author: PER CURIAM.

text:
    Betty BOSTWICK, et al. v. William D. HARRIS, etc., et al.
    82-38.
    Supreme Court of Alabama.
    Oct. 27, 1982.
    Walter Byars and Wanda D. Devereaux, Montgomery, and Edward Still, Birmingham, for appellants.
    Edwin A. Strickland, and James 0. Spencer, Jr., Birmingham, for appellees.
   PER CURIAM.

The facts are simple and undisputed.

Thomas J. Hayden filed his declaration of candidacy with the Republican Party on July 8, 1982, for Associate Justice, Place 2, Alabama Supreme Court. Several days after the statutory deadline of 5:00 p.m. on July 9, 1982, at Hayden’s request, this declaration was somehow changed to show that he declared his candidacy for Associate Justice, Place 3, Alabama Supreme Court.

Hayden is not a candidate for Place 2, because (1) his declaration was changed to Place 3, and (2) he was not certified as a candidate for Place 2 by the Republican Party as required by § 17-7 — 1, Ala.Code 1975. Hayden does not contend that he is a candidate for Place 2. He does contend that he is a candidate for Place 3. In this he is in error.

Hayden is not a candidate for Place 3, because his declaration of candidacy was not filed with the Republican Party before the statutory deadline, which was 5:00 p.m., July 9, 1982.

The following statutes are controlling and compel this result:

Ala.Code 1975, § 17-16-ll(a), provides:

“All candidates for nomination to public office ... shall file their declaration of candidacy with the state party chairman ... not later than 5:00 P.M. 60 days before the date of such primary.” (July 9, 1982)

This statute is mandatory and political parties have no power to alter the time fixed by the legislature. This Court so held in Foster v. Dickinson, 293 Ala. 298, 302 So.2d 111 (1974), but the appellants concede that they did not call this case to the attention of the trial court.

Section 17-16-21 provides:

“Whenever and wherever candidates for two or more state offices of the same classification are to be nominated in said primary, each of said places to be filled shall be numbered, and each candidate for such offices, in the announcement of his candidacy, shall designate the number of the office for which he is a candidate. The same person shall not be a candidate or be permitted to file his declaration for more than one of such places. No ballot shall be counted for any candidate except for the place and number for which he announced in his declaration filed with the legally constituted authorities to receive and file declaration of candidacy.” (Emphasis added.)

The appellants Bostwick and Bolin, as representative registered voters, electors, and taxpayers, adherents of the Alabama Republican Party and Alabama Democratic Party, respectively, properly raised these issues in the trial court by their complaint for declaratory and injunctive relief to prevent the Secretary of State from certifying the name of Hayden as a candidate for the Alabama Supreme Court, Associate Justice, Place 3. By an amended complaint, these appellants sought a declaratory judgment or, in the alternative, a writ of mandamus, and injunctive relief directed to the Secretary of State to prevent him from certifying, or ordering him to withdraw or rescind his certification of, the name of Hayden as candidate for Place 3; and directed to all probate judges in the state (represented by appellee O.H. Florence, as probate judge of Jefferson County, as their class representative) to prevent the probate judges from preparing or causing to be printed the ballot with the name of Hayden as candidate for Place 3, and to cause the proper ballots to be prepared without Hayden’s name printed thereon.

The court denied the relief sought, and this appeal followed. In denying plaintiffs relief, the trial court concluded that it was without jurisdiction to adjudicate the issues presented. We disagree. “Where matters pertaining to nomination are regulated by statute, questions of compliance with a statute and infringement of legal rights conferred are judicial; and the courts are not ousted of jurisdiction or bound by the decisions of party authorities with regard thereto.” Kinney v. House, 243 Ala. 393, 395, 10 So.2d 167 (1942). This is not an election contest case, but is a case involving statutory interpretation relating to the timeliness of Hayden’s declaration of candidacy for Alabama Supreme Court, Place 3. That the courts are empowered, upon appropriate invocation of their jurisdiction, to adjudicate this cause is a settled issue.

For the reasons heretofore stated, the judgment appealed from is reversed, and judgment is hereby rendered as follows:

(1) That the Honorable Don Siegelman, in his capacity as Secretary of State, rescind or withdraw any certification which allows the name of Thomas J. Hayden to be placed on the ballot for the general election for 1982 as the nominee of the Alabama Republican Party for the office of Alabama Supreme Court, Associate Justice, Place 3, and that the Honorable Don Siegel-man, in his capacity as Secretary of State, be, and he is hereby, permanently enjoined from certifying the name of Thomas J. Hayden as the nominee of the Alabama Republican Party for the office of Alabama Supreme Court, Associate Justice, Place 3;
(2) That the Honorable O.H. Florence, in his capacity as Judge of Probate of Jefferson County, Alabama, and all Probate Judges of the State of Alabama, who are represented in this action as a class by O.H. Florence, Judge of Probate of Jefferson County, Alabama, (a) be permanently enjoined from printing or placing on the ballot for the general election for 1982 the name of Thomas J. Hayden as the nominee of the Alabama Republican Party for the office of Alabama Supreme Court, Associate Justice, Place 3; (b) cause the proper ballot labels to be placed on the voting machines without the name of Thomas J. Hayden as the nominee of the Alabama Republican Party for the office of Alabama Supreme Court, Associate Justice, Place 3; and (c) be enjoined from permitting votes to be cast for Thomas J. Hayden for the office of Supreme Court, Associate Justice, Place 3, in the November 2, 1982, general election and to lock all voting machines or remove the name of Thomas J. Hayden from the ballot or refuse to tally and count the votes cast for Hayden in said general election in the event the ballot is printed to contain his name.

REVERSED AND RENDERED.

TORBERT, C.J., and FAULKNER, JONES, ALMON, SHORES and EMBRY, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Frank Clyde REESE, Jr., Respondent.
    Nos. 61276, 61583.
    Supreme Court of Florida.
    Oct. 7, 1982.
    Rehearing Denied Nov. 30, 1982.
    John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel and Dale E. Krout, Jr., Branch Staff Counsel, Tallahassee, of The Florida Bar, for complainant.
    James L. Harrison, Jacksonville, for respondent.
   PER CURIAM.

The Florida Bar, asking for disbarment, seeks review of the referee’s recommended discipline in this bar grievance case. We approve the referee’s report and adopt his recommendation of discipline. That report reads as follows:

FINDINGS OF FACT

From the evidence, the Referee finds:

Case No. 61,276:

Count 1. (a) In 1978, Respondent was representing a defendant, llene Lucas, in a foreclosure case pending in the Circuit Court, St. Johns County, Florida. In the course of the litigation, there was a change in the interest of the plaintiff, and Respondent undertook to and did secure a former associate (Giles P. Lewis) to sign an appearance as counsel for the plaintiff. Mr. Lewis did so as an accommodation for Respondent, advising him that as he was to go on the bench on January 1,1979, the matter would have to be completed before that date.

(b) After Mr. Lewis became a County Judge, Respondent (without the knowledge of Lewis) signed Lewis’ name as attorney for the Plaintiff to a Motion for Final Judgment.

(c) Upon learning of Respondent’s action in signing the name of Lewis, the Circuit Judge set aside the Judgment and cited Respondent for contempt. After hearing and on June 30, 1980, the Judge entered a “Judgment of Criminal Contempt” which contained the following:

“The Defendant has shown no cause why he should not be adjudicated in contempt of this Court. Defendant has failed to show any mitigating circumstances when given the opportunity to do so. Defendant is thus adjudicated in constructive criminal contempt of this Court and fined $1,000.00”.

(d) Prior to this incident the Court had warned Respondent that he could not represent both the Plaintiff and a Defendant in this case. See Respondent’s (Defendant’s) Exhibit 2, Pages 12-15. Notwithstanding, Respondent signed the name of then County Judge Giles P. Lewis as attorney for the Plaintiff.

Count 2. (a) In 1974, Respondent was retained to handle a small estate. In mid-1974, he filed a Petition for probate and did nothing further until March 1975. After a foreclosure was filed on property in the estate, Respondent’s client discovered he had done nothing and fired him.

(b) Respondent was charged with not properly handling a legal matter entrusted to him, and entered a conditional guilty plea “in exchange for a private reprimand” by The Board of Governors. The conditional plea provided that Respondent for a period of two years would not handle any matters in the “probate and estate area” and would furnish staff counsel of The Florida Bar “an affidavit on his compliance with the terms of probation on a quarterly basis”.

(c) On July 6, 1978, the “Private Reprimand” was administered.

(d) Respondent failed to furnish staff counsel with the affidavits due May 1979, August 1979, November 1979 and February 1980, until the May 27,1980, meeting of the 4th Judicial Circuit Grievance Committee “C”.

(e) By letters dated October 9, 1979, and November 15, 1979, The Florida Bar called Respondent’s delinquencies to his attention. Respondent ignored the letters and failed to respond to telephone calls made by Assistant Staff Counsel on October 25 and October 29, 1979.

Case No. 61,583:

(a) On February 13, 1979, Respondent agreed to represent llene Lucas in a potential malpractice action against then attorney (now Judge) Charles Mitchell, and received the sum of $35.00 from her.

(b) Respondent investigated the claim and determined that there was no basis for a malpractice claim. However, he never informed Lucas of his opinion or of his intention not to file a malpractice claim against Mitchell.

(c) Any claim which Lucas had against Mitchell became barred by the statute of limitations. However, there is no indication that there was any merit to the claim.

RECOMMENDATIONS AS TO FINDING OF GUILT

It is recommended that Respondent be found guilty of misconduct justifying disciplinary measures as follows:

1. Signing the name of then County Judge Giles P. Lewis to a Motion for Judgment for Plaintiff against the Defendants, one of whom was represented by the Respondent in said foreclosure action; and that in doing so, Respondent violated Disciplinary Rules 1 — 102(A)(4) and (6), as charged in Count 1 of the complaint in Case No. 61,276.
2. Failing to file quarterly affidavits as required by his said conditional plea of guilty; and that such failure constitutes conduct adversely reflecting on his fitness to practice law and is a violation of Disciplinary Rule 1-102(A)(6), as charged in Count 2 of the Complaint in Case No. 61,276.
3. Agreeing to represent a client in a potential malpractice action against an attorney, and then failing to inform the client that his investigation indicated that there was no basis for such a claim, as a consequence of which any claim was barred by the statute of limitations; and that in doing so, Respondent violated Disciplinary Rule 7-101(A)(2), as charged in the Complaint in case No. 61,583.

