author: ROBERTS, Justice. ADKINS, Justice

text:
    Honorable David U. STRAWN, Petitioner, v. STATE of Florida ex rel. Jon ANDERBERG, Respondent.
    No. 47092.
    Supreme Court of Florida.
    April 21, 1976.
    Rehearing Denied June 22, 1976.
    Robert L. Shevin, Atty. Gen., and Stephen R. Koons, Asst. Atty. Gen., for petitioner.
    Franklin D. Kelley, Public Defender, and Jerrold A. Bross, Asst. Public Defender, for respondent.
   ROBERTS, Justice.

This cause is before us on certiorari granted to review the decision of the District Court of Appeal, Fourth District, reported at 307 So.2d 213, which purportedly conflicts with Adkins v. Smith, 205 So.2d 530 (Fla.1968); State ex rel. Cacciatore v. Drumright, 116 Fla. 496, 156 So. 721 (1934), and State ex rel. Johnson v. Anderson, 37 So.2d 910 (Fla.1948). We have jurisdiction pursuant to Article V, Section 3(b)(3), Constitution of Florida.

Respondent, Anderberg, was charged by information with the crime of breaking and entering a dwelling with intent to' commit a misdemeanor, to-wit: petit larceny. At the conclusion of the State’s case, defense counsel called the defendant as a witness. After lengthy examination, cross-examination, and redirect examination of the defendant, defense counsel stated as follows:

“Your honor, if I may at this time, if it please the court, we would allow the defendant to answer any questions that the jury may wish to ask him.”

The Court then excused the jury from the courtroom at which time defense counsel explained its position to the court in requesting that the jury ask defendant any questions and stated that this had been done in several other courts in this State and that it is in keeping with finding proof and justice in a court of law. The trial judge remarked that no mention had ‘been made to the court that it was defense counsel’s intention to request this and determined that it was a highly inappropriate procedure and that making such request in the presence of the jury so contaminated the trial as to require declaration of a mistrial. In explaining to the jury his reason for declaring a mistrial, the trial judge stated,; inter alia:

“Obviously, you are not trained in the law. It is quite possible that things that could be of interest to you would be objectionable to the State or to the Defendant. They are placed in a bad position if they have to object to a juror’s question, and I am placed in a bad position if I have to sustain it, and they the jurors become adversaries, too-. And to ensure that impartiality that is so important to our system, and to ensure the fact that your decision is based only upon the evidence that is admissible in this courtroom, and that you not have any feeling of having been shut off in anything, which you would if someone objected to your question and I had to sustain it. In our system for many centuries, jurors have not been permitted to ask questions, and perhaps some day if we don’t need lawyers for the system, then jurors could be permitted to ask any question they liked, and there wouldn’t be any need for lawyers in the courtroom, the jurors could investigate it fully and make a decision. But that is not our system. Our system depends on utter impartiality and upon having two trained counsel to ask questions, to object to each other’s questions at times, and to ask those questions for the purpose of eliciting admissible evidence.”

Subsequently, pursuant to Rule 3.190(b) and Rule 3.190(c)(2), Florida Criminal Rules of Procedure, defendant moved to dismiss the information on the ground that to try defendant again would constitute double jeopardy since the trial court abused its discretion in directing a mistrial with there being no manifest necessity for mistrial. With detailed explanation pertaining particularly to the need for impartial jury, the trial judge denied the motion to dismiss and found that his declaration of mistrial was properly made and, that, therefore, jeopardy had not attached.

Defendant’s petition for writ of prohibition to the District Court of Appeal, Fourth District, was granted, and the District Court determined that prohibition was an appropriate remedy and that defendant’s contention of double jeopardy was meritorious. Although recognizing two earlier cases which held to the contrary on the prohibition question, the District Court explicated that the more recent decisions of this Court and the District Courts find that under these circumstances prohibition is the proper remedy. As to the second point, the District Court determined that under the circumstances, the declaration of mistrial was not a matter of manifest, urgent or absolute necessity. The District Court determined that the offer by defense counsel to submit his client to juror interrogation made in the presence of the jury could not have been misconduct or in any event could not have been misconduct of such a nature as to prevent the State from receiving a fair trial.

Initially, we remark that the District Court correctly concluded that prohibition was an appropriate and available remedy to respondent under the circumstances. Cf. State ex rel. Williams v. Grayson, 90 So.2d 710 (Fla.1956); State ex rel. Manning v. Himes, 153 Fla. 711, 15 So.2d 613 (1943); State ex rel. Wheeler v. Cooper, 157 So.2d 875 (Fla.App.1963).

However, we cannot agree with the District Court’s determination that the trial judge erred in declaring a mistrial and that, therefore, jeopardy attached and the charge against respondent should be dismissed. The constitution does not guarantee a defendant a perfect trial (which would be difficult if not virtually impossible), but it does guarantee a fair trial. The trial judge is the man on the ground in full view of the premises. In the conducting of a complicated criminal trial, he finds it necessary to rule many times and, like the referee in an athletic contest, must rule quickly. Generally speaking, he has neither the time, convenient library, nor a staff to research each legal and evidentiary question with which he is confronted in a fast moving trial. It is, therefore, necessary that he be given broad discretion in disposing of such matters.

Sub judice the trial judge was suddenly confronted with a difficult situation created by trial counsel conducting himself in an unorthodox manner. After defense counsel had made the aforementioned remark, the trial judge stated:

“We have had one problem in this court, and it is that you made no mention to me that this was your intention to request this. I regard it as highly inappropriate procedure. Who is to object to a Juror’s question? And you’re [sic] asking it in the presence of the Jury so contaminates this trial that I am at this time declaring a mistrial.”

The defendant should not now be allowed to take advantage of a confusing situation which he and his counsel created. Cf. Adkins v. Smith, supra. There well may have been better ways, after meditation, to dispose of the crisis but the trial judge exercised his discretion to declare a mistrial, and we are unable to say that his decision was an abuse of that discretion. Since it was not an abuse of discretion to enter the mistrial, the plea of former jeopardy is not available to the defendant as a defense.

At this point, we must restate the following relevant portion of our decision in Adkins v. Smith, supra:

“The question here under consideration was discussed by this court in State v. Grayson, Fla., 90 So.2d 710, in which it announced illustrations of urgent or necessary reasons that would justify the entry of an order declaring a mistrial. These reasons were illustrative but not exclusive. We announced the rule there that where a jury is discharged for legally insufficient reasons and without necessity and without the defendant’s consent, such discharge would preclude a subsequent trial for the same offense. But in determining what is a legally sufficient reason, the trial court must be armed with discretion since he is conducting the trial and familiar with circumstances, tensions and conditions which may be present in the courtroom. The matter of the trial judge’s discretion in such cases was discussed by the Supreme Court of the United States in Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901, in which that court affirmed Gori’s conviction at his second trial on a charge he had knowingly received and possessed goods stolen in interstate commerce. After his first trial had been terminated by the trial judge’s declaration of a mistrial sua sponte and without petitioner’s express consent but concedingly in the trial court’s exercise of discretion • out of regard for petitioner’s interest, the court held that the second trial was not double jeopardy, and said:—
“ ‘Since 1824 it has been settled law in this Court that “The double-jeopardy provision of the Fifth Amendment * * * does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment.” Wade v. Hunter, 336 U.S. 684, 688, 69 S.Ct. 834, 831, 93 L.Ed. 974; United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165; Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146; Keerl v. State of Montana, 213 U.S. 135, 137-138, 29 S.Ct. 469, 53 L.Ed. 734; see Ex parte Lange, 18 Wall. 163, 173-174, 21 L.Ed. 872; Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199. Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant’s consent and even over his objection, and he may be retried consistently with the Fifth Amendment. Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968; Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429; Dreyer v. Illinois, 187 U.S. 71, 85-86, 23 S.Ct. 28, 47 L.Ed. 79. It is also clear that “This Court has long favored the rule of discretion in the trial judge to declare a mistrial and to require another panel to try the defendant if the ends of justice will be best served * * Brock v. North Carolina, 344 U.S. 424, 427, 73 S.Ct. 349, 350, 97 L.Ed. 456, and that we have consistently declined to scrutinize with sharp surveillance the exercise of that discretion. See Lovato v. New Mexico, 242 U.S. 199, 37 S.Ct. 107, 61 L.Ed. 244; cf. Wade v. Hunter, supra. In the Perez case, the authoritative starting point of our law in this field, Mr. Justice Story, for a unanimous Court, thus stated the principals which have since guided the federal courts in this application of the concept of double jeopardy to situations giving rise to mistrials:
“ ‘ * * * We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise ‘be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes ; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the judges under their oaths of office. * * * ” ’
* * * * * *
“. . . The New Jersey Supreme Court in an exhaustive treatise on the subject, said:—
“ ‘As we have noted above, the double jeopardy protection does not mean that once an accused has been put on trial regularly, the proceeding must run its ordinary course to judgment of conviction or acquittal. The rule does not operate so mechanistically. If some unexpected, untoward and undesigned incident or circumstance arises which does not bespeak bad faith, inexcusable neglect or inadvertence or oppressive conduct on the part of the State, but which in the considered judgment of the trial court creates an urgent need to discontinue the trial in order to safeguard the defendant against real or apparent prejudice stemming therefrom, the Federal and State Constitutions do not stand in the way of declaration of a mistrial. And this is true even if the conscientious act of the trial judge may be characterized as the product of “extreme solicitude” or “overeager solicitude” for the accused. See, Gori v. United States, supra, 367 U.S., at p. 367, 81 S.Ct., at p. 1525. Moreover, if an incident or circumstance of that nature moves the court to order a mistrial not only to safeguard the right of the defendant to a full and fair trial, but also to protect the right of society to have its trial processes applied fully and fairly in the due administration of the criminal law, there is even less basis for a claim of trespass upon the privilege against double jeopardy....’”

