text:
    RAINBOW HOME IMPROVEMENT COMPANY, an Alabama Corporation v. George T. WILLIAMS.
    Civ. 2010.
    Court of Civil Appeals of Alabama.
    Jan. 16, 1980.

      James D. Pruett and Robert D. McWhorter, Jr., Gadsden, for appellant.
    Edward Cunningham, Gadsden, for appel-lee.
   WRIGHT, Presiding Judge.

This is an action for breach of contract. In October 1974, plaintiff and defendant entered into a written contract by which plaintiff agreed to sell and defendant agreed to purchase the equipment and good will of a business which had been engaged in the construction, repair and installation of screen and storm windows and doors. The price for the equipment and inventory was $15,000. The contract also contained a non-competition provision for ten years for which plaintiff was to receive $3,500 each year in advance so long as the contract remained effective. That provision appears as follows:

4.The Seller agrees that he will not, for a period of ten (10) years from the date of this agreement, compete with the Buyer or any successor or assign of the Buyer operating or engaging in the same general business that the Buyer has hereby purchased from the Seller within the geographical area now comprised of the States of Alabama, Mississippi, Tennessee, and Georgia; provided, however, that the Seller may repair on the premises of his present place of business any window panes or screens delivered to him there without competing with the Buyer within the contemplation of this Agreement. The Buyer shall pay to the Seller, in advance, for each year during which this agreement shall be effective, the sum of three thousand five hundred dollars ($3,500.00). The first of such said payments shall be due and payable upon the execution of this Agreement; each such sum due for a succeeding year shall be due and payable on the first business day following the anniversary of the execution of this Agreement.

Suit was brought by plaintiff-seller for breach of contract charging failure of defendant to make the annual payments of $3,500 when due. Defendant-purchaser’s defense was that its performance was excused because of the prior failure of performance of plaintiff.

The matter was submitted to the trial court upon pleadings and stipulation. It was stipulated that defendant had paid plaintiff $7,000 for the years 1974 and 1975, but had not paid for the years 1976, 1977 and 1978; that plaintiff had repaired and replaced panes of glass and screens in both storm windows and storm doors at his premises during the years 1976, 1977 and 1978 and that he had grossed about $1,000 each year for such work.

The court found that defendant had breached the agreement by failing to pay the annual payments but found defendant entitled to a set-off against the payments in the amount of $3,000. It entered judgment for plaintiff for $7,500. Defendant appealed.

Before discussing the issue presented by the appeal, we note what is not presented by the appeal in this case. Because it was submitted to the trial court upon pleadings and stipulation, the findings of facts and conclusions of law of that court, insofar as they are challenged by the appeal, are not supported by the ore tenus rule of a presumption of correctness. We view the record as did the trial court and without any presumption of the correctness of that court’s findings. Kessler v. Stough, 361 So.2d 1048 (Ala.1978). However, the issues of fact and conclusions of law contained in the judgment of the trial court and not questioned by the appeal are not for reconsideration by this court. We have reference to the determination in the judgment that defendant, though in violation of the contract, is entitled to a set-off in the amount which plaintiff stipulated he grossed from repairing storm windows and doors. That part of the judgment could only have been entered after a determination that plaintiff had breached the non-competition provision of the contract. Plaintiff has not appealed from the judgment which granted defendant set-off. We therefore accept as correct the determination that plaintiff breached the contract by performing work contrary to the non-competition clause. In doing so, we must reject plaintiff’s argument that he did not perform work contrary to the non-competition clause.

Defendant has correctly stated the issue on appeal to be whether the breach by plaintiff of the agreement not to compete is so material as to permit it to treat the contract as broken and excuse its refusal to perform as promised.

Defendant’s argument in brief relates in large part to insistence upon the divisibility of the contract. The premise is that because it contained an aspect referring to purchase of the business, its equipment, machinery and inventory for a specific amount and another aspect referring to non-competition with an additional annual consideration for ten years, the contract was severa-ble into two parts. We do not fully perceive the object of the argument as to divisibility of the contract in this case. Divisibility or severability of a contract usually is considered in relation to the partial recision of that contract. Village Inn Pancake House of Mobile, Inc. v. Higdon, 294 Ala. 378, 318 So.2d 245 (1975). We have no element of partial recision in this case. The question before us is whether the violation of the non-competition provision of the contract by plaintiff is so material to the entire purpose of that contract as to permit defendant to treat it as broken and abandon it. It has been held that abandonment under such circumstances is not a recision of the contract but merely an acceptance of the situation which the wrongdoing of the other party has brought about. Anvil Mining Co. v. Humble, 153 U.S. 540, 14 S.Ct. 876, 880, 38 L.Ed. 814 (1894); Waters v. Weintraub, 255 Ala. 530, 52 So.2d 510 (1951).

Examination thereof clearly indicates that the non-competition provision was a material aspect of the entire contract. It carried a more than substantial portion of the total consideration. The fact that the violation of that provision by plaintiff profited him little is no measure of the materiality of it to defendant. Plaintiff, for a valuable consideration per year, agreed to refrain from competing with the business he sold to defendant. The trial court determined he had breached his agreement. Defendant faithfully performed its promise to pay plaintiff for refraining from competition until learning of the breach. We find that the breach of his promise not to compete by plaintiff was a material breach and a repudiation of the contract. Defendant was legally entitled to treat the contract at an end. Denver-Albuquerque Motor Transport, Inc. v. Green, 57 Ala.App. 709, 331 So.2d 719 (1976). The judgment of the trial court is therefore reversed and judgment is directed to be entered in favor of defendant and against the plaintiff.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


source: Caselaw Access Project

author: DeCARLO, Judge.

license: Public Domain

text:
    Curtis Gene BEHEL v. STATE.
    8 Div. 285, 8 Div. 286.
    Court of Criminal Appeals of Alabama.
    Dec. 18, 1979.
    Rehearing Denied Jan. 22, 1980.
    Elizabeth T. Cvetetic, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Samuel J. Clenney, III, Asst. Atty. Gen., for appel-lee.
   DeCARLO, Judge.

These appeals involve two escapes and are submitted to this court on oral argument. For the purposes of oral argument these cases, 8 Div. 285 and 8 Div. 286, were consolidated. The two cases are now consolidated for the purpose of appellate review.

While serving a forty-year sentence for a first degree burglary conviction, appellant escaped from the Lauderdale County Jail. He was charged with the offense of escape and, at arraignment, pleaded guilty to the charge. Sentencing was postponed to a later date. Prior to sentencing in the first escape case, appellant escaped a second time. He was charged with escape, and, at arraignment, pleaded not guilty to the second escape charge.

In the first escape case, appellant was sentenced to forty-five years to run concurrently with the forty-year burglary sentence. Appellant was later, in a non-jury trial, convicted of the second escape and sentenced to forty-five years to run concurrently with the forty-five year sentence in the first escape conviction, and a forty-year sentence in the burglary conviction.

The record reflects that the trial judge, when sentencing the appellant, considered the following facts: (1) A second escape prior to sentencing for the first escape, (2) the pending rape charge against appellant, (3) the safety of the community and (4) the deterrence factor of such sentence.

I

Appellant’s contentions are that a forty-five year sentence for escape conviction constitutes an abuse of the trial court’s discretion due to the excessiveness of the sentence in light of the crime and that such a sentence constitutes cruel and unusual punishment.

The appellant was convicted under § 13-5-65 of the Alabama Code 1975, which reads as follows:

“Any convict who escapes or attempts to escape from the penitentiary or from any person or guard having him in charge under authority of law, either within or outside the walls of the penitentiary, before the expiration of the term for which he was sentenced, shall on conviction, be imprisoned for an additional term of not less than one year.”

In Weaver v. State, 44 Ala.App. 268, 207 So.2d 134, this court, interpreting the above statute, stated that a prisoner convicted for escape “could have been sentenced to as little as twelve months more in the penitentiary. Or he could have been sentenced to a longer term up to and including life.” See also, Kelly v. State, 44 Ala.App. 307, 208 So.2d 217.

In Lee v. State, 37 Ala.App. 321, 69 So.2d 467, this court held that it is “the prerogative of the trial court to assess such punishment, within legal limits, as sound discretion should dictate.” And that “where a trial court acts within the limits provided by statute in imposing punishment, his discretion is not reviewable or revisable.” See Hosey v. State, Ala.Cr.App., 344 So.2d 1230.

In light of § 13-5-65, Code of Alabama 1975; Weaver, supra, and Lee, supra, we find that the trial court did not abuse its discretion in sentencing appellant to two forty-five year terms to run concurrently with the forty-year burglary sentence.

