text:
    Adrian WINTERFIELD, Appellant, v. TOWN OF PALM BEACH and the State of Florida, Appellees.
    No. 64284.
    Supreme Court of Florida.
    July 19, 1984.
    Rehearing Denied Oct. 5, 1984.
    Adrian Winterfield, pro. per.
    John C. Randolph of Johnston, Sasser, Randolph & Weaver, West Palm Beach, for appellee Town of Palm Beach.
    David H. Bludworth, State Atty. and Marta M. Suarez-Murias, Asst. State Atty., West Palm Beach, for State.
   PER CURIAM.

This is an appeal from a circuit court judgment validating municipal bonds pursuant to chapter 75, Florida Statutes (1983). We have jurisdiction. Art. V, § 3(b)(2), Fla. Const.

Electors of the Town of Palm Beach voted on a bond referendum on March 22, 1983. The proposed bond issue would raise $7 million to pay for a new police facility, a fire station, and a sewer compressor station. The ballot provided for a single vote to be cast on the entire bond issue, rather than allowing a separate vote to be cast for each project. Approximately three-quarters of those voting approved the bond issue.

Winterfield appeared as an intervenor at the circuit court validiation hearing held August 1, 1983, pursuant to chapter 75, and was permitted to intervene. He unsuccessfully challenged the validity of the bonds on two grounds, violation of the “single-purpose” rule and technical irregularities in the bonding process. The circuit court validated the bonds and Winterfield appealed to this Court. We affirm the judgment of validation.

I. THE SINGLE-PURPOSE RULE

The single-purpose rule was adopted by this Court in Antuono v. City of Tampa, 87 Fla. 82, 99 So. 324 (1924). The rule was stated as follows:

If there are two or more separate and distinct propositions to be voted on, each proposition should be stated separately and distinctly so that a voter may declare his opinion as to each matter separately, since several propositions cannot be united in one submission to the voters so as to call for one assenting or dissenting vote upon all the propositions; and elections are invalid where held under such restrictions as to prevent the voter from casting his individual and intelligent vote upon the object or objects sought to be obtained. The object of the rule preventing the submission of several and distinct propositions to the people united as one in such a manner as to compel the voter to reject or accept all is to prevent the joining of one local subject to others in such a way that each shall gather votes for all, and thus one measure, by its popularity or its apparent necessity, carries other measures not so popular or necessary and which the people, if granted the opportunity of separate ballots, might defeat. However, unless otherwise provided, it is proper to submit a number of propositions or questions at one time, providing the ordinance specifies each separate question or proposition as such, and provision is made by which the voters are given opportunity to vote upon each specific proposition or question independent of the other questions submitted at the same time. This may be done upon a single ballot, but the ballot must state each proposition separately, so that the voter may be able to express his will with reference to each question.

87 Fla. at 90-91, 99 So. at 326 (emphasis in original) (quoting 5 E. McQuillin, The Law of Municipal Corporation § 2198 (1921), identical language in current edition at 15 J. Latta & E. McQuillin, The Law of Municipal Corporation § 40.09 (3d ed. 1970).

The rule has been construed so that “if bonds are proposed and issued for two or more purposes that are so related as to amount to a single purpose, they may be combined and voted on as a single issue.” State v. City of Daytona Beach, 160 Fla. 13, 14, 33 So.2d 218, 219 (1948). This is especially so when a single plan of financing is involved. State v. City of St. Augustine, 235 So.2d 1 (Fla.1970). In every case considered by this Court since Antuono raising the single-purpose rule, the Court has found sufficient interrelationship between various projects to amount to a single purpose.

In the case before us, the town suggests that the three projects constitute a single purpose — to provide essential services. If we were to accept this rationale, the single-purpose rule would be effectively eviscerated. Instead, we find that, based on the facts of this case, more than one purpose will be served in issuing these bonds. At the very least, the public safety purpose of the police and fire projects is separate and distinct from the public health purpose of the sewer projects. We do not need to decide whether the police and fire projects are also separate and distinct purposes.

The Antuono single-purpose rule appears to require invalidation whenever voters have been asked to approve more than one purpose with a single vote. However, this Court has not lost sight of the underlying rationale for the rule, which is to prevent the electoral equivalent of logrolling, whereby “one measure, by its popularity or its apparent necessity, carries other measures not so popular or necessary and which the people, if granted the opportunity of separate ballots, might defeat.” Antuono, 87 Fla. at 90, 99 So. at 326. While electoral logrolling is an evil to be avoided, per se invalidation may very well result in a greater evil. Thus, this Court has on one occasion recognized that a violation of the single-purpose rule does not render bonds invalid per se. In State ex rel. Wilkes v. Brandon, 92 Fla. 793, 110 So. 127 (1926), the mayor of Perry refused to sign bonds after the election and circuit court validation. The mayor raised the single-purpose rule in response to a petition for an alternative writ of mandamus to require the may- or to sign the bonds. This Court held:

It is not made to appear that such a purpose [to extend municipal waterworks and sewer systems] embraces “two or more separate and distinct propositions” as was contemplated by the rule announced in the Antuono case, and if it did so appear, we think that those desiring to avail themselves of the benefits of the rule, must do so in seasonable time. When power to issue the bonds is admitted, and they have in fact been issued and validated by decree of the Circuit Court as provided under the law of this State, and no fraud is charged, an attempt to invoke the rule in the Antuono case comes too late. *

State ex rel. Wilkes v. Brandon, 92 Fla. at 795-96, 110 So. at 128. This Court also recognized the desirability of a “seasonable” challenge based on the single-purpose rule in State v. City of St. Augustine, 235 So.2d 1, 3 (Fla.1970), where it noted in dicta that “the better procedure [rather than raising the issue in the validation proceeding] would be for the elector to question the sufficiency of the ballot in appropriate proceedings before — not after — the election has been held and the results proclaimed.” (Footnote omitted.)

The Brandon and City of St. Augustine decisions found no violation of the single-purpose rule, and so there was no need to address the issue now before us, which is whether a challenge in the validation proceeding based on the single-purpose rule can be sustained. However, this Court has on repeated occasions found that pre-election irregularities do not necessarily require invalidating an election. An early indication of the Court’s reluctance to invalidate elections came in State ex rel. Smith v. Burbridge, 24 Fla. 112, 130, 3 So. 869, 877 (1888), where the Court held that the “disposition and duty of courts are to sustain popular elections whenever they have been free and fair, and it is clear that the voters have not been deprived of their right to vote, and the result has not been changed by irregularity.” A more definitive standard was stated in Carn v. Moore, 74 Fla. 77, 88-89, 76 So. 337, 340 (1917): “Republics regard the elective franchise as sacred, and the courts should not set aside an election because some official has not complied with the law governing elections, where the voter has done all in his power to cast his ballot honestly and intelligently, unless fraud has been perpetrated or corruption or coercion practiced to a degree to have affected the result.” (Emphasis added.) See also Marler v. Board of Public Instruction of Okaloosa County, 197 So.2d 506, 508 (Fla.1967) (challenge to sufficiency of notice of bond referendum not grounds to invalidate election because “the violation of [statutory provisions for notice of election] cannot affect the validity of an election nor the result thereof where such election has been fairly held and there is no charge of fraud, corruption or coercion that is alleged to have affected the result thereof.” (footnote omitted)).

In preserving elections in the face of post-election challenges to pre-election irregularities, this Court has found that a party is estopped from voiding an election where he was on notice of the irregularity before the election. “The aggrieved party cannot await the outcome of the election and then assail preceding deficiencies which he might have complained of to the proper authorities before the election.” Pearson v. Taylor, 159 Fla. 775, 776, 32 So.2d 826, 827 (1947) (post-election challenge to sufficiency of petition which lead to election). See also State ex rel. Robinson v. North Broward Hospital District, 95 So.2d 434 (Fla.1957) (failure to advertise bond referendum for full thirty days before election not grounds to invalidate election where no attack was made before election, no one claimed denial of right to vote, and no fraud was charged); McDonald v. Miller, 90 So.2d 124, 129 (Fla.1956) (losing candidate, fully aware of blatant pre-election irregularities, barred from raising those irregularities as grounds to invalidate election: “One cannot stand by with full knowledge and acquiesce in this type of conduct prior to an election and then, after being disappointed by the results, successfully overturn the election.”); Nelson v. Robinson, 301 So.2d 508 (Fla. 2d DCA), cert. denied, 303 So.2d 21 (Fla.1974) (losing candidate’s challenge to name placement on the ballot may have been enforceable before election, but not after); Speigel v. Knight, 224 So.2d 703, 706 (Fla. 3d DCA 1969) (“A different rule applies to technical or procedural irregularities which occur and are challenged prior to a general election than to those which are discovered and challenged after the general election, in the absence of corruption or fraud or a statutory penalty requiring an ouster of the elected official or a vacancy in the office.”).

In the case before us, Winterfield’s challenge is based on a bare assertion that the bond referendum violated the single-purpose rule. No substantial assertion is made that violation of the rule constituted fraud, corruption or coercion, or that the violation affected the result of the election. In fact, a strong majority of the voters favored the bond issue, and the record fails to show any substantial controversy which would indicate that any one of the projects was more or less popular or necessary than the others. The multiple purposes of the proposed bond issue were clear on the face of the notice of election and the ballot, and any one wishing to challenge on the point now raised could have made the attack before the election. No constitutional or statutory provision requires invalidating an election under these circumstances.

