text:
    Carl Ray SONGER, a/k/a Robert Berry, Appellant, v. STATE of Florida, Appellee.
    No. 52642.
    Supreme Court of Florida.
    Sept. 7, 1978.
    Rehearing Denied Dec. 21, 1978.

      Jack 0. Johnson, Public Defender, W. C. McLain, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Robert J. Landry, Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

This case is before the Court for further review after remand of the imposition of a death sentence. In the original trial proceedings, the appellant was found guilty of first degree murder and sentenced to death by the trial judge after the jury returned an advisory recommendation of death. The conviction and sentence were previously affirmed by this Court, Songer v. State, 322 So.2d 481 (Fla.1975), but the case was remanded to the trial court for resentencing as directed by the United States Supreme Court, Songer v. Florida, 430 U.S. 952, 97 S.Ct. 1594, 51 L.Ed.2d 801 (1977), because of apparent noncompliance with the required guidelines announced in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).

At the resentencing hearing of August 17, 1977, appellant’s counsel requested that another jury be impaneled by the trial court to hear testimony and make a sentence recommendation. He further requested that the court allow persons presently incarcerated in Raiford Prison to be summoned to appear on the defendant’s behalf as character witnesses. These motions were denied.

The trial court stated that it would consider the same presentence investigation report which was used in the original sentencing procedure. The trial court expressly stated in the record that the only presen-tence investigation report considered was furnished to the State and the defendant both prior to the imposition of the original sentence and again prior to the subject re-sentencing. This report is limited to the appellant’s criminal record. The court allowed counsel an opportunity make arguments and to refute matters contained in the presentence investigation report. Defense counsel presented no matters to refute the report, but instead asked for a more expansive presentence investigation. This request was not made until the moment of sentencing. The trial judge denied the request and sentenced the appellant to death for the same reasons as expressed in his previous order.

Place Date Charge Disposition
S.O. Anters, Okla. 7-5-72 Auto Theft No disposition shown
S.Pen.
McAlester, Okla. 7-28-72 Larc. of Auto 3 yrs. transí, to OSP
S. Ref.
Granite, Okla. 9-20-72 Larc. of Auto 3 yrs.

On this appeal from resentencing, two points are raised. First, appellant contends that the trial court erred in refusing to impanel a jury and conduct a new sentencing trial in accordance with Section 921.141, Florida Statutes (1975). It is the appellant’s view that when the United States Supreme Court vacated the appellant’s original sentence of death the sentence was thereby rendered void. Appellant submits that any subsequent sentence, to be lawfully imposed, must be preceded by another advisory sentencing before a jury under Section 921.141, Florida Statutes (1975). The State responds that both the United States Supreme Court and this Court intended that the case be remanded to the trial court for the very limited purpose of “consideration in light of Gardner v. Florida.” Songer v. Florida, 430 U.S. 952, 97 S.Ct. 1594, 51 L.Ed.2d 801 (1977). The State further asserts that the only question presented is whether the trial court complied with due process requirements of the Gardner decision, which directs that when a court imposes a sentence of death the defendant must have an opportunity to explain or rebut any information before the court on which the sentence is to be based.

In his second issue, the appellant argues that the trial court erred in refusing to allow him to subpoena prison inmates as character witnesses to speak on his behalf at the resentencing hearing. Appellant further contends that the court’s refusal to allow the appellant to subpoena witnesses to testify at the hearing violates Rule 3.720(b), Fla.R.Crim.P., which requires the court to “[ejntertain submissions and evidence by the parties which are relevant to the sentence.” It appears that the appellant sought to have these inmate witnesses testify in mitigation of the sentence and not to contradict anything contained in the pre-sentence investigation report; nothing appears in the record concerning the proffered substance of their testimony.

We disagree with both of appellant’s contentions.

We hold that the trial court did not err in refusing to impanel a jury upon re-sentencing or to hear witnesses in mitigation of the sentence and that the trial court properly complied with Rule 3.720(b), Fla.R. Crim.P. This Court’s order of May 17,1977, remanded the case to the trial court for resentencing “only consistent with the opinion of the Supreme Court of the United States in Gardner.” Under that order, the case was remanded to the trial court to ensure that the sentence was not imposed on the basis of any information which the appellant did not have an opportunity to rebut or explain. The record now reflects that there was no initial Gardner violation because trial counsel was given a copy of the presentence investigation report prior to the original sentencing. The trial court on remand clarified the record by showing that appellant’s trial counsel had a copy of the presentence investigation at the first sentencing hearing. At the second sentencing hearing, the trial court also afforded appellant’s counsel another opportunity to challenge the accuracy of the same presen-tence investigation report. The only response was a request for a more expansive report.

The evidence offered in mitigation of the sentence by asserted character witnesses who were Raiford inmates was not relevant at the hearing on remand. That hearing was only for the purpose of allowing the defendant an opportunity to rebut what was contained in the presentence investigation report. Nothing was asserted or proffered that this testimony was necessary to rebut anything in the presentence investigation report. In the original sentencing proceeding appellant had been afforded an opportunity to present witnesses in mitigation of the sentence. The trial judge properly denied the request to subpoena these inmate witnesses.

We find there has been no violation of the requirements of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), and the sentence of death is affirmed.

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

ON REHEARING

Appellant has filed a motion for rehearing asserting that Florida’s death penalty statute, Section 921.141, Florida Statutes (1975), is unconstitutional in light of the United States Supreme Court’s recent decision in Lockett v. Ohio,-U.S.-, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). We reject this contention and deny appellant’s request for rehearing.

In Lockett, the Court held that Ohio’s death penalty statute, which restricts the sentencing judge’s consideration to the statutory list of mitigating factors, violates the eighth and fourteenth amendments to the United States Constitution. Appellant asserts that Florida’s statute similarly prescribes an exclusive list of mitigating circumstances, relying principally on language from our decision in Cooper v. State, 336 So.2d 1133 (Fla.1976), to the effect that unlisted mitigating circumstances should not be considered in sentencing for a capital crime.

In Cooper, this Court was concerned not with whether enumerated factors were being raised as mitigation, but with whether the evidence offered was probative. Chief Justice Burger, writing for the majority in Lockett, expressly stated that irrelevant evidence may be excluded from the sentencing process. 98 S.Ct. at 2965 n.12. Cooper is not apropos to the problems addressed in Lockett.

As concerns the exclusivity of the list of mitigating factors in Section 921.141, the wording itself, and the construction we have placed on that wording in a number of our decisions, indicate unequivocally that the list of mitigating factors is not exhaustive. This was noted, in fact, in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

We have approved a trial court’s consideration of circumstances in mitigation which are not included on the statutory list in Washington v. State, 362 So.2d 658 (Fla. 1978); Buckrem v. State, 355 So.2d 111 (Fla.1978); McCaskill v. State, 344 So.2d 1276 (Fla.1977); Chambers v. State, 339 So.2d 204 (Fla.1976); Meeks v. State, 336 So.2d 1142 (Fla.1976); Messer v. State, 330 So.2d 137 (Fla.1976); and Halliwell v. State, 323 So.2d 557 (Fla.1975), among others. Obviously, our construction of Section 921.-141(6) has been that all relevant circumstances may be considered in mitigation, and that the factors listed in the statute merely indicate the principal factors to be considered. This construction of the statute, and its continued validity, were noted most recently in Spinkellink v. Wainwright, 578 F.2d 582, 620-21 (5th Cir. 1978), where the court was presented with an identical challenge to our death penalty statute based on Lockett v. Ohio.

Florida’s death penalty statute, unlike the Ohio statute found invalid in Lockett, does not violate the eighth and fourteenth amendments to the United States Constitution. Accordingly, appellant’s motion for rehearing is denied.

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

      . Re: SONGER, Carl Ray
      42-667
      Dear Judge Booth:
      As per your request the following is submitted: The above captioned white male is known under FBI # 634 736 G and has the following criminal record:
      Place Date Charge Disposition
      USM Tyler, Tex. 9-27-68 Dyer Act 2 yrs. Cust. Count I, 5 yrs. Cust. Count II, 5 yrs. to begin at completion of Count I
      PD Paris, Tex. Fed. Corr. Inst. 9-27-68 Dyer Act To Fed. Auth., Dallas
      Seagoville, Texas Fed. Ref. 10-24-68 VNMVTA 2-5 yrs. prob. to follow
      El Reno, Okla. 1-7-69 I/S transp. stolen veh. 2-5 yrs. prob.
      S.O. Okla. City, Okla. 12-18-70 Forgery 2nd Degree No disposition shown
      S.O. Antlers, Okla. 11-2-71 Illegal poss. of deer meat $115 & 30 days in County Jail
      S.O. Okla. City, Okla. 12-6-71 Vio. S/S No disposition shown

        Due to the fact I did not have the opportunity to personally interview the subject, I can provide no personal background on him. At present there is a hold placed on the subject by the Oklahoma authorities. This is a felony arrest warrant from Oklahoma stating that on 11-10-73, the subject did feloniously break and escape from the Lexington Community Treatment and Rehabilitation Center where he was confined for three years.
      Other correspondence indicates that this subject and Ronald B. Jones are suspects in several B&E’s, due to the fact that upon their arrest for this instant offense were found several credit cards and checkbooks from various individuals.
      I trust that the above information will be helpful in disposition in this case. If additional information is needed, please advise.
      Sincerely,
      /s/ Michael C. Dippolito,
      District Supervisor

