author: ALDERMAN, Justice.

text:
    Dennis Wayne SMITH, Appellant, v. STATE of Florida, Appellee.
    Nos. 60660, 60661.
    Supreme Court of Florida.
    June 25, 1981.

      David Paul Montgomery of Staab & Montgomery, Bradenton, and B. J. Owens, Sarasota, for appellant.
    Jim Smith, Atty. Gen., and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appel-lee.
   ALDERMAN, Justice.

Dennis Wayne Smith appeals the trial court’s denial of his motion to vacate judgment and sentence. Included in Smith's motion were allegations that he received ineffective assistance of counsel upon direct appeal and that he was denied due process when this Court considered a psychological report not disclosed to him. We treat these allegations as a petition for writ of habeas corpus. He also seeks leave to apply for a writ of error coram nobis on the basis of alleged newly discovered evidence. With the exception of an alleged violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), we affirm the trial court’s denial of post-conviction relief, we deny habeas corpus, and we deny leave to apply for a writ of error coram nobis. We remand to the trial court for it to consider the alleged Brady violation.

Smith’s conviction of first-degree murder and his sentence of death were affirmed by this Court, Smith v. State, 365 So.2d 704 (Fla.1978), and the Supreme Court of the United States denied his petition for writ of certiorari. Smith v. Florida, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979). On May 5, 1981, the Florida Cabinet denied his request for clemency, and he was scheduled to be executed on June 3,1981. On May 21, 1981, Smith filed a motion to vacate, set aside, or correct his judgment and sentence.

As a basis for relief, he alleged that there was newly discovered evidence in the form of a recantation after trial by Wesley Johnson, the chief prosecution witness, and in the form of an after-trial discovery by defense of an alleged Brady violation. He also alleged that he was denied a fair trial because the trial court allowed the State to submit evidence of the subsequent murder of James Wagner and to use coerced and unreliable testimony, because the prosecutor commented on Smith’s post-arrest silence, because the trial court allowed Johnson’s wife and Dr. Niswonger to testify over defense objection, because the trial court used an informal “Allen ” charge, because the imposition of the death sentence was the result of unbridled prosecutorial discretion, and because there was a Wither-spoon error in the selection of the jury. He further contended that he was denied a fair sentencing hearing because the State prejudiced him by offering hearsay evidence of his bad character, because he was denied his right to confront witnesses, because the State was permitted to introduce evidence which was not relevant to any statutorily enumerated aggravating circumstances, and because the trial court restricted mitigating circumstances which the jury could consider. He additionally contended that he was denied due process by the Florida Supreme Court’s consideration of a psychological report not disclosed to him and that he was not provided effective assistance of counsel at trial or on appeal.

The trial court concluded that the majority of Smith’s claims were not appropriate to a Florida Criminal Procedure Rule 3.850 proceeding. Although it found that Smith’s contentions relating to a Brady violation by the State were inappropriate to a proceeding under rule 3.850, it did consider and find to be without merit Smith’s claim of newly discovered evidence in the form of Johnson’s recantations after trial. It further held that Smith’s claim of ineffective assistance of counsel and his claim of due process violation by this Court’s alleged consideration of a psychological report were unsupported by any competent allegation of evidence and therefore failed to state a cause of action upon which relief could be granted. Finding insufficient basis upon which relief could be granted, the trial court denied this motion without an evidentiary hearing and denied Smith’s motion for stay of execution.

After reviewing the motion, record, and briefs, and after oral argument, on May 28, 1981, we granted Smith’s application for stay of execution pending disposition of this appeal.

In addition to his appeal from the denial of the rule 3.850 motion, Smith, recognizing that several issues raised below were inappropriate to a rule 3.850 proceeding, has filed a petition for leave to apply for writ of error coram nobis and has requested that we consider his claim of ineffective assistance of appellate counsel as a petition for writ of habeas corpus.

Initially, we hold that with the exception of the alleged Brady violation and the challenge of ineffective assistance of trial counsel, Smith’s claims are inappropriate to a proceeding under rule 3.850. The remaining allegations, except his claims of ineffective assistance of appellate counsel and alleged improper consideration by us of a psychological report, were matters which were or could have been raised and disposed of on direct appeal and are not proper subject matters for a post-conviction motion. Hargrave v. State, 396 So.2d 1127 (Fla. 1981); Witt v. State, 387 So.2d 922 (Fla.), cert. denied, - U.S. -, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980). The trial court, therefore, properly refused to consider these allegations.

Ineffective assistance of trial counsel is a proper subject to be considered in a post-conviction 3.850 motion. In this case, however, applying the standards which we adopted in Knight v. State, 394 So.2d 997 (Fla.1981), we hold that the trial court properly denied Smith’s claim of ineffective assistance of trial counsel.

The issues of ineffective assistance of counsel on direct appeal and the purported consideration by this Court of a psychological report were matters not properly before the trial court and are matters which we will treat as a petition for writ of habeas corpus. The newly discovered evidence claims presented to the trial court have two separate and distinct aspects. One is a purported Brady violation by the State in not furnishing favorable evidence to Smith after a general request for such information had been filed, information Smith allegedly did not become aware of until after trial. The other purported newly discovered evidence consists of recantations made by the chief prosecution witness, Wesley Johnson, subsequent to trial. The former is a proper matter for a post-conviction motion, while the latter may only be considered by means of obtaining leave of this Court to file a petition for writ of error coram nobis. The trial court was, therefore, without jurisdiction to consider the latter claim since leave of this Court had not yet been sought by Smith, but it was with jurisdiction and should have considered the claim of a Brady violation. We will consider these claims of ineffective assistance of appellate counsel, alleged consideration of a psychological report, and the two aspects of newly discovered evidence under the headings of the appropriate remedy under which relief should be sought.

Habeas Corpus

The claim of relief predicated on the assertion of ineffective assistance of appellate counsel can only be granted by habeas corpus in the appellate court. Knight v. State. We have considered Smith’s assertions in light of the standards announced in Knight and find no substantial deficiency in Smith’s representation on appeal by which he was prejudiced.

In his motion for post-conviction relief, Smith argued that he was denied due process because this Court, in connection with his appeal, allegedly considered material outside the record and not disclosed to him. Since a motion to vacate pursuant to Florida Rule of Criminal Procedure 3.850 must be directed to the judgment and sentence of the trial court, action of the Supreme Court of Florida may not be reviewed by this means. Foster v. State, 400 So.2d 1 (Fla.1981). Treating this claim as a petition for writ of habeas corpus, we deny relief. We have previously resolved this issue against Smith in Brown v. Wainwright, 392 So.2d 1327 (Fla.1981).

Petition for Leave to Apply for Writ of Error Coram Nobis

The alleged newly discovered evidence which Smith urged below as a basis for post-conviction relief included a series of after-trial recantations made by Johnson in the form of letters and affidavits. The appropriate first step for a defendant seeking a new trial on the basis of new evidence discovered after his conviction has been affirmed on appeal is a petition to the appellate court for leave to file a petition for error coram nobis. Without leave of the appellate court, the trial court has no jurisdiction to consider the coram nobis petition. Smith, recognizing his error in raising this point in his motion to vacate, has now filed a petition for leave to apply for a writ of error coram nobis. Since the trial court was without jurisdiction to consider this point on the merits, its finding that the unsupported recantation by Johnson was unreliable and did not serve as a sufficient basis upon which to grant relief was premature.

In considering whether to grant Smith’s petition for leave to file a petition for error coram nobis, we must determine the legal effect of the alleged facts upon the previously entered judgment. In Hallman v. State, 371 So.2d 482 (Fla.1979), we set out the specific requisites of a petition for the writ addressed to the appellate court. The alleged facts relied upon must be fully disclosed since the appellate court must be afforded full opportunity to determine whether prima facie grounds are established. Furthermore, the evidence upon which the alleged facts can be proved and the source of the evidence must be asserted. The facts alleged must not have been known by the court, by the party, or by counsel, at the time of trial, and it must be made clear that defendant or his counsel could not have discovered them through the use of due diligence. In determining the sufficiency of the application, we apply a strict test of conclusiveness predicated on the need for judicial finality. To warrant the granting of relief, the petition must allege facts of such a vital nature that, had they been known to the trial court, they conclusively would have prevented entry of the judgment. Hallman v. State, 371 So.2d at 485.

The facts alleged in the present case are that on June 1, 1979, in a letter to Governor Graham, Wesley Johnson, the State’s key witness, stated that Smith did not participate in the murders but rather was at his apartment “sleeping off a drunk.” Attached to this letter was an affidavit of Johnson stating that he had lied and stating that Smith was not with him when he killed Wagner and Arnsdorff. On June 29, 1979, Johnson directed another affidavit to Governor Graham and stated that he had lied on the stand and that he had lied to avoid the death penalty. Rodney Malloy, a prison inmate, wrote a letter dated September 3, 1976, advising that Johnson had told him that Smith was not involved in the murder. At a May 28,1980, hearing on the commutation of Smith’s death sentence, Johnson again recanted his testimony.

