author: COBB, Judge.

text:
    STATE of Florida, Appellant, v. Michael Anthony KING, Appellee.
    No. 81-313.
    District Court of Appeal of Florida, Fifth District.
    Nov. 11, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for appellant.
    James B. Gibson, Public Defender, and Julianne Piggotte McLarty, Asst. Public Defender, Daytona Beach, for appellee.
   COBB, Judge.

The state appeals the trial court’s granting of a motion to suppress several items of tangible evidence. The operative facts follow.

On the evening of September 6, 1980, a Holly Hill police officer, James Morgan, was directed by radio to report to the Day-tona Beach General Hospital. His testimony in this regard, as elicited by the direct examination of the prosecutor at the suppression hearing, was:

Q. While responding to a traffic accident, did you receive a call to go to Day-tona General Hospital?
A. Yes, I did.
Q. When you arrived there, what did you find?
A. I found several people by a car that it looked like it had been burglarized. It — apparently there were several people who worked at the hospital who had gone in pursuit of someone who had done it.
Q. What description was there of the individual?
A. It was a young black male, green shirt, green pants, tennis shoes, on a red bike, had some kind of brownish colored bag or small suitcase.
Q. All right.
Did you put that over the radio?
A. Yes, I did.
Q. What did you put over the radio, this thing you just said or what?
A. The same as I said.
THE COURT: Describe that again, Officer Morgan. Black male, green shirt?
A. Green pants.
BY MR. SMITH:
Q. Green pants.
A. Tennis shoes, red bike with a brownish bag or small suitcase on the back.
THE COURT: All right.

Within several minutes (between three and ten), another officer, Paul Page, spotted the defendant, King, who matched the description in all particulars, some five or six blocks from the hospital, riding away from it. Officer Page stopped King and detained him until the arrival of Officer Morgan. The officers told King he was a suspect; they testified that he was unusually friendly, to the extent of arousing their suspicions. There was no substantial indication that the defendant was armed. At the time the two officers were talking to King, he was standing beside his bicycle. At this point, the officers unzipped and searched a bowling bag affixed to a carrying rack on the back of the bicycle. Both officers testified this was a search for weapons. Inside the bag the officers found two citizen-band radios and an eight-track tape player, some screwdrivers, small hand tools and coathangers. The officers then arrested King and searched his person.

At the suppression hearing, the defense argued that the warrantless search of the bag was unreasonable on two bases: (1) the Chadwick closed-container doctrine, and (2) the absence of any reasonable belief that defendant was armed under Florida’s “stop and frisk” statute. The state argued that the officers had sufficient grounds to fear a weapon, thus justifying the search of the bag, which was within the reach of the defendant at the time. In attempting to argue evidentiary exceptions to the Chadwick doctrine, or to justify the applicability of the “stop and frisk statute,” the state failed to emphasize its argument to the trial court based upon search incident to lawful arrest.

The trial court observed that at the time they initially stopped King, the officers had probable cause to arrest him because he matched exactly the detailed description (“that fit the defendant to a ‘t’ ”, according to the trial judge). But the trial court felt that, even given a valid arrest, the Chadwick doctrine precluded a search of the closed bag absent exigent circumstances indicating an immediate threat to the safety of the officers. In this case, said the court, there was no evidence of a weapon or threat. Therefore, the court ruled that the warrantless search of the bag was invalid and granted the motion to suppress.

On appeal, the state argues that the search of the bag was incident to a custodial arrest in an area within that person’s immediate control. See § 901.21(l)(a), Fla. Stat. (1979); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). At the suppression hearing, the state correctly observed that a valid search may precede an arrest where probable cause to arrest exists before the search is made. Thomas v. State, 395 So.2d 280 (Fla.3d DCA 1981); State v. Byham, 394 So.2d 1142 (Fla. 4th DCA 1981); Dixon v. State, 343 So.2d 1345 (Fla.2d DCA 1977). The trial court correctly found that there was probable cause for the arrest of King prior to the search, but then applied a Chadwick rationale to the facts. Finding no evidence of a threat or weapon, the trial court in effect equated the bowling bag on the rear of King’s bicycle with the double-locked footlocker, which in Chadwick had been removed from the open trunk of a parked car and was, at the time of search, safely immobilized by police officers and far removed from the presence of the arrested person. It was clear in Chadwick that the Chimel exception (/. e., search incident to a lawful arrest) was not applicable. But the question under the instant facts is governed by the Chimel test, which has recently been reaffirmed by the United States Supreme Court.

The controlling Chimel rationale is set forth in the following paragraph:

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or its destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary item, must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the ar-restee’s person and the area “within his immediate control” — construing that phrase to mean the area from which he might gain possession of a weapon or destructible evidence.

395 U.S. at 762, 89 S.Ct. at 2040.

Once there was a valid arrest, or probable cause for such an arrest, the question in regard to the validity of the search was not the existence of independent evidence of a weapon as required for either an exception to the Chadwick doctrine or the applicability of the “stop and frisk” law. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under Chimel, the issue is not whether the arrestee and the area “within his immediate control” may be searched, for the lawful arrest establishes the authority to search. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). A search incident to arrest — including the area within the “immediate control” of the arres-tee — may be searched regardless of whether there is probable cause to believe that the person arrested possesses a weapon. Chadwick, 433 U.S. at 14, 97 S.Ct. at 2476; Robinson, 414 U.S. at 236, 94 S.Ct. at 477.

The potential dangers lurking in all custodial arrests make warrantless searches of items within the “immediate control” area reasonable without requiring the arresting officer to calculate the probability that weapons or destructible evidence may be involved.

Chadwick, 422 U.S. at 14-15, 97 S.Ct. at 2485.

Similarly, the Robinson court stated:

Since it is the fact of custodial arrest which gives rise to the authority to search, it is of no moment that [the police officer] did not indicate any subjective fear of the respondent or that he did not himself suspect that the respondent was armed.

414 U.S. at 236, 94 S.Ct. at 477.

So long as a lawful arrest has been made or, as here, probable cause to arrest existed at the time of the search, the arrestee and the area within his immediate control may be searched. In the present case, King was standing next to the bicycle to which was affixed the bag that was searched. The question at that point simply was whether or not the bowling bag was “within the immediate control” of King at the time of the search. Clearly, under this evidence, it was. Indeed, the defense has never asserted otherwise, either before the trial or appellate court.

Accordingly, the order of suppression is reversed, and this cause remanded for further proceedings below consistent with this opinion.

REVERSED and REMANDED.

SHARP and COWART, JJ., concur.

      . United States v. Chadwick, 433 U.S. 1, 97 S.ct. 2476, 53 L.Ed.2d 538 (1977); see also, Ulesky v. State, 379 So.2d 121 (Fla. 5th DCA 1979).

      . § 901.151, Fla.Stat. (1979).

      . See New York v. Belton,-U.S. -, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

      . Robinson concerned only a search of an ar-restee’s person incident to arrest. Its rationale applies to a search of the place within an arres-tee’s immediate control, since the scope of a permissible search incident to arrest includes the immediate control area.


source: Caselaw Access Project

author: FRANK D. UPCHURCH, Jr., Judge.

license: Public Domain

text:
    STATE of Florida ex rel. Michael T. FURLAND, Petitioner, v. The Honorable Virgil B. CONKLING, Circuit Judge for the Eighteenth Judicial Circuit, Respondent.
    No. 81-1021.
    District Court of Appeal of Florida, Fifth District.
    Nov. 11, 1981.

      James Russo, Public Defender and Gary F. Large, Asst. Public Defender, Titusville, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for respondent.
   FRANK D. UPCHURCH, Jr., Judge.

Petitioner, Michael T. Furland, seeks a writ of prohibition to prevent the Circuit Court for Brevard County from proceeding with his trial on the ground that the speedy trial period has run. We deny the writ.

