author: ADKINS, Justice. EHRLICH, Judge,

text:
    Dorman K. KIMBRELL, Jr., and Earlene M. Kimbrell, his wife, Petitioners, v. Phillip PAIGE, et al., Respondents.
    No. 63171.
    Supreme Court of Florida.
    April 5, 1984.
    Schuler & Wilkerson, P.A., and Edna L. Caruso, West Palm Beach, for petitioners.
    Samuel Tyler Hill of Hill & Neale, Fort Lauderdale, Frank W. Weathers of Weathers & Seaman, Lantana, for respondents.
   ADKINS, Justice.

This cause is before us on a question certified to the Court by the Fourth District Court of Appeal in Kimbrell v. Paige, 422 So.2d 902, 905 (Fla. 4th DCA 1982), as one of great public importance. The question is:

Does Section 440.39(4), Florida Statutes (1981), bar a separate suit against a third party tort-feasor by an injured employee when such suit is filed more than one year after the cause of action accrued and the compensation carrier, in the second year following the accident, gave the thirty day notice of its intention to seek subrogation and filed an appropriate suit against the third party tort-feasor?

We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Section 440.39(4-6), Florida Statutes (1981), reads:

(4)(a) If the injured employee or his dependents, as the case may be, fail to bring suit against such third-party tort-feasor within 1 year after the cause of action thereof shall have accrued, the employer, if a self-insurer, and if not, the insurance carrier, may, after giving 30 days’ notice to the injured employee or his dependents and the injured employee’s attorney, if represented by counsel, institute suit against such third-party tortfeasor, either in his own name or as provided by subsection (3), and, in the event suit is so instituted, shall be subro-gated to and entitled to retain from any judgment recovered against, or settlement made with, such third party, the following: All amounts paid as compensation and medical benefits under the provisions of this law and the present value of all future compensation benefits payable, to be reduced to its present value, and to be retained as a trust fund from which future payments of compensation are to be made, together with all court costs, including attorney’s fees expended in the prosecution of such suit, to be prorated as provided by subsection (3). The remainder of the moneys derived from such judgment or settlement shall be paid to the employee or his dependents, as the case may be.
(b) If the carrier or employer does not bring suit within 2 years following the accrual of the cause of action against a third-party tortfeasor, the right of action shall revert to the employee or, in the case of his death, those entitled by law to sue, and in such event the provisions of subsection (3) shall apply.
(5) In all cases under subsection (4) involving third-party tortfeasors, where compensation benefits under this law are paid, or are to be paid, settlement either before or after suit is instituted shall not be made except upon agreement of the injured employee or his dependents and the employer or his insurance carrier, as the case may be.
(6) Any amounts recovered un/Ier this section by the employer or his insurance carrier shall be credited against the loss-experience of said employer.

The district court concluded that the language of the statute contemplates the filing of only one suit against the third-party tortfeasor. 422 So.2d at 903 (citing Maryland Casualty Co. v. Simmons, 193 So.2d 446, 449 (Fla. 2d DCA 1966)). The petitioners contend that the language of the statute does not prevent them from filing a separate action against the tortfeasor in spite of the fact that his compensation carrier has filed suit against the tortfeasor and his given him notice in accordance with section 440.39.

The facts of this case show that the petitioner, Dorman Kimbrell, was injured in an automobile accident in the course of his employment. His compensation carrier paid him disability and medical benefits. Over a year after the accident had occurred, the carrier gave notice to petitioners’ attorney and filed suit against the tort-feasors. While this suit was pending, petitioners Dorman Kimbrell and his wife, Earlene Kimbrell, filed suit. The defendants in petitioners’ common law action filed a motion to dismiss in the trial court alleging that the judgment obtained in the carrier’s suit barred petitioners’ claim. The trial court entered an order dismissing the suit with prejudice and the appeal to the district court followed. The Fourth District Court of Appeal affirmed the trial court’s decision.

When an employee is injured while in the course of his employment and he later accepts compensation benefits, the compensation carrier becomes subrogated to the rights of the employee against the tort-feasor to the amount of the benefits paid. § 440.39(2), Fla.Stat. (1981). The statute gives the carrier the right to institute an action against the third-party tortfeasor if the employee does not institute an action during the first year after the accrual of the cause of action. § 440.39(4)(a); Jersey Insurance Co. v. Cuttriss, 220 So.2d 15 (Fla. 3d DCA 1969). If the employee does not bring suit within the first year, the insurance carrier can file suit after giving the required thirty-day notice to the employee (or his dependents) and the employee’s attorney. § 440.39(4)(a). It is clear that the right to institute suit is concurrent during the second year after the accrual of the cause of action, but if the carrier does file suit first, we believe that the only sensible interpretation of the intent of the statute is that it precludes the employee from also being able to maintain suit at that time. Accord Cuttriss; Maryland Casualty Co. v. Simmons, 193 So.2d 446 (Fla. 2d DCA 1966); Zurich Insurance Co. v. Renton, 189 So.2d 492 (Fla. 2d DCA 1966), cert. denied, 200 So.2d 815 (Fla.1967). We agree with the presumption made by our Second District Court of Appeal in Zurich Insurance Co. v. Renton. That court discussed the legislative intent in allowing the compensation carrier to file an action during the second year after the accident and stated: “[I]t is to be presumed that this was intended by the legislature as a matter of policy, thus to hasten the disposition of third party litigation.” 189 So.2d at 494 (citing General Insurance Co. v. Moore, 143 So.2d 541 (Fla. 2d DCA 1962).

This Court recognized that only one suit against an alleged tortfeasor is contemplated by section 440.39 in the case of Aetna Casualty and Surety Co. v. Bortz, 271 So.2d 108 (Fla.1972). As was indicated by the Fourth District below, Bortz is not factually on all fours with the instant case. Nonetheless, the basic premise underlying Bortz is that the statute does not permit more than one suit to be brought for the claim of an injured worker against a tort-feasor.

The decision below contains an excerpt from Bortz. The excerpt emphasizes that the ultimate governance of the cause is within the province of the employer when suit is brought under subsection (4)(a). Cooperation by the claimant is expected since the employer is initiating the action for the claimant’s ultimate use and benefit under the statute. 422 So.2d at 905, citing 271 So.2d at 114.

In Bortz this Court examined the history of statutory schemes of subrogation and workers’ compensation claims. We stated:

The consequences of these successive revisions cannot be ignored. They represent a continuing legislative endeavor to balance respective interests in a manner consistent with the underlying theory that a double recovery should be avoided without extending tort immunity to strangers outside of the employer-employee relationship.

271 So.2d at 113. This conclusion is important in the context of the instant case. If the petitioners’ position were adopted by this Court, the consequence would be that a double recovery would be likely to result. In the present case the carrier has already obtained a judgment for the amount of its expenditures for medical, loss of wages and loss of wage earning capacity. These same items are claimed in petitioners’ suit. Since the payments to petitioner under workers’ compensation cannot be revealed to the trier of the facts, a double recovery is almost certain to occur. See § 627.-7372(3), Fla.Stat. (1981).

As Bortz points out, it was the legislative intent to provide an inducement for the injured worker to initiate his own speedy remedy against the third party by filing suit within one year. If he failed to do so, the employer was then allowed to protect his interests by filing suit after the first year. 271 So.2d at 112-13. . It is obvious that if the petitioners’ contentions were to be adopted by us, the legislative purpose of the statute as previously determined by this Court would be entirely frustrated.

We believe our holding today is also consistent with principles of res judicata. From Wade v. Clower, 94 Fla. 817, 114 So. 548 (1927), to the present, Florida courts have consistently adhered to the rule that:

A judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action.

Id. at 829,114 So. at 552 (citations omitted). See also In re Haskin’s Estate, 63 So.2d 320 (Fla.1953); Knabb v. Duner, 143 Fla. 92, 196 So. 456 (1940); Pumo v. Pumo, 405 So.2d 224 (Fla. 3d DCA 1981), review denied, 412 So.2d 469 (Fla.1982).

Accordingly, we approve the decision of the Fourth District Court of Appeal and answer the certified question in the affirmative.

It is so ordered.

ALDERMAN, C.J., and BOYD, OYER-TON, McDonald and SHAW, JJ., concur.

EHRLICH, J., concurs in part and dissents in part with an opinion.

EHRLICH, Judge,

concurring in part and dissenting in part.

I concur in the result reached by the majority, but I disagree on two major issues — the claimant’s right to bring suit in the second year after the cause of action accrues and the effect of the dismissal of claimant’s action on his wife’s cause of action for loss of consortium.

Section 440.39(4)(b) provides “[i]f the carrier or employer does not bring suit within 2 years following the accrual of the cause of action against the third-party tortfeasor, the right of action shall revert to the employee.” (Emphasis supplied.) If the right of action “reverts” to the employee during the second year, it simply means that he did not have such right of action during the second year. For this reason, I think the opinion of the majority is not correct in saying that the right to institute suit is concurrent during the second year after the accrual of the cause of action.

Furthermore,' the right of the employer or the carrier to bring suit during the second year after the accrual of the cause of action carries with it the duty to deal fairly with the interests of the employee. This Court has previously recognized that in bringing the suit the carrier “is initiating action for the claimant’s ultimate use and benefit under a statutory grant of power,” Aetna Casualty & Surety Co. v. Burtz, 271 So.2d 108, 114 (Fla.1972). This means that if the carrier files suit, then it must make claim for all the damages to which the injured employee is entitled, i.e'., medical expenses, loss of earnings, permanent disability, pain and suffering, because the employee is precluded from maintaining the action thereafter.

