author: ERVIN, Judge. MILLS, Chief Judge,

text:
    Marsha HOLLIS, as Personal Representative for the Estate of Tiffany Helina Hollis, Appellant, v. The SCHOOL BOARD OF LEON COUNTY, Florida, Ned B. Lovell, as Superintendent of the School Board of Leon County, Florida, et al., Appellees.
    No. JJ-496.
    District Court of Appeal of Florida, First District.
    May 19, 1980.
    Rehearing Denied June 27, 1980.

      Edward S. Jaffry of Horne, Rhodes, Jaf-fry, Stephens, Bryant, Horne & Chapman, Tallahassee, for appellant.
    J. Lewis Hall, Jr., Michael L. Granger of Keen, O’Kelley, Field & Ellis, Tallahassee, for appellees.
   ERVIN, Judge.

This is an appeal from a final summary judgment absolving the Superintendent of Leon County from any liability to the estate of Tiffany Hollis, aged five, arising from her death, caused by the alleged negligence of a school bus driver whose bus ran over her while she was crossing in front of it. The court held that the record, including the estate’s two-count complaint charging generally the superintendent with (1) vicarious negligence, and (2) active negligence in failing to have the school bus properly inspected or examined, showed only that the superintendent’s activities pertained “to governmental discretionary functions which do not give rise to tort liability.” We agree with appellant that genuine issues of material fact remain undecided and so reverse and remand.

1. SUMMARY JUDGMENT AS TO COUNT I, ALLEGING THE SUPERINTENDENT’S LIABILITY UNDER RESPONDEAT SUPERIOR

The superintendent’s vicarious responsibility for the bus driver’s negligence is determined by an answer to the following questions: Was the bus driver the employee of the superintendent as well as of the school board? If so, for purposes of suit under Section 768.28, is the superintendent an agency or subdivision of the state?

Section 768.28(1) permits actions against the state, its agencies or subdivisions for injuries, death, etc., caused by the negligent “employee of the agency or subdivision while acting within the scope of his . employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant . . . .” (emphasis supplied)

In the private sector, if the person actively responsible for an injury was in the employment of two or more persons as joint employers, both or all of them may be held liable. 53 Am.Jur.2d, Master and Servant, § 412, at 420 (1970). The general rule is that persons who combine to commit a wrong are joint tortfeasors and are responsible for the acts of each other. Therefore, if both the superintendent and the board are considered joint employers of the driver, both may be vicariously liable to the same extent as private employers. We find the superintendent is an employer of the driver.

In cases involving interpretations of the Federal Tort Claims Act, after which the Florida act is modeled, federal courts have held the primary test as to whether a person causing an injury is an employee of the government is who controls or has the right to control that person’s work. See, e.g., Logue v. United States, 412 U.S. 521, 527-528, 93 S.Ct. 2215, 37 L.Ed.2d 121, 128 (1973); Gowdy v. United States, 412 F.2d 525, 534 (6th Cir. 1969); Eutsler v. United States, 376 F.2d 634 (10th Cir. 1967); Yates v. United States, 365 F.2d 663 (4th Cir. 1966); Strangi v. United States, 211 F.2d 305 (5th Cir. 1954); Lavitt v. United States, 177 F.2d 627 (2d Cir. 1949). The rule in Florida as to non-public employers is the same. See, e.g., Mumby v. Bowden, 25 Fla. 454, 6 So. 453 (1889); St. Johns & H.R. Co. v. Shalley, 33 Fla. 397, 14 So. 890 (1894); Gulf Refining Co. v. Wilkinson, 94 Fla. 664, 114 So. 503 (1927).

Applying the same test here, we find abundant statutory authority placing control of the bus driver under the board and the superintendent. While the board is given “organization and control of the public schools of the district . . . ”, Section 230.03(2) (emphasis supplied), we consider that within the broad statutory scheme, control is in fact diffused between both the school board and the superintendent. The superintendent, as the executive officer of the school board, Section 230.03(3), has responsibility for the administration of the schools and the supervision of instruction. Id. He has the right to exercise general oversight over the district school system in order to determine problems and needs, to recommend improvements, and to recommend to the school board the adoption of policy. Section 230.32(1), (3). Additionally, he recommends in writing to the board the employment of all instructional and non-instructional personnel. Section 230.33(7)(b). He recommends plans and procedures for providing facilities for the economical and safe transportation of pupils, Sections 230.-33(1), 234.01, and he notifies the board of any school bus which does not meet all requirements of law. Section 234.02(2). Only after recommendations have been proposed by the superintendent does the board exercise its option either to reject or adopt them. See, for example, Section 230.23(8). Finally the board may not reject the recommended employment of school bus drivers except for good cause. Section 230.23(5)(b).

We conclude the district school system is a hydra-headed organization whose day-today operations are overseen by its chief administrator, the school superintendent, but whose control is technically vested in the school board. Dual control, then, is placed in both the superintendent and the school board for the operation and administration of the district school system in Florida. It necessarily follows that both the superintendent and the board controlled the actions of the bus driver, and both must be considered his joint employers.

This conclusion is supported by our previous examinations of the superintendent’s and the board’s shared responsibilities. For example, we have refused to hold a school board immune from an unfair labor practice when it argued it acted in good faith on a superintendent’s recommendation not to rehire a non-tenured refrigeration mechanic, Columbia Cty. Bd., etc. v. Public Emp. Rel. Comm., 353 So.2d 127 (Fla.1st DCA 1977). We there observed that when the board routinely accepted the superintendent’s hiring recommendations, it was sufficient proof of an unfair labor practice if the recommendations were tainted by the impermissible motives of the superintendent or other subordinate. More recently we sustained a trial court’s order allowing a blind person the opportunity to demonstrate that he could function as a teacher in physical education at a public school. Zorick v. Tynes, 372 So.2d 133 (Fla.1st DCA 1979). And, in rejecting the board’s argument that its refusal to hire the applicant was justified because the superintendent’s subordinate had not recommended his employment to it, we concluded that both “the board and the superintendent . . . share . vicarious responsibility for any unlawful purpose of the subordinate.” Id. at 142.

It remains to be determined, however, whether the superintendent, under the provisions of Section 768.28(2), may be considered an agency or subdivision of the state. The answer to this question once more is resolved by examining those federal cases which have addressed the question whether the employer of the negligent employee is an agency within the meaning of the Tort Claims Act. The cases generally state that the immediate employer of the allegedly negligent employee is a federal agency if the employer is an integral part of the government. Standard Oil Co. of California v. Johnson, 316 U.S. 481, 485, 62 S.Ct. 1168, 1170, 86 L.Ed. 1611 (1942); United States v. Holcombe, 277 F.2d 143 (4th Cir. 1960).

We think it is obvious the superintendent is an integral part of the state government. The district school superintendent, like members of the school board, is a constitutional officer. Article IX, § 5, Florida Const. (1968). While the superintendent may be appointed by the school board in a district in which the people by resolution approve the appointive system, Section 230.24, the Leon County School Superintendent has at all times been elected by the people of Leon County. Since he acts as administrator and chief executive officer of the board, who recommends the adoption of policy to the board, the board could not effectively function without his assistance. The superintendent then is an integral part of the government and must be considered an agency as that term is defined in Section 768.28(2).

We conclude that a public school bus driver serves two masters: the school board and the superintendent, and any negligent act committed by him within the scope of his employment subjects both to liability.

II. SUMMARY JUDGMENT AS TO COUNT II, ALLEGING THE SUPERINTENDENT’S NEGLIGENT FAILURE TO INSPECT OR MAINTAIN ADEQUATELY A SCHOOL BUS

We cannot accept the lower court’s conclusion that the superintendent is absolved from any liability because he acted within the appropriate limits of his discretion. The discretionary function exception to tort claims against the state, judicially adopted in Florida, Commercial Carrier Corp. v. Indian River Cty., supra, n.5, is limited to functions occurring only at the planning level, not at the operational level, defined as the level at which policy is implemented. Id. at 1021. Thus when plans are completed and carried into effect, the operations implementing such plans are not immune from tort claims. Examples of such functions include the maintenance of traffic signal lights and stop signs, id. at 1022, and of a roadway and its shoulders. Wojtan v. Hernando Co., 379 So.2d 198 (Fla.5th DCA 1980). A more analogous situation to the issue before us occurred in Seaboard Coastline Railroad Co. v. United States, 473 F.2d 714 (5th Cir. 1973), where the government raised the discretionary function defense to a tort claim filed against it by a railroad whose complaint alleged that the government’s design of a drainage system caused diverted water to undermine the railroad’s right-of-way. The court, in rejecting the defense, observed that once the government decided to build a drainage ditch, “it was no longer exercising a discretionary policy-making function and it was required to perform the operational function of building the drainage ditch in a non-negligent manner.” 473 F.2d at 716.

Similar facts exist here. To carry out statutes mandating the creation of plans to provide for the safe transportation of students, plans were not only proposed and adopted, but in fact implemented. Before the accident, a training program for bus drivers had been instituted in the Leon County school district, supervised by the superintendent, which, among other things, instructed the drivers to submit monthly reports reflecting the number of miles driven, the date of the buses’ last mechanical inspection and the number of pupils transported. The district school’s transportation department, supervised by the superintendent, also had the responsibility to inspect all buses periodically, as required by Section 234.02(1), and at each inspection a safety check list including 22 components was filled in. The list, however, contained no space for improper placement of mirrors. Nor did the training sessions attended by the drivers include instructions for them to report to their supervisors the existence of any blind spots caused by improper mirror adjustment. As a result, the negligent bus driver, although aware of the defective condition for nearly four years before the accident, never made any report to his superiors concerning its existence because he considered he had no responsibility to do so; moreover, the inspection form provided to him contained no space for mirror adjustment.

Despite the law’s demand that the superintendent administer an inspection system designed to guard against potential hazards, he — like the bus driver — also failed to take any measures to correct the hazard. The general policy of the superintendent was not to anticipate any possible defective conditions in a school bus because his administration of the district school system was one of “management by exception”, meaning that no inspection for potential hazards was undertaken unless a problem was specifically called to his attention. The end result of this curious management policy is that no one assumed the responsibility to correct the improper placement of the mirrors.

