author: SUNDBERG, Justice. ADKINS, Justice,

text:
    John Roger LAIRD and Lorraine A. Coffey, Appellants, v. STATE of Florida, Appellee.
    No. 48889.
    Supreme Court of Florida.
    Feb. 10, 1977.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Marsha G. Madorsky, Asst. Atty. Gen., for appellee.
   SUNDBERG, Justice.

This is an appeal from a judgment entered in the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County. We have jurisdiction under Article V, Section 3(b)(1), Florida Constitution.

Appellants John Laird and Lorraine Coffey were charged by information with one count of possession of cannabis in excess of five grams and one count of possessing paraphernalia. After pleading not guilty, appellants filed a motion to dismiss the information on the grounds that Section 893.13(l)(e), Florida Statutes, and related portions of Chapter 893, proscribing possession of marijuana, are unconstitutional as violative of the right to privacy. Appellants urged that the statutory provision, by including the private, noncommercial possession and/or use of marijuana in a private home, did not bear a substantial relationship to a proper governmental purpose.

After denial of their motion to dismiss, appellants moved to withdraw their pleas of not guilty and enter pleas of nolo conten-dere to the possession count, while reserving the right to appeal the denial of the motion to dismiss. Appellant Laird admitted having the marijuana in his apartment on the day in question, and appellant Coffey admitted being present at the apartment. The trial court accepted appellants’ pleas, withheld adjudication, and placed Laird and Coffey on two and one-half years’ probation. The State entered a nolle prosequi as to the paraphernalia possession charge.

Notice of appeal to the District Court of Appeal, Fourth District, was timely filed, but on appellants’ motion, the cause was transferred to this Court by order of the District Court dated February 4, 1976.

Appellants see this case — which raises the narrow issue of whether the State can prohibit private possession of marijuana in the home — as a clash between a basic constitutional right to privacy and the State’s police power. It is urged upon us that appellants enjoy the constitutional right to smoke marijuana in the privacy of Laird’s domicile. The reasoning of cases such as Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), is said to be applicable to the instant controversy. Appellants argue that a decision of the Supreme Court of Alaska, Ravin v. State, 537 P.2d 494 (Alaska 1975), provides persuasive authority for the position which they advance.

For the reasons discussed herein we are unable to accept appellants’ contention. We reject the notion that smoking marijuana at home is the type of conduct protected by the constitutional right to privacy and, on this record, affirm the trial court.

In Griswold v. Connecticut, supra, the United States Supreme Court determined that a Connecticut statute which made the use of contraceptives a criminal offense was invalid as an unconstitutional invasion of the right to privacy of married persons. Mr. Justice Douglas, writing for the majority, found “that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” 381 U.S. at 484, 85 S.Ct. at 1681. The marital relationship was held to lie “within the zone of privacy created by several fundamental guarantees.” Id. at 485, 85 S.Ct. at 1682. Justice Douglas placed heavy emphasis upon the marital relationship of the Gris-wold parties:

“We deal with a right of privacy older than the Bill of Rights- — older than our political parties, older than our school systems. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Id. at 486, 85 S.Ct. at 1682.

Griswold’s protection of the privacy of the marital relationship was extended to certain intimate aspects of the lives of single persons as well in Eisenstadt v. Baird, supra, and Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Eisenstadt invalidated a Massachusetts statute which made it a crime to sell, lend, or give away any contraceptive drug, medicine, instrument, or article. The statute permitted physicians to administer or prescribe contraceptive drugs or articles for married persons and allowed pharmacists to fill prescriptions for such items for married persons. The Court determined that the Massachusetts law could be upheld neither as a deterrent to fornication nor as a health measure nor as a prohibition on contraception. The third justification was dismissed on privacy grounds:

If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. ...” 405 U.S. at 453, 92 S.Ct. at 1038.

In Roe v. Wade, supra, an unmarried pregnant woman who wished to undergo an abortion sought a declaratory judgment that the Texas criminal abortion statutes, which proscribed all abortions except those procured or attempted by medical advice for the purpose of saving the life of the mother, were unconstitutional. The Supreme Court held, inter alia, that the right to privacy encompasses a woman’s decision whether or not to terminate her pregnancy, but that a woman’s right to an abortion is not absolute and may to some extent be limited by the State’s interest in safeguarding her health, in maintaining proper medical standards, and protecting potential human life. After listing some decisions in which the Court or individual justices had discerned the existence of the constitutional right to privacy, Mr. Justice Blackmun, writing for the majority, declared:

“. . . These decisions make it clear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage [citation omitted]; procreation [citation omitted]; contraception [citation omitted]; family relationships [citation omitted]; and child rearing and education [citations omitted].” 410 U.S. at 152-153, 93 S.Ct. at 726.

This statement of the scope of the constitutional right to privacy remains the definitive statement of the law in this area.

Appellants argue that another United States Supreme Court decision, Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), controls the instant controversy. In Stanley, the Court reversed a conviction for possession of obscene matter in violation of a Georgia statute. The appellant in Stanley merely owned certain allegedly obscene films for showing in his own home; these films were seized from his residence incident to a search undertaken to find evidence of bookmaking activities. It is true that, in reversing the defendant’s conviction, the Court found the right to privacy to exist in a context outside of the intimate personal relationships at issue in Griswold, Eisenstadt, and Roe v. Wade, supra. But in so doing the Court, speaking through Justice Marshall, laid special emphasis on Stanley’s First Amendment rights:

. . [Appellant] is asserting the right to read or observe what he pleases — the right to satisfy his intellectual and emotional needs in the privacy of his own home. He is asserting the right to be free from state inquiry into the contents of his library. Georgia contends that appellant does not have these rights, that there are certain types of materials that the individual may not read or even possess. Georgia justifies this assertion by arguing that the films in the present case are obscene. But we think that mere categorization of these films as ‘obscene’ is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.” 394 U.S. at 565, 89 S.Ct. at 1248.

And in a footnote concerning contraband articles, the Court carefully limited its holding:

“What we have said in no way infringes upon the power of the State or Federal Government to make possession of other items, such as narcotics, firearms, or stolen goods, a crime. Our holding in the present case turns upon the Georgia statute’s infringement of fundamental liberties protected by the First and Fourteenth Amendments. No First Amendment rights are involved in most statutes making mere possession criminal.” 394 U.S. at 567, n. 11, 89 S.Ct. at 1249.

In two recent cases the United States Supreme Court has declined to extend further the scope of the constitutional right to privacy. The Court recently affirmed the constitutionality of Virginia’s anti-sodomy statute even as applied to two consenting adult male homosexuals. Doe v. Commonwealth’s Attorney, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976), aff’g, 403 F.Supp. 1199 (E.D.Va.1975). In Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), respondent’s name and photograph were included in a flier of “active shoplifters,” after he had been arrested on a shoplifting charge in Louisville, Kentucky. After that charge had been dismissed, Davis brought an action against petitioner police chiefs, who had distributed the flier to area merchants, alleging that petitioners’ action under color of law deprived him of his constitutional rights. The Supreme Court, in denying Davis relief held, inter alia, that his contention that the defamatory flier deprived him of his constitutional right to privacy was meritless. Mr. Justice Rehnquist, writing for the majority, suggested:

“. . . [0]ur other ‘right of privacy’ cases, while defying categorical description, deal generally with substantive aspects of the Fourteenth Amendment. In Roe the Court pointed out that the personal rights found in this guarantee of personal privacy must be limited to those which are ‘fundamental’ or ‘implicit in the concept of ordered liberty’ as described in Palko v. Connecticut, 301 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937). The activities detailed as being within this definition were ones very different from that for which respondent claims constitutional protection — matters relating to marriage, procreation, contraception, family relationships, and child rearing and education. In these areas it has been held that there are limitations on the States’ power to substantively regulate conduct.” 424 U.S. at 713, 96 S.Ct. at 1166.

Thus, as indicated ante pp. 963-964, Justice Blackmun’s articulation in Roe v. Wade of the limited scope of the right to privacy remains the current state of the law.

The foregoing discussion should suggest the inappositeness of the leading Supreme Court cases on the right to privacy and the case we decide today. Here we do not face the intimacies of the marital relationship or of procreation. There is no clear First Amendment issue posed by the question of whether appellant may legally smoke marijuana in his own home. Thus we are not persuaded by the Alaska Supreme Court’s resolution of this issue in Ravin v. State, supra. We note further that the Ravin court in part based its decision on state constitutional provisions which have no analogue in Florida. 537 P.2d at 500-504.

Appellant has presented to this Court a sampling of scientific authority to the effect that marijuana poses no significant public health problem. The State, recognizing the limitations of the procedural posture in which this cause reaches us, has made no effort to counter this material. In a proper case appellate courts may take judicial notice of such expert opinions, and, as noted by appellants, scientific authority on the subject of marijuana’s harmfulness has been discussed in several such decisions. See, e. g., Ravin, supra; State v. Kantner, 53 Haw. 327, 493 P.2d 306 (1972); People v. Sinclair, 387 Mich. 91, 194 N.W.2d 878 (1972).