We therefore hold that violation of the single-purpose rule under the circumstances presented in this case does not require invalidation of the election.

II. PROCEDURAL IRREGULARITY

Winterfield’s second challenge in the validation proceeding centered on discrepancies in the description of the police facility project in documents related to the bonding process. The city had purchased the land for the police facility some time before the bond referendum. The proposed text for the referendum ballot embodied in the original town council resolution initiating the bonding process failed to mention that some of the bond revenue would be used to reimburse the city for the prior expenditure for land. Later official notices and the ballot itself referred to “acquisition of land for and construction of a police facility.”

Where discrepancies on a bond referendum ballot mislead the voters, or fail to adequately inform them of the project, the ballot is subject to invalidation. See Grapeland Heights Civic Association v. City of Miami, 267 So.2d 321 (Fla.1972). We find no basis for applying this principle in this case. The title of the original resolution included reference to acquiring land for the police facility, as did all subsequent notices and resolutions and the ballot itself. The prior purchase of the land was a matter of public record, and information leaflets prepared by the town explaining the referendum outlined the situation.

III. THE VALIDATION HEARING'

Besides the two issues raised before the circuit court, appellant also urges on appeal that the circuit court denied him due process and showed bias in the way he was treated during the hearing. The record shows that appellant first filed a pleading in the validation proceedings on the morning of the hearing, styled “Answer of In-tervenor.”

Winterfield complains that several irregularities occurred before and during the hearing because he was not granted inter-venor status until the end of the hearing, and that at one point the judge demonstrated bias by speaking to him condescendingly. Our review of the record convinces us that the trial judge acted reasonably in light of the last-minute nature of appellant’s appearance.

Accordingly, we affirm the judgment of validation of the circuit court.

It is so ordered.

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

      . Grapeland Heights Civic Association v. City of Miami, 267 So.2d 321 (Fla.1972) (recreational facilities in two areas of the city); State v. City of St. Augustine, 235 So.2d 1 (Fla.1970) (conversion of building to city hall and fire station with related expenses); State v. County of Dade, 125 So.2d 833 (Fla.1960) (highway projects); State v. Dade County, 39 So.2d 807 (Fla.1949) (five bridges); State v. City of Daytona Beach, 160 Fla. 13, 33 So.2d 218 (1948) (city recreation facilities); State ex rel. Wilkes v. Brandon, 92 Fla. 793, 110 So. 127 (1926) (waterworks and sewers); Lewis v. Leon County, 91 Fla. 118, 107 So. 146 (1926) (county-wide road projects).

        . We also note that even a pre-election challenge must be filed in a timely manner to allow adequate judicial review before the election. Cf. State ex rel. Pooser v. Wester, 126 Fla. 49, 170 So. 736 (1936), where a contest of a primary election was barred after the contestant waited more than four months, until less than one month before the general election, to make the challenge.


source: Caselaw Access Project

author: OVERTON, Justice. ADKINS, Justice,

license: Public Domain

text:
    P.L.R., a child, Petitioner, v. STATE of Florida, Respondent.
    No. 64264.
    Supreme Court of Florida.
    July 19, 1984.
    Rehearing Denied Oct. 4, 1984.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for respondent.
   OVERTON, Justice.

This is a petition to review a decision of the Fourth District Court of Appeal reported as In the Interest of P.L.R., 435 So.2d 850 (Fla.4th DCA 1983), in which the district court certified that its decision was in direct conflict with Thompson v. State, 405 So.2d 501 (Fla.2d DCA 1981); Carr v. State, 353 So.2d 958 (Fla.2d DCA 1978); and Harris v. State, 352 So.2d 1269 (Fla.2d DCA 1977). We have jurisdiction, article V, section 3(b)(4), Florida Constitution.

The question presented concerns the propriety of a search and seizure and requires us to determine whether the observation of a manila envelope, of a type usually used for marijuana transactions, in the pocket of a juvenile at a known drug-transaction site provides sufficient probable cause to arrest the juvenile and conduct a search incident to that arrest. The district court found that there was sufficient probable cause. We agree. In so holding, we do not disapprove Thompson, Carr, or Harris because we find the facts and circumstances of those cases to be distinguishable.

The record in this case reflects the following. There was an unrelated drug arrest in an area of Pompano Beach known by law enforcement officials as a narcotic and marijuana trafficking site. The petitioner was with a group of youths who approached one of the arresting officers to ask about the arrest. The officer noticed that one of petitioner’s sweatshirt pockets was bulging open to reveal a small manila envelope. The officer removed the envelope from the boy’s sweatshirt, detected the smell of marijuana, and opened the envelope. Upon finding a “green vegetable matter” in the envelope that appeared to be marijuana, the officer placed the petitioner under formal arrest. Petitioner was then taken to the police station and, during a subsequent search, a clear baggie was found in his sock. Initial tests performed on the contents of both the envelope and the baggie were positive for marijuana. A forensic chemist’s subsequent analysis, however, indicated that only the baggie contained marijuana.

The arresting officer testified at trial that he had seen petitioner in the drug-trafficking area before. The officer also testified that the kind of envelope taken from petitioner’s pocket was “of the type commonly used in that area ... [for] what they call a nickel bag of marijuana .... This is, in fact, the only use I've ever seen these envelopes put to.” He further testified that he had seen these envelopes used as nickel bags in excess of one hundred times and that ninety percent of the envelopes he had seen were in this particular area.

The trial court denied petitioner’s motion to suppress the marijuana on the grounds of an illegal arrest and search, found the petitioner guilty of possession of marijuana, and adjudicated him delinquent.

The district court affirmed the trial court’s determination that there had been a valid arrest and search. The court held that “the observance of a container known to police officers to frequently contain marijuana, when considered together with certain other circumstances, is sufficient to constitute probable cause to conclude that the envelope does contain marijuana.” 435 So.2d at 852. The district court concluded that the initial search was incident to a lawful arrest and that the subsequent seizure of the baggie was valid.

The cases cited for conflict have similar, but not identical, controlling facts. In Thompson, an officer was called to a lounge by the lounge bouncer. The bouncer advised the officer that, two nights before, the defendant had been involved in an altercation with a customer who had reported to the bouncer that the defendant was carrying a gun in a shaving case. The bouncer was concerned because the defendant had come back to the bar with a small shaving case. As the officer and the bouncer talked, the defendant left the bar. The officer followed him outside and asked him for identification. The defendant replied that it was in his case which he placed on the hood of an automobile. The officer felt the outside of the case and, when he did not detect the presence of a weapon, allowed the defendant to put his hand inside to retrieve the identification. As the defendant took his billfold from the case, a small brown manila envelope fell onto the hood of the car and then onto the ground. The officer picked it up, opened it, and found marijuana inside. A subsequent search of the shaving ease also revealed cocaine. The issue was whether the officer had a right to look into the manila envelope which fell out of the shaving case. The district court determined that the issue involved probable cause and, since the officer “did not say that before he opened the envelope he believed that it contained marijuana, nor did he articulate any facts upon which he could have predicated such a belief,” 405 So.2d at 503, the circumstances did not establish probable cause. The district court concluded, therefore, that the trial court should have granted the defendant’s motion to suppress.

In Carr, the district court reversed a search and seizure as being invalid under the plain view exception. The defendant in Carr was questioned regarding his presence in a residential area. The defendant was outside his vehicle, having given proper identification as requested by the officer. The officer shined his flashlight into the vehicle “to check the interior.” He observed two handrolled cigarettes and proceeded to enter the vehicle to seize them. The officer testified that he “knew” that they were marijuana cigarettes because they were unevenly rolled and twisted at the end. The evidence reflected, however, that the officer could not actually see any marijuana. The district court rejected the contention that the plain view exception should apply because “there was no contraband in plain view, merely two cigarettes.” 353 So.2d at 959.

In Harris, the Second District rejected a finding of probable cause where the officer had approached the defendant after observing him put a rolled-up plastic bag in his pocket. The officer got out of the patrol car, pulled the plastic bag from appellant’s pocket, and arrested him for possession of marijuana although he did not see what the plastic bag contained until he removed it. There was no question that the initial search was not incident to a lawful arrest. The court held that the officer had, at most, a mere suspicion that the bag contained marijuana and that mere suspicion alone did not support a finding of probable cause.

The Second District distinguishes these three decisions from its decision in State v. Redding, 362 So.2d 170 (Fla. 2d DCA 1978), which approved a warrantless seizure of small tinfoil packets found to contain phen-cyclidine. In Redding, the officers were investigating a citizen’s complaint that a nude male was running around a car parked on the street. When the officers arrived, they found the defendant lying fully exposed on the front seat of the car. At this point, the officers clearly had probable cause to arrest the defendant for indecent exposure. When the officers ordered the defendant out of the car, the defendant opened the door and an interior light came on. The officers then sighted several small, flat, tinfoil packets inside the defendant’s shoes which were placed on the back seat of the car. The officer testified that, based on his long experience as an undercover officer, he believed that the packets contained either heroin or cocaine. He stated that he knew narcotics were customarily carried in this type of container. The court, in Redding, distinguished the decision in Carr on the facts, finding the differences between handrolled cigarettes and tinfoil packets to be dispositive.

