author: BOOTH, Judge. ERVIN, Judge,

text:
    HEALTH CLUBS OF JACKSONVILLE, INC., Raymond Cataldo and Ioannis Diamondopolous, Appellants, v. STATE of Florida ex rel. Ed AUSTIN, as State Attorney for the Fourth Judicial Circuit, Appellee.
    Nos. NN-46, NN-426, MM-364, MM-365 and NN-349.
    District Court of Appeal of Florida, First District.
    March 18, 1980.
    Rehearing Denied April 22, 1980.
    Robert W. Pope, St. Petersburg, for appellants.
    Jim Smith, Atty. Gen., Gerald B. Curing-ton, Asst. Atty. Gen., for appellee.
   BOOTH, Judge.

This cause is before us on appeals from various orders entered in the proceeding below brought by the State under Florida Statutes, § 823.05, to enjoin defendants from operating a purported health club on the grounds that it constituted a public nuisance. Motion to dismiss and to strike was filed asserting, inter alia, that the prayer for relief was overly broad. Hearing was held on the plaintiff’s application for temporary injunction, and evidence was adduced in the form of testimony and affidavits by the plaintiff in support of the complaint. The defendants offered no evidence. Thereafter, the court entered its order of December 13, 1978, granting a temporary injunction based on the following findings:

“That the central business purpose of the Health Clubs of Jacksonville, Inc., located at 6850 Arlington Expressway, Jacksonville, Florida, and its operators, Phillip Ranson, Raymond Cataldo, and Ioannis Diamondopoulos, is for purposes of lewdness.
“That the Health Clubs of Jacksonville, Inc., located at 6850 Arlington Expressway, Jacksonville, Florida, Phillip Ran-son, Raymond Cataldo, and Ioannis Diam-ondopoulos failed to elicit evidence or otherwise demonstrate that the premises is or could be operated as a legitimate business either in whole or in part.”

• On January 5, 1979, the trial court entered an order denying defendants’ amended motion to dismiss the complaint and to strike portions of the prayer for relief.

On January 31, 1979, plaintiff filed a petition for rule to show cause, setting forth the various circumstances of defendants’ violations of the temporary injunction of the court, with supporting affidavits, and the matter was noticed for hearing. The trial court entered order to show cause why defendants should not be adjudged guilty of, and punished for contempt of court. Thereafter, hearing was held, and defendants again offered no evidence. The trial court entered a judgment of civil contempt, setting forth the various details of appellants’ violations of the order of temporary injunction, finding no mitigating circumstances, holding defendants guilty of civil contempt. The order fines Health Clubs of Jacksonville $100,000 and each individual defendant $30,000. The trial court also entered a judgment of criminal contempt, finding willful disobedience of the trial court’s order and sentencing each individual defendant to six months in the county jail.

Thereafter, on March 13, 1979, plaintiff moved for entry of a default for failure of defendants to answer the complaint, and default was duly entered March 22, 1979. By order dated March 28, 1979, the trial court permanently enjoined defendants from continuing “said nuisance of unlawful acts” and directed the Sheriff to abate the public nuisance by taking possession of the premises. The order of permanent injunction makes the following findings:

“That the central business purpose of the Health Clubs of. Jacksonville, and its operators, Phillip Ranson, Raymond Cataldo, and Ioannis Diamondopou-los, is for purposes of lewdness.
“The Court finds that the business of Health Clubs of Jacksonville, as is presently operated by Phillip Ran-son, Raymond Cataldo, and Ioannis Diam-ondopoulos is and does constitute a nuisance under the laws of the State of Florida.
“The Court finds that Health Clubs of Jacksonville, ... as operated by Phillip Ranson, Raymond Cataldo, and Io-annis Diamondopoulos could not be operated as a legitimate business without permitting acts of lewdness, to-wit: masturbation for compensation. Five Sky, Inc. vs. State, 131 So.2d 39 DCA 1961; Health Clubs, Inc. vs. State, ex. rel., Eagan, 339 [sic] [338] So.2d 1324 4th DCA (1976).”

Defendants’ motion to set aside the default and to set aside and vacate the permanent injunction order was heard and denied by order of the court dated April 5, 1979.

On appeal to this court, defendants raise a number of issues, including the contention that the prayer for relief in the complaint should have been stricken as too broad in that it seeks to enjoin the entire business of appellants. As authority for this contention, appellants cite Health Clubs, Inc. v. State ex rel. Eagan, 338 So.2d 1324 (Fla. 4th DCA 1976), and Health Clubs, Inc. v. State ex rel. Eagan, 377 So.2d 28 (Fla. 4th DCA 1979). The first opinion holds that the complaint seeking to abate a health club as a public nuisance was defective in alleging violation of the law by innocent and/or wrongful acts, a defect not present in the complaint here. In concluding, the court noted “For the benefit of counsel and the court,” as follows (338 So.2d at 1327):

“For the benefit of counsel and the court below we note that the scope of the injunction sought by the State in the present case is too broad. It seeks to enjoin the entire business of the ‘Garden of Paradise,’ not just the particular acts alleged to constitute a nuisance. Appellants must at least be given the opportunity to demonstrate that they can operate a legitimate health club business on the premises without the alleged lewdness. Where illegal conduct which has been decreed to constitute a public nuisance is separable from legal conduct within a business enterprise, only the illegal conduct may be enjoined. Five Sky, Inc. v. State, 131 So.2d 39 (Fla. 3d DCA 1961); Fasson v. State, 141 Fla. 367, 193 So.2d 299 (1940).” (e. s.)

The court did not strike the prayer for relief, but warned that appellants must be given opportunity to demonstrate they could operate a legitimate business.

In the second Health Clubs case cited, supra, the appeal was from the final judgment in the same suit, granting permanent injunction, and from subsequent judgments of contempt. The Fourth District Court of Appeal there held that the injunction was too broad, but affirmed the judgments of contempt for its violation. In the second Health Clubs case, the order granting permanent injunction permitted the continued operation of the business, but enjoined specific conduct. The District Court held that some of the conduct enjoined was not illegal in and of itself, such as providing female attendants for male customers, and should not have been enjoined. Since the trial court permitted the continuation of the business, that court obviously found the business could be operated in a legitimate fashion under the test set out in the first Health Clubs case, supra, a test taken from Five Sky, Inc. v. State, 131 So.2d 39, 41 (Fla. 3rd DCA 1961), wherein the court held:

“[T]he record shows, and the chancellor so found, that the appellants here could not operate their legitimate business at Five O’Clock Club without permitting the acts of lewdness, assignation and solicitation for prostitution which had been decreed to constitute a public nuisance. Clearly the chancellor had the power to deprive the appellants of the use of their property when it was found necessary to secure the relief warranted by the particular facts . . ”

The trial court in the instant case applied the above rule and found, as did the court in Five Sky, supra, that the business could not be operated without permitting acts of lewdness. The findings of the trial court in its orders for temporary and permanent injunctions support the relief granted, which relief is within the terms of § 823.05.

We note that defendants were afforded an opportunity to present evidence on several occasions during the proceedings below, but did not choose to do so. On appeal to this court, defendants have not questioned the sufficiency of the evidence to support the findings of the trial court in support of injunctive relief nor those in support of the judgments of contempt. We have considered the other points raised on this appeal and find them to be without merit.

Accordingly, the judgment below is AFFIRMED.

WILLIS, BEN C., Associate Judge, concurs.

ERVIN, J., concurs and dissents with an opinion.

ERVIN, Judge,

concurring and dissenting.

I concur with the majority’s opinion affirming the orders of the trial court, except the affirmance of those orders which permanently enjoined the operation of defendants’ business as a public nuisance and found defendants guilty .of indirect criminal contempt. As to the former order, the court entered a permanent injunction after default had been entered. On appeal, defendants challenge the lower court’s finding that the business of Health Clubs constituted a nuisance and could not be operated as a legitimate business without committing certain acts of lewdness, i. e., masturbation for compensation. The majority’s opinion suggests that the trial court’s finding, upon the entry of default, is binding on appeal regardless of the complaint’s allegations. The majority states that certain of the Fourth District’s opinions, holding that only illegal conduct which is separable from legal conduct in a business enterprise may be enjoined, have no application here because appellants were unable to demonstrate they could operate the club legitimately. The majority, erroneously under the circumstances I think, places the burden on defendants — not the plaintiff — to establish that the business could be legitimately operated. While the rule is that a defaulting party may not on appeal “ ‘challenge the sufficiency of the evidence, [he] is entitled to contest the sufficiency of the complaint and its allegations to support the judgment.’ ” Bay Products Corp. v. Winters, 341 So.2d 240, 242 (Fla. 3d DCA 1976). Thus a defaulting party admits only well-pleaded facts and is accountable to the other party only for the relief requested under such facts. See Williams v. Williams, 227 So.2d 746 (Fla. 2d DCA 1969); Bay Products Corp. v. Winters, supra, at 241; Sentry Indem. Co. v. Hendricks Enterprises, 371 So.2d 1105 (Fla. 4th DCA 1979).

The relief granted under the pleaded facts was, in my judgment, overbroad, because neither the allegations in the complaint nor the affidavits attached to it sup- . ported the court’s finding that the health club could not be operated legitimately. In addition to alleging specific acts of lewdness, the complaint alleged legitimate activities by employees, such as their sponge bathing customers and permitting them to ride exercise cycles, take a sauna or shower.

The relief granted should have been limited only to the specific acts alleged to constitute a nuisance — not the entire business of the health club. The order should be particularized, especially where some activities are proper, and confined only to unlawful activity. An injunction should never be broader than is necessary to give the injured party the relief warranted under the circumstances of the case. Moore v. City Dry Cleaners and Laundry, 41 So.2d 865 (Fla.1949); Florio v. State, 119 So.2d 305 (Fla. 2d DCA 1960).

The majority’s opinion does not recite the circumstances leading up to the judgment of indirect criminal contempt, which I also believe was wrongfully entered. The state’s petition for rule to show cause requested the court to issue an order requiring the defendants to “show cause [why] they should not be attached for civil contempt . .” for violating the court’s temporary injunction (e. s.). While the court’s order to show cause did not distinguish between civil and criminal contempt, it directed that a copy of the petition and affidavit be attached to the order and served upon defendants.

