text:
    Henry BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 48229.
    Supreme Court of Florida.
    Feb. 1, 1979.

      Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, Miami, for appellant.
    Jim Smith, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellant Brown was convicted of first-degree murder and sentenced to death following a jury recommendation of life imprisonment. Our review of this case is predicated on article V, section 3(b)(1) of the Florida Constitution and section 921.-141(4), Florida Statutes (1975).

FACTS

On August 3, 1973, Abraham Goldstone drove to a shopping mall to cash a social security check. When he failed to return, his wife reported him missing. That evening a police officer saw five young men pushing a car later identified as belonging to Goldstone. All fled when the officer approached, but he caught up with two and they in some manner implicated Brown. The car was impounded, and an examination disclosed Goldstone’s bankbook in the trunk, scuff marks on the interior of the trunk lid, bloodstains and bloodstained towels in the car, and at least one fingerprint later identified as Brown’s. In the early morning hours of August 4, officers went to Brown’s home, informed his father of their purpose, told Brown his rights, and questioned him. He admitted possession of the car and said he got it from Steve Benyard. Brown was then arrested for possession of a stolen car. After Brown was released, officers developed additional data linking Brown to Goldstone’s disappearance and, after again informing Brown of his rights, they questioned him further. He amplified his earlier statement by revealing that he had come across Benyard and Mack Simmons with the car in a school parking lot and that Benyard had said he obtained it at the Sky Lake shopping mall in North Miami Beach.

In the due course of investigation officers discovered Goldstone’s body at a small lake near the shopping mall. Goldstone had died from drowning, but his body showed that he also had been shot in the shoulder and hit about the head. On August 10, Simmons was arrested for first-degree murder. Brown and Simmons were then brought together by police officers and told their rights. Simmons was asked whether Brown was involved in the killing and answered in the affirmative. (At trial this statement was introduced through the testimony of the interrogating officer, over objection by the defense on the ground that the statement was inadmissible hearsay.) After being advised of his rights once again, Brown conceded to the police that he was implicated in Goldstone’s death.

He related that on August 2 Benyard and Simmons asked him to join them in robbing a bank. He had agreed, and on August 3 they went to the shopping mall to steal a car. They picked Goldstone’s car, and when he approached to enter his vehicle Benyard struck him, forced him into the car, and then forced him into the trunk. They drove to Simmons’ home. Simmons and Brown wanted to leave Goldstone in an isolated area, but Benyard wanted to kill him. They drove to the lake and Benyard forced Goldstone into the water. All three of them struck Goldstone several times with their fists and with boards, and both Brown and Benyard took turns shooting at Gold-stone with Benyard’s gun. They left Gold-stone for dead, but as they started to leave they observed Goldstone climbing out of the lake. They returned to the water’s edge, forced their victim back into the water, and Benyard then held Goldstone below the surface until he was dead. The three conspirators split Goldstone’s money, and Brown received Goldstone’s watch after asking Benyard’s permission to take it. On the night of the crime, but after the police had recovered Goldstone’s car, Benyard had come to Brown’s home, had threatened and hit Brown, and had taken Goldstone’s watch. The facts revealed in Brown’s confession are consistent with the physical evidence of the crime and the testimony of Timothy Gordon, a friend of the conspirators who visited them at Simmons’ house on the day of the murder.

PROCEDURE

On October 10, Brown was indicted for first-degree murder. He entered a negotiated plea of guilty to second-degree murder, which was accepted by the trial judge. A condition of the plea was that Brown aid the state in the prosecution of Benyard. Brown submitted to a polygraph test and went before the grand jury. He later refused to testify at Benyard’s trial, as a consequence of which the negotiated plea was vacated and a plea of not guilty was entered by the trial judge when Brown stood mute. Brown was brought to trial on a charge of first-degree murder, but a hung jury necessitated a second trial. It is from Brown’s conviction and sentence in the second trial that review is now sought.

Following Brown’s conviction for first-degree murder, a separate sentencing trial was held pursuant to section 921.141(1), Florida Statutes (1975). The jury there learned that Brown was sixteen years old at the time of the crime, that he was not under the influence of any mental or emotional disability, and that he claimed to have fired away from Goldstone, not at him, when the conspirators took turns shooting at him in the lake. The defense elicited testimony that Simmons and Ben-yard had not received the death penalty, but the trial judge held this revelation to be irrelevant. With the “door opened” by this testimony, however, the trial court permitted the state to show that Brown and Simmons had each negotiated second-degree murder pleas in return for testifying against Benyard, that each had refused to testify (as a consequence of which the state was unable to go to trial against Benyard), and that Benyard was now immune from criminal prosecution. On this record, the jury recommended that Brown be sentenced to life imprisonment.

The trial judge sentenced Brown to death, finding Brown’s age at the time of the crime to be the only possible statutory mitigating circumstance but rejecting its significance because Brown “is mature, well beyond his age, and does not appear or act as a juvenile.” The trial judge found that Brown’s lack of a significant prior criminal record was not a mitigating circumstance because he had an extensive, intervening record of arrests and charges following an escape from the county jail. In regard to aggravating circumstances, the trial judge found that the murder of Goldstone was especially heinous, atrocious, and cruel, and that it was committed during the course of a robbery and kidnapping.

ISSUES

Before us Brown has argued that at least eight errors marred his conviction and sentence. His challenge to the constitutionality of Florida’s death penalty statute does not warrant discussion. Additionally, there is no merit whatsoever to his assertions that comments of the trial judge prejudiced his trial, that his confession was involuntary, or that faulty instructions were submitted to the jury. We believe it necessary, however, to discuss fully the four remaining contentions. These are (1) that the double jeopardy clause of the Florida and federal constitutions barred his being tried for first-degree murder, (2) that impermissible hearsay evidence was allowed to go to the jury, (3) that reversible error occurred as a result of prosecution comments on the defendant’s silence, and (4) that the death penalty is improper under the circumstances of this case.

(a) Double Jeopardy

Brown argues that he was unconstitutionally twice placed in jeopardy when the state sought to prosecute him for first-degree murder, since an earlier negotiated plea of guilty to second-degree murder had been “accepted” by the trial judge. He relies principally on this Court’s decision in Troupe v. Rowe, 283 So.2d 857 (Fla.1973). The state argues that further prosecution was not barred because Brown refused to testify against Benyard, an understood condition of his bargain which was known to the judge at the time he accepted Brown’s “conditional” plea.

There are two distinct questions which arise from Brown’s plea of former jeopardy. The first is whether jeopardy in fact “attached.” The second is whether, if it did, a reprosecution is nonetheless permitted. We agree with Brown that jeopardy had attached once the trial court accepted his plea of guilty following a full inquiry into its factual foundation. We are not led to conclude, however, that under the circumstances of this case there is any constitutional bar to his second trial.

1. Jeopardy did attach. Article I, section 9 of the Florida Constitution provides that “No person shall ... be twice put in jeopardy for the same offense . .” The fifth amendment to the United States Constitution, applicable to the states through the due process clause of the fourteenth amendment, is substantially identical. The policy of this constitutional right is succinctly stated in Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957):

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

The exact points at which jeopardy will “attach” are relatively clear. The United States Supreme Court has held that jeopardy attaches in a jury case when the jury is impaneled and sworn, and in a non-jury trial when the trial judge begins to hear evidence. Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). We have held that jeopardy attaches on an unconditional guilty plea when the plea is or should have been accepted, and on a conditional plea which is accepted on conditions favorable to the defendant.

The case now before us involves a negotiated and conditional plea which was accepted by the trial judge on the basis of Brown’s representation that he would later perform certain acts, namely submit to a lie detector test, appear before a grand jury, and testify truthfully against Benyard. Whether the performance of the conditions preceded or was to follow submission of this agreement to the trial judge, once it was presented and “accepted” (which in this case it was), the “risk of conviction” which marks “jeopardy” was total and unequivocal, just as in the case of an unqualified plea. Jeopardy had “attached.” However,

the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial.

2. Reprosecution is not barred. Federal jurisprudence has evolved the notion that once a person has been placed in jeopardy he cannot be tried again unless his first trial was cut short either for “manifest necessity” or to meet the “ends of public justice.” Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824). No authority has been brought to our attention as to the double jeopardy effect of a non-consensual vacation of a guilty plea because the defendant later has refused to perform a condition of his plea bargain. Our analysis must turn, then, to the principles which underlie or are served by the double jeopardy bar and the standards which led to the “manifest necessity” and “ends of public justice” limitations thereon. No mechanical test is available.

The double jeopardy limitations appear to have evolved in the federal sphere in order to balance our founders’ concern for an accused’s right to a final determination in one proceeding (a freedom from state harassment) against society’s interest in assuring that a trial (or substituted determination of innocence or guilt) will be held and concluded for all accuseds. Each case, it is said, must be decided on its peculiar facts. We have seen the individual’s constitutional right overbalanced by the state’s interest where a first prosecution is nullified by the affirmative act of a defendant, such as a motion for a mistrial or an appeal of a conviction, and we have seen the state’s interest subverted to the individual’s where the cause of dismissible or reversible error can be traced to prosecutorial or judicial overreaching. We have also seen the state’s interests given dominance where the judicial process itself ceases to function and a particular proceeding must be aborted, such as in the case of a hung jury or external exigencies. These instances suggest that the United States Supreme Court will not allow the double jeopardy clause to be used either for prosecuto-rial or judicial manipulations designed to thwart a defendant’s “one trial” right, or to reward criminal defendants when a non-prosecutorial or non-judicial accident affects the trial process itself. With these rough guideposts, we can examine the plea bargaining process as it relates to our criminal justice system.

