text:
    Charles Willis MALONE, Jr., Appellant, v. STATE of Florida, Appellee.
    Nos. 54024, 54025.
    Supreme Court of Florida.
    Sept. 25, 1980.
    Rehearing Denied Dec. 8, 1980.
    Jack 0. Johnson, Public Defender, and Wayne Chalu and Samuel Robert Mandelb-aum, Asst. Public Defenders, Tampa, for appellant.
    Jim Smith, Atty. Gen., and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   ALDERMAN, Justice.

Charles Willis Malone, Jr. appeals his convictions for the first-degree murders of Manuel Tanner and Jessee Woodward and his sentences of death. He also appeals his conviction and sentence for robbery. We reverse.

On July 14, 1977, Jessee Woodward appeared at the residence in St. Petersburg, Florida, where Malone and his friend and co-perpetrator, Freddie Lee Morris, were staying. Three days earlier, Malone and Morris had attempted to commit a robbery and kidnapping. They suspected that Woodward was a detective investigating those crimes, but, in fact, he was not. At gunpoint, they searched Woodward and took two dollars and a wallet from him. Then, using Woodward’s automobile, they forced him to accompany them on a forty-mile trip to a remote, deserted location on the outskirts of Tampa. During this trip, Woodward pleaded for his life. When they arrived, Malone took Woodward away from the automobile into a marshy, wooded area and shot him twice in the back of his head. Then, after visiting some friends in Tampa, Malone and Morris drove around in Woodward’s automobile looking for a place to rob. They finally selected a Tampa service station and, at gunpoint, robbed the attendant, Manuel Tanner, taking fifty to sixty dollars and two hundred to three hundred packs of cigarettes. During the robbery, Malone beat Tanner to death with a blunt, pipe-like instrument. As a result of being struck on the head approximately ten times, Tanner sustained severe skull fractures, numerous fractures on the right side of his scalp and on the base of his skull, and ten lacerations on his scalp. The police later found Woodward’s car parked in an apartment area in Tampa. From several items of physical evidence found in the automobile, including Malone’s fingerprints, the police were able to connect Malone with Woodward’s automobile and with the service station robbery.

Malone was convicted for the premeditated, first-degree murders of lessee Woodward and Manuel Tanner and the robbery of the service station. The jury recommended death sentences. The trial court sentenced Malone to death for each of the murders and to life imprisonment for the robbery.

Malone argues that his convictions should be reversed and the cause remanded for a new trial because the trial court erred in denying his motion to suppress certain incriminating statements made by him to one of his cellmates who, unknown to Malone, was an informer for the State. He concedes that these statements were not coerced and were voluntary, but argues that they may not be used against him because they were deliberately elicited by a State agent in the absence of his counsel and without his being informed of his Miranda rights by the informant.

The informer, who was also a prisoner, first met Malone in the Pinellas County jail in September, 1977. Two and one-half weeks after meeting Malone, the informer met Detective Hazzard who asked him to assist in finding the body of Jessee Woodward by just listening to whatever Malone said about the case and reporting anything he heard about where the body was located. The informer testified that he did not ask Malone where the body was or in any way interrogate him, but he did suggest a plan to the police by which he might be able to obtain information from Malone as to where Woodward’s body was hidden. The plan was to have the informer transferred to another county jail and then to have him come back and visit Malone in civilian clothes. Prior to being transferred, the informer went back to his cell and told Malone that he was being released and assured Malone that he knew a black female attorney whom he would try to retain for Malone. Under the misimpression that the informer would be able to assist him on the outside, Malone then told the informer that he had killed Woodward, that there were-several things he wanted the informer to do for him, and that he would tell the informer about them when he returned on visitation day. Some time later, dressed in civilian clothes, the informer returned to the jail, as requested by Malone. Anxious to ensure that he would not be linked with Woodward’s body, Malone gave the informer directions to where the body was located and instructed the informer to dispose of the remains. From the directions given by Malone, the police were unable to find the body. Pursuant to police directions, the informer returned to the jail and told Malone that he was unable to locate the body from the previous directions. Malone then gave more detailed directions, but the police were still unable to find the body. The codefendant, Freddie Morris, ultimately led the police to the body, which was located in the area described by Malone in his directions to the informer.

In light of the recent pronouncement of the Supreme Court of the United States in United States v. Henry, -U.S. -, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), we hold that Malone’s incriminating statements made to the State informant while in custody in the Pinellas County jail should have been suppressed because these statements made in the absence of counsel, with no prior waiver of counsel, were directly elicited by the State’s stratagem deliberately designed to elicit an incriminating statement from Malone. Therefore, the introduction of these statements violated Malone’s sixth amendment right to the assistance of counsel. Detective Carpenter testified that on several occasions he had advised Malone of his Miranda rights and had attempted to interview Malone regarding the Tanner and Woodward murders but that Malone had refused to be interviewed. It was thereafter that the ruse of the cellmate being released was concocted and employed to derive information from Malone as to the whereabouts of Woodward’s body.

In United States v. Henry, the Supreme Court held that Henry’s statements to a paid police informant-cellmate were improperly admitted at trial because the government violated Henry’s sixth amendment right to counsel by intentionally creating a situation likely to induce Henry to make incriminating statements without assistance of counsel. Federal agents had instructed the informant to be alert to any statements made by the federal prisoners regarding charges against them but had specifically directed him not to question Henry or the other prisoners about their charges. Distinguishing the situation before it from one where the “listening post” is an inanimate listening device having no capability of leading the conversation into a particular subject or prompting a reply and from the situation where an informant is placed in close proximity but makes no effort to stimulate conversations about the crime charged, the Supreme Court held that the government agent in Henry was not a passive listener but had had conversations with Henry while Henry was in jail. The Court determined that Henry’s incriminating statements were the product of these conversations and explained that, from the fact that the informer was paid by the government on a contingent fee basis for incriminating information, it could be assumed that he would take some affirmative steps to secure this information. Where the accused is in the company of a fellow cellmate who unbeknownst to him is acting as an informer, the Court declared, the conversation stimulated may elicit information which the accused would not intentionally reveal to a government agent. The Court reiterated its previous pronouncement made in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), that to have any effect, the sixth amendment must apply to indirect surreptitious interrogations. It further explained that since Henry was unaware that he was talking to a government agent, he could not be held to have waived his right to counsel. Finally, it emphasized the relevancy to its holding of the fact that at the time Henry was engaged in conversation by the government agent, he was incarcerated, and the Court stated:

While the concern in Miranda was limited to custodial police interrogation, the mere fact of custody imposes pressures on the accused; confinement may bring into play subtle influences that will make him particularly susceptible to the ploys of undercover government agents. The Court of Appeals determined that on this record the incriminating conversations between Henry and Nichols were facilitated by Nichols’ conduct and apparent status as a person sharing a common plight. That Nichols had managed to gain the confidence of Henry, as the Court of Appeals determined, is confirmed by Henry’s request that Nichols assist him in his escape plans when Nichols was released from confinement.

100 S.Ct. at 2188.

In the present case, the subterfuge employed by the informer and condoned and participated in by the State precipitated the incriminating statements made by Malone. During the at least month-long period of time preceding the informer-cellmate’s “release,” Malone had not told the informer that he had committed the murder, nor had he ever mentioned the location of Woodward’s body. Not until after being informed by the cellmate of the cellmate’s impending release, did Malone confess to him that he had killed Woodward and disclose the whereabouts of the victim’s body. Because of Malone’s confidence which the informant had managed to gain and because Malone felt that the informer could assist him on the outside, Malone confided in the informer and enlisted, he thought, the informer’s assistance in disposing of the body. Although it does not definitively appear in the record that the informer gained any benefit from the State for the disclosures he was able to obtain from Malone, it was indirect surreptitious State action which elicited Malone’s incriminating statements without assistance of counsel and therefore in violation of Malone’s sixth amendment right.

Reviewing the record in light of the error of admitting these incriminating statements into evidence, we are unable to conclude beyond a reasonable doubt that the informer’s testimony did not influence the jury. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Since we conclude that this error is reversible, we find it unnecessary to resolve Malone’s remaining challenges to his convictions and sentences.

Accordingly, the judgments are reversed, and this cause is remanded for a new trial.

It is so ordered.

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

ADKINS, J., dissents.


source: Caselaw Access Project

author: SUNDBERG, Chief Justice.

license: Public Domain

text:
    Phillip R. GRANT, Petitioner, v. STATE of Florida, Respondent.
    No. 52886.
    Supreme Court of Florida.
    Nov. 13, 1980.

      Richard L. Jorandby, Public Defender, and Jerry L. Schwarz and James K. Green, Asst. Public Defenders, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., and Glenn H. Mitchell, Asst. Atty. Gen., West Palm Beach, for respondent.
   SUNDBERG, Chief Justice.

This is a petition for writ of certiorari to review a per curiam decision of the District Court of Appeal, Fourth District, reported at 352 So.2d 184. Conflict has been demonstrated with Gordon v. State, 145 So.2d 896 (Fla. 2d DCA 1962), which holds that an information charging a violation of section 805.01, Florida Statutes (1973), must specifically allege an intent to secretly confine. We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution (1972).

On April 18,1975, petitioner was charged by information with false imprisonment, sexual battery and robbery. The ease proceeded to trial on October 7, 1975, where petitioner was found guilty of all charges. He was sentenced to consecutive terms of imprisonment for the three offenses, totaling ninety-six years, two hundred ninety-five days.

At 1:00 a. m. on April 2, 1975, Nancy Dawn Campbell approached her car to go home after a long day’s work. After Nancy placed the keys in the ignition, the car door flew open and a young man stormed into the driver’s seat. A struggle ensued during which Ms. Campbell was hit in the face and threatened with death. The assailant finally forced Nancy into the back seat and ordered her to put a pillowcase over her head. He then drove off, holding the victim down by her wrists.

