author:
ANSTEAD, Judge. PER CURIAM.
      DAUKSCH, Judge,

text:
    Danny W. ARTHUR, Petitioner, v. The Honorable Carl H. HARPER, as Judge of the Fifteenth Judicial Circuit of Florida, and Richard Wille, Sheriff of Palm Beach County, Respondents.
    No. 78-1512.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 1978.
    Rehearing Denied Dec. 20, 1978.

      Stuart A. Young, West Palm Beach, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for respondents.
   ANSTEAD, Judge.

The petitioner, Danny W. Arthur, is seeking review of a trial court order denying pretrial bail.

Arthur was charged with several life felonies. Bail was denied. The trial court’s denial was predicated in part upon the provisions of Article I, Section 14 of the Florida Constitution:

Until adjudged guilty, every person charged with a crime or violation of municipal or county ordinance shall be entitled to release on reasonable bail with sufficient surety unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great. (Emphasis supplied)

Rule 3.130(a) of the Florida Rules of Criminal Procedure carries forward the provisions of Section 14 by providing in part:

[A]ll persons in custody for the commission of an offense unless it is a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great shall be entitled as of right to be admitted to bail before conviction. (Emphasis supplied)

At the bail hearing no evidence was submitted concerning the alleged offenses but Arthur requested and was permitted to present other testimony he considered relevant to the issue of bail. At the conclusion of the hearing the trial court issued a written order denying bail.

The first issue raised by Arthur is whether or not a trial court in a life felony case has any discretion to grant bail absent a showing that the proof of guilt is not evident and the presumption not great.

Clearly, under the provisions of the Constitution and the Rules of Criminal Procedure no right to bail is afforded to Arthur if the proof of his guilt is evident and the presumption great. Under current Florida law a defendant has the burden of demonstrating that the proof is not evident, etc. before he is entitled to bail as a matter of right. State ex rel. Loper v. Stack, 291 So.2d 207 (Fla. 4th DCA 1974).

Since Arthur presented no evidence as to whether the proof was evident, under Loper, supra, he was not entitled to bail as a matter of right. However, he contends that even if he could not demonstrate that the proof was not evident, etc., the trial court still had discretion to grant bail based upon a consideration of all the evidence presented as to whether Arthur would appear to answer the charges against him. In other words he concedes that he is not entitled to bail as a matter of right but contends that he is entitled to bail in the exercise of discretion by the trial court. To answer this question we must examine the history of Florida law relating to bail.

Under the common law bail was not a matter of right but was granted or denied in the discretion of the trial court:

[A]t common law, bail was granted or denied in the exercise of sound discretion, rather than as a matter of right and subject to established principles and precedents. ... 4 Fla.Jur. Bail and Recognizance, § 13 (1969)

In capital cases, at common law, bail was usually denied, on the theory that a defendant faced with the death penalty would flee, no matter what promises or security were offered to secure his presence at trial. 3 R.C.L., Bail and Recognizance, § 5, pages 7-8.

The notion that an accused had a right to bail was introduced when most of the states enacted constitutional provisions guaranteeing the right. However, the vast majority of these states, apparently carrying forward the common law practice, made an exception in the case of capital crimes where the proof of guilt was evident and the presumption great. Fountaine v. Mullen, 366 A.2d 1138 (R.I.1976). In 1968 Florida added offenses punishable by life imprisonment to the exception. The exception itself, although enacted in virtually identical language in the various states, has been construed in two different ways. One line of cases has construed the exception to mean that once it is determined that the proof of guilt is evident, then a trial court must deny bail and has no discretion to grant bail regardless of any other circumstances. People v. District Court, 529 P.2d 1335 (Colo.1974). A second line of cases has held that although an accused in a capital case no longer enjoys the right to bail when the proof of guilt is evident, the trial court still retains the discretion to grant bail based upon a consideration of all the circumstances in the case. Fountaine v. Mullen, supra.

Although the case law of this state strongly suggests a construction of the exception leaving the trial court without any discretion to grant bail in capital cases once it is determined that the proof of guilt is evident, we have not been cited and are unable to find a case that has decided this specific issue. Most of the Florida decisions considering the exception have had to do with the measure and burden of proof on the issue of whether the proof of guilt is evident. In Florida, the burden is on the accused to prove that the proof of guilt is not evident. State ex rel. Loper v. Stack, supra. But see James v. State, 241 So.2d 383 (Fla.1970) and Primm v. State, 293 So.2d 725 (Fla. 2d DCA 1974). And the measure of proof in order to sustain a denial of the right to bail has been said to be greater than beyond a reasonable doubt. Russell v. State, 71 Fla. 236, 71 So. 27 (1916). Also see 4 Fla.Jur. Bail and Recognizance, §§ 14 and 15 (1969) and cases cited therein.

It is our conclusion, based upon the historical development of the right to bail and our perception of the intent of the authors of the constitution, that a trial judge retains discretion to grant bail, even in capital cases where the proof of guilt is evident. First, we note that the trial court had such discretion in capital cases at common law even though the discretion was rarely exercised in favor of the accused when the proof was evident. The constitutional provision, Section 14, Article I, is actually a grant of additional rights since no right to bail existed at common law. We cannot believe that it was intended, in a provision which grants additional rights, that another right be taken away, namely the right to have a trial court exercise discretion in deciding whether to grant bail. Rather, by granting a new right to bail in most cases, we believe it was intended to leave the court with discretion to deny bail in those cases not granted the right, namely capital crimes where the proof is evident. Indeed, the authority to deny bail is the distinguishing factor between bail as a matter of right and discretionary bail. When bail is a matter of right a court must grant bail, although the terms thereof are discretionary. But when bail is discretionary a court may deny bail. It is our conclusion that it is this authority to deny bail that the authors of the constitution intended to leave in the trial court in capital cases when the proof of guilt is evident. Just as at common law, where there was no right to bail, the trial court was left with discretion to decide the issue upon a consideration of all of the circumstances. In this regard we agree with the Supreme Court of Rhode Island which reached the same conclusion and stated:

As a part of the Declaration of Rights in the Rhode Island Constitution, we believe art. 1, § 9 was intended to expand the bail rights enjoyed by defendants at common law. We believe it would be highly dubious to treat a provision that was enacted as a guarantee of rights in such a way as to retract rights previously enjoyed by defendants, absent clear evidence that the framers intended that result. Fountaine v. Mullen, 366 A.2d 1138, 1144 (R.I.1976).

Arthur also contends that a contrary interpretation of these bail provisions would result in the abridgement of his federal constitutional rights. In support of this contention he cites the case of Escandar v. Ferguson, 441 F.Supp. 53 (S.D.Fla.1977) which held that Section 14, Article I, if interpreted in such a way as to leave the trial court with no discretion to grant bail in life felony cases where the proof is evident, would be violative of the equal protection and due process provisions of the federal constitution. The federal court further stated:

If the constitutional provision and rule of procedure are interpreted as giving the trial court discretion to grant bond in life felony cases where the proof of guilt is evident and the presumption thereof great, then they are constitutional. (Id. at 57)

In Escandar it was concluded that the accused’s right to a presumption of innocence, right to prepare a defense and the right to be free of punishment before conviction would all be substantially abridged if no discretion was allowed. Addressing the issue of equal protection, the federal court pointed out that under current Florida practice bail could be denied an accused before trial, when he was presumed innocent, and yet bail could be granted a similar offender on appeal, after the presumption of innocence was gone. Hedden v. State, 275 So.2d 52 (Fla. 2d DCA 1973). It was further noted that an offender sentenced for multiple convictions of lesser offenses may actually serve more time in prison than an offender facing a life sentence and yet the potential multiple offender would be entitled to bail and the potential life termer not. Escandar concluded that the only valid purpose of the Florida constitutional provision was to secure the accused’s appearance; and that purpose could be accomplished without interfering with the accused’s constitutional rights, only by allowing a court to exercise discretion in granting bail based upon a consideration of all relevant evidence, not just proof of guilt. Our construction of the provisions of Section 14 is in accord with the holding in Escandar.

As a result of the ruling in Escandar we have closely examined the constitutional implications of the Florida bail procedure in capital cases. While we have previously recognized that the burden of proof is upon the accused to demonstrate that the proof of guilt is not evident we feel that such procedure may itself be subject to similar constitutional attacks as were made in Es-candar. We also note that while the Florida Supreme Court has recognized that burden rather clearly in such decisions as Russell v. State, supra, other decisions seem to imply that the state has such burden. For instance in James v. State, supra, Justice Adkins, in speaking for the court, stated:

At a hearing on the question of right to bail, it was necessary that the State produce evidence indicating great presumption of guilt. In this case, the evidence produced was that of an eye-witness who had testified at preliminary hearing and had been subjected to cross and recross examination. (Id. at 383)

Also see Primm v. State, supra, and State v. Thursby, 184 So.2d 505 (Fla. 1st DCA 1961). In effect, for purposes of bail, the accused in a capital case is presumed guilty and must carry the burden of demonstrating that the proof of his guilt is not evident. Yet, it has been said that the measure of proof of guilt in such a situation must be greater than beyond a reasonable doubt. We can well understand the difficulty that faces a trial court in attempting to reconcile these two principles. Under our decision today the issue of whether the proof is evident will no longer be the sole issue determinative of whether bail may be granted, so the effect of placing the burden of proof on the accused as to this issue will be considerably lessened.

Now we must determine whether the trial court’s denial of bail to Arthur is in accordance with our conclusions. In the order denying bail the trial court, after noting that no evidence as to proof of guilt was offered, concluded:

Nevertheless, the Court heard sworn testimony from the defendant regarding relevant bail considerations and found that the defendant has no substantial ties to the community and is a substantial bail risk considering the number and gravity of the charges, potential sentences and the summary of the State’s allegations which were not disputed. See State ex rel. Smith v. Untreiner, 246 So.2d 158 (1 DCA 1971).
Therefore, defendant’s Motion to Set Bail is denied.

