author: BOYD, Justice.

text:
    John BARNDOLLAR et al., Appellants, v. SUNSET REALTY CORP., Appellee.
    No. 57932.
    Supreme Court of Florida.
    Dec. 6, 1979.
    Rehearing Denied Feb. 19, 1980.
    William H. Grace and Arthur K. Knudsen, Jr., of Allen, Knudsen, Swartz, De-boest, Rhoads & Edwards, Fort Myers; C. Guy Batsel and Leo Wotitzky, of Wotitzky, Wotitzky, Johnson, Mandell & Batsel, Pun-ta Gorda; and Jim Smith, Atty. Gen., and Shirley A. Walker, Asst. Atty. Gen., Tallahassee, for appellants.
    Archie M. Odom and Lester E. Durst, of Farr, Farr, Haymans, Moseley, Odom & Emerich, Punta Gorda; and H. William Thompson, County Attorney, Charlotte County, Punta Gorda, for appellees.
   BOYD, Justice.

This cause is before the Court on appeal from a final summary judgment of the Circuit Court of the Twentieth Judicial Circuit, in and for Charlotte County. The circuit court construed the Florida Constitution and passed upon the constitutionality of chapter 79-490, Laws of Florida. We have jurisdiction.

On May 9, 1979 the Legislature enacted chapter 79-490, pertaining to the creation of the Gasparilla Island Historic and Conservation District. The act provides that this special government entity be established upon approval by a majority vote of “qualified persons” in a referendum to be held Tuesday, November 6, 1979. The act provides further:

Any person who is an elector of Lee County or Charlotte County and is a resident of the proposed district, or who is a natural person and owns property situated in the district, is eligible to vote in such referendum election; however, no person shall be eligible to vote more than one ballot.

Ch. 79-490, § 10, Laws of Fla.

Appellee Sunset Realty Corporation, which owns real property within the proposed district, the use of which would be subject to regulation under the proposed law, brought an action to enjoin the referendum. The action was grounded upon the asserted unconstitutionality both of the regulatory scheme and of the procedure for its adoption by the voters.

It is undisputed that chapter 79-490 is a special law. Article III, section 10, Florida Constitution, provides:

No special law shall be passed unless notice of intention to seek enactment thereof has been published in the manner provided by general law. Such notice shall not be necessary when the law, except the provision for referendum, is conditioned to become effective only upon approval by vote of the electors of the area affected.

Prior to the enactment of chapter 79-490, a notice of intention to seek same was published, in the manner provided by law, in Charlotte and Lee County newspapers. The notice read as follows:

TO WHOM IT MAY CONCERN:

You are hereby notified that the Gas-parilla Island Conservation and Improvement Association, Inc., intends to apply to the Legislature of the State of Florida during the 1979 Session for the passage of a special act to be known as the “Gas-parilla Island Historic and Conservation District Act” providing for the creation of the Gasparilla Island Historic and Conservation District within Lee and Charlotte Counties, and providing for a referendum.

The trial court enjoined the election, holding that the method by which the act is to be submitted for voter approval violates the Florida Constitution. The court concluded that the pre-enactment notice was legally inadequate, so that the referendum procedure was crucial to the act’s validity under article III, section 10. The court then held that the provision in the act allowing nonresident property owners to vote violates article III, section 10, which provides for special law approval “by vote of the electors of the area affected.” Finally, the court found that the provision for nonresident participation is not severable, so that chapter 79-490 is void.

The appellants contend that, the court below erred in each of its holdings leading to the conclusion that chapter 79-490 is unconstitutional.

The first issue is whether the notice of intention to seek enactment of chapter 79-490 was adequate. The notice must be sufficient to apprise the inhabitants of the affected area and directly interested persons of the general nature and purpose of the act. State ex rel. Watson v. City of Miami, 153 Fla. 653, 15 So.2d 481 (1943); State ex rel. Landis v. Reardon, 114 Fla. 755, 154 So. 868 (1934).

The appellants cite cases in which very general language was held to constitute sufficient notice. City of Hialeah v. Pfaffendorf, 90 So.2d 596 (Fla.1956); Chavous v. Goodbred, 158 Fla. 826, 30 So.2d 370 (1947) (notice set out in dissenting opinion). These cases are inapposite. Both related to referenda on municipal charters. The essential powers of a municipal government are matters of general public knowledge. This is not so in the case of a special district created for purposes of historic preservation and conservation. The notice here made no mention of the powers and duties of the proposed special district. It was clearly inadequate to apprise interested persons of the scope and purpose of the proposed regulatory scheme. Therefore the trial court was correct in holding that the referendum process had to be valid in order for the act to be valid.

The second issue is whether it is within the power of the legislature, in providing for submission of a special act to the voters of the affected area, to confer upon nonresident property owners the status of qualified electors. The trial court noted that article III, section 10 requires “approval by vote of the electors of the area affected,” and turned to article VI, section 2, Florida Constitution, for the definition of an elector. That section provides in part:

Every citizen of the United States who is at least twenty-one years of age and who has been a permanent resident for one year in the state and six months in a county, if registered as provided by law, shall be an elector of that county.

The appellants contend that article VI, section 6, Florida Constitution, confers upon the legislature the power to establish the qualifications for voters in municipal elections and elections such as the one at issue here. That section provides: “Registration and elections in municipalities shall, and in other governmental entities created by statute may, be provided by law.” This provision does not pertain to the qualifications of voters. There is a general policy in this state against nonresident participation in municipal elections. Town of Indian River Shores v. Richey, 348 So.2d 1 (Fla.1977). Regardless of the power of the legislature with regard to local government elections, however, the trial court was correct in holding that only electors as defined in the constitution may vote in special law referenda under article III, section 10. See State v. City of Port St. Joe, 47 So.2d 584 (Fla.1950); Clements v. Starbird, 152 Fla. 555, 12 So.2d 578 (Fla.1943); Pitt v. Belote, 108 Fla. 292, 146 So. 380 (1933); Stewart v. New Smyrna Inlet District, 100 Fla. 1126, 130 So. 575 (1930). A decision cited by the appellants, upholding the restriction of participation in a bond issue referendum to freeholders, is inapplicable. Masters v. Duval County, 114 Fla. 205, 154 So. 172 (1934). Therefore, the provision for voting by nonresident freeholders is invalid.

The third and final issue is whether the unconstitutional provision qualifying nonresidents who own property in the proposed district as voters in the referendum is sev-erable so that the act may stand with the invalid portion excised. Section 7(2) of the act is a severability clause:

If any provision of this act or the application thereof to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are declared severable.

A severability clause is not, of course, determinative of severability. State ex rel. Boyd v. Green, 355 So.2d 789 (Fla.1978). In order for an invalid provision of an act to be severable, we must be able to conclude that the legislature would have been content to enact the law without the invalid provision. State ex. rel. Limpus v. Newell, 85 So.2d 124 (Fla.1956).

In the instant case, it is reasonable to conclude that the legislature sought to include nonresident landowners in the referendum (and in elections of officers of the district, see section 5(2)) out of considerations of fairness in view of the regulations and restrictions on land use that would result upon establishment of the district.

When . . . the valid and void parts of a statute are mutually connected with and dependent upon each other as conditions, considerations, or compensations for each other, then a severance of the good from the bad would effect a result not contemplated by the legislature; and in this situation a severability clause is not compatible with the legislative intent and cannot be applied to save the valid parts of the statute.

Small v. Sun Oil Company, 222 So.2d 196, 199-200 (Fla.1969). See also Musleh v, Marion County, 200 So.2d 168 (Fla.1967); Cramp v. Board of Public Instruction, 137 So.2d 828 (Fla.1962). We hold that the invalid provision of the statute is not sever-able, so that chapter 79-490 is void in its entirety.

For the foregoing reasons, the Gasparilla Island Historic and Conservation District Act is unconstitutional. The circuit court was correct in enjoining the referendum. The judgment of the circuit court is affirmed.

It is so ordered.

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

ADKINS, OVERTON and McDONALD, JJ., dissent.

      . These decisions interpreted the Constitution of 1885, but are proper authorities for interpretation of the present constitution. In re Advisory Opinion to the Governor, 112 So.2d 843 (Fla.1959).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Martin S. SAXON, Respondent.
    No. 55720.
    Supreme Court of Florida.
    Jan. 24, 1980.
    Rehearing Denied March 14, 1980.
    Paul A. Gross, Bar Counsel, Miami, and James P. Hollaway, Asst. Staff Counsel, Tallahassee, for complainant.
    Shalle Stephen Fine, Miami, for respondent.
   PER CURIAM.

This disciplinary proceeding, is, before the Court on complaint of The.Florida,Bar; the report of a referee, and the petitions of both parties for review. We have jurisdiction. Art. V, § 15, Fla.Const.

On May 24, 1977, following grievance committee proceedings, The Florida Bar by complaint instituted disciplinary proceedings before a bar referee. The complaint alleged that on June 18, 1971, the respondent attorney Martin S. Saxon went to the office of federal magistrate Peter Palermo and offered him a gift of several hundred dollars in cash. The complaint alleged further that this was “a willful attempt to gain favor with the court by questionable means,” that it demonstrates unfitness to practice law, and that it constitutes violation of the Code of Professional Responsibility, disciplinary rules 1-102(A)(5), 1-102(A)(6), and 7-110(A).