The basic framework in which plea bargains are currently viewed was stated by the United States Supreme Court in Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971):

Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned.

Both that Court and this have placed the plea bargaining process under close judicial scrutiny in a proceeding required to be conducted in public. These safeguards are superimposed in order to guarantee intelligent waiver of a defendant’s rights to a jury trial, to confront the witnesses against him, to present witnesses in his own behalf, and to be convicted only upon proof beyond a reasonable doubt, all of which are relinquished in exchange (as it were) for the public’s inability to incarcerate or fine the defendant to the full extent of the penalties assigned to the particular conduct by the public’s elected representatives. Both values derive their legitimacy from “the public interest,” as is recognized by the American Bar Association’s Section of Criminal Justice and by this Court. Six specific considerations are listed by the American Bar Association as appropriate in determining whether a trial judge should accept concessions made by a prosecutor during the course of plea negotiations. The fifth of these is of particular relevance here:

(5) that the defendant has given or offered cooperation when such cooperation has resulted in or may result in the successful prosecution of other offenders engaged in equally serious or more [sic] criminal conduct . . . ,

Bargained guilty pleas, then, are in large part similar to a contract between society and an accused, entered into on the basis of a perceived “mutuality of advantage.”

Without commenting on the need or desirability of plea bargaining as a general matter, it is apparent what would follow from Brown’s contention that the attachment of jeopardy mechanically bars subsequent prosecution. Both the state and criminal defendants would be discouraged from considering plea negotiations which contemplate the defendant’s promise to testify in another case. The promise would be unenforceable by the state and therefore of little value to prosecutors. A defendant would be hesitant to enter into an agreement which required performance of his promise before he knew the bargain would be accepted by a judicial officer. Given the fact of negotiated pleas in our society, then, no “public interest” would be served by Brown’s construction of the double jeopardy clause in conditional plea cases.

We hold, therefore, that the double jeopardy clause does not bar the reprosecution of an accused who willfully refuses to perform a condition of a guilty plea which has been accepted by the trial court on that basis. Further, in light of our colloquy with counsel during oral argument, we now hold that the state was not barred from bringing the second prosecution on the original charge of first-degree murder, despite the fact that the vacated plea had been for a lesser degree of criminality.

(b) Asserted Trial Errors

We have considered together Brown’s contentions regarding hearsay testimony and improper prosecutorial comments, since in this case they are inextricably connected. As stated above, the interrogating officer who eventually obtained Brown’s confession testified that Simmons and Brown were brought together and informed of their rights. He testified that Simmons was then asked whether Brown was involved in the murder of Goldstone. Over defense objection, the officer was permitted to testify that Simmons “hesitated for approximately a minute before making an answer and then he said yes.” (The trial judge ruled the testimony admissible because Brown was present when Simmons spoke.) The officer further testified that Simmons was taken from the interrogation room after a further period of silence, and Brown was again informed of his right to remain silent. Brown then confessed in detail to his role in the murder.

The record discloses that discussion concerning Brown’s preconfession silence first arose in defense counsel’s cross-examination. In subsequent closing argument, defense counsel attempted to convince the jury that Brown’s confession was the product of fear and questioning by an experienced investigator. To achieve this, defense counsel emphasized that on every pri- or occasion Brown had willingly undergone numerous hours of questioning and had willingly told police that he received the stolen car from Benyard. Counsel rhetorically asked whether a person guilty of murder would volunteer the names of accomplices then unknown to the police and concluded that it was the coercive atmosphere of the interrogation room — the prolonged silence punctuated by the single word “yes” combined with the accuser’s being removed from the room before Brown had an opportunity to respond — which finally forced a confession from the sixteen-year-old’s lips.

The state sought to counter the picture painted by the defense by describing Brown as a murderer who calculated that while the police could connect him to the stolen car they could not connect him to the murder so long as his co-conspirators would not talk. The state suggested that Brown had set upon a course of deception which was suddenly shattered by the accusation of Simmons. It was in this discussion that the prosecutor challenged the suggestion that Brown had no opportunity to respond, stating; “There was at least another thirty seconds . .. Henry Brown’s silence after the word yes was just as much an admission of guilt as everything else he said. . . . [Then Brown] confessed to all those details . . ..”

Brown argues to us that the officer’s testimony as to Simmons’ single-word accusation constituted hearsay and that Brown was deprived of the right to confront Simmons. He further asserts that the prosecutor’s comments to the jury constituted reversible error under the decision of this Court in Bennett v. State, 316 So.2d 41 (Fla.1975).

These peculiar facts raise complex evidentiary and constitutional problems. At the threshold, we confront the state’s implicit contention that a hearsay declaration becomes admissible in a criminal proceeding if, without more, it is within any established exception to the hearsay rule. That is not enough, however. The United States Supreme Court, in its plurality opinion in Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), cited with approval in Mancusi v. Stubbs, 408 U.S. 204, 213, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972), has made clear that hearsay is admissible in a criminal trial only if there are sufficient “indicia of reliability” to allow the jury to determine truthfulness without the benefit of cross-examination.

In this case, the trial judge allowed Simmons’ statement into evidence on the ground that it was made in Brown’s presence. It had been the rule in Florida that an accusation of crime otherwise excludable as hearsay could be admitted into evidence if it was made in the presence of a defendant who remained silent under circumstances which naturally and reasonably call for a reply. This is no longer the rule of law in Florida, however, since all “admissions” derived from a defendant’s silence in the course of a custodial interrogation (as occurred in this case) are absolutely barred from the defendant’s trial. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

We nonetheless conclude that Simmons’ statement was admissible in this case, in that it simply was not hearsay. The principal issue at trial was the reliability of Brown’s confession. The jolting effect produced by Simmons’ accusation was the single circumstance explaining Brown’s decision to confess, both negating inferences that Brown’s confession resulted from police pressure and affirmatively suggesting that Brown confessed because his previous story would no longer be credited. The testimony as to the Brown-Simmons confrontation described a critical and plainly relevant operative fact, not hearsay. The testimony was, therefore, admissible.

Our next concern is the effect of this testimony on the trial in light of its amplification in closing argument. The prosecutor’s comment to the jury that Brown’s silence constituted a confession in the face of Simmons’ accusation, which assumed the truth of Simmons’ statement, went beyond the issue of voluntariness and constituted an improper use of the testimony. This error, however, was harmless in light of the entire record unless the prosecutor’s remarks constituted reversible error under the rule announced by this Court in Bennett v. State, 316 So.2d 41 (Fla.1975). In Bennett we held that any comment on an accused’s exercise of his right to remain silent is reversible error, without regard to the harmless error doctrine. We reaffirmed that position in Shannon v. State, 335 So.2d 5 (Fla.1976), and more recently in Clark v. State, 363 So.2d 331 (Fla.1978). Bennett, however, articulated a prophylactic rule designed to obviate the possibility that a conviction could ever be obtained by the improper inference that a defendant’s silence evidenced guilt. It was not designed to serve defendants as a “no-lose” trial tactic.

In this case testimony regarding Brown’s silence was first elicited by defense counsel on cross-examination, and it was defense counsel who placed before the jury in closing argument the idea that Brown was not given an opportunity to respond to Simmons’ accusation. It was certainly permissible for defense counsel to argue that the interrogation room has an oppressive atmosphere, but there is no logic in now allowing the Bennett rule to insulate the defendant’s reference to his silence as a trial tactic from fair response by the prosecution. Having characterized the circumstances of the custodial confrontation and invited a prosecution response, the defense may not be granted a new trial because the state “rose to the bait.” This is simply not a case in which the state attempted to gain a conviction on the basis of the defendant’s silence; it is a case in which the defendant sought to gain an acquittal by arguing that his brief silence proved his confession was coerced. The rule announced in Bennett is inapplicable here.

(c) Alleged Sentencing Errors

With respect to the trial court’s imposition of a sentence of death following the jury’s advisory sentence of life imprisonment, our precedents under the death penalty statute require a reduction of the sentence to life. The jury’s recommendation is ordinarily to be followed so long as reasonable men would not disagree. Tedder v. State, 322 So.2d 908 (Fla.1975). The jurors in this case had all the information appropriate to their “weighing” responsibility under the statute, and they found that it favored life imprisonment. The more severe penalty is not so clearly directed by the sentencing evidence that it should override the considered judgment of Brown’s jury. The sentence imposed by the trial court is therefore vacated.

The conviction entered below is affirmed, and the case is remanded with directions to enter a sentence of life imprisonment. It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG and HATCHETT, JJ., concur.

ADKINS, Justice,

concurs in part and dissents in part: I would affirm the judgment and sentence.

      . Benyard’s trial had to be postponed when neither Brown nor Simmons indicated they would testify at the trial, and the delay deferred trial beyond the speedy trial period established in our rules.

      . Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

      . Brown had selected isolated comments and rulings of the trial judge to demonstrate alleged hostility to counsel and resultant prejudice to the defense. Our review of the full record reveals that the firmness of the trial court’s rulings was warranted, if not required, by the tactics and persistence of defense counsel in respect to evidentiary matters and various other alleged trial errors.

