author: SUNDBERG, Chief Justice.

text:
    STATE of Florida, Appellant, v. Lee HAGAN, Jr. and James George Stephens, Appellees.
    No. 56680.
    Supreme Court of Florida.
    Sept. 4, 1980.

      Jim Smith, Atty. Gen., and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellant.
    No appearance, for appellees.
   SUNDBERG, Chief Justice.

Appellee Lee Hagan, Jr. was charged by information with using more than one trawl net in Charlotte Harbor, Florida, and with using a trawl with a net greater than twenty-five feet, contrary to chapter 76-343, section 1, Laws of Florida, as amended by chapter 77-525, section 1, Laws of Florida. Appellee James George Stephens was charged with violation of the same statute for pulling more than one twenty-five-foot net in Charlotte Harbor. Appellees filed motions to dismiss the charges on the ground that the statute was unconstitutionally vague in defining the proscribed conduct. Following a hearing on the motions, the trial court entered its order holding the statute unconstitutional. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution (1972).

Chapter 77-525, section 1, Laws of Florida, provides:

Section 1. No trawling operation shall use more than one trawl net which shall not exceed 25 feet in length, for the taking of shrimp in the Charlotte County waters of Charlotte Harbor, in the inland waters of the county, or within one-half mile of such inland waters.

The trial court found the special law unconstitutional for the following reasons:

1. [T]he special law is unconstitutionally vague for failure to identify with particularity the boundaries of the prohibited netting areas. The Court specifically finds that the terms “Charlotte County waters of Charlotte Harbor”, “in the inland waters of the County”, and “within one-half mile of such inland waters” are insufficient to allow the average person to readily identify the boundaries of the protected area;
2. [T]he special law is unconstitutionally vague for failure to define the terms “trawling operation” and “trawl net.” Specifically, the law purports to prohibit certain activities of “trawling operations” and by implication would permit those same activities by other than “trawling operations”. The Court finds that the average person cannot be expected from a plain reading of the law to determine whether a contemplated activity would or would not constitute a “trawling operation” and whether a particular net is or is not a “trawl net”;
3. [T]he special law is too vague to form the basis for a criminal prosecution of a natural person since it appears on its face not to proscribe any conduct of natural persons, but proscribes only certain activities of “trawling operations” without defining that term to include natural persons;
4. [T]he special law violates Article III, Section 11, (a)(19) of the Florida Constitution prohibiting special laws pertaining to fresh water hunting or fishing in that any reasonable interpretation of the term “inland waters of the County” would include fresh water areas[.]

Unfortunately, we have not been graced by a brief filed on behalf of appellees. We have, nonetheless, carefully considered the matter and conclude that the trial court erred in holding the special law unconstitutional.

First, we note that we are concerned only with the criminal provision with which appellees were charged, i. e., engaging in allegedly unlawful activity in the Charlotte County waters of Charlotte Harbor. Ap-pellees may not challenge the constitutionality of a portion of the statute which does not affect them. State v. Hill, 372 So.2d 84 (Fla. 1979); Jordan v. State, 334 So.2d 589 (Fla. 1976); State ex rel. Hoffman v. Vocelle, 159 Fla. 88, 31 So.2d 52 (1947); Gill v. Wilder, 95 Fla. 901, 116 So. 870 (1928). Therefore, we do not consider the constitutionality of the statute insofar as it affects “inland waters of the county” or “within one — half mile of such inland waters.” This disposes of the asserted infirmity based on violation of article III, section ll(a)(19), Florida Constitution, and of the asserted void-for-vagueness infirmity based on these statutory phrases.

In determining whether a statutory provision is so vague as to violate due process of law, we must consider whether the provision is so vague that men of common intelligence must necessarily guess at its meaning. Newman v. Carson, 280 So.2d 426 (Fla. 1973). The test of vagueness of a statute is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. Washington v. State, 302 So.2d 401 (Fla. 1974), cert. denied, 421 U.S. 918, 95 S.Ct. 1582, 43 L.Ed.2d 786 (1975). In applying these principles to the case before us, we conclude that the statutory terms “Charlotte County waters of Charlotte Harbor,” “trawl net,” and “trawling operation” are not so vague as to render chapter 77-525 unconstitutional on its face.

In concluding that these statutory terms rendered the special law unconstitutionally vague, the trial court relies in part on the failure of the legislature to define the terms within the statute itself. The legislature’s failure to define a statutory term does not in and of itself render a penal provision unconstitutionally vague. In the absence of a statutory definition, resort may be had to case law or related statutory provisions which define the term, and where a statute does not specifically define words of common usage, such words are construed in their plain and ordinary sense. See Tingley v. Brown, 380 So.2d 1289 (Fla. 1980); Milazzo v. State, 377 So.2d 1161 (Fla. 1979); Bellamy v. State, 347 So.2d 419 (Fla. 1977); Goldstein v. Acme Concrete Corp., 103 So.2d 202 (Fla. 1958). The prohibited netting area encompassed by the Charlotte County waters of Charlotte Harbor may be ascertained with particular exactitude by resort to pertinent Florida law. See § 7.08, Fla.Stat. (1979) (delineating the boundary lines of Charlotte County); art. II, § 1(a), Fla.Const. (defining the western boundary of the state of Florida as extending three leagues seaward from the Gulf of Mexico coastline). The appellees here are presented with no greater task than that generally facing an individual in locating the physical boundaries of any jurisdiction to enable him to determine applicable law.

We also believe that the terms “trawl net” and “trawling operation” have a definite meaning as used in connection with the fishing industry. As to the term “trawl net,” we note that Webster’s Third New International Dictionary (3d ed. 1976), at page 1031, defines the term as “a large conical net with a device for keeping its mouth open that is dragged along the sea bottom in gathering fish or other marine life.” A statute may satisfy due process requirements even though it contains general terms and does not furnish detailed plans and specifications of the act or conduct proscribed. Slaughter v. State, 301 So.2d 762 (Fla. 1974), cert. denied, 420 U.S. 1005, 95 S.Ct. 1448, 43 L.Ed.2d 763 (1975); Orlando Sports Stadium, Inc. v. State, 262 So.2d 881 (Fla. 1972).

We also reject the trial court’s holding that the special law is void for vagueness on the basis it proscribes trawling operations without defining that term to include natural persons. Laws by their very nature regulate the activities of persons. Any trawling operation which is conducted or initiated by human agency is subject to the proscription of the special law.

Accordingly, we hold that appellees were validly charged with a criminal offense pursuant to chapter 77-525, Laws of Florida. The decision of the trial court below is reversed and this case is remanded to the trial court for proceedings not inconsistent with this decision.

It is so ordered.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jerry Kenneth SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 57486.
    Supreme Court of Florida.
    Sept. 4, 1980.
    No appearance for appellant.
    Jim Smith, Atty. Gen., and Phillip D. Havens, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

Affirmed. McArthur v. State, 351 So.2d 972 (Fla.1977).

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


author: OVERTON, Justice.

text:
    Lawrence HAMM, Appellant, v. STATE of Florida, Appellee.
    No. 57969.
    Supreme Court of Florida.
    Sept. 4, 1980.

      Nelson E. Bailey of Bailey & Jordan, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, Florida, for appellee.
   OVERTON, Justice.

This is an appeal from a decision of the County Court of Palm Beach County, which upheld the constitutionality of section 316.-211, Florida Statutes. The statute requires that the operator of a motorcycle wear protective headgear.

We expressly upheld the constitutionality of section 316.211 in State v. Eitel, 227 So.2d 489 (Fla.1969), finding that the statute had a rational, valid purpose, and could withstand attacks of both vagueness and unconstitutional delegation. Appellant contends that our recent decision in Satz v. Perlmutter, 379 So.2d 359 (Fla.1980), indicates a departure from the Eitel decision. The Perlmutter decision, which allowed a competent adult patient to discontinue extraordinary medical treatment, was specifically limited to the facts of that case and clearly has no application to the legitimate exercise of state police power in the instant case. We reaffirm our decision in Eitel and uphold the appellant’s conviction.

It is so ordered.

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


text:
    Dwayne WALTON, Appellant, v. STATE of Florida, Appellee.
    No. 57992.
    Supreme Court of Florida.
    Sept. 4, 1980.
    Jack 0. Johnson, Public Defender, and Michael S. Becker, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

Affirmed. State v. Cain, 381 So.2d 1361 (Fla.1980).

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


text:
    THE FLORIDA BAR, Complainant, v. Sidney KATES, Respondent.
    No. 58094.
    Supreme Court of Florida.
    Sept. 4, 1980.

      Gerald M. Wochna, Boca Raton, Harris K. Solomon, Branch Staff Counsel, Fort Laud-erdale, and James P. Hollaway, Deputy Staff Counsel, Tallahassee, for complainant.
    Sidney Kates, in pro. per.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Sidney Kates, a member of The Florida Bar, is before us on complaint of The Florida Bar and report of the referee. No petition for review has been filed. Jurisdiction vests in this Court pursuant to article V, section 15, of the Florida Constitution.

The referee found that Mrs. Mary Bressler hired Kates in September of 1975 to probate the simple and uncluttered estate of her deceased husband. Mrs. Bres-sler was inexperienced in legal affairs and totally dependent upon Kates to protect her interests in this matter. Due to Kates’ neglect in advising and assisting Mrs. Bres-sler, she failed to perform her duties as executrix, resulting in her removal as personal representative and the loss of her fee for administering the estate. This neglect constituted a violation of Florida Bar Code of Professional Responsibility, Disciplinary Rules 6-101(A)(3) and 7-101(A)(2) and (3).