It is further recommended that Respondent be found not guilty of violating Disciplinary Rules 7-102(A)(5), (7), and (8) (Count 1) and 1-102(A)(4) (Count 2) as charged in the Complaint in case No. 61,276. The conduct does not fall within the intent of said Rules, but rather within the other rules as set forth in paragraphs numbered 1 and 2 next above.

RECOMMENDATIONS AS TO DISCIPLINARY MEASURE TO BE APPLIED

As appears from the next section of this Report, Respondent (beginning in 1968) has been guilty of misconduct for which he has been disciplined on three occasions. In the Private Reprimand administered July 6, 1978, the Board of Governors advised the Respondent “that this Board will treat harshly any future violation by you of our ethical standards”. This made little impression on Respondent as he failed to file affidavits with the Bar as required, beginning in May 1979.

As Respondent has demonstrated the lack of a sense of responsibility, and has not profited from previous disciplinary measures, serious consideration has been given to a recommendation of disbarment. However, it is noted that in connection with a prior disciplinary measure the Court (263 So.2d 794, Text 796) observed:

“We are favorably impressed also by the fact that Respondent plans to leave private practice and seek a salaried position with the federal government.”

If Respondent still entertains the thought of leaving private practice, disbarment would greatly prejudice him in procuring employment. Therefore, instead of disbarment, it is recommended that Respondent be suspended from the practice of law for the period of three (3) years, and thereafter until he shall demonstrate that he is entitled to be reinstated by making the showing required by Rule 11.11, Article XI of the Integration Rule of The Florida Bar.

STATEMENT OF PAST DISCIPLINARY MEASURES

The following disciplinary measures have been administered to Respondent:

1. A Public Reprimand on May 12, 1971, for withholding funds belonging to a client, co-mingling them with his own funds, and using them for payment of a personal obligation. The Florida Bar vs. Frank Clyde Reese (Fla.) 247 So.(2d) 718.
2. A Public Reprimand on June 14, 1972, for converting to his own uses and purposes the sum of $778.58 in 1966, which belonged to the beneficiaries of an estate he represented, and subsequently (in 1969) coverting to' his own use the sum of $1,200.00 received in trust as a down payment on a house. The Florida Bar vs. Frank Clyde Reese (Fla.) 263 So.2d 794.
3.A Private Reprimand on July 6, 1978, for failing to properly handle (doing nothing) an estate he was retained to handle.

STATEMENT OF COSTS

Costs in this proceeding total $1,413.49. It is recommended that such costs be taxed against Respondent, and that he be required to pay them within thirty days after any disciplinary measure becomes final.

Accordingly, Frank Clyde Reese is suspended from the practice of law for a period of three (3) years, and thereafter until he demonstrates that he is entitled to be reinstated pursuant to rule 11.11, article XI of the Integration Rule of the Florida Bar. This suspension shall be effective November 8, 1982, thereby giving Respondent thirty (30) days to close out his practice and take the necessary steps to protect his clients, and it is ordered that Respondent shall not accept any new business.

Costs in the amount of $1,413.49 are due and payable to the Florida Bar within thirty (30) days of the filing of this opinion.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON and McDONALD, JJ., concur.


author: PER CURIAM. BOYD, Justice concurring:

text:
    THE FLORIDA BAR, Complainant, v. Bernard J. PENN, Respondent.
    No. 61228.
    Supreme Court of Florida.
    Oct. 14, 1982.
    Rehearing Denied Dec. 3, 1982.

      John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel and Mary Ellen Bateman, Bar Counsel, Tallahassee, Ethics and Discipline Department, of The Florida Bar, for complainant.
    Bernard J. Penn, Pensacola, in pro. per.
   PER CURIAM.

This attorney-discipline proceeding is before the Court on the complaint of The Florida Bar, the report of a referee, and the petitions of both parties for review. Our jurisdiction and procedure are governed by article V, section 15, Florida Constitution and article XI, Rule 11.09 of the Integration Rule of The Florida Bar.

The Florida Bar filed a two-count complaint against respondent Bernard J. Penn. The first count charged violations of Disciplinary Rules 1-102(A)(4), 1-102(A)(5), 1-102(A)(6) and 6-101(A) of the Code of Professional Responsibility for improperly retaining a legal fee where no legal services were performed and for improperly requiring a client to sign a release. The second count charged respondent with violating article II, section 2, of the Integration Rule of The Florida Bar by engaging in the practice of law in Florida while not an active member in good standing of The Florida Bar.

The referee made the following findings and recommendations:

FINDING OF FACT AS TO COUNT I

Having observed the demeanor of the participants, listened to their testimony and reviewed the exhibits, your Referee finds:
1. Mary Reed on or about February 17, 1979, accompanied her brother, Sylvester H. Steele, to Respondent’s law office in Pensacola, Florida.
2. Mr. Steele wanted to speak with the Respondent regarding a quitclaim deed he, Mr. Steele, had signed on or about September 1, 1965. The deed had been received through the mail from another sister, Agnes Sullivan.
3. Mrs. Reed was not a party to the quitclaim deed signed by Mr. Steele and had no intentions on February 17, 1979, of retaining the Respondent. Notwithstanding this, the Respondent required Mrs. Reed to execute the contingency fee employment contract along with Mr. Steele. Upon its execution, Mr. Steele advanced the Respondent $500.00 as “court costs, and binder for initial fee on this cause”.
4. Subsequent to February 17, 1979, and after talking with her son-in-law about what she had done, Mrs. Reed and Mr. Steele returned to Respondent’s office and she advised Respondent she wanted to withdraw. At that point in time Mr. Steele decided to withdraw also. The Respondent then prepared what he called a release which is dated March 1, 1978 (the actual date was March 1, 1979). The release stated that Mrs. Reed owed her brother, Mr. Steele, $250.00 for dropping her case. The release further allowed the Respondent to retain the $500.00 advanced by Mr. Steele as a fee and for liquidated damages.
5.Notwithstanding the Respondent’s denial, the release was not voluntarily signed and was in fact signed under threat.
CONCLUSION AS TO COUNT I
On its face a suit was barred on the 1965 quitclaim deed and the facts clearly and convincingly establish that the Respondent improperly and unethically retained the legal fee advanced by Mr. Steele and improperly and unethically required Mrs. Reed and Mr. Steele to sign the release. In so doing he violated DR 1-102(A)(4), DR 1-1-2(A)(5) (sic) and DR 1-102(A)(6).
RECOMMENDATION ON GUILT OR
INNOCENCE AS TO COUNT I
It is the recommendation of your Referee that the Respondent, Bernard J. Penn, be found guilty of professional misconduct justifying disciplinary measures for violating DR 1-102(A)(4), DR 1-102(A)(5) and DR 1-102(A)(6).
AS TO COUNT II
Count II charged that the Respondent on May 19,1979, was retained by Frances Phair to initiate bankruptcy proceedings on behalf of her and her husband. On June 5,1979, the Supreme Court of Florida suspended the Respondent as an active member of the Florida Bar. The Respondent argued he was not made aware of this suspension until June 13, 1979. Between May 19, 1979, and June 11, 1979, Mrs. Phair paid the balance due Respondent for fees and costs. On August 1, 1979, the Respondent filed the Phairs’ petitions for bankruptcy. Through August 27, 1979, the Respondent had never advised the Phairs of his suspension as an active member of The Florida Bar.

FINDING OF FACT AS TO COUNT II

Having observed the demeanor of the participants, listened to their testimony and reviewed the exhibits, your Referee finds:
1. On May 19, 1979, the Respondent agreed to represent the Phairs in their personal voluntary proceeding for bankruptcy and a $40.00 retainer was paid leaving a balance due of $410.00.
2. By June 11, 1979, the balance due on attorney fees and costs were paid.
3. On June 5, 1979, the Florida Supreme Court suspended Respondent indefinitely from the practice of law in the State of Florida and struck his name from the roll of attorneys.
4. On or about the 1st of July, 1979, the Phairs received from the Respondent a blank bankruptcy form which they completed.
5. The completed bankruptcy petitions were filed on August 1, 1979.
6. Up through that date the Respondent had not advised the Phairs that he had been suspended from the practice of law.
7. On August 28, 1979, the Phairs received from the Respondent a letter dated August 27, 1979, in which he advised them that he had been suspended from the practice of law and that they would be on their on (sic) at the bankruptcy hearing. The date of the bankruptcy hearing was August 29, 1979.
8. The Respondent admitted on the morning of August 29, 1979, that he had known for quite some time about his suspension and the Respondent advised Mr. Phair that Respondent wanted a release getting his name off of all the paper work.
9. The Phairs attended the bankruptcy hearing in proper person.
10. The Respondent cites the case of In re the matter of Ruffolo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968), which he feels authorized him to continue legal representation of the Phairs at the Federal Court level. The Referee finds said case is not applicable to this matter.
CONCLUSION AS TO COUNT II
On June 5,1979, the Supreme Court of Florida suspended the Respondent indefinitely from the practice of law in the State of Florida. Even if you accept the Respondent’s argument that the Order was not served on him until June 13, 1979, it is nonetheless an inescapable fact that the Respondent held himself out to the Phairs as their attorney in the bankruptcy proceedings through at least August 28, 1979.
RECOMMENDATION ON GUILT OR INNOCENCE AS TO COUNT II
It is the recommendation of your Referee that the Respondent, Bernard J. Penn, be found guilty of violating Article II, Section 2, Integration Rule of The Florida Bar by engaging in the practice of law in this State while he was not an active member of The Florida Bar in good standing.

FINDING AS TO PAST DISCIPLINARY MEASURES

In the matter of The Florida Bar v. Penn, 351 So.2d 979, (1977), the Supreme Court upon review of a Referee’s report publicly reprimanded Respondent, Bernard J. Penn, for certain improprieties. Additionally, the costs of those proceedings in the amount of $730.50 were assessed against the Respondent. The Respondent failed to pay those costs and as a result thereof was suspended indefinitely from the practice of law in the State of Florida and had his name stricken from the roll of attorneys for failure to pay those costs.