Their journey ended in a secluded orange grove, where Ms. Campbell was raped and robbed. During the sexual assault, Nancy removed the pillowcase in order to resist, thus enabling her to get a close and sustained look at her attacker. Later, Ms. Campbell was raped again by a man whom the original assailant picked up after leaving the orange grove. Both assailants fled on foot shortly thereafter.

Five or six days later, Ms. Campbell went to the Orange County Sheriff’s Department and viewed a photographic lineup consisting of five pictures of possible suspects. She was unable to make a positive identification, but she did pick out two pictures which looked familiar. One of those two pictures was that of petitioner. On April 9, 1975, Ms. Campbell went to the Orange County jail to view a physical lineup. Shortly before the lineup, she encountered another rape victim with a photo array who was awaiting her turn to view a physical lineup. Ms. Campbell looked at these photos but made no comment about them either to the other girl or to the police. Ms. Campbell testified that she thinks, but is not positive, that these were the same photographs she saw previously.

During the physical lineup Ms. Campbell positively identified petitioner as her first assailant. She also asked to have a closer look at the suspects so that she might be able to spot a tiny scar and “dot” which the rapist had on his right cheek. But because of the peculiar manner in which the lineup room was lighted, a closer examination failed to reveal the blemishes.

On the first day of trial a hearing was held outside the presence of the jury on petitioner’s motion to suppress Ms. Campbell’s out-of-court identification. Over defense counsel’s strenuous objection, petitioner was brought before Ms. Campbell, at least in part for the purpose of giving Ms. Campbell the opportunity to locate the scar and dot which she had earlier failed to find. Ms. Campbell reaffirmed that petitioner was her attacker and stated that she now saw the scar, but not the dot. Later during the trial, Ms. Campbell once again identified petitioner and finally recognized the dot.

Petitioner challenges his convictions on four grounds, two of which merit only summary discussion. He first contests the seizure of tangible evidence pursuant to a search warrant allegedly based upon the unsworn statement of a police officer. The trial judge found to the contrary that the search warrant was grounded on a verified affidavit, and we believe the record supports his finding. Petitioner’s second point, that the trial court erred in permitting the state to comment on petitioner’s failure to testify, was waived by counsel’s failure to move contemporaneously for a mistrial. Clark v. State, 363 So.2d 331 (Fla.1978).

Of somewhat greater significance is petitioner’s contention that evidence of Ms. Campbell’s out-of-court identifications should have been suppressed. Petitioner argues that the lineup procedures employed were unnecessarily suggestive and that the identifications derived therefrom were unreliable. For the following reasons, we do not agree.

The primary evil to be avoided in the introduction of an out-of-court identification is a very substantial likelihood of misidentification. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). “Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous.” Neil v. Biggers, 409 U.S. at 198, 93 S.Ct. at 382. But as the analysis has evolved, a suggestive confrontation procedure, by itself, is not enough to require exclusion of the out-of-court identification; the confrontation evidence will be admissible if, despite its suggestive aspects, the out-of-court identification possesses certain features of reliability. Manson v. Brathwaite, 432 U.S. 98, 110, 97 S.Ct. 2243, 2250, 53 L.Ed.2d 140 (1977). Hence the appropriate test is twofold: (1) did the police employ an unnecessarily suggestive procedure in obtaining an out-of-court identification; (2) if so, considering all the circumstances, did the suggestive procedure give rise to a substantial likelihood of irreparable misidentification. Id. The factors to be considered in evaluating the likelihood of misidentification include

the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Neil v. Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382.

Recurring to the case before us, we need address only the first step in the above analysis, for we do not believe that the police employed unnecessarily suggestive procedures in obtaining Ms. Campbell’s out-of-court identifications. First of all, the police were unaware that Ms. Campbell saw a photo array immediately before the physical lineup, and in any event there is no evidence to show that viewing the photos in any way jaundiced the reliability of her identification at the lineup. Nor is there evidence to show that the physical lineup itself was conducted in an improper or suggestive manner. Last, the showup during the hearing on the motion to suppress, while not a technique to be encouraged, was conducted for the legitimate purpose of giving Ms. Campbell the opportunity to spot the facial blemishes which she had been unable to locate previously.

Petitioner’s final point on appeal is well taken. The trial judge erred in denying petitioner’s motion to dismiss the information with respect to the charge of false imprisonment. A long and consistent line of Florida cases holds that an information charging false imprisonment must specifically allege an intent to secretly confine. State v. Register, 152 Fla. 239, 9 So.2d 804 (1942); Holroyd v. State, 127 Fla. 152, 172 So. 700 (1937); Ross v. State, 15 Fla. 55 (1875); Gordon v. State, 145 So.2d 896 (Fla. 2d DCA 1962). Therefore, petitioner’s conviction of false imprisonment must be reversed.

Accordingly, the decision of the District Court of Appeal, Fourth District, is approved insofar as it affirms petitioner’s convictions of sexual battery and robbery. The decision is disapproved insofar as it affirms the conviction of false imprisonment. Our reversal of the false imprisonment conviction is without prejudice to seek a new information. This cause is remanded to the District Court of Appeal, Fourth District, with directions to remand to the trial court for proceedings not inconsistent with this opinion.

It is so ordered.

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

      . Effective October 1, 1975, Florida’s false imprisonment statute was substantially revised. § 787.02, Fla.Stat. (1975). The continuing utility of the above cases for crimes occurring after October 1,1975, is thus very much in doubt. See Brunelle v. State, 360 So.2d 70 (Fla.1978).

      . Inasmuch as our reversal on the false imprisonment count is not based on insufficiency of the evidence, we perceive no double jeopardy problems in a retrial after the filing of a new information. See Burks v. United States, 437 U.S. 1, 14-15, 98 S.Ct. 2141, 2148-2149, 57 L.Ed.2d 1 (1978).


author: ALDERMAN, Justice. ADKINS, J.,

text:
    Donald Alan SHAPIRO, Appellant, v. STATE of Florida, Appellee.
    No. 54097.
    Supreme Court of Florida.
    Nov. 13, 1980.

      Bernard S. Yedlin, Miami, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., Miami, for appellee.
   ALDERMAN, Justice.

We have for review by direct appeal Donald Shapiro’s conviction for possession of cocaine. Because the trial court upheld the constitutional validity of sections 893.13 and 893.03(2)(a)(4), Florida Statutes (1977), part of the “Florida Comprehensive Drug Abuse Prevention and Control Act,” we have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution (1972).

In the trial court, by motion to dismiss, Shapiro challenged the constitutionality of these statutory sections, and, by motion to suppress, he challenged the admissibility of 6.5 pounds of cocaine seized by an airport security detective from his suitcase at the security boarding area of the airport. Both motions were denied, and he then pled nolo contendere expressly reserving the right to appeal the constitutional and the suppression questions. We hold that the challenged statutes are constitutional and that the trial court’s denial of the motion to suppress was proper, and we therefore affirm Shapiro’s conviction and sentence.

Shapiro’s constitutional attack on sections 893.13 and 893.03(2)(a)(4) is totally without merit and warrants only brief discussion. The inclusion of cocaine within the statutorily prohibited class defined in section 893.13 is not arbitrary and unreasonable, does not violate Shapiro’s right to equal protection of the laws, does not render the statute overbroad, does not invade Shapiro’s right of privacy, and does not violate his right to be free from cruel and unusual punishment. Cf. Hamilton v. State, 366 So.2d 8 (Fla.1978), wherein we upheld the inclusion of marijuana within section 893.13 against similar constitutional challenges.

Shapiro’s challenge to the trial court’s order denying his motion to suppress is also without merit but warrants more extended discussion. First, we note that the trial court’s conclusions of fact come to us clothed with a presumption of correctness, and, in testing the accuracy of these conclusions, we must interpret the evidence and all reasonable deductions and inferences which may be drawn therefrom in the light most favorable to the trial judge’s conclusions. State v. Nova, 361 So.2d 411 (Fla.1978). In that light, the record of the motion to suppress hearing reveals the following pertinent facts. Having arrived at the Miami International Airport and having had purchased for him an airline ticket, Shapiro and two other men proceeded to the coin lockers at the airport terminal. Therein, they placed a bag. Shapiro then, in a rather suspicious manner which attracted the attention of a detective of the Dade County Public Safety Department assigned to the airport, handed the key to one of the two other men. Because of several other unusual actions by Shapiro observed by the detective for a period of at least fifteen minutes, the detective approached Shapiro and asked him for identification. Appearing extremely nervous, Shapiro produced a driver’s license in his own name and produced an airline ticket in another name. When questioned as to the discrepancy, he informed the detective that the airline had made a mistake. Fearing that Shapiro had placed an explosive device in the locker, the detective asked Shapiro whether he could search the locker. Shapiro told him that if the detective could locate the key to the locker, he could search it. The key, however, was not located. The detective also requested that Shapiro permit him to search the suitcase which Shapiro intended to carry onto the plane, but Shapiro refused. Although he was still suspicious, the detective told Shapiro that he was free to leave.

The detective then followed Shapiro down the concourse to the security boarding area of the airport. When Shapiro’s suitcase was passed through the x-ray monitor, the guard at the security check station noticed something that looked like scissors. The detective, who was also watching the monitor, observed a gray mass which was approximately a foot to a foot and a half in length and eight inches in width. He requested that the bag be passed through again and that the guards take a closer look because he had a genuine fear that there was an explosive device in the suitcase. Viewing the monitor, the detective could distinguish that the mass was not clothing and that it could be plastic explosives. When the suitcase was opened by Shapiro so that the security guard could check the scissors, the detective saw a bulge in a pants leg which he thought was a bomb. He, therefore, removed the pants from the suitcase. The search, however, rather than revealing the presence of a bomb, turned up the 6.5 pounds of cocaine.