Once the school board and the superintendent implemented policy calling for both the training of school bus drivers and the inspection of the school bus transportation system, they were required to carry out the resulting operations without negligence.

The final summary judgment in favor of the superintendent is reversed as to both counts and the case remanded for further proceedings consistent with this opinion.

MASON, ERNEST E., Associate Judge, concurs.

MILLS, C. J., dissenting with opinion.

MILLS, Chief Judge,

dissenting:

I dissent.

On 15 October 1975, Tiffany Hollis, age 5, was run over by a Leon County School Board bus and killed. Marsha Hollis, as personal representative of the estate of Tiffany Hollis, brought suit against Ned Lo-vell, as Superintendent of the School Board of Leon County; the School Board of Leon County; Alphonso Smith, the bus driver; Shield Insurance Company; and the Horace Mann Insurance Company.

Count I of the complaint alleged that “the Board and Superintendent, recommended, approved, employed, directed and supervised . . . Smith . . . and Smith was acting within the course and scope of his employment by the Board and under the supervision of the Superintendent.” It was further alleged that “. not having been adequately trained or supervised by Defendants Board and Superintendent, . . . Smith recklessly and negligently operated or maintained or controlled . . the bus causing it to strike the decedent.

Count II of the complaint alleged that the Board and Superintendent failed to have the bus inspected or examined and allowed the bus to operate even though the mirrors placed around the bus would not reveal the presence of a small child in front of the bus.

Final summary judgment was entered in favor of the School Board, as to its active negligence, and in favor of the Superintendent, on the grounds that “. . . the alleged improper activities of Ned B. Lovell, individually and as Superintendent and . the alleged activities constituting the alleged active negligence of the School Board of Leon County pertain to governmental discretionary functions which do not give rise to tort liability.”

After this appeal was taken from the final summary judgment, a settlement in the amount of $40,000 between Hollis and the defendants School Board, Smith, and Shield was approved by the trial court.

The question before us is whether final summary judgment was properly entered in favor of the Superintendent. The Superintendent cannot be vicariously liable for the alleged negligence of Smith since the Superintendent was not Smith’s employer. Therefore, we must determine only whether the Superintendent can be held liable for his own alleged negligence.

Basically, Hollis alleges that the Superintendent was negligent in two respects: (1) in failing to properly inspect, examine and maintain the school bus so as to permit its operation when the mirrors would not reveal a small child in front of the bus; (2) in failing to properly train and supervise Smith.

Section 230.33(10) sets forth the duties of the Superintendent which relate to the transportation of school children.

“(10) Transportation of pupils. — Ascertain which pupils should be transported to school or to school activities, determine the most effective arrangement of transportation routes to accommodate the pupils; recommend such routing to the school board; recommend plans and procedures for providing facilities for the economical and safe transportation of pupils; recommend such rules and regulations as may be necessary and see that all rules and regulations relating to the transportation of pupils approved by the school board, as well as regulations of the state board, are properly carried into effect, as prescribed in chapter 234.”

Section 234.02 sets forth the responsibilities of the Superintendent and the School Board for the safety of school children being transported.

“234.02 Safety and health of pupils, Maximum regard for safety and adequate protection of health shall be primary requirements which shall be observed by school boards in routing buses, appointing drivers, and providing and operating equipment, in accordance with all requirements of law and regulations of the state board.
(1) Each school board shall designate and adopt a specific plan for adequate examination, maintenance, and repair of transportation equipment. Examination of the mechanical condition of each school bus shall be made by a capable mechanic at least once each month that the bus is in operation.
(2) The superintendent shall notify the school board of any school bus which does not meet all requirements of law and regulations of the state board, and the school board shall, if such school bus is in an unsafe condition, withdraw it from use as a school bus until the bus meets said requirements. . . . ”

It is apparent that the statutory responsibility for the safe transportation of school children lies primarily with the School Board, not with the Superintendent. See Surette v. Galiardo, 323 So.2d 53 (Fla.4th DCA 1975). The superintendent’s duties are limited. He is to see that the rules and regulations of the local school board and the state board are carried into effect and notify the school board if any school bus does not meet all the requirements of law and the state board’s regulations. His only other duties involve making recommendations to the school board.

In the instant case, there is no allegation or contention that the school bus did not meet all the requirements of law and the state board’s regulations. Further, the documentation attached to the motion for summary judgment establishes that the school bus in question was equipped in accordance with state law and regulation. Therefore, the only duties which the Superintendent allegedly could have breached in connection with the placement of the mirrors on the school bus, were those of recommending to the School Board “. . . plans and procedures for providing facilities for the economical and safe transportation of pupils. . ” and recommending “rules and regulations as may be necessary.” I agree with the trial court that these duties constitute discretionary functions which cannot provide a basis for tort liability. See Commercial Carrier Corp. v. Indian River Co., 371 So.2d 1010 (Fla.1979).

It was also alleged that the Superintendent did not adequately train or supervise Smith. Section 230.33(7) sets forth the duties and responsibilities of the Superintendent in directing the work of the personnel of the school system.

“(7) PERSONNEL. — Be responsible, as required herein, for directing the work of the personnel, subject to the requirements of chapter 231 and in addition he shall have the following duties:
(i) Direct work of employees and supervise instruction. — Direct or arrange for the proper direction and improvement, under regulations of the school board, of the work of all members of the instructional staff and other employees of the district school system; . . . ”

In Commercial Carrier Corp. v. Indian River Co., supra, the Supreme Court suggested that the preliminary test set forth in Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965), be utilized to determine whether a certain function is an “operational” level function or a “planning” level function. Those functions which are “planning” level or “discretionary” functions are immune from tort liability. For a function to be considered a “planning” level function, the following questions must be answered in the affirmative:

“(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (3) Does the act, omission or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?”

In my judgment, the above questions must be answered in the affirmative.

In essence, Hollis is challenging the method the Superintendent has chosen for directing, training, and supervising the school bus drivers. It is my opinion that the determination of the proper direction of school personnel is a planning level function, the wisdom of which cannot be scrutinized by the judiciary. See Commercial Carrier Corp. v. Indian River Co., supra.

I would affirm the summary final judgment.

      . The Leon County School Board and an employee, the bus driver, were joined with the superintendent as parties in the same complaint; however, during the pendency of this appeal, the board and the driver settled the claim with the estate in the sum of $40,000, which was approved by the trial court. The release of the active tortfeasor does not of course serve also to discharge the tortfeasor vicariously liable because the Contribution Among Tortfeasors Act, specifically Section 768.31(5), has been interpreted to apply to all tortfeasors, whether their liability is active or derivative. Hertz Corporation v. Hellens, 140 So.2d 73 (Fla.2d DCA 1962); Florida Tomato Packers, Inc. v. Wilson, 296 So.2d 536 (Fla.3d DCA 1974); Sun First National Bank of Melbourne v. Batchelor, 321 So.2d 73 (Fla.1975).

      . The bus driver was unable to see the small child walk by because the bus’s side mirrors were positioned in such a way as to inhibit his vision.

      .We recognize that technically a private employer and his employee are not considered joint tortfeasors when a negligent act is committed by the latter while acting within the scope of his employment. See Phillips v. Hall, 297 So.2d 136 (Fla.1st DCA 1974), stating that because the employer’s negligence is merely derived from the active negligence of the employee, the plaintiff could not, after obtaining a judgment against an employer, bring a separate action against the employee. Still, the question whether or not the employer and employee come strictly within the classification of joint tortfeasors is immaterial to this action. Here, the school board, the superintendent and the employee were all joined in one suit. A nongovernmental employer and his employee may be jointly liable to a plaintiff because, from their relationship, they are identified in the same tortious act resulting in the plaintiffs injury. Weaver v. Hale, 82 Fla. 88, 89 So. 363 (1921); Stinson v. Prevatt, 84 Fla. 416, 94 So. 656 (1922). Moreover, Section 768.28 permits an action joining both the public employer and employee. See District School Board of Lake County v. Talmadge, 381 So.2d 698, (Fla.1980).

      . Compare Section 768.28(1) with 28 U.S.C. § 1346(b), the latter exposing the United States to liability for money damages “caused by the negligent or wrongful act or omission of any employee of the Government . .

      . The Florida Supreme Court, when it adopted the operational/planning level test, also followed federal cases construing the discretionary function exception to tort claims, observing that the language in 28 U.S.C. § 1346(b) was practically identical to that in Section 768.-28(5). Commercial Carrier Corp. v. Indian River Cty., 371 So.2d 1010, 1016 (Fla.1979).

      . Compare the definition of a state agency, as provided in Section 768.28(2), with that of a federal agency, set out in 28 U.S.C. § 2671. The latter states: “[T]he term ‘Federal agency’ includes the executive departments, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States.”

      . It should be observed that the definition of agency in Section 768.28(2) is much broader in scope than it is in the Florida Administrative Procedure Act. Compare it with 120.52(1), Fla. Stat. (1977).

      . Section 768.28 does not contain any provision specifically immunizing the state from liability for negligence caused by the exercise of a discretionary function.

      . In interpreting the federal act, the courts generally hold that no discretionary function exception is involved when government officials are operating under mandatory statutes or regulations which they have a legal duty to observe and implement. Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953); Downs v. United States, 522 F.2d 990, 996-997 (6th Cir. 1975); Griffin v. United States, 500 F.2d 1059, 1066 (3rd Cir. 1974).

      .The rules of the Department of Education also set out in great detail the responsibilities of the superintendent in administering the safe transportation of school children. Among other things he is required to organize a maintenance and repair service for school buses so as to keep them in first-class condition, to see that every precaution is taken to assure mechanical safety of equipment, to make periodic inspections of equipment, and, when unsatisfactory conditions are discovered, to recommend corrective measures to the school board. Fla.Admin.Code Rule 6A-3.18(7), (8)(a), (c).


source: Caselaw Access Project

author: SCHWARTZ, Judge.

license: Public Domain

text:
    Theodore TRUSHIN, Appellant, v. The STATE of Florida, Appellee.
    No. 79-550.
    District Court of Appeal of Florida, Third District.
    May 20, 1980.

