author: DeCARLO, Judge.

text:
    Dennis ATKINS, Jr. v. CITY OF TARRANT CITY.
    6 Div. 862.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.

      Henry B. Welch, Birmingham, for appellant.
    Robert R. Sexton of Barnett, Tingle, Noble & Sexton, Birmingham, for appellee.
   DeCARLO, Judge.

This is an appeal from a conviction for “riding in a motor vehicle while intoxicated,” under Traffic Ordinance No. 617, passed by the city of Tarrant City, Alabama, on May 2, 1977, which was fully in force on the date of the offense.

The appeal before the Jefferson County Circuit Court was determined upon an agreed stipulation of facts, and the matter is now before this court for review on that stipulation.

The stipulation reads as follows (omitting formal parts):

“1. On or about December 18, 1977, the Defendant, Dennis Atkins, was riding in an automobile over which he had no charge or control within the city limits of the City of Tarrant City, Alabama.
“2. At approximately 12:40 A.M. an officer of the City of Tarrant City stopped the automobile in which Mr. Atkins was a passenger for weaving and reckless driving. The driver of the automobile in which Mr. Atkins was a passenger was determined to be intoxicated by the police officer and was arrested and placed in the patrol car in order to be transported to the Tarrant Police Department for the purposes of running a Photo-Electric In-toximeter.
“3. The Defendant, Dennis Atkins was sitting in the passenger side of the front seat of the automobile in question and was highly intoxicated.
“4. The Defendant, Dennis Atkins was placed under arrest by Officer James Atkins for occupying or riding in an automobile while intoxicated and was transported to the City Jail for processing thereon.
“5. The driver of the automobile was determined to be intoxicated. The passenger and Defendant herein was also determined to be under the influence of intoxicating beverages.
“6. The Defendant and the City of Tar-rant City stipulate that Ordinance # 617 of the City of Tarrant City which makes occupying or riding in an automobile while intoxicated an offense against the laws of the City of Tarrant City was duly adopted by the City Council of the City of Tarrant City on the 2nd day of May, 1977 and was in force and effect the day complained of, to-wit, December 18, 1977.
“7. There is attached to this stipulation a copy of Ordinance # 617 which is made a part hereof by reference thereto marked Exhibit ‘A.’ Defendant and the City of Tarrant City stipulate that it is a true and correct copy of said Ordinance.
“8. The Defendant, Dennis Atkins was tried and convicted in the Recorders Court of Tarrant City for violation of Ordinance # 617 and was fined $25 and costs. The Defendant perfected an appeal to the Circuit Court of Jefferson County, Alabama which is the basis for this stipulation. Both parties stipulate that the complaint filed by the City of Tarrant City in the Circuit Court of Jefferson County is sufficient and states all necessary grounds to present this case to the Circuit Court for review and the Defendant files no objections to the complaint as presented.
“9. The Defendant was properly arraigned in the Circuit Court of Jefferson County on the charge of riding in an automobile while intoxicated and said Defendant contested the constitutionality of said Ordinance # 617.”

The ordinance complained of reads as follows:

“ORDINANCE NO. 617
“AN ORDINANCE MAKING IT UNLAWFUL FOR ANY PERSON WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUORS OR BEVERAGES TO OCCUPY, RIDE IN OR BE FOUND IN ANY MOTOR VEHICLE ON ANY PUBLIC STREET OR HIGHWAY OR OTHER PUBLIC PLACE.
“Be IT ORDAINED by the City Council of the City of Tarrant, Alabama as follows:
“Section 1. It shall be unlawful for any person while under the influence of intoxicating liquors or beverages to occupy, ride in or be found in any motor vehicle on any public street or highway or other public place within the corporate limits or the police jurisdiction of the City of Tar-rant City, Alabama.
“Section 2. Any person violating the provisions of this ordinance shall be guilty of a misdemeanor and upon conviction shall be fined no less than One Dollar ($1.00) nor more than Three-Hundred Dollars ($300.00).
“Section 3. This Ordinance shall become effective from date of publication. “ADOPTED this the 2nd day of May, 1977.”

I

The appellant, Dennis Atkins, Jr., contends that City Ordinance # 617 of Tarrant City, Alabama, is unconstitutional because it “goes beyond, enlarges and extends” the scope of the State statute regulating the consumption of alcoholic beverages, specifically, the “drunk driving” statute, found in § 32-5-170, Code of Alabama 1975, and the public intoxication statute, § 13-6-15, Code of Alabama 1975.

The question presented here is whether the ordinance under review is inconsistent with the general laws of the State of Alabama. If so, the ordinance is void. § 11-45-1, Code of Alabama 1975, Turner v. Town of Lineville, 2 Ala.App. 454, 56 So. 603.

The Alabama Constitution of 1901, Article 4, § 89, states:

“The legislature shall not have power to authorize any municipal corporation to pass any laws inconsistent with the general laws of this state.”

In Winter v. Cain, 279 Ala. 481, 187 So.2d 237, the Supreme Court of Alabama, stated that all ordinances enacted under the legislative power delegated to the cities, should be consistent with the State laws. See also Phenix City v. Putnam, 268 Ala. 661, 109 So.2d 836; Ott v. Moody, 283 Ala. 288, 216 So.2d 177; Ligon v. City of Gadsden, 21 Ala.App. 312, 107 So. 733.

Municipalities have been given legislative authority to pass ordinances pursuant to what is commonly known as their police powers. Ott v. Moody, supra; Smith v. Town of Notasulga, 257 Ala. 382, 59 So.2d 674.

This grant is found in § 11-45-1, Code of Alabama 1975, which reads as follows:

“Municipal corporations may from time to time adopt ordinances and resolutions not inconsistent with the laws of the state to carry into effect or discharge the powers and duties conferred by the applicable provisions of this title and any other applicable provisions of law and to provide for the safety, preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of the inhabitants of the municipality, and may enforce obedience to such ordinances. (Code 1907, § 1251; Code 1923, § 1992; Code 1940, T. 37, § 455; Acts 1971, No. 2279, p. 3670.)”

Under this provision, a municipality cannot enact an ordinance pursuant to its police powers which is inconsistent with the general laws of the State.

We note that municipal ordinances are presumed to be constitutional and that they are not to be struck down unless invalid on their face or unless the challenging party clearly establishes their invalidity. Atlantic Oil Co. v. Town of Steele, 283 Ala. 56, 214 So.2d 331; Cudd v. City of Homewood, 284 Ala. 268, 224 So.2d 625; Sanford Service Co. v. City of Andalusia, 36 Ala. App. 74, 55 So.2d 854; Jolly v. City of Birmingham, 55 Ala.App. 603, 318 So.2d 300.

Appellee City of Tarrant City, acknowledges that a municipal corporation may not enact ordinances which are inconsistent with the general laws of the State. However, it asserts that the State has not held itself out to have exclusive jurisdiction “in the matter of regulating the rules of the road or the use of intoxicating beverages as such. . . . ”

Further, the appellee maintains that the municipal ordinance in question is in no way inconsistent with State statutes governing intoxicating liquors and related offenses. The municipality insists that the ordinance is a valid exercise of its police power as it pertains to the protection of “public health, morals and safety of the community.”

Whether an ordinance is inconsistent with the general law of the State is to be determined by whether the local law prohibits anything which the State law permits. Ligón v. City of Gadsden, supra. See also Kim v. Town of Orangetown, 66 Misc.2d 364, 321 N.Y.2d 724.

Under the facts in the present case, Dennis Atkins, Jr. could not have been arrested, pursuant to State or local laws, for public drunkenness. The facts clearly show that appellant was not the operator of the motor vehicle and was not outside the automobile at any time. Under Brown v. State, 38 Ala.App. 312, 82 So.2d 806, appellant could not have been arrested for public intoxication, so long as he remained inside the automobile.

Atkins did not violate any State law. There is no State “drunk passenger” statute comparable to city ordinance # 617, of Tar-rant City, Alabama. § 13-6 — 15, Code of Alabama 1975, specifically exempts a passenger in an automobile from its criminal sanctions. That section provides, in pertinent part:

“It shall be unlawful for any person who is intoxicated by or under the influence of liquors or narcotic drugs to appear or travel upon or be along the public roads and highways of the state. Any person violating this section shall be guilty of a misdemeanor, provided this section shall not apply to persons traveling along a public highway as passengers in any public or private conveyance.” [emphasis added.]

It seems clear that the ordinance in question prohibits an act which is permitted by the State law of Alabama, and, thus, that the ordinance is in conflict with the State law. Ligon v. City of Gadsden, supra; Kim v. Town of Orangetown, supra. The ordinance tends to nullify the State law and therefore, in our judgment, is void.

We recognize that a municipal ordinance which enlarges upon the provisions of a State statute by requiring more restrictions than the State law is not unconstitutional as long as the State statute is not exclusive. State ex rel. Woodruff v. Centanne, 265 Ala. 35, 89 So.2d 570. However, the ordinance here in question does not enlarge upon any existing State statutes; no such statute exists on the State level. This court, in Tarrant v. City of Birmingham, 39 Ala.App. 55, 93 So.2d 925, recognized the right of a municipality to regulate liquor traffic under its police powers. However, in Downey v. City of Bay Minette, 39 Ala.App. 619, 106 So.2d 32, this court held that a municipal ordinance making it unlawful to possess liquor in the city limits while in a taxicab was inconsistent with the State policy of allowing legal liquor possession in a “wet” county. This court noted that such possession would be legal in any “wet” county in the State, and that only in Bay Minette would it be criminal in nature. See also City of Mobile v. Madison, 40 Ala.App. 713, 122 So.2d 540.

This court in Ligon v. City of Gadsden, supra, commented that, whatever the State permits, the local authority cannot disallow without being inconsistent and in conflict with the State law. In that case, Judge Rice stated:

“The municipality is the creature of the state. In other words, the city lives by and through and for the purposes of the state, and we think it not only inconsistent, but is also unreasonable, for the creature to have and exercise more power and authority than the creator. By its laws, the state says to this appellant, in effect: You are at liberty to do all and every the acts complained of, and in so doing you violate no law of this sovereignty. For the municipality to say no, you shall do no such thing, is, in our opinion, a conflict, an inconsistency, and an unreasonable status, even under the flexible rule of police powers. The police powers have never been construed to take precedence over the Constitution of the state.”

