text:
    Wayne WOODS v. STATE.
    6 Div. 575.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    Rehearing Denied Nov. 24, 1981.

      J. Louis Wilkinson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Cedric R. Perry, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

The appellant was indicted by a Walker County Grand Jury for unlawfully selling tablets containing methaqualone, a controlled substance. A Walker County Circuit Court jury convicted the appellant of violating Alabama’s Uniform Controlled Substances Act of 1971. The jury assessed a $25,000.00 fine against appellant and the trial court sentenced him to fifteen (15) years imprisonment.

This case arose out of an undercover operation conducted by United Narcotics Detail Operation, commonly known as UNDO, a combined undercover police investigation unit investigating drug violations. The unit in carrying out its investigative duties often relies on the help of anonymous informers. One such informer was utilized in the case at bar, and such use is the sole basis of appellant’s appeal.

The record shows that, on July 14, 1979, undercover agents Robert Lamm, Charles Jordan, George Howze, and Norman Harris drove to Godfrey’s Restaurant in Sumiton, Alabama, a small community located in Walker County. The officers were not in uniform but were dressed in street clothes, posing as men interested in buying drugs as part of the undercover operation.

Officers Lamm and Jordan entered the restaurant while Howze and Carson remained outside providing cover in case of an altercation. Lamm testified that, soon after he and Officer Jordan sat down, the defendant entered the restaurant, approached their table, and introduced himself as “Wayne”.

The man identifying himself as “Wayne” stated that he was “ready to do the deal.” Lamm and the person identifying himself as “Wayne” proceeded to a pay telephone in the restaurant, while the informer remained at the table, to call “Wayne’s” accomplice and some other undercover agents who were with the accomplice at the Passport Inn in Birmingham. “Wayne” was to call when the drug deal was completed in order for “Wayne’s” accomplice to receive payment for the drugs from the undercover officers in Birmingham.

Officer Jordan testified that, after the first phone call, Lamm, “Wayne”, and he walked outside to the restaurant parking lot where the actual drug transfer occurred. The record shows that the man identified as “Wayne” went to a 1978 Blazer vehicle, opened the rear of the Blazer and removed two pieces of luggage. He then opened the larger of the two pieces in which Officer Lamm observed a large quantity of white pills in plastic bags. Lamm then inspected the pills. The two men closed the luggage and carried it to the officers’ pickup truck. Importantly, the informer, who remained in the restaurant, did not witness the actual drug transaction in the parking lot.

After the drug transfer, the three men re-entered the restaurant. The man identifying himself as “Wayne” told Lamm that he did not have the agreed upon 50,000 pills, but only 40,000. Lamm and “Wayne”, out of the presence of the informer and Jordan, sat back down and re-figured the price for the drugs. The two men walked back to the pay phone and again called the accomplice and the undercover agents with him in Birmingham to relay the change in price. Lamm and Jordan shook hands with “Wayne” and left. They then carried the pills to the Jefferson County Sheriff’s Office where a qualified criminologist with the Department of Toxicology discovered that the pills contained methaqualone, a controlled substance. The accomplice in Birmingham was immediately arrested and defendant Wayne Woods turned himself in a few weeks later.

During the course of the trial, the appellant attempted to elicit the identity of the informer, once by motion and once in the form of questioning which was objected to and the objection sustained. The appellant contends that the trial court committed reversible error in not forcing disclosure of the informant’s identity.

Both appellant and appellee cite the U.S. Supreme Court case Roviaro v. U.S., 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). The Roviaro court, in establishing a guide .used to determine whether a government informer is privileged from testifying, held that the courts are to balance the public interest of protecting valuable sources of criminal information with the defendant’s right to a fair trial. The determination is to be made on a case-by-case basis depending on the particular facts and circumstances in each case.

The facts are not the same in the case at bar. The most significant difference between the two cases is the fact that the informer in the present case was not present at the drug transfer and thus did not witness the actual occurrence of the alleged crime. The State presented evidence that showed that the informer did not participate in the initial conversation between the officers and the man identified as “Wayne”, did not witness the actual crime being committed (the transfer of drugs in the parking lot of the restaurant), and was not present during the two phone calls made by Woods and Lamm to the accomplice in Birmingham.

A case cited by appellee, Kilgore v. State, 280 So.2d 206, 50 Ala.App. 501 (1973), is almost on point. In that case, an undercover agent accompanied by a female known only as “Betty” drove to a service station operated by the defendant. The defendant approached the car, was introduced by the informer and asked the agent what he needed. The agent asked the defendant if he had any “speed”, to which the defendant replied that he had some various illegal drugs and quoted the going price of the drugs. After these price negotiations the agent gave his order. The agent, leaving the informer behind, got out of the car and walked with the defendant into the service station. The actual drug exchange then occurred, out of the informer’s sight.

The court stated that the primary policy reasons in forcing disclosure arises in situations where the accused alleges that he was entrapped into committing the alleged crime. The court also stated that “fundamental requirements of fairness compels disclosure in such cases where the informer plays a major and active part in bringing about the sale of narcotics and continues an active participant therein.” Kilgore v. State, supra.

The court in Kilgore found that, because the defendant denied the drug transfer ever took place, the defense of entrapment was not available since the defense required that the defendant acknowledge the occurrence. Because the defendant did not properly raise a defense of entrapment, the major policy reason behind disclosure was absent. Therefore the court refused to force disclosure of the informant.

Appellant in the present case also did not affirmatively raise the defense of entrapment. Again, since the defense of entrapment was not raised, the primary policy reason in forcing disclosure was absent.

Also, as in Kilgore, the informer was not an active participant. The facts as to the informant in the present case are almost identical to the facts in Kilgore. As discussed above, and as in Kilgore, the informer in the present case did not witness any occurrence besides the initial negotiating, the most important fact considered by the court in Kilgore in denying disclosure. The informer in the present case did not even introduce the defendant to the undercover agent, unlike Kilgore.

The appellant cites Davis v. State, 287 So.2d 243, 51 Ala.App. 532 (1973), and Turner v. State, 298 So.2d 45, 53 Ala.App. 114 (1974), as authority for its position that the informer’s identity should be disclosed. However, the two cases are distinguishable. In Turner, unlike the present case, the informer was not only present when the drugs were transferred, the informer also received part of the contraband. In Davis, a robbery case, the testifying officer was not a witness to the crime. He was informed of the robbery one month after its commission by an informer who was also an eyewitness. Also, unlike the present case, the arresting officer would not have been able to arrest the defendant without the informer’s accusations of defendant’s involvement. The most recent case decided by this court on informer disclosure is Self, alias v. State, Ala.Cr.App., [Ms. January 20, 1981] cert, pending. The court did find reversible error in the trial court’s nondisclosure of a government informer. However, as in Davis and unlike the present case, the informer was an active participant and eyewitness to the transaction.

The appellant, citing Davis and Turner, also contends that more than a question of the informer’s participation is involved. He argues that the present case raises an issue of identity of the man who introduced himself as “Wayne” to the undercover agents in the restaurant on the day of the drug transfer. Appellant further argues that the informer was the only witness who would properly identify the man calling himself “Wayne”.

The record does not support this contention. Officer Jordan testified that he had seen the defendant before the drug transfer and that he was the same person as the man who sold the drugs. Both Lamm and Jordan emphatically testified that the defendant in the courtroom was the same man who identified himself as “Wayne” in the drug transfer. In Davis, as stated above, the testifying officer was not even present at the occurrence of the crime and the victims of the robbery did not identify the defendant until after the informer had tipped off the officer. The defendant in Kilgore testified that he was not present at the time of the alleged crime, but, even though the informer was present when the undercover agent met the defendant, this court refused to force disclosure.

The appellant emphasizes the fact that Officer Jordan followed defendant’s Blazer in order to arrest the defendant, but that the defendant was not the driver of the Blazer. Appellant contends that this was a mistaken identity and cast a doubt on Jordan’s identification of Woods as the man who transferred the drugs. This contention has little merit. The record established that Jordan never personally attempted to arrest the driver, but began following the vehicle at a distance of two hundred yards. It is not unreasonable that Jordan would not be able to recognize anyone driving the Blazer from this distance. Jordan also indicated that, seeing the defendant’s Blazer, not seeing someone he thought was the defendant, was the reason for following the vehicle in order to make an arrest.

In light of the fact that the issue of forcing informer disclosure is a case-by-ease determination dependent on the facts of each case, and in light of the facts in the present case, the trial court did not commit reversible error in denying appellant’s motion to force disclosure of the informer. McDaniel v. State, Ala.Cr.App., 389 So.2d 524, cert. denied, Ala., 389 So.2d 527 (1980).

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Ex parte Wayne WOODS. (Re: Wayne Woods v. State of Alabama).
    81-221.
    Supreme Court of Alabama.
    Jan. 22, 1982.
   MADDOX, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.


author: BOOKOUT, Judge.

text:
    Garland Keith CARPENTER v. STATE.
    8 Div. 534.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    Rehearing Denied Nov. 24, 1981.
    Wesley M. Lavender, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   BOOKOUT, Judge.

First degree theft; sentence: life imprisonment (habitual offender).

