text:
    STATE of Florida, Petitioner, v. Adelita Quejado GREEN, Respondent.
    No. 57398.
    Supreme Court of Florida.
    March 5, 1981.

      Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., Miami, for petitioner.
    Roy E. Black, Miami, for respondent.
    Talbot D’Alemberte and Donald M. Mid-dlebrooks, of Steel, Hector & Davis, Miami, for Post-Newsweek Stations, Florida, Inc., amicus curiae.
   OVERTON, Justice.

This is a petition for writ of certiorari from a decision of the Third District Court of Appeal, reported at 377 So.2d 193 (Fla.3d DCA 1979), in which it certified to this Court the following question to be of great public interest:

Whether a trial court is constitutionally required [under the due process clause of the Fourteenth Amendment to the United States Constitution and article I, section 9, of the Florida Constitution] to prohibit electronic media coverage of court proceedings in a criminal case upon a demonstration that such coverage would render an otherwise competent defendant incompetent to stand trial?

We have jurisdiction. Applying the facts of the instant case to the certified question, we approve the affirmative answer of the district court and hold that a trial court’s evidentiary finding that actual in-court electronic coverage would render an otherwise competent defendant incompetent to stand trial meets the requirements of the “qualitatively different” test set forth in In re Post-Newsweek Stations, Florida, Inc., 370 So.2d 764 (Fla.1979). This answer is also mandated by the principles expressed by the United States Supreme Court in Drope v. Missouri, 420 U.S 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). See Lane v. State, 388 So.2d 1022 (Fla. 1980).

The district court reversed and remanded the cause for a new trial based on three trial court errors: (1) the trial court’s failure to require a pretrial evidentiary hearing on respondent’s motion to exclude electronic media; (2) the trial court’s failure to enforce respondent’s subpoena duces tecum; and (3) the trial court’s exclusion of two of respondent’s impeachment witnesses.

We approve the district court decision and find points two and three were properly decided, do not concern the certified question, and necessitate no further discussion.

The relevant facts concerning the first issue, which is the basis of the certified question, are as follows. Respondent, an attorney, was charged with grand larceny for allegedly misappropriating client funds. After three court-appointed psychiatrists found respondent incompetent to stand trial, the trial court postponed the proceedings. Several months later, respondent was reexamined by the same three psychiatrists and found to be competent to stand trial, although each agreed that she continued to be mentally disturbed. After an evidentia-ry hearing on the issue, the trial judge found that respondent was indeed competent for trial and set a trial date.

Defense counsel thereafter moved for the exclusion of electronic media from the trial, asserting as grounds the history of respondent’s mental illness and, by affidavit, set forth the opinion of one of the court-appointed psychiatrists who allegedly had concluded:

[A]ppearance of the electronic media in this case would adversely affect the defendant. Her anxiety and depression will be heightened and actively interfere with her ability to defend herself and to communicate with counsel.

Defense counsel further stated:

That based upon his extensive contact with the defendant over a ten month period he has concluded that extensive media coverage of the trial will severely lessen defendant’s ability to properly defend herself. Up to a month ago this defendant was unable to actively assist in the preparation of her defense: she was totally apathetic, had no interest in discussing the details of the transactions involved, and continually expressed extreme depression concerning the future. Her condition is still very fragile; articles in newspapers, radio and television affect her greatly. The intrusion of cameras into the courtroom would paralyze her with apprehension and consequently prevent her from defending herself.

The motion also included the report of respondent’s treating psychiatrist who had concluded that the presence of electronic media in the courtroom would adversely impact respondent’s competency to stand trial. The trial court heard argument on the merits of the motion but refused to take any testimony on the issues presented. The motion was denied.

On appeal, the Third District Court correctly rejected respondent’s contention that she had an absolute constitutional right at her option to exclude electronic media coverage of the judicial proceedings, Chandler v. Florida, - U.S. -, 101 S.Ct. 802, 66 L.Ed.2d 740, 99 U.S.L.W. 4141 (1981); Post-Newsweek; but found that respondent’s motion to exclude electronic media alleged probable prejudice violative of constitutional due process standards sufficient to require an evidentiary hearing on the matter. The district court expressly found from the record:

Although the trial court adjudged the defendant competent to stand trial, no determination or inquiry was ever made by the trial court as to whether such competency would exist in the event the trial were televised.. . . [I]t was incumbent upon the trial court to conduct a full evidentiary hearing thereon which, at a minimum, should have included testimony or reports by the court-appointed psychiatrists as to the impact which electronic media coverage'of this trial would have on the defendant’s competency to stand trial.

377 So.2d at 200-01. The district court concluded that the trial court committed reversible error in refusing to provide an evidentiary hearing on this issue.

The issue in the instant case sharpens the focus on the discretionary authority given the trial judge to restrict electronic coverage as it applies to criminal defendants and other trial participants generally. We established the test for the trial judge to apply in Post-Newsweek:

The presiding judge may exclude electronic media coverage of a particular participant only upon a finding that such coverage will have a substantial effect upon the particular individual which would be qualitatively different from the effect on members of the public in general and such effect will be qualitatively different from coverage by other types of media.

Id. at 779. This “qualitatively different” test gives the trial judge definitive guidelines by which he is allowed to exclude electronic media from court proceedings. We note that the trial judges’ discretionary authority in this regard is analogous to the authority trial judges have traditionally applied in cases where special injury and special damages arise resulting from public disclosure of confidential informants, trade secrets, and details of child custody proceedings.

The instant test emphasizes that any general effect resulting from public notoriety of the case will not suffice to trigger electronic media exclusion. We realize that courtrooms are intimidating and that apprehension accompanies most individuals who must participate in a court proceeding. This, however, is not a product of electronic media’s presence. Courtrooms were intimidating long before the advent of electronic media. Trials with considerable public interest have always resulted in courtrooms full of spectators, news reporters, and sketch artists, all of whom add to the intimidation of the courtroom atmosphere. In our view, the single addition of the camera in the courtroom in these circumstances should not increase tension significantly, given the fact that electronic media will report the proceedings whether or not its camera is actually in the courtroom.

Wider dissemination of information concerning judicial proceedings is not a reason to exclude the camera from the courtroom. Local knowledge of the proceedings will be no greater proportionately with electronic media than when this country was primarily agrarian and commonplace court attendance resulted in widespread knowledge of courtroom proceedings. As our society has become more complex and urbanized, more citizens have become dependent on the media for courtroom knowledge rather than actual observation. The camera’s physical presence in the courtroom once again allows, to a limited extent, personal observation of the judicial process.

We determined in our Post-Newsweek decision that the presence of electronic media in and of itself was not prejudicial. In fact, answers to a questionnaire submitted to witnesses, jurors, and court personnel reflected that there was almost no difference in concern about the dissemination and publication of their trial participation by the print media as compared to its dissemination by the electronic media. We concluded that under these circumstances, citizens should not be denied this additional means to see their government in operation absent a truly overriding interest.

In Post-Newsweek we recognized certain examples which might meet the qualitatively different test: (a) witnesses who are undercover officers or confidential informants; (b) witnesses who, because of their prior testimony, have new identities; (c) witnesses who are presently incarcerated and have real fears of reprisal upon return to prison environment; (d) rape victims; and (e) child custody proceedings. These examples were not intended to be all-inclusive. The trial court’s discretion in applying the qualitatively different test controls. In his remarks addressing television coverage of trials, Journalism Professor Fred W. Friendly recognized the need for this discretionary authority by stating: “But not even the most zealous advocates suggest coverage of all trials in all courts. I doubt that any serious journalist would wish to invade the privacy of rape victims or most juveniles.” Friendly, On Judging the Judges, in State Courts: A Blueprint for the Future, 70, 75 (T. Fetter ed. 1978).

The procedural process which necessarily follows from the trial judge’s discretionary authority in applying the qualitatively different test requires an expeditious hearing in all cases where proper motions to exclude the electronic media are presented. A proper motion should set forth facts that, if proven, would justify the entry of a restrictive order. General assertions or allegations are insufficient. The trial court must allow the affected media to participate in the hearing although all parties must recognize that these proceedings are collateral and, as such, should not unnecessarily delay the main proceeding, particularly in criminal matters where the right to speedy trial may be adversely affected.

It should be recognized that the qualitatively different test has constitutional dimensions when applied to a criminal defendant because the constitutional right to fair trial is at issue. Given this factor, a different quantum of proof applies to a criminal defendant as compared to all other trial participants. The general trial participant must clearly show some special and identifiable injury from the presence of the camera and electronic media under the test. However, the criminal defendant has a twofold opportunity to either show that there is a reasonable and substantial likelihood that an identifiable prejudice to the right of fair trial will result from the presence of electronic media under the test or the same special or identifiable injury as other trial participants. In all instances, a showing must be made that the prejudice or the special injury resulted solely from the presence of electronic media in the courtroom in a manner which is qualitatively different from that caused by traditional media coverage.

In the instant case, this criminal defendant’s right to fair trial was at issue because defense counsel had properly raised respondent’s competency to stand trial as well as asserting that respondent met the qualitatively different test. Competency is an extremely sensitive area of the criminal law which the United States Supreme Court and this Court have discussed at length. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Lane v. State, 388 So.2d 1022 (Fla.1980). The United States Supreme Court and this Court have made it clear that the trial judge has the responsibility of conducting an eviden-tiary hearing on a defendant’s competency to stand trial whenever any reasonable indication of incompetency arises, whether or not trial counsel requests such a hearing. Under the facts of this cause, respondent had previously been found incompetent to stand trial. Treatment subsequently rendered her competent to proceed with the cause. The motion to exclude electronic media asserted under oath that defense counsel would produce psychiatric testimony at an evidentiary hearing which would establish that the presence of electronic media would adversely affect respondent’s ability to communicate with her counsel and cause her to lapse back into psychosis. Under these facts, the trial judge was required by Drope and Lane to have an evidentiary hearing on the competency issue, which by the circumstances would also allow an application of the qualitatively different test.

The procedure determining whether the qualitatively different test applies, while requiring a hearing, may not necessarily require an evidentiary one. In our opinion, the trial court in many instances could have a hearing and make a decision on the basis of affidavits after all parties have had an opportunity to be heard. In the instant case, however, the competency issue mandated an evidentiary hearing. The trial judge erred in not allowing one.