II

The appellee insists that the ordinance in question is a valid exercise of its police powers. The city argues that the ordinance is justified because it protects the drunk passenger from harming himself or the general public. The appellee asserts that the true benefactor of the municipal ordinance is the drunk passenger, because he is protected from harm, rather than left on the highway to “fend for himself.”

Despite the presumption of constitutionality in favor of ordinances, a municipality’s authority is not absolute and is not to be exercised capriciously. City of Mobile v. Madison, supra; Hurvich v. City of Birmingham, 35 Ala.App. 341, 46 So.2d 577. Furthermore, a municipality cannot use its police power as a means to raise revenue. City of Decatur v. Robinson, 251 Ala. 99, 36 So.2d 673.

One who is in Tarrant City, Alabama, and becomes intoxicated is in somewhat of a quandary. He is faced with the decision whether to walk home and risk being arrested for public drunkenness or to drive home and risk arrest for driving while intoxicated. Finally, he may have a friend drive him home and be arrested as a drunk passenger. The result is that a person finding himself in a drunken condition in Tar-rant City would be virtually trapped in the exact spot at which he became inebriated. Any attempts by such a person to reach his home would constitute a criminal act, and the location at which he became inebriated would determine whether he could be arrested for drunkenness.

This exercise of its police powers by the city of Tarrant City, in enacting Ordinance # 617, exceeds those powers granted it by the legislature to promote the general health and well-being of the community. There are ways to aid the intoxicated passenger other than by arresting him.

In our judgment, Tarrant City Ordinance # 617 is invalid as an improper use of a municipality’s police power.

REVERSED AND RENDERED.

All the Judges concur.


source: Caselaw Access Project

author: HATCHETT, Justice. ENGLAND, Chief Justice,

license: Public Domain

text:
    CITY OF PENSACOLA, a Municipal Corporation, Petitioner, v. Kiplan Carlyle OWENS, Respondent.
    No. 53795.
    Supreme Court of Florida.
    Feb. 1, 1979.
    Rehearing Denied April 27, 1979.
    H. Edward Moore, Jr. of Sherrill & Moore, Pensacola, for petitioner.
    William R. Davenport, Pensacola, for respondent.
   HATCHETT, Justice.

We have for resolution a certified question: In an action for malicious prosecution, is it the function of the court or of the jury to determine the existence of probable cause? Jurisdiction is pursuant to article Y, section 3(b)(3), Florida Constitution. Where the facts are undisputed, as is the case here, the court must determine probable cause.

The facts of the case and its history are set out in the First District Court of Appeal’s opinion as follows:

Appellant constructed two large cardboard signs saying “Speed Trap Ahead” and placed them on both sides of a Pensacola intersection at which he had observed police officers using radar equipment. Moments later, he was arrested on a charge of “obstructing a police officer in the performance of his duties,” a violation of Section 843.02, Florida Statutes. After an apparently heated exchange with one of the officers, appellant was put in the back of a police cruiser and taken to the city jail, fingerprinted, and booked. He was later released on bail.
At his arraignment, appellant pleaded not guilty and made a motion to dismiss, to which the state did not file a traverse. The county judge dismissed the charges, finding that appellant’s acts did not constitute obstruction as a matter of law. Appellant then sued the City of Pensacola for false arrest and imprisonment and malicious prosecution. After appellant presented his case at that trial the circuit judge directed a verdict in favor of the city.
Appellant now contends on appeal that the trial court erred in taking the case from the jury. Appellee urges that there were no disputed issues of fact and the sole matter for the trial court’s determination was whether the police officers had probable cause to believe that an offense had been committed. We agree with appellant and reverse.

Owens v. City of Pensacola, 355 So.2d 1266, 1267 (Fla. 1st DCA 1978).

To resolve the issue in this case, we must examine Oosterhoudt v. Montgomery Ward & Co., 316 So.2d 582 (Fla. 1st DCA 1975), cert. denied, 333 So.2d 463 (Fla.1976). In Oosterhoudt, a woman entered a department store intending to buy some writing materials. After purchasing an item, she picked up six felt writing pens and placed them between the bag containing the purchased item and her chest. After browsing in the store for a short time, she left the store. After she had gone about 15 feet, she started to return to the store. As she turned to go back into the store, she was approached by a security person who asked to examine the contents of the bag. As the shopper opened the bag, the pens that had been held between her body and the bag fell to the ground. The shopper offered to pay for the pens but payment was refused. She was later interviewed by another security officer who also refused her offer to pay for the pens. Police authorities were summoned, and the shopper was arrested and charged with petit larceny. The petit larceny charge was subsequently dismissed for lack of probable cause.

The shopper then filed a two-count complaint. The first count alleged false imprisonment, and the second count alleged malicious prosecution. The trial court found that the facts were not in dispute and entered final summary judgment in favor of the store.

The First District Court affirmed the trial court’s entry of summary judgment on the false imprisonment count, relying on section 901.34, Florida Statutes (1975). On the malicious prosecution count, it held that probable cause was a question for the jury and stated:

However, as to the second count of the complaint alleging malicious prosecution, quite another problem is presented. Ap-pellee cites, and urges our adoption of, an article appearing in 87 A.L.R.2d at page 183 in which article we are told that it is the function of the court and not the trier of fact to determine the question of probable cause in malicious prosecution actions, candidly conceding that the basis for such contention is the apprehension that if the question of probable cause be
left to a jury that body of citizens may not be trusted to sufficiently safeguard the rights of defendants. The cited article recites that such is the established law “at least by the overwhelming weight of authority,” recognizing that a minority of jurisdictions hold contra. Neither party has cited any Florida case on the point and independent research has failed to reveal any. However, we are of the view that the general philosophy of the jurisprudence of the State of Florida is more in line with trust and confidence in the jury system which, according to the article in A.L.R.2d above mentioned, would place Florida in the minority.

Oosterhoudt v. Montgomery Ward & Co., 316 So.2d at 584.

The majority view on this question is stated at pages 188-89 of 87 A.L.R.2d:

The broad general principle that in the determination of the question of probable cause in malicious prosecution actions, the function of the jury is more limited than that ordinarily afforded it in civil actions in general, and that the function of the court is correspondingly enhanced, is at least theoretically recognized by the great majority of courts, as indicated by their announcement by one or more of the following rules: (1) that, on undisputed or admitted facts, the question of probable cause is one entirely for the court to determine, or, as otherwise stated, that what facts constitute probable cause is a question of law for the court; (2) that whether a particular fact exists is a question for the jury, or, as it is stated, that disputed facts are for the jury’s determination; and (3) that the existence of probable cause is a mixed question of law and fact, a principle which has been interpreted to indicate no more than a combination of (1) and (2).

We first adopted what we now hold to be the law of Florida in Glass v. Parrish, 51 So.2d 717 (Fla.1951), where we stated at page 722:

We approve the following quotation from the appellate court of Indiana . . .:
“ ‘What facts and circumstances amount to probable cause is a pure question of law. Whether they exist or not in any particular case is a pure question of fact. The former is exclusively for the court; the latter for the jury. This subject must necessarily be submitted to the jury when the facts are in controversy; the court instructing them what the law is.’ . .” [Citations omitted; emphasis in original.]

This rule has prevailed in all cases except Oosterhoudt. Food Fair Stores, Inc. v. Kin-caid, 335 So.2d 560 (Fla. 2d DCA 1976); Stone v. Hamic, 189 So.2d 908 (Fla. 2d DCA 1966). To the extent that it holds otherwise, we disapprove the decision in Ooster-houdt v. Montgomery Ward & Co.

Accordingly, the decision of the First District Court of Appeal is quashed and the case remanded to that court with directions that the trial court be affirmed.

It is so ordered.

ADKINS, BOYD, OVERTON, SUND-BERG and ALDERMAN, JJ., concur.

ENGLAND, C. J., concurs with an opinion.

ENGLAND, Chief Justice,

concurring.

Under Florida law, the plaintiff in a malicious prosecution lawsuit must establish a lack of probable cause for the criminal prosecution as an element of his proof, and if he does then two things happen. First, the plaintiff is entitled to have the jury, not the judge, .determine his claim for damages. Second, the burden shifts to the defendant to justify the institution of a judicial proceeding if the defendant chooses to put on evidence.

The question apparently certified to us is whether a trial judge may direct a verdict for the defendant at the end of plaintiff’scase in this class of case on the ground that the plaintiff has failed to show an absence of the defendant’s “probable cause” for filing suit. This question is simple enough, and I agree with my colleagues that it requires an affirmative answer. A trial judge can always direct a verdict against a plaintiff who fails to prove a material element of his case.

I also agree with my colleagues that the answer to this question resolves this lawsuit in the city’s favor, for Owens failed to prove in his case that the City of Pensacola lacked probable cause to charge Owens with an obstruction of justice. The legal issue was not, I submit, whether the police officers had probable cause to arrest Owens. That would be relevant to a false arrest or a false imprisonment claim. The issue in a malicious prosecution suit is whether the suit was brought without a reasonable prospect of success — probable cause to charge the particular crime. Owens has not shown that the city’s criminal charge lacked a probable foundation. Surely the fact that it was dismissed does not alone establish its improbability.

Having failed to prove a material element of his claim, Owens was subject to a directed verdict against him, and the trial judge properly aborted his lawsuit at the close of his presentation of evidence.

      . Neither false arrest nor false imprisonment is certified to us, as we view the record.

      . Reliance on the statute was not fully explained until Owens v. City of Pensacola, 355 So.2d 1266.

      . I accept the majority’s construction of the record to the effect that false arrest and imprisonment are not the issues certified.

      . See Glass v. Parrish, 51 So.2d 717, 718 (Fla. 1951).


author: ADKINS, Justice.

text:
    Clifford SCOTT, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 50946.
    Supreme Court of Florida.
    March 22, 1979.