On April 10, 1980, petitioner was charged with two counts of sexual battery and one count of aggravated battery. Petitioner failed to appear for trial but was subsequently arrested and jailed during April, 1981.

On May 6, 1981, petitioner filed a demand for speedy trial. Under Florida Rule of Criminal Procedure 3.191(a)(2), the state had sixty days within which to bring him to trial. On July 10,1981, the sixty-day period having passed, petitioner moved for discharge.

The state moved to strike petitioner’s demand for speedy trial pursuant to Florida Rule of Criminal Procedure 3.191(c) which provides in part:

A demand for speedy trial shall be deemed a pleading by the accused that he is available for trial, has diligently investigated his case and that he is prepared or will be prepared within 5 days. A demand filed by an accused who has not diligently investigated his case or who is not timely prepared for trial shall be stricken as invalid upon motion of the prosecuting attorney.

The state contends that on May 4, 1981, petitioner filed a notice of deposition for witness Elana Donophan and scheduled the deposition for May 15, 1981. The witness could not be served and was not deposed. No other witnesses were deposed although counsel for defendant did have statements from all the other witnesses. Petitioner claimed that he was prepared at the time his demand was filed but the court concluded otherwise and struck the demand.

In State ex rel. Hanks v. Goodman, 253 So.2d 129 (Fla.1971), the supreme court, in interpreting the rule, declared:

After a demand for speedy trial has been filed, the court should not summarily dismiss a defendant at the expiration of the 60-day period provided in the rule. It is not only appropriate, but necessary, to ascertain whether or not the accused had a “bona fide desire” to obtain the speedy trial and to determine whether or not the accused or his attorney ‘has diligently investigated his case, and that he is prepared’ for trial. If these prerequisites to the filing of the demand were not met, the demand for speedy trial should be stricken as being null and void. (Emphasis added.)

253 So.2d at 130.

In Hopkins v. Barad, 380 So.2d 1166 (Fla.3d DCA 1980), the Third District explained that in order to ferret out spurious speedy trial demands, the supreme court has explicitly conditioned the right to require a speedy trial on demand upon an objective showing that the defendant is really ready for trial.

In the instant case, while petitioner conceivably had a bona fide desire for an immediate trial, the trial court concluded that he had not “diligently investigated his case nor was he prepared for trial when the demand was made.” Petitioner filed a notice of deposition for a crucial witness on the same day his demand for speedy trial was served on the prosecution and scheduled the deposition for eleven days later. While petitioner contended at the hearing for discharge that he had no intention of deposing Ms. Donophan and merely wished to determine whether she was still within the court’s jurisdiction, his actions could reasonably be viewed as indicating that he had not completed a diligent investigation of his case and was not prepared for trial at the time the demand was filed. The trial court therefore was correct in denying his motion for discharge.

WRIT DENIED.

COBB and COWART, JJ., concur.

      . In Hopkins, defendant filed pro se a demand for speedy trial as to a Dade County charge while he was in jail in Escambia County. He was subsequently transferred to Dade County but apparently never obtained counsel. He took no steps to investigate or prepare his case but claimed he had a sincere desire to go to trial immediately. The appellate court held that even though the defendant had a bona fide desire for a speedy trial, his complete failure to prepare his case for trial established that he had not “diligently investigated his case” when the demand was made.

      . Petitioner’s counsel admitted that Ms. Dono-phan’s testimony would be very damaging to the petitioner.

      . The demand for speedy trial was served upon the prosecution on May 4, 1981.


author: PER CURIAM. DAUKSCH, Chief Judge,

text:
    Ira Lee TOSSIE, a/k/a Bruce Tossie, Appellant, v. STATE of Florida, Appellee.
    No. 81-1132.
    District Court of Appeal of Florida, Fifth District.
    Nov. 11, 1981.
    Ira Lee Tossie, pro se.
    No appearance for appellee.
   PER CURIAM.

AFFIRMED.

See Ables v. State, 404 So.2d 137 (Fla. 5th DCA 1981).

FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.

DAUKSCH, C. J., concurs specially with opinion.

DAUKSCH, Chief Judge,

concurring specially:

I agree we should affirm the decision of the trial judge but I do not understand the basis for the lower court’s statement that it was “without authority or means to determine” the issue of ineffective assistance of counsel. It is that very court which should determine that issue if it is properly pleaded by holding a hearing, taking evidence, making findings and reaching a decision. Ables v. State, 404 So.2d 137 (Fla. 5th DCA 1981).


author: PER CURIAM. HURLEY, Judge, concurring specially:

text:
    Harry Franklin JONES, Appellant, v. Zama North Blanchard JONES, Appellee.
    No. 79-1384.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1981.

      Patrick V. Fogarty and Leonard M. Bernard of Carey, Dwyer, Cole, Selwood & Bernard, P. A., Fort Lauderdale, for appellant.
    Steven Squire of Miller & Squire, Chartered, Fort Lauderdale, for appellee.
   PER CURIAM.

Husband appeals a modification of his child support obligation. We conclude from a review of the record and the briefs that the trial court acted within its discretion in increasing husband’s child support obligation. Based on the order of the trial court and the record, it is impossible to tell the length of time husband will be required to pay the child support in question. It further appears that the precise issue of support after age 18 was not presented to, or decided by, the trial court. Appellant has indicated that the issue of majority was not considered by the trial court. We find no indication that it was presented and thus do not address the issue.

AFFIRMED.

BERANEK and HERSEY, JJ., concur.

HURLEY, J., concurs specially with opinion.

HURLEY, Judge, concurring specially:

This appeal presents the question whether a father who is under a legal obligation to provide for his children’s support until their twenty-first birthday may be required to pay for his oldest child’s college expenses. In my view the requirement constitutes a legitimate exercise of the trial court’s discretion and, therefore, I join in the court’s affirmance.

The parties were divorced in Louisiana on March 1, 1972. Pursuant to the judgment in that proceeding, appellant was to pay $500 per month as support for the parties’ three children. His annual income at that time was $32,000, but when this appeal was filed, he was earning in excess of $100,000 per year as an orthopedic surgeon in Bro-ward County. Appellee earns approximately $7,500/8,500 per year as a school teacher in Louisiana.

On June 29, 1973, the Louisiana decree was established as a judgment and decree in the State of Florida. In 1977, appellee petitioned for modification of the judgment in Florida, requesting an increase in child support due to changed circumstances. Her financial affidavit demonstrated that the needs of the children had so increased since the date of the original judgment that the expenses incurred by her and the children now exceeded her monthly net income, excluding child support and alimony, by over $2,000. Adopting the findings of a general master, the trial court found that an increase in child support was warranted due to a substantial change in circumstances. Having considered appellant’s increased income and the increased needs of the minor children which resulted from their ages, the rise in the cost of living, inflation, and educational requirements, the court ordered appellant to pay an additional $350 per month as child support. In addition, since his oldest child had graduated from high school and evidenced the desire and academic ability to enter college, appellant was also ordered to assume financial responsibility for her college education.

The record clearly reflects a substantial change in circumstances warranting an increase in child support which appellant is financially capable of providing. Therefore, I do not hesitate in joining the affirmance of that portion of the court’s order. Consequently, all that is left to determine is whether, under the facts of this case, child support should include college expenses. I believe it should.

The lowering of the age of majority from 21 to 18 operated prospectively only, leaving unaffected the rights and obligations existing prior to July 1, 1973. Section 743.-07, Florida Statutes (1979). Since the child support obligation herein was established in Florida on June 29, 1973, it will continue until the children reach the age of 21. Finn v. Finn, 312 So.2d 726 (Fla.1975); Burgdorf v. Burgdorf, 372 So.2d 988 (Fla.2d DCA 1979). Thus, college expenses do not present the problem of post-majority support which has surfaced since the lowering of the age of majority. See Nicolay v. Nicolay, 387 So.2d 500 (Fla.2d DCA 1980), surveying Florida case law on this topic; see also Note, Post-Majority Support in Florida: An Idea Whose Time Has Come? 5 Nova L.J. 271 (1981).