      . THIS CAUSE coming on this day to be considered pursuant to the provisions of Section 921.141, Florida Statutes, after (1) conviction of the defendant Carl Ray Songer, a/k/a Robert Berry, of Murder in the First Degree, by a duly impaneled jury and his adjudication of guilt of such offense, (2) the rendition by such jury at the conclusion of the sentencing proceeding of an Advisory Sentence recommending the imposition of the death sentence, (3) the receipt of a pre-sentence investigative report on said defendant by the undersigned, copy of same in its entirety having been furnished to both the State and Defense prior to the original sentencing, (4) the filing of “Findings of Fact” and the imposition of the death sentence on February 28, 1974, (5) the remand by the Florida Supreme Court to this Court for re-sentencing only consistent with the opinion of the United States Supreme Court of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), and proceeding only consistent therewith finds
      (a)that the only pre-sentence investigative report considered in arriving at the disposition made at the original sentencing is the report referred to in (3) above, copy of same in its entirety being attached.
      (b)that the only pre-sentence investigative report to be considered at the re-sentencing is the report referred to in (3) above, copy of same in its entirety being attached
      and after carefully considering and weighing the evidence presented during such trial and the original sentencing proceeding, the original arguments and arguments made today of the attorneys as to the sentence to be imposed and reviewing again the factual information contained in said pre-sentence investigation, the undersigned concludes and determines that aggravating circumstances exist, to-wit: (1) The capital felony was committed to disrupt or hinder the lawful exercise of a governmental function or the enforcement of laws, and (2) The capital felony was committed by a person under sentence of imprisonment; and that such aggravating circumstances outweighs the mitigating circumstances, to-wit: none; and based upon the records of such trial and sentencing proceedings makes the following findings of facts, to-wit:
      1. A Capital felony, namely Murder in the First Degree, was committed by the defendant Carl Ray Songer to disrupt or hinder the victim, namely Ronald G. Smith, from the lawful exercise of a governmental function, or the enforcement of laws; all as is reflected by the testimony of Ralph Morris and Richard Starling, showing that at the time and place of the commission of such capital felony:
      (a) the victim, a Trooper while on active duty and in full uniform of the Florida Highway Patrol approached a vehicle for the purpose of making a routine inspection or [sic] what appeared to be an abandoned or stolen vehicle;
      (b) the defendant did shoot and kill said victim who was then and there attempting to enforce the laws of the State of Florida or lawfully exercise a governmental function;
      (c) the defendant did shoot and kill said victim without justification, cause or provocation.
      2. A capital felony, namely Murder in the First Degree, was committed by the defendant Carl Ray Songer who was then under sentence of imprisonment, namely three years in the Oklahoma State Prison, as is shown and reflected by the testimony of Joe Smith, Chief Security Officer of Lexington State Prison, Lexington, Oklahoma, and other testimony presented during such trial and sentencing proceeding, all reflecting that:
      (a)on the 28th day of July, 1972, he was sentenced to a term of three years in the State Prison of the State of Oklahoma for the larceny of an automobile;
      (b) on the 10th day of November, 1973, while serving such sentence he escaped from the prison system of the State of Oklahoma;
      (c) at the time of the commission of such capital felony the defendant was under such sentence of imprisonment;
      and based thereon concludes that the death sentence should be imposed upon said defendant.
      DATED this 17th day of August, 1977.
      /s/_
      JOHN W. BOOTH, Circuit Judge

      . Unlike Section 921.141(5), which provides that “[a]ggravating circumstances shall be limited,” Section 921.141(6) provides that “[m]iti-gating'circumstances shall be” those enumerated. In Lockett, at 2966 n.15, the Court emphasized the reliance of six justices in Proffitt on the distinction between these two subsections.


source: Caselaw Access Project

author: ENGLAND, Chief Justice.

license: Public Domain

text:
    Charles CASTOR, Petitioner, v. STATE of Florida, Respondent.
    No. 52873.
    Supreme Court of Florida.
    Oct. 5, 1978.
    As Corrected Dec. 19, 1978.

      Michael J. Minerva, Public Defender, Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for respondent.
   ENGLAND, Chief Justice.

The decision of the First District Court of Appeal in this case, reported at 351 So.2d 375, is properly brought to us to decide whether a contemporaneous objection is essential for appellate review when a trial judge re-instructs in response to a jury’s request in a homicide case but omits a portion of the homicide instructions which we have declared essential for the jury’s complete understanding. The district court essentially held that review is foreclosed when defense counsel has failed to “clearly request” re-instrüction on homicide exclusions, despite our announcement in Hedges v. State, 172 So.2d 824 (Fla.1965), that a failure to do so is error.

In Hedges we said:

“[I]n order to supply a complete definition of manslaughter as a degree of unlawful homicide it is necessary to include also a definition of the exclusions. .
It is proper for a judge to limit the repetition to the charges requested. [Citation omitted.] However, the repeated charges should be complete on the subject involved. The giving of a partial instruction fails to inform the jury fully and often leads to undue emphasis on the part given as against the part omitted. .
In the instant case when the judge repeated his charges on degrees of homicide he should have included the requested definitions of justifiable and excusable homicide. Failure to do so erroneously left with the jury an incomplete, and, potentially misleading instruction.”

Charles Castor was charged by information with second degree murder. At the close of the evidence, the trial court properly instructed the jury on second and third degree murder, on manslaughter, on lesser included offenses, on justifiable and excusable homicide, and on self-defense. After deliberating for approximately thirty minutes, the jury indicated that it desired re-instruction. Before the jury was brought back into the courtroom, this colloquy was held between the court and counsel:

“The Court: Counsel, do you think that we should — that I should read all of the definitions to them or would both of you stipulate and agree that only those that they request would be read to them are necessary to read?
[Castor’s attorney]: I think we should read them all.
The Court: All right, bring them in. [Castor’s attorney]: You’re talking about all lesser included offenses, not the entire instructions.
[Prosecuting attorney]: We’re not sure exactly what they want yet.”

The jury then assembled in the courtroom and asked

“to have the definition of the various charges read to us again, second degree, third degree, manslaughter.”

The trial judge re-instructed on second and third degree murder, on manslaughter, and on the lesser included offenses, aggravated battery, aggravated assault, battery and assault. He did not, however, re-instruct on justifiable and excusable homicide. Following further deliberations the jury returned a verdict finding Castor guilty of murder in the third degree.

Castor appealed to the district court the trial court’s failure to re-instruct on justifiable and excusable homicide. The district court found the point not properly preserved and affirmed Castor’s conviction.

Castor asserts here that his trial counsel did all that could reasonably be required to request the omitted instructions, and that he was barred from doing more by the trial court’s failure to follow our requirement, found in the rules of criminal procedure, that the court submit to counsel all proposed responses to a jury’s questions.

As a general matter, a reviewing court will not consider points raised for the first time on appeal. Dorminey v. State, 314 So.2d 134 (Fla.1975). Where the alleged error is giving or failing to give a particular jury instruction, we have invariably required the assertion of a timely objection. Febre v. State, 158 Fla. 853, 30 So.2d 367 (1947); see Williams v. State, 285 So.2d 13 (Fla.1973). The requirement of a contemporaneous objection is based on practical necessity and basic fairness in the operation of a judicial system. It places the trial judge on notice that error may have been committed, and provides him an opportunity to correct it at an early stage of the proceedings. Delay and an unnecessary use of the appellate process result from a failure to cure early that which must be cured eventually.

To meet the objectives of any contemporaneous objection rule, an objection must be sufficiently specific both to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal. See Rivers v. State, 307 So.2d 826 (Fla. 1st DCA), cert, denied, 316 So.2d 285 (Fla.1975); York v. State, 232 So.2d 767 (Fla. 4th DCA 1969).

These considerations compel us to conclude that in re-instruction cases like the present one, objections must be explicit. They must direct the attention of the trial judge to the purported error in a way which will allow him to respond in a timely fashion.

The record in the case before us highlights the problems posed by counsel’s inexactitude. Trial counsel for Castor stated to the judge that the jury should be recharged on all legal definitions the jury may want and any lesser included charges, but he neither signaled the judge before nor after re-instruction that, for completeness, Hedges required that the instructions on justifiable and excusable homicide should also be restated. Nor did trial counsel object, before or after re-instruction, to the trial court’s failure to follow our rule regarding the procedure for submitting to counsel all responses to a jury’s questions. His failure to do either not only prevented the judge from correcting an inadvertent error, but it produced the delay and systemic cost which result from invoking both levels of the state’s appellate structure for the application of a legal principle which was known and unambiguous at the time of trial. Except in the rare eases of fundamental error, moreover, appellate counsel must be bound by the acts of trial counsel.

As a final point, Castor urges that, in reliance on Bagley v. State, 119 So.2d 400 (Fla. 1st DCA 1960), the trial court’s failure to provide the jury with the complete re-instruction required by Hedges is indeed fundamental error. Bagley, however, involved the court’s initial instructions to the jury, not re-instructions in response to the jury’s specific question. The difference is crucial if the doctrine of fundamental error is to remain a limited exception to the requirement that a trial judge must be given an opportunity to correct his own errors. Brown v. State, 124 So.2d 481 (Fla. 1960); Jackson v. State, 307 So.2d 232 (Fla. 4th DCA 1975). And see Henry v. State, 359 So.2d 864 (Fla.1978), pointing out (as was recognized in Hedges) the significance of the differences between original instructions to a jury and subsequent re-instruction.

For the case before us, we hold that where a jury has once been fully instructed on the applicable law of the case and later requests additional instructions, an appellate court will not review an alleged re-instruction error unless a timely and explicit objection is made to the trial judge. Inasmuch as trial counsel for Castor did not present the trial court with an opportunity to cure a legal but non-fundamental error, we affirm the decision of the district court declining to consider the error on appeal, and discharge the writ.

