Title: Opinion File 76-123 thru 76-142
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 Material Information
Title: Opinion File 76-123 thru 76-142
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Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opinion File 76-123 thru 76-142
General Note: Box 14, Folder 5 ( Opinions 1976 - 1977 - 1976 - 1977 ), Item 18
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003465
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text




KEY WORDS: 'A d'

gust 5, 1976 .i~- -



I: MGG
: LMB
: Meanings of the words "shall and "may"


Common usage "shall" means must and is used to express
command.

'May" is permissive and used to express the power or ability
to do something. May expresses ability, competency, liberty,
permission, possibility, probability or contingency. Black's
aw Dictionary. However, the courts not infrequently use
'may" as "shall" or "must" to the end that justice may not
e the slave of grammar.

'Shall," as used in statutes, is generally imperative or
mandatory. Black's Law Dictionary. "But it may be construed
s merely permissive, as equally ('may') to carry out the
legislative intent in cases where no right or benefit to any
ne depends on its beingtaken in the imperative sense, or
here no public or private right is impaired by its
interpretation in the other sense." Black's Law Dictionary.
Also, against the government it is to be construed as 'may,'
unless a contrary intention is manifested."

In 1928 the Supreme Court of Florida states:

the word 'shall' as used in this section
of the act merely confers authority and is not
mandatory." Fagan v. Robbins, 117 So. 863, 865.

he Court went on to cite several decisions from other
jurisdictions and quoted a Pennsylvania case verbatim
s follows:

"The word 'shall' when used by the legisla-
ture to prescribe the action of a court is
usually a grant of authority, and means 'may,' and
even if it be intended to be mandatory it must be
subject to the necessary limitation that a
proper case has been made out for the exercise of
the power."

he Florida case and the quote also appear in Simmons v.
tate, 36 So. 2d 207. In Simmons v. State the Supreme
court concluded that the trial judge was privileged to
gnore a criminal statute which used the word "must" rather
han the word "may."


1~~*






76-124




he Simmons and Fagan cases are also cited and quoted in
tate ex rel. Harrington v. Genung, 300 So. 2d 271.

n Harrington the Second District Court states:

"We hold that the word 'shall' as set
forth by the legislature in Florida
Statute 924.071(2) must be interpreted
as merely directory and not mandatory."
Id. at 272.



MB/gw




/22/8Q addendtq: (RMB)

he Second District has applied the ionss doctrine at least
twice since the Harrington case was decided. Tn S.i. y. State,
36 So. 2d 662 (Fla. 2d DCA 19761, the court found that a statute
tating that a petition alleging del nquency 'shall be dismissed
ith prejudice if it was not filed w thin 30 days" from a par-
icular date is discretionary. The ourt relied upon Fagan,
immons, Harrington, and a juvenile ule making such dismissal
icretionary.

n State v. Wilcox, 351 So. 2d 89 (lF a. 2d DCA 1977), the court
gain recognized that the word "shall may mean "may," but went
n to find the statute in question in that case to be mandatory
cause it dealt with probation. Probation, being a creature of
tatute, imposes limitations upon the courts to the authority
afforded by the statute.

Decisions can be cited in support of either position as to the
meaning of 'shall' in a statute, but the conflict is more apparent
han real, for the interpretation of the word 'shall' depends upon
he context in which it is found and upon the intention of the
legislature as expressed in the statute." White v. Means,
80 So. 2d 20 (Fla. 1st DCA 1973).

s to an administrative agency, the Florida Supreme Court said
n 1908 that the same general rules of construction which apply
o statutes govern the construction of administrative rules and
regulations. State v, Atlantic C. L. R. Co., 56 Fla. 617, 47 So.
69.(1908).

- The U. S. Supreme Court found in 1977 that, in construing
administrative regulations, the ultimate criterion is the
administrative interpretation, which becomes of controlling
weight unless it is plainly erroneous or inconsistent with
the regulation. United States v. Larionoff, 53 L. Ed. 2d
48, 97 S. Ct. 2150 (1977).













or' in
he -,rin-
ure can-
retion to
granted
procedure.


F'l. 271


ving
reby
- to
'ra.


STATE EX REL. HAR NGTON v. GENUNG
Clio ns. ila.App. 300o So.2d 271


:I
Ii


Therefore, I would think the rationale un-
derlying the Supreme Court's decisions in
Palladino v. Turner, supra, and in Greene
v. State, supra, which consider the specific
statute now before us, would require a de-
nial of the motion.



a E KEY NUMBER SYSTEM





STATE of Florida ex rel. Kenneth
HARRINGTON, Petitioner,
V.
Donald S. GENUNG, Sheriff of Pinellas
County, Respondent.
No. 74-647.

District Court of Appeal of Florida,
Second District.
Aug. 2, 1974.



Habeas corpus case of original juris-
diction. The District Court of Appeal,
Hlobson, Acting C. J., held that under stat-
ute providing that a defendant in custody
whose case is stayed either automatically
or by order of court shall be released on
his own recognizance pending appeal if he
is charged with bailable offense, word
"shall" was interpreted as merely directory
and not mandatory, and thus trial court
had discretion as to defendant's entitlement
to be released on his own recognizance
'pending interlocutory appeal by State from
grant of defendant's motion to suppress
and court properly set bond on charge of
robbery.

Petition denied.

McNulty, J., concurred specially and
fiked an opinion.


I. Constitutional Law =52
Power to admit to bail is a judicial
power, and must be free from encroach-


ment by legislative branch of government.
West's F.S.A. 924.071(2).

2. Ball =44(2)
Under statute providing that a defend-
ant in custody whose case is stayed either
automatically or by order of court shall be
released on his own recognizance pending
appeal if he is charged with bailable of-
fense, word "shall" was interpreted as
merely directory and not mandatory, and
thus trial court had discretion as to de-
fendant's entitlement to be released on his
own recognizance pending interlocutor
appeal by State from grant of defendant's
motion to suppress and court properly set
bond on charge of robbery. West's F.S.A.
924.071(2).
See publication Words and Phrases
for other judicial constructions and
definitions.



Robert E. Jagger, Public I)efender, and
Paul C. Scherer, Asst. Public Defender,
Clearwater, for appellant.

Robert L. Shcvin, Atty. Gen., Tallahas-
see, and Mary Jo M. Gallay, Asst. Atty.
Gen., Tampa, for appellee.


HOBSON, Acting Chief Judge.

Petitioner was charged by information
with the crimes of robbery, assault with in-
tent to commit robbery and possession of
heroin. The petitioner filed a motion to
suppress his confession and the evidence.
After hearing, the trial court granted peti-
tioner's motion to suppress.

The State thereafter filed a timely no-
tice of interlocutor appeal. Petitioner
then made application for lJease on his
own recognizance pursuant to Florida
Statute 924.071 () The trial court on this
application entered an order releasing the
petitioner on his own recognizance as to
the charges of Assault with intent to com-
mit robbery and possession of heroin.


, concur.


Sion.




er Bern-
control-
ned with
ions and
an those
the sec-
ich were
lar or
senually
Supreme
stitution,
further
of those
tough in
loes not
om mat-
stantive.
th Bern-


strictly
If which
his is a
)cedural.

172) 2(t
I1a.1970)
.te Ilyde

'stitution.


I' I











I:

Af


I i





'i I
b











272 Fla.


However, as to the robbery charge the
court set bond in the amount of $20,000.

Petitioner files this petition for writ of
habeas corpus alleging that under Florida
Statute 924.071(2):


"'The word "shall" when used by the
Legislature to prescribe the action of a
court is usually a grant of authority, and
means "may," and even if it be intended
to be mandatory it must be subject to the
necessary limitation that a proper case


"An appeal by the state from a pre- has been made out for the exercise of r
trial order shall stay the case against the power.'" [See also Fagan v. Rob-
each defendant upon whose application bins, 1928, 96 Fla. 91, 100, 117 So. 863,
the order was made until the appeal is 866.]
.determined. If the trial court deter-
mines that the evidence, confession, or The separation of powers of the three 4
admission that is the subject of the order branches of government-legislative, exec-
would materially assist the state in prov- utive and judicial-is a constitutional rule
ing its case against another defendant upon which our system of government has
and that the prosecuting attorney intends survived from its inception. It is essential
to use it for that purpose, the court shall that to safeguard this system the preserva-
stay the case of that defendant until the tion of the inherent powers of the three
appeal is determined. A defendant in branches must be free from encroachtiient
custody whose case is stayed either auto- or infringement by one upon the other.
matically or by order of the court shall
be released on his own recognizance [2] We hold that the word "shall" as
pending the appeal if he is charged wit set forth by the legislature in Florida Stat-
a bailable offense." [emphasis added ute 924.071(2) must be interpreted as

the trial court had no discretion as to his merely directory and not mandatory.
entitlement to be released on his own re- or te foregoing reasons the petition is
cognizance pending the interlocutory ap- |
peal filed by the state. Denied.


The trial court, having set a $20,000
bond on the charge of robbery, has deter-
mined that robbery in this instance is a
bailable offense. Therefore, petitioner
falls within Florida Statute 924.071(2).

[1] Our Supreme Court in Ex parte
Hyde, 1939, 140 Fla. 494, 192 So. 159, held
that generally the power to admit a person
charged with a criminal offense to bail is a
judicial function. The power to admit to
bail being a judicial power, it must be free
from encroachment by the legislative
branch of government.1

In Simmons v. State, 1948, 160 Fla. 626,
36 So.2d 207 our Supreme Court quoted
with approval the Supreme Court of Penn-
sylvania in Becker v. Lebanon & M. St.R.
Co., 188 Pa. 484, 41 A. 612, wherein it was
stated:


GRIMES, J., concurs.


McNULTY, J., concurs specially with
opinion.

McNULTY, Judge (specially concur-
ring) :

I fully concur in the conclusion and
opinion of my brother Hobson. However,
lest this concurrence gives rise to confu-
sion about my dissent in Bamber v. State
(Fla.App.2d, 1974), 3X) So.2d 269. I wish
to point out the distinguishing features.

In Bamber the question was whether or
not the trial court had authority to admit
to bail a second or subsequent felony of-
fender, pending appeal of his last felony
conviction, in the face of an express statu-


I. See Bernhardt v. State, Fla.1974, 288 So. 2d 490.


300 SOUTHERN REPORTER, 2d SERIES


7,6V121


Rob
peal
fen(
The
abst
abst
indi
tler
sive










ELLIS v. STATE
Cite i., FIn.App., 300 So.2d 273


bVS,
,n a
ity, and
tended
Sto the
r case
cise of
. Rob-
o. 863,


three
exec-
al rule
nt has
sential
,.serva-
three
'hment
r.


all" as
L Stat-
ed as


tion is







with



oncur-


,i and
evere,
:onfu-
State
wish
es.

t'er or
admit
:y of-
felony
statu-


Eugene ELLIS, Appellant,
v.
STATE of Florida, Appellee.
No. 73-930.

