author: PER CURIAM. ALDERMAN, Justice,

text:
    THE FLORIDA BAR, Complainant, v. Clemens HAGGLUND, Respondent.
    No. 53459.
    Supreme Court of Florida.
    June 7, 1979.
    Thomas R. Hess, Bar Counsel, Daytona Beach, and H. Glenn Boggs, II, Asst. Staff Counsel, Tallahassee, for complainant.
    Andrew Baron, Orlando, and R. J. Beck-ham, of Beckham, McAliley & Proenza, Jacksonville, for respondent.
   PER CURIAM.

This disciplinary proceeding against a member of The Florida Bar is before the court upon report and recommendation of a referee and the petitions of both parties for review. Art. V, § 15, Fla.Const.; Fla.Bar Integr.Rule, art. XI, Rule 11.06(9), 11.09.

. Following a finding of probable cause by a Florida Bar grievance committee, a disciplinary trial was held before a referee. The referee’s essential findings of fact as to the items of misconduct alleged in the bar’s complaint are as follows:

In 1967, Mrs. Evelyn Robitaille purchased an auto tag business in Dade County, Florida. Mrs. Robitaille represented by no attorney other than Respondent received $7,500 from the Respondent which is evidenced both by a written agreement drawn by the Respondent and a promissory note to the Respondent, and gave the previous owner of the business a mortgage for $7,500. Respondent did not advise Mrs. Robitaille that they had conflicting interests. At this late date, more than ten years after the entry into said business arrangement, it is impossible to ascertain the exact nature of the business arrangement between the Respondent and Mrs. Robitaille, but that a finding is made that the Respondent was something more than a mere lender to the business, and in fact, had managerial control over the business, regularly frequented the office of the auto tag business, had certain financial responsibilities in conjunction with said business, and provided regular business and financial consultation to said business, and during the said entire period of time was also the attorney for said business, charging attorney’s fees for his services. The contention that the Respondent was a partner of Mrs. Robitaille in this business has neither been proved nor disproved. Respondent refers to himself as an investor.
Respondent invested $7,500 in this business, obtaining from Mrs. Robitaille both an option to purchase and a promissory note, Exhibits C and D.
The Respondent candidly admits that he did not advise or recommend that the complaining witness obtain independent legal advice and complaining witness confirms that she did not seek independent legal advice in this matter.
If Respondent ever intended to become a partner in the business, he exercised his authority only by the actual acts of management and physically attending to the affairs of the business. He never took the required examination imposed by Dade County upon persons engaged in this business and never exercised his option and the business terminated with a loss to all concerned as a result of a burglary in 1969.
That while the business was being operated, Respondent functioned in the dual capacity of attorney, for which he received fees, and an optionholder who took an active part in the management of the business.
The company that bonded the auto tag agency brought suit against Mrs. Robit-aille as she was technically the sole owner of the business venture as reflected by all public documents pertaining to same.
During the course of the business, Mrs. Robitaille made several payments to the Respondent towards the repayment of the loan or investment which had been made to her, and checks evidencing said payment have been admitted into evidence. Specifically, checks dated December 30,1967, in the amount of $500, January 29, 1968, in the amount of $500, and October 15, 1968, in the amount of $762.36, were all delivered to the Respondent as repayment upon said loan or investment. Additional evidence was presented to the Referee pertaining to repayment of said loan or investment, which evidence included numerous checks testified to by Mrs. Robitaille as having been payment upon said loan or investment. It is impossible to ascertain which part, if not all, of said payments were in fact made as repayment toward said loan or investment to the Respondent, but that a finding of fact is made that at least some part thereof, even though the exact amount thereof cannot be ascertained, was additional repayment towards said loan, if in fact it was a loan as distinguished from an investment, and that additional parts thereof included several payments to the Respondent which paid his fees for legal services rendered by him to the business.
After the automobile tag agency’s license was revoked and the business ceased operations, the Respondent and Mrs. Robitaille had a discussion regarding the termination of said business, and during said discussion, the Respondent advised Mrs. Robitaille that as the business was now defunct, he would not require or request her to make good on the balance of said $7,500, and that the Respondent did subsequently take a deduction from his Federal Income Tax Return due to the failure of Mrs. Robitaille to repay him the balance of the $7,500.
More than four years later in late 1973, the mother of Mrs. Evelyif Robitaille died. Shortly after the death of Evelyn Robitaille’s mother, Mrs. Robitaille called the Respondent and advised him of her death and told the Respondent that she would like to see him to confer with him about her mother’s Will and her mother’s estate. It was through this telephone conversation that the Respondent learned that Mrs. Robitaille stood to inherit a house from her mother.
Subsequent to that telephone conversation, the Respondent did in fact visit the home of Mrs. Evelyn Robitaille, and at Mrs. Robitaille’s home in the presence of Mr. Larry McGill, the Respondent conferred with Mrs. Robitaille about the death of Mrs. Robitaille’s mother and the existence of her mother’s Will, the status of the suit of the bonding company against Mrs. Robitaille upon the bond pertaining to the auto tag agency theft, and the intention of the Respondent to file a lawsuit against Mrs. Robitaille shortly thereafter. Regarding those matters which were conversed and those things that transpired at the home of Mrs. Evelyn Robitaille, specific findings of fact are made:
By the testimony of the Respondent, Clemens Hagglund, and by his own admission, he had, prior to the visit to the home of Mrs. Evelyn Robitaille, formed an intent to sue her and pursue said litigation to final judgment and collection thereon.
That a substantial conflict of interest existed between the Respondent, Clemens Hagglund, and Mrs. Evelyn Ro-bitaille. Said conflict may have existed as early as the entry into of the business relationship between the Respondent and Mrs. Robitaille in February of 1967, and definitely existed at the time that Clemens Hagglund formed his intent to sue Mrs. Robitaille and was in existence at the time that Clemens Hagglund went to the home of Mrs.
Robitaille.
Upon the visit to the home of Mrs. Robitaille, the Respondent should have advised«her to obtain independent counsel not selected or recommended by the Respondent, to fully represent her and defend her, in any claim that he would commence against her, but that he did not in fact do this. That Clemens Hagglund should not have continued to advise Mrs. Robitaille regarding any legal matters and should not have discussed the estate and the Will with Mrs. Robitaille, and should not have taken the Will with him to make arrangements with counsel of his selection for representation in said estate. That although the testimony is in conflict on this point, I find that the Respondent told Mrs. Robitaille not to actively defend any suit filed against her or to ignore his claim, and allow a default judgment to be entered against her so that his claim would be superior in time to that of a certain other claimant. This finding is reached because the Respondent, Clemens Hagglund, testified that while visiting Mrs. Robit-aille’s home, he advised her that he planned to sue her on the unrepaid loan. Yet the Respondent also testified that he and Mrs. Robitaille were still friendly and that she had asked him to deliver her mother’s Will to another attorney, a friend of the Respondent, as a favor so that this other attorney could handle the probate of her mother’s estate. In weighing the contradictory testimony, I find that it is unlikely that Mrs. Robitaille would have remained friendly with the Respondent and ask the Respondent to deliver a copy of her mother’s Will to an attorney who was a friend of the Respondent unless the Respondent and Mrs. Robitaille had arrived at some understanding regarding the lawsuit filed by Respondent against Mrs. Robitaille to the effect that it was a “friendly” lawsuit, or at least somehow not a threat to Mrs. Robitaille. Respondent assured Mrs. Robitaille that the • judgment would not be enforced against her.
That in April of 1974, the Respondent did in fact file a complaint in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, styled Hagglund v. Robitaille, Case No. 74-9643.
In May of 1974, the Respondent executed and subsequently filed an Affidavit of Proof in his case against Mrs. Robit-aille stating, “That no payment, either of interest or principle (sic) has ever been made by the Defendant, EVELYN RO-BITAILLE.” The Respondent either knew or should have known with the use of reasonable diligence that said Affidavit was incorrect at the time it was prepared and filed.
That Respondent received a Final Judgment by default in the case of Hag-glund v. Robitaille on August 20, 1974, for $7,500 plus $1,000 attorney’s fees and costs of $32.50, for a total judgment of $8,532.50, which Final Judgment was subsequently assigned to his son, Paul H. Hagglund in 1976.
That subsequent to the entry of the Final Judgment as referenced above in paragraph 16, the Respondent admits that he learned that the Affidavit sworn by him in support of the default judgment was false and incorrect and that he acknowledged at the time of the Grievance Committee hearing that certain payr ments had been made towards the loan or investment, so that the amount of the Final Judgment was greater than it should have been, if any judgment at all was justified, but that the Respondent, who was then practicing law with his son under the law firm name of Hagglund, Matthews and Hagglund, was aware of continued efforts to levy and execute upon said judgment which was incorrect, in excess of amount, and did nothing to correct said judgment or notify the court of the infirmities therein.
During the course of his own testimony, Respondent acknowledged that although the judgment had been assigned to his son, his son was his law partner, that he still had control over said judgment, and intended to satisfy it in part to whatever extent Mrs. Robitaille could affirmatively prove that she made payment on the note or investment prior to the burglary and the demise of the business above referred to. I find that this offer on the part of Respondent is largely meaningless as a great portion of the transactions between the parties was cash. There are in existence today no adequate records as to how much was paid to Respondent or whether the Respondent was in effect a creditor or an investor and whether Respondent has received all or most of his loan or investment or just those individual items referred to in paragraph 10 above.
I find that in taking these courses of action the Respondent was acting in a callous and indifferent manner and using the superior position of an attorney and adviser to a person of lesser education and lesser sophistication to take an unfair advantage over said person.