At the outset of the hearing, appellants’ counsel complained that the order was insufficient to place appellants on notice that the issues would be directed to criminal as well as civil contempt and requested a continuance. The motion was denied. Later, the court entered separate judgments finding appellants guilty of both civil and criminal contempt. It is clear that procedural due process safeguards were not accorded the individual appellants. See Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977), where the court stated that if a trial court can reasonably anticipate that conduct is of such a nature as will invoke the criminal contempt powers of the court, “procedural due process of law demands that the proceedings be conducted in conformity with Fla.R.Crim.P. 3.840.” Id. at 426. Moreover, the sufficiency of notice in a rule to show cause involving criminal contempt is judged by standards of criminal law. Deter v. Deter, 353 So.2d 614, 618 (Fla. 4th DCA 1977). Accord, Aaron v. State, 284 So.2d 673 (Fla.1973).

The point was appropriately raised below, but it was not argued in appellants’ brief , although it was argued orally before the court. While assignments of error are no longer demanded, Fla.R.App.P. 9.040(e), appellant’s brief is required to contain “[ajrgument with regard to each issue.” Rule 9.210(b)(4). And, even in the absence of a rule requiring that errors be assigned, professional advocacy necessitates that errors relied on for reversal should be stated in the brief, with the points argued. See Anderson v. State, 215 So.2d 618 (Fla. 4th DCA 1968). I think the due process question should be considered, even in the absence of alleged error, because I believe it to be one of fundamental dimension which goes to the very foundation of the case. See Clark v. State, 363 So.2d 331, 333 (Fla.1978). The procedure authorized by the lower court is similar to a situation where a defendant is sued for damages in a complaint alleging civil trespass, yet finds himself at the conclusion of trial convicted of criminal trespass. In my view, fundamental principles of due process demand that the conviction be set aside.

I concur in the majority’s affirmance as to the remaining points raised.

      . Appeal from this order, Case No. MM-365, was dismissed sua sponte by order of the court dated September 24, 1979.

      . Health Clubs, Inc. v. State ex rel. Eagan, 377 So.2d at 30:
      “One charged with contempt may defend by showing that the order was void, but it is no defense that the order was merely erroneous, as distinguished from void, [citations omitted] Where the lower court had jurisdiction, the injunction must be obeyed until vacated or modified by that court or until it has been reversed on appeal . ”

      . Final order:
      “IT IS THEREUPON:' ORDERED AND ADJUDGED:
      “That the Defendants be permanently restrained from continuing said nuisance or any unlawful acts on said premises or on any other premises in the County of Duval, State of Florida.
      “That the Sheriff of Duval County abate said public nuisance and for that purpose take possession of said premises and effectually close the same against their use for any unlawful purpose.
      “That the costs of this action totaling $295.00 be taxed against the Defendants and the same be adjudged a lein [sic] against all personal property found at Health Clubs of Jacksonville, Inc., located at 6850 Arlington Expressway, Jacksonville, Florida, and let execution issue forthwith. Florida Statutes Chapter [§] 60.05 (1977).
      “That the Sheriff of Duval County take possession of all furniture, fixtures, equipment and moveable property now used on said premises and remove the same to a place of safekeeping for sale to satisfy the lein [sic] in accordance with the procedure set forth in Florida Statutes Chapter 56 (1977).”

      . Health Clubs, Inc. v. State ex rel. Eagan, 338 So.2d 1324 (Fla. 4th DCA 1976); Health Clubs, Inc. v. State ex rel. Eagan, 377 So.2d 28 (Fla. 4th DCA 1979).

      . The only point raised in appellants’ brief relating to the criminal contempt judgment was the court erred in issuing the temporary injunction when no evidence was presented showing the individual defendants’ relationship to the corporation.


source: Caselaw Access Project

author: McCORD, Judge.

license: Public Domain

text:
    C. L. B., a Child, Petitioner, v. Carlton L. JONES, Superintendent, Duval Regional Juvenile Detention Center, Respondent.
    No. SS-409.
    District Court of Appeal of Florida, First District.
    March 18, 1980.

      Louis 0. Frost, Jr., Public Defender, and Claudia T. Wright, Asst. Public Defender, for petitioner.
    Robert M. Eisenberg, Jacksonville, for respondent.
   McCORD, Judge.

This is a Petition for Habeas Corpus brought against the Duval Regional Juvenile Detention Center, alleging that (1) petitioner was not afforded a detention hearing within 48 hours as required by §§ 39.032 and 959.15, Fla.Stat.; and (2) no evidence was presented at her untimely detention hearing, as required by § 39.032(2)(a-e) and Florida Rule of Juvenile Procedure 8.050, to meet the criteria for detention. In response to the petition, Carlton Jones, Superintendent of the Duval Regional Juvenile Detention Center, District IV, State of Florida Department of Health and Rehabilitative Services (Department) has pointed out that subsequent to the events giving rise to this appeal, petitioner has been transferred, by court order, to a permanent detention center, the-Florida School for Girls. The Department argues that since petitioner is no longer being held in the Duval Regional Juvenile Detention Center, the questions presented by the above two allegations are moot. Although we agree that the issues raised are moot at this time, we find them to be of sufficient importance to merit a ruling upon the merits in relation to the procedures followed below. The issues involve the fundamental right to liberty and are subject to repetition, not only as to numerous other children who have been and will be incarcerated in similar circumstances, but also as to petitioner herself since she remains in the status of a child committed to the Department under Chapter 39, Fla. Stat. These issues involve the duties and authority of public officials in the administration of the law, yet they consistently evade review, because of the relatively short periods of incarceration prior to the disposition of juvenile cases. For these reasons we will review the merits of this petition. Compare Walker v. Pendarvis, 132 So.2d 186 (Fla.1961), and Ervin v. Capital Weekly Post, 97 So.2d 464 (Fla.1957).

On June 27, 1979, petitioner was committed to the Department for a criminal offense to which she entered a plea. The Department did not hold her in detention but did require her to comply with a Commitment Supervision Agreement. On November 19,1979, petitioner was detained by the Department for having violated her Commitment Agreement by having been suspended from school twice for causing a disturbance and defying authority. § 959.15(1), Fla.Stat. (1979), provides the circumstances under which a delinquent child committed to the Department may be taken into custody and held in detention. That statute states as follows:

“(1) If an authorized agent of the department has reasonable ground to believe that any delinquent child committed to the department has committed an act for which he could be adjudicated delinquent, violated his furlough agreement in a material respect, or escaped from a facility of the department, such agent may take such person into his active custody. The superintendent, warden, or jailer of any facility, state, county, or municipal, is authorized to take such child into custody for the purpose of assuring that the child is delivered to the appropriate intake office, or appropriate facility of the department. However, no child shall be held in detention longer than 48 hours, excluding Sundays and legal holidays, unless a special order so directing is made by the judge after a detention. hearing finding that detention is required based on the criteria in s. 39.032(2). The order shall state the reasons for such finding. The reasons shall be reviewable by appeal or in habeas corpus proceedings in the district court of appeal.”

See also § 39.032.

Petitioner was detained for seven days before a hearing was held. At that hearing, the Department sought to have petitioner detained for several more days until a hearing could be held to determine whether she should be transferred to a permanent detention center. The Department points out that petitioner was held for seven days pursuant to an administrative order entered on June 6,1979, by the Chief Judge of the Circuit Court of Duval County. That order provides that when a juvenile who has been committed to the Department is subsequently charged with violation of an after-care agreement, the Department may detain the juvenile for up to seven days before holding a detention hearing. While the reasons set forth in the administrative order for its adoption illustrate legitimate problems resulting from compliance with § 959.15, the order is in conflict with the provisions of that statute. In keeping with § 959.15(1), a detention hearing should have been held on petitioner’s behalf within 48 hours, excluding Sundays and holidays, of the time she was placed in detention for violation of her Agreement.

After the detention hearing, the trial .court granted the Department’s request for permission to detain petitioner until the transfer hearing could be held. The trial court stated, as its basis for ordering the continued detention, only the following finding:

“Said child would in all probability commit an offense that would endanger herself or the community prior to Court, appearance. ’

The court erred in failing to state the reasons behind that finding as required by § 959.15(1).

The above statutes should be complied with by the juvenile authorities and the trial courts.

We must deny the petition for habeas corpus, however, because the child is now presumably legally detained (no issue being raised as to the legality of her present commitment) and is no longer detained by the respondent in these proceedings. The order to show cause is discharged and the writ is denied.

ROBERT P. SMITH, Jr. and SHIVERS, JJ., concur.


author: SCHWARTZ, Judge.

text:
    The STATE of Florida, Appellant, v. Joseph Jay GOODLEY, Appellee.
    No. 79-985.
    District Court of Appeal of Florida, Third District.
    March 18, 1980.
    Rehearing Denied April 18, 1980.

      Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellant.
    McGill, Dulmer & Tracy and Robert Jackson Magill, Venice, for appellee.
    Before HENDRY and SCHWARTZ, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   SCHWARTZ, Judge.

The state appeals from an order suppressing a half-pound of cocaine which was discovered and seized after police officers, armed with a search warrant, opened the defendant’s suitcase at the Miami International Airport. The basis of the ruling below was the conclusion that the information which constituted probable cause to believe that the bag contained contraband — primarily the result of the “sniffing” of a trained police dog — had been unconstitutionally secured. We disagree and reverse.

The facts are clear, simple, and, since only the police officers testified at the motion to suppress, entirely undisputed. On January 22, 1979, three Dade County officers assigned to the airport narcotics unit observed Goodley standing in line at the National Airlines ticket counter on the second-floor concourse. Their suspicion was aroused by his visible reactions to their presence and to the “narcotics” dog, Le Dur, which accompanied them. After he checked a piece of luggage with a name tag reading “Mr. Martin Joyce,” it was agreed that two of the officers, Facchiano and D’Azevedo, would have Le Dur sniff the bag in the downstairs baggage area, while the third, McGee, continued to watch the defendant. When Facchiano and D’Azeve-do arrived at the baggage area, they secured the permission of the National supervisor to have the dog “examine” Goodley’s bag. His suitcase, along with four or five others, was moved “about a foot” from a baggage cart onto the floor directly below it. Le Dur then proceeded to “sniff” the outside of the bags; he reacted immediately and positively only to Goodley’s. At once, the bag was set aside, the defendant was brought from the concourse to the baggage area, and the officers repaired to a magistrate. Based upon an affidavit which recited these facts, together with an account of the past and established expertise of Le Dur in the olfactory discovery of narcotics and which noted also the false identification placed on Goodley’s suitcase, a circuit court judge issued a search warrant. The result of its execution reconfirmed, as we have seen, the accuracy of Le Dur’s nose.