Although these particular recantations were not known to the court or to counsel at the time of trial, we cannot say that the facts upon which the petition is based were unknown. The gist of these recantations is that Johnson committed the murders and that Smith was not involved and that Johnson lied to avoid the death penalty. But evidence of Johnson’s confession to the murders and his statements that Smith was not involved and that he implicated Smith to avoid the death penalty were before the court and the jury, albeit in different form than now presented by Smith.

On direct examination by the State, Johnson testified:

Q. Have you had any communication with Smith since you have been in jail?
A. Yeah.
Q. What has been the nature of that communication?
A. Wanting me to cut him free.
Q. What do you mean, “cut him free”?
A. For me to say I killed all the people, that he wasn’t there and whatnot.
Q. Did you do anything or say anything that would help to cut Smith loose?
A. Yeah, I wrote him a confession and sent it to him.
Q. How about anything else?
A. Talked to a few jailers, convinced them that I had done it.

The “confession” referred to in Johnson’s testimony was admitted into evidence as a defense exhibit.

Johnson also made it perfectly clear what his deal with the State was. At one point during cross-examination by defense counsel of Johnson, the following occurred:

Q. What is your deal with the state?
A. 25 to life.
Q. How many crimes did you confess to?
A. Three.
Q. Were there any stipulations pertaining to that?
A. What do you mean, to the sentence?
Q. Yes.
A. That I testify.
Q. Testify to what?
A. To the murders.
Q. Did it have anything to do with the implication of the defendant here, Mr. Smith?
A. Yes.
Q. And that was part of the deal?
A. That I testify to the murders for the state, yeah.
Q. And have you been sentenced yet?
A. No, not that I know of.
Q. Is it your understanding that you will not be sentenced until after you give your testimony?
A. Right.
Q. Therefore your testimony is based upon your not going to the electric chair, is that right?
A. Well, I’m talking, uh, yeah, I suppose so.
Q. You are frightened of going to the electric chair, aren’t you.
A. Scared to death.
Q. So you are in a position now — let me see if I have got this straight — of having given testimony against Mr. Smith with the promise from the state that if you did so you, who admit that you were involved in crimes, will get a sentence of from 25 years to life?
A. It’s not 25 to life. It’s a life sentence, whereas on first degree murder I have to do at least 25 years before I am eligible for parole is the type of life sentence I will be receiving. And if I don’t get off then, between now and then, the next 25 years I plan on making parole.
Q. Was [sic] there additional promises that these sentences would be together instead.of one after the other?
A. Concurrently, yes.
Q. In other words, you would get a concurrent sentence, only one life sentence?
A. Yes sir.
Q. Any other witnesses other than you and Birdman and Smith?
A. Not that I know of, no.
Q. So there is just you now and Smith?
A. Right.
Q. That’s the way it is, isn’t it?
A. Right.
Q. And you got 25 years if you behaved yourself, and we don’t know what Smith has got, is that right?
A. Right.

It further appears that Smith introduced the testimony of two jailers who stated that they overheard Johnson say on several occasions that he was the only one who had committed the killing. During closing argument, defense counsel vigorously challenged Johnson’s credibility and properly directed the jury’s attention to Johnson’s pre-trial confession that it was he, not Smith, who had committed the crimes. Defense counsel also emphasized Johnson’s deal with the State, arguing:

Let’s talk a little bit about the man, Wesley Irvin Johnson....
And let me tell you what he has done. He has entered a nolo contendere plea which means he has made a no contest plea — this is by his own testimony — with the Court for multiple murders and he has not yet, ladies and gentlemen, been sentenced. He has made what is known as a deal, but the deal hasn’t been closed. What’s the consideration for the contract he made? It’s to testify against the defendant here. That’s the way we are running this trial. Without Wesley Irvin Johnson we wouldn’t be here. Without his testimony we wouldn’t be here. There wouldn’t be any trial. There wouldn’t be sufficient evidence to have stayed in this courtroom without his testimony. .. .
[W]e had two men come in and say they heard Wesley Johnson say he had committed all the crimes. ... Do you remember admitting that he wrote that note? Don’t forget that. Don’t forget that. You have a man who was flipping a coin; half the time he is on one side, half the time he is on the other side....
That note is very, very important that you do remember that note. It was admittedly signed by him, admittedly sent to the defendant, and received by him. The state had knowledge of it and we had knowledge of it (Emphasis supplied.)

The facts now offered as newly discovered evidence in an attempt to gain a new trial are cumulative to the evidence introduced at trial. Both court and counsel were aware that, prior to trial, Johnson had confessed and said that Smith was not involved in the commission of Arnsdorff’s murder. Viewing the entire record in light of Smith’s present claim, we cannot say that, had these additional recantations been before the trial court, the judgment would have been precluded. Therefore, the petition for leave to apply for writ of error coram nobis is denied.

Alleged Brady Violations

Prior to trial, Smith filed a general motion for production of all evidence favorable to him. In his motion for post-conviction relief, Smith contended that the State’s failure to disclose certain allegedly favorable evidence to him before trial amounted to a Brady violation in contravention of his right to due process of law. He further alleged that he did not become aware of this purportedly undisclosed evidence until after judgment and sentence had been entered and that this evidence would have been material to his trial. Since this challenge is based on the ground that the judgment was entered in violation of the due process clause of the constitution, since Smith alleges he did not have knowledge of the basis for this challenge prior to final judgment, and since it is within the peculiar province of the trial court to determine whether there was a Brady violation requiring a new trial, Smith’s raising of this point in a motion to vacate judgment was appropriate.

The allegedly favorable evidence, which he contends was not disclosed, consists of police reports containing statements by Johnson when he was initially arrested wherein he made no mention of Smith as a coperpetrator of the murder and where he admitted to having committed the murder and statements by Johnson’s wife containing no references to Smith.

Since the trial court believed that this point was inappropriate to a rule 3.850 proceeding, it did not pass on the merits of the question of whether there was a Brady violation which would require a new trial, and accordingly we remand this singular issue to the trial court to make this determination.

The Supreme Court of the United States, in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), held that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. at 1196-1197 (emphasis supplied).

The test of materiality in a situation where a general request is made for favorable evidence was definitively explained by the Supreme Court in United States v. Agars, 421 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). The Court determined that where a general request for favorable evidence has been made, as in the present case, implicit in the requirement of materiality is the concern that the undisclosed evidence would have affected the outcome of the trial. Upon assertion of a Brady violation after trial, the trial court is required to determine whether a defendant was deprived of his right to due process by the nondisclosure since, unless the omission deprived him of a fair trial, there is no constitutional violation. That an item of undisclosed information possibly may have helped the defense, or possibly may have affected the outcome of the trial, does not establish materiality in the constitutional sense. 427 U.S. at 109, 96 S.Ct. at 2400. The Supreme Court, in deciding the content of the test of materiality, distinguished a case of undisclosed, favorable evidence in the possession of the State from newly discovered evidence to which no one had access before judgment and said:

On the one hand, the fact that such evidence was available to the prosecutor and not submitted to the defense places it in a different category than if it had simply been discovered from a neutral source after trial. For that reason the defendant should not have to satisfy the severe burden of demonstrating that newly discovered evidence probably would have resulted in acquittal. If the standard applied to the usual motion for a new trial based on newly discovered evidence were the same when the evidence was in the State’s possession as when it was found in a neutral source, there would be no special significance to the prosecutor’s obligation to serve the cause of justice. [Footnote omitted.]

427 U.S. at 111, 96 S.Ct. at 2401. On the other hand, although finding that the strict test to be applied where newly discovered evidence is involved does not apply in determining materiality as contemplated by Brady, the Supreme Court also concluded that every nondisclosure could not consistently be treated as error and explained:

It necessarily follows that the judge should not order a new trial every time he is unable to characterize a nondisclosure as harmless under the customary harmless-error standard. Under that standard when error is present in the record, the reviewing judge must set aside the verdict and judgment unless his “conviction is sure that the error did not influence the jury, or had but very slight effect.” Kotteakos v. United States, 328 U.S. 750, 764 [66 S.Ct. 1239, 1248, 90 L.Ed. 1557]. Unless every nondisclosure is regarded as automatic error, the constitutional standard of materiality must impose a higher burden on the defendant.

427 U.S. at 111-12, 96 S.Ct. at 2401. Finding that the proper standard of materiality must reflect an overriding concern with the justice of the finding of guilt, the Court announced the following as the test for materiality:

Such a finding [of guilt] is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt. [Footnote omitted.]

