author: BOYD, Chief Justice.

text:
    In re AMENDMENTS TO the ARTICLES OF INCORPORATION OF the FLORIDA BAR FOUNDATION, INCORPORATED.
    No. 65954.
    Supreme Court of Florida.
    Jan. 24, 1985.
    Andrew G. Pattillo, Jr., Ocala, President for The Fla. Bar Foundation, Inc., for Petitioner.
   BOYD, Chief Justice.

This proceeding is before the Court on the petition of The Florida Bar Foundation, Incorporated, seeking approval of amendments to the Foundation’s Articles of Incorporation, also called its Charter. The amendment has been adopted by the Board of Directors of the Florida Bar Foundation and approved by the Board of Governors of The Florida Bar. This Court has the authority to finally approve such an amendment. See Fla. Bar Found. Charter, art. 10, paragraphs 10.2, 10.3, and 10.4; Fla. Bar Integr. Rule, art. XII.

The proposed amendment would revise article 10 of the Foundation’s Charter and thereby change the procedure for amending the Charter in the future. As the procedure followed in the present case illustrates, under the current provisions of article 10 of the Charter, the Board of Directors of the Foundation may by a two-thirds vote adopt a proposed amendment to the Charter. The proposed amendment must then obtain the approval of the Board of Governors of The Florida Bar before being presented to this Court.

The amendment as proposed would allow the Board of Directors of the Foundation and the Board of Governors of the Bar to propose amendments to this Court independently of each other, provided the proposing body gives the other group notice and an opportunity for consultation. The amendment also authorizes the making of amendment proposals directly by the Foundation membership with the concurrence of fifty members and provided notice and an opportunity for consultation is given to both the Foundation directors and the Bar governors.

We hereby approve the following amendments to article 10 of the Florida Bar Foundation Charter. Additions are indicated by underscoring; deletions are indicated by struck-through type.

Article 10. Amendment

10.1Notice of Amendments. Notice of the subject matter of a proposed amendment to these Articles shall be included in the notice of the meeting at which a proposed amendment is considered.

10.2 Directors Approval. — A resolution adopting-ar-p-roposed-amendment or-amendments shall be approved by two-thirds of all directors,-

10.3 Approval-. — An amendment adopted by-the-boar-d-uf-director-s-shall-be-pr-esented to the Board of Governors of The Florida Bar for approval.

10.4 Approval. — An amendment adopted by the board-of-directors -and-approved by the Board of Governors of The Florida Bar shall be presented to the Supreme Court of Florida for-approval-in accordance with- Article XII -of- the Integration Rule-of-The Florida- Bar-.

10.5 Filing. — An-amendment-so-adopted and approved-shall-be -filed with-the-Secre-tar-y-o-f-State-as-pr-ov-ided-by-law.

10.2 Procedure. These Articles of Incorporation may be amended in the following ways:

(a) By petition of 50 or more members of the Foundation directly to the Supreme Court of Florida, after' advance notice to and opportunity for consultation with and comment by the board of directors of the Foundation and the Board of Governors of The Florida Bar, and approval by the Court.

(b) By petition of the Board of Governors of The Florida Bar directly to the Supreme Court of Florida, after advance notice to and opportunity for consultation with and comment by the board of directors of the Foundation, and approval by the Court. A resolution adopting a proposed amendment or amendments shall be approved by an absolute majority of the members of the Board of Governors of The Florida Bar.

(c) By petition of the board of directors of the Foundation directly to the Supreme Court of Florida, after advance notice to and opportunity for consultation with and comment by the Board of Governors of The Florida Bar, and approval by the Court. A resolution adopting a proposed amendment or amendments shall be approved by an absolute majority of the directors of the Foundation.

(d) “Advance notice” means submission of the subject matter and language of the proposed amendment to the body having the right to consult and comment at least thirty days before its next regularly scheduled meeting.

10.3 Effective Date. Any amendment approved by the Supreme Court of Florida shall be effective upon filing with the Secretary of State as provided by law.

The foregoing amendments to the Florida Bar Foundation Charter are hereby approved and adopted.

It is so ordered.

ADKINS, OVERTON, ALDERMAN, MCDONALD, EHRLICH and SHAW, JJ., concur.


source: Caselaw Access Project

author: EHRLICH, Justice. ADKINS, Justice,

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Irene Yvonne PHILLIPS, Respondent.
    No. 64547.
    Supreme Court of Florida.
    Feb. 7, 1985.
    Jim Smith, Atty. Gen. and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for petitioner.
    Gwendolyn Spivey and Michael J. Minerva, Asst. Public Defenders, Second Judicial Circuit, Tallahassee, for respondent.
   EHRLICH, Justice.

This cause is before the Court for review of the decision of the First District Court of Appeal in Phillips v. State, 438 So.2d 886 (Fla. 1st DCA 1983), pursuant to a question certified as being of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Phillips was charged by information with the theft of less than one hundred dollars from Winn Dixie Stores, Inc. The heading of the information read “FELONY PETIT THEFT.” At Phillip’s arraignment, the state filed a notice of intent to rely on two prior petit theft convictions in order to enhance the crime pursuant to section 812.-014(2)(c), Florida Statutes (1981), but the prior convictions were not alleged in the information itself.

Phillips was tried, convicted and sentenced in circuit court pursuant to the information filed. No objection to the adequacy of the information or to the jurisdiction of the circuit court was ever raised before the circuit court.

Phillips appealed her conviction to the district court, raising two issues on the merits. Subsequently, she sought leave to file a supplemental brief challenging the jurisdiction of the circuit court. The district court ultimately accepted the supplemental brief and agreed that the information was fatally defective for failure to allege jurisdiction of the circuit court. On motion for rehearing the district court certified as a question of great public importance “whether, absent objection or motion to dismiss in the circuit court, the defect found in the charging instrument should be noticed on appeal as jurisdictional.”

Pursuant to the provisions of sections 5 and 6 of article V, Florida Constitution, the legislature has vested the circuit courts with original jurisdiction over “all felonies and ... all misdemeanors arising out of the same circumstances as a felony which is also charged.” § 26.012(2)(d), Fla.Stat. (1981). County courts have original jurisdiction over “all misdemeanor cases not cognizable by the circuit courts.” § 34.01, Fla.Stat. (1981).

Section 812.014, Florida Statutes (1981), defines theft of property valued at less than one hundred dollars as:

petit theft and a misdemeanor of the second degree,_ Upon a second conviction for petit theft, the offender shall be guilty of a misdemeanor of the first degree, _ Upon a third or subsequent conviction for petit theft, the offender, shall be guilty of a felony of the third degree, ....

(Emphasis supplied.)

The information filed against Phillips, under the heading “Felony Petit Theft” charged her with the theft of less than one hundred dollars “contrary to the provisions of Section 812.014(2)(c), Florida Statutes.”

The issue before this Court is not one of notice. Phillips concedes that she had proper and sufficient notice of the charges against her and of those prior convictions on which the state based the felony petit theft charge. Neither does Phillips challenge the propriety of the circuit court’s jurisdiction over felony petit theft cases. The narrow issue before us is whether the information filed in this case sufficiently alleged commission of a felony and thus properly invoked the jurisdiction of the circuit court.

The facts alleged in the information, if proved, would support a conviction of misdemeanor theft. Phillips contends that, in order to allege felony petit theft, the state was required to allege the two prior theft convictions as essential elements of the crime charged.

The state argues that the heading, Felony Petit Theft, coupled with the reference to the statute defining that crime, fulfilled all the constitutional requirements of a charging document charging the felony. If the felony is adequately charged in the information, the jurisdiction of the circuit court is properly invoked. We agree.

Florida Rule of Criminal Procedure 3.140(b) states that the “information upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” Subsection (d) of Rule 3.140 further provides “each count shall recite the official or customary citation of the statute ... which the defendant is alleged to have violated.”

We hold that, on the facts of this case, the labeling of the charge as Felony Petit Theft coupled with citation to the statute which defines that substantive crime and the recitation of the facts which would support conviction under the statute is a sufficiently “definite statement of the essential facts constituting the offense charged.” Thus it is adequate notice of the facts absent a timely objection or motion to dismiss.

In State v. Harris, 356 So.2d 315 (Fla. 1978), this Court addressed the prejudicial effect of requiring the jury to hear evidence of defendant’s prior convictions to prove the essential elements of the crime charged. While recognizing the legislature’s power to create the substantive offense of felony petit larceny, we exercised our power to tailor a procedure which would protect defendant’s constitutionally guaranteed presumption of innocence. We analogized section 812.021(3) to the enhancement provisions of the habitual offender statute, section 775.084, Florida Statutes (1977), and held that after a jury returns a conviction on the underlying misdemeanor the judge will determine the fact of the prior conviction.

In the case before us, we tailor the requirements of the information to the nature of the statutory offense. Florida Rule of Criminal Procedure 3.140(o) provides:

Defects and Variances. No indictment or information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information or of misjoinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment or information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.

Any defect in the information filed is clearly one of form, not of substance, as evidenced by the fact that both parties were willing and able to proceed to trial in circuit court on the charge of felony petit theft. There is no claim that the information is “so vague, indistinct and indefinite as to mislead the accused or embarass [her] in the preparation of [her] defense.” Neither is there any “danger of a new prosecution of the same offense.” This Court has, in recent years, recognized these two considerations as the primary rationale for the common-law “four corners of the charging document” rule. With increased discovery in criminal trials, we have found these protections to be afforded defendants without the rigid application of that rule. See e.g., Tucker v. State, 459 So.2d 306 (Fla.1984), York v. State, 432 So.2d 51 (Fla.1983); Sparks v. State, 273 So.2d 74 (Fla.1973).

Because defendant was not misled or exposed to double jeopardy, we find the information sufficient to support a conviction for felony petit theft. Because the charging documents clearly labeled the crime charged as felony petit theft and cited the statute providing that the crime charged could be proved only by evidence of a misdemeanor theft and two prior convictions for misdemeanor theft, we find the information was not fundamentally defective and adequately invoked the jurisdiction of the circuit court.

