author: ALDERMAN, Justice. SUNDBERG, Chief Justice, ADKINS, Justice,

text:
    Sheila Mathews WELLS, Appellant, v. STATE of Florida, Appellee.
    No. 57058.
    Supreme Court of Florida.
    July 30, 1981.

      Gary R. Dunham, Asst. Public Defender, Starke, for appellant.
    Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   ALDERMAN, Justice.

Sheila Wells challenges her convictions for unlawful possession of a controlled substance, possession of narcotics paraphernalia, and introducing contraband into a state prison, on the basis that the trial court erred in denying her motion to suppress contraband seized from her while a visitor at the state prison Lake Butler Reception and Medical Center and on the basis that the trial court erred in denying her motion to dismiss the charge that she violated section 944.47, Florida Statutes (Supp.1978), by introducing contraband into a state prison. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution (1972), because the trial court upheld the constitutional validity of section 944.47. We hold that the trial court correctly denied the motion to suppress since the search and seizure was not illegal, and we hold that section 944.47 is not unconstitutionally vague as applied to Wells and is not an unlawful delegation of legislative powers and that she has no standing to challenge this statute as overbroad.

Several days prior to Sheila Wells’ arrest, a correctional officer and investigator, Sergeant Deckle, employed at the state prison Lake Butler Reception and Medical Center, received confidential information from a reliable source that on October 1, 1978, Wells would bring marijuana into the facility hidden inside her vagina. Sergeant Deckle planned with a female correctional officer, Virginia Forsythe, to allow Wells to enter the prison and only stop her after she exited from the visitor’s restroom where, they anticipated, she would remove the contraband to facilitate passage to an inmate.

Wells entered the state prison on October 1, 1978, and after about one hour in the visitor’s area, she entered the visitor’s restroom. When she emerged, Officer For-sythe asked Wells to accompany her to an office. Forsythe instructed Wells to remove her clothing, and she complied. A pat-down search of her upper torso revealed vegetable matter appearing to be marijuana enclosed in a plastic baggie inside a prophylactic. After she dressed, she was arrested by a deputy sheriff. Her purse was searched, and hemostats and “roach clips” were found. With Wells’ consent, her car was also searched, and two more “roach clips” were found.

Although conceding that the prison authorities had probable cause to believe that she would attempt to smuggle contraband into the prison facilities, Wells argues that this warrantless search violated her constitutional right to be free from unreasonable searches and seizures under the fourth amendment to the constitution of the United States and article I, section 12 of the Florida Constitution, since no exigent circumstances were present.

As a predicate to her claim that her fourth amendment rights were violated, Wells must first establish that she had a reasonable expectation of privacy to be free from the particular intrusion involved here. Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d at 220 (1979); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Shapiro v. State, 390 So.2d 344 (Fla.), cert. denied, - U.S. -, 101 S.Ct. 1519, 67 L.Ed.2d 818 (1980). In determining whether she demonstrated a reasonable expectation of privacy, we are concerned not merely with what her own personal expectation of privacy was, but, more importantly, we are concerned with what expectations are constitutionally justifiable so as to implicate the fourth amendment. United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971). To make this determination, we must decide whether her individual subjective expectation is one that society is prepared to recognize as reasonable under the circumstances. Smith v. Maryland; Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Shapiro v. State. Although the fourth amendment protects people and not places, reference to the place where the right is being asserted is essential to the application of the objective standard for determining reasonableness of the expectation of privacy. Katz v. United States, 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, J., concurring).

It is doubtful that most visitors to a prison have any subjective expectation that they will not be searched for weapons or other contraband. It should be obvious to any reasonable person that for the protection of both the guards and the inmates, as well as any visitors, prison personnel must do whatever is necessary to prevent the introduction of contraband into the prison. As acknowledged by the Supreme Court of the United States in Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979), “A detention facility is a unique place fraught with serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence.”

Even if Wells did have a subjective expectation of privacy, her expectation, to be free from the particular search involved here, is not one that society is prepared to recognize as reasonable. Discussing privacy expectations in a prison environment, the Supreme Court of the United States, in Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962), said:

[T]o say that a public jail is the equivalent of a man’s “house” or that it is a place where he can claim constitutional immunity from search or seizure of his person, his papers, or his effects, is at best a novel argument. To be sure, the Court has been far from niggardly in construing the physical scope of Fourth Amendment protection. A business office is a protected area, and so may be a store. A hotel room, in the eyes of the Fourth Amendment, may become a person’s “house,” and so, of course, may an apartment. An automobile may not be unreasonably searched. Neither may an occupied taxicab. Yet, without attempting either to define or to predict the ultimate scope of Fourth Amendment protection, it is obvious that a jail shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room. In prison, official surveillance has traditionally been the order of the day.

370 U.S. at 143, 82 S.Ct. at 1220-1221 (footnotes omitted). See United States v. Kelley, 393 F.Supp. 755 (W.D.Okl.1975).

Wells established no reasonable expectation of privacy from the particular search of her person which was conducted, in this case, for the limited purpose of discovering whether she was carrying contraband into the prison. Therefore, the fourth amendment was not implicated, and neither probable cause nor a warrant was required as a prerequisite to the search. See Shapiro v. State. Furthermore, we find that the manner of conducting the search was not patently offensive to human dignity so as to shock the conscience or offend even hardened sensibilities and thus partook of none of the abusive characteristics held to violate the due process clause. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Schmerber v. California, 384 U.S. 757, 85 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1951).

Therefore, we hold that the trial court’s denial of her motion to suppress was proper.

We next proceed to Wells’ challenges to the constitutionality of section 944.47 on the grounds that it is vague, overbroad, and an unlawful delegation of legislative authority. This statute provides in pertinent part:

Introduction or removal of certain articles unlawful; penalty.—
(1)(a) It is unlawful to introduce into or upon the grounds of any correctional or penal institution under the supervision or control of the Department of Offender Rehabilitation, or to take or attempt to take or send therefrom, any of the following articles which are hereby declared to be contraband for the purposes of this section, to wit:
4. Any narcotic or hypnotic or excita-tive drug or any drug of whatever kind or nature including, but not limited to, nasal inhalators of any variety, sleeping pills, barbiturates of any variety, and any controlled substance as defined in s. 893.-02(3);
except through regular channels as authorized by the officer in charge of each correctional or penal institution.
(2) Whoever violates any provision of this section shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Wells does not have standing to challenge as vague subsections of section 944.47 under which she was not charged since she is unaffected by these subsections. State v. Champe, 373 So.2d 874 (Fla.1978). Furthermore, she has no standing to challenge section 944.47 as overbroad. Clark v. State, 395 So.2d 525 (Fla.1981). Her conduct was clearly illegal and proscribed by section 944.47 in understandable terms, and she has made no assertion that the statute inhibits activities protected by the first amendment.

We have previously held that section 944.47 is not an unlawful delegation of legislative powers. In Clark v. State, we said:

The “reasonableness” of delegation must be determined within the practical context of the problem. State v. Griffin, 239 So.2d 577 (Fla.1970). In Griffin this Court recognized that where direct legislative supervision is impractical, detailed legislation may also be impractical. A prison, unlike most regulated agencies and departments, cannot be run by procedures carefully detailed by “outsiders.”
The realities of running a penal institution are complex and difficult, so wide-ranging deference is to be accorded the decisions of prison administrators. Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, [97 S.Ct. 2532, 53 L.Ed.2d 629] (1977)....
Of course, the legislature must establish guidelines to prevent abuse of administrative power. State v. Cumming, 365 So.2d 153 (Fla.1978); Conner v. Joe Hatton, Inc., 216 So.2d 209 (Fla.1965); State ex rel. Davis v. Fowler, 94 Fla. 752, 114 So. 435 (1927). The legislature mandated that the “officer in charge of such institution” is the person qualified to designate the “regular channels” of entry to the prison. The prison administrator can allow many things to pass in through those channels. However, items of contraband were outlined by the legislature. The prison administrator must keep out items within that outline which, based on his experience in the prison system, are potentially harmful.

395 So.2d at 527-28.

Finally, we reject Wells’ contention that section 944.47 is unconstitutionally vague as applied to her. This statute conveys a sufficiently definite warning of the proscribed conduct when measured by common understanding and practice. Schultz v. State, 361 So.2d 416 (Fla.1978). A statute, to be sufficiently certain so as to accord with constitutional standards of due process, need not furnish detailed plans and specifications of the acts or conduct prohibited since impossible standards are not required. Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So.2d 881 (Fla. 1972).

Wells’ concerted effort at concealing the marijuana belies any assertion that she did not know that her conduct of introducing the marijuana into the prison was illegal. To perceive that smuggling drugs into a prison is prohibited activity requires only a minimum of common understanding. As applied to Wells’ conduct, section 944.47 gave fair notice that her particular behavior was illegal.

Accordingly, having found that the trial court properly denied the motions to suppress and to dismiss, we affirm the convictions.

