author: SUNDBERG, Chief Justice.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. JUDGES OF the DISTRICT COURT OF APPEAL, FIFTH DISTRICT, Respondents.
    No. 60035.
    Supreme Court of Florida.
    Nov. 5, 1981.

      Thomas G. Kane of Driscoll, Langston, Layton & Kane, Orlando, for petitioner.
    Jim Smith, Atty. Gen. and Mitchell D. Franks, Asst. Atty. Gen., Tallahassee, for respondents.
   SUNDBERG, Chief Justice.

We here confront the issue of whether the District Court of Appeal, Fifth District, may utilize the en banc rehearing rule as a toehold to extend ad infinitum its jurisdiction whenever intradistrict conflict arises. We hold that it may not.

On May 7, 1980, the district court affirmed without opinion the trial court’s dismissal of plaintiff’s action in Rogers v. State Farm Mutual Automobile Insurance Co., 383 So.2d 1221 (Fla. 5th DCA 1980). Almost two months after the end of the term in which this PCA decision and mandate were issued, Rogers filed a motion for rehearing. The court denied the motion on November 12,1980, because it was not filed within fifteen days of the May 7th decision, the time period prescribed by Florida Rule of Appellate Procedure 9.330(a). Upon its own motion, however, the court decided to reconsider the case, basing its authority to review on Florida Rule of Appellate Procedure 9.331(c), which governs rehearings en banc. It then reversed Rogers as being in direct conflict with one of the court’s later decisions. Rogers v. State Farm Mutual Automobile Insurance Co., 390 So.2d 138 (Fla. 5th DCA 1980).

State Farm filed a petition for common law certiorari with this Court seeking to vacate the en banc court’s November 12th judgment because it lacked jurisdiction. We have treated the petition as an application for writ of mandamus. Our jurisdiction is found under article V, section 3(b)(8), Florida Constitution (1980).

Respondents initially deny the propriety of a writ of mandamus as a remedy in this case, claiming that the district court acted within its discretion in reversing its prior judgment. Yet it is painfully clear that if the district court had no jurisdiction to act as it did, the question of discretion is irrelevant:

Where the action of a ... court in vacating a judgment is wholly void, he has no discretion as to whether or not he will vacate the order vacating the judgment and make an order of reinstatement.
And mandamus will lie to compel a court to vacate a judgment, order, or decree which it was entirely without jurisdiction to make, there being no adequate remedy by appeal, error, or otherwise. .

State ex rel. Melbourne State Bank v. Wright, 107 Fla. 178, 184-85, 145 So. 598, 601 (1932) (citation omitted).

The thrust of respondents’ argument on the merits is that although jurisdiction of the district court would normally end with the term, Florida Rule of Appellate Procedure 9.331(c) extends the jurisdiction of the court indefinitely for the sole purpose of correcting intradistrict conflict by means of en bane rehearings. Respondents reason that because the Supreme Court had jurisdiction to resolve intradistrict conflict on the date rule 9.331 became effective, and because the Committee Note to the rule indicates the en banc proceeding is to be utilized in situations analogous to the Supreme Court’s conflict jurisdiction, therefore the district court is vested with jurisdiction to resolve intradistrict conflict. Furthermore, it is asserted that this jurisdiction is eternal because no time limit is specifically prescribed by the rule.

Without wading through the various shortcomings we perceive in the argument, it will suffice to state that we simply do not view the jurisdictional powers of an appellate court as encompassing such a grandiose temporal spectrum. All things must have end, even a district court’s power to correct inconsistencies. The reasons for this form the bedrock of Anglo-American jurisprudence: “There must be an end of litigation. Public policy, as well as the interests of individual litigants, demands it, and the rule just announced is indispensable to such a consummation.” Lovett v. State, 29 Fla. 384, 401, 11 So. 176, 179 (1892). See also Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 355, 4 L.Ed. 97 (1816). And the “rule” which determined this end is set out in Lovett and several other Florida cases. An appellate court’s power to recall its mandate is limited to the term during which it was issued. See Chapman v. St. Stephens Protestant Episcopal Church, Inc., 105 Fla. 683, 138 So. 630 (1932); Washington v. State, 92 Fla. 740, 110 So. 259 (1926).