The referee’s report contains the following findings of fact:

Respondent was at all times relevant a member of The Florida Bar, subject to the jurisdiction of and disciplinary rules of The Supreme Court of Florida. (Admission No. 1 by Respondent.)
The Complaint in this case was filed by The Florida Bar, by direction of its Board of Governors, and all conditions prerequisite to the filing of said Complaint, as required by the integration rule, have been fulfilled. (Admission B.)
On or about June 17,1971, the Respondent represented certain criminal defendants at a preliminary hearing before Judge Peter R. Palermo of the United States District Court for the Southern District of Florida. (Admission C.)
At that hearing, Judge Palermo dismissed the charges against two of Mr. Saxon’s clients. (Admission D.)
On June 18, 1971, before noon, Mr. Saxon came by Judge Palermo’s office in the Post Office Building. Judge Palermo maintains an open-door policy. Saxon walked into Judge Palermo’s office and placed an indeterminate number of $100 bills (but more than one), all rolled up, in Judge Palermo’s shirt pocket. Judge Palermo immediately returned the cash and asked Mr. Saxon, “What gives?” At this point, Judge Palermo’s secretary walked in. Mr. Saxon then took a small Government memo paid from the desk of Judge Palermo and wrote “They are clean” and displayed the pad to Judge Palermo. Judge Palermo’s secretary left the room.
Mr. Saxon tore the sheet off the memo pad and kept the note, and said something to the effect that Judge Palermo was doing a good job and could use the money. Judge Palermo then told Saxon in substance that he was in the wrong league; that Judge Palermo had done nothing that he should not have done; that Judge Palermo called them as he saw them; that whatever Judge Palermo did was done because he believed it was the right thing to do. Saxon then remarked that he had received a good fee and more in the case he had tried before Judge Palermo resulting in the dismissals and left.
In due course, Judge Palermo reported the incident to Judge Joe Eaton of the United States District Court for the Southern District of Florida. (Admission I.) On June 25, 1971, Mr. Saxon resigned from the Federal Bar of the United States District Court of the State of Florida (Admission J) under pressure of an en banc disciplinary hearing before all the Judges of that Court.
On June 29, 1971, Mr. Saxon’s resignation was accepted by The Honorable Charles B. Fulton, Chief Judge of the United States District Court for the Southern District of Florida.

The referee ruled that the respondent could not be found guilty of violation of Disciplinary Rule 7-110(A) because Judge Palermo did not accept the gift. The referee made the following recommendation as to discipline:

I recommend that the Respondent be suspended from the practice of law for a period of six months with automatic reinstatement at the end of the period of suspension as provided in Rule 11.1013. Because of the gravity of the offense, I have agonized as to whether this recommendation is severe enough in the circumstances. In limiting my recommendation to a six month suspension, I have taken into account the effect on the career of Respondent of the action of the Federal Court in suspending the Respondent from the practice of law for life in the Federal Courts of the State of Florida. I have noted the difference of opinion between the Federal Judges on the question of whether the Respondent should remain suspended from the practice of law in the Federal Courts of the State of Florida for the balance of his life. I have considered the background of the Respondent — that he is an ex-policeman with the Miami Beach Police Department, that he worked at that job while earning his degree at the University of Miami Law School; and that most of his legal career has been spent as an independent practitioner grinding out defenses in the poorest paying and most difficult of criminal cases. I am convinced that the Respondent has learned from the reaction of the Federal Judges, from the reaction of the Referee, and from the newspaper reaction that conduct such as his on this occasion is intolerable in a system of justice which must ever aspire to a stature beyond suspicion of favoritism. I do not expect the Respondent to repeat this or any similar offense.

The Florida Bar contends that the referee’s holding that Disciplinary Rule 7-110(A) requires for its violation a completed gift is in error. The Bar contends further that the referee’s recommended discipline is too lenient and that the respondent should be disbarred.

We agree that the rejection of the offer of a gift does not preclude a finding that the respondent violated Disciplinary Rule 7-110(A). The referee’s ruling that violation requires a completed gift is disapproved.

It is apparent that the referee’s recommended discipline was based on his conclusion that the respondent’s conduct, although highly improper, was committed without corrupt intent. The referee had the opportunity to directly evaluate the testimony of the witnesses, and his findings of fact are entitled to a presumption of correctness. Fla.Bar Integr. Rule, art. XI, Rule 11.-06(9)(a). The findings in this regard and the recommended discipline are approved and adopted. The respondent Martin S. Saxon is suspended from the practice of law for six months effective the date of this order. Costs are taxed against the respondent in the amount of $845.75.

It is so ordered.

ADKINS, BOYD, ALDERMAN and MCDONALD, JJ., concur.

ENGLAND, C. J., and OVERTON, J., concur as to the referee’s finding of guilt but dissent as to the punishment imposed.


author: ERVIN, Judge.

text:
    The BARNETT BANK OF TALLAHASSEE, Appellant, v. Albert V. APPLEGATE, Phyllis J. Applegate, his wife, and Lewis C. Schacht, Appellees.
    No. HH-210.
    District Court of Appeal of Florida, First District.
    Oct. 17, 1978.
    Julius F. Parker, Jr. of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for appellant.
    Stanley Powell of Douglass, Powell & Davey; Guyte P. McCord, III, Sam Spector of Spector & Tunnicliff, Tallahassee, for appellees.
   ERVIN, Judge.

Barnett Bank appeals, and Lewis C. Schacht cross-appeals from a final judgment holding that the appellees Applegates have a superior lien to that of Barnett Bank upon 140 head of cattle removed by Schacht from certain premises leased to Schacht by the Applegates and thereafter sold by Schacht to certain third persons in violation of a vendor’s security interest in the cattle executed by Schacht in favor of the Apple-gates.

On January 26, 1974, the Applegates and Lewis Schacht entered into a memorandum agreement in which it was agreed that the Applegates would sell approximately 550 cows, calves and bulls to Schacht for the sum of $100,000, $10,000 payable forthwith and $10,000 per year for nine additional years commencing January 1, 1975, with interest on the unpaid balance at 8% per year. As security for the agreement, Schacht agreed that the Applegates had a vendor’s security interest on both the herd and its progeny. It was further agreed that Schacht would not permit the total number of cattle to decrease to a number which bore the same relation to the original price as the unpaid principal of the purchase price bore to the original price. The security agreement was recorded in the .public records of Jefferson County on February 11, 1974. The security agreement as filed made no reference to proceeds obtained from sale of the cattle. On February 20, 1976, the Applegates filed a complaint against Schacht in which it was alleged that on January 1, 1976, Schacht failed to make the payment due under the terms of the agreement; that on December 25 and 26, 1975, Schacht caused to be removed from the Applegates’ premises between 140 and 210 cattle from the premises leased, in violation of the lease agreement, thereby decreasing the herd left on the premises to 245 head cattle; that there was owing to the Applegates the sum of $86,400 pursuant to the terms of the agreement or 80% of the original principal debt; that Schacht had decreased the herd to less than the number required to be maintained at all times on the premises (It was alleged that as of January 1, 1976, the date of the breach, no less than 440 cows should have remained on the premises as security.); that Barnett Bank was made a party to the complaint by reason of a security agreement given to the Barnett Bank of Tallahassee by Schacht on December 28, 1975, upon 275 yearling calves; that those cattle were subject to plaintiff’s prior vendor’s lien to the extent that the removal of such cattle decreased the herd on the premises of the plaintiff’s below 440 head. The complaint requested that the court determine the respective lien rights of the parties to the cattle, order defendant to pay to the plaintiffs within a time certain the sum of $80,000, together with interest at the rate of 8% from January 1, 1975 until date of payment and, in the event of Schacht’s failure to pay within the time allotted, order the cattle subject to the plaintiff’s lien be sold at a time and place in accordance with the conditions specified, and that if the funds produced from the sale of the cattle were not sufficient to pay the amount due the plaintiffs, enter a deficiency judgment against Schacht.

The cause was tried non-jury before the court and no transcription was made of the testimony. The court found from the evidence: (1) On January 1, 1976, Schacht failed to pay when due a cattle payment of $10,000 principal, together with accrued interest in the amount of $6,400. (2) The failure to pay the cattle payment entitled the Applegates to repossess the herd. (3) Only 265 head were returned to plaintiffs, 175 cattle less than plaintiffs were entitled at the time of the breach. (4) At least 140 head of cattle were removed from the premises by Schacht between Christmas day, 1975 and his abandonment of the premises in mid-January, 1976, and that those cattle were subject to the lien of the plaintiffs recorded on February 11, 1974, which was superior to that of Barnett Bank of Tallahassee, recorded on December 31, 1975. (5) The amount due under the terms of the agreement for the purchase of the cattle was $80,000 plus interest at the rate of 8% per annum from January 1, 1975, and that the plaintiffs had a lien upon the 140 head of cattle removed by defendant Schacht from the premises and thereafter sold on April 28, 1976, in the amount of $16,233.36 and on April 20, 1976, in the amount of $6,496.75. (6) The funds from the cattle’s sale were received by the Barnett Bank of Tallahassee months after being joined as a party to the cause, and that the Applegates’ superior lien caused Barnett Bank to hold the funds in trust for the plaintiffs to the extent that a deficiency may exist upon the principal and interest due the plaintiffs.

Barnett argues that under the provisions of Section 679.9-306, Florida Statutes (1975), it is entitled to retain the proceeds of collateral sold by the debtor and paid to Barnett. Section 679.9-306(2) provides that a security interest continues in collateral notwithstanding its sale unless the action was authorized by the secured party in the security agreement. Barnett argues since the Applegates’ security agreement involving the sale of the cattle provides that a person who buys any of the cattle in the ordinary course of business will take them free of the security interest created, that the secured party in effect authorized the sales of the cattle which occurred on April 28 and April 30, 1976, and lost any priority as to the cattle or the proceeds from their sale.

Barnett’s first point is without merit. While Section 679.9-306(2) permits a continuing security interest in collateral notwithstanding sale unless the debtor’s action was authorized by the secured party, the statute merely provides that upon default a secured party has the option of recovering either the proceeds or collateral after an unauthorized sale. If, however, the secured creditor authorizes the sale, his security interest in the collateral is extinguished, but his interest continues in the proceeds obtained from the sale of the collateral. In re Kittyhawk Television Corp., 383 F.Supp. 691, 694 (S.D. Ohio 1974); see also Anderson, Uniform Commercial Code, § 9-306:4 (1971).

Next Barnett points out that Section 679.9-306(3) provides a security interest in proceeds ceases to be perfected 10 days after receipt of the proceeds by the debtor unless a filed financing statement covering the original collateral also covers proceeds, or the security interest in the proceeds is perfected before the expiration of the 10 day period; therefore the Applegates’ security interest in the proceeds derived from the sale of the cattle was not perfected since (1) the memorandum agreement did not cover proceeds of the sale or (2) a financing statement was not filed by them within 10 days after the sale. Barnett notes that it properly filed a financing statement covering the collateral and the proceeds of the collateral and therefore had a perfected security interest in both insofar as its lien applied to the 275 calves. It argues that the trial court’s rationale for imposing a constructive trust upon the proceeds of the 140 cattle sold was apparently based on the fact that Barnett was a party to the litigation at the time the cattle were sold.

