author: ADKINS, Justice.

text:
    Charles Kenneth FOSTER, Appellant, v. STATE of Florida, Appellee.
    No. 48380.
    Supreme Court of Florida.
    Feb. 22, 1979.
    Rehearing Denied May 10, 1979.
    Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., Tallahassee, for appellee.
   ADKINS, Justice.

This is a direct appeal from a judgment adjudging defendant guilty of murder in the first degree and a sentence of death. He was also adjudged guilty of robbery and sentenced to life imprisonment.

Anita Rogers, 20 years of age, and Gail Evans, 18 years of age, met defendant and the victim, Julian Lanier, at a bar. They knew defendant, but the victim was a stranger.

The girls, after a discussion, agreed to go the the beach or somewhere else to drink and party with the men. The victim bought whiskey and cigarettes, after which the four of them left in the victim’s Winnebago camper. The victim was quite intoxicated and surrendered the driving chore to Gail. The defendant and the girls had planned for Gail to have sex with the victim and make some money. Gail parked the vehicle in a deserted area and, after some conversation concerning compensation, the victim and Gail began to disrobe.

Defendant suddenly began hitting the victim and accusing him of taking advantage of his sister. Defendant then held a knife to the victim’s throat and cut his neck, causing it to bleed profusely. They dragged the victim from the trailer into the bushes where they laid him face down and covered him with pine branches and leaves. They could hear the, victim breathing so defendant took a knife and cut the victim’s spine.

The girls and defendant then drove off in the Winnebago and found the victim’s wallet underneath a mattress. The defendant and the girls split the money found in the wallet and left the vehicle parked in the parking lot of a motel.

The next morning Anita Rogers went to the Sheriff’s Department and reported what had happened. She had been committed to a mental institution when she was 13 years of age and was not charged with any offense in this case.

Defendant was charged by an indictment with the offenses of first-degree murder and robbery.

The defendant testified and, during his description of the events of the evening, testified as follows:

I reckon I’ll just cop out. I have done it, killed him deader than hell. I ain’t going to set up here, I am under oath and I ain’t going to tell no fucking lies. I will ask the Court to excuse my language. I am the one that done it. They didn’t have a damn thing to do with it. It was premeditated and I intended to kill him. I would have killed him if he hadn’t had no money and I know I never told you about it, but I killed him.

The jury returned verdicts finding defendant guilty of robbery, premeditated murder in the first degree, and felony murder. After the sentence hearing, the jury returned an advisory verdict unanimously recommending that defendant receive the death penalty. The court then proceeded to sentence defendant to death on the murder charge and to life imprisonment on the robbery charge.

Defendant says error was committed when the trial court excused certain prospective jurors because of their conscientious objection to the death penalty, relying upon the following principle enunciated in Witherspoon v. Illinois, 391 U.S. 510, 521-23, 88 S.Ct. 1770, 1776-7, 20 L.Ed.2d 776 (1968):

Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.

The decisions of this Court have been in accord with the holding in the Witherspoon case, supra. See Campbell v. State, 227 So.2d 873 (Fla.1969); Paramore v. State, 229 So.2d 855 (Fla.1969).

A person who has beliefs which preclude him from finding a defendant guilty of an offense punishable by death is not qualified as a juror in a capital ease. Section 913.13, Florida Statutes (1975).

The voir dire examination discloses that Joe C. Smith could not and would not return a verdict of guilty if the penalty might result in death. A similar situation existed as to prospective juror John Douglas Hunt. The prospective juror Deloris Swearington was not as adamant as the others, but she was challenged peremptorily and not for cause. Only two jurors were challenged for cause over objections of defendant because of their beliefs against the death penalty. Similar objections were found to be without merit in Campbell v. State, supra; Williams v. State, 228 So.2d 377 (Fla.1969); Perkins v. State, 228 So.2d 382 (Fla.1969); Paramore v. State, supra; and Portee v. State, 253 So.2d 866 (Fla.1971). The lower court did not commit reversible error in allowing the removal for cause of these prospective jurors. We might add that the defendant, in his testimony, made the following statements:

Well, if the judge will accept my plea of guilty and guarantee I will be electrocuted for taking this man’s life, that’s what I want. I got this robbery charge, you know, we didn’t rob that man.
Anybody knows you can’t take nobody’s life and that’s why I want to die for it. I mean I ain’t crazy. I don’t know if I got demons in me or not, but I believe I do. I-went to church Sunday night to get them taken out. [Emphasis added.]

Defendant also complains that gruesome and inflammatory photographs were admitted into evidence, saying that they were unduly prejudicial. Defendant argues that there was no question as to the identity of the victim or the cause and manner of his death, so the photographs served no evidentiary purpose.

The photographs were indeed gruesome and offensive. However, they met the guidelines set by this Court in Bauldree v. State, 284 So.2d 196, 197 (Fla.1973):

In State v. Wright, 265 So.2d 361 (Fla.1972), we commented on and stated the proper test as follows:
“. . . Appellant interprets the Young case [Young v. State, 234 So.2d 341 (Fla.1970)] as holding that ‘necessity’ rather than ‘relevancy’ is the test for admissibility of gruesome photographs. ‘Necessity’ may be a consideration where, as in Young, large numbers of cumulative photographs of a gruesome nature taken away from the scene of the crime, are offered into evidence. But relevancy remains the basic test, as stated in Young: [5. Id. at 347]
‘The fact that the photographs are offensive to our senses and might tend to inflame the jury is insufficient by itself to constitute reversible error, but the admission of such photographs, particularly in large numbers must have same [sic] relevancy, either independently or as corroborative of other evidence.’ “Thus, the current position of this Court is that allegedly gruesome and inflammatory photographs are admissible into evidence if relevant to any issue required to be proven in a case. Relevancy is to be determined in the normal manner, that is, without regard to any special characterization of the proffered evidence. Under this conception, the issues of ‘whether cumulative,’ or ‘whether photographed away from the scene,’ are routine issues basic to a determination of relevancy, and not issues arising from any ‘exceptional nature’ of the proffered evidence.”

A defendant cannot, by stipulating as to the identity of a" victim and the cause of death, relieve the State of its burden of proof beyond a reasonable doubt.

One photograph was introduced during the penalty phase of the proceeding to show that the death blow was delivered with such tremendous impact that it went through the victim’s spinal column and severed the victim’s spinal cord. This was evidence of the atrocious manner in which the victim was murdered and the deliberate, coldblooded intent of the defendant.

Defendant contends that the death penalty statute is unconstitutional. He recognizes that the statute was upheld in State v. Dixon, 283 So.2d 1 (Fla.1973), and Alford v. State, 307 So.2d 433 (Fla.1975), but requests that we reexamine our prior decision. He argues that the statute does not meet constitutional muster because of the discretion of the state attorney in making the charge, as well as the discretion of the state attorney to plea bargain. He also refers to the discretion of the jury to convict a defendant of a homicide less than capital and thereby spare defendant’s life. He also-refers to the discretion involved in grants of executive clemency. All of these objections have been considered by this Court, as well as the Supreme Court of the United States. The Florida death penalty statute is constitutional. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

At the sentence hearing the defendant produced Dr. John F. Mason, a psychiatrist, who testified as to the mental and emotional condition of the defendant. The defendant also produced his former wife who testified concerning the mental and emotional instability of the defendant. The jury recommended that the death sentence be imposed. The trial judge found that the murder was committed while defendant was engaged in the commission of a robbery and that the capital felony was especially heinous and atrocious. He found that sufficient aggravating circumstances existed as enumerated in Section 921.141(5), Florida Statutes (1975), that justified a sentence of death. He found that there were no mitigating circumstances to outweigh the aggravating circumstances. . There was no presentence report filed in the ease or considered by the trial judge.

Defendant contends that the felony was committed while the defendant was under the influence of extreme mental or emotional disturbance and the trial court did not consider this mitigating factor. The following instruction was given to the jury before they deliberated upon the penalty:

If one or more aggravating circumstances are established you should consider all the evidence tending to establish one or more mitigating circumstance and give that evidence such weight as you feel it should receive in reaching your conclusions as to the sentence which should be imposed.

Before imposing the death sentence, the trial judge considered three psychiatric reports (with which defendant’s attorney was familiar) and found that there were no mitigating circumstances sufficient to overcome the heinous nature of the homicide. The defendant committed the homicide in an effort to fulfill his intentions and complete his desire, i. e., “ripping the victim off.” An elderly gentleman had agreed to go out and have some fun, but the price of such activity was his life. Defendant showed no compassion when he cut the victim’s throat, beat him, dragged him into the woods, and cut his spine with a knife. As described by one witness, there was no air coming from the body of the victim after she heard “the cracking” of the spine.

The aggravating circumstances were proved beyond a reasonable doubt. As stated in State v. Dixon, 283 So.2d at 9,

When one or more of the aggravating circumstances is found, death is presumed to be the proper sentence unless it or they are overridden by one or more of the mitigating circumstances provided in Fla. Stat. § 921.141(7), F.S.A. All evidence of mitigating circumstances may be considered by the judge or jury.

In Sullivan v. State, 303 So.2d 632 (Fla 1974), the sentence of death was appropriate where defendant and an accomplice conducted an assistant manager of a restaurant to a swampy area, fully intending to murder such victim, and where the 25-year-old defendant with no prior criminal record shot the victim with both barrels of a shotgun in the back of the head.

The death sentence was appropriate when a murder was committed while the defendant was engaged in the burglary of the deceased’s home. This murder was found to be especially heinous, atrocious, and cruel, and the jury recommended the death penalty. The defendant had been previously convicted of burglary (this differs from defendant Foster), but the atrocious nature of the crime coupled with the burglary were other aggravating circumstances sufficient to warrant the death penalty. Proffitt v. State, 315 So.2d 461 (Fla.1975), aff’d, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

Where defendant had a lengthy history of violence (just as defendant Foster), had demonstrated callous indifference to human life, and where his acts were for pecuniary gain, the death penalty was properly imposed. Henry v. State, 328 So.2d 430 (Fla.1976).

