author: PER CURIAM. ALDERMAN, Justice,

text:
    BOSTON OLD COLONY INSURANCE COMPANY, Petitioner, v. Raul GUTIERREZ, Respondent.
    No. 54769.
    Supreme Court of Florida.
    April 10, 1980.
    Rehearing Denied Sept. 4, 1980.

      James E. Tribble of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for petitioner.
    Murray Sams, Jr. and Francis W. Sams of Sams, Gerstein & Ward, Miami, for respondent.
   PER CURIAM.

We have for review the decision of the District Court of Appeal, Third District, in Boston Old Colony Ins. Co. v. Gutierrez, 360 So.2d 464 (Fla.3d DCA 1978). That court has certified the following question as passing upon a question of great public interest: “Does the law as enunciated in Thompson v. Commercial Union Ins. Co. of New York, 250 So.2d 259 (Fla.1971), authorize a bad faith action against an insurance company when that company has refused to settle a claim at the express direction of its own insured who obtains a settlement of his claim and the insurance company thereafter offers to settle for its policy limits before trial?” Although we hold that Thompson may, in some circumstances, authorize such a suit, we find the evidence in this case legally insufficient to show bad faith on the part of Boston Old Colony Insurance Company.

Brown and Gutierrez were involved in a head-on collision. Both men claimed that they had been travelling east and that the other’s car, headed west, crossed the center line of the highway and caused the collision. The officer who investigated at the scene concluded that Brown was responsible. Gutierrez brought an action against Brown for his injuries which action was defended by Brown’s liability insurance carrier, Boston Old Colony. Brown’s liability policy covered him up to a limit of $10,000.

In view of Brown’s version of the facts and some corroborating evidence, Boston Old Colony retained an accident reconstruction expert. The expert examined the accident site and the wrecked vehicles and concluded that Brown’s account was correct, that Gutierrez was west-bound and on the wrong side of the road at the point of impact.

Despite this favorable expert opinion evidence, Boston Old Colony’s adjustor knew there was a question of liability. He knew also that Gutierrez’s injuries were extensive and that there was a possibility of an excess judgment. He warned Brown of these matters and suggested an offer to settle for the policy limits. Brown was opposed to a settlement. He had counterclaimed against Gutierrez for his own injuries and apparently did not want to make the admission of fault implied by an offer to settle. So Boston Old Colony asked for, and Brown executed, a “hold harmless” agreement, in which Brown assumed responsibility for any excess judgment.

Before the trial, with the claim and the counterclaim pending, Gutierrez offered to take the policy limits in settlement of his claim against Brown. Boston Old Colony responded by denying liability. Subsequently, Brown reached a settlement of his counterclaim against Gutierrez and his insurer. With the counterclaim no longer pending, Boston Old Colony offered Gutierrez the policy limits in settlement. By this time, however, Gutierrez preferred to proceed to trial. The trial resulted in a judgment for Gutierrez against Brown for $1,400,000. Gutierrez then brought the present action against Boston Old Colony, alleging bad faith on the part of the insurance company because of its failure to settle the claim for policy limits when it had the opportunity. Gutierrez prevailed and obtained a judgment against Boston Old Colony for $1,400,000.

On appeal, Boston Old Colony argued that its motion for a directed verdict should have been granted since the evidence showed that Brown at all times contested liability and had evidence to support his position; that he requested that his insurer not settle the suit since he was pursuing his counterclaim against Gutierrez; and that after settlement of the counterclaim, Boston Old Colony offered the policy limits before trial. The district court affirmed, holding that there was sufficient evidence upon which a jury could base a verdict .of bad faith failure to settle.

Boston Old Colony contends that Gutierrez, the injured tort plaintiff, should not be allowed to bring this action directly against it for its alleged bad faith in failing to settle his claim against Brown, its insured. We previously rejected a similar contention in Thompson v. Commercial Union Ins. Co. of New York. The fact that such an action may be brought does not mean, however, that Gutierrez is entitled to an excess judgment. He must first establish by legally sufficient evidence that the insurance company acted in bad faith.

This brings us to Boston Old Colony’s second contention that there was no evidence sufficient to support the jury’s finding of liability for bad faith in not settling the claim. An insurer, in handling the defense of claims against its insured, has a duty to use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business. Auto Mutual Indemnity Co. v. Shaw, 134 Fla. 815, 184 So. 852 (1938). For when the insured has surrendered to the insurer all control over the handling of the claim, including all decisions with regard to litigation and settlement, then the insurer must assume a duty to exercise such control and make such decisions in good faith and with due regard for the interests of the insured. Liberty Mutual Ins. Co. v. Davis, 412 F.2d 475 (5th Cir. 1969). This good faith duty obligates the insurer to advise the insured of settlement opportunities, to advise as to the probable outcome of the litigation, to warn of the possibility of an excess judgment, and to advise the insured of any steps he might take to avoid same. Ging v. American Liberty Ins. Co., 423 F.2d 115 (5th Cir. 1970). The insurer must investigate the facts, give fair consideration to a settlement offer that is not unreasonable under the facts, and settle, if possible, where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so. Government Employees Ins. Co. v. Grounds, 311 So.2d 164 (Fla. 1st DCA 1975), cert. discharged, 332 So.2d 13 (Fla.1976); Government Employees Ins. Co. v. Campbell, 288 So.2d 513 (Fla. 1st DCA 1973), quashed, 306 So.2d 525 (Fla.1974); Baxter v. Royal Indemnity Co., 285 So.2d 652 (Fla. 1st DCA 1973), cert. discharged, 317 So.2d 725 (Fla.1975). Because the duty of good faith involves diligence and care in the investigation and evaluation of the claim against the insured, negligence is relevant to the question of good faith. American Fidelity and Casualty Co. v. Greyhound Corp., 258 F.2d 709 (5th Cir. 1958); DeLaune v. Liberty Mutual Ins. Co., 314 So.2d 601 (Fla. 4th DCA 1975). The question of failure to act in good faith with due regard for the interests of the insured is for the jury. Campbell v. Government Employees Ins. Co., 306 So.2d 525 (Fla.1974).

The evidence presented in the present case demonstrates that Boston Old Colony fulfilled all these obligations. We hold that under the facts of this case, Thompson does not require the result reached by the district court of appeal. There is no sufficient evidence from which any reasonable jury could have concluded that there was bad faith on the part of the insurer. The facts in Thompson are materially different from the facts now before us. In the present case, Brown, the insured, at all times contested liability and had evidence to support his position. Brown expressly requested Boston Old Colony not to settle the claim because he was pursuing a counterclaim against plaintiff Gutierrez. Brown executed a “hold harmless” agreement in which he assumed responsibility for any excess judgment. After settlement of Brown’s counterclaim, prior to trial, Boston Old Colony offered to settle for policy limits. Unlike Thompson, where the insurer refused to settle at all times despite advice of its own counsel, here the insurer was ready to settle, expressed its willingness to settle, and only because of the explicit request of its own insured did not settle. Furthermore, in the present case, unlike Thompson, the plaintiff refused to settle when the insurer subsequently offered to settle prior to trial.

By way of caveat, we point out that the “hold harmless” agreement in this case was not a determining factor in our decision. An insurer cannot escape liability for breach of the duty of good faith by acting upon what it considers to be its interest alone. An insurer with control over defense and settlement must at all times act in good faith, and it may not insulate itself from a bad faith excess judgment by simply obtaining a hold harmless agreement from its insured.

Accordingly, we hold that Boston Old Colony’s motion for a directed verdict should have been granted, and we quash the decision of the district court. This cause is remanded for further proceedings consistent herewith.

It is so ordered.

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

ALDERMAN, J., concurs specially with an opinion, with which McDONALD, J., concurs.

ADKINS and BOYD, JJ., dissent.

ALDERMAN, Justice,

concurring specialty-

I concur with the Court’s decision that the evidence in this case is insufficient to support the jury’s verdict.

I concur specially to express my dissatisfaction with the rule of law announced in Thompson v. Commercial Union Ins. Co. of New York, 250 So.2d 259 (Fla.1971). I believe an injured tort plaintiff should not be allowed to bring an action directly against a tortfeasor’s insurer for bad faith failure to settle a claim because, in my opinion, the insurer’s good faith duty to settle runs only to its insured. Merely because an injured party becomes a third party beneficiary under an insurance policy does not entitle that party to invoke all the provisions of the insurance contract or statutes which govern the rights and duties between insurer and insured. Wilder v. Wright, 278 So.2d 1 (Fla.1973).

In the “Alice-in-Wonderland” world created by the Thompson rule, it is to the injured party’s benefit if the insurer breaches its duty to its insured and to his detriment if there is no breach. This is so since, if the insurer settles, the plaintiff will receive no more than the policy limits, but if it does not, the plaintiff may end up with both the policy limits and an excess judgment.

Judge Carroll, in Canal Insurance Company of Greenville, South Carolina v. Sturgis, 114 So.2d 469 (Fla. 1st DCA 1959), aff’d, 122 So.2d 313 (Fla.1960), clearly perceived the illogic of allowing an injured third party to maintain a direct action against the insurer for failure to settle when he said:

No one can today question the legal right of the insured to sue the insurer for negligence or bad faith in failing to settle a claim within the policy limits for, if he has had to pay a part of the judgment, he has indeed suffered damages because of such failure of the insurer; but, when the judgment creditor directly so sues the insurer for an amount above such limits, a vastly different situation exists in the eyes of the law. The judgment creditor has not suffered because of the insurer’s failure, but has, if anything, gained thereby. The judgment creditor would be in an anomalous position, for typically he would be claiming damages for the insurer’s failure to settle the case for much less than the verdict he himself actually won.

114 So.2d at 471. Far from encouraging settlement of controversies, which Thompson said would result from a rule permitting direct suits, the Thompson rule induces a plaintiff, as in this case, not to settle.

