author: ADKINS, Justice.

text:
    STATE of Florida, Appellant, v. J.R.M., a child, Appellee.
    No. 56402.
    Supreme Court of Florida.
    Oct. 2, 1980.

      Jim Smith, Atty. Gen., and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellee.
   ADKINS, Justice.

This cause is before us on direct appeal from an order of the Twelfth Judicial Circuit Court in and for Manatee County, directly passing on the constitutionality of section 39.112, Florida Statutes (Supp.1978). We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

On January 16, 1979, the juvenile court ordered that J.R.M., a 16 — year-old boy, be detained pending hearing on charges of resisting arrest with violence. Subsequently, the state filed amended petitions for delinquency alleging that J.R.M. had escaped twice from detention in violation of section 39.112, Florida Statutes (Supp.1978). The trial court entered an order dismissing the petitions on the ground that the statute was enacted in violation of article III, section 6 of the Florida Constitution. We reverse.

Chapter 78-414, section 17, Laws of Florida, created section 39.112, Florida Statutes (Supp.1978), as follows:

Escapes from a juvenile facility-An escape from any training school, or secure detention facility maintained for the treatment, rehabilitation, or detention of children who are alleged or found to have committed delinquent acts or violation of law constitutes escape within the intent and meaning of s. 944.40 and is a felony in the third degree.

Section 944.40, Florida Statutes (1977), provides:

Escapes; penalty-Any prisoner confined in any prison, jail, road camp, or other penal institution, state, county, or municipal, working upon the public roads, or being transported to or from a place of confinement who escapes or attempts to escape from such confinement shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The punishment of imprisonment imposed under this section shall run consecutive to any former sentence imposed upon any prisoner.

The trial court accepted the defense contention that chapter 78-414, section 17, Laws of Florida, attempted to amend section 994.40, Florida Statutes (1977), in violation of article III, section 6, of the Florida Constitution, which provides inter alia:

No law shall be revised or amended by reference to its title only. Laws to revise or amend shall set out in full the revised or amended act, section, subsection or paragraph of a subsection.

Our initial inquiry is whether chapter 78-414, section 17, amends section 944.40 or whether it merely refers to and incorporates section 944.40. If chapter 78-414, section 17, is a reference statute or if it only impliedly amends section 944.40, then the constitutional provision quoted above is inapplicable. Auto-Owners Insurance Co. v. Hillsborough County Aviation Authority, 153 So.2d 722 (Fla.1963); State ex rel. Turner v. Hocker, 36 Fla. 358, 18 So. 767 (1895). Reference statutes are those:

which refer to and by the reference wholly or partially adopt pre-existing statutes.
In the construction of such statutes the statute referred to is treated and considered as if it were incorporated into and formed part of that which makes the reference ... The two statutes exist as separate, distinct, legislative enactments, each having its appointed sphere of action, and the alteration, change, or repeal of the one does not operate upon or affect the other.

Van Pelt v. Hilliard, 75 Fla. 792, 808-09, 78 So. 693, 698 (1918) (citations omitted). The statute under consideration in Van Pelt provided that no club or other association could serve or sell liquor unless done “in compliance with the provisions of an Act of the Legislature of Florida, approved May 5, 1915, and entitled ‘An Act to regulate the sale or furnishing of intoxicating liquors, wines or beer,’ etc.” Id. at 808, 78 So. at 698. The Court held this statute did not violate the constitutional prohibition against amendment by reference to title only. Similarly, chapter 78-414, section 17, may be read as prohibiting from juvenile facilities escapes such as those regulated in section 944.40, Florida Statutes (1977).

The defense argues that this is more than a reference statute because the effect of chapter 78-414, section 17 is to broaden the scope of section 944.40 to include persons detained at juvenile facilities. Prior to the enactment of chapter 78-414, § 17, escape from a juvenile detention facility did not constitute a violation of section 944.40. Prince v. State, 360 So.2d 1161 (Fla. 4th DCA 1978); In the Interest of F.G., 349 So.2d 727 (Fla. 4th DCA 1977). Arguably, therefore, the legislature was trying to amend section 944.40 to include juvenile detention center escapes when it enacted chapter 78 — 414, section 17. However, the new provision was not expressly designated as an amendment to the general escape statute. On the contrary, the new provision was placed squarely within the statutory provisions relating to juveniles, i. e., chapter 39, Florida Statutes (1977). It is well established that amendment by implication is not favored and will not be upheld in doubtful cases. Miami Water Works Local No. 654 v. City of Miami, 157 Fla. 445, 26 So.2d 194 (1946). Amendment by implication occurs when it appears the latter statute was intended as a revision of the subject matter of the former or when there is an irreconcilable repugnancy between the two, so that there is no way the former rule can operate without conflicting with the latter. Id.; see North American Mortgage Investors v. Cape San Blas, 378 So.2d 287 (Fla.1979); Indian River Shores v. Richey, 348 So.2d 1 (Fla.1977) (repeal by implication). Since it is clear that chapter 78-414, section 17, was not an attempt to revise the subject matter of the general escape statute, the only potential ground for finding an implied amendment is that of irreconcilable conflict between the two statutes. We find no such conflict or repugnancy. Rather, the statutes complement each other and may be read in pari materia.

Since we find that chapter 78-414, section 17, neither expressly nor impliedly amends section 944.40, the provisions of article III, section 6, are simply inapplicable. It is therefore unnecessary to discuss the tests used to determine whether an amend-atory enactment meets the constitutional standard. See Jackson v. Consolidated Government of City of Jacksonville, 225 So.2d 497 (Fla.1969); Lipe v. City of Miami, 141 So.2d 738 (Fla.1962).

The order of the trial court dismissing the petition is reversed and the cause is remanded for further proceedings consistent with this opinion.

It is so ordered.

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


source: Caselaw Access Project

author: OVERTON, Justice.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Debra M. ADDLEMAN, Appellee. STATE of Florida, Appellant, v. Mario GERACA, Appellee.
    Nos. 56865, 57377.
    Supreme Court of Florida.
    Oct. 2, 1980.
    Jim Smith, Atty. Gen., and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellant.
    Alan H. Schreiber, Public Defender, Pompano Beach, and Jerry B. Smith, Asst. Public Defender, Ft. Lauderdale, for appellee.
   OVERTON, Justice.

This cause arises from an order of the Broward County Court holding section 318.-15, Florida Statutes (1977), concerning driver license suspension, to be unconstitutional. We have jurisdiction and reverse. Art. V, § 3(b)(1), Fla.Const. We find the statute meets constitutional due process standards and is valid.

Appellees were both charged under section 322.34, Florida Statutes (1977), with the criminal traffic violation of driving while their licenses were suspended. The suspensions, which resulted from appellees’ failure to appear at their respective traffic violation hearings, arose under section 318.-15, which provides as follows:

Failure to comply with the civil penalty; to appear; to post bond; penalty.-If a person fails to post bond and to appear at the hearing without having paid the civil penalty, fails to attend driver improvement school if imposed, or fails to pay the civil penalty imposed, his driver’s license and privilege shall be deemed suspended. The suspension shall be effective on the date the person fails to appear at the hearing as set forth above or fails to comply with the civil penalty imposed.

Appellees contended, and the trial court held, that section 318.15 is unconstitutional because there is no provision requiring a separate hearing after notice on the issue of the traffic violator’s good cause for his or her nonappearance at a hearing for the traffic violation. The trial court held that the “statute is constitutionally infirm, as it does not make provision for notice and opportunity for hearing, on the crucial issue of justification or good cause for non-appearance at arraignment or final hearing,” citing Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977), and Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). We disagree.

Under our motor vehicle statutory scheme, a motorist receiving a citation must either pay the fine or be present at the hearing concerning the traffic citation. If the traffic violator fails to pay the penalty or, in the alternative, to appear before the designated court, his driver’s license is suspended effective on the date the person fails to appear at the hearing in accordance with section 318.15. The uniform traffic citation, which the motorist must acknowledge upon receipt, clearly states these two alternatives and, in addition, has space for the arresting officer to insert the specific date, time, court, and location of the hearing. In some instances the citation states that the motorist must appear at a specific location at any time during a stated period of days. We see no constitutional requirement that the state conduct a hearing subsequent to the failure to appear before suspending the violator’s license.

The trial court found that in some instances the citation states only that the hearing is “to be set,” with postal notice of the time of the hearing to be sent subsequently to the traffic violator. We recognize that this type of notice raises the issue addressed by a three-judge United States District Court in Pollard v. Panora, 411 F.Supp. 580 (D.Mass.1976). In Pollard the district court declared a license suspension statute unconstitutional for failure to provide a pre-suspension hearing, where all hearing notices on the traffic violation were conveyed by standard postal delivery. We realize that under these circumstances the state has the burden to establish that the notice of the hearing was sent to the address on the citation. This burden may be satisfied by the use of certified mail, which would ensure delivery to the proper person. Because of the problems inherent in a postal notice scheme, we suggest that the procedure of stating on the citation that the hearing time is “to be set” be avoided. From the record submitted to this court, postal notice does not appear to have been an issue in either of the instant cases.