Cf. U. S. v. Jorn, 400 U.S. 470 at 479-480, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Tyson v. State ex rel. Richmond, 240 So.2d 811 (Fla.1970); Goodman v. State ex rel. Furlong, 247 So.2d 47 (Fla.1971); State ex rel. Mitchell v. Walker, 294 So.2d 124 (Fla.App. 2, 1974).

During the course of the hearing on motion to dismiss the information on grounds of double jeopardy, the learned trial judge explained his finding that it was manifestly urgent and necessary to terminate the trial, as follows:

“If it is a practice which is one which undermines the jury system of the jury trial, I think the question is really whether or not we want an inquisitorial system or we want a system of jury trials which are conducted by a Judge with the assistance of trained advocates, in accordance with well-developed and historically sound rules of law; particularly, those rules of law that deal with procedure, rights of defendant, and questions of what may or may not be introduced.
“Upon a question of criminal litiga-tions, as evidenced for the consideration by the Jury, the first question that comes to mind when a situation like this was created, is if we assume for the moment that that is the law or would be the law, that either Counsel could subject any witness to the questioning of a jury, who is not trained to the law, has no awareness of the problems of evidentiary procedure.
“First of all, we would have the fact that the other adversary is placed in the position of having to object to the very procedure, that lay people could very well read into that objection something like this: There is something we don’t want the jury to know and, therefore, Judge, we don’t want to let them ask any questions. We want control. That is the way the system operates and laymen could very well reach that inference, which would be an unfortunate inference in the Court of a jury trial on actions.
“Fairness on objections is also one of the legal rules in obtaining a verdict.
“The second problem that comes up is who is to object to the improper questions óf jurors; and, here, we not only move into an area which the Defendant suggested that juries should ask questions, that the State might have some objections to the questions asked, but we also expose the Defendant’s right to either open litigation or certainly cross-examination in the process, because the Defendant, after having asked a question like this, if the Court and jury permit them to ask questions, could then very well be faced with the position where they would like to question the Defendant about other crimes that they believe he might have been involved in.
“The Defendant would be subjected to two alternatives then. He might perjure himself, if there were other crimes, or he might not want to give up his right to remain silent and not to testify against himself regarding such other offenses and other crimes.
“In addition, who would object, if the Jury wanted to inquire into hearsay matters? For example, the jury might inquire as to whether or not anybody in the Defendant’s family had ever committed a crime or did the Defendant run around with criminals.
“There are lots of other possibilities, and I am suggesting that rather than go through all the horribles, I think the problem as suggested would involve two other points. The jury also would be placed, as mentioned by the State, there is a distinct possibility that the jurors will become advocates. They will lose their ability to remain neutral. If they don’t like an answer given or the way it’s given or if objections by Counsel to a question asked by a juror, and they take the adverse position established by that objection, and instead of fair and impartial jurors who are not going to form or express any opinions until the entire 'case has been heard, we would now have some advocates on the jury. They can no longer function as a jury system has been evolved to function.
“Now, it is possible that with the agreement of the trial judge and by approaching him in advance of trial with the thought that such procedure might be employed, and with the agreement of all concerned, that the jurors could be permitted to submit questions in writing and not communicate their questions to each other; those questions would be reviewed by the Court and Counsel, and those questions that could be answered, could be answered in open court by the Judge, after having ruled on any objections that either Counsel might have to the question or the answer which it sought.
“Even that is a pretty far out procedure. I wouldn’t take it upon myself without the benefit of a lot of things to induce that kind of procedure into our system, because the very fundamental base of our system is the adversary concept, and this begins to move a little bit away from it. In fact, it moves drastically away from it in the way it was used in this trial, that if we are to move away from an adversary approach and go to an inquisitorial approach, that procedure will have to be adopted by a higher court than my own.
“The question we come to is whether or not introducing this element into the case is sort of a misconduct of Counsel that justifies this Court in declaring a mistrial. Because, I find as I do that this is not a common practice, that it is apparent that that the practice is not provided for by any rule of procedure or rule of law, and one which violates the fundamental precepts of our system and risks the rights of our Defendant, which have always been protected by our system.
“I feel that such misconduct would justify the Court in terminating the trial at that time. I believe it was manifestly urgent and necessary to terminate the trial because I don’t believe by any stretch of the imagination those jurors could be convinced that they weren’t being deprived of some possible right. I don’t think they could be convinced without convincing them that the attorney himself and perhaps even his clients were a party to the improper conduct, nor do I think they could be convinced that from that point forward in .the trial, they should disregard what happened and ignore it and go on as they had agreed to try the case.
“The Court, as that time, felt strong enough that the problem was too risky to the sanctity of the trial of the Defendant. If that sort of conduct is to be permitted and it is not grounds for a mistrial, there, again, I will have to have an appellate court tell me, because if they tell me that that is not sufficient in misconduct and that it would be enough to merely tell the 'jury to ignore the offer, which, on the behavioral sense I mentioned before, I don’t think it would be sufficient to instruct them to erase that from their minds after having made that kind of an offer.”

Respondent gave absolutely no notice to anyone that he planned to follow this unorthodox course of action. As above stated, the trial judge indicated that he may have entertained jury questioning and set up an appropriate procedure for it which would safeguard the defendant’s rights if counsel had given him the opportunity. The holding that the trial judge did not err in declaring a mistrial does not contradict our earlier holdings in Ferrara v. State, 101 So.2d 797 (Fla.1958) and Shoultz v. State, 106 So.2d 424 (Fla.1958). In Ferrara, this Court merely stated:

“We think that upon appropriate occasion a trier of fact might be completely justified in propounding a question.
* * % * * *
“We conclude that the procedure should be one to be controlled by the discretion of the trial judge.” (Emphasis supplied)

For the foregoing reasons, we find that the trial judge did not abuse his discretion in declaring a mistrial and the plea of former jeopardy is not available to respondent-defendant.

Accordingly, the decision of the District Court of Appeal is quashed and the cause is remanded to the District Court with instructions that it be remanded by them to the trial court with directions that the trial court reinstate the charges and proceed with the trial.

It is so ordered.

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

ADKINS, J., dissents with an opinion.

BOYD and HATCHETT, JJ., dissent and concur with ADKINS, J.

ADKINS, Justice

(dissenting).

Where a jury is discharged for legally insufficient reason and without necessity and without the defendant’s consent, the discharge precludes subsequent trial for the same offense. The trial court is armed with discretion in determining what constitutes a manifest necessity or a “legally sufficient reason” for declaring a mistrial. Adkins v. Smith, 205 So.2d 530 (Fla.1967).

There are two schools of thought as to the desirability of permitting jurors to ask questions of witnesses. On the one hand there are cases which suggest that trial courts should encourage the practice. Stamp v. Commonwealth, 200 Ky. 133, 253 S.W. 242 (1923); Schaefer v. St. Louis & S. Ry. Co., 128 Mo. 64, 30 S.W. 331 (1895); State v. Kendall, 143 N.C. 659, 57 S.E. 340 (1907); Boggs v. Jewell Tea Co., 266 Pa. 428, 109 A. 666 (1920); Nelson v. State, 513 S.W.2d 496 (Ark.1974).

On the other hand there are cases which declare that the practice is dangerous and ought not to be encouraged. Therefore, the privilege should only be extended with great caution. State v. Golden, 353 Mo. 585, 183 S.W.2d 109 (1944); People v. Knapper, 230 App.Div. 487, 245 N.Y.S. 245 (1930); White v. Little, 131 Okl. 132, 268 P. 221 (1928). See also Pacific Imp. Co. v. Weidenfeld, 277 F. 224 (1921) (where the practice is strongly condemned).

75 Am.Jur.2d Trial § 935 contains the following discussion on this question:

“The view has been expressed by some courts that the practice of jurors’ asking questions in open court during trial should be encouraged on the theory that it is of prime importance for jurors to obtain a fair comprehension of the issues and clarification of any facts which will promote a better understanding of the evidence. Other courts have taken the position that juror questioning should be discouraged, reasoning that laymen are not well qualified to conduct an examination and that a complaining counsel may be placed in the unreasonable tactical position of not being able to raise an objection for fear of alienating the questioning juror.
“The decisions dealing with the propriety of jurors’ asking questions in open court during trial have recognized, although usually without any explicit statement to that effect, the general rule that before error can be complained of, it must have been prejudicial to the substantial rights of the party appealing or seeking relief. And even where prejudice has been determined, the curative actions of a trial judge can remedy the error.
“Where it appeared that jurors were invited by counsel for the complaining party to ask questions, or express or implied consent to such practice was given by him, it has been- held that no prejudicial error occurred, especially where it otherwise appeared that the rights of the complaining party were not affected.”

