author: LETTS, Chief Judge. HURLEY, Judge, BERANEK, Judge,

text:
    Roy Anthony BORGES, Appellant, v. STATE of Florida, Appellee.
    No. 78-2249.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1981.
    Rehearing Denied April 1, 1981.

      Richard L. Jorandby, Public Defender, Tatjana Ostapoff, Asst. Public Defender and Bruce A. Zeidel, West Palm Beach, as amicus curiae, and Roy Anthony Borges, in pro. per.
    Jim Smith, Atty. Gen., Tallahassee and Russell S. Bohn and Mark Horn, Asst. At-tys. Gen., West Palm Beach, for appellee.
   LETTS, Chief Judge.

The Appellant was convicted of and sentenced to, over forty years imprisonment for four separate offenses, to wit: burglary with a dangerous weapon, possession of burglary tools, carrying a concealed firearm and possession of a firearm by a felon. He appeals claiming that the single transaction rule and Double Jeopardy prohibit these multiple sentences and convictions. We affirm.

We commence by noting that the instant information was most subtly drawn by one fully cognizant of all the nuances of Brown v. State, 206 So.2d 377 (Fla.1968).

Addressing ourselves initially to the question of whether there can be separate sentences imposed for burglary and possession of burglary tools, we are of the opinion that the two are distinct and separate crimes for which two convictions and two sentences are proper. See D’Agostino v. State, 334 So.2d 99 (Fla. 3d DCA 1976). Section 810.06 of the Florida Statutes (1979) defines the separate crime of possession of burglary tools and only requires possession of such tools with intent to use the same to commit a burglary. The language is quite clear that the crime is complete if the possession and intent can be proved and there need never be an actual burglary or even an attempt to burgle.

On the other hand, it is not necessary to possess any burglary tools to commit an actual burglary. All that is required is an entering or remaining on nonpublic premises without permission and with intent to commit an offense. Thus it is that in the count of the information now before us charging burglary with a dangerous weapon, there is no mention whatever of burglary tools. Likewise in the count on unlawful possession of burglary tools with intent to use the same, there is no mention of either an actual burglary or an attempted burglary-

Applying all of the foregoing to the four Brown categories on lesser included offenses, we do not find in the case at bar:

1. Any crime divisible into degrees.
2. Any attempt to commit offenses.
3. Any offense necessarily included in the offense charged.

Thus the only applicable possibility involves an offense which may or may not be included depending on the accusatory pleading and the evidence. As the Supreme Court said about this fourth category in Brown:

“... The trial judge must examine the information to determine whether it alleges all of the elements of a lesser offense ....” Id. 206 So.2d at 383.

We have done that here and determine that no allegation of possession of burglary tools is found in the count charging burglary and no allegation of any of the elements of burglary exist in the count charging the appellant with possession of burglary tools. Thus we conclude the conviction and sentencing on both charges were proper.

Without repetition in laborious detail, we can apply the same logic to the crime of carrying a concealed weapon. The charge in that count makes no reference to possession of burglary tools nor any whatever to a burglary with a weapon. Neither does it make reference to possession by a convicted felon. Obviously we do not need a felon, burglary tools, a burglary or an attempt to burgle to complete the crime of carrying a concealed weapon. The crime is complete if any one of us, including all law abiding citizens, carries a concealed firearm, unless we qualify under the exceptions set forth in subsections (3) and (4) of Section 790.01, Florida Statutes (1979).

Furthermore, as to the count on possession of a firearm by a convicted felon, appropriate language as to that, is all that is in the charge. There is no reference to burglaries, burglary tools or concealed weapons with the lone exception of the necessary language detailing a previous conviction for breaking and entering with intent to commit grand larceny.

Finally, it is true that the burglary here charged was one carried out with a dangerous weapon, but that count did not set forth that the burglar was a convicted felon nor did it suggest that the weapon used was concealed.

As to the single transaction rule, we are not unaware of our own decision in Bruton v. State, 326 So.2d 186 (Fla. 4th DCA 1975) in which we sua sponte raised and held the possession of burglary tools and the attempted breaking and entering of an automobile to involve a facet or phase of the same criminal transaction for which only one sentence could be imposed. However, the principal case relied on for that conclusion, Kirkland v. State, 299 So.2d 54 (Fla. 1st DCA 1974), was reversed by the Supreme Court in State v. Kirkland, 322 So.2d 480 (Fla.1975); also see Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975). We are equally cognizant of our recent holding in Haynes v. State, 377 So.2d 771 (Fla. 4th DCA 1979). However, Haynes hinged on a finding of a Brown category four, not an application of the single transaction rule.

After the rendering of most of the above cited cases, Florida enacted Section 775.021(4) effective October of 1976 which reads as follows:

Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.

According to the appellant this statute not only abrogates the single transaction rule, but flies in the face of the Double Jeopardy clause of the Fifth Amendment. Whatever our thoughts on this might have been, such a statute appears to have received a blessing from the Supreme Court of the United States in an opinion issued after the appellant’s brief was filed. See Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). Also see Fundak v. State, 362 So.2d 295 (Fla. 2d DCA 1978). However, our own Supreme Court very recently decided in White v. State, 377 So.2d 1149 (FIa.1979) that one convicted of robbery and the display of a firearm during the commission of that same robbery cannot be sentenced for both crimes. The opinion makes no mention whatever of Section 775.021(4), but we have independently determined that the record lodged in our Supreme Court reveals that the robbery in White was committed on December 7, 1974, before the statute was enacted. Nor does the White opinion reveal what wording was used in the accusatory pleading but it seems to us that the accusatory pleading would almost certainly activate a Brown category four lesser included offense. Despite this available distinction, the White decision chooses as the premise for its conclusion not a Brown category lesser included offense but two prior cases decided before the advent of Section 775.-021(4) which are predicated on the single transaction rule. This troubles us.

Accordingly, deeming the matter to be of great public importance we hereby certify the following questions to the Supreme Court,

(1) HAS THE ADVENT OF FLORIDA STATUTE 775.021(4) DONE AWAY WITH THE SINGLE TRANSACTION RULE?
(2) IS CATEGORY 4 OF BROWN V. STATE, 206 So.2d 377 (Fla.1968), ADEQUATE TO SAFEGUARD A DEFENDANT’S RIGHT NOT TO BE SUBJECT TO DOUBLE JEOPARDY?

ALL FOUR CONVICTIONS AND SENTENCES ARE AFFIRMED.

BERANEK and HURLEY, JJ., concur specially with opinion.

HURLEY, Judge,

specially concurring.

I concur in the analysis and decision of the court, but write separately to express the view that (1), with the enactment of Section 775.021(4), Florida Statutes (1977), the single transaction rule is no longer extant in Florida, and (2), the definition of a lesser included offense as set forth in category 4 of Brown v. State, 206 So.2d 377 (Fla.1968), is subject to such capricious application as to be inadequate to satisfy the demands of the Double Jeopardy Clause.

I

The single transaction rule is a court-formulated rule of limitation. It first appeared in Simmons v. State, 151 Fla. 778, 10 So.2d 436 (1942), a case which seemed to rely on fundamental fairness and which held that there could be but one sentence for the highest offense charged when multiple counts of an information charged different aspects of the same criminal transaction. Thus emerged a rule which is deceptively simple to state but which has virtual kaleidoscopic application. It must be noted, however, that when the court decided Simmons, the Florida Legislature had not definitively expressed itself on the subject of cumulative punishments for the violation of different statutes during a single criminal episode.

The absence of clear legislative direction was critical to the decision in Simmons. Without a contrary indication, the rule of lenity presumes that the legislative branch “does not intend to punish the same offense under two different statutes.” Whalen v. United States, 445 U.S. 684, 691, 100 S.Ct. 1432, 1438, 63 L.Ed.2d 715 (1980). Thus, the court in Simmons properly employed a longstanding rule of statutory construction and crafted the single transaction rule.

The legislative landscape was dramatically altered, however, on October 1,1976 and again with minor revision on August 2, 1977, when the Florida Legislature enacted Section 775.021(4), Florida Statutes (1977), which states:

Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.

Section 775.021(4) embodies a deliberate legislative decision to take a fresh course in the field of sentencing. The single transaction rule was jettisoned. “ ‘The legislature is presumed to know the existing law when it enacts a statute. And it is presumed that the legislature was acquainted with the judicial construction of former laws on the subject concerning which some statute is enacted.’ ” Stern v. Miller, 348 So.2d 303, 308 (Fla.1977), quoting 30 Fla.Jur.Statutes § 110. Furthermore, once expressed, the legislative will must prevail. The extent and severity of punishment “are peculiarly questions of legislative policy.” Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1285, 2 L.Ed.2d 1405 (1958). “[WJhether punishments imposed by a court after a defendant’s conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized.” Whalen v. United States, supra, 445 U.S. at 688, 100 S.Ct. at 1436.

Gore and Whalen emphasize the primacy of the legislative branch in the realm of sentencing. In Gore the Supreme Court upheld the imposition of six separate sentences stemming from two drug sales. The trial court had imposed sentences of 1 to 5 years for each of the six convictions; the first three sentences to be served consecutively and the second three sentences to be served concurrently. The Court affirmed on the finding that the enactment of three different statutes dealing with illicit drug sales “reveals the determination of Congress to turn the screw of the criminal machinery — detection, prosecution and punishment — tighter and tighter.” 357 U.S. at 390, 78 S.Ct. at 1283. Indeed, even the dissent conceded that “[in] every instance the problem is to ascertain what the legislature intended.” Id. at 394, 78 S.Ct. at 1285 (Warren, C. J., dissenting).