Phillip’s original appeal was filed on issues unrelated to the one now before us. In vacating the judgment and sentence, the district court did not reach the issues originally briefed. We therefore remand this cause to the First District Court of Appeal for determination of those issues.

It is so ordered.

BOYD, C.J., and OVERTON, ALDERMAN, McDonald and SHAW, JJ., concur.

ADKINS, J., dissents with an opinion.

ADKINS, Justice,

dissenting.

I adopt the fine opinion of Judge Robert Smith in Phillips v. State, 438 So.2d 886 (Fla. 1st DCA 1983).


author: OVERTON, Justice. McDONALD, Justice,

text:
    Vincent GREEN, Petitioner, v. STATE of Florida, Respondent.
    No. 64771.
    Supreme Court of Florida.
    Feb. 7, 1985.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for petitioner.
    Jim Smith, Atty. Gen., and Penny H. Brill and G. Bart Billbrough, Asst. Attys. Gen., Miami, for respondent.
   OVERTON, Justice.

This is a petition to review a decision of the Third District Court of Appeal reported as Green v. State, 450 So.2d 509 (Fla. 3d DCA 1984), in which the district court held that a determination, at a probation revocation hearing, that the evidence of the instant criminal offense was insufficient to revoke petitioner’s probation did not collaterally estop the state from prosecuting him for the same criminal offense. The district court affirmed petitioner’s conviction and certified the following question as being of great public importance:

WHEN, IN A PROBATION REVOCATION PROCEEDING, A TRIAL JUDGE FINDS THAT THE EVIDENCE IS INSUFFICIENT TO PROVE THE CRIMINAL OFFENSE ASSERTED AS THE GROUND FOR REVOCATION, IS THE STATE COLLATERALLY ESTOPPED FROM TRYING THE DEFENDANT FOR THE SAME CRIMINAL OFFENSE?

450 So.2d at 509. We have jurisdiction, article V, section 3(b)(4), Florida Constitution, and we answer the certified question in the negative, approve the decision of the district court, and find that the probation violation hearing did not put petitioner in jeopardy for the criminal conduct asserted as a basis for revocation.

The facts of this case are as follows. Petitioner, while on probation for robbery, was arrested and charged by an information with possession of burglary tools, attempted burglary, and criminal mischief. These charges formed the basis for the instant criminal convictions and the probation violation charge. At the probation violation hearing, the trial court determined that the state had not established the elements of the charged criminal offense beyond a reasonable doubt and refused to revoke petitioner’s probation.

In the subsequent criminal proceeding on these charges, petitioner moved to dismiss the information, asserting that collateral estoppel prohibited his trial or conviction on the charges. The trial court denied the motion and the cause proceeded to trial. Petitioner was found guilty as charged and the trial judge sentenced him to two concurrent three-year terms.

In upholding the conviction, the district court found that the probation revocation proceeding was a deferred sentencing hearing which did not subject Green to jeopardy for the charged offenses. 450 So.2d at 510. We agree with the district court that no jeopardy attached for the new criminal offenses during the revocation proceeding. The purpose of the revocation hearing was to determine whether the terms of petitioner’s probation for a prior offense had been violated. As we have stated previously, this process constitutes a deferred sentencing proceeding. See State v. Payne, 404 So.2d 1055 (Fla.1981); Delaney v. State, 190 So.2d 578 (Fla.1966). In the revocation proceeding, petitioner was not subjected to conviction or punishment for his new criminal conduct and, therefore, the double jeopardy clause through the doctrine of collateral estoppel is not applicable. See State v. McCord, 402 So.2d 1147 (Fla.1981); State v. Jones, 425 So.2d 178 (Fla. 1st DCA 1983). We note that, in an analogous situation, a prosecution may be instituted even though there is a finding of no probable cause at a preliminary hearing. State v. Hernandez, 217 So.2d 109 (Fla.1968).

Accordingly, for the reasons expressed, we approve the decision and opinion of the district court.

It is so ordered.

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

McDONALD, J., dissents with an opinion, in which ADKINS, J., concurs.

McDONALD, Justice,

dissenting.

Collateral estoppel and double jeopardy are distinct legal concepts. The fact that jeopardy does not attach should not be dispositive of the claim of collateral estop-pel. When an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in a future lawsuit. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). The issue litigated in the probation revocation hearing was exactly the same litigated in the subsequent criminal trial. The chief witness was the same in both proceedings. The judge in the probation revocation hearing, acting as a trier of fact, found the defendant not guilty. Because the parties were the same and the ultimate issues were the same the state should be prohibited from proceeding with the prosecution of the crime for which the defendant was found innocent in the probation revocation hearing.

ADKINS, J., concurs.


text:
    STATE of Florida, Appellant, v. Ricky BUSSEY, Appellee. STATE of Florida, Appellant v. Herbert Lee GAINES, Appellee. STATE of Florida, Appellant v. James Earl DOTSON, Appellee.
    Nos. 64966, 64967 and 64968.
    Supreme Court of Florida.
    Feb. 7, 1985.

      Jim Smith, Atty. Gen., and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, 15th Judicial Circuit, West Palm Beach, for appellees.
   BOYD, Chief Justice.

These consolidated cases are before the Court on appeal from decisions of the District Court of Appeal, Fourth District, in which that court held a state law unconstitutional. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We find the district court’s rulings erroneous and therefore reverse.

The state accused appellee Bussey of agreeing, consenting, or offering to sell heroin, a controlled substance, and then selling another substance, a compound of caffeine and methapyrilene, in lieu of heroin, in violation of section 817.563, Florida Statutes (1981). Bussey moved to dismiss the charge on the ground that the statute was unconstitutional. The trial court held the statute unconstitutional and dismissed the charge. The state appealed and the district court affirmed the ruling of the trial court. State v. Bussey, 444 So.2d 63 (Fla. 4th DCA 1984).

Appellees Gaines and Dotson were also charged separately with the offense proscribed by section 817.563. Both moved to dismiss on constitutional grounds. The trial courts denied the motions. Both men were convicted. However, on appeal the convictions were reversed on the authority of State v. Bussey. Dotson v. State, 446 So.2d 1084 (Fla. 4th DCA 1984); Gaines v. State, 444 So.2d 553 (Fla. 4th DCA 1984).

Section 817.563 provides:

It is unlawful for any person to agree, consent, or in any manner offer to unlawfully sell to any person a controlled substance named or described in s. 893.03 and then sell to such person any other substance in lieu of such controlled substance. Any person who violates this section with respect to:
(1) A controlled substance named or described in s. 893.03(1), (2), (3), or (4) is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2) A controlled substance named or described in s. 893.03(5) is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.-083, or s. 775.084.

The district court of appeal found several constitutional infirmities affecting the statute. First, the court found due process principles violated by the lack of á sufficient requirement of intent. Second, the court found the statute vague due to the lack of clarity about what degree and quality of intent is required. Third, the court also suggested that the statute is invalid for lack of a rational connection to a legitimate state purpose:

On the question of intent, the district court reasoned that the statute is essentially a measure against fraud and that therefore proof of specific intent is necessary under historical common-law principles now considered part of the concept of due process. We do not agree that the statute is aimed at preventing fraud. The legislature, in enacting section 817.563, was not concerned with protecting persons illegally purchasing controlled substances from the danger of being sold bogus controlled substances. The district court noted that “[t]he statute is a fraud measure contained in Chapter 817, Florida Statutes, governing ‘Fraudulent Practices.’ ” 444 So.2d at 64. This observation does not establish that the statute is a fraud measure. The arrangement and classification of laws for purposes of codification in the Florida Statutes is an administrative function of the Joint Legislative Management Committee of the Florida Legislature. § 11.242, Fla.Stat. (1983). The classification of a law or a part of a law in a particular title or chapter of Florida Statutes is not determinative on the issue of legislative intent, though it may be persuasive in certain circumstances. Where there is a question, established principles of statutory construction must be utilized. It seems clear to us that section 817.563 is not a fraud statute; it is not designed to protect illegal drug users and dealers from fraudulent representations by other dealers. We find that the statute is merely a part of the law of this state pertaining to drug abuse prevention and control and is rationally related to the purposes for which those laws were enacted.

Criminal offenses based upon possession and sale of illegal drugs may be defined so as to require only a general intent and need not require a specific intent. See State v. Medlin, 273 So.2d 394 (Fla.1973). It is within the authority of the legislature to dispense with specific criminal intent when defining crimes. State v. Gray, 435 So.2d 816 (Fla.1983).

In State v. Thomas, 428 So.2d 327 (Fla. 1st DCA), review denied, 436 So.2d 101 (Fla.1983), the court found that by using the words “agree, consent, or in any manner offer to unlawfully sell” (emphasis added), the legislature demonstrated an intention to require proof of knowledge with regard to the controlled substance agreed or offered to be sold. As to the second element — the providing of some other substance in lieu of the controlled substance agreed upon — the district court in Thomas found that only a general intent was required. The court in Thomas found the statute constitutional. The district court in the present case found the statute invalid for lack of a cquirement of proof of specific intent to obtain money by false pretenses of illegally supplying a controlled substance.

We find the statute is not a fraud statute and we agree with the Thomas court on the matter of intent. We therefore hold that the statute is not invalid for lack of a necessary specific intent requirement.

In support of its conclusion that the statute is vague, the district court said that

“it does not say whether the person selling the counterfeit drug must know it to be counterfeit or must know it not to be counterfeit.” 444 So.2d at 64. The court continued as follows:

The statute does not actually state whether it is the drug intended to be sold or the substance actually sold which determines whether it is a felony or misdemeanor. Perhaps the only logical construction is that if a person offers to sell an illegal drug and then actually sells a legal substance the act is a felony or misdemeanor depending on which type of illegal substance was originally offered. However, the Second District in M.P. v. State, supra, [430 So.2d 523 (Fla. 2d DCA 1988)] has held that there is no necessity of any intent to actually sell a controlled substance. The First District held in Thomas [State v. Thomas, 428 So.2d 327 (Fla. 1st DCA 1983) ] that Section 817.563 only applies when the defendant actually knows that the substance sold is a legal substance and not when he has a mistaken belief that it is an illegal substance. A close reading of Thomas indicates the statute applies only when one knowingly offers an illegal drug and then knowingly sells a legal substance. The Thomas opinion is in disagreement with M.P. v. State, supra, which holds that there need be no intent to ever sell an illegal drug but only an offer to do so. After consideration of the statute and the cases construing it we conclude it is vague and thus constitutionally infirm.