The trial judge granted the motion to suppress on the stated grounds that “there was a lack of probable cause to seize the Defendant’s luggage [and] the action of the officers in removing the defendant’s luggage from the other general baggage to conduct the test constituted an unreasonable seizure.” Our reversal is necessarily based upon the determination that the officers and their dog did not intrude in any way upon Goodley’s “legitimate expectations of privacy,” and thus did not violate any right or interest protected by the constitution. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Indeed, as applied to each of the two police actions challenged in this ease — the replacement of the defendant’s bag to facilitate the sniff, and the sniff itself — this conclusion seems no less than self-evident.

1. It is obvious that a traveler who checks his luggage has no knowledge and, in fact, no real concern as to precisely where his bag may be located within the airline’s custody at any given time. It follows that the slight movement of Goodley.’s unopened bag from the cart to the floor— concerning which the term “de minimus” is a generous characterization — did not, even remotely, amount to a fourth amendment seizure, much less a “search” of the defendant, see State v. Oliver, 368 So.2d 1331 (Fla. 3d DCA 1979), so as to require the prior existence of probable cause. United States v. Novello, 519 F.2d 1078 (5th Cir. 1975); United States v. Fulero, 162 U.S.App.D.C. 206, 498 F.2d 748 (D.C. Cir. 1974); cf. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970); see generally Moylan, “The Threshold Question of the Application of the Fourth Amendment or the Doctrine of ‘So What?,”’ 80 So.Ill.L.J. 118 (1975).

2. The same conclusion applies to the action of Le Dur’s nose. One’s legitimate privacy interest in his personal luggage concerns its contents, not its exterior. See United States v. Chadwick, 433 U.S. 1, 14, 97 S.Ct. 2476, 2485, 53 L.Ed.2d 538, 550, n.8 (1977). Furthermore, by committing his bag to the custody of National Airlines, Goodley knowingly exposed that exterior to the public, including those whom National permitted to approach it. See United States v. Race, 529 F.2d 12 (1st Cir. 1976); United States v. Novello, supra; State v. Wolohan, 23 Wash.App. 813, 598 P.2d 421 (1979). The defendant could therefore have no constitutionally cognizable right to the inviolability of the aromatic molecules which surrounded his luggage as it stood on the floor of the National baggage area. Consequently, he has no constitutional complaint that Le Dur’s nostrils intruded into that airspace. In so holding, we follow the overwhelming weight of authority to the effect that a dog’s sniff is not a fourth amendment search. E. g., United States v. Venema, 563 F.2d 1003 (10th Cir. 1977); United States v. Race, supra; United States v. Bronstein, 521 F.2d 459 (2d Cir. 1975), cert. denied, 424 U.S. 918, 96 S.Ct. 1121, 47 L.Ed.2d 324 (1975); United States v. Fulero, 162 U.S.App.D.C. 206, 498 F.2d 748 (D.C. Cir. 1974) (contrary contention described as “frivolous”); State v. 1969 Volkswagen Bus, 120 Ariz. 365, 586 P.2d 210 (1978); People v. Campbell, 67 Ill.2d 308, 10 Ill.Dec. 340, 367 N.E.2d 949 (1977); State v. Wolohan, supra.

For these reasons, we hold, as another panel of this court recently did in Mata v. State, 380 So.2d 1157 (Fla. 3d DCA 1980), that the “probable cause” which admittedly underlay the search warrant was properly obtained. The order of suppression under review is therefore

Reversed.

      . The defendant does not dispute either the showing of Le Dur’s abilities nor the existence in the affidavit as a whole of “probable cause” to support the issuance of the warrant. This concession is well-justified. E.g., United States v. Venema, 563 F.2d 1003, 1007 (10th Cir. 1977); United States v. Meyer, 536 F.2d 963 (1st Cir. 1976); State v. Wolohan, 23 Wash. App. 813, 598 P.2d 421, 425 (1979) and cases cited.

      . The only extant decisions which have actually invalidated the results of a dog sniff on constitutional grounds are two California cases, People v. Evans, 65 Cal.App.3d 924, 134 Cal.Rptr. 436 (1977) and People v. Williams, 51 Cal.App.3d 346, 124 Cal.Rptr. 253 (1975). See also United States v. Solis, 393 F.Supp. 325 (C.D.Cal.1975), rev’d, United States v. Solis, 536 F.2d 880 (9th Cir. 1976). We find these opinions entirely unconvincing.

      . Alternatively, assuming arguendo that a fourth amendment “search” of some kind is-involved in a dog sniff, we hold that the one in this case was, under all the circumstances, reasonably undertaken. It is a recognized principle that, as the seriousness and degree of governmental activity declines, so do the indicia of criminal activity constitutionally required to sustain it. See Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); State v. Williams, 371 So.2d 1074 (Fla. 3d DCA 1979). Hence, while the bare suspicion engendered by Goodley’s furtive actions on the concourse was plainly insufficient to justify any more serious police action, see State v. Frost, 374 So.2d 593 (Fla. 3d DCA 1979), it was enough to support the trivial intrusion represented by Le Dur’s nasal activity in the vicinity of the defendant’s bag. See United States v. Solis, 536 F.2d 880 (9th Cir. 1976); State v. Elkins, 47 Ohio App.2d 307, 354 N.E.2d 716 (1976). At the least, Le Dur’s sniff, directed as it was only against Goodley’s bag, was surely not part of a general, exploratory search of the type which, while actually approved by the majority in the Wolohan case, supra, was the source of so much justified concern to the dissenter. See also United States v. Venema, supra; United States v. Meyer, 536 F.2d 963 (1st Cir. 1976); State v. Quatsling, 24 Ariz.App. 105, 536 P.2d 226 (1975), cert. denied, 424 U.S. 945, 96 S.Ct. 1416, 47 L.Ed.2d 352 (1975).

      . See note 1, supra.


author: PER CURIAM.

text:
    The STATE of Florida, Petitioner, v. Pedro Pablo MARTINEZ, Respondent.
    No. 79-1924.
    District Court of Appeal of Florida, Third District.
    March 18, 1980.
    Rehearing Denied April 15, 1980.
    Janet Reno, State’s Atty., and Kurt L. Marmar, Asst. State’s Atty., for petitioner.
    John H. Lipinski, Miami, for respondent.
    Before HENDRY and HUBBART, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

A petition for writ of certiorari filed by the state presents for review an order of the circuit court requiring the state to disclose the identity of a confidential informant, in a prosecution against respondent for certain violations of Chapter 893 of the Florida Statutes. In light of the record, briefs and argument, we hold that the challenged order represents a departure from the essential requirements of law and must be quashed.

The transcript of testimony given at the hearing on respondent’s motion to compel disclosure of the confidential informant contains the recitation of events prior to the arrest of Martinez. The police officer heading up the instant narcotics investigation testified that he received a telephone call from an informant with whom he had established a beneficial working relationship over four to five years; the informant told the officer that a certain named Cuban male who owned and operated a named business at a given address would be leaving his place of business at a specified time later that day and would drive to the residence of some Colombian subjects where he would receive a quantity of cocaine. The informant had given a full physical description of the person and the vehicle he would be driving. The police set up a surveillance pursuant to the information given by the informant, and each detail of the data given was thereafter corroborated by the police, and respondent was ultimately arrested (without warrant) while in possession of a kilogram of cocaine.

It has long been recognized in the federal courts and under the law of Florida that the state is not required to disclose the identity of a confidential informant who merely furnishes the probable cause basis for a search or an arrest. See, McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62, reh. denied, 386 U.S. 1042, 87 S.Ct. 1474, 18 L.Ed.2d 616 (1967); State v. Katz, 295 So.2d 356 (Fla. 4th DCA 1974); State v. Matney, 236 So.2d 166 (Fla. 1st DCA 1970); Pearson v. State, 190 So.2d 425 (Fla. 3d DCA 1966), cert. denied, 200 So.2d 814 (Fla.1967); Dasher v. State, 178 So.2d 61 (Fla. 3d DCA 1965); F.R.Cr.P. 3.220(c)(2).

Certiorari is granted and the order for disclosure of the identity of the informant is quashed.


text:
    Ivan ROMERO, Appellant, v. The STATE of Florida, Appellee.
    No. 79-809.
    District Court of Appeal of Florida, Third District.
    March 25, 1980.
    Rehearing Denied April 18, 1980.
    Henry Gonzalez, Thomas G. Murray, Miami, for appellant.
    Jim Smith, Atty. Gen., and Steven L. Bolotin, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. Skelton v. State, 349 So.2d 193 (Fla. 3d DCA 1977); Shea v. State, 167 So.2d 767 (Fla. 3d DCA 1974).


author: BERANEK, Judge.

text:
    Edward S. KAPLAN, Appellant, v. DADE FEDERAL SAVINGS AND LOAN ASSOCIATION OF MIAMI, a United States Corporation, Delmy Patricia Samour, et al., Appellees.
    No. 78-1618.
    District Court of Appeal of Florida, Fourth District.
    March 26, 1980.
    Rehearing Denied April 24, 1980.

      Walter Wolf Kaplan and Cecil T. Far-rington, Fort Lauderdale, for appellant.
    Robert C. Scott of Berryhill, Avery, Williams & Scott, Fort Lauderdale, and Harris & Sirkin, P.A., Miami, for appellee, Bank.
   BERANEK, Judge.

This is an appeal from an order entered by the Circuit Court vacating- a judicial sale of real property. We affirm. Appellee, Dade Federal Savings and Loan Association of Miami, obtained a final judgment of foreclosure in the amount of $34,472.13 against a condominium parcel. Pursuant to order the property was to be sold for cash to the highest bidder on a specified date. The sale was supervised by the Clerk of the Circuit Court for Broward County. In attendance at the sale was an individual representing appellee, Dade Federal Savings and Loan Association. Appellant was the eventual purchaser.

The subject property came up for sale and the Savings and Loan Association representative bid $100. At that point, appellant, who was present only as a casual observer, directed a question to the clerk’s representative. Appellant asked the clerk what the amount of the mortgage on the property was. The clerk responded to the question by asking the lender’s representative the amount of the mortgage. The lender’s representative attempted to answer this question but was not certain of her information regarding the mortgage indebtedness. She stated the amount of the mortgage to be $15,000 which was incorrect. Immediately thereafter appellant bid the sum of “$150” or “150.” Lender’s representative understood the bid to be $150,000. The property was then struck off to appellant for $150. Almost simultaneously lender’s representative announced that she thought the sale had been for $150,000.