The trial court further found that the possibility of clerical error might constitute a deprivation of due process. We again disagree, and find that the fact that there may be an opportunity for clerical error does not, of itself, invalidate a statute or constitutionally require another type of hearing. We note that the United States Supreme court dismissed the possibility that clerical error might constitute a deprivation of due process in Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979), and Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977).

We find section 318.15, Florida Statutes, is constitutional and remand these causes to the county court for further proceedings consistent with the views expressed in this opinion.

It is so ordered.

ADKINS, BOYD, ENGLAND, ALDERMAN and McDONALD, JJ., concur.

SUNDBERG, C. J., dissents.


text:
    Margaret McKENNEY, Appellant, v. STATE of Florida, Appellee.
    No. 57375.
    Supreme Court of Florida.
    Oct. 2, 1980.
    Dan R. Warren of Judge & Warren, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Daytona Beach, for appellee.
   ADKINS, Justice.

By direct appeal, Margaret McKenney attacks the validity of her conviction of violating Florida’s assignation statute and her sentence as a habitual misdemeanant. §§ 796.07(3)(a) & 775.084, Fla.Stat. (1977). The trial court directly passed upon and upheld the constitutionality of these statutes. It also denied a motion to suppress certain live witness testimony crucial to the conviction. We have jurisdiction. Art. V, . § 3(b)(1), Fla.Const. (1972). We refer to the parties as they appeared in the trial court.

Sometime around ten or eleven o’clock in the evening on December 23, 1978, two police officers observed the defendant and two other women standing in front of a convenience store. From past experience, the officers were aware of the defendant’s status as a “known prostitute” in the area. She made a hitchhiking motion and flagged down a car. She and the sole occupant of the car, the male driver, then drove some two hundred yards to her house where they both went inside for about twenty minutes. When the man left the house, an officer approached him and asked for identification. As a result of their conversation the man, Mr. Whitley, agreed to testify that the defendant had engaged in oral sex with him for $20.00. At the same time Mr. Whitley was being questioned, the other officer went to the house to arrest the defendant.

The defendant was tried, convicted, and adjudicated guilty of assignation on May 24, 1979. At sentencing, on July 17, 1979, the trial court found the defendant was a habitual misdemeanant. In so doing the court relied on a prior conviction for prostitution obtained in a proceeding in which the defendant had not been represented by counsel.

The defendant first contends that the assignation statute is unconstitutionally vague and overbroad. U.S. Const., amend. I; art. I, § 9, Fla.Const. The statute makes it illegal:

To offer to commit, or to commit, or to engage in, prostitution, lewdness, or assignation.

§ 796.07(3)(a), Fla.Stat. (1977). There is also a legislative definition:

The term “assignation” shall be construed to include the making of any appointment or engagement for prostitution or lewdness or any act in furtherance of such appointment or engagement.

§ 796.07(l)(c), Fla.Stat. (1977). We have recently upheld other portions of section 796.07 against similar constitutional challenges. See, e. g., Whitted v. State, 362 So.2d 668 (Fla.1978); Tatzel v. State, 356 So.2d 787 (Fla.1978); and Bell v. State, 289 So.2d 388 (Fla.1973). We now add the crime of assignation to that list of constitutionally firm prohibitions.

A vagueness and overbreadth challenge merits a three-fold analysis. First, the statute cannot infringe upon constitutionally protected First Amendment freedoms of expression and association. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). “Assignation,” as it is defined and understood in common usage, means, inter alia:

[A]n appointment of time and place for a meeting esp. [sic] for illicit sexual relations ...

Websters Third New International Dictionary, 132 (1976). Even speech or expressive behavior which at first blush seems fully protected may be proscribed where it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969). The instant statutory prohibition is limited to conduct which produces lawless action, i. e. prostitution or lewdness. § 796.07(3)(a), Fla.Stat. (1977). It is therefore free of any infirmity with regard to activities protected by the First Amendment.

Our second inquiry is whether the statute is phrased so that persons of common intelligence have adequate notice as to the nature of the proscribed conduct. Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926); Sandstrom v. Leader, 370 So.2d 3 (Fla.1979). A person whose conduct clearly falls within the statute’s prohibition cannot reasonably be said to have been denied adequate notice, however. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). We find that the defendant in this case lacks standing to complain of lack of notice since the facts adduced at trial reveal conduct which manifestly falls within the ambit of the assignation statute. Mr. Whitley testified: “I had seen her [the defendant] and I drove up and we just agreed to do what we did” (referring to the subsequent sexual act).

Lastly, a statute may be worded so loosely that it leads to arbitrary and selective enforcement by vesting undue discretion as to its scope in those who prosecute. Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). There is no evidence of arbitrary or capricious enforcement in the record of this case. Absent such a showing, we find that the language describing the crime of assignation is precise enough to guide law enforcement officials in determining what conduct constitutes prohibited conduct. We hold that the assignation statute is constitutional. See Summers v. Anchorage, 589 P.2d 863 (Alaska 1979).

The defendant’s second major contention is that Mr. Whitley’s testimony should not have been used against her. The trial court found that the initial detention of Whitley was illegal and that the detective’s offer of “either be a witness or be a defendant” rendered Whitley’s statements involuntary and coerced. The defendant argues that these statements and Whitley’s live testimony were incurably and directly tainted by the illegality and therefore subject to exclusion as “fruit of the poisonous tree.” U.S. v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978); Wong Sun v. U. S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); U. S. v. Cruz, 581 F.2d 535 (5th Cir. 1978). The trial court properly rejected this argument on the ground that the defendant did not have standing to object to violations of Whitley’s constitutional rights. Alderman v. U. S., 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); U. S. v. Fredericks, 586 F.2d 470 (5th Cir. 1978); Winchell v. State, 362 So.2d 992 (Fla. 3d DCA 1978). In U. S. v. Fredricks the testimony of Ehrlich, an unindicted cocon-spirator, was obtained in violation of her Fourth, Fifth, and Sixth Amendment rights. The Fifth Circuit noted:

But whether or not Ehrlich’s rights were infringed by her arrest, her interrogation, or the compulsion of her testimony is immaterial to this appeal. For the simple fact of the matter is that appellants’ rights were not violated by any of those governmental acts and therefore suppression of Ehrlich’s testimony is not required to protect or vindicate their rights.

586 F.2d at 480. As in Fredericks, our holding that the defendant lacks standing to assert a probable violation of. Whitley’s constitutional rights does “not sanction gross police misconduct against third parties in the overly zealous pursuit of criminal convictions.” 586 F.2d at 481. The questionable police tactic of offering a person the Hobson’s choice of being arrested or testifying against another does not fall in this instance to the level of

third-degree physical or psychological coercion that might prompt us to disregard altogether the societal interest in law enforcement by excluding the highly probative testimony of a nondefendant.

Id. (footnote omitted). This situation is not comparable to those involving a valid offer of immunity from a state attorney or other authorized person. § 914.04- 05, Fla.Stat. (1977).

Inasmuch as we find defendant’s conviction valid, we must now turn to her sentence as a habitual misdemeanant. The United States Supreme Court has recently ruled that an uncounseled misdemeanor conviction cannot be used under an enhanced penalty statute to convert a subsequent misdemeanor into a felony with a prison term. In Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), the Court relied on two prior decisions which held that an uncounseled conviction could not support a deprivation of liberty. Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979) and Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). The Court did not hold that all uncounseled convictions were per se invalid for purposes of imposing a sentence of imprisonment, only those which could not themselves have supported incarceration. 446 U.S. at 224 — 226, 100 S.Ct. at 1587, (Marshall, J., concurring specially). Baldasar’s prior conviction occurred after a proceeding in which he was not only unrepresented by counsel, but “did not formally waive any right to counsel.” Id. at 223, 100 S.Ct. at 1586. In the prior conviction in the case at bar, the defendant declined the judge’s offer of counsel and signed a written waiver of her right to counsel. The trial court at the instant sentencing proceeding found that the prior conviction was accompanied by an intelligent, knowing, and voluntary waiver.

The conviction and sentence are affirmed.

It is so ordered.

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

ENGLAND, J., concurs in result only.


author: PER CURIAM.

text:
    Calvin Cooley JONES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 57511.
    Supreme Court of Florida.
    Oct. 2, 1980.
    Joseph D. Lorenz of Lorenz, Lungstrum & Heflin, Fort Walton Beach, for appellant.
    Jim Smith, Atty. Gen. and Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This cause is before us on direct appeal from the circuit court in and for Okaloosa County because the trial court upheld the constitutionality of section 775.084, Florida Statutes (1977). The trial court’s ruling upholding the constitutionality of section 775.084 is consistent with our holding in Eutsey v. State, 383 So.2d 219 (Fla.1980). We hold that the constitutional issue is now legally frivolous and therefore transfer the case to the District Court of Appeal, First District, for consideration of the remaining points on appeal.

It is so ordered.

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


author: PER CURIAM. BOYD, Justice,

text:
    In re RULE 9.331, DETERMINATION OF CAUSES BY A DISTRICT COURT OF APPEAL EN BANC, FLORIDA RULES OF APPELLATE PROCEDURE.
    No. 50409-A.
    Supreme Court of Florida.
    Oct. 2, 1980.
   PER CURIAM.

