author: SIMMONS, Retired Circuit Judge. BOOKOUT, Judge, SIMMONS, Retired Circuit Judge.

text:
    Jimmy Ross TURLEY v. STATE.
    7 Div. 567.
    Court of Criminal Appeals of Alabama.
    March 7, 1978.
    Rehearing Denied April 4, 1978.

      J. L. Klinefelter, Burnham, Klinefelter, Halsey & Love, Anniston, for appellant.
    William J. Baxley, Atty. Gen. and Susan Beth Farmer, Asst. Atty. Gen., for the State.
   SIMMONS, Retired Circuit Judge.

Appellant-defendant, an indigent here and below, was indicted in Cleburne County for rape, tried and convicted on a plea of not guilty. The jury fixed punishment at ten years imprisonment. Judgment was properly entered and this appeal followed.

It appears that the alleged offense occurred on July 10,1973, about 10:30 or 11:00 A.M. This indictment was not the first indictment for the offense. The first indictment was fatally defective and demurrer thereto was sustained on April 8, 1974. We quote the bench notes:

“ * * * Demurrer sustained to indictment as indictment returned as being in the Circuit Court of Calhoun, Ala., instead of the Circuit Court of Cleburne County, Ala. Case refered (sic) back to Grand Jury defendant bond set at 5,000.-00.”

This entry was pursuant to Title 15, § 258, Code of Alabama, Recompiled 1958. Rogers v. State, 126 Ala. 40, 28 So. 619, 620; Davis v. State, 145 Ala. 69, 40 So. 663.

We will first collate some of the evidence adduced at the trial.

The prosecutrix, age 17 at the time, testified that she first saw defendant on Saturday before July 10, 1973, which latter date was on Tuesday. This was when he came to a store where she was waiting on customers to help out a friend of hers. Defendant was in a car with one Jimmy Strickland whom she knew. She serviced the car with gasoline.

The next time she saw defendant was on Tuesday, July 10,1973, following the Saturday when he was at the store. The second occasion was at her home during the absence of her husband. Defendant made inquiry about buying an old automobile which was stored in a shed disconnected from the house. She went with him to show him the car which he manifested an interest in buying. He was drinking beer at the time. As prosecutrix returned to the inside of her home, defendant followed her through the back door. He wanted their phone number so he could contact her husband about selling him the car. She went inside to get a pencil and paper. It was then that he followed her inside. They wound up in the living room.

She testified that he told her his name was Randy Robertson and that he lived at Glennaddie Apartments, 1-A. When she handed him a piece of paper, “he grabbed me and forced me down in a chair.”

“Q. What happened then?
A. I didn’t know — I didn’t know what was happening. I asked him to stop and he didn’t stop, he kept on and I knew what was going to happen when he forced himself on me. So I started to trying to get away from him and fighting the best I could and so I told him, I said ‘Please, just stop just for a minute.’ And I started to — I had to go through a hall and the front door was_To get to the other room and I thought if I could just get in the hall and to the door and I would be able to get out. And so we started back there and I started out the door and he grabbed my hair and he started to forcing me into the other room.
Q. Now, you say into the other room. What room was that?
A. Bedroom.
Q. All right. What happened then?
A. We went in there and he pulled me down and he started to forcing himself on me. Started to choking me and he pulled my hair and hit me.
Q. Now, let me ask you this. You first said that when you tried to run out the front door that he grabbed you by the hair and then after he forced you into the bedroom he still had you by the hair. Did he in fact pull any of your hair out?
A. Yes, sir.
Q. All right. Did he choke you?
A. Yes, sir.
Q. All right. Was he doing anything else?
A. Yes, sir. He told me to pull my panties down and pull my top up and he got on me and held me down and he was choking me.
Q. Now, let me ask you this, Mrs. Prater. You said that the defendant told you to pull your pants down and your top up. Did you in fact do that?
A. Yes, sir. He kept — I kept trying to get up, trying to get out but it didn’t help done (sic), I couldn’t get up. He kept forcing me down and choking me, pulling my hair and then he got on me like I said and he slid up on me, way up, toward my face with the lower part of his body and he. .He forced his private part in-.Into my - mouth.
Q. Now, had he taken off any part of his clothing at that point?
A. His pants.
Q. And you said he forced his private part into your mouth?
A. Yes, sir.
Q. What happened then?
A. Then he slid back down and he kept. - He told me. .He had asked me what time my husband was suppose to get home and I told him he was just gone for a few minutes and that he would be back, and after this_After he asked me this_When he asked me this, this was in the other room and he asked me again and said, ‘Now, what time is your husband coming home?’ And I told him 3:30 and he said ‘Well if he comes home early, I will just have to take care of him.’ And so he slid back down on me and he forced his private part into mine.”

The State adduced other evidence which supported the prosecutrix’s testimony that she was forced by fear and violence to have sexual relations with defendant. We refer to evidence about scratches on her body, complaints and efforts to get help immediately following the episode.

Defendant took the stand and categorically denied that he committed any act of violence on the person of prosecutrix or put her in fear to induce the sexual intercourse. He contended that he had an artificial hip that was a physical handicap. He admitted going to prosecutrix’s home on Tuesday, July 10,1973. He admitted seeing prosecu-trix at the gas station when, he claims, she came out to the car and kissed Jimmy Strickland.

Defendant admitted that he went to the home of prosecutrix to see an old car; that she went to a barn with him at which time he was drinking beer.

From the barn prosecutrix went back into the house where he was supposed to give her an address. They went into the living room where they engaged in some osculation.

We quote from Tr. p. 115:

“Q. Did her behavior create in your mind the belief that she had consented and was willing to participate in these acts?
A. Yes, she said she liked it and she was ready.
Q. She did say that?
A. Yeah.”

We will now address the issues involved in this appeal.

I

Appellant’s first contention is that he was entitled, for impeachment purposes and to obtain a fair trial, to inspect certain documents and statements made as a result of an investigation by the State of Alabama some four or five years prior to the trial.

It appears from the record that none of the statements were in the possession of the district attorney or his deputy district attorney. The trial court did not immediately deny the motion to produce, but made serious efforts to get these statements from the files of the Department of Public Safety in Montgomery, Alabama, where the state investigator had sent them for safekeeping.

The hearing, in camera, fails to produce facts to reveal what the missing statements contained. There is no showing that “any statement made by a witness (the prosecu-trix or other witnesses) to officers before trial differed in any respect from statements made to the jury during trial.” Also, there is no showing that “the statement requested, if any, was of such nature that without it the defendant’s trial would be fundamentally unfair.” Fortenberry v. State, 55 Ala.App. 1, 312 So.2d 573; Cooks v. State, 50 Ala.App. 49, 276 So.2d 634.

It is to be noted that the in camera hearing on the motion took place after the jury had been impaneled and the case was ready for trial. The court instructed the state investigator, who took the statements, to contact proper officials in Montgomery and get the statements sent to the court. The trial then continued on the merits. The statements did not reach the courthouse. The court denied defendant’s motion to continue the case made during the progress of the trial when the statements did not arrive.

It occurs to us that the contents of the statements were highly speculative and for aught appearing, would not have contradicted what the witnesses testified. We will not put the court in error for refusing to continue the case.

II

Appellant-defendant contends that the trial court erred in declining to dismiss the prosecution because he was denied a speedy trial to which he had a constitutional right.

It appears in the record that the first indictment for the offense was on October 12, 1973, to which demurrer was sustained on April 8,1974. Defendant was reindicted on January 27, 1975.

The record shows that on October 30, 1973, the case was continued until October 31, 1973. On November 19, 1973, the case was again continued and alias capias ordered; bond was raised to $6,000.00. On April 8, 1974, demurrer was sustained to indictment and defendant held for new indictment as we have already noted. Defendant’s bond was reduced to $5,000.00. See Title 15, § 258, Recompiled Code 1958, which authorizes this procedure. We again note that the second indictment was returned on January 27, 1975.

After the demurrer was sustained there was not another grand jury in Cleburne County until August 6, 1974. We find that only one grand jury convened in Cleburne County between the adjudication on the demurrer and the date of the second indictment.

The record is not clear as to why an indictment was not returned in August, 1974; but, only five months elapsed before the indictment was returned. It is not shown that the State was at fault in not presenting the case to the grand jury until January, 1975, nor does it appear that this delay caused defendant any injury.

A supplemental record (bench notes of the trial court) shows that on February 11, 1975, (after the second indictment) the court ordered a conditional bond forfeiture and alias capias. Evidently the defendant was not in jail. Again on March 17, 1975, the case was continued. It appears that on October 6, 1975, alias capias again was ordered. Again on June 20, 1977, the case was continued, but we find that on August 23, 1977, defendant was “in open court, age 37.” The court on that date appointed Honorable James L. Klinefelter to represent him. We infer from the entries that defendant was not arrested on the alias capias until on or about August 23,1977. It is reasonable to infer from the record that he was released on the second bond of $5,000.00 when he was held to await another indictment.

It appears to us that defendant was at fault in not ascertaining from the circuit clerk the status of his case instead of depending on random inquiries as to such status. He was at fault and not the court or the State.

We want to note here that the circuit court takes judicial notice of its own records. This Court does not take judicial knowledge of the circuit court records. Statham v. Statham, 282 Ala. 322, 211 So.2d 456; Roan v. Smith, 272 Ala. 538, 133 So.2d 224. We take notice of the circuit court records when they are certified to this Court. Davis v. Davis, 261 Ala. 95, 72 So.2d 852. Courts judicially know their own records. Lovejoy v. State, 32 Ala.App. 110, 22 So.2d 532, cert. den. 247 Ala. 48, 22 So.2d 537.

The trial court heard the State’s motion for a supplemental record. The court stated “I read those orders over myself in determining whether or not to dismiss the case for want of a speedy trial.”

We conclude that the delay in the trial was caused by the defendant not being available for trial after the second indictment. Certainly the sheriff would have arrested him under an alias capias that was ordered had he been in the county. Cole v. State, 52 Ala.App. 447, 293 So.2d 871(4); Braden v. State, 47 Ala.App. 466, 256 So.2d 425. We quote from Braden as follows:

“The right to a speedy trial is a relative right which depends upon the circumstances of each case. It is designed to prohibit arbitrary and oppressive delays caused by the prosecution. It does not operate to deprive the state of a reasonable opportunity of prosecuting criminals. Discretionary continuances granted by the trial judge, or delay occasioned by want of time to try, or any like circumstance, do not contravene the right. Likewise, an appellant cannot claim the right has been denied where the delay is occasioned by actions initiated by himself. Tiner v. State, 279 Ala. 126, 182 So.2d 859; Sample v. State, 138 Ala. 259, 36 So. 367.”