In my view, the guiding principal for the case at bar is found in the following excerpt from Finn v. Finn, supra:

In this age of sophisticated technology and economic complexity with the necessity of development of special skills to qualify for pursuit of a trade, profession or to obtain employment, a person over 18 and less than 21 may indeed be dependent on the help of others to obtain what education and training is needed to be competitive in the economic system in which he must make his way. He and society have a right to expect his parents to meet that need to the reasonable extent of their ability to do so... . Id. at 731.

Accord, Aumaitre v. Troyanos, 344 So.2d 910 (Fla.3d DCA 1977); Bosem v. Bosem, 269 So.2d 758 (Fla.3d DCA 1972); Register v. Register, 230 So.2d 684 (Fla.1st DCA 1970).

I am also influenced by appellant’s obvious financial ability to assume responsibility for his child’s college expenses and by the child’s demonstrated aptitude and desire to pursue a college education. Moreover, since the parents are well-educated, it is reasonable to assume that the child would have been given the opportunity for higher education had the marriage not been dissolved. Thus, I believe that the trial court’s discretion in modifying child support is sufficiently broad to allow for the inclusion of college expenses under the unique circumstances herein.


author: PER CURIAM.

text:
    In the Interest of J. L., a child.
    No. 79-2343.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1981.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Both parties to this appeal agree that the finding of guilt of petit theft must be reversed. We affirm that part of the order finding appellant guilty of possession of alcoholic beverages by a minor and breach of peace, disorderly conduct. Appellant has been placed on probation in a community program. The issue is whether reversal of one finding of guilt requires reversal of the order placing appellant on probation.

We hold that it does not. When a juvenile court finds a juvenile to be delinquent because he is guilty of more than one infraction of the law, an appellate court will not reverse the finding of delinquency if at least one of the findings of guilt is correct. See, for example, Interest of B.S. v. State, 320 So.2d 459 (Fla.3d DCA 1975); P.A.P. v. State, 383 So.2d 922 (Fla.2d DCA 1980).

We reverse the finding of guilty of petit theft, affirm the additional findings and affirm the commitment.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

' LETTS, C. J., and HERSEY and GLICK-STEIN, JJ., concur.


author: HERSEY, Judge. ANSTEAD, Judge, specially

text:
    Alex MORNINGSTAR, Appellant, v. STATE of Florida, Appellee.
    No. 79-2360.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1981.
    Rehearing Denied Dec. 2, 1981.
    Harry Gulkin and Joseph A. Varón of Varón & Stahl, P. A., Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Paul H. Zacks and Max Rudmann, Asst. Attys. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

This is an appeal from a judgment and sentence following appellant’s conviction by a jury of attempted trafficking in stolen property, as prohibited by Section 810.019, Florida Statutes (1977). Appellant challenges the correctness of the trial court’s denial of a motion to suppress evidence resulting from electronic interceptions of his conversations with two police informants.

The appellant operates a pawn shop. The police secured the agreement of two confessed thieves, who had allegedly furnished the appellant with stolen jewelry for resale, to conduct personal and telephone conversations with the appellant about this criminal conduct, and to allow such conversations to be monitored and recorded. At trial, the officers who monitored and recorded the conversations (which took place at appellant’s place of business) identified the tape recordings. The informants also testified and identified the recordings which were offered into evidence over appellant’s objection.

In a recent decision, the Florida Supreme Court held that it was unlawful for police to monitor and record, without a warrant, conversations conducted in a defendant’s home between himself and an undercover police officer. State v. Sarmiento, 397 So.2d 643 (Fla.1981). The Court held that such conduct violated the provisions of Article I, Section 12 of the Florida Constitution, which prohibits the unreasonable interception of private communications, notwithstanding the provisions of Section 934.-03(2)(c), Florida Statutes (1977), which authorizes the interception of a communication when a law enforcement officer or one under his direction is a party to it or where one of the parties to such communication has given prior consent to the interception. On the other hand the Supreme Court held that the police informant who participated in the conversation was free to testify about the contents of the conversation, because the defendant was deemed to have assumed the risk that his partner in conversation might disclose the contents of the conversation to others. That situation was distinguished from those where third parties are monitoring or recording the conversations:

But what makes the issue before us different from the situation above is that Sarmiento did enjoy a reasonable expectation of privacy that no one else was listening to the conversation in the home besides the undercover police officer and others present therein. To assume the risk that one who participates in a conversation held in the home might later reveal the contents of that conversation is one thing, but to assume the risk that uninvited and unknown eavesdroppers might clandestinely participate in that conversation and later reveal its contents is another, and indeed proves too much.

Sarmiento, supra, at page 645.

The majority then concluded that testimony of police officers “as to what they heard on the electronic monitor” emanating from a body bug concealed on the person of an undercover police officer transacting a drug buy in the home of the defendant was inadmissible.

The holding is said to be based upon the fact that Article I, Section 12 of the Florida Constitution affords more stringent protection of the right of privacy than that afforded by the Federal Constitution. To reach this result the court initially distinguished between the risk assumed by an individual that another participant in a conversation might reveal the contents of that conversation to others (to which the court attaches no constitutional impediments because of the element of consent) and the risk that a private conversation will be transmitted, with the consent of one party, by electronic device to others who may listen and later reveal its contents (which the court finds constitutionally infirm).

Justice Alderman’s dissent, concurred in by Justice Boyd, relying on United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1970) and Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), postulates that this is a distinction without a difference.

The Sarmiento court then made a second important distinction. The majority emphasized that the troublesome transmission emanated from the defendant’s home, the “one place to which we can retreat, relax, and express ourselves as human beings without fear that an official record is being made of what we say by unknown government agents at their unfettered discretion,” quoting from Sarmiento v. State, 371 So.2d 1047, 1051 (Fla.3d DCA 1979).

In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) the Supreme Court of the United States, in discussing such a distinction, stated:

The Government stresses the fact that the telephone booth from which the petitioner made his calls was constructed partly of glass, so that he was as visible after he entered as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye — it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a business office, in a friend’s apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.

At 352, 88 S.Ct. at 511-12.

Also see Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed. 1154 (1968).

The Sarmiento opinion expressly relied on the Katz analysis of a “reasonable expectation of privacy.” If we apply the Katz analysis here, and add the element of the greater protection afforded by Florida’s constitution, we might well be forced to the conclusion that an individual also has a reasonable expectation of privacy that his personal conversations conducted at his place of business are not being monitored by government officials.

On the other hand, there is precedent for admissibility. In the earlier case of Tollett v. State, 272 So.2d 490 (Fla.1973) the Florida Supreme Court indicated that under Article I, Section 12 of the Florida Constitution, the interception of a private communication is unreasonable unless a warrant is first obtained or consent from one of the parties to the communication is secured and established. The court in that case stated:

We take note of Chapter 934, F.S., enacted as Chapter 69 — 17 at the 1969 legislative session and particularly Section 934.01(4) thereof, which reads in part:
“(4) To safeguard the privacy of innocent persons, the interception of wire or oral communications when none of the parties to the communication has consented to the interception should be allowed only when authorized by a court of competent jurisdiction ...” (Emphasis added.)
It is our view that this language should not be interpreted to obviate the necessity of a police officer securing a warrant unless one of the parties has given consent which must be shown through proper testimony — not hearsay. “Consents” from police informers with no substantial or requisite interest in the residence or papers or personal effects of a suspect are not legally sufficient to relieve police officers of the necessity of securing search warrants to search the dwelling, person or papers and effects of the suspect; neither should their “consents” except under the safeguards of authentication as hereinafter noted be sufficient to obviate the necessity of securing a warrant for intercepting wire or oral communication.
The quoted language in Section 934.-01(4) does not abrogate the rule expressed in Walker v. State, supra, that a participant in a communication must himself take the witness stand and testify that he gave his consent to the interception as a predicate to the introduction of the electronic reproduction of the communication. Its introduction under those circumstances is not violative of the new language in Section 12, Article I; rather, it is in keeping with the intent of the new verbiage. This is so because it is an elementary rule of evidence that a party to a discussion or communication with a defendant may take the witness stand and testify, subject to cross-examination, as to the contents of his communication or discussion with a defendant and this can include as a logical concomitant to his testimony any tape or electronic recordings of such communications or discussions which he himself made or which he authorized (consented for) police officers to make. Such direct testimony easily falls in the class of those exceptions where establishment of probable cause and securance of a warrant or order are not required.