In response to appellant’s contention that the forty-five year sentence constituted cruel and unusual punishment, we find that the sentences were clearly within the limits authorized by § 13-5-65 and:

“[W]here the punishment prescribed by the Legislature is severe merely by reason of its extent, as distinguished from its nature, there is no collision with the Eighth Amendment.” Messelt v. State, Ala.Cr.App., 351 So.2d 636.

Therefore, the judgment of conviction by the Lauderdale Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: JONES, Justice.

text:
    Ex parte Curtis Gene BEHEL. (Re: Curtis Gene Behel v. State).
    79-286.
    Supreme Court of Alabama.
    Feb. 8, 1980.
   JONES, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.


author: ALDERMAN, Justice. OVERTON, Justice, ENGLAND, Chief Justice, ADKINS, Justice,

text:
    Robert L. SHEVIN, etc., et al., Petitioners/Appellants, v. BYRON, HARLESS, SCHAFFER, REID AND ASSOCIATES, INC., etc., et al., Respondents/Appellees.
    Nos. 54405, 54406.
    Supreme Court of Florida.
    Jan. 17, 1980.

      Jim Smith, Atty. Gen., Sharyn L. Smith, Sp. Asst. Atty. Gen., and Frank A. Vickory and Richard A. Hixson, Asst. Attys. Gen., Tallahassee, and F. R. Brock of Wildt, Que-sada, Brock & Skinner, Jacksonville, for petitioners/appellants.
    William H. Adams, III, and Stephen D. Lobrano of Mahoney, Hadlow & Adams, Jacksonville, for respondents/appellees.
    Delbridge L. Gibbs and Gerald W. Wee-don of Marks, Gray, Conroy & Gibbs, Jacksonville, for Delbridge L. Gibbs, as Attorney for Undisclosed Intervenors, on the Interpretation of § 119.011(1) Florida Statutes; Steven Carta of Smith & Carta, Fort Myers, for News-Press Pub. Co.; Dawson A. McQuaig, Gen. Counsel, and William Lee Allen, Asst. Counsel, Jacksonville, for City of Jacksonville; C. Gary Williams of Aus-ley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for Florida Society of Newspaper Editors; and George K. Rah-dert of Shackleford, Farrior, Stallings & Evans, Tampa, for Times Pub. Co.-, amici curiae.
   ALDERMAN, Justice.

We have for review the decision of the District Court of Appeal, First District, in Byron, Harless, etc., Assoc. v. State, 360 So.2d 83 (Fla. 1st DCA 1978), which has been certified to us as having passed upon a question of great public interest. The question certified is whether a right of privacy exists under either the federal or the state constitution which renders Florida’s Public Records Law, chapter 119, Florida Statutes (1975), unconstitutional as applied to the facts of this case. We answer the question in the negative and conclude that under the federal constitution a person’s right of disclosural privacy is not as broad as was found by the district court and that under our state constitution no broader right is granted. Having jurisdiction, we also consider that part of the district court’s decision which construed section 119.011(1), Florida Statutes (1975). We conclude that some of the papers in question are “public records,” as defined by section 119.011(1) and that others are not, and we hold that the broad language of the district court’s opinion expands the definition of “public records” beyond that intended by the legislature.

Factual Statement

Byron, Harless, Schaffer, Reid & Associates, Inc., an independent consulting firm composed of psychologists trained in evaluating management personnel, was employed by the Jacksonville Electric Authority, commonly referred to as JEA, to conduct a nationwide search for potential applicants for the position of its managing director. The consultant was to recommend one or more persons qualified for the position. Those recommended, together with others who might apply without the prior recommendation of the consultant, were to be publicly screened by JEA before final selection. JEA’s general counsel advised the consultant that only its written report would be a public record and that written notes prepared by the consultant for its own use would not be subject to disclosure.

The consultant contacted numerous individuals in managerial positions in electric utilities across the nation.’ Those individuals interviewed were uniformly assured that the interview was confidential. At the same time, JEA conducted a public search for applicants.

During its confidential search, the consultant, for its own use, made written notes of information and impressions obtained from the interviews conducted, and it also received resumes and letters from persons possibly interested in applying for the position. These and other papers, accumulated during the course of its search, identified the prospects and recorded their addresses, current positions in the utility field, biographical data, and comments by the prospects on their personalities, personal strengths and weaknesses, aspirations, work and living habits, and families. None of these papers were available to anyone not employed by the consultant. Most of the handwritten notes were destroyed, and most of the written submissions by those interviewed were returned as the search drew to a close.

Prior to the consultant’s report to JEA, Schellenberg, a local television executive, asked to examine the consultant’s papers relating to its search. His request was refused. Thereupon, Schellenberg and the attorney general applied for a writ of mandamus, alleging that these papers were public records under chapter 119 and, thus, were open to public inspection. Copies of those papers that had not already been destroyed by the consultant were impounded and sealed by the circuit court. Following an evidentiary hearing, the circuit court found the papers to be public records and issued a writ of mandamus.

The consultant appealed to the First District Court of Appeal, where it briefed and orally argued only the nonconstitutional issues of whether it was “acting on behalf of” JEA in the search, whether its handwritten notes constituted “public records,” and whether the writ should have issued, in light of its promise of confidentiality to the persons interviewed. Upon examining the papers, the district court became concerned that the persons interviewed, not then before the court, might have a constitutional right of privacy. Deciding that the consultant could not effectively assert the rights of these persons, the district court entered an order summarizing the contents of the papers, omitting names and other identifying information, and inviting the identifiable prospects to intervene under pseudonyms. The order appointed counsel to represent those intervenors who desired to be represented. Additional briefs and oral arguments were received on the privacy claims of the intervenors.

In reaching its decision, the district court said that the 1975 amendment of section 119.011(2) makes it clear that a business entity js “acting on behalf. of” a public agency if the services contracted for are an integral part of the agency’s chosen process for making a decision on the question at hand. It held that the consultant was “acting on behalf of” JEA and was therefore an “agency” to which the Public Records Law applied. The district court found that the papers made and received by the consultant, despite their form, were public records because they were made and received “in connection with the transaction of official business” which the JEA employed the consultant to perform. The district court also found that the intervenors have a constitutionally protected right of “personhood,” which includes the right of disclosural privacy as to the personal information given by them to the consultant under an assurance of confidentiality. Concluding that public disclosure of the consultant’s papers would deprive the intervenors of fundamental privacy rights secured by the United States and Florida Constitutions, the district court reversed the circuit court’s issuance of the writ of mandamus.

Federal Constitutional Question

Petitioners argue that there is no authority for the district court’s creation of a general federal right of personhood and that, even if there is a federal constitutional right of disclosural privacy, the Florida Public Records Law does not unconstitutionally infringe upon any such right when applied to the circumstances of this case. Respondents, on the other hand, contend that there is a distinct constitutional right of disclosural privacy which outweighs any interest of the state in requiring disclosure.

The district court’s holding, that a federal right of privacy prevents public disclosure of the consultant’s papers, is based on its determination that the Bill of Rights recognizes the fundamental integrity of persons which gives rise to a “privacy of person-hood” that cannot be violated by government except to vindicate a compelling state interest. In essence, the district court formulated a general federal right of privacy the core of which is described as the “inviolability of personhood.” We find that the district court’s conclusion is unsupported by either the decisions of this Court or those of the Supreme Court of the United States.

While there is no right of privacy explicitly enunciated in the Bill of Rights, the Supreme Court has construed the federal constitution to protect certain privacy interests. These protected interests can be said to comprise the federal constitutional right of privacy. This right of privacy cannot be characterized as a general right because its application has been strictly limited. It has been characterized as consisting of three protected interests: an individual’s interest in being secure from unwarranted governmental surveillance and intrusion into his private affairs; a person’s interest in decisional autonomy on personally intimate matters; and an individual’s interest in protecting against the disclosure of personal matters. Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). The protection of a person’s general right of privacy—his right to be left alone—is left to the law of the individual states. Katz v. United States, 389 U.S. 347, 350-51, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

The oldest and most widely understood of these privacy interests protected by the federal constitution is a person’s interest in being secure against arbitrary governmental surveillance and intrusion into his private affairs. This privacy interest, basic to our concept of a free society, is rooted in the fourth amendment prohibition against unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Katz; Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). The parameters of this interest have been repeatedly delineated over the years by the Supreme Court, and, as a result, governmental intrusion upon activity safeguarded by this interest can be readily identified and remedied by the courts. The criminal law courts are often called upon to vindicate this interest.