On December 6,1979, we adopted in final form Rule 9.331, Florida Rules of Appellate Procedure, to provide for en banc proceedings in the district courts of appeal beginning on January 1, 1980. In the order of adoption, which appears at 377 So.2d 700 (Fla.1979), we retained jurisdiction of this proceeding to consider amendments to the Rule which might be submitted before February 2, 1980, in light of a then pending constitutional amendment affecting the jurisdiction of the Supreme Court. Only three proposals were submitted for our consideration.

On March 11, the amendment to article V of the Constitution was adopted. We have considered what modifications of Rule 9.331, if any, might now be appropriate. We have been urged by the judges of the district courts of appeal to leave Rule 9.331 in its present form, and to defer any modifications for a period of time adequate to allow the present Rule to be tested in operation. After careful consideration, we are persuaded that this is the most prudent course to follow, and we now close this rule proceeding.

SUNDBERG, C. J., and ADKINS, OVER-TON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.

BOYD, J., dissents with an opinion.

BOYD, Justice,

dissenting.

I dissented from the promulgation of this new rule of appellate procedures when it was first announced on September 20,1979. In Re Rule 9.331, Determination of Causes by a District Court of Appeal En Banc, Florida Rules of Appellate Procedure, 374 So.2d 992, 994 (Fla.1979) (Boyd, J., dissenting). Now that this rulemaking proceeding is being closed, I feel compelled to reiterate my objections and to offer some further observations in light of the recent amendments to article V, section 3(b), Florida Constitution.

As modified and adopted on December 6, 1979, In Re Rule 9.331, Determination of Causes by a District Court of Appeal En Banc, Florida Rules of Appellate Procedure, 377 So.2d 700 (Fla.1979), the new rule provides that any proceeding pending before a district court may be determined en banc if a majority of the judges so order. “En banc hearings and rehearings shall not be ordered unless necessary to maintain uniformity in the court’s decisions.” The rule provides that after a determination is made and a decision issued in a pending case, the court may on its own motion or on motion of a party order the cause to be considered again by the court en banc. A party may move for such only on the ground that it is necessary to maintain uniformity in the court’s decisions. Any judge on the court may request a vote on the motion and if so requested a vote will be taken.

In my earlier dissent I pointed out that article V, section 4(a), provides:

There shall be a district court of appeal serving each appellate district. Each district court of appeal shall consist of at least three judges. Three judges shall consider each case and the concurrence of two shall be necessary to a decision.

This provision should be read in conjunction with section 1 of the judiciary article, which empowers the legislature to create appellate districts by general law. When an appellate district is created by the legislature, section 4(a) requires that the court of appeal serving that district consist of “at least” three judges. This language allows for the district courts to consist of more than three judges, and as we know, each of them now has well in excess of three. But the “at least” language is not repeated in the final sentence of the subsection which provides: “Three judges shall consider each case and the concurrence of two shall be necessary to a decision.” My conclusion upon analyzing this language is the same as it was last September when I said: “Because the constitution specifically provides that three judges shall consider each case heard by the district courts, a different procedure cannot be authorized by the promulgation of a court rule.” 374 So.2d at 995.

I found a further constitutional infirmity in the rationale given for the rule, that it would allow for the harmonizing of decisions in conflict within the several district courts of appeal. I pointed out that deci-sional conflict among cases decided by a single district court of appeal had, since January 1, 1973, given rise to certiorari jurisdiction in the supreme court. I concluded that, by virtue of the 1972 constitutional amendment, “the power to harmonize conflicts, even from within a single district, was placed squarely with the supreme court.” 374 So.2d at 995.

Now that the people have again amended article V, section 3(b), conflict of decisions within a single district no longer vests jurisdiction in the supreme court. It might be suggested that the recent constitutional amendment has removed the jurisdictional bar to the resolution of intradistrict conflicts by the district courts themselves. The people, however, have amended only section 3 of the judiciary article and have not changed a word of section 4.

Rule 9.331 allows the losing party in a district court of appeal decision to petition to have the case reconsidered by all the judges in regular active service on the court. Any judge on the court may require a vote to be taken on the request for a rehearing en banc. This rule in effect provides for a second appeal to a court different from the panel originally considering the case. The panel of three that considers each case is constitutionally recognized by section 4(a). The en banc panel that can overrule that decision is a separate appellate tribunal not provided for by the constitution. This court does not have the authority to create new courts. Art. V, § 1, Fla. Const. The decisions of the new appellate tribunals the rule purports to create will not have the force of law because one of a litigant’s most essential due process rights is to have his cause decided by a legally constituted court.

It is a matter of public record that from the beginning I have strongly opposed the en banc rule for the reasons stated in this dissenting opinion. I expressed that objection before the 1980 election adopting an amendment to article V, section 3 of the Florida Constitution, narrowing the jurisdiction of the Supreme Court of Florida. Although certain other persons have expressed the view that the en banc rule would serve to eliminate conflicts within each district court of appeal, it has always been my view that, regardless of what good might come from the rule, it simply conflicts with the language of the Florida Constitution. I strongly supported the 1980 revision to article V, section 3, and I did not consider that my support of the amendment could be construed in any way as favoring the en banc rule.

I would withdraw this rule and take the appropriate steps toward having it submitted to the voters as a constitutional amendment.


author: ROBERT P. SMITH, Jr., Judge.

text:
    MIAMI-DADE WATER & SEWER AUTHORITY, Appellant, v. Sergio CORMIO, Appellee. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Appellant, v. Dawn ROLLINS, Appellee.
    Nos. QQ-421, RR-83.
    District Court of Appeal of Florida, First District.
    Decision Dec. 12, 1979.
    Order Dec. 13, 1979.
    Memorandum Jan. 23, 1980.
    Mary Ann Stiles, Tallahassee, for Associated Industries of Florida.
    Steven P. Kronenberg, Pyszka, Kessler & Adams, Miami, amici curiae supporting the Motion to Dismiss.
    John F. McMath, Miami, for appellants Miami Dade and Old Republic Ins. Co.
    George W. Chesrow, Walton, Lantaff, Schroeder & Carson, and Herman J. Russo-manno, Miami, for appellant Southern Bell.
    Fletcher N. Baldwin, Jr., University of Florida, Gainesville, and Jerold Feuer, Freed & Feuer, Miami, for appellees Cormio and Rollins.
    Dan F. Turnbull, Jr., Tallahassee, for Florida Department of Labor and Employment Security.
    Before MILLS, C. J., and ROBERT P. SMITH, Jr. and SHIVERS, JJ.
   DECISION

Judge MILLS: Gentlemen, the Court has arrived at its ruling or decision in these cases, and at this time each Judge will individually give you his ruling and, briefly, the reasons.

I would deny the appellees’ motions to dismiss on the ground this Court lacks jurisdiction because section 46.1 is unconstitutional. I would hold that section 46.1 is constitutional.

It is my opinion that this Court has jurisdiction under article V, section 4(b)(2) which provides that district courts have power of direct review of administrative actions as prescribed by general law. It is my opinion that this is a grant of power and not a limitation.

It is my opinion that section 46.1, chapter 79-40, Laws of Florida, does not violate the territorial jurisdictional requirements of article V, that this Court would merely be reviewing administrative agency action of an agency headquartered in Leon County, which is within the First District Court of Appeal District.

It is further my opinion that section 46.1 is a general law rather than a special law. It has to do with workers compensation appeals, subjects all parties to the same rules, all persons are within the same class and throughout the state are treated the same. The geographic boundaries of the First District Court of Appeal set forth in chapter 35 have not been changed by this chapter.

It is my opinion that the legislature has authority to implement article v, section 4, and this is all that section 46.1 does.

I do not feel that the equal protection provisions of the state and federal constitutions have been violated. I do not feel that there has been any change in the voting rights, that the citizens of each district are still entitled to vote for the Judges in those districts.

Lastly, it is my opinion that there are compelling and also reasonable and practical reasons for this legislation.

I therefore would deny the motions to dismiss and would hold section 46.1 constitutional.

Judge SMITH: I agree with what Judge Mills has said. I would not emphasize quite as much as he, perhaps, the notion that this is a review of an order of an agency headquartered in Tallahassee. I recognize in the terms of the workers compensation law the order is entered by the deputy commissioner; and although it must be filed in Tallahassee, it’s served by the commissioner on the parties from wherever it is that the order is entered; and I think it might be straining a point to insist that that is rendered in any kind of jurisdictional sense in Tallahassee. But nevertheless, there is a geographical nexus between the administration of the workers compensation law and Tallahassee.

The more important thing that appeals to me is that I believe the language in article V, section 4(b)(2), “district courts of appeal shall have the power of direct review of administrative action as prescribed by general law,” very succinctly leaves to the legislature the choice, perhaps unwisely, perhaps wisely, but nevertheless leaves to the legislature the choice of how administrative action shall be reviewed in the article V court system.

In contrast to the very explicit relationship between district courts of appeal and their geographic districts, representing in the aggregate the combined jurisdiction geographically of the courts, the article V courts that are to be reviewed in each district court, there is no parallel with the section 4(b)(2) review of administrative action.

