However, I doubt very, very seriously the value to the Defendant.”
******
“I find it highly unlikely that the statements will ever be used. However, there was a request for exculpatory material. In addition to that — and I believe this takes us out of the ambit of Brady— there was a Circuit Court order directing—not making reference—directing the State if they did not produce the material to the Defendant to produce it to the Court.”
* * * * * *
“We’re outside the ambit of Brady and the Constitution. Mr. Hess, I’m going to grant your motion, set aside the verdict of guilty by the jury and order a new trial.”

Because it is clear from the record that the trial judge improperly granted the motion for new trial and incorrectly interpreted the constitutional requirement of due process, we grant the writ of mandamus.

Initially, we find that mandamus is proper to prevent a gross disruption in the administration of criminal justice. Here, we find the existence of exceptional circumstances amounting to a judicial usurpation of power which justify the invocation of the extraordinary remedy of mandamus. Ex parte Nice, 407 So.2d 874, 878 (Ala. 1981). Here, as in Nice, it is the trial judge’s reasons for granting the new trial which compels our attention.

The trial judge found that Ms. Whatley’s statements are “no doubt material.” However, he also found it “highly unlikely that the statements will ever be used” and “doubt[ed] very, very seriously the value to the Defendant.” From the record before this Court, it is clear that the trial judge granted the motion for new trial because the State violated the circuit court’s order, not because the act of nonproduction violated constitutional principles or the holding of Brady v. Maryland, supra.

Brady held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith- of the prosecution.” 373 U.S. at 87, 83 S.Ct. at 1196-97. “A fair analysis of the holding in Brady indicates that implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial.” United States v. Agurs, 427 U.S. 97,104, 96 S.Ct. 2392, 2398, 49 L.Ed.2d 342 (1976).

When the prosecutor fails to disclose evidence specifically requested by the defendant a new trial should be granted if the nondisclosure “might have affected the outcome of the trial.” Agurs, 427 U.S. at 104, 96 S.Ct. at 2398. In Ex parte Watkins [Ms. 82-1190, February 3, 1984] (Ala.1984), our Supreme Court stated:

“Regardless of its admissibility or its trustworthiness, however, the crucial question is the significance of the suppressed information upon the question of Watkins’ guilt or innocence. Agurs, 427 U.S. at 112, n. 20 [96 S.Ct. at 2401, n. 20]. The Supreme Court, in Agurs, instructed:
“ ‘[T]he omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.’ 427 U.S. at 112-13 [96 S.Ct. at 2401-02].
“On its face, there can be no question that this evidence, if the defendant can prove its truthfulness, would create a reasonable doubt as to the guilt or innocence of the accused, because it identifies other individuals as those who committed the robbery.”

A new trial should not be granted simply because the prosecutor has failed to disclose evidence which the trial court ordered produced without a consideration of the materiality of the evidence and the effect of the evidence on the outcome of the defendant’s trial. “The principle of Mooney v. Holohan [294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935) ] is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused.” Brady, 373 U.S. at 87, 83 S.Ct. at 1197.

Here, it appears that the trial judge improperly granted a motion for new trial without properly considering the significance of the nondisclosed information upon the question of Kimberly’s guilt or innocence. The petition for writ of mandamus is granted and the circuit court is directed to set aside its order granting the new trial.

WRIT GRANTED; ORDER ISSUED.

All Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Scott KIMBERLY. (Re Ex parte State of Alabama) (In Re State of Alabama v. Scott Kimberly»
    83-1069.
    Supreme Court of Alabama.
    Dec. 7, 1984.
    Barry Hess of Hess, Atchison & Horne, .Mobile, for petitioner.
    Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., and Chris N. Galanos, Dist. Atty., and Lloyd Copeland, Asst. Dist. Atty., for respondent.
   MADDOX, Justice.

This case involves the state’s failure to provide a criminal defendant with requested exculpatory evidence.

Scott Kimberly was indicted for second degree robbery. Thereafter, he filed in Mobile Circuit Court a “Motion for Discovery, Production and Inspection,” requesting:

“Any and all evidence tending to exculpate this defendant.
“All material known to the prosecution, or which through due diligence could be learned from any law enforcement officer of other government agents or prospective witnesses in this case, which is arguably exculpatory in nature or favorable to the accused or which may lead to exculpatory material, including but not limited to:
“(a) Evidence that defendant may have lacked knowledge of any of the acts alleged in the indictment.
“(b) Evidence reflecting adversely on the credibility of any prosecution witness.
“(c) Evidence obtained from or relating to any prosecution information which may be exculpatory in nature.
“(d) Any Grand Jury testimony which may be exculpatory in nature.
“(e) The results of any direct or electronic surveillance or other oral interceptions which may be exculpatory in nature.
“The defense further requests that this Honorable Court include in any order issued pursuant to this motion a notation that, if subsequent to the compliance with an order issued pursuant to this motion, and prior to and during the trial, the District Attorney discovers additional material previously requested or ordered which is subject to discovery or inspection, he shall promptly notify defense counsel of the existence of the additional material.”

Subsequent to the trial court’s order granting discovery, but prior to the day of trial, Lt. Roderick Roy of the Mobile Police Department, interviewed Kimberly’s co-defendant, Sandra Whatley, who was incarcerated in Tennessee. Although she gave several conflicting statements, Whatley indicated that Kimberly had not been in the Mobile area at the time the robbery occurred. This information was passed along to the Mobile County District Attorney’s Office. The assistant district attorney in charge of the prosecution of Kimberly’s case, even though aware of the trial court’s order concerning exculpatory evidence, did not furnish the information to Kimberly’s defense counsel. Kimberly was convicted.

Sometime later, Kimberly’s counsel learned of the undisclosed exculpatory evidence and immediately moved for a new trial on the basis of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). A hearing was held on the motion, at which time Lt. Roy testified as to what Whatley had told him. Additionally, the prosecuting assistant district attorney testified that prior to trial he knew of What-ley’s statements but “mistaken[ly]” failed to disclose them in compliance with the court’s order.

Upon hearing arguments and testimony, the trial judge granted a new trial, stating:

“Well, throughout the brief of the Defendant there are these words: Suppression on behalf of the State. And I believe that to be a misnomer. I don’t believe that there was a suppression on behalf of the State. I think there was a nondisclosure on behalf of the State. The statements made by Miss Whatley no doubt are material. However, I doubt very, very seriously the value to the Defendant.
“I find it highly unlikely that the statements will ever be used. However, there was a request for exculpatory material. In addition to that — and I believe this takes us out of the ambit of Brady— there was a Circuit Court order directing — not making reference — directing the State if they did not produce the material to the Defendant to produce it to the Court.
“We’re outside the ambit of Brady and the Constitution. Mr. Hess, I’m going to grant your motion, set aside the verdict of guilty by the jury and order a new trial.”

The state promptly petitioned the Court of Criminal-Appeals for writ of mandamus setting aside the new trial order. The Court of Criminal Appeals, 463 So.2d 1106 (1984), granted the writ on the authority of Ex parte Nice, 407 So.2d 874 (Ala.1981). In its opinion, the Court of Criminal Appeals held:

“Here, as in Nice, it is the trial judge’s reasons for granting the new trial which compels our attention.
tt * * *
“[I]t is clear from the record that the trial judge improperly granted the motion for new trial and incorrectly interpreted the constitutional requirement of due process.
(I * * *
“From the record before this Court, it is clear that the trial judge granted the motion for new trial because the State violated the circuit court’s order, not because the act of nonproduction violated constitutional principles or the holding of Brady v. Maryland, supra.
“Brady held ‘that the suppression by the prosecution of evidence favorable to an -accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.’ 373 U.S. at 87 [83 S.Ct. at 1196-1197]. ‘A fair analysis of the holding in Brady indicates that implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial.’ United States v. Agurs, 427 U.S. 97, 104 [96 S.Ct. 2392, 2398, 49 L.Ed.2d 342] (1976).
“When the prosecutor fails to disclose evidence specifically requested by the defendant a new trial, should be granted if the nondisclosure ‘might have affected the outcome of the trial.’ Agurs, 427 U.S. at 104 [96 S.Ct. at 2398]. In Ex parte Watkins, 450 So.2d 163 (Ala.1984), our Supreme Court stated:
“ ‘Regardless of its admissibility or its trustworthiness, however, the crucial question is the significance of the suppressed information upon the question of Watkins’ guilt or innocence. Agurs, 427 U.S. at 112, n. 20 [96 S.Ct. at 2401, n. 20], The Supreme Court, in Agurs, instructed:
“ ‘ “[T]he omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.” ’ 427 U.S. at 112-13 [96 S.Ct. at 2401-02],
“ ‘On its face, there can be no question that this evidence, if the defendant can prove its truthfulness, would create a reasonable doubt as to the guilt or innocence of the accused, because it identifies other individuals as those who committed the robbery.’ ”
“A new trial should not be granted simply because the prosecutor has failed to disclose evidence which the trial court ordered produced without a consideration of the materiality of the evidence and the effect of the evidence on the outcome of the defendant’s trial. ‘The principle of Mooney v. Holohan [294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935)] is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused.’ Brady, 373 U.S. at 87 [83 S.Ct. at 1197].
“Here, it appears that the trial judge improperly granted a motion for new trial without properly considering the significance of the nondisclosed information upon the question of Kimberly’s guilt or innocence. ■ The petition for writ of mandamus is granted and the circuit court is directed to set aside its order granting the new trial.”