We agree with Barnett that the Apple-gates lost any priority in the proceeds from the sale of the collateral when (1) their financing statement failed to make any reference to proceeds obtained from sale of the collateral and (2) they failed to perfect a security interest in the proceeds within 10 days after the sales as required by Section 679.9-306(3)(b). Barnett’s security interest in the proceeds remains perfected because, unlike that filed by the Applegates, its financing statement covered proceeds. Section 679.9-306(3)(a). The same section of the Uniform Commercial Code was construed by the Wisconsin Supreme Court in Barth Brothers v. Billings, 68 Wis.2d 80, 227 N.W.2d 673 (1975). There, a credit company loaned Billings money in 1969. The credit company perfected a security interest in some of Billings’ possessions, including all of his cattle, both then existing and which Billings might later acquire during the life of the note, as well as in the proceeds from the sale of the cattle. Barth sold Billings some cattle in 1971 and 1972, and filed financing statements on the cattle sold to secure three notes which Billings had given Barth. The financing statements, however, did not cover proceeds from the sale of the collateral. Later, Billings sold the cattle to certain third persons. When Billings defaulted in his payments on the note, Barth brought an action in which he alleged his security interest in the cattle was superior to that of the credit company. The court found first that Barth had no security interest in the cattle since there was no evidence that the security agreement existed. Second, even assuming the existence of such an interest, and assuming Barth’s superior interest in the cattle he sold Billings, after Billings later sold the cattle, the proceeds of which were not subject to a perfected interest of Barth’s, who failed to secure his interest within 10 days after the sale, the credit company’s perfected security interest in those proceeds became superior to Barth’s unperfected interest.

It is true that the facts in Billings are somewhat different from those here in that no action was filed, as here, making the lending institution a party defendant to an action seeking to determine the priority of the respective liens. The fact that Barnett was on actual notice by being joined as a party defendant in a suit where the Ap-plegates claimed their lien to be superior to Barnett’s prior to the sale of the cattle and receipt of the proceeds from Schacht, does not affect the priority of its lien. Section 679.9-301 states generally that an unper-fected security interest is subordinate to the rights of secured creditors. The only classification of creditors who may become subordinate to a person holding an unperfected security interest is a lien creditor who, before becoming so, has knowledge of another’s prior unperfected interest. A lien creditor is defined in Section 679.9-301 as a creditor “who has acquired a lien on the property involved by attachment, levy or the like . . . .” Obviously Barnett does not come within the above definition. It is rather a secured creditor and is entitled to priority under Sections 679.9-301 and 679.9-312.

The court’s finding that a constructive trust arose by operation of law is not supported by the facts. A constructive trust is imposed against one who, by actual or constructive fraud, by duress or abuse of confidence, or by any form of unconscionable conduct, artifice, concealment, or questionable means, has acquired the legal right to the property he ought not, under equitable principles, hold and enjoy. 33 Fla.Jur., Trusts, § 61 (1960). Barnett violated no legal, or, for that matter, any equitable principles by perfecting its security interest upon the collateral and the proceeds therefrom which secured the loan. This was its legal right. There is no evidence of any unfair dealing, fraud or otherwise by Barnett which affected the Applegates’ rights. Nor did it do violence to any equitable principle by receiving the proceeds from Schacht from the sale of that collateral to which its perfected security interest applied.

That portion of the lower court’s final judgment determining that the Applegates’ lien was superior to that of Barnett’s, and holding that the proceeds obtained by Barnett from the sale of the cattle should be held in trust for the Applegates is reversed.

MILLS, Acting C. J., and MELVIN, J., concur.


author: ERVIN, Acting Chief Judge. ERVIN, Acting Chief Judge.

text:
    John PETRIK and Claudine Petrik, husband and wife, and Automobile Club of Southern California, a foreign corporation, Appellants, v. NEW HAMPSHIRE INSURANCE COMPANY, a foreign corporation, et al., Appellee.
    No. KK-35.
    District Court of Appeal of Florida, First District.
    April 26, 1979.
    On Rehearing May 31, 1979.

      Robert C. Gobelman and Jack W. Shaw, Jr. of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb; John R. Saalfield and Gerald W. Weedon of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellants.
    Carl A. Felton, Jr. of Boyd, Jenerette, Leemis & Staas, Jacksonville, for appellee.
   ERVIN, Acting Chief Judge.

Appellants John and Claudine Petrik were passengers in their son David’s automobile, driven by David, when they collided with a truck owned by appellee Superior Dairies and driven by appellee Irving Charles, Superior’s employee. David’s car was insured by cross-appellant Automobile Club of Southern California, a California corporation. John and Claudine Petrik, who were visiting their son in Duval County when the accident occurred, and who are residents of California, paid the premiums on the policy which was issued to both of them. The policy excluded coverage for “bodily injury to the named insured or a relative.”

The Petriks sued Superior Dairies, Superior’s insurer, New Hampshire Insurance Company, and Irving Charles. Counts I and II named all three defendants and sought compensatory damages for their personal injuries caused by Charles’ negligent operation of Superior’s truck. Count III was directed only at Superior Dairies, its insurer and Richard Williams, Superior Dairies’ employee who hired Charles. Count III sought compensatory and punitive damages for Superior’s alleged negligence in hiring Charles as a truck driver with actual and. constructive knowledge of his bad driving record.

The appellees filed a third party complaint against David Petrik and his insurer, cross-appellant Automobile Club of Southern California, Inc. Cross-appellant Automobile Club denied coverage to David Pe-trik based on the family exclusion clause.

In this appeal, appellants John and Claudine Petrik argue that the trial court erred in granting a summary judgment against them on count III of their complaint. Cross-appellant Automobile Club of Southern California contests the trial court’s granting the cross-appellees’ motion for summary judgment on the issue of coverage.

The Petriks argue that the trial court erred in granting summary judgment against them in count III of their complaint because (1) Florida law recognizes a cause of action for punitive and compensatory damages against an employer for willful and wanton disregard of others’ rights in hiring an employee; (2) issues of fact exist which bear on the propriety of their claim for punitive damages; and (3) it was error to hold that punitive damages could not be awarded against the employer unless the .allegedly negligent employee was also sued for punitive damages.

The appellants’ evidence and allegations, that Superior Dairies had actual or constructive knowledge of Charles’ history of traffic tickets and accidents, did not amount to a “reasonable basis for an inference of wantonness, actual malice, deliberation, gross negligence, or utter disregard of law . . .,” on the part of Superior Dairies. Winn and Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214, 222-23 (1936). Accord, Florida Power Corp. v. Scudder, 350 So.2d 106 (Fla. 2d DCA 1977). The claim for compensatory damages against Superior and its employee Williams, based on negligent hiring, was also properly dismissed, since those negligence theories impose no liability on Superior Dairies different from that arising out of counts I and II of the complaint which alleged Superior’s responsibility for Charles’ driving under the doctrine of respondeat superior. Clooney v. Geeting, 352 So.2d 1216 (Fla. 2d DCA 1977). The Clooney court explained that allowing a plaintiff to sue the employer under those additional negligence theories would be unduly prejudicial to the defendant employer, since the employee-driver’s past driving record would be admissible to show negligent hiring or employment, but not to show the driver’s negligence which the employer’s liability is based on under the theory of respondeat superior. Clooney, supra at 1220; citing Dade County v. Carucci, 349 So.2d 734, 735 (Fla. 3d DCA 1977). The trial court did not err in granting summary judgment against count III of the appellants’ complaint.

On cross-appeal, Automobile Club of Southern California argues that the trial court erroneously granted summary judgment against it on the issue of coverage. First, Automobile Club argues, California law, which upholds family exclusion clauses such as the one in the Petrik’s policy, should have been applied in construing the insurance contract. We disagree. The State of Florida had significant contacts with the automobile liability policy which justified an interpretation of it under Florida law. The car was garaged in Florida, as it had been for 46 weeks in the prior year; the owner and the operator of the car resided in Florida; the insurer’s files showed that it knew that the risk was principally in Florida; finally, the accident occurred in Florida. See Gillen v. United Services Automobile Association, 300 So.2d 3 (Fla.1974) and Johnson v. Auto-Owners Insurance Company, 289 So.2d 748 (Fla. 1st DCA 1974). Distinguish Jack Pickard Dodge, Inc. v. Yarbrough et al., 352 So.2d 130 (Fla. 1st DCA 1977).

As to the applicability of the family exclusion clause in Florida, we recently held in Florida Farm Bureau v. GEICO, 371 So.2d 166 (Fla. 1st DCA 1979), that such clauses did not bar recovery of a third party contribution claim against a joint tortfeasor who was the husband of the injured plaintiff and his insurer. The wife-plaintiff sued the defendant for personal injuries received in an automobile accident in which she was a passenger in the car driven by her husband. The defendant filed a third party complaint against the husband and his insurer, seeking contribution. The insurer denied coverage based on a family exclusion clause, but the trial judge held the exclusion inapplicable. We found that the public policy in protecting an insurer from collusive law suits which supported such clauses was not served within the context of contribution claims against a joint tortfeasor, and held that the policy behind the Uniform Contribution Among Joint Tortfeasors Act, § 768.31, Fla.Stat. (1977), apportioning joint tortfeasors’ responsibility for payment of claims of innocent injured parties, mandated that such clauses not apply to contribution claims such as this. Compare Shor v. Paoli, 353 So.2d 825 (Fla.1977). Distinguish Reid v. State Farm Fire and Casualty Co., 352 So.2d 1172 (Fla.1977). In Florida Farm Bureau v. GEICO, supra, we certified the question of whether a family exclusion clause in an automobile liability policy would control over § 768.31, where the tortfeasor against whom contribution is sought is the husband of the injured plaintiff, to the Florida Supreme Court as being a question of great public interest. In this case we certify also the following question to the Florida Supreme Court as being one of great public interest:

DOES A FAMILY EXCLUSION CLAUSE IN AN AUTOMOBILE INSURANCE POLICY CONTROL OVER THE UNIFORM CONTRIBUTION AMONG JOINT TORTFEASORS ACT TO PREVENT ONE TORTFEASOR FROM SEEKING CONTRIBUTION FROM ANOTHER TORTFEASOR?

The summary judgments are affirmed.

