text:
    The UNITED STATES of America, Appellant, v. George L. MOXON et al., Appellees.
    No. 74-1230.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1975.
    Robert W. Rust, U. S. Atty., Miami, and Scott P. Crampton, Asst. Atty. Gen., and Gilbert E. Andrews, Karl Schmeidler, and George G. Wolf, Department of Justice, Washington, for appellant.
    Larry L. Adair of Walden & Dubow, Dania, for appellee, Howard E. Burgess, individually and doing business as “Howie” Burgess Realtor.
    Alan H. Lubitz, of Williams, Salomon, Kanner & Damian, Miami, for appellee, Williams, Salomon, Kanner & Damian.
   PER CURIAM.

Appellant The United States of America seeks reversal of a final judgment entered in a suit for declaratory decree wherein the trial court determined priorities to a fund in the possession of appellee, Moxon.

The final judgment recites that it is based upon a consideration by the court of “all of the pleadings, papers and evidence . ” Appellees contend, and we agree, that absent a transcript of the evidence presented at final hearing or a stipulated statement pursuant to Rule 3.6(b), F.A.R., error cannot be demonstrated.

Accordingly, affording the judgment appealed from the presumption of correctness, we affirm said judgment.

Affirmed.

CROSS, MAGER and DOWNEY, JJ„ concur.


source: Caselaw Access Project

author: CROSS, Judge. MAGER, Judge

license: Public Domain

text:
    Daniel CRAWFORD, Appellant, v. STATE of Florida, Appellee.
    No. 74-1439.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1975.

      Richard L. Jorandby, Public Defender, and Elliot R. Brooks and Channing E. Brackey, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert B. Breisblatt, Asst. Atty. Gen., West Palm Beach, for appellee.
   CROSS, Judge.

Appellant-defendant, Daniel Crawford, appeals a judgment of conviction and the imposition of sentence for the offense of assault with the intent to commit robbery. We reverse.

Appellant-defendant, Daniel Crawford, was charged by amended information with the robbery of one Hubert Dempsey Hardy. Trial was by jury. The jury found the defendant guilty of assault with the intent to commit robbery. The trial court adjudged the defendant guilty and sentenced him to fifteen years in prison. Defendant’s motion for a new trial was denied by order of the trial court. It is from the judgment and sentence that the defendant appeals.

At trial the victim of the alleged robbery, Hardy, testified on direct examination to the following events: late in the evening of July 6, 1974 Hardy picked up a black female in the northwest section of Fort Lauderdale hoping to engage her in sexual intercourse; Hardy and the female returned to her apartment; after Hardy tendered $10 for the female’s services, a black male wielding a weapon, whom Hardy identified as the defendant, came out of the apartment bathroom and forced Hardy to turn over money remaining in his wallet; the female went out to Hardy’s automobile to search for more money but upon returning to the apartment indicated that she had found none; when Hardy was released by the defendant, he returned to his automobile and found missing over $300 which he had taken from his wallet and hidden in the automobile before entering the female’s apartment. At the conclusion of the state’s interrogation, Hardy was subjected to rigid cross-examination by the defendant in an effort to destroy his credibility as a witness. Adduced was testimony inconsistent with that given by Hardy on direct examination and inconsistent with statements given by Hardy prior to trial. Hardy also admitted he was a convicted felon.

The state subsequently called to the stand Robert L. Whipple, an officer for the Fort Lauderdale Police Department, who was involved in the investigation of Hardy’s complaint against the defendant. Upon re-direct examination, the following took place:

“Q. You spoke with Mr. Hardy that evening ?
“A. Yes, sir, I did.
“Q. Was he cooperative with you ?
“A. Not really. He was, and he wasn’t.
“Q. In what way wasn’t he ?
“A. Well, at first, he didn’t seem to want to say exactly the reason why he was over in the northwest area at this particular time of night. I questioned him as to exactly why because I advised him he would have to take an examination—
“MR. KRATHEN: Objection. At this time, I would move to have the jury excused before this officer goes any further in his answer.
“THE COURT: Overruled and denied.
“Q. Would you continue your answer, please.
“A. I advised him that under the circumstances, as he was claiming such a large loss, that he would have to take an examination, polygraph examination, to check the validity of this complaint.”

The state thereupon rested its case. The defendant moved for a mistrial. The trial court denied the motion.

The defendant took the stand in his own behalf and testified to certain facts which, if believed, contradicted Hardy’s testimony and completely vindicated the defendant of the crime charged.

On appeal, the defendant contends the trial court erred in admitting into evidence the above reference to the polygraph examination.

It has been consistently held that neither the result of a polygraph examination nor any allusion to such examination to infer a certain result is admissible at trial. Sullivan v. State, 303 So.2d 632 (Fla.1974); Anderson v. State, 241 So.2d 390 (Fla.1970); Kaminski v. State, 63 So.2d 339 (Fla.1953); Dean v. State, 325 So.2d 14 opinion filed August 28, 1975, 1st Dist.Ct. of Appeal Case; State v. Curtis, 281 So.2d 514 (Fla.App.1973); State v. Brown, 177 So.2d 532 (Fla.App.1965); Johnson v. State, 166 So.2d 798 (Fla.App.1964).

Turning to the instant case, Hardy was the only eyewitness to the crime allegedly committed by the defendant called by the state to testify at trial. The state’s entire case against the defendant obviously depended upon Hardy’s credibility. Defendant, in cross-examining Hardy, severely impaired Hardy’s credibility by eliciting testimony inconsistent with prior statements made by Hardy and an admission that Hardy had previously been convicted of a felony. In an attempt to rehabilitate Hardy’s credibility, the state elicited, over strenuous objection by the defendant, testimony from Officer Whipple that the police wanted Hardy to take a polygraph examination to ascertain the validity of his complaint against the defendant. The unmistakable inference of Officer Whipple’s testimony was that Hardy had taken the polygraph examination, and the results of the examination indicated that Hardy’s complaint against the defendant was true. This inference had the effect of rehabilitating Hardy’s credibility to the prejudice of the defendant.

Under the facts and circumstances of this case, the admission of Officer Whipple’s testimony concerning the polygraph examination was harmful to the defendant, and therefore reversible error. Accordingly, the judgment and sentence is reversed and the cause remanded for new trial.

Reversed and remanded for new trial.

DOWNEY, J., concurs.

MAGER, J., dissents, with opinion.

MAGER, Judge

(dissenting):

With all due respect to the majority, it is my opinion under the facts and circumstances of this case that the admission of testimony concerning the polygraph examination was, at the most, harmless error.

In order to characterize the witness’s reference to a polygraph examination as prejudicial and hence reversible error, it is necessary to indulge in both conjecture and the pyramiding of inferences. See Sullivan v. State, Fla.1974, 303 So.2d 632; Johnson v. State, Fla.App.1964, 166 So.2d 798.

The subject testimony merely made reference to a polygraph examination and did not indicate whether the witness had taken such an examination or the results of such examination. To conclude that the mere reference to a polygraph examination is reversible error presupposes that there exists a reasonable inference that the witness took and passed a polygraph test. The witness’s statement suggests no inference whatsoever; and by no stretch of the imagination could such statement serve to have rehabilitated the credibility of the witness to the prejudice of the defendant. We ought not to strain such statements through a filter of probables and improba-bles in order to ascertain the existence of prejudice.