Moreover, the referee found that Kates failed to properly account for trust moneys by improperly commingling with his own funds $74.50 that Mrs. Bressler had provided for costs. Failure to keep trust account records also caused Kates to collect the $5.00 fee for the state certificate declaring the estate nontaxable from both Mrs. Bressler and the successor personal representative. These acts were in violation of Florida Bar Integration Rule, article XI, rule 11.02(4), and Florida Bar Code of Professional Responsibility, Disciplinary Rule 9-102(B)(3).

The referee recommended that Kates be found guilty of misconduct and suspended from the practice of law for a period of three months and one day and thereafter until he shall present proof of rehabilitation by showing that he has the facilities, ability, and inclination to supply his clients with quality legal services. Kates has previously been found guilty of professional misconduct which resulted in a ninety-day suspension beginning June 30, 1978.

We have reviewed the record and agree with the referee’s findings and recommendation of guilt. Accordingly, Sidney Kates is hereby suspended from the practice of law, effective immediately, for a period of three months and one day and thereafter until he shall present proof of rehabilitation as described above. Costs are hereby assessed against Kates in the amount of $530.99.

It is so ordered.

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

      . The Florida Bar v. Kates, 360 So.2d 776 (Fla. 1978). In that case, Kates agreed to represent a client in a small claims court action, yet failed to attend the pretrial or trial. The client prevailed without Kates.


author: McDonald, justice.

text:
    THE FLORIDA BAR. In re FLORIDA RULES OF PROBATE AND GUARDIANSHIP PROCEDURE.
    No. 58985.
    Supreme Court of Florida.
    Sept. 4, 1980.
    Leonard H. Gilbert, President of The Florida Bar, William R. Platt, Tampa, for Probate and Guardianship Rules Committee of The Florida Bar.
    Judith F. Todd, Miami, for Probate and Guardianship Rules Committee of the Real Property, Probate and Trust Law Section of The Florida Bar.
    Jim Altman of Altman & Altman, New Port Richey.
   McDonald, justice.

The probate and guardianship rules were adopted and approved in March 1977 and reported at 344 So.2d 828 (Fla.1977). The Florida Bar, acting through its Probate and Guardianship Rules Committee and the Probate and Guardianship Rules Committee of the Real Property, Probate and Trust Law Section of The Florida Bar, has recommended certain changes.

The following changes are made to these rules and shall supersede the previous rules, effective 12:01 a. m., January 1, 1981.

RULE 5.020. PLEADINGS; VERIFICATION; MOTIONS: COPIES

(a) Forms of Pleading. Pleadings shall be signed by the attorney of record, and by the pleader when required by these rules. All technical forms of pleadings are abolished. No defect of form impairs substantial rights, and no defect in the statement of jurisdictional facts actually existing renders any proceeding void.

(b) Petition. The petition shall contain a short and plain statement of the relief sought, the grounds therefor, and the jurisdiction of the court where the jurisdiction has not already been shown.

(c) Any other application to the court for an order may be by written motion, unless made orally during a hearing or trial. The motion shall state with particularity the grounds therefor and shall set forth the relief or order sought.

(d) A motion for rehearing of any order or judgment shall be filed not later than ten days after the entry of the order or judgment.

(e) (e) Verification. When verification of a document is required by these rules or the FPC, the document filed shall include an oath, affirmation or the following statement:

“Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief.”

(4) (f) Copies. In adversary proceedings, or when otherwise required by these rules, copies of all pleadings and motions shall be served on the attorney of record of each interested person, and on each interested person not represented by an attorney of record.

Committee Notes:

1977 Revision: Editorial change (rule) and expansion of committee note.

Subparagraphs (a), (b), and (d) are substantially the same as subparagraphs (a), (b), and (f) of prior Fla.R.P. & G.P. 5.030. Subparagraph (c) taken from FPC 731.104. For adversary proceedings see new Fla.R.P. & G.P. 5.025. Notice of administration is not a pleading within the meaning of this rule.

1980 Revision: Subparagraphs (c) and (d) have been redesignated as (e) and (f). New subparagraphs (c) and (d) are added to provide for the use of motions in probate proceedings other than adversary proceedings and to specifically authorize a procedure for rehearing.

RULE 5.040. NOTICE; METHOD AND TIME; PROOF

(a)Formal Notice.

(1) When formal notice is required, the petitioner shall serve a copy of the petition or other pleading on any interested person or his attorney if he has appeared by an attorney or requested that notice be sent to his attorney, together with a notice requiring the person served to file his written defenses to that petition within 20 days after service of such formal notice, exclusive of the day of service, and to serve a copy on petitioner’s attorney, and notifying the person served that failure to file and serve written defenses within the time required may result in a judgment or order being entered in due course.

(2) If there is no written defense js served and filed on-the petitioner within 20 days after from the service of the petition, the petitioner shall be considered ex parte, unless the court orders otherwise. If a written defense is timely served and filed, a hearing shall be set and reasonable notice given.

(3) Formal notice shall be served:

a.By any form of mail requiring a signed receipt as follows:

1. On his attorney of record, if any, or to the post office address given in his demand for notice, if any;

2. On an individual other than an incompetent, by mailing a copy to his dwelling house or usual place of abode or to the place where he regularly conducts his business or profession;

3. On an incompetent person, by mailing a copy to the incompetent, to the person having custody of the incompetent, and to any legal guardian of the incompetent at their respective dwelling houses, usual places of abode or regular places of business or profession;

4.On a corporation by mailing a copy to the corporation at its last known address; or

b. As provided in Chapter 48, Florida Statutes; or

c. In the circumstances provided in Chapter 49, Florida Statutes, in the manner provided therein; or

d. By an elisor as may be provided in the Rules of Civil Procedure.

(4) If service is made under Chapters 48 or 49, Florida Statutes, then proof of service shall be made as provided therein.

(5) If service is made by mail, then proof of service shall be by verified statement affidavit of the person mailing service, and there shall be attached to such verified statement affidavit the signed receipt or other evidence satisfactory to the court that delivery was made to, or refused by, the addressee or his agent.

(b) Informal Notice.

(1) When informal notice of a petition or other proceeding is required or permitted, it shall be served on the person or his attorney as provided in the Rules of Civil Procedure relating to service of pleadings.

(2) Proof of service shall be made by filing an attorney’s certificate of service or by verified statement affidavit if filed by a person who is not a member of The Florida Bar.

(3) Unless otherwise specifically provided, informal notice of every petition or proceeding affecting property rights or interests shall be given to interested persons. The requirement for giving of informal notice may be specifically waived by will or by the court-upon-good cause shown.

(c) “Notice” shall mean informal notice unless formal notice is specifically provided for or required.

(d) In actions when the parties are unusually numerous, the court may regulate the service contemplated bv these rules on motion or on its initiative in such manner as may be found to be just and reasonable.

(el Formal notice may be given in lieu of informal notice at the option of the moving party unless the court orders otherwise. When such formal notice is given to any party, it shall be given to all parties entitled to notice.

Committee Notes:

1975 Revision: Subparagraph (a) incorporates the provisions of FPC 731.301(l)(a)-(c) with editorial changes. The committee considered that formal notice should require the filing and service of a written defense within 20 days after service, and the person served notified as to what might result should he fail to file and serve his defenses within the time required.

Subparagraph (b) incorporates the provisions of FPC 731.301(2) and 731.301(4). The committee included the provisions for specific waiver of informal notice.

Subparagraph (c) reflects the definition in FPC 731.201(20).

1977 Revision: To clarify requirement of service of notice and to authorize service by an elisor.

1980 Revision: Subparagraph (a)(2) amended to conform to (a)(1), authorizes court to give relief from default. Editorial changes.

Subparagraphs (a)(5) and (b)(2) conform rules to FPC 731.301(l)(c) (1977).

Subparagraph (b)(3) deletes reference to court granting waiver of notice.

New paragraph (d) gives court power to relax notice requirements when numerous parties involved.

New paragraph (e) authorizes moving party to select formal notice in any proceeding unless court directs otherwise, thereby obviating delays regarding mode of notice and conforming rule to common practice.

RULE 5.060. REQUEST FOR NOTICES AND COPIES OF PLEADINGS

(a) Any interested person who desires notice of proceedings in the estate of a decedent or ward may file a separate written request for notice of further proceedings, designating therein his residence and post office address. When such person changes his residence or post office address, a new designation of such change shall be filed in the proceedings. A person filing such request, or address change, shall also deliver a copy thereof to the clerk, who shall forthwith mail it tó the attorney for of the personal representative or guardian, noting on the original the fact of mailing.

(b) A party filing a request shall be served thereafter by the moving party with notice of further proceedings and with copies of subsequent pleadings and papers as long as the party is an interested person.

Committee Notes:

1975 Revision: This rule substantially incorporates the provisions of prior Fla.R.P. & G.P. 5.060 except that now a copy of the request shall be mailed by the clerk only to the attorney for the personal representative or guardian. Even though a request under this rule has not been made, informal notice as provided in Fla.R.P. & G.P. 5.040(b)(3) may still be required.

1977 Revision: Editorial and citation form change in committee note.

1980 Revision: Caveat, the personal representative may want to give notice to parties even though not required, for example, where an independent action has been filed on an objected claim.

RULE 5.205. “DEATH CERTIFICATE FILING”

(a) An official record of the death of a decedent shall be filed bv the personal representative, if any, or the petitioner in each of the following proceedings and at the times specified:

(1) Administration of decedent’s estate-within three (3) months following the date of the first publication of the notice of administration.

(2) Ancillary proceedings-within three (31 months following the first publication of notice to creditors.

(31 Family administration-at any time prior to entry of the order of family administration.

(41 Summary administration-at any time prior to entry of the order of summary administration.

(51 Disposition without administration-at the time of filing the application for disposition without administration.