MELVIN, J., and MASON, ERNEST E., Associate Judge, concur.

ON PETITION FOR REHEARING

ERVIN, Acting Chief Judge.

The Petriks contend that this court erred in affirming the summary judgment as to Count III of the complaint. We conclude that there was no genuine issue of material fact which would permit the submission of punitive damages to the jury and therefore affirm that portion of the summary judgment. There was no evidence or allegations that Superior’s actual or constructive knowledge of its,driver’s history of traffic tickets and accidents amounted to a “reasonable basis for an inference of wantonness, actual malice, deliberation, gross negligence or utter disregard of law . . ..” Winn and Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214, 222-23 (1936). See also Clooney v. Geeting, 352 So.2d 1216 (Fla. 2d DCA 1977).

We agree, however, with appellants that their claim for compensatory damages as to Count III against Superior and Williams was improperly dismissed. The statement in our original opinion that “those negligence theories impose no liability on Superior Dairies different from that arising out of Counts I and II of the complaint . . was incorrect. Clooney v. Geeting, supra, held that where separately stated theories in counts of a complaint allege no additional liability in a motor vehicle accident case, a trial court should not allow them to be presented to the jury since the desirability of allowing such separate theories in the absence of additional liability was outweighed by potential prejudice to the defendants. Here Count III alleged not only a different theory than that stated in Counts I and II but was also one which, if proved, imposed additional liability upon a defendant not named in either counts one and two. Negligent hiring and employment are legitimate bases for recovery. Mallory v. O’Neil, 69 So.2d 313 (Fla.1954); McArthur Jersey Farm Dairy, Inc. v. Burke, 240 So.2d 198 (Fla. 4th DCA 1970). Moreover both the agent and the principal are subject to suit for their own respective negligence. Greenberg v. Post, 155 Fla. 135, 19 So.2d 714 (1944).

The stated reason in Clooney v. Geeting, supra, for disallowing evidence of the prior driving record of the employee was the prejudice which inured to an employer in an action seeking respondeat superior damages. That reason is dissipated here, since evidence must necessarily be presented to the jury on the issue of Williams’ liability in allegedly negligently hiring Charles. Superior Dairies is, therefore, subject to suit in Count III for compensatory damages to the same degree as in Counts I and II.

The petition for rehearing is granted in part and our opinion filed April 26, 1979 is vacated insofar as it conflicts with this order granting the petition.

MELVIN, J., and MASON, ERNEST E., Associate Judge, concur.

      . In New Hampshire Insurance Company v. Petrik, 343 So.2d 48 (Fla. 1st DCA 1977), we reversed the trial court’s dismissal of the initial third party complaint and held that a defendant may sue a joint tortfeasor for contribution in a third party action. In the second third party complaint, Petrik’s insurer was named also.


author: MOORE, Judge.

text:
    Jeffrey A. PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. 77-1152.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1979.
    Richard L. Jorandby, Public Defender, Tatjana Ostapoff and Lorrie Robinson, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

Appellant entered a plea of nolo conten-dere to a charge of burglary, specifically reserving the right to appeal the denial of his motion to suppress his confession. Subsequently, in Brown v. State, 376 So.2d 382 (Fla.1979), the court held that as a matter of law a confession may not be considered dispositive of the case for purposes of an Ashby nolo plea. The court went on to state:

Due to the varying pronouncements of the law in this area, and in order to eliminate any possibility of prejudice, petitioner will be given the opportunity to withdraw his plea of nolo contendere and plead anew if he so desires.

At 385.

Accordingly, the instant cause is remanded to the trial court in order to permit the appellant to withdraw his plea and plead anew.

ANSTEAD and BERANEK, JJ., concur.

      . See State v. Ashby, 245 So.2d 225 (Fla.1971).


text:
    Raymond Allen HOWELL, Appellant, v. STATE of Florida, Appellee.
    No. NN-465.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1979.
    Rehearing Denied Feb. 5, 1980.
    V. Hulslander of O’Connell & Hulslander, Gainesville, for appellant.
    Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This appeal is from an order of the Circuit Court for Alachua County denying, after an evidentiary hearing, a motion filed March 7, 1979, to vacate a judgment and 30-year sentence entered in 1975 based on a plea of nolo contendere to a charge of sexual battery under § 794.011, F.S.

The order finds:

Defendant appeared before the Court on November 17,1975, and withdrew his previously entered plea of not guilty in case 75-528-CF and plead nolo contendere to sexual battery as charged in Count 2 of the information. The Court at that time received written forms signed by the Defendant and counsel, all of which were filed in the case and are a part of the record which substantially set forth the voluntariness of the plea. Before accepting the plea, the Court inquired and determined from the state and defense counsel that there was a sufficient factual basis to support the plea. In addition, the Court advised the Defendant that if the Court should accept the plea there remained nothing further to do except to impose sentence and advised him that the sentence could be a maximum term of life imprisonment. The Court specifically asked the Defendant if he understood the above, and the Defendant replied, “Yes, sir.” Thereafter the Court conditionally accepted the plea and requested a presen-tence investigation. . . . Before sentencing, the Defendant was . informed that a life felony was involved, the penalty for which could result in imprisonment for life or for a term of not less than 30 years should the Court sentence him.

Appellant concedes that the procedure followed by the trial court may have been legally adequate at the time of the 1975 hearing, when the applicable rule required the court to determine “that the circumstances surrounding the plea reflect a full understanding of the significance of the plea and its voluntariness.” (e. s.) Fla.R. Crim.P. 3.170(j). However, a subsequent change in the rule now requires a specific determination that the defendant understands “the mandatory minimum penalty provided by law.” (e. s.) Fla.R.Crim.P. 3.172(c)(i). This revision is contained in amendments which by their express provision “shall govern all proceedings within their scope after . . . July 1,1977” (e. s.), and has been applied upon collateral attack involving convictions obtained after that date. Wilson v. State, 378 So.2d 1258 (Fla. 1st DCA 1979). In the present case appellant was sentenced more than two years before the 1977 amendments. While certain changes effective during the pend-ency of a direct appeal have been given retroactive application in limited circumstances (Hunt v. State, 318 So.2d 523 (Fla. 1st DCA 1975), and Collins v. Wainwright, 311 So.2d 787 (Fla. 4th DCA 1975)), such application has been denied when the issue is raised by collateral proceeding. Heilmann v. State, 310 So.2d 376 (Fla. 2d DCA 1975); Gay v. State, 330 So.2d 162 (Fla. 1st DCA 1976). We conclude that the order appealed here accurately holds that the applicable standards were met at the 1975 hearing in this case, and we find no merit in appellant’s contention that later amendment requires reversal.

In addition the order appealed properly notes a distinction between the statutory provision for a minimum term of sentence which was involved in the present case, and the specific reference in the cited rule to a penalty which is both minimum and mandatory:

Both present counsel and former counsel cite Norris v. State, 343 So.2d 964 (1st DCA 1977) which the Court finds does not apply in this case. That case involved a mandatory minimum sentence which required the defendant to serve three calendar years before being eligible for parole or statutory gain time. This case involves no mandatory minimum term. The penalty for the crime to which this Defendant plead guilty is a sentence for a term of life or not less than 30 years and is not a mandatory minimum sentence. The probability of probation existed in this case. Again defense counsel were in error when they suggested that Defendant could not receive probation. The offense to which the Defendant plead in this case is not one which would have prohibited the Court from withholding adjudication and placing the Defendant on probation since it did not involve the use of •a firearm.

The order is accordingly affirmed.

LARRY G. SMITH, SHAW and WENT-WORTH, JJ., concur.


text:
    In the Interest of J.K.H., a Child, Appellant, v. STATE of Florida, Appellee.
    Nos. 78-2626, 78-2627.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1980.
    Richard L. Jorandby, Public Defender, and John M. Conway, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This case is remanded with instructions to the lower tribunal to conduct such further proceedings as may be necessary and appropriate to permit the court to make the specific findings mandated by Subsection 39.09(2) Florida Statutes 1977 and to enter an order based upon and enumerating those findings.

BERANEK, HERSEY and GLICK-STEIN, JJ., concur.


author: LETTS, Judge. RIVKIND, LEONARD, Associate Judge,

text:
    STATE of Florida, Appellant, v. Frank J. BRADY; Philip M. Eckard; Ronald B. Elliot; David A. List; Hermogenes Manuel, Appellees. STATE of Florida, Appellant, v. Hermogenes MANUEL and David List, Appellees.
    Nos. 78-2121, 78-2771.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1980.
    Rehearing Denied March 19, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellant.
    Philip G. Butler, Jr., of Foley, Colton & Butler, P. A., West Palm Beach, for appel-lee — Brady.
    Steven M. Greenberg of Pertnoy & Greenberg, P. A., Miami, for appellees — Elliot and Eckard.
    Joel S. Fass of Colodny & Fass, North Miami, for appellee — Manuel.
    Alan I. Karten, Miami, for appellee — List.
   LETTS, Judge.

Involved is the forced entry by deputies without a search warrant onto 1800 acres of land, fenced, locked, occupied and posted. The trial judge granted the motion to suppress. Also involved is a speedy trial rule discharge because the information alleging attempted possession of cannabis in excess of 100 pounds did not also contain language reflecting intent to sell, manufacture and deliver. We affirm the former and reverse the latter.

The first point considered here revolves around the State’s contention that reasonable expectations of privacy do not extend to “open fields” which cannot be considered part of the curtilage regardless of the fact that they may be fenced. See Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924) and U. S. ex rel. Saiken v. Bensinger, 546 F.2d 1292 (7th Cir. 1976). However the term “open fields” does not seem to us to embrace a well fenced, locked and posted property such as exists here. For example, in United States v. Williams, 581 F.2d 451 (5th Cir. 1978) the fence was described as a dilapidated hog fence crossed by the agents at a place where it had been walked down almost to the ground. As the Williams court put it “. . . whatever minor practical significance [the fence] may have retained for the hogs, it has no legal significance for us.” (at p. 454). By contrast the deputies in the case at bar could only gain entrance by cutting with bolt cutters the chain lock on a gate.