In the instant case, the district court relied upon this Court’s decision in Albo v. State, 379 So.2d 648 (Fla.1980), where we held that an officer’s warrantless seizure of marijuana from a motor home was based upon probable cause. The officers in Albo had approached the motor home after observing the driver commit several traffic infractions. Inside the motor home were thirty-five to forty square bales wrapped in black plastic and burlap. We held that “[gjiven his experience [as a narcotics investigator] plus the defendant’s failure to produce the vehicle’s registration and the fact that the rear end of the motor home looked weighted down, the circumstances support [the officer’s] determination that the bales were marijuana.” 379 So.2d at 650. We determined that these facts established sufficient probable cause for the officer to believe that a criminal offense was being committed.

We find, as did the district court, that the situation presented in the instant case is more like Redding and Albo than Thompson, Carr, and Harris. We agree with the state that the totality of the circumstances in the Thompson, Carr, Harris trilogy failed to give rise to probable cause prior to the searches and that there is a distinction between those cases and the present case. Specifically, in the instant case, the officer was at a narcotics transaction site, making a narcotics arrest, when he observed the envelope in the defendant’s pocket. He testified that the only thing he had ever seen these envelopes used for at this location was narcotics transactions. We recognize that this is a fine line but we distinguish rather than disapprove Thompson, Carr, and Harris, primarily on the basis that there was no evidence that the searches and seizures in those cases occurred at narcotics-transaction sites where the type of container seized was utilized as a principal means to convey narcotics.

We find that the officers in the instant case had probable cause to make the arrest. The subsequent search incident to that arrest was, therefore, valid. We approve the decision of the district court in the instant case and distinguish Thompson, Carr, and Harris.

It is so ordered.

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

ADKINS, J., dissents with an opinion.

ADKINS, Justice,

dissenting.

I dissent.

The critical question in this case is whether there was probable cause for the officer to make an arrest so that there could be an incident search. The majority says that the officer was at a narcotics transaction site, making a narcotics arrest, when he observed the manila envelope in defendant’s pocket. The officer testified that the only thing he had ever seen these envelopes used for at this location was narcotics transactions. This does not raise his suspicion to the level of probable cause.

In Carr v. State, 353 So.2d 958 (Fla. 2d DCA 1978), the court held that a policeman does not have the right to seize a hand-rolled cigarette without a warrant simply because it is suspected that it contains marijuana. Certainly a hand-rolled cigarette is more apt to contain marijuana than a manila envelope.

In Harris v. State, 352 So.2d 1269 (Fla.2d DCA 1977), the officer observed defendant and companion in the area of a highway ramp. As a vehicle approached, the officer suspected that defendant was about to hitchhike. He was seen carrying a brown paper sack. As the officer approached, the defendant was observed putting a rolled up plastic bag in his pocket and his companion left. The officer suspected the plastic bag contained marijuana. He got out of his patrol car, pulled the plastic bag from the defendant's pocket, and arrested him for possession of marijuana. In reversing the conviction, the court said:

The fact that the officer knew that marijuana was commonly carried in plastic bags gave rise to, at most, a mere suspicion that the bag appellant was seen putting into his pocket contained marijuana.'
Thus, the marijuana found in appellant’s pocket as a result of illegal search should be suppressed. The marijuana found in the brown paper sack and the marijuana received at the police station, obtained as a result of an illegal arrest, is also inadmissible. See State v. Lundy, 334 So.2d 671 (Fla.4th DCA 1976).

Id. at 1270 (emphasis added).

The search was held illegal in Thompson v. State, 405 So.2d 501 (Fla.2d DCA 1981). The majority opinion emphasizes the fact that the officer in Thompson did not say, before opening the envelope, he believed that it contained marijuana. The majority opinion holds that the search in the instant ease was lawful because the officer testified that the only thing he had ever seen these manila envelopes used for at this location was narcotics transactions. Discussing manila envelopes, the court in Thompson v. State said:

[I]t cannot be said that most brown manila envelopes contain marijuana. There could have been any number of items in the envelope other than marijuana which appellant would wish to keep private. Legally, the conduct of appellant in trying to hide the envelope was no different tha[n] if he had simply told the officer that he did not want him to look into it without a search warrant.
The issue is still probable cause.

405 So.2d at 503 (emphasis added).

The correct principle is followed in People v. Corrado, 22 N.Y.2d 308, 239 N.E.2d 526, 292 N.Y.S.2d 648 (1968). In this case the police observed four opaque manila envelopes being passed from one individual to another in a car. The court held that this did not constitute probable cause to believe that a marijuana transaction had taken place. The police were present at the location as a result of an anonymous tip that a sale of marijuana would occur at that time and place. They observed a car drive up carrying three young people. One of them emerged from the car, walked over to another vehicle, was seen to bend down and then returned to the first ear. He handed four manila envelopes to the occupants of the first car and walked away. The police moved in and arrested the two men. Inspection of the manila envelopes revealed marijuana. To justify the arrest, one of the arresting officers testified that he had extensive narcotic experience and training and small quantities of loose marijuana were invariably packaged in such brown manila envelopes. In holding the search unlawful, the court said:

[T]he envelopes could have contained any number of contraband items. This is in sharp contrast to the translucent envelope which has come to be accepted as the telltale sign of heroin. Still, even in the ease of the glassine envelope it has never been held that the mere passing of such an envelope establishes probable cause. We conclude, therefore, that the testimony concerning the use of these common envelopes for marijuana does not raise the level of inference from suspicion to probable cause.
In reaching our conclusion, we have not retreated in any manner from our prior decisions that a police officer is entitled to draw on his whole knowledge and experience as a criminal investigation officer. Thus, where a layman would see absolutely nothing suspicious about the envelopes and the events preceding the arrests, the officer was surely entitled to use his expertise to the contrary. It does not follow, however that the officer is entitled to draw the inference of criminality when others, possessed of the same special knowledge or expertise, would not (see Henry v. United States, 361 U.S. [98] 102, 80 S.Ct. 168 [171, 4 L.Ed.2d 134]; Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302 [1310] 93 L.Ed. 1879).

22 N.Y.2d at 313-14, 239 N.E.2d at 529, 292 N.Y.S.2d at 652 (citations omitted) (footnote omitted).

The majority opinion pays lip service to Thompson, Carr, and Harris and attempts to draw a distinction between this case and those when, in fact, there are no distinctions. There was no probable cause for the officer to remove the manila envelope from the pocket of the defendant.

After the envelope was removed there was no probable cause to authorize the officer to open the manila envelope. In Mancini v. State, 448 So.2d 573 (Fla. 1st DCA 1984), a reliable informant notified the officer that defendant, within an hour, would be picking up a package of cocaine from the federal express office. The officer set up a surveillance of defendant who was observed speeding to the federal express office in his automobile. Shortly thereafter he was seen exiting the office with a federal express package, entering his automobile and driving away. The officer stopped the defendant’s automobile and advised him that he was under investigation for trafficking in cocaine and then proceeded to search the automobile. After removing the federal express package, the officer opened it and discovered a substance which later proved to be cocaine. The court held that defendant was entitled to an order granting his motion to suppress directed to the contraband found in the federal express package. The court said:

With respect to the cocaine found in the Federal Express package, the state urges that United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), is supportive of the trial court’s denial of the defendant’s motion. The state’s reliance on Ross, however, is misplaced. Although the officers clearly had probable cause to believe that the defendant was in the process of transporting cocaine in his automobile at the time the officers stopped him, it is equally clear that the probable cause was limited to the Federal Express package as contrasted with the automobile generally. Under these circumstances, the Supreme Court has interpreted the Fourth Amendment as requiring the officers to obtain a search warrant authorizing the opening and searching of the container. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). In Ross the court held that police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere therein may conduct a warrantless search of the vehicle and may open any containers which may contain the contraband. Significantly, however, the court was careful to point out the distinction between the situation where, as in Ross, the probable cause information was that the contraband was somewhere within the automobile and the situation, as in Sanders, where probable cause was limited to a container within the automobile.

The officer may have had a right to stop the defendant for questioning, but under the reasoning in Mancini as well as Thompson, the officer had no probable cause to open the envelope.

We cannot ask a juvenile to respect the law when the courts fail to respect the constitutional rights of people. Convicting a defendant by disregarding his constitutional rights is equivalent to a “legal lynching” without benefit of white hoods and robes.

In my opinion the decision of the district court of appeal should be quashed.


author: PER CURIAM.

text:
    Martin GREENBAUM, Petitioner, v. George FIRESTONE, Secretary of State, and Sam Silver, Circuit Court Judge, Respondents.
    No. 65677.
    Supreme Court of Florida.
    Aug. 28, 1984.

      Bruce S. Rogow, Fort Lauderdale, for petitioner.
    Jim Smith, Atty. Gen., Mitchell D. Franks, Chief Trial Counsel and Bruce A. Minnick, Asst. Atty. Gen., Tallahassee, for George Firestone.
    Marion E. Sibley, Miami Beach, for Sam Silver.'
   PER CURIAM.

This cause is before us on a petition for a writ of mandamus or, in the alternative, for quo warranto. We have jurisdiction. Art. V, § 3(b)(8), Fla.Const.

Respondent Silver is an incumbent circuit judge in the Eleventh Judicial Circuit who has filed as a candidate for reelection in the September, 1984, judicial election. Respondent Silver became seventy years of age in September, 1983. Respondent Firestone, acting in a purely ministerial capacity, has certified respondent Silver as a candidate in the forthcoming election. Petitioner Greenbaum is also a candidate for the circuit judgeship currently held by respondent Silver. In his capacity as a candidate and as a citizen taxpayer, petitioner Greenbaum contends that respondent Silver’s candidacy violates article V, section 8 of the Florida Constitution which provides in pertinent part:

No justice or judge shall serve after attaining the age of seventy years except upon temporary assignment or to complete a term, one half of which he has served.