444 So.2d at 65. The quoted matter shows that in the district court’s analysis the question of vagueness was conceptually intertwined with the question of intent. The question presented by a vagueness challenge, however, is whether the language of the statute is sufficiently clear to provide a definite warning of what conduct will be deemed a violation; that is, whether ordinary people will understand what the statute requires or forbids, measured by common understanding and practice. Zachary v. State, 269 So.2d 669 (Fla.1972); Brock v. Hardie, 114 Fla. 670, 154 So. 690 (1934).

Section 817.563 defines an offense having two constituent factual requirements that must be shown. The first is for a person to agree, consent, or offer to sell a controlled substance to another. The second is for the person to then provide “any other substance in lieu of such controlled substance.” These two requirements are based on a reading of the plain language of the statute and are set forth with sufficient clarity to withstand constitutional scrutiny.

The offense defined by section 817.-563 is designated as a third-degree felony or a second-degree misdemeanor depending upon the controlled substance “with respect to” which the violation occurs. It is patently obvious that this refers to the controlled substance with respect to which the agreement, consent, or offer to sell is made. Thus there is no vagueness about the possible penalty.

The remaining constitutional problem identified in the district court’s opinion is the argument that the statute bears no reasonable relationship to a legitimate state purpose. It should be kept in mind that in the absence of an impingement upon constitutional rights, a violation of limitations on state power, or a suspect classification, an act of the legislature is presumed to be constitutional. The burden is on the challenger to demonstrate that the law does not bear a reasonable relationship to a proper state objective. We believe that the legislature could reasonably have concluded that the providing of bogus drugs in lieu of controlled substances unlawfully agreed or offered to be sold is conduct inconsistent with the health and welfare of the people of this state. See, e.g., State v. Yu, 400 So.2d 762 (Fla.), appeal dismissed, 454 U.S. 1134, 102 S.Ct. 988, 71 L.Ed.2d 286 (1981). It is not necessary that we provide specific justifications for the statute in terms of state policy as was undertaken by the court in State v. Thomas. The possible state purposes offered by the court in that opinion are plausible, if not compelling. It is likely that Judge Anstead, in his dissenting opinion below, came closest to discerning the actual legislative impetus: where drug enforcement agents plan a controlled purchase in order to prosecute the suppliers, all their efforts are in vain when the drugs supplied turn out not to be controlled substances. 444 So.2d at 65.

We conclude that section 817.563 is a drug abuse law rather than a fraud law; that a general intent is required and is all that need be required; that neither the proscriptive parts nor the penalty provisions of the law are vague; and that the law is rationally related to a legitimate state purpose.

For the foregoing reasons we quash the decisions of the district court of appeal in the cases under review. Case no. 64,966 is remanded with directions to reverse the order granting the motion to dismiss. Case nos. 64,967 and 64,968 are remanded with directions to affirm the orders denying the motions to dismiss.

It is so ordered.

OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur.

ADKINS, J., dissents.

      . We use the term "bogus drugs” as a short-term way of referring to the substances supplied in violation of section 817.563. "Bogus drugs" are to be distinguished from "counterfeit drugs.” Section 831.31, Florida Statutes (1981), prohibits the sale, manufacture, or delivery of "counterfeit controlled substances." That statute is directed at the false or unauthorized labelling of controlled substances that are available for use by medical prescription or other authorization. Both section 817.563 and section 831.31 were enacted as parts of chapter 81-53, Laws of Florida. Chapter 81-53 took effect October 1, 1981.


text:
    Teresa R. GROWDEN, also known as Cheryl Lynn Powell, Petitioner, v. STATE of Florida, Respondent.
    No. 64407.
    Supreme Court of Florida.
    Feb. 7, 1985.
    Jerry Hill, Public Defender and Robert F. Moeller, Asst. Public Defender, Tenth Judicial Circuit, Tampa, for petitioner.
    Jim Smith, Atty. Gen. and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for respondent.
   BOYD, Chief Justice.

This cause is before the Court on petition for review of the decision of the district court of appeal in State v. Growden, 437 So.2d 783 (Fla. 2d DCA 1983). The district court, in deciding the state’s appeal from an order dismissing a criminal charge, held a state statute valid against a constitutional challenge, thus giving this Court jurisdiction to review the decision. Art. V, § 3(b)(3), Fla. Const. We approve the decision of the district court of appeal.

The question presented is whether section 817.563, Florida Statutes (1981), is constitutional. The statute makes it unlawful to agree, consent, or offer to sell a controlled substance and then in lieu thereof to sell a substance other than a controlled substance. The statute is assailed on both substantive and procedural due process grounds. It is argued that the statute fails to contain a required intent element; that it is vague; that it improperly burdens the defendant with proving his innocence, and that it bears no reasonable relationship to a legitimate state objective.

We reject all of these arguments and declare section 817.563 to be constitutional. See State v. Bussey, 463 So.2d 1141 (Fla. 1985).

The decision of the district court of appeal is approved.

It is so ordered.

OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur.

ADKINS, J., dissents.


author: PER CURIAM.

text:
    Gregory A. MASKE, Francis Alan Ploegart, and Gary Andrew Uecker, Petitioners, v. STATE of Florida, Respondent.
    No. 65113.
    Supreme Court of Florida.
    Feb. 7, 1985.
    Jerry Hill, Public Defender and Amelia G. Brown, Asst. Public Defender, Tenth Judicial Circuit, Tampa, for petitioners.
    Jim Smith, Atty. Gen., and Gary 0. Welch, Asst. Atty. Gen., Tampa, for respondent.
   PER CURIAM.

The decision of the district court of appeal is approved on the authority of State v. Bussey, 463 So.2d 1141, 446 So.2d 1091 (Fla.1985).

It is so ordered.

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

ADKINS, J., dissents.


text:
    STATE of Florida, Petitioner, v. Paul LOWELL, Respondent.
    No. 65140.
    Supreme Court of Florida.
    Feb. 7, 1985.
    Jim Smith, Atty. Gen. and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Richard L. Jorandby, Public Defender and Thomas F. Ball, III, Asst. Public Defender, 15th Judicial Circuit, West Palm Beach, for respondent.
   PER CURIAM.

The decision of the’ district court of appeal is quashed on the authority of State v. Bussey, 463 So.2d 1141, 452 So.2d 10 (Fla. 1985). The case is remanded with directions to reconsider the appeal in light of that decision.

It is so ordered.

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

ADKINS, J., dissents.


text:
    John Eummel BRIGHT and Arthur Davis, Petitioners, v. STATE of Florida, Respondent.
    No. 65689.
    Supreme Court of Florida.
    Feb. 7, 1985.
    James B. Gibson, Public Defender and David A. Henson, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for petitioners.
    Jim Smith, Atty. Gen. and Richard B. Martell, Asst. Atty. Gen., Daytona Beach, for respondent.
   PER CURIAM.

The decision of the district court of appeal, reported as State v. Bright, 451 So.2d 880 (Fla. 5th DCA 1984), is approved on the authority of State v. Bussey, 463 So.2d 1141 (Fla.1985).

It is so ordered.

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

ADKINS, J., dissents.


author: ALDERMAN, Justice.

text:
    DIXIE NATIONAL BANK OF DADE COUNTY, etc., Plaintiff, v. EMPLOYERS COMMERCIAL UNION INSURANCE COMPANY OF AMERICA, etc., Defendant-Third Party, Plaintiff-Appellant, v. Dr. Thomas F. CARNEY, etc., Third Party Defendants-Appellees.
    No. 65118.
    Supreme Court of Florida.
    Feb. 7, 1985.

      James E. Tribble of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for plaintiff-appellant.
    Edward G. Rubinoff of Preddy, Kutner & Hardy, and Michael J. Cappucio of Fowler, White, Burnett, Hurley, Banick & Strickroot, Miami, for defendants-appellees.
   ALDERMAN, Justice.

The United States Circuit Court of Appeals for the Eleventh Circuit has certified the following questions for this Court to address because they are questions of Florida law with no controlling precedent in the decisions of this Court. These questions are:

(1) In an action by a fidelity bond insurer against the directors of a bank and the directors’ insurer for the directors’ negligence in failing to prevent embezzlement losses, if the fidelity bond insurer obtains rights against the insured’s directors through legal or equitable subro-gation and also obtains a written assignment of claims from the bank, does Florida law require the fidelity insurer to establish superior equities as between the fidelity insurer and the directors and their insurer in order to recover?
(2) If so, does the fidelity insurer’s status as a paid surety establish superior equities in favor of the insured’s directors and the directors’ insurer where the fidelity insurer merely asserts the directors’ negligence as the basis for recovery?

Consistent with the decision of the United States District Court, Southern District of Florida, we answer these questions in the affirmative.

The facts are succinctly stated in the certificate. The Dixie National Bank of Dade County (“the Bank”) commenced this litigation against the appellant, Employers Commercial Union Insurance Company of America (“Employers”), to recover on a “banker’s blanket bond” policy of insurance for an embezzlement loss resulting from the defalcations of the Bank’s former cashier. The Bank’s insurer, Employers, denied the claim, asserting subrogation rights arising upon the payment of the Bank’s claim. Employers then filed a third-party complaint against the directors of the Bank and American Home Life Insurance Company (“Home”), the directors’ insurer, under a director’s liability policy.

Employers and the Bank settled their dispute, and the Bank assigned Employers its right to any claims which it might have against the third-party defendants. The settlement agreement provided in part:
By the execution of this Agreement, Dixie National Bank of Dade County does hereby set over, assign, transfer and convey all of its right, title and interest in and to any claims it may have against all parties which may have caused, directly or indirectly, any of the losses set forth in the Complaint referred to above now pending in the United States District Court for the Southern District of Florida.

