author:
ADKINS, Justice.
      McDONALD, Justice,

text:
    STATE of Florida, Petitioner, v. Frank J. BRADY, et al., Respondents.
    No. 59054.
    Supreme Court of Florida.
    Oct. 15, 1981.
    Rehearing Denied Jan. 8, 1982.

      Jim Smith, Atty. Gen. and Robert L. Bo-gen, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Robert W. Foley and Philip G. Butler, Jr. of Foley & Colton and Janet W. Freeman, West Palm Beach, for Frank J. Brady.
    Steven M. Greenberg of Pertnoy & Greenberg, Miami, for Ronald B. Elliot and Philip M. Eckart.
    Joel S. Fass of Colodny & Fass, North Miami, for Hermogenes Manuel.
    Alan I. Karten, Miami, for David List.
   ADKINS, Justice.

By petition for certiorari, we have for review a decision of the District Court of Appeal, Fourth District (State v. Brady, 379 So.2d 1294 (Fla. 4th DCA 1980)), which expressly and directly conflicts with a prior decision of the District Court of Appeal, First District (Aylin v. State, 362 So.2d 435 (Fla. 1st DCA (1978)). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

Respondents, Frank J. Brady, Philip M. Eckard, and Ronald B. Elliot, were arrested and charged with delivery of marijuana in excess of 100 pounds, possession of marijuana in excess of 100 pounds, conspiracy to possess marijuana in excess of 100 pounds, and importation of marijuana. Respondents, David A. List and Hermogenes Manuel were charged with attempted possession of marijuana in excess of 100 pounds.

On the day prior to the arrest, the Martin County Sheriff’s Office was given information indicating that one or two airplanes carrying contraband might land at respondent Brady’s ranch. The information, relayed to the sheriff’s department at approximately 2 p. m. that day, included the call numbers of the two aircraft. That evening, officers took up surveillance of the Brady ranch from the adjoining property, but the planes never arrived and eventually the watch was abandoned. The next day, again around 2 p. m., another tip was received, again indicating that a plane would land in the evening and so law enforcement personnel staked out the property once more. In order to position surveillance groups around the ranch’s airfield, deputies were forced to cross a dike, ram through one gate and cut the chain lock on another, cut or cross posted fences, and proceed several hundred yards to their hiding places. When the plane finally landed, the officers had to proceed the remaining few hundred yards to the aircraft in order to definitely ascertain what was going on and then make the arrests and seize the marijuana being transferred.

Asserting that the search and seizure operation was improper because the authorities failed to first obtain a warrant, each respondent filed a motion to suppress the evidence taken. The trial court granted the motions, whereupon petitioner filed a notice of appeal of said order. Petitioner also filed a motion for extension of speedy trial pending appellate proceedings, which was granted.

Shortly after the preceding, respondents List and Manuel filed a motion for speedy trial discharge which the trial court granted. Petitioner appealed the order granting the discharge and said appeal was consolidated with that from the order suppressing the evidence seized. The District Court of Appeal, Fourth District, affirmed the order granting the motion to suppress but reversed the order granting the motion for discharge. Petitioner then invoked the discretionary jurisdiction of this Court to review the district court’s decision.

We first consider whether the trial court was correct in granting the motions to suppress. Petitioner contends that under the “open fields doctrine” of Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), respondent’s Fourth Amendment protections do not extend to activity conducted in “open fields”, and therefore that the authorities need not have obtained a warrant in order to conduct a legal search.

In Hester, revenue agents observed from across a field an exchange of moonshine whiskey in front of the defendant’s residence. The defendant was arrested and convicted of concealing distilled spirits and on appeal contended that his rights under the Fourth and Fifth Amendments to the United States Constitution were violated by the trial court’s refusal to exclude the revenue agents’ testimony concerning what had occurred in the field. The United States Supreme Court, in affirming the conviction, ruled that “the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects’ is not extended to the open fields.” Id. at 59, 44 S.Ct. at 446.

Petitioner argues that the open fields doctrine remains viable, and that there is no constitutionally protected reasonable expectation of privacy in an open field. Although the Hester opinion has not been overruled, subsequent opinions indicate that the open fields doctrine cannot be used as carte blanche for a warrantless search simply because the location searched is not part of a dwelling or its adjacent curtilage. As the Court later observed in its opinion in Katz v. United States, 389 U.S. 347, 350-52, 88 S.Ct. 507, 510-11, 19 L.Ed.2d 576 (1967):

[T]he correct solution of Fourth Amendment problems is not necessarily promoted by incantation of the phrase “constitutionally protected area.”
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For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

(citations omitted).

In his concurrence in Katz, Justice Harlan suggested the following two-part test for determining whether Fourth Amendment protections are warranted in a particular situation:

As the Court’s opinion states, “the Fourth Amendment protects people, not places.” The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a “place.” My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as “reasonable.” Thus a man’s home is, for the most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the “plain view” of outsiders are not “protected” because no intention to keep them to himself has been exhibited.

Id. at 361, 88 S.Ct. at 516.

Under the reasoning of Katz, if the owner or occupier of a field seeks to keep it private and demonstrates an actual intention to do so, and his expectation is one that society is willing to recognize as reasonable, then Fourth Amendment protections extend to activities in that field.

In determining whether the “twofold requirement” for Fourth Amendment protection is met here, we find helpful our opinion in Norman v. State, 379 So.2d 643 (Fla.1980).

In Norman, a defendant convicted of possessing cannabis contended that evidence introduced at his trial was inadmissible because it had been discovered during an unauthorized search of his farm. The local sheriff, on the basis of information received from a confidential informant, had gone to the defendant’s farm, climbed a fence by a locked gate, and walked 250 yards to a barn in which he saw a substance which he identified as marijuana. He then ordered surveillance of the farm to determine who came and left. Several days later a deputy watching the place saw a man in a truck enter through the gate, drive to the barn and later, loaded with hay, drive back to the highway and into a field. The deputy detained the driver of the truck, the defendant, and took him to the sheriff’s office where he was placed under arrest.

One of the points raised on appeal in Norman was whether the unauthorized search of the farm violated the defendant’s Fourth Amendment rights. The state contended that the sheriff’s search of the farm was justified under the open fields doctrine. We disagreed, holding that the defendant’s right against unreasonable searches and seizures was violated, and observing as follows:

It seems incontestable that Mr. Norman exhibited a subjective expectation of privacy in the tobacco barn and its contents. He took overt steps to designate his farm and barn as a place not open to the' public. The contraband, covered and wrapped in tobacco sheets, was in a closed structure. The farm itself was fenced, and the gate to the fence was kept locked.
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The district court’s reliance below on the “open fields” doctrine as enunciated in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), was misplaced. Hester stands for the unremarkable proposition that the fourth amendment’s protection of one’s person, house, papers and effects does not extend to the open fields. Whatever the precise parameters of this long-standing but seldom-used doctrine, it certainly does not extend to a warrantless search of a closed structure on fenced property.

Id. at 647 (emphasis added). Our opinion in Norman made it clear that fences and locked gates are evidence of the owner’s or possessor’s expectation of privacy.

Obviously there are distinctions between the facts in Norman and those in the ease sub judice. The former involved a warrantless search of a closed structure, the latter a search in a field. The contraband in Norman was inside the barn and covered with tobacco sheets, while that in the case at hand, at the time of seizure, was being transferred from an airplane to several waiting vehicles. Such distinctions aside, however, the comments in Norman regarding evidence of an expectation of privacy still have relevance here. In Norman, we emphasized that “[t]he farm itself was fenced, and the gate to the fence was kept locked.” Later, we reiterated that the barn was “on fenced property.” The opinion clearly indicated that the enclosure and locking of the gate was significant and influenced our decision. The property in the case sub judice was not only fenced and locked, but was also surrounded by a dike and posted. Respondent unmistakably evidenced an expectation of privacy.

Having decided that respondent clearly demonstrated an expectation of privacy, we now consider the second part of the Katz test: whether the expectation was one that society is prepared to recognize as reasonable. We find, under the facts of this case, that it was. Respondent, as noted before, fenced, locked, diked and posted his property. At the time of his arrest, he was at a spot remote from any entry point to the property. He was, in fact, so remotely located that the arresting authorities, after crossing the dike and fences, had to traverse several hundred yards of field in order to get close enough to see what was going on.

We think the facts are similar to those in United States v. Holmes, 521 F.2d 859 (5th Cir. 1975), in which the government appealed an order granting motions to suppress marijuana seized in a warrantless search. The government argued that the owners of the shed which had been searched had no reasonable expectation of privacy because there were no fences surrounding any part of the property (which was quite remote), no “no trespassing” signs posted, nor any sign of a special effort having been made to conceal the marijuana from any “passerby.” The Court disagreed with the government, observing:

The government would have us ignore the character of the Moody property. Whatever precautions a homeowner in an urban area might have to take to protect his activity from the senses of a casual passerby, a dweller in a rural area whose property is surrounded by extremely dense growth need not anticipate that government agents will be crawling through the underbrush by putting up signs warning the government to keep away.
More to the point
[T]he continuing concern with property rights is prompted by the realization that an individual often has a very reasonable expectation of privacy in his private property, and it is this expectation which the Fourth Amendment protects.

Id. at 870 (footnote and citation omitted).