Although the findings of the trial judge in the case sub judice were not expansive, the justification of his sentence of death in writing was sufficient to show that the sentence of death resulted from reasoned judgment. This reasoned judgment comports with our consideration of other cases and the sentence of death was appropriate under the circumstances.

Other questions raised by defendant have been considered and are without merit.

The judgments and sentences of the trial court are affirmed.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG and HATCHETT, JJ., concur. •


source: Caselaw Access Project

author: BOYD, Justice.

license: Public Domain

text:
    John Monte BELL et al., Appellants, v. STATE of Florida, Appellee. Connie Ruth DiMILO et al., Appellants, v. STATE of Florida, Appellee. Deborah Lynn CROWSON, Appellant, v. STATE of Florida, Appellee. Lucille R. HAWLEY, Appellant, v. STATE of Florida, Appellee. Larry W. McCLELLAN, Appellant, v. STATE of Florida, Appellee.
    Nos. 50424, 50425, 50557, 50426, 50427, 50558, 50281 and 50282.
    Supreme Court of Florida.
    Feb. 22, 1979.
    Rehearing Denied May 9, 1979.

      Robert W. Pope of the Law Offices of Robert W. Pope, St. Petersburg, for appellants.
    Jim Smith, Atty. Gen., and Charles Core-es, Jr., Asst. Atty. Gen., Tampa, for appel-lee.
   BOYD, Justice.

In these consolidated appeals, we are presented with challenges to the appellants’ convictions in a number of prosecutions under section 796.07(2)(a), (2)(b), (3)(a), and (3)(c), Florida Statutes (1975). The judgments of conviction were rendered, following changes of plea to no contest, by the County Court of Pinellas County. The appellants challenged the various subsections as applied to their cases, and the trial court upheld the statute. We have jurisdiction under article V, section 3(b)(1), Florida Constitution.

Some of the appellants were charged with violations of both subsections (2)(a) and (2)(b). Subsection (2)(a) makes it unlawful to keep, set up, maintain, or operate any place, structure, building, or conveyance for the purpose of lewdness, assignation, or prostitution. Subsection (2)(b) makes it unlawful to offer, or to. offer or agree to secure, another for the purpose of prostitution or any other lewd or indecent act.

Other appellants were charged with violations of both subsections (3)(a) and (3)(c). Subsection (3)(a) makes it unlawful to offer to commit, or to commit, or to engage in, prostitution, lewdness, or assignation. Subsection (3)(c) makes it unlawful to reside in, enter, or remain in, any place, structure, or building, or to enter or remain in any conveyance, for the purpose of prostitution, lewdness, or assignation.

The appellants contend that the policemen upon whose evidence the infor-mations were based were guilty participants with the appellants in the illegal acts of lewdness at issue in a number of the prosecutions. Therefore, it is argued, the failure to prosecute the policemen as well as the appellants constitutes selective and discriminatory enforcement in violation of equal protection as guaranteed by the United States and Florida constitutions. Even if it were established, however, that the policemen engaged in illegal acts, this would not necessarily avail the appellants. In order to constitute a denial of equal protection, the selective enforcement must be deliberately based on an unjustifiable or arbitrary classification. Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446, 453 (1962). The mere failure to prosecute all offenders is no ground for a claim of denial of equal protection. Moss v. Hornig, 314 F.2d 89, 92 (2d Cir. 1963).

The appellants contend that they were entrapped by the police. In those prosecutions brought under subsections (3)(a) and (3)(c) the defense of entrapment was raised by pre-trial motions. Entrapment ordinarily is a jury question. E. g., Carter v. State, 155 So.2d 787, 789 (Fla. 1963). By changing their pleas to no contest, the appellants relieved the state of its burden of proving factual matters. Hand v. State, 334 So.2d 601 (Fla.1976); Chesebrough v. State, 255 So.2d 675 (Fla.1971). They also gave up any chance they might have had to present the entrapment defense to the jury. Thus it would seem that the appellants may show error in the court below only by establishing that there was entrapment as a matter of law. The contention that there was entrapment as a matter of law is consistent with a plea of no contest because the defense of entrapment presupposes the existence of all the elements of the crime. Sassnett v. State, 156 Fla. 490, 23 So.2d 618 (1945). The basis of the entrapment defense is that the conduct of the entrapped innocent defendant lies outside the intent of the criminal proscription. Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 821, 2 L.Ed.2d 848, 851 (1958). Not only have the appellants failed to establish entrapment as a matter of law, but also it seems to us doubtful, on the record presented, that enough was alleged so as to call for a jury instruction on entrapment had the case gone to trial. See Lashley v. State, 67 So.2d 648, 649-50 (Fla.1953). For the key issue in entrapment is whether the defendant was merely presented with an opportunity to commit a crime to which he was predisposed, or whether the criminal design originated with agents of the government, who then induced its commission by the accused. Id. at 649.

The appellants attacked the infor-mations for vagueness and duplicity. Each information, however, specified the subsection alleged to have been violated, alleged facts showing or acts constituting the violation, and alleged that the act or acts involved constituted or were committed for purposes of prostitution, assignation, or lewdness. It is permissible for an information to plead in the alternative where the statute denounces acts in the disjunctive. Fla.R.Crim.P. 3.140(k)(5).

The appellants who were charged with multiple offenses arising out of single criminal episodes contend that they were subjected to double punishment in violation of the constitutional guarantee against double jeopardy. But the double jeopardy guarantee protects against multiple punishment for a single criminal offense. The statute at issue here defines several different offenses and these appellants were properly charged with and convicted of separate offenses. See State v. Shaw, 219 So.2d 49 (Fla. 2d DCA 1969).

The judgments of conviction are affirmed.

It is so ordered.

ADKINS, OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

ENGLAND, C. J., dissents.


text:
    William H. CARPENTER, Defendant/Appellant, v. FLORIDA CENTRAL CREDIT UNION, a Florida Corporation, Plaintiff/Appellee.
    No. 53509.
    Supreme Court of Florida.
    Feb. 22, 1979.
    Rehearing Denied May 10, 1979.

      William E. Davis of Bond & Woitesek, Miami, for defendant/appellant.
    Barry J. Clyman of Frishman & Clyman, Coral Gables, for plaintiff/appellee.
   ADKINS, Justice.

This is an appeal from a final judgment entered by the Dade County Court which held Sections 95.022 and 95.11(2)(b), Florida Statutes (1975), unconstitutional as applied to promissory notes under seal. We have jurisdiction pursuant to Art. V, Section 3(b)(1), Fla.Const.

The parties will be referred to as they appeared in the trial court; Appellant as Defendant, and Appellee as Plaintiff.

On March 1, 1968, Defendant executed a promissory note under seal and payable in thirty installments to the Plaintiff, Florida Central Credit Union (Credit Union). The Defendant defaulted on the payment due June 26, 1969, and on each installment due thereafter. At the time of the execution, delivery, and default, the limitations period for instruments under seal was 20 years. Section 95.11(1), Florida Statutes (1969). Effective January 1, 1975, the legislature reduced the time for bringing suit to 5 years by deleting all references to sealed instruments. Section 95.11(2)(b), Florida Statutes (1975).

On April 28, 1977, the Credit Union filed suit on the note. The Defendant moved to dismiss the action as barred by Sections 95.11(2)(b) and 95.022, Florida Statutes (1975). The motion was denied and final judgment entered for the Credit Union. The trial court held Sections 95.11(2)(b) and 95.022, Florida Statutes (1975), unconstitutional insofar as they operated to violate the prohibitions against impairing contractual obligations. U.S.Const. art. I; Art. I, Section 10, Fla.Const. In holding the statute unconstitutional, both the trial court and the Plaintiff acknowledged the legislature’s general power to alter or amend statutes of limitation. The trial court, however, found the seal was a part of the bargain and an element of the contract and therefore created a substantive right. Similarly, the Plaintiff argues here that the presence of a seal on this instrument is comparable to‘ an express contractual provision concerning a specific limitations period.

We disagree. The common law significance accorded sealed instruments was long ago abrogated by statute in Florida. Ch. 4524, § 6, Laws of Florida (1897). See Cracowaner v. Carlton National Bank, 98 Fla. 792,124 So. 275 (Fla.1929). Indeed, by the time this action arose, the only distinction between a sealed instrument and one not under seal related to the applicable limitations period. Wester v. Rigdon, 110 So.2d 470 (Fla. 1st DCA 1959). With all other ramifications abolished, the only legal effect of a seal on this note is to invoke the statutory limitations period. The parties sub judice did not specifically contract for a time beyond the statute and we do not reach the question of their ability to do so. We hold that the presence of a seal on the promissory note did not create a substantive right in a 20-year limitations period, but merely designated the applicable statute of limitations, i. e. that affecting sealed instruments.

The applicable limitations period when this action arose in 1969 was 20 years. Section 95.11(1), Florida Statutes (1969). This changed in 1975 when the applicable period became 5 years. Ch. 74-382, § 7, Laws of Florida. Thus, Plaintiffs suit filed in 1977 would be valid under prior law but barred under the new statute. Defendant contends the new statute is retroactive and may constitutionally be applied to bar the instant suit. Plaintiff argues there is no clear legislative expression of retroactive intent and that the shortened period of limitation is unreasonable in light of the mode of amendment, i. e., deletion of all reference to sealed instruments and the longer period.

