author: PER CURIAM.

text:
    Bennie DEMPS, Appellant, v. STATE of Florida, Appellee.
    No. 54249.
    Supreme Court of Florida.
    Jan. 8, 1981.
    Rehearing Denied April 15, 1981.

      John L. Carroll, Montgomery, Ala. and Julius Williams, Orlando, for appellant.
    Jim Smith, Atty. Gen. and Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This case is properly before us on direct appeal from the Circuit Court for the Eighth Judicial Circuit. Appellant Demps was convicted and sentenced to death for the slaying of Alfred Sturgis. For the following reasons we affirm the conviction and sentence.

On September 6, 1976, personnel at the Florida State Prison discovered inmate Alfred Sturgis in a cell, bleeding profusely from stab wounds. He was rushed first to the hospital at Union Correctional Institute, then to the state prison at Lake Butler. Due to inadequate facilities at both institutions, Sturgis was taken to Shands Teaching Hospital in Gainesville, where he died soon after arrival.

A grand jury indicted inmates Bennie Demps, James Jackson and Harry Mungin for the murder of Alfred Sturgis. In the course of preliminary depositions, defense counsel learned that while en route to the hospital, Sturgis told correctional officer A. V. Rhoden that appellant, Jackson and Mungin had committed the knifing. Rho-den later reduced the statement to writing and included it in a report filed with R. K. Griffis, a Department of Corrections investigator. After defense requests to produce the written document, the state informed the court that Mr. Griffis had misplaced Rhoden’s statement. In a pretrial hearing the court refused to dismiss the indictment based on the state’s failure to produce Rho-den’s report.

At trial Mr. Rhoden explained to the jury what Sturgis had told him in the ambulance:

Q [Mr. Elwell] All right. What happened after that?
A He [Sturgis] reached up and took my hand and . ..
Q Were you standing up, Mr. Rhoden?
A Yes, sir;
Q And would you indicate how he reached up and took your hand?
A He just reached his hand up, picked his arm up, it was laying down on the stretcher, and he just picked it up and taken my hand.
Q And did you note anything about his appearance in addition to what you just testified to?
A He was chalky looking.
Q All right.
A His eyes was rolling back and forth in his head.
Q And other than grabbing your hand, did he do anything else?
A Yes, sir. He told me, he said:
“Mr. Rhoden, you got to help me. I don’t believe I’m going to make it.”
And I said: “You got to, Sturgis.”
He said: “I don’t think I will.”
I said, “You got to, you got to help me get the ones that done it.”
And he said: “Well, you have to get them for me.”
Q Did he say anything else?
A Yes, sir, he said:
“You have to get Mungin and Demps, they held me and Jackson stabbed me.”
I asked him, “Which Jackson?”
And he said: “Toothless Jackson.”
Q How long did this statement take, from the time that he grabbed your hand and said:
“Mr. Rhoden, I don’t believe I’m going to make it.”
until he finished; how long did that statement take?
A Just a very short time.
Q Were there any interruptions by any person during the giving of that statement to you?
A No, sir.

Another witness for the prosecution, fellow inmate Larry Hathaway, testified that while walking past Harry Mungin’s cell on the afternoon of the murder, Mungin told him to go downstairs and stay there, because Mungin “was fixing to get., rid of a snitch.” He followed Mungin’s suggestion but returned a short while later, at which time he noticed a struggle going on in the cell in which Sturgis was later found. Mungin was standing in the door of the cell; inside, Hathaway could see appellant holding Sturgis down on the bed while Jackson struck him with downward thrusts. Upon seeing this, Hathaway quickly left the scene.

Defense counsel sought to impeach Hathaway’s testimony by showing that Hathaway was a homosexual, on the premise that Hathaway implicated the codefendants in exchange for a transfer to the prison where his lover, Robert Ziegler, resided. The trial ..court held that Hathaway’s homosexuality was inflammatory and irrelevant and limited questioning to whether Ziegler and Hathaway were “real good friends.”

At the sentencing phase the jury recommended sentences of life imprisonment for Mungin and death for Jackson and appellant. The trial judge sentenced Mungin and Jackson to life, but sentenced appellant to death.

Appellant challenges his conviction on three grounds, two of which merit discussion. He first contends that the state violated the rules of discovery and deprived him of a valuable tool for cross-examination by not producing A. V. Rhoden’s written .statement of his conversation with Sturgis en route to the hospital.

Concededly, Florida Rule of Criminal Procedure 3.220(j)(l) authorizes a trial judge to impose a broad range of sanctions against a party for nonproduction of discoverable material. But we disagree with appellant’s conclusion that the state was in breach of a discovery rule in this case. In response to the trial court order compelling discovery of Rhoden’s report, the state made an adequate and uncontroverted explanation that the statement had simply disappeared. In fact, the evidence suggests that the state attorney never had access to Rhoden’s statement. Mr. Griffis testified that shortly after placing the report in his personal investigative file, he lost the file, which presumably to this day remains missing. Under these peculiar circumstances, the state should not be held accountable for the nonproduction of the misplaced document.

Nor can it be said that the loss of Rhoden’s statement impinged upon appellant’s right to a fair trial. While Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), hold that in certain instances a criminal defendant may be deprived of a fair trial by prosecutorial suppression of evidence, the evidence must be material to guilt or innocence, and its omission must have caused prejudice to the accused. There is nothing in this record to indicate that Rhoden’s written statement varied from his testimony at trial, or that its absence prejudiced his defense in any other way. See State v. Sobel, 363 So.2d 324 (Fla.1978); Salvatore v. State, 366 So.2d 745 (1978).

We are similarly unpersuaded that the court erred in forbidding reference to Larry Hathaway’s homosexuality on cross-examination. A trial judge enjoys broad discretion in determining the permissible scope of cross-examination. Ho Yin Wong v. State, 359 So.2d 460 (Fla.3d DCA 1978); Baisden v. State, 203 So.2d 194 (Fla.4th DCA 1967). The trial court here quite properly concluded that the inflammatory and prejudicial effect of evidence relating to Hathaway’s homosexuality far outweighed its dubious relevance. See Proffitt v. State, 315 So.2d 461 (Fla.1975).

With regard to the imposition of the death sentence, appellant takes issue with the trial court’s instructions on mitigating circumstances in two respects, that they improperly mandated the death penalty if no mitigating circumstances were found, and they limited consideration of mitigating factors to those statutorily enumerated. Since these issues were not raised by defense counsel at trial, they are not reviewable here. Castor v. State, 365 So.2d 701 (Fla.1978); McCaskill v. State, 344 So.2d 1276 (Fla.1977); Douglas v. State, 328 So.2d 18 (Fla.1976). In any event, we note that the instructions tracked Florida’s Standard Jury Instructions and in no way called for a mandatory death sentence. And as we have recently stated on two separate occasions, the instructions do not limit jury consideration to the statutorily enumerated mitigating circumstances. Peek v. State, 395 So.2d 492 (Fla.1980); Songer v. State, 365 So.2d 696, 700 (Fla.1978).

The trial court found four aggravating circumstances applicable to this case. Two of these findings are erroneous. We do not believe this murder to have been so “conscienceless or pitiless” and thus set “apart from the norm of capital felonies” as to render it “especially heinous, atrocious, or cruel.” See Lewis v. State, 377 So.2d 640 (Fla.1979); Cooper v. State, 336 So.2d 1133 (Fla.1976); Tedder v. State, 322 So.2d 908 (Fla.1975). Secondly, though there was some evidence to show that the murder was committed for the purpose of avoiding or preventing a lawful arrest, it surely cannot be said that the evidence established this factor beyond a reasonable doubt. See State v. Dixon, 283 So.2d 1, 9 (Fla.1973); Phippen v. State, 389 So.2d 991 (Fla.1980).

There remain, however, two valid aggravating circumstances counterbalanced by no mitigating circumstances. Since death is presumed in this situation, the trial court’s improper consideration of the factors discussed above does not render the sentence invalid:

It appears that the United States Supreme Court does not fault a death sentence predicated in part upon nonstatuto-ry aggravating factors where there are no mitigating circumstances. The absence of mitigating circumstances becomes important, because, so long as there are some statutory aggravating circumstances, there is no danger that non-statutory circumstances have served to overcome the mitigating circumstances in the weighing process which is dictated by our statute.

Elledge v. State, 346 So.2d 998, 1002-03 (Fla.1977) (emphasis in original).

Appellant’s final attack centers on the disparity of sentences imposed upon the three codefendants. He cites Slater v. State, 316 So.2d 539 (Fla.1975), for the proposition that equally culpable defendants should receive equal sentences. While we agree with and reaffirm the principle enunciated in Slater, this is a different case. Nothing in Slater prohibits a trial judge from taking into consideration the quality of aggravating circumstances applicable to each defendant. Of these codefendants, only appellant had the loathsome distinction of having been previously convicted of the first-degree murder of two persons and attempted murder of another, escaping the gallows only through the intervention of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). The record amply supports the judge’s determination that appellant was especially deserving of the death sentence. See also, Jackson v. State, 366 So.2d 752 (Fla.1978); Salvatore v. State, 366 So.2d 745 (Fla.1978).

Accordingly, the conviction and sentence of death are affirmed.

It is so ordered.

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

      . Art. V, § 3(b)(1), Fla.Const. (1972).

      . Appellant’s codefendants, Harry Mungin and James Jackson, were convicted of first-degree murder but sentenced to life imprisonment for the same offense. Their convictions and sentences are not before us today, though the disparity of sentences among the three defendants will be addressed later in the opinion.