RECOMMENDATION AS TO DISCIPLINARY MEASURES

In view of the Respondent’s prior disciplinary record, your Referee recommends that the Respondent be required to pay the costs of these proceedings as a prior condition to satisfactorily passing the Multi-State professional Responsibility Examination which is presently required for admission to The Florida Bar before his name can be returned to the roll of attorneys.

The respondent contends that the referee’s findings of fact are erroneous. We conclude that the findings relating to Count I are not clearly erroneous and are supported by competent and substantial evidence. The Florida Bar v. Baron, 392 So.2d 1318 (Fla.1981); The Florida Bar v. McCain, 361 So.2d 700 (Fla.1978); The Florida Bar v. Hirsch, 359 So.2d 856 (Fla.1978). We therefore uphold the referee’s findings of fact, conclusions and recommendations of guilt as to Count I.

As to Count II, however, we find that the referee erred. Penn was charged with engaging in the practice of law in Florida while not an active member of The Florida Bar in good standing by giving legal advice and representing clients in a pending federal bankruptcy proceeding subsequent to his suspension by this Court. While it is true that admission to practice before a federal court is derivative from membership in a state bar, suspension or disbarment by a state does not result in automatic suspension or disbarment by the federal court without some affirmative action by the federal court. In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117, reh’g denied, 391 U.S. 961, 88 S.Ct. 1833, 20 L.Ed.2d 874 (1968). The record clearly reflects that the respondent was still a member in good standing of the Bar of the United States District Court for the Northern District of Florida when he was representing the Phairs in the bankruptcy proceeding. He thus was appearing before a court wherein he was authorized to practice. This Court has, however, enjoined practice in the federal sector where the respondent was neither a member of The Florida Bar nor of any federal court. The Florida Bar v. Escobar, 322 So.2d 25 (Fla.1975); The Florida Bar v. Moreno-Santana, 322 So.2d 13 (Fla.1975); The Florida Bar v. Flowers, 320 So.2d 809 (Fla.1975); The Florida Bar v. Lugo-Rodriguez, 317 So.2d 721 (Fla.1975); and The Florida Bar v. Scussel, 240 So.2d 153 (Fla.1970). Such is not the ease before us. We therefore do not uphold the referee’s findings that respondent violated article II, section 2 of the Integration Rule of The Florida Bar.

The Bar’s petition for review of the referee’s report urges that the respondent be disbarred. The referee recommends that respondent be required to pay the costs of these proceedings as a prior condition to satisfactorily passing the multi-state professional responsibility examination which is presently required for admission to The Florida Bar before his name can be returned to the roll of attorneys. We are of the view that these recommended disciplines do not meet the factors set forth in State ex rel. Florida Bar v. Murrell, 74 So.2d 221,227 (Fla.1954), wherein this Court said: “The judgment in a case like this must have these factors in mind: (1) it must be just to the public and it must be designed to correct any anti-social tendency on the part of respondent as well as deter others who might tend to engage in like violations; (2) it must be fair to respondent at the same time the duty of the court to society is paramount.”

Respondent was first disciplined by this Court in 1977 when he received a public reprimand. The Florida Bar v. Penn, 351 So.2d 979 (Fla.1977). Respondent was ordered to pay the costs of those disciplinary proceedings in the amount of $730.50. He failed to obey the Court’s order to pay costs and was suspended indefinitely from the practice of law in June 1979. In this case, the finding of misconduct and respondent’s prior disciplinary record do not occupy that rung of the ladder reserved for those most serious breaches of ethical conduct which warrant disbarment. “[Djisbarment is the extreme measure of discipline and should be resorted to only in cases where the láwyer

demonstrates an attitude or course of conduct wholly inconsistent with approved professional standards. It must be clear that he is one who should never be at the bar, otherwise suspension is preferable.” Murrell at 223; see also The Florida Bar v. Hirsch, 342 So.2d 970 (Fla.1977); The Florida Bar v. Pahules, 233 So.2d 130 (Fla.1970); State ex rel. The Florida Bar v. Dunham, 134 So.2d 1 (Fla.1961).

The discipline recommended by the referee is inadequate. Requiring the respondent to satisfactorily pass the multi-state professional responsibility examination and to pay the costs of these proceedings does little in the way of providing justice to the public, correcting the anti-social tendencies of the respondent or deterring other attorneys from similar conduct. Instead, we suspend respondent, Bernard J. Penn, from the practice of law for six months and thereafter with proof of rehabilitation necessary for reinstatement. This suspension will run consecutively to that already imposed.

The costs of these proceedings in the amount of $1,802.71 are hereby assessed against the respondent.

It is so ordered.

ALDERMAN, C.J., and ADKINS, OVER-TON and EHRLICH, JJ., concur.

BOYD, Justice concurring:

I concur with majority except that I would adopt the referee’s report.


author: PER CURIAM. BOYD, Justice,

text:
    THE FLORIDA BAR, Complainant, v. Robert P. BUDISH, Respondent.
    No. 59501.
    Supreme Court of Florida.
    Oct. 28, 1982.

      John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Jacquelyn Plasner Needelman, Bar Counsel, Fort Lauderdale, of The Florida Bar, for complainant.
    Robert P. Budish, in pro. per.
   PER CURIAM.

We have for review the report and recommendation of the referee. Jurisdiction is pursuant to article V, section 15, Florida Constitution.

The report of the referee included the following findings:

As to Count I
1. Based on instructions of Respondent or his agent, the October 10, 1979 edition of the Miami Herald carried an advertisement indicating that Respondent’s legal clinic would charge $75.00 plus costs to perfect a change of name.
2. After reading the advertisement, Ms. Florence Valentino telephoned Respondent’s office and made an appointment for an office conference.
3. On October 23, 1979, Ms. Valentino went to Respondent’s office at the appointed time. Respondent told Ms. Valentino that it would cost her $100.00 in attorney’s fees and $44.00 for costs to perfect a change of name. Ms. Valentino immediately issued a check to Respondent for $144.00.
As to Count II
4. Based on instructions of Respondent or his agent, between April 23, 1979 and May 23, 1979, the Hollywood Sun Tattler carried an advertisement indicating that Respondent’s legal clinic would not charge for an initial consultation.
• 5. After reading the advertisement,
Mrs. Wilma Knapp telephoned Respondent’s office and made an appointment for a consultation.
6. On May 23, 1979, Mrs. Knapp went to Respondent’s office at the appointed time and spoke with Respondent regarding her dissolution of marriage proceedings.
7. At the conclusion of the five (5) minute consultation, Respondent or his agent requested payment of $35.00. Mrs. Knapp immediately issued a check to Respondent for $35.00.
8. Respondent performed no additional work for Mrs. Knapp and has refused to refund the $35.00 payment.
As to Count III
9. Respondent had been doing business under the name of Citizens Legal Services of Hollywood, Inc.
10. Citizens Legal Services of Hollywood, Inc. employed Stewart Doe as its president. Stewart Doe is not an attorney.

The referee recommended that respondent be found guilty as to all counts, and that he receive a private reprimand and be placed on probation with the following conditions:

1. that respondent be placed on probation for a period of three (3) years;.
2. that, during the probationary period, respondent’s work be supervised by a member of The Florida Bar, who is approved by The Florida Bar and respondent;
3. that respondent submit monthly reports to The Florida Bar designating the cases, he is handling, and the status of said cases;
4. that respondent take and pass the ethics portion of The Florida Bar examination within one year from the date of the Supreme Court’s order; and
5. that respondent submit to psychiatric treatment if deemed necessary during his probationary period.

The referee further recommended that respondent make restitution to Ms. Valentino concerning Count I, and to Mrs. Knapp in the amount of $35.00 concerning Count II.

We do not believe that the referee’s recommendation of a private reprimand is appropriate in this case. Although the referee properly considered respondent’s drug problem and his subsequent rehabilitation as mitigating circumstances in making his recommendation, in view of the nature of respondent’s misconduct, a public reprimand is appropriate.

The public should be able to rely on and have confidence in the truthfulness of an attorney’s advertisement to the public. In this case, two clients were misled by respondent’s false and misleading advertisements. False and deceptive advertising has a great potential for harm, and when an attorney publicly misleads or deceives the public, the public is entitled to be properly informed that such conduct is in violation of this Court’s advertising rules and regulations, and that the offending attorney has in fact been disciplined. A private reprimand does not adequately apprise the public of these matters. Only through a public reprimand are the interests of the public protected.

With respect to the referee’s recommendation of probation and conditions of probation, we find that these recommendations are unrelated to respondent’s misconduct and unnecessary for his rehabilitation or the protection of the public interest. Respondent is not charged with rendering incompetent legal services. Rather, he is charged with the advertisement of false and misleading statements in violation of Disciplinary Rules 1-102(A)(4), 2-101(A), 2-101(B)(3) and (6) and the employment of a non-lawyer as president of his legal clinic in violation of Disciplinary Rules 2-102(B), 5-107(C) and Florida Bar Integration Rule, article II, section 7. Given the nature of these violations, we do not feel that the placement of respondent on supervised probation for a period of three years would assist in his rehabilitation, or promote the public’s interest. Also, concerning the recommendation that respondent submit to psychiatric treatment if deemed necessary, we believe that this requirement is unnecessary inasmuch as the referee indicated in his recommendation that a psychiatrist had previously determined that respondent was not in need of psychiatric treatment.

For the foregoing reasons, we do not accept all of the referee’s recommendation for disciplinary action, and instead find that the appropriate remedy in this case is for respondent to be required to make restitution and be given a public reprimand without probation or additional disciplinary action, and that he shall take and pass the ethics portion of The Florida Bar examination within one year from the date of this order.

Costs in the amount of $751.25 are assessed against respondent.

It is so ordered. .

• ALDERMAN, C.J., and ADKINS, OVER-TON, McDonald and EHRLICH, JJ., concur.

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

BOYD, Justice,

concurring in part and dissenting in part.