Although the Court of Criminal Appeals correctly stated the holdings of Brady, Agurs, and Watkins, supra, the Court’s application of those holdings to the present case was in error. In Agurs, supra, the Supreme court stated:

“The test of materiality in a case like Brady in which specific information has been requested by the defense is not necessarily the same as in a case in which no such request has been made....
“In Brady, the request was specific. It gave the prosecutor notice of exactly what the defense desired. Although there is, of course, no duty to provide defense counsel with unlimited discovery of everything known by the prosecutor if the subject matter of such a request is material, or indeed if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge. When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable.”

We would note that the trial court’s statement in granting a new trial is strikingly similar to the language in Agurs. Even though the trial court did express doubts about the admissibility and trustworthiness of Whatley’s statement, such doubts may not prevent the granting of a new trial where the nondisclosed evidence is material, having a potential effect on the outcome of the trial. Ex parte Watkins, [Ms. 82-1190, Feb. 3, 1984]. The record clearly shows that the trial court properly disregarded the unreliability of Whatley’s statement and granted Kimberly a new trial. It was correct in doing so.

The State argues that a new trial was granted solely because the prosecutor failed to comply with the trial court’s pretrial order. Implicit in that argument is the contention that, if this were the case, this Court would now be precluded from addressing the constitutional issues presented. This contention is unsupportable.

First, we cannot say, as did the Court of Criminal Appeals, that the nondisclosed evidence would not have affected the trial’s outcome, nor can we say that a new trial was granted solely because of the state’s failure to comply with the pretrial order. At best, the trial judge’s statements in granting a new trial appear to us to be ambiguous. While he apparently felt that the presence of a court order removed the requirements of Brady and Agurs, he nevertheless couched his order in terms of Agurs -type language. Therefore, we believe that constitutional requirements were a motivating factor, although perhaps not the principal motivating factor, in granting a new trial.

Second, even if the sole reason for granting a new trial was violation of the pre-trial order, the trial judge’s mistaken belief that the presence of a court order somehow eliminated the constitutional requirements set forth in Brady and its progeny was in error and in no way restricts our review of the constitutional issues. We are free to look at Kimberly’s request for exculpatory evidence, examine the non-disclosed evidence for materiality, and determine for ourselves whether due process mandated its disclosure. In this case it did.

In Watkins, supra, this Court held that evidence indicating that other individuals may have committed the robbery with which defendant was charged, if proved, could create a reasonable doubt as to defendant’s guilt. Therefore, the Court concluded that justice required disclosure of that evidence. We perceive the present situation to be, in principle, indistinguishable from Watkins. Here, there was a specific request for exculpatory evidence learned by law enforcement officers; the officers learned of the exculpatory evidence but failed to disclose it. Regardless of its reliability, there can be no doubt that the evidence provided by Whatley, if believed by the jury, would have had an ef-feet on the trial by exculpating Kimberly. Consequently, that evidence was material within the meaning of Brady, Agurs, and Watkins, and should have been revealed. The state’s failure to do so constituted a violation of due process, and the trial judge did not err in granting a new trial; therefore, we reverse the judgment of the Court of Criminal Appeals and remand the cause to that court for an order not inconsistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

TORBERT, C.J., and FAULKNER, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.


text:
    Ex parte State of Alabama In re STATE of Alabama v. Scott KIMBERLY.
    1 Div. 827.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1985.
   AFTER REMANDMENT

BOWEN, Presiding Judge.

The petition for writ of mandamus filed by the District Attorney is denied as mandated by the opinion of the Alabama Supreme Court in Ex parte Kimberly, 463 So.2d 1109 (Ala.1984). This cause is remanded to the jurisdiction of the circuit court.

WRIT DENIED; ORDER ISSUED.

All Judges concur.


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

text:
    THE FLORIDA BAR RE: RULES OF APPELLATE PROCEDURE.
    No. 65082.
    Supreme Court of Florida.
    Sept. 13, 1984.
    On Rehearing Feb. 14, 1985.
    John F. Harkness, Jr., Executive Director, Tallahassee, for The FI. Bar.
    John R. Beranek, Chairman, West Palm Beach, for The Fla. Bar Appellate Rules Committee.
    Talbot D’Alemberte and Thomas R. Julin of Steel, Hector & Davis and Richard J. Ovelmen, Gen. Counsel, Miami, for The Miami Herald Pub. Co.
    Gregory P. Borgognoni, Chairman, Appellate Court Rules Committee of Finley, Kumble, Wagner, Heine, Underberg, Manley and Casey, Miami, for petitioner.
   PER CURIAM.

The Florida Bar Appellate Rules Committee has submitted for our consideration proposed amendments to the Florida Rules of Appellate Procedure pursuant to Rule of Judicial Administration 2.130. Additional rule changes are necessary to implement new statutory provisions that permit the district courts of appeal to review certain questions certified by the county courts. The Miami Herald has, in a separate comment, requested that this Court amend Rule 9.310(b)(2) to eliminate the automatic stay for public records and public meeting cases, and the Supreme Court’s Article V Review Commission has recommended that, this Court broaden the authority of the district courts of appeal to sit en banc. The following is a brief explanation of the rule changes approved by this Court.

Rules 9.030(b)(4), 9.160, and 9.165 have been added to provide for the discretionary jurisdiction of the district courts of appeal to hear questions certified by the county courts. The rule implements the legislative enactment of chapter 84-303, sections 3 and 4, Laws of Florida, which provide for district court review of certified orders or judgments from county courts.

Rule 9.110 has been amended by the addition of section (k) which remedies the problem of determining when to appeal a partial final judgment. The change is intended to implement the criteria set forth by this Court in Mendez v. West Flagler Family Association, 303 So.2d 1 (Fla. 1974). The amended rule provides that a partial final judgment may be appealed immediately or after the final judgment is entered, except the rule requires an immediate appeal when the partial final judgment disposes of the entire case as to any party.

Rule 9.130(a)(3)(C)(v) is a new provision which has been added to permit the interlocutory review of non-final orders that determine whether a party is entitled to arbitration.

Rule 9.140 has been amended by the addition of a new subsection (b)(4), which sets forth special procedures for appeals by defendants in capital cases. The new provision adopts the procedures set forth by this Court in an administrative order dated May 6, 1981.

Rule 9.210 has been amended to provide for the inclusion of an argument summary in initial briefs and to require that copies of the supplemental authorities be attached to notices of supplemental authority.

Rule 9.310(b)(1) concerns posting of su-persedeas bonds in cases awarding money judgments. It has been amended to require a bond equal to the principal amount of the judgment plus twice the statutory rate of interest on the total amount upon which the party has an obligation to pay interest, and to allow multiple parties having common liability to file a single bond.

Rule 9.310(b)(2) has been modified to create an additional exception to the automatic stay provision for public bodies and public officers. The Miami Herald filed a comment to the proposed rules and suggested that we eliminate from the rule the automatic stay granted public bodies and public officers when they file appeals in cases dealing with public records and public meetings. The Herald asserted that the legislature expressed public policy in section 119.11(2), Florida Statutes (1979), by providing for only a limited automatic stay. That provision states:

(2) Whenever a court orders an agency to open its records for inspection in accordance with this chapter, the agency shall comply with such order within 48 hours, unless otherwise provided by the court issuing such order, or unless the appellate court issues a stay order within such 48-hour period. The filing of a notice of appeal shall not operate as an automatic stay.