On August 4,1980, the appellant’s father, Garland Bailey Carpenter, returned home from work and found that someone had entered his home and taken an Uncle Ben folding knife, a .22 caliber pistol and a .38 caliber Tarus nickel-plated revolver with wooden handles and a four-inch barrel. Also missing were some car keys and a 1979 Ford pickup truck. The victim described the truck as “walnut” in color, being “between a gold or brown.” He next saw his truck about a week later at the Georgiana Police Department.

Around 8:30 p. m. on the date of the theft, Georgiana Police Officer Jimmy Lee Matthews received a police radio dispatch that someone in a gold-colored Ford pickup truck had obtained 21 dollars’ worth of gasoline without paying for it from a service station about thirteen miles north of Geor-giana. Shortly thereafter, Matthews spotted a vehicle matching that description speeding south on highway 1-65. He stopped the truck and identified the appellant as the driver. Matthews arrested the appellant for speeding and, on detecting the smell of alcohol on the appellant, he took him to the city hall where he was subsequently charged with driving while intoxicated.

The obvious inexactness of the State’s proof is challenged on appeal. The only partially specific identification of the truck appears in the record in the testimony of Investigating Officer John Bradford concerning the license tag number. He said, “I believe the letters were RSH, but I am not sure what the numbers were.” The prosecutor never introduced the vehicle identification number or a complete license tag number into evidence.

The prosecutor elicited that in the truck were found a “.38 pistol and a .22 and some type of knife.” No precise description of those items was elicited to correspond to the specific description of the stolen items. Whether the knife was an Uncle Ben folding knife or whether the .38 pistol was a .38 caliber Tarus nickle-plated revolver with wooden handles and a four-inch barrel is left to speculation.

The prosecutor questioned Officer Matthews on direct examination relating to whether an officer from the Decatur Police Department had come to Georgiana concerning the theft of the truck:

“Q. Did he have a warrant for the Defendant there, Garland Keith Carpenter, for first degree theft of this 1979 Ford pickup truck that you had stopped?
“A. Yes, sir, I think so. I didn’t see after all that — I was — he was talking to the captain, and I didn’t see the warrant. But I don’t know — what I mean, he had called in and said the truck was stolen.”

Matthews’s last comment came into evidence without objection and without a motion to exclude.

In further attempting to establish that the truck in Georgiana was the one stolen in Decatur, the prosecutor established nothing:

“Q. Did Mr. Garland Bailey Carpenter seated here at the table, did he come down to Georgiana later on and identify the truck as being his and take this truck into his custody?
“A. I really don’t know. Now, see, I got off work at 6:00 o’clock. The chief — they handled that. I don’t know who come [sic] and picked the truck up.”

However, the prosecutor was able to elicit the following hearsay testimony without objection:

“Q. And when you checked with the Decatur Police Department, you found that this truck was reported stolen?
“A. Yes, sir, they called down there — after some phone calls were made and said the truck was stole [sic], to hold onto it.”

The prosecutor next questioned Decatur Police Officer Robert Clark concerning the recovery of the truck in question:

“Q. .. . Did you have occasion on Monday, August the 4th, 1980, to participate in the investigation of the theft of one 1979 Ford pickup truck belonging to Mr. Garland Bailey Carpenter seated here at the table with me?
“A. Yes, sir.
“Q. During the course of your investigation, did you receive information that the truck had been recovered in Georgiana, Alabama?
“A. Yes, sir, I did.
“Q. . . . Did you obtain a warrant for one Garland Keith Carpenter wherein he was charged with the first degree theft of one 1979 Ford pickup truck belonging to Garland Bailey Carpenter?
“A. Yes, sir, I did.
“Q. After obtaining this warrant, what, if anything, did you do?
“A. Myself and Sergeant Richard Cro-well proceeded to Georgiana Police Department where we placed Mr. Garland Keith Carpenter under arrest and brought him back to Decatur.
“Q. Did you inspect the vehicle at the Georgiana Police Department?
“A. I didn’t go through it. I saw it.
“Q. Did you find this to be the vehicle, the property of Mr. Garland Bailey Carpenter, which had been reported stolen?
“A. Yes, sir.”

Defense counsel asked no questions of the witness, and the State rested its case.

After the State had rested its case, defense counsel moved for a “directed verdict of acquittal” on the ground that the State failed to prove the truck recovered from the appellant’s possession was the one stolen in Decatur from the appellant’s father. Treating the above as a motion to exclude the State’s evidence, we find no error on the part of the trial court in denying it. While this case is hardly a model for prosecutors to follow in proving theft, a prima facie case was nevertheless proved by way of unobjected-to hearsay and circumstantial evidence. We summarize our conclusions as follows:

(1) Georgiana Police Officer Jimmy Lee Matthews identified appellant as driving the truck in question. He testified that Decatur Police Officer Robert Clark “had called in and said the truck was stolen.” Matthews further related that after checking with the Decatur Police Department “they called down there — after some phone calls were made and said the truck was stole [sic], to hold onto it.” None of this testimony was objected to. Hearsay evidence is not inherently inadmissible and must be challenged by a specific objection. Small v. State, 348 So.2d 507 (Ala.1977).

(2) Decatur Police Officer Robert Clark testified that he received information that the stolen truck in question had been recovered in Georgiana. He said he went to Georgiana the next day after the theft and brought the appellant back to Decatur. He saw the truck in Georgiana and found it to be the vehicle stolen from Garland Bailey Carpenter. This testimony likewise came in without objection.

(3) Circumstantial evidence which could be considered by the jury was the fact that the general description, make and year model of the truck recovered matched that of the stolen vehicle. Inside the recovered vehicle were two guns matching the caliber of those stolen along with a knife. Although no further specific descriptions of the guns and knife were shown, their general similarity to the items stolen and their mere presence in the truck add weight to the State’s case when considered along with other evidence.

Finally, the circumstances under which the appellant was arrested and the fact that he is the son of the victim and had access to the victim’s house and knowledge of the victim’s property could be taken into consideration by the jury in reaching a verdict. Circumstantial evidence is given the same weight as direct evidence so long as it points to the accused as the guilty party. Lark v. State, 348 So.2d 539 (Ala.Cr.App. 1977).

AFFIRMED.

All the Judges concur.


author: TORBERT, Chief Justice.

text:
    Ex Parte: Garland Keith CARPENTER. (Re: Garland Keith Carpenter v. State of Alabama.)
    81-241.
    Supreme Court of Alabama.
    Jan. 22, 1982.
   TORBERT, Chief Justice.

WRIT DENIED — NO OPINION.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.


author: PER CURIAM.

text:
    Roger Scott THOMAS v. STATE of Alabama.
    2 Div. 238.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 1981.
   PER CURIAM.

The judgment of the conviction is reversed and the cause remanded for a new trial on mandate of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, 396 So.2d 645 (Ala.1981), and Ex parte Thomas, 406 So.2d 402 (Ala.1981).

REVERSED AND REMANDED.

All the Judges concur.


author: DeCARLO, Judge.

text:
    Terry Lee EPPS v. STATE.
    8 Div. 526.
    Court of Criminal Appeals of Alabama.
    Dec. 29, 1981.

      Clark E. Johnson, III, Arab, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   DeCARLO, Judge.

Theft, second degree; four years.

On or about July 20, 1980, two window air conditioners were taken from the Wesley Chapel Church of God in Marshall County, Alabama. After a reward was offered for information leading to the return of the air conditioners, appellant’s wife called a member of the church and said she could produce the air conditioners if the church would not notify the police. After arrangements were made for the return of the air conditioners, the appellant’s wife took the air conditioners to a church member’s house where sheriff’s deputies placed her under arrest. The appellant, claiming that he and his wife had found the air conditioners, heard of the reward, and wanted to return them, was subsequently arrested. The appellant made a statement to law enforcement officers which was introduced at trial, along with the testimony of a co-defendant, Thomas Boozer.

Investigator A. G. Lang of the Marshall County Sheriff’s office testified he saw the air conditioners when they were in the trunk of appellant’s car and they were “fairly new.” Further, he stated he had seen similar air conditioners advertised, new and used, and it was his opinion that the combined value of the two units would exceed five or six hundred dollars.

I

The appellant contends that the trial court committed reversible error when it refused to allow Thomas Boozer, the co-defendant, to invoke his Fifth Amendment right not to testify after Boozer had pleaded guilty but before he had been sentenced.

Boozer was called by the prosecution as a witness against the appellant and, with his attorney present, he asserted his privilege against self-incrimination. His request to remain silent was denied by the trial court on the grounds that Boozer had waived his right against self-incrimination when he pleaded guilty to the offense charged.

In Beauvoir Club v. State, 148 Ala. 643, 42 So. 1040 (1907), the Supreme Court of Alabama stated:

“It is undoubtedly the law that a witness cannot be compelled to answer any question the answer to which would tend to incriminate him, or would constitute a necessary link in the chain of testimony sufficient to convict him of a criminal offense.... But the privilege is personal to the witness, and cannot be claimed for him by a party to the suit. . . . and when it is claimed by the witness, and the court rules the witness must answer, and he does answer without further protest from him, notwithstanding the defendant objects and excepts to the court’s ruling, the evidence is not illegal as to the defendant, and he cannot review the action of the court here. The witness might have persisted in his refusal to answer, and, if held in contempt, he (the witness) might present the action of the court for review by certiorari, as was done in the Boscowitz Case, [Ex parte Boscowitz, 84 Ala. 463, 4 South 279, 5 Am.St.Rep. 384].” [Emphasis added, citations omitted.]