McDONALD, J., concurs.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Ronald FATH, Respondent.
    No. 57918.
    Supreme Court of Florida.
    May 1, 1980.
    Rehearing Denied Sept. 10, 1980.
    Scott K. Tozian, Bar Counsel, Miami, and Anita F. Dahlquist, Asst. Staff Counsel, Tallahassee, for complainant.
    No appearance for respondent,
   PER CURIAM.

This disciplinary proceeding against Ronald Fath is before us upon complaint of The Florida Bar and report of the referee. No petition for review has been filed.

. , The referee has made the following fmd-ings 0f fact relative to Fath’s misconduct:

As to Count I
Respondent was hired in October, 1976 by Mr. Harry Ward to prosecute an uncontested divorce action. It was understood that he would institute the proceedings immediately. Mr. Ward paid him a total of $400.00 for his services. Mr. Ward repeatedly phoned to and visited Respondent’s office to urge action but Respondent did not have Mrs. Ward served with civil action summons until April 4, 1977, over five months after Mr. Ward had employed Respondent. The divorce was eventually obtained through a countér-claim filed by Mrs. Ward’s attorney. Mr. Ward demanded that Respondent refund the fees paid to him; however no refund was ever made by Respondent. Mrs. Ward’s attorney had to draft a property settlement agreement, although Mr. Ward had requested Respondent to prepare the property settlement agreement, but without results. Respondent claimed that he had made an effort to prepare the property settlement agreement. Mr. Ward’s detailed explanation of the work actually done by Respondent on the property settlement agreement apparently discredits the validity of Respondent’s explanation.
As to Count II
Respondent was retained in June, 1975 by Ms. Geordiana Cuevas for advice as to her legal rights arising from an automobile accident. He first sent her to a Dr. Vento, then to Dr. Cohen. On March 31, 1977 Ms. Cuevas received a check from an insurance company, in the amount of $877.00, with which to pay the doctors’ bills. She endorsed and delivered this check to Respondent’s office, so that he could pay the bills. Respondent placed the proceeds in his operating account, not a trust account. Respondent never paid the doctors, despite Ms. Cuevas’ repeated request that he do so. See also letter to Respondent from Ms. Cuevas. Respondent stated that he did not pay the doctors because he thought the funds received represented his fee. The testimony of Ms. Cuevas, as well as the statement offered by Respondent in mitigation of these charges, do not in the Referee’s opinion support the credibility of Respondent’s explanation.

The referee recommends that Fath be found guilty of Count I and explained:

I recommend that the Respondent be found guilty and specifically that he be found guilty of the following violations of his Oath as an attorney, the Integration Rules of The Florida Bar and Disciplinary Rules of the Code of Professional Responsibility, to wit:
Respondent neglected a legal matter entrusted to him in violation of DR 6-101(A)(3). Such handling of matters entrusted to him by clients appears to be his customary way of practicing law. This is supported and revealed by the Judicial Circuit Grievance Committee Report Finding Probable Cause. His explanations appear to the Referee as being not worthy of belief.

The referee also recommends that Fath be found guilty of Count II and specifically that he be found guilty of violating Florida Bar Code of Professional Responsibility, Disciplinary Rules 1-102(1), (4), (6), 6-101(A)(3), and 9-102(B)(4).

Because of this described misconduct and because of Fath's previous disciplinary record (The Florida Bar v. Fath, 368 So.2d 357 (Fla.1979)), the referee recommends that Fath be disbarred.

After review of the record and report of the referee, we approve the findings of the referee. We conclude, however, that disbarment is not the appropriate discipline.

Ronald Fath is hereby suspended from the practice of law for a period of two years from the date of this order. His reinstatement after such period will be conditioned upon proof of rehabilitation. Costs are assessed against the respondent in the amount of $674.80.

It is so ordered.

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

ENGLAND, C. J. and ALDERMAN, J., would approve the referee’s disbarment recommendation.


text:
    Ernest Charles DOWNS, Appellant, v. STATE of Florida, Appellee.
    No. 53524.
    Supreme Court of Florida.
    May 22, 1980.
    Rehearing Denied Sept. 12, 1980.

      Richard Lovett Brown, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Ernest Charles Downs was convicted of the murder in the first degree of Forrest Jerry Harris, Jr. The jury recommended that the death penalty be imposed, and, after weighing the aggravating and mitigating circumstances, the trial court imposed a sentence of death. Downs’ conviction and sentence of death are before this Court on direct appeal pursuant to article V, section 3(b)(1), Florida Constitution. Downs also appeals his conviction for conspiracy to commit first-degree murder. We have reviewed the record, considered the fifteen points raised on appeal, and have found no reversible error.

In April, 1977, John Barfield approached Downs with an offer of five thousand dollars if Downs would kill Harris. Downs accepted the contract to kill Harris and enlisted the assistance of Larry Johnson. On April 23, 1977, at Downs’ insistence, Johnson phoned Harris and identified himself as Joseph Green, from whom Harris was expecting a call, and told Harris that he wanted to talk to him about flying contraband. They arranged a meeting in Jacksonville. Downs drove down a dirt road and left Johnson there to await Downs’ return with Harris. Downs picked up Harris and drove to the location where he had left Johnson. Harris exited the car and approached Johnson at which time Downs shot Harris four times in the head with a .25 caliber automatic pistol. Together, Downs and Johnson dragged the body off the road into the bushes where Downs fired another shot into Harris’ chest to make sure that he was dead.

Downs argues that his conviction should be reversed because the trial court erred in allowing into evidence a diagram prepared by Johnson outside the courtroom, because he was denied due process by the prosecutor’s interruption of defense counsel during defense reply summation, because he was denied an impartial jury, because he was deprived of due process by not being allowed to videotape depositions, because his right to cross-examine a witness was curtailed, because he was deprived of his right to compulsory process for obtaining witnesses, because he was denied his fifth amendment right against self-incrimination, because he was denied due process by admission of a particular hypothetical question propounded by the prosecutor to the medical examiner, because the judge commented on the evidence, and because the evidence is insufficient to support the conviction.

For the most part, Downs’ points on appeal are completely without merit and do not require explication; however, his allegation that he was denied an impartial jury under the sixth and fourteenth amendments and contrary to the dictates of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), does warrant discussion. Downs contends that it was improper to excuse five jurors for cause who indicated an inability to vote for the death penalty but an ability to determine guilt.

The Supreme Court, in Witherspoon, held that a sentence of death cannot be carried out if the jury that imposed or recommended the death penalty was chosen by excluding veniremen for cause who voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction but who did not state that they would automatically vote against the imposition of such punishment. At Witherspoon’s trial, the prosecution eliminated almost half the prospective jurors because they expressed qualms about capital punishment. Only five out of the forty-seven jurors excused for cause in Wither-spoon stated that under no circumstances would they vote to impose the death penalty. The Supreme Court explained:

If the State had excluded only those prospective jurors who stated in advance of trial that they would not even consider returning a verdict of death, it could argue that the resulting jury was simply “neutral” with respect to penalty. But when it swept from the jury all who expressed conscientious or religious scruples against capital punishment and all who opposed it in principle, the State crossed the line of neutrality. In its quest for a jury capable of imposing the death penalty, the State produced a jury uncommonly willing to condemn a man to die.

391 U.S. at 520-521, 88 S.Ct. at 1776. The Supreme Court did not disturb the conviction but only held that under the circumstances the death sentence would not be carried out.

Although in Witherspoon the Supreme Court was not directly confronted with the question presented by Downs — whether a juror, who states that he is able to determine guilt in an unbiased manner but would never vote for the death penalty, may be excused by the State for cause — it did say:

We simply cannot conclude,- either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. In light of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction returned by a jury selected as this one was.

391 U.S. at 517-518, 88 S.Ct. at 1774-1775. Furthermore, the Court noted:

The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings.
We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or [emphasis supplied] (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt. Nor does the decision in this case affect the validity of any sentence other than one of death. Nor, finally, does today’s holding render invalid the conviction, as opposed to the sentence, in this or any other case.

391 U.S. at 523, n.21, 88 S.Ct. at 1777, n.21. See also Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

In Witt v. State, 342 So.2d 497 (Fla.1977), we applied Witherspoon and held that it is proper to exclude prospective jurors for cause who say that they could never vote to impose the death penalty.

The identical point presented by Downs was dealt with by the United States Court of Appeals, Fifth Circuit, in Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978), cert. den., 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979). Therein, two veniremen, excluded for cause, stated that they would automatically vote against imposition of the death penalty but that they could fairly judge defendant’s guilt or innocence. The Fifth Circuit found nothing constitutionally impermissible in the exclusion of these veniremen and reasoned:

But the state also enjoys the right to an impartial jury, Williams v. Wainwright, supra, 427 F.2d at 923, and impartiality requires not only freedom from jury bias against the accused and for the prosecution, but freedom from jury bias for the accused and against the prosecution. . Florida, however, has determined that even though a venireman states he can fairly judge guilt or innocence, if he also states that he is irrevocably committed before the trial has begun to vote against the penalty of death, regardless of the facts and circumstances that might emerge at trial, he must be excluded completely. The state has decided that the parties’ right under the Sixth and Fourteenth Amendments to an impartial trial and the state’s interest in the just and evenhanded application of its laws, including Florida’s death penalty statute, are too fundamental to risk a defendant-prone jury from the inclusion of such veniremen. The Constitution does not prohibit this judgment. . . The jury that emerges after excluding such veniremen, having been carefully examined to exclude also for cause those veniremen who are biased against the defendant, either as to guilt or as to punishment, is impartial. To call it prosecution-prone is to misunderstand the meaning of impartiality. .

578 F.2d at 596.

The jurors in the present case who were excluded stated that they could not, under any circumstances, vote to impose the death penalty after a verdict of guilty was returned. By stating that they were unwilling to consider all the penalties provided by law, they evidenced their inability to follow the law and were properly excluded by the trial court.