(Emphasis added.) In Wait v. Florida Power & Light Co., 372 So.2d 420 (Fla. 1979), we held that the above provision unconstitutionally invaded the rule-making power of this Court. The Herald now asks that we include a substantially similar provision in Rule 9.310(b)(2). We conclude that we should implement the public policy evidenced by section 119.11(2), Florida Statutes (1979), and have modified the rule to provide for a 48-hour automatic stay in public meeting and public record cases. Any additional stay may, as in other cases, be entered by either the trial court or the appellate court.

Rule 9.320 has been amended to provide that a request for oral argument must be served by a party not later than the time the last brief of that party is due. The amended rule also sets out the time that will be allowed for oral arguments in both non-capital and capital cases.

Rule 9.331 has been amended to allow en banc proceedings in the district courts of appeal for cases that are of exceptional importance. This amendment is consistent with recommendation 11 of the Supreme Court’s Article V Review Commission. This change broadens the authority of the district courts of appeal to sit en bane and makes that authority consistent with other jurisdictions that provide for en banc proceedings.

Rule 9.340 has been amended to reinstate section (c), which was deleted in 1977, and directs that when a judgment of reversal is entered that requires the entry of a money judgment on a verdict, the mandate shall be deemed to require such money judgment to be entered as of the date of the verdict.

Rule 9.520, which concerns the Judicial Qualifications Commission, has been deleted and is relocated to Rule of Judicial Administration 2.140.

Rule 9.800 has been amended to set forth appropriate citation forms for recent Supreme Court and district court of appeal decisions that are not available in Southern Reporter. The rule provides for the proper temporary citation to either Florida Law Weekly or the court slip opinion. Courts are expected to continue citing to slip opinions. When a Southern Reporter citation becomes available, it must be used.

Rule 9.900 has been amended by the addition of section (h) which provides a form for a civil supersedeas bond.

Appended to this opinion are the amended and new rules of the Florida Rules of Appellate Procedure. Deletions are indicated by the use of struck-through type. New language is indicated by underscoring. All rules and statutes in conflict with the following rules are hereby superseded as of the effective date of these rules. The committee notes are not adopted by the Court. Rules 9.030(b)(4), 9.160, and 9.165 shall become effective October 1, 1984, at 12:01 a.m., in order to conform to the legislative enactment of chapter 84-303, sections 3 and 4, Laws of Florida. The remainder of the rules shall become effective January 1, 1985, at 12:01 a.m.

It is so ordered.

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

ADKINS, J.,

concurs with an opinion.

1. Rule 9.030 is amended as follows: Rule 9.030. Jurisdiction of Courts

(b) Jurisdiction of District Courts of Appeal.

(4) Discretionary Jurisdiction., The district courts of appeal may review a final judgment of a county court that certifies a question, if the question:

(A) has statewide application; and

(B) is of great public importance or will affect the uniform administration of justice.

2. Rule 9.110 is amended as follows: Rule 9.110. Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non-Jury Cases

(k) Except as otherwise provided herein, partial final judgments are reviewable either on appeal from the partial final judgment or on appeal from the final judgment in the entire case. If a partial final judgment totally disposes of an entire case as to any party, it must be appealed within thirty days of rendition.

1984 Committee Note: Subsection (k) was added to remedy a pitfall in the application of case law under Mendez v. West Flagler Family Association, 303 So.2d 1 (Fla.1974). Appeals may now be taken immediately or delayed until the end of the entire case, under the rationale of Mendez.

3. Rule 9.130 is amended as follows: Rule 9.130. Proceedings to Review Non-Final Orders

(a) Applicability.

(l) This- rule applies to review of the non-final orders authorized herein in the district courts of appeal and the circuit courts. Review of other non-final orders in such courts and non-final administrative action shall be by the method prescribed by Rule 9.100.

(2) Review of non-final orders in criminal cases shall be as prescribed by Rule 9.140.

(3) Review of non-final orders of lower tribunals is limited to those which:

(A) concern venue;
(B) grant, continue, modify, deny or dissolve injunctions, or refuse to modify or dissolve injunctions;
(C) determine:
(i) jurisdiction of the person;
(ii) right to immediate possession of property;
(iii) right to immediate monetary relief or child custody in domestic relations matters; or
(iv) the issue of liability in favor of a party seeking affirmative relief*;_or
(v) whether a party is entitled to arbitration.

4.Rule 9.140 is amended as follows: Rule 9.140. Appeal Proceedings in Criminal Cases

(a) Applicability. Appeal proceedings in criminal cases shall be as in civil cases except as modified by this rule.

(b) Appeals by Defendant.

(1) Appeals Permitted. A defendant may appeal:

(A) A final judgment adjudicating guilt;
(B) An order granting probation, whether or not guilt has been adjudicated;
(C) Orders entered after final judgment or finding of guilt, including orders revoking or modifying probation;
(D) An illegal sentence; and
(E) A sentence when required or permitted by general law.

A defendant may not appeal from a judgment entered upon a plea of guilty; nor may a defendant appeal from a judgment entered upon a plea of nolo contendere without an express reservation of the right of appeal from a prior order of the lower tribunal, identifying with particu-lady1 particularity the point of law being reserved.

(2) Commencement. The defendant shall file the notice prescribed by Rule 9.110(d) with the clerk of the lower tribunal at any time between rendition of a final judgment and 30 days following the entry of a written order imposing sentence. Copies shall be served on the State Attorney and Attorney General.

(3) Withdrawal of defense counsel after judgment and sentence. The attorney of record for a defendant in a criminal proceeding shall not be relieved of his duties, or be permitted to withdraw as counsel of record, except with approval of the lower tribunal upon good cause shown upon written motion, until after

(A) the following have been filed:
lr (i) Notice of appeal;
⅛ (ii) Statement of judicial acts to be reviewed, if a transcript will require the expenditure of public funds;
⅝ (iii) Directions to the clerk, if necessary; and
4- (iv) Designation of that portion of the reporter’s transcript necessary to support the statement of judicial acts to be reviewed, if a transcript will require expenditure of public funds.
Or:
(B) The time has expired for the filing of notice of appeal, and no such notice has been filed.
(4) Procedure in capital appeals.
(A) When the notice of appeal is filed in the Supreme Court, the Chief Justice will direct the appropriate chief judge of the circuit court to monitor the preparation of the complete record for timely filing in the Supreme Court.
(B) After the record is filed, the clerk will promptly establish a briefing schedule allowing the defendant 60 days from the date the record is filed, the State 45 days from the date the defendant’s brief is served, and the defendant 30 days from the date the State’s brief is served to serve their respective briefs. On appeals from orders ruling on applications for relief under Rule 3.850, Florida Rules of Criminal Procedure, and on resentenc-ing matters, the schedules set forth in subsection (5) of this rule will control.
(C) If any brief is delinquent, an order to show cause may issue pursuant to Rule 3.840, Florida Rules of Criminal Procedure, and sanctions may be imposed.
(D) Oral argument will be scheduled after the filing of the defendant’s reply brief.

(1) Briefs. (5) Procedure in all other cases. Defendant’s initial brief shall be served within 80 days of filing the notice. Additional briefs shall be served as prescribed by Rule 9.210.

5. Rule 9.160 is adopted as follows: Rule 9.160. Discretionary Proceedings to Review Decisions of County Courts

(a) Commencement. The jurisdiction of the district courts of appeal described in Rule 9.030(b)(4) shall be invoked by filing two copies of a notice, accompanied by the filing fees prescribed by law, with the clerk of the county court within 30 days of rendition of the order to be reviewed.

(b) Notice. The notice shall be substantially in the form prescribed by Rule 9.900. The caption shall contain the name of the lower tribunal, the name and designation of at least one party on each side, and the case number in the lower tribunal. The notice shall contain the date of rendition of the order to be reviewed and the basis for invoking the jurisdiction of the court.

(c) Accepting or Postponing Decision on Jurisdiction; Record. If the district court of appeal accepts or postpones decision on jurisdiction, the court shall so order and advise the parties and the clerk of the county court. Within 60 days thereafter or such other time set by the court, the clerk shall transmit the record.