We hold that the refusal of the court to dismiss the case because a speedy trial was not accorded defendant is free of error. Moulden v. State, 47 Ala.App. 573, 258 So.2d 915.

Ill

Appellant also contends that the court erred in not permitting appellant to show that he had prior sex relations with prose-cutrix.

The trial court in refusing to admit the evidence relied on Act No. 251, Regular Session, 1977, which became effective April 21, 1977. § 12-21-203, Code of Alabama 1975.

Appellant contends that this section has no retrospective effect and has no application to the instant offense, which is alleged to have been committed on July 10, 1973.

It is to be noted that when the alleged rape was committed on July 10, 1973, evidence of prior sexual relationship between alleged victim of rape and the alleged rapist was admissible on the issue of consent vel non. McQuirk v. State, 84 Ala. 435, 4 So. 775(1), 5 Amer.St.Rep. 381. Appellant asserts that if Act No. 251, supra, is here applied it' would make the law ex post facto in violation of appellant’s constitutional rights.

The Supreme Court of Alabama, in Hart v. State, 40 Ala. 32 (1867), held that every law which alters and receives less or different testimony than the law required at the time of the offense, in order to convict the offender, is an ex post facto law. See also, Goode v. State, 50 Fla. 45, 39 So. 461(1).

The Supreme Court of the United States, in Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (March, 1884), observed at p. 589, 4 S.Ct. at p. 210, as follows:

“ * * * Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage; for they do not attach criminality to any act previously done, and which was innocent when done, nor aggravate any crime theretofore committed; nor provide a greater punishment therefor than was prescribed at the time of its commission, nor do they alter the degree, or lessen the amount or measure, of the proof which was made necessary to conviction when the crime was committed.
“ * * * Any statutory alteration of the legal rules of evidence which would authorize conviction upon less proof, in amount or degree, than was required when the offence was committed, might, in respect of that offence, bé obnoxious to the constitutional inhibition upon ex post facto laws. But alterations which do not increase the punishment, nor change the ingredients of the offence or the ultimate facts necessary to establish guilt, but— leaving untouched the nature of the crime and the amount or degree of proof essential to conviction — only remove existing restrictions upon the competency of certain classes of persons as witnesses, relate to modes of procedure only, in which no one can be said to have a vested right, and which the state, upon grounds of public policy, may regulate at pleasure. Such regulations of the mode in which the facts constituting guilt may be placed before the jury can be made applicable to prosecutions or trials thereafter had, without reference to the date of the commission of the offence charged.”

Thus, we observe that since Hopt, supra, the Supreme Court of the United States has clarified the law. We do not think Act No. 251, supra, is ex post facto in its application to the instant ruling of the trial court.

We note that following an in camera hearing the trial court specifically made a finding that he did not believe the accused’s testimony that he and the prosecutrix had prior sexual relations.

We think the trial court had authority to pass upon the truth of defendant’s accusation of prior sexual contact with the prosecutrix, and if he did not believe the testimony to preclude its admission in evidence. It is akin to a confession wherein the court first determines its voluntariness, and if voluntary, admit it and let the jury decide what weight it will give the confession. If involuntary the court may preclude its admission.

We will not hold that the trial court in sustaining objection to the admission of the evidence to be error.

IV

Appellant asserts error in the court’s refusal to give written charge as follows:

“Defendant’s Charge No. 1
If the jury believe from the evidence that the conduct of the prosecutrix was such toward defendant at the time of the alleged rape as to create in the mind of the defendant the honest and reasonable belief that she had consented or was willing for defendant to have connection with her they must acquit the defendant. Refused.
W. C. Bibb
Circuit Judge”

It also appears on p. 19 of appellant’s brief.

The foregoing charge was approved in McQuirk, supra.

We do not think the court erred in refusing to give it in the instant case. We do not find any evidence of conduct on the part of the prosecutrix which implied consent. Defendant testified that he and she kissed each other in the living room. However, as appears, supra, we quote questions and defendant’s answers:

“Q. Did her behavior create in your mind the belief that she had consented and was willing to participate in these acts?
A. Yes, she said she liked it and she was ready.
Q. She did say that?
A. Yeah.”

We are convinced from defendant’s evidence that he relied on oral and not implied consent from her conduct. After this actual consent, they went into the bedroom and engaged in the sexual act.

The trial court charged the jury on the several elements of rape. With respect to the element of consent the court charged as follows:

“ * * * The third element, the woman must not willingly consent to the act of
sexual intercourse but it must be against her will. *. * *
* * * * * *
“ * * * Of course the woman must not consent, she must yield through fear, simply constructive force. * * * But unless that consent was actually voluni-tarly (sic), it’s not the kind of consent that the law would require.”

In view of the actual consent as shown by the testimony, supra, of the defendant and the oral charge of the court, we do not see that the judgment should be reversed because the written charge, supra, was refused.

V

A fifth contention of error is that the trial court erred in permitting a physician to testify as to details of what the prosecutor told him about the rape when he made an emergency examination of the victim at a hospital in Gadsden.

As we view the record the objection to this testimony was based on defendant’s assertion that the testimony was self-serving. Nothing was said about it being hearsay.

Defendant was bound by the specified ground. Prince v. State, 50 Ala.App. 644, 282 So.2d 83(4). Vol. 6A, Ala. Digest # 695(5). Trial court need not cast about for tenable grounds of objection to evidence. Marshall v. State, 219 Ala. 83, 121 So. 72. Specified grounds of objection to evidence waives all other grounds. Lackey v. State, 41 Ala.App. 46, 123 So.2d 186. Certiorari denied, 271 Ala. 699, 123 So.2d 191.

The judgment is affirmed.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

HARRIS, P. J., and TYSON and DeCAR-LO, JJ., concur.

BOOKOUT, J., dissents with opinion.

BOWEN, J., joins in above dissent.

BOOKOUT, Judge,

dissenting:

I disagree with the construction which the majority places on Act No. 251, Acts of Ala.1977, approved April 21,1977 (§ 12-21-203, 1977 Cumulative Supplement, Code of Ala.1975 ). The purpose of Act No. 251 was to protect the victims of sexual crimes from intimidation in having all their past sexual behavior brought to light which is irrelevant to the case being tried. It is to encourage victims to report sex crimes and to testify against sexual deviates without fear of having all the victim’s past sexual history exposed. The object of such act is commendable and is legally proper insofar as it limits the introduction of evidence irrelevant to the issue being tried. However, neither the legislature nor a trial judge may deprive a defendant in a criminal case of his constitutional right to give relevant testimony in his own behalf or to cross-examine witnesses against him on relevant matters. Article 1, § 6, Constitution of Alabama 1901.

Section 2(b) of Act No. 251 specifically provides that evidence relating to past sexual behavior of the complaining witness shall be introduced if the trial judge finds that the past sexual behavior directly involved the participation of the accused. For the trial judge to make such determination, the Act provides that an in camera hearing will be held. The Act further provides:

“At the conclusion of the hearing, if the court finds that any of the evidence introduced at the hearing is admissible under paragraph (b), the court shall by order state what evidence may be introduced by the defense at the trial of the case and in what manner the evidence may be introduced.”

The only criteria set out in paragraph (b), supra, for admissibility is that, “such past sexual behavior directly involved the participation of the accused.”

The purpose of the in camera hearing is to allow the trial judge to listen to the testimony, outside the presence of the jury, in order to screen out evidence of prior sexual conduct of the prosecutrix generally and admit only evidence of her past sexual behavior directly involving the accused. This does not bestow upon the trial judge the authority to pass judgment upon the credibility of such testimony. If the defendant testified that he and the prosecu-trix engaged in prior sexual conduct, such testimony is admissible pursuant to § 2(b) of Act No. 251 and should be submitted to the jury for whatever weight and credibility it desires to accord such evidence.

The appellant’s defense in the instant case was that of consent on the part of the prosecutrix. Therefore, the appellant’s testimony that he and the prosecutrix had engaged in prior sexual acts would certainly be relevant as bearing on the question of consent. Whether his testimony is believable or not is for the jury to decide. The trial, judge would have no more right to pass upon the weight and credibility of the appellant’s testimony in this instance than he would to pass upon the weight and credibility of a defendant’s alibi testimony or testimony of self-defense in other criminal cases.

I therefore respectfully dissent.

ON REHEARING

SIMMONS, Retired Circuit Judge.

Our attention is directed to a slight factual deviation in our statement that the motion to continue was made during “the progress of the trial.” We correct by stating that the motion was made in camera after the cause had been called for trial and the jury selected and impaneled.

Act No. 251, Acts of Alabama 1977, approved April 21, 1977 (§ 12-21-203, 1977 Cumulative Supplement, Code of Alabama 1975), has application to rape as well as to other sexual offenses. Subsection (c), supra, provides that evidence relating to past sexual misbehavior of the prosecutrix “shall be introduced if the court * * * finds that such past sexual behavior directly involved the participation of the accused.” Introduction before the jury is inhibited unless the Court finds (in camera) that the accused was directly involved.

To find that defendant previously copulated by consent with the prosecutrix was to accept the truth of defendant’s testimony. To fail to find participation by the prosecutrix was to disbelieve defendant’s testimony. Hence, the trial Judge’s statement that he did not believe the defendant.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

OPINION EXTENDED; APPLICATION OVERRULED.

HARRIS, P. J., and TYSON and DeCAR-LO, JJ., concur.

BOOKOUT and BOWEN, JJ., dissent.

      . Subsections of § 12-21-203, supra, are numbered differently than the sections in official Act No. 251, supra. This opinion refers to sections of the Act.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Raymond Herschel KILPATRICK, Appellant, v. STATE of Florida, Appellee.
    No. 76-237.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 1978.
    Rehearing Denied April 4, 1978.
    Richard L. Jorandby, Public Defender, Paul M. Herman, Asst. Public Defender, and Nikki Ann Clark, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Williams v. State, 285 So.2d 13 (Fla.1973).