The trial court, having considered the totality of the circumstances surrounding the search and seizure of the cocaine, concluded that the detective had acted reasonably.

Shapiro contends that the search and seizure violated his fourth amendment rights and that the cocaine should have been suppressed because the detective did not have sufficient probable cause to search his luggage. For several reasons, we hold that probable cause was not a prerequisite to this search in the security area of the airport, conducted for .the limited purpose of discovering weapons, explosives, or other devices which could have been utilized to hijack an airplane.

In order for Shapiro to claim that his fourth amendment rights were violated, he must first establish that he had a reasonable expectation of privacy to be free from this particular intrusion by the detective. United States v. Salvucci, - U.S. -, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). A reasonable expectation of privacy under a given set of circumstances depends not only upon one’s actual subjective expectation of privacy but also upon whether society is prepared to recognize this expectation as reasonable. Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Here, the defendant clearly failed to demonstrate that he had a reasonable expectation of privacy to be free from the particular intrusion involved in this case-a search for what the detective thought was a bomb. Shapiro testified that since 1971, he had boarded airplanes at least twenty times and that he was aware that there is a checkpoint at every airport where carry-on baggage must be submitted for inspection. He further testified that he had seen baggage opened at the security stations and that he was fully aware that his could be opened. He knew that for his protection and for the protection of other air passengers, searches were conducted to prevent prospective hijackers from boarding airplanes. By his own testimony, he established that he had no subjective reasonable expectation that his baggage would not be searched.

Additionally, we conclude that even if Shapiro had some subjective expectation of privacy, society is not prepared to recognize such expectation as reasonable. At this point in time when airplane hijacking is at a crisis level, such an expectation, to be free from the limited intrusion brought about by the screening process utilized in the boarding area of the airports, is not justifiable under the circumstances. One who enters the boarding area of the airport knows or should know that he is subject to being searched for weapons or other devices which could be used for hijacking. Notices posted in front of boarding areas inform prospective air passengers that all are subject to anti-hijacking searches. These searches are not directed against individuals but rather are a part of a general screening process to avoid the carrying of weapons or explosive devices onto an aircraft.

Since Shapiro did not demonstrate that he had a reasonable expectation of privacy, the fourth amendment is not implicated, and probable cause was not requisite to justify the search.

Alternatively, assuming that Shapiro’s fourth amendment rights were implicated in this search, we find that the present search conducted for the limited purpose of preventing an airplane hijacking was proper under the fourth amendment. Two separate concepts justify this finding.

One of the exceptions to the fourth amendment requirement of a probable cause basis for a search is a search conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 98 S.Ct. 2041, 36 L.Ed.2d 854 (1973). This consent must be free and unconstrained, and the question of voluntariness is a question of fact to be determined from the totality of the circumstances. See Norman v. State, 379 So.2d 643 (Fla.1980). Analyzing in depth the subject of consent searches, the Supreme Court of the United States in Schneckloth determined that while knowledge of the right to refuse consent is a factor to be taken into account, the government need not establish such knowledge as an indispensable requisite to effective consent. The Court refused to extend the requirement of a knowing and intelligent waiver to the constitutional guarantee against unreasonable searches and seizures since, it explained, the protections of the fourth amendment have nothing to do with promoting the ascertainment of truth at a criminal trial. 412 U.S. at 241-42, 93 S.Ct. at 2055. See also Interest of B. L. J., 336 So.2d 132 (Fla. 1st DCA 1976).

Looking to the totality of the circumstances in the present case, we find that Shapiro voluntarily consented to the search. As previously stated, he was fully aware that upon entering the security boarding area of the airport, he was subject to a security search for weapons or other devices which could be employed to hijack an airliner. He also testified that he knew he did not have to go through the checkpoint and did not have to board the plane, or that he did not have to carry this suitcase onto the plane. He willingly chose to do so and thereby consented to the search of his person and baggage for the limited purpose of discovering weapons, explosives, or other devices which could be utilized to hijack an airplane. The fact that drugs instead of weapons were found, however, does not require their suppression since the search was proper. See Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); United States v. Skipwith, 482 F.2d 1272 (5th Cir. 1973).

Alternatively, even in the absence of consent, this limited security boarding area search would not have violated Shapiro’s fourth amendment rights. The fourth amendment provides that the people are entitled to be secure from unreasonable searches and seizures. The specific content and incidents of the fourth amendment guarantee are shaped by the context in which it is asserted. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). To assess the reasonableness of security checks at airport boarding areas, we must balance the governmental interest justifying the governmental intrusion against the invasion which occurs as a result of the search. See Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).

As a result of serious problems caused by airplane hijackings, the government developed screening procedures to detect potential hijackers prior to their boarding the airplane. The governmental interest in these screening procedures is to prevent the carrying of weapons or explosives aboard an aircraft and thereby to prevent jeopardy to hundreds of lives and millions of dollars of property at the hands of a lunatic, extortionist, political terrorist, or political refugee. The intrusion resulting from these procedures is minimal compared to the monumental governmental interest involved. Tragic experience has taught us that in order to protect the prospective victims of violence, the hijacker must be discovered on the ground and before he boards the airplane. There is a very limited period of time in which the authorities can act to detect a possible hijacker. Security searches in the boarding area are the least intrusive possible because they are aimed at only those boarding the airplane and only those who could pose imminent danger to the air passengers, crew, and aircraft. Furthermore, the intrusion is minor because no stigma attaches when a person is searched at a known designated airport search point and because the person subject to the search voluntarily enters the search area and can avoid the search by not entering the boarding area. See United States v. Skipwith. Cf. United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976).

Courts have generally held that airport security measures, such as the search in the present case, instituted to detect a prospective hijacker, are reasonable and constitutionally justified as a limited and relatively insignificant intrusion of privacy viewed against the grave necessity to protect an aircraft and its passengers and crew. See United States v. Edwards, 498 F.2d 496 (2d Cir. 1974); United States v. Cyzewski, 484 F.2d 509, 512 (5th Cir. 1973), cert. dismissed, Cyzewski v. United States, 415 U.S. 902, 94 S.Ct. 936, 39 L.Ed.2d 459 (1974); United States v. Moreno, 475 F.2d 44 (5th Cir. 1973), cert. dismissed, Moreno v. United States, 414 U.S. 840, 94 S.Ct. 94, 38 L.Ed.2d 76 (1973).

In United States v. Skipwith, the United States Circuit Court of Appeals, Fifth Circuit, held that the nonprobable cause search of Skipwith, who had presented himself for boarding at the Eastern Air Lines boarding gate at the Tampa International Airport, was lawful and that the contraband uncovered by the search was properly admitted into evidence. Initially, the Court pointed out that Skipwith knew or should have known that he was subject to being searched after presenting himself in the boarding area and explained:

His only reason for being there had to be to board the aircraft. Because of the widespread publicity given to the government’s efforts to cope with the piracy of aircraft, it was general knowledge that citizens boarding planes were subject to special scrutiny and to weapon searches.... [T]he officer did not go to Skipwith and stop and search him at a point where such a procedure was extraordinary or unexpected. Rather, Skip-with came to the specific part of the airport where he knew or should have known all citizens were subject to being searched.

482 F.2d at 1274. Employing a test of reasonableness in upholding the search of Skipwith, the Fifth Circuit emphasized that “reasonableness” requires courts to weigh more than the necessity of the search in terms of possible harm to the public. Courts must also take into account the likelihood that the search procedure will be efficacious in averting the potential harm. It stated that balanced against public necessity and efficacy of the search are the degree and nature of intrusion into the privacy of the person and effects of the citizens which the search entails. Weighing these three factors determinative of reasonableness, the Fifth Circuit acknowledged the necessity to ensure that the potential harms of air piracy are foiled and found that the airport boarding area search procedures have every indicia of being the most efficacious possible. Although recognizing that the intrusion may be inconvenient and annoying, the Fifth Circuit held that this particular type of search was less offensive to the searched person than similar searches in other contexts and that the circumstances under which these searches were conducted made abuses much less likely to occur. The court explained:

Unlike searches conducted on dark and lonely streets at night where often the officer and the subject are the only witnesses, these searches are made under supervision and not far from the scrutiny of the traveling public. Moreover, the airlines, which have their representatives present, have a definite and substantial interest in assuring that their passengers are not unnecessarily harassed. The officers conducting the search under these circumstances are much more likely to be solicitous of the Fourth Amendment rights of the traveling public than in more isolated, unsupervised surroundings.

482 F.2d at 1276.

The Fifth Circuit rejected Skipwith’s argument that even if a weapon discovered during his search could have been introduced into evidence, the cocaine seized should have been excluded since the search was not and could not properly have been conducted for the purpose of discovering illicit drugs and stated:

The strictures of the Fourth Amendment protect the citizen from unwarranted and unreasonable intrusion by the government on his person or into his effects. The rule excluding the admission of illegally obtained evidence was designed to effectuate this purpose by removing the principal incentive to conduct illegal searches. The rule does not exist because the evidence is not probative, or to chastise errant law officers, or to benefit the accused.
[I]t is important to note that the imposition which must be considered is the intrusion on a citizen’s right to be free of unreasonable searches, not upon any right to be free of criminal prosecution. Certainly the imposition of a criminal penalty for possession of drugs found during an airport search will burden the one on whom it is imposed; constitutionally speaking, however, he has suffered only the same intrusion as other passengers who were searched. Although the discovery of cocaine in a search for weapons may be unexpected by the government, there is nothing in the Constitution that gives the apprehended felon a right to complain because the product of the protective action was not anticipated. Such a result cannot properly be classified as a windfall. It is the product of valid police work. The government has no duty to catch a carrier of dope sportingly or according to any game book rule. Nor is it material whether the circumstances leading to the discovery of the cocaine were of the defendant’s making; all that matters is that the search be legally conducted.