(61 Determination of beneficiaries-at any time prior to entry of the final judgment determining beneficiaries.

(71 Determination of homestead-at any time prior to entry of the final judgment determining homestead status of real property.

(bl Upon verified petition by the personal representative, if any, or the petitioner, the court mav enter an order waiving compliance with this rule, without notice or hearing.

(cl The court may, without notice or hearing, enter an order requiring the personal representative, if any, or the petitioner to file an official record of death at any time during the proceedings.

Committee Notes:

1980 Revision: New. This rule reflects a new procedural requirement not founded upon a statute or rule. This rule is intended to provide a uniform procedure for filing an official record of death in any judicial or statutory proceeding upon the death of a decedent. The court may, upon ex parte application, waive compliance with this rule or require filing at any stage in the proceedings.

Statutory Reference:

FPC 731.103, evidence as to death or status.

RULE 5.340. INVENTORY

(a)Within sixty (60) days after issuance of letters, a personal representative who is not a curator or a successor to another personal representative who has previously discharged the duty, shall file an inventory of the property of the estate listing it with reasonable detail, and including for each listed item its estimated fair market value at the date of decedent’s death. Homestead real property shall be so designated. Real property located in Florida and personal property wherever situated of a decedent who is domiciled within this state shall be inventoried, if known. Real and personal property within this state owned by a decedent who is domiciled outside of this state shall be inventoried.

(b) Time for filing inventory may be extended by the court.

(c) Within the time-allowed for filing the inventory-; — tThe personal representative shall send a copy of the inventory to all interested persons who have requested it in writing.

(d) If any property not included in the original inventory comes to the knowledge of a personal representative, or if the personal representative learns that the estimated value or description indicated in the original inventory for any item is erroneous or misleading, he shall file a supplementary inventory showing the estimated value at the date of the decedent’s death of the new item or the revised estimated value or description, and furnish copies in accordance with paragraph (c) of this rule.

Committee Notes:

1975 Revision: Orderly administration of an estate requires proper inventory of all assets at an early date.

Rights to abbreviated administration procedures can be determined only after proper inventory. Assignment of homestead carries out the constitutional provision, puts all interested persons on notice, and aids real property title research.

Changes in sub (c) provide for timely notice to interested persons who have given written notice of their interest and request.

Statutory References:

As to:

(a) First sentence tracks FPC 733.604(1). Second sentence relates to FPC 732.4015, homestead, and determination of right to family administration under FPC 735.101 or duty to fully administer.

(b) Sets forth the inherent power of the court.

(c) Tracks FPC 733.604(2) except to provide time requirement and provide for request “in writing.”

(d)Tracks FPC 733.606.

1977 Revision: Unchanged.

1980 Revision: Eliminates the time limit in requesting a copy of the inventory by an interested party or in furnishing it by the personal representative.

RULE 5.345. ELECTION OF FISCAL YEAR; INTERIM ACCOUNTINGS; OBJECTIONS TO INTERIM AC-COUNTINGS

(a) The personal representative may select a fiscal year.

(b) The personal representative may elect to file an interim accounting at any time. The interim accounting shall contain a full and correct account of all the receipts and disbursements of the estate since the date of the last accounting, and if none, from the commencement of administration, and shall include a statement of the assets of the estate at the end of the accounting period. Real estate need not be specifically described, but shall be identified as to nature and location.

(c) Substantiating papers need not be filed with the interim accountings, but shall be available for inspection when the court or any interested person requests.

(d) The personal representative shall serve notice of the filing and a copy of the interim accounting on all interested persons. The notice shall state that it is an application for the approval of the accounting and shall notify the person served that any objection to the accounting, or any item thereof, stating the basis for the objection. must be filed in writing within 30 days after service of notice or the interim accounting shall be approved as filed.

(e) Any interested person may file an objection . stating the basis therefor, in writing to the interim accounting or any item thereof within 30 days after the notice of filing is served upon him in accordance with subsection (d).

(f) After the expiration of the time for filing of objections, if objections to the interim accounting have been timely filed, the personal representative or the objecting party may apply to the court for a hearing thereon upon reasonable notice to all interested persons.

(g)If no objection is timely filed to an interim accounting, the accounting shall be deemed approved as filed and thereafter not subject to objection by any interested person.

Committee Notes:

1977 Revision: Change in (a) of rule to authorize selection of fiscal year without unnecessary requirements and change in committee note to eliminate (f) in statutory reference to conform to statutory renumbering.

FPC 733.901 sets forth the legislative intent that interim accountings may be filed. The rule provides for the same conditions as with final accountings. Notwithstanding the 12 month rule, a fiscal year election may be prudent for tax reasons.

Should interim accountings be filed, the rule provides the due process inherent in the statute for such accountings.

Statutory References:

FPC 733.901(1) sets forth the requirement for filing the final accounting within 12 months, effectively placing all estates on a fiscal year for administration purposes.

FPC 733.901(1) clearly implies periodic accountings may be rendered.

The rule carries forth the filing, notice, time for objection, and approval of interim accounting provisions of FPC 733.901 for final accounts.

1980 Revision: Change in (d) to require the notice to state that the basis for an objection is necessary. Change in (e) to require any person filing an objection to set forth the basis of such objection.

RULE 5.400. DISTRIBUTION; FINAL DISCHARGE

(a) When a personal representative has completed administration except for distribution, he shall file a final accounting and a petition for discharge providing the following:

(1) A complete accounting of all receipts and disbursements since the date of the last accounting, and if none, from the commencement of administration.

(2) A statement that he has fully administered the estate by making payment, settlement or other disposition of all claims that were presented, and has provided for payment of taxes and expenses of administration.

(3) The amount of compensation either paid or to be paid to the personal representatives, attorneys, accountants, appraisers or other agents employed by the personal representative.

(4) A schedule of any prior distributions.

(5) The proposed distribution of the remaining assets.

(6) A statement that objections to the accounting, the compensation paid or proposed to be paid or proposed distribution of assets . stating the basis for such objection. must be filed within 30 days from the date of service.

(b) The final accounting and petition for discharge shall be filed and served on all interested persons within 12 months after issuance of letters unless the time is extended by the court for cause shown after notice to interested persons. The petition to extend time shall state the status of the estate and the reason for the extension.

(c) If no objection to the final accounting, to the compensation, or to the petition for discharge has been filed within 30 days from the date of service of copies on interested persons, the personal representative may distribute the estate according to the plan of distribution set forth in the petition without a court order. Upon receipt of evidence that the estate has been properly distributed and that claims of creditors have been paid or otherwise disposed of, the court shall enter an order discharging the personal representative and releasing the surety on any bond.

(d) If an objection is made to:

(1) The amount or necessity of any compensation paid or proposed,

(2) The final accounting, or

(3)The petition for discharge, within the time allowed, the court upon reasonable notice to all interested persons shall sustain or overrule any objections to the accounting and petition for discharge, determine the amount of any compensation objected to and fix the plan of distribution. Upon receipt of evidence that the estate has been distributed according to the plan determined by the court and that claims of creditors have been paid or otherwise disposed of, the court shall enter an order discharging the personal representative and releasing the surety on any bond.

(e) The 30 day period in subsection (c) may be waived upon written consent of all interested persons.

(f) The personal representative may, before making distribution, retain from the funds in his hands a sufficient amount to pay the expenses accruing prior to discharge.

(g) Filing the final accounting may be waived upon written consent of all interested persons.

(h) When the interest of a minor heir or beneficiary does not exceed the amount authorized by Florida law to be received by his natural guardian, the natural guardian may waive the 30 days period and the accounting on behalf of such minor heir or beneficiary.

(i) In the absence of a conflict of interest, trustees, guardians, and personal representatives may give waivers on behalf of the beneficiaries of trusts, wards, and beneficiaries of estates.

Committee Notes:

1977 Revision: New. This rule is intended to fully comply with the provision of section 733.617, Florida Statutes (1975). Its disclosure provisions are in accordance with the philosophy of the Probate Code to keep all interested parties fully informed.

1980 Revision: Change in (a)(6) to require that an objection set forth the basis on which it is being made.

The status of the estate required under subparagraph (b) should include a reference to any pending action affecting the estate.

RULE 5.440. PROCEEDINGS FOR REMOVAL

(a) Proceedings for removal of- -the-personal representative may be commenced-by the court or any-interested person or joint personal representative. — Sueh-ne-tice shall be given to the personal representative as the court may-direct. — Upon hearing, the court may enter— such order as it deems piper-

ía) Proceedings for removal of a personal representative may be instituted by the court or by verified petition of any surety. joint personal representative or other interested person, alleging facts upon which the petition is based, with formal notice to all interested persons.

(b) A removed personal representative shall file an accurate, complete and final account of his administration and deliver to the remaining or successor personal representative all of the records concerning the estate and all of the property of the decedent within 30 days after his removal, unless for good cause shown the time is extended or reduced by the court.

(c) The removed personal representative shall deliver-to-the- remaining or-sueeesser personal-representative all of the property of the decedent and his estate and all records concerning-the- estate.

(4) (c) If a removed personal representative fails or refuses to file an accurate, complete and final account of his administration, or fails to turn over to his successor all of the property of the decedent and his estate and all records concerning the estate within the time provided by this rule, the court, on its own motion or upon the motion of any interested person shall order the removed personal representative to comply within ten days after service of a copy of the order. If he the removed personal representative fails or neglects to comply within the time required, the court may commit such removed personal representative until he complies. If sufficient cause is shown for the default, the court shall prescribe a reasonable time within which to comply and upon failure of the removed personal representative to comply with this or any subsequent like order, the court on its own motion or the motion of any interested person may commit him the removed personal representative until he does comply.