The second privacy interest which has gained federal constitutional recognition is the right of an individual to be free from unjustified governmental interference in making various types of important personal decisions. This interest has been characterized as the right of decisional autonomy and is protected from governmental regulation, absent a narrowly drawn legislative enactment based upon a compelling state interest. Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977). This particular privacy interest, first explicitly recognized in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), has its foundation in the fourteenth amendment’s “concept of ordered liberty.” Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). The personal rights encompassed are only those which are fundamental. Although the Supreme Court stated in Carey that the boundaries of this interest have not been marked, the Court has clearly established that an individual may make a decision relating to intimate personal activities and relationships such as marriage, Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); procreation, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541-42, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); contraception, Eisenstadt v. Baird, 405 U.S. 438, 453-54, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), without unjustified governmental interference. In these enumerated activities and relationships, there are limitations on government’s power to regulate conduct substantively. Unwarranted governmental intrusion on decisions in these “fundamental” areas is a deprivation of the “liberty” secured by the due process clause of the fourteenth amendment.

The remaining privacy interest is the interest respondents argue applies to the present circumstances and prevents disclosure of the consultant’s papers. That interest has been characterized as the individual’s interest in avoiding public disclosure of personal matters and has been explicitly mentioned by the Supreme Court only twice, once in Whalen v. Roe and once in Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977). This interest is the newest and the least defined. As recognized by the Fifth Circuit in Plante v. Gonzalez, 575 F.2d 1119 (5th Cir. 1978), the Supreme Court has provided little specific guidance on this aspect of the right of privacy, and neither Whalen nor Nixon resolves the question presented.

In Whalen, a New York statute requiring physicians to identify patients obtaining certain prescription drugs and to record such information in a centralized computer file was challenged as being violative of the individual’s interest in avoiding public disclosure of private matters. The act provided that the computerized information could only be used in judicial proceedings and made unauthorized disclosure a criminal offense. In reversing the district court’s finding of unconstitutionality, the Supreme Court discussed the security precautions taken to prevent public disclosure of the data and concluded that public disclosure was unlikely. Having found public disclosure to be unlikely, the Court refrained from discussing the nature of this privacy interest and the standard to be applied when passing on its applicability.

In Nixon, the Supreme Court considered an alleged invasion of privacy by the federal act which provided that the Administrator of General Services would take custody of former President Nixon's papers and tapes. The Court affirmed the district court’s decision upholding the constitutionality of the statute. Although stating that Nixon had a legitimate expectation of privacy in material covering “extremely private communications between [him] and, among others, his wife, his daughters, his physician, lawyer and clergyman, and his close friends as well as personal diary dicta-belts and his wife’s personal files,” 433 U.S. at 459, 97 S.Ct. at 2798, the Court did not attempt to define the privacy interest in avoiding public disclosure of personal matters because it found that the case did not present the problem of public dissemination but was concerned with the viewing and screening of documents by government archivists. Just as in Whalen, the Court in Nixon acknowledged that such a privacy interest exists but did not describe or define it, nor did it establish a standard of review to be employed in determining when this interest has been transgressed. Despite announcing that a privacy interest which protects individuals from public disclosure of private matters does exist, neither Whalen nor Nixon explicitly held that the federal constitutional right of privacy precludes dissemination of private information by the government. The district court’s reliance upon Whalen and Nixon as support for its expansive right of personhood is misplaced.

We conclude that a person’s right of dis-closural privacy is not as broad as the district court has held. Until the Supreme Court gives some substance and life to this interest, we will be guided by that Court’s decision in Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). In that case, Davis sought damages and injunctive and declaratory relief under the Civil Rights Act, 42 U.S.C. § 1983 (1970), against city and county officials who had placed his name and picture on a police flyer of “active shoplifters” which was distributed to merchants. He had been arrested for shoplifting, but the charges had been dismissed thereafter. Davis contended that this governmental disclosure had deprived him of his constitutional right of privacy under the first, fourth, fifth, ninth, and fourteenth amendments. The Court rejected his argument, stating:

Respondent’s case, however, comes within none of these areas. He does not seek to suppress evidence seized in the course of an unreasonable search. See Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 581 (1967); Terry v. Ohio, 392 U.S. 1, 8-9, 88 S.Ct. 1868, 1872-73, 20 L.Ed.2d 889, 898 (1968). And our other “right of privacy” cases, while defying categorical description, deal generally with substantive aspects of the Fourteenth Amendment. In Roe the Court pointed out that the personal rights found in this guarantee of personal privacy must be limited to those which are “fundamental” or “implicit in the concept of ordered liberty” as described in Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288, 292 (1937). The activities detailed as being within this definition were ones very different from that for which respondent claims constitutional protection — matters relating to marriage, procreation, contraception, family relationships, and child rearing and education. In these areas it has been held that there are limitations on the States’ power to substantively regulate conduct.
Respondent’s claim is far afield from this line of decisions. He claims constitutional protection against the disclosure of the fact of his arrest on a shoplifting charge. His claim is based, not upon any challenge to the State’s ability to restrict his freedom of action in a sphere contended to be “private,” but instead on a claim that the State may not publicize a record of an official act such as an arrest. None of our substantive privacy decisions hold this or anything like this, and we decline to enlarge them in this manner.
None of respondent’s theories of recovery were based upon rights secured to him by the Fourteenth Amendment.

424 U.S. at 713-14, 96 S.Ct. at 1166.

The principles involved in Paul and in the present case are strikingly similar. Both involve the release of information concerning an official act of government that is allegedly damaging to the protestants. In Paul, the Court found no privacy interest to protect, and in the present case we reach the same conclusion. The Supreme Court may some day breathe life into the privacy interest asserted by respondents, but, until that occurs, we conclude that there does not exist, under the facts of this case, a constitutionally protected interest sufficient to prevent the public from seeing the consultant’s papers.

In reaching this conclusion, we have not overlooked the recent decision in Plante v. Gonzalez where the Fifth’ Circuit, although recognizing the Supreme Court’s failure to provide guidance, nevertheless applied this interest and formulated a balancing test to be applied in examining the strength of this interest. There is nothing in Plante that persuades us that the facts of the present case establish a disclosural privacy interest that would keep the consultant’s papers from public view.

State Constitutional Question

Petitioners also challenge the district court’s conclusion that the Florida Constitution provides a right of disclosural privacy. Petitioners argue that neither the plain language of the constitution nor the cases cited by the district court support its holding that a state constitutional right of disclosural privacy exists. More specifically, they say that all of the cases relied upon by the district court deal either with tort law, the narrowly defined federal constitutional right of privacy, or involve specific constitutional or statutory guarantees to associate freely or to be free from unwarranted governmental searches and seizures— none of which provide the requisite authority needed to find a state constitutional right of disclosural privacy. Respondents, in reply, argue that both article I, section 9, and article I, section 12, of the Florida Constitution guarantee a right of disclosural privacy.

We conclude that there is no support in the language of any provision of the Florida Constitution or in the judicial decisions of this state to sustain the district court’s finding of a state constitutional right of disclo-sural privacy. We find no decisions, save for the one now under review, which have ever interpreted article I, section 9, the due process provision, as providing a right of disclosural privacy, and there is nothing in the wording of this section that persuades us that such an interpretation is correct. The district court’s reliance on article. I, section 12, the search and seizure provision, is also misplaced in that a reading of the complete section clearly indicates that the reference to “interception of private communications” was meant to apply only in the context of the law of search and seizure. This section deals only with the collection of information and not with its dissemination. The only privacy interest secured is a person’s interest in being secure from unwarranted governmental intrusion, the same protection afforded by the fourth amendment to the United States Constitution. The Supreme Court’s enunciation in Katz v. United States of the limited scope of the privacy interest protected by the fourth amendment is persuasive in our interpretation of article I, section 12.

The First District’s citation of our decisions in In Re Grand Jury Investigation, 287 So.2d 43 (Fla.1973); Hagaman v. Andrews, 232 So.2d 1 (Fla.1970); and Cason v. Baskin, 155 Fla. 198, 20 So.2d 243 (1944), as supporting its conclusion that a state constitutional right of disclosural privacy exists, is misplaced because none of these cases provide the needed authority for such a holding. Our decision in Cason did not entail any constitutionally protected right of privacy. Rather, it dealt with the alleged invasion of the plaintiff’s common law right of privacy. In Hagaman, we said nothing about a constitutional right of disclosural privacy; the only privacy right referred to was an asserted right of associational privacy. In In Re Grand Jury Investigation, we did say that there is a constitutional right of privacy, but our words must be kept in their proper context. In that case, we were concerned only with suppression of the contents of intercepted wire or oral communications, and our reference obviously was directed to the privacy interest secured by the fourth amendment and article I, section 12, to be free from unwarranted searches and seizures. Any possible confusion arising from these prior cases should have been dispelled by our later decision in Laird v. State, 342 So.2d 962 (Fla.1977), wherein it was made clear that Florida has no general state constitutional right of privacy.

Statutory Question

In order to reach the state and federal constitutional questions, the district court first had to address the issue of whether the consultant’s papers were “public records” within the meaning of section 119.011(1). In the course of holding that the consultant’s papers were “public records,” the district court in effect said that section 119.-011(1) applies to almost everything generated or received by a public agency.