DOWNEY, ANSTEAD and DAUKSCH, JJ., concur.


text:
    Frederick SPIEGEL, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1467.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1978.
    Rehearing Denied April 21, 1978.
    Joseph Mincberg, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Frederick Spiegel was found guilty by a jury on a charge of battery. He was sentenced to one year in prison. This appeal is from that judgment and sentence.

The record shows that the jury verdict is amply supported by evidence that Spiegel got into an altercation with one Ricardo Elorteque at a nightclub. As a result of the altercation, Spiegel struck Elorteque in the face with a wine glass causing severe lacerations and cuts to Elorteque’s face. Spiegel represented himself at the trial.

Five points claiming reversible error have been presented. Spiegel makes his main thrust in his first point, which claims error because the trial judge admitted testimony concerning his attempt to settle “the entire controversy by the payment of $25,-000.” He urges that he was simply attempting to settle the civil claim arising out of the same facts and that there is nothing in the record to tie the proposed settlement in with a dropping of the criminal action. Indeed, Spiegel did so testify. Nevertheless, there is evidence in the record which indicates, that the attempt to settle was conditioned upon a dismissal by the State of the criminal charges against Spiegel and that the victim would receive his money only in event that end was accomplished. We hold that the testimony was relevant and that the conflict of whether it was an attempt to “buy out” the criminal proceedings was properly left to the jury. See Walker v. State, 152 Fla. 455, 13 So.2d 4 (1943); and 22A C.J.S. Criminal Law § 736 (1961). Cf. the principles of law in Vaccaro v. State, 152 Fla. 123, 11 So.2d 186 (1942); and Cortes v. State, 135 Fla. 589, 185 So. 323 (1938).

Additionally, appellant contends that the court committed reversible error when it failed to supply the jury with a “not guilty” verdict form, citing as authority Braley v. Gladden, 403 F.2d 858 (9th Cir. 1968).

We find no merit in that contention in view of the verdict forms which were submitted to the jury and the instruction of the court as to the submitted form to be used by the jury if they found the defendant was not guilty of the offense of aggravated battery with which he was charged or of the lesser included offense of battery. See Cundiff v. United States, 501 F.2d 188 (8th Cir. 1974). Three verdict forms were submitted. One was guilty of aggravated battery-; one was guilty of battery; and one, which was the not guilty form, was worded “as to aggravated battery, not guilty.”

After describing the verdict forms to be submitted, the court instructed the jury as follows:

“Only one of these verdict forms is to be returned and that is the verdict that you determine by your unanimous decision as being the verdict which is appropriate in this case.
“If you return the verdict of guilty, it should be for the highest offense which has been proved beyond a reasonable doubt. If you find that no offense has been proved then, obviously, the form of your verdict would be not guilty.”

That clear direction of the court for the jury to find the defendant “not guilty” if they should find no offense was proved, leaves no room to. conclude, as was done in Braley v. Gladden, supra, where a guilty verdict form was submitted and there was no “not guilty” form submitted, that such amounted to a comment by the court implying the view of the court as to the guilt of the accused.

Here, the court clearly told the jury that their verdict should be “not guilty” if they found no offense proved, and there was a “not guilty” verdict submitted although it recited reference to the charge of aggravated battery. The fact that the jury found the defendant guilty of the lesser offense shows the jury was aware of and followed the instructions of the court.

Appellant’s remaining points have been considered and none of them presents reversible error, nor is any of such import to require a discussion thereof.

Accordingly, the judgment and sentence are affirmed.

      . Spiegel was at that time a member of The Florida Bar.


text:
    C. D., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 77-940.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1978.
    On Rehearing March 10, 1978.
    Bennett H. Brummer, Public Defender and Kurt Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

C.D., a juvenile, was charged by petition for delinquency with reckless driving under Section 316.029, Florida Statutes. He takes this appeal from an order finding that he committed the offense of reckless driving, withholding adjudication on that charge and placing him under the supervision of the Division of Youth Services. The sole issue is whether the charge of reckless driving was supported by substantial competent evidence.

Our review of the record indicates that the evidence presented was insufficient to support a finding that C.D. committed the offense of reckless driving. However, the record does, support a finding that he was guilty of careless driving under Section 316.030, Florida Statutes. Therefore, we affirm the order of the juvenile court insofar as it withholds adjudication and places C.D. under supervision, but we remand the cause to the juvenile court for modification of the order to reflect that C.D. was guilty of careless driving, not reckless driving.

Affirmed and remanded for modification.

ON PETITION FOR REHEARING

It appearing that under Rule 6.310 of the Florida Rules of Practice and Procedure for -Traffic Courts, careless driving is not a lesser included offense of reckless driving, therefore, upon consideration of the petition for rehearing filed by the appellant, our opinion is hereby modified by deleting the finding that C.D. was guilty of careless driving, and by reversing the order of the juvenile court finding C.D. guilty of reckless driving, withholding adjudication of delinquency and placing C.D. under supervision.

It is so ordered.

      . Section 316.030, Florida Statutes.

      . Section 316.029, Florida Statutes.


author: BOYER, Judge. BOYER, Judge.

text:
    STATE of Florida, Appellant, v. Paul C. BAXTER, III, Appellee.
    No. GG-497.
    District Court of Appeal of Florida, First District.
    Feb. 15, 1978.
    Rehearing Denied April 4, 1978.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellant.
    Stephen H. Donohoe, Jacksonville, for ap-pellee.
   BOYER, Judge.

The State appeals an order of the trial court suppressing evidence on the basis that the search warrant was improvidently issued.

The affidavit of the police officer, which was the only basis for the issuance of the search warrant, alleged that he had reason to believe and did believe that on certain premises used by appellee was concealed and possessed “a controlled substance described as: valium, percodan, dexamyl and dilaudid in violation of Section 893.13(l)(e), Florida Statutes.” Said affidavit further recited that:

“[Wjithin the past month your affiant has been working with a confidential informant who advised your affiant that he has been inside the above described dwelling within the past month and had personally observed a quantity of drugs controlled by Ch. 893 F.S., therein.
“Based on the above information, your affiant met with said informant within the past 20 days, searched said informant and found him to be free of any contraband or controlled drugs. Your affiant then followed said informant to the above described dwelling and observed him as he entered the dwelling. A short time later, said informant emerged from the above described dwelling and went to a pre-arranged location where he turned over to your affiant a quantity of a controlled drug, recognized as such by your affiant and verified by comparison with the Physician’s Desk Reference, which he stated he had obtained from within the-above described dwelling. • ’
“During all times pertinent hereto, you affiant had said confidential informant under observation except for the time said confidential informant was inside above described dwelling.
“After turning over the controlled drug he had obtained from within the dwelling the informant stated that there was still a quantity of the same drug along with valium, percodan, dexamyl and dilauid inside the dwelling.
“Your affiant has been a member of the Vice Division of the Jacksonville Sheriff’s Office for over four (4) years and is familiar with and able to recognize drugs controlled by Ch. 893 F.S.”

Appellee argues that if the factual basis, as alleged in the affidavit, is sufficient for the issuance of a search warrant of a residence in the State of Florida, then there is virtually no residence not subject to search. We agree.

It will be noted that the controlled substance, valium, percodan, dexamyl and dilauid, are medicines not infrequently prescribed by physicians and dispensed by pharmacists. For aught that appears in the affidavit the confidential informant slipped into the appellee’s residence, surreptitiously removed medication from a container bearing a prescription number and slipped back to the place where the officer, affiant, was waiting. There is no allegation that the controlled substances were illegally obtained, illegally retained nor that the quantity turned over to the officer by the informant was either sold or delivered by appellee or any occupant of said residence to said informant.

Lest this opinion be misunderstood and improperly cited as authority, we hasten to state that we do not here hold that recitation of unlawfulness, illegality, sale, delivery, nor that the occupant of the premises to be searched is not a physician or pharmacist, either or all, are essential to the adequacy of a factual statement recited in an affidavit for the issuance of a search warrant. Obviously the recitations in the affidavit will be different, depending on the facts of each case, and whether the controlled substance is an ordinary prescription drug or contraband such as marijuana or heroin. The facts alleged must, however, be sufficient to establish grounds for probable cause to believe that the laws are being violated. As already stated, it is apparent from a reading of the factual recitation in the subject affidavit that every fact there alleged could well be true and yet there be no probability of the violation of any law, except perhaps by the informant himself. The State, repeatedly in oral argument, urged that obviously the law had been violated because the informant was in possession of a controlled substance without a prescription which controlled substance was obtained from appellee’s residence. That position, however, begs the question. Obviously appellee may not be charged with the unlawful conduct of the State’s confidential informant.

AFFIRMED.

McCORD, C. J„ and MASON, ERNEST E., Associate Judge, concur.

ON PETITION FOR REHEARING

BOYER, Judge.

The State has filed a Petition for Rehearing, urging that we have overlooked State v. Gieseke, 328 So.2d 16 (Fla.1976). It is apparent that the State, in relying upon that decision, has misconceived our reasoning and holding sub judice. A careful reading of State v. Gieseke reveals that the primary thrust of that decision is “that superfluous hearsay information will not vitiate a determination of probable cause where that determination is sufficiently supported by direct testimony of an affiant who personally experienced events which by themselves generate probable cause.” (328 So.2d 18). Further, in that case the affidavit recited and the author of the opinion thrice referred to “a controlled buy”. There was no such allegation in the affidavit sub judice. Note our recitation in the opinion above:

“There is no allegation that the controlled substances were illegally obtained, illegally retained, nor that the quantity turned over to the officer by the informant was either sold or delivered by ap-pellee or any occupant of said residence to said informant.”

The Petition for Rehearing is denied.