We are aware that the facts in Holmes are distinguishable from those here insofar as the object of the search there was a shed while the arrest here was for activity carried on in a field. However, the observation in Holmes concerning agents crawling through underbrush is analogous to the situation here, where agents were forced to cross well-kept, posted fences and a dike, break a locked gate, and then proceed several hundred yards to observe activity on private property. Respondent’s expectation of privacy, in light of all the precautions he had taken, was certainly as reasonable as that of the defendant in Holmes.

Obviously, activity conducted in an open field does not, in most cases, warrant a significant expectation of privacy. Under the facts of this case, however, and in light of the size of the property and the precautions taken by respondent, we find that an expectation of privacy was reasonable.

Petitioner cites several cases involving open fields and warrantless searches in which courts held that there had been no violation of constitutional rights. The case sub judice is, however, distinguishable from those cited when analyzed in the manner suggested by Justice Harlan in Katz.

In Air Pollution Variance Board of the State of Colorado v. Western Alfalfa Corp., 416 U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974), the United States Supreme Court cited Hester and made reference to the open fields doctrine in holding that a war-rantless search was propér. The Court noted, however, that “[t]he field inspector was on respondent’s property but we are not advised that he was on premises from which the public was excluded.” Id., at 865, 94 S.Ct. at 2116. The easy accessibility of the property evidently played a role in the Court’s decision. Respondent here, on the other hand, went to great lengths to exclude the public from entering his land, distinguishing this situation from that in Western Alfalfa.

In United States v. Basile, 569 F.2d 1053 (9th Cir.), cert. denied, 436 U.S. 920, 98 S.Ct. 2268, 56 L.Ed.2d 761 (1978), the Ninth Circuit Court of Appeals, citing Hester and Katz, held that evidence seized by authorities could not be suppressed since the truck in which it was found had been abandoned 100 yards from the defendant’s home and thus there could be no reasonable expectation of privacy in the vehicle. Again, however, the facts in the case cited are distinguishable from those in the case at bar. The area in which the truck was abandoned was neither posted nor enclosed in any way which was likely to discourage entry therein. The only obstacle met by the officials in reaching the spot was an old railroad right of way fence. The accessibility of the fields here and in Basile differs significantly.

In United States v. Brown, 473 F.2d 952 (5th Cir. 1973), tie Fifth Circuit Court of Appeals held permissible the search of a chicken coop on an abandoned, unposted farm. In so holding, the Court made no reference to Katz, citing only to Hester and related cases. The facts in Brown, however, are at such a variance from those here that doubtless the search would also have been held proper even if the Court had used the analysis enunciated in Katz.

United States v. Cain, 454 F.2d 1285 (7th Cir. 1972), has little relevance to the case sub judice because, like Brown, the facts are significantly different. The federal agents that conducted the search in Cain were properly on the property for a routine supervisory inspection. The area searched was regularly open to persons paying to hunt there, and there is no indication of an expectation of privacy on the part of the owners. Also as in Brown, the Court did not utilize the Katz test, but instead relied on the open fields doctrine in reaching its decision.

We will not go on, distinguishing this case from those in which warrantless searches of areas other than dwellings were held proper. Suffice it to say that it is distinguishable from those cited by petitioner either because the cited case rigidly followed the open fields doctrine and ignored the test enunciated in Katz, or else presented a situation in which the owner had evidenced no expectation of privacy and/or had no reasonable such expectation.

The respondent here met both of the above requirements. He went to great lengths to demonstrate that outsiders were not welcome on his property — certainly one could not have made it to the spot from which the drug transfer was observed without realizing that he was not to be there. And in view of those efforts to keep others away, the size and seclusion of the property involved, and society’s interest in protecting its citizens’ privacy when in their homes and on their property, we think that respondent’s expectation of privacy was a reasonable one.

We are not here sounding the death knell for the open fields doctrine — only for the blind, indiscriminate application thereof. Activities carried on in a truly open field, or in any area which one knowingly exposes to the public, are not subject to Fourth Amendment protections.' There can be no reasonable expectation of privacy in a field open, visible, and easily accessible to others. That, however, was not the case here.

In light thereof, we agree with that part of the decision of the district court holding that the warrantless search herein was improper and that the evidence seized as a result thereof should be suppressed. Petitioner’s second point on appeal is that section 893.13(1) (A) (2), Florida Statutes (1977), proscribes simple possession of over 100 pounds of cannabis as a felony of the second degree. The district court so found in its opinion in this cause, and, on the basis of our opinion in Parker v. State, 406 So.2d 1089 (1981), we also agree with that part of the decision.

Having considered each of the points raised by petitioner and finding that none have merit, the district court’s decision is hereby approved.

It is so ordered.

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

McDONALD, J., dissents with an opinion.

McDONALD, Justice,

dissenting.

I dissent from that portion of the opinion finding that the motion to suppress was properly granted.

This Court has adopted Justice Harlan’s analysis of warrantless searches, as expressed in his concurrence to Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967):

[T]he capacity to claim the protection of the fourth amendment depends upon whether a person has a “legitimate” expectation of privacy in the invaded area. That expectation will be recognized as legitimate if a person has exhibited an actual (subjective) expectation of privacy, and the expectation is one that society is prepared to recognize as reasonable.

Norman v. State, 379 So.2d 643, 647 (Fla.1980). The majority has used the Katz-Norman analysis in the instant opinion. I disagree, however, with the conclusion reached by the majority.

I do not doubt that respondents sought to fulfill the first part of the Katz-Norman test — having a subjective expectation of privacy. But, unlike the majority of this Court and the district court, I find that their expectation was not one society should recognize as reasonable. The property is an 1800-acre cattle ranch and contains an airstrip which respondents used to conduct illegal activities. The airstrip is some 2000 feet from the house trailer where one of the respondents resided. This property, although fenced, is essentially an open field. See Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924).

To require law enforcement officers to procure search warrants prior to seizing contraband in such a situation is unreasonable, as opposed to the search and seizure being unreasonable. The fourth amendment does not apply to the circumstances of this case.

I concur with the majority’s resolution of the second issue in this case.


source: Caselaw Access Project

author: OVERTON, Justice.

license: Public Domain

text:
    Bill REDDOCK d/b/a Arrowhead Campsites, Petitioner, v. DEPARTMENT OF TRANSPORTATION, Respondent. HENDERSON SIGN SERVICE and Arrowhead Campsites, Petitioners, v. DEPARTMENT OF TRANSPORTATION, Respondent.
    Nos. 60057, 60058.
    Supreme Court of Florida.
    Nov. 5, 1981.
    Charles M. Wynn, Marianna, for petitioners.
    Margaret-Ray Kemper, Appellate Atty., Philip S. Bennett, Trial Atty., and H. Reynolds Sampson, Gen. Counsel, Tallahassee, for respondent.
   OVERTON, Justice.

In both of the instant causes, the First District Court of Appeal, 390 So.2d 159, 390 So.2d 818, remanded the issue to the Department of Transportation “to abide the Supreme Court’s decision in LaPointe Outdoor Advertising v. Dept. of Transportation, 382 So.2d 1347 (Fla. 4th DCA 1980), cert, granted (Fla.1980).” At the time we accepted jurisdiction, direct conflict existed between Brazil v. Division of Administration, State Department of Transportation, 347 So.2d 755 (Fla. 1st DCA 1977), and LaPointe. We have since resolved that conflict, LaPointe Outdoor Advertising v. Florida Department of Transportation, 398 So.2d 1370 (Fla.1981), and now remand the instant causes to the First District for reconsideration in view of our LaPointe decision.

It is so ordered.

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


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Adelita QUEJADO-GREEN, Respondent.
    No. 58840.
    Supreme Court of Florida.
    Nov. 12, 1981.
    Manuel Vazquez, Bar Counsel, Coral Gables, and Scott K. Tozian, Asst. Staff Counsel, Miami, for complainant.
    No appearance for respondent.
   PER CURIAM.

This attorney-discipline proceeding is before the Court upon the complaint of the Florida Bar and the report of the referee, filed with the Court pursuant to the Florida Bar Integration Rule, article XI, Rule 11.-06(9). See Art. V, § 15, Fla.Const.

The referee found that in seven separate instances involving seven different clients, respondent received monies in trust for investment purposes. Respondent failed in her duties to remit earnings and to return principal on demand. Eventually she misappropriated the funds, apparently to her own use. The amounts given to her in trust by these various clients were quite sizable. She ultimately was faced with outstanding claims for the return of funds in excess of a quarter million dollars.

Respondent has not petitioned for review of the referee’s report. We adopt the referee’s findings of fact.

Mrs. Quejado-Green has demonstrated her lack of fitness for the practice of law. We order her disbarred immediately. We also assess against her the costs of this proceeding in the amount of $1,006.56.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Peter M. LOPEZ, Respondent.
    No. 57904.
    Supreme Court of Florida.
    Nov. 25, 1981.
    Rehearing Denied Feb. 15, 1982.

      John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel and Anita F. Dahlquist, Asst. Staff Counsel, Tallahassee, and Paul A. Gross, Branch Staff Counsel, and Wallace N. Maer and Scott K. Tozian, Bar Counsels, Miami, for complainant.
    Elliott Harris of Lopez & Harris, Miami, Everett P. Anderson of Pennington, Wilkinson, Gary & Dunlap, and Richard W. Ervin and Dean Bunch of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for respondent.
   PER CURIAM.

This disciplinary proceeding is before the Court on complaint of The Florida Bar, the report of a referee, and respondent’s petition for review. We have jurisdiction. Art. V, § 15, Fla.Const.