As the Supreme Court pertinently observed in Sullivan v. State, supra, “. . . the testimony in question does not naturally lead to one interpretation rather than another ... It all becomes too tenuous to support harmful error . . . ”. Similarly, as the Second District concluded in Johnson v. State, supra, at p. 805:

“. . . [T]he mere fact that the jury is apprised that a lie detector test was taken is not necessarily prejudicial if no reference as to the result is raised or if any inferences that might be raised as to the result are not prejudicial. ...” (Emphasis supplied.)

Therefore, it is my opinion that the judgment and sentence should be affirmed.


author: DOWNEY, Judge.

text:
    TECH CORPORATION, Appellant, v. The PERMUTIT COMPANY, a division of Sybron Corporation, a New York Corporation, and Petersen Construction Co., a/k/a Peabody Water Resources, Inc., Appellees. PEABODY PETERSEN CO., f/k/a Petersen Construction Co., a/k/a Peabody Water Resources, Inc., Appellant, v. The PERMUTIT COMPANY, a division of Sybron Corporation, a New York Corporation, and Tech Corporation, a Florida corporation, Appellees.
    Nos. 74-1358, 74-1388.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1975.

      E. Randolph Bentley, Lakeland, for appellant Tech Corp.
    Robert L. Young, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Orlando, for appellant/appellee Peabody Petersen Co.
    David J. Fuller, Akerman, Senterfitt, Eidson & Wharton, Orlando, for appellee The Permutit Co., and others.
   DOWNEY, Judge.

Appellee, The Permutit Company, sued appellant Peabody Petersen Company for breach of contract, and Peabody filed a third party claim against appellant Tech Corporation. The trial court entered a judgment for appellee and against both Peabody and Tech, jointly and severally, for the sum of $31,973.38, together with interest. The judgment included $17,020 lost profit, $2,164.60 for materials, $2,766.72 for labor, and $10,022.06 for reasonable overhead. Both appellants attack that judgment in these consolidated appeals. In addition, Tech attacks the third party judgment holding it liable to idemnify Peabody.

We have considered all of appellants’ contentions and find only two of them warranting discussion. The first is appellants’ joint assertion that the trial court erred in its assessment of damages, particularly with reference to the inclusion of overhead.

There is no dispute among the parties that if appellee is entitled to recover damages in this case, § 672.708(2), F.S.1973, is applicable and appellee is entitled to recover its lost profit, including reasonable overhead. The problem in this case is trying to determine whether the final judgment included more than one award for overhead.

The proof of lost profits and the allocation of overhead to a specific job is at best difficult. The proof concerning the amount of lost profits need only be reasonably certain to permit recovery thereof. Stuart Kitchens, Inc., v. Stevens, 248 Md. 71, 234 A.2d 749 (1967). However, our careful study of the record reveals that the evidence in support of the claim for lost profit (including reasonable overhead) is so vague and confusing as to be inadequate to support the trial judge’s finding. Thus, we believe a new trial on the question of damages is indicated because the proof as to appellee’s loss of profit (including reasonable overhead) was not reasonably certain.

The other question which we feel called upon to treat is the allowance of interest on any damages awarded.

The trial court found appellee was entitled to interest upon the damages award “from September 10, 1969, the date upon which this Court finds Permutit would have been entitled to all of its funds from Buyers had the contract in fact been performed.” Since the court found that damages were due as of a date certain, we believe the allowance of interest from that date is supported by English And American Ins. Co. v. Swain Groves, Fla.App. 1969, 218 So.2d 453, and United Bonding Insurance Company v. Crum, Fla.App.1970, 239 So.2d 600. In the Swain Groves case this court stated:

“In actions ex contractu it is proper to allow interest at the legal rate from the date the debt was due. The fact that there is an honest and bona fide dispute as to whether the debt is actually due has no bearing on the question. If it is finally determined that the debt was due, the person to whom it was due is entitled not only to the payment of the principal of the debt but also to the interest at the lawful rate from the due date thereof. Parker v. Brinson Construction Company, Fla.1955, 78 So.2d 873. Whenever a verdict liquidates a claim and fixes it as of a prior date, interest should follow from that date. Everglade Cypress Company v. Tunnicliffe, 1933, 107 Fla. 675, 148 So. 192.”

The judgment appealed from is affirmed insofar as the questions of liability are concerned and reversed insofar as the award of damages is concerned.

Reversed and remanded for a new trial on the issue of damages.

CROSS and OWEN, JJ., concur.


author: PER CURIAM. MAGER, Judge

text:
    In re the MARRIAGE OF Doris J. SCABAROZI, Appellant, v. Robert SCABAROZI, Appellee.
    No. 75-188.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1975.
    Charles M. Harris, Crofton, Holland, Starling, Harris & Severs, Titusville, for appellant.
    William E. Weller, Cocoa Beach, for ap-pellee.
   PER CURIAM.

Affirmed.

WALDEN, C. J., and CROSS, J., concur.

MAGER, J., dissents, with opinion.

MAGER, Judge

(dissenting) :

While I am of the opinion that the trial court possessed the requisite jurisdiction to enter a custody award I am inclined to believe, from a reading of the record, that the trial court’s order denying a modification of the custody award was induced by an erroneous view of the law. Town of Medley v. Seminole Rock Products, Inc., Fla.App.1962, 138 So.2d 534.

The record reflects that the petitioner husband filed a petition for dissolution of marriage against respondent wife seeking permanent custody of the parties’ minor child. Petitioner alleged that he was a Florida resident; that the parties had been married in Pennsylvania and that the child was presently in the custody of respondent in Pennsylvania having been removed from the parties’ home against the will of petitioner. The respondent wife filed an answer denying the allegations and a coun-terpetition seeking dissolution and permanent custody further alleging that the respondent wife was a resident of the State of Florida prior to the filing of her counter petition.

Prior to the final hearing the petitioner husband went to Pennsylvania and without the knowledge and consent of the respondent wife removed the child and returned to Florida. Subsequently, the wife returned to Florida and filed a petition for temporary custody which was granted in her favor. The wife returned to Pennsylvania with the minor child.

Apparently there was an understanding that the wife would present herself and the minor child at the time of final hearing. However, at the time of final hearing neither the wife nor the minor appeared. The court proceeded to take testimony from petitioner husband and entered a final judgment dissolving the marriage. The court’s judgment noted the absence of respondent and the minor child without any reasonable cause having been given as to why respondent did not appear. Permanent custody of the minor child was awarded to the petitioner the court having found such custody to be in the best interests and welfare of the minor and the court having specifically found that the evidence reflected respondent “to be a woman emotionally unable to face any crisis in her own household and had neglected the real needs of her child”.

The respondent was directed to deliver the minor child to the petitioner either in Florida or in Pennsylvania. The respondent sought and obtained an order from a Pennsylvania court confirming her right to custody of the minor child. However the petitioner secured custody of the minor by going to Pennsylvania and removing the child from the state returning to the State of Florida.

Subsequently, the wife returned to Florida and filed a motion to amend the final judgment which, in effect, was a motion to modify the court’s award of custody to the petitioner.

A review of the facts in the record as reflected in part by the foregoing, reveals allegations by both parties that they were residents of Florida and demonstrates that, both parties were before the court for the purpose of dissolution and the award of custody. More particularly, the presence of the minor child before the Florida court at the time of the entry of the temporary award of custody was sufficient for the court to have acquired jurisdiction to enter the custody order even though such jurisdiction was during an ancillary phase of the proceeding; such jurisdiction continued until final disposition. Rhoades v. Bohn, Fla.App.1959, 114 So.2d 493; but see Smith v. Davis, Fla.App.1962, 147 So. 2d 177.