We do not see rule 9.331(c) as abrogating this well established common-law precedent that a court’s power to alter its mandate generally ends with the term the mandate issued. Rule 9.331(c) is not a jurisdictional grant; it is a rule of procedure. We therefore conclude that the precedent limiting an appellate court’s jurisdiction is equally applicable to en banc rehearing proceedings.

Because the recall of mandate by the district court was made after the term in which the original mandate issued, the court was without jurisdiction. Its actions are thus void. See Wright. Accordingly, the petition for writ of mandamus is granted, and the writ is issued directing the District Court of Appeal, Fifth District, to vacate its last judgment in this cause and to reinstate its former.

It is so ordered.

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

      . Two terms a year of the district courts are set by statute. Section 35.10, Florida Statutes (1979), reads in part: “Regular terms. — The district court of appeal shall hold two regular terms each year at its headquarters, commencing respectively on the second Tuesday in January and July.”

      . Fla.R.App.P. 9.330(a):
      Time for Filing; Contest; Reply. A motion for rehearing or for clarification of decision may be filed within 15 days of an order or within such other time set by the court. The motion shall state with particularity the points of law or fact which the court has overlooked or misapprehended. The motion shall not re-argue the merits of the court’s order. A reply may be served within 10 days of service of the motion.

      . Fla.R.App.P. 9.331(a), (c):
      En Banc Proceedings: Generally. A majority of the judges of a district court of appeal may order a proceeding pending before the court be determined en banc. A district court of appeal en banc shall consist of the judges in regular active service on the court. En banc hearings and rehearings shall not be ordered unless necessary to maintain uniformity in the court’s decisions.

      Rehearings En Banc.
      (1) Generally. A rehearing en banc may be ordered by a district court of appeal on its own motion or on motion of a party. Within the time prescribed by Rule 9.330 and in conjunction with the motion for rehearing, a party may move for an en banc rehearing solely on the ground that such consideration in necessary to maintain uniformity in the court’s decisions. A motion based on any other ground shall be stricken. A vote will not be taken on the motion unless requested by a judge on the panel that heard the proceeding, or by any judge in regular active service on the court. Judges who did not sit on the panel are under no obligation to consider the motion unless a vote is requested.

      . State Farm Mutual Automobile Ins. Co. v. Bergman, 387 So.2d 494 (Fla. 5th DCA 1980), cert. granted, No. 59,706 (Fla. Feb. 16, 1981).

      . January 1, 1980.

      . The Committee Note reads in part:
      This rule is patterned after the en banc rule of the United States Court of Appeals for the Fifth Circuit and should be used sparingly.
      Subsection (a) provides that a majority vote of a district court is necessary to set a case for rehearing or rehearing en banc. All judges in regular active service, not excluded for cause, will constitute the en banc panel. Counsel are reminded that en banc proceedings are extraordinary and will be ordered only in the enumerated circumstances. The ground, maintenance of uniformity in the court’s decisions, is the equivalent of deci-sional conflict as developed by Supreme Court precedent in the exercise of its conflict certiorari jurisdiction. The district courts are free, however, to develop their own concept of decisional uniformity.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. E. Paul BRIGMAN, Jr., Respondent.
    No. 60356.
    Supreme Court of Florida.
    Nov. 5, 1981.
    John F. Harkness, Jr., Executive Director, and Stanley A. Spring, Staff Counsel, Tallahassee, John B. Root, Jr., Bar Counsel, Orlando, and William H. Davis, Vice Chairman, Ninth Judicial Circuit Grievance Committee “A”, Winter Park, for complainant.
    E. Paul Brigman, Jr., in pro. per.
   PER CURIAM.

This disciplinary proceeding is before the Court on respondent’s petition for review of the referee’s report. The board of governors of the Florida Bar concurs in the referee’s findings and recommendations. We have jurisdiction. Art. V, § 15, Fla.Const.

The Florida Bar filed a two-count complaint charging respondent in count one with violating Florida Bar Code of Professional Responsibility, Disciplinary Rules 1— 102(A)(4), 1-102(A)(5), and 5-104(A), and Florida Bar Integration Rule, article XI, rule 11.02(3); and in count two with violating Disciplinary Rules 1-102(A)(3), 1-102(A)(4), and 1-102(A)(6), and Integration Rule 11.02(3). The referee recommended that respondent be found not guilty as to count one, and the Florida Bar has not challenged this finding. We therefore accept the referee’s recommendation.