The Florida Bar filed a complaint alleging that Peter M. Lopez, a member of The Florida Bar, urged two parties he was suing on behalf of his client to change their future testimony in exchange for general releases from prosecution. After a hearing, the appointed referee filed a report containing the following findings of fact:

That on February 6, 1978, following the termination of a deposition taken by Respondent Lopez in his office located at 28 West Flagler Street, Miami, in a case then pending in the United States District Court, Southern District of Florida, styled “Rafael Gonzalez-Perez v. Sun Bank of Miami, et al.” Case No. 77-2225, wherein Respondent represented the Plaintiff, Respondent requested the individual defendants, to wit, J. Zambrana, Humberto Martinez-Marquez, and their counsel, Mark Dienstag, Esq. to remain in the room so that Respondent could speak to them.
Messrs. Zambrana, Martinez-Marquez and attorney Dienstag remained along with Respondent and a discussion of the testimony previously given by the witness, Defendant Jose Roses, occurred.
A key issue in the case was whether Plaintiff had given instruction to Defendant Zambrana to deliver a certain $25,000 cashier’s check to Defendant Sun Bank or to put the check on an Aerocondor flight to South America for delivery to Plaintiff. If the latter, a better case against Sun Bank would be made. The witness, Roses, however testified that his instructions were to deliver the check to the Bank.
During that discussion, Respondent stated to those present in the room that [meaning the testimony as given by Roses] was “not what I want to hear; that if you say the cheek was to go to Aero-condor I’ll get you off the hook”.
The words and statement uttered by the Respondent were susceptible of no other reasonable interpretation than to mean that if defendants Zambrana and Martinez testified that the instructions were for delivery of the check to Aerocondor, that in exchange for such testimony, he, Respondent Lopez as counsel for plaintiff, would drop those defendants from the suit and proceed against the other defendant, Sun Bank of Miami.
Respondent’s statements were partially in English and partially in Spanish and the evidence is at variance as to whether the exact words uttered by Respondent were in English or Spanish; however, there is no issue as to the meaning of the words as heard by the three individuals.
The witnesses, Zambrana, Martinez-Marquez and their attorney, Mark Dienstag, are credible and their testimony is credible and worthy of belief.
The only conclusion that can reasonably be drawn is that Respondent Lopez was soliciting testimony he knew the witnesses did not believe to be true in exchange for a release of the witnesses from the suit.

The referee then made the following recommendations:

I recommend that the Respondent be found guilty and specifically that he be found guilty of the following violations of his Oath as an attorney, The Integration Rules of The Florida Bar and Disciplinary Rules of the Code of Professional Responsibility, to wit:
Rule 11.01 of the Integration Rule and Disciplinary Rules 1-102A(3), 1— 102A(4), 1-102A(5), 1~102A(6), 7-102A(6) and 7-102A(8) of the Code of Professional Responsibility, in that Respondent was urging parties and/or witnesses to testify under oath to matters which Respondent knew, or should have known, that the said witnesses did not believe and which were false.
I recommend that the Respondent be suspended from the practice of law for a period of three months with automatic reinstatement at the end of the three month period of suspension as provided in Rule 11.10(3).

Mr. Lopez has taken exception with the referee’s report contending that he is not guilty of the infractions charged and that the evidence is insufficient to support any finding to the contrary.

A referee’s “findings should be upheld unless clearly erroneous or lacking in evidentiary support.” The Florida Bar v. McCain, 361 So.2d 700, 706 (Fla.1978); The Florida Bar v. Wagner, 212 So.2d 770, 772 (Fla.1968). Here, based on the evidence presented, the referee found that respondent had violated his ethical and professional responsibilities. This conclusion is corroborated by each of the four witnesses’ testimony and is reasonable. The evidence presented meets the burden placed on complainant to provide clear and convincing proof of respondent’s misconduct. The Florida Bar v. Valantiejus, 355 So.2d 425 (Fla.1978); The Florida Bar v. Quick, 279 So.2d 4 (Fla.1973); The Florida Bar v. Schonbrun, 257 So.2d 6 (Fla.1971); The Florida Bar v. Rayman, 238 So.2d 594 (Fla.1970). We therefore affirm the referee’s finding that respondent violated his attorney’s oath, the Integration Rule, and the Code of Professional Responsibility.

We cannot agree, however, with the referee’s recommended three-month suspension with automatic reinstatement at the end of that time. Mr. Lopez has committed a serious violation of his responsibilities as a member of the Florida Bar. We feel that a three-month suspension is insufficient to impress on the respondent, the bar, and the public our dissatisfaction with and distress over his conduct. If Mr. Lopez had been convicted in a court of this state of tampering with a witness, he would have been subject to a one-year term of imprisonment. Using the witness-tampering statute as a guideline, we find a one-year suspension appropriate in this case.

Peter M. Lopez is suspended from the practice of law for one year, effective thirty days from the date of the filing of this opinion, and thereafter until he shall show his rehabilitation through complying with rule 11.11 of the Integration Rule and by obtaining a passing score on the ethics portion of the bar examination. Costs in the amount of $949.00 are hereby taxed against respondent.

It is so ordered.

SUNDBERG, C. J., and OVERTON, ALDERMAN and McDONALD, JJ., concur.

ADKINS and BOYD, JJ., dissent.

       § 918.14(2), Fla.Stat. (1977). Inducement not involving force, deception, threat, or offer of pecuniary benefit is a first-degree misdemean- or.


author: ADKINS, Justice.

text:
    Richard Cecil BLAIR, Appellant, v. The STATE of Florida, Appellee.
    No. 58072.
    Supreme Court of Florida.
    Nov. 25, 1981.

      Gary Smigiel of Gehris, Smigiel & Associates, P. A., Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, for appellee.
   ADKINS, Justice.

This is a direct appeal from a judgment adjudging defendant guilty of murder in the first degree and a sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

The defendant was charged with the premeditated murder of his wife, Kim Blair, whom he met while serving with the armed forces in Viet Nam. Kim was the mother of three children, Betty, Bobby, and Becky. The family lived together in Daytona Beach, Florida, until defendant accepted employment in Africa. Upon defendant’s return from Africa, domestic difficulties arose which resulted in the death of Kim Blair.

Under the state’s theory, arguments arose because of Kim’s complaint that defendant and her daughter, Betty, were spending too much time together and Kim was going to the police about it. The state says that defendant decided to murder his wife, purchased a weapon and ammunition, utilized a conveniently stopped-up sink to justify the digging of what turned out to be the burial site, arranged for the two daughters to be gone at the time the actual shooting took place, made sure all the children were gone while the murder scene was cleaned up and evidence destroyed, and then in the middle of the night, buried the remains of his wife.

The defendant says he had an argument with his wife, she left the home, and when she returned found a gun and ammunition in defendant’s car. Defendant says Kim loaded the gun, came into the house, walked into the bedroom and yelled at defendant. At this time, she fired a shot at him which hit a screen and went through the window, breaking the window behind the screen. There was a struggle over the gun and during the course of the struggle the gun went off and Kim Blair was struck in the head. Two more shots were fired. At this point, the defendant went into a state of panic, dug a hole in the backyard, dragged his wife out, and put her in the hole. Then he went back in the house to finish cleaning up the bedroom and found a gun that Kim Blair had hidden under the mattress.

The jury found defendant guilty of murder in the first degree. The case then proceeded into the penalty phase of the bifurcated trial and the jury recommended to the court that it impose the death penalty. The trial court followed the recommendation of the jury and imposed a death sentence. A motion for new trial was denied and this appeal resulted.

On July 14, the night of the homicide, defendant told Bobby that Kim had left home and that she was going to Miami to visit friends and get some rest. On July 15, the defendant told Mrs. Thomas King, a friend of Kim’s, that Kim had gone to his mother’s house. On July 16 the defendant told Suzie Shepherd, another friend of Kim’s, that his wife had felt bad and had gone to defendant’s mother’s house to stay. On July 18, after a second inquiry by Suzie, the defendant told her that his wife had left home on July 14 with a woman in a blue car. On the morning after the disappearance, defendant told Becky, the daughter of Kim, that Kim was ill and he had to take her to the hospital. Defendant’s stories to the investigating officers relating to the disappearance of his wife were just as inconsistent. The law enforcement officers then began an investigation. A search warrant was issued and upon a search of the premises the body of Kim was discovered.

The defendant attacks the legality of the search contending that the affidavit supporting the search warrant did not establish probable cause for the search; the facts in the affidavit were based upon double hearsay and upon the testimony of unreliable witnesses; and the affidavit contained misrepresentations of fact. In State v. Wolff, 310 So.2d 729 (Fla.1975), we said:

Before issuing a search warrant, an issuing magistrate must make three distinct determinations. He must evaluate (1) the truthfulness and integrity of the witness before him; (2) the reliability of the source of the hearsay information, if any; and (3) the adequacy of the factual premises furnished from all sources to support the validity of the conclusion. In the first instance, he is judging the honesty, integrity, and truthfulness of the person before him. In the second instance, he is judging from the facts of prior actions the reliability and trustworthiness of a non-swearing informant. In the third instance, he is judging the reason and logic of the proposition to reach its ultimate conclusion. These are each distinct functions. They include the so-called two-pronged test contained in Aguilar v. Texas, [378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723] supra, as explained in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Clearly, an affidavit for a search warrant of a dwelling may be constitutionally based on hearsay information and need not reflect the direct personal observations of the affiant. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).

Id. at 732-33.