Respondent Silver was a municipal judge from 1949 to July, 1972, at which time he was appointed to a circuit judgeship and, subsequently, in September, 1972, elected to a six-year term commencing January, 1973. It is respondent Silver’s position that he is exempted from the mandatory retirement age provisions of article V, section 8 because of article V, section 20(e)(2) which provides:

No justice or judge holding office immediately after this article becomes effective who held judicial office on July 1, 1957, shall be subject to retirement from judicial office because of age pursuant to section 8 of this article.

Petitioner denies that a municipal judge is a judicial office and cites article X, section 12(f) which stipulates:

The terms “judicial office,” “justices” and “judges” shall not include judges of courts established solely for the trial of violations of ordinances.

Respondent counters with case law holding that municipal judges are judicial officers. Moreover, respondent urges, article X, section 12(f), adopted in 1968 as part of the Constitution of 1968, excludes article V from its operation. Thus, in respondent’s view, the definition of judicial office in article X, section 12(f) is nonapplicable. In sum, it is respondent’s position that because he was a municipal judge in 1957, he cannot be required to retire as a circuit judge in 1984.

Respondent misapprehends the purpose and the provisions of article V, section 20(e)(2), Florida Constitution. This “grandfather” clause protects incumbents from a change in the law which they could not have foreseen when they entered into their judicial offices. The judicial office held in July, 1957, which is exempted from mandatory retirement, must be the same office held when the mandatory retirement age is reached. Article V, sections 8 and 20(e)(2) were adopted at a special election on March 14, 1972, prior to respondent Silver’s appointment to a circuit judgeship. Thus, before entering or seeking office, respondent was aware of the mandatory retirement age. Further, since the original appointment and election in 1972, respondent has sought and obtained reelection in 1978. As we said in State ex rel. Judicial Qualifications Commission v. Rose, 286 So.2d 562, 564 (Fla.1973):

It is clear that the Constitution means that a judge who has entered by appointment or election to a judgeship knowing that he msut retire at age seventy shall do so. This requirement is legally and morally certain. However, it is a different situation where a judge elected to a judgeship and commissioned for a four-year term has no foreknowledge at that time from then existing constitutional language that he will be compelled to retire at seventy.

Respondent Silver’s circumstances place him in the former category. He is not eligible for an exception to the mandatory retirement provision of the constitution.

The peremptory writ of mandamus should be issued. Because we believe the respondents will comply with this decision, we withhold issuance of the writ of mandamus at this time.

It is so ordered.

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

      .Respondent Firestone correctly professes no interest in the outcome of the dispute other than its resolution prior to the upcoming election.

      . Farragut v. City of Tampa, 156 Fla. 107, 22 So.2d 645 (1945); McDaniel v. Harrell, 81 Fla. 66, 87 So. 631 (1921).

      . The predecessor of article V, section 20(e)(2), article V, section 26(13) of the Constitution of 1885, provided in pertinent part:

        The provision for automatic retirement ... does not apply to any person now holding office.

      . We do note that certain expressly designated courts were grandfathered by constitutional consolidation as set forth in article V, section 20(d)(2), but that circumstance is not present in this case.


text:
    Nollie Lee MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 65788.
    Supreme Court of Florida.
    Aug. 28, 1984.

      Richard L. Jorandby, Public Defender, Fifteenth Judicial Circuit, Craig S. Barnard, Chief Asst. Public Defender, Richard H. Burr, III, West Palm Beach, of counsel, and Cherry Grant, Richard B. Greene, Michael A. Mello and Thomas F. Ball III, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen. and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

A jury convicted Martin of first-degree murder, and the trial court sentenced him to death. We affirmed both the conviction and sentence. Martin v. State, 420 So.2d 583 (Fla.1982), cert. denied, 460 U.S. 1056, 103 S.Ct. 1508, 75 L.Ed.2d 937 (1983). On August 8,1984 the governor signed a death warrant on Martin, effective for the week of August 31 through September 7, 1984. Martin then filed a Florida Rule of Criminal Procedure 3.850 motion with the trial court. After holding a status conference on the matter, the trial court denied the motion without holding an evidentiary hearing and refused to vacate the judgment and sentence. Martin raised two points before the trial court and now contends that that court erred in denying relief.

At trial Martin depended on an insanity defense. To the end of demonstrating his competency or lack thereof, the court appointed four experts (three psychiatrists and one psychologist) to examine Martin. Besides these persons, a psychologist associated with one of the appointed psychiatrists, a fourth psychiatrist, and a neurologist also examined Martin. These doctors’ opinions ranged from Martin's being insane when he confessed but competent to stand trial, to being both insane and incompetent, to being both sane and competent, to Martin’s being a complete fake. After examining Martin, the neurologist opined that, although Martin had some brain damage, that damage was insignificant. Prior to trial, therefore, seven experts had examined Martin with the court’s approval.

Shortly before trial yet another psychologist interviewed Martin. Defense counsel sought appointment of this person as an expert in order to rebut one of the other expert’s opinion that Martin was merely faking insanity. The trial court, finding seven experts sufficient, refused. On appeal this Court found no merit to Martin’s claim that the trial court erred in not appointing this psychologist.

Now Martin again claims that the trial court erred in refusing to appoint this expert, but for a different reason. Now, according to Martin, this excluded psychologist would have testified that he, Martin, had severe brain damage. This would have contradicted the neurologist’s findings and undermined the other experts’ opinions based on those findings. By refusing to appoint this expert, the trial court forced Martin, an indigent, into an untenable position because he himself could not pay for this expert and could only gain the benefit of this testimony through court appointment. Therefore, Martin now claims that the trial court impermissibly precluded his presentation of an adequate defense.

The trial court found the instant claim controlled by the doctrine of res judicata because this Court ruled on the appointment of this last expert on appeal. Martin, on the other hand, argues that the issue raises a question of fundamental fairness which must be addressed and cites Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), although he makes no claim of ineffective assistance of counsel. We have previously found similar claims regarding court-appointed experts to have no merit. Elledge v. Graham, 432 So.2d 35 (Fla.), cert. denied, — U.S. —, 104 S.Ct. 436, 78 L.Ed.2d 368 (1983); Booker v. State, 413 So.2d 756 (Fla.1982).

The appointment of experts is discretionary. § 914.06, Fla.Stat. (1983). The test for overturning a trial court ruling on appointing an expert is whether there has been an abuse of discretion. On the original appeal we found no abuse of discretion, and we find none here.

Martin’s claim that the unappointed expert would have completely undermined the neurologist’s findings and the testimony based on those findings is purely speculative. At best this expert’s testimony would have given the jury and judge one more bit of information to be considered and weighed along with the other experts’ testimony and the proof that Martin was, at best, a murderer and rapist who committed the instant crime while on parole. The trial judge was liberal in appointing and approving physicians for Martin, and our review convinces us that Martin suffered no undue prejudice from, and that the trial court committed no abuse of discretion by, denying the appointment of this expert. We see no reason to abridge the doctrine of finality in this instance because we do not believe that this psychologist’s testimony would have produced more fairness and uniformity. See Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980).

Martin’s second point is that the trial court erred by failing to find that the death penalty is imposed in Florida in an arbitrary and discriminatory manner based on the race of the victim and the defendant, the location of the crime, and the sex of the defendant. We have recently rejected this claim, State v. Washington, 453 So.2d 389 (Fla.1984), and cases cited therein, and Martin has presented nothing which would compel reconsideration of this issue.

Although we encourage trial courts to hold evidentiary hearings in rule 3.850 proceedings, Jones v. State, 446 So.2d 1059 (Fla.1984), the trial court did not err in denying Martin’s motion without such a hearing. We therefore affirm the trial court’s order denying the motion to vacate judgment and sentence. We also deny the stay of execution. No petition for rehearing will be entertained by this Court.

It is so ordered.

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

      . Martin had sought the services of the neurologist whose conclusions he now seeks to attack.

      . Martin cites several cases to support his claims, but we find his reliance on them misplaced. Unlike in McMillian v. State, 411 So.2d 1372 (Fla. 5th DCA 1982), Martin’s allegations are not sufficient to withstand a summary denial. Our analysis and resolution of this case likewise give no relief under Smith v. State, 400 So.2d 956 (Fla.1981). Finally, although the United States Supreme Court has granted certiorari (— U.S. —, 104 S.Ct. 1591, 80 L.Ed.2d 123 (1984)) in Ake v. State, 663 P.2d 1 (Okla.Crim.App.1983), Ake appears to be factually distinguishable because Oklahoma, evidently, “does not have the responsibility of providing such services [court-appointed experts] to indigents charged with capital crimes.” Id. at 6.


author: PER CURIAM. OVERTON, Justice,

text:
    Dean FORSBERG and Walter Freeman, Appellants, v. The HOUSING AUTHORITY OF the CITY OF MIAMI BEACH and Murray Gilman, Executive Director, Appellees.
    No. 54623.
    Supreme Court of Florida.
    Aug. 30, 1984.
    Lester C. Wisotsky, Legal Services of Greater Miami, Inc., Miami, for appellants.
    Jim Smith, Atty. Gen., and Mitchell D. Franks, Chief Trial Counsel, Tallahassee, and John A. Ritter, City Atty., and Thomas M. Pflaum, Asst. City Atty., Miami Beach, for appellees.
   PER CURIAM.

