author: PER CURIAM. COWART, Judge,

text:
    Stanley Eugene MILES, Appellant, v. STATE of Florida, Appellee.
    Nos. 81-496, 81-583.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 1982.
    Rehearing Denied Sept. 10, 1982.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

Appellant was charged with two separate aggravated assaults, case numbers 78-1638 and 78-1749. On case number 78-1749, appellant was released on bail and notified to appear before the trial judge for a pre-trial conference on January 15, 1979. On case number 78-1638, appellant was released on his own recognizance and notified to appear before the trial judge for a pre-trial conference on January 15, 1979. Appellant failed to appear before the trial judge on January 15, 1979, and he was charged in case number 80-1589 with two counts of willfully failing to appear for his pre-trial conference.

Appellant moved for a statement of particulars and while the state responded, it provided nothing that distinguished count I from count II.

The defense then moved to dismiss the information on the ground that count II was identical to count I, but the motion was denied. On appeal, appellant has requested this court to vacate one of the judgments and sentences.

We agree with appellant’s contention. Count II was identical in its language to count I. The state did not supply any additional information distinguishing the two charges in its statement of particulars nor was the jury instructed that in count I appellant was charged with committing a separate and distinct crime from that charged in count II. Thus, it appears that appellant was twice charged with and later convicted of, the same crime. It is basic that one cannot be placed in jeopardy twice for the same offense. U.S.Const.Amend. V, There being nothing to distinguish count I from count II, the conviction for one must be vacated. Therefore, the conviction and sentence as to count I are AFFIRMED. As to count II, the conviction is REVERSED and the sentence VACATED.

AFFIRMED in part, REVERSED in part.

ORFINGER, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially:

I agree with the conclusion and much of what is said in the majority opinion. I do not agree with the implications in the majority opinion that whether two certain offenses are “the same offense” within the constitutional double jeopardy prohibition can be correctly determined from an examination of the charging document alone. Charging documents may sometimes indicate that two accusations (charges) are based on separate and distinct statutory crimes or are based on two separate and distinct factual events thereby eliminating the application of the double jeopardy clause and permitting the accused to be placed in jeopardy of trials, convictions or sentences as to both. However, because of the criminal law principle that, in the absence of a statement of particulars, allegations in the charging document as to time are not of the essence and proof may relate to facts occurring at any time within the applicable statute of limitations, even allegations that facially appear to relate to different factual events may not do so upon examination of the proof offered in support of the allegations. For the same reason, it is even more dangerous to look at the accusatory document in an attempt to ascertain if two charges relate to the exact same factual event so as to bar jeopardy as to trials, convictions and sentences as to both. In referring to the failure of the statement of particulars in this case to make a factual distinction between the two charges, the majority opinion indicates some awareness of the danger, but the majority opinion does not give an adequate warning of the danger of comparing the allegations in charging documents in double jeopardy questions involving identity of offenses. We should clearly state that double jeopardy is a matter of fundamental substance and is grounded on the law and the facts and point out the limited value and reliability of the charging document as evidence of either the legal difference between the elements of statutory crimes charged or as an accurate indication of whether the actual facts underlying the charges relate to one or to two different and distinct factual events for double jeopardy purposes. The last sentence in Florida Rule of Criminal Procedure 3.140(o), suggesting that a charging document is subject to dismissal if it is so vague, indistinct and indefinite as to expose the accused “after conviction or acquittal to substantial danger of a new prosecution for the same offense,” is insufficient in scope to fully effectuate an accused’s double jeopardy constitutional rights for several reasons. First, as explained above, the rule erroneously implies that the factual and legal questions involved in double jeopardy cases can be determined from the charging document or documents. Next, the rule relates only to the notion of “former jeopardy,” which contemplates only a prior and a subsequent prosecution. However, the concept of double jeopardy not only includes such successive prosecutions, but also includes multiple simultaneous prosecutions by way of multiple informations consolidated for a single trial and, as in this case, multiple counts in one information, when such multiple informations or multiple counts relate to offenses which under proper legal analysis are constitutionally, and in substance, one and the same offense.

The essential question involved in this appeal is whether the two offenses charged in the two counts in information 78-1589 are “the same offense” within the meaning of constitutional double jeopardy. Any two offenses are “the same offense” within the constitutional double jeopardy prohibition if, (a) in law, both have the identical essential constituent elements or all of the essential constituent elements of one offense are entirely included in the essential constituent elements of the other offense, and, (b) in fact, both offenses relate to the exact same factual event.

Each of the two counts in information number 78-1589 related to a violation of one and the same statutorily defined offense (§ 843.15(l)(a), Fla.Stat. (1979)), so there can be absolutely no legal question relating to an identity of the statutory offenses which might lead to a determination that such offenses alleged in the two counts are separate and distinctly different in law by virtue of each having at least one element different from the other. The essential constituent elements of the two alleged statutory offenses are identical and, therefore, the first half of the full proper test for determining the applicability of the double jeopardy clause is met. The only question left is whether the two offenses as charged relate to the same or to two different factual events. As charged in the two counts, and, more importantly, as shown by the uncontradicted evidence in the record, both offenses of failure to appear relate to one and the exact same factual event (in this particular case an omission rather than an act), to-wit: the failure of the appellant to appear at the one exact same time and place, i.e., at 9:00 a. m. on January 15,1979, before one and the same trial judge in the courthouse in DeLand, Florida. Therefore, since both counts in the information charge offenses which are identical in law and in fact they are “the same offense” within the meaning of both the federal and state constitutions and appellant cannot properly be placed in jeopardy of trial, conviction or punishment for both.

Instead of arguing the above constitutional double jeopardy concepts, appellant argued that he could not be convicted of both crimes “since each is a facet of the same criminal transaction,” citing Walker v. State, 386 So.2d 630 (Fla. 5th DCA 1980), and Jane v. State, 362 So.2d 1005 (Fla. 4th DCA 1978). The majority opinion fails to discuss appellant’s argument. I believe it should be dealt with openly. This argument, and the cases cited, refer to the “single transaction rule.” This legal argument is being made in the courts daily. Unfortunately, the state’s usual reply, as in this case, impliedly concedes the existence and applicability of the rule and the validity of the argument but attempts to avoid it by arguing that appellant’s argument relates only to whether or not appellant can be sentenced for both crimes and not to whether he can be tried for both. Most unfortunately, trial and appellate courts are currently still deciding cases on the basis of this outdated argument which misunderstands the current state of the law. The single transaction rule never had anything to do with constitutional double jeopardy; it was never more than somewhat of a distorted court-made substitute for the constitutional principle and has done much to confuse courts as to a proper appreciation and application of the constitutional concept. Moreover, the single transaction rule was abolished in Florida, effective October 1, 1976, by the enactment of section 775.-021(4), Florida Statutes. See, e.g., Borges v. State, 415 So.2d 1265 (Fla.1982); Gonzalez v. State, 367 So.2d 1008 (Fla.1979); State v. Munford, 357 So.2d 706 (Fla.1978); Portee v. State, 392 So.2d 314 (Fla. 2d DCA 1980). Therefore, certainly since October 1, 1976, any argument and any case involving the question of whether an accused can be tried, convicted or sentenced for both of two or more crimes which argument or case uses the term “facets of the same transaction” or “same episode” or similar references to the single transaction rule should be considered erroneous and disregarded as to the question here involved. The courts have a duty to continue to repeat this until it is understood and also to clearly explain the proper rationale for a correct determination and disposition of double jeopardy questions including the identification of two offenses or violations as being in law or in fact separate and distinct (thus permitting prosecutions for both), or as being in fact and in law “the same offense” within the meaning of the constitutional prohibition against double jeopardy (thus prohibiting multiple prosecutions and convictions).

      . The information in case number 81-1589 charged as follows:
      COUNT 1
      CHARGE: FAILURE TO APPEAR, in Violation of F.S. 843.15(l)(a)
      SPECIFICATIONS OF CHARGE: In that STANLEY EUGENE MILES, on or about the 15th day of January, 1979, at or near DeLand within Volusia County, Florida, did unlawfully, while released pursuant to Chapter 903, willfully fail to appear for his Pretrial Conference on charges of Aggravated Assault before the Honorable Uriel Blount, Jr. as required.
      Count II repeated verbatim the allegations of Count I. Thus, although the original crimes were separate and distinct, the information charging appellant with failure to appear contained nothing to distinguish Count I from Count II.

      . See Bartee v. State, 401 So.2d 890 (Fla. 5th DCA 1981).

      . See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); Monarca v. State, 412 So.2d 443 (Fla. 5th DCA 1982); Preston v. State, 397 So.2d 712 (Fla. 5th DCA 1981).

      . The phrase “exact same factual event” means a single occurrence in proper combination of all facts necessary to prove all essential elements of one statutory offense. This does not mean a single or same “transaction” or “episode,” which terms can include many different factual events accomplishing single violations of each of two or more different statutory offenses (as in Bass v. State, 380 So.2d 1181 (Fla. 5th DCA 1980) or two or more distinctly different violations of the same statutory offense (as in Brown v. State, 413 So.2d 1273 (Fla. 1st DCA 1982).

      . Judge William C. Owen, Jr., made this clear as early as 1971 in State v. Conrad, 243 So.2d 174 (Fla. 4th DCA 1971), but the message in that case has been generally overlooked.


source: Caselaw Access Project

author: DAUKSCH, Judge. dissenting:

license: Public Domain

text:
    Shannon D. McGREGOR, Appellant, v. Robert B. McGREGOR, Appellee.
    No. 81-568.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 1982.
    Rehearing Denied Sept. 3, 1982.
    John Motsinger, Jr., Orlando, and Edna L. Caruso, West Palm Beach, for appellant/cross-appellee.
    Mack N. Cleveland, Jr., of Cleveland & Bridges, Sanford, for appellee/cross-appel-lant.
   DAUKSCH, Judge.