The initial briefs submitted by the parties on the certified question were not directed to the district court’s interpretation of section 119.011(1). Subsequent to oral argument, however, we directed the parties to submit additional briefs on this point. The petitioners argue that the district court’s broad interpretation comports with the legislature’s intent and, thus, is the correct construction of the statute. Respondents contend that section 119.011(1) refers only to those documents which can be characterized as “final” or “formal” and that the district court’s finding that the consultant’s handwritten notes fall within the statutory definition of “public records” is erroneous. We conclude that the district court’s interpretation of section 119.011(1) is too broad.

Prior to the enactment of section 119.-011(1) in 1967, this Court, in Amos v. Gunn, 84 Fla. 285, 343, 94 So. 615, 634 (1922), said: “A public record is one required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law, or directed by law to serve as a memorial and evidence of something written, said, or done.” This limited definition obviously embraced very few documents, most of which could be found in the official record book at the courthouse. In enacting section 119.011(1), the legislature broadened the class of public records. Notwithstanding the expansion of the concept, however, the legislature based its policy determination on the term “public records.” That definition limits public information to those materials which constitute records —that is, materials that have been prepared with the intent of perpetuating or formalizing knowledge.

To give content to the public records law which is consistent with the most common understanding of the term “record,” we hold that a public record, for purposes of section 119.011(1), is any material prepared in connection with official agency business which is intended to perpetuate, communicate, or formalize knowledge of some type. To be contrasted with “public records” are materials prepared as drafts or notes, which constitute mere precursors of governmental “records” and are not, in themselves, intended as final evidence of the knowledge to be recorded. Matters which obviously would not be public records are rough drafts, notes to be used in preparing some other documentary material, and tapes or notes taken by a secretary as dictation. Inter-office memoranda and intra-of-fice memoranda communicating information from one public employee to another or merely prepared for filing, even though not a part of an agency’s later, formal public product, would nonetheless constitute public records inasmuch as they supply the final evidence of knowledge obtained in connection with the transaction of official business.

It is impossible to lay down a definition of general application that identifies all items subject to disclosure under the act. Consequently, the classification of items which fall midway on the spectrum of clearly public records on the one end and clearly not public records on the other will have to be determined on a case-by-case basis.

In this case, we have examined the consultant’s papers sealed by the circuit judge and we conclude that the letters, memoranda, resumes, and travel vouchers made or received by the consultant in the course of his contract with JEA were intended to formalize the information con-tamed in them. Therefore, these materials constitute public records under section 119.-011(1). The handwritten notes of the consultant, however, made during or shortly after his interviews with job prospects, are merely preliminary materials intended to aid the consultant when he later formalized the knowledge gained during the interviews.

Accordingly, the decision of the district court is quashed, and the cause is remanded for further proceedings consistent with this opinion.

It is so ordered.

BOYD, SUNDBERG and McDONALD, JJ., concur.

OVERTON, J., concurs specially with an opinion.

ENGLAND, C. J., concurs in part and dissents in part with an opinion.

ADKINS, J., dissents with an opinion.

OVERTON, Justice,

specially concurring.

I concur in the result of the majority opinion. I fully concur with the construction and interpretation of the public records law and the definition of public records as contained in the majority opinion. I must disagree though with those portions of the opinion which categorically reject a constitutional right of disclosural privacy. However, I find that such right of disclosural privacy as may exist does not apply to public records as defined in this cause.

ENGLAND, Chief Justice,

concurring in part and dissenting in part.

I concur with all aspects of the Court’s decision, save the categorical rejection of a general right of privacy under the federal and Florida Constitutions.

The majority correctly notes that we rejected a general right of privacy under Florida’s constitution in Laird v. State, 342 So.2d 962 (Fla.1977). Laird, however, was decided without benefit of the Supreme Court’s most recent pronouncements on privacy—Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), and Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977)—both of which announce an undefined general right of privacy outside the narrow areas previously delineated. I would not foreclose an examination of federal and state constitutional doctrines to evaluate privacy claims in the case before us.

Nor would I be deterred from an examination of Florida’s Constitution by the fact that an express right of privacy was proposed as an amendment to the Constitution in 1978, but rejected by the voters. The amendment was one of at least fifty amendments packaged by the Commission as “Revision No. 1” for a single “yes” or “no” vote by the voters. It is difficult for me to consider the rejection of this package of amendments as the rejection of a right of privacy (or any other specific proposal in the package, for that matter).

ADKINS, Justice,

dissenting.

I dissent. I believe that, in this instance, a sensible regard for the individual’s concern for preserving highly personal and sensitive information from public scrutiny requires that the pertinent memos and other papers, representing the intimate feelings of the applicants toward family members, close friends and themselves, be protected against involuntary disclosure notwithstanding the provisions of Florida’s Public Records Law, chapter 119, Florida Statutes. My position rests on the following observations and conclusions.

A

Since Griswold v. State of Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), the “right of privacy” said to inhere in the “penumbras” of the first nine amendments has been an expanding concept. Initially, the personal interests in privacy had been argued and applied only in those cases where governmental “intrusions” had threatened sanctity of certain fundamental interests and activities including procreative, marital, and other familial practices. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). Since then, however, the “zones of privacy” to which Justice Douglas referred have been continually expanding to protect individuals from government interference in areas clearly not related to the uniquely intimate activities associated with fundamental procreative and familial rights. See, Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). Although the majority identifies this additional privacy interest as the “individual’s interest in avoiding public disclosure of personal matters,” it bottoms its refusal to assert and protect this interest here on the grounds that the Supreme Court has provided “little specific guidance on this aspect of the right of privacy.” The U. S. Supreme Court has recognized in both Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), and Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), that dis-closural privacy is “part of the privacy interest which is founded, as held in Roe v. Wade, in the fourteenth amendment’s concept of personal liberty.” Nevertheless, because the United States Supreme Court was not forced to discuss the specific nature of this privacy interest in either of those cases, the majority declines to accept an interpretation of that privacy interest which is broad enough to encompass the rights of the job applicants here to keep this highly personal and intimate information from public perusal. Until the United States Supreme Court “breathes life into the privacy interest asserted,” the majority “concludes” that there does not exist under these facts a constitutionally protected interest. I would not adhere to such a limited concept of this court’s power to give necessary flesh to valuable interests recognized by the United States Supreme Court and derived from provisions in both the state and federal constitutions. If this court is of the view that the privacy interests here are of a type worthy of protection in light of the pertinent provisions of the state and federal constitutions, there is nothing in either Whalen or Nixon which prevents us from enforcing those rights in the face of a state statute which threatens them. I can envision few circumstances where the individual’s interest in preventing involuntary disclosure of personal matters can be more acutely demonstrated nor where the nature of the information invokes a less compelling state interest in its disclosure. Here, the applicants gave highly intimate and personal information concerning their wives, children, and parents. The applicants believed that public revelation of the information would result in “dire consequences” to their professional lives. There is simply no compelling state interest in revealing intimate aspects of the personalities of unemployed prospects for government jobs, particularly when this information is induced by assurances of confidentially from a state agency.

B

Even if we were strictly limited in an application of privacy considerations to the original Griswold and Roe v. Wade range of procreative, marital, and familial activities, the statements and personal revelations made here are within the realm of “fundamental interests” worthy of protection. In Roe v. Wade, the Supreme Court recognized a high regard for personal autonomy in enumerated areas including “family . child rearing . . and education.” Here, the applicants disclosed the most intimate personal reflections upon their parents, wives, and children as part of a process leading toward the eventual relocation of the family in the pursuit of a new professional career. The public revelation of the information given would most certainly threaten the present livelihoods of many of the applicants questioned. I do not see how the control over the education of one’s children, recognized as requiring special protection in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), can be considered more of a fundamental familial interest, than the determination of where the family will live and whether the head of the family will continue to be respected in his profession. The interests involved here are significantly related to the family so as to be included among the “fundamental interests” contemplated in Roe v. Wade, particularly in light of the recent Supreme Court recognition that “the outer limits of this aspect of privacy have not been marked.” Carey v. Population Services International, 431 U.S. 678, 684, 97 S.Ct. 2010, 2016, 52 L.Ed.2d 675 (1977).

C

I believe that Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), which is cited by the majority as persuasive authority, is easily distinguishable. There, the state had a compelling interest in distributing to the public (merchants, etc.) a record of active shoplifters. Here, there is simply not the same interest in disclosure. Moreover, there was no similarity between the privacy interest in Paul and the familial and marital interests found worthy of protection in Griswold and Wade. Paul is not convincing authority in light of Nixon’s recognition that a person’s expectation of privacy must be one that society recognizes as “legitimate.” Here, the expectation of privacy was premised upon express assurances that the information would be kept private.