427 U.S. at 112-13, 96 S.Ct. at 2402.

It is incumbent upon the trial court to determine whether a Brady violation sufficient to warrant a new trial occurred in this case. We therefore remand this cause to the trial court to consider this issue, guided by the test of materiality announced by the Supreme Court of the United States in United States v. Agurs.

Conclusion

Accordingly, we affirm the trial court’s denial of post-conviction relief on all grounds alleged with the exception of Smith’s claim of a Brady violation. We reverse the trial court’s ruling that the alleged Brady violation issue was inappropriate to a proceeding under rule 3.850 and remand to the trial court to consider this issue. We deny the petition for leave to apply for writ of error coram nobis, and we deny habeas corpus.

It is so ordered.

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

ADKINS, J., dissents.

      .More specifically, Smith stated the State failed to disclose:
      1. The Daytona Beach Police Report of the confessions of Johnson which contain no references to Smith or a third perpetrator. (Exhibit K). This statement is inconsistent with Johnson’s “post-agreement” assertions that Smith was a third perpetrator and would have served as proper impeachment of Johnson’s testimony at trial.
      2. The tape and transcript of Johnson’s second confession to the Daytona Beach Police Department from which it is now believed defense could have discovered that Johnson’s confession limited implications to Johnson and Wagner. This tape was expressly noted in the police officer’s report and transferred to the possession of the Polk County Sheriffs Office with Johnson. (Exhibit K pp. 4, 8).
      3. The Daytona Beach Police report of the statement of Johnson’s wife, which contains no references to Smith or to a third perpetrator (Exhibit K p. 8). This statement is inconsistent with Patricia Johnson’s testimony at trial that Johnson had named Smith as a third perpetrator prior to Johnson’s arrest, and would have served as proper impeachment of Patricia Johnson’s testimony to that effect at trial.
      4. The report of the Polk County Sheriff’s deputy of contacts by the office with Johnson’s wife and mother making efforts to enlist their aid in coercing Johnson to implicate Smith in exchange for guarantees of Johnson avoiding a death sentence. (See Exhibit E which would have disclosed Deputy Keeney as a rebuttal witness in response to Patricia Johnson’s testimony at trial.)
      5. The tape and transcript of the statement of Patricia Johnson which it is believed continues to fail to implicate Smith and would have served to impeach Patricia Johnson’s testimony at trial. This tape is expressly noted in the deputy’s report. (Exhibit E p. 5.)

      . The stay of execution issued by this Court is dissolved.


source: Caselaw Access Project

author: ADKINS, Justice. ENGLAND, Justice,

license: Public Domain

text:
    HOMEMAKERS, INC., Petitioner, v. Linda GONZALES, Respondent. MEDICAL PERSONNEL POOL OF DUVAL COUNTY, INC., Petitioner, v. Linda GONZALES, Respondent.
    Nos. 55962, 55976.
    Supreme Court of Florida.
    July 2, 1981.
    Kathryn R. Collins of Howell, Howell, Liles, Braddock & Milton, Jacksonville, for Homemakers, Inc.
    John I. Todd, Jr., Jacksonville, for Medical Personnel Pool of Duval County, Inc.
    James L. Harrison of Harrison & Snyder, Jacksonville, for respondent.
   ADKINS, Justice.

We have for review a decision of the First District Court of Appeal reversing a trial court’s order of summary judgment. Gonzales v. Jacksonville General Hospital, Inc., et al., 365 So.2d 800 (Fla. 1st DCA 1978). The First District Court of Appeal’s decision directly conflicts with a decision of the Fourth District on the same point of law, i. e., the effect of subsequent amendments upon the application of section 95.-11(6), Florida Statutes (1973). Brooks v. Cerrato, 355 So.2d 119 (Fla. 4th DCA 1978). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. (1972).

On the evening of April 2, 1973, a nurse at Jacksonville General Hospital (hereinafter JGH) gave Linda Gonzales an injection in the buttocks. Mrs. Gonzales immediately experienced pain, and reported the incident to a supervisor. Over two years later, on November 12, 1975, Mrs. Gonzales filed a mediation claim against JGH alleging that she was permanently disfigured as a result of the careless and negligent administration of the injection. JGH then named Homemakers, Inc., and Medical Personnel Pool (hereinafter MPP) as third party defendants in the mediation proceeding, claiming that one of these services had supplied the nurse who gave the injection. Later, the claim for medical malpractice was dismissed by stipulation of the parties.

On July 9, 1976, Gonzales initiated the present action in circuit court. JGH was the only named defendant, but again Homemakers and MPP were joined as third party defendants. In the second amended complaint Homemakers and MPP were added as defendants. All three defendants raised the statute of limitations as a defense and final summary judgment was entered in favor of each of them. Mrs. Gonzales appealed from the orders of summary judgment entered in favor of Homemakers and MPP.

The First District Court of Appeal reversed the trial court and held that the action was not barred by the statute of limitations. Appellees, Homemakers and MPP, thereafter sought certiorari review in this Court.

Whether or not Mrs. Gonzales’ claim is barred by the statute of limitations depends on our construction and application of the statute, as it stood when her cause of action accrued, and the subsequent amendments thereto. § 95.11(6), Fla.Stat. (1973); §§ 95.022, 95.11(4)(a), Fla.Stat. (Supp.1974); § 95.11(4)(b), Fla.Stat. (1975). The cause of action here accrued on April 2, 1973. On that date, when Mrs. Gonzales experienced pain from the injection, she discovered or should have discovered the injury.

The statute of limitations in force on April 2, 1973, was section 95.11(6), Florida Statutes (1973), which provided in part:

Limitations upon actions other than for the recovery of real property. — Actions other than those for the recovery of real property can only be commenced as follows:
(6) WITHIN TWO YEARS.— . . . [A]n action to recover damages for injuries to the person arising from any medical . .. treatment ..., the cause of action in such cases not to be deemed to have accrued until the plaintiff discovers, or through the use of reasonable care should have discovered, the injury.

Clearly, had section 95.11(6) remained unamended until April 3, 1975, Mrs. Gonzales’ cause of action would be barred by the statute, since no action of any kind was begun until November 12, 1975. However, section 95.11(6) was amended by section 95.-ll(4)(a), Florida Statutes (Supp.1974), effective January 1, 1975. The amended statute provided:

WITHIN TWO YEARS.—
An action for professional malpractice, whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence. However, the limitation of actions herein for professional malpractice shall be limited to persons in privity with the professional.

§ 95.11(4)(a), Fla.Stat. (Supp.1974). Also pertinent is the “savings clause” which accompanied the 1974 revision:

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

§ 95.022, Fla.Stat. (Supp.1974). Finally, the statute was amended a second time in early 1975, with the legislature providing separately for medical malpractice and other forms of professional malpractice:

WITHIN TWO YEARS.—
An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued. ...
The limitation of actions within this subsection shall be limited to the healthcare provider and persons in privity with the provider of health care.

§ 95.11(4Xb), Fla.Stat. (1975) (effective date May 20, 1975).

In finding that Mrs. Gonzales’ action was not barred by the statute of limitations, the First District Court of Appeal held that upon January 1, 1975, the amended section 95.11(4)(a) became applicable to then-existing causes of action, superseding section 95.11(6). The Court then found section 95.-ll(4)(a), applying to actions for professional malpractice, inapplicable due to a perceived lack of the required privity between appel-lee Gonzales and appellants Homemakers and MPP. Instead the Court classified the action as one founded on negligence or alternatively as one not specifically provided for in the statute. Either classification carries a four-year period of limitation. §§ 95.11(3)(a), (p), Fla.Stat. (Supp.1974). The circuit court action filed on July 9, 1975, clearly is not barred under a four-year statute.

The Fourth District had encountered a practically identical scenario eleven months earlier in Brooks v. Cerrato, supra. In that case, the plaintiff lost the use of an arm after surgery to remove a tumor from her neck. The action accrued February 8, 1973, and suit was filed on June 27, 1975. The Court found the action to be barred by the two-year statute of limitations. Acknowledging the intervening amendment to section 95.11, the Court stated:

[I]n the absence of any express, clear or manifest legislative intent to apply Section 95.11(4) [Florida Statutes (Supp. 1974)] retroactively, we conclude that it does not apply to causes of action occurring prior to its effective date. We hold that the applicable statute of limitations in this case is Section 95.11(6), Florida Statutes (1973).

355 So.2d at 120.

It is our view that the failure of the court below to follow the reasoning of Brooks with regard to retroactivity leads to an erroneous result in the instant case. The rule was correctly stated in Brooks that a statute of limitations will be prospectively applied unless the legislative intent to provide retroactive effect is express, clear and manifest. See also Foley v. Morris, 339 So.2d 215 (Fla.1976) (disallowing retroactive application of § 95.11(6), Fla.Stat. (1973)). Reviewing chapter 95 in its entirety we find no express, clear or manifest intent that section 95.11(4), Florida Statutes (Supp.1974 & 1975) apply retroactively.