This is an appeal from an order modifying a judgment in a marriage dissolution case. The primary issue, one which has caused this court grave concern in this case, is the changing of custody of the two minor sons from the mother to the father. We have examined this record quite carefully and must determine the father failed to carry the heavy burden placed upon him to permit the court to change the custody of nine-year-old Shawn from the mother to the father. We are quite aware it is usually best for brothers to stay together during their formative years, but we agree with the trial judge’s determination that the evidence supports a change of custody for thirteen-year-old Mark. The trial judge apparently found and the evidence reveals that Mark needs to live with his father during his difficult teenage years and his father is very capable of providing the boy’s needs. However, there is no evidence Shawn has the special needs which can best be provided by his father and there is ample evidence his mother is quite capable of continuing to be the fit parent the trial court first determined she was. A litigant who seeks to change a custody order carries an extraordinary burden. See Stricklin v. Stricklin, 383 So.2d 1183 (Fla. 5th DCA 1980). We have determined that burden was not carried with regard to the change of custody of Shawn.

The order of modification, in so much as it changes the custody of Shawn, is reversed and this cause is remanded for the trial court to revisit the alimony and support matters which may need adjustment due to this decision. In all other respects the order is affirmed.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

COBB, J., concurs.

FRANK D. UPCHURCH, Jr., J., dissents with opinion.

FRANK D. UPCHURCH, Jr., Judge,

dissenting:

I respectfully dissent from the portion of the majority opinion which reverses the order of modification for the reasons stated in Kershner v. Crocker, 400 So.2d 126 (Fla. 5th DCA 1981).


author: COWART, Judge.

text:
    HEAVENER, OGIER SERVICES, INC., Appellant, v. R. W. FLORIDA REGION, INC. and R. W. Florida, Inc., Appellees.
    No. 81-1069.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 1982.
    Rehearing Denied Sept. 7, 1982.

      Thomas M. Baumer of Gallagher, Bau-mer, Mikals & Bradford, P.A., Jacksonville, for appellant.
    Leon H. Handley and Francis E. Pierce, III, of Gurney, Gurney & Handley, P.A., Orlando, for appellees.
   COWART, Judge.

This case involves a temporary injunction against the tortious interference with a contractual relationship by one national real estate franchisor soliciting the franchise holders of another national real estate franchisor.

Each party is in the business of selling to local brokers the real estate associate franchises of two competing national real estate chains. Appellee had existing franchise contracts for terms of years with certain franchisees and appellant, knowing of these contracts, actively, and aggressively solicited appellees’ franchisees to enter into franchise agreements with appellant. Appellant’s franchise agreement required the franchisee to act exclusively for appellant; thus, if the solicitation was successful, it was necessary for appellees’ franchisees’ to terminate their contract with appellees. Under these circumstances the trial judge issued a temporary injunction restraining each party from contacting franchisees of the other for the purpose of inducing or persuading such franchisees to breach their existing agreement and to enter into a franchise agreement with the soliciting party. Appellant appeals. We affirm.

In seeking a temporary injunction, the moving party must generally show (1) a clear legal right or interest in the subject matter of the suit, (2) a substantial likelihood of success on the merits and (3) the likelihood of irreparable harm because of the unavailability of an adequate remedy at law. See, e.g., Russell v. Florida Ranch Lands, Inc., 414 So.2d 1178 (Fla. 5th DCA 1982). Temporary injunctions have been recognized as a viable form of relief in a suit for tortious interference with a contract. See, e.g., Knight v. City of Miami, 127 Fla. 585, 173 So. 801 (1937); Dade Enterprises, Inc. v. Wometco Theaters, Inc., 119 Fla. 70, 160 So. 209 (1935). However the proof required for each of these elements is not clear and in suits of this type irreparable harm is sometimes assumed. In Insurance Field Services, Inc. v. White & White Inspection & Audit Service, Inc., 384 So.2d 303 (Fla. 5th DCA 1980), this court held that the essentials of the tort of tor-tious interference with contract were:

(1) the existence of an advantageous business relationship under which the plaintiff has legal rights;
(2) an intentional and unjustified interference with that relationship by the defendant, and
(3) damage to the plaintiff as a result of the breach of the business relationship.
Id. at 306.

These essentials can be broken down into more elemental parts as: (1) an advantageous (2) business relationship (3) under which plaintiff has legal rights, plus (4) an intentional and (5) unjustified (6) interference with that relationship (7) by the defendant which (8) causes (9) a breach of that business relationship and (10) consequential damages.

Although all the above are elements must be proven, the cases generally turn upon the proof submitted with regard to elements (4) and (5): the intentional and unjustified interference. In Insurance Field Services, this court stated

The question of whether appellants’ admittedly intentional interference was unjustifiable depends upon a balancing of the importance, social and private, of the objective advanced by the interference against the importance of the interest interfered with, considering all circumstances among which the methods and means used and the relation of the parties are important. Restatement 2d, Torts § 767 and comments.
384 So.2d at 306-07.

If a defendant interferes with a contract in order to safeguard a preexisting economic interest of his own, the defendant’s right to protect his own established economic interest outweighs the plaintiff’s right to be free of interference, and his actions are usually recognized as privileged and nonactionable. However, where a defendant has no prior economic interest of his own to safeguard but only a prospective business advantage that is not yet realized, the defendant has no such privilege to interfere with an existing contract. Here, competition and free enterprise must give way to the existing contract and the party’s right to rely on that contract. One exception to this rule is where the existing contract is terminable at will; competition is then recognized as a privilege because the plaintiff’s right to have the relationship continue is only an expectancy and this right loses when balanced against both the interferer’s legitimate rights in pursuing a prospective business advantage and the public policy of free enterprise. However, there is an exception to this exception. Even if the contract is terminable at will, the interferer’s actions are tortious and actionable if the motive is purely malicious and not coupled with any legitimate competitive economic interest. In such a situation, the interfered party’s mere expectancy that the contract will continue outweighs a purely malicious motive.

Under the facts stated above, the trial court correctly entered an injunction finding, without ruling on the merits, that appellee presented evidence indicating a “substantial likelihood of success on the merits.”

The injunction in the instant case enjoined both the plaintiff and the defendant from contacting by mail, telephone call, personal visit, or otherwise any franchisee of the opposing party for the purpose of offering to sell a franchise, furnishing information concerning the sale of a franchise, or inducing or persuading any such franchisee to breach its franchise agreement with the other party. The injunction went on to provide that if contact was initiated by the opposing party’s franchisee, the parties were only allowed to furnish written information concerning their franchise programs and were required to include a written notice they would be pleased to meet with the interested franchisee after that franchisee’s present contractual agreement had expired. As written, the injunction enjoined the parties from initiating contacts with a franchisee of the other party, even if the purpose of the contact was to discuss changing franchises at the conclusion of the franchisee’s existing agreement. Although the injunction was very broad in this respect, the policing of a more closely defined injunction would be difficult and the practical effect of the injunction would be emasculated. Therefore the injunction as written was not overly broad and is

AFFIRMED.

DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . See, e.g., Unistar Corp. v. Child, 415 So.2d 733 (Fla. 3d DCA 1982), adopted en banc on rehearing, 415 So.2d 733 at 735 (Fla. 3d DCA 1982) [1982 FLW 1439]; cf. Sentry Ins. v. Dunn, 411 So.2d 336 (Fla. 5th DCA 1982) (irreparable injury presumed in case involving violation of a covenant not to compete and therefore need not be alleged or proved).

      . This opinion was written by a panel of Fourth District Court of Appeal judges sitting as associate judges for the Fifth District Court of Appeal.

      . Every district court of appeal has accepted the above statement as a correct statement of the elements of the subject tort. See, e.g., Wackenhut Corp. v. Maimone, 389 So.2d 656 (Fla. 4th DCA 1980); Ethyl Corp. v. Balter, 386 So.2d 1220 (Fla. 3d DCA 1980), review denied, 392 So.2d 1371 (Fla.), cert. denied, 452 U.S. 955, 101 S.Ct. 3099, 69 L.Ed.2d 965 (1981); Sutton v. Stewart, 358 So.2d 119 (Fla. 1st DCA 1978); Serafino v. Palm Terrace Apartments, Inc., 343 So.2d 851 (Fla. 2d DCA 1976).

      . Whether the business relationship is advantageous or not would effect the damages suffered.

      . This element encompasses the requirement that the defendant know about the contract he is interfering with. See, e.g., Sutton v. Stewart, 358 So.2d 119 (Fla. 1st DCA 1978); Smith v. Ocean State Bank, 335 So.2d 641 (Fla. 1st DCA 1976).

      . Additionally, there is some question as to whether a plaintiff must prove the interference was “unjustified,” or whether “justification” is a matter of defense with the burden of proof on the defendant. Both the Third and Fourth Districts have held that the plaintiff need only show an intentional interference and that this shifts the burden to the defendant to show that his interference was justified or privileged. See, e.g., Wackenhut Corporation v. Maimone, 389 So.2d 656 (Fla. 4th DCA 1980); Ethyl Corporation v. Balter, 386 So.2d 1220 (Fla. 3d DCA 1980), review denied, 392 So.2d 1371 (Fla.), cert. denied, 452 U.S. 955, 101 S.Ct. 3099, 69 L.Ed.2d 965 (1981).