The bulk of the information forming the basis of the affidavit came from defendant Blair himself. Inconsistent stories alone were sufficient to raise some cause for suspicion. In addition the defendant admitted that he had forged letters and checks so that he could secure funds belonging to Kim Blair. In other words the disappearance of Kim Blair was not as “normal” as one might think. There was information concerning the digging of a hole in the backyard and the pouring of cement over it. There were statements from the victim’s daughters to the effect that during the night after Kim’s disappearance they both saw, independent of each other, defendant carry into the yard what appeared to be their mother’s body wrapped up in a sheet.

One statement in the affidavit was admittedly incorrect, but after deletion of these erroneous facts, the affidavit still contains sufficient facts to demonstrate probable cause. These incorrect statements do not invalidate the search warrant. Stipp v. State, 355 So.2d 1217 (Fla. 4th DCA), cert. denied, 364 So.2d 893 (Fla.1978). From an examination of the record it appears that the magistrate who issued the warrant was presented with sufficient facts to properly and legally reach the conclusion that there was probable cause to believe that Kim Blair was dead and that her body was beneath a cement slab in the backyard of her house.

During direct examination defendant testified that on the day of the homicide he and his wife had argued. This argument centered around the way “things was going in the house.” Kim was not satisfied with the amount of money she had in her possession and the amount of time that defendant spent “not only with Betty, but Bobby.” The record then discloses the following on direct examination:

Q Didn’t a day or two of that, there had been an argument, there had been an argument where she said you were spending too much time with Betty?
A Yes, sir.
Q Okay. I am sorry. I was confused. And did she mention the word “police” in that context?
A Not that I recall, sir.
Q Did she threaten to take Betty to the police and put her in a home?
A Yes, sir.
Q Was that during the argument?
A She made several threats to it, yes, sir.

The following transpired on re-cross-examination:

Q Did the threat that was made that you are speaking of have anything to do with the fact that Kim believed that Betty was pregnant?
A Not that I recall, sir.
Q Not that you recall. Is it possible?
A No, sir.

The defense then moved for a mistrial because of the insinuation that defendant got his stepdaughter pregnant. The court ruled that “the door was open” on direct examination and denied the motion for mistrial. Defendant has failed to show reversible error in this ruling.

The defendant filed a motion seeking permission to photograph daily court proceedings on the ground that such photographs would permit him to preserve “nonverbal legal errors”. Defendant has failed to show a right to take such photographs and has failed to show that the trial judge abused his discretion in denying the motion.

Defendant contends that the trial court committed reversible error by allowing numerous statements made by the defendant into evidence when such statements were made after the death of the deceased and were inconsistent. The defendant says that this was an attack on defendant’s character before the defendant took the stand. The statements were obtained either in non-custodial situations or after a proper rights advisement. They were voluntarily offered and all represented admissions or declarations which sought to provide a story or explanation of Kim’s disappearance. The fact that the statements were inconsistent shows not only guilty knowledge but also the very real intent to cover up the fact that Kim Blair was dead and that her death was the result of his criminal agency. Such matters may be shown by acts, conduct, and declarations before, at the time of, or after the commission of a criminal act. Jones v. State, 44 Fla. 74, 32 So. 793 (1902). The statements were admissible.

Defendant also argues that the prosecutor, in his closing argument, improperly “continued to use his own comments to influence the jury”, and made other statements not supported by the record. We have reviewed the transcript, and are of the opinion that there was a basis in the record for the allegedly unsupported statements.

As for the other comments complained of, we cannot say that they were “of such a nature so as to poison the minds of the jurors or to prejudice them so that a fair and impartial verdict could not be rendered.” Oliva v. State, 346 So.2d 1066, 1068-69 (Fla. 3d DCA 1977), cert. denied, 434 U.S. 1010, 98 S.Ct. 719, 54 L.Ed.2d 752 (1978). They did not “materially contribute to this conviction”, Zamot v. State, 375 So.2d 881, 883 (Fla. 3d DCA 1979) were not “so harmful or fundamentally tainted so as to require a new trial”, Smith v. State, 354 So.2d 477, 478 (Fla. 3d DCA 1978); and were not so inflammatory that they “might have influenced the jury to reach a more severe verdict of guilt than it would have otherwise ... ”, Darden v. State, 329 So.2d 287, 289 (Fla.1976), cert. dismissed, 430 U.S. 704, 97 S.Ct. 1671, 51 L.Ed.2d 751 (1977). As we noted in Paramore v. State, 229 So.2d 855, 860 (Fla.1969), modified, 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 751 (1972), “it will not be presumed that . . . [jurors] are led astray, to wrongful verdicts, by the impassioned eloquence and illogical pathos of counsel.” The statements here complained of do not warrant a new trial for defendant.

Defendant also questions the sufficiency of the evidence to show premeditation. This case involved an example of resolution of fact. The state presented evidence of a circumstantial nature which gave the jury a confident basis to conclude that in light of Kim’s threat to defendant he planned her murder. Suzie Shepherd last saw Kim on July 14 when she brought food to her and, at that time, described her as being very sick and unable to eat. Prior thereto, defendant had Bobby dig a hole in the measurements described in the record. After the hole was dug, a piece of plywood was place over it. Bobby was then unexpectedly called home to mow the grass. He did not see his mother. Defendant then got rid of Betty and Becky by sending them on an errand to the store. He told Bobby that when the girls returned they were all to go to the Dairy Queen and to be sure and stay out for at least an hour. He told Bobby that when they returned, his mother would no longer be there since she was going to Miami. Bobby was not to tell Becky. Defendant told Betty that her mother was not going to be there because someone was coming to pick her up and take her someplace. While the girls were at the store and while Bobby was cutting the grass, defendant shot and killed his wife. During the hour or so that all the children were at the Dairy Queen, defendant cleaned up the scene of the crime and burned whatever evidence was present. He was seen burning this at the time by his neighbor. None of the children saw Kim when they returned home. Betty attempted to see if her mother had left any of her things and sought to enter the bathroom in the master bedroom. Defendant was standing in front of her and she was prevented from doing so. The state contends that the bathroom contained the body of Kim Blair at that time. Later during the night Betty saw defendant carrying what she thought was the body of her mother outside. Obviously at that time Kim Blair was buried and later within the next day or two the concrete slab was poured over the site.

Defendant said that the death of Kim was the result of a violent struggle in which the weapon discharged as the result of the struggle. Defendant says he panicked, buried the body immediately after the killing. The postmortem examination led the doctor to conclude that when last alive, Kim Blair was very emaciated. He estimated her weight at 80 pounds, her height at 4 feet 10 inches. This testimony is consistent with Suzie Shepherd’s statement that Kim was sick and weak. The version of the defendant was simply unbelievable and was properly and totally rejected by the jury. There was sufficient evidence to sustain the verdict in the first degree.

Due to a possible conflict of interest, the public defender could not represent the defendant, so a private attorney was appointed by the court. Defendant attacks the constitutionality of section 925.036, Florida Statutes, which limits attorney’s fees in a capital case to $2,500.

The motion filed in the trial court did not state that the attorney was unable to adequately prepare a defense. Nor has it been shown that the maximum fee limitation of the statute in some way deprived defendant of a vital aspect of his defense or in some other way work to his detriment.

The real complaint concerning the statute was nothing more than that the attorney did not receive enough money. This is an insufficient basis upon which to ground a motion attacking the constitutionality of the statute.

In the court findings of fact in support of the death penalty, the following findings were made as to aggravating circumstances:

1. That the Defendant, RICHARD CECIL BLAIR, murdered Kim Blair from a premeditated design.
2. That the Defendant, RICHARD CECIL BLAIR, knowingly created a great risk of death to many persons.
3. That the capital felony was committed for the purpose of avoiding or preventing a lawful arrest, or in the alternative, to disrupt or hinder the enforcement of law in concealing and preventing the reporting to governmental agencies, the offense of Sexual Battery upon a minor female child, by the killing of Kim Blair.
4.That even though the death of Kim Blair may have been instantaneous, by one grazing wound to the skull and two direct bullet wounds to the brain, said capital offense was heinous as being extremely wicked or shockingly evil and atrocious and vile in the manner in which the defendant disposed of the victim by the burying of her remains in the rear yard of their home and pouring a concrete slab over the burial site.

The above were weighed against the sole circumstance of mitigation, i.e., that defendant had no significant history of prior criminal activity.

Defendant first contends that the trial judge should not, and could not, have found the existence of the first aggravating circumstance since the notion of premeditation was not added to the statute until after the crime was committed. Subsection (i) of section 921.141(5) was not added to the statute until July 3, 1979. The trial judge did not utilize the language of the added factor, the jury was not instructed about the additional factor, and the factor was not argued to the jury by the prosecutor. We are of the opinion that finding number one was not intended to represent the aggravating factor found in the amended version of the statute. Therefore, we view the finding as “non-statutory” and it should not be considered in aggravation under the circumstances of this case.

The trial court also improperly found that the defendant “created a great risk of death to many persons”. This aggravating factor is not present unless a great risk of death is created to many persons, not one or two. Brown v. State, 381 So.2d 690 (Fla.1980); Kampff v. State, 371 So.2d 1007 (Fla.1979).

In considering the fourth aggravating circumstance the trial judge obviously considered the manner in which defendant disposed of the victim by burying her remains in the rear yard of their home and pouring a concrete slab over the burial site. In Halliwell v. State, 323 So.2d 557 (Fla.1975), the defendant dismembered the body of the victim several hours after the homicide. We pointed out that once the victim dies, the crime of murder was completed and the mutilation of the body many hours later was not primarily the kind of misconduct contemplated by the legislature in providing for the consideration of aggravating circumstances. It was improper for the trial court in the case sub judice to consider this circumstance in determining whether or not the aggravating factor was shown by the evidence.