In People v. Heard, 388 Mich. 182, 200 N.W.2d 73 (1972), the court considered an appeal from a conviction of first degree murder. In his opening statement defendant’s counsel informed the jury that they had the right to ask questions of witnesses if they so desired during the course of the trial. He further stated they should write out these questions and that the trial judge had the right to limit the scope of the questions. The prosecutor objected and the trial judge ruled that the jurors had no right to submit questions to the witnesses, the judge saying, among other things, that he never heard of it being done and knew of no authority that it had ever been done. From the colloquy between the court and the attorney, as recited in the opinion, it is apparent that the judge reacted just as the judge in the instant case. The Supreme Court of Michigan said:

“While less than half the states have spoken on this question, all but one have recognized the right of jurors to ask questions. These states include Arkansas (Ratton v. Busby, 230 Ark. 667, 326 S.W.2d 889, 76 A.L.R.2d 751 [1959]); Florida (Ferrara v. State, 101 So.2d 797 [Fla.1958]); Indiana (Carter v. State, 250 Ind. 13, 234 N.E.2d 650 [1968]); New York (Sitrin Brothers, Inc. v. Deluxe Lines, Inc., 35 Misc.2d 1041, 231 N.Y.S.2d 943 [1962]); Pennsylvania (Boggs v. Jewell Tea Co., 266 Pa. 428, 109 A. 666 [1920]), and Reese v. Pittsburgh, 313 Pa. 32, 169 A. 366 [1933]).
“The trial judge asserted that this had never been allowed in a criminal case, but he was incorrect in this statement. In Carter v. State, supra, defendant had been convicted by a jury of involuntary manslaughter. The trial judge stated in his preliminary instruction that none of the jurors was permitted to ask questions of any of the witnesses for either party, or their attorneys. The Indiana Supreme Court held on appeal that this was error. See, also, cases collected in 31 A.L.R.3d 872. The basic reason underlying the decisions of these courts is that the jurors are the finders of fact and any questions they may ask may help them in reaching their ultimate determination. As the Oklahoma Court of Appeals stated in Krause v. State, 75 Okl.Cr. 381, 386, 132 P.2d 179, 182 (1942):
‘“We think it proper that a juror may ask an occasional question where something has been said by a witness which is confusing to the juror for the purpose of clarifying the matter. The extent to which the trial court may allow such questioning by the juror is a matter in the discretion of the court.’
“The prosecutor contends that although many of the states have recognized the right of jurors to ask questions, these states have also discouraged this right. See, for example, Ferrara v. State, supra, and Shoultz v. State, 106 So.2d 424 (Fla.1958).
“We are dealing here with a very narrow issue. The trial judge in denying the motion misstated that there was no case which permitted this type of questioning. He ruled, erroneously, that under no circumstances in criminal matters, could jurors ask questions of the witnesses. We hold this view was error. The practice of permitting questions to witnesses propounded by jurors should rest in the sound discretion of the trial court. It would appear that in certain circumstances, a juror might have a question which could help unravel otherwise confusing testimony. In such a situation, it would aid the fact-finding process if a juror were permitted to ask such a question. We hold that the questioning of witnesses by jurors, and the method of submission of such questions, rests in the sound discretion of the trial court. The trial judge may permit such questioning if he wishes, and we hold that it was error for the judge to rule that under no circumstances might a juror ask any questions.’’ 388 Mich. at 186-88, 200 N.W.2d at 75-76.

See also People v. Justice, 50 Mich.App. 55, 212 N.W.2d 762 (1973).

It is interesting to note in Ratton v. Busby, 230 Ark. 667, 326 S.W.2d 889, 896 (1959), a civil case seeking damages, an attorney sought a mistrial because “questioning by the Court and the jury had

‘ * * * unintentionally prejudiced our rights of defense in this case’.” The motion for mistrial was overruled. The appellate court upheld this ruling of the trial court, pointing out that the trial had been fairly conducted and the court properly denied the motion for mistrial based on the manner in which a juror examined a witness. The court referred to the annotation in 159 A.L.R. 347. This annotation contains the following statement:

“While some courts have criticized the practice of allowing jurors to examine witnesses, in most cases the practice has either been approved, or the fact that such questions were asked, or permitted by the trial court, has been held not to constitute error. However, the manner of approval, or the language of the courts in concluding that the practice does not constitute error, is not entirely harmonious.
“Some courts have taken the view that in the interest of justice and fair play, the practice should be encouraged rather than discouraged, regarding it as often necessary in order that the jurors obtain a fair understanding of the issues.” . . . 159 A.L.R. at 347-48. '
“. . . if a juror examines a witness, either with or without permission of the court, this does not in itself constitute error. However, it must be conceded that even if the practice is permissible, it may be carried out in such a manner or under such circumstances as to warrant the trial court in declaring a mistrial or granting a new trial, or if it fails or refuses to do so, to warrant a reversal by the reviewing court. The determination of the question of prejudice must, of course, largely depend upon the facts in each individual case, but it may be said that, generally speaking, the courts have been reluctant to require a reversal or new trial because of the manner in which a juror examined a witness.” 159 A.L.R. at 350.

By the great weight of authority the granting of permission to a juror to ask questions lies within the sound discretion of the court.

There was nothing improper in the request of defense counsel in the case sub judice and the court could have allowed the jury to question a witness without committing reversible error. This Court has recognized the right of the juror to question a witness and frowned upon any effort to hinder this right.

Ferrara v. State, 101 So.2d 797 (Fla.1958) involved the propriety of a pamphlet entitled “Handbook for Trial Jurors” which was distributed to all the jurors in one of the judicial circuits. The Court generally approved the contents of the pamphlet but made the following observation:

“Reverting to the warning [in the Handbook] that jurors should not interrogate witnesses, we come to our only criticism of the contents of the booklet. We think that upon appropriate occasion a trier of fact might be completely justified in propounding a question.” 101 So.2d at 801.

The use of such a pamphlet was again challenged in Shoultz v. State, 106 So.2d 424 (Fla.1958). This Court referred to its opinion in Ferrara and declined to reconsider the issue. In its opinion the Court said:

“However, we would like to take this opportunity to reaffirm our criticism of the provision of this handbook which admonishes jurors not to question witnesses. . . . We suggest, however, that the pamphlet herein considered should be modified to eliminate this admonition in order that future criticism may be avoided, for we cling to the view that upon appropriate occasions a trier of fact might be justified in propounding a question.” 106 So.2d at 425-26.

The trial judge in his discretion, could have refused to allow the questioning or he could have permitted it. Rather than exercise his discretion in passing upon the propriety of defense counsel’s statement, the judge declared a mistrial.

The mistrial was grounded upon a finding by the trial judge that defense counsel’s conduct was improper. There can be no improper conduct on the part of an attorney who places the judge in a position to rule upon some question which involves discretion. The judge may be bitterly opposed to the suggested procedure and he may, in his discretion, disallow the procedure, but it is not improper for the attorney to make the request or attempt to follow the procedure.

Where anything is done during the course of a trial which the court could allow in its discretion, there can be no manifest necessity for declaring a mistrial. In determining that the conduct of the attorney was legally sufficient reason for a mistrial, the trial court abused its discretion.

Jeopardy attached and the peremptory writ of mandamus should issue.

BOYD and HATCHETT, JJ., concur.


source: Caselaw Access Project

author: ENGLAND, Justice.

license: Public Domain

text:
    HILLSBOROUGH ASSOCIATION FOR RETARDED CITIZENS, INC., et al., Petitioners, v. CITY OF TEMPLE TERRACE et al., Respondents.
    No. 48504.
    Supreme Court of Florida.
    May 12, 1976.
    Rehearing Denied July 8, 1976.

      Thomas A. Clark and Thomas J. Roehn, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for petitioners.
    Theodore C. Taub and Robert C. Gibbons, Gibbons, Tucker, McEwen, Smith, Cofer & Taub, Tampa, for respondents.
    Robert L. Shevin, Atty. Gen., James D. Whisenand, Deputy Atty. Gen., and Sharyn L. Smith, Asst. Atty. Gen., for amicus curiae.

      James G. Mahorner, Tallahassee, for State of Florida Dept, of Health and Rehabilitative Services, amicus curiae.
    John W. Bowen, Rowland, Petruska, Bowen & McDonald, Orlando, for The School Bd. of Orange County, Florida, amicus curiae.
   ENGLAND, Justice.

The Second District Court of Appeal has certified to us, pursuant to Article V, § 3(b)(3) of the Florida Constitution, a question of great public interest on which it passed in a decision reported at 322 So.2d 571. The question involves the extent to which agencies of the state are subject to municipal zoning ordinances.

The Hillsborough Association for Retarded Citizens, Inc. is a private non-profit corporation under contract with the Division of Retardation of the Department of Health and Rehabilitative Services to provide a respite care center where the guardians of retarded persons can leave their charges for short periods of time. The Association established such a center in a privately-owned house located in an area of the City of Temple Terrace zoned for single family residences, in clear violation of municipal ordinances. It had not sought prior permission to engage in a non-conforming use.