Our review of the record reveals that the referee’s findings of fact are supported by .the evidence.

The referee recommended that the respondent be found guilty of violating Florida Bar Integration Rule, article XI, Rule 11.02(3)(a), and Florida Bar Code of Professional Responsibility, Disciplinary Rules 1— 102(A)(5) and 5-104(A). We approve this recommendation and find the respondent guilty of these violations.

The referee’s report includes a recommendation as to the disciplinary measures to be applied. Fla.Bar Integr.Rule, art. XI, Rule 11.06(9)(a)(3). The referee recommends that the respondent be suspended from the practice of law for a period of two months and thereafter

until he may offer proof that any judgment that he has recovered in the aforesaid suit of Hagglund v. Robitaille shall be satisfied, discharged or vacated without cost to Mrs. Robitaille and that she shall have been reimbursed for any payment that she shall have made or to any portion of that judgment upon which execution shall have been entered. .

Upon our review of the circumstances of this case, we are of the view that the recommended suspension is unwarranted. It is our judgment that the respondent should receive a public reprimand.

We agree with the sentiment expressed by the referee and by The Florida Bar that the complaining witness should not be allowed to suffer financially from the respondent’s ethical violations. However, the only way to order restitution, within the contemplation of the Florida Bar Integration Rule, is as a condition imposed along with suspension. Fla.Bar Integr. Rule, art. XI, Rule 11.10(3). Since we here decide that suspension is unwarranted, the vindication of the complaining witness’ grievances against the respondent must be left to ordinary civil proceedings.

We hereby reprimand Clemens Hagglund for Violating Florida Bar Integration Rule, article XI, Rule 11.02(3)(a), and Florida Bar Code of Professional Responsibility, Disciplinary Rules 1-102(A)(5) and 5-104(A). The costs of these proceedings in the amount of $1,158.27 are taxed against the respondent.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD and HATCHETT, JJ., concur.

ALDERMAN, J., dissents with an opinion, with which OVERTON and SUND-BERG, JJ., concur.

ALDERMAN, Justice,

dissenting.

I dissent to that portion of the majority opinion which disapproves the referee’s recommended disciplinary penalty of suspension from the practice of law for a period of two months and imposes a public reprimand instead. The referee’s recommended penalty is warranted under the present circumstances. My concern is not with the matters which occurred ten years ago but rather with respondent’s reprehensible misconduct in executing and filing a false affidavit of proof as to the amount due and owing him from Mrs. Robitaille, in support of his motion for default judgment against her. Respondent admits that certain payments had been made toward the loan or investment so that he knew the amount of the final judgment against Mrs. Robitaille was greater than it should have been. Furthermore, he was aware of the continued efforts to levy and execute upon the incorrect judgment, yet he did nothing to inform the court of the judgment’s infirmities. Apparently, it was because of respondent’s advice to Mrs. Robitaille that the default judgment was entered against her. While advising Mrs. Robitaille on other legal matters, respondent told her not to actively defend any suit filed by him against her or to ignore his claim and to allow the default judgment. At no time did he advise her, as he should have, to obtain independent counsel to represent her in any claim that he would commence against her. The referee correctly terms respondent’s conduct toward Mrs. Ro-bitaille as callous and indifferent.

In my view, a two-months suspension is entirely appropriate. Accordingly, I would approve the referee’s recommended disciplinary measure that respondent be suspended from the practice of law for a period of two months and thereafter until he offers proof that any judgment that he has recovered in the suit of Hagglund v. Robitaille has been satisfied, discharged, or vacated without cost to Mrs. Robitaille, that she has been reimbursed for any payment that she has made or any portion of that judgment upon which execution has been entered, and that the respondent be required to pay all costs of this proceeding.

OVERTON and SUNDBERG, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Sy GAER, Appellant, v. STATE of Florida, Appellee.
    No. 54132.
    Supreme Court of Florida.
    June 7, 1979.
    Vincent J. Flynn, of Flynn, Rubio & Tar-koff, Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Janet Reno, State’s Atty., Ira N. Loewy, Asst. State’s Atty., Miami, for appellee.
   PER CURIAM.

Appellant, an attorney, was charged with violations of Florida Statutes, sections 877.-02 (solicitation of legal services), 648.44 (aiding and abetting the recommendation of counsel by a bail bondsman), and 777.04 (conspiracy). The conspiracy charge was dismissed. After his attacks on the Information were rejected on state and federal constitutional grounds, appellant’ entered pleas of nolo contendere. He reserved the right to appeal the court’s rulings on the constitutional issues. Jurisdiction vests in this court under article V, section 3(b)(1) of the Florida Constitution.

We find the appellant’s equal protection arguments to be without merit. All of the other constitutional issues raised by appellant were recently determined and fully discussed in Pace v. State, 368 So.2d 340 (Fla.1979). We find further discussion of these issues unnecessary.

The convictions are affirmed.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


author: SUNDBERG, Justice.

text:
    Donald WHITE, Appellant, v. MARINE TRANSPORT LINES, INC., Appellee.
    No. 54176.
    Supreme Court of Florida.
    June 7, 1979.
    Earl R. McMillin, Tampa, for appellant.
    Nathaniel G. W. Pieper, of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for appellee.
   SUNDBERG, Justice.

This case presents the issue of whether the county court exceeded its jurisdiction by granting an award of $3,373.85, when the original claim sought damages in the sum of $1,496.46 plus costs and an unspecified amount for attorneys’ fees. Because the Circuit Court of the Thirteenth Judicial Circuit for Hillsborough County, in reviewing that judgment of the county court, construed article V, section 20(c)(4), Florida Constitution, we have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution.

Appellant Donald White sued appellee Marine Transport Lines, Inc. in the County Court for Hillsborough County, seeking damages in admiralty in the amount of $1,496.46 for maintenance, unearned wages and repatriation expense. Appellant, relying upon Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962), also sought an unspecified amount for attorneys’ fees due to the alleged willful and callous rejection of his claim. The county court awarded appellant $1,638.85 for maintenance, repatriation and wages; $1,344.46 for attorneys’ fees; and $390.54 for costs, aggregating $3,373.85.

Marine Transport Lines appealed to the circuit court, contending that the judgment was void as it exceeded the jurisdictional limits of the county court. The circuit court vacated the judgment and remanded the cause either for entry of judgment within the jurisdictional limits of $2,500 or for transfer to the circuit court. This appeal ensued.

The pertinent provisions of article V, section 20(c)(4), are as follows:

(c) After this article becomes effective, and until changed by general law consistent with sections 1 through 19 of this article:
(4) County courts shall have original jurisdiction ... of all actions at law in which the matter in controversy does not exceed the sum of two thousand five hundred dollars ($2,500.00) exclusive of interest and costs, except those within the exclusive jurisdiction of the circuit courts. .

This constitutional provision was implemented through the enactment of section 34.01, Florida Statutes (1975), which reads in pertinent part:

(1) County courts shall have original jurisdiction ... of all actions at law in which the matter in controversy does not exceed the sum of $2,500, exclusive of interest and costs ....

From the foregoing it is apparent that the county courts of Florida are courts of limited jurisdiction.

While conceding that the county court is a court of limited jurisdiction, appellant maintains that jurisdiction of the court is to be determined by the sum demanded in good faith or actually put in controversy and not the amount of the recovery. Richter Jewelry Co. v. Harrison, 147 Fla. 732, 3 So.2d 387 (1941); Seaboard Air Line Railway v. Ray, 52 Fla. 634, 42 So. 714 (1906). He asserts that the proper time to make this determination is at the time the lawsuit is instituted. If at that time the plaintiff alleges in good faith that the amount prayed for is less than $2,500, jurisdiction vests in the county court, and subsequent events do not operate to divest the court of jurisdiction. To hold otherwise, appellant argues, would require the plaintiff to monitor his lawsuit at all stages and to suggest transfer to the circuit court when the $2,500 maximum is exceeded during the course of the litigation. This is contrary to the well settled rule in other jurisdictions in cases involving interest on damages, that where circumstances are such as to vest jurisdiction at the time the action is brought it cannot be ousted by any subsequent event. The judgment must be predicated on the state of things existing when the suit was commenced. Tappin v. MacLean, 117 Misc. 757, 192 N.Y.S. 196 (Bronx Co. 1922).

Appellee, on the other hand, urges that the authorities cited by appellant are inap-posite. It also contends that the exact issue here under review was resolved adversely to appellant in Henry’s Drive-In, Inc. v. Ideal Rock Products Co., 140 So.2d 137 (Fla. 3d DCA 1962), and Prudential Insurance Co. of America v. Lamm, 218 So.2d 219 (Fla. 3d DCA 1969). In the former case the civil court of record for Dade County entered a judgment which included an award of attorneys’ fees exceeding the jurisdictional limit of the court. The district court of appeal noted that the jurisdictional defect was fundamental and raised the issue sua sponte. It then ruled that the trial judge was without jurisdiction to enter the judgment as it exceeded the court’s jurisdiction. The judgment was vacated and the cause remanded so that it could be transferred to the circuit court.