      . The record does not support Brown’s contention that he in fact complied with the express terms of his bargain. Although testifying against Benyard was not expressly stated to be one of the conditions, the agreement was so understood by all involved. Brown acknowledged on the record that he was expected to testify against Benyard.

      . Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

      . Ray v. State, 231 So.2d 813 (Fla.1969). This rule is consistent with federal decisions in this area. See United States v. Williams, 534 F.2d 119 (8th Cir.), cert. denied, 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d 177 (1976). United States ex rel. Metz v. Maroney, 404 F.2d 233 (3d Cir. 1968), cert. denied, 394 U.S. 949, 89 S.Ct. 1287, 22 L.Ed.2d 483 (1969); cf. Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927) (“A plea of guilty . . . is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence.”).

      . Troupe v. Rowe, 283 So.2d 857 (Fla.1973).

      . Submission of the guilt or innocence question to the person (judge) or persons (jury) with authority to make that determination constitutes jeopardy. See Reyes v. Kelly, 224 So.2d 303 (Fla.1969), cert. denied, 397 U.S. 958, 90 S.Ct. 961, 25 L.Ed.2d 142 (1970).

      . Illinois v. Somerville, 410 U.S. 458, 467, 93 S.Ct. 1066, 1072, 35 L.Ed.2d 425 (1973).

      . United States v. Jorn, 400 U.S. 470, 480, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971).

      . United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976).

      . United States v. Ball, 163 U.S. 662, 672, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). But see Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

      . See United States v. Jorn, 400 U.S. 470, 485 n.12, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971).

      . United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824).

      . Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949) (wartime field trial impossible to continue).

      . See Fla.R.Crim.P. 3.171.

      . See Santobello v. New York, 404 U.S. 257, 264, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971) (Douglas, J., concurring).

      . ABA Section of Criminal Justice, Pattern Rules of Court and Code Provisions § 10-1.9(a) (1975).

      . See Davis v. State, 308 So.2d 27 (Fla.1975).

      . ABA Section of Criminal Justice, supra note 18.

      . Brady v. United States, 397 U.S. 742, 752, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

      . See United States v. Dinitz, 424 U.S. 600, 609, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976).

      . See United States v. Anderson, 514 F.2d 583 (7th Cir. 1975). See aiso Bishop, Broken Bargains, 50 J. Urban L. 231 (1972); Note, United States v. Anderson — The Plea Bargain as an Agreement to Become and to Remain Convicted, 17 Wm. & Mary L.Rev. 383 (1975); 7 Ind.L. Rev. 761 (1974). We express no view as to the permissibility of reprosecution for a crime in a higher degree than the original charge after a negotiated plea has been vacated. Different considerations would be involved in such a case. See Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974).

      . See also Hoover v. Beto, 467 F.2d 516 (5th Cir.), cert. denied, 409 U.S. 1086, 93 S.Ct. 703, 34 L.Ed.2d 673 (1972). We need not determine here the significance of the “not ‘crucial’ or ‘devastating’ ” language in the Dutton plurality opinion. See Comment, The Uncertain Relationship Between the Hearsay Rule and the Confrontation Clause, 52 Tex.E.Rev. 1167, 1181-93 (1974).

      . See, e. g., Albano v. State, 89 So.2d 342 (Fla.1956); Kemp v. State, 48 So.2d 756 (Fla.1950); Edwards v. State, 155 Fla. 550, 20 So.2d 916 (1945); Autrey v. State, 94 Fla. 229, 114 So. 244 (1927); Roberts v. State, 94 Fla. 149, 113 So. 726 (1927); Mumford v. State, 70 Fla. 424, 70 So. 399 (1915); Sumpter v. State, 45 Fla. 106, 33 So. 981 (1903). Additionally, this Court long ago recognized that the special circumstances of custodial interrogation could affect the reliability of admissions by silence. Dedge v. State, 128 Fla. 343, 174 So. 725 (1937).

      . See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Jones v. State, 200 So.2d 574 (Fla.3d DCA 1967), cited with approval in Bennett v. State, 316 So.2d 41 (Fla.1975). The continued vitality of this hearsay exception where the silent admission occurs in the presence only of private persons is not before us.

      . See generally J. Wigmore, Evidence § 1766 (J. Chadbourne rev. 1976).

      . This point has been properly preserved for review by virtue of defense counsel’s immediate, though unsuccessful, objection and motion for mistrial. See Clark v. State, 363 So.2d 331 (Fla.1978).

      . See Clark v. State, 363 So.2d 331, 334-35 (Fla.1978) (“A defendant may not make or invite an improper comment and later seek reversal based on that comment.”).


source: Caselaw Access Project

author: PER CURIAM. ADKINS, Justice,

license: Public Domain

text:
    PETITION OF the COMMITTEE ON STANDARDS OF CONDUCT FOR JUDGES.
    No. 48796-C.
    Supreme Court of Florida.
    Feb. 1, 1979.
   PER CURIAM.

Pursuant to our supervisory authority over the state judiciary, this Court created a Committee on Standards of Conduct Governing Judges in February 1973 to “render written advisory opinions to inquiring judges concerning the propriety of contemplated judicial and non-judicial conduct.” Through its chairman, that Committee has now asked the Court to amend or clarify four specific aspects of the order under which it was established and presently functions. We have carefully considered each of the subject areas presented.

1. Name Change. The Committee proposes that it be designated as a “Commission” rather than Committee. The functions of the Committee were designed to parallel those of The Florida Bar’s Professional Ethics Committee, which provides advisory opinions to members of the Bar on the propriety of proposed conduct. In light of our disinclination to expand the Committee’s authority (see paragraph 2(a) below), and to avoid any confusion that might result if the name of the committee were similar to that of the Judicial Qualifications Commission, we decline to alter the name of the Committee at this time.

2. Powers, (a) The Committee asks whether it has the authority to render advisory opinions to the Judicial Qualifications Commission. We respond in the negative. The scope of the Committee’s authority was carefully confined to advisory opinions to judges concerning “contemplated” conduct. We can conceive of no way in which the Commission, or any of its members, could be legitimately concerned with proposed acts of the members of the judiciary, and advice on any other subject to the Commission would exceed the Committee’s authority-

(b) The Committee asks whether its power includes the authority to recommend changes in the Code of Judicial Conduct to this Court, in light of the experience it has developed interpreting the Code of Judicial Conduct. Just as committees of the Bar develop expertise and discern problems with our rules of procedure which lead to recommendations for changes, so too would the Committee be a natural body to make Code change recommendations to the Court. The Committee may, therefore, from time to time submit formal proposals and recommendations to the Court regarding the Code of Judicial Conduct. Recommendations for Code changes is not, however, the principal or primary purpose of the Committee.

3. Succession. Our original order provides that the chairman and vice-chairman “shall serve for a term of one calendar year,” without addressing succession. The Committee is in doubt as to whether these officers are eligible to succeed themselves. We hold that they may succeed themselves one time, so that any officer of the Committee may serve two successive one-year terms.

Accordingly, paragraphs 2 and 5 of the Court’s order establishing the Committee are amended to read (underlining signifies additions):

2. The members of the Committee shall elect a chairman and a vice-chairman, and each shall serve for a term of one calendar year. No officer shall serve more than two successive terms. A majority vote of all of the members of the Committee shall be required to elect the chairman and vice-chairman.
5. The Committee shall render advisory opinions to inquiring judges relating to the propriety of contemplated judicial and non-judicial conduct, but all opinions shall be advisory in nature only. No opinion shall bind the Judicial Qualifications Commission in any proceeding properly before that body. An opinion of the Committee may, however, in the discretion of the Commission, be considered as evidence of a good faith effort to comply with the Code of Judicial Conduct; provided that no opinion issued to one judge or justice shall be authority for the conduct, or evidence of good faith, of another judge or justice unless the underlying facts are identical. All opinions rendered by the Committee shall be in writing, and a copy of each opinion, together with the request therefor, shall be filed with the Clerk of the Supreme Court and with the chairman of the Judicial Qualifications Commission. All references to the name of the requesting judge shall be deleted. In addition, the Committee may from time to time submit to the Supreme Court formal proposals and recommendations relating to the Code of Judicial Conduct.

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

ADKINS, Justice,

concurs in part and dissents in part:

I would change the name from “Committee” to “Commission.” Otherwise, I concur.

      . Art. V, §§ 2(b), 15, Fla.Const.

      . Petition of the Committee on Standards of Conduct for Judges, 327 So.2d 5, 5 (Fla.1976).


author: ALDERMAN, Justice. ADKINS, Justice, BOYD, Justice,

text:
    The TRIBUNE COMPANY, Appellant, v. SCHOOL BOARD OF HILLSBOROUGH COUNTY, etc., et al., Appellees.
    No. 53493.
    Supreme Court of Florida.
    Feb. 1, 1979.
    W. S. Rodgers, Jr. and Ted R. Manry, III of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Cary R. Singletary of Yanger & Single-tary, and W. Crosby Few, Tampa, for appel-lees.
   ALDERMAN, Justice.