The third-party defendants filed a motion for judgment on the pleadings on the theory that the equitable nature of subrogation precludes a bank’s liability insurer from seeking indemnity from the bank’s directors for loss occasioned by the fraudulent acts of an employee of the bank. Specifically, the third-party defendants argued that Employers did not have superior equities and therefore could not be subrogated to any claims that the Bank may have against the directors and Home. They also alleged that Employers, as the Bank’s fidelity insurer, could not assert, by way of a subrogation right, the directors’ negligence as a basis for recouping its payment to the Bank because any such negligence was one of the risks assumed pursuant to the insurance agreement. Employers then filed a supplemental third-party complaint alleging the settlement agreement as a supplemental basis for its claim against the directors and their insurer.

The district court treated the motion for judgment on the pleadings as a motion for summary judgment and entered partial summary judgment against Employers on the issue of ordinary negligence. In his order, the district judge adopted the reasoning of First National Bank of Columbus v. Hansen, 84 Wis.2d 422, 267 N.W.2d 367 (1978), and held that no right of subro-gation exists in favor of a fidelity insurer against its insured’s directors for ordinary negligence in the conduct of their supervisory duties. On the issue of the Bank’s assignment of its claims, the court rejected Employers’ attempt to improve its position, holding that notwithstanding the assignment subrogation would be enforced only in favor of a meritorious claim and after a balancing of the equities. The court concluded that because Employers, a compensated surety, cannot establish equities superior to those of the directors, a balancing of the equities precluded Employers from asserting a subrogation claim against the Bank’s directors for their ordinary negligence. The court added that Employers would be entitled to subrogation upon proof of culpability by the third-party defendants in the nature of fraud or bad faith.

Thereafter, in order to narrow the remaining issues, the parties executed a pretrial stipulation. In brief summary, these stipulations recited that the embezzling employee, Robert Hansen, was employed by the Bank commencing in 1964 and was a vice president/cashier of the Bank from 1971 until his discharge in May of 1974, following discovery of his defalcations. During the period of his employment at the Bank, particularly while he was cashier, Hansen was a trusted employee and was head of its operations.

The embezzlements consisted primarily of diverting checks for payment of interest on securities from correspondent banks to checking accounts rather than recording them in interest receivable accounts and diverting interest credits received on federal funds sold to checking accounts rather than crediting them to the Bank’s income account. Hansen accomplished these em-bezzlements by preparing general ledger tickets that channelled the income and money of the Bank to his own account.

The Bank’s directors first became aware of Hansen’s embezzlements during May of 1974. Prior to that time, the Bank had not been involved in any other defalcations by any other employees, and the directors were unaware of any problems involved with the handling of the Bank’s funds. The parties stipulated that the directors did not personally gain or stand to gain from Hansen’s embezzlements. Employers also conceded that its proof does not establish actual knowledge of the embezzlement, dishonest purpose, or furtive design. Employers contended that its evidence would establish that the directors were grossly negligent for failing properly to direct and manage the Bank’s affairs.

The parties filed a joint motion for clarification in which they requested the district court to define more specifically the meaning of “bad faith” as used in the court’s order granting partial summary judgment. They asked the court to determine if proof of gross negligence without personal gain by the directors would be sufficient for Employers to sustain its cause of action. In response, the court entered an order stating that, in the context of a subrogation action by a compensated surety against the directors of its insured for an embezzlement loss, the term “bad faith” implies the conscious doing of a wrong because of dishonest purpose and requires a person to act affirmatively with furtive design or ill will. In that case, it would encompass actual knowledge on the part of the directors of Hansen’s embezzlement scheme and their failure to act on such knowledge.

Based on the stipulated facts, the district court concluded that there was no evidence that the directors committed bad faith or fraud; therefore, Employers did not have a subrogable cause of action against the directors or Home to recover payments to the Bank on the embezzlement claim. Accordingly, the district court entered final summary judgment against Employers, and Employers appealed to the Eleventh Circuit.

Employers emphasizes the distinction between legal (or equitable) subrogation and conventional subrogation and contends that the balancing of equities does not apply in conventional subrogation claims based on an assignment. The directors, appellees in the federal court, respond that subrogation in Florida is an equitable doctrine controlled by the relative equities of the matter and that to succeed in subrogation, a claimant must affirmatively establish superior equities in himself as against the party against whom subrogation is sought to be enforced. Subrogation in Florida, they maintain, is not an absolute right. Appel-lees assert that Employers cannot avoid the requirement of establishing superior equities merely by obtaining a written assignment from the Bank. This would emphasize form to the detriment of substance. They point out that the distinction between legal subrogation and conventional subro-gation is significant only in determining the source of the right and not in delineating the parameters of the remedy available to the assignee party. A conventional subro-gee obtains standing to assert a subrogation claim which he would otherwise lack. Conventional subrogation allows him to stand in the shoes of those who are subro-gees by operation of law, and he thus must meet the same equitable requirements that courts impose on those subrogees. They state that when Employers paid Dixie National under its claim, it attained the rights the law accords a surety to claims against third persons, and Employers’ position was neither improved nor lessened by virtue of the assignment.

We agree with appellees and hold that, in Florida in an action by a fidelity bond insurer against the directors of a bank and their insurer for the directors’ negligence in failing to prevent embezzlement losses, in order to recover, the fidelity insurer is required to establish superior equities as between the fidelity insurer and the directors and their insurer where the fidelity bond insurer has obtained rights against the directors through legal or equitable subrogation and also has obtained a written assignment from the bank. We agree with the rationale of the United States District Court which explained:

Florida adheres to the general rule that an insurer is entitled to subrogation to recover from any third party who is legally liable for the actual loss sustained by its insurer. Miami National Bank v. Pennsylvania Insurance Company, 314 F.Supp. 858 (S.D.Fla.1970); 18A Fla.Jur. § 945; 11 Appleman, Insurance Law and Practice § 6564 (rev.ed.1972). The right to subrogation, however, is not absolute, but depends upon the equities and attending facts and circumstances of each case. Companía Anonima Venezolana de Nav. v. A.J. Perez Exp. Co., 303 F.2d 692 (5th Cir.1962). In order to state a cause of action, the subrogation claimant must affirmatively establish superior equities in himself over the one against whom subrogation is sought to be enforced. See Ruwitch v. First National Bank of Miami, 291 So.2d 650 (Fla. 3d DCA 1974), cert. denied, 305 So.2d 196 (Fla.1974).

Dixie National Bank v. Employers Commercial Union Insurance Co. of America v. Carney, No. 75-768-CIV-EBD (S.D.Fla. 1982), slip op. at 2. The district court rejected Employers’ attempt to improve its position as a “conventional subrogee” because of the Bank’s assignment of claims to it and quoted the following bench-mark definition of subrogation from our early decision of Boley v. Daniel, 72 Fla. 121, 72 So. 644, 645 (1916):

Subrogation is the substitution of one person in the place of another with reference to a lawful claim or right. Subrogation arises by operation of law, where one having a liability or a right or a fiduciary relation in the premises pays a debt due by another under such circumstances that he is, in equity, entitled to the security or obligation held by the creditor whom he has paid. This is called “legal subrogation.” Conventional subrogation depends upon a lawful contract, and occurs where one having no interest in or relation to the matter pays the debt of another, and by agreement is entitled to the securities and rights of the creditor so paid.

The district court correctly explained:

While Florida courts have since recognized the two types of subrogation, see Goodwin v. Schmidt, 5 So.2d 64 (Fla. 1941); Shelby Mutual Insurance Company of Shelby, Ohio v. Birch, 196 So.2d 482 (Fla. 4th DCA 1967); Bruer v. Sanford Atlantic National Bank, 247 So.2d 764 (Fla. 4th DCA 1971); Dispatch Services, Inc. v. Airport Bank of Miami, 266 So.2d 127 (Fla. 3d DCA 1972); Taussig v. Insurance Company of North America, 301 So.2d 21 (Fla. 2d DCA 1974); Indiana Insurance Company v. Collins, 359 So.2d 916 (Fla. 3d DCA 1978); Ranger Insurance Company v. Travelers Indemnity Company, 389 So.2d 272 (Fla. 1st DCA 1980), a per se rule that equitable principles have no application in conventional subrogation cases has never been adopted. The courts have merely applied the distinction to describe situations which call for the application of the subrogation doctrine as arising either by agreement or by operation of law. E.g., Goodwin v. Schmidt, supra; Ranger Insurance Company v. Travelers Indemnity Company, supra; 12 Fla.Jur. 2d, Subrogation § 17.
Whether a right has its source in legal or conventional subrogation, the better rule is that it will be enforced only in favor of a meritorious claim, and after a balancing of the equities.... In this case, the written assignment adds nothing to the insurer’s subrogation claim. Once Employers paid the loss to its insured, it became equitably subrogated to any claims the Bank might have against third parties. As between Employers and the Bank, liability was extinguished and no valid assignment giving rise to a separate cause of action against the Directors existed. United States Fidelity & Guaranty Co. v. First National Bank in Dallas, supra. See 6A Appleman, Insurance Law and Practice, § 4053 (rev. ed. 1972).

Dixie National Bank, slip op. at 3-4 (footnote omitted). It properly discussed the inapplicability of Dispatch Services, Inc. v. Airport Bank of Miami as follows:

In Dispatch Services, supra, the district court of appeal upheld a surety’s right of subrogation against a bank for wrongful payment of a check forged by the insured’s employee, where the insured depositor assigned to the surety all of its rights against the bank. In reaching its decision, the court relied upon the well established principle that a bank is absolutely liable to its depositor for payment of a forged cheek. Clearly, strong policy considerations shifted the balance of equities and mandated the result in Dispatch, and not a per se rule precluding equitable considerations from conventional subrogation claims.

Dixie National Bank, slip op. at 4 n. 4.