It is so ordered.

BOYD, OVERTON and McDONALD, JJ., concur.

SUNDBERG, C. J., concurs specially with an opinion with which ENGLAND, J., concurs.

ADKINS, J., dissents with an opinion.

SUNDBERG, Chief Justice,

concurring specially.

Although I agree that under these circumstances the search of Wells should be upheld, I reach that conclusion by a significantly different road and, therefore, must voice what I feel is the correct means to the same end. I concur with the majority’s disposition of the other constitutional challenges.

The majority adopts the minority and waning position in this country which holds that there are simply no fourth amendment rights whatsoever in a prison environment. See United States v. Hitchcock, 467 F.2d 1107 (9th Cir. 1972), cert. denied, 410 U.S. 916, 93 S.Ct. 973, 35 L.Ed.2d 279 (1973) (no reasonable expectation of privacy in jail cell); United States v. Myers, 431 F.Supp. 64 (W.D.Okla.1976) (prison not a protected area under fourth amendment); Hoitt v. Vitek, 361 F.Supp. 1238 (D.N.H.1973), aff’d, 495 F.2d 219 (1st Cir. 1974) (cell-block not constitutionally protected); South Carolina v. Colby, 263 S.C. 468, 210 S.E.2d 914 (1975) (visitor to prison compound has no expectation of privacy). A growing number of courts refuse to find a complete lack of fourth amendment protection in the prison situation. Notably, the United States Fifth Circuit Court of Appeals has found that the potential for abusive searches of prisoners demands at least some fourth amendment protection. United States v. Lilly, 576 F.2d 1240 (5th Cir. 1978). That court found the fourth amendment mandated that searches and seizures conducted on prisoners must be “reasonable under all the facts and circumstances in which they are performed.” ' Id. at 1244. The seventh circuit has held that entry into a controlled environment does not lead to total loss of privacy, but that some residuum meriting fourth amendment protection survives even in this environment. Bonner v. Coughlin, 517 F.2d 1311, 1316 (7th Cir. 1975), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978) (Stevens, J.). Cases generally following this view are legion. See, e. g., United States v. Stumes, 549 F.2d 831 (8th Cir. 1977); United States v. Savage, 482 F.2d 1371 (9th Cir. 1973), cert. denied, 415 U.S. 932, 94 S.Ct. 1446, 39 L.Ed.2d 491 (1974); Daughtery v. Harris, 476 F.2d 292 (10th Cir.), cert. denied, 414 U.S. 872, 94 S.Ct. 112, 38 L.Ed.2d 91 (1973); Hodges v. Klein, 412 F.Supp. 896 (D.N.J.1976); Hudson v. Colorado, 196 Colo. 211, 585 P.2d 580 (1978); Michigan v. Trudeau, 385 Mich. 276, 187 N.W.2d 890 (1971), cert. denied, 405 U.S. 965, 92 S.Ct. 1169, 31 L.Ed.2d 240 (1972). I adopt the growing and, I believe, enlightened view that when an individual crosses into a prison environment he does not enter a twilight zone devoid of every constitutional protection afforded to all persons, and that the inhabitants of this environment are indeed still to be treated as “persons.”

Although the majority quotes the familiar passage from Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962), to support its position that the fourth amendment is inapplicable in prisons, this language is mere dicta and the issue before this Court has never been decided by the United States Supreme Court. But the Supreme Court has made clear in the “iron curtain” passage from Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), that constitutional rights flourish even within a prison’s four gray walls:

If the position implies that prisoners in state institutions are wholly without the protections of the Constitution and the Due Process Clause, it is plainly untenable. Lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen, a “retraction justified by the considerations underlying our penal system.” But though his rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country.

Id. at 555-56, 94 S.Ct. at 2974-2975 (citation omitted). Prison security is invoked by the majority and Lanza as justifying abrogation of the normal constitutional safeguards, yet “the shibboleth of jail security is not a passport to wholesale abuse of . .. constitutional rights.” The majority also posits, based on Lanza, that a prison visitor can have no reasonable expectation of privacy since “official surveillance has traditionally been the order of the day.” But such reasoning is circular, for this would allow the government to negate fourth amendment protection by merely announcing and instituting surveillance in any particular situation. I cannot accept that fourth amendment rights are so evanescent.

Notably, the majority is uneasy in stripping away all limitations on prison searches and falls back on a due process limitation established in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), which declared that a forced stomach pumping to obtain evidence violated due process as being “too close to the rack and the screw.” Id. at 172, 72 S.Ct. at 209-210. But the privacy rights of Rochin could not be protected under the more suitable fourth amendment since the case involved a state prosecution and was prior to Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), which made the practical protections of the fourth amendment applicable to the states. The protection in Rochin has become superseded by the fourth amendment and has ceased to develop. Furthermore, the scope of due process protection from unreasonable search is ill-developed. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), may overrule Rochin since Schmerber upheld an in-trusión into the defendant’s body to obtain evidence. Both cases are concerned with intrusions into the body, a situation not involved in the present case, and are of questionable utility. Another case cited for reliance on due process protection, United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), was severely undermined by United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). All cases the majority cites involve post-arrest searches, again not the case we face. Ironically, the Supreme Court in Robinson found the fourth amendment applicable to a search incident to arrest and held the particular search reasonable. The Court in Schmerber also applied the reasonableness clause of the fourth amendment to a post arrest search. 384 U.S. at 771, 86 S.Ct. at 1836. What emerges outside the fourth amendment is a very pale Rochin protection, which seems only to prevent a few searches when the court’s “sense of justice” is shocked, a protection which is certainly not vital and perhaps not valid.

The differences between fourth amendment protections from unreasonable searches and those afforded by due process of law are critical:

Thus, we must apply the test of reasonableness to the conduct of the officers in the case at bar. This is a stricter test tha[n] that applied to state proceedings under the Due Process Clause of the Fourteenth Amendment in Rochin and Breithaupt. The test there is whether the alleged activity of law enforcement officers in obtaining the questioned evidence fell short of civilized standards of decency and fair play. There may be, we conceive, conduct which, while unreasonable, is not so unconscionable that it “shocks the conscience” or “offend[s] a sense of justice.” Rochin, 342 U.S. at page 172, 72 S.Ct. at page 208. On the other hand, if conduct is reasonable, it must perforce satisfy Due Process requirements.

Blackford v. United States, 247 F.2d 745, 750 (9th Cir. 1957), cert. denied, 356 U.S. 914, 78 S.Ct. 672, 2 L.Ed.2d 586 (1958) (footnotes omitted). This passage points out that “reasonableness” is a term of fourth amendment art, and not one of due process methodology. Due process protections in this context are the minimum standards that apply for humane treatment of animals. In contradistinction, fourth amendment protections are minimum standards that define civilized treatment of other human beings. To deny persons in a prison environment all fourth amendment rights is to deny them the quality of humanity. Such a denial continues a medieval approach towards penal institutions:

Our prisons are institutions which strive to dehumanize. ... We expose the inmate to indignities and invasions of privacy which, if they occurred in the “outside” world, would bring immediate howls of protest. Of course, there are legitimate security needs of the prisons, and these must be considered when weighing the prisoner’s rights of integrity, autonomy, privacy. But our prisons are not meant for security: their chief purpose is, and should be, rehabilitation. It is impossible to rehabilitate a man when everything around him tells him, repeatedly, that he is not a man, that he has no humanity.

To disallow any privacy under fourth amendment protection is to accept and perpetuate that the prison environment is and will be a place of inhumans, and to guarantee that those exposed for a sufficient length of time will have no hope of ever regaining humanity.

Even though I would apply the reasonableness standard of the fourth amendment for the reasons I have outlined, I nevertheless would uphold the search of Wells. The government’s special interest in maintaining order and security in prison must be balanced against the individual’s right to personal security. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). The right of Wells to be free from a search even when probable cause existed cannot outweigh the public interest in preventing introduction of drugs into a prison. The pat-down search of Wells under the circumstances of this case could in no way be called unreasonable.

I thus reach the same conclusion as the majority, and uphold the search. But I would analyze the problem in terms of fourth amendment reasonableness, and, as often is the case, the manner in reaching an end can be more critical than the end itself.

ENGLAND, J., concurs.

ADKINS, Justice,

dissenting.

I dissent. Facts stipulated to in the motion to suppress show that the warrantless search of appellant was based on a tip from a reliable informant. Appellant agrees that probable cause to search attached at that time. However, she maintains that probable cause is not sufficient without exigent circumstances to call for a warrantless search, so the search did not meet an exception to the warrant requirement. The burden was on the -state to show that the search met an exception. The state urges that the requisite exigent circumstances are supplied by the prison environment and resultant decreased expectation of privacy. Under the particular facts that were before the trial court in appellant’s motion, circumstances did not require a warrantless search even inside the prison.

