author: ADKINS, Justice.

text:
    Daniel Nelson SILVA, Petitioner, v. STATE of Florida, Respondent.
    No. 49094.
    Supreme Court of Florida.
    March 24, 1977.

      David J. Busch and Michael M. Corin, Asst. Public Defenders, for petitioner.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for respondent.
   ADKINS, Justice.

By petition for writ of certiorari, we are asked to review the decision of the District Court of Appeal, First District, Silva v. State, 327 So.2d 107 (Fla.1st DCA 1976), which affirmed the conviction of defendant, petitioner herein, and upheld the trial court’s denial of a motion to suppress evidence seized in the course of a search of his apartment. Petitioner assigns conflict with several Florida appellate decisions, but relies primarily on Lawton v. State, 320 So.2d 463 (Fla.2d DCA 1975). We have jurisdiction.

The facts of the case are as follows: Petitioner, Daniel Silva, and a Mrs. Brandon lived together from August, 1973, until New Year’s Day, 1975. When petitioner moved in, they leased their apartment in the names of Mr. Silva and Mrs. Silva (who was actually Mrs. Brandon). Until a few months before his arrest, petitioner had paid the rent. Mrs. Brandon had lived in this same apartment for six years prior to the time petitioner moved in.

On New Year’s Day, 1975, petitioner hit Mrs. Brandon in the mouth while her nine-year-old son watched. The son ran from the house screaming that he was going to call the police. Petitioner told Mrs. Brandon to go after the boy, which she did. Instead of returning home, however, she continued walking to a local convenience store where she called the police. In her call, she informed the police that petitioner had hit her and that he was a convicted felon and had guns in the closet.

She then returned home with her son but waited outside until the police arrived. When they arrived and Mrs. Brandon tried to let them in, she discovered the door was locked. In order to get in, Mrs. Brandon put her hand through the jalousies and unlocked the door from the inside. Once inside the apartment, she told the police that the guns were in the hall closet. Testimony at trial established that the closet contained only petitioner’s belongings, that Mrs. Brandon went into it only when cleaning house, and that her son occasionally went in.

Petitioner told the police officers that he forbade them to search the closet. With Mrs. Brandon’s consent, but over petitioner’s objections, they conducted a warrant-less search of the closet, found and took the guns, and arrested petitioner. The trial court denied a motion to suppress the evidence seized.

This case conflicts with Lawton v. State, supra. In Lawton, the defendant and his wife had separated. Two weeks after the wife moved out, she returned to their apartment to pick up her marriage license preparatory to filing for dissolution. When she went in, she found defendant with another woman and immediately phoned the police. When they arrived, defendant attempted to prevent them from entering and searching the apartment. At the wife’s continued urging and over defendant’s objections, the police searched the bedroom and seized marijuana and drug paraphernalia found therein. The trial court’s denial of defendant’s motion to suppress was reversed by the Second District Court of Appeal. The court held that assuming, without deciding, that the wife “had sufficient control of the premises to authorize her to consent to a search, . . . the search cannot stand because appellant was physically present on the premises and affirmatively objected to a search.” Lawton v. State, supra, at 464 (Emphasis theirs.)

Though the law in Florida concerning a spouse’s lack of authority to consent to a search of the couple’s premises is not without exceptions, it has generally been held that the husband and wife relationship, without more, does not authorize one spouse to waive the constitutional rights of the other by consenting to a warrantless search. State v. Blakely, 230 So.2d 698 (Fla.2d DCA 1970) at 700; and Carlton v. State, 111 Fla. 777, 149 So. 767 (Fla.1933). Situations in which a man and woman are living as husband and wife without being married have produced the opposite result. The living arrangements of a couple and the appearance of their relationship to the outside world may be identical to those of a married couple. However, the couple who have not been formally married have been more freely permitted to waive one another’s constitutional rights against unreasonable searches. Baugus v. State, 141 So.2d 264 (Fla.1962), and State v. Blakely, supra. The language in Blakely and Baugus, clearly indicate that the consent of a paramour will be sufficient to validate a search under circumstances in which the consent of a wife would not. On justifying their finding that the warrantless search of a hotel room was lawful, over the objections of co-defendant but with the consent of a female paramour, the Court stated, “The woman who shared the room with Sikalis could not be dignified as a wife.” Baugus v. State, supra, at 268. In Blakely, the State argued that since, under Baugus, a mistress has authority to consent to a search of a hotel room, surely a wife must have at least as much authority to consent to a search of the house in which she and her husband live. The Second District Court held that the paramours in Baugus used the room as individuals and that the husband and wife relationship was of such a nature as to prevent either spouse from acting against the family’s interest by consenting to a warrantless search of the other’s property. State v. Blakely, supra, at 700.

Other state courts and some federal courts have held that husbands and wives generally do have authority to consent for one another to searches when the other spouse is absent. There are exceptions, however. In Kelley v. State, 184 Tenn. 143, 197 S.W.2d 545 (1946), the Tennessee court held that although the wife normally could consent, Mrs. Kelley had abused her duty to act in the family’s interest, which was the basis of the authority conferred on her. By requesting and consenting to a search, in anger over her husband’s having beaten her and in order to punish him, she had given up authority to voluntarily consent for her husband. The United States Court of Appeal for the Third Circuit in United States ex rel. Cabey v. Mazurkiewicz, 431 F.2d 839 (3rd Cir. 1970), held:

“A new and intruding element which has not been isolated heretofore may be said to distinguish a third class of cases. This element is the consenting party’s agreement to the search out of motives of hostility to the other, made with the intent to harm him by an antagonistic consent. Where it is possible to identify this element a serious question would arise whether the right to consent is not spent when it reaches this point of deliberate antagonistic intrusion on the rights of the other who has an equal right to possession or control. This would be especially true where a wife intentionally acts against her husband’s interest, since she would not be acting in harmony with the marital relationship from which her joint right of ownership or control is derived, but in antagonism to it.” At 843.

Even in states which authorize spousal consent, neither Mrs. Lawton’s nor Mrs. Brandon’s consent would have met the validity tests cited above.