      . See, e.g., Ethyl Corp. v. Balter, 386 So.2d 1220 (Fla. 3d DCA 1980), review denied, 392 So.2d 1371 (Fla.), cert. denied, 452 U.S. 955, 101 S.Ct. 3099, 69 L.Ed.2d 965 (1981) (interfering defendant held position as major creditor and co-obligor on a note with the plaintiff, therefore “interference” was to protect own economic interest); Nitzberg v. Zalesky, 370 So.2d 389 (Fla. 3d DCA 1979) (interfering defendant was mortgage lender); Babson Bros. Co. v. Allison, 337 So.2d 848 (Fla. 1st DCA 1976), cert. denied, 348 So.2d 944 (Fla. 1977) (interfering defendant was controlling stockholder in corporation). See also Restatement (Second) of Torts § 769 (1979).

      . See, e.g., Unistar Corp. v. Child, 415 So.2d 733 (Fla. 3d DCA 1982), adopted en banc on rehearing, 415 So.2d 733 at 735 (Fla. 3d DCA 1982).

      . See generally W. Prosser, Law of Torts § 129, at 942 46 (1971); Restatement (Second) of Torts § 767 comment (f), § 768 (1979).

        . Chipley v. Atkinson, 23 Fla. 206, 1 So. 934 (1887); Ethyl Corp. v. Balter, 386 So.2d 1220 (Fla. 3d DCA 1980), review denied, 392 So.2d 1371 (Fla.), cert. denied, 452 U.S. 955, 101 S.Ct. 3099, 69 L.Ed.2d 965 (1981); Babson Bros. Co. v. Allison, 337 So.2d 848 (Fla. 1st DCA 1976), cert. denied, 348 So.2d 944 (Fla. 1977).


author: ANSTEAD, Judge.

text:
    Robert ELMORE and Hardrives Company, Inc., Appellants/Cross-Appellees, v. ENTERPRISE DEVELOPERS, INC., a dissolved Florida corporation, Enterprise Properties, Ltd., A partnership, Lester A. Byron, individually and d/b/a Lester A. Byron Associates, and Gateway Industrial Center, a corporation, Appellees/Cross-Appellants.
    No. 81-52.
    District Court of Appeal of Florida, Fourth District.
    Aug. 4, 1982.
    Rehearings Denied Sept. 16, 1982.
    Kenneth G. Stevens of Dale & Stevens, Fort Lauderdale, for appellants/cross-ap-pellees:
    Paul Regensdorf, John W. Fleming and William D. Ricker, Jr., of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appel-lees/ cross-appellants.
   ANSTEAD, Judge.

This is an appeal and cross-appeal from a final judgment which adjudicated the rights of the parties resulting from a series of business transactions between the parties commencing in 1967.

The main dispute between the parties involves the interpretation of the language in an option agreement entered into between Robert Elmore and Enterprise Developers, Inc. which granted Enterprise the right to repurchase some 60 acres of land Enterprise originally conveyed to Elmore. The land was purchased by Elmore for purposes of removing rock and gravel therefrom to use in Elmore’s road paving business. The option agreement specified that the land could be repurchased by Enterprise for one price if Elmore actually elected to mine the land and another price if Enterprise did not elect to mine the land or any portion thereof. At the time the option agreement was executed the parties did not know whether the land contained materials suitable for mining. Subsequently, Elmore did mine the land, or a substantial portion thereof, although the parties are in dispute as to how much of the land was mined. However, when Enterprise attempted to exercise its rights under the option agreement the parties could not agree as to the price. Although each side initially claimed that the agreement was clear and unambiguous in its favor, the trial court determined that the agreement was ambiguous and upon trial each side presented substantial extrinsic evidence supporting its interpretation. The trial court ultimately accepted Enterprise’s view of the meaning of the agreement.

On appeal Elmore does not challenge the trial court’s ruling that the agreement was ambiguous and was subject to interpretation in the light of extrinsic evidence. Indeed, it appears that it was Elmore’s counsel, in the face of the contention by Enterprise that the agreement was clear and unambiguous, that convinced the trial court that the agreement was ambiguous and that both sides were entitled to submit extrinsic evidence as to its meaning. Elmore claims, however, that the trial court’s ruling is totally unreasonable and patently erroneous. We cannot agree.

Ordinarily, the construction placed on the terms of an agreement by a trial court must be accepted by a reviewing court unless the construction is clearly erroneous. McTeague v. Treibits, 388 So.2d 309 (Fla. 4th DCA 1980). Where the language of a contract is ambiguous or uncertain in meaning, the court may receive evidence extrinsic to the contract for the purpose of determining the intent of the parties at the time they executed the contract. Gulf Cities Gas Corp. v. Tangelo Park Service Co., 253 So.2d 744 (Fla. 4th DCA 1971). In such cases, where the provisions of the contract are susceptible of two or more meanings and there is substantial competent evidence in the record to support the meaning adopted by the trial court, we are bound to affirm that ruling just as we would be bound to sustain a finding of fact made by the trial court on disputed issues of fact. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980). The resolution of such issues is perhaps the primary function of a trial court and appellate judges are not entitled to substitute their views for that of the trial court even when they, had they been the triers of fact, would have come to a different conclusion.

In this case the parties each presented substantial evidence to support their views of the intent of the parties at the time of entering into the option agreement. The appellants do not deny the existence of the conflicting evidence. Rather, they now contend that instead of there being two or more possible meanings of the contract, there is only one reasonable interpretation: the one advocated by them. In other words, appellants now contend that the agreement is not ambiguous but is susceptible of only one interpretation. We cannot agree. First, we are faced with a record wherein appellants’ counsel emphatically urged the trial court to determine that the agreement was ambiguous and should be interpreted in the light of extrinsic evidence presented by the parties. More importantly, however, upon review of the option agreement we agree that the provisions in question are ambiguous and that the trial court’s decision to receive extrinsic evidence, as urged by appellants, was correct. Moreover, we do not believe that the trial court’s construction of the contract was patently erroneous, regardless of the fact that the members of this panel, limited to a consideration of the appellate record, may have construed the contract in favor of the appellants if they had been trying the issue. Given the existence of an ambiguity and of evidence to support the trial court’s interpretation, we are simply not authorized to retry the issue.

We have also examined the other nine points raised by appellants and find no reversible error except as to the trial court’s denial of interest on a $10,000.00 note which matured in 1970 and the amount of time the trial court provided for removal of the materials stockpiled on the land. The record reflects that the original tender of payment on the note was conditional and therefore ineffective in barring a later claim for interest. Subsequently, however, and after legal proceedings were instituted, it appears that an unconditional tender was made. Upon remand the trial court should allow interest from the date of maturity of the note until the date the trial court determines an unconditional tender was submitted. We also agree with appellants that upon remand the trial court should conduct a hearing to determíne a reasonable time within which the stockpiled materials can be removed. We find no merit in either of the two issues raised on cross-appeal.

Accordingly, we affirm the judgment and orders of the trial court except as to the matters specifically set out above and remand this cause to the trial court for further proceedings consistent herewith.

HERSEY, J., and OWEN, WILLIAM C., Jr., (Retired) Associate Judge, concur.


author: LETTS, Chief Judge.

text:
    In the Interest of K. H., a child.
    No. 81-877.
    District Court of Appeal of Florida, Fourth District.
    Aug. 4, 1982.
    Rehearing Denied Sept. 29, 1982.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Mark Horn and Marilyn Altman, Asst. Attys. Gen., West Palm Beach, for appellee.
   LETTS, Chief Judge.

In this case, a police officer promised a juvenile that if he confessed he would not be charged. The State concedes that the admission of this confession would have been improper, but argues that a subsequent confession given and admitted after the promise was withdrawn rendered the initial promise harmless. We disagree and reverse.

Without need for extensive citation, it is universally conceded that a confession obtained by threat or promise is inadmissible. Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897); Howell v. State, 66 Fla. 210, 63 So. 421 (1913); Jarriel v. State, 317 So.2d 141 (Fla. 4th DCA 1975), cert. denied, 328 So.2d 845 (Fla.1976). In the present ease, the defendant, in response to the promise, made two successive statements which were in part inconsistent and untrue. At the close of the second statement, the officer remarked that the “deal was off.” However, the officer continued to exhort the defendant to be totally honest and tell all. The defendant then made a third statement which formed both the truth and the basis for his present predicament.

We agree that the promise had been withdrawn because the defendant had been caught in a lie. Nonetheless, it appears to us that he and his mother, who was also present, had every right to suppose that if he recanted and told the complete truth, the promise not to bring charges might be revived. We do not suggest that the defendant was specifically advised that the promise would be reactivated, but there was a strong inference that it would be, especially since the promise and all of the statements were made over the course of a three hour period during a single visit to the police station.

We would stress we do not find the police tactics used here to be reprehensible, but under the existing law laid down by the United States Supreme Court such a promise made the confession involuntary. The State concedes this youth was none too bright. Moreover, it is utterly consistent with any child’s upbringing to suppose he can escape punishment by truthfulness and candor. Accordingly, we are of the opinion that the child, once having been programmed to believe that complete honesty would solve his dilemma while lies would compound it, was entitled to assume that honesty would be his best policy. We think he was right in that assumption.

REVERSED AND REMANDED.

HERSEY and DELL, JJ., concur.


text:
    A. C. KIBLER, Beatrix Meyer-Burghagen, and Freedom of Choice Realty, Inc., Appellants, v. DEPARTMENT OF PROFESSIONAL REGULATION, Appellee.
    No. 81-865.
    District Court of Appeal of Florida, Fourth District.
    Aug. 4, 1982.
    As Corrected Aug. 16, 1982.
    Rehearing Denied Sept. 14, 1982.
    Bruce J. Daniels of Lesser, Daniels & Shalloway, P.A., West Palm Beach, for appellants.

      Frederick H. Wilsen, Asst. Gen. Counsel, Tallahassee, for appellee.
   ANSTEAD, Judge.

This is an appeal from a final order of the Florida Board of Real Estate for disciplinary action against appellants A. C. Kibler, Beatrix Meyer-Burghagen and Freedom of Choice Realty, Inc. We reverse.