      Melvin S. Black, Miami, for appellant.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

After a non-jury trial, Theodore M. Trushin was found guilty of a violation of that portion of Section 104.061(2), Florida Statutes (1977) which makes it a felony to “directly or indirectly . . . promise anything of value to another intending thereby to buy his or another’s vote.” The basis of the charge was the fact that Trush-in, a lawyer, had distributed a letter to residents of an apartment building who were otherwise unknown to him, in which he offered to write a will without charge for anyone who would “pledge their vote” to two named judicial candidates in a forthcoming election. This appeal presents difficult and important issues concerning both the validity of the statute and the essential elements of the offense it proscribes. Upon the conclusions that the statute is constitutional and that the state’s case established its violation by the defendant, we affirm the judgment under review.

I

Facts and Proceedings Below

Trushin was charged in a one-count information which, although captioned as one for “corruptly influencing voting under § 104.061,” alleged a violation only of subsection (2) of that statute. The information alleged that:

[O]n or about the 23rd day of September, 1978, in the County and State aforesaid, [Trushin] did unlawfully and feloniously in the County of Dade, State of Florida, give or promise something of value to another or others intending thereby to buy their vote or votes, in two specific races in the November 7, 1978 General Election which was held in Dade County, Florida; or to corruptly influence them in casting their votes, in two specific races in the November 7, 1978, General Election which was held in Dade County, Florida.
In furtherance thereof the said THEODORE M. TRUSHIN on or about September 23, 1978 did prepare and deliver or cause to be prepared and delivered to a resident or residents of the Roney Plaza Apartments the following letter to-wit:

Theodore Yñ, Triislui i Law

THEODORE M. TRUSHIN. J.D.

MARITAL & FAMILY LAW

REAL PROPERTY LAW

WILLS. ESTATES & ESTATE PLANNING

SUITE M-101. 2201 COLLINS AVENUE

(HOLIDAY INN GARDEN PLAZA OFFICES)

MIAMI BEACH. FLORIDA 33139

Telephone (305) 532.4801

September 23, 1978

Dear Neighbor,

Although new to your neighborhood, I have engaged in the practice of law 'on Miami Beach for more than-20 years. During this time, 1 have had occasion to handle legal matters with both Judge Frederick N. Barad and Judge Calvin R. Mapp, on numerous occasions. I have dealt with them for many years before they went on the bench, and have appeared in their court many times since they became judges.

I unqualifiedly endorse both Frederick N. Barad for retention on the Circuit Court and Calvin R. Mapp for retention of the County Court — Men who represent the highest standares of the legal profession.

'I will be happy to discuss the qualifications and background of these men with you personally.

To every resident of the Roney Plaza Apartments who comes to my office to pledge their vote to Judge Frederick N. Barad and Judge Calvin R. Mapp, in the upcoming runoff election, I will prepare a Last Will and Testament for that person without charge.

My office is located across the street on the mezzanine floor of. the Holiday Inn, in Suite M-101.

Thank you.

Sincerely,

THEODORE.M. TRUSHIN

TMT/hc

Two witnesses testified in the state’s case at the trial. The first was Edgar Buttle who stated only that he was living in the Roney Plaza Apartments on Miami Beach when a copy of the letter set out in the information — which was introduced into evidence — was slipped under his door. There was no testimony that he or any other person who received the letter was a registered voter or even that he was a permanent resident of Florida, and thus eligible to vote under Section 97.041, Florida Statutes (1978) at the November, 1978 general election. The other witness for the prosecution was an assistant state attorney, who testified to a voluntary statement made by Trushin in which, among other things, he admitted circulating copies of the document to the various residents of the apartment building.

In both the out-of-court statement and his testimony at the trial, Trushin related his version of the circumstances surrounding the initial circulation of the letter. He stated that he had indeed signed the letter and authorized its distribution to the occupants of the Roney Plaza Apartments. The defendant stated that, at the time, he had no idea even of the existence of § 104.061(2) or the possibility that there was anything otherwise wrong with an offer to perform legal services in return only for pledging to vote for a judicial candidate. Probably because the resulting publicity given his letter had by then made him aware of the statute and of the other improprieties involved, Trushin stated without contradiction that none of the 50-odd persons who came to his office in response to the circular (or the publicity) was in fact required to pledge his vote as a condition to the receipt of his free will. On cross-examination however, he confirmed the intention which motivated his transmitting the letter in the first place:

“Q. Your original intent in sending that letter out was to have people vote and support the candidates that you have listed in that letter?
A. Not support the candidates. I guess I would have to say I wanted them to vote for the candidates, actually.”

At the conclusion of the trial, after the court had denied a motion for judgment of acquittal, it specifically stated that

“I find no evidence that the Defendant corruptly influenced another to cast his vote. However, I do find that the Defendant directly gave or promised something of value, that is, writing a will to another, intending thereby to receive his vote to support candidates Judge Barad and Judge Mapp.”

Trushin was subsequently adjudicated guilty and sentenced to serve 60 days in the county jail. This appeal followed.

II

The Constitutionality of § 104.061(2)

The defendant’s first point claims that § 104.061(2) is facially unconstitutional on grounds of vagueness and impermissible overbreadth. Notwithstanding that these issues are acknowledgedly raised for the first time on appeal, we consider their merits because a conviction for the violation of a facially invalid statute would constitute fundamental error. Sanford v. Rubin, 237 So.2d 134 (Fla.1970); In re Kionka’s Estate, 121 So.2d 644, 647 (Fla.1960) (O’Connell, J., specially concurring); Town of Monticello v. Finlayson, 156 Fla. 568, 23 So.2d 843 (1945); Silver v. State, 174 So.2d 91 (Fla. 1st DCA 1965), cert. denied, 180 So.2d 658 (Fla.1965); see Kinner v. State, 382 So.2d 756 (Fla. 2d DCA 1980), and cases cited. We hold, however, that the statute is not in fact vulnerable to either of the constitutional attacks made upon it, and that it is therefore indeed valid and enforceable.

1. Statute not Vague. Trushin’s first contention is that § 104.061(2) is void for vagueness. It is contended specifically that the use of the expression “anything of value,” which is not otherwise defined, renders the statute so unclear “that men of common intelligence must necessarily [question] its meaning and differ as to its application,” State v. Buchanan, 191 So.2d 33, 34 (Fla.1966), thus invalidating the provision on due process grounds. We entirely disagree. Simply stated, we are able to discern no lack of clarity whatever in either this or any other portion of the statute. The term “anything of value” — that which may not be given or promised to another in order to buy or corruptly influence a vote— is so completely clear and self-defining that one is tempted to rely solely on the authority of Gertrude Stein to support the proposition.

Even though the challenged expression has been employed in similar statutes for a century or more, see e. g., Watson v. State, 39 Ohio St. 123 (1883), we are aware of no authority which even seriously considers the possibility of its vagueness; there is certainly none which actually holds it so. In United States v. Chestnut, 394 F.Supp. 581, 588 (S.D.N.Y.1975), aff’d, 533 F.2d 40 (2d Cir. 1976), cert. denied, 429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 93 (1976) the court characterized a vagueness challenge to the provisions of 18 U.S.C. § 591 (1970) which defined forbidden political contributions and expenditures to include “anything of value” as “border[ing] on the frivolous.” See also Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830, supra. Similarly, even the dissenting opinion of Justice Calogero in State v. Newton, 328 So.2d 110 (La.1976), upon which, as we shall see, the defendant heavily relies on the overbreadth question, states at 328 So.2d 112, “R.S. 14:119 prohibits, among other things, the indict offering to give anything of apparent or prospective value to any voter with the intent to influence that voter in casting his ballot. This language is not vague; it is clear and unambiguous.” The majority opinion in Newton similarly dismisses the vagueness question in a single brief reference at 328 So.2d 118.

Surely no person of ordinary mental capacity needs to guess about the fact that he is precluded from offering or transferring any item which is worth anything — even, as appellant suggests, a pencil or a blotter — so long as he acts with the unlawful intent proscribed by the statute. See Zalla v. State, 61 So.2d 649, 651 (Fla.1952). Hence, the vagueness claim must fall. E. g., Sandstrom v. Leader, 370 So.2d 3, 5-6 (Fla.1979); Swinney v. Untreiner, 272 So.2d 805 (Fla.1973), cert. denied, 413 U.S. 921, 93 S.Ct. 3064, 37 L.Ed.2d 1043 (1973).

2. Statute not Unconstitutionally Over-broad. The appellant’s far more substantial challenge to § 104.061(2) is that it is facially overbroad on the grounds that it criminalizes behavior which is protected by the first amendment to the United States Constitution and by Article I, Sections 4 and 9 of the Florida Constitution. His precise claim to this effect is that § 104.061(2) invalidly proscribes such common, ordinary, and presumably protected election activity as the distribution of matchbooks, pencils, or other items of some small but discernable value, the provision of rides to the polls, and even the making of a campaign promise to lower taxes. We reject this contention simply because the statute proscribes only conduct — the purchase and attempted purchase of votes — which the state has a manifest right to regulate and does not in fact forbid any activity or conduct which is protected by the constitution.

In approaching this issue, we are aware both that any legitimate doubts as to the proper construction of § 104.061(2) are to be resolved so as to preserve its constitutionality, White v. State, 330 So.2d 3 (Fla.1976); and that, since the statute plainly regulates conduct as well as “mere speech,” its alleged overbreadth “must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 830 (1973); State v. Elder, supra. In this case, however, we find it unnecessary to invoke either of these canons of constitutional decision-making. On its face, and without the necessity of construing any ambiguity or judicially inserting any limiting qualifications, the statute is confined to non-protected, clearly criminal conduct. To repeat, it precludes giving or promising anything of value only when the defendant intends “thereby to buy [a] vote or to corruptly influence” the easting of a vote. Thus the statute, forbidding acts intended to condition another’s vote upon the receipt of a personal benefit, is plainly and properly designed only to preserve the sanctity of the ballot. Its terms, which are very similar to those of comparable “voter bribery” statutes in other jurisdictions, see 26 Am.Jur.2d Elections § 377 (1966); 29 C.J.S. Elections § 332 (1965), are strictly limited only to that conduct, and do not even purport to penalize the activity to which the appellant refers.