Because of the existence of a mitigating factor, and the improper inclusion of several aggravating factors, we must vacate the death sentence. Furthermore, comparing this case with others, we remand it for imposition of a life sentence. Cf. Halliwell v. State.

We have carefully reviewed the record in this case and find no reason to reverse the judgment of conviction, so the judgment is affirmed. The death sentence is vacated and the cause is remanded to the trial court for the imposition of a life sentence without eligibility for parole for twenty-five years.

It is so ordered.

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


author: ADKINS, Justice. SUNDBERG, Chief Justice,

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, etc., Petitioner, v. Helen Powell OLSEN, etc., Respondent.
    No. 59639.
    Supreme Court of Florida.
    Nov. 25, 1981.
    Thomas G. Kane of Driscoll, Langston, Layton & Kane, Orlando, for petitioner.
    Bruce Jacobus, Indialantic, and Edna L. Caruso, West Palm Beach, for respondent.
    Larry Klein, West Palm Beach, for The Academy of Florida Trial Lawyers, amicus curiae.

      J. Craig Corbett and Ronald M. Owen of Parker, Johnson, Owen & McGuire, Orlando, for Florida Defense Lawyers, amicus curiae.
   ADKINS, Justice.

This cause is here on petition for writ of certiorari supported by certificate of the Fifth District Court of Appeal that its decision reported in 386 So.2d 600 is one which involves a question of great public importance. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. (1972)..

The present suit arose from an automobile accident occurring in Illinois in 1976 between an uninsured Illinois motorist and a Florida resident, Johnnie Olsen, in which Mr. Olsen was killed. The deceased was insured under a policy of automobile liability insurance issued in the state of Florida by petitioner, State Farm. Respondent, Helen Powell Olsen, decedent’s wife and personal representative of his estate, thereafter filed a demand for arbitration of any uninsured motorist benefits due under the policy in question and asked that arbitration be governed by the substantive law of the state of Florida, i.e. comparative negligence, since Illinois’ law of contributory negligence would bar respondent’s action. State Farm filed suit seeking a declaratory judgment and final summary judgment was entered by the trial court for petitioner, State Farm. Respondent brought an appeal to the Fifth District.

The district court reversed the final summary judgment, holding the concept of contributory negligence as a bar to recovery to be contrary to the public policy of this state and thus not to be applied by the courts of this state under the traditional conflict of laws doctrine of “lex loci delicti”. However, deeming this to be a matter of great public importance, the court certified the following question for our consideration:

In a personal injury suit filed in Florida for a tort alleged to have occurred outside of Florida, can the contributory negligence defense bar recovery?

Olsen v. State Farm Auto. Ins. Co., 386 So.2d 600, 601 (Fla. 5th DCA 1980).

In response to that question, we refer to our very recent decision in Bishop v. Florida Specialty Paint Co. 389 So.2d 999 (Fla.1980) (pending at the time the district court of appeal certified its question), which designates the controlling test to be applied to this case.

Bishop involved the crash of a small plane in South Carolina, en route from Jacksonville, Florida, to Beech Mountain, North Carolina, for a Fourth of July weekend. At that time, under Florida conflicts law, all substantive issues of the case were to be determined under the law of the place where the injury occurred — South Carolina. Florida law allows recovery by airplane guest passengers upon a showing of ordinary negligence; on the other hand, South Carolina’s aviation guest statute requires a showing of intentional misconduct or recklessness. The plaintiffs in Bishop conceded that they could not meet the South Carolina standard for recovery. Accordingly, the First District Court of Appeal affirmed the summary judgment granted by the trial court in favor of the defendants but certified a question to this Court regarding the mechanical operation of the lex loci delicti rule.

Pursuant to that question, we abandoned the inflexible lex loci doctrine in favor of the more rational “significant relationships test” as set forth in the Restatement (Second) of Conflict of Laws, subsections 145-46 (1971):

§ 145. The General Principle
(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.
These contacts are to be evaluated according to their relative importance with respect to the particular issue.
§ 146. Personal Injuries
In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied. (Emphasis supplied.)
However, as we explained in Bishop:
The conflicts theory set out in the Restatement does not reject the “place of injury” rule completely. The state where the injury occurred would, under most circumstances, be the decisive consideration in determining the applicable choice of law. Indeed, the rationale for a strict lex loci delicti rule is also reflected in the same Restatement’s section 6, where “certainty, predictability and uniformity of result,” and “ease in the determination and application of the law to be applied” are cited as major factors in determining the proper choice of law....

389 So.2d at 1001.

Additionally, the other principles set out in the Restatement, section 6, are:

(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interest states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law, . . .

Restatement (Second) of Conflict of Laws § 6 (1971).

For those reasons, and in light of the relevant contacts set out in section 145 of the Restatement, we hold that Illinois’ law controls in the instant case. Certainly, Illinois has the most significant relationship with the occurrence since the accident happened there. Furthermore, regarding the various policies enumerated in section 6, Illinois has an interest in the rights of its citizens who are subject to subrogation by the insurer on any uninsured motorist coverage it pays, which interest, in this case, is paramount to the relevant policies of Florida as the forum state. Finally, to reiterate our position in Bishop, for reasons of uniformity and ease in determination and application of the law, (barring other factors, not existent here, which may outweigh the place of the injury as a controlling consideration), we deem Illinois law to be controlling.

Accordingly, we answer “yes” to the certified question and hold Illinois’ law to be controlling. We quash the decision of the district court and remand this cause to the Fifth District Court of Appeal for further consideration.

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

SUNDBERG, C. J., dissents with an opinion.

SUNDBERG, Chief Justice,

dissenting.

My answer to the certified question posed by the district court of appeal would be as follows: “Yes, provided the place where the tort occurred has the most significant relationship to the occurrence and the parties based on application of the principles articulated in Bishop v. Florida Specialty Paint Co., 389 So.2d 999 (Fla.1980).” Furthermore, I do not conclude automatically, as does the majority, that Illinois law applies. Although Illinois was the place of the accident and therefore has an interest in the occurrence, the relationship between the insurer and the insured must be taken into account. Since the insured was a Florida resident under a policy issued in Florida, presumably pursuant to underwriting considerations applicable to Florida, this state also has an interest. Which of the two states has the most significant relationship to the total transaction or occurrence is a determination for the trial court based on the proof presented. This requires a remand to the trial court for application of the principles set forth in the Restatement (Second) of Conflict of Laws §§ 6, 145-46 (1971).

Hence, I respectfully dissent.


author: BOYD, Justice.

text:
    Timothy Wayne BARNHILL, Petitioner, v. STATE of Florida, Respondent.
    No. 60333.
    Supreme Court of Florida.
    Nov. 25, 1981.
    Richard L. Jorandby, Public Defender and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen. and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for respondent.
   BOYD, Justice.

This cause is before us to review the decision of the district court of appeal in Barnhill v. State, 393 So.2d 557 (Fla. 4th DCA 1980), which passed upon a question certified to be of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Appellant pleaded no contest to charges of kidnapping and attempted first-degree murder which arose from a single criminal episode involving the same victim. The trial court sentenced appellant to four years incarceration and two years in a community control program under the Youthful Offender Act for kidnapping and twenty years of incarceration for attempted first degree murder. Appellant filed a Motion to Correct Sentence, claiming that he was entitled to be sentenced under the Youthful Offender Act for both convictions. The motion was denied, and he appealed.

The District Court of Appeal, Fourth District, affirmed the conviction and sentence, stating that appellant was not entitled to mandatory sentencing under the Youthful Offender Act for either conviction because he was found guilty of more than one felony at the time of sentencing. On rehearing the district court noted that the District Court of Appeal, First District, in Goodson v. State, 392 So.2d 1335 (Fla. 1st DCA 1980), had certified to this Court the question of whether simultaneous convictions of two felonies could exclude a person from mandatory classification as a youthful offender. Appellant asked the district court to certify a similar question, but unlike in Goodson to specify that the convictions arose from the same criminal episode. The district court denied the request and certified the question as follows:

P> a person excluded from mandatory classification under section 958.04(2)(a), Florida Statutes (Supp.1978), when prior to sentencing the offender has been found guilty of a qualifying felony under the act and has simultaneously been found guilty of other felonies?

393 So.2d at 561.

We agree with the district court that there is no reason why a person who is convicted of more than one felony should be entitled to mandatory classification as a youthful offender simply because the convictions arise from a single criminal episode. The fact still remains that the person has committed distinctly different crimes with unrelated degrees of seriousness and accordant punishments. Since the question, as certified by the district court, has been answered in the affirmative in State v. Goodson, 403 So.2d 1337 (Fla.1981), we affirm.

It is so ordered.

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


text:
    John SPARKS, Petitioner, v. STATE of Florida, Respondent.
    No. 60334.
    Supreme Court of Florida.
    Nov. 25, 1981.
    Elton H. Schwarz, Public Defender and Howardene Garrett, Asst. Public Defender, Fort Pierce, for petitioner.
    Jim Smith, Atty. Gen. and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

The certified question having been answered in the affirmative in State v. Goodson, 403 So.2d 1337 (Fla.1981), the decision of the district court, 394 So.2d 200, is approved.

It is so ordered.