In response to prompt objections regarding the confusion, the clerk simply told both parties to take the court file to a judge. Eventually, Dade Federal Savings and Loan Association filed an objection to the sale and a motion to set the sale aside. This matter was set before the Circuit Court which heard testimony from most of the individuals attending the sale. The successful bidder, Mr. Kaplan, who bought the property for $150, appeals the Court’s order setting aside the sale.

In Van Delinder v. Albion Realty & Mortgage, Inc., 287 So.2d 352 (Fla. 3d DCA 1974), the rule regarding such matters is stated as follows:

While the.general rule is that inadequacy of price standing alone is not a ground for setting aside a judicial sale, where the inadequacy is gross and is . shown to result from a mistake, accident, surprise, fraud, misconduct or irregularity on the part of either the purchaser or other person connected with the sale, with resulting injustice to the complaining party, the court will act to prevent the wrong result. Lawyers’ Co-operative Pub. Co. v. Bennett, 34 Fla. 302, 16 So. 185; City of Sanford v. Ashton, 131 Fla. 759, 179 So. 765; Eristavi-Tchitcherine v. Miami Beach Federal Savings & Loan Assn., 154 Fla. 100, 16 So.2d 730; Arlt v. Buchanan, Fla.1966, 190 So.2d 575, 577.

To the same effect is Moore v. Dade Glass and Mirror Co., 357 So.2d 221 (Fla. 3d DCA 1978).

Here the trial court heard evidence and made extensive factual findings. All elements necessary for setting aside a foreclosure sale were found to be present and we cannot fault the trial court in these factual finding^ which had a clear basis in the evidence. The sale price of $150 was shown to be grossly inadequate. We further hold that the finding of confusion, mistake and surprise in the sale procedures is well supported by the record. There may well have been fault on the part of the lender’s representative. The confusion was at least partially due to a question asked during the bidding by the successful bidder Kaplan. The confusion was further heightened and prompted by the Clerk’s action when instead of sirpply disregarding the question, the clerk turned to a person engaged in bidding and reasked the question of the bidder. The bidder did not know the answer but attempted to check her notes. The bidder gave an incorrect answer to a question which she should not have been required to answer while in the process of bidding. Her answer was given almost simultaneously with the misunderstood bid of “$150” or “150” by the opposing bidder. The combination of these circumstances, which were the fault of the successful bidder, the clerk and the unsuccessful bidder, were sufficient to render the sale subject to being set aside when coupled with the inadequacy of the sale price.

We therefore conclude that no error has been demonstrated and the court’s order setting aside the foreclosure sale is hereby affirmed. •

AFFIRMED.

DOWNEY, C. J., and LETTS, J., concur.


author: OTT, Judge.

text:
    STATE of Florida, Appellant, v. Randy Clayton GUNN, Appellee.
    No. 79-278.
    District Court of Appeal of Florida, Second District.
    March 26, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellant.
    No appearance for appellee.
   OTT, Judge.

Gunn was prosecuted for robbery and the jury acquitted him. During the trial, he testified that he had neither procured nor attempted to procure anyone else to commit the robbery. This testimony was in direct conflict with that of his alleged accomplice, Eaves, who previously had been tried separately and convicted of the crime.

The state thereafter filed an information charging Gunn with perjury, but on his motion the information was dismissed. The record is, silent as to the ground for the dismissal, but the motion was based upon the doctrine of collateral estoppel. The question, therefore, is whether Gunn’s testimony was material to an issue which was actually litigated in his robbery trial and which was essential to the verdict therein. United States v. Hernandez, 572 F.2d 218 (9th Cir. 1978).

While the doctrine of collateral es-toppel in criminal cases is said to be “embodied in the Fifth Amendment guarantee against double jeopardy”, Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469, 476 (1970), care must be taken not to obliterate the distinctions between those doctrines. In the present case, for example, the doctrine of double jeopardy would bar the state from prosecuting Gunn again for the crime of robbery, even though the first prosecution may have been predicated exclusively on evidence that he personally committed the crime, and the second might be predicated on proof that he hired someone to commit it. This is so because by statute (§ 777.011, Fla.Stat.) one who procures another to commit a crime is himself guilty of committing that crime. A final judgment has determined that Gunn did not commit the robbery and that judgment is res judicata, barring any attempt to reprosecute that same cause of action and relitigate any issue which was or could have been determined in the first action. Restatement of the Law, Judgments §§ 48, 61, 63 (1942).

Here, however, we are not concerned with double jeopardy. Gunn was not charged with robbery this time, but with perjury. That is an entirely different cause of action, and the question of whether he tried to procure someone to commit the robbery is not foreclosed unless the doctrine of collateral estoppel does so. As previously noted, that depends on whether the issue was actually litigated in his robbery trial. The answer to that question lies .in the record of that prosecution.

Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.”

Ashe v. Swenson, supra, 397 U.S. at 444, 90 S.Ct. at 1194, 25 L.Ed.2d at 475-76.

We have previously noted the paucity of the record before us. Unfortunately, it contains no answers to our questions concerning the robbery case. We do not know whether the state’s case was confined solely to a charge and proof that Gunn committed the robbery by direct participation in the activities at the scene of the crime, or whether an attempt was made to prove commission of the crime by procuring someone else to do it. We cannot tell whether Gunn was ever exposed to liability as a procuring principal by appropriate jury instructions. In short, the record before us does not reveal whether the verdict of acquittal in the robbery prosecution was a factual (as contrasted with a legal) determination that Gunn did not commit the crime by any manner or means, or only that he did not personally participate in the actual robbery.

Further, the record at bench contains no indication that the court below, in ruling on the motion to dismiss the perjury charge, had before it the information necessary to determine whether the state was collaterally estopped from proceeding. It is possible, of course, that the same judge who ruled on the motion had also presided at the robbery trial, and thus had intimate knowledge of what issues were resolved there. But as to that, too, the record is silent.

Accordingly, we reverse the order of dismissal and remand the case to the court below for further consideration of Gunn’s motion in the light of the principles stated herein.

GRIMES, C. J., and SCHEB, J., concur.


author: HOBSON, Acting Chief Judge.

text:
    J. A. MILES OIL COMPANY, INC., Petitioner, v. STATE of Florida DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. 79-785.
    District Court of Appeal of Florida, Second District.
    March 26, 1980.
    Peter W. Zinober and John P. McAdams of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P. A., Tampa, for petitioner.
    Alex D. Littlefield, Jr., Tallahassee, for respondent.
   HOBSON, Acting Chief Judge.

Petitioner J. A. Miles Oil Company, Inc. seeks review of a final agency order which assigned petitioner a higher experience rating and thus a higher unemployment compensation tax rate. Petitioner argues that it is not a “successor employer” within the contemplation of Section .443.08(3)(g)(1), Florida Statutes, and should not be assessed at the higher rate. We agree with petitioner’s argument and reverse the final agency order.

The following facts were specifically accepted by the special deputy in his report and recommended order and adopted in the final agency order.

Petitioner is a Shell Oil Company jobber that leases a number of service stations to various dealers. In 1963, petitioner erected a service station on real property owned by petitioner in Plant City. The service station has been dealer operated during most of the period from 1963 to the present time. In 1973, W. H. Horton, Sr. became the. dealer • at the station pursuant to an oral agreement with petitioner which gave Horton the right to operate and otherwise use the station, contingent upon payment of rent to petitioner. Horton was under no obligation to purchase supplies or other inventory from petitioner and frequently purchased these items from other sources. Horton’s employees were not employed by petitioner.

Horton failed to make the rent payments in accordance with the agreement and on September 1, 1976, petitioner informed him that he must make the payments or vacate the premises. Horton did not make the payments and was given thirty days notice to vacate. Horton issued two bad checks to petitioner and petitioner obtained a judgment against Horton and his wife for $9,700. On October 1,1976, Horton vacated the service station, taking all the current inventory with him, including his two trucks, and leaving only the permanent fixtures. All of Horton’s employees left the station as well. Petitioner immediately changed the name of the station from “Horton’s Shell Service” to “Park Street Shell.” No money changed hands between Horton and petitioner.

At that time, petitioner, unable to locate another dealer-operator, restocked the station and operated it. Petitioner transferred employees from its other stations to operate the station until a new dealer could be found. After one month, petitioner located another dealer and transferred its employees back to their former work locations. In the meantime, Horton opened a Citgo station in Plant City under the name “Horton’s Service.” He retained the same employees and the same telephone number that he had used at the Shell station.

At all times pertinent to this case, petitioner owned the service station and the real property on which it was located. Petitioner owned the gasoline in the tanks, the license to sell the gasoline, and, further, paid 'the property tax on the real estate and intangible tax on the permanent fixtures. The acting director relied chiefly on the case of Escambia Mid-Cty. Dev. Corp. v. State Dept. of Com., etc., 356 So.2d 855 (Fla. 1st DCA 1978), in reaching the conclusion that petitioner was a successor employer to Horton. The director’s discussion of Escambia stated:

I find even more interesting the court’s ultimate conclusion that despite whatever argument exists on what constitutes a transfer of business or what constitutes a continuation of employing enterprises, the fact is, as is present in the instant case, that the petitioner “got” the business of the predecessor. ■

The Escambia case dealt with a corporation which established a nursing home and leased it to another corporation which managed and operated the home. Due to various breaches and defaults, the managing corporation was directed by the owning corporation to vacate the premises. The owning corporation began operating the home, utilized the fixed assets on the premises, employed most of the employees who had been previously employed by the evicted corporation and made application to state and federal agencies to operate the home. The First District Court held that the owning corporation was a successor employer and could be assigned the experience rating of the predecessor employer for purposes of unemployment compensation taxes.

We note that the Third District Court in a recent opinion based on facts similar to the instant case, reversed the agency’s holding that the subsequent employer had acquired the former employer’s assets and was responsible for increased unemployment compensation rates. Browder v. State, Dept. of Labor & Employment, 375 So.2d 1141 (Fla. 3d DCA 1979). In that case, Browder operated a business on property he owned. He later sold the assets of his sole proprietorship to a corporation and leased to the corporation the real property on which the business was located, taking back a security agreement and chattel mortgage. The corporation became delinquent under both instruments and under threat of foreclosure, voluntarily surrendered the remaining assets covered by the security agreement to Browder. Browder attempted to find a buyer for the assets but was not successful. He restarted his former business as a sole proprietor. The Third District Court held that “[acquiring assets in lieu of a foreclosure sale or under threat of such does not make [Browder] subject to the former employer’s experience rating for unemployment compensation rates.” That court specifically noted the Escambia case, but declined to follow it, stating:

To require a subsequent entity, which continues a business, to be responsible for the prior employer’s unemployment compensation rating may be justified in an arm’s length voluntary transaction, wherein the purchaser can adjust the purchase price in accordance with the responsibility undertaken. Such an opportunity is not present when one is forced, involuntarily, to reacquire pledged assets.