Also in Gamble, McElroy’s Alabama Evidence, § 376.03 (3d ed. 1977), we find:

“An erroneous denial by the trial court of a claim of the privilege by a witness who himself is not a party is not error of which a party can complain on appeal.”

Under the foregoing authorities, Boozer was the only one who had the right to invoke the privilege and the only one who had a right to complain that the trial court’s action was improper. The appellant could not claim the privilege for Boozer, who was not a party in the case being tried, and cannot maintain error on this point on appeal. During trial the appellant made no objection to the court’s ruling regarding Boozer’s privilege.

II

The appellant insists that the trial court committed reversible error when it admitted incriminating out of court statements made by the appellant’s wife. He argues that the statements of the wife were hearsay and that the wife’s privilege not to testify against her husband was violated.

The complained of testimony appears as follows:

“A. [By Deputy A. G. Lang] I told Mr. Epps in the presence of his wife and Mr. Teal that his wife had told us—
“MR. JOHNSON: Judge, I just object to what the wife said at that time. It is clearly based on the truth of what she said, Judge.
“THE COURT: I think not. Overruled. “A. His wife had told us about the air conditioners — the two air conditioners— that they were stolen from a church. She named the two people — Mr. Epps was one of them and Mr. Boozer was the other person who had the air conditioners in their presence and brought them to her house.
“Q. All right. After you told Mr. Epps what his wife had told you, did he at that time make any statements to you?
“A. Mr. Epps made the statement at that time — he said, that is right.”

The hearsay rule applies only to a statement offered for the truth of its contents. Meriweather v. Crown Investment Corp., 289 Ala. 504, 268 So.2d 780 (1972). A statement offered for some purpose other than to prove the truth of its factual assertions is not hearsay. Bryant v. Moss, 295 Ala. 339, 329 So.2d 538 (1976). See also Cory v. State, Ala.Cr.App., 372 So.2d 394 (1979).

In the present case, the trial judge made it clear that the statement by the wife was not being admitted to prove the truth of her declaration, but to show the appellant’s response. From the record:

“THE COURT: Gentlemen, for the record, although we have gone into some of the conversation of Mrs. Epps directly to Mr. Lang, that obviously would be hearsay. But I am accepting that statement from Mr. Lang to Mr. Epps in the exception to the hearsay rule, being not admitted to be the truth, even if she had not said anything. Even if Mr. Lang was using trickery, which of course, I am not implying that he was, the fact that he made this statement saying that it had come from Mrs. Epps and Mr. Epps had made a response to that statement is the reason this testimony will be admissible.”

The record also indicates that, pri- or to making their statements, both Mr. and Mrs. Epps had been warned of their constitutional rights per Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After being informed of his rights, not only did Mr. Epps not disavow his wife’s statement as recounted by Deputy Lang, but he affirmed it as his own. Therefore his response was a confession, not dependent for its admissibility on the truthfulness of his wife’s statement, but hinging upon all the standard voluntariness predicates mandated by Miranda v. Arizona, There is no contention here that appellant’s statement was not knowingly and voluntarily made, and our own examination of the record convinces us that the Miranda predicates were properly laid.

In our judgment, the marital privilege for confidential communications, see Ala.Code § 12-21-227 (1975), has no application here. The privilege exists only for confidential communications or “acts performed with the confidence of the marriage in mind.” Arnold v. State, Ala., 353 So.2d 524, 527 (1977). The marital communication loses its confidential character (and thus its privilege status) if it is made in the presence of third parties. Caldwell v. State, 146 Ala. 141, 41 So. 473 (1906).

In the present case, Deputy Lang’s rendition of Mrs. Epps’ statement indicated that “Mr. Epps... and Mr. Boozer... had the air conditioners. . . and brought them to her house.” Assuming that appellant’s bringing the stolen air conditioners to the house where his wife could see them would qualify as an “act performed with the confidence of the marriage in mind,” the act lost its confidential and privileged character when it was undertaken in the presence of the co-defendant, Boozer. See Arnold v. State, supra (defendant’s telephone conversation with third-party accomplice, and overheard by defendant’s wife, not privileged). We therefore find no error in the trial court’s ruling on the admissibility of Deputy Lang’s testimony.

Under the facts presented in this case the jury could reasonably conclude that the appellant was guilty of the offense charged.

We have examined the record and no error appears. Therefore the judgment and conviction by the Marshall Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: HARRIS, Presiding Judge.

text:
    Jesse David JETT v. STATE.
    7 Div. 790.
    Alabama Court of Criminal Appeals.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.
   HARRIS, Presiding Judge.

AFFIRMED — NO OPINION.

REHEARING DENIED — NO OPINION.

All the Judges concur.

Writ denied, Ala., 408 So.2d 566.


text:
    Ex parte Jesse David JETT. (In re: Jesse David Jett v. State of Alabama).
    81-53.
    Supreme Court of Alabama.
    Jan. 8, 1982.
    Ira De Ment and John A. Henig, Jr., Montgomery, for petitioner.
    Charles A. Graddick, Atty. Gen., for respondent.
   PER CURIAM.

Petition for writ of certiorari is denied 408 So.2d 565 on the authority of Ex parte Ellison, 410 So.2d 130 (Ala.1982), released this date.

WRIT DENIED.

TORBERT, C. J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur.


author: ADKINS, Justice.

text:
    Nile M. MARRIOTT, Jr., and Nelson A. Faerber, Petitioners, v. VENETIAN COVE CLUB, INC., a Florida corporation, and Herbert A. Elliot, an individual, Respondents.
    No. 57438.
    Supreme Court of Florida.
    July 10, 1980.
    J. Bert Grandoff and John R. Newcomer, Jr. of Yado, Keel, Nelson, Grandoff, Capser, Bergmann & Newcomer, Tampa, for petitioners.
    A. Dean Hoolihan of the Law Offices of Donald T. Franke, Clearwater, for respondents.
   ADKINS, Justice.

Reversed. See Arthur R. Pomponio v. The Glaridge of Pompano Condominium, Inc., etc., et al., 378 So.2d 774 (Fla.1980). It is so ordered.

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


text:
    STATE of Florida, Petitioner, v. John Bill FAIRWEATHER, Respondent.
    No. 60852.
    Supreme Court of Florida.
    Nov. 25, 1981.
    Rehearing Denied Feb. 8, 1982.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for petitioner.
    Melanie Ann Hines, Asst. Public Defender, Tallahassee, for respondent.
   PER CURIAM.

Affirmed. 400 So.2d 1279. Murray v. State, 403 So.2d 417 (Fla.1981).

ADKINS, A. C. J., and BOYD, OVER-TON, ALDERMAN and McDONALD, JJ., concur.


author: ALDERMAN, Justice. SUNDBERG, Chief Justice,

text:
    Victor ADOUE, Appellant, v. STATE of Florida, Appellee. Jerome WEXLER, Appellant, v. STATE of Florida, Appellee.
    Nos. 56279, 56222.
    Supreme Court of Florida.
    Dec. 3, 1981.
    Rehearing Denied Feb. 8, 1982.

      Larry G. Turner of Turner & Morris, Gainesville, for Adoue.
    Selig I. Goldin of Goldin & Cates, Gaines-ville, for Wexler.
    Jim Smith, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   ALDERMAN, Justice.

Appellants, Victor Adoue and Jerome Wexler, having entered pleas of nolo con-tendere and reserved their rights of appeal, were each sentenced in accordance with their negotiated plea agreements for the offense of bringing cannabis into the State of Florida. We have jurisdiction of these consolidated appeals because the trial court upheld the constitutionality of section 893.-13(l)(d), Florida Statutes (1977), a provision of Florida’s Comprehensive Drug Abuse Prevention and Control Act. Art. V, § 3(b)(1), Fla.Const. (1972).

Appellants argue that section 893.13(l)(d) constitutes an unconstitutional attempt to delegate legislative authority to the federal government in violation of article II, section 3, and article III, section 1 of the Florida Constitution, that the trial court erred in denying their motion to dismiss the charges against them, and that the war-rantless search of their airplane and the seizure of marijuana was unreasonable. We find no merit to any of these arguments, and we affirm the judgment of the trial court.

Factually, it appears that one drizzly evening a twin-engine Beechcraft airplane landed at the Gainesville Municipal Airport without first obtaining clearance from the air traffic controller as required by federal regulation under the existing visibility conditions. The air controller saw the plane taxi to the north ramp and park in the vicinity of the Sopwith Camel, Inc., a private field-based operation. The air controller called the pilot by radio to determine whether there was an emergency or radio failure. Receiving no response from the pilot, the air controller called the Sopwith Camel and requested them to have the pilot call the air control tower when he came into the hangar office. When the pilot did not appear, two employees from the Sopwith Camel went to the parking area immediately to the east of the hangar to see if they could locate the pilot. The employees did not find the pilot at the plane but in investigating his whereabouts detected what they believed was the odor of marijuana emanating from inside the aircraft. They notified the air controller who in turn notified the police.