On July 29, 1980, the probable cause panel of the Florida Board of Real Estate met in Orlando, Florida. Those present at the meeting were Mrs. Bishop, as chairwoman; Mr. Wilsen, assistant general counsel; and Mr. Stafford, a member of the Orlando Real Estate Commission. Item Twenty on the agenda was an allegation that appellants and one Richard Testut had violated section 475.25(l)(b), Florida Statutes. Mrs. Bishop “sustained” this charge, and, on September 22, 1980, the Department of Professional Regulation filed an administrative complaint against Testut, Kibler and Meyer-Burghagen, all licensed real estate brokers, alleging that they had conspired with Stephen E. Thomas Jr., a layman, to solicit and obtain money from inactive licensees by making false and misleading statements. Appellants and Testut denied the charges and a hearing was held on December 12, 1980 before William Thomas, a hearing officer. Respondents also filed a motion to quash, asserting the Board of Real Estate’s probable cause panel was improperly constituted. Ruling on the motion was reserved, and later denied, and the hearing officer proceeded to receive conflicting evidence as to the existence of the alleged conspiracy and the participation of appellants and Tes-tut therein.

On February 18,1981, the hearing officer filed a recommended order concluding that the charges against appellants had not been proven and should be dismissed. The Department filed exceptions. Subsequently, the Board of Real Estate rendered its final order rejecting the hearing officer’s recommended order and ordered that the licenses of Testut, Kibler, Meyer-Burghagen and Freedom of Choice Realty, Inc. be suspended for ninety days and the school permit of Meyer-Burghagen be suspended for one year. The final order provided:

The Board of Real Estate upon a review of the complete record and hearing arguments from both Petitioner and Respondents rejects the Hearing Officer’s Recommended Order. The Board of Real Estate rejects the Hearing Officer’s Findings of Fact and accepts the Findings of Fact set forth in Petitioner’s Exceptions and the administrative complaint. Therefore the Board of Real Estate states that the Hearing Officer’s Findings of Fact were not based upon competent substantial evidence.

The appellants then filed a notice of administrative appeal.

Initially, appellants assert that the final order rejecting the recommendation of the hearing examiner is in violation of section 120.57(l)(b)(9), Florida Statutes, which provides:

The agency may adopt the recommended order as the agency’s final order. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order, but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The agency may accept or reduce the recommended penalty in a recommended order, but may not increase it without a review of the complete record. In the event a court reverses an agency’s order, the court in its discretion may award attorney’s fees and costs to the aggrieved prevailing party. (Emphasis supplied.)

Appellants contend that the Board failed to state “with particularity” those findings that it rejected. We agree that the order was deficient in this regard. A similar order recommending dismissal of an administrative complaint against a general contractor was found by this court to be defective in Borovina v. Florida Construction Industry Licensing Board, 369 So.2d 1038 (Fla. 4th DCA 1979). The Board’s order is distinguishable from the order in Borovina only because, here, there are documents incorporated by reference. However, the administrative complaint is nothing more than a list of allegations and the exceptions are nothing more than the Department’s view of what the examiner should have done.

It is also apparent that the Board failed to accord the recommended order of the hearing examiner the dignity it deserves. In essence, the final order is nothing more than a substitution of one set of findings for another. The proper relationship between administrative agency and hearing examiner is summarized in the case of Venetian Shores Home and Property Owners v. Ruzakawski, 336 So.2d 399, 401 (Fla. 3d DCA 1976):

We believe the entire tenor of the provisions of the Administrative Procedure Act having to do with the functions of a Hearing Examiner leads to the inescapable conclusion that the action of the agency, after a full hearing, is in the nature of a procedural review. Extensive provisions are made for remand or correction where the hearing is not complete or in accordance with the rules of due process, but there is no provision which suggests that the agency should make a new judgment upon the evidence. This relationship between agency and examiner is not new to the law. The rule long applied in chancery matters is that where a master is appointed to take the evidence and report the same, together with his findings of fact and conclusions of law, his findings should be approved by the chancellor unless clearly erroneous or it appears that the master has misconceived the legal effect of the evidence. Frank v. Frank, Fla.1954, 75 So.2d 282. We do not think that the Administrative Procedure Act can be read to grant to the head of an agency greater powers over an examiner’s findings than those of a trial judge over the findings of a master in chancery.

In other words, the Board is not authorized to substitute its interpretation of the facts for that of the hearing officer who was personally able to weigh the evidence and evaluate the testimony and demeanor of the witnesses. Sapp v. Florida Board of Nursing, 384 So.2d 254, 256 (Fla. 2d DCA 1980). The Department concedes that there was conflicting evidence as to the existence of a conspiracy and the appellants’ participation therein.

If this cause did not require reversal based on the Board’s failure to accord the findings of the hearing examiner the proper presumption of validity, it would still require reversal based on the improper constitution and action of the probable cause panel. The Department contends that the statute and regulations are silent on the number of members required to form a probable cause panel. But Rule 21V-20.09 of the Florida Administrative Code, containing the operating rules of the Board, declares: “The probable cause panel shall be composed of not less than two members of the Board, one of which shall be a lay member of the Board.” And Section 455.-225(3), Florida Statutes (1981), describing discipline of professions and occupations, provides, “The [probable cause] panel... shall be composed of board members, but not more than one of the panel members shall be a lay member.” Despite these clear requirements that there be at least two members, one broker and one lay person, the Board accepted the recommendation of a panel that consisted of only one Board member, Mrs. Bishop, who is a broker. The requirements quoted above were clearly violated by the Board.

Additionally, appellants claim the panel failed to properly consider the issue of probable cause. Section 455.255(3), Florida Statutes, requires a “determination” of probable cause by the panel, clearly implying the need for some form of evaluation. The record reflects that the only consideration of the charge filed against appellants below was as follows:

THE CHAIRMAN: Fifteen is sustained and so is sixteen. Seventeen, eighteen, nineteen. I don’t think I had twenty.
MR. WILSON: Twenty is the one that was hand delivered. It was delivered yesterday.
THE CHAIRMAN: Oh, yes. Okay. Twenty is this one. Are you aware of which one it is? Okay. Twenty is sustained. Twenty-one, twenty-two, twenty-three. That completes the sustained docket. On the next sheet we have....

Apparently item twenty on the docket was the charge against appellants. There was no evidence submitted or further discussion of the charge. In our view, this dialogue is better described as a “rubber stamp” than a determination and is clearly in violation of section 455.255(3). To sustain a probable cause determination there must be some evidence considered by the panel that would reasonably indicate that the violations alleged had indeed occurred.

We would be remiss if we did not also express our concern as to the response of the Department as to the errors discussed herein essentially to the effect that “this is the way we do things” notwithstanding the existence of the statutes and rules to the contrary. Recently, in another context, we had occasion to comment on the necessity for adherence to basic rules of procedure:

The argument is frequently encountered that requiring adherence to any procedural rule “elevates form over substance.” Form (the procedural rules) is the skeleton which holds the body of substantive law together as a cohesive whole. Without the former the latter might well become unavailable and unenforceable. The lack of procedural rules on the one hand or the selective enforcement of those rules on the other will inevitably result in' chaos, necessarily accompanied by diminished public esteem for the judicial process. In truth, then, it is not accurate to always equate the enforcement of a procedural rule with giving it preeminence over substantive rights. There is a delicate balance which must be struck between the two. In proper perspective the requirement of an orderly system ultimately assures rather than constricts the availability of substantive rights.

Morning v. State, 416 So.2d 844 (Fla. 4th DCA 1982). The adherence to rules and statutes by the very agency charged with their enforcement is especially necessary if the public and the parties regulated are to maintain respect and confidence in the decisions rendered by the agency. It is one thing to seek the revision or removal of unnecessary or burdensome rules and regulations. But to ignore such rules while they remain in force is to invite disrespect and will ultimately result in a breakdown of the system.

Accordingly, for the reasons set out above we reverse the order of the Board and direct that an order be entered approving the findings of the hearing examiner.

HERSEY, J., and OWEN, WILLIAM C., Jr., (Retired), Associate Judge, concur.

      . The Department erroneously attempts to rebut this point by asserting that there is evidence to support the Board’s order. The Department also expresses the view that the Board was entitled to reject the findings of fact of the hearing examiner because “there is competent substantial evidence to the contrary.” This turns the competent substantial rule on its head. The proper question is whether there is evidence to sustain the hearing examiner’s findings. If there is, then the Board cannot reject such findings and adopt its own.


author: GRIMES, Judge.

text:
    GRAPHIC BUSINESS SYSTEMS, INC., Appellant, v. Lynn ROGGE, Appellee.
    No. 82-849.
    District Court of Appeal of Florida, Second District.
    Aug. 4, 1982.
    Rehearing Denied Sept. 10, 1982.

      J. Brent Walker of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for appellant.
    Stephen 0. Cole of McMullen, Everett, Logan, Marquardt & Cline, P.A., Clear-water, for appellee.
   GRIMES, Judge.

Graphic brings this appeal from an order denying its motion to temporarily enjoin Rogge from working for a competing business in violation of a noncompetition agreement.

Graphic is engaged in the sale of business forms which includes the brokering of the forms from the printer to the customer. In February of 1979, Rogge went to work for Graphic as a salesman. At that time he signed an employment contract which provided in part as follows:

Employee, as an inducement to Employer to employ Employee and upon the considerations in this contract set forth, hereby promises and agrees that he will not, directly or indirectly, engage in said business forms business in the following described territory for a period of two years from and after termination of his employment, and that he will not, directly or indirectly, for himself or in connection with any person, firm or corporation, come into competition with Employer within the following described territory; and Employee will not in any manner, directly or indirectly, interfere or attempt to interfere with the business, goodwill, trade, customers or employees of Employer or with anyone dealing with Employer.
The territory shall encompass the geographic area in which the accounts of Employer are being served by Employee, and shall include all accounts serviced by Employee during the tenure of his employment. The area shall be the City of Tampa and also a radius of 75 miles from Tampa, Florida, but not to exceed the territory previously serviced by Employee, Lynn Rogge, and shall include any accounts assigned salesmen outside of the boundary.