(o) Proceedings for-the commitment of sueh — defaulting—personal—representative may be instituted-by tho court or any interested person or joint-personal representá-

is (d) If proceedings for commitment are instituted by the court, the order directing compliance shall be sufficient of itself. If proceedings are instituted by a person other than the court, they shall be by verified petition, stating the facts upon which the proceedings are based. After notice to the removed personal representative and a hearing on the petition, if it deems the facts stated sufficient, the court shall issue its order and proceed in accordance with the provisions of this rule.

Committee Notes:

1975 Revision: To set forth the orderly procedure for accounting and transfer of assets in a removal of a personal representative.

The contempt procedure follows prevailing practice and assures due process. Contempt proceedings are a necessary power of the court to enforce its orders.

Statutory References:

As to:

Sub (a), FPC 733.506
Sub (b), FPC 733.508
Sub (c), FPC 733.509

Sub (d), (e), and (f), case law relating to “contempt” in general. See 6 Fla.Jur. Contempt 7 (1956) (Acts Constituting Contempt, In General).

OLD RULE 5.390 with minor change.

1977 Revision: Citation form change in committee note.

1980 Revision: Paragraph (a) amended to require formal notice to interested persons and to delete requirement that court give directions as to mode of notice. Surety may petition for removal in conformity with rule 5.660 (guardians). Requires factual allegations. Editorial changes.

Paragraph (b) combines and replaces former (b) and (c).

Paragraph (c) combines and replaces former (d) and (e). Editorial changes.

Former paragraph (f) relettered as (d).' RULE 5.520. PETITION FOR FAMILY-ADMINISTRATION FAMILY ADMINISTRATION: PETITION

(а) A petition for family administration shall contain, in addition to the statements required by Rule 5.200, the following the additional statements and supporting items required bv law to entitle petitioner to the entry of an order of family administration.

(1) In an intestate estate that the heirs at law of- the decedent consist solely of a surviving- spouse, lineal descendants, lineal ascendants or any of them,

(2) In a testate estate that the beneficiaries — under the — will consist of a surviving spouse or lineal descendants, lineal ascendants-or any of them, and that any specific or general devise-to others constitutes a minor part of the decedent’s estate,

(3) That the value of the gross estate, as of the date of death, is less -than $60,000:00 for federal estate tax purposes,

(4) That the entire estate consists of personal— property-my if real- property forms part of the estate; that administration under- -the Code has- proceeded to the point that all claims of creditors have been-pree-essed or barred,

(5) That the decedent’s w-illy-if one exists^ does-not- direct-administration as required by Chapter 733 of-the Code,

(б) A complete list of the assets of the gross estate for federal estate-tax purposes and their estimated value,

(7) -That the-estate is not indebted or, if indebted, the names, addresses-of creditor-s and-the amounts-due them, and that provision for payment of debts has-been made or the claims are bar-red,

(8) A proposed schedule of distribution-of all-assets to those entitled thereto as surviving spouse, heirs, beneficiaries — or creditors; aad-fcheir respective names, ages, residences and-relationships to the decedent,

(b)The-term- — gross- estate” as used in this rule means gross estate as defined for federal estate tax purposes and consists of both probate and non-probate assets of a decedent;

(e) (b) The petition shall be signed and verified by all beneficiaries and the surviving spouse, if any. The petition may be signed on behalf of a minor or an incompetent by his legal guardian or, if none, by his natural guardian.

Committee Notes:

1975 Revision: Implements FPC 735.101 and FPC 735.103. Establishes the requirements of a petition for family administration.

1977 Revision: Unchanged.

1980 Revision: Implements FPC 735.101, 735.103, and 735.107 and deletes repetition of specific language included in the statutes.

RULE 5.540. DEFINITIONS

Unless the context requires otherwise, when used in these rules:

(a) “Clerk” means the clerk or deputy clerk of the court.

(b) “Court” means the circuit court.

(c) “Estate” includes the property of a ward subject to administration.

(d) “FGL” means the Florida Guardianship Law, as amended from time to time.

(e) A “foreign guardian” is one appointed in another state or country.

(f) A “guardian” is one to whom the law has entrusted the custody and control of the person or property, or both, of an incompetent. “Guardian” may mean curator, conservator or committee if appointed in another state.

(g) A “Guardian ad litem” is one appointed by a court in which particular litigation is pending to represent a ward in that litigation.

(h) An “incompetent” is a person who because of minority, senility, lunacy, insanity, imbecility, idiocy, drunkenness, excessive use of drugs or other physical or mental incapacity, is incapable of either managing his property or caring for himself, or both.

(i) A “minor” is a person under 18 years of age whose disabilities have not been removed by marriage or otherwise.

(j) “Property” means realty, personalty and choses in action, or any interest in them, legal or equitable, and also claims or rights of action arising in tort.

(k) A “ward” is an incompetent for whom a guardian has been appointed.

(l) “Next-of-kin” means those persons who would be heirs at law of the ward or alleged incompetent if such person were deceased and includes the lineal descendants of such ward or alleged incompetent person.

Committee Notes:

1975 Revision: These definitions are intended to simplify application of these rules. See also definitions in FGL 744.102.

1977 Revision: Editorial change in committee note.

1980 Revision: Implements 1979 amendment to FGL 744.102 subsection (16). See also definitions in FGL 744.1025.

RULE 5.550. PETITION FOR ADJUDICATION OF INCOMPETENCY

(a) Every petition for adjudication for of incompetency shall be verified by the petitioner or his attorney and shall allege, to the best of petitioner’s knowledge and belief:

(1) The name, date of-birth age, if known or approximate age, if not known, and address of the alleged incompetent and the nature of his disability;

(2) The address of the petitioner; and

(3) The names, relationships and addresses of the spouse and next-of-kin of the incompetent, if known.

(b) When a petition is filed, the court shall set a date for hearing.

Committee Notes:

1975 Revision: Implements FGL 744.331 and is substantially the same as subsection (3) and the first sentence in subsection (4). 1977 Revision: No change in rule. Change in committee note to conform to statutory renumbering.

1980 Revision: Implements 1979 amendments to FGL 744.331.

RULE 5.560. PETITION FOR APPOINTMENT OF GUARDIAN

(а) Every petition for the appointment of a guardian shall be verified by the petitioner or his attorney and shall allege, to the best of petitioner’s knowledge and belief:

(1) Facts sufficient to show that venue is proper;

(2) Petitioner’s residence and post office address;

(3) The name, date of — birth age, if known, residence and post office address of the alleged incompetent and the nature of his incapacity;

(4) The date and court of adjudication;

(5) The type of guardianship desired;

(б) The approximate value and description of his property;

(7) The names and addresses of the persons most-closely related-to-the incompotont next-of-kin of the incompetent, if known to the petitioner:

(8) That the person sought to be appointed is qualified to act as guardian in the state of Florida; and

(9)The preference, name, residence, post office address and the preference, if any, te which the person sought to be appointed is entitled pursuant to the-provisions of FGL 744.302 or-744.312, and of the person sought to be appointed.

(10) In the case of information required in the petition which is not known to the petitioner that reasonable search -has been made and-that the information cannot be ascertained without delay that -would adversely affect the incompetent or his prop ■

Committee Notes:

1975 Revision: Substantially the same as FGL 744.334 expanded to include provisions of FGL 744.302 and FGL 744.312 by reference.

1977 Revision: No change in rule. Change in committee note to conform to statutory renumbering.

1980 Revision: Implements 1979 amendment to FGL 744.334.

RULE 5.570. NOTICE: ADJUDICATION OF INCOMPETENCY AND APPOINTMENT OF GUARDIAN

(a) notice of Petition for Adjudication of Incompetency

A petition for adjudication of incompetency shall be served upon the alleged incompetent in the manner as provided by Fla.R.Civ.P. 1.070. A notice of the hearing on the petition shall accompany the petition. A copy of the petition and notice of the hearing thereon shall be served on one or more members of his family, if any other than petitioner are known to be residing in the county, and to such persons as the court may direct.

(b) Notice of Petition for Appointment of Guardian

(1) A petition for appointment of guardian may be heard by the court without notice if filed before and heard upon the conclusion of the hearing in which the person for whom a guardian is sought to be appointed is adjudged incompetent.

(2) If the petition is filed after the conclusion of the hearing adjudicating the person incompetent; not heard unon the date on which the person for whom a guardian is sought to be appointed is adjudged incompetent. then a copy of the petition and notice of the hearing thereon shall be served on the incompetent and ono or more of — his family or- relatives if any can be found- within the-county- such other persons as the court may direct.

(3) If the petition alleges that the incapacity is minority and the petitioner is not a parent and one or both of the parents of the minor are living, a copy of the petition and notice of the hearing thereon shall be given to them. When the person sought to be appointed is a parent, no notice is necessary unless the other parent is living and refuses to consent to the appointment.

Committee Notes:

1975 Revision: Implements FGL 744.-331(4) and FGL 744.337 with editorial changes.

1977 Revision: Editorial change in rule. Change in committee note to conform to statutory renumbering.

1980 Revision: Implements 1979 amendment to FGL 744.337(1).

RULE 5.630. PETITION AND NOTICE FOR APPROVAL OF ACTS

(a) When authorization or confirmation of any act of the guardian is required, application shall be made by verified petition of the guardian stating the facts showing:

(1) The expediency or necessity for the action;

(2) A description of any property involved; and

(3) The price and terms of a sale, mortgage or other contract.

(b) No notice of a petition to authorize a sale of perishable personal property or of property rapidly deteriorating shall be required. Notice of a petition to perform any other act under FGL 744.441 shall be given to the guardian of the person and the nex-t of kin, if-any to those interested persons who have filed a request for notices and copies of pleadings.