      Michael M. Corin, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   ADKINS, Justice.

This is an appeal from a judgment adjudicating appellant (defendant in trial court) guilty of the crime of attempted murder in the second degree. The defendant contended that the mandatory minimum sentence requirements of Florida Statutes, Section 775.087(2) were unconstitutional. The trial court ruled that the statute was constitutional. The appeal was lodged in the First District Court of Appeal and transferred to this court. We have jurisdiction. Florida Constitution, Article V, Section 3(b)(1).

The only question presented was whether this statute could constitutionally require that a person who is convicted of attempt to commit murder in the second degree and who had in his possession a firearm must be sentenced to a minimum term of imprisonment for three years and must serve such minimum sentence before being eligible for parole.

The defendant concedes that Florida courts have consistently rejected constitutional challenges to statutes which require mandatory minimum sentences to be imposed and that as a general proposition, if the sentence given is one that has been established by the legislature and is not on its face cruel and unusual, the imposition thereof will be sustained as against attacks based on due process, equal protection, separation of powers and legislative usurpation arguments. O’Donnell v. State, 326 So.2d 4 (Fla.1975), Owens v. State, 316 So.2d 537 (Fla.1975), Owens v. State, 300 So.2d 70 (Fla. 1st DCA 1974), appeal dismissed, 305 So.2d 203 (Fla.1974), and Dorminey v. State, 314 So.2d 134 (Fla.1975).

He contends the statute does not meet constitutional muster because:

1) It does not place defendant on notice that a conviction for this crime would subject him to the penalty provisions of the statute under attack;

2) The statute is discriminatory and misleading because it excludes from the mandatory minimum sentencing those individual's who possess and use deadly weapons other than firearms or destructive devices while in the commission of criminal acts;

3) The statute unconstitutionally binds trial judges to a sentencing process which wipes out any chance for a reasoned judgment;

4) The statute unconstitutionally usurps the functions of the Parole and Probation Commission.

We reject the contentions of the defendant and hold that the statute is constitutional. See Dorminey v. State, 314 So.2d 134 (Fla.1975), Owens v. State, 316 So.2d 537 (Fla.1975), Sowell v. State, 342 So.2d 969 (Fla.1977).

•The conviction of the defendant is affirmed. It is so ordered.

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


author: PER CURIAM.

text:
    Virginia Q. BEVERLY, as Judge of the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, Petitioner, v. STATE of Florida ex rel. Christine MITCHELL, Respondent.
    No. 53115.
    Supreme Court of Florida.
    March 22, 1979.
    Jim Smith, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., Tallahassee, for petitioner.
    Robert W. Elrod, Jacksonville, for respondent.
   PER CURIAM.

We issued a writ of certiorari in this ease based upon an alleged conflict between the decision in this case, reported at 333 So.2d 89 (Fla. 1st DCA 1976), and State v. Sampson, 317 So.2d 782 (Fla. 3d DCA 1975).

We are of the judgment that the conflict was resolved by State v. Williams, 350 So.2d 81 (Fla.1977).

Accordingly, the writ is discharged.

ENGLAND, C. J., and BOYD, SUND-BERG and HATCHETT, JJ., concur.

ADKINS, OVERTON and ALDERMAN, JJ., dissent.


author: PER CURIAM. ENGLAND, Chief Justice, ADKINS, Justice,

text:
    FLORIDA COMMISSION ON ETHICS, Appellant, v. Kenneth A. PLANTE, Dempsey Barron, Philip D. Lewis, Jack D. Gordon, and Jon Thomas, Appellees.
    No. 53899.
    Supreme Court of Florida.
    March 22, 1979.

      Jim Smith, Atty. Gen., and William C. Sherrill, Jr., Chief Trial Counsel, Tallahassee, for appellant.
    Tobias Simon, Miami, Charles L. Carlton, Lakeland, and Richard C. McFarlain, Tallahassee, for appellees.
    Bruce C. Starling, Gen. Counsel, Nancy G. Linnan, Asst. Gen. Counsel, Tallahassee, and Donald M. Middlebrooks, Miami, for Governor Reubin O’D. Askew and The Sunshine Amendment, Inc., amici curiae.
   PER CURIAM.

We here review an order of the district court of appeal construing a provision of the Florida Constitution. Jurisdiction vests under article V, section 3(b)(1). At issue is the meaning of the words “public report” in article II, section 8(f). We hold that these words mean a report which includes a conclusion and that such an interpretation does not violate the concept of separation of powers between branches of government. The district court opinion is quashed.

Article II, section 8, known as the Sunshine Amendment, establishes financial reporting requirements for all elected constitutional officers, public officers, public employees and candidates. Subsection (f) authorizes an independent commission to “conduct investigations and make public reports on all complaints concerning breach of public trust” by persons covered by the section, except those “within the jurisdiction of the judicial qualifications commission.” Subsection (h)(3) names the Florida Commission on Ethics as that independent commission provided for in subsection (f). The commission is also charged with duties under Chapter 112, Part III, Florida Statutes.

A complaint was filed against five state senators alleging that they had breached the public trust by failing to comply with the public financial disclosure requirements of article II, section 8(a) and (h). The facts are not in dispute: The senators did not file the required reporting forms. After a hearing on the complaint, the commission found “probable cause” to believe that the senators had breached the public trust, and this finding was transmitted to the President of the Senate.

The senators appealed the commission’s finding to the First District Court of Appeal, and in an order dated December 23, 1977, that court held that the commission was without authority to make a probable cause finding. The court struck the probable cause finding and made permanent an order previously entered against the commission staying any transfer of the findings to the senate. No rehearing was requested, and no appeal was taken from the ruling.

After a subsequent meeting, the commission issued a public report dated February 15, 1978, finding that the senators, by failing to file “full and public disclosure,” had breached the public trust. The senators petitioned the First District Court of Appeal to strike the commission’s latest report and to issue a contempt show cause order. The court struck the commission’s finding of a breach of public trust, but did not make a contempt finding against the members of the commission because nothing before the court . . indicate[d] that either Commissioner did not act in good faith.” The commission appealed to this court.

We are faced with three issues: (1) whether the Commission on Ethics is bound by the opinion and order of the district court dated December 23,1977; (2) whether the Commission on Ethics, pursuant to article II, section 8(f), may issue a report finding that public officials and other persons covered by the Sunshine Amendment have breached the public trust; and (3) if such a report may be issued, whether the commission’s action infringes on article III, section 4(d), Florida Constitution.

I

We must first determine what the First District Court of Appeal held in its opinion of December 23,1977 (Plante v. The Florida Commission on Ethics, 354 So.2d 87 (Fla. 1st DCA 1977)). We conclude that the opinion holds that the Commission on Ethics may not transmit a finding of probable cause to the President of the Senate in an attempt to commence a disciplinary action against a senator. Several portions of the opinion demand this conclusion. (A) In the statement of facts, the court states:

. the Florida Commission on Ethics . . purported to find probable cause to establish breach of public trust . and sought to refer such finding to the President of the Senate for official action. [Emphasis added.]

354 So.2d at 88.

Clearly, the district court considered the commission’s referral of its report to the President of the Senate to be a demand for official action. (B) This is further shown by the court’s description of the issue before it:

Petitioners and respondent agree that no provision of Chapter 112, Part III, Florida Statutes is applicable to the issue before this court — namely, the authority of the Commission to do other than conduct an investigation and make a public report. [Emphasis added.]

354 So.2d at 89.

Inherent in the framing of this issue is a recognition that the commission may conduct an investigation and make a public report. The district court, therefore, must have believed the commission was seeking to do more than those two clearly authorized acts. (C) The language of the court in comparing the authority of the executive or judicial branches of government with the authority granted the Florida Commission on Ethics adds further support:

Just as the executive or judicial branch has no authority to determine the qualifications of a Senator to be seated, the Florida Commission on Ethics has no power to make this determination, or to enter a finding of probable cause. [Emphasis added.]

354 So.2d at 89.

The words “to make this determination” obviously refer to “the qualifications of a Senator to be seated.” (D) The court’s statement of the commission’s authority is also indicative of the court’s belief that something more than the filing of a report was intended:

[T]he Florida Commission on Ethics has the authority to conduct an investigation of complaints alleging a violation of Article II, Section 8, Florida Constitution and to make public its report by distribution to all news media or by filing the same with the Secretary of State as it may choose. [Emphasis added.]

354 So.2d 89.

Again, the court makes clear that at the conclusion of the investigation a report may be distributed as the commission chooses. (E) Finally, in the remedy section of the opinion, the court states:

That portion of the order of the Florida Commission on Ethics purporting to find probable cause of a violation by the petitioners . . . and purporting to direct the filing of such finding as an official document with the President of the Senate transcends the constitutional grant of power to the Commission . . . [Emphasis added.]

354 So.2d at 89.

From a full and careful reading of the opinion, we find that it holds that the Commission on Ethics may not, after conducting an investigation, transmit a copy of its report to the President of the Senate in an effort to trigger disciplinary action against a senator. We agree.

The commission took no appeal from this ruling; it is, therefore, binding.

II

We now turn our attention to the subsequent action of the commission shown by its report of February 15, 1978. That report provided, in pertinent part, as follows:

2. Pursuant to said complaints this Commission conducted an investigation and hereby enters its public report, finding as follows:
a. A sworn complaint was duly filed with this Commission pursuant to Section 8(f) of Article II of the Constitution of the State of Florida.
b. The investigation pursuant to said complaint and said constitutional provision reveals that the above-named parties did not file full and public disclosure of their financial interests as required by Article II, Section 8(a) and
(h)(1) of the Constitution of the State of Florida.
c. By failing to file such disclosure, the above-named parties have breached the public trust.
3. This finding constitutes a public report of said investigation and shall be delivered to the news media of this state and shall be made available to persons requesting it.
4. Persons or agencies affected hereby may, pursuant to the other constitutional mandates and statutes of this state that may also affect them, govern themselves accordingly.