Our review of the record reveals that the court received all evidence sought to be presented by Arthur, and upon a consideration of that evidence and the gravity of the offense charged, denied bail. Neither Es-candar or our decision stands for the proposition that a defendant has a right to bail in capital and life felony cases. Rather, the trial court has discretion, based upon the circumstances of each case, to grant or deny bail. The record before this court supports the trial court’s conclusion that Arthur has no substantial ties to the community and would be a substantial bail risk. Based upon the record, including the gravity of the charges pending, we can find no abuse of discretion in the denial of bail under the totality of circumstances in this case.

While our ruling today appears to be the first to recognize the existence of discretionary authority in the trial court’s determination of bail in capital and life felony cases, we do not anticipate a dramatic change in practice. By the provisions of Section 14, the framers of our Constitution did not intend to grant bail as a matter of right in capital and life felony cases where the proof is clear. By singling out such cases it is obvious that courts were being granted the authority to deny bail in those cases whereas that authority was withheld as to all other cases. Furthermore, while we are recognizing the existence of discretion in the trial courts, it is clear that bail should not be routinely granted in such cases, but rather a heavy burden should be placed upon the defendant to clearly demonstrate that he is entitled to bail despite the gravity of the offense and the nature of the punishment he faces. In this court’s view there is still logic in the underlying premise of the original constitutional exception that one charged in a capital case and facing a possible death penalty, where the proof is clear, is more likely to flee than to submit himself for trial. And while that reasoning is not as strong in a life felony case it is still a valid and important factor to be considered in determining whether bail should be denied.

The order denying bail is approved and the petition for writ of habeas corpus is denied.

DOWNEY, C. J., and DAUKSCH, J., concur.

ON PETITION FOR REHEARING

PER CURIAM.

The respondents have filed a petition for rehearing and a motion for certification. The petition for rehearing is denied. However, the motion for certification is granted, and the following questions are hereby certified to the Florida Supreme Court as questions of great public interest passed upon by this court’s decision of October 6, 1978:

1. Does a trial court have discretion to grant bail to a defendant who is charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident and the presumption great?
2. Does the accused or the state, in a capital case or a case involving life imprisonment where the accused is seeking to be admitted to bail, have the burden of proof on the issue of whether the proof of guilt is evident and the presumption great?

DOWNEY, C. J., and ANSTEAD, J., concur.

DAUKSCH, J., concurs in part and dissents in part with opinion.

DAUKSCH, Judge,

concurring in part and dissenting in part.

While I concur in the denial of the petition for rehearing I dissent in the decision to certify the matter to our Supreme Court. If there is a conflict between our decision and others, and respondent urges there is a conflict, then our Supreme Court can grant certiorari and resolve the conflict. Article V, Section 3, Florida Constitution. I hold the position that a question should be certified to our Supreme Court only when there is a great need for an early resolution of a problem which only our Supreme Court can resolve adequately. The matter here is of no greater public interest than many we decide and while I recognize some Federal District Courts have taken interest in the question we considered here, I still do not perceive such a great public interest to require our certifying the matter to our Supreme Court. The responsibility is ours and should be ours finally and unless a conflict truly exists the matter should come to a rest. Again, if a conflict exists, and our Supreme Court deems it necessary to resolve it, then that procedure is available under the same Constitutional provision cited above.


source: Caselaw Access Project

author: DOWNEY, Chief Judge. PER CURIAM.

license: Public Domain

text:
    ROGER DEAN ENTERPRISES, INC., Petitioner, v. The DEPARTMENT OF REVENUE of the State of Florida, Respondent.
    No. 77-1893.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 1978.
    Opinion Modified On Rehearing Dec. 27, 1978.

      David S. Meisel of Rogers & Meisel, Palm Beach, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and E. Wilson Crump, II, Asst. Atty. Gen., Tallahassee, for respondent.
   DOWNEY, Chief Judge.

By Petition for Writ of Certiorari we have for review an order constituting final agency action of the State Department of Revenue upholding the assessment of delinquent corporate income taxes against petitioner for the years 1972-1973.

The parties have stipulated as to the facts:

“Petitioner is a West Virginia corporation, organized under the laws of that state on January 4, 1958. Prior to June 1, 1962, it operated an automobile dealership in Huntington, West Virginia. On June 1, 1962, it exchanged the assets of its automobile dealership for fifty (50%) percent of the capital stock of Dutch Miller Chevrolet, Inc., a West Virginia corporation organized to succeed to the automobile dealership formerly operated by the Petitioner. Prior to this, in 1961, the Petitioner had acquired one hundred (100%) percent of the capital stock in Palm Beach Motors (the name of which was changed on August 10,1961 to Roger Dean Chevrolet, Inc.). Roger Dean Chevrolet, Inc. is a wholly owned subsidiary of the Petitioner which operates on property owned by the Petitioner. The years involved herein are the fiscal years of the Petitioner ended December 31, 1972 and 1973, during which years the Petitioner’s principal income (except for the gain involved herein) consisted of rents received from Roger Dean Chevrolet, Inc. Petitioner and its subsidiary filed consolidated returns for the years involved herein. During the fiscal year ended December 31, 1972, Petitioner sold its stock in Dutch Miller Chevrolet, Inc. to an unrelated third party for a gain determined by the Respondent to be in the amount of $349,217.00, which, although the sale took place out of the State of Florida, the Respondent has determined to be taxable under the Florida Income Tax Code (Chapter 220 of the Florida Statutes).
“In the fiscal years ended December 31, 1972 and 1973, Petitioner included in Florida taxable income the amounts of $76.00 and $6,245.00, respectively, from the sale of property on April 23, 1971, such gain being reported for Federal income tax purposes on the installment method under Section 453 of the Internal Revenue Code of 1954.
“Roger H. Dean, individually or by attribution during the years involved herein, was the owner of one hundred (100%) percent of the stock of Roger Dean Enterprises, Inc. and seventy-five (75%) percent of the stock of Florida Chrysler-Plymouth, Inc. The remaining twenty-five (25%) percent of Florida Chrysler-Plymouth, Inc. was owned by Robert S. Cuillo, an unrelated person. The Respondent disallowed the $5,000.00 exemption to the Petitioner in computing its Florida corporate income tax for each of the years in question on the theory that the two corporations were members of a controlled group of corporations, as defined in Section 1563, of the Internal Revenue Code of 1954.
“By letter of April 13, 1976, the Respondent advised Petitioner of its proposed deficiencies for the fiscal years ended December 31, 1972 and 1973, in the net respective amounts of $19,086.25 and $1,086.79.”

Petitioner contends the Department erred in upholding the tax assessment in three respects:

(1) In holding that a gain from the sale of stock in a foreign corporation having no contacts with Florida is taxable under the Florida Corporate Income Tax Law.
(2) By imposing the Florida Corporate Income tax on gains realized prior to the amendment to the Florida Constitution which first permitted a corporate income tax.
(3) In finding that petitioner was a “member of a controlled group of corporations” within the meaning of Section 1563 of the Internal Revenue Code, which resulted in a denial to petitioner of the $5000 exception provided by the Florida Corporate Income Tax Law.

In support of its first designation of error, petitioner suggests that Florida may not impose corporate income taxes on corporate gains derived from transactions which take place outside the State of Florida and which involve a non-resident corporation where the non-resident corporation has no contacts with Florida. Additionally, petitioner contends that in any event it was entitled to be afforded the relief provided by Section 214.73, Florida Statutes (1973), which authorizes other methods of apportionment when the three factor formula does not fairly represent the extent of the taxpayers tax base attributable to Florida.

A taxpayer’s adjusted federal income forms the tax base upon which the Florida Corporate Income Tax operates. The amount of the Florida corporate tax is the taxpayer’s adjusted federal income for the year in question which is apportioned to Florida. The apportionment of the taxpayer’s adjusted federal income tax is accomplished by utilization of a three factor formula: a property factor, a sales factor and a payroll factor. Therefore, Florida’s Corporate Income Tax Code is based upon the apportionment theory. Under this theory the taxpayer’s tax base includes all of its adjusted federal income for the period in question regardless of where that income is produced. There is no elimination from the tax base of income produced by a foreign corporation in another jurisdiction. The apportionment factors eliminate the essential unfairness of taxing income in the taxing jurisdiction which is earned elsewhere.

Because Florida is an apportionment state, there is no error in including the installment payments on the Dutch Miller Chevrolet Inc., stock in the tax base for 1972 and 1973, although neither the transaction nor the Dutch Miller Agency had any real contacts with Florida.

Furthermore, petitioner contends in its brief that “[t]he ordinary scheme of apportionment does not fairly represent the extent of petitioner’s Florida tax base under the facts of this case, and under Section 214.73 F.S. an equitable apportionment would result only if the out-of-state sale were excluded from taxation in Florida.” However, the exclusion of that gain would require the Department to violate the statute which requires that the gain (if includa-ble for federal income tax purposes) be included in the petitioner’s tax base for determination of the Florida Corporate Income Tax. As the Supreme Court of Vermont said in a similar factual situation in Hoosier Engineering Company v. Shea, 124 Vt. 341, 205 A.2d 821 (1964):

“It is not the application of the factor formula which creates the result complained of by plaintiff. Rather, it is the inclusion of the capital gain item as an integral part of plaintiff’s net income. Subsection (b) does not apply to the facts presented by the record in this case. There is no area here for the use of discretion by the commissioner and he has no statutory authority to exclude capital gains or any other item of net income based on the federal code.” Id. at 824.

The burden is upon petitioner to demonstrate error in the methodology used by the Department in apportioning the petitioner’s adjusted federal income and the petitioner has not demonstrated such error.