In addition to reviewing the record in light of the errors alleged by Downs, which we find to have no merit, we also have reviewed the record pursuant to Florida Rule of Appellate Procedure 9.140(f) to determine whether the interests of justice require a new trial and conclude that no new trial is required. Although defense counsel diligently tried to find weak points in the State’s case and to raise doubts as to the credibility of the State’s witnesses, the evidence of Downs’ guilt is overwhelming, and the jury could not have reasonably returned any other verdict. Downs received the full due process of the law and a fair trial free of any reversible error. Accordingly, we affirm the convictions.

We next consider Downs’ challenges to the imposition of the death penalty. The trial court, in a detailed sentencing order, stated:

MITIGATING ELEMENTS
A. WHETHER DEFENDANT HAS NO SIGNIFICANT HISTORY OF PRIOR CRIMINAL ACTIVITY.
Finding: This mitigating element is absent since the evidence shows that the defendant does have a significant history of prior criminal activity. The defendant, at age 16, was charged with robbery and attempted robbery resulting in three (3) years parole. On May 15, 1965 the defendant was sentenced for parole violation on the count of robbery first degree to ten (10) to twenty-one (21) years and on the attempted robbery first degree to five (5) to ten and one-half (IOV2) years. On February 14, 1968 the defendant in the United States District Court, Tulsa, Oklahoma, was sentenced to five (5) years for violation of the Dyer Act to be served consecutive to a state sentence of interstate transportation of stolen vehicle. On October 28, 1969 the defendant was sentenced to three (3) years in the Kansas State Industrial Reformatory on a charge of escape. The defendant was arrested December 23, 1976 on a worthless check charge and two (2) charges of failure to appear resulting in fines.
The defendant currently has two (2) pending felony charges of uttering a forged instrument and worthless checks.
B. WHETHER THE MURDER WAS COMMITTED WHILE THE DEFENDANT WAS UNDER THE INFLUENCE OF EXTREME MENTAL OR EMOTIONAL DISTURBANCE.
Finding: This mitigating element is not present. There is no evidence at all tending to show that the defendant was under the influence of an extreme mental or emotional disturbance. The report shows the defendant to be of above average intelligence, no use of intoxicating beverages or drugs and no indication of a mental or emotional disturbance.
C. WHETHER THE VICTIM WAS A PARTICIPANT IN THE DEFENDANT’S CONDUCT OR CONSENTED TO THE ACT.
Finding: This mitigating element is not present. There was evidence tending to show that the victim was contacted on a ruse that the victim’s services in flying illegal contraband or drugs for a payment of money was the reason that the victim was in the company of the defendant and Larry Johnson at the time of his death. The Court does not find this evidence to be conclusive, but accepting it for the purpose of determining the presence of this mitigating element, the Court would find that such conduct did not make the victim a participant in' his own murder nor show any consent by the victim to the murder.
D. WHETHER THE DEFENDANT WAS AN ACCOMPLICE IN THE MURDER COMMITTED BY ANOTHER PERSON AND HIS PARTICIPATION WAS RELATIVELY MINOR.
Finding: The mitigating element is not present. Testimony presented at trial shows that the defendant took the victim to an isolated area in Duval County and in cold blood shot and killed him with a .25 caliber pistol. After several shots to the head of the victim, the defendant placed the pistol at the head and chest and again pulled the trigger after the victim had fallen and appeared to be dead. The evidence is clear and convincing that the defendant was the actual perpetrator of the fatal shooting.
E. WHETHER THE DEFENDANT ACTED UNDER EXTREME DURESS OR UNDER THE SUBSTANTIAL DOMINATION OF ANOTHER PERSON.
Finding: This mitigating factor is not present in this case. There is no evidence at all tending to show that the defendant [acted] under extreme duress or under the substantial domination of another person.
F. WHETHER THE CAPACITY OF THE DEFENDANT TO APPRECIATE THE CRIMINALITY OF HIS CONDUCT OR TO CONFORM HIS CONDUCT TO THE REQUIREMENTS OF LAW WAS SUBSTANTIALLY IMPAIRED.
Finding: This mitigating factor is not present in this case. There is no evidence at all tending to show that the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.
G. THE AGE OF THE DEFENDANT AT THE TIME OF THE CRIME.
Finding: The defendant is twenty-nine (29) years of age and was the same age at the time of the offense, having been born August 11, 1948. The Court finds that this mitigating element is not present.
AGGRAVATING ELEMENTS
A. WHETHER THE MURDER WAS COMMITTED BY A PERSON UNDER SENTENCE OF IMPRISONMENT.
Finding: This aggravating element is not present in this case. There is no evidence tending to show that the defendant was under sentence of imprisonment when the murder was committed.
B. WHETHER THE DEFENDANT WAS PREVIOUSLY CONVICTED OF ANOTHER CAPITAL FELONY OR OF A FELONY INVOLVING THE USE OR THREAT OF VIOLENCE TO THE PERSON.
Finding: This aggravating element is present in this case. The defendant was convicted of robbery in the first degree and attempted robbery in the first degree in 1965. On January 14,1965 the defendant attempted to take money from the person of Mary Graves of Barnards Steak House in Sedgwick County, Kansas by putting the victim in fear and threatening violence to her person. On January 15, 1965 the defendant, by threat of violence to Henrietta Stathis of Stathis’ Liquor Store, did take money. The defendant was convicted of the charge of robbery and attempted robbery on February 24,1965. Both cases involved the display of a firearm.
C. WHETHER THE DEFENDANT KNOWINGLY CREATED A GREAT RISK OF DEATH TO MANY PERSONS.
Finding: This aggravating element is not present in this case. There is no evidence tending to show that the defendant knowingly created a great risk of death to many persons.
D. WHETHER THE MURDER WAS COMMITTED WHILE THE DEFENDANT WAS ENGAGED, OR WAS AN ACCOMPLICE, IN THE COMMISSION OF, OR AN ATTEMPT TO COMMIT, OR FLIGHT AFTER COMMITTING OR ATTEMPTING TO COMMIT, ANY ROBBERY, RAPE, ARSON, BURGLARY, KIDNAPPING, OR AIRCRAFT PIRACY OR THE UNLAWFUL THROWING, PLACING, OR DISCHARGING OF A DESTRUCTIVE DEVICE OR BOMB.
Finding: This aggravating element is not present in this case. The defendant took his wallet and identification but the court would not find that this murder was committed in the course of a robbery but that the taking of the property was an intricate part of the murder specifically providing the defendant with proof that the victim had, in fact, been killed.
E. WHETHER THE MURDER WAS COMMITTED FOR THE PURPOSE OF AVOIDING OR PREVENTING A LAWFUL ARREST OR EFFECTING AN ESCAPE FROM CUSTODY.
Finding: This aggravating factor is not present in this case. There is no evidence that the murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
F. WHETHER THE MURDER WAS COMMITTED FOR PECUNIARY GAIN.
Finding: This aggravating factor is present in this case. The defendant for $5,000.00 and in a manner calculated only to obtain pecuniary gain shot and killed the victim.
G. WHETHER THE MURDER WAS COMMITTED TO DISRUPT OR HINDER THE LAWFUL EXERCISE OF ANY GOVERNMENTAL FUNCTION OR THE ENFORCEMENT OF LAWS.
Finding: This aggravating circumstance is not present in this case. There is no evidence that the murder was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of law.
H. WHETHER THE MURDER WAS ESPECIALLY HEINOUS, ATROCIOUS, OR CRUEL.
Finding: This aggravating circumstance is not present in this case. It is the Court’s view that the shooting of the victim in this case was cruel, atrocious and unwarranted, not only in the actual killing but in disposing of the body and the taking of money from the deceased, but does not meet the legal status as defined by our Supreme Court in Cooper v. State, 336 So.2d 1133, 1140 (Fla.1976).
CONCLUSION OF THE COURT
The Court has carefully considered the aforesaid mitigating and aggravating elements and its findings with respect thereto, which findings are based upon those portions of the record in this cause previously delineated herein at pages one and two of this Judgment and Sentence. The Court concludes that there are sufficient aggravating circumstances which exist to justify the sentence of death. The Court further concludes that there are no mitigating circumstances, statutory or otherwise.

Downs argues that he was deprived of due process of law by a four-day delay and non-sequestering of the jury between the end of the guilt phase and the beginning of the penalty phase, that failure to instruct the jury during the sentencing phase that life imprisonment means a minimum of twenty-five years without parole denied him due process, that the death penalty statute violates the eighth and fourteenth amendments because it prevents the sentences from considering non-statutory mitigating circumstances, and that the death penalty was not appropriate in light of the fact that Johnson was given immunity.

Downs was not denied due process by holding the penalty phase four days subsequent to the guilty phase of the trial, nor by the non-sequestering of the jury during this time. Section 921.141, Florida Statutes (1977), provides that the penalty proceedings shall be conducted before the jury “as soon as practicable.” The jury verdict of guilty was returned at 10:20 Friday evening, and the court felt that it was unreasonable to commence penalty proceedings the next morning. Appellant’s counsel requested that the sentencing advisory hearing be held as soon as possible and further stated that if the hearing was to be held Monday or Tuesday, he would prefer Tuesday. The sentencing hearing was held as soon as practicable after the guilty verdict. Furthermore, the trial judge expressly directed the jury to avoid any outside influences. The defense has not alleged that the jury violated the judge’s directive. The trial court did not abuse its discretion in not sequestering the jury during this period of time between the guilty phase and the sentencing phase of the trial.

Downs’ argument that the exercise of prosecutorial discretion in granting Johnson immunity violated his constitutional rights and renders Florida’s death penalty statute unconstitutional is without merit. The Supreme Court of the United States, in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), rejected a similar argument. Justices Stewart, Powell, and Stevens, in their separate opinion, stated:

First, the petitioner focuses on the opportunities for discretionary action that are inherent in the processing of any murder case under Georgia law. He notes that the state prosecutor has unfettered authority to select those persons whom he wishes to prosecute for a capital offense and to plea bargain with them. Further, at the trial the jury may choose to convict a defendant of a lesser included offense rather than find him guilty of a crime punishable by death, even if the evidence would support a capital verdict. And finally, a defendant who is convicted and sentenced to die may have his sentence commuted by the Governor of the State and the Georgia Board of Pardons and Paroles.
The existence of these discretionary stages is not determinative of the issues before us. At each of these stages an actor in the criminal justice system makes a decision which may remove a defendant from consideration as a candidate for the death penalty. Furman, in contrast, dealt with the decision to impose the death sentence on a specific individual who had been convicted of a capital offense. Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution. Furman held only that, in order to minimize the risk that the death penalty would be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided by standards so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant.