At the hearing held pursuant to respondent’s motion to amend the final judgment, evidence was presented to show that respondent did not appear at the final hearing at which custody was awarded because of advice given respondent by her Florida and Pennsylvania counsel; respondent was advised that her appearance at that hearing was unnecessary. Additionally, respondent claimed that she did not have the financial means to make the appearance.

Although counsel for petitioner sought to restrict the hearing to matters that occurred subsequent to the final judgment the court permitted petitioner to present evidence relating to matters as they existed at the time of the final hearing. In this regard the court observed:

“THE COURT: Well, I frankly am concerned about one thing. That is, the feeling also existed at the hearing- — on the one side — that the Court’s been mislead. It may res judicata, but I am concerned about the fact that I’ve only heard one side of the case.”

The respondent presented evidence contradicting the evidence previously presented by petitioner at the final hearing and attempted to refute the finding made by the trial court as to her instability and neglect in an effort to demonstrate her fitness as a mother.

The court’s commendable concern for the best interests and the welfare of the child was vividly demonstrated by the fact that the court proceeded to conduct what amounted to a hearing de novo on the issue of custody and before making any final determination entered an order directing the Division of Family Services in Florida and Pennsylvania to make an investigation for the purpose of submitting a report to the court. Their reports ultimately submitted clearly reflected the fitness of respondent and the finding of a positive environment for the minor child equal to that of the petitioner. The court nevertheless entered an order denying the modification of custody and confirmed its prior order in favor of petitioner husband.

It appears from a review of the record that the trial court was proceeding solely on the basis that unless there was a substantial change in conditions and circumstances since the date of the custodial decree an original award of custody would not be altered. See Doran v. Doran, Fla. App. 1968, 212 So.2d 100, 105. In this regard I am not at all certain that the respondent carried the burden of showing a substantial change in circumstance to warrant a change in custody and to that extent the trial court’s decision is correct. But there is another recognized basis for altering an award of custody, once made, quite apart from a substantial change in conditions. As pointed out in Klein v. Klein, Fla.App. 1967, 204 So.2d 239, 241:

“It has been held that the rule to be applied on a petition to modify a decree for custody is that while the welfare of the children is of paramount concern, a final decree awarding custody to one parent, being res judicata of the matters involved, and known at the time of the decree, should not be modified to change the custody to the other parent, except upon materially changed circumstances, or for material facts unknown to the court at the time of the decree, and then only when it is shown to be essential to the welfare of the child.” (Emphasis supplied.)

See also Doran v. Doran, supra; Smothers v. Smothers, Fla.App. 1971, 257 So.2d 591, writ dischg 281 So.2d 359 (Fla.1973).

The record clearly reflects and the judge himself recognized that he had heard only one side of the case and was concerned about the doctrine of res judicata. Moreover, the record demonstrates clearly that there were material facts not known to the court at the time of the decree, as reflected by the evidence presented at the modification hearing and as contained in the subsequent investigative reports prepared by the divisions of family services. If the court had this information at the time of the final hearing the determination of custody might have been different — but then again, it might have been the same. The point simply is that the court did not have all of the material facts until the modification hearing and at that point may have been of the view that its authority was limited to a showing of substantial change in circumstances. To that extent the court was induced by an erroneous view of the law.

It seems to me, that the best interests and welfare of the child being paramount, the order under review should be reversed and remanded for further consideration by the trial court in light of the principles expressed by this court in Doran v. Doran, supra.


author: OWEN, Judge.

text:
    TOWN OF PALM BEACH, a Florida Municipal Corporation, et al., Appellants, v. STATE of Florida ex rel. Milton F. STEINHARDT, Appellee.
    Nos. 75-1059, 75-1266.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1975.
    H. David Faust and Arthur G. Wroble of Burns, Middleton, Farrell & Faust, Palm Beach, for appellants.
    Michael B. Davis and David F. Crow, of Walton, Lantaff, Schroeder, Carson & Wahl, West Palm Beach, for appellee.
   OWEN, Judge.

This is another episode in the continuing difficulties between appellant and appellee.

Appellee, a developer constructing a condominium in Palm Beach, filed a petition for writ of mandamus to require appellant, Town of Palm Beach, to issue him a permit to complete the parking lot of his condominium project. The trial court issued a peremptory writ of mandamus on March 7, 1975. The Town filed a timely notice of appeal.

While the appeal was still pending in this court, Mr. Steinhardt filed in the trial court, in the same proceeding, a motion for an order holding the Town of Palm Beach in contempt, alleging that the Town officials were harassing him at his condominium project in an attempt to coerce him into abandoning his rights under the peremptory writ. Mr. Steinhardt subsequently amended this motion to request an order restraining the Town of Palm Beach from engaging in this alleged harassment. Essentially, as appellee concedes in his brief, the amended motion constituted a new, separate and independent cause of action, unrelated to the writ of mandamus theretofore issued. The Town’s objection that the court lacked jurisdiction, because exclusive jurisdiction had been transferred to the appellate court upon the Town’s filing notice of appeal, was overruled. The court took testimony and thereafter entered its restraining order against appellant. Subsequently, the court entered an order taxing certain costs against the Town. Appeal No. 75-1059 seeks review of the restraining order. Appeal No. 75-1266 seeks review of the order taxing costs. These appeals have been consolidated for our consideration. It is our opinion that both orders must be reversed.

When appellee’s mandamus action terminated in the entry of a final judgment by which the writ was issued, and the time allotted in the Florida Rules of Civil Procedure for altering, modifying or vacating that judgment expired, the trial court’s jurisdiction in the cause also terminated, Shelby Mutual Insurance Company of Shelby, Ohio v. Pearson, 236 So.2d 1 (Fla.1970), except for the purpose of enforcing the judgment. Mabson v. Christ, 96 Fla. 756, 119 So. 131 (1928); 19 Fla. Jur., Judgments and Decrees, § 539 (1958). When appellant filed its notice of appeal, the trial court’s jurisdiction to enforce the judgment was foreclosed by virtue of Rule 5.12(1) F.A.R. which provides for the automatic stay of judgments appealed by the State or any of its political subdivisions. See, City of Miami v. City of Coral Gables, 233 So.2d 7, 41 ALR3rd 1000 (3rd DCA Fla.1970). But even if the Town had not undertaken an appeal, automatically invoking Rule 5.12 F.A.R., and the judgment had remained in full force and effect, the court would have lacked jurisdiction to enter the restraining order herein appealed because the object of that order was not the enforcement of the original judgment, i. e., to require the Town to issue the paving permit. Rather, appellee quite clearly was seeking, in the form of a restraining order, new and independent relief which, although a proper subject for a court of equity upon the filing of an appropriate complaint and the issuance and service of process, was not a proper subject for post-judgment pleadings in the mandamus action.

We hold that the trial court lacked jurisdiction to entertain, in the mandamus action by post judgment motion, a new, separate and independent cause of action between the parties. The Town’s motion to dismiss for lack of jurisdiction should have been granted. The restraining order of May 15, 1975 (No. 75-1059) and the subsequent order taxing costs against appellant (No. 75-1266) are severally reversed and this cause is remanded with directions to dismiss Mr. Steinhardt’s postjudgment motion for a restraining order without prejudice to seek such relief in a separate and independent action.

Reversed and remanded.