As to count two, the referee found that on June 1,1978 respondent was convicted of a felony, grand larceny, for the conversion of $2,130.00 in an adoption matter he was handling. He received a five-year sentence of imprisonment, which has been reduced to three years imprisonment and two years parole. The evidence introduced at Brig-man’s criminal trial showed that approximately twenty other couples had been identified as having sent Brigman money for adoption purposes without receiving a child or having their money returned. The Florida Bar Client Security Fund has paid $10,-730.00 to reimburse persons who lost money as a result of the attorney-client relationship with respondent on similar adoption matters.

After finding respondent guilty of the present charges, the referee found it significant that he had been disciplined twice before. In 1974 this Court publicly reprimanded him for neglecting several matters in which he undertook representation. Florida Bar v. Brigman, 299 So.2d 7 (Fla. 1974). In 1975 the Court suspended Brig-man for six months after his being found guilty on four counts of a six-count disciplinary complaint. Florida Bar v. Brigman, 307 So.2d 161 (Fla.1975). A later order commanded him to show cause why he should not be held in contempt of this Court for violation of that suspension order. Respondent admitted various violations but pleaded ignorance of the requirements violated, showing as evidence an unopened certified mail letter from staff counsel at the Florida Bar, admittedly received but never opened. The Court found him in contempt and suspended him for one year from the date of the new order. Florida Bar v. Brigman, 322 So.2d 556 (Fla.1975).

The referee found respondent guilty of violating the disciplinary rules and integration rule contained in count two on the basis of the felony conviction. Florida Bar v. Newman, 215 So.2d 308 (Fla.1968). Based on this finding and the respondent’s past disciplinary record, the referee recommended disbarment. We agree that disbarment is warranted.

Accordingly, it is the judgment of this Court that respondent, E. Paul Brigman, Jr., should be and hereby is disbarred from the practice of law in the State of Florida. Respondent is ordered to pay costs in the amount of $480.45.

It is so ordered.

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


text:
    Alexander L. COVER, Appellant, v. T G & Y STORE # 1331 and Seaboard Fire & Marine Insurance Company, Appellees.
    No. SS-342.
    District Court of Appeal of Florida, First District.
    Jan. 20, 1981.
    Rehearing Denied July 10, 1981.
    William Fisher, III, of Fisher, Bell, Hahn, Winn & Ptomey, Pensacola, for appellant.
    J. Nixon Daniel, III, of Beggs & Lane, Pensacola, for appellees.
   PER CURIAM.

Claimant appeals the deputy commissioner’s order that 25 percent of claimant’s permanent, total disability award be reduced because of the natural progression of his pre-existing arthritis. There being no competent, substantial evidence to support apportionment pursuant to Section 440.02(19), Florida Statutes (1973), we reverse.

When appellant injured his right knee in 1974, there was evidence he already suffered from arthritis. Dr. Flynn, his second treating physician (the first having retired), stated that based on the first treating physician’s notes, it appeared the trauma aggravated claimant’s arthritis. During neither of two depositions, however, could Dr. Flynn state what percentage of appellant’s disability was attributable to the natural progression of the arthritis.

The deputy entered a compensation order which, among other things, required the parties to depose Dr. Flynn a third time in hopes he would be able to state a percentage for apportionment. That order was appealed, this court resolving the issues other than apportionment. Cover v. T G & Y, 377 So.2d 792 (Fla. 1st DCA 1979). Meanwhile, the apportionment question was remanded to the deputy.

Dr. Flynn was deposed for the third time, and once again he could not separate the arthritis’ natural progression from appellant’s total disability. Nevertheless, the deputy ordered that the PTD award be reduced by 25 percent. We hold however, that unless there is evidence as to the percentage of disability caused by natural progression of a pre-existing condition, no apportionment may be made. Russell House Movers v. Nolin, 210 So.2d 859 (Fla.1968).

Evans v. Florida Industrial Commission, 196 So.2d 748 (Fla.1967), stated at 752 that in cases involving aggravation of a pre-ex-isting condition, the consequent disability falls into three categories: Disability re-suiting directly and solely from the accident regardless of the pre-existing condition; disability resulting from aggravation of the pre-existing condition; and disability resulting from the normal progress the preexisting condition would have made had there been no accident. The Court also established the procedure for determining the proper apportionment (at 754):

In the future, in determining whether and to what extent apportionment should be made it will be necessary to determine the degree or extent of disability falling within the three categories stated earlier herein and to apportion out of an award only that portion of the disability attributable in fact to the normal progress of the pre-existing disease which would have occurred had the aggravating accident never occurred.