It is so ordered.

BOYD, OVERTON, HATCHETT and ALDERMAN, JJ., concur.

      . Art. V, § 3(b)(3), Fla.Const.

      . 172 So.2d at 826. In Hedges, the defendant was tried for first degree murder, and the judge originally gave instructions on all degrees of unlawful homicide and on justifiable and excusable homicide. After some deliberation, the jury requested that the instructions be read again; the trial judge then repeated his charges to the jury on unlawful homicide offenses, but refused the defendant’s request that the definitions of justifiable and excusable homicide also be re-read. We reversed that decision.

      .Instructions were given on aggravated battery, aggravated assault, battery, and assault.

      . Castor also challenged the validity of his sentence on the ground it was imposed by a different judge than the one who had presided over his trial. Castor reasserts that argument here, but we agree with the district court that the argument lacks merit.

      . Fla.R.Crim.P. 3.410.

      . We recognized and reaffirmed this principle most recently in Clark v. State, 363 So.2d 331 (Fla.1978), in which we announced the requirement of a contemporaneous objection for comments on a defendant’s exercise of his right to remain silent.

      . For an error to be so fundamental that it may be urged on appeal though not properly preserved below, the asserted error must amount to a denial of due process. State v. Smith, 240 So.2d 807 (Fla.1970).

      . Recently in Henry v. State, 359 So.2d 864 (Fla.1978), Justice Sundberg traced the development of jury re-instruction principles and the doctrine, articulated in Hedges, that limited re-instructions are permissible if complete. He concluded, however, and the Court agreed, that it is not an abuse of discretion for a trial judge to limit re-charge to a direct response to the jury’s specific request. The need for a contemporaneous objection was not an issue in the Henry case.

      .There is no assertion by Castor that, except for the alleged re-instruction error, he did not otherwise receive a fair trial.


author: PER CURIAM. SUNDBERG, Justice,

text:
    Dennis Wayne SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 49245.
    Supreme Court of Florida.
    Nov. 9, 1978.

      Robert E. Pyle, Lake Alfred, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This is a direct appeal by Dennis Wayne Smith from his conviction in the Polk County Circuit Court for murder in the first degree and a sentence of death imposed by the trial judge.

After taking part in the murder of John Mitchell Arnsdorff, Wesley Johnson turned himself into the police. Eventually he was charged with two other murders, as well. In the meantime he implicated Smith in the Arnsdorff murder and, accordingly, Smith was indicated for first degree murder. Smith pleaded not guilty and the cause was set for trial. Before its start, Johnson pleaded nolo contendere to the three murders and was to be given concurrent life sentences in return for testimony against Smith, the sentences to be imposed after the testimony.

Johnson testified to the following: He, Smith and a man named Wagner met at a bar and decided to rob a homosexual in order to obtain money for beer. The three then went to another bar where they met Arnsdorff. On the pretext of giving a party, they invited him to a shack Johnson was staying in. Arnsdorff and Johnson drove in Arnsdorff’s car, Smith and Wagner in Smith’s car. Johnson and Arnsdorff reached the shack first. Smith and Wagner had taken a wrong turn and were late, but Johnson kept Arnsdorff from leaving by showing him some silver casting equipment. When the former two arrived the men drank beer for a short while and then Johnson grabbed Arnsdorff while Wagner threatened him with an ice pick. While Arnsdorff was restrained Smith took Arns-dorff’s wallet, in which there was $6.00, from his car and one of the three removed his wrist watch. They then forced Arns-dorff into the trunk of his own car. Their intention was to abandon him in a remote spot. Wagner and Johnson, in Arnsdorff’s car, were following Smith in his car when they ran into a bridge abutment, flattening a tire. (Throughout the night the three had been drinking heavily.) After an unsuccessful attempt to fix it, the two cars proceeded until the wheel with the flat tire came loose. One of the three opened the trunk and Smith hit Arnsdorff with a tire tool. Wagner then began to stab him with the ice pick. Believing Arnsdorff to be dead they shut the trunk with him in it and went to a gas station. Smith told Wagner to get some gas, which he did. They returned to Arnsdorff’s car and at Smith’s direction, Johnson doused it with gas and set it afire. (Expert opinion that Arnsdorff died from incineration or asphyxiation from smoke caused by the fire had been introduced into evidence earlier.)

At this point in Johnson’s narration the court excused the jury to allow the defense to renew a pre-trial motion that testimony by Johnson as to a second murder by him and Smith be suppressed. The court denied the motion, as it had previously done, on the ground that the second murder, though separate from the first, was part, just as Arns-dorff’s, of a single transaction, the robbery, and, therefore, relevant to the Arnsdorff murder.

Johnson then testified that after burning the car he, Smith and Wagner immediately went to a swimming hole. An argument over division of the $6.00 and watch ensued between Smith and Wagner. Smith yelled to Johnson to grab Wagner, and while Johnson held him Smith stabbed him with the ice pick. At Smith’s direction Johnson pulled Wagner into the swimming hole and held him under water to ensure his death. They transported his body elsewhere and buried it.

Smith took the stand in his own defense. He admitted that he was in the company of Wagner and Johnson on the night of the murder, but claimed that the robbery was their idea. Although he accompanied them to the second bar and left it with them and the victim, he testified that they drove him straight from the bar to his apartment, because he was too intoxicated by beer and drugs to do anything but sleep. That was the last, according to Smith, he saw of them that night. No evidence was introduced by the defense to corroborate the alibi.

I. CONVICTION

There is sufficient evidence to sustain the jury’s verdict of guilty. In addition to the direct evidence of guilt provided by Johnson’s testimony there was considerable circumstantial evidence against Smith. It included testimony of observers at the second bar, which fit Johnson’s story of what happened there better than Smith’s. Further, Smith was linked to the scene of the crime by expert opinion that tire tracks found there were unquestionably of his car. And the same expert testified that tennis shoe tracks found at the scene could have been made by Smith’s tennis shoes.

Smith argues, however, that reversible error was committed when Johnson’s testimony as to the second murder was admitted. After careful consideration of the entire record, we hold that evidence of the second murder was properly admitted as part of a single transaction which spanned the night of, and included, Arnsdorff’s murder.

Under the principle announced in Williams v. State, 110 So.2d 654 (Fla.1959), evidence of collateral crimes committed by the defendant is admissible if relevant for any purpose except to show the bad character or criminal propensity of the accused. Thus, the relevance of testimony of the second murder is the crucial factor in determining its admissibility.

Among the other purposes for which a collateral crime may be admitted under Williams is establishment of the entire context out of which the criminal conduct arose. Ashley v. State, 265 So.2d 685 (Fla. 1972). In Ashley there was admitted evidence of four murders by the defendant which occurred during the robbery of a restaurant within two hours of the murder for which he was being tried. This Court found no error in the admission of the collateral murders and the conviction was upheld. The factual situation is similar to the one now before us and the result we reach is consistent with Ashley.

At trial the state’s theory was that, as Johnson testified, the two murders occurred during one prolonged criminal episode. The three perpetrators met together and planned a robbery. The rest of the night was devoted to the robbery, its concealment, and the allocation of the proceeds. From the time the parties met and conspired to commit robbery, there was an unbroken chain of circumstances relating to and flowing from the robbery. Because of the robbery two related murders occurred within a short time of one another. Of the three men who committed the first murder, one was the victim of the second murder and the other two were his killers. Smith’s car was used throughout the criminal episode and the same ice pick was used in the robbery and both murders. The second murder is clearly a part of the context surrounding the murder for which Smith was tried. Evidence of the murder of Wagner is therefore relevant to illustrate the criminal context in which the first murder occurred.

Additionally, the testimony concerning the second homicide is relevant to place Smith at the scene of the first, since it shows that he was with the people involved in the initial homicide just an hour after it took place. He was also placed by this evidence in a car which was directly linked to the scene of the first murder.

II. PENALTY

Having heard the evidence in the sentencing phase of the trial, the jury recommended that Smith receive the death penalty. The trial court concurred and imposed the sentence of death upon Smith. In his findings of fact upon the sentence, the trial judge stated:

“1. I find that this capital felony was expecially henious, atrocious and cruel. The evidence establishes that the Defendant, Dennis Wayne Smith, approached the deceased, John Mitchell Arnsdorf, for the purpose of robbing him after the fashion known as “rolling a queer”. That pursuant to this design, the Defendant, Dennis Wayne Smith, caused the said John Mitchell Arnsdorf to be confined in the trunk of his (John Mitchell Arnsdorf) own vehicle at the point of an icepick and on pain or threat of death. That the said John Mitchell Arnsdorf was thereupon transported in the trunk of his own automobile, to a secluded location. While en-route, the vehicle in which the said John Mitchell Arnsdorf was being transported, was involved in a severe accident, disabling the right front wheel of the vehicle. Thereafter, the vehicle was driven to its final location by skidding or gouging the right front metal rim along the roadway. The vehicle finally came to a resting place in a secluded area because the right front wheel became embedded in the wet earth.
“The Defendant, Dennis Wayne Smith, then opened the trunk of the disabled vehicle, and after some conversation, began beating John Mitchell Arnsdorf about the head with a tire tool. Thereupon and in concert, an additional participant, James Wagner, Jr., began stabbing John Mitchell Arnsdorf with an icepick. The trunk was closed with the person of John Mitchell Arnsdorf still alive reposing therein. The three participants in this robbery then went to a service station and obtained a quantity of gasoline. They returned to the vehicle, containing the living person of John Mitchell Arns-dorf, and saturated the said vehicle, after which it was lighted, resulting in the death and cremation of the person and body of John Mitchell Arnsdorf.
“It was established by competent medical evidence that the said John Mitchell Arnsdorf died by asphyxiation, caused by the fire, and that he was alive while being cremated in a secure enclosure, from which there was no hope of escape, all of which was the design and at the principal direction of the defendant, Dennis Wayne Smith, herein.
“That the sum total proceeds of the robbery of the person of John Mitchell Arnsdorf, amounted to $6.00 and a watch.”