McCORD, C. J., and MASON, ERNEST E., Associate Judge, concur.


author: DOWNEY, Judge. CROSS, Judge, DOWNEY, Judge.

text:
    Henry A. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 76-1723.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1978.
    Rehearing Denied March 21, 1978.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Henry Prettyman, Asst. Public Defenders, and William H. Larkins, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Anthony J. Golden and Charles A. Stampe-los, Asst. Attys. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant was charged with attempted burglary of a motor vehicle contrary to Section 810.02(3), Florida Statutes (1975), and possession of burglary tools contrary to Section 810.06, Florida Statutes (1975). After a trial by jury appellant was convicted of attempted trespass and possession of burglary tools. Ostensibly appellate review is now sought of the judgment and sentence based upon two alleged errors of the trial court: 1) the trial court erred in allowing the State to adduce evidence that appellant chose to remain silent after being advised of his constitutional rights; and 2) the trial court erred in failing to grant a judgment of acquittal when the State failed to prove ownership of the vehicle in question as that ownership was alleged in the information.

If the conviction on Count I (attempted burglary of a motor vehicle) had been properly preserved for appeal, we would reverse the conviction on that count because the State failed to prove ownership of the motor vehicle as laid in the information, Salerno v. State, 347 So.2d 659 (Fla. 4th DCA 1977); Mitchell v. State, 317 So.2d 465 (Fla. 4th DCA 1975); Smith v. State, 96 Fla. 30, 117 So. 377 (1928). However, although both parties have treated this matter as involving an appeal from the conviction on both counts of the information, the record demonstrates that the appeal from the written judgment of conviction and sentence gives us jurisdiction only over Count II (possession of burglary tools).

The record reflects that the jury found appellant guilty of attempted trespass and possession of burglary tools. It is further evident that at sentencing in open court the trial judge sentenced appellant to five years in prison for possession of burglary tools and sixty days for the attempted trespass to run concurrent with the prison term. However, in reducing the judgment to writing the Court only adjudicated appellant guilty of Count II (possession of burglary tools) and sentenced appellant to five years in prison. No adjudication or sentence on Count I was provided for in the written judgment. Since the written judgment only adjudicated and sentenced appellant for the crime of possession of burglary tools, we have jurisdiction only to consider an appeal involving that count of the information.

During the course of the testimony of Officer Commello, the State inquired about Miranda warnings and any' statements made thereafter by appellant. Com-mello testified that appellant told him how he happened to be at the scene of the crime but then he stated that “He [appellant] refused to answer any further question in there.” Defense counsel objected and the Court sustained the objection and instructed the jury to disregard the question. This, incidentally, was the second comment upon appellant’s refusal to answer any further questions. This is a clear violation of appellant’s right to remain silent and we doubt the efficacy of the Court’s instruction. Bennett v. State, 316 So.2d 41 (Fla.1975); Martin v. State, 334 So.2d 841 (Fla. 4th DCA 1976); Bostic v. State, 332 So,2d 349 (Fla. 4th DCA 1976); Jones v. State, 200 So.2d 574 (Fla. 3rd DCA 1967).

Accordingly, the judgment appealed from is reversed and the cause is remanded for a new trial on Count II of the information.

REVERSED AND REMANDED.

ANSTEAD, J., concurs.

CROSS, J., dissents, with opinion.

CROSS, Judge,

dissenting:

I respectfully dissent.

Although the complained-of error did impinge on the accused’s right to remain silent, it is clear that such error no longer requires automatic reversal of an adjudication of guilt. See Clark v. State, 336 So.2d 468 (Fla. 2d DCA 1976); Wythers v. State, 348 So.2d 390 (Fla. 3d DCA 1977). See also Royal v. State, 347 So.2d 742 (Fla. 4th DCA 1977). After carefully reviewing the record, including the numerous inculpatory statements made by appellant after he was given the Miranda warnings, I am convinced .that the reference to the accused’s refusal to answer any further questions did not prejudice his right to receive a fair trial in any way. See Wythers v. State, supra.

Accordingly, I would affirm the judgment.

ON PETITION FOR REHEARING

DOWNEY, Judge.

On February 21, 1978, we issued an opinion in this case reversing Petitioner’s conviction of possession of burglary tools, pursuant to Count II of the information.

In said opinion we pointed out that appellant was also appealing from a conviction of attempted trespassing, pursuant to Count I of the Information and from our study of the record the conviction on that Count was subject to reversal. However, since the record contained no written judgment and sentence for the conviction on Count I we had noted that we had no jurisdiction to review the judgment and sentence on that Count.

By Petition for Rehearing appellant points out that, subsequent to the issuance of our opinion, on February 28, 1978, the trial judge entered a judgment and sentence on Count I, nunc pro tunc to July 23, 1976. Petitioner seeks review of that judgment and sentence now by way of Petition for Rehearing.

Although the suggestion that we review the February 28th, 1978, judgment and sentence on Count I is tempting because it would be expeditious to do so, we decline to because that judgment and sentence can not be reviewed by this court until a notice of appeal has been filed. Accordingly, in order to obtain a review of the February 28, 1978, judgment and sentence Petitioner should file a new notice of appeal within thirty (30) days from the date of that judgment and sentence.

Accordingly, the Petition for Rehearing is denied.

ALDERMAN, C. J., and CROSS, J., concur.


author: KEHOE, Judge.

text:
    HYTE DEVELOPMENT CORP., a Florida Corporation, Appellant, v. GENERAL ELECTRIC CREDIT CORPORATION, a New York Corporation, Appellee.
    No. 77-325.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1978.
    Rehearing Denied March 22, 1978.

      Stanley H. Spieler, Miami, for appellant.
    John L. Britton, Miami, for appellee.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, cross-defendant below, brings this appeal from an order entered by the trial court denying its motion to vacate sale and to vacate order correcting scrivener’s error nunc pro tunc. We have concluded that it was not error for the trial court to deny appellant’s motion to vacate the order correcting a scrivener’s error; however, we have further concluded that it was error for the trial court not to grant appellant’s motion to vacate the sale.

On December 5, 1976, a foreclosure sale of appellant’s property was conducted to satisfy a final judgment of foreclosure entered in favor of appellee mortgagee, cross-plaintiff below. Appellee was the purchaser at the sale which was held pursuant to notice. Subsequently, certificates of sale and title, were issued. All of these acts were under the apparent aegis of Section 45.031, Florida Statutes (1975), which relates to judicial sales procedures.

After the issuance of the certificate of title, appellee discovered that there was an error in the description of the property sold. The error appeared in the notice of sale, certificate of sale, and certificate of title. Appellee then brought this matter to the attention of the trial court which, ex parte, on December 29, 1976, entered an order correcting the scrivener’s error nunc pro tunc.

Thereafter, appellant filed a motion to vacate the order correcting the scrivener’s error and to vacate the final judgment of foreclosure, the public sale thereunder, and the certificates of sale and title. On January 13, 1977, the trial court entered an order denying appellant’s motions. This appeal followed.

Appellant’s primary point on appeal is that the notice of sale failed to comply with the statutory requirements of Section 45.-031, Florida Statutes (1975), thereby depriving it of due process of law.

Although we do not agree with appellant’s contention that the trial court abused its discretion in correcting the scrivener’s error, we have concluded that, because a proper legal description of the property to be sold is an essential requirement of Section 45.031, Florida Statutes (1975), the trial court did abuse its discretion in denying appellant’s motion to vacate the sale, etc. Having discovered and corrected the error, the trial court should cause the property to be resold pursuant to the applicable statutory provisions for such sales. Therefore, the order appealed is reversed, except to the extent that it permitted the scrivener’s error to be corrected, and remanded to the trial court for further proceedings not inconsistent with this opinion.

Affirmed in part, reversed in part, and remanded.


author: GRIMES, Judge.

text:
    James Charles McCLAIN, Appellant, v. STATE of Florida, Appellee.
    No. 76-2055.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 1978.
    As Modified March 9, 1978.
    Jack O. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

This appeal involves the procedure which was followed in imposing an extended sentence upon the appellant as an habitual felony offender under Section 775.084, Florida Statutes (1975).

The appellant was convicted of burglary. He was sentenced immediately following the rendition of the jury verdict. The judge first read into the record the details from appellant’s “rap sheet.” The judge then observed that the appellant had been given the prior written notice that he would be treated as an habitual felony offender which is required under the statute. The judge determined that the appellant had been convicted of a felony within the last five years which had not been set aside so that he fell within the statutory definition of an habitual felony offender and found that enhanced sentencing of the appellant was necessary for the protection of the public. Appellant’s counsel waived the necessity of a presentence investigation report. The judge asked if there was any reason why sentence should not be pronounced and received a negative response from appellant’s counsel. The judge then sentenced the appellant to an extended sentence prescribed by the statute. At this point-appellant’s counsel stated that he felt the sentence was illegal because it exceeded the maximum allowed by law. The court noted that he could appeal, and he has. However, since the sentence was within the statutory limits, his appeal has centered on other points.

The appellant first argues that the evidence upon which his enhanced sentence was based was not presented in open court with full rights of confrontation and cross-examination as specified by Section 775.-084(3)(c). But unlike Harris v. State, 352 So.2d 1264 (Fla. 2d DCA 1977), appellant made no objection to the consideration of the evidence presented through the reading of the “rap sheet.” No doubt, the recitation of convictions constituted hearsay, but even hearsay evidence is admissible in the absence of objection. Western Union Telegraph Co. v. Merritt, 55 Fla. 462, 46 So. 1024 (1908); see Annot., 79 A.L.R.2d 890 (1961). We see no purpose to be served in requiring the state to prove in the traditional way the convictions contained in a defendant’s “rap sheet” when no objection has been raised and the truth of the recitation has not been denied.

The appellant further argues that the judge erred in failing to make specific findings of the basis upon which the enhanced sentence was given. Under Section 775.084(3), if the defendant is found to be an habitual felony offender, the court must still conclude that it is necessary for the protection of the public before he can impose an extended term. With respect to findings, Section 775.084(3)(d) states:

(d) Each of the findings required as the basis for such sentence shall be found to exist by a preponderance of the evidence and shall be appealable to the extent normally applicable to similar findings.

In Chukes v. State, 334 So.2d 289 (Fla. 4th DCA 1976), our sister court held that in order to impose an enhanced sentence under Section 775.084, the judge should make the necessary findings of fact required by the statute which must be supported by the record.

Turning to the instant case, we note that the judge made conclusionary findings by tracking the statutory language. It would have been helpful if he had outlined specific reasons for concluding that the sentencing of the appellant to an extended term was necessary for the protection of the public. However, the record in this case amply supports the ultimate conclusion, because the evidence concerning appellant’s prior criminal record reflects that he has been engaged in a lifetime of crime. Since the findings required by the statute are fully supported in this record, the judge was at liberty to impose the extended sentence.