Dean Forsberg and Walter Freeman, tenants in public housing operated by the Miami Beach Housing Authority, filed a class action seeking to enjoin the housing authority from allowing public access to information provided by public housing te.nants and prospective tenants. The circuit court granted the housing authority’s motion to dismiss, finding that chapter 119, Florida Statutes (1977), violated neither article I, section 2 of the Florida Constitution nor the first, fourth, fifth, ninth, or fourteenth amendments to the federal constitution and that the complaint failed to state a cause of action. Forsberg and Freeman appealed the dismissal prior to the 1980 jurisdictional amendment, and we have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution (1972).

We agree with the circuit court. Florida’s stated policy is that public records are open for personal inspection. § 119.01. The housing authority is an agency whose records are public. § 119.011. This case, therefore, deals solely with access to public records.

While certain records are statutorily exempted from the public’s right to inspect, section 119.07, our examination of the statutes has brought to light no exemption pertaining to the records involved in this appeal. See Rose v. D’Alessandro, 380 So.2d 419 (Fla.1980); Wait v. Florida Power & Light Co., 372 So.2d 420 (Fla.1979). There is, likewise, no state constitutional right of privacy which would shield these records. Prior to the addition of article I, section 23 to the state constitution, this Court had refused to find a general right of disclosural privacy provided for in that document. Shevin v. Byron, Harless, Schaffer, Reid & Associates, Inc., 379 So.2d 633 (Fla.1980). Moreover, adoption of the privacy amendment offers no relief in this case because section 23 specifically does not apply to public records: “This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.” There is also no per se federal constitutional right to disclosural privacy, but, rather, a balancing test is used on a case-by-case basis. See Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977); Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977); Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); Shevin v. Byron, Harless.

The legislature has clearly stated that public records shall be open for public inspection. Just as clearly, the instant records are public records. There is no exemption, nor is there a constitutional right of privacy, which prevents their inspection. Any change, exception, or modification must, of necessity, come from the legislature. Wait. We therefore affirm the circuit court’s order.

It is so ordered.

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

OVERTON, J., concurs specially in result with an opinion.

ADKINS, J., concurs in result only.

OVERTON, Justice,

specially concurring in result.

I concur in the result. The issues, in my view, need to be addressed more definitively. The majority opinion has failed to properly apply the balancing test dictated by the United States Supreme Court decisions in Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), and Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). As will be explained, this abdicates our responsibility on this issue to the federal courts and could adversely affect our public records and public meeting law. I am also concerned that we have not applied a balancing test I believe is required by the right of privacy provision contained in article I, section 23, of the Florida Constitution. Finally, I find that we should explain why we cannot address in this case the assertion that this Court should protect the privacy of the poor who must use public facilities such as public housing or hospitals.

This concurring opinion requires a more detailed explanation of the circumstances of this cause. The facts, as alleged in the complaint, reflect that Forsberg and Freeman are indigent tenants in public housing. They, and each member of the class they represent, allegedly submitted

information of a personal and confidential nature concerning their family status and relationship, income, expenses, assets, employment and medical history, as a condition to obtaining decent, safe and sanitary housing at a price that they could afford.

(Emphasis added.) As a result, appellants assert that they

will suffer humiliation and embarrassment, needless invasion of their personal privacy, denial of their right to be let alone, harassment and other adverse consequences, if information concerning their personal lives is subject to public inspection, resulting in public knowledge about files showing their income, assets, bank accounts, medical histories, and other matters of a personal nature.

In Count I of the complaint, appellants claim that the policy of releasing tenant files to the general public pursuant to section 119.01, Florida Statutes (1977), violates the right of privacy implicit in article I, section 2, of the Florida Constitution; Count II claims a violation of the first, fourth, fourteenth amendments of the United States Constitution inasmuch as the information relates to private marital and family matters; Count III claims that allowing public inspection of personal, intimate information absent a showing of need is void as against public policy; and Count IV claims that releasing intimate personal information for general public inspection simply because an individual has made an application for public housing violates due process of law as guaranteed by the fourteenth amendment of the United States Constitution.

The trial judge granted a motion to dismiss and expressly held that

Chapter 119, Florida Statutes, as applied to the subject tenant files is valid and does not violate Article I, Section II of the Florida Constitution ... [and] does not violate the First, Fourth, Fifth, Ninth or Fourteenth Amendments to the Constitution of the United States .... [P]ublic policy does not mandate that such records be deemed confidential or excepted from Chapter 119, Florida Statutes ....

While this appeal was pending before this Court, the Florida Legislature proposed, and the electorate adopted, a state constitutional right-of-privacy provision contained in article I, section 23, Florida Constitution, effective January 1, 1981. This Court then directed the parties to file supplemental briefs addressing the new provision’s effect on the issues presented in this cause.

At the outset it must be recognized that the question presented by the complaint in this case does not concern records in which there is traditionally no expectation of privacy, e.g., court files and public documents such as deeds, judgments, and marriage records. Without question, the records in issue in the instant case are of such a personal, intimate nature that they generally are not considered public. They allegedly include detailed medical information and financial information concerning the tenants.

In summary, I would affirm the trial judge’s dismissal of appellants’ complaint and find that (1) the housing authority may require an applicant for public housing to submit personal information which is necessary to determine the applicant’s qualifications; (2) this information, because it is not exempted from disclosure by statute, must be available for public examination to ensure public accountability of the housing authority and its officers; and (3) Florida’s constitutional right of privacy does not prohibit the disclosure of tenant files necessary to promote this state’s policy of holding governmental agencies, their officials, and their employees publicly accountable. Because the proper parties and facts are not before this Court, I would not address the issue of whether a civil action for invasion of privacy could be maintained against persons who use personal, intimate information contained in tenant files for strictly private purposes totally unconnected with governmental accountability, but would recognize that this could be a justiciable issue in a future proceeding. I find it is extremely important to explain the appropriateness of the balancing test in this cause. To do so, it is necessary to discuss the various separate aspects of the right of privacy, the public’s right to open government and public records, and the applicability of these rights to the instant case.

I. RIGHT OF PRIVACY

The term “right of privacy” applies to various personal rights which are not necessarily interrelated or derived from the same source. The term has three distinct meanings, depending upon the category of privacy law invoked: (1) the basis for an invasion of privacy civil action under tort law; (2) a federal constitutional right against governmental intrusion; and (3) a state constitutional or statutory right against either governmental or private intrusion.

Privacy as a Basis for Tort Action

The first category concerns a wrongful intrusion into the privacy of another, which is remedied through civil tort action. The concept of a privacy tort originated with a phrase coined by Thomas M. Cooley: “The right to one’s person may be said to be a right of complete immunity: to be let alone.” T. Cooley, supra note 1, at 29 (emphasis added). Samuel Warren and Louis Brandéis later applied this phrase to existing legal principles and developed the concept of “the right of privacy.” Warren & Brandeis, supra note 1. Presently, “the [tort] law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff ‘to be let alone.’ ” W. Prosser, supra note 1, at 804. The four interests are: (1) appropriation — the unauthorized use of a person’s name or likeness to obtain some benefit; (2) intrusion — physically or electronically intruding into one’s private quarters; (3) public disclosure of private facts — the dissemination of truthful private information which a reasonable person would find objectionable; and (4) false light in the public eye — publication of facts which place a person in a false light even though the facts themselves may not be defamatory. See id. at 802-18; Restatement (Second) of Torts §§ 652B-652E (1976). This Court, following the majority rule, has expressly recognized a right to sue in tort for the civil wrong of “invasion of privacy.” Cason v. Baskin, 155 Fla. 198, 20 So.2d 243 (1944).

The Federal Constitutional Right of Privacy

The second category is the federal constitutional right of privacy from unjustified governmental intrusion. The United States Supreme Court has established a fundamental constitutional right of privacy in a number of specific circumstances. In so doing, the Supreme Court separated fourth amendment privacy interests and privacy rights arising under the first, ninth, and fourteenth amendments. Compare Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (warrant required before government could wiretap defendant’s telephone booth because “Fourth Amendment protects people, not places”), and Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (principal objective of fourth amendment is protection of privacy rather than property), with Moore v. East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (zoning ordinance which effectively prohibited woman and her grandson from inhabiting same dwelling violated fourteenth amendment due process), Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (fourteenth amendment right of privacy extended to pregnant woman’s decision to abort), and Griswold v. Connecti cut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (state law prohibiting the use of contraceptives invalidated upon finding right of privacy in the “penumbra” of the first, third, fourth, fifth, sixth, and fourteenth amendments).

The United States Supreme Court, in finding that á right of privacy exists under various provisions of the United States Constitution, has, to a limited extent, addressed the right of disclosural privacy. On a case-by-case basis, the Court has balanced the personal right of privacy against the need for governmental intrusion. In applying this balancing test, it recognized a right to disclosural privacy, but found the protested governmental intrusions to be reasonable. See Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977) (limited and controlled disclosure of former President Nixon’s presidential papers and tape recordings not violative of right to privacy); Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977) (upheld a New York statute which compelled disclosure to government of names of persons receiving certain prescription drugs upon finding that statutory safeguards against public disclosure were sufficient to protect individual privacy interests); Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (constitutional right of privacy extended only to matters of intimate or family nature and did not prohibit governmental disclosure of petitioner’s arrest record). Accord, Plante v. Gonzalez, 575 F.2d 1119, 1136 (5th Cir. 1978), cert. denied, 439 U.S. 1129, 99 S.Ct. 1047, 59 L.Ed.2d 90 (1979) (although public official financial privacy was matter of serious concern and deserving of strong protection, the “public interests supporting public disclosure for these elected officials [were] even stronger”).