The trial court found no mitigating circumstances.

We agree with the trial judge that the death sentence is warranted by the facts of this case.

Since Johnson did not receive a death sentence, Smith argues that the death sentence was improperly imposed upon him. He relies upon this Court’s decision in Slater v. State, 316 So.2d 539 (Fla. 1975), in support of his position.

We find that this case is not controlled by Slater, wherein the “trigger man” received a life sentence while Slater, an accomplice who did not have the murder weapon in his hand, received the death penalty. We reduced Slater’s sentence to life. As evidenced by the record and the express findings of the trial judge, Smith’s culpability in the murder of Arnsdorff was much greater than that of Johnson. Smith originated the idea and directed Johnson to pour gasoline on the vehicle containing Arns-dorff and to ignite the vehicle. The record in no way suggests that Smith was acting under Johnson’s domination. To the contrary, Johnson was dominated by Smith on this particular evening. We find that, under the peculiar circumstances of this case, the disparity in sentences between Smith and Johnson is justifiable and is neither unreasonable nor capricious.

Accordingly, the judgment and sentence are affirmed.

It is so ordered.

ADKINS, BOYD, OVERTON and ALDERMAN, JJ., concur.

SUNDBERG, J., dissents with an opinion, with which ENGLAND, C. J., and HATCH-ETT, J., concur.

SUNDBERG, Justice,

dissenting.

I respectfully dissent. I firmly believe that it was reversible error to admit the testimony of the witness Johnson concerning the second homicide. Neither the principle of res gestae nor the rule announced in Williams v. State, 110 So.2d 654 (Fla. 1959), supports the admissibility of Johnson’s testimony under the facts of this case. Any ostensible probative value of Johnson’s testimony concerning the second homicide which bears upon the guilt of the appellant for the first homicide is so far outweighed by its prejudice to the defendant that it should not have been admitted into evidence. Accordingly, I would reverse the judgment of guilt, set aside the sentence of death, and remand this case for a new trial.

ENGLAND, C. J., and HATCHETT, J., concur.

      . Trial transcript, pp. 119-120.

      . This ground for admissibility is frequently referred to as “res gestae.”

      . Smith testified that his girlfriend was asleep at the apartment. Although she testified for the state on rebuttal she neither confirmed nor rebutted Smith’s alibi testimony.


author: BOOTH, Judge. MILLS, Judge, MILLS, Judge.

text:
    Mary Anne BAUGH, Appellant, v. Kenneth Richard BAUGH, Appellee.
    No. 11-31.
    District Court of Appeal of Florida, First District.
    May 25, 1978.
    On Rehearing July 21, 1978.
    John Peter Kirtz, Pensacola, for appellant.
    David H. Levin and James M. Barton, II, of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, Pensacola, for appel-lee.
   BOOTH, Judge.

This cause is before the Court on appeal from the Circuit Court, Escambia County, seeking review of a final judgment of dissolution of marriage which awarded the husband custody of two minor children, gave the husband possession of the marital home and title to the contents excepting the bedroom set of the wife, and awarded the wife three years rehabilitative alimony in the amount of $350 per month.

Appellant raises three main points on this appeal, but our disposition of the first point makes it unnecessary to rule on the other two. The record shows that Mrs. Baugh was not represented by counsel at the final hearing on September 7, 1977, that she was of doubtful competency and that the testimony indicated a need for psychiatric care.

Prior to the final hearing the court granted Mrs. Baugh’s counsel’s motion to withdraw. At the time of the hearing Mrs. Baugh stated to the court she was under the impression the court would appoint her a lawyer. The court correctly stated it had no authority to do so but indicated it was inclined to grant a continuance to allow her to obtain counsel, as follows:

“THE COURT: The thing that’s disturbing to me is, I don’t think that you are qualified to represent yourself.
MRS. BAUGH: Oh, I don’t either. I’m not a lawyer. No, I’m certainly not, in a matter like this.
THE COURT: There is no provision in the statutes for me to appoint you one in a civil case.
MRS. BAUGH: Oh, you can’t—
THE COURT: I cannot do that. And I do feel and I know Mr. Levin well enough to know that he would never under any circumstances want to take advantage of your lack of knowledge of the law. Now, if you were a lawyer, that’s another thing. He’ll out lawyer you if he can, but you’re not an attorney.
THE COURT: Do you Believe that you could get somebody, not necessarily Mr. Kirtz, to represent you?
MRS. BAUGH: Yes. But you know you do have to have a legal fee to obtain one.
THE COURT: Well, there are some attorneys who do this. Mr. Levin, I hate — I don’t want to postpone this thing, but. I wouldn’t — I’ll tell you this now, Mrs. Baugh. The Court has a responsibility to you and it has a responsibility to your husband. And, since Mr. Levin is an officer of this Court, this Court has a responsibility to Mr. Levin if he, in doing his duty for his client is able, because of his experience and your lack of experience, to place you in an untenable position, you could be unhappy and go and say, ‘Mr. Levin took advantage of me.’
MRS. BAUGH: I wouldn’t say that.
THE COURT: I know, but the thing about it, it could hurt Mr. Levin’s reputation if we proceeded in such a matter, and I would think you could get somebody.”

At that point the husband’s attorney objected to any delay in view of the presence of the children in the home at the time Mrs. Baugh was there and the husband was away at work. Discussion of the matter continued and the court stated:

“THE COURT: Well, now, here’s my situation. The Court feels a strong urgency as to the children. The Court feels a strong responsibility towards you in not proceeding without an attorney. However, according to Mr. Kirtz’s motion, [to withdraw as counsel] you never replied to his letters and you wouldn’t tell him anything and he had to withdraw.
THE COURT: If I give you a short extension of time, will you get a lawyer?
MRS. BAUGH: Yes, I will.
THE COURT: But, now, what I am going to do and I’m going to have the court reporter in here and I’m going to bring your two daughters in and I’m going to talk to them and I may make a temporary order placing them—
THE COURT: . . . And I may enter an emergency order today, Mr. Levin, as far as the children, if that’s appropriate. Let me get Joanne in here and I’m going to get [sic] a time so when you go to see whoever the lawyer is now, you’ll know.”

The court then suggested the wife seek a lawyer in the building across the street and stated:

“THE COURT: I could take you 3:00 o’clock Friday. That would give the other lawyer two days. I don’t think the issues are that—
MR. LEVIN: Let me ask if you’d do this, if you will call the children in here and question them and then give her the opportunity after that, without prejudice to her rights, to get her a lawyer and to come back in then . . . ”

Despite the foregoing, the court proceeded with the hearing and the children were questioned outside the presence of the parents by the court and the husband’s attorney concerning Mrs. Baugh’s conduct. The court questioned the teenage daughters as follows:

“THE COURT: You know, considering the fact that she keeps herself in her room and won’t talk to anybody, have you all wondered whether or not she needs psychiatric care?
SUSAN BAUGH: Oh, I think she does.
BONNIE BAUGH: So do I.”

Under the circumstances, the trial court had authority to enter such temporary or emergency orders as were necessary for the immediate protection of the children. The court should not, however, have proceeded with the final hearing and entered final judgment thereon in view of the court’s obvious concern about Mrs. Baugh’s inability to represent herself. Although she made no formal motion for continuance, the record shows Mrs. Baugh repeatedly expressed a need for an attorney. The court, and opposing counsel, initially at least, indicated that she would be afforded time to obtain counsel and that only a temporary order would result from the hearing held without her being represented. The error here was compounded by the husband’s attorney being allowed to question the children without Mrs. Baugh, or anyone representing her, being present.

Accordingly, the final judgment is VACATED and the cause is REMANDED for further proceedings consistent herewith, with directions that the court enter such temporary orders as are required by the circumstances relative to the care and custody of the minor children of the parties and, if appropriate under the evidence, an interim award of attorney fees.

BOYER, Acting C. J., concurs.

MILLS, J., dissents.

MILLS, Judge,

dissenting:

I dissent.

On 6 July 1976, the wife filed a petition seeking the dissolution of the marriage between her and the husband. The husband filed his answer on 27 July 1976 .admitting the marriage was irretrievably broken and requesting the trial court to award him the custody of the two minor children of the parties.

On 22 June 1977, the husband filed a counterpetition for dissolution of marriage and sought custody of the children and exclusive possession of the home and furnishings for the benefit of the children. A copy was mailed to the wife’s attorney. After trying to reach the wife by telephone, without success, the wife’s attorney wrote her a letter on 1 July explaining that she had to respond to the counterpetition within twenty days from 22 June or a default might be entered against her. He asked her if she desired for him to continue to represent her as she had not responded to his telephone calls. The husband’s attorney also wrote the wife a letter on the same date attaching a copy of his counterpetition and suggesting that she immediately contact her attorney concerning her representation.

On 2 August 1977, the husband’s attorney set the case for final hearing on 7 September.

On 5 August 1977, the wife’s attorney filed a motion to withdraw as her attorney because she failed to communicate with him and did not respond to his telephone calls and letters. He set the motion for hearing on 15 August serving the wife with copies of the motion and notice of hearing.

On 9 August 1977, the husband’s attorney mailed the wife a copy of his notice setting the case for final hearing on 7 September 1977.