Whalen v. United States, supra, also dealt with cumulative punishments for the violation of separate statutes during a single criminal transaction. Whalen was convicted of rape, and of killing the victim in the perpetration of the same rape. He was sentenced to consecutive terms of imprisonment of 20 years to life for first degree murder, and of 15 years to life for rape. On appeal, the United States Supreme Court reversed and remanded for resentenc-ing, finding that the rape conviction was barred since Congress, in enacting the D.C. Code provision, intended that rape be considered a lesser included offense to the defense of killing a human being in the course of committing a rape. The court clearly noted, however, that had Congress desired to allow the imposition of consecutive sentences for these crimes it had the power to do so and the exercise of such power would not have contravened the Double Jeopardy Clause of the Fifth Amendment.

The Double Jeopardy Clause affords protection in three distinct situations. First, it protects against a second prosecution for the same offense after an acquittal. Second, it protects against a second prosecution for the same offense after a conviction. Third, it protects against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980).

The only function the Double Jeopardy Clause serves in cases challenging multiple punishments is to prevent the prosecutor from bringing more charges, and the sentencing court from imposing greater punishments, than the Legislative Branch intended.
. .. [T]he question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed. Whelan v. United States, supra, 445 U.S. at 697, 100 S.Ct. at 1441 (Blackmun, J., concurring in the judgment).

Turning again to Florida’s enactment, it is clear that Section 775.021(4), Florida Statutes (1977), does not alter the traditional discretionary function of the trial court in deciding whether to adjudicate a defendant or, once adjudicated, whether the sentences are to be served concurrently or consecutively. However, once the court has determined to adjudicate and sentence, the statute imposes a mandatory requirement that the defendant “be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode.” This is the essence of the legislative mandate. Section 775.021(4) represents the considered judgment of the Florida Legislature to exercise its prerogative in the area of sentencing. It constitutes a renunciation of the single transaction rule, and viewed against the analytical backdrop of Whelan v. United States, supra, it comports with the Double Jeopardy Clause of the Fifth Amendment.

II

Section 775.021(4) utilizes the phrase “lesser included offenses,” a term defined by Brown v. State, 206 So.2d 377 (Fla.1968). There the court held that lesser included offenses may be subdivided into four categories. In explanation of the last category, the court said:

This fourth category comprehends those offenses which may or may not be included in the offense charged, depending upon, (a) the accusatory pleading, and (b) the evidence at the trial. In this category, the trial judge must examine the information to determine whether it alleges all of the elements of a lesser offense, albeit such lesser offense is not an essential ingredient of the major offense alleged. If the accusation is present, then the judge must determine from the evidence whether it supports the allegation of the lesser included offense. If the allegata and probata are present then there should be a charge on the lesser offense. Id. at 383.

While I do not think that Brown-category 4 is inadequate in the case at bar, I join with Judge Beranek in expressing concern that category 4 of Brown may be too technical and arbitrary to satisfy the demands of the Double Jeopardy Clause in all instances. The recent case of Portee v. State, 392 So.2d 314 (Fla. 2d DCA 1980), provides an apt illustration. Starting from the premise that “possession [of contraband] is not an essential aspect of the sale,” the court focused its attention on the charging document which alleged sale of cannabis in count one, and possession of cannabis in count two. If count one had alleged possession with intent to sell, then possession would have been a Brown-category 3 lesser included offense, and only one conviction and sentence would have been permissible. But because the first count alleged only sale, the court reasoned under strict Brown interpretation that possession was not a lesser included offense.

The difficulty I have with the court’s analysis is that it bears no relationship to the facts of the case. As I read them, the state proved that Portee possessed cannabis only while he consummated the sale. Thus, under the facts as proved, possession was a necessary part of the sale. In this context Brown-category 4 analysis seems wholly artificial. Furthermore, it is repugnant to the notion of a free society that constitutional protections can be stripped away by a scrivener’s acuity in drafting a charging document. Cf. Aiello v. State, 390 So.2d 1205 (Fla. 4th DCA 1980).

The Third District Court of Appeal in Anderson v. State, 392 So.2d 328 (Fla. 3d DCA 1981), dealt with the same issue presented in Portee, but seems to have fashioned a different test, one which I submit is realistic and passes constitutional muster. Like Portee, Anderson was charged with sale and possession. He plead nolo contendere and was convicted and sentenced for both counts. The Court of Appeal reversed and vacated the conviction and sentence for possession, finding that it was a Brown-category 4 lesser included offense. Unfortunately the court’s opinion does not contain the precise language of the information, but the opinion implies that the verbiage is the same as in Portee. Nonetheless, the court did not focus its attention on the wording of the allegation, but instead, placed primary emphasis on the factual basis of the plea which demonstrated “that the same controlled substance was possessed and sold.” Thus, the court reasoned, possession was a lesser included offense of sale which precluded a conviction and sentence for possession.

It is well to remember that Brown was conceived as a protection of the defendant’s right to have the jury instructed on lesser included offenses. It guarantees that a defendant will receive the benefit of the jury’s “inherent pardon power.” State v. Abreau, 363 So.2d 1063 (Fla.1978). But, I suggest we are extending Brown far beyond its intended limits when we apply it to double jeopardy analysis. Moreover, it is inadequate for this purpose. While the Double Jeopardy Clause permits the legislature to authorize cumulative punishments for the violation of separate statutes, Whalen v. United States, supra category 4 of Brown effectively places this power in the hands of the executive. In my view, it is constitutionally impermissible for a state attorney to have the power to substantially increase potential punishment by arbitrarily omitting words from one count of an information only to charge what would have been the lesser included offense in a separate count. See e. g., Portee v. State, supra. However, since the defendant in the case at bar was sentenced in accord with Florida Statute 775.021(4), and because he failed to demonstrate that any offense herein is a “lesser included offense” — either as alleged or as proved — I join in the judgment of the court.

BERANEK, Judge,

concurring specially:

I concur in the opinion of Judge Letts but write separately to comment on the complexity which the courts seem compelled to impress upon this area of the law. I frankly admit that Whalen v. United States, supra, and Illinois v. Vitale, supra, do not clear up this area at all for me.

It does seem that Section 775.021(4), Florida Statutes (1977), abrogates the “single transaction rule” and replaces it with a rule of “lesser included offenses” as a limitation on cumulative sentencing for different facets of the same crime. Any consideration of lesser included offenses leads immediately to the four categories of such offenses established in Brown v. State, 206 So.2d 377 (Fla.1968). The Brown category four offenses present a particular difficulty in the context of this case. In a single count information, a defendant can only be punished for the highest crime of which he is convicted. If, instead, the State charges defendant in a multi-count information, he may be sentenced separately on each count if the counts by artful allegation are not lesser included offenses of the other counts under Brown. Under category four it is crucial to determine what is not alleged rather than what is alleged. This, in my opinion, places too much stress on the technicalities of the charging document and too little stress on the statutes defining the crimes in question. A defendant who carries a firearm while committing a burglary should not be subject to a sentence for armed burglary and an additional sentence for carrying a concealed firearm depending entirely upon the wording of the information. Frankly, I would prefer that armed burglars keep their guns concealed.

Were it not for Section 775.021(4), Florida Statutes (1977), I would hold the defendant was properly convicted and sentenced separately for the crimes of (1) burglary with a dangerous weapon, (2) possession of burglary tools (the tools were not the weapon), and (3) possession of a firearm by a convicted felon, but improperly sentenced for the crime of carrying a concealed firearm. It does, however, appear that carrying a concealed firearm was not a lesser included offense under the information as written and under Brown v. State, supra. Thus despite the fact it was part of a single transaction, the defendant may be separately punished. Although it basically looks like the same crime to me, the Legislature has spoken to the contrary. I thus concur in the majority’s affirmance.

      . The original version omitted the word “committed” which we have emphasized. This omission was corrected in the August 2, 1977 amendment.

      . In a case with facts similar to White, we prefer the reasoning of the Third District in Hearns v. State, 378 So.2d 70 (Fla. 3d DCA 1979); however the crimes in Hearns occurred after the adoption of the statute. We would also refer to Justice Alderman’s dissent in Johnson v. State, 366 So.2d 418 (Fla.1978).

      . Accordingly, where two statutory offenses are not the same under the Blockburger test [Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932)], the sentences imposed “shall, unless the court expressly provides otherwise, run consecutively.” And where the offenses are the same under that test, cumulative sentences are not permitted, unless elsewhere specially authorized by Congress. 445 U.S. at 693, 100 S.Ct. at 1439 (emphasis supplied; footnote omitted).
      The “Blockburger test,” referred to above, traces its roots to the Double Jeopardy Clause and is the principal test for determining whether two offenses are the same for purposes of barring successive prosecutions. It is important to note, however, that while the Blockbur-ger test can prevent successive prosecutions, it does not preclude the imposition of multiple punishments at the same criminal proceeding where the court acts pursuant to an explicit legislative mandate.

      . Rodriquez v. State, 395 So.2d 555 (Fla. 2d DCA 1981); Brainard v. State, 380 So.2d 1302 (Fla. 2d DCA 1980).


source: Caselaw Access Project

author: HURLEY, Judge.

license: Public Domain

text:
    James BEMBANASTE, Appellant, v. CITY OF HOLLYWOOD, Florida, a Municipal Corporation of the State of Florida, and Sam D. Martin, as Police Chief of the City of Hollywood, Florida, Appellee.
    No. 78-2458.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1981.
    Rehearing Denied March 25, 1981.
    Richard L. Kopel, Hollywood, for appellant.
    Sherman Bennett Mayor, City Atty. and Andrew DeGraffenreidt, III, Asst. City Atty., Hollywood, for appellee-City of Hollywood.
   HURLEY, Judge.

James Bembanaste, plaintiff in the trial court, appeals from an adverse summary final judgment. We affirm.