482 F.2d at 1277-78 (emphasis added).

We hold that these searches are reasonable if conducted solely for the purpose of discovering whether a prospective air passenger poses an immediate threat to air commerce. Although the initiating purpose of the search is limited to the detection of a would-be hijacker, the search may be extensive because the airplane hijacker’s weaponry could be any of a number of easily concealed things including plastic explosives or gasoline. The fact that an object was not metal and therefore did not set off the magnetometer at the security boarding station does not mean the search must end at that point. See United States v. Bell, 464 F.2d 667 (2d Cir. 1972), cert. denied, Bell v. United States, 409 U.S. 991, 93 S.Ct. 335, 34 L.Ed.2d 258 (1972). So long as the object of the search is prevention of an airplane hijacking, the search is reasonable and proper and does not require probable cause for its foundation. But, as Judge Clark said in United States v. Skipwith:

[c]ertainly all citizens look forward to the day when skyjackings and their sequels, airport search and security measures, cease. When the threat of air piracy disappears the standards of reasonableness which we here recognize will go with it. Until that time arrives, however, the portent for evil supplies the requisite Fourth Amendment reasonableness to justify the search of any person who presents himself at a boarding gate to enter an aircraft.

482 F.2d at 1279.

In view of our holding that probable cause was not a prerequisite to this limited search in the security boarding area of the airport, we need not reach the question of whether, under the facts of this case, the detective actually had probable cause to search.

Accordingly, we hold that section 893.13 and section 893.03(2)(a)(4) are constitutional. We further hold that the trial court properly denied Shapiro’s motion to suppress evidence found as a result of a search by a detective of the Dade County Safety Department initiated to ensure that Shapiro was not a prospective airplane hijacker. When a valid “hijack” search takes place, evidence of another crime discovered during the search is admissible. The judgment and sentence are affirmed.

It is so ordered.

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

ADKINS, J., dissents with an opinion with which ENGLAND, J., concurs.

ADKINS, J.,

dissenting.

The facts are not disputed. I disagree with the conclusions of law made by the trial judge and by the majority opinion here. Inasmuch as I believe the motion to suppress should have been granted, I decline to reach the constitutionality of the statutes. Singletary v. State, 322 So.2d 551 (Fla.1975).

As with virtually all search and seizure issues, the factual circumstances are of utmost importance. Viewed in the light most favorable to the state, State v. Nova, 361 So.2d 411 (Fla.1978), the record from the hearing on the motion to suppress reveals the following facts.

On December 29, 1977, the appellant (hereinafter referred to as the defendant) arrived at the Miami International Airport with two other men, Scarborough and Krausey. After purchasing tickets, the defendant either helped or actually placed a bag in a coin-locker, then gave a key to Krausey in a manner which attracted the attention of a detective of the Dade County Public Safety Department’s Organized Crime and Narcotics Section. The detective approached the defendant and asked for identification, whereupon the defendant produced a Texas driver’s license in his own name and an airline ticket in another. When questioned about the discrepancy, the defendant became nervous and said the airlines made a mistake. As to the locker, the defendant said Krausey had gone to a ticket counter to leave the key for a man named Dean. This was verified by the ticket agent who said she had referred Krausey to another airline. Krausey could not be located. The detective asked the defendant twice for consent to search his hand luggage; the defendant refused both requests. By this time the detective felt that the defendant exhibited many characteristics of the so-called drug-courier and hijacker profiles. See United State v. McCaleb, 552 F.2d 717 (6th Cir. 1977). The bare fact that one fits a profile does not provide a reasonable basis for an investigative detention. United States v. Mendenhall, 596 F.2d 706 (6th Cir. 1979); United States v. Ballard, 573 F.2d 913 (5th Cir. 1978). Concluding that they had no reason to detain the defendant any longer, the officers permitted him to leave.

The detective and his co-worker followed the defendant to the security check station. The guard viewing the monitor testified that when the defendant’s bag went through, everything was clear except for something that looked like scissors. She drew this to the attention of her supervisor and passed the bag through again. Both security guards testified that all they observed on the screen was a pair of scissors. The detective claimed he saw a grey mass in the center of the screen. The supervisor asked the defendant if she could open the bag to check the scissors. The defendant consented, opened his bag, showed her the scissors and was told he could proceed. As the defendant moved his bag down the table to close it, the detective reached over, opened the suitcase further, and quickly lifted a pair of folded jeans causing a bag of cocaine to drop to the floor.

Airport searches have received considerable attention since the late 1960’s because of the frequency of skyjacking, which posed a severe threat to public safety. See e. g. United States v. Moreno, 475 F.2d 44 (5th Cir. 1973); United States v. Lopez, 328 F.Supp. 1077 (E.D.N.Y.1971). This menace engendered the development of screening procedures to detect potential hijackers pri- or to boarding the aircraft. See 3 W.R. LaFave Search & Seizure, A Treatise on the Fourth Amendment, section 10.6(a)-(g) at 327-56 (1979). Under the current system all persons entering the boarding area and their effects are mechanically checked. A practical ramification of this 100% screening process is that persons with contraband in their carry-on luggage may be apprehended. United States v. Davis, 482 F.2d 893 (9th Cir. 1973). Care must be taken to see that these routine airport inspections do not become vehicles by which otherwise impermissible searches and seizures are validated.

In the case at bar, the detectives were on duty as organized crime and narcotics officers. They admittedly did not have probable cause to arrest or search the defendant after the initial encounter in the terminal area. They followed him to the screening area. One detective admonished the security guard to check defendant’s bag carefully. He also positioned himself to view the monitor as the bag passed through. The defendant had been cleared by the security guards when the detective reached for the blue jeans in the partially-opened suitcase. The detective’s testimony that he saw a grey mass on the X-ray monitor and feared an explosive device is untenable in light of his expertise and his actions. Cf. United States v. Scott, 406 F.Supp. 443 (E.D.Mich. 1976). Seizing the clothing so as to cause the concealed item to drop to the floor is not consistent with the caution one should exhibit in the presence of a putative bomb.

The officer’s conduct must be gauged by established Fourth Amendment principles. A warrantless seizure of the jeans clearly occurred. At no time did the defendant consent to a search by the detective. Cf. Myles v. State, 374 So.2d 83 (Fla. 3d DCA 1979); Husted v. State, 370 So.2d 853 (3d DCA 1979). No contraband was in plain view. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The defendant was in the process of closing his bag when the officer reached in; there was no evidence that the bulge represented an immediately accessible weapon. McNamara v. State, 357 So.2d 410 (Fla.1978).

The state contends that the detective’s knowledge of the immediately preceding events gave him a “founded suspicion” that the bag contained a weapon or explosive and that this justified the seizure pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry, the Supreme Court applied a balancing test to justify an officer’s detention and “frisk” or “pat-down” of a defendant’s person for a weapon upon less than the traditional probable cause standard. The Court weighed the danger to the officer against the degree of intrusion involved in a pat-down type search. Terry is inapplicable to the case at bar. The officer did not testify he believed the defendant was armed or presently dangerous except that there might be a bomb, in which case his actions only increased the danger. There is no reason to judge his conduct by less than a probable cause to search standard. Applying that standard to the instant facts, I find no support for a warrantless seizure of the defendant’s clothing. All this officer knew was that the defendant fit a profile, he was nervous, and a grey mass appeared on the monitor. Neither of the trained security guards saw the grey mass and the defendant cleared airport security. At most, the officer had a suspicion that something was amiss. State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978).

The trial court did not enter a written order denying the motion to suppress. The ruling consisted of the following:

The Court: I say, in this issue, as in the case of most issues, the law of common sense is the prevailing one.
It would be, I think, to disregard common sense to hold that a reasonable person in this officer’s position, knowing what this officer knew, did not have reasonable grounds to believe, as a man of reasonable cause of action [sic], that an offense had been committed.
Therefore, I will deny the motion to suppress.

This is the appropriate standard for ascertaining the validity of a warrantless arrest, not a warrantless seizure. See State v. Doe, 115 N.H. 682, 371 A.2d 167 (1975).

The sentence should be vacated, the conviction reversed, and the cause remanded to the trial court for further proceedings.

ENGLAND, J., concurs.


author: OVERTON, Justice.

text:
    Ralph RUHL, Appellant, v. Tom PERRY and Ann Perry, Appellees.
    No. 57470.
    Supreme Court of Florida.
    Nov. 13, 1980.

      Daniel M. Kilbride, Jr., Vero Beach, for appellant.
    Jerome D. Quinn and Thomas Thatcher of Smith, O’Haire, Thatcher & Quinn, Vero Beach, for appellees.
   OVERTON, Justice.

This is an appeal from a circuit court judgment expressly holding unconstitutional sections 95.11(2)(b) and 95.022, Florida Statutes (1975). Section 95.11(2)(b), as enacted by chapter 74-382, Laws of Florida, shortens the period of limitation for a cause of action founded on a sealed note from twenty years to five years. Section 95.022, enacted as part of the same legislative act, is a one-year savings clause for preexisting rights. The trial court held these statutory sections were violative of article III, section 33, of the Florida Constitution (1885), and article I, section 10, of the United States Constitution. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution (1972).

We find the subject statutes constitutional, but the cause was not barred by the statute of limitations as applied to the facts of this case because of the change in the date the cause of action accrued, and therefore the judgment is affirmed.

The issue concerns the authority of the legislature to affect existing causes of action by (1) reducing a statute of limitations period and (2) changing the point at which a cause of action on a demand note accrues. The latter issue relates to the enactment of section 95.031, Florida Statutes (1975).

The relevant facts are as follows. Appellant Ruhl borrowed $7,500 from appellee Tom Perry in 1960. Ruhl executed a sealed note promising to repay the principal “on demand after two years from date.” The note further provided for a waiver of “demand, protest and notice of maturity, nonpayment and protest and all requirements necessary to hold each of them liable.” No demand was made until Perry filed suit on May 17, 1976. The trial court expressly found that the loan had not been paid and proceeded to consider the issue of whether a judgment on this note under seal was barred by the statute of limitations.