      . We have, of course, carefully reviewed appellant’s argument concerning certain photographic evidence, but find it unpersuasive.

      . (j) Sanctions
      (1) If, at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant to an applicable discovery rule, the court may order such party to comply with the discovery or inspection of materials not previously disclosed or produced, grant a continuance, grant a mistrial, prohibit the party from calling a witness not disclosed or introducing in evidence the material not disclosed, or enter such other order as it deems just under the circumstances.

      . The trial court’s findings with respect to these four aggravating circumstances are as follows:
      1. THE CRIME FOR WHICH THE DEFENDANT IS TO BE SENTENCED WAS COMMITTED WHILE THE DEFENDANT WAS UNDER SENTENCE OF IMPRISONMENT.
      As pointed out in mitigating circumstances one, at the time of this murder Defendant Demps was serving two consecutive life sentences having been spared death when the death penalty in Florida was declared unconstitutional plus 20 years for his attempt to kill the third victim. It is the Court’s opinion that this is a strong aggravating circumstance.
      2. AT THE TIME OF THE CRIME FOR WHICH HE IS TO BE SENTENCED THE DEFENDANT HAD BEEN PREVIOUSLY CONVICTED OF ANOTHER CAPITAL OFFENSE OR OF A FELONY INVOLVING THE USE OR THREAT OF VIOLENCE TO SOME PERSON.
      Again as pointed out in mitigating circumstances one and aggravating circumstance one, Defendant Demps had previous convictions as contemplated by this aggravating condition. The evidence showed that Defendant Demps locked three innocent persons in the trunk of one of the victims’ automobiles and at close range repeatedly fired a rifle through the trunk into the bodies of the trapped victims killing two and wounding the third one, the heinous details of which are set forth in the presentence investigation considered by the Court in this case. It is the Court’s opinion there are extreme aggravating circumstances under this condition.

      5. THE CRIME FOR WHICH THE DEFENDANT IS TO BE SENTENCED WAS COMMITTED FOR THE PURPOSE OF AVOIDING OR PREVENTING A LAWFUL ARREST OR EFFECTING AN ESCAPE FROM CUSTODY.
      The evidence in this case showed Defendant Demps was eliminating a “snitch.” There is no evidence as to what this victim knew or why he was senselessly murdered. It may be assumed that the victim knew something and that whatever he knew had to be forever put to rest. It is the Court’s opinion that there is a mild aggravating circumstance under this condition.

      8. THE CRIME FOR WHICH THE DEFENDANT IS TO BE SENTENCED WAS ESPECIALLY HEINOUS, ATROCIOUS OR CRUEL. “HEINOUS” MEANS EXTREMELY WICKED OR SHOCKINGLY EVIL. “ATROCIOUS” MEANS OUTRAGEOUSLY WICKED AND VILE. “CRUEL” MEANS DESIGNED TO INFLICT A HIGH DEGREE OF PAIN, UTTER INDIFFERENCE TO OR ENJOYMENT OF THE SUFFERING OF OTHERS: PITILESS.
      Defendant Demps senseless killing of his fellow inmate was extremely offensive and cruel and demonstrated total disregard for the life and safety of victim Alfred Sturgis. It was especially cruel because the victim has been denied his right to live and his right to return to society, his family and friends after payment for the crime he committed which resulted in his imprisonment; and the fact that he was an inmate does not make his life any less precious than any citizen in a free society.
      It is the Court’s opinion there are very strong aggravating circumstances under this condition.

      . State v. Dixon, 283 So.2d 1, 9 (Fla.1973).

      . § 921.141(5)(h), Fla.Stat. (1979).

      . § 921.141(5)(e), Fla.Stat. (1979).

      . The capital felony was committed by a person under sentence of imprisonment, § 921.-141(5)(a), and the defendant was previously convicted of another capital felony, § 921.-141(5)(b).

      . State v. Dixon, 283 So.2d at 9.

      . Cf. Elledge v. State, 346 So.2d 998 (Fla.1977). (The purpose of considering aggravating and mitigating circumstances is to engage in a character analysis of the defendant.)


source: Caselaw Access Project

author: SUNDBERG, Chief Justice.

license: Public Domain

text:
    CONTINENTAL MORTGAGE INVESTORS, a Massachusetts Business Trust, Petitioner, v. SAILBOAT KEY, INC., a Florida Corporation, Respondent.
    No. 53490.
    Supreme Court of Florida.
    Feb. 12, 1981.
    Rehearing Denied April 13, 1981.
    Thomas G. Schultz of Holland & Knight, Miami, for petitioner.
    Richard L. Lapidus of Lapidus & Stettin, Miami, for respondent.
   SUNDBERG, Chief Justice.

This petition for writ of certiorari arises from a money judgment awarded to Sailboat Key, Inc., a Florida borrower. The award was based on a claim that an interstate loan made by Continental Mortgage Investors, a Massachusetts business trust, violated Florida usury laws. Chapter 687, Fla.Stat. (1975). Though a myriad of issues was presented by both sides, we find the conflict of laws issue to be dispositive. The question presented is whether the courts of this state will recognize a choice of law provision designating foreign law in an interstate loan contract which calls for interest prohibited as usury under Florida law but supportable under the chosen foreign law. We conclude that in an interstate commercial loan transaction with which several states have contacts and in which usury is implicated, Florida courts will recognize a choice of law provision provided by the parties so long as the jurisdiction chosen in the contract has a normal relationship with the transaction. Under the circumstances of this case, we hold that Continental Mortgage Investors, a real estate investment trust organized under the laws of Massachusetts with its only office in Massachusetts where it carries on its business, has a sufficient nexus with Massachusetts to support a choice of law provision in favor of that state’s law.

I. Factual Background

In late 1969, Sailboat Key, Inc. (Sailboat Key), a Florida real estate development corporation, applied for a land development loan through Mortgage Consultants, a Coral Gables management firm contracted by Continental Mortgage Investors to originate, underwrite and recommend loans for the trust. Continental Mortgage Investors (Continental) is a Massachusetts business trust dealing in extensive multistate lending, formed in 1961 with its only office in Boston, residence of a majority of the origi- - nal trustees. On December 30, 1969, after approval by the trustees in Boston, Continental sent a loan commitment letter to Sailboat Key which included among its thirty terms the following: (1) a two-year loan of $3,500,000 at 14% per annum, secured by the property to be developed; (2) a discount, stock interest in the borrower corporation, and a commitment fee; and (3) a choice of law provision declaring the intent of the parties to be that Massachusetts law govern all parts of the loan commitment. Mortgage Consultants prepared the loan documents, and the closing took place in Boston on January 22,1970, at which time a loan agreement, a note secured by a first mortgage, a stock pledge agreement, and guarantees were executed. Each of these documents, except for the stock pledge agreement, contained a choice of law provision specifying Massachusetts law as the applicable law. It is undisputed by the parties that applicable Massachusetts law does not provide usury penalties to the borrower in these circumstances. The note was made payable at Continental’s Boston office.

In late 1971, Sailboat Key because of its default found it necessary to enter a settlement agreement with Continental, which advanced an additional $400,000 and certain . other considerations in return for Sailboat Key’s promise to pay $740,000 plus an amount for the stock which Continental held. The settlement agreement modifying the loan agreement was signed on October 22, 1917, in Boston and Sailboat Key executed two new notes. Sailboat Key, to implement the agreement, borrowed $6,000,-000 from another lender, Fidelity Mortgage Investors, to refinance the land development. On November 5, 1971, Sailboat Key paid Continental all of the money then due under the settlement agreement, leaving approximately $550,000 owing on one of the settlement agreement notes, due to Continental on November 1, 1976. Continental had agreed to subordinate its mortgage position for this amount to a second lender, Fidelity Mortgage Investors.

Three years later, Sailboat Key and Continental were joined as defendants by Fidelity Mortgage Investors in the foreclosure of its first mortgage. Sailboat Key cross-claimed for usury against Continental; Continental cross-claimed to foreclose its subordinated mortgage. These cross-claims were severed from the main action upon motion, and a special master was appointed as a fact finder with regard to interest computations. Continental then voluntarily dismissed its cross-claim, leaving only Sailboat Key’s usury claim. Based upon the special master’s findings and after hearing testimony, the trial court, applying Florida law, found the entire loan agreement to be usurious and assessed a penalty of twice ,the interest charged, plus costs. The District Court of Appeal, Third District, affirmed the award, upholding the application of Florida law on the basis of public policy and a finding by the trial court that the parties’ choice of Massachusetts law was made in bad faith and was an effort to avoid Florida usury laws. Continental Mortgage Investors v. Sailboat Key, Inc., 354 So.2d 67 (Fla. 3d DCA 1977).

II. Conflict of Laws: Usury

A. Public Policy

As with most shibboleths, the invocation of strong public policy to avoid application of another state’s law is unwarranted in this case. Although a few jurisdictions do attach such a public policy to their usury laws,, it is generally held that usury laws are not so distinctive a part of a forum’s public policy that a court, for public policy reasons, will not look to another jurisdiction’s law which is sufficiently connected with a contract and will uphold the contract. See Ury v. Jewelers Acceptance Corp., 227 Cal.App.2d 11, 38 Cal.Rptr. 376 (1st Dist. 1964); Santoro v. Osman, 149 Conn. 9, 174 A.2d 800 (1961); Big Four Mills, Ltd. v. Commercial Credit Co., 307 Ky. 612, 211 S.W.2d 831 (1948); Exchange Bank & Trust Co. v. Tamerius, 200 Neb. 807, 265 N.W.2d 847 (1978); 45 Am.Jur.2d, Interest and Usury § 19 (1969). The few courts that do rely on a public policy exception in a usury-choice of law situation invariably are dealing with the individual, and often consumer, borrower. See, e. g., Lyles v. Union Planters National Bank, 239 Ark. 738, 393 S.W.2d 867 (1965). We do not think the mere fact that there exists in Florida a usury statute which prohibits certain interest rates establishes a strong public policy against such conduct in this state where interstate loans are concerned.