This Court is ill-suited to make such a de novo judgment in a case, such as this one, which comes to us on a denial of a motion to dismiss. The record before us is simply inadequate to support a determination of whether the health hazards of smoking marijuana justify its proscription to the general public. None of the parties really argued whether the legislature lacks a “rational basis” for its decision to ban private possession of cannabis. (Since we have determined that there is no fundamental right to smoke marijuana, the test becomes whether there is a “rational basis” for outlawing such an activity as opposed to a “compelling state interest” in the subject matter of the legislation.) Thus in affirming the trial court, we do not foreclose the possibility of making such a determination on a properly-developed record wherein both sides have had an opportunity to present evidence of competing expert authorities before an impartial tribunal.

The judgments are affirmed.

ENGLAND, HATCHETT and DREW (Retired), JJ., concur.

OVERTON, C. J., and BOYD, J., concur in result only.

ADKINS, J., dissenting with an opinion.

ADKINS, Justice,

dissenting.

I respectfully dissent.

A constitutional right to privacy has been clearly established by the United States Supreme Court in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). In Stanley v. Georgia, supra, this right was one basis on which the court allowed private possession of materials which the State could properly prohibit an individual from selling. The basis of the regulation considered by the court in Stanley was the exercise of the State’s police power to protect the public morals and public decency. The court held that, although exercising the police power to these ends was proper, such power could not be validly extended to punishing private possession of obscene materials. The First Amendment rights of the individual were a second basis for the decision in Stanley; however, allowing regulation of these rights in public while condemning such regulation in private indicates that the right to privacy was the paramount justification for the decision.

No other constitutional rights were coupled with the right to privacy in the other cases cited above. They are clearly applicable to this ease since they establish the individual’s right to privacy with regard to birth control and abortion, which directly affect the individual’s control over his or her bodily functions.

Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), establishes that the court may determine and take judicial notice of the facts which form the basis for legislation. The scientific information provided by appellant and discussed in Ravin v. State, 537 P.2d 494 (Alaska 1975); State v. Kantner, 53 Haw. 327, 493 P.2d 306 (1972); and People v. Sinclair, 387 Mich. 91, 194 N.W.2d 878 (1972), shows that the existence of the alleged harmful effects of marijuana have not been scientifically proven. It is questionable whether marijuana causes physical or moral damage, while the harmful effects of legal recreational drugs — alcohol and tobacco — have been well documented.

As in Stanley , however, the private possession of an object may be acceptable while the sale or use in public of the same object may not. The right to privacy is the only fundamental right which can reasonably be seen as infringed by the marijuana laws. No justification is shown for invalidating the statutes as they relate to sale. The regulation of this substance other than in the home is clearly a proper exercise of the State’s police power.

      . The Court had just distinguished Roe v. Wade, supra; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

      . Art. I, § 22, Alas.Const., reads:
      “The right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section.”
      See also Justice Boochever’s concurring opinion in Ravin, supra, at 513-516.

      . “Left to another day is the question of regulation or prohibition of marijuana possession or sale in public and the issue of denial of equal protection, as more harmful recreational drugs [alcohol and tobacco] are not similarly prohibited.” Brief of Appellant, pp. 7-8.

      . For a critical discussion of this two-tier model, see Massachusetts Bd. of Retirement v. Murgia, - U.S. -, 96 S.Ct. 2562, 2568-2573, 49 L.Ed.2d 520 (Marshall, J., dissenting).


source: Caselaw Access Project

author: BOYD, Justice.

license: Public Domain

text:
    Ronald Mark HOLLOWAY, Petitioner, v. STATE of Florida, Respondent.
    No. 48103.
    Supreme Court of Florida.
    Feb. 17, 1977.

      David A. Demers of the Law Offices of Robert W. Pope, St. Petersburg, for petitioner.
    Robert L. Shevin, Atty. Gen., and Mary Jo M. Gallay, Asst. Atty. Gen., for respondent.
   BOYD, Justice.

Ronald Holloway was arrested by an on duty, uniformed St. Petersburg Beach City Police Officer, Thomas Lang, for kidnapping and rape. The arrest occurred within Pinellas County, but beyond the city limits of St. Petersburg Beach. Although beyond his jurisdiction as a City Police Officer, Lang had been appointed Deputy Sheriff of Pinellas County, posted bond and received his commission, but, as the State concedes, he had not taken the oath of office pursuant to Section 30.09(l)(a), Florida Statutes, which provides that no deputy sheriff “shall” be allowed to perform any service as deputy until he “shall” subscribe to the oath prescribed for sheriffs. The trial court deemed the arrest to have been illegal and suppressed the tangible evidence and statements obtained through it.

On interlocutory appeal the District Court of Appeal, Second District, reversed and remanded the cause on a finding that a legal arrest had occurred both because Lang was a de facto deputy sheriff and because the language of Section 30.09(1), Florida Statutes, is directory, rather than mandatory. The court reasoned that to hold otherwise would impede the administration of criminal justice.

We have jurisdiction because the decision of the District Court conflicts with Stinson v. State, 76 Fla. 421, 80 So. 506 (1918), and Treasure, Inc. v. State Beverage Department, 238 So.2d 580 (Fla.1970). In Stinson a deputy sheriff whose bond had not been approved was charged with murder. He defended on the basis that the killing was justifiable homicide which occurred when the victim resisted a lawful arrest. In affirming his conviction this Court said that the defendant had no authority under the statute to make the arrest because his bond as deputy sheriff had not been approved. In Treasure the Director of the Beverage Department had disqualified himself from conducting an administrative hearing. The Governor wrote a letter ap-pointing a juvenile judge to hear the cause, but the judge was neither commissioned nor sworn. A suggestion that the Governor’s letter, standing alone, was insufficient to confer necessary authority upon the judge was denied and the hearing proceeded on its merits, resulting in an order fining Treasure. This Court voided the order holding that, in order to act lawfully, State officers appointed temporarily must be commissioned and sworn as required by Article IV, Section 14 and Article XVI, Section 2, Florida Constitution (1885). The decision recognized the rule that a de facto officer may act lawfully provided that a party to be affected does not make a timely attack on his authority. The rationale for the rule is that those who rely on the actions of an apparently qualified officer have a right to assume that he properly occupies his position, but if his authority is timely challenged innocent parties will be on notice not to rely on it to their detriment.

Treasure makes clear that the initial inquiry before applying the de facto officer rule is whether innocent parties have relied on apparent authority to their detriment. The State has not shown that any innocent party detrimentally relied on the actions of Officer Lang and no detrimental reliance is apparent from the record. Therefore, the District Court mistakenly concluded that Lang was a de facto officer.

We think the District Court was mistaken also in its conclusion that Section 30.09(1), Florida Statutes, is directory rather than mandatory. The word “shall,” as used in statutes, is usually intended to be mandatory rather than directory and the State has offered no reason for finding the legislative intent to be otherwise. We therefore hold the statute to be mandatory.

The decision of the District Court of Appeal, Second District, is quashed and the cause remanded for proceedings consistent with this opinion.

It is so ordered.

ADKINS, HATCHETT and DREW (Retired), JJ., concur.

OVERTON, C. J., dissents.

      .“30.09 Qualification of deputies; special deputies. — (1) Bond, sureties, performance of services. — (a) Each deputy sheriff, appointed as aforesaid, shall be required to give bond in the penal sum of one thousand dollars, payable to the Governor of Florida and his successors in office, with two or more good and sufficient sureties, to be approved by the board of county commissioners and filed with the clerk of the circuit court, which bond shall be conditioned upon the faithful performance of the duties of his office. No deputy sheriff shall be allowed to perform any services as such deputy until he shall subscribe to the oath now prescribed for sheriffs and until the approval of his bond. The aforesaid sureties shall be liable for all fines and amercements imposed upon their principal.”

      . Art. V, § 3(b)(3), Fla.Const.

      . Reported at Fla.App., 318 So.2d 421.

      . Florida Tallow Corp. v. Bryan, 237 So.2d 308 (Fla. 4th DCA 1970); White v. Means, 280 So.2d 20 (Fla. 1st DCA 1973).


author: PER CURIAM.

text:
    Murlene S. YOUNGBLOOD et al., Petitioners, v. Alphonso THOMAS et al., Respondents.
    No. 48677.
    Supreme Court of Florida.
    Feb. 17, 1977.
    R. Justin Marshall, Palmetto, for petitioners.
    L. Floyd Price and Edward 0. Reid, Mann, Fay & Price, Bradenton, for respondents.
   PER CURIAM.

The petition for writ of certiorari reflected apparent jurisdiction in this Court. We issued the writ. Upon further consideration of the cause, we conclude that no direct conflict of decisions exists as required by Article V, Section 3(b)(3), Florida Constitution. Therefore, the writ must be and is hereby discharged.

It is so ordered.

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


author: HATCHETT, Justice.

text:
    Brent SOWELL, Appellant, v. STATE of Florida, Appellee.
    No. 50071.
    Supreme Court of Florida.
    Feb. 17, 1977.
    David J. Busch and Michael M. Corin, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   HATCHETT, Justice.

Our jurisdiction in this case is based upon Article V, Section 3(b)(1), Florida Constitution, vesting jurisdiction in this Court where the constitutionality of a state statute is initially and directly passed upon.