Next it is argued that, since the sale of the Dutch Miller stock pre-dated the amendment to the Florida Constitution authorizing corporate income tax, it should not be subject to such tax even though certain installment payments of the sales price were paid during a tax year to which the corporate income tax was applicable. The Legislature specifically provided that the taxpayer has the option to report a gain on the installment basis just as he could do for Federal income tax purposes. It was not Legislative oversight that this method of reporting would cause installments paid after January 1, 1972, on sales which took place prior to January 1, 1972, to be taxed under the new Corporate Income Tax Code. Sensing the inequities involved in such taxation, the Legislature provided that the tax on older transactions would be imposed at a reduced percentage.

We conclude that the Legislature intended the new Corporate Income Tax to apply to installment payments received by the taxpayer after January 1, 1972, but produced as a result of a transaction prior to January 1, 1972; otherwise, the Legislature would not have enacted Section 220.-13(l)(e). We do not believe the explanation of legislative intent contained in Section 220.02(4) conflicts with Section 220.13(l)(c), but if it does, the latter section being located later in the statutory scheme and being more specific, would control.

Petitioner contends it is unconstitutional to tax said installments under the circumstances of this case. This is certainly an arguable position; however, we have considered the authorities cited by petitioner and find them inapposite. On the contrary, we believe the option afforded petitioner of reporting under the accrual method of accounting or reporting on the installment basis enables the taxation of these installments to pass constitutional muster.

We have not overlooked S.R.G. Corporation v. Dept. of Rev. of St. of Fla., 365 So.2d 687 (1978) and Clearwater Federal Savings & Loan Association v. Department of Revenue of the State of Florida, 350 So.2d 1134 (Fla. 2nd DCA 1977). However, we do not believe that those cases control the decision here.

Finally, since the Department found petitioner to be a member of a “controlled group of corporations” it refused to allow petitioner the $5000 exemption allowed by Section 220.14(1), Florida Statutes (1973). Subsection (4) of that section provides:

“Notwithstanding any other provisions of this Code, not more than one exemption under this section shall be allowed to the Florida members of a controlled group of corporations, as defined in section 1563 of the Internal Revenue Code with respect to taxable years ending on or after December 31, 1970, filing separate returns under this Code.”

As indicated in the factual recitation above, Roger H. Dean owns 100% of the stock in petitioner and 75% of the stock in Florida Chrysler-Plymouth Inc. The remaining 25%. of Florida-Chrysler is owned by Robert S. Cuillo, an unrelated person. Section 1563 of the Internal Revenue Code defines “controlled group of corporations” as follows:

“SEC. 1563. DEFINITIONS AND SPECIAL RULES.
“(a) CONTROLLED GROUP OF CORPORATIONS. — For purposes of this part, the term ‘controlled group of corporations’ means any group of—
******
“(2) BROTHER-SISTER CONTROLLED GROUP. — Two or more corporations if 5 or fewer persons who are individuals, estates, or trusts own (within the meaning of subsection (d)(2)) stock possessing-—
“(A) at least 80 percent of the total combined voting power of all classes of stock entitled to vote or at least 80 percent of the total value of shares of all classes of the stock of each corporation, and
“(B) more than 50 percent of the total combined voting power of all classes of stock entitled to vote or more than 50 percent of the total value of shares of all classes of the stock of each corporation, taking into account the stock ownership of each such person only to the extent such stock ownership is identical with respect to each such corporation.”

Petitioner concedes that under the facts of the case the requirements of Section 1563(a)(2)(B) are satisfied, but it contends that subsection (a)(2)(A) is not satisfied because Cuillo, the 25% stockholder in Florida Chrysler-Plymouth Inc., is not also a stockholder in petitioner. Petitioner’s authority for that construction of the Internal Revenue Code is Fairfax Auto Parts of Northern Virginia, Inc. v. Commissioner of Internal Revenue, 65 T.C. 798 (1976), a case with very similar facts. However, that case was reversed in Fairfax Auto Parts of Northern Virginia, Inc. v. Commissioner of Internal Revenue, 548 F.2d 501 (4th Cir. 1977), wherein the Circuit Court of Appeals rejected petitioner’s contention and we think rightly so. Under the facts of this case Roger H. Dean and Robert S. Cuillo are fewer than 5 persons who own at least 80 percent of the total value of shares of all classes of the stock of each corporation.

In view of the foregoing it appears to us that the final agency order being reviewed is free from reversible error.

CERTIORARI DENIED.

ANSTEAD and DAUKSCH, JJ., concur.

ON PETITION FOR REHEARING

PER CURIAM.

By petition for rehearing petitioner points out that our Opinion, filed October 11, 1978, contains several factual errors. The footnote on page 2, and the word “installment” used in line 13, page 4, are incorrect. Also petitioner does not contend that the sale of Dutch Miller stock pre-dated the amendment to the Florida Constitution authorizing a corporate income tax. The sale which pre-dated the corporate income tax is the sale of other property.

Accordingly, the petition for rehearing is granted and the footnote on page 2 is deleted. The first full paragraph on page 4 is deleted and the following is to be inserted in its place:

“Because Florida is an apportionment state, there is no error in including the gain on the Dutch Miller Chevrolet Inc. stock in Petitioner’s tax base, although neither the transaction nor the Dutch Miller Agency had any real contacts with Florida.”

In addition the first sentence in the first full paragraph on page 5 is deleted and the following is to be inserted in its place:

“Next, it is argued that, since the sale of property referred to in Petitioner’s Point II pre-dated the amendment to the Florida Constitution authorizing corporate income tax, it should not be subject to such tax even though certain installment payments of the sales price were paid during a tax year to which the corporate income tax was applicable.”

As modified the opinion filed October 11, 1978, is confirmed.

Since the questions involved appear to us to be of great public interest, we certify the following two questions to the Supreme Court of Florida:

1. Is the gain from an out of state sale of stock held by a foreign corporation doing business in Florida taxable under the Florida corporate income tax code.
2. Is it constitutional for the Florida corporate income tax to be imposed on a gain from property sold prior to the amendment of the Florida Constitution permitting such tax when said gain is reported on the installment basis in tax years subsequent to the passage of the amendment.

DOWNEY, C. J., and ANSTEAD and DAUKSCH, JJ., concur.

      . The stipulation of facts submitted by the parties has facilitated the appellate presentation of this case and we commend the general use of such stipulations to the Bar.

      . This appears to be a typographical error as the briefs and record make it otherwise clear that the sale date was April 1971.

      . Section 220.12(1), Florida Statutes (1973).

      . Sections 220.15 and 214.71, Florida Statutes (1973).

      . England, “Florida Corporate Income Taxation —Background, Scope and Analysis,” Florida State University Law Review (1972), p. 13.

      . Section 220.13(l)(c) (1973); England, “Florida Corporate Income Taxation — Background, Scope and Analysis,” Florida State University Law Review, pp. 18 and 19.

      . See Ferro Metal & Chemical Corp., et al. v. Department of Revenue of the State of Florida, 365 So.2d 419, Third District Court of Appeal (1978).

      . England, “Florida Corporate Income Taxation”, supra, note 4.


author: PER CURIAM.

text:
    Patrick STOCKTON, Appellant, v. STATE of Florida, Appellee.
    No. JJ-38.
    District Court of Appeal of Florida, First District.
    Oct. 11, 1978.

      Timothy D. Harley of Williams, Gibson & Harley, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellant seeks review of his conviction for receiving stolen property, Section 812.-031, Florida Statutes (1975), asserting there was insufficient evidence to show his knowledge of the stolen character of the property. We agree and reverse. The evidence against the appellant was entirely circumstantial and was insufficient to exclude every reasonable hypothesis of innocence. Accordingly, appellant’s conviction is REVERSED with directions that appellant be DISCHARGED.

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


text:
    Donald T. WEST, Petitioner, v. STATE of Florida, DEPARTMENT OF CRIMINAL LAW ENFORCEMENT, Respondent.
    No. II-315.
    District Court of Appeal of Florida, First District.
    Oct. 16, 1978.

      Robert M. Ervin and E. C. Deeno Kitchen of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen., Douglas C. Kearney and Martin S. Friedman, Asst. At-tys. Gen., for respondent.
   PER CURIAM.

The essential issue presented by this case is whether petitioner was entitled to a hearing prior to discharge from his position as a special agent.

Petitioner was employed by the Department of Criminal Law Enforcement (hereinafter Department) continuously from 1968 until September, 1977. In July, 1977, he received a letter of suspension from Commissioner William A. Troelstrup charging him with the following:

“That during the period October 1, 1974 to January 21, 1977, while serving as a Special Agent of the Florida Department of Criminal Law Enforcement assigned to the Fort Walton Beach Field Office, Fort Walton Beach, Florida, you did wilfully make nonconsensual recordings of wire communications in violation of General Orders 3 and 12 of this Department and, more particularly, in violation of section 934.03, F.S.
* * * * * *
“That during the period of July 1, 1976 to the present, while engaged in a ‘storefront’ stolen property investigation and in your official capacity as a sworn Special Agent of the Department, you capitalized upon confidential insider information as to the status of property as stolen or not stolen and procured a wristwatch which had not been stolen for your own personal gain or benefit in violation of subsection 112.313(8), F.S. * * * ”

Petitioner requested a hearing and asked that he be advised of the particulars of the wrongful acts allegedly committed by him. In another letter, he requested a Complaint Review Board be established for the purpose of hearing and determining the issues existing between him and the Department as raised by the allegations in the letter of suspension. The Department rejected his request for a hearing and instead invited him to a private informal conference with Commissioner Troelstrup.

At that meeting no evidence was presented against petitioner; he was denied an opportunity to confront, cross-examine or review any witnesses or evidence against him, and the Department refused to disclose to him the particulars of any alleged non-consensual recordings of wire communications made by him. The Department contends that no details were furnished because there was then in progress a criminal investigation concerning the charge of illegally recording telephone calls. West did offer at that meeting an explanation of the charge relating to the watch.