MAGER, J., and STRAWN, DAVID U., Associate Judge, concur.

      . Town of Palm Beach v. State of Florida ex rel. Steinhardt, 318 So.2d 193 (4th DCA Fla.1975), in which this court quashed the peremptory writ.


text:
    KELLER INDUSTRIES, INC., Petitioner, v. David M. MOSS, Respondent.
    No. 75-847.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1975.
    Allen P. Reed, of Levine, Helman & Reckson, Miami, for petitioner.
    No appearance for respondent.
   DOWNEY, Judge.

Our consideration of the record and petitioner’s brief convinces us that certiorari should not be granted because petitioner has not demonstrated that full, adequate and complete relief will not be available to it by plenary appeal after final judgment. Siegel v. Abramowitz, Fla.App.1975, 309 So.2d 234.

Accordingly, the petition for writ of cer-tiorari is denied.

CROSS and OWEN, JJ., concur.


text:
    Astley TUCKER, Petitioner, v. Dr. James DIODATO, Superintendent, South Florida State Hospital, Respondent.
    No. 75-1091.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1975.
    Warner S. Olds, Public Defender, and Lawrence L. Korda, Asst. Public Defender, Fort Lauderdale, for petitioner.
    Eric Haugdahl, Tallahassee, for State of Florida Dept, of Health and Rehabilitative Services.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert B. Breisblatt, Asst. Atty. Gen., West Palm Beach, for amicus curiae.
   PER CURIAM.

Petition for habeas corpus is dismissed.

CROSS and OWEN, JJ., concur.

MAGER, J., concurring- specially, with opinion.

MAGER, Judge

(concurring specially) :

The petitioner, Astley Tucker, has properly filed a petition for the issuance of a writ of habeas corpus contending that his detention in the South Florida State Hospital is unlawful and constitutes “an illegal deprivation of liberty”. Clark v. State, Fla.App.1960, 122 So.2d 807.

It appears from the pleadings that the trial court appointed a special master for the purpose of conducting and presiding over a hearing involving an involuntary hospitalization under chapter 394, commonly referred to as the Baker Act. In particular, the trial judge appointed a special master to conduct such hearing with respect to the petitioner and as a result the master entered an order entitled “Order for Involuntary Hospitalization”, which order was subsequently “accepted by the court and ratified and confirmed”.

Essentially, it is the petitioner’s contention that no authority exists for the appointment of a special master to conduct a hearing for involuntary hospitalization under the Baker Act; nor do the provisions of such act empower a special master to order involuntary hospitalization pursuant to the conduct of such hearing.

If the petitioner’s detention was solely on the basis of an order of a special master I would agree with the latter contention of petitioner. However, the added ingredient of a court order accepting, ratifying and confirming the order of the special master negates the suggestion of an invalid detention.

A review of Part 1 of chapter 394, known as “The Florida Mental Health Act” or “Baker Act”, reveals a provision relating to involuntary hospitalization (§ 394.-467, F.S.). The import of sec. 394.467 is that it provides a procedure for the hospitalization of a person who is mentally ill and because of his illness is likely to injure himself or others or is in need of care and, treatment and lacks sufficient capacity to seek voluntary hospitalization. Involuntary hospitalization is for a period not to exceed six months.

The involuntary hospitalization procedure is initiated by the action of an administrator of a designated receiving facility resulting in the examination of the prospective admittee by two physicians. The procedure contemplates notice and hearing; however the hearing may be waived by the patient, his guardian or representative. The procedure also provides for the appointment of an attorney if the patient cannot afford one.

Additionally, under the language of sec. 394.467 the holding of the hearing, appointment of counsel and the ultimate entry of an order for commitment to a treatment facility, involves action by the “court” and a “judge” thereof. According to the provisions of sec. 394.455(21) and (22), “court” is defined to mean “the circuit court” and the word “judge” means “a judge of the circuit court or the judge designated to act under this act by the chief judge of a circuit”.

While sec. 394.467 makes no specific reference ,to the appointment or use of “masters”, the provisions of Rule 1.490, F.R.C.P., specifically provide for the appointment by the court of “special masters” for “any particular service required by the court”. It is the respondent’s position that Rule 1.490, particularly the aforementioned quoted language, provides the necessary authorization for the appointment and use of special masters in connection with involuntary hospitalization procedures.

A review of case law, treatises and law review articles dealing with the subject matter of masters and hospitalization of incompetents fails to reflect any expression whatsoever pertaining to the authority for and the appointment of a special master in an incompetency proceeding. The novelty or uniqueness of the proposition however does not suggest its impossibility, impropriety or invalidity.

The historical basis for and the use and authority of special masters is fully discussed in the various treatises and case law. See 28 Fla.Jur., References, p. 83 et seq.; 66 Am.Jur.2d, References, p. 475 et seq.; Slatcoff v. Desen, Fla.1954, 74 So.2d 59; Bell v. Bell, Fla.App.1975, 307 So. 2d 911. Basically, the reference of an action to a special master (as distinguished from a general master) was a consequence of the inherent power of the court, specifically a court of equity; such reference contemplated limited service by the appointee for a particular aspect of the cause. See Slatcoff v. Dezen, supra; see also Rule 1.490(b).

It does not appear to have been the intention, either under the common law or the rules of procedure for the special master to hear “the entire case”. In particular, the following observations made by the Supreme Court in Slatcoff are persuasive and instructive:

“From our study of the history of masters in the judicial system and from our examination of statutes enacted from time to time, and the present Court rules, having at all times regard for the constitutional provision vesting unqualified power in the Court, we conclude that special masters may be appointed to serve in a ministerial capacity to perform a ‘particular service,’ if the chancellor in his discretion decides that such action is necessary to aid the court in an accurate and expeditious determination of the cause. The validity of these appointments for limited service will not be affected by the want of agreement on the part of the litigants, or even their protest, and the reports of special masters in such cases shall he advisory.
“The only authority for the appointment of special masters by the chancellor on his own motion is found in the rule we have cited and it is plain from its language that there was no intention to delegate to such special masters the authority to hear all the case. . . .” (Emphasis added.) (74 So.2d at 63, 64)

Even in those instances where a general master was appointed to hear the entire case, the final disposition was always made by the court, Slatcoff, supra, at p. 64; however, the court was bound by the restrictive “clearly erroneous” doctrine. See Harmon v. Harmon, Fla.1949, 40 So.2d 209.

Therefore, to the extent that the order for voluntary hospitalization in the instant case undertook to make a final (judicial) disposition by ordering the commitment of petitioner, it was invalid. However, I am not prepared to conclude that the appointment and limited use of a special master in an involuntary hospitalization case is totally unauthorized and that a resulting order of commitment is completely invalid. Although references to a special master “should be the exception and not the rule”, Slatcoff, supra, such references when followed by appropriate judicial action will not invalidate an order for involuntary hospitalization.

In the instance where a special master is utilized pursuant to an order of the court, the findings of such special master would be advisory only with the ultimate determination and disposition to be made by the court. Such determination and disposition (and the preceding hearing conducted by the special master) would be consistent with the intent of sec. 394.467(3) and otherwise authorized by Rule 1.490(b).

Although we are keenly aware that the dockets of the trial court (as well as the appellate court) reflect a staggering volume of litigation, the judicial power of the court to hear and adjudicate cannot be delegated to a special master; nor should the volume of litigation transform what is now a recognized “exception” into a general rule of practice, i. e., the constant use of special masters in involuntary hospitalization cases. See Bell v. Bell, supra.