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


text:
    STATE of Florida, Petitioner, v. Ernest Eugene GIBBS, Respondent.
    No. 60414.
    Supreme Court of Florida.
    Nov. 25, 1981.
    Jim Smith, Atty. Gen. and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for petitioner.
    Theodore E. Mack, Asst. Public Defender, Tallahassee, for respondent.
   PER CURIAM.

Affirmed. 394 So.2d 231 (Fla.App.). Murray v. State, 403 So.2d 417 (Fla.1981).

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


text:
    STATE of Florida, Petitioner, v. Archie B. GRAY, Jr., Respondent. STATE of Florida, Petitioner, v. Douglas HAISLIP, Jr., Respondent. STATE of Florida, Petitioner, v. James Henry JOHNSON, Respondent.
    Nos. 60440, 60439 and 60469.
    Supreme Court of Florida.
    Nov. 25, 1981.
    Jim Smith, Atty. Gen. and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for petitioner.
    James B. Gibson, Public Defender and James R. Wulchak, Chief Appellate Division, Asst. Public Defender, Daytona Beach, for Gray and Haislip.
    Richard L. Jorandby, Public Defender and Charles D. Peters, Chief Appellate Division and Louis G. Carres, Asst. Public Defenders, West Palm Beach, for Johnson.
   PER CURIAM.

Affirmed. 394 So.2d 1121 (Fla.App.), 400 So.2d 468 (Fla.App.), 400 So.2d 473 (Fla.App.). Murray v. State, 403 So.2d 417 (Fla.1981).

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


text:
    STATE of Florida, Petitioner, v. Edward Earl MEEKS, Respondent.
    No. 60484.
    Supreme Court of Florida.
    Nov. 25, 1981.
    Jim Smith, Atty. Gen. and Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach, for petitioner.
    Richard L. Jorandby, Public Defender and Cathleen H. Brady, Asst. Public Defender, West Palm Beach, for respondent.
   PER CURIAM.

Affirmed. 400 So.2d 465 (Fla.App.). Murray v. State, 403 So.2d 417 (Fla.1981).

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


text:
    STATE of Florida, Petitioner, v. Richard Todd CLARK, Respondent.
    No. 60505.
    Supreme Court of Florida.
    Nov. 25, 1981.

      Jim Smith, Atty. Gen. and Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach, for petitioner.
    Richard L. Jorandby, Public Defender and Robert Fallon, Asst. Public Defender, West Palm Beach, for respondent.
   PER CURIAM.

Affirmed. 400 So.2d 474 (Fla.App.). Murray v. State, 403 So.2d 417 (Fla.1981).

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


text:
    STATE of Florida, Petitioner, v. Charles B. WILLIAMS, Respondent.
    No. 60536.
    Supreme Court of Florida.
    Nov. 25, 1981.
    Jim Smith, Atty. Gen. and Edwin H. Duff, III, Asst. Atty. Gen., Daytona Beach, for petitioner.
    Richard L. Jorandby, Public Defender and Margaret Good, Asst. Public Defender, West Palm Beach, for respondent.
   PER CURIAM.

Affirmed. 400 So.2d 471 (Fla.App.). Murray v. State, 403 So.2d 417 (Fla.1981).

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


text:
    STATE of Florida, Petitioner, v. William C. McCOVICK, Respondent.
    No. 60553.
    Supreme Court of Florida.
    Nov. 25, 1981.
    Jim Smith, Atty. Gen. and Barbara Ann Butler, Asst. Atty. Gen., Daytona Beach, for petitioner.
    Richard L. Jorandby, Public Defender and Robert C. Fallon, Asst. Public Defender, West Palm Beach, for respondent.
   PER CURIAM.

Affirmed. 400 So.2d 473 (Fla.App.). Murray v. State, 403 So.2d 417 (Fla.1981).

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


author: McDONALD, Justice.

text:
    STATE of Florida, Petitioner, v. Willie MONROE, Respondent.
    No. 60588.
    Supreme Court of Florida.
    Nov. 25, 1981.

      Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., Miami, for petitioner.
    Bennett H. Brummer, Public Defender and Peter Raben, Asst. Public Defender, Miami, for respondent.
   McDONALD, Justice.

The Third District Court of Appeal has certified its opinion in Monroe v. State, 396 So.2d 241 (Fla.3d DCA 1981), as passing on a question of great public importance. We have jurisdiction, article V, section 3(b)(4), FLorida Constitution, and disapprove in part and approve in part the instant decision.

A two-count information charged Monroe with robbery with a firearm under section 812.13, Florida Statutes (1977), and unlawful possession of a firearm while committing a felony under section 790.07, Florida Statutes (1977). The jury convicted Monroe on both counts, and the trial court imposed consecutive sentences of ten years and five years respectively. On appeal the district court found the firearm possession charge to be a lesser included offense of the robbery. Relying on Mahaun v. State, 377 So.2d 1158 (Fla.1979), and State v. Pinder, 375 So.2d 836 (Fla.1979), the district court reversed both the conviction and sentence on the second count.

This Court recently held that, although section 775.021(4), Florida Statutes, precludes multiple sentences for lesser included offenses, multiple convictions for lesser included offenses are not barred by either the state or federal constitution. State v. Hegstrom, 401 So.2d 1343 (Fla.1981). We therefore disapprove the district court’s reversal of the conviction for unlawful possession of a firearm, but approve the reversal of sentence for that offense and remand for proceedings consistent with this opinion.

It is so ordered.

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


text:
    STATE of Florida, Petitioner, v. Larry Lee HEGGS, Respondent.
    No. 60606.
    Supreme Court of Florida.
    Nov. 25, 1981.
    Jim Smith, Atty. Gen. and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for petitioner.
    Richard L. Jorandby, Public Defender and Jon May, Asst. Public Defender, West Palm Beach, for respondent.
   PER CURIAM.

Affirmed. 397 So.2d 369 (Fla.App.). Murray v. State, 403 So.2d 417 (Fla.1981).

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


text:
    STATE of Florida, Petitioner, v. Tyree Leroy NELMS, Respondent.
    No. 60607.
    Supreme Court of Florida.
    Nov. 25, 1981.
    Jim Smith, Atty. Gen. and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for petitioner.
    James B. Gibson, Public Defender and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for respondent.
   PER CURIAM.

Affirmed. 397 So.2d 372 (Fla.App.). Murray v. State, 403 So.2d 417 (Fla.1981).

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


text:
    STATE of Florida, Petitioner, v. Robert Lee THOMPSON, Respondent.
    No. 60-615.
    Supreme Court of Florida.
    Nov. 25, 1981.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for petitioner.
    P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for respondent.
   PER CURIAM.

Affirmed. 405 So.2d 990. Murray v. State, 403 So.2d 417 (Fla.1981).

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


text:
    STATE of Florida, Petitioner, v. Ronnie T. STUDSTILL, Respondent.
    No. 60618.
    Supreme Court of Florida.
    Nov. 25, 1981.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for petitioner.
    P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for respondent.
   PER CURIAM.

Affirmed. 397 So.2d 753 (Fla.App.). Murray v. State, 403 So.2d 417 (Fla.1981).

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


text:
    Virginia Ellen LENZ, Petitioner, v. STATE of Florida, Respondent.
    No. 60650.
    Supreme Court of Florida.
    Nov. 25, 1981.
    Richard L. Jorandby, Public Defender and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen. and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

The certified question having been answered in the- affirmative in State v. Goodson, 403 So.2d 1337 (Fla.1981), the decision of the district court, 395 So.2d 1273 is approved.

It is so ordered.

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


text:
    STATE of Florida, Petitioner, v. Eric Earl GREENE, Respondent.
    No. 60727.
    Supreme Court of Florida.
    Nov. 25, 1981.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for petitioner.
    Nancy A. Daniels, Asst. Public Defender, Tallahassee, for respondent.
   PER CURIAM.

The certified question was answered in the affirmative in State v. Goodson, 403 So.2d 1337 (Fla.1981). The petition for review is therefore dismissed. 398 So.2d 1011 (Fla.App.).

It is so ordered.

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


text:
    STATE of Florida, Petitioner, v. John DOE, a/k/a Jimmy John Wesley Washington, Respondent.
    No. 60738.
    Supreme Court of Florida.
    Nov. 25, 1981.

      Jim Smith, Atty. Gen. and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for petitioner.
    Melanie Ann Hines, Asst. Public Defender, Tallahassee, for respondent.
   PER CURIAM.

Affirmed. 405 So.2d 994. Murray v. State, 403 So.2d 417 (Fla.1981).

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


text:
    Raleigh L. BORDEN, Petitioner, v. STATE of Florida, Respondent.
    No. 60803.
    Supreme Court of Florida.
    Nov. 25, 1981.
    Richard L. Jorandby, Public Defender and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., and Mark Horn, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

The certified question having been answered in the affirmative in State v. Goodson, 403 So.2d 1337 (Fla.1981), the decision of the district court, 399 So. 394 (Fla.App.), is approved.

It is so ordered.

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


text:
    Ellery Dean EDWARDS, et al., Petitioners, v. STATE of Florida, Respondent.
    No. 60853.
    Supreme Court of Florida.
    Nov. 25, 1981.
    Melanie Ann Hinés, Asst. Public Defender, Tallahassee, for petitioners.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

The certified question having been answered in the affirmative in State v. Goodson, 403 So.2d 1337 (Fla.1981), the decision of the district court is approved, 399 So.2d 124.

It is so ordered.