(c) After the hearing upon the petition, if the act is authorized or confirmed, the order shall describe the property, if a sale or mortgage is authorized, and:

(1) If the property is authorized for sale at private sale, the order shall fix the price and the terms of the sale, or

(2) If the sale is to be public, the order shall state that the sale shall be made to the highest bidder and the court reserves the right to reject all bids.

(d) An order for any other act permitted under FGL 744.441 shall describe the permitted act and authorize the guardian to perform it or confirm its performance.

Committee Notes:

1975 Revision: Substantially the same as FGL 744.503, 744.447, and 744.451 with editorial changes.

1977' Revision: Change in statutory reference in rule and in committee note to conform to statutory renumbering.

1980 Revision: Implements 1979 amendment to FGL 744.447(2).

RULE 5.660. PROCEEDINGS FOR REMOVAL OF GUARDIAN

(a) Proceedings for removal of a guardian may be instituted by the court or by verified petition of any other guardian, any surety, the next of kin, or any other interested persom — If proceedings are- instituted by-a-person other than-the court, they shall be by verified petition stating alleging the facts upon which the petition is based, with formal notice to all guardians and to other interested persons, including next-of-kin, if any. Notice-shall be given to the guardiam On the hearing the court may enter -the order.-that ¡g proper under the pleadings and the evidence.

(b) A removed guardian shall file a true, complete and final accounting of his guardianship within 30 days after his removal, unless for good cause shown the time is extended by the court.

(c) The successor guardian shall demand of the removed guardian, or his heirs, personal representative or surety all the property of the ward and all records with all money due the ward by him. The removed guardian, or his heirs, personal representative or surety, shall turn over the items to his duly qualified successor.

(d) If a removed guardian fails to file a true, complete and final accounting of his guardianship, to turn over to his successor all property of his ward and all records that are in his control and that concern the property of the ward or the guardianship, or to pay over to the successor guardian all money due the ward by him, the court shall commit the removed guardian until he complies with the requirements indicated. If cause is shown for the default, the court shall set a reasonable time within which to comply, and on failure to comply with this or any subsequent order, the removed guardian may be committed until he does comply. Proceedings for the commitment of a defaulting guardian may be instituted by the court, by any interested person or by a successor guardian.

(e)If proceedings for commitment are instituted by the court, the order directing compliance shall be sufficient of itself. If proceedings are instituted by a person other than the court, they shall be by verified petition, stating the facts upon which the proceedings are based. After notice to the removed guardian and a hearing on the petition, if it deems the facts stated sufficient, the court shall issue its order and proceed in accordance with the provisions of this rule.

Committee Notes:

1975 Revision: Substantially the same as FGL 744.477, FGL 744.511, FGL 744.514, and FGL 744.517, with editorial changes and additional provisions to the effect that if any proceedings are instituted by a person other than the court they shall be by verified petition stating the facts upon which the proceedings are based.

1977 Revision: No change in rule. Change in committee note to conform to statutory renumbering.

1980 Revision: Paragraph (a) amended to specifically authorize any guardian or next-of-kin to file the petition and to require formal notice in conformity with rule 5.630(b).

RULE 5.690. ANNUAL ACCOUNTINGS

(a) The annual accounting shall be filed on or before April 1 of each year or 90 days after termination of the ward’s fiscal year. In his accounting, a guardian of the property shall render a full and correct accounting of the receipts and disbursements of all his ward’s property of which he has control and shall include a statement of the ward’s assets.

(b) Substantiating papers shall not be filed with accountings, but pertinent substantiating papers and records shall be available at the trial of objections to accountings, and all substantiating papers and records shall be preserved by the guardian for 3 years after his discharge.

(c) If a guardian fails to file his annual accounting, any person interested may file a written demand for service of a copy of the accounting, containing the post office address of the person filing it. If any demand is on file at the time the accounting is filed, the guardian shall serve a copy of the accounting upon the person who filed the demand and shall file proof of service of it.

(d) It is not necessary to file an annual accounting when a ward who has become sui juris, or a personal representative of a deceased ward, waives the filing thereof in writing. Notwithstanding a waiver, the court may require the filing of the accounting.

(e) Unless otherwise waived-by the court, a guardian- of the property shall appear before the-eourt at the time the-guardian of the property files his-annual accounting or at such time as the court shall-determine in order that-the court may inquire as to any matter-relating to the financial well-being of the ward.

(e) The court mav require every guardian to appear before the court at the time the guardian files his annual return or at such other times as the court determines in order for the court to inquire as to any matter relating to the physical and financial well-being of the ward.

Committee Notes:

1975 Revision: Substantially the same as PGL 744.427(1), (2), and (4) and FGL 744.-437 with editorial changes and providing for the waiving, by a ward who has become sui juris or by the personal representative of a deceased ward, of the filing of an annual accounting. The rule requires the guardian of the property of a ward to appear before the court at the time he files his annual accounting or at such time as the court shall determine in order that the court may inquire as to any matter relating to the physical and financial well-being of the ward. This appears to be in conflict with FGL 744.437 which refers to “every guardian” but in the same sentence it refers to “at the time the guardian files his annual return” ■ and only the guardian of the property is required to file an annual accounting.

1977 Revision: No change in rule. Change in committee note to conform to statutory renumbering.

1980 Revision: Subparagraph (e) amended to avoid conflict with statutory changes in section 744.437, Florida Statutes (1979).

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


author: PER CURIAM. ALDERMAN, Justice,

text:
    Janet KILLIAN, Petitioner, v. Robert P. LAWSON, also known as Robert P. Lutman, Respondent.
    No. 55406.
    Supreme Court of Florida.
    Sept. 11, 1980.

      Paula S. Gold of Baskin & Sears, Boca Raton, for petitioner.
    Shepard Lesser of Lesser, Lesser & Daniels, West Palm Beach, for respondent.
   PER CURIAM.

Petitioner, a judgment creditor of the respondent appealed an adverse trial court ruling that she could not garnish the respondent’s wages. The Fourth District Court of Appeal affirmed and certified the following question:

Whether a divorced man, who pays $1,000 a month alimony, which constitutes the sole support of his ex-wife, is entitled to the exemption of wages from garnishment under section 222.11, Florida Statutes (1975).

Pursuant to article V, section 3(b)(3), Florida Constitution (1972), we have accepted jurisdiction.

When the petitioner instituted garnishment proceedings against his wages, respondent claimed a statutory exemption as head of a family under section 222.11, Florida Statutes. Respondent, a divorced man without minor children, is under a legal duty to support his ex-wife by paying her one thousand dollars ($1,000) per month alimony. This alimony is the former wife’s only income.

Killian contends that Lawson is not a head of a family and cites numerous cases defining “head of a household” for purposes of the homestead forced sale exemption contained in article X, section 4, of the Florida Constitution. See Anderson v. Anderson, 44 So.2d 652 (Fla.1950); In re Estate of Deem, 297 So.2d 611 (Fla. 4th DCA 1974); In re Estate of Van Meter, 214 So.2d 639 (Pla. 2d DCA 1968). Florida’s homestead exemption, however, has been characterized as a legal chameleon. Crosby and Miller, Our Legal Chameleon, The Florida Homestead Exemption, 2 U.Fla.L.Rev. 12 (1949). “Head of a household” may mean one thing for one purpose and something else for another purpose. In determining the meaning of family headship, the courts of this state have adopted two alternatives by which a person claiming exemption must show either: (1) a legal duty to maintain arising out of the family relationship at law; and/or (2) continuing communal living by at least two persons with one person recognized as being in charge. Solomon v. Davis, 100 So.2d 177 (Fla.1958); Beck v. Wylie, 60 So.2d 190 (Fla.1952); Heard v. Mathis, 344 So.2d 651 (Fla. 1st DCA 1977); Brown v. Hutch, 156 So.2d 683 (Fla. 2d DCA 1963). Respondent’s legal duty to support his ex-wife through alimony payments falls within the first alternative set out above.

A husband has a common law duty to support his wife. Contractors Contract NOY 5948 v. Morris, 154 Fla. 497, 18 So.2d 247 (1944). When alimony or support money is awarded, this duty to support survives dissolution of marriage because public policy requires the doing of that which in equity and good conscience should be done. Brackin v. Brackin, 182 So.2d 1 (Fla.1966). As this Court has noted, the purpose of alimony is to prevent a dependent party from becoming a public charge or an object of charity. Aldrich v. Aldrich, 163 So.2d 276 (Fla.1964). Exemption statutes serve the same purpose and should be liberally construed in favor of a debtor so that he and his family will not become public charges. Patten Package Co. v. Houser, 102 Fla. 603, 136 So. 353 (1931); Elvine v. Public Finance Co., 196 So.2d 25 (Fla. 3d DCA 1967).

A wage earner need not reside in the same house with his wife and/or children to remain the head of a family. Instead, it is the obligation to support, and dependency on that obligation, which should control. See McGookey v. Winter, 381 Ill. 516, 46 N.E.2d 84 (1943); Lena v. Clinkenbeard, 172 Okl. 6, 44 P.2d 2 (1935). In the instant case, respondent’s alimony payments constitute his former wife’s sole means of support. Even though, divorced, respondent must, by court order, continue to support his ex-wife. This duty arose out of a family relationship and makes him the financial head of a household. We agree with the district court and hold that respondent is entitled to the exemption provided by section 222.11.

Affirmed.

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

ALDERMAN, J., dissents with an opinion, with which BOYD, J., concurs.

ALDERMAN, Justice,

dissenting.