In 1960, when the note was made, the statute of limitations for sealed instruments was twenty years, prescribed by section 95.-11(1), Florida Statutes (1959). Chapter 74-382 repealed section 95.11(1) and enacted section 95.11(2Xb) effective January 1,1975, which had the effect of reducing from twenty to five years the statute of limitations on sealed instruments. This new statutory section provides in part:

95.11 Limitations other than for the recovery of real property.-Actions other than for recovery of real property shall be commenced as follows:
(2) WITHIN FIVE YEARS.-
(b) A legal or equitable action on a contract, obligation or liability founded on a written instrument.

This same chapter, 74-382, contained a savings clause enacted as section 95.022 effective January 1, 1975, which provides:

Effective date; saving clause.-This act shall become effective on January 1,1975, but any action that will be barred when this act becomes effective and that would not have been barred under prior law may be commenced before January 1, 1976, and if it is not commenced by that date, the action shall be barred.

Six months later, effective in June of 1975, section 95.031(1) was amended and changed the point at which a cause accrues on a written instrument payable on demand. That statutory section, as amended by chapter 75-234, Laws of Florida, provided:

(1) A cause of action accrues when the last element constituting the cause of action occurs. For the purposes of this chapter, the last element constituting a cause of action on an obligation or liability founded on a written instrument payable on demand or after date with no specific maturity date specified in the instrument and the last element constituting a cause of action against any endorser, guarantor or other person secondarily liable on any such obligation or liability founded on a written instrument payable on demand or after date is the first written demand for payment, notwithstanding that the endorser, guarantor or other person secondarily liable has executed a separate writing evidencing such liability.

This statutory provision was subsequently amended by chapter 77-54 but not in a manner that is material to the issues in this case.

Also applicable to the issue in this cause is section 673.122(1) of the Uniform Commercial Code which provided in 1976 and at the time the suit was filed:

673.122 Accrual of cause of action-
(1) A cause of action against a maker or an acceptor accrues:
(a) In the case of a time instrument on the day after maturity;
(b) In the case of a demand instrument upon its date or, if no date is stated, on the date of issue.

It was amended in 1977 to read as follows:

673.122 Accrual of cause of action.-
(1) A cause of action against a maker or an acceptor accrues:
(a) In the case of a time instrument on the day after maturity;
(b)l. In the case of a demand instrument other than a note payable on demand, upon its date or, if no date is stated, on the date of issue.
2. In the case of a note payable on demand, as provided in s. 95.031(1).

The trial court held sections 95.11(2)(b) and 95.022 unconstitutional as applied. It concluded that section 33 of article III of the 1885 constitution, which expressly provided that no statute should be passed lessening the time within which a civil action may be commenced, mandates that the twenty-year statute of limitations in effect when the note was made is an integral part of the note. The court further concluded that this period could not be changed by either subsequent legislation or the 1968 Constitution because such a change would violate article I, section 10, of the United States Constitution, and section 20 of the Florida Constitution Declaration of Rights, concerning the impairment of the obligation of a contract. The trial court found that appellees-plaintiffs were entitled to recover on the note and entered judgment accordingly. We agree that judgment should have been entered for appellees, but reverse the trial court’s holding of unconstitutionality of the subject statutory sections.

The primary issues are (1) whether sections 95.11(2)(b) and 95.022 may constitutionally be applied to the facts of this case, and, if applicable, (2) does the change in the law relating to the time a cause of action accrues upon a demand note as prescribed in section 95.031, Florida Statutes (1975), allow the cause of action to be brought in this cause.

We find the new statute of limitations set forth in section 95.11(2)(b) to be applicable to this cause and constitutional. The statutory change in the law concerning the time when a cause of action accrues upon a demand note is also applicable, and, as a result, the appellees may properly bring this action since the cause of action under the new statute did not accrue until the first written demand occurred by filing the lawsuit.

It is well established that, by legislative enactment, a state may modify existing remedies, including a statute of limitations, without impairing the obligation of contracts as long as a sufficient remedy is left or another sufficient remedy is provided. This Court has recently upheld the constitutionality of the two statutory sections in question here, as applied to promissory notes under seal. Carpenter v. Florida Central Credit Union, 369 So.2d 935 (Fla.1979). As we stated in Dade County v. Ferro, 384 So.2d 1283 (Fla.1980), and in Foley v. Morris, 339 So.2d 215 (Fla.1976), the legislature clearly has the authority to change a statutory limitation period previously established by law and to make them applicable to existing causes of action as long as a reasonable time is permitted to allow commencement of an action before it is barred. Carpenter; H. K. L. Realty Corp. v. Kirtley, 74 So.2d 876 (Fla.1954); Mahood v. Bessemer Properties, Inc., 154 Fla, 710, 18 So.2d 775 (1944). We have further expressly stated in Dade County v. Ferro that the authority of the legislature is broad enough to include both causes of action which have accrued and those which concern incidents occurring prior to the effective date of the new statute. We note that the date of discovery of a claim and accrual of a cause of action are relevant to the application of a savings clause. Dade County v. Ferro. This Court has clearly held that “an existing law of limitations is not a part of a contract.” Mahood, 18 So.2d at 780. The one-year savings clause for preexisting claims contained in section 95.-022 establishes a reasonable period of time for a claim to be commenced, and this saving clause is itself a manifest indication that the legislature intended the statute reducing the period of limitation to be retroactive. Carpenter.

We recognize that the 1885 Constitution in effect at the time the note was made prohibited the legislature from shortening periods of limitation so as to bar preexisting claims. We reject appellees’ assertion and the trial court’s holding that since this demand note was executed while the 1885 Constitution and the twenty-year statute of limitations were in effect, that statute of limitation period became an absolute and integral part of the promissory note and could not be eliminated without being a violation of the impairment of contract clause. We find this argument without merit. See Wheeler v. Jackson, 137 U.S. 245, 11 S.Ct. 76, 34 L.Ed. 659 (1890); Terry v. Anderson, 95 U.S. 628, 24 L.Ed. 365 (1877); Mahood.

Having found that the new five-year statute of limitations applies, the next question is, when does the five-year statute of limitations begin to run. The note was a combination of a term and a demand note. It was a term note for the first two years and a demand note thereafter. At the time the note was made and delivered, a cause of action on a demand note accrued on the date of issuance or delivery. Syerson v. Kimball, 40 So.2d 781 (Fla.1949); Bryan v. First Baptist Church of Altamonte Springs, 158 So.2d 140 (Fla. 2d DCA 1963); Wester v. Rigdon, 110 So.2d 470 (Fla. 1st DCA 1959); § 673.122, Fla.Stat. (1975). Whether the statute of limitations began to run when the note was made in 1960 or at the end of two years in 1962 makes no difference. The one-year grace period from January 1, 1975, to January 1,1976, granted by the savings clause would govern this claim, and, as a result, the cause of action would have to be filed within this grace period or be barred. During this grace period, specifically on June 27, 1975, the legislature amended section 95.031 to change the time when a cause of action accrued on demand promissory notes from date of issuance or delivery to when the first written demand is made on the note. The effect of applying this amendment is that the time did not commence to run on this claim until the cause of action was filed, because no written demand had previously been made. The note was due “on demand after two years from date,” which terminology renders the maturity date nonspecific, and, therefore, the note is within the provisions of section 95.031, Florida Statutes (1975).

The appellant maker of this note asks that we on the one hand apply the new reduced five-year statute of limitations but on the other hand reject the application of the new statute changing the accrual of a cause of action, which would have the effect of barring the appellees from recovery on this debt. Such an assertion is neither reasonable nor logical. If the legislature may modify existing remedies by shortening or lengthening the statute of limitations without impairing the obligation of contract, it may also modify the time when a cause of action accrues. The contention by appellant that section 95.031 is a limiting procedural mandate requiring a written demand and nothing more, is without merit. In clear, unambiguous terms the statute provides that a cause of action accrues on a written instrument payable on demand with no specific maturity date when the “first written demand for payment occurs.” See Wetmore v. Brennan, 378 So.2d 79 (Fla. 3d DCA 1979). Consequently, in view of the grace period and the adoption of section 95.031 during that period, the new five-year statute of limitations did not commence in this cause until the cause of action was filed, since that was admittedly the first written demand for payment.

We find that the appellee holders of the note were clearly entitled to the benefit of this statutory change in the method of computing the accrual of their cause of action since it occurred during the savings clause grace period. We recognize that section 673.122, as it existed in 1975, provided that the cause of action on a demand instrument accrues on the date of issue. We find, however, that section 95.031 was the last legislative expression on the subject and is controlling in the instant case. Subsequently, in 1977, section 673.122 was amended to expressly adopt section 95.031; consequently, no present conflict between the two statutes exists.

In conclusion, we disagree with the trial court that the modification of the statute of limitations is unconstitutional when applied to existing claims. The legislature has the authority to modify both the statute of limitations and the time when the cause of action upon a demand note accrues. Upon proper application of these new statutory provisions to the facts of this case, the appellees are entitled to the judgment entered by the trial court. For the reasons expressed, the judgment is affirmed.

It is so ordered.

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


author: ENGLAND, Justice.

text:
    Antonio V. HERNANDEZ, Petitioner, v. Elizabeth GARWOOD, etc. et al., Respondents. FORT PIERCE MEMORIAL HOSPITAL, Petitioner, v. Elizabeth GARWOOD, etc. et al., Respondents.
    Nos. 58897, 58898.
    Supreme Court of Florida.
    Nov. 13, 1980.