The case of Prudential Insurance Co. of America v. Lamm involved a suit by an insured to recover benefits under an insurance policy and the statutory attorneys’ fee. The trial court entered final judgment for the plaintiff for policy benefits in the amount of $3,000 and awarded attorneys’ fees of $3,500, thus exceeding the jurisdictional limit of the court by $1,500. The district court of appeal vacated the lower court judgment with directions to transfer the cause to the circuit court.

Appellee directs us also to Louisville and Nashville Railroad Co. v. Sutton, 54 Fla. 247, 44 So. 946 (1907), where in reliance on Seaboard Air Line Railway v. Ray, supra, the Court held that the jurisdiction of the county judge is determined by the actual demand made or the actual damage claimed, but that a judgment entered for an amount in excess of the amount over which the court has jurisdiction is void. In Sutton the plaintiff sought damages from the railroad for the death of his cow killed by defendant’s train at a point on the company’s railroad which was, contrary to state law, not fenced. Plaintiff claimed $75 damages for the value of the cow plus a reasonable attorney’s fee of $24, aggregating $99. The jury returned a verdict in favor of the plaintiff and assessed his damages at the sum of $75. Judgment was entered by the court for $150 damages, $15 attorney’s fee, and $22.35 costs. The judgment awarded damages of $150 because a statute then in existence made a railroad liable under the circumstances of that case for double the value of the animal. Although the initial good faith demand of the plaintiff was within the jurisdictional limit of the county court, this Court held that the county judge had judicial power only to adjudicate and enter judgment for a demand or damages claimed or penalty not exceeding the jurisdictional limit of $100; hence the judgment entered for $150 damages in favor of the plaintiff was void.

After review of the authorities cited by the parties, we are persuaded that the decision of the circuit court below should be affirmed. The primary authorities cited by the appellant, Seaboard Air Line Railway v. Ray and Richter Jewelry Co. v. Harrison, are distinguishable because neither deals with the power of a court of limited jurisdiction to enter judgment, exclusive of interest and costs, in excess of its stated jurisdictional limit. In Ray the plaintiff brought an action for damages against the railroad for negligently permitting 366 crates of cantaloupes to be damaged. In his prayer for relief, plaintiff asserted that the injury amounted to a loss of at least 25 cents per crate and claimed damages for $125. • The jurisdiction of the county court on that date was limited to $100. The defendant demurred to the complaint which was overruled, and when the defendant failed to plead, judgment was rendered against it for the sum of $91.50 damages plus costs. The circuit court affirmed the judgment rendered by the county judge and certiorari review was sought in this Court. In granting the writ of certiorari and quashing the affirmance by the circuit court, this Court held that the amount of the plaintiff’s demand was the test for the jurisdiction of the county judge. Since that demand exceeded the limited jurisdiction of the county court, no jurisdiction attached in the first instance and the only proper order which could be entered was one of dismissal.

In Richter Jewelry Co. v. Harris, the converse occurred. Plaintiff brought an action for conversion or loss of a diamond ring by a bailee. The value of the ring was alleged to be $10,000. The jury returned a verdict for plaintiff in the sum of $3,243.50. The record revealed litigation of the identical controversy between the same parties in the Civil Court of Record of Dade County prior to institution of the circuit court action, resulting in a nonsuit. The plaintiff testified in the first action that the ring had a value of less than $5,000. This Court concluded that the circuit court was without jurisdiction and should have dismissed the action. In reaching its conclusion the Court recited the general rule that where jurisdiction is dependent upon the amount involved in the case, the question turns not upon the amount claimed or the amount actually recoverable, but upon the amount claimed and put in controversy in good faith. Obviously, the amount claimed in the circuit court action was not in good faith.

It is apparent, then, that the test for jurisdiction is twofold. In the first instance, the good faith demand of the plaintiff at the time of instituting suit determines the ability of the particular court to entertain the action. However, notwithstanding the bona fides of the plaintiff’s demand at the time of institution of suit, as a matter of judicial power the county court is precluded from entering a judgment for damages in excess of its mandated jurisdiction. Although appellant met the first test and his action was cognizable in county court; that same court was without judicial power to enter a judgment in excess of $2,500, exclusive of costs and interest.

It should be noted that the problem encountered here is resolved as.to actions at law filed on and after October 1, 1977. By chapter 77-135, Laws of Florida, effective October 1, 1977, section 34.01(1), was amended to vest jurisdiction in the county courts over actions at law in which the matter in controversy does not exceed the sum of $2,500, exclusive of interest, costs and attorneys’ fees.

For the reasons stated, the order of reversal entered by the circuit court is affirmed.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, HATCHETT and ALDERMAN, JJ., concur.

OVERTON, J., dissents.

      . Because one of the alternatives directed on remand was transfer of the case to the Circuit Court of Hillsborough County, we would observe that, upon principles of collateral estop-pel, if transfer to the circuit court is effected the circuit judge will not be precluded, in his discretion, from entering judgment on the record made in the county court.


author: ENGLAND, Chief Justice. ADKINS, Justice,

text:
    STATE of Florida, Appellant, v. Reo Ulrich HILL, Appellee.
    No. 54280.
    Supreme Court of Florida.
    June 7, 1979.

      Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., Miami, for appellant.
    David P. Horan, Key West,- and Mallory H. Horton, of Horton, Perse & Ginsberg, Miami, for appellee.
   ENGLAND, Chief Justice.

We have for review by direct appeal an order of the Monroe County Circuit Court declaring section 370.151(2), Florida Statutes (1977), to be unconstitutional. The statute, which prohibits unauthorized shrimping in certain particularly-described areas of the Tortugas shrimp beds, was held invalid by the trial court because a portion of the restricted area lies outside the territorial boundaries of the state as set forth in article II, section 1(a) of the Florida Constitution. We reverse.

On February 14, 1978, officers of the Florida Marine Patrol observed Reo Hill shrimping in the prohibited Tortugas shrimp nursery area at a point within the territorial waters of the state — i. e., within three marine leagues of the Florida coast— and issued a citation charging him with a violation of section 370.151(2). After formal charges were lodged by information, Hill filed a written motion to dismiss attacking the constitutionality of the statute on the ground that the legislature, by purporting to prohibit shrimping in an area which extends in part beyond Florida’s territorial boundaries, had acted in excess of its lawful jurisdiction. The trial court granted the motion to dismiss and held the statute invalid, finding it “immaterial that the Defendant was arrested within the boundaries of the State of Florida . . . . ”

Unlike the trial judge, we regard the uncontested fact that Hill’s conduct occurred within the territorial jurisdiction of the state to be not only material, but dispositive of this case. Regardless of whether or not the state may prohibit shrimping in waters outside its boundaries, it clearly possesses the authority to proscribe such activities in- areas subject to its jurisdiction. It is a longstanding principle of constitutional adjudication that

[a] statutory regulation may, consistently with organic law, be applied to one class of cases in controversy, and may violate the Constitution as applied to another class of cases. This does not destroy the statute; but imposes the duty to enforce the regulation when it may be legally applied.

Since this statute may be legally applied to Hill under the factual circumstances presented here, he has no standing to complain that it might not be constitutionally enforceable against one who commits a violation in that portion of the prohibited area lying outside the territorial jurisdiction of the state. See, e. g., State ex rel. Hoffman v. Vocelle, 159 Fla. 88, 98, 31 So.2d 52, 57 (1947); Steele v. Freel, 157 Fla. 223, 226-27, 25 So.2d 501, 503 (1946); State ex rel. Buford v. Shepard, 84 Fla. 206, 219, 93 So. 667, 671 (1922).

The trial judge erred in holding that section 370.151(2) is invalid, as the constitutional issue was not presented by a proper party in this case. Accordingly, the order of the trial court is reversed and this cause is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

BOYD, OVERTON, SUNDBERG and ALDERMAN, JJ., concur.

ADKINS, J., dissents with an opinion.

HATCHETT, J., dissents.

ADKINS, Justice,

dissenting.

I dissent.

It is conceded that section 370.151(2), Florida Statutes (1977), included an area outside the territorial boundaries of the State of Florida. Not only does the statute prohibit shrimping within the State of Florida, but, it also prohibits shrimping in an area outside the State of Florida. The legislature of the state has no authority to extend the territorial limits of the state so as to prohibit shrimping beyond the territorial limits. See Mounier v. State, 178 So.2d 714 (Fla.1965).

The statutory description of the prohibited area was defective and the defect cannot be cured by showing that the offense was, in fact, committed within the territorial jurisdiction of Florida. See Little v. Reo Hill Fisheries, Inc., 322 So.2d 557 (Fla.1975).

I recognize that the state has the power to enact legislation regulating and controlling the operation of vessels and acts of citizens of this state on water outside the territorial limits of the state, as well as on waters within its territorial limits. Burns v. Rozen, 201 So.2d 629, 630 (Fla. 1st DCA 1967). However, this does not mean that the State of Florida can regulate fishing and shrimping outside the territorial limits of the state. Following the decision of the majority opinion, all citizens in the world could shrimp in the prohibited area lying outside Florida’s territorial limits except the citizens of Florida.

To say that the statute is valid because it is applicable only to the territorial limits of Florida, is to say that you can break a leg “a little bit” or violate a law “a little bit.” The statute is either valid or invalid on its face.

It is ridiculous to say that a person convicted of a violation of the statute has no standing to attack the facial validity of the statute.

In my opinion the statute is unconstitutional.