District Court of Appeal of Florida,
Second District.
July 12, 1974.



The Circuit Court, Pascal County,
Robert Williams, J., set bail, pending ap-
peal, in sum of $20,000, and indigent de-
fendant sought relief from such order.
The District Court of Appeal held that in
absence of findings sufficient to support
absolute denial of bail pending appeal by
indigent who faced maximum imprison-
ment of five years, $20,000 bail was exces-
sive.

Motion granted, and cause remanded
with directions.

I. See, Mendenhill v. Sweat (1934), 117 Fla.
659, 158 So. 280; Matera v. Buchnnan (Fla.
App.3d, 1966) 192 So.2d 18; State ex rel.
Crabb v. (Carson (Fla.App.lst, 1906) 189
300 So.2d-18


tory prohibition. Here, we are concerned
with bail pending an interlocutory appeal,
the posture of the case remaining at the
pre-conviction stage. Accordingly, if the
pending offense is a bailable one as here
entitlement to bail is a matter of constitu-
tional right, and no question of power or
authority to set bail is involved. The stat-
ute before us, then, seeks not to empower
or authorize the setting of bail but rather
seeks to tell the courts how to exercise
such power already theirs. I agree-this is
an unwarranted legislative encroachment
on a judicial function.




SE XEY NUMBiE SYSTEM


I. Ball =-52
Excessive bail can be equ
denial thereof.

2. Ball e-52
In absence of findings s
support absolute denial of bail
peal from conviction by indiger
maximum imprisonment of
$20,000 bail was excessive. 3
S.A. Florida Appellate Rules, r



James A. Gardner, Public DI
Robert T. Benton, II, Asst. Pu
er, Bradenton, for appellant.

Robert L. Shevin, Atty. Get
see, and Richard G. Pippinger,
Gen., Tampa, for appellee.

ON MOTION RE BAIL P
APPEAL


PER CURIAM.


Appellant, an indigent, is appealing his
conviction of shooting into an occupied ve-
hicle and consequent imprisonment for five
years. The trial court set bail, pending ap-
peal, in the sum of $20,000. Appellant now
seeks relief here from this order setting
bail.

[1,2] It is well settled that excessive
bail can be the equivalent of a denial
thereof.1 We consider a $20,000 bail as
excessive to this extent in the case of an
indigent facing maximum imprisonment of
five years in the absence of findings suffi-
cient to support an absolute denial of bail
pending appeal. Accordingly, the same
rules relating to a review of a denial of
bail pending appeal applies. In this re-
gard, Rule 6.15, F.A.R., 32 F.S.A., man-
dates compliance with Younghans v.
State.2

So.2d 376; State ex rel. G(erstein v. Schulz
(Fla.App.3d, 1965) 180 So.2d 367.

2. (Fla.1956) 90 So.2d 308.


!1
7


t
m


!I


.j
: '











'IN

i !1
; i .

* :'


Fla. 273 ^ --2'



ivalent of a




efficient to
pending ap- i
t who faced
five years,
2 West's F.
ule 6.15.



defender, and
blic Defend- i


i., Tallahas-
Asst. Atty.



ENDING i i
i i -










SIMMONS v. STATE
Cite as 3 8o.2d 207


fore by the filing of his bill arid, if it
is intended as a notice of a hearing the
twice was insufficient because it did not
ve the time or place of a hearing or the
rpose thereof.
The petition for certiorari is granted and
! decree of the chancellor of March 26,
47, is quashed.
THOMAS, C. J., and ADAMS and
)BSON, JJ., concur.



Eo EyT UEn S STM S




SIMMONS v. STATE.
Supreme Court of Florida, en Bane.
June 25, 19M8.
Criminal law e'737(1)
In criminal prosecution, function of
y is to determine the "issues of fact",
ich embraces disputes between state and
Fendant as to what actually existed or
:urred at the particular time and place in
'stion.
See Words and Phrases, Permanent
Edition, for all other definitions of
"Issues of Fact".
Criminal law =769
In a criminal prosecution, the sole
action of the court's charge is properly
inform the jury concerning the rules
law applicable to the facts in dispute.
Constitutional law S=52
Any legislation that hampers judicial.
ion or interferes with the discharge of
iicial .functions is unconstitutional.
Constitutional law :='55
Although the legislature may regulate
procedure of trial courts with respect
instructions to juries, it cannot abridge
-power of the judge to charge the law
I direct a verdict where the facts are
lisputed, nor can it require the court to
truct the jury without regard to the
dence offered.
Statutes =227
The word "shall" when used by leg-
,ture to prescribe the action of a court
usually a grant of authority, and means


Fla. 207


"may", and even if it be intended to be
mandatory it must be subject to the nec-
essary limitation that a proper case has
been made out for the exercise of the
power.
See Words and Phrases, Permanent
Edition, for all other definitions of
."May" and "Shall".
6. Statutes C181(2)
Statutes will be interpreted so as to
avoid objectionable consequences.
7. Criminal law =796
Statutory provision that judge "shall"
charge jury only upon the law of the case
and must include in charge the penalty
fixed by law for the offense for which the
accused is then on trial is directory merely,
and trial court in prosecution for having
carnal intercourse with an unmarried per-
son under 18 years of age could ignore
attempted requirement of including penalty
in charge. F.S.A. 794.05, 918.10.


Appeal from Circuit Court, Bay County;
Ira Hutchison, Judge.
E. R. Simmons was convicted of having
carnal intercourse with an unmarried per-
son under 18 years of age and he appeals.
Affirmed.
B. L. Solomon, and Robert L. McCrary,
Jr., both of Marianna, for appellant.
J. Tom Watson, Atty. Gen. and Reeves
Bowen, Asst. Atty. Gen., for appellee.

WHITE, Associate Justice.
This is an appeal from a conviction and
sentence for violation of Statute 794.05.
At the trial the lower court did not include
in its instructions to the jury the charge
with respect to the penalty fixed by law
for the offense for which the accused was
then on trial as required by Statute 918.10.
The failure to give the charge is the sole
ground for reversal urged by the appellant
on this appeal.
Statute 918.10, enacted by the Legislature
in the year 1945, provides:
"The presiding judge shall charge the
jury only upon the law of the case at the
conclusion of argument of counsel, and
must include in said charge the penalty


17 i-







.1


PORTERI, 2d SERIES


08 Fla. 30 SOUTHERN RE

xed by law for the offense for which the
accused is then on trial."
It was held by this Court in Eggart v.
tate, 1898, 40 Fla. 527, 25 So. 144, that,
except in cases involving capital punish-
ent, where a majority of the jury may by
recommendation to mercy in their ver-
ict commute the penalty of death to life
imprisonment, the trial jury has no con-
crn with the penalty imposed by statute
ith respect to criminal offenses; and that
instructions upon that subject are inap-
propriate. See also Osius v. State, 1928,
96 Fla. 318, 117 So. 859. The principle
established in those cases still controls as
respects the 'scope of instructions .to be
given in a criminal prosecution, unless
Section 918.10 has abrogated the effect
of the cited decisions and now makes man-
datory the giving of an instruction as to
the penalty fixed by law for the offense for
which the accused is then on trial.
[1,2] In the trial of a criminal case
in Florida the function of the jury is to
determine the issues of fact. The issues
of fact embrace the disputes between the
State and the defendant as to what actually
existed or occurred at the particular time
and place in question. When the State
has carried the burden which rests upon
it, the jury must apply the law in charge
to the facts thus shown to be true in order
to arrive at a verdict conformable to law.
Hence the sole function of the court's
charge is properly to inform the jury
concerning the rules olf law applicable to
the facts in dispute. If the court is re-
quired to depart from this course and dis-
cuss matters having no bearing on the true
function of the jury, the trial necessarily
is disconcerted and impeded.
[3,4] The preservation of the inherent
powers of the three branches of govern-
ment-legislative, executive, and judicial-
free from encroachment or infringement
by one upon the other, is essential to the
safekeeping -of the American system of
constitutional rule.
This statement is found (11 Am.Jur., p.
908):
"Any legislation that hampers judicial
action or interferes with the discharge of
judicial functions is unconstitutional."


This statement is also found (16 C.J.S.,
Constitutional Law, 128, page 330):
"Although the legislature may regulate
the procedure of trial courts with respect
to instructions to juries, it cannot abridge
the power of the judge to charge the law,
and direct a verdict where the facts are
undisputed; nor can it require the court
to instruct the jury wiltout regard to the
evidence offered." (Italics supplied.)
In State v. Hopper, 1880, 71 Mo. 425, a
statute directed the court, in trials upon
indictments charging murder in the first
degree to charge upon the law respecting
murder in the second degree. Commenting
upon the statute, the court said:
"It has always been held to be the duty
of the court, in trials for murder, if the
evidence would warrant it, to instruct the
jiry as to murder in the second degree,
and if the above section was meant to re-
quire such an instruction to be given, with-
out regard to the evidence, we do not hesi-
tate to say that it is such an invasion of the
province of the judiciary as cannot be toler-
ated without a surrender of its independence
under the constitution. The legislature can
pass any constitutional law it may deem
proper, and the courts are bound to observe
it, but it cannot prescribe for them what in-
structions they shall give in a cause, unless
they have previously embodied into a leg-
islative enactment as the law of the land
the substance of such instructions."
It will be observed that statute 918.10,
in directing the court to charge upon the
penalty, uses the word "must," rather than
"may." If th statute be interpreted as an
unqualified mandate that the court in every
criminal case include in the charge the
penalty which might be imposed, rather
than a mere grant of the privilege to so
charge, it becomes an unreasonable in-
fringement of the inherent power of the
court to perform the judicial function be-
cause it burdens the court with doing an
empty and meaningless act.

[5] In Fagan v. Robbins, 1928, 96 Fla.
91, 100, 117 So. 863, 866, this Court quoted
with approval the following enunciation
by the Supreme Court of Pennsylvania
[Becker v. Lebanon & M. St. R. Co., 188
Pa. 484, 41 A. 612]:


S6-129


"The
islature
is usual
'may,'
mandate
essary
been r
power."
[6]
tion th
which i
es. 50

[7]
question
ly dire(
that th
nore t
to reqt
penalty
fendan
Affir

THO
CHAT
HOB (









C T

Sup


I. StItu
tn
quirir g
press d
town t
mera ed
such a
ice s Id
coul n
tion f
sale f
with ga
of a t
mer ed
tain an
tive er
Con t.


word
to p
ya I
nd f
ry it
imita
ade

It is
.t an
Vill a,
Am.
The
mus
tory,
tria
e sta
re the
for
was
ied.