375 So.2d at 1143.

We are of the opinion that the issue in the instant case may' be more fairly resolved under the reasoning of Browder. Petitioner’s operation of the service station was involuntarily undertaken in order to avoid financial losses after Horton’s eviction and until a new dealer could be located. Under the factual circumstances of this case, we hold that the agency was incorrect in requiring petitioner to assume Horton’s experience rating record. We therefore grant the petition for review, set aside the final agency order, and remand this cause to the agency for further proceedings not inconsistent with this opinion.

PETITION GRANTED.

BOARDMAN and DANAHY, JJ., concur.


author: RYDER, Judge.

text:
    Robert E. LANG, d/b/a Bob Lang Real Estate, Appellant, v. Clyde CORBITT and Alpha S. Corbitt, Appellees.
    No. 79-1924.
    District Court of Appeal of Florida, Second District.
    March 26, 1980.
    Stephen D. Carle of Hodges & Carle, Zephyrhills, for appellant.
    Alfred J. Ivie, Jr., Dade City, for appel-lees.
   RYDER, Judge.

Robert E. Lang appeals from an order dismissing with prejudice his amended complaint.

The Corbitts, appellees, entered into a written contract with Lang which gave Lang:

a period of six months from this date (and thereafter until this agreement is revoked by ten day’s written notice to you) . . .

to sell certain property owned by the Cor-bitts. The contract provided that if a purchaser was found for the property at any time during the contract period, whether by Lang, the Corbitts or anyone else, the Cor-bitts were obligated to pay Lang a commission equal to 10% of the sales price.

By written interlineation the parties extended the definite term of the contract for another three months to July 3, 1978. Appellant specifically discussed with appellees that after July 3, 1978, the contract would continue in force until they gave him written notice as required by the contract. No such notice was ever given.

After July 3, 1978, Lang, with the knowledge of the Corbitts, continued to advertise the property and show it to prospective purchasers. From July 3, 1978 until a purchaser was found, Lang’s sign was displayed on the property, and at no time did the Corbitts indicate to Lang that the sign should be removed or that the implied claim of the sign, that Lang had the listing on the property, was incorrect.

The Corbitts notified Lang on October 24, 1978 that the property had been sold and that they were taking down his sign. The property was transferred by deed dated April 12, 1979. The state documentary stamps on the deed indicate that the sales price was $78,000.00.

After the Corbitts refused to pay a commission to Lang, appellant filed a complaint for damages in contract to collect $7,800.00 as commission. In response, the Corbitts filed a motion to dismiss. By order dated September 24, 1979, the court found that:

1. The written provision of the contract extending same to July 3, 1978, prevails over the printed portion thereof to the contrary.
2. The court having found that the contract between the parties is unambiguous on its face, the court construes the contract as having terminated on July 3, 1978.

and therefore, granted the Corbitts’ motion to dismiss.

We find that the contract is ambiguous. The handwritten portion does prevail over any inconsistent printed portion, McDonald v. Connell, 158 So.2d 780 (Fla. 2d DCA 1963), but the question of what printed portion does the handwritten portion prevail over remains. The contract, as modified, is susceptible of being interpreted as terminating on July 3, 1978, the Corbitts’ view, or being interpreted as terminating after ten days written notice, which notice may be filed after July 3,1978, Lang’s view. The court should resolve contract ambiguities by considering the intent of the parties, as evidenced by their subsequent acts, and the circumstances existing at the time of' entering into the contract or the modification. Webster v. Clark, 34 Fla. 637, 16 So. 601 (1894) and Trio Sales, Inc. v. Crossroads Shopping Center, Inc., 324 So.2d 118 (Fla. 2d DCA 1975).

Consequently, the trial court’s order granting the Corbitts’ motion to dismiss is error. We REVERSE and REMAND.

GRIMES, C. J., and SCHEB, J., concur.


text:
    STATE of Florida ex rel. William GANDERT, III, Appellant, v. William T. ROBERTS, Sheriff of Pinellas County, Appellee.
    No. 79-2106.
    District Court of Appeal of Florida, Second District.
    March 26, 1980.

      Jack 0. Johnson, Public Defender and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

William Gandert appeals from the denial of his petition for writ of habeas corpus.

Gandert was arrested in Tarpon Springs as an alleged fugitive from Michigan on a charge of making, drawing or uttering three insufficient fund checks. Michigan sought his extradition under the provisions of Chapter 941, Florida Statutes, the Uniform Interstate Extradition Act. Attached to the governor of Michigan’s written demand are copies of a Michigan complaint against appellant for the alleged offenses and a warrant for his arrest, both of which are certified to be authentic by the Michigan governor. Also accompanying the demand are an application for requisition and an affidavit sworn by the prosecuting attorney in Sanilac County, Michigan, neither of which is authenticated by the governor of Michigan.

Appellant argues that because the demand from the governor of Michigan incorporates by reference only two items accompanying the demand, i. e., the complaint and warrant, neither of which alleges appellant’s presence in Michigan at the time of the alleged offenses, appellant’s petition for writ of habeas corpus should have been granted. We agree and reverse.

The provisions of Section 941.03, Florida Statutes (1979), require that the written demand from the governor of the demanding state must allege that the ac-. cused was present in the demanding state at the time of the alleged crime. The demand by the governor of Michigan does not contain such an allegation, and thus is fatally defective under the holding in Hattaway v. Culbreath, 57 So.2d 661, 663 (Fla.1952).

The State argues that because appellant’s presence in Michigan- at the time of the commission of the alleged offense may be ascertained from the application for requisition attached to the Michigan governor’s demand, the demand satisfies the requirements of Section 941.03. We would agree if the attached application for requisition, which alleges the accused’s presence, had been certified by the governor of Michigan to be authentic. See Blackburn v. Munson, 155 So.2d 730 (Fla. 2d DCA 1963); Pecnik v. Blackburn, 132 So.2d 604 (Fla. 2d DCA 1961). However, such is not the case. Extradition papers not certified as authentic by the executive authority of the demanding state are illegal and void. Palmer v. State, 312 So.2d 476 (Fla. 4th DCA 1975).

Accordingly, we REVERSE and REMAND for further proceedings consistent with this opinion.

BOARDMAN, Acting C. J., and' OTT, J., concur.


author: OTT, Acting Chief Judge.

text:
    FLORIDA POWER CORPORATION, Petitioner, v. Gerald A. LEWIS, Comptroller, and Harry L. Coe, Jr., Executive Director, Department of Revenue, Respondents.
    No. 79-665.
    District Court of Appeal of Florida, Second District.
    March 26, 1980.
    G. Kristin Delano and Thomas D. Graves of Harris, Barrett & Dew, St. Petersburg, for petitioner.
    Jim Smith, Atty. Gen., and E. Wilson Crump, II, Asst. Atty. Gen., Tallahassee, for respondents.
   OTT, Acting Chief Judge.

Petitioner claimed a refund of the .state income taxes it paid for 1973. After administrative proceedings, the hearing offi-' cer recommended allowance of a portion of petitioner’s claim and the scheduling of a further hearing to determine the precise amount of the refund. The Department rejected that recommendation and denied the entire claim on the ground that it would not tolerate such a bifurcated hearing. We disagree and vacate the order with instructions to the Department to follow the recommendations of the hearing officer.

Petitioner’s various theories as to why it was entitled to refund of the entire $620,-000 it paid the State of Florida as income tax for 1973 ultimately came down to an assertion that taxes had been mistakenly paid on income which had been realized before Florida’s income tax law became effective. Therefore, it was not subject to taxation. S.R.G. Corp. v. Department of Revenue, 365 So.2d 687 (Fla.1978).

We think the hearing officer had ample basis to reject petitioner’s claims based upon its accelerated depreciation and capital outlay expense practices. Neither determines nor affects the date on which income is earned or received, which we believe to be the primary consideration for determining whether or not the income was taxable.

Petitioner clearly established that a portion of the taxable income shown on its original return for 1973 was attributable to gains realized when petitioner purchased, at discount, its own bonds prior to maturity. Since such purchases occurred prior to the effective date of Florida’s corporate income tax, the hearing officer determined that those gains were not taxable.

Actually, the Department does not dispute the foregoing conclusions or determinations of the hearing officer or that petitioner actually paid too much tax for 1973. Rather, the Department’s sole point is a procedural matter. It says that petitioner was only allowed one opportunity to prove both entitlement and amount. Since it failed to prove the exact refund due there is no “second time around.” We concede that in some instances, notably damage claims, the failure of a plaintiff to prove both entitlement to and amount of damages will compel entry of an adverse judgment. McCall v. Sherbill, 68 So.2d 362 (Fla.1953). We find nothing objectionable, however, in the procedure followed by the hearing officer in this case.

The hearing officer was faced with a claim for the refund of all tax paid, based on multiple allegations of events and practices that created overlapping and intertwining consequences in the taxability of petitioner’s reported earnings. It seems to us that he understandably devoted himself first to the task of sorting out the merit or entitlement, if any, of the various claims, leaving until later the question of the amount of any refund found to be due. It was an abuse of discretion for the Department to abruptly terminate the proceedings by an order interposing ex post facto ground rules and declaring petitioner in default thereof.

The order of the Department is vacated and this matter is remanded for continuation of the procedure established by the hearing officer.

RYDER and DANAHY, JJ., concur.


text:
    George A. HUNT, Jr., Appellant, v. FIRST NATIONAL BANK OF TAMPA, as Trustee, Appellee.
    No. 78-1768.
    District Court of Appeal of Florida, Second District.
    March 28, 1980.

      Michael A. Smith of Goza, Hall, Peacock & Peters, Clearwater, for appellant.
    Peter J. Winders, James D.’ Wing and J. Brent Walker of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appel-lee.
   OTT, Judge.