There is a distinct monetary advantage to the carrier to maintain the action. It can recover all amounts paid as compensation and medical benefits and the present value of all future compensation benefits, to be held in a trust fund from which future payments of compensation are to be made, together with court costs and attorney’s fees. While the compensation act does not spell out what damages the carrier may claim in the event it brings suit during the second year, the act mandates that the remainder of the monies derived from the suit, after the carrier has deducted the sums to which it is entitled, shall be paid to the employee or his dependents, as the case may be. There can only be a “remainder” if the carrier claims damages over and above that which it recovers for itself and I conclude that it is implicit from this statutory language that all elements of damages must be included in the claim asserted by the carrier.

In the instant case, the carrier limited its claim to the disability and medical benefits furnished to the employee, and the final judgment entered in behalf of the carrier effectively precluded the employee from ever making claim for the other damages sustained by him to which he would otherwise be entitled. This was an egregious breach of the good faith and fair dealing the carrier owed to the employee, and the carrier, because of this willful failure to make claim for all damages to which the claimant may be entitled, should be liable for those elements of damage the claimant forfeited as a result of the carrier’s failure to protect his interest.

The second issue which concerns me is the dismissal with prejudice of the claimant’s wife’s suit against the tortfeasor. Although the majority refuses to address the issue as not before us, this ignores the Court’s discretion to address all issues pertinent to the decision. See, e.g., Sanchez v. Wimpy, 409 So.2d 20 (Fla.1982); Zirn v. Charles Pfizer & Co., 128 So.2d 594 (Fla.1961). The wife has a derivative cause of action for damages for loss of consortium and services growing out of her husband’s injury. Gates v. Foley, 247 So.2d 40 (Fla.1971). Her claim, which is not governed by the workers’ compensation act, was nonetheless dismissed along with the claim of her husband, the employee. The carrier litigated the issue of liability in the husband’s stead. Burtz. The wife’s claim would not have been barred had her husband brought suit, Scudder v. Seaboard Coast Line Railroad, 247 So.2d 46 (Fla.1971), thus the carrier’s suit cannot preclude her cause of action. The trial court’s dismissal of her claim, affirmed by the district court of appeal, is clearly erroneous. While I agree that the husband’s claim is barred, the wife’s claim is not, and I would disapprove the district court of appeal’s affirmance of the dismissal of the wife’s claim, and would remand with instruction to set aside such dismissal.

      . We will not address the issue of any claim of loss of consortium on the part of Earlene Kimb-rell inasmuch as that issue is not before us.


source: Caselaw Access Project

author: OVERTON, Justice.

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Learnhart RHODEN, Respondent.
    No. 62918.
    Supreme Court of Florida.
    April 5, 1984.

      Jim Smith, Atty. Gen., David T. Weisbrod and Robert J. Krauss, Asst. Attys. Gen., Tampa, for petitioner.
    Jack D. Hoogewind, Ridge Manor, for respondent.
   OVERTON, Justice.

This is a petition to review a decision of the Second District Court of Appeal reported as Rhoden v. State, 421 So.2d 780 (Fla. 2d DCA 1982), which directly conflicts with Glenn v. State, 411 So.2d 1367 (Fla. 5th DCA 1982); Burley v. State, 402 So.2d 73 (Fla. 5th DCA 1981); and Dunman v. State, 400 So.2d 838 (Fla. 5th DCA 1981). We have jurisdiction, article V, section 3(b)(3), Florida Constitution. This cause concerns the trial court’s sentencing of the juvenile respondent as an adult without complying with section 39.111(6), Florida Statutes (1981), which mandates that, when sentencing a juvenile as an adult, the trial court must explain in writing why adult sanctions are appropriate. In the instant case, the district court reversed the trial court’s sentencing of the juvenile respondent as an adult and remanded for resen-tencing in compliance with the statute. For the reasons expressed below, we approve the district court’s decision.

The respondent was initially charged as a juvenile for the offense of discharging a destructive device. At the time of the offense, the respondent was seventeen years old. He was tried as an adult, however, and was convicted and sentenced to a mandatory ten-year term pursuant to section 790.161(3), Florida Statutes (1981). At sentencing, the trial judge failed to address the six criteria pertaining to the suitability or unsuitability of adult sanctions contained in section 39.111(6)(e) and failed to place in writing his findings and reasons for sentencing the respondent as an adult, as required in section 39.111(6)(d). Section 39.111(6)(c) directs that the “[sjuitability or nonsuitability for adult sanctions shall be determined by the court before any other determination of disposition_[and] shall be made by reference to” six specified criteria. Subsection (6)(d) further directs that “[a]ny decision to impose adult sanctions shall be in writing, and it shall be in conformity with each of the above criteria. The court shall render a specific finding of fact and the reasons for the decision to impose adult sanctions. Such order shall be reviewable on appeal by the child pursuant to s. 39.14.” Although the respondent’s counsel requested that the trial court give his client youthful offender status, he did not expressly request that the trial judge comply with section 39.111(6). Further, after the respondent’s sentence was announced, counsel did not object to the trial judge’s failure to place in writing his findings and reasons for imposing adult sanctions on the respondent.

On appeal, the district court reversed and remanded for resentencing, holding “the disposition procedures under section 39.-111(6) are mandatory and necessitate a reversal regardless of whether appellant [respondent here] raised an objection in the trial court.” 421 So.2d at 781. In its opinion, the district court acknowledged conflict with the Fifth District Court of Appeal’s decisions in Burley v. State, 402 So.2d 73 (Fla. 5th DCA 1981), and Dunman v. State, 400 So.2d 838 (Fla. 5th DCA 1981). The district court’s decision is supported by Sawyer v. State, 421 So.2d 4 (Fla. 3d DCA 1982); Leach v. State, 407 So.2d 1066 (Fla. 2d DCA 1981); Batch v. State, 405 So.2d 302 (Fla. 4th DCA 1981); Proctor v. State, 373 So.2d 450 (Fla. 2d DCA 1979); and Johnson v. State, 371 So.2d 556 (Fla. 2d DCA 1979).

The state contends that the issue is whether the trial court’s noncompliance with the provisions of section 39.111(6) is fundamental error. The state argues that the Fifth District Court of Appeal’s decisions in Burley, Dunman, and Glenn v. State, 411 So.2d 1367 (Fla. 5th DCA 1982), are correct in holding that a trial court’s noncompliance with section 39.111(6) is not fundamental error but is instead procedural error which must be objected to in order for a defendant to preserve the point for appeal. The state asserts that because the respondent did not object to the trial court’s failure to follow the statute in this case, respondent could not raise the point for the first time on appeal. The state, while recognizing that under chapter 39, Florida Statutes, the legislature has given youthful offenders the right to be treated as juveniles, asserts that the right to be treated as a juvenile is not so fundamental that it obviates a need for an objection when the trial court fails to comply with certain provisions of chapter 39. Further, the state asserts that the failure to object is a waiver of the right for purposes of appeal and in any post-conviction proceeding. We reject these arguments.

In deciding a related issue in State v. Cain, 381 So.2d 1361, 1367 (Fla. 1980), we said that “[t]he [trial] court must follow the procedure provided in subsection 39.111(6), Florida Statutes (Supp.1978), and must consider the criteria enumerated in subsection 39.111(6)(c)l-6 which in substantial part mirror the criteria the court is to consider in waiving juvenile jurisdiction in the first place. See § 39.09(2)(c)l-8 Fla.Stat. (Supp. 1978).” Further, as noted above, section 39.111(6)(d) requires that a decision to impose adult sanctions must be in writing. Finally, in section 39.111(6)(j), the legislature emphasized its purpose by stating that “[i]t is the intent of the Legislature that the foregoing criteria and guidelines shall be deemed mandatory and that a determination of disposition pursuant to this subsection is subject to the right of the child to appellate review pursuant to s. 39.14.” (Emphasis added.) It is abundantly clear that the purpose of this legislation requiring the trial court to place in writing its findings of fact and reasons for imposing an adult sentence on a juvenile is to facilitate an intelligent appellate review of such a sentence. See G.D. W. v. State, 395 So.2d 638 (Fla. 2d DCA 1981).

Further, with regard to the respondent’s failure to contemporaneously object to the trial judge’s failure to follow the statute in sentencing respondent, we agree with the reasoning of Judge Sharp in her dissent in Glenn v. State. Judge Sharp pointed out that it is difficult, if not impossible, for counsel to contemporaneously object to the absence of a written order at the sentencing hearing “since counsel at that stage does not know for sure what the written sentence may be, and a written order pursuant to section 39.111 may indeed be subsequently filed.” 411 So.2d at 1368. The contemporaneous objection rule, which the state seeks to apply here to prevent respondent from seeking review of his sentence, was fashioned primarily for use in trial proceedings. The rule is intended to give trial judges an opportunity to address objections made by counsel in trial proceedings and correct errors. See Simpson v. State, 418 So.2d 984 (Fla.1982), cert. denied, 459 U.S. 1156, 103 S.Ct. 801, 74 L.Ed.2d 1004 (1983); State v. Cumbie, 380 So.2d 1031 (Fla.1980); Clark v. State, 363 So.2d 331 (Fla.1978). The rule-prohibits trial counsel from deliberately allowing known errors to go uncorrected as a defense tactic and as a hedge to provide a defendant with a second trial if the first trial decision is adverse to the defendant. The primary purpose of the contemporaneous objection rule is to ensure that objections are made when the recollections of witnesses are freshest and not years later in a subsequent trial or a post-conviction relief proceeding. The purpose for the contemporaneous objection rule is not present in the sentencing process because any error can be corrected by a simple remand to the sentencing judge. If the state’s argument is followed to its logical end, a defendant could be sentenced to a term of years greater than the legislature mandated and, if no objection was made at the time of sentencing, the defendant could not appeal the illegal sentence.