In circumstances where a couple have joint dominion and control of a premises and one party is present and objecting while the other party has consented to a search without a warrant, the validity of the search should not hinge on the marital status of the parties. There is nothing which distinguishes the married couple from the unmarried one that has any real bearing on the validity of a consent to a warrantless search.

Certain other relationships have been found inadequate to confer authority on the consenting party. Sons may not consent for fathers. Padron v. State, 328 So.2d 216 (Fla.4th DCA 1976). Landlords may not consent for current tenants. Talavera v. State, 186 So.2d 811 (Fla.2d DCA 1966). And hotel clerks may not consent for a guest. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964).

The justification for allowing any person to consent to a search which may result in the seizure of evidence against another is the authority that person has by virtue of his sharing dominion and control over the premises. The law is clear that if the person whose possessions are the object of a search is absent from the premises, another having joint control may validly consent to the search.

The question of the validity of a warrant-less search when two parties having joint dominion and control are present, and one consents but the other objects, has been given very little consideration. Some cases dealing with consent to search in joint control situations emphasize that the party whose possessions were the object of the search was absent. Padron v. State, supra, at 271. The major United States Supreme Court cases on searches of jointly controlled property all involve fact situations in which the evidence was used against a party who was absent when consent to search was given. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); and Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969).

One federal case deals with a present, objecting party having joint control of searched premises. The other party, her brother Frank, had consented to the search. The circuit court stated:

“Assuming that Frank gave his own consent for search of the apartment, his authority, if any, to act for his sister was rescinded by her expressed protest and her demand for a search warrant.” Lucero v. Donovan, 354 F.2d 16 (9th Cir. 1965) at 21.

The United States Court of Appeal for the 7th Circuit emphasized the importance of the absence of the party against whom the search is directed. In holding that a joint occupant could validly consent to a search which resulted in the seizure of incriminating evidence against the absent party, the court pointed out that had the party been present the result may well have been different. Citing Lucero v. Donovan, supra, the court stated:

“[Ejvidence obtained in a search is inadmissible against a person having equal rights in the premises if he is present at the time of the search and does not consent . . ..” United States v. Robinson, 479 F.2d 300 (7th Cir. 1973) at 303.

Though decisions in Florida on the effect of objections made by one joint occupant to a search to which the other has consented are limited to the eases directly involved here, the courts have previously given some general guidance. The Second District Court stated:

“But when constitutional safeguards are involved, if a doubt exists as to whether the officer was reasonable in concluding that a search was justified, such a doubt must be resolved in favor of the defendant whose property was searched.” Miller v. State, 137 So.2d 21 (Fla.2d DCA 1962) at 25.

It is only reasonable that the person whose property is the object of a search should have controlling authority to refuse consent. His rights are personal to him and derive from the United States Constitution. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Though a joint occupant should have authority to consent to a search of jointly held premises if the other party is unavailable, a present, objecting party should not have his constitutional rights ignored because of a leasehold or other property interest shared with another. This is particularly true where the police are aware that the person objecting is the one whose constitutional rights are at stake.

Another issue raised by this case is whether the area searched was jointly controlled or under the exclusive control of petitioner. The basis of the validity of searches which normally would require warrants but are conducted with the subject-party’s consent is the party’s authority to permit others to examine the property which belongs to him.

“There can be no serious doubt that when a defendant gives consent, freely and voluntarily, to a search of his own property, the necessity for a search warrant is obviated, and the defendant cannot then complain of the fruits of the search.” (Emphasis supplied.) State v. Hysell, 281 So.2d 417 (Fla.2d DCA 1973) at 417.

Unless consent is given by the owner or rightful possessor of the property, a warrant must be obtained. The only exception to this consent is where consent by a joint owner has been obtained in the absence of the person whose property is the object of the search. Whether or not an area searched is under the joint dominion and control of the third party consenting has been a crucial question in some cases. These cases have generally been decided on the basis of the individual’s reasonable expectation of privacy in the area, whether others generally had access to the area, and/or whether the objects searched were the personal effects of the individual unavailable to consent.

The reasonable expectation of privacy test was established in Katz v. United States, supra. The court held that the Fourth Amendment protects people — not simply areas — and that a person’s expectation of privacy in an area is paramount to the character of the area itself. The Illinois Supreme Court invalidated the search of a son’s room since, even though his mother had access to the room to clean it and had consented to the search, the son had locked the door when he left before the search and told his mother to let no one enter. The court held:

“It is apparent from the mere fact of the precautions taken that he believed that the locked rooms would not be gone into by anyone. . . . The test cannot be made merely on the basis of the mother’s property right in the house, but rather consideration should be given to whether the totality of her actions as to the son made his expectation of privacy reasonable. The court properly found that the defendant’s mother had set aside these rooms for the defendant’s exclusive use, subject to her using the area for housekeeping purposes and for caring for his personal effects.” People v. Nunn, 55 Ill.2d 344, 304 N.E.2d 81 at 86 (1973), cert. den. at 416 U.S. 904, 94 S.Ct. 1608, 40 L.Ed.2d 108.

Whether or not others generally have access to the area searched has been a means of gauging the third party’s authority to consent to a search of the area. As seen in People v. Nunn, supra, the Illinois court did not see access for housecleaning purposes only to be sufficient to give her the joint control needed to authorize her consent. In United States ex rel. Cabey v. Mazurkiewicz, supra, in footnote 20 at 843, the court, citing numerous cases, stated:

“Thus it has been held that one who has an equal right of control or possession of premises generally does not thereby have authority to consent to a search of an area on the premises which is set aside for the exclusive use of the other.”

The right of access and use by other members of a family was crucial to a decision of the Minnesota court. In upholding a search, the court held that a parent could consent to the search of an adult son’s room under circumstances in which other family members had equal access to and use of the room. State v. Schotl, 182 N.W.2d 878 (Minn.1971) at 880.

Access has been a question in cases dealing with closet searches. In People v. Barbat, 49 Mich.App. 519, 212 N.W.2d 318 (1973) at 324, the court stated:

“The concept of common use must, of course, be examined in the light of the facts of the particular case. However, here there is no question but that either of the Bakers had full access to the closet and could have gone to it and obtained the shoes for the police.”