A warrantless search is per se unreasonable unless the search falls within certain well-defined exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Martin v. State, 360 So.2d 396 (Fla.1978). An emergency situation may require a warrantless search if probable cause and exigent circumstances exist; both parties agree that probable cause existed in this case. Appellee claims that probable cause is enough where the search was in a prison. Florida courts hold that search and surveillance necessary for prison security must qualify a prisoner’s expectation of privacy. Marra v. State, 341 So.2d 284 (Fla. 1st DCA 1977). Prisoners can be subjected to very invasive searches if the search is “reasonable”, even absent probable cause, without violating their Fourth Amendment rights. United States v. Lilly, 576 F.2d 1240 (5th Cir. 1978) (body cavity search allowed due to exigencies inherent in prison environment). Officials searching for contraband in some penal institutions may conduct pat-down searches of guards. United States v. Sihler, 562 F.2d 349 (5th Cir. 1977). Officials may also search other prison employees. Shaw v. Hutto, (E.D.Va.1977), 22 Cr.L. 2021. In Davis v. Reynolds, 319 F.Supp. 20 (N.D.Fla. 1970), where wildlife officers conducted a warrantless search of vehicle in a game preserve, the district court held broadly that a warrantless search is proper in order to maintain security or to prevent entry of forbidden articles into a designated area. However, no seizure was involved in Davis.

Section 944.47, Florida Statutes (1978), allows prison administrators wide discretion to detect contraband and to keep it out of the institutions. Here, however, officials knew beforehand that appellant would attempt to introduce contraband into the prison. Officers could have taken action before appellant entered because the informant’s tip revealed that she was already committing a felony by possessing marijuana in violation of section 893.023, Florida Statutes (1977). In the alternative, officials could have kept the contraband out of the institution by merely refusing to admit appellant.

Since prison officials received the tip from a proven reliable source several days before appellant was to enter the prison, they should have obtained a warrant to search her. Fourth Amendment rights must be protected unless there is a compelling justification for infringing on those rights. Although appellant entered a prison, the time span between when probable cause to search arose and when appellant was finally searched was too wide to constitute exigent circumstances under Florida law. In Hornblower v. State, this Court held that “[l]aw enforcement officers may not sit and wait as here (when they could be seeking a warrant), then utilize their self-imposed delay to create exigent circumstances.” 351 So.2d 716, 719 (Fla.1977) (Police knew for forty-five minutes that they were going back to defendant’s house to search people leaving for contraband.) Similarly, in Parsons v. State, 334 So.2d 308 (Fla. 1st DCA 1976), aff’d 351 So.2d 723 (1977), the police officer waited one and one-half hours between first suspecting the defendant was smoking marijuana and then making a warrantless arrest. This Court affirmed the decision that the interval between suspicion and arrest was too long to justify not obtaining a warrant.

In this case, prison officers had “several days” to obtain a warrant, but there is no evidence that they even considered getting one. Regardless, they planned exactly how and where they would stop appellant and search her. They knew days ahead of time what she would bring in, where she would hide it, and when she would bring it into the prison. These circumstances fall far short of the required exigency, within or without a prison.

The initial search of this appellant did not come within the consent exception to the warrant rule. The state claimed that the Visiting Park Regulations, State Exhibit 1, were given to every visitor and described which items cannot be brought into a prison. The Regulations, relating more to conduct, describe only postage stamps, money in excess of $15.00, and cigarettes as items which cannot be received from visitors. Confiscation of items is the only penalty noted. The rules of the Department of Offender Rehabilitation pertaining to visitors warn that “they may be required to submit to a search of their persons and possessions before being admitted.” Department of Offender Rehabilitation Rules, S. 33.508(1) (emphasis supplied). Appellant was not searched before she was admitted; indeed, it was an hour after she entered the prison before Officer Forsythe approached her. I cannot ignore the last three words of the rule.

The subsequent searches of appellant’s purse and her car are also suspect in light of the initial illegal search. When an initial search is illegal, further searches evolving from that initial search are also illegal. Norman v. State. The state must show an unequivocal break in the chain of illegality to dissipate the taint. Bailey v. State, 319 So.2d 22 at 28 (Fla.1975).

In my opinion the trial court erred in denying appellant’s motion to suppress evidence.

      . Appellant entered a plea of nolo contendere, reserving the right to appeal the denial of her motion to suppress evidence and her motion to dismiss the charge of introducing contraband.

      . This environment includes visitors, guards, pretrial detainees, and inmates. Though the majority cites cases which include the first three groups, it is careful in its pretense that the prison environment does not implicate the very core of a prison, the inmates. But its decision necessarily involves the rights of all those functioning within prisons. Thus, for purposes of my analysis, all inhabitants of the prison environment will be treated similarly since the cases which address the rights of groups such as prison guards, visitors, or inmates unanimously refer to the diminished expectation of privacy afforded in the prison environment to all, and do not distinguish between these groups. See United States v. York, 578 F.2d 1036 (5th Cir.), cert. denied, 439 U.S. 1005, 99 S.Ct. 619, 58 L.Ed.2d 682 (1978) (no distinction between visitor and inmate); United States v. Hearst, 563 F.2d 1331, 1345 n.11 (9th Cir. 1977), cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978) (no distinction between pretrial detainee and inmate); Gettleman v. Werner, 377 F.Supp. 445, 451 (W.D.Pa.1974) (no distinction between prison guard and inmate).

      . Many cases exhibit a reluctance to abandon a reasonableness requirement although at the same time declaring no fourth amendment protection exists in a prison environment. See, e. g., United States v. Kelley, 393 F.Supp. 755 (W.D.Okla.1975); Gettleman v. Werner, 377 F.Supp. 445 (W.D.Pa.1974); Massachusetts v. DiMarzo, 364 Mass. 669, 308 N.E.2d 538 (1974); Robinson v. Mississippi, 312 So.2d 15 (Miss. 1975). California has also demonstrated an ambivalent attitude towards this issue, but in another manner. Compare California v. Lopez, 60 Cal.2d 223, 384 P.2d 16, 32 Cal.Rptr. 424 (1963), cert. denied, 375 U.S. 994, 84 S.Ct. 634, 11 L.Ed.2d 480 (1964), with North v. Superior Court, 8 Cal.3d 301, 502 P.2d 1305, 104 Cal.Rptr. 833 (1972), and In re Long, 55 Cal.App.3d 788, 127 Cal.Rptr. 732 (3d Dist. 1976).

      . State v. Ellefson, 266 S.C. 494, 500, 224 S.E.2d 666, 669 (1976).

      . Lanza v. New York, 370 U.S. 139, 143, 82 S.Ct. 1218, 1220, 8 L.Ed.2d 384 (1962).

      . See Robson, The Fourth Amendment Behind Bars: Search and Seizure in Prisons, 5 Nat’I J. Crim. Def. 259, 263 (1979).

      . Singer, Privacy, Autonomy, and Dignity in the Prison: A Preliminary Inquiry Concerning Constitutional Aspects of the Degradation Process in Our Prisons, 21 Buff. L. Rev. 669, 715 (1972).

      . The warrant clause and traditional probable cause, however, generally need not be satisfied in a prison setting due to the exigencies of prison security. See Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977); United States v. Myers, 431 F.Supp. 64, 66 (W.D.Okla.1976); Black v. Amico, 387 F.Supp. 88 (W.D.N.Y.1974).

        .See also 3 W. LaFave, Search and Seizure § 10.9 (1978).


source: Caselaw Access Project

author: ALDERMAN, Justice. SUNDBERG, Chief Justice, BOYD, Justice, OVERTON, Justice,

license: Public Domain

text:
    METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Petitioner, v. David Wayne BRIDGES, Respondent.
    No. 57989.
    Supreme Court of Florida.
    July 30, 1981.

      Robert A. Ginsburg, Dade County Atty., and Ralph C. Rocheteau, Asst. County Atty., Miami, for petitioner.
    Alan S. Ross of Weiner, Robbins, Tunkey & Ross, Miami, for respondent.
   ALDERMAN, Justice.

We have for review by direct appeal an order of the Circuit Court of the Eleventh Judicial Circuit upholding the constitutionality of section 925.036, Florida Statutes (Supp.1978), and construing it in such a manner as to permit the court to award in excess of the statutory amounts when extraordinary and unusual circumstances exist. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution (1972). We hold that section 925.036 is constitutional, that its language is mandatory and not directory, that, therefore, the trial court may not award in excess of the statutory limits, and that under this statute the maximum attorney’s fee allowable in this case was $4,000, $2,000 for each life felony. Accordingly, we vacate the trial court’s order awarding an attorney’s fee in excess of the statutory limits.

After trial, Alan Ross, who was appointed by the trial court to represent a defendant charged with two life felonies, filed a motion and affidavit requesting payment of attorney’s fees in the amount of $4,840. In his motion, Ross alleged that the gravity of the charges and the complexity of the case warranted a fee in excess of the $2,000 which he alleged was the maximum provided for by section 925.036(3). The trial court agreed with Ross, held the language of this statute to be directory only, and added the words “subject to extraordinary and unusual circumstances” to section 925.036. The Court explained that trial courts are in the best position to determine whether or not there are any circumstances which would entitle an attorney to fees additional to those allowed by section 925.036. With this construction, the trial court upheld the validity of section 925.036.