One further matter should be mentioned. By establishing the standards for camera placement in the courtroom in Post-Newsweek, we contemplated that the chief judges of each circuit would place the cameras in locations which would allow coverage but at the same time not interfere or disrupt the conduct of the trial. Cameras should not be situated so that they interfere with the proceeding or with any of the trial participants or their activities, especially defense counsel-defendant conferences in criminal trials. In some instances, small courtrooms may not be suitable for camera coverage. This may require the chief judge to reschedule the proceeding in a larger available courtroom to ensure electronic media’s noninterference. We have been impressed with the responsibility of the media, the trial judiciary, and the legal profession in providing electronic media trial coverage to the public without disruption of the proceedings. We hope that they will continue to reasonably and responsibly address the unique problems which arise by reason of electronic media coverage.

In conclusion, we note that in a free democratic society openness has historically been necessary for judicial credibility. The presumption of openness in our courts is basic and essential to assure free citizens that no inside or outside manipulations influence the judicial process. The United States Supreme Court recognized this factor in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 2825, 65 L.Ed.2d 973 (1980), in which Chief Justice Burger stated: “From this unbroken, un-contradicted history, supported by reasons as valid today as in centuries past, we are bound to conclude that a presumption of openness inures in the very nature of a criminal trial under our system of justice.”

The certified question is answered in the affirmative. We approve the excellent opinion of Judge Hubbart applying our decision in Post-Newsweek to the instant facts and also approve the disposition of the other issues in the cause. The guidelines expressed in this opinion should assist in proper and justifiable use of electronic media in the courtroom. Accordingly, we remand this cause to the trial court for a new trial.

It is so ordered.

SUNDBERG, C. J., and BOYD, ALDERMAN and McDONALD, JJ., concur.

ADKINS, J., concurs in result only.

ENGLAND, J., did not participate in the consideration of this case.

      . Art. V, § 3(b)(3), Fla.Const. (1972).

      . In Post-Newsweek, we held that electronic media courtroom coverage did not per se violate due process standards under the United States Constitution. That holding has recently been approved. Chandler v. Florida,-U.S. -, 101 S.Ct. 802, 66 L.Ed.2d 740 (1981).

      . The following questions and responses are excerpted from the Court’s trial participant survey conducted after the pilot program initially allowing electronic media access to Florida courts. See Post-Newsweek, 370 So.2d at 767.
      27. To what extent did knowing that the proceedings may be televised affect your desire to participate in the trial?
      Juror
      1. Not at all 86.1%
      2. Slightly 5.9%
      3. Moderately 2.8%
      4. Very 2.8%
      5. Extremely 2.4%
      average response 1.3
      Witness
      1. Not at all 73.2%
      2. Slightly 10.4%
      3. Moderately 4.6%
      4. Very 5.7%
      5. Extremely 6.2%
      average response 1.63
      Court Personnel
      1. Not at all 80.4%
      2. Slightly 9.3%
      3. Moderately 6.5%
      4. Very 1.9%
      5. Extremely 1.9%
      average response 1.35
      Attorney
      1. Not at all <o W
      2. Slightly O «
      3. Moderately lO H
      4. Very ^ ’t
      5. Extremely CO
      average response 1.74
      30. To what extent did knowing that the proceedings may receive newspaper coverage affect your desire to participate in the trial?
      Juror
      1. Not at all (O t*-’ 00
      2. Slightly N CD
      3. Moderately IO
      4. Very N
      5. Extremely ^
      average response
      Witness
      78.3% 1. Not at all
      8.4% 2. Slightly
      5.7% 3. Moderately
      3.2% 4. Very
      4.4% 5. Extremely
      1.5 average response
      Court Personnel
      1. Not at all 00 Ci H-
      2. Slightly Ci ÜI
      3. Moderately Ci

      4. Very CD
      5. Extremely <D
      average response ►-* to
      Attorney
      1. Not at all <35 w CO
      2. Slightly cn CO
      3. Moderately co CO
      4. Very co CO
      5. Extremely to
      average response ►— Ci


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Gordon Corbett BROCK, Petitioner, v. STATE of Florida, Respondent.
    No. 57718.
    Supreme Court of Florida.
    March 5, 1981.
    James K. Jenkins of Stroup, Goldstein, Jenkins & Pritzker, Atlanta, Ga. and William R. Slaughter, II of Slaughter & Slaughter, Live Oak, for petitioner.
    Jim Smith, Atty. Gen., and A. S. Johnston and Miguel A. Olivella, Jr., Asst. Attys. Gen., Tallahassee, for respondent.
   PER CURIAM.

The writ of certiorari is discharged. See Gluesenkamp v. State, 391 So.2d 192 (Fla. 1980).

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

SUNDBERG, C. J., dissents.


author: ADKINS, Justice.

text:
    WAKULLA COUNTY, Appellant, v. Clifford L. DAVIS, and Philip J. Padovano, Appellees.
    No. 58421.
    Supreme Court of Florida.
    March 5, 1981.
    Ronald L. Baker, County Atty. and Joseph S. Geller, Crawfordville, for appellant.
    Clifford Davis and Philip J. Padovano, in pro. per.
    Michael Egan of Roberts & Egan, for State Ass’n of County Com’rs of Florida, Inc., Tallahassee, amicus curiae.
    Steven L. Seliger of Gen. Counsel, Quincy, for Florida Clearinghouse on Criminal Justice, Inc., amicus curiae.
    Howard B. Eisenberg, Richard J. Wilson, Malcolm Young and Jack J. Schmerling, Washington, D. C., Nat. Legal Aid and Defender Ass’n, amicus curiae.

      H. Clyde Hobby of McClain & Hobby, for Pasco County Bar Ass’n, Dade City, amicus curiae.
   ADKINS, Justice.

This is an appeal from an order entered by the Circuit Court of Wakulla County specifically passing upon the constitutionality of section 925.036, Florida Statutes (Supp.1978). We have jurisdiction. Art. V, § 3(bXl), Fla.Const.

Appellees Clifford Davis and Philip Pado-vano were appointed Special Assistant Public Defenders to represent Johnny Copeland and Frank Smith, respectively. Both defendants were charged with first-degree murder, robbery with a firearm, kidnapping and involuntary sexual battery. Following the convictions of Copeland and Smith, each appellee filed a motion for costs and attorneys fees; Davis requesting $5,891.84, and Padovano requesting $7,372.00. Fees were computed by applying court-adopted hourly compensation rates to the time spent on the cases. Appellant Wakulla County opposed the award of fees computed in this manner to the extent that the fees exceeded the $2,500 cap allegedly imposed by section 925.036, Florida Statutes, for capital cases represented at the trial level. Appellee Pa-dovano asserted that the maximum fees payable to appointed counsel under section 925.036 can be “stacked” in cases involving multiple counts; yielding an $8,500 maximum in his case (three life felonies at $2,000 each plus one capital case at $2,500). Appellee Davis adopted this “stacking” theory and alternatively asserted that section 925.036 is unconstitutional as applied in his situation and on its face. In its order of compensation the Circuit Court of the Second Judicial Circuit in and for Wakulla County awarded the appellees the requested compensation and construed section 925.036 to allow “stacking” of the statutory fee máximums. Additionally, the court found the statute unconstitutional on its face and as applied to the appellees.

In interpreting section 925.036, Florida Statutes, to allow stacking, the trial court stated:

It is expressly interpreted by this Court that when the State elects to file more than one count in an indictment or information the Statute provides for a cumulative maximum fee comprised of the sum of the maximum fees for each count. To interpret otherwise could lead to an unfair result of an attorney having to represent a client on numerous cases within one proceeding and only be entitled to a maximum mandated by the most serious crime charged.

For the reasons set forth below, we affirm those parts of the trial court’s decision holding that the fee limits of section 925.-036, Florida Statutes, may be stacked and awarding the appellees the requested compensation.

Section 925.036, Florida Statutes, provides as follows:

Appointed counsel; compensation. — An attorney appointed pursuant to s. 925.035 or s. 27.53 shall, at the conclusion of the representation, be compensated at an hourly rate fixed by the chief judge or senior judge of the circuit in an amount not to exceed the prevailing hourly rate for similar representation rendered in the circuit. Such attorney shall be reimbursed for expenses reasonably incurred, including the costs of transcripts authorized by the court. The compensation for representation shall not exceed the following per case per defendant:
(1) For misdemeanors and juveniles represented at the trial level: $500.
(2) For noncapital, nonlife felonies represented at the trial level: $1,500.
(3) For life felonies represented at the trial level: $2,000.
(4) For capital cases represented at the trial level: $2,500.
(5) For representation on appeal: $1,000.

The statute itself does not indicate whether stacking is to be allowed. It simply provides that compensation for representation in various types of cases is not to exceed the limits established “per case per defendant.” The wording of the statute leaves it open to either of two interpretations; that “per case” allows the attorney compensation for each charged offense on which he represented the defendant, or, that “per case” limits the attorney to the maximum fee allowed for the most serious charge on which he defended his client, regardless of the number of offenses joined for trial. Because of this ambiguity, we must apply the rules of statutory construction to determine whether fees may be stacked. “In statutory construction legislative intent is the pole star by which we must be guided, and this intent must be given effect even though it may appear to contradict the strict letter of the statute and well-settled canons of construction.” State v. Sullivan, 95 Fla. 191, 207, 116 So. 255, 261 (1928). In determining our pole star, legislative intent, we are not to analyze the statute in question by itself, as if in a vacuum; we must also account for other variables. Thus, it is an accepted maxim of statutory construction that a law should be construed together and in harmony with any other statute relating to the same purpose, even though the statutes were not enacted at the same time. Garner v. Ward, 251 So.2d 252 (Fla.1971). We have in this case, another section within the same statute which must be harmonized with section 925.036, Florida Statutes.

Section 925.035, Florida Statutes (1977), provides:

If the court determines that the defendant in a capital case is insolvent and desires counsel, it shall appoint an attorney to represent the defendant. If the court appoints an attorney other than the public defender, the attorney shall be allowed reasonable compensation for representing the defendant, as determined by the court.