In upholding the search of a closet consented to by a paramour who shared the closet with the defendant for storing their belongings, the United States Court of Appeal for the 7th Circuit, stated:

“[N]or does the defendant claim exclusive dominion and control over a specific room or portion of a room or particular area of the apartment.” United States v. Robinson, supra, at 302.

Even if we were to decide that Mrs. Brandon had sufficient access to the closet to authorize her to consent to a search, it should have become apparent to the police that the objects in the closet were the personal effects of petitioner. In discussing cases authorizing a wife to consent to a search of the home in which she and her husband live, the Hawaii court stated:

“None of them goes so far as to hold that a wife in joint occupancy of the home can permit a search of her husband’s personal effects to discover jewelry hidden in a cuff link case in a bedroom bureau drawer.” State v. Evans, 45 Hawaii 622, 372 P.2d 365 (1962) at 372.

The Ohio court dealing again with a wife’s consent to search her husband’s personal effects, stated:

“With the emphasis on the wife’s rights rather than her defendant-husband’s, the rights of the husband have not disappeared but merely diminished in stature. To allow a search of his personal effects would unduly destroy the husband’s rights against unreasonable searches.” State v. McCarthy, 20 Ohio App.2d 275, 49 Ohio Ops.2d 364, 253 N.E.2d 789, 795 (1969), aff’d. 269 N.E.2d 424.

The United States Court of Appeal for the 8th Circuit assists in defining personal effects by giving a clear example of an object which is not a personal effect:

“By no stretch of the imagination can it be held that a bullet fired into a ceiling approximately a year before is ‘associated with person’ or has an ‘intimate relation to’ the person of the firer of the weapon.” Roberts v. United States, 332 F.2d 892 at 898 (8th Cir. 1964), cert. den. 380 U.S. 980, 85 S.Ct. 1344, 14 L.Ed.2d 274.

The closet searched by the police with Mrs. Brandon’s consent was easily separable from the rest of the premises. Mrs. Brandon did not have equal access to it, nor were any of her clothes or other belongings stored there. It should have been apparent to the police officers that the closet was set aside for petitioner’s use. It held his belongings, and his rights were infringed by the police in searching them without his consent.

The decision of the District Court of Appeal is quashed and the cause is remanded with instructions to reverse the judgment and sentence of the trial court.

It is so ordered.

BOYD, SUNDBERG and KARL, JJ., concur.

OVERTON, C. J., and ENGLAND, J., dissent for the reasons expressed in the district court’s opinion.

      . See Carter v. State, 199 So.2d 324 (Fla.2d DCA 1967) at 334 and 335, for a discussion of the importance of police obtaining warrants before conducting searches.


source: Caselaw Access Project

author: ADKINS, Acting Chief Justice.

license: Public Domain

text:
    Ulysses Ulice GILBERT, Petitioner, v. The STATE of Florida, Respondent.
    No. 49464.
    Supreme Court of Florida.
    March 24, 1977.

      Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for respondent.
   ADKINS, Acting Chief Justice.

By petition for certiorari, we have for review a decision of the District Court of Appeal, Third District (Gilbert v. State, 329 So.2d 339) which allegedly conflicts with a decision of this Court (State v. White, 324 So.2d 630) on the same point of law. Article V, Section 3(b)(3), Florida Constitution.

Petitioner was found guilty of aggravated assault. Upon appeal, his conviction was affirmed on the authority of Battle v. State, 292 So.2d 594 (Fla. 2d DCA 1974); Nelson v. State, 157 So.2d 96 (Fla. 3d DCA 1963); and McCullers v. State, 206 So.2d 30 (Fla. 4th DCA 1968). These cases all stand for the rule of law, that a well-founded fear of violence or imminent peril on the part of the victim is not an element of the statutory offense of aggravated assault. In State v. White, supra, this Court held that the victim’s well-founded fear that violence is imminent is an element of the statutory offense of aggravated assault, and disapproved the holdings to the contrary in Battle v. State, supra, McCullers v. State, supra, and Nelson v. State, supra. We have jurisdiction.

The decision of the District Court is quashed and the cause is remanded to that court for further consideration in light of State v. White, supra.

It is so ordered.

BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.


text:
    Mary Castlen BELOTE, Petitioner, v. STATE of Florida, Respondent.
    No. 47429.
    Supreme Court of Florida.
    March 31, 1977.

      Charles R. Trulock, Jr., Orlando, for petitioner.
    Robert L. Shevin, Atty. Gen., and C. Marie Bernard, Asst. Atty. Gen., for respondent.
   ADKINS, Justice.

By petition for writ of certiorari, we have for review a decision of the District Court of Appeal, Fourth District, reported at 312 So.2d 267, which allegedly conflicts with Kilgore v. State, 271 So.2d 148 (Fla.2d DCA 1972); Nadell v. State, 229 So.2d 592 (Fla.3d DCA 1969); and Spencer v. State, 263 So.2d 282 (Fla.1st DCA 1972). We have jurisdiction. Article V, Section 3(b)(3), Florida Constitution.

Petitioner was charged in three separate informations with possession of more than five grams of marijuana and delivery of marijuana on January 26, 1973, possession of more than five grams of marijuana on January 27,1973, and delivery of marijuana on January 27, 1973. The three cases were set for trial on the same day by separate order in each case. On April 9, 1973, the day set for trial, trial was rescheduled for April 10,1973. The afternoon of April- 9, in petitioner’s absence, the court on its own motion consolidated all three cases for trial and mailed a notice to petitioner, which petitioner did not receive until after the trial the next day. Petitioner first learned at trial on April 10, 1973, that all three cases had been consolidated, and her timely objection thereto at trial was overruled. The trial court also denied petitioner’s motion for mistrial prior to presentation of testimony on the ground that consolidation was prejudicial.

At trial petitioner introduced uncontra-dicted testimony that an undercover law enforcement agent initiated contact with petitioner and, representing himself to be a drug dealer, repeatedly solicited petitioner’s help in obtaining marijuana. There was also testimony admitted that on one occasion the agent delivered to petitioner some pills he represented as illegal drugs. Based on this testimony, petitioner requested jury instruction on the defense of entrapment, which was denied.