We also hold that the fidelity insurer's status as a paid insurer does establish superior equities in favor of the insured’s directors and their insurer where the fidelity insurer merely asserted the directors’ negligence as a basis for recovery. We agree with the district court’s rationale for this holding. The district court stated:

In the area of fidelity insurance, the law is well settled that negligence or inattention, or anything short of actual discovery on the part of the insured employer will not defeat recovery under a fidelity bond covering the default of a dishonest employee, unless it is otherwise provided in the contract. American Employers’ Ins. Co. v. Cable, 108 F.2d 225 (5th Cir.1939); Miami National Bank, supra. Cf. Phoenix Indemnity Co. v. Union Finance Co., 54 So.2d 188 (Fla. 1951) (customary rule that knowledge of an agent or officer of a corporation is imputed to the corporation is inapplicable under fidelity bond claims). The fidelity insurer, in exchange for premiums, assumes the risk of negligence on the part of the insured, and a fortiori, of the negligent actors. Thus, the same equitable considerations which preclude an insurer from maintaining a subrogation suit against its own insured, 18A Fla.Jur. § 945, preclude subrogation against the negligent directors of the insured. A fidelity insurer may not avoid its assumed risk by paying on the bond and later suing the directors of the insured on a negligence theory. Hansen, supra 267 N.W.2d at 372.

Id., slip op. at 2-3.

In Hansen, a bank sued two bonding companies to recover on two fidelity bank bonds which insured the bank against losses resulting from fraudulent and dishonest acts of its employees. The bonding companies impleaded the board of directors of the bank through a third-party complaint which alleged that the losses sustained by the bank were proximately caused by the ordinary negligence of these directors. In the event they were found liable on the bonds, the bonding companies alleged a right of subrogation to the bank’s claim against its directors for their negligence which had permitted the defalcations. The trial court entered summary judgment dismissing the third-party complaint on the merits. In affirming,, the Wisconsin Supreme Court held that the balance of equities would not permit the subrogation action against the directors. It reasoned:

[T]he existence of a claim in favor of a bank against its officers and directors for negligence is not conclusive of the right of a fidelity insurer to be subrogat-ed to that claim. A fidelity insurer will not be subrogated to the rights of its insured unless the equities in favor of the fidelity insurer are greater than those of the person against whom subro-gation is invoked....
The equitable nature of subrogation does not permit an insurer to exercise a right of subrogation against its own insured or an additional insured.... The rationale for this rule is that the insurer “accepts not only the risk that some third party may cause the casualty but also that its own insured may negligently cause the loss. The insurer, however, has consented to this latter risk in exchange for the premiums received for his compensation obligation.” ...
We think the equitable principles which deny an insurer the right of subro-gation against its own insured are also applicable here. In this case the negligence of the Bank in permitting Hansen’s wrongful acts to go undiscovered is but the negligence of its officers and directors whose duty is to supervise the operations of the Bank. Since the bonding companies have no claim based on negligence against the Bank, we hold that equity will not permit the fidelity insurer to avoid that result by suing the officers and directors individually. In First National Bank of Crandon, supra, 150 Wis. at 610, 137 N.W.2d 742, we pointed out that mere negligence of the officers of the insured in failing to discover the default of a bonded employee is one of the risks covered by the fidelity insurance, and for that reason such negligence is no defense to payment on the bond. Though the bonding companies do not here assert the negligence of these officers and directors as a defense to liability upon the bond, the fact that the negligence of the bank’s agents is a risk assumed by the fidelity insurer in exchange for the premium also enters into the balance of equities in determining whether a right of subrogation is appropriate. The bonding companies have assumed the risk of that negligence which is imputable to the Bank, and we conclude, therefore, that the bonding companies may not avoid that risk simply by paying on the bond and suing these officers and directors as individuals thereafter.

267 N.W.2d at 371-72. We agree with this rule announced by the Wisconsin Supreme Court.

Accordingly, we answer both questions certified in the affirmative.

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


author: ADKINS, Justice. OVERTON, Justice,

text:
    Donald Roy JONES, Petitioner, v. UTICA MUTUAL INSURANCE COMPANY, Respondent.
    No. 61681.
    Supreme Court of Florida.
    March 7, 1985.

      Joel D. Eaton and Joel S. Perwin of Pod-hurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, Miami, and Wagner, Cunningham, Vaughan & McLaughlin, P.A., Tampa, for petitioner.

      Timón Y. Sullivan of Shackleford, Farri- or, Stallings & Evans, Tampa, for respondent.
   ADKINS, Justice.

This is a petition to review Utica Mutual Insurance Co. v. Jones, 408 So.2d 769 (Fla. 2d DCA 1982), which we find expressly conflicts with Mapoles v. Mapoles, 350 So.2d 1137 (Fla. 1st DCA 1977), cert. denied, 364 So.2d 888 (Fla.1978). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. The issue concerns the applicability of section 767.01, Florida Statutes (1979), which provides that dog owners shall be strictly liable for any damage done by their dogs. The district court held the statute did not apply under the circumstances of this case. We disagree.

Petitioner, Donnie Jones, a twelve-year-old boy, brought this civil action against Roy Davis, the respondent’s insured, seeking damages for injuries sustained when he was struck by a wagon being pulled by Davis’ dog. The accident occurred after Donnie and two other children, one of them Davis’ son, had been playing with the dog which they had tied to a small wagon. Davis’ dog spotted another dog and ran after it. As the dog ran past Donnie, the wagon struck him causing a permanent injury to his leg.

The suit filed by petitioner was predicated on section 767.01, which provides: “Owners of dogs shall be liable for any damage done by their dogs to persons.” The trial court directed a verdict in favor of petitioner on the issue of liability, finding Davis to be strictly liable for petitioner’s injury under the statute. In reversing and holding that section 767.01 did not apply under the facts of this case, the district court noted the well-established rule that “[sjtriet liability has been confined to consequences which lie within the extraordinary risk whose existence calls for such special responsibility.” 408 So.2d at 771 (quoting Prosser, Law of Torts, 518 (4th ed. 1971)). The court then determined that, based upon a review of the statute’s history, the legislature intended to impose strict liability upon a dog owner only for those risks created by the act of ownership. The court expressly held that “[statutory liability pursuant to section 767.01 should be imposed upon the dog owner only where the damage done by the dog is the direct cause of the injury.” Id. (citing Smith v. Allison, 332 So.2d 631 (Fla. 3d DCA 1976)). In deciding whether a dog directly caused an injury, the district court articulated a test under which a court must determine “whether the injury was caused by some canine characteristic within the contemplation of the statute.” Id.

Applying this test to the facts in this case, the district court found that although the dog exhibited canine characteristics within the contemplation of the statute when it chased the other dog, the act of chasing was not the direct cause of Donnie’s injury. Using a “but for” test, the district court found that had the wagon not been tied to Davis’ dog, no injury would have been inflicted because the dog did not come in contact with Donnie. Nor was the dog found to have taken any affirmative or aggressive action toward Donnie. Id. at 772 (citing Rutland v. Biel, 277 So.2d 807, 809 (Fla. 2d DCA 1973), and Smith v. Allison). The district court concluded that Donnie’s injury was not the result of the risk created by dog ownership, and held that section 767.01 did not apply to create strict owner liability.

The district court acknowledged that its decision conflicts with Mapoles v. Mapoles, 350 So.2d 1137 (Fla. 1st DCA 1977), cert. denied, 364 So.2d 888 (Fla.1978), and without any additional reasoning or analysis, adopted Judge Smith’s dissent in Mapoles because “the Mapoles decision extends the liability under section 767.01 far beyond that contemplated by the legislature ...” 408 So.2d at 772. In Mapoles, a St. Bernard dog was placed on the rear seat of a Volkswagon next to a loaded shotgun. The dog’s movements in the car caused the gun to discharge and injure someone outside the car. The Mapoles court noted that section 767.01 “virtually makes an owner the insurer of the dog’s conduct” and found the owner to be liable because the injury resulted from the affirmative act of the dog. 350 So.2d at 1138. In dissent, Judge Smith argued that it was only the animal’s “passive movement” which discharged the shotgun — not any characteristic which might be considered actively canine. Id. at 1139.

Such a view counsels a clear departure from the traditional standard of proximate causation. Clearly the injury in Mapoles would not have occurred “but for” the animal’s conduct which substantially contributed to the injury in an unbroken chain of events. It simply cannot be said that the explosion of the shotgun was such an overwhelming cause of the injury as to break the chain of causation and relieve the animal’s owner of responsibility. If this animal had not been present, the shotgun in all probability would have remained dormant in the back seat of the automobile, a danger to no one. Likewise, it is not enough to conclude, as the district court did here, that the dog was not the proximate cause of the injury because the injury would not have occurred “but for” the wagon.

In the ordinary negligence context, a defendant is liable for injury produced or substantially produced in a natural and continuous sequence by his conduct, such that “but for” such conduct, the injury would not have occurred. Such liability is not escaped in the recognition that the injury would not have occurred “but for” the concurrence or intervention of some other cause as well. The defendant is liable when his act of negligence combines with some other concurring or intervening cause in the sense that, “but for” the other cause as well, injury would not have occurred. See Bessett v. Hackett, 66 So.2d 694, 701, 753 (Fla.1953); Tampa Electric Co. v. Jones, 138 Fla. 746, 190 So. 26, 27 (1939). There is no question that the injury in this case would not have occurred “but for” the animal and that the animal’s behavior substantially contributed to the injury in a natural and continuous sequence of events. The standards of causation applicable in the case of ordinary negligence were amply satisfied in ,this case.

It is that difficulty — the difficulty of fashioning a workable and administrable alternative to the traditional notion of proximate causation — which compels approval of the holding in Mapoles and which compels our disapproval of the conclusions of the district court in this case. It is not enough to dismiss a case based on the observation that the injury was not caused by some canine characteristic within the contemplation of the statute. How is one to determine whether or not an animal’s behavior is sufficiently active, or canine, or dispositive of the outcome, so as to render the owner liable for its conduct? When does a dog exercise canine characteristics? There is simply no way to define or administer such a standard and the parties would be at a loss to evaluate when a dog can be found not to have acted like a dog. Is it meaningful to conclude the dog in this case was exhibiting canine characteristics when it chased another dog but acting less like a dog because it was tied to a wagon? We think not. The trial of a suit for damages should never degenerate to a battle of experts giving opinions as to whether a dog exercised canine characteristics or human characteristics.