By its order of 18 August, the court permitted the wife’s attorney to withdraw as her attorney and sent a copy to the wife.

On 7 September the wife showed up at the final hearing without an attorney. At first the court was hesitant to proceed without the wife having an attorney but after a discussion of the reasons why she had no attorney decided to proceed with the final hearing. At no time did the wife ask for a continuance but if by some stretch of the imagination she could be considered to have moved for a continuance under the facts presented by this record, the court certainly did not abuse its discretion in denying a continuance. The wife refused to cooperate with the attorney employed by her and made no effort to employ a replacement when he was permitted to withdraw, although there was plenty of time for her to engage new counsel. In fact, when the court entered a judgment adverse to her, it took her only several days to contact, employ and arrange for her previous attorney to appeal the judgment to the court.

The wife was given every opportunity to have her day in court. For reasons known only to her, she did not take advantage of this right. To the contrary, she deliberately refused to take advantage of this right. But now she asks that we permit her to start over. Too late. She should have thought of this sooner and proceeded properly at the appropriate time.

Although the majority has stated that the wife was of doubtful competency and in need of psychiatric care, I do not feel competent to reach such a conclusion from merely reading a cold record and without the benefit of observing the wife. I would leave this decision to the trial court which did not reach this conclusion.

I find no merit in the arguments advanced by the wife and I would affirm the judgment appealed in all respects.

ON PETITION FOR REHEARING GRANTED

MILLS, Judge.

We grant the husband’s petition for rehearing and recede from the majority opinion filed on 25 May 1978 for the reasons set forth in the following majority opinion.

On 6 July 1976, the wife filed a petition seeking the dissolution of the marriage between her and the husband. The husband filed his answer on 27 July 1976 admitting the marriage was irretrievably broken and requesting the trial court to award him the custody of the two minor children of the parties.

On 22 June 1977, the husband filed a counterpetition for dissolution of marriage and sought custody of the children and exclusive possession of the home and furnishings for the benefit of the children. A copy was mailed to the wife’s attorney. After trying to reach the wife by telephone, without success, the wife’s attorney wrote her a letter on 1 July explaining that she had to respond to the counterpetition within twenty days from 22 June or a default might be entered against her. He asked her if she desired for him to continue to represent her as she had not responded to his telephone calls. The husband’s attorney also wrote the wife a letter on the same date attaching a copy of his counterpetition and suggesting that she immediately contact her attorney concerning her representation.

On 2 August 1977, The husband’s attorney set the case for final hearing on 7 September.

On 5 August 1977, the wife’s attorney filed a motion to withdraw as her attorney because she failed to communicate with him and did not respond to his telephone calls and letters. He set the motion for hearing on 15 August serving the wife with copies of the motion and notice of hearing.

On 9 August 1977, the husband’s attorney mailed the wife a copy of his notice setting the case for final hearing on 7 September 1977.

By its order of 18 August, the court permitted the wife’s attorney to withdraw as her attorney and sent a copy to the wife.

On 7 September the wife showed up at the final hearing without an attorney. At first, the court was hesitant to proceed without the wife having an attorney but after a discussion of the reasons why she had no attorney decided to proceed with the final hearing. At no time did the wife ask for a continuance but if by some stretch of the imagination she could be considered to have moved for a continuance under the facts presented by this record, the court certainly did not abuse its discretion in denying a continuance. The wife refused to cooperate with the attorney employed by her and made no effort to employ a replacement when he was permitted to withdraw, although there was plenty of time for her to engage new counsel. In fact, when the court entered a judgment adverse to her, it took her only several days to contact, employ and arrange for her previous attorney to appeal the judgment to the court.

The wife was given every opportunity to have her day in court. For reasons known only to her, she did not take advantage of this right. To the contrary, she deliberately refused to take advantage of this right. But now she asks that we permit her to start over. Too late. She should have thought of this sooner and proceeded properly at the appropriate time.

We find no merit in the arguments advanced by the wife and would affirm the judgment appealed in all respects.

BOYER, J., concurs.

BOOTH, J., dissents in accordance with prior opinion.


author: MILLS, Acting Chief Judge.

text:
    CITY OF GAINESVILLE, a Municipal Corporation, Appellant, v. Fred M. CONE, Appellee.
    No. HH-220.
    District Court of Appeal of Florida, First District.
    Oct. 24, 1978.
    Rehearing Denied Jan. 17, 1979.

      Osee R. Fagan of Fagan, Crouch, Anderson, Folds & Reiman, Gainesville, for appellant.
    Richard T. Jones, Norm La Coe, Gaines-ville, for appellee.
   MILLS, Acting Chief Judge.

The City of Gainesville (City) appeals from a final judgment entered in favor of Fred M. Cone (Cone) following a nonjury trial in a zoning dispute.

The issues raised by this appeal are:

1. Whether the Comprehensive Development Plan enacted by the City in 1970 affected the Comprehensive Zoning Plan enacted by the City in 1962.

2.Whether Cone, the property owner, had a vested right in a particular zoning category for his property.

3. Whether the City may consider a negative recommendation of the City Plan Board on a petition affecting land use regulations initiated by it.

4. Whether the trial court had authority to direct the rezoning of Cone’s property to a specific zoning category.

In March 1976, Cone petitioned the City, through the City Plan Board, to change the zoning designation of his property from R-1A (single family residential) to R-3 (multiple family residential, high density district). In 1970 the City had adopted a Comprehensive Development Plan, part of which was a Land Use Plan, which was to be used as a guide to future land use. The Land Use Plan map designated the Cone Property for multi-family development. After the petition was filed, the City Plan Board held one or more hearings on the matter. At a subsequent hearing, a number of adjacent and abutting property owners appeared before the Plan Board to oppose the zoning petition and to urge the Plan Board to amend the Land Use Plan from high density to low density residential. The Plan Board decided to file a formal petition, with itself as the petitioner, to change the designation in the Land Use Plan. At a later hearing, the Plan Board heard the presentations of Cone and of the abutting property owners in opposition to the request of Cone, as well as the presentations of the abutting property owners in support of the proposed change of the Land Use Plan. Following these hearings, the Plan Board voted to recommend against changing the designation in the Land Use Plan and voted to recommend against the granting of Cone’s requested zoning change. The land use change petition and the petition of Cone were both certified to the City Commission for action.

After several hearings, the City adopted Ordinance No. 2185 which changed the Comprehensive Development (land use) Plan, and denied Cone’s petition to change the zoning classification of his property. Cone then filed suit attacking the validity of the City’s actions.

The trial court did not consider the zoning or rezoning of this property on its merits but found that the City’s action was void for three reasons: (1) At the time the Plan Board petitioned for change in the Comprehensive Land Use Plan, it already had under advisement Cone’s petition to change the zoning designation of his property. Cone had a right to the use of his property in the manner described by the Comprehensive Land Use Plan which right vested at the time he filed his petition for zoning in conformity with the Land Use Plan. (2) The document which the abutting property owners filed was not a formal petition as required under the city charter, and since the Plan Board, in effect, dismissed its own petition by refusing to recommend it, that petition was not properly before the City Commission. Therefore, the only valid petition before the City Commission at the time of its action was the petition of Cone to change the zoning classification. (3) The Plan Board violated the following ordinance:

“. . . The City Plan Board may not recommend any change to the City Commission inconsistent with the comprehensive plan, unless at the same time or prior thereto, a recommendation is made by the City Plan Board to change the comprehensive development plan in order that such plan and any recommended changes will be consistent with each other.” (§ 2-37.1(c), Code of Ordinances)

The trial court therefore held Ordinance No. 2185 void and of no effect, declared the action of the City denying Cone's petition for rezoning null and void, and remanded the cause to the City for reconsideration consistent with the opinions expressed in the order.

The adoption of the Comprehensive Development Plan did not change the zoning or land use regulations of a single parcel of property in the City. The existing zoning categories remained in full force and effect and still remain in full force and effect. It was not the intention of the Comprehensive Development Plan nor that of the City Commission which adopted it to place any of its suggestions or provisions in force. They were to serve merely as a guide for future decisions relating to rezoning petitions and growth and development of the City. This clearly appears from page one of the narrative text of the Comprehensive Development Plan of 1970 which states:

“It should be emphasized that the Plan is only a guide; it is not a zoning plan by which all future land uses will be determined. It will, however, provide a framework for making sound zoning decisions in the future. The existing zoning will remain in effect as the legal basis for developing property, unless and until such time as formal changes are made in the Zoning Ordinance in accordance with the established legal procedure. It is hoped that the logic of this Plan will encourage such changes.”

An owner of property acquires no vested rights in the continuation of existing zoning or land use regulations as to such property unless matters creating an estoppel against the zoning authority have arisen. City of Miami Beach v. 8701 Collins Avenue, 77 So.2d 428 (Fla.1954). An estoppel cannot arise so as to create a vested right in a particular zoning category in the absence of the expenditure of money in compliance with the existing zoning. Edelstein v. Dade County, 171 So.2d 611 (Fla. 3d DCA 1965). There is no suggestion of estoppel in the record before us. It appears to be quite incongruous to suggest that while the law is clear that one may not acquire any vested right in the continuation of an existing zoning category, he may upon the filing of a petition for a new zoning category, acquire a vested right in the zoning category. Further, it is clear that a city may adopt an amendment to a land use ordinance even during pendency of a controversy and the controversy must then be determined on the basis of the law as amended. City of Coral Gables v. Sakolsky, 215 So.2d 329 (Fla. 3d DCA 1968). Cone had no vested rights to a continuation of either existing R-1A zoning or to the proposed zoning which he sought.