The ultimate determination of whether to utilize a special master in such cases still rests within the sound discretion of the trial court; the comments herein are not intended to second guess a reference made in any given case but merely to point out the restriction upon such reference.

Therefore, it is my view that a circuit judge acting pursuant to sec. 394.467 is authorized, in accordance with Rule 1.490(b), to appoint a special master for the limited purpose of conducting a hearing and preparing a report in connection with involuntary hospitalization under the Baker Act. Any commitment to a treatment facility following a hearing and a report by a special master shall only be pursuant to an adjudication of incompetency and an order of commitment executed by a judge of the circuit court.

The restraint of one’s liberty, particularly where one lacks the capacity to even understand such restraint, demands no less than an adjudication by a court and an order by a judge.

In reviewing the order entitled “Order Ratifying and Confirming Acts of Special Master” I would observe that while the order does not contain the necessary precision and specificity of language as might be customary, I am satisfied that the action of the court in ratifying, confirming and accepting the report of the special master was, in this instance, tantamount to the adjudication of mental incompetency and order for commitment to a treatment facility. I am further satisfied that the action of the lower court was well intentioned and motivated by a conscientious and sincere effort to best utilize judicial labors and involvement in hospitalization procedures.

Accordingly, in light of the foregoing, I concur in the discharge of the rule to show cause and the dismissal of the petition for habeas corpus.

      . At the time of the filing of the petition for writ of habeas corpus in this court, i. e., June 18, 1975, the only order relating to the detention of the petitioner was the order entered by the special master. In response to the issuance of this court’s rule to show cause why the petition for writ should not be granted, the state filed a belated return and brief (the return and brief were due on or before July 3 and were not filed in this court until July 7 and July 28 respectively). Attached to the state’s response was an order dated June 19, entered by the trial court entitled “Order Ratifying and Confirming Acts of Special Master”.

      . It is to be noted that the language of paragraph 3 of the ratification order also suggests a prospective ratification, which would be inconsistent with the observations made herein. Said paragraph provides: “ . . . (3) A copy of this Order shall be placed in each amd every case heard and/or presided over by the Special Master, . . . The ratification order will not serve as an authorization for and approval of action taken by the special master in cases other than the instant situation. In every other case, a separate order should be entered making a precise adjudication of mental incompetency and a direction for commitment.


author: McNULTY, Chief Judge.

text:
    Earl Leon KENDLE and Grange Mutual Casualty Company, Appellants, v. Edwardo E. VIERA, Appellee.
    No. 74-924.
    District Court of Appeal of Florida, Second District.
    Nov. 12, 1975.

      L. Floyd Price, Mann, Fay & Price, Bradenton, for appellants.
    Patrick J. Murphy, Crabtree, Butler, Syprett & Meshad, Sarasota, for appellee.
   McNULTY, Chief Judge.

The one question meriting discussion in this personal injury action is whether the court erred in excluding certain evidence proffered by defendants-appellants. We think not and affirm.

In November 1969 plaintiff-appellee, while driving his employer’s truck in the course of his employment, was involved in the automobile accident which forms the subject matter of this suit against the alleged third-party tortfeasor. No hospitalization nor medical aid was sought or given at that time for any injuries allegedly sustained by appellee as a result of the accident.

Approximately sixteen months later he slipped and fell, again while in the course of his employment, and four months thereafter had to undergo a cervical laminecto-my to correct a trauma-caused condition then found to exist. While appellee testified that he suffered pain and some disability after the automobile accident, although as far as can be gleaned from the evidence he did not miss any work because of it, following the on-the-job fall he was unable to work for approximately a month preceding the aforesaid laminectomy.

Obviously, the paramount issue in this case, apart from liability, was whether the injuries ultimately suffered were caused by the automobile accident of November 1969, of which there was some competent medical evidence, or by the fall in March 1971. At trial, which resulted in an $18,400 judgment in favor of appellee, defendants-appellants sought to present as the sole witness in their case-in-chief one Foster, an adjuster for appellee’s employer’s workmen’s compensation carrier. Foster’s proffered testimony, excluded by the court as indicated, would have been to the effect that no compensation claim was made by appellee until June 1971, almost three months after the on-the-job fall.

At first blush, it would seem that Foster’s proffered testimony was clearly relevant to the principal defense, viz., that most if not all of appellee’s injuries resulted from the fall rather than from the automobile accident sued on. It appears relevant for the reason that a workmen’s compensation claim would surely have been viable following the automobile accident since any alleged injuries sustained therein were sustained in the course of appellee’s employment. The fact that no such claim was made until after the on-the-job fall, therefore, would apparently be corroborative, to the extent a jury may determine, of the defense that the injuries now complained of were not caused in the first accident.

But this is illusory. To begin with, the failure to file a compensation claim until after the on-the-job fall is merely a circumstance ; and it is rudimentary that circumstantial evidence is only competent and admissible if it tends to establish one relevant fact to the exclusion of another. If it is equally susceptible of two opposing inferences it is probative of neither; and its value, or competence, as evidence is therefore nil.

Here, appellee incurred no medical expenses prior to the on-the-job fall nor, as indicated, does it appear that he lost any compensable time off from work prior to that time. He could not properly, then, have made a compensation claim prior to the on-the-job fall. It follows, therefore, that the circumstance of his not having made such a claim until after that time is no more probative of a defense that he wasn’t injured at all in the first accident than it is of the fact that he was indeed injured in that accident but that the seriousness or debilitating effect of such injuries did not come to fruition until after the on-the-job fall. Accordingly, the court was correct in excluding the proffer for the reason that, under the peculiar facts relied upon for its predicate, it tended to prove nothing and was thus incompetent and inadmissible circumstantial evidence.

In view whereof, the judgment appealed from should be, and it is hereby, affirmed.

GRIMES and SCHEB, JJ., concur.


author: PER CURIAM.

text:
    Joe JONES, Appellant, v. STATE of Florida, Appellee.
    No. 75-135.
    District Court of Appeal of Florida, Second District.
    Nov. 12, 1975.

      James A. Gardner, Public Defender, Sarasota, and Ellen Condon, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We hold, once again, that the failure of a probation officer to give a Miranda warning to a probationer prior to his admission of a violation of the terms of his probation does not render the admission inadmissible at the revocation proceeding. Clark v. State, Fla.App.2d, 1969, 222 So.2d 766. See United States v. Johnson, 5th Cir. 1971, 455 F.2d 932; People v. W., 1968, 31 A.D.2d 163, 295 N.Y.S.2d 767; State v. Jackson, 1972, 16 Ariz.App. 476, 494 P.2d 376; but cf. Heath v. State, Fla.App. 4th, 1975, 310 So.2d 38.

Affirmed.

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


text:
    ALL-STAR INSURANCE CORPORATION et al., Appellants, v. SCANDIA, INC., et al., Appellees.
    Nos. 74-726, 74-727.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1975.
    Rehearing Denied Dec. 2, 1975.

      George J. Baya, Miami, for appellants.
    Gars & Dixon, Horton, Perse & Ginsberg, Miami, for appellees.
    Before HAVERFIELD and NATHAN, JJ„ and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is the consolidation of two appeals by All-Star Insurance Corporation, Parliament Insurance Company, American Plome Assurance Company, National Union Fire Insurance Company, Granite State Insurance Company, New Hampshire Insurance Group and Hartford Insurance Company, defendants in the trial court. The first appeal stems from an order granting a motion for directed verdict on which the court reserved ruling, alternatively granting a motion for new trial and a final judgment for the plaintiffs, Scandia, Inc., Scandia of Hialeah and Furniture Frames, Inc. The second stems from an order awarding attorneys fees to the plaintiffs’ attorneys.