That is to say, it would be impossible for the legislature to say that the Dade County Circuit Court would be reviewed in its judgment by the District Court of Appeal, First District, because the Circuit Court of Dade County is a constitutional court with a geographic presence and identity of its own, and the jurisdiction of the Third District Court of Appeal is related to that jurisdiction of the circuit court, not so, administrative agencies.

As far as I can tell, the constitution is unaware, is unconscious, of how and where workers compensation claims are decided. In fact, it’s unaware that there is such a thing as workers compensation claims, and so, has no bent or bias, or bent towards geographic identity of the place where the decision is made or the place where the claimant lives or the place where the injury was suffered or the place where the contract of employment was entered into, or any of those indicia of convenience which may be useful in assigning the place where the hearing is held or the place where the order is entered; but it is of no consequence, in my opinion, under article V pertaining to the jurisdiction of district courts of appeal. District courts of appeal have all writ power, which extends by statute beyond the jurisdictional limits.

There is this one aspect of article V, section 4, that perhaps may seem an impediment to this view, and that is that our Marshal, under section 4, is entitled and empowered to execute the process of our court only throughout the territorial jurisdiction of the court, as in contrast to throughout the state of Florida. Originally, the language permitted the Marshal to exercise the process throughout the state, but in 1972 it was confined to the territorial jurisdiction of the court.

And I believe if the legislature had not provided that writs of attachment and writs of execution and writs of sequestration and writs of garnishment could be effective beyond, in certain circumstances, the limits of the court, territorial limits, returnable in various ways béfore other courts, there may be some question as to our power to effectuate our judgment in cases of this sort. But I believe that since the legislature has provided that, there is a means and it’s a means that is constitutionally available to us.

I don’t find any diminution of anyone’s right to vote.

As I understand the principles that were cited to us this morning, where it’s not prohibited by the constitution, the legislature may enlarge the jurisdiction of a court unless that enlargement comes at the expense of another court exercising constitutional powers.

The jurisdiction of this court has been enlarged by this — there’s no doubt about it — but no other court suffers diminution, in my opinion. No other district court of appeal had jurisdiction of workers compensation appeals prior to the effective date of this act, and they don’t have it now. They haven’t lost anything of their constitutional powers by reason of the expansion of this court’s jurisdiction.

It was suggested that the Supreme Court of Florida has had a diminution of its jurisdiction, previously existing. I think that is very problematic because that jurisdiction was limited certiorari review of Industrial Relations Commission orders, in contrast to the more direct review of Industrial Deputy Commissioners’ orders which is now afforded in this court. I don’t believe that review is of such consequence as to constitute a diminution of the Supreme Court’s prior jurisdiction.

The people who voted for, as Judge Mills stated, the judges in the third district will continue to do so. I don’t believe that anyone has a constitutional right to vote on the retention or ouster of judges on the basis that their decisions can affect their lives. We are assigned our voting privileges under article V to territorial jurisdiction, and that is without regard for what effect other district courts of appeal may have in their decisions upon us as residents and voters.

Besides that, recognizing as we do with some — as I do, with some apprehension, that this, indeed, section 4(b)(2), enables the legislature to say that the District Court of Appeals, First District, shall have this review, workers compensation or any other administrative action, and to change it five years from now and to move around jurisdiction within the judicial system, which is potentially very dangerous, I think it’s quite possible to say that the people who by their votes elect senators and representatives now have more power over the article V courts than they previously had.

So in my opinion, the wisdom of this legislation being not within our power to pass on, it’s constitutional.

Judge SHIVERS: I would deny the motion to dismiss.

In my opinion, this statute is capable of an interpretation that would make it unconstitutional. But it is also capable of an interpretation which would lead to its constitutionality. Briefs and arguments have been impressive on both sides.

The law is that there is a presumption of the constitutionality of a statute, which presumption continues until the contrary is proved beyond a reasonable doubt. And when a statute is capable of two interpretations, the law is very clear that we' are required to adopt that interpretation that would lead to its constitutionality.

I would uphold the statute as being constitutional on the grounds that these appeals are reviews of an administrative agency which has its headquarters in Tallahassee, here in Leon County, which is situated within the geographical boundaries of the First District Court of Appeal.

In my opinion, this is a general and not a special law. All workers compensation appeals are subject to the same rules of appeal. All persons within the class throughout the state are treated the same.

I would deny the motion to dismiss.

Judge MILLS: Gentlemen, so that you might know, the Court will enter an order this afternoon, if possible, certainly no later than tomorrow, denying the appellees’ motions, holding that section 46.1 is not unconstitutional, certifying the question to the supreme court as of great public interest, and dispensing with a petition or petitions for rehearing.

So that you might have an explanation as to this latter statement, the Court has spent considerable time reading the briefs, the memoranda briefs, doing its own independent research, and has heard your oral arguments. It feels that you have done a very outstanding job in providing the Court with outstanding arguments and authorities and that we have had the benefit of probably everything that you can do to help us, and we have done everything that we can do to help ourselves.

Therefore, in order to expedite this matter of great public interest, we feel we would be doing the citizens, each of you, and everyone involved the best we could by going ahead and setting the matter up for whatever action is deemed appropriate by you once our order is entered. But it will be entered this afternoon or tomorrow, and you will be furnished with copies in due course.

Do any of you have any questions at this time?

If not, the Court appreciates the time and effort that you have devoted on behalf of your clients and to the Court in your presentations, and the Court will now be in recess.

ORDER

Appellees move the Court to dismiss the above workers’ compensation appeals on the ground the Court does not have jurisdiction because Section 46(1), Chapter 79-40, Laws of Florida, is unconstitutional. The Court has considered briefs and memo-randa briefs and has heard oral arguments of the parties and amicus curiae. The motions to dismiss are denied. We hold that Section 46(1), Chapter 79-40, is constitutional, and this Court has jurisdiction to review the orders of the Judges of Industrial Claims in the above causes.

The Court certifies to the Supreme Court of Florida as a matter of great public interest the following question:

Whether Section 46(1), Chapter 79 — 40, Laws of Florida, providing for review of workers’ compensation orders of Judges of Industrial Claims and Deputy Commissioners by the First District Court of Appeal, effective 1 October 1979, is constitutional?

Petitions for rehearing are dispensed with to expedite the Supreme Court’s consideration of this matter of great public importance and because this Court has given the parties the opportunity to make full and complete written and oral presentations of their contentions which have been considered in their entirety by the Court.

The oral decision of this Court entered in open court and participated in by each Judge of the panel was transcribed by a court reporter. The transcript will be made a part of the court files in these cases. Each Judge reserves the right to supplement his oral decision by subsequent written memorandum.

The stay of action in the above appeals is removed effective the date of this order and all future actions shall comply with the Florida Appellate Procedure Rules.

By Order of the Court dated this 13th day of December, A. D. 1979. Chief Judge E. R. Mills, Jr., Judge Robert P. Smith, Jr., and Judge Douglass B. Shivers.

MEMORANDUM

ROBERT P. SMITH, Jr., Judge.

I hope to state in a more orderly way here the views I expressed from the bench when the court announced its decision, on December 12, 1979, to deny appellees’ motions to dismiss based on the asserted unconstitutionality of Section 46, Chapter 79-40, Florida Laws. The extended argument we heard that day was the endpoint of an accelerated briefing and deliberative process, including a pre-argument conference with counsel on December 4, by which the panel sought to give a considered but prompt judgment of the constitutional issue, so that it might quickly be presented to the Supreme Court. The panel therefore did not delay its order on the pending motions, but entered it without a formal written opinion on December 13, reserving, however, this privilege of a delayed written statement by any individual judge.

Section 46(1) of Chapter 79-40, Laws of Florida amends Chapter 440, Florida Statutes, to direct all appeals from workers’ compensation orders of deputy commissioners, and from orders of judges of industrial claims under the law before amendment, to this court. The legislation sends those appeals here, and it transfers here all pending appeals to the abolished Industrial Relations Commission, irrespective of whether the compensation order was entered or the hearing held in the judicial district which is this court’s territorial jurisdiction, and also without regard for other kinds of geographic logic by which the legislature might have raised these appeals in the district or districts where, say, the employer’s main office is, or where the worker lives, or usually works, or was injured.

Attacking Section 46(1) and contesting our jurisdiction in these cases, appellees say there is a constitutionally insufficient geographic nexus between this court and these claims, or these parties, or these orders. Appellees urge, more particularly, that Article Y prohibits legislation directing compensation appeals here unless this court is the geographically logical choice, from among the five district courts of appeal, in either of two ways: the action of deputy commissioner must have “occurred” within this court’s appellate district, so that the appeal “arises” within our territorial jurisdiction, see Crews v. Town of Bay Harbor Islands, 378 So.2d 1265 (Fla. 1st DCA 1979); or the underlying claim must be located in some way within this court’s appellate district, e. g., by the presence of the worker's residence, the place of injury, or some other and similar situs.

In my opinion appellees’ objections to this legislation are based on venue considerations which are not the subject of any Article V restriction on the legislative power, and which therefore are strictly of legislative concern.