Police officers arrived a short time later and were escorted to the plane by Sopwith Camel employees. With the aid of a flashlight, the officers examined the plane and through its window observed a number of white plastic garbage bags inside the plane. The officers testified that they saw a tear in one of the bags located near the window which revealed a green, leafy substance they believed, based on their law enforcement training and experience, to be marijuana. After seeing the rip in the bag through the window, one of the officers opened the door to the plane, but he did not enter the plane at that time. The officers then secured the airplane and awaited the arrival of the narcotics unit. Then, when the additional officers arrived, they entered the airplane and seized a large cargo of marijuana.

Initially, appellants argue that section 893.13(l)(d) is unconstitutional because it constitutes an unlawful attempt to delegate legislative authority to the federal government in violation of article II, section 3, and article III, section 1 of the Florida Constitution. Section 893.13(l)(d) provides in pertinent part:

(d) It is unlawful for any person to bring into this state any controlled substance unless the possession of such controlled substance is authorized by this chapter or unless said person is licensed to do so by the appropriate federal agency. (Emphasis added).

Appellants maintain that this emphasized portion purports to authorize the federal government to define criminal acts in Florida in contravention of the long-standing principle that the legislature may adopt existing but not future legislation or administrative rules of jurisdictions outside of Florida. Freimuth v. State, 272 So.2d 473 (Fla.1972).

The delegation doctrine is grounded on the constitutional maxim that the legislature has the sole authority and responsibility to make the laws. State v. Atlantic Coast Line Railway Co., 56 Fla. 617, 47 So. 969 (1908). Unless the constitution otherwise authorizes, the legislature cannot delegate this responsibility to any other person or body. State v. Welch, 279 So.2d 11 (Fla.1973). The legislature may, as it has in the past, adopt the regulatory and statutory standards of the federal government, but these standards must be in existence at the time of the adoption. Any attempt to incorporate a law as part of this state’s body of laws prior to its creation by the appropriate federal authority is an unconstitutional delegation of the legislative power. Florida Industrial Commission v. State, 155 Fla. 772, 21 So.2d 599 (1945).

We hold that the challenged statutory provision does not constitute an unlawful delegation of legislative authority. Florida’s comprehensive drug abuse act enumerates at length the substances which are controlled and describes in detail the criminal offenses relating to these substances. The act also delineates those persons who are excluded from criminal liability. In various sections of the act, practitioners, pharmacists, hospitals and others have been excluded from liability. Section 893.-13(l)(d) excludes those persons holding controlled substances pursuant to a federal license. The legislature, by allowing this exclusion, does not delegate substantive lawmaking ability to the federal government any more than it delegates that ability to a medical practitioner under section 893.13(l)(e). The conduct proscribed by the statute involved here has been completely defined by the Florida legislature; the range of criminality does not change in the future with shifting federal standards.

Appellants next contend that the charges against them should have been dismissed because the definitional section of chapter 893 proscribes only the species of cannabis sativa, L., and the state is unable to prove that the cannabis seized in this case is this species and not one of several separate species of cannabis. We have previously rejected this argument in our recent decision of Hamilton v. State, 366 So.2d 8 (Fla.1978). We hold that section 893.02(2), Florida Statutes (1977), defining “cannabis” as the species cannabis sativa, L., and “all varieties thereof” includes all species of the cannabis plant.

Finally, appellants contend that the marijuana was illegally seized because it was not seized pursuant to a search warrant and that no exigent circumstances justified the warrantless search. The trial court denied the motion to suppress the marijuana seized from the airplane on the basis of the “plain view” exception to the warrant requirement. It concluded that the officers saw what they thought or believed to be, in their training and experience, marijuana. The “plain view” exception, however, does not apply to the factual situation before us. Here we have what would be considered a pre-intrusive situation under our recent analysis in Ensor v. State, 403 So.2d 349 (Fla.1981), where the officers observed contraband in “open view.”

In Ensor, we explained the confusion engendered by the courts in their varying usages of the concept of plain view. Plain view, we said, is often confused with the concept of open view. The plain view doctrine as an exception to the warrant requirement as described in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), provides the reasonableness for a search and seizure and applies where an officer observing contraband is legally inside, by warrant or warrant exception, a constitutionally protected area when he inadvertently observes contraband within the protected area. It is in this situation that an officer may constitutionally seize contraband in “plain view” from the constitutionally protected area. The pre-intru-sive situation exists where an officer is located outside a constitutionally protected area and is looking inside that area. In Ensor, we determined that if an officer observes contraband in this situation in “open view,” this only furnishes him probable cause to seize the contraband. Either he must obtain a warrant or an exception to the warrant requirement must exist to justify his entry into the protected area and his seizure. The police officers in Ensor saw a firearm in “open view” through an open ear door. This viewing, we said, gave them probable cause to believe that a felony was being committed. Since the officers had no warrant, the question, therefore, remained as to whether some exception to the warrant requirement justified the search and seizure. We held that under the Carroll exception for movable vehicles, the officer was legally justified in seizing the firearm from the automobile.

In the present case, when the officers looked through the window of the airplane and saw the marijuana, they stood in a nonconstitutionally protected area where they had a lawful right to be. In fact, they were where they had a duty to be since it was their responsibility to investigate the surreptitious landing of the plane and the apparent disappearance of the pilot. The airplane had landed without communicating with the tower in violation of federal air regulations. The air controller, unsuccessful in making contact with the pilot of the plane after it had landed, properly called the local police. During the resulting investigation, the officers saw the marijuana in “open view.” See Ensor v. State. At this point, the officers had probable cause for the search.

The warrantless seizure of the marijuana in the airplane was entirely proper under the doctrine of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), which has been expressly adopted as the law of this state. § 933.19, Fla. Stat. (1977). In Carroll, the Supreme Court of the United States held that automobiles or other vehicles may be searched without a warrant where an officer, authorized to search, has probable cause for believing that the vehicle is carrying contraband. The Court acknowledged a necessary difference between the search of a structure where a warrant normally must be obtained and the search of a vehicle where, because of the mobility of the vehicle, it is not practicable to secure a warrant.

The fact that the plane was parked and had been secured by the police does not render the Carroll exception to the warrant requirement inapplicable. In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the Supreme Court addressed the issue of whether a warrantless search of defendant’s automobile parked outside the police station was reasonable under Carroll. Holding that a warrant was not a necessary prerequisite to the search, the Supreme Court said:

Only in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search. Carroll, supra, holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the ear’s contents may never be found again if a warrant must be obtained. Hence an immediate search is constitutionally permissible.
Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the “lesser” intrusion is permissible until the magistrate authorizes the “greater.” But which is the “greater” and which the “lesser” intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.
On the facts before us, the blue station wagon could have been searched on the spot when it was stopped since there was probable cause to search and it was a fleeting target for a search. The probable-cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained. The same consequences may not follow where there is unforeseeable cause to search a house. Compare Vale v. Louisiana, ante, p. 30 [399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409], But as Carroll, supra, held, for the purposes of the Fourth Amendment, there is a constitutional difference between houses and cars.

399 U.S. at 51-52, 90 S.Ct. at 1981-1982.

Recently, in Gluesenkamp v. State, 391 So.2d 192 (Fla.1980), we relied on the rationale of Chambers v. Maroney as the basis for rejecting defendant’s contention that no exigent circumstances justified a warrant-less search of the van because he and his companion had been detained and were not in a position to drive the van out of the jurisdiction. The Court said: “We see no reason why the police should be required to wait until an attempt is made to move a vehicle before they are allowed to search it.” 391 So.2d at 201.

The present case is not analogous to Robbins v. California,- U.S.-, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), where the Supreme Court held the warrantless opening of two packages found in the luggage compartment of a station wagon to be an unreasonable search and seizure violative of defendants’ fourth amendment rights. In Robbins, the Supreme Court said that the Carroll exception does not justify the war-rantless search of a closed piece of luggage or other closed container found inside an automobile. Explaining that the “automobile exception” is supported not only on the basis of the inherent mobility of a vehicle but also by the diminished expectation of privacy surrounding the automobile, the Court concluded that no such diminished expectation of privacy characterized the luggage contained in the automobile. The Court acknowledged, as it had earlier in Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), however, that not all containers and packages found by the police deserve the full protection of the fourth amendment. Some containers by their very nature cannot support a reasonable expectation of privacy because from their outward appearance alone their contents can be inferred. “[I]f the distinctive configuration of a container proclaims its contents, the contents cannot fairly be said to have been removed from a searching officer’s view. The same would be true, of course, if the container were transparent, or otherwise clearly revealed its contents.” 101 S.Ct. at 2846 (emphasis added). In this case, unlike Robbins, the officers, through their open-view sighting of the marijuana in the airplane, had probable cause to believe that the containers contained marijuana, and they were therefore justified in their warrantless search and seizure pursuant to the dictates of Carroll.

Having determined that section 893.-13(l)(d) is constitutional and that the trial court properly denied the motions to dismiss and to suppress, we affirm.

It is so ordered.

BOYD, OVERTON and McDONALD, JJ., concur.

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

SUNDBERG, Chief Justice,

concurring in part and dissenting in part.

Because I cannot accept what appears to me to be strained reasoning by the majority to reach its result, I would find this war-rantless search violative of both the federal and state constitutions, and therefore dissent as to the majority’s holding on this issue. I concur, however, that the drug control statute under attack is constitutional and includes all species of cannabis.