The usury statute itself, fraught as it is with exceptions, belies the imputation of a strong public policy. See § 687.031, Fla. Stat. (1975). In 1975 The Florida Consumer Finance Act allowed interest on small loans as high as 30% per annum, in contrast to the general usury ceiling of 10% per annum. § 516.031, Fla.Stat. (1975). The Savings Association Act made usury limits simply inapplicable to building and loan associations. §§ 665.395, 687.031, Fla.Stat. (1975). Under the Banking Code, banks could charge up to 18% per annum on certain loans. § 659.181, Fla.Stat. (1975). Florida has long recognized the general exception to usury laws of the time-price doctrine. See Davidson v. Davis, 59 Fla. 476, 52 So. 139 (1910). The usury law does not apply to the sale of bonds, or mortgages on those bonds, section 687.03(1), Florida Statutes (1975), or to the transfers of negotiable paper in certain cases, section 687.04, Florida Statutes (1975).

The legislature recently raised the maximum interest rates allowable under the usury laws, demonstrating that this public policy is at very least relatively flexible in a confrontation with commercial reality. See Ch. 79-274, § 13, Laws of Florida. Nor do we consider usury protections fundamental to a legal system. The defense of usury is a creature entirely of statutory regulation, and is not founded upon any common-law right, either legal or equitable. Matlack Properties, Inc. v. Citizen & Southern National Bank, 120 Fla. 77, 162 So. 148 (1935). Finally, we note the limited effect of the usury laws upon a contract. “[T]he usury statutes in this jurisdiction do not have the effect of invalidating contracts for [usurious] interest .. . but only accord to the obligor the personal privilege of setting up ... affirmative defenses of usury in respect to such contracts.” Yaffee v. International Co., 80 So.2d 910, 912 (Fla.1955).

The cases cited by the district court are not strong support for its invocation of public policy. Bond v. Koscot Interplanetary, Inc., 246 So.2d 631 (Fla. 4th DCA 1971), cert. denied, 283 So.2d 866 (Fla.1973), merely stands for the truism that an agreement against public policy is unenforceable, but does not delineate public policy in terms of usury. Davis v. Ebsco Industries, Inc., 150 So.2d 460 (Fla. 3d DCA 1963) and C & D Farms, Inc. v. Cerniglia, 189 So.2d 384 (Fla. 3d DCA 1966), are inapposite since they deal with covenants-not-to-compete, and do not help us understand the strength of the very different policies underlying the usury laws.

Finding no real support in our case law for the use of the public policy exception under these circumstances, and in view of the pervasive exceptions to the usury laws and the actual operation of these laws, we are unable, particularly in the commercial setting of this case, to glean any overriding public policy against usury qua usury in a choice of law situation.

B. Conflict of Laws Rule

The courts of this state have never directly confronted conflict of laws in a usury setting when another state’s law chosen by the parties will uphold the agreement. A general rule for choice of laws in a contracts situation might be derived from Thomson v. Kyle, 39 Fla. 582, 23 So. 12 (1897), which followed the traditional place of execution and place of performance. We have applied this rule in contractual choice of laws situations to which Florida could probably apply its usury penalties, and the parties did not indicate a controlling law. Goodman v. Olsen, 305 So.2d 753 (Fla.1974), cert. denied, 423 U.S. 839, 96 S.Ct. 68, 46 L.Ed.2d 58 (1975) (applying New York law to find no usury). But such a test is today of little practical value since these contacts are so easily manipulated in our mobile society.

Courts in almost every jurisdiction recognize that a usury claim presents a distinct choice of laws question. The rule that the overwhelming majority follows may be stated as follows:

[W]ith respect to the question of usury, it may be stated as a well-established rule that a provision in a contract for the payment of interest will be held valid in most states if it is permitted by the law of the place of contracting, the place of performance, or any other place with which the contract has any substantial connection.

Fahs v. Martin, 224 F.2d 387, 397 (5th Cir. 1955). This “traditional” or “federal” rule is derived directly from Seeman v. Philadelphia Warehouse Co., 274 U.S. 403, 47 S.Ct. 626, 71 L.Ed. 1123 (1927), in which a Pennsylvania corporation made a loan to a New York borrower who sought protection of New York usury laws. The Supreme Court concluded that the parties could contract for a higher rate of interest allowed by either place of performance, place of execution, or a place with a vital and natural connection. Id. at 408, 47 S.Ct. at 627. Citing Miller v. Tiffany, 68 U.S. (1 Wall.) 298,17 L.Ed. 540 (1864), the court explained that the qualification of “good faith” required in that case must not be taken too literally:

The effect of the qualification is merely to prevent the evasion or avoidance at will of the usury law otherwise applicable, by the parties’ entering into the contract or stipulating for its performance at a place which has no normal relation to the transaction and to whose law they would not otherwise be subject.

Id. at 408, 47 S.Ct. at 627 (emphasis added). This language makes clear that if a “normal relation” does exist, then good faith is not otherwise necessary to validate the transaction.

There is no disagreement among commentators in the conflict of laws field that this view is generally followed. Professor Beale wrote: “[T]he rule has become well settled in almost all jurisdictions, too well settled to be changed except by statute, that if a contract is made and to be performed in different states, and is usurious by the law of one of these places but not by that of the other, it is governed, according to the presumed intention of the parties, by the law of the place which makes it valid.” 2 J. Beale, Conflict of Laws, § 347.4 (1935) (footnote to multitudinous citations omitted). See also H. Goodrich & E. Scoles, Conflict of Laws, § 111 (4th ed. 1964); G. Stumberg, Conflict of Laws, 237-40 (2d ed. 1951).

As Professor Beale noted, the historical rationale underlying this rule of validation was the presumption that the parties had contracted with reference to the law of the place where the transaction would be valid. See Atlas Subsidiaries, Inc. v. O. & O., Inc., 166 So.2d 458, 461 (Fla. 1st DCA 1964). This rationale has become modified in modern times because of the frequent inclusion of specific choice of law provisions in commercial, multistate contracts. The focus is no longer on presumed intent, but rather on party expectations since the intentions of the parties are usually expressed, The Restatement (Second) has adopted a modified traditional rule in usury cases and justifies its position through preservation of party expectation.

A prime objective of both choice of law ... and of contract law is to protect the justified expectations of the parties. Subject only to rare exceptions, the parties will expect on entering a contract that the provisions of the contract will be binding upon them.... Usury is a field where this policy of validation is particularly apparent.... [T]he courts deem it more important to sustain the validity of a contract, and thus to protect the expectations of the parties, than to apply the usury law of any particular state.

Restatement (Second) of Conflict of Laws, § 203, Comment b (1971). Thus, the rule of validation is generally viewed as the best means of furthering the parties’ expectations. A final justification for the traditional rule is founded in the idea of commercial comity. Since practically every jurisdiction that has confronted this issue has adopted some form of the traditional rule, this state would be commercially singular if it did not apply favorable law of the state with a normal relation to a contract. Commercial stability in interstate trade depends on predictability and some degree of uniformity among the states in their willingness to honor commercial agreements.

Federal courts in this state have followed the traditional rule, as stated in Fahs v. Martin, 224 F.2d 387, 397 (5th Cir. 1955). In Your Construction Center, Inc. v. Dominion Mortgage & Realty Trust, 402 F.Supp. 757 (S.D.Fla.1975), the district court applied New York law as contractually stipulated by the Florida corporate borrower and the New York lender, a Massachusetts business trust. Though relying partly on Thomson v. Kyle and the place of performance rule, the court also cited the language of Atlas Subsidiaries, 166 So.2d at 461, which laid out in dicta the general rule of validation in a usury situation. The rule of validation was effectively applied in a choice of law-usury case in Nicholas v. Publishers Collection Service, Inc., 320 F.Supp. 1200 (S.D.Fla. 1971), which again upheld party expectations.

The United States Fifth Circuit Court of Appeals has historically followed the rule of validation in usury cases. Lubbock Hotel Co. v. Guaranty Bank & Trust Co., 77 F.2d 152 (5th Cir. 1935), held that when usury is asserted, the law of the jurisdiction related to the transaction which upholds the contract is presumed to apply. Id. at 156. The influential case of Fahs v. Martin, which fully developed this choice of laws rule, followed Lubbock Hotel. Later, Blackford v. Commercial Credit Corp., 263 F.2d 97 (5th Cir.), cert. denied, 361 U.S. 825, 80 S.Ct. 74, 4 L.Ed.2d 69 (1959), stated simply, “[A]s to questions of usurious interests on a loan transaction having contact with many states, the law upholding the contract is to be controlling.” Id. at 113.