The legislature unquestionably has the power to shorten statutes of limitation, which are part of the remedial law of the state. Mahood v. Bessemer Properties, Inc., 154 Fla. 710, 18 So.2d 775 (Fla.1944). Such statutes may be retroactive so long as a reasonable time to file suit is provided those with existing causes of action. Foley v. Morris, 339 So.2d 215 (Fla.1976). The exercise of this authority must be accompanied by a clear, manifest indication of retro-activity. Walker & La Berge, Inc. v. Halligan, 344 So.2d 239 (Fla.1977). We have no difficulty finding such an expression in the instant legislation. Concurrently with the amendment reducing the limitations period for sealed instruments the legislature enacted a “savings clause,” Ch. 74-382, § 36, Laws of Florida. This allowed those with existing actions barred by the amendment a year from the effective date to file suit and preserve their rights. Section 95.022, Florida Statutes (1975). The very nature of a savings clause imparts retroactivity upon the statutes within its ambit. Nash v. Asher, 342 So.2d 1038,1039 (Fla. 4th DCA 1977) (“[Section 95.022] clearly demonstrates the legislative intent to make [Section 95.-ll(4)(a)] retroactive, since it is a saving clause . . .”) (emphasis supplied); see Brooks v. Cerrato, 355 So.2d 119, 120 (Fla. 4th DCA 1978) (“[T]he grace period allowed [in § 95.022] clearly pertains to causes of action which were shortened by the amended statute.”) The legislature’s very authority to enact statutes retroactively reducing limitations periods is conditioned upon such provisions. Foley v. Morris, supra. The trial court opined Section 95.022, Florida Statutes (1975), affected only general malpractice actions. This is contrary to the plain meaning of the language of the statute which refers to “any action barred by this act.”

Plaintiff urges this language is insufficient to refer to the amendment in Ch. 74-382, § 7, Laws of Florida, which Plaintiff argues was vague and ambiguous. We disagree. The prior law stated:

“Actions other than those for the recovery of real property can only be commenced as follows:
(1) WITHIN TWENTY YEARS. — An action upon a judgment or decree of a court of record in the state, and an action upon any contract, obligation, or liability founded upon an instrument of writing under seal.”

§ 95.11, Fla.Stat. (1973).

The disputed amendment deleted all references to seals in the 20-year period:

“Actions other than for recovery of real property shall be commenced as follows:
(1) WITHIN TWENTY YEARS. — An action on a judgment or decree of a court of record in this state.
(2) WITHIN FIVE YEARS. — (b) A legal or equitable action on a contract, obligation, or liability founded on a written instrument.”

Ch. 74-382, § 7, Laws of Fla.

There is no doubt the final blow had been struck, and the seal had lost all legal significance, certainly insofar as the statute of limitations was concerned. In light of the clear effect of this amendment, we hold the year provided in Section 95.022, Florida Statutes (1975), to be a reasonable time to allow retroactive application within constitutional parameters.

In fine, there was no contractual obligation created by the presence of a seal on the promissory note. It may be assumed the parties contracted with knowledge of the legislature’s authority to alter or amend the time to pursue legal remedies invoked by the seal. When the legislature exercised its power to reduce the limitations period a reasonable time was allowed for suit on existing actions. Sections 95.11(2)(b) and 95.022 Florida Statutes (1975), are retrospective in nature and constitutional as applied to promissory notes under seal.

The judgment of the trial court is reversed and the cause is remanded for further proceedings consistent with these views.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON, HATCHETT and ALDERMAN, JJ, concur. ■

SUNDBERG, J., concurs in result only.


text:
    EXCELSIOR INSURANCE COMPANY, Petitioner, v. POMONA PARK BAR & PACKAGE STORE, Respondent.
    No. 52195.
    Supreme Court of Florida.
    March 8, 1979.
    Rehearing Denied May 4, 1979.

      William L. Townsend, Jr. and William E. Butler of Walton & Townsend, Palatka, for respondent.
    Joseph C. Jacobs and Thomas M. Ervin, Jr. of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for American Ins. Association, amicus curiae.
   ADKINS, Justice.

This cause is before the Court on petition for writ of certiorari to review the decision of the First District Court of Appeal in Pomona Park Bar & Package Store v. Excelsior Insurance Co., 347 So.2d 136 (Fla.lst DCA 1977), which directly conflicts with United States Fidelity and Guaranty Co. v. Hazen, 346 So.2d 632 (Fla.2d DCA 1977). In those decisions the district courts of appeal construed identical language in separate insurance contracts but reached contrary conclusions as to its legal effect. We have jurisdiction under Article V, Section 3(b)(3) of the Florida Constitution. See Gibson v. Maloney, 231 So.2d 823 (Fla. 1970); Griffin v. Speidei, 179 So.2d 569 (Fla.1965). The respondent’s motion to discharge the writ as improvidently granted is denied.

Respondent Pomona Park Bar & Package Store and its insurer (Excelsior Insurance Company) were named as defendants along with two convenience stores and their insurers in a suit filed by a minor and his mother. The complaint alleged that in violation of Florida law, Pomona Park and the two other stores had sold alcoholic beverages to the minor and his two minor-age companions, proximately resulting in an automobile accident in which the minor-age plaintiff was seriously injured. Excelsior initially responded for itself and Pomona Park. But Excelsior later moved to withdraw as counsel for Pomona Park and for summary judgment on its own behalf, contending that its insurance contract with Pomona Park specifically excluded coverage for injuries resulting from sale of alcoholic beverages in violation of statute.

The trial judge seems to have understood exclusion (1) of paragraph (h) of the insurance policy (discussed below) as entirely excluding Pomona Park from coverage because it was engaged in the business of selling and serving alcoholic beverages. The motions to withdraw as counsel and for summary judgment were granted. Excelsior was thus relieved of liability and of its parallel contractual obligation to defend Pomona Park.

The First District Court of Appeal reversed. The court interpreted exclusion (h)(1) of the policy as excluding coverage for any bodily injury for which Pomona Park might be held liable while engaged in the business of selling alcoholic beverages. Since that was Pomona Park’s business,, the court regarded the exclusion as irreconcilable with the general provision of the contract for coverage to the insured. Confronted by a seeming inconsistency based on an assumption that the exclusion is all-encompassing, the court construed the contract in favor of the insured by deleting paragraph (h) and ordered Excelsior to provide coverage and a defense to Pomona Park.

In United States Fidelity and Guaranty Co. v. Hazen, supra, the Second District Court of Appeal apparently also construed exclusion (h)(1) in an identical policy as completely eliminating a nominally insured bar operator from coverage. The court therefore found in favor of the insurer against a claim by the insured for indemnification for alleged liability for an intoxicated patron’s injuries.

Thus we are confronted by essentially similar interpretations of paragraph (h) by a trial court and two appellate courts which nevertheless made conflicting decisions.

The insurance contract in question requires Excelsior to pay (within the dollar limits of the policy) all sums which the insured becomes legally obligated to pay for bodily injury or property damage. It also states that Excelsior has a right and a duty to defend Pomona Park. There are a series of exclusions, however. The paragraph containing the disputed exclusion reads as follows:

“(h) to bodily injury or property damage for which the insured or his indemnitee may be held liable
(1) as a person or organization engaged in the business of manufacturing, distributing, selling or serving alcoholic beverages, or
(2) if not so engaged, as an owner or lessor of premises used for such purposes, if such liability is imposed
(i) by, or because of the violation of, any statute, ordinance or regulation pertaining to the sale, gift, distribution or use of any alcoholic beverage, or
(ii) by reason of the selling, serving or giving of any alcoholic beverage to a minor or to a person under the influence of alcohol or which causes or contributes to the intoxication of any person; but part (ii) of this exclusion does not apply with respect to liability of the insured or his indemnitee as an owner or lessor described in (2) above;”

Excelsior contends the exclusions in paragraph (h) apply when: the insured is either engaged in the business of manufacturing, distributing, selling, or serving alcohol, or owns or leases the premises upon which such activity is conducted; and the insured violates a statute, ordinance, or regulation pertaining to liquor sales or distribution, or transfers liquor to a minor, an intoxicated person, or to one who is thereby rendered intoxicated; and such an act is the proximate cause of the plaintiff’s injuries or damages. Excelsior concludes that an owner or lessor is covered when he has not violated an alcoholic beverage statute, ordinance, or regulation, and a bar or package store operator is covered even when he has violated such a law but the injuries or damages were not proximately caused by the violation. The policy therefore covers, for example, injuries to a minor who tripped on loose flooring and fell through a plate glass window at the package store after having been illegally sold a bottle of liquor by the insured.

Respondent Pomona Park argues that exclusions (h)(1) and (h)(2) are disjoined and the qualifying clauses (i) and (ii) do not apply to those described in (h)(1), that is, to those “engaged in the business” of making, distributing, selling or serving alcoholic beverages. Under that interpretation, since Pomona Park is a package store it is entirely excluded from coverage. Even when an injury had no connection with liquor sales, Pomona Park believes it would still be denied coverage because it is in the business which is excluded. Pomona Park concludes that exclusion (h)(1) is repugnant and should be deleted because it converts the insurance policy into a device for channeling premiums to Excelsior without creating a corresponding duty to provide coverage.

Pomona Park also urges that if the Department of Insurance does not disapprove an insurance policy form which is defective under Section 627.411, Florida Statutes (1977), then Section 627.418, Florida Statutes (1977), requires the courts to extend coverage so as to protect policy holders against the defect. Pomona Park asserts that the contract is inconsistent and that we must therefore extend coverage.

Our understanding of paragraph (h) is that it sets out two categories of persons excluded from coverage: (h)(1), those actively “engaged in the business” and (h)(2), owners and lessors of the premises such business is conducted upon. But the two qualifying clauses limit the scope of the exclusion “if such liability is imposed”, (i) because of a violation of an alcoholic beverage law or (ii), by reason of the dispensing of an alcoholic beverage to a minor or an intoxicated person.