Appellant brought this action for a declaration of rights under a lease of his unimproved tract of land to appellee as trustee for the principals in the Hash N’ Karry food chain. The trial court summarily declared the rights of the parties and, after an evi-dentiary hearing concerning damages, entered a money judgment in favor of appellant. The court erred in resolving factual issues by summary judgment, and we therefore reverse both the declaratory and the coercive provisions of the judgment.

The lease itself, for ninety-nine years at a rental of $20,000 per year, is unremarkable. All the problems stem from an addendum which was executed simultaneously with the lease. It provided that rent was not to accrue until such time as lessee completed its “planned construction” on the demised premises of a small shopping center complementing the adjacent Kaish N’ Karry supermarket.

Appellant filed his complaint some forty-four months after the lease was signed. Appellee had not so much as commenced, let alone completed, the construction of the shopping center. The only use of the land had been by the truckers supplying a Kash N’ Karry supermarket located on appellee’s adjacent property. A small area opposite the loading dock at the rear of the market had been blacktopped for that purpose, and a short length of shell road had been laid down to connect the blacktop area to the public street. Appellee had paid no rent, except for the $40,000 paid upon execution of the lease, which consisted of the first year’s rent and a $20,000 deposit to secure future rent.

The court below declared that there is no ambiguity in the addendum, and. that its legal effect is that (1) no rent becomes due and payable under the lease unless and until appellee completes construction of the shopping center as originally planned or subsequently modified, (2) appellee is not obligated to construct the planned improvements, and (3) appellee’s use of the premises was' “outside the terms of the lease”, entitling appellant to the reasonable value of the use actually made. The court then took evidence on the latter issue and em tered judgment against appellee for $100 per month, a total of $4,800.

While we agree that the addendum does not obligate appellee to construct the shopping center, or any other improvements, we think the document is ambiguous. It provides no answer to two questions: (1) with respect to the moratorium on rent until completion of the planned construction, what happens if the construction is never completed; (2) what happens if, instead of commencing and completing construction of the shopping center, appel-lee uses the premises for other purposes? These are latent ambiguities, requiring extrinsic evidence bearing upon the intent of the parties and thus precluding summary judgment.

If a contract is- clear, complete and unambiguous, there is no need for judicial construction. Hamilton Construction Co. v. Board of Public Instruction, 65 So.2d 729 (Fla.1953). But even the most cautious drafting, and the most exhaustive imagination, rarely covers every possible contingency. If a contract fails to specify the rights or duties of the parties under certain conditions or in certain situations, then the occurrence of such condition or situation reveals an insufficiency in the contract not apparent from the face of the document. This insufficiency is called a latent ambiguity, and although (as previously noted) the Florida rule is that courts will not construe patent ambiguity, they are frequently called upon to determine what the parties would have included in their contract had they anticipated an occurrence which they in fact overlooked. Morton v. Morton, 307 So.3d 835 (Fla. 3d DCA 1975), cert. denied, 324 So.2d 90 (Fla.1975). In doing so, .the function of the court is to ascertain, insofar as possible, the intent of the parties. Bal Harbour Shops, Inc. v. Greenleaf & Crosby Co., 274 So.2d 13 (Fla. 3d DCA 1973). Extrinsic evidence is not only admissible on that issue, but is frequently required where the instrument itself does not provide sufficient insight into intent. Morton v. Morton, supra ; 11 Fla.Jur.2d Contracts §§ 107, 114, 117 (1979).

There are certain presumptions or guidelines that assist the court in arriving at its conclusion as to what result the parties intended under the unanticipated circumstances. A reasonable interpretation is preferred to one which is unreasonable, Bouden v. Walker, 266 So.2d 353, 354 (Fla. 2d DCA 1972), and an intérpretation leading to an absurd conclusion must be abandoned for one more consistent with reason and probability. Paddock v. Bay Concrete Industries, Inc., 154 So.2d 313, 316 (Fla. 2d DCA 1963). Where one interpretation would lead to an agreement which is fair and equitable, while another interpretation would result in an unfair and inequitable agreement, the former must be selected. Foster v. Jones, 349 So.2d 795, 799 (Fla. 2d DCA 1977). Finally, whenever possible a contract should receive such construction as will uphold it rather than render it invalid. Foster v. Jones, supra.

For the guidance of the court below in resolving the issues which we have noted, we add the following observations regarding the merits of this case.

First, there is sound authority for appellant’s assertion that the moratorium on rent continued for only a reasonable time after the execution of the lease. We find significant relevance in the reasoning and language of an early case, Whiting v. Gray, 27 Fla. 482, 8 So. 726 (189Í), where the defendant had contracted to sell lumber to the plaintiff deliverable at a specified number of board feet per day commencing on a certain date “or as soon thereafter as [the plaintiff’s] vessel can be ready.” 27 Fla. at 483, 8 So. at 726. Holding that the contract should be construed as requiring the plaintiff to have his vessel at dockside within a reasonable time after the stated date, the Florida Supreme Court reasoned:

We do not think it reasonable to hold that the parties meant by the terms used . that the defendant was to be bound to deliver the lumber whenever the plaintiff might charter a vessel, however long it might be before he could in fact do so; or, in other words, that his obligation would continue indefinitely, until the plaintiff succeeded in chartering a vessel.

27 Fla. at 487-488, 8 So. at 727. See also Patrick v. Kirkland, 53 Fla. 768, 43 So. 969 (1907); Doolittle v. Fruehauf Corp., 332 So.2d 107 (Fla. 1st DCA 1976); Tyner v. Woodruff, 206 So.2d 684 (Fla. 4th DCA 1968).

It is for the trial court to determine from the evidence, of course, whether the parties intended that the construction was to be completed by a definite date. The existence of any such intent or agreement seems rather doubtful, and even appellee denies (indeed, predicates its position on the absence of) any such agreement on this appeal. Consistent with that position, appel-lee maintained in the trial court that although it had no exact schedule it had anticipated that construction would commence within “a reasonable time” after the lease was signed and be completed three to twelve months thereafter. Naturally, the trial court will have to determine what would have been a reasonable period after execution of the lease for the completion of construction. The court should then declare that rent commenced as of that date.

There are two additional grounds for rejecting appellee’s argument that no rent will ever be due and payable unless and until it completes construction of the shopping center. The net effect of this ruling is that appellant’s property is tied up for ninety-nine years. Rent will not be payable unless appellee decides to commence construction and unless and until such construction is completed. If construction is never completed, so that rent never starts accruing, at the termination of the lease appellee undoubtedly would demand refund of the $20,000 deposit and probably would even be entitled to a refund of the $20,000 it paid as advance rent. This presents an unconscionable situation, which in itself is sufficient to invalidate an agreement. Point East One Condominium Corp. v. Point East Developers, Inc., 348 So.2d 32, 36 (Fla. 3d DCA 1977). Moreover, any such arrangement would be invalid because there would be no mutuality of obligation. Appellant would be deprived of the use of the property but appellee would not be obliged to pay rent. No contract can bind one party and not the other. Orbit Construction Co. v. Trail Development Corp., 198 So.2d 341, 343 (Fla. 2d DCA 1967).

The second area meriting discussion here concerns appellee’s novel theory that it can use the property and pay only nominal charges for doing so if the “planned construction” is never completed. Of course, most of the problems in this area will be obviated by the determination of the date on which the agreed rental began to accrue. However, we note for whatever pertinence it may have that appellee bargained for and obtained a lease entitling it to use the premises for whatever lawful purpose it desired. There is absolutely no basis in fact for an assertion that any lawful use appel-lee made of the property was “outside the lease”. The only question would be whether such use, if made before a reasonable time for completing the construction had expired, activated the accrual of full rent or only some reasonable increment thereof. This latent ambiguity, as we have already noted, would require extrinsic evidence concerning the intent of the parties.

One further observation regarding the aspect of the case just discussed; if the trial court should conclude that appellee’s use of the property began while the rent moratorium was still in effect, and did not itself trigger the accrual of full rent, we are constrained to note that the present record contains no support whatsoever for the finding that the reasonable value of such use was only $100 per month. Since a trial of all the issues must be held, we are confident that the noted error will not occur again.

The judgment is reversed in its entirety and the case is remanded to the court below for trial.

BOARDMAN, Acting C. J., and RYDER, J., concur.

      . The parties' spent the bulk of their time, both in the trial court and here, arguing whether the terms “accrue” and “planned construction” are ambiguous. They obviously are not. Both are common, easy to understand terms with unmistakable meanings. Even if they were ambiguous, it would be a patent ambiguity. Florida courts do not attempt to construe patent ambiguity because it would require, in effect, the rewriting of a contract with respect to a matter the parties obviously had in mind when they drew the agreement. Landis v. Mears, 329 So.2d 323 (Fla. 2d DCA 1976).

      . We reject appellee’s contention that this appeal must be dismissed because appellant accepted the money awarded him for “use outside the lease”. There are two exceptions to the “acceptance of benefits” rule, both applicable here. First, where the relief denied is separate and severable from the relief granted, the rule does not apply. Brown v. Epstein, 208 So.2d 836 (Fla. 4th DCA 1968). The general rule also does not apply where appellant is entitled in any event to at least the amount received. Hartley v. Hartley, 134 So.2d 281 (Fla. 2d DCA 1961).

      . In short, it isn’t what the parties should have done that invites and sanctions judicial iriter-vention, it’s what they would have done had they thought to do it.

      . We find no support in the record for appel-lee’s contention that this advance payment was for an option tying up appellant’s property for 99 years.


text:
    Ronnie J. PACK, Appellant, v. STATE of Florida, Appellee.
    No. 79-632.
    District Court of Appeal of Florida, Second District.
    March 28, 1980.
    Jack 0. Johnson, Public Defender, and Judith L. James, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Ronnie James Pack appeals his conviction for robbery with a firearm, contending that the circumstantial evidence relied upon by the State was insufficient to establish the offense. We agree and revérse.

On October 25, 1978, appellant and his brother drove to a drug store in Clearwater, Florida. While appellant waited in the truck, his brother entered the drug store and robbed it. Testimony was presented that appellant’s brother left the drug store at a casual pace, much as any other customer might have. Appellant and his brother then drove away at a normal speed. • Police officers, responding to a radio broadcast describing appellant’s truck, spotted appellant and his brother and signaled them to pull over. Appellant’s truck stopped momentarily and then sped off, fleeing from the police. The police gave chase until the truck became disabled. Appellant and his brother were both arrested and charged by information with the armed robbery of the drug store.