I concur in the public reprimand and the imposition of costs of this proceeding against respondent. I would adopt the referee’s findings that respondent violated the Code of Professional Conduct. I do not feel that the placement of respondent on supervised probation for a period of three years would assist in his rehabilitation, or promote the public’s interest. Similarly, except for any punitive effect, I fail to see how the referee's recommendation that respondent take and pass the ethics portion of the Florida Bar Examination would be beneficial to either the public or respondent. Finally, concerning the recommendation that respondent submit to psychiatric treatment if deemed necessary, I believe that this requirement is unnecessary inasmuch as the referee indicated in his recommendation that a psychiatrist had previously determined that respondent was not in need of psychiatric treatment.


author: BOYD, Justice.

text:
    Erling Knud Ove HANSEN, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 61315.
    Supreme Court of Florida.
    Oct. 28, 1982.
    Baya Harrison, III, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen. and David P. Gaul-din, Asst. Atty. Gen., Tallahassee, for respondent.
   BOYD, Justice.

This cause is before us to review a decision of the District Court of Appeal, First District, State v. Hansen, 404 So.2d 199 (Fla. 1st DCA 1981). The decision directly and expressly conflicts with State v. Carroll, 378 So.2d 4 (Fla.4th DCA), cert. denied, 385 So.2d 761 (Fla.1980). We have jurisdiction to resolve this conflict. Art. V, § 3(b)(3), Fla. Const.

Petitioner was charged with sexual battery upon a person eleven years of age or younger in violation of section 794.011(2), Florida Statutes (1979). The trial court granted petitioner’s motion to dismiss the indictment on the ground that since the victim was eleven years and three months of age at the time of the crime, she was not a person eleven years of age or younger as provided for in the statute. The trial court relied on State v. Carroll, which held that the statute is ambiguous and therefore should be construed in favor of the accused. On appeal, the district court reversed and remanded for trial, holding that the statute is clear.

We find the reasoning expressed in the opinion of the district court to be correct and we adopt it as our own. The decision of the first district in Hansen is accordingly approved. The decision of the fourth district in Carroll is disapproved.

It is so ordered.

ALDERMAN, C.J., and ADKINS and OVERTON, JJ, concur.

McDONALD, j., dissents.


author: EHRLICH, Justice.

text:
    LIBERTY COUNTY, etc., Petitioner, v. BAXTER’S ASPHALT & CONCRETE, INC., Respondent.
    No. 61498.
    Supreme Court of Florida.
    Oct. 28, 1982.
    Bill A. Corbin, Blountstown, for petitioner.
    Barry Richard and James J. Richardson of Roberts, Baggett, LaFace, Richard & Wiser, Tallahassee, and L. Charles Hilton, Jr., Panama City, for respondent.

      Jane E. Heerema of Roberts, Egan & Routa, Tallahassee, for State Ass’n of County Com’rs, amicus curiae.
   EHRLICH, Justice.

This cause is before the Court for review of a decision of the district court of appeal, Baxter’s Asphalt & Concrete, Inc. v. Liberty County, 406 So.2d 461 (Fla. 1st DCA 1981), which expressly and directly conflicts with Wester v. Belote, 108 Fla. 976, 138 So. 721 (1931) and William A. Berbusse, Jr., Inc. v. North Broward Hospital District, 117 So.2d 550 (Fla. 2d DCA 1960). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

In March 1980, the Board of County Commissioners of Liberty County (Liberty County) advertised for bids on a road resurfacing project. Bids were requested for two mutually exclusive types of asphalt, Alternate A (asphaltic concrete) and Alternate B (a sand asphalt hot mix). Either alternative was acceptable for the roads to be resurfaced.

Seven companies bid on the project. Since the County Engineer inadvertently failed to forward to Gulf Asphalt Corporation (Gulf) the last page of an information sheet requiring bids on both Alternates A and B, Gulf bid only on Alternate B (which was the industry practice only to bid on one alternate). Gulf’s Alternate B bid was $906,895.59, the low bid. The next lowest bid on Alternate B was $1,055,201.46 submitted by Baxter’s Asphalt & Concrete (Baxter’s). For Alternate A, the lowest bid was Baxter’s at $1,094,226.60.

At an April 1980 Commission meeting, the County Engineer recommended that Gulf’s bid on Alternate B be accepted since it was $148,000 less than the bid by Baxter’s on the same Alternate. Gulf’s bid on Alternate B was likewise less than the low bid of Baxter’s on Alternate A. The Board unanimously waived the irregularity of Gulf’s not submitting a bid on Alternate A and awarded the contract to Gulf.

Baxter’s immediately filed suit and obtained a temporary injunction preventing Liberty County from entering into a contract with Gulf. At trial in May 1980, the court ruled in favor of Liberty County and Gulf and the injunction was dissolved. Baxter’s appealed and the district court in March 1981 found that Gulf’s failure to bid on Alternate A violated section 336.44, Florida Statutes (1979), the competitive bid statute for the construction of county roads. The court directed Liberty County to read-vertise the bids. However, since there was no restraining order during the time of appeal and the district court had denied a motion for a stay pending appeal, Liberty County had already entered into a contract with Gulf for the resurfacing project and Gulf had completed the project. All parties moved for a rehearing and the district court filed a second opinion in November 1981, holding that Liberty County was liable to Baxter’s for damages, including reasonable costs and attorney’s fees, based upon Liberty County’s implied promise to comply with the competitive bid statute by its solicitation of bids, but was not liable to Baxter’s for loss of profits or other consequential damages. Liberty County then sought discretionary jurisdiction in this Court. For the reasons expressed herein, we quash the decision of the district court.

In Florida, competitive bidding for the construction of county roads is controlled by chapter 336, Florida Statutes (1979). Pertinent subsections state that the contract shall be let to the lowest responsible bidder but that the public body may reject any or all bids and require new bids to be made. Baxter’s argues that these sections should be strictly construed and that strict standards be placed upon public authorities when competitive bids are required by law. It cites a decision of the Supreme Court of New Jersey, L. Pucillo & Sons, Inc. v. Mayor of New Milford, 73 N.J. 349, 375 A.2d 602 (1977), as highly persuasive of its view; that case is distinguishable on at least two grounds, however. First, public policy in New Jersey is to curtail the discretion of local authorities by demanding absolute compliance with public bidding guidelines. Pucillo 375 A.2d at 605; Township of Hillside v. Sternin, 25 N.J. 317, 136 A.2d 265 (1957). In Florida, on the other hand, a public body has wide discretion in soliciting and accepting bids for public improvements and its decision, when based on an honest exercise of this discretion, will not be overturned by a court even if it may appear erroneous and even if reasonable persons may disagree. Ber-busse; Culpepper v. Moore, 40 So.2d 366 (Fla.1949). Second, the winning bidder in Pucillo gained a palpable economic benefit because of his bidding deviations and hence had an advantage over his competitors. In the case at bar, there was no such economic advantage. Gulf was put in no position superior to that of Baxter’s or the other high bidders by its failure to submit a bid on Alternate A. Given the mutually exclusive nature of the two alternatives, the county commissioners had a full panoply of seven bids on Alternative B which they could compare with particularity and specificity. They then could make the informed choice from among the seven comparative bids as to which one was the lowest responsible bidder. In the instant case, Liberty County did this and picked Gulf. We find no error in this procedure.

This Court has previously said that public bids statutes “serve the object of protecting the public against collusive contracts and prevent favoritism toward contractors by public officials and tend to secure fair competition upon equal terms to all bidders, [and] they remove temptation on the part of public officers to seek private gain at the taxpayers’ expense, are of highly remedial character, and should receive a construction always which will fully effectuate and advance their true intent and purpose and which will avoid the likelihood of same being circumvented, evaded, or defeated.” Wester 138 So. at 724. Nothing in this policy is subverted by the trial court’s actions. That court found that there was no connection between Gulf and any of the county commissioners which would have helped the latter in their decision-making. More importantly, the court found no illegality, fraud, oppression, or misconduct on the part of either Liberty County or Gulf and that Liberty County acted in good faith in the awarding of the subject bid. With no fraud or misconduct on Liberty County’s part, it was clearly within the commission’s discretion to award the subject bid to Gulf.

Baxter’s further argues and the district court agreed that the waiving of the bid irregularity was unlawful since Gulf’s failure to comply with the specifications was material. We disagree. Similar to Wood-Hopkins Contracting Co. v. Roger J. Au & Son, Inc., 354 So.2d 446 (Fla. 1st DCA 1978), the instant case is a situation of a relatively minor irregularity in the technical bidding requirements. Liberty County in the Advertisement for Bids reserved the right to waive irregularities in any bid and we find under the facts of the present case (with trial court findings of no fraud or misconduct on Liberty County’s part and with no competitive advantage accruing to Gulf), that there was substantial compliance with the bidding statute.

Lastly, Baxter’s argues that the district court was correct in awarding it damages based upon the.doctrine of promissory es-toppel in that “the public entity by soliciting bids promised that the contract would be awarded to the lowest possible bidder, and that the rejected bidder reasonably and detrimentally relied on that promise.” 406 So.2d at 466. We need not address this issue since it has been found that the lowest responsible bidder was in fact Gulf and not Baxter’s.

The opinion of the district court of appeal is hereby quashed and the final judgment of the trial court is reinstated.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON and McDONALD, JJ., concur.

      . All construction and reconstruction of roads and bridges, including resurfacing ... shall be let to contract to the lowest responsible bidder by competitive bid....
      § 336.41(3), Fla.Stat. (1979).
      Such contract shall be let to the lowest competent bidder....
      § 336.44(2), Fla.Stat. (1979).
      The commissioners may reject any or all bids and require new bids to be made.
      § 336.44(5), Fla.Stat. (1979).


author: McDONALD, Justice.

text:
    STATE of Florida, Petitioner, v. Jerry GREEN, Respondent.
    No. 61517.
    Supreme Court of Florida.
    Oct. 28, 1982.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for petitioner.
    Joseph S. Farley, Jr. of Mahon, Mahon & Farley, Jacksonville, for respondent.
    Louis 0. Frost, Jr., Public Defender, and Susan T. Lewis and James T. Miller, Asst. Public Defenders, Fourth Judicial Circuit, Jacksonville, for amicus curiae.
   McDONALD, Justice.