Russell House Movers, supra, is more specifically on point. Claimant in that case had a history of back difficulties and injured his back on the job. The deputy apportioned out 50 percent of the injury even though there was no testimony as to percentages. The Court held, at 862, that “a deputy may not apportion where there is no evidence of any percentage of disability from a pre-existing disease or condition. For the Petitioners as well as the Claimant the case on this record is an ‘all or none’ controversy as to allowance of compensation benefits.”

Appellees having presented no evidence as to the percentage of appellant’s total disability attributable to the natural progression of the pre-existing condition, the deputy erred in reducing the award by 25 percent, or by any amount at all.

REVERSED.

ERVIN, SMITH and SHIVERS, JJ., concur.


author: McCORD, Judge.

text:
    David Mark CANTRELL, Appellant, v. STATE of Florida, Appellee.
    No. PP-92.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1981.
    Rehearing Denied June 1, 1981.

      David Mark Cantrell, in pro. per.
    Jim Smith, Atty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Cantrell appeals from the trial court’s order denying his motion for post-conviction relief. He contends that imposition of separate sentences for the offenses of burglary and possession of burglary tools was improper. Under the facts of this case, we agree.

In Foster v. State, 286 So.2d 549 (Fla. 1973), the Supreme Court held that the imposition of separate sentences for breaking and entering with intent to commit a felony and possession of burglary tools was improper. In that case, the only evidence of the crime of possession of burglary tools was a simple screwdriver on the accused’s person when he was apprehended. There was also evidence that the screwdriver was used in the breaking and entering. In concluding that breaking and entering and possession of the burglary tool, to wit: the screwdriver, were two facets of the same transaction, the Supreme Court stated:

. . . For, while it is true that one can be convicted of breaking and entering without being convicted of possession of burglary tools, one cannot be convicted of possession of burglary tools, when those tools are nothing more than a simple screwdriver, without the use of such a tool in a burglary, breaking and entering, et cetera. To rule otherwise, would be to hold that the state has the police power to criminalize possession of a simple household tool, i. e., a screwdriver. It does not. It would be an unconstitutional act — in excess of the State’s police power — to criminalize the simple possession of a screwdriver, just as much as it would be to criminalize the possession of such items as ladies’ hat pins, automobile tire iron kits, et cetera, without first requiring that they first be used as burglary tools. An examination of the burglary tools statute [footnote omitted] reveals the potential for any number of common household tools to be “illegal” unless the statute is construed, in an appropriate case, such as this, to require that for such a tool to be “illegal”, it must be used as a burglary tool — thus becoming a facet of the burglary, breaking and entering transaction, etc. . . . [Emphasis in original.]

Although the court receded from Foster in Jenkins v. Wainwright, 322 So.2d 477 (Fla. 1975), to the extent it conflicted therewith, the court noted in Johnson v. State, 366 So.2d 418 (Fla.1978), that limited to its peculiar facts Foster is still good law.

The facts in the present case are virtually identical to those in Foster. The burglary tools Cantrell possessed were a simple screwdriver, gloves and a flashlight. As in Foster, possession of these otherwise innocent items was unlawful only because the evidence established that these items were in fact used to commit a burglary. See, Preston v. State, 373 So.2d 451 (Fla. 2d DCA 1979).

Since the decision in Foster, the legislature has enacted the single transaction statute, Section 775.021(4), Florida Statutes (Supp.1976), which provides:

Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.

This statute has been interpreted as prohibiting sentencing on lesser included offenses arising out of the same criminal transaction as the higher offense. Sellars v. State, 362 So.2d 33 (Fla. 1st DCA 1978), cert. discharged, 377 So.2d 24 (Fla.1979); McClendon v. State, 372 So.2d 1161 (Fla. 1st DCA 1979); Purvis v. State, 370 So.2d 32 (Fla. 2d DCA 1978). Although Section 775.021(4) might appear to authorize separate sentences herein, we conclude that double jeopardy principles preclude separate convictions.