The “savings clause” of section 95.022, though considered, offers no evidence of such intent. This clause provides a grace period of one year for causes of action which would be prematurely barred by retroactive application of the new statute of limitations. We determine, as did the Fourth District in Brooks, that section 95.-022 was specifically directed only to those sections of chapter 95 whose time periods were shortened by the amended statute, and has no application where time periods remained the same or were lengthened. In fact, the obvious purpose of enacting a savings clause is to satisfy the constitutional mandate that to shorten a period of limitation, the legislature must by statute allow a reasonable time to file actions already accrued. Foley v. Morris, 339 So.2d at 216. Also, decisions of this Court have held that a savings clause, by its nature, “imparts retroactivity upon the statutes within its ambit;” /. e., those which have been shortened by statutory amendment. Carpenter v. Florida Central Credit Union, 369 So.2d 935, 937 (Fla.1979). It follows that section 95.022, Florida Statutes (Supp.1974), provides no evidence that the legislature clearly intended retroactive effect for those sections of chapter 95 which either lengthened or retained periods of limitations previously defined.

The impact of our holding in the instant case is that the statute of limitations applicable to Mrs. Gonzales’ claim for all purposes is section 95.11(6), Florida Statutes (1973), which provides a two-year period of limitation. Neither of the subsequent amendments to chapter 95 disrupted the application of section 95.11(6) since there is no evidence of legislative intent of retroac-tivity. In the final analysis, Mrs. Gonzales’ claim accrued on April 3,1973, but no action was taken thereon within two years, so her action is barred by section 95.11(6).

Having so decided, there is no need to determine whether privity exists between petitioners and respondents as required by section 95.11(4Xa), Florida Statutes (Supp. 1974) and section 95.11(4)(b), Florida Statutes (1975). We expressly withhold judgment on that issue.

Accordingly, the judgment of the First District Court of Appeal is hereby quashed, and the cause is remanded with instructions that the trial court’s order of final summary judgment finding the cause of action to be barred by the statute of limitations be reinstated.

It is so ordered.

BOYD, OVERTON, ALDERMAN and McDONALD, JJ., concur.

ENGLAND, J. dissents with an opinion in which SUNDBERG, C. J., concurs.

ENGLAND, Justice,

dissenting.

The Court today adopts the minority view in the United States with respect to the applicability to an accrued but not yet barred cause of action of an extended, as contrasted with a shortened, statute of limitations. See Morton v. Tullgren, 263 Ark. 69, 563 S.W.2d 422 (1978); Annot., 79 A.L. R.2d 1080 (1961). The prevailing view in this country, affording non-barred litigants the benefit of extended statutes of limitations, has for years been accepted and applied in Florida. See Garris v. Weller Construction Co., 132 So.2d 553 (Fla.1960); Corbett v. General Engineering & Machinery Co., 160 Fla. 879, 37 So.2d 161 (1948); Mazda Motors of America, Inc. v. S. C. Henderson & Sons, Inc., 364 So.2d 107 (1st DCA 1978), cert. denied, 378 So.2d 348 (Fla.1979); Neff v. General Development Corp., 354 So.2d 1275 (Fla. 2d DCA 1978); Patterson v. Sodders, 167 So.2d 789 (Fla. 2d DCA 1964); Martz v. Riskamm, 144 So.2d 83 (Fla. 1st DCA 1962). In fact, nothing to the contrary appeared in Florida’s jurisprudence until the Fourth District Court of Appeal, out of the blue, applied the retroactivity concerns of shortened statute eases to an extended statute case. See Brooks v. Cerrato, 355 So.2d 119 (Fla. 4th DCA), cert. denied, 361 So.2d 831 (Fla.1978).

I prefer to adhere to our precedents and the rationale of the majority view. For that reason, I dissent.

SUNDBERG, C. J., concurs.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Ronald S. GUNTHER, Respondent.
    Nos. 59078, 59592.
    Supreme Court of Florida.
    July 2, 1981.
    Stanley A. Spring, Staff Counsel, Tallahassee, David G. McGunegle, Branch Staff Counsel and John B. Root, Jr., Bar Counsel, Orlando, and C. Brent McCaghren, Chairman, Ninth Judicial Circuit Grievance Committee “B”, Winter Park, for complainant.
    No appearance for respondent.
   PER CURIAM.

In these combined cases, The Florida Bar has charged respondent Ronald S. Gunther with a total of twenty-six counts of neglecting legal matters entrusted to him. In each of these counts, the referee found that respondent agreed to represent and collected legal fees from various clients on various legal matters, but that respondent thereafter failed to take any action on the clients’ behalf. It is clear from the report that the clients repeatedly attempted to contact respondent after their initial consultation and payment of fee but to no avail. No money was ever refunded.

Collectively, the referee recommended that respondent be found guilty of violating Florida Bar Code of Professional Responsibility Disciplinary Rules 1-102(A)(4), -102(A)(6), 5 — 105(A), -105(B), 6-101(A)(3), 7 — 101(A)(2), -101(A)(3), and 9-102(B)(4). The referee further recommended that respondent be disbarred for his actions.

Respondent made no appearance before the referee and has not sought review in this Court. Accordingly, the referee’s findings and recommendations are approved. Respondent, Ronald S. Gunther, is hereby disbarred, effective immediately. Execution shall issue against respondent for the cost of these proceedings in the amount of $1,005.36.

It is so ordered.

ADKINS, Acting C. J., and OVERTON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Larry Gene ULLENSVANG, Respondent.
    Nos. 59586, 59778.
    Supreme Court of Florida.
    July 2, 1981.
    John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel, James P. Hollaway, Deputy Staff Counsel and John A. Boggs, Asst. Staff Counsel, Tallahassee, David G. McGunegle, Branch Staff Counsel and John B. Root, Jr., Bar Counsel, Orlando, and James W. Hart, Chairman of the Ninth Judicial Circuit Grievance Committee “C”, Orlando, for complainant.
    Chandler R. Muller of Muller & Kirkcon-nell, Winter Park, for respondent.
   PER CURIAM.

We have consolidated two disciplinary matters against respondent brought by The Florida Bar. Case number 59,778 is before the Court on the report of a referee and the petitions of both parties for review thereof. In case number 59,586, we have before us the report of the referee and the respondent’s petition for review.

In case number 59,778 the referee held a hearing on July 2, 1980. In that case the referee made the following findings:

II. Charges Against Respondent. Respondent is charged with violation of Rule 11.02(4) of Article XI of the Integration Rule of the Florida Bar (Trust Funds) and Disciplinary Rule 6-101(A)(3) (Neglect of a Legal Matter).
III. Findings of Fact. The uncontro-verted evidence, admitted by Respondent, establishes that:
(a) Respondent accepted escrow funds from the buyer of a condominium apartment on or about June 1, 1977 in the amount of $1,100 (Bar Exhibit 12).
(b) Despite repeated demands from the seller, Respondent failed to remit the proceeds of the sale until more than four months later.
(c) On September 9, 1977, there were insufficient funds in Respondent’s trust account to cover the check issued that date to the seller.
(d) As of January 31, 1980, there were 24 overdrawn client trust accounts (Bar Exhibit 13).
(e) Respondent neglected to record the deed to the property until November 22, 1977, and did not forward the property owner’s policy of title insurance until September of 1978.
IV. Recommendation as to Guilt. Based upon the foregoing, the Referee recommends that Respondent be found guilty as charged.

The Bar asked the referee to recommend a three month suspension. The referee found that alcoholism and emotional strain contributed substantially to respondent’s problems. In view of respondent’s lack of a prior disciplinary record, the referee recommended a public reprimand and two years of probation with conditions. The Bar petitions for review of the recommended discipline, requesting suspension for one year, restitution, and assessment of costs.

In case number 59,586 the referee made the following findings and recommendations:

II. Findings of Fact: Pursuant to the commission issued by the Chief Justice of The Supreme Court of Florida on August 25, 1980, in the above entitled matters, the undersigned held a preliminary conference on October 28,1980, and further held a final hearing on November 3, 1980.

Based upon the Amended Complaint of The Florida Bar, the Respondent’s Answer to the Amended Complaint, the Respondent’s Answer to The Florida Bar’s Request For Admissions, the Oral Argument and documentary evidence received at trial and the reasonable inferences to be drawn therefrom, the referee makes the following findings of fact:

(a) That the Respondent, Larry G. Ullen-svang, is, and at all times mentioned in these findings, was, a member of The Florida Bar, subject to the jurisdiction of The Supreme Court of Florida.

(b) On or about October 10, 1978, Mr. Vernon O. Parrish retained respondent to examine a contract for purchase of certain real estate and to have the title to that real estate properly transferred to Mr. Parrish. Mr. Parrish paid respondent a retainer fee of $100 at this time.

Although respondent did write three letters to the Seller, the transfer of title was never accomplished.