The proof below established that appellant was employed, on a probationary status, as a police officer with the City of Hollywood. On January 3, 1978, he was interrogated by two senior officers of the Hollywood Police Department regarding an incident which involved overtime pay. The next day he received a written notice of termination which stated that he had “failed to satisfactorily complete the required probation.”

Appellant instituted suit against the City and the Chief of Police, contending that (1) he was entitled, as a matter, of right, to a pre-termination hearing, and (2) certain rights guaranteed by Section 112.532(1) et seq., Florida Statutes (1977), had been violated during the interrogation process. Consequently, the complaint prayed for reinstatement with back pay, plus costs and attorney’s fees. Defendants moved for summary judgment noting that the City’s civil service regulations permitted probationary employees to be terminated without cause and without a hearing. The trial court granted summary final judgment for defendants/appellees and this appeal ensued.

Despite the fact that appellant’s complaint alleges violations of rights guaranteed by Section 112.532(1) et seq., commonly known as The Policeman’s Bill of Rights, the record does not disclose that appellant ever sought timely enforcement of those rights pursuant to Section 112.534, Florida Statutes (1977). Cf. West v. State, Depart ment of Criminal Law Enforcement, 371 So.2d 107 (Fla. 1st DCA 1978); Waters v. Purdy, 345 So.2d 368 (Fla. 3d DCA 1977). Moreover, the complaint does not allege that appellant’s termination resulted from an attempt to exercise any of the rights set forth in Section 112.532(1) et seq. See Section 112.532(5). Therefore, we do not reach the issue of whether a probationary police officer is “employed full time” within the meaning of Section 112.531(1) and thus entitled to the protections of the Policeman’s Bill of Rights.

The proof below unequivocally established that Officer Bembanaste was employed on a probationary status. Furthermore, it was shown that the City of Hollywood’s civil service regulation permitted termination of probationary employees without cause and without a hearing. Thus the trial court was correct in determining that no genuine issue of material fact existed to preclude the entry of summary final judgment. See Purdy v. Cole, 317 So.2d 820 (Fla. 3d DCA 1975), appeal dismissed, 303 So.2d 16 (Fla.1976). Accordingly, the judgment is affirmed.

MOORE and BERANEK, JJ., concur.

      . If any agency employing law enforcement officers fails to comply with the requirements of this part, a law enforcement officer employed by such agency who is personally injured by such failure to comply may apply directly to the circuit court of the county wherein such employing agency is headquartered and permanently resides for an injunction to restrain and enjoin such violation of the provisions of this part and to compel the performance of the duties imposed by this part.
      Section 112.534, Florida Statutes (1977).

      . No law enforcement officer shall be discharged; disciplined; demoted; denied promotion, transfer, or reassignment; or otherwise discriminated against in regard to his employment, or be threatened with any such treatment, by reason of his exercise of the rights granted by this part.
      Section 112.534, Florida Statutes (1977).

      . As used in this act:
      (1) “Law enforcement officer” means any person, other than a chief of police, employed full time by any municipality or this state or any political subdivision thereof, whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, traffic, or highway laws of this state. (Emphasis supplied.)
      Section 112.531(1), Florida Statutes (1977).

      . See Judge Booher’s thorough opinion in Longo v. City of Hallandale, 42 Fla.Supp. 53, 56-59 (Fla. 17th Cir. Ct. 1975), for the legislative history and purpose of the statute.

      . We further note that appellant’s complaint did not allege “stigmatization” such as would require a hearing on due process grounds. See Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977).


author: HERSEY, Judge.

text:
    STATE of Florida, Appellant, v. Richard BIRS, a/k/a “Richie” and Dr. Leonard Rosenthal, a/k/a “Doc”, Appellees.
    No. 79-2335.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1981.
    Rehearing Denied March 25, 1981.

      Michael J. Satz, State Atty. and Mark Speiser, Asst. State Atty., Fort Lauderdale, for appellant.
    Robert C. Stone, of Stone & Dell, P. A., Hollywood, for appellees.
   HERSEY, Judge.

The state appeals from an order granting a motion to suppress evidence obtained as the result of a wiretap.

The order in question suppressed use of the evidence on three grounds. First, the court found that the application for an order of the circuit court authorizing the intercept was made by a police officer on special assignment to the State Attorney’s office. It was held that such an application could be made only by the State Attorney; thus, the procedure was defective and the evidence tainted. Second, the court determined that the application and affidavit were insufficient to establish probable cause. Third, the court held that the application and affidavit failed to establish that normal investigative procedures had been tried and failed or were too dangerous, as required by Section 934.09(3) Florida Statutes (1979).

We conclude that these findings are each erroneous and we therefore reverse.

It is now settled that federal law has preempted the ability of certain state officials to authorize an application for the interception of oral communications. That federal law, referring to the “principal prosecuting attorney” (18 U.S.C. Section 2516(2)), when read in the context of Section 934.07 Florida Statutes (1975), refers to the appropriate State Attorney and precludes the exercise of that power by a general class of prosecutors known as assistant state attorneys. State v. Daniels, 389 So.2d 631 (Fla.1980). Unfortunately, the precise semantical question posed by this appeal is not expressly dealt with by the Daniels court. Perhaps this is either because the answer has always been assumed or the problem has been considered illusory. In any event, the remaining question is whether the state attorney must make the application or whether it is enough that the application has been authorized by the state attorney. In the instant case the state attorney authorized, but did not make, the application. The Florida Statute, Section 934.07, is rather clear that “any State Attorney may authorize ...” such an application. The federal statute, on the other hand, authorizes the principal prosecuting attorney of any state to “.. . apply to such judge ...” for an appropriate order. Title 18, United States Code, Section 2516(2). The dichotomy between these two approaches may be more imagined than real and, in the absence of a clear mandate from the Supreme Court of Florida, we choose to follow the second district and hold that written authorization by a state attorney of an application for intercept will be sufficient. State v. McGillicuddy, 342 So.2d 567 (Fla.2d DCA 1977). That procedure was followed in the case at bar and the intercept was therefore properly authorized.

Next, the trial court held that the affidavit was insufficient to establish probable cause. The sufficiency of an affidavit to establish the necessary elements to support issuance of a wiretap order must be determined from a reading of the affidavit as a whole, not from bits and pieces read in isolation. Rodriguez v. State, 297 So.2d 15 (Fla.1974). In assessing probable cause the issuing magistrate must use his own judgment based on the entire picture presented to him and utilize his common sense. When this procedure is followed, his determination is conclusive in the absence of arbitrariness. United States v. Weinrich, 586 F.2d 481 (5th Cir. 1978); cert. denied, 440 U.S. 982, 99 S.Ct. 1792, 60 L.Ed.2d 243 (1979).

The order granting appellees’ motion to suppress discloses that the trial court isolated certain allegations and determined that they were insufficient to establish probable cause. Further, the trial court did not give any deference to the issuing magistrate’s determination of probable cause, rather it made an independent determination from the affidavit that probable cause was not established. Yet, there is no indication that the issuing magistrate was arbitrary and in fact the affidavit contains extensive factual allegations on which a determination of probable cause could be based.

The trial court also determined that the affiant unintentionally misinterpreted a conversation between appellee, Birs, and a confidential informant and that this was improper because the confidential informant knew the interpretation to be false. Specifically, the affiant represented that the reference in the conversation to “that thing we went up to West Palm about” was a reference to narcotics. The confidential informant testified that although he and Birs went up to West Palm to look at cocaine, when they arrived they didn’t see any. Nevertheless, the “thing” they went to West Palm about was cocaine even though it wasn’t there. Thus, the trial court’s finding that the issuing magistrate was misled by a false interpretation is not supported by the record.

Accordingly we determine that the affidavit was sufficient to establish probable cause.

The third basis for suppression of the evidence below was a supposed failure to comply with Section 934.09(3)(e), Florida Statutes (1979).

The statutory requirement that normal investigative procedures be exhausted prior to application for a wiretap order must be reviewed in a practical and common sense fashion. It is not necessary that all possible techniques or alternatives to wiretapping be first exhausted. The showing must be that other reasonable investigative procedures have been tried and either have failed or appear likely to fail or to be too dangerous. If other techniques have not been tried, the reasons as to why they reasonably appear unlikely to succeed must be demonstrated. State v. Daniels, supra.

The trial court here determined that the testimony revealed, contrary to allegations in the affidavit, that the confidential informant had Birs’ trust and confidence and that the confidential informant or surveillance could have successfully revealed the identity of Birs’ associates in the smuggling operation being investigated.

However, the informant testified that he met some of Birs’ “friends” but knew only their nicknames. He was not allowed to visit Birs’ home at his leisure, but had to call. Although the informant was in Birs’ confidence, Birs would not identify the persons involved in the smuggling operations. The informant could identify persons with whom Birs dealt but could not identify their roles, if any, in the smuggling venture.

Testimony also revealed that physical surveillance was dangerous to the investigation because Birs had spotted surveillance vehicles.

Thus, wiretapping appears the most reasonable investigative technique under the circumstances to secure other and conclusive evidence of criminal involvement. State v. Daniels, supra.

Based upon the foregoing, we reverse the order granting the motion to suppress the intercepted evidence and remand for further appropriate proceedings.

REVERSED AND REMANDED.

MOORE and GLICKSTEIN, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    MERRILL LYNCH, PIERCE, FENNER AND SMITH, INC., Appellant, v. Leroy RITCHEY and Dorothy Ritchey, Appellees.
    No. 80-1213.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 1981.

      Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellant.
    William H. Shields and Robert L. Donald of Pavese, Shields, Garner, Haverfield, Kluttz & Cottrell, Fort Myers, for appellees.
   HOBSON, Acting Chief Judge.