In State v. Pinder, 375 So.2d 836 (Fla.1979), the Supreme Court agreed with the decision of the Second District in Pinder v. State, 366 So.2d 38 (Fla. 2d DCA 1978), that a defendant convicted of first-degree murder and an underlying felony enumerated in Section 782.04(1), Florida Statutes, could not be convicted and punished for both the felony murder and the underlying felony where the evidence necessary to sustain the murder conviction was based solely upon proof that the killing occurred as a result of the commission of such underlying felony. Because proof of the felony was necessary to sustain the murder conviction, the court determined that under the Block-burger test, imposition of separate punishments violated the double jeopardy clause. In Pinder, the underlying felony was not a Category (4) lesser included offense of the murder charge. Pinder, 366 So.2d at 41. Nonetheless, the court found that double jeopardy precluded cumulative punishments. The present case is analogous. In order to prove the requisite intent for possession of burglary tools, where such tools are mere household tools, the evidence must establish that the items were in fact used to commit or attempt to commit a burglary. We thus read Foster as requiring that burglary or attempted burglary must be established in order to sustain a possession of burglary tool conviction where the tools are mere household items. Because proof of the burglary was indispensable in this case in order to sustain the conviction of possession of burglary tools, under the Pinder rationale, we conclude that it was error to separately punish Cantrell for burglary and possession of burglary tools.

We recognize that this issue was considered and rejected by us in Cantrell’s direct appeal. Cantrell v. State, 368 So.2d 1376 (Fla. 1st DCA 1979), a per curiam affirmance without opinion. However, an illegal sentence constitutes fundamental error, Noble v. State, 353 So.2d 819 (Fla.1978), and we are at liberty to correct our previous error. Flowers v. State, 351 So.2d 387 (Fla. 1st DCA 1977).

We have considered Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). There Justice Black-mun, in a specially concurring opinion, quoted from Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977), as follows:

‘Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.’

Justice Blackmun further stated:

Dicta in recent opinions of this Court at least have suggested, and I now think wrongly, that the Double Jeopardy Clause may prevent the imposition of cumulative punishments in situations in which the Legislative Branch clearly intended that multiple penalties be imposed for a single criminal transaction. See Simpson v. United States, 435 U.S. 6, 11-13 [98 S.Ct. 909, 912-913, 55 L.Ed.2d 70] (1978); Jeffers v. United States, 432 U.S. 137, 155 [97 S.Ct. 2207, 2218, 53 L.Ed.2d 168] (1977) (plurality opinion). I believe that the Court should take the opportunity presented by this case to repudiate those dicta squarely, and to hold clearly that the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed. I must concede that the dicta that seemingly support a contrary view have caused confusion among state courts that have attempted to decipher our pronouncements concerning the Double Jeopardy Clause’s role in the area of multiple punishments.

The legislature, by § 775.021(4), Florida Statutes (Supp.1976), has clearly authorized multiple punishments for two offenses arising out of one criminal transaction unless one of the offenses is a lesser included offense of the other. Since neither offense in the case sub judice nor in Pinder was a lesser included offense of the other, under the rationale of Justice Blackmun’s specially concurring opinion, it would appear that the imposition of separate sentences here (and also in Pinder) did not violate the Double Jeopardy Clause of the United States Constitution. But since (as Justice Blackmun points out) a majority of the United States Supreme Court has not spoken with clarity on this point, we must follow the Supreme Court of Florida’s ruling in Pinder.

The other claims raised in Cantrell’s motion have been examined and are without merit since they are conclusively refuted by the record.

Accordingly, the judgment and sentence for possession of burglary tools are hereby vacated.

SMITH and SHIVERS, JJ., concur.

ON PETITION FOR REHEARING

We have considered the State’s petition for rehearing and request for certification.

We adhere to our original opinion that this case is factually indistinguishable from Foster v. State, 286 So.2d 549 (Fla.1973), and that under the rationale of State v. Pinder, 375 So.2d 836 (Fla.1979), separate punishment for burglary and possession of burglary tools violates double jeopardy.