Pomona Park’s argument is misconceived in focusing exclusively on exclusion (h)(1) and representing that it completely eliminates bar operators from coverage. Rather, the provisions of paragraph (h) should be construed together. See generally King v. Sturge, 113 So.2d 257 (Fla.3d DCA 1959); New Amsterdam Casualty Company v. Addison, 169 So.2d 877 (Fla.2d DCA 1964); Government Employees Insurance Company v. Sweet, 186 So.2d 95 (4th DCA 1966). Every provision in a contract should be given meaning and effect and apparent inconsistencies reconciled if possible. Royal American Realty, Inc. v. Bank of Palm Beach and Trust Company, 215 So.2d 336 (Fla.4th DCA 1968); Transport Rental Systems, Inc. v. Hertz Corp., 129 So.2d 454 (Fla.3d DCA 1961). The construction advanced by Excelsior follows this guideline.

Other applicable rules of construction also bear against Pomona Park and support our interpretation of the policy. A reasonable interpretation of a contract is preferred to an unreasonable one. James v. Gulf Life Insurance Co., 66 So.2d 62 (Fla.1953); Travelers Indemnity Co. v. Milgen Development, Inc., 297 So.2d 845 (Fla.3d DCA 1974). And in the belief that the parties intended their agreement to be valid, a contract ought not be readily interpreted as ineffective. Corbin on Contracts, Section 546 (1960); Foster v. Jones, 349 So.2d 795 (Fla.2d DCA 1977). Under the view of paragraph (h) adopted by the District Court of Appeal and Pomona Park, the contract is void as written because the contested exclusion nullifies Excelsior’s general obligation to provide coverage to Pomona Park, which is engaged in the alcoholic beverages business. Such an interpretation is unreasonable when compared to the alternative and also affronts the rule which prefers that contracts be construed as valid.

Neither does it avail Pomona Park that ambiguities and inconsistencies in a contract are to be interpreted against the draftsman or, as started in the context of insurance law, construed in favor of the insured. There are important qualifications to the rule that prohibit its application here. Only when a genuine inconsistency, uncertainty, or ambiguity in meaning remains after resort to the ordinary rules of construction is the rule apposite. Boston Insurance Co. v. Smith, 149 So.2d 68 (Fla.1st DCA 1963); Beasley v. Wolf, 151 So.2d 679 (Fla.3d DCA 1963). It does not allow courts to rewrite contracts, add meaning that is not present, or otherwise reach results contrary to the intentions of the parties. See, e. g., Rigel v. National Casualty Company, 76 So.2d 285 (Fla.1954); United States Fire Insurance Co. v. Morejon, 338 So.2d 223 (Fla.3d DCA 1976). Moreover, even were we to find that the policy is ambiguous, that is susceptible of both Pomona Park’s and Excelsior’s interpretations, we would still have to prefer Excelsior’s interpretation because it maintains the widest range of coverage and is therefore actually the more favorable to the insured.

No deception or misrepresentation is involved here and we do not doubt that we give true effect to the intentions of the parties, which is the central concern of the law of contracts even in the realm of insurance where there are unique public policy considerations. We gather that Excelsior phrased the exclusions in the unwieldy terms of status not to confuse or mislead but to distinguish unmistakably between those who are engaged in the business of selling alcoholic beverages and those who are simply owners or lessors of the premises upon which such business is conducted. Generally, in American jurisdictions the respective legal duties and potential liabilities vary according to that distinction. See 45 Am.Jur.2d Intoxicating Liquors, Section 587 (1960). In Florida, even without a “dram shop act”, sale of alcohol to a minor is a violation of statute and is negligence per se. Section 562.11, Florida Statutes (1977); Davis v. Shiappacossee, 155 So.2d 365 (Fla.1963). The exclusions under review here deny coverage for liability based on acts that violated an alcoholic beverage law or otherwise transgressed certain civil special law duties of those “engaged'in the business.”

Pomona Park has also asserted that Excelsior’s policy form violates Section 627.411, Florida Statutes (1977) and that Section 627.418, Florida Statutes (1977) requires us to construe the policy so that it conforms to the standards of the former statute. That argument is without merit. Section 627.418 is designed to guarantee that the courts not bar coverage to policy holders because their contracts contain a condition or provision which violates the insurance code. Section 627.411 requires the Department of Insurance to disapprove inconsistent, ambiguous, misleading, illegible, or deceptive insurance forms and sets additional standards for disability insurance. We do not view the policy form in issue here as violative of Section 627.411. Neither does Section 627.418 invite freewheeling judicial revision of insurance contracts that might be considered defective under Section 627.411. Cf. Section 627.-419(1) Fla.Stat. (1977). (“Every insurance contract shall be construed according to the entirety of its terms and conditions . . ”).

Even if for the wrong reasons, the decision of the trial court in this case and the District Court of Appeal in United States Fidelity and Guaranty Co. v. Hazen, supra, were in conformity with our views while the decision of the District Court of Appeal in this case conflicts with our views. The facts alleged in the instant complaint come within the exclusion in paragraph (h) of Pomona Park’s insurance policy with Excelsior. Therefore, the District Court of Appeal’s decision is quashed and the cause remanded with instructions that the trial court’s summary judgment in favor of Excelsior be reinstated. Excelsior is also free of any obligation to defend Pomona Park against the allegations of the instant lawsuit.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON and HATCHETT, JJ., concur.


text:
    Jack DAVID, Petitioner, v. STATE of Florida, Respondent.
    No. 52394.
    Supreme Court of Florida.
    March 22, 1979.
    Rehearing Denied May 15, 1979.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Chief Asst. Public Defender, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., Marsha G. Mador-sky and Joy B. Shearer, Asst. Attys. Gen., West Palm Beach, for respondent.
   ADKINS, Justice.

By Petition for Certiorari, we have for review a decision of the Fourth District Court of Appeal. David v. State, 348 So.2d 420 (Fla. 4th DCA 1977), which allegedly conflicts with a prior decision of the District Court of Appeal. Childers v. State, 277 So.2d 594 (Fla. 4th DCA, 1973) on the same point of law. Florida Constitution, Article V, Section 3(b)(3), provides that this court may review by certiorari any decision of a District Court of Appeal that is in direct conflict with a decision of “any District Court of Appeal.”

Prior to its amendment in 1972, the Constitution gave this court jurisdiction to review by certiorari any decision of a District Court of Appeal that was in direct conflict with a decision of “another District Court of Appeal.” Fla.Const. 1956, Article V, Section 4(2). Under the 1972 amendment the fact that the conflict arises between two decisions of the same District Court of Appeal does not prevent us from taking jurisdiction.

The petitioner, defendant below, was convicted of the crime of grand larceny. In his closing argument the prosecutor made the following remarks:

“Well, ladies and gentlemen, there was no evidence of business failure. That’s very important. You see, you can’t go outside the evidence. There is no evidence of business failure, you would have heard evidence, you would have heard from the accountants of the defendant’s business, his bookmaker, his records, bankruptcy proceedings. Where is that evidence? That’s why his business failure makes no sense in this case. If he had a business failure, why didn’t he say anything about the Jozefyks, about the Groves and about the Foxes?” (emphasis supplied)

Defense counsel immediately moved for a mistrial. The court denied the motion, being of the opinion that there was no direct reference to the defendant.

A prosecutor’s comment on defendant’s failure to testify is a serious constitutional violation. See, e. g., Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); cf. Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957).

Any comment which is “fairly susceptible” of being interpreted by the jury as referring to a criminal defendant’s failure to testify constitutes reversible error, without resort to the harmless error doctrine. E. g., Trafficante v. State, 92 So.2d 811 (Fla.1957);

Kolsky v. State, 182 So.2d 305 (Fla. 2d DCA 1966); Milton v. State, 127 So.2d 460 (Fla. 2d DCA 1961); cf. King v. State, 143 So.2d 458, 464-466 (Fla.1962) (Hobson, J., concurring).

Judge Mager in his dissent (David v. State, supra, at page 421) said:

“It appears to me that this court’s recent decision in Childers v. State, 277 So.2d 594 (Fla. 4th DCA 1973), requires a reversal. Childers dealt with a far more nebulous reference to the defendant’s silence. This court, however, observed that if the prosecutorial comment:

‘is fairly susceptible of being interpreted by the jury as a statement to the effect that “an innocent man would attempt to explain the circumstances but the defendant offered no such explanation . . ” ’
“then the comment thus interpreted or construed violated the prohibition of the rule. What could be a clearer reference to the defendant’s silence than the prosecutor’s comment: ‘Why didn’t he [referring to the defendant] say anything about . ’ There is no need to resort to possible interpretations or constructions of the prosecutorial comment when there is such a direct reference to the defendant’s silence.”

This dissenting opinion may be resorted to in determining whether or not a conflict exists. Autrey v. Carroll, 240 So.2d 474 (Fla.1970); Keller v. Keller, 308 So.2d 106 (Fla.1974).

We have jurisdiction. The majority decision of the District Court of Appeal is quashed.

It is so ordered.

BOYD, SUNDBERG and HATCHETT, JJ., concur.

ENGLAND, C. J., and OVERTON, J., dissent.


text:
    STATE of Florida, Petitioner, v. David BRUNSON, Respondent.
    No. 53243.
    Supreme Court of Florida.
    April 5, 1979.

      Jim Smith, Atty. Gen., and Arthur Joel Berger and James H. Greason, Asst. Attys. Gen., Miami, for petitioner.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, Miami, for respondent.
   ADKINS, Justice.

Certiorari was granted in this cause to review the decision of the District Court of Appeal, Third District, 355 So.2d 812 (Fla. 3d DCA 1978), on grounds of direct conflict with the opinion of this Court in Barber v. State, 293 So.2d 710 (Fla.1974). Additionally, the recent decision of this Court in Hargrave v. State, 366 So.2d 1 (Fla.1978), demonstrates conflict.