Respondent then discontinued his private practice of law without notifying his client, Vernon O. Parrish. Neither the contract which respondent was retained to examine nor the fee was returned to Mr. Parrish at that time.

(c) On or about March 1, 1976, respondent acted as attorney for both parties in a real estate closing. Both parties were aware of his dual representation and consented to it. The subject of the real state transaction was the sale of an apartment complex to Charles K. Knudson and Carole J. Knudson by Robert H. Wheeler and Betty D. Wheeler.

During the course of the closing procedure, the Buyers (the Knudsons), gave to respondent in trust, $472.50 to be used by the respondent to purchase documentary stamps for the promissory notes. In order to effectuate the transaction, the Knudsons gave respondent their Check No. 1, dated March 1, 1976, drawn on the Barnett Bank of Winter Park in the amount of $522.50 which included the sum of $50 as his fee, payable to his trust account.

The check given by Mrs. Knudson to the respondent was deposited by the respondent into his trust account, Account No. 247-441-951.

The parties agreed that Mr. and Mrs. Knudson, as Buyers, would not get the deed to the apartment complex until the down payment and the notes due, one each year for three years, were paid. It was further agreed that respondent would hold the deed, mortgage, mortgage note, settlement costs and taxes, and all other papers pertaining to the real property transaction, in trust, in his custody until the three promissory notes which constitute a part of the down payment were fully paid.

The payment on the last note was made by the Knudsons to the Wheelers on or about March 2, 1980.

Mrs. Knudson thereupon informed respondent that necessary payments had been made to the Wheelers as agreed and that the documents should now be released for recording.

Respondent then required proof by the Knudsons that they had given him money to be placed in his trust account. The Knudsons furnished him with a copy of cancelled Check No. 1 which indicated it had been endorsed by respondent and deposited into his trust account.

Respondent then released the deed, mortgage and note, but admitted to the Knud-sons that the trust funds in question were no longer in his trust account.

The Knudsons thereupon notified The Florida Bar of the facts recited herein.

(d) On or about March 1, 1976, respondent acted as attorney for both parties in a real estate closing. Both parties were aware of his dual representation and consented to it. The subject of the real estate transaction was the sale of an apartment complex to Charles K. Knudson and Carole J. Knudson, by Robert H. Wheeler and Betty D. Wheeler.

During the course of the closing procedure, the Sellers (the Wheelers), gave to respondent in trust, the sum of $2,316.90 to be used by the respondent to purchase documentary stamps for the deed, for the surtax on the deed and to pay the intangible tax on the mortgage. In order to effectuate the transaction, the Wheelers gave respondent their Check No. 540, dated March 1, 1976, drawn on the Barnett Bank of Winter Park in the amount of $2,366.90, which included the sum of $50 as his fee, payable to his trust account.

The check given by Mrs. Wheeler to the respondent was deposited by the respondent into his trust account, Account No. 247-441-951.

The parties agreed that Mr. and Mrs. Knudson, as Buyers, would not get the deed to the apartment complex until the down payment and the notes due, one each year for three years, were paid. It was further agreed that respondent would hold the deed, mortgage, mortgage note, settlement costs and taxes, and all other papers pertaining to the real property transaction in trust, in his custody until the three promissory notes which constitute a part of the down payment were fully paid.

The payment on the last note was made by the Knudsons to the Wheelers on or about March 2, 1980.

Mrs. Knudson thereupon informed respondent that necessary payments had been made to the Wheelers as agreed and that the documents should now be released for recording.

Respondent then required proof by the Wheelers that they had given him money to be placed in his trust account. The Wheelers furnished him with a copy of cancelled Check No. 540, which indicated it had been endorsed by respondent and deposited into his trust account.

Respondent then released the deed, mortgage and note, but admitted to the Wheelers that the trust funds in question were no longer in his trust account.

The Wheelers thereupon notified The Florida Bar of the facts recited herein.

(e)On July 1, 1979, pursuant to the provisions of Article VIII of the Integration Rule of The Florida Bar, the annual dues of the respondent became due.

In October, 1979, respondent forwarded a check to The Florida Bar, dated October 9, 1979, in the amount of $150 in payment of his 1980 Bar dues and a delinquency charge for late payment. The check was deposited in the bank on October 31, 1979, and was returned to The Florida Bar on November 1, 1979, with a notation of “Insufficient Funds.” The check was again deposited in the bank by The Florida Bar and was again returned on November 7, 1979, with the notation “Insufficient Funds” on it.

Or or about December 18, 1979, a letter signed by Virginia L. Hardison, Director, Membership Records, The Florida Bar, was mailed to the respondent notifying him of the problem in cashing his check. The letter requested a money order or cashier’s check in the amount of $150 immediately and warned that failure to pay immediately would result in respondent’s becoming a delinquent member of The Florida Bar without the privilege of practicing law in Florida.

The letter went unanswered and numerous attempts were made to contact respondent by telephone. On several occasions telephone calls were made and no answer at the called number. On one occasion a message was left on the answering machine at respondent’s number. Finally, on or about February 6,1980, he did return a call to The Florida Bar and stated that he would call on February 8,1980, to advise what disposition he could make.

He failed to call The Florida Bar on February 8, 1980, as promised.

On February 12, 1980, respondent called The Florida Bar and left a message that he would be sending a cashier’s check on Friday, February 15, 1980, to cover his dues and penalty. He further promised to call Mrs. Hardison on the day the cashier’s check was sent. No such check has been received by The Florida Bar.

On March 3, 1980, Ms. Hardison again wrote respondent notifying him that she was still holding his check which had been returned for insufficient funds.

This letter informed respondent that he had been reclassified as a delinquent member of The Florida Bar, suspended for nonpayment of dues, and advised him that until the check was made good he would be ineligible to practice law in Florida.

The check has not been made good nor have the respondent’s annual dues for 1980 been paid in any other manner.

(f) The respondent owes Charles K. Knudson and Carole J. Knudson, his wife, the sum of $472.50.

(g) The respondent owes Robert H. Wheeler and Betty Wheeler, his wife, the sum of $2,316.90.

(h) The respondent owes The Florida Bar the sum of $150 for the 1980 Bar dues and delinquency charge for late payment represented by his bad check.

(i) Count II of the Amended Complaint was dismissed with prejudice during this trial because although The Florida Bar has subpoenaed the witness to appear, counsel for The Florida Bar made a motion for a dismissal which the court granted with prejudice. This rendered moot the respondent’s Motion To Dismiss Count II on the ground of Res Adjudicata.

III. Recommendations: It is recommended that the respondent should be found guilty of misconduct justifying disciplinary measure.

The evidence relating to Count I clearly and unequivocally reveals that the respondent violated Disciplinary Rules 6-101(A)(3) and 7-101(A)(2) of the Code of Professional Responsibility.

The evidence relating to Count III reveals respondent has violated Disciplinary Rule 9-102(B)(3) and 9-102(b)(4) and Rule 11.02(4) of the Integration Rule of The Florida Bar.

The evidence relating to Count IV reveals that respondent has violated Disciplinary Rules 9-102(b)(3) and 9-102(B)(4) and Rule 11.02(4) of The Integration Rule of The Florida Bar.

The evidence relating to Count V reveals respondent has violated Disciplinary Rules 1-102(A)(4) and 1-102(A)(6).

IV. Recommendation as to Disciplinary measures to be applied: It is recommended that Larry G. Ullensvang be suspended from the practice of law for a period of three years with proof of rehabilitation as well as proof of full restitution to all clients revealed in the present record as well as other clients similarly situated as revealed by the recent audit of his books by The Florida Bar and other proceedings, as well as the costs incurred in these proceedings.

Normally, the referee would recommend disbarment. However, the record reveals that the downfall of the respondent was due to his not enjoying the practice of law plus his becoming addicted to alcohol. The combination of these two factors led to his gross neglect of his clients’ affairs, the conversion of trust funds, and a divorce. The respondent has joined Alcoholics Anonymous and is trying to straighten himself out and to make restitution. He has hit bottom. The referee believes he merits a chance to redeem himself.

The Bar has not sought review of the recommended discipline in case number 59,-586. Taking into consideration the findings and recommendations in both disciplinary proceedings, we conclude that the appropriate discipline is a three-year suspension. We hereby suspend respondent from the practice of law for a period of three years, effective immediately, and until he proves rehabilitation. We also assess the costs of these proceedings against respondent in the amount of $2,362.29.

It is so ordered.