We agree that recent decisions of the United States Supreme Court indicate that the double jeopardy limitation of the federal constitution does not prohibit cumulative punishment for offenses imposed in a single trial if the legislature has explicitly evidenced an intent to punish cumulatively. Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); Hunter v. State, 420 A.2d 119 (Del.1980), cert. granted 450 U.S. 991, 101 S.Ct. 1689, 68 L.Ed.2d 190 (1981) (vacating judgment and remanding for reconsideration in light of Albernaz, supra) and Brown v. State, 607 S.W.2d 801 (Mo.App.1980), cert. granted, 450 U.S. 1027, 101 S.Ct. 1735, 68 L.Ed.2d 222 (1981) (vacating judgments and remanding for reconsideration in light of Albernaz, supra). See generally, Westen & Drubel, Toward a General Theo ry of Doable Jeopardy, 1978 Supreme Court Rev. 81; Note, Twice in Jeopardy, 75 Yale L.J. 262 (1965). However, since the Florida Supreme Court is free to accord a more restrictive construction to Article I, Section 9, of the Florida Constitution than that given the double jeopardy clause of the Untied States Constitution, we are compelled to follow State v. Pinder, supra. We agree that our decision passes upon a question of great public importance and in accordance with Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v) certify the following question to the Supreme Court of Florida:

The Supreme Court of the United States having ruled in Albernaz v. United States, supra, that the imposition of consecutive sentences for violation in one criminal transaction of two separate statutes is not precluded by the double jeopardy clause of the Fifth Amendment of the United States Constitution, does the Supreme Court of Florida desire to adopt the same construction or a more restrictive construction to Article I, Section 9, of the Florida Constitution?

Petition for rehearing denied.

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

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); See also, Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977).

      . Brown v. State, 206 So.2d 377, 383 (Fla. 1968) defines Category (4) lesser included offenses as:
      ... those offenses which may or may not be included in the offense charged, depending upon, (a) the accusatory pleading, and (b) the evidence at the trial. In this category, the trial judge must examine the information to determine whether it alleges all of the elements of a lesser offense, albeit such lesser offense is not an essential ingredient of the major offense alleged. If the accusation is present, then the judge must determine from the evidence whether it supports the allegation of the lesser included offense.... [Emphasis in original.]
      In Pinder, the indictment charging premeditated murder contained no allegation that the killing had been committed during the perpetration of one of the felonies enumerated in § 782.04(1).


text:
    Robert Lee THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. UU-113.
    District Court of Appeal of Florida, First District.
    March 27, 1981.
    On Rehearing May 11, 1981.
    Michael J. Minerva and Michael Allen, Public Defenders, and Thomas Presnell, Jr. and P. Douglas Brinkmeyer, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Judgment of conviction below is reversed and the cause remanded for a new trial pursuant to Tascano v. State, 363 So.2d 405, reversed, 393 So.2d 540 (Fla.1980), reh. denied, February 27, 1981.

ERVIN, BOOTH and JOANOS, JJ., concur.

ON PETITION FOR REHEARING

We adhere to our opinion of reversal and remand pursuant to Tascano v. State, 363 So.2d 405, reversed, 393 So.2d 540 (Fla., June 5, 1980), reh. denied, February 27, 1981; but, in accord with this court’s opinion in Studstill v. State, 397 So.2d 753 (Fla.1st DCA 1981), we certify to the Supreme Court the following question:

Can an appellate court apply the harmless error doctrine, Section 924.33 and Section 59.041, Florida Statutes (1979), to the failure of a trial court to give the jury instruction required by Rule 3.390(a), Florida Rules of Criminal Procedure, if the appellant’s guilt is clearly established and the appellate court determines the error could not have affected the verdict?

ERVIN, BOOTH and JOANOS, JJ., concur.

Decision affirmed, Fla., 406 So.2d 1117.


author: JOANOS, Judge. PER CURIAM.

text:
    Michael Shay ASHWOOD, Appellant, v. STATE of Florida, Appellee.
    No. UU-114.
    District Court of Appeal of Florida, First District.
    March 27, 1981.
    On Rehearing May 28, 1981.
    Michael J. Minerva, Public Defender and Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Doris E. Jenkins, Asst. Atty. Gen., for appellee.
   JOANOS, Judge.

The defendant raises four points challenging the judgment entered against him after a jury found him guilty of theft. After a review of the record, we find merit in two of the contentions raised. First, the trial court erred in refusing to grant the defendant’s request under Florida Rule of Criminal Procedure 3.390(a) to instruct the jury on the maximum and minimum sentences which may be imposed. According to the Florida Supreme Court’s recent decision in Tascano v. State, 393 So.2d 540 (rehearing denied 1981) an instruction of maximum and minimum sentences is mandatory when requested and failure to give the instruction requires a remand for a new trial.