428 U.S. at 199, 96 S.Ct. at 2937. Justice White, with whom Chief Justice Burger and Justice Rehnquist joined, said:

Petitioner’s argument that there is an unconstitutional amount of discretion in the system which separates those suspects who receive the death penalty from those who receive life imprisonment, a lesser penalty, or are acquitted or never charged, seems to be in final analysis an indictment of our entire system of justice. Petitioner has argued, in effect, that no matter how effective the death penalty may be as a punishment, government, created and run as it must be by humans, is inevitably incompetent to administer it. This cannot be accepted as a proposition of constitutional law. Imposition of the death penalty is surely an awesome responsibility for any system of justice and those who participate in it. Mistakes will be made and discrimina-tions will occur which will be difficult to explain. However, one of society’s most basic tasks is that of protecting the lives of its citizens and one of the most basic ways in which it achieves the task is through criminal laws against murder. I decline to interfere with the manner in which Georgia has chosen to enforce such laws on what is simply an assertion of lack of faith in the ability of the system of justice to operate in a fundamentally fair manner.

428 U.S. at 225-226, 96 S.Ct. at 2949. See also Proffitt v. Florida, 428 U.S. 242, 254, 96 S.Ct. 2960, 2967, 49 L.Ed.2d 913 (1976); Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978).

We find that the prosecutor’s exercise of discretion did not deprive Downs of his constitutional rights, and we hold that the death penalty is not inappropriate merely because Johnson did not receive the same sentence as Downs. The present case is distinguishable from Slater v. State, 316 So.2d 539 (Fla.1975), and is more analogous to Salvatore v. State, 366 So.2d 745 (Fla.1978), and Smith v. State, 365 So.2d 704 (Fla.1978).

The trial court, in Slater, imposed the death penalty upon Slater after a jury recommendation of life, while the triggerman of the robbery-murder was permitted to plead nolo contendere to the charge of first-degree murder and received a life sentence. Slater was an accomplice and did not have the murder weapon in his hand. The Slater jury recognized these circumstances when it recommended life imprisonment, and we held that imposition of the death sentence under the particular facts of that case would not constitute equal justice under the law.

In Salvatore v. State, the defendant contended that imposition of the death penalty in his case was unconstitutional because his co-defendant was not sentenced to death. The jury, in Salvatore, recommended that the death penalty be imposed. We held that the death sentence should not be reduced merely because the co-defendant did not also receive a death sentence, and we affirmed Salvatore’s sentence. We distinguished the facts in Salvatore from Slater and said:

The case sub judice is quite different. The defendant formulated the plan to kill the victim and was the actual perpetrator of the crime. Murren refused to hit the victim in the parking lot in accordance with the original plan. Also, Murren refused to hit the victim while he was in the office until after defendant had begun beating the victim with the pipe. The defendant, not Murren, beat the victim to death and Murren was responsible for the entire case being brought to light

366 So.2d at 752 (emphasis supplied).

The record in the present case establishes that Johnson and Downs were not equally situated and reveals that Downs accepted the contract to kill, formulated the scheme, solicited Johnson’s participation, and shot the victim, although Johnson had attempted to dissuade him from going through with the killing and even told Downs that he was not going to help him with the killing. Johnson testified that because he was fearful that Downs might shoot him, he went along with Downs, but again informed Downs that he was not going to kill Harris but Downs would have to do the killing himself. When Downs left Johnson with a machine gun, at the end of the dirt road to await Downs’ and Harris’ return, Johnson testified that he hid the gun under some boards because he had no intention of using it.

Later, while Downs was in Alabama, Johnson came forward and advised a detective for the Jacksonville sheriff’s department of the murder. He testified that he had not come forward before because he was afraid that Downs would take revenge on him or his family and because he feared he would be arrested for the murder. With Downs far removed in Alabama, he no longer feared Downs’ revenge. In response to Downs’ assertion that it possibly was unnecessary for the State to grant immunity to Johnson in order to make its case, the State asserts that the state attorney undoubtedly believed that it was necessary and that his statements to the judge and jury reveal his good faith belief that the granting of immunity in exchange for Johnson’s testimony and production of physical evidence was in the best interests of the State.

Johnson was responsible for the present case coming to light, and the jury was aware that Johnson had received immunity when it returned its advisory recommendation of death.

The remaining points raised by Downs relative to the imposition of the sentence of death are likewise without merit.

Accordingly, having found no reversible error, we affirm the judgments and sentences.

It is so ordered.

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


text:
    Robert M. McMILLAN, Appellant, v. STATE of Florida, Appellee.
    No. 58741.
    Supreme Court of Florida.
    May 22, 1980.
    Rehearing Denied Sept. 4, 1980.
    Thomas Presnell, Jr., Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Affirmed. See State v. Cain, 381 So.2d 1361 (Fla.1980).

It is so ordered.

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


text:
    THE FLORIDA BAR, Petitioner, v. CONSOLIDATED BUSINESS AND LEGAL FORMS, INC., etc., Respondent.
    No. 53702.
    Supreme Court of Florida.
    June 5, 1980.
    Rehearing Denied Sept. 3, 1980.
    Ronald R. Richmond, Chairman of the Standing Committee on Unauthorized Practice of Law, New Port Richey, Martin Errol Rice, Bar Counsel, St. Petersburg, and H. Glenn Boggs, Asst. Staff Counsel-UPL, Tallahassee, for The Florida Bar, petitioner.
    Stephen D. Hughes, Largo, for respondent.
   PER CURIAM.

Petitioner, The Florida Bar, filed a petition in this Court pursuant to article V, section 15, Florida Constitution, charging the respondent corporation, Consolidated Business and Legal Forms, Inc., with engaging in the unauthorized practice of law. We issued an order directing respondent to show cause why it should not be enjoined from the unauthorized practice of law. Subsequently, respondent filed a motion to dismiss which was denied by this Court. Circuit court Judge David F. Patterson, appointed by this Court as referee, conducted hearings in this matter and on June 26, 1979, filed his findings and recommendations with the Court. Because of the comprehensive manner in which the referee dealt with this cause, we set out in full his findings and recommendations:

This is a proceeding conducted pursuant to Integration Rule, Article XVI (III)(A)(4) wherein a final evidentiary hearing was held before the undersigned Referee on May 10, 1979. The question presented is whether or not the respondent is engaged in the unauthorized practice of law and should be enjoined from the continuing of its business as presently constituted. For the reasons stated below this question is answered in the affirmative.
The respondent is a Florida corporation for profit, now known as Consolidated Systems, Incorporated, engaged in the business of offering legal services through members of The Florida Bar who are its full time employees. The officers and stockholders of the respondent are non-lawyers with no legal training who supervise and control the day to day business of the corporation for the sole purpose of personal financial gain derived from providing legal services to individuals who have no other business relationship with the respondent to which such services are related. The practice therefore differs from businesses who maintain lawyers as full time employees primarily to further a course of business other than the practice of law.
Notwithstanding conflicts in the testimony, ' it is clear that the respondent, through its non lawyer officers, maintains a degree of control over the legal services it furnishes through its lawyer employees for the purpose of maintaining cost efficiency and profit. The manner in which the lawyer employees are compensated encourages the lawyer to conduct a high volume turnover of clients in order to increase his income. The use of standardized forms is encouraged or mandated and the lawyer’s time spent in court is organized to limit the time of his absence from the respondent’s office where one of the lawyer’s primary functions is new client intake. Some of the lawyers employed by the respondent have little or no prior experience in the practice of law and lack sufficient knowledge and experience to render some of the legal services which the respondent offers through media advertising. We find here the unique circumstance wherein the owners of a business are prohibited by law from rendering the services which they offer to the public (F.S. 454.23) are not competent by training to judge the quality of their product, are not subject to the licensing authority which regulates the distribution of their product and who purport to exercise no ultimate control over their primary employees. This concept, alien to the world of business, does greater violence to the accepted ideals of the professions, which must balance service to the public against the need to show a profit. There is no evidence that the respondent has made any attempt to balance the requirements of the Code of Professional Responsibility against its profit motives nor that the owners have the training or ability to make such an evaluation. To the contrary the respondent has established a pattern of conduct in the transferring of pending case files upon the resignation or discharge of an employee lawyer which evinces a disregard for the individual interest of the client. The evidence establishes injury to individual clients by reason of these practices. The petitioner cites many instances of control by lay officers of the corporation to establish that the respondent is engaged in the unauthorized practice of law and this Referee does find that the evidence supports no other conclusion. Assuming that these practices could be corrected by the respondent, would the respondent then be free of the charge of unauthorized practice? It is the finding of this Referee that this question must be answered in the negative. The respondent has shown no other means of producing income other than by the providing of legal services which is clearly the practice of law. Were the respondent to cease the providing of such services, then it would cease to exist as an income producing enterprise. The nature of the corporate business is such that it must be deemed to be engaged in the unauthorized practice of law with or without the examples of lay control which the evidence shows:

In addition to the foregoing the Referee finds:

1. The respondent is organized as a for profit corporation and has filed Articles of Incorporation with the secretary of state’s office. The respondent’s proper name has been changed, after the initiation of this litigation to CONSOLIDATED SYSTEMS, INCORPORATED.
2. The officers of the corporation are DESMOND JUDGE, President; DANIEL WARD, Vice President and SHEILA HARRIS, Secretary. None of these officers is now, nor has ever been licensed to practice law in Florida. None of them have had any legal training.
3. The respondent maintains offices in several Florida cities, including: Clear-water, St. Petersburg, Tampa, Jacksonville, Holiday, Fort Lauderdale, Alta-monte Springs and Sarasota.
4. The respondent employs persons to staff it offices who are licensed to practice law in Florida. Respondent pays these lawyer employees a salary plus a percentage of the gross fees received all fees paid by the clients are paid to the corporate employer. The respondent also employs lay persons to assist its lawyer employees in delivering legal services to the general public.
5. The respondent advertises to the general public that certain specified legal services may be obtained from its offices in exchange for a fee to be paid to the respondent.
6. Services offered by the respondent have included such legal work as: (1) uncontested dissolution of marriage (2) personal bankruptcy (3) change of name (4) simple wills and (5) uncontested adoptions. This list is not intended to be all inclusive and .the respondent may provide other legal services in addition to the foregoing.
7. The respondent through its lay employees establishes rules and policies normally reserved to a duly licensed practitioner such as:
a. the establishing of the amount of the fee to be charged for a specific service.
b. the limitation of client conference time per individual case.
c. the requirement that fees and costs be paid in full prior to the rendition of legal services.
d. the promulgating of legal forms to be used as part of the legal services rendered.
8. The respondent’s lay officers have access to the files and the work product generated by its lawyer employees on behalf of its customers.
9. The secretaries employed to assist the lawyer employees are employees of the respondent corporation and as such have access to the files and to the work product generated by lawyer employees.
10. The respondent directs and controls the activities of the secretaries of the lawyer employee including directing the secretaries in the procedure to answer telephones and deal with clients.
11. The respondent maintains bank accounts into which it deposits fees paid by clients, as well as escrow monies paid by clients. Both funds are deposited into the company’s general account without regard to the escrow status of the funds and at some interval during the week the funds are removed from the general account and deposited into the escrow account. One or more of the lay officers of the respondent have the authority to sign checks drawn on the escrow accounts which contain advance cost deposits paid by customers to be held in trust by the lawyer employees.
12. The respondent company terminates lawyer employees at will without regard to the transfer of files and directs the lawyer employees to sign substitution forms in blank on all files being handled by said lawyer employee, such is done without the consent or knowledge of the clients.
13. Upon the termination of a lawyer employee of the respondent, a new lawyer employee is hired who will take over as many as 100 open files without the consent of the client and without any contact or consultation with the client.
14. That upon the termination of a lawyer employee by the respondent, the respondent refuses to provide the clients the address, telephone number or other location of the lawyer they had previously dealt with.
15. The lay officers of the corporation have exerted a proprietary interest in the clients’ case files developed by the respondent’s lawyer employees.
16. The profit orientated manner in which the respondent’s business is operated by lay officers has resulted in injury or inadequate representation of respondent’s ■clients. Examples are:
a. A Mr. Paul Burgess received inadequate legal representation in a bankruptcy matter by reason of the inexperience of respondent’s employee lawyer and was required to incur delay, make numerous court appearances and suffer financial loss by reason of the necessity to engage additional counsel.
b. A Mr. Joe Valley was provided inadequate representation in a dissolution of marriage proceeding by reason of the inadequacy of respondent’s form pleadings and/or lack of proper attention to his case by respondent’s employee lawyer.
c.A Ms. Lynn Petros was denied adequate relief in the form of a.restraining order in a dissolution of marriage proceeding by reason of respondent’s monetary policy which prohibits the seeking of relief without prior payment in full.
17.The operation of the respondent’s business is inconsistent with intent of the Code of Professional Responsibility, gives rise to an inherent conflict of interest between the legal needs of the client and the monetary policy of the corporation, denies the clients of the respondent access to the Client Security Fund, allows unregulated lay persons access to trust monies and permits unlicensed and unregulated persons to profit from the providing of services which by law they are prohibited from providing.
CONCLUSIONS OF LAW AND RECOMMENDATIONS
The operation of the business of the respondent in the providing of legal services constitutes the unauthorized practice of law and that no modification of procedure by the respondent will allow the respondent to so engage in business lawfully.
It is the recommendation of the undersigned Referee that the respondent be permanently enjoined from the providing of legal services to the public.

Respondent filed exceptions to the foregoing findings and recommendations of the referee on the ground that the findings were not supported by substantial evidence. In a later filed brief, respondent asserts that even if the findings were supported by the evidence it is constitutionally impermissible to enjoin respondent’s conduct. Respondent cites as authority for this proposition United Transportation Union v. State Bar of Michigan, 401 U.S. 576, 91 S.Ct. 1076, 28 L.Ed.2d 339 (1971); United Mine Workers v. Illinois State Bar Ass’n, 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967); Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964); and NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).

After carefully reviewing the evidence, we approve and adopt the findings and recommendations of the referee. As we have stated on other occasions, this Court will not reverse the findings of a referee unless the findings are clearly erroneous or wholly lacking in evidentiary support. The Florida Bar, 323 So.2d 257 (Fla.1975), State ex rel. The Florida Bar v. Bennett, 246 So.2d 107 (Fla.1971), The Florida Bar v. Wagner, 212 So.2d 770 (Fla.1968). Respondent has failed totally to demonstrate that the findings of the referee are without support in the record, much less that they are clearly erroneous. The con-clusory statements made in the exceptions to the referee’s report are not supported by record reference. On the other hand, The Florida Bar directs us to specific pages in the transcript of the testimony which support the referee’s findings.

Respondent’s assertion that his conduct cannot be constitutionally proscribed is equally without merit. Each of the authorities relied on by respondent is bottomed on associational rights arising out of the first amendment to the United States Constitution. No such rights are involved here.

Synthesized, the report of the referee reflects the inherent danger of the intervention of lay persons or organizations in the attorney-client relationship. The actual practices of the respondent demonstrate vividly the conflict which inheres in such a relationship. The old admonition that “one cannot serve two masters” is borne out by this record. See Garcia v. Texas State Board of Medical Examiners, 384 F.Supp. 434 (W.D.Tex.1974); The Florida Bar v. Goodrich, 212 So.2d 764 (Fla.1968); State Bar Ass’n of Connecticut v. Connecticut Bank and Trust Co., 145 Conn. 222, 140 A.2d 863 (1958). Respondent’s assertion that the employment contract between the corporate employer and the individual attorney precludes any such intervention or conflict is plainly repudiated by the evidence in this case which demonstrates the actual manner in which the respondent delivers legal services.

Accordingly, the findings and recommendations of the referee are approved and adopted by this Court and the respondent is permanently enjoined from providing legal services to the public.

It is so ordered.

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

ALDERMAN, J., concurs specially with an opinion.

ALDERMAN, Justice,

concurring specially-

I concur that respondent is guilty of unauthorized practice of law and should be permanently enjoined from this unlawful activity. Additionally, I would remand this cause to the referee to consider the Bar’s request for assessment of costs and to recommend the amount of costs to be assessed, if any.


author: PER CURIAM. BOOTH, Judge,

text:
    CITY OF WINTER SPRINGS and Iowa National Mutual Insurance Company, Appellants, v. James LANE and United Accoustical and Roofing Company, Inc., and Aetna Insurance Company, Appellees.
    No. QQ-121.
    District Court of Appeal of Florida, First District.
    May 19, 1980.
    Rehearing Denied Aug. 18, 1980.
    Robert J. Felice, of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    James M. Hess, of Driscoll, Langston, Layton & Kane, P.A., Orlando, for appel-lees, United Accoustical and Roofing Company, Inc., and Aetna Insurance Co.
    Edward A. Nagel, Winter Park, for ap-pellee, James Lane.
   PER CURIAM.

The City of Winter Springs (the City) and its carrier appeal an order of the judge of industrial claims finding that claimant suffered a second and new injury in March 1977 entitling him to temporary total disability benefits and medical benefits from claimant’s second employer, the City. As to Point I, we find there is not substantial, competent evidence to support the finding that there was a new injury. Since Point I is dispositive of the issues raised by appellants, we do not discuss the other points raised.

Claimant suffered his first compensable accident in November 1975 while working for United Accoustical and Roofing Company, Inc. (United). At that time he sustained a laceration to the lower hip and a chest wall contusion. Approximately a month later a diagnosis was made of a chest contusion, a sprain of the lumbar area and cervical spine with pain radiating from the back down to the legs, and a mild concussion. The family doctor, Dr. Guzman, opined that the injury of March 1977 was an aggravation of the November 1975 accident. His testimony shows that from November 1975 until October 1976, Lane visited the doctor regularly, complaining of back and chest pain. On one occasion Lane bent over and couldn’t straighten up. On another occasion, May 1976, Lane reportedly re-hurt his upper back while working. On these visits the doctor often noted muscle spasm, but otherwise found no other objective findings. In January 1977 Lane went to work for the City. In February 1977, during Lane’s last visit before the March incident, he was told by Guzman that he’d reached maximum medical improvement and would have back pain off and on for the rest of his life. On March 15, 1977, Lane was treated for chest pains and anxiety hyperventilation. On March 21, 1977, Lane stated he had rehurt his back while picking up concrete slabs. Dr. Guzman told Lane he had just aggravated his old injury. Muscle spasm was again noted and Lane was given a corset to wear. Dr. Reckles, an orthopedic surgeon, saw claimant in October 1977 for evaluation pursuant to request of counsel and opined that the second injury was an exacerbation of the first injury.

Dr. Blumen, an orthopedic surgeon, saw Lane in April 1977 when he was hospitalized after the second injury. The history recited by Lane to Blumen reveals that Lane dated his injury to the November 1975 accident but that he returned to work with the City in January 1977. He worked without significant complaints until the shoveling incident. Lane reported that he experienced a tearing type of pain in his lower back and was not able to straighten up and that the pain persisted. He began having radiating pain to the lower right extremity, leading to the April 1977 hospitalization. Dr. Blumen was of the opinion that the vast majority of complaints were secondary to the accident of 1977, although he admitted there may have been some element of preexisting or contributing reason for the current complaints. In response to a question concerning whether the 1977 accident was new or a symptomatic worsening, Dr. Blumen testified that the history given to him and the symptoms described by Lane were compatible with an injury to the lower back in March 1977. None of Dr. Blumen’s examinations revealed muscle spasm. Dr. Urbach, an orthopedic surgeon practicing with Dr. Blumen, found no evidence of muscle spasm in his August 1976 examination.