Petitioner was found guilty of all the charges except delivery of marijuana on January 27, and was sentenced to a total of ten years in prison. Thereafter, petitioner’s motions for new trial and to set aside adjudication of guilt were denied by the trial court. On appeal the District Court affirmed per curiam without opinion.

Petitioner raises the same two issues she raised before the District Court. First, she contends the trial court erred in consolidating all three cases for trial. Second, she argues that the trial court should have given the jury the requested instruction on entrapment. We need not reach petitioner’s second point since her first point has merit.

In Kilgore v. State, supra, the defendant was charged by separate informations with second degree murder and carrying a concealed weapon. Trial was set for the same day by separate orders. On the day of trial, without a motion by either of the parties, the court consolidated the charges for trial over the defendant’s objection. Finding error to a prejudicial degree, the District Court reversed and remanded for a new trial. The District Court found possible prejudice to the defendant as a result of consolidation in that he might be forced to testify in his own behalf on one charge, thereby subjecting himself to cross-examination on all charges, and in that he might receive fewer peremptory challenges than in separate trials. The District Court found these to be cogent and compelling reasons inveighing against consolidation over the defendant’s objection.

Respondent asserts that the District Court observed in Kilgore that the question of consolidation is a close one with wide discretion reposed in the trial court and that no compelling reasons against consolidation existed sub judice in Kilgore. Respondent also submits that the trial court did not abuse its discretion under former Fla.R.Crim.P. 3.190(k), now incorporated into Fla.R.Crim.P. 3.151, effective February 1, 1973, prior to trial sub judice. We disagree.

The facts in the instant case and in Kilgore are practically identical. The fact that Kilgore involved a murder charge is immaterial to our consideration. Petitioner was denied substantial procedural rights by consolidation over her objection on such short notice. See Meade v. State, 85 So.2d 613 (Fla.1956), 59 A.L.R.2d 835; and Johnson v. State, 222 So.2d 191 (Fla.1969).

Moreover, Rule 3.151(b), in effect at the time of trial sub judice, provides as follows:

“Two or more indictments or informa-tions charging related offenses shall be consolidated for trial on a timely motion by a defendant. The procedure thereafter shall be the same as if the prosecution were under a single indictment or information. A defendant’s failure to timely move for consolidation constitutes a waiver of his right to consolidation.” (Emphasis supplied.)

The committee note to Rule 3.151(b) further states:

“Limits motion for consolidation to defendant and provides that, defendant waives his right to consolidation by failing to file a timely motion. Under standards relating to joinder of offenses and defendants, the prosecution may avoid the necessity for consolidation by charging offenses and defendants in a single indictment or information where consolidation is permissible. . . (Emphasis supplied.)

This is a substantial departure from former Rule 3.190(k) which provided for consolidation upon motion of the prosecution or the defense. The prosecution failed to exercise its right to charge petitioner with all related offenses in a single information under Fla.R.Crim.P. 3.150, when it had an opportunity to do so, and the trial court was prohibited by Rule 3.151(b) from consolidation on its own motion at trial the charges against petitioner without petitioner’s consent. As a result, we conclude that the trial court clearly erred in consolidating petitioner’s cases for trial contrary to Kilgore and Rule 3.151(b).

The decision of the District Court is quashed and the cause is remanded with instructions that the District Court reverse the judgment and sentence, then further remand same to the trial court for a new trial.

It is so ordered.

OVERTON, C. J., and BOYD, ENGLAND and ROBERTS (Retired), JJ., concur.


author: PER CURIAM.

text:
    STATE of Florida, Petitioner, Cross-Respondent, v. Ernest SAUNDERS, Respondent, Cross-Petitioner.
    No. 47437.
    Supreme Court of Florida.
    March 31, 1977.

      Robert L. Shevin, Atty' Gen., and Richard L. Wilson, Michael M. Corin and Jeanne Dawes Schwartz, Asst. Attys. Gen., for petitioner, cross-respondent.
    Michael J. Minerva, Asst. Public Defender, for respondent, cross-petitioner.
   PER CURIAM.

The Petition for Writ of Certiorari reflected probable jurisdiction in this Court. We issued the writ and have heard argument of the parties. After hearing argument and upon further consideration of the matter, we have determined that the Court is without jurisdiction. Therefore, the writ must be and is hereby discharged, and the Petition for Writ of Certiorari is dismissed.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, SUNDBERG, HATCHETT and ROBERTS (Retired), JJ., concur.

ENGLAND, J., dissents.


author: SUNDBERG, Justice.

text:
    Harrop B. PHILLIPS and Anor R. Phillips, d/b/a A & H Industrial Park, Appellants, v. GUIN & HUNT, INC., Appellee.
    No. 49358.
    Supreme Court of Florida.
    March 31, 1977.

      Byron R. Carter, Orlando, for appellants.
    James R. Monroe and Jeffry R. Jontz of Young, Turnbull & Linscott, Orlando, for appellee.
   SUNDBERG, Justice.

This cause is before us to review an order of the Orange' County Circuit Court in which that court acting in its appellate capacity passed on the constitutional validity of Chapter 83, Florida Statutes. Jurisdiction vests in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution.

Appellants/landlords filed a distress for rent claim under Section 83.11, Florida Statutes (1975), along with an affidavit in support of the claim. They posted a distress bond for twice the value of the property sought to be levied upon. In accordance with Sections 83.12 and 83.13, Florida Statutes, a deputy clerk of Orange County, Florida, issued a distress writ without a judicial order. The Orange County Sheriff’s Department then executed the writ by posting a copy on the door of the premises which appellee, a Florida corporation, leased from appellants. The property was used to store materials and was infrequently visited by appellee. Appellee was not personally served with any of the aforementioned papers although appellants knew its principal place of business was in Pensacola, Florida. When appellee failed to answer the complaint within 20 days after posting of the writ, default was entered, and a writ of execution was issued. Subsequently, appellee’s motions to stay execution and to set aside default were denied, as was its motion for rehearing. Appellee then appealed the entry of the final judgment and the denial of post-judgment motions to the Orange County Circuit Court. That court reversed the trial court’s decision and held that Sections 83.08, 83.09, and 83.11-19, Florida Statutes, were unconstitutional, relying on the United States Supreme Court decision in North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975).