The recommendations of the Plan Board to the City Commission were not consistent with each other, but it is not the action of the Plan Board, an advisory body, that is here under attack. The City Commission did its duty by acting consistently in denying Cone’s rezoning petition, maintaining the R-1A zoning, while at the same time adopting Ordinance No. 2185 which designated that property and nearby affected areas for single family residential use on the land use map. Such action by the City Commission was in conformity with its own ordinances and procedures relating to land use and rezoning decisions. The trial court ruled that the negative recommendation by the Plan Board on the land use petition amounted to a dismissal of the petition, therefore, the petition was not properly before the City Commission. This reasoning is incorrect. Both petitions were properly before the City Commission. Section 2-39(f) of the Gainesville City Code provides that proposals originating with the City Commission or initiated by the City Plan Board shall be processed in the same manner as other petitions. Section 2-43 of the Gainesville Code provides that the City Commission may not consider a petition without first securing a recommendation from the Plan Board. Thus, all matters relating to zoning and land use must first be considered by the Plan Board as an advisory body, following which recommendations will be made to the City Commission. The City Commission then notices and holds its own public hearing, whether such petitions have an affirmative or negative recommendation.

Although the final judgment appears to allow a reconsideration of the property in dispute by the City, the court earlier in its judgment declared that Cone had a vested right to use his property in accordance with the land use plan in effect at the time of the filing of his petition. The effect of the judgment is to compel the City to designate Cone’s property for R — 3 zoning. This result is improper.

We reverse the final judgment appealed, but because the trial court did not consider this rezoning dispute on the merits, we remand this case to the trial court for its consideration on the merits.

ERVIN and BOOTH, JJ., concur.


author: BOOTH, Judge. MELVIN, Judge,

text:
    Olen W. MEREDITH, Appellant, v. ST. JOHNS COUNTY, Florida, and the State of Florida, Appellees.
    No. II-375.
    District Court of Appeal of Florida, First District.
    Oct. 31, 1978.
    Geoffrey B. Dobson, St. Augustine, for appellant.
    Robert Shevin, Atty. Gen., Robert K. Mathis, Asst. State’s Atty., Willard Howatt, James Sisco, St. Augustine, for appellees.
   BOOTH, Judge.

This cause is before us on appeal from an order of the Circuit Court, St. Johns County, awarding attorney’s fees to the appellant for his representation of an indigent defendant charged with first degree murder.

The appellant was appointed and began his representation in this case at a time when § 925.035, Florida Statutes, provided a maximum attorney’s fee of $1,000 for the defense of an indigent accused of a capital crime. Subsequently, but before the representation was concluded, the law was changed to provide a “reasonable” fee.

Appellant Meredith was one of two attorneys appointed to represent the indigent. The trial court’s award of attorney fees for appellant Meredith of $3,500 was based on more than 305 hours of appellant’s time and included two trials (the first one having ended in a mistrial) in what was clearly a complex case. There was no finding, and appellee does not contend, that the time devoted to the representation was extravagant or unnecessary.

We have considered the plea of the county that the change in the law has found it unprepared to pay fees greater than the previous statutory maximum and the plea of appointed counsel that the fee awarded below, amounting to $11.12 per hour, is clearly unreasonable, and with both considerations in mind, including the recent decision of this Court in Murphy v. Escambia County, 358 So.2d 903 (Fla. 1st DCA 1978), we hold that the sum of $6,500 for services at the trial level be awarded as an amount constituting the minimum fee that can be justified as reasonable under the facts here.

Accordingly, the order sought to be reviewed is REVERSED and the cause REMANDED with directions that the appellee pay the appellant for his services in the amount of $6,500, for which judgment is hereby entered against appellees and execution is directed to be issued by the clerk of the trial court.

SMITH, Acting C. J., concurs.

MELVIN, J., dissents.

MELVIN, Judge,

dissents.

I have considered with mixed emotions the process by which the majority now trespasses upon the fact-finding function that heretofore appellate courts have been content to recognize as the domain of the jury, or the trial judge, as the ease may be.

At the time the appellant was appointed, the maximum sum the court could have allowed to him to be paid from the county tax funds would have been $750.00. Prior to the conclusion of the case, the legislature again addressed the subject of the maximum sum of public tax funds that may be paid appointed counsel in a criminal case.

Interesting indeed would have been the persuasive argument this court would have considered in the attack made upon any legislation that, post appointment would have reduced below $750.00 the amount of fee payable to counsel for his most competent service rendered to his client. The law in effect at the time of appointment with much reason would, I believe, have been urged as the proper measure to apply in this case.

Without regard to whether the legislature considered the maximum sum of $750.00 as being too high or low, it changed the statute’s rigidity and proclaimed that the court should order the payment of a “reasonable” fee. By this enactment, I do not perceive the legislative intent to be to erase the time-honored tradition and duty that for centuries have called attorneys to the bar of the court, there with pride and deep respect for his duties as an officer of the court, to hear from the judge the words, “The Court appoints you as the trial attorney for this indigent Defendant”. Prior to Section 925.035, if the defendant was charged with a capital offense, a stipend of $100.00 could be allowed by the court for the attorney’s services. The attorney defended his client knowing no further money would be available from state or county tax funds. If the case was non-capital, no compensation, except that flowing from the joy of a task well done, would be experienced.

Now we have for review the reasonableness of the judgment of the Chief Judge of the Circuit, in which the court allowed, in the light of all his years of judicial experience, the trial in question, and the testimony of expert witnesses, a fee in excess of the original $750.00 maximum. The amount the trial court considered to be reasonable was the sum of $3,500.00. From the testimony presented to the trial court, the appellant would have the attorney’s fee set in an amount of $7,500.00 to $10,000.00, to be assessed against the county.

The trial court did not consider, in the light of all the facts, such sum to be reasonable. Neither does the majority of this court. The majority in effect holds the trial court to a degree of abuse of discretion in allowing the fee complained of, then it proceeds by some arbitrary standard to fix a larger amount of money that it finds, from distant appellate consideration, to be reasonable.

The trial judge was and is better situated to fix the fee than is this court from a review of the cold printed record.

With all due respect to the enlightened conclusion of the majority, I register my dissent. We should be mindful that what we decide here does not just apply to the more affluent counties, but applies with like impact to the small counties with a small tax base and a small or no reserve.

The command of tortured logic that requires payment of maximum hour rates to attorneys regardless of whether their attention is only addressed to a fundamental proposition must be displaced by the more tempered view that one representing an indigent defendant may not in reason expect the taxpayer to respond in payment as if he were a willing party to the attorney’s fee contract.

It may well be that the legislature next to assemble will address the issue of payment for defense of indigent state prisoners from a state fund. For many counties, large, medium and small, the hour is late. I, therefore, note my dissent.

      . Ch. 76-287, Laws of Fla.

      . Section 925.035, Florida Statutes (1975) provided that, “. . .If the court appoints an attorney other than the [P]ublic [D]efender, the attorney shall be allowed reasonable compensation not to exceed $750 for the trial. If more than one attorney is appointed, the total compensation for the trial shall not exceed $1,000. . ” In this case, appellant had the assistance of co-counsel in the representation of the client, so it appears that, all things being equal, his actual maximum compensation under the old statute would have been $500.

      . Ch. 19554, § 7, Laws of Florida (1939).


author: DOWNEY, Chief Judge.

text:
    Lyle LEE, Appellant, v. Patsy P. LEE, Appellee.
    No. 77-1327.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 1978.
    Rehearing Denied Jan. 18, 1979.

      Harry G. Carratt of Morgan, Carratt & O’Connor, P.A., Fort Lauderdale, for appellant.
    S. Robert Zimmerman, Pompano Beach, for appellee.
   DOWNEY, Chief Judge.

The parties of this cause were married in excess of 21 years. The have one child who has reached majority and is self supporting. During the marriage the husband frequently worked two jobs and, as a result, the parties accumulated a one-half interest in an apartment building, which one-half interest was worth approximately $48,000; stocks and bonds and promissory notes worth $20,000; furniture and other personal property worth $3,000; and an automobile. All of the foregoing property was jointly owned. During the marriage the wife worked in a business owned by a corporation whose stock was owned 50% by the husband, 48% by the wife, and 2% by another person.

The trial judge awarded the wife the husband’s entire interest in all of the assets, except the business, as lump sum alimony. We find that to be error on the facts of the case.

Lump sum alimony is to be awarded like any other kind of alimony: only when there is a demonstrated need and an ability to pay. However, there is yet another requirement to justify a lump sum award and that is there must be some particular circumstance or equity which makes a lump sum award appropriate. Absent a particular circumstance or equity, if alimony is warranted it must be either periodic or rehabilitative, or in an appropriate case it may be a combination of both types of alimony. As this court said in Gesford v. Gesford, 337 So.2d 1017 (Fla. 4th DCA 1976):

“ . . . The Court specifically found that wife had no special equity in husband’s undivided one-half interest. Therefore before the wife can be awarded the husband’s interest as a form of lump sum alimony there must be a positive showing of necessity on the part of the wife as well as the pecuniary ability of the husband to support that necessity. Cummings v. Cummings, 330 So.2d 134 (Fla.1976); Gordon v. Gordon, 192 So.2d 514 (Fla. 1st DCA 1966).” 337 So.2d at 1018.

The record in this case would support an award of periodic alimony. However, we find no circumstances or equities which justify stripping the husband of all his assets, except the ski school business. As this court said in McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977), an award of alimony should not result in either spouse’s suffering a shocking change in financial condition. It seems to us that the award in this case has caused just such a change.