MA?
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36










CITY OF ORLANDO v. JOHNSON
Cite as 38 So.2d 209


IOMAS, C. J..
,PMAN, ADAMS,
SON, JJ., concur.


and TERRELL,
SEBRING, and


u
E
O IEIWUIIIIISI~T~W
C
T


CITY OF ORLANDO v. JOHNSON.

Supreme Court of Florida, en Bane.
June 25, 1948.
statutes e-121(2)
Under constitutional provision re-
ing subject of legislation to be ex-
sed in title, act authorizing cities and
s to impose tax on purchase of enu-
ated utility services, and requiring
tax to be imposed on.any other serv-
old in competition with a taxed service,
not be construed as authorizing taxa-
of purchases of fuel oil on ground that
of fuel oil was in direct competition
gas and electric service, where title
t did not include fuel oil among enu-
ted services subject to taxation or con-
any reference to taxation of competi-
services. F.S.A. 167.43-1; F.S.A.
t. art. 3, 16.
36 S0.2d-14


Fla. 209


"The word 'shall' when used by the Leg-
islature to prescribe the action of a court
is usually a grant of authority, and means
may,' and even if it be intended to be
mandatory it must be subject to the nec-
ssary limitation that a proper case has
een made out for the exercise of the
wer."
[6] It is a rule of statutory construe-
ion that an interpretation will be adopted
i ich will avoid objectionable consequenc-
s. 50 Am. Jur., p. 372 et seq.
[7] The provision of the statute in
question must be interpreted as being mere-
directory, and not mandatory. It follows
at the trial judge was privileged to ig-
re the statute in so far as it attempts
require the inclusion in the charge of the
nalty for the offense for which the de-
ndant was on trial.
Affirmed.


q
p
t

s
ic

ti
s
w t
of
m
ta
ti
C


7e-1


I
A
B


2. Statutes e109
While title of act need not be a com-
plete index of its subject matter, it must be
sufficient to put the public on notice or lead
to reasonable inquiry as to its provisions.
F.S.A.Const. art. 3, 16.

3. Licenses 35V/2
The city of Orlando had no power un-
der its charter to impose excise tax on pur-
chases of fuel oil within city to be paid by
the purchaser.


Appeal from Circuit Court, Orange
County; Frank A. Smith, Judge.
Suit by L. A. Johnson, trading and doing
business as Woods Fuel Oil Company, of
Orlando, Fla., against City of Orlando, a
municipal corporation, for a declaration of
rights under city ordinance imposing an ex-
cise tax on purchase of fuel oil within mu-
nicipality and to enjoin city from enforc-
ing collection of such tax. From a decree
declaring the ordinance void .insofar as it
purported to levy a tax on purchases of
fuel oil and enjoining collection of such
tax, defendant city appeals.
Decree affirmed.
SCampbell Thornal, of Orlando, for ap-
pellant.
Akerman, Dial & Akerman, of Orlando,
for appellee.

SEBRING, Justice.
An ordinance of the City of Orlando im-
poses an excise tax on every purchase of
fuel oil within the corporate limits of the
municipality, the tax to be paid by the pur-
chaser at the time of his purchase. The ap-
pellee, a dealer in fuel oil, brought a bill
of complaint for a declaration of his rights
under the ordinance, and to enjoin the City
from enforcing the collection of any tax
on fuel oil. The City filed its motion to
dismiss the bill. It also entered into a
stipulation of facts with the appellee in
which the parties agreed that the City of
Orlando would not file an answer but that
in lieu 6f answer the stipulation should
be made, upon which the court should en-
ter its decree; that the business conducted
by the plaintiff is a competitive service op-
erating in competition with the service











FAGAN v. ROInBINS
(11 So.)


[nation, was true by two unimpeached witness-
es, and in addition thereto offers satisfactory
proof of alibi, and none of this testimony is
impeached or rebutted, a different situation is
presented. Collier v. State, 55 Fla. 7, 45 So.
[752; Grooms v. State, 83 Fla. 547, 92 So. 153;
Bellamy v. State, 35 Fla. 242, 17 So. 500; 36
C. J. 873, 876. Even the unexplained posses-
Bsion of property recently stolen does not raise
.a presumption of the plaintiff in error's guilt
as a matter of law. The presumption of guilt
in such a case is one that the jury may infer
pas a matter of fact when considered in con-
nnection with all the other circumstances of
the particular case.
i' The state proved that there were tracks of
two men and one woman, found the next
morning after the store was broken into lead-
king from where an automobile with tires of a
certain tread had stopped near the store to
|the window that was broken, and back to the
automobile, but no proof was offered that the
defendant's tracks corresponded in any way
|with those found, or that he had ever had or
,driven an automobile equipped with tires of
the sort indicated by the tire marks on the
ground near the store, or that he had ever
been seen in the vicinity where the crime was
committed.
All the facts proven by the state might be
true and yet the defendant entirely innocent.
The only circumstance upon which, if not
'satisfactorily explained, a verdict of guilt'
.could have been legally founded, was the pos-
session of goods recently stolen, and as this
circumstance was credibly explained by the
.defendant and two other witnesses and not
rebutted and strong alibi evidence offered by
defendant, we conclude that there was not
:sufficient evidence to sustain the conviction.
, Reversed.

i ELLIS, C. J., and STRUM, J., concur.
WHITFIELD, P. J., and TERRELL, J.,
concur in the opinion and judgment.
BUFORD, J., dissents.





FAGAN et al. v. ROBBINS.
5Supreme Court of Florida, Division B. June 26,
| 1928.

(Syllabus by the Court.)
l. Mortgages 3=8559(2)-Provision of law au-
k thorizing deficiency decrees in foreclosure
suits held not mandatory (Acts 1919, o. 7839,
2; Equity Rule 89).
There are two good and sufficient reasons
dwhy we think that the word "shall," as used in
*section 2 of chapter 7839, Acts of 1919, mere-
*ly confers authority to enter deficiency decrees
'and is not mandatory. One reason for this con-


(Fla.) 863


clusion is that the apparent and logical purpose
of the act was to provide a statute authorizing
the court to enter deficiency decrees against all
persons liable for a mortgage debt or liable for
a lien debt, whether such liability should be pri-
mary or secondary and whether such liability
was created by endorsement of the note or as
joint maker of the note or grantor or other-
wise. The other reason is that prior to the en-
actment of this statute deficiency decrees were
entered in foreclosure suits under authority of
Equity Rule No. 89, and this rule did not apply
to other liens.
2. Mortgages 55559 (4)-Deficiency decree was
not authorized against endorser of note under
Equity rule (Equity Rule 89).
Equity Rule No. 89 did not authorize the en-
try of a deficiency decree against an indorser of
a note.
3. Mortgages =>559(3)-CoUrt may enter de-
ficiency decrees In foreclosure suits against
obligors other than makers of mortgages
(Acts 1919, c. 7839, 2).
Held, it was the purpose of the Legislature to
extend the provisions of Rule No. 89, supra, to
cover other liens beside mortgage liens, and
that it was the purpose of the Legislature, in
view of the language used in Realty Mortgage
Co. v. Moore, 80 Fla. 2, 85 So. 155, and in
Snell v. Richardson, 67 Fla. 386, 05 So. 592,
to authorize the court to enter deficiency de-
crees against obligors other than the makers of
the mortgage.
4. Mortgages =>559(3)-Deficiency decree in
foreclosure suit is matter to be determined
only by exercise of judicial discretion.
This court has for all time settled the ques-
tion that the granting or denying of a deficiency
decree is a matter to be determined only by the
exercise of judicial discretion and that such de-
cree may be granted or denied according to the
facts and circumstances in each case.
5. Mortgages <=559(2)-Law authorizing de-
ficiency decrees when construed as directory
and permissive statute held valid (Acts 1919,
o. 7839, 2).
To hold the act as being mandatory would
require us to determine that the Legislature has
attempted to coerce the judicial action of the
courts and that in so doing it has invaded the
province of the courts and passed an invalid act.
When construed as a directory and permissive
statute, it may be held to be valid and to serve
a good purpose, and we so hold.

6. Statutes 4<227-Word "shall," when used
by Legislature to prescribe action of court, is
usually grant of authority and means "may."
The word "shall," when used by the Legis-
lature to prescribe the action of a court, is
usually a grant of authority, and means "may,"
and even if it be intended to be nmndatory it
must be subject to the necessary limitation that
a proper case has been made out for the exer-
cise of the power.
[Ed. Note.-For other definitions, see Words
and P'hrases, First and Second Series, Shall.]
Strum and Brown, JJ., dissenting.


76.


SII
II I




III



i~r i. sl







'I'














'I










~i1.


Q=For other cases see same topic and KEY-NUMBER in all Key-Numbered Dlgets and Indexes










864 (Fla.)


117 SOUTHERN REPORTER


Appeal from Circuit Court, Palm Beach
County; C. E. Chillingworth, Judge.
Suit by Myra F. Robbins, by E. Stanley
Robbins, her husband and next friend,
against William D. Fagan, Jr., and others.
Decrees for complainant, and defendants ap-
peal. Reversed and remanded.
Morey Dunn and E. Harris Drew, both of
West Palm Beach, for appellants.
R. M. Griffin, of West Palm Beach, for
appellee.