      Carl D. Motes of Maguire, Voorhis & Wells, Orlando, for Hernandez, and George H. Moss and Marjorie D. Gadarian of Jones, Foster & Moss, Vero Beach, for Fort Pierce Memorial Hospital.
    Larry Klein, West Palm Beach, and the Law Offices of Cone, Owen, Wagner, Nu-gent, Johnson, Hazouri & Roth, West Palm Beach, for respondents.
   ENGLAND, Justice.

We are here asked to review an extraordinary trial court order which found (1) that Florida’s wrongful death statute violates the equal protection clause of the United States Constitution and the access to court provision of the Florida Constitution, (2) that Florida’s medical mediation statute is unconstitutional as applied to panel decisions entered before the statute was held unconstitutional, and (3) that the legislature’s two year statutes of limitations for medical malpractice and wrongful death are “unconstitutionally too short.” This order denied motions to dismiss a medical malpractice lawsuit brought against two doctors and a hospital by Elizabeth Garwood as a result of the death of her stillborn child.

There is little to be said in support of the trial court’s order, and there is no basis in law to sustain Garwood’s attempt to maintain a cause of action for the wrongful death óf a stillborn fetus.

(1) With regard to the question of whether a cause of action can be maintained for the death of a stillborn fetus, we quite recently held that no such cause of action exists under Florida’s Wrongful Death Act. Duncan v. Flynn, 358 So.2d 178 (Fla.1978); Stern v. Miller, 348 So.2d 303 (Fla.1977). In an attempt to maintain her lawsuit nonetheless, Garwood charts a course between the Scylla of these decisions and the Charybdis of the trial court’s invalidation of the statute (for Garwood properly concedes that there is no basis for a wrongful death suit outside the wrongful death statute). Gar-wood argues, essentially, that we should construe the wrongful death statute exactly opposite to the way we construed it in Duncan and Stern, and thereby overcome its constitutional infirmities.

No legislative alteration of the statute has taken place since we announced our understanding of what the legislature said and meant when the statute was passed. We decline to reconsider our earlier analysis. Moreover, we reject the trial court’s analysis on both constitutional issues. The statute in no way violates the equal protection clause of the United States Constitution, see Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (the word “person” as used in the fourteenth amendment does not include the unborn), and our previous decisions in Stern and Duncan negate the trial court’s invalidation of the statute as a denial of access to the courts.

(2) With regard to the trial court’s finding that Florida’s medical mediation statute is unconstitutional as to claims filed before we declared it unconstitutional, we need only reiterate what we said before. When we struck down the medical mediation statute earlier this year in Aldana v. Holub, 381 So.2d 231 (Fla.1980), we made it abundantly clear that our determination of invalidity was prospective, and that prior claims falling within the statute were not affected. Before Aldana, Garwood had submitted her personal claim against Fort Pierce Memorial Hospital to a panel which found that the hospital was not negligent. Our ruling in Aldana left that prior written decision of the medical mediation panel intact, so that the hospital is entitled to have the panel finding admitted into evidence in a subsequent trial, should one be necessary.

Garwood submitted another negligence claim against Dr. Hernandez after the panel hearing on her claim against Fort Pierce Memorial Hospital had terminated, and over two years after the alleged act of malpractice. Hernandez here contends the panel’s jurisdiction terminated because no hearing was held within the required 120 days. As this contention raises unresolved questions of fact, we remand this issue to the trial court for any further proceedings that may be necessary.

(3) We find nothing to support or commend the trial court’s finding that two years is “unconstitutionally too short” for a claim such as this. We note that Garwood’s counsel did not request this ruling, and that he now disavows it. Because there has been no opportunity to develop facts which would determine the applicability of a statute of limitations on Garwood’s personal claims, we also remand this issue to the trial court for appropriate further proceedings.

One further matter must be mentioned. The trial judge in this case expressed strong dissatisfaction with prior decisions of this Court and ruled contrary to them, basically on the ground that he took an oath to uphold the constitution as he construes it. He is wrong in asserting his personal construction of the law in the face of authoritative determinations to the contrary by this Court, and his exercise in judicial independence has cost these litigants and the judicial system considerable time and money which should not have been expended. A trial judge may well be free to express his personal disagreement with the decisions of higher courts in some forums, but he is not free to disregard them in the exercise of his judicial duties. See State ex rel. Hawkins v. Board of Control, 93 So.2d 354 (Fla.), cert. denied, 355 U.S. 839, 78 S.Ct. 20, 2 L.Ed.2d 49 (1957) (Thomas, J., dissenting; Drew, J., dissenting). We assume that this admonition is sufficient to inform the trial judge that he is not, despite his best intentions, a law unto himself.

The order of the trial court is quashed and this case is remanded for further proceedings on Garwood’s personal claims.

SUNDBERG, C. J., BOYD, OVERTON and McDonald, JJ., concur.

ALDERMAN, J., concurs in result only.

ADKINS, J., dissents.

      . §§ 768.16- .27, Fla.Stat. (1976 Supp.).

      . U.S.Const., amend. XIV, § 1.

      . Art. I, § 21, Fla.Const. (1976).

      . § 768.44, Fla.Stat. (1976 Supp.).

      . § 95.11(4)(b), Fla.Stat. (1976 Supp.).

      . § 95.11(4)(d), Fla.Stat. (1976 Supp.).

      . Our jurisdiction was invoked under Art. V, § 3(b)(3), Fla.Const. (1972).

      . Stern v. Miller, Fla., 348 So.2d 303, 304-05 (1977).

      .Rule 20.190(b), Fla.R.Med.P. (1978). But see Green v. Broward Gen. Medical Center, 356 So.2d 877 (Fla. 4th DCA 1978) (claimant entitled to pursue cause of action in circuit court for medical malpractice although jurisdiction of mediation panel terminated).

      . See Nolen v. Sarasohn, 379 So.2d 161 (Fla. 3d DCA 1980); Eland v. Aylward, 373 So.2d 92 (Fla. 2d DCA 1979).

      . The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence.
      B. N. Cardozo, The Nature of the Judicial Process 141 (1921).


author: PER CURIAM.

text:
    STATE of Florida, Petitioner, v. Jeri Lee HAUGLAND and Nils Richard Haugland, Respondents.
    No. 57796.
    Supreme Court of Florida.
    Nov. 13, 1980.
    Jim Smith, Atty. Gen., and Susan C. Minor, Asst. Atty. Gen., Miami, for petitioner.
    Max P. Engel of Engel, Aronson, Fried & Cohn, Miami, for respondent, Jeri Lee Haugland.
    Sheldon Yavitz and Paul H. Stevens, Law Offices of Sheldon Yavitz, Miami, for respondent, Nils Richard Haugland.
   PER CURIAM.

Having accepted jurisdiction, the Court, upon further consideration of the matter, has determined that it is without jurisdiction. Therefore, certiorari is denied.

No Motion for Rehearing will be entertained by the Court. See Fla.R.App.P. 9.330(d).

Opinion below, Fla.App., 374 So.2d 1026.

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

ADKINS, BOYD and McDONALD, JJ., dissent.


author: HOBSON, Acting Chief Judge. PER CURIAM.

text:
    Stephen GROFF, Petitioner, v. STATE of Florida, Respondent.
    No. 79-1811.
    District Court of Appeal of Florida, Second District.
    July 2, 1980.
    Rehearing Granted In Part, Denied In Part Sept. 24, 1980.
    Rehearing Denied Nov. 19, 1980.
    Thomas F. Granahan, P. A., Tampa, for petitioner.
    E. J. Salcines, State’s Atty., and John W. Jennings, Asst. State’s Atty., Tampa, for respondent.
   HOBSON, Acting Chief Judge.

Petitioner Stephen Groff, a psychiatrist, seeks certiorari to review a circuit court order which reverses a county court order granting petitioner’s motion to dismiss the amended information. We grant certiorari and vacate the challenged order.

On May 5, 1978, the State filed an amended information charging petitioner with failure to report child abuse under Section 827.07(4), Florida Statutes (1977). The information alleged that:

STEPHEN H. GROFF between March 1, 1977 and March 31, 1978 ... did unlawfully fail to report the abuse of LESLIE ANN HOOVER, a child, to the Department of Health and Rehabilitative Services, when the said STEPHEN GROFF had reason to believe that the said LESLIE ANN HOOVER was being abused .

In order to be valid, an information must allege each of the essential elements of a crime, and the offense charged must be described by such a statement of facts and circumstances as will inform the accused of the specific offense, coming under the general statutory description, with which he is charged. United States v. Slepicoff, 524 F.2d 1244 (5th Cir. 1975); State v. Dye, 346 So.2d 538 (Fla.1977).

In the instant case, the information is defective because its allegations do not show that Dr. Groff is subject to penalties under Chapter 827, Florida Statutes (1977). Section 827.07(14), Florida Statutes, provides that the following persons may be found guilty of a second degree misdemean- or:

(a) Any person responsible for the care of a child who fails to report a case of known or suspected child abuse .
(b) Any person who knowingly or wilfully prevents another person from making such report .

The information in this case does not allege that Dr. Groff was responsible for the care of Leslie Ann Hoover or that he knowingly and wilfully prevented another person from making a report of child abuse. An essential element of the offense is therefore omitted, and such omission is fatal.

We find no merit in the other points raised by petitioner.

Accordingly, the petition for writ of cer-tiorari is granted and the order of the circuit court is quashed.

GRIMES and OTT, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

The State’s motion for rehearing is granted to the extent that we now hold that Section 827.07(11), Florida Statutes (1975), contained a penalty provision which is applicable to the petitioner, Dr. Groff, as to any alleged failure to report child abuse which occurred prior to October 1,1977, the effective date of Section 827.07(4)(a), Florida Statutes (1977).