Petitioner, the State of Florida, was ap-pellee in the District Court of Appeal for the Third District. Respondent, David Brunson, was a 17-year-old juvenile defendant in the trial court and appellant on appeal. After being charged by information with robbery, Defendant was to have been tried as an adult. Pursuant to plea negotiations he pled guilty to a reduced charge of grand larceny, was adjudicated guilty and placed on probation. The probation was specially conditioned on the completion of a vocational training program. Defendant misrepresented to the court the status of his enrollment in such a program and otherwise failed to comply with the special condition. A hearing was held on Defendant’s probation violation, at which time he was given another chance to demonstrate his potential for rehabilitation. Defendant was then enrolled in another rehabilitative program and was informed by his probation officer that a failure to complete the program would result in an appearance before the court for sentencing. He also failed to comply with the obligations of his second chance at probation. A second probation violation hearing was held. It resulted in the sentencing of Defendant to a prison term on the grand larceny charge.

Prior to sentencing, Defendant’s counsel requested the court to postpone final disposition until a presentence investigation was made and considered. The trial judge refused. Upon review, the appellate court found for the Defendant and held the trial judge’s refusal to order a presentence investigation violated Fla.R.Crim.P. 3.710. We disagree.

The primary question before this Court is whether Fla.R.Crim.P. 3.710 requires a presentence investigation before sentencing a juvenile felon who was placed on probation, but then had his probation revoked for violating its conditions. The rule states:

In all cases in which the court has discretion as to what sentence may be imposed, the court may refer the case to the probation and parole commission for investigation and recommendation. No sentence or sentences other than probation shall be imposed on any defendant found guilty of a first felony offense or found guilty of a felony while under the age of 18 years, until after such investigation has first been made and the recommendations of the commission received and considered by the sentencing judge.

This rule establishes two categories of persons who must receive^ benefit of a presen-tence investigative report prior to the imposition of a prison sentence: (1) adult first felony offenders, and (2) felony offenders under the age of eighteen. (No report is necessary where the specific sentence is mandatory. Committee note of Rule 3.710.)

This Court has held that a presentence investigation is not required for an adult first felon who has been sentenced to probation, but then had his probation revoked for violating its terms. Barber v. State, 293 So.2d 710 (Fla.1974). In that case Justice Dekle said:

The wording of CrPR 3.710 mirrors the similarity of purpose of a pre-sentence investigation and that of the granting of probation. Either a granting of probation or a pre-sentence investigation is required. Probation may be used to give the offender a chance to show by his deeds that he will live within the law; a pre-sentence investigation is used to determine if there is a substantial likelihood that the offender will do so. A favorable pre-sentence report is generally the basis for granting probation; the two serve the same function . . . [N]o pre-sen-tence investigation is required where probation is granted; it presumes the result which such pre-sentence investigation would support; you might say it becomes a useless act when the purpose is fully conceded. Id. at 711-12. (Emphasis in original.)

The rationale of Barber also applies to convicted felons under the age of eighteen. When appearing in adult court, the juvenile offender who is placed on probation may likewise demonstrate his inability to remain within the law and thereby eliminate the need for a presentence investigation.

In Hargrave, supra, we said:

The import of the mandatory provisions of Rule 3.710 is made clear by the fact that it exempts the necessity for a presentence investigation report for first felony offenders and those under age 18 where probation has already been determined by the judge to be the appropriate sentence. (Emphasis added.)

We do not retreat from this position. A presentenee investigation is only required when probation is an alternative sentence available to the trial judge. In other situations the presentence investigation is a useful but optional tool which may be used at the trial court’s discretion.

It is the policy of this Court that youthful offenders, as a class, be sentenced to correctional programs which are designed to promote their successful return to society. We are cognizant of recent legislative efforts to provide for such programs. See Ch. 78-84, Laws of Fla.; Section 959.-115, Fla.Stat. (1977). In order for the juvenile offender to achieve the greatest chance of successful correction, the courts of this state must avoid sentences based upon guesswork and inadequate information. The presentence investigation may be a very helpful informational source and its use is encouraged.

In the case at bar, Defendant’s pattern of conduct provided the trial judge with sufficient information to terminate probation and to sentence him without benefit of presentence investigation. We specifically hold that a felon under eighteen years of age who is sentenced to probation, but who subsequently violates that probation in a manner which justifies its revocation, may be sentenced without benefit of a presentence investigation. We further hold that once a juvenile felon has demonstrated his inability to comply with the conditions of his probation and has consequently had it revoked, a presentence investigation is not required before sentencing on any subsequent felonies he may commit. We construe Fla.R.Crim.P. 3.710 to allow the trial judge to exercise his discretion in the preceding situation and sentence the juvenile as if he were a second felony offender over the age of eighteen.

Accordingly, the decision of the District Court of Appeal is quashed and that portion of Andrews v. State, 309 So.2d 576 (Fla. 1st DCA 1975) which conflicts with this decision is disapproved.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Sandra LEIGH, Appellee.
    No. 53339.
    Supreme Court of Florida.
    April 5, 1979.

      Jim Smith, Atty. Gen., Joel D. Rosen-blatt, Asst. Atty. Gen., Miami, and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellant.
    Bennett H. Brummer, Public Defender, and Paul Morris, Asst. Public Defender, Miami, for appellee.
   PER CURIAM.

Reversed. Hamilton v. State, 366 So.2d 8 (Fla.1978); Bourassa v. State, 366 So.2d 12 (Fla.1978); Laird v. State, 342 So.2d 962 (Fla.1977).

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

ADKINS, J., dissents.


text:
    James W. INGRAM, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 53929.
    Supreme Court of Florida.
    April 5, 1979.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, Miami, for petitioner.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., Miami, for respondent.
   PER CURIAM.

The petition for writ of certiorari reflected apparent jurisdiction in this Court. We issued the writ. Upon further consideration of the matter, we have determined that the cited decisions present no direct conflict as required by article V, section (3)(b)(3), Florida Constitution. Therefore, the writ must be and is hereby discharged.

It is so ordered.

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


author: OVERTON, Justice.

text:
    James E. RIGGINS, Appellant, v. STATE of Florida, Appellee.
    No. 55737.
    Supreme Court of Florida.
    April 5, 1979.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief, App. Div., West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., and Mary E. Mars-den, Asst. Atty. Gen., West Palm Beach, for appellee.
   OVERTON, Justice.

This case is before the Court on direct appeal from an order of a circuit court which inherently passed upon the validity of a statute. We have jurisdiction.

The appellant was charged with a violation of section 409.325, Florida Statutes (1977), which prohibits the fraudulent failure to disclose a material fact used to determine eligibility for the food stamp program. Appellant moved to dismiss the information on the ground that the statute was unconstitutionally overbroad and vague. The appellant further contended that the Act constituted an unlawful delegation of legislative authority. The motion to dismiss was denied, and the appellant pleaded nolo con-tendere, reserving his right to an appeal on the issue of the constitutionality of the statute.

We recently considered the validity of section 409.325(2)(a), Florida Statutes, in State v. Rodriquez, 365 So.2d 157 (Fla.1978). In that case we stated that the provision of the statute that “ ‘[a]ny person who knowingly: (a) [u]ses, transfers, acquires, traffics, alters, forges, or possesses ... a food stamp ... in any manner not authorized by law is guilty of a crime. . ’ ” was “sufficiently definite to give reasonable notice that federal food stamp and United States Department of Agriculture regulations apply.” This made the warning of the conduct which was proscribed sufficiently definite to withstand a challenge that it was unconstitutionally overbroad and vague.

An examination of section 409.-325(l)(a) reveals that it suffers neither from vagueness nor overbreadth. A man of common intelligence knows that the statute’s proscription of fraudulently failing to disclose a “material fact” encompasses any fact which would affect eligibility for the program. Accordingly, we hold that section 409.325(l)(a) is neither vague nor over-broad.

The appellant also contends that the statute constitutes an unlawful delegation of legislative authority. This argument is without merit. As we held in Rodriquez, the only federal law incorporated by section 409.325 is the federal law in existence when the statute was enacted.

For the foregoing reasons, the judgment of the circuit court is affirmed.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, HATCHETT and ALDERMAN, JJ., concur.

SUNDBERG, J., concurs in result only.

      . Art. V, § 3(b)(1), Fla.Const. See Harrell’s Candy Kitchen, Inc. v. Sarasota-Manatee Airport Auth., 111 So.2d 439 (Fla.1959).

      . A third contention, that the statute unconstitutionally requires imprisonment for debt, was not raised on appeal.

      . See State v. Ashby, 245 So.2d 225, 228 (Fla.1971).

      . Cf. State v. Knowles, 79 Wash.2d 835, 490 P.2d 113 (1971) (upholding the validity of the Washington welfare fraud statute).


text:
    Percy ROLLINS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-665.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 1978.
    Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender and Andrew Rosen, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., and Paul Mendelson, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   PER CURIAM.

Percy Rollins was charged by information with second degree murder. He was found guilty by a jury, adjudged guilty by the court and sentenced to a term of imprisonment for life. He presents for review two points, each of which merits discussion.

The first point we discuss is defendant’s contention that he was entitled to discharge pursuant to the speedy trial rule upon his motion filed January 17, 1977. Appellant’s brief lists eleven continuances in the trial of this cause. He admits that many were at his request and others with his agreement. The defendant has not furnished us with the record of the proceedings at some of these continuances. At the time that the trial judge denied the motion for discharge, he cautioned the defendant that his ruling was based upon waiver of the rule and requested on the record that in the event of appeal of his ruling, the defendant should bring to this court the record of all continuances. This was not done. Accordingly, we find no error under this point upon this record. Cf. Montalvo v. State, 323 So.2d 674 (Fla.3d DCA 1975).