As the district court noted, the issue involved in this case has statewide significance, important intergovernmental consequences, and no clear precedent in this jurisdiction. We have heard oral argument and had the benefit of briefs from the named parties, the Attorney General of Florida, and the Department of Health and Rehabilitative Services. These presentations on the very difficult legal issues involved in this case have been thorough and skillful. Our review of the matter persuades us to adopt the position asserted by the City and adopted by the district court. The opinion authored by Judge Grimes below has also simplified our task, being a craftsmanlike product which has fully explored and evaluated the issues and their legal effects. We cannot improve on his analysis, and it would serve no purpose to rephrase it. We adopt his opinion as our own.

The only point of law urged here which is not addressed in the opinion below is the applicability of our decision in Dickinson v. City of Tallahassee, 325 So.2d 1 (Fla.1975), adopted after the district court had ruled. In Dickinson we held that the state was immune from a municipal utility tax, in part because Article VII, § 9(a) of the Florida Constitution did not expressly waive the state’s sovereign immunity from taxation and in part because the applicable statute did not expressly confer on municipalities the power to impose a utility tax on the state. Sovereign immunity is no guide here as we deal with a zoning power of municipalities which is derived from Article VIII, § 2(b) of the Florida Constitution by way of the Municipal Home Rule Powers Act. This constitutional delegation of municipal authority differentiates Dickinson.

We conceive that the effect of our decision will be that the state will always cooperate with local government when it has decided to achieve an objective by means of a non-conforming use. Except where a specific legislative directive requires a non-conforming use in the particular area, local administrative proceedings will provide the forum in which the competing interests of governmental bodies are weighed.

The procedural circumstances of this case call for a determination by the trial court rather than the local zoning authority, though generally we would expect the courts in the future to defer action until administrative proceedings were completed. For this reason, the decision of the district court is affirmed.

OVERTON, C. J., and ADKINS and SUNDBERG, JJ., concur.

ROBERTS, J., concurs in judgment adopting DCA decision.

      . All parties agree that our review extends to the “decision” of the district court, rather than the question on which it passed. Rupp v. Jackson, 238 So.2d 86 (Fla.1970).

      . After oral argument, the School Board of Orange County was granted leave to file a brief as a friend of the Court. The Board argues that the constitutional genesis of school boards differs from that of other state agencies, and that school boards have been granted location powers paramount to local zoning authority. The City of Temple Terrace has controverted these assertions. The issues raised by the school board are not appropriately resolved in this proceeding where it is not a party and no dispute presently exists. For that reason we expressly decline to pass on the applicability of this decision to those agencies.

      .An ancillary benefit in resolving intergovernmental disputes results from our adoption of the City’s view. By requiring state agencies to seek local approval for non-conforming uses, an administrative solution is always present in the form of zoning appeals. In contrast, if the state were not required to seek local approval, the city would always be forced to litigate its disagreement, as happened here. It serves the public’s benefit to resolve these controversies in a way which does not mandate the most expensive and least expeditious way of settling intergovernmental disputes.

      . Section 166.021(4), Fla.Stat. (1973).

      . See, Note, Governmental Immunity From Local Zoning Ordinances, 84 Harv.L.Rev. 869, 883-885 (1971). Petitioner has raised here its concern that local governments will he able to thwart state policy by refusing to approve zoning for legislative projects. The courts are available, however, to review the balance struck in administrative proceedings. Beyond that, as petitioner states in its brief, “the State of Florida possesses the power to exempt itself from local zoning ordinances.”


author: BOYD, Justice.

text:
    SOUTHSIDE MOTOR COMPANY, ETC., et al., Petitioners, v. Governor Reubin O’D. ASKEW, etc., et al., Respondents.
    No. 48519.
    Supreme Court of Florida.
    May 12, 1976.
    J. Ben Watkins of Watkins, Hill & Marts, and Wilson W. Wright, Tallahassee, for petitioners.
    Edwin E. Strickland, Gen. Counsel, and Enoch J. Whitney, Asst. Gen. Counsel of the Dept, of Highway Safety and Motor Vehicles, Tallahassee, for respondents.
    Stephen Stratford and Walter G. Arnold of Arnold, Stratford & Booth, Jacksonville, for Crown Ford, Inc., intervenor.
    John B. Kent and Fred H. Kent of Kent, Sears, Durden & Kent, Jacksonville, for Ford Motor Co., intervenor.

      J. Robert McClure, Jr., of McClure, Wigginton, Campbell & Owen, Tallahassee, for Fla. Automobile Dealers Assn., interve-nor.
   BOYD, Justice.

In response to the Petitioners’ prayer for a writ of mandamus and upon their allegations that Respondents had granted to Crown Ford, Inc. permission to operate a Ford Motor dealership on the North side of Jacksonville without statutory notice having been served upon them, this Court issued an alternative writ of mandamus. After carefully reviewing Respondents’ return and all the briefs filed in this matter we are of the opinion that a peremptory writ of mandamus should be denied.

On February 16, 1973, Miller Joiner Ford, Inc. applied to the Division of Motor Vehicles, Department of Highway Safety and Motor Vehicles, State of Florida, for a license to serve as a Ford franchised dealer on the North side of Jacksonville. Submitted with the application were letters from Petitioners Southside Motor Company and Duval Motor Company directed to Respondents, dated January 15, 1973, stating that they had no objection to the application. Petitioners Lynch-Davidson Ford, Inc. entered a protest letter. A hearing was held upon the application, and John Calvin, Director of the Division of Motor Vehicles, entered an order granting the license to Miller Joiner, Inc. on June 25, 1973. Lynch-Davidson Ford, Inc. petitioned for a writ of certiorari in the District Court of Appeal, First District, challenging the order. The First District Court of Appeal granted certiorari and remanded with directions that an appropriate final order be entered containing specific findings of fact based upon the evidence adduced at the hearing.

On January 16, 1975, Director Calvin entered a final order as required, containing specific findings, and concluding that the evidence supported the grant of the license. Petitioner Lynch-Davidson Motors, Inc. then filed a “Petition to Vacate Opinion and Rescind Challenged License,” which was considered by the First District Court of Appeal and denied.

On May 20, 1975, Ford Motor Company filed a Notice of Termination and its franchise with Miller Joiner was duly terminated. On August 12, 1975, Miller Joiner Ford’s license was cancelled by Respondents because of the termination of its franchise relationship with Ford Motor Company.

Reasoning that a dealer point was established when Miller Joiner’s license was issued and that the dealer point continued to exist despite the cancellation of the license, the Department gave Ford Motor Company a reasonable time in which to select a replacement franchisee to be located at the dealer point. Crown Ford, Inc. was chosen by Ford Motor Company as the successor franchisee and a license to act as a Ford franchised dealer was issued to Crown Ford, Inc. on December 1, 1975.

Petitioners complain that, when issuing the license to Crown Ford, Respondents did not comply with Section 320.642, Florida Statutes, or Rule 15C-1.08, Florida Administrative Code. Rule 1 SC-1.08 was not in effect at the time the license was issued because it was stricken from the files of the Department of State on October 1, 1975 in accord with Section 120.72(4) (a), Florida Statutes. Therefore the rule is not applicable to this case. Section 320.642, Florida Statutes, states:

“320.642 Dealer licenses in areas previously served. — The department shall deny an application for a motor vehicle dealer license in any community or territory where the licensee’s presently licensed franchised motor vehicle dealer or dealers have complied with licensee’s agreements and are providing adequate representation in the community or territory for such licensee. The burden of proof in showing inadequate representation shall be on the licensee.”

Director Calvin has determined that a replacement dealer, such as Crown Ford, Inc., does not come within the purview of Section 320.642, since the statute applies to the establishment of new dealerships and not to a replacement dealer.

We agree with Respondent’s construction of the statute. This determination is based on the reality that a replacement dealer placed in an existing established dealer point which has become open by virtue of a franchise cancellation does not pose a threat to other existing dealerships since the replacement dealer does not offer additional competition.

The peremptory writ of mandamus is denied.

It is so ordered.

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


author: PER CURIAM. ROBERTS, J., SUNDBERG, Justice ENGLAND, Justice

text:
    Jimmy Lee JONES, Appellant, v. STATE of Florida, Appellee.
    No. 44669.
    Supreme Court of Florida.
    May 12, 1976.

      James A. Gardner, Public Defender, and Charles H. Livingston and Marion Moor-man, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Appellant was convicted by a jury of rape and of murder in the first degree. He is appealing the conviction and sentence for rape to the District Court of Appeal, Second District, but that proceeding is stayed pending disposition of this direct appeal of Appellant’s conviction and death sentence for murder in the first degree.

The facts of this case are as follows.

On Saturday, May 12, 1973, a postal carrier discovered a slumped and bloody body on a porch in Dade City at approximately 11:45 a. m. The decedent, Estelle Berkowitz, was last seen alive at about 6:00 p. m. on May 11th. The State’s medical examiner attributed death to “blood loss from multiple stab wounds.” The pathologist stated that the “majority of these wounds were quite superficial,” being generally to Vz inch in depth with the deepest wound being 1% inches in depth. The pathologist counted 38 “significant” wounds as well as many other superficial scratches. The wounds’ nature indicated to the pathologist “some kind of a frenzied attack rather than a — coldly—calculated stabbing, homicide premeditated.” The pathologist also found sperm in the deceased’s vagina and noted a laceration in the back part of the lower end of the vagina. Such a laceration sometimes results from forceable sexual assault. There is overwhelming circumstantial evidence of Appellant’s guilt in the record.