The judgment and sentence are affirmed, but the case is remanded for resen-tencing of appellant. The present sentence does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes (1975). Smith v. State, 310 So.2d 770 (Fla. 2d DCA 1975). Moreover, the phrase “at hard labor” in the sentence is improper because no existing state statute provides for imprisonment at hard labor as a sentence for any offense. Speller v. State, 305 So.2d 231 (Fla. 2d DCA 1974). Appellant need not be present at resentencing.

BOARDMAN, C. J., and OTT, J., concur.


text:
    Charles E. COFLIN, Petitioner, v. DEPARTMENT OF COMMERCE, State of Florida and Career Service Commission, State of Florida, Respondents.
    Nos. EE-307 and EE-314.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1978.
    James B. Loper of Hamilton, Douglas & Bennett, Tampa, for petitioner.
    Kenneth H. Hart, Jr. and Robert L. She-vin, Atty. Gen., David J. Baron, Asst. Atty. Gen., for respondents.
   PER CURIAM.

Upon consideration of the briefs and record, we grant the Petitioner’s Amended Petition for Review and reverse the Career Service Commission’s order of 10 December 1976 on authority of State of Florida, Department of Administration, et al. v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977). This case is remanded to the Career Service Commission with directions to reinstate Petitioner to his former position of Employment Office Supervisor III with back pay.

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


author: PEARSON, Judge.

text:
    Mary Lee VECCIARELLI, as Widow and Surviving Spouse of Richard Vecciarelli, Deceased, and as Administratrix of the Estate of Richard Vecciarelli, Deceased, Appellant, v. JOHNSON FORD, INC., Allstate Insurance Company, City of Hialeah, a Municipal Corporation, and Hartford Accident and Indemnity Company, Appellees.
    No. 76-1510.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1978.
    Rehearing Denied April 21, 1978.

      Bartel, Levine & Shuford, Miami, for appellant.
    Talburt, Kubicki & Bradley and Robert J. Dickman, Adams, George, Schulte & Ward, Miami, for appellees.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PEARSON, Judge.

Mary Lee Vecciarelli, administratrix of the estate of her husband, Richard Vecciar-elli, appeals a final judgment entered pursuant to a directed verdict for the defendants in her action against Johnson Ford, Inc., the City of Hialeah and their respective insurers, in an action for wrongful death.

The facts as presented by the plaintiff are that the deceased, Richard Vecciarelli, was employed as an automobile salesman for Johnson Ford. At closing time on a certain day, he asked for and received permission to take home a used Shelby-Ford automobile for personal use at a social occasion. It was the policy of Johnson Ford to allow its automobile salesmen to drive company-owned cars as demonstrators and for both personal and business purposes. The evidence shows that the automobile was test driven by an employee of Johnson Ford prior to its having been turned over to Vecciarelli for his use. Vecciarelli drove the car home from work and later that evening, with several companions, he drove the car, at one point at a high speed, finally driving through a “T” intersection, where he was killed.

There was evidence that should have been admitted, but to which objection was erroneously sustained, that would tend to prove that the car lent to Vecciarelli was mechanically defective in that either the brakes failed or the accelerator (throttle) stuck, or both. In considering this appeal from the directed verdict for these defendants, we have considered the record as though this evidence was admitted. Having considered the record in the light most favorable to the plaintiff, we hold that the directed verdict for Johnson Ford and its insurer was proper because there was no evidence to show a special duty upon Johnson Ford, as Vecciarelli’s employer, to guarantee the mechanical condition of the automobile in which Vecciarelli died. In the absence of any evidence that the check of the Shelby-Ford automobile was negligently conducted or that Johnson Ford knew or should have known of the defects claimed, there was no proof of actionable negligence. Cf. Blanford v. Nourse, 120 So.2d 830 (Fla. 3d DCA 1960); and Langville v. Glen Burnie Coach Lines, Inc., 233 Md. 181, 195 A.2d 717 (1963). In a case such as this, we cannot apply the narrow test we would necessarily apply in cases arising, for instance, under the Federal Employers’ Liability Act. Cf. such cases as Atlantic Coast Line Railroad Company v. Barrett, 101 So.2d 37 (Fla.1958); Bradley v. Seaboard Coast Line Railroad Company, 355 So.2d 177 (Fla. 3d DCA 1978), filed February 14, 1978; and McCloskey v. Louisville & Nashville Railroad Company, 122 So.2d 481 (Fla. 1st DCA 1960).

The directed verdict for the City of Hialeah and its insurer was also proper. The record is devoid of any duty upon the City to maintain the roadway or right of way in the area of the accident resulting in Richard Vecciarelli’s death. Plaintiff’s argument that a ditch beyond the right of way contributed to the accident is not substantiated by any evidence in this record or by any showing that the City of Hialeah had a duty to fence this ditch.

Accordingly, the judgments based upon the directed verdicts for these defendants are affirmed.

Affirmed.

      . We note a prior appearance in this court of an interlocutory appeal involving the same matter and parties. See Vecciarelli v. Johnson Ford, Inc., 277 So.2d 807 (Fla. 3d DCA 1973).

      . The evidence revealed that the ditch was four feet deep and seven feet wide.


text:
    Hector Cornillot LLANO, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1415.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1978.
    Rehearing Denied April 21, 1978.
    Nicholas J. Capuano, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Appellant was charged in an information with unlawfully throwing, placing or discharging a bomb with intent to do damage to the property of Air Canada, in violation of Florida Statute 790.161.

Appellant was tried in the Circuit Court of Dade County, Florida without a jury. The trial judge found him guilty of the offense charged and sentenced him to ten years in the state penitentiary.

By this appeal appellant seeks reversal of his conviction and sentence on the ground that the evidence was insufficient to support the trial judge’s finding that appellant was guilty of the unlawful throwing, placing or discharging a bomb, since the evidence adduced and that upon which the court based the conviction tended to show that appellant was not the perpetrator but was only involved in a conspiracy in aiding and abetting the crime.

We have carefully considered the point on appeal in the light of the controlling principles of law, transcript of the testimony and evidence offered during trial, briefs and arguments of counsel, and have concluded that reversible error has not been made to appear. State v. Dent, 322 So.2d 543 (Fla.1975); Damon v. State, 289 So.2d 720 (Fla.1973); Hernandez v. State, 323 So.2d 318 (Fla. 3d DCA 1975); Heineman v. State, 327 So.2d 898 (Fla. 3d DCA 1976); and Hampton v. State, 336 So.2d 378 (Fla. 1st DCA 1976).

Affirmed.


text:
    Jack Patrick O’NEAL, personal representative of the Estate of M. G. O’NEAL, Appellant, v. Doris W. MIDGETTE, personal representative of the Estate of H. J. Midgette and H. J. Midgette, Deceased, Appellees.
    No. 77-648.
    District Court of Appeal of Florida, Second District.
    March 1, 1978.
    Rehearing Denied April 19, 1978.

      Burton E. Burdick of Burdick & Donahoe, Fort Lauderdale, for appellant.
    Milton R. Adkins of Pallot, Stern, Proby & Adkins, Miami, for appellees.
   GRIMES, Judge.

This is an appeal from an order dismissing a suit against a decedent and his estate for failure to prosecute under Fla.R.Civ.P. I.420(e) and for failure to move to substitute for a party defendant under Fla.R. Civ.P. 1.260(a)(1) following the suggestion of his death.

M. G. O’Neal filed a complaint against H. J. Midgette and others for declaratory judgment and injunctive relief to prevent the defendants from interfering with O’Neal’s alleged rights under a mining agreement with Mark Bateman (suit 1). Later, Bate-man and his wife filed a suit for declaratory judgment and injunctive relief against multiple defendants, including Midgette, for interference with Bateman’s alleged rights under the same agreement (suit 2). Both actions were filed in the same court, and the cases were ordered consolidated for trial.

In suit 2, on June 23,1975, Bateman filed a suggestion of Midgette’s death together with a motion to substitute Doris W. Mid-gette as a party defendant in her capacity as executrix of his estate. In suit 1, on October 13,1976, a motion was filed stating that M. G. O’Neal had died and requesting the court to enter an order substituting Jack Patrick O’Neal as party plaintiff in his capacity as executor of O’Neal’s estate. An order was entered in suit 1 on November 22, 1976, substituting Jack Patrick O’Neal, as executor of the Estate of M. G. O’Neal, deceased, as party plaintiff for M. G. O’Neal.

On February 7, 1977, Doris W. Midgette, as personal representative of the Estate of H. J. Midgette, deceased, moved to dismiss suit 1 as against the defendant H. J. Mid-gette for lack of prosecution and for failure to move to substitute for party defendant within ninety days of the suggestion of H. J. Midgette’s death. The granting of this motion in suit 1 forms the basis of this appeal. The record does not reflect upon which ground the order was entered, but we have concluded that dismissal under either ground was erroneous.

Fla.R.Civ.P. 1.420(e) provides that only actions in which it appears on the face of the record that no activity has occurred for a period of one year are subject to dismissal for failure to prosecute. Here, the motion to dismiss was filed within four months of the motion to substitute party plaintiff and the order granting the substitution. Midgette’s contention that the motion to substitute plaintiff was not the type of record activity designed to lead to an ultimate conclusion of the lawsuit is without merit, because an order was entered thereon, and the rule specifically contemplates orders of court as being record activity. Furthermore, moving to substitute a personal representative for the deceased plaintiff is a necessary step which must be taken in the prosecution of a suit.

The dismissal for failure to file a motion for substitution within ninety days after the suggestion of death would be well taken if the suggestion of death had been filed in suit 1. However, no suggestion of Mr. Midgette’s death was ever filed in suit I. The style and case number of the suggestion of death which was filed reflects that it was filed in suit 2, and it was filed by the plaintiff, Bateman, who was not even a party in suit 1. The fact that the cases had been consolidated and that O’Neal’s attorney received a copy of the suggestion of death did not make the suggestion of death a part of suit 1 so as to activate the ninety day requirement of the rule.

The order of dismissal with respect to Midgette and his personal representative is reversed.

BOARDMAN, C. J., and DANAHY, J., concur.