It is undisputed that on February 9, 1973, there was a fire which caused great destruction to the furniture showroom and warehouse building occupied by the three plaintiff corporations. The plaintiffs filed claims against their seven fire insurance carriers, none of which paid on the policies, and litigation ensued. In the complaint, the plaintiffs alleged that all of the insured contents, improvements, and better-ments were destroyed by fire, and they sought to recover the face amount of all of the policies in the sum of $135,000.

A jury trial was held. At the close of the plaintiffs’ case, the court denied the defendants’ motion for a directed verdict. Later in the trial, the judge struck all but four of the defendants’ defenses and stated that “there never has been a defense to the case, and the defense put on in this case by the defendant insurance companies can at best be characterized as frivolous and is an imposition upon this court, the jurors, the time of counsel, and everybody else” and “that in the event that the jury returns a verdict either for the defendants or for the plaintiff in any amount less than the entire amount of the claim, I am going to grant a new trial and we are going to retry this case until the plaintiff recovers every cent to which he is entitled.” The subject defenses set forth various violations of the policies, including (a) that Scandia was not the owner of the involved contents and betterments and improvements; (b) that All-Star, American, Granite, New Hampshire, and Hartford do not insure Hialeah and Frames; (c) that Parliament and National do not insure Scandia; (d) that plaintiffs did not render the required proofs of loss; (e) that plaintiffs did not furnish a complete inventory of destroyed, damaged and undamaged property, showing in detail quantities, costs, actual cash value and amount of loss claimed; (f) that plaintiffs failed to produce for examination books of account, etc.; (g) that plaintiffs prevented defendants from examining them under oath by failing to render the required proofs of loss; (h) that the hazard was increased because of various material matters concealed by plaintiffs; (i) that plaintiffs failed to exhibit to defendants the remains of any property; (j) that after the loss plaintiffs secreted and disposed of some of the destroyed and damaged property; (k) that plaintiffs fraudulently concealed material facts; (l) that after the loss plaintiffs fraudulently misrepresented material facts; and (m) that the cost of repairing and replacing the damaged property did not equal or exceed $24,000.00. At the close of all of the testimony, the defendants again moved for a directed verdict which the court denied.. The court reserved ruling on the plaintiffs’ motion for directed verdict.

The jury returned a verdict in favor of the plaintiffs, finding by special interrogatories, that the defendants did not waive the proof of loss requirement contained in the policies, and damages were awarded in the amount of $65,000. On that same day, the court orally granted the plaintiffs’ motion to set aside the verdict and ordered a new trial on the issue of damages only, to begin on the following Monday, at 9:30 A. M. Defense counsel objected since this order was made at 7:45 P.M., on Friday. The defendants moved the court to vacate the order granting a new trial which was denied. The court then entered a written order granting in part, the reserved motion of the plaintiffs for a directed verdict and granting the plaintiffs a new trial on the sole question of damages. The cause again proceeded to trial and the jury returned a second verdict for the plaintiffs in the amount of $60,000. The plaintiffs moved to set aside the second verdict, and two days later, the trial judge granted such motion and set the second verdict aside and entered final judgment in favor of the plaintiffs in the amount of $135,000, the aggregate of the full amount of the policies involved, plus interest. The court also entered an order awarding attorneys fees to the plaintiffs’ attorneys in the amount of $30,000. All defendants appeal.

As one of the ten points on appeal, the defendants contend that it was error for the trial judge to set aside the jury verdicts and render final judgment for the plaintiffs since there is ample, competent evidence to support the verdicts. We agree. Although some of the evidence presented in the trial court may be susceptible to different inferences, the jury verdict is entitled to all reasonable inferences to be drawn from the evidence and the verdict is favored with a presumption of correctness. Mansell v. Eidge, Fla.App.1965, 179 So.2d 624, 626; Anheuser-Busch, Inc. v. Campbell, Fla.App.1975, 306 So.2d 198. The trial judge evidently found that there was sufficient evidence to submit the case to the jury twice, and therefore, no finding of prejudice being involved, it was improper to set aside the verdicts after they were returned. The record shows that the evidence before the jury supports the verdict; that the first jury found by special interrogatories that the proof of loss requirement had not been waived by the defendants and that there was no finding by the trial court of prejudice or mistake. In light of this, setting aside the verdicts was an abuse of discretion, and under these circumstances, it is incumbent upon this court to reestablish the verdict. See Mansell v. Eidge, supra. As to which verdict to reinstate, we look to Banner Construction Corporation v. Arnold, Fla.App.1971, 128 So.2d 893, which states that, “It is well settled that a second verdict rendered by a different jury upon substantially the same evidence is entitled to greater weight than the first verdict to like effect.” This is true . . even if judges may reach a different conclusion.” Bernstein v. Common Markets, Inc., Fla. App.1974, 298 So.2d 528. Therefore, we reverse and remand to the trial court with directions to reestablish the second verdict.

As to the order awarding attorneys fees in the amount of $30,000 we also reverse and remand. The plaintiffs’ attorneys are entitled to recover reasonable attorneys fees based upon established law considering the amount of the judgment on the jury verdict.

Reversed and remanded with directions.


author: WALDEN, Judge.

text:
    Toby Allen HASSBERGER, Appellant, v. STATE of Florida, Appellee.
    No. 74-886.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
    Rehearing and Certification Denied Nov. 12, 1975.

      Alan E. Strober of Sigman, Speigel, Flower & Strober, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Frank B. Kessler, Asst. Atty. Gen., West Palm Beach, for appellee.
   WALDEN, Judge.

The question crucial to this case is:

Can the identity (actual name and address) of a confidential informant be kept secret when the trial court finds (by means of an in camera proceeding on the subject), that the informant’s personal safety is at stake — when that informant appears as a witness in the criminal proceeding?

The defendant here complains that he was denied his right to cross examine when a witness-confidential-informant was permitted to testify without revealing his real name and address. The trial court held an in camera proceeding to determine the validity of the witness’ claim of personal danger and concluded that such danger did exist, and that other state investigations would suffer if the witness’ identity was revealed. The trial court determined the witness’ identity could be kept secret. We disagree and reverse.

There are two primary reasons for courts to permit an informant’s identity to remain undisclosed:

(1) So that the informer may continue in his activities without losing his cover, thereby serving state and public interests;
(2) So that the informer may be kept free of reprisals, thereby serving state and public interests by encouraging citizens to reveal information to proper authorities.

There are four primary reasons for a defendant to request the identity of an informant :

(1) To prove probable cause for a warrant when an informant’s tip provides a portion of the basis for the warrant’s issuance.
(2) To prove probable cause for a war-rantless arrest and search when an informant’s tip provides a basis for. police action in that regard.
(3) To permit a defendant to properly prepare his defense; a defendant alleging entrapment may want an informant to testify, or may want to delve into the occasion surrounding his arrest; a defendant may want to have the opportunity to question the informant to see if informant has testimony that would aid defendant’s cause.
(4) To permit a defendant to adequately cross-examine and impeach an informant who will be a witness against him in trial proceedings. This desire is in accord with a defendant’s sixth amendment right to confront witnesses against him.