Accordingly, we reverse the lump sum alimony provision of the final judgment appealed from and remand the cause to the trial court with directions to determine a fair award of periodic alimony for the wife.

BERANEK, J, and BAKER, JOSEPH, Associate Judge, concur.

      . Yandell v. Yandell, 39 So.2d 554 (Fla.1949); Storer v. Storer, 353 So.2d 152 (Fla. 3rd DCA 1977).


text:
    James Eugene LAWSON et ux., Appellants, v. Cleo MURRAY et ux., Appellees.
    No. JJ-145.
    District Court of Appeal of Florida, First District.
    Nov. 3, 1978.
    Rehearing Denied Jan. 18, 1979.
    John F. Roscow, III of Scruggs, Carmichael, Long, Tomlinson, Roscow, Pridgeon, Helpling & Young, Gainesville, for appellants.
    John R. Weed of Weed, Bishop & Osteen, Perry, for appellees.
   MITCHELL, HENRY CLAY, Jr., Associate Judge.

The Appellants Lawson, have filed this appeal for review of an adverse final judgment by jury trial awarding the Appellees Murray possession of certain real property.

The Appellees filed their action in ejectment seeking the recovery of certain real property, alleging that they were the owners and in possession of the SW Vi of the SW Vi in Section 30. Specifically they alleged that the Lawsons were claiming the western 160 feet of their property and asked that they be put in possession. Alternatively, they claimed title to the 160 foot section by adverse possession should it be found not to lie within the legal description of their property.

The Appellees allege that the disputed lands lay in Section 30, Township 4 South, Range 11 East, while Appellants contended that the property in question was situate in Section 25, Township 4 South, Range 10 East. The primary dispute pertains to the determination of the original location of the United States Government Survey Monument for the corner between Sections 25 and 36 in Range 10 East and Sections 30 and 31 in Range 11 East as well as the location of the range line.

Three surveyors testified for the Appellants. By using the original government field notes and plat, they had retraced the original government survey, found the requisite witnesses of the original monument and re-established the common corner of Sections 25, 30, 36 and 31. The Appellees’ surveyor, Drew, admitted that he also found the same corner and proved it as well but deemed it, completely contrary to the field notes and government plat, to be only the corner of Sections 36 and 31. He then proceeded to jog the corner 170 feet westerly to a hewn stake standing in the woods which could not be referred to in the government notes. The government field notes called for no jog. The Appellants contend that there is not any competent and substantial evidence to support the jury’s verdict on this basis. We agree.

There was no dispute that the original monument situated upon the range line was missing. It is necessary to retrace the old government survey whenever possible so as to re-establish the lines of the original survey and their true original positions according to the best available evidence of the position of the original corners. See this Court’s decision in Barba Inv. Co. v. Walker, 350 So.2d 509 (Fla. 1st DCA 1977), which is somewhat analogous to the present case. In making a resurvey, the question is not where an entirely accurate survey would locate the lines, but where did the original survey locate such lines. Akin v. Godwin, 49 So.2d 604 (Fla.1951). Therefore, the resurvey performed by the survey- or for the Appellees was not competent evidence of a true line fixed by the original plat. This Court held in Bishop v. Johnson, 100 So.2d 817 (Fla. 1st DCA 1958) as follows:

It is well settled that the description of land and plats from field notes of an original survey filed in the General Land Office are conclusive, and section lines and corners as laid down therein are binding upon the General Government and all parties concerned. 100 So.2d at 820.

The three surveyors who testified for the Appellants all retraced the original government survey. The surveyor for the Appel-lees disregarded the original government field notes and plat.

Also, the Appellants contend that there was not competent evidence to support the jury’s verdict on the issue of adverse possession by the Appellees of the disputed strip of land. We agree.

The theory of adverse possession under color of title is inapplicable to this case. There is no testimony anywhere in the record that the Appellees had color of title to any land in Section 25. The Appellees contend that it was not necessary for them to return the disputed lands for taxes. And indeed, under this Court’s decision in Kiser v. Howard, 133 So.2d 746 (Fla. 1st DCA 1961), we would agree. This Court stated in Kiser, supra, that when a person claims title to land protected by a substantial enclosure and founded upon a written instrument, land contiguous thereto protected by such enclosure shall be deemed to have been possessed, occupied and included within the land described in the written instrument. However, Kiser, supra, has been overruled by our Supreme Court in Meyer v. Law, 287 So.2d 37 (Fla.1973). Meyer, supra, holds that a claimant’s color of title is limited to the property shown in the public records and no color of title extends from that ownership to the contiguous lands of his neighbor. Thus, the decision in Kiser, supra, remains only as a relic of the past.

Turning next to Section 95.18, Florida Statutes, Adverse Possession Without Color of Title, there must be actual continued occupation for seven years of the premises under a claim of title exclusive of any other right but not founded upon a written instrument and a return of the land for taxes. The record is absent of any evidence that the Appellees ever, at any time, returned any lands in Section 25 for taxes.

However, the Appellees could have acquired title to the disputed strip of land by adverse possession without color of title prior to 1939. The record must reflect that the possession of the Appellees’ predecessors for seven years prior to July 1st, 1939 was open, notorious, hostile and continuous to the rights of the Appellants and their predecessors. Moreover, it was necessary that proof of such possession be clear and convincing. Wilson v. Tanner, 346 So.2d 1077 (Fla. 1st DCA 1977). The two elements relating to proof of occupation required under the old statutes were substantial enclosure or cultivation or other improvements. Section 2936(1), vol. 2, Revised General Statutes of Florida (1920).

A careful examination of the record reflects that there was no evidence or reasonable inferences to support the Appellees’ position on the two elements relating to proof of occupation required under the old statutes.

Reluctant as we are to disturb the verdict of the jury, the failure of competent and substantial evidence, in this case, to support the verdict requires a reversal. The trial court erred in refusing to grant Appellants’ motion for a directed verdict. Accordingly, the judgment appealed is reversed with directions that the court enter a judgment in favor of the Appellants.

REVERSED.

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

      . On July 1, 1939, Ch. 19254, § 2, Laws of Florida (1939), became effective requiring that in addition to occupancy of the land for seven continuous years, an adverse possessor must return the land for taxes.


text:
    Robert Donald FRAZIER, Appellant, v. STATE of Florida, Appellee.
    No. JJ-265.
    District Court of Appeal of Florida, First District.
    Nov. 8, 1978.
    Rehearing Denied Jan. 23, 1979.

      S. Gunter Toney, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen. and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   MITCHELL, HENRY CLAY, Jr., Associate Judge.

Appellant Frazier, appeals his conviction of grand larceny. He raises two points on appeal, the first of which challenges the trial court’s denial of his motion to suppress certain evidence which he alleges was seized pursuant to an unlawful search. His second ground on appeal alleges insufficiency of the evidence to support the verdict.

On June 11, 1977, Laura Stevens, an employee of the Sunshine Junior Food Store in Medart, Wakulla County, Florida, noticed that some money she had placed in a pull bag was missing. Circumstances surrounding the missing money were revealed by her to the effect that Appellant had come into the store that evening and started talking to her and a co-worker. Appellant then purchased a six-pack of beer and continued to talk to the two women. He was standing in the door of the office in which Laura Stevens was securing the money. He was standing so close to her that he had to move in order for her to come out of the office and return to the counter. Laura Stevens put somewhere between $250 and $300 in the money bag. In addition, she also put an unknown amount of checks in the bag. She also testified to the denominations of the money she placed in the bag. After she put the money in the office she returned to her duties and that time Appellant left the store forgetting to take his six-pack of beer with him. She discovered the money missing within five minutes after his departure. Although she never saw Appellant actually go into the office, one could have reached the money while standing in the doorway. A search of the entire office failed to reveal the money.

While the women were in the process of calling the police, the Appellant Frazier returned to the store to buy another six-pack of beer. Laura Stevens did not confront him with the fact of the missing money because she was upset. Her co-worker wrote down the tag number of the vehicle which Frazier was driving. Hitchcock, Deputy Sheriff, investigated the report phoned in from the food store. He was given a description of Appellant and the tag number of his vehicle. Upon search he located the vehicle on Highway 319 parked on the side of the highway. Hitchcock stated that the vehicle was parked so close to the pavement of U.S. 319 that it constituted a traffic hazard. The vehicle was impounded and searched. The search revealed $225 in currency in similar denominations to the money reported stolen. He also found with the money, a scrap of paper which appeared to have come from a check. Hitchcock did not find the zippered pull bag.

Frazier testified, at his jury trial, admitting that he had been at the store and purchased the beer. However, he denied taking the money. He stated that he and a companion left the store and drove to Panacea where he and his companion shot pool and later returned a second time to the store to purchase cigarettes. He purchased the cigarettes and left the store for the second time. He stated that Laura Stevens appeared to be nervous and upset. Upon leaving the store he went to the softball field to give an ice cooler to his brother. He then drove to his home. He left his home to drive to a lounge in Panacea, but ran out of gas. He stated that he left his truck parked beside the road and caught a ride to the lounge. He denied that he had entered the office or stood in the doorway thereto, or took the bag of money. He could not explain the presence of the money found in his truck. Frazier’s companion testified that he arrived at the store with Frazier for the purpose of purchasing the beer. They returned to the softball field where he joined his wife and children. He stated that he did not observe Frazier behind the counter in the store and he did not observe anyone place money in Frazier’s truck.