The uncontradicted testimony established that appellant was not the actual perpetrator of the robbery. Accordingly, he can only be convicted as a principal in the first degree as an aider and abettor. § 777.011, Florida Statutes (1977). In order to sustain a conviction under this theory it is necessary that the State prove that a crime was committed, that the defendant aided in the commission of the crime, and that the defendant had the specific intent to participate in the crime. Beasley v. State, 360 So.2d 1275 (Fla. 4th DCA 1978). The intent required has been defined as the intent to participate in the conduct of the perpetrator of the crime. Rosson v. State, 319 So.2d 64 (Fla. 2d DCA 1975).

Intent is not often subject to direct proof and must therefore usually be established by circumstantial evidence. Where the evidence of intent is purely circumstantial, however, the proof must not only be consistent with guilt, but it must also be inconsistent with any reasonable hypothesis of innocence. Rosson ; Lockett v. State, 262 So.2d 253 (Fla. 4th DCA 1972). The only evidence of appellant’s intent to participate in his brother’s robbery of the drug store was his presence at the scene and the subsequent flight from the police. Under the circumstances of this case, this evidence was insufficient to refute other reasonable hypotheses of innocence.

It is well settled that mere presence at the scene, without more, will not establish the intent to participate in the crime. Chaudoin v. State, 362 So.2d 398 (Fla. 2d DCA 1978). That the appellant left the drug store with his brother in the truck at an ordinary speed, under circumstances which would not give rise to any suspicion on his part that any illegal conduct had occurred, and subsequently fled from the police is not enough to establish that appellant had the intent to aid and abet his brother in the robbery of the drug store. See J. H. v. State, 370 So.2d 1219 (Fla. 3d DCA 1979). The evidence presented does not refute the reasonable hypothesis that appellant accompanied his brother to the drug store, and knew nothing of the robbery at the time of their departure. This possible version of what took place is supported by the fact that a customer entered the drug store during the robbery and the appellant, who was waiting outside, did nothing to try to warn his brother of the customer’s approach. Had there been something suspicious about appellant’s departure from the drug store, we might have been inclined to reach a different result; but on the facts before us we have to agree that the circumstantial evidence did not refute all reasonable hypotheses of innocence. Although the flight from the police is strong evidence that appellant might have been an accessory after the fact, it does not show the specific intent to aid and abet. And as the brother of the principal, appellant is excluded by law from prosecution as an accessory after the fact. § 777.03, Florida Statutes (1977).

Because the circumstantial evidence relied upon by the State to prove the specific intent of the appellant failed to exclude every reasonable hypothesis of innocence, appellant’s conviction must be reversed.

OTT, J., concurs.

BOARDMAN, J., dissents.


author: HENSLEY, ROBERT E., Associate Judge.

text:
    TRAVELERS INDEMNITY COMPANY, Appellant, v. James V. CAUSEY and Angela P. Causey, Appellees.
    No. 79-1162.
    District Court of Appeal of Florida, Second District.
    March 28, 1980.

      Dennis R. Ferguson, of Holland &, Knight, Lakeland, for appellant.
    Craig M. Spanjers, of Stanley, Wines, Williams & Smith, P. A., Auburndale, for appellees.
   HENSLEY, ROBERT E., Associate Judge.

Appellee James V. Causey was injured in an automobile accident. He and his wife sued the tortfeasor who was insured for $20,000. They also filed a claim with their own insurance carrier, the appellant, under their uninsured motorist coverage of $45,-000. Appellees recovered from the tort-feasor, by settlement, $20,000. Upon arbitration with appellant, a $50,000 award was entered and appellant paid appellees $25,-000. Appellees then filed this suit, demanding from appellant reimbursement for attorney fees of $6,666.66 and costs of $354.93 incurred in pursuing their claim against the tortfeasor. The lower court, on the authority of Aetna Casualty and Surety Company v. Ilmonen, 360 So.2d 1271 (Fla.3d DCA, 1978), awarded judgment for $3,595.93 against the appellant for such fees and costs. Appellant appeals therefrom and ap-pellees cross-appeal the lower court’s failure to award the total fees and costs actually incurred in pursuing the third party claim, and its failure to award attorney fees in this cause.

Since the decision of the lower court, the District Court of Appeal of Florida, First District, in the case of Hall v. Liberty Mutual Ins. Co., 376 So.2d 1183 (Fla. 1st DCA, 1979), has come to a decision contrary to the holding in Aetna Casualty and Surety Company v. Ilmonen, supra, in reference to the awarding of attorney fees and costs in pursuing third party claims.

We choose to follow the decision in Hall v. Liberty Mutual Ins. Co., supra. Had the tortfeasor had insurance coverage in the sum of $45,000, and, had appellees recovered $45,000 in suing the tortfeasor, they would not have recovered their attorney fees, in addition thereto, from the tort-feasor. They have no greater right under their uninsured motorist coverage.

This holding makes the questions raised on cross-appeal moot.

Accordingly, the judgment is reversed and the case remanded for entry of a judgment for the appellant.

HOBSON, Acting C. J., and OTT, J., concur.


text:
    George B. OVERLY, Appellant, v. STATE of Florida, Appellee.
    No. KK-489/T1-6.
    District Court of Appeal of Florida, Fifth District.
    April 9, 1980.

      George B. Overly, in pro per.
    Gordon G. Oldham, Jr., State’s Atty., Leesburg, for appellee.
   PER CURIAM.

The defendant’s appeal of the denial by the trial court of his 3.850 motion to vacate • is affirmed because the motion is legally insufficient on its face. Potts v. State, 242 So.2d 729 (Fla.2d DCA 1971); Johnson v. State, 181 So.2d 667 (Fla. 1st DCA 1966).

CROSS, ORFINGER and COBB, JJ., concur.


text:
    Earl LOCKETT, Appellant, v. STATE of Florida, Appellee.
    No. 77-2350/T4-18.
    District Court of Appeal of Florida, Fifth District.
    April 9, 1980.
    Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Chief, Appellate Division, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.-
   PER CURIAM.

This is an appeal from a judgment and sentence entered by the Circuit Court of Brevard County, Florida. The Public Defender has filed an Anders motion and brief, requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On December 7, 1979, the Fifth District Court of Appeal gave the appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed counsel’s brief and the record herein and no reversible error appears. The motion of the Public Defender to withdraw is hereby granted, and the judgment and sentence is hereby

AFFIRMED.

' DAUKSCH, C. J., and ORFINGER and COBB, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: DIXON, J., DENNIS, J.,

text:
    Application of Carole Shelby Carnes TUCKER for Permission to take the Louisiana Bar Examination and, contingent on passing the examination, to be certified for admission to the Louisiana State Bar Association.
    No. 66745.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   DIXON, J.,

is of the opinion this applicant should be permitted to take the bar examination. Her qualifications are apparently better than any applicant who has petitioned this court to take the bar exam in the last 9 years. We have never denied any applicant with similar qualifications permission to take the examination. We have held that the rule must be changed, and when it is changed, this applicant will be qualified. See Cynthia Caroline Dawn Marie Anderson for Admission to the Louisiana Bar, 377 So.2d 1185 (1980).

CALOGERO, J., would grant permission to take the bar exam.

DENNIS, J.,

would grant applicant permission to take the bar examination and continue this court’s former practice of allowing persons found qualified by this court to be admitted to practice on a ease by case basis until our rules are changed to provide for a fair and systematic method for evaluating graduates of law schools in other nations.


author: WATSON, Justice, DIXON, Chief Justice, BLANCHE, Justice

text:
    In re Application of Bayani Virata FAYLONA for Admission to the Louisiana Bar.
    No. 61475.
    Supreme Court of Louisiana.
    March 13, 1980.
    Concurring Opinion March 14, 1980.
    Concurring and Dissenting Opinion March 17, 1980.
   ORDER

IT IS ORDERED that Bayani Virata Faylona be admitted to the practice of law in the State of Louisiana.

WATSON, J., concurs and assigns reasons.

DIXON, C. J., assigns concurring reasons.

BLANCHE, J., dissents with written reasons.

MARCUS, J., dissented.

WATSON, Justice,

concurring:

I am concurring for the following reasons:

(1) The applicant was authorized by this Court to take the bar examination prior to my becoming an Associate Justice.
(2) The applicant passed.
(3) The Commissioner appointed by this Court found that applicant’s legal education at the University of Manila was substantially equal to that of ABA approved law schools.
(4) The applicant holds, in addition to a law degree from an institution in the Republic of the Philippines (the legal system of which I have personal knowledge and high esteem), a Master of Civil Law from Tulane University.
(5) This application is distinguishable in several particulars from that of Tucker.
(6) I voted to approve the Anderson application where there was prior authorization to take the bar examination and where the facts were similar to, but- probably not as strong as, the present application.
(7) In all fairness, I think the Faylona application should be approved.

Therefore, I respectfully concur.

DIXON, Chief Justice,

assigns concurring reasons.

This case illustrates a recurring problem not provided for by our rules. A lawyer admitted to practice in a foreign country, educated there, and apparently well qualified, desires to seek admission to the Louisiana Bar and take the bar examination. He may be a resident alien or a citizen — natural or naturalized. His application to take the bar examination is denied because he has not graduated from a law school approved by the American Bar Association.

’ One of my brothers, concurring, takes the position, as I once did, that the literal application of Article 14, § 7(B)(d) would permit that applicant to take the bar examination because he has obtained a graduate law degree from Tulane. That section states that only “a graduate of a law school that is approved by the American Bar Association” may take the bar examination. Since this applicant has a master’s degree from Tulane University Law School, he meets the requirements as read literally. Nevertheless, it was not the intention of the rule to permit every person who is able to obtain a graduate degree from a law school (approved by the ABA) to take the bar examination. The rule was obviously intended to provide a standard for legal training. Sometimes programs leading to a graduate degree from an ABA approved law school are open to candidates who do not have an “undergraduate” degree in a law school.

We have been urged to interpret our rules and the articles of incorporation of the Louisiana State Bar Association as if they were statutory material. They are not. When a well qualified applicant is denied the right to take the bar examination, because of a literal interpretation of our rules, we should set about, either to make exceptions in the rare cases, or change the rules in problem areas which are likely to occur. Our rules should not be interpreted as a shield for injustice.

The rules of this court (Rule 14) were not designed to prevent qualified applicants from taking the bar examination and gaining admission to practice law in Louisiana. Their object was to prevent unqualified persons from taking the bar examination.