(Emphasis supplied.) The potential for conflict between the two sections is evident. One sets limits on the fees which may be awarded, while the other requires reasonable compensation. In establishing limits on the fees which can be paid court-appointed attorneys per case per defendant, the legislature clearly intended to limit the burden which such representation places on public treasuries and to provide guidelines for courts to follow. Conceivably, in the absence of any kind of limitation on fees, a small county with limited resources could be placed in serious financial difficulties. Section 925.036, Florida Statutes, was intended to decrease the likelihood of such an occurrence.

Section 925.035, Florida Statutes, on the other hand, seeks to insure that counsel is made available to those charged with a capital offense who otherwise could not afford to hire an attorney and that the attorney appointed is reasonably compensated for his services. The conflict between sections 925.035 and 925.036 arises when “reasonable compensation” exceeds the limits imposed by section 925.036.

If chapter 925, Florida Statutes, is construed to prohibit stacking of fees and the appellees here are limited to a fee not to exceed $2,500, neither will receive the “reasonable compensation” required by section 925.035, Florida Statutes, for their services as court-appointed counsel. Thus, such an interpretation conflicts with the provisions of section 925.035. Alternatively, section 925.036 may be interpreted to allow stacking. If it is so construed, the appellees can be awarded the amount established by the trial court as reasonable compensation for their services, and yet still be within the limits of section 925.036. There would be no conflict with the provisions of any section of the statute.

Clearly, given the choice, the proper interpretation of this statute is the one permitting stacking. “[Cjourts, in construing a statute, must, if possible, avoid such construction as will place a particular statute in conflict with other apparently effective statutes covering the same general field.” Howarth v. City of DeLand, 117 Fla. 692, 701, 158 So. 294, 298 (1934). “[Wjhere two statutes operate on the same subject without positive inconsistency or repugnancy, courts must construe them so as to preserve the force of both without destroying their evident intent, if possible.” Mann v. Goodyear Tire and Rubber Company, 300 So.2d 666, 668 (Fla.1974). By construing chapter 925 to allow stacking, a potential conflict between two sections thereof will be avoided and any inconsistency will be resolved. Any other construction would exacerbate the problem, and be improper.

An interpretation allowing stacking is also compelled by the rule of statutory construction which provides that when the meaning of a statute is at all doubtful, the law favors a rational, sensible construction. Realty Bond & Share Co. v. Englar, 104 Fla. 329,143 So. 152 (1932). Courts are to avoid an interpretation of a statute which would produce unreasonable consequences. Id.

If stacking is not permitted, the result could be quite unfair and unreasonable to the court-appointed attorney. He might be forced to defend a client on multiple non-life felonies, and life felonies joined with a capital case, spend a large amount of time thereon, and still be limited to $2,500 in compensation for his services, as in this case. It is illogical to construe the law so that regardless of the number of charges on which a client is defended, his attorney is limited to a $2,500 fee. It is also illogical to construe the law in such a manner as to completely nullify the $2,000 maximum for life felonies simply because that offense is joined in the same prosecution with a separately punishable capital felony. Such is the case here. It would be much more reasonable and just to allow the attorney to stack the máximums for each offense for which his client was tried. Under that interpretation, the attorney would be more realistically and fairly compensated for the time spent on the case, and less likely forced to accept what might often turn out to be unfair compensation for his representation. At the same time, such an interpretation would still provide counties protection from exorbitant, limitless legal fees. Guidelines and máximums would not be abolished; they would simply be more realistic and equitable.

Given the differing interpretations of chapter 925, the proper one is that which allows stacking. It is the only construction which preserves and promotes the legislative goal of protecting county treasuries and providing guidelines for courts without impairing the section of the statute requiring reasonable compensation for court-appointed attorneys. It leads to more reasonable, sensible results. It is proper under the rules of statutory construction. For those reasons, we affirm that part of the circuit court’s decision holding that the fee limits of section 925.036, Florida Statutes, may be stacked and awarding the appellees the requested compensation.

The court in Dade County v. Goldstein, 384 So.2d 183, 188-89, (Fla.3d DCA 1980), interpreted section 925.036, Florida Statutes (1979), as follows:

By its plain terms, this statute provides that an attorney appointed under Section 27.53, Florida Statutes (1979), shall be compensated exclusively at an hourly rate to be fixed by the chief judge or the senior judge of the circuit in an amount not to exceed the prevailing hourly rate for similar representation rendered in the circuit. As such, the trial court by implication must find, based on a proper showing, that the appointed attorney reasonably expended a certain amount of hours in representing the indigent client, and, thereafter, compute the fee due based on the above established hourly rate. The statute provides no other method by which a fee may be computed, as for instance, taking into consideration the nature of the services rendered, the responsibility incurred, the skill required, the circumstances under which it was gendered, the value of the services to the client, and the beneficial results, if any, of the services. See Pfohl v. Pfohl, 345 So.2d 371, 379 (Fla.3d DCA 1977). Under the above statute, the exclusive method of compensating counsel is computed solely on the above hourly basis.
Regardless of the reasonable number of hours expended by counsel, the above statute further provides that in no event shall the fee award exceed the following maximum amounts per defendant per case, to wit: $2,500 per capital felony case, $2,000 per life felony case, $1,500 per noncapital, nonlife felony case, $500 per misdemeanor case. In our view, a case as so used by the statute must be considered a count charging an alleged crime in an indictment or information as applied to an adult criminal trial. Any other interpretation makes little sense, for example, when we deal with a multi-count indictment or information charging various types of felonies [which may include capital, life, and first, second or third degree felonies], as well as misdemeanors, one can only logically categorize each count as a capital case, a life felony case, a noncapital, nonlife felony case, and a misdemeanor case depending on the crime charged therein. We reject Dade County’s contention that a case should be construed as an indictment or information no matter how many or what kinds of counts or charges are contained therein, because it would be logically impossible to determine thereafter what type of case it was as each count may charge, as here, significantly different crimes. The only logical way of interpreting the statute, in our view, is to consider each count as a separate case and catagorize the case according to the crime charged in the count. Moreover, it makes no sense and is patently unfair to compensate an attorney who represents an insolvent defendant on a one-count indictment or information on the same basis as an attorney who represents an insolvent defendant on a multi-count indictment or information; the amount of work expended in defense of the two types of indictments or infor-mations is frequently different as the multi-count indictment or information necessarily exposes the defendant to a much greater criminal liability. In short, any other construction of the statute, other than the one we reach herein, would yield an illogical and unreasonable result which we are constrained by law to avoid. Thomas v. State, 317 So.2d 450 (Fla.3d DCA 1975).

We approve this reasoning.

Having resolved the matter on that basis, we need not, and do not, rule on the constitutionality of the statute. Williston Highlands Development Corp. v. Hogue, 277 So.2d 260 (Fla.1973). Likewise, the circuit court’s ruling on the constitutionality of the statute was unnecessary. Accordingly, those portions of its order of compensation finding section 925.036, Florida Statutes, unconstitutional as applied and on its face are reversed.

It is so ordered.

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

ENGLAND, J., concurs in result only.


author: ENGLAND, Justice.

text:
    STATE of Florida, Petitioner, v. PALM BEACH NEWSPAPERS, INC., Respondent.
    No. 58598.
    Supreme Court of Florida.
    March 5, 1981.

      Jim Smith, Atty. Gen., and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Talbot D’Alemberte of Steel, Hector & Davis, Miami, and Florence Beth Snyder, West Palm Beach, for respondent.
   ENGLAND, Justice.

We have agreed to review a decision of the Fourth District Court of Appeal, reported at 378 So.2d 862, which interprets our authorization for cameras in Florida’s courtrooms by explicating the standards for trial judges to exercise their discretion in determining whether to exclude electronic media coverage of trial testimony. This case involves no first amendment issues regarding public access to the courts, and it in no way challenges the validity of our decision in In re Post-Newsweek Stations, Florida, Inc., 370 So.2d 764 (Fla.1979), which in general allows electronic media coverage of Florida court proceedings.

The issues before us arose in the course of a criminal prosecution against Arthur Sakell for first degree murder. Sakell was an inmate of Glades Correctional Institute who allegedly caused the death of another inmate. Prior to trial, the state presented to the trial judge two affidavits of former prisoners of that institution, on the basis of which it requested that the court exclude television coverage of their live trial testimony. The affidavits indicated that both prisoners had been moved to Lantana Correctional Institute, but nonetheless reflected the inmates’ fear of reprisal as a result of television reporting their live testimony against Sakell. Media representatives were notified of a hearing on the state’s request to exclude television coverage of these witnesses’ testimony, but were not furnished copies of the affidavits prior to or at the scheduled hearing.

At the hearing on the state’s request to exclude television coverage, no evidence was adduced by the state other than the two affidavits which had already been filed and made a part of the record of the proceeding. A prison official was available in court at the time of the hearing, apparently to testify regarding the facts of prison violence and the validity of the witnesses’ fears of prison reprisal. He was never called upon to testify, however. The entire hearing consisted of a discussion between counsel and the court. The hearing resulted in a determination by the trial judge that the media should be excluded.

The issues in this case focus squarely around that sentence in our Post-Newsweek decision which delegates to trial judges the authority to exclude electronic media in certain instances. The standard we adopted is:

The presiding judge may exclude electronic media coverage of a particular participant only upon a finding that such coverage will have a substantial effect upon the particular individual which would be qualitatively different from the effect on members of the public in general and such effect will be qualitatively different from coverage by other types of media.

370 So.2d at 779 (emphasis added). The controversies between the state and the media in this case center around the requirement of a “finding,” and the standards for its rendition.

Preliminarily, we reject the assertion that we have already ruled on the issue of excluded coverage with respect to prisoners who may testify against others in the prison system. It is true that our Post-Newsweek decision discussed a number of considerations which might allow a ban on electronic media coverage in judicial proceedings, and that one of the considerations we mentioned was the refusal of a prisoner-witness to testify for fear of reprisals from fellow inmates. Id. at 778. That discussion was not a determination that prisoner-witnesses are automatically eligible for an exclusionary ruling with respect to television and radio coverage of their testimony, however. It was merely illustrative of the type of “unique problems [which] can arise with respect to particular participants in a judicial proceeding,” so as to justify our authorizing trial judges to exercise their discretion in particularized determinations.