Appellant Merrill Lynch, Pierce, Fenner and Smith, Inc. (Merrill Lynch) was plaintiff below in an action for rescission. Although Merrill Lynch was successful in obtaining rescission of a transaction between the parties, the trial court granted a setoff against appellant’s recovery in the amount of $3,969.23 for the purpose of paying ap-pellees’ attorney’s fees. Merrill Lynch appeals only that portion of the final judgment awarding the setoff for attorney’s fees.

Inasmuch as these parties are before us for the second time, a brief history is in order. Leroy and Dorothy Ritchey telephoned an employee of Merrill Lynch and arranged for the sale of 500 shares of United Utilities of Kentucky common stock. After receiving a quote on the value of the stock from the employee, the Ritcheys delivered the stock certificate to Merrill Lynch and subsequently received a check in the amount of $11,229.74 in connection with the sale of the stock.

The stock actually owned by the Ritcheys was worthless. Merrill Lynch had erroneously contemplated a transaction in Kentucky Utilities common stock instead of United Utilities of Kentucky common stock. When Merrill Lynch discovered its error, it demanded that the funds be returned. The Ritcheys refused and Merrill Lynch instituted a rescission action. In that action, Merrill Lynch obtained a summary judgment which ordered a rescission of the transaction. On appeal, this court reversed, holding that if the Ritcheys were not aware of the error and if the mistake was fully due to the inexcusable negligence of Merrill Lynch, these factors might preclude the equitable remedy of rescission.

On remand, the lower court found that the mistake was not due to Merrill Lynch’s inexcusable neglect. Rescission of the transaction was again decreed but the court granted a setoff against Merrill Lynch’s recovery for the purpose of paying the Rit-cheys’ attorney’s fees.

The Florida Supreme Court stated in Codomo v. Emanuel, 91 So.2d 653, 655 (Fla.1956):

This court is committed to the doctrine that attorneys’ fees cannot be taxed as costs in any cause unless authorized by contract or legislative authority.

We recognize that certain exceptions have been carved from this general rule; however, none of the exceptions apply to the case at bar. Therefore, in the absence of any contractual or statutory mandate, we hold that the trial court erred in allowing a setoff against Merrill Lynch’s recovery for the purpose of paying the Ritcheys’ attorney’s fees.

The portion of the final judgment which ordered rescission of the transaction between the parties is affirmed and that portion which granted the setoff is reversed.

AFFIRMED IN PART; REVERSED IN PART.

GRIMES, J., and BUCK, MORISON, Associate Judge, concur.

      . A more complete statement of the facts may be found in Ritchey v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 361 So.2d 438 (Fla.2d DCA 1978).

      . Attorney fees may be recoverable in the absence of contract or statute when a fund has been created or brought into court; in actions for wrongful attachment, false imprisonment, malicious prosecution and slander of title. Glusman v. Lieberman, 285 So.2d 29, 31 (Fla. 4th DCA 1973). Attorney fees may be allowed where a partner is forced to bring suit for dissolution of the partnership and an accounting. A. J. Richey Corp. v. Garvey, 132 Fla. 602, 182 So. 216 (1938).


author: PER CURIAM.

text:
    Douglas McArthur ROWE, Appellant, v. STATE of Florida, Appellee.
    No. WW-161.
    District Court of Appeal of Florida, First District.
    Feb. 27, 1981.
    James L. Harrison of Harrison & Porter, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   On Motion

PER CURIAM.

The state petitions for a writ of certiorari to review the order of the trial court admitting Rowe to bail pending appeal after he was convicted of first degree murder and sentenced to life imprisonment. Pursuant to Florida Rules of Appellate Procedure 9.040(c) and 9.140(e)(4) we treat the petition as a motion to review the order.

The state argues that under Fla.R. Crim.P. 3.691 (1977) the trial court has no discretion to grant bail to a person convicted of a capital offense. The defendant urges that the rule, interpreted in light of Stalnaker v. State, 126 Fla. 407, 171 So. 226 (1936), Gray v. State, 54 So.2d 436 (Fla. 1951) and Hedden v. State, 275 So.2d 52 (Fla.2d DCA 1973), leaves discretion in the trial judge when one charged and convicted of a capital offense is sentenced to life imprisonment. Defendant further urges that Section 924.065(3), Florida Statutes (1979), authorizes judicial discretion to grant bail for all appellants other than those who have been sentenced to death.

Rule 3.691 states:

“(a) All persons who have been adjudicated guilty of the commission of any offense, not capital, may be released, pending review of the conviction, at the discretion of either the trial or appellate court, applying the principles in Younghans v. State, 90 So.2d 308 (Fla.1956)

Because we find no ambiguity in the language of the rule, we are compelled to conclude that the trial court does not have discretion to grant bail pending appeal to those convicted of a capital offense even if sentenced to life imprisonment.

When construing court rules, the principles of statutory construction apply. Syndicate Properties, Inc. v. Hotel Floridian Company, 94 Fla. 899, 114 So. 441 (1927); Bryan v. State, 94 Fla. 909, 114 So. 773 (1927). Where the language to be construed is unambiguous, it must be accorded its plain and ordinary meaning. Carson v. Miller, 370 So.2d 10 (Fla.1979), Reino v. State, 352 So.2d 853 (Fla.1977). Here, the language used indicates a clear intention to limit the discretion of the trial judge as to those persons convicted of a capital offense. The only ambiguities arise from the attempt to impose upon this plain language decisions which are inapplicable. Both Stal-naker and Gray were decided long before the Florida Rules of Criminal Procedure were enacted and at a time when, under the common law, post conviction bail was entirely discretionary with the trial court. Younghans v. State, 90 So.2d 308 (Fla.1956). Fla.R.Crim.P. 1.130 (1967), now Rule 3.691, formalized this discretion. However, by modifying “an offense” with the words “not capital” the court eliminated discretion as to capital offenders. The court is presumed to know the existing law and procedures, Stanfill v. State, 360 So.2d 128 (Fla.lst DCA 1978), and since the rule represents a clear departure from past practice, we must conclude the court intended the change.

Hedden v. State, 275 So.2d 52 (Fla.2d DCA 1973) has been interpreted in the federal courts as allowing bail pending appeal to those convicted of capital offenses but sentenced to life imprisonment. Escandar v. Ferguson, 441 F.Supp. 53 (S.D.Fla.1977); Powers v. Schwartz, 448 F.Supp. 54 (S.D. Fla.1978), Rev’d other grounds, 587 F.2d 783 (5th Cir. 1979). We cannot agree with this interpretation. When Hedden was decided, capital punishment had been abolished by the U. S. Supreme Court. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). In Donaldson v. Sack, 265 So.2d 499 (Fla.1972), the Florida Supreme Court, analyzing Furman’s impact on various aspects of the criminal justice system, concluded Furman did not affect the statutory or constitutional provisions regarding pretrial bail because the limitations in Article I, Section 14, Florida Constitution, extended to those charged with an offense punishable by life imprisonment. Although the court did not discuss the impact of Furman on post conviction bail as provided for in Fla.R. Crim.P. 3.691 (1972), the rationale of the Donaldson analysis is that without capital punishment there are no capital offenses and all of the appurtenant substantive and procedural regulations have no effect. Reino v. State, 352 So.2d 853 (Fla.1977). Under this analysis then, when Hedden was decided, there were no capital offenses and Rule 3.691 (1972) would have allowed the trial court to grant bail to persons convicted of first degree murder but sentenced to mandatory life.

Finally, we are not persuaded that Section 924.065(3), Florida Statutes (1979), restores this discretion to the trial court. Section 924.065(3), Florida Statutes (1979), states: “An appellant who has been sentenced to death shall not be released on bail.” Presumably then, defendant argues, by implication all other appellants shall, or at least may be admitted to bail pending appeal. However, reading this section in pari materia with Section 903.132, Florida Statutes (1979), it is apparent that the legislature did not so intend. Prior to 1976, Rule 3.691 (1972) allowed the trial court discretion with regard to post conviction bail even if the person previously had been convicted of a felony. The legislature, in 1974, attempted to eliminate this discretion by Section 903.132 prohibiting the release on bail of an appellant who had previously been convicted of a felony. In Bamber v. State 300 So.2d 269 (Fla.2d DCA 1974), the court ruled that the rule superseded the statute. See also, Rolle v. State, 314 So.2d 624 (Fla.1st DCA 1975). Subsequent to these decisions, the legislature, Chapter 76-138, Section 2, Laws of Florida by appropriate vote repealed the provisions of the rule insofar as they were inconsistent with the statute. In so doing, the legislature left intact the portion of the rule which eliminated discretion as to convicted capital offenses. Had the legislature intended that the court have this discretion, it could have also repealed the relevant portions of the rule. We decline to imply such an intention from Section 924.065(3), Florida Statutes (1979).

The following question is certified to the Florida Supreme Court as one of great public importance, Rule 9.030(a)(2)(A)(v), Florida Rules of Appellate Procedure:

Does Fla.R.Crim.P. 3.691 prohibit the granting of bail pending appeal to a person convicted of a capital offense when that person is sentenced to life imprisonment?

The order granting bail is REVERSED.

MILLS, C. J., and BOOTH and SMITH, JJ., concur.

      . “(a) Offenses Less Than Capital
      All persons in custody for the commission of an offense, not capital, shall before conviction, be entitled as of right to be admitted to bail, and after convicted bail may be granted in the discretion of either the trial or appellate court.”


text:
    AMI INSURANCE AGENCY, Appellant, v. Lydia Lamothe ELIE and Industrial Fire & Casualty Insurance Company, Appellees.
    Nos. 79-961, 79-1176 and 79-1747.
    District Court of Appeal of Florida, Third District.
    March 3, 1981.
    Adams & Ward and Robert C. Ward and James W. Kaufman, Miami, for appellant.