The juvenile justice statutory scheme, as adopted by the Florida Legislature, grants to juveniles the right to be treated differently from adults. The legislature has emphatically mandated that trial judges not only consider the specific statutory criteria pertaining to the suitability of adult sanctions, but that they also reduce to writing their findings of fact and reasons for imposing an adult sentence on a juvenile. A written order is necessary in order to make effective the right of sentence review granted to juveniles by the legislature. See section 39.14, Florida Statutes (1981). This right of sentence review is not provided to adults. There is absolutely nothing in this record to show that the respondent waived his rights to these matters.

The legislature mandated that trial judges consider the statutory criteria in order to protect the rights which the legislature has given to juveniles. Trial courts cannot avoid that mandate absent an intelligent and knowing waiver of that right by a juvenile.

We hold that the provisions of section 39.111(6) must be followed by a trial judge in sentencing a juvenile as an adult, and the failure to do so requires a remand for resentencing.

For the reasons expressed, we approve the decision of the district court and we agree with the dissent of Judge Sharp in Glenn v. State. We disapprove the decisions of the Fifth District Court of Appeal in Glenn v. State, Burley v. State, and Dunman v. State.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, MCDONALD, EHRLICH and SHAW, JJ., concur.

       The six criteria set out in section 39.11 l(6)(c) are:
      1. The seriousness of the offense to the community and whether the protection of the community requires adult disposition.
      2. Whether the offense was committed in an aggressive, violent, premeditated, or willful manner.
      3. Whether the offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted.
      4. The sophistication and maturity of the child, as determined by consideration of his home, environmental situation, emotional attitude, and pattern of living. 5. The record and previous history of the child, including:
      a. Previous contacts with the department, the Department of Corrections, other law enforcement agencies, and courts,
      b. Prior periods of probation or community control,
      c. Prior adjudications that the child committed a violation of law, and
      d. Prior commitments to institutions.
      6. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the child if he is assigned to juvenile services and facilities.


author: PER CURIAM. BOYD, Justice,

text:
    THE FLORIDA BAR, Complainant, v. Claude M. HARDEN, Jr., Respondent.
    Nos. 59630, 60151.
    Supreme Court of Florida.
    April 12, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and David G. McGunegle, Bar Counsel, Orlando, for complainant.
    Robert G. Stokes, Bartow, for respondent.
   PER CURIAM.

The Florida Bar filed two complaints against respondent, Claude M. Harden, Jr., a member of The Florida Bar. At the final hearing, no opposition was offered to the Bar’s allegations, totaling eleven counts. The referee recommended that respondent be found guilty as to each count. The referee found that respondent was guilty of violating the following provisions under the Florida Bar Integration Rule, article XI: Rule 11.02(3)(a) for acts contrary to honesty, justice, and good morals (nine instances); Rule 11.02(4) for misusing trust funds (ten instances); and Rule 11.02(4)(c) and the corresponding bylaw for improper trust accounting (one instance). The referee also found violations of the following disciplinary rules of the Florida Bar Code of Professional Responsibility: D.R. 1-102(A)(3) for illegal conduct involving moral turpitude (six instances); D.R. 1-102(A)(4) for conduct involving dishonesty, fraud, deceit, or misrepresentation (ten instances); D.R. 1-102(A)(5) for engaging in conduct prejudicial to the administration of justice (one instance); D.R. 7-101(A)(2) for intentionally failing to carry out a contract of employment (four instances); D.R. 6-102(A)(3)[6-101(A)(3) ] for neglecting a legal matter entrusted to him (one instance); D.R. 7-101(A)(3) for intentionally prejudicing or damaging his clients (three instances); D.R. 9-102(A) for commingling clients’ funds (five instances); D.R. 9-102(B)(3) for failing to maintain complete records and render appropriate accounts of clients’ funds (three instances); and D.R. 9-102(B)(4) for failure to pay promptly or deliver clients’ funds upon entitlement and request (six instances). Respondent, whose parents have made restitution to all known clients, has been under temporary suspension from the practice of law since September of 1980.

The referee recommended that respondent be suspended from the practice of law. for a period of three years and thereafter until proof of rehabilitation; that he not work in any law office during the suspension period; that he be required to make restitution; that he be placed on two years’ probation following reinstatement with a future requirement that there be a monthly reconciliation of his trust account; and that he be required to retake and pass the Florida Bar Examination at the end of the three-year suspension period as part of his proof of rehabilitation.

The Board of Governors of The Florida Bar approved the referee’s findings of fact and recommendations of guilt, but petitioned for review of the referee’s recommended discipline. The Bar contends that the recommended discipline is not appropriately severe in light of the multiple instances of misuse of trust funds. We agree. We adopt the referee’s recommendations of guilt, but grant the Bar’s requested discipline of disbarment. Claude M. Harden, Jr. is hereby disbarred from the practice of law, effective immediately. Costs in the amount of $1,219.03 are taxed against Harden.

It is so ordered.

ALDERMAN, C.J., and OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur.

BOYD, J., concurs in part and dissents in part with an opinion, in which ADKINS, J., concurs.

BOYD, Justice,

concurring specially.

Normally I would agree with the majority and with the Board of Governors that the misconduct of respondent merits disbarment. However, I think it is our duty to take into consideration the fact that the funds provided by respondent’s parents were used to repay all persons from whom he improperly took money.

It is my view that the public interests of this state would be better served if lawyers who have returned funds improperly taken from their clients were given less harsh penalties than those who steal and retain such funds. Under such conditions suspension instead of disbarment will encourage dishonest attorneys to make their clients whole as a means of reducing discipline.

Since respondent will be required to prove rehabilitation before resuming the practice of law adoption of the referee’s recommended discipline would not assure his return to the practice of law. I concur in the finding of guilt, but instead of disbarment I would favor suspension as recommended by the referee.

ADKINS, J., concurs.


author: PER CURIAM. ALDERMAN, Chief Justice, EHRLICH, Judge,

text:
    THE FLORIDA BAR, Complainant, v. Alex P. LANCASTER, Respondent.
    No. 60850.
    Supreme Court of Florida.
    April 12, 1984.
    Alderman, C.J. and Ehrlich, J., concurred in part and dissented in part with opinions in which Overton, J., joined.
    Overton, J., concurred except as to discipline imposed.

      John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Patricia J. Brown, Branch Staff Counsel, Tampa, for complainant.
    Richard T. Earle, Jr., of Earle & Earle, St. Petersburg, and Robert Jackson McGill of the Law Offices of ■ Robert Jackson McGill, Venice, for respondent.
   PER CURIAM.

We have for review a referee’s report recommending that Alex P. Lancaster be disbarred. We have jurisdiction pursuant to our authority to regulate the discipline of persons admitted to the practice of law in this state. Art. V, § 15, Fla. Const. We decline to adopt the referee’s recommendation and instead order that respondent be suspended from the practice of law for two years.

The Florida Bar instituted this disciplinary proceeding by filing a six-count complaint pertaining to respondent’s having had possession of a boat with an altered identification number. Counts one and two alleged that respondent had pleaded nolo contendere to the misdemeanors of altering the identification number on a boat and of possessing a boat with an altered identification number. Count three charged him with scheming to influence a witness not to appear at respondent’s trial. Count four charged him with attempting to induce another witness to testify falsely. Count five charged him with counseling a witness knowing that the witness had other counsel. Count six charged respondent with lying under oath to a state attorney about his involvement in and knowledge of the alteration of the identification number on a boat.

At the beginning of the hearing The Florida Bar stated that it was abandoning count five, and Lancaster admitted all the factual allegations in counts one and two. The Florida Bar proceeded to present evidence on the remaining counts, calling Lancaster as its only witness. Lancaster explained that his roommate had purchased the boat from Stretton Gramlich. Lancaster stated that after the boat was purchased and moved to his back yard, he saw Gramlich glue a number on the boat. He admitted that his suspicions were then aroused that there might be something wrong. He also admitted that when the state attorney began making inquiries, he lied about his knowledge of this alteration. Lancaster denied having any intention to tamper with any persons who were to be witnesses against him. In mitigation he testified that he was an active member of The Florida Bar and the Sarasota County Bar Association and that he had never before been the subject of any grievance or disciplinary matter.

During Lancaster’s testimony, the Bar sought to introduce into evidence a transcript of a conversation between Lancaster and Gramlich recorded in Lancaster’s home by a warrantless “body bug” worn by Gramlich. Lancaster objected to the admission of the transcript on the ground that- the recording was made in violation of article I, section 12 of the Florida Constitution. The referee at first sustained the objection but after the hearing reconsidered his ruling and admitted the transcript into evidence, ruling that the exclusionary rule does not apply to attorney disciplinary proceedings.

The transcript revealed that Lancaster told Gramlich that they had to stick together and keep their stories straight. In the conversation, Lancaster indirectly suggested the need to go to West Virginia to talk to the person from whom Gramlich bought the boat to find out whether that person would testify that the boat was stolen. According to the transcript Lancaster said that if that person would testify that it was his boat he sold to Gramlich then there would be no problem, but if that person turned out not to be the real owner then they would have to find a way to induce him not to come to Florida and testify.

Lancaster submitted a deposition of Gramlich for the referee to consider should he decide to admit the transcript of the recorded conversation. In the deposition Gramlich stated that he believed he bought the boat from the true owner. However, he also stated that if that did not turn out to be the case he was under the impression that Lancaster would want him to alter his story and to assist Lancaster in convincing the person from whom he bought the boat not to testify.