Section 767.01 is a strict liability statute which has consistently been construed to virtually make an owner the insurer of the dog’s conduct. Donner v. Arkwright-Boston Manufacturers Mutual Insurance Co., 358 So.2d 21, 23 (Fla.1978). The cardinal rule of statutory construction is that plain and unambiguous language in a statute needs no construction and creates the obvious duty to enforce the law according to its terms. Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693, 694-5 (1918). The Mapoles court stated: “If the statute means what it says, the syllogism is clear: [Defendant] was the owner of the dog; damage was caused to a person by the dog; and thus the owner of the dog is liable for the damage done.” 350 So.2d at 1138 (footnote omitted). We reject the view that the legislature intended strict liability for dog owners in every instance where the actions of a dog are a factor in an injury. Clearly the rules of ordinary causation should apply. Thus, an affirmative or aggressive act by the dog is required. This “affirmative act” requirement is a reasonable safeguard insofar as it forbids the imposition of liability in cases in which the animal is merely a passive instrumentality in a chain of events leading to injury. Even a strict liability statute should not reach that far. This interpretation is consistent with the general notion of proximate causation, since other factors would constitute su-perceding or overwhelming causes when the dog is merely passive or retreating.

Thus, it also cannot be said that liability is only appropriate when the animal actually touches the plaintiff, for animals and people can cause injuries in a variety of ways without actually touching the injured party. Nor is there room in this strict liability statute for the avoidance of liability on the ground that the plaintiff or the owner or some third party also contributed to the injury. The implications of attempting to administer any of these alternative standards to this case in an attempt to distinguish this case on any of those bases would quickly become mired in metaphysics.

Our reasoning is in line with a number of previous cases decided under section 767.-01. In English v. Seachord, 243 So.2d 193 (Fla. 4th DCA 1971), cert. dismissed, 269 So.2d 136 (Fla.1972), plaintiff was frightened by a growling dog. He jumped on top of a car and injured his back. Clearly the injury would not have occurred “but for” the car and, as in this case, there was no contact whatever between the animal and the plaintiff. A verdict for the plaintiff was sustained and in dismissing certiorari, this Court expressly approved of that holding.

In Brandeis v. Felcher, 211 So.2d 606 (Fla. 3d DCA), cert. denied, 219 So.2d 706 (Fla.1968), the plaintiff, frightened by two dogs barking at him behind a fence, ran into the street and was run over by an automobile. The injury would not have occurred “but for” the car, and again there was no contact between the animal and the plaintiff. A verdict for the plaintiff was sustained.

The court in Allstate Insurance Co. v. Greenstein, 308 So.2d 561 (Fla. 3d DCA 1975), upheld a summary judgment for the plaintiff on the question of liability where plaintiff had swerved his car to avoid a dog which had run into the street and was injured in a subsequent crash after avoiding any contact with the dog. Again, the injury would not have occurred “but for” the automobile and there was no contact between the animal and the plaintiff. Nevertheless, because the injury also would not have occurred “but for” the animal, summary judgment for the plaintiff was upheld.

In this case the dog was acting in an affirmative and an aggressive manner, not docile or passive. That affirmative behavior brought the dog into direct contact with the petitioner in a manner which caused injury to petitioner’s leg. Thus, we find the respondent’s insured, Davis, as owner of the dog, to be liable to the petitioner under section 767.01.

Another point for our consideration concerns whether Davis’ insurance policy with respondent covers Donnie’s injuries. The policy covers accidents which occur with respect to the conduct of the business. The district court held that there was no coverage under the facts of the instant case. We disagree.

It is well settled that the construction of an insurance policy is a question of law for the court. See Zautner v. Liberty Mutual Insurance Co., 382 So.2d 106, 107 (Fla. 3d DCA 1980). However, it is for the jury to determine whether the facts of the case fall within the scope of coverage as defined by the court: “[wjhether a certain set of facts exists to bring a loss to the insured within the terms of a policy is an issue to be determined by the trier of fact.” State Farm Fire & Causalty Co. v. Licthman, 227 So.2d 309, 311 (Fla. 3d DCA 1969).

There was sufficient evidence upon which the jury could have concluded, as it did, that the injuries to Donnie occurred with respect to the conduct of Davis’ business. Thus, we find that the trial court did not err in allowing the jury to decide that question.

Evidence exists that the boys were performing a business function at the time of the accident, having stopped their play with the dog to turn on the nursery’s irrigation system. Furthermore, there is ample evidence to the effect that the dog was performing her business function as a watchdog when the injury occurred. The evidence shows that Shane functioned as a watchdog on the property and the performance of that function was nothing more than the act of running free in the nursery after it was closed to the public. The fact that the dog worked after the nursery was closed to the public is of no consequence. Shane was a watchdog, and for this dog, business hours began precisely when the business was closed to the public. Whether tied to the wagon or not, Shane had the run of the nursery and was capable of her watchdog functions. Shane could hear, see, smell, or otherwise sense the presence of strangers on the premises. There was nothing about the wagon which prevented Shane from performing that function.

There was ample evidence to submit the issue of coverage to the jury and sufficient evidence to support the jury’s verdict. Accordingly, we quash the decision of the district court and remand this cause to the district court of appeal with instructions to affirm the judgment of the trial court.

It is so ordered.

BOYD, C.J., and McDONALD, EHRLICH and SHAW, JJ., concur.

OVERTON, J., dissents with an opinion.

ALDERMAN, J., dissents.

OVERTON, Justice,

dissenting.

I dissent. I cannot agree with the majority’s view that the legislature intended chapter 767 to establish a means for recovery on the basis of strict liability when a person is struck by a little boy’s wagon that is pulled by a dog but would deny recovery to a business invitee, properly on the premises, who is viciously bitten in the scrotum by a guard dog. See Belcher v. Stickney, 450 So.2d 1111 (Fla.1984).

In the instant case, Donnie, a twelve-year-old boy, was invited over to his friend Michael’s house to play. The boys tied Michael’s German shepherd, Shane, to a small red wagon in an attempt to have Shane pull them. When Shane proved too weak to pull them, the boys began walking, with Shane following still tied to the wagon. As this entourage progressed, Shane spotted Donnie’s dog and ran after it. As Shane ran past Donnie, the wagon struck Donnie, causing a permanent injury to his leg. Shane never came in contact with Donnie.

In concluding that strict liability is not applicable in this case, I agree with the district court that it was the intent of the legislature that “[statutory liability pursuant to section 767.01 should be imposed upon the dog owner only where the damage done by the dog is the direct cause of the injury.” Utica Mutual Insurance Co. v. Jones, 408 So.2d 769, 771 (Fla. 2d DCA 1982) (citing Smith v. Allison, 332 So.2d 631 (Fla. 3d DCA 1976)). It does not appear reasonable to me that the legislature intended strict liability to apply for injuries which occur from little red wagons tied to dogs by small boys or, for that matter, from injuries which occur when a Saint Bernard is put in the backseat of a car and the dog causes a loaded shotgun also placed in the backseat to fire. See Mapoles v. Mapoles, 350 So.2d 1137 (Fla. 1st DCA 1977), cert. denied, 364 So.2d 888 (Fla.1978).

I would recede from Donner v. Arkwright-Boston Manufacturers Mutual Insurance Co., 358 So.2d 21 (Fla.1978), and Carroll v. Moxley, 241 So.2d 681 (Fla. 1970), to the extent that they hold that chapter 767 superseded the common law in all situations covered by the statute. A reasonable interpretation of the statute is that strict owner liability was intended to be imposed for injury attributable to canine characteristics. This special responsibility of a dog owner which establishes the basis for strict liability must, in my view, flow from the extraordinary risks created by canine characteristics such as “biting, barking, chasing, jumping, vicious or rambunctious conduct,” Mapoles, 350 So.2d at 1139 (Smith, J., dissenting), or some other specific affirmative or aggressive act by a dog toward the injured party. In section 767.04 certain total immunities from owner liability are granted. It is my view that it was clearly .the intent of the legislature that if such canine characteristics are not exhibited in a given case or if the immunity circumstances apply, then strict owner liability cannot be imposed. In such a case, however, it appears to me that the principles of ordinary negligence may still be applied as an alternative theory of recovery and that the legislature had no intent to abrogate that cause of action.

In the instant case, although the injury occurred when Shane exhibited canine characteristics by chasing another dog, there was neither contact between Shane and Donnie nor any affirmative or aggressive act by Shane toward Donnie. The injury occurred because the wagon was tied to Shane, not because Shane was a dog. Any cause of action here must be on the basis of common law negligence, not statutory strict liability. To allow recovery on the basis of strict liability in this instance, and then, as the majority has done, deny any type of recovery for a vicious dog bite under the circumstances in Belcher v. Stickney results in a totally unreasonable construction of the statute.

For the reasons expressed, I would approve the Second District’s decision in the instant case, disapprove the First District’s decision in Mapoles, and recede from our prior decisions in Donner and Carroll. This, in my view, is necessary to provide a reasonable and logical construction of the statute.


author: BOOTH, Judge. WENTWORTH, Judge,

text:
    DEPARTMENT OF REVENUE, State of Florida, Appellant, v. MOBILE HOME INDUSTRIES, INC., Appellee.
    No. AK-119.
    District Court of Appeal of Florida, First District.
    Sept. 26, 1984.
    Jim Smith, Atty. Gen. and Jeff Kielbasa, Asst. Atty. Gen., Tallahassee, for appellant.
    P. Kevin Davey of Douglass, Davey & Cooper, Tallahassee, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from the summary final judgment of the Circuit Court, Leon County, holding appellee entitled to credit for sales tax paid pursuant to Section 212.17(2), Florida Statutes (1977). The question presented is whether appellee is disqualified from receiving the credit or refund authorized by Section 212.17(2), as contended by appellant, because of the procedures followed on the sale, repossession, and resale of the tangible personal property involved.