We have searched for court decisions interpreting the “open fields” doctrine discussed in Hester, supra, and for a clear definition of an open field. The case we like the best is from the Supreme Court of Wisconsin in which the defendant had killed his wife and buried her under a pile of rocks on his 40 acre unfenced farm 450 feet from the farmhouse. Conrad v. State, 63 Wis.2d 616, 218 N.W.2d 252 (1974). The Conrad court discussed the trend away from fourth amendment property rights and focused on the succeeding reasonable expectation of privacy test enunciated in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). However, we agree with the Conrad decision that Katz did not rule out the open fields of Hester altogether. Accordingly, the question of the reasonable right of privacy may well still depend in part on whether the field is truly open or whether it is fenced with the obvious purpose of keeping people out. (See Williams, supra, at p. 453.) As the Conrad court facetiously remarked “. . . it cannot be doubted that whoever buried [the wife’s] body under the rock pile did so . arguendo in the reasonable expectation of privacy.” Notwithstanding, the Conrad court held that because the rock pile was in an unfenced open field 450 feet from the house the evidence revealed by the search was permissible even though it constituted a “clear trespass.”

It is conceded that nowhere can we find a clear-cut definition of “open fields,” however the recent Fifth Circuit decision in Williams, supra, comes the closest to doing so. In Williams, as already reported, the court was dealing with an almost walked down delapidated hog fence. Yet the case several times infers that a fence would make a difference and we agree it should especially if forced entry is required. For instance on page 454 the Williams court said:

The fence in question here was not a privacy fence or an exclusionary one; in its best days it was meant to do no more than keep the hogs in, not to keep anyone out. In its condition when the agents stepped over it, it offered little, if any, impediment . . . . In view of these considerations, we think that the fence was not such as to create . . . any reasonable expectation of added privacy. . ..

It is also clear that many of the cases which we have discovered that speak of open fields involve fact situations in which the property is unfenced or marginally fenced. At first blush, one exception to this appears to be Care v. United States, 231 F.2d 22 (10th Cir. 1956). However, even in that case the facts never suggest that access through the “hog tight fence” required forced entry. Nowhere have we discovered a case where warrantless searches have been allowed based on a necessary breaking down of a fence, lock or gate to get on the property, absent exigencies which are not present in the case before us. There was plenty of time to apply for a warrant here. It is claimed the deputies did not think they had probable cause to get one. Lack of probable cause cannot by itself be used to bolster forced entry, quite to the contrary.

We also discuss the number of acres involved here, namely 1800, within the borders of which one defendant lived in a trailer. Should the number of acres affect one’s reasonable expectation of privacy? We will not endlessly reiterate the subject matter of the many cases cited in this opinion. Suffice it to say that although the closer one is to the actual curtilage the more sacrosanct the reasonable right to privacy becomes, it is equally plain that the total encirclement of property by a fence obviously designed to keep people out, together with signs telling them to do so, evinces an unmistakable desire and expectation on the part of the occupant that no one enter. From out of the language of the sum of the foregoing cases we chose to interpret the right of privacy as reasonable under the facts of this case.

Finally we discuss and distinguish the Florida case of Norman v. State, 362 So.2d 444 (Fla. 1st DCA 1978). In Norman, as in the case before us, the deputy had no warrant and did not obtain one because he thought he had insufficient probable cause for a search. In Norman, arriving at the locked gate of the farm, the deputy climbed over a fence and walked 250 yards to a tobacco barn. Once there he shone a flashlight through the window to reveal marijuana. The First District held that his actions were a trespass, but not an unreasonable search although the court conceded it might have taken a different view had the farm contained an occupied residence.

In reaching its conclusion the First District ignored the United States Supreme Court’s shift to a reasonable right of privacy test and reverted to the Hester, supra, view of fourth amendment property rights around the dwelling house and curtilage, regardless of whether the surrounding fields were fenced. We note the suggestion that Norman might have held otherwise had the farm been occupied and thus distinguish it from the case at bar. Nonetheless even if the case before us had featured an un occupied enclosure, we would have felt compelled to predicate any result, whatever it would have been, on reasonable rights of privacy rather than the right to be secure in property.

On the second point considered, the principal case again is from the First District, this time Aylin v. State, 362 So.2d 435 (Fla. 1st DCA 1978). Aylin did indeed hold as a matter of statutory construction that the Legislature had “subsumed” the new 100 pound provision of Section 893.-13(l)(a)(2), Florida Statutes (1977) into the older prohibition under Section 893.13(l)(a). This being so, the Court concluded that the “intent to sell, manufacture [or] deliver” language was necessary to the information. Lacking it, the charge there under consideration was held to be a first degree misdemeanor requiring trial within 90 days.

In the case now before us, we cannot blame the Trial Judge for following Aylin, since we at the Fourth District had not spoken on the subject. However, we disagree with Aylin and are of the opinion that the Legislature must have intended otherwise.

Possession of any amount of cannabis (unless it is a first offense possession of less than 5 grams) is already a third degree felony under Section 893.13(l)(e). This being so, why go to the trouble of enacting a new provision under Section 893.13(l)(a)(2) declaring it to be a second degree felony to possess over 100 pounds, if the Legislature really did not mean to do so and only intended to restate that the possession of in excess of 100 pounds of cannabis remained a third degree felony as it already was in any event? Such an enactment would be utterly without reason and cannot have been intended.

Under Aylin the result is that possession of 6 grams of cannabis is the same offense as possession of 6 million tons of cannabis, unless the intent to sell, manufacture or deliver language is included in the information, even though the Legislature has enacted a new provision which reads:

“. . . except that the sale, delivery, or possession of in excess of 100 pounds of cannabis as controlled in s. 893.03(l)(c) shall constitute a felony of the second degree . . . .”

We readily concede that this newly enacted language has been inserted into the chapter at a confusing and unfortunate place. (In fact, the whole chapter is a mass of confusion). Nevertheless, while we fault the ineptness of the legislation rather than the subsuming analysis of Aylin, we disagree with the First District’s version of what the Legislature could possibly have intended.

We therefore hold that the mere possession of in excess of 100 pounds of cannabis is a second degree felony and accordingly, the attempted possession thereof a felony in the third degree and subject to the 180 day speedy trial rule.

We recognize that in view of our affirmance of the motion to suppress, this latter conclusion might be moot. Notwithstanding, it may not, and in any event the point is significant, for our ruling here puts us in direct conflict with the First District.

AFFIRMED IN PART, REVERSED IN PART.

MOORE, J., concurs.

RIVKIND, LEONARD, Associate Judge,

concurring in part, dissenting in part.

I agree with the result the Court has reached and concur in its affirmation of the order granting motion to suppress. I respectfully dissent from the portion of the opinion which holds that mere possession of over 100 pounds of cannabis constitutes a second degree felony. I believe that Aylin v. State, 362 So.2d 435 (Fla. 1st DCA 1978) was correctly decided and would follow the decision of our sister court.

      . See for example United States v. Brown, 473 F.2d 952 (5th Cir. 1973) [abandoned farm — no signs — no evidence of breaking to enter — broken down chickenwire fence]; Martin v. U. S., 155 F.2d 503 (5th Cir. 1946) [unenclosed — no occupancy as a residence — no evidence of break in or signs].

      . See also U. S. ex rel. Saiken v. Bensinger, 546 F.2d 1292 (7th Cir. 1976) [fenced — no evidence of break in. This case is interesting for it does not find an open field to be inconsistent with a fence. It also is primarily concerned with the distance between the residence and the area searched. It catalogues several cases on this subject.]

      . The one exception, if it be one, appears to be the Norman case infra.

      . It could not ignore Williams, supra, from the Fifth Circuit in New Orleans which did not issue until a month later.


author: DOWNEY, Chief Judge.

text:
    John COLONEL and Virginia M. Colonel, his wife, Petitioners, v. Sophia S. REED, Respondent.
    No. 79-2199.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1980.

      Bruce W. Jolly of Shailer & Purdy, Fort Lauderdale, for petitioners.
    Perry W. Hodges, Jr., of Hodges, Gossett, McDonald & Wakefield, Hollywood, for respondent.
   DOWNEY, Chief Judge.

By petition for writ of certiorari we are asked to review a final order of the Circuit Court in its appellate capacity affirming a final judgment of the County Court of Bro-ward County.

The petition alleges that a final judgment of eviction was entered in the County Court of Broward County on November 8, 1977. A timely appeal of that judgment was perfected to the Circuit Court resulting in a reversal and remand of the judgment by Opinion filed June 16, 1978. The Circuit Court mandate, based upon the opinion of June 16th, was not issued until December 1, 1978. However, prior to the issuance of the mandate the cause was tried once again in the County Court and a final judgment was entered November 28, 1978. A timely appeal was taken from that judgment which resulted in the judgment’s being affirmed by order of the Circuit Court dated June 29, 1979. It is that order which this petition presents for our consideration.

Petitioner contends that the Circuit Court departed from the essential requirements of law in affirming the County Court judgment of November 28, 1978, because the County Court did not have jurisdiction to retry this case prior to the issuance of the mandate. Respondent maintains that the Clerk’s failure to fulfill his ministerial duty in issuing the mandate as required by Florida Appellate Rule 9.340(a) should not militate against his interests, particularly where the question of lack of jurisdiction was not presented to the trial court.

The failure of the parties or the trial court to notice the absence of a mandate prior to the second trial of the case is unfortunate, particularly because this case has already labored through two trials and two appeals. However, the question involved relates to jurisdiction. Years ago the Supreme Court of Florida, in State ex rel. Davis v. City of Clearwater, 108 Fla. 635, 635, 146 So. 836, 836 (Fla.1933), held that “[tjhere can be no twilight zone in jurisdiction nor vacuum in its application. It is either effective full of force or not at all.”

The mandate of an appellate court is the official method of communicating its judgment to the inferior tribunal. Livingston v. State, 113 Fla. 391, 152 So. 205 (Fla.1933); Tierney v. Tierney, 290 So.2d 136 (Fla. 2d DCA 1974); 3 Fla.Jur.2d § 402, Appellate Review. As Justice Whitfield phrased it in his concurring opinion in the Clearwater case, supra:

Where on appeal or writ of error, the Supreme Court affirms or reverses a judgment, decree or order, such court does not lose jurisdiction of the cause until the mandate of the Supreme Court is duly remitted to, and received in, the office of the clerk of the lower court. 146 So. at 837.

Obviously, if the appellate court does not lose jurisdiction until the mandate is issued, the trial court cannot regain jurisdiction until that time. 3 Fla.Jur.2d, § 31, Appellate Review.