I dissent for the reason so succinctly stated by Judge Moore in his dissent, wherein he said:

[TJhere can be no head of a family when there is no family. If Section 222.11, Florida Statutes (1977), is to be expanded to provide an exemption for those divorced husbands who are required to support their former wives then I believe this to be the prerogative of the Legislature.

362 So.2d at 1008.

Accordingly, I would quash the decision of the district court.

BOYD, J., concurs.

      . Killian v. Lawson, 362 So.2d 1007 (Fla. 4th DCA 1978).

      . § 222.11 provides as follows:
      222.11 Exemption of wages from garnishment.-No writ of attachment or garnishment or other process shall issue from any of the courts of this state to attach or delay the payment of any money or other thing due to any person who is the head of a family residing in this state, when the money or other thing is due for the personal labor or services of such person.
      We note that the Consumer Credit Protection Act provides that only a portion of a wage earner’s disposable earnings is subject to garnishment. 15 U.S.C. § 1673. It should also be noted that the federal statute does not prohibit additional protection from garnishment under state law. 15 U.S.C. § 1677.


text:
    Robert Leslie HETLAND, Petitioner, v. STATE of Florida, Respondent.
    No. 56245.
    Supreme Court of Florida.
    Sept. 11, 1980.
    Robert E. Jagger, Public Defender, and Ellen Irene Hoffenberg, Asst. Public Defender, Clearwater, for petitioner.
    Jim Smith, Atty. Gen., and William I. Munsey, Jr. and Peggy A. Quince, Asst. Attys. Gen., Tampa, for respondent.
   PER CURIAM.

The question in this case is whether a valid stop and frisk may be based on information obtained from an anonymous telephone caller. The District Court of Appeal, Second District, in the decision below, 366 So.2d 831, answered this question in the affirmative provided the anonymous tip bore sufficient indicia of reliability. In reaching its decision the court expressly receded from the rule announced in its prior decision in State v. Hendry, 309 So.2d 61 (Fla. 2d DCA 1975). The District Court of Appeal, Fourth District, however, relied on State v. Hendry in reaching a negative response to this question. St. John v. State, 363 So.2d 862 (Fla. 4th DCA 1978). But cf. Byrd v. State, 380 So.2d 457 (Fla. 1st DCA 1980); Isham v. State, 369 So.2d 103 (Fla. 4th DCA 1979). Conflict jurisdiction therefore vests in this Court pursuant to article V, section 3(b)(3), Florida Constitution (1972).

We agree with the District Court of Appeal, Second District, that an inflexible rule based on the anonymous nature of the tip would not be appropriate in all instances without regard to the other circumstances involved. A valid stop and frisk may be based on information obtained from an anonymous tipster if that information appears sufficiently reliable because of the surrounding circumstances or the nature of the information given in the tip itself.

Since it would serve no useful purpose to expand upon the exhaustive and well reasoned analysis of the district court below, we hereby adopt its opinion as our own. Accordingly, the writ of certiorari is granted and the decision of the District Court of Appeal, Second District, is approved. We disapprove of the decision of the District Court of Appeal, Fourth District, in St. John v. State to the extent it is inconsistent with our decision today.

It is so ordered.

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


text:
    Warren WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 56768.
    Supreme Court of Florida.
    Sept. 11, 1980.
    Richard L. Jorandby, Public Defender, and Michael Salnick, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

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

It is so ordered.

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


text:
    STATE of Florida, Appellant, v. Cindy Lou HAGEDORN, Appellee.
    No. 57215.
    Supreme Court of Florida.
    Sept. 11, 1980.
    Michael J. Satz, State’s Atty., and Patti Englander, Asst. State’s Atty., Fort Laud-erdale, for appellant.
    Channing Brackey, Asst. Public Defender, Fort Lauderdale, for appellee.
   PER CURIAM.

Reversed. This case is remanded for further proceedings consistent with this Court’s opinion in State v. Cheatham, 376 So.2d 1167 (Fla.1979).

It is so ordered.

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


text:
    Alton ADERHOLD, Appellant, v. STATE of Florida, Appellee.
    No. 57646.
    Supreme Court of Florida.
    Sept. 11, 1980.
    Maurice Graham of Brimmell & Graham, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This appeal was transferred to us by the District Court of Appeal, Fourth District, 369 So.2d 982 (Fla. 4th DCA 1979), because the trial court upheld the constitutionality of section 775.084, Florida Statutes (1977). The trial court’s ruling upholding the constitutionality of section 775.084 is consistent with our holding in Eutsey v. State, 383 So.2d 219 (Fla.1980). We hold that this constitutional issue is now legally frivolous, and we therefore transfer this case back to the District Court of Appeal, Fourth District, for consideration of the remaining points on appeal.

It is so ordered.

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


text:
    STATE of Florida, Appellant, v. Tammy HINSON, Appellee.
    No. 57849.
    Supreme Court of Florida.
    Sept. 11, 1980.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Daytona Beach, for appellant.
    James B. Gibson, Public Defender, and Terrence M. White, Asst. Public Defender, Daytona Beach, for appellee.
   PER CURIAM.

Reversed. This case is remanded for further proceedings consistent with this Court’s recent decision in State v. Elder, 382 So.2d 687 (Fla.1980).

It is so ordered.

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


text:
    David GREENE, Appellant, v. STATE of Florida, Appellee.
    No. 58536.
    Supreme Court of Florida.
    Sept. 11, 1980.
    Richard L. Jorandby, Public Defender, and Robert C. Fallon, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

The ruling of the trial court, that section 39.04(2)(e)4, Florida Statutes (Supp.1978), is constitutional, is consistent with the recent decision of this Court in State v. Cain, 381 So.2d 1361 (Fla.1980). Therefore, we find this appeal now to be legally frivolous and transfer this case to the District Court of Appeal, Fifth District, for resolution of the remaining issue.

It is so ordered.

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


text:
    Freddie Lee ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 56357.
    Supreme Court of Florida.
    Sept. 11, 1980.
    Alan H. Schreiber, Public Defender, and Channing E. Brackey, Asst. Public Defender, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

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

It is so ordered.

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


author: COBB, Judge.

text:
    Floyd DANFORD, Appellant/Cross-Appellee, v. CITY OF ROCKLEDGE et al., Appellees/Cross-Appellants.
    No. 78-1350/T4-140.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 1980.
    See also, Fla.App., 387 So.2d 968.
    Eugene Collier, Cocoa, for appellant/cross-appellee.
    Norman F. Burke of Van Den Berg, Gay & Burke, P. A., Orlando, for appel-lees/cross-appellants.
   COBB, Judge.

Danford was employed as a police officer by the City of Rockledge. Danford filed a complaint against the City of Rockledge, Hipp (city manager), Rainwater and Chas-tain (city councilmen), Kallis (chief of police), and Ellis, Hurst, Pennington, Williams, Robinson and Massey (police officers). The complaint sought damages for wrongful discharge, defamation, tortious interference with a contract of employment, and conspiracy to defame.

All defendants moved to dismiss the complaint for failure to state a cause of action and all defendants also moved for summary judgment. The trial court granted the motion to dismiss with regard to the city manager and the two city councilmen, without leave to amend. The trial court granted the motion for summary judgment with regard to the City of Rockledge and the chief of police, and denied the motion for summary judgment with regard to the six police officers. No final summary judgment was entered. Danford appealed those portions of the order granting the motion to dismiss and granting summary judgment. The city manager and the two city councilmen cross-appealed the denial of the motion for summary judgment with regard to themselves.

The six police officers subsequently filed a second motion for summary judgment. The trial court granted that motion. No final summary judgment was entered. Danford then appealed that order, in addition.

First, we shall dispose of those portions of the appeals dealing with the two orders granting summary judgments. A review of both of the orders shows that neither of the orders contains either the traditional words of finality nor other words of similar import. Without such language, the orders are not final judgments subject to appellate review. Guth v. Howard, 362 So.2d 725 (Fla. 2d DCA 1978); Armstrong Contracting and Supply Corp. v. Aerospace Industries, Inc., 254 So.2d 242 (Fla. 4th DCA 1971); Catchings v. Florida-McCracken Concrete Pipe Co., 101 Fla. 792, 135 So. 561 (1931).

Second, we shall dispose of the cross-appeal. The cross-appeal seeks review of the denial of a motion for summary judgment. Such an order is not appealable. Mooney v. Integon Life Ins. Co., 368 So.2d 957 (Fla. 3d DCA 1979).

Third, we shall consider the merits of the order dismissing the case without leave to amend with regard to the city manager and the two city councilmen. In his complaint, Danford basically alleged that these three city officials made certain unfavorable statements to the news media about him. In Florida, executive officials have an absolute privilege for actions taken within the scope of their offices. Our Florida Supreme Court had adopted a broad definition of the phrase “scope of office.” McNayr v. Kelly, 184 So.2d 428 (Fla.1966); Hauser v. Urchisin, 231 So.2d 6 (Fla.1970). We think that the statements of these city officials made under circumstances- alleged in the complaint were made by these individuals acting within the scope of their offices. Therefore, they were absolutely privileged and the complaint was properly dismissed for failure to state a cause of action with regard to these city officials.

Accordingly, we affirm the order dismissing the complaint with regard to Hipp, Chastain, and Rainwater; we sua sponte dismiss the cross-appeal; and we remand this case to the trial court for thirty days so that proper appealable final summary judgments may be rendered and supplemented into the record on appeal. If such action is not taken within that time, then the appeal of the orders granting the motions for summary judgment will be dismissed.

DAUKSCH, C. J., and UPCHURCH, J., concur.