The First District Court of Appeal has certified the following question as being of great public importance:

Where the requirements of Florida Rule of Criminal Procedure 3.172 are otherwise met but the trial judge does not advise a guilty pleading defendant that the trial judge might retain jurisdiction over a part of his sentence, must the defendant be allowed to withdraw his guilty plea if the trial judge thereafter determines to retain such jurisdiction where the defendant testifies that he did not know that the trial court could retain jurisdiction over his sentence and there is no evidence that he did have such knowledge?

Green v. State, 406 So.2d 1148, 1150 (Fla. 1st DCA 1981). We have jurisdiction. Art. V, § 3(b)(4), Fla.Const. We answer the question by holding that in a situation as set out in the certified question the trial court must either strike the retention of jurisdiction, letting the original plea stand, or else must allow the defendant to withdraw the guilty plea.

The state charged Green with two life felonies, burglary with the intent to commit an assault and sexual battery with the use or threat to use a deadly weapon. Green agreed to plead guilty to both counts, with the understanding that the maximum possible sentence would be two consecutive life terms. At the plea hearing Green stated that he understood the consequences of his plea and signed a form evidencing this knowledge. The court accepted the plea and ordered a presentence investigation. Later, at the sentencing hearing, the state requested that the court sentence Green to a lengthy term of years and retain jurisdiction over the sentence pursuant to section 947.16, Florida Statutes (1979). The court called a recess to study the retention issue.

The court sentenced Green to consecutive terms of ninety years for the sexual battery and fifty years for the burglary, retaining jurisdiction over the first one-third of the cumulative sentence. A motion to vacate and set aside the sentence alleging that there had been no indication regarding the maximum sentence possible was filed and denied. Green admitted knowing he could have received consecutive life sentences, but not that the judge could retain jurisdiction and possibly affect his actual sentence to such an extent. The trial judge agreed, when denying the motion, that Green had not been informed of the possible retention.

The district court reversed, finding that Green had not been properly apprised of the time significance and consequences of his guilty plea. It remanded for the trial court either to strike the retention of jurisdiction or to allow Green to withdraw his guilty plea.

The issue raised by the certified question is whether the trial judge is required to advise a guilty-pleading defendant of the possibility of retaining jurisdiction over a part of the defendant’s sentence. The essential requirements for the taking of a guilty plea are: (1) The plea must be voluntary; (2) the defendant must understand the nature of the charge and the consequences of his plea; and (3) there must be a factual basis for the plea. Williams v. State, 316 So.2d 267 (Fla.1975). These requirements were incorporated into Florida Rule of Criminal Procedure 3.172 when adopted by this Court in Florida Bar, re: Florida Rules of Criminal Procedure, 343 So.2d 1247 (Fla.1977).

The district court based its decision on rule 3.172(c)(i) which states:

(c) Except where a defendant is not present for a plea, pursuant to the provisions of Rule 3.180(c), the trial judge should, when determining voluntariness, place the defendant under oath and shall address the defendant personally and shall determine that he understands the following:
(i) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law....

The nature of the problem is defining what the “maximum possible penalty provided by law” is.

The state contends that retention of jurisdiction is a collateral consequence of the plea and not included within this standard. See Johnson v. Dees, 581 F.2d 1166 (5th Cir.1978); Edwards v. State, 393 So.2d 597 (Fla. 3d DCA), review denied, 402 So.2d 613 (Fla.1981). The state also argues that Green was advised of the maximum penalty when the court informed him of the possibility of receiving two life sentences. These arguments are not convincing, however. The sentence of imprisonment for consecutive ninety- and fifty-year terms with retention of jurisdiction over the first third of the total sentence is the direct consequence of the guilty plea. Under the present parole system, even if sentenced to two life terms, Green would be eligible for parole in a significantly shorter period than the possible forty-seven years under the retention.

While retention of jurisdiction does not guarantee that the defendant will remain imprisoned for that period of time, the purpose behind section 947.16 is to prevent the early parole of dangerous prisoners without the sentencing judge’s consent. Borden v. State, 402 So.2d 1176 (Fla.1981). The imposition of retention, therefore, is a significant consideration in the plea bargaining arrangement and should be explained to a defendant before his plea is accepted, otherwise he would not be fully advised of the consequences of his plea.

The United States Supreme Court has indicated that in order for a plea to be voluntary, it must be made by one fully aware of the direct consequences. Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970). Failure to so advise prohibits a defendant from rendering a truly voluntary and knowledgeable waiver of the constitutional rights inherent in the plea arrangement. Brady v. United States; Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

While it is possible that Green would not have to remain in prison for forty-seven years before a release on parole, the possibility does exist and that consequence is greater than the possibility of parole without the retention. While some may question which is the greater sentence, two consecutive life terms or 140 years, we need not reach this question because the retention of jurisdiction for a period of forty-seven years makes that sentence the greater penalty of the two.

Therefore, if a judge wishes to retain jurisdiction, a defendant must be advised, prior to pleading guilty or nolo contendere, that the court can retain jurisdiction over a part of the sentence. The district court has properly concluded that, on remand, the trial court must choose between retaining jurisdiction and allowing Green to withdraw his guilty plea. The decision of the district court, as amplified in the motion for rehearing, is approved.

It is so ordered.

ADKINS, BOYD, OVERTON and EHRLICH, JJ., concur.

ALDERMAN, C.J., dissents.'

      . § 810.02, Fla.Stat. (1979).

      . § 794.011(3), Fla.Stat. (1979).


author: OVERTON, Justice.

text:
    STATE of Florida, Petitioner, v. Carlos Wayne HICKS, Respondent.
    No. 61557.
    Supreme Court of Florida.
    Oct. 28, 1982.
    Jim Smith, Atty. Gen., and Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach, for petitioner.
    James B. Gibson, Public Defender and James R. Wulchak, Chief, Appellate Div., Asst. Public Defender of the Seventh Judicial Circuit,' Daytona Beach, for respondent.
   OVERTON, Justice.

This is a petition to review a decision of the Fifth District Court of Appeal reported as Hicks v. State, 407 So.2d 252 (Fla. 5th DCA 1981). The district court in Hicks held that non-consent to entry is an essential element of burglary under section 810.02(1), Florida Statutes (1979), which the state must allege in an information or indictment. We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and find conflict with State v. Jackson, 281 So.2d 353 (Fla.1973); Howard v. State, 400 So.2d 1329 (Fla. 4th DCA 1977), cert. denied, 364 So.2d 888 (Fla.1978). We hold that consent to entry is an affirmative defense to, rather than an essential element of, burglary, and quash the decision of the district court.

Hicks was charged by an amended information with armed burglary and grand theft. He moved to dismiss the amended information, relying on section 810.02(1), which provides: “ ‘Burglary’ means entering or remaining in a structure or conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.” (Emphasis added.) He contended that the statute, as written, makes non-consent to entry an essential element of burglary. Because the state failed to allege this element, Hicks asserted, the information must be dismissed. The trial court denied the motion, agreeing with the state that consent to entry under section 810.02(1) is an affirmative defense. At trial Hicks was convicted of grand theft and burglary of a dwelling, a lesser included offense of armed burglary.

The district court, in reversing Hicks’ conviction, used the rule of statutory construction set forth in Baeumel v. State, 26 Fla. 71, 7 So. 871 (1890), to interpret section 810.02(1). The district court found the phrase “unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain" to be part of the enacting clause of the statute under the Baeumel test and concluded that non-consent to entry was, therefore, an essential element of burglary. In reaching its determination, the district court recognized that this Court, in State v. Jackson, 281 So.2d 353 (Fla.1973), held that under the then-existing burglary statute non-consent to entry was not an essential element of burglary, but was a sub-element of breaking. The district court concluded, however, that Jackson is no longer applicable because the burglary statute was revised in 1975. The district court reasoned that when the legislature revised the statute, eliminating breaking as an element, it inferentially elevated non-consent to a statutory element of the crime. The district court concluded that “with ‘breaking’ no longer required, it is necessary to directly allege the element of non-consent.” Hicks, 407 So.2d at 254. Judge Cowart dissented, taking issue with this construction of the statute.

We disagree with the district court’s reasoning. While section 810.02(1) has eliminated breaking as an essential element in all burglary offenses, we reject the view that the statute as it is now written establishes non-consent to entry as an essential element of burglary. We find that as used in section 810.02(1), the word “unless" is a qualifier to the primary sentence of the statute, separating the consent phrase from the enacting clause and making consent an affirmative defense. We agree with Judge Cowart in his dissent that a proper application of the Baeumel test results in this conclusion.

Moreover, a review of the statute’s history reveals that the legislature, in revising the burglary chapter, intended only to consolidate the burglary offenses and did not intend to make non-consent to entry an essential element of burglary. The common law crime of burglary consisted of breaking and entering the dwelling house of another at night with the intent to commit a felony therein. Prior to the adoption of the present statute in 1975, the Florida Statutes’ chapter on burglary contained numerous burglary offenses, some of which required breaking and entering with intent to commit a crime, and others of which merely required an entering with intent to commit a crime. The pre-1975 offense of entering, without breaking, with the intent to commit a felony under section 810.03, Florida Statutes (1973), did not contain a non-consent element. See State v. High, 281 So.2d 356 (Fla.1973). Furthermore, with those burglary offenses which had breaking as an element, non-consent was merely a sub-element of breaking. In 1975, these various burglary offenses were consolidated into the present statute, and Florida, like many jurisdictions, deleted breaking from the required elements. Non-consent to entry was not an essential element of burglary prior to the 1975 revision, and we find that the phrasing of the new statute does not reflect a legislative intent to make non-consent an essential element of burglary. The critical element in both the prior and present burglary statutes is that a defendant enter or remain in the premises “with the intent to commit an offense therein.”

We note that section 810.07, Florida Statutes (1979), which existed prior to the 1975 revision, provides that the state can establish a prima facie case of burglary by showing that a defendant stealthily, and without the consent of the owner, entered a structure. This provision allows the state to use proof of non-consent as a means of establishing the intent element, but it does not recognize non-consent as an element of burglary.