In investigating the scene of the homicide the police discovered pieces of broken glass, blood, matches, a pair of glasses, two small bone-like chips of materials, apparently from the handle of the bloody knife used as a murder weapon and found in Appellant’s abandoned shack, a piece of metal about an inch long, small chips taken from the decedent’s clothing, and a thumb print of Appellant on a piece of glass. There appeared to be signs of a struggle inside the apartment. The police detected a trail of spots that appeared to be blood and followed it; the last spot of blood was on a cinder block about 50 to 75 feet from the residence of Annie “Momma Chicken” and Leo “Poppa Hawk” Moorer. The blood on the cinder block was the same type taken from Appellant. Since the police surmised that the suspect was injured on one of his extremities, they publicly sought information about anyone who might have bandages on his hands. As a result, they received information that a man with a cut right thumb was seen coming out of the Moorer yard. Appellant lived alone in a shack behind the Moorer residence. “Momma Chicken” saw Appellant on Saturday morning when he asked for a bandage for his hand; he had been drinking that Saturday and spent all day Sunday in his shack drinking. “Momma Chicken” said that Appellant left on Monday after borrowing a small amount of money from her which she assumed would be spent on something to drink. On Monday police officers searched both the Moorer residence and the shack vacated a few hours earlier by Appellant. In the shack they found two knives, one apparently with dried blood, an unmade bed, clothing, apparent blood stains on a pillow and shirt, a match box, and a knife sheath. Appellant was apprehended in Pennsylvania a week or ten days later.

At trial a convenience store clerk testified that Appellant had purchased wine in her store on various occasions; that on May 7 Appellant purchased a knife, writing materials, and a fifth of wine; that Appellant was acting very strange and looked like he had something dreadful or something on his mind. The witness feared Appellant was going to kill himself, and she thought that the knife purchased on May 7 was similar to one of the knives seized from Appellant’s shack. One of Appellant’s co-workers at a local citrus packing house testified that on either the day of the homicide or the day it was discovered Appellant appeared at work, that he was acting strangely, that he stated that he was going to kill somebody about his money and that he started throwing heavy barrels at another co-worker; the co-worker testifying had asked his foreman to assign him to another job because he didn’t want to be near Appellant “with him acting like that.” Appellant called both lay and expert witnesses to establish his defense of insanity. Appellant’s “wife” testified that Appellant felt he was being pursued and threatened by persons unknown. Appellant admitted he drank a lot of wine both generally and during the period of the crime. A court-appointed psychiatrist found Appellant to be insane under the M’Naghten rule. A clinical psychologist specially selected by the prosecution concurred. Their examinations were brief and over three months after the crime. They recognized he was an alcoholic but said without alcohol he, in their opinion, did not know right from wrong when the crime occurred, due to health problems.

During the sentencing proceeding, the State emphasized three matters relating to aggravation: the commission of the homicide during the perpetration of burglary or rape; the heinous, atrocious and cruel nature of the homicide; and Appellant’s previous three convictions of robbery, including one involving a weapon. Regarding mitigating circumstances, Appellant relied on the previously adduced psychiatric testimony; two written psychiatric reports were also admitted into evidence, showing that Appellant is suffering from a chronic paranoid schizophrenic illness associated with alcoholic addiction. Finally, Appellant introduced into evidence two letters from him to his “wife” which indicated his feelings of persecution. The jury unanimously recommended that Appellant be sentenced to life imprisonment, but the trial court sentenced Appellant to death without entering the required written findings of fact in support thereof. However, this Court issued an order of remand directing the trial court to make written “findings in support of sentence of death,” which was done.

As a matter of great concern, this Court has examined carefully the aspect of the case raised in Appellant’s Motion to Suppress Crucial Evidence taken from a shack occupied by Appellant at the time of the crime. The building was a small structure formerly used as a chicken house on the rear of the premises owned by the Moorers. Three days following the murder and after borrowing money from his landlady, which was not repaid, Appellant, who had been previously convicted of felonies and has used two names other than his own, left town hurriedly on an obviously one-way trip north. Therefore, when police officers had traced the trail of blood to approximately 50 feet of the lot on which Appellant resided and, later, when the police had been informed that the man who had been living in the shack behind the Moorers had a seriously cut hand, it is our view that the consent given to the police by the landlady to examine the shack which she properly considered to be abandoned by Appellant was not a violation of the prohibition against unreasonable searches and seizures. He simply did not live there anymore and had joined his “common law wife” in Pennsylvania.

The principle defense worthy of serious consideration by this Court is the defensive allegation that at the time of the murder Appellant was legally insane under the M’Naghten rule, which prevails in Florida, that is, he did not know right from wrong. After the State-selected psychologist and court-appointed psychiatrist examined Appellant, at least three months after the crime their evaluations indicated that his mental and emotional health coupled with his constant and almost unbelievable consumption of wine on a daily basis, prevented him from knowing right from wrong. On the other hand, the record is clear that the Appellant watched a television show with his landlady on Friday night prior to the murder, at which time he was sober and apparently speaking coherently; that he then expressed an intention to attend a late motion picture and left the premises apparently intending to do so. The record also shows that the following day he was sitting with his landlady on her front porch only a few feet from his shack when police officers appeared in the area following the trail of blood caused by his bleeding hand; and that upon seeing the police officers he was sufficiently sane to leave the porch immediately, demonstrating an obvious recognition of his crime. Further, it appears in the record that thereafter within hours he had borrowed money from his landlady and, although normally wearing a hat, had rushed away from the premises bareheaded, leaving with personal effects for Pennsylvania where he was later apprehended. At the time of his arrest in Pennsylvania he gave evasive answers, which indicates that he was trying to hide his crime. The ultimate question of insanity, like all other factual questions, is left for determination by the jury which weighed all the evidence. The jury, while deliberating, returned to ask the court whether it could grant mercy. Having carefully and objectively evaluated this record, we feel that the jury had a sufficient basis to determine, either by the M’Naghten rule or some of the other standards currently prevailing in the United States, that the Appellant was sufficiently sane to answer to the penalty imposed by law.

Appellant’s second point on appeal relates to the trial court’s restriction of his right to peremptorily challenge a potential juror before that juror is sworn in chief. At the prosecutor’s request the court announced its policy toward the exercise of peremptory challenges prior to voir dire. The relevant colloquy follows:

“MR. YON: (Chief Prosecutor) Judge, what is your ground rule, if any, as to the timeliness of challenging prospective jurors, that you have to challenge after voir diring that particular jury, or as a result you can’t challenge that particular juroi; later?
“THE COURT: Yes, sir.
“MR. MOORMAN': (Defense Counsel) Your Honor, I would object to proceeding on that basis, particularly in light of the limited number of peremp-tories the Defense has been granted. I think it’s important that the Defense be able to view the panel as a potential jury rather than making a decision on each individual venireman.
We would request that the Court allow peremptory challenges to be made at anytime prior to the entire panel being sworn.
“THE COURT: (pausing) I don’t feel that’s necessary. We’ll proceed. Those that are not challenged at the conclusion of the questioning will be deemed acceptable.”

We find that the court’s policy directly contravenes the established case law, as well as Rule 3.310, R.Cr.P., which provides that a defendant may challenge a prospective juror before the juror is sworn to try the case. Nevertheless, we fail to find from an examination of the record that noncompliance with the rule resulted in prejudice to the Appellant. In addition, when the rule is considered in pari materia with the provisions of our harmless error statute, we fail to find that reversal is required. A careful review of the record convinces us that the evidence, though circumstantial, was so clear and convincing as to leave no reasonable doubt but that Appellant was guilty of the crimes for which the jury convicted him. Where the evidence of guilt is overwhelming, even a constitutional error may be rendered harmless.

Turning to the imposition of the death penalty by the Judge, we have considered the foregoing factual -background of testimony for and against Appellant; in weighing the aggravating and mitigating circumstances, the principle determinative fact directing the judgment of this Court is that the Appellant had a paranoid psychosis which was undenied and unrefuted, the degree of which no one can fully know. The record shows that for a long time Appellant had believed that persons were attempting to kill him and were following him and that he had other hallucinations. The testimony makes it clear that Appellant suffered a paranoid psychosis to such an extent that the full degree of his mental capacities at the time of the murder is not fully known, but it is reasonable to assume that this mental illness contributed to his strange behavior. Extreme emotional conditions of defendants in murder cases can be a basis for mitigating punishment. The jury had the benefit of seeing and hearing Appellant as he testified in the courtroom, and all twelve members of the jury thought that Appellant should not die in the electric chair. After carefully reviewing the record this Court has determined that the recommendation of the jury was correct. Appellant clearly had a mental deficiency. The court should have followed the jury’s recommendation for a life sentence.

It is true that the trial court erred in pronouncing the death sentence upon Appellant immediately after the jury’s recommendation for the imposition of a life sentence without supporting that sentence by specific written findings of fact as required by statute. We find, however, that this error was corrected when this Court issued its order remanding the cause to the trial court, which subsequently filed written “findings in support of sentence of death.”