In defense Lancaster called two witnesses who testified about his character. One was an attorney who explained that Lancaster handled a substantial number of workers’ compensation cases for claimants who would be without assistance if Lancaster were suspended. The other witness testified that Lancaster was an active member of the Sertoma Club.

The referee issued a report recommending that Lancaster be found guilty of all six counts of the complaint despite the fact that The Florida Bar had abandoned one of the counts. Although The Florida Bar recommended that Lancaster be suspended for one year, the referee recommended that Lancaster be disbarred.

Lancaster claims that he cannot be found guilty of counts one and two because the only evidence presented in support of these two counts was the fact that he pleaded nolo contendere to two misdemeanors. He points out that adjudication of guilt on these offenses was withheld. Lancaster argues that his plea of nolo contendere was an admission of the facts alleged in the information only for purposes of that particular proceeding and could not be used as evidence in this proceeding. He. asserts that his plea of nolo contendere does not by itself constitute a violation of the Code of Professional Responsibility and that there was insufficient proof that he was guilty of the misdemeanors charged.

We disagree with these contentions. We first note that the admission of the nolo contendere plea into evidence was proper. A referee may consider evidence of an attorney’s pleading nolo contendere even though the plea may relate to charges unconnected with those being presented at the disciplinary hearing. The Florida Bar v. Stillman, 401 So.2d 1306 (Fla.1981). An attorney’s pleading nolo contendere to a misdemeanor is relevant to his fitness to practice law. See The Florida Bar v. Agar, 394 So.2d 405 (Fla.1980).

As for Lancaster’s argument that the evidence was insufficient, this Court has previously held that a nolo contendere

plea along with an adjudication of guilt is sufficient to sustain disciplinary action. See The Florida Bar v. Brown, 377 So.2d 1176 (Fla.1979); The Florida Bar v. Duffee, 343 So.2d 829 (Fla.1977); The Florida Bar v. Silver, 313 So.2d 688 (FIa.197,5); State ex rel. Florida Bar v. Evans, 94 So.2d 730 (Fla.1957). In Evans this Court stated that

in a disbarment proceeding based on conviction of a crime, the proof of conviction and an adjudication of guilt are sufficient to establish a prima facie case for disciplinary action. Due process, however, requires that the accused lawyer shall be given full opportunity to explain the circumstances and otherwise offer testimony in excuse or in mitigation of the penalty.

Id. at 735 (emphasis in original). This Court has also disciplined an attorney who had pleaded nolo contendere to a crime even though there had been no adjudication of guilt. The Florida Bar v. Bunch, 195 So.2d 558 (Fla.1967). This Court has also disciplined an attorney who had pleaded nolo contendere and stipulated to a ninety-day suspension. The Florida Bar v. Miller, 322 So.2d 502 (Fla.1975). Thus the important factor is not whether there has been an actual adjudication of guilt, but whether the attorney has been given a chance to explain the circumstances surrounding his plea of nolo contendere and otherwise contest the inference that he engaged in illegal conduct.

In this case Lancaster did not contest the allegations that his conduct constituted a violation of the disciplinary rules. At the hearing he did try to explain that he was not guilty of any crimes since he did not know for sure that the number he saw Gramlich affix to the boat was any different from the number that was previously there. However, he admitted that his suspicions were aroused by Gramlich’s actions and he stipulated to the allegations contained in counts one and two that his actions were in violation of Disciplinary Rules 1-102(A)(1), (3), (4), and (6). Because of this stipulation, The Florida Bar was not obligated to produce any further evidence

in support of these allegations and Lancaster was precluded from challenging them. Therefore, we find no error in the referee’s recommendation that Lancaster be found guilty of violating these disciplinary rules.

Next Lancaster argues that the referee erred by admitting into evidence the transcript of his conversation with Gramlich which was recorded by a warrantless “body bug.” Lancaster asserts that the exclusionary rule formerly embodied in article I, section 12, Florida Constitution, prohibited the use of such evidence under this Court’s holding in State v. Sarmiento, 397 So.2d 643 (Fla.1981). The Florida Bar contends that the exclusionary rule does not apply to attorney disciplinary proceedings, citing Emslie v. The State Bar of California, 11 Cal.3d 210, 520 P.2d 991, 113 Cal.Rptr. 175 (1974) and People v. Harfmann, 638 P.2d 745 (Colo. 1981).

We agree with the Bar’s argument. As was explained by the Colorado Supreme Court in People v. Harfmann, lawyer-discipline proceedings are sufficiently distinguishable from criminal proceedings to call for a different rule of law as regards the application of the exclusionary rule for evidence obtained by an unreasonable search or seizure. See also In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968). We therefore hold that the referee was not required to exclude from evidence the transcript of the conversation recorded by the use of warrantless electronic surveillance.

We find that there was sufficient evidence to support the referee’s finding that Lancaster had conspired to influence a potential witness not to testify at his trial. In his deposition Gramlich stated that Lancaster wanted him to accompany Lancaster to West Virginia to try to convince the person from whom Gramlich bought the boat to refrain from providing any information to the authorities. We therefore adopt the referee’s recommendation that Lancaster be found guilty of the charges alleged in count three, by virtue of his having planned with another to secure the absence of a material witness from a criminal proceeding.

Count four charged Lancaster with attempting to induce Gramlich to testify falsely. The referee failed to make any specific findings as to this particular allegation. Instead the referee confused the allegations of this count with those in count three and recommended Lancaster be found guilty under count four by virtue of his planning to arrange the absence of the person from whom Gramlich bought the boat. In effect then the referee doubled up these two counts and used the same factual finding to support his recommendation that Lancaster be found guilty of two separate items of misconduct. Since there is no specific finding that Lancaster attempted to induce Gramlich to testify falsely, we cannot adopt the referee’s recommendation that respondent be found guilty of the allegations contained in count four of the complaint.

Lancaster argues, and the Bar concedes, that the referee erred in recommending that Lancaster be found guilty of count five of the complaint after the Bar abandoned that count before the hearing began. We agree and therefore do not adopt the referee’s findings with respect to count five.

As for count six, Lancaster admitted to the referee that he initially lied to a state attorney about his knowledge that Gramlich had affixed an identification number to the boat and his suspicions that the boat might have been stolen. We therefore adopt the referee’s recommendation that Lancaster be found guilty of lying to a law enforcement official.

In conclusion, we find that Lancaster has failed to conform to the ethical standards binding on all attorneys. Though Lancaster’s actions did not have any detrimental effect on any of his clients, his lack of complete candor about his unwitting involvement in a suspicious activity raises questions about his fitness to practice law. However, because of his previously untarnished record and his involvement in community affairs and charitable efforts, we decline to hold that Lancaster’s conduct warrants disbarment. We therefore order that he be suspended from the practice of law for a period of two years. The suspension shall be effective May 14, 1984, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that respondent shall not accept any new business. Lancaster is also ordered to pay the costs of these proceedings in the amount of $1,123.23. Lancaster may be reinstated after two years upon payment of costs and proof of rehabilitation.

It is so ordered.

ADKINS, BOYD, McDONALD and SHAW, JJ., concur.

ALDERMAN, C.J., and EHRLICH, J., concur in part and dissent in part with opinions, in which OVERTON, J., concurs.

OVERTON, J., concurs in part and dissents in part: I concur with the majority opinion except as to the discipline imposed. I would disbar the respondent.

ALDERMAN, Chief Justice,

concurring in part, dissenting in part.

I agree with all parts of the majority opinion except for its conclusion that disbarment is not warranted. Lancaster’s misconduct in the present ease is the antithesis of the moral and ethical conduct expected from those admitted to the practice of law in this state and warrants nothing short of disbarment. He repeatedly lied under oath to a state attorney during an official criminal investigation and he attempted to thwart the administration of criminal justice by scheming to procure the absence of witnesses from a criminal prosecution. His unwillingness to tell the truth carried forward to the final hearing before the referee. The referee, in recommending disbarment, expressly considered Lancaster’s steps to rehabilitate himself and his value in the local legal community but concluded:

[T]he corruption of the system he originally swore to uphold and defend looms too large to allow him to remain on the rolls of a profession whose hallmark is supposed to be integrity. The stark truth is that even in the hearing before the referee, one brief step away from Supreme Court review, he lied in an attempt to save his license....
[T]he principles eloquently expressed in Dodd v. The Florida Bar, 118 So.2d 17 (Fla.1960), should and do have a timeless ring. That ringing can still be heard today through The Florida Bar v. Agar, 394 So.2d 405 (Fla.1980). It rings a clear message: “if you subvert the judicial system by intentionally tampering with the pursuit of truth, you will likely forfeit your license to practice law.”

I would adopt the referee’s recommendation that Lancaster be disbarred.

OVERTON, J., concurs.

EHRLICH, Judge,

concurring in part and dissenting in part.

I am disturbed by the majority’s inexplicable leniency toward one who has been found guilty of undermining the very foundation of our profession and of the system of the administration of justice.

Lancaster, an officer of the court, lied to a constitutional officer performing his legal duty to investigate criminal activity. Lancaster knowingly and willfully violated the oath he had taken before giving testimony to the state attorney; moreover, he violated the oath he took to become a member of The Florida Bar.

It is axiomatic that an applicant for admission to The Florida Bar who lies or omits the truth on the bar application is presumed unfit for admission to the legal profession in this state. See, e.g., Fla.Sup. Ct.Bar Admiss.Rule, art. VII, § 2; Fla.Bar, Exam.Rule I, § 6, Florida Board of Bar Examiners v. Lerner, 250 So.2d 852 (Fla.1971). This is justified because our profession can operate properly only if its individual members conform to the highest standard of integrity in all dealings within the legal system. How much more is this true of one already reaping the benefits of the profession, with firsthand knowledge of the inner workings of the system. An attorney who endeavors to secure the absence of a material witness from a criminal proceeding and who lies under oath to the state attorney during the course of an investigation of criminal activity, has made a mockery of all that The Florida Bar represents to both the public at large and to all of its members. He should no longer be a part of it.