(d) Briefs on Merits. Within 20 days of rendition of the order accepting or postponing decision on .jurisdiction, the petitioner shall serve the initial brief on the merits. Additional briefs shall be served as prescribed by Rule 9.210,

6. Rule 9.165 is adopted as follows: Rule 9.165. County Court Certification of Questions to the District Courts of Appeal

(a) Applicability. This rule applies to those proceedings in county courts which certify questions to the district courts of appeal pursuant to Rules 9.030(b)(4) and 9.160. The decision to certify a question is within the sole discretion of the county court.

(b) Certification. County courts may certify questions to the district courts of appeal in a final judgment if the question:

(1) has statewide application; and
(2) is of great public importance or will affect the uniform administration of justice.

(c) Requirement of a Written Opinion. To certify a question, the county court must write an opinion which must state:

(1) findings of fact and conclusions of law; and
(2) the question to be certified.

7. Rule 9.210 is amended as follows: Rule 9.210. Briefs

(b) Contents of Initial Brief. The initial brief shall contain in the following order:

(4) A summary of argument, suitably paragraphed, condensing succinctly, accurately, and clearly the argument actually made in the body of the brief. It should not be a mere repetition of the headings under which the argument is arranged. It should seldom exceed two and never five pages.

(4) (5) Argument with regard to each issue.

(5) (6) A conclusion, of not more than one page, setting forth the precise relief sought.

(g) Notice of Supplemental Authority. Notices of supplemental authority, without argument, may be filed with the court before a decision has been rendered to call attention to decisions, rules, or statutes which have been discovered after the last brief served in the cause. Copies of the supplemental authorities shall be attached to the notice.

1984 Committee Note: Subsection (b)(4) is new; subsection (b)(5) has been renumbered from former (b)(4); subsection (b)(6) has been renumbered from former (b)(5). Subsection (g) has been amended.

The summary of argument required by (b)(4) is designed to assist the court in studying briefs and preparing for argument; the rule is similar to rules of the various United States Courts of Appeals.

8.Rule 9.310 is amended as follows: Rule 9.310. Stay Pending Review

(b) Exceptions.

(1) Money Judgments. When the order is a judgment solely for the payment of money, a party may obtain an automatic stay of execution pending review is automatic, without the necessity of motion or order, on posting of a good and sufficient bond equal to the principal amount ordered to be paid, plus 15% thereof, — If the liability of a party is less than the entire-amount ordered — to—be paid, the-bond-required for that party shall be- equal to the amount of such liability, plus 15%, of the judgment plus twice the statutory rate of interest on .judgments on the total amount upon which the party has an obligation to pay interest. Multiple parties having common liability may file a single bond in-the amount of-the-eommon liability, plus 15% satisfying the above criteria.

(2) Public Bodies; Public Officers. The timely filing of a notice shall automatically operate as a stay pending review, except in criminal cases, when the State, any public officer in an official capacity, board, commission, or other public body seeks review; provided that ©s an automatic stay shall exist for 48 hours after the filing of the notice of appeal for public records and public meeting cases. On motion, the lower tribunal or the court may extend a stay, impose any lawful conditions1 or vacate the stay.

1984 Committee Note: Because of recent increases in the statutory rate of interest on judgments, subsection (b)(1) was amended to provide that two years’ interest on the judgment, rather than 15 percent of the judgment, be posted in addition to the principal amount of the judgment. In addition, the subsection was amended to cure a deficiency in the prior rule revealed by Proprietors Insurance Co. v. Valsecchi, 385 So.2d 749 (Fla. 3d DCA 1980). As under the former rule, if a party has an obligation to pay interest only upon the judgment, the bond required for that party shall be equal to the principal amount of the judgment plus two years’ interest upon it. In some cases, however, an insurer may be liable under its policy to pay interest on the entire amount of the judgment against its insured, notwithstanding that the judgment against it may be limited to a lesser amount by its policy limits. See Highway Casualty Co. v. Johnston, 104 So.2d 734 (Fla.1958). In that situation, the amended rule requires the insurance company to supersede the limited judgment against it by posting a bond in the amount of the judgment plus two years’ interest on the judgment against its insured, so that the bond will more closely approximate the insurer’s actual liability to the plaintiff at the end of the duration of the stay. If such a bond is posted by an insurer, the insured may obtain a stay by posting a bond in the amount of the judgment against it in excess of that superseded by the insurer. The extent of coverage and obligation to pay interest may, in certain cases, require an evidentiary determination by the court.

9. Rule 9.320 is amended as follows: Rule 9.320. Oral Argument

Oral argument may be permitted in any proceeding. A request for oral argument shall be a separate document served with the earliest brief of a party by a party not later than the time the last brief of that party is due. Each side will be allowed twenty (20) minutes for oral argument except in capital cases in which each side will be allowed thirty (30) minutes. Upon its own motion or that of a party, the court may require, limit, expand or dispense with oral argument.

10. Rule 9.331 is amended as follows: Rule 9.331. Determination of Causes in a District Court of Appeal En Banc

(a) En Banc Proceedings: Generally. A majority of the judges of a district court of appeal participating may order a proceeding pending before the court be determined en banc. A district court of appeal en banc shall consist of the judges in regular active service on the court. En banc hearings and rehearings shall not be ordered unless the case is of exceptional importance or unless necessary to maintain uniformity in the court’s decisions. The en banc decision shall be by a majority of the active judges actually participating and voting on the case. In the event of a tie vote, the panel decision of the district court shall stand as the decision of the court. If there is no panel decision, a tie vote will affirm the trial court decision.

(b) Hearings En Banc. A hearing en banc may be ordered only by a district court of appeal on its own motion. A party may not request an en banc hearing. A motion seeking the hearing shall be stricken.

(e) Rehearings En Banc.

(1) Generally. A rehearing en banc may be ordered by a district court of appeal on its own motion or on motion of a party. Within the time prescribed by Rule 9.330 and in conjunction with the motion for rehearing, a party may move for an en banc rehearing solely on the grounds that the case is of exceptional importance or that such consideration is necessary to maintain uniformity in the court’s decisions. A motion based on any other ground shall be stricken. A vote will not be taken on the motion unless requested by a judge on the panel that heard the proceeding, or by any judge in regular active service on the court. Judges who did not sit on the panel are under no obligation to consider the motion unless a vote is requested.

(2) Required Statement for Rehearing En Banc. A rehearing en banc is an extraordinary proceeding. In every case the duty of counsel is discharged without filing a motion for rehearing en banc unless one of the grounds set forth in (1) is clearly met. When filed by an attorney, the motion shall contain one or both of the following statements:

I express a belief, based on a reasoned and studied professional judgment, that the panel decision is of exceptional importance.

Or

I express a belief, based on a reasoned and studied professional judgment, that the panel decision is contrary to the following decision(s) of this court and that a consideration by the full court is necessary to maintain uniformity of decisions in this court: (citing specifically the case or cases).

/s/_

(3) Formal Order on Motion for Rehearing En Banc. An order on a motion for rehearing en banc shall be deemed denied upon a denial of rehearing or a grant of rehearing without en banc consideration. If rehearing en banc is granted, the court may limit the issues to be reheard, require the filing of additional briefs, and may require additional argument.

11. Rule 9.340 is amended as follows:

Rule 9.340. Mandate

(a) Issuance of Mandate. Unless otherwise ordered by the court or provided by these rules, the clerk shall issue such mandate or process as may be directed by the court after expiration of 15 days from the date of an order or decision. A copy thereof, or notice of its issuance, shall be served on all parties.

(b) Extension of Time for Issuance of Mandate. If a timely motion for rehearing or for clarification has been filed, the time for issuance of the mandate or other process shall be extendéd until 15 days after rendition of the order denying the motion or, if granted, until 15 days after the cause has been fully determined.

(c) When a judgment of reversal is entered which requires the entry of a money judgment on a verdict, the mandate shall be deemed to require such money judgment to be entered as of the date of the verdict.

1984 Committee Note:' Subsection (c) was added. It is a repromulgation of former Rule 3.15(a) which was deleted in 1977 as being unnecessary. Experience proved it to be necessary.

12. Rule 9.350 is amended as follows: Rule 9.350. Dismissal of Causes

(a) Dismissal of Causes When Settled. When any cause pending in the court is settled prior to decision on the merits, the parties shall immediately notify the court by filing a signed stipulation for dismissal.