      . We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

      .It was stipulated in the trial court that the incident on which these charges are based occurred within the territorial jurisdiction of the state.

        .In re Seven Barrels of Wine, 79 Fla. 1, 17, 83 So. 627, 632 (1920). See also, e. g., Ex Parte Wise, 141 Fla. 222, 231-32, 192 So. 872, 875-76 (1940).


text:
    Charles SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 54586.
    Supreme Court of Florida.
    June 7, 1979.

      Robert E. Jagger, Public Defender, Clear-water, and R. Pierce Kelley, Jr., Asst. Public Defender, New Port Richey, for petitioner.
    Jim Smith, Atty. Gen., and William I. Munsey, Jr., and C. Marie King, Asst. Attys. Gen., Tampa, for respondent.
   SUNDBERG, Justice.

This cause is before us on petition for writ of certiorari to review the decisions of the District Court of Appeal, Second District, reported at 353 So.2d 205 and 359 So.2d 42, which in concert allegedly conflict with Land v. State, 293 So.2d 704 (Fla.1974). We must determine whether the rule of law established in Richardson v. State, 246 So.2d 771 (Fla.1971), and its progeny is satisfied by a district court remand to the trial court to conduct a Richardson inquiry more than one year after the original trial. We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution.

On December 3, 1976, a jury found petitioner guilty of aggravated assault. During trial the defense called Mrs. Jeannette Smith as a witness. Her name had not been included on the witness list provided to the state pursuant to rule 3.220 of the Florida Rules of Criminal Procedure. Respondent pointed out the discovery violation and objected to the introduction of Mrs. Smith’s testimony. Petitioner’s counsel candidly admitted that he had inadvertently failed to include Mrs. Smith on the witness list. Without further inquiry into the circumstances surrounding the discovery violation, the court sustained respondent’s objection and excluded Mrs. Smith’s testimony.

On appeal the District Court of Appeal, Second District, held that the trial court abused its discretion in failing to conduct a Richardson inquiry and temporarily relinquished jurisdiction for that purpose. The trial court held a hearing on May 19, 1978, and found that: (1) the discovery violation, although inadvertent, was substantial since it prevented the state from interviewing the witness before trial and gathering rebuttal evidence; (2) Mrs. Smith’s testimony was only tangentially significant and its introduction would not have resulted in a different verdict; and (3) exclusion of the witness’s testimony was the only way to rectify the prejudice occasioned by the discovery violation. After reassuming jurisdiction, the district court affirmed petitioner’s conviction and sentence without opinion. Land v. State on the other hand, as amplified in Wilcox v. State, 367 So.2d 1020 (Fla.1979), held that this type of post-trial hearing was inadequate to protect the rights of a criminal defendant.

Petitioner contends that the trial court’s failure to conduct a Richardson inquiry at the time of trial constitutes reversible error which cannot be remedied by an isolated evidentiary hearing. Respondent counters with the assertion that such a post-trial hearing into the circumstances surrounding a discovery violation is sufficient to cure the court’s Richardson violation. For the following reasons, we agree with petitioner’s contention.

A Richardson inquiry is designed to ferret out procedural prejudice occasioned by a party’s discovery violation. Wilcox v. State, supra. In ascertaining whether this type of prejudice exists in a given case, a trial court must be cognizant of two separate but interrelated aspects. First, the judge must decide whether the discovery violation prevented the aggrieved party from properly preparing for trial. Second, the judge must determine the appropriate sanction to invoke for the violation. Id.

We are convinced that a post-trial hearing of the sort conducted in this case is inadequate to satisfy the objectives of a Richardson inquiry. The deficiencies in this procedure are apparent. In the illusive search for past prejudice, the trial court is charged with the task of resurrecting the events and circumstances of a trial which may have taken place long ago. The reliability of the findings of such a hearing must be suspect, for they are necessarily based on hearsay, conflicting recollections and summarized and paraphrased information. Instead of a vigorous investigation into the circumstances surrounding a discovery violation, a Richardson inquiry after remand from the appellate court is reduced to a mere guessing game.

A post-trial Richardson inquiry is not only likely to be unreliable, it fosters piecemeal litigation as well. Where hearings come after trial, the possibility exists that judges, already concerned with congested court dockets, might become less sensitive to due process considerations. Land v. State, 293 So.2d at 708; accord, Greene v. State, 351 So.2d 941 (Fla.1977). Moreover, as we recognized in Land and Wilcox, it would be difficult at best for a trial judge to determine the thorny question of prejudice in an isolated Richardson hearing without the possibility of being subconsciously affected by a jury’s prior judgment of guilt.

Equally fundamental to our decision today is the fact that the policies underlying rule 3.220 cannot be fully effectuated if the Richardson inquiry is held after trial. Subsections (j)(l) and (2) of rule 3.220 authorize the imposition of a broad spectrum of sanctions, ranging from an order to comply, to exclusion of evidence, to even a mistrial. Prejudice is often averted at trial through the simple expedient of a recess to permit the questioning or deposition of witnesses. Obviously, the rule is designed to afford a trial judge wide latitude in tailoring a sanction to the peculiar circumstances of a given case. But when the inquiry is held for the first time after remand from the appellate court, the range of options available under subsection (j) is narrowed to a determination of the propriety of the sanction imposed at trial, a sanction which, of course, was invoked without the aid of a contemporaneous Richardson inquiry. Hence, the procedure employed in the case before us would eviscerate the flexibility contemplated under subsection (j).

Finally, the question arises whether we will be “inviting error” on the part of defense counsel if we disapprove the use of post-trial Richardson hearings. This fear rests on two assumptions: (1) that defense counsel will engage in calculated perfidy by intentionally violating the discovery rules, and (2) that judges and prosecutors will be inattentive to the discovery violations and unfamiliar with the Richardson line of cases. We are loathe to ground a decision on assumptions so at odds with our concept of the calibre of the members of The Florida Bar. Furthermore, prior decisions of this Court and the district courts of appeal have granted retrials based on a trial court’s failure to conduct a Richardson inquiry after a defense discovery violation, and we are aware of no evidence to show that these decisions have engendered dishonest defense practices.

Accordingly, the writ of certiorari is granted, the decision of the District Court of Appeal, Second District, is quashed, and this cause is remanded to the district court with instructions to remand to the Circuit Court for Pasco County for proceedings not inconsistent with this opinion.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD and HATCHETT, JJ., concur.

OVERTON, J., dissents, “on the ground that I find the Court to be without jurisdiction in this case.”

ALDERMAN, J., dissents.

      . Florida Rule of Criminal Procedure 3.220 provides in pertinent part:
      (a) Prosecutor’s Obligation.
      (1) After the filing of the indictment or information, within fifteen days after written demand by the defendant, the prosecutor shall disclose to defense counsel and permit him to inspect, copy, test and photograph, the following information and material within the State’s possession or control:
      (i) The names and addresses of all persons known to the prosecutor to have information which may be relevant to the offense charged, and to any defense with respect thereto.
      (b)(3) Within seven days after receipt by defense counsel of the list of names and addresses furnished by the prosecutor pursuant to Section (a)(l)(i) of this Rule the defense counsel shall furnish to the prosecutor a written list of all witnesses whom the defense counsel expects to call as witnesses at the trial or hearing. .
      (f) Continuing Duty to Disclose. If, subsequent to compliance with the rules, a party discovers additional witnesses or material which he would have been under a duty to disclose or produce at the time of such previous compliance, he shall promptly disclose or produce such witnesses or material in the same manner as required under these rules for initial discovery.

      . Smith v. State, 353 So.2d 205 (Fla. 2d DCA 1977).

      . Smith v. State, 359 So.2d 42 (Fla. 2d DCA 1978).

      . On pages 26-27 in the transcript of the Richardson hearing, the trial judge notes the difficulty in attempting to “reconstruct accurately the events at trial.

      .In Haist v. Scarp, 366 So.2d 402 (Fla.1978), employing much of the same reasoning found in this opinion, we held that a trial judge was not required to hold a post-trial hearing for the purpose of establishing a record on appeal.

      . (j) Sanctions.
      (1) If, at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant to an applicable discovery rule, the court may order such party to comply with the discovery or inspection of materials not previously disclosed or produced, grant a continuance, grant a mistrial, prohibit the party from calling a witness not disclosed or introducing in evidence the material not disclosed, or enter such other order as it deems just under the circumstances.
      (2) Willful violation by counsel of an applicable discovery rule, or an order issued pursuant thereto, may subject counsel to appropriate sanctions by the court.

      . See, e. g., Bradford v. State, 278 So.2d 624 (Fla.1973); Streeter v. State, 323 So.2d 16 (Fla. 3d DCA 1975); Williams v. State, 264 So.2d 106 (Fla. 4th DCA 1972).


author: PER CURIAM. BOYD, Justice,

text:
    THE FLORIDA BAR, Complainant, v. Gary H. NEELY, Respondent.
    No. 55736.
    Supreme Court of Florida.
    June 7, 1979.

      J. Doyle Tumbleson, Bar Counsel, Dayto-na Beach, and David G. McGunegle, Branch Staff Counsel, Orlando, for complainant.
    Paul E. Raymond of Raymond, Wilson, Conway, Barr & Burrows, Daytona Beach, for respondent.
   PER CURIAM.