As to the provisions of paragraph 2(a), 2(b), 3, and 4, the commission admittedly acted properly. The First District Court’s December 23, 1977, opinion directly passes on the commission’s duty to receive complaints, conduct investigations, and file public reports. Our question, then, is the propriety of paragraph 2(c) of the commission report which finds that the conduct engaged in by the senators constituted a breach of the public trust. This was a new finding under the constitutional authority rather than the statutory authority, based on the same investigation.

We agree with the parties that the opinion of April 6, 1978, (Plante v. The Florida Commission on Ethics, 356 So.2d 1353 (Fla. 1st DCA 1978)), is unclear in several respects. In reviewing the December 23, 1977, case (354 So.2d 87), the court stated the holding to be:

. it was considered, held and determined that, as to a member of the Legislature of Florida, the respondent was without authority to enter any judgment as to “probable cause” that failure on the part of such member to file financial disclosure statements constituted a breach of public trust.

356 So.2d at 1354.

This recitation of the holding of the previous case is followed by the following language:

It is blatantly apparent that a body, such as the Commission, found without even the authority to find “probable cause” that an offense had been committed may not subsequently find such person “guilty” of a breach of the public trust by reason of failure to make such filing. [Emphasis added.]

356 So.2d at 1354.

The First District Court then goes on to find that the commission’s February 15,1978, report is “in plain conflict with the order and opinion of this Court.” 356 So.2d at 1354. We disagree. In our view, the second opinion holds that the Commission on Ethics may not publish any conclusion in its public report. Is this ruling different from the ruling of December 23, 1977? If it is the same ruling, the commission is collaterally estopped from relitigating the issue or the ruling is res adjudicata. Mobil Oil Corp. v. Shevin, 354 So.2d 372 (Fla.1977); Seaboard Coast Line Railroad Co. v. Cox, 338 So.2d 190 (Fla.1976).

The December 23, 1977, ruling held that the commission could not make a probable cause finding and thereby commence disciplinary action against a senator. The April 6, 1978, opinion held that the commission could not publish any conclusion following an investigation. Since the holdings are different, the commission may appeal, and the decision is properly before this court.

Could the people of Florida have adopted the pertinent provisions of the Sunshine Amendment under review here with the thought that when a complaint was filed an investigation would be conducted without any conclusion being reached? The Commission is charged with the duty to “conduct investigations and make public reports on all complaints concerning breach of public trust.” (Emphasis added.) As we understand appellees’ position, the commission may make a full investigation and summarize the evidence, but it may not reach a conclusion as to whether the conduct proved constitutes a breach of public trust. There is no definition in the constitution of what constitutes a “public report.” It is this court’s duty to construe provisions of the constitution. Alsdorf v. Broward County, 333 So.2d 457 (Fla.1976). A reading of the language, with the Sunshine Amendment’s purpose in mind, and common sense, dictate that the commission reach some conclusion at the end of an investigation. Inherent in reaching such a conclusion is the power of the commission to decide what is a breach of the public trust. The commission is the only agency that has the authority initially to construe the constitution on this point. Myers v. Hawkins, 362 So.2d 926 (Fla.1978).

Is the conclusion reached by the Commission on Ethics pursuant to article II, section 8(f), binding on the legislature? It is not. It is a public report for public discussion, and it does not commence official action for discipline.

III

We must next determine whether the filing of the public report with a conclusion as to breach of trust infringes upon article III, section 4(d), Florida Constitution. That section provides:

(d) Each house may punish a member for contempt or disorderly conduct and, by a two-thirds vote of its membership, may expel a member.

Since a finding of the Commission on Ethics is merely a public report that does not penalize, does not affect qualifications, does not seek to punish a member of the legislature, and does not result in the unseating of a member, it does not infringe on article III, section 4(d), Florida Constitution.

IV

Finally, we must determine whether the financial disclosure provisions of article II, section 8, Florida Constitution, are applicable to legislators whose terms in office commenced prior to its effective date. In Myers v. Hawkins, 362 So.2d 926 (Fla.1978), we held the provisions of article II, section 8(e), which bar state legislators from practicing law before state agencies other than judicial tribunals, inapplicable to persons who held office on the effective date of the amendment. Emphasizing that there was “absolutely no employment limitation when the term of office was sought” and that the “new and onerous” constitutional requirements substantially abrogated Myers’ status as a legislator and member of The Florida Bar, the court refused to apply those provisions to incumbent legislators. As stated by the court:

To apply newly-created professional limitations on a part-time Florida legislator in the midst of his term of office obviously defeats expectations honestly arrived at when the office was initially sought.

362 So.2d at 935.

We are urged to hold that the disclosural mandates of article II, sections 8(a) and (h) must likewise be deemed inapplicable to legislators who assumed office prior to the effective date of the constitutional amendment. We decline to do so.

A.

In the first place, the financial reporting requirements imposed upon state officers under article II, section 8, require no curtailment of non-legislative employment opportunities as do the professional limitations considered in Myers. A legislator is free to conduct his non-legislative affairs in the same manner as he had prior to the adoption of the amendment. Although an incumbent may alter his non-legislative activity in response to these disclosural duties, the constitution does not mandate the change. We perceive the situation here to be more like that in Holley v. Adams, 238 So.2d 401 (Fla.1970), than like that facing the court in Myers. In Holley, we applied the newly enacted “resign to run” statute to incumbent office holders, recognizing that it was not a direct limitation upon their right to seek another office, but that it left with the incumbent “the choice under the statute to retain [his office] unmolested or give it up and seek another.” Likewise, the disclosural obligations imposed upon state officers under article II, section 8, do not proscribe any financial activity, but leave with the officeholder the choice to continue or curtail his current financial practices.

B.

Furthermore, this constitutional provision does not impose “new and onerous requirements” on incumbents who wish to continue in office. State legislators have been required to publicly disclose personal financial information since the enactment of section 112.3145, Florida Statutes, in 1974. This statute mandates disclosure of a wide range of financial interests including all sources of personal income in excess of five percent of gross personal income, the location and description of nonresident real property in Florida in which the officer owns more than a five percent interest, and a list in order of descending value of all persons and organizations from whom all gifts were received exceeding $100. Under article II, section 8(a), Florida Constitution, legislators must file a sworn statement showing net worth and identifying by value each asset and liability in excess of $1,000 together with either a copy of the officers’ most recent federal income tax return or a sworn statement identifying each separate source and amount of income which exceeds $1,000. By establishing the $1,000 demarcation and requiring the identification by value of each separate asset, the constitution fashions a broader disclosural mandate than does the statute. In light of the pre-existing statute, however, we do not consider the expanded disclosural requirements to be so new and onerous as to defeat an incumbent’s honest expectations regarding the requirements of office conceived upon election. In Myers, we refused to apply the previously nonexistent employment limitations to legislators who had taken office prior to the effective date of the new restrictions. We now conclude that the constitutional expansion of preexisting disclo-sural requirements during a legislator’s tenure in office does not insulate that legislator from compliance with the added constitutional directives.

We therefore hold that the disclosural provisions of article II, section 8, may properly be applied to legislators who assumed their present terms in office prior to the effective date of the constitutional amendment. We further hold that the Commission on Ethics, under authority granted by article II, section 8(f), may receive complaints, conduct investigations, issue public reports, and reach conclusions based upon the proof presented on whether persons covered by the act have breached the public trust. Finally, we hold that any conclusion reached by the Commission on Ethics is not binding upon any other official body or officer.

Accordingly, the opinion of the First District Court of Appeal reported at 356 So.2d 1353 (Fla. 1st DCA 1978), is quashed.

It is so ordered.

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

ENGLAND, C. J., concurs specially with an opinion.

ADKINS, J., dissents with an opinion.

ENGLAND, Chief Justice,

concurring specially.

I fully agree with the Court’s conclusions as to all of the issues in this case. As regards the application of the financial disclosure provisions to these senators I would add one additional thought.

I do not view the new financial disclosure requirements of the Constitution as an impermissible alteration of the conditions or qualifications of officeholding, tantamount to an “ouster” from office. We said in Myers:

Not every statutory or constitutional impairment in the expectations or in the status of officeholders, either in their official or private capacity, will operate only as to future officeholders. This case does not present an occasion to announce other circumstances in which an impairment would be considered tantamount to an ouster, to use the Reynolds [Reynolds v. Roan, 213 So.2d 425 (Fla.1968)] phraseology. Wherever a line may ultimately be drawn to separate permissible impairment from that which is impermissible, it is clear that this constitutional change so substantially abrogates Myers’ status as a part-time legislator and as a member of The Florida Bar that it would fall well outside the established boundary.

By virtue of seeking and holding public office, public officers inherently lack the degree of privacy possessed by other citizens. The effect of disclosure under the Sunshine Amendment is to expose their financial affairs to public scrutiny, to a degree previously not demanded by political considerations or by state law. This change, although unanticipated at the time the office was sought, is no more than a change in degree of an aspect of privacy which had already been freely relinquished.

ADKINS, Justice,

dissenting.

I dissent on the ground that we have no jurisdiction. The majority holds that the decision of the district court of appeal, Plante v. Florida Commission on Ethics, 356 So.2d 1353 (Fla. 1st DCA 1978) (referred to as Plante II), construes a provision of the state constitution. Art. V, § 3(b)(1). We should exercise greater restraint in the exercise of our jurisdiction.

The district court of appeal in Plante v. Florida Commission on Ethics, 354 So.2d 87, 89 (Fla. 1st DCA) (referred to as Plante I), said:

The separation and independence of the executive, judicial and legislative branches of government is well-established and is one of the basic principles upon which our system of government is founded. On.e branch of government does not have the authority to dilute or destroy the powers vested in another branch. Just as the executive or judicial branch has no authority to determine the qualifications of a Senator to be seated, the Florida Commission on Ethics has no power to make this determination, or to enter a finding of probable cause.
Article II, § 8, Florida Constitution in no way dilutes the power vested in the Senate to serve as the sole body with authority to pass judgment on the discipline or qualifications of one of its members.
It, therefore, follows that under Article II, § 8, Florida Constitution, generally known as the Sunshine Amendment, the Florida Commission on Ethics has the authority to conduct an investigation of complaints alleging a violation of Article II, § 8, Florida Constitution and to make public its report by distribution to all news media or by filing the same with the Secretary of State as it may choose. The Commission has no authority to find probable cause that a member of the House or Senate has violated the Constitution.