As to the distribution of items of relatively small value in order to promote a particular candidacy, this point is made clear by several executive opinions on the precise subject. In the most recent, 1978 Op.Div. of Elec. DE 78-36 (August 17,1978) the Division of Elections considered the propriety of the distribution of miniature “blimps” bearing a candidate’s name, as a means of campaign advertising and promotion. Summarizing previous attorney-general’s opinions on the issue, it was said:

The situation you describe seems no different from a candidate giving bumper stickers, posters, or other campaign material to a contributor. You have merely chosen to distribute an item somewhat unique to Florida political campaigns. But uniqueness does not eliminate it as a permissible campaign device.
It should be cautioned however that such blimps, or any item of value, may not be given by a candidate in exchange for one’s vote. s. 104.061(2), F.S. This statute reads as follows:
“(2) No person shall directly or indirectly give or promise anything of value to another intending thereby to buy his or another’s vote or to corruptly influence him or another in casting his vote. . .
The Attorney General has previously opined that this statute does not prevent the free distribution of items of nominal value by a candidate. Op.Att’y Gen.Fla. 066-35 (April 8, 1966). That opinion made the following determination in its analysis of certain amendments to the election law by the 1965 legislature:
“It would appear . . . that it was the intent of the legislature to liberalize the law to the extent it would permit a candidate to give away nominal items in furtherance of his candidacy so long as the give aways were not in exchange for a vote. It is doubtful that an elector’s vote could be bought with any of the . . . nominal cost items frequently used by candidates in political campaigns. The primary purpose of using such items is to give the elector some slight tangible object on which the candidate’s name can be imprinted with the thought in mind that the elector will not discard it as quickly as he would an ordinary campaign button or piece of campaign literature.” Id. (e. s.)
This 1966 opinion was reaffirmed by the Attorney General in a June 12, 1975 informal opinion to John Lloyd, then General Counsel of Broward County, which considered the current language of s. 104.061(2), F.S. The giving of blimps to their contributors would seem to be the type of activity contemplated by these opinions.
Accordingly, it is the opinion of this office that blimps being utilized as campaign advertising items may be given to contributors upon receipt of a contribution.
Summary
The distribution of items of nominal value to contributors by a candidate is not prohibited by the election laws, provided such items are not given for the purpose of buying or corruptly influencing the recipient’s vote. [e. s.]

We entirely agree with this view, and would only add that if one in fact gave or offered a pencil, a matchbook or a “blimp” with the intention of buying a vote — if, for example, it were offered, as in this case, only upon the specific condition and in return for the offeree’s pledge to vote for a particular candidate — such an act would indeed be a criminal one and could be validly forbidden. There is surely no constitutional reason for distinguishing among bribers based upon the value of the bribe.

Nor is there any possibility that a candidate may be punished for making a promise as to the official actions he would take if elected. Campaign rhetoric of this kind is simply not uttered with the criminal intent explicitly required by the statute. See Adair v. McElreath, 167 Ga. 294, 145 S.E. 841 (1928); see also Douglass v. County of Baker, 23 Fla. 419, 2 So. 776 (1887).

The conclusions we have reached on the overbreadth questions are directly supported by State v. Newton, supra, which considered the facial validity of a Louisiana statute, La.R.S. 14:119 which, in pertinent part provides:

Bribery of voters is the giving or offering to give, directly or indirectly, any money, or anything of apparent present or prospective value to any voter at any general, primary, or special election, or at any convention of a recognized political party, with the intent to influence the voter in the casting of his ballot, [e. s.]

While the Louisiana supreme court initially held the statute impermissibly overbroad, it reached a contrary conclusion on rehearing. The majority based its position solely on the fact that the conduct regulated by the provision was defined as “bribery” and that the commonly understood elements of “bribery”, specifically the corrupt intent to buy or influence another’s judgment or conduct, could therefore be read into the statute. As so interpreted, the statute was declared valid because, Chief Justice Sanders said at 328 So.2d 118:

it is clear that a platform promise of better government, lower taxes, or welfare reform made generally to a group of voters or to individual voters is not bribery within the meaning of the statute. Similarly, handbills, buttons, pencils, and dinners are commonly accepted means of publicizing a candidate’s name and qualifications, but neither do they violate the statute. Most, if not all, of these items confer no pecuniary benefit, are offered to voters generally, and most important, are offered with the intent to publicize a candidate and his views, not to buy a vote. The restriction achieved by the requirement of a corrupt intent to influence the recipient’s vote effectively prevents the statute from infringing upon a candidate’s freedom of expression, [e. s.]

Trushin contends that we should follow the original decision of the court, the opinion of Justice Calogero at 328 So.2d 111 which became the dissent, because, unlike the Louisiana statute, § 104.061(2) does not refer in so many words to “bribery.” We think this fact has exactly the opposite effect. The majority decision in Newton was able to preserve the statute only by deducing from its references to bribery that it should be “construed” to include the requirements of an intent to buy or corruptly influence a vote — even though it explicitly referred only to a simple “intent to influence the voter in the casting of [the] ballot.” Our statute requires no such “construction” by inference and insertion since the legislature itself specifically provided the validating language. If the Louisiana statute has been rendered valid by the limiting judicial construction of the Louisiana Supreme Court, see Broadrick v. Oklahoma, supra, § 104.061(2), which itself tracks that narrowing language, is all the more obviously so.

Ill

The Sufficiency of the Evidence: the Elements of the Offense

Trushin alternatively contends that the evidence was insufficient to establish each of the essential elements of the offense prohibited by § 104.061(2). Again, we disagree.

§ 104.061(2) states simply that “[n]o person shall directly or indirectly give or promise anything of value to another, intending thereby to buy his or another’s vote or to corruptly influence him or another in casting his vote.” The essential elements of the crime are therefore [1] the giving or promising to another person [2] of something of value [3] with the intention to buy or corruptly influence a vote. On the face of the matter, it seems clear that the evidence below amply supported each of these elements: Trushin’s letter [1] made a promise to Buttle and the several others to whom it was sent [2] of something of value, the services involved in the preparation of a will; [3] “intending thereby to buy [a] vote” as demonstrated by the letter’s explicit statement that the free will would be forthcoming only in return for the recipient’s agreement to vote for Judges Barad and Mapp, and Trushin’s own admission on the stand that his specific intention in circulating the promise was to induce people to vote for those candidates. We find no merit in any of Trushin’s specific legal contentions to the contrary of this analysis of the statute and the evidence.

1. No requirement that Promisee be Registered Voter. The defendant’s primary contentions are based on the state’s acknowledged failure to establish that But-tle or anyone else to whom the letter was sent was actually registered or eligible to vote in the November 1978 election. In support of this claim, he argues by analogy to the elements of the former version of the public-official bribery statute, Section 838.-011, Florida Statutes (1969), as interpreted in such cases as Nell v. State, 277 So.2d 1 (Fla.1973). Since one of the elements of that offense was “knowledge on the part of the accused of the official capacity of the person to whom the bribe [was] offered,” 277 So.2d at 5, Trushin contends that proof that the person to whom an unlawful promise is made is a registered or eligible voter — that is that he could lawfully vote — is an essential element of the crime proscribed by § 104.061(2). We reject this claim because the line of reasoning upon which it is based is unsupportable.

Section 838.011 applied, by its express terms, only to persons who made corrupt payments or offers “to any public officeP’ [e. s.]. Thus, the element that the offeree be such a public officer was required by the statute itself. In direct contrast, § 104.-061(2) requires only that the corrupt transfer or promise be made to “another.” Cf. State v. Canova, 278 Md. 483, 365 A.2d 988 (1976). Even more pointedly, “another” is used instead of the term “elector” — a legally registered voter — which is specifically employed in § 104.061(1) (forbidding improper influence upon “any elector”) and was contained in the now-repealed Section 99.172, Florida Statutes (1977) (forbidden to give or promise anything of value “to any elector”). We must conclude that by using “another,” rather than “elector” or “registered voter” — either of which would have been the equivalent of “public officer” in § 833.011 — the legislature specifically meant not to include that element in § 104.061(2). See Florida State Racing Commission v. Bourquardez, 42 So.2d 87 (Fla.1949).

A possible — and very plausible — reason for the legislative decision to this effect may be found in Lepinsky v. State, 7 Ga.App. 285, 66 S.E. 965 (1910). Lepinsky, apparently the only decided case on the subject, squarely holds that the elements of the crime of “buying a vote” do not include a showing that the vote to be purchased is a lawful one. At 66 S.E. 967, the court said:

The second count of the demurrer alleges that the accusation is defective because it fails to allege that Levy was a registered voter and entitled to vote at the primary in question. The statute does not confine the offense to the buying of a registered vote, and we think wisely so. The offense against the purity of elections and good morals would be just as flagrant if, by means of money, one should induce another who was not registered to fraudulently cast a vote to which he was not entitled, as if the corrupted voter was duly entitled to vote. It is possible that one who has not registered may, by assuming to be a person whose name appears upon the list, fraudulently induce the election managers to allow him to vote, and certainly, if he was induced to vote this fraudulent ticket by the use of money, he who induced him to commit this double crime would come as much in the purview of the statute as one who corrupted the franchise of a voter duly registered, [e. s.]

See also State v. McCrocklin, 186 Ind. 277, 115 N.E. 929 (1917) (immaterial whether bribee actually voted in election).

We find support for our conclusion that the legality of the vote sought to be purchased is not an element of § 104.061 in State v. Brown, 298 So.2d 487 (Fla. 4th DCA 1974). In considering another provision of Chapter 104, Section 104.041, Florida Statutes (1971), which forbids fraudulent conduct “in connection with any vote,” the court held at 298 So.2d 490-91:

Appellee contends that since the absentee ballot viewed by the grand jury was invalid there can be no violation of law, as a void ballot does not constitute a vote within the meaning of § 104.041, F.S. We reject that suggestion, because § 104.-041 includes within its proscriptions attempts to perpetrate the prohibited conduct. Thus whether or not the ballot was valid, one can be guilty of an attempt to perpetrate a fraud prohibited by the statute. [e. s.]