This is an appeal from a final judgment of the Circuit Court of Hillsborough County, upholding the constitutionality of chapter 69-1146, section 5, Laws of Florida, dealing with teacher disciplinary proceedings in Hillsborough County. The crucial language of this special act provides: “[T]he county board of public instruction shall conduct a public or private hearing at the option of the teacher charged on such charge or charges . . . .” The issues

to be decided are whether this language allows an unconstitutional delegation of legislative authority and whether it creates a valid exception to section 286.011(1), Florida Statutes (1977), originally enacted in 1967 and commonly referred to as the “Sunshine Law” or the “Public Meetings Act.” We hold that the act is constitutional and that it does create a valid exception to section 286.011(1).

The Tribune Company sued the School Board of Hillsborough County, seeking declaratory and injunctive relief and alleging that an agent of the Tribune had attempted to attend disciplinary hearings being conducted by the School Board but was barred under the authority of chapter 69-1146, section 5. The Hillsborough Classroom Teachers Association was allowed to intervene. All parties stipulated that there were no factual disputes and that the trial court should treat the matter as coming before it for final judgment.

The trial court ruled in favor of the School Board and the Classroom Teachers Association and dismissed the Tribune’s complaint. The court held that chapter 69-1146, section 5, does not constitute an unconstitutional delegation of legislative authority and also concluded that it does create a valid exception to section 286.011(1), explaining:

Few would gainsay the tremendous good that can come from the Sunshine Act. The undersigned concurs wholeheartedly with its basic principle. But what it overlooks here is that in this case, the Legislature has established an exception thereto by supplementary act relating to a disciplinary hearing. This exception provision carries with it the presumption of constitutionality so often reexpressed as to need no citation of supporting authority. The fact that its wisdom is solely the domain of the Legislature is equally as well established.

We agree that there has been no invalid delegation of legislative authority. Under chapter 69-1146, section 5, the charged teacher neither makes law nor invokes it. Cf. Conner v. Joe Hatton, Inc., 216 So.2d 209 (Fla.1968). A dismissal hearing under this special act is instigated completely outside the power of the charged teacher. The law is effective without any affirmative act of the teacher. The teacher has only the clearly defined and limited option of an open or closed hearing after the matter has been set down for hearing.

Further, we find that chapter 69-1146, section 5, as the later legislative expression, is a valid legislative exception to section 286.011. It is not for us to pass upon the wisdom of this legislative exception. Holley v. Adams, 238 So.2d 401 (Fla.1970); Marston v. Gainesville Sun Publishing Co., 341 So.2d 783 (Fla. 1st DCA 1976), cert. denied, 352 So.2d 171 (Fla.1977). Rather, we are obliged to read the provisions of the general law together with the subsequent special act and harmonize them if possible, and if there is unresolvable conflict between the provisions, the later special act, as a more specific expression of the legislative will, will be given effect. Marston v. Gainesville Sun Publishing Co., supra; Beverly v. Division of Beverage of the Department of Business Regulation, 282 So.2d 657 (Fla. 1st DCA 1973).

Accordingly, we affirm the final judgment of the trial court.

It is so ordered.

ENGLAND, C. J., and OVERTON, SUNDBERG and HATCHETT, JJ., concur.

ADKINS, J., dissents with an opinion.

BOYD, J., dissents with an opinion.

ADKINS, Justice,

dissenting.

I dissent.

Just as the right of privacy initiated a new field of jurisprudence and has grown to constitutional proportions, see 62 Am. Jr.2d Privacy section 2, at 678, so it is that the right of the public to know was initiated by the guaranty expressed in section 286.011, Florida Statutes (1977), and may eventually become a constitutional right.

At common law the public had no right to attend meetings of governmental bodies. See City of Miami Beach v. Berns, 245 So.2d 38 (Fla.1971). Section 286.011, Florida Statutes (1977), was enacted for the purpose of strengthening the faith of the public in government by eliminating the suspicion of “hanky-panky” which would naturally arise from secret sessions. In Board of Public Instruction of Broward County v. Doran, 224 So.2d 693, 699 (Fla.1969), we said:

Regardless of their good intentions, these specified boards and commissions, through devious ways, should not be allowed to deprive the public of this inalienable right to be present and to be heard at all deliberations wherein decisions affecting the public are being made. [Emphasis supplied.]

Open meetings in disciplinary matters against teachers are of vital importance to the public welfare. A person inclined to bring spurious charges against a teacher would hesitate to do so if confronted with the requirement of making such charges a matter of public notoriety. Distraught parents, relying upon exaggerated reports made by teacher-disciplined children, may be hesitant in making a charge until an objective investigation is made.

On the other hand, if a charge against the teacher is warranted, the accusation and hearing should be open, as the issue is one of public concern. For example, a teacher justly accused of immorality could very easily resign and find employment in another county. Quite often the tolerant school board would prefer to accept the resignation and keep the matter “hush-hush” rather than be confronted with publicity concerning the bad character of a local teacher.

A majority of the Court has not yet clothed the “right to know” with a cloak of constitutional proportion, but we do recognize the public policy involved.

The only question we are required to determine is whether the special act constitutes an unlawful delegation of power. The majority of the Court holds that the “government in the sunshine” law is applicable to all meetings of the school board, but any teacher in Hillsborough County may require that a disciplinary hearing be held in private. Any law may incorporate therein any condition precedent upon which its decision may depend, but it cannot be made to depend on the unbridled discretion of a single individual. Amara v. Town of Daytona Beach Shores, 181 So.2d 722 (Fla. 1st DCA 1966). See also Cassady v. Consolidated Naval Stores Co., 119 So.2d 35 (Fla.1960).

Conner v. Joe Hatton, Inc., 216 So.2d 209 (Fla.1968), cited in the majority opinion, recognized the right of the legislature to enact a law complete in itself, designed to accomplish a general public purpose, which would authorize designated officers or administrative boards within valid limitations to provide rules and regulations for complete operation and enforcement of the law within its express provisions. The majority does not cite any cases in which unbridled legislative authority is delegated to an individual instead of to a public official or administrative body.

It is interesting that the trial judge relied upon Marston v. Gainesville Sun Publishing Co., 341 So.2d 783 (Fla. 1st DCA 1976), cert. denied, 352 So.2d 171 (Fla.1977), and stated that we had approved the decision by our refusal to review it. I emphasize that a denial of certiorari only determines that there is no conflict between the case under review and any other decision. It was not a determination on the merits of the decision.

The issue here is whether the legislature may delegate to an individual the responsibility of affirmatively making the decision as to whether disciplinary proceedings in Hillsborough County shall be public or private. In this case, the statute in question directs that the Hillsborough County School Board will conduct a public or private hearing at the option of the teacher. It does not in and of itself direct that the hearing shall be private or public. It ties the school board to whatever determination the teacher makes in this regard and does so against a backdrop of a previous determination by the legislature that the public policy of the State of Florida demands open hearings. Cassady v. Consolidated Naval Stores Co., supra.

The judgment of the trial judge should be reversed.

BOYD, Justice,

dissenting.

The statute in question in this case grants “an unrestricted discretion” to individual public employees in a policy matter. Therefore, it is an unconstitutional delegation of legislative authority under the rule of Conner v. Joe Hatton, Inc., 216 So.2d 209 (Fla.1968). The issue of whether the hearings in question will be open or closed is a policy matter because it affects not only the interests of the teacher but also the public’s right to know. This is made even more clear by our state’s strong public policy in favor of open meetings of all public bodies.

      . Chapter 69-1146 is a special act applicable only to Hillsborough County. Section 5 provides:
      Before any teachers [sic] shall be discharged from his or her employment after the completion of a probationary period of employment by such teacher, charges in writing against such teacher specifying one or more of the causes specified in section 4, of this act, shall be filed by the county school superintendent of public instruction with the board of public instruction of said county and a copy thereof shall be served on such teacher with a notice of the time and place when a hearing upon such charge or charges will be held by the county board of public instruction of said county not less than ten (10) days prior to such hearing. At the time and place specified in such notice, the county board of public instruction shall conduct a public or private hearing at the option of the teacher charged on such charge or charges, at which hearing there shall be first presented the evidence in support of such charge or charges and thereafter the evidence on behalf of such teacher with respect thereto. At such hearing, the teacher shall have a right to be heard and represented by counsel.

      . Section 286.011(1), Florida Statutes (1977), provides:
      All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation or any political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, regulation, or formal action shall be considered binding except as taken or made at such meeting.
      There is no change in the language of this statute from its original enactment as chapter 67-356, Laws of Florida.


author: OVERTON, Justice.

text:
    James E. ASHCRAFT, Appellant, v. STATE of Florida, Appellee.
    Nos. 53551-53553.
    Supreme Court of Florida.
    Feb. 1, 1979.
    Aubrey O. Dicus, Jr., of Battaglia, Ross, Stolba & Forlizzo, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., and Charles Core-es, Jr., Asst. Atty. Gen., Tampa, for appel-lee.
   OVERTON, Justice.

These three consolidated cases are before us on direct appeal from an order of the circuit court upholding the validity of section 918.017(1), Florida Statutes (1977), which directs the bifurcation of criminal proceedings when the defendant relies upon the defense of insanity. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution.