Although the majority skips over the issue of standing, the first inquiry a court must make in the context of the fourth amendment is whether those asserting protections of that amendment have standing to come within its shelter. The concept of standing is interwoven with a party’s privacy expectations. See United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

Appellant Adoue is the asserted owner of the aircraft and exercised a large degree of control over the use and travels of the aircraft, and therefore clearly has a sufficient proprietary interest to sustain his claim of fourth amendment protections. Likewise, appellant Wexler exercised a considerable degree of control over the use of the airplane, which included the hiring and paying of pilots to fly the aircraft. Furthermore, appellants took reasonable measures to ensure that their illicit cargo remained a secret. The airplane was landed in the dark at a small municipal airport, and parked among other airplanes in an area of limited accessibility. Unlike a car parked on a public street, the airplane here was relatively isolated from prying eyes in its position on the airfield. Landing without contacting the tower was evidently routine, and did not indicate in itself that appellants had reason to expect that their plane would thereby be subject to search. Nor did appellants abandon their privacy expectations by leaving the clearly operable airplane unattended in the airfield parking area. See Agnew v. State, 376 So.2d 13 (Fla. 2d DCA 1979). Under these conditions it can be said that appellants’ expectations of privacy in the airplane were reasonable.

Under both the federal and state constitutions, once a reasonable privacy expectation is found, warrantless searches are per se unreasonable unless an exception to the warrant requirement is established. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Hornblower v. State, 351 So.2d 716, 717 (Fla.1977). Two exceptions are arguably applicable: the “plain view exception,” and the “automobile exception.” For the following reasons, I find neither of these exceptions properly applies to this situation.

The “plain view exception” sometimes has been misunderstood in its application by the courts, and although the majority at least recognizes that this exception is inapplicable here, I feel it necessary to clarify its ruminations in this area. This term has been applied indiscriminately to three factually distinct situations. For purposes of discussion I shall label them: (i) the non-intrusive situation, (ii) the prior valid intrusion situation, and (iii) the pre-intrusive situation.

The non-intrusive situation occurs when a police officer who is outside of any vehicle or structure observes evidence of criminality which is also outside of any vehicle or structure. In this situation the police officer may seize this evidence without a warrant because there is no reasonable expectation of privacy in the seized item. Because there is no reasonable expectation of privacy, and no warrant requirement, it is incorrect and confusing to label “plain view” as an exception to the warrant requirement in these cases. Where fourth amendment rights do not attach there is no warrant requirement. See State v. Belcher, 317 So.2d 842 (Fla. 2d DCA 1975) (where observations of suspicious activity on a porch were made from the street and objects were seized pursuant to those observations “expectations of privacy,” if any, were not violated); Perez v. State, 383 So.2d 769 (Fla. 3d DCA 1980) (citing Belcher for upholding the seizure of marijuana being loaded onto a truck on a public street during the early morning hours). See also Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924); Hornblower v. State, 351 So.2d 716, 718 n.1 (Fla.1977).

In the prior valid intrusion situation, the classic “plain view,” the law enforcement officer is already legally inside of a vehicle or structure when he inadvertently sees and then seizes an item. This is the type of case to which the Supreme Court was referring in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), when it said,

What the “plain view” cases have in common is that the police officer in each of them has a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused and permits the warrantless seizure.

403 U.S. at 466, 91 S.Ct. at 2038. See Grant v. State, 374 So.2d 630, 631 (Fla. 3d DCA 1979) (a warrantless search was justified as to shotgun and .32 pistol which were in “plain view” of officers as they entered room in which body was found when they responded to an emergency police call without a warrant); Spinkellink v. State, 313 So.2d 666, 669 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976) (a warrantless search was justified as to a gun which was found in “plain view” in an open kitchen drawer pursuant to a consent search); Alford v. State, 307 So.2d 433, 439 (Fla.1975), cert. denied, 428 U.S. 912, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976) (having authority and justification for being where they were through consent and a warrant, the officers were justified in seizing items found in plain view or discovered inadvertently during the course of a reasonable search of defendant’s premises).

Whether a warrant is required in the final category, the pre-intrusive situation, is a question which has fostered much confusion. In this situation, the police officer is on the outside of a vehicle or structure when he sees evidence of criminality inside that vehicle or structure. When the police officer stands outside a vehicle or structure and looks inside, his constitutionally permissible observation only gives rise to a basis for probable cause, which he can then utilize in securing a warrant. Some additional justification is needed for the officer to enter and seize the object without a warrant. Coolidge, 403 U.S. at 468, 91 S.Ct. at 2039. Our society deems it important to honor a legitimate expectation of privacy in a structure or in a vehicle; this is why we require our law enforcement officials to have an additional justification to enter these areas. Id. at 449, 458-64, 91 S.Ct. at 2029, 2033-37.

In the case of a fixed premises, the additional requirement needed for entry, in the absence of exigent circumstances, is a warrant. Compare Steele v. United States, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757 (1925) (seeing contraband whiskey in an open doorway did not justify an immediate entry and seizure without a warrant, it merely furnished probable cause for a warrant which was issued and executed) with Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951 (1932) (unconstitutional seizure when police enter into a garage without a warrant and seize contraband liquor, even though the police saw the liquor from a place where they had a right to be). A warrant is likewise required to search a vehicle, again unless exigent circumstances exist. In the case of a vehicle, which is mobile or could readily be moved at the time a search could have been made, the exigency of the movement plus a reduced privacy, expectation may combine with probable cause to justify a search under the doctrines of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and Chambers v. Maroney, 399 U.S. 42, 51-52, 90 S.Ct. 1975, 1981-1982, 26 L.Ed.2d 419 (1970). See also Scales v. State, 13 Md.App. 474, 477-78, 284 A.2d 45, 47-48 (1971).

The plain view doctrine simply does not apply here. Since appellants had a reasonable expectation of privacy, and their fourth amendment rights attached, then this case is a pre-intrusive plain view situation. The plane was parked in a parking area, it was secured by the police, and it was not mobile. The record indicates that no one was inside the airplane, nor was there any suspicion that anyone was inside the airplane. The airport employees who had examined the airplane immediately after landing by opening the door gave the inspecting officers no indication that persons were on board. The officers by looking through windows and the open door had satisfied themselves that no one was inside the aircraft prior to the intrusive search into the interior of the airplane. They considered the plane entirely secured prior to the intrusive interior search. The police easily could have obtained a warrant once they had established probable cause after looking into the plane. The viewing of the cannabis provided only the probable cause for a search, and not the exigent circumstances to avoid a warrant. Hence the search was unreasonable, a result also dictated by our state constitution with its greater concern for the privacy of Florida’s citizens.

The second exception raised by this case, and the majority’s linchpin, is the application of the “automobile exception” to the warrant requirement, created by Carroll which required only probable cause to search a car when “it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” 267 U.S. at 153, 45 S.Ct. at 285. Chambers extended Carroll to uphold a search made sometime after the original highway stop at which time a search could have been made. Chambers, 399 U.S. at 49-52, 90 S.Ct. at 1980-1982. Airplanes, however, are not generally open to public view, and travel through airways in which a large degree of privacy is apparent. Since exposure to public scrutiny is a crucial basis for the “automobile exception,” I find the exception practically inapplicable to an airplane, but will assume, for argument’s sake, that it may have some applicability to the case.

Added to this scenario is the case of Coolidge, which would not allow an automobile search without a warrant when the car was parked in the owner’s drive, in spite of the apparent continued mobility of the car. Coolidge undermines the claim that Chambers was predicated on the inherent vehicular mobility rather than actual mobility, since Coolidge’s car was inherently mobile so long as it continued to be a car.

The second buttress for warrantless searches of automobiles is one which I do not question in principle: there is a diminished expectation of privacy in an automobile. See United States v. Chadwick, 433 U.S. 1, 12-13, 97 S.Ct. 2476, 2484-85, 53 L.Ed.2d 538 (1977). In practice, however, this rationale again fails to account for a warrantless search that is allowable when a car is stopped on the street but not allowable if the car is parked in a drive. Relatively identical diminished privacy expectations in the automobile apply in both situations, and this rationale therefore cannot be the critical one. Furthermore, an airplane is not as open to public scrutiny as a car, particularly as it travels the airways. See note 7 supra.

I am forced to the same conclusion as the Supreme Court in Cady v. Dombrowski, 413 U.S. 433, 440, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973), where it noted that the cases in this area “suggest that this branch of the law is something less than a seamless web.” Since the exigent circumstances created by the aircraft’s mobility had been eliminated, under both article I, section 12 of the Florida Constitution and the fourth amendment of the federal constitution, a warrant should have been obtained since it was evident that a delay would not have led to the loss of the aircraft and its contents. See Coolidge, 403 U.S. at 462, 91 S.Ct. at 2035-36. Furthermore, Chambers is not applicable since there never existed a stop under Carroll conditions based on exigent circumstances. Because the occupants of the aircraft were not in the proximity of the “vehicle” when it was seized, the exception created in Carroll and extended by Chambers is not here factually appropriate. Chambers merely held that a search that could have been made on the highway under Carroll may be made later at the station. Carroll is the predicate for Chambers; Carroll is founded on exigent circumstances, which never existed in this case.