The direct pertinence of that case to this one lies in the fact that Trushin’s promise or offer of a free will was in effect likewise an “attempt” to buy a vote, which, as in the case of “attempted” bribery of a public official is subsumed in and comprehended by the completed crime. See Coleman v. State ex rel. Mitchell, 132 Fla. 845, 182 So. 627 (1938); State v. Napoli, supra; Craig v. State, 244 So.2d 151 (Fla. 3d DCA 1971); cf. also, e. g., State v. Tomas, 370 So.2d 1142 (Fla.1979); McIntyre v. State, 380 So.2d 1064 (Fla. 2d DCA 1980). As to such conduct, the mere making of the forbidden offer or promise constitutes a violation of the statute; the offer need not be accepted or even responded to. As the supreme court said in Zalla v. State, 61 So.2d 649, 651 (Fla.1952):

The gist of the offense of “attempted bribery” is the criminal intent to undermine the proper and orderly administration of justice. The law punishes an offer which is calculated to debase. The corpus delicti is the corrupt intent. 8 Am.Jr. page 891, Sec. 10; Ford v. Commonwealth, 1941, 177 Va. 889, 15 S.E.2d 50; Commonwealth v. Baker, 1941, 146 Pa.Super. 559, 22 A.2d 602; Anno. 52 A.L.R. page 821.

Trushin, by offering a will only to those who had agreed to vote for his candidates, obviously, and as he said, intended to “buy” those votes. It follows that the transmission to others of the promise itself completed the crime, although the capacity and even the identity of those “others” were previously unknown to the defendant. See State v. Schleifer, 99 Conn. 432, 121 A. 805 (1923) (solicitation of a felony to a crowd); Reg. v. Most, 14 Cox, C.C. 583, 44 L.T.N.S. 823, 7 Q.B.Div. 244 (1881) (solicitation of a crime by newspaper advertisement). Since this is true, it cannot matter whether the persons to whom the letter was sent and from whom Trushin intended to purchase the votes were legally capable of selling them. See Brown v. State, supra, Lepinsky v. State, supra.

2. Preparation of Will “Anything of Value.” Trushin’s claim that the promised preparation of a will was not shown to be “anything of value” merits little response. First, it is obvious that the legal services involved are objectively worth at least something. See Zalla v. State, supra. Second, Trushin is subjectively unable to claim to the contrary — that is, to suggest, as he does, that he considered his efforts routine and valueless or that there was no showing that they were regarded otherwise by Buttle or anyone who received the letter. This is so because Trushin himself promised the will in order to induce the sale of the vote. As Zalla says at 61 So.2d 651:

The offer by appellant “to guarantee that the said number would come out and be the winning numbers” was an expression of an ability to produce a bribe. If made as charged in the information, appellant must have considered it of sufficient value at the time to influence the police officers. He is in no position to insist now that his “guarantee” was worthless. Commonwealth v. Hurley, 1942, 311 Mass. 78, 40 N.E.2d 258.

3. Promise made with forbidden intent to buy a vote. Finally, we regard as unsubstantial the claim that Trushin did not possess the criminal intent required by the statute. The statutorily forbidden intent to “buy a vote” — that is, to condition a vote upon the receipt of the valuable benefit which Trushin promised rather than upon considered individual judgment alone, see State v. Newton, supra; State v. Elting, 29 Kan. 397 (1883) — was clearly established. The facts that Trushin may have acted only out of a misguided sense of public service and received no pecuniary benefit himself are irrelevant. Diehl v. Totten, 32 N.D. 131, 155 N.W. 74 (1915); Carrothers v. Russell, 53 Iowa 346, 5 N.W. 499 (1880). The statute criminalizes attempts, from whatever source, and for whatever reason, to exchange a vote for a consideration. It is obvious that this is just what Trushin promised and “intended” to do.

IV

Conclusion

Some might consider that the facts of this case demonstrate that Trushin may have acted stupidly and unethically in circulating his offer to bribe by handbill, but do not merit his conviction of a felony. We do not agree with such a characterization of the defendant’s conduct. The “bottom line” is that he offered to purchase votes in return for services rendered. One need not be a lawyer or aware of § 104.061(2) to know that it is wrong to try to pervert the electoral process in this way. The legislature rightly forbids this conduct; and Trushin was rightly convicted of violating its command.

Affirmed.

      . Section 104.061, Florida Statutes (1977) provides, in its entirety:
      104.061 Corruptly influencing voting.
      (1) Whoever by bribery, menace, threat, or other corruption whatsoever, either directly or indirectly, attempts to influence, deceive, or deter any elector in voting or interferes with him in the free exercise of his right to vote at any election is guilty of a misdemean- or of the first degree, punishable as provided in s. 775.082 or s. 775.083 for the first conviction, and a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, for any subsequent conviction.
      (2) No person shall directly or indirectly give or promise anything of value to another intending thereby to buy his or another’s vote or to corruptly influence him or another in casting his vote. Any person who violates this subsection is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. However, this subsection shall not apply to the serving of food to be consumed at a political rally or meeting.

      . Buttle made no response to the letter other than to bring it to the attention of the opponent of one of the judges mentioned.

      . He and his secretary both testified that she had erroneously mistranscribed his dictation from the requirement that a resident come to his office to “pledge their support" for the candidates in question, to “pledge their vote," as the letter actually read. Even assuming that this would make some legal difference, it is obvious, particularly since Trushin admittedly signed the letter in its final form, that the tria) judge was free to disbelieve this testimony.

      . It was admitted by Trushin, and conclusively otherwise established, that he conceived and executed the idea entirely on his own and totally without the knowledge or approval of either judicial candidate to whom he attempted to lend his unsolicited and unwelcome support.

      . In response to the rather self-evident suggestion that the letter might have been really intended as a means of soliciting legal business for his new office location, Trushin blandly told the state attorney that he felt there was no ethical impropriety in view of the “new supreme court rulings where they allow advertising [and] so forth.”

      . None of the persons who responded to the letter testified at the trial.

      . Because, as elaborated below, the crime was complete as soon as the letter-promise was circulated, we regard this fact as irrelevant.

      . The first mention of a constitutional challenge to the statute came in the motion for new trial, which the defendant admits was far too late and which the trial court therefore properly refused to consider. See Fla.R.Crim.P. 3.600.

      . As discussed below, we have also determined that the case may not be disposed of on other grounds, without reaching and deciding the issue of the statute’s validity. Compare Singletary v. State, 322 So.2d 551 (Fla.1975); State v. Bruno, 104 So.2d 588 (Fla.1958). The constitutional question is discussed first only for ease of analysis.

      . Our conclusion to this effect makes it unnecessary to resolve the very difficult question of whether one who, like Trushin, may not validly contend that the statute is unclear as applied to his own actions (plainly, a free will is something of value) has standing to claim that a statute which regulates first amendment-protected activity is void for vagueness, as he clearly does in the case of an attack for over-breadth. Compare Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971) with Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).

      . “Rose is a rose is a rose is a rose.”

        Sacred Emily [1913]

      . As we point out infra, it is the requirement of an unlawful intent which saves the statute from the claim of unconstitutional overbreadth. The extent of the value of the item offered or given for the forbidden purposes obviously makes no difference.

      . As noted supra, at n.10, there is no doubt of the defendant’s standing to raise this issue. State v. Keaton, 371 So.2d 86 (Fla.1979); State v. Elder, 382 So.2d 687, n.2 (Fla.1980).

      . See Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); NAACP v. Alabama, 377 U.S. 288, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964); Hobbs v. Thompson, 448 F.2d 456 (5th Cir. 1971); Phillips v. City of Flint, 57 Mich.App. 394, 225 N.W.2d 780 (1975).

      . E. g., White v. State, supra; State v. Newton, supra.

      . As to the clear meaning of this expression as implying criminality, see Leader v. Sandstrom, supra.

      . Of course, there neither is nor could be a contention either that the state may not legitimately forbid the purchase or the attempted purchase of a vote, or that words which may be employed in such an undertaking are immunized by the first amendment. See Tipton v. Sands, 103 Mont. 1, 60 P.2d 662 (1936); People v. Hochberg, 62 App.Div.2d 239, 404 N.Y.S.2d 161, 168 (1978).

      . Prior to 1965, the pertinent statutes, Sections 99.172(3) and 104.061 Florida Statutes (1963), prohibited giving or promising anything of value “in the furtherance” of a candidacy. See 1950 Op.Att’y Gen.Fla. 050-83 (February 17, 1950); 1951 Op.Att’y Gen.Fla. 051-421 (November 23, 1951); 1951 Op.Att’y Gen.Fla. 051-471 (December 19, 1951). There is an obvious and compelling distinction between this language (of highly dubious constitutionality) and the specific requirement in the present version of § 104.061(2), of an intent to corruptly influence or to “buy a vote” — that is, to exchange a vote as the quid pro quo or the consideration for furnishing something of value in return.

      . This opinion concluded:
      [I] would be inclined toward the position that under the provisions of §§ 99.172 and 104.061, F.S., as amended, it was the intent of the legislature to allow candidates to give away such items as matchbooks, pencils, blotters, balloons, combs and other nominal cost items in promoting their candidacy so long as such give aways are not in exchange for a vote. [e. s.]

      . In arguing to the contrary, the appellant points to the proviso which states that § 104.-061(2) “shall not apply to the serving of food to be consumed at a political rally or meeting.” It is suggested that this specific exemption (which was transferred from Section 99.172, Florida Statutes (1975), when that statute was repealed by Ch. 77-175, § 66) implies that all other innocuous items of symbolic speech remain included within the reach of the statute. We think otherwise. It seems to us that the exclusion is properly regarded as just that: a provision that the statute does not apply to one who provides a campaign meal, even if he does so with the otherwise forbidden criminal intent to buy or corruptly influence a vote. Of course, Trushin cannot (and does not) complain that the legislature has seen fit not to punish particular conduct it had the right to condemn. See Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955); Vining v. Avis Rent-A-Car Systems, Inc., 378 So.2d 280 (Fla.1979); Brock v. Hardie, 114 Fla. 670, 154 So. 690 (1934); cf. Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962) (grounds supporting constitutional challenge not shown).