From the principle that the Florida Constitution is a limitation of the legislative power, not a grant of it, the Supreme Court has derived this view of legislation enlarging the jurisdiction of a certain court or courts:

While constitutional jurisdiction cannot be restricted or taken away, it can be enlarged by the Legislature in all cases where such enlargement does not result in a diminution of the constitutional jurisdiction of some other court, or where such enlargement is not forbidden by the Constitution.

Harry E. Prettyman, Inc. v. Florida R. E. Comm’n ex rel. Branham, 92 Fla. 515, 525, 109 So. 442, 445 (1926); South Atlantic S. S. Co. of Del. v. Tutson, 139 Fla. 405, 422, 190 So. 675, 682 (1939); Sun Ins. Office, Ltd. v. Clay, 133 So.2d 735, 742 (Fla.1961). But cf. Warren v. State, 174 So.2d 429, 430 (Fla. 1st DCA 1965) (dictum).

The legislative assignment of these appeals to the District Court of Appeal, First District, does not diminish the constitutional jurisdiction of any court. That is so because no court has any constitutionally-vested power to review compensation orders of judges of industrial claims, or deputy commissioners. Previously the Supreme Court had jurisdiction to review orders of the Industrial Relations Commission, through its Article Y, Section 3(b)(3) power to “issue writs of certiorari to commissions established by general law having statewide jurisdiction.” Scholastic Systems, Inc. v. LeLoup, 307 So.2d 166 (Fla.1974); Vargas v. Americana of Bal Harbour, 345 So.2d 1052 (Fla.1976). Abolishing the Industrial Relations Commission did not diminish the Supreme Court’s constitutional powers under Section 3(b)(3); it simply removed a statutory object of those powers. Similarly, to the extent any district court of appeal or circuit court may have had latent or theoretical constitutional power to review orders of judges of industrial claims by extraordinary writ, that power remains, though it will be unexercised when an ordinary statutory remedy is provided. See State ex rel. Dept. of General Serv. v. Willis, 344 So.2d 580, 590 (Fla. 1st DCA 1977):

It is not that the power of circuit courts has been lessened, nor that their historic writs have been surrendered. Rather the occasions for their intervention have lessened.

See also State ex rel. Landis v. Simmons, 104 Fla. 487, 140 So. 187 (1932), prohibiting the Circuit Court of Duval County from entertaining constitutional certiorari jurisdiction to review administrative action which occurred in Duval County but which was by statute reviewable only in the Circuit Court of Palm Beach County.

At oral argument appellees suggested that this act diminishes the Supreme Court’s constitutional jurisdiction by compromising its power to remedy direct conflicts in decisions by district courts of appeal. Article V, Section 3(b)(3). If as ap-pellees suppose the assignment of all workers’ compensation appeals to this court will tend to reduce direct decisional conflicts for the Supreme Court to resolve, that diminution is not of the Supreme Court’s conflict jurisdiction but only of its caseload. An abundance of district court decisional conflicts is neither a constitutional virtue nor a required condition for the full exercise of the Supreme Court’s powers.

So it appears this legislation does not diminish any other court’s constitutional jurisdiction, as distinguished from statutory jurisdiction which other courts have exercised from time to time, under various statutes then increasing their jurisdiction even as this statute now increases ours. Is the enlargement of this court’s jurisdiction otherwise “forbidden by the Constitution”, as envisioned by Prettyman, Tutson, and Sun, cited above? Certainly the Constitution does not expressly forbid what the legislature has done. Nor, I am persuaded, is there any forbidding by necessary implication. Article Y, Section 4(b)(2) comes closest to describing the legislature’s power of assigning workers’ compensation appeals to this court exclusively.

District courts of appeal shall have the power of direct review of administrative action, as prescribed by general law.

I would have supposed that workers’ compensation orders of a judge of industrial claims or a deputy commissioner — those highly qualified officers, however denominated, who administer Chapter 440 — constitute “administrative action” within the meaning of Section 4(b)(2), and within the meaning, too, of identical expressions of legislative power touching the jurisdiction of the Supreme Court, Section 3(b)(7), and circuit courts, Section 5(b). But the Supreme Court has for various purposes characterized the compensation orders of the Industrial Relations Commission, and those of judges of industrial claims, too, as “quasi-judicial”, not administrative, indeed “more judicial than quasi-judicial”. LeLoup, supra, 307 So.2d at 171; Hughes v. Public Fin. Serv., Inc., 319 So.2d 18 (Fla.1975); In re Workmen’s Compensation Rules of Procedure, 343 So.2d 1273 (Fla.1977). See also Myers v. Hawkins, 362 So.2d 926, 931 n. 15, 932 (Fla.1978). LeLoup specifically held workmen’s compensation orders are not “administrative action” within the meaning of Article V, Section 4(b)(2).

If Chapter 440 orders are not “administrative action” referred to in Section 4(b)(2), concerning review by the district courts of appeal, then certainly those orders are not “administrative action” within the meaning of Sections 3(b)(7) and 5(b), which identically express a legislative power to provide review by the Supreme Court or by the circuit courts. But it does not follow from the Constitution’s silence that the legislature is powerless to provide workers’ compensation appeals to the court or courts of choice, and that circuit or district courts must employ extraordinary constitutional writs in these cases. For we are reminded that Sections 3(b)(7), 4(b)(2), and 5(b), are not grants of power, nor limitations, but “simply an expressed recognition” of legislative power existing because the Constitution does not prohibit it. In re Advisory Opinion to the Governor, supra n. 3, 223 So.2d at 37. If the Constitution’s silence were an impediment to legislation directing workers’ compensation appeals to this court, it would equally be an impediment to legislation directing that appeals “be taken to the district court of appeal in the district where the injury occurred,” as informally recommended to the legislature by the Supreme Court. 53 Fla.Bar Jour. 300 (No. 5 May 1979).

LeLoup thus prevents our regarding Sections 4(b)(2) and 5(b) as expressing legislative power to raise appeals from workers’ compensation orders to the circuit or district courts. Yet those sections of Article Y, and their interpretation in years past, remain highly significant to the present question of whether the legislature, having power (uncontested here) to parcel these appeals among the district courts on some regional basis, may instead select one district court of appeal to review all such orders. If Article V imposes geographic conditions or restrictions on the legislative power to raise appeals from compensation orders to this court, we should expect to find those same conditions and restrictions operating on the legislative power to assign appeals from administrative action under Sections 4(b)(2) and 5(b). Compensation orders and administrative action may be different, as LeLoup held, but they are not different in their susceptibility to legislation assigning them for review to an Article Y court. As will be seen, the legislative experience in assigning administrative action to Article V courts for review belies the notion that Article V imposes territorial conditions or restrictions on the legislature’s power so to assign compensation orders.

As stated at the outset, appellees conceive that Article V forbids legislation assigning workers’ compensation appeals to a district court or courts except by geographic logic which either (a) assigns appeals to the court of the appellate district where the action to be reviewed “occurred”, whence the appeal “arises”; or (b) assigns appeals to the court of the appellate district where the claimant lives, or worked, or was injured, or where the employer’s business is, or such.

There is no doubting that the district courts of appeal were created within territorial jurisdictions and that geographic limitations are central to their character. Article V, Section 1, requires that the legislature “divide the state into appellate court districts and judicial circuits following county lines.” Section 4(a) provides for a district court of appeal “serving each appellate district”. No person is eligible to be a judge of a district court of appeal “unless he . resides in the territorial jurisdiction of his court.” Section 8. Judges of those courts are retained in office, or not, by “qualified electors voting within the territorial jurisdiction of the court . . . .” Section 10. Most significantly for present purposes, the jurisdiction of each district court of appeal to hear appeals from other Article V courts is limited territorially to trial courts headquartered in counties and circuits within the appellate district established by law. Section 4(b)(1).

The territorial limitation on this court’s appellate jurisdiction does not prevent legislative assignment to this court of review powers over administrative action taken beyond the district. Section 4(b)(2) contains no express limitation to that effect, unlike Section 8, describing who may be a judge of the court, and Section 10, describing who may vote in retention elections. There is no more reason to imply such a limitation in Section 4(b)(2) than there is to imply that limitation in the district court’s power to issue the extraordinary writ of certiorari pursuant to Section 4(b)(3). As a matter of constitutional jurisdiction, a court’s writ of certiorari reaches an administrative agency wherever in the state it is found, irrespective of territorial limits on the court’s appellate jurisdiction; and only because of statutory or common law venue policies, not for constitutional reasons, does a district court of appeal confine its exercise of cer-tiorari jurisdiction to cases in which it is territorially logical in some way for that court, rather than a sister court, to act. Star Employment Service, Inc. v. Florida Indust. Comm’n, 122 So.2d 174 (Fla.1960).

If the Constitution prohibited district court review of administrative action except in the district where that action “occurred”, whence the appeal “arose”, the Supreme Court would have held in Star that the District Court of Appeal, First District, alone may review orders of the Industrial Commission, headquartered at Tallahassee, whence the petition for certiorari arose. But the Court did not so hold; rather the Court found the matter of choosing an appropriate court of review is controlled by statutes, or by the agency’s convenience, or by the parties’ choice, and so remanded the case to the District Court of Appeal, Third District.