      Broad & Cassel and Patricia L. Lebow, Bay Harbor, for appellees.
    Before HUBBART, C. J., and NESBITT, J., and MELVIN, WOODROW M. Sr. (Ret.), Associate Judge.
   MELVIN, WOODROW M. Sr. (Ret.), Associate Judge.

The parties will be referred to in the capacity in which they appeared in the trial court.

AMI Insurance Agency, hereinafter referred to as AMI, appeals from certain final orders determining that Industrial Fire and Casualty Company, hereinafter referred to as Industrial, was entitled to indemnification from AMI. We hold that Industrial was not entitled to indemnification because AMI, an insurance broker, was not the agent of Industrial.

The facts reflect that Industrial denied coverage under a policy it had issued to plaintiff Lydia Lamothe Elie, hereinafter referred to as Elie, on the basis that Elie, in her insurance application, had made misrepresentations of material fact in regards to the non-covered commercial use of the insured vehicle. Industrial, via a third party complaint, sought indemnification from AMI, the procuring broker.

Pursuant to a non-jury trial, the lower court entered a final judgment in favor of plaintiff, thus finding that there was coverage under the policy. That judgment has not been challenged by appeal. The court then ruled in favor of Industrial on its third party claim for indemnification. AMI appealed from those final judgments which determined that Industrial was entitled to indemnification both for benefits it had paid to Elie, as well as for attorney’s fees.

We hold that the existence of an agency relationship between AMI and Industrial is a prerequisite to the imposition of the indemnification here complained of. Indemnity is a right which inures to one who discharges a duty owed by him, but which, as between himself and another, should have been discharged by the other and is allowable only where the whole fault is in the one against whom indemnity is sought. This statement of the law, however, does not apply to contract indemnity. City of Jacksonville v. Franco, 361 So.2d 209 (Fla.App.1978); Stuart v. Hertz Corp., 351 So.2d 703 (Fla.1977); Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979). It is clear that an insurance agent who binds a contract of insurance, when he is not so authorized, becomes liable to indemnify the company for losses arising from that contract. Crawford v. DiMicco, 216 So.2d 769 (Fla. 4th DCA 1968).

Under the general rule, which is here applicable, an insurance broker is the agent of the insured in matters connected with the procurement of insurance. Peddy v. Pacific Employers Insurance Company, 246 F.2d 306 (5th Cir. 1956); 3 Couch on Insurance 2d §§ 25.93, 25.94 (1960). An insurance broker is ordinarily employed by the person seeking insurance, and, when so employed, is to be distinguished from the ordinary insurance agent, who is employed by insurance companies to solicit and write insurance. American Casualty Co. of Reading, Pa. v. Ricas, 179 Md. 627, 22 A.2d 484 (1941); Allstate Insurance Co. v. Smoak, 256 S.C. 382, 182 S.E.2d 749 (1971). The fact that the insurer furnished the broker an application blank which was given to the person requesting insurance coverage does not make the broker an agent of the insurer issuing the policy. Id. at 754.

We thus find that AMI was not the agent of Industrial, but was the agent of Elie. Therefore, because there is no principal-agent relationship between AMI and Industrial, the lower court erred in ruling that Industrial was entitled to indemnification from AMI. The cause is thus reversed and remanded to the lower court as to each judgment for indemnity, attorney fees, and costs, with direction to dismiss the third party complaint for any indemnification.

Reversed.

      . Industrial has not appealed from the final judgment upholding insurance coverage and implicitly rejecting Industrial’s claim of misrepresentation by Elie.

      . At the non-jury trial it was revealed that Public Insurance Agency was the general agent of Industrial.


author: SCHWARTZ, Judge.

text:
    Luci VELLANTI, as Personal Representative of the Estate of Frank A. Vellanti, Deceased, Appellant, v. PIPER AIRCRAFT CORP., a Foreign Corporation, Appellee.
    No. 80-1820.
    District Court of Appeal of Florida, Third District.
    March 3, 1981.
    Podhurst, Orseck & Parks and Joel D. Eaton, Spence, Payne, Masington & Gross-man, Miami, for appellant.
    Edna L. Caruso, West Palm Beach, McClure & Gay, Fort Lauderdale, for appel-lee.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

The order transferring venue of this cause from Dade to Collier County is reversed. As demonstrated by the sheriff’s return of service — which is presumptively correct and has not been challenged — the defendant Piper Aircraft Corporation, a foreign corporation, was served through a corporate agent it had designated for that purpose in Dade County. It is therefore clear that venue was properly laid in Dade County under the portion of Section 47.051, Florida Statutes (1979) which provides that “[a]ctions against foreign corporations doing business in this state shall be brought in a county where such corporation has an agent or other representative.” We specifically stated in Majestic II, Enterprises, Inc. v. Butler, 372 So.2d 548, 549 (Fla. 3d DCA 1979) that “the existence merely of an agent, for service of process ..., in a particular county would establish the propriety of venue in that county as to a foreign corporation.” [e. o.] Accord, Greyhound Corp. v. Rosart, 124 So.2d 708 (Fla. 3d DCA 1960); see also, Touchton v. Atlantic Coast Line R. Co., 155 So.2d 738 (Fla. 3d DCA 1963).

Reversed.

      . Clements Naval Stores Co. v. J. S. Betts Co., 85 Fla. 49, 95 So. 126 (1923); Barnes v. Willis, 65 Fla. 363, 61 So. 828 (1913); Rorick v. Stilwell, 101 Fla. 4, 133 So. 609 (1931); see, Klo-senski v. Flaherty, 116 So.2d 767 (Fla. 1959); Winky’s Inc. v. Francis, 229 So.2d 903 (Fla. 3d DCA 1969).


text:
    INTERNATIONAL AIRMOTIVE CORP., a Florida Corporation, and Nigel Winfield, Appellants, v. AEROMECH, INC., a Florida Corporation, Appellee.
    No. 78-906.
    District Court of Appeal of Florida, Fourth District.
    March 4, 1981.
    Gerald Mager of Abrams, Anton, Robbins, Resnick, Schneider & Mager, Hollywood, for appellants.
    No appearance for appellee.
   PER CURIAM.

Reversed on the authority of Goldberger v. Regency Highland Condominium Association, Inc., 383 So.2d 1173 (Fla. 4th DCA 1980).

MOORE, BERANEK and HURLEY, JJ., concur.


author: LETTS, Chief Judge.

text:
    RICHARD’S PAINT MFG., CO., INC., Appellant, v. ONYX PAINTS, INC., a Florida Corporation, and Tri-County Painting, Inc., a Florida Corporation, Appellees.
    No. 79-282.
    District Court of Appeal of Florida, Fourth District.
    March 4, 1981.
    Edna L. Caruso, West Palm Beach and Grady W. White, Melbourne, for appellant.

      Thomas L. Brown, West Palm Beach, for appellees Tri-County Painting, Inc.
   LETTS, Chief Judge.

Originally, a paint dealer sued a customer for an account stated in the sum of $2,458 for paint supplied. The customer counterclaimed for breach of expressed and implied warranties resulting in actual damages incurred. The paint dealer then filed a third-party complaint against the manufacturer of all of the paint supplied to the customer and all the rest of the paint ever purchased by the dealer from the manufacturer, including paint having nothing to do with the subject of the original complaint. The total of all this paint purchased was over $10,000, all of which sum was awarded to the paint dealer.

On appeal, this court ordered that the $10,000 judgment be reduced to $4,000. As a consequence the manufacturer which had paid $11,000 cash into the registry of the court as a supersedeas during the appeal was, by the decision of this court, only obligated to its paint dealer judgment creditor for $4,000.

During the pendency of the above referred to appeal a third party, not privy to the appeal or the original proceedings at the trial level, obtained a money judgment against the paint dealer which latter money judgment for $2,442 was totally unconnected with the controversy between the paint dealer and the manufacturer. Naturally this third party wanted payment from the paint dealer and in efforts to accomplish that purpose filed a Motion for Writ of Garnishment against the manufacturer seeking garnishment of the $10,000 judgment. The propriety of this attempt to garnish a superseded judgment on appeal is not dispositive for the simple reason that the manufacturer failed to answer the writ of garnishment and a default resulted against the manufacturer for the full $2,442 owed to the third party by the paint dealer.

Thereafter the entire matter remained in limbo pending the outcome of the appeal first above referred to which, when rendered, established the manufacturer’s liability to the paint dealer at a maximum of $4,000. Notwithstanding this outer limit the trial court ordered the clerk, out of the registry of the court, to pay the paint dealer its entire $4,000 and the $2,442 obtained by default. As a result, although the manufacturer’s liability totalled only $4,000, it was required to pay $6,442, a consequence which we deem to be error.

The $2,442 judgment was owed not by the manufacturer, but by the paint dealer to a third party and if the manufacturer paid the third party by order of the court, then the manufacturer was entitled to a credit for that amount against the total moneys owed by it to the paint dealer. We concede that because of the default in the garnishment proceeding, the manufacturer would have been required to pay the $2,442 even if it had won an outright reversal on appeal rather than a reduction of the prior judgment. That obligation, however, cannot be expanded to require the manufacturer to pay the same $2,442 twice over; once to the paint dealer and once more to the paint dealer’s creditor. The total owed to the paint dealer was $4,000. One of its creditors has siphoned off $2,442. Accordingly the balance owed to it by the manufacturer is $1,558 not $4,000.

Another reason supports this result. Before the final judgment of garnishment was entered against the paint manufacturer, the paint dealer assigned $3,000 of its judgment against the manufacturer to the customer who was originally sued by the dealer and counterclaimed. Since the full amount of the paint dealer’s judgment was $10,503, the assignment to the customer constituted a partial assignment which was duly recorded in the public records.