Recently, courts faced with a Chambers problem when the vehicle is clearly immobilized have had difficulty supporting the rationale. The Tenth Circuit Court of Appeals sharply questioned the validity of Chambers once the mobility of a plane had been eliminated by being surrounded by ten armed agents. United States v. Gooch, 603 F.2d 122, 125 n.3 (10th Cir. 1979). Though it felt bound by Chambers, the court expressed its preference for the logic of Mr. Justice Harlan writing in a separate opinion in Chambers:

[I]n the circumstances in which this problem is likely to occur, the lesser intrusion will almost always be the simple seizure of the . . . [vehicle] for the period . . . necessary to enable the officers to obtain a search warrant.

399 U.S. at 63, 90 S.Ct. at 1987.

The Rhode Island Supreme Court found that exceptions to Chambers created by United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), and Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), which required a warrant to search repositories of personal effects in a car, had so undermined the “automobile exception” as to require the Rhode Island court to refuse to acknowledge the continuing validity of Chambers. That court relied on a state constitutional provision equivalent to the fourth amendment to prevent searches of vehicles once exigent circumstances had dissipated. See State v. Benoit, 417 A.2d 895 (R.I.1980).

This Court should also rely on our state constitution to prevent searches under these circumstances. Florida has . expressed its preference for exclusion of ill-gotten evidence in the last sentence of article I, section 12, Florida Constitution: “Articles or information obtained in violation of this right (against unreasonable searches and seizures) shall not be admissible in evidence.” We ignore it at great risk. This state alone has chosen to purposely provide an explicit and more comprehensive protection from unreasonable police searches. Florida’s constitutional mandate is more restrictive than its federal counterpart.

[Sjtate courts cannot rest when they have afforded their citizens the full protections of the federal Constitution. State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law. The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective force of state law — for without it, the full realization of our liberties cannot be guaranteed.

Brennan, State Constitutions and The Protection of Individual Rights, 90 Harv.L.Rev. 489, 491 (1977). These protections from unreasonable state intrusions into the privacy of its citizens must be accorded the highest priority in our system, a priority that Floridians have demanded in the constitutional exclusionary rule and the recently created constitutional right to privacy. “[T]he primary value underlying the constitutional right to privacy is the preservation of an inviolate enclave for one’s personality. Accommodation by limitation of the right in any particular case is not an incremental adjustment in a societal policy, but a direct violation of the principle to be protected.” Note, Formalism, Legal Realism, and Constitutionally Protected Privacy Under the Fourth and Fifth Amendments, 90 Harv.L. Rev. 945, 987 (1977) (footnote omitted). We must recognize that freedom from unwarranted police intrusions into individual privacy is a freedom worth the societal cost of allowing the guilty sometimes to go unpunished due to exclusion of otherwise reliable evidence. The dubious leave Winston Smith unremembered.

The exceptions created to the “automobile exception” by Chadwick and Sanders have finally come full circle to consume the rule in Robbins v. California, - U.S. -, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), a ease the majority tries desperately to distinguish but fails as desperately. Robbins of course expanded the protective scope of the “luggage exception” to the “automobile exception,” to include packages wrapped in opaque plastic bags, exactly the case here. Robbins is thus clearly analogous to this case since both concern the “automobile exception” and a package that is within the vehicle. The majority offers nothing to support its bold assertion that these cases are not analogous. They seek solace in the Supreme Court’s mention of footnote 13 of the Sanders opinion, in which two types of containers were not protected: (1) contents inferable by outward appearance; and (2) container is open. But such a purblind interpretation demonstrates the majority’s failure to continue in its reading of Robbins, for the passage on which it grasps is not revitalizing these two unprotected areas, but rather is reducing them to this statement:

The second of these exceptions obviously refers to items in a container that is not closed. The first exception is likewise little more than another variation of the “plain view” exception, since, if the distinctive configuration of a container proclaims its contents, the contents cannot fairly be said to have been removed from a searching officer’s view. The same would be true, of course, if the container were transparent, or otherwise clearly revealed its contents. In short, the negative implication of footnote 13 of the Sanders opinion is that, unless the container is such that its contents may be said to be in plain view, those contents are fully protected by the Fourth Amendment.

101 S.Ct. at 2846 (emphasis added).

The majority has readily conceded that the “plain view exception” does not apply. Since the contraband was not within the “plain view exception,” a fortiori it was not within the footnote 13 exception to the Robbins exception to the “automobile exception” to the fourth amendment. The majority has simply run out of exceptions. Only one bag was ripped so that its contents were not enclosed in a container, and only that bag can reasonably be excluded from the protections of Robbins. Furthermore, the majority’s assertion that probable cause existed misses the point, for no amount of probable cause will satisfy the warrant requirement, unless some exception can be found. Robbins protects the bags that were intact from the “automobile exception,” and probable cause alone cannot justify the intrusive search as to these bags.

Because I believe that the “plain view exception” and “automobile exception” are inapplicable under these circumstances, I would reverse the trial court’s denial of appellants’ motion to suppress.

ADKINS, J., concurs.

      . Article II, section 3 says:
      Branches of government. — The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any power appertaining to either of the other branches unless expressly provided herein.
      and Article III, section 1 says:
      Composition. — The legislative power of the state shall be vested in a legislature of the State of Florida, consisting of a senate composed of one senator elected from each senatorial district and a house of representatives composed of one member elected from each representative district.

      . The statute involved here is similar to the statute upheld on other grounds in Rinzler v. Carson, 262 So.2d 661 (Fla.1972). In Rinzler, this Court held that it was within the legislative power to exempt those who properly registered their weapons under federal law from the operation of the state’s firearms statute.

      . As comparable authority, I note that two cases from the federal fifth circuit have dealt with airplanes landing under similar circumstances, and both have granted the defendant the standing — privacy expectation necessary to assert a fourth amendment claim. See United States v. Johnson, 588 F.2d 147 (5th Cir. 1979); United States v. Brennan, 538 F.2d 711 (5th Cir. 1976), cert, denied, 429 U.S. 1092, 97 S.Ct. 1104, 51 L.Ed.2d 538 (1977).

      . For a most helpful discussion on this point, see Moylan, The Plain View Doctrine: Unexpected Child of the Great “Search Incident” Geography Battle, 26 Mercer L.Rev. 1047 (1975).

      . A constitutionally permissible observation is one which does not rise to the level of a search, and therefore is not subject to the requirements of the fourth amendment.

      . Although Albo v. State, 379 So.2d 648 (Fla.1980), appears inconsistent with this analysis of the “plain view exception,” that case did not really need to rely on “plain view” since the “automobile exception” was properly applicable. In Albo v. State, a vehicle was at a stop at a roadside parking lot after a traffic violation had occurred. The officer saw bales of marijuana stacked in the vehicle, providing probable cause for a warrantless search of the vehicle under Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

      . Of course a person’s expectation of privacy under some conditions in an automobile is somewhat less than his expectation of privacy in a structure.

      . The majority and I thus both agree that the “plain view” exception is inapplicable here. The case of Derrickson v. State, 399 So.2d 100 (Fla. 1st DCA 1981), which upheld this same search as to the pilot of the aircraft relying on this exception must therefore be disapproved.

      . For fourth amendment purposes, sometimes airplanes and automobiles are treated as substantially identical. See, e. g., United States v. Gooch, 603 F.2d 122, 124 (10th Cir. 1979). Another case has refused to equate the two. See United States v. Brennan, 538 F.2d 711, 721 (5th Cir. 1976).

      . Inherent mobility was espoused by the Supreme Court as a basis for the exception in United States v. Chadwick, 433 U.S. 1, 12, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977). For a prior rejection of this idea, see Coolidge, 403 U.S. at 461 n. 18, 91 S.Ct. at 2035 n. 18.

      . A warrant was required in Coolidge even though the car was inherently mobile. In the instant case, the plane was immobilized by agents; only its inherent mobility remained. For a case rejecting inherent mobility of a car abandoned in a field, see United States v. Ramapuram, 632 F.2d 1149, 1155 (4th Cir. 1980).

      .In Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974), the Supreme Court attempted to refine this distinction by asserting that a car parked in a public place was not within Coolidge since access was not restricted. But access was restricted in Coolidge by a guard posted on Coolidge’s property, not by the fact that the car was parked where it was. Cardwell also dealt with the search of a car’s exterior, so any reference to interior searches is dicta.

      . See Davis & Rayburn, 55 Fla. B.J. 243, 246 n.6 (1981).

      . See Grubbs v. State, 373 So.2d 905, 909 (Fla.1979).

        .See generally G. Orwell, Nineteen Eighty-Four (1973).


author: COWART, Judge.

text:
    Pauline JACKSON, a/k/a Paulette Hawkins, Appellant, v. STATE of Florida, Appellee.
    No. 80-838.
    District Court of Appeal of Florida, Fifth District.
    April 1, 1981.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COWART, Judge.

A judgment and sentence based on a guilty plea is normally not appealable.

See § 924.06(3), Fla.Stat. (1979); Fla.R. App.P. 9.140(b); Robinson v. State, 373 So.2d 898 (Fla.1979); Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979).

The appeal is

DISMISSED.

DAUKSCH, C. J., and SHARP, J., concur.


author: SHARP, Judge.

text:
    Horace HARVEY and Fredie Irvin, Appellants, v. STATE of Florida, Appellee.
    No. 80-1144.
    District Court of Appeal of Florida, Fifth District.
    July 22, 1981.
    Rehearing Denied Sept. 2, 1981.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   SHARP, Judge.