The appellant was convicted of aggravated assault, by the use of a shotgun, under Section 784.04, Florida Statutes, and sentenced to three years imprisonment under the mandatory three-year provision of Section 775.087(2), Florida Statutes. We are asked to determine whether Section 775.-087(2), Florida Statutes, which provides that a person convicted of aggravated assault (Section 784.04, Florida Statutes) through the use of a firearm must be sentenced to a minimum term of three years’ imprisonment, and serve all three years of the sentence before being eligible for parole, is constitutional.

This Court has long held, and now reaffirms its holding, that where a sentence is one that has been established by the legislature and is not on its face cruel and unusual, it will be sustained when attacked on grounds of due process, equal protection, or separation of power theories. 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). We do not find the mandatory three-year sentence provision to be cruel or unusual.

Accordingly, we hold that Section 775.-087(2), Florida Statutes, is constitutional, and the appellant’s conviction is affirmed.

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


author: DREW, Justice, Retired.

text:
    THE FLORIDA BAR, Complainant, v. David N. HIRSCH, Respondent.
    No. 50149.
    Supreme Court of Florida.
    Feb. 17, 1977.
    Stanley B. Powell, Bar Counsel, and David G. McGunegle, Asst. Staff Counsel, Tallahassee, for complainant.
    David N. Hirsch, in pro. per.
   DREW, Justice, Retired.

The Referee recommends that David N. Hirsch be suspended from the practice of law for three months for violating Integration Rule, Art. XI, Rule 11.02(2) and 11.-02(4). Pertinent portions of his cogent and well reasoned findings are:

“I. THE PLEADINGS:
“The complaint charged that respondent received $3,311.51 from his client, in trust, for the express purpose of paying and satisfying said clients’ obligation to a Tallahassee bank. When receiving said funds, respondent also received $131.00 for attorneys [sic] fees and recording fee for recording the clients’ deed which was to be delivered by said bank, when the obligation of the client was fully paid.
“The clients’ funds were placed in respondent’s trust account together with funds of other clients. However, the said clients’ debt to the bank was not promptly paid. The respondent’s trust account was dissipated to the point where the account contained less than $3,311.51. At one point, it contained only $13.04.
“Thereafter the client, who had moved his family to Louisiana, made repeated requests and demands of respondent for performance of his duty. The client retained counsel in Louisiana who also made numerous demands for performance. On April 16, 1975 the respondent paid the obligation for his client and recorded the deed in question without further difficulty to the client or to Louisiana counsel. This happened several weeks after a complaint was made to the Florida Bar by Louisiana Counsel.
“II. THE EVIDENCE:
“Respondent has candidly admitted the foregoing facts. At final hearing he admitted the essential allegations of the complaint and the truth of the complainant’s requests for admissions, which were received in evidence. He offered in evidence his statement in mitigation, based upon the following personal circumstances of respondent. His law office was disorganized and his secretary was incapable of keeping his financial records. At the time respondent was suffering from the emotional disquiet occasioned by marital problems which subsequently led to divorce. He further represented that he has since re-married [sic] and his family situation is now stable; his law office and financial records are now in order. He has throughout, continued to enjoy a favorable reputation in the community. The foregoing facts and recitals were presented at final hearing without dispute or objection by counsel, and I find them to be reasonable and believable. They are accepted as the basic facts of this case.
“III. PERSONAL HISTORY:
“I find that respondent is 49 years old; he was admitted to the Pennsylvania Bar in 1951. After practicing law in Pennsylvania for some ten years he was admitted to the Florida Bar in 1961. He has been employed by Municipal Code Corporation since 1962. He has practiced law in Tallahassee since 1972. There is no evidence of prior professional misconduct in Florida or Pennsylvania.”

The Florida Bar recommends that the punishment here should be disbarment instead of suspension.

We cannot say that the record here establishes that this respondent is one that has been demonstrated to fall within that class of lawyers “unworthy to practice law in this State” as provided in Integration Rule 11.02. Disbarment is the extreme and ultimate penalty in disciplinary proceedings. It occupies the same rung of the ladder in these proceedings as the death penalty in criminal proceedings. It is reserved, as the rule provides, for those who should not be permitted to associate with the honorable members of a great profession. But, in disciplinary proceedings, as in criminal proceedings, the purpose of the law is not only to punish but to reclaim those who violate the rules of the profession or the laws of the Society of which they are a part.

Mr. Henry S. Drinker of the Philadelphia Bar served as Chairman of the Ethics Committee of the American Bar Association under 9 presidents of that organization. His book, Legal Ethics, first published in 1953, has long been considered the best work yet prepared on the subject. Until this publication appeared in 1953 “almost the only work obtainable” on the subject was Judge Sharswood’s lectures on legal ethics at the University of Pennsylvania Law School.

Mr. Drinker, in his discussion of the type of punishment that should be imposed says:

“Ordinarily the occasion for disbarment should be the demonstration, by a continued course of conduct, of an attitude wholly inconsistent with the recognition of proper professional standards. Unless it is clear that the lawyer will never be one who should be at the bar, suspension is preferable. For isolated acts, censure, private or public, is more appropriate. Only where a single offense is of so grave a nature as to be impossible to a respectable lawyer, such as deliberate embezzlement, bribery of a juror or court official, or the like, should suspension or disbarment be imposed. Even here the lawyer should be given the benefit of every doubt, particularly where he has a professional record and reputation free from offenses like that charged. Similarly, such extreme measures should be invoked only in case of fairly recent offenses, proof in refutation of which would be reasonably available to respondent, except, of course, in cases where he was shown to have actively concealed them. Just as a lawyer who has been habitually dishonest will almost certainly revert to his low professional standards when necessity, temptation, and occasion recur, so one who has been consistently straight and upright can properly be trusted not to repeat an isolated offense unless of such a nature as of itself to demonstrate a basically depraved character.”

We have found no better guideline in this troublesome area than those set forth with such clarity by Mr. Drinker. They are just as pertinent in times where the bar sails on placid seas as when it is caught up in the storms of criticism of public servants and all those in positions of trust, such as we are now experiencing in the aftermath of Watergate. We are cognizant of the difficulty of the bar, or this Court, being completely objective in disciplinary cases where the whole profession, including those charged with enforcing its moral codes and concepts, are affected by whatever judgment is rendered. For this reason great care should be exercised to the end that the ultimate judgment does not become an expression of frustration.

In our view the conclusion of the Referee that the judgment be one of suspension from the practice of law for three months, is correct and is hereby adopted as the judgment of this Court.

It is ordered that the period of suspension commence with the filing of this decision and shall continue thereafter for a period of three months and until the costs in the amount of $301.50 are paid.

It is so ordered.

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

      . See Foreword Legal Ethics by Henry S. Drinker.

      . Id. at 46, 47.


author: BOYD and KARL, Justices.

text:
    Monroe W. TREIMAN, Appellant, v. Edwin W. MALMQUIST et al., Appellees. Bruce A. SMATHERS et al., Appellants, v. Monroe W. TREIMAN, Appellee. STATE of Florida ex rel. Edwin W. MALMQUIST, Petitioner, v. Monroe W. TREIMAN, Respondent. STATE of Florida ex rel. Monroe W. TREIMAN et al., Relators, v. Honorable L. R. HUFFSTETLER, Jr., etc., Respondent.
    Nos. 50692, 50731, 50854 and 50855.
    Supreme Court of Florida.
    Feb. 17, 1977.

      Joseph C. Jacobs and Robert J. Angerer, of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for Monroe W. Treiman.
    Frank McClung, Brooksville, Robert L. Shevin, Atty. Gen., and Joseph W. Lawrence, II and Mary Jo Carpenter, Asst. At-tys. Gen., for Edwin W. Malmquist and Bruce A. Smathers, appellees-appellants.
    Frank McClung, Brooksville, for State of Florida ex rel. Edwin W. Malmquist, Petitioner.
    Joseph C. Jacobs and Robert J. Angerer, of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, Robert L. Shevin, Atty. Gen., and Joseph W. Lawrence, II and Mary Jo Carpenter, Asst. Attys. Gen., for State of Florida ex rel. Monroe W. Treiman, rela-tors.
    L. R. Huffstetler, Jr., in pro. per.
   BOYD and KARL, Justices.

This cause comes before us on consolidated appeals from the order of the Circuit Court of the Second Judicial Circuit finding Section 105.031(4)(a), Florida Statutes, unconstitutional, original petition for writ of prohibition brought by Treiman, Bruce Smathers as Secretary of State, and the Elections Canvassing Commission, and an original petition for quo warranto filed by Malmquist. We have jurisdiction pursuant to Article V, Section 3(b)(1), (b)(4), (b)(5), Florida Constitution.

The controversy sub judice arises from an election contest for the office of county judge of Hernando County, wherein Edwin Malmquist defeated Monroe Treiman, the incumbent, by six votes. Malmquist qualified to run for office on July 12, 1976, at which time he took the oath prescribed by Section 105.031(4), Florida Statutes, which requires the candidate to have been registered to vote in Florida in the last preceding general election. However, the last general election had been held November 5, 1974, and Malmquist had not registered to vote in Florida until November 14, 1974.