We hold that the County Court had no jurisdiction to proceed with the second trial and entry of judgment prior to the receipt of the mandate from the Circuit Court on December 1, 1978. Therefore, the order of the Circuit Court affirming the judgment of November 28, 1978, constitutes a departure from the essential requirements of law requiring issuance of the Writ of Certiorari.

The order of the Circuit Court dated June 29, 1979, is quashed and the cause is remanded to the Circuit Court with directions to reverse the County Court judgment of November 28, 1978, and remand the case to the County Court for further proceedings.

MOORE and HERSEY, JJ., concur.


author: . PER CURIAM.

text:
    STATE of Florida ex rel. Robert AVERA, Relator, v. Honorable Carl HARPER, Circuit Judge of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, Respondent.
    No. 80-42.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1980.
    Rehearing Denied March 19, 1980.
    Edward A. Garrison, Kohl, Springer, Springer & Garrison, Palm Springs, for relator.
    No appearance for respondent.
   . PER CURIAM.

Robert Avera filed a suggestion for writ of prohibition claiming a violation of his speedy trial rights. Rule 3.191, Fla.R. Crim.P. The stipulated facts show that he was arrested in St. Lucie County on a St. Lucie County warrant on March 13, 1979. Immediately subsequent to his arrest he was informed of an outstanding Palm Beach County warrant and a “hold” was lodged against him. Avera was sentenced on the St. Lucie charges on September 14, 1979 and was transferred to the Palm Beach County Jail on September 18, 1979.

The determinative question is when did the speedy trial time begin to run for the Palm Beach County charges — March 13th or September 18th? The trial judge was eminently correct in selecting the latter date. Most recently in State v. Camper, 356 So.2d 1329 (Fla. 4th DCA 1978) this court indicated that

“. . . the speedy trial time does not begin to run in favor of an individual who is incarcerated in another jurisdiction and against whom a detainer has been lodged until the authority which filed the detain-er obtains custody of the individual.

See, also Eaddy v. State, 352 So.2d 98 (Fla. 4th DCA 1977), State v. Bassham, 352 So.2d 55 (Fla.1977) and Cameron v. State, 376 So.2d 248 (Fla. 5th DCA 1979).

Accordingly the suggestion for writ of prohibition is denied.

DOWNEY, C. J., and HERSEY and HURLEY, JJ., concur.


text:
    Loren E. HAMM, Appellant, v. ST. PETERSBURG BANK & TRUST COMPANY, Appellee.
    No. 78-1952.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 1980.
    Joseph P. McNulty of McNulty, Moritz & Dickey, Largo, for appellant.
    Stephen C. Chumbris of Harrison, Greene, Mann, Rowe, Stanton & Mastry, St. Petersburg, for appellee.
   PER CURIAM.

This is an appeal from a final summary judgment of mortgage foreclosure. The issue is whether one of the notes secured by the mortgage was usurious.

Appellant executed several notes to ap-pellee, each secured by a mortgage on certain real property. He eventually defaulted on the notes, and appellee brought suit to foreclose the mortgage. The largest of the notes is the only one involved in this appeal. In answer to appellee’s suit to foreclose, appellant asserted an affirmative defense of usury.

The note in question called for the repayment of $290,000 in two years, together with interest at 9% per annum. The $290,-000 principal of the note included a $5,800 loan charge by the appellee. On motion for summary judgment, appellant contended the loan charge must be treated as additional interest. Appellee, however, contended the loan charge was a legitimate “commitment fee”, since appellant would draw the loan funds over an extended period rather than all at once, and would pay interest on only the monies actually received. The lower court ruled that even if the $5,800 loan charge were treated as interest the loan would not be usurious under Section 687.03(3), Florida Statutes. In so doing, the lower court also held that the principle of Wilson v. Conner, 106 Fla. 6, 142 So. 606 (1932) was not applicable in the determination of usury, at least in cases of this kind. We hold that the trial court erred on both points and therefore reverse.

The parties have raised three issues, which we shall consider in turn. (1) Is the $5,800 commitment fee properly characterized as interest? (2) Does resort to the formula in Section 687.03(3) constitute a retroactive application? (3) Does the formula in Section 687.03(3) cause the transaction to be free of usury?

THE COMMITMENT FEE

If the $5,800 commitment fee is not interest, the loan could not be deemed usurious. Appellee contends that the $5,800 was a charge for setting aside the proceeds of the loan, and, like the fee in Financial Federal Savings & Loan Association v. Burleigh House, Inc., 305 So.2d 59 (Fla.3d DCA 1974), was not properly characterized as an interest payment. In Burleigh House, the commitment fee was exacted as part of a construction loan agreement under which portions of the principal sum were periodically released as construction proceeded. Here, the transaction was not a construction loan, and although some of the principal sum remained with the lender, appellant apparently could have demanded his principal at any time. Thus, the justification for a commitment fee may not have been as persuasive in this case. For purposes of our consideration of the correctness of the summary judgment, however, we shall assume, as did the lower court, that the $5,800 reserved from the principal was in actuality a charge for the use of the money, i. e., interest.

RETROACTIVITY

By 1977 the legislature had amended Section 687.03(3) to read in pertinent part as follows:

For the purpose of this chapter, the rate of interest on any loan of money shall be determined and computed upon the assumption that the debt will be paid according to the agreed terms, whether or not said loan is paid or collected by court action prior to the term of said loan, and any payment or property charged, reserved, or taken as an advance or forbearance, which is in the nature of, and taken into account in the calculation of, interest shall be valued as of the date received and shall be spread over the stated term of the loan for the purpose of determining the rate of interest. The spreading of any such advance or forbearance for the purpose of computing [the rate of] interest shall be calculated by first computing the advance or forbearance as a percentage of the total stated amount of the loan. This percentage shall then be divided by the number of years, and fractions thereof, of the loan according to its stated maturity date, without regard to early maturity in the event of default. The resulting annual percentage rate shall then be added to the stated annual percentage rate of interest to produce the effective rate of interest for purposes of this chapter.

As will be noted in our consideration of the third question, the lower court’s application of the formula contained in subsection (3) appears to make the loan at hand free of •usury. However, the formula did not become a part of subsection (3) until after the loan was made. Therefore, if the formula does not apply to this transaction, the rule expressed in Wilson would undoubtedly cause the loan to be usurious.

The general rule is that the usury statutes involve remedies and create no substantive rights. Therefore, absent a showing of legislative intent to the contrary, a note will not be considered usurious unless the law states that it is at the time of final adjudication. Tel Service Co., Inc. v. General Capital Corporation, 227 So.2d 667 (Fla.1969). Here, however, appellant argues that the legislature expressed a clear intent to make the Section 687.03(3) formula apply only to notes executed after its enactment. We do not agree.

Appellant bases his argument on Section 687.03(2)(b), Florida Statutes (1977). Prior to 1976 there was no subsection (2)(b). That year the legislature amended Section 687.03 to provide certain exemptions from the usury laws. Ch. 76-124, Laws of Florida. Section 1 of Chapter 76 — 124 contained a list of those exemptions and specifically placed them as subsection (2) of Section 687.03. Section 2 of Chapter 76-124 contained a prospective application clause which read as follows:

This act shall apply only to loans or advances of credit made subsequent to the effective date of this act. All present laws shall remain in full force and effect as to loans or advances of credit made prior to the effective date of this act.

The legislature made no statement in Chapter 76-124 as to the placement of Section 2 within Section 687.03, but the Statutory Revision Division of the Joint Legislative Management Committee divided subsection (2) of Section 687.03 into subsections (a) and (b) and placed Section 2 of Chapter 76-124 into subsection (2)(b) of Section 687.03. In 1977, the legislature amended Section 687.-03(3) by adding the formula for computing advance interest. That amendment was Chapter 77-374, Laws of Florida, and contained neither a prospective application clause nor a republication of Section 687.-03(2)(b).

In view of this legislative history, we think that appellant is incorrect in suggesting that the legislature meant for the prospective application clause in subsection (2)(b) to apply to the formula in subsection (3). Moreover, the legislature’s use of the word “act” in subsection (2)(b) convinces us that the legislature meant subsection (2)(b) to apply only to those matters contained in Chapter 76-124 which is now Section 687.-03(2)(a) and not to the rest of Section 687.-03. Consequently, in deciding whether appellant’s loan is usurious, the legal effect of the formula must be considered. As we view this case, however, we don’t think this changes anything. We hold the trial court erred in construing the formula now in Section 687.03(3) as changing the requirement of 687.03(1) or the rule in Wilson v. Conner, supra, as we shall more fully discuss hereafter.

APPLICATION OF SUBSECTION (3)

The lower court applied the formula in subsection (3) to free the loan of usury by substituting the foregoing ingredients of the loan into the stated formula as follows:

1. The spreading of any such advance or forbearance for the purpose of computing the rate of interest shall be calculated by first computing the advance or forbearance as a percentage of the total stated amount of the loan.
(a) Advance of $5,800.00.
(b) $5,800.00/$290,000,00 = 2% of total stated amount.
2. This percentage shall then be divided by the number of years, and fractions thereof, of the loan according to its stated maturity date, without regard to early maturity in the event of default.
(a) Two year term.
(b) 2% spread over two years is 1% annual percentage rate.
3. The resulting annual percentage rate shall then be added to the stated annual percentage rate of interest to produce the effective rate of interest for purposes of this chapter.
(a) The resulting annual percentage rate from paragraph 2(b) above is 1% per year.
(b) The stated annual rate on the note is 9% per year.
(c) The effective rate of interest is 9% + 1% = 10%.