I would disbar the respondent.

OVERTON, J., concurs.


text:
    CITIZENS OF the STATE of Florida, Appellants, v. PUBLIC SERVICE COMMISSION, et al., Appellees.
    Nos. 63306, 63401.
    Supreme Court of Florida.
    April 12, 1984.

      Jack Shreve, Public Counsel, and Stephen Fogel, Associate Public Counsel, Tallahassee, for appellants.
    William S. Bilenky, Gen. Counsel, and Carrie J. Hightman, Associate Gen. Counsel, Tallahassee, for Fla. Public Service Com’n.
    Matthew M. Childs of Steel, Hector & Davis, Tallahassee, for Fla. Power & Light Co.
   OVERTON, Justice.

This is a direct appeal by the Citizens of the State of Florida (Citizens) from two orders of the Florida Public Service Commission. The first order approved a project of the Florida Power & Light Company (FPL) under the Commission’s Oil-Backout Cost Recovery Factor Rule (Oil-Backout Rule). The second order approved FPL’s initial oil-backout cost recovery factor pursuant to an amended version of the rule. We have jurisdiction, article V, section 3(b)(2), Florida Constitution, and we affirm the orders of the Public Service Commission.

This case involves the Commission’s implementation of section 366.82, Florida Statutes (1981), which was enacted to reduce the dependency of Florida utilities on oil. Subsection (2) directs the Commission to “adopt appropriate goals for increasing the efficiency of energy consumption ... including goals designed to increase the conservation of expensive resources, such as petroleum fuels.” To carry out this legislative mandate, the Commission adopted the Oil-Backout Rule, Florida Administrative Code Rule 25-17.16. The purpose of the rule, which became effective on February 25, 1982, is to encourage utilities to undertake oil-backout projects. The Oil-Backout Rule encourages utilities to use fuels other than petroleum fuels by allowing utilities (1) recovery of the revenue requirements of the project through a cost recovery factor, and (2) accelerated depreciation in the amount of two-thirds of the net fuel savings associated with the project.

Under the rule as adopted, the Commission must first determine if a project qualifies for cost recovery. Although the rule requires a utility to obtain Commission approval before the construction of a proposed project, under section (3)(c) of Rule 25-17.16 the Commission may waive this prior-approval requirement. Once a project has been approved and it goes into operation, the utility may begin to recover its costs. Recovery is based on projected fuel adjustment charges for all investor-owned electric utilities on a six-month basis. Projected fuel adjustment charges are set at a hearing held two months prior to the six-month recovery period. After the six-month period, the actual costs are determined and any over-recovery is refunded to ratepayers with interest.

In 1981, before the effective date of the Oil-Backout Rule, FPL began an oil-back-out project consisting of the construction of two transmission lines starting at the Florida-Georgia border and running down the east coast of Florida. The purpose of the project was to allow FPL to receive coal-fired power from the Southern Company. On March 30, 1982, FPL filed a- petition with the Commission seeking qualification of this transmission line project under the Oil-Backout Rule. Both Citizens and the Florida Industrial Power Users Group (FI-PUG) intervened. Hearings on the qualification of the project, which began on June 17, 1982, were suspended after two days pending the disposition of a rule-making hearing in which amendments to the Oil-Backout Rule were being considered. On August 3, 1982, the Commission completed the rule-making hearings and voted to amend that portion of the rule dealing with the calculation of the amount of additional depreciation allowed utilities. The qualification proceedings for FPL’s project reconvened on July 30, 1982, and on August 3, 1982, the Commission voted to waive the prior-approval requirement and to qualify FPL’s project for recovery under the initial Oil-Backout Rule. Citizens and FIPUG opposed this action, contending that the waiver of the prior-approval requirement was not supported by the evidence in the record. The order granting the waiver of the prior-approval requirement for FPL’s project is the subject of the first issue on appeal.

The second issue on appeal concerns the computation of FPL’s cost-recovery factor. After its project was qualified under the Oil-Backout Rule, FPL filed a petition for approval of its computation of its oil-back-out factor. The Commission approved FPL’s computation of its oil-backout cost recovery factor, finding that it was in accordance with the Oil-Backout Rule as amended on August 3, 1982. Citizens appealed the Commission’s order on this issue, contending that it was error for the Commission to have used the amended version of the Oil-Backout Rule in calculating FPL’s oil-backout cost recovery factor.

With regard to the first issue, Citizens contend that Rule 25-17.16, and particularly section (3)(c) of the rule, is devoid of any guidelines and standards to direct the Commission’s action and that the decision to waive the prior-approval requirement in this case was arbitrary and capricious because the Commission failed to develop guidelines and standards in the record. We disagree. As we have stated before, “[t]he standard on review is whether competent, substantial evidence supports a Commission order.” Citizens v. Public Service Commission, 425 So.2d 534, 538 (Fla.1982) (citing Citizens v. Hawkins, 356 So.2d 254, 259 (Fla.1978); De Groot v. Sheffield, 95 So.2d 912 (Fla.1957)). Further, “[ojrders of the Commission come before this Court clothed with the presumption of validity.” Citizens, 425 So.2d at 538 (citing General Telephone Co. v. Carter, 115 So.2d 554, 556-57 (Fla.1959)). We find that the Oil-Backout Rule itself provides specific qualifications requirements pursuant to which the Commission determines whether a project qualifies under the rule. The waiver provision of section (3)(c) merely allows for the approval of projects under the rule where such projects were begun before the rule was adopted or before the Commission is able to act on a petition for approval, and the utility must begin the project to obtain its full benefits. Section (3)(c) has adequate guidelines and standards to safeguard against arbitrary action by the Commission. We also find that in this case the Commission’s decision to waive the prior-approval requirement was supported by competent, substantial evidence. The Commission expressly found that it was necessary for FPL to begin its project prior to approval under the rule to take advantage of the availability of coal-fired electricity from the Southern Company.

Citizens’ second contention, that the Commission departed from the essential requirements of the law when it allegedly retroactively applied the amended version of Rule 25 — 17.16(4)(a) to calculate the costs to be recovered by FPL from its ratepayers, is also not supported by the record. FPL’s project was qualified under the Oil-Backout Rule when the initial cost recovery formula set out in section (4)(a) of Rule 25.17-16 was in effect. Between the time that FPL’s project was qualified and FPL’s initial six-month cost recovery factor was determined, the Commission amended section (4)(a). Citizens contend that the Commission’s use of amended section (4)(a) in determining FPL’s cost recovery factor was, in effect, retroactive ratemaking. According to Citizens, the Oil-Backout Rule is self-contained and because the initial cost recovery factor was in effect at the time that FPL’s project qualified under the rule it had to be applied in this case. The Commission rejected this interpretation of its rule. It determined that under the Oil-Backout Rule two distinct processes occur. First, a project qualifies under the rule and, second, the cost recovery factor is determined. Substantial time may elapse between these first and second steps, and the cost recovery factor is subject to change. The Commission also rejected Citizens’ contention that its application of the rule in this case constituted retroactive ratemaking, concluding that retroactive ratemaking only occurs when new rates are applied to prior consumption. See Gulf Power Co. v. Cresse, 410 So.2d 492 (Fla.1982). We agree with the Commission that its application of the cost recovery factor rule in this case was not retroactive rate-making.

The Commission’s construction and application of the Oil-Backout Rule in this case was reasonable and the Commission did not depart from the essential requirements of the law in its action. Accordingly, we affirm the orders of the Public Service Commission.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, McDonald, EHRLICH and SHAW, JJ., concur.


author: SHIVERS, Judge.

text:
    Isiah WALKER, Appellant, v. J.C. PENNEY CO. and Liberty Mutual Ins. Co., Appellees.
    No. AT-414.
    District Court of Appeal of Florida, First District.
    March 19, 1984.
    Rehearing Denied May 15, 1984.
    Bradley R. Bettin and Robert D. Melton, P.A., Orlando, for appellant.
    Lamar D. Oxford of Dean, Ringers, Morgan & Lawton, Orlando, for appellees.
   SHIVERS, Judge.

In this workers’ compensation case, claimant appeals the deputy commissioner’s order finding claimant’s petition for modification barred by the Statute of Limitations. We reverse.

Claimant was injured in a compensable accident on July 7, 1978. The employer/carrier voluntarily paid claimant temporary total disability benefits until November 23, 1979. After discontinuance of these benefits, claimant filed a claim for benefits contending that he was entitled to continuing temporary total disability benefits from November of 1979 until he reached maximum medical improvement, or, if it was found that claimant had reached maximum medical improvement, that claimant was entitled to permanent partial disability benefits. Hearing was held on claimant’s alternate claims on June 9, 1980. By order dated and mailed April 1, 1981, the deputy commissioner found, inter alia, that claimant was entitled to temporary total disability benefits until November 23, 1979, that claimant reached maximum medical improvement on November 19, 1979, and, that claimant had no permanent physical impairment or permanent partial disability. Accordingly, the deputy decreed that claimant’s claim for permanent partial disability benefits be denied.

On March 17, 1983, claimant filed a petition for modification of the April 1, 1981 order. At hearing held on this matter, the employer/carrier argued that claimant’s petition for modification was barred by the Statute of Limitations since the order of April 1, 1981, did not reject claimant’s claim. The deputy commissioner agreed with the employer/carrier. Specifically, the deputy found that the order of April 1, 1981, did not reject claimant’s claim since claimant prevailed on several issues at the hearing held on June 9, 1980, and therefore, claimant did not have until two years after the April of 1981 order in which to file his petition for modification. We disagree with the deputy’s finding.