      . Record activity of less consequence than this has been held sufficient to prevent dismissal under Fla.R.Civ.P. 1.420(e). See Eastern Elevator, Inc. v. Page, 263 So.2d 218 (Fla.1972); Flack v. Kuhn, 277 So.2d 593 (Fla. 4th DCA 1973); Licausi v. Airport Transportation Service, Inc., 252 So.2d 835 (Fla. 4th DCA 1971).

      . See American Employers Insurance Co. v. J. H. Atkins & Associates, Inc., 332 So.2d 348 (Fla. 4th DCA 1976), in which an answer and counterclaim filed in one suit was held not properly filed in a second suit which had been consolidated with it even where the filing party was only a defendant in the second suit.


author: BOYD, JOSEPH A., Jr., Associate Judge.

text:
    Frances MELTZER, Appellant, v. Curtis MELTZER, Appellee.
    No. 76-1737.
    District Court of Appeal of Florida, Third District.
    March 7, 1978.
    Rehearing Denied April 17, 1978.

      Sinclair, Louis, Siegel & Heath, Miami, for appellant.
    Fine & Brownstein, Miami, for appellee.
    Before KEHOE, J., and BOYD, JOSEPH A., Jr., Associate Judge, and CHARLES CARROLL (Ret.), Associate Judge.
   BOYD, JOSEPH A., Jr., Associate Judge.

The parties to this appeal were divorced in 1968. Disputed questions of alimony and child support have been previously resolved on appeal. See Meltzer v. Meltzer, 262 So.2d 470 (Fla. 3d DCA 1972), Meltzer v. Meltzer, 221 So.2d 751 (Fla. 3d DCA 1969).

In 1974 the appellant Frances Meltzer again petitioned the circuit court to modify the alimony and child support payments made by her former husband. She had been receiving $500 per month in permanent alimony and $750 per month total child support for the couple’s two minor children. The trial judge referred the petition to a General Master for a hearing and a report.

The General Master issued a report recommending no increase in alimony and that the child support payments be increased to $850 per month. The appellant filed exceptions to the report. A hearing was held on the exceptions, after which the trial judge adopted the findings and recommendations of the General Master in toto and denied any increase in alimony or any further increase in child support. The increase in child support was to take effect as of the date of the report.

The appellant contends on appeal that the trial judge abused his discretion by denying any increase in alimony payments and in accepting an increase in child support of only $100 per month when her former husband’s gross earnings increased substantially since the last modification, the cost of living has escalated in the interim, and the children’s needs have multiplied. She also assigns as error the trial judge’s refusal to make the child support payments retroactive to the date the petition for modification was filed.

It affirmatively appears from the record that the former husband, a physician and Chief of Radiology at a local hospital, has benefited by greatly increased earnings since the last modification was granted in 1971. From the onset of these proceedings, the doctor has not contested his ability to pay an increase in alimony or child support. He has in fact expressly conceded in his brief that he has that ability.

We will not explicate at length the legal principles involved, for they are clear and the issues here are identical to those previously determined in our earlier opinion. See Meltzer v. Meltzer, 262 So.2d 470 (Fla. 3d DCA 1972).

The necessary prerequisite for the modification of alimony or child support payments is a showing of substantial change of circumstances, including financial circumstances, of one or both of the parties. Brown v. Brown, 315 So.2d 15 (Fla. 3d DCA 1975), Section 61.14 Florida Statutes (1975). We are persuaded that the appellant met this burden on the issue of child support.

Where the appellant establishes a prima facie case for an increase in child support, it is an abuse of discretion for the lower court not to make some award. Banks v. Graham, 252 So.2d 864 (Fla. 3d DCA 1971). Likewise, where there is an increase in support payments, but that increase is not consonant with the established needs of the children, the trial judge abuses his discretion by not providing for an adequate amount. Luedke v. Behringer, 143 So.2d 218 (Fla. 2d DCA 1962). Cf. Fletcher v. Fletcher, 235 So.2d 520 (Fla. 1st DCA 1970), Hubble v. Hubble, 214 So.2d 896 (Fla. 1st DCA 1968). Even where the only change in circumstance is nothing more than a substantial increase in the earnings of the former spouse, child support may nonetheless be increased. Sherman v. Sherman, 279 So.2d 887 (Fla. 3d DCA 1973).

We have carefully examined the record, considered the needs of the children and the father’s ability to pay. We con-elude that the child support payments authorized by the trial judge were simply not in proportion to the father’s ample earnings and the abundant needs of school age children. Jelke v. Jelke, 233 So.2d 408 (Fla. 3d DCA 1970). The appellant argues persuasively that the children’s needs are significantly greater today than they were in 1971. We are convinced that there is a need to improve the quality of the children’s home, schooling, food, clothing, transportation and recreation. The present level of child support is insufficient to meet the needs of growing children in light of the father’s current capability to more adequately support his children. It is our view that he should be required to do so. We find that the trial judge’s failure to raise the child support payments to a more adequate level was sufficient to constitute an abuse of discretion.

It is not the role of the appellate court to specify the exact amount necessary to provide adequate child support under these circumstances. The trial judge is in a better position to do this. It is our opinion however that a substantial increase in child support payments is warranted in this case.

As for the appellant’s request for an increase in alimony, we find no merit in her contention that the trial judge abused his discretion in not granting an increase. Pross v. Pross, 72 So.2d 671 (Fla.1954), Rogoff v. Rogoff, 115 So.2d 456 (Fla. 3d DCA 1959).

We do agree with the appellant that the increase in the child support payments should have been made retroactive as of the date the petition for modification was filed rather than the date of the Master’s report. Friedman v. Friedman, 307 So.2d 926 (Fla. 3d DCA 1975), Meltzer v. Meltzer, supra, 262 So.2d at 472.

This cause is remanded to the lower court to fix a more adequate amount of support for the children, as it may determine.

Affirmed in part, reversed in part and remanded with directions.

      . Because of Dr. Meltzer’s stipulation that he is financially able to meet any reasonable award of alimony and child support, the General Master did not make an express finding of the specific amount of the doctor’s annual earnings. Examination of his 1974 Income Tax Return, however, shows an adjusted gross income of $165,043. At the time the last petition for modification was granted in 1971, his gross income was approximately $63,000. Meltzer v. Meltzer, supra, 262 So.2d 470, 471. In short, the doctor now earns over $100,000 a year more than he did in 1971.

      . We have not overlooked the strictures on our reviewing function recently enunciated by our Supreme Court in Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976):
      “ . . . It is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the testimony and evidence from the record on appeal before it. The test ... is whether the judgment of the trial court is supported by competent evidence. Subject to the appellate court’s right to reject ‘inherently incredible and improbable testimony or evidence’ [footnote omitted], it is not the prerogative of an appellate court, upon a de novo consideration of the record, to substitute its judgment for that of the trial court.”
      We are complying with the principles set forth in Shaw by our decision herein. It is clear that all of the evidence presented to the General Master and adopted by the trial court compelled only one result: an increase in child support far greater than that actually awarded. The negligible increase awarded below was simply not supported by any competent evidence.


text:
    VAGABOND CONTAINER, INC., Appellant, v. CITY OF MIAMI BEACH, Appellee.
    No. 76-1983.
    District Court of Appeal of Florida, Third District.
    March 7, 1978.
    Rehearing Denied April 21, 1978.
    Holland & Knight and John W. Frost, II, Bartow, for appellant.
    Joseph A. Wanick, City Atty., Riechen-thal & Weinstein, Miami, and Lee H. Schil-linger, Coral Gables, for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Appellant/plaintiff, Vagabond Container, Inc., appeals the damages portion of a final judgment entered in its favor against ap-pellee/defendant, the City of Miami Beach. The primary contention on appeal is that the trial judge erroneously instructed the jury as to the elements of damages, resulting in an inadequate award.

In 1973, appellant was engaged in the business of marketing a wheeled refuse container system. The system consisted of roll-out receptacles for garbage and trash, and “dump” units that mechanically lift the receptacles and dump the contents into a garbage truck.

In December of 1973, appellant and ap-pellee entered into a contract whereby appellant was to furnish appellee with 20,000 receptacles and 38 dump units. In reliance upon the executed contract, appellant then entered into various sub-contracts with several suppliers who were to manufacture the component parts of the contracted goods.

By July 17, 1974, appellant had delivered to appellee some 2,060 garbage containers and 12 dump units, which appellee had accepted and put into use. Notwithstanding this acceptance, the containers proved to be faulty in that the lids to said containers (which had been replaced and redesigned on three separate occasions) warped, allowing water to seep into the refuse and creating a health problem. On the above date, appel-lee, acting through its official representatives at a City Council meeting, cancelled the contract.

Suit was thereupon filed by appellant in which it alleged breach of contract and sought damages in excess of $400,000.00. Appellee counterclaimed for breach of warranty alleging that the containers were unfit for the purpose for which they were created and sought damages in excess of $120,000.00.

At the conclusion of a jury trial, appellant was awarded $100,000.00 damages on its claim for breach of contract, while ap-pellee was awarded $10.00 on its counterclaim for breach of warranty. A final judgment was thereupon entered by the trial judge which reflected the jury’s award. From that final judgment, appellant has taken this appeal, contending that the award of damages was grossly inadequate and contrary to the evidence. In support thereof, appellant has assigned as error a number of the instructions given to the jury by the trial judge on the issue of damages.

After carefully reviewing the record, briefs and arguments of counsel, it is our opinion that the trial judge erred in instructing the jury on the issue of damages recoverable by a seller upon breach of contract by the buyer. As such, and for the following reasons, we reverse the final judgment as it applies to appellant’s award and remand the cause for new trial on the damages issue.

Pursuant to Chapter 672, Florida Statutes (1975), a seller is entitled to his full measure of damages from a buyer who has breached his contract for the sale of goods. In determining the full measure of damages to be awarded, the jury should have been instructed in the following areas: lost profits, pursuant to Section 672.708(2), Florida Statutes (1975); incidental damages, pursuant to Section 672.708(2) and 710, Florida Statutes (1975); and recovery of the' contract price of any goods “accepted” by the buyer, pursuant to Section 672.709, Florida Statutes (1975). Sub judice, the trial judge failed to instruct the jury on damages recoverable by virtue of the lost profits of appellant. See Industrial Circuits Company v. Terminal Communications, Inc., 26 N.C. App. 536, 216 S.E.2d 919, 17 U.C.C.Rep. Serv. 996 (1975).