(b) Voluntary Dismissal. A proceeding of an appellant or petitioner may be dismissed prior to a decision on the merits by filing a notice of dismissal with the clerk of the court without affecting the proceedings filed by joinder or cross appeal; provided that dismissal shall not be effective until 10 days after filing the notice of appeal or until 10 days after the time prescribed by Rule 9.110(b), whichever is later.

13. Rule 9.700 is amended by replacement of the prior chart with the following two charts:

Rule 9.700. Guide to Times for Acts Under Rules

1984 Committee Note: These two charts provide a visual guide to the times within which the various acts are required to be performed under these rules. They may not be relied upon or cited as a basis for relief from any mistake, however, as they are provided solely to facilitate convenient reference to the affected parties. All time computation, whether jurisdictional or otherwise, must be determined from the text of the applicable rules. The previous chart has been totally revised and replaced by the two charts which govern review by the Supreme Court and review by the district and circuit courts. The prior chart and the 1977 and 1980 committee notes have been deleted.

14. Rule 9.800 is amended as follows: Rule 9.800. Uniform Citation System

Except for citations to case reporters, all citation forms should be spelled out in full when used as an integral part of a sentence either in the text or in footnotes. Abbreviated forms as shown in this rule should be used whenever the citation is intended to stand alone either in the text or in footnotes.

(a) Florida Supreme Court:
(1) 1846-1886: Livington v. L’Engle, 22 Fla. 427 (1886).
(2) 1887-1948: Hanna v. Martin, 160 Fla. 967, 37 So.2d 579 (1948). (This is the last case for parallel citation.)
(3) 1948-date: Sullivan v. State, 303 So.2d 632 (Fla.1974).
(4) For recent opinions not yet published in Southern Reporter: Jenkins v: State, 9 F.L.W. 21 (Fla. Jan. 19. 1984) or Jenkins v. State, No. 63,000 (Fla. Jan. 19, 1984).
(b) Florida District Courts of Appeal:
(1) Schmauss v. Snoll, 245 So.2d 112 (Fla. 3d DCA 1971).
(2) For recent opinions not yet published in Southern Reporter: State v. Soto, 9 F.L.W. 382 (Fla. 5th DCA Feb. 9, 1984) or State v. Soto, No. 83-1543 (Fla. 5th DCA Feb. 9, 1984).
(c) Florida Circuit Courts and County Courts:
(1) Whidden v. Francis, 27 Fla.Supp. 80 (Fla. 11th Cir.Ct.1966).
(2) State v. Alvarez, 42 Fla.Supp. 83 (Fla.Dade Cty.Ct.1975).
(d) Florida Administrative Agencies:
(1) For decisions of the Public Employees Relations Commission: Indian River Educational Association v. School Board of Indian River County, 4 F.P.E.R. 114262 (1978).
(2) For decisions of the Florida Public Service Commission: In re: Application of Tampa Electric Co. for Authority to Increase Its Rates and Charges, 81 F.P.S.C. 2:120 (1981).
(3) For all other agencies: Insurance Co. v. Department of Insurance, 2 F.A. L.R. 648-A (Fla.Dept. of Insurance 1980).
(d)(e) ....
(e)ÍH ....
(í)íg> ....
(g)ih) ....
© m ••••
© (k) ....
(k)(i) ....
(¿)(m) ....
(in)(n) ....
(n) (o) ....
15. Rule 9.900 is amended as follows: Rule 9.900. Forms
(h) Civil Supersedeas Bond.
[Title of Court]
Case No._
Plaintiff,
v.
Defendant.
CIVIL SUPERSEDEAS BOND
We, - as Principal, and - as Surety, are held and firmly bound unto_in the principal sum of $-, for the payment of which we bind ourselves, our heirs, personal representatives, successors, and assigns, jointly and severally.
The condition of this obligation is: The above-named Principal has entered an appeal to the [Court] to review the [judgment or order] entered in the above case on fdate] , and filed in the records of said court in Book_at page-
NOW, THEREFORE, if the Principal shall satisfy any money judgment contained in the judgment in full, including, if allowed by law, costs, interest, attorney’s fees, and damages for delay in the event said appeal is dismissed or said judgment is affirmed, then this obligation shall be null and void; otherwise to remain in full force and effect.
Signed on [date] , at [place]
Principal
Signed on fdate] , at fplace]
Surety

[This form is intentionally not underscored.]

ADKINS, Justice,

concurring.

I concur in the opinion adopting the rules of appellate procedure.

However, the present rules of appellate procedure fail to solve a problem which is causing confusion in the case law of Florida. The district courts of appeal are frequently expressly recognizing in opinions that a decision is in conflict with a sister district court. Unless one of the parties brings a petition for certiorari to this Court the conflict remains in the reported case law and the trial judge is faced with the dilemma of selecting one of two conflicting district courts of appeals decisions as the proper case law. The law is unsettled.

In my opinion no mandate should issue in such a situation and the case should not be determined until it is sent to this Court for a resolution of the conflict. This could be accomplished by adopting a rule requiring that the file and the briefs be transferred to this Court without the necessity of further briefs. However, the parties could be allowed to file supplemental briefs on the question involved in the conflict.

ON REHEARING

PER CURIAM.

On September 13, 1984, this Court issued a decision approving certain amendments to the Florida Rules of Appellate Procedure. 463 So.2d 1114 (Fla.1984). The Florida Bar has moved for rehearing limited to the adoption of amendments to rules 9.030(b)(4), 9.160, and 9.165, each of which relates to the new process provided for the appeal of certified questions from county courts to district courts of appeal. We grant rehearing and agree to the suggested modifications. Accordingly, we repeal rules 9.030(b)(4), 9.160, and 9.165, as adopted in our prior opinion, and, in their place, adopt new rules 9.030(b)(4) and 9.160, as set forth below.

1. Rule 9.030 is adopted as follows:

Rule 9.030. Jurisdiction of Courts
(b)Jurisdiction of District Courts of Appeal.
4. Discretionary Review.10 District courts of appeal may in their discretion review by appeal:
(A) final orders of the county court otherwise appealable to the circuit court under these rules which the county court has certified to be of great public importance;
(B) nonfinal orders otherwise appeala-ble to the circuit court under rule 9.140(c) which the county court has certified to be of great public importance.
2. Rule 9.160 is adopted as follows: Rule 9.160. Discretionary Proceedings to Review Decisions of County Courts
(a) Applicability. This rule applies to those proceedings which invoke the discretionary jurisdiction of the district courts of appeal to review county court orders described in Rule 9.030(b)(4).
(b) Commencement. Any appeal of an order certified by the county court to be of great public importance must be taken to the district court of appeal. Jurisdiction of the district court of appeal under this rule shall be invoked by filing two copies of a notice and a copy of the order containing certification, accompanied by the filing fees prescribed by law, with the clerk of the lower tribunal. The time for filing the appeal shall be the same as if the appeal were being taken to the circuit court.
(c) Notice. The notice shall be in substantially the form prescribed by Rule 9.900(a) or Rule 9.900(c), depending on whether the order sought to be appealed is a final or a nonfinal order, except that such notice should refer to the fact of certification.
(d) Method of Certification. The certification may be made in the order subject to appeal or in any order disposing of a motion which has postponed rendition as defined in Rule 9.020(g). The certification shall include (1) findings of fact and conclusions of law and (2) a concise statement of the issue or issues of great public importance.
(e) Discretion.
(1) Any party may suggest that an order be certified to be of great public importance. However, the decision to certify shall be within the absolute discretion of the county court and may be made by the court on its own motion.
(2) The district court of appeal, in its absolute discretion, shall by order accept or reject .jurisdiction. Until the entry of such order, temporary .jurisdiction shall be in the district court of appeal.
(f) Scope of Review.
(1) If the district court of appeal accepts the appeal, it will decide all issues which would have been subject to appeal if the appeal had been taken to the circuit court.
(2) If the district court declines to accept the appeal, it shall transfer the case together with the filing fee to the circuit court which has appellate .jurisdiction.
(g) Record. The record shall be prepared and filed in accord with Rules 9.110(e) or 9.140(d), depending upon the nature of the appeal.
(h) Briefs. The form of the briefs and the briefing schedule shall be in accord with Rules 9.110(f), 9.140, 9.210, and 9.220, depending upon the nature of the appeal.
(i) Cross-Appeal. Cross-appeals shall be permitted according to the applicable rules only in those cases in which a cross-appeal would have been authorized if the appeal had been taken to circuit court.
(j) Applicability of Other Rules. All other matters pertaining to the appeal shall be governed by the rules which would be applicable if the appeal had been taken to circuit court.