Section 440.28, Florida Statutes, provides in pertinent part that a petition for modification may be brought at any time prior to two years after the date copies of an order rejecting a claim are mailed to the respective parties. The deputy commissioner in this case apparently interpreted the phrase “rejecting a claim” as meaning the entirety of claimant’s position in requesting compensation, and therefore, if a claimant prevails on several issues at a hearing, specifically including the compensability of a claim, then a claimant’s claim is not rejected within the terminology of section 440.28. We do not interpret section 440.28 so narrowly. Rather, we find and hold that the April of 1981 order did reject claimant’s alternate claims for continuing temporary total disability benefits and permanent disability benefits within the meaning of section 440.28. See, e.g., Boden v. City of Hialeah, 132 So.2d 160 (Fla.1961); Forrest v. Smith, 9 FCR 271 (July 25, 1975), cert, denied, 336 So.2d 107 (Fla.1976). Accordingly, since claimant’s petition for modification sub judice was filed within two years of the date copies of the April of 1981 order were mailed to the respective parties, claimant’s petition for modification was timely. The deputy commissioner’s order therefore is reversed and upon remand the deputy is directed to conduct proceedings consistent with this opinion.

REVERSED and REMANDED with directions.

BOOTH and JOANOS, JJ., concur.


author: HUBBART, Judge. FERGUSON, Judge HENDRY, Judge, HENDRY, Judge. HUBBART, Judge

text:
    Henry Lee RILEY, Appellant, v. The STATE of Florida, Appellee.
    No. 81-396.
    District Court of Appeal of Florida, Third District.
    March 29, 1983.

      Bennett H. Brummer, Public Defender, and Sheryl Joyce Lowenthal, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and FERGUSON, JJ.
   HUBBART, Judge.

The central issue raised by this appeal is whether it is unlawful [under the federal or Florida constitution or Florida statutory law] for the police, in an otherwise lawful manner, to enter private premises which they are authorized to search pursuant to a valid and previously issued search warrant, when, as here, the entering officers do not physically have the search warrant in hand upon entry, but do receive the warrant some twenty (20) minutes later and duly execute it. We hold that no such constitutional or statutory violation is shown by the above stated police conduct, and, that, accordingly, the trial court was correct in denying the defendant’s motion to suppress the fruits of the ensuing search and seizure. We further reject the defendant’s sentencing point on appeal and affirm in all respects the final judgment of conviction and sentence under review.

I

The facts relating to the search and seizure in this case are virtually undisputed. On April 1, 1980, in the evening hours, Officer William Johnson of the Dade County Public Safety Department went to the home of a circuit judge in northeast Dade County, Florida, for the purpose of securing a search warrant. Officer Johnson was armed with a detailed affidavit in support of the search warrant which tended to show that certain illegal drug dealing was taking place in a particular motel room at a motel complex located near the Miami International Airport. The circuit judge examined the affidavit presented to him by Officer Johnson, made a determination that the affidavit stated probable cause for the search of the motel room in question, and issued a search warrant for Dade County Public Safety Department officers to search the said motel room for contraband drugs.

While this was transpiring, two other Dade County Public Safety Department officers were standing by in a room located across the hall from the motel room in question. Officer Johnson, upon receiving the search warrant, proceeded to the said motel room; en route, he radioed his dispatcher that the judge had signed the search warrant and directed the dispatcher to so notify the two officers who were standing by. These latter officers were immediately so notified and thereafter proceeded across the hall to the motel room in question. They encountered, at that time, a woman who was in the process of opening the door to the room with several bags in hand. The officers, in turn, displayed their police badges and announced: “Police officers, we have a search warrant for the room.” The woman tried to close the door, but the officers forced the door open, stood immediately inside the door, and announced that they were awaiting a search warrant for the search of the premises; the defendant Henry Lee Riley was inside the room alone and in bed. Everyone then waited for some twenty (20) minutes at which time Officer Johnson arrived with the search warrant in hand which was then duly executed. A search thereafter ensued in which a quantity of heroin was seized and the defendant Riley arrested.

The defendant Riley tVas subsequently charged by information with various drug offenses in the Circuit Court for the Eleventh Judicial Circuit of Florida in and for Dade County, Florida. The defendant Riley filed a motion which was subsequently supplemented, to suppress the fruits of the search of the above motel room which he apparently had rented. The trial court conducted a full evidentiary hearing on these motions at which time the above facts were established. At the conclusion of the hearing, the trial court denied these motions. The defendant thereafter pled nolo conten-dere to two counts in the information charging: (1) possession with intent to sell a controlled substance [§ 893.13(l)(a)l, Fla. Stat. (1981)], and (2) sale or delivery of a controlled substance [§ 893.13(l)(a)l, Fla. Stat. (1981) ], reserving for appeal the denial of the above motion to suppress. The trial court accepted the plea as' thus conditioned and sentenced the defendant to two (2) concurrent four (4) year prison terms, followed by two (2) concurrent three (3) year terms of probation. The defendant appeals; we have jurisdiction to entertain this appeal. Brown v. State, 376 So.2d 382 (Fla.1979); State v. Ashby, 245 So.2d 225 (Fla.1971).

II

The central attack made by the defendant against the search and seizure in question is that the police initially entered his motel room unlawfully because they did not physically have the search warrant in hand upon the initial entry. It is said that this initial entry was, therefore, in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 12 of the Florida Constitution and Chapter 933 of the Florida Statutes (1981), thereby invalidating the subsequent search and seizure. We cannot agree. A subsidiary attack is also made on the affidavit upon which the search warrant was issued; we reject this position as well.

A

First, there is no federal or state constitutional authority anywhere, and the defendant cites none, which holds or remotely suggests that it is a Fourth Amendment or state constitutional violation for police in an otherwise lawful manner to enter private premises pursuant to a valid and previously issued search warrant where, as here, the police do not physically have the search warrant in hand upon entering, although the warrant arrives shortly thereafter and is then properly executed. Indeed, the authorities are virtually unanimous that no constitutional violation is shown by this or similar police conduct in executing the search warrant. United States v. Marx, 635 F.2d 436 (5th Cir.1981); United States v. Woodring, 444 F.2d 749 (9th Cir.1971); United States v. Cooper, 421 F.Supp. 804 (W.D.Tenn.1976); State v. Gomez, 101 Idaho 802, 623 P.2d 110, 117 (1980), cert. denied, 454 U.S. 963, 102 S.Ct. 503, 70 L.Ed.2d 378 (1981); 2 W. LAFAVE, SEARCH AND SEIZURE § 4.12 (1978). See also Mayorga v. People, 178 Colo. 106, 496 P.2d 304 (1972); State v. Pointer, 135 N.J.Super. 472, 343 A.2d 762, pet. for cert. denied, 69 N.J. 79, 351 A.2d 7 (1975); State v. Johnson, 16 Ohio Mise. 278, 240 N.E.2d 574 (1968). We decline to be the first court in the country to strike down such police conduct as unconstitutional. Agreed, a liberal construction should be given to the individual’s constitutional rights in this area of law, Taylor v. State, 355 So.2d 180, 186 (Fla. 3d DCA), cert. denied, 361 So.2d 835 (Fla.1978), but this does not require us to abandon common sense and blindly adopt hypertechnical rules, as urged here, which do not remotely serve to protect the substance of the individual’s Fourth Amendment freedom in any way. State v. Nittolo, 317 So.2d 748, 750 (Fla.), cert. de nied, 423 U.S. 1036, 96 S.Ct. 572, 46 L.Ed.2d 411 (1975).

B

Second, we see no Florida statutory violation in the manner the police executed the search warrant in this case. In this connection, we must differ with our former colleague, Judge Gerald Mager, who concluded otherwise in his concurring opinion in Swinford v. State, 311 So.2d 727 (Fla. 4th DCA 1975). Like the trial judge in this case, we are unpersuaded by Judge Mager’s analysis.

Section 933.11, Florida Statutes (1981), provides that “[a]ll search warrants shall be issued in duplicate,” and that said duplicate “shall be delivered to the officer with the original warrant, and when the officer serves the warrant, he shall deliver a copy to the person named in the warrant, or in his absence to some person in charge of, or living on the premises.” Section 933.08, Florida Statutes (1981), further provides that a search warrant “shall in all cases be served by any of the officers mentioned in its direction, but by no other person except in aid of the officer requiring it, said officer being present and acting in its execution.” Neither of these statutes require that the officer executing the search warrant must physically have the warrant in hand at the moment he enters upon the premises which he is authorized by the search warrant to search. They require only that an officer mentioned in the direction of the search warrant must serve the warrant, and that when he does so, a duplicate copy of the warrant must be delivered to the person named in the warrant or to a person in charge of or living on the premises; no particular time is stipulated by these statutes as to when formal service of the search warrant and delivery of a copy thereof must take place — although, by implication, it would have to take place at some time prior to, during, or immediately subsequent to the ensuing search and seizure.

In the instant case, the above statutes were, in our view, fully complied with. All the police officers who entered and searched the defendant’s premises were authorized to do so by the subject search warrant. In addition, the search warrant was formally executed and a duplicate copy thereof duly delivered to the defendant upon the arrival of Officer Johnson within twenty (20) minutes after the initial police entry. Moreover, it is undisputed that the officers properly entered the premises after announcing tlieir authority and purpose in full compliance with Section 933.09, Florida Statutes (1981). Florida statutory law was, therefore, fully satisfied in this case as to the execution of the search warrant herein.