The Florida Commission on Ethics elected to rely on this decision as it did not seek any review in this Court. We would have had jurisdiction of this matter, for the decision clearly construed the state constitution.

After this decision the commission met and filed a report stating that the senators, by failing to file full and public disclosure, had breached the public trust. The senators sought relief in the district court, contending that the February 1978 report was in clear violation of the order and opinion of the district court in Plante I. This was the only question confronting the district court when it said:

It appears from the pleadings filed before this Court that the respondent Commission, on February 14, 1978, entered its formal order, paragraph 2(c) thereof, ruling that petitioners “by failing to file such disclosure, the above-named parties have breached the public trust.”
It is blatantly apparent that a body, such as the Commission, found without even the authority to find “probable cause” that an offense has been committed may not subsequently find such person “guilty” of a breach of the public trust by reason of failure to make such filing.
Paragraph 2(c) of the final order and public report of said Commission of date February 15, 1978, being in plain conflict with the order and opinion of this Court, is void and without any force and effect.

356 So.2d 1353, 1354.

When the commission failed to seek review of Plante I, the decision of the court became the law of the case. The decision of the district court was rendered on a particular issue and was conclusive as to the parties and the issues decided therein. See 3 Fla.Jur.2d 415, at 569 (1978).

The decision in Plante II held that the February 1978 report of the commission violated the order of the court in Plante I. The February 1978 report was necessarily considered in conjunction with the decision in Plante I and did not involve any new construction or interpretation of a provision of the Florida Constitution.

The decisions of the district court of appeal were clear. In an effort to circumvent the error of the commission in not seeking a review of Plante I, the majority of my colleagues have muddied the murky waters of jurisdiction even more.

I also disagree with the majority on the merits. In my opinion Myers v. Hawkins, 362 So.2d 926 (Fla.1978), is a controlling precedent.

The constitutional provision was not applicable to Myers because the amendment was adopted after his term of office began and affected his right to pursue his profession in the law. We said this right should be protected.

On the other hand the voters have the right to representation by the senators of their choice without the imposition of such subsequent additional burdens being placed upon the office that the elected officials would resign. Their rights deserve the same consideration as the private rights of a senator.

I would either recede from Myers and apply the constitutional provision to all, or follow Myers and allow the same exception to these senators. Certainly the people, in adopting the amendment to the constitution, did not contemplate such theoretical distinctions without a difference.

Holley v. Adams, 238 So.2d 401 (Fla.1970), of course, is not applicable, for the “resign to run” law would not apply unless the official himself voluntarily sought an office other than one he held.

I would dismiss the appeal.

      . The senators were: Kenneth A. Plante, Dempsey J. Barron, Philip D. Lewis, Jack D. Gordon, and Jon C. Thomas.

      . The commission was apparently following the statutory procedure outlined in Chapter 112, Part III, Florida Statutes, which is not now before us.

      . The chairman of the commission stated, after the December 23, 1977, opinion that the commission did not intend to do more than publish a public report. He stated:
      I am sure, again, that I speak for members of the Commission. No member of this Commission, nor has this Commission at any time asserted that it has jurisdiction to discipline a member of the legislature. That is clearly, under the constitution of the State of Florida, a legislative function.
      All we have the authority to do is make an investigation and a public report under the dictates of the Sunshine Amendment, .

      . 362 So.2d at 935 n.38.

      . See Plante v. Gonzalez, 575 F.2d 1119 (5th Cir. 1978), cert, denied,-U.S.-, 99 S.Ct. 1047, 59 L.Ed.2d 90 (1979).


author: HATCHETT, Justice.

text:
    STATE of Florida, Petitioner, v. Robert A. PAFFY, Respondent.
    No. 54344.
    Supreme Court of Florida.
    March 22, 1979.

      Jim Smith, Atty. Gen., and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief, App. Div. and Larry S. Weaver, Asst. Public Defenders, West Palm Beach, for respondent.
   HATCHETT, Justice.

Where the value of property obtained or the amount of money received determines whether an offense is a misdemeanor or a felony, and where value or amount is not in dispute, must the court instruct the jury on the lesser offense based on lesser values or amounts than that proved? Because the decision in this case (358 So.2d 32 (Fla. 4th DCA 1978)) is in conflict with Gilford v. State, 313 So.2d 729 (Fla.1975), we exercise our jurisdiction under article Y, section 3(b)(3), Florida Constitution, and answer the question in the negative.

A person other than the respondent (defendant) burglarized a home and stole a department store credit card. Because of the thief’s age, the department store required parental consent when he attempted to make a $225 purchase. The defendant pretended to be the thief’s father and fraudulently authorized use of the card. The defendant was charged with felony fraudulent use of a credit card and conspiracy. He was convicted of attempted felony fraudulent use of a credit card and conspiracy to commit a felony. At trial, he requested an instruction on the misdemean- or offense of fraudulent use of a credit card applicable where the value received is less than $100. Denial of the requested instruction was reversed on appeal on authority of Moore v. State, 352 So.2d 529 (Fla. 4th DCA 1977). We find that denial was appropriate and therefore disapprove the district court’s decision.

In Brown v. State, 206 So.2d 377 (Fla.1968), we held that a trial court must instruct the jury on all necessarily included offenses. We labeled these offenses as category (3) offenses and defined them as follows:

This category also stems from § 919.16, which requires an instruction on “any offense which is necessarily included in the offense charged.” The statutory mandate here requires that the lesser offense be necessarily included in the major offense charged by the accusatory pleading. This simply means that the lesser offense must be an essential aspect of the major offense. In other words, the burden of proof of the major crime cannot be discharged, without proving the lesser crime as an essential link in the chain of evidence. For example, in order to prove a robbery, the state must necessarily prove a larceny as an essential element of the major offense. This is so because every robbery necessarily includes a larceny. Arnold v. State, 83 So.2d 105 (Fla.1955). It is legally impossible to prove a robbery without also proving a larceny.
. Hence, it is necessary to prove the lesser in order to prove the greater. . [I]f there is sufficient evidence to establish the offense charged, there is necessarily sufficient evidence to establish all elements of the lesser included offense. Consequently, if the trial judge finds the evidence sufficient to go to the jury on the major offense, it is inescapable that there must have been proof of the minor offense which is necessarily included in the major.

Brown v. State, 206 So.2d at 381-82, (emphasis in original).

Following our decision in Brown, in Gilford v. State, 313 So.2d 729 (Fla.1975), we held that breaking and entering with the intent to commit petit larceny was not a necessarily included offense of breaking and entering with the intent to commit grand larceny and did not require a category three instruction. This holding was based on the fact that no evidence was introduced to suggest that the value of the property was less than $100.

Sub judice the only proof is of $600.00 worth of liquor, nondepreciable and based on “wholesale value” and not just wholesale “cost”; there is no way to reduce this to the less than $100 market value necessary to include the lesser offense of petty larceny.

Gilford v. State, 313 So.2d at 732, (emphasis in original).

In Moore v. State, 352 So.2d 529 (Fla. 4th DCA 1977), the court reached a contrary result. Reasoning that it is impossible to steal $100 without stealing $1 the court held that petit larceny is a necessarily included offense of grand larceny even where a defendant was charged with stealing more than $100 and the only proof was more than $100. We disagree and disapprove the district court’s decision. Under Brown, all elements of the necessarily included offense must be proved in proving the offense charged. In cases where two crimes are distinguished by the value of the property involved, and the value is not disputed, proof of the greater amount does not constitute proof of the lesser. Proof of the greater amount is not simply an additional element. It is an entirely different element unrelated to proof of the lesser offense. It is possible to steal a $100 bill or a $1,000 bill without stealing a $1 bill. Proof of the lesser offense requires evidence of an amount lower than $100. If the only evidence offered shows a value to be greater than $100, the lesser offense has not been proved. When the evidence as to value is in dispute, a defendant is entitled to an instruction on the lesser offense under Brown category (4).

We hold that where value is not in dispute, a trial court need not instruct the jury on lesser offenses based on values other than the value proved.

Accordingly, the decision of the Fourth District Court of Appeal is quashed and the defendant’s conviction affirmed.

It is so ordered.

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

ADKINS and BOYD, JJ., dissent.

       § 777.04(3), Fla.Stat. (1977), states:
      Whoever shall agree, conspire, combine, or confederate with another person or persons to commit any offense commits the offense of criminal conspiracy and shall, when no express provision is made by law for the punishment of such conspiracy, be punished as provided in subsection (4).
      § 817.61, Fla.Stat. (1977), states in pertinent part:
      A person who, with intent to defraud the issuer uses, for the purpose of obtaining money, goods, services, or anything else of value, a credit card obtained or retained in violation of this part ... or who obtains money, goods, services or anything else of value by representing, without the consent of the cardholder, that he is the holder of a specified card . violates this subsection .


text:
    Jerrell R. GRIFFIS, et ux., Appellants, v. UNIT CRANE & SHOVEL CORR, etc., et al., Appellees.
    No. 55101.
    Supreme Court of Florida.
    March 22, 1979.
    Robert F. Spohrer, of Zisser, Robison & Spohrer, Jacksonville, for appellants.
    Carl K. Staas, of Boyd, Jenerette, Leemis & Staas, Jacksonville, for appellees.
    Larry Klein, West Palm Beach, for The Academy of Florida Trial Lawyers, amicus curiae.
   PER CURIAM.

Reversed. Overland Construction Co. v. Sirmons, 369 So.2d 572 (Fla. 1979).

ENGLAND, C. J., and ADKINS, SUND-BERG and HATCHETT, JJ., concur.