Appellants Harvey and Irvin were charged by informations with burglary. Harvey was also charged with battery on a law enforcement officer. The cases were consolidated for trial. The jury returned a verdict of guilty of attempted burglary against Irvin and verdicts of guilty of attempted burglary and simple assault against Harvey. At the time appellants were charged with the offense they were both juveniles.

Irvin contends that his motion for judgment of acquittal should have been granted because the evidence was insufficient to uphold his conviction. We hold the evidence was sufficient to find Irvin guilty of burglary and affirm his conviction and sentence.

Harvey urges as error the trial judge’s failure to consider the criteria set forth in section 39.111(6)(c), Florida Statutes (1979), before imposing adult sanctions. These points were not raised before the trial court. They concern procedural errors which are not fundamental; therefore, they cannot be raised for the first time on appeal. Dunman v. State, 400 So.2d 838 (Fla. 5th DCA 1981); Jones v. State, 384 So.2d 956 (Fla. 5th DCA), cert. denied, 392 So.2d 1375 (Fla.1980); Smith v. State, 378 So.2d 313 (Fla. 5th DCA), approved, 394 So.2d 407 (Fla.1980). Accordingly, the judgment and sentence of Harvey are affirmed without prejudice to his right to seek appropriate relief, e.g., through Florida Rule of Criminal Procedure 3.850. See Smith v. State, 378 So.2d 313 (Fla. 5th DCA), approved, 394 So.2d 407 (Fla.1980).

AFFIRMED.

DAUKSCH, C. J., and COBB, J., concur.


author: FUTCH, M. DANIEL, Jr., Associate Judge.

text:
    Hollie Lee McDONALD, Appellant/Cross-Appellee, v. ALLSTATE INSURANCE COMPANY, Appellee/Cross-Appellant.
    No. 79-2352.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 1981.
    Rehearing Denied Feb. 4, 1982.
    Robert T. Scott of Gunster, Yoakley, Criser & Stewart, Palm Beach, for appellant/cross-appellee.
    Wayne T. Gill and Louis W. Strum, III of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellee/cross-appellant.
   FUTCH, M. DANIEL, Jr., Associate Judge.

McDonald, the plaintiff below, appeals from the trial court’s judgment denying his application to confirm an arbitration award which included arbitration costs. We agree with the trial court’s finding for Allstate, the defendant, that the affirmative defense of accord and satisfaction precludes such confirmation.

The arbitration dealt with an accident between a motorcycle and a truck on September 27, 1976. The motorcycle was driven by the plaintiff’s son, Stephen James McDonald, who died as a result of the accident. The truck was driven by Jeffrey Allen Roach.

McDonald is the father and personal representative of the estate of Stephen James McDonald. Allstate is the insurer of McDonald, his son, and Jeffrey Allen Roach.

The liability limits of the Roach policy were $15,000. The deceased had a policy covering his motorcycle which contained underinsured motorist limits of $15,000. Also, McDonald had a policy covering his son as a resident of his household. At the time of the accident and up until April, 1978, McDonald’s attorney and Allstate’s attorney believed that two vehicles were insured with an underinsured motorist coverage of $25,000 per vehicle, i.e. a total of $50,000.

On August 2, 1977, Allstate paid to McDonald $15,000 under the Roach policy. Thereafter, a dispute arose as to whether this $15,000 would be applied as a set-off against the remaining underinsured coverage. Allstate claimed, therefore, that its total remaining liability was $50,000 and McDonald claimed that it was $65,000.

McDonald’s attorney proposed that Allstate agree- that the McDonalds’ total damages exceeded $80,000 and then once this fact was established, by agreement, the parties could litigate the set-off question. Allstate denied that McDonald’s damages exceeded $80,000. McDonald, as personal representative and survivor of his son, thereafter demanded arbitration on behalf of himself and his wife under the arbitration provisions of the insurance policies and the Florida Arbitration Code, Section 682.01 et seq., Florida Statutes (1979). The parties agreed that the arbitrators were to determine total damages and not the set-off issue.

The arbitrators awarded McDonald $66,-191.52 as his net damages and costs of $879.65. McDonald’s wife was awarded $63,750.00 as her damages. The award stated that the total amount was to be paid by Allstate. This award exceeded the maximum possible underinsured motorist coverage. Allstate’s attorney received a copy of the award on January 18th or 19th, 1978.

A series of discussions and correspondence between the attorneys for Allstate and McDonald followed. McDonald’s attorney demanded payment of an additional $50,000 and sought an agreement to litigate the $15,000 set-off issue. Allstate’s attorney sent a $50,000 draft which stated that it was a release as to any and all claims whatsoever. He also enclosed a document entitled “Receipt and agreement of partial satisfaction and subrogation”. McDonald’s attorney objected to the phrase “any and all claims” on the draft.

On March 3, Allstate’s attorney sent a second document entitled “Receipt and partial satisfaction”. He also enclosed a letter giving permission for deletion of the words, “any and all” from the draft, requesting execution of the document, and stating that it was his understanding that McDonald’s attorney would then be filing an action against Allstate for those funds still allegedly owed to McDonald, namely the $15,-000 set-off and the $879.65 in arbitration costs. The letter also stated that Allstate’s attorney trusted that the letter and document were satisfactory and that McDonald’s attorney should call him if he had any further questions.

On March 6th, McDonald signed the revised document. The document stated that receipt is acknowledged of payment of $50,-000 being paid in partial satisfaction of the arbitration award. McDonald’s attorney sent the executed documents to Allstate’s attorney. The attorneys had no further contact with each other until May 12th, when McDonald’s attorney filed this action to confirm the award pursuant to the Florida Arbitration Code.

The above communications established an accord and satisfaction, i.e., an agreement that Allstate’s payment of $50,000 satisfied McDonald’s claim except for the $15,000 setoff and the $879.65 in arbitration costs.

The arbitration code provides:

682.12 Confirmation of an award.— Upon application of a party to the arbitration, the court shall confirm an award, unless within the time limits hereinafter imposed grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in ss. 682.13 and 682.14
682.13 Vacating an award.—
(1) Upon application of a party, the court shall vacate an award when:
(a) The award was procured by corruption, fraud or other undue means.
* * * * *
(c) The arbitrators or the umpire in the course of his jurisdiction exceeded their powers.
******
But the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.
(2) An application under this section shall be made within ninety days after delivery of a copy of the award to the applicant, except that, if predicated upon corruption, fraud or other undue means, it shall be made within ninety days after such grounds are known or should have been known.
He * * He ‘ * He
682.14 Modification or correction of award.—
(1) Upon application made within ninety days after delivery of a copy of the. award to the applicant, the court shall modify or correct the award when:
He He He He He He
(b) The arbitrators or umpire have awarded upon a matter not submitted to them or him and the award may be corrected without affecting the merits of the decision upon the issues submitted.
******

Although the award was defective because the arbitrators exceeded their powers or awarded upon a matter not submitted to them by requiring Allstate to pay an amount greater than the policy limits, McDonald contends that the arbitration code requires confirmation. The code mandates confirmation upon application unless within 90 days after receipt of an award, a motion has been filed to vacate, modify or correct the award for reasons set forth in the statute, or unless corruption, fraud or other due means are involved.

Since Allstate did not file such a motion within 90 days, McDonald requested confirmation according to the rule set forth in Travelers Insurance Company v. Allen, 356 So.2d 1287 (Fla. 3rd DCA 1978), cert. denied, 364 So.2d 893 (Fla.1978). Allen held that an insurer could not raise a contention that the total award exceeded the company’s applicable insurance policy limits as a defense to confirmation of an arbitration award, where the insurer had failed to file a motion to vacate, modify or correct the award within 90 days after the award was received.

The trial court accepted McDonald’s contention and found that the Allen rule applies, but nevertheless denied confirmation by finding an accord and satisfaction.

In an action to confirm an arbitration award, the Allen case does not preclude assertion after 90 days of the nonstatutory defense of accord and satisfaction. This defense should be permitted because it is based on circumstances extrinsic and collateral to the arbitration award. See American Fidelity Fire Insurance Co. v. Richardson, 189 So.2d 486 (Fla. 3rd DCA 1966), cert. denied 200 So.2d 814 (Fla.1967). See also Bruno v. Travelers Insurance Co., 386 So.2d 251 (Fla. 3rd DCA 1980).

We find that the evidence supports a finding of an accord and satisfaction which included separate provisions for disputed subsidiary claims, i.e. $15,000 set-off and the $879.65 in arbitration costs, reserving them for subsequent determination by negotiations or court proceedings.

McDonald contends that such a reservation negates an accord and satisfaction by precluding a meeting of the minds or an agreement between the parties. A meeting of the minds or an agreement is an essential element of an accord and satisfaction. Morton v. Rifai, 339 So.2d 707 (Fla. 1st DCA 1976); State Road Department v. Houdaille Industries, Inc., 237 So.2d 270 (Fla. 1st DCA 1970).

We see no reason to disallow an accord and satisfaction merely because the parties agreed that two specific portions of the claim would be settled subsequently. There is an established policy favoring compromise in settlements of disputes.

Despite the reservation, the record contains substantial competent evidence to support an accord and satisfaction. The letter and document mailed on March 3, and subsequent events indicate a meeting of the minds.