The territorial logic which appellees would spread across the jurisdictional section, Article V, Section 4, is expressed there only in Section 4(b)(1), governing jurisdiction of appeals from other Article V courts, and in part of Section 4(b)(3), making writs of habeas corpus returnable before a circuit judge in the district. There is one obvious reason why this territorial logic is expressed in those subparts of the jurisdiction section, and there only. Article V imposes a unique geographic relationship, rather like that between the strata of a pyramid, among the geographically established Article V courts. The Constitution establishes them in geographic jurisdictions — counties, circuits, districts and state; fixes them in geographic relationship with one another; and directs appeals from judgments, rendered within circuits, to courts established within districts, embracing circuits. Section 4(b)(1) makes this relationship geographically appropriate. On the other hand, administrators of the executive branch are not geographically established by Article V; therefore they are not established in geographic relationships with Article V courts. The same is true of those “more judicial than quasi-judicial” personages, Chapter 440 deputy commissioners. However similar their qualifications and functions may be to those of judicial officers, Article V does not establish those commissioners geographically, as it does its courts; and Article V does not, therefore, establish them in geographic relationships with its courts.

In other words, Article Y, having carefully placed its courts in geographic territories and geographically logical relationships with each other, expects its courts to act where they are placed and in those judicial relationships exclusively. State ex rel Shevin v. Rawls, 290 So.2d 477 (Fla.1974); University Fed. Sav. and Loan Ass’n v. Lightbourn, 201 So.2d 568 (Fla. 4th DCA 1967). But Article V is without knowledge of whether these workers’ compensation awards “occurred” at all, let alone where they occurred, nor how or where appeals from them “arise” to a district court of appeal, if indeed they do. Concerning those matters Article V professes no knowledge and no preference; they are legislative concerns.

For those reasons, then, I think it is not shown as a matter of constitutional law that the territorial character of this court’s organization, and of its jurisdiction to review decisions by Article V trial courts, territorially restricts the legislative power to direct review here of administrative action or this nonadministrative, nonjudicial action under Chapter 440. But if it were to be assumed that a district court of appeal cannot entertain any workers’ compensation appeal that does not “arise” in its district from action “occurring” in its district, see Crews, supra, then what becomes of the legislative alternative, said by appellees to satisfy the demands attributed to Article V, of assigning that review to district courts,' or to circuit courts having the same territorial characteristics on a local scale, on the basis of where a party lives, or works, or was injured?

Appellees offer this alternative reading of the geographic message they find in Article V because they do not wish to condemn, by the inexorable geographic logic found in Section 4(b)(1), numerous statutes which commonly assign administrative review on the basis of considerations other than where the action “occurred”, whence the appeal “arises”. In Willis, discussing the judicial review provisions of the 1974 Administrative Procedure Act, we mentioned by the way several statutes which previously assigned administrative review to the circuit courts, or to district courts of appeal, in a variety of ways. State ex rel. Department of General Serv. v. Willis, supra, 344 So.2d at 588. Section 461.10, Florida Statutes (1973), authorized judicial review of an order suspending a podiatry license “in the circuit court of the circuit in which said license is recorded.” Other statutes authorized judicial review of administrative action in the circuit court of the county where the hospital, if licensed, would be located, Section 395.14, Florida Statutes (1973); in the district court of the district where the disciplined liquor dealer did business, Section 561.29(7)(b); and in the circuit court of the circuit where the disciplined citrus dealer had his main office, Section 601.68. Concentrating administrative review power in the district courts of appeal, the 1974 Administrative Procedure Act did not assign review exclusively to the district court where the administrative action “occurred”, whence the appeal “arose”, which is the Section 4(b)(1) jurisdiction model. Instead, Section 120.68(2) authorizes district court review in the district “where the agency maintains its headquarters” (which may functionally be the same as where agency action “occurred”) or, alternatively, by the “district court of appeal in the appellate district . . . where a party resides.”

If the jurisdictional model of Section 4(b)(1) compels review of these “Dade County orders” by the District Court of Appeal, Third District, legislation directing those appeals here would seem unconstitutional even if the legislature’s stated logic were that a party to the “Dade County order” lives or works within the First District. [That is the rigorous territorial logic of Section 4(b)(1), placing Article V courts in strict geographic relationships with each other; it would be constitutionally outlandish to legislate that the District Court of Appeal, First District, may entertain an appeal from the Circuit Court of Dade County if a Duval County resident is a party.] Thus, if legislation may assign administrative appeals only to the district where the action “occurred”, whence the appeal “arises”, Section 120.68(2) is unconstitutional in permitting review of “foreign” orders in the district of a party’s residence.

But of course appellees and I agree that Section 120.68(2) is not unconstitutional. Nor would it have been unconstitutional for the legislature, on the Supreme Court’s recommendation, to have directed workers’ compensation appeals to the district court in the district “where the injury occurred,” even if that were not where the compensation order was entered. 53 Fla.Bar Jour. 300, supra. That is so, in my opinion, because the choice of a circuit court or district court of appeal forum for review of nonjudicial action is strictly a matter of venue preference, on which Article V is silent and the legislature may speak without restriction. Under appellees’ construct of geographic limitations, however, some special dispensation must be found in Article V for legislation permitting judicial review of a foreign nonjudicial order in the district where some party works, lives, has an office, or was injured. That dispensation is not to be found in Article V, and its absence further persuades me that Article V does not geographically restrict the legislature’s use of the judicial system to review nonjudicial governmental action.

To summarize: In the exercise of our powers to review orders and judgments of Article V courts, by appeal under Section 4(b)(1) and by writs under 4(b)(3), this court must act within a territorial jurisdiction which cannot be expanded or contracted by the Legislature except in accordance with Section 9. Advisory Opinion to the Governor, 374 So.2d 959 (Fla.1979). Nevertheless, the legislature is empowered to add to the general jurisdiction of the district courts, or any of them, duties to review administrative or other nonjudicial governmental action which is not constitutionally assigned to another court. As long as the legislature does not decrease the general jurisdiction granted any court by the Constitution, this or any court may additionally be constituted as “a court of special and limited jurisdiction in some cases” by virtue of “special powers conferred upon it by special statute.” State ex rel. Landis v. Simmons, supra, 104 Fla. at 494-95, 140 So. at 190, quoting Ruling Case Law.

In times past, when assigning judicial review of administrative or nonjudicial action, the legislature frequently enacted a venue logic similar to that of statutes placing suits in the trial court system, Section 49.011, and locating nonjudicial hearings within the state, Section 440.25(3)(b). That venue logic emphasizes the convenience of at least one resident party, which in turn is emphasized by courts in construing or justifying those statutes. E. g., State ex rel. Landis v. Simmons, supra, 104 Fla. at 498, 140 So. at 191; Maryland Cas. Co. v. Marshall, supra fn. 9, 106 So.2d 215. But venue is determined by statutes, not by convenience considered abstractly, and not by the Constitution. The legislature has now determined that other considerations besides party convenience bear on the assignment of appeals from Chapter 440 orders, those presumably including a hope for uniform decisions at less ultimate cost to the public. So even assuming that it is less convenient for distant parties to litigate in this court instead of in the Industrial Relations Commission, other considerations are more than sufficient to sustain this legislation against a due process objection. I find nothing in Article V which requires a different result.

      . As amended by Chapter 79-312, Section 1, and codified as Section 440.271, Florida Statutes (1979), Chapter 79-40, Section 46, provides in part:
      (1) After September 30, 1979, review of any order of a deputy commissioner entered pursuant to chapter 440, Florida Statutes, shall be by appeal to the District Court of Appeal, First District. On October 1, 1979, all appeals pending before the Industrial Relations Commission shall be transferred to the District Court of Appeal, First District, and the court shall act on such appeals.
      (2) The Industrial Relations Commission is hereby abolished as of October 1,1979. . . .

      . In Crews another panel of this court disagreed with our decision in this case, saying there appears to be “no basis for finding such administrative orders to constitute state agency action occurring within this district” and (by the dissent) that “This cause arose outside the territorial jurisdiction of this court . . . (emphasis added.)

        .Monington v. Turner, 251 So.2d 872 (Fla. 1971); State ex rel. Collier Land Inv. Corp. v. Dickinson, 188 So.2d 781 (Fla.1966). When there is no constitutional impediment to certain legislative action, a constitutional provision seeming to grant legislative power will be treated as neither a grant nor a limitation, but as “simply an expressed recognition of a power existing in the legislative department of the state government.” In re Advisory Opinion to the Governor, 223 So.2d 35, 37 (Fla.1969).

      . See Continental Cas. Co. v. Hartford Acc. & Indem. Co., 151 Fla. 742, 10 So.2d 440 (1942); Stansell v. Marlin, 153 Fla. 421, 14 So.2d 892 (1943); City of Miami v. Saco, 156 Fla. 634, 24 So.2d 115 (1946); Vargas, supra, 345 So.2d at 1053.

      . Article V, Section 4(b)(1):
      District courts of appeal shall have jurisdiction to hear appeals . from final judgments or orders of trial courts, including those entered on review of administrative action, not directly appealable to the supreme court or a circuit court
      Former Article V, Section 5(3), before the 1972 amendments, expressed the territorial limitation on appeals even more clearly:
      Appeals from trial courts in each appellate district . . . may be taken to the court of appeal of such district .