We are now asked to consider whether that court erred in declaring sections of Chapter 83 unconstitutional as violative of the due process clause in the United States Constitution. In light of recent judicial treatment regarding prejudgment procedures, we find that the circuit court was correct in ruling that Sections 83.11, 83.12, and 83.14-19, Florida Statutes, failed to pass constitutional muster. However, we find Section 83.13 constitutional on its face though unconstitutional as applied in the court below.

American society relies on judicial machinery for an orderly and systematic settlement of disputes. Individual rights and duties must be determined in such an objective manner or their resolution would produce anarchy, riot, and Darwinian survival. Recognizing such possibilities, the framers of the Constitution cloaked the document with notions of due process. Without this guarantee of due process to safeguard individual rights, the state’s omniscient power to resolve conflict would be unbridled. Only through a guarded due process clause, whose meaning is continually refined to satisfy contemporary needs, could we aspire to a society which is both ordered and just.

From its early history, the American judicial system recognized that before property rights can be affected by judicial powers, the owner of those rights is entitled to be heard. Rees v. Watertown, 86 U.S. (19 Wall.) 107, 22 L.Ed. 72 (1874); Ray v. Norseworthy, 90 U.S. (23 Wall.) 128, 23 L.Ed. 116 (1875); Windsor v. McVeigh, 93 U.S. (3 Otto) 274, 23 L.Ed. 914 (1876); Central of Georgia R.R. v. Wright, 207 U.S. 127, 28 S.Ct. 47, 52 L.Ed. 134 (1907). “Common justice requires that no man shall be condemned in his person or property without notice and an opportunity to make a defense.” Baldwin v. Hale, 68 U.S. (1 Wall.) 233, 17 L.Ed. 531 (1864).

Although this principle was embodied in our early case law, the courts later upheld the interests of creditors who demanded quick and effective remedies. With deference toward these interests, the United States Supreme Court frequently upheld prejudgment statutes. Coffin Bros. v. Bennett, 277 U.S. 29, 48 S.Ct. 422, 72 L.Ed. 768 (1928); Ownbey v. Morgan, 256 U.S. 94, 41 S.Ct. 433, 65 L.Ed. 837 (1921).

As the American economy continued to expand and depend on a massive and complicated system of credit, the courts began to reevaluate the rights and duties of interested parties. In Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), the court studied the constitutionality of a Wisconsin statute that provided for prejudgment garnishment of-wages. Garnishment under the Wisconsin law involved: (a) a request by the garnish- or’s attorney; (b) made to a court clerk; (c) resulting in a summons being issued; (d) which the garnishor’s attorney served on the garnishee; and (e) which required notice to be given to the debtor within 10 days. The debtor could unfreeze garnished wages by posting bond. Wis.Stat. § 267.01 et seq. (1957). The court held the Wisconsin statute unconstitutional because it failed to provide for notice and hearing prior to the taking. The court, however, specifically limited its holding to the garnishment of wages. Sniadach, supra, at 340, 89 S.Ct. 1820.

This limitation was shortlived because Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), was forthcoming. The Fuentes Court stated unequivocally that an opportunity for a hearing is required prior to the taking of any property right. Florida and Pennsylvania laws permitting replevin upon ex parte application to a court clerk and filing of bond for double the value of the property to be seized were invalidated. The defendant could post his own security bond for double the value within three days of the writ’s execution and thereby regain possession of the property. If he failed to follow such procedure, the property was transferred to the party seeking the writ. The defendant was not entitled to challenge the issuance of the writ. Denouncing both statutes for failing to balance the competing interests of the parties, the Court announced the broad rule that, except in extraordinary situations, a defendant must have notice and opportunity for a hearing before he may be deprived of any significant property interest. Fuentes allowed postponement of the required notice and hearing under these conditions: (1) the deprivation must be directly necessary to secure an important governmental or general public interest; (2) prompt action must be imperative; (3) the state must strictly control its exercise of legitimate force. The Court noted that such circumstances were highly unusual. Fuentes, supra, at 90, 92 S.Ct. 1983.

The lesson of Fuentes is clear. A deprivation of any significant property interest will come under constitutional scrutiny. The Fuentes case is not limited to replevin, but its rationale encompasses any procedure which allows for a deviation from the constitutional requirements of the due process notion. The Court left to subsequent cases the task of clarifying the mechanics for the hearing mandated.

In Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), and North Georgia Finishing, Inc. v. Di-Chem, Inc., supra, the Court elucidated the hearing requirement. The Supreme Court, in Mitchell, upheld the constitutionality of Louisiana’s sequestration procedure. Balancing the debtor’s interest in the sequestered goods with the creditor’s interest in protecting his security, the opinion concluded that the procedure constitutionally protects both. The Court found that a proper balancing occurs when (1) a judge is satisfied that the writ should issue, (2) the party seeking to invoke state action posts a bond to guarantee the interests of the creditor, and (3) without undue delay, there is a full hearing as to the right of possession. The Court determined that an opportunity for a hearing need not precede any actual deprivation of property, distinguishing Sniadach as dealing with a specialized type of property and applying to cases where the creditor had no prior interest in the property.

In North Georgia Finishing, Inc. v. Di-Chem, Inc., supra, the Supreme Court applied Mitchell in striking down Georgia’s garnishment statute as applied to commercial accounts. The opinion reiterated the Mitchell factors: the need for a judge; allegation of specific facts; the requirement of an immediate hearing to dissolve a writ; and a prompt hearing on the merits, though not necessarily a pre-deprivation hearing. North Georgia Finishing, supra, 419 U.S. at 606-607, 95 S.Ct. 719. Thus, the Court made a limited return to balancing with respect to the timing of proceedings.