I would hold that the doctrine of disclo-sural privacy does exist in Florida and remand the case to the district court of appeal with directions that it remand to the trial court for an application of disclosural privacy principles to determine which of the public records, if any, are entitled to disclosural protection under the constitution.

      . A notice of appeal was also filed which alleged that the district court passed on the constitutionality of chapter 119. The appeal and the petition have been consolidated.

      . Section 9. Due process. No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against himself.

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

      . Section 119.011(1), Fla.Stat. (1975), provides:
      Definitions. For the purpose of this chapter:
      (1) “Public records” means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.

      . Webster’s Third New International Dictionary 1898 (3d ed. 1968).

      . The 1977 Constitution Revision Commission proposed a new section 23 for article I of the Constitution to read:
      Right of privacy. — Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein.

        See also 6 F.S.U.L.Rev. 565, 671, 1117, 1176 (1978).

      . None of the parties have raised the 1978 constitution revision process as a point for our consideration. Although it is not, therefore, before the Court and obviously was not considered by the majority, 1 was concerned with this point on my own and now deem it appropriate to record my tentative, personal view.


author: SUNDBERG, Justice. OVERTON, Justice,

text:
    Ray Alton NORMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 55172.
    Supreme Court of Florida.
    Jan. 24, 1980.

      Charles G. Brackins of Law Offices of Meldon & Brackins, Gainesville, for petitioner.
    Jerry M. Blair, State’s Atty., and Donald K. Rudser, Asst. State’s Atty., Live Oak, for respondent.
   SUNDBERG, Justice.

This cause is before us on petition for writ of certiorari to review a decision of the District Court of Appeal, First District, reported at 362 So.2d 444, which is alleged to be in conflict with Boynton v. State, 64 So.2d 536 (Fla.1953). Boynton holds that a person’s business premises are protected from unreasonable searches and seizures under the Florida Constitution. The issue here is whether the district court erred in affirming the trial court’s denial of petitioner’s motion to suppress marijuana seized following a warrantless search of a tobacco barn located on a farm leased by petitioner. We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution.

On November 14, 1976, Deputy Sheriff Leyon Beach received information from a confidential informant, whose reliability was not shown, that marijuana belonging to persons other than petitioner was stored in a barn on the outskirts of Live Oak. He relayed this information to Sheriff Leonard. The sheriff knew that the property was owned by a Mrs. Hobgood (who was not one of the persons suspected of owning the marijuana) and that petitioner had farmed the property for the past several months. He also knew that no one was living in the house on the property. Sheriff Leonard testified that at that time he did not have sufficient probable cause to obtain a search warrant.

Sheriff Leonard went to the farm on the evening of November 14, and finding the gate locked, he climbed the fence and walked two hundred and fifty yards to one of several tobacco barns which the confidential informant had identified as containing marijuana. Peering through the window with the aid of a flashlight, the sheriff saw a substance which he identified as marijuana wrapped in tobacco sheets. He then went back to town and ordered the farm staked out to see who would come and go from it.

While on watch at the farm three days later, Deputy Beach observed a truck stop at the gate. The driver, petitioner, opened the gate and drove back among the barns. About fifteen or twenty minutes later the truck, loaded with hay, came out and crossed the highway into a field. Deputy Beach pulled behind the truck and asked petitioner for his driver’s license and advised him of his constitutional rights. He told petitioner that Sheriff Leonard had personally seen the marijuana in the barn, and that they knew that petitio'ner was aware of the marijuana’s presence. Beach did not formally arrest petitioner at this time, but he testified that petitioner was not free to leave, and that had Norman resisted, he would have arrested him. Deputy Beach asked petitioner if they could go back to the barn to verify that the marijuana was still there. Petitioner agreed but requested that he first be allowed to unload the hay off the truck. After unloading the hay, petitioner led Deputy Beach to the barn containing the marijuana. Petitioner then agreed to accompany Deputy Beach to the sheriff’s office to await Sheriff Leonard’s return. After waiting forty-five minutes in the sheriff’s office, and after being advised that it would be several hours before the sheriff returned, petitioner was arrested by Beach. Later, representatives of the sheriff’s department returned to the farm and confiscated the marijuana.

Petitioner was a resident of Moultrie, Georgia, and was renting and working the Hobgood farm. He told Sheriff Leonard at the jail that he had received an anonymous telephone call warning him not to look in the tobacco barns. Two weeks prior to his arrest, he looked in the barns and saw marijuana.

A jury convicted Ray Norman of possession of more than five grams of cannabis and possession of cannabis with intent to sell. The district court reversed on the second count, finding no direct evidence of an intent to sell. The court affirmed the conviction on the first count, holding that the sheriff’s search of the tobacco barn did not violate petitioner’s constitutional rights under the Florida and United States Constitutions.

Petitioner maintains that the sheriff’s unauthorized entry into the farm and search of the tobacco barn were in violation of his rights under the fourth and fourteenth amendments to the United States Constitution and article 1, section 12 of the Florida Constitution, and therefore the fruits of the search should have been inadmissible in evidence against him. He contends further that the consent given to Deputy Beach to search was tainted and rendered involuntary by the sheriff’s initial illegal intrusion. The state counters by arguing that the sheriff’s search of the farm was justified under the “open fields” doctrine, but that even assuming the impropriety or that intrusion, petitioner’s subsequent consent to search dissipated any constitutional taint. We hold that the sheriff’s initial entry and search of the leased premises was unlawful, and that the state has failed to meet its heavy burden of showing that petitioner’s consent to search was not fatally infected by the illegal intrusion.

The starting point for our fourth amendment analysis is Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), where the United States Supreme Court held that warrantless searches “are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Id. at 357, 88 S.Ct. at 514 (footnotes omitted). The exceptions are “jealously and carefully drawn,” Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958), and the burden is upon the state to demonstrate that the procurement of a warrant was not feasible because “the exigencies of the situation made that course imperative.” McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948); Hornblower v. State, 351 So.2d 716, 717 (Fla.1977). Among the established exceptions to the warrant requirement is a search conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In order to rely upon consent to justify the lawfulness of a search, however, the state has the burden of proving that the consent was in fact freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). In Florida, the prosecution must show by clear and convincing evidence that the defendant freely and voluntarily consented to the search. Bailey v. State, 319 So.2d 22 (Fla.1975); Sagonias v. State, 89 So.2d 252 (Fla.1956); Taylor v. State, 355 So.2d 180 (Fla. 3d DCA 1978).

The voluntariness vel non of the defendant’s consent to search is to be determined from the totality of circumstances. But when consent is obtained after illegal police activity such as an illegal search or arrest, the unlawful police action presumptively taints and renders involuntary any consent to search. Bailey v. State; Earman v. State, 265 So.2d 695 (Fla.1972); Taylor v. State. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The consent will be held, voluntary only if there is clear and convincing proof of an unequivocal break in the chain of illegality sufficient to dissipate the taint of prior official illegal action. Bailey v. State, 319 So.2d at 28; Sheff v. State, 329 So.2d 270 (Fla.1976).

Hence our inquiry in this case is twofold. We first must ascertain whether the sheriff’s initial intrusion into the farm and tobacco shed violated petitioner’s fourth amendment rights; second, if in fact the intrusion was unlawful, it must be determined whether the state, by clear and convincing evidence, has carried its burden of showing an unequivocal break between the prior illegal entry and petitioner’s subsequent consent to search.

We begin by concluding that Sheriff Leonard’s search of the tobacco barn violated petitioner’s constitutional right against unreasonable searches and seizures. Katz v. United States, supra, teaches that the 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. Id., 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J., concurring). 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. Equally certain is that petitioner’s expectation of privacy in the tobacco shed was reasonable. The barn, as an integral part of petitioner’s farming business, enjoyed the same fourth amendment protection as do other business premises. Marshal] v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978); See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). See Raffield v. State, 351 So.2d 945 (Fla.1977); Boynton v. State, 64 So.2d 536 (Fla.1953); People v. Weisenberger, 183 Colo. 353, 516 P.2d 1128 (Colo.1973).

Our conclusion above is bolstered by the fact that petitioner, by virtue of his rental agreement, had a cognizable property right in the invaded area. In a recent decision, Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court noted that “property rights reflect society’s explicit recognition of a person’s authority to act as he wishes in certain areas, and therefore should be considered in determining whether an individual’s expectations of privacy are reasonable.” 439 U.S. at 153, 99 S.Ct. at 435 (Powell, J., concurring). Indeed, the majority held that “one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude.” 439 U.S. at 144, n.12, 99 S.Ct. at 431, n.12.

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. See United States v. FMC Corp., 428 F.Supp. 615 (W.D.N.Y.1977).