In our initial opinion we held that the information filed against Dr. Groff did not sufficiently charge the crime of failure to report child abuse because the information failed to allege facts to show that Dr. Groff was subject to penalties under Section 827.07(14), Florida Statutes (1977). In its motion for rehearing the State points out that Dr. Groff was not charged under the 1977 statute, but under the 1975 child abuse statute, Section 827.07(4), Florida Statutes (1975), under which the applicable penalty section subjects to penalty “anyone knowingly and willfully violating the provisions of this section.” § 827.07(11), Fla. Stat. (1975). We therefore agree that the information sufficiently alleged facts to show that Dr. Groff was subject to penalty for failure to report child abuse, as to any of the alleged conduct occurring before October 1, 1977. On that date, however, the 1977 penalty section of Chapter 827 became effective. Therefore, as to any alleged conduct occurring after the effective date of Section 827.07(14), Florida Statutes (1977), we adhere to the view expressed in our original opinion, that the information does not sufficiently allege facts to show that Dr. Groff was subject to penalty.

Accordingly, the order of the circuit court is affirmed in part and quashed in part, and the cause remanded for further proceedings consistent with this opinion. The motion for rehearing is otherwise denied.

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

      . 827.07(4) REPORTS OF ABUSE REQUIRED.
      (a) Any person, including, but not limited to, any physician, nurse, teacher, social worker, or employee of a public or private facility serving children, who has reason to believe that a child has been subject to abuse shall report or cause reports to be made to the department. . . .

      . There are no penalties set forth for failure to report child abuse under § 827.07(4). Chapter 827 was amended in 1979 to provide a penalty for circumstances such as exist in this case.


author: PER CURIAM. ERVIN, Judge,

text:
    William Leete STONE, Appellant, v. STATE of Florida, Appellee.
    No. PP-200.
    District Court of Appeal of Florida, First District.
    Aug. 29, 1980.
    Rehearing Denied Oct. 13, 1980.
    Lawrence L. Scott, Tampa, for appellant.
    Jim Smith, Atty. Gen., Doris E. Jenkins, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED.

LARRY G. SMITH and SHAW, JJ., concur.

ERYIN, J., dissents with opinion.

ERVIN, Judge,

dissenting.

I dissent. Stone appeals his adjudication of guilt for possessing 100 pounds of cannabis with intent to sell or deliver, entered after pleading nolo, while reserving his right to appeal the denial of his motion to suppress. I would reverse because I feel no lawful consent was given any of the officers to enter Stone’s truck.

After Stone, in a pick-up truck with camper top, was stopped by agricultural inspection officers for passing an agricultural inspection station, he was told that they “would need to take a look in his truck.” Stone paused briefly, then opened the back of his truck where several large, heavy boxes stood. One of the officers leaned inside the truck, opened a corner of a box and smelled marijuana. Stone was then arrested for failing to stop at an inspection station, brought back to the station and again asked if his truck could be inspected. Appellant responded by inquiring if they had the right to search his truck. One of the inspectors answered that they could look for agricultural products. Appellant assented. The truck was again opened, the officers again smelled marijuana and a deputy sheriff was summoned. Upon the deputy’s arrival, Stone refused to open his truck. After talking with the officers about the boxes, the deputy reached into the truck through a broken back window and tore a portion of an exposed plastic bag in one of the boxes, releasing what proved to be marijuana into his hand.

Since the deputy sheriff’s belief that the vehicle contained contraband was based only on the officers’ statements they had smelled marijuana, his warrantless seizure may be upheld only if it can be determined the consent furnished the inspectors was free and voluntary, so that the consent given them may in turn be viewed as transferred to the deputy. See Flynn v. State, 374 So.2d 1041 (Fla. 1st DCA 1979).

I think it necessary to restate some elementary principles regarding consent to a lawful search. When the state conducts a warrantless search, the burden is upon it to show by clear and convincing evidence that the consent was lawfully obtained. See King v. State, 371 So.2d 120 (Fla. 1st DCA 1978); Hunt v. State, 371 So.2d 205 (Fla. 2d DCA 1979). That burden is not met when the response given is equivocal. Raffield v. State, 362 So.2d 138 (Fla. 1st DCA 1978). And the state must establish more than simply silent acquiescence to a request to enter. Cf. Ingram v. State, 364 So.2d 821 (Fla. 4th DCA 1978). Finally, the voluntar-iness of the consent must be determined from a consideration of all the circumstances. Bailey v. State, 319 So.2d 22, 27 (Fla.1975).

The initial entry into appellant’s truck was achieved by appellant’s compliance with the inspector’s statement that he needed to look inside it. The facts here are hardly distinguishable from those in Raffield v. State, supra, where we invalidated a seizure which the state sought to justify as consensual upon facts showing that defendant acquiesced to an officer’s request that “we’re going to search the barn now” and defendant replied, “Well, it’s in there,” or “I’m guilty.” 362 So.2d at 139-40. Compare also Sarga v. State, 322 So.2d 592 (Fla. 1st DCA 1975) (seizure invalidated when defendant complied with the third request of an inspector that the door to his truck be opened), and Ingram v. State, supra (seizure invalidated on facts showing defendant’s silent compliance with the officers’ request to look inside a bag).

Since we are required to consider all the circumstances surrounding the purported voluntary consent, the facts involved in the two later intrusions here militate even more strongly against the state’s reliance upon consensual admittance. The second entry into the truck was hardly supported by an unequivocal consent, but was accomplished only after the inspector responded to defendant’s inquiry by advising him he had the right to look for agricultural products. Compare Villari v. State, 372 So.2d 522 (Fla. 1st DCA 1979) and Gonterman v. State, 358 So.2d 595 (Fla. 1st DCA 1978). Finally, the deputy’s intrusion, in the absence of voluntary consent, cannot be justified on any theory of warrantless search.

I would reverse.


author: BERANEK, Judge.

text:
    STATE of Florida, Petitioner, v. Ophelia Johnson CLEVELAND, Respondent.
    No. 80-515.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 1980.
    Rehearing Denied Dec. 19, 1980.
    Michael J. Satz, State’s Atty., and Patti Englander, Asst. State’s Atty., Fort Laud-erdale, for petitioner.
    Alan H. Schreiber, Public Defender, and Steven Michaelson, Asst. Public Defender, Fort Lauderdale, for respondent.
   BERANEK, Judge.

This is a petition for writs of common law certiorari and prohibition wherein the State of Florida seeks review of an order entered by the Circuit Court requiring the Department of Corrections to accept defendant into the pretrial intervention program ere-ated under Section 944.025, Florida Statutes (1979). This statute provides in relevant part:

(1) The department shall supervise pretrial intervention programs for persons charged with a crime, before or after any information has been filed or an indictment has been returned in the Circuit Court. Such programs shall provide appropriate counseling, education, supervision, and medical and psychological treatment as available and when appropriate for the persons released to such programs.
(2) Any first offender who is charged with any misdemeanor or felony of the third degree is eligible for release to the pretrial intervention program on the approval of the administrator of the program and the consent of the victim, the State Attorney, and the judge who presided at the initial appearance hearing of the offender. In no case, however, shall any individual be so released unless, after consultation with his attorney or one made available to him if he is indigent, he has voluntarily agreed to such program and has knowingly and intelligently waived his right to a speedy trial for the period of his diversion. In no case shall the defendant or his immediate family personally contact the victim or his immediate family to acquire the victim’s consent under the provisions of this act. The defendant was charged with welfare

fraud, a third degree felony under Sections 409.325(l)(b) and 409.325(5)(b), Florida Statutes (1979). She applied for admission to the pretrial intervention program but was refused admittance by the Department of Correction and the State Attorney. The Department of Offender Rehabilitation, in an existing published statement of eligibility requirements of the program, stated that “no individual will be considered (for the program) when the instant offense is Boli-ta, Welfare Fraud or other forms of gambling.” The reason stated by the Office of the State Attorney for denial of consent was that:

This office does not consent to any person charged with the instant offense [welfare fraud] being admitted into the pretrial intervention program due to the serious and widespread nature of said offense and the impact said offense has on the general taxpayer and public at large.

At the defendant’s request and over the State’s objection, the trial court held a hearing to review the State Attorney’s reasons as stated above and found them to be “. . . wholly subjective and inarticulate, without basis in law, contrary to legislative intent, and therefore, arbitrary, capricious and without legal reason or justification.” In so concluding, we find that the trial court departed from the essential requirements of law and acted outside of his appropriate jurisdiction.

The determinative issue is whether diversion into the Florida pretrial intervention program is a prosecutorial or a judicial decision. We conclude that the program as established by the Legislature is within the prosecutorial rather than the judicial realm; therefore, the State Attorney’s reason for denying consent may not be reviewed by the Circuit Court. In reaching this conclusion we are aware of the Second District’s contrary result in State v. Eash, 367 So.2d 661 (Fla. 2d DCA 1979), cert. denied, 374 So.2d 101 (Fla.1979).

A review of Section 944.025, Florida Statutes (1979), in its entirety discloses a legislative intent to vest the prosecutor with discretion regarding whether or not to prosecute a defendant who might be eligible for the pretrial intervention program. Under the general scheme of this statute, any person, either before or after the filing of an information, who is charged with a misdemeanor or third degree felony, may participate in the program upon the approval of the administrator of the program and the consent of the victim, State Attorney and the judge who presided at the initial appearance hearing of the offender. Subsection (4) deals with successful or unsuccessful completion of the program by an offender and provides that the State Attorney shall have the final determination as to whether prosecution shall continue. The overall statutory scheme as we see it is consistent with the purely prosecutorial function of deciding whether or not to charge an individual or to proceed with the prosecution once that individual has been charged. Consequently, the court with trial jurisdiction over the defendant may not review the basis for the State Attorney’s denying admission to the program.