Treiman filed a complaint against Malm-quist, the Hernando County Canvassing Board, the Secretary of State and the State Elections Canvassing Commission to contest the certification of election as provided by Section 102.161, Florida Statutes (1975), contending that Malmquist knowingly falsely represented to the Secretary of State that he was registered to vote in this state in the last preceding general election as required by Section 105.031(4)(a), Florida Statutes, and falsely signed the oath required of candidates for judicial office. Treiman requested the circuit court to adjudicate Malmquist not duly qualified to appear as a candidate for the office of county judge on the first primary ballot because of his failure to comply with the mandatory requirements of the statutes and his lack of qualifications. Treiman further prayed that the Hernando County Canvassing Board and the Elections Canvassing Commission be enjoined temporarily and permanently from certifying that Malmquist was elected county judge of Hernando County and prayed that the circuit court order the Secretary of State to certify Treiman as the duly qualified county judge.

Malmquist filed a motion to dismiss on the basis that he has violated no statute or constitutional provision which would expressly disqualify him from holding the office of county judge to which he was duly elected. The trial court dismissed the complaint with prejudice and held, to the extent Section 105.031(4) requires a candidate to be an elector of the state in the last preceding general election, it places a greater restriction than that imposed by Article V, Section 8, Florida Constitution, and, to such extent, is unconstitutional. Although dismissing the complaint filed by Treiman and, thereby, finding that Malmquist was entitled to the office to which he was duly elected by the people, the trial judge expressed grave concern over the conduct of Malmquist in knowingly making a false statement when taking the oath for judicial office.

Upon motion by Treiman, the trial court granted supersedeas allowing Treiman to remain in office until the appeal is concluded and the decision of the trial court becomes final.

Malmquist then filed a petition for writ of quo warranto in the Circuit Court in and for Hernando County to oust Treiman from the office of county judge which Malmquist contended Treiman was illegally and unlawfully holding. The State of Florida, on the relation of Treiman, the Secretary of State and the Elections Canvassing Commission, filed a petition for writ of prohibition seeking to prohibit Judge Huffstetler, of the Fifth Judicial Circuit, from proceeding further on Malmquist’s petition for writ of quo warranto. This court issued a rule nisi in prohibition directing Judge Huffstetler to refrain from exercising any further jurisdiction in the quo warranto proceeding or to show cause why the suggestion should not be granted.

Malmquist has now filed in this court a petition for writ of quo warranto to oust Treiman from the office of County Judge of Hernando County.

Section 105.031(4), Florida Statutes, provides:

“Oath of office. — All candidates for judicial office shall subscribe to an oath or affirmation in writing to be filed with the division of elections upon qualifying and in which he shall state:
(a) That he was registered to vote in this state in the last preceding general election;
(b) The title of the office for which he is a candidate;
(c) That he is a qualified elector of the state and of the territorial jurisdiction of the court to which election is sought;
(d) The name of the county of his legal residence;
(e) That he is qualified under the laws of this state to hold the judicial office to which he desires to be elected;
(f) That he has not violated any of the laws of the state relating to elections or registration of electors;
(g) That he has taken the oath as required by §§ 876.05-876.10;
(h) That he has qualified for no other public office in the state, the term of which office or any part thereof runs concurrent to the office he seeks; and
(i) That he has filed with the division a sworn statement of contributions and expenditures incurred prior to the time of qualifying and since the last preceding general election.”

We agree with the trial court that the subject statutory provision is unconstitutional but not on the basis that it constitutes an unconstitutional extension of constitutional requirements for qualification to judicial office. Rather, we find the statute unconstitutional for the reason that it is an arbitrary and unreasonable restraint on the election process in this state.

Although the Legislature is charged with the authority and responsibility of regulating the election process so as to protect the political rights of the people and the integrity of the political process, these regulations must be reasonable and necessary restraints on the elective process and not inconsistent with the constitution of this state. In order to assure orderly and effective elections, the state may impose reasonable controls. In Bodner v. Gray, 129 So.2d 419 (Fla.1961), this court explained:

“The law places restraints upon all of its citizens in the exercise of their rights and liberties under a republican form of government. Such restraints have been found to be necessary in the development of our democratic processes to preserve the very liberties which we exercise. Similar restraints may lawfully be imposed upon individual candidates for public office.”

The declaration of rights expressly states that “all political power is inherent in the people.” Article I, Section 1, Florida Constitution. The right of the people to select their own officers is their sovereign right, and the rule is against imposing unnecessary and unreasonable disqualifications to run. ef. Ervin v. Collins, 85 So.2d 852 (Fla.1956), wherein this court declared that:

“The lexicon of democracy condemns all attempts to restrict one’s right to run for office. The Supreme Court of the United States has approved the support of fundamental questions of law with sound democratic precepts.”

Unreasonable or unnecessary restraints on the elective process are prohibited. Pasco v. Heggen, 314 So.2d 1 (Fla.1975).

Fundamental to our system of government is the principle that the right to be a candidate for public office is a valuable one and no one should be denied this right unless the Constitution or an applicable valid law expressly declares him to be ineligible, cf. Vieira v. Slaughter, et al., 318 So.2d 490 (Fla. 1st DCA, 1975). This court, in Hurt v. Naples, 299 So.2d 17 (Fla.1974), emphasized:

“Discouragement of candidacy for public office should be frowned upon in the absence of express statutory disqualification. The people should have available opportunity to select their public officer from a multiple choice of candidates. Widening the field of candidates is the rule, not the exception, in Florida.”

To determine reasonableness of the restraint or condition placed on the right to seek public office, the nature of the right asserted by the individual must be considered in conjunction with the extent that it is necessary to restrict the assertion of the right in the interest of the public. Jones v. Board of Control, 131 So.2d 713 (Fla.1961).

The statute sub judice requires that candidates for judicial offices subscribe by oath to the fact that they were registered to vote in this state in the last preceding general election. For those persons who were possessed of all of the qualifications of electors prior to the closing of the registration books preceding the last general election and who actually registered to vote in this state in that election, the statute poses no problem. However, it effectively forecloses the candidacy of all of those otherwise qualified persons who, because of age, illness, residence or other reason, failed or were unable to register to vote in a time period somewhere in the past.

We find that Section 105.031(4)(a) does not serve any reasonable or legitimate state interest. It does not in any way protect the integrity of the election process or purity of the ballot; it does not serve to keep the ballot within manageable limits, cf. Lubin v. Parrish, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974), Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), Pasco v. Heggen, supra; nor does it serve to assure orderly and effective elections; it does not serve to maintain party loyalty and perpetuate the party system, cf. Crowells v. Petersen, 118 So.2d 539 (Fla.1960). The barrier it erects is an unnecessary restraint on one’s right to seek elective office. Noteworthy is the fact that this restriction applies solely to candidates for judicial office. No such similar restraint is placed on candidates for any other political office.

For the foregoing reasons, we find Section 105.031(4)(a) unconstitutional. Since Malmquist was qualified for the position of county judge and was successful in the election for that position, he is entitled to the office.

We affirm the judgment of the trial court dismissing the complaint filed by Treiman against Malmquist, the Hernando County Canvassing Board, the Secretary of State and the Elections Canvassing Commission.

However, this does not dispel the problem of Malmquist’s false swearing in making the oath for judicial office since, at the time he took the oath, the statute was in force and effect. Relative to this point, we adopt the rationale of the trial judge as expressed in his order dismissing the complaint, as follows:

“[T]he Court has grave concern with respect to the fact that the defendant Malmquist did, in fact, make a false statement when taking the oath prescribed for candidates for judicial office. Acts of the Legislature are deemed lawful and constitutional until declared otherwise by a Court of competent jurisdiction. Public officials are charged with the duty and obligation of complying with the law and we believe that this should be especially true with respect to those who seek judicial office. It is the opinion of this Court that the defendant Malmquist had an appropriate remedy to seek a determination of the constitutionality of the statute involved and that as a citizen, and especially as a candidate for judicial office, he had an obligation to comply with the law and to meet all of its requirements. This, in our opinion, he failed to do and it may be that he has thereby subjected himself to other action by lawful and constituted authority. The judgment and opinion of this Court is rendered without prejudice to the consideration of the facts of this cause by the Judicial Qualifications Commission, or other lawful authority, to determine the qualifications of the defendant Edwin W. Malmquist to hold the office of County Judge of Hernando County, Florida.”

The action of the trial judge in granting the motion for supersedeas which allowed Treiman to remain in office until this appeal is concluded is approved. Therefore, we hold that Treiman’s holding over as county judge until the effective date of this opinion was lawful.

In view of the necessity for expediency in this matter, the privilege of filing rehearing is dispensed with and this opinion shall be effective immediately.

Accordingly, the judgment of the trial court is affirmed, and the petition for writ of prohibition directed to Judge Huffstetler is granted. The petition for quo warranto is moot.

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

ADKINS, J., dissents.


author: McCORD, Judge.

text:
    Eugene THOMAS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. AA-484.
    District Court of Appeal of Florida, First District.
    March. 3, 1977.
    Rehearing Denied April 26, 1977.
    C. Wayne Alford of Jacobs, Sinoff, Edwards, Alford & Burgess, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant appeals his robbery conviction. He filed a motion in the trial court to dismiss the information on the ground that he was immune from prosecution because he had been granted immunity pursuant to the operation of § 914.04, Fla.Stat.1975. Following an evidentiary hearing, the court denied the motion to dismiss and thereafter appellant pled nolo contendere and preserved on the record his right to appeal the court’s order denying his motion to dismiss.