Although the remand for a new trial renders the second error harmless, we make note of it to avoid the possibility that it is repeated. Directly after the defendant was found guilty, he was sentenced by the judge despite the defendant’s request that he be given an opportunity to present evidence in mitigation of the sentence. If the defendant is sentenced again, subsequent to the new trial, the trial judge should give the defendant a reasonable opportunity to present evidence that would go towards mitigation of his sentence. Culbertson v. State, 306 So.2d 142 (Fla.2d DCA 1975); Fla.R.Crim.P. 3.780(b).

REVERSED and REMANDED for a new trial.

ERVIN and BOOTH, JJ., concur.

ON PETITION FOR REHEARING AND STAY OF MANDATE

PER CURIAM.

We adhere to our opinion of reversal and remand pursuant to Tascano v. State, 363 So.2d 405, reversed, 393 So.2d 540 (Fla. 1980), reh. denied, February 27, 1981; but, in accord with this court’s opinions in Studstill v. State, 397 So.2d 753 (Fla.1st DCA 1981), and Thompson v. State, 405 So.2d 990 (Fla.1st DCA 1981), we certify to the Supreme Court the following question:

Can an appellate court apply the harmless error doctrine, Section 924.33 and Section 59.041, Florida Statutes (1979), to the failure of a trial court to give the jury instruction required by Rule 3.390(a), Florida Rules of Criminal Procedure, if the appellant’s guilt is clearly established and the appellate court determines the error could not have affected the verdict?

ERVIN, BOOTH and JOANOS, JJ., concur.


author: PER CURIAM. WENTWORTH, Judge,

text:
    Ronald Douglas ABRAM, Appellant, v. STATE of Florida, Appellee.
    No. TT-193.
    District Court of Appeal of Florida, First District.
    April 14, 1981.
    Michael E. Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
   PER CURIAM.

Abram appeals two judgments and corresponding sentences rendered pursuant to two jury verdicts. Appellant was found guilty of burglary of a dwelling on the first verdict and involuntary battery on the second. Both offenses occurred during the same criminal episode. At the same sentencing hearing, the trial court first adjudicated Abram guilty of burglary of a dwelling and sentenced him as an adult to 15 years imprisonment. Moments later, the trial court adjudicated Abram guilty of involuntary sexual battery, and again sentenced him as an adult to 15 years imprisonment. The two sentences imposed were to run concurrently. Abram was 18 years old at the time of the sentencing. Prior to his trial he had not been previously found guilty of a felony, nor had he been previously classified as a youthful offender under Section 958.04, Florida Statutes (1979), nor had he been “adjudicated delinquent for an act which would be a capital, life, or first-degree felony if committed by an adult.” Section 958.04(2)(b).

We reverse the first sentence since Abram met all the criteria required to be classified as a youthful offender. § 958.-04(2), Fla.Stat. (1979). The trial court had a mandatory obligation to sentence Abram as a youthful offender on the first verdict since Abram had not yet been convicted on the second offense. But cf. Goodson v. State, 392 So.2d 1335 (Fla.1st DCA 1980); Barnhill v. State, 393 So.2d 557 (Fla.4th DCA 1980).

The second sentence was correctly imposed. Abram had been “previously found guilty of a felony” within the meaning of Section 958.04(2)(a) by virtue of the first adjudication for burglary of a dwelling. See Killian v. State, 387 So.2d 385 (Fla.2d DCA 1980); Goodson v. State, supra; Barnhill v. State, supra. A defendant who has been found guilty of more than one felony at the time of sentencing is not entitled to a mandatory classification as a youthful offender even though multiple convictions arise out of a single episode. Barnhill v. State, supra.

On rehearing the Barnhill court certified the identical issue to the Florida Supreme Court. Barnhill v. State, 393 So.2d 557 (Fla.4th DCA 1981). Although we feel bound by the precedent established by Goodson involving the same issue, we view the dissenting opinion in the case at bar as well reasoned and worthy of consideration. Accordingly, we join both Goodson and Barnhill by certifying the following question to the Supreme Court of the State of Florida as one of great public interest:

[Is] a person excluded from a mandatory classification under Section 958.04(2)(9), Florida Statutes (Supp.1978) when prior to sentencing the offender has been found guilty of a qualifying felony under the act and has simultaneously been found guilty of other felonies?

The sentence imposed as to the first sentence is reversed and remanded to the trial court for an appropriate sentence.