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


author: PER CURIAM. ANSTEAD, Judge, ANSTEAD, Judge,

text:
    Donald Lee HOCHSTETLER, Appellant, v. STATE of Florida, Appellee.
    No. 79-1381.
    District Court of Appeal of Florida, Fourth District.
    March 4, 1981.
    Rehearing Denied July 22, 1981.
    Richard L. Jorandby, Public Defender, and James K. Green of Brown & Green, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant appeals his conviction of possession of marijuana upon entry of a nolo contendere plea expressly reserving the right to appeal the denial of his motion to suppress. It is asserted that the warrant-less search of defendant’s vehicle was not authorized under the Florida stop and frisk law. Section 901.151, Florida Statutes (1979). The initial investigatory stop and frisk by the police of the defendant is not contested in this appeal. At the hearing on motion to suppress the defense agreed that defendant had been legally detained and that there was no objection whatsoever to the initial detention. After this stop and frisk occurred, the police made a reasonable self-protective search in the front seat area of defendant’s vehicle because the defendant made a sudden move toward this area. This search was of a limited nature and in response to the defendant’s actions. A bag which police felt might contain a weapon was found on the floor of the front seat. Upon picking up the bag the odor of marijuana was noticed and the bag seized.

We conclude that the denial of the motion to suppress was in accordance with Brown v. State, 358 So.2d 596 (Fla. 2d DCA 1978) and Stevens v. State, 354 So.2d 110 (Fla. 3d DCA 1978). The Brown decision authorizes limited protective searches as was the situation here. In Stevens the defendant was stopped while getting into his car in an apparent intoxicated condition. He made a move toward an object on the front seat which was wrapped in a towel. The police got to the object first and discovered an unsuspected gun. The court upheld the search as reasonably justified to protect the safety of the officer. We hold that the facts here, when construed in a light favorable to supporting the trial court’s order, clearly gave the police sufficient grounds to act as they did. We, therefore, affirm the order denying the motion to suppress.

AFFIRMED.

MOORE and BERANEK, JJ., concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

Because I believe the majority decision extends the purpose and scope of a “stop and frisk” search from a carefully proscribed protective pat-down of a suspect’s clothing to an unauthorized warrantless search of his automobile, I dissent.

Shortly before 1:00 a. m. on December 7, 1978, the City of Fort Lauderdale Police Department received an anonymous telephone tip that a white male had been seen attempting to break into a vehicle in a parking lot across the street from a condominium. Officer Hart was dispatched to investigate.

When Hart arrived at the parking lot he observed Donald Hochstetler standing by the right front of his vehicle. As Hart approached, Hochstetler “kind of half jogged” around the back of the car to the driver’s door, reached for the door handle and started to enter the car. Hart ordered appellant to freeze, which he did. A pat-down for weapons, the propriety of which is not contested here, proved negative. Two other police vehicles entered the parking lot at the same time and the other officers proceeded to search the lot for signs of any break-ins. A check of the other cars in the parking lot revealed that no breaking and entering had occurred.

Hochstetler explained to Hart that he had just changed a flat tire on his car. However, his trunk was closed, all four tires on the car were fully inflated, and no tools were immediately observable. Hochstetler also produced his driver’s license as requested. While a computer check of the license was in progress, Hochstetler made what Hart called a “sudden move” towards his car, saying he was going to get his keys to open the trunk for the officers to prove he had just changed a flat tire. Hart blocked Hochstetler before he reached the door and ordered him not to enter the vehicle. Ho-chstetler complied with this order and made no further effort to enter the vehicle.

However, at this point, Hart later testified, “I felt something was wrong, and I felt that one of the possibilities (was) that it would be a weapon.” Hart explained that generally, in “cases like this, I always have a fear there’s a weapon until I find out different or I find out there wasn’t a crime.” He therefore decided to search the front seat of the vehicle for weapons.

In the course of his search, Hart discovered a brown paper bag underneath the brake pedal. The bag was opened and marijuana was found inside. After finding the bag, Hart searched the car’s glove compartment, the area under the front seats, and the trunk. Consent was given only for the search of the trunk, where Hart discovered a warm flat tire. An examination of the ground area near the right front of the car also provided corroboration of Hochstetler’s contention that he had been changing a tire.

In Florida the legislature has enacted a “stop and frisk” statute that sets out the guidelines under which a temporary investigatory stop and search incident thereto may be conducted. Section 901.151(5), Florida Statutes (1979) provides:

Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) has probable cause to believe that any person whom he has temporarily detained, or is about to detain temporarily, is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person, he may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. If such a search discloses such a weapon or any evidence of a criminal offense it may be seized. (Emphasis supplied).

Under the provisions of this statute there is no automatic right to search just because a stop has been made. Schnick v. State, 362 So.2d 423 (Fla. 4th DCA 1978). Rather, there must be circumstances indicating the presence of a weapon. Schnick, supra.

Time was when police “stops and frisks” of individuals whose suspicious conduct fell short of establishing probable cause for arrest occupied a “gray area” of the law. They existed and were clearly necessary in some cases, but their propriety was unsanctioned since they were believed to constitute a violation of the rule requiring probable cause before an arrest and a search incident thereto could be conducted. The landmark case of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), reflected a belated judicial recognition of the practice, and sought to prescribe standards by which the now-legitimated “stop and frisk” of possible criminal suspects would be governed. In Terry, the Supreme Court held that the propriety of a “stop and frisk” in a given situation depended on the balancing of two competing interests: the governmental interest of safe and effective law enforcement, and the individual interest of freedom from unreasonable searches and seizures as guaranteed by the Fourth Amendment:

Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Cf. Beck v. State of Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 226, 13 L.Ed.2d 142 (1964); Brinegar v. United States, 338 U.S. 160, 174-176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949); Stacey v. Emery, 97 U.S. 642, 645, 24 L.Ed. 1035 (1878). And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or “hunch,” but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. Cf. Brinegar v. United States, supra.

(Terry v. Ohio, supra, at 392 U.S. 27, 88 S.Ct. 1883, 20 L.Ed.2d 909.)

The factual situation in Terry involved a stop and frisk which was clearly reasonable by objective standards, which was undertaken for the sole purpose of preventing possibly imminent violence, and was properly limited in scope. The officer in Terry observed three men casing a store for the evident purpose of robbery. The men made a combined total of twenty-four passes by the store window. After one of the suspects failed to answer a request for identification, the officer frisked all three suspects, discovering weapons on two. The trial court’s denial of the defendants’ motion to suppress was eventually upheld by the Supreme Court.

The Terry court was careful to confine its holding to the specific facts of that case:

Each case of this sort will, of course, have to be decided on its own facts. We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

392 U.S. 30, 31, 88 S.Ct. 1884, 1885, 20 L.Ed.2d 911. The scope of a Terry search for weapons in the absence of probable cause for arrest “must, like any other search, be strictly circumscribed by the exigencies which justify its initiation,” 392 U.S. 25, 26, 88 S.Ct. 1882, 20 L.Ed.2d 908.

Two cases which help define the limits of a Terry search under circumstances somewhat similar to those involved herein are Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) and Brown v. State, 358 So.2d 596 (Fla. 2d DCA 1978).

In Adams v. Williams, an officer on duty at 2:15 a. m. received information from a reliable informant that the defendant, sitting in a nearby vehicle, was carrying narcotics and had a gun in his waistband. The officer approached defendant’s car and ordered the defendant to get out. When the defendant failed to exit the vehicle and rolled the window down instead, the officer, fearing for his safety, reached into the car and grabbed a gun from the defendant’s waistband. The gun was exactly where the reliable informant had said it would be. The officer’s actions predicated on the reliable informant’s tip and the defendant’s conduct were found by the Supreme Court to be reasonable under the rationale of Terry.

The factual situation in Brown v. State was described as follows:

Appellant and a man named Thomas drove their borrowed Cadillac automobile into the parking lot of a convenience store at 8:00 at night. They sat in the car for approximately one hour. Thomas entered the store, made a small purchase, and returned to the vehicle. The men continued to sit in the car. Fearing that a robbery may occur, the cashier in the store had the sheriff’s department notified. Deputies Harrison and Smith, and Police Chief Liller responded to the call. When Chief Liller’s marked cruiser entered the parking lot, appellant quickly exited his vehicle and nervously ran to the cruiser. He informed Chief Liller that the Cadillac would not start. Appellant returned to the Cadillac with Chief Liller to attempt to start the vehicle. Meanwhile, Deputy Harrison interviewed the cashier. The Cadillac started, but stalled when appellant removed his foot from the accelerator. Harrison joined Chief Liller at the driver’s door of the Cadillac. Thomas appeared to be extremely nervous. As appellant again exited the Cadillac, the officers noticed a pronounced bulge in the waistline of Thomas’ jacket. Fearing that the bulge may have been caused by a pistol, the officers commanded Thomas to remain still. As Harrison approached the passenger side of the vehicle in which Thomas was sitting, Thomas quickly shoved his hand under the armrest which divided the front seats. Harrison had Thomas step out of the automobile. Harrison patted down the outside of Thomas’ clothing and discovered that the bulge was not caused by a weapon. Harrison reached under the armrest and retrieved a plastic bag containing tinfoil packets of heroin. The two men were placed under arrest and the operator of the Cadillac, appellant, consented to a full search of the vehicle. Appellant instructed the officers in opening the broken trunk latch. This search of the car’s trunk produced a large amount of heroin and other incriminating evidence. 358 So.2d 597, 598.