Subsequent to trial in these cases, we held section 918.017(1) unconstitutional. State ex rel. Boyd v. Green, 355 So.2d 789 (Fla.1978). Accordingly, the decision of the trial court is reversed and the cause remanded for proceedings consistent with State ex rel. Boyd v. Green.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


author: PER CURIAM.

text:
    Arthur L. CLIFTON, Petitioner, v. The Honorable James T. NELSON, Circuit Judge, in and for the Seventh Judicial Circuit of Florida, and Florida State Board of Osteopathic Medical Examiners, Respondents.
    No. LL-430.
    District Court of Appeal of Florida, First District.
    Jan. 4, 1979.
    Rehearing Denied March 5, 1979.
    Donald C. Jacobson, Daytona Beach, for petitioner.
    Robert L. Shevin, Atty. Gen., Carolyn M. Snurkowski and Joseph W. Lawrence, II, Asst. Attys. Gen., Tallahassee, for respondents.
   PER CURIAM.

The prayer of the petition is DENIED. Melanson v. Nelson, 366 So.2d 1191 (Fla. 1st DCA 1979).

SMITH, Acting C. J., and ERVIN and BOOTH, JJ., concur.


text:
    Nathaniel HILL and Annette Hill, his wife, Appellants, v. The TUSCANY OF PALM BEACH, INC., Mr. C. Robert Evans, Dr. Robert Heggie, Mr. Nathan Karp, Mr. Kerman Linde, Dr. Harold Manor, Mr. William Pollack, Mrs. Elmer Rogers, Dr. Lester Skolnick, Mrs. Rosalind S. Pittle, Appellees.
    No. 77-955.
    District Court of Appeal of Florida, Fourth District.
    Jan. 10, 1979.
    Rehearing Denied March 5, 1979.
    Arnold R. Ginsberg of Horton, Perse & Ginsberg and Dunn & Johnson, Miami, for appellants.
    Edward R. Nicklaus of Dixon, Dixon, Lane, Mitchell & Harris, Miami, for appel-lees.
   PER CURIAM.

Plaintiffs appeal a summary final judgment entered in favor of defendants in an action for damages resulting from the twice refusal of defendants to approve a sale of plaintiffs’ interest in a cooperative apartment house to prospective purchasers. The record on appeal discloses that there are genuine issues of material fact which have not been eliminated by movants for summary judgment.

Reversed and remanded for further proceedings.

DOWNEY, C. J., ANSTEAD, J., and RIVKIND, Associate Judge, concur.


text:
    David Alan ABELSON, Appellant, v. STATE of Florida, Appellee.
    No. 78-1609.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 1979.
    Rehearing Denied Feb. 15, 1979.
    Jack 0. Johnson, Public Defender, and Thomas A. McDonald, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

David Alan Abelson appeals the revocation of his probation. The finding of a violation of the condition requiring payment of court costs must be and is stricken from the order of revocation, since appellant was and is indigent and there was no showing of his ability to pay those costs. However, we will not remand for reconsideration of the revocation order. Appellant’s having left the county after his probation supervisor had denied him permission to do so, which was supported by ample evidence, constitutes a substantial violation of his probation and is sufficient to support the revocation order and judgment and sentence. The order and judgment and sentence are therefore affirmed in all other respects. See Coxon v. State, 365 So.2d 1067 (Fla.2d DCA 1979).

GRIMES, C. J., and HOBSON and RYDER, JJ., concur.


author: GRIMES, Chief Judge.

text:
    AMEY, INC., a Florida Corporation, Appellant, v. HENDERSON, FRANKLIN, STARNES & HOLT, P. A., and Gulf Insurance Company, Appellees.
    No. 78-513.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 1979.
    Rehearing Denied Feb. 15, 1979.

      T. Rankin Terry, Jr. of Terry, Adams & Corbin, Fort Myers, for appellant.
    G. Hunter Gibbons and Andrew D. Owens, Jr. of Dickinson, O’Riorden, Gibbons,. Quale, Shields & Carlton, Sarasota, for ap-pellees.
   GRIMES, Chief Judge.

This is an appeal from a summary judgment exonerating a law firm from liability for any damages caused by an allegedly faulty title search.

The appellant (buyer) entered into a contract for the purchase of real property. In order to fund the purchase, the buyer applied to the Lee County Bank for a $60,000 loan to be secured by a mortgage on the property being purchased. An abstract of title to the property was updated through October 10, 1976, and delivered to appellees (law firm), who were the attorneys for the bank. One of the attorneys examined the abstract and issued a preliminary opinion of title to the bank covering the period of time from the earliest public records through the date the abstract was certified. The preliminary opinion included eleven items which had to be obtained or had to be resolved before the law firm would issue a final opinion of title.

The closing of the purchase and the loan was held in the bank on November 23,1976. The lawyer who had written the preliminary title opinion was present at the bank on other business that day, and the bank asked him to sit in on the closing in order to examine the documents which had been submitted in response to the exceptions contained in the preliminary title opinion. The bank had not requested the law firm to make any title search covering the period subsequent to October 10, 1976. The bank charged the buyer the $325 fee paid to the law firm for examination of the title.

After the closing it was discovered that on November 3, 1976, the Internal Revenue Service had recorded a lien against the property for certain income taxes owed by the sellers. The buyer then sued the law firm for damages. The court ultimately concluded that the law firm owed no legal duty to the buyer.

At the outset, we find it difficult to see how the law firm could be held liable to anyone when no one requested a title search beyond October 10, 1976. The mere presence of the lawyer at the closing under the circumstances outlined above would not change the picture. Assuming for the sake of argument, however, that the law firm was negligent in not searching the public records from October 10, 1976, to the date of closing so as to be in a position to advise of the existence of the income tax lien, we cannot see how this could constitute a violation of a legal duty to one who was not the law firm’s client. We are unwilling to hold that the buyer was a third party beneficiary of the contract between the bank and the law firm.

In seeking to overcome the absence of privity, the buyer cites McAbee v. Edwards, 340 So.2d 1167 (Fla. 4th DCA 1976). In McAbee the court upheld a complaint against an attorney which alleged that, by virtue of negligent advice by the attorney to the plaintiff’s decedent, the plaintiff had been deprived of the inheritance she would have received had the decedent’s wishes been carried out. The scope of this ruling, however, was circumscribed by the same court in Adams v. Chenowith, 349 So.2d 230 (Fla. 4th DCA 1977). In Adams a real estate purchaser was denied a cause of action against the seller’s attorney for a mistake in the closing statement which resulted in the purchaser paying the seller more than the amount called for by the contract. The court made the following observation:

We have considered the case of McAbee v. Edwards, 340 So.2d 1167 (Fla. 4th DCA 1976), and find it clearly distinguishable from this case. There the attorney owed a duty to a testatrix to make a will for the benefit of her daughter to whom this court held a duty was owed also. The lawyer in that case represented only one “side” of a transaction because there was only one side. Here there are two sides, two interests to be protected and we cannot hold a lawyer responsible to all parties in a transaction unless it is alleged (and proved) he committed some non-negligent tort such as fraud or theft or the like. There is not even a hint of that here.

Adams v. Chenowith, supra at 231.

Adams is most persuasive. Just as in Adams, there was more than one “side” of the transaction before us. The law firm’s obligation ran to its client. There is no suggestion that the buyer was harmed by any type of fraudulent conduct. It may be that in transactions such as this the buyer often chooses to rely on the expertise of the lender’s lawyer on the premise that the lawyer would not approve the title for the loan unless the title were clear. However, this is a calculated risk, and if it proves to be unfounded, the buyer has no claim that the lawyer violates a duty owed to him. To hold otherwise would place the lawyer in an untenable position, particularly when it is well known that lawyers will often pass certain title defects when examining a title for a loan but refuse to do so when representing a purchaser. The fact that the buyer had to pay the law firm’s fee did not establish a lawyer-client relationship. The fee was charged to the bank, and the bank simply chose to make the payment of this expense item one of the conditions of the loan.

AFFIRMED.

HOBSON and SCHEB, JJ., concur.


author: DANAHY, Judge.

text:
    Lawrence Allen ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 78-652.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 1979.
    Rehearing Denied Feb. 23, 1979.

      Jack 0. Johnson, Public Defender, and Paul C. Helm and David Boone, Asst. Public Defenders, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

Appellant was convicted of possessing dynamite, an explosive, without a valid license or permit. He received a sentence of three years imprisonment. The dynamite in question was destroyed by law enforcement officers during the investigation of the case and, therefore, could not be and was not produced at appellant’s trial. Appellant’s motion for production of the dynamite was denied. The failure or inability of the state to produce the dynamite forms the basis of appellant’s primary attack on this appeal. For reasons which we will express in this opinion, we reject appellant’s arguments and affirm his conviction.

Before dealing with the issues concerning the destruction of the dynamite, however, we will first dispose of a preliminary point raised by appellant. Appellant contends that the state had the burden of proving that he did not hold a license or permit for possession of the dynamite and failed to introduce competent evidence of that fact. Therefore, appellant argues, the trial judge erred in denying appellant’s motion for judgment of acquittal at the close of the state’s case.

Appellant bases his point on the statute defining the crime, which is Section 552.101, Florida Statutes (1977), reading as follows:

It is unlawful for any person to possess an explosive unless he is the holder of a current, valid license or permit, as above provided, and possesses such explosive for the purpose covered by the license or permit he holds .

Appellant’s argument is that the state has the burden of proving each essential element of a crime and that where the legislative definition of the crime makes the illegality of possession depend on the absence of a permit, absence of the permit is an essential element of the crime and proof thereof must be included in the state’s case. The state, on the other hand, argues that the absence of a permit to possess an explosive is an exception carved out by Section 552.101 and, an exception being a defensive matter, the state did not have the burden of alleging or proving the absence of the exception in this case.