Accordingly, the cause is remanded to the trial court with instructions to vacate the sentence of death and to impose a life sentence without eligibility for parole for 25 years.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD and HATCHETT, JJ., concur.

ROBERTS, J.,

concurs specially.

I would affirm the trial court since in my opinion there is no reversible error and the court performed within the orbit of its statutory authority.

SUNDBERG, J., concurs with an opinion, with which OVERTON, C. J., and ENGLAND, J., concur.

ENGLAND J., concurs in part and dissents in part with an opinion.

SUNDBERG, Justice

(concurring).

I concur in the result reached by the majority but feel obliged to state separately the precise reasons why. As recited in the majority opinion, in the defendant’s case there was substantial expert testimony by a psychiatrist appointed by the court and a clinical psychologist selected by the State that the defendant did not know the difference between right and wrong at the time he committed the offenses, the standard for insanity under the law as it exists in Florida today. There was lay testimony concerning the defendant’s conduct, by individuals who had the opportunity to observe the defendant during periods preceding and subsequent to the tragic event.

It is the law of Florida that all men are presumed sane, but where there is testimony of insanity sufficient to present a reasonable doubt of sanity in the minds of the jurors the presumption vanishes and the sanity of the accused must be proved by the prosecution as any other element of the offense, beyond a reasonable doubt. Hodge v. State, 26 Fla. 11, 7 So. 593 (1890); Farrell v. State, 101 So.2d 130 (Fla.1958); Parkin v. State, 238 So.2d 817 (Fla.1970); Byrd v. State, 297 So.2d 22 (Fla.1974).

In this Court the defendant maintains that the testimony of his expert witnesses created a reasonable doubt as to his sanity at the time of the offenses, thereby shifting the burden to the State to prove beyond a reasonable doubt his sanity. He argues that the State failed to meet this burden.

Pursuant to the obligation imposed by Rule 6.16, F.A.R., I have reviewed the evidence in this cause to determine if the interests of justice require a new trial. The evidence shows that the psychiatrist examined the defendant some 3y2 months after the offenses were committed and that his interview was approximately 60 minutes in duration. The doctor predicated his opinion in part upon statements given him by the defendant. His written opinion directed to the court prior to trial stated “that it would be extremely unlikely that [defendant] would know right from wrong” (emphasis supplied). During his testimony at trial the doctor diagnosed the defendant as a paranoid schizophrenic and unequivocally opined that he did not know the difference between right and wrong at the time of the offenses. He stated that his opinion would not be altered by the quantity of alcohol ingested by defendant on the date in question.

The clinical psychologist examined the defendant at the Pasco County jail some 41/2 months after the event. He spent approximately 6y2 hours with defendant administering an extensive battery of psychological tests and an additional 3 to 4 hours evaluating and interpreting the tests. It was his opinion that the defendant could not differentiate between right and wrong at the time the rape and homicide were committed. As elicited on cross-examination, however, the opinion of the psychologist was apparently grounded upon the premise that the underlying psychosis of paranoid schizophrenia became increasingly activated by use of alcohol, reducing the defendant’s capabilities to contain his impulses of violence and rage. A fair inference to be drawn from his testimony is that defendant could control the underlying psychosis when not inebriated. The expert witness conceded that the defendant knew from previous experiences that consumption of alcohol would likely bring about violent conduct on his part.

The lay testimony before the jury on the question of defendant’s sanity, however, indicated that he was in a violent mood on the day preceding the nighttime rape and homicide; that several days preceding the offenses defendant appeared very distraught to a convenience store employee from whom he purchased a large quantity of wine and a knife similar to the one discovered at his shack; that on the evening of the crime defendant watched television with his landlady and did not at the time appear intoxicated; that on the day following the crime defendant departed the front porch of his landlady’s house for his shack upon observing police officers searching for evidence in an area near the house; that defendant imbibed heavily on that day “to drink his troubles off”; that on the Monday succeeding the Friday night crimes defendant borrowed $3.00 from his landlady and abruptly left town for Pennsylvania where his common-law wife resided. Over the weekend prior to defendant’s departure an appeal was broadcast by local police officials seeking information concerning an individual with a cut hand.

Based on the foregoing evidence I could reasonably conclude that the defendant created a reasonable doubt as to his sanity at the time of the commission of the crimes and, further, that the State then failed to carry its burden of proving sanity beyond a reasonable doubt. But that is not the test. The test is whether or not the evidence was such that the jury could only have concluded that there was reasonable doubt of sanity and the absence of evidence sufficient to overcome that reasonable doubt. See Byrd v. State, supra. In Byrd this Court affirmed a conviction of rape when the defendant introduced the testimony of two psychiatrists establishing insanity and the State produced no expert testimony on the issue, rather only two lay witnesses whose testimony tended to rebut the testimony of the defendant to the effect that he was directed by supernatural voices to commit the crime.

In the case at bar the jury could have refused to accept the opinion of the psychiatrist on the grounds that his examination was of short duration occurring 3 and 1/2 months after the fact and that the opinion was predicated in part upon statements given by the defendant which the jury could have concluded were self-serving. Likewise the jury could have rejected the opinion of the psychologist on the basis that it was predicated on the intoxicated state of the defendant at the time of the act. The evidence of intoxication was at best conflicting. It is the province of the jury to resolve such conflicts. See Byrd v. State, supra, at page 25. Similarly, even if the testimony of defendant’s experts must be construed to compel a finding of reasonable doubt as to sanity, the jury was authorized to conclude from the lay testimony heretofore recited that the conduct of defendant prior and subsequent to the event, which pointed to sanity on his part, was sufficient to ovrecome the doubt created by the expert testimony.

An analysis of the cases on the subject of the defense of insanity makes it clear that it is peculiarly within the province of the jury to weigh the evidence adduced, both expert and non-expert, and make a determination accordingly. See especially Byrd v. State, supra. For this reason it was not error for the trial judge to submit the issue of defendant’s sanity to the jury for determination.

By just as strong an argument, however, it was error for the able trial judge to reject the recommendation of the jury on the subject of sentence. Two categories of mitigating circumstances to be considered by the jury under the provisions of Section 921.141(6), Florida Statutes, are:

“(b) The capital felony was committed while the defendant was under the influence of extreme or emotional disturbance.
******
“(f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.” (emphasis supplied)

Although under the strict M’Naghten rule standard the jury could have concluded from the evidence that the defense of not guilty by reason of insanity was not available to the defendant, it is crystal clear from the evidence that at the time of the offenses the defendant was under the influence of extreme mental or emotional disturbance and his capacity to conform his conduct to the requirements of law was substantially impaired. The conclusion is compelling that the jury’s unanimous recommendation of a life sentence was predicated on these mitigating circumstances. The evidence upon which the jury was entitled to conclude defendant was sane at the time of commission of the crimes was marginal at best. Because the matter was peculiarly within their function, their finding is not disturbed. Under these circumstances there should be some compelling reason for the trial judge to reject the jury’s unanirrious recommendation. It is the genius of the jury system that the jury may act as a tempering influence upon the unbending application of rules of law. It is clear to me that the exercise of such an influence is exactly what occurred in the case at bar. This jury represented the conscience and mores of the community in which the crimes were committed. They concluded that the penalty to be exacted by the community for the defendant’s conduct, in light of all the emotional forces which were operating upon him at the time of commission of the crimes, should be imprisonment for life rather than death. Their recommendation, in this case, is compelling.

Accordingly, I concur in the judgment of the majority to remand for imposition of a life sentence without eligibility for parole for 25 years.

OVERTON, C. J., and ENGLAND, J., concur.

ENGLAND, Justice

(concurring in part and dissenting in part).

While I concur with the majority’s resolution of two of the three issues discussed, and with the concurring opinion of Justice Sundberg, I am again compelled to record my dissatisfaction with the process by which we modify our rules on a case by case basis to achieve selective results. See Lavatt v. State, 316 So.2d 261 (Fla.1975) (concurring opinion).

Under Rule 3.310 of the Florida Rules of Criminal Procedure, which we promulgated, both the state and any criminal defendant are granted what appears to be an unconditional right to challenge each individual prospective juror before he or she is sworn to try the cause. This has been the “law” of Florida since 1860, and at least one of our district courts so firmly thought the Rule meant what it said that, in reliance on that Rule, it reversed a conviction which was fully justified by the evidence at trial. Walden v. State, 319 So.2d 51 (1st DCA Fla.1975). Today a majority of the Court amends that Rule to say that a challenge at certain stages must be accompanied by a showing of prejudice.

The practical effects of this change may well be to force trial judges (1) to swear juries before it is necessary to do so, with attendant inconvenience to the jurors and possible expense to the state, or (2) to conduct a special inquiry into “prejudice” at the time of some challenges made before the jury is sworn. In the absence of guidelines as to what is or is not prejudicial to one of the parties, trial judges desiring to avoid retrials will have a difficult time performing this newly-added task. It is precisely for these reasons that rules should be amended in rule-making proceedings, where all of the ramifications of a change can be explored.

      . Article V, Section 3(b)(1), Florida Constitution.

      . U.S.Const. Amend. IV.