BOYD, OVERTON and ALDERMAN, JJ., dissent.


text:
    THE FLORIDA BAR, Petitioner, v. Carlton L. WELCH, Respondent.
    No. 55775.
    Supreme Court of Florida.
    March 22, 1979.
    John A. Weiss, Branch Staff Counsel of The Florida Bar, Tallahassee, for petitioner.
    No appearance for respondent.
   PER CURIAM.

We have for review the report of the referee in this Florida Bar disciplinary proceeding.

Respondent, a member of the bar, was the attorney representing a criminal defendant in circuit court in Duval County. While the jury was out considering the verdict in his client’s case, respondent asked the client if he minded if respondent left the courtroom to keep a bowling date. The client, his parents, and his wife assented; respondent, however, never informed them that the jury might come back to ask questions of the court. Respondent left without leaving a telephone number or an address where he might be reached.

When the jury sent word that it had reached a verdict, the judge told the bailiff to call the attorneys into the courtroom. Respondent could not be found. The judge asked respondent’s client if he objected to hearing the verdict without his lawyer’s presence. The client requested that respondent be present. The judge, however, decided to receive the verdict. The jury found the client guilty of the crime charged, and the judge polled the jury on his own motion.

The following day respondent called the judge’s office to find out the result of his client’s trial and was immediately informed that the judge wished to see him. A contempt hearing was held, and respondent was found guilty and ordered to pay a $300 fine or spend fifteen days in county jail. Respondent’s conviction has been affirmed on appeal. Welch v. State, 359 So.2d 508 (Fla. 1st DCA), cert. denied, 365 So.2d 715 (Fla.1978).

We agree with the referee’s analysis of respondent Carlton Welch’s conduct. An attorney’s duty to his client in a case does not end when the jury retires to decide the client’s fate. Often a jury will request further instructions or request that testimony be read. More importantly, the lawyer must be present to ensure the propriety of the verdict. In this case the trial judge performed Mr. Welch’s function for him, by polling the jury.

Plain common sense dictates that an attorney must remain in or near the courtroom and be immediately available to the court when a jury is deliberating its verdict. Leave of court is required when an attorney desires to leave the premises. In this case, fortunately, no prejudice resulted to his client. We find, however, that Carlton Welch has neglected a legal matter entrusted to him and has engaged in conduct reflecting adversely on his fitness to practice law in violation of our disciplinary rules.

Therefore, we hereby publicly reprimand Carlton Welch for his conduct in this case, and order him to pay $466.91, representing the costs of this proceeding.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

ADKINS, J., dissents.

      . Fla. Bar Code Prof. Resp., D.R. 1 102(A)(6), 6 101(A)(3).


text:
    THE FLORIDA BAR, Complainant, v. Harry B. DUFFY, Jr., Respondent.
    No. 56029.
    Supreme Court of Florida.
    March 22, 1979.
    G. Lynn Kilpatrick, Branch Staff Counsel, Fort Lauderdale, and James P. Holla-way, Asst. Staff Counsel, Tallahassee, of The Florida Bar, for complainant.
    No appearance, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Unconditional Guilty Plea.

On January 29, 1979, The Florida Bar filed its petition alleging:

1. Respondent, HARRY B. DUFFY, JR., is a member of The Florida Bar.
2. Respondent abandoned his law practice in June of 1976, at which time he had misappropriated trust funds in excess of $100,000.00.
3. Based upon the foregoing, this Court temporarily suspended Respondent on April 29, 1977.
4. Respondents [sic ] handling of trust money violated D.R. 9-102 of the Code of Professional Responsibility and Integration Rule 11.02(4) of The Florida Bar, and warrants his disbarment.

5. Respondent admits the foregoing and has tendered, pursuant to Integration Rule 11.06(11), his unconditional guilty plea for disbarment. . . . The plea has been approved by the Executive Committee of the Board of Governors of The Florida Bar.

6. Respondent has agreed to the following disciplinary measures:
A. Disbarment from the practice of law in Florida for at least five (5) years from the date of a final order of disbarment by this Court.
B. Full restitution to the Client Security Fund of The Florida Bar for any and all claims paid against Harry B. Duffy as a prerequisite of reinstatement.
C.Full payment, satisfaction or agreements for satisfaction, or releases of all legal debtíj as a prerequisite of reinstatement.
7.Respondents [sic] disbarment will best serve the interest of the public, the courts, and The Florida Bar.

The Petition for Approval of Unconditional Guilty Plea is granted, and Respondent, Harry B. Duffy, Jr., is hereby disbarred, effective immediately. No petition for readmission shall be entertained until a period of five years has elapsed from the date of this judgment, and only then upon proof of rehabilitation and of compliance with the terms set forth above.

It is so ordered.

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


author: DOWNEY, Chief Judge. DOWNEY, Chief Judge.

text:
    FLORIDA FARM BUREAU CASUALTY CO., Appellant, v. Suetta L. ANDREWS, as Personal Representative of the Estate of Thomas Larry Andrews, Deceased, et al., Appellees.
    No. 78-183.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 1978.
    Rehearing Denied April 25, 1979.
    Marjorie D. Gadarian of Jones, Paine & Foster, West Palm Beach, for appellant.
    Edna L. Caruso of Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for appellee Andrews.
   DOWNEY, Chief Judge.

Appellant seeks review of an order of the trial court granting summary judgment for appellee, authorizing appellee to stack under-insured motorist coverage and denying appellant’s requested set-off of third party recoveries against the under-insured motorist carrier’s liability.

The undisputed facts are that on October 8, 1975, Larry Andrews, while operating a pick-up truck, owned by Pic-Nic Tomato Farms, Inc., was involved in an accident with a station wagon and trailer. The station wagon was owned by Donofrio and driven by Terry. The trailer was owned by Diamond C Ranch. Terry had a $15,-000/$30,000 liability insurance policy with Government Employees Insurance Company (GEICO); Donofrio had a $15,000/$30,000 liability policy with Allstate Insurance Company (Allstate) and the Diamond C Ranch had a $100,000/$300,000 liability policy with Reliance Insurance Company (Reliance). The pick-up truck, operated by Andrews, was owned by Pic-Nic Tomato Farms, Inc., and was insured by a fleet policy with Florida Farm Bureau Casualty Co. (Florida Farm Bureau), which provided coverage for six pick-up trucks owned by said corporation. The named insured in the fleet policy was “Pic-Nic Tomato Farms and/or Larry Andrews.” The fleet policy provided for uninsured motorist coverage on each of the trucks in the amount of $100,000/$300,000. In addition to the foregoing, Andrews personally owned a 1970 Buick which was also insured by Florida Farm Bureau under a policy which provided uninsured motorist coverage of $100,-000/$300,000.

Suetta Andrews, as Personal Representative of her husband’s estate, sued Donofrio, Terry, Diamond C Ranch and their insurance carriers, as well as Florida Farm Bureau, Andrews’ uninsured motorist carrier. Plaintiff claimed she was entitled to recover against Florida Farm Bureau under the uninsured-under insured motorist coverage because the coverage furnished by Allstate, GEICO and Reliance was insufficient to cover the damages sustained. Both parties moved for summary judgment in the trial court on the question of the amount of under-insured motorist coverage available to the plaintiff-Andrews and the question of defendant’s set-off. The plaintiff claimed she was entitled to $700,000 in under-insured motorist coverage comprised of $100,000 on Andrews’ Buick and $600,000 on the six pick-up trucks owned by the corporation and that she was entitled to stack all of this coverage. The defendant, Florida Farm Bureau, conceded that the plaintiff was entitled to under-insured motorist coverage of $200,000 ($100,000 on the Buick and $100,000 on the pick-up truck Andrews was occupying at the time of the accident). In addition, the Florida Farm Bureau maintained it was entitled to set-off against the plaintiff’s uninsured motorist’s claim the amounts which the plaintiff recovered from workmen’s compensation, PIP benefits, recovery against the tortfeasors, etc.

The trial judge granted a summary judgment to the plaintiff, holding that she was entitled to $700,000 in under-insured motorist coverage. He also held that the $700,000 available coverage “shall be excess over any benefits available to the plaintiff under any workmen’s compensation law, personal injury protection benefits, ... or from the owner or operator of the uninsured owner vehicle . . . .”

We have reviewed the record and find no genuine issue of fact which would preclude entry of the summary judgment vis-a-vis the appellee’s right to stack the coverage of the various vehicles on which the decedent was a named insured. It is unclear why he was listed on the policy as a named insured; we could speculate possibly that an error was made; however, there is no support in the pleadings or record for this conclusion. Thus, a reversal of the summary judgment is unwarranted.

Appellant’s second point for reversal is that the trial court erred in holding that appellant was not entitled to a set off against appellee’s claim for any workmen’s compensation, personal injury protection and disability benefits and for benefits received from third party liability insurance. In this respect the order of the trial court stated in pertinent part:

“. . . [I]t is the finding of this Court that the Plaintiff is entitled to stack the $100,000.00 of underinsured motorist coverage on each of the seven vehicles insured by the two policies of insurance with FLORIDA FARM BUREAU CASUALTY INSURANCE COMPANY and that said insurance coverage in the-total amount of $700,000.00 shall be excess over any benefits available to the plaintiff under any workmen’s compensation law, personal injury protection benefits, disability benefits law, or any similar law; under any automobile liability or automobile medical expense coverages; or from the owner or operator of the uninsured motor vehicle or any other person or organization jointly or severally liable together with such owner or operator for the accident as is provided by Florida Statute Section 627.727(1) F.S.A.”

We are uncertain whether the trial court intended the appellant to have a right of set off for any other third party benefits received. But it is clearly the law of this state as provided by the Legislature that under-insured motorist coverage is to be treated as excess over any third party benefits such as workmen’s compensation, personal injury protection, disability benefits and recoveries against insurance held by a tortfeasor. The language is not subject to ambiguity because the statute adds to the phrase “shall be excess over” the clarifying phrase “but shall not duplicate” those other benefits available. In Dewberry v. Autoowners Insurance Company, 363 So.2d 1077 (Fla.1978), the Supreme Court settled any question as to the proper interpretation of that statutory section in holding that the under-insured motorist carrier is entitled to deduct from its liability the amount of those other third party benefits received by its insured.