The officer’s actions in Brown were found to be reasonable under the rationale of both Terry and Adams.

There are substantial and, in my view, dispositive factual distinctions between Adams and Brown, on the one hand, and the case at bar on the other. The most significant distinction between these cases and the one at hand is the presence in those cases of specific evidence of the presence of a dangerous weapon. In Adams the reliable informant specifically reported both the presence and exact location of a weapon. And in Brown the officer specifically observed a bulge in defendant’s jacket. These observations, coupled with the actions of the defendants and the other evidence of criminal conduct, specifically prompted the actions of the officers in Adams and Brown to search for a weapon. In contrast there is no evidence, much less specific, that indicated the presence of a weapon in this case. Another significant factual distinction involves the source and the nature of the officers’ initial information. In Adams, the officer acted on specific and “hot” information supplied to him by a reliable informant. The Adams court noted: “The informant was known to (the officer) personally and had provided him with information in the past. This is a stronger case than obtains in the case of an anonymous telephone tip.” 407 U.S. 146, 92 S.Ct. 1923, 32 L.Ed.2d 617 (emphasis added). In Brown, while the police did not appear to have had prior personal knowledge of the reliability of the cashier, they at least knew who she was. In both Adams and Brown, the police were certain that the defendants were the particular individuals the informants had described. By contrast, in the current case, Officer Hart not only had no way of determining the veracity of the anonymous telephone caller, he could not even be sure that the caller had referred to Hochstetler.

A third contrast between Adams, Brown and the present case is that Hochstetler provided the officer with a reasonable explanation for his behavior. No evidence of a break-in was found and had Officer Hart checked out Hochstetler’s explanation that he had been changing a flat tire, which could have been done at no danger to anyone, the whole episode would have ended then and there. Section 901.151(4), Florida Statutes (1979), specifically provides that a detainee is to be released if, after an inquiry into the circumstances which prompted the temporary detention, no probable cause for the arrest of the person appears.

A fourth serious factual distinction between Adams and Brown and the current case involves the degree of potential danger presented by the defendants to the officers. In Adams, the defendant was sitting inside his vehicle, had not been frisked, and had aroused the officer’s suspicion by rolling down his window in lieu of complying with a request to exit his car. In Brown, defendant Thomas was sitting inside his vehicle when the officer observed a bulge in his jacket; this was coupled with a furtive move apparently intended to remove or conceal an object under an armrest. The potential danger to the officers in both Adams and Brown was thus immediate, and their actions were reasonably designed to dissipate this danger. In contrast to the situations presented in Adams and Brown, Hochstetler was outside of his vehicle, had already been frisked, and had obeyed all of Officer Hart’s commands immediately. And all of this took place in the presence of two additional police vehicles and numerous police personnel. The objective of a Terry search, the prevention of possible imminent violence, had already been accomplished when Hart decided to search the automobile.

A fifth distinction between Adams, Brown, and the case at bar involves the scope of the searches undertaken. The initial search in Adams was carefully limited to the specific portion of the defendant’s clothing where the informant had indicated a gun would be found. The initial search in Brown, too, was carefully limited to defendant’s jacket and the armrest, again, the specific areas about which a reasonable suspicion existed. Here, in contrast, the officer not only conducted a body frisk, but acting solely on the basis of Hochstetler’s expressed intention to retrieve his car keys, conducted a complete search of the inside front portion of the automobile.

The majority here was apparently influenced by dicta in Brown which appears to take the Terry rationale for “stops and frisks”, a well-founded suspicion of an imminent danger to safety, a step further:

[I]t is important to note that protective searches incident to an investigative stop involve the danger that the suspect will return to a vehicle in which a weapon may be hidden, since the investigating officer may not have probable cause to arrest the suspect. 358 So.2d at 600.

In this case, it is clear that the extent of Officer Hart’s suspicions was his “feeling” that the appellant might have a weapon hidden in the car. Read in isolation without considering the factual circumstances presented in the case, the above quoted language of Brown might seem to justify a search based on such a suspicion. It is of course a sad commentary that such a suspicion can no longer be dismissed as groundless. As one court noted poignantly in a slightly different context:

Although appellant asserts that it is “incredulous” that he would open fire on the officers after they had permitted him to re-enter his vehicle, we note that the possibility is not as remote as one might think. An examination of the statistics for the year of July 1970 to June 1971 shows that 92 officers were injured and 6 slain in the course of making traffic arrests. As one court has observed “the cemeteries and police stations contain living epitaphs of those dedicated traffic officers who failed to take reasonable precautions for their own protection.

United States v. Green, 465 F.2d 620 (D.C.Cir.1972). Rare is the day that passes without fresh reports of senseless and seemingly unmotivated violence against either police officers or the private citizens whose lives our officers have the duty to protect.

It was this very concern for the safety of police officers that prompted the United States Supreme Court to uphold the right of an officer to require a person stopped for a routine traffic arrest to exit his vehicle. Pennsylvania v. Mimms, 98 S.Ct. 330, 434 U.S. 106, 54 L.Ed.2d 331 (1977). The court held that no search was involved and that the minimum discomfort caused to the motorist was more than offset by the resulting security such a requirement produced for the officer. That requirement is a far cry from the unlimited search of a private vehicle authorized by the majority here. Both our federal and state constitutions expressly prohibit general searches of the kind authorized by the majority here. And the recent passage in Florida of a separate constitutional guarantee of the right of privacy hardly suggests support for increasing the authority of the government to search private premises or property without good cause. In any case, if such an automatic right to search attendant to every temporary detention is to be granted to police authorities it should be done by the people through constitutional amendment and not by judicial fiat.

Officer Hart’s concern that Hochstetler, once permitted to return to his vehicle, might have seized a weapon and irrationally opened fire on the officers, is certainly understandable. Who among us, confronting a stranger at 1:00 a. m. under suspicious circumstances, would not share this apprehension? Yet, a search of appellant’s vehicle based on such a concern simply cannot be justified by any reasonable interpretation of Terry, Adams, or, ultimately, Brown. All of these cases are clear that “specific and articulable facts” leading to a “well-founded reason to believe an accessible weapon is hidden” are required to justify a search in the absence of probable cause for arrest. Brown v. State, supra, at 600.

ON REHEARING

PER CURIAM.

The petition for rehearing is denied.

MOORE and BERANEK, JJ., concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

In his petition for rehearing the appellant claims that our decision herein directly conflicts with this court’s decision rendered two weeks later in the case of Clements v. State, 396 So.2d 217 (Fla. 4th DCA 1981) wherein this court held:

The State argues that the search was justified as a protective search for weapons, extending beyond the immediate control of the suspects to an area where the officers could be endangered if the occupants were permitted to re-enter the vehicle, citing Brown v. State, 358 So.2d 596 (Fla. 2d DCA 1978). However, the Brown decision was specifically limited in the following manner:
We hold that under proper circumstances a police officer making a valid investigative stop involving an automobile may conduct a carefully limited search of areas accessible to occupants of the vehicle and in which the officer has, based upon specific and articulable facts, well-founded reason to believe an accessible weapon is hidden. This protective search may take place even though the occupants have been temporarily removed from the vehicle. The protective search must be limited to circumstances in which the investigating officer has received some reliable information, or has observed some furtive gesture, indicating the presence of a weapon in a particular and accessible area of the vehicle. The protective search must be conducted in a manner reasonably calculated to uncover weapons only. This extension of the scope of a protective search applies only where, at the time of the search, it appears that the suspect should be allowed to return to his vehicle. Id. at 600-601.
In the instant case, because of the nature of the crime reported in the BOLO and the circumstances surrounding the initial stop, the police officers had reason to believe that the suspects may be armed and dangerous. Nevertheless, the search cannot be justified. There was no reliable information received or furtive gesture observed indicating the presence of a weapon in a particular and accessible area of the vehicle.

At 218, 219.

I agree with appellant that the above statement from Clements constitutes a correct statement of the law and that our holding herein is in conflict with the holding in Clements.

      . Opinions vary as to the causes and methods of dealing with this problem. One view was stated by the late Justice Douglas in his Adams v. Williams dissent:
      The police problem is an acute one not because of the Fourth Amendment, but because of the ease with which anyone can acquire a pistol. A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment, which reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
      There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police.
      The leading case is United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id., at 178, 59 S.Ct., at 818. The Second Amendment, it was held, “must be interpreted and applied” with the view of maintaining a “militia.”
      407 U.S. 150, 92 S.Ct. 1923, 32 L.Ed.2d 619.