The partial assignment does not bind Richard’s for it has long been held that “[a]n assignment of a portion of a judgment, according to most authorities, has no effect against the judgment debtor unless made with his consent or ratified by him.” Buckeye Refining Co. v. Kelly, 163 Cal. 8, 124 P. 536, 538 (1912). This rule is further discussed in 49 C.J.S. Judgments § 520 (1947):

While, as between the assignor and the assignee, the assignment of a part of a judgment is valid and binding, even when made without the judgment debtor’s consent, as against the debtor a judgment cannot be partially assigned without the debtor’s consent, such an assignment without the consent of the debtor having no effect against the debtor, unless it is subsequently ratified by him.

See also, 46 Am.Jur.2d Judgments, Section 896 (1969) and Salter v. Walsworth, 167 So. 494 (La.App. 1936).

The underlying and basic reason supporting the prohibition of partial assignments of a debt is likewise applicable to the transfer of portions of a judgment. The judgment debtor should not be obliged and forced to withstand numerous vexatious and expensive garnishment proceedings and judicial sales brought about at various times by several persons under one judgment.

Since the partial assignment was ineffective against the manufacturer, the manufacturer was indebted to the paint dealer at the time of the garnishment proceedings and, thus, at some juncture it would have been appropriate to satisfy the final judgment of garnishment from the monies owed by the manufacturer to the paint dealer. After appeal, the manufacturer was found to be indebted to the paint dealer for $4,000. The final judgment of garnishment was for $2,442.48. Therefore the $2,442.48 should have been deducted from the $4,000 and the balance remitted to the paint dealer.

Although not necessary to this decision, we find it worthwhile to discuss attempts to garnish judgment debts which have been superseded pending appeal. To this end we are much persuaded by an opinion out of the Second District written by Judge Grimes. Florida Steel Corporation v. Spa-nos Enterprises, Inc., 332 So.2d 663 (Fla.2d DCA 1976).

Had the manufacturer filed an answer to the writ saying in effect: “I am not indebted to the paint dealer because I plan to win on appeal and there will be no debt.... ” then we agree with Judge Grimes that in such event the writ should not be dissolved, but stayed upon the request of either the plaintiff or the defendant to the garnishment proceeding. Florida Steel, supra. However, the lack of such a stay in the case now before us, occasioned by the default, has certainly caused no prejudice to the paint dealer, who is in neither better nor worse position by reason of the manufacturer’s inattention to the writ of garnishment to which the paint dealer likewise filed no response.

REVERSED AND REMANDED FOR THE ENTRY OF A JUDGMENT IN ACCORDANCE HEREWITH.

DOWNEY and HURLEY, JJ., concur.

      . See Richards Paint Mfg. Co. v. Onyx Paints, Inc., 363 So.2d 596 (Fla.4th DCA 1978).

      . All cash totals stated in this opinion are rounded off and simplified for the sole purpose of rendering it intelligible. We are aware for instance that the $4,000 judgment entered by the trial court was in the end result actually $3,562.55 because of interest and costs.

      .We here make no determination on how this opinion affects the relative position between the paint dealer and Tri-County Painting, Inc. by reason of a prior assignment of judgment.


author: GLICKSTEIN, Judge.

text:
    Oliver L. PEACOCK, Jr., Appellant, v. Rosemary Ann PEACOCK, Appellee.
    No. 79-1102.
    District Court of Appeal of Florida, Fourth District.
    March 4, 1981.

      Donald L. Brooks of L. M. Taylor, Lawyers, North Palm Beach, for appellant.
    M. Brice Corder of Sullivan & Cobb, Vero Beach, for appellee.
   GLICKSTEIN, Judge.

This is an appeal from an order awarding suit money and attorney’s fees to appellee. We affirm.

The trial court’s order recites that appellant ceased making child support payments in September, 1977, causing appellee to file an application for contempt. Hearing was set thereon for January 17,1979. Two days prior to the hearing date appellant paid the entire arrearage of $7,500. However, in anticipation of the hearing appellee already had travelled from her home in South Africa at an expense of $1,708.70 and had incurred attorney’s fees.

On January 23, 1979, appellee’s attorney sent a letter to appellant’s attorney confirming an understanding that was reached between the two attorneys by telephone. The gist of the agreement was that the question of appellee’s costs occasioned by her trip to this country and her attorney’s fees could be presented to the trial court without testimony from the parties.

On February 19, 1979, appellee filed a motion for determination of costs, expenses and fees. At the hearing on the motion appellant’s attorney objected to proceeding without live testimony from the witnesses. Notwithstanding the objection the trial court proceeded to determine the motion as to costs by use of the letter dated January 23, 1979. Appellant’s attorney argued that the entire cost of appellee’s trip to this country should not be assessed against appellant because appellee must come to this country at least once a year to maintain her citizenship. The trial court rejected that argument and awarded appellee her total claim of $1,708.70. The court also awarded $900 in attorney’s fees to appellee’s attorney after hearing the testimony of an attorney called as a witness by appellee.

Unquestionably appellee is entitled to “suit money” because of her trip to this country to attend the contempt hearing. Foster v. Foster, 220 So.2d 447 (Fla. 3d DCA 1969). The fact that she also could accomplish other matters while in this country is immaterial. Appellant’s delinquency in child support payments occasioned the expenses.

As for the attorney’s fees awarded to appellee, the order and approved statement in lieu of transcript signed by the trial court supports its decision. Moreover, the fees were incurred solely by appellant’s default in child support payments and were required to enforce the trial court’s final judgment. Accordingly we affirm.

AFFIRMED.

DOWNEY and MOORE, JJ., concur.


text:
    STATE of Florida, Appellant, v. Anthony Jerome EVANS a/k/a Anthony Jerome Green, Appellee.
    No. 80-163.
    District Court of Appeal of Florida, Fourth District.
    March 4, 1981.
    Michael J. Satz, State Atty., and Teresa Beazley Widmer, Asst. State Attorney, Fort Lauderdale, for appellant.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

The information for burglary charges that appellee unlawfully entered the patio bar storeroom of the Town and Country Motel with the intent to commit a theft. Appellee filed a sworn motion to dismiss, stating, inter alia, that he was a guest of the motel; that shortly prior to his arrest he and another guest went to the patio bar for a drink; that the closest restrooms cannot be seen from the bar; that he entered the storeroom located about eight feet from the bar; that he was in the storeroom a very short time before being discovered by the barmaid; that there are no signs on the storage room door, indicating that it is a storeroom or that patrons are to keep out; that he has consistently maintained he thought the storeroom was a bathroom; that the light was not on in the storeroom and that he was looking for the light switch. To this sworn motion the state demurred, alleging that all of the foregoing was irrelevant, immaterial or not sufficient in law to constitute grounds for dismissal. The trial court granted the sworn motion. We reverse.

Section 810.02(1), Florida Statutes (1979), provides:

“Burglary” means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain. (Emphasis added).

In State v. West, 262 So.2d 457 (Fla. 4th DCA 1972), we reversed a trial court order of dismissal following a charge for possession of a false, forged or counterfeit note, and said:

A reading of this statute reveals that the act prohibited must be accomplished with intent. The intent of the accused is an essential element of the offense charged. It is not usually the subject of direct proof. It is inferred from the acts of the parties and from the surrounding circumstances. Williams v. State, Fla. App.1970, 239 So.2d 127; Edwards v. State, Fla.App.1968, 213 So.2d 274; Groneau v. State, Fla.App.1967, 201 So.2d 599; Jones v. State, Fla.App.1966, 192 So.2d 285; Scott v. State, Fla.App.1962, 137 So.2d 625.
Being a state of mind, intent is usually a question of fact to be determined by the trier of fact. The trier of fact has the opportunity to observe the witnesses. From that observation, the trier of fact may determine the believability of that witness and the weight to be given his testimony. The demeanor of the witness, his frankness, or lack of frankness, his intelligence, his interest in the outcome of the case, and the reasonableness of the testimony presented, in the light of all the evidence in the case, are but a few of those factors which may play a part in making that determination.

Id. at 458.

More recently, the Second District Court of Appeal in State v. J. T. S., 373 So.2d 418, 419 (Fla. 2d DCA 1979), cited our decision in State v. West, supra, and said:

Intent is not an issue to be decided on a motion to dismiss under Rule 3.190(cX4), Florida Rules of Criminal Procedure, since intent is usually inferred from the acts of the parties and the surrounding circumstances; being a state of mind, intent is a question of fact to be determined by the trier of fact, who has the opportunity to observe all of the witnesses. State v. West, 262 So.2d 457 (Fla. 4th DCA 1972).
A proceeding under Rule 3.190(c)(4) is the equivalent of a civil summary judgment proceeding, and as stated in State v. West, supra at 458: The trial court may not try or determine factual issues in a summary judgment proceeding; nor consider either the weight of the conflicting evidence or the credibility of the witnesses in determining whether there exists a genuine issue of material facts; nor substitute itself for the trier of the fact and determine controverted issues of fact. (Emphasis added).

See also State v. Norris, 384 So.2d 298 (Fla. 4th DCA 1980).

Sub judice, we hold that appellee’s intent was an issue for the triers of fact; consequently, the sworn motion to dismiss should have been denied. Accordingly, we reverse and remand for trial.

REVERSED and REMANDED.

DOWNEY and HERSEY, JJ., concur.


text:
    TOMASELLO, INC., a Florida Corporation, Appellant, v. Manuel Perez de LOS SANTOS, Appellee.
    No. 80-221.
    District Court of Appeal of Florida, Fourth District.
    March 4, 1981.

      Joel T. Daves, III, of Burdick & Daves, West Palm Beach, for appellant.
    J. A. Vassallo of Vassallo & Varner, P. A., Palm Springs, for appellee.
   GLICKSTEIN, Judge.