Initially, we note that both Ross and Dade County were under the misapprehension that the fee limits of section 925.036 could not be stacked and that the maximum allowable fee under this statute is $2,000. This is not the case, however. Construing section 925.036 in such a manner as to be in harmony with section 925.035, Florida Statutes (1977), we recently held in Wakulla County v. Davis, 395 So.2d 540 (Fla.1981), that the fee limits of section 925.036 could be stacked, and we explained:

The potential for conflict between the two sections is evident. One sets limits on the fees which may be awarded, while the other requires reasonable compensation. In establishing limits on the fees which can be paid court-appointed attorneys per case per defendant, the legislature clearly intended to limit the burden which such representation places on public treasuries and to provide guidelines for courts to follow. Conceivably, in the absence of any kind of limitation on fees, a small county with limited resources could be placed in serious financial difficulties. Section 925.036, Florida Statutes, was intended to decrease the likelihood of such an occurrence.
Section 925.035, Florida Statutes, on the other hand, seeks to insure that counsel is made available to those charged with a capital offense who otherwise could not afford to hire an attorney and that the attorney appointed is reasonably compensated for his services. The conflict between sections 925.035 and 925.036 arises when “reasonable compensation” exceeds the limits imposed by section 925.036.
It would be much more reasonable and just to allow the attorney to stack the máximums for each offense for which his client was tried. Under that interpretation, the attorney would be more realistically and fairly compensated for the time spent on the case, and less likely forced to accept what might often turn out to be unfair compensation for his representation. At the same time, such an interpretation would still provide counties protection from exorbitant, limitless legal fees. Guidelines and máximums would not be abolished; they would simply be more realistic and equitable.
Given the differing interpretations of chapter 925, the proper one is that which allows stacking. It is the only construction which preserves and promotes the legislative goal of protecting county treasuries and providing guidelines for courts without impairing the section of the statute requiring reasonable compensation for court-appointed attorneys. It leads to more reasonable, sensible results.

395 So.2d at 542-43. With this construction of section 925.036, we found it unnecessary to rule on the constitutionality of the statute because the requested fees fell within the fee limits of the statute.

Employing the construction we adopted in Wakulla County v. Davis, we hold that the maximum fee allowed Ross by section 925.036 for representation of defendant charged with two life felonies is $4,000. We also hold that this section is mandatory and not directory and that the trial court erred in construing it by adding the language which would permit the trial court to award fees higher than those specified by statute where the court determined exceptional circumstances to exist. This construction, the trial court found, was necessary ;o the constitutionality of the statute. We disagree with the trial court’s construction of this statute and with its determination that this construction is necessary to save the constitutionality of section 925.036.

A legislative enactment is presumed valid and will not be declared unconstitutional unless it is demonstrated beyond a reasonable doubt that the statute conflicts with some designated provision of the constitution. Whenever reasonably possible and consistent with the protection of constitutional rights, courts will construe statutes in such a manner as to avoid conflict with the constitution. But the court, in construing a statute, may not invade the province of the legislature and add words which change the plain meaning of the statute. State v. Elder, 382 So.2d 687 (Fla.1980). Furthermore, courts may not vary the intent of the legislature with respect to the meaning of the statute in order to render the statute constitutional. State v. Keaton, 371 So.2d 86 (Fla.1979). In the present case, we find that the construction given section 925.036 by the trial court which effectually amends the statute to make it directory rather than mandatory was unnecessary and unwarranted. The statute, plainly read as a mandatory limitation on the maximum fees allowable and construed by us in Wakulla County v. Davis to permit stacking, does not conflict with any specific constitutional provision.

Neither the due process nor equal protection clauses are implicated by section 925.-036. In MacKenzie v. Hillsborough County, 288 So.2d 200 (Fla.1973), we upheld the constitutional validity of section 925.035 which established a maximum of $750 as reasonable compensation to counsel appointed to represent an indigent in a criminal case. This statute was challenged on the basis that it contravened the equal protection and due process clauses of the Constitutions of the United States and of the State of Florida. Initially, we reiterated that the right to recover attorney’s fees as a part of the costs in an action did not exist at common law and that it therefore was provided for by the legislature’s enactment of section 925.035. We then held:

And, while appellant argues that Section 925.035 fails to comport with the Due Process and Equal Protection Clauses of the Constitutions of the United States and of the State of Florida, as applied to the provision by defense counsel of extraordinary services, we are of the opinion that: 1) Section 925.035 does, both on its face and as applied, comport with the foregoing constitutional provisions; and, 2) if a change in the foregoing statutorily-provided compensation be called for, it is within the province of the Legislature, not the courts, to make such change. [Footnote omitted.]

288 So.2d at 201.

We further hold that Ross has failed to demonstrate that an indigent defendant’s right to counsel has been impinged upon in any way by this statute. Indigent defendants are not denied counsel by section 925-036. At common law, it was the professional obligation of the lawyer to accept an assignment to represent an indigent party when directed to do so by the court, but there was no right to compensation from the government or any other source for representation of the poor. In the Interest of D. B., 385 So.2d 83 (Fla.1980). Since Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), which established a fundamental constitutional right to counsel in various classes of cases, questions have arisen as to whether lawyers should be relieved of their historical duty to represent the poor. Questions have even arisen as to whether requiring a member of the Bar to represent an indigent with no compensation or minimum compensation amounts to a taking of property without due process of law. We have held that lawyers should not be completely relieved of their responsibility to represent the poor although we have recognized the concomitant obligation of the government to provide legal representation when such is constitutionally required, and we have held that requiring a lawyer to perform his historical professional responsibility to represent the poor does not constitute an unfair “taking” of private property in violation of due process. In the Interest of D. B.

Unless it is demonstrated that the maximum amounts designated for representation in criminal cases by section 925.036 are so unreasonably insufficient as to make it impossible for the courts to appoint competent counsel to represent indigent defendants, we cannot say that section 925.036 violates the sixth amendment right to counsel. In the present ease, the defendant represented by Ross was not denied his sixth amendment right to representation by section 925.036, nor is it contended that he was denied such right.

Accordingly, we hold that the maximum fee schedule in section 925.036 is mandatory, and we uphold the constitutionality of this statute. We further hold that the appropriate fee permitted by section 925.036 in the present case for representing defendant for two life felonies is $4,000. Therefore, we vacate the trial court’s order awarding more than this statutory maximum and remand with directions to the trial court to enter an order compensating Ross in the amount of $4,000.

It is so ordered.

ENGLAND and McDONALD, JJ., concur.

SUNDBERG, C. J., concurs specially with an opinion with which ENGLAND, J., concurs.

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

OVERTON, J., dissents with an opinion in which ADKINS, J., concurs.

SUNDBERG, Chief Justice,

concurring specially.

While I concur in the holding of the Court that section 925.036, Florida Statutes (Supp.1978), is facially constitutional insofar as the assaults made upon it in this case, I deem the crux of this matter to lie in the sixth amendment right to counsel. As I read Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), it placed the obligation upon the state to supply reasonably effective counsel to indigent defendants in certain classes of criminal cases. Of course, this constitutionally guaranteed right to counsel has been expanded since Gideon to other classes of actions. See, e. g., Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). The point is, however, that the state has a constitutionally imposed responsibility, apart from the professional obligation of members of the bar, to provide legal counsel for indigent criminal defendants. It was in recognition and fulfillment of this responsibility that Florida was one of the first states to put in place a state funded, effective public defender system.

I realize that it is the statutory financial responsibility of a county which is in issue here due to the apparent disability of the public defender’s office. But that is of no constitutional moment. Under the dictates of Gideon it is the ultimate responsibility of the state to fund the guarantee of the sixth amendment where indigents are concerned.

To my point then. I concede the authority of the legislature, in its role of protector of the public treasury, to establish reasonable limitations upon the amounts paid to lawyers from public coffers for their appointive representation of indigent criminal defendants. This authority is subject, however, in my opinion, to the special responsibility of the courts to assure that indigent criminal defendants receive effective assistance of counsel. Ineffective counsel is no counsel at all and such representation of the poor would make the promise of the sixth amendment a hollow one indeed.

Hence, should it be demonstrated that the monetary limitation placed by the legislature on the compensation paid to court appointed attorneys representing indigent criminal defendants be so unreasonable as to make it impossible to secure effective counsel to those individuals, then there is no doubt in my mind that it would be the duty of the courts to strike down such limitations in favor of reasonable compensation. In assessing the reasonableness of the compensation for representation of indigents, naturally the lawyer’s professional obligation to aid the poor would have to be taken into account. The test would not be lavish compensation nor that which would be expected from a pecunious client, rather it would be that amount which is fair in light of the lawyer’s professional obligation to the poor and not confiscatory of his time and talents. Furthermore, such a showing would have to relate to lawyers or types of cases as a class and should not be entertained on an individual lawyer or individual case basis as was done by the trial court in the instant case.