      . This case is not unlike the situation recently presented to this court in Newton v. State, 378 So.2d 297 (Fla. 4th DCA 1979). In Newton, a narcotics arrest was effected in one room of a house. This court held that, in the absence of “some reasonable grounds to suspect additional persons may be present”, the police were not within their rights in searching the remainder of the house:
      We must concede that a protective sweep of premises when an arrest is taking place would seem the circumspect thing to do for the protection of the officers involved. However, sensible as that may seem such a protective measure is only allowable when the officers have some reasonable grounds to suspect additional persons may be present. It cannot be justified routinely. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), holds that, while there is ample justification for a search of the arres-tee’s person and the area within his immediate control, “[t]here is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs .... ” Supra 762, 89 S.Ct. 2040. In order to justify an extension of the search to other rooms, be it ever so cursory, there must be some exigent circumstances constituting the reasonable grounds therefor.

        Newton v. State, supra, at 299.
      In fact, I believe a much stronger argument could be made for extending the Mimms rationale to the protective sweep situation than to the search involved herein.

      . The majority also relies on Stevens v. State, 354 So.2d 110 (Fla. 3d DCA 1978). Although I believe the decision in Stevens is questionable, the facts therein are also distinguishable. In that case, an intoxicated detainee in the clear view of a police officer attempted to grab an object wrapped in a towel lying beside him on the front seat. The defendant here did no more than announce that he was going to retrieve his car keys so he could show the officers the flat tire in his trunk. Under the majority holding, any attempt by a detainee to return to his vehicle would authorize a protective search of the vehicle. Hence, presumably, a detainee can not only be required to exit his vehicle for the security of the officer (under Mimms, supra) but also must suffer a search of his vehicle before being allowed to reenter the vehicle.


author: HERSEY, Judge. ANSTEAD, Judge,

text:
    Rosman Charles DIEJUSTE, Appellant, v. Gloria DAVIS, Appellee.
    No. 79-2420.
    District Court of Appeal of Florida, Fourth District.
    April 8, 1981.
    Rehearing Denied July 15, 1981.
    John D. Kruse of Kruse & Livoti, Fort Lauderdale, for appellant.
    Richard K. Inglis, Fort Lauderdale, for appellee.
   HERSEY, Judge.

This appeal concerns a final judgment in an action involving the respective rights of the parties in certain real estate. It is material to note that the parties were formerly husband and wife. The pleadings in the dissolution action did not raise and the final judgment of dissolution entered on April 1,1977 did not treat any issues involving property.

In August of 1978, appellee, the former wife, filed a pleading entitled Complaint for Additional Relief After Dissolution of Marriage. After disposition of preliminary motions, filing of a responsive pleading and final hearing, the judgment appealed from was entered.

That judgment determined that certain real property held by the parties during marriage as a tenancy by the entireties, converted by statute at the time of dissolution to a tenancy in common, was the sole property of appellee, former wife. Appellant was ordered to convey all of his record interest to appellee, precipitating this appeal.

It is suggested that only by an appropriate proceeding in partition could title to the real property by affected in this manner. We agree, but suggest the real problem goes deeper than the form of the pleadings.

The real question is whether property rights as between the marital partners and evolving during a marriage are finally settled by a judgment of dissolution of marriage under any and all circumstances. If the answer to that question is in the affirmative, then the doctrine of res judicata bars any subsequent action by one party to the dissolved marriage against the other, placing in issue any property right which came into existence or matured at any time prior to rendition of the judgment of dissolution. With few exceptions we find precedent requires an affirmative response to the question.

The basic rule is stated by our Supreme Court in Finston v. Finston, 160 Fla. 935, 37 So.2d 423 (1948). That court held that where property rights were before the court in a divorce proceeding and were adjudicated in the final decree of divorce the doctrine of res judicata precludes any subsequent litigation of thosé property rights. The court stated, “The rule seems well settled that a final decree in an equity suit settles all property rights of the parties and bars any action thereafter brought by either party to determine the question of property rights.” Id. 160 Fla. 935, 37 So.2d at 423-424.

By way of logical extension of this rule, the court determined, in Cooper v. Cooper, 69 So.2d 881 (Fla.1954) that res judicata could similarly bar subsequent litigation of property rights even though not specifically litigated in the divorce action. The court, in applying the Finston rule pointed out the following: “Here the property rights were not introduced in the litigation but they could and should have been so the same rule applies Id. 69 So.2d at 883.

We have previously and specifically recognized and applied this rule, Boswell v. Boswell, 352 So.2d 91 (Fla. 4th DCA 1977); Henderson v. Henderson, 226 So.2d 699 (Fla. 4th DCA 1969). See Estabrook v. Wise, 348 So.2d 355 (Fla. 1st DCA 1977), cert. denied 435 U.S. 971, 98 S.Ct. 1612, 56 L.Ed.2d 63 (1978); Simon v. Simon, 293 So.2d 780 (Fla. 3d DCA 1974); Thompson v. Thompson, 223 So.2d 95 (Fla. 2d DCA 1969).

We have encountered one recent precedent to the contrary and two seeming exceptions which we briefly note here:

In Vandervoort v. Vandervoort, 277 So.2d 43 (Fla. 3d DCA 1973) the following statement apparently contrary to the rule is made at page 45 of the opinion:

Therefore, the matters of property rights of the parties which were dealt with before the master, and reported by the master and confirmed by judgment of the court, are res judicata for the parties. As to matters of that nature which were not so dealt with before the master and not adjudicated by the judgment of August 9, 1972, the parties are at liberty to litigate them in other separate proceedings.

An exception to the rule was apparently made by the court in Orr v. John Couture, Inc., 345 So.2d 394 (Fla.3d DCA 1977) where action by the court itself in the dissolution proceeding precluded the disposition there of the wife’s claims to certain property.

In Mariness v. Sirilo, 310 So.2d 760 (Fla.2d DCA 1975) conduct of the wife at the time of the dissolution proceedings was said to estop her from preventing the husband in subsequent proceedings from seeking a determination of his rights in certain property.

There is an additional aspect of the basic question that deserves mention here. It was believed, at one time, that the court was without power to reserve jurisdiction to determine property rights subsequent to the entry of the judgment of dissolution. See Sistrunk v. Sistrunk, 235 So.2d 53 (Fla. 4th DCA 1970); McEachin v. McEachin, 154 So.2d 894 (Fla. 1st DCA 1963). To the limited extent specifically authorized by the case law, that rule has been relaxed to permit bifurcation of these issues under appropriate circumstances. Claughton v. Claughton, 393 So.2d 1061 (Fla.1980); Glazer v. Glazer, 394 So.2d 140 (Fla. 4th DCA 1981); Galbut v. Garfinkl, 340 So.2d 470 (Fla.1976); Behar v. Southeast Banks Trust Co. N. A., 374 So.2d 572 (Fla.3d DCA 1979), cert. denied 379 So.2d 202 (Fla.1980); Hyman v. Hyman, 310 So.2d 378 (Fla.2d DCA 1975), cert. discharged, 329 So.2d 299 (Fla.1976).

Applying the rule to the instant case and noting the complete lack of any reservation of jurisdiction in the judgment of dissolution, we conclude that res judicata constitutes a complete defense to the claim of appellee embodied in the complaint on which the judgment on appeal is based.

The judgment of dissolution caused Section 689.15, Florida Statutes (1979) to operate, thereby transforming the tenancy by the entirety into a tenancy in common. Cribb v. Cribb, 261 So.2d 566 (Fla. 4th DCA 1972).

As to appellant’s remaining points on appeal, we find that they are without merit. Appellant is not entitled to rental value for any period in any amount. Seesholts v. Beers, 270 So.2d 434 (Fla. 4th DCA 1972). In any event the point was neither litigated below nor preserved for appeal.

We therefore reverse the final judgment and remand with instructions to enter judgment in accordance with this opinion.

REVERSED AND REMANDED.

ANSTEAD and BERANEK, JJ., concur.

PER CURIAM.

The appellee’s motion for rehearing is denied.

BERANEK and HERSEY, JJ., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

I concur in the denial of the motion for rehearing and write only to note that although the appellee has presented a strong equitable argument for relief, this court was constrained to reject that position because of the existence of a decision of the Florida Supreme Court we perceived to be controlling and against the position of appellant. Cooper v. Cooper, 69 So.2d 881 (Fla.1954). However, we also noted the direct conflict between our holding and the prior decision of the Third District Vandervoort v. Vandervoort, 277 So.2d 43 (Fla.3d DCA 1973). Contrary to an allegation set out in appellee’s motion for rehearing we did not find the Vandervoort case to be an exception to the rule of Cooper, supra; rather, we found Vandervoort to be “contrary to the rule” and hence in conflict with our holding. Because of our express finding of conflict the appellee is free to seek review in the Supreme Court where her strong equitable arguments will be heard by a tribunal with greater authority than we to consider, or reconsider, the precedents that this court felt required the result announced.