BUFORD, J. The facts in this case have
been stated as follows:
"The appellee, as complainant in the court
below and referred to herein as the complain-
ant, on March 13, 1926, filed her bill of com-
plaint in the circuit court of Palm Beach coun-
ty, Fla., on the chancery side of said court,
against the appellants, William D. Fagan, Jr.,
Aurelia Fagan, his wife, and Horace B. Chase,
II, and another, E. Wilson, herein referred to
as the defendants, to foreclose a mortgage
bearing date June 8, 1925, covering certain
property in Palm Beach, Palm Beach county,
and state of Florida, given by the said William
D. Fagan, Jr., and Aurelia Fagan, his wife, to
the said Horace B. Chase, II, for the purpose
of securing the payment of three certain prom-
issory notes in the sum of $8,000 each, dated
June 8, 1925, and payable on or before one,
two, and three years, respectively, after date,
with interest from date at the rate of 8 per
cent. per annum, said interest payable semi-
annually.
"It was alleged and shown by the said bill of
complaint, among other things, that the said
mortgage and notes had, on the 23d day of June,
1925, by an assignment in writing, been sold,
assigned, transferred, and set over by the said
Horace B. Chase, II, to the said Myra F. Rob-
bins, the said assignment in writing having
been placed of record in said county and state
on October 13, 1925, and that on December 8,
1925, the semiannual interest on the said three
promissory notes, amounting to the sum of
$960, became due and payable to said complain-
ant, and was not paid, and that by reason of
such default and the lapse of more than 30 days
since the said interest became due and payable,
the said complainant had exercised the option
given her in the said mortgage. to declare the
aggregate sum mentioned in the said promissory
notes and the said mortgage as immediately
due.
"In the course of the proceedings a general
demurrer was filed by William D. Fagan, Jr.,
and Aurelia Fagan, his wife; also, a general
demurrer was filed by Horace B. Chase, II, and
E. Wilson. The demurrers were overruled by
the court below at a hearing thereon on July 28,
1926.
"On August 16, 1926, a joint answer to the
bill of complaint was filed by the defendants.
The answer consisted of paragraphs 1, 2, and 3.
In paragraph 1, the defendants, in substance,
alleged that the note was not made payable at
any place more definite than West Palm Beach,
Fla., and that all of the money allowed by the
bill of complaint to be due was, on the day
same became due and payable, at the home and
at the office of Horace B. Chase, II, and at the


76-132


home and at the office of William D. Fagan,
Jr.; that said money was kept at said safe
places all during the day same became due andf
payable and for many days thereafter: that the
said note was not presented for payment at say ''
of said places or to either of said defendants on:
the day same became due and payable or at any
time thereafter; that the defendants have been
ready, able, and willing at all times since aid
amount became due to pay same, are now ready,
able, and willing' to make payments due and '
tender the amount into court with their answer
to the bill of complaint. The record disclosed .
no profert in curia.
"Paragraph 2 stated that all of the allegations ,
in the bill of complaint, not herein admitted, amre
specifically denied by these defendants.
"Paragraph 3 prayed that the complainant be
required to accept the amount tendered in court;
that the complainant not be allowed solicitor's
fees and costs; and that said cause be di .
missed.
"On November 17, 1926, the solicitors repro '
seating the defendants stipulated with the so-
licitor representing the complainant to waive
the statute and rules of court relating to the
filing of exceptions to answers-in chancery and
allowed the complainant 15 days within which to
file exceptions to the answer of the defendants
and motion to strike, and in said stipulation '
agreed that the time for the taking of testimony
be enlarged for a period not exceeding 60 days
after disposition of exceptions to answer and
motion to strike answer.
"On November 27, 1926, the complainant filed
exceptions to the answer of the defendant by
which said exceptions the complainant sought to
have expunged from the answer all of para-
graphs 1 and 3 as scandalous and impertinent.
At the time the said exceptions were filed, the ,l.i
complainant also filed a motion to strike portions
of the said answer. The first part of said motion
was addressed to paragraphs 1 and 3 of the an- i
swer on the grounds that said paragraphs are
scandalous and impertinent, are not responsive
to the bill, do not allege facts constituting a de- .
fense, that said paragraphs purport to set forth i
that there was no presentment or demand for
payment, whereas the notes show on their fact
that demand and notice of nonpayment was ex- .
pressly waived, etc., are not drawn conform-
able to sections 3118 to 3122 of Revised General
Statutes, and fail to allege any matters which
would be the basis of a set-off or counterclaim.
The second part of said motion was addressed to
paragraph 2 of the answer on the ground that I
it is merely a general denial of certain allega- ;-
tions of the bill not otherwise admitted by the
answer and is not framed according to section
3118 of General Revised Statutes. ..
"On February 2, 1927, after timely notice, the
court allowed the exceptions to the answer and
granted the motion to strike portions of the
answer, and made and entered a decree pro con-. .'
fesso against the defendants in said cause. The
record discloses no timely motion or other .,,
fort to open the decree pro confesso." "

A master was appointed, testimony was
taken and submitted to the court, final decree *
was entered, sale of the property was bad,
and after the sale it was found that the pro-
ceeds of the sale were not sufficient to pay
the amount of the decree. Application was


made for a
grant d aga
Fro th(
taken.
Wb find i
by th reco
the re cord I
strue< the 1
Acts f 1911
sions of thi
them o ent
in th exen
tion ave C
has written
guag
"Anl while
entry f a di
remain ling i
equity le, y
Legis tture
court believe

[1- I It if
that here I
ion b tween
in th s stal
visio s of :
were mand
are t vo go4
think that
secti n of
and' not
conel sion
purp se of
auth rizina
deer(es ag
gage debt 4
such liabil
dary and v
by i orsei
of tl e not
to t e ena
decr es w,
under. auti
this ule c
Johnon v.
13 L R. A.
14 Ann. CO
thor ze th
again st ai
Ri rdsoi
cone ude t
in t e cas
it w is the
tend the p
other lien!
it w is the
of t e lani
v. oore,
v. Icharc
to enter (
other than
II Real
this court
"] equity
cou i e
in e luity 1
11l'







J.
C:.,


at 46W

p IUcot at a

,Me or at
.11 have
aU se It
it am
qats 6"




- di-r


FAGAN v.
(117
made for a deficiency decree, which was
granted against all the defendants.
Prom the several decrees, appeal was
taken.
WeI find no reversible error as disCel~ed
by the record, except that It appears from
the record itself lint the chancellor nisnrin-
strued the force and effect of chapter 7839.
Acts of 1019. and was coerced by tie rproii-
slons of that act as he saw and construed
them to enter a decree which he would not
in the exercise of his sound judicial discre-
tion have entered. The learned chancellor
has written in the decree the following lan-
guage:
"And while the court iq of the opinion that the
entry of a deficiency decree for the full amount
remaining unpaid i3 unconscionnile and in-
equitable, yet hy virtue of the 1919 act of the
Legislature pertaining to deficiency decrees, the
court believes thai. one should be entered."

[1-3] It is a matter of common knowledge
that there has long been a diversity of opin-
ion between lawyers and also between judges
in this state as to whether or not the pro-
visions of section 2 of chapter 7.'39, supra,
were mandatory or were directory. There
are two good and sufficient reasons why we
think that thpe a o. "shall" ar used in tis
J1 a of# pe a merely CoESr o r bority
s not One reason for this
con uson Is that the apparent and logical
purpose of the act was to provide a statute
authorizing the court to enter deficiency
decrees against all persons liable for a mort-
:gage debt or liable for a lien debt, whether
Such liability should be primary or secon-
dary and whether such liability was created
.by endorsement of the note or as joint maker
Sof the note or grantor or otherwise. Prior
Sto the enactment of this statute deficiency
decrees were entered in foreclosure suits
Sunder authority of equity rule No. 89, and
this rule did not apply to other liens. See
Johnson v. McKinnon, 54 Fla. 221, 45 So. 23,
13 L. R. A. (N. S.) 874, 127 Am. St. Rep. 135,
14 Ann. Cas. 180. Neither did that rule au-
thorize the entry of a deficiency decree
against an endorser of a note. Snell' v.
Richardson, 67 Fla. 386, 65 So. 592. So we
conclude that in view of the language used
in the case of Johnson v. McKinnon, supra,
it was the purpose of the Legislature to ex-
tend the provisions of rule 89, supra, to cover
other liens beside mortgage liens, and that
it was the purpose of the Legislature, in view
of the language used in Realty Mortgage Co.
v. Moore, 80 Fla. 2, 85 So. 115, and in Snell
V. Richardson, supra, to authorize the court
to enter deficiency decrees against obligors
other than the makers of the mortgage.
In Realty Mortgage Co. v. Moore, supra,
this court say:
"Equity rule 89 of the rules of the circuit
court in equity granting to such courts in suits
in equity for the foreclosure of mortgages, the
117 SO.-55


ROfIBINS (Fla.) S'1,5 -
Sol
power to render a decree against the mortgagor
for any balance that may be found to be due
the plaintiff, over and above the proceeds of the
sale or sales of the nortgagedl property, does
not deprive the coirt of irt quin'l jmlicini dis-
erri'ion to determine the right into suu defi>.iency
decree."

And. further, in the same opinlun, the
court say:
"A mortgagee may so deal with the mortga-
gor's grantee of the morigaged premises as to
deny to the mortgagee tlhe right to a deficiency
de-rre against the mortgagor. *
'"The power vested in circuit court', in equity,
by rule S9 of the circuit cnurt in equity, for
the foreclosure of mortgages declaring that a
decree may be rendered for any balance that
may be found due to the plaintiff over and nhove
the proIcecd of sale or qales. is a discretionary
one, and may be granted or denied according to
tie facts and circumstances in each case."

[4] So it will be observed that this court
has for all time settled the question that
the granting or denying of a deficiencyy de-
cree is a matter to be determined only by
the exercise of judicial discretion. and that
such decree may be granted or denied ac-
cordinz to the facts and circumstances in
each case.
It 'vill Ie observed that chapter 7.39. su-
pra. provides that:
"All persons having any interest in the said
mortgage or lien or the property mortgaged or
upon which the lien exists or having assumed
the obligation to pay the mortgage debt or lien
debt, whether such obligation shall be as indors-
er of the note or notes, guarantor of the debt,
or otherwise may be made parties to such suit
or proceeding to enforce such lien or foreclose
the same."

The act further authorizes deficiency de-
crees to be entered in such cases when the
proceeds of the sale of the property subject
to the mortgage or lien shall not be suffi-
cient to pay the debt and costs for any bal-
ance that may remain after the application
of the proceeds of the sale of such property
to said debts and costs, against the party or
parties liable for the mortgage debt or lien
debt, whether such liability is primary or
secondary and whether such liability is
created by endorsement of the note or as a
joint maker of the note, or guarantor, or
otherwise, of the obligation sought to be en-
forced, and these provisions are made to ap-
ply to the representative of any such obligor
who is liable either primarily or secondarily
when such person so liable is dead at the
time of bringing the suit.
[5] Now, if we construe the act to au-
thorize and permit this procedure by the
court in proper cases within the exercise of
proper judicial discretion, the act can be
held valid and effective, but if we construe
these provisions of the act to be mandatory
as to the several classes of obligors and per-