Id. at 494 (Emphasis added).

While the statutory exception treated in Toilett has subsequently been modified the constitutional provision interpreted by that court was the same as that applied in Sar-miento, yet the Tollett case was not mentioned in the Sarmiento opinion.

To conclude, then, the Sarmiento court overcame three obstacles in reaching the result that the evidence was inadmissible. First, the testimony would not have been excluded by federal constitutional considerations. The supreme court found that the Florida Constitution imposes a stricter standard. Second, the behavior which resulted in acquiring the evidence was sanctioned by Section 934.03(2)(c), Florida Statutes (1977). To that extent, held the supreme court, the statute is “unconstitutional and unenforceable.” Third, there is precedent for admissibility. Since neither the majority opinion nor the dissent specifically address the Tollett case, although it is indirectly cited in the dissent, we are left to speculate whether the court felt that it was clearly distinguishable or, on the other hand, that it was by necessary implication, overruled.

In addition to the foregoing it is necessary to reemphasize the final and important distinction apparently created by Sarmien-to. The court in that case suggests that it is appropriate to apply one rule to interception of transmissions from the defendant’s home, a rule of exclusion, and a different rule to transmissions from other locations. While, analytically, we have initial difficulty with this aspect of that ease (particularly in view of Katz, supra) its application would seem to control disposition of the present case.

In is tempting to generalize that the Fourth Amendment and its Florida counterpart protect people rather than places. Like all oversimplifications, however, such an observation has a tendency to obscure the detail necessary for prospective application of the principle involved. It seems appropriate to conclude that the quantum of reasonableness that society will ascribe to an expectation of privacy has a direct albeit undefined relationship to the geographical location of the individual at the time of the alleged violation of his constitutional rights. Such an analysis seems implicit in Katz, supra, and, indeed, is explicit in Justice Harlan’s concurring opinion in that case.

That an individual’s home affords his expectation of privacy the highest degree of credibility can no longer be doubted after Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). In that case Justice Stevens, for the majority, laid to rest any lingering suspicion that the home might not be deserving of special treatment in Fourth Amendment cases:

The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home — a zone that finds its roots in clear and specific constitutional terms: “The right of the people to be secure in their . . . houses .. . shall not be violated.” That language unequivocally establishes the proposition that “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable government intrusion.” Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 683, 5 L.Ed.2d 734. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

100 S.Ct. 1371, 1381, 1382.

We conclude that the Florida Supreme Court is equally impressed with the necessity for singling out a man’s home for such special treatment and that the court’s concern found expression in Sarmiento.

We therefore interpret Sarmiento as rendering inadmissible a communication obtained in a manner otherwise permissible under Section 934.03(2)(c), Florida Statutes (1979) only where that communication emanates from the defendant’s home. Our sister court, the First District Court of Appeal, reached a similar conclusion in Padgett v. State, 404 So.2d 151 (Fla. 1st DCA 1981). That proposition disposes of the principal question posed by appellant Morn-ingstar.

We find no merit in the other issues raised by appellant and for the foregoing reasons we affirm the judgment and conviction appealed from here.

Because the subject is one we believe to be of great public interest we certify to the Supreme Court of Florida the following question:

Does Article I, Section 12 of the Florida Constitution prohibit reliance upon Section 934.03(2)(c), Florida Statutes (1979) as to the interception of a private communication emanating from a location other than the defendant’s “home”?

AFFIRMED AND QUESTION CERTIFIED.

LETTS, C. J., concurs.

ANSTEAD, J., specially concurs with opinion.

ANSTEAD, Judge, specially

concurring:

I concur in the majority’s certification of the question as one of great public importance. I also concur in the majority’s resolution of those issues presented in this appeal which do not involve the propriety of electronic eavesdropping. However, while I concur in the majority’s disposition of the Sarmiento issue, I find it difficult to discern a viable rationale that would limit the application of the Sarmiento holding to the home.

At first blush the majority’s interpretation of Sarmiento appears eminently reasonable. In Sarmiento, our Supreme Court held Florida Statute 934.03(2)(c) unconstitutional under Article I, Section 12 of the Florida Constitution “insofar as that statute authorizes the warrantless interception of a private conversation conducted in the home" (emphasis in original). Subsequently, in Hoberman v. State, 400 So.2d 758 (Fla.1981), the court reversed “convictions . . . grounded in part upon tape recordings of private incriminating conversations between appellant and a Dr. Airan in appellant’s home” (emphasis supplied). Thus, it initially appears that the court is attempting to limit the impact of Article I, Section 12 protections against the unreasonable interception of private communications to those non-exigent situations in which law enforcement officers intercept, with the consent of one party but without a warrant, an incriminating conversation originating in the non-consenting party’s home. This conclusion is seemingly buttressed by the court’s denial of certiorari in Franco v. State, 376 So.2d 1168 (Fla.3d DCA 1979), cert. den. 386 So.2d 636 (Fla.1980), in which the admission at trial of recordings of telephone conversations between the defendants and an investigator, obtained outside their homes and without a warrant, was upheld. In addition, the First District Court of Appeal has recently affirmed a conviction obtained under similar circumstances, Pittman v. State, 397 So.2d 1205 (Fla. 1st DCA 1981), and in so doing has noted the Supreme Court’s denial of certio-rari in three other cases in which the Third District’s opinion in Sarmiento was interpreted quite narrowly. The First District has also refused to apply Sarmiento to a situation involving a defendant’s motel room. See Padgett v. State, 404 So.2d 151 (Fla. 1st DCA 1981).

However, a closer scrutiny of Sarmiento indicates that perhaps the Supreme Court has not limited the impact of its decision to conversations occurring in the defendant’s home. The Supreme Court secured review of the Third District Court of Appeal’s decision in Sarmiento v. State, 371 So.2d 1047 (Fla.3d DCA 1979) on the basis that such decision conflicted with Franco v. State. Art. V, Section 3(b)(3), Florida Constitution (1972). In Franco the Third District upheld the admission at trial of recordings of telephone conversations between the defendants and an investigator, obtained outside their homes and without a warrant. Franco and Sarmiento may be distinguishable on the basis that one involved the home and the other did not, however, the granting certiorari in Sarmiento the Supreme Court found that the two cases were in conflict. Obviously, two cases cannot be in conflict if they can be validly distinguished; hence, any attempt to define Sarmiento as limiting the impact of Article I, Section 12 protections against electronic eavesdropping to conversations occurring in the defendant’s home is belied by the jurisdictional basis upon which the Supreme Court accepted review in the case. It also follows that if the Supreme Court undertook to review Sarmiento on the basis that Sarmiento conflicted with Franco, and approved Sarmien-to, that Franco was implicitly disapproved, although the Sarmiento decision is silent on this point.

In addition, any scheme explicitly limiting constitutional protections against electronic eavesdropping to conversations occurring in a defendant’s home cuts against the grain of current federal and state search and seizure law. As noted in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), “the Fourth Amendment protects people, not places.” 389 U.S. 351, 88 S.Ct. 511, 19 L.Ed.2d 582. The issue is thus not so much the place where the conversation occurs but whether the person has a reasonable expectation of privacy. The Sarmiento decision expressly relied on the Katz analysis of privacy interests. In Katz, the defendant was found to have a reasonable expectation of privacy regarding a telephone conversation he initiated from a public phone booth. The court stated:

The Government stresses the fact that the telephone booth from which the petitioner made his calls was constructed partly of glass, so that he was as visible after he entered as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye — it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a business office, in a friend’s apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.