While employed by Graphic, Rogge’s territory encompassed Hillsborough and Pinellas counties. Rogge voluntarily terminated his employment with Graphic on December 3, 1981. Thereafter, according to Graphic, Rogge went to work for a competitor, Sun-coast Business Systems, Inc., which has an office in Clearwater.

At the hearing on the temporary injunction, Robert Powers, Graphic’s Tampa district manager, testified that he had personally run into Rogge at the location of one of Graphic’s prime customers and had observed Rogge’s car at the premises of other Graphic customers. However, Graphic’s primary witness was Joseph Troins, Jr., an associate of The Rein Company, a business forms printer which supplies forms to both Graphic and Suncoast. Troins testified that since December of 1981 Rogge had placed numerous orders with The Rein Company on behalf of Suncoast and that Rogge personally handed at least half of these orders to him. Pursuant to a subpoena duces te-cum, Troins produced all the orders which Rogge had placed with The Rein Company on behalf of Suncoast. The court declined to permit Graphic to introduce these purchase orders because The Rein Company, contrary to its usual practice, had not obtained Rogge’s signature on the purchase orders.

At the conclusion of Graphic’s testimony, the court stated that it would not issue a temporary injunction. The ruling was not in response to Rogge’s motion, and the record does not indicate whether Rogge intended to present witnesses. Therefore, we assume that the court held the view that Graphic had failed to present a prima facie case. We respectfully disagree.

Employment contracts containing covenants not to compete are valid in Florida. § 542.33, Fla.Stat. (1981). The agreement must be reasonable in duration and with respect to the area within which the employee cannot compete. Capelouto v. Orkin Exterminating Co., 183 So.2d 532 (Fla. 1966). Injunction is the normal remedy for breach of the covenant. Miller Mechanical, Inc. v. Ruth, 300 So.2d 11 (Fla.1974).

In considering the propriety of a temporary injunction against the violation of an agreement not to compete, our sister court in Silvers v. Dis-Com Securities, 403 So.2d 1133 (Fla. 4th DCA 1981), said:

We can find no clear lines drawn by the cases in this area between an application for relief pending the outcome of the litigation and final injunctive relief. The usual rule is that a temporary injunction is an extraordinary and drastic remedy which should be sparingly granted. Jennings v. Perrine Fish Market, Inc., 360 So.2d 434 (Fla. 3d DCA 1978). On the other hand, the establishment of legal rights carries with it the duty to grant an appropriate remedy. Data Supplies, Inc. v. Cowart, 240 So.2d 829 (Fla. 2d DCA 1970). Because the statute specifically provides for injunctive relief and for the added reason that most or all of the harm may be done long before a final judgment is entered, we hold that where the proof supports the skeletal allegations that we have previously approved as stating a cause of action then temporary or emergency injunctive relief may properly be granted.

403 So.2d at 1137.

In Sentry Insurance v. Dunn, 411 So.2d 336 (Fla. 5th DCA 1982), the court reversed a nonfinal order denying a motion for preliminary injunction which sought to enforce the terms of a noncompetition agreement. The court observed that the terms of the agreement were reasonable and that the testimony supported the allegations that the employee had solicited business from the customers of his former employer in violation of the agreement. The court held it was an abuse of discretion to refuse the entry of the preliminary injunction.

Both the Silvers and Sentry Insurance cases held that, for purposes of obtaining a temporary injunction, irreparable injury may be presumed where there is a violation of a covenant not to compete. While the court in Uni-Chem Corp. v. Maret, 338 So.2d 885 (Fla. 3d DCA 1976), has ruled to the contrary, the practical difficulties of proving irreparable harm would tend to diminish the efficacy of covenants not to compete, which bear the imprimatur of the legislature and the courts of Florida. Moreover, the ordinary requirement to show irreparable harm applies to permanent as well as temporary injunctions, and no court has applied the rule of Uni-Chem Corp. to the entry of a permanent injunction on this subject.

The agreement not to compete signed by Rogge appears reasonable both in time and area. There is substantial evidence to show that Rogge was violating the agreement by working for one of Graphic’s competitors within the prescribed area. The absence of Rogge’s signature on Rein’s purchase orders was not a basis for refusing the introduction of the documents but rather went only to their credibility to prove Graphic’s ease. In any event, Troins testified without contradiction that Rogge personally placed half of the orders. Perhaps it is not surprising that one who may be violating an agreement not to compete would not wish to sign the purchase orders.

We reverse the order denying the temporary injunction because we believe that Graphic presented a prima facie case which warranted the entry of a temporary injunction. In fairness to Rogge, however, we cannot say that he has had an opportunity to present his case. We certainly cannot fault him for not insisting upon his right to put on testimony at the point when the court made it clear that the injunction was going to be denied. Therefore, we remand the issue of whether to grant a temporary injunction for a further hearing so as to permit Rogge to present his defense.

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


author: ERVIN, Judge.

text:
    Russell Leon WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. AI-362.
    District Court of Appeal of Florida, First District.
    Aug. 5, 1982.
    Rehearing Denied Sept. 20, 1982.

      Michael E. Allen, Public Defender and Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.
   ERVIN, Judge.

In affirming the denial of appellant’s motion to suppress evidence of a crime, we follow federal precedent, as we believe that the facts here involved require the application of the same test for the existence of probable cause under the Florida Constitution as is the test under the United States Constitution.

On the afternoon of May 5, 1981, Duval County Sheriff’s Office Detective Harold Lee received an anonymous tip that a tall, dark-skinned black male was selling heroin and/or cocaine on the corner of Fourth and Davis streets in Jacksonville. Lee, a vice squad detective, was well acquainted with this area of town, since he had previously made a number of arrests for drugs in the neighborhood. Dressed in plain clothes and driving an unmarked car, he went to the intersection and placed it under surveillance.

The tipster’s broad, non-descript explanation of the drug pusher’s physical features was instantly satisfied by a number of individuals on the corner, but Lee’s attention was immediately drawn to appellant, who, admittedly, did not fit the description. The appellant was surveilled for ten to fifteen minutes during which time he repeated the following suspicious pantomime no less than four times: Upon an individual’s approach to the appellant, the latter would turn his back from the intersection and toward a building. Turning back around toward the intersection, appellant would engage in some form of hand contact, as if to pass something, although Lee candidly stated that he was unable to ascertain whether anything was passed. After a brief encounter, the approaching individual would then depart.

The detective’s past experience with drug surveillance suggested to him that drug sales were being consummated. This was confirmed in his mind when he observed a known drug addict engage in this process with appellant. Lee decided to contact appellant. He summoned a marked patrol unit for assistance, rode closer to the intersection, and, as he got out of the car, observed appellant walking away. Simultaneously, Lee shouted, ordering appellant to stop, but the latter continued his withdrawal. Lee repeated his demand, identifying' himself as the “police.” When he heard Lee’s voice after the second summons, appellant stopped and turned. Since there were a number of people on the corner, appellant later testified that he was not really sure who was being hailed.

At that point, Detective Lee grabbed at an object concealed in the crotch area of appellant’s trousers, and extracted from it a container similar to the type customarily used for carrying film. Lee opened its top and spied within a number of small wrapped tin foil packets. Based upon his experience in the narcotics field, he was sure that the packets contained heroin. Appellant was immediately arrested. Upon returning to his office, Lee opened the packets and found small quantities of a substance later determined in fact to be heroin.

On appeal, the initial stop and the opening of the film canister are contested. Appellant expressly concedes that the effort at extricating what Detective Lee believed to be a weapon was permissible, assuming the initial stop to be proper. See Bentley v. State, 411 So.2d 1361 (Fla. 5th DCA 1982); Phillips v. State, 360 So.2d 1310 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1372 (Fla.1979).

With regard to the initial stop, we note that there are three-tiers of police-citizen encounters, including: (1) “communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment,” (2) “brief ‘seizures’ that must be supported by reasonable suspicion,” and (3) “full-scale arrests that must be supported by probable cause.” United States v. Berry, 670 F.2d 583, 591 (5th Cir. 1982). Arguably the facts before us suggest that the activity involved in hailing appellant constituted no more than an activity falling within the gamut of the first-tier as noted in Berry. This is an issue we need not confront because in light of the officer’s training and experience, the facts clearly demonstrate at the minimum a reasonable suspicion to stop appellant, which is all that is required. Codie v. State, 406 So.2d 117, 119 (Fla. 2d DCA 1981).

The appellant has suggested that a founded or reasonable suspicion to stop can neither be based on the tipster’s anonymous call to Detective Lee, nor on the street surveillance that Lee conducted. Although the information provided in the tip fails to carry the indicia of reliability or specificity required by State v. Hetland, 366 So.2d 831 (Fla. 2d DCA 1979), affm’d., 387 So.2d 963 (Fla.1980), when it is combined with the observations made by Detective Lee, all the circumstances before him unquestionably furnished him a founded suspicion to stop. Those additional factors include time, location, physical appearance of the suspect, his behavior, and anything incongruous or unusual in the situation suggesting an illegal activity. Cf. Codie, supra, at 117; State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978). More specifically, the consideration of Lee’s heightened awareness stemming from the tip, his experience in drug arrests, the location of the intersection as being in an area wherein he has made a number of previous drug-related arrests, the appellant’s behavior and the unusual nature of Lee’s observations, all demonstrate a reasonable suspicion to stop. While we have no difficulty in affirming the lower court’s determination that the stop was reasonable, the question of whether we should approve the canister search is a far more complicated one to resolve.