The state did make an effort to prove that appellant held no valid permit to possess an explosive, but we agree with appellant that the evidence tendered by the state was clearly insufficient for that purpose. Furthermore, in an appropriate case, we might be inclined to accept appellant’s proposition that the state had the burden of proof on this issue. In analogous cases involving the possession of a firearm without a license, older cases reason that the burden falls on the defendant to establish that he holds a license. That reasoning is based on the theory that the state should not be required to prove a negative and that it is appropriate to place upon a defendant the burden of proving a fact which is peculiarly within his knowledge. However, more recent decisions, beginning with Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (Pa.1975), have reached the opposite conclusion on the basis that the burden of proving an essential element of a crime may not constitutionally be shifted to a defendant. Cases reaching these various conclusions in the firearm situation are collected in the annotation at 69 A.L.R.3d 1054 (1976). '

But in the case at bar we are not required to decide the issue of who had the burden of proving the absence of a license or permit. After appellant moved for judgment of acquittal at the close of the state’s case and received an adverse ruling on that motion, he took the stand on his own behalf. On cross-examination he was asked whether he held a permit to possess an explosive and answered that he did not. It has been held in this state that where the prosecution fails to introduce evidence of an essential element of a crime, so that there is error in failing to grant a motion for directed verdict or judgment of acquittal, that error is not grounds for reversal where the defendant takes the stand and in his testimony supplies the missing element. Roberts v. State, 154 Fla. 36, 16 So.2d 435 (1944); Kozakoff v. State, 104 So.2d 59 (Fla.2d DCA 1958); Bullard v. State, 151 So.2d 343 (Fla. 1st DCA 1963). In the Bullard case, the court specifically rejected the contention that evidence presented after denial of a motion for directed verdict of acquittal cannot be considered on appeal in determining whether the denial of the motion was reversible error.

We, therefore, reject appellant’s preliminary point directed to the state’s failure to introduce, during its case in chief, competent evidence of appellant’s lack of a permit. Passing that issue, we turn to a consideration of the issues presented by the state’s destruction of the dynamite. Appellant raises some serious questions and an explanation of the facts in this case is necessary to understand our conclusion that those questions should be resolved adversely to appellant. We will state those facts as revealed by the state’s witnesses, since obviously the jury believed those witnesses and rejected defendant’s blanket denial.

Appellant was arrested and charged as the result of an investigation conducted by sheriff’s deputies of Polk County and Highlands County in collaboration with a confidential informant, Otis Burdette. Burdette testified that appellant approached Bur-dette and asked where he could get rid of some dynamite. Burdette said that offhand he didn’t know but he would check and see, and maybe he could handle some. Some time later Burdette was at a used car lot in Fort Meade in company with Bobby (Bear) Colvin when appellant approached Burdette and Colvin and asked whether Burdette wanted “that dynamite.” Burdette said he did and appellant suggested that they go and get it.

Appellant got in his truck and proceeded to Old Bowling Green Road. Colvin and Burdette followed in Burdette’s car. At a point on Old Bowling Green Road, Burdette parked his car while appellant proceeded on in his truck. After a space of about 20 minutes, appellant returned and handed Burdette through the window of his car three sticks of what Burdette referred to as dynamite. Burdette described these items as wet to the touch, with bubbles on them.

Burdette and Colvin then returned to the used car lot in Fort Meade. A few minutes later appellant pulled in and Burdette asked what he owed appellant. Appellant suggested they just call it even on a debt of $50 which appellant owed Burdette. The bargain was made.

During all of this time Burdette was wearing a transmitting device strapped to his body, which had been placed there by officers of the Highlands County Sheriff’s Department. Two sheriff’s deputies testified that they listened in on the conversations at the used car lot but were not close enough to the vehicles on Old Bowling Green Road to hear any conversation which took place there. These deputies said they could specifically identify the voices of Bur-dette, Colvin and appellant, and corroborated Burdette’s account of the conversations at the used car lot. Colvin also testified, and corroborated the story told by Burdette.

After the second conversation at the used car lot, Burdette met sheriff’s deputies from Polk County and Highlands County at a pre-arranged spot on the Peace River. There he delivered to the officers the items which appellant had handed to Burdette on the Old Bowling Green Road. These officers described the items at appellant’s trial and identified photographs of them, which were introduced in evidence. The testimony of one of these officers, Sgt. Nemeth, is crucial.

Sgt. Nemeth described the items in question as three sticks of dynamite which were old, soggy, not firm, with white crystallized material on them. He testified that he had received four weeks training at the Red-stone Arsenal in Huntsville, Alabama, in the recognition, the care and handling, and the safe disposition of common explosives, particularly homemade bombs. He said that in his training there was emphasis on the recognition of explosive devices and that he had handled dynamite of different types and strengths.

Sgt. Nemeth further testified that the items delivered by Burdette were three sticks of dynamite bearing a label with the words “DuPont — high explosive — dynamite — rated at 60%. Sgt. Nemeth said he considered these items to be dangerous to handle or to store because there was an oily residue on them which he believed to be nitroglycerin. He said he had been instructed that any time he found dynamite in an old, deteriorated condition with an oily surface or “sweat beads” on it, he was to consider it to be nitroglycerin and to be highly dangerous and unstable. Further, he had been instructed that in such a case, the proper render-safe technique was detonation.

After Burdette delivered the alleged dynamite to the officers at the location on the Peace River, and after each had visually examined the items and photographs were made, Sgt. Nemeth placed the three sticks in about three to four inches of water at the edge of the river and fired five rounds from an Ml carbine at the sticks from a distance of 30 to 40 feet. There was no explosion. The three sticks simply broke into pieces and began to dissolve and float out into the river. No part of the material was recovered. Thus there was no chemical analysis of the material and no evidence as to its nature other than the testimony which we have summarized above.

Appellant first argues that without introduction in evidence of the alleged dynamite, or a chemical analysis of the material demonstrating that it was dynamite, the state’s case was fatally defective since the critical issue was whether the items possessed by appellant were in fact dynamite.

This first argument of appellant fails in the face of the fundamental rule, said by our supreme court to be too well settled to require citation of authorities, that any material fact in a criminal case may be proved by circumstantial evidence, as well as by direct evidence. Moorman v. State, 157 Fla. 267, 25 So.2d 563 (1946). Clearly, the nature of a substance alleged to be illegally possessed may be demonstrated by circumstantial evidence. See, for example, United States v. Lawson, 507 F.2d 433 (7th Cir. 1974).

Alternatively, appellant argues that the circumstantial evidence in this case as to the nature of the material alleged to be dynamite was insufficient. He points to the fact that neither Sgt. Nemeth nor any other officer who testified was qualified as in expert in the identification of dynamite. Further, appellant points out, Sgt. Nemeth testified that firing rifle shells into dynamite was a regularly accepted method of detonation known as the “impact method,” and that he had used the impact method before on other suspected dynamite and the substance had exploded. Appellant says that, therefore, the circumstantial evidence in this case was contradictory and could not exclude all reasonable hypotheses of innocence. Contradictory circumstantial evidence, says appellant, cannot be relied upon to prove an essential element of a criminal offense.

But we have only appellant’s argument on this appeal as standing for the proposition that the evidence in this case was contradictory. Appellant offered no evidence at trial to show that dynamite always explodes when hit by shells from a high powered rifle. The state says that the dynamite did not explode because it was old. Again, there was no proof of this fact at trial. So we regard the lack of an explosion as unexplained either way and simply not probative in this case. The jury had no way of assessing its significance and neither do we.

On the whole, we view the circumstantial evidence as sufficient to establish that the material in question was in fact dynamite. It was described as dynamite by all who saw it, including one witness who had received training in the recognition of dynamite. Burdette and Colvin both testified that appellant spoke to Burdette about selling “dynamite.” Burdette paid appellant a sum of money for what appellant had represented to be dynamite. The three sticks bore a label reading “dynamite.” We think this evidence was sufficient.

The last argument made by appellant is the most troublesome. Appellant says that the inability of the state to produce the dynamite for analysis by an expert on behalf of appellant constitutes a denial of due process of law and, therefore, appellant’s conviction cannot stand.

Whenever the state is unable to produce physical evidence which has been in the possession of the state, a serious constitutional issue is presented. It is clear, however, that the state’s failure to produce such evidence does not call for an automatic reversal of a conviction. State v. Sobel, 363 So.2d 324 (Fla.1978). The supreme court in the Sobel case approved a balancing approach suggested by United States v. Bryant, 145 U.S.App.D.C. 259, 448 F.2d 1182 (1971) and its progeny. Under that approach, where evidence is lost or destroyed while in the possession of the state, the impact of the omission must be evaluated in the context of the entire record. A court must examine the circumstances of the loss or destruction to determine whether there has been a violation of the duty of the state to preserve evidence, a duty which clearly arises during the investigatory phase of a case. Whether there has been such a violation, and whether it was flagrant or in total disregard of the rights of the accused, is the first line of inquiry.