As another preliminary matter, we reject any suggestion that a “finding” within the contemplation of our Post-Newsweek decision requires a written order which separately identifies and labels a paragraph or sentence as a “finding of fact.” What is contemplated is a finding on the record, whether that be in a written order or in a transcript of the hearing. No special requirements attend this exclusionary finding which do not pertain in other areas, and certainly no additional formalities are necessary. The situation here with respect to the adequacy of “findings” is no different from that in Peterson v. State, 382 So.2d 701 (Fla.1980), in which we permitted trial judges to recite their conclusory findings regarding the voluntariness of confessions sought to be admitted.

Our determination of a standard to be applied by a trial judge in an exclusionary proceeding is aided materially by the articulations of the members of the district court panel which considered this case. Judge Downey, writing for the panel’s majority, expressed the view that an evidentiary hearing would be necessary to meet the Post-Newsweek standards, and that a “finding” such as would be required to exclude electronic media could not be predicated merely upon affidavits and a discussion between counsel and the court. Judge Letts, on the other hand, expressed in his dissent the view that the affidavits would be sufficient to predicate a “finding,” just as affidavits are acceptable as a predicate for other numerous trial court rulings. The lucid exposition of disparate views by Judge Downey and Judge Letts has been very helpful to set the issue here in clear perspective.

Affidavits are sufficient to ground a trial court’s determination that electronic media should be prohibited from covering the testimony of a particular witness. Indeed, a ruling can be supported by matters within the judicial knowledge of the trial judge, provided they are identified on the record and counsel given an opportunity to refute or challenge them. The dangers of in-prison violence, for example, may well be a matter which can be judicially noticed, particularly in a criminal prosecution for a jail house murder. In short, the evidentiary showing which must ground an exclusionary ruling is both simple and traditional. Affidavits are adequate for this purpose, as in other types of hearings.

Given that a finding is required, the question then arises whether an evidentiary hearing must in all cases be allowed either to test the veracity of non-testimonial data, such as whether an affidavit-asserted fear of reprisal is well-grounded, or to determine what less restrictive measures are available. This issue flows from our determination in Post-Newsweek that electronic media coverage of witness testimony is qualitatively different from the print media coverage which would in all events be available in trial proceedings.

An evidentiary hearing should be allowed in all cases to elicit relevant facts if these points are made an issue, provided demands for time or proof do not unreasonably disrupt the main trial proceeding. For example, going to the issue of less restrictive means, it might be relevant to an exclusionary ruling concerning a prisoner-witness, and a proffer of proof might be made, to show the ease or difficulty with which prison officials may curtail inmate access to particular forms of electronic media coverage. We need not speculate exactly what areas or items of proof could be developed to aid the court’s decision-making responsibility, but the “qualitatively different” standard of our Post-Newsweek decision should be established on the record with competent evidence whenever it is an issue and the opportunity for data-gathering is presented. Here, of course, that was not done.

Given a proper hearing, an issue still remains whether a bare assertion of fear by a prisoner will result in the automatic exclusion of the electronic media coverage of his testimony, where media representatives are not allowed by time or circumstances to test by cross-examination the prisoner’s fear of reprisal. We conclude that the bare assertion of fear may, but ordinarily should not, be sufficient. The important point of the exclusionary inquiry is not whether the inmate’s fear is justified. The key issue is whether the state and the defendant will be able to proceed to trial under circumstances which allow each to develop its case fully. The interest of the justice system in these proceedings is to set the procedural stage for a fair determination of the trial issues, and that interest overshadows any concern as to the reasonableness of the subjective state of mind of any individual witness. The trial judge in these peculiar exclusionary proceedings must satisfy himself that there is some adverse effect (or potential effect) on the proceeding due to the qualitative difference between electronic media coverage and other forms of trial reporting.

Stated another way, the issue in these hearings is collateral to the rights of the state and the defendant to a fair trial— rights which include the opportunity to present live witness testimony deemed by counsel to be indispensable. Where there is no competing first amendment claim, as here, the issue must of necessity be tipped in favor of exclusion, even though media representatives cannot test the foundation for affidavits by direct confrontation of the affiants. We note that in this case the state not only asserted a need for these witnesses to testify, but the witnesses declared by affidavit that they would not testify if television coverage were allowed, even under threat of contempt of court. The media’s interest in covering their testimony was less important on this record than the state’s need to try Sakell for the crime charged.

As a next matter, we decline to adopt a precise standard of proof for exclusionary proceedings such as these, and we decline to prescribe witness requirements for any hearing which might be held. Trial judges must exercise their discretion on the basis of what is available at the time and under the circumstances. Mini-trials which disrupt the timing, procedures or sequence of the main trial are to be avoided at all costs. Yet we do not give trial judges carte blanche authority. Trial judges can, obviously, abuse their discretion in a variety of ways, such as foreclosing a meaningful presentation of evidence, defeating adequate notice requirements, or acting wholly without record support which is readily available. In the final analysis, though, when the rules of the game are obeyed and a fair exchange of views obtained, it remains more important that a trial go forward with the testimony of witnesses than that the media be permitted to cover their testimony, even conceding that witnesses’ names may appear in the written media and that the indicted defendant will himself, from his position in the courtroom, see these witnesses testify.

The premise of our Post-Newsweek decision, translated into the context of this case, is that there may well be a qualitative difference between the display of inmate-witnesses’ images on television sets in the halls of their prison home, on the one hand, and either a word-of-mouth campaign spread by the indicted defendant when he returns to jail to the effect that two of his former jail colleagues “finked,” or written reports of their testimony carried in local newspapers, on the other. The media here recognizes that qualitative difference, but asks us to emphasize that only that type of difference may be the basis for an exclusionary ruling against the electronic media. We restate, because the media is correct, that this difference alone is the focus of the hearing.

We also reiterate, however, that it remains essential for trial judges to err on the side of fair trial rights for both the state and the defense. The electronic media’s presence in Florida’s courtrooms is desirable, but it is not indispensable. The presence of witnesses is indispensable. That difference should always affect but never control a trial judge in his approach to the exercise of his discretion in excluding electronic media coverage of a prisoner-witness, or for that matter, any witness.

For the foregoing reasons, we must disagree with the majority decision of the district court below and adopt the standards for evidentiary exclusionary proceedings with respect to electronic media expressed above. Were we to apply these standards to the order of the trial court in this case, we would conclude that the trial judge improperly excluded electronic media coverage of these prisoner-witnesses. First, the notice of hearing to media representatives was fundamentally inadequate. Second, given the denial of copies of the affidavits to media representatives and the ready availability of a prison official to speak concerning prison conditions or the means by which inmate access to particular forms of electronic media coverage might have been curtailed, the hearing itself was defective. Nonetheless, the trial of Sakell has been concluded so that no remand for further proceedings is necessary.

It is so ordered.

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

ADKINS, J., concurs in result only.

      . We agree completely with the district court that the trial judge erred in refusing to disclose the affidavits to the electronic media for purposes of the exclusionary hearing. The state now concedes that the denial of access to those materials was an error. Were the matter still relevant we would reverse the action of the trial judge on that basis alone, for notice of a hearing without an opportunity to see the documentary basis for the state’s motion would be, in essence, no notice at all. Cf. State ex rel. Miami Herald Publishing Co. v. McIntosh, 340 So.2d 904 (Fla.1976) (news media have special concerns entitling them to notice and at least a summary hearing before any trial court enjoins or limits publication of court proceedings).

      . The judge apparently also ruled that sketch artists would be excluded from the courtroom, although the record is not clear that a formal ruling was made. There was plainly no basis for an exclusion of sketch artists in this case. See United States v. Columbia Broadcasting Sys., Inc., 497 F.2d 102 (5th Cir. 1974). The alleged ruling makes no difference in this proceeding as it now stands, however, inasmuch as the trial of Sakell has gone forward and resulted in his acquittal.

      . In re Post-Newsweek Stations, Florida, Inc., 370 So.2d 764, 778 (Fla.1979).

      . Examples of proceedings which can be determined by affidavits alone are summary judgment hearings (Fla.R.Civ.P. 1.510(a)), temporary injunction hearings (Fla.R.Civ.P. 1.610(b)), nonadversary probable cause hearings (Fla.R. Crim.P. 3.131(a)(3)) and motions for a new trial (Fla.R.Crim.P. 3.600(c)).

      . This case in no way involves a prior restraint on what the media may publish, such as we dealt with in State ex rel. Miami Herald Pub lishing Co. v. McIntosh, 340 So.2d 904 (Fla. 1976).

      . Media counsel suggests that many of the problems concerning electronic coverage would be eliminated if there were better pre-hearing communication between opposing counsel, and if these sensitive matters were not “dumped” on the trial judge without a clear presentation of the reasons underlying the parties’ respective positions. We, too, would urge improved communication between counsel to aid the courts’ decision-making capabilities.

      .For instance, evidence may be presented by the media to compare prisoner access to newspapers, television and radio broadcasts, and to explain institutional mechanisms or practices for the control of each.

      . Canon 3A(7) of the Florida Code of Judicial Conduct, which constitutes a general authorization for electronic media and still photography trial coverage, provides:

        Subject at all times to the authority of the presiding judge to (i) control the conduct of proceedings before the court, (ii) ensure decorum and prevent distractions, and (iii) ensure the fair administration of justice in the pending cause, electronic media and still photography coverage of public judicial proceedings in the appellate and trial courts of this state shall be allowed in accordance with standards of conduct and technology promulgated by the Supreme Court of Florida,
      (emphasis added). In addition, the procedural suggestions expressed by Justice Sundberg in State ex rel. Miami Herald Publishing Co. v. McIntosh, 340 So.2d 904, 912 (Fla.1976) (Sund-berg, J., concurring), are relevant here and would eliminate many of the potential problems.