Support for the traditional rule in usury cases is found in the vast majority of other jurisdictions. See e. g., Speare v. Consolidated Assets Corp., 367 F.2d 208 (2d Cir. 1966) (alternative holding, construing New York law); Cooper v. Cherokee Village Development Co., 236 Ark. 37, 364 S.W.2d 158 (1963); Ury v. Jewelers Acceptance Corp., 227 Cal.App.2d 11, 38 Cal.Rptr. 376 (1st Dist. 1964); Big Four Mills, Ltd. v. Commercial Credit Co., 307 Ky. 612, 211 S.W.2d 831 (1948); Ferdie Sievers & Lake Tahoe Land Co. v. Diversified Mortgage Investors, 603 P.2d 270 (Nev.1979); and Goodwin Brothers Leasing, Inc. v. H & B Inc., 597 S.W.2d 303 (Tenn.1980). In Ferdie Sievers, a Massachusetts business trust which transacted business throughout the country, with its principal place of business in Massachusetts, made a building construction loan to a Nevada corporation. The negotiations were carried on in Nevada, though the note was executed and made payable in Boston. The loan agreement stipulated Massachusetts law. Following Seeman, the Nevada Supreme Court upheld the agreement and refused to apply its own usury law since a “substantial nexus” with Massachusetts existed. Ferdie Sievers, 603 P.2d at 274.

Goodwin Brothers involved a slightly different situation: a forum borrower, a Tennessee construction corporation; and out of state lender, a Kentucky corporation; a contractual stipulation to Kentucky law; and a Tennessee office of the Kentucky lender where the loan was negotiated. The transaction was actually closed in the forum state and the proceeds disbursed there. In spite of the many Tennessee contacts, the Tennessee court applied Kentucky law, avoiding application of its own usury laws, and recognized principles of party autonomy based on Seeman. The only contacts with Kentucky were the domicile of the lender and the place of payment. But the court noted that Seeman had distilled the “good faith” requirement to mean “normal relation.” Since the lender had its principal office in Kentucky, and it was this home office that approved the loan application, the court found a normal relation to Kentucky, and applied that state’s laws. Goodwin Brothers, 597 S.W.2d at 308.

We do not have to decide as difficult a case as the Tennessee court dealt with in Goodwin Brothers, and intimate no views as to such a case. But we do decide that this Court will follow under the circumstances of this case the traditional rule, which upholds an agreement against usury by applying foreign law if the foreign jurisdiction has a normal relation to the transaction and would also favor the agreement. To this we add the clarification offered by Seeman that good faith of the parties is not relevant to a choice of laws question in the usury area unless no substantial or normal relation exists between the foreign jurisdiction and the transaction.

III. Application of the Rule

Here the parties did not stipulate to a jurisdiction having no normal relation to the transaction. On the contrary, several vital and natural elements exist which establish a relationship with Massachusetts. The record shows that Continental’s only domicile and office is in Boston. It is uncontested that Continental’s principal place of business is Boston, and that in Boston the trust approves loans, handles all commercial banking arrangements, carries on relations with underwriters, and there pursues other means of raising funds for interstate loans. The record establishes that Continental was formed in 1961 in Boston, nine years prior to the Sailboat Key loan, for the legitimate business reasons of seeking special federal tax treatment as a real estate investment trust, utilizing the established and predictable business trust laws of Massachusetts. Massachusetts was the residence of the founding majority of trustees, and was the residence with the greatest number of trustees when the loan was made. In addition to the domicile-place of business contacts, which we consider most significant, the loan agreement was executed in Massachusetts, the loan was made payable in that state, and the funds were originally disbursed from that state.

It is patent from Seeman and its progeny that in a usury case that involves a conflicts question, we do not count the number of contacts with each state, or measure the good faith of the parties. Rather, we must look to the related foreign jurisdiction which favors the agreement, and determine if a normal relation exists. If a normal relation exists, we ought to apply the foreign law. In part for this reason, we are unimpressed with the lower court’s and Sailboat Key’s reliance on May v. United States Leasing Corp., 239 So.2d 73 (Fla. 4th DCA 1970), and Bella Isla Construction Corp. v. Trust Mortgage Corp., 347 So.2d 649 (Fla. 3d DCA 1977), for the proposition that choice of laws in the usury case is entirely a question of fact, i. e. good faith. Both of these cases simply require a factual hearing to support factual allegations made in pleadings of a usury case and hold that summary judgment is not proper without such a factual finding. Exhaustive fact finding has been conducted in the present case, making the direct holdings of May and Bella Isla inapplicable. We therefore need not determine what effect our decision today has upon these cases, but the implication based on these cases that good faith is required in addition to a normal relation is clearly refuted by our decision. See Consolidated Jewelers, Inc. v. Standard Financial Corp., 325 F.2d 31, 34 (6th Cir. 1963).

The factually supported contacts Continental has with Massachusetts, particularly in its domicile and place of business, establish that it has a vital, natural, and normal relationship with that state, and therefore, in this usury case, the laws of Massachusetts should apply as contractually agreed by the parties. Although it is undisputed by the parties that applicable Massachusetts law does not provide usury penalties awarded to the borrower; we are not totally convinced that Massachusetts would not afford the borrower some relief. There is some possibility that Massachusetts Annotated Laws ch. 271, § 49 (1980), a criminal usury statute enacted in 1970, may be applicable. Recent Massachusetts cases, although upholding the loan agreement, have provided borrowers protected by the statute a modicum of relief by limiting interest collection to twenty percent. See Begelfer v. Najarian,-Mass.-, 409 N.E.2d 167 (1980); Beach Associates, Inc. v. Fauser, -Mass.App.-, 401 N.E.2d 858 (1980). Since we were not briefed on Massachusetts law, and the parties did not present detailed arguments at either the trial or initial appellate level, we are unable to resolve this issue. The present usury award to Sailboat Key cannot stand, however, since it was erroneously based on Florida law.

Accordingly, the petition for writ of cer-tiorari is granted. The decision of the District Court of Appeal, Third District, is quashed, and this case is remanded to the district court with instructions to remand to the trial court for determination and application of Massachusetts law, the proceedings not to be inconsistent with our decision.

It is so ordered.

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

      . Jurisdiction vested under article V, section 3(b)(3), Florida Constitution (1972), because of the conflict with North Am. Mtg. Investors v. Cape San Blas Joint Venture, 357 So.2d 416 (Fla. 1st DCA 1977). This conflict issue was resolved by our decision in North Am. Mtg. Investors v. Cape San Blas Joint Venture, 378 So.2d 287 (Fla.1979).

      . This firm was referred to as Continental Ad-visors by the court below. 354 So.2d 67, 69-70 (Fla. 3d DCA 1977).

      . Apparently, Mass.Ann.Laws ch. 107, § 3 (1975) is the applicable law. This section allows parties to contract for any interest rate so long as the agreement is in writing.

      . See also Comment, Usury in the Conflict of Laws: The Doctrine of Lex Debitoris, 55 Cal.L. Rev. 123, 178 (1967).

      . Notably, in Davis v. Ebsco Indus., Inc., 150 So.2d 460 (Fla. 3d DCA 1963), when faced with a choice of law situation involving a multistate contract containing a covenant-not-to-compete, the court applied New York law as chosen by the parties. The court would simply not enforce the contract in Florida. Neither party here seeks enforcement of any contractual rights. C & D Farms v. Cerniglia, 189 So.2d 384 (Fla. 3d DCA 1966), follows Davis.

      . Under this traditional rule of Thomson, Massachusetts law would apply in the present case. The place of execution is Boston; the place of performance (payment) is also Boston. Thus, if we simply extended Goodman v. Olsen, 305 So.2d 753 (Fla.1974), to this case, the result would be clear.

      . Restatement (Second) of Conflict of Laws § 203 (1971) reads:
      The validity of a contract will be sustained against the charge of usury if it provides for a rate of interest that is permissible in a state to which the contract has a substantial relationship and is not greatly in excess of the rate permitted by the general usury law of the state of the otherwise applicable law under the rule of § 188.
      A state has a “substantial relationship” if it has a “normal and natural relationship to the contract and the parties.” Id. § 203, comment c.

      . We are not unaware of a recent fifth circuit case which did not follow this traditional rule, Woods-Tucker Leasing Corp. v. Hutcheson-In-gram Dev. Co., 626 F.2d 401 (5th Cir. 1980). We do not find this case persuasive since that court felt bound to follow two Texas decisions of the 1890’s which according to the court, developed an exception to the general rule. Ironically, the first case relied upon, Dugan v. Lewis, 79 Tex. 246, 14 S.W. 1024 (1891), upheld the parties’ expectations by applying Texas law as contractually stipulated, which at the time validated the transaction. Woods-Tucker is the only case which explicitly adopts lex debi-toris, the law of the debtor’s domicile, as the conflict of laws rule in a usury case.

        . The traditional rule derived from Seeman also applies the law of the more liberal jurisdiction if both have usury laws. Seeman itself applied the more liberal law since in that case even the lender’s state, which was viewed as the parties’ chosen law, had interest limitations, but with less severe penalties. Seeman, 274 U.S. at 405, 47 S.Ct. at 626. Thus, even if Massachusetts should have an applicable usury statute its law would still be the choice of law since its law is more lenient. See Fahs v. Martin, 224 F.2d 387, 397 (5th Cir. 1955) (apply most favorable law); Wiltsek v. Anglo-Am. Properties, Inc., 277 F.Supp. 78 (S.D.N.Y.1967); Deaton v. Vise, 186 Tenn. 364, 210 S.W.2d 665 (1948).


author: ENGLAND, Justice.

text:
    STATE of Florida, Appellant, v. Carlos M. BENITEZ and Esperanza Benitez, Appellees.
    No. 57834.
    Supreme Court of Florida.
    Feb. 12, 1981.
    Rehearing Denied April 13, 1981.

      Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., Miami, and Janet Reno, State Atty., and Arthur Joel Berger, Asst. State Atty., Miami, for appellant.
    Joseph Beeler, and Brian Richard McComb, Miami, for appellees.
    Philip Carlton, Jr. of the Law Offices of Philip Carlton, Jr., Miami, for Daniel Cow-gill, amicus curiae.
   ENGLAND, Justice.