      .Though not a meal at a campaign rally. Ibid.

      . It is not for us to say whether we agree with Justice Calogero that the majority view represented an impermissible rewriting of the statute contrary to the legislative intent. See State v. Keaton, supra; Brown v. State, 358 So.2d 16 (Fla.1978).

      . The significantly amended version of this statute is now Section 838.015, Florida Statutes (1979). As to the reasons for the amendment, see State v. Napoli, 373 So.2d 933, 935 (Fla. 4th DCA 1979).

      . Our holding that the capacity of the prom-isee as a registered voter is not an element of the crime results in the rejection of Trushin’s claim that his “confession” was improperly admitted because the corpus delicti of the offense had not been previously established by Buttle’s testimony.

        .Nell also held that the “matter sought to be influenced must be within the scope of an officer’s legal duties.” 277 So.2d at 4. Whatever the merits of this conclusion, see State v. Napoli, supra, n.23, it was also based upon language in Section 838.011, Florida Statutes (1973) which has no equivalent in § 104.061(2). See the portions of § 838.011 emphasized by the court at 277 So.2d 4.

      . In this connection, it is not irrelevant that the statute penalizes only the buyer or attempted buyer of a vote; it does not seem to be a Florida statutory crime to sell one.

      . The problem presented by this case is related to the question of whether one may be guilty or an “attempt” to commit a crime which is legally or factually impossible to complete. See United States v. Oviedo, 525 F.2d 881 (5th Cir. 1976). (The issue was directly involved though not specifically addressed in State v. Brown.) It is unnecessary to enter that jurisprudential thicket here, however, because, as we have held, the statutory provision which Trushin violated makes the ability to secure a valid vote irrelevant when there is an intent to purchase one. See Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966) (crime to “ ‘endeavor’ to interfere with a juror” who in fact never served as such and was never bribed or even approached); Padgett v. State, 378 So.2d 118 (Fla. 1st DCA 1980) (crime to “endeavor” to traffic in stolen property which is not in fact stolen).

      . We have determined to certify this case to the supreme court as one involving issues of great public importance concerning the validity and interpretation of § 104.061(2).


author: NESBITT, Judge.

text:
    Fernando LOPEZ, Appellant, v. FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellee.
    No. 79-1801.
    District Court of Appeal of Florida, Third District.
    May 20, 1980.
    As Amended on Denial of Rehearing June 24, 1980.
    Stabinski, Funt, Levine & Vega and Regina F. Zelonker, Miami, for appellant.
    Victor J. Dirse’, Miami, for appellee.
    Before HUBBART, SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

This is the second appearance of this case before this court. In Ochoa v. Lopez, 358 So.2d 1173 (Fla. 3d DCA 1978), a directed verdict in favor of Lopez was reversed with directions to try the narrow issue of whether the vehicle owned by him and insured under the policy was required to be registered in Florida.

Following remand, Lopez filed an amended complaint to join the appellee, Fidelity & Casualty Company of New York (Fidelity), in order to seek, in the alternative, personal injury protection (PIP) benefits as a relative under a policy issued to his step-father, Waldo I. Rodriguez. Fidelity moved for and was granted summary judgment and this appeal ensued.

It is undisputed that Rodriguez owned an automobile registered in Florida covered under a policy issued by Fidelity which afforded PIP benefits. Fidelity is not in a position to contend that Lopez may not qualify for coverage under Rodriguez’ policy because Section 627.736(4)(d), Florida Statutes (1979), in pertinent part, provides:

(d) The insurer of the owner of a motor vehicle shall pay personal injury protection benefits for:
1. Accidental bodily injury sustained in this state by the owner while occupying a motor vehicle, or while not an occupant of a self-propelled vehicle if the injury is caused by physical contact with a motor vehicle.
3. Accidental bodily injury sustained by a relative of the owner residing in the same household, under the circumstances described in subparagraph 1. or subpara-graph 2., provided the relative at the time of the accident is domiciled in the owner’s household and is not himself the owner of a motor vehicle with respect to which security is required under ss. 627.730-627.741.

Fidelity urges that Lopez was not injured “while occupying a motor vehicle” under the cited statute and therefore seeks to invalidate Rodriguez’ PIP benefit coverage.

We reject this contention for the same reasons announced in Ochoa v. Lopez, supra, and reverse the grant of summary judgment in favor of Fidelity with directions to try the narrow issue of whether the vehicle owned by Lopez was required to be registered in Florida.

Next, Fidelity contends that coverage is negated under the exclusionary provisions of Section 627.736(2)(a) which provides:

(2) Authorized exclusions. — Any insurer may exclude benefits:
(a) For injury sustained by the named insured and relatives residing in the same household while occupying another motor vehicle owned by the named insured and not insured under the policy or for injury sustained by any person operating the insured motor vehicle without the express or implied consent of the insured.

While we held this exclusion valid in Industrial Fire and Casualty Insurance Company v. Jones, 363 So.2d 1168 (Fla. 3d DCA 1978), it is not applicable in the present case because Rodriguez did not own the vehicle occupied by Lopez.

Lopez also appeals from the denial of his motion for partial summary judgment in which he sought to have it determined that he was a relative of Rodriguez and an occupant of the motor vehicle. Since this feature of the case is undisputed, Lopez’ motion for partial summary judgment should have been granted.

For the foregoing reasons, the orders denying Lopez’ partial summary judgment and granting final summary judgment in favor of Fidelity are reversed and remanded for further proceedings.


author: COBB, Judge.

text:
    L. R. ROOKS, a/k/a Leroy Rooks, Appellant, v. Charles A. SHADER, Joseph F. Redoutey, John G. Pierce et al., Appellees.
    No. 79-1201/T4-575.
    District Court of Appeal of Florida, Fifth District.
    May 21, 1980.
    Rehearing Denied June 16, 1980.

      S.G. Green, Orlando, for appellant.
    J. Sam Owens, Jr. of Fishback, Davis, Dominick & Bennett, Orlando, for appellee Charles A. Shader.
    John G. Pierce, Orlando, for appellees Joseph F. Redoutey and John G. Pierce.
   COBB, Judge.

On September 8,1972, Rooks entered into a contract to sell certain real property to Lobo Golf Corporation. The sale price was part cash and part stock of Lobo Golf Corporation. The contract contained the following special clause:

(d) Seller shall have the option to require Buyer to repurchase all of such shares during a six (6) month period beginning two years after closing of this purchase, at Ten Dollars ($10.00) per share. In the event Buyer is unwilling or unable to repurchase such shares, Seller shall have the right to sell such shares to Charles A. Shader, Joseph Redoutey and John G. Pierce, and such persons have executed this Schedule B to guaranty to Seller this option to repurchase. Buyer shall have the option to repurchase the shares of its Common Stock being issued to Seller under the terms of this agreement at Ten Dollars ($10.00) per share for a two (2) year period beginning on the date of closing.

Shader, Redoutey, and Pierce signed the contract as guarantors.

On September 30, 1975, Rooks filed a one-count complaint against the appellees, alleging that they had refused to comply with the stock repurchase guaranty. Over the next four years, Rooks filed several amended complaints that the trial court kept dismissing with leave to amend. Each time that Rooks filed a further amended complaint, he added more counts. Finally, on March 16, 1979, the trial court dismissed the fourth amended complaint, which had grown to eight counts, with prejudice. Rooks appealed.

A trial court’s conclusion to permit or refuse amendment to pleadings will not be disturbed on appeal in the absence of abuse of discretion. Versen v. Versen, 347 So.2d 1047 (Fla. 4th DCA 1977); Triax, Inc. v. City of Treasure Island, 208 So.2d 669 (Fla. 2d DCA 1968). Counts II through VIII of the fourth amended complaint are repetitious, conclusory, confusing, and three are barred, in whole or in part, by Section 517.359, Florida Statutes. In light of the record as a whole, we do not think that the trial court abused its discretion in dismissing these counts with prejudice.

However, the trial court did err in dismissing Count I. Appellees attacked that count on the basis that the appellees were only conditional guarantors who could not be sued until Rooks had sued and gotten a judgment against Lobo Golf Corporation. Appellees relied upon Scott v. City of Tampa, 30 So.2d 300 (Fla.1947).

A contract of guaranty may be absolute or it may be conditional. An absolute guaranty is a contract by which the creditor is promised that if the debtor does not perform his obligations, the guarantor will perform. An absolute guarantor becomes liable immediately upon default by the debtor. 30 Fla.Jur. Suretyship & Guaranty § 34 (1974); 38 Am.Jur.2d Guaranty § 21 (1968). A conditional guaranty contemplates as a condition of liability on the part of the guarantor, the happening of some contingent event other than the default by the principal debtor. The obligation of the guarantor will not be enforced unless the specified event has occurred. The usual conditional guaranty provides that no liability will be incurred by the guarantor until the creditor has used due diligence to attempt to collect the debt from the principal debtor. 30 Fla.Jur.Sure-tyship & Guaranty § 34 (1974); 38 Am. Jur.2d Guaranty § 21 (1968).

In the Scott case, the contract contained the language that the guarantor would not be liable until the creditor had “failed to collect the same by suit” against the principal debtor. This made the guaranty in the Scott case a conditional guaranty. In the contract involved in the case at hand, the pertinent language is that the appellant shall have the right to sell the stock to the appellees “in the event [Lobo] is unwilling or unable to repurchase” the stock. This is an absolute guaranty.

Therefore, we reverse that portion of the trial court's order dismissing Count I.

AFFIRMED in part; REVERSED in part.

DAUKSCH, C. J., and SHARP, J., concur.


author: DOWNEY, Judge.

text:
    Patrick J. ROBAN and Edward S. Davis, Appellants, v. STATE of Florida, Appellee. John DeMARCO, Appellant, v. STATE of Florida, Appellee. Daniel SESSANNA and Alan Sheets, Appellants, v. STATE of Florida, Appellee.
    Nos. 78-820 to 78-822.
    District Court of Appeal of Florida, Fourth District.
    May 21, 1980.
    Rehearings Denied July 2, 1980.