Florida Statutes (1979), Section 212.17(2), provide:

A dealer who has paid the tax imposed by this chapter on tangible personal property sold under a retained title, conditional sale, or similar contract, or under a contract wherein the dealer retains a security interest in the property pursuant to chapter 679, may take credit or obtain a refund for the tax paid by him on the unpaid balance due him when he repossesses (with or without judicial process) the property, in the same manner as he may obtain a credit or a refund under subsection (1) of this section upon the return of purchases. When such repossessed property is resold, the sale is subject in all respects to the tax imposed by this chapter.

The case was tried to the court on a stipulated statement of facts under which the parties agreed that appellee, a “dealer” under Section 212.17, Florida Statutes (1977), in, and seller at retail of, mobile homes, properly collected and remitted sales taxes due under Chapter 212, Florida Statutes (1977), on the initial sales of mobile homes and, again, on the resale after repossession from a defaulting purchaser of mobile homes.

Attached to the stipulation is a “Retail Installment Contract-Mobile Home-Security Agreement,” which the parties agree is a true copy of the instrument typically used by appellee in making the sales during the period of time in question. The contract for sale describes the seller as the “Secured Party” and provides:

As security for the payment of the Total Payments, Purchaser hereby grants a Security Interest in Vehicle and in the proceeds thereof to Seller and agrees that Seller is to have the rights of a Secured Party under the Uniform Commercial Code with respect thereto and with respect to this Contract. Purchaser agrees not to remove Vehicle permanently from the filing district in which Purchaser’s address (above) is located without the written consent of Seller.

After setting out the price, down payment, and number and amount of monthly installments to be paid, the agreement provides:

DESCRIPTION OF SECURITY INTEREST: Seller has a security interest under the Uniform Commercial Code in Vehicle and proceeds thereof to secure payment and performance of Purchaser’s obligations under Retail Instalment Contract, and any additional indebtedness represented by amounts which may be expended by Seller (1) in release or discharge of taxes, liens and encumbrances and (2) to procure required physical damage insurance on Vehicle as provided in this Retail Installment Contract.

The contract further states: “This contract is hereby accepted by the Seller and assigned under the terms of the assignment on the reverse, to COMMERCIAL CREDIT CORPORATION.” On the reverse side, the contract provides: “Seller shall have a Security Interest in the Vehicle until all amounts owing hereunder are fully paid in cash. This contract may be assigned by Seller or the payment thereof renewed or extended without passing title to Vehicle to Purchaser,” and, under the “SELLER’S ASSIGNMENT,” provides that the seller transfer the contract and all of the seller’s right, title, and interest thereto to Commercial Credit.

The agreement between the seller and the credit company entitled “Repurchase Agreement,” also attached to the parties’ stipulation, and this agreement, as well as other verbal agreements between the seller and the financing company, are summarized by the parties in their stipulation as follows:

That during the period March 1, 1973 through March 31,1976, Plaintiff entered into financing agreements with certain financial institutions; in most instances, Commercial Credit Corporation. These agreements provided that the financial institution would purchase finance papers from Plaintiff with recourse on mobile homes sold by Plaintiff on credit. The recourse agreement and other verbal agreements with the finance institutions provided, inter alia, that in the event of a default, Plaintiff would be obligated to attempt to find another purchaser for the mobile home.
In those instances where no new purchasers could be found within the time period allowed by the agreements, Plaintiff re-purchased the contract from its financing source, re-acquired legal title (which had been issued in the purchaser’s name), and was allowed a refund or tax credit under Section 212.17(2), Florida Statutes.
In those instances where a new purchaser could be found within the time period allowed by the agreements, Plaintiff handled all aspects of the new sale, had the title transferred to the new purchaser; but was denied a refund or tax credit taken pursuant to Section 212.-17(2), Florida Statutes.
In either situation, tax is collected and remitted to Defendant in connection with the subsequent sale or transfer of the mobile home, (emphasis added)

The parties agreed by stipulation that in those instances where appellee repurchased the contract of a defaulting buyer from appellee’s financing source and reacquired the legal title prior to reselling the mobile home to a second purchaser, the appellant allowed a refund or tax credit under Section 212.17(2). However, in those instances where appellee found a second purchaser for the repossessed mobile home but had title transferred directly from the defaulting first purchaser to the new purchaser, with the new purchaser assuming the contractual obligation to make payments to the financing source, the refund or credit was denied. The same contract, assignment, and financing agreement were entered into in both instances.

Thus, the Department of Revenue (DOR) determined that in order to claim the credit or refund where financing arrangements had been made, the dealer had to first repurchase the contract from the financing agent and reacquire the title in the dealer’s name before resale to the second purchaser. We are not here concerned with the validity of the appellant’s rule requiring this particular form of transaction since it was not in effect at the time of the assessments here. The statute itself does not preclude financing arrangements or require that one using such arrangements follow a particular form of transaction beyond that stated as to the type of contracts required under the statute.

The order of the trial court, after reciting the stipulation of the parties, ruled in part as follows:

This Court is of the opinion that DEPARTMENT OF REVENUE’S interpretation of Section 212.17(2), Florida Statutes, as it applies to MOBILE HOME INDUSTRIES, INC., is too narrow and amounts to a triumph of form over substance which was never intended by the Legislature. First, it should be noted that MOBILE HOME INDUSTRIES, INC. utilized the same form of sales contract for all its sales transactions. If, as DEPARTMENT OF REVENUE argues, this contract was not the type contemplated by the statute, then MOBILE HOME INDUSTRIES, INC. would not have been entitled to the refunds or credits as granted by DEPARTMENT OF REVENUE in the situations wherein title was re-acquired from the initial purchaser in default. Additionally, the contract in question provides for the retention of a security interest by the seller (MOBILE HOME INDUSTRIES, INC.).

We agree with the trial court that the contracts for sale of the mobile homes are, in fact, contracts which retain a security interest in the seller. This is expressly provided in the document itself. Thus, at the time of the initial sale, the dealer has a retained security interest. Nothing in the statute precludes the assignment of that interest for purposes of obtaining financing. It is also recognized by DOR that the seller/dealer, after the assignment, has a continuing obligation to the financial institution to obtain full payment of all contracts assigned to the institution, either by making payment itself or by obtaining a purchaser to assume payments on defaulted contracts. No basis appears in the statute, and DOR has presented none, which can justify the distinction made and denial of credit or refund in those instances where the dealer is able to find a second purchaser within the’ period of time (90 days) allowed by the assignment and to transfer title directly from the defaulting purchaser to the subsequent purchaser.

We agree with appellant that, in order to receive a credit or refund, the dealer must show that the requirements of the statute are met. It is also clear that the statute must be construed to effectuate legislative intent which is to allow the dealer credit or refund for the amount of sales tax attributable to the unpaid balance of the sale. The Legislature is not required to allow a credit or refund under the circumstance, but has seen fit to do so. National Brands Tire Company v. Department of Revenue, 383 So.2d 257 (Fla. 3d DCA 1980). Further, the Legislature has determined that the dealer, rather than the initial purchaser or the financing agency, is entitled to apply for the credit or refund. Little purpose is served, therefore, by appellant’s argument that the credit or refund is a “windfall” to the dealer because the dealer only collected the tax from the purchaser who subsequently defaulted. We agree with the appellant’s suggestion that legislative intent in enactment of the statute was to give relief to dealers who suffer a loss by reason of having to repossess and resell merchandise after a buyer defaults, but not with appellant’s further assertion that the statute should be read to require the dealer prove a monetary loss or financial detriment resulting from a transaction beyond, or in addition to, the collection of “excess” sales taxes.

The statutory requirements are met in the instant case, and the trial court correctly ruled appellee entitled to the credit or refund. Accordingly, the judgment below is affirmed.

NIMMONS, J., concurs.

WENTWORTH, J., dissents with written opinion.

WENTWORTH, Judge,

dissenting.

I respectfully dissent because the statute provides explicitly in these circumstances that a dealer may not keep for his own benefit, as a credit, the sales taxes paid to him by purchasers unless there is an “unpaid balance due him when he repossesses.” (e.s.) Section 212.17(2), Florida Statutes, provided:

A dealer who has paid the tax imposed by this chapter on tangible personal property sold under a retained title, conditional sale, or similar contract, or under a contract wherein the dealer retains a security interest in the property pursuant to chapter 679, may take credit or obtain a refund for the tax paid by him on the unpaid balance due him when he repossesses (with or without judicial process) the property, in the same manner as he may obtain a credit or a refund under subsection (1) of this section upon the return of purchases. When such repossessed property is resold, the sale is subject in all respects to the tax imposed by this chapter, (e.s.)

This was precisely the distinction made by the Department when it granted the credit for those transactions where MHI could show a balance due to MHI after repossession because it bought back the paper from Commercial Credit. Whatever other benefits did or did not accrue to MHI from the alternative procedure involved in this case, by which it avoided the repurchase and resumption of creditor status when it effected an immediate resale, it clearly did not meet the statutory conditions for credit because MHI, the dealer, did not have the necessary creditor status under a “security interest ... pursuant to chapter 679” at the time of repossession. Nor can this statutory prescription be regarded as form without substance, because the statutory grant of credit is not based simply on successive sales of the same property item by a dealer. On each such sale the tax is due and payable by the purchaser upon the total sale price whether cash or credit, and to that extent “double taxation” is the rule. The right to credit may accrue only when all the conditions are met, i.e., when the repossession is by a dealer and that dealer has an unpaid balance due him under a retained security contract.

The legislative purpose is clear: to impose the tax on successive sales without rebate except when the dealer never in fact received the sales price or any comparable obligation or benefit, as from sale and assignment of the security interest to Commercial Credit in this case. It is equally clear that no estoppel arose from the Department’s willingness to equate repurchase with retention of the security interest. Nor does the Department’s articulation of this distinction by Rule 12A-1.12, adopted after the assessment here in question, affect in any way • the validity and clarity of the pre-existing statutory terms to the same effect, which were relied on by the Department in this case.

The trial judge based his order granting summary judgment to MHI in part on two cases, Estate of W.T. Grant Co. v. Lewis, 358 So.2d 76 (Fla. 1st DCA 1978), and Anderson v. State Department of Revenue, 380 So.2d 1083 (Fla. 3d DCA 1980), disapproved and remanded, 403 So.2d 397, on remand, 405 So.2d 242. He appears to have misread the former case and ignored the Supreme Court’s comments in disapproving the latter.