      . McNayr has been followed in Roberts v. Lenfestey, 264 So.2d 449 (Fla. 2d DCA 1972); Johnson v. Carhart, 353 So.2d 874 (Fla. 3d DCA 1977); Densmore v. City of Boca Raton, 368 So.2d 945 (Fla. 4th DCA 1979).


text:
    Floyd DANFORD, Appellant/Cross-Appellee, v. CITY OF ROCKLEDGE et al., Appellees/Cross-Appellants.
    No. 78-1350/T4-140.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 1980.

      Eugene Collier, Cocoa, for appellant/cross-appellee.
    Norman F. Burke of Van Den Berg, Gay & Burke, P. A., Orlando, for appel-lees/cross-appellants.
   COBB, Judge.

Danford was employed as a police officer by the City of Rockledge. He was dismissed from his employment on two days’ notice. In order to preserve any administrative remedies he might have, Danford filed a petition for declaratory and injunc-tive relief against the City of Rockledge and its chief of police, Richard Kallis. The trial court granted temporary injunctive relief.

Soon thereafter, Danford submitted his resignation with the request that he received certain benefits that an employee is entitled to upon resignation. The attorneys for the parties then entered into a written stipulation that all matters in controversy had been compromised and settled. Dan-ford filed a notice of voluntary dismissal with prejudice. The trial court dissolved the temporary injunction.

Danford subsequently filed a complaint against the City of Rockledge, Richard Kal-lis, and others seeking damages for wrongful discharge, defamation, tortious interference with a contract of employment, and conspiracy to defame.

Without filing an answer, the City of Rockledge and Richard Kallis moved for a summary judgment. Since the trial court initially granted the motion without entering a final summary judgment, we previously withheld ruling on this issue. Danford v. City of Rockledge, No. 78-1350/T4-140, 387 So.2d 967 (Fla. 5th DCA Feb. 27, 1980) [1980 FLW 400]. These parties have now obtained the entry of a final summary judgment so that we now have jurisdiction. Williams v. State, 324 So.2d 74 (Fla. 1975); Burton v. State, 382 So.2d 834 (Fla. 4th DCA 1980).

In support of their motion for summary judgment, the City of Rockledge and Richard Kallis filed the deposition of Everett Van Gaasbeck, who was the attorney for Danford in the prior suit, and certain pleadings, orders, and correspondence from the prior suit. Danford filed an affidavit in opposition to the motion for summary judgment. By this appeal, Danford contends that the trial court erred in entering the final summary judgment in favor of the City of Rockledge and Richard Kallis because it was procedurally premature and because there was a genuine issue of material fact that had not been determined.

Procedurally, we agree with the appellant that an affirmative defense of res judicata or release should not be raised by a motion for summary judgment prior to raising such defense in an answer. B.B.S. v. R.C.B., 252 So.2d 837 (Fla. 2d DCA 1971); Couchman v. Goodbody & Co., 231 So.2d 842 (Fla. 4th DCA 1970); Turf Express, Inc. v. Palmer, 209 So.2d 461 (Fla. 3d DCA 1968). However, this is a procedural matter that can be waived. It must be timely raised before the trial court in order to give the trial court the opportunity to correct itself. It may not be raised for the first time on appeal. There is nothing in the record before us that shows that Danford ever objected to this procedural irregularity in the trial court. Accordingly, the appellant has waived this procedural error.

Turning to the merits, we have reviewed the documents, correspondence, Van Gaasbeck’s deposition, and Danford’s affidavit, and we agree with the appellant that there are genuine issues of material fact precluding summary judgment. There is apparently a dispute as to: (1) what rights were given up by the compromise and settlement of the first suit, and (2) what was the extent of Van Gaasbeck’s authority as to any compromise made on behalf of Dan-ford. See Nehleber v. Anzalone, 345 So.2d 822 (Fla. 4th DCA 1977). Therefore, we reverse this final summary judgment.

REVERSED.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.

      . Federal practice is different. Diaz-Buxo v. Trias Monge, 593 F.2d 153 (1st Cir. 1979); Lambert v. Conrad, 536 F.2d 1183 (7th Cir. 1976); Miller v. Shell Oil Co., 345 F.2d 891 (10th Cir. 1965).


author: DAUKSCH, Chief Judge.

text:
    Willie James BARNES, Jr., #012959, Appellant, v. STATE of Florida, Appellee.
    No. 79-260.
    District Court of Appeal of Florida, Fifth District.
    March 12, 1980.
    Willie James Barnes, Jr., in pro. per.
    No appearance for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from an order denying post conviction relief prayed for under Rule 3.850, Florida Rules of Criminal Procedure. The petition filed below is legally insufficient on its face and therefore the trial court properly denied it, even if for the wrong reason.

Because among his various allegations the petitioner alleged in his petition below that he was denied an appeal by state action, he may have properly sought another remedy by following the procedures allowed under Baggett v. Wainwright, 229 So.2d 239 (Fla.1969), and Hollingshead v. Wainwright, 194 So.2d 577 (Fla.1967), cert. denied, 391 U.S. 968, 88 S.Ct. 2040, 20 L.Ed.2d 882.

In order to determine whether this appellant was denied his right to appeal, we appoint Honorable Richard B. Keating, Circuit Judge of the Ninth Judicial Circuit, as Commissioner of this court to hold a hearing for the presentation of evidence in that regard. At the conclusion of the hearing, the Commissioner is requested to make his findings of fact and file his report with this court. Jurisdiction of this matter is relinquished and this cause is remanded for a period of thirty days in order that the foregoing may be accomplished.

COBB, J., concurs.

CROSS, J., concurs only in conclusion.

      . “Adjudged that the said Motion for Post Conviction Relief is hereby denied, this Court being without jurisdiction to consider such a motion." There is nothing in the record before us to show the trial court lacked jurisdiction.


text:
    Willie James BARNES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 79-260.
    District Court of Appeal of Florida, Fifth District.
    Aug. 13, 1980.
    Willie James Barnes, Jr., in pro. per.
    No appearance, for appellee.
   PER CURIAM.

By our opinion in this case dated March 12, 1980, we relinquished jurisdiction for a Commissioner of this court to take evidence and issue findings of fact. We have received and approved the Commissioner’s Report and based upon that report, it is determined the appellant is not entitled to belated appellate review.

IT IS SO ORDERED.

DAUKSCH, C. J., and COBB and FRANK D. UPCHURCH, Jr., JJ., concur.


author: DOWNEY, Chief Judge.

text:
    Joseph DALEY, Roque Cavazos and Jeromy Angsten, Appellants, v. STATE of Florida, Appellee.
    Nos. 78-1568, 78-1653 and 78-1654.
    District Court of Appeal of Florida, Fourth District.
    May 21, 1980.

      Thomas G. Murray and William M. Moran of Moran & Gold, P. A., Miami, for appellant, Daley.
    Robert A. Huth, Jr., Fort Lauderdale, for appellant, Cavazos.
    James W. Reilley and Jordan Bell of Reil-ley, Bell & Weinberg, Chicago, Ill., for appellant, Angsten.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann and Charles W. Musgrove, Asst. Attys. Gen., West Palm Beach, for appellee.
   DOWNEY, Chief Judge.

In these consolidated appeals the three defendants seek review of an order denying their motions to dismiss and suppress. After denial of the motions, appellants pleaded nolo contendere; final judgment was entered; and these appeals ensued.

The facts as reflected in the record indicate that Palm Beach County Deputy Sheriff Brooks contacted Broward County Deputy Sheriff Voudy and advised Voudy that Brooks had received a tip (the source of which was not disclosed) that a described boat, docked in a residential area of Pompano Beach, was loaded with marijuana.

Thereafter, Voudy, accompanied by seven other law enforcement officers (Pompano Beach police and United States Customs Agents), went looking for the boat. They eventually found a boat which resembled the boat described by Brooks docked at the rear of a residence. When they arrived at the scene, the officers observed no activity. Nevertheless, several of the officers went to the front door of the residence to advise the occupants that they intended to board the boat docked at the rear of the property. Deputy Voudy went immediately into the back yard of the property. Three men exited the rear door of the house. Voudy approached them, showed them his badge, and “advised them to remain where they were.” Voudy testified that the men were not formally placed under arrest; they were simply “detained” there while Customs officers were boarding the boat. Voudy further testified that: the detainees were not formally placed under arrest; “They would have been placed under arrest. It’s just at that point we didn’t verbally tell them that.” In answer to the question, “They were under arrest?”, Voudy answered, “Oh, yeah.”

The Customs officers who boarded the boat found no substantial quantity of contraband; they found only some marijuana residue. While the search of the boat was underway Voudy asked the three detainees if they owned or resided in the house; they answered that they did not. They also acknowledged they did not know the name of the owner of the house. Voudy did not ask them by what authority they were on the property.

Deputy Voudy testified that he suspected a burglary may have been committed so the officers decided to “check the residence to make sure it was secure or if there was anybody else still in the house.” Voudy opened the door from which the detainees had exited and observed a pick-up truck inside the garage with numerous bales of suspected marijuana in the truck and some on the floor. Thereupon, Voudy arrested the detainees for burglary and possession of marijuana. Prior to opening the door to the house Voudy saw nothing unusual occur about the premises. The three men did not exit the house in an unusual fashion; Vou-dy saw no evidence of any breaking and entering, nor had he any report of such, even from the next door neighbors, who were questioned by the officers in the midst of an afternoon backyard barbeque. Upon inquiry by defense counsel Voudy explained the failure to procure a search warrant by saying, “There wasn’t enough for a search warrant for the residence as far as I was concerned.” He did not feel he had sufficient probable cause for obtaining a search warrant. He also stated he had no facts to indicate the detainees had any connection with the boat.