This case comes to us on direct appeal from a trial court order determining that section 893.135, Florida Statutes (1979)— Florida’s newly-enacted “drug trafficking” statute — is unconstitutional.

After Carlos and Esperanza Benitez attempted to sell one kilo of cocaine to undercover narcotics agents for $44,000, they were charged by information with “trafficking in cocaine” in violation of section 893.135. In ruling on motions to dismiss the charges, the trial court entered a lengthy order declaring section 893.135 to be facially invalid on a multiplicity of grounds. The state appeals that order, urging error in each of the trial court’s rulings.

Section 893.135 is a unique response to a serious and growing concern of the legislature regarding illegal drug activities in the State of Florida. Subsection (1) of the new law establishes severe mandatory minimum sentences for trafficking in various types of illegal drugs. Subsection (2) prevents the trial court from suspending, deferring or withholding the adjudication of guilt or the imposition of sentence on a person convicted under the law, and it eliminates the defendant’s eligibility for parole during the minimum mandatory sentence. Subsection (3) provides an “escape valve” from the statute’s rigors, based on the initiative of the prosecuting attorney, by permitting the court to reduce or suspend a sentence if a convicted defendant is willing to cooperate with law enforcement authorities in the detection or apprehension of others involved in drug trafficking.

Section 893.135 was enacted to assist law enforcement authorities in the investigation and prosecution of illegal drug trafficking at all levels of distribution, from the importer-organizer down to the “pusher” on the street. The harsh mandatory penalties of subsection (1), ameliorated by the prospect of leniency in subsection (3), were clearly calculated to provide a strong incentive for drug violators to cooperate with law enforcement authorities and become informers. No one argues that the elimination of illegal drug traffic is not a beneficial and worthwhile goal, or that the goals of this legislation are not meritorious.

Nonetheless, in their zeal to combat the flow and distribution of illegal drugs through this novel legislation, legislators knowingly glossed over alleged constitutional defects in the approach that was being developed. We in the judiciary do not have that luxury. Indeed, the trial judge's extensive and detailed order exhibits the multiple, serious difficulties which this statute poses under well-established constitutional principles. We discern six major challenges to the constitutionality of section 893.135, one directed at the mandatory penalties and five directed at the escape valve in subsection (3). The state also half-heart-edly challenges the appellees' standing for the first time on this appeal. This last challenge being the easiest to treat, we discuss it first.

1. Standing

The basic rule governing the standing of parties challenging statutory enactments was recently stated in Sandstrom v. Leader, 370 So.2d 3, 4 (Fla.1979):

Fundamental constitutional principles dictate that one may not challenge those portions of an enactment which do not adversely affect his personal or property rights.. . Such a personal stake in.the outcome of the controversy is necessary “to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions[.]” (citations omitted).

The state argues that, because appellees have not yet been convicted, they have no personal stake in this penalty-oriented statute.

To state the assertion is to demonstrate its absurdity. A party subject to criminal prosecution clearly has a sufficient personal stake in the penalty which the offense carries. This is wholly unlike cases in which criminal defendants have challenged portions of a statute which have nothing to do with their prosecution. See State v. Millington, 377 So.2d 685 (Fla.1979); State v. Champe, 373 So.2d 874 (Fla.1978).

2. Cruel and Unusual Punishment

Appellees argue that the mandatory minimum sentences of section 893.135(1) violate the cruel and unusual punishment clauses of the state and federal constitutions. Relying on various death penalty decisions of the United States Supreme Court, they first contend that the mandatory minimum sentences unconstitutionally eliminate the exercise of discretion in sentencing. This argument was rejected by this Court in McArthur v. State, 351 So.2d 972 (Fla.1977), and warrants no further discussion here.

Appellees also argue that the mandatory sentences in section 893.135 constitute cruel and unusual punishment since they are unnecessarily severe and disproportional to the nature of the crime. This Court has consistently upheld minimum mandatory sentences, regardless of their severity, against constitutional attacks arguing cruel and unusual punishment. See, e. g., McArthur v. State, 351 So.2d 972 (Fla.1977); Banks v. State, 342 So.2d 469 (Fla.1976); O’Donnell v. State, 326 So.2d 4 (Fla.1975). The dominant theme which runs through these decisions is that the legislature, and not the judiciary, determines maximum and minimum penalties for violations of the law. While it is often said that in an extreme case — wherein the sentence was grossly disproportionate to the severity of the crime — the legislature’s judgment would run afoul of the constitutional prohibition, this Court has never addressed such a situation in the context of statutory sentencing minima.

The recent decision of the United States Supreme Court in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), indicates that similar considerations prevail under the federal constitution. In that case, the Court held that a mandatory life sentence imposed on the petitioner pursuant to a Texas recidivist statute did not constitute cruel' and unusual punishment under the eighth amendment. The majority’s analysis of this area noted that:

[tjhis Court has on occasion stated that the Eighth Amendment prohibits imposition of a sentence which is grossly disproportionate to the severity of the crime.... In recent years this proposition has appeared most frequently in opinions dealing with the death penalty.... Because a sentence of death differs in kind from any sentence of imprisonment, no matter how long, our decisions applying the prohibition of cruel and unusual punishment to capital cases are of limited assistance in deciding the constitutionality of the punishment meted out to Rummel.
Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.

Id., 445 U.S. at 271, 100 S.Ct. at 1138 (citations omitted). After analyzing one of these rare successful challenges, Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910), the majority concluded:

Given the unique nature of the punishments considered in Weems and in the death-penalty cases, one could argue without fear of contradiction by any decision of this Court that for crimes conced-edly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a matter of legislative prerogative.

Id., 445 U.S. at 273, 100 S.Ct. at 1139 (footnote omitted).

The penalties imposed by section 893.135 are certainly severe, but they are by no means cruel and unusual in light of their potential deterrent value and the seriousness of the crime involved. See McArthur v. State; O’Donnell v. State; accord, People v. Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338, cert. denied, 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287 (1975).

3. Due Process-Vagueness

Little discussion is needed concerning appellees’ suggestion that subsection (3) is impermissibly vague in defining a convicted defendant who is eligible for lenient treatment as “any person ... who provides substantial assistance in the identification, arrest, or conviction of any of his accomplices, accessories, co-conspirators, or principals.” Being a description of a post-conviction form of plea bargaining rather than a definition of the crime itself, the phrase “substantial assistance” can tolerate subjectivity to an extent which normally would be impermissible for penal statutes. Cf. Linville v. State, 359 So.2d 450 (Fla. 1978) (statutory definition of proscribed activity held unconstitutionally vague). The contested phrase, in any event, is susceptible of common understanding in the context of the whole statute. Schultz v. State, 361 So.2d 416 (Fla.1978). There is no due process infirmity.

4. Equal Protection

Appellees’ suggestion that subsection (3) denies equal protection of the law to convicted defendants who cannot provide “substantial assistance” to law-enforcement officials is patently without merit. This legislation manifestly passes the rational basis test. See Hamilton v. State, 366 So.2d 8 (Fla.1978).

5. Separation of Powers

Two basic arguments by appellees are directed at Florida’s constitutional separation of governmental powers. Art. II, § 3, Fla.Const. First, they assert that subsection (3) encroaches on the Court’s rule-making role, Art. V, § 2(a), Fla.Const., in that it conflicts with Rule 3.800(b), Rule 3.720(b), and Rule 3.171 of the Florida Rules of Criminal Procedure. The statute differs from these rules, of course, but it in no way so conflicts with them as to offend the constitution.

Rule 3.800(b) permits the reduction of legal sentences, yet since it specifically excludes minimum mandatory sentences from its operation, its procedures obviously are not incompatible with section 893.135. Likewise, Rules 3.720(b) and 3.171 do not pose any obstacle to the operation of section 893.135. Rule 3.720(b) provides that at a sentencing hearing, the court shall “[e]ntertain submissions and evidence by the parties which are relevant to the sentence .... ” Subsection (3) states that “[t]he arresting agency shall be given an opportunity to be heard in aggravation or mitigation in reference to any [motion for reduction or suspension of sentence].” The statute does not explicitly exclude the defendant from submitting evidence in his behalf, and it does not offend the statutory scheme to afford him that right. Finally, applicable procedural safeguards in Rule 3.171 can be afforded to defendants, to the extent they do not conflict with the explicit language of subsection (3). No infirmity of constitutional dimension attends the omission of those that do.

Appellees’ second argument premised on the constitutional separation of powers is that subsection (3) usurps the sentencing function from the judiciary and assigns it to the executive branch, since the benefits of subsection (3) are triggered by the initiative of the state attorney. Under the statute, the ultimate decision on sentencing resides with the judge who must rule on the motion for reduction or suspension of sentence. “So long as a statute does not wrest from courts the final discretion to impose sentence, it does not infringe upon the constitutional division of responsibilities.” People v. Eason, 40 N.Y.2d 297, 301, 386 N.Y.S.2d 673, 676, 353 N.E.2d 587, 589 (1976) (emphasis in original) (rejecting a separation of powers attack on a similar provision in New York’s drug laws).