Having found an initial unconstitutional search, we now must decide whether the state has proven by clear and convincing evidence that petitioner’s consent was not a product of the illegal police action. It is our view that the state has failed to carry its burden. Upon first confronting Mr. Norman at the farm, Deputy Beach told him that Sheriff Leonard had personally seen the marijuana, and that they knew that petitioner was aware of its presence. Although petitioner was not formally arrested at this time, the evidence shows that he was at least de facto in custody. Deputy Beach admitted at the hearing on the motion to suppress that petitioner was never free to leave, and that for all intents and purposes, he (petitioner) was arrested. In such a coercive setting, and faced with the awesome knowledge that the sheriff (pursuant to an illegal search) had personally seen the marijuana, petitioner’s compliance with Deputy Beach’s request to view the marijuana might possibly be deemed acquiescence to authority, but it certainly does not rise to the level of free and voluntary consent to search.

In view of the state’s failure to establish a valid exception to the warrant requirement, the search of the barn and the seizure of the contraband violated petitioner’s constitutional rights, thus the district court erred in affirming the trial court’s denial of petitioner’s motion to suppress. Accordingly, the petition for writ of certiorari is granted, the decision of the District Court of Appeal, First District, is quashed, and this cause is remanded to the district court with directions to remand to the trial court for proceedings not inconsistent with this opinion.

It is so ordered.

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

OVERTON, J., dissents with an opinion.

OVERTON, Justice,

dissenting.

I dissent. The unrefuted circumstances in this cause fail to justify the conclusion reached by the majority that the consent to search was given in such a coercive setting that it did not rise to the level of a voluntary consent to search. I would find the consent voluntarily given and the subsequent search of the barn and seizure of the marijuana to be valid.

      . U.S.Const. Amend. IV:
      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
      U.S.Const. Amend. XIV § 1:
      [N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

      . Art. 1, § 12, Fla.Const.:
      Searches and seizures. — The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. Articles or information obtained in violation of this right shall not be admissible in evidence.


author: OVERTON, Justice.

text:
    Luis Ignacio ALBO, Appellant, v. STATE of Florida, Appellee.
    No. 56121.
    Supreme Court of Florida.
    Jan. 24, 1980.

      Joel Hirschhorn of Hirschhorn & Freeman, Miami, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., Miami, for appellee.
   OVERTON, Justice.

This is an appeal from a circuit court’s judgment which directly upheld the constitutional validity of that portion of section 893.13, Florida Statutes (1977), which makes unlawful the possession of cannabis in an amount greater than one hundred pounds. We have jurisdiction and affirm.

At the hearing upon the motion to suppress, Detective Mastaler testified that on June 26, 1978, he and Detective Guilfoyle were dressed in plain clothes and traveling in an unmarked car. He noticed a motor home van driven by defendant fail to yield the right-of-way to a vehicle making a left turn, nearly causing an accident. The detectives observed additional traffic violations by the defendant in his lane-changing and excessive speeding. The back end of defendant’s motor home was also weighted down, causing it to fishtail. Mastaler testified that because their unmarked car had no red light or siren, they attempted to call for a uniformed unit to stop the defendant. Before a uniformed unit could be obtained, however, the defendant pulled into a restaurant parking lot, parked the motor home and got out. The detectives drove up next to defendant’s motor home and asked for defendant’s driver’s license and vehicle registration. Defendant said he had no registration, at which time Mastaler testified that he suspected that the motor home van was stolen. Defendant was advised of his Miranda rights. Mastaler went to the front windshield of defendant’s motor home to look on the dashboard for the vehicle identification number. He noticed thirty-five to forty bales stacked in the middle and rear portions of the motor home. The bales were square and wrapped in burlap and black plastic. Mastaler testified that through his two and one-half years experience in narcotics investigations and undercover purchases, he knew the bales to be marijuana. Defendant was cited for traffic violations and arrested for possession of marijuana; however, the traffic violations were later dismissed for failing to put the statute numbers on the tickets. After defendant’s arrest, Mastaler took defendant’s keys and entered the vehicle, confirming that the bales were marijuana. Defendant’s motion to suppress all the evidence seized was denied. Defendant’s motion to dismiss the information and to declare section 893.13 unconstitutional was also denied. On appeal, defendant assigned as error the trial court’s denials of both motions.

Defendant’s constitutional argument is that the inclusion of “cannabis” in the classification of Schedule I of the Florida Comprehensive Drug Abuse Prevention and Control Act is unreasonable and violative of equal protection, thus rendering section 893.13 unconstitutional. We disagree and reaffirm this Court’s decision in Hamilton v. State, 366 So.2d 8, 10 (Fla.1979), wherein we stated:

There continues to be authority supporting the position that the health hazards of cannabis justify its proscription and its present classification. Although there is substantial expert opinion to the contrary, the fact that there continues to be expert opinion supporting the reasons which prompted the Legislature to enact this statute is sufficient to constitute a continuing rational basis for the act.

We again hold that the act does not contravene the equal protection clause of the constitution and that the classification of cannabis is not unreasonable or arbitrary.

The second question is whether the observation of the bales provided probable cause for defendant’s arrest and the immediate seizure of the marijuana. In Benefield v. State, 160 So.2d 706, 708 (Fla.1964), this Court stated that the test to determine probable cause is whether the facts and circumstances within the officer’s knowledge are sufficient in themselves to lead a reasonable man to believe that an offense has been committed.

In the instant case, Detective Mas-taler observed that thirty-five to forty bales in the motor home were square and wrapped in black plastic and burlap. In his two and one-half years of previous experience in undercover purchases and narcotics investigations, every bale he had ever purchased or seized had been packaged in an identical manner. Given his experience plus the defendant’s failure to produce the vehicle’s registration and the fact that the rear end of the motor home looked weighted down, the circumstances support Mastaler’s determination that the bales were marijuana. We find that the record established sufficient probable cause for a reasonable man to conclude that an offense was being committed.

Seizable items which inadvertently come into view of a law enforcement officer who has a right to be where he is may be used in the prosecution of the crime to which they related. Harris v. United States, 390 U.S. 234, 237, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).

The plain view doctrine was discussed in State v. Ashby, 245 So.2d 225, 228 (Fla.1971), wherein this Court held that observation of an object by a police officer in plain view is not a search when the officer has a legal right to be in the position to have that view. Such object may be seized by the officer and introduced into evidence. Jester v. State, 339 So.2d 242, 244 (Fla. 3d DCA 1976). When contraband is the object spotted in plain view, it may be immediately seized because of its nature. State v. Redding, 362 So.2d 170, 171-72 (Fla. 2d DCA 1978).

In the instant case Detective Mastaler suspected that the defendant’s motor home was stolen, and so he shined a flashlight onto the dashboard of defendant’s motor home in order to find the vehicle identification number. In trying to verify the ownership of the vehicle, Mastaler was acting within the scope of his lawful duties. He had the legal right to be in the parking lot positioned in front of the motor home. The subsequent observation of the thirty-five to forty bales by use of the flashlight does not render the search illegal or the evidence discovered inadmissible. United States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 71 L.Ed. 1202 (1927).

Given that the detectives observed the bales in plain view from a position where they had a legal right to be plus the existence of probable cause that an offense was being committed, we conclude there was no constitutional violation in the seizure of the marijuana bales. We affirm the rulings of the trial court.

It is so ordered.

ENGLAND, C. J., and BOYD, SUND-BERG, ALDERMAN and McDONALD, JJ., concur.

ADKINS, J., dissents.

      . Art. V, § 3(b)(1), Fla.Const.


text:
    STATE of Florida et al., Appellants, v. CITY OF MIAMI, a Municipal Corporation, Appellee.
    No. 58088.
    Supreme Court of Florida.
    Jan. 24, 1980.

      Janet Reno, State’s Atty., and Eric William Hendon, Asst. State’s Atty., Miami, for appellants.
    George F. Knox, Jr., City Atty., and Jose B. Alvarez, Deputy City Atty., Miami, Lu-den C. Proby, Jr. of Proby & Adkins, Coral Gables, and Brown, Wood, Ivey, Mitchell & Petty, New York City, for appellee.
   OVERTON, Justice.

This is a direct appeal from a final judgment validating revenue bonds in Dade County. We have jurisdiction. The questions we must decide are whether the issuance of the revenue bonds to finance the convention center-garage serves a valid municipal or public purpose and whether the City properly exercised its financing power.