      . In Star the Supreme Court held that Industrial Commission orders respecting private employment agency licenses were reviewable by certiorari in the district courts of appeal, pursuant to the Article V certiorari powers of those courts. Then considering which might be “the proper Court of Appeal to consider the case,” 122 So.2d at 177, the Court determined that the problem was one of venue, not jurisdiction, indeed that the choice of courts by state agencies “is more a matter of historic policy for the convenience of the people and the public agency, than it is a fixed rule of law.” The Court held the District Court of Appeal, Third District, was the proper court of certiorari review, not for any reason of constitutional preference, and not because the other district courts lacked constitutional jurisdiction, but because the Industrial Commission, having not asserted its privilege to be heard in the First District, “has itself established the venue by instituting the proceeding in the Third District, and by defending against the requested review in the Court of Appeal . . . having jurisdiction in that area . . . 122 So.2d at 178.

      . In organization circuit courts always had the territorial characteristics which were imposed on the organization of district courts of appeal in 1957. In jurisdiction they also “serve” limited geographic areas, Section 5(a). Section 5(b), as amended in 1972, provides in terms identical to Section 4(b)(2):
      Jurisdiction of the circuit court [sic] shall be uniform throughout the state. They shall have the power of direct review of administrative action prescribed by general law. See also fn. 4, supra.

      . Like the statute before us now, certain of those statutes named a particular circuit court or district court of appeal as the court of review. Section 464.21(6), Florida Statutes (1973), granted jurisdiction to the Circuit Court of Leon County to review disciplinary orders of the Board of Nursing. Section 527.17 granted jurisdiction to the District Court of Appeal, First District, to review Department of Insurance orders pertaining to liquefied petroleum gas. See also Alderman v. Conner, 205 So.2d 25 (Fla. 2d DCA 1967), cert. den., 212 So.2d 866 (Fla.1968), enforcing Section 601.66(4), Florida Statutes (1965), which directed certiorari review of citrus code orders by the “circuit court in and for Polk County.” There is no reason to suppose those statutes particularly offended Article V by calling the court of choice by name, instead of stating facially objective criteria by which only one particular court could be chosen — for example, those like Section 471.28, Florida Statutes (1973), requiring review of engineering license revocations in the circuit court of the circuit where the board’s headquarters is located.

      . The dissent in Crews proposed transferring the appeal to “the appropriate District Court of Appeal,” in that case the Third District. This would seem impossible, there being no legislation granting any court but this one power to review Chapter 440 orders. Contrast Maryland Cas. Co. v. Marshall, 106 So.2d 212 (Fla. 1st DCA 1958), which construed an uncertain statute in the light of Article V’s territorial scheme, and transferred a workmen’s compensation appeal to the Third District. Appellees suggested in argument that, if the statute here is void, the appropriate review forum is the Circuit Court of Dade County, which like the Third District has power to issue writs of certiorari. See Monroe Education Ass'n v. Clerk, etc., 299 So.2d 1, 3 (Fla. 1974).

      . Under Chapter 440, the hearing normally is held in the county where the injury occurred, Section 440.25(3)(b), and that presumably is the place where th,e order is signed before its filing in the Workers’ Compensation Division office in Tallahassee, Section 440.25(3)(c). But these arrangements may be changed by the parties and the Commissioner, and may certainly be changed by the legislature, to separate the place of hearing and order from the place of injury. The constitutionality of the arrangement recommended by the Supreme Court would not depend on the place of injury being the place of the order from which the appeal “arises”.

      . Concerning the territoriality of courts see generally Phillips v. State ex rel. Dorner, 75 Fla. 93, 77 So. 665 (1918) and Chapman v. Reddick, 41 Fla. 120, 25 So. 673 (1899) (circuit courts) and Palm Beach County v. Rose, 337 So.2d 985 (Fla. 4th DCA 1976) (district courts of appeal).


author: PER CURIAM. SHIVERS, Judge,

text:
    Robert Charles GARRETT, Appellant, v. STATE of Florida, Appellee.
    No. NN-191.
    District Court of Appeal of Florida, First District.
    Aug. 15, 1980.
    Rehearing Denied Sept. 24, 1980.
    Michael J. Minerva, Public Defender, and Margaret Good and Louis G. Carres, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED.

ROBERT P. SMITH, Jr. and BOOTH, JJ., concur.

SHIVERS, J., dissents with opinion.

SHIVERS, Judge,

dissenting:

I dissent. Garrett was convicted of robbery and carrying a firearm during the commission of a crime. The heart of his defense was that he was incapable of forming the requisite felonious intent at the time of the offense due to the mixture of alcohol and drugs (marijuana and valium) he had ingested. Members of Garrett’s family testified as to the “stupor” or “catatonic” state Garrett was in shortly after his apprehension. At issue is the refusal of the trial court to admit into evidence the testimony of Dr. Edmund R. Kielman, Chief Medical Examiner for the First Judicial Circuit. The majority holds Dr. Kielman’s testimony was properly excluded because the defense violated discovery rules. I disagree.

The defense initiated pretrial discovery pursuant to Fla.R.Crim.P. 3.220. The State filed a response with Garrett’s codefendant but no copy of the response was served on Garrett. The only discovery was the exchange of witness praecipes. Dr. Kielman was not subpoenaed. Therefore, the State had no notice the defense intended to call Dr. Kielman until the third day of the trial. The trial court refused to permit Dr. Kiel-man to testify after inquiring as to the nature of the doctor’s testimony and the reason his name was not previously disclosed. The trial court did not inquire into other possible methods of curing any prejudice to the prosecution before imposing the extreme sanction of excluding the testimony. The trial court summarily rejected the defense’s suggestion that the trial be recessed to permit the State to depose Dr. Kielman. There was no inquiry as to the length of time it would take the State to locate expert witnesses to rebut Dr. Kiel-man’s testimony. The failure of the trial court to inquire into these matters requires reversal.

Additionally, examination of Dr. Kiel-man’s proffered testimony discloses that he merely testified as to accepted medical facts as to the combined effect that alcohol, marijuana, and valium have on the human body. Dr. Kielman did not testify that in his opinion the defendant was incapable of forming the felonious intent at the time of the offense. Dr. Kielman’s testimony was limited to hypothetical questions. Dr. Kiel-man’s testimony was crucial to the defendant’s case.

I would reverse for a new trial.

      . Bell v. State (Fla.1980) (1980 FLW 114).

      . Richardson v. State, 246 So.2d 771 (Fla.1971); Lavigne v. State, 349 So.2d 178 (Fla. 1st DCA 1977).


text:
    CALDER RACE COURSE, INC., a Florida Corporation, Appellant, v. Dr. Leon G. VAN WERT, Chairman of the Florida Pari-Mutuel Commission; James Lewis, Steve Abramson, Cope Newbern and Billy Vessels, Members of the Florida Pari-Mutuel Commission, Department of Business Regulation of the State of Florida (herein “the Commission”); the Division of Pari-Mutuel Wagering of the Department of Business Regulation (herein “the Division”); and West Flagler Associates, Ltd., Biscayne Kennel Club, Inc., Investment Corporation of South Florida, Inc., and World Jai Alai, Inc., d/b/a Summer Jai Alai (herein “Miami”), Appellees.
    No. WW-443.
    District Court of Appeal of Florida, First District.
    Aug. 27, 1980.

      Wilbur E. Brewton of Taylor, Brion, Buker & Greene, Tallahassee, for appellant.
    Sam Spector of Spector & Tunnicliff, Tallahassee, Stuart W. Patton of Patton, Kan-ner, Segal, Seller, King & Kubit, William P. Cagney, III, Miami, Daniel C. Brown and David M. Maloney, Tallahassee, for appel-lees.
   PER CURIAM.

Time being of the essence, we granted accelerated review of Calder Race Course, Inc.’s appeal from an order of the Florida Pari-Mutuel Commission approving a schedule of operating dates for summer jai alai, including afternoon or matinee performances, for appellees-purchasers of an existing pari-mutuel permit (Miami Beach Kennel Club, Inc.), upon its conversion to a jai alai permit under Chapter 80-88, Laws of Florida (1980).

Appellant contends (1) that the Commission’s order of July 29,1980 awarding matinee performance dates was barred by res judicata because at a prior hearing, on June 27, 1980, a motion for approval of matinee performance dates died for lack of a second, and the application was pronounced “denied” by the Commission’s chairman, although no vote of the Commission was taken; (2) that the permit (Miami Beach Kennel Club, Inc.) had not conducted afternoon or matinee performances “prior to the conversion” to summer jai alai, as required by Chapter 80-88, although it had run matinee performances in 1978; and (3) that the Commission lacked authority to authorize matinees for the summer of 1980 because of its failure to adopt a rule as required by newly enacted Section 550.011(2), Florida Statutes (Chapter 80-57, Laws of Florida (1980)).

After consideration of these and other contentions presented by the parties in their briefs and oral arguments before this court, we conclude that reversible error does not appear, and the order appealed from is affirmed.