But the analysis does not end there. In a case where the destruction of the evidence was a flagrant and deliberate act done in bad faith with the intention of prejudicing the defense, that alone would be sufficient to vitiate a conviction. But where the circumstances amount to less than this, a conviction should not be overturned unless it can be concluded from a review of the record that the defendant’s case was in fact prejudiced by the omission of the nonpre-served evidence. Government of the Virgin Islands v. Testamark, 570 F.2d 1162 (3d Cir.1978).

We are reluctant to describe the actions of Sgt. Nemeth in destroying the alleged dynamite as a violation of the state’s duty to preserve material evidence. As explained by him, his actions were taken in good faith, in the belief that he should promptly employ the render-safe technique which he had been trained to use. Appellant offered no evidence whatsoever attacking the adequacy of Sgt. Nemeth’s training or the reasonableness of his conclusions. Although appellant argues to this court that a portion of the alleged dynamite could safely have been preserved for chemical analysis, he offered no evidence at trial in support of that proposition.

Nothing we say here, however, should be interpreted as condoning the deliberate destruction of material evidence by law enforcement officers. Such action, in our view, could rarely be justified. We say no more than that in this particular case, under the circumstances here presented and in the light of the uncontradicted and unim-peached testimony of Sgt. Nemeth, the destruction of the alleged dynamite does not alone call for reversal of appellant’s conviction on due process grounds. Therefore, we must determine whether appellant’s case was thereby so prejudiced that his conviction cannot stand.

Our supreme court has approved the proposition that the standard of prejudice which must be met by a defendant in order to obtain a new trial varies inversely with the degree to which the conduct of the trial has violated fundamental notions of fairness. Thus more deliberate or flagrant conduct by the state in suppressing evidence requires less of a showing of prejudice to the defendant, while more excusable conduct on the part of the state calls for a showing of greater prejudice to a defendant before relief will be granted. Salvatore v. State, 366 So.2d 745 (Fla.1978).

Under that variable standard, we believe appellant in this case is required to make a clear demonstration of prejudice. This he has not done. We have already concluded that the circumstantial evidence as to the nature of the alleged dynamite was sufficient to support the jury’s verdict. Appellant can only say that he has been prejudiced because he was unable to have the material in question subjected to chemical analysis which might demonstrate that the substance was not in fact dynamite. If this were a close case, we might seriously entertain that argument. Where the nature of a substance determines whether its possession is illegal, the right of a defendant to have that substance subjected to chemical analysis cannot be lightly regarded. State v. Herrera, 365 So.2d 399 (Fla.3d DCA 1978).

But here the jury believed testimony that appellant sold Burdette items which appellant represented to be dynamite and for which he was paid. Appellant did not offer a story that he deliberately defrauded Bur-dette by selling him fake dynamite. He simply denied that the transaction took place and said that he had never in his life been in possession of dynamite. The jury did not believe him, which was its prerogative. Appellant has failed to convince us that there was a substantial doubt in this case as to whether the items in his possession were in fact dynamite. The fact that the items did not explode when Sgt. Nem-eth fired bullets into them did not create such a doubt in the absence of any evidence presented by appellant that the material, if dynamite, would indeed have exploded.

For these reasons, we decline to overturn appellant’s conviction.

Affirmed.

SCHEB, Acting C. J., and OTT, J., concur.

      . For almost forty years Florida has had a statute or a rule specifically providing that a motion for directed verdict or judgment of acquittal is not waived by subsequent introduction of evidence on behalf of the defendant. Fla.R.Crim.P. 3.380, former Rule 1.660[3.660], Sec. 918.08, Florida Statutes (1967) and its predecessors. That provision implies a result contrary to the decisions in the cases cited above, but is not mentioned in any of them.

      . A tape recording of these conversations was made and presumably was available to the defense.


author: PEARSON, Judge.

text:
    AMERICAN HOME ASSURANCE COMPANY, Appellant, v. Frank CURTIS and Susan Curtis, Appellees.
    No. 78-982.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 1979.
    Rehearing Denied March 5, 1979.
    Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami, for appellant.
    Jay Dermer, Miami Beach and Charles Jon Rose, Miami, for appellees.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PEARSON, Judge.

American Home Assurance Company filed a complaint for declaratory judgment against its policyholders, Frank Curtis and Susan Curtis. In the complaint, it was alleged that the company had a present, actual controversy concerning its rights because the defendants had entered into a settlement with the tortfeasors. The complaint set out that Susan Curtis was injured in a North Carolina automobile accident and that the plaintiff insurance company had an automobile liability insurance policy in effect which provided $10,000 uninsured motorist coverage to Susan Curtis. It was then alleged that after an arbitration demand on the uninsured motorist provision of the policy, Frank and Susan Curtis had settled their personal injury claim against the tortfeasors and the tortfeasors’ insurer. The plaintiff then alleged a doubt concerning its rights and responsibilities under its policy with regard to its obligation to continue the arbitration. The cause came on before the trial court and after the taking of testimony, the court entered an order dismissing the complaint but, at the same time, directing the parties to proceed with arbitration, allowing the arbitrators to determine both liability and damages.

We think that it should again be pointed out that it is not proper to dismiss a suit for a declaratory judgment and at the same time enter a declaratory judgment. See 7200 Corporation v. Town of Medley, 340 So.2d 1281 (Fla. 3d DCA 1977). In the present instance, we will proceed as the parties and the court have proceeded to interpret the judgment rendered as one for the defendant holding that uninsured motorist coverage existed.

The evidence before the trial court shows conclusively that the defendants, Frank and Susan Curtis, entered into a settlement agreement with the tortfeasors’ insurance company and that the amount of that settlement exceeded the $10,000 uninsured motorist coverage of plaintiff’s policy. While the evidence is not clear that the tortfeasors’ insurance company first denied coverage, it is argued that such a denial can be found in this record and that it places the injured party in the position of being entitled to proceed for uninsured motorist coverage under the rule stated in Unijax, Inc. v. Factory Insurance Association, 328 So.2d 448 (Fla. 1st DCA 1976).

We find the argument wholly unpersuasive and we hold that this case is governed by Sena v. State Farm Mutual Automobile Insurance Company, 305 So.2d 243 (Fla. 3d DCA 1974), and cases therein cited, wherein this court held:

“We find the decisive issue in the case to be whether an insured is entitled to uninsured motorist benefits under his insurance policy, when he has entered into a settlement with, and executes a release in favor of a person who may be liable for the insured’s injuries, in violation of the terms of the policy including the insured’s right of subrogation. Florida cases clearly answer this question in the negative.” ******

The judgment appealed is reversed and the cause is remanded with directions to enter a judgment for the American Home Assurance Company in accordance with the views herein expressed.

Reversed and remanded.


text:
    Agnes LAIRD, Appellant, v. Josephine POTTER, L. B. Rohan, Jr., and Rohan and Rohan, Appellees.
    No. 77-2601.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 1979.
    Rehearing Denied March 5, 1979.

      Hal P. Dekle, Tallahassee, for appellant.
    Lawrence G. Ropes, Jr., Coral Gables, for appellees.
    Before HAVERFIELD, C. J., and BARK-DULL and HUBBART, JJ.
   PER CURIAM.

Plaintiff, Agnes Laird, appeals an order on post trial motions which granted defendants’ motions for directed verdict and for remittitur in an action for conversion and malicious prosecution.

In 1972 defendant Josephine Potter purchased tax deeds to several houses owned and occupied by Agnes Laird, who instituted legal proceedings questioning Potter’s right of possession. Prior to obtaining a judicial determination as to the validity of the deeds, Potter ousted Laird from possession by locking her out of the houses and had her personal property removed. While the action to determine the validity of the tax deeds was pending, Potter’s attorney, codefendant L. B. Rohan, Jr., along with two other individuals signed a petition to have Laird adjudged incompetent. She was found competent and thereafter filed the present suit seeking compensatory and punitive damages against Potter for conversion of her personal property, and defendants L. B. Rohan, Jr. and his law firm Rohan & Rohan for malicious prosecution arising out of the filing of the incompetency petition. The cause was tried by a jury which returned the following verdicts in favor of Laird: as against the defendant Potter, $3,000 in compensatory damages and $30,000 in punitive damages; as against the defendants L. B. Rohan, Jr. and Rohan & Rohan, $45,000 as compensatory damages and $30,000 as punitive damages. All defendants filed post trial motions attacking the sufficiency of the evidence to support the jury’s verdicts. After a hearing the court struck the $30,000 punitive damage award against Potter on the ground that there was no evidence of malice or willful conduct sufficient to support this award. With respect to the law firm of Rohan & Rohan the court set aside both the compensatory and punitive damages awards on the ground that L. B. Rohan, Jr. in his individual capacity signed the petition to determine competency. Last, the court ordered a remittitur of $30,000 of the $45,000 compensatory damages and $20,000 of the $30,000 punitive damages rendered against L. B. Rohan, Jr. (or in the alternative a new trial) in that this verdict was excessive and against the manifest weight of the evidence. We reverse.

We first considered Laird’s argument that the trial court erred in granting the motion of the law firm of Rohan & Rohan for judgment in accordance with motion for directed verdict. Despite any contentions to the contrary, our search of the record reflects that it is devoid of any motions made by Rohan & Rohan or any of the other defendants for directed verdict at the close of all the evidence and, therefore, the trial court was precluded from considering the post trial motions challenging the sufficiency of the evidence. See Fla.R.Civ.P. 1.480(b) and 6551 Collins Avenue Corp. v. Millen, 97 So.2d 490 (Fla. 3d DCA 1957), cert. quashed, 104 So.2d 337 (Fla.1958). Thus, the trial court erred in granting these post trial motions challenging the sufficiency of the evidence.