Three weeks later the Department terminated petitioner as of September 17, 1977, relying on the first charge but withdrawing the second charge concerning the watch. Further efforts to obtain a hearing were denied. Petitioner thereupon sought relief in this court.

Petitioner contends that the provisions of F.S. 112.532 require that law enforcement officers be notified of the reason for their suspension and/or termination and be afforded a hearing prior to the effective date of such action. He further contends that under subsection 2 of that statute, he is entitled to a hearing before a Complaint Review Board. The Department admits that F.S. 112.532 is applicable but claims that the request for a hearing under that statute was untimely in that it was not made during the time that petitioner was “under investigation and subject to interrogation by members of his agency.” Further, the Department argues that F.S. 112.-532(2) is invalid in that it does not recite the authority and procedures for a Complaint Review Board. We do not read the statute so narrowly. West was clearly entitled to the procedural protection of the statute. The record reveals that the request was timely and no valid reason has been proffered for refusal. As to the authority and procedures of the Complaint Review Board provided by F.S. 112.532(2) it is apparent that hearings before the board must be conducted in such manner as to afford constitutional due process of law.

Aside from the right of hearing afforded under the provisions of F.S. 112.532, petitioner urges that the right of due process requires that a hearing be allowed upon request when a public employee is terminated from his position under public allegations which would tend to damage his reputation, citing Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) and Robison v. Wichita Falls & North Texas Community Action Corporation, 507 F.2d 245 (5th Cir. 1975). He concedes that the recent case of Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976) has been characterized as a retreat from the doctrines of the Roth and Robison decisions, but he contends that there has been no retreat from that aspect of those decisions which compels a hearing when the termination is under such circumstances as to be accompanied by public statements by the discharging agency which would tend to damage the employee’s reputation. The Department counters with the contention that the record before us reveals no disparaging public statements. That very contention demonstrates the necessity for the requested hearing. Without a hearing an aggrieved party has only a limited opportunity for the building of a record. However, the petitioner did supplement the record with copies of numerous media articles which we find clearly sufficient to invoke the Roth doctrine. We conclude that the teachings of the Roth and Robison opinions, even in the light of the Bishop decision, required under the circumstances of this case that West have been afforded a hearing.

Finally, petitioner relies upon a general order of the Florida Department of Criminal Law Enforcement, entitled General Order No. 9 which, petitioner contends, afforded him a right to a hearing. Although both parties referred to that order during oral argument before the court we find that it has not been made a part of the record before us. In any event, it can have no affect upon our decision because, as above recited, we find that both F.S. 112.532 and the “Roth doctrine” entitled petitioner to the relief sought, a hearing.

Petitioner has filed a motion for attorney’s fees pursuant to Chapter 77-453, Laws of Florida. We do not deem this case appropriate for the imposition of attorney’s fees under the authority of that statute. The petition for attorney’s fees is therefore denied.

The petition for review is granted. We remand to the Department of Criminal Law Enforcement for further proceedings consistent with the views herein expressed.

IT IS SO ORDERED.

McCORD, C. J., and BOYER and MILLS, JJ., concur.


text:
    C. Richard SHAMEL, Jr., Personal Representative of Dorothy M. Bergen, Deceased, Appellant, v. Al J. SCHECHTER, Trustee, Appellee.
    No. 77-638.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 1978.

      Joseph A. Fitzsimmons, Fort Lauderdale, for appellant.
    Maurice M. Garcia, of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P. A., Hollywood, for appellee.
   PER CURIAM.

This appeal questions the imposition of a lien on appellant’s real property. Before trial, the parties stipulated that the non-jury trial was to involve only one confined factual issue. This sole factual issue was tried without objection. The trial court resolved the factual dispute contrary to appellant’s position.

On appeal appellant attacks the court’s factual finding and also raises legal arguments. We find the factual finding by the court to be supported by the evidence, and final judgment is affirmed in this respect. The legal issues argued on this appeal were not tried or ruled upon by the trial court and cannot now be considered on appeal. The judgment below is, therefore, affirmed.

DOWNEY, C. J., and CROSS and BERA-NEK, JJ., concur.


text:
    Jesse James WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. KK-153.
    District Court of Appeal of Florida, First District.
    Nov. 2, 1978.
    Douglas L. Stowell, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appeal from a denial of a motion to vacate a judgment and sentence for robbery, pursuant to Rule 3.850, Fla.R.Crim.P. Appellant contends that there was not a proper determination of the voluntariness of an inculpatory statement which was admitted at trial.

This issue could have been raised on direct appeal and, thus, cannot be raised on the motion to vacate or set aside a judgment and conviction. Von Eberstein v. State, 270 So.2d 444 (Fla. 1st DCA 1972). Accordingly, the order of the trial court is

AFFIRMED.

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


text:
    LOXAHATCHEE RIVER ENVIRONMENTAL CONTROL DISTRICT, Appellant, v. GUY VILLA & SONS, INC., a Foreign Corporation authorized to do business in Florida, et al., Appellees.
    Nos. 77-1061 and 78-1036.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 1978.
    Supplemental Opinion Feb. 28, 1979.
    William C. Owen, Jr. of Cone, Owen, Wagner, Nugent, Johnson & McCeown, Te-questa, for appellant.
    Richard K. Rosenberg, Hawthorn, N. J., and John P. Fitzgerald of Ryan, Ryan & Fitzgerald, North Palm Beach, for appel-lees.
   DOWNEY, Chief Judge.

As a result of a contract between appellant and appellee for the construction of various waste water sewage facilities, differences arose and the parties agreed to submit some of those differences to arbitration pursuant to Chapter 682, Florida Statutes (1975).

At the close of the hearings the arbitrators called for a submission of all costs incurred by the parties, including attorney’s fees. Both parties submitted their costs and claims for attorney’s fees and the ultimate award made by the arbitrators included an award of $18,500 attorney’s fees for appellee. Immediately after receiving a copy of the award appellant moved to vacate or correct the award by elimination of the provision for attorney’s fees. That motion was unsuccessful and the circuit court eventually entered a judgment confirming the award and this plenary appeal ensued.

While the aforementioned appeal was pending, appellee moved the lower court for an order directing issuance of a writ of execution on that portion of the judgment “from which no appeal was perfected.” This motion was granted and the trial court directed the Clerk to issue an execution for $202,458.00, together with interest from May 6, 1977. An interlocutory appeal was perfected to review that order.

Adverting now to the plenary appeal, the construction contracts between the parties contain no provision for attorney’s fees which would control the questions presented here. However, the parties did enter into a stipulation which provided that “the arbitrators are further empowered to award such other costs and fees as is provided under the contract between the parties.” Article 40 of the Contract, providing for arbitration, included a provision that “[i]f they deem the case demands it, the arbitrators are authorized to award to the party whose contention is sustained any sums they shall consider proper for the time, expense and trouble incident to the arbitration.”

Appellant contends that the judgment of confirmation should be reversed because the arbitrators had no power even by stipulation to adjudicate entitlement to or amount of attorney’s fees. On the other hand, ap-pellees argue that, even if the arbitrators did not have the authority to determine attorney’s fees in the first instance, if the parties stipulate that a fee be awarded by the arbitrators, they may do so.

Appellant relies heavily upon the case of Tassinari v. Loyer, 189 So.2d 651 (Fla. 2nd DCA 1966). There the parties to a law suit, after the case was at issue, agreed to submission of “ ‘the matters in dispute as set forth in plaintiff’s amended complaint and defendant’s answer and counterclaim there[to] be arbitrated under the provisions of the Florida Arbitration Code . . . One of the issues raised by the pleadings was the question of attorney’s fees; however, the arbitrator denied the plaintiff an award of attorney’s fees. On appeal from the judgment confirming the award, the court held:

“As to attorney fees, while it is true that the right to attorney fees was one of the disputed subjects as evidenced by the pleadings and that all the matters in dispute were submitted to arbitration, nevertheless, the arbitrator could not decide matters outside of his authority. The matters were submitted to him in accordance with the Florida Arbitration Code and said code includes Fla.Stat., Sec. 57.20, F.S.A. from which his authority to award costs and expenses derives.” 189 So.2d at 653.

In making it clear that attorney’s fees were not to be the subject of arbitrator’s consideration the court stated further:

“There is no statutory authorization for attorney fees in arbitration proceedings. The only way that they might be recovered would be by agreement of the parties. Hence, the purpose for including this phrase ‘not including counsel fees [in Section 57.20, now Section 682.11, Florida Statutes (1975)] is to modify and explain ‘expenses,’ the word immediately preceding the subject phrase, so as to be certain that counsel fees (when awardable) remain outside of the perimeter of the arbitrator’s view.” 189 So.2d at 653.

The foregoing quote indicates that the parties to an arbitration proceeding can agree to an award of attorney’s fees by contract, but even then the award is made not by the arbitrators but by the court upon confirmation of the arbitration award.

In Kingswood Management Corporation v. Salzman, 272 App.Div. 328, 70 N.Y.S.2d 692 (1947), the court considered an award of attorney’s fees which had been submitted by agreement to arbitration. The main dispute involved treble damages between tenant and landlord under the federal Emergency Price Control Act. The Act authorized treble damages and attorney’s fees to a tenant for overcharges in rent. However, the Act specified that the attorney’s fees were to be determined “by the court.” The Appellate Division pointed out that the Act which created the right to treble damages also provided for the award of attorney’s fees and limited that determination to the courts — so even though the parties agreed to the submission to arbitration, it was ineffective.

In this case Section 682.02, Florida Statutes (1975), provides for the submission of any controversy to arbitration; but that broad grant of authority is subsequently limited by Section 682.11, wherein the arbitrators are expressly authorized (unless the agreement provides otherwise) to determine the arbitrators’ and umpires’ fees and expenses, “together with other expenses; not including counsel fees . . (Emphasis added.)