Lane’s testimony was to the effect that when he went to work for the City he was in “pretty good shape.” But admittedly, he was not totally back to normal. For example, there were days he couldn’t stand to ride in a truck and he would lie down on the seat. He took pain pills and muscle relaxants, thus performing the same work as his co-workers. His supervisor corroborated his frequent complaints of continuing back problems. In early April 1977, or about that time, he was working on Fruitwood Avenue picking up concrete sections of a bridge that had been tom out. He went to pick up the slabs, bent over, and his back “went to catch and I couldn’t pick it up.” His back kept “catching” and it took him twice the normal time to pick up the slabs and load them onto the truck. He finished his job, and drove the truck, but later, his back hurt so badly that he told another worker to drive. He stated that in this second injury, the pain went up through his ribs whereas before it had gone down to his legs. He described the sensation as similar to the pains he had experienced before except that it was more up his back and now his back “would give” on him.

In addition to the conflicting medical opinions as to whether there was an aggravation or a new accident, Lane’s account of the facts as revealed in his depositions, at the hearing, and in histories given to the various doctors, leads to the inevitable conclusion that Lane was never fully recovered from his prior back injury but experienced back discomfort up to the time of the shoveling accident. Furthermore, the pain he experienced, although somewhat different, was similar to the pain he had experienced before. See Richard Perron Construction Co. v. Neiswonger, IRC Order 2-3417 (April 27, 1978), cert. denied, Cox Lumber Co. v. Neiswonger, 368 So.2d 1364 (Fla.1979) (no new accident where pain experienced was the same pain experienced numerous times before). It is apparent that the shoveling incident was not a new accident. There was no evidence showing that there was “an unexpected or unusual event or result, happening suddenly.” Martin Company v. Carpenter, 132 So.2d 400 (Fla.1961); Richard Perron Construction Co., supra. It is clear Lane had experienced similar pain in the past while performing his work. Also, there was no immediate incapacitating pain; rather, the pain gradually worsened throughout the afternoon until he finished his job, whereupon he told another worker to drive the truck. Contrast Overholser Construction Co. v. Porter, 173 So.2d 697 (Fla.1964), where the evidence supporting the finding of a new accident included immediate back pain which was so severe that the claimant had to cease working and involved a part of the anatomy different from that involved in the first accident.

Accordingly, under the facts of this case, we hold that there is not substantial, competent evidence consistent with reason and logic, as urged in Point I of appellants’ brief, to support the finding of a new accident. Thus, we reverse the order as to all parties and remand the cause with instructions for entry of a new order based upon new findings supported by the existing record and consistent with this opinion.

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

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting:

I dissent. Crews v. Town of Bay Harbor Islands, 378 So.2d 1265 (Fla. 1st DCA 1979).

ON MOTION FOR CLARIFICATION

PER CURIAM.

The finding of no permanent partial disability, not raised on appeal and not related to the basis for reversal, is unaffected by our opinion.

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

      . We do not think it was necessary for appellee Lane to file a cross-appeal against United to preserve a possible right of compensation against United and its carrier. From all that appears, United’s dismissal from the suit was dependent upon a finding that the City was liable for the claim. Injustice might result if we granted a reversal as to less than all parties. See generally General Portland Land Development Company v. Stevens, 356 So.2d 840 (Fla. 4th DCA 1978); 5B CJS Appeal and Error § 1919 (1958).


author: LARRY G. SMITH, Judge.

text:
    William Henry JONES, Appellant, v. STATE of Florida, Appellee.
    No. SS-250.
    District Court of Appeal of Florida, First District.
    June 5, 1980.
    Rehearing Denied July 28, 1980.
    Michael J. Minerva, Public Defender, Louis G. Carres, Asst. Public Defender, for appellant.
    Eugene T. Whitworth, State’s Atty., Jim Smith, Atty. Gen., A. S. Johnston, Asst. Atty. Gen., for appellee.
   LARRY G. SMITH, Judge.

Jones’s appeal questions the jurisdiction of the trial court to entertain any prosecution against him other than for the crime of grand theft, the crime which was the basis for the detainer by means of which Florida had him returned from Kentucky. He contends that the Florida Statute, Section 941.-45(5)(d) (1979), limits the jurisdiction of the trial court, so that, since he was returned to Florida only for the purpose of facing prosecution for grand theft, the trial court had no jurisdiction to revoke his probation and sentence him on a charge of uttering a forgery. We are compelled, under existing authorities, to hold that the statute, although couched in language which would seem to mandate the result sought by appellant, is nevertheless not jurisdictional.

As a general rule, the court’s jurisdiction over a defendant cannot be defeated because of the manner in which he was brought before the court. U. S. v. Lopez, 542 F.2d 283 (5th Cir. 1976); U. S. v. Lara, 539 F.2d 495 (5th Cir. 1976). These cases apply what is known as the “Ker-Frisbie Rule,” Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886), and Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952), which also has been followed by Florida’s Third District Court of Appeal in Hunter v. State, 174 So.2d 415 (Fla. 3rd DCA 1965). Hunter also cites Lascelles v. Georgia, 148 U.S. 537, 13 S.Ct. 687, 37 L.Ed. 549 (1893), in which petitioner, who had been returned to Georgia under extradition proceedings to stand trial on stated charges, was indicted by the grand jury for a new and distinct offense. In declaring that the trial upon the offense would not be contrary to the Constitution and extradition statutes, the court stated:

But it is settled by the decision of this court that, except in the case of a fugitive surrendered by a foreign government, there is nothing in the Constitution, treaties, or laws of the United States which exempts an offender, brought before the courts of a state for an offense against its laws, from trial and punishment, even though brought from another state by unlawful violence, or by abuse of legal process. . . . (citations omitted) (148 U.S. at 543,13 S.Ct. at 689).
* * * * * *
If a fugitive may be kidnapped or unlawfully abducted from the State or country of refuge, and be thereafter tried in the State to which he is forcibly carried, without violating any right or immunity secured to him by the Constitution and laws of the United States, it is difficult to understand upon what sound principle can be rested the denial of a State’s authority or jurisdiction to try him for another or different offense than that for which he was surrendered. If the fugitive be regarded as not lawfully within the limits of the State in respect to any other crime than the one on which his surrender was effected, still that fact does not defeat the jurisdiction of its courts to try him for other offenses, any more than if he had been brought within such jurisdiction forcibly, and without any legal process whatever. (148 U.S. at 545, 13 S.Ct. at 690).

Camp v. United States, 587 F.2d 397 (8th Cir. 1978), dealing with a provision of the Interstate Agreement on Detainers Act comparable to Florida’s Section 941.45(4)(e), held that the provisions of the act did not deprive the trial court of jurisdiction, stating that the interstate agreement on de-tainers amounts to nothing more than a statutory set of procedural rules which clearly do not rise to the level of constitutionally guaranteed rights; and that the sanctions contained therein have nothing to do with preserving a fair trial, but are instead intended only to prevent excessive interference with a prisoner’s rehabilitation in a state prison system.

The order, judgment and sentence are affirmed.

MILLS, C. J., and SHIVERS, J., concur.

      . Section 941.45(5)(d), Florida Statutes (1979), provides in part: “The temporary custody referred to in this Section shall be only for the purpose of permitting prosecution on the charge or charges contained in one or more untried indictments, informations, or complaints which form the basis of the detainer or for prosecution on any other charge or charges arising out of the same transaction. .

      . The facts in Camp v. United States, were that a state prisoner was taken into federal custody on a charge of robbing a United States Post Office, but was returned to state custody without first bringing him to trial on the federal charge, in contravention of the Act.


author: WENTWORTH, Judge. WENTWORTH, Judge.

text:
    Edward SOKOLSKY, Appellant, v. Audrey M. KUHN, f/k/a Audrey M. Sokolsky, Appellee.
    No. PP-118.
    District Court of Appeal of Florida, First District.
    June 9, 1980.
    Rehearing Denied Aug. 15, 1980.

      Edward Sokolsky, in pro. per.
    Tyrie A. Boyer of Boyer, Tanzler, Blackburn & Boyer, Jacksonville, for appellant.
    Elliot Zisser of Zisser, Robison & Spohrer, Jacksonville, for appellee.
   WENTWORTH, Judge.

Appellant seeks review of a judgment which established a foreign divorce decree as a Florida judgment, determined that appellant was in arrears in child support, and authorized garnishment of 25% of appellant’s wages, plus deposition costs. Appellant alleges, among other points, that garnishment was inappropriate since the children for whom the support was intended have reached the age of majority and no further support obligation exists. Appellant also alleges that deposition costs were improperly awarded and that the garnishment allowed exceeds the amount permissible.

Wages due for the personal labor or services of a person who is the head of a family residing in this state are generally exempt from garnishment. § 222.11, Florida Statutes. However, such monies may be garnished “to enforce the orders of the court of this state for alimony, suit money, or child support, or other orders in proceedings for dissolution, alimony, or child support . . . .” Hall v. Air Force Finance Center, 344 So.2d 1340 (Fla. 1st DCA 1977); § 61.12(1), Florida Statutes. Although the support arrearages owed in the present case were reduced to judgment at a time when the support obligation had terminated due to the children’s majority, § 61.12 is nevertheless applicable, and removes the § 222.11 garnishment exemption, since the proceeding remained essentially one for child support. This case is unlike Wilkes v. Revels, 245 So.2d 896 (Fla. 1st DCA 1970), cert. denied, 247 So.2d 437 (Fla.1971), which involved the “extraordinary remedy of contempt,” rather than the monetary remedy of garnishment. Appellant presents no other compelling reason or authority for construing the statute to make totally ineffective its stated exception to wage garnishment exemption whenever payment of child support obligations can be avoided for the period of minority.