I would reverse and reinstate the 1977 assessment of tax delinquencies in amount of $229,258.90 for the period March 1,1973, through March 31, 1976, with appropriate interest, which was then computed at $50,-958.46, for tax proceeds collected by appel-lee but never remitted because of the credit claim, which I would conclude was properly denied at the time of audit and assessment.

      . On appeal, the Department of Revenue contends: (1) credit or refund statute must be strictly construed against taxpayer; (2) appellee did not sell the property under a retain title, conditional sale, or similar contract; (3) appel-lee did not sell the property under a contract wherein the dealer retains a security interest in the property; (4) the Legislature did not intend to grant credit to a dealer who does not carry the balance due as accounts receivable but has assigned the contract for value; (5) a denial of credit or refund will not result in double taxation; and (6) order below establishes error in the lower court’s ruling.

      . Rule 12A-1.12, Repossessed Merchandise and Bad Debts, adopted by the Department of Revenue after the date of assessments here, provides, in case of repossessions, that: "In those instances where the tangible personal property was financed by a third party, the dealer must show that he repurchased the contract before applying for a tax credit under this paragraph.”

      . To that end, the appellee retains paper title to the mobile home and a power of attorney signed by the purchaser so that appellee can effectuate transfer of title to a subsequent purchaser in the event of default.

      . Volume 1, Florida State and Local Taxes, p. 683:
      The Rules allow dealers to obtain a refund or take a credit on a subsequent sales tax return in situations in which dealers repossess property that was sold under a retain title, conditional sale, or similar contract. The refund or credit is computed by multiplying the total sales price paid times the ratio of the unpaid balance of the taxable sales price divided by the total sales price as reflected in the sales contract. The subsequent sale of the repossessed property is subject to tax.

      . Volume 1, Florida State and Local Taxes, p. 683 at n. 93:
      There is no sales tax refund requirement to the defaulting purchaser, because apparently the purchaser is not deemed to have paid the prorata portion of the sales tax on the unpaid balance of the sales price. The dealer must claim his refund or credit within 12 months following the month in which the property was repossessed. Rule 12A-1.12(2)(a).

      .Judge Nimmons replaced Judge McCord, now retired, on this panel. Although not present at oral argument, Judge Nimmons has listened to the tape recording of the arguments.


text:
    Edward SUVALL and Seena Suvall, Appellants, v. PROVIDENT NATIONAL BANK, a national banking association organized under the laws of the United States of America, Appellee.
    No. 83-2718.
    District Court of Appeal of Florida, Third District.
    Oct. 30, 1984.
    Rehearing Denied Dec. 17, 1984.
    Jacobson & Gottlieb and Scott R. Gill, Hollywood, for appellants.
    Britton, Cohen, Cassel, Kaufman & Schantz and Diane D. Ferraro and Diane M. Van Ness, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Chris Craft Industries, Inc. v. Van Valkenberg, 267 So.2d 642 (Fla. 1972); McIntosh v. Harbour Club Villas Condominium Association, 421 So.2d 10 (Fla. 3d DCA 1982). See Mount Sinai Hospital of Greater Miami, Inc. v. Jordan, 290 So.2d 484 (Fla.1974).


author: BASKIN, Judge.

text:
    The STATE of Florida, Appellant, v. Francisco RIZO, Appellee.
    No. 83-1454.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 1984.
    Rehearing Denied Feb. 12, 1985.
    Jim Smith, Atty. Gen., and Jack B. Ludin, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender, and Thomas G. Murray, Asst. Public Defender, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

The state appeals the trial court’s order suppressing a photograph of Francisco Rizo taken at the police station and utilized in a subsequent photo line-up in which he was named by the victim as one of the persons who committed a robbery. Agreeing with the trial court that the photograph was the inadmissible product of an unlawful stop and an illegal detention, we affirm.

The relevant facts are set forth in the trial court’s order:

Ms. Caranza (the “Victim”) was robbed by two latin males who left the scene of the robbery in a two-tone late model automobile. She and her sister (who did not witness the robbery, but observed the car departing from the parking lot of the victim’s place of business) gave the police descriptions. The defendant fits the description of one of the robbers, but so do many people in Dade County.
Some time later, a person not previously known to the police appeared at the police station. He advised a detective that he had heard Mario Lara (later a co-defendant) admit that Lara had robbed the “old lady”, and that the other robber was the defendant. Based upon facts then known to the police officer, the robbery Lara was describing to the informant was the robbery of the victim. The informant (who has been alternately characterized as a confidential informant or a citizen informant) also advised the officer where the two-tone car was parked, a place which was allegedly the residence of Mario Lara. He also gave a general area as the location of the defendant’s residence.
Investigation of the location disclosed by the informant revealed what appeared to be the car. While the car was under surveillance by the police, it was driven away by Mario Lara and his brother. The police followed; the car ran a stop sign, and was stopped by the police at a location which was approximately where the informant advised the police the residence of the defendant was located. A crowd gathered (including other police officers), and one of the officers noticed that a member of the crowd fit the description of the defendant given by the informant and the victim.
Exactly what occured [sic] next is blurry, because all conversation between the police and the defendant at the scene of the stop were conducted in the Spanish [sic] language, and the officer who had the conversation did not testify at the suppression hearing. We do know that the defendant accompanied two police officers to the police station where his photograph was taken. Whether this trip was consensual, or whether the defendant was in custody, is not certain. The officer who requested the spanish-speak-ing [sic] officer to speak to the defendant told the spanish-speaking [sic] officer not to tell the defendant that he was a suspect. It also seems clear that the defendant was never free to leave the station-house.
In any event, after spending some time at the station-house, a photograph of the defendant was taken, and made part of a photo-lineup. The line-up was shown to the victim, and she selected the defendant as one of the persons who robbed her. The photograph is the subject matter of the motion to suppress.

The trial court concluded:

Based upon all evidence submitted, it is not possible to determine whether the defendant went to the station-house voluntarily or in custody. It is most likely that he was in custody, or was enticed to go under a ruse. The officer who spoke to him did not testify, but we do know that officer was instructed not to advise the defendant that he was a suspect in a robbery. We also know that the defendant was never free to leave the station-house.
Whether the photograph of the defendant was taken as the result of an arrest, or some lesser form of detention such as an investigatory stop at the scene or a permissable [sic] station-house investigation; whether the time that the defendant spent at the police station was too long or not; whether the test is probable cause or founded suspicion or some other; all trails lead to the credibility or reliability of the informant. At the time the defendant appeared at the traffic stop, there was not the slightest reason for the police to have any contact with him other than the suspicion of an officer that the defendant met the description provided by the informant.
The informant was unknown to the police officer to whom he spoke. While it might be successfully argued that the information that he gave regarding Lara was reliable, the information concerning the defendant, which was not observed by the informant, but came supposedly from Lara, whose reliability at that time was totally unknown, does not meet the test of reliability. All the police had to go on is what some unknown person told them one thief said about a second thief. Under the circumstances of this case, I do not believe the police had a reason to take the photograph of the second thief, unless he voluntarily went to the station-house. There is no evidence that he did so, United States v. Crews, 445 U.S. 461, 100 S.Ct. 1244.

A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness; the reviewing court must interpret the evidence and the reasonable inferences derived from it in a light most favorable to the trial court. Smith v. State, 378 So.2d 281 (Fla.1979); Finney v. State, 420 So.2d 639 (Fla. 3d DCA 1982); Barrios v. State, 397 So.2d 440 (Fla. 3d DCA 1981).

We find that the record provides substantial support for the trial court’s conclusion that the tenuous information received by the police from an informant of dubious credibility failed to satisfy fourth amendment standards. We agree with the trial court’s conclusion that based on the totality of the circumstances, the information furnished the police did not give rise to reasonable suspicion sufficient to justify their stopping Rizo. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Gorney v. State, 409 So.2d 220 (Fla. 4th DCA 1982); Robinson v. State, 388 So.2d 286 (Fla. 1st DCA 1980); Parker v. State, 363 So.2d 383 (Fla. 3d DCA 1978); Whitley v. State, 349 So.2d 840 (Fla. 2d DCA 1977). See State v. Webb, 398 So.2d 820 (Fla.1981). Cf. Finney (information given to police by victim directly following crime constituted reasonable, articulable suspicion justifying police officer’s initial automobile stop of defendant). Because the stop was unlawful, evidence obtained from further police activity is also inadmissible. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Lewis v. State, 382 So.2d 1249 (Fla. 5th DCA 1980); Whitley.

The custodial interrogation conducted at the police station without probable cause to arrest is also violative of fourth amendment guarantees. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). Even if the initial stop could be construed as valid, we believe the police exceeded the bounds of any authorized temporary detention when they transported Rizo to the police station to conduct a custodial interrogation without probable cause. Royer. Thus, the photo obtained during the unlawful detention is inadmissible on that ground, Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); see Terrell v. State, 429 So.2d 778 (Fla. 3d DCA 1983); J.R.H. v. State, 428 So.2d 786 (Fla. 2d DCA 1983); Pirri v. State, 428 So.2d 285 (Fla. 4th DCA), review denied, 438 So.2d 834 (Fla.1983), without consideration of the taint arising from the initial unlawful stop. Wong Sun; Lewis.

Holding that the state failed to meet its burden of establishing the constitutional validity of the warrantless search, Raffield v. State, 351 So.2d 945 (Fla.1977); Morales v. State, 407 So.2d 321 (Fla. 3d DCA 1981), we affirm.

Affirmed.

       The description of the car given by various persons was not the same; it was described as a tow-tone [sic] Pontiac or Olds, new car or several years old, and having a temporary or a permenent [sic] tag.

       This was not the officer to whom the informant spoke.

       The defendant claims that if the defendant was in fact arrested at the scene the actual arrest took place in his home without a warrant, and therefore the photograph should be suppressed as the fruit of an illegal Payton arrest, Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Aside from the confusion as to where the arrest took place, there is no evidence that the house in which the arrest took place (if in fact it took place in a house) was the home of the defendant.