It is the duty of the court to instruct the jury as to the proper measure of damages in the case and as to the elements to be considered in arriving at the damages. Security Mutual Casualty Company v. Bleemer, 327 So.2d 885 (Fla.3d DCA 1976); Fournier v. Lott, 145 So.2d 885 (Fla.3d DCA 1962). The failure to charge the jury on damages attributed to lost profits was error, and in light of the applicable law and recovery received, we must presume that such error harmfully influenced the jury’s verdict. Henning v. Thompson, 45 So.2d 755 (Fla.1950).

Accordingly, the final judgment is reversed and remanded for new trial on the issue of appellant’s damages.

Other points raised by appellant need not be considered in light of our determination.

Reversed and remanded for new trial.


author: PER CURIAM. NATHAN, Judge, HUBBART, Judge

text:
    Donald PORTER, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2040.
    District Court of Appeal of Florida, Third District.
    March 7, 1978.
    Rehearing Denied April 21, 1978.
    Mark King Leban and Joe N. Unger, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

The controlling question presented on this appeal appears to be whether reversible error occurs where the State elicits testimony from the arresting officer that the defendant, while in custody and being advised of his Miranda rights, stated that he wished to have an attorney present and made no statement and where defendant’s trial counsel did not object at the time of the testimony. The question arises as follows:

The defendant, Donald Alexander Porter, appeals from a criminal conviction for aggravated battery in the Circuit Court of the Eleventh Judicial Circuit and contends that it was fundamental error for the trial court to fail to grant a mistrial after evidence was admitted that the defendant asked for a lawyer after being given his Miranda rights and made no statement. We agree and reverse.

The defendant was charged by information with aggravated battery before the Circuit Court for the Eleventh Judicial Circuit of Florida. Following a plea of not guilty, the case proceeded to a trial by jury.

At trial, it was undisputed that the defendant shot his son with a gun at the defendant’s house. The only witnesses to the shooting were the defendant and his son, and both gave diametrically opposite accounts of the shooting. As a result, the evidence in the record is in considerable dispute concerning whether the shooting was in self-defense or was legally unjustified.

On direct examination of the arresting officer, the prosecuting attorney elicited the following testimony:

“Q: Did you have an occasion to give the defendant any rights?
A: Yes, I did, but not at the scene of the residence. He was transported back to my station where he was advised of his Miranda rights, by card, in the presence of Sergeant Briggs.
Q: By this officer you advised him?
A: Yes, I did.
Q: Prior to this had the defendant made any statements?
A: Made a statement?
Q: After you gave him his rights, at the station, did he have an occasion to make any statement?
A: After reading the defendant his rights I asked if he would like to make a statement and he merely—
MR. DAVIS: Objection; no predicate.
THE COURT: Sustained at this time.
MS. SIMMS: All right.
BY MS. SIMMS:
Q: Just answer yes or no: Did he made a statement to you, one way or the other?
A: Yes, he did.
Q: Did the defendant understand, or indicate to you, that he understood, the rights as you read them?
A: Yes, he did.
Q: Did he indicate a desire to have an attorney with him at that time?
A: Yes, he did." [Emphasis added]

The jury found the defendant guilty as charged, and the trial court, after an adjudication of guilt, sentenced the defendant to three years in the state penitentiary followed by seven years probation. The defendant assigns as error the failure of the trial court to declare a mistrial based upon the admission of the defendant’s post-arrest assertion of his right to counsel and his failure to make a statement thereafter.

In Martin v. State, 356 So.2d 320 (Fla. 3d DCA 1977), case no. 76-1035, filed July 6, 1977 (appeal pending on a petition for rehearing), a similar question was presented. In that case, we held:

“The principle of law is now well established that any comment upon an accused’s exercise of his right to remain silent is reversible error without regard to the harmless error doctrine. Bennett v. State, 316 So.2d 41 (Fla.1975); Shannon v. State, 335 So.2d 5 (Fla.1976). Recently this legal principle has been extended to the point that a deprivation of due process results when a prosecutor is permitted to use the silence of an accused at the time of his arrest to impeach his explanation subsequently offered at trial. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Davis v. State, 342 So.2d 987 (Fla. 3d DCA 1977); Smith v. State, 342 So.2d 990 (Fla. 3d DCA 1977); Thomas v. State, 342 So.2d 991 (Fla. 3d DCA 1977).
“The prosecutor’s cross-examination of the defendant concerning the defendant’s pretrial silence was improper and, accordingly, defendant’s convictions and sentences are reversed and the cause remanded to the trial court for a new trial.”

See also Bostic v. State, 332 So.2d 349 (Fla. 4th DCA 1976).

The State argues that we should depart from the rationale of the Martin decision in view of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). We hold that this opinion has not changed the law in the State of Florida as enunciated by the Supreme Court of Florida. If a more liberal view of the situation, where a defendant’s constitutional rights are abridged but no objection is made, is to be taken in the State of Florida, we believe that such view must be taken by the Supreme Court of Florida. We, therefore, find reversible error under appellant’s first point.

In the interests of justice, we must proceed with appellant’s second point which, if valid, would preclude a retrial. Appellant contends that the trial court erred in denying his motion for discharge under the speedy trial rule. Our review of the record demonstrates that error is not presented on this record. See State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971); Rubiera v. Dade County ex rel. Benitez, 305 So.2d 161 (Fla.1974); State v. Nelson, 320 So.2d 835 (Fla. 2d DCA 1975).

Accordingly, defendant’s conviction and sentence are reversed and the cause is remanded to the trial court for a new trial.

Reversed and remanded.

NATHAN, Judge,

concurring.

The first question to be decided is whether the prosecutor’s question, “Did he indicate a desire to have an attorney with him at that time?” and the answer, “Yes,” referred to the defendant’s sixth amendment right to counsel, his fifth amendment right to remain silent, or both.

I am of the opinion that they referred to both in this case, for where the facts show that defendant made no statement thereafter, the question had no probative value. Its sole effect was as a comment on the right to remain silent.

This leads to the second question to be decided: Was this error such that no objection was necessary in order to preserve the right to appellate review; in other words, was it fundamental error? While fundamental error need not exist every time a comment is made on the right to remain silent, see e.g., Clark v. State, 336 So.2d 468 (2d DCA 1976), on the facts before us, the effect of the question and answer was of such magnitude as to be fundamental. Except for defendant and his son, no one else was present at the time of the shooting. The jurors had to weigh the conflicting testimony of these men, and the effect of the prosecutor’s question was to prejudice defendant’s interest so significantly as to call into question his right to a fair trial. Therefore, reversal is required. Royal v. State, 347 So.2d 742 (Fla. 4th DCA 1977).

HUBBART, Judge

(dissenting).

I respectfully dissent. In my judgment, the error complained of concerning the admissibility of the defendant’s post-arrest silence coupled with his express assertion of the right to counsel was not properly preserved for appellate review and the admission of such evidence was not fundamental error. Moreover, I agree with the court that the defendant’s speedy trial claim has no merit. Accordingly, I would affirm the conviction herein.

A

It has long been the established law of this state that the admissibility of evidence received without objection in the trial court cannot be reviewed on appeal absent an error of fundamental dimensions. The same rule applies when the evidence is objected to at trial on grounds which are abandoned on appeal. Ashford v. State, 274 So.2d 517 (Fla.1973); Jalbert v. State, 95 So.2d 589, 591 (Fla.1957); Walker v. State, 152 Fla. 455, 13 So.2d 4 (1943); Sims v. State, 59 Fla. 38, 52 So. 198 (1910); Ferrell v. State, 45 Fla. 26, 34 So. 220 (1903); Jones v. State, 35 Fla. 289, 17 So. 284 (1895); Koran v. State, 213 So.2d 735 (Fla. 3d DCA 1968); Shea v. State, 167 So.2d 767 (Fla. 3d DCA 1964).

A fundamental error goes to the foundation of the case or the merits of the cause of action and may be noticed by the appellate court although proper objection thereto was not made in the trial court. It is a doctrine which is guardedly and sparingly invoked and only in rare cases where (1) a jurisdictional error appears or (2) the interests of justice present a compelling demand for its application. Ashford v. State, 274 So.2d 517 (Fla.1973); Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970); Custer v. State, 159 Fla. 574, 34 So.2d 100 (1947); Clark v. State, 336 So.2d 468 (Fla. 2d DCA 1976); Haley v. State, 315 So.2d 525 (Fla. 2d DCA 1975); Gibson v. State, 194 So.2d 19 (Fla. 2d DCA 1967); Fla.App. Rules 3.7(i), 6.16.

Sound policy reasons exist for these principles of appellate review. Requiring timely and proper objections to the admissibility of evidence ensures that a trial court will have the opportunity to avoid or correct alleged trial errors when they occur which in turn advances the orderly administration of justice. With the evidentiary issue properly presented below, the trial court is more likely to reach a satisfactory result and thus obviate the need for appellate review thereon. And even where an appeal ensues, the need for unnecessary retrials is considerably reduced. Dilliplaine v. Lehigh Valley Trust Co., 475 Pa. 255, 322 A.2d 114 (1974).

Moreover, it is not wise to require a trial judge to assume the role of advocate by noticing and correcting alleged trial errors not complained of or properly brought to his attention. This runs contrary to the place of the trial judge in our system of justice and is on the whole unworkable to implement. Serious double jeopardy questions are involved if a trial judge would be required to declare a mistrial on an eviden-tiary question which a defendant in a criminal case did not request. Clark v. State, 336 So.2d 468, 472-73 (Fla. 2d DCA 1976).

Finally, requiring proper objections to evidence tends to remove the gamesmanship from trials by eliminating the incentive for counsel to avoid making objections to trial error in the hope of winning a jury verdict while being assured of a reversal on appeal in the event of an adverse verdict. Counsel is required to object or waive the error for appellate review. Unnecessary re-trials taxing already overburdened judicial resources are thereby discouraged and the cause of justice advanced. State v. Jones, 204 So.2d 515 (Fla.1967).