6.Self-incrimihation

Finally, the appellees argue that section 893.135 coerces a defendant into relinquishing his fifth amendment privilege against self-incrimination by denying him sentencing leniency unless he cooperates with the authorities. We reject this argument, primarily because it depends on unwarranted assumptions about the nature of the informer’s disclosures. Nothing in the statute suggests that “substantial assistance” must incriminate the defendant of crimes other than those for which he has already been convicted (and for which no fifth amendment privilege is obviously necessary). We acknowledge the risk of prosecution in other jurisdictions. Nonetheless, a defendant need not invoke subsection (3), as nothing in the statute is compulsive. Putting a defendant to a difficult choice is not necessarily forbidden by the fifth amendment. See, e. g., Corbitt v. New Jersey, 439 U.S. 212, 218, 99 S.Ct. 492, 497, 58 L.Ed.2d 466 (1978) (“[N]ot every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such a right, is invalid.” (footnote omitted)); Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971). No constitutional deprivation results if a defendant elects to reap the benefits of subsection (3).

With respect to those cases which say that the trial courts may not enhance a sentence based on a defendant’s failure to cooperate with the authorities, see United States v. Garcia, 544 F.2d 681 (3rd Cir. 1976); United States v. Acosta, 501 F.2d 1330 (5th Cir. 1974) (Gee, J., dissenting), adopted en banc, 509 F.2d 539 (5th Cir.), cert. denied, 423 U.S. 891, 96 S.Ct. 188, 46 L.Ed.2d 122 (1975); United States v. Rogers, 504 F.2d 1079 (5th Cir. 1974), cert. denied, 422 U.S. 1042, 95 S.Ct. 2655, 45 L.Ed.2d 693 (1975), we believe that Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980), went a long way toward resolving this issue against ap-pellees. The Court in Roberts concluded that the district court properly considered the defendant’s refusal to cooperate as one factor in imposing consecutive sentences. Admittedly, a fifth amendment claim was not properly raised in Roberts and “would have merited serious consideration” if it had been. Id. at 559, 100 S.Ct. at 1364. We conclude, however, that for fifth amendment purposes the situation in Roberts is distinguishable from that here. A sentence reduction obtained by a sentenced convict due to his cooperation is not tantamount to the enhancement of a sentence imposed on an unsentenced, but convicted defendant as a result of his lack -of cooperation. The former is no different from a gratuitous sentence reduction offered to one already incarcerated who, even without statutory sanction, risks reincrimination in exchange for early release benefits.

Our disposition of appellees’ challenges obviates the need to consider the severability of subsection (3) from the statute. We hold that section 893.135 is constitutional. The order of the trial court is reversed, and the case is remanded for further proceedings.

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

      . Art. 1, § 17, Fla.Const.

      . U.S.Const. amend. VIII.

      . Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).


text:
    STATE of Florida, Petitioner, v. James Edward WILSON, Respondent.
    No. 58429.
    Supreme Court of Florida.
    Feb. 19, 1981.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for petitioner.

      No appearance, for respondent.
   ENGLAND, Justice.

On December 21, 1979, the First District Court of Appeal approved James Wilson’s collateral attack by way of motion for post-conviction relief on a five-year sentence of burglary to which Wilson pled guilty. The basis for the district court’s action was a failure of the trial court to advise Wilson of a mandatory minimum three-year sentence for the crime to which he had pled guilty, a requirement recently imposed by Florida Rule of Criminal Procedure 3.172(c)(i).

We find it unnecessary to pass on the legal questions raised in the district court. The record before us clearly shows that counsel for the state advised the court during the sentencing proceeding, with Mr. Wilson present:

“For the record, the sentence is a three-year mandatory sentence,”

which the court acknowledged on the record by saying:

“That’s right.”

The requirement of Rule 3.172(c)(i) is met when the record conclusively demonstrates that the defendant was apprised of the mandatory minimum penalty provided by law. Obviously, the sentence was properly imposed following Wilson’s plea of guilty.

The decision of the district court is quashed and this case is remanded for further proceedings.

It is so ordered.

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

      . Fla.R.Crim.P. 3.850.

      . Wilson v. State, 378 So.2d 1258 (Fla. 1st DCA 1979). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

      . See The Fla. Bar Re Fla. Rules of Criminal Procedure, 343 So.2d 1247 (Fla. 1977). Prior to the adoption of Rule 3.172(c)(i), there was no requirement under Florida law that a defendant be advised of any mandatory minimum sentence. See, e.g., Knowles v. State, 356 So.2d 885 (Fla. 3d DCA 1978).


author: SUNDBERG, Chief Justice. ADKINS, Justice,

text:
    PEOPLES BANK OF INDIAN RIVER COUNTY (proposed new bank), Appellant, v. STATE of Florida, DEPARTMENT OF BANKING AND FINANCE, and Gerald A. Lewis, as Comptroller and Head of the Department, Appellees.
    No. 58551.
    Supreme Court of Florida.
    Feb. 26, 1981.

      Larry Levy of Dickinson, Levy & Taylor, Tallahassee, for appellant.
    S. Craig Kiser, Gen. Counsel, and Karlyn Anne Loucks, Asst. Gen. Counsel, Tallahassee, for appellees.
   SUNDBERG, Chief Justice.

Appellant seeks review of the Department of Banking and Finance’s denial of its application for a banking license under chapter 659, Florida Statutes (1977). The appellant attacks the constitutionality of section 659.03 and section 120.60(3), as amended in 1978, of the Florida Statutes, and alleges that the agency improperly considered certain material without affording the appellant an opportunity to refute it. The District Court of Appeal, First District, sustained the agency action and in doing so initially and directly passed on the constitutional issues asserted. See Peoples Bank of Indian River County v. Department of Banking and Finance, 378 So.2d 328 (Fla. 1st DCA 1980). Appellate review of the district court decision is sought in this Court pursuant to article V, section 3(b)(1), Florida Constitution (1972).

The appellant filed an application with the Department of Banking and Finance on July 1, 1978, for authority to organize and operate a new bank on the west side of U.S. Highway # 1 South, 0.6 miles south of the Indian River Drive intersection in Sebastian, Florida. Pursuant to section 659.03(1), Florida Statutes, a preliminary investigation was conducted by the Department’s financial investigations coordinator, followed by a field examination of the application conducted by a state financial depository examiner. The examiner submitted his report to the Department on January 16, 1979. In a lengthy order issued March 26, 1979, the Comptroller rejected the appellant’s bank application, stating that the statutory criteria set forth in subsections 659.03(2)(a), (b), (e) and (f) were not met. Only the criteria found in subsections (a) (“public convenience and advantage will be promoted by the establishment of the proposed bank”) and (b) (“local conditions assure reasonable promise of successful operation for the proposed bank”) were fatal to the application since they were, according to the Comptroller, the only unsatisfied circumstances which could not be remedied by the appellant. The appellant obtained judicial review of the agency order in the district court below. The district court upheld the agency, resulting in the appeal to this Court.

Appellant contends first that section 659.03 does not contain sufficient standards to guide agency action in determining whether to grant an application for a banking license and, therefore, constitutes an improper delegation of legislative authority to the Department. We considered and rejected the same argument in our recent decision in Bigler v. Department of Banking, 394 So.2d 989, (Fla. 1981). We likewise reject appellant’s argument based on this authority.

The appellant argues that section 120.-60(3)(a)2 of the Administrative Procedure Act violates equal protection of the law and procedural due process by requiring banking applicants to request a hearing within twenty-one days of publication of notice of the banking application in the Florida Administrative Weekly. The appellant contends that it should be permitted to request a hearing after learning that there are disputed issues of material fact.

Although the legislature might have more logically provided for a hearing request at a later stage in the informal proceedings, this does not mean that the legislature’s failure to do so deprives appellant of its constitutional rights. The statutory language gives plain notice that an applicant or any party wishing to challenge the application must either request a hearing within twenty-one days or waive any right to a hearing. Subsection 120.60(3) provides:

In proceedings for the issuance, denial, renewal, or amendment of a license or approval of a merger pursuant to title XXXVI or title XXXVII:
(a) 1. The Department of Banking and Finance shall have published in the Florida Administrative Weekly notice of the application within 21 days of receipt.
2. Within 21 days of publication of notice, any person may request a hearing, which upon request shall be conducted pursuant to s. 120.57 except that the Department of Banking and Finance shall by rule provide for participation by the general public; provided, however, that failure to request a hearing within 21 days of publication of notice shall constitute waiver of any right to a hearing.

The legislature may determine by what process and procedure legal rights may be asserted and determined provided that the procedure adopted affords reasonable notice and a fair opportunity to be heard before rights are decided. Goodrich v. Thompson, 96 Fla. 327, 118 So. 60 (1928). Here the appellant was afforded such an opportunity before agency action affecting its rights were taken. Indeed, in a sense the statutory criteria listed in section 659.-03(2) are, until established, “disputed” facts since the applicant for a license has the burden of showing that he has satisfied them and is therefore entitled to a bank charter. Fraser v. Lewis, 360 So.2d 1116 (Fla. 1st DCA 1978); Florida Administrative Code Rule 3C-10.051. See Stewart Bonded Warehouse, Inc. v. Bevis, 294 So.2d 315 (Fla.1974). The appellant cannot at this late date claim that it was denied due process because the agency acted adversely on its application.

We also reject the appellant’s equal protection attack on subsection 120.-60(3)(a)2. A statute is presumed constitutional. Hamilton v. State, 366 So.2d 8 (Fla. 1978). The party challenging a statute has the burden of establishing its invalidity. Milliken v. State, 131 So.2d 889 (Fla.1961). In our opinion the appellant in this case has not carried its burden in establishing why the time requirements imposed under subsection 120.60(3)(a)2 should rationally apply to other license applicants if it is to be constitutionally applied to applicants for a banking license. We hold that subsection 120.60(3)(a)2 is constitutional.