389 U.S. 352, 88 S.Ct. 511, 512, 19 L.Ed.2d 582. See also Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed. 1154 (1968).

In sum, any scheme which purports to limit constitutional protections against electronic eavesdropping to conversations occurring in a defendant’s home is contrary to the “reasonable expectation of privacy” framework of analysis developed in Katz and adopted by Sarmiento. To say that a person may never have a reasonable expectation that his private communications are not being intercepted except within the confines of his home is illogical. A reasonable expectation of privacy may exist regarding a conversation occurring in a variety of locations. Katz v. United States. On the other hand, such expectation of privacy may not always exist in a defendant’s home. For instance, it could hardly be argued that a kidnapper known to be holding a hostage in his home would have a reasonable expectation of privacy regarding his outgoing telephone calls. What constitutes a “reasonable expectation of privacy” in a given situation is a function of many factors, of which the location of the conversation is only one. Katz v. United States. Applying the Katz analysis here I think it is reasonable to conclude that a person would have a reasonable expectation of privacy that his personal and private conversations conducted out of the presence of others at his place of business are not being monitored by government officials. This conclusion is bolstered by the Supreme Court’s decision in Odom v. State, 403 So.2d 936 (Fla. 1981), which held, while making no specific reference to the defendant’s home, that the warrantless recording of a conversation between the defendant and another pursuant to the provisions of Section 934.-03(2)(c) constituted an unreasonable interception of a private communication in violation of the provisions of Article I, Section 12 of the Florida Constitution.

The recording of a private conversation by one of the parties thereto constitutes an interception and a private person cannot record such a conversation without his conversation partner’s permission. State v. Tsavaris, 394 So.2d 418 (Fla.1981). The same protection prevents police authorities from intercepting private communications without a warrant. However, Section 934.-03(2)(c) attempts to authorize a police officer, without a warrant, to intercept a conversation if he secures the permission of one of the parties. In other words the officer is authorized to do what the private party cannot do himself. And, under Section 934.03(2)(c), the officer’s authority is unrestricted so long as it is exercised “to obtain evidence of a criminal act.” The officer can intercept innocent as well as incriminating conversations based solely on his own judgment that he is doing so to obtain evidence of a criminal act. Normally, the officer would have to secure the permission of an impartial magistrate based upon a showing of probable cause that evidence of a criminal act will be secured by the interception (among other requirements as detailed in Chapter 934), before an interception could be made.

Is this exception to the warrant requirement constitutionally permissible? Well, one could say that a party to a conversation assumes the risk that he may be conversing with a police informant and thereby impliedly waives any privacy claims. Under this view the conversation could be recorded by the conversation partner without any constitutional violation. This is in essence the view taken by the U. S. Supreme Court. See United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979); United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971); Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963). However, the Florida Supreme Court in Sarmiento specifically rejected this view and instead held that under the provisions of the Florida Constitution which expressly protect private communications, one may assume the risk that his conversation partner may repeat the conversation, but one does not assume the risk, and thereby waive his privacy claims, that the conversation will be recorded or otherwise intercepted. The “waiver” or “assumption of risk” argument has thus been rejected as a rationale for authorizing interceptions of private communications by the police without a warrant under the provisions of the Florida Constitution. If indeed that argument has been rejected then upon what rationale can an exception to the warrant requirement be defended? No other rationale has been suggested other than the arrest warrant analogy involved in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). I do not believe the holding of Payton v. New York, barring a routine arrest in a suspect’s home without a warrant absent exigent circumstances, furnishes any rationale for limiting the expectation of privacy in communications to the home. For one thing, the Florida Supreme Court did not even mention Payton in its Sarmiento opinion. More importantly, however, the Payton case is simply not on point. Obviously under Payton an arrest without a warrant could be made of a suspect in a public telephone booth, but the telephone call itself could not be intercepted without a warrant. The Payton opinion itself noted:

[T]he prohibitions of the [Fourth] amendment have been extended to protect against invasion by electronic eavesdropping of an individual’s privacy in a phone booth not owned by him, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, even though the earlier law had focused on the physical invasion of the individual’s person or property interests in the course of a seizure of tangible objects.

100 S.Ct. 1371 at 1382. Thus, Payton hardly stands for the proposition that an expectation of privacy in communications is limited to the home.

Notwithstanding my difficulty in limiting application of the Sarmiento decision to the home, I cannot ignore the plain language used in the Sarmiento majority opinion in response to the dissenting view that the interceptions in question were lawful:

Our response to this contention is simple; insofar as that statute authorizes the warrantless interception of a private conversation conducted in the home, it is unconstitutional and unenforceable. (Emphasis in original.)

397 So.2d 643 at 645.

      . § 934.03(2)(c) reads:
      (c) It is lawful under this chapter for a law enforcement officer or a person acting under the direction of a law enforcement officer to intercept a wire or oral communication when such person is a party to the communication or one of the parties to the communication has given prior consent to such interception and the purpose of such interception is to obtain evidence of a criminal act.

      . However, see the discussion of Franco in Justice Alderman’s dissent in Sarmiento at pages 647-648.

      . The Supreme Court has now extended the Payton holding to include not only the home of the defendant but also the home of a third party. Steagald v. United States, - U.S. -, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981).


author: PER CURIAM. BERANEK, Judge,

text:
    Willie Davis GREGORY, Appellant, v. STATE of Florida, Appellee.
    No. 80-1010.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1981.
    Appeal from Circuit Court, St. Lucie County; C. Pfeiffer Trowbridge, Judge.
    Richard L. Jorandby, Public Defender, and Gary Caldwell, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

HERSEY, J., and OWEN, WILLIAM C., Jr., (Retired), Associate Judge, concur.

BERANEK, J., concurs specially with opinion.

BERANEK, Judge,

concurring specially.

This case involves a determination of insolvency pursuant to Section 27.52, Florida Statutes (1979). The trial court applied the statute, concluded defendant/appellant was not insolvent, and denied his request for appointed counsel. I cannot fault the trial court in concluding that defendant was solvent in view of the statute. I write separately only to point out that inflation has taken its toll on the numbers placed in the statute and to urge that the matter be further considered by the Legislature.


author: BERANEK, Judge.

text:
    Robert Lee PAULK, Appellant, v. STATE of Florida, Appellee.
    No. 80-1717.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1981.
    Richard L. Jorandby, Public Defender, and Gary Caldwell, Atty., West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Defendant appeals his conviction of aggravated assault. We conclude that error has not been demonstrated and in affirming choose to comment on only one point raised by appellant.

The trial court denied appellant’s request to have the concluding argument before the jury. The defendant is generally held to have this right if he offers no testimony in his own behalf other than his own. See Crosby v. State, 90 Fla. 381, 106 So. 741 (1925), and Florida Rule of Criminal Procedure 3.250. The introduction of other evidence by a defendant results in a waiver of the right to present the concluding argument. In the present case, the defendant introduced documentary evidence while in the process of cross-examining a state witness. The document was received as a defense exhibit and the court ruled, in accordance with Crosby v. State, supra, and Grimsley v. State, 304 So.2d 493 (Fla. 1st DCA 1974), that defendant thereby waived the right to concluding argument. Defendant contends this was reversible error because the document had been previously mentioned in the State’s case. Defendant urges that Lyttle v. State, 320 So.2d 424 (Fla. 2d DCA 1975), requires a different ruling. We conclude the trial court correctly applied the Crosby and Grimsley precedents rather than the Lyttle rationale. The existence of the document in question had merely been mentioned in the State’s case and none of its content had been presented or disclosed in any way. The document was mentioned in an incidental fashion only and was in no way part of the State’s evidence. As such, when it was introduced by defendant, it constituted independent evidence on defendant’s behalf. The court correctly ruled that defendant thereby did not have concluding argument. All other points are without merit.