As Tassinari, supra, points out, the reason the Legislature saw fit to eliminate attorney’s fees from the subject matter jurisdiction of arbitration is:

“that arbitrators are generally businessmen chosen for their expertise in the particular subject matter of the suit and to exclude from their domain the consideration of what is a reasonable fee for legal services is quite logical.” 189 So.2d at 653.

The proper place to determine the entitlement to and amount of attorney’s fees authorized by statute or contract is in the circuit court upon application for confirmation of the award.

With reference to the interlocutory appeal, the judgment entered in the trial court was for $220,958. It was automatically superceded by appellant, as a public body, filing a notice of appeal. Florida Appellate Rule 5.12. True, that amount of the judgment included various items one of which was the $18,500 awarded for attorney’s fees, but the judgment is a unitary judgment not divisible into parts. The su-persedeas applied to the entire judgment, not to certain parts thereof and the trial court lacked jurisdiction to scissor out certain aspects of the judgment, based upon an examination of the record on appeal and the conclusion that certain aspects of the judgment were not in issue on appeal. Without passing upon the propriety of such a determination in all events, it would appear that if such a conclusion is to be reached, it should be done by application to the appellate court which has jurisdiction over the judgment in question.

In view of the foregoing, the judgment in the plenary appeal and the order in the interlocutory appeal are reversed and the cause is remanded for further proceedings in the Circuit Court relative to the arbitration award and the appellee’s entitlement to attorney’s fees vel non and to the amount of said attorney’s fees if it is determined appellee is entitled to such fees.

REVERSED AND REMANDED, with directions.

CROSS, J., concurs.

BERANEK, J., concurs with result only.

SUPPLEMENTAL OPINION

PER CURIAM.

On January 31,1979, we issued an opinion on petition for rehearing filed by the appel-lee. That opinion is herewith vacated and the appellee’s motion for rehearing is stricken as untimely.

We note that the only issue involved in the plenary appeal decided by the opinion filed November 8, 1978, was the allowance of attorney’s fees so that our reversal on that point should have taken the form of a modification of the judgment, leaving unaffected those parts of the judgment as to which the appellant did not complain. Accordingly the Court sua sponte grants a rehearing in this cause and herewith modifies our opinion filed November 8, 1978, by eliminating the last paragraph thereof and inserting in its place the following:

In view of the foregoing, the judgment in the interlocutory appeal, being Case number 73-1036, is reversed. The judgment in the plenary appeal, being Case number 77-1061, is modified so as to eliminate from the final judgment confirming the arbitrator’s award the allowance of $18,-500 attorney’s fees.
The interlocutory appeal is remanded to the trial court with instructions to vacate the order of March 9, 1978. The plenary appeal is remanded with directions for further proceedings to determine whether appellee is entitled to attorney’s fees and, if so, the amount thereof.

DOWNEY, C. J., and CROSS and BERA-NEK, JJ., concur.

      . The final judgment entered by the circuit court provided that appellee should recover from appellant “the sum of $197,638.00, together with attorney’s fees in the amount of $18,-500.00 plus costs in the amount of $4,820.00, in conformity with the Arbitrator’s Award, for the sum total of $220,958.00 . . .

      . Although appellant assigned additional error, in its brief on the plenary appeal it argued only the propriety of the award of $18,500 attorney’s fees for appellee.


author: ANSTEAD, Judge. MOORE, Judge,

text:
    Cleveland FREEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 77-1949.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 1978.
    Rehearing Denied Jan. 31, 1979.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee and Robert L. Bogen, Asst. Atty. Gen. and Kenneth G. Spillias, Legal Intern, West Palm Beach, for appellee.
   ANSTEAD, Judge.

The appellant, Cleveland Freeman, was convicted of robbery and appeals the trial court’s refusal to instruct the jury on the state’s burden to prove identity, We reverse.

Freeman was charged with the robbery of a photography studio operated by Mr. and Mrs. Louis Dee. Mrs. Dee had never seen Freeman prior to the day of the robbery and was the only witness to identify Freeman as the robber at trial. Mrs. Dee reported that Freeman first entered the studio and gave her a photograph of his wife that he wanted enlarged. He was wearing sunglasses. Freeman had Mr. Dee take his photograph and ordered several copies. He gave Mrs. Dee his correct name and other personal information for her to record and left after agreeing to return the next day with a money deposit. This encounter was described as essentially normal.

Then, according to Mrs. Dee, Freeman returned in two or three minutes and demanded that more photographs ,be taken. She indicated that his appearance had changed.

Q Now at this point, did he look drunk?
A He didn’t look right. He certainly looked altered to me. He looked flushed, sweaty. He staggered. He leaned over the desk to support himself. He looked altered; yes. Altered.
Q Different from the person that had been in there just a few minutes ago?
A Yes.
Q And his face was flushed?
A Yes.
Q His eyes were rolling?
A Yes.
Q He was wobbly?
A Yes, sir.

Freeman was thereafter directed by Mrs. Dee to the back of the studio where Mr. Dee was located. When Mrs. Dee heard moaning, she went to the back where she found Freeman holding her husband. Mr. Dee directed her to give Freeman Mr. Dee’s wallet. She gave Freeman the wallet and he fled. Mrs. Dee then ran outside the studio shouting for help and encountered a group of young black males. Freeman was a young black but not among these youths. Freeman was later identified by Mrs. Dee by use of the photograph taken of him on his first visit.

In her deposition, Mrs. Dee described Freeman as a small man, five feet five or six inches tall and weighing 140 pounds, whereas at trial she conceded that she had been mistaken and that Freeman was actually a much larger man. She also stated that Freeman appeared to be on drugs when he returned and that when he fled he ran right through the rear screen door. Mrs. Dee also testified that her studio was located in a predominantly black neighborhood and that all of her customers were blacks.

Freeman’s only defense was that of mistaken identity. He requested several jury instructions on identity, one of which stated:

I INSTRUCT YOU that the burden is on the State to prove beyond a reasonable doubt, not only that the offense was committed as alleged in the information, but also that the Defendant is the person who committed it. You must be satisfied beyond a reasonable doubt of the accuracy of the identification of the Defendant before you convict him. If the circumstances of the identification are not convincing beyond a reasonable doubt, you must find the Defendant NOT GUILTY.

The prosecutor objected to Freeman’s requested instructions but informed the court that he had no objection to an instruction stating that identity must be proven beyond a reasonable doubt. The trial judge initially agreed to give one of the requested instructions, but later changed his mind and refused to give any identity instructions. During the course of deliberating the jury made several requests, including a request that all of the testimony of Mrs. Dee be read to them. This request was refused upon the objection of defense counsel. The jury ultimately returned a verdict of guilty.

On appeal Freeman relies on a number of federal decisions which require a separate instruction on identity. See e. g. United States v. Hodges, 515 F.2d 650 (7th Cir. 1975). The state counters by contending that the issue of identity was adequately covered by the voluminous instructions given by the court, all of which referred to the defendant. In other words the state contends that a separate instruction was not necessary since it was perfectly obvious to everyone that it was Freeman who must be proven guilty of the crime charged. The state also contends that Freeman’s proposed instructions did not accurately reflect the law and cites the following quotation from the case of Henderson v. State, 94 Fla. 318, 113 So. 689 (Fla.1927):

The identification by the witness need not be positive or certain; it is enough for him to testify that his opinion, belief, or judgment is that accused is the person who he saw commit the crime. (Id. 113 So. at 694)

We do not believe this statement from Henderson applies to a jury instruction on burden of proof. Rather, the court in Henderson was commenting on the admissibility of identification testimony and correctly stated that such testimony need not be absolute or certain to be admissible. And while we agree that most of Freeman’s requested instructions on identity were not proper, we believe the requested instruction quoted, supra, did contain a correct statement of the law.

Neither are we persuaded that the issue of identity was covered in the court’s other instructions. True, only Freeman was on trial and hence he was the only one the court could have been referring to as the defendant throughout the instructions. But the instructions themselves only deal indirectly with the issue of identity and instead concentrate on the required proof of the “essential elements” of the charged offense and all lesser included offenses. It is true that these instructions repeatedly refer to the “defendant”, but while separately setting out in detail a statement as to each necessary ingredient of each offense, they never once mention the critical ingredient of identity. These instructions do an excellent job of covering the subject matter and in some cases would be adequate to cover the issue of identity also. But when identity is virtually the only issue being tried and the state’s case rests on the evidence of a single witness whose testimony is sharply challenged we believe that it is necessary for the jury to have more guidance on that issue than the indirect references to the “defendant” contained in the court’s charge.

In many cases where identity is in issue the defendant claims an alibi. In such cases the Florida Standard Jury Instructions in Criminal Cases, Second Edition, provide for the following charge:

One of the defenses in this case is an alibi; that is to say, that at the time of the alleged crime the defendant was not at the place of the crime and that he was so far away that he could not have been at the place where the crime was committed.
Where an alibi is claimed as a defense, it is not necessary that the alibi be proved beyond a reasonable doubt. It is sufficient as a defense if you have a reasonable doubt as to the presence of the defendant at the scene of the alleged crime. If there is such a reasonable doubt it is your duty to find the defendant not guilty.

Just as the issue of alibi merits a separate instruction, so should identity. For in essence, a defendant is claiming mistaken identity by raising an alibi defense, and his proof of the mistaken identity consists of proof of his presence at another place at the time of the crime. The state’s burden to prove identity is the same where identity is in issue as when alibi is raised as a defense.