      Philip G. Butler, Jr. of Foley, Colton & Butler, P. A., West Palm Beach, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Glenn H. Mitchell, Asst. Atty., Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellants were charged with possession of marijuana in excess of 100 pounds and, after trial by jury, they were found guilty as charged.

Prior to trial all of the appellants moved to suppress the contraband involved on the grounds that their arrest and the search and seizure which followed their arrest were invalid. The trial court denied the motions to suppress, and the case proceeded to trial.

During the course of the trial the contraband was received into evidence against the various defendants over their objection. The specific nature of the objections was that the State had failed to prove: (a) any single individual defendant had constructive possession of the contraband with the knowledge of its illegal character, and (b) the chain of custody.

Also during the trial the prosecutor was interrogating a deputy sheriff who had arrested appellant Roban. The deputy described how he had apprehended Roban and brought him to the deputy’s patrol car where he read Roban his Constitutional rights. The prosecutor then asked, “Now, after you advised him of his rights, what did you do?” The deputy answered, “I asked him if he wanted to say anything, and he said no.” Four questions later appellant’s counsel requested that the jury be excused. He then made a motion for a mistrial, which the court ultimately denied.

The two contentions presented on appeal are:

1) the trial court erred in denying appellants’ motion to suppress;
2) the trial court erred in denying appellant Roban’s motion for mistrial.

In our opinion the first point has not been preserved for review. The grounds of the objection made when the contraband was offered into evidence at the trial were not the same as those relied upon during the motion to suppress. That constitutes a waiver of those grounds relied upon during the suppression hearing. As the court said in Jones v. State, 360 So.2d 1293 (Fla. 3d DCA 1978):

We note initially that although the defense moved to suppress this evidence prior to trial, no specific objection was raised at trial to the admissibility of either the toxicological test results or the testimony as to the cause of death. Failure to renew an objection at trial contemporaneously with admission of the contested evidence constitutes a waiver of the right to appellate review of an alleged error, even though issues of constitutional dimension are claimed to exist. 360 So.2d at 1296.

See also: Kiddy v. State, 378 So.2d 1332 (Fla. 4th DCA 1980).

Appellants’ second point has merit. If a state witness makes any comment upon a defendant’s exercise of his right to remain silent and the trial court (upon timely motion by defense counsel) does not grant a mistrial, the court commits an error of constitutional dimension that is reversible without consideration of the doctrine of harmless error. Bennett v. State, 316 So.2d 41 (Fla.1975); Shannon v. State, 335 So.2d 5 (Fla.1976); Dozier v. State, 361 So.2d 727 (Fla. 4th DCA 1978).

The State contends that appellant Roban failed to make a contemporaneous objection to the question and thus under Clark v. State, 363 So.2d 331 (Fla.1978), the point is waived. We reject that contention because the question asked was proper and gave no notice of the unsolicited answer. The answer contained the offensive comment. Appellant’s motion for mistrial was not made until after three more questions were asked; however, we feel that is within the time frame for a contemporaneous objection.

The State further contends that the trial court properly denied the motion for mistrial because the witness’s volunteered testimony did not constitute a remark concerning the defendant’s right to remain silent. The State bases this contention on the fact that after the witness testified he had advised Roban of his constitutional rights and received a negative answer to the question whether Roban wanted to say anything, the State introduced into evidence an oral inculpatory statement of Ro-ban. Thus, the State argues, the witness’s comment could not be construed to be a comment on Roban’s right to remain silent because he did not remain silent.

While conceding the logic of the State’s argument, we are required by the strictures of stare decisis to reject it. See Clark v. State, 363 So.2d 331 (Fla.1978); Breniser v. State, 267 So.2d 23 (Fla. 4th DCA 1972); Gifford v. State, 355 So.2d 436 (Fla. 4th DCA 1978). But see United States v. Martinez, 577 F.2d 960 (5th Cir. 1978), cert. denied 439 U.S. 914, 99 S.Ct. 288, 58 L.Ed.2d 262.

Accordingly, we affirm the judgment and sentence as to all appellants except appellant Roban. We reverse the judgment and sentence as to him and remand his case for a new trial.

AFFIRMED IN PART; REVERSED IN PART with directions.

LETTS, C. J., and ANSTEAD, J., concur.


author: PER CURIAM.

text:
    George BLAIR, Appellant, v. STATE of Florida, Appellee.
    No. 78-1216.
    District Court of Appeal of Florida, Fourth District.
    May 21, 1980.
    Rehearing Denied July 9, 1980.

      Philip Carlton, Jr., of Law Offices of Philip Carlton, Jr., Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Kenneth G. Spillias, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The appellant, George Blair, was found along with two companions aboard a boat which was stopped during the morning hours and searched by a marine patrol officer. The search revealed the presence of a large quantity of marijuana. Appellant was charged and subsequently convicted of possession of marijuana in excess of one hundred pounds. Hence this appeal.

Appellant has challenged the sufficiency of the evidence to sustain his conviction. At trial, the total weight of the marijuana admitted into evidence was 197 pounds, 20 ounces. However, this gross weight included the weight of burlap and plastic bags used to wrap the bales, as well as the weight of the stems and stalks of the mature marijuana plant. Appellant now urges that since the state presented no evidence as to the actual weight of the prohibited substance, which is an essential element of the crime charged, the trial court erred in denying appellant’s motion for judgment of acquittal under the rule set forth in Purifoy v. State, 359 So.2d 446 (Fla.1978). We agree.

In Purifoy v. State, id., our supreme court noted that Section 893.02(2), Florida Statutes (1977), defines “cannabis” to exclude “the mature stalks of the plant.” The term “stalks” includes “stems.” Purifoy v. State, id. After determining that Section 893.-02(2) expressly excludes the possession of “stalks” from its definition of criminal conduct, the court continued:

No one disputes that the state must establish a prima facie case of guilt by showing that the accused was in possession of a prohibited substance, and for this crime that the amount in his possession exceeded five grams by weight. Absent that showing, the accused is entitled to acquittal without the necessity of offering any defense whatsoever. The parts of the cannabis plant listed in the second sentence of Section 893.02(2), which include “the mature stalks of the plant,” are by definition not prohibited substances. In order to obtain a felony conviction, then, the state has the burden of proving that the quantity found in the defendant’s possession exceeds five grams after all excluded matter has been removed.
* * # * * *
In a case such as this, where a portion of the substance introduced by the state as contraband is claimed by the defendant to be non-prohibited matter, it becomes the state’s burden to prove that the weight of the contraband matter alone exceeds the statutory threshold of five grams. To hold otherwise would not only place an intolerable burden on criminal defendants, but would contravene the fundamental rule that the prosecution must prove every essential element of the crime charged. Purifoy v. State, supra at 449 (footnotes omitted).

Clearly, under Purifoy, the state failed in its burden to prove an essential element of the crime charged, in this ease the weight of the illegal substance.

Accordingly, the judgment, sentence, and order placing defendant on probation during a portion of the sentence is reversed, vacated, and set aside, and the cause remanded with direction to enter judgment and sentence on the lesser included offense of possession of more than 5 grams of marijuana. See Clark v. State, 337 So.2d 798 (Fla.1976).

Reversed and remanded with directions.

ANSTEAD, J., and BAKER, JOSEPH P., Associate Judge, concur.

CROSS, SPENCER C., Associate Judge, dissents without opinion.


author: BERANEK, Judge.

text:
    STATE of Florida, Appellant/Cross-Appellee, v. David Scott CLARK, Appellee/Cross-Appellant.
    No. 79-2386.
    District Court of Appeal of Florida, Fourth District.
    May 21, 1980.
    Rehearing Denied July 2, 1980.

      David H. Bludworth, State’s Atty. and William B. King, Asst. State’s Atty., West Palm Beach, for appellant/cross-appellee.
    Richard W. Springer, Edward A. Garrison, and Gary S. Israel of Kohl, Springer, Springer & Garrison, Palm Springs, for ap-pellee/cross-appellant.
   BERANEK, Judge.

The case below is a first degree murder prosecution. The indictment charges that the defendant killed Lynn Lizer on December 24, 1978, by strangulation or by inflicting blows to the head with an ax. The State appeals a pretrial order suppressing evidence and defendant cross-appeals those portions of the same order which declined to suppress certain other evidence. We reverse the suppression of evidence and dismiss the cross-appeal.

On the morning of December 26, 1978, dismembered parts of a body were discovered in different trash receptacles in the City of Lake Worth, Florida. Late that morning, police identified the victim as a male individual named Lynn Lizer. The police had been informed that the body was dismembered with an instrument “not unlike an ax.” The Lake Worth Police determined Lizer’s address to be in the City of West Palm Beach and proceeded there in midaft-ernoon. The immediate purpose of this visit was the determination of next of kin of the deceased and the securing of the premises to protect decedent’s valuables and property. The mailbox at the address contained only Lynn Lizer’s name. His residence was in one of several apartments behind a T.V. store. Lake Worth Police had notified West Palm Beach Police to meet them. The West Palm Beach Police went to the address and seeing no Lake Worth Police, went into the T.V. store. The owner of the T.V. store identified Lynn Lizer as one of her tenants and upon questioning indicated she was unsure whether Lizer had a roommate but thought he had in the past.

In the meantime, the Lake Worth Police had gone directly to Lizer’s apartment. They knocked on the door and defendant, David Scott Clark, answered. The police asked whether they could come in and Clark responded, “I don’t know if you can or not.” At approximately this time the West Palm Beach Police who had been in the T.V. store arrived at the apartment and stated the landlady had been unaware that anyone was supposed to be there. Clark informed the police he was Lizer’s roommate, had been there three weeks, and paid $75 rent. The officers told Clark they were investigating the murder of Lynn Lizer and wanted to come in the apartment for the purpose of determining Lizer’s next of kin to inform them of the death. Clark exhibited no emotion at being informed of his roommate’s death and dismemberment. Clark then stated, “I guess you can come in.”

The officers entered and inquired as to the possible location of information regarding next of kin. At the same time they observed an ax and cutting tools on the living room floor. The ax handle had been recently painted red and red spray paint was observed on the rug near decedent Liz-er’s bedroom. Clark advised the officers he used the tools in his tree trimming business. One of the officers seized the ax and cutting tools as evidence. The police searched through decedent’s bedroom for information regarding next of kin and discovered several letters from relatives. The police did not search defendant Scott’s bedroom nor any other portion of the apartment. A short time later, the decision was made to seal the apartment. Later the same day, Clark’s jeep was searched pursuant to a written consent signed by him and a yellow bucket seized.