1984 Committee Note: This rule was added in order to implement the amendments to sections 26.012 and 924.08 and the adoption of section 34.195 by the 1984 legislature. Section 34.195 authorizes only the certification of final judgments, but section 924.08 authorizes the certification of nonfinal orders in criminal cases. Therefore, this rule does not provide for appeals from nonfinal orders in civil cases. Under the rationale of State v. Smith, 260 So.2d 489 (Fla.1972), the authority to provide for appeals from nonfinal orders may rest in the supreme court rather than in the legislature. However, in keeping with the spirit of the legislation, the rule was drafted to permit certification of those nonfinal orders in criminal cases which would otherwise be appealable to the circuit court.

Sections 26.012 and 924.08 authorize only the certification of orders deemed to be of great public importance. However, section 34.195 refers to the certification of questions in final judgments if the question may have statewide application and is of great public importance or affects the uniform administration of justice. The committee concluded that any order which is certified to be of great public importance might have statewide application and that any order which would affect the uniform administration of justice would also be of great public importance. Therefore, the additional statutory language was deemed to be surplusage, and the rule refers only to the requirement of certifying the order to be of great public importance.

The district court of appeal may, in its discretion, decline to accept the appeal, in which event it shall be transferred to the appropriate circuit court for disposition in the ordinary manner. Except as stated in the rule, the procedure shall be the same as would be followed if the appeal was being taken to circuit court. The rule does not authorize review of certified orders by common law certiorari.

It is recommended that in those cases involving issues of great public importance, parties should file suggestions for certification prior to the entry of the order from which the appeal may be taken. However, parties are not precluded from suggesting certification following the entry of the order except that such suggestion, by itself, will not postpone rendition as defined in Rule 9.020(g).

10 9.160: Discretionary Review of County Court Decisions.
1984 Committee Note: Subsection (b)(4) was added in order to implement legislation authorizing district courts of appeal discretion to review by appeal orders and judgments of county courts certified to be of great public importance.

We direct that rule 9.165 be repealed since the content of that rule is now contained in new rule 9.160.

All rules and statutes in conflict with the above rules are hereby superseded as of the effective date of these rules. The committee notes are not adopted by the Court. These rules shall become effective March 1, 1985, at 12:01 a.m.

It is so ordered.

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

       9.160: Discretionary Review of County Court Decisions.

       9.165- County Court Certification of Questions to the District Courts of Appeal.

       So in original. — Rrobably should read -particularity.”


author: PER CURIAM. SHAW, Justice,

text:
    TAMIAMI TRAIL TOURS, INC., a Florida corporation, and D.C. Crosby, Petitioners, v. J.C. COTTON and Aubrey Jesse Cotton, Respondents.
    No. 63946.
    Supreme Court of Florida.
    Jan. 10, 1985.
    Rehearing Denied March 14, 1985.
    Albert M. Salem, Jr. of Salem, Musial & Morse, Tampa, for petitioners.
    Woodburn S. Wesley, Jr., of Cotton, Wesley & Poche, Shalimar, and Stanley Bruce Powell of Stanley Bruce Powell, P.A., Nice-ville, for respondents.
   PER CURIAM.

This is a petition to review Tamiami Trail Tours, Inc. v. Cotton, 432 So.2d 148 (Fla. 1st DCA 1983), on the ground that it conflicts with Berenson v. World Jai-Alai, Inc., 374 So.2d 35 (Fla. 3d DCA 1979), Hales v. Ashland Oil, Inc., 342 So.2d 984 (Fla. 3d DCA 1977), cert. denied, 359 So.2d 1214 (Fla.1978), and John B. Reid & Associates, Inc. v. Jimenez, 181 So.2d 575 (Fla. 3d DCA 1965). We have jurisdiction, Article V, section 3(b)(3), Florida Constitution, and we approve the decision in part and disapprove it in part.

Petitioners were sued by respondents in a two-count complaint. Count I alleged tortious interference and conspiracy to interfere tortiously with a business relationship of respondent, J.C. Cotton. Tamiami was joined in Count I on the basis of an alleged agency relationship. The count included William Stowe d/b/a City Cab Company as a defendant. A directed verdict was entered in Stowe’s favor. Count II alleged that Crosby had committed an assault and battery on A.J. Cotton in the course of the tortious interference with the business relationship. Tamiami was not expressly joined in this count.

The evidence presented at trial is set forth more fully in the district court opinion. For our purposes, it is enough to say that there was evidence that Crosby, who was the manager of Tamiami’s Fort Walton Beach bus station, committed numerous tortious acts which interfered with J.C. Cotton’s attempts to furnish taxicab service to bus passengers and also assaulted and battered A.J. Cotton. There was evidence tending to show that the tortious acts occurred both on and adjacent to the Tamiami bus station. The evidence also tended to show that J.C. Cotton persistently informed Tamiami of the early instances of Crosby’s misconduct and that Tamiami’s response was tepid and ineffective. The jury returned verdicts on both counts, assessing compensatory and punitive damages against both petitioners.

Petitioners presented nine points on appeal to the district court. The district court affirmed on all nine points but determined that only points one and five merited discussion. Point one is the issue in conflict. The district court canvassed the law on pleading a prima facie case of tortious interference with a business relationship and determined that four elements were required to establish such a case: (1) the existence of a business relationship, not necessarily evidenced by an enforceable contract; (2) knowledge of the relationship on the part of the defendant; (3) an intentional and unjustified interference with the relationship by the defendant; and (4) damage to the plaintiff as a result of the breach of the relationship. Cases were cited in support from the First, Second, and Fourth District Courts and one case from this Court, Dade Enterprises, Inc. v. Wometco Theatres, Inc., 119 Fla. 70, 160 So. 209 (1935). The district court rejected petitioners’ argument that element number 3 (intentional and unjustified interference with a business relationship) required a showing that the interference was intended to secure a business advantage over the plaintiff. The district court recognized that its rejection conflicted with the position of the Third District Court of Appeal. This point of law was critical to respondents’ case because there was no evidence or suggestion that Tamiami or Crosby received any business advantage from Crosby’s interference with respondents’ taxicab service.

We approve that portion of the decision of the district court and, to the extent they conflict, disapprove the decisions of the Third District Court of Appeal in Hales, John B. Reid & Associates, Inc., and Berenson. This issue is controlled by our decision in Dade Enterprises which does not require that the plaintiff in such suit establish that the defendant interfered with the business relationship in order to secure a business advantage. It may well be that most such cases will involve proof that the defendant’s motive was to secure a business advantage and, thus, that the interference was intentional. However, we see no logical reason why one who damages another in his business relationships should escape liability because his motive is malice rather than greed. The action is tortious, regardless of motive.

Next petitioners argue that the jury returned a verdict showing that Crosby was not acting within the scope of his employment when he committed the tortious acts and, thus, that Tamiami cannot be assessed punitive damages absent a showing of wanton and willful conduct on its part. The record shows that the jury was instructed that Tamiami could be held liable for the tortious acts of Crosby under two theories: (1)vicarious liability as a principal for the actions of its agent acting within the course and scope of his employment, or (2) as a possessor of property who fails to control the actions of its servant on the property, even though the servant is acting outside the course and scope of his employment. The jury found Tamiami liable under the second theory. However, this issue was nowhere framed in the pleadings.

The complaint alleged Tamiami’s liability only on the theories of conspiracy and agency. The conspiracy allegation was dismissed by the trial court upon defense motion after the close of plaintiff’s case-in-chief. The defense was first apprised of the new theory of liability under which plaintiff sought damages from Tamiami at the charge conference after all the evidence had been entered.

The defense attorney repeatedly objected to both the charge and the special interrogatory on the verdict which allowed finding Tamiami liable for Crosby’s actions outside the scope of his employment. No motion was ever made to conform the pleadings to the evidence, nor were the pleadings ever amended to include this theory. In short, Tamiami was sandbagged. It proceeded to trial on notice that it had to defend against charges of tortious interference with a business relationship for actions attributable to it on theories of conspiracy or agency. It won verdicts absolving it of liability on both theories. It was found liable on a theory it never had an opportunity to rebut at trial. While the theory itself is the law of the state, the procedural requirements of due process will not allow it to be raised in this manner.