Appellee is a former employee of appellant, the latter being in the pest control, spraying and fertilizer business in Palm Beach County. Shortly after commencing employment in August, 1973, appellee executed an employment contract whereby he agreed not to compete with his employer in Palm Beach County for two years following termination of his employment.

On August 10, 1979, appellee voluntarily terminated his employment and entered into the same business as appellant in Palm Beach County. Two weeks later appellant instituted the present action, seeking an injunction and damages. Appellee subsequently answered and raised one affirmative defense; namely, that he left his employment with appellant in 1976 for a few weeks; that he never executed another employment contract after his return; and that by the terms of the 1973 contract the noncompetition clause expired in 1978, two years after he left his employment in 1976.

On October 1, 1979, the trial court entered a temporary injunction, restraining appellee from competing with appellant in Palm Beach County or accepting employment with anyone in competition with appellant. On December 12, 1979, the parties entered into a pre-trial stipulation in which they represented that the only two issues were (1) whether appellee’s employment contract terminated in 1976 and the two-year noncompetition clause expired in 1978, and (2) whether appellee’s reemployment in 1976 extended the contract until the end of the reemployment period in August, 1979, so that the two-year competition clause would be in effect for two years thereafter. These issues are really different sides of the same coin necessarily requiring consistent holdings.

At final hearing appellant’s president testified that when appellee returned to his employment in 1976 following his “resignation” a few weeks earlier, his employee benefits were reinstated as if he had never left. At the conclusion of the testimony the trial court announced that it was finding for appellant, but that it wanted memoran-da on whether the injunction should extend to appellee’s employment by another or be limited to appellee’s operation of a business in direct competition with appellant. Further discussion ensued as to the effect of Miller Mechanical, Inc. v. Ruth, 300 So.2d 11 (Fla.1974), and the necessity of reasonableness as to time and geographical area of the injunction.

Upon receipt of the memoranda the trial judge requested counsel to meet in chambers. No court reporter attended that meeting. According to the facts presented in appellant’s brief, which are uncontested and accepted by appellee, the trial judge' requested appellant’s counsel to obtain from appellant the precise geographical areas within Palm Beach County where appellee had worked while employed by appellant. Neither party asserts whether the judge gave any reason for requesting this information. By letter of January 23, 1980, appellant stated that appellee’s route was south of Forest Hill Boulevard in West Palm Beach and included several municipalities and unincorporated areas throughout the south part of the county. The letter further recited:

Because this information will be difficult to include in the record in this manner we respectfully request that the court schedule another hearing so that this evidence can be given in proper form by testimony of the witnesses. This can then provide the court with a proper factual basis upon which the court can make its final ruling.
If the court is inclined to rule without hearing further testimony, we respectfully urge that the court should enforce the agreement which the parties made. For the court to take this agreement now and change it in order to do equity for Mr. Santos would cause an inequitable result for not only Mr. Tomasello, but for Mr. Tomasello’s other employees. Mr. Santos would then be competing with them in those areas where he occasionally worked, and where he may have become familiar with the routes and customers.
We think the law is clear that this contract, in so far as Mr. Santos’ agreement not to compete in Palm Beach County for a period of two years following the termination of his employment, is eminently fair for all of the parties. We urge that it would be unfair for the court to change this contract based on the evidence you have heard.

No further hearing was held. The trial court entered a final judgment, finding the employment contract to be unreasonable in geographical area and ordering appellee to:

1. Refrain from working himself in pest control business anywhere in Palm Beach County south of Forest Hill Boulevard or its imaginary eastward and westward extensions (provided this order shall not apply west of “Twenty Mile Bend”); and
2. Refrain from soliticing [sic] business from persons who are or were customers of the plaintiff; and
3. Refrain from doing any act which would cause TOMASELLO, INC. customers to change accounts.
The foregoing order shall remain in effect for a period of two (2) years from the time that the defendant finally left the employment of the plaintiff.

Appellant contends that the trial court should not have considered the reasonableness of the geographical area covered by the noncompetition clause when the issue of reasonableness was not raised by the pre-trial stipulation or pleadings nor tried by the consent of the parties. We agree.

Florida Rule of Civil Procedure 1.140(b) provides in pertinent part:

Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading, if one is required .... Any ground not stated shall be deemed to be waived except any ground showing that the court lacks jurisdiction of the subject matter may be made at any time....

This is somewhat restricted by Florida Rule of Civil Procedure 1.190(b) which provides that issues not raised by the pleadings can be tried by express or implied consent. We have carefully reviewed the record and conclude that the mention by counsel of the necessity of reasonableness as to time and geographical area at the conclusion of the testimony was insufficient to make it an issue in this case as pled and tried.

What is in question is the application of Section 542.12(2)(a), Florida Statutes (1979), which provides, inter alia:

[0]ne who is employed as an agent or employee may agree with his employer, to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a reasonably limited time and area ... so long as such employer continues to carry on a like business therein. Said agreements may, in the discretion of a court of competent jurisdiction, be enforced by injunction.

As said in Miller Mechanical, Inc. v. Ruth, supra at 12:

When the Legislature adopted Fla.Stat. § 542.12, F.S.A. (the controlling statute in this case), it recognized the public policy arguments against agreements restricting competition, but nonetheless found several exceptions from the general rule to be reasonable. The statute is designed to allow employers to prevent their employees and agents from learning their trade secrets, befriending their customers and then moving into competition with them. The agreement, however, must be reasonable as regards the time during and the area within which the employee is to be prevented from competing with the employer. Capelouto v. Orkin Exterminating Co., 183 So.2d 532 (Fla.1966). In determining the reasonableness of such an agreement, the courts employ a balancing test to weigh the employer’s interest in preventing the competition against the oppressive effect on the employee. (Citations omitted) (Emphasis added).

Were the employment contract involved in this case facially violative of the foregoing statute, we might find differently; but such is not the case. Appellee contracted not to compete in Palm Beach for a period of two years following the termination of employment. That restriction was facially reasonable. See Hefelfinger v. David, 305 So.2d 823 (Fla. 1st DCA 1975). If appellee considered his employment contract to be unreasonable in area, it was incumbent upon him in this case to plead and prove his contention.

Accordingly, the final judgment is affirmed except as to its limitation to a geographical area less than Palm Beach County. As to that part of the final judgment, we reverse and remand with direction to enlarge the geographical area proscribed by the injunction to include all of Palm Beach County as provided in the parties’ contract.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

HERSEY, J., and WETHERINGTON, GERALD T., Associate Judge, concur.


text:
    In the Interest of S. L. D., a child.
    No. 80-253.
    District Court of Appeal of Florida, Fourth District.
    March 4, 1981.

      Richard L. Jorandby, Public Defender and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

S.L.D., a juvenile, was charged with robbery. At the conclusion of the adjudicatory hearing, the court announced its finding that the child had committed the lesser included offense of petty larceny. The court then began the disposition process at which point defense counsel reminded the court that Section 39.11(3), Florida Statutes (1979), had the effect of limiting the term of commitment to sixty days since the statute specifies that “[a]ny commitment ... shall not exceed the maximum term of imprisonment which an adult may serve for the same offense.” The court responded by saying, “I’m going to take back what I said,” and proceeded to announce a finding of robbery and an adjudication based thereon. Appellant contends that the trial court erred in reversing itself after it concluded its responsibilities as the trier of fact. We agree and reverse.

It is axiomatic that a sentence can be molded to fit the crime, but the crime cannot be molded to fit the sentence. See Instruction 2.15(a), Florida Standard Jury Instructions (2d ed. 1975). Accordingly, the cause is reversed and remanded with instructions to enter an adjudication of delinquency based upon a finding of petty larceny together with the applicable limitation of Section 39.11(3), Florida Statutes (1979).

MOORE, GLICKSTEIN and HURLEY, JJ., concur.

      . Rule 8.190(k), Fla.R.Juv.P.

      . See G. W. M. v. State, 391 So.2d 738, (Fla. 4th DCA, 1980).


author: ANSTEAD, Judge.

text:
    Debra Ann BRADY, Appellant, v. STATE of Florida, Appellee.
    No. 80-521.
    District Court of Appeal of Florida, Fourth District.
    March 4, 1981.

      Richard L. Jorandby, Public Defender, and Rendell Brown of Brown & Green, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

At issue is whether the trial court erred in determining that the appellant lacked standing to seek the suppression of evidence discovered by police in an apartment in which she was an overnight guest.

Ms. Brady was charged with burglary and grand theft. Subsequently, she filed a motion to suppress certain physical evidence seized at the apartment of a male friend of hers where she was spending the night. After the denial of her motion to suppress she entered a plea of nolo contendere to petit theft while reserving her right to appeal the court’s action on her motion to suppress.

Ms. Brady was the only witness to testify at the suppression hearing. She testified that she had moved out of her own apartment the day prior to her arrest. Between 3:30 a. m. and 4:00 a. m. on the day of her arrest, she arrived at the motel apartment of a friend with all of her belongings. She had visited at this friend’s apartment the day previous, and had also stayed at the apartment on other occasions. Because she had no funds, she felt that she would have remained at the friend’s apartment a second night if she had not been arrested. The police arrived at about 5:00 a. m. or shortly thereafter, at which time she was in bed, asleep. She paid no rent for staying at the apartment. On these facts, the trial court held that Ms. Brady had no standing to challenge the alleged illegal entry and search of her friend’s apartment, and the seizure therein of items in her possession, which the state wishes to use as evidence against her.

In recent decisions, the United States Supreme Court has held that only those persons who have a reasonable expectation of privacy in the premises have standing to challenge an alleged illegal entry and search of those premises. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). In so ruling, the court has adopted the analysis of the concept of reasonable expectation of privacy set out in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), as a means of defining the scope of the privacy interest protected by the Fourth Amendment.