We note that the Standard Jury Instructions contain no charge on the issue of identity, and at least one of our sister courts has taken a contrary stand on the necessity of a separate instruction on identity. Cruz v. State, 310 So.2d 360 (Fla. 3d DCA 1975); Yost v. State, 243 So.2d 469 (Fla. 3d DCA 1971). Under these circumstances it is difficult to criticize the trial court’s refusal to instruct on identity. However, we feel that it simply does not make sense to refuse an instruction to the jury on the only issue that was really contested at the trial, while at the same time giving voluminous instructions on numerous issues that were really not in controversy. In an opinion approving the standard jury instructions the Supreme Court stated:

The Court recognizes that the initial determination of the applicable substantive law in each individual case should be made by the trial judge and that it would be inappropriate for the Court at this time to consider the recommended instructions with a view to adjudging that the legal principles in the recommended instructions correctly state the law of Florida. Similarly, the Court recognizes that no approval of these instructions by the Court could relieve the trial judge of his responsibility under the law properly and correctly to charge the jury in each ease as it comes before him.

Our views as to the importance of a separate instruction on identity are in accord with those set out in the case of United States v. Hodge, supra :

This decision which we render today is influenced by many what we believe to be serious considerations relative to the administration of criminal justice. First and foremost, although we realize, on the basis of our careful review of the record herein, that the subject of identification was explored by counsel at appellant’s trial on cross-examination as well as in final argument, and that the court’s instructions to the jury were indeed accurate as to the burden of proof required in criminal cases and concerning the credibility of witnesses, and that the existence of these circumstances has induced some courts to decline to give a detailed charge on eyewitness identification, we are not persuaded to say that the existence of such circumstances necessarily obviates the giving of such an instruction to the jury. Further, we are not completely satisfied that in the instant case the existence of such circumstances served to focus the jury’s attention on the issue of identity. In this regard, we are mindful of what the Second Circuit Court of Appeals stated in [U. S. v.] Evans, supra, 484 F.2d [1178] at 1187, with respect to the trial court’s failure to give a specific charge to the jury on the dangers of eyewitness identification:
There is no question that identification testimony is notably fallible, and the result of it can be, and sometimes has been, ‘the greatest single injustice that can arise out of our system of criminal law,’ Gregory v. United States, 125 U.S.App.D.C. 140, 369 F.2d 185, 190 (1966), namely the conviction of the wrong man through a mistake in identity. The dangers in this area have been well chronicled, and have been the proper subject of careful attention in this and many other courts.
Since it is our goal to guard against the occurrence of such injustice, we are convinced that neither summation of counsel at the close of the evidence, however prolonged or explicit, nor cross-examination as to the matter of identification by defense counsel adequately protects a defendant against the dangers of misidenti-fication which are inherent in eye witness testimony. Nor do we believe that such summation and cross-examination by counsel may substitute for proper instructions to the jury by the court. In cases such as the present, where the issue of identification is paramount, we define proper instructions to include an identification instruction, when it is tendered to the court, in addition to accurate instructions as to burden of proof and the credibility of witnesses. As the District of Columbia Circuit stated in Salley v. United States, 122 U.S.App.D.C. 359, 361, 353 F.2d 897, 899 (1965): It is the obligation of the trial judge “to instruct the jury that if there was a reasonable doubt as to the identification of the defendant as the person who [committed the crime], then the jury should acquit.”

Some of the federal courts have devised lengthy instructions on the issue of identity. See United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 552 (1972). However, we do not believe it is necessary to instruct on the issue of identity beyond informing the jury as to the existence of the issue and the burden of proof of the state to prove the issue. We conclude that an instruction on the issue of identity and the state’s burden of proof thereon should be given in every case where identity is in issue and such an instruction is requested. The trial court should either have given Freeman’s requested instruction quoted, supra, or one similar thereto.

Accordingly, the judgment of conviction is hereby reversed for a new trial in accordance with this opinion.

DAUKSCH, J., concurs.

MOORE, J., dissents, without opinion.

ON PETITION FOR REHEARING

Petition for Rehearing is hereby DENIED.

ANSTEAD and DAUKSCH, JJ., concur.

MOORE, J., dissents, with opinion.

MOORE, Judge,

dissenting:

. I would grant rehearing, withdraw the court’s majority opinion, and affirm the judgment of conviction below.

The majority has determined that whenever identity is in issue in a criminal case and an instruction is requested on the burden of proving identity beyond a reasonable doubt, such an instruction must be given. This is an expansion of our standard jury instructions as approved by the Supreme Court of Florida. In the matter of the use by the trial courts of Standard Jury Instructions in Criminal Cases, 327 So.2d 6 (Fla.1976). I recognize that the Supreme Court did not preclude such expansion in an appropriate case; however, I can see no need for it in the case sub judice.

In charging the jury on the elements of the crime, the burden of proof, and the presumption of innocence, the court made reference to “the” defendant no less than 36 times. There was only one defendant in the courtroom and it is inconceivable to me that the jury did not realize about whom the court was talking or that the jury must find this particular defendant guilty of each and every element of the crime beyond a reasonable doubt. In my opinion the charges as given were complete. It is difficult for me to fault a trial judge who follows the standard jury instructions as approved by our Supreme Court, which instructions are clear, comprehensive and correct. When that is done a conviction based thereon should be affirmed. See, Yost v. State, 243 So.2d 469 (Fla. 3d DCA 1971). See also, State v. Perryman, 49 Ohio St.2d 14, 358 N.E.2d 1040, 1049 (1976).

The failure to give the requested instruction in no way precluded the defense from arguing that the state failed to prove the defendant guilty beyond a reasonable doubt. To the contrary, a review of defense counsel’s opening and closing arguments to the jury reveal that the gist of his argument was that the defendant was not proved guilty beyond a reasonable doubt. This argument was based primarily upon the testimony concerning the identity of the accused as related to the jury by the victim. Where the trial court’s instructions sufficiently conveyed the substance of the appellant’s requested charge it was not error to refuse the requested instruction.

Accordingly, I would affirm the conviction. At most, I would certify the following question to the Supreme Court as one of great public interest:

MUST AN INSTRUCTION ON THE SPECIFIC ISSUE OF IDENTITY AND THE STATE’S BURDEN OF PROOF THEREON BE GIVEN IN EVERY CASE WHERE IDENTITY IS IN ISSUE AND SUCH AN INSTRUCTION IS REQUESTED; AND IF SO, DOES THE FAILURE TO GIVE SUCH AN INSTRUCTION WHEN REQUESTED NECESSARILY CONSTITUTE REVERSIBLE ERROR?

      . We realize that these instructions were required to be given.

      . In the Matter of the use by the trial courts of the Standard Jury Instructions in Criminal Cases, 327 So.2d 6 (Fla.1976).


author: SMITH, Judge.

text:
    Elbert R. SMITH, Appellant, v. Louie L. WAINWRIGHT, Appellee.
    No. KK-78.
    District Court of Appeal of Florida, First District.
    Nov. 21, 1978.
    Rehearing Denied Dec. 29, 1978.
    Thomas A. Daniel, Florida Legal Services, Inc., Gainesville, for appellant.
    Robert L. Shevin, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Elbert Smith’s gain-time earned on a pri- or sentence was revoked by the Department of Corrections upon his conviction for escape. Section 944.28(1), Florida Statutes (1977), provides:

If a prisoner is convicted of escape, or if the clemency or parole granted to him is revoked, the Department of [Corrections] may, without notice or hearing, declare a forfeiture of all gain-time earned and extra gain-time allowed such prisoner, if any, prior to such escape .

Smith appeals from the trial court’s summary denial of his petition for habeas corpus, which alleged that the due process clauses of the United States and Florida Constitutions require that Smith be afforded a hearing by the Department before forfeiture of his gain-time, and that due process also “requires the legislature to specify guidelines and standards for this permissive taking of gain time when an individual is convicted of escape.”

The petition for habeas corpus lacks an allegation that Smith asked for and was denied a hearing, lacks allegations concerning the manner in which the Department exercises its power under the statute, and lacks reliance upon Article II, Section 3, and Article III, Section 1, Florida Constitution. The petition’s general and conclusory allegations are insufficient to raise the potentially significant questions that have been argued. Moreover, if the trial court necessarily passed on the constitutionality of Section 944.28(1), we have some doubt of this court’s jurisdiction of the appeal. Article V, Section 3(b)(1), Florida Constitution.

AFFIRMED.

BOYER, Acting C. J., and MILLS, J., concur.


author: ERVIN, Judge. BOOTH, Judge,

text:
    George Lynn KING, Appellant, v. STATE of Florida, Appellee. Larry Frank MORRIS, Appellant, v. STATE of Florida, Appellee.
    Nos. HH-280, HH-296.
    District Court of Appeal of Florida, First District.
    Dec. 1, 1978.

      Larry G. Turner, Gainesville, for appellant (HH — 280), Daniel T. O’Connell of O’Connell & Hulslander, Gainesville, for appellant (HH-296).
    Robert L. Shevin, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen. (HH-280 and HH-296), for appellee.
   ERVIN, Judge.

King and Morris appeal their convictions for the offense of delivery of marijuana. They argue the lower court erred in denying their motion to suppress the evidence taken from Morris’ home following an alleged illegal entry in violation of Section 901.19(1), Florida Statutes (1975), and without Morris’ voluntary consent. We agree and reverse.