C

The defendant has also attacked the affidavit upon which the subject search warrant was issued as stating no probable cause and as containing material misrepresentations. We find no merit in this position. In our view, the affidavit for the search warrant states abundant probable cause for the issuance of the search warrant; moreover, the inaccuracies in the affidavit, if any, were miniscule, unintentional, and in no way material to the establishment of probable cause. As such, the search warrant was properly issued based on a clear showing of probable cause. See e.g., Antone v. State, 382 So.2d 1205, 1211— 12 (Fla.), cert. denied, 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980); Findlay v. State, 316 So.2d 33 (Fla.1975); Mathes v. State, 375 So.2d 1084 (Fla. 1st DCA 1979).

Ill

Finally, we reject the defendant’s attack on the sentence imposed in this case as being in violation of Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1980), because the record plainly reflects that the defendant agreed to the sentence imposed in a plea negotiation agreement entered into below. We concur entirely with Judge Orfinger’s opinion for the Fifth District Court of Appeal, Peak v. State, 399 So.2d 1043 (Fla. 5th

DCA 1981), which rejects an identical contention as follows:

“Appellant also contends on appeal that the split sentence is improper under the principles of Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (1981) [1981 FLW 313]. However valid his contention might he had the sentence followed a trial and conviction, here it resulted from a plea bargain and we cannot give the appellant relief from his bargain without also offering the state the same relief. See Jolly v. State, 392 So.2d 54 (Fla. 5th DCA 1981); Cleveland v. State, 394 So.2d 230 (Fla. 5th DCA 1981).
“Villery does not address negotiated split sentences which are otherwise within the limits prescribed by law. Because the sentence and the plea are intertwined, [footnote omitted] the appellant must seek his relief, if any, from the trial court upon proper application. If the appellant is not bound by the plea negotiation, then neither is the State, and relief is available in the trial court.” Id. at 1043-44.

The final judgment of conviction and sentence under review is, in all respects,

Affirmed.

FERGUSON, Judge

(concurring).

Though I share Judge Hendry’s concerns that inherent in this decision is a potential for violent confrontation between homeowners and law enforcement officers — especially so when the officers are not in uniform — I am reluctantly convinced that the weight of authority compels the result. I understand that what we sanction today is a “securing of the premises” after a warrant has been signed by a magistrate, with no actual search to be conducted until receipt of the warrant describing the items to be seized. Suarez v. State, 400 So.2d 1048 (Fla. 3d DCA 1981). I further understand the police jargon “securing the premises” to mean a restraint on movement of persons and things within the place, and no more.

HENDRY, Judge,

dissenting.

The majority opinion today holds that the existence in being of a search warrant is the basis for securing premises prior to the search. I must respectfully dissent. In contrast to the majority’s conclusion that no constitutional or statutory violation occurred by virtue of the officers’ entry prior to arrival of the search warrant, I find that the very safeguards intrinsic to the warrant requirement are frustrated by this result. Display of a search warrant to the occupant of premises to be searched serves to delimit the scope and intensity of the search, put the party on notice of the authority and purported reasons for the search and enable him to prepare to contest it if he so desires, and apprise the party that there is color of authority for the search and that he is not entitled to oppose it by force. 2 W. LA-FAVE, SEARCH AND SEIZURE §§ 4.10, 4.12 (1978).

My primary concern with this decision is the inherent potential for violent confrontation. Illegal entry into a home by officers, whether in uniform or without, asserting authority on the verbal declaration of the existence of a warrant which may later arrive, might well result in their being killed under the mistaken impression that the home owner was protecting his family and his home against intruders. Existence of a duly issued search warrant “somewhere” is of small comfort to the citizen who must make an on-the-spot decision as to what action to take in response to a very serious intrusion on his privacy.

I am also concerned about the extent to which this holding licenses the police to proceed in their quest for evidence. In this particular situation they simply secured the premises — a one room hotel lodging. Whether they may actually begin to search the premises so long as the warrant is on its way is left to speculation, since the court does not specifically limit its ruling to “securing of premises.”

While in agreement with the majority’s pronouncement that a liberal construction should be given to the individual’s constitutional rights in this area of law, I am unable to view these precious constitutional and statutory safeguards as mere “hyper-technical rules.” As the United States Supreme Court explained in Miller v. United States, 357 U.S. 301, 313, 78 S.Ct. 1190, 1197-1198, 2 L.Ed.2d 1332, 1340 (1958):

However much in a particular case insistence upon such rules may appear as a technicality that inures to the benefit of a guilty person, the history of the criminal law proves that tolerance of short-cut methods in law enforcement impairs its enduring effectiveness. The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given grudging application.

I must also take exception to the majority's conclusion that no statutory violation resulted from the manner in which the police executed the search warrant in this case. The language employed in both section 933.11, Florida Statutes (1981) that “when the officer serves the warrant, he shall deliver a copy to the person named in the warrant,” and section 933.08, that the warrant “shall in all cases be served by any of the officers mentioned in its direction, but by no other person except in aid of the officer requiring it, said officer being present and acting in its execution,” (emphasis added), in my opinion, contemplates that an officer mentioned in the direction of the search warrant physically have the warrant in hand when he enters upon the premises. I reach this conclusion on the basis that a securing of premises is an act “in execution of the search warrant,” which, by virtue of section 933.08, requires the presence of one of the named officers armed with a warrant. Accordingly, I agree with Judge Mager’s concurring opinion in Swinford v. State, 311 So.2d 727 (Fla. 4th DCA 1975), the only case on point in this state, that possession of the search warrant by the officers at the time the search is performed is essential to the validity of the seizure, and mere knowledge that a warrant has been issued fails to satisfy constitutional and statutory guarantees against unreasonable searches. In the instant case, with the defendant’s hotel room under surveillance for some time, and secure in the knowledge that he could not slip away undetected, why the police didn’t simply wait for arrival of the warrant defies logic. Any emergency in this instance was strictly of the do-it-yourself variety; that is, by breaking into the hotel room the officers themselves alerted the defendant to their presence.

Finally, my feelings on this matter have been most eloquently summed up by Justice Bistline’s dissent in State v. Gomez, 101 Idaho 802, 623 P.2d 110 (1980), cert. denied, 454 U.S. 963, 102 S.Ct. 503, 70 L.Ed.2d 378 (1981), a factually similar case cited by the majority opinion:

The only discernible difference between the intrusion of a “securing” from within as against a “search” is one of purpose; a search is to discover evidence to be taken for later use at trial, whereas in a mere “securing” the violated premises and occupants are seized and laid captive until the police officers arrive with the warrant which, by the doctrine espoused by the Court in today’s opinion, is said to legitimatize the dastardly prior conduct. In today’s sanctioning of “Securing the Premises” the police are given judicial license to at will invade any and all parts of a person’s home, while at the same time the occupants ... are eustodially restrained in their own living room. In fact and truth, “Securing the Premises” is by far the worst infringement on the Fourth Amendment which has yet been visited on the people. The police, without being able to show any authority for their intrusion, need only declare to the occupants of a house that they are “securing” it on the premise that such is sufficient justification for their entry. Such conduct is on a par and readily classified with the much hated General Warrant visited upon the colonists by the British, which abuse played a large part in fomenting the Revolution. Nor is it any defense to suggest that the people ought not to complain because, after all, somewhere, although the warrant proving that fact is not present, there has been a determination of probable cause made by a detached and neutral magistrate. Only the presentation of a warrant at the time of the intrusive entry can be said to meet with constitutional requirements.

Id. 623 P.2d at 132.

ON MOTION FOR REHEARING

HENDRY, Judge.

The motion for rehearing is granted. The original opinion in this case [filed November 16, 1982] is withdrawn and the dissenting opinion of Judge Hendry becomes the opinion of the court. We therefore reverse the appellant’s conviction and order him discharged. We also grant the suggestion for certification and certify to the Supreme Court of Florida, as provided for in Article V, Section 3(b)(4) of the Constitution of Florida, the following question of great public importance:

Whether it is unlawful [under the federal or Florida constitution or Florida statutory law] for the police, in an otherwise lawful manner, to enter private premises which they are authorized to search pursuant to a valid and previously issued search warrant, when the entering officers do not physically have the search warrant in hand upon entry, but do receive the warrant shortly thereafter and duly execute it.

The petition for rehearing is granted. Question certified.

HUBBART, Judge

(dissenting).

I must respectfully dissent. I would deny the motion for rehearing on the search and seizure issue and adhere to the original opinion of the court as correctly stating and applying the established law herein. I would, however, grant the motion for rehearing on the sentencing issue and delete all references to said issue from the original opinion, including section III thereof; the defendant withdrew this issue from our consideration in his reply brief, after having previously raised it in his main brief, and we inadvertently overlooked that waiver. I also agree with the court’s decision to certify the search and seizure issue herein to the Florida Supreme Court. Beyond that, I would add only one additional point not heretofore discussed.

Judge Hendry’s dissent, now the court’s opinion herein, appears to rest its result, at least in part, on “the inherent potential for violent [police-citizen] confrontation” [p. 1033] if the contrary but prevailing law on this subject is adopted, as expressed in this court’s original opinion. Indeed, Judge Hendry identifies this perceived violent potential as his “primary concern” [p. 1033] in this case, a concern shared as well by Judge Ferguson in his original concurring opinion herein [p. 1033]. It is urged that the average homeowner would reject a police officer’s “verbal declaration of the existence of a warrant which may later arrive” as apparently not worthy of belief even after a proper display of police credentials [p. 1033]; it is further urged that the homeowner would, in all likelihood, kill the officer or use other means of violent self help “under the mistaken impression that the homeowner was protecting his family and his home against intruders.” [p. 1033], It is with some regret that I find myself unable to agree with these stated concerns of my distinguished colleagues.