This disciplinary matter is before us on complaint of The Florida Bar against Gary H. Neely, report of the referee, and the Bar’s petition for review of the disciplinary penalty recommended by the referee. The sole question presented for our review is the propriety of the recommended penalty of private reprimand under the circumstances of this case. We find that respondent’s misconduct warrants more than a private reprimand but does not warrant the six-months suspension requested by the Bar. Consistent with disciplinary penalties imposed involving comparable misconduct, we conclude that a ninety-day suspension from the practice of law with automatic reinstatement after that time, to be followed by a supervised probation of six months, is warranted.

The referee has made the following findings of fact as to respondent’s misconduct:

As to Count I
The Respondent is charged with violating Disciplinary Rules 5 — 101(A), 7-101 (A)(1) and 7-104(A)(2) of the Code of Professional Responsibility. The Complaint filed states the facts in the matter which briefly are that the Respondent dealt in the obtaining of real estate to the detriment of his clients and for his personal gain.
The evidence, as presented by various witnesses and their testimony, was sometimes conflicting and even vindictive especially as to the complaining witnesses in their testimony against the Respondent; however, the complaining witnesses’ testimony, however vindictive, was not the issue in this matter. What was the issue under Count I was whether the Respondent took advantage of a situation involving his clients’ real estate for his personal gain. I find that in spite of a great deal of conflicting testimony, the Respondent did, in fact, take advantage of a situation involving his clients’ real estate, to their detriment and for his own personal gain thereby violating and breaching a standard of conduct not in keeping with the professional responsibility of a member of the Florida Bar. Incompetent secretaries, loose office procedures and poor bookkeeping are not excuses for the Respondent’s self-dealing for personal gain at the expense of his clients.
The facts in this matter appear to be that in April 1974, E. B. Bennett and Pearl Bennett, his wife, contacted and retained attorneys Peter Keating and Respondent to represent them in a mortgage default matter. They paid an initial fee of $100. The Bennetts, complainants in this matter, had executed an Agreement for Deed in favor of Robert T. Vliet on November 18, 1971, for Lot 35, Rio Vista, Victory Gardens, Number 3, Ormond Beach, Florida, for the consideration of $3,500. Because Mr. Vliet, could not keep up his payments, a foreclosure suit was filed on behalf of the Bennetts during the first week of May 1974. Mr. Vliet, a Michigan resident, came to Florida when he received notice of the foreclosure pending against him and went to see the Bennetts at their home. They referred him to their attorneys and Mr. Vliet went to see Mr. Neely. Within a day or so, a conference was held in Mr. Neely’s office at which the complainants, Mr. Vliet, Mr. Neely, and Mr. Keating were present, though not all at the same time. Respondent discussed the case with the Bennetts in one room and with Mr. Vliet in another. Mr. Keating, who by this time had turned over the whole case to Gary Neely, went into the room with the Bennetts at one point and explained to them their options with regard to the property. The Bennetts testified without rebuttal that at one point in the meeting Mr. Neely offered to buy the parcel of land for himself. The Ben-netts said they refused his offer, and stated their preference to continue with the foreclosure.
Approximately six weeks later, Mrs. Bennett called respondent and was informed that Mr. Vliet had given him the money necessary to pay off the mortgage, and that she and her husband must come to his office and pick it up. Although they had been expecting the mortgage foreclosure, they were now given the impression that they had to accept Mr. Vliet’s offer to pay off the balance owing on the property. On August 15, 1974, the couple executed, at Mr. Neely’s office, a warranty deed (Bar exhibit # 6) conveying the property to Robert Vliet. They accepted the money for the lot in the form of a check written on respondent’s trust account, believing that the funds had been provided by Vliet to respondent for the payoff. Over a year later the Bennetts learned the land had been deeded from Mr. Vliet to Halifax Builders, Inc., a corporation owned by respondent. The conveyance, Bar Exhibit # 7, was dated October 7, 1974, and the consideration listed as $650. Respondent’s varying explanations of the $650 were pointed out by Bar counsel at the referee hearing. At the April 2, 1976, grievance committee hearing, Neely said he received an assignment of Vliet’s interest in the lot, minus $650 which he gave back to Vliet,__ as payment for a later criminal representation which was totally unrelated to the Bennetts’ case. At the December 20, 1976, hearing, Neely stated that Vliet had agreed, in front of the Bennetts, to Neely’s purchase of the lot and had agreed, to accept $650 for his equity in it. Respondent’s also said he actually had paid the $650 to Vliet for the lot. At the referee hearing, respondent said he had advanced Vliet the $650 from personal funds held in his trust account, at the time he had paid the Bennetts the amount remaining due on the mortgage, i. e., late August, with the understanding that it would be repaid later. Whatever the true explanation of the $650 might have been, respondent did admit at the referee hearing that the money used to pay the Bennetts the amount due on the mortgage had actually come from his personal funds held in his trust account. It had not come from Robert Vliet, as the Bennetts consistently maintained they were told by respondent.
In light of all the above recounted facts and testimony, respondent did, apparently, take advantage of a situation involving his clients’ real estate— to their detriment and his personal gain. He has thereby violated and breached the standards of conduct and responsibility of members of The Florida Bar, to wit: Disciplinary Rules 5~101(A), 7-101(A)(l), and 7-104(A)(2) of the Code of Professional Responsibility.
As to Count II
The complaint filed states the facts in the matter which, briefly, are that contradictory statements were made by the Respondent at various grievance committee hearings and at the referee hearing — statements as to how the matter, which is at issue and forms the basis for Count I, actually transpired and occurred. The testimony reflects strong evidence that the Respondent lied under oath. The testimony also shows that the Respondent did not make a full disclosure of the facts and circumstances to the grievance committee when he had ample opportunity to do so. Under examination by the Bar counsel at the referee hearing, the following discrepancies in Respondent’s prior testimony were brought out.
At the Seventh Judicial Circuit Grievance Committee “C” hearing held April 2, 1976, Respondent testified that Vliet had paid him $2,500 in cash with which to pay off the Bennett mortgage, The money, he said, was then deposited into his trust account, and a trust account check written to the Bennetts. Mr. Neely said that he had given a receipt for the cash to Vliet, that he had a record of such receipt, and submitted into evidence a copy of a trust account deposit slip reflecting a deposit of $2,500 to his trust account on July 14, 1974. The deposit slip, Bar Exhibit # 2 at the referee hearing, was marked “Vliet s/t Bennett.” Bar counsel at the referee hearing pointed out that a bank code number, indicating deposit of a check, had been written beside the $2,500 figure (in the same handwriting). In fact, the deposit did reflect a check, one concerning an entirely different case of Mr. Neely’s. The words “Vliet s/t Bennett” has been added at some time after the deposit was made, as shown by Bar Exhibit #3 an earlier duplicate of the deposit slip which did not have those words written on it. Testimony at the referee hearing by Mrs. Neely, who kept her husband’s books, that she and the office secretaries were mostly responsible for the notation does not excuse Respondent’s misrepresentation to the grievance committee. Respondent also testified at the April hearing that the later conveyance of the property to his corporation by Mr. Vliet (Bar Exhibit #7) on October 7, 1974, was totally unrelated to the Bennett’s foreclosure case, and was instead payment for a later representation in a criminal matter. Respondent’s story was different at the December 20, 1976, hearing. He testified that Vliet had not given him the money to pay the Bennetts, but that the trust account check he had given them to pay off the mortgage represented his own money, held in his trust account. He said that Vliet had agreed to Respondent’s purchase of the lot, in front of the Bennetts, and had agreed to accept $650 for his equity in it. The lot had not been conveyed by Vliet to Halifax Builders, the corporation owned by Respondent, as payment for the later criminal representation. Rather, Neely then testified, he had not been paid at all for such representation.
At the referee hearing, Mr. Neely reiterated his December 20th testimony that the money given to the Bennetts had been his own. He added to the story, saying he had advanced the $650 to Mr. Vliet with the understanding it would be repaid, and had kept the Bennett/Vliet deed as security for such repayment. He stated that all the parties had agreed to this arrangement. He was not able to satisfactorily answer Bar counsel’s questions about his inconsistent earlier story concerning, and presentation to the grievance committee of, the altered deposit slip. Nor was he able to explain Bar Exhibit #9, the carbon of a receipt for $2,500 cash written by his receptionist to Robert Vliet, which he had shown to the grievance committee. The receipt, contained in a 1974 receipt book, was inexplicably dated 1976. Also he could not satisfactorily explain why the deed was not made out from the Bennetts directly to him, instead of through Mr. Vliet to Respondent’s corporation, if everyone was aware and approved of the arrangement.
After taking into consideration all the evidence presented at the hearing, I can find no explanation for Mr. Neely’s conduct except that he lied under oath, either at the grievance committee or referee hearing, or both, in an effort to hide the fact that he had taken advantage of his clients for his personal gain. By his conduct, respondent has thereby violated Disciplinary Rules 1-102(A)(4), 1-102(A) (5), and 1-102(A)(6) of the Code of Professional Responsibility, and Rule 11.02(3)(a) of the Integration Rule of the Florida Bar.

As to Count I, the referee recommends that respondent be found guilty of violating Disciplinary Rules ó-lORA), 7-101(A)(l), and 7-104(A)(2). Relative to Count II, the referee recommends that respondent be found guilty of violating Disciplinary Rules 1-102(A)(4),1-102(A)(5), and 1-102(A)(6), and The Florida Bar Integration Rule, article XI, rule 11.02(3)(a).