The question of appellee’s entitlement to equitable distribution regarding any of the third party benefits does not appear to have been presented to the trial court and, accordingly, we do not treat that question. The judgment appealed from is affirmed and the cause is remanded for further proceedings consistent with this opinion.

DAUKSCH and MOORE, JJ., concur.

ON PETITION FOR CLARIFICATION AND/OR REHEARING

DOWNEY, Chief Judge.

On Petition for clarification or rehearing appellees argue that appellant, the uninsured motorist insurance carrier, should not be entitled to a set-off for workmen’s compensation benefits paid appellee.

This contention is incorrect. It is true that Dewberry v. Auto Owners Insurance Company, 363 So.2d 1077 (Fla. 1978), stated that the theory of uninsured motorist coverage is that uninsured motorist coverage is meant to compensate the plaintiff for a deficiency in the tortfeasor’s personal liability insurance coverage. Hence, if the tort-feasor were insured to the same extent as the claimant, the tortfeasor’s insurance carrier would not be entitled to a set-off for any benefits, workmen’s compensation or otherwise, which the insured plaintiff was entitled to. However, this theory is modified by the clear statutory language of Section 627.727, Florida Statutes (1977), which in pertinent part provides:

“The coverage provided under this section (uninsured motorist coverage) shall be excess over, but shall not duplicate the benefits available to an insured under any workmen’s compensation law . . . .” (Emphasis supplied.)

While the stated theory behind uninsured motorist coverage supports the argument of appellee, the clear language of the statute must prevail. Therefore, appellant is entitled to set off the workmen’s compensation benefits received by appellee.

With the foregoing clarification the ap-pellee’s petition for rehearing is denied.

DAUKSCH and MOORE, JJ., concur.

      . The accident in question occurred in 1975, thus Section 627.4132, Florida Statutes (1976), is not applicable.

      . Section 627.727(1), Florida Statutes (1975).


author: RYDER, Judge.

text:
    Harold C. HESSELRODE, Appellant, v. STATE of Florida, Appellee.
    No. 78-371.
    District Court of Appeal of Florida, Second District.
    Feb. 14, 1979.
    Rehearing Denied March 21, 1979.

      W. Daniel Kearney of Kearney & Muloek, Bradenton, and Ginsburg & Byrd, P. A., Sarasota, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

After a lengthy hearing on a motion to suppress resulted in the trial judge granting portions of the motion but denying other portions, appellant pleaded nolo conten-dere to a charge of possession of over 100 pounds of marijuana. He preserved his right to appeal and presents us with six points, only one of which merits discussion.

Again we are confronted with a question of search and seizure and we are immediately remindéd somewhat of the case of Wilson v. State, 363 So.2d 1146 (Fla.2d DCA 1978), except there the police failed to obtain a search warrant and here they sought advice in obtaining a search warrant, faulty as that advice turned out to be. The record on appeal discloses that representatives of the Longboat Key Police Department, having what they felt to be probable cause, contacted a representative of the State Attorney’s Office who drafted and had prepared a search warrant for the use of the police. However, the author of the warrant so strictly structured the warrant’s terms as to have it issued and directed to an extremely closed category of persons, namely: “To: All and singular the Sheriff and/or Deputy Sheriffs of Manatee County, . . .” The record is silent as to why the search warrant was so strictly structured, but be that as it may, that was how and to whom it was issued — to Sheriffs — and we emphasize, not to any other category of peace officers.

The affidavit for the warrant, so issued, was executed by officers of the Longboat Key Police Department. The execution of the warrant and the ensuing search and seizure of contraband located within the described premises was conducted solely by members of the Longboat Key Police Department.

Section 933.08, Florida Statutes, (1977) reads:

“The search warrant shall in all cases be served by any of the officers mentioned in its direction, but by no other person except in aid of the officer requiring it, said officer being present and acting in its execution.” (Emphasis added)

Appellant urges that the warrant is fatally defective because it is directed to one category of peace officers and yet another category of police executed the warrant. We agree.

First, we should remark that on this point there is little case law, and we perceive the reason simply is that this point is rather basic and there has been little litigation because most law enforcement agencies comply with the obvious and plain directions of the statute.

Before traveling further, we should also observe what the people of Florida adopted in an even more organic part of our law in Florida relating to searches and seizures. In our Constitution, Article I, Declaration of Rights, Section 12, entitled Searches and Seizures, we find the following:

“The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall issue except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communications to be intercepted, and the nature of evidence to be obtained. Articles or information obtained in violation of this right shall not be admissible in evidence.”

It has been long well-settled law that statutes authorizing searches and seizures must be strictly construed and affidavits and search warrants issued thereunder must strictly conform to the constitutional and statutory provisions authorizing their making and issuance. State ex rel. Wilson v. Quigg, 154 Fla. 348, 17 So.2d 697 (1944); Gildrie v. State, 94 Fla. 134, 113 So. 704 (1927); Hart v. State, 89 Fla. 202, 103 So. 633 (1925); Jackson v. State, 87 Fla. 262, 99 So. 548 (1924); Carter v. State, 199 So.2d 324 (Fla.2d DCA 1967).

Valiantly as did the State Attorney’s Office try here, it could not cure the original sin initiated by the hand of one of its members. The State would have us say that because there were members of the Manatee Sheriff’s Office out and about the scene, then service of the warrant by the Longboat Key officers satisfied the statute and the constitution. The State points to Nofs v. State, 295 So.2d 308 (Fla.2d DCA 1974). In Nofs the warrant was directed to “the Sheriff and/or Deputy Sheriffs of Pinellas County, Florida; and police officers of the City of St. Petersburg, Florida.” Service of the warrant was made in the City of Gulf-port by, and this is another twist, a St. Petersburg police officer. The warrant in Nofs was saved for, although the officer was technically out of his jurisdiction as a St. Petersburg police officer, he was, however, a bonded deputy sheriff. He thus belonged to one of the categories to which the warrant was directed. He also accompanied and assisted the other officers in searching the premises subject to the warrant. Thus, Nofs differs from this case.

A fair reading of the transcript of the hearing in the case sub judice leads us to but one conclusion and that is this investigation was solely the work of the Longboat Key Police Department and only incidentally others. No member of the Manatee Sheriff’s Office on July 4, 1977 participated in this investigation, the execution of the warrant or the search of the premises subject to the warrant. At best, what Manatee deputies were present were there as passive observers obtaining what intelligence information they could gather for the separate use of their own department.

Occasionally, when a court suppresses evidence gathered by law enforcement agencies after many hours of hard labor, one is led to believe it is the fault of the court for the loss of evidence, even though the court was not present when the evidence was seized and had nothing to do with the direction of the officers as they accomplished the task. It would be too easy for this court to approve the procedure used herein, but the record cries out that the procedure contravened the statute and was wrong.

Save for the First and Fifth Amendments, the Fourth Amendment, from which we receive Section 12 to Article I of our own Florida Constitution, is probably most important to the liberty of all freedom loving citizens. One cannot sit idly by and observe its meaning be slowly eroded away even by well-meaning police and prosecutors.

A court is reluctant to suppress evidence, which if obtained in a lawful fashion, would have been of compelling importance to the prosecution for felony. But there is no other course by which a court can insist upon compliance by police officers with the requirements of law with respect to searches and seizures than to suppress evidence illegally obtained.

We share the frustration so eloquently expressed by the learned trial judge below but as keepers of the law, we must maintain the integrity of our constitution adopted by the people and statutes given to us by our legislators.

Thus, we reverse the ruling of the trial judge as to the admissability of contraband found in the premises subject to the search warrant and hold that such contraband seized in said premises subject to the faulty warrant be suppressed. Because of this, it is not necessary to discuss appellant’s fourth point urging the search warrant was tainted by illegally procured evidence.

All of this avails Mr. Hesselrode very little, however. Our review of the record and briefs reveals there is no merit to the other points raised on appeal, therefore, we affirm the trial judge’s rulings thereon. Furthermore, our review of the record also shows that appellant’s plea of nolo contendere was knowingly, intelligently, freely and voluntarily entered; and as there is ample evidence of the existence of more than 100 pounds of marijuana (some fifteen bales) legally seized before and apart from the warrant and of which appellant in his plea acknowledged illegal possession, his judgment of guilt and sentence are hereby AFFIRMED.

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


author: DANAHY, Judge.

text:
    AETNA INSURANCE COMPANY, Appellant, v. Robert M. BUCHANAN, Jr., Appellee.
    No. 78-649.
    District Court of Appeal of Florida, Second District.
    Feb. 23, 1979.
    Rehearing Denied March 30, 1979.

      John A. Curtiss of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Steven D. Merryday, William H. McBride, Jr., Tallahassee, and Julian Clarkson of Holland & Knight, Fort Myers, for appellee.
   DANAHY, Judge.

The question before us is whether an individual indemnitor who is not the principal may unilaterally terminate his obligations under an indemnity agreement in favor of a surety which is part of the application for a securities dealer’s bond, where the indemnity agreement contains no provision granting a right of termination to the indemnitor but the bond issued on the application contains a provision giving either the surety or the principal the right to cancel the bond on 60 days notice. In this action by the surety against the individual indem-nitor, the trial judge ruled that the indem-nitor had the right of termination and that it was exercised. Pursuant to that ruling a summary judgment was entered in favor of the indemnitor and against the surety. We hold that the trial judge erred, and reverse.

The original plaintiff in this case asserted claims based on alleged fraudulent misrepresentations which caused him to suffer loss on the purchase of worthless securities. His action was brought against a securities dealer, All-States Tax Exempt Securities, Inc. (All-States), Pat A. Tamburri, sole stockholder of All-States (Tamburri), one of All-States’ salesmen, Jules Steele (Steele), and appellant Aetna Insurance Company (Aetna), surety on the securities dealer’s bond issued to All-Státes as required by Florida law. Aetna filed a third-party complaint against appellee (Buchanan) for indemnification based on an indemnity agreement signed by Buchanan when All-States applied for the bond.