AFFIRMED.

LETTS, C. J., and OWEN, WILLIAM C., Jr., Retired, Associate Judge, concur.


text:
    William KNAPP, Appellant, v. STATE of Florida, Appellee.
    No. 80-1934.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1981.
    Richard L. Jorandby, Public Defender, and Allen T. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   OWEN, WILLIAM G, Jr., (Retired) Associate Judge.

Appellant, having pled nolo contendere to a charge of possession of burglary tools, was placed on probation for three years with adjudication withheld. Twenty-six (26) months later an affidavit of violation of probation was filed. At hearing appellant did not admit the violations and no evidence was taken in support of them. The court announced that it was going to “reinstate” appellant’s probation, but would adjudicate him guilty of the offense of possession of burglary tools.

We construe the trial court’s act of adjudicating appellant guilty, coming some twenty-six months after the court had initially placed appellant on probation and withheld adjudication, as a modification of the original probation order. Probation orders are not subject to modification except for violation of conditions and then only upon notice and hearing. Buckbee v. State, 378 So.2d 39 (Fla.3d DCA 1979); Smith v. State, 377 So.2d 250 (Fla.3d DCA 1979).

The judgment of the trial court dated October 10, 1980 is vacated.

BERANEK and HERSEY, JJ., concur.


text:
    In the Interest of G. J. N., a child.
    No. 80-1980.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1981.
    Craig S. Dyer of Shaffner & Shaffner, P. A., Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., for ap-pellee.
   BERANEK, Judge.

Appellant, a juvenile, was found guilty of battery and placed on probation. He appeals, urging error in the admission of certain testimony given by an investigating police officer. The delinquency petition alleged a battery occurring on September 21, 1979. Although not specifically provided for under the Rules of Juvenile Procedure, the State answered a defense request for statement of particulars. This answer also stated September 21, 1979, as the date of the offense. At trial, however, the victim testified the battery occurred on September 1, 1979. This testimony was given by the victim on two occasions in answer to direct questions from the State. Despite the variance, no clarification was sought from the witness.

The State’s only other witness was a police officer who discussed the case with the victim approximately three months after the occurrence. Over defense objection, the police officer was allowed to testify that the victim told him that the battery had occurred on September 21, 1979. The trial court overruled the defendant’s hearsay objection and admitted the testimony as a business record pursuant to Section 90.-803(6), Florida Statutes (1979). This ruling was error. The report itself was never introduced into evidence and the officer was simply allowed to testify to the oral statements of the victim. The business record exemption permits introduction of a document rather than oral hearsay statements.

We conclude that the testimony was hearsay and was improperly admitted. See Cox v. State, 394 So.2d 237 (Fla. 1st DCA 1981). Both the petition and the volunteered statement of particulars established September 21, 1979, as the date of the offense. Under these circumstances, the court erred in finding the juvenile guilty of the offense as charged on September 21, 1979, since absent the officer’s testimony, there was no evidence as to this date. The matter is remanded to the trial court with directions to enter judgment in favor of appellant.

REVERSED AND REMANDED.

HERSEY, J., and OWEN, WILLIAM C., Jr., Retired, Associate Judge, concur.


author: MOORE, Judge.

text:
    REGENCY HIGHLAND ASSOCIATES, Appellant/Cross-Appellee, v. REGENCY HIGHLAND CONDOMINIUM ASSOCIATION, INC., Appellee/Cross-Appellant, v. MARIO AURICCHIO FENCE DIVISION, INC., and Fence Wholesalers of America, Inc., Appellees.
    No. 81-13.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1981.
    Joel D. Kenwood of Baskin & Sears, Boca Raton, for appellant/cross-appellee.
    Robert A. Eisen of Marchbanks, Bell & Bison, P.A., Boca Raton, for appellee/cross-appellant.
    No appearance for appellees.
   MOORE, Judge.

A condominium developer, Regency Highland Associates, appeals from an order directing it to pay a damage award to the condominium association or, in the alternative, into the court registry. The condominium association cross-appeals a prior order denying its motion to intervene in the developer’s suit against the fence companies, Mario Auricchio Fence Division, Inc. and Fence Wholesalers of America, Inc., from which the developer recovered the above mentioned damage award. We affirm the order denying the association’s motion to intervene and reverse the order directing payment of the damage award.

After the developer transferred control of the condominium to the association, it sued the fence company for breach of warranty. Final judgment was entered in favor of the developer for $6,282.70.

The fence company filed a “Motion for Protective Order/Motion for Clarification and Stay of Execution.” The motions expressed the fence company’s concern over its possible liability to the association. The motions sought a protective order against the taking of a deposition in aid of execution and a stay of execution until the real party in interest entitled to recovery against the fence company could be determined.

The association then filed a motion to intervene in the developer’s suit against the fence company pursuant to Florida Rule of Civil Procedure 1.230. The motion alleged that the developer had transferred control of the condominium to the association and, therefore, the association is the real party in interest entitled to recover the judgment entered against the fence company.

At the hearing on the motion for protective order, in response to the fence company’s concern about a separate suit against it by the association, the developer stipulated that it would use the money recovered from the fence company to repair the fence. The court then denied the fence company’s motion for protective order.

The developer executed a satisfaction of the judgment against the fence company. The trial court initially orally granted the association’s motion to intervene. The association then filed a motion to enforce the stipulation made by the developer in court that the proceeds of the judgment would be used to repair the fence. Upon rehearing of the motion to intervene, however, the trial court denied intervention. Nevertheless, the court then granted the association’s motion to enforce the stipulation. This appeal followed.

The trial court denied the association’s motion to intervene by applying the general rule against intervention after final judgment. Wags Transportation System v. City of Miami Beach, 88 So.2d 751 (Fla.1956); Dickinson v. Segal, 219 So.2d 435 (Fla.1969); Maryland Casualty Company v. Hanson Dredging, Inc., 393 So.2d 595 (Fla. 4th DCA 1981). On appeal, the association, however, asserts that the trial court abused its discretion by failing to apply an exception to this rule when intervention is in the interest of justice. See Wags Transportation System v. City of Miami Beach, supra. Wags Transportation System involved a motion by homeowners to intervene in a zoning ease after final judgment. The court found that the trial court erred in denying the homeowners’ motion to intervene. The Court held that the motion to intervene showed such an interest in the res that the ends of justice require that it be granted. The Florida Supreme Court in Dickinson v. Segal, supra, however, refused to extend the exception in Wags Transportation System beyond the facts of that case. Furthermore, this Court has strictly adhered to the general rule against intervention after final judgment. Maryland Casualty Company v. Hanson Dredging, Inc.

Applying the standards set forth in Maryland Casualty Company v. Hanson Dredging, Inc. for reviewing the trial court’s exercise of discretion in ruling on a motion to intervene after final judgment, we find that the record before us does not demonstrate an unjust result nor an abuse of discretion. Accordingly, we affirm the trial court’s denial of the association’s motion to intervene.

Given the trial court’s denial of the association’s motion to intervene, the trial court improperly granted relief to a non-party by granting the association’s motion to enforce the developer’s oral stipulation that the proceeds of the judgment would be used to repair the fence. Accordingly, we reverse the order directing the developer to pay the damage award to the association or, in the alternative, into the court registry.

We note that this is a technical ruling only. We are not ruling on the availability of enforcement of the developer’s stipulation upon motion by the proper party.

Affirmed in part, reversed in part.

BERANEK and HERSEY, JJ., concur.