Turning to Count II, we find even more serious problems. Primarily, inclusion of Counts I and II in the same complaint creates a misjoinder of claims and a misjoinder of parties. Count I embodies J.C. Cotton’s claim for tortious interference with a business relationship; Count II sets forth Aubrey Cotton’s claim for battery, albeit by and through his father as next friend. The causes of action were entirely separate. The interests of the parties plaintiff were not identical. This fact is acknowledged in the verdict form itself which names J.C. Cotton only as plaintiff in Count I and Aubrey Cotton only as plaintiff in Count II. Nor can the pro forma incorporation by reference of all of Count I into the first paragraph of Count II cure this defect. Count I as plead was irrelevant to Count II.

The problems concerning Tamiami’s vicarious liability discussed above are exacerbated here. Tamiami is never named as a party defendant in Count II. To the extent the wholesale incorporation of Count I may allege liability, it can only be on the theories alleged in Count I. Tamiami was found to be free of liability on either theory-

We therefore remand with directions to the trial court to vacate and set aside those portions of the judgment imposing liability on Tamiami Trail Tours for both compensatory and punitive damages.

It is so ordered.

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

SHAW, J., concurs in part and dissents in part with an opinion, in which ADKINS, J., concurs.

SHAW, Justice,

concurring in part and dissenting in part.

I concur with the portion of the majority opinion dealing with the required elements of pleading a prima facie case of tortious interference as well as that portion exempting Tamiami from liability under Count II of the amended complaint.

I disagree with the portion holding that Tamiami Trail Tours could not be held liable under Count I “as a possessor of property who fails to control the actions of its servants on the property, even though the servant is acting outside the course and scope of employment.”

Rule 1.190(b), Florida Rules of Civil Procedure provides:

(b) Amendments to Conform with the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure so to amend shall not affect the result of the trial of these issues. If the evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended to conform with the evidence and shall do so freely when the merits of the cause are more effectually presented thereby and the objecting party fails to satisfy the court that the admission of such evidence will prejudice him in maintaining his action or defense upon the merits. (Emphasis supplied.)

The majority opinion recognizes that in Florida a cause of action may be stated against the possessor of property who fails to control the actions of its servants on the property even though the servant is acting outside the course and scope of his employment, but concludes that the plaintiff in this instance should be denied recovery because of failure to plead or apprise the defendant Tamiami of this theory until the trial conference; ergo, Tamiami was sandbagged and denied due process. I respectfully disagree. If rule 1.190(b) has any vitality, it would appear to be tailor-made to cover this very eventuality. Tamiami was named as a party defendant and evidence in support of alternate liability was allowed to go before the jury. It was undisputed that Crosby as the agent/manager of the Fort Walton Tamiami Bus Station was given control of the station by Tamiami. There was evidence that he used his authority and position as manager to commit various torts on and adjacent to the premises which interfered with respondent’s business operations. Tamiami was repeatedly informed of Crosby’s misconduct by more than one person and failed to take proper corrective action. In other words, there was evidence sufficient to support a jury conclusion that Crosby, by virtue of his position as agent/manager, was engaging in conduct dangerous to members of the general public; that the employer, Tamiami, had notice of such conduct and the ability to control the agent in such a way as to substantially reduce the probability of harm to other persons and failed to do so. With this evidence before the jury, the judge properly instructed on the liability of a possessor of property who fails to control the actions of its servants on the property, even though the servant is acting outside the course and scope of his employment. McArthur Jersey Farm Dairy, Inc. v. Burke, 240 So.2d 198 (Fla. 4th DCA 1970). I see no reason why this Court should rewrite the trial script. I would therefore let stand the judgment in Count I as an issue tried pursuant to rule 1.190(b).

ADKINS, J., concurs.

      . Smith v. Ocean State Bank, 335 So.2d 641 (Fla. 1st DCA 1976); Nichols v. MoAmCO Corp., 311 So.2d 750 (Fla. 2d DCA 1975); Symon v. J. Rolfe Davis, Inc., 245 So.2d 278 (Fla. 4th DCA), cert. denied, 249 So.2d 36 (Fla.1971); Franklin v. Brown, 159 So.2d 893 (Fla. 1st DCA 1964).

      . Respondent Cotton had an arrangement with a local hospital whereby he picked up blood supplies from incoming buses at all hours of the day for expeditious delivery to the hospital. A manager of the hospital testified that Crosby interfered with this arrangement and that when she questioned Crosby about this interference, Crosby was profanely abusive, i.e., he cursed her out. The manager testified that she phoned Tamiami’s regional office in Tallahassee to complain of Crosby’s behavior and was profusely thanked for reporting the incident because Tam-iami was concerned about its public image.


author: OVERTON, Justice.

text:
    ASTRAL LIQUORS, INC., et al., Petitioners, v. DEPARTMENT OF BUSINESS REGULATION, etc., Respondent.
    No. 63904.
    Supreme Court of Florida.
    Jan. 24, 1985.
    Rehearing Denied March 8, 1985.
    Lane Abraham of Sy Chadroff, P.A., Miami, for petitioners.
    James N. Watson, Jr., Staff Atty., Tallahassee, for respondent.
   OVERTON, Justice.

This is a petition to review a decision of the Third District Court of Appeal reported as Astral Liquors, Inc. v. State, Department of Business Regulation, 432 So.2d 93 (Fla. 3d DCA 1983), in which that court declared valid section 561.32(2), Florida Statutes (1981). This statute states that the transfer of an existing beverage license is not a matter of right and that the transfer may be denied within the discretion of the Division of Alcoholic Beverages when administrative charges are pending against the owner of the license. The district court upheld the statute against a claim that the statute was an unconstitutional delegation of power by the legislature. We have jurisdiction, article V, section 3(b)(2), Florida Constitution, and we approve the decision of the district court.

The uncontroverted facts reflect the following:

On August 27, 1980, the sole stockholder and principal officer of Astral was convicted in federal court of the felony of conspiracy to import marijuana.

On November 26, 1980, the Division of Alcoholic Beverages and Tobacco filed administrative charges against Astral based on the criminal conviction of its principal stockholder and corporate officer.

On April 10, 1981, Astral contracted to sell its business, including the alcoholic beverage license, to the R.J. Mandell Corporation.

On May 26, 1981, Mandell filed an application for the transfer of the license.

On September 22, 1981, the Division of Alcoholic Beverages and Tobacco denied the transfer application on the ground that administrative proceedings involving the license were pending.

On December 8, 1981, an administrative hearing was conducted on the charges against Astral. A final order was entered on March 4, 1982, revoking the license on the ground that, because the owner and principal officer of Astral had been convicted of violating federal law, Astral was no longer qualified to retain the beverage license.

On April 1, 1982, an administrative hearing was held on the denial of Mandell’s transfer request. The hearing examiner recommended that the Division of Alcoholic Beverages and Tobacco transfer the license to Mandell. The division rejected the hearing officer’s recommendation and entered a final order denying the transfer application on July 26, 1982.

Notices of appeal from both final administrative orders were filed and the issues were consolidated for review by the district court. Mandell argued on appeal (1) that the division erred in denying its application to transfer Astral’s license because it did not explain its reasons or policy in denying the transfer, and (2) that section 561.32(2) is an unconstitutional delegation of power by the legislature because the statute fails to set forth guidelines or rules governing the action of the Division of Alcoholic Beverages and Tobacco in denying the transfer of beverage licenses. The district court held that the division had properly exercised its discretion to deny the transfer. 432 So.2d at 95. It noted that, as a general rule, the legislature should provide certain legislative standards and guidelines when delegating discretion to an agency. The court recognized, however, that there are two exceptions to the strict application of the general rule: when the subject of the statute concerns licensing and determination of fitness of license applicants and when the statute deals with the regulation of businesses which are operated as a privilege rather than as a right. Id. at 95-96.