First, I see no basis for believing that homeowners would react in the violent manner suggested by Judge Hendry. We are, after all, a law-abiding people who, by and large, respect the symbols of authority in our society, including police officers. I think, without question, that the average law-abiding person would without fuss admit such an officer, properly identified, to the citizen’s home [or at least not resort to violent self help] when, as here, the officer explains that a search warrant has been issued for the home and will arrive shortly thereafter. Indeed, the homeowner would have no basis for believing otherwise and utterly no grounds for concluding that the officer was a criminal intruder. True, as Judge Hendry contends, the homeowner has every right to a copy of the subject search warrant, but surely it is perfectly reasonable to supply that copy, as here, shortly after the initial police entry as the prevailing law authorizes. We engage in flights of fancy, I think, if we believe that this perfectly sensible procedure will ignite normal, law-abiding citizens to take up arms in defense of their respective dwellings.

Second, there is no evidence, to my knowledge, that such violent police-citizen confrontations have occurred in those jurisdictions which have adopted the prevailing law on this subject throughout the country. This is hardly surprising as the prevailing law here is both sensible and fair. There is every reason to believe, in my view, that our experience in Florida would be no different. Indeed, we in this state have long recognized, without dire consequences, the authority of police officers to make non-consensual entries onto private premises, without any warrant at all, in order to effect a felony arrest therein, see e.g., Benefield v. State, 160 So.2d 706 (Fla.1964); § 901.19(1), Fla.Stat. (1981); although that law has recently been changed, it still appears viable where exigent circumstances are shown. Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); Payton v. New York, 445 U.S. 573,100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); see also Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Surely, we can expect a similar experience when, as here, a previously issued search warrant is in fact served upon the homeowner shortly after a non-conseqsual police entry.

Third, and more to the point, I see nothing to recommend a rule of law which seems to be based, even in part, on a fear of lawless violence if not accepted. We cannot, it seems to me, cave in to the few lawless individuals in our midst who might irrationally act in the manner suggested by Judge Hendry. Ours is a government of laws and not of men; our laws must be shaped by the principles of fairness and reason and not by fears, real or imagined, of irrational violence.

I think the established law on this subject is eminently sound; I would adhere to it as the law of this state.


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

text:
    Timothy LORANGER, a minor, By and Through Louis LORANGER, his father and next friend, and Louis Loranger, individually, Appellants, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 82-1238.
    District Court of Appeal of Florida, Fourth District.
    July 13, 1983.
    Rehearing Denied May 9, 1984.

      William deForest Thompson, Fort Laud-erdale, and Joel L. Kirschbaum of Esler, Kirschbaum & Gustafson, Fort Lauderdale, for appellants.
    Timothy J. Payne of Conrad, Scherer & James, Fort Lauderdale, for appellee.
   ANSTEAD, Chief Judge.

This is an appeal from a final summary judgment exonerating DOT from responsibility for injuries suffered by the minor appellant when he was struck by an automobile on the Florida Turnpike. We reverse.

Timothy Loranger, then two months shy of eight years of age and intending to go fishing, gained access to the turnpike by going through a hole under a fence erected by DOT to prevent access to the roadway. He apparently followed a worn path which led to the fence and continued through the hole under the fence down onto the turnpike. After having crossed both the southbound and northbound lanes, Timothy followed several other boys he was with back across the road to check on their bicycles. Timothy was hit by a car before reaching the other side of the road.

In its motion for summary judgment, memorandum in support thereof, and at the hearing on the motion, DOT argued only that its alleged negligence in improperly maintaining the fence was too remote as a matter of law to constitute a proximate causal factor of Timothy’s injuries. In Cole v. Leach, 405 So.2d 449, 450 (Fla. 4th DCA 1981), this court stated:

One whose negligence causes injury to another is liable for all of the consequences that naturally and proximately flow from such injury, Cone v. Inter-county Telephone and Telegraph Company, 40 So.2d 148 (Fla.1940), including injury from an intervening cause when such intervening cause is itself a reasonably foreseeable consequence of the tort-feasor’s conduct, Gibson v. Avis Rent-A-Car Systems, Inc., 386 So.2d 520 (Fla.1980), the question of whether the intervening cause was reasonably foreseeable being one for the trier of fact. Gibson v. Avis Rent-A-Car Systems, Inc., supra.

In Goode v. Walt Disney World Co., 425 So.2d 1151 (Fla. 5th DCA 1982), the Fifth District Court of Appeal was confronted with the issue of whether the trial court erred in entering summary judgment in favor of Walt Disney World Co. in a wrongful death action. A child drowned after he apparently climbed over a fence in the theme park. The trial court found that genuine issues of fact existed as to the design of a fence, but found those issues immaterial because of the lack of a causal relationship between the alleged negligence and the child's death. In reversing the trial court, the Goode opinion declared:

We believe there is a reasonable inference available to the jury that a causal relationship exists between the negligence (admitted for summary judgment argument) of the defendant in having a fence too short to prevent physical access, to the moat by small children and the drowning death of Joel Goode. Disney World has conceded that it is foreseeable that small children frequently become separated from their parents and that they have been known to climb its short fences and gain access to the grassy area bordering the moat. Access to the edge of the moat is access to the moat itself. A four-year-old boy cannot be guilty of contributory negligence so as to constitute an efficient intervening cause precluding Disney World’s liability. Nor can the mother’s negligent supervision, admitted arguendo by appellant, serve as an efficient, intervening cause shielding Disney World from liability, since her negligent supervision, similar to that of thousands of other parents which occurs annually at the Magic Kingdom, was foreseen by Disney World. Indeed, the evidence below was that at the Kingdom’s Lost Children Center there were 11,420 “lost children” reported in 1977. If an intervening cause is foreseeable, it cannot insulate a defendant from all liability. Rupp v. Bryant, 417 So.2d 658 (Fla.1982).

425 So.2d at 1156.

In the instant case, we believe the trier of fact could properly conclude that a causal relationship existed between the alleged negligent maintenance of the fence and the injuries sustained by the minor appellant when he was hit by a car on the turnpike. The foreseeability of injuries of the type suffered here seems proper for the jury. Is it not foreseeable that a child, attracted to a fishing hole located behind his neighborhood and across the turnpike and frequented by the neighborhood children, would be hit by an automobile if there are not sufficient warnings or properly maintained barriers to prevent the child from wandering onto the turnpike? Looking at the facts in a light most favorable to appellant and resolving all inferences against DOT, we believe the final summary judgment was erroneously entered.

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

HERSEY, J., concurs.

BERANEK, J., dissents with opinion.

BERANEK, Judge,

dissenting.

I dissent. I believe the trial court was correct. The DOT should not be held responsible for injury on roads which people chose to walk across.

Oh. REHEARING

PER CURIAM.

Although adhering to our initial reversal, we choose to address the issue of legal duty on rehearing. The only issue on which the trial court ruled in granting summary judgment was that the defendant’s assumed negligence was “too remote” to constitute a proximate cause of the plaintiffs’ injury. We initially reversed that summary judgment concluding that issues of fact were present. Our initial opinion was based entirely on the assumption that negligence on the DOT’s part was present.

On appeal, the DOT/appellee had attempted to raise the issue of an absence of duty as an additional reason supporting the trial court’s summary judgment. Appellants/plaintiffs objected to our consideration of the duty issue because it had never been specifically raised before the trial court. Appellants argued the established principle that a matter may not be raised for the first time on appeal. Dober v. Worrell, 401 So.2d 1322 (Fla.1981) and Mariani v. Schleman, 94 So.2d 829 (Fla.1957). DOT argued conversely that we may affirm the trial court if the judgment was correct albeit for the wrong reason. Firestone v. Firestone, 263 So.2d 223 (Fla.1972) and Miami Beach v. 8701 Collins Avenue, Inc., 77 So.2d 428 (Fla.1954).

We need not and do not deal with the philosophical frictions between the two appellate maxims of “right for the wrong reason” and “raising issues for the first time on appeal.” The Rules of Civil Procedure give clear guidance making resort to these appellate maxims unnecessary. Fla. R.Civ.P. 1.510 governs summary judgments, and subsection (c) thereof provides for the content of the motion. In order to insure that the issues raised are adequately identified and the parties given notice and an opportunity to perform discovery, the rule requires that the motion state with particularity the grounds upon which it is based and the substantial matters of law to be argued. The 1976 committee note indicates that subsection (c) was designed to prevent surprise.

The trial court has never considered the issue of an absence of duty on the part of DOT. Indeed, the DOT apparently never considered this issue until the filing of the appellee’s brief in this court. We are not certain precisely what legal and factual issues may árise if and when the trial court is presented with an appropriate pleading raising the issue of the existence of a legal duty. Suffice it to say that we will not deal with these issues initially on appeal under the circumstances of this case.

We further caution that our reliance on Goode v. Walt Disney World Company, 425 So.2d 1151 (Fla. 5th DCA 1982), in our initial opinion should not be construed as applicable to the duty issue which was not addressed in that opinion. The motion for rehearing is denied, the summary judgment is reversed and the matter remanded for further proceedings consistent herewith.

ANSTEAD, C.J., and BERANEK and HERSEY, JJ., concur.

      . The appellee's answer to appellants’ amended complaint asserts that appellee’s activity in erecting the fence was a planning, as opposed to an operational function; that it was guilty of no negligence; that the minor claimant caused his own injuries; that the appellee is entitled to a set-off for any funds appellants collected for the injuries from any other source; and that the limitation of liability set out in Section 768.28, Florida Statutes, is applicable.