At the hearing on motion to suppress, Dennis Lee Fischer, special agent with the Florida Department of Criminal Law Enforcement, testified that he and other officers, on the evening of December 20, 1976, while working in an undercover capacity, met appellant King in Gainesville, Florida, who advised them he could arrange for them to purchase a large quantity of marijuana from Morris. Later that same evening Fischer went with King to Morris’ home. Morris told them it would be necessary for them to return later that night since he did not have any marijuana available at that time. Upon their return, another undercover agent, Richard Carbonelli, went into Morris’ home with King and saw what appeared to be marijuana inside several trash bags. He then left the house ostensibly to obtain money from Fischer for the purchase of the drugs. Fischer alerted other surveilling officers to be prepared for entry and backed his car into Morris’ driveway. After waiting several minutes, Morris sent King outside to determine the cause of delay and King was promptly arrested. Fischer and two other officers then approached the front door, which had previously been opened, and saw Morris standing beside it. Morris’ explanation at the hearing for his having opened the door was that when King left the house and did not return, he went to the front door in an effort to determine what was detaining him. Upon opening the door, Fischer confronted him, saying, “ ‘Where’s the shit?’ ” Morris immediately responded it was in the bedroom. At the time this conversation took place, Fischer stated he was standing “about a foot inside the front door.” Morris testified that during his initial encounter with Fischer, Fischer and his two companions greeted him with guns drawn and hammers cocked. Fischer testified that he did not remember whether he and the other officers had drawn their weapons prior to entering the house but he did remember that once inside, and while they were approaching the bedroom where the drugs were located, their weapons were out “because we didn’t know who was back there. I don’t remember at what point we drew our weapons.” Fischer’s testimony paralleled Morris’ to the extent that it was only after the officers’ entry into the house that Morris was advised of his rights to an attorney and to refuse the search. Morris was also told that if he refused permission to search, the residence would be secured and an attempt made to obtain a search warrant. Defendant responded that they might as well go back in and obtain the drugs.

Section 901.19(1) provides:

(1) If a peace officer fails to gain admittance after he has announced his authority and purpose in order to make an arrest either by a warrant or when authorized to make an arrest for a felony without a warrant, he may use all necessary and reasonable force to enter any building or property where the person to be arrested is or is reasonably believed to be.

In the last opinion written by Justice Terrell before his death, Benefield v. State, 160 So.2d 706 (Fla.1964), it was held that Section 901.19(1) prohibited an unannounced intrusion into any building even though probable cause existed for the arrest of a person except (1) where the person within was already aware of the officer’s authority and purpose; (2) where the officer is justified in the belief that persons within are in imminent peril of bodily harm; (3) if the officer’s peril would have been increased had he demanded entrance and stated the purpose, or (4) where those within were aware of the presence of someone outside and were then engaged in activities which justified the officer in the belief that an escape or destruction of property was then being attempted.

From our review of the record we find that none of the above exceptions applies. Morris had no reason to know of undercover agent Fischer’s authority prior to the entry. Moreover, agent Carbonelli had previously been inside the house and had no reason to believe there was any person within other than appellants. Neither Morris nor King was seen armed; consequently no reasonable belief existed that the officers’ peril would have increased had they first demanded entrance. Finally there was no reasonable ground for the belief, had the officers delayed their entry a few seconds and announced their authority, that the large quantity of marijuana could have been destroyed during the short amount of time it would have taken for the officers to comply with the statute.

It should be observed that once the officers had obtained entry into Morris’ home following invitation, they could have arrested defendants on the spot since they had probable cause to believe a felony was then being committed, and the statute would have had no applicability. State v. Roman, 309 So.2d 12 (Fla. 4th DCA 1975). Moreover, even though an officer conceals his identity and obtains entry by trick or ruse, there is no violation of Section 901.19 because the entry was peaceably attained. Koptyra v. State, 172 So.2d 628 (Fla. 2d DCA 1965). Here, however, the officers delayed the seizure until after the illegal intrusion. Their reentry into Morris’ home was without invitation. Even Fischer testified that his confrontation with Morris occurred after he was inside the house. While Fischer could not remember with specificity at what point in time he and his fellow officers displayed their weapons — although curiously his recollection of other circumstances relating to the arrest and seizure of the drugs was remarkably detailed — his testimony did not conflict with Morris’, who stated that the officers’ weapons were at the ready and aimed at him during the initial encounter. Consequently there was no testimony presented by the state contradicting Morris’ statement that he was confronted with guns from the very moment of the officers’ entry.

Once a defendant challenges his arrest and search without a warrant, the burden of proving its validity as a predicate for lawful admissions seized in evidence is upon the state. Earman v. State, 265 So.2d 695 (Fla.1972). Moreover such an illegal search does not lose its unconstitutional taint because a defendant consents to an unlawful arrest under circumstances showing that the consent was less than free and voluntary. Id. Here, as in Earman, Morris consented to the search only after the officers illegally entered his home, with guns drawn, and prior to any warnings, obtained from him an admission as to the location of the marijuana. The taint of the prior illegal intrusion was not purged by the officers’ extraction from defendant of the consent to search. Cf. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

We conclude from our review of the evidence that the lower court erred in refusing to suppress the evidence seized. Appellants’ convictions are REVERSED.

MILLS, Acting C. J., concurs.

BOOTH, J., dissenting.

BOOTH, Judge,

dissenting.

I would affirm the convictions. The trial court who heard the conflicting testimony and observed the demeanor of the witnesses was in the best position to evaluate the claim of appellant Morris that he was intimidated and did not voluntarily consent to the search.

      . The opinion continued, “Time and experience will no doubt suggest other exceptions, . . ” 160 So.2d at 710. Another exception was later announced in State v. Clarke, 242 So.2d 791 (Fla. 4th DCA 1970), approved, State v. Kelly, 287 So.2d 13 (Fla.1973), which permitted officers to enter without complying with the statute if they had only a justifiable reason that evidence might be destroyed once they announced their purpose.

      . The facts in Wong Sun were strikingly similar to those in the present case insofar as they applied to defendant Toy. There, federal narcotic agents broke open the door to Toy’s laundry and chased him into the living quarters at the back of the laundry where his wife and child were sleeping in a bedroom. When Toy reached into a night stand drawer, an agent drew his pistol, pulled Toy’s hand out of the drawer and handcuffed him. Toy then informed the agents that another person had been selling narcotics. The court concluded that, from the evidence, the officers’ uninvited entry into Toy’s living quarters was unlawful and that the bedroom arrest which followed was likewise unlawful. As to the admissions made by Toy implicating Johnny Yee, the court held that it could hardly be said that the subsequent declarations resulted from an intervening independent act of a free will. The court concluded that under such circumstances it was unreasonable to infer that Toy’s response was sufficiently an act of free will to purge the primary taint of the unlawful invasion.


author: SMITH, Acting Chief Judge.

text:
    Alney PARRAMORE, Appellant, v. Eudell PARRAMORE, Juanita Parramore, Bernice Mae Gomez, Iris P. Mullen, and the Quincy State Bank, Appellees.
    No. II-11.
    District Court of Appeal of Florida, First District.
    Dec. 7, 1978.

      Guyte P. McCord, III of Spector & Tunni-cliff, Tallahassee, for appellant.
    W. J. Oven, Jr., Tallahassee, and Alton M. Towles of Gregory & Towles, Quincy, for appellees.
   SMITH, Acting Chief Judge.

Appellant Alney Parramore and his brother and sisters, appellees Eudell, Bernice, and Iris, are the four surviving children of Fred Parramore of Gadsden County, who died there in November 1974. Fred Parra-more’s estate was almost entirely in Gadsden County lands, and his plan was to parcel and convey those lands to his children at his death. He implemented that plan by inter vivos deeds purporting to convey life estates to himself and his wife with remainder interests to his children. In May 1963, the deeds were executed and acknowledged, but not delivered to the grantees. Fred placed the deeds with his will in a safe deposit box of a Quincy bank and instructed his children to pick up their deeds at his death. Fred survived his wife, later delivered Alney’s deed to him, and, six months before his death, made another conveyance to Alney, the apparent effect of which was to release Fred’s life estate and merge the fee in Alney. But Fred’s deeds conveying remainder interests to appellees Eudell, Bernice and Iris were never handed over to them during Fred’s lifetime.

Appellant Alney, whose parcel is securely vested in him, urges that the inter vivos deeds of remainder interests to his brother and sisters failed for want of delivery, and that the affected lands pass to all four children equally by the residuary clause of Fred’s will. After a trial in which the decedent’s later years were explored for evidence of his intent, the circuit court held that Fred Parramore’s words and acts accomplished a symbolic and constructive delivery of the deeds during his lifetime, and that the remainder estates were vested in Eudell, Bernice, and Iris before their father’s death. Alney appeals. We affirm.

Delivery is “the life of a deed”; without it no deed is good, though “the intent to deliver is clear and failure to deliver due to accident.” Lance v. Smith, 123 Fla. 461, 468, 167 So. 366, 369 (1936). Yet delivery is not an exact ceremony, to be done invariably in a particular way. The clearest delivery is by “a manual tradition of the prepared deed with accompanying words or circumstances showing an appropriate intent.” 1 R. Boyer, Florida Real Estate Transactions, Section 9.01 at 136 (1977). But a grantor may fully relinquish a deed, signifying a conveyance, otherwise than by placing it in the grantee’s hands. The grantor may hand his deed to a person not the grantee, with directions to deliver it; and, if an intent to relinquish the deed is shown, and the grantor’s directions eventually are carried out, delivery is regarded as having been accomplished even though it cannot be proved absolutely that the grant- or could never have retrieved the deed. Fleming v. Fleming, 352 So.2d 895 (Fla.1st DCA 1977); see also Williams v. Williams, 149 Fla. 454, 6 So.2d 275 (1942); Pratt v. Carns, 80 Fla. 243, 85 So. 681 (1920); Videon v. Cowart, 241 So.2d 434 (Fla.1st DCA 1970), cert. denied, 245 So.2d 88 (Fla.1971); Brown v. Hutch, 156 So.2d 683 (Fla.2d DCA 1963), cert. denied, 162 So.2d 665 (Fla.1964).