At the time All-States applied to Aetna for the bond, Tamburri and Buchanan were the only two stockholders of All-States. Aetna required All-States, as the proposed principal, to execute an indemnity agreement appearing on the reverse side of the bond application form. Following that indemnity, agreement there was a paragraph headed “additional indemnity,” which Tam-burri and Buchanan both signed in their individual capacities. That paragraph provided:

In consideration of [Aetna’s] executing or procuring the execution of, or refraining from presently exercising its rights to cancel, the bond herein applied for, we jointly and severally join in the foregoing agreement.

Thereafter Aetna issued the bond to All-States in accordance with the application, with an issue date of January 1, 1975. The applicable Florida statute sets out verbatim the provisions required to be in a securities dealer’s bond. Two of those provisions, which were contained in the bond issued by Aetna to All-States, are as follows:

. Either the principal or the surety may cancel this bond as an entirety by giving 60 days written notice to the Department of Banking and Finance at Tallahassee, Florida, and if cancelled by the surety, copy of said notice of cancellation shall be sent by registered mail to the principal hereunder. Said notice to the Department of Banking and Finance shall also be sent by registered mail. In case of such cancellation by either the principal or the surety no further obligation shall be incurred under this bond at the expiration of said 60 days, but the liability of the principal and surety shall apply as above set out as to any acts or omissions which may have occurred prior to the effective date of this cancellation. The period for which this bond shall remain in force and effect, unless previously cancelled as hereinabove provided for, shall be from the date of issuance through December 31 of that year . at the expiration of which time it shall ipso facto cease and terminate as to all future transactions only.

The indemnity agreement appearing on the back of the bond application form contained no provision concerning cancellation or termination.

On January 15, 1975, fifteen days after the date of issuance of the bond, Buchanan sold his shares of All-States to Tamburri and resigned as a corporate officer. Thereafter Buchanan had no connection with All-States.

Subsequently, on March 5, 1975, Buchanan wrote Aetna a letter purporting to terminate his obligations as an indemnitor with respect to the bond as of January 15, 1975. The letter explained that Buchanan had sold all of his interest in All-States and had resigned as a corporate officer. Buchanan sent the same or a similar letter to the office of the Comptroller, Division of Securities, of the State of Florida.

Aetna investigated the situation to determine whether Buchanan’s separation from All-States indicated any increased risk of a bond claim or dishonest acts on the part of All-States which conceivably could give rise to claims under the bond. That investigation disclosed no evidence of dishonest or unethical securities practice on the part of All-States. Apparently, therefore, Aetna decided that it would continue its business relationship with All-States as surety under the bond. There is no contention here that Aetna acquiesced in Buchanan’s purported termination of his indemnity obligations.

The fraudulent misrepresentations alleged by the plaintiff in this case were those of Tamburri and Steele, acting for All-States, which the plaintiff said took place between July and December of 1975, several months after Buchanan divorced himself from All-States. It is undisputed that Buchanan occupies an entirely innocent position with respect to the claim against Aetna for which Aetna seeks indemnification.

In response to Aetna’s third-party complaint against him for indemnification, Buchanan asserted as an affirmative defense that he had specifically exercised his “lawful right” to terminate his obligations under the indemnity agreement on January 15, 1975 and from that date forward was no longer liable under that agreement. Aetna attacked the legal sufficiency of the affirmative defense by a motion to strike and a motion for partial summary judgment, arguing that Buchanan had no right to unilaterally cancel his obligations as indemnitor. The trial judge denied these motions in a written order in which he ruled that Buchanan occupied the position of the principal as to his obligations and rights under the indemnity agreement and the bond and, being in that position, he had the lawful right to exercise the prerogative of the principal to cancel obligations under the bond and the indemnity agreement. The trial judge reasoned that since the surety and the principal were given the opportunity to cancel their obligations under the bond “so as to act for their own protection,” Buchanan had the same right to cancel his liability under the indemnity agreement and the bond.

In support of its position that the trial judge erred, Aetna asserts that the surety bond and the indemnity agreement were separate and independent legal instruments, each with its own separate parties and its own independent legal inter-relationship; therefore, it was improper for the trial judge to consider a provision of the bond to be a provision of the indemnity agreement. Aetna cites Harrison v. American Fire and Casualty Co., 226 So.2d 28 (Fla. 3d DCA 1969) as authority for the proposition that the status of an indemnitor of a surety on a bond is to be determined by the indemnity agreement and not by the provisions of the bond. That indeed is the holding in the Harrison case, although it did not involve the issue present here.

The indemnitor in Harrison sought to raise certain defenses as against the surety which would have been available to the principal under the bond. In effect, he asserted that he occupied the status of the principal. The court ruled that he was not entitled to the asserted defenses because his obligation as an indemnitor was governed by the unqualified language of the indemnity agreement, not by the bond.

The reasoning of the Harrison court is applicable here. Looking to the indemnity agreement,, we find no ambiguity. The in-demnitor’s obligation was to indemnify the surety against loss or liability which the surety might sustain or incur by reason of executing the bond applied for or in protecting its position thereunder. The application form specified that the term of the bond was to be one year and that determined the duration of the indemnity obligation. It seems obvious to us that the parties intended, and certainly the surety expected, that the extent of the indemnity obligation was to be the same as the outer limits of the surety’s risk exposure with respect to the bond. To say that an indem-nitor under such an arrangement may unilaterally cancel any further indemnity obligation on his part while the bond remains in effect would contradict the clear provisions of the indemnity agreement and undermine the protection for which the surety bargained.

Buchanan points out that his co-indemni-tors, Tamburri and All-States, had the ability to terminate their indemnity obligations by cancelling the bond, which All-States as principal had the right to do and which Tamburri had the ability to cause All-States to do. Buchanan says that since Tamburri and All-States had this power, he should have the power also; otherwise, he would be left exposed to liability for the actions of All-States and Tamburri, a result which Buchanan characterizes as absurd and unconscionable.

Not so. When Buchanan entered into the indemnity agreement, he occupied a position with respect to All-States which gave him some control over the situation as a practical matter. That was the only protection he had, and he relinquished it when he left All-States without requiring a cancellation of the bond by All-States as a condition of his departure. Since he did not (and perhaps as a practical matter he could not) Buchanan was left unprotected as to activities of his former business associates which took place thereafter. This is not an absurd or unconscionable result but the foreseeable consequence of Buchanan’s assumption of the indemnity obligation. We can find no authority for the proposition that an individual who undertakes an obligation as indemnitor on behalf of a principal to whom he then has a business relationship, thus making the arrangement advantageous to both, should be entitled to terminate that obligation when the business relationship has ended and the arrangement is no longer beneficial to the indemnitor. His motive for undertaking the obligation may no longer exist, and indeed he may have every reason in the world for desiring to relieve himself of the obligation, but he nevertheless remains bound by the clear language of the agreement.

The summary judgment against Aetna on its third-party complaint against Buchanan is reversed and this case remanded for further proceedings not inconsistent with this opinion.

OTT, Acting C. J. and RYDER, J., concur.

      . § 517.13, Fla.Stat. (1977).

      . The Comptroller is the head of the Department of Banking and Finance. § 20.12, Fla. Stat. (1977).


author: SCHEB, Acting Chief Judge.

text:
    Margaret B. CHOVNICK, Appellant, v. Stanley D. CHOVNICK, Appellee.
    No. 78-1413.
    District Court of Appeal of Florida, Second District.
    Feb. 23, 1979.
    Rehearing Denied March 30, 1979.
    Selig I. Goldin, of Goldin & Cates, Gaines-ville, for appellant.
    Robert R. Tench, Clearwater, for appel-lee.
   SCHEB, Acting Chief Judge.

Appellant Margaret Chovnick challenges the trial court’s order dismissing with prejudice her petition for modification of a final judgment of dissolution of marriage.

On October 12, 1973, the circuit court entered a final judgment dissolving the marriage between appellant and her former husband, appellee Stanley Chovnick. The judgment granted appellant alimony and child support in accordance with a settlement agreement entered into by the parties.

On June 14, 1978, appellant filed her amended petition for modification alleging that she was in need of further financial assistance from appellee due to a change in circumstances since the judgment of dissolution was entered. She attached certain financial and medical data in support of her contentions. Appellee moved to dismiss the petition for failure to state a cause of action. The trial court granted appellee’s motion, and dismissed appellant’s petition with prejudice when she refused to amend further.

Section 61.14(1), Fla.Stat. (1977) provides:

When the parties have entered into, or hereafter enter into, an agreement for. payments for, or instead of, support, maintenance, or alimony, whether in connection with a proceeding for dissolution or separate maintenance or with any voluntary property settlement, or when a party is required by court order to make any payments, and the circumstances or the financial ability of either party has changed, or when the child or children who are the beneficiaries of an agreement or court order as described herein have reached the age of 18 years since the execution of such agreement or the rendition of the order, either party may apply to the circuit court of the circuit in which the parties, or either of them, resided at the date of the execution of the agreement or reside at the date of the application, or in which the agreement was executed or in which the order was rendered, for a judgment decreasing or increasing the amount of support, maintenance, or alimony, and the court has jurisdiction to make orders as equity requires, with due regard to the changed circumstances or the financial ability of the parties or the child or children, decreasing, increasing, or confirming the amount of separate support, maintenance, or alimony provided for in the agreement or order.

This statute does not contemplate technical pleadings; rather, it provides a method whereby a former spouse can obtain a hearing and judicial determination as to entitlement to relief. It looks toward the petitioner making an evidentiary showing that the circumstances of the parties have substantially changed. Cordrey v. Cordrey, 206 So.2d 234 (Fla. 2d DCA 1968). Here the trial court wrongfully dismissed appellant’s petition without affording her an opportunity to present any evidence on this issue.

We do not, of course, make any comment on the merits of appellant’s petition. This is a matter for the trial judge to determine upon proper notice and hearing. See Teta v. Teta, 297 So.2d 642, 646 (Fla. 1st DCA 1974).

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

OTT and DANAHY, JJ., concur.