When the application of our rules results in an injustice, this court has' recognized that the injustice should be prevented, and the rules changed. In Application of Cynthia Caroline Dawn Marie Anderson for Admission to the Louisiana Bar, 377 So.2d 1185, 1187 (La.1980), we stated:

“. . .We recognize that the practice of granting. exceptions can leave a rule without effect. To avoid this result, we suggest that the proper rule-making committee of the Louisiana State Bar Association study whether the rule should be changed and thereafter present the results thereof to this court for our consideration.”

As the rule is written, no graduate of a foreign law school would be eligible to take the bar examination and practice in Louisiana, because the American Bar Association does not investigate, approve or disapprove foreign law schools. We are told that many other states in recent years, although operating under a rule for admission which requires graduation from an ABA approved law school, have accommodated an unexpected influx of well qualified foreign applicants to take the bar examination.

This court governs the admission, as well as the discipline, of lawyers:

“. . . The power to prescribe ultimately the qualifications' for admission to the bar belongs to the judicial department of the government of the state. . ” Ex parte Steckler, 179 La. 410, 421, 154 So. 41, 44 (1934).

The bar association itself was formed under the inherent powers of the Supreme Court. Act 54 of 1940 read as follows:

“That the Supreme Court is hereby memorialized to exercise its inherent powers by providing for the organization and regulation-of the Louisiana State Bar Association; by providing rules and regulations concerning admissions to the bar, the conduct of the Association and its members ...”

The rules of this court, of course, can be •changed by this court, but the best and most responsive way to provide for the admission of new lawyers to the bar has long been thought to be through the organized bar. Article 14 of the articles of incorporation of the Louisiana State Bar Association is the result, and it should be amended as provided in Article 17.

Until the articles are amended, or until this court enacts a rule, we are relegated, in order to prevent rank injustice, to the expediency of examining the qualifications of every applicant who seeks relief from the committee’s denial.

BLANCHE, Justice

(dissenting):

I respectfully dissent from permitting relator to be admitted to the Louisiana State Bar Association. This is clearly contrary to the rule set forth in art. 14, § 7(B)(d) of the Articles of Incorporation of the Louisiana State Bar Association, which requires that the relator be a graduate of a law school that is approved by the American Bar Association. This Court has neither the time nor expertise to make a fair determination of educational equivalents, and that matter is best left to American Bar Association approved law schools, who may give a credit of up to two-thirds of the total requirements for the first professional degree.

      . The rules of some states permit graduates of law schools which lack accreditation to sit for the bar examination after completion of postgraduate studies at an accredited law school. For example, the District of Columbia rule requires twenty-four additional credit hours in a law school approved by the ABA, plus the approval of the committee on admissions. The rule in Hawaii is similar, but it applies only to those admitted to practice in another jurisdic- • tion, and additional instruction in bar examination subjects is required. Connecticut requires a Master of Laws degree at an accredited law school, following a bachelor of laws or equivalent degree at an unaccredited school. In Pennsylvania, foreign attorneys must acquire twenty-four credit hours in an accredited law school, sixteen of these in mandatory subjects; but a recent amendment to the rule provides that examiners may admit any member of a foreign bar in good standing. In Florida, graduates of four Cuban law schools may take the bar examination after completing several semesters of study at Florida schools.
      Under the rules of other states, a graduate of an unaccredited law school may take the bar examination without further study in an accredited institution, if the unaccredited school meets certain state standards for approval. In some states, e. g., Tennessee, Iowa, Illinois, Maine, Mississippi, the opportunity to prove reasonable equivalence of legal education appears to be available to graduates of all foreign law schools. Alaska limits such proof to graduates of schools teaching the principles of English common law. In Delaware, Oxford and Cambridge receive automatic approval; in California, some Canadian law schools are prima facie deemed accredited, for this purpose.


text:
    STATE of Louisiana ex rel. Douglas Ray LEVERETT v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 65830.
    Supreme Court of Louisiana.
    Oct. 19, 1979.
   In re Douglas Ray Levere'tt, applying for writ of mandamus. Parish of St. Mary. No. 83,819.

Granted. The hearing previously ordered shall be held forthwith.


text:
    STATE of Louisiana ex rel. Harry O. CRAMER v. Frank C. BLACKBURN, Warden, et al.
    No. 66070.
    Supreme Court of Louisiana.
    January 28, 1980.
   In re Harry 0. Cramer, applying for writ of mandamus. Orleans' Parish. No. 259-221.

Denied; the district court has acted, and the application is moot.


text:
    Eva Landry AGUILLARD v. Marcie J. AGUILLARD.
    No. 66682.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Eva Landry Aguillard, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 380 So.2d 104.

Writ denied.

DENNIS, J., would grant the writ.


text:
    Allen GAUTHIER, Milburn Baudin, Willie Jackson, Cecil E. Sayes, Carl Dufour, Victor Armand, Stenett J. Bordelon, Kenneth Bordelon, Sam Hewlett, Daniel Lachney, Dyrel Dauzat, Orney Dauzat, Marvin B. Gremillion, Wiley V. Lemoine, Webster Guillot, E. J. Rabalais, Armold Firmin and Edsel G. Rabalais v. BOGARD SEED CO.
    No. 66725.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
   In re Allen Gauthier et al., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Avoyelles. No. 7234.

Denied.

DIXON, CALOGERO and DENNIS, JJ., would grant the writ.


text:
    WHITNEY NATIONAL BANK OF NEW ORLEANS v. Michael C. GUILBAULT and Lilly Streckfus Guilbault.
    No. 67046.
    Supreme Court of Louisiana.
    March 11, 1980.
   In re Whitney National Bank of New Orleans, applying for supervisory writs. Parish of Orleans. No. 79-16989.

Writ granted.

WATSON, J., recused.


text:
    STATE of Louisiana v. Roy JENKINS and Edmond Burkhalter.
    No. 66990.
    Supreme Court of Louisiana.
    March 13, 1980.
   In re State of Louisiana,' applying for writ of certiorari. Parish of Orleans. No. 271-378.

Denied. No abuse of trial judge’s discretion.


text:
    STATE of Louisiana v. Errol KELLY.
    No. 67057.
    Supreme Court of Louisiana.
    March 13, 1980.
   In re Errol Kelly, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Orleans. No. 274-463.

Granted. An evidentiary hearing is ordered forthwith to determine whether relator had notice of the court session at which he was obligated to appear; the trial judge shall permit the defense to produce witnesses to testify.


text:
    STATE of Louisiana v. Calvin Charles THOMPSON.
    No. 66439.
    Supreme Court of Louisiana.
    March 13, 1980.
   In re Calvin Charles Thompson, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Orleans. No. 259-144.

Writ granted.


text:
    STATE of Louisiana v. Donald Ray LEE.
    No. 67067.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Donald Ray Lee, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Richland. No. 31,118.

Writ denied.


text:
    STATE of Louisiana v. Florence Yvonne McDONALD.
    No. 67074.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Florence Yvonne McDonald, applying for writs of certiorari, prohibition and mandamus to the 1st Judicial District Court of Caddo Parish. No. 109,636.

Writ granted. It is ordered that bond be reduced to $25,000.00.


text:
    STATE of Louisiana v. Reginald ROBICHEAUX.
    No. 67033.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Reginald Robicheaux, applying for writs of certiorari, mandamus and prohibition to the Criminal District Court for the Parish of Orleans. No. 272-944.

Writ denied.


text:
    STATE of Louisiana v. Elmo Patrick SONNIER.
    No. 67043.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Elmo Patrick Sonnier applying for supervisory writs. Parish of Iberia. No. 27,383.

Writ denied.

delaHOUSSAYE, J., recused.


text:
    STATE of Louisiana v. Ernest HARRIS et al.
    No. 67051.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re City of New Orleans applying for writs of certiorari, prohibition or mandamus to the Orleans Parish Criminal District Court. No. 255-401.

Denied.

MARCUS and BLANCHE, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. Clarence VARISTE v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66507.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Clarence Variste, applying for habe-as corpus and certiorari. Parish of Orleans. Number unknown.

Denied.

DENNIS, J., dissents and would grant a hearing.


text:
    STATE of Louisiana ex rel. John T. JOHNSON v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66525.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re John T. Johnson applying for remedial writs. Parish of Lincoln. Number unknown.

Writ denied.


text:
    STATE of Louisiana v. Helen WILSON and Willie Wilson.
    No. 66543.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Helen and Willie Wilson, applying for writs of review certiorari and stay order. Parish of East Baton Rouge. No. 3-79-591.

Denied. Defendant has an adequate remedy by appeal.


text:
    STATE of Louisiana v. Jerome GREEN.
    No. 66616.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Jerome Green, applying for remedial writs. Parish of Orleans. Number unknown.

Denied.


text:
    STATE of Louisiana ex rel. Clinton Clifford HOWARD, Jr. v. Charles C. FOTI, Jr., Sheriff, Parish of Orleans.
    No. 65985.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Clinton Clifford Howard, Jr., applying for writ of habeas corpus, and/or motion for out-of-time-appeal. Orleans Parish. No. 232-663.

Denied.


text:
    STATE of Louisiana ex rel. Billy TAYLOR v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66748.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Billy Taylor, applying for.writ of habeas corpus. Parish of St. Tammany. No. 50-754.

Denied.


text:
    STATE of Louisiana ex rel. Roosevelt McCORMICK v. ST. CHARLES PARISH SHERIFF'S OFFICE.
    No. 66775.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Roosevelt McCormick, applying for writ of habeas corpus. Parish of St. Charles. No. 78-264.

Writ denied. Appeal pending.


text:
    STATE of Louisiana ex rel. Percy L. TATE v. Honorable Frank A. MARULLO, Jr., Judge, Criminal District Court and Clerk of Court.
    No. 66778.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Percy L. Tate, applying for writ of mandamus. Orleans Parish. Number unknown.

Writ denied as moot.


text:
    STATE of Louisiana ex rel. Herbert JOSEPH v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66820.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Herbert Joseph, applying for writ of mandamus. Parish of Lafayette. No. 36,597.

Writ denied. Moot. District court has acted.


text:
    STATE of Louisiana ex rel. Joseph L. STEVENSON v. 14TH JUDICIAL DISTRICT COURT.
    No. 66823.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Joseph L. Stevenson, applying for writ of habeas corpus. Parish of Calcasieu. Nos. 3059-78 and 3060-78.

Writ denied.


text:
    Harry HIRSCH, III v. Kathleen Ann SANDER, wife of Harry Hirsch, III.
    No. 66838.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Kathleen Ann Sander, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. No. 10538.

Denied.