      . Ellis v. State, 25 Fla. 702, 6 So. 768 (1889); Walden v. State, 319 So.2d 51 (Fla.App.1975); Shelby v. State, 301 So.2d 461 (Fla.App.1974); Knee v. State, 294 So.2d 411 (Fla.App.1974).

      . Section 924.33 Florida Statutes.

      . Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972).

      . Section 921.141(6), Florida Statutes.

      . Section 921.141(3), Florida Statutes; State v. Dixon, 283 So.2d 1, 8 (Fla.1973).


author: DOWNEY, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Beverly ANDERSON, Deceased, by and through her Administrator, Frank Anderson and Frank Anderson, Individually, Appellee.
    Nos. 75-990 and 75-1209.
    District Court of Appeal of Florida, Fourth District.
    April 23, 1976.
    Rehearing Denied June 2, 1976.

      Martin J. Sperry, Carey, Dwyer, Austin, Cole & Selwood, P. A., Fort Lauderdale, for appellant.
    D. Fredrico Fazio and Malcolm S. Stein-berg, Law Offices of Fazio & Dawson, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

Appellant State Farm Mutual Automobile Insurance Company issued two policies to appellee Frank Anderson providing uninsured motorist coverage for two separate motor vehicles. One policy contained limits of $10,000 for each person and $20,000 for each accident, while the other contained limits of $10,000 and $40,000.

In May 1974 while appellee Frank Anderson was operating one of said motor vehicles, he and his wife and son were involved in an accident with another automobile insured under a policy that had limits of $10,000 and $20,000. Appellee and his son were injured and appellee’s wife was killed. We glean from the record, briefs, and oral argument that the other party is willing to pay its full limits.

Since the limits of appellee’s policies exceed those of the tort-feasor, appellee demanded that appellant, as his insurer, submit to arbitration. Upon appellant’s refusal appellee filed a complaint to compel arbitration pursuant to § 682.02 F.S.1973. Issue was joined by appellant’s answer, and the matter culminated in an order of April 8, 1975, which held, 1) appellant was required to submit to arbitration, and 2) pursuant to § 627.727(2) (b) F.S.1973, appel-lees were entitled to “stack” the uninsured motorist coverage of both policies so that the coverage available to appellees is $20,000 and $60,000. The plenary appeal in #75-990 is to review the second part of that order.

The first question before us is whether § 627.727(2) (b) F.S.1973, authorizes a person injured by an underinsured third party tort-feasor to “stack” multiple policies or coverages owned by him. We answer the question in the affirmative.

One who purchases uninsured motorist coverage for several vehicles is entitled to “stack” or add together the combined coverage of his policies in determining the amount of uninsured motorist coverage available to him when he has a claim arising out of an automobile accident with one who is uninsured. See Tucker v. Government Employees Insurance Co., Fla. 1974, 288 So.2d 238, which specifically approved Sellers v. Government Employees Insurance Co., Fla.App.1968, 1 DCA, 214 So.2d 879. Appellant acknowledges the foregoing rule as it applies to uninsured motorist coverage provisions of § 627.727(2). However, appellant contends the coverage provided for in § 627.727(2) (b), euphemistically referred to as “underinsured motorist coverage,” should be treated differently because when the Sellers case was decided the legislature had not provided for under-insured motorist coverage. In addition, appellant contends that because § 627.-727(2)(b) contains the language “subject to the terms and conditions of such coverage,” an insured may stack multiple under-insured motorist coverages only if the policies involved expressly permit him to do so. But appellee aptly points out that when the Sellers case was decided, the predecessor or § 627.727(2), (§ 627.0851(2) F.S.1967) also contained the clause “subject to the terms and conditions of such coverage,” and the policies in question did not expressly provide for “stacking.”

Suffice it to say that we see no reason to treat the two coverages differently. By definition underinsured motorist coverage is uninsured motorist coverage, § 627.-727 (2) (b). And all such coverage is obtained at the additional expense of the policy holder. Thus, the insured should have the benefit of all of the protection which he purchased.

We think the intent of the legislature in adopting Section 4 of Chapter 73-180, Laws of Florida, was to prevent persons buying automobile insurance protection against personal injury caused by motorists who had no automobile liability coverage from losing that protection in the event the motorist inflicting injury has some liability insurance coverage but not enough coverage to adequately compensate the injured person. If we adopted the position appellant urges, we would be defeating that legislative intent. Under appellant’s position, a person who has sought to protect himself by obtaining additional uninsured motorist coverage would fare better to be injured by a motorist who has no liability coverage than by a motorist who has inadequate coverage. For example, under appellant’s theory if a person who has three policies of $15,000 and $30,000 is injured by a motorist who has only $15,000 and $30,000 coverage, the injured person would have only $15,000 in protection, regardless of the extent of his injuries. Whereas, if that person had been injured by a motorist without insurance he would have been entitled to recover up to $45,000.

Appellant’s second point is that even if it is proper to “stack” this type of coverage appellees are not entitled to any recovery against appellant because appellant is entitled to a set off of the tort-fea-sor’s policy limits against each of the ap-pellees’ two policies. And since appellee has only minimum limits of $10,000 on each policy, the tort-feasor’s minimum limits of $10,000 effectively nullify appellees’ coverage. As appellant puts it: set off first and then stack. On the contrary, we believe stacking should come before any set off. This resolution of the second point fully honors the mandate of § 627.-727(1) that the coverage in question shall be excess over but shall not duplicate the benefits available under the tort-feasor’s automobile liability coverage.

After the entry of the April 8th order, the trial court, upon appropriate motion, entered an order awarding appellees attorney’s fees and the costs of the § 682.02 proceeding. That order is the subject of an interlocutory appeal in #75-1209, which has been consolidated with the appeal in #75-990 for all appellate purposes.

Although the proceeding in the circuit court was the rather summary one authorized by § 682.03 F.S.1973, we perceive no reason which precludes the application of § 627.428(1) F.S.1973 to that proceeding. The latter statute authorizes the award of attorney’s fees to an insured “[ujpon the rendition of a judgment or decree by any of the courts of this state against an insurer and m favor of an insured . . . under a policy or contract executed by the insurer, . . . .” A claim under § 627.428(1) is of course not to be confused with a claim for attorney’s fees by an insured for services rendered in the conduct of arbitration since such fees (absent an agreement to the contrary) are not recoverable. § 682.11, F.S.1973. Since the final judgment in this case was in favor of the insured appellee and against the insurer appellant, the court properly awarded the appellee reasonable attorney’s fees.

Accordingly, the orders appealed from in both the plenary and interlocutory appeal are affirmed.

CROSS, J., and FOGLE, HARRY W., Associate Judge, concur.

      . See the title to Chapter 73-180, which provides, among other things, that the act is to provide “that uninsured vehicle coverage shall also be underinsured vehicle coverage. . .”

      . Codified as § 627.727(2) (b) F.S. 1973.

      .The act is clearly designed to remedy the inequities inherent in such decisions as Continental Insurance Co. v. Wallace, Fla.App., 3 DCA 1970, 233 So.2d 195.


author: PER CURIAM.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Janet JOHNSON, by and through her father and next friend, Robert Johnson, and Robert Johnson, Individually, Appellees.
    Nos. 75-1350, 75-1430.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.
    Walton, Lantaff, Schroeder, Carson & Wahl and Richard J. Thornton, Miami, for appellant.
    Vernis & Bowling and Ronald J. Raffony, Coconut Grove, for appellees.
    Before BARKDULL, C. J., HENDRY, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on the authority of State Farm Mutual Automobile Insurance Company v. White, Fla.App.1976, 330 So.2d 858; State Farm Mutual Automobile Insurance Company v. Anderson, Fla.App.1976, 332 So.2d 623; Government Employees Insurance Company v. Farmer, Fla.App.1976, 330 So.2d 236.


author: MILLS, Judge.

text:
    BOARD OF REGENTS of the State of Florida, a body corporate, for and on Behalf of the UNIVERSITY OF FLORIDA, OF the DEPARTMENT OF EDUCATION, DIVISION OF UNIVERSITIES, Petitioner, v. Mary W. HEUER and Career Service Commission of the State of Florida, Deparment of Administration, Division of Personnel, Respondents.
    No. Z-185.
    District Court of Appeal of Florida, First District.
    June 3, 1976.

      Ashmun Brown and Thomas S. Biggs, Jr., Gainesville, for petitioner.
    Larry Turner of Goldin & Turner, Gainesville, for Career Service Commission.
    Robert L. Shevin, Atty. Gen., Patricia Colleen Dunn and Betty Steffens, Asst. Attys. Gen., for respondents.
   MILLS, Judge.

The Board of Regents seeks review of an order of the Career Service Commission reinstating Heuer as an employee of the University of Florida with back pay.