In reaching a contrary result, the trial court relied upon State v. Eash, supra, the only authority in this State dealing with a similar question. In Eash, the trial court examined the portion of the pretrial intervention statute requiring that the admittee waive his right to speedy trial for the period of diversion. The trial court construed that nature and extent of the necessary waiver document in a specific order interpreting the statute. The State disagreed with the Court’s interpretation but instead of seeking review of the interpretative order, simply refused to consent, asserting that the trial court’s order was wrong. The trial court later ordered the Department of Offender Rehabilitation to admit the defendant or, in the alternative, the case would be dismissed. Eventually, after the State further refused to consent, the trial court dismissed the information. On appeal, the Second District affirmed the trial court’s finding that the State’s action had been arbitrary and capricious but reversed the dismissal of the charges. In doing so, the Second District further held that the consents of all concerned must be rationally exercised consistent with the legislative purpose and that the trial court can properly determine whether the State Attorney has lawfully exercised his consensual discretion. We respectfully disagree and hold that the exercise of consensual discretion by the State Attorney under such circumstances is a matter which may not be reviewed by the Circuit Court with trial jurisdiction over the case.

Furthermore, since our statute requires consent from the victim, it is difficult for us to theorize how the trial court could review the victim’s refusal to consent for irrationality. We have been directed to similar pretrial intervention programs existing in the states of New Jersey, Pennsylvania, and California for precedent on the subject, but none of these out-of-state programs contain victim consent as a requirement. See State v. Leonardis, 71 N.J. 85, 363 A.2d 321 (1976), aff’d and clarified on rehearing, 73 N.J. 360, 375 A.2d 607 (1977); Commonwealth v. Kindness, 247 Pa.Super. 99, 371 A.2d 1346 (1977); People v. Superior Court of San Mateo County, 11 Cal.3d 59, 113 Cal.Rptr. 21, 520 P.2d 405 (1974). The requirement of victim consent in our statute compels us to conclude that the trial court does not have the power to overrule the victim if he chooses not to consent.

Consent from the judge who presided at the defendant’s initial appearance hearing is also required under the statute. Contrary to Eash, we construe this statutory consent as applicable to the judge presiding at the defendant’s first appearance hearing as defined by Florida Rule of Criminal Procedure 3.130(b). This judge would have limited contact with the offender, and in most situations, this contact would occur before formal charges were filed. We do not believe the statutory scheme contemplates that the trial judge may later review for rationality the reasons in the mind of the first appearance judge if he decides not to consent to pretrial intervention.

The Florida pretrial intervention program, unlike the California plan, does not contemplate judicial review of the consents of those required. In California the District Attorney screens offenders for eligibility and the probation department investigates the facts. The trial court then makes the ultimate decision on whether a defendant should enter the diversion program. See People v. Superior Court of San Mateo County, supra. Similarly, in State v. Leonardis, supra, the New Jersey Supreme Court ruled that their state pretrial intervention program was subject to judicial supervision. Unlike the Florida plan, however, the New Jersey plan was adopted pursuant to court rule. The Florida statute vests no authority directly in the trial judge to review the determinations of entry into the program. As the Pennsylvania court held in Commonwealth v. Kindness, supra, the Court simply does not possess the power to overrule the prosecutor and order pretrial diversion.

We believe the decision to divert a defendant into the Florida pretrial intervention program, as stated in the statute, is basically within the prosecutor’s function of charging and prosecuting. If the prosecutor refuses to consent to an applicant’s entry into the program, that defendant may not seek review in the Circuit Court on the theory of an arbitrary and capricious decision by the State Attorney. The system is one of balancing. If the prosecutor takes the case to trial and the defendant is found guilty, the trial judge has the discretion under the law to sentence the defendant in whatever fashion the trial court sees fit. Indeed, the Eash case makes it clear that the State Attorney must still make the final determination as to whether prosecution will continue.

We conclude that the trial court acted beyond the scope of its jurisdiction in reviewing the reasons for the prosecutor’s refusal to consent.- The order below is quashed and the cause remanded for further proceedings.

QUASHED AND REMANDED.

LETTS, C. J„ and GLICKSTEIN, J„ concur.

      . In the instant case, no attempt was made to explore the question of victim consent. Indeed, whether there is a victim in the crime of welfare fraud is one which we do not answer. We are not advised of any of the details of the defendant’s crime and do not rule on whether victim consent was appropriate.

      . Defendant, convicted of driving while intoxicated, sought admission to a similar pretrial program in Pennsylvania. The prosecuting attorney in question had an office policy against the admission of drunken driving cases to .their pretrial diversion program. Defendant asserted he had been unconstitutionally denied admission to participate in the program.


text:
    ROBSTONE COMPANY and Argonaut Insurance Company, Appellants, v. Ramon COSTA, Appellee.
    No. TT-364.
    District Court of Appeal of Florida. First District.
    Sept. 9, 1980.
    Rehearing Denied Oct. 17, 1980.
    Summers Warden, Miami, for appellants.
    George M. Nachwalter and Jay M. Levy of Nachwalter, Christie & Falk, P.A., Miami, for appellee.
   PER CURIAM.

AFFIRMED.

WENTWORTH and JOANOS, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.


author: BOARDMAN, Judge.

text:
    RINGLING BROS.-BARNUM & BAILEY COMBINED SHOWS, INC., Appellant, v. Duane HART d/b/a Plumbing by Hart, Anderson Electric, Inc., Scotty’s, Inc., Crown Drywall, Inc., Joseph A. Urban, and Chuck Carlin d/b/a Nationwide Carpet, Appellees.
    No. 79-2288.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 1980.

      Granville H. Crabtree, Jr. of Crabtree, Butler, Syprett & Meshad, Sarasota, for appellant.
    Charles J. Cheves of Cheves & Rapkin, Venice, for appellee Duane Hart d/b/a Plumbing by Hart.
    Stephen F. Ellis of Robertson, Robertson & Pitchford, Sarasota, for appellee Anderson Elec., Inc.
    Richard Benjamin Wilkes of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O’Neill, Tampa, for appellee Scotty’s, Inc.
    Johnson S. Savary and Sandy A. Levitt of Kirk, Pinkerton, McClelland, Savary & Carr, Sarasota, for appellee Crown Drywall, Inc.

      Ezra J. Regen, Sarasota, for appellee Joseph A. Urban.
   BOARDMAN, Judge.

Ringling Bros.-Barnum & Bailey Combined Shows, Inc., defendant owner below, appeals an amended final judgment against it awarding plaintiff lienor/appellee Duane Hart d/b/a Plumbing by Hart, and defendant lienors/appellees Anderson Electric, Inc., Scotty’s, Inc., Crown Drywall, Inc., and Joseph A. Urban the full amounts owing to them. We affirm.

The trial court correctly awarded Hart, Scotty’s, and Crown the full amount of their claims rather than only a proportionate amount of the undisbursed funds, notwithstanding the untimely filing of their notices to owner required by Section 713.07, Florida Statutes (1977). The purpose of the notice to owner is to establish priority, not entitlement, for lienors who satisfy the section. Crane Co. v. Fine, 221 So.2d 145 (Fla.1969); contra, Morgan v. Goodwin, 355 So.2d 217 (Fla. 1st DCA 1978). Consequently, “lienors may give notice to the owner after the expiration of the 45-day period and participate in full, or pro rata, to the extent of such sums as remain due from the owner to the contractor after the payment in full of the ‘priority’ lienors.” Crane Co., 221 So.2d at 152. If priority liens exhaust those funds, the claimant is entitled to nothing. E.E. Dean Snavely, Inc. v. Weatherking, Inc., 343 So.2d 58 (Fla. 4th DCA 1977).

In the instant case appellant failed to file a notice of commencement as required by Section 713.13, which rendered all payments made under the contract improperly paid. § 713.06(3)(a); Wool Wholesale Plumbing Supply, Inc. v. Abdo, 365 So.2d 216 (Fla. 4th DCA 1978). Appellant was therefore subject to liability for lien claims up to the total amount of the contract, an amount which the award to appellees does not exceed. We recognize that our decision requires appellant to pay twice for the same work. While this result may seem harsh, that is the law of this state, and we are bound to follow it.

The awards to Anderson and Urban were also proper. Although Anderson’s lien was not in the form prescribed in Section 713.08(3), there is no showing that Anderson’s error adversely affected appellant. The trial court therefore acted within its discretion in enforcing Anderson’s lien. § 713.08(4)(a), Fla.Stat. (1977). Similarly, Urban’s tardiness in filing his claim of lien was not shown to have prejudiced appellant; thus, the trial court was correct in not finding his claim voidable. § 713.08(4)(c).

Finally, we agree with the trial court’s ruling that nothing in the separate contract between Urban and appellant constituted a waiver of Urban’s mechanic’s lien rights.

Accordingly, the amended final judgment is AFFIRMED.

SCHEB, C. J., and OTT, J., concur.

      . This will no longer be so for lienors whose service and materials are furnished subsequent to July 1, 1978, the effective date of the following amendment to Section 713.06(2)(a): “[T]he failure to serve the notice [of intent to claim a lien] shall be a complete defense to payment by any person, except a person with whom the lienor failing to serve the notice has a contract.” § 713.06(2)(a), Fla.Stat. (1979). See Sarasota Commercial Refrigeration & Air Conditioning, Inc. v. Schooley, 381 So.2d 1141 (Fla. 2d DCA 1980).


text:
    Glenn A. SWOFFORD, Appellant, v. CITY OF JASPER and U. S. Fidelity & Guaranty Co., Appellees.
    No. PP-329.
    District Court of Appeal of Florida, First District.
    Sept. 12, 1980.
    Rehearing Denied Oct. 20, 1980.

      Richard B. Davis, Jr., Jasper, for appellant.
    Charles Vocelle of Brannon, Brown, Norris, Vocelle & Haley, P.A., Lake City, for appellees.
   PER CURIAM.

AFFIRMED.

WENTWORTH and JOANOS, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.