For the reasons expressed, we quash the decision of the district court of appeal and direct that Hicks’ conviction be reinstated.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, McDONALD and EHRLICH, JJ., concur.

      . Chapter 810, Florida Statutes (1973), contained the following burglary offenses: Breaking and entering a dwelling house with intent to commit a felony therein (810.01); breaking and entering other buildings, ships, or vessels with intent to commit a felony therein (810.02); entering without breaking with intent to commit a felony therein (810.03); breaking and entering a railroad car with intent to commit a felony (810.04); breaking and entering with intent to commit a misdemeanor (810.05); and breaking and entering or entering without breaking a vehicle (810.051).

      . Those jurisdictions which have eliminated the breaking requirement from their burglary statutes include: Ala.Code § 13 A-7-5, -6, -7 (1977); Ariz.Rev.Stat. § 13-1506, 1507, 1508 (1981); Ark.Stat.Ann. § 41-2002 (1977); Cal. Penal Code § 459-60 (1978); Colo.Rev.Stat. Ann. § 18-4-202, -203, -204 (1981); Conn. Rev.Gen.Stat. § 53a-101 (1981); Del.Code Ann. § 11-824, -825, -826 (1979); Ga.Code Ann. § 26-1601 (1981); Hawaii Rev.Stat. § 708-810 (1976); Idaho Code Ann. § 18-1401 (1979); Ill.Stat.Ann. ch. 38 § 19-1 (1977); Iowa Code § 713.1 (1981); La.Rev.Stat.Ann. § 14:60 (1974); Minn.Stat. § 609.58 (1980); Mont.Code Ann. § 45-6-204 (1981); N.H.Rev. Stat.Ann. § 635:1 (1974); N.Y.Penal Law § 140.20, .25, .30 (1982); Ore.Rev.Stat. § 164.-215, 225 (1981); 18 Pa.C.S.A. § 3502 (1973); Tex.Penal Code § 30.02 (1974); Utah Code Ann. § 76-6-202 (1978); Wash.Rev.Code § 9A.52.020, .030 (1981); Wis.Stat.Ann. § 943.-10 (1982).


author: McDonald, justice.

text:
    James WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 61582.
    Supreme Court of Florida.
    Oct. 28, 1982.

      Charles G. Brackins of the Law Offices of Meldon & Brackins, Gainesville, for petitioner.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for respondent.
   McDonald, justice.

The First District Court of Appeal has certified the following question as being of great public importance:

Does the rule of exclusion announced in State v. Sarmiento, 39[7] So.2d 643 (Fla.1981), and Hoberman v. State, 400 So.2d 758 (Fla.1981), provide grounds for post-conviction relief when raised for the first time in a Rule 3.850 proceeding by a defendant whose conviction became final before these decisions were filed?

Williams v. State, 406 So.2d 1246,1247 (Fla. 1st DCA 1981) (footnote omitted). We have jurisdiction and answer the certified question in the negative.

Williams was charged with two violations of section 893.13 Florida Statutes (1977): (1) possession and (2) sale of marijuana. He was convicted of both charges and on March 5, 1979 was sentenced to five years on each count, the sentences to run concurrently. On appeal the district court reversed the conviction for possession but affirmed the conviction for the sale of marijuana. This Court denied certiorari, and Williams filed a petition for writ of habeas corpus in the United States District Court for the Northern District of Florida. That court dismissed the writ for failure to exhaust state remedies.

Williams then filed a petition for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, alleging that the trial court admitted into evidence a tape recording of a conversation in his home in violation of State v. Sarmiento, 397 So.2d 643 (Fla.1981). He contends that the confidential informant involved in the sale of marijuana wore a recording device and illegally taped their conversations held inside Williams’ home, without a warrant and without his knowledge or consent. The trial court denied the petition and the district court affirmed, certifying the question to this Court.

The basis of the certified question is whether our decision in Sarmiento should be applied retroactively to cases that were final at the time Sarmiento was rendered. Sarmiento held that “the warrantless, electronic interception by state agents of a conversation between defendant and an undercover police officer in defendant’s home is an unreasonable interception of defendant’s private communications in violation of article I, section 12, Florida Constitution.” Id. at 644. We have applied Sarmiento to cases not yet final when it was rendered, see Hoberman v. State, 400 So.2d 758 (Fla.1981), but have not dealt with its retroactive application to finalized eases.

The standard applicable in determining whether a judicial decision announcing a change in the law is to be applied retroactively is found in Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980). In Witt the defendant sought post-conviction relief from his conviction of first-degree murder and sentence of death. The petition alleged six different changes in the law since the conviction and asserted the right to obtain the benefits of the subsequent, favorable case law developments relating to capital punishment and to criminal law in general. In denying relief this Court held that “an alleged change of law will not be considered in a capital case under Rule 3.850 unless the change: (a) emanates from this Court or the United States Supreme Court, (b) is constitutional in nature, and (c) constitutes a development of fundamental significance.” Id. at 931 (emphasis in original).

This Court went on to state that most of the law changes of “fundamental significance” will fall within two broad categories:

The first are those changes of law which place beyond the authority of the state the power to regulate certain conduct or impose certain penalties. This category is exemplified by Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), which held that the imposition of the death penalty for the crime of rape of an adult woman is .forbidden by the eighth amendment as cruel and unusual punishment. The second are those changes of law which are of sufficient magnitude to necessitate retroactive application as ascertained by the three-fold test of Stovall [v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967)] and Linkletter [v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) ]. Gideon v. Wainwright, [372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963),] of course, is the prime example of a law change included within this category.
In contrast to these jurisprudential upheavals are evolutionary refinements in the criminal law, affording new or different standards for the admissibility of evidence, for procedural fairness, for proportionality review of capital cases, and for other like matters. Emergent rights in these categories, or the retraction of former rights of this genre, do not compel an abridgment of the finality of judgments. To allow them that impact would, we are convinced, destroy the stability of the law, render punishments uncertain and therefore ineffectual, and burden the judicial machinery of our state, fiscally and intellectually, beyond any tolerable limit.

387 So.2d at 929-30 (footnotes omitted).

In denying Witt’s petition, the court found that three of the alleged law changes were nonconstitutional, evolutionary developments in the law, one alleged change was from an intermediate federal court and therefore ineligible for consideration, the fifth was not a “change of law” because it was not a precedent, and the sixth change was dismissed on factual grounds.

While the rule 3.850 motion in Witt concerned a capital conviction, the standards established in Witt are fully applicable to noncapital cases. In the instant case the district court found that Sarmiento constituted merely a refinement in the criminal law insufficient to warrant retroactive application to Williams’ conviction.

Williams’ challenge meets the first two requirements, that is, the decision in Sar-miento came from this Court and concerned the interpretation of Article I, Section 12 of the Florida Constitution. In determining whether Sarmiento constitutes a development of fundamental significance we apply the three-fold test established by the United States Supreme Court in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), and adopted in Witt. The three relevant criteria for deciding fundamental significance are: (1) the purpose to be served by the particular new rule; (2) the extent of reliance which has been placed upon the old rule; and (3) the effect on the administration of justice of a retroactive application of the new rule. 388 U.S. at 297, 87 S.Ct. at 1970. See Annot. 22 L.Ed.2d at 825 (1970).

The purpose to be served by the rule announced in Sarmiento is to deter illegal police action. An important consideration is that the exclusion of the illegally obtained evidence would not enhance the reliability of the fact-finding process as such evidence is relevant and reliable. The rule has no bearing on guilt and did not involve an attack on the fairness of the trial because the rule is based on the necessity for an effective deterrent to illegal police action. The purpose of the new rule can be achieved without applying the rule retroactively.

In determining the extent of reliance on pre-Sármiento law we look to the law in effect at the time of the decision. As pointed out by Justice Alderman in his dissent to Sarmiento, in recording the conversations the police acted in accordance with section 934.03(2)(c), Florida Statutes (1977), and the United States Supreme Court has held that it is not an unreasonable or unconstitutional search and seizure for an agent to record the conversations he was a party to. United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979); United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971). It was reasonable, therefore, for the officers to rely upon pre-Sarmiento law. That significant reliance has been placed on the old rule is an important factor supporting prospective application of the new rule.

The effect on the administration of justice of a retroactive application of the new rule also strongly supports prospective application. Exclusion of evidence seized before Sarmiento would increase the burden of the administration of justice by requiring hearings on excluding evidence possibly long since destroyed, misplaced, or deteriorated, and, if excluded, witnesses available at the time of the original trial may not be available or, if located, their memory might be dimmed. Retroactivity would overturn convictions based on fair reliance upon pre-Sarmiento decisions and would exclude evidence that is relevant and reliable without serving as a deterrent to similar surveillance in the future.

Therefore, we agree with the district court that Sarmiento is not a decision of fundamental significance requiring its retroactive application to eases that were final when the decision was rendered. The certified question is answered in the negative, and the decision of the district court is approved.

It is so ordered.

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

      . Art. V, § 3(b)(4), Fla.Const.

      . 377 So.2d 755 (Fla. 1st DCA 1979).

      . 385 So.2d 762 (Fla.1980).

      . The record does not conclusively show that a Sarmiento violation occurred. The state asserts that the informant who wore the bugging device was standing outside the door of Wil-Hams’ home during the recorded conversation. The district court indicated that the state’s position was supported by inferences drawn from the testimony of the informant, but the issue was not directly addressed in the testimony and, so, would require an evidentiary hearing if the certified question were answered in the affirmative. 406 So.2d at 1247, n. 2.

      . Williams contends that Sarmiento was “foreshadowed, if not preordained,” by Toliett v. State, 272 So.2d 490 (Fla.1973), and Markham v. Markham, 272 So.2d 813 (Fla.1973), making the Witt analysis inapplicable because of Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). In Barber the Supreme Court did not use the Stovall test but justified retroactivity on the basis that the decision was “foreshadowed, if not preordained” by an earlier decision. We do not agree that Sarmiento was foreshadowed by Markham or Toliett.