In validating these revenue bonds, the trial court found the following facts. In 1964, the City Commission of Miami adopted a resolution providing for the issuance of $4,500,000 in convention center bonds. These bonds were sold in 1969, but construction of the convention center was delayed indefinitely due to increased costs. In 1977, the City of Miami (City) entered into an agreement with an architectural firm to prepare a master plan of the entire convention center site. Later that year, in an agreement between the City and the University of Miami (University), the City agreed to construct a convention center with a parking garage and further agreed to cause to be constructed a hotel and retail area. The City also agreed to provide the University with adequate parking in the parking garage. The University, in return, agreed to rent a conference center area for a term of thirty years with two thirty-year renewal options. In 1979, the City entered a development agreement in which the City agreed to lease to the developer certain properties for the purpose of constructing and operating a hotel and other facilities at its own expense for a term of forty-five years with a forty-five-year renewal option. The City agreed to construct a water plant to service the needs of the convention center and the hotel and further agreed to give the developer priority to reserve a share of the spaces in the parking garage. The City Commission approved the execution of the development agreement and adopted an ordinance authorizing the issuance of revenue bonds of the City in an amount not exceeding $60,000,000. The bonds were secured by a pledge of the net revenues derived by the City from or in connection with the convention center-garage and other revenues of the City exclusive of ad valorem tax revenues.

The trial court found that under the authority of the Florida Constitution and chapter 166, Florida Statutes (Municipal Home Rule Powers Act), the City was authorized to issue revenue bonds for the construction of the convention center-garage. The court expressly stated that:

The Convention Center-Garage serves a public purpose of the City and its financing and construction as herein authorized are in the public interest by providing exhibit, meeting, conference, parking and other facilities in the City for public, educational, civic, commercial and other organizations.

The trial court found that the City of Miami had properly proceeded under chapter 75, Florida Statutes, complying with each provision thereof, and further found that the bonds did not constitute or create a debt of the City or a pledge of its faith and credit.

The state contends that the bond validation should be denied on two grounds. First, the bond issuance does not comply with article VII, section 10, of the Florida Constitution in that the convention center-garage does not serve a public purpose. Second, the state argues that section 74 of the city charter requires an election which was not held; and, further, the partial lease of the premises for forty-five years is in violation of a thirty-year lease limitation in said section 74 which may void the lease and result in the city being forced to use a substantial additional portion of its general revenue to make bond payments.

Article VII, section 10, of the Florida Constitution prohibits a municipality from lending or using its credit to any private enterprise. When public revenue bonds are used to finance a project other than those described in section 10(c), the particular circumstances must be considered in determining whether the lending or use of public credit for the project is contemplated. The validity of the proposed public revenue bond financing project depends on whether the bond issuance serves a paramount public purpose. See Nohrr v. Brevard County Educational Facilities Authority, 247 So.2d 304 (Fla.1971). If the bond issuance serves a public purpose, then even an incidental benefit to a private entity will not negate the public character of the project. See Gate City Garage, Inc. v. City of Jacksonville, 66 So.2d 653 (Fla.1953). In addition, this Court has previously held that it is “impossible to conceive of a public improvement which will not incidentally benefit some private individual engaged in private enterprise for private gain.” See State v. Board of Control, 66 So.2d 209, 210 (Fla.1953).

In the instant case, it is our view that the convention center-garage does serve a valid public purpose. As noted by the trial court, this facility will provide a forum for educational, civic, and commercial activities and organizations. Further testimony at the bond validation proceeding indicated that this facility will also increase tourism and international trade. We have previously held that these interests serve a public purpose. See State v. Inter-American Center Authority, 84 So.2d 9 (Fla.1955). This Court has also recognized that the redevelopment of downtown areas with the aid of improved parking facilities serves a valid public purpose. See City of Naples v. Moon, 269 So.2d 355 (Fla.1972).

The incidental benefits accruing to the developer and the University are not so substantial as to tarnish the public character of this convention center-garage. The instant case is unlike the situation in State v. Jacksonville Port Authority, 204 So.2d 881 (Fla.1967), where the project served mostly private interests and the public had no control of the facilities for possibly seventy-five years.

The state alleges that our decision in Baycol, Inc. v. Downtown Development Authority, 315 So.2d 451 (Fla.1975), supports the view that the bond issuance in question does not serve a public purpose. We disagree. In Baycol, revenue bonds were sought to be issued to finance a public parking facility. The air rights above the facility were to be leased to a private developer for the construction of a shopping center. Finding that the need for the parking facility would only arise after completion of the shopping center, this Court refused to validate the bonds. In the instant case, however, there was an existing need and justification for the convention center-garage long before the contemplation of a hotel and retail area. The voters had approved this facility in 1964, and the City at that time did not contemplate the involvement of either the University or the developer. It is clear that the City’s dominant interest has continually been the construction of the convention center-garage, and the lease of property by the City is only incidental to the paramount public purpose.

The state asserts that section 74 of the city charter requires an election which has not been held and prohibits the lease of a portion of the facility for forty-five years. We reject these contentions and find these provisions constitute limitations on the borrowing and leasing powers of the City of Miami which have been nullified by section 166.021(4), Florida Statutes (1977).

The Municipal Home Rule Powers Act [Act] set forth in chapter 166, Florida Statutes, was intended to secure the grant of the broad home rule powers to municipalities as provided by article VIII, section 2 of the Florida Constitution. Municipalities are granted the authority to conduct municipal government, perform municipal functions, and render municipal services so long as the powers are exercised for municipal purposes. The Act not only fails to incorporate restrictions set forth in municipal charters, but also specifically provides that “[a]ny other limitation of power upon any municipality contained in any municipal charter enacted or adopted prior to July 1, 1973, is hereby nullified and repealed.” § 166.021(4), Fla.Stat. Our decision is in accordance with an opinion rendered by the attorney general. See 1973 Op.Atty.Gen. Fla. 073-446 (November 29, 1973).

Neither the Municipal Home Rule Powers Act nor the Florida Constitution requires an election to approve the issuance of revenue bonds which do not pledge ad valorem taxes. Therefore, an election is not necessary to approve the financing of this convention center-garage, but rather the City Commission may approve it.

The function of this Court in a bond validation proceeding is to determine whether the authorizing body has the power to act and whether it exercises that power in accordance with the purpose and intent of the law. See State v. City of Sunrise, 354 So.2d 1206 (Fla.1978); State v. Sarasota County, 372 So.2d 1115 (Fla.1979).

We find that the trial judge was correct in holding that the proposed issuance of bonds was authorized by law, and his final judgment validating the bonds is affirmed.

It is so ordered.

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

      . Art. V, § 3(b)(2), Fla.Const.

      . This section provides, in relevant part:
      Neither the state nor any . . . municipality . . shall become a joint owner with, ... or give, lend or use its taxing power or credit to aid any corporation, association, partnership or person


author: PER CURIAM.

text:
    FLORIDA BOARD OF BAR EXAMINERS. Re: PETITION FOR AMENDMENT TO RULES.
    No. 58522.
    Supreme Court of Florida.
    Jan. 29, 1980.
    Paul B. Anton, Chairman, Hollywood, and C. Graham Carothers, Tallahassee, of the Florida Board of Bar Examiners, for petitioner.
   PER CURIAM.

The Florida Board of Bar Examiners has proposed an amendment to Florida Supreme Court Bar Admissions Rule, article II, section 10(f), and has requested that section 21(c), rule III, Rules and Regulations of The Florida Board of Bar Examiners, be deleted. We grant the Board’s petition, and we delete section 21(c) from rule III and adopt the following amendment to article II, section 10(f):

(f) An applicant must successfully complete each of the three parts of the examination, and all successfully completed portions must have been administered within a period of 25 months. An applicant who fails five times to pass any part or who fails to pass all three parts within 25 months from first passing one part shall be ineligible to sit for any part of the examination until 11 months have elapsed. At the end of that period, the applicant must again successfully complete all parts including those, if any, previously passed. The Application for Admission to The Florida Bar must be filed not later than 180 days from the date of the notice that success has been attained on all three parts of the examination. Failure to comply with such filing deadline will result in required reapplication for admission to the Florida Bar Examination and a second successful completion of the three parts of the examination.

These amendments are effective immediately and shall apply retroactively.

It is so ordered.

ADKINS, BOYD, OVERTON, SUND-BERG, ALDERMAN and McDONALD, JJ., concur.

ENGLAND, C. J., dissents.

      . Section 21(c) provides:
      (c) An applicant who fails three times to pass Part I, or Part III, shall not be reexamined.


text:
    BALBOA INSURANCE COMPANY, Appellant, v. IMPERIAL LUMBER, a division of The Deltona Corporation, a Florida corporation; and Gale Gainesville Corporation, a Florida Corporation, Appellees.
    No. 00-279.
    District Court of Appeal of Florida, First District.
    Dec. 6, 1979.
    Donald E. Grincewicz, Law Office of Carroll S. Barco, Orlando, for appellant.
    Richard M. Goldstein, of Peeples, Earl, Smith, Moore & Blank, P. A., Miami, for Imperial Lumber.
    Lawrence G. Mathews, Jr., of Fawsett, Smith, Mackinnon & Mathews, P. A., Orlando, for Gale Gainesville Corp.
   PER CURIAM.