Appellant argues that once the object had been removed and determined to be a film canister, it was then obvious to Officer Lee that the canister could not have contained a weapon; hence there was no further right to search. This is so, appellant states, because a full-scale search cannot be conducted incident to a brief seizure or stop without probable cause. Berry, supra, at 591.

Probable cause, of course, includes the knowledge of such facts and circumstances that rise to a level which would warrant an individual of reasonable caution in believing that an offense has been or is being committed. Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). “The facts constituting probable cause need not meet the standard of conclusiveness and probability required of the circumstantial facts upon which a conviction must be based.” Shriner v. State, 386 So.2d 525, 528 (Fla.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 829 (1981). Moreover, probable cause must be determined in light of an officer’s practical experience. State v. Lynch, 378 So.2d 829 (Fla. 2d DCA 1979).

Our research has failed to uncover any decision from an appellate tribunal in Florida that is dispositive of the case at bar as to the presence or lack of probable cause or of an applicable exception to the warrant requirement. However, case law from the United States Court of Appeals for the Eleventh Circuit, within which Florida is located, persuades us that affirmance of the lower court’s denial of appellant’s motion to suppress is required.

In United States v. Elsoffer, 671 F.2d 1294 (11th Cir. 1982), the court was confronted with a case in which Elsoffer was detained by two federal agents after debarking from a plane at the Atlanta airport. Elsoffer had long hair and full beard and was dressed in faded dungarees. The officers observed also a bulge in the shape of a large sized softbound book in the front of his pants from waistline to crotch. After he was stopped, he gave the agents a false name, presented them with an airline ticket with a false name on it, and acted somewhat evasively and nervously. He carried little luggage but claimed to have been on a visit to a friend for three weeks, which the agent found “odd.” Id. at 1295-1296.

The agent asked Elsoffer to consent to a search of his luggage in a nearby lounge which resulted in one of the agents searching Elsoffer and removing the bulge which consisted of a packet of cocaine. The Elsof-fer court did not ground its decision upon the theory of consent, but instead determined that this warrantless search was permissible as a search incident to arrest and that Elsoffer was effectively under arrest at the time that he was taken to the lounge.

In deciding whether there was probable cause to arrest, the court stated:

The magistrate and the government listed several characteristics, most of which were entirely innocuous, that they thought would provide probable cause. We need not consider those factors. In this case the unusual size and shape of the bulge and, given its unusual size and shape, its abnormal position on Elsoffer’s person alone provided not only reasonable suspicion but probable cause for Elsof-fer’s arrest.

Elsoffer, supra, at 1298-1299 (footnotes omitted) (e.s.). Consequently, probable cause was based only on the size, shape, and location of the bulge. Id. at 1299 n. 10. Given the overwhelming similarities of El-soffer to the case at bar and the suspicious activities observed by Lee prior to the initial stop of appellant, we feel that Elsoffer furnishes strong precedent requiring our af-firmance.

Three points are worth noting in this ease. First, it was not the discovery of the heroin after the search of the canister which furnished probable cause to arrest. It was, as pointed out above, rather both the size, shape and position of the “baseball-like” bulge within appellant’s trousers, as well as the officer’s observations of suspicious circumstances leading up to the arrest.

Second, the search in this case took place after probable cause to arrest existed but before a formal arrest occurred. As noted by the U.S. Supreme Court in Rawlings v. Kentucky, 448 U.S. 98, 110-111, 100 S.Ct. 2556, 2564-2565, 65 L.Ed.2d 633 (1980), it is unimportant that a search precede formal arrest, because a search incident to arrest may precede formal arrest so long as: (1) probable cause to arrest existed absent the result of the search, and (2) the arrest followed “on the heels of the challenged search.” Id.; Accord, State v. Emery, 411 So.2d 341 (Fla. 4th DCA 1982); State v. King, 405 So.2d 770, 773 (Fla. 5th DCA 1981).

The third point relates to the fact that the container was small, could not have contained a weapon according to Detective Lee, and could have been held by Lee until securing a warrant. We realize that there is authority to suggest that a warrant to search the canister was required even though the search was incident to a lawful arrest, because the container could have been held until such time as a warrant could have been obtained. This point was raised in Miller v. State, 403 So.2d 1307 (Fla.1981) and State v. Parker, 399 So.2d 24, 29 (Fla. 3d DCA 1981), suggesting that the search incident to arrest exception to the warrant requirement permits a warrantless search only to prevent an assault on the arresting officers or to prevent the destruction of evidence. It has not been contended that either of these situations was present in this case. However, several recent opinions of the United States Supreme Court imply that there is no constitutional impediment to the warrantless search of the film canister.

In New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768, 775 (1981), reh. denied, 453 U.S. 950, 102 S.Ct. 26, 69 L.Ed.2d 1036, the Court discussed the parameters of a search of a container incident to arrest. The search of any closed or open container within reach of an arrestee was permitted, “since the justification for the search is not that the arrestee has no privacy interest in the container but that the lawful custodial arrest justifies the infringement of any privacy interest the ar-restee may have.” Thus, the justification for the search no longer focuses on efforts to prevent an assault or destruction of evidence. Rather, the sole justification is based purely upon the probable cause to arrest.

This view is reinforced by the Belton court’s reference to the earlier case of United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1972), wherein a crumpled cigarette package was seized during a lawful arrest. A search was conducted based upon the need to disarm the arrestee and to discover evidence. Belton, supra, at 453 U.S. at 460-61, 101 S.Ct. at 2864, 69 L.Ed.2d at 775, citing Robinson, supra, at 414 U.S. at 235, 94 S.Ct. at 476. Because we have relied so heavily on federal precedent in an area not specifically addressed by Florida authority, we consider particularly instructive the exercise of examining the relationship between federal and Florida rulings dealing with a citizen’s constitutional rights, especially in reference to searches and seizures.

In essence, federal courts are the final word on federal constitutional law. 36 C.J.S. Federal Courts § 186 (1960). Conversely, it is well established that a state court, when construing a provision of a state constitution, is not bound to follow controlling federal precedent in regard to a parallel provision of the U.S. Constitution. Schreiner v. McKenzie Tank Lines, 408 So.2d 711, 715 (Fla. 1st DCA 1982), certified question docketed, no. 61,697 (Fla., February 11, 1982). By adopting a different interpretation placed upon a parallel constitutional provision, the state is effectuating a standard which affords its citizens greater constitutional protections than the basic or fundamental requirements expressed in the U.S. Constitution. People v. Hoshowski, 108 Mich.App. 321, 310 N.W.2d 228, 230, n. 3 (1981). As expressed by Justice Stanley Mosk of the California Supreme Court:

It is a fiction too long accepted that provisions in state constitutions textually identical to the Bill of Rights were intended to mirror their federal counterparts. The history is otherwise: the Bill of Rights was based upon the corresponding provisions of the first state constitutions, rather than the reverse.

People v. Brisendine, 13 Cal.3d 528, 119 Cal.Rptr. 315, 339, 531 P.2d 1099, 1113 (1975).

This outlook is fully applicable to the stance the United States Supreme Court or any federal court will take in reviewing a case requiring construction and application of a state constitutional provision. Thus, federal courts will always look to a state court’s interpretation of a particular state’s constitution. Reitman v. Mulkey, 387 U.S. 369, 373-374, 87 S.Ct. 1627, 1629-1630, 18 L.Ed.2d 830 (1967). This is true even if there are parallel state and federal constitutional provisions that are similar, but with divergent interpretations. See State v. Schmid, 84 N.J. 535, 423 A.2d 615, 626, n. 8 (1980), cert. dismissed,- U.S. -, 102 S.Ct. 867, 70 L.Ed.2d 855 (1982); 36 C.J.S. Federal Courts, § 171, nn. 21, 24 (1960). Principles of federalism demand federal court deference to a state court’s construction of its own constitution. Hunt v. Roth, 648 F.2d 1148, 1155 (8th Cir. 1981).

Of course, this is not to suggest that federal interpretations of the United States Constitution are not to be considered as highly persuasive and accorded great weight in construing a provision of a state constitution. Schreiner, supra, at 715. In Schreiner, we adhered to federal determinations with regard to a state action requirement in our state Equal Protection Clause. Art. I, § 2, Fla. Const. However, our acceptance of the trail blazed by the federal judiciary in this matter was based on the intent of the framers of our constitution, as noted in the minutes of the Constitutional Revision Commission. Schreiner, supra, at 716.

To be sure, courts are also swayed in construing state constitutional provisions by the similarity between federal and state documents in wording. The Hawaii Supreme Court recently counseled against ignoring federal interpretations in cases where the language of federal and state documents intersect, lest the wisdom of United States Supreme Court interpretations be lost. State v. Miyasaki, 62 Haw. 269, 614 P.2d 915 (1980). This view has not fallen on deaf ears, because our Florida Supreme Court was attracted to the logic of United States Supreme Court precedent in interpreting the constitutional provision dealing with the impairment of contractual obligation provision in the Florida Constitution. The Florida court adopted the United States Supreme Court interpretations of the parallel federal provision, because of the reason and logic supporting those interpretations. See Pomponio v. Claridge of Pompano Condominium, 378 So.2d 774, 779-780 (Fla.1980). Similarly here, comparison of the federal constitutional provision with its Florida counterpart suggests great similarity in the language, although the Florida provision does include an exclusionary provision and specifically subjects the interception of private communications to the warrant requirement.