      . Mario Auricchio Fence Division, Inc. is a wholly owned subsidiary of Fence Wholesaler’s of America, Inc. Final judgment was entered against Mario Auricchio Fence Division, Inc., hereinafter referred to as the “fence company.”


text:
    Thomas James IVEY, Appellant, v. STATE of Florida, Appellee.
    No. 81-40.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1981.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The order revoking appellant’s probation is affirmed, as is the judgment and sentence, except that provision of the judgment assessing costs against appellant, adjudicated insolvent, is vacated. Cox v. State, 334 So.2d 568 (Fla. 1976).

BERANEK, and HERSEY, JJ., and OWEN, WILLIAM C., Jr., Associate Judge (Retired), concur.


text:
    STATE of Florida, Appellant, v. Augusto SALAZAR, Appellee.
    No. 81-372.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

The trial court’s order dismissing the information as unconstitutional is reversed on the authority of State v. Benitez, 395 So.2d 514 (Fla. 1981). The matter is remanded for further proceedings.

REVERSED AND REMANDED.

LETTS, C. J., and BERANEK and GLICKSTEIN, JJ., concur.


author: HURLEY, Judge.

text:
    MERRILL LYNCH PIERCE FENNER & SMITH INC., and Brian Sheen, Petitioners, v. Helen MELAMED, Respondent.
    No. 81-1227.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1981.

      Bennett Falk and Nancy P. Phillips of Walton, Lantaff, Schroeder & Carson, Miami, for petitioners.
    F. Kendall Slinkman, West Palm Beach, for respondent.
   HURLEY, Judge.

Merrill Lynch Pierce Fenner & Smith Inc. (Merrill Lynch) and its employee Brian Sheen petitioned this court to review a non-final order which denied a motion to compel arbitration. We have certiorari jurisdiction. Lapidus v. Arlen Beach Condominium Association, 394 So.2d 1102, 1103 (Fla.3d DCA 1981); Rules 9.030(b)(2)(A) and 9.100, Fla.R.App.P.

The issue before us is whether the United States Arbitration Act (Federal Arbitration Act), 9 U.S.C. §§ 1 to 14, supersedes inconsistent provisions of Florida law and the Florida Arbitration Code, Sections 682.01 to 682.22, Florida Statutes (1979). We hold that it does and that state courts are bound to apply the Federal Arbitration Act when it applies.

The present litigation arises out of a contractual relationship between the respondent, Helen Melamed, and the petitioners. In May, 1980, Ms. Melamed placed cash and securities, including stocks listed on a national stock exchange, with Merrill Lynch to be maintained in a cash management account. Ms. Melamed opened this account through Brian Sheen, an account executive employed by Merrill Lynch.

A dispute ensued and Ms. Melamed filed suit in the Circuit Court of Palm Beach County. In response the petitioners filed a motion to compel arbitration pursuant to the Federal Arbitration Act. They asserted that Ms. Melamed had signed a contract requiring the parties to submit all disputes arising out of the relationship to arbitration. The contract contained a clause incorporating the laws of New York. (At oral argument Ms. Melamed conceded that the contract involves interstate commerce within the meaning of the Federal Arbitration Act).

Next, the petitioners filed an answer which asserted as an affirmative defense the right to arbitration. They also attached a second motion to compel arbitration. The trial court denied both motions on the ground that state courts are not required to apply the Federal Arbitration Act. In particular, the trial court refused to apply Sections 2 and 3 of the Federal Arbitration Act. 9 U.S.C. §§ 2 and 3.

Under the supremacy clause of the United States Constitution, Article VI, Clause 2, federal statutes enacted pursuant to the United States Constitution are the supreme law of the land and supersede inconsistent state laws. The Federal Arbitration Act was enacted pursuant to the commerce clause of the United States Constitution and supersedes inconsistent state laws. Merrill Lynch Pierce Fenner & Smith Inc. v. Haydu, 637 F.2d 391, 395 (5th Cir. 1981); Societe Generale de Surveilance, S.A. v. Raytheon Management & Systems Co., 643 F.2d 863, 867 (1st Cir. 1981).

Section 2 of the Federal Arbitration Act makes an arbitration provision in an agreement involving interstate commerce “valid, irrevocable, and enforceable” unless the agreement would be revocable for a reason at law or equity. 9 U.S.C. § 2. Contracts are not revocable merely because they incorporate the law of a state other than the forum. However, under Florida law and the Florida Arbitration Code an otherwise valid arbitration agreement is not enforceable if it incorporates the law of another state. See § 682.02, Fla.Stat. (1979); Damora v. Stresscon International, Inc., 324 So.2d 80 (Fla.1975); Romar Transports, Ltd. v. Iron & Steel Co. of Trinidad and Tobago, Ltd., 386 So.2d 572 (Fla. 4th DCA 1980); Knight v. H.S. Equities, Inc., 280 So.2d 456 (Fla. 4th DCA 1980). Thus in Florida, an agreement like that in the present case which incorporates the laws of New York cannot be enforced under Florida law, but the same agreement can be enforced under the Federal Arbitration Act. Thus, in this instance, the two bodies of law are inconsistent.

The supremacy clause requires us to resolve any inconsistency between the two laws in favor of the federally created right, and to subordinate Florida law to the supreme law of the land. We therefore hold that Florida courts must recognize and apply the Federal Arbitration Act and that arbitration agreements which are valid and enforceable under the federal law are also valid and enforceable in Florida courts.

We are aware that some courts have held that the Federal Arbitration Act applies only in federal courts. See, e. g., Pullman, Inc. v. Phoenix Steel Corp., 304 A.2d 334 (Del.Super.Ct.1973). But most courts have held that the Act applies in both federal and state courts. See, e. g., Allison v. Medicab International, Inc., 92 Wash.2d 199, 597 P.2d 380 (1979) (en bane); Fite and Warmath Construction Co. v. MYS Corp., 559 S.W.2d 729 (Ky.1977); West Point-Pepperell, Inc. v. Multi-Line Industries, Inc., 231 Ga. 329, 201 S.E.2d 452 (1973); Main v. Merrill Lynch Pierce Fenner & Smith Inc., 67 Cal.App.3d 19, 136 Cal.Rptr. 378 (1977).

Our view of the ambit of the supremacy clause coupled with the sound judicial policy of discouraging unfair forum shopping compel us to adopt the majority rather than the minority rule. Under the minority rule, state courts refuse to enforce an arbitration clause that is enforceable under the federal act unless the clause is also enforceable under state law. Thus, the minority rule encourages unfair forum shopping because a litigant can sometimes escape his contractual obligation to arbitrate by instituting suit in state rather than in federal court. Moreover, we believe that the right to arbitration is substantial and can effect the ultimate outcome of a dispute. See Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 203, 76 S.Ct. 273, 276, 100 L.Ed. 199 (1956). The existence of this right and the result of a ease should not depend on whether the case is before a state or federal tribunal.

We also hold that the provisions of Section 3 of the Federal Arbitration Act apply to Florida state courts. Section 3 generally requires “courts of the United States” to stay judicial proceedings upon a showing that the disputes are subject to a valid and enforceable arbitration agreement.

We feel compelled to interpret the somewhat ambiguous expression “courts of the United States” to include Florida courts in order to protect the rights created by the Federal Arbitration Act. A litigant must often rely on the state courts to enforce his rights under the Federal Arbitration Act. Under the Act, petitions in federal court to compel arbitration must allege an independent basis of subject matter jurisdiction. 9 U.S.C. § 4; Commercial Metals Co. v. Balfour, Guthrie & Co., 577 F.2d 264, 268-69 (5th Cir. 1978). In the absence of an independent basis, the federal courts do not have jurisdiction to enforce the arbitration rights. Rather, the litigant must rely on state courts to enforce the federal right to arbitration.

Fairness, logic, and constitutional constraints require us to enforce federal rights in state courts whenever Congress allows. Congress has allowed state courts to enforce federal arbitration rights, and has made state courts the exclusive forum for vindication of those rights except in those instances when the litigant can invoke federal jurisdiction on some independent ground. We should not and cannot make the substance of a federal right depend on the fortuity of the existence of an independent ground of federal jurisdiction.