      . The recent United States Supreme Court decision of United States v. Johnson, - U.S. -, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982) (No. 80-1608), is inapplicable because it is limited to changes of law affecting the fourth amendment to the United States Constitution. Additionally, Johnson is not a post-conviction relief case, and the Court specifically refrained from considering collateral attacks on fourth amendment issues.


text:
    Pedro Luis PEREZ, et ux., et al., Petitioners, v. MAULE INDUSTRIES, INC., et al., Respondents.
    No. 62010.
    Supreme Court of Florida.
    Oct. 28, 1982.
    Edward A. Perse, of Horton, Perse & Ginsberg, and Carroll, Halberg & Meyerson, Miami, for petitioners.
    C. Robert Murray, Jr., of Mitchell, Harris, Canning, Murray & Usich, Miami, for respondents.
   McDONALD, Justice.

Perez v. Maule Industries, Inc., 411 So.2d 960 (Fla. 3d DCA 1982), is quashed as being in conflict with Gulfstream Land & Development Co. v. Wilkerson, 420 So.2d 587 (Fla.1982).

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Jerry R. HUSSEY, Respondent.
    No. 62131.
    Supreme Court of Florida.
    Oct. 28, 1982.
    Patricia J. Brown, Bar Counsel, The Florida Bar, Tampa, for complainant.
    Bob G. Freemon, Jr., Tampa, for respondent.
   PER CURIAM.

The respondent, a member of The Florida Bar, has petitioned this Court for permission to resign from the bar pending disciplinary proceedings. The board of governors voted to support the resignation if certain conditions were agreed to. The Bar and the respondent have stipulated that they have discussed the conditions and agree that the conditions to respondent’s resignation are fair and just and are acceptable to both parties.

After reviewing the record in this case, we grant Jerry R. Hussey’s petition for leave to resign with the following conditions:

1. The resignation is without leave to reapply, pursuant to Florida Bar Integration Rule, article XI, rule 11.08(6).
2. Respondent is ordered to pay all costs involved in this proceeding, as well as in all pending disciplinary proceedings.
3. Full restitution will be made to any client harmed by respondent’s trust account violations.

Respondent’s resignation from The Florida Bar shall be effective thirty days from the filing of this opinion, thereby giving respondent time to close out his practice and protect his clients’ interest. During this thirty-day period, respondent shall accept no new legal clients. Costs in the amount of $1,992.85 are hereby taxed against Respondent.

It is so ordered.

ADKINS, Acting C.J., and BOYD, OVERTON, McDONALD and EHRLICH, JJ., concur.


text:
    SANTA ROSA BBFH, INC.; George Bull and Mary T. Bull; and Atlantic Beach Management, Inc., Appellants, v. ISLAND ECHOS CONDOMINIUM ASSOCIATION and Mutual Federal Savings and Loan Association of Pensacola, Appellees. MUTUAL FEDERAL SAYINGS AND LOAN ASSOCIATION OF PENSACOLA, Appellant, v. ISLAND ECHOS CONDOMINIUM ASSOCIATION; Santa Rosa Island BBFH, Inc.; George Bull and Mary T. Bull; and Atlantic Beach Management, Inc., Appellees.
    Nos. AG-89, AH-49.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1982.
    Rehearing Denied Dec. 2, 1982.
    Donald H. Partington of Clark, Parting-ton, Hart, Hart & Johnson, Pensacola, for Santa Rosa BBFH, Inc., George Bull and Mary T. Bull, and Atlantic Beach Management, Inc., appellants.
    James G. Etheredge, Fort Walton Beach, for Island Echos Condominium Ass’n, appel-lee.
    Siegfried F. Kessler of Smith, Grimsley, Remington, Kessler & Simpson, Fort Walton Beach, for Mut. Federal Sav. and Loan Ass’n, appellee.
   PER CURIAM.

The order of the trial judge entered August 17, 1981 is affirmed. Rule 1.220(b), Florida Rules of Civil Procedure (1977), republished in 1980 as Rule 1.221. The trial court’s entry of summary judgment based on its construction of the declaration is proper and can be sustained on a number of grounds. First, on the record, the equities are with Island Echos Condominium Association. See Welch v. Point of Americas Condominium Apartments, 378 So.2d 60 (Fla. 4th DCA 1979). Second, any ambiguity in a declaration of condominium is to be construed against the author of the declaration, i.e., the developer. See, Kaufman v. Shere, 347 So.2d 627 (Fla. 3d DCA 1977).

Our affirmance does not extend to the issue raised by Mutual Federal Savings and Loan Association concerning the validity of its mortgage upon the leasehold interest in Unit 1-G. That issue was not addressed in, nor resolved by, the order of summary judgment and is still pending before the trial court for further consideration.

BOOTH, SHIVERS and JOANOS, JJ., concur.

      . See, Reibel v. Rolling Green Condominium Association, Inc., 311 So.2d 156 (Fla. 3d DCA 1977); Avila South Condominium Association, Inc. v. Kappa Corporation, 347 So.2d 599 (Fla.1977).


author: JOANOS, Judge.

text:
    Frank P. PICCOLO, and his wife, Myrtice Piccolo, Appellants, v. HERTZ CORPORATION, Appellee.
    No. AG-460.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1982.
    Rehearing Denied Nov. 29, 1982.
    Michel L. Stone of Urquhart & Pittman, P.A., Panama City, for appellants.
    Benjamin W. Redding and Thomas F. Welch of Barron, Redding, Boggs, Hughes, Fite & Bassett, P.A., Panama City, for ap-pellee.
   JOANOS, Judge.

This appeal involves the question of the applicability of the Louisiana statute permitting direct action against the insurer alone. The relevant facts are that Appellant Frank Piccolo was injured in a motor vehicle accident in Louisiana. The other driver, Kiern, was driving a Hertz rental vehicle. The Piccolos filed a complaint and amended complaint in Florida naming Hertz Corporation as the sole defendant.

The trial court granted a motion to dismiss the amended complaint. The motion urged that the Piccolos had not joined the insured driver as a party defendant and that the insured is an indispensable party to a direct action against the liability insurance carrier. In the order, the trial court ruled:

[T]he Louisiana Direct Action Statute relied upon by Plaintiff is procedural in nature and not, therefore, applicable to this action. Plaintiff- having failed to join the alleged insured as required by the law of Florida, the Amended Complaint should be dismissed for failure to join an indispensable party.

The first issue presented to us is whether the Louisiana statute at issue, La.Rev.Stat. Section 22:655 (1950), is substantive for choice of laws purposes. On this issue, the United States Supreme Court’s case of Lumbermen’s Mutual Casualty Co. v. Elbert, 348 U.S. 48, 75 S.Ct. 151, 99 L.Ed. 59 (1954), is controlling. Lumbermen’s was a diversity of citizenship case wherein the Court evaluated the effect of the Louisiana direct action statute. There was diversity of citizenship between the plaintiff and the insurer (the sole defendant), but not between the plaintiff and the insured alleged tortfeas'or. Rejecting the insurer’s contention that the “matter in controversy” was the underlying tort liability and the insured was the real party-defendant in interest, the Court noted that the plaintiff’s suit under the Louisiana law encompassed proof of the tortfeasor’s negligence, but also required proof of liability under the insurance policy. In so ruling, the Court adopted the Louisiana courts’ characterization of the statute as “creating a separate and distinct cause of action against the insurer which an injured party may elect in lieu of his action against the tortfeasor.” [emphasis supplied] 348 U.S. at 51, 75 S.Ct. at 154.

Appellee contends that the Florida Supreme Court specifically held in Markert v. Johnston, 367 So.2d 1003 (Fla.1978), that joinder of liability insurers was procedural in Florida. On the contrary, the supreme court determined that it was not necessary to resolve that issue since the statute under challenge attempted to control the timing of joinder during the course of trial, not the fact of joinder, and timing is a procedural matter.

Appellee also relies on Cozine v. Tullo, 394 So.2d 115 (Fla.1981), wherein the Florida Supreme Court struck down Section 768.045, Florida Statutes (1977), prohibiting joinder of a liability insurer in an action to determine the insured’s liability, as an impermissible invasion of the court’s rule-making authority, thus considering the statute procedural. The question of joinder is different from the question of whether a suit may be maintained in the first place; the former is procedural, whereas the latter is substantive. Accordingly, we hold that the Louisiana direct action statute is substantive.

The second issue presented is whether the insured is an indispensable party to this suit. Appellee urges that Roberts v. Nationwide Mutual Fire Insurance Co., 355 So.2d 219 (Fla. 1st DCA 1978), and Kephart v. Pickens, 271 So.2d 163 (Fla. 4th DCA 1972), are controlling on this point. Both of those cases involved out-of-state incidents, out-of-state insureds, Florida residents, insurers who were qualified to do business in Florida, and the issue of the failure to join an indispensable party. However, a reading of those cases reveals no discussion of a conflict of laws issue. One cannot discern whether the issue was even raised. Nor can one discern whether the states in which the incidents occurred had direct action statutes, such as the one at issue here. Accordingly, those cases are not dispositive.

In Lumbermen’s, the United States Supreme Court directly rejected the contention that the tortfeasor was an indispensable party. When the plaintiff chooses to proceed directly against the insurer under the statute, he or she abandons the right to bring suit against the tortfeasor. Thus, the Court concluded, the entire claim may be disposed of in the direct action without injustice to any of the participants. This leads to the conclusion that the insured is not an indispensable party to this suit.

Accordingly, the trial court’s dismissal with prejudice is REVERSED and REMANDED for further proceedings consistent with this opinion.

WIGGINTON, J. and OWEN, WILLIAM C., Associate Judge, concur.


text:
    FUTURA REALTY, INC., Gonzalo R. Lage, Sr., and Arthur Draper, Appellants, v. Lawrence WIGDOR and Wigdor Realty, Inc., Appellees.
    Nos. 81-2095, 81-2097.
    District Court of Appeal of Florida, Third District.
    Aug. 31, 1982.
    On Rehearing Nov. 23, 1982.

      Lapidus & Stettin and Robert P. Frankel, Fleming & Huck and Joseph Fleming, Miami, for appellants.
    Charles L. Neustein, Miami Beach, for appellees.
    Before BARKDULL, DANIEL S. PEARSON, and FERGUSON, JJ.
   PER CURIAM.