On February 14, 1975, the state attorney filed an information against Freddie Lee McKinney and “John Doe.” The information alleged that McKinney and an unknown person committed a robbery on February 11, 1975. Appellant called the police and told them he had information concerning the robbery. Two detectives interviewed appellant, and he signed a waiver of rights against self-incrimination. Pursuant to the information received, the state attorney subpoenaed appellant, and he was interrogated on March 24, 1975, (without being placed under oath) concerning the whereabouts of his automobile on the night of the robbery and what he knew about the robbery. At that time, the state considered that it had the identity of one person involved in the robbery (Freddie Lee McKinney), but it had not identified the second person. Appellant informed the state that McKinney had his (appellant’s) automobile on the night in question. This was the only pertinent information given by appellant relative to the robbery. More than five months later, on September 9, 1975, the state filed an amended information naming appellant as a co-defendant.

§ 914.04, Fla.Stat.1975, provides as follows:

“Witnesses; person not excused from testifying in certain prosecutions on ground testimony might incriminate him; immunity from prosecution. — No person, having been duly served with a subpoena or subpoena duces tecum, shall be excused from attending and testifying or producing any book, paper, or other document before any court having felony trial jurisdiction, grand jury, or state attorney, upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture, but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proceeding.”

Here appellant called the police and volunteered that he had information about the robbery. Upon being contacted by the police, he signed a waiver of his constitutional rights against self-incrimination. He thereafter was subpoenaed to the state attorney’s office because of his voluntary representation that he had information about the robbery. The only information that he related was that McKinney had his (appellant’s) automobile on the night of the robbery. Under these circumstances, his testimony before the state attorney to such effect was voluntary and constituted a waiver of immunity. Compare State v. Newell, 102 So.2d 613 (Fla.1958); State ex rel. Foster v. Hall, 230 So.2d 722 (Fla. 2 DCA 1970); and Orosz v. State, 334 So.2d 26 (Fla. 1 DCA 1976).

AFFIRMED.

BOYER, C. J., and RAWLS, J., concur.


author: GRIMES, Judge.

text:
    C. E., Jr., a child, Appellant, v. STATE of Florida, Appellee.
    No. 76-307.
    District Court of Appeal of Florida, Second District.
    Sept. 15, 1976.

      Jack 0. Johnson, Public Defender, Bar-tow, Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

This is an appeal from a delinquency adjudication predicated upon petit larceny.

Appellant and three others proceeded down the shopping aisles of Zayre’s Department Store placing various items of merchandise in a shopping cart. The group was observed by a Zayre’s security guard who saw them put the merchandise, consisting of wearing apparel, in large plastic garbage bags and then hide the bags under racks of clothing in the front of the store. The group then left the store.

The security staff at the store kept the bags under observation. About 45 minutes later, appellant and his companions returned. After going in and out of the store several times, the group was arrested by police outside of the store. It was determined that they had little or no money and no credit cards. The retail value of the merchandise was $479.

At trial, the judge denied the defense’s motion for judgment of acquittal and found appellant guilty. Appellant argues that the state did not prove the requisite felonious intent at the time the goods were moved within the store. He also contends the movement of the merchandise within the store did not constitute asportation of the goods, a necessary element of the crime charged.

The intent with which an act is accomplished is an operation of the mind. Therefore, it is not always capable of direct and positive proof and may be presumed from the facts and circumstances surrounding the criminal episode. Board of Regents v. Videon, Fla.App.1st, 1975, 313 So.2d 433. In this case, the facts surely indicate an unlawful intent to deprive Zayre’s of the merchandise. The clothes were placed in garbage bags and then hidden. There is no indication that the group intended to go through the check-out procedures and pay for them, since they were virtually penniless when apprehended. Under these circumstances, the finder of fact could properly conclude that appellant had the requisite intent.

The next issue is the asportation or carrying away of the merchandise. In Driggers v. State, 1928, 96 Fla. 232, 118 So. 20, the Supreme Court upheld a conviction for larceny where the defendant had killed a cow and began to prepare the carcass for beef but had not moved it from the place where it had fallen when he was scared away. The court observed:

“It is generally held, however, that the asportation of the property or the carrying away of the same is completed by even the slightest removal of the thing stolen from its original position. . . ”

The appellant moved the merchandise in the store from its place of display to a garbage bag hidden under a clothes rack. This was sufficient movement and transfer of possession to constitute asportation. The defense argues that in a self-service store such as Zayre’s, the customers have implied permission to remove the goods and go through the store with them. That, of course, is correct, if the circumstances show that the customer intends to purchase the goods. However, all actions by appellant and his group indicate that this was not their intent.

In People v. Baker, 1937, 365 Ill. 328, 6 N.E.2d 665, the Illinois court pointed out that one who takes goods of another and places them in a place convenient for removal is guilty, of larceny. The following statement from 50 Am.Jur.2d, Larceny, § 19, aptly summarizes the pertinent criteria as it relates to larceny in a self-service store:

“§ 19. — Removal to another place on same premises.
Asportation sufficient to support a larceny charge does not require that the goods be removed from the owner’s premises. To remove them with the requisite felonious intent from one part of the premises to another, or from the spot or house where they were found, or even from one place to another in the same room, is a sufficient asportation. However, in the case of a self-service store in which customers circulate through the sales area and take up articles to be paid for at the checkout counter, the mere taking up of goods in the sales area does not constitute asportation unless there is conduct by the actor indicating that his possession is clearly adverse to that of the store, a conditional temporary possession being authorized under these circumstances. On the other hand, the elements of taking and asportation were satisfied where a shopper in a self-service store took goods from the shelf and concealed them in her purse, which was inside a cart containing groceries, because by concealing the articles in her purse separate and apart from the other goods in the cart, the accused acquired complete and exclusive control over the property.”

See also 19 A.L.R. 724, 726; 144 A.L.R. 1383, 1385.

The lower court’s judgment is affirmed, but the case is remanded to correct an error in the formal court order of delinquency which stated the appellant was guilty of grand larceny when the judge found him guilty of petit larceny because he wasn’t sure what portion of the goods appellant put in the bags. RJP 8.140.

McNULTY, C. J., and HOBSON, J., concur.


text:
    Franklin D. KREUTZER, Appellant, v. Milton J. WALLACE, Appellee.
    No. 75-956.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.
    Rehearing Denied Feb. 25, 1977.
    Jepeway, Gassen & Jepeway, Miami, for appellant.
    Frates, Floyd, Pearson, Stewart, Proenza & Richman and John M. Brumbaugh and James D. Little, Miami, for appellee.
    Before HENDRY, C. J., BARKDULL, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal from a final judgment entered in an action for dissolution of a professional association engaged in the practice of law. The action was brought by Mr. Wallace, owner of 60% of the stock in the corporation, for dissolution and other relief. The appellant, Mr. Kreutzer, was owner of the remaining 40% of the stock.

Upon hearing, the trial court entered the following final judgment:

“THIS CAUSE came on to be heard before me the 7th day of May, 1975, for Final Hearing. The Court, after hearing argument of counsel, orders and adjudges as follows:
“1. In open Court, counsel for the parties stipulated that there were no factual issues to be disposed of in connection with the dissolution of Wallace & Kreutzer, P.A., a Professional Service Corporation engaged in the practice of law.
“2. The parties stipulated, and the Court so finds and orders, that the ‘effective termination date of the P.A.’s practice of law was March 31, 1974.’
“3. The parties stipulated, and the Court so finds and orders, that when all pending matters are ‘wound up,’ the assets of the P.A., after payment of the P.A.’s liabilities, shall be distributed to the stockholders in proportion to their stockholdings, to-wit:
“MILTON J. WALLACE 60%
“FRANKLIN D. KREUTZER 40%
“4. The parties stipulated, and the Court so finds and orders, that the issues of law herein are controlled by the case of Frates vs. Nichols, 167 So.2d 77 ((Fla. App.) 3 DCA 1964).
“5. The parties stipulated that the sole issue, as a matter of law, to be determined by this Court, is the disposition of legal fees arising out of client matters pending as of March 31, 1974.
“6. Counsel for Wallace urged that the Court make a distinction between fees earned and paid for by clients on an hourly basis and fees earned and paid for on a contingent contract basis. The Court finds that, as a matter of law, there is no such distinction.
“7. The Court finds that Milton J. Wallace and Franklin D. Kreutzer are each entitled to ‘income’ for services rendered in ‘winding up’ their respective cases for the benefit of the firm subsequent to March 31, 1974, the stipulated day of the P.A.’s termination. Accordingly, in accordance with the formula approved in Frates v. Nichols, supra, Wallace shall receive 60% of all fees collected by Wallace after March 31,1974, relating to P.A. matters pending on March 31, 1974, wherein Wallace wound up said matter. The remaining 40% of all said fees collected by Wallace shall be paid to the P.A. Correspondingly, Kreutzer shall receive 40% of all fees collected by Kreut-zer after March 31, 1974, relating to P.A. matters pending on March 31, 1974, wherein Kreutzer wound up said matter. The remaining 60% of all said fees collected by Kreutzer shall be paid to the P.A.
“8. After all matters pending as of March 31,1974 are finally ‘wound up’, the P.A. shall be formally dissolved and the remaining assets after the payment of all liabilities, shall be distributed as set forth in Paragraph 3 above.
“9. The parties stipulated and the Court orders, that implementation of the instant Order be accomplished, without the necessity of the appointment of a Receiver.
“10. Jurisdiction is reserved by this Court to implement the terms of this Order.”