The Defendant’s remaining point shows reversible error on this record. It is as follows:

“Where the defendant was charged with second degree murder, the failure of the trial court to instruct the jury on third degree murder when so requested by the defendant, constituted error per se and thus the defendant was deprived of his right to be pardoned by the jury and his constitutional right to trial by jury in violation of the Sixth and Fourteenth Amendment to the Constitution of the United States and Article 1, Sections 9 and 16 of the Constitution of the State of Florida.”

In Brown v. State, 206 So.2d 377 (Fla.1968), the Supreme Court of Florida directed:

sk :fc sis & sk
“Section 919.14, applies only to those crimes which are divided into degrees, e.g., unlawful homicide (Fla.Stat. §§ 782.-04, 782.06, F.S.A.), and, arson (Fla.Stat. §§ 806.01-806.04, F.S.A.). If an accused is charged with the highest degree of such a crime, the court should charge the jury on all lesser degrees. In this category it is immaterial whether the indictment specifically charges the lesser degrees or whether there is any evidence of a crime of such degree. Killen v. State, 92 So.2d 825 (Fla.1957); Brown v. State, 124 So.2d 481 (Fla.1960). The court must instruct on the lesser degrees simply because § 919.14 clearly requires it, and not because such degrees are necessarily included lesser offenses. In many cases the elements of the lesser degrees are totally distinct from the offense charged.”
M * * * if! *

It should be noted that the pardoning power of a jury is a creature of legislative lineage. Formerly, Section 919.14, Florida Statutes (1969), provided:

“If the indictment or information charges an offense which is divided into degrees, without specifying the degree, the jurors may find the defendant guilty of any degree of the offense charged; if the indictment or information charges a particular degree the jurors may find the defendant guilty of the degree charged or of any lesser degree. The court shall in all such cases charge the jury as to the degrees of the offense.”

This statute has become codified in what is now Fla.R.Crim.P. 3.490.

The State contends that this provision of the law has been changed by State v. Jefferson, 347 So.2d 427 (Fla.1977) and Adams v. State, 341 So.2d 765 (Fla.1976). We must respectfully disagree and adhere to the law as explicitly stated by the Supreme Court. Therefore, the defendant must be accorded a new trial. See State v. Abreau, 363 So.2d 1063 (Fla.1978).

The judgment and sentence are reversed and the cause remanded with directions to grant the defendant a new trial.

      . Fla.R.Crim.P. 3.191(d)(3).

      . Petition for Rehearing presently pending before the Florida Supreme Court.


author: PER CURIAM. PEARSON, Judge

text:
    Richard FRANCIONI, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1926.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 1978.
    Rehearing Denied Dec. 13, 1978.

      Hirschhorn & Freeman and Joel Hirsch-horn, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., PEARSON, J., and CRAWFORD, GRADY, L. (Ret.), Associate Judge.
   PER CURIAM.

Defendant, Richard Francioni, appeals his conviction following a jury trial for (1) aggravated assault and (2) use of a firearm in commission of a felony and mandatory sentence of three years on the assault charge.

Francioni raises several points on appeal, only one of which merits a brief discussion: whether the court erred in denying his motion in arrest of judgment and sentence where .the application of the three-year mandatory minimum sentence [Section 775.-087(2), Florida Statutes (1976)] under the facts of this case is so disproportionate to the nature and the gravity of the offense and so excessive as to amount to violation of the Eighth Amendment to the United States Constitution prohibiting cruel and unusual punishment.

Our Supreme Court has held that the mandatory three-year sentence which must be served before being eligible for parole upon conviction of aggravated assault through the use of a firearm as provided by Section 775.087(2), Florida Statutes (1976) is not cruel and unusual on its face and, therefore, constitutional. Sowell v. State, 342 So.2d 969 (Fla.1977). Although the imposition of the mandatory three-year sentence may appear to be somewhat harsh in the case at bar, it is not so excessive or so disproportionate to the nature and gravity of the offense (aggravated assault through the use of a firearm) as to reach the level of cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. Cf. Chavigny v. State, 112 So.2d 910, 915 (Fla. 2d DCA 1959). The sentence imposed upon Francioni being within the statutory limits, this point is without merit.

Having failed to demonstrate reversible error in his remaining points, the convictions and sentence are affirmed.

Affirmed.

PEARSON, Judge

(concurring in part and dissenting in part).

I concur in the decision affirming the judgment. I would, however, hold that the mandatory three year sentence which must be served before being eligible for parole is, under the facts of this case, cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. In Sowell v. State, 342 So.2d 969 (Fla.1977), the Supreme Court of Florida reaffirmed the doctrine that where a sentence is one that has been established by the legislature and is not, on its face, cruel and unusual, it will be sustained when attacked on grounds of due process, equal protection or separation of powers. However, I think that the majority overlooks the fact that the Supreme Court examined the facts of the Sowell case and made an independent determination that the court did not find the mandatory three year sentence provision to be cruel and unusual.

Having examined the facts of this case, which reveal that a police officer of nineteen years service with the City of Miami Beach Police Department was involved in what might be described as a jurisdictional dispute with another officer of another police agency and that the defendant was under emotional stress at the time because of domestic troubles, I would hold that the imposition of the mandatory three year jail sentence is cruel and unusual punishment.

I am aware that the appellate courts of this state do not have the judicial machinery necessary to review every sentence as to its propriety under the circumstances of the particular case. Nevertheless, I would not tie the hands of the appellate courts to reverse a sentence that is, on the record before them, so improper as to be illegal in a particular case. The difficulty presented here touches upon the whole problem with mandatory sentences. Much has been written on the subject and is of common knowledge to the bar. See, e. g., 52 U.N.C.L.Rev. 442 (1973); and 28 U.Okla.L.Rev. 614 (1975). We are, of course, bound by the decision of the Florida Supreme Court that mandatory sentences are legal. My one hope in this dissent is that there can be preserved to the appellate process the right to declare a clearly improper sentence, although authorized by the legislature, to be cruel and unusual under the facts of a particular case.

I believe the case of Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973), is dispositive of the principles of law that I would apply here. In that case, the appellant received a mandatory life sentence under a West Virginia recidivist statute as a result of successive convictions for (1) writing a fifty dollar check on insufficient funds, (2) transporting one hundred and forty dollars worth of forged checks across state lines and (3) perjury. The issue presented was

“ . . whether the recidivist mandatory life sentence in this case is so excessive and disproportionate to the underlying offenses as to constitute cruel and unusual punishment.”

In answering this question, the court argued that “ . . .to view the West Virginia recidivist statute with its mandatory life sentence as facially constitutional is not the end of the inquiry.” The court set out certain factors to be considered in making a determination of this sort. One of these factors was the “disproportionality” of the punishment to the offense committed; another was the legislative intent behind the punishment.

In the present case, the majority does not find the punishment disproportionate to the offense committed. However, under the particular facts and circumstances involved here, I would hold otherwise. And with regard to the legislative intent behind the statute, I should hardly imagine that the legislature intended — or ever envisaged— the statute’s application to an off-duty, emotionally distressed police officer brandishing his hand gun at another (plainclothes) police officer from a “rival” police department when stopped along the highway for a vehicular (speeding) infraction.

In Faulkner v. State, 445 P.2d 815 (Alaska 1968), Justice Dimond commented:

“I recognize the fact that ordinarily a sentence with statutory limits should not be disturbed. But I also believe that it is conceivable that in extraordinary circumstances a sentence, although within the limits prescribed by law, may be so ‘disproportionate to the offense committed as to be completely arbitrary and shocking to the sense of justice,’ and thus would amount to an unconstitutional cruel and unusual punishment.”

The Hart and Faulkner cases, supra, both make reference to the case of Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910), for the proposition that it is a precept of justice that punishment for crime should be graduated in proportion to the offense.

Finally, I would comment that the severity of the punishment should not matter, for as stated in Robinson v, California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962),

“ . . . imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.”

I,therefore, dissent from that portion of the judgment which affirms the sentence and would remand the cause to the trial court for the imposition of a lesser sentence which the judge, himself, found appropriate in the present ease.

      . Sentence was suspended on the other count.

      . * * * * * *
      “If you are going to talk about mitigating factors, I have no intention of giving him anything more than the mandatory minimum. And nothing that any of these letters say could get him any less than what I intend to give him. I was impressed with the letters. I have seen him in the courts over the years, coming and going. During my experience, I know he has been a good police officer. I don’t feel good about sentencing him to three years because on a particular night, apparently, he had too much to drink and did something stupid that he probably never in a thousand years would have done again. I don’t feel good about it at all. In fact, l have never felt worse about a sentence. Nonetheless, I have absolutely no discretion, as I see it, in the matter. And having no discretion, I can’t give him any less than the minimum."


author: HENDRY, Judge.

text:
    AETNA INSURANCE COMPANY, a corporation authorized to transact business in the State of Florida, Appellant, v. Patrick SETTEMBRINO and Maria Settembrino, his wife, Appellees.
    Nos. 77-1864, 77-2063.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 1978.
    Rehearing Denied Oct. 9, 1978.
    George J. Baya, Miami, for appellant.
    Robert S. Korschun, Miami, for appellees.
    Before HENDRY and HUBBART, JJ. and CHARLES CARROLL (Ret.), Associate Judge.
   HENDRY, Judge.

Appellant/defendant/insurer takes this consolidated appeal from an “interest judgment” and a “judgment for attorney’s fees” both rendered in favor of appellees/plain-tiffs/insureds.

The underlying facts of this case can be found in Aetna Insurance Company v. Settembrino, 324 So.2d 113 (Fla.3d DCA 1975), an interlocutory appeal from a partial summary judgment, wherein we affirmed a judgment which held appellant, Aetna Insurance Company, liable to appellees, the Settembrinos, as assignees, under two policies of fire insurance issued by appellant and covering a building and its contents which were subsequently damaged by fire.