On the other hand, the appellant contends that if subsection (3) should be applied as interpreted by the lower court it would give carte blanche license to unscrupulous lenders to exact usurious interest from needy borrowers. To illustrate, he posits a mortgage loan transaction in which the lender “lends” $10,000.00 represented by a note and mortgage for $10,000 payable in ten years with interest at the rate of 5% per annum. However, $5,000 of the principal represented an additional interest charge. Applying the “formula” of Section 687.03(3) in the form set out above, the interest would be computed as follows:

1. The spreading of any such advance or forbearance for the purposes of computing the rate of interest shall be calculated by first computing the advance or forbearance as a percentage of the total stated amount of the loan.
(a) Advance of $5,000.00.
(b) $5,000.00/$10,000.00 = 50% of total stated amount.
2. This percentage shall then be divided by the number of years, and fractions thereof, of the loan according to its stated maturity date, without regard to early maturity in the event of default.
(a) Ten year term:
(b) 50% spread over ten years is 5% annual percentage rate.
3. The resulting annual percentage rate shall then be added to the stated annual percentage rate of interest to produce the effective rate of interest for purposes of this chapter.
(a) The resulting annual percentage rate from paragraph 2(b) above is 5% per year.
(b) The stated annual rate on the note is 5% per year.
(c) The effective rate of interest is 5% + 5% = 10%.

Under the lower court’s rationale, the rate of interest would not be usurious. Yet, at the end of ten years the borrower would have paid the lender $15,000 ($10,000 in stated principal plus $5,000 interest over a ten year period) even though the principal sum actually received by the borrower is only $5,000. Under the lower court’s interpretation of the formula the lender would be permitted to charge 20% per annum for the use of his money. We hasten to point out that the provisions of the loan in the instant case were not nearly so exaggerated. Nevertheless, we are concerned by the fact that if we construe the statute in the manner necessary to uphold the lower court, we have also put our stamp of approval on a loan of the type suggested by appellant’s hypothetical.

The issue presented in this case is not unique to Florida. An interesting annotation at 57 A.L.R.2d 630 (1958) entitled “Taking or charging interest in advance as usury”, points out how the courts in various jurisdictions have treated .the issue. Even though the pertinent statutes vary, several principles evolve from a study of these decisions. At the outset, it is clear that where a lender takes points, a bonus, a commission or some other advance charge for a loan, courts consider such charge to be interest for the purpose of determining usury. Second, it appears that courts do not deem the advance retention of the entire amount of interest at the maximum rate usurious in the case of short term loans, particularly in the case of bank loans. Even though this necessarily results in interest on the money actually received in excess of the maximum rate, courts appear to have sanctioned the practice as a result of long term custom. However, the cases consistently reveal that the maximum length of a short term loan within this rule is one year. See Miller v. First State Bank, 551 S.W.2d 89 (Tex.Civ.App.1977); Annot., 57 A.L.R.2d 630, 637 (1958).

A third conclusion that the annotation reaches is that the majority of jurisdictions recognize the need to compute interest upon the actual sum received rather than upon the stated principal. E. g., Tanner Development Co. v. Ferguson, 561 S.W.2d 777 (Tex.1977). The reasoning is evident. The borrower should only have to pay interest upon the amount of money he actually obtains. Finally, most jurisdictions hold that where charges withheld from the principal of the loan, together with the total amount of money to be paid as interest, exceed the highest amount of interest which the lender could have required under the legal maximum for the term of the loan, the loan is usurious. The cases of Long Realty Co. v. Breedin, 175 S.C. 233, 179 S.E. 47 (1935), and McCall v. Herring, 116 Ga. 235, 42 S.E. 468 (1902), provide good illustrations of the computations which are necessary in order to make this determination.

Because the term of the loan in the instant case was two years, we need not be concerned with the principles which may be applicable to short term loans. Cf., Purvis v. Frink, 57 Fla. 519, 49 So. 1023 (1909), which held that taking advance interest at the maximum rate caused a short term loan, albeit not a bank loan, to be usurious.

We believe that the ultimate test for usury is always whether the debtor is required to pay back an amount which exceeds what he actually received plus interest on that amount at the maximum annual rate computed over the length of the loan.

We recognize that our conclusion may appear to ignore the formula contained in subsection- (3) of the statute. However, we do not believe that the legislature could have intended for its statute to be read in such a way as would permit the outcome portrayed in the hypothetical.

We believe that subsection (3) can be read in conjunction with subsection (1) to reach a result compatible with our determination. Subsection (1) provides the statutory definition of usury. It has remained essentially the same for many years. See §§ 3104-3106, General Statutes (1906) and Purvis v. Frink, supra. By adding subsection (3) in its present form the legislature did not change the longstanding definition of usury nor convert a normally usurious transaction into an innocent one. Rather, it addressed the problem produced by acceleration where there are charges other than the stated interest which must be included as “interest” for the purpose of usury computations. Where the note runs its full term the spreading is automatically accomplished. There is no requirement, therefore, to apply subsection (3), but if you do the result is the same.

Prior to the amendment of subsection (3) various appellate decisions had established that such additional charges for the use of the lender’s money had to be valued as of the date received, which subsection (3) still requires. The case law, however, indicated this forced such charges to be either taken into account solely within the year received or spread over the actual duration of the loan (which in case of a default often resulted in a duration less than the stated term). See the excellent survey of earlier cases in First Mortgage Corp. of Vero Beach v. Stellmon, 170 So.2d 302 (Fla.2d DCA 1964). Apparently the legislature didn’t favor either option where there was acceleration. It therefore directed in subsection (3) how such charges shall be treated for usury purposes when acceleration occurs.

Appellate decisions had also determined that where such charges were added into the loan (provided for up front by increasing the amount of the loan), then the true loan principal upon which interest at the statutory rate may be charged is the face amount of the note less the amount of the loan made to cover such charges. Wilson v. Conner, supra. This sum (the additional charges) must be treated as a part of the total “interest” being charged, and therefore, is not part of the loan principal for usury purposes. In other words, the face amount of the note was not the “actual principal sum received” on which the allowable statutory rate may be charged under subsection (1). Sometimes the face amount of such notes was termed a “fictitious principal”. Wilson v. Conner, supra. Subsection (3) in no way addresses or alters this result or treatment of that portion of the loan that is to cover the extra charges “in the nature of interest”.

Subsection (3) simply provides the specific manner in which charges “in the nature of interest” are to be taken into account. They are still to be “valued as of the date received”, but they must be “spread over the stated term of the loan.” However, subsection (3) did not change the rule established by Wilson v. Conner, supra, and its progeny. Usury is still determined by subsection (1), and the maximum payback is specifically limited to the “actual principal sum received, together with interest (thereon) at the rate of 10% (per an-num)”.

As we read subsection (3) it is simply saying:

Other charges determined to be in the nature of interest shall be spread over the stated term of the loan regardless of acceleration.

The legislature then later added the formula or mathematical method of spreading such charges. Stated interest charges, by their “per annum” character, are still computed over the actual period of the loan whether accelerated or full term.

Applying these principles to the loan transaction involved in this case leads to the following results.

If the charge ($5,800) is treated as “in the nature of interest”, then the true amount of the loan is $290,000 less $5,800 or $284,200. Under subsection (1) the lender can only charge or require the debtor to pay back that sum plus 20% (10% per annum for two years) or $341,040. Any amount the debtor is required to pay above this last sum would make the transaction facially usurious.

Now, in fact, the debtor is required (by the terms of the note) to pay back $290,000 plus 9% per annum for two years, or $342,-200. Since the loan actually ran its full term, (really longer) we do not have the acceleration problem, and thus, no need to even resort to subsection (3). The transaction is facially usurious by an overcharge of $1,160 above the statutory maximum allowable payback. The total payback of $342,-200 actually includes $58,000 in charges for use of $284,200, which computes to an annual rate of 10.204%.

If the formula in subsection (3) is applied the same result is reached. As required by that formula, we first convert the charges other than the stated rate of interest into an annual percentage. The charge, of course, was the $5,800, but since it was included in the note, the lender got 9% per annum interest on it also. For the two-year period that comes to $1,044, to make a total additional charge of $6,844, not $5,800 as assumed by the lower court. Comparing $6,844 to $284,200, the total stated amount of the loan, produces an annual percentage of 1.204%. Add that to the stated interest rate of 9% and the resulting effective rate of interest on the loan of $284,200 is 10.204% per annum.

A third computation can be used to crosscheck the above results against each other. As noted earlier, the note in question required over its two-year term a payback $1,160 in excess of that permitted by the statute. A simple computation discloses this overpayment exceeds the allowable 10% annual rate by .204% per annum. The point is that however you compute it, and whichever subsection is utilized, the result is precisely the same, which is as it should be.

Since the loan was facially usurious, it was error to conclude as a matter of law that usury had not occurred. Of course, the determination of usury also requires proof of intent, so whether or not this transaction was actually usurious remains an issue which must be determined at trial. Dixon v. Sharp, 276 So.2d 817 (Fla.1973).

We reverse the summary judgment with respect to the $290,000 note and mortgage, and remand the case for further proceedings in accordance with the principles expressed herein. Among the issues to be addressed at trial are the true nature of the $5,800 charge, that is whether or not it was truly “in the nature of interest” and, if so, whether the lender made the loan with the requisite usurious intent.

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

      . There were other loan expenses, but they are not material to this appeal since they were not charges for the use of the money.

      . But see Sailboat Apartment Corp. v. Chase Manhattan Mortgage & Realty Trust, 363 So.2d 564 (Fla.3d DCA 1978), wherein our sister court stated the opposite result in dictum without discussion.

      . One might suggest that we ought not be concerned over a loan of the kind outlined in the hypothetical because no borrower would ever be so foolish as to accept its terms. Yet, the very purpose of the usury laws is to protect a hapless borrower from entering into an unconscionable loan agreement because of economic duress.

      . This subsection also serves to specifically reject the contention often made that courts should treat the full amount of advance interest as a charge which must be taken into account in the first year. E. g., Montgomery Federal Savings & Loan Assn. v. Baer, 308 A.2d 768 (D.C.App.1973).

      . Ten percent in Section 687.03(1), Florida Statutes at the time of this case; 18% at the time of this writing.

      . Stated amount of the loan should not be equated with “face amount of the note”, but rather with “actual principal sum received”.

      .The trial court calculated a rate of only 10% by using the stated amount of the note and only $5,800 of the additional charges.


text:
    Reiner G. CACACE, Appellant, v. STATE of Florida, Appellee.
    No. 78-1257.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 1980.
    Rehearing Denied March 19, 1980.
    Thomas Wills, of Law Offices of Philip Carlton, Jr., Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Glenn H. Mitchell, and Mark Kirk, Asst. Attys. Gen., West Palm Beach for appellee.
   PER CURIAM.

Appellant was convicted of possession of cannabis in excess of 100 pounds. Our study of the record convinces us that the initial stopping of appellant’s vessel was improper thus requiring a reversal of the conviction.