On December 28, two days later, the yellow bucket seized from defendant’s jeep was found to contain traces of human blood. The blood type was consistent with decedent’s. Later that day, defendant called the Assistant State Attorney in charge of the case for permission to re-enter the apartment for personal reasons. The State Attorney (Ann Vitunac) agreed and asked if defendant would sign a consent to search form for the apartment and another for the jeep. Defendant subsequently signed the written consents. Shortly after going to the apartment, defendant also signed a consent to furnish blood, hair and saliva samples. He accompanied police to the crime lab where he was met by Assistant State Attorney Vitunac. After giving the samples, defendant spoke with Vitunac at the crime lab and made certain statements which were the subject of the later suppression order. Defendant was not read his Miranda rights but was not at this time under arrest. All indications are that he was free to leave and not in custody nor subjected to coercive influences. Vitunac noticed a cut on defendant’s leg. She asked how this happened and he stated he had cut himself with his machete. He then agreed to let police test the machete for blood. She also asked him how the yellow pail had gotten into his jeep and he stated he put it there to take his laundry to the laundromat.

Defendant made another statement to police which was alleged to be with consent and in compliance with Miranda. Two more searches of the apartment took place, again allegedly pursuant to written consent. The defendant’s jeep was impounded and searched.

Defendant was arrested January 1, 1979, and an indictment for First Degree Murder returned on January 17. Defendant subsequently filed a motion to suppress all evidence obtained by police. After hearing, the trial court granted the motion to suppress as to the ax and testimony concerning the ax, including results of a blood test performed on it. The trial court also suppressed defendant’s statements to Attorney Vitunac at the crime lab. All other portions of the motion were denied other than suppression of a certain statement made by defendant in jail which the State does not appeal.

The State here appeals the suppression of the ax, testimony concerning the ax and tests performed on the ax. The State also appeals the suppression of statements made to the State Attorney at the crime lab. Defendant cross-appeals those portions of the order denying the motion.

We deal initially with the defendant’s cross-appeal. The State has moved to dismiss the cross-appeal. We conclude we are without jurisdiction and grant the motion. Review of non-final orders in criminal cases is limited by Florida Rule of Appellate Procedure 9.130(a)(2) to those prescribed by Rule 9.140. Rule 9.140(c)(1)(B) in turn authorizes appeal by the State from an order suppressing before trial confessions, admissions or evidence obtained by search and seizure. Rule 9.140(b)(1) provides that a defendant may appeal from final judgments. Defendant thus may appeal denial of a motion to suppress after final judgment assuming it is properly preserved at trial. The Rules do not provide for appeals by defendant from pre-trial orders denying a motion to suppress. Defendant argues that once the State has appealed a pre-trial order of suppression this opens the way for a cross-appeal by defendant of any unfavorable portion of the order. We find no authority directly answering this question.

Defendant argues it is more efficient to determine all suppression issues in a single appeal before trial. This is not necessarily so and in any event would not confer jurisdiction. The trial court may decide to exclude the evidence at trial despite its previous order denying suppression. Alternatively defendant may be acquitted despite admission of the evidence at trial, thus dispensing with any appeal. Obviously, the State must be able to appeal the suppression of evidence before trial because double jeopardy would prevent any effective appeal by the State after final judgment. Defendant, of course, may appeal after judgment all prejudicial error. We therefore hold defendant may not cross-appeal unfavorable rulings in a pre-trial suppression order. The cross-appeal is dismissed and we specifically do not pass on the merits of any portion of the order denying defendant’s motion to suppress.

THE AX

We now deal with the issues raised by the State’s appeal. The trial court suppressed the ax found in Lynn Lizer’s apartment and further suppressed all testimony relating to the ax. We reverse this ruling. The trial court found the initial police intrusion into the decedent’s apartment reasonable and proper for two reasons. First, the sealing of a decedent’s premises as a measure to protect his property was viewed as sensible. Second, it was deemed legitimate to seal the premises pending application for a search warrant. The trial court suppressed the ax finding its seizure not consistent with either of the two stated purposes. We are unaware of any principle requiring suppression of evidence for inconsistency. We do, however, agree that the entry of police into decedent’s apartment was proper and find two additional reasons for that conclusion.

First, the record indicates defendant consented to the entry. Second, it seems reasonable for police to seek entry into decedent’s premises to obtain information regarding next of kin. Therefore, once the police were properly inside the apartment the real issue reduced to whether the seizure of the ax was proper under the plain view doctrine. This is unlike the seizure of contraband such as drugs and firearms. While contraband in plain view may be immediately seized because of its nature, items innocent by themselves require probable cause that the item is incriminating evidence. State v. Redding, 362 So.2d 170 (Fla. 2d DCA 1978). Under the circumstances we find such probable cause present in the facts known to the officers at the time of the initial seizure. They observed an ax on the floor of decedent’s residence with a recently painted handle and red paint on the rug nearby. The victim had been dismembered by an ax or some similar weapon. Further, defendant’s presence at the apartment was unexpected and he exhibited no emotion when informed of the murder and dismemberment of his roommate. Under the totality of the circumstances, we conclude the police had probable cause to seize the ax. The many complex and technical judicial applications of the Fourth Amendment of the United States Constitution and Article I, Section 12, of the Constitution of Florida must not obscure that only “unreasonable searches and seizures” are proscribed. Here, seizure of the ax in plain view was dictated by common sense and probable cause and no constitutional protection of defendant was violated. State v. Ashby, 245 So.2d 225 (Fla.1971).

In reversing the suppression of the ax, we also reverse the suppression of testimony concerning the ax and a lab test on the ax. The trial court expressed concern that the jury might be confused if the ax was referred to in testimony or lab reports when the ax itself was suppressed. This concern does not now apply in view of our reversal of the suppression of the ax. We specifically do not rule upon any other challenges that might be made at trial to the admissibility of this latter evidence.

STATEMENTS TO ATTORNEY VITUNAC

The State also appeals the suppression of certain statements made by defendant to Assistant State Attorney Yitunac. These statements concerned the yellow bucket found in his jeep and the cut on defendant’s leg which he attributed to his machete. The statements were suppressed because the Assistant State Attorney did not advise Clark of his Miranda rights.

The State relies upon Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977), for reversal and we agree. Mathiason holds that Miranda warnings need not be given where a person voluntarily appears at the police station, makes a statement and is afterwards free to leave. The warning requirements of Miranda are limited to a suspect actually in custody; neither questioning in the police station nor a coercive atmosphere bring about the requirements of Miranda if the person is not actually in custody and is in fact free to leave. Neither must the police warn a questioned person simply because he is one whom the police suspect. Mathiason strictly limits Miranda to those instances where a person’s freedom has been restricted such as to render him in custody.

The evidence presented at the motion to suppress indicates defendant came to the police station voluntarily, talked freely to the Assistant State Attorney, was not under arrest and was free to leave when he wished. The trial court also found an absence of coercive or overbearing conduct by the police. We, therefore, conclude that Clark was not in custody and that under Mathiason, Miranda warnings need not have been given. The portion of the order suppressing these statements is, therefore, reversed.

The case is remanded to the trial court for further proceedings. All applications for review of bail pending before this Court are denied.

REVERSED AND REMANDED.

ANSTEAD and HERSEY, JJ., concur.

      . The trial court found defendant was an alert and intelligent person and that he executed all search consents with full understanding. The court specifically found that no coercive tactics were exerted by police.

      . There is no evidence that the police intentionally refrained from taking defendant into custody so as to elicit statements from him without his being aware of his Miranda rights.

      . The defendant has filed various requests for review of bail before this Court and before the Florida Supreme Court while jurisdiction was temporarily before that Court.


text:
    Nancy STEPHAN, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY and State Farm Mutual Automobile Insurance Company, Appellees.
    No. 80-5.
    District Court of Appeal of Florida, Second District.
    May 21, 1980.
    Rehearing Denied June 20, 1980.

      W. Cort Frohlich of Wotitzky, Wotitzky, Wotitzky, Mandell, Batsel & Wilkins, Punta Gorda, for appellant.
    M. Joseph Lieb, Jr. of Crabtree, Butler, Syprett & Meshad, P. A., Sarasota, for ap-pellee, State Farm Mut. Auto. Ins. Co.
   PER CURIAM.

Nancy Stephan, the plaintiff below, appeals from a summary judgment entered in favor of defendant State Farm Mutual Automobile Insurance Company. Stephan contends that the trial court erred in awarding State Farm a summary judgment under Section 627.4132, Florida Statutes (1977), the antistacking statute. We agree and reverse.

Stephan was a passenger in a car owned or leased by her husband’s employer. That car was struck by an uninsured automobile resulting in injuries to Stephan. The vehicle in which Stephan was riding was insured by United States Fidelity and Guaranty Company. The U.S.F. & G. policy included uninsured motorist coverage. Stephan was also a named insured under four separate policies of insurance issued by State Farm, each of which included uninsured motorist protection. State Farm, however, declined coverage under any of the four policies contending that Section 627.4132 prohibited Stephan from “stacking” the uninsured motorist coverage of the State Farm policies upon the uninsured motorist coverage of the U.S.F. & G. policy.

In Cox v. State Farm Mutual Automobile Insurance Company, 378 So.2d 330 (Fla.2d DCA 1980) we held that Section 627.4132 does not apply to situations in which an injured plaintiff attempts to combine uninsured motorist coverage from two separate policies when the two policies have different named insureds. In the present case, Stephan was a named insured under all four State Farm policies; accordingly, she is entitled to recovery under only one of those four policies, assuming of course that State Farm has no other defenses to present. This coverage shall be in addition to any recovery under the U.S.F. & G. policy since Stephan was not a named insured under that policy.

The summary judgment in favor of State Farm is reversed and this case is remanded for further proceedings consistent with this opinion.

HOBSON, Acting C. J., and RYDER and DANAHY, JJ., concur.