At the end of a jury trial on the damage question, a verdict was returned for appel-lees in the amount of NINETEEN THOUSAND, SIX HUNDRED ($19,600.00) DOLLARS. Final judgment was thereupon entered in the principal amount “plus interest, costs, and attorney’s fees to be determined at a later time.” Subsequently, the trial judge entered a judgment for interest in the sum of SEVEN THOUSAND FIVE HUNDRED, SIXTY-FOUR ($7,564.33) DOLLARS and THIRTY-THREE CENTS, computed from the date of the loss in December 28, 1970, to the date of the verdict on June 3, 1977, at the rate of six (6%) per cent on the principal sum of NINETEEN THOUSAND, SIX HUNDRED ($19,600.00) DOLLARS. Pursuant to Section 627.428, Florida Statutes (1975), a judgment for attorney’s fees, in the amount of FIFTEEN THOUSAND ($15,000.00) DOLLARS was also entered in favor of appellees.

From the above judgments, appellant has taken this consolidated appeal. Appellees have cross-appealed from the judgment on attorney’s fees.

Firstly, regarding the award of attorney’s fees, appellant contends that said fees are excessive, in light of the jury verdict. Appellees, on the other hand, argue that the award is inadequate. We disagree on both counts. Other factors besides the amount of final judgment may be considered in determining the amount of attorney’s fees. Republic National Life Insurance Company v. Valdes, 348 So.2d 566 (Fla.3d DCA 1977). In light of the protracted litigation (six years) involved in this lawsuit, we cannot say that, pursuant to an evidentiary hearing on the matter, the trial judge abused his discretion in entering the aforementioned award. Massachusetts Indemnity & Life Insurance Company v. Schupper, 301 So.2d 789 (Fla.3d DCA 1974); All-Star Insurance Corporation v. Scandia, Inc., 353 So.2d 171 (Fla.3d DCA 1977).

Secondly, regarding the “interest judgment,” it is appellant’s contention that the trial judge erred in entering an interest judgment when the jury verdict made no reference to, or allowance for, interest therein. In that the jury verdict is silent with respect to interest, it is our opinion that the trial judge did, in fact, so err. Schulman v. Cort Aviation Corporation, 330 So.2d 114 (Fla.3d DCA 1976); Commodore Plaza at Century 21 Condominium Association, Inc. v. Cohen, 350 So.2d 502 (Fla.3d DCA 1977).

Accordingly, the “judgment for attorney’s fees” is affirmed, while the “interest judgment” is reversed.

Affirmed in part; reversed in part.


author: KEHOE, Judge.

text:
    INTERNATIONAL EQUIPMENT CO., Appellant, v. TOWN SANDWICH SHOP, INC., et al., Appellees.
    No. 77-2678.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 1978.
    Rehearing Denied Nov. 9, 1978.

      Krongold & Bass and Paul H. Bass, Miami, for appellant.
    I. R. Mayers, Miami, for appellees.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   KEHOE, Judge.

Appellant, plaintiff below, brings this appeal from an order granting appellees’, defendants below, motion for enforcement of a settlement agreement, a final judgment in favor of appellees’ on their counterclaim in the amount of $64,000, and an order denying their motion to vacate, amend, or set aside the final judgment.

We have carefully reviewed each of the points raised by appellant on appeal, and have concluded that, except as to one, they are without merit. We believe that, as contended by appellant, the trial court erred in entering a final judgment for damages in the amount of $64,000 on appellees’ counterclaim because there was no testimony, or other substantial competent evidence, proffered to enable the trial court to properly ascertain the amount of the actual damages involved in this case. See, e. g., United Steel & Strip Corp. v. Monex Corporation, 310 So.2d 339 (Fla.3d DCA 1975). Accordingly, the orders and judgment appealed are affirmed, except that portion of the final judgment allowing damages in the amount of $64,000 is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.


author: HAVERFIELD, Chief Judge.

text:
    Eugene C. HEIMAN, Appellant, v. Barbara HEIMAN, Appellee.
    No. 78-320.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 1978.
    Rehearing Denied Jan. 10, 1979.
    Smathers & Thompson and Earl D. Wal-din, Jr., Miami, for appellant.

      Schwartz, Klein & Steinhardt and Norman S. Klein, North Miami Beach, for ap-pellee.
    Before HAVERFIELD, C. J., and HUB-BART and KEHOE, JJ.
   HAVERFIELD, Chief Judge.

Petitioner, Eugene Heiman, appeals an order overruling his objections to requests for production and written interrogatories made by his former wife, Barbara, in a dispute over required amount of child support payments.

We conclude that appellant in essence is seeking a judicial determination as to whether under the terms of a settlement agreement he is still obligated to pay Barbara the weekly support for one of his sons while at the same time paying for that son’s college expenses, including room, board and clothing.

In 1965 a final judgment was entered terminating the marriage between Eugene and Barbara Heiman. The judgment incorporated a settlement agreement which in pertinent part provided $30 weekly as child support for each of their two minor sons, Daniel and Gary; that Eugene was to be responsible for all costs and expenses of college education for the boys. Over the years the support payments were increased by modification decrees to $75 weekly per child. In the fall of 1977 Daniel enrolled at the University of North Carolina and his father paid all the expenses including tuition, clothing, travel, room and board, etc. Thereupon Mr. Heiman filed a petition seeking a decrease in the amount of child support or in the alternative a declaratory judgment construing the terms of the settlement agreement to determine whether he is still obligated thereunder to pay Barbara the $75 weekly support for Daniel while at the same time paying for Daniel’s college expenses set out above. As respondent, Barbara Heiman served upon him a notice to produce financial records and extensive interrogatories inquiring into his financial status. Mr. Heiman filed his objections to the above and after a hearing the trial court entered an order overruling those objections.

The action being in the nature of an application for a declaratory judgment rather than a request for a reduction in child support payments based upon a change in financial status, Mr. Heiman’s financial status does not fall within the scope of discovery permitted under Fla.R. Civ.P. 1.280.

Accordingly, the order overruling Mr. Heiman’s objections is reversed and the cause is remanded to the trial court for further proceedings consistent herewith.

Reversed and remanded.


text:
    Raymond ROMINE, etc., Appellant, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 78-69.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 1978.
    Tew & Mason and Jeffrey A. Tew, Miami, for appellant.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellee.
    Before BARKDULL and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Cheney v. Dade County, 353 So.2d 623 (Fla. 3d DCA 1977).


text:
    Violet Lydia PHELPS, Appellant, v. John D. PHELPS, Annette T. Phelps, his wife and Home Federal Savings and Loan Association of Hollywood, Appellees.
    No. 78-729.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 1978.
    Fink & Syna and Sidney L. Syna, Miami, for appellant.
    Joseph S. Marcus, Homestead, for appel-lees.
    Before BARKDULL, HUBBART and KEHOE, JJ.
   PER CURIAM.

The order under review is reversed and the cause remanded with directions to enter a judgment in favor of the appellant Violet Lydia Phelps based on the authority of Gyorok v. Davis, 183 So.2d 701 (Fla. 3d DCA 1966); §§ 56.29(6)(a), 726.01 Fla.Stat. (1977). In our view, a fraudulent conveyance of monies herein into the subject joint bank account was established by the appellant in the trial court as a matter of law.


text:
    Jesse F. DIAZ, a/k/a George N. Feder, a/k/a Jesse Francis Diaz, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1581.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 1978.
    George E. Tragos, Clearwater, for appellant.
    Robert L.- Shevin, Atty. Gen., for appel-lee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Upon review of the record and pleadings before this court, we affirm the action of the trial judge in denying appellant’s motion to vacate, pursuant to Fla.R.Crim.P. 3.850 as to the adjudication of guilt, but return the matter to the trial court to determine whether a pre-sentence report is necessary and, if so, with directions to set aside the sentence, order a pre-sentence report, and subsequent to review thereof impose a proper sentence.

      . Grubbs v. State, 311 So.2d 411 (Fla. 2d DCA 1975); Davenport v. State, 317 So.2d 851 (Fla. 1st DCA 1975); Beverly v. State, 330 So.2d 527 (Fla. 1st DCA 1976).


text:
    Charles Lee STROZIER, Appellant, v. STATE of Florida, Appellee.
    No. 75-892.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1978.
    Bennett H. Brummer, Public Defender and Karen Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Sheyin, Atty. Gen. and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and BARKDULL, JJ.
   ON RECONSIDERATION, PURSUANT TO REMAND

PER CURIAM.

The judgment of this court entered on February 24, 1976 in Strozier v. State, 327 So.2d 839 (Fla. 3d DC A 1976), was reviewed by the Supreme Court of Florida upon petition for certiorari which was treated as a petition for writ of habeas corpus, by appellant Charles Lee Strozier, whereupon the Supreme Court granted appellant’s petition and remanded the cause, for further proceedings consistent with its recent decision in Clark v. State, 363 So.2d 331 (1978).

Now, therefore on reconsideration of the appeal in light of Clark, our judgment affirming the trial court is vacated, and the judgment of the trial court is hereby reversed on the authority of Clark v. State, supra. The cause is remanded to the circuit court for a new trial.

It is so ordered.


text:
    Leonard E. TREISTER and Diana Treister, his wife, Appellants, v. CAPITAL BANK OF MIAMI, N. A., f/k/a National Industrial Bank of Miami, Appellee.
    No. 78-527.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.
    Rehearing Denied Jan. 3, 1979.
    Welbaum, Zook, Jones & Williams and Rene Sacasas, Miami, for appellants.