rn










II



~ 1








~I


:.11I




I IIi







117 SOUTHERN REPORTER


sons liable as named in the apti then we hian from exereising his judicial discretion to
must immediately recognize' the ,fact that grant or refuse it" i!;
such construction must in a great many enses The reasoning and conclusion of t
bring the provisions of the act in direct con- [6] he reasoning and conclusion of this
flict with section 3 of the Bill of Rights of the decision is supported by the Supreme Court
Constitution of the state of Florida, in that of Washington in Clancy v. McElroy, 80
such construction would require the courts Wash. 567, 70 P. 105; in Boyer v. Onion, 108
of chancery to enter deficiency decrees against Ill. App. 612; Becker v. Lebanon, 188 Pa.
persons liable as indorsers, guarantors or 484, 41 A. 012, in which latter case the court
otherwise, although under the issues pre- say:'
sented by the pleadings it is made clearly "The word 'shall' when used by the Legisia
to appear that such persons are entitled to ture to prescribe the action of a court is usually
have the issues tried by a jury. a grant of authority, and means 'may,' and even
Hav ing reached the conclusion as aove if it be intended to be mandatory it must be
having reached the conclusion a above subject to the necessary limitation that a proper.
stated, it follows that if the act here under case has been made out for the exercise of the
consideration is to be held valid It must be power."
construed as a directory or permissive au-
thority and not as mandatory. For the reasons stated, the decree confirm-
To hold the act as being mandatory would ing the sale and adjudicating a deficiency
require us to determine that the Legislature against the defendants will be reversed and
has attempted to coerc h judicial action the cause remanded for such decree as the
of the courts and -hat in so ldoinR it. h in- n chancellor in the exercise of his judicial dis.
Evaded the povnce of the nUrtnan nasgeiL creation may deem proper to enter in accord-
an invalidat. When construed as a di- ance with law and the rules of practice. ,.
rectory and permissive statute, it may be Reversed and remanded.
held to be valid and to serve a good purpose,
and we so hold. In construing the word WHITFIELD, P. J., and TERRELLAJ
"shall" in a legislative act in which it was concur
contended that the use of such word made it ELLIS, C. J., concurs in the opinion andi
mandatory upon judges to grant certain or- judgment. 'r
ders under certain conditions, the Supreme
Court of New York in People ex rel. Morse v. STRUM, (dissenting). In my opinion,
Nussbaum, 32 Misc. Rep. 1, 66 N. Y. S. 129, section 2 of chapter 7839, Acts of 1919, isnot
,say : -! oi chapter i,.*. i --, is1--1


"The claim is that under the present law the
justice has no discretion in the matter, and
must grant the order simply because it is asked
for by the attorney general. It is true that
the language of the act looks very much as if
the Legislature intended by it to provide for a
sort of legislative mandamus against the justice
to whom application for the order might be
made. But, notwithstanding the law says that
he shall grant the order, I think he is still
charged with the duty of exercising a judicial
discretion, in determining whether he should
grant it or not in the specific case. The lan-
guage means no more than if the act provided
that the justice 'may,' instead of 'shall,' grant
the order. The Legislature is as powerless to
coerce judicial action as the courts are to is-
sue a mandamus against the governor or the
Legislature, each being independent of either
of the others within their respective spheres of
duty. People v. Morton, 156 N. Y. 136, 50 N.
E. 791, 41 L. R. A. 231 [66 Am. St. Rep. 547].
Similar language is employed in the Code of
Civil Procedure with respect to the examination
of a party to an action before trial, where it is
provided in section 873 that the judge to whom
the affidavit mentioned in section 872 is present-
ed, 'must grant an order for the examination, if
an action is pending.' In a case arising under
this clause the court of appeals has held that it
did not deprive the judge of his judicial discre-
tion in the matter. Jenkins v. Putnam, 106 N.
Y. 272, 12 N. E. 613. I think, therefore, that
the mandatory character of the language em-
ployed in the law as to the duty of the justice
to grant the order in question does not prevent


Ii


Aa~


mertey urevorlJy, uu man atouLry, lJuan b
when so construed it is a valid enactment as '
against the objection that it is a legislative',
attempt to control judicial discretion, in so "
far as the mandatory entry of a deficiency
decree against the maker of a mortgage note
is concerned. Whether it is in conflict with
section 3, Declaration of Rights, or is ame-.
nable to any other constitutional objection, u,
when applied either to the maker or to those I
secondarily liable on the note, is not present- ,
ed and therefore not considered. .
In other respects I concur in the foregoing '
opinion by Mr. Justice BUFORD.
In Webber v. Blanc, 39 Fla. 224, 22 So. 655,
this court held that in the absence of a stat-
ute, or rule of court, made "in compliance
with law," no decree in chancery for a de-.
ficiency after a sale of the mortgaged proper- ,
ty could be entered in a court of equity, un-
less the debt, without the mortgage, is such 4
that a court of chancery would have'jurls .
diction of it and could render a. decree for It.
See, also, 42 0. J. 290. "
In 1873, equity rule 89 was adopted vestilnai
in the circuit courts discretionary authorities
to enter deficiency decrees in mortgage fote &
closures. The power to adopt that rule was d-.,
rived from existing statutory authority so .to |
do. Without such statutory authority the rule 4
would not have been authorized since under '
the original equity practice, unaffected by sta.t-i
ute, a mortgage foreclosure was a proceeding i


in rem, or qu si in
power to ren er a
the mortgage for a
in cases where a del
to a separate actio
135 N. Y. 27 31 I
See, also, Et r v. E
So. 724, 725. Prio:
was no specic stal
vesting in a court
enter deficie cy de
sures. Etter v. St
the power t adopi
questioned a Sue
38, 65 So. 5 2, thi
ty for the a option
statutory a thorit
the adoption 'of th
at least tac tly th
rule and to rocee'
a court of equity
authorization. Af
Acts of 187 and
court, in th case
"Under th power
a pted
may well be true tl
it now stains [as
1740 of the Gener
have the power t
whether so r not
it had such power
it then stoo whe
Pursuant to au
became th pract
fciency d rees
under tha rule
to such a ecree
fled, but ch a
when, in t e sou
chancellor, It wl
circumsta es of
If the pwer o:
crees is a inher
ty, there s no
again "co fer" t
Courts ne d no
cise inhe nt ji
Besides, t is coi
that the wer 1
rived front exist
v. Richar son, s
of the poeris
tribute o the c
thorizing he ac
Althou Re
Fla. 2, 85 So. 1
Sing to en er a (
in 1920, e bill
to the e actme
1919. Tie line
last nam d, in
to enter defici
S8, 1919. Chapt
Sand effe tive c
Statute .e tende


866 (Fla.)


1768-134















ion of thIis
reme Court
'cElroy, 30
. Onion, 10
on, 188 Pa.
ee the co

the LegislB
irt is us
:iy, and e v
: it must
i.hat aprove
*-ercise of

'ree confirm
a defllen
eversed an
'cree as. t
judicial ds
r in accord
Sractce. ,


,RREL 4J'

opinion aM


my opinilo;
f 1919, is no
y,Ad tha
nf ent a
a aslaUT
retion, in
a deficlen
mortgage not
conflict wl
, or is
!al object.l
Sr or to th
not presn

.he forego

:, 22 So.
-ice of a sta
i1 compllaM
ry for a
aged prop
,f equity, U
gage, is so
,I have Ju
decree for

opted vest
iry author
mortgage to
t rule was
ithority so
tority the
I since un
'ected by stl
a proceed


in rem, or quasi in rem, and the court had no
power to render a personal judgment against
the mortgagor for a deficiency, the mortgagor
in cases where a deficiency occurred being left
to a separate action at law. Frank v. Davis,
135 N. Y. 275, 31 N. E. 1100, 17 L. R. A. 300.
See, also, Etter v. State Bank, 70 Fla. 203, 79
So. 724, 725. Prior to the act of 1919 there
was no specific statute in this state expressly
vesting in a court of chancery the power to
enter deficiency decrees in mortgage foreclo-
sures. Etter v. State Bank, supra. But when
the power to adopt chancery rule No. 89 was
questioned in Snell v. Richardson, 07 Fla.
380, 65 So. 592, this court rested the authori-
ty for the adoption of the rule squarely upon
statutory authority existing at the time of
the adoption'of the rule, thus acknowledging
at least tacitly that the power to adopt the
rule and to proceed under it did not inhere in
a court of equity but rested upon statutory
authorization. After discussing chapter 1938,
Acts of 1873, and other existing statutes, this
court, in the case last named, said:
"Under the power thus conferred, this court
adopted equity rule 89. It
may well be true that even under the statute as
it now stands las of the year 1914], section
1740 of the General Statutes, "this court would
have the power to adopt equity rule 89, but
whether so or not there can be no question that
it had such power in 1873, under the statute as
it then stood, when such rule was adopted."
Pursuant to authority of equity rule 89, it
became the practice to thereafter render de-
ficiency decrees in proper cases, although
under that rule the right of the mortgagee
to such a decree was not absolute or unquali-
fled, but such a decree was rendered only
when, in the sound judicial discretion of the
chancellor, it was justified by the facts or
circumstances of the case.
If the. power or discretion to enter such de-
crees is an inherent power of a court of equi-
ty, there is no necessity for the court to
again "confer" the power upon itself by rule.
Courts need no statutory authority to exer-
cise inherent judicial discretion or power.
Besides, this court has already said in effect
that the power to adopt equity rule 89 is de-
rived from existing statutory authority. Snell
v. Richardson, supra. So the ultimate source
of the power is found, not in an inherent at-
tribute of the court,, but in the statutes au-
thorizing the adoption of the rule.
Although Realty Mortgage Co. v. Moore, 80
Fla. 2, 85 So. 155, affirming an order refus-
ing to enter a deficiency decree, was decided
in 1920, the bill of complaint was filed prior
to the enactment of chapter 7839, Acts of
1919. The final decretal order in the case
last named, in which the chancellor declined
to enter a deficiency decree, was rendered May
8, 1919. Chapter 7839, supra, became a law
and effective on June 7, 1919. While this
statute extended the classes of cases in which


(Fla.) 867 '-


deficiency decrees might be entered to the
foreclosure of other liens as well as mort.
gage liens and to obligors other than the pri-
mary debtor, in my opinion it was plainly
the legislative intent to go further, and not
only to authorize courts of equity to enter
such decrees in their discretion, but to re-
quire the entry of such decrees in cases
where it has been judicially determined, ac-
cording to the rule prescribed in the statute,
that a deficiency existed. Otherwise, why
did the Legislature use the word "shall" in
the statute, the ordinary use of which is well
known to import a mandatory command, in-
stead of the word "may" as used in equity
rule 89 since 1873, and which had long since
been construed as permissive, of which con-
struction the Legislature presumably had
knowledge when it passed chapter 7839, su-
pra ?
Rules, such as equity rule 89, adopted pur-
suant to statutory authority, have the same
force and effect as a statute, and similar
rules of construction apply. It is a rule of
statutory construction that where an amend-
ment is enacted, it must be assumed that a
change in the existing law to the extent in-
dicated by the nature of the amendment was
intended unless a contrary intent appears
from all of the enactments on the subject,
and courts should give appropriate effect to
the amendment. Atlantic Coast Line R. Co.
v. Amos (Fla.) 115 So. 315.
Although, as was held in Snell v. Richard-
son and Etter v. State Bank, supra, under
equity rule 89 the entry of a deficiency decree
rested in the sound judicial discretion of the
court, that discretion is exercised pursuant
to the statute which conferred it, and not
otherwise. Since the authority to efiter de-
ficiency decrees arises initially from a stat-
utory enactment, and is not the exercise of
a judicial discretion inherent in the court,
the same authority, namely, the Legislature,
which vested the power. In -the courts, can
further regulate the authority by changing it
from a permissive authority to a mandatory
authority, or by altogether abrogating the
authority.
For the reasons stated, it appears to me
that section 2 of chapter 7839, supra, is not
an attempt to control the exercise of inherent
judicial discretion, not only because no dis-
cretion in the respect under consideration
existed independently of statutory authority,
but because the statute in question merely
prescribes a rule of remedial law and is bind-
ing upon the courts as such. It is a rule of
remedial law of the same general character,
and sustainable upon the same principles, as
that requiring the entry of judgment against
the sureties upon a forthcoming bond in re-
plevin, attachment, garnishment, or in dis-
tress proceedings, when the plaintiff prevails,
thereby eliminating the necessity for pro-
ceeding against such sureties by a separate


* FAGAN v. ROiIBINS
(117 Sb.)