Appellant, Kreutzer’s principal contention in this appeal is that the trial court erred in ruling that an attorney in dissolving a professional association of which he is a member is entitled to income for winding up P.A. cases, over and above his interest in the total assets and fees of the P.A. We find merit in appellant’s contention and reverse.

The trial court misapplied the holding of this court in Frates v. Nichols, supra. We said in Frates: “We adopt the rule recognized by our sister states that the retention of a law firm obligates every member thereof to fulfilling that contract, and that upon a dissolution any of the partners is obligated to complete that obligation without extra compensation.” Frates v. Nich ols, 167 So.2d 77, 81 (Fla.App., 3d DCA 1964).

Since the agreement under which Wallace and Kreutzer operated made no provision for extra compensation for members of the firm for winding up cases subsequent to dissolution, the rule enunciated above controls.

For the reason stated, that portion of the judgment that awarded extra compensation to each of the partners for work done or to be done in winding up the cases of the P.A. is reversed. It stands affirmed in all other respects.

Affirmed in part; reversed in part.


text:
    Louise J. WELLS, Appellant, v. Irvin FREEDMAN et al., Appellees.
    Nos. 75-1985, 76-89.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.
    Rehearing Denied Feb. 25, 1977.
    Frates, Floyd, Pearson, Stewart, Proenza & Richman and David J. White, Miami, for appellant.
    Leo Greenfield, North Miami, for appel-lees.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

By these consolidated appeals, Louise Wells, plaintiff in the trial court, appeals from an adverse summary final judgment in favor of the defendants, Irvin Freedman, Outrigger Club, Inc. and Biscayne West, Inc. Defendants appeal the trial court’s denial of their petition for an award of attorney’s fees.

Plaintiff sued on a promissory note executed by the defendants in the sum of $150,000.00. Defendants responded to the complaint alleging affirmative defenses, inter alia, that the note sued upon was usurious and unenforceable under Sections 687.-02, 687.03 and 687.071(7), Florida Statutes. In support of this contention, defendants alleged that the original loan bore interest thereon at the rate of ten per cent (10%) per annum; that plaintiff demanded and received $7,521.00 as an additional bonus for the $150,000.00 loan, which sum was evidenced by a promissory note executed on the same date as the original loan; that plaintiff and defendants Irvin Freedman and Outrigger Club, Inc., entered into an agreement whereby plaintiff would forbear from collecting the $150,000.00 note on its due date, February 4, 1974, and extend the term of the loan until May 30, 1974; that for this extension and forbearance, plaintiff required an additional $12,000.00.

Plaintiff replied to the affirmative defenses, denying the validity of the forbearance agreement and alleging that the $7,521.00 represented back taxes owed to the plaintiff by defendant Freedman.

The trial court found no genuine issues of material fact and entered summary final judgment declaring plaintiff’s $150,000.00 note unenforceable under Section 687.-071(7), Florida Statutes. A judgment for the defendants was entered against plaintiff in the sum of $21,042.00, which represented a penalty of double interest pursuant to Section 687.04, Florida Statutes, together with a judgment for plaintiff on defendants’ counterclaim for attorney’s fees under Section 687.04, Florida Statutes.

In reviewing the record, which is comprised of depositions, affidavits and exhibits, plaintiff’s affidavits allege mutual fraud and mistake by defendants as to the forbearance agreement and facts supporting plaintiff’s contention that the $7,521.00 note was given as payment for back taxes.

We reverse and hold that there are present issues of material fact remaining to be tried in this cause. Usury is ordinarily an issue of fact to be determined at trial. Kellerman v. Siegal, 319 So.2d 581 (Fla.3d DCA 1975). Moreover, usury is largely a matter of intent, and the fact that the lender has received more than the law permits is not fully determinative of this issue. Dixon v. Sharp, 276 So.2d 817, 820 (Fla.1973). In the instant case, factual disputes exist as to the $7,521.00 note and the forbearance letter. Accordingly, we reverse the summary judgment.

While the question of attorney’s fees raised herein may ultimately be rendered moot, depending upon the outcome of the trial, we agree with the trial court’s judgment that attorney’s fees are not authorized under Section 687.04, Florida Statutes.

Affirmed in part and reversed in part.

      . From the face of the extension agreement itself, it appears that the term of the note was extended until March 31, 1974, at which time part payment of the principal was to be made, with the remaining principal and accrued interest payable thirty days thereafter. Further, it appears that the extension agreement was executed by Biscayne West, Inc.


author: NATHAN, Judge.

text:
    Alvah G. HALES, and Sea Trawl, Ltd., Appellants, v. ASHLAND OIL, INC., et al., Appellees.
    No. 76-62.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.
    Rehearing Denied March 16, 1977.

      Hal P. Dekle, Tallahassee, for appellants.
    Frates, Floyd, Pearson, Stewart, Richman & Greer and Phillip E. Walker, John L. Ashworth, Marion, Ohio, Aubrey V. Kendall, Miami, for appellees.
    Before HENDRY, C. J., NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   NATHAN, Judge.

Alvah G. Hales and Sea Trawl, Ltd., plaintiffs in the trial court, appeal from an order dismissing their amended complaint with prejudice. Plaintiffs had brought suit alleging that defendants had tortiously interfered with contractual rights and advantageous business relationships of the plaintiffs. Plaintiffs had further alleged that they were third party beneficiaries of certain contracts which the defendants had allegedly breached.

This cause arises out of incidents related in Ashland Oil, Inc. v. Pickard, 269 So.2d 714 (Fla. 3d DCA 1972), cert. denied, 285 So.2d 18 (Fla.1973). In that case, plaintiff Pickard had sued Ashland Oil, Inc., its wholly owned subsidiaries, Cobia Boats, Inc., and Modern Fiber Glass, Inc., and Harold L. Slama, who was an officer of both subsidiaries, for deceit and breach of contract. We found there that the parties had embarked upon a joint ventureship for the production and sale of fiberglass shrimp trawlers. Ashland and its subsidiaries were to manufacture hulls for the trawlers and provide financing, while Pickard and his wholly owned company were to outfit the hulls and promote sales of the completed vessels. Id. at 721, n. 6. We ultimately affirmed a jury verdict for Pickard upon his claim that the Ashland interests had fraudulently represented that Pickard would have first right to outfit and sell the trawlers so that defendants could take advantage of Pickard’s expertise in outfitting the hulls while they were secretly preparing to outfit and market the vessels themselves.

Plaintiffs in the instant case alleged that the Ashland group had tortiously interfered with plaintiffs’ business relationship with Pickard, whereby plaintiffs were to purchase 200 trawlers from Pickard. Plaintiffs also asserted that they were third party beneficiaries to the agreements between Pickard and the defendants, in that the defendants knew or should have known that Pickard would be induced to procure orders for finished vessels from persons such as the plaintiffs. The trial court found that these allegations failed to state a cause of action. We agree.

It is true that Florida recognizes a separable and independent tort of malicious interference with contractual rights or advantageous business relationships. See Dade Enterprises v. Wometco Theaters, Inc., 119 Fla. 70, 160 So.2d 209 (1935); John B. Reid and Associates, Inc. v. Jimenez, 181 So.2d 575 (Fla. 3d DCA 1965); Franklin v. Brown, 159 So.2d 893 (Fla. 1st DCA 1964). However, as we noted in Reid and Associates, supra at 577, one of the elements of this tort is that “in order to secure an advantage, the defendant, by fraud, induces plaintiff’s business associate to act in a way which destroys plaintiff’s business relationship.” (Emphasis added.)

While the plaintiffs herein contend that they fit within this category, an examination of the factual situations surrounding this tort militates against such a conclusion. In each of the cases cited above, the defendants sought to procure some sort of business advantage directly over the plaintiffs. Plaintiffs herein have at best been indirectly affected by the defendants’ attempts to secure an advantage over Pickard. We have been unable to find a single case which has allowed recovery based on the kind of indirect harm which plaintiffs have allegedly sustained. Were it otherwise, defendants would be subjected to an endless array of suits by persons who have been indirectly injured by virtue of their dealings with the party over whom the defendants had sought to gain an advantage. For example, plaintiffs here alleged that they had already sold, leased and financed numerous vessels. If we were to allow recovery under plaintiffs’ theory, then those who had contracted for such purposes with the plaintiffs would also have a cause of action against Ashland Oil and its subsidiaries. We therefore find that the trial court properly ruled that plaintiffs’ allegations failed to state a cause of action for tortious interference with plaintiffs’ business relationships.

Based upon a similar rationale, we hold that plaintiffs were not third party beneficiaries of the agreements between Pickard and the Ashland Oil interests. Those agreements were not designed to benefit Pickard’s prospective customers, but were solely for the mutual profit of Pickard and the Ashland Oil group. The incidental or consequential benefit flowing to customers of the Pickard companies is not sufficient to allow them to sue as third party beneficiaries. See Muravchick v. United Bonding Insurance Co., 242 So.2d 179 (Fla. 3d DCA 1970); see also Brooks v. Owens, 97 So.2d 693 (Fla.1957).