      . As media counsel aptly put the matter at the television exclusion hearing:
      [Yjou show us where it’s going to make any more difference if we’re photographing you than if someone on the radio speaks about you and mentions your name or if they take a picture with a still camera or any other means that the media uses when you speak about the rights of the public to know.


text:
    THE FLORIDA BAR, Complainant, v. Donald F. LEGGETT, Respondent.
    No. 59522.
    Supreme Court of Florida.
    March 5, 1981.
    John A. Weiss, Bar Counsel and James P. Hollaway, Deputy Staff Counsel, Tallahassee and Donald L. Braddock, Past Chairman, Fourth Judicial Circuit Committee “B”, Jacksonville, for complainant.
    Donald F. Leggett, in pro. per.
   PER CURIAM.

The Florida Bar charged Leggett with violating Disciplinary Rule 6-101(A)(3) by failing to prosecute a mortgage foreclosure suit and a personal injury action for two of his clients. Leggett entered an unconditional plea of guilty as charged, and the referee recommended that he be found guilty of neglecting legal matters entrusted to him. The referee further recommended a twelve-month suspension, but added a proviso recommending a public reprimand and a two-year probation if Leggett made restitution to a client and paid the costs of the instant proceedings within forty days.

On December 3, 1980, the Bar informed this Court that Leggett had made restitution and paid the costs assessed against him. We therefore approve the referee’s report and recommendations.

Donald F. Leggett is placed on probation for two years from the date this opinion is filed. During probation he is directed to file quarterly reports with general staff counsel to the Florida Bar and a copy of those reports with the Clerk of the Supreme Court. We remind Mr. Leggett that members of the legal profession are expected to devote their talent and attention to the matters entrusted to them. Publication of this opinion shall constitute a public reprimand.

It is so ordered.

ADKINS, Acting. C. J., and BOYD, OVERTON,. ENGLAND and McDONALD, JJ., concurring.


text:
    THE FLORIDA BAR, Complainant, v. Guillermo FARINAS, Respondent.
    No. 60166.
    Supreme Court of Florida.
    March 5, 1981.
    Cynthia Prettyman, Bar Counsel, Fort Lauderdale, John F. Harkness, Jr., Executive Director, and Stanley A. Spring, Staff Counsel, Tallahassee, for complainant.
    Guillermo Farinas, in pro per.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Unconditional Guilty Plea as to violations of The Florida Bar Code of Professional Responsibility, Disciplinary Rules 1-102(A), 2-110(A)(2), 6-101(A)(3) and 7-101(A)(2). We approve the Petition, and we hereby reprimand Respondent, Guillermo Farinas, for these violations. The publication of this order in Southern Reporter shall serve as Respondent’s public reprimand.

Costs in the amount of $360.00 are hereby taxed against the Respondent.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Nelda M. ANDERSON, Respondent.
    No. 59165.
    Supreme Court of Florida.
    March 5, 1981.
    John A. Weiss, Bar Counsel, Tallahassee, James P. Hollaway, Deputy Staff Counsel, Tallahassee and E. C. Deeno Kitchen, Acting Chairman, Second Judicial Circuit Grievance Committee, Tallahassee, for complainant.
    Nelda M. Anderson, in pro. per.
    Steve M. Watkins, Tallahassee, for respondent.
   PER CURIAM.

In this disciplinary proceeding a report of the referee has been filed to which both The Florida Bar and respondent have filed petitions for review under Florida Bar Integration Rule, article XI, Rule 11.09(3)(a).

The referee found that Anderson has misappropriated trust funds of clients, failed to keep adequate trust account records, and issued checks for which sufficient funds were not available. Respondent stipulated to her guilt for these offenses, but offered various mitigating circumstances to alleviate punishment, including her cooperation with the bar’s investigation, her repayment of all client losses, a lack of prior disciplinary problems, and her personal, family and law practice circumstances. Evidence was adduced that she was well-regarded, generally, in her community. The referee reported:

The undersigned recommends that Respondent, Nelda M. Anderson, be found guilty of violation of Rule 11-02(4) of the Integration Rule and should be punished pursuant to Disciplinary Rule 9-102(b)(4) of the Code of Professional Responsibility. Because of the stipulation and plea of guilty entered by Respondent, the referee was unable to hear personally from Respondent. Therefore, it can only be concluded that Respondent knew what she was doing and did for a period of time as alleged in the complaint deliberately and willfully disregard her fiduciary responsibility, and that her acts evince moral turpitude as found in the dissenting opinion of The Florida Bar, Complainant, v. Ernest W. Breed [Fla.], 378 So.2d 783.
There does not appear to be any reasonable explanation for the acts of Respondent except ignorance. This conclusion is arrived at from the fact that she gave The Bar full, honest and complete cooperation and that there was no criminal intent and that she did, through loans and other funds, reimburse all of the funds and no client was ultimately financially deprived. However, I am sure that Mrs. Glover had some anxious moments.
The Supreme Court has, through a long line of cases, held that each case must be decided on its individual facts which, of course, explains the variety of penalties for violation. I suppose that is as it should be. However, the personal use of funds entrusted to a lawyer by his or her clients without the client’s permission is, in my opinion, inexcusable and is tantamount to embezzlement, and one guilty of committing such lack of fiduciary responsibility must be punished. The fact that Respondent repaid the funds mitigates the severity of her acts. However, this does not absolve her of the violation. I therefore recommend that Respondent, Nelda M. Anderson, be suspended from the practice of law for a period of two years. I further recommend that in the event Respondent petitions the court for reinstatement following the two-year period, she be required to prove rehabilitation in the following manner:
(a) That she be required to enroll in an accredited law school (she shall be taught the fundamentals of trust fund accounting if such course is available);
(b) That prior to her reinstatement, she be required to take and pass the ethics portion of the Florida bar examination;
(c) That she be examined by the court regarding her knowledge of trust accounting to assure that she fully understands the mechanics as well as the ethics of the use of trust funds;
(d) That she be required to repay the loans obtained by her to rehabilitate her trust account and that none of these loans will be discharged in bankruptcy proceedings, and that all loans be repaid prior to her reinstatement;
(e) That she be placed on probation after the expiration of the two years for a period of time in the discretion of the court so that her records shall be available for inspection at any time by The Florida Bar to assure that she is keeping proper records and correctly administering the funds entrusted to her, if any. I further recommend that Respondent be assessed the costs in this matter in the amount of $816.37.
These recommendations are based upon the cases of The Florida Bar, Complainant, v. Ernest M. Breed, Respondent, 378 So.2d 783, and The Florida Bar, Complainant, v. Pahules, Respondent, 233 So.2d 130 (Fla.1970).

Despite the bar’s request that we disbar Anderson and Anderson’s request that we upset the referee’s finding of moral turpitude, we find ample record evidence to support the referee’s report and we deem his recommendation to be appropriate under all circumstances, with one exception; we reject the referee’s first recommendation that Anderson be required to enroll in an accredited law school. The referee’s recommended punishment, with the exception noted, is adopted as the judgment of this Court.

It is so ordered.

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


author: WENTWORTH, Associate Judge.

text:
    Henry G. EDMONDSON, Appellant, v. Avis Mitchell SWOPE and Nationwide General Insurance Company, Appellees.
    No. OO-204.
    District Court of Appeal of Florida, Fifth District.
    Dec. 16, 1980.
    Rehearing Denied April 7, 1981.
    R. K. Roberson of Roberson & Roberson, Deland, for appellant.
    C. Thomas Ferrara, of Pitts, Eubanks & Ross, Deland, for appellees.
   WENTWORTH, Associate Judge.

This is an appeal from an order of proration entered pursuant to Section 440.-39(3)(a), Florida Statutes (1975). We affirm.

Edmondson, while in the course and scope of his employment with Halifax Cable T.V., was injured in a vehicular accident on July 10, 1976. Edmondson brought suit against the third-party tortfeasor, Swope, and his insurer, Nationwide General Insurance Company, for the injuries sustained in the accident. The suit was subsequently settled for $15,000, which was the limit of applicable insurance coverage. Travelers Insurance Company, Halifax’s compensation carrier, paid Edmondson a total of $42,191.36. During the pendency of the suit against the third-party tortfeasor, Travelers filed a “Notice of Payment of Compensation and Medical Benefits” for workmen’s compensation benefits paid and to be paid to Ed-mondson. § 440.39(3)(a), F.S. (1975). Ed-mondson’s petition filed in December, 1977, for proration of the settlement proceeds was abated upon Travelers’ objection that proration was premature since a final determination of the workmen’s compensation benefits due was scheduled for hearing in March, 1978. Travelers subsequently filed amended notices of payment and a petition for proration. The trial court ordered Ed-mondson to pay Travelers $4,365.22 “per the provisions of Florida Statute 440.39(3)(a)” based upon his finding that Edmondson failed to establish that he did not recover from the third-party tortfeasor the full value of his damages because of comparative negligence or the limits of insurance liability and collectibility. The court also denied Edmondson’s petition for attorney’s fees.

Edmondson asserts that the court erred in failing to equitably distribute the amount recovered. We find no reversible error. Section 440.39(3)(a) provides:

The employer or carrier shall recover 50 percent of what it has paid and future benefits to be paid unless the employee or dependent can demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collectibility. The burden of proof will be upon the employee.

Pursuant thereto, it is clear that Travelers was entitled to recover 50% of what it paid unless Edmondson demonstrated that he did not recover the full value of damages sustained by him because of comparative negligence or because of limits of insurance coverage and collectibility. Maryland Casualty Co. v. Whitley, 375 So.2d 18 (Fla. 1st DCA 1979); National Ben Franklin Insurance Co. v. Hall, 340 So.2d 1269 (Fla. 4th DCA 1976); Ramar-Dooley Construction Co. v. Norris, 341 So.2d 546 (Fla. 2d DCA 1977). Ed-mondson failed to meet his burden of proof since no evidence was presented as to collec-tibility. Maryland Casualty Co. v. Whitley, supra. Edmondson’s argument that the trial court misapprehended the law since the reimbursement ordered does not represent 50% of what Travelers has paid is unavailing. Edmondson cannot complain of this error because he is not adversely affected, and Travelers has not cross appealed that issue. E. g., McMullen v. Hoofnagle, 106 Fla. 16, 142 So. 598 (1932); Strong v. Clay, 58 So.2d 435 (Fla.1952); Golden v. Harrell, 147 So.2d 350 (Fla. 2d DCA 1962); cert. denied 155 So.2d 150 (Fla.1963).