From the foregoing facts, it clearly appears that the search was valid. The deputy sheriff had probable cause to believe the truck contained fruits of the crime. Consequently, we find that it was proper to impound the truck and conduct the search. Even had there not been any incident at the food store, the location of the vehicle in relation to the highway justified its im-poundment. See Mattson v. State, 328 So.2d 244 (Fla. 1st DCA 1977); and State v. Sanders, 266 So.2d 79 (Fla. 4th DCA 1972).

We also find that the evidence was sufficient to support the verdict. The record reflects that the Appellant had access to the money which was discovered missing five minutes after he left the store. The amount, kind and denominations of the currency found in Appellant’s truck very closely matched the currency reported missing.

By its verdict, the jury found the Appellant’s testimony denying knowledge of the money in the truck unworthy of belief. The evidence was sufficient to sustain the finding of the jury.

For these reasons, the conviction is hereby

AFFIRMED.

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


author: BOYER, Acting Chief Judge.

text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY and Chapman & Sons, Inc., Appellants, v. GULF FLORIDA DEVELOPMENT CORPORATION, Appellee.
    No. DD-480.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1978.
    Rehearing Denied Jan. 18, 1979.

      Paul P. Sanford of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, Thomas T. Remington and Walter J. Smith of Smith, Grimsley, Barron & Remington, Fort Walton Beach, for appellants.
    Lawrence W. Oberhausen and Wilmer H. Mitchell of Mitchell & Oberhausen, Pensacola, for appellee.
   BOYER, Acting Chief Judge.

Appellants, United States Fidelity and Guaranty Company (USF&G) and Chapman & Sons, Inc. (Chapman) appeal a final judgment rendered after the jury reassembled and returned a second verdict increasing the liability of both Chapman and USF&G.

In 1971, appellee, Gulf Florida Development Corporation (Gulf Florida), and Chapman entered into a contract for the construction of a condominium. USF&G issued a performance bond guaranteeing Chapman’s performance under the contract. A second contract was executed between Chapman and Gulf Florida in 1972. Two years later, Chapman was terminated and Gulf Florida filed a complaint against Chapman for breach of the 1972 construction contract. An amended complaint was filed naming USF&G as a defendant. After a lengthy trial, the jury was instructed and retired. At approximately 11:00 p. m. the jury returned a verdict against Chapman in the amount of $162,800.00 and against USF&G in the amount of $335,-400.00. Since the verdict was inconsistent with the instructions (the verdict against the surety was higher than the verdict against the contractor although the jury had been instructed that the damages which could be assessed against the surety were damages proved against the contractor) counsel for Gulf Florida moved that the jury be reinstructed and sent back to correct the verdict or in the alternative that the case be adjourned until the following morning so that the parties might research the question and determine the proper procedure to be followed. The court and counsel for both USF&G and Chapman were of the view that the verdict could not be sent back to the jury for clarification. The jury was polled by the court and discharged. In the early hours of the next morning, Gulf Florida filed a motion to reassemble the jury. A hearing was held, after which the court granted Gulf Florida’s motion and ordered the clerk not to record the verdict. The court’s order to reassemble instructed the jury that they remained under the same admonitions as the court had given them during the trial period. Five days later the jury was reassembled and the trial judge inquired of the jury members whether or not they had read the incorrect newspaper accounts of the trial and subsequent verdict. Five jurors said they had read the accounts but they responded negatively to the question by the court as to whether or not they had been swayed in any manner or prejudiced by virtue of having read the articles. The jury was reinstructed, the court giving both the original instructions and supplemental instructions. The jury retired and returned a second verdict finding against Chapman in the amount of $663,000.00 and against USF&G in the amount of $499,200.00. USF&G filed motions for remittitur and a new trial which were denied. This appeal followed.

The first point raised by USF&G and Chapman is whether or not the trial court erred in ordering the jury to reassemble and reconsider its verdict after the verdict had been rendered, received and published by the court and the jury had been discharged. We agree that the trial court erred and reverse.

After a jury has returned its verdict, has been discharged and separated, it cannot be recalled to alter or amend the ver-diet. Miller v. Hoc, 1 Fla. 189 (Fla.1847). The reason for this rule is that upon discharge, jury members lose their separate identity as a jury, and are subjected to extra-trial influences which may affect their verdict upon reassembly. Smith v. State, 330 So.2d 59 (Fla. 1st DCA 1976).

In Miller, upon which appellants rely, two cases were tried together and submitted to the jury. The jury returned only one verdict which found for the plaintiff and assessed damages of $1,500.00, without separating the damages in the two cases. The trial court discharged the jury. Four days later, the plaintiff moved to recall the jury to amend the verdict to apportion the damages between the two cases. The trial court granted the motion and the jury was recalled. The trial judge gave the jury additional instructions to cure the defect in the verdict after which the jury returned a verdict in proper form. On appeal, the Supreme Court ruled it was error to recall the jury after it had been discharged.

Gulf Florida relies on this court’s decision in Masters v. State, 344 So.2d 616 (Fla. 1st DCA 1977). However, in Masters, the jury was recalled within minutes of the discharge. The jury in that case remained an undispersed unit within the control of the court which is clearly distinguishable from the case sub judice. Concerning the outside influences upon that jury, the Masters court stated:

“[TJhere is nothing in the record to indicate that any outside influence had been brought to bear upon the jury, or any member of it during the interim before its recall, or that any opportunity existed for the jury, or any member of it, to be communicated with or tampered with by any person during the very few minutes that transpired between the time of discharge and recall.” 344 So.2d at page 619.

The jury in this case was separated and out of the presence of the court for a period in excess of five days. During that period the opportunity existed for the jury to be communicated with or tampered with by any person. In fact, several jurors admitted that they had read newspaper articles concerning the trial in the interim period after discharge.

Gulf Florida also relies on Cory v. Greyhound Lines, Inc., 257 So.2d 36 (Fla.1971) and Atlantic Coast Railroad Company v. Turpak, 225 So.2d 340 (Fla. 2nd DCA 1969). However, that reliance is misplaced. Those cases stand for the proposition that the trial court has the power to correct a verdict where the jury has incorrectly apportioned damages, erroneously transposed the amounts in consolidated actions, or has made other clerical errors in rendering the verdict or verdicts. Those cases note that if the jury’s verdict is a result of the jury’s misconception as to the facts and law involved, or confusion, and does not reflect the true intent of the jury, the court may not correct the verdict. We do not disagree with that law. It just simply isn’t applicable to the facts of this case. Sub judice, the case was resubmitted to the jury to render a corrected verdict after the jury had been discharged and the jury members had gone their separate ways and were at least subject to extra-trial influences.

Another error raised by USF&G is the court’s instructions to the jury concerning the damages recoverable from USF&G. The court instructed the jury that any damages assessed against Chapman should also be assessed against USF&G and that the elements of Gulf Florida’s damages were any unreasonable and excessive costs expended by the contractor, damages caused by delay in completing the contract and the cost of completing the building. USF&G contends that its liability is limited to the cost of completion and the cost of curing any defective work performed by Chapman.

The performance bond issued by USF&G specifically states:

“ * * * Whenever Contractor shall be, and declared by Owner to be in default under the Contract, the Owner having performed Owner’s obligations thereunder, the Surety may promptly remedy the default, or shall promptly
(1) Complete the Contract in accordance with its terms and conditions, or (2) Obtain a bid or bids for completing the Contract in accordance with its terms and conditions, and upon determination by Surety of the lowest responsible bidder, or, if the Owner elects, upon determination by the Owner and the Surety jointly of the lowest responsible bidder, arrange for a contract between such bidder and Owner, and make available as Work progresses (even though there should be a default or a succession of defaults under the contract or contracts of completion arranged under this paragraph) sufficient funds to pay the cost of completion less the balance of the contract price; but not exceeding, including other costs and damages for which the Surety may be liable hereunder, the amount set forth in the first paragraph hereof. The term ‘balance of the contract price’ as used in this paragraph, shall mean the total amount payable by Owner to Contractor under the Contract and any amendments thereto, less the amount properly paid by Owner to Contractor.” (Emphasis added)

The terms of the bond control the liability of USF&G. We agree that under the above-stated provisions of the bond, the damages recoverable from USF&G are limited to the cost of completion and the cost of curing any defective work performed by Chapman.

The final point we will address is the trial court’s alleged error in- denying USF&G’s motions for discharge on the grounds that a novation occurred and the Statute of Frauds barred Gulf Florida’s claim.

USF&G contends that the 1972 contract constituted a novation which extinguished the 1971 contract. USF&G reasons that since the 1972 contract was an entirely new and unambiguous agreement of equal or greater dignity than the 1971 contract, a novation existed as a matter of law. Evans v. Borkowski, 139 So.2d 472 (Fla. 1st DCA 1962). Further, USF&G argues that the statute of frauds, F.S. 725.01, bars Gulf Florida from establishing that USF&G guaranteed the performance of Chapman under the 1972 contract through oral testimony. Therefore USF&G concludes that since its bond is tied to the 1971 contract, it has no liability under the 1972 contract and should be discharged from all liability on its bond as a matter of law.

Whether or not a novation occurred is controlled by the intention of the parties. Sub judice, there was conflicting evidence concerning the intention of the parties to work a novation and the question was properly submitted to the jury. Lakeland Silex Brick Co. v. Jackson & Church Co., 124 Fla. 347, 168 So. 411 (Fla.1936). There is evidence in the record to support the jury’s conclusion that a novation did not occur. Because we affirm the jury’s finding that a novation did not occur, we need not reach USF&G’s argument concerning the defense of statute of frauds to the 1972 contract.

The other points raised by appellants are rendered moot as a result of our reversal of the jury’s verdict.

Accordingly, the ease is reversed and remanded for a hew trial on damages only.

MILLS and ERVIN, JJ., concur.