For the above reasons, we hold that the trial court properly dismissed plaintiffs’ complaint for failure to state a cause of action.

Affirmed.


text:
    Margo A. MOSCA, Appellant, v. Robert MIDDLETON, Appellee.
    Nos. 76-116 to 76-118.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.
    Rehearing Denied Feb. 25, 1977.

      Richard M. Gale, Stephens & Schwartz, Franklin D. Kreutzer, Miami, for appellant.
    Horton, Perse & Ginsberg, P. J. Carroll & Associates, Adams, George, Lee & Schulte and David L. Willing, Miami, for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

The appellant contends that where evidence at a trial discloses that plaintiff and defendant entered a traffic- intersection against a red light (plaintiff making a left turn and the defendant coming in the opposite direction at a considerable rate of speed), the jury must find the plaintiff negligent to some degree and, therefore, must apportion damages under the doctrine of comparative negligence.

We do not agree. A jury may find that the defendant’s negligence was the sole proximate cause of the accident. Even if the plaintiff was negligent, his negligence may not have contributed to the proximate cause of the accident. Henry v. Britt, 220 So.2d 917 (Fla. 4th D.C.A. 1969); Vertommen v. Williams, 287 So.2d 116 (Fla. 4th D.C.A. 1974); Petroleum Carrier Corporation v. Gates, 330 So.2d 751 (Fla. 1st D.C.A. 1976); Compare Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

Therefore, the jury verdict and final judgment here under review be and the same are hereby affirmed.

Affirmed.


text:
    George DAVIS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-151.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.
    Rehearing Denied Feb. 25, 1977.

      Bennett H. Brummer, Public Defender and Thomas G. Murray, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Brian H. Leslie, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   NATHAN, Judge.

George Davis was charged by information with the robbery of a U-Tote-M store, aggravated assault and unlawful possession of a firearm while engaged in a criminal offense. He was tried by jury, found guilty on all three counts, convicted and sentenced to twenty-five years in the state penitentiary for robbery, five years for aggravated assault and five years for unlawful possession of the firearm. The two five year sentences were to run concurrently with the sentence for robbery.

During the trial, the defendant testified that he daily went to the subject U-Tote-M store; that he first heard about the robbery from his brother; that he did call the investigating officer, Detective Cohen, but that he did not go to see him because he “thought it was a gag.” Although he could not be positive as to his whereabouts on the Sunday morning of the robbery, he stated that he was probably home sleeping, since Sunday was his diy off. He was positive that he was not at-the store and that he did not commit the robbery.

On cross-examination, the following col o-quy occurred:

Q. [Prosecutor] Did you at any time attempt to explain to Detective Cohen any of the circumstances in your case?
A. [Davis] Detective Cohen advised me of my rights. And I replied that I would like to see my lawyer.
Q. You never told him that you were working?
A. Yes, I told him that I was working.
Q. Did you ever explain to him that you slept late on Sunday mornings?
A. No, I didn’t.
Q. Did you ever tell him that you had never met Louise Hester?
A. He never asked.
* * * * *
Q. Did you ever attempt to get this information to Detective Cohen that somebody saw you sleeping on January 19th, at 7:30 in the morning?
A. No, I didn’t.
Q. Did you ever attempt to give this information to the State in any way?
MR. TUNKEY [Defense counsel]: Objection, Judge .
THE COURT: Sustained.

Defendant argues that the foregoing cross-examination deprived him of his rights under the Fifth and Fourteenth Amendments to the United States Constitution, in that the prosecutor attempted to impeach the defendant’s testimony based on his failure to offer exculpatory statements to the police after he had been advised of his right to remain silent. We find merit in this point.

The United States Supreme Court and the Supreme Court of Florida have both issued recent opinions clarifying the law in this much debated area. In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the United States Supreme Court held that the use for impeachment purposes of a defendant’s silence at the time of his arrest and after he has received his Miranda warnings violated the Due Process clause of the Fourteenth Amendment. In the majority opinion, Mr. Justice Powell noted that “it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.”

While the applicability of the Doyle case to the instant appeal would seem to be in doubt due to previous United States Supreme Court holdings to the effect that constitutional interpretations of Fifth Amendment rights were not retroactive, this question has apparently been resolved. The high court recently remanded a case to the Third District Court of Appeal for further consideration in light of Doyle. Lebowitz v. Florida, - U.S. -, 97 S.Ct. 44, 50 L.Ed.2d 68 (1976). In the Lebowitz case, we had held that a defendant could properly be cross-examined concerning pretrial silence where such questioning was a “logical and common sense test” of the defendant’s credibility. Lebowitz v. State, 313 So.2d 473 (Fla.3d DCA 1975). In view of the Supreme Court’s actions, however, it is clear that the holding in Lebowitz cannot stand and, further, that the Doyle precedent is applicable to cases currently on appeal.

As was noted above, the Florida Supreme Court has also recently considered this issue. In Bennett v. State, 316 So.2d 41 (Fla.1975), it held that it was reversible error to deny a mistrial where a witness had testified to the fact that the defendant there had refused to sign a waiver of his Miranda rights or make a statement during interrogation.

The State argues that Bennett did not hold that references to a defendant’s silence at the time of arrest required reversal, but rather than reversal was merely warranted under the facts of that case. We cannot accept this interpretation of Bennett given the Florida Supreme Court’s holding in Shannon v. State, 335 So.2d 5 (Fla.1976). There the Court expressly noted that it had held in Bennett that “any comment on an accused’s exercise of his right to remain silent is reversible error, without regard to the harmless error doctrine.” Id.

At this point, we should note an apparent conflict between our holding today and our earlier opinion in Manning v. State, 336 So.2d 408 (Fla.3d DCA 1976), where we applied the harmless error doctrine after finding that it was reversible error for the State to present testimony concerning the defendant’s post-arrest silence. To the extent that the harmless error doctrine was applied in Manning, we now recede from our holding in that case.

We therefore find that the prosecutor’s cross-examination of the defendant concerning his pre-trial silence was improper and remand for a new trial.

Reversed and remanded.

      . No motion for a mistrial was ever made by defendant’s counsel based upon the objection. Nevertheless, it is clear that cross-examination of a defendant concerning his pre-trial silence involves a question of such constitutional magnitude that no such motion is necessary to preserve the issue on appeal. In Lebowitz v. State, 313 So.2d 473 (Fla.3d DCA 1975), a similar issue was raised, though defense counsel there had never even objected to the allegedly improper cross-examination. Despite this fact, the United States Supreme Court ultimately considered the issue on appeal. See discussion infra.

      . See, e. g., Mackey v. U. S., 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Tehan v. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966).

      . In addition, the United States Supreme Court’s holding in Doyle, supra, overrules Reilly v. State, 212 So.2d 796 (Fla.3d DCA 1968), wherein it was held that a defendant could be cross-examined as to his failure to offer an explanation of his presence at the scene of a crime to arresting officers. Reilly and the cases which followed it, see Smith v. State, 305 So.2d 247 (Fla.3d DCA 1974), and Thomas v. State, 249 So.2d 510 (Fla.3d DCA 1971), were based on the long-standing rule that a defendant who takes the stand waives his immunity from testimony and thus may be cross-examined as any other witness. See Raffel v. U. S., 271 U.S. 494, 496-97, 46 S.Ct. 566, 567, 70 L.Ed. 1054, 1057-57 (1926). However, this rule has clearly been superceded by the Doyle holding to the extent that such cross-examination involves comment on the defendant’s exercise of his pre-trial right to remain silent.


text:
    Samuel SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1890.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant, Samuel Smith, appeals his conviction of grand larceny following a jury trial.

On appeal Smith urges as reversible error the trial court’s denial of defense motions for curative instructions and mistrial upon the commenting of his right to remain silent by the prosecuting attorney in opening argument and a prosecution witness during the trial. We find this point is well taken.

The prosecutor in his opening statement to the jury commented that when the arresting officer approached the defendant, who was pushing a cart filled with tools, he asked the defendant what he had in the cart and the defendant did not respond to the question. The officer placed the defendant under arrest, read him Miranda warnings and again asked him about the tools. The defendant replied he wasn’t going to tell him anything. During the trial the arresting officer testified to the foregoing and the fact that after defendant was arrested and given his Miranda warnings, defendant stated he knew his rights and was not going to say anything. Defense counsel in each instance objected to the remarks and made motions for curative instruction and/or mistrial. The objections and the motions were denied.

It is now established that any comment upon the defendant’s remaining silent or refusing to testify in the face of accusation is an error of constitutional dimension requiring a new trial without consideration of the doctrine of harmless error. Bennett v. State, 316 So.2d 41 (Fla.1975); Davis v. State, 342 So.2d 987 (Fla.3d DCA, released this same day).

We, therefore, reverse defendant’s conviction and remand the cause to the circuit court for a new trial.

Reversed and remanded.


text:
    Johnny Lee THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-288.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.
    Rehearing Denied March 9, 1977.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, and Larry Besser, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., and Harold E. Rosenfeld, Legal Intern, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant, Johnny Lee Thomas, appeals his conviction for robbery and ten-year sentence to the state penitentiary.