With respect to defendants Potter and L. B. Rohan, Jr. there are additional compelling reasons to reverse the herein appealed order on post trial motions.

The law is established that a motion for judgment in accordance with motion for directed verdict should not be granted when there is any reasonable evidence upon which a jury could legally predicate a verdict in favor of the nonmoving party. Tiny’s Liquors, Inc. v. Davis, 353 So.2d 168 (Fla. 3d DCA 1977). There being sufficient evidence in the record as to malice on the part of Potter upon which the jury could have legally predicated its award of punitive damages, we conclude that the trial court erred in striking that award.

The governing law with regard to that portion of the order reducing the amount of compensatory and punitive damages against L. B. Rohan, Jr., or in the alternative granting a new trial is that while such orders need not incant language to the effect that the verdict is against the manifest weight of the evidence or was influenced by considerations outside the record, the order must give reasons which will support one of these two conclusions so that it will be susceptible of appellate review. In other words, orders granting new trials should articulate the reasons so that the appellate courts may fulfill their duty of review by determining whether judicial discretion has been abused. Wackenhut Corporation v. Canty, 359 So.2d 430 (Fla.1978). Before orders for new trial may be entered as alternative to remittiturs, the record must affirmatively show the impropriety of the verdict or there must be an independent determination that the jury was influenced outside the record. Wack-enhut, supra.

In the case at bar the trial court entered such an alternative order for new trial on the ground that the verdicts were against the manifest weight of the evidence with the result of passion or prejudice. When viewed in light of the above legal principles, this order is deficient in that it fails to set out which influences aroused the passion or prejudice of the jury and the reasons to support the bare conclusions that the verdicts are against the manifest weight of the evidence. Once the trial court determined at the close of the evidence that there was a legal basis for recovery of punitive damages and permitted the issue to go to the jury, the jury then had the discretion to award the damages and the amount thereof. Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (1936). The trial court erred in granting a remittitur or in the alternative a new trial to L. B. Rohan, Jr. as the record failed to affirmatively demonstrate the impropriety of the verdicts and there was no reference or inference of any outside considerations which influenced the jury.

Accordingly, the order on pending post trial motions is reversed and the cause remanded to the trial court to reinstate the final judgment entered in accordance with the jury verdicts.

      . for the conversion

      . for malicious prosecution

      . “Rule 1.480. Motion for a Directed Verdict
      “(a) Effect. A party who moves for a directed verdict at the close of the evidence offered by the adverse party may offer evidence in the event the motion is denied without having reserved the right to do so and to the same extent as if the motion had not been made. The denial of a motion for a directed verdict shall not operate to discharge the jury. A motion for a directed verdict shall state the specific grounds therefor. The order directing a verdict is effective without any assent of the jury.
      “(b) Reservation of Decision on Motion. When a motion for a directed verdict made at the close of all of the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within ten days after the reception of a verdict a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict or if a verdict was not returned, such party may move for judgment in accordance with the motion for a directed verdict within ten days after the jury has been discharged.”


text:
    HOUSING INVESTMENT CORPORATION of Florida, Appellant, v. AMERICAN BANCSHARES MORTGAGE COMPANY, INC., Appellee.
    Nos. 78-368, 78-1538.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 1979.
    Rehearing Denied March 9, 1979.

      Williams, Salomon, Kanner, Damian, Weissler & Brooks and Gary S. Brooks, Miami, for appellant.
    Rollnick & Squitero and Neil Steven Rollnick; Arky, Freed, Stearns, Watson & Greer and Eugene E. Stearns, Miami, for appellee.
    Before PEARSON and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant, Housing Investment Corporation of Florida, a lender of money for the construction industry, was the plaintiff in the trial court. It brings these consolidated appeals from (1) a final judgment entered upon the defendant’s motion for an involuntary dismissal pursuant to Florida Rule of Civil Procedure 1.420(b), and (2) a subsequent order allowing attorneys’ fees to the defendant. We affirm in each case for the reasons which follow.

The first point, directed to the final judgment, urges that the trial judge improperly considered some of defendant’s evidence, which was taken out of turn, upon defendant’s motion in the nature of a motion for directed verdict. The trial judge specifically stated in his judgment that he based his ruling on plaintiff’s evidence only. Additionally, it should be noted that the plaintiff did not object to the procedure employed by the court and that the record does not support the plaintiff’s contention that the judgment could be sustained only upon one or more of the affirmative defenses. See Fidelity & Casualty Company of New York v. Tiedtke, 207 So.2d 40 (Fla.4th DCA 1968); and Florida Rule of Civil Procedure 1.120. See also United Bonding Insurance Company v. Dura-Stress, Inc., 243 So.2d 244 (Fla.2d DCA 1971).

The second point claims reversal under the holding in O’Bryan v. Linton, 41 So.2d 169 (Fla.1949), where the court stated that:

******
“. . .a party who gives a reason for his conduct on anything involved in a controversy cannot, after litigation has started, change his ground and put his conduct upon a different consideration
******
“So it is our conclusion that the defendant in this case could not plant his defense on objections which occurred to him after the suit was impending or brought, or which, if they had occurred to him, were not offered at the time the defendant refused to enter into the contract which had already been signed by the purchasers.
“If any such exceptions to the sale were taken by the seller at the first opportunity they might then be obviated and the sale consummated so that the broker would not lose compensation for the services he had performed or be forced to sue for it.”

We think that the rule stated is inapplicable here where the defendant, in its letter of termination of an agreement for plaintiff’s failure to perform, was not required by law to particularize all of the plaintiff’s defaults. The letter was couched in general terms. The issue was not the sufficiency of the letter, inasmuch as it was not necessary for the defendant to “terminate the agreement.” The plaintiff’s action was in the nature of a prayer for specific performance and the issue was plaintiff’s performance under the contract.

The interlocutory appeal from the order allowing attorneys’ fees and costs to the defendant fails to show the abuse of discretion claimed. See Central Hardware Co. v. Stampler, 180 So.2d 205 (Fla.3d DCA 1965), and authorities therein, cited for the rule that it is for the trial court to determine whether or not a witness offered as an expert or skilled witness has been shown to possess the requisite qualifications and special knowledge to authorize his testimony.

Affirmed.

      . “The evidence presented by the Plaintiff with all inferences deduced therefrom and being viewed in a light most favorable to said Plaintiff, does not establish the causes of action set forth in Plaintiffs complaint, it is therefore


text:
    K. W. U., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 78-940.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 1979.
    Rehearing Denied March 5, 1979.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PEARSON, Judge.

The controlling question presented on this appeal is whether the rule that when circumstantial evidence is relied upon to prove guilt, it must be consistent only with guilt and must exclude every reasonable hypothesis of innocence, see Davis v. State, 90 So.2d 629 (Fla.1956), and Forbes v. State, 210 So.2d 246 (Fla. 3d DCA 1968), is applicable when the only element proved by circumstantial evidence is the intent of the defendant to participate in a crime which he did not commit, but for which he is charged as an aider and abettor.

We hold that the rule is applicable, and in the case of a defendant charged as an aider and abettor, the circumstantial evidence relied upon to show his intent to participate must be such as to preclude every reasonable inference that he did not intend to participate in the crime. Cf. Lockett v. State, 262 So.2d 253 (Fla. 4th DCA 1972); and Douglas v. State, 214 So.2d 653 (Fla. 3d DCA 1968).

The judgment declaring K. U., a juvenile, a delinquent is reversed.

Reversed.

BARKDULL, J., dissents.


author: PER CURIAM. PEARSON, Judge

text:
    INDUSTRIAL FIRE & CASUALTY INSURANCE COMPANY, Appellant, v. J. Arthur HAWKESWORTH, Jr., and E. James Schmick, Appellees.
    No. 78-981.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 1979.
    Rehearing Denied March 5, 1979.
    Goodhart & Rosner, Greene & Cooper, Miami, for appellant.
    Horton, Perse & Ginsberg, Miami, for ap-pellees.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Guaranty Life Insurance Co. v. Hall Bros. Press, Inc., 138 Fla. 176, 189 So. 243 (1939); Dutch Inns of America, Inc. v. Jenkins, 301 So.2d 119 (Fla. 3d DCA 1974).

PEARSON, Judge

(dissenting).

I respectfully dissent from the affirmance of the partial summary judgment, which was based upon an order striking the defendant’s defenses. It is my view that a party moving to strike defenses as a sham must produce a record that supports the order striking the defenses as sham. In other words, the bases for the court’s action must appear in the record by affidavits or otherwise. I believe that the rule is correctly stated in the first case cited in the majority’s affirmance, Guaranty Life Ins. Co. of Florida v. Hall Bros. Press., Inc., 138 Fla. 176, 189 So. 243, 246 (1939), where that court stated:

“ ‘But a pleading cannot be stricken out as sham unless the falsity thereof clearly and indisputably appears. As otherwise expressed, to warrant the rejection of a pleading as sham, it must evidently be a mere pretense set up in bad faith and without color of fact. The rule cannot be applied to any case except where the defense is shown to be a plain fiction.’ ”
******