After review of the record and report of the referee, we hereby approve the referee’s findings and recommendations as to guilt. We disagree, however, with the recommendation that the disciplinary penalty of private reprimand be imposed. Respondent argues that there are sufficient mitigating factors apparent from the record which justify such a lenient penalty in his case. These alleged factors include the length of time that this disciplinary proceeding has been pending, the vindictiveness of the complaining witness, and the questionable credibility of the complaining witness. We find no merit to his contention that sufficient mitigating circumstances exist so as to warrant a private reprimand for misconduct which would normally be punished by suspension from the practice of law. There has been no inordinate delay in this case which could serve as a mitigating factor. The respondent was found guilty of self dealing to his client’s detriment and to his own personal gain and was found guilty of lying under oath either before the grievance committee or referee hearing, or both, in an effort to hide the fact that he had taken advantage of his clients for his own personal gain. A disciplinary penalty must be fair to society and protect it from the unworthy while not denying the public the services of a qualified lawyer by an unduly harsh discipline. It must be fair to respondent by punishing him for the misconduct while at the same time encouraging rehabilitation, and it should be severe enough to deter others from similar misconduct. The Florida Bar v. Pahules, 233 So.2d 130 (Fla.1970). With this view in mind, we find the appropriate discipline to be imposed in the present case is a ninety-day suspension followed by a six-months probation.

Accordingly, respondent is hereby suspended from the practice of law for a period of ninety days, to be followed by supervised probation for six months during which time respondent shall report on a monthly basis to staff counsel of The Florida Bar as to his case load, his accounting practices including accountings of his trust or escrow accounts and his office account, a list of his associates, if any, and a list of his office staff including the name of the person considered to be his office bookkeeper. Respondent is further directed to pay the costs of these proceedings in the amount of $1,172.17. This suspension shall be effective July 9, 1979, thereby giving respondent thirty days to close his practice and to take the necessary steps to protect his clients.

It is so ordered.

ENGLAND, C. J., and OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

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

BOYD, Justice,

concurring in part and dissenting in part.

Respondent’s clients had sold land on an agreement for deed which provided that if the purchaser should fail to meet a monthly payment obligation he would forfeit all funds paid under the contract as liquidated damages. The purchaser had paid approximately one thousand dollars and owed approximately twenty-five hundred dollars at the time of default. The sellers sought respondent’s assistance in foreclosing.

After learning that the purchaser was ready and willing to pay the balance of the purchase price owed, the respondent advised the sellers to accept the money and to execute a deed. The sellers subsequently complained that respondent’s conduct was unprofessional and that in advising them to deed the property he acted against their interests. In many instances in which buyers under contract for deed have defaulted on one or more monthly installments, but have tendered payment for the unpaid balance, courts of equity have denied forfeiture although provision for same has been made in the contract. The reason is that forfeiture under such literal enforcement of the contract would be unconscionable. The circumstances here would justify respondent’s advice to his clients that their interest would be best served by accepting the unpaid balance of the contract when it was tendered, rather than to litigate in an uncertain effort to recover the land.

Since the buyer and sellers were hostile I see nothing wrong with respondent’s meeting with them in separate conferences.

There is no clear and convincing evidence that respondent conspired with the buyer to purchase the property at the time the sellers accepted the balance of the purchase price. If he had no such intent at the time he concluded the matter for his clients, there is no prohibition against his subsequent acquisition of an interest in the land.

The contradictory statements made to investigators for The Florida Bar demonstrates irresponsible office accounting practices. For this ethical violation I would privately reprimand the respondent, place him on six months of probation as is required by the majority, and require him to bear the costs of these proceedings.

ADKINS, J., concurs.

      . DR 5-101(A) provides:
      Except with the consent of his client after full disclosure a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.

      . DR 7-101(A)(l) provides:
      (A) A lawyer shall not intentionally:
      (1) Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules, except as provided by DR 7-101(B). A lawyer does not violate this Disciplinary Rule, however by acceding to reasonable requests of opposing counsel which do not prejudice the rights of his client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.

      . DR 7-104(A)(2) provides:
      (A) During the course of his representation of a client a lawyer shall not:
      (2) Give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client.

      . DR 1-102(A)(4) provides:
      (A) A lawyer shall not:
      (4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

      . DR 1-102(A)(5) provides:
      (A) A lawyer shall not:
      (5) Engage in conduct that is prejudicial to the administration of justice.

      . DR 1-102(A)(6) provides:
      (A) A lawyer shall not:
      (6) Engage in any other conduct that adversely reflects on his fitness to practice law.

      . Fla. Bar Integr. Rule, art. XI, rule 11.02(3)(a) provides:
      (a) Standards. The standards of professional conduct to be observed by members of the Bar are not limited to the observance of rules and avoidance of prohibitive acts, and the enumeration herein of certain categories of misconduct as constituting grounds for discipline shall not be deemed to be all-inclusive nor shall the failure to specify any particular act of misconduct be construed as tolerance thereof. The commission by a lawyer of any act contrary to honesty, justice or good morals, whether the act is committed in the course of his relations as an attorney or otherwise, whether committed within or outside the State of Florida, and whether or not the act is a felony or misdemeanor, constitutes a cause for discipline.


author: PER CURIAM. SUNDBERG, Justice,

text:
    THE FLORIDA BAR. In Re Bernard BERMAN.
    No. 55774.
    Supreme Court of Florida.
    June 7, 1979.
    Joseph C. Jacobs, of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for petitioner.
    Scott K. Tozian, Asst. Staff Counsel, Miami, for respondent.
   PER CURIAM.

Petitioner, Bernard Berman, seeks reinstatement to membership in The Florida Bar pursuant to Florida Bar Integration Rule, article XI, rule 11.11. On December 1, 1970, petitioner was adjudicated guilty of the offenses of conspiracy to possess stolen securities and purchasing and possession stolen securities in the District Court of the United States for the Southern District of Florida. On January 4, 1971, The Florida Bar invoked Florida Bar Integration Rule, article XI, rule 11.07(3) by filing a copy of the judgment of guilt in this Court, thereby suspending petitioner from the practice of law.

At the hearing before the referee on his petition for reinstatement, petitioner presented an array of judges, former judges and attorneys who attested to petitioner’s successful rehabilitation, good character and fitness to practice law. The referee recommended that the petition for reinstatement be granted unconditionally. The Florida Bar did not offer rebuttal evidence at the hearing, but now argues that at the time of the filing of the petition for reinstatement petitioner had been free from federal correctional supervision for only eighteen months, an insufficient period in which to establish that he is once again worthy of a position of trust.

We believe that petitioner has proven his rehabilitation and fitness to practice law and, therefore, we approve the findings and conclusions of the referee.

Accordingly, petitioner, Bernard Berman, is hereby reinstated to the practice of law in Florida.

Costs in the amount of $44.00 are hereby taxed against petitioner.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON and HATCHETT, JJ., concur.

SUNDBERG, J., dissents with an opinion, with which ALDERMAN, J., concurs.

SUNDBERG, Justice,

dissenting.

I dissent. Although we should defer to the recommendation of the referee in matters such as these when that recommendation is based upon competent substantial evidence, nevertheless, I believe that as a matter of law performance of an individual for only eighteen months free of federal correctional supervision is an insufficient record upon which to assess rehabilitation in view of the gravity of the crimes for which respondent was convicted. To do so depreciates the seriousness of those offenses in the eyes of the public and does not enhance the confidence of the public in the bar of this state.

ALDERMAN, J., concurs.

      . The hearing before the referee followed approximately two months thereafter.


text:
    Frances WILIFRED, as Personal Representative of the Estate of Nina Louise Geddings, and Frances Wilifred, Individually, Syble Bennett Pedrosa and Hilda Anderson, Appellants, v. METROPOLITAN DADE COUNTY, a Political Subdivision of the State of Florida, and State of Florida, Department of Transportation, an agency of the State of Florida, Appellees.
    No. 78-1226.
    District Court of Appeal of Florida, Third District.
    April 3, 1979.
    Rehearing Denied July 13, 1979.
    Gaine & Gaine, Leesfield & Blackburn, Daniels & Hicks and Marc Hicks, Miami, for appellants.
    James W. Anderson, Alan E. DeSerio, Tallahassee, Knight, Peters, Pickle, Niem-oeller & Flynn, Jeanne Heyward, Miami, for appellees.
    Before SCHWARTZ, J., and CHARLES CARROLL (Ret.) and EZELL, BOYCE F., Jr. (Ret.), Associate Judges.
   PER CURIAM.

In this action by plaintiffs for damages for wrongful death and for personal injuries, alleged to have been proximately caused by defendants Dade County and the State Department of Transportation, by alleged negligence of said defendants in design, construction and maintenance of a highway and its adjacent area, the trial court entered judgment on the pleadings in favor of said defendants, and the plaintiffs appealed.