A cumulative analysis of the cases noted suggests that due process safeguards will vest anytime there is a deprivation of any significant property interest. Whether a particular state statute providing for summary deprivation will satisfy those constitutional safeguards is to be judged against the requirements enunciated in Mitchell and North Georgia, Finishing.

This Court has not been insensitive to the dictates of the United States Supreme Court. Recently, in Unique Caterers, Inc. v. Rudy’s Farm Company, Fla., 338 So.2d 1067, we held Chapter 76, Florida Statutes, unconstitutional as violative of due process to the extent it provides for attachment prior to judgment without procedural safeguards mentioned therein. Today, we find that Sections 83.11, 83.12, and 83.14-.19, Florida Statutes, are unconstitutional because they fail to comport with contemporary concepts of due process. Under the standards articulated in Mitchell and North Georgia Finishing, the statute is inadequate on its face because: (1) it does not provide the right to a hearing promptly after the issuance of the writ nor even before the property is levied upon; and (2) it does not provide for issuance of the writ by a judicial officer rather than a clerk of court or, in lieu thereof, by a clerk who makes an independent factual determination that the statute has been complied with.

The statute is also unconstitutional as applied by the county court because the appellee did not receive service of process upon its person when it could be found within the state of Florida. This service was required before proceedings culminating in judicial sale of appellee’s property could be maintained. The right to be heard has little value if one is not informed that a matter is pending. Due process requires that interested parties by apprised of the pendency of an action through a procedure reasonably calculated to convey the required information. Mullane v. Cen tral Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1947).

Section 83.13, Florida Statutes, provides for service by posting “if the defendant cannot be found.” In the instant case, the county court approved constructive service by levy upon the property even though the defendant “[could have been] found” within the state of Florida to effect personal service of the writ. Appellee maintains that the phrase “if the defendant cannot be found” refers to found within the county where the property is located. It then concludes that the procedure embodied in Section 83.13, Florida Statutes, is unconstitutional vel non because it condones constructive service where the defendant may be within the state of Florida and susceptible to personal service. We do not accept such interpretation when the statutory section can just as reasonably be construed to authorize constructive service only when the defendant, through diligent search and inquiry, cannot be found within the state of Florida, and that fact is made to appear in the same manner as required for constructive service under Chapter 49, Florida Statutes. If the statute is not so interpreted, it does not comply with the constitutional tests enunciated by the United States Supreme Court in Fuentes-North Georgia Finishing line of cases. However, such a construction is mandated because it is axiomatic that courts will construe a statute, if at all possible, to uphold its constitutionality. City of Dunedin v. E. W. Bense, 90 So.2d 300, 303 (Fla.1956); Knight & Wall Co. v. Bryant, 178 So.2d 5 (Fla.1965).

In the case sub judice, appellee is a Florida corporation with a resident agent. Appellants knew the location of appellee’s business but failed to have it served. Due process clearly dictated personal service upon the appellee.

Assuming the defendant cannot be found within the state of Florida, Section 83.13, Florida Statutes, states that “the levy on the property suffices as service on him.” In Grisson v. Dade County, 293 So.2d 59 (Fla.1974), we suggested that the Legislature could constitutionally authorize alternative procedures for giving notice where personal service was impossible. See also Sheppard v. Sheppard, 329 So.2d 1 (Fla.1976). The constitutionality of the Legislature’s methodology depends on whether it is reasonably calculated to give notice of the pending action. Mullane v. Central Hanover Bank & Trust Co., supra. We hold that it does. In Sheppard v. Sheppard, supra, we stated:

“Publication of notice in a newspaper may be no more effective than publication by posted notice, particularly in less populated areas of the State where gossip induced by the posting might possibly bring the matter to the defendant’s attention.” Id. at 2-3.

Here the levy on the property is more than likely to guarantee actual notice and is reasonably calculated to achieve the intended purpose.

While this alternative procedure is constitutionally permissible, implicit in the statute is the notion that posting can only be employed where the plaintiff has given a sworn statement alleging service upon the person to be impossible. This procedure is required by Section 49.041, Florida Statutes, when service by publication is substituted for personal service of process. As service by posting is merely an alternative to serve by publication, the necessity of filing an affidavit is still viable.

Were the service of process deficiency described above the only impediment in our distress statute, the construction we have placed on Section 83.13, Florida Statutes, would save the statute. However, under United States Supreme Court guidelines, it is clear that the deprived party has a right to a hearing. The statute in question provides no such right. We read North Georgia Finishing, supra, and Mitchell, supra, to require a hearing either before the alleged taking or promptly thereafter. In Unique Caterers v. Rudy’s Farm Co., supra, we found Chapter 76 constitutionally deficient because it did not require an immediate post-seizure hearing. Rather, it simply kept the court open at anytime to hear motions for dissolution. Unique Caterers, supra, 338 So.2d at 1071. Under Chapter 83, Florida Statutes, even this safeguard is not available.

Finally, it is constitutionally imperative that a writ issue only after an impartial factual determination is made concerning the existence of the essential elements necessary for issuance of the writ. Consequently, a writ must be issued by a judicial officer based upon a prima facie showing rather than pro forma by the clerk of court, unless the initial pleading is made under oath to a clerk who makes an independent factual determination that the requirements of the statute have been complied with. Only then can the individual have his use and enjoyment of property protected from arbitrary encroachment. Under Section 83.12, Florida Statutes, the distress writ is issued by the clerk based upon an unverified complaint without the necessity of a preliminary factual determination as to the validity of the claim.

For the reasons stated herein, the judgment of the circuit court declaring Sections 83.11, 83.12 and 83.14-19, Florida Statutes, unconstitutional is affirmed. We find no constitutional violation in Sections 83.-08-.09, Florida Statutes, which merely create a lien, and we find Section 83.13 as herein construed unconstitutional only as applied to the appellee in this case. The cause is remanded to the trial court for disposition in accordance with the decision of this Court.

It is so ordered.

OVERTON, C. J., ADKINS, BOYD, ENGLAND, HATCHETT and DREW (RETIRED), JJ., concur.