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


text:
    STATE of Florida, Petitioner, v. Bobby O’Neal BARNES, Respondent.
    No. 60921.
    Supreme Court of Florida.
    Nov. 25, 1981.

      Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, for petitioner.
    Carl S. McGinnes, Asst. Public Defender, Tallahassee, for respondent.
   PER CURIAM.

Affirmed. 400 So.2d 22. Murray v. State, 403 So.2d 417 (Fla.1981).

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


text:
    STATE of Florida, Petitioner, v. Larry Roosevelt WESLEY, Respondent.
    No. 60922.
    Supreme Court of Florida.
    Nov. 25, 1981.
    Jim Smith, Atty. Gen. and Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, for petitioner.
    Nancy A. Daniels, Asst. Public Defender, Tallahassee, for respondent.
   PER CURIAM.

Affirmed. 399 So.2d 980. Murray v. State, 403 So.2d 417 (Fla.1981).

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


text:
    STATE of Florida, Petitioner, v. Bruce D. MOYERS, Respondent.
    No. 60930.
    Supreme Court of Florida.
    Nov. 25, 1981.
    Jim Smith, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for petitioner.
    P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for respondent.
   PER CURIAM.

Affirmed. 400 So.2d 769. Murray v. State, 403 So.2d 417 (Fla.1981).

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


text:
    STATE of Florida, Petitioner, v. Narciso R. VERA, Respondent.
    No. 60941.
    Supreme Court of Florida.
    Nov. 25, 1981.
    Jim Smith, Atty. Gen. and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for petitioner.

      David J. Busch, Asst. Public Defender, Tallahassee, for respondent.
   PER CURIAM.

Affirmed. 405 So.2d 1000. Murray v. State, 403 So.2d 417 (Fla.1981).

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


text:
    Arthur Tony LANCASTER, Petitioner, v. STATE of Florida, Respondent.
    No. 60987.
    Supreme Court of Florida.
    Nov. 25, 1981.
    Richard L. Jorandby, Public Defender and Jon May, Asst. Public Defender, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen. and Mark Horn, Asst. Atty. Gen., West Palm Beach, for respondent.'
   PER CURIAM.

The certified question having been answered in the affirmative in State v. Goodson, 403 So.2d 1337 (Fla.1981), the decision of the district court, 399 So.2d 395, is approved.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. David M. COOPER, Respondent.
    No. 61068.
    Supreme Court of Florida.
    Nov. 25, 1981.
    John F. Harkness, Jr., Executive Director, Tallahassee, and Richard B. Liss, Bar Counsel, Miami, for complainant.
    Sheldon Ronald Schwartz, North Miami Beach, for respondent.
   PER CURIAM.

This matter is before the Court on Respondent’s Petition for Leave to Resign Permanently Pending Disciplinary Proceedings pursuant to article XI, Rule 11.08 of the Integration Rule of The Florida Bar.

The Petition states:

1. The [Respondent] is 37 years old and has been a member of The Florida Bar since 1968.
2. [Respondent] received a private reprimand on July 25, 1978, (Case Number 11H77M50). The [Respondent] was retained by a newspaper to collect money on accounts owed to the newspaper from advertisers with the newspaper. With regard to his collection efforts on many of the accounts, it was apparent that the [Respondent] was guilty of neglect. The Grievance Committee recommended acceptance of the [Respondent’s] conditional guilty plea for a grievance committee private reprimand. The Board of Governors approved the consent judgment.
3. Cases or complaints against the [Respondent] currently open are 11H80M31 (complaint by Leone Kane), 11H80M62 (complaint by Roger A. Levine), 11H80M63 (complaint by Lisa Cam-po) and 11H80M47 (complaint by Charles Kline).
4. The complaint of Leone Kane involved [Respondent’s] efforts as a collection attorney. The allegations were that he failed to remit funds he collected on behalf of creditors and did not properly utilize funds that were given him to institute a lawsuit. The allegations constitute a violation of Disciplinary Rule 9-102(B)(4) and Integration Rule 11.02(4). The Grievance Committee found probable cause without a formal hearing after [Respondent] failed to respond to the allegations set forth in the complaint.
5. The complaint of Roger A. Levine involved allegations that [Respondent] was paid a fee and given money for filing fees in collection cases but took no action. These allegations constitute a violation of Disciplinary Rule 6-101(A)(3).
6. The complaint of Lisa Campo involved allegations that [Respondent] failed to take any action after being retained by complainant to represent her in a divorce action. The allegations constitute a violation of Disciplinary Rule 6-101(A)(3).
7. The complaint of Charles Kline involved allegations that [Respondent] criminally diverted funds in excess of $500,000 belonging to the University of Miami Hospital and Clinics and the National Children’s Cardiac Hospital. These allegations were the basis of criminal proceedings in which the [Respondent] was adjudged guilty of certain counts .... This misconduct constitutes a violation of Disciplinary Rule 1-102(A)(3) and (4).
8. [Respondent] acknowledges he violated the Code of Professional Responsibility, and pleads guilty to the complaints as presented in cases 11H80M31, 11H80M62, 11H80M63 and 11H80M47.
9. To the best of [Respondent’s] knowledge and belief, no other cases or complaints are currently under investigation.
10. [Respondent] agrees to cooperate with any Clients Security Fund investigation conducted by The Florida Bar.
11. [Respondent] agrees to a waiver of confidentiality regarding this matter.
12. [Respondent] is no longer actively engaged in the practice of law and is not holding any funds in trust. An Order Appointing Inventory Attorneys was issued by Judge Jack M. Turner on April 1, 1980 upon a finding that [Respondent] had disappeared and left no partner, executor, or other responsible party to conduct his affairs.
13. On December 8, 1980, [Respondent] was adjudged guilty of Grand Larceny (two counts) and Grand Theft— Second Degree (thirteen counts) in the Circuit Court of the Eleventh Judicial Circuit of Florida, In and For Dade County (Case No. 80-15248).
14. [Respondent] was sentenced to Probation which included incarceration and as an Additional Special Condition of Probation On All Counts, [Respondent] is required to permanently resign from The Florida Bar ....
15. A Notice of Felony Conviction has been or will be filed by The Florida Bar.
16. This petition is without leave to apply for readmission permanently.
17. The granting of the instant Petition will cause no harm to the public or the administration of justice.
18. [Respondent] fully and voluntarily submits this Petition.

The Florida Bar having now filed its response supporting the Petition for Leave to Resign Permanently on the conditions set forth above, and the Court having reviewed the same and determined that the requirements of Rule 11.08(3) are fully satisfied, the Petition for Leave to Resign Permanently is hereby approved and Respondent’s resignation shall be effective immediately.

It is so ordered.

ADKINS, Acting C. J., and BOYD, OVERTON, ALDERMAN and Mc-DONALD, JJ., concur.


text:
    Kenneth G. PARMALEE, Petitioner, v. STATE of Florida, Respondent.
    No. 61093.
    Supreme Court of Florida.
    Nov. 25, 1981.
    Richard L. Jorandby, Public Defender and Anthony Calvello, Asst. Public Defender, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

The certified question having been answered in the affirmative in State v. Goodson, 403 So.2d 1337 (Fla.1981), the decision of the district court, 401 So. 918 (Fla.App.), is approved.

It is so ordered.

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


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

text:
    Larry LONERGAN, a/k/a Lawrence D. Lonergan, Appellant, v. Ida O. LIPPMAN, Sara O. Morgan, and Anne O. Grunthal, Appellees.
    No. VV-249.
    District Court of Appeal of Florida, First District.
    March 27, 1981.
    Rehearing Denied Jan. 5, 1982.
    Arnold H. Slott of Black & Slott, P. A., Jacksonville, for appellant.
    C. Ray Greene, Jr. of Greene & Greene, Jacksonville, for appellees.
   MILLS, Chief Judge.

This is the third appearance in this court of ongoing litigation between the parties. The controversy between the parties began when appellees brought suit to foreclose a mortgage on the Sandpiper Hotel which housed the premises upon which Lonergan held a lease. On 27 May 1977 the trial court granted summary final judgment in favor of appellees and ruled that the mortgage was superior to Lonergan’s lease and ordered the sale of the hotel. Appellees purchased the property.

Lonergan appealed the ruling to this court, but did not post a supersedeas bond. In September of 1977, the appellees refused to accept the rent due under the lease and, characterizing the tenancy as a tenancy at will, demanded $2,000 per month plus sales tax. Lonergan refused to pay the increased rent and paid the amount of $320 plus sales tax into escrow during the pendency of the case. In October, appellees filed suit for double rent for a tenant holding over. The building which contained, among other things, Lonergan’s place of business was in disrepair and the City of Jacksonville Beach notified appellees or appellees’ predecessor in title to fix up the building or to have it razed. On 25 June 1978, while the appeal was still pending, the Sandpiper Hotel was razed by the City of Jacksonville Beach. On 12 December 1978, this court reversed the final summary judgment of foreclosure. Lonergan v. Lippman, 365 So.2d 420 (Fla. 1st DCA 1978).

Subsequently, after further proceedings, the trial court entered a final judgment holding that Lonergan’s lease was superior to the mortgage. That decision was affirmed by this court in Lippman v. Lonergan, 380 So.2d 461 (Fla. 1st DCA 1980). Lonergan was allowed to amend his answer to plead the lease and to file a counterclaim for damages for destruction of the leasehold estate in the action for double rent initiated by appellees. The trial court granted ap-pellees’ motion for summary judgment as to this counterclaim, ruling:

It affirmatively appears from the record without dispute that defendant’s leasehold interest was terminated by foreclosure proceedings prior to the demolition of the building in question. Therefore, defendant had no leasehold estate which was capable of being destroyed.