We find no error in the trial court granting a summary judgment that recognized the right of a fee-title holder, of an undivided interest in a parcel of real property, to bring a statutory action for partition regardless of his motives and any equitable defenses to such action should be presented therein and not in an independent action. Condrey v. Condrey, 92 So.2d 423 (Fla.1957); Williams v. Ricou, 143 Fla. 360, 196 So. 667 (1940); Lockwood v. Walker, 127 Fla. 20, 172 So. 359 (1937); Montgomery v. Carlton, 99 Fla. 152, 126 So. 135 (1930).

We also find no error in the trial judge recognizing by the entry of a summary judgment that a party who owns in fee-simple an interest in real property does not have to voluntarily sell his interest, therein notwithstanding the desire to sell of the other title holders. His motive for refusing to sell is immaterial. Compare: Williams v. Wells Fargo Bank & Union Trust Co.; 56 Cal.App.2d 645,133 P.2d 73 (D.C. 3d Dist., Cal.1943); Bailey v. Vaughn, 375 So.2d 1054 (S.Ct.Miss.1979); Croston v. Male, 56 W.Va. 205, 49 S.E. 136 (S.Ct.W.Va. 1904); 59 Am.Jur.2d, Partition § 118.

Therefore the final summary judgments here under review be and the same are hereby affirmed.

Affirmed.

OPINION ON REHEARING

By petition for rehearing the appellants contend that the property in question was in fact titled in a partnership and not owned individually.

We grant the rehearing and recede from so much of the opinion that affirms the summary judgment with the following instructions: we direct the trial court to determine how the property in question is titled. If it is in individual names then he should confirm the summary judgment. If the property in question is titled in a partnership, then he should vacate the summary judgment.

      . Different rights and responsibilities might obtain if the parties owned the property in a partnership. Cf., Farrell v. Forest Investment Company, 73 Fla. 191, 74 So. 216 (1917); 12 Fla.Jur.2d, Cotenancy and Partition, § 130; 59 Am.Jur.2d, Partition § 186.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    James BOYKIN, Appellant, v. STATE of Florida, Appellee. James BUCHANAN, Appellant, v. STATE of Florida, Appellee. William CHIPPAS, Appellant, v. STATE of Florida, Appellee. Lucius Allen THARP, Appellant, v. STATE of Florida, Appellee.
    Nos. 81-11, 81-213, 81-469 and 81-955.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 1982.
    Rehearing Denied Nov. 12, 1982.
    Michael H. Tarkoff of Flynn, Rubio & Tarkoff, Miami, for appellants Buchanan and Boykin.
    Mark Krasnow, Miami, for appellant Chippas.
    Murray M. Wadsworth of Wadsworth & Davis, Tallahassee, for appellant Tharp.
    Jim Smith, Atty. Gen., Tallahassee, Mark C. Menser, and Evelyn D. Golden, Asst. Attys. Gen., Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellants Chippas, Boykin, Buchanan and Tharp appeal their convictions for conspiracy to traffic in excess of 100 pounds of cannabis and trafficking in excess of 100 pounds of cannabis. While Chippas and Tharp were tried separately, the convictions here arise from the same events and essentially involve the same issues.

The state basically sought to prove that Chippas was the organizer and financier of an operation, in which Boykin, Buchanan and Tharp participated, to fly a plane load of marijuana from Colombia, Smith America to an airstrip in Osceola County. Chip-pas had an ownership interest in certain ranch land near Kenansville, in Osceola County, on which the airstrip was located.

The evidence below established that láw enforcement officials received information in February, 1980, that Chippas and his alleged co-conspirators were engaged in suspicious activities at a Cypress Gardens motel. A Polk County sheriff’s investigator, Kendrick, testified that on February 18, 1980, he overheard a man later identified as Hilton Hobbs, talking on a public telephone about a plane and “going south.” Kendrick spoke with Hobbs who said he was a pilot.

On February 21, 1980, Kendrick saw Tharp and Chippas arrive separately at the motel. Kendrick observed Tharp enter Hobb’s room. He also saw Chippas, Buchanan and Boykin loitering on the balcony outside. Boykin subsequently obtained a room at the motel which was paid for by Chippas.

On February 22, 1980, Hobbs and Tharp drove to a private aviation firm in Osceola County. The following day, Boykin, Buchanan and Chippas drove to a motel at Yeehaw Junction, near the Kenansville airstrip.

Meanwhile, law enforcement officials, believing that a drug importation scheme might be in the works, placed the Kenans-ville airstrip under surveillance. The ranch on which the airstrip was located was surrounded with barb wire fencing and thick shrubbery.

On the evening of February 23, Buchanan and Boykin drove to a gate which led to the airstrip and parked. Also present at an abandoned house near the strip was Tharp. The night was foggy and no plane .landed. The next morning, after Buchanan and Boykin had visited the airstrip, a plane landed and law enforcement officials converged on the area. A state game warden who resided nearby cut a chain to one of the gates to permit entry to the airstrip property.

When officers entered the airplane, they detected marijuana residue on the carpet. A pick-up truck loaded with what appeared to be numerous wrapped bales was observed near the plane. The officers could smell marijuana emanating from the bales and indeed one of the bales was broken and marijuana was observed. This evidence was seized by the officers. Hobbs was arrested as he walked from the plane and aerial maps were taken from him. A fingerprint from Chippas was later found to be on one of the maps.

Law enforcement officials who had placed the Yeehaw Junction motel under surveillance observed Chippas and Buchanan talking together about fifteen minutes after the plane had landed. Buchanan then left after receiving what one officer described as hand signals from Chippas. Chippas was arrested as he left the motel a short time later.

At Chippas’ trial, Hobbs testified, stating that Chippas offered him $30,000 to pilot the airplane carrying marijuana from Colombia to his private airstrip at Kenansville.

Appellants’ initial point is that the trial court erred in denying their motions to suppress the marijuana found in the back of the pick-up truck. The attack on the validi- . ty of the search is two-fold: first, that the warrantless entry of the airstrip property was illegal and second, that the search of the wrapped bales discovered in the pickup truck was impermissible. We hold that only Chippas, who owned the airstrip property and Tharp, who owned the pick-up truck, have standing to argue these points. See Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Coster v. State, 392 So.2d 16 (Fla. 3d DCA 1980).

The trial court found that:
There was not probable cause based upon the totality of the circumstances for the officers to believe that a crime was being committed until the airplane, the Quee-naire, landed on the property in question at approximately 11:00 a.m. on Sunday, February 24, 1980. In other words, the officers then had probable cause to believe that a crime was being committed, to-wit the bringing onto the premises and possession of a load of contraband or marijuana pursuant to an alleged conspiracy.
The court further held,
On February 24, 1980, at 11:00 a.m., the officers had probable cause to enter the property and there were exigent circumstances because the airplane had just landed and there was not sufficient time to secure a warrant because of the mobility of the plane.

In Adoue v. State, 408 So.2d 567 (Fla.1982), the Florida Supreme Court recognized that the “automobile exception” of Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) and Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed.2d 543 (1925), applies to airplanes as well. In Carroll, the Supreme Court held that automobiles or other mobile vehicles may be searched without a warrant where an officer, authorized to search, has probable cause for believing that the vehicle is carrying contraband. See also Guin v. City of Riviera Beach, 388 So.2d 604 (Fla. 4th DCA 1980) (where officers have probable cause to believe a crime is in progress and there is no reasonable opportunity to obtain a warrant, exigent circumstances exist and justify a warrantless entry and search).

The record here amply supports the trial court’s finding that the officers first had probable cause to believe that a crime was in progress when they saw the plane landing and since the plane containing the contraband could have taken off at any moment, exigent circumstances existed which justified the warrantless entry onto the property.

As to the search of the marijuana bales, even assuming that the bales were opened by the police, we believe that United States v. Ross, - U.S. - , 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), disposes of this issue. In Ross, the Supreme Court held that where officers have probable cause to believe that a vehicle contains evidence of a crime, the officers may search every part of the vehicle and its contents, including all containers and packages that may conceal the object of the search. Here there is no doubt that the police had probable cause to believe that the pick-up truck contained evidence of a crime. Officers, who observed marijuana residue in the airplane, could smell marijuana emanating from the bales and on the truck. One of the bales was broken and marijuana was observed. In addition, a custom’s agent at the scene had seen approximately 500 tons of marijuana previously, some of which was packaged in identical-type bags.

Appellants next challenge the sufficiency of the evidence to support their convictions. We find that there is substantial, competent evidence in the record to support each of the convictions. McIlwain v. State, 402 So.2d 1194 (Fla. 5th DCA 1981).

As to the sentences imposed, the record reveals that Boykin and Buchanan were both given split sentences which violate Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981). Therefore, their sentences are vacated and the causes in Cases No. 81-11 and 81-213 are remanded for resentencing. See Bentley v. State, 411 So.2d 1361 (Fla. 5th DCA 1982). In all other respects, the convictions and sentences in these cases are affirmed.

Convictions AFFIRMED, sentences VACATED and causes REMANDED in Cases No. 81-11 and 81-213 for re-sentencing.

ORFINGER, C.J., and COWART, J., concur.

      . Chippas referred to Boykin as a business partner when arranging for the room.

      . The bales were wrapped in opaque nylon bags.

      . Boykin and Buchanan neither owned nor were on the property when the police arrived and both of them denied any proprietary interest in the bales of marijuana.

      . There is nothing in the record here to establish that the police ever opened any of the bales.

      . Chippas also challenges the constitutionality of section 893.135, Florida Statutes (1979), which imposes a mandatory minimum term of imprisonment (in this case of three years) which must be imposed unless the defendant “provides substantial assistance in the identification, arrest or conviction of any of his accomplices, accessories, co-conspirators, or principals.” The constitutionality of this section has been upheld in numerous recent cases, including State v. Newman, 405 So.2d 971 (Fla.1981); State v. Werner, 402 So.2d 386 (Fla.1981); and State v. Benitez, 395 So.2d 514 (Fla.1981).

      . Boykin was sentenced on the trafficking count to a “30 year split sentence with six years [imprisonment] followed by 24 years probation” and was given 15 years on the conspiracy count, with 5 years to be served in jail. Buchanan was sentenced on the conspiracy count to 15 years imprisonment and on the trafficking count to 30 years, with the first 15 years in prison followed by 15 years probation.