I P i


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ii









4 1


jjiji~




















j;~











868 (Fla.)


117 SOUTHERN REPORTER


action (sections 3493, 3565, Rev. Gen. Stats.
1920); or that providing that common-law
courts shall charge the jury at the conclusion
of the evidence and before the argument of
counsel (chapter 9364, Acts of 1923), all of
which statutes have been held valid as man-
datory enactments. In those instances first
mentioned the court exercises a judicial dis-
cretion, in co-ordination with the function of
the jury, in the determination of whether or
not plaintiff is entitled to judgment in the
first place, a discretion of the same quality
(but exercised of course under essentially dif-
ferent rules of procedure) as that exercised
by the chancellor in determining the equities
and liabilities between the parties in a mort-
gage foreclosure, and whether or not a de-
ficiency exists. But when the existence of a
deficiency is judicially determined according
to the rule prescribed by the statute, then the
statute requires that a decree for the deficien-
cy be entered in that action, just as in the
other instances pointed out the court is re-
quired to enter judgment against the sureties
in that action, thereby obviating the necessi-
ty, which would otherwise exist under gener-
al rules, of bringing another action against
the sureties. Having determined that the
plaintiff is entitled to judgment in those in-
stances, or in mortgage foreclosure that a de-
ficiency exists, according to the rule of lia-
bility prescribed by the statute, no further
discretion remains with the court as to
whether a judgment, shall be entered for it
in that action. The substance and effect of
the statute is that when it has been judicial-
ly determined according to the rule of liabili-
ty therein prescribed that a deficiency exists,
judgment shall be entered for it in the fore-
closure-purely a rule of procedure.
The fact that the statutes just above re-
ferred to relate to common-law courts does
not distinguish them in principle from the
statute under consideration. That judicial
discretion which inheres in common-law
courts can no more be regulated by legisla-
tive action than that inhering in courts of
equity.
In principle the statute under considera-
tion'is analogous to those which define the
scope and effect of answers in chancery and
abolish cross-bills, or those defiliing what
shall be put in issue by a plea of not guilty,
since all prescribe procedural rules of reme-
dial law-that is, the course of procedure by
which substantive rights are enforced or the
forms by which justice shall be administered.
The statute does not constitute an attempt to
regulate courts in those matters pertaining
to or necessary in the internal operation of
courts in the discharge of their duties and
the dispatch of matters before them. As to
the latter the courts themselves are para-
mount.
In State ex rel. Ross v. Call, 39 Fla. 504,
22 So. 748, decided in 1897, and at the same


term as Webber v. Blanc, supra, it was said
that although in a general sense every court of
record lhas inherent power to adopt rules of i
general practice, yet it is equally true that in
all niatters not purely of a judicial nature, or|
forbidden by constitutional limitation, the I
Legislature has power to prescribe general .
rules of procedure and pleading, binding up.
on parties and the courts. Further, that the R|
Legislature has power to divest the commonly
law rights of circuit courts to prescribe suchtl
rules of practice as are simply convenient Od
beneficial, but not necessary, to the courts ia1
the exercise of their rightful jurisdiction.'
And we think the Legislature has done so in'
this state. Speaking further in that case, the'
court said:
"It was contemplated by the Constitution,
that the Legislature would regulate the prnac-.
tice of courts of justice, and it was therefore
provided by section 20 of article 3, Constitution
of 1885, among other things, that 'the Legisla-:
ture shall not pass special or local laws in anyj'
of the following enumerated cases, that is to ji
say, regulating the practice of courts
of justice, except municipal courts;' and by see-;
tion 21 it was provided that in all such cases, .!4
'all laws shall be general and of uniform opera,,
tion throughout the state.'"

In Blanchard v. Raines, 20 Fla. 467, it'"
was also said:
"The forms of administering justice and the
powers of the courts are subjects of legislative
control."

That statement is, of course, to be qualified
by the requirements of constitutional limita-
tions and the legitimate inherent powers of
the courts. To the same effect see Keen v .
State, 89 Fla. 113, 103 So. 399. This rule ap.
plies to courts of equity. The Legislature :
may prescribe the procedure by which the
jurisdiction of courts of equity is to be exer-?".
cised unless the regulations adopted substan.
tially impair a constitutional or inherent '-
power of the court, or practically defeat its'
exercise. Cary v. Mine, etc., Sup. Co., 53 '
Colo. 556, 129 P. 230; 12 C. J. 826. See, also, .
Brown v. Kalamazoo Circuit Judge, 75 Mich.
274, 42 N. W. 827, 5 L. R. A. 226, 13 Am. St '
Rep. 438. As already stated, courts of equity
possess no inherent power in respect to defl-'
ciency decrees in mortgage foreclosures. ;
It is conceded that the Legislature mayi.,
mandatorily prescribe or regulate generally. 4
the procedure for the foreclosure of mort-'
gages. What is there to distinguish from the,'
general rule that part of the procedure relat-
ing to the entry of judgment in that action
for a deficiency judicially determined to ex- .
ist? The purpose of the statute is to relieve ^
litigants of the expense and vexation of two '
suits, one in equity and the other at law,
which would have been the necessary course i
under the original chancery practice inde-


76-13

pendent of stat te, an
complete relief n one
personal judgn ent f
been originally an e:
rule that, havi g obt
ty will retain t and
legal and equi able,
respect to the transa
involved. Fra k v. I
Metropolitan, c., R.
E. 315, 15 L. R A. 2
McGean v. Me opoli
Y. 9, 30 N. E. 7.
Of course, t e co
paramount aut ority
regulating the inte
courts, the ma ner in
ceed In the di patch
and, in short, all m
courts in the (xercis
diction. This lass
relating to ora argue
style of transe pts, b
is, all things ecessi
performance o its ji
guished from les
rights or reme lial l
(Fla.) 114 So. 7 3; Si
ty (Fla.) 110 S 451
To me there is ac
the situation h re inv
in People v. Ni ssbau
Y. S. 129, cite In t
which it was 1eld tli
ute there under consi
datorily, woull con
legislative ene ochn
tions, by coerc ng ju
ance and use o judic
cannot be don and
act the provi ion ji
strued as direct ory oi
the word "sh ll" wi
quent history of tha
baum, 55 App. Div.
In re Davies, :68 N.
R. A. 855. But here
of remedial lav-a
tedly the subj et of
this state. T e sta
to regulate or restr.
the court sha I exe
tion either up n the
evolved or as t the is
ess. The sta ute d
ter or impair he jui
mining wheth r a d(
er his substa tive r
to a judgment their
that when th proc,
insufficient to pay tl
ter to be judcially
straint,-then in the
mined that s ch a
court "shall" enter
proceeding, t ereby
for a resort y the
tional action t law







r


STATE v. JACKSONVILLE TERMINAL CO.
(117 So.


lea of,
tat, lio,
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so I
tthe "4.



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prU
imon~~~
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"ra d~

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* "at irs;
io 6S,*


(Fla.) 869


Since the reversal here rests upon the theo-
ry that chapter 7839 is permissive or directo-
ry only, and since I do not agree to that con-
struction of the statute, I dissent.

BROWN, J., concurs.


ndent of statute, and enable them to obtain,
mplete relief in one suit, the rendition of a
rsonal judgment for a deficiency having
en originally an exception to the general
le that, having obtained jurisdiction, equl-
will retain it and render full relief, both
;al and equitable, between the parties in
aspect to the transaction or subject-matter
evolved. Frank v. Davis, supra; Lynch v.
metropolitan, etc., R. Co., 129 N. Y. 274, 29 N.
315, 15 L. R. A. 287, 26 Am. St. Rep. 523;
cGean v. Metropolitan, etc., R. Co., 133 N.
9, 30 N. E. 647.
Of course, the courts themselves are the
amount authority in the making of rules
gulating the internal operation of the
arts, the manner in which courts shall pro-
ed in the dispatch of their own business,
d, in short, all matters necessary to the
arts in the exercise of their lawful juris-
etion. This class of rules embraces those
rating to oral arguments, the number and
le of transcripts, briefs, and the like-that
all things necessary to the court in the
formance of its judicial duties, as distin-
ished from rules relating to substantive
hts or remedial law. See Bryan v. State
a.) 114 So. 773; Spafford v. Brevard Coun-
(Fla.) 110 So. 451 (on rehearing).
o me there is a clear distinction between
situation here involved and that presented
People v. Nussbaum, 32 Misc. Rep. 1, 66 N.
S. 129, cited in the majority opinion, in
ich it was held that section 4 of the stat-
there under consideration, if applied man-
orily, would constitute an unwarranted
islative encroachment upon judicial func-
s, by coercing judicial action in the issu-
e and use of judicial process. Clearly that
mot be done, and in order to sustain that
the provision just mentioned was con-
led as directory or permissive only, though
word "shall" was used. See the subse-
nt history of that case. People v. Nuss-
m, 55 App. Div. 245, 67 N. Y. S. 492, and
re Davies, 168 N. Y. 89, 61 N. E. 118, 56 L.
. 855. But here the question is purely one
remedial law-a rule of procedure admit-
ly the subject of legislative regulation in
state. The statute does not undertake
reguhte or restrain the manner in which
court shall exercise its judicial discre-
Seither upon the substantive questions in-
-ed or as to the issuance or use of its proc-
The statute does not attempt to fet-
or impair the judicial discretion in deter-
ing whether a deficiency exists, or wheth-
is substantive rights entitle complainant
judgment therefore, but merely provides
t when the proceeds of the sale shall be
ificient to pay the debt and costs,-a mat-
to be judicially determined without re-
int,-then in the event it shall be so deter-
ed that such a deficiency does exist, the
t "shall" enter judgment for it in that
feeding, thereby obviating the necessity
a resort by the complainant to an addi-
al action at law to recover it.