Appellant filed a § 222.12, Florida Statutes, affidavit claiming the § 222.11 garnishment exemption, and alleges that since no controverting affidavit was filed the court was without authority to enter a judgment of garnishment. Miami Herald Publishing Co. v. Payne, 358 So.2d 541 (Fla.1978), is cited in support of his position. However, failure to file a controverting affidavit merely operates as an admission of the facts alleged in the § 222.12 affidavit, and neither § 222.12 nor Miami Herald precludes the court’s consideration of whether § 61.12 supersedes § 222.11 as a matter of law in these circumstances.

Although we conclude that garnishment was appropriate, we find that the court below erred in authorizing garnishment of 25% of wages which represent the appellant’s gross earnings. 15 U.S.C. § 1673 preempts any inconsistent provision in the state law and limits and permissible garnishment in this case to 25% of disposable earnings. Phillips v. General Finance Corp. of Florida, 297 So.2d 6 (Fla.1974). Although the garnishee’s answer did not indicate the amount of disposable (or after-taxes) earnings, the answer did clearly reveal that the stated amount of wages represented gross earnings, and the court below was obligated to conduct a further inquiry as to this issue, under its authority pursuant to § 77.07 and § 77.083, Florida Statutes.

Appellant has also presented other issues which we feel do not merit discussion and raise no points of reversible error, except insofar as the garnishment of deposition costs exceeds the 25% of disposable earnings limitation of 15 U.S.C. § 1678.

Accordingly, the order appealed is affirmed in part, reversed in part, and remanded for further proceedings.

McCORD and LARRY G. SMITH, JJ., concur.

ON PETITION FOR REHEARING

WENTWORTH, Judge.

Petitioner (appellant) correctly notes that the opinion in this case should reflect that appellee had obtained two judgments in Florida. The initial judgment established a foreign divorce decree as a Florida judgment and determined support arrear-ages. That judgment was not appealed. The appeal was from the subsequent judgment authorizing garnishment to collect the debt for support arrearages. Although the support arrearages had been reduced to a money judgment, our conclusion was that this fact did not alter the essential character of the order as one rendered in a proceeding determining child support arrearag-es. Garnishment is an appropriate remedy to enforce such an order. § 61.12(1), Florida Statutes. See also Schwarz v. Waddell (Fla. 4th DCA 1980), Case No. 79-1855, filed after this court’s decision herein and concluding contrary to our construction of § 222.12, Florida Statutes, in paragraph three of the opinion.

The petition for rehearing is denied.

McCORD and LARRY G. SMITH, JJ., concur.


author: SHAW, Judge. WENTWORTH, Judge,

text:
    Robert M. HARPER, Appellant, v. STATE of Florida, Appellee.
    No. MM-87.
    District Court of Appeal of Florida, First District.
    June 13, 1980.
    Rehearings Denied Aug. 19, 1980.

      Michael J. Minerva, Public Defender, Louis G. Carres and Margaret Good, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
   SHAW, Judge.

Harper, charged with robbery and first-degree murder of Earl Phillip Guy, was convicted of aggravated assault and third-degree murder during the commission of which he carried, displayed and used a firearm. He was adjudicated guilty and sentenced to thirty years imprisonment for the murder and given a five-year concurrent sentence for the aggravated assault.

On its face, third-degree murder is a felony of the second-degree punishable by imprisonment for a term not exceeding fifteen years. Section 775.082, Florida Statutes (1977). It is apparent that the trial judge took into consideration Harper’s use of a firearm to enhance the maximum sentence. The sole issue before us is whether Harper has been twice punished for the same offense. We conclude that the judge’s use of Florida’s enhancement statute, in this instance, resulted in double punishment for the same criminal act.

In charging the jury the judge defined aggravated assault, a lesser included offense of robbery, as follows:

As for the crime of aggravated assault, it is a crime for one person to commit an aggravated assault upon another. An aggravated assault is an assault upon another made with a deadly weapon but without an intent to kill.
An assault is an intentional unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so and doing some act which creates a well-founded fear in such other person that such violence is imminent.
The essential elements of this offense which must be proved beyond a reasonable doubt before there can be a conviction in this case are that: First, that Robert Harper did make an assault upon Earl Phillip Guy; and second, that the assault was made with a deadly weapon, and a deadly weapon, as I have indicated, is any weapon in which the manner in which it is used or threatened to be used is likely to produce death or great bodily harm.
Aggravated assault, which is a third degree felony, is punishable by imprisonment in the state penitentiary not exceeding five years or by fine not exceeding $5,000 or both fine and imprisonment or the Court may place the Defendant on probation.

We note that aggravated assault is also an assault with an intent to commit a felony. This charge, however, was not given to the jury. The conclusion is inescapable, therefore, that Harper’s use of a gun during the commission of the assault resulted in the aggravated assault conviction which in turn formed the basis for the felony murder.

The Supreme Court of Florida, in State v. Pinder, supra, held that where there was no evidence of premeditation upon which a jury could have based its verdict of guilty of first-degree murder the underlying felony was indispensable to the conviction. The defendant therefore could not be convicted of both first-degree murder and the felony which served as the basis for the murder conviction. Harper, like Pinder, was convicted of murder and the underlying felony upon which the murder conviction was based. Unlike Pinder, Harper chose not to appeal the multiple convictions, but chose only to attack the legality of the enhanced sentence on the ground that he was being twice punished for the same criminal act. Section 775.087(1), Florida Statutes provides that whenever a person is charged with a felony during the commission of which he displays, uses, threatens, or attempts to use any weapon or firearm, the felony for which he is charged shall be reclassified. The Legislature wisely carved out an exception, however, by providing that if the use of a weapon or firearm is an essential element of the felony charged, the felony shall not be reclassified. Harper seems to fall between the cracks, for use of a weapon or firearm is not necessarily an essential element of first-degree murder and § 775.021(4), Florida Statutes, which precludes separate sentencing for lesser included offenses, affords him little solace in that his enhanced sentence does not result from his conviction of a lesser included offense, but rather from his use of a gun in the perpetration of murder. Yet, absent use of the gun, he would not have been convicted of felony murder for which he was given fifteen years. Can the judge now enhance his sentence another fifteen years by revisiting his use of the gun? Pin-der appears to speak to this issue when it quotes, with approval, the argument that the Constitution was designed as much to prevent the criminal from being twice punished for the same offense as for being twice tried for it. The enhanced sentence in the case at bar results in impermissible multiple punishment for the same offense and falls within the constitutional prohibition against double jeopardy. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). See also Blockburger v. U. S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); and Johnson v. State, 366 So.2d 418 (Fla.1978). The enhanced sentence of fifteen years is accordingly vacated.

ROBERT P. SMITH, Jr., J., concurs.

WENTWORTH, J., specially concurs, with opinion.

WENTWORTH, Judge,

specially concurring.

I concur in the result reached by the majority for the reason that § 775.087(1), Florida Statutes, is expressly inapplicable when “the use of a weapon or firearm is an essential element” of the substantive offense. Although a weapon is not an essential element of the substantive offense of felony murder in all cases, it is an essential element of the felony murder offense charged and proved in this case. Appellant’s felony murder conviction was predicated upon the underlying felony of aggravated assault, established by proof of an assault with a firearm. § 784.021(l)(a), Florida Statutes. The use of a weapon or firearm is an essential element of § 784.-021(l)(a); such an aggravated assault is already an “enhanced penalty” offense, and § 775.087(1) may not be applied to enhance the sentence for a violation of § 784.-021(l)(a). Williams v. State, 358 So.2d 187 (Fla. 4th DCA 1978). Since it was necessary to prove such an aggravated assault in order to establish the felony murder in this case, the elements of § 784.021(l)(a) were thus essential to this felony murder conviction, and § 775.087(1) is therefore inapplicable.

Without deciding the constitutional issue presented, I note that § 775.087(1) does not create a separate offense, but merely enhances the penalty for the original crime, due to aggravating circumstances. I also note that this case involves but a single prosecution, rather than multiple prosecutions. Various federal decisions cast doubt upon the applicability of the double jeopardy clause in such circumstances. See, e. g., Whalen v. U. S., 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) (note 3, concurring opinion by J. Blackmun); Simpson v. U. S., 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978) (dissenting opinion); U. S. v. Rodriguez, 612 F.2d 906 (5th Cir. 1980). See also, Washington v. Mayo, 91 So.2d 621 (Fla.1957); Thorpe v. State, 377 So.2d 221 (Fla. 1st DCA 1979).

ON PETITIONS FOR REHEARING PER CURIAM.

The Court has considered Appellant’s motion for rehearing, Appellee’s petition for rehearing and Appellant’s response to Ap-pellee’s petition for rehearing.

In his notice of appeal, Harper indicated that the appeal was taken “to review the jury verdict . . wherein the defendant was convicted of the crime of THIRD DEGREE MURDER (COUNT I) and AGGRAVATED ASSAULT (COUNT II), and to review the sentence and adjudication of guilt . . . .” The propriety of the conviction and sentence for aggravated assault was not thereafter briefed or argued and this issue was therefore treated as abandoned and not properly submitted for this Court’s consideration.

Appellant’s motion and Appellee’s petition for rehearing are DENIED.

ROBERT P. SMITH, Jr., SHAW and WENTWORTH, JJ., concur.

      . The indictment, in separate Counts, charged the offenses of murder and robbery; two entirely different crimes, neither of which necessarily commands the use of a weapon or firearm as an essential element.
      § 812.13 Robbery.—
      (1) “Robbery” means the taking of money or other property which may be the subject of larceny from the person or custody of another by force, violence, assault, or putting in fear.
      § 782.04 Murder.—
      (l)(a) The unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any arson, sexual battery, robbery, . . . shall be murder
      in the first degree and shall constitute a capital felony, punishable as provided in s. 775.-082.

      . Harper does not appeal either conviction. Consequently the issue of whether he could be legally convicted, adjudicated guilty, and sentenced on both Counts is not before us. We note, however, that third-degree murder is defined as “The unlawful killing of a human being when perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than arson, sexual battery, robbery, . . ” The aggravated assault in the case at bar, was indispensable to Harper’s murder conviction, and was subject to challenge. State v. Pinder, 375 So.2d 836 (Fla.1979).