Defendant-appellant first contends the trial court erred in allowing the prosecutor to elicit testimony during the cross-examination of the defendant that while the defendant was in custody he remained silent and did not offer exculpatory statements to the police and further erred in permitting the prosecution to comment to the same effect during closing argument to the jury thereby violating defendant’s privilege against self-incrimination. We find this point has merit.

The principle of law is now established that any comment upon an accused’s exercise of his right to remain silent is reversible error without regard to the harmless error doctrine. Bennett v. State, 316 So.2d 41 (Fla.1975); Shannon v. State, 335 So.2d 5 (Fla.1976). This legal principle has recently been interpreted to the point where it is now considered a deprivation of due process to allow the accused’s silence at the time of arrest to be used to impeach the accused’s explanation subsequently offered at trial. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Davis v. State, 342 So.2d 987 (Fla.3d DCA, released this same day).

We, therefore, reverse the defendant’s conviction and sentence and remand the cause to the trial court for a new trial.

Reversed and remanded.


text:
    Andre S. BIALONLENKI, Appellant, v. The SCHOOL BOARD OF DADE COUNTY, Florida, Appellee.
    No. 76-172.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.
    Rehearing Denied Feb. 25, 1977.

      Gershon S. Miller, Miami Beach, for appellant.
    Prank A. Howard, Jr., and Phyllis 0. Douglas, Miami, for appellee.
    Before HAVERPIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on authority of National Education Ass’n v. Lee County Board of Public Instruction, 260 So.2d 206, 210-211 (Fla. 1972), citing Haddock v. Board of Public Instruction for Manatee County, 103 Fla. 1157, 139 So. 147 (1932).


text:
    Rose Ann SCHMIDT, as Personal Representative of the Estate of Donald E. Schmidt, Deceased, Appellant, v. HOWARD JOHNSON COMPANY and Insurance Company of North America, Appellees.
    No. 76-248.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.
    Rehearing Denied Feb. 25, 1977.
    Dan G. Wheeler, Jr., Miami, for appellant.
    Dixon, Dixon, Lane & Mitchell and David Canning, Miami, for appellee.
    Before HENDRY, C. J., and NATHAN, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by the plaintiff, Rose Ann Schmidt, as personal representative of the estate of Donald E. Schmidt, deceased, from a final order of dismissal in a wrongful death action wherein the appellees, Howard Johnson Company and Insurance Company of North America, were the defendants.

We affirm on the authority of Section 440.11, Florida Statutes. Also see Murray v. Osenton, 126 So.2d 603 (Fla.2d DCA 1961).

Affirmed.


text:
    Stanley MORGAN, Appellant, v. The STATE of Florida, Appellee.
    No. 76-352.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.
    Rehearing Denied Feb. 25, 1977.

      Bennett H. Brummer, Public Defender and Paul Morris, Asst. Public Defender and Larry Besser, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., and Sidney M. Pertnoy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant seeks reversal of a conviction based on a jury verdict finding him guilty of first degree murder.

It is appellant’s contention that the state failed to establish that appellant’s arrest was supported by probable cause. Based upon that ground, appellant moved to suppress the physical evidence and oral admissions obtained as a result of the alleged unlawful arrest. The court denied the motion to suppress.

Appellant’s sole point on appeal is that: “The trial court erred in denying the defendant’s motion to suppress where the state failed to establish that the defendant’s arrest was supported by probable cause, thereby violating the defendant’s rights as guaranteed by the Fourth and Fifth Amendments to The Constitution of the United States.”

The ground relied on by appellant for reversal has been carefully considered in the light of the record on appeal, briefs and arguments of counsel. It is our conclusion that no reversible error has been made to appear. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Salas v. State, 246 So.2d 621 (Fla.3d DCA 1971); Rodriquez v. State, 189 So.2d 656 (Fla.3d DCA 1966).

Affirmed.


author: DOWNEY, Judge.

text:
    Grady Lee MERIT, Appellant, v. STATE of Florida, Appellee. Dorothy Battle MERIT, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-1334, 75-1359.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 1977.

      Richard L. Jorandby, Public Defender, and Paul M. Herman, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellants Grady Lee Merit and Dorothy Battle Merit were charged in two counts with possession of cannabis in excess of 5 grams and with possession of drug paraphernalia. Grady was convicted on both counts, but Dorothy was convicted of possession of drug paraphernalia only.

The first point on appeal contends the trial court erred in denying the Merits’ Motion to Suppress. That motion asserted, in sum, that the affidavit upon which a search warrant was issued was defective. In that affidavit a police officer stated that he had supervised and personally observed a successful controlled purchase by a reliable confidential informant of one lid of cannabis at the dwelling occupied by the Merits. The affiant also stated he believed that additional cannabis was contained on the premises, but he stated no facts to support that belief. Appellants assert that, by failing to state when the controlled buy was made so that a detached magistrate could determine that the sale was sufficiently close in point of time to justify the inference that there was contraband presently on the premises, the affidavit failed to demonstrate probable cause to support the issuance of a search warrant.

In order to infer that criminal activity is taking place on certain premises as a result of past criminal activity, it is generally necessary to show that the past criminal activity was recent. As the court pointed out in Hamelmann v. State, 113 So.2d 394 (Fla. 1st DCA 1959):

“It has been generally held, either expressly or by necessary implication, that while there is no strict rule as to the permissible number of days which may elapse between the date of the observed offense and the making of the affidavit upon which the search warrant is based, the nearer the time is at which the observation was made to the time when the affidavit is or was executed, the more probable it is that a conclusion of probable cause may be justified. The number of days which have elapsed between the observation of the alleged offense and the day on which the affidavit is executed is always the main factor, though not the only factor, in determining whether or not sufficient probable cause is shown to support the validity of a search warrant. A review of the decisions from other jurisdictions reveals that an interval of not more than 20 days has never been held so unreasonable as to vitiate the search warrant, while on the other hand, an interval of more than 30 days has always been held such an unreasonable length of time as to negative a presumption of reasonable cause, and to preclude a finding that such cause exists as a basis for a search warrant. Barring extraordinary circumstances which may be shown to exist in any given case, the pattern has been rather clearly established in courts of this country that if the observation of the alleged offense is not farther remote than 30 days from the making of the affidavit and issuance of the warrant, and finding that there exists probable cause will not be disturbed. The contrary appears where the elapsed time is more than 30 days from the date of the observation to the date on which the affidavit is executed and the warrant issued.”

Rodriguez v. State, 284 So.2d 1 (Fla. 2d DCA 1973), may perhaps be categorized as a ease involving the “extraordinary circumstances” referred to in Hamelmann, supra.

For aught the affidavit in question shows, the controlled buy could have taken place six months or a year prior to the date of the affidavit. Were that the case, certainly no probable cause would be shown to justify the inference of present criminal activity on the premises. This conclusion does not conflict with the footnote comment in State v. Lewis, 336 So.2d 395 (Fla. 4th DCA 1976), because implicit in that comment is the proposition that an affidavit for search warrant must state a date for the controlled buy which is not remote in time from the date of the affidavit, since such was the situation in the case of State v. Gieseke, 328 So.2d 16 (Fla.1976), upon which this court based its decision in the Lewis case.

In view of the foregoing we would reverse the judgments in this case based on appellants’ Point I but for the decision of the Supreme Court of Florida in Borras v. State, 229 So.2d 244 (Fla.1969). In that case the defendant attacked the affidavit for search warrant on the ground that the controlled buy described in the affidavit did not show the date of the buy so that the Magistrate could determine its relevance to the date of the application for the search warrant. This contention was rejected in the Borras opinion as follows:

“Appellant also contends that the evidence seized as a result of the search of his apartment should have been suppressed because the affidavit upon which the warrant was issued was defective. The defect alleged is the failure to state the date or dates when marijuana was sold to the confidential informer and possessed by appellant. The affidavit in question uses the present tense alleging a violation which was continuing right up to the time the warrant issued. Under the circumstances the failure to specify a date does not render the affidavit defective.” 229 So.2d 246.

A comparison of the affidavit referred to in Borras with the one under consideration in this case demonstrates they are very similar. They each describe an undated controlled buy and they each make the bald, unsupported statement that, based upon the undated controlled buy, the affiant believes there are controlled substances on the premises. We would not have thought either affidavit sufficient to show probable cause to issue the warrant. However, since the Supreme Court has said the affidavit in Borras is sufficient we are bound to hold the affidavit in this case also sufficient.

One further contention requires consideration. Appellant Dorothy Battle Merit was found not guilty of Count I, possession of cannabis, but guilty of Count II, possession of controlled substance paraphernalia. The trial court adjudicated Dorothy guilty of “possession of controlled substance paraphernalia, to wit: pipes” and placed her on probation for a period of “Three (3)”, obviously meaning three years. Under the circumstances of this case, the maximum penalty allowable under Section 893.13(3)(b), Florida Statutes 1975, was that for a misdemeanor of the first degree, as provided in Section 775.082 or Section 775.083, Florida Statutes 1975. See Turner v. State, 329 So.2d 360 (Fla. 1st DCA 1976). On remand the trial court should amend the period of probation of appellant Dorothy Battle Merit to accord with the holding in Watts v. State, 328 So.2d 223 (Fla. 2d DCA 1976).

AFFIRMED IN PART and REVERSED IN PART, and REMANDED WITH DIRECTIONS.

MAGER, C. J., and DAUKSCH, J., concur.