STATE ex rel. WELLS et al., State Railroad
Comm'rs, v. JACKSONVILLE TERMI-
NAL CO.
Supreme Court of Florida. July 19, 1928.
(Syllabus by the Court.)
1. Carriers e==388-Railroad commission may
regulate handling of baggage of prospective
railroad passengers by terminal company.
The powers of the railroad commission are
broad enough under the statute to include the
authority to make reasonable regulations re-
specting the handling of baggage belonging to
prospective railroad passengers by a terminal
company and providing a reasonable system for
its safe-keeping and convenient identification
by its owner after it has been received by the
terminal company.
2. Commerce I=-13--Regulation of carriers as
to Intrastate business Is within power of state,
which may be lawfully exerted through admin-
Istrative officers and commissions.
While the right to the management and con-
trol of the property of common carriers is in-
herent in the carriers who own or operate the
property, yet,because of the nature of the serv-
ice and the immediate interest of the public
therein, supervision and regulation of the oper-
ation and of the business done as common car-
riers are within the powers of 'the state as to
intrastate business when lawful federal author-
ity is not dominant, and this governmental su-
pervision and regulation may be lawfully exert-
ed through administrative officers and commis-
sions or boards when they are validly constitut-
ed, and their governing powers and duties in
the premises are legally defined and limited by
duly enacted statutes.
3. Carriers <=>388-Terminal company may
not arbitrarily subject one class of passengers
to inconvenience in matter of identification of
baggage; railroad commission may by rea-
sonable regulation prevent discrimination by
terminal company against class of passengers
In matter of identification of baggage.
A terminal company may not arbitrarily sub-
ject one class of passengers to an inconvenience
in the matter of the identification of baggage
from which under substantially the same cir-
cumstances, it protects and saves another class;
and if it attempts to do so, such action on its
part constitutes discrimination which the re-
lators, being the governmental agency having
supervision of such matters, may by reasonable
regulation prevent in the exercise of the sound
judgment of the relators under our statutes.
En Bane.
Original application for mandamus by the
State, on the relation of A. S. Wells and oth-
ers, as Railroad Commissioners of the State
of Florida, against the Jacksonville Terminal














66

, ria
ma
tior
4tl


ide

ba
to
m
hin
er
64


Sth


4!~ ~iI
I.,

I~I


i

II


I 4


which would permit a setoff to be
against the husband's alimony obliga-
SSee Chappell v. Chappell, FlaApp.
971, 253 So.2d 281.
3] There is competent substantial ev-
to support the conclusion that the
md had the financial ability to pay the
alimony and that he willfully refused
so. Once this determination was
the husband was not entitled to have
aim for modification considered. Fed-
Feder, Fla.App.3rd, 1974, 291 So.2d
Martin v. Martin, Fla.App.4th, 1972,
So2d 553.
e husband's contentions with respect to
attorney's fees are without merit.
FIRMED.

BSON, A. C. J., and SCHEB, J., con-



o KEY NUMBERSYSTEM




In the Interest of S. IR, a child,
Appellant,
V.
STATE of Florida, Appellee.
No. 76-665.

district Court of Appeal of Florida,
Second District.
Aug. 4, 1976.


The Circuit Court for Pinellas County,
k A. Page, J., certified question as to
their dismissal with prejudice was man-
ry or discretionary when petition alleg-
delinquency was not filed within 30
s from date complaint was received by
ke office or intake officer or division of
th services. The District Court of Ap-
i, Hobson, J., held that statute providing
t, on motion, petition alleging delinquen-
shall be dismissed with prejudice, if it


was not filed within 30 days from date
complaint was referred to intake office,
prescribes action of court and therefore is a
grant of authority so that "shall" within it
means "may"; thus dismissal with preju-
dice is discretionary.
SQuestion answered.


Infants -t 16.6
Statute providing that, on motion, peti-
tion alleging delinquency shall be dismissed
with prejudice if it was not filed within 30
days from date complaint was referred to
intake office prescribes action of a court
and therefore is a grant of authority so that
"shall" means "may"; thus dismissal with
prejudice is discretionary when petition
alleging delinquency is not filed within 30
days from date complaint was received by
intake office or intake officer of the divi-
sion of youth services. Rules of Juvenile
Procedure, rule 8.020(bX5); West's F.S.A.
Const. art. 5, 2.


Robert E. Jagger, Public Defender, and
James G. Gagnon, Asst. Public Defender,
Clearwater, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee,
and Robert J. Landry, Asst. Atty. Gen.,
Tampa, for appellee.

HOBSON, Judge.
The Circuit Court of the Sixth Judicial
Circuit has certified to this court for our
consideration the following question:
IS DISMISSAL WITH PREJUDICE
MANDATORY OR DISCRETIONARY
WHEN A PETITION ALLEGING DE-
LINQUENCY IS NOT FILED WITHIN
30 DAYS FROM THE DATE THE COM-
PLAINT WAS RECEIVED BY THE IN-
TAKE OFFICE OR INTAKE OFFICER
OF DIVISION OF YOUTH SERVICES?
Florida Statute 39.05(7) (1975) states:
"On motions by or in behalf of a child,
a petition alleging delinquency shall be
dismissed with prejudice if it was not
filed within 30 days from the date the


_


336 SOUTHERN REPORTER, 2d SERIES


'--


.4



ir





* .


4. .'
1t
* A,

-A

4?

-4?
.

.1i


J' W


76-13

complaint was refer
fice." (emph is ao
Whereas, Florid Ruk
dure provide in ule
"On motions by o
a petition allege ng d>
supervision m be
dice if it was iot fiI
from the date the c,
by the Intake fficc
It has often n
word "shall" is sed
can be director ratio
In Fagan v. Ro bins,
So. 863, at pa 86
approved the f low;
the Supreme urt
Becker v. Lebann. '
612:
"'The word "sha;
Legislature to press
court is usually a gr
means "may," and
to be mandatory it i
necessary lim tio
has been mad out.
power.'"
See also Simmo i v.
626, 36 So.2d 20 and
ton v. Genung, la.A
271.
The statute (otec
word "shall" is ised I
a court and the fore
ty and means nay.
tution, Article
"supreme court shall
practice and p us
The statute is roce
stantive and, t ere
exclusive rule- aki
preme court. St;
229 So.2d 236.
In answer to he c
missal with pre udic(
a petition allege ng
within 30 days rom
was received b the
officer of the ivisi
McNULTY, J.,
concur.




I


SBRITTON v.STATE 3
Cite as Fla.App., 336 So.2d WS3


s from d to
take offi
therefore i a
1il" within it
with pr u-





motion, ti-
be dismi
led within 30
s referred to
i of a co rt
hority so t
ismissal th
hen peti on
ed within 30
Received by
Sof thed vi-
i of Juve ile
Vest's F.A.



defender nd
lic Defen er,

, Tallaha
. Atty. Gn.,


;ixti Judi
:ourt for
question:
PREJUDI
RETIONA
,EGING ]
ED WITI
E THE C(
BY THE
'E OFFI(
SERVICE
)75) state
alf of 'a c
ency shal
flwas
(i ate


IrK


I complaint was referred to the intake of-
fice." (emphasis added)
S Whereas, Florida Rules of Juvenile Proce-
dure provide in Rule 8.020(b)5):
"On motions by or in behalf of a child,
a petition alleging delinquency or need of
supervision may be dismissed with preju-
dice if it was not filed within thirty days
from the date the complaint was received
by the Intake Officer." (emphasis added)
It has often been held that when the
:. wbrd "shall" is used by the legislature it
can be directory rather than mandatory.
SIn Fagan v. Robbins, 1928, 96 Fla. 91, 117
So. 863, at page 866, our supreme court
approved the following pronunciation by
S the Supreme Court of Pennsylvania in
Becker v. Lebanon. etc., 188 Pa. 484, 41 A.
612:


S "'The word "shall" when used by the
Legislature to prescribe the action of a
court is usually a grant of authority, and
neans "may," and even if it be intended
to be mandatory it must be subject to the
necessary limitation that a proper case
has been made out for the exercise of the
power.'
S See also Simmons v. State, 1948, 160 Fla.
626, 36 So.2d 207, and State ex re. Harring-
ton v. Genung, Fla.App.2d 1974, 300 So.2d
271.
The statute quoted above in which the
word "shall" is used prescribes the action of
N a court and therefore is a grant of authori-
ty and means "may." The Florida Consti-
tution, Article V, 2, provides that the
"supreme court shall adopt rules for the
practice and procedure in all courts ..
The statute is procedural rather than sub-
stantive and, therefore, is subject to the
exclusive rule-making power of our su-
preme court. See State v. Garcia, Fla.1969,
229 So.2d 236.
In answer to the certified question: Dis-
m\issal with prejudice is discretionary when
. a petition alleging delinquency is not filed
within 30 days from the date the complaint
S was received by the intake office or intake
officer of the Division of Youth Services.
S McNULTY, C. J., and BOARDMAN, J.,
concur.


Charles BRITTON, Appellant,
V. :
STATE of Florida, Appellee.
No. Z-316.
District Court of Appeal of Florida,
First District.
Aug. 31, 1976.


Defendant was convicted, upon a plea
of nolo contender, in the Circuit Court,
Duval County, R. Hudson Olliff, J., of pos-
session of marijuana, and he appealed. The
District Court of Appeal, Smith, J., held
that warrantless arrest of defendant predi-
cated solely upon officers' smelling odor of
burning marijuana when defendant opened
door of house trailer was unreasonable, ren-
dering subsequent seizure of marijuana
from trailer inadmissible.
Reversed.


1. Searches and Seizures 4=7(1)
Absent a judicial warrant, exigency or
other exceptional circumstances, Fourth
Amendment protects and makes effective a
citizen's reasonable expectation of privacy,
U.S.C.A.Const. Amend. 4.
2. Searches and Seizures *=7(10)
Behind the door of his home a citizen
has an expectation of privacy far surpass-
ing his similar interest in his driveway,
front porch or other parts of the cartilage.
3. Drugs and Narcotics =66 5
Defendant has constructive possession
of contraband when he has knowledge of its
presence coupled with his ability to main-
tain control over it or reduce it to his physi-
cal possession.
4. Searches and Seizures 07(10)
A greater justification is required for a
warrantless intrusion into the privacy of a
home including a mobile home than for
similar intrusion into an automobile.


'<
"i












wacox t -
W TATTv.WILCOXK. __~`~ i
aba, FlaAp., 251 So.2d U8


Robert L. Shevin, Atty. Gen., Tallahassee,
and Mary Jo M. Gallay, Asst Atty. Gen.,
Tampa, for appellee.