      . It is not clear that the circuit court “initially and directly [passed] on the validity of a state statute” within the purview of Art. V, § 3(b)(1), in that the issue of the constitutional validity of Ch. 83, Fla.Stat., was raised by appellee on motion for rehearing in the county court. However, if the county court did, in fact, initially pass upon the constitutional validity of the statute in question, appeal would lie in this Court from the ruling of that court, so we deem the jurisdictional issue to be moot.

      . Other courts have shown discomfort with prejudgment statutes. A United States District Court in the Middle District of Florida, in the case of MacQueen v. Lambert, 348 F.Supp. 1334 (M.D., Fla.1972), held unconstitutional a Florida statute which permitted the landlord to summarily dispossess the tenant and assert a lien against the tenant’s property for nonpayment of rent without notice. §§ 713.67-.69, Fla.Stat. A federal court in Pennsylvania recently found that state’s distress for rent statute unconstitutional because it failed to satisfy notions of due process. That statute was similar to Florida’s. In Hall v. Garson, 468 F.2d 845 (5th Cir. 1972), the Fifth Circuit declared unconstitutional a Texas statute giving the landlord a lien on personal goods of tenants and authorizing the landlord to enforce a lien by preemptory seizure of property. The statute violated due process insofar as it denied the right to be heard prior to chattels being taken from their possessor.
      In Adams v. Joseph F. Sanson Investment Co., 376 F.Supp. 61 (Nev.1974), a landlord lien statute of Nevada was declared to be unconstitutional on due process grounds insofar as it fails to allow for a hearing prior to the seizure of one’s personal property.

      . § 83.12, Fla.Stat., provides as follows:

        “Distress for rent; form of writ. — On filing the complaint, the clerk shall issue a distress writ commanding the sheriff to levy on property liable to be distrained for rent or advances, and to collect the amount claimed, or the value thereof, and to summon defendant to answer the complaint. Before the writ issues, plaintiff, his agent or attorney, shall file a bond with surety to be approved by the clerk payable to defendant in at least double the sum demanded, or if property, in double the value of the property sought to be levied on, conditioned to pay all costs and damages which defendant sustains in consequence of plaintiff’s improperly suing out the distress.”

      .§ 83.13, Fla.Stat., provides as follows:

        “Distress for rent; levy of writ. — The officer shall execute the writ by service on defendant and by levy on property distrainable for rent or advances, if found in his jurisdiction. If the property is not so found but is in another jurisdiction, he shall deliver the writ to the proper officer in the other jurisdiction and the other officer shall execute the writ by levying on said property and delivering it to the officer of the court in which the action is pending to be disposed of according to law unless he is ordered by the court from which the writ emanated to hold the property and dispose of it in his jurisdiction according to law. If defendant cannot be found, the levy on the property suffices as service on him.”

      . Id.

      . Id.

      .In Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972), a city charter provision authorized municipal court clerks to issue arrest warrants for breach of municipal ordinances. The United States Supreme Court held this provision to comport with the requirements of the Fourth Amendment that warrants be issued by a neutral and detached magistrate who must be capable of determining whether probable cause exists for issuance of the warrant. The clerks were qualified to make this determination because they worked within the judicial branch under the supervision of municipal court judges. If a clerk can make an initial determination as to probable cause in a criminal proceeding, it is certainly constitutionally permissible for him to make an initial determination regarding the issuance of a distress writ.

      . See note 3, supra.

      . In the instant cause, appellants filed an affidavit in support of their claim. The statute is nevertheless deficient on its face in that it makes no provision for a sworn statement before the issuance of a distress writ. We note that an affidavit was an express requirement of the statute’s predecessor. In amending the statute in 1967 to read in its present form, the Legislature eliminated the necessity of an affidavit. After 1967: Ch. 67-254, § 34, Laws of Florida. In its place, they substituted only the requirement of an unverified complaint.


author: ENGLAND, Justice.

text:
    Willard D. ALBRITTON, etc., Appellant, v. GENERAL PORTLAND CEMENT CO., etc., Appellee.
    No. 49938.
    Supreme Court of Florida.
    March 31, 1977.

      Lee S. Damsker, Gordon & Maney, Tampa, for appellant.
    Charles H. Ross, Tampa, for appellee.
   ENGLAND, Justice.

By direct appeal pursuant to Article V, Section 3(b)(1) of the Florida Constitution, we have before us an order of the Hillsbor-ough County Court holding Section 55.145, Florida Statutes (1975), unconstitutional. In relevant part that statute provides:

“55.145 Discharge of judgments in bankruptcy.
At any time after (1) year has elapsed since a bankrupt . . . was discharged from his debts, pursuant to the act of congress relating to bankruptcy, the bankrupt . . may petition the court in which the judgment was rendered ... for an order to cancel and discharge such judgment. If it appears upon the hearing that the bankrupt . . . has been discharged from the payment of that judgment or of the debt upon which it was recovered, the court shall enter an order canceling and discharging said judgment. The order of cancellation and discharge shall have the same effect as a satisfaction of judgment . . ..”

On May 22, 1967, General Portland Cement Company (Portland) obtained in Hills-borough County a judgment against Willard Albritton in the amount of $602.17. Two days later a certified copy of the judgment was filed with the Clerk of the Circuit Court of Lee County. By operation of Section 55.10, Florida Statutes (1965), the judgment then constituted a lien on real property owned by Albritton in Lee County except, of course, to the extent of the homestead exemption mandated by Article X of the 1885 Florida Constitution then in effect. On March 13,1968, Albritton filed for bankruptcy, listing the judgment debt to Portland among the claims of unsecured creditors. He received his discharge in bankruptcy on August 16, 1968.

Section 55.145 was enacted by the Florida Legislature in 1970. On March 29, 1975, Albritton petitioned the county court under the statute in order to discharge Portland’s judgment. The court denied Albritton’s petition and declared Section 55.145 unconstitutional. The court held that the statute would deprive Portland of due process of law in that it purported to affect pre-exist-ing liens, impaired the obligation of Portland’s contract, and constituted an ex post facto law. We disagree on all counts and reverse.