Motions of the defendants to dismiss the complaint were denied. The answer filed by the defendant Dade County admitted that the accident happened, and “that it has insurance coverage for same provided by-the Continental Casualty Company”, and averred that negligence of the driver (the plaintiff Syble Bennett Pedrosa), “was a legal cause in whole or in part for the accident” and that the persons involved were engaged in a joint venture thereby imputing the driver’s negligence to the others. By its answer the defendant Department of Transportation admitted its general duty to the public to inspect the highway system at reasonable intervals for foreseeable dangers, and for the proper design of roadways in its jurisdiction, and to safeguard the same from reasonably foreseeable dangers, but denied that it owed such duties to the plaintiffs; and averred that negligence of the plaintiff driver was the sole, proximate cause of the accident; and claimed immunity as follows: “Defendant asserts this Complaint is barred by the doctrine of sovereign immunity, notwithstanding the limited waiver of sovereign immunity enacted by the Legislature in Section 768.28, Florida Statutes.”

The questions presented and argued on this appeal were, as stated in appellants’ brief, whether the action against said defendants was precluded by sovereign immunity, and, as stated in the briefs of said defendants-appellees, whether in order to seek recovery the plaintiffs must show said defendants breached a special duty owed to them different from that owed to the public in general and whether said defendants were protected against the action by sovereign immunity.

On consideration of the record, briefs and argument, we hold the appeal has merit, and reverse the judgment on the authority of Welsh v. Metropolitan Dade County, 366 So.2d 518 (Fla.3d DCA 1979), recently decided by this court (No. 78-174, opinion filed January 23, 1979).

Judgment reversed, and cause remanded for further proceedings.

      . The order denying the defendants’ motions to dismiss included the following:
      “Ordered and Adjudged that the motions to dismiss filed by the defendants, Continental Casualty Company and Metropolitan Dade County are denied. Metropolitan Dade County as a subdivision of the State of Florida is subject to the provisions of Section 768.28 F.S. See Schmauss v. Snoll, 245 So.2d 112 (DCA 3rd 1971). The complaint alleges negligent design, construction and maintenance of a highway by the county. This is sufficient to state a cause of action, when plead with other standard negligence allegations.
      “The motion to dismiss of the State of Florida, Department of Transportation on the ground of lack of subject matter jurisdiction and failure to state a cause of action is denied for the reasons set forth above. Any reliance upon the holding in Modlin v. City of Miami Beach, 201 So.2d 70 (Fla. 1967) is misplaced in this case since Modlin involved only municipal liability.”


text:
    Thomas Michael BOYLAN, Appellant, v. STATE of Florida, Appellee.
    No. 77-2345.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1979.
    Rehearing Denied July 18, 1979.
    Eugene P. Spellman of Law Offices of Eugene P. Spellman, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The appellant claims error by the trial judge in failing to instruct the jury at the close of the case as to the purpose and use of evidence of the appellant’s participation in alleged similar crimes. The trial judge, in anticipation of counsel’s reference to such testimony in opening statements, gave an instruction to the jury before the trial began in which he properly cautioned the jury concerning the use of such evidence. The instruction given was very similar to one quoted in the case of Talley v. State, 160 Fla. 593, 36 So.2d 201 (1948). The judge declined to repeat the instruction at the end of the case and we can see no prejudicial error arising from his decision, since he did, at an appropriate time before any mention was made of such evidence, caution the jury on its use. Appellant’s counsel was certainly free thereafter, if it was felt necessary, to remind the jury of the court’s instruction.

We have also reviewed the entire record in view of appellant’s assertion that the collateral matters were allowed to become a “feature” of the trial. Green v. State, 228 So.2d 397 (Fla.2d DCA 1969). Our review of all the evidence, together with the cautionary instruction given by the court, convinces us that no prejudicial error occurred in receipt of evidence of the collateral matters.

Accordingly, the judgment of the trial court is affirmed.

ANSTEAD and LETTS, JJ., and WETH-ERINGTON, GERALD T., Associate Judge, concur.


author: GRIMES, Chief Judge.

text:
    Nancy GASKILL, Appellant, v. MAY BROTHERS, INC., Appellee.
    No. 79-334.
    District Court of Appeal of Florida, Second District.
    May 9, 1979.
    Rehearing Denied June 13, 1979.

      Dennis L. Horton of Dennis L. Horton, P. A., Clermont, for appellant.
    James M. Hess of Driscoll, Langston, Layton & Kane, P. A., Orlando, for appel-lee.
   GRIMES, Chief Judge.

This is an appeal from an order denying a motion to set aside a default judgment.

The appellee filed a two-count complaint for damages against appellant upon theories of open account and account stated. Appellee then tried to have the appellant personally served within the State of Illinois pursuant to Section 48.194, Florida Statutes (1977). The Illinois deputy’s affidavit indicates that when he went to the address specified by the appellee, the person inside the house declined to accept service. There is no indication that the appellant was that person.

Appellee next sought service of process by publication, following the procedures set forth in Chapter 49, Florida Statutes. When appellant failed to file an appearance, appellee obtained a default judgment totalling $3,051.58. Four months later, appellant, by special appearance, requested a stay of execution and moved to set aside the judgment for lack of jurisdiction over her person. Following a hearing the court denied the motion to set aside the judgment and permitted execution to proceed.

The appellant contends that the court never had the requisite jurisdiction over her person upon which to predicate the judgment because the service of process upon her was insufficient. We agree.

Appellee justified its attempt to secure personal service on appellant in Illinois upon the following portions of Section 48.-193, Florida Statutes (1977):

48.193 Acts subjecting persons to jurisdiction of courts of state.
(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
(a) Operates, conducts, engages in, or carries on a business or business venture in this state or has an office or agency in this state.
(c) Owns, uses, or possesses any real property within this state.
(d) Contracts to insure any person, property, or risk located within this state at the.time of contracting.

However, the complaint makes no reference to the cause of action having arisen out of any of the circumstances described in the statute. Explaining when this statute may be used to obtain in personam jurisdiction, our court in Griffin v. Zinn, 318 So.2d 151 (Fla. 2d DCA 1975), said:

The foregoing provision obviously relates only to those cases in which there is a direct affiliation or nexus between the basis of the controversy and the Florida property itself .

Therefore, even if the deputy had been able to effect personal service upon appellant in Illinois, there would have been no in person-am jurisdiction over her with respect to this complaint.

The appellee’s efforts to obtain in rem jurisdiction by constructive service were equally ineffective. Section 49.011, Florida Statutes (1977), describes the only types of actions in which constructive service of process may be employed, and no such action was alleged in the complaint. Chapter 49 does not encompass simple actions ex contractu. Ressler v. Sena, 307 So.2d 457 (Fla. 4th DCA 1975).

Finally, the complaint was not sufficient to establish quasi in rem jurisdiction directed against appellant’s property. Shannon v. Great Southern Equipment Company, 326 So.2d 19 (Fla. 2d DCA 1976). The complaint did not seek to seize appellant’s property in order to satisfy appellee’s claim. In fact, the first mention of appellant’s property in the entire record occurred when the appellant moved to stay execution on the judgment.

A judgment against one over whom jurisdiction has not been obtained is void. Valdosta Milling Co. v. Garretson, 54 So.2d 196 (Fla.1951). Therefore, the judgment against appellant should have been set aside. Fla.R.Civ.P. 1.540(b).

REVERSED.

HOBSON and SCHEB, JJ., concur.


author: OTT, Judge.

text:
    SENTINEL STAR COMPANY, Petitioner, v. The Honorable John W. BOOTH, Chief Circuit Court Judge, Fifth Judicial Circuit, in and for Lake County, Florida, Respondent.
    No. 79-463.
    District Court of Appeal of Florida, Second District.
    May 10, 1979.
    Rehearing Denied June 13, 1979.

      William G. Mateer and David L. Evans of Mateer, Harbert, Bechtel & Phalin, Orlando, for petitioner.
    Gordon G. Oldham, Jr., State’s Atty., for respondent.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer and James R. Wulc-hak, Assts. Public Defenders, Bartow, Tenth Judicial Circuit, for defendant Marvin Leonard Crum.
   OTT, Judge.

Sentinel Star Company, publisher of the Orlando Sentinel Star, seeks review of the trial court’s order sealing all defense discovery depositions and a statement by one of the defendants in the criminal case against Marvin Leonard Crum and Preston Crum. We have jurisdiction under Rule 9.100(d), Florida Rules of Appellate Procedure.

The Crum brothers were indicted in Lake County on January 15, 1979 for first degree murder. Rather extensive publicity in at least two area newspapers, the Sentinel Star and the Leesburg Commercial, began following discovery of the body of the alleged victim. On February 27, 1979 the assistant public defender representing Marvin Crum filed a motion to seal all defense discovery depositions filed in the case on the ground that press access to such depositions would likely result in prejudicial publicity which would jeopardize Crum’s right to a speedy and fair trial by an impartial jury. Counsel for Preston Crum later adopted this motion on behalf of his client.

On March 7, a hearing was held on this motion and on a motion for severance filed by Marvin Crum and adopted by Preston Crum. That the motion to seal deposition had been filed was known to the press and a Sentinel Star reporter was present at the hearing. However, there is no indication in the record before us that the press was aware prior to the commencement of the hearing that this motion would be heard at that time, nor did the trial judge offer any member of the press an opportunity to be heard prior to ruling on the motion.

Trial had not been set at the time of the hearing and it was not expected to be held for at least a month.

Defense counsel indicated at the hearing that “a whole flurry” of newspaper articles had been published concerning this case (nine of which were submitted to the court) although the publicity had died down since January. He stated that his purpose was “to limit additional inflammatory publicity as the trial date approaches,” and asked that the depositions be sealed until a verdict was reached relying on News-Press Publishing Co., Inc. v. State, 345 So.2d 865 (Fla. 2d DCA 1977). The prosecutor had no objection to the motion. Without further discussion, the trial court granted the motion, additionally ordering that a statement by Preston Crum upon which the motion to sever had been predicated also be sealed.