The document entitled “Receipt and partial satisfaction”, stated that receipt was acknowledged of the payment of $50,000 in partial satisfaction of the arbitration award. The term “partial satisfaction” was not defined and, therefore, rendered the document ambiguous. The document was accompanied by a letter stating:

Please have your clients execute the original and one copy of the receipt, acknowledge same, and then return the duly executed original and copy to me. It is my understanding that you will then be filing an action against Allstate for those funds to which your clients claim they are still entitled. It is my understanding that this amounts to another $15,000 in UM benefits, plus the approximately $800.00 costs incurred in the arbitration matter. I trust that this letter and the enclosed documents are satisfactory, but please call me if you have any further questions.

On March 7th, McDonald’s attorney responded by having the documents executed and by mailing them back to Allstate’s attorney. The acceptance of $50,000 and the execution of the document, along with failure to dispute the assertions in the above quoted letter constitute substantial competent evidence that McDonald’s attorney agreed to an accord and satisfaction. Furthermore, the accord and satisfaction made separate provision for the claim for arbitration costs of $879.65 included in the arbitration award by reserving resolution of this claim for subsequent determination by negotiation or by court proceedings. The trial court, therefore, was correct in not ruling on the issue of arbitration costs. Accordingly, the judgment is affirmed.

AFFIRMED.

DOWNEY and GLICKSTEIN, JJ., concur.

      . The trial court also held that an equitable estoppel precluded confirmation. Since we are affirming on the basis of an accord and satisfaction, we find it unnecessary to consider this issue.


author: PER CURIAM. PER CURIAM.

text:
    John M. LAVAZZOLI, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2214.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 1981.
    On Rehearing Jan. 19, 1982.

      Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before DANIEL S. PEARSON and FERGUSON and JORGENSON, JJ.
   PER CURIAM.

The trial court found the defendant guilty of four separate violations of the conditions of his probation, but erroneously refused to entertain a timely motion to suppress evidence relating to three of the charged violations. Grubbs v. State, 373 So.2d 905 (Fla.1979); Nealy v. State, 400 So.2d 95 (Fla.3d DCA 1981); Huppertz v. State, 399 So.2d 992 (Fla.3d DCA 1981); State v. Dodd, 396 So.2d 1205 (Fla.3d DCA 1981).

The remaining violation involved the act of leaving the county of residence without first obtaining the consent of the probation office. This violation will be unaffected by any future ruling of the trial court on the defendant’s motion to suppress. Moreover, this violation, while technical in nature, is sufficient for revocation. Cf. Aaron v. State, 400 So.2d 1033 (Fla.3d DCA 1981) (failure to notify probation officer of change in employment and failure to file monthly reports); Coxon v. State, 365 So.2d 1067 (Fla. 2d DCA 1979) (failure to file monthly reports); Page v. State, 363 So.2d 621 (Fla. 1st DCA 1978) (failure to file monthly reports); Franklin v. State, 226 So.2d 461 (Fla. 2d DCA 1969) (failure to file monthly reports).

However, since it appears from the record that the trial court’s primary reasons for revoking the defendant’s probation were the charges that the defendant possessed cocaine, carried a concealed firearm, and possessed a firearm while a convicted felon, all of which will stand or fall depending on the outcome of the suppression hearing, and since it is likely that these violations were the substantial reason for the punishment imposed on the defendant, a remand for a suppression hearing is in order. If, after hearing, the defendant’s motion to suppress is denied, the revocation presumably will be reinstated. If the motion to suppress is granted, the trial court must then determine whether it will revoke, which it is free to do, the defendant’s probation for the remaining violation of leaving the county without permission. See Aaron v. State, supra; Jess v. State, 384 So.2d 328 (Fla. 3d DCA 1980).

In the event upon remand revocation results, the defendant, who has on this appeal accurately asserted that his sentence of incarceration for three years as a special condition of probation violates Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981), and has asked for relief, must be resentenced in a manner which does not offend Villery.

Reversed and remanded with directions to proceed consistent with the views expressed herein.

ON PETITION FOR REHEARING

PER CURIAM.

We grant the State’s petition for rehearing and supplement our earlier opinion to add the following paragraph:

“Pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(vi), we certify that this decision is in direct conflict with Latham v. State, 360 So.2d 127 (Fla. 1st DCA 1978), and Shipp v. State, 349 So.2d 690 (Fla. 4th DCA 1977).”


text:
    MOBIL OIL CORPORATION, Appellant/Cross-Appellee, v. V. S. H. REALTY, INC., Appellee/Cross-Appellant.
    No. 81-5.
    District Court of Appeal of Florida, Fifth District.
    Nov. 25, 1981.
    Rehearing Denied Jan. 7, 1982.
    Ernest R. Drosdick and Jon C. Yergler of Lowndes, Drosdick, Doster & Kantor, P. A., Orlando, for appellant/cross-appellee.

      Jed Berman of Felder & Berman, Winter Park, for appellee/eross-appellant.
   SHARP, Judge.

Mobil Oil Corporation appeals from a final judgment entered after a non-jury trial. The trial court ruled that V. S. H. Realty, Inc. was excused from its contract with Mobil to purchase certain real estate, and that it was entitled to the return of its six thousand dollar ($6,000) deposit. Mobil argues the trial court erred in releasing V. S. H. from the contract because of “economic infeasibility,” and in allowing as part of the taxable costs assessed against Mobil the cost of copies of depositions. We affirm.

V. S. H. candidly admits there is no controlling authority in this state establishing “economic infeasibility” as a legal excuse for not performing a contract. However it argues, and we agree, there was sufficient evidence to sustain the judgment on another ground. The contract contained a condition precedent — that the county would issue a building permit to construct a certain kind of building — and that did not happen because of subsurface soil problems. Mobil contends V. S. H. failed to prove it timely exercised its right to cancel the contract. However, Mobil also failed to prove V. S. H. was untimely, and the timeliness or lack thereof, is an affirmative defense which should have been alleged and proved by Mobil. Bradford Builders, Inc. v. Department of Water & Sewers, 142 So.2d 137 (Fla. 3d DCA 1962).

Because of the small amount of money involved, it is not often that the District Courts of Appeal are presented with the question of whether copies of depositions should be taxable against the losing party and it is even rarer that this question reaches the Florida Supreme Court. In the last decade this question has been certified a number of times without success. We will try once more.

The last and only time the Florida Supreme Court answered this question was almost thirty (30) years ago. It ruled in Florida Greyhound Lines, Inc. v. Jones, 60 So.2d 396 (Fla.1952), that the cost of copies was not properly assessable, although the cost of the transcript was. It gave no reason for its holding, and the facts as stated in the case do not disclose whether the depositions were on file or whether they were readily accessible to the opposing party-

The Fourth District Court of Appeal has taken the view that the cost of copies, like the cost of original depositions, can be assessed against the losing party at the discretion of the trial court. County of St. Lucie v. Browning, 358 So.2d 253 (Fla. 4th DCA 1978). To show an abuse of discretion by the trial court in making such an award, the complaining party must bring a record to the appellate court showing that the original was readily available for inspection by the party who ordered the copy, or that it was not reasonably needed for the litigation. In the absence of such a showing, the trial court’s award of cost of copies should not be reversed.

The real basis for the Browning case was expressed by Judge Moore in Moore v. Caughey, 368 So.2d 109 (Fla. 4th DCA 1979). He noted the substantial changes in the practice of law which have taken place since Florida Greyhound, and he observed that only in rare instances should an original deposition filed with the court be considered “available” for practical purposes to opposing counsel.

Considering the pace of the practice of law and the somewhat limited use of discovery at .that time [when Florida Greyhound, was decided] as compared to its use today, the suggestion that lawyers go to the courthouse and read the original transcript of depositions may have been adequate, but to suggest that as a viable, practical alternative to obtaining copies of depositions today is totally unrealistic. Besides the problems presently existing of time and space as Florida grows, one wonders how the practitioner is to handle the reading of depositions, the impeachment of witnesses, etc., during trial. Who is the lucky one who gets to hold the original transcript? How do the lawyers and judge follow the reading of the transcript? Suffice to say that in this day and time copies of depositions are a necessity in many cases ....

368 So.2d at 111.

In this case, the record does not show whether the original depositions were readily available to V. S. H., or that they were not reasonably required by it to litigate this matter. Following the Fourth District Court of Appeal, we affirm the award of costs of copies under these circumstances. We recognize two other District Courts have ruled to the contrary. Because of the conflict, and because we think the question is one of great public importance since it potentially is involved in almost every lawsuit, we certify the following question to the Florida Supreme Court:

MAY THE COST OF COPIES OF DEPOSITIONS BE PROPERLY TAXED AGAINST THE LOSING PARTY IN THE DISCRETION OF THE TRIAL COURT, AND IF SO, UNDER WHAT CIRCUMSTANCES?

AFFIRMED.

DAUKSCH, C. J., and COWART, J., concur.

      . Ray v. Dock & Marine Constr., Inc., 183 So.2d 237 (Fla. 3d DCA), cert. denied, 192 So.2d 489 (Fla.1966).

      . Beattie v. Brotz, 391 So.2d 802 (Fla. 2d DCA 1980); Paul v. Allstate Ins. Co., 380 So.2d 1307 (Fla. 2nd DCA 1980); Cohen v. Dennis, 209 So.2d 465 (Fla. 3d DCA 1968).

      . Art. V, § 3(b)(4), Fla.Const.; Fla.R.App.P. 9.030(a)(2)(A).