Edmondson’s contention that the trial court erred by denying his petition for attorney’s fees is also without merit. See Universal Engineering Corporation v. Cartier, 380 So.2d 1160 (Fla. 3d DCA 1980). Ed-mondson’s other contentions have been considered and have been determined to be without merit.

Accordingly, the order appealed is AFFIRMED.

ROBERT P. SMITH, Jr. and ERVIN, Associate Judges, concur.


text:
    Michael W. HALLORAN, CLU, Appellant, v. PENSACOLA ASSOCIATION OF LIFE UNDERWRITERS, INC., Appellee.
    No. SS-311.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1981.
    John P. Welch, Jones & Welch, P. A., Pensacola, for appellant.
    Robert D. Bell and Thomas E. Wheeler, Jr., Fisher, Bell, Hahn, Winn & Ptomey, Pensacola, for appellee.
   PER CURIAM.

Appellant Michael W. Halloran appeals a final order dismissing with prejudice his amended complaint for a temporary injunction against Appellee Pensacola Association of Life Underwriters, Inc. (Association).

On July 31, 1979, the Association, a voluntary non-profit association, notified appellant that a disciplinary hearing was scheduled for August 15,1979, to determine whether appellant had made certain derogatory and defamatory statements about another member of the Association. As a result of the disciplinary hearing, appellant was suspended from membership in the Association from August 15, 1979, to December 31, 1979.

On October 19, 1979, appellant filed an amended complaint for a temporary injunction against the Association, seeking to enjoin the enforcement of his membership suspension. On October 26,1979, the lower court dismissed the complaint with prejudice because appellant failed to allege matters which would constitute irreparable harm, failed to demonstrate an inadequate remedy at law, and failed to allege the existence of a clear legal right enforceable by the court.

Since the temporary suspension from membership sought to be enjoined has already expired, the issues presented by this appeal have become moot. Coursen v. City of South Daytona, 127 So.2d 905 (Fla. 1st DCA 1961); Gill v. City of North Miami Beach, 156 So.2d 182 (Fla. 3d DCA 1963); Chafetz v. Greene, 203 So.2d 18 (Fla. 3d DCA 1967). Accordingly, this appeal is dismissed on our own motion without prejudice to the right of appellant to pursue such other action for relief as he may be advised.

Appeal dismissed.

ERVIN, LARRY G. SMITH, and SHIVERS, JJ., concur.


author: DANAHY, Judge.

text:
    Juan Oliverio RODRIGUEZ, Armando Anaceato Vazquez, Amado Rodriguez, Domingo Francisco Ceballos, Juan Miguel Serra and Miguel Angel Herrera, Appellants, v. STATE of Florida, Appellee.
    Nos. 79-1490, 79-1491, 79-1492, 79-1675, 79-1676 and 79-1677.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 1981.
    Rehearing Denied March 19, 1981.
    William R. Tunkey and Ron Dion of Weiner, Robbins, Tunkey & Ross, Miami, for appellants Vazquez, A. Rodriguez and J. Rodriguez.

      Arnold R. Ginsberg of Horton, Perse & Ginsberg, and Loffredo & Loffredo, Miami, for appellants Ceballos, Serra and Herrera.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler and G. P. Waldbart, Asst. Attys. Gen., Tampa, for appellee.
   DANAHY, Judge.

These consolidated appeals are from convictions and sentences for felony possession of marijuana. A jury found the two Rodri-guezes and Vazquez guilty of the offenses of possession of more than one hundred pounds of marijuana, and possession of more than one hundred pounds of marijuana with intent to sell. The trial judge adjudicated them guilty of each offense and sentenced them to concurrent prison terms of three years on each offense. Ceballos, Serra and Herrera pled nolo contendere to a single count of possession of more than one hundred pounds of marijuana and reserved the right to appeal the denial of their motions to suppress evidence. We find no merit in the argument presented by these three appellants and we therefore affirm their convictions and sentences.

While we also affirm the convictions of the Rodriguezes and Vazquez, we do agree with their contention that their three-year sentences for possession of more than one hundred pounds of marijuana were illegal and must be stricken. These three appellants correctly argue that where, as here, the charge of possession involves the same marijuana which is the subject of the charge of possession with intent to sell, the former offense is a category three lesser included offense of the latter as enunciated in Brown v. State, 206 So.2d 377 (Fla.1968). Both offenses in the case at bar involved the same marijuana and arose from a single criminal episode. Under these circumstances our statute specifically prohibits the imposition of separate sentences where one of the offenses is a lesser included offense of the other. § 775.021(4), Fla.Stat. (1979). Thus, the trial judge erred when he sentenced these appellants for possession of more than one hundred pounds of marijuana in addition to the sentence he imposed for possession of marijuana of more than one hundred pounds with intent to sell. Brainard v. State, 380 So.2d 1302 (Fla. 2d DCA 1980).

Accordingly, we vacate the sentences imposed on the Rodriguezes and Vazquez for possession of more than one hundred pounds of marijuana. Otherwise we affirm.

OTT, A.C.J., and CAMPBELL, J., concur.


author: LETTS, Chief Judge.

text:
    Donna ARNOLD f/k/a Donna Biggers, Appellant, v. Garry O. BIGGERS, Appellee.
    No. 79-2163.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1981.
    Rehearing Denied April 7, 1981.
    Osborne Walker O’Quinn, Fort Pierce, for appellant.
    James T. Walker of Brennan, McAliley, Hayskar & McAliley, Fort Pierce, for appel-lee.
   LETTS, Chief Judge.

Affirmed on the basis of Johnson v. Johnson, 396 So.2d 192 (Fla. 4th DCA, 1980.)

GLICKSTEIN, J., concurs.

HURLEY, J., dissents.


author: GRIMES, Judge.

text:
    LEE COUNTY, Florida, a political subdivision of the State of Florida, for and on behalf of the Fort Myers Beach Sewer District, Appellant, v. T & H ASSOCIATES, LTD., a Florida limited partnership; Douglas A. Biggar; Dennis Kelly, et al., Appellees.
    No. 80-263.
    District Court of Appeal of Florida, Second District.
    Feb. 11, 1981.
    Rehearing Denied March 18, 1981.
    Robert L. Donald and Stephen Dalton of Pavese, Shields, Garner, Haverfield, Kluttz & Cottrell, Fort Myers, for appellant.
    William A. Keyes, Jr. of Stewart, Stewart, Jackson & Keyes, Fort Myers, for ap-pellees Douglas A. Biggar and Dennis Kelly.
   GRIMES, Judge.

This appeal points up the difficulty of determining a proper value for condemned land which contains growing crops.

Douglas A. Biggar and Dennis Kelly leased two adjoining parcels of land in the Iona area of Lee County from two different owners in order to plant a crop of Jubilee watermelons. Both leases had one year rental terms beginning on June 1, 1977. During the summer of 1977, Biggar and Kelly prepared the leased property for planting by drilling two wells, digging drainage ditches, and clearing and plowing the ground. On November 8, 1977, Lee County filed suit to condemn 19.8 acres of the leased property as a site for sewage disposal facilities. Biggar and Kelly were not identified as having an interest in the property and did not receive notice of the suit. They planted watermelon seeds on the property on November 30 and December 1 and 2. The plants sprouted about ten days later. On January 6, 1978, the court rendered an order of taking which found that the county was entitled to the property in question. At this time, the watermelon plants were three or four inches high and had four to six leaves.

On January 10, 1978, Biggar and Kelly filed an answer alleging their interest in the property and asserting that they deserved compensation for the loss of the watermelon plants on the property taken. The county belatedly acknowledged that Biggar and Kelly were entitled to compensation, and the case went to trial on the issue of value as of the date of taking.

The county presented two witnesses. Henry H. Witte, who had been manager of the state farmers’ market in Fort Myers for twenty-four years, testified that in his experience there had never been any trading on the market for a field of immature watermelon plants similar to that being farmed by Biggar and Kelly at the time of the taking. Paul Jacobs, a real estate appraiser, then gave his opinion that the value of the condemned leasehold was $12,210. He arrived at that figure by adding the lease rentals and production costs incurred by Biggar and Kelly up to the date of taking.

The defendants first recalled Mr. Witte and introduced a compilation of the 1978 daily watermelon price reports. Their next witness was Dri Paul Everette of the University of Florida Agricultural Research Facility near Immokalee. He testified that within a reasonable degree of probability, the plants would have grown to maturity and that with the strong market which prevailed in April of 1978, Biggar and Kelly would have found it economical to conduct four cuttings which would have produced a yield of 50,000 to 60,000 pounds of melon an acre. Danny Moss, an experienced farmer in southwest Florida, said that in 1978 he had raised Jubilee melons approximately 18 miles from the defendants’ fields and had harvested a crop in April which averaged about 52,000 pounds of watermelon an acre. He noted that the cold weather which had occurred in February of 1978 had not affected his crop. He estimated the probable yield on Biggar and Kelly’s field at 50,000 to 55,000 pounds an acre.

Johnny Tucker, an agricultural chemical salesman, testified that based upon temperature and weather data occurring after the date of taking,, he believed that the plants would have grown to full maturity by the time of the April harvest. Mr. Biggar also testified that the plants would have grown to maturity and that he would have harvested between 48,000 and 57,000 pounds an acre.

John Calhoun, a real estate appraiser, testified that a cost approach was not a proper method of valuation. He used a yield figure of 45,000 pounds an acre and assumed in accordance with evidence previously introduced that there would have been four cuttings of the melons. He took the actual market figures for each of the weeks in which the cuttings would have occurred and arrived at a figure of $117,612 for the gross value of the crop. He then subtracted the growing costs that Biggar and Kelly did not have to pay because of the taking and arrived at a figure of $99,-400 as his estimate of value.

Throughout the presentation of the defendants’ case, the county made timely objections to the evidence of weather and market conditions occurring after the date of the taking. The county also complained that the defendants’ method of valuation impermissibly took into consideration the loss of profits on the watermelons. The court overruled all of these objections and a like objection to the following jury instruction:

One method of arriving at the value of a growing crop at the time of taking, assuming that it had no market value, is, one, to estimate the probable yield had the crop not been destroyed or taken; two, calculate the value of that yield in the market; and, three, deduct the value and amount of labor and expense which after, and but for, the destruction or taking, would have been required to take care of and market the crop.
In determining the value of the watermelon crop, you may determine its value calculated on the basis of the average market price for the same crop during the season that the taking occurred.
If you find from the evidence that the crop was so immature that any estimate of value based upon prospective crop yield is purely speculative, then the measure of damages you should apply to the determination of just compensation due the owner is the rental value of the land, plus the cost of seeding and other expenses of production.