      Frank, Strelkow & Gay and Peter Strel-kow, North Bay Village, for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

The appellants were defendants in the trial court to an action seeking a judgment on their promissory note. After a trial of the cause before the court without a jury, a judgment for the plaintiff bank was entered. This appeal followed.

The issues for trial arose from the defendants’ affirmative defenses. The first point on appeal urges that the affirmative defenses were confessed by the failure of the plaintiff to file a reply. See Fla.R. Civ.P. 1.110(e). We hold that no error has been shown inasmuch as the plaintiff’s evidence upon the issues raised by the affirmative defenses did not consist of avoidance, but rather of a denial of the allegations contained in the defenses. See American Salvage and Jobbing Company, Inc. v. Salomon, 295 So.2d 710 (Fla.3d DCA 1974).

The second point on appeal, urging error because of the trial court’s failure to sustain the defendants’ second affirmative defense of payment, is without merit because the record reveals evidence which, if believed by the trial judge, would support the plaintiff bank’s position that monies received were properly applied. See Hough v. Menses, 95 So.2d 410 (Fla.1957).

Affirmed.


text:
    Paul ROSEN, Appellant, v. Byron SPARBER et al., Appellees.
    No. 78-496.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 1978.
    Rehearing Denied Jan. 22, 1979.

      Smith, Mandler, Smith, Werner, Jacobo-witz & Fried and Julian R. Benjamin, Miami Beach, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellees.
    Before HUBBART, KEHOE and SCHWARTZ, JJ.
   KEHOE, Judge.

Appellant, plaintiff below, brings this appeal, arising out of a legal malpractice action, from a summary final judgment entered in favor of appellees, defendants below. We reverse.

The pertinent portions of the summary final judgment read as follows:

“THE CAUSE came on to be heard upon .the Motion of the Defendants for Summary Judgment and the argument of counsel having been heard and the Court having reviewed the pleadings and depositions on file and having concluded that the pleadings and depositions on file in this cause show that there is no genuine issue as to the fact that this cause of action was not commenced by the Plaintiff within two years from the time this cause of action was discovered by the Plaintiff or should have been discovered by the Plaintiff with the exercise of due diligence and that the Defendant, therefore, is entitled to a Judgment as a matter of law,
IT IS ADJUDGED:
“1. The Motion of the Defendants for Summary Final Judgment be and the same is hereby granted on the ground, as asserted in the SECOND DEFENSE of the Defendants’ Answer, that this action is time barred pursuant to Section 95.-ll(4)(a), Florida Statutes.”

It is conceded by the parties that Section 95.11(4)(a), Florida Statutes (1977), requires a legal malpractice action to be filed within two years of the time that a plaintiff knew or should have known by the exercise of reasonable diligence that a cause of action exists. Although, in the instant case, the trial court did not state specifically on what date the statute of limitations started to run, the sole basis shown by the record to support the judgment is that the statute started to run when appellant was served with a complaint in a separate lawsuit against him, i. e., at that time he should have known from the complaint filed against him that he had a malpractice action against appellees.

We must respectfully differ from this reasoning because, in our opinion, the mere filing of the lawsuit against appellant did not necessarily start the running of the statute of limitations. We note that the record shows appellant had no “actual knowledge” which would have caused the statute to run. Thus, the critical question before the trial court at the time that it entered the summary final judgment was whether appellant “should have known by the exercise of reasonable diligence” whether he had a cause of action against appel-lees. This question was one properly for -the jury to determine and could not be resolved on appellees’ motion for summary judgment. See Edwards v. Ford, 279 So.2d 851 (Fla.1973); Smith v. Hussey, 363 So.2d 1138 (Fla. 2d DCA 1978); Steiner v. Ciba-Geigy Corp., 364 So.2d 47 (Fla. 3d DCA 1978); Pinkerton v. West, 353 So.2d 102 (Fla. 4th DCA 1977); Schetter v. Jordan, 294 So.2d 130 (Fla. 4th DCA 1974); and Fla.R.Civ.P. 1.510. Accordingly, based upon the reasons and authorities set forth above, the summary final judgment appealed is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

      . Appellees, attorneys at law, were retained by appellant to represent him in creating certain limited partnerships to comply with all applicable Federal and State laws for, among other things, the solicitation of investors, the sale of limited partnership shares to investors, and to make sure that the sale of any securities were in compliance with the Federal and State blue-sky laws. After the formation of the limited partnerships, appellant, in reliance upon the advice of appellees, offered and sold certain security interests in the limited partnerships to third persons. These security interests were offered and sold in violation of the applicable blue-sky laws. As a result, appellant was sued by certain of these third persons whose claims he had to settle and compromise for an amount in excess of $70,000. It is the complaint in this lawsuit that was relied upon by the trial court as giving appellant notice of his cause of action against appellees and, therefore, starting the statute of limitations for malpractice actions to run.


text:
    Michael W. BARHAM, Appellant, v. STATE of Florida, Appellee.
    No. JJ-300.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1978.
    Rehearing Denied Feb. 26, 1979.
    Michael J. Minerva, Public Defender, Charles J. Kahn, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED.

McCORD, C. J., and ERVIN and MELVIN, JJ., concur.


text:
    Michael MONROE, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2484.
    District Court of Appeal of Florida, Third District.
    Jan. 9, 1979.
    Rehearing Denied Feb. 5, 1979.

      Alvin E. Entin and Ronald A. Dion, Miami, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., and Sharon Lan-ger, Legal Intern, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

Defendant, Michael Monroe, appeals his conviction • for second degree murder and robbery based upon a plea of nolo conten-dere tendered subsequent to the denial of his motion to suppress his conviction. The salient facts are as follows:

On April 19, 1977 Monroe was extradited from New York to the Dade County jail on a charge of first degree murder and a preliminary hearing was scheduled. The office of the public defender was appointed to represent Monroe; however, upon examining Monroe’s file, they discovered a possible conflict between representation of Monroe and his co-defendant and on the same day (April 19) filed a certificate of conflict with the trial court. On April 20 Officers Stonbreaker and Tootle, who were not aware that Monroe had counsel, went to the county jail and spoke to him. After advising Monroe of his rights, including the right to counsel which he waived, he agreed to accompany the officers to the State Attorney’s office for the purpose of giving a statement to the prosecutor who mistakenly believed that Monroe was not represented by counsel because of the filing of the certificate of conflict by the public defender. After making a statement which in effect denied any participation in the murder, Monroe, at the request of the police officers, indicated he would submit to a polygraph examination. After undergoing the examination, the examiner confronted Monroe with the results which reflect that some of his answers were deceptive. Monroe confessed participation in the murder to the examiner who turned him over to the investigating officers. The officers again advised him of his rights and Monroe again confessed. On April 21 the public defender was allowed to withdraw and private counsel was appointed. Thereafter, on April 28 Monroe was indicted by the grand jury for murder in the first degree and pled not guilty. Defense counsel moved to suppress the confession on the ground it was obtained in violation of Monroe’s right to counsel in that at no time was Monroe advised that he already had counsel, nor was counsel advised of the investigation. After a hearing, the trial judge determined that the confession was freely and voluntarily given after Monroe knowingly and intelligently waived his rights, including the right to counsel. Thereupon, the motion,to suppress was denied and defense counsel entered into plea bargain negotiations with the prosecution. It was agreed that the indictment for first degree murder be withdrawn and in lieu thereof, an information for second degree murder and robbery would be filed. In exchange Monroe tendered a plea of nolo contendere to the charges in the information and preserved his right to appeal the denial of his motion to suppress his confession.

Monroe basically argues that the trial court erred in denying his motion to suppress because he was not made aware that he had court-appointed counsel, nor was his counsel informed of or present at the interrogation. In support of his argument, Monroe relies upon the holding in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) that under the constitutional guaranty of right to assistance of counsel, the defendant’s incriminating statements, elicited by government agents after he had been indicted and in the absence of counsel, were not admissible at trial.

It does not follow that all statements made in the absence of counsel are inadmissible; but each case must turn on the facts and circumstances surrounding the particular interrogation. United States v. Brown, 551 F.2d 639, 643-4 (5th Cir. 1977). A valid interrogation of a defendant can take place out of the presence of his attorney where the defendant knowingly and intelligently waives his right to have counsel present at some particular critical stage of the proceedings, and further the presence of his counsel is not essential to the validity or effectiveness of that waiver. Johnson v. State, 268 So.2d 544, 546 (Fla.3d DCA 1972), cert. discharged, 294 So.2d 69 (1974). The voluntariness of in-custody statements of persons accused of a crime and of the waiver of the right to counsel at an interrogation need only be established by a preponderance of the evidence. Johnson v. State, 294 So.2d 69 (Fla.1974), supra.

The evidence is undisputed that the interrogating officers and the prosecutor were unaware that Monroe had counsel. Monroe was advised of his rights on two occasions and twice waived them. He agreed to accompany the investigating officers to the prosecutor’s office and voluntarily submitted to the polygraph examination. Unlike the Massiah case, supra, we find that Monroe’s confession was not obtained from him surreptitiously without his knowing consent to interrogation or a waiver of the right to have counsel present. The record supports the conclusion of the trial judge by more than a mere preponderance of the evidence that Monroe made a knowing, intelligent and voluntary waiver and there was no bad faith or coercion on the part of the investigating officers.

We additionally note that Monroe failed in his burden to clearly show that the State’s case could not succeed without‘the use of his confession which he sought to suppress and, therefore, the denial of his motion to suppress which raised solely a question of law could not be specifically preserved for appellate review by him upon entry of his plea of nolo contendere. See Brown v. State, 355 So.2d 138 (Fla.3d DCA 1978).

For the reasons stated, the denial of his motion to suppress is affirmed.

Affirmed.

      . However, he had not yet been indicted at this point in time.

      . Monroe was also unaware that the public defender had been appointed to represent him.