There can be little doubt that Florida courts have afforded greater protection to Florida’s citizenry with regard to the dissimilar clauses. For example, the probable cause requirement of the Fourth Amendment has been held not to bar war-rantless interception of communications in the home, but the Florida provision has been so interpreted. State v. Sarmiento, 397 So.2d 643 (Fla. 1981). The state exclusionary provision also has been found to apply regardless of whether evidence has been obtained in violation of the Fourth Amendment. Odom v. State, 403 So.2d 936, 940 (Fla.1981), cert, denied, -U.S. -, 102 S.Ct. 1970, 72 L.Ed.2d 440 (1982).

The question confronting us, however, deals with different clauses of Article I, Section 12. Does Florida utilize a more restrictive standard of probable cause than is required under the Fourth Amendment, thereby requiring a stronger or higher degree of evidence to suggest that a crime has been or is being committed? We find that it does not, and that the federal and state probable cause standards are in effect mirror images of one another. Our court in Houston v. State, 113 So.2d 582 (Fla. 1st DCA 1959), examined the provision for searches and seizures in the then applicable 1885 Constitution. Art. I, § 22, Fla. Const. (1885). We found:

The 4th Amendment to the Constitution of the United States, and Section 22 of the Bill of Rights of the Florida Constitution are the same in meaning and identical in wording. For this reason the ruling of the United States Courts on unreasonable searches is generally accepted as authority for a similar ruling in Florida.

Id. at 584-585. Insofar as the wording applicable to the probable cause standard is concerned, we detect no difference between the 1885 and 1968 Florida Constitutions. “It is generally presumed that the construction of an old constitution continues to be applicable to a new one if the language is the same Swartz v. State, 316 So.2d 618, 621 (Fla. 1st DCA 1975), cert. denied, 333 So.2d 465 (Fla.1976). Consequently, precedent of this court suggests that the existing standard for review is no different than the existing standard under the Fourth Amendment.

That we are correct in asserting the continuing vitality of the view taken in Houston is fully supported by opinions from every district court of appeal, save only the fourth, which does not appear to have addressed the issue. See, e.g., State v. Tsa-varis, 382 So.2d 56, 68 (Fla. 2d DCA 1980), affm’d., 394 So.2d 418 (Fla.1981); Mata v. State, 380 So.2d 1157, 1159 (Fla. 3d DCA 1980), rev. denied, 389 So.2d 1112 (Fla.); Ulesky v. State, 379 So.2d 121, 124, n. 1 (Fla. 5th DCA 1979); State v. Hetland, 366 So.2d 831, 836 (Fla. 2d DCA 1979), affm’d., 387 So.2d 963 (Fla.1980). Further, this view was apparently approved by our Supreme Court in Hetland, supra, at 963, wherein the court specifically adopted the district court opinion as its own.

Therefore, it is clear that the interpretations of a portion of a state constitutional section — in this case the probable cause requirements — can be conformed to federal interpretations of the parallel federal constitutional provision. Conversely, a state court may expand the protections of other portions of the same state constitutional provision over and above the rights afforded by the federal document. This is the situation with our state’s constitutional search and seizure provision. In the present case, federal case law from both the United States Supreme Court and the Court of Appeals for the Eleventh Circuit provides irresistible precedent.

Since the Florida probable cause standard is the federal standard, as applied to the facts before us, we follow United States v. Elsoffer, supra, and AFFIRM the denial of appellant’s motion to suppress.

Judgment and sentence AFFIRMED.

ROBERT P. SMITH, Jr., C.J., and SHAW, J., concur.

      . In an authoritative opinion by the U.S. Court of Appeals for the District of Columbia, a court generally regarded as somewhat of a trend-setter, this concept is explained and referred to as a “contact.” Gomez v. Turner, 672 F.2d 134 (D.C. Cir. 1982); see also McClain v. State, 408 So.2d 721, 722 (Fla. 1st DCA 1982) (referring to this concept as an “encounter”); Schlanger v. State, 397 So.2d 1028, 1029 (Fla. 3d DCA 1981), rev. denied, 407 So.2d 1105 (Fla.) (“cooperative encounter”); Login v. State, 394 So.2d 183, 187 (Fla. 3d DCA 1981) (“encounter”); and State v. Rawlings, 391 So.2d 269, 270 (Fla. 4th DCA 1980), rev. denied, 399 So.2d 1145 (Fla.1981) (“temporary encounter”). Whatever the name appended to this genre of police-citizen contact, all of the foregoing cases agree that the Fourth Amendment is inapplicable.

      . Although Berry was filed in March, 1982, the case was an en banc decision of the members of the former U.S. Court of Appeals for the Fifth Circuit. As such the opinion has continuing precedential value in the new Eleventh Circuit. See Schreiner v. McKenzie Tank Lines, 408 So.2d 711, 717, n. 9 (Fla. 1st DCA 1982), certified question docketed, no. 61,697 (Fla., February 11, 1982).

      . That the area was known to the officer as one in which there was a high rate of drug related arrests is one factor properly considered in determining a reasonable suspicion. Cf. Wigfall v. State, 323 So.2d 587, 589-590 (Fla. 3d DCA 1975).

      . The Miller and Parker courts relied on Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), as authority for this view.

      . Pomponio v. Claridge of Pompano Condominium, 378 So.2d 774, 779 (Fla. 1980); Miami Home Milk Producers Ass’n. v. Milk Control Board, 124 Fla. 797, 169 So. 541, 544 (1936); cf. Cantrell v. State, 405 So.2d 986, 990 (Fla. 1st DCA 1981); Stipp v. State, 371 So.2d 712, 714 (Fla. 4th DCA 1979).

      . The Fourth Amendment to the U.S. Constitution states:
      The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

      . Article I, Section 12 of the 1968 Florida Constitution states:
      The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall issue except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of the evidence to be obtained. Articles or information obtained in violation of this right shall not be deemed admissible.

      . Additionally, the Florida Constitution requires that a warrant shall not be issued unless “supported by affidavit,” whereas the U.S. Constitution merely requires that the warrant shall be “supported by oath or affirmation.” This differentiation in terminology has been interpreted to mean that warrant determinations may only be reached by review of the four corners of an affidavit. Swartz v. State, 316 So.2d 618 (Fla. 1st DCA 1975), cert. denied, 333 So.2d 465 (Fla. 1976).

      . The scope of the Florida exclusionary clause seems to be somewhat unclear. However, recent case law suggests that the scope of the fourth amendment exclusionary rule and the constitutionally expressed provision in Florida are not coterminous. In Odom, supra, at 940, evidence was suppressed based on the Florida rule “regardless of the scope of the Fourth Amendment exclusionary rule.”
      There is federal authority recognizing a “good faith” exception to the exclusionary rule, which would represent a partial “retreat” from the rule. At least one federal court has been inclined to engage in this retreat, United States v. Williams, 622 F.2d 830 (5th Cir. 1980) (en banc), cert. denied, 449 U.S. 1127, 101 S.Ct. 946, 67 L.Ed.2d 114 (1981). In Taylor v. Alabama, - U.S. -, -, 102 S.Ct. 2664, 2669, 73 L.Ed.2d 314 (1982), however, the U.S. Supreme Court refused, apparently based on the facts, to recognize the type of good faith exception envisioned by Williams. Despite language to the contrary in Taylor, supra, - U.S. at -, 102 S.Ct. at 2669, it is clear that the U.S. Supreme Court has accepted at least one form of the good faith exception. See Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). Further, the court may have another opportunity to confront the good faith exception issue. See California v. Riegler, 50 U.S.L.W. 3860 & 3952 (U.S. pet. for cert. filed April 13, 1982) (No. 81 — 1916).
      Regardless of the state of the federal judiciary’s acceptance or rejection of a good faith exception to the exclusionary rule, Florida currently does not recognize it. Lovett v. State, 403 So.2d 1079 (Fla. 1st DCA 1981); Walden v. State, 397 So.2d 368 (Fla. 1st DCA 1981). See Ball, Criminal Law — Good Faith and the Fourth Amendment: The "Reasonable” Exception To The Exclusionary Rule, 69 J. Crim. L. & Criminology 635 (1978); Note, Criminal Law: Exclusionary Rule, United States v. Williams, 5 Nova L.J. 131 (1980).
      We note that the Florida position regarding a good faith exception may be subject to change, because the legislature has passed an amendment to the state constitutional search and seizure provision subject to ratification by the electorate in November, 1982. See 8th Spec. Sess., Journal of the House of Representatives 4-5 (1982); 8th Spec. Sess., Journal of the Senate 21 (1982). The proposed amended section states:
      Searches and seizures. — The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures; and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.

      Art. I, § 12, Fla.Const.


author: COBB, Judge.

text:
    James Lamont TAYLOR, Petitioner, v. Louie L. WAINWRIGHT, etc., et al., Respondent.
    No. 82-866.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 1982.
    Rehearing Denied Sept. 2, 1982.
    James Lamont Taylor, pro ses

      Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Judge.

The petitioner, James Lamont Taylor, has filed an original petition for habeas corpus asserting that he is entitled to immediate release from the custody of respondent, Louie L. Wainwright, Secretary of the Department of Corrections of Florida. He attributes his illegal detention to an erroneous computation by the Florida Parole and Probation Commission of his presumptive release date.

According to the sworn petition, Taylor was charged with two counts of sexual battery, both counts under section 794.011(5), Florida Statutes, and one count of kidnapping under section 787.01. He pleaded no contendere to one count of sexual battery and was sentenced to prison for a term of fifteen years on June 5, 1979.

On April 22, 1980, the petitioner interviewed with a parole examiner, a Mr. Paul Rigsby, for the purpose of determining a presumptive parole release date. Rigsby determined the matrix time range by locating the offense severity factor and the salient factor on the matrix. Petitioner’s salient factor was “one,” and Rigsby set the offense of conviction at a severity rating of “Greatest Most Serious — II.” According to the guidelines in effect in April, 1980, given the above severity rating and salient factor, the matrix time range was 83 to 107 months. Mr. Rigsby arrived at this matrix time range and added 13 months for an aggravating circumstance in petitioner’s instance.