It is this judgment that is on appeal now. We reverse.

Appellees urge that the final judgment of the trial court was in full force and effect until stayed or reversed and since Lonergan did not file a supersedeas bond and the building was destroyed before this court reversed the final judgment, appellees acted within their rights and are not responsible for any damages to him. While it is true that at the time the building was razed the leasehold interest stood terminated by the trial court’s ruling in the foreclosure action, it is also true that once the trial court’s ruling was reversed on appeal, the “. . . cause after reversal stood as though no decree had been rendered.” Marshall & Spencer Co. v. People’s Bank of Jacksonville, 88 Fla. 190, 101 So. 358 (1924). Once the earlier judgment no longer existed, the leasehold interest was not terminated and Lonergan did have a leasehold estate which was capable of being destroyed.

It would be unconscionable to allow a prevailing party in the trial court to destroy or dispose of the underlying property in a dispute while the case was on appeal and then have no liability or responsibility to the other party when that final judgment was reversed and the loser was unable to restore the status quo.

An argument similar in result to that of appellees was involved in Lowman v. Young, 212 So.2d 88 (Fla. 1st DCA 1968). There the appellee had urged that since the summary judgment which was on appeal had not been superseded while the appeal was pending and the foreclosure decree had been executed and the property had been sold at the foreclosure sale, any questions raised in the appeal were then moot and the appellant was not entitled to restitution even if the trial court judgment was held to be erroneous. This argument was found to be without merit. A person is not required to take supersedeas or to secure a stay in order to appeal a judgment; and just as the issues raised in the appeal are not mooted by the trial court’s enforcement of the final judgment, his rights are not abolished when the opposing party suffers the underlying property on which a property right is based to be destroyed.

Appellees’ reliance on Mann v. Thompson, 118 So.2d 112 (Fla. 1st DCA 1960), is misplaced. In Mann, the trial court had invalidated a cattle pasturage lease and that ruling was appealed. After the appellate court reversed the trial court ruling, the use of the pasture was returned to Mann, but he sought restitution for the damages and losses incurred in moving and disposing of the cattle and for expenses in restocking the land with cattle. There the trial court denied the claim for such damages and this court affirmed because the claim was for damage that occurred as an incidental consequence of the enforcement of the trial court’s judgment. Lonergan is not here seeking to recoup the expense of first vacating and then re-establishing his business; he is seeking damages for the destruction of the very property at issue in the suit, his leasehold estate.

REVERSED and REMANDED for proceedings consistent with this opinion.

WENTWORTH, J., concurs.

ROBERT P. SMITH, Jr., J., dissents.

ROBERT P. SMITH, Jr., Judge,

dissenting:

I do not agree that the mortgagee, now having become the owner through foreclosure and purchase at judicial sale, is liable to the tenant in damages because the City razed the structure housing the leased premises. The City razed the Sandpiper Hotel at a time when the new owner owed the tenant no duty to preserve the building against that action, even assuming the old owner had that duty under the lease or by operation of law and assuming the new owner would have had the same duty had the building stood when the tenancy, dissolved by a judgment, was revived by its reversal. At the time the building was razed upon the new owner’s refusal to spend nearly $60,000 to repair it, any affirmative duty to repair, owed by landlord to tenant, was dissolved by a subsisting judgment which was under appellate review but not reversed or superseded. In my opinion the owner was not then obliged to spend $60,000 to prevent the City’s intervention and thereby to preserve a tenant-able building against the possibility of an appellate judgment reviving the tenancy.

Upon reversal of a judgment on appeal, the sole obligation of him whom the judgment favored is to make restitution to his adversary of everything in specie, not the value but the thing, which he took in consequence of the judgment and which is still in his possession. A. Freeman, Law of Judgments, §§ 1168, 1169 (5th ed. 1925):

Upon the reversal of the judgment against him, the appellant is entitled to restitution from the respondent of all the advantages acquired by the latter by virtue of the erroneous judgment. . . . [T]he successful appellant is entitled to a restitution of everything still in possession of his adversary in specie; not the value, but the thing.. . .
... But a subsisting judgment, though afterwards reversed, is a sufficient justification for all acts done by plaintiff in enforcing it prior to the reversal. The obligation to make restitution is not based on the theory of tort. Consequently the plaintiff is not liable in damages for his lawful acts done under the judgment or for loss or damage to the property taken, occurring without his fault. Otherwise there would be little necessity or inducement for an appellant to obtain a stay or supersedeas.

The Restatement of Restitution, § 74 (1937), is in accord. See Illustration 15:

In an action of ejectment brought by A against B, A obtains possession of Black-acre which he occupies for two years, until the judgment is reversed. During that period fires for which A was not at fault destroy valuable timber upon Blackacre. B is entitled to restitution of Blackacre but not to compensation for the loss.

And Mann v. Thompson, 118 So.2d 112 (Fla.1st DCA 1960), is also in accord. This court denied that tenant’s claim against his landlord for compensatory damages sustained upon the tenant’s removal pursuant to a judgment not superseded but later reversed. Mann quite clearly limited the prevailing tenant’s restitution to any tangible benefit taken in hand during the appeal by the judgment creditor and remaining in his hands available for restitution:

There is no support in reason or authority for an extension of the doctrine of restitution to cover an award of damages which the restorer never received, and so in no true sense could restore. (118 So.2d at 116)

In no true sense can Lippman restore the Sandpiper Hotel building to Lonergan’s possession. It is gone, not into Lippman’s hands but into oblivion, destroyed by an act of government which Lippman was not obliged to prevent at the time it occurred. Thus is Lowman v. Young, 212 So.2d 88 (Fla.1st DCA 1968) distinguished; the subject property was in existence and capable of being restored to the prevailing party. At the time the City of Jacksonville Beach razed the Sandpiper building, an expenditure of $60,000 was necessary to preserve it. The trial court’s order fixing the amount of supersedeas, sought by Lonergan, conditioned a stay of judgment upon Lonergan posting an $80,000 bond, which Lonergan declined to provide. The repairs were therefore not made, the building was razed, and (Lonergan appears to concede) the tenancy was terminated.

I would affirm the trial court because Lonergan’s action seeks no true restitution but damages, because the only thing taken from Lonergan, the building, was taken by a governmental act which Lippman was not obliged to prevent, and because Lippman cannot hand back to Lonergan a building which no longer exists.


author: COBB, Judge.

text:
    Robert TALMADGE, by his next friend and natural guardian, Billy Talmadge, and Billy Talmadge, individually, Appellants, v. DISTRICT SCHOOL BOARD OF LAKE COUNTY, Sonny Walters and Auto Owners Insurance Company, Appellees.
    No. 80-1263.
    District Court of Appeal of Florida, Fifth District.
    May 27, 1981.
    As Corrected on Denial of Rehearings Dec. 16, 1981.
    David M. Hammond of Meyers, Mooney & Adler, P. A., Orlando, for appellants.
    Monroe E. McDonald of Sanders, Mc-Ewan, Mims & McDonald, Orlando, for ap-pellees.
    Jim Smith, Atty. Gen. and Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, for Office of Attorney General, as Interve-nor.
   COBB, Judge.

In 1976, Billy Talmadge, on behalf of his son, Robert Talmadge, sued the District School Board of Lake County, and its insurer, Auto Owners Insurance Company, and a physical education instructor, Sonny Walters, for an injury that occurred to Robert Talmadge during physical education class.

Sonny Walters moved to dismiss on the ground that there was no cause of action against him due to section 768.28(9), Florida Statutes (1975). The trial court granted that motion to dismiss and Talmadge appealed to the Second District Court of Appeal. The Second District Court of Appeal found that section 768.28(9), Florida Statutes (1975), did not operate as a bar against suing an employee of the Board, but only acted to indemnify such employee for a monetary judgment entered against him as a result of negligent acts occurring within the scope of his employment. Talmadge v. District School Board, 355 So.2d 502 (Fla. 2d DCA 1978). The Florida Supreme Court affirmed that decision. District School Board v. Talmadge, 381 So,2d 698 (Fla.1980).

Shortly thereafter, the Florida Legislature passed Chapter 80-271, Laws of Florida, which amended section 768.28(9), Florida Statutes, so that it barred actions against employees of the state or its subdivisions for acts committed within the scope of employment unless they were done in bad faith or with a malicious purpose. The act further provided that it “shall apply to all actions pending in the trial or appellate courts from the date this act shall take effect and to all actions thereafter initiated.” The act took effect on July 1, 1980.

Subsequent to this amendment, Sonny Walters again moved to dismiss the complaint. The trial court granted that motion. Appellant is appealing that order on the ground that section 768.28(9), Florida Statutes (Supp.1980), is unconstitutional as applied to the appellant.

Retroactive legislation is usually invalid if it impairs a vested right. 10 Fla.Jur.2d Constitutional Law § 296 (1979), and cases cited therein. To the extent that Chapter 80-271, Laws of Florida, amended section 768.28(9), Florida Statutes (Supp. 1980), to apply retroactively, it is unconstitutional. State Dept. of Transportation v. Knowles, 402 So.2d 1155 (Fla.1981), rehearing denied (Fla. Sept. 24, 1981).

Accordingly, we reverse the trial court’s order granting the motion to dismiss.

SHARP and COWART, JJ., concur.