It is important not to confuse the statement of one court dealing with a request for identity under defendant’s reasons one and two, with the more crucial request under reason four.

In Florida a defendant’s request for identity under the stated reasons one and two are often denied. In Treverrow v. State, 194 So.2d 250 (Fla. 1967), the Supreme Court held that an informant whose tip led to a search warrant did not have to be revealed because the warrant was otherwise bolstered by personal observation of a police officer. The burden in that instance is heavy on the defendant:

“the burden is on the defendant claiming an exception to the rule to show why an exception should be invoked.”

This opinion also encompassed, partially, the stated reason three, as it noted that disclosure of the informant would not aid in the defendant’s defense.

In Harrington v. State, 110 So.2d 495 (Fla.App. 1st 1959), a similar decision was had concerning an informant’s identity when his lead led to a search warrant. Likewise, State v. Katz, 295 So.2d 356 (Fla.App. 4th 1974).

In conclusion on these reasons one, two and three, Florida authority is in accord with Federal authority on informant identity when informant gave a tip leading to a warrant, or a warrantless arrest and search and where defendant wants informant testimony. U. S. v. Comissiong, 429 F.2d 834 (2d Cir. 1970); U. S. v. Carneglia, 468 F.2d 1084 (2d Cir. 1972); U. S. v. Gibbs, 435 F.2d 621 (9th Cir. 1970); U. S. v. Malo, 417 F.2d 1242 (2d Cir. 1969); U. S. v. Waters, 461 F.2d 248 (10th Cir. 1972); U. S. v. Winters, 420 F. 2d 523 (3d Cir. 1969); U. S. v. Jackson, 384 F.2d 825 (3d Cir. 1967); U. S. v. Danesi, 342 F.Supp. 889 (D.Conn.1972) [an in camera investigation used to see if informant testimony would help defendant] ; U. S. v. Hurse, 453 F.2d 128 (8th Cir. 1972) [in camera proceeding to see if informant tip was probable cause]; U. S. v. Toombs, 497 F.2d 88 (5th Cir. 1974); U. S. v. Alvarez, 469 F.2d 1065 (9th Cir. 1972); Bruner v. U. S., 293 F.2d 621 (5th Cir. 1961); U. S. v. Davis, 487 F.2d 1249 (5th Cir. 1973).

It is most interesting to realize that those authorities dealing with a request by a defendant that informant testify take for granted that, if informant testified, his real identity should or would be 'revealed. See Roviaro v. U. S., 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); Spataro v. State, 179 So.2d 873 (Fla.App. 2nd 1965); and Ricketts v. State, 305 So.2d 296 (Fla.App. 4th 1974) [in which an informer had to be identified when he was an active participant and the only witness in a position

“to amplify or contradict the testimony of the witnesses for the State.”];

Therefore it follows that when a witness testifies for the state, the burden shifts to the state to prove reasons why defendant should not be able to cross examine a witness as to his or her real name and address. There must be some strong state interest. With respect to that state interest, the committee notes to Rule 510 of the Federal Proposed Rules of Evidence, stated:

‘If the informer becomes a witness for the government, the interests of justice in disclosing his status as a source of bias or possible support dre believed to outweigh any remnant of interest in nondisclosure which then remains. See Harris v. United States, 371 F.2d 365 (9th Cir. 1967), in which the trial judge permitted detailed inquiry into the relationship between the witness and the government.’ ” (Emphasis supplied.)

and the proposed rule provided in part:

“(c) Exceptions.
“(1) Voluntary Disclosure; Informer a Witness. No privilege exists under this rule if the identity of the informer or his interest in the subject matter of his communication has been disclosed to those who would have cause to resent the communication by a holder of the privilege or by the informer’s own action, or if the informer appears as a witness fo'r the government.” (Emphasis supplied.)

However, Rule 510 has been deleted in a tentative draft of Federal Rule 5463, dated June 28, 1973, by the Criminal Justice Subcommittee of the House Judiciary Committee. 13 Crim.L.Rep. 3285. See 8 Moore’s Federal Practice § 16.06, p. 1694, and supp. 117 (1974 and 1975).

There are no Florida cases which deal directly with a witness who testifies at the behest of the state, but remains unidentified. The Federal cases dealing with this precise problem are limited, but there has been a response to the problem from the U. S. Supreme Court in Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed. 2d 956 (1968), in which a state witness who was the principal prosecution witness was required — on cross examination — to reveal his real name and address:

“In the present case there was not, to be sure, a complete denial of all right of cross-examination. But the petitioner was denied the right to ask the principal prosecution witness either his name or where he lived, although the witness admitted that the name he had first given was false. Yet when the credibility of a witness is in issue, the very starting point in ‘exposing falsehood and bringing out the truth’ through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness’ name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.
“ . . .In this state case we . hold that the petitioner was deprived of a right guaranteed to him under the Sixth and Fourteenth Amendments of the Constitution.” 88 S.Ct. at 750-751.

A concurrence by Justices White and Marshall indicated that, according to Alford v. U. S., 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931), questions

“which tend merely to harass, annoy or humiliate a witness may go beyond the bounds of proper cross examination!”

Courts interpreting this clause have included in this genre questions that would tend to endanger the personal safety of the witnesses. This statement in the concurring opinion to Smith v. Illinois, supra, has resulted in a plethora of Federal Circuit cases which, in varying degrees, protect a government witness: U. S. v. Crockett, 506 F.2d 759 (5th Cir. 1975) [address of witness concealed]; U. S. v. Smaldone, 484 F.2d 311 (10th Cir. 1973) [address concealed]; U.S. v. La Barbera, 463 F.2d 988 (7th Cir. 1972) [address concealed]; U. S. v. Ellis, 468 F.2d 638 (9th Cir. 1972) [name and address concealed]; U. S. v. Palermo, 410 F.2d 468 (7th Cir. 1969) [address concealed, although the court included the statement that: “ . . . where there is a threat to the life of the witness, the right of the defendant to have the witness’ true name, address and place of employment is not absolute.”] ; U. S. v. Varelli, 407 F.2d 735 (7th Cir. 1969] [address concealed]; U. S. v. Crovedi, 467 F.2d 1032 (7th Cir. 1972) [present names (new aliases) and addresses concealed]; see U. S. v. Alston, 460 F.2d 48 (5th Cir. 1972) and U. S. v. McKinley, 493 F.2d 547 (5th Cir. 1974) [in which federal agents who were witnesses had addresses and aliases protected]. But simply to aver that a witness is in danger does not automatically protect him from being identified. .There are various policy statements made by the courts, designed to show that a defendant must be granted a full right to cross examination. These statements include the following points:

(1) The witness must be properly placed in his environment so defendant can impeach. In these cases the address of the witness is usually the only thing not revealed.

This point is crucial. In Alford v. U. S., supra, the Supreme Court held that a witness on cross had to answer the question of what his address was because it was an appropriate preliminary toward identifying the witness in his environment. In U. S. v. Smaldone, supra, the Circuit Court held the address of a witness was not necessary when:

“In the case at bar then there was no lack of knowledge on the part of the defendant as to the background of the witness Nocenti. Counsel was allowed to cross-examine him in minute detail. Thus, there was not present the usual necessity to bring out the address of the witness; and the defendant was not deprived of knowledge of where he lived and what his business was as was said in Alford.”