This Court considered the federal constitutional right of disclosural privacy in Shevin v. Byron, Harless, Schaffer, Reid & Associates, Inc., 379 So.2d 633 (Fla.1980), when we were asked to recognize either a federal or state right of privacy prohibiting disclosure of personal information contained in applications for high-level government employment. We determined that no state right of privacy existed and that, although the United States Supreme Court had defined a federal right of privacy protecting an individual from disclosure of certain private information, the right was not violated where the information at issue was contained in an application for an executive position with a governmental agency. We concluded that the public interest in having access to the employment applications for public accountability purposes outweighed any federal constitutionally protected privacy interest that might exist.

State Right of Privacy

The final category concerns a general right of privacy, the right to be free from unjustified governmental and private intrusion, which is guaranteed by state constitutions, legislative acts, and judicial decisions. Although the United States Supreme Court has recognized a fundamental constitutional right of privacy which applies in certain limited circumstances, that Court has refused to establish a general right of privacy under the federal constitution: “But the protection of a person’s general right to privacy — his right to be let alone by other people — is, like the protection of his property and of his very life, left largely to the law of the individual States.” Katz, 389 U.S. at 350-51, 88 S.Ct. at 510-11 (footnote omitted).

Prior to the enactment of Florida’s privacy amendment, this Court expressly refused to find a general right of disclosural privacy emanating from any provision of the Florida Constitution. See Byron, Harless. But cf. Cason v. Baskin (approved civil tort action for invasion of privacy). The new constitutional provision states:

Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.

Art. I, § 23, Fla. Const. Importantly, in recognition of Florida’s strong commitment to the public’s right to know of governmental operations, the unambiguous language of the new provision makes it clear that courts may not construe the provision in a manner which would impair the public’s right of access to public records and meetings to assure governmental accountability.

II. PUBLIC RIGHT TO OPEN GOVERNMENT

Florida has been in the forefront of promoting open government through the broad application of our Sunshine Law, section 286.011, Florida Statutes (1983), and Public Records Act, chapter 119, Florida Statutes (1983). “It is the policy of this state that all state, county, and municipal records shall at all times be open for a personal inspection by any person.” § 119.01, Fla.Stat. (1983). Section 119.07(1) provides:

(l)(a) Every person who has custody of public records shall permit the records to be inspected and examined by any person desiring to do so, at reasonable times, under reasonable conditions, and under supervision by the custodian of the records or his designee. The custodian shall furnish copies or certified copies of the records upon payment of fees as prescribed by law or, if fees are not prescribed by law, upon payment of the actual cost of duplication of the copies. Unless otherwise provided by law, the fees to be charged for duplication of public records shall be collected, deposited, and accounted for in the manner prescribed for other operating funds of the agency.

Exceptions are allowed as set forth in section 119.07(3).

The purpose of the Public Records Act is to promote public awareness and knowledge of governmental actions in order to ensure that governmental officials and agencies remain accountable to the people. The statute authorizes the disclosure for public examination of all governmental records not specifically exempted by statute. This Court, in a series of cases, has recognized that the important public purpose served by our public meeting and open record laws is to ensure governmental accountability. We have specifically upheld the constitutional validity of these acts and have expressly stated that exemptions to the statutory disclosure requirement could be created only by the legislature. Rose v. D’Alessandro, 380 So.2d 419 (Fla.1980); Shevin v. Byron, Harless; Wait v. Florida Power & Light Co., 372 So.2d 420 (Fla.1979); Florida Commission on Ethics v. Plante, 369 So.2d 332 (Fla.1979); News-Press Publishing Co. v. Wisher, 345 So.2d 646 (Fla.1977).

It is important to note that the Fifth Circuit, in discussing Florida’s Public

Records Act, stated that “it is clear that the legislature cannot authorize by statute an unconstitutional invasion of privacy.” Fadjo v. Coon, 633 F.2d 1172, 1176 n. 3 (5th Cir.1981). The Fadjo decision applies a general constitutional right of privacy to investigative criminal testimony taken by a state prosecutor and gives the witness substantial control over the disclosure of his or her testimony. No such general right of privacy has been established as yet by the United States Supreme Court, and I would expressly reject the Fifth Circuit’s decision. In my view, the privacy interests of the individual must be weighed against the public interest in open government by using a balancing test similar to that applied by the United States Supreme Court in Whalen v. Roe and Nixon v. Administrator of General Services, by the Fifth Circuit in Plante v. Gonzalez, and by this Court in Byron, Harless. The Fadjo court, in my opinion, did not properly apply the balancing test. The majority’s failure to apply a balancing test in the instant case could have a devastating effect on our public meeting and public records law because it opens the door to a more restrictive federal court interpretation of the proper application of the balancing test, and thereby permits those courts to construe our laws contrary to the views of this Court. This Court should at least demonstrate to the federal courts that it has properly applied the United States Supreme Court balancing test. As explained below, I find that all the criteria of the federal balancing test have been met.

III. THE INSTANT CASE

Under the circumstances of this case, I find the requirement that personal family, medical, and financial information be furnished to the housing authority does not violate either federal or state constitutional privacy provisions. Because this is a housing project operated by the government for low income and disabled persons, it is absolutely necessary for the housing authority to receive this information in order to select qualified tenants. Additionally, there is no question that, under chapter 119, these records are public records and open to public examination because the legislature has chosen not to exempt them from disclosure. The issue the court should directly address is whether the public disclosure of public housing tenant files violates appellants’ federal and state constitutional right of privacy.

Regarding federal disclosural privacy rights, I conclude that, in balancing the respective interests, the public’s right to know about the housing authority’s operations, including the selection of tenants, is paramount to the individual tenant’s right of nondisclosure of personal information contained in the tenant files. Tenant files must be accessible for public examination so that the public, either individually or through the media, can determine whether the agency is accepting qualified tenants and is properly accountable in the operation of the facility. Financial status and physical condition are two critical elements to be considered in making a determination of whether an applicant is eligible to live in this type of public housing. The intrusion, in my view, is reasonable for the necessary public accountability.

Applying a similar balancing test under Florida’s new right of privacy, I reach the same result: The public’s right to know in these circumstances outweighs any assertion of a state-created privacy right for these public housing tenants. This result is particularly compelling since the Florida right-of-privacy provision expressly states that the provision shall not be construed to interfere with the policy of public accountability by governmental agencies, as implemented by the Public Records Act. Again, allowing the public examination of these housing authority files is, in my view, a reasonable intrusion necessary to implement the state interest of having the public know how this agency operates. There being no statutory exceptions applicable to tenant records, I conclude that the state constitutional right of privacy does not prohibit the disclosure of this information for public purposes.

I fully recognize that some persons examining these tenant records may utilize the information for strictly private purposes, such as insurance evaluations and credit investigations. Because the proper parties are not before us, I find that we cannot properly address the issue of whether article I, section 23, affects the private use of intimate, personal information that is of public record for strictly private purposes unconnected with governmental accountability. Further, whether a civil tort action for invasion of privacy may be brought against one using his right of access to this type of intimate, personal information for purely private benefit unrelated to governmental accountability is also an issue not properly before this Court in this proceeding. These issues may, however, be proper for another case when the proper parties are before the court.

For these expressed reasons, I concur in the result.

      . For an in-depth study of the right to privacy, see generally T. Cooley, Law of Torts 29 (1880); L. Eldredge, Modern Tort Problems 77 (1941); W. Prosser, Handbook of the Law of Torts § 117 (4th ed. 1971); Restatement (Second) of Torts ch. 652 (1976); Brittan, The Right of Privacy in England and the United States, 37 Tul.L. Rev. 235 (1963); Davis, What Do We Mean by “Right to Privacy'7, 4 S.D.L.Rev. 1 (1959); More-land, The Right of Privacy Today, 19 Ky.L.J. 101 (1931); Warren & Brandéis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890); Note, Toward a Right of Privacy as a Matter of State Constitutional Law, 5 Fla.St.U.L.Rev. 631 (1977). See also [1977] Report of the Privacy Protection Study Commission, Appendix 1: Privacy Law in the States.

      . Accord, Laird v. State, 342 So.2d 962 (Fla.1977) (federal right of privacy does not protect smoking marijuana in own home).

      . Section 119.07(3)(a) provides: "All public records which are presently provided by law to be confidential or which are prohibited from being inspected by the public, whether by general or special law, are exempt from the provisions of subsection (1)." Subsections (b) through (n) of section 119.07(3) provide for specific exemptions from disclosure.
      The legislature has enacted many other exceptions now contained in the 1983 Florida statutes. See, e.g. § 63.162 (adoption proceeding records): § 112.533(2) (law enforcement complaint records); § 213.053(2) (tax records); § 229.551(3)(k) (student achievement test records); § 230.2315(3) (educational alternative program records); § 231.262(4) (teacher and administration complaint records); § 382.35 (birth records); § 390.002(3) (abortion records); § 393.13(3)(m) (records of treatment and services provided retarded persons); § 395.0115(3) (licensed facilities disciplinary records); § 396.-112 (alcoholic treatment records); § 397.-053, .096 (drug abuse treatment records); § 400.321 (records concerning abuse of nursing home residents); § 400.494 (home health agency records); § 402.32(4)(h) (school health agency records); § 413.012 (Blind Services vocational rehabilitation records); § 415.51 (child abuse records); § 415.608 (spouse abuse center records); § 455.241(2) (patient records); § 959.-225(3) (HRS youth services records); § 960.-28(3) (records of payments to victims of crimes).