In Rakas, supra, the decision in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) was overruled to the extent it extended standing to any person legitimately on the premises. However, the court went to great lengths to point out that it agreed with its earlier ruling that the defendant in Jones, an overnight house-guest, did have a legitimate expectation of privacy in the searched premises. The premises searched in Jones was an apartment leased by a friend of Jones, who had given Jones a key. Jones had a suit and shirt at the apartment and had slept there a night, but his home and other belongings were elsewhere. At the time of the search, Jones was the only occupant of the apartment, the friend being away for several days.

In Rakas, supra, the court stated:

We do not question the conclusion in Jones that the defendant in that case suffered a violation of his personal Fourth Amendment rights if the search in question were unlawful.
We think that Jones on its facts stands for the unremarkable proposition that a person can have a legally sufficient interest in a place other than his own home so that the Fourth Amendment protects him from unreasonable governmental intrusion into that place....
... Viewed in this manner, the holding in Jones can best be explained by the fact that Jones had a legitimate expectation of privacy in the premises he was using and therefore could claim the protection of the Fourth Amendment with respect to a governmental invasion of those premises, even though his “interest” in those premises might not have been a recognized property interest at common law.

439 U.S. at 141-143, 99 S.Ct. at 429. We believe the facts here are sufficiently similar to Jones to require the same result.

Brady was not only an overnight house-guest; she had moved all of her belongings into the apartment and expected to remain since she had no money, and had previously been allowed to stay in the apartment. Unlike Jones, Brady had no home elsewhere. Under these circumstances, we believe she had a reasonable expectation of privacy in the premises that she was, in effect, sharing with her friend. Having such a privacy interest, she is entitled to challenge any illegal entry and search of the premises.

Accordingly, this cause is hereby reversed and remanded for further proceedings consistent herewith.

MOORE and GLICKSTEIN, JJ., concur.


text:
    Melvin APPLE, Marion Grenell, and Lillian Polisar, Appellants, v. DEAN WITTER & COMPANY, INC., et al., Appellees.
    No. 80-1264.
    District Court of Appeal of Florida, Fourth District.
    March 4, 1981.
    Edna L. Caruso and Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellants.
    Guy B. Bailey, Jr., and Steven M. Meyers of Bailey & Dawes, Miami, for appellees.
   PER CURIAM.

Appellee’s Motion to Dismiss Appeal is granted. This “Final Judgment” disposes of one of three causes of action all of which are alleged to arise from the same factual episode. Under such circumstances appeal must await disposition of all of the counts of the complaint which are based upon interrelated issues of fact and law. Agriesti v. Clevetrust Realty Investors, 381 So.2d 753 (Fla. 4th DCA 1980).

APPEAL DISMISSED.

HERSEY, GLICKSTEIN and HURLEY, JJ., concur.


author: MILLS, Chief Judge. BOOTH, Judge,

text:
    E. L. DUNN and John C. Nix, Jr., Appellants, v. J. E. STACK, Jr., et al., Appellees.
    No. EE-50.
    District Court of Appeal of Florida, First District.
    March 5, 1981.
    Edward T. Barfield of Reeves, Barfield & King, Pensacola, for appellants.
    Donald H. Partington of Clark, Parting-ton, Hart & Hart, Robert G. Kerrigan and George Estess of Kerrigan, Estess & Rankin, Allen W. Lindsay, Sr., Pensacola, for appellees.
   MILLS, Chief Judge.

Dunn and Nix appeal from an order dismissing for lack of jurisdiction their suit to quiet title of their leasehold interest in oil, gas, and minerals on and under certain property in Santa Rosa County.

There are many confusing facts and facets to the merits of the quiet title claim asserted below which need not be ruled on at this time. Suffice it to say, there was a prior quiet title suit filed by Matthew Barnes, as administrator of the estate of J. E. Barnes. By amended complaint, the heirs of J. E. Barnes and, perhaps, Thomas “Dick” Ates were joined as parties plaintiff. (The final amended complaint which was ordered by the trial court on 5 July 1972 and alleged in the brief to have been filed on 29 July 1972 is not in the record on appeal. Ates’ name is included in the caption of the final judgment. Because the document was not necessary for our determination of the issue before us, we did not order the record supplemented.)

The purpose and result of the prior quiet title action was to clear from the title all of the claims by the named defendants which had come to cloud the title over the years. J. E. Stack, Jr., et al. are alleged to be the successors in title of Ates. E. L. Dunn and John C. Nix, Jr., were not parties to the action.

In a quiet title action, a person who is not a party to the action is not bound by any judgment rendered adverse to his interest. Section 65.041, Florida Statutes (1971). Therefore, the trial court did have jurisdiction to consider the merits of the claim by Dunn and Nix and should not have ordered the dismissal.

Appellees urge that Dunn and Nix should be bound by the earlier judgment because a lis pendens had been filed. No action on real property operates as a lis pendens until a notice of commencement of the action is recorded in the office of the clerk of the circuit court containing, in addition to other requirements, the names of the parties and a statement of the relief sought as to the described property. Section 48.23(l)(a), Florida Statutes (1971). At the time the prior quiet title suit was instituted, only Matthew Barnes, as administrator, was designated as the plaintiff. Although Zeda Barnes, Dunn and Nix’s alleged predecessor in title, and, perhaps, Ates were later made parties, the notice of commencement was never amended to reflect that fact. Furthermore, the prayer for relief made no mention of quieting the title of Ates’ leasehold interest.

Notice is limited to those matters in dispute between the parties to the action. It has no application to matters not in issue, not pertinent to any issue, and which cannot be determined in the action. Its operation does not extend beyond the prayer for relief. De Pass v. Chitty, 90 Fla. 77, 105 So. 148 (1925).

Even if the proper parties plaintiff had been named in the notice of commencement, that would not have given Dunn and Nix notice that the parties plaintiff might have adverse interests as to title to the property. In addition, the relief sought in the earlier suit was only to have title quieted as between the plaintiffs and the defendants. It did not purport to litigate the possible adverse interests among the plaintiffs.

Accordingly, we conclude that the trial court does have jurisdiction to determine the issues raised by this quiet title suit. We reverse the order appealed and remand to the trial court for further action consistent with this opinion.

LARRY G. SMITH, J., concurs.

BOOTH, J., specially concurs.

BOOTH, Judge,

specially concurring:

I agree with the majority that the trial court has jurisdiction to determine the validity of the oil, gas and mineral lease executed by Zeda Barnes Davis to E. L. Dunn, notwithstanding the previous judgment in the quiet title suit dated February 7, 1973, in Case No. 71-C-488, holding Thomas Ates was holder of valid lease to mineral rights in question. Plaintiff Dunn, appellant herein, was not named in that suit, and plaintiff’s lessor was not made a party until after the execution and recordation, in January of 1972, of the Dunn lease. The validity of the lease from Zeda Barnes Davis to E. L. Dunn, as against the lease to Thomas Ates, involves questions of law and of fact which remain to be determined. Facts indicating Dunn’s knowledge of the controversy concerning the oil, gas and mineral rights in the property and of the suit at the time he obtained execution of the lease of Zeda Barnes Davis’ interest have a bearing on his status as a bona fide purchaser but do not make him subject to the judgment entered in the quiet title suit to which neither he nor his lessor were party.

The doctrine of lis pendens operates to bind non-parties who acquire interest in property pending litigation. The doctrine has been stated as follows:

[0]ne who, with actual or constructive notice of the pending action, acquires from a party thereto an interest in the property, involved in a litigation in a court having jurisdiction of the subject matter and of the person of the one from whom the interest is acquired, takes subject to the rights of the parties to the litigation as finally determined by the judgment or decree, (e. s.)

In the instant case, the Dunn lease was executed and recorded prior to the lessor being made a party. Amendment to the complaint to add the Barnes heirs, including Zeda, as parties in July of 1972 did not relate back to the original filing of the suit in October of 1971. Bigelow v. Stringfellow, 25 Fla. 366, 5 So. 816 (Fla.1889). Therefore, the previous judgment is not determinative as to the claims of plaintiffs, and the trial court has jurisdiction to determine the cause.

      . That judgment was affirmed without opinion in Sims v. Barnes, 290 So.2d 595 (Fla. 1st DCA 1974).

      . 54 C.J.S., Lis Pendens, at p. 570.

      . Bigelow v. Stringfellow, 25 Fla. 366, 5 So. 816, 817 (Fla.1889):
      The doctrine of lis pendens is regarded with no partiality by the courts, and cannot, upon the facts of this case, be assumed by us to apply to Taylor, who purchased before Bige-low became a party to the suit, and is not himself a party to it.

        See Blase v. Austin, 362 Mo. 409, 242 S.W.2d 29, 34 (Mo.1951); 54 C.J.S. Lis Pendens § 34.


text:
    Thomas P. SOLTESZ, Appellant, v. STATE of Florida, Appellee.
    No. TT-345.
    District Court of Appeal of Florida, First District.
    March 5, 1981.
    Donald G. Nichols of Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant’s attack on the constitutionality of Section 893.135, Florida Statutes (1979), the so-called “drug-trafficking” law on Fifth Amendment grounds raises issues already decided adversely to his position by this court in Stehling v. State, 391 So.2d 287 (Fla. 1st DCA 1980). The decision of the Florida Supreme Court in State v. Benitez, 395 So.2d 514 (Fla. 1981), holding the statute (specifically subsections (1) and (3)) constitutional, disposes of the Fifth Amendment argument as well as all other contentions made by appellant concerning the validity of these enactments.

Appellant’s second point on appeal (validity of search warrant issued pursuant to affidavit based on officers detection of the odor of marijuana) is affirmed on authority of Mahla v. State, 383 So.2d 730 (Fla. 1st DCA 1980), and State v. Farrugia, 393 So.2d 614 (Fla. 1st DCA 1981).

AFFIRMED.

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