There being no such showing in this case I concur with the decision reached by the Court today respecting the facial validity of section 925.036.

ENGLAND, J., concurs.

BOYD, Justice,

concurring in part and dissenting in part.

I agree with the majority’s application of the “stacking” principle announced in Wakulla County v. Davis, 395 So.2d 540 (Fla. 1981), to this case but dissent from that portion of the decision that holds that a trial court has no power to award a fee in excess of the statutory maximum in extraordinary circumstances.

The circuit court appointed Alan S. Ross to represent David Wayne Bridges, who was charged with two life felonies. After the trial, attorney Ross moved for payment of attorney’s fees in the amount of $4840.00. The judge granted the requested amount, and in the course of doing so, held that section 925.036, Florida Statutes (Supp. 1978), is constitutional as he construed it.

Section 925.036 provides:

An attorney appointed pursuant to s. 925.035 or s. 27.53 shall, at the conclusion of the representation, be compensated at an hourly rate fixed by the chief judge or senior judge of the circuit in an amount not to exceed the prevailing hourly rate for similar representation rendered in the circuit. Such attorney shall be reimbursed for expenses reasonably incurred, including the costs of transcripts authorized by the court. The compensation for representation shall not exceed the following per case per defendant:
(1) For misdemeanors and juveniles represented at the trial level: $500.
(2) For noncapital, nonlife felonies represented at the trial level: $1,500.
(3) For life felonies represented at the trial level: $2,000.
(4) For capital cases represented at the trial level: $2,500.
(5)For representation on appeal: $1,000.

The trial court ruled that the statutory directive that compensation “shall not exceed the following per case per defendant” must include the qualification, “subject to extraordinary and unusual circumstances.” The trial court’s construction was predicated on conflict between section 925.036, as written, and section 925.035(1), Florida Statutes (1977), which provides:

(1) If the court determines that the defendant in a capital case is insolvent and desires counsel, it shall appoint an attorney to represent the defendant. If the court appoints an attorney other than the public defender, the attorney shall be allowed reasonable compensation for representing the defendant, as determined by the court. In addition to such compensation, a reasonable amount shall be allowed for the cost of investigation and preparation of the case.

I agree with the trial court that the statutory maximum amounts for court-appointed attorneys’ fees must be construed in pari materia with the legislative principle, announced in section 924.035(1), Florida Statutes (1977), calling for “reasonable compensation” for court-appointed attorneys in capital cases.

The statutes providing for compensation for attorneys appointed to represent indigents were enacted to effectuate the rights of persons to effective assistance of counsel under the Sixth Amendment and the Fourteenth Amendment due process clause, of the United States Constitution.

The courts, in their turn, are charged with the responsibility of protecting the right of the accused to a fair trial and the effective assistance of counsel. In the extremely rare, exceptional case where the statutory maximum amount is insufficient compensation for the lawyer to assure a fair trial, with effective assistance of counsel, to the accused, then the court has the power to order compensation in excess of the prescribed amounts. See Rose v. Palm Beach County, 361 So.2d 135 (Fla.1978). I therefore would hold that a trial court may order compensation in excess of the statutory maximum in extraordinary circumstances.

The defendant in this case was charged with two life felonies. Both the trial court judge and the defense attorney, in their discussion of the issue, assumed that section 925.036(3) provided a $2,000 maximum, regardless of the number of life felonies charged. We have determined the legislative intent to be that the statutory maximum amounts apply to each count when more than one crime are being tried together. Wakulla County v. Davis. Therefore the statutory maximum under ordinary circumstances in this case is $4,000, $2,000 for each life felony tried. Since the record does not disclose whether there were any extraordinary circumstances that would justify a fee in excess of $4,000,1 would remand this case with directions to enter an order either compensating attorney Ross in the amount of $4,000, or awarding a larger amount upon determining that extraordinary circumstances existed that would justify such an award.

ADKINS, J., concurs.

OVERTON, Justice,

dissenting.

I dissent. Although I agree that the statutory limitation is proper in most criminal cases, I have concluded that the sixth amendment right to reasonably effective counsel clearly applies in those cases which have multiple issues and large numbers of witnesses. This is especially true when a case requires an exceedingly large amount of an attorney’s time for adequate representation. I would consequently find the statute directory and not mandatory.

ADKINS, J., concurs.

      . Section 925.036, Florida Statutes (Supp. 1978), provides:
      An attorney appointed pursuant to s. 925.035 or s. 27.53 shall, at the conclusion of the representation, be compensated at an hourly rate fixed by the chief judge or senior judge of the circuit in an amount not to exceed the prevailing hourly rate for similar representation rendered in the circuit. Such attorney shall be reimbursed for expenses reasonably incurred, including the costs of transcripts authorized by the court. The compensation for representation shall not exceed the following per case per defendant:
      (1) For misdemeanors and juveniles represented at the trial level: $500.
      (2) For noncapital, nonlife felonies represented at the trial level: $1,500.
      (3) For life felonies represented at the trial level: $2,000.
      (4) For capital cases represented at the trial level: $2,500.
      (5) For representation on appeal: $1,000. (Emphasis added.)

      . Section 925.035(1), Florida Statutes (1977), provides in pertinent' part:
      If the court determines that the defendant in a capital case is insolvent and desires counsel, it shall appoint an attorney to represent the defendant. If the court appoints an attorney other than the public defender, the attorney shall be allowed reasonable compensation for representing the defendant, as determined by the court....

      . Although not pertinent to the disposition of this cause, we note that the legislature, in its 1981 session, amended section 925.036 substantially increasing the fee limits but disallowing stacking. Ch. 81-273, Laws of Florida (1981). Of course, we intimate no opinion with respect to the statute as amended in 1981.


author: PER CURIAM.

text:
    Edward William BRIERTON, Appellant, v. STATE of Florida, Appellee.
    No. 79-1484.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1981.
    Rehearing Denied Sept. 9, 1981.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed with directions that appellant be granted a new trial in accordance with the Supreme Court’s decision in Tascano v. State, 393 So.2d 540 (1980), rehearing denied February 27, 1981.

ANSTEAD, MOORE and BERANEK, JJ., concur.


text:
    Ricky RANDOLPH, Appellant, v. STATE of Florida, Appellee.
    No. 79-1011.
    District Court of Appeal of Florida, Fourth District.
    April 22, 1981.
    Rehearing Denied Sept. 9, 1981.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed with directions that appellant be granted a new trial in accordance with the Supreme Court’s decision in Tascano v. State, 393 So.2d 540 (Fla.1980), rehearing denied February 27, 1981.

MOORE, BERANEK and HERSEY, JJ., concur.


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

text:
    Estate of Emma Geer Davis Kennedy GANIER, deceased. Connie Davis DOOLAN, as Personal Representative of the said Estate, Appellant, v. Estate of Frederic F. GANIER, deceased, Appellee.
    No. 79-200.
    District Court of Appeal of Florida, Fifth District.
    May 27, 1981.
    Rehearing Denied June 12, 1981.

      Richard S. Graham, Daytona Beach, for appellant.
    Ollie Lancaster, Jr. and John R. Godbee, Jr., Daytona Beach, for appellee.
   SHARP, Judge.

The personal representative of Emma Kennedy Ganier’s estate appeals the lower court’s judgment declaring Frederic Ganier was a “pretermitted spouse” pursuant to section 732.301, Florida Statutes (1979) and allowing him to receive one half of Emma’s estate. Frederic died before the conclusion of the proceedings below, and his personal representative was substituted in his place. We reverse the judgment.

Emma, a 79 year old widow, met Frederic, a 76 year old widower, in 1973 at a boarding house in Daytona Beach. They became “inseparable” shortly thereafter. Emma received $12,000.00 a year in dividend income and social security, and Frederic had an annual income of approximately $4,800.00 from social security and a pension from General Dynamics, where he had worked as a chief maintenance man. They pooled their resources and paid their joint living expenses out of a joint account at the Atlantic First National Bank. Emma retained in her sole name a checking account at the Atlantic First National Bank and a savings account at the Security First Federal Savings & Loan Association, in Daytona Beach. Frederic testified that Emma gave him her two diamond rings in 1977 to sell to a friend for cash to pay their joint bills. Frederic kept his more valuable diamond ring however.

Emma made her will in 1977. She left her bank accounts at Security First Federal and the Atlantic Bank to Frederic, various specific bequests (including her jewelry) to her granddaughter and great-granddaughter, and the residue to her two granddaughters. Frederic made his will in 1976. Emma was his sole beneficiary, and her granddaughters were contingent beneficiaries. His 1978 will named Emma or his step-son as sole beneficiary.