We agree with the district court that section 561.32(2) does not involve an unconstitutional delegation of legislative power to the Division of Alcoholic Beverages and Tobacco. Where the legislature authorizes an agency of the state to enforce a statute enacted under the police power, the legislature is not required to provide specific rules to cover all conceivable situations that may confront the agency. The discretion granted an agency in these situations must, however, be “sufficiently governed by legislative standards as to constitute a judicially reviewable discretion.” Reynolds v. State, 383 So.2d 228, 230 (Fla.1980) (citing Florida State Board of Architecture v. Wasserman, 377 So.2d 653 (Fla. 1979)).

Discretionary authority is necessary for agencies involved in the issuance of licenses and the determination of fitness of applicants for licenses. See Permenter v. Younan, 159 Fla. 226, 31 So.2d 387 (1947); Solimena v. State, Department of Business Regulation, 402 So.2d 1240 (Fla. 3d DCA 1981), review denied, 412 So.2d 470 (Fla.1982); Brewer v. Insurance Commissioner & Treasurer, 392 So.2d 593 (Fla. 1st DCA 1981). This discretionary authority is particularly necessary where an agency regulates “occupations which are practiced by privilege rather than by right and which are potentially injurious to the public welfare.” Solimena, 402 So.2d at 1246. As we explained in North Broward Hospital District v. Mizell, 148 So.2d 1 (Fla.1962), in certain areas “it is impracticable to lay down a definite comprehensive rule.” Id. at 4, n. 11 (quoting 1 Am.Jur.2d Administrative Law § 116 (1962)). That does not mean, however, that the discretion exercised by the agency is unchecked. We emphasize that discretionary agency action must be subject to judicial review to determine whether it meets the standard of reasonableness. Id.

We emphasize that the operation of a liquor business is a privilege rather than a right, and the state may, within the exercise of its police power, regulate the sale and possession of alcoholic beverages as well as the conditions under which businesses selling alcoholic beverages operate. See State ex rel. Hoffman v. Vocelle, 159 Fla. 88, 31 So.2d 52 (1947). This regulation includes restrictions on the transfer of beverage licenses. Section 561.32(2) reasonably permits the state to deny the transfer of liquor licenses when the licensee has been charged with violation of the beverage laws. It is intended to restrict the transfer of a beverage license when' the licensee has been charged with conduct that subjects the license to revocation or suspension. That purpose is a reasonable and proper subject of legislative police power regulation. If a licensee were able to sell or otherwise transfer a beverage license before final action could be taken regarding the licensee’s violation of the beverage laws, the control of the licensing process could be easily circumvented. We reject the petitioner’s assertion that our decision in this case should be controlled by Carbo, Inc. v. Meiklejohn, 217 So.2d 159 (Fla. 1st DCA 1968), cert. denied, 225 So.2d 533 (Fla.1969).

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

It is so ordered.

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

BOYD, C.J., dissents.

       Section 561.32(2), Florida Statutes (1981), reads as follows:
      No one shall be entitled as a matter of right to a transfer of a license or interest in a license or to a change of executive officers or directors when the division has notified the licensee in writing that revocation or suspension proceedings have been or will be brought against the license; and the transfer of such license or financial interest in such license or the change of executive.officers or directors in such case shall be within the discretion of the division.


author: PER CURIAM. OVERTON, Judge,

text:
    In re CODE OF JUDICIAL CONDUCT AMENDMENT TO CANON 5C(2) (INVESTMENTS)
    No. 64703.
    Supreme Court of Florida.
    Jan. 24, 1985.
   PER CURIAM.

The Code of Judicial Conduct Revision Committee of the Conference of County Court Judges of Florida requests that this Court amend Canon 5C(2) of the Code of Judicial Conduct by deleting all language after the word “activity” or, in the alternative, by excepting closely held family businesses from the prohibition following the word “activity.”

Canon 5C presently provides in pertinent part:

C. Financial Activities.

(1) A judge should refrain from financial and business dealings that tend to reflect adversely on his impartiality, interfere with the proper performance of his judicial duties, exploit his judicial position, or involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves.
(2) Subject to the requirements of subsection (1), a judge may hold and manage investments, including real estate, and engage in other remunerative activity, but should not serve as an officer, director, manager, advisor, or employee of any business.

We reject the language of the proposed amendments, but we do amend the Canon to make clear that the Canon was not intended to prevent a judge from doing in a corporate capacity what he or she could do under Canon 5 in his or her individual capacity.

Accordingly, we amend Canon 5C(2) as follows:

(2) Subject to the requirements of subsection (1), a judge in an individual or corporate capacity may hold and manage investments, including real estate, and engage in other remunerative activity, but should not serve as an officer, director, manager, advisor, or employee of any business, except a closely held family business that does not conflict with subsection (1).

It is so ordered.

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

OVERTON, J., dissents with an opinion.

OVERTON, Judge,

dissenting.

I dissent. This modification of Canon 5C(2) of The Florida Bar Code of Judicial Conduct permits substantial involvement by members of the judiciary in the management and operation of family businesses. This change is contrary to the purpose and intent of the present Code of Judicial Conduct and, in my view, is a step backward from that code, which was drafted to give guidance to the judiciary to assure that the integrity and independence of the judiciary may be preserved.

Our present Code of Judicial Conduct was drafted, in part, in response to rising public concern about the extrajudicial financial and business activities of the judiciary. It was authored by a select American Bar Association committee that conducted numerous public hearings and received commentaries from all interested parties, including judicial and professional organizations. The code was unanimously adopted by the American Bar Association in 1972 and. was adopted by this Court in 1973, with the full support of The Florida Bar, the Conference of District Court of Appeal Judges, and the Conference of Circuit Judges. In re The Florida Bar— Code of Judicial Conduct, 281 So.2d 21 (Fla.1973).

The question of active judicial participation in family-owned business was directly addressed by the authors of the code, who believed that the old standards regulating the business activities of judges were too permissive. With regard to business interests, their aim was

to prevent the appearance to litigants, lawyers, and the public that patronizing the business in which a judge is actively involved will work to the advantage of the litigant, or that failure to patronize the business will work to his disadvantage.

E. Thode, Reporter’s Notes to Code of Judicial Conduct 81 (1973).

Canon 5 directs that “a judge should regulate his extrajudicial activities to minimize the risk of conflict with his judicial duties.” It prescribes how that direction must be carried out in four paragraphs: A. Avocational Activities; B. Civic and Charitable Activities; C. Financial Activities; and D. Fiduciary Activities. Paragraph C of Canon 5 presently reads, in part, as follows:

(1) A judge should refrain from financial and business dealings that tend to reflect adversely on his impartiality, interfere with the proper performance of his judicial duties, exploit his judicial position, or involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves.
(2) Subject to the requirements of subsection (1), a judge may hold and manage investments, including real estate, and engage in other remunerative activity, but should not serve as an officer, director, manager, advisor, or employee of any business.
(3) A judge should manage his investments and other financial interests to minimize the number of cases in which he is disqualified. As soon as he can do so without serious financial detriment, he should divest himself of investments and other financial interests that might require frequent disqualification.

Canon 5 was adopted to guide and regulate judicial officers’ business activities and intentionally limited their financial and personal involvement in businesses. The authors of the code recognized the potential hardship to incumbent judges and agreed that a grandfather clause exemption from the “no business provision” would be appropriate for judges who were involved in family businesses at the time the code was adopted. There was a clear intent, however, that new judges, knowing the full extent of these restrictions before accepting judicial appointments, should be prohibited from involvement in family businesses.

In adopting the code in 1973, this Court gave incumbent judges two years within which to come into compliance with the business interest provision. 281 So.2d at 21. We also approved a grandfather provision that allowed incumbent judges to continue serving as officers, directors, or nonlegal advisors of family businesses if they were so engaged at the time the code became effective. Id. at 28.

The purpose of Canon 5C is to emphasize that judges should limit fiscal and business activities to avoid the impression that litigants should patronize the business of a judge to receive an advantage in litigation before the judge. In my view, the amendment to Canon 5C(2) is contrary to the overall intent and purpose of the code. If it is all right to engage in a family business, why is it not also permissible for a judge to engage in a sole proprietorship? I see no valid distinction between the two situations, but I strongly believe there should be no such business activity and I would adhere to the strict prohibition now present in the code. To open this door and allow a judge to take an active part in family business activities is sending the wrong message to the judiciary and the public. It also aligns this state with a very limited minority of jurisdictions which do not fully subscribe to this strict Code of Judicial Conduct.