In U. S. v. Smaldone, supra, the witnesses had been relocated by the government to protect them, but the witness could be placed in his environment because his former address was available. In U. S. v. La Barbera, supra, an in camera inspection was had of a witness’ credentials, prior addresses, and his testimony was subject to extensive cross examination. The 7th Circuit held that his present address didn’t have to be revealed on cross-examination because:

“The record shows that Barr’s testimony was the subject of extensive cross-examination by the defendants; although this is not dispositive of the issue raised on appeal, it does suggest that any prejudice to defendants was minimal. The disability inherent in the trial court’s ruling was clearly outweighed by the necessity of protecting the witness Barr.” Id. at 990.

In U. S. v. Crovedi, 467 F.2d 1032 (7th Cir. 1972), certain witnesses had relocated their families and gotten new addresses, names and jobs. Those didn’t have to be revealed. See also U. S. v. Palermo, supra; U. S. v. Varelli, supra; U. S. v. Saletko, 452 F.2d 193 (7th Cir. 1971) and U. S. v. Crockett, supra. In these and other cases the address of a witness was concealed but not his real identity. In fact, in U. S. v. Palermo, the court said:

“Under almost all circumstances, the true name of the witness must be disclosed. Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968). If the witness is located in a penal institution, this, too, must be disclosed. Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931). A witness’ prior address must also be disclosed if the witness does not intend to return to this location. United States v. Varelli, 407 F.2d 735 (7th Cir. 1969). If the trial judge concludes that the defendant does not have a right to the exact address of the witness and his place of employment, the defendant is entitled to ask any other relevant questions which may aid the jury in weighing the witness’ credibility.” (Emphasis supplied.)

A second reason to permit identification or address concealment :

(2) The witness’ testimony is marginal and not crucial to the state’s case.

In U. S. v. Ellis, supra, the court stated,

“After denial of a motion to suppress marijuana which Ellis sold to an undercover agent in the presence of concealed police officers, Ellis waived trial by jury and was convicted under 21 U.S.C. § 841(a)(1). At the trial, Ellis attempted on cross-examination to elicit the correct name, residence, and occupation of the agent-purchaser. He appeals on the sole ground that the district court erred in restricting his effort to break the agent’s ‘cover.’ The argument is without merit.” 468 F.2d at 639. (Emphasis supplied.)

and held:

“ . . .we conclude, in view of the marginal significance of the witness’s testimony in this case, that no prejudice to the defendant can be shown.” (Emphasis supplied.)

See also U. S. v. McKinley, 493 F.2d 547 (5th Cir. 1974). This reasoning is faulty. If a witness’ testimony is only marginal (this witness’, however, was more than mere surplusage) the state has no reason at all to abridge a defendant’s Sixth Amendment rights.

There are very few cases that permit the name of a witness to be concealed, and when the name is concealed, the witness is usually a government agent (as opposed to an informer); U. S. v. Ellis, supra; U. S. v. McKinley, supra, or the names are newly adopted aliases. It does not pattern that witnesses may be automatically kept anonymous if they are in danger. In fact, the very nature of an informant’s business subjects him to danger and it would be most unfortunate to hold that all informants might testify, but remain unidentified. That procedure would totally contravene the Sixth Amendment and be akin to the dreaded star chamber proceedings. How would witnesses then be protected — would they testify from behind a screen? That is unthinkable. The right of a defendant to cross examine is crucial, and though extensive federal case law supports the proposition that an address may be concealed, the authority for actually concealing a witness’ identity is slim; because the witness must be placed in his environment, his past and record must be available to the defendant. Smith v. Illinois, supra.

In our case the witness has not been ensconced in a new residence for his own protection, the defendant has not been able to place the witness in his environment, check for a record or for other credibility evidence. The fact that the trial judge in camera was informed of the witness’ record and background does not suffice to place the witness in his environment for the benefit of the defendant.

Further, and most convincingly, this state has a rule of procedure analogous to the deleted Rule 510 of the Proposed Federal Rules of Criminal Procedure. That is Fla.R.Cr.P. 3.220(c)(2):

“(2) Informants. Disclosure of a confidential informant shall not be required unless the confidential informant is to be produced at a hearing or trial, or a failure to disclose his identity will infringe the constitutional rights of the accused.” (Emphasis supplied.)

This rule clearly indicates that disclosure of a confidential informant shall be required if the informant is to be produced at trial.

In final tie-up, this decision and position will prevent defendants from being confronted by faceless witnesses, bringing charges and offering condemning testimony against defendants who are prevented by the court from exercising their Sixth Amendment right to confront and cross examine. The very life style of most confidential informants necessarily places them in danger of reprisals. Regardless, we cannot agree that, therefore, those informants should testify incognito at the expense of defendants. A contrary decision to the one we make here could eventually lead to the simple result that confidential informants may testify without being identified.

Further, it would be impracticable for a trial judge to assess in camera the levels of danger adequate to forestall the revelation of a witness’ identity. Why? Be-caüse, as we have indicated, those charged with a crime automatically take a dim and potentially dangerous view of being informed against by their acquaintances.

For example, in the case at hand, the evidence at the in camera inspection showed only that (1) the informant has been followed by two young men (one of whom was tentatively identified as a relative of a co-defendant of Hassberger) when in the Orange County Courthouse; there was no hostility, or evidence they were armed, and (2) the co-defendant in the trial had been armed with a 25 caliber pistol when he was arrested. There was no evidence of specific threats or outward manifestations of any danger to the witness. The decision of the trial court was based simply on the danger which is generally understood to face undercover-informant witnesses.

As to the assertion that the defendant’s Sixth Amendment rights were adequately protected by the trial court judge’s unilateral in camera inquiry into the witness’ background and record, we emphatically disagree. Such efforts, however well intended by the impartial arbiter, cannot substitute meaningfully for those of a competent defense counsel advocating for his client in the area of impeachment and credibility. Moreover, there is no protection for defendant in the event that the trial court’s inquiry into background is lacking or the responses are untruthful. We are reminded that the in camera inspection, here employed, found the prosecutors participating and defense counsel barred from such proceedings.

The state’s case should not be hinged upon nor bolstered by the testimony of a confidential informant witness whose identity remains a secret. If an informant is valuable to the state, then the state must balance his usefulness and his safety as against the disadvantage of not using him as a witness. Any other rule would contravene Fla.R.Cr.P. 3.220 and the rights of a defendant under the Sixth Amendment.

And so the mandate of Fla.R.Cr.P. 3.220, and the crucial consideration that defendant has been denied his right to meaningfully cross-examine a witness against him in contravention of the Sixth Amendment require reversal for a new trial with directions that the defendant be permitted to elicit the name and address of the informant-witness should the state choose to call him to the stand.

Reversed and remanded.

OWEN, J., concurs.

CROSS, J., concurs only in conclusion.

      . In the committee note to Rule 510 of the Federal Proposed Rules of Evidence the committee stated:
      “Subdivision (a) The public interest in law enforcement requires that the privilege he that of the government, state, or political subdivision, rather than that of the witness."

      . This opinion may have been influenced by the consideration, mentioned in 8 Moore’s Federal Practice, § 16.04, supp. (1975), that there is some relevance to whether the .witness is an informer or a narcotics agent.

      . Notably, the in camera inspection of the witness’ background revealed that he had, at one time, been adjudicated incompetent. The witness spent some five years in a mental institution and was adjudicated not guilty by reason of insanity on a charge of assault with intent to commit murder. This history of instability could have been used to impeach this witness, and had counsel for defendant known this witness’ identity, that history could (and should) have been entered into evidence for that purpose.