PER CURIAM.
Appellant was charged with burglary,
possession of burglary tools, and grand lar-
ceny. He was convicted as charged on all
three counts. The evidence was sufficient
to support his convictions on the first two
. ..._A- I _-i L.- -_?I ._- 1.. .... -


:. county. nowever,.ne e
to the value of the pro
the larceny count was ii
grand larceny.
S The evidence on this i
,. 'tool box, certain office e
Cases of blasting mater
sole evidence adduced
only to the value of the
Which totalled $28.80. T
its own devices to dete
r the rest of the items.
f showing by means of e
that the value of the ite
or more, appellant is e
conviction for grand larc
it larceny. See Smart
577 (Fla. 2d DCA 1973).
In view whereof, thej
i tences for burglary and
Salary tools herein are,
judgment and sentence f
vacated and the cause ii
try of a judgment of gt
V and the imposition of a
9. tence therefore.

HOBSON, Acting C.
Sand SCHEB, JJ., concur


'*1


STATE of Florida, Appellant,
V.
Lois A. WILCOX, Appellee.:
No. 77-27L .
District Court of Appeal of Florida,
Second District.
S Nov. 2, 1977.


nvience auuuceu as .
perty taken under Appeal was taken by State from an
sufficient to prove order of the Circuit Court, Pinellas County,
Elizabeth A. Kovachevich, J., placing de-
t s t fendant, a felony offender, on unsupervised
uipent, and at a pprobation for a period of one year. The
equipment, and two District Court of Appeal, Boardman, C. J.,
al were taken. rlhe held that: (1) order was nonappealable, but
as to value related was subject to being considered by certiora-
e blasting material, ri if it was unauthorized or violated essen-
he jury was left to tial requirements of precedential law, and
mine the value of (2) statute providing that defendant placed
Snce there was no on probation for commission of felony of-
ompetent evidence fense be supervised by Department of Of-
ms taken was $100 fender Rehabilitation was mandatory.
entitled to have his
eny reduced to pet-. Petition for certiorari granted, order
v. State, 274 So2d reversed and cause remanded with di-
rections.

judgments and sen-.
possession of bur- 1. Criminal Law *~1011 .,
affirmed; but the Order placing defendant, a felony of-
For grand larceny is fender, on unsupervised probation for a pe-
s remanded for en- riod of one year was not appealable, as
lilt of petit larceny '"sentence" was not imposed within mean-
in appropriate sen- ing of rule and of statute governing appeal
Sby State, but it was subject to being con-
sidered by District Court of Appeal by cer-
J., and McNULTY tiorari if it was unauthorized or violated
essential requirements of precedential law.
West's F.SA. 924.07, 924.07(5); 34
West's FS.A. Rules of Criminal Procedure,
'^ rule 3.700(a).
:'" See publication Words and Phrases
for other judicial constructions and
r-'* :i. ,-: definitions.


cuit Court
gston, J.,
burglary ,
rand l
,' Court
>mpet
items ta
'as entitle
'tion redu

for burgl
ols affiri
grand I
dled with

:. >,
V- I

alue ofg
which ha
ft to its o
-f the rest
ig by com
of the ite
fendant
n for gra
V.



fender, B
'Specl Al
:'w lia


E I


compete
/d M
ad kcNU:


Appellanl


,f Florida I


2. Criminal Law e-982.1
,- Probation is a creature of statute and
courts are, therefore, limited to authority
afforded by statute. West's F.S.A. 948.-
01(3).


or
he
is-
ny
of
nt
en
to
ed

ry

2e-
di-





a'

of


as
d


Lr-
t.
t.


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~.-. ;


~HCIIL~-~
irSC~
:U:,:'''~ ~~ -'?!il.
r


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w
bS~n~iiu~ii~


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351 SOUTHERN REPORTER, 2d SERIES --


3. Criminal Law 0-982.
Statute providing that a defendant
placed on probation for commission of a
felony offense be supervised by Department
of Offender Rehabilitation is mandatory
and operated to require that defendant be
so supervised when placed on probation
upon plea of nolo contender to felony of-
fense of attempted burglary. West's F.S.A.
777.04(4Xc), 948.01(8). '


Robert L Shevin, Atty. Gen., Ti
and Charles Corces, Jr., Asst A
Tampa, for appellant ''
Jack 0. Johnson, Public Defe
James A. Cornelius, Asst Public
Bartow, for appellee.

BOARDMAN, Chief Judge.
This cause has been presented
the timely filing of a notice of
review an order placing appellee/d
Lois A. Wilcox, a felony offender
pervised probation for a period of
This is a nonappealable order, bu
elected to treat the appeal as a pi
writ of certiorari.


allahassee,
.tty. Gen.,


3.700(a) defines "sentence" to mean "the
pronouncement by the Court of the penalty
imposed upon a defendant for the offense
of which he has been adjudged guilty."
Inasmuch as adjudication was withheld, as
it typically is when probation is imposed, a
sentence was not imposed within the mean- "
ing of Rule 3.700(a). Review by appeal not
being proper in the circumstances of this ."
case, the court may consider the order of
the trial court by certiorari if the order is,
as here, unauthorized or violates the essen-
tial requirements of precedential law. Kil-
gore v. Bird, 149 Fla. 570, 6 So2d 541
(1942). .


nrer, ana Appellee was charged with attempted
Defender, burglary of a dwelling.2 She pled nolo con-
tender to attempted burglary. Section <
777.04(4Xc) provides that any attempt of
any degree of burglary is a third-degree -
to us by felony.3 Massey v. State, 348 So2d 1244 ,
appeal to (Fla. 1st DCA 1977). Adjudication was
defendant, withheld, and she was placed on unsuper-
,on unsu- vised probation for one year. The state
one year. argues that the trial court erred in impos-
t we have ing unsupervised probation.


petition for


[1] The state may appeal those orders,
rulings, sentences, and judgments specifi-
cally enumerated in Section 924.07, Florida
Statutes (1975).1 Section 924.07(5), "[t]he
sentence, on the ground that it is illegal," is
only arguably applicable to the facts of this -
appeal. We point out that Fla.R.Crim.P.
1. Appeal by the State--The state may ap-
peal from:
(1) An order dismissing an indictment or
information or any count thereof;
(2) An order granting a new trial; '-
(3) An order arresting judgment;
(4) A ruling on a question of law when the
S defendant is convicted and appeals from the
judgment;
(5) The sentence, on the ground that it is
illegal;
(6) A judgment discharging a prisoner on
habeas corpus;
(7) An order adjudicating a defendant in-
sane under the Florida Rules of Criminal Pro-
cedure; or
(8) All other pretrial orders, except that it
may not take more than one appeal under
this subsection in any case.


Section 948.01(3), Florida Statutes (1975),
authorizes the court to impose a term of
probation in lieu of a term of imprisonment,
and the defendant is to be placed, in certain
situations, under the supervision of the De-
partment of Offender Rehabilitation
(DOR).
If it appears to the court upon a hear-
ing of the matter that the defendant is
Sec. 924.07, Fla.Stat. (1975). Additional
grounds for appeal by the state are set out in
Sec. 924.071 (1975).
2. The information stated that the offense was
committed contrary to 5 810.02(3) and 77.04,
Fla.Stat (1975).
.4
3 Although the Fourth District in Bownes v.
State, 345 So.2d 787 (Fla. 4th DCA 1977), stat-
ed that attempted burglary is a first-degree
misdemeanor, the statement was made in the
context of a recitation of the controlling facts
rather than as a legal holding of the court.
There is no citation of authority and no discus-
sion of or indication that the issue before this
court was ever presented in Bownes. Conse-
quently, Bownes does not provide any prece- -"
dential value.


90 Fla.


t
I


3 r C
N'


;.' :--''\ V


"


not
.'cour
just:
requ
suff
cou I
judi
and
and
imp
ant.
und.
[del
proi
their
tinu
per
Hov
tio.-
und.
unit
call.
ing
ntx
to *
reh.
ectio
[2, .
hat a
leanr
ision
fad
Bquir













...ant
the penal
the offen
;ed guilty
withheld,
i imposed,
n the me
y appeal
noes of t
.he order
the order
ss the e
al law. K
3 So2d 5


i attempt
led nolo e
ry. Sect
attempt
third-degp
3 So.2d 1
lication
on unsup
The st
ed in imp


fja (19w
,e a term
nprisonme
ed, in cert
)n of the
tehabilitat

upon a he
defendant

*). Additic
are set ou

lie offense1
2(3) and 7n


in Bowne
,'A 1977),
a first-de
is made in
controlling f
* of the cc
and no dis
sue before
'wans. Co
Side any pr


fj ..


& ''-
vi', r
I,


- 76-142
Fla. 91


?risar ses


not likely again to engage in a criminal
course of conduct and that the ends of
justice and the welfare of society do not
require that the defendant shall presently
suffer the penalty imposed by law, the
court, in its discretion, may either ad-
judge the defendant to be guilty or stay
and withhold the adjudication of guilt,
and in either case stay and withhold the
imposition of sentence upon such defend-
ant, and shall place him upon probation
S under the supervision and control of the
[department] for the duration of such
S- : probation. And the [department] shall
thereupon and thereafter, during the con-
tinuance of such probation, have the su-
S pervision and control of the defendant.
S However, no defendant placed on proba-
tion for a misdemeanor shall be placed
., under the supervision of the [department]
-. unless the court affirmatively and specifi-
.. cally orders such supervision after find-
ing that supervision in the community is
necessary to provide adequate protection
to the community [or] to assist in the
rehabilitation of the offender, or both.
Section 948.01(3), Florida Statutes.
S [2,3] Although the statute provides
that a defendant on probation for a misde-
meanor need not be placed under the super-
Svision of the DOR, supervision by the DOR
of a defendant on probation for a felony is
required by the statute. It has been held


SGRIMES and OTT, JJ., concur.


"1.
.2


I *'..


L;


that the word "shall" when used by the
legislature to prescribe the action of a court
is usually a grant of authority and means
"may." Simmons v. State, 160 Fla. 626, 36
So.2d 207 (1948); State er rel. Harrington
v. Genung, 300 So.2d 271 (Fla. 2d DCA
.1974). However, it has also been held that
probation is a creature of statute, and the
courts are therefore limited to the authority
afforded by the applicable statute. Pick-
man v. State, 155.So.2d 646 (Fla. 3d DCA
1963), cert. denied, 164 So.2d 805 (Fla.1964);
Brown v. State, 302 So.2d 430 (Fla. 4th
DCA 1974). We hold that Section 948.01(3),
Florida Statutes (1975) providing that a de-
"fendant placed on probation for commission
of a felony offense be supervised by the
Department of Offender Rehabilitation is
mandatory.
The petition for writ of certiorari is
granted, and the cause is reversed and re-
manded with directions consistent with this
opinion.


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