Section 55.145 was enacted to alleviate unfair burdens previously placed on bankrupts by the laws of this state. A discharge in bankruptcy releases the bankrupt from personal liability for a judgment, but it does not affect a lien which arose from the judgment prior to bankruptcy and which attached to property remaining in the hands of the bankrupt as exempt from the bankruptcy act. Liens so unaffected remain enforceable to the extent that the laws of the state wherein they arose permit, but the judgment debt voided in bankruptcy cannot constitute a lien on after-acquired property.

The judgment which Portland has recorded in the official court records of Lee County is enforceable only against the narrow range of pre-bankruptcy property which Albritton may have possessed before his bankruptcy and which was treated as exempt in the bankruptcy proceeding. The recordation of Portland’s judgment, however, places a continuing cloud on Al-britton’s title to Lee County real property, even though the judgment does not constitute an enforceable encumbrance against discharged property or property acquired after March 13, 1968. The courts of states having like statutes have held that the discharge of a judgment will not affect a judgment lien which survives the bankruptcy. Section 55.145, like its counterparts in other states, was designed to allow discharged bankrupts to “clear up the record by making it show upon its face that the judgment no longer attaches as a lien on real estate subsequently acquired and constitutes no personal liability against the debtor . . ..”

Nothing in Section 55.145 authorizes the invalidation of liens which survive bankruptcy, to the extent there existed property subject to lien when the petition was filed. Consequently, no constitutional issues relative to its operation are presented.

The judgment of the county court is reversed, and this case is remanded with instructions to proceed on Albritton’s petition. If it appears that there is no real property to which a lien could have attached prior to bankruptcy, Albritton is entitled to the benefit of the statute and a record cancellation of Portland’s judgment. If property is present in Lee County to which Portland’s lien attached prior to bankruptcy and as to which title was not cleared to Albritton in that proceeding, the cancellation should be limited accordingly.

It is so ordered.

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

      . The record before us is unclear as to whether the judgment also was filed in any other counties.

      . Ch. 70-12, Laws of Florida.

      . 1A Collier on Bankruptcy § 17.05 (14th ed. rev. 1976).

      . Jaubert Bros. Inc. v. Landry, 15 So.2d 158 (La.App.1943); Collier, note 3, at § 17.29.

      . See Straton v. New, 283 U.S. 318, 51 S.Ct. 465, 75 L.Ed. 1060 (1931); Matter of Continental Midway Corp., 185 F.Supp. 867 (D.Md.1960).

      . Collier, note 3, at § 17.30.

      . The record before us does not indicate whether Portland in fact has a lien on any property owned by Albritton.

      . See, for example, John Leslie Paper Co. v. Wheeler, 23 N.D. 477, 137 N.W. 412 (1912). See also, Collier, note 3, at § 17.30.

      . Olsen v. Nelson, 125 Minn. 286, 146 N.W. 1097, 1099 (1914).

      . See Olsen v. Nelson, note 9 at 1099.


author: BOYD, Justice.

text:
    William R. MORGAN, Jr., Appellant, v. Al COOK, etc., et al., Appellees.
    No. 50190.
    Supreme Court of Florida.
    March 31, 1977.
    Richard L. Jorandby, Public Defender, and Henry Prettyman, Special Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Harry M. Hipler, Asst. Atty. Gen., for appellees.
   BOYD, Justice.

In February of 1973, while in state custody on a robbery conviction, William R. Morgan, Jr. escaped. Approximately ten months later he was arrested. Under the authority of Section 944.28(1), Florida Statutes (1973), the Department of Offender Rehabilitation declared all Morgan’s earned gain time and any extra gain time allowed him to be forfeited. Morgan petitioned the Circuit Court of the Fifteenth Judicial Circuit for a writ of habeas corpus, attacking the constitutionality of Section 944.28(1), Florida Statutes (1973). The Circuit Court denied the petition. Morgan’s appeal to the District Court of Appeal, Fourth District, was transferred here. We have jurisdiction.

For the reasons stated in Rankin v. Wainwright, 351 F.Supp. 1306 (M.D.Fla.1972), the statute is constitutional. The Circuit Court’s denial of the petition for a writ of habeas corpus is affirmed.

It is so ordered.

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

      . “944.28 Forfeiture of gain time and right to earn gain time in the future. — (1) When a prisoner escapes or a conditional pardon or parole granted to him by the board of pardons or the parole and probation commission is revoked, the division shall, without notice or hearing, declare a forfeiture of all gain time earned and extra gain time allowed such prisoner, if any, prior to such escape or his release under such conditional pardon or parole, as the case may be.” We note the statute has been amended by Chapter 74-112, Laws of Florida, and as amended is not subject to Morgan’s objections.

      . Art. V, § 3(b)(1), Fla.Const.


text:
    Frank MOORE and Gertrude R. Moore, his wife, Appellants, v. SKY REALTY, INC., a Florida Corporation, Appellee.
    No. 75-1444.
    District Court of Appeal of Florida, Third District.
    March 15, 1977.
    Gertrude Moore, in pro. per.
    Emanuel Sponder, West Hollywood, for appellee.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

This is an appeal from a final judgment awarding a real estate brokerage commission.

On March 4, 1974 appellant Gertrude Moore and her husband executed a multiple listing agreement whereby they agreed to pay Sky Realty, Inc. a 7V2% real estate commission if it could procure a purchaser to buy their home for $55,000. On May 9 Sky Realty procured Mr. and Mrs. Spital-nick who made an offer of $53,000. The Moores turned it down. On the next morning (May 10) the Spitalnicks went to the office of Sky Realty and made an offer of $55,000 cash. This offer was immediately communicated to the Moores. They refused to accept and sent a telegram dated May 11 instructing Sky Realty to take their house off the market. Sky Realty then sued for the 71/2% commission and the cause proceeded to a non-jury trial. The judge found for Sky Realty and entered a final judgment in its favor for $4,125 plus interest.

Although appellant raises nine points on appeal, she has failed to present to this court a transcript of testimony. This court is required to affirm where an appellant fails to bring up the transcript of testimony given at a final hearing and that testimony forms the major evidentiary support for the trial court’s findings and ruling. Veterans Loan Authority v. Danzo, 210 So.2d 461 (Fla. 3d DCA 1968).

Affirmed.