In early 1978, Emma broke her hip and was unable to move about except with the aid of a walker. She required care by a nurse and Frederic. Frederic decided to marry Emma in July 1978. Shortly thereafter, Emma suffered a debilitating stroke. Frederic filed a petition to have her declared incompetent on November 28, 1978. He was appointed her guardian on December 15, 1978. She was then in the Halifax Hospital. She died on January 7, 1979.

After Emma had her stroke but before she was declared incompetent, Frederic had Emma close out her account at the Atlantic Bank. It had a balance of $1,756.00. These funds were deposited into the joint account. On December 15, 1978, Frederic took Emma’s $4,500.00 dividend check, kept $1,000 in cash and put the balance in their joint account at the Atlantic Bank. On December 16, 1978, he withdrew $10,000 from Emma’s savings account at Security First Federal and used it to open an account for himself at the Sun Bank. It was spent in full over a six month period, in small cash withdrawals. He withdrew another $2,750 from Emma’s savings also on December 26, 1978, and deposited it in the joint account at the Atlantic Bank. He never accounted for any of these funds.

The trial court held that Frederic was a “pretermitted spouse” because no testimony or evidence was offered to support the view that Emma contemplated marriage to Frederic at the time she executed her will and because the two bank accounts specifically bequeathed to Frederic by Emma in her will “lapsed” when they were closed or reduced to small balances shortly before her death. The personal representative for Emma’s estate proved that Frederic, acting as Emma’s guardian after she was declared incompetent, expended or exhausted the bank account funds totalling some $17,-000.00. Frederic did not account for these funds, and he testified that he thought these funds belonged to him. The trial court ruled that whether or not Frederic misappropriated or misspent Emma’s funds was immaterial.

We reverse this judgment because the record clearly shows that Frederic was “provided for” in Emma’s will, at least pri-ma facie, within the meaning of section 732.301, Florida Statutes (1979). The “pre-termitted spouse” statute provides:

When a person marries after making a will and the spouse survives the testator, the surviving spouse shall receive a share in the estate of the testator equal in value to that which the surviving spouse would have received if the testator had died intestate, unless:
(1) Provision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement;
(2) The spouse is provided for in the will; or
(3) The will discloses an intention not to make provision for the spouse.
The share of the estate that is assigned to the pretermitted spouse shall be obtained in accordance with § 733.805.

Section 732.301, Florida Statutes (1979). The sole question in this case is whether Frederic was “provided for” in Emma’s will, as none of the other exceptions are applicable.

Statutes in many states provide that under various circumstances a will is revoked or partially revoked by the subsequent marriage of a testator. 79 Am.Jur.2d Wills § 576 (1975). These statutes are in derogation of the general power to make a will and should be strictly construed. No exception should be extended to include a class not clearly comprehended in the statute. 79 Am.Jur.2d Wills § 576 (1975).

Section 732.301(2) simply and clearly says it is not applicable if the claiming spouse is “provided for in the will.” It says nothing about the “gloss” superimposed by the lower court in this case — that this provision must have been made “in contemplation of marriage.” The “contemplation of marriage” requirement originated as a part of the common law rule that a man’s will would be revoked after marriage and the birth of a child, unless he made a provision in his will contemplating both events. Redfearn, Wills and Administration in Florida, § 8.10, (5th ed. 1977). Many statutes in other jurisdictions expressly retain the requirement that the provision be made in contemplation of marriage. Cases from those jurisdictions are not on point. See Annot., 97 A.L.R.2d 1026, § 3 (1964). There is no basis in Florida’s pretermitted spouse statute to support the reinstatement of this common law rule. Under a statute like section 732.301, a will which provides for the spouse is not revoked by the subsequent marriage of the testator, notwithstanding that there is no indication in the will or in the evidence that the testator contemplated marriage with such person when the will was made. Annot., 97 A.L.R.2d 1026, § 2[b] (1964). See In Re Livingston's Estate, 172 So.2d 619 (Fla.2d DCA 1965).

The trial court and the appellee rely upon In Re Steinert’s Estate, 137 So.2d 856 (Fla.2d DCA 1962). That case held that even though the surviving spouse was left $30,000 in the will, the widow was entitled to an intestate share of the estate because “[n]o evidence was offered here to support the view that testator contemplated marriage to appellee at the time of the execution of his will ...” 137 So.2d at 858. However In Re Livingston’s Estate, 172 So.2d 619 (Fla.2d DCA 1965), decided by the same court three years later, receded from that “gloss”. It held that the surviving spouse has the burden of proving that the will failed to provide for him.

This exception, when analyzed, is evident upon the face of the will itself, at least to the extent that such will established, pri-ma facie, that ‘such spouse is provided for in the will.’ We therefore hold that where one marries after making a will, and the spouse survives the testator, and such will contains a provision for such survivor, such survivor would have the burden of alleging and proving that such will failed to provide for them as contemplated by F.S. § 731.10, F.S.A.

172 So.2d at 620. The widower in that case was bequeathed a 1961 Cadillac.

The dissent argues that a spouse may be effectively “disinherited” by failure to invoke the pretermitted spouse statute where a bequest is minimal or the will is made a long time prior to the parties’ marriage. However, the Probate Code covers this situation by providing that if a surviving spouse is dissatisfied with the provision in the will made for him or for her, the widower or widow can take an “elective share” of the estate. § 732.201, Fla.Stat. (1979). See In Re Suarez Estate, 145 Fla. 183, 198 So. 829 (1941). In this case, Frederic apparently did not apply for an elective share, and at the time that In Re Livingston’s Estate was decided, the Florida probate laws did not have a similar provision for widowers. Section 732.201, Florida Statutes (1979), which provides the right to an elective share, was created from former section 731.34 which provided for dower in realty and personalty. We must assume the Legislature was aware of section 732.201, Florida Statutes (1979) when it enacted section 731.10 as part of the “new” Probate Code.

The record clearly shows that Emma married after making her will; that Frederic survived her; and that there was a specific bequest of bank accounts to Frederic in Emma’s will. As stated in the Livingston case, the burden was on Frederic to prove that the will did not provide for him. He failed to carry this burden.

Based on the finding that the specific bequests had “lapsed”, the trial court alternatively concluded that Emma’s will failed to provide for Frederic. We do not need to reach the novel question of whether the ademption of a specific bequest can invoke the operation of Florida’s pretermitted spouse statute because the record does not show that an ademption occurred. Therefore, Frederic was provided for in the will.

There is a split of authority concerning whether or not the sale or disposition of property by a conservator or guardian during the testator’s lifetime can ever cause an ademption. The more equitable view is that a bequest will adeem if the use of the funds or property was necessary and duly required for the ward’s care. Wilmerton v. Wiimerton, 176 F. 896 (7th Cir. 1910), cert. denied, 217 U.S. 606, 54 L.Ed. 900, 30 S.Ct. 696 (1910); Annot., 51 A.L.R.2d 770, § 2(b) (1957). See In Re Estate of Watkins, 284 So.2d 679 (Fla.1973). This rule is consistent with Florida’s ademption statute:

If specifically devised property is sold by a guardian of the property for the care and maintenance of the ward or if a condemnation award or insurance proceeds are paid to a guardian of the property ... the specific devisee has the right to a general pecuniary devise equal to the net sale price, the condemnation award, or the insurance proceeds.

The record fails to show that Frederic accounted for Emma’s bank account funds or that he spent them for her care. A guardian, like a trustee, cannot spend a ward’s funds as his own. He cannot withdraw funds from a ward’s checking or savings account so as to defeat the ward’s testamentary plan, unless the funds are needed to pay for the ward’s care and support. Drozinski v. Straub, 383 So.2d 301 (Fla.2d DCA 1980). Further, where the guardian fails to file guardianship account-ings and admits he treated the ward’s funds as his own, he has the burden of proving he faithfully expended the funds. Beck v. Beck, 383 So.2d 268 (Fla.3d DCA 1980). Having failed to carry this burden, Frederic cannot now argue that misapplication of his ward’s funds adeemed his own legacy. Forbes v. Burket, 181 So.2d 682 (Fla.2d DCA 1966), on appeal after remand, 208 So.2d 670 (Fla.2d DCA 1968); Annot.; 61 A.L.R.2d 449, § 17 (1958); Annot., 51 A.L. R.2d 770, § 5 (1957); 80 Am.Jur.2d Wills § 1713 (1975).

DAUKSCH, C. J., concurs.

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

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

I respectfully dissent. In Re Livingston’s Estate, 172 So.2d 619 (Fla.2d DCA 1965) did hot recede from the “gloss” requirement that to be “provided for in the will,” the provision must be in contemplation of marriage. In Re Steinert’s Estate, 137 So.2d 856 (Fla.2d DCA 1962).