The appellants (the three detainees) were initially charged with possession of cannabis in excess of 100 pounds. They filed a motion seeking suppression of all tangible evidence, statements, and other evidentiary items. At the hearing on said motion the parties stipulated that: the search in question was conducted without a warrant; no consent was given; and when the officers boarded the boat, there was no evidence that the vessel had recently come from a foreign port. At the conclusion of the hearing the trial court announced its findings, which, paraphrased in pertinent part, were:

1) The police illegally entered the property and the rear yard area in question.

2) The police illegally entered the boat.

3) The police interrogation of the defendants was proper.

4) The police entered the house under exigent circumstances.

5) The defendants had no standing to challenge the search of the boat or home.

Regarding the exigent circumstances the trial judge said:

The police had a duty under exigent circumstances to immediately go into that home to find out if anything had occurred in the breaking and entering, including whether a rape or a murder had occurred. They had a duty not to go down and wait for a judge for probable cause to go into that home. They would have been derelict not to check that home. Exigent circumstances. The search and seizure of the home was all right by reason of these exigent circumstances.

Although the three appellants frame the points on appeal somewhat differently, the issues raised are these:

1. Did the defendants have standing to challenge the search of the boat and residence and seizure of contraband?
2. Were the defendants’ rights violated by failure to advise them of their constitutional rights?
3. Did exigent circumstances exist so as to permit the police to enter the residence without a search warrant?

The threshold question to be resolved is appellants’ standing to challenge the search of the boat and house on Fourth and Fourteenth Amendment grounds. In that regard we note that at the close of his statement of findings setting forth his reasons for denying the motion to suppress the marijuana found in the house the trial judge stated that, “The motion to suppress any tangible evidence found in the home is respectfully denied. One reason and the only reason, no standing to sue (sic). And the home, two reasons, no standing to sue and exigent circumstances.” Thus, it appears the basis for the trial judge’s denial of the motion to suppress was his finding that appellants had no standing to contest upon Fourth and Fourteenth Amendment grounds the search for and seizure of the tangible evidence in the house.

In Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), the Supreme Court held that when the government charges a defendant with possession of contraband and the defendant moves to suppress that' contraband, the government may not contend the defendant does not have standing to assert a Fourth Amendment violation. The Court recognized that ordinarily one who seeks to challenge the legality of a search in order to suppress evidence must allege, and prove if the allegation is disputed, that his privacy was invaded. However, the Court noted that where the charge was possession of contraband a special problem is created. The Court said:

Since narcotics charges like those in the present indictment may be established through proof solely of possession of narcotics, a defendant seeking to comply with what has been the conventional standing requirement has been forced to allege facts the proof of which would tend, if indeed not be sufficient, to convict him. At the least, such a defendant has been placed in the criminally tendentious position of explaining his possession of the premises. 362 U.S. at 261-262, 80 S.Ct. at 731.

Thus, the Court concluded that “The possession on the basis of which the petitioner is to be and was convicted suffices to give him standing under any fair and rational conception of the requirements of Rule 41(e).”

Some years later in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Supreme Court revisited the Jones standing issue, noting:

The dilemma faced by defendant . is most extreme in prosecutions for pos-sessory crimes, for then the testimony required for standing itself proves an element of the offense. We eliminated that Hobson’s choice in Jones v. United States, supra, by relaxing the standing requirements. This Court has never considered squarely the question whether defendants charged with non-possessory crimes . are entitled to be relieved of their dilemma entirely. 390 U.S. at 391, 88 S.Ct. at 975.

The Second District Court of Appeal in Curry v. State, 355 So.2d 462 (Fla. 2d DCA 1978), viewed Jones as estopping the state from asserting “no standing” in the situation under consideration. Judge Grimes, speaking for the court, said:

In Jones, the U.S. Supreme Court held that when the prosecution allege[d] possession as the gravamen of the offense charged, it is estopped from denying possession as a predicate for standing to attack the seizure of the evidence allegedly possessed. To put it another way, if the prosecution is relying upon the seizure to prove a charge of possession, the person charged automatically has standing to contest the legality of the search regardless of whether he had a possessory interest in the premises searched. Thus, Jones was a departure from earlier cases which had held that one must have a possessory interest in the premises being searched in order to have standing to attack the search. 355 So.2d at 463.

Appellee contends that Simmons, by holding that a defendant’s testimony at a suppression hearing may not be used against the defendant at trial, has abolished the Jones automatic standing rule. However, while it has questioned the vitality of the Jones automatic standing rule, the Supreme Court of the United States has never expressly held that the Jones automatic standing rule has perished.

In United States v. Salvucci, 599 F.2d 1094 (1st Cir. 1979), the court held that the following automatic standing rule, extrapolated from Jones, is still the law:

[A] defendant [charged with an offense] has automatic standing to challenge the legality of a search or seizure if charged with a crime that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure. 559 F.2d at 1097.

We agree with the reasoning the court followed in reaching its holding that the Jones rule is still the law:

The Supreme Court itself has questioned, but unfortunately not decided, whether the second prong of the Jones rationale, prosecutorial self-contradiction, alone justifies the continued vitality of the doctrine of automatic standing. See Rakas v. Illinois, supra, 439 U.S. [128] at 135 n. 4, 99 S.Ct. 421 [at 426 n. 4, 58 L.Ed.2d 387]; Brown v. United States, supra, 411 U.S. [223] at 228, 229, 93 S.Ct. 1565 [at 1568, 1569, 36 L.Ed.2d 208], Since the Supreme Court first questioned the vitality of this doctrine in Brown, there has been a split of authority as to whether the doctrine survives. Compare United States v. Riquelmy, 572 F.2d 947, 950-51 (2d Cir. 1978), and United States v. Boston, 510 F.2d 35, 37-38 (9th Cir. 1974), cert. denied, 421 U.S. 990, 95 S.Ct. 1994, 44 L.Ed.2d 480 (1975) (doctrine survives) with United States v. Delguyd, 542 F.2d 346, 350 (6th Cir. 1976) (doctrine does not survive). Until the Supreme Court rules on this question, we are not prepared to hold that the automatic standing rule of Jones has been implicitly overruled by Simmons. That is an issue which the Supreme Court must resolve. 599 F.2d at 1097-98.

The sound reasoning of the Salvucci decision impels us to hold that the defendants in this case had automatic standing under Jones v. United States to challenge the search of the boat and residence and the seizure of the contraband. Because the Supreme Court of the United States now has before it and apparently will decide the question whether the Jones automatic standing rule is still to be followed, we hereby certify to the Supreme Court of Florida the following question as being one of great public importance:

Does a defendant have automatic standing to challenge the legality of a search or seizure if he is charged with an offense that includes, as an element of that offense, possession of the seized material at the time of the contested search and seizure?

The next question presented is whether the court was correct in finding that the interrogation of the appellants at the scene was non-custodial, thus obviating the necessity of Miranda warnings. That finding must be approved if the evidence supports it. However, our close scrutiny of the evidence presented at the hearing on the motion to suppress convinces us that the record does not support the trial judge’s conclusion that the interrogation in question was non-custodial. Deputy Voudy stated that while the appellants were not formally placed under arrest, they were in fact under arrest; he simply did not verbally advise them of their status. It is clear that the appellants were not free to leave the scene. Officer Campbell testified that the defendants were “technically under arrest. They would not have been allowed to leave.”

The Fourth Amendment applies to arrests whether announced or unannounced. In the Interest of R. L. J., 336 So.2d 132 (Fla. 1st DCA 1976). “A clear deprivation of liberty caused by law enforcement officials without formal words is nonetheless an arrest.” United States v. Canales, 572 F.2d 1182 (6th Cir. 1978). Thus, it seems to us that not only had the focus of the investigation centered on the appellants, but they were actually in custody as well. Therefore, the officers’ failure to advise them of their constitutional rights required suppression of any statements made to the officers in response to their interrogation. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966).

Finally, the trial court justified the entry of the house by the police without a warrant on the basis of exigent circumstances. So as not to unduly extend this opinion we would refer to the previous recitation of the facts to show what circumstances were known to the officers. It seems clear to us that the initial entry onto the premises was unlawful, as the trial court found. In addition, the officers did not feel they had sufficient facts constituting probable cause to obtain a search warrant. Yet the trial court found the search of the house was appropriate because there were exigent circumstances. We glean from appellee’s brief that the exigent circumstances were the officers’ suspicions that a burglary of the house was in progress; however, the record does not disclose grounds for such suspicions. As we view this record and the totality of the circumstances, there was neither probable cause nor exigent circumstances, and, of course, both must exist to justify a war-rantless search. As we pointed out earlier, the trial court found that the entry upon the premises was unlawful, and that the search of the boat was unlawful; we agree with those findings. We also hold that the informal arrest of the appellants was unlawful, since the officers had no grounds for any arrest. Any information which could have justified the officers in entering the house without a warrant was garnered by the foregoing unlawful conduct and thus could not be relied upon to authorize such entry. However, even absent the taint, we doubt that the information possessed by the officers would have been sufficient for a search of the house.

In view of the foregoing, we need not reach the propriety of the denial of appellants’ motions to dismiss. Since the trial court erred in denying appellants’ motions to suppress the judgments and sentences appealed from are reversed and the causes are remanded to the trial court with directions that it grant appellants’ motions to suppress.

REVERSED AND REMANDED with directions.

ANSTEAD and GLICKSTEIN, JJ., concur.

      . Rule 41(e), Federal Rules of Criminal Procedure, authorizes pretrial motions to suppress illegally obtained evidence.

      . We note that the Supreme Court has granted certiorari to review the Salvucci decision and to review a Kentucky Supreme Court decision (Rawlings v. Commonwealth, 581 S.W.2d 348 (Ky.1979)), which implied that the Jones automatic standing rule is no longer to be followed. The cases are to be argued together at some as yet unspecified time. 48 L.W. 3387.