      .Sec. 775.087(1), Fla.Stat., provides:
      (1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows:
      (a) . . .
      (b) In the case of a felony of the second degree, to a felony of the first degree.
      A felony of the first degree carries a maximum thirty-year sentence. Sec. 775.082, Fla. Stat. (1977).

      . Sec. 784.021, Fla.Stat. (1977) reads in relevant part:
      (1) An “aggravated assault” is an assault:
      (a) With a deadly weapon without intent to kill; or
      (b) With an intent to commit a felony.

      . The State points out, and we agree, that third-degree murder can be committed and proven without resort to the felon’s use or display of a weapon or firearm. Such was not the case in the instant cause, however, where the jury has found the defendant innocent of all underlying felonies save aggravated assault accomplished by the use of a gun.

      . The indictment charged commission of first degree murder by facts on which the jury was instructed and returned a guilty verdict on a charge of felony murder, based only on proof of an underlying felony of aggravated assault with a firearm.


author: PER CURIAM. PER CURIAM.

text:
    Freddy GARRIDO, Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. UU-352.
    District Court of Appeal of Florida, First District.
    June 30, 1980.
    Rehearing Denied Aug. 18, 1980.

      Stephen Maher, Perrine, for appellant.
    George L. Waas, Tallahassee, for appel-lee.
   ON MOTION FOR SUMMARY REVERSAL AND/OR REMAND

PER CURIAM.

Garrido files this appeal of a final order of the Department of Health and Rehabilitative Services (HRS) denying his rulemak-ing petition to amend Florida Administrative Code Rule 10D^fl.25. The proposed amendment would have deleted from the rule the requirement that an applicant for licensure as a clinical laboratory technologist achieve a satisfactory grade on a U. S. Public Health Service-approved proficiency examination. In support of his petition Garrido alleged that the examination was no longer being given. He thus argued that the rule should be amended to reflect these changed circumstances, for a requirement to pass an examination which is never given is per se unreasonable. Garrido also requested the opportunity to present evidence in support of the petition. In its final order HRS concluded that the examination was still being given and summarily denied the petition without holding an evi-dentiary hearing. By his motion Garrido now seeks summary reversal and/or remand with directions that HRS take evidence on the allegations of the petition which it disputes.

We find that the validity of HRS’s action depends upon the disputed fact of whether the U. S. Public Health Service-approved examination is, indeed, still being given. We therefore remand under the authority of Section 120.68(6), Florida Statutes, for a fact-finding proceeding on this point. The Department shall then enter an order setting forth separate findings of fact and conclusions of law as dictated by Section 120.59, Florida Statutes.

Garrido’s Alternative Motion for Remand is hereby GRANTED.

McCORD, BOOTH and SHAW, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

On motion for rehearing, the Department seeks clarification as to whether it must hold a formal hearing under § 120.57(1), rather than an informal proceeding under § 120.57(2).

The only question of fact on the record before us is whether the requirement of Rule 10D-41.25 F.A.C., that the applicant take a U.S. Public Health Service approved proficiency exam, is obsolete because the exam is no longer given. If this issue can be resolved by agreement, then a § 120.-57(2) proceeding is appropriate to determine what rule amendment or rule making is required. If the factual issue cannot be resolved, however, a § 120.57(1) proceeding is required. In either event, the Department shall make specific findings supporting its action.

McCORD, BOOTH and SHAW, JJ., con-


author: DANIEL S. PEARSON, Judge.

text:
    Gwendolyn BARNES, Appellant, v. Dr. Patricia ROSS and the Ladies Center of South Florida, Inc., Appellees.
    No. 79-1028.
    District Court of Appeal of Florida, Third District.
    July 1, 1980.
    Rehearing Denied July 31, 1980.

      William N. Hutchinson, Jr., Fort Lauder-dale, for appellant.
    Lanza, Sevier & Womack, Coral Gables, for appellees.
    Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Gwendolyn Barnes’ personal injury action was dismissed by the trial court for lack of prosecution. This ruling of the trial court was made under the authority of Florida Rule of Civil Procedure 1.420(e), which provides;

“(e) Failure to Prosecute. All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed by the court on its own motion or on motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing, at least five days before the hearing on the motion, why the action should remain pending.

Barnes contends that she made the requisite showing of good cause and that dismissal of her action was error. We agree.

The year during which Barnes took no action expired on April 10, 1979. At the hearing on the defendants’ motion to dismiss, it indisputably appeared that Barnes’ attorney, a single practitioner, was seriously injured in an automobile accident on September 19, 1978; that the injuries required him to be hospitalized on two separate occasions for a total of five weeks; and that, as a result of the injury, he was unable to engage in the active practice of law for a period of four months.

Physical disability of a plaintiff or plaintiff’s attorney constitutes good cause justifying a trial court’s refusal to dismiss under Rule 1.420(e), Florida Rules of Civil Procedure. Eli Einbinder, Inc. v. Miami Crystal Ice Co., 317 So.2d 126 (Fla. 3d DCA 1975); Douglas v. Eiriksson, 347 So.2d 1074 (Fla. 1st DCA 1977); accord, Chrysler Leasing Corporation v. Passacantilli, 259 So.2d 1 (Fla.1972). See also Thorn v. Borough of Clearfield, 420 Pa. 584, 218 A.2d 298 (1966) (in which the court reversed a denial of a petition to open a judgment, stating “Appellants in this case should not be denied their day in court because of the diminished health of their counsel. Appellants had no way of knowing this case was not being diligently prosecuted and should not be made to suffer because of the health of their attorney.” 218 A.2d at 299).

The question we must address is whether the physical disability in the present case constitutes sufficient good cause justifying our overturning the trial court’s ruling that it does not. In light of the fact that a single record act is sufficient to defeat a motion to dismiss for lack of prosecution, it is clear that almost total inactivity is countenanced under the rule. See, e. g., Flack v. Kuhn, 277 So.2d 593 (Fla. 4th DCA 1973); Waldman v. Frankel, 343 So.2d 1325 (Fla. 3d DCA 1977); Hahn v. First National Bank of Delray Beach, 345 So.2d 345 (Fla. 4th DCA 1977). There appears to us no sound reason why the liberality a court accords to good cause should differ from the liberality a court accords to record activity. We hold that a disabling injury or illness which prevents a party’s attorney from engaging in a one-person law practice for one-third of the year during which an action is pending constitutes good cause to preclude dismissal under Rule 1.420(e), Florida Rules of Civil Procedure.

Reversed.

      , Barnes filed a notice of appeal from the trial court’s order granting the defendants’ motion to dismiss. Such an order is not final and not appealable. Donnell v. Industrial Fire & Casualty Company, 378 So.2d 1344 (Fla. 3d DCA 1980); Guth v. Howard, 362 So.2d 725 (Fla. 2d DCA 1978). We thereafter remanded the case to the trial court for the entry of an appropriate final order. The trial court’s order dismissing Barnes’ action has now been entered and the premature notice of appeal vests us with jurisdiction. Williams v. State, 324 So.2d 74 (Fla.1975); W. B. D., Inc. v. Howard Johnson Company, 382 So.2d 1323 (Fla. 1st DCA 1980).

      . Bames contends that she was given insufficient notice of the hearing preventing her from showing good cause in writing at least five days before the hearing, as the rule requires. It appears, however, that Barnes fully responded in writing and the trial court ruled on the merits. Accordingly, we need not consider this point. Industrial Trucks of Florida v. Gonzalez, 351 So.2d 744 (Fla. 3d DCA 1977).

      . Additionally, Bames attempted to show activity during the one-year period in the nature of unreturned phone calls by her attorney to defendant’s counsel. Since the rule’s amendment in January 1977, In re Florida Bar, Rules of Civil Procedure, 339 So.2d 626, 629 (Fla.1976), only activity on the face of the record will automatically preclude a dismissal for failure to prosecute. Non-record activity may, however, constitute good cause to avoid such a dismissal. American Eastern Corporation v. Henry Blanton, Inc., 382 So.2d 863 (Fla. 2d DCA 1980); F. M. C. Corporation v. Chatham, 368 So.2d 1307 (Fla. 4th DCA 1979). While it is doubtful that the non-record activity in the present case would constitute a compelling reason to avoid dismissal, we do not decide that issue.

      .Neither the length nor severity of the illness is stated in Einbinder. In Douglas, the extent of the medical problem of the plaintiff was undetermined and the length of the hospitalization unstated by the plaintiff. It has been said that a temporary illness will not satisfy the good cause requirement. See Grossman v. Segal, 270 So.2d 746 (Fla. 3d DCA 1972). The length of the temporary illness in Grossman is not stated. • However, it is clear from the opinion that the unnamed affliction did not occur until one day before the expiration of the one-year period. .The.rationale for this dictum in Grossman is that the one-year period by itself allows sufficient time for readjustment to a minor calamity. Apart from recognizing the general principle that illness and physical disability can constitute good cause, these decisions furnish little guidance to a trial court. The “presumption of correctness” which we are compelled to give to trial court decisions becomes a hollow phrase if, in the name of that presumption, we place our imprimatur on decisions which dismiss for lack of prosecution, and on decisions which do not, when the underlying “good cause for illness” showing may be stronger in the case of the dismissed action.

      . In fairness to the trial judge, we note that his decision was made within the vague parameters given to him by existing case law.


text:
    Rosella Futch MOPSICK, Appellant, v. William C. FUTCH, Appellee.
    No. 79-2308.
    District Court of Appeal of Florida, Second District.
    July 9, 1980.
    Rehearing Denied Aug. 20, 1980.
    H. Stephen Frank, Fort Myers, for appellant.
    Edward R. Miller, Naples, for appellee.
   PER CURIAM.

Affirmed on authority of Erhardt v. Erhardt, 362 So.2d 70 (Fla. 2d DCA 1978).

SCHEB, C. J., and GRIMES and CAMPBELL, JJ., concur.