The jury returned a verdict in favor of Biggar and Kelly for $99,400. The court reduced this figure by the amount of money which the county had previously advanced to the defendants and entered judgment in the amount of $70,400 plus interest. The county appeals from this judgment.

At the outset, there are certain matters which have produced no disagreement or which, in any event, the parties have not made issues in this appeal. The county concedes that as lessees Biggar and Kelly are entitled to compensation for the value of their condemned leaseholds. Moreover, the county does not assign as error the court’s decision to try the value of the leaseholds separately from the value of the underlying fee ownership. Finally, both parties have accepted January 6, 1978, as the proper valuation date.

The county raised four points on appeal.

I.DID THE TRIAL COURT ERR IN ALLOWING BIGGAR AND KELLY TO INTRODUCE EVIDENCE AS TO THEIR BUSINESS DAMAGES AND LOSS OF FUTURE PROFITS THEY SUFFERED FROM THE TAKING?
II.DID THE TRIAL COURT ERR IN ALLOWING EVIDENCE OF WEATHER AND ECONOMIC CONDITIONS AS THEY EXISTED AFTER THE VALUATION DATE?
III. DID THE TRIAL COURT ERR IN INSTRUCTING THE JURORS THAT THEY COULD CONSIDER THE MARKET PRICE OF WATERMELONS SOME THREE MONTHS AFTER THE VALUATION DATE?
IV. WAS THE JURY’S COMPENSATION AWARD SUPPORTED BY COMPETENT, SUBSTANTIAL EVIDENCE?

However, because of the interrelationship of these issues, the county argued them together, and we will treat them in a like manner.

Most courts agree that when land containing growing but unmatured crops is condemned, the land and the crops should not be valued separately in determining the compensation due the owner. 4 P. Nichols, The Law of Eminent Domain § 13.21 (rev. 3d ed. P. Rohan 1979); Annot., 1 A.L.R.2d 879 (1948); 29A C.J.S. Eminent Domain § 173 (1965). However, there is little uniformity with respect to what evidence a jury may properly consider in weighing the effect of the presence of the crops upon the value of the property. Some courts have rejected evidence of anticipated revenue from unmatured crops as too uncertain and speculative. Papke v. City of Omaha, 152 Neb. 491, 41 N.W.2d 751 (1950); White v. Pennsylvania R. Co., 229 Pa. 480, 78 A. 1035 (1911). Other courts have allowed evidence of the net revenues which the crops could have been expected to bring had they been allowed to mature. Korf v. Fleming, 239 Iowa 501, 32 N.W.2d 85 (1948); State v. Dillon, 175 Neb. 350,121 N.W.2d 798 (1963); In re Bensel, 158 App.Div. 41, 142 N.Y.S. 982 (1913), aff’d, 210 N.Y. 623, 104 N.E. 1126 (1914).

The county contends that we should hold that the court erred in admitting the testimony submitted by Biggar and Kelly because it amounted to evidence of loss of profits or business damage. Where less than the entire property is taken, section 73.071(3)(b), Florida Statutes (1979), permits the recovery of damages to an established business of five years standing located on the remaining lands. However, it is well settled that business damages or lost profits are not recoverable as part of the compensation for an entire taking. Jamesson v. Downtown Development Authority, 322 So.2d 510 (Fla.1975); State Road Department v. Bramlett, 189 So.2d 481 (Fla. 1966); Douglass v. Hillsborough County, 206 So.2d 402 (Fla. 2d DCA 1968). Since we are dealing only with the value of that portion of the leasehold actually taken, the county argues that the jury should not have considered evidence of the prospective profits from the melons.

Significantly, the authorities cited by the county pertain to commercial business establishments. We believe that growing un-matured crops stand on a different footing. The reason why there can be no compensation for the loss to a business because of condemnation is that the placing of a fair value on the loss would permit consideration of too many intangibles, such as the extent to which the owner could have profitably transferred his business to a new location and the relative degree of his commercial skills. However, in the case of growing crops the prospective revenue comes from the property itself rather than from a business operated at a particular location. 4 P. Nichols, supra, at § 12.3121. This is a subtle distinction which is grounded upon the premise that until they reach the point of severance at maturity, the crops inhere in the land on which they are growing. Cf. City and County of Denver v. Quick, 108 Colo. 111, 113 P.2d 999 (1941), a case involving the condemnation of agricultural property in which the court explained the distinction between income from the land and income from a business conducted upon the land.

Here, there was no market for the leaseholds with the watermelons in a partial state of development. In order to arrive at “full compensation,” it was necessary to consider other evidence bearing on value. Since the melons had a growing period of no more than one year, we believe that the court did not err in allowing evidence on the prospective net revenue. The evidence was at least as probative as that submitted by the county, which would simply reimburse the defendants for out-of-pocket costs and totally ignore their efforts in successfully bringing the crops to the stage of maturity they occupied when the land was taken.

The remaining issue with which we must deal is whether, in allowing evidence of which contemplated that the existence growing crops would enhance the value of the land, the court erred in admitting testimony about economic and weather conditions which occurred after the order of taking. At first blush, the county makes a compelling argument on this point because condemned property is supposed to be valued as of the date of taking. Theoretically, the value of the property at the time of the taking ought to reflect both the promise and the risk inherent in the growing of the crops based upon past experience rather than events which have not yet occurred. But the recitation of what actually happened in the market and of the weather conditions which actually prevailed is in this instance the best possible evidence available. It removes from doubt any speculation over what the market might be, and it takes into consideration whether the crop would have survived the balance of the winter. If a devastating freeze had occurred shortly after the taking, the county ought to have been permitted to demonstrate that the crop would have been wiped out anyway. By the same token why shouldn’t Biggar and Kelly be allowed to show that, in fact, their crop would have survived? Court disputes should be decided upon the most reliable evidence available. Therefore, it was proper to permit evidence of the economic and weather conditions which actually prevailed subsequent to the taking. We note that other courts have also allowed after-the-fact evidence of market conditions in cases of this kind. United States v. 576.784 Acres of Land, 143 F.2d 408 (3d Cir. 1944), cert. denied 323 U.S. 716, 65 S.Ct. 43, 89 L.Ed. 576 (1944); Daily v. United States, 90 F.Supp. 699 (Ct.C1.1950).

The court’s instructions were consistent with our analysis. Under these instructions, the jury was entitled to consider the defendants’ evidence bearing on the value of the leasehold. The amount of the verdict was directly related to that evidence. Hence, no error occurred.

AFFIRMED.

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

      . Ironically, the court below deviated from this rule by holding that a watermelon crop was personal property and therefore subject to valuation separate and apart from the realty. However, the county has not argued this as a point for reversal. In any event, in view of the conclusions we reach in this opinion, the ruling would appear to be harmless error because the jury was entitled to hear the same evidence, not for the purpose of placing a value on the crops themselves but in order to reach the value of the leasehold.

      . In the case of plants with a growing life in excess of a year, such as trees grown for commercial cutting, the rule may be entirely different.

      . In each case, the trial court always retains the discretion to decide whether the proffered evidence is sufficiently reliable to be admitted for jury consideration. See Buchman v. Seaboard Coast Line R.R., 381 So.2d 229 (Fla. 1980).


author: COWART, Judge.

text:
    STATE of Florida, Appellant, v. Wilson James MOSS, a/k/a James Wilson Moss, Appellee.
    No. 79-872/T4-506.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 1981.
    Rehearing Denied March 26, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellant.
    Ramsey W. Dulin and Judith A. Ginn, Orlando, for appellee.
   COWART, Judge.

After the defendant in a criminal prosecution had twice moved for continuances, which were granted, the trial court granted his discharge on the ground that he had been denied a speedy trial.

The defense continuances only impliedly waived the defendant’s right under the speedy trial rule but not his constitutional speedy trial rights, Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980), State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla. 1971).

Defendant’s contention, apparently accepted by the trial court, is that while his continuances and waivers waived his speedy trial rights under Florida Rule of Criminal Procedure 3.191, his constitutional right to be tried within a reasonable time was violated by delay in bringing him to trial. However, in this case, in addition to his two successful motions for continuances, one of which contained an express waiver of “his right to a speedy trial,” the defendant filed a separate written waiver of speedy trial in which he expressly waived

his right to a speedy trial as provided by the State and Federal Constitutions, the Laws of Florida, Rule 3.191, Florida Rules of Criminal Procedure, and other applicable provisions.

We hold this clear waiver was sufficient to waive for an indefinite period of time the defendant’s speedy trial rights under article I, section 16, of the Constitution of the State of Florida, under the sixth amendment of the United States Constitution, under section 918.015, Florida Statutes (1972), and under Florida Rule of Criminal Procedure 3.191.

When an accused expressly waives his speedy trial rule rights for an indefinite period of time he can re-acquire certain speedy trial rule rights in the same manner as when he has, by seeking and obtaining a continuance, impliedly waived his rule rights; i. e., by filing a demand for a speedy trial, which commences the running of a 60 day period under Florida Rule of Criminal Procedure 3.191(a)(2) or by filing a non-meritorious motion for a discharge the denial of which will commence the running of a 90 day period under Florida Rule of Criminal Procedure 3.191(d)(3). See Butterworth and Cullen. Similarly, when constitutional speedy trial rights are waived for an indefinite period of time those rights can be reinstated by a demand for a speedy trial, a withdrawal of the waiver, or some other clear assertion of constitutional speedy trial rights. In such event, the accused will again be entitled to trial within a reasonable time measured from such assertion. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The order of discharge is reversed, appellee’s motion for discharge is denied, and the cause is remanded for further proceedings. -

ORFINGER and COBB, JJ., concur.

      . See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

      . As distinguished from an extension for a fixed or determinable time period by order of the court upon stipulation under Florida Rule of Criminal Procedure 3.191(d)(2).