Finally, the appellant argues that the Department’s finding with regard to subsection 659.03(2)(b) must be vacated since the Department relied in part on University of Florida population data not in-eluded in the banking application or in the field examiner’s report. The district court held that the Department erred in considering data not in the record in deciding that local conditions did not assure reasonable promise of successful operation for the appellant bank and other banks already operating in the area. The district court held, however, that the error was harmless error, citing School Board of Broward County v. Gramith, 375 So.2d 340 (Fla. 1st DCA 1979), and Polk v. School Board of Polk County, 373 So.2d 960 (Fla. 2d DCA 1979). We agree with the cited authorities’ conclusion that a harmless error rule for review of agency action is suggested under section 120.68(8) of the Administrative Procedure Act and that such rule is comparable to the harmless error rule applied in appellate review of lower court decisions. We also agree with the district court that the appellant failed to show that it was substantially prejudiced by the Department’s consideration of the University of Florida population figures since there was substantial competent evidence apart from this data to support the finding. The Department is given wide discretion in determining whether the criterion of subsection 659.03(2Xb) is satisfied since the determination involves policy considerations within the Department’s specialized expertise as well as “pure” factfind-ing. See McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), cert. denied, 368 So.2d 1370 (1979).

The Department nonetheless maintains that the disputed population data was properly considered by the Department since it was identified in the final order as a basis for its action and was therefore a part of the record for judicial review pursuant to section 120.68(5)(c), Florida Statutes. See also §§ 120.57(l)(b)5 & 7, and (2)(b), Fla. Stat. We agree that pursuant to these statutory provisions material which is administratively noticed is part of the record for judicial review. But this begs the question of whether the population data is a proper subject for official or administrative notice in the first place. We are not, however, called upon in this case to determine the permissible reach of official notice or the circumstances under which an agency may take official notice of material acting either sua sponte or upon request of a party ; for we hold that- any material or information which may have been properly noticed must nonetheless have been available to the parties for rebuttal at some stage of the agency proceedings. See United States v. Pierce Auto Freight Lines, 327 U.S. 515, 66 S.Ct. 687, 90 L.Ed. 821 (1946); National Labor Relations Board v. Johnson, 310 F.2d 550 (6th Cir. 1962); Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1977); Thorn v. Florida Real Estate Commission, 146 So.2d 907 (Fla. 2d DCA 1962).

Accordingly, we affirm the decision of the District Court of. Appeal, First District.

It is so ordered.

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

ADKINS, J., dissents with an opinion.

ADKINS, Justice,

dissenting.

I dissent for the reasons expressed in my dissenting opinion filed in Bigler v. Department of Banking and Finance, 394 So.2d 989 (Fla.1981).

In my opinion the decision of the district court of appeal should be quashed.

      . Ch. 78-425, § 8, Laws of Florida.

      . See Greyhound Corp. v. Carter, 124 So.2d 9 (Fla.1960). In reaching its finding in the case at bar the Department, as noted by the district court, also considered the industry in the area, local employment and salary statistics, the location of the proposed bank in relation to existing banks, the quality and size of residential areas near the proposed site and past growth rates of existing banks in the immediate area.

      . As a result of administrative supervision over the field of banking, bank failures have virtually been eliminated. For a discussion of the commercial banking industry, see generally United States v. Philadelphia Nat’l Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963).

      . The Administrative Procedure Act states only that “[w]hen official notice [of certain material] is requested, the parties shall be notified and given an opportunity to examine and contest the material.” § 120.61, Fla.Stat.

      . The Department notes in its brief that the agency considers population figures from the Division of Population Studies, University of Florida, in every application for a bank since it is the only state agency preparing population figures, and local planning departments and chambers of commerce are less reliable because their figures reflect biases of the preparing agency. If, as it appears, the Department intends to adopt a policy of general applicability, the Department must promulgate the policy as a rule “to close the gap between what the agency and its staff know about the agency’s law and policy and what an outsider can know.” McDonald v. Department of Banking and Fin., 346 So.2d 569, 580 (Fla. 1st DCA 1977) (quoting Professor Kenneth Davis). See § 120.52(14), Fla.Stat.


author: ADKINS, Justice.

text:
    Henry Lee CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 57125.
    Supreme Court of Florida.
    March 5, 1981.

      Jack 0. Johnson, Public Defender, and Thomas J. Sherwood, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appel-lee.
   ADKINS, Justice.

On February 20,1979, appellant entered a plea of nolo contendere to charges of introducing contraband into a correctional or penal institution in violation of section 944.-47, Florida Statutes (Supp.1978), and possession of marijuana in violation of section 893.13(l)(e), Florida Statutes (1977). On April 19, 1979, appellant was sentenced to six months in the county jail for introducing contraband into a prison, but the trial court considered the act as a single transaction so did not impose a sentence on the possession charge. Appellant reserved the right to appeal denial of the motion to dismiss, attacking the constitutionality of section 944.47, and the motion to suppress evidence of illegally-seized contraband.

Appellant was a correctional officer at Polk Correctional Institution for approximately six months. On the morning of November 6,1979, the chief security officer, Major Dobson, authorized a “shakedown” search of all employees coming on duty for the second shift. The Department of Corrections Administrative Rules and Regulations, chapter 33-4.02(8), warns that a prison employee shall not refuse to submit to a search which may be conducted when he is entering, departing, or otherwise upon the premises of the institution. Major Dobson testified that the shakedown searches are ordered at random intervals to keep employees from bringing contraband into the facility. The search consists of a pat-down of the outer body after employees remove shoes and jackets.

As the correctional officers came on duty, they were searched in a private office, where they then searched other arriving employees. Sergeant Crews searched the appellant and discovered two marijuana cigarettes rolled up in one sock. Appellant said they were for his own use, removed the sock, and handed the sock and cigarettes to Sergeant Crews. Major Dobson was notified, and he fired the appellant. Two days later the appellant was arrested.

Appellant argues that the trial court should have dismissed this case because section 944.47 is unconstitutionally vague and overbroad, and that it unlawfully delegates authority to the prison administration. Appellant also maintains that it was error to deny the motion to suppress when appellee had not presented testimony to establish the reasonableness of the warrantless search.

Section 944.47, Florida Statutes, is not overbroad as applied to appellant, so he cannot challenge it on those grounds. Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So.2d 881 (Fla.1972); Sandstrom v. Leader, 370 So.2d 3 (Fla.1979). Appellant’s conduct was not wholly innocent so he could only assert that over-breadth had a chilling effect on his First Amendment freedoms; however, he does not make that assertion. Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975). When appellant brought marijuana into the prison, his conduct was clearly illegal and proscribed in understandable terms. Therefore, he cannot challenge the statute as overbroad because it criminalizes legal as well as illegal activity. State v. Ashcraft, 378 So.2d 284 (Fla.1979). Appellant has not presented an example of selective enforcement which he claims results from overbreadth. He does not show that he alone was arrested while other people who brought marijuana into the prison were not arrested. For these reasons, appellant does not have standing to challenge section 944.47 as overbroad.

Section 944.47 is not an unreasonable or unlawful delegation of legislative power to the executive branch. 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). Prison officials in Jones considered the concept of a prisoners’ labor union fraught with potential dangers, and refused to allow recruitment within the North Carolina prison. The United States Supreme Court found that the administrators could lawfully prohibit labor union solicitation because the restriction was consistent with the legitimate operational considerations of the prison, and did not violate the prisoners’ First or Fourteenth Amendment rights.

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. The prison administration acted clearly within the legislative guidelines when it kept marijuana from being introduced freely into the prison.

Appellant asserts that the trial court erred in denying its motion to suppress without hearing testimony from the state. The marijuana was discovered in a warrant-less search, and since the state did not proffer any exception to the warrant requirement, the search allegedly violated appellant’s Fourth Amendment rights. The trial court said that appellant’s “special classification” as a prison guard made the search reasonable, and he heard no testimony from the state before denying appellant’s motion to suppress evidence.

A prison entrance is the functional equivalent of a border because it is an official boundary where traffic may conveniently be stopped and inspected. An inspection may reveal contraband, enabling officials to stop contraband at the border instead of having to detect illegal goods once dispersed inside the border. The inspection, however, must be reasonable and must not violate Fourth Amendment rights of the individual who crosses the boundary.

A balancing test is used to determine reasonableness of border searches. In United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), the degree of intrusion into individual freedom was weighed against the public interest protected by the search. A border search of an automobile in that case involved only minimal intrusion: a stop, brief visual inspection, and a few questions. The reasonableness of a border search in United States v. Himmelwright, 551 F.2d 991 (5th Cir. 1977), cert. denied, 434 U.S. 902, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977), depended upon the balance struck between the level of official intrusion and the public interest to be served by such an intrusion. There the Court found that a strip search at an airport was reasonable in light of the public interest in stemming drug traffic into the United States.

The shakedown search of appellant involved only minimal intrusion compared with the state’s interest in keeping contraband out of the prison. As guards came to work, they were asked to remove from their pockets any articles which they wished to claim, and to take off jackets and shoes. A pat-down ensued, and only occasionally was any other item of clothing removed. The chief security officer at the Polk Corree-tional Institution testified that similar shakedowns occur at other Florida prisons where he has worked.

The balancing test is appropriate in appellant’s case, and wé find that a prison guard’s right to be free from random shakedown searches does not outweigh the state’s interest in preventing the flow of contraband into prisons. A prison guard’s expectation of privacy is extremely limited by the environment that he or she chooses to work in. One can only expect to be free from intrusion where there is a reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1976). The United States Supreme Court noted in Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962), that a prison shares none of the privacy of a home, an office, or an automobile. “In prison, official surveillance has traditionally been the order of the day.” 370 U.S. at 143, 82 S.Ct. at 1220. Lanza dealt with electronically intercepted and recorded conversations between a prisoner and his brother.