The Livingston opinion cites Steinert without any attempt to distinguish or overrule the decision in that case. I conclude, therefore, that the court did not intend to recede from Steinert, and the decisions are compatible. The court in Livingston held:

We therefore hold that where one marries after making a will and the spouse survives the testator, and such will contains a provision for such survivor, such survivor would have the burden of alleging and proving that such will failed to provide for them as contemplated by F.S. 731.10 F.S.A. (Emphasis added.)

172 So.2d at 620.

Steinert had interpreted the “provided for the spouse” provision of section 731.10 as meaning “in contemplation of marriage.” Therefore, it is clear that Livingston was concerned solely with who had the burden of proof, not what was necessary to be proved.

In Livingston, the testatrix left James Livingston a Cadillac automobile by will executed prior to their marriage but after they had become engaged. The trial court’s order stated:

Such cases ... indicate that the burden of proof herein is upon the respondents [decedent’s estate] to show the existence of at least one of the exceptions in order to defeat petitioner’s claim herein as a pretermitted spouse.

The Second District Court of Appeal reversed for a new hearing at which the surviving husband, because the will contained a provision for him, would have the burden of alleging and proving that such will failed to provide for him as contemplated by section 731.10, Florida Statutes (1965), and as earlier interpreted by Stei-nert.

If the majority is correct and contemplation of marriage is not required, after reviewing the Livingston opinion one may ask, rhetorically, what was the surviving spouse required to prove? Was it that the Cadillac was not adequate provision, or that the bequest had lapsed?

Under the common law, the marriage of a man and the birth of a living child subsequent to the making of his will operated as a complete revocation unless provision was made in.the will in contemplation of both events. Herzog v. Trust Co. of Eastern, 67 Fla. 54, 64 So. 426 (1914); Belton v. Summer, 31 Fla. 139, 12 So. 371 (1893). The marriage of a woman revoked her will even without the birth of issue. Colcord v. Conroy, 40 Fla. 97, 23 So. 561 (1898); 95 C.J.S. Wills § 291 (1957); Redfearn, Wills and Administration in Florida, § 8.10 (5th ed. 1977). These rules were not changed in Florida until the Probate Act of 1933. The language of the act as found in section 8(d), section 5477(4)(d), Comp.Gen.Law Supp. was essentially the same as now found in section 732.301, Florida Statutes (1977) with which we are now concerned.

The adoption of the Probate Act of 1933 was not a rejection of the common law rules but rather a codification of them. The common law had, by then, changed from the earlier rule which provided that marriage and the birth of a child or marriage alone in the case of a woman, after execution of a will resulted in revocation of the entire will. Easterlin v. Easterlin, 62 Fla. 468, 56 So. 688 (1911). The contemplation of marriage exception developed to avoid the unfairness to other beneficiaries where it was obvious the testator had executed his will with marriage to this particular spouse in mind. Belton v. Summer, 31 Fla. 139, 12 So. 371 (1893).

The purpose of the statute is to give effect to a will which reflects a testamentary intent that the will be effective even should the testator subsequently marry and to protect the surviving spouse’s right to inherit where such intent is not demonstrated.

Most courts have rejected any inquiry into adequacy of a provision in a will. In interpreting a will, a court is not concerned with the amount of the testator’s bounty. In Re Bridler’s Estate, 165 Cal.App.2d 486, 331 P.2d 1028 (1958); In Re Brannon’s Estate, 111 Cal.App. 38, 295 P. 83 (1931); Czepiel v. Czepiel, 146 Conn. 439, 151 A.2d 878 (1959).

The majority opinion overlooks a well known fact of life; that is, that good friends often marry. The circumstance that a person was sufficiently appreciated to be the recipient of a bequest in a will should not militate against his or her taking by intestacy when a person who was a stranger to the testator and therefore not included in the will can so elect. The inquiry of the court should be to determine whether the testator intended that the will should remain his will after his marriage. Therefore, the ultimate question is, did he contemplate marriage at the time he executed his will?

While it is true as the majority suggests, that section 732.201, Florida Statutes (1979) prevents a surviving spouse to whom a small bequest is given in the will from being “disinherited” because he or she may choose to take an elective share, this is small consolation to the spouse who would otherwise take the entire estate as would be the case where the decedent had no lineal descendants. ' § 732.102(l)(a), Fla.Stat. (1979).

Some courts, interpreting similar statutes, reason that if property is specifically devised or bequeathed to a person and that person and the testator subsequently marry, then the requirements of the statute are met because the will speaks as of time of death. In Re Appenfelder’s Estate, 99 Cal.App. 330, 278 P. 473 (1929). Most courts, however, have rejected this reasoning as did the California Supreme Court in In Re Poisl’s Estate, 44 Cal.2d 147, 280 P.2d 789 (1955). There the court pointed out that decisions applying the contrary rule gave no consideration to the underlying purpose and policy of the statute. The wording of the California statute is remarkably similar to section 732.301, Florida Statutes (1977).

In the case before us, the trial court applied the correct burden of proof as enunciated in Livingston. In its order, the court said in paragraph four: “Said reference to petitioner was not made to him in the prospective status as the husband of the testatrix . ... ” There is substantial evidence to support this finding. There was no evidence to support the view that marriage was contemplated, and the court so found.

If Mr. Ganier were the pretermitted spouse and there is indeed a requirement that marriage be contemplated, it is not necessary to reach the question of whether the bequest under the will lapsed. If it is demonstrated that he misused funds in his trust as guardian, recovery can be had. I readily agree with the majority that he could not misappropriate his wife’s property and then contend his bequest had lapsed because of that misappropriation.

The record reflects that Mr. Ganier was devious and greedy in dealing with his wife’s funds. That fact should not persuade us to adopt an impractical rule of law which, in my opinion, is in direct conflict with established and respected precedent.

      . The petition for administration valued the assets of Emma’s estate at less than $60,0t)0.00.

      . § 732.301(2), Fla.Stat. (1979).

      . The adoption of the common law rule would pose interpretation problems of “how” the prospective spouse must be “contemplated.” Must the spouse be mentioned in the will as “my intended” etc.? Can the intent to marry be shown by extrinsic facts or statements and if so, whose? Must the spouse’s bequest be large enough to rank with what a spouse “should receive” in a court’s opinion? The statute gives the courts no help because it is completely silent as to “contemplation.” This suggests why it should not be read into the statute by judicial interpretation.

      . The elective share is equal to 30 percent of the net estate assets. § 732.207, Fla.Stat. (1979).

      . Redfearn, Wills and Administration in Florida § 12.07 (5th ed. 1977).

      . “Ademption” is different than “lapse.” A bequest “lapses” for various reasons, but primarily because the legatee predeceases the testator. Sorrels v. McNally, 89 Fla. 457, 105 So. 106 (1925); 80 Am.Jur.2d Wills § 1661 (1975). Bequests “adeem” when a specific bequest is sold, expended, or destroyed before the death of the testator. 80 Am.Jur.2d Wills §§ 1702; 1706 (1975); Redfearn, supra note 5, § 12.09.

      . Annot., 61 A.L.R.2d § 16 (1958); Annot., 51 A.L.R.2d 770 §§ 3, 4 (1957).

      . § 732.606(1), Fla.Stat. (1979).

      . If the specific legatee and the guardian were different individuals, the specific legatee could recover the misapplied assets from the guardian, or pursue a damage claim against him. Only if that fails should the question of ademption arise. In this case no pursuit is needed since Frederic apparently received his specific bequest.

      . Now section -732.301, Florida Statutes (1979).

      . While many jurisdictions hold that this intent must appear from the will itself, Redfeam, Wills and Administration in Florida, § 8.10, the Livingston court apparently did not subscribe to this view because the will did not disclose any such intent but instead, the husband was given the burden of proving he was not provided for, which he could only do by parol evidence.

      . California Probate Code § 70 provides:
      If a person marries after making a will, and the spouse survives the maker, the will is revoked as to the spouse, unless provision has been made for the spouse by marriage contract, or unless the spouse is provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of revocation can be received.


author: HURLEY, Judge.

text:
    Pat PROCACCI and Rose Procacci, Appellants, v. Mario ZACCO, et al., Appellees.
    No. 79-1829.
    District Court of Appeal of Florida, Fourth District.
    June 3, 1981.
    Rehearing Denied Sept. 9, 1981.
    Gary S. Brooks of Williams, Salomon, Kanner, Damian, Weissler & Brooks, Miami, for appellants.
    Leonard D. Pertnoy of Pertnoy & Green-berg, Miami, for appellees.
   HURLEY, Judge.

We are asked in this appeal to determine whether claims for slander of title and tor-tious interference with a contractual relationship may be predicated upon the filing of a notice of lis pendens which contained information permitted by Section 48.-23(l)(a), Florida Statutes (1975). Here, the notice was proper under Florida law and the court action to which it referred was based upon a recorded instrument. Thus, we answer in the negative.

In 1974 appellants filed an action to establish the existence of an easement over appellees’ property. At the same time, appellants filed a notice of lis pendens pursuant to Section 48.23, Florida Statutes (1973). The case was tried before the court and resulted in a determination that no easement existed; thus, a verdict for the appellees/defendants. The judgment was affirmed on appeal.