The court’s written order briefly discusses the importance of discovery and the necessity of balancing the freedom of the press against a defendant’s right to a fair and speedy trial and recites the following finding:

Being fully advised in the premises, the Court finds that there has been substantial pre-trial [sic] media publicity in this cause and that an Order sealing defense discovery depositions is necessary to protect both defendants’ right to a fair trial.

No further explanation for the sealing of the statement and depositions is given.

By virtue of its inherent power to control the conduct of its own proceedings, a court may under certain circumstances exclude the public and the press from its proceedings, State ex rel Gore Newspaper Co. v. Tyson, 313 So.2d 777 (Fla. 4th DCA 1975), (overruled on procedural grounds, English v. McCrary, 348 So.2d 293 (Fla.1977)), or seal court records. News-Press Publishing Co., Inc. v. State, supra. However, such authority must be cautiously exercised. Court records cannot be sealed absent a showing that:

(1) closure is necessary to prevent a serious and imminent threat to the administration of justice, (2) that no less restrictive alternative measures are available, and (3) that closure will in fact achieve the Court’s purpose.

Miami Herald Publishing Co. v. State, 363 So.2d 603, 606 (Fla. 4th DCA 1978).

The standard to be met before first amendment freedoms can be abridged is that the expression by the press must constitute “ ‘an immediate, not merely likely, threat to the administration of justice. The danger must not be remote or even probable, it must immediately imperil.’ ” State ex rel Miami Herald Publishing Co. v. McIntosh, 340 So.2d 904, 908 (Fla.1977).

The trial court’s brief inquiry was insufficient to demonstrate compelling reasons for ordering the sealing of all defense discovery depositions and Preston Crum’s statement. It is therefore necessary for us to remand the cause for a more thorough inquiry. Should the trial judge still find it necessary to seal all or any of the documents sealed by his first order, he should enter an order to that effect. The reasons compelling closure of these records should be specifically set forth in the order. See News-Press Publishing Co., Inc. v. State, supra.

Additionally, under the circumstances, the trial court should have given the press an opportunity to be heard. As stated by our supreme court in State ex rel Miami Herald Publishing Co. v. McIntosh, supra at 910:

Although freedom of the press belongs to all the people those who gather and distribute news have special concerns which entitle them to notice and a hearing before any trial court enjoins or limits publication of court proceedings. The circumstances may require a summary hearing but reasonable notice under prevailing conditions and a hearing must be had in each instance. The court should serve notice to news reporters present, but no order entered in good faith is invalid for lack of notice to one or more who may be unavailable to receive notice. Announcement from the bench or publication in writing in the courtroom should be adequate.

While formal written notice need not be served on all news media which could conceivably be interested, some notice should be given. The manner and extent of the notice will necessarily vary according to the circumstances of each case.

We cannot say on the basis of the record before us that the notice the press had in the instant case was inadequate. However, the press here was not given an opportunity to be heard — an opportunity to which it was entitled. On remand, before making his decision on this matter, the trial judge should hold a hearing at which the press is given an opportunity to be heard. Petitioner, having indicated its interest in the matter, should be notified thereof, and a reasonable attempt to afford notice to other members of the news media should also be made.

Remanded for further proceedings consistent with this opinion.

HOBSON, Acting C. J., and DANAHY, J., concur.

      . Rule 9.100(d)(1) provides:
      A petition to review an order excluding the press or public from access to any proceeding, any part of a proceeding, or any judicial records, if the proceedings or records are not required by law to be confidential, shall be filed in the appropriate district court of appeal as soon as practicable following rendition of the order to be reviewed, if written, or announcement of the order to be reviewed, if oral. A copy shall be furnished to the person (or chairperson of the collegial administrative agency) issuing the order, and to the parties to the proceeding.


text:
    ONE 1973 CADILLAC, I.D. No. 6L47S30443983, Fla. Tag No. 10-WW-039342, et al., Appellants, v. STATE of Florida, Appellee.
    No. 78-777.
    District Court of Appeal of Florida, Second District.
    May 11, 1979.
    Rehearing Denied June 13, 1979.
    Barry Cohen, Tampa, and Edward T. M. Garland and Mark J. Radish of Garland, Nuckolls, Radish & Cook, P. C., Atlanta, Ga., for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and C. Marie Ring, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Chief Judge.

This is an appeal of an order requiring the forfeiture of a Cadillac automobile seized in connection with an arrest for drug smuggling.

The vehicle in question was owned by the Hughes Marketing Systems, Inc. At the time it was seized, the Cadillac was in the possession of Jack Agnew, Jr., who was arrested on various charges of possession of contraband.

At the hearing on the forfeiture motion, Mr. Jack Agnew, Sr. explained that he and his wife were the sole stockholders of Hughes Marketing Systems, Inc. and that he was its president. The company is engaged in the wholesale jewelry and coin business. He testified that the Cadillac was not owned by his son, Mr. Agnew, Jr., but was bought and paid for by the corporation. Mr. Agnew, Jr. was not an officer of the corporation. He was a sales person employed by the corporation and as such used the car in the course of the business. Mr. Agnew, Sr. testified that he had no idea that the car was being used by his son for any illegal purpose, and that he had absolutely nothing to do with the crimes for which his son was arrested. The court ordered the forfeiture of the automobile.

The forfeiture proceedings were instituted under the “Florida Uniform Contraband Transportation Act.” Sections 943.41-44, Florida Statutes (1977). The provisions of the act which are pertinent to this appeal are as follows:

943.43 Forfeiture of vessel, motor vehicle, or aircraft; exceptions. — Any vessel, motor vehicle, or aircraft which has been or is being used in violation of any provision of s. 943.42 or in, upon, or by means of which, any violation of said section has taken or is taking place shall be seized and may be forfeited. No vessel, motor vehicle, or aircraft used by any person as a common carrier in the transaction of business as a common carrier nor any other vessel, motor vehicle, or aircraft shall be forfeited under the provisions of ss. 943.41-943.44, unless the owner or person legally in charge of such vessel, motor vehicle, or aircraft was at the time of the alleged illegal act a consenting party or privy thereto. No vessel, motor vehicle, or aircraft shall be forfeited under the provisions of ss. 943.-41-943.44 by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than such owner while such vessel, motor vehicle, or aircraft was unlawfully in the possession of a person who acquired possession thereof in violation of the criminal laws of this state or any political subdivision thereof, any other state, or the United States.

943.44 Forfeiture proceedings. — (1) The State Attorney within whose jurisdiction the vessel, motor vehicle, or aircraft has been seized because of its use or attempted use in violation of any provisions of law dealing with contraband as herein defined may proceed against the vessel, motor vehicle, or aircraft by rule to show cause in the circuit court within the jurisdiction in which the offense occurred and may have such vessel, motor vehicle, or aircraft forfeited to the use of, or to be sold by, the law enforcement agency making the seizure, upon producing due proof that the vessel, motor vehicle, or aircraft was being used in violation of the provisions of said law. However, the provisions of this section shall not apply to innocent parties or destroy any valid lien or retain title contract on vessels, motor vehicles, or aircraft as defined by existing registration law, and the notation of a lien upon the face of the certificate of title shall be deemed prima facie valid. The seizing agency may release said vessel, motor vehicle, or aircraft to the innocent party or lienholder upon the filing of a sworn affidavit by said innocent party or lienholder that he had no knowledge of the alleged violation causing such seizure and upon then producing a valid certificate of title. (Emphasis supplied.)

This act was substantially patterned after similar federal legislation. 49 U.S.C. §§ 781-782 (1976); Griffis v. State, 356 So.2d 297 (Fla.1978). According to interpretations of the federal law, a vehicle involved in the transportation of contraband may be forfeited regardless of the innocence of its owner so long as the person legally in charge of the vehicle was involved in the illegal activity. United States v. One 1950 Burger Yacht, 395 F.Supp. 802 (S.D.Fla.1975); United States v. One 1955 Ford Convertible, 137 F.Supp. 830 (E.D.Pa.1956). Even an innocent lienholder has no redress under the federal law. United States v. One 1967 Cadillac Coupe Eldorado, 415 F.2d 647 (9th Cir. 1969); United States v. One 1961 Cadillac, 337 F.2d 730 (6th Cir. 1964). The federal act, however, does not contain a provision relating to innocent parties, whereas Section 943.44 specifically seeks to protect the innocent parties.

The testimony of Mr. Agnew, Sr. was sufficient to meet the burden of showing that Hughes Marketing Systems, Inc. was an innocent owner of the automobile. When the state then failed to present evidence that the car had been used to transport the contraband with the express or implied knowledge of the corporation, the court should have ordered the vehicle released. See State v. Ozarek, 573 P.2d 209 (N.M.1978); State v. One (1) Certain 1969 Ford Van, 191 N.W.2d 662 (Iowa 1971); Garner v. State, 121 Ga.App. 747, 175 S.E.2d 133 (1970).

REVERSED.

HOBSON and OTT, JJ., concur.

      . In view of our disposition of this appeal, we need not pass upon the contention that all of the evidence of the crime giving rise to this proceeding was seized as a result of an unlawful search and cannot be used to support an order of forfeiture.