Upon consideration of the briefs, record, and oral argument of the parties in this cause, we find there is a genuine issue as to the material facts. The granting of the summary judgment was error. Manucy v. Manucy, 362 So.2d 478 (Fla. 1st DCA 1978), Wills v. Sears, Roebuck and Company, 351 So.2d 29 (Fla.1977). The order below is reversed and the cause remanded for a trial on the issues.

McCORD, Acting C. J., and ROBERT P. SMITH, Jr., and LARRY G. SMITH, JJ., concur.


text:
    Diane Harris HOLIFIELD, Appellant, v. Bishop C. HOLIFIELD, Appellee.
    No. LL-220.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1979.
    Stephen Marc Slepin of Slepin & Slepin, Tallahassee, for appellant.
    Rivers Buford, Jr., Tallahassee, for appel-lee.
   PER CURIAM.

Affirmed.

McCORD, LARRY G. SMITH and SHIVERS, JJ., concur.


text:
    Richard Carl WISCHMEIER, Petitioner, v. R. D. MASSEY and L. L. Wainwright, Respondents.
    No. SS-361.
    District Court of Appeal of Florida, First District.
    Jan. 10, 1980.
    Richard Carl Wischmeier, petitioner, pro se.
    Jim Smith, Atty. Gen., A. S. Johnston, Asst. Atty. Gen., for respondents.
   PER CURIAM.

The response to the order to show cause having been considered, the order is discharged and the petition for writ of habeas corpus, or for writ of mandamus, is denied,

MILLS, C. J., and SHAW and WENT-WORTH, JJ., concur.


author: BARKDULL, Judge.

text:
    Cosme RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 79-458.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1980.
    Rehearing Denied Feb. 26, 1980.
    Bierman, Sonnett, Beiley & Shohat and Lawrence E. Besser, Miami, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   BARKDULL, Judge.

Appellant, defendant in the trial court, seeks review of his conviction and sentence to ten years in the State penitentiary plus ten years probation, entered by the trial court pursuant to a jury verdict which found the appellant guilty of second degree murder.

The appellant alleges two points by this appeal: (1) that the trial court erred in denying the appellant’s’ motions for judgment of acquittal; (2) that the trial court improperly instructed the jury on the applicable law. We find both points to be without merit.

A motion for judgment of acquittal in a criminal case on the grounds of insufficient evidence to support the conviction admits all facts in evidence and every reasonable conclusion inferable therefrom favorable to the State. Weldon v. State, 287 So.2d 133 (Fla. 3d DCA 1973); Spinkellink v. State, 313 So.2d 666 (Fla.1975); Leath v. State, 333 So.2d 122 (Fla. 1st DCA 1976). In that posture, the facts in the instant case reveal the following:

On Sunday evening, July 3,1977, the deceased and his girl friend went to visit some friends who were staying in that section of the Castaways Motel located on the east side of Collins Avenue, on the ocean, in the unincorporated area of Miami Beach. At approximately 2:00 A.M., July 4, the decedent, his girl friend, and another boy and girl had left a friend’s room and were walking on the sidewalk in front of the Castaways, when they met the defendant and a couple of his friends. The defendant, or one of his friends, made a comment directed to the deceased’s girl friend and the deceased started fighting with one of the defendant’s friends. At this point, the defendant picked up a two-by-six about three feet long that was used to block the wheels of a boat trailer parked on the street. The two-by-six was solid, having no cracks, rot or any other defect. A crowd had assembled by that time and someone suggested the fight be a fair one. The defendant then dropped the board. The decedent and the boy he was fighting with headed toward the beach to continue the fight (the crowd followed). They crossed the parking lot and, just before they crossed the fence to go down to the beach, the decedent’s girl friend noticed the defendant had picked up the board and was carrying it with him to the beach. She told him not to hit her boy friend with the board and he threatened to hit her first. The party proceeded across the beach to the water’s edge, where the fight resumed. At first, the deceased was losing the fight but he got the upper hand and was sitting on the other boy, striking him in the head, when the defendant came running across the sand toward the deceased brandishing the board like a baseball bat. While in full stride, he swung the board with such force that upon hitting the deceased’s right forehead the board broke in two. The blow rendered the deceased comatose and he was taken to the hospital, where he remained in that condition for about six days. He stayed in the hospital for about six weeks. Upon his release, he had occasional seizures and complained of headaches. Later he complained of chest pains and was hospitalized and released. About three months after receiving the blow he died. An autopsy revealed the cause of death to be a pulmonary embolism. The cause of death was determined to be a hard blow to the head by a blunt object. The blow to the head caused contusions on the brain, and as the brain tissue began to break down it leaked lipids [fat] into the circulation which caused the blood to clot. One or more of these clots lodged in the deceased’s lungs, eventually killing him.

The test to be applied on review of denial of a motion for judgment of acquittal is not whether, in the opinion of the trial court or the appellate court, the evidence fails to exclude every reasonable hypothesis but that of guilt, but rather whether the jury (as the trier of the fact) might reasonably so conclude. Hernandez v. State, 305 So.2d 211 (Fla. 3d DCA 1974); Piantadosi v. State, 311 So.2d 742 (Fla. 3d DCA 1975); Zuberi v. State, 343 So.2d 664 (Fla. 3d DCA 1977). Suffice it to say that, based on the foregoing facts, there was substantial competent evidence before the trial court from which the jury, as trier of the fact, could reasonably conclude that the defendant was guilty of the offense charged.

As to the second point on appeal, a review of the entire charge reveals the trial court’s charge to the jury was proper and is a correct statement of the law of this State. Tunsil v. State, 338 So.2d 874 (Fla. 3d DCA 1976); Hallman v. State, 371 So.2d 482 (Fla.1979).

Therefore, the conviction and sentence under review herein is hereby affirmed.

Affirmed.


author: SCHWARTZ, Judge.

text:
    William Victor GRUMAN, Petitioner, v. BANKERS TRUST COMPANY, a New York Corporation, Respondent.
    No. 79-1751.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1980.
    Rehearing Denied Feb. 29, 1980.

      Dubbin, Schiff, Berkman & Dubbin and Evan J. Langbein, Miami, for petitioner.
    Mershon, Sawyer, Johnston, Dunwody & Cole and H. Michael Madsen, Pyszka, Kes-sler & Adams and William M. Douberley, Miami, for respondent.
    Before PEARSON and SCHWARTZ, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   SCHWARTZ, Judge.

The petitioner, who is the counter-defendant below in an action for the conversion of a vessel, seeks certiorari review of an order requiring that he answer an interrogatory which asked for information as to every bank account in which he held an interest. Gruman has unequivocally conceded before us in open court that he utilized the funds received for the property in question, some $140,000, for his own personal benefit. Particularly in the light of this stipulation, the interrogatory before us is substantially overbroad in that, without a showing of even potential relevance to the issues in the case, it seeks personal financial information of.a type ordinarily discoverable only in aid of execution after judgment has been entered. See Cooper v. Fulton, 117 So.2d 33, 35-36 (Fla. 3d DCA 1960); cf. Tennant v. Charlton, 377 So.2d 1169 (Fla.1979); Leonhardt v. Cammack, 327 So.2d 848 (Fla. 4th DCA 1976), cert. denied, 339 So.2d 1167 (Fla.1976). Therefore, we grant the petition and quash the order under review. We do so, however, specifically without prejudice (a) to the respondent’s right to discover the manner by which Gruman disposed of the particular funds in issue, and (b) to further discovery, if it becomes appropriate, as to punitive damages or.in aid of execution.

Certiorari granted.

      . He contends that the only remaining issue below on the merits is whether he had the authority to sell the vessel on his own behalf.

      . The respondent makes no contention that, as in Tennant, the information is discoverable on the ground that it is pertinent to the issue of punitive damages.

      . Evidence, for example, that he attempted to secrete the moneys would be pertinent on the substantive issue of his right to dispose of the vessel. See Helton v. State, 135 Fla. 458, 185 So. 864 (1938); Long v. State, 11 Fla. 295 (1866).

      . See note 2, supra; Tennant v. Charlton, supra.


text:
    Seymour BENSON, Appellant, v. Iris L. BENSON, Appellee.
    No. 78-2546/NT4-66.
    District Court of Appeal of Florida, Fifth District.
    Jan. 16, 1980.
    Rehearing Denied March 3, 1980.
    Seymour Benson, pro se, and Kenneth W. McIntosh, Sanford, for appellant.
    Irving B. Levenson and Michael Winer of Sibley, Giblin, Levenson & Glaser, Miami Beach, for appellee.
   PER CURIAM.

AFFIRMED.

CROSS, J., and ANSTEAD, HARRY LEE, and MOORE, JOHN H., II, Associate Judges, concur.