      . In regard to this issue, I am cognizant of the decision of the Third District Court of Appeal in Harms v. Miami Daily News, Inc., 127 So.2d 715 (Fla. 3d DCA 1961). See abo Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975); Restatement (Second) of Torts, § 652B comment c (1976).


author: OVERTON, Justice.

text:
    John H. JAMASON, et al., Petitioners, v. STATE of Florida, Respondent.
    No. 63571.
    Supreme Court of Florida.
    Aug. 30, 1984.
    David Roth of Cone, Wagner, Nugent, Johnson, Hazouri and Roth, and Larry Klein, West Palm Beach, for petitioners.

      Jim Smith, Atty. Gen. and Mark C. Men-ser, Asst. Atty. Gen., Daytona Beach, for respondent.
   OVERTON, Justice.

This cause is before us on petition to review a decision of the Fourth District Court of Appeal reported as Jamason v. State, 447 So.2d 892 (Fla. 4th DCA 1983), in which the district court certified the following question as being of great public importance: .

Whether the willful refusal to obey a telephonic order (in the nature of a writ of habeas corpus) issued by a court of general jurisdiction and based upon an oral application therefor by an attorney for the individual said to be illegally restrained, may constitute criminal contempt.

Id. at 896. We have jurisdiction, article V, section 3(b)(4), Florida Constitution, and we approve the district court decision and answer the certified question in the affirmative.

The relevant facts of this cause are as follows. At approximately 9:30 a.m. on January 18, 1982, Circuit Court Judge Rosemary Barkett received a telephone call from an attorney who was allegedly retained to represent a man in the custody of the West Palm Beach Police Department. The attorney stated that he had been denied access to his client. Judge Barkett then telephoned the petitioners, officers with the West Palm Beach Police Department, and stated that she was “issuing an oral writ of habeas corpus to bring [the prisoner] before me immediately.” 447 So.2d at 893. There was no dispute concerning the identity of Judge Barkett but the officers refused to comply with her oral order. By the time a formal writ of habeas corpus had been issued, the prisoner had been transferred to the Palm Beach County Jail. Petitioners were subsequently adjudged guilty of criminal contempt for the willful refusal to obey the court’s telephonic order and were fined $500 each.

On appeal, the district court of appeal affirmed the trial court. The court noted that “only if an order is entered in a matter concerning which the court has no jurisdiction may such an order be safely ignored. The corollary of that rule is that whether an order be totally erroneous or irregular or even unconstitutional, its violation may constitute a criminal contempt.” 447 So.2d at 893. Finding that this case involved an oral application for a writ of habeas corpus, the district court held that the circuit judge had subject matter jurisdiction to issue the oral order. The court concluded by finding that, while the oral order may have been voidable, it was not void and the willful refusal to comply constituted criminal contempt.

We fully agree with the reasoning of the district court. There is no question that the prisoner was in the custody of the petitioners who knew that the circuit judge had jurisdiction to issue writs of habeas corpus and jurisdiction, as a committing magistrate, over all individuals in custody in Palm Beach County for state, county, or municipal offenses. At most, the order issued by Judge Barkett was voidable. Oral orders by trial courts, while not preferred, are necessary at times. Law enforcement also finds it necessary at times to request that oral orders be entered for jail release of confidential informants, jail transfers, and inmate illness. Such oral orders should, however, be reduced to writing as soon as practicable. Petitioners, as law enforcement officers, must obey the orders of lawful authority the same as everyone else, even though they may disagree with the order. They had available the proper means to challenge the order by appearing as directed, with the prisoner in custody, and challenging the sufficiency and validity of both the habeas corpus petition and the process employed before proceeding to the consideration of the petition on its merits.

We find that the petitioners were properly adjudicated in criminal contempt and we approve in full the district court decision.

It is so ordered.

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

ADKINS, J., dissents.


text:
    Robert BROWN, a/k/a Darryl Thomas, Petitioner, v. STATE of Florida, Respondent.
    No. 63793.
    Supreme Court of Florida.
    Aug. 30, 1984.
    David J. Busch, Asst. Public Defender, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen. and Barbara A. Butler, Asst. Atty. Gen., Jacksonville, for respondent.
   OVERTON, Justice.

This is a petition to review Brown v. State, 431 So.2d 247 (Fla. 1st DCA 1983), in which the district court of appeal certified the following question to be of great public importance:

IS THERE A CRIME OF ATTEMPTED MANSLAUGHTER UNDER THE STATUTES OF THE STATE OF FLORIDA?

Id. at 249. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Subsequent to the filing of this petition, we answered the same question in the affirmative in our recent decision in Taylor v. State, 444 So.2d 931 (Fla.1983). In Taylor we held that

there may be a crime of attempted manslaughter. ... [A] verdict for attempted manslaughter can be rendered only if there is proof that the defendant had the requisite intent to commit an unlawful act. This holding necessitates that a distinction be made between the crimes of “manslaughter by act or procurement” and “manslaughter by culpable negligence.” For the latter there can be no corresponding attempt crime. This conclusion is mandated by the fact that there can be no intent to commit an unlawful act when the underlying conduct constitutes culpable negligence. On the other hand, when the underlying conduct constitutes an act or procurement, such as an aggravated assault, there is an intent to commit the act and, thus, there exists the requisite intent to support attempted manslaughter.

444 So.2d at 934 (emphasis added).

We hold that the facts in the instant case clearly reflect that Brown committed overt acts sufficient to supply the “requisite intent” to support a conviction for the crime of attempted manslaughter. The relevant facts indicate that Brown was tried for the attempted first-degree murder of Officer Rein, a deputy sheriff who, at the time of this incident, was serving as a uniformed security officer at a Greyhound bus station. The officer testified that, when he observed Brown in the bus station, he thought Brown was trying to avoid him. The officer also testified that he followed Brown as he exited the building and, upon finding him in a nearby alcove, asked if he could talk to him. Brown then began to run away and said, “You’re going to have to kill me first or I’ll kill you.” Brown proceeded to a nearby locked restaurant door, broke the locking mechanism and entered. Brown next ran to another door which led into the station lobby, kicked out the glass, and entered the lobby area of the station. The officer told Brown not to move and that he was under arrest, but Brown again ran into the restaurant. A Greyhound employee ran after Brown and caught him as he tried to get back into the station. Both the officer and the station employee tried to subdue the petitioner and the officer was knocked down. As he got up, he withdrew his revolver from its holster. During the scuffle, Brown gained possession of the firearm from the officer and the gun discharged into the floor. The officer testified that there was no doubt in his mind that Brown was pushing the barrel of the revolver towards his head and midsection before the gun fired. The officer and the Greyhound employee succeeded in subduing Brown and taking the gun.

The jury returned a verdict of guilty of attempted manslaughter. On appeal, Brown asserted that there is no crime of attempted manslaughter in Florida and that, even absent an objection to the charge of attempted manslaughter, the conviction must be reversed. The district court of appeal disagreed and affirmed the conviction for attempted manslaughter, but certified the previously noted question to this Court. Our decision in Taylor controls the resolution of this case. Brown’s underlying conduct evidences sufficient intent under Taylor principles to support his conviction. Brown’s conviction for attempted manslaughter is, therefore, approved. We decline to address the other issues submitted in the cause which were not part of the certified question. Accordingly, the decision of the district court is approved.

It is so ordered.

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


author: SHAW, Justice.

text:
    BECHTEL JEWELERS, INC., Hanover Insurance Co., and Terence F. McCabe, Inc., Petitioners, v. INSURANCE COMPANY OF NORTH AMERICA, Respondent. Ann SLOAN, Hanover Insurance Co., and Terence F. McCabe, Inc., Petitioners, v. INSURANCE COMPANY OF NORTH AMERICA, Respondent.
    Nos. 64023, 64022.
    Supreme Court of Florida.
    Aug. 30, 1984.
    Ronald Sales of Sales & Weissman, West Palm Beach, for petitioner Bechtel Jewelers, Inc.

      Montgomery, Lytal, Reiter, Denney & Searcy, and Edna L. Caruso, West Palm Beach, for petitioner Ann Sloan.
    Dennis A. Vandenberg of Brennan, McA-liley, Hayskar, McAliley & Jefferson, West Palm Beach, for petitioners Hanover Ins. Co. and Terence F. McCabe, Inc.
    Marjorie Gadarian Graham of Jones & Foster, West Palm Beach, for respondent.
   SHAW, Justice.

This cause is before us pursuant to a certified question from the Fourth District Court of Appeal:

IF A MARY CARTER AGREEMENT IS ENTERED INTO AND NONPARTICIPATING DEFENDANTS REQUEST THAT THE JURY BE SO ADVISED, MUST THE ENTIRE AGREEMENT ALWAYS BE PUT IN EVIDENCE.