Subsequently, the defendants in the easement action, appellees here, filed a two count complaint against appellants.. Count one alleged slander of title and count two alleged tortious interference with a contractual relationship; both counts were predicated upon the filing of the notice of lis pendens in the earlier easement action. After some preliminary skirmishing in the trial court, which included a motion to dismiss by appellants, summary judgment on liability was entered against appellants. This appeal followed.

We start by examining the two causes of action. Slander of title, or as it is sometimes called, disparagement of property, arises out of an injurious falsehood, such as malicious publication of false statements concerning title to one's property. Old Plantation Corp. v. Maule Industries, Inc., 68 So.2d 180 (Fla.1953); Continental Development Corp. v. Duval Title and Abstract Co., 356 So.2d 925 (Fla.2d DCA 1978); Gates v. Utsey, 177 So.2d 486 (Fla. 1st DCA 1965). On the other hand, tortious interference with a contractual relationship involves: “(1) the existence of a 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.” Symon v. J. Rolfe Davis, Inc., 245 So.2d 278, 280 (Fla. 4th DCA), cert. denied, 249 So.2d 36 (Fla.1971). See also Lake Gateway Motor Inn, Inc. v. Matt’s Sunshine Gift Shops, Inc., 361 So.2d 769 (Fla. 4th DCA 1978), cert. denied, 368 So.2d 1370 (Fla.1979).

Both torts share a common legal basis; both involve intentional interference with another’s economic relations. Moreover, the ease at bar illustrates an additional aspect of their commonality for, as alleged here, both torts are subject to the same defenses. It has long been recognized that the privilege defenses available in an action for personal defamation are also available in an action for slander of title. See Restatement (Second) of Torts § 635 (1977); Sailboat Kay, Inc. v. Gardner, 378 So.2d 47 (Fla.3d DCA 1979). Reasoning from this premise, we determine that tor-tious interference is also subject to the same privilege defenses due to the common root it shares with slander of title and the fact that, in this case, both torts allegedly arose from the single act of filing the notice of lis pendens.

The privilege sought to be asserted here is the absolute privilege of participants in judicial proceedings which was described in Sussman v. Damian, 355 So.2d 809, 811 (Fla.3d DCA 1977):

It is the established law of this state that defamatory words published by lawyers during the due course of a judicial procedure are absolutely privileged and cannot form the basis for a defamation action so long as the statements uttered are connected with, or are relevant or material to the cause at hand or the subject of inquiry no matter how false or malicious such statements may in fact. be.

See also State v. Tillett, 111 So.2d 716 (Fla.2d DCA 1959). Appellants contend that a proper notice of lis pendens, based on a recorded instrument and filed pursuant to Florida law, is a publication much like a pleading or other statement made in the course of a judicial proceeding and therefore, they argue, it enjoys the same immunity. We agree.

Subsection (l)(a) of Section 48.23, Florida Statutes (1973) states:

No action in any of the state or federal courts in this state operates as a lis pen-dens on any real or personal property involved therein or to be affected thereby until a notice of the commencement of the action is recorded in the office of the clerk of the circuit court of the county where the property is, containing the names of the parties, the time of institution of the action, the name of the court in which it is pending, a description of the property involved or to be affected and a statement of the relief sought as to the property.

The purpose of a lis pendens as authorized by this statute “is to notify prospective purchasers and encumbrancers that any interest acquired by them in the property in litigation is subject to the decree of the court. It is simply a notice of pending litigation.” Beefy King Internationa], Inc. v. Veigle, 464 F.2d 1102, 1104 (5th Cir.1972); Cacaro v. Swan, 394 So.2d 538 (Fla. 4th DCA 1981). Lis pendens “is notice of all facts apparent on the face of the pleadings and such other facts as the pleadings would necessarily put the purchaser on inquiry.” De Pass v. Chitty, 90 Fla. 77, 105 So. 148, 150 (1925); Marchand v. De Soto Mortgage Co., 149 So.2d 357 (Fla.2d DCA 1963). Thus, lis pendens is merely a “statutorily authorized republication of pleadings in a judicial proceeding. If such pleadings are absolutely privileged, logically the statutorily authorized republication of such pleadings should likewise be privileged.” Stewart v. Fahey, 14 Ariz.App. 149, 481 P.2d 519, 521 (1971). Since the notice of lis pendens has no existence separate and apart from the litigation of which it gives notice, we hold that appellants’ filing of a notice of lis pendens was a part of the judicial proceeding to determine the existence of an easement and thus, it is encompassed within the judicial proceedings privilege.

Our decision reflects the general policy underlying all privilege defenses that “[i]n certain circumstances the public need for free and unfettered discussion outweighs the need to protect individuals from injury caused by false statements.” Wendy’s of South Jersey, Inc. v. Blanchard Management Corp., 170 N.J.Super. 491, 406 A.2d 1337, 1338 (1979); see also, 50 Am.Jur.2d Libel and Slander § 192. We are also fortified with the knowledge that text writers and the overwhelming weight of authority which have considered this subject have reached the same conclusion. For example, 51 Am.Jur.2d Lis Pendens § 22 states:

A notice of lis pendens, filed under the authority of a statute, is, it has been held, as much entitled to the benefit of privilege, within contemplation of libel laws, as are the pleadings in the action to which the notice relates.

See also Zamarello v. Yale, 514 P.2d 228 (Alaska 1973); Kelly v. Perry, 111 Ariz. 382, 531 P.2d 139 (1975); Stewart v. Fahey, supra; Albertson v. Raboff, 46 Cal.2d 375, 295 P.2d 405 (1956); Berger v. Shea, 150 Ga.App. 812, 258 S.E.2d 621 (1979); Houska v. Frederick, 447 S.W.2d 514 (Mo.1969); Hauptman v. Edwards, Inc., 170 Mont. 310, 553 P.2d 975 (1976); Wendy’s of South Jersey, Inc. v. Blanchard Management Corp., supra; Kropp v. Prather, 526 S.W.2d 283 (Tex.Civ.App.1975); Hansen v. Kohler, 550 P.2d 186 (Utah 1976).

Accordingly, the order of summary judgment entered herein is reversed and the cause is remanded with instructions to enter an order granting appellants/defendants’ motion to dismiss.

BERANEK and GLICKSTEIN, JJ., concur.

      . The notice read as follows:
      NOTICE OF LIS PENDENS TO THE ABOVE NAMED DEFENDANTS AND ALL WHOM IT MAY CONCERN: NOTICE IS HEREBY GIVEN that an action was instituted in the above styled court seeking declaratory and injunctive relief to remove and restrain obstruction of an easement for road right of way over the South 25 feet of the North 235 feet of the West 240 feet of Tract 12 in Block 3 of the subdivision of Section 31, Township 50 South, Range 42 East, according to the Plat thereof recorded in Plat Book 2, page 32, of the Public Records of Dade County, Florida; less the West 40 feet thereof; said lands lying, situate and being in Broward County, Florida; and for damages.

      . Procacci v. Zacco, 324 So.2d 180 (Fla. 4th DCA 1975).

      . Count one, paragraph 10, alleges:
      The filing of the attached Lis Pendens, together with the subsequent filing of the aforementioned lawsuit, constituted a willful, malicious, and intentional disparagement and slander of Plaintiffs’ title to the subject property.
      Count two, paragraph 12, alleges:
      Thereafter, the Defendants intentionally, willfully, and wrongfully, interfered with Plaintiffs’ contractual rights existing under this Agreement by filing the aforedescribed Notice of Lis Pendens, and resulting lawsuit against Plaintiffs’ property, which was the subject matter of the agreement.

      . See Rule 9.130(a)(3)(C)(iv).

      . W. Prosser, Law of Torts 917 (4th ed. 1971); Wham, Disparagement of Property, 21 Ill.L. Rev. 26 (1926); Comment, The Law of Commercial Disparagement; Business Defamation’s Impotent Ally, 63 Yale L.J. 65, 69-74 (1953).

      . See footnote 3, supra.


author: ORFINGER, Judge.

text:
    Helen Sapp HANCOCK, Appellant, v. STATE of Florida, Appellee.
    No. 80-807.
    District Court of Appeal of Florida, Fifth District.
    June 10, 1981.
    Rehearing Denied Sept. 2, 1981.
    J. Russell Hornsby, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

We dismiss the appeal because a verdict of guilty is not appealable. Smith v. State, 395 So.2d 575 (Fla. 5th DCA 1981) [1981 FLW 564]. The notice of appeal is from the verdict and clearly states that there has been no adjudication of guilt. Although an adjudication and sentence subsequently appear in the record, there has been no appeal from either. Fla.R.App.P. 9.140(b)(1) and § 924.06, Fla.Stat. (1979).

Appeal DISMISSED.

SHARP and COWART, JJ., concur.