On May 21, 1980, the Parole and Probation Commission agreed with Mr. Rigsby’s recommendation and set petitioner’s presumptive parole release date as May 3,1988. Later Mr. Rigsby requested petitioner’s presumptive parole release date be reduced by 24 months, but the Commission held that the date would remain at May 3, 1988. The Commission denied petitioner’s request for review of his presumptive parole release date as untimely.

In his petition, Taylor asserts that Rigsby erroneously placed the offense of conviction in the “Greatest Most Serious II” category. Petitioner was sentenced to serve fifteen years for the offense of sexual battery, which in the information was sexual battery charged under section 794.011(5), sexual battery with force not likely to cause personal injury. The parole guidelines in effect in April, 1980, provided an offense severity rating for this offense as “Very High.” The matrix time range for this rating, coupled with petitioner’s salient factor of “one,” was 18 to 24 months. This range, plus the 13 months for the aggravating circumstance, establishes a total time of 38 months. The petitioner has already served over 49 months, well past the correct presumptive parole release date.

The respondents herein, Louie L. Wainwright as Secretary of the Department of Corrections and Jim Smith as Attorney General, in response to the petition have filed an unsworn “Motion to Dismiss or, Alternatively, to Substitute Proper Party” contending:

(1) That Wainwright and Smith, as nonvoting members of the Florida Parole and Probation Commission, are not proper parties of this action;

(2) That petitioner has failed to exhaust his administrative remedies;

(3) That petitioner “has not shown by affidavit or evidence the probable cause to believe that he is detained without lawful authority necessary for issuance of the writ sought herein”; and

(4) That the proper party-respondent in this case would be the Florida Parole and Probation Commission rather than Smith and Wainwright.

We first address items (1) and (4) raised by respondents relating to the proper party or parties to this cause. The Third District Court of Appeal has recognized habeas corpus as a proper method of challenging the validity of a presumptive parole release date where, as in the instant ease, the prisoner claims his entitlement to immediate release. Jenrette v. Wainwright, 410 So.2d 575 (Fla. 3d DCA 1982); Smith v. Crockett, 383 So.2d 1166 (Fla. 3d DCA 1980); cf. Lyden v. Wainwright, 307 So.2d 258 (Fla. 2d DCA 1974).

In Jenrette, which was a habeas corpus proceeding, the issue essentially was the same as in the instant case, and only Wainwright was named as respondent. The latter moved to dismiss on the ground that Jenrette had failed to exhaust his administrative remedies. This was denied. An oral argument was held before the appellate court on the petition and response, and the court found that the actual allegations in Jenrette’s affidavit supporting his petition had to be taken as true because Wainwright had failed to controvert them. The court noted that the Attorney General, who was representing Wainwright in that case, as in the instant case, has ready access to any records which would have refuted Jen-rette’s affidavit, which dealt with the method by which the Florida Parole and Probation Commission had computed his presumptive parole release date (just as does Taylor’s sworn petition in the instant case). See, e.g., State v. Coney, 294 So.2d 82 (Fla. 1974). The Jenrette court, in this regard, stated that it was dilatory for the respondent Wainwright to merely assert that Jen-rette’s affidavit was insufficient. It is clear that the court considered that the Secretary of the Department of Corrections, represented by the Attorney General, had full access to any Commission records and Commission witnesses necessary to controvert, and adequately defend against, Jenrette’s petition for writ of habeas corpus. Moreover, it is fundamental that the person to be named as a respondent in a habeas corpus action is the person holding custody and who is in a position to produce the petitioner physically. See 28 Fla. Jur. 2d, Habeas Corpus, § 96 and cites cited thereunder.

In Hardy v. Greadington, 405 So.2d 768 (Fla. 5th DCA 1981) this court reviewed on appeal a trial court’s denial of a petition for habeas corpus which contended that the Parole and Probation Commission had improperly computed the petitioner’s presumptive parole release date, and affirmed on the merits. In that case we noted a similar challenge in Smith v. Crockett, supra, and stated:

[I]t would appear that the more appropriate remedy is mandamus, when as here, it is asserted that the public official is not following the law or established guidelines.

Hardy also observed that, whereas the granting or withholding of parole is discretionary, the Parole Commission cannot deny parole upon illegal grounds or improper consideration, else it is answerable in mandamus, citing the Florida Supreme Court ease of Moore v. Florida Parole and Probation Commission, 289 So.2d 719, 720 (Fla. 1974) for this proposition. Nevertheless, the Hardy opinion reached the merits of the actions of the Commission and determined the appeal adversely to the argument of the appellant; it did not dismiss the appeal nor did it affirm the trial court on the rationale that the petitioner had utilized the incorrect procedural device below.

In Moore the petitioner filed an original petition for writ of habeas corpus with the Florida Supreme Court seeking review of the Parole Commission’s denial of his parole, alleging it was based upon improper consideration. The court treated the petition as one for mandamus. The respondent Commission moved to quash the petition on the ground that the discretionary aspect of parole placed it beyond the bounds of mandamus review, and that motion was denied. The court then held that while there was no absolute right to parole, there is a right to a proper consideration for parole free from the taint of illegal or improper grounds. “Petitioner is entitled to have the question of his eligibility for parole determined upon evidence which passes constitutional muster.” Moore, 289 So.2d at 720. We note that a petitioner is also entitled to have that question determined in conformity with statutory mandates.

The Supreme Court in Moore directed the Commission, the only named respondent in that case, to file its response. This was done, and the Commission made a satisfactory showing that it had not in fact considered improper matters in arriving at its decision and the alternative writ was discharged.

In the same year that Moore was decided, the Second District Court of Appeal considered an original petition for writ of mandamus which named only Louie L. Wainwright, Director, Division of Corrections, as respondent. Lyden v. Wainwright, supra. The court observed that in other cases it had transferred such petitions to the Circuit Court of Leon County where Wainwright’s office is located on the basis that it is more orderly procedure to have such matters brought initially in the circuit court of the appropriate county. No mention is made of the absence of the Parole Commission as a party to the mandamus proceeding, despite the fact that the issue was the computation of time that petitioner was required to serve. Observing that under the allegations of the petition Lyden possibly was entitled to immediate release, the court retained jurisdiction over the petition, treating it alternatively as a petition for habeas corpus, “which is plainly within our jurisdiction.” Lyden at 259, citing Art. V, § 2, Fla. Const.

Since the Moore and Lyden decisions, the Florida Legislature has enacted the “Objective Parole Guidelines Act of 1978” with an effective date of July 1 of that year. See Ch. 947, Fla. Stat. (1981). It was in this context that Jenrette was decided, and it is on this basis that we must consider the instant petition of Taylor and response of his custodian.

We hold, therefore, that the proper party respondent in this action for habe-as corpus relief is Louie Wainwright, as Secretary of the Department of Corrections, not the Parole Commission as would be the case if the petition had been styled or treated as one seeking a writ of mandamus — in which event, the proper respondent would be the Commission and we would transfer this action to Leon County. See Lyden, supra. The naming of the Attorney General in the petition as a party does not alter the issues presented; we merely strike him as an unnecessary party in this cause.

In regard to the second issue raised by the response (Wainwright’s motion to dismiss is the only response to this Court’s order to show cause), we acknowledge that exhaustion of administrative remedies is a prerequisite to a petition for writ of habeas corpus. Section 120.68(1) of the Administrative Procedure Act states: “A party who is adversely affected by final agency action is entitled to judicial review.” The Commission’s establishment of a presumptive parole release date is a final agency action. Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981). In the petitioner’s instance, the Commission has established his presumptive parole release date. In fact, petitioner requested the Commission to review his date, which request was denied. Therefore, petitioner has exhausted his administrative remedies in this case.

The third issue raised by the respondent is refuted by the jurat at the conclusion of Taylor’s petition. The factual allegations of that petition, therefore, are accepted as true. See § 79.01, Fla. Stat. (1981); Velluei v. Cochran, 138 So.2d 510 (Fla. 1962); and Coleman v. State Ex Rel. Race, 118 Fla. 201, 159 So. 504 (1935).

Accordingly, we grant the writ and order the respondent, Louie Wainwright, as Secretary of the Department of Corrections, to forthwith release the petitioner, James Lamont Taylor, from custody subject to the standard provisions of parole in such cases.

PETITION GRANTED.

DAUKSCH and SHARP, JJ., concur.

      .Presumptive parole release date- — -In April, 1980, Chapter 23 19 of the Florida Administrative Code controlled the determination of the presumptive parole release date. First, a “salient factor score” was computed under Rule 23 19.04; this score was based upon numerous values which were assigned to various categories relevant to the inmate (j.e., prior parole revocations, prior convictions, length of time previously served in prison, etc.). Second, the offense of conviction is located on a scale established by the commission, the offense ranging from “Low” (least serious) to “Greatest” (most serious). Specific ranges of months to be served for each crime were established in the matrix, with the number of months included in each range dependent upon the salient factor score. Third, a specific term within the appropriate range was fixed. This term could be aggravated beyond the maximum number of months or rftitigated below the minimum number of months based on appropriate factors. Rule 19.03, Florida Administrative Code.

      . Only two offenses were within the category of “Greatest Most Serious — II”: Murder II and Sexual Battery likely to cause serious harm. Sexual battery was separated into offense severity categories according to the seriousness of the sexual battery as determined under section 794.011, the sexual battery statute, i.e., sexual battery where victim under eleven years— “Greatest Most Serious IV;” sexual battery with use of force likely to cause serious bodily harm — “Greatest Most Serious — II;” sexual battery with use of force not likely to cause serious bodily injury victim over eleven years— “Very High.”

      . The aggravating circumstance, that of grand theft, was listed on petitioner’s objective parole worksheet.