ROBERT P. SMITH, Jr., LARRY G. SMITH and SHIVERS, JJ., concur.


author: DOWNEY, Judge. ANSTEAD, Judge,

text:
    Scott William LAWRENCE and Charles Axonowitz, Appellants, v. STATE of Florida, Appellee.
    Nos. 78-1085, 78-1089.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1980.
    Rehearing Denied Nov. 12, 1980.

      J. David Bogenschutz of Varón & Stahl, Hollywood, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann and Charles W. Musgrove, Asst. Attys. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellants were charged in four counts with narcotics offenses. Upon denial of their motion to suppress appellants pleaded nolo contendere to one count, reserving the right to question on appeal the denial of the motion to suppress.

On October 5, 1977, Officer Puleo, a narcotics undercover agent with the Fort Lauderdale Police Department, met with appellant Scott Lawrence at 1901 North East 15th Avenue, Fort Lauderdale, to negotiate for the purchase of a large amount of cocaine and marijuana. That meeting lead to further contacts the following day. On October 6,1977, Puleo received an anonymous phone call directing him to 2429 Cas-tilla Isle, Fort Lauderdale, where he could purchase approximately two pounds of cocaine. After confirming the street directions with Lawrence, Puleo proceeded to the specified address along with Officer Or-tenzo, another undercover agent.

The officers were met in the front of the house by appellant Lawrence and another man named Griffin. The officers were told to go the boat house which was to the rear of the main residence and there they met appellant Chuck Axonowitz. The group was awaiting the arrival of “Mark” who allegedly had the “stuff.” While waiting, Lawrence produced some cocaine from the kitchen area, placed it on the counter top, divided it into lines and passed it around for the group’s personal use. After this diversion, dinner was served, followed by the sharing of marijuana cigarettes. Meanwhile, several other people arrived at the scene, one of whom was Felix Lebel. Shortly, thereafter, Axonowitz left with Le-bel saying he was going to “Mark’s” house to get the cocaine.

At approximately 12:45 a. m., Axonowitz returned and told the officers to come up to the main house. Puleo, Ortenzo, Lawrence, and Axonowitz went into the main bedroom to conduct the transaction. Axonowitz told the officers he was unable to provide them with more than fifteen ounces of cocaine at that time, but that he was certain the remainder would be forthcoming the next day. Axonowitz then handed Puleo a brown bag containing a white powdered substance, which later proved to be cocaine. As Puleo weighed the cocaine, he asked Lawrence if there was any way to make the fifteen ounces an even pound. Lawrence left the room momentarily and returned with a box and scale. Lawrence said the box contained three more ounces of cocaine and he handed it over for the officers’ inspection. Puleo agreed to buy one more ounce and handed the remaining two ounces back to Lawrence, who placed it back in the box.

While Puleo was completing the details of the purchase, Ortenzo left the premises purportedly to get another scale and the money. Ortenzo reentered the house with several back-up officers who were waiting outside. Whereupon Puleo took custody of appellants. Ortenzo took possession of the cocaine immediately after the arrest. The drugs were on the table some two feet in front of where Puleo had transacted the purchase.

Appellants pose the following question as their sole point on appeal:

Did not the trial court err in denying the defendant’s motion to suppress evidence to wit: cocaine, seized pursuant to a war-rantless search of a dwelling, wherein there was no affirmative showing of exigency, consent or any other exception to the search warrant requirement, and if so, should not the trial court’s order of denial be reversed?

The authorities relied upon by appellants for requiring search warrants or arrest warrants prior to entry are simply not applicable here because of the factual setting presented. On the contrary, this case is factually very close to one of our earlier cases, State v. Yenke, 288 So.2d 531 (Fla.4th DCA 1974). We have the consensual entry of the undercover officers, the negotiations for the sale of contraband, the presence of the contraband, the actual possession thereof by Puleo while weighing it. In the Yenke case it was unclear whether Officer Bower had manual possession of the twenty pounds of marijuana Yenke had delivered to him. In the present case Officer Puleo did not have manual possession of the contraband when Ortenzo reentered the house; the contraband was on the table where Pu-leo had weighed it; and Puleo was right there so that the contraband was at least in his constructive possession. We hold that the actual physical possession of the contraband is not a prerequisite to the admissibility of the 16 ounces of cocaine as evidence under the circumstances of this case; this court’s decision in State v. Farrington, 338 So.2d 2181 (Fla.4th DCA 1976), does not require a contrary holding.

Furthermore, we hold, as we did concerning Officer Riffle in Yenke, that Ortenzo had implied consent to reenter the house. Appellants were attempting to sell contraband; the deal had been agreed upon; and Ortenzo ostensibly went outside to get the money. Obviously, appellants wanted him to return to complete' the deal. Thus, to require him to knock and announce would be an absurd legalistic construction of the knock and announce statute. To the extent State v. Collier, 270 So.2d 451 (Fla.4th DCA 1972), holds to the contrary, we recede from it. In addition, the facts of the present case are different from those of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). There none of the officers who effectuated the arrests was inside the dwellings where the arrests took place.

Appellants further urge reversal on the grounds that the police had two mandatory alternatives available to them in handling this investigation leading up to the arrest. First, appellants suggest the police should have had a judge standing by to issue a search warrant. Upon learning facts sufficient to constitute probable cause, the police on the scene could have communicated that information to an affiant so as to obtain a search warrant. Alternatively, appellants suggest that after Puleo received delivery of the cocaine, he and Ortenzo should have left the residence and gone to a magistrate to obtain a search warrant. Surveillance could have been maintained on the house to prevent anyone from leaving and jeopardizing the money and other evidence from being lost. Appellants rely upon Raffield v. State, 351 So.2d 945 (Fla. 1977), Hornblower v. State, 351 So.2d 716 (Fla. 1977), and Hannigan v. State, 307 So.2d 850 (Fla. 1st DCA 1975), to support the foregoing contention. The Raffield holding concerning use of the first suggested procedure arose from a factual setting clearly distinguishable from that in the case at bar. In Raffield government agents stopped three heavily laden vehicles in Tallahassee three hours after those vehicles had been driven away from Raffield’s 40 acre farm. A search of the vehicles disclosed each contained marijuana and led to the arrest of the drivers. Armed with that information, the obtaining of a search warrant was in order before law enforcement officers proceeded to search the farm three hours after the vehicle searches. Moreover, neither Raffield, Hornblower, nor Hanni-gan has the factual situation where the officers are properly inside the house viewing the contraband which is for sale. We think that fact distinguishes this case and Yenke from Raffield, Hornblower, and Hannigan. Similarly, two other cases appellants rely on for reversal are dissimilar to the present case. In Hansen v. State, 372 So.2d 1003 (Fla.4th DCA 1979), the contraband was seized by officers who failed to knock and to announce their purpose before entering the premises upon which the contraband was located; there was no delivery of the contraband to either of two undercover officers already present on the premises.

State v. Roman, 309 So.2d 12 (Fla.4th DCA 1975), differs from Yenke and from the present case in one crucial aspect, namely, after the defendant had delivered the contraband to Beckstrom, Beckstrom left the premises, thereby permitting an inference that he abandoned possession of the contraband. In both Yenke and this case the officer to whom the contraband was delivered retained either actual or constructive possession thereof.

In view of the foregoing, the judgments and sentences appealed from are affirmed.

The foregoing decision passes upon the following questions, which we hereby certify are of great public importance:

(1) When an individual invites more than one undercover law enforcement officer into a dwelling or other building in order to transact felonious business and one officer leaves the premises on the pretext of furthering the felonious transaction (but in reality to obtain reinforcements) while another officer or officers remain inside the premises, does the officer who left have an implied invitation to reenter the premises freely or must he comply with the provisions of Section 901.19(1), Florida Statutes (1979), in order to make a lawful reentry?
(2) Does the holding of the Supreme Court of the United States in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), prohibit the sort of reentry described • in question (1) even though the officer seeking reentry complies with Section 901.19(1)?

DOWNEY and MOORE, JJ., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

I agree completely with Judge Downey’s opinion. This court has had substantial difficulty reconciling several previous decisions we have rendered involving similar factual situations. See Hansen v. State, 372 So.2d 1003 (Fla.4th DCA 1979). In my view once the defendants admitted the undercover police officers to their premises and proceeded to openly engage in criminal conduct in the officers’ presence they could not thereafter claim any violation of their reasonable expectation of privacy under the Fourth Amendment if one of the officers left and returned, alone or with other officers, and effected their arrest. Under such circumstances the defendants have waived any privacy claim by disclosing the contraband and engaging in criminal conduct in the presence of the officers, who could have effected the arrest of the defendants inside the premises at any time. The fact that one officer left and returned on a ruse may have benefited the officers by allowing them the added protection of other armed officers to assist in the arrest, but such conduct did not constitute an additional intrusion into the defendants’ premises since such intrusion had already been lawfully accomplished by the undercover officers. I think the officers’ conduct in this case was eminently reasonable and would recede from any implication to the contrary contained in Hansen v. State, supra, and the cases cited therein. Also see Koptyra v. State, 172 So.2d 628 (Fla.2d DCA 1965).