Nonetheless, we have been reluctant for good reason to create an absolute rule which would preclude appellate review in those rare cases where a jurisdictional error appears or a miscarriage of justice has occurred although the error involved has not been preserved in the trial court. This is especially true in capital cases. Thus, the doctrine of fundamental error has been developed to correct such glaring errors. It is, however, a very narrow doctrine and should not be converted into a general rule.

In the instant case, the error complained of is the admission of the defendant’s post-arrest silence coupled with his assertion of the right to counsel elicited at trial in the state’s case in chief, which testimony was not objected to by defense counsel. Under well-settled principles of Florida law, this court is precluded from considering whether the admission of such evidence constitutes reversible error unless the error was fundamental in nature.

B

There is no doubt that evidence of the defendant’s post-arrest silence is inadmissible in evidence upon proper objection because it constitutes a violation of the defendant’s constitutional privilege against self-incrimination guaranteed by the state and federal constitutions. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); United States v. Hale, 422 U.S. 71, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); Bennett v. State, 316 So.2d 41 (Fla.1975). And where properly preserved for appellate review, the admission of such evidence constitutes reversible error without regard to the harmless error doctrine. Shannon v. State, 335 So.2d 5 (Fla.1976); Bennett v. State, 316 So.2d 41 (Fla.1975). I further agree with the court and Judge Nathan in his concurring opinion herein that the same rules should govern the admissibility of a defendant’s post-arrest assertion of the right to counsel.

The central question in this case, however, is whether the admission at trial of the defendant’s post-arrest silence coupled with his assertion of the right to counsel elicited without objection at trial constitutes an error of such magnitude that the appellate court must notice the error on its own as a fundamental error although not properly preserved in the trial court for appellate review. In my view, the admission of such evidence does not rise to the level of a fundamental error.

A defendant’s confession or incriminating statement is ordinarily far more devastating to a defendant at trial than evidence of his post-arrest silence. Similarly, incriminating evidence seized from his person or house often has an equally damaging effect. As to post-arrest silence, a jury might suspect defendant is guilty. As to confessions and physical evidence, however, a jury is confronted with hard evidence of guilt. Indeed a confession is often the most damaging piece of evidence available in a prosecutor’s arsenal because through it a defendant has literally convicted himself out of his own mouth.

Yet the Florida courts have consistently held that a confession cannot be attacked as involuntary or otherwise inadmissible for the first time on appeal. A proper motion to suppress the confession or an objection thereto must be made at the trial level in order to preserve the question for appellate review. Wright v. State, 309 So.2d 215 (Fla. 3d DCA 1975); Hernandez v. State, 273 So.2d 130, 133 (Fla. 1st DCA 1973); Blatch v. State, 216 So.2d 261, 264 (Fla. 3d DCA 1968); Simpson v. State, 211 So.2d 862, 867 (Fla. 3d DCA 1968); Gregory v. State, 181 So.2d 547 (Fla. 1st DCA 1966); Morgan v. State, 177 So.2d 60 (Fla. 3d DCA 1965).

The same rule applies as to evidence attacked for the first time on appeal as having been obtained from a defendant through an unreasonable search and seizure in violation of the state and federal constitutions. A pre-trial motion to suppress such evidence and/or a proper objection to the evidence at trial is essential in order to preserve the question for appellate review. Fuller v. State, 159 Fla. 200, 31 So.2d 259 (1947); Fraterrigo v. State, 151 Fla. 634, 10 So.2d 361 (1942); Robertson v. State, 94 Fla. 770, 114 So. 534 (1927); O’Berry v. Wainwright, 300 So.2d 740 (Fla. 4th DCA 1974); Koedatich v. State, 263 So.2d 631 (Fla. 3d DCA 1972); Dickenson v. State, 261 So.2d 561 (Fla. 3d DCA 1972); Darrigo v. State, 243 So.2d 171 (Fla. 2d DCA 1971); Davis v. State, 226 So.2d 257 (Fla. 2d DCA 1969); Simpson v. State, 211 So.2d 862 (Fla. 3d DCA 1968); Tennant v. State, 205 So.2d 324 (Fla. 1st DCA 1967); Coggins v. State, 101 So.2d 400 (Fla. 3d DCA 1958).

If the admission of a confession attacked as being involuntary in violation of the defendant’s self-incrimination privilege has never been held to be fundamental error and requires a proper motion to suppress or objection at trial in order to obtain appellate review thereof, it follows that the admission of the defendant’s post-arrest silence, which is far less incriminating, cannot be a fundamental error either. And the same reasoning applies as to evidence obtained from a defendant through an unreasonable search and seizure.

C

The Florida Supreme Court has held in State v. Jones, 204 So.2d 515 (Fla.1967), that it is not fundamental error for a prosecuting attorney to comment on a defendant’s failure to testify at trial. A proper objection at trial is required in order to obtain appellate review of such comments. If properly preserved for appellate review, however, such a comment constitutes reversible error without regard to the harmless error doctrine. Shannon v. State, 335 So.2d 5 (Fla.1976).

The rationale stated in the Jones decision applies with equal force to the instant case. The Court reasoned that since all criminal defendants are required to have lawyers at trial as a result of the Gideon decision, it was no longer reasonable to dispense with the need for objection whenever a prosecutor commented on a defendant’s failure to testify. In my view, the same can be said with reference to the admission in evidence of the defendant’s post-arrest silence. A defendant should be required to make a proper objection to such evidence in order to obtain appellate review thereof.

In addition, arguments by a prosecuting attorney on the defendant’s trial silence are at least as prejudicial to a defendant as the admission in evidence of the defendant’s post-arrest silence. They are in fact both violations of the same constitutional privilege against self-incrimination. Indeed, the Florida Supreme Court has treated the two errors synonymously. Shannon v. State, 335 So.2d 5 (Fla.1976). If the former argument by the prosecuting attorney cannot be a fundamental error, it follows that evidence of the defendant’s post-arrest silence does not rise to that level either.

D

In addition to these authorities, sound principle dictates that the admission in evidence of the defendant’s post-arrest silence should not be treated as fundamental error. No jurisdictional error or miscarriage of justice appears herein which can be said to go to the foundations of the case. By no stretch of the imagination can it be said that the error is of such magnitude and is so glaring that the defendant’s trial was, in effect, a sham.

It is true that the alleged error complained of is of constitutional dimensions. But as Judge Grimes has cogently pointed out in Clark v. State, 336 So.2d 468 (Fla. 2d DCA 1976), not all constitutional errors are fundamental errors. See e.g. Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970). Cases involving a prosecuting attorney’s comment on the defendant’s failure to testify at trial, the admission of evidence attacked on appeal as having been obtained through an unreasonable search and seizure, and a confession attacked on appeal as being involuntary, are all examples of constitutional errors which are not fundamental errors.

E

The court as well as the defendant herein rely on a line of District Court of Appeal decisions which have held that it is fundamental error to admit evidence of the defendant’s post-arrest silence. In my view, the primary flaw in the reasoning of these decisions, which is compounded by the court’s opinion herein, is that they treat Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and Bennett v. State, 316 So.2d 41 (Fla.1975), as fundamental error cases. They are not. They are cases which have found reversible error in admitting evidence of the defendant’s post-arrest silence when the error was properly preserved for appellate review. In each of these cases, a proper objection was made at the trial level to the evidence complained of and no issue of fundamental error was ever raised on appeal. It is true that constitutional error was found in each of these cases, but constitutional error and fundamental error are not synonymous.

The state relies on another line of District Court of Appeal decisions which have held that it is not fundamental error to admit evidence of the defendant’s post-arrest silence. The latter line of eases appears to be based on the better reasoning and is in accord with the well-established precedent of this state. I would adhere to this line of cases and recede from the contrary line as a departure from well-settled principles of appellate review.

The court’s opinion in this case concludes that the error herein was fundamental in nature and therefore reversible. I cannot agree with this conclusion and would, therefore, affirm the defendant’s conviction herein.

      . Petition for writ of certiorari presently pending in the Florida Supreme Court.

      . Martin v. State, 356 So.2d 320 (Fla. 3d DCA 1977) (case no. 76-1035, opinion filed July 6, 1977) (petition for rehearing pending); Royal v. State, 347 So.2d 742 (Fla. 4th DCA 1977); Davis v. State, 342 So.2d 987 (Fla. 3d DCA 1977); Sylvester v. State, 341 So.2d 203 (Fla. 4th DCA 1977); Spann v. State, 340 So.2d 1215 (Fla. 4th DCA 1977); Woulard v. State, 340 So.2d 945 (Fla. 4th DCA 1976); Collins v. State, 340 So.2d 516 (Fla. 4th DCA 1976); Carter v. State, 335 So.2d 875 (Fla. 4th DCA 1976); Williams v. State, 335 So.2d 854 (Fla. 4th DCA 1976); Martin v. State, 334 So.2d 841 (Fla. 4th DCA 1976); Bostic v. State, 332 So.2d 349 (Fla. 4th DCA 1976); Jones v. State, 200 So.2d 574 (Fla. 3d DCA 1967).

      . Gillian v. State (Fla. 1st DCA 1977) (case no. FF-59, opinion filed August 18, 1977); Clark v. State, 336 So.2d 468 (Fla. 2d DCA 1976); Farmer v. State, 326 So.2d 32 (Fla. 4th DCA 1976).


text:
    Rudolph BROWD et al., Appellants, v. CENTRAL BANK OF NORTH DADE, Appellee.
    Nos. 77-282 and 77-489.
    District Court of Appeal of Florida, Third District.
    March 7, 1978.
    Rehearing Denied April 21, 1978.
    McCain & Browd, Miami, for appellants.
    Pallot, Poppell, Goodman & Slotnick and Neil A. Shanzer, Miami, for appellee.
    Before HAVERFIELD, C. J., and NATHAN and HUBBART, JJ.
   PER CURIAM.

The final summary judgment appealed from is reversed and the cause remanded for further proceedings. In our view, affidavits presented to the trial court on the motion for summary judgment create a genuine issue of material fact as to whether novation occurred in this case. Murphy v. Green, 102 Fla. 102, 135 So. 531 (1931); Holl v. Talcott, 191 So.2d 40 (Fla.1966); Amoedo v. Socarras, 311 So.2d 830 (Fla.3d DCA 1975).