To summarize, we hold that the Federal Arbitration Act is a national substantive law that supplants inconsistent state laws and that Florida courts are bound by the Act. We quash the order denying the petitioners motion to compel arbitration, and instruct the trial judge to reconsider the motion in light of this opinion.

DOWNEY and GLICKSTEIN, JJ., concur.

      . Section 2 of the Act provides as follows:
      A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.
      9 U.S.C. § 2.

      . Section 682.02 of the Florida Arbitration Code provides as follows:
      Two or more parties may agree in writing to submit to arbitration any controversy existing between them at the time of the agreement, or they may include in a written contract a provision for the settlement by arbitration of any controversy thereafter arising between them relating to such contract or the failure or refusal to perform the whole or any part thereof. Such agreement or provision shall be valid, enforceable, and irrevocable without regard to the justiciable character of the controversy; provided that this law shall not apply to any such agreement or provision to arbitrate in which it is stipulated that this law shall not apply or to any arbitration or award thereunder.

      § 682.02, Fla.Stat. (1979) (emphasis added.)

      . Section 3 of the Act provides as follows: If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration. 9 U.S.C. § 3.


text:
    STATE of Florida ex rel. Debra Morris PASTORIUS, Petitioner, v. Harry G. HINCKLEY, Jr., as Circuit Judge of the Seventeenth Judicial Circuit, in and for Broward County, Florida, Respondent.
    No. 81-1448.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for petitioner State of Florida.

      Michael Brodsky, Miami, for Debra Morris Pastorius.
    No appearance for respondent.
   PER CURIAM.

By petition for writ of certiorari the state seeks to set aside the trial court’s judgment of acquittal entered immediately upon the entry of a plea of nolo contendere by the defendant, Debra Morris Pastorius, to charges of delivery of marijuana. The state contends that the trial court lacked authority to acquit the defendant under these circumstances. Vinson v. State, 345 So.2d 711 (Fla.1977). We agree and grant the petition upon the authority of Vinson, supra.

Accordingly, the petition is granted and the trial court’s order of July 13, 1981, is hereby quashed with directions that any further proceedings be in accord with this order and the opinion of the Florida Supreme Court in Vinson, supra.

DOWNEY, ANSTEAD and MOORE, JJ., concur.


text:
    Luis RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 80-2158.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 1981.
    Jerry Hill, Public Defender, Bartow, and Samuel R. Mandelbaum, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Deborah A. Osmond, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm appellant’s probation revocation and sentence of fifteen years in prison.

There was competent, substantial evidence to support the trial court’s findings that appellant had violated his probation by (1) failing to file monthly reports with his probation supervisor and (2) committing a burglary. It is clear that appellant’s probation could and would have been revoked on the basis of these violations alone.

However, since appellant had been adjudged insolvent and there was no evidence concerning his ability to pay the costs of his supervision, it was improper for the trial court to find that he had violated his probation by failing to pay those costs, and that finding must be stricken. Coxon v. State, 365 So.2d 1067 (Fla. 2d DCA 1979).

Accordingly, the revocation of appellant’s probation is affirmed, but the cause is remanded with directions to strike from the revocation order the finding that appellant violated condition (11) of his probation.

BOARDMAN, A. C. J., and GRIMES and OTT, JJ., concur.


text:
    Denise E. RINGHEISEN, Appellant, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Appellee.
    No. 80-2216.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 1981.
    David B. Kesler of Law Office of David B. Kesler, P. A., St. Petersburg, for appellant.
    William E. Hennen of Marlow, Shofi, Ort-mayer, Smith, Connell & Valerius, Tampa, for appellee.
   PER CURIAM.

Affirmed. See Industrial Fire & Casualty Insurance Company v. Jones, 363 So.2d 1168 (Fla. 3d DCA 1978).

GRIMES, Acting C. J., and OTT and DANAHY, JJ., concur.


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    UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellant, v. Eugene WILSON, Appellee.
    No. 80-2290.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 1981.
    George A. McKendree of Miller, McKen-dree & Somers, Tampa, for appellant.
    No appearance for appellee.
   PER CURIAM.

United States Fidelity and Guaranty Company appeals from the trial court’s order awarding a partial summary judgment on liability in favor of Wilson. Because the record reveals that there is a genuine issue of material fact, we reverse the order granting summary judgment. Holl v. Talcott, 191 So.2d 40 (Fla. 1966); Empire Fire and Marine Insurance Company v. Koven, 402 So.2d 1352 (Fla. 4th DCA, 1981).

REVERSED AND REMANDED.

SCHEB, C. J., and HOBSON and CAMPBELL, JJ., concur.


text:
    Charles DUNLAP, Appellant, v. STATE of Florida, Appellee.
    No. 81-513.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 1981.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Evelyn D. Golden, Daytona Beach, and Deborah A. Osmond, Asst. Attys. Gen., Tampa, for appellee.
   PER CURIAM.

Charles Dunlap appeals the order revoking his probation and requests a remand for clarification. The trial court considered the following alleged probation violations: (3) appellant would not change his residence, employment or leave the county without receiving his probation officer’s consent; (4) appellant would not possess, carry or own a weapon or firearm without his probation officer’s consent; (7) appellant would comply with the instructions of his probation officer.

The trial judge made an oral pronouncement that appellant changed his address without notifying his probation officer and further violated his probation by committing armed robbery. The written order of probation revocation did not recite which conditions of probation were violated and thus, it did not conform to the trial court’s oral pronouncement. We find this to be erroneous since the revocation order should have stated the specific conditions which were violated. Sing Eng v. State, 350 So.2d 559 (Fla. 2d DCA 1977).

Accordingly, we remand for correction of the written order but otherwise affirm the revocation of probation. Appellant need not be present for this purpose.

OTT, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.


text:
    Gary Jerome WIMES, Appellant, v. ST. LUCIE COUNTY, Appellee.
    No. 80-1706.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 1981.
    Osborne Walker O’Quinn, Fort Pierce, for appellant.

      No appearance for appellee.
   PER CURIAM.

Reversed on the authority of Wakulla County v. Davis, 395 So.2d 540 (Fla. 1981).

BERANEK and HERSEY, JJ., and OWEN, WILLIAM C., Jr., Associate Judge (Retired), concur.


text:
    STATE of Florida, Appellant, v. Pressley Ervin COOPER and Donald Xavier Tynan, Appellees.
    No. 81-641.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    John S. Matthews, Tampa, for appellees.
   PER CURIAM.

AFFIRMED. See State v. Collie, 390 So.2d 441 (Fla. 5th DCA 1980).

DOWNEY, ANSTEAD and HURLEY, JJ., concur.


text:
    ATLANTIC COAST DEVELOPMENT CORPORATION, Appellant, v. HOFCO, INC., et al., Appellees.
    No. 79-1983.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 1981.
    Rehearing Denied Jan. 21, 1982.
    Steven R. Brownstein of Smith, Mandler, Smith, Werner, Jacobowitz & Fried, P. A., Miami Beach, for appellant.
    Curtis G. Levine of Baskin & Sears, Boca Raton, for appellees.
   ON REHEARING

PER CURIAM.

We vacate our opinion filed September 9, 1981 and grant rehearing. It is now apparent that appellant did object at the trial court to an award of attorney’s fees to appellees on the ground that appellees’ counsel failed to testify at the hearing on their motion for fees. As we held in Cohen v. Cohen, 400 So.2d 463 (Fla. 4th DCA 1981), the testimony of appellees’ attorney should have been required by the trial court. Accordingly, we grant the motion for rehearing, and reverse and remand to the trial court for the opportunity for a further hearing. See Cohen, supra, at 465.

LETTS, C. J., and MOORE and GLICK-STEIN, JJ., concur.