      . This opinion, when final, will constitute a denial of appellee’s motion for discharge and, under Butterworth and Cullen, will commence the running of a new ninety day period within which appellee must be brought to trial under Florida Rule of Criminal Procedure 3.191(d)(3).


text:
    COTTON STATES MUTUAL INSURANCE COMPANY, etc., Appellant, v. HUNT TRUCK SALES AND SERVICE, INC., Appellee.
    No. 80-760.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 1981.
    John S. McEwan, II, of Sanders, Mc-Ewan, Mims & McDonald, Orlando, for appellant.
    Stephen B. Rakusin, Gainesville, and James R. Lavigne, of Lavigne & Davis, P.A., Winter Park, for appellee.
   COWART, Judge.

If a lienor is joined as a party defendant in an action filed within the statute of limitations on the lienor’s claim, but does not file a counterclaim to enforce his right to a lien or to payment under a substituted payment bond until after the running of such limitations, are the lienor’s rights barred?

We affirm the trial court in holding that the lienor’s rights were not barred in this particular case. We agree that the institution of an action on one cause of action does not toll a statute of limitations on another cause of action, and, as was held in Horace Mann Insurance Company v. DeMirza, 312 So.2d 501 (Fla. 3d DCA 1975), a counterclaim seeking independent affirmative relief, filed after the applicable statute of limitation has run on the cause of action in the counterclaim, is barred, notwithstanding that the main action was instituted before the statute of limitation had run on the cause of action in the counterclaim. However, in this case, the original action was one by the appellant bonding company against the owner, the original lienor, the appellee as successor to the original lienor, and others, in the nature of aii action for a declaratory judgment, attacking the validity of all liens and requesting a judicial determination of appellant’s rights, duties and obligations under its bond. Even without the filing of a counterclaim, this action by appellant bonding company, when contested by the appellee, fully put into litigation all issues necessary for a binding judicial determination of the validity of the appellee’s rights against appellant on the bond in question. All necessary parties were joined in appellant’s original action thereby eliminating the basic problem in Diversified Mortgage Investors v. Benjamin, 345 So.2d 392 (Fla. 3d DCA 1977). We agree with the court in Diversified that the mere joinder of a lienor in an ordinary action to foreclose a mortgage does not constitute the commencement of an action by the lienor on its claim, does not toll the running of the statutory time period against the lienor’s claim and that the lien- or’s counterclaim must be filed within the applicable statute of limitations or it will be barred.

In this case there is substantial competent evidence supporting the jury’s finding of an assignment of the mechanics’ lien claim from the original lienor to appellee and the trial court committed no error in denying appellant’s motion for a directed verdict as to that matter. We have also reviewed the other matters urged by appellant for reversal and find that the trial court committed no error in permitting ap-pellee to amend its counterclaim nor in the admissibility of evidence relating to appel-lee’s succession to the rights of the original lienor or otherwise. The judgment below is, therefore,

AFFIRMED.

ORFINGER and SHARP, JJ., concur.

      . Sec. 713.22(1), Fla.Stat. (1979). See also Sec. 713.23, Fla.Stat. (1979).

      . A construction payment bond may be furnished in lieu of a statutory mechanics’ lien on land. See §§ 713.02(6) and 713.23, Fla.Stat. (1979).


author: WENTWORTH, Judge. ROBERT P. SMITH, Jr., Judge,

text:
    CITY OF JACKSONVILLE, a Political Subdivision of the State of Florida, Appellant, v. Dennis M. DOYLE, Jr., Appellee.
    No. WW-13.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1981.
    Dawson A. McQuaig, General Counsel, William Lee Allen, and David C. Carter, Jacksonville, for appellant.
    William L. Coalson, of Greene & Greene, P. A., Jacksonville, for appellee.
   WENTWORTH, Judge.

The City of Jacksonville seeks review of an order enjoining the City from enforcing the existing zoning classification as to ap-pellee’s property. We find record support for the conclusion of the trial judge that the existing zoning classification effectively deprives appellee of all reasonable use of the property, and we affirm the order appealed.

Appellee’s property is a narrow lot in an area, one mile in length, zoned OR (open-rural); the lands on either end of this one-mile strip are zoned so as to permit commercial development, and have been extensively so developed. Because of the narrowness of appellee’s property the city building code would prohibit residential construction had the property not been a “lot of record” prior to the code’s enactment. While such construction was thus permitted, the record contains evidence of current unmarketability of a residence built on the property which supports the finding that the restriction as a practical matter deprives appellee of reasonable use of the property. In addition to the narrowness of the lot, the record supports a conclusion that all reasonable use, including marketability, for such residence was destroyed by the surrounding commercial intrusion and the traffic problems created by the fronting street’s use as a connector road between commercial developments.

A zoning authority’s determinations are of course entitled to great deference, precluding judicial intervention so long as the prescribed restriction is reasonably debatable. Broward County v. Capaletti Brothers Inc., 375 So.2d 313 (Fla. 4th DCA 1979); Alachua County v. Reddick, 368 So.2d 653 (Fla. 1st DCA 1979). Upon appeal, however, the determination of a trial court that a zoning classification precludes any reasonable use of property and has no reasonably debatable relationship to public safety, health or welfare, should be sustained when the record supports that determination. Davis v. Sails, 318 So.2d 214 (Fla. 1st DCA 1975). We conclude that the trial judge correctly applied the law in enjoining the City from enforcing against appellee’s property any zoning classification more restrictive than CPO (commercial-professional-office), which the evidence indicates is the next most restrictive classification.

The order appealed is affirmed.

MILLS, C. J., concurs.

ROBERT P. SMITH, Jr., J., dissents with opinion.

ROBERT P. SMITH, Jr., Judge,

dissenting:

I fear the trial court’s judgment is rather too much influenced by professional opinions that the highest and best financial use of this property is a commercial or professional office building — is it not always so?— and that “it is just a matter of time” before Baymeadows Road, on which the property fronts, will be widened, followed by more traffic and inevitably by commercial development. The land in question can legally and practicably be developed for residential purposes in one of several classifications which are less intensive than commercial-professional use. Moreover, the property is located in a one-mile-long segment of Bay-meadows Road which is insulated by a creek at one end and a major intersection at the other, and in which there is no commercial development whatsoever. In the neighborhood the predominant use — virtually the exclusive developed use, except for a wholesale nursery and a residence where a man sharpens saws for a living — is residential.

The trial court’s judgment requiring rezoning of this property will of course usher in similarly intensive uses all up and down this previously protected segment of Bay-meadows Road, to the doubtful comfort of existing residents. The character of the neighborhood is to be judicially changed now on the ground that adjacent neighborhoods have changed, and this one, too, will inevitably change.

Considering that rezoning was denied by the city’s zoning board, by the urban affairs committee of the city council, and by that legislative body itself, I think rezoning at this time, and the resulting conversion of the area into commercial development, is a fairly debatable proposition, and that circuit court intervention is at least premature and probably wrong in principle. I would therefore sustain the city council’s judgment in the matter and reverse that of the circuit court. Alachua County v. Reddick, 368 So.2d 653 (Fla. 1st DCA 1979).


author: FERGUSON, Judge.

text:
    Armodio RUIZ, a/k/a Roberto Puig, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2416.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1981.
    Rehearing Denied April 8, 1981.
    Bennett H. Brummer, Public Defender and Michael Zelman, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and FERGUSON, JJ.
   FERGUSON, Judge.

Armodio Ruiz was charged by information with carrying a concealed firearm and possession of a firearm by a convicted felon in violation of Sections 790.01 and 790.23, Florida Statutes (1977). Ruiz appeals a jury conviction on both counts claiming lack of fair trial.

The controlling question for review is whether a curative instruction to the jury assured Ruiz of a fair trial by sufficiently dispelling the prejudicial effect of certain remarks made by the prosecutor in his opening statement. We find that it did not.

Ruiz was arrested for not having a valid driver’s license after the truck which he had been driving struck a parked vehicle. Ruiz’s brother was a passenger in the truck. The police officer found a loaded .357 magnum under the driver’s seat and a pistol under the passenger’s seat.

In the opening argument to the jury the prosecutor stated:

“[Ruiz] was placed under arrest for two items; one was no valid driver’s license because he did not show a driver’s license to the police officer when he was asked to produce one. In fact, at this particular point, the defendant gave his name as Jose Rodriguez and subsequently, after running a vehicle check on the tag, he was placed under arrest for auto theft because the truck was reported stolen.”

Ruiz objected to the statement of arrest for auto theft and moved for mistrial pursuant to Fla.R.Crim.P. 3.600(b). The court denied the motion but instructed the jury to disregard the statement:

“THE COURT: Ladies and Gentlemen of the Jury, this defendant is only on trial for the crimes charged in the Information.
As the attorneys stated and as the Court earlier stated, what the attorneys are saying now in their opening statements are not evidence and it is not to be considered by you in arriving at a verdict. Any reference to the ownership of the automobile in question is really not a matter for your consideration and it is not relevant to this case.
Can each and every one of you set aside that matter, put it out of your mind, in accordance with my instructions?
Will you all be able to do that? I see that each of you are shaking your heads in the affirmative.”

Ruiz moved for mistrial subsequent to this instruction and repeated the motion at the close of the state’s case and at the close of all evidence. The court denied each motion.

It is settled Florida law that a new trial may be ordered if a court’s instruction to the jury fails to dispel the likelihood that statements made by a prosecutor will prejudice the jury in its duty to presume the defendant innocent and to weigh impartially the evidence. Oglesby v. State, 156 Fla. 481, 23 So.2d 558 (1945); Thorpe v. State, 350 So.2d 552 (Fla. 1st DCA 1977); Groebner v. State, 342 So.2d 94 (Fla. 3d DCA 1977). See, e. g., Glassman v. State, 377 So.2d 208 (Fla. 3d DCA 1979) and cases cited therein.

In the present case, we find the court’s instruction .did not assure Ruiz of a fair trial. The court’s statement that Ruiz was on trial only for crimes in the information and the request that the jury disregard the prosecutor’s statement that Ruiz had been arrested for driving a vehicle reported stolen failed to destroy the likelihood of jury prejudice against Ruiz. Oglesby, supra.

Reversed and remanded for a new trial.