As is stated in Smith v. Owens, 91 Fla. 995, 1001 02, 108 So. 891, 893 (1926), the critical issue respecting delivery is whether the grantor’s intent and action released or reserved the locus poenitentiae, the opportunity to change his mind:

Actual manual delivery and change of possession are not always required in order to constitute an effectual delivery. The intention of the grantor is the determining factor. ... In the well-considered case of Gulf Red Cedar Co. v. Crenshaw, 169 Ala. 606, 53 So. 812, the following propositions are announced: No formality or particular words or acts are essential to the delivery of a deed; delivery being a matter of intention, which may be manifested by acts and declarations, and may consist of a transfer of the conveyance without spoken words, or by spoken words without manual act. . , . The test of delivery of a conveyance is whether the grantor intended to reserve to himself the locus poenitentiae, and, if he did, there is no delivery; but if he parts with the control of the deed, or evinces an intention to do so, and to pass it to the grantee, though he may retain the custody or turn it over to another, or place it upon record, the delivery is complete.

In that decision the Supreme Court held that a grantor, intending to deliver a deed “in my last hours,” accomplished that by recording the deed five years before his death, retaining the deed in a locked tin box on his mantlepiece, and giving his housekeeper, on the day of his death, an “unequivocal, final order or direction” to deliver the deed. Though the grantor did not hand the deed to the housekeeper, and the housekeeper did not immediately take it from the box, the court found that the grantor relinquished the deed, effected delivery, and perfected the conveyance during his lifetime:

It was, under the circumstances, equivalent to a manual delivery. The intent to deliver the deed was made plain. An hour later he was dead. And in another hour or so, his son arrived, and the box was delivered to him, and it contained the deed. [91 Fla. at 1000, 108 So. at 893.]

In finding that delivery occurred, the court in Smith v. Owen acknowledged a “presumption of delivery” arising from the grantor’s act of recording the deed some five years before his death; and also noted that the grantor’s retaking the deed “may tend to rebut the presumption.” 91 Fla. at 1004, 108 So. at 894. In this case there was no recordation, and consequently no “presumption;” but here as in Smith v. Owens the critical issue was one of fact.

We believe there is substantial competent evidence to support the trial court’s decision that Fred Parramore, during his life, vested remainder interests in his children by conduct recognizable as delivery of the deeds. We need not rely on the troublesome test suggested by disjunctives in the first-quoted passages from Smith v. Owen: that delivery is complete if the Í* grantor evinces an intention to deliver, though he retains custody. Neither is it necessary that we fix the exact moment of delivery; we are concerned with the totality of the evidence spanning years of the grantor’s life. It is enough that Fred Par-ramore, unsophisticated in such matters, signed deeds creating remainder interests in his several children and put the deeds beyond his immediate reach in a place which he understandably regarded and verbally identified as the appropriate depository for instruments having practical effect at life’s end; that he invariably spoke and acted to indicate that he considered the children’s remainder interests vested, even to the point of declaring to a prospective buyer that he could not convey the land because it had been deeded away; and that he did not again take the deeds into his more immediate possession or otherwise disturb them. There is no reason why the grantor’s evident intent, as discerned by the trial court, should not be regarded as effectuated by his conduct; nor any reason to doubt that his deeds were thereby delivered by all ceremonies that the law may sensibly require.

AFFIRMED.

MELVIN and BOOTH, JJ., concur.


author: MILLS, Judge.

text:
    Peter Mason WILSON, Appellant, v. STATE of Florida, Appellee.
    No. JJ-2.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1978.
    Stephen Lindsey Gorman and Sidney L. Matthew, Daniel S. Dearing, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Case Summary

This is an appeal from a judgment and sentence adjudicating Wilson guilty of a lewd act on a child under fourteen years of age and solicitation for a lewd act on a child under fourteen, and sentencing Wilson to five years on each count to run concurrently.

Facts

The State produced witnesses who testified that Wilson took movies of them performing various sexual acts. Wilson did not testify.

During closing argument the state attorney made comments which were objected to by defense counsel. The.first statement to which an objection was made is as follows:

“I don’t want you to convict an innocent man. And you’re not called on to do that. I can look each of you right straight, square in the eye, and never bat my eye, and tell you that I believe with all my heart, mind and soul, this defendant to be guilty of these offenses. I’m not asking you to convict an innocent man. I’m not asking you to do that.”

Later in the argument the state attorney said:

“He says I’ll try to sweep under the rug that we don’t have any film. Ladies and Gentlemen, we never charged Dr. Peter Wilson, the educator . with being dumb, stupid, slow, unintelligent. Ladies and Gentlemen, we don’t have the film. We do not have the film. If we had them, I would have showed them to you. Dr. Wilson maybe could shed some light on it.”

Issue

Whether the comments made by the prosecuting attorney during closing argument require reversal of this case?

Wilson contends that the comments constituted reversible error because: (1) the first was an expression of the prosecutor’s personal opinion on the justness of the cause; (2) the second was comment on Wilson’s right to remain silent.

The State contends that the comments did not constitute reversible error because: (1) the first comment was fair response to defense counsel’s argument, was legitimate comment on the evidence, and did not contain any implication that the opinion was based on information other than that presented in open court; (2) the second comment was in response to defense counsel’s closing argument and, if error, was harmless.

Decision

Rule 3.250, Florida Rules of Criminal Procedure, formerly Section 918.09, Florida Statutes, reads in part:

no accused person shall be compelled to give testimony against himself, nor shall any prosecuting attorney be permitted before the jury or court to comment on the failure of the accused to testify in his own behalf . . .”

In Trafficante v. State, 92 So.2d 811 (Fla.1957), the Supreme Court discussed Section 918.09, stating:

“. our law prohibits any comment to be made, directly or indirectly, upon the failure of the defendant to testify. This is true without regard to the character of the comment, or the motive or intent with which it is made, if such comment is subject to an interpretation which would bring it within the statutory prohibition and regardless of its susceptibility to a different construction.”

We think that the prosecuting attorney’s comment, “Dr. Wilson maybe could shed some light on it,” was an indirect comment on the defendant’s failure to testify and requires reversal of this case.

The State argues that the comment was “invited” because defense counsel mentioned in his closing argument that the film allegedly taken by Wilson had not been produced. Comment by defense counsel on the State’s failure to produce certain evidence does not “invite” the prosecuting attorney to suggest to the jury that the defendant could “shed some light on it”. Adjmi v. State, 139 So.2d 179 (Fla.3d DCA 1962); Testasecca v. State, 115 So.2d 584 (Fla.2d DCA 1959), and Waid v. State, 58 So.2d 146 (Fla.1952), cited by the State to support its position, are not on point. In Testasecca and Waid, defense counsel in their closing arguments specifically mentioned the fact that the defendants had not taken the stand. In Testasecca, after defense counsel pointed out that the defendant was under no duty to take the stand and that his not taking the stand did not indicate that he was guilty, the prosecution replied that it did not indicate that he was innocent either. In Waid, defense counsel remarked upon the lack of testimony by the defendant and the reason for it; the State merely responded. In Adjmi, the court determined that the comment complained of was not a comment upon the failure of the defendants to testify.

Here, defense counsel mentioned that the prosecution did not produce the films allegedly shot by Wilson. The State could certainly respond to the argument, if it wished to, without suggesting that Wilson could explain the absence of the films. The prosecutor’s comment was not invited and was an indirect comment on Wilson’s failure to testify. The trial court erred by not granting the defendant’s motion for mistrial. The fact that the Standard Jury Instruction on the defendant’s not testifying had been requested by the defense prior to closing argument and the fact that it was given, does not justify the trial court’s refusal to grant a mistrial.

We also think that the prosecutor’s remark concerning his personal belief in the defendant’s guilt was improper. Disciplinary Rule DR7-106(C)(4) of the Code of Professional Responsibility states:

“(C) In appearing in his professional capacity before a tribunal, a lawyer shall not:
“(4) Assert his personal opinion as to the justness of the cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but he may argue, on his analysis of the evidence for any position or conclusion with respect to the matters stated herein.”

The prosecutor’s statement that he believed in the defendant’s guilt with all his “heart, mind and soul,” goes beyond a conclusion based on an analysis of the evidence. In Cochran v. State, 280 So.2d 42 (Fla.1st DCA 1973), this court stated:

“It is the duty of a prosecuting attorney in a trial to refrain from making improper remarks or committing acts which would or might tend to affect the fairness and impartiality to which the accused is entitled. His duty is not to obtain convictions but to seek justice, and he must exercise that responsibility with the circumspection and dignity the occasion calls for.”

Judgment

This case is reversed and is remanded for a new trial. ‘

BOYER, Acting C. J., and ERVIN, J., concur.


text:
    SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Appellant, v. Diane FICHERA, Jerry Lou Touchard a/k/a Jeri Touchard, and Insurance Company of North America, Appellees.
    Nos. 77-202, 77-314 and 77-577.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 1978.
    On Rehearing Feb. 28, 1979.
    Joe N. Unger, Miami, and John P. Wied-erhold of Pomeroy, Betts & Wiederhold, Fort Lauderdale, for appellant.
    George E. Gleason of Sullivan, Cochran, Ranaghan, Bailey & Gleason, Pompano Beach, for appellees.
   PER CURIAM.

Those portions of the Final Judgments which require payment by Southern Farm Bureau Casualty Insurance Company in excess of the amount allowed under Dewberry v. Auto-Owners Insurance Company, 363 So. 1077 (Fla.1978) are reversed and this cause is remanded for entry of judgments in accordance with the dictates of that case.

REVERSED and REMANDED.

CROSS, ANSTEAD and DAUKSCH, JJ., concur.

ON PETITION FOR REHEARING

The parties have correctly pointed out we did not specifically rule upon a second issue on appeal which is not within the dictates of Dewberry v. Auto-Owners Insurance Company, 363 So.2d 1077 (Fla.1978). We find no error in the trial court’s ruling which was the basis for the second point on appeal and affirm that on the authority of United States Fire Insurance Company v. Van Iderstyne, 347 So.2d 672 (Fla. 4th DCA 1977). We decline the request to certify the question resolved in this case, which is essentially the same question in United States Fire Insurance Company v. Van Iderstyne, supra.

CROSS, ANSTEAD and DAUKSCH, JJ., concur.