The Board raises five questions:

1. Whether the Commission had jurisdiction of this case.

2. Whether the Commission had authority to hear the case.

3. Whether the Commission erred in receiving Dr. Hawk’s letter of 11 June 1975 into evidence.

4. Whether the Commission had authority to order the Board to grant sick leave and accrued annual leave to Heuer.

5. Whether the Commission member Tafel was disqualified from hearing this case.

On 23 September 1974, Heuer was granted a special leave of absence through 13 October for the purpose of seeking employment in North Carolina, where her husband was to be transferred. Under the terms of the leave of absence, Heuer’s position was to be available provided she returned to work on 14 October. On 7 October, Heuer was injured in an automobile accident. On 10 October, Heuer notified her employer that she would not be able to return to work on 14 October and asked if it would be necessary for her to clock in before going on sick leave status. She was informed that it would be unnecessary and was advised that the documents necessary to procure her sick leave would be taken care of by the employer. However, on 29 October, Heuer received a letter from her employer informing her that she was ineligible for sick leave and advising her that she must either report back to work on 1 November or sign the general leave letter which was enclosed. It was indicated that failure to comply with either alternative would be considered as a voluntary resignation. Because the general leave did not guarantee her a position upon her return or protect any of her other benefits, Heuer was reluctant to sign the letter, but did so under protest and in an attempt to retain her status as an employee at the University. The general leave thus granted was made retroactive to 14 October and was to expire 2 January 1975.

On 28 October, Heuer brought to her immediate supervisor a letter from Dr. Clayton Hawk, indicating that she had been under his care since 8 October and that the date of her return was guarded. At that time, Heuer was asked to sign release forms giving Dr. Hawk permission to release her charts to the University physician. Heuer asked to take the forms home and discuss the matter with her husband. Later the same day, Heuer called to give her assent but neither of her supervisors were available. Nor, did either individual return her call. The matter was thereafter dropped and no formal written request was made for Heuer to submit to a physical examination at University expense.

On 18 December, Dr. Hawk informed respondent that she could return to work and released her from his care. Heuer immediately telephoned her supervisor and advised that she was available for work. She was told that she no longer had a job with that department since she had voluntarily resigned. It was suggested that she report to the central personnel office on 2 January 1975. Heuer called the central personnel office the next day and did so repeatedly thereafter, but was unable to secure other employment with the University. On 8 January 1975, Heuer initiated her appeal to the Career Service Commission, protesting her termination and the loss of employee benefits.

The Board contends that Heuer abandoned her job by failing to return to work. Abandonment is not an appeal-able action under Section 110.061, Florida Statutes.

Heuer contends that she was dismissed. A dismissal is an appealable action under Section 110.061, Florida Statutes.

Based on conflicting facts, the Commission found that Heuer was dismissed from her job. There was substantial competent evidence to support this finding. Therefore, the Commission had jurisdiction to hear Heuer’s appeal.

The Board contends that Sections 120.52 and 120.57, Florida Statutes, required that this case be heard by a hearing officer assigned by the Division of Administrative Hearings. This contention is without merit.

Section 120.57(1) (a) (1), Florida Statutes, provides that a hearing officer assigned by the Division shall conduct all hearings except for hearings before agency heads. Section 120.57(1)(b)(3) and (4), Florida Statutes, excepts agency heads, who are acting in an adjudicatory capacity, from Division of Hearing Examiner requirements. Agency head is the collegial body in a department or other governmental unit statutorily responsible for final agency action. Section 120.52(3), Florida Statutes.

The hearing in this case was before the members of the Commission, the collegial body statutorily responsible for final action under Sections 110.041 and 110.061(2), Florida Statutes.

The Board urges that the Commission erred in receiving Dr. Hawk’s letter of 11 June 1975 in evidence, because he was not on the witness list, the letter was not under oath, and no explanation for his absence was offered before accepting the letter.

The Board read Dr. Hawk’s letter of 28 October 1974 into evidence. Thereafter, Heuer introduced the letter into evidence, and then offered the letter of 11 June 1975 into evidence. The 11 June letter was explanatory of the 28 October letter, and was received in evidence after explanation of Dr. Hawk’s absence by Heuer’s attorney.

Section 22A-10.06G, Personnel Rules and Regulations of the Career Service System, provides that written testimony of a witness may be submitted in the form of a sighed statement with an explanation as to why the witness could not appear in person. Not only did the Board open the door to introduction of the 11 June letter by reading the 28 October letter into evidence, but it was properly received in evidence under Section 22A-10.06G.

Although the Commission does not have authority to award sick leave or accrued annual leave, under the circumstances of this case, it was reasonable and fair for it to consider these matters in determining when back pay was due Heuer. The Commission did no more than require the Board to give Heuer that which was hers. The Board was required to do no more than pay Heuer sick leave and accrued annual leave which she had accumulated through her years of employment by the Board. She received no more than that to which she was entitled without regard to the issue of whether she should be reinstated to her job.

At the time of the hearing, Lee A. Tafel sat as a member of the Commission, and joined in its ultimate decision. The Board contends that Tafel was an officer of the Association of State, County and Municipal Employees, AFL-CIO, and that shortly after the Commission’s decision was rendered, handbills appeared on the campus, and an advertisement appeared in a newspaper circulated on the campus, in which the Career Service Employees Federation, also affiliated with the AFL-CIO, claimed credit for Heuer’s victory, and stated that it had financially supported her in this case. The Board was unaware of this involvement until after rendition of the decision. It attaches copies of the two articles to its petition, and contends that the Commission’s decision should be quashed because of a conflict of interest between Tafel and the union.

Heuer responds by attaching to her brief a later newspaper article in which Heuer denies the union statements, and the union states that its prior ad was misleading to imply that total financial support came from it. Heuer’s attorney also attaches an affidavit that he has not received any compensation from Heuer or anyone else and that he was employed by Heuer only.

None of the facts or articles relied upon by the Board or Heuer are a part of the record presented to us for review. The ethical and disqualification issues raised by the Board were not presented to the Commission for its consideration, although this could have been done before the time had run for the filing of its petition for review. For these reasons, we cannot properly consider this issue.

The petition for review is denied.

BOYER, C. J., and McCORD, J„ concur.


author: SCHEB, Judge.

text:
    Michael WELLS, Appellant, v. AETNA INSURANCE COMPANY et al., Appellees.
    No. 75-1030.
    District Court of Appeal of Florida, Second District.
    May 21, 1976.
    Rehearing Denied June 23, 1976.
    David A. Maney, of Gordon & Maney, and Mulholland & Hapner, Tampa, for appellant.
    Donald M. Spangler, of Marlow, Mitzel, Ortmayer & Shofi, and Macfarlane, Ferguson, Allison & Kelly, Tampa, for appel-lees.
   SCHEB, Judge.

Appellant/plaintiff, Michael Wells, was injured in successive automobile accidents; first by an insured motorist and subsequently by an uninsured motorist. It is difficult to apportion Wells’ injuries between the two accidents and affix liability between the two tortfeasors. Wells carries uninsured motorist coverage with the appellee/defendant, Aetna Insurance Co. The issue on this appeal is whether Wells can join Aetna in the law action against the insured motorist.

Plaintiff Wells filed a negligence suit against Oliva Tobacco Company, owner; its insurer; and Martin E. Oliva, as driver of the automobile which struck Wells’ vehicle on or about June 5, 1973. Wells joined as a defendant Aetna Insurance Company under his uninsured motorist coverage, contending that he was struck by Botsbord, an uninsured motorist on August 5, 1973.

The trial court held the plaintiff to be bound by the arbitration provision of his policy with Aetna and granted Aetna’s motion for dismissal. We affirm.

We are in accord with the principle announced in Mullis v. State Farm Mutual Automobile Insurance Co., Fla.1971, 252 So.2d 229, that an uninsured motorist’s carrier must afford its policyholder the same level of protection as if the uninsured motorist had himself purchased liability coverage. In effect, the principles of law appropriate to determination of liability and damages apply; however, arbitration is specified as the method to determine both liability and damages.

Plaintiff Wells cites Lawrence v. Hethcox, Fla. 1973, 283 So.2d 41, for the proposition that joinder should be permitted where successive accidents are caused by separate acts of negligent tortfeasors resulting in injuries not readily separable or susceptible to being apportioned. In Lawrence each of the two separate causes of action sounded in tort. Here, the original cause of action sounded in tort, while in the latter cause of action Wells sought to enforce contractual rights against Aetna. Admittedly, those rights will be determined on the basis of applicable tort law, but to require a carrier furnishing uninsured motorist coverage to be joined in a law action ignores the requirement of arbitration as contemplated by the policy and the Florida Statutes. See Ch. 682, Florida Statutes; Ebens v. State Farm Mutual Automobile Insurance Co., Fla.App.3d 1973, 278 So.2d 674; Sun Insurance Office v. Phillips, Fla.App.2d 1970, 230 So.2d 17.

Wells may sue Botsford, the uninsured motorist. Presumably, as held in Lawrence, he could join Botsford as a defendant in his suit against Oliva and its insurer. He has not elected to do this. Rather, he is seeking here to recover against his own carrier, Aetna, on basis of his contractual coverage. Absent any waiver or estoppel, Aetna has the right to have its liability determined by arbitration as it contracted to do. And, while Wells contends he is deprived of rights he would have had if his injuries resulted from two insured motorists, we simply say that Wells contracted with Aetna to treat his claim involving an uninsured motorist differently from the traditional method of litigating a tort claim. He is bound by that contract.

Affirmed.

McNULTY, C. J., and GRIMES, J., concur.

      . While we have not been furnished a copy of the relevant arbitration provision in Wells’ policy, counsel for the parties are in accord that it establishes the arbitration procedures which are standard in uninsured motorist coverage.