Lanza has been applied to a reformatory guard who attempted to smuggle marijuana into an Oklahoma reformatory. United States v. Kelley, 393 F.Supp. 755 (W.D.Okl.1975). In Kelley the Court correctly emphasized that the guard could not expect to be free from searches when he had worked in the reformatory for years, and each day he had passed two signs warning that all persons and packages were subject to search.

In United States v. Sihler, 562 F.2d 349 (5th Cir. 1977), a sign on the main prison entrance warned of prosecution for bringing in contraband. Marijuana was found when a prison guard was searched, and the search was held valid because the guard passed the sign every day. Further, when the guard was hired he was advised not to bring contraband into the prison, and he had heard of instances where persons entering the prison were routinely searched. Under those circumstances, the Court held that the guard consented to search as a condition of employment and access to the prison, and that it was a reasonable security measure to require such consent. See, e. g., Shaw v. Hutto, 22 Cr.L. 2021 (E.D.Va.1971).

While it is uncertain whether the appellant signed a consent form, his consent to search may be implied from his reporting to work at the prison when he knew the search procedures used. All new employees at Polk Correctional Institution routinely receive a booklet from the Department of Offender Rehabilitation containing personnel rules and regulations. The booklet describes the prison security measures and gives rules for security checks of the guards. In addition, the chief security officer stated that he briefed the appellant on shakedown searches when the appellant first came to work at the prison. In his year of employment at the Polk Institution, the chief security officer had conducted three or four shakedowns at random intervals. Since the appellant had been employed for approximately six months, it is probable that he had seen or even participated in a prior shakedown. The chief security officer could not recall specifically whether the appellant had been shaken down before.

Appellant argues that a prison guard’s Fourth Amendment rights should not be equated with those of a prisoner simply because the guard works in a prison. The mere pat-down search of the appellant did not approach the allowable degree of intrusion into a prisoner’s rights. United States v. Lilly, 576 F.2d 1240 (5th Cir. 1978) (Prisoner may be subjected to a body cavity search without probable cause). However, stringent control of contraband is crucial for the safety of guards as well as prisoners. Strict methods to effect this control must apply, in some degree, to all who enter a prison.

Appellant suggests that less intrusive means of control should be used: electronic surveillance or increased use of investigatory personnel to watch prison employees. These methods would cost more money and require more personnel, compounding two of the prison system’s greatest problems. A shakedown search is quick, effective, and inexpensive. It is less intrusive than constant surveillance.

The warrantless shakedown search of appellant did not violate his Fourth Amendment rights. The trial court did not err in denying the motion to suppress evidence recovered during the shakedown. We affirm.

It is so ordered.

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


author: OVERTON, Justice.

text:
    UNITED STATES FIDELITY & GUARANTY COMPANY, a Maryland Corporation, Petitioner, v. Fred CURRY, Jr., and Fidelity & Casualty Company of New York, Respondents.
    No. 57382.
    Supreme Court of Florida.
    March 5, 1981.
    Peters, Pickle, Flynn, Niemoelier,. Stieglitz & Hart and Jeanne Heyward, Miami, for petitioner.
    Fred G. Prichason of Silverstein & Pri-chason, Miami Beach, Frank Amigo, Fort Lauderdale and Victor J. Dirsé, North Miami, for respondents.
   OVERTON, Justice.

This petition for writ of certiorari seeks review of the decision of the District Court of Appeal, Third District, reported at 371 So.2d 677 (Fla.3d DCA 1979), which allows an injured driver of a leased motor vehicle to stack uninsured motorist provisions of both his personal policy and the lessor’s policy. We find conflict with Government Employees Insurance Co. v. Taylor, 342 So.2d 547 (Fla.1st DCA), cert. denied, 353 So.2d 680 (Fla.1977), and other recent cases. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

The facts are not disputed. Fred Curry, Jr., was an employee of Grand Union Stores, Inc., which leased vehicles from A-l Truck & Trailer Rentals, Inc. (A-l). On April 1, 1976, Curry, while operating a leased vehicle in the course of his employment, was struck by a negligent driver, Neysa Walsh. Walsh was insured, but because of liability payments to other claimants, only $11,000 of her $15,000/$30,000 liability coverage was available to Curry. Curry had personal automobile liability insurance with Fidelity & Casualty Company of New York, which included uninsured motorist coverage in the amount of $15,-000/$30,000. United States Fidelity & Guaranty Company (U. S. F. & G.) provided $15,000 uninsured motorist coverage to A-l, and Curry made a demand upon this coverage as an underinsured pursuant to section 627.727. U. S. F. & G. filed for a declaratory judgment against Curry and Fidelity & Casualty Company. The trial court found that Curry was entitled to stack the uninsured/underinsured motorist benefits provided by both U. S. F. & G. and Fidelity & Casualty Company (set off by the $11,000 settlement from Walsh’s carrier). Upon appeal, the Third District Court of Appeal agreed that such stacking was permissiblé and expressly rejected the reasoning and holding of the First District Court of Appeal in Taylor.

The issue we must decide is whether stacking of uninsured motorist policies is allowed under the facts of this case by section 627.727(2) as it existed in 1976. Section 627.727(2), Florida Statutes (1975), concerns uninsured motorist coverage and reads in part as follows:

(2) For the purpose of this coverage, the term “uninsured motor vehicle” shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle when the liability insurer thereof:
(b) Has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist’s coverage. [Emphasis added.]

The underlined words are critical for this question of stacking in the case of a permissive user of a vehicle. In applying this statute in Taylor, the First District Court of Appeal limited stacking to policies in which the injured person was the insured and excluded from stacking any other policy of which the injured person was a beneficiary. The court construed the word “his” as used in this statute to limit the stacking of applicable coverage to policies owned by the injured person and to exclude from such stacking injured persons who are only beneficiaries of a policy.

The Third District in the instant case disagreed with this construction of the 1975 statute and held that Curry was protected by more than one policy containing uninsured motorist coverage by virtue of being a beneficiary of the owner’s policy.

While not applicable to this 1976 accident, it is noted that shortly after Taylor, and perhaps in response to the decision, the legislature amended the critical language to conform to the Third District’s interpretation of the statute.

Approximately eight months after the Taylor decision, the First District, in Main Insurance Co. v. Wiggins, 349 So.2d 638 (Fla.1st DCA 1977), expressly receded from its exclusion of an insured’s family members from the provisions of section 627.-727(2), Florida Statutes (1975). It based its decision on Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla.1971), and Hunt v. State Farm Mutual Insurance Co., 349 So.2d 642 (Fla.1st DCA 1977). However, the district court in Wiggins continued to exclude nonfamily occupants of an insured vehicle from stacking coverage under section 627.727(2), holding that the legislature did not intend to extend coverage to persons not related to the policyholder.

We find that this interpretation has no support in either the statute or our decision in Mullís. The distinction Mullís made between injured persons unrelated and related to the named insured has no bearing on either Taylor or the instant case since Mul-lís merely stated the obvious: unrelated persons are “protected only if they receive bodily injury due to the negligence of an uninsured motorist while they occupy the insured automobile of the named insured with his permission or consent.” 252 So.2d at 233. This statement was necessary in light of the holding of Mullís concerning persons related to the named insured: namely, that they need not be occupying an insured automobile in order to have uninsured motorist coverage.

Chief Judge Grimes of the Second District Court of Appeal correctly drew the line between classes of insureds concerning stacking coverage in Cox v. State Farm Mutual Automobile Insurance Co., 378 So.2d 330 (Fla.2d DCA 1980):

State Farm’s reliance upon the Mullís distinction between insureds who are named in the policy or who are resident relatives of the named insured and those who are lawful occupants of the insured vehicle is misplaced. While, it is true that in Travelers Insurance Co. v. Pac, 337 So.2d 397 (Fla.2d DCA 1976), this court prohibited the stacking of uninsured motorist coverage available to a person who achieves his status as an insured only by driving his employer’s vehicle (the second class of insureds under Mullís), there was nothing in the Pac decision which prevented the claimant from adding the uninsured motorist coverage provided by his employer on the one vehicle he was driving to the uninsured motorist coverage available under his personal policy. In the instant case we are not talking about “stacking” in its traditional sense. “Stacking” ordinarily occurs when an injured person within the first class of insureds pyramids coverage to the extent of the number of vehicles on which the named insured has obtained coverage. [Citations omitted.] Here, Ms. Cox seeks only to add the owner’s coverage on the vehicle she was driving to the limits of the coverage under her personal policy. The named insureds in each policy are entirely different.

Id. at 332-33 [footnotes omitted].

In summary, we believe the legislature intended to allow this type of stacking. To construe the statute as set forth in the Taylor-Wiggins dichotomy produces inequitable results clearly not intended. We approve the decision of the Third District in the instant case and disapprove Taylor, as modified by Wiggins.

It is so ordered.

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

      . Subsequently, the Second and Fourth District Courts of Appeal have followed the Third District and rejected the Taylor view. Cox v. State Farm Mut. Auto. Ins. Co., 378 So.2d 330 (Fla.2d DCA 1980); Lezcano v. Leatherby Ins. Co., 372 So.2d 214 (Fla.4th DCA 1979).

      . Chapter 77-468, section 30, Laws of Florida, amended the relevant language of section 627.-727, Florida Statutes (Supp.1976), to read:
      (3) For the purpose of this coverage, the term “uninsured motor vehicle” shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle when the liability insurer thereof:

      (b) Has provided limits of bodily liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist’s coverage, applicable to the injured person.