Prompted by a report from the Sheriff’s Office of a suspicious boat run aground in the St. Lucie Inlet, law enforcement officers proceeded to the area, encountered a boat which was moving slowing and stopped it. When the boat was stopped one officer noticed a light brown stain on the gunnel area of the boat, possibly attributable to marijuana. When questioned whether the boat was riding low in the water, the officer testified. “Those boats ride low in the water. The water line was lower than normally of a boat that size.”

After stopping the boat, the officers’ first action was to request the registration. When the operator (who was not the appellant) was unable to produce registration, he was allowed to dock the vessel in order to obtain the document. An officer detected the low odor of marijuana after the boat was docked. The officers then boarded the vessel to conduct a safety check and eventually found the contraband for which appellant was charged. Appellant’s motion to suppress the seized contraband was denied giving rise to this appeal.

The evidence adduced at the suppression hearing demonstrates that the arresting officers did not have a founded suspicion that criminal activity was afoot at the time they stopped the vessel in which appellant was a passenger. Consequently, any incriminating evidence they later found and seized was subject to suppression.

Accordingly, the judgment and sentence appealed from is reversed and the cause is remanded with directions to grant the appellant’s motion to suppress.

DOWNEY, C. J., and ANSTEAD, J., and TENDRICH, MOIE J. L., Associate Judge, concur.


author: HURLEY, Judge. BERANEK, Judge,

text:
    STATE of Florida, Appellant, v. William E. MANNING and Bradford C. Ege, Appellee.
    No. 79-803.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 1980.
    Rehearing Denied March 19, 1980.
    Jim Smith, Atty. Gen., Tallahassee and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellant.

      Philip G. Butler, Jr., Foley, Colton & Butler, P.A., West Palm Beach, for appellee.
   HURLEY, Judge.

The state brings this appeaj from the suppression of oral communications and other physical evidence. The trial court found the affidavit in support of a wiretap order to be fatally stale due to a fifty-nine day lapse between the last event viewed by the affiant and the application for the intercept order. It concluded that there had been no showing of extraordinary circumstances to justify an exception to the “thirty day rule” of Rodriguez v. State, 297 So.2d 15 (Fla.1974). Our analysis impels us to disagree.

The affidavit in question is a nine page document. Without reprinting it in toto, suffice it to say that it amply demonstrates that the defendant, Manning, was continuously involved in large scale drug smuggling and was using his home telephone for this purpose. . Somewhat unusual is the fact that Manning, himself, is the source of most of this information. He had been arrested on a prior drug charge and agreed to cooperate with the police. As a result there began a six month liaison between Manning and the affiant. Manning described himself as a drug broker who never touched contraband but who used his home telephone for this business. He evidenced a detailed, personal knowledge of freighter activity and of foreign purchase operations. On one occasion he showed the police twenty-five to fifty thousand dollars in cash which he described as “dope money.” From February to August of 1978, he allowed the police to listen in on three separate telephone calls, made from his home, and involving large scale drug smuggling. As further corroboration of Manning’s involvement, the police received information from law enforcement agencies in two cities indicating that Manning’s home telephone number appeared on long distance listings of drug suspects in those cities.

August 7, 1978, was the date of the last telephone conversation that Manning permitted the police to overhear. It was with a person named Chris whom Manning had earlier named as his Miami connection. Chris stated that he was in Texas attempting to obtain a load of marijuana and despite the fact that the police had seized one load, he said that the marijuana was guaranteed and that he was going back until he got what he paid for. Shortly after this the police subpoenaed Manning’s telephone bills for May, June, July and August of 1978; they showed high volume long distance traffic. The police applied for and received the wire tap authorization on October 4, 1978.

The prime consideration in evaluating an affidavit in support of a wiretap is whether it shows probable cause to believe that an offense is being committed, or is about to be committed and that the telephone sought to be tapped is being used, or is about to be used, in connection with the offense. 934.09(3)(a) and (d). Timeliness of probable cause is essential and “ . the basic criterion as to the duration of probable cause is the inherent nature of the crime.” Bastida v. Henderson, 487 F.2d 860, 864 (5th Cir. 1973).

. [W]here an affidavit recites a mere isolated violation then it is not unreasonable to believe that probable cause quickly dwindles with the passage of time. On the other hand, if an affidavit recites activity indicating protracted or continuous conduct, time is of less significance. Id. at 864.

We discern this to be the thrust of the Supreme Court’s holding in Rodriguez, supra. The court was careful to characterize the thirty day measure as a “rule of thumb” and further noted that:

. “staleness” cannot be solved by a simple application of numbers of days without consideration of the overall particular circumstances presented by the case. Id. at 18.

Turning again to the case at bar we have a detailed account, from an impeccable source, of one individual’s participation in an ongoing criminal enterprise. Independent verification proved that Manning was not making inflated claims of self-importance. He was precisely what he claimed to be: a broker in a well organized, far-reaching drug syndicate. By his own admission, his home telephone was the tool of his trade. The August 7th conversation* with Chris indicated that the cycle was about to repeat itself; the load was guaranteed; Manning’s Miami source ■ was about to be replenished. The May, June, July and August phone bills corroborated Manning’s admissions and showed that the pace remained constant.

Rodriguez, supra, teaches that an affidavit must be read in its entirety, not in isolated bits and pieces. Our reading of the complete affidavit convinces us that the information contained in the wiretap application is sufficiently detailed and corroborated to constitute probable cause. Furthermore, the showing of a continuous and protracted criminal enterprise negates a finding of staleness. We note that our sister court was presented with a similar question in State v. Brainard, 376 So.2d 864 (Fla. 2d DCA 1979), and reached the same conclusion. See also Cuba v. State, 362 So.2d 29 (Fla. 3d DCA 1978).

We reverse the order of the trial court and remand the case for further proceedings consistent with this opinion.

MOORE, J., concurs.

BERANEK, J., dissents with opinion.

BERANEK, Judge,

dissenting:

I respectfully dissent. The views expressed in the majority opinion were simply not adequately presented to the trial court.

The defendant attacked the wiretap authorization on the grounds of staleness under Rodriguez v. State, 297 So.2d 15 (Fla.1974). Rodriquez quoted Hamelman v. State, 113 So.2d 394 (Fla. 1st DCA 1959), as follows:

“Barring extraordinary circumstances which may be shown to exist in any given case, the pattern has been rather clearly established in courts of this country that if the observation of the alleged offense is not further remote than 30 days from the making of the affidavit and issuance of the warrant, a finding that there exists probable cause will not be disturbed. The contrary appears where the elapsed time is more than 30 days from the date of the observation to the date on which the affidavit is executed and the warrant issued.”

The trial court recognized that Rodriguez was not an ironclad rule but merely a guide or rule of thumb. I have closely reviewed the argument on the motion to suppress at which no testimony was presented. Defendant argued that the information on which the wiretap authorization was given was 59 days old and thus stale under the rationale of Rodriguez absent a demonstration of some special circumstances. The State’s argument accepted the 59 days as a correct characterization of the facts. The court specifically inquired of the State as to why the information was not stale under Rodriguez. No adequate reply was made and the motion to suppress was later granted. I conclude there has been no demonstration of reversible error and would affirm. I prefer the result reached by the majority but I do not believe these matters were ever sufficiently presented to the trial court. If the trial court erred, it was invited by the argument of the State below.

      . The trial court actually gave the State the opportunity to file further written argument. This was done but the response was once again, in my opinion, inadequate. During the hearing the State also suggested that counsel wished to present testimony. No such testimony was ever offered.


author: MILLS, Chief Judge.

text:
    ELLIS NATIONAL BANK OF TALLAHASSEE, a National Banking Corporation, Appellant, v. Perry L. DAVIS and Burma L. Davis, his wife, Appellees.
    No. OO-152.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1980.
    Julius F. Parker, Jr. of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for appellant.
    Thomas C. Dearing of Franson, Brant, Dearing & Moore, Jacksonville, for appel-lees.
   MILLS, Chief Judge.

In 1973 Ellis National Bank of Tallahassee brought suit on a promissory note against Perry L. and Burma L. Davis. The Davises asserted an affirmative defense of usury and prevailed in the trial court. This Court affirmed the finding as to the existence of usury, but increased the penalty in Ellis National Bank of Tallahassee v. Davis, 359 So.2d 466 (Fla. 1st DCA 1978). After certiorari was denied by the Florida Supreme Court at 365 So.2d 711 and by the United States Supreme Court, the Bank returned to the trial court and filed a motion for relief from judgment pursuant to Rule 1.540, Fla.R.Civ.P., urging that the underlying substantive law had been drastically changed by the Florida Supreme Court’s decision in Cesary v. Second National Bank of North Miami, 369 So.2d 917 (Fla.1979), that the change should now be applied to its case, and that the interests of justice would be defeated by enforcing the judgment. The trial court denied the motion.

We affirm and in so doing we adopt the ruling of the trial court:

“The Plaintiff’s ‘Motion For Relief From Judgment’ be and is hereby denied. The issue that Plaintiff seeks to raise would constitute an affirmative defense. Had it been raised as an affirmative defense, it would have had to be resolved in trial. Plaintiff, however, cannot now raise this after final hearing and after final judgment has been entered, as an affirmative defense that is not pleaded is waived. Further, Rule 1.540(b) Florida Rules of Civil Procedure does not generally allow parties to assert changes in the law. While an exception may exist when an ongoing injunction is being considered, there is no exception to this general principle under the circumstances of the instant proceeding.”

AFFIRMED.

McCORD and BOOTH, JJ., concur.


text:
    B. A. D., a child, and T. K. C., a child, Appellants, v. STATE of Florida, Appellee.
    Nos. PP-214, PP-215.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1980.
    Michael J. Minerva, Public Defender and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellants.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The restitution order attending this probation for the two minor appellants is not erroneous for requiring each to repay $172.00, one-third of the aggregate thefts by appellants and another using the same credit card. Assuming that, an evidentiary hearing is not required on the amount of each child’s separate charges on the card. The words “or such other amount deemed due by the probation counselor” are stricken from the order, which is otherwise

AFFIRMED.

ROBERT P. SMITH, Jr., LARRY G. SMITH and WENTWORTH, JJ., concur.