Insurance Co. of North America v. Sloan, 432 So.2d 132, 135 (Fla. 4th DCA 1983). We have jurisdiction. Art. V., § 3(b)(4), Fla. Const.

Sloan left her sapphire ring with McCabe, a jeweler, for an appraisal. McCabe sent it to Bechtel, a gemologist, to verify its authenticity. Bechtel put the ring in an ultrasonic machine to clean it, and the sapphire was fractured. Sloan sued Bechtel Jewelers, Inc. (Bechtel) and its insuror, Insurance Company of North America (INA), and Terence F. McCabe, Inc. (McCabe) and its insuror, Hanover Insurance Company (Hanover), for damages. Hanover admitted coverage, but INA did not.

Prior to trial Sloan entered into two interrelated agreements, with McCabe, Hanover, and Bechtel, which provided that if a verdict was rendered against INA, and any of the remaining defendants, Sloan would look for recovery to INA only. In the event INA were not found liable, Sloan would look to Bechtel for the first $30,000 of a damage award and to McCabe/Hanover for any amount in excess of $30,000 up to $60,000. That is, neither defendant would be liable for more than $30,000, and they could escape liability altogether in the event the jury included INA among those liable for damages to Sloan. These agreements were typical of those that have come to be known as “Mary Carter” agreements, wherein a limit is placed upon the liability of agreeing defendants, and potential liability is reduced or extinguished, depending upon the recovery against the nonagreeing defendant. The agreeing defendant stays in the lawsuit. “Secrecy is the essence of such an arrangement, because the court or jury as trier of the facts, if apprised of this, would likely weigh differently the testimony and conduct of the signing defendant as related to the non-signing defendants.” Ward v. Ochoa, 284 So.2d 385, 387 (Fla.1973). In order that judges and juries are not deceived by such agreements, we have held that they are discoverable and admissible into evidence. Id.

In the present case, INA sought to make the agreements known to the jury, but sought to excise certain self-serving opinions expressed therein unfavorable to INA. The trial court ruled that if the agreements came in, they would have to be admitted in their entirety, i.e., all or nothing. The jury found in favor of Sloan and against Bechtel and INA in the amount of $55,000 plus costs.

The district court reversed, finding that the jury may well have been misled or prejudiced by the language imputing recalcitrance to INA and concluding that coverage was “not arguable.” We approve the decision of the district court. The issue of coverage in this case was a jury question, and agreements containing a self-serving conclusion on coverage and language otherwise adverse to INA were unduly suggestive and should not have come before the jury. As a result, INA did not receive a fair trial.

Were we to hold that a Mary Carter agreement must always be admitted in its entirety, we would encourage creative drafting that would prejudice nonagreeing defendants, who would then be faced with a Hobson’s choice regarding the introduction of such an agreement. It is the terms of the agreement the trier of fact should know, not the self-serving opinions set out therein.

We answer the certified question in the negative and hold that self-serving, prejudicial language should be excised before a Mary Carter agreement is submitted to the jury.

The decision of the district court is approved.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, MeDONALD and EHRLICH, JJ., concur.


author: McDONALD, Justice.

text:
    Vendul Oliver STAFFORD, Petitioner, v. STATE of Florida, Respondent.
    No. 64394.
    Supreme Court of Florida.
    Aug. 30, 1984.
    James B. Gibson, Public Defender and James R. Wulchak, Chief, Appellate Div., Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for petitioner.

      Jim Smith, Atty. Gen. and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for respondent.
   McDONALD, Justice.

We have for review State v. Stafford, 437 So.2d 232 (Fla. 5th DCA 1983), because of conflict with Thomas v. State, 434 So.2d 20 (Fla. 2d DCA 1983), and Johnson v. State, 419 So.2d 752 (Fla. 2d DCA 1982), review denied, 427 So.2d 737 (Fla.1983). We have jurisdiction under article V, section 3(b)(3) of the Florida Constitution and approve Stafford.

In 1977 the trial court sentenced Stafford to five years’ imprisonment for burglary and to five years’ probation for grand theft, with the term of probation to run consecutively with the burglary sentence. After Stafford’s release on parole from the burglary sentence, the state filed an affidavit alleging, among other violations, that he had violated his grand theft probation by burglarizing a store. Stafford pleaded no contest to that burglary and received a thirty-month sentence. He later pleaded no contest to the probation violation charge while reserving the right to appeal the trial court’s ruling that his probation could be revoked for misconduct while on parole.

Stafford claims that a defendant’s probation is improperly revoked where, at the time of the offending conduct, the term of probation had not commenced because he was still serving a prior sentence to which his probation was to run consecutively. The district court, rejecting this contention, affirmed the revocation of probation. While acknowledging conflict with Thomas and Johnson, the district court reasoned that the trial court must be free to revoke probation at any time for misconduct which demonstrates the probationer’s unfitness for probation as a sentencing alternative. We agree and approve the decision under review.

Stafford relies on Thomas and Johnson, but, just as the “fifth district did in its opinion, we prefer and cite approvingly from Martin v. State, 243 So.2d 189 (Fla. 4th DCA), cert. denied, 247 So.2d 63 (Fla.1971), as follows:

The question here is whether a defendant probationer can, with impunity, engage in a criminal course of conduct (or for that matter any course of conduct which is essentially contrary to good behavior) during the interval between the date of an order of probation and some subsequent date when the probationary term is to commence. We think not. To hold otherwise would make a mockery of the very philosophy underlying the concept of probation, namely, that given a second chance to live within the rules of society and the law of the land, one will prove that he will thereafter do so and become a useful member of society. Cf. McNeely v. State, Fla.App.1966, 186 So.2d 520. Although the statute empowers the court to revoke probation when a probationer has violated a condition of his probation in a material respect, the power to revoke probation is an inherent power of the trial court, Bronson v. State, 1941, 148 Fla. 188, 3 So.2d 873, which may be exercised at anytime [sic] upon the court determining that the probationer has violated the law. State ex rel. Roberts v. Cochran, [140 So.2d 597 (Fla.1962)]. Under the exercise of such inherent power, the court can revoke an order of probation, the term of which has not ' yet commenced, should the court determine that the defendant probationer has been guilty of misconduct occurring subsequent to the entry of the order of probation.
Id. at 190-191. This holding has been consistently followed by the Fourth District, see, e.g., Caudillo v. State, 400 So.2d 122 (Fla. 4th DCA 1981); Kimble v. State, 396 So.2d 815 (Fla. 4th DCA 1981); Bracey v. State, 381 So.2d 370 (Fla. 4th DCA 1980); Hart v. State, 364 So.2d 544 (Fla. 4th DCA 1978), and has been adopted by the Third District. Williamson v. State, 388 So.2d 1345 (Fla. 3d DCA 1980).

Stafford, 437 So.2d at 233-34.

We find that Stafford’s consecutive probation term was subject to revocation upon his release from prison on the original burglary offense. The trial court could properly find that Stafford had violated the terms of his probation by committing a burglary while on parole for the separate offense. Accordingly, we approve the decision under review and disapprove Thomas and Johnson to the extent of conflict with this opinion.

It is so ordered.

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

      We agree with that part of Thomas that holds that a person cannot be on parole and probation at the same time provided that this statement is made in reference to the same offense. But that proposition has no application when there are two separate offenses for which two sentences may be imposed. In those circumstances it is possible to have a prison sentence from which parole may be available and also have probation imposed. Under those circumstances parole and probation may coexist.


text:
    STATE of Florida, Petitioner, v. Catherine F. COCHRAN, Respondent.
    No. 65064.
    Supreme Court of Florida.
    Aug. 30, 1984.
    Jim Smith, Atty. Gen. and Gary 0. Welch, Asst. Atty. Gen., Tampa, for petitioner.
    Jerry Hill, Public Defender and Douglas S. Connor, Asst. Public Defender, Tenth Judicial Circuit, Tampa, for respondent.
   PER CURIAM.

Quashed. Stafford v. State, 455 So.2d 385 (Fla.1984).

It is so ordered.

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


text:
    STATE of Florida, Petitioner, v. Melvin MULLETT, Respondent.
    No. 64608.
    Supreme Court of Florida.
    Aug. 30, 1984.
    Jim Smith, Atty. Gen., and Frank Lester Adams, III and Gary 0. Welch, Asst. At-tys. Gen., Tampa, for petitioner.
    Larry Byrd of Ginsburg, Byrd, Jones & Dahlgaard, Sarasota, for respondent.
   PER CURIAM.

State v. Mullett, 439 So.2d 924 (Fla.2d DCA 1983), is quashed on the basis of Carlton v. State, 449 So.2d 250 (Fla.1984).

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Marvin L. LESSNE, Respondent.
    No. 65402.
    Supreme Court of Florida.
    Aug. 30, 1984.
    Robert H. Anderson, II, Fort Lauderdale, for respondent.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Michael D. Powell, Bar Counsel, Fort Lauderdale, for complainant.
   PER CURIAM.

This matter is before the Court on amended petition for approval of conditional guilty plea for consent judgment and entry of final order of discipline for violations of Florida Bar Integration Rule, article XI, Rules 11.02(3) and 11.02(4) and Disciplinary Rules 1-102(A)(4) and 9-102 of the Code of Professional Responsibility of The Florida Bar. We approve the petition, and we hereby disbar respondent, Marvin L. Lessne, from the practice of law in the State of Florida, effective this date.

Costs in the amount of $849.50 are hereby taxed against the respondent.

It is so ordered.

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