ERVIN and SHAW, JJ., concur.

WENTWORTH, J., concurs and dissents.

WENTWORTH, Judge,

concurring and dissenting.

I concur in the result reached by the majority insofar as it requires appellant’s classification as a youthful offender, and disposition pursuant to Chapter 958, Florida Statutes, for the offense of burglary of a dwelling. However, I would also require such classification and disposition for the offense of involuntary sexual battery. Both of appellant’s convictions arose from a single criminal episode; his intent to commit a sexual battery within the dwelling was a necessary element (“intent to commit an offense therein”) of the burglary offense.

Subsequent offender statutes have consistently been construed as requiring that the subsequent offense be committed after the prior conviction. See, e. g., Shead v. State, 367 So.2d 264 (Fla.3d DCa 1979). The rationale for such a construction is that the statute intends to encourage first offenders to reform by warning of severer penalties for subsequent offenses. Karz v. State, 279 So.2d 383 (Fla.2d DCA 1973). While Lucas v. State, 376 So.2d 1149 (Fla. 1979), reaches a contrary result regarding “prior convictions” as aggravating circumstances within the purview of Florida’s death penalty statute, I am of the opinion that Chapter 958, the Youthful Offender Act, is more akin to a subsequent offender statute. Section 958.021 indicates that the act provides “an additional sentencing alternative” in order “to improve the chances of correction and successful return to the community of youthful offenders . . . . ” I thus disagree with Barnhill v. State, 393 So.2d 557 (Fla.4th DCA 1980), and would rule that an offender’s contemporaneous conviction of multiple offenses within a single criminal episode does not preclude the youthful offender classification under § 958.04(2), Florida Statutes.

I also note that neither Goodson v. State, 392 So.2d 1335 (Fla.1st DCA 1980), nor Killian v. State, 387 So.2d 385 (Fla.2d DCA 1980), indicate whether the multiple offense in those cases arose from a single criminal episode or multiple criminal episodes. In either event, I do not believe that the legislature intended that the application of Chapter 958 would depend on such artificial temporal distinctions as are employed in those cases, in Barnhill, and by the majority in the present case.

I would reverse the sentences imposed and remand the cause for resentencing in accordance with Chapter 958, as to both offenses.

      . We find, despite appellant’s contention to the contrary, that the trial court’s adjudication as to this offense was in conformity with the verdict. The judgment itself indicates that the appellant was adjudicated guilty of burglary of a dwelling, a second degree felony.

      . Goodson and Barnhill are distinguishable from the instant case on this point. Both Goodson and Barnhill held that a trial judge was not required to sentence a defendant as a youthful offender when the appellant had been found guilty of more than one felony at the time of sentencing. In both cases the respective defendants were apparently first adjudicated guilty on each felony before any sentencing occurred. Here, the defendant’s sentencing on the first adjudication preceded the second adjudicated felony.


text:
    John DOE a/k/a Jimmy (John Wesley Washington), Appellant, v. STATE of Florida, Appellee.
    No. UU-415.
    District Court of Appeal of Florida, First District.
    June 1, 1981.
    Michael Allen, Public Defender, and Margaret Good and Melanie Hines Alford, Asst. Public Defenders, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Doris Jenkins, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellant having properly preserved the point on appeal, we reverse and remand for further proceedings pursuant to Tascano v. State, 393 So.2d 540 (Fla.1980); however, in accordance with this court’s opinion in Studstill v. State, 397 So.2d 753 (Fla. 1st DCA, 1981), we certify the following question to the Florida Supreme Court:

Can an appellate court apply the harmless error doctrine, Section 924.33 and Section 59.041, Florida Statutes (1979), to the failure of a trial court to give the jury instruction required by Rule 3.390(a), Florida Rules of Criminal Procedure, if the appellant’s guilt is clearly established and the appellate court determines the error could not have affected the verdict?

McCORD, BOOTH and SHIVERS, JJ., concur.

Decision affirmed, Fla., 406 So.2d 1118.


author: PER CURIAM. ROBERT P. SMITH, Jr., Chief Judge.

text:
    Donald Layton BRADDOCK, Appellant, v. Laura Turnage BRADDOCK, Appellee.
    No. WW-121.
    District Court of Appeal of Florida, First District.
    June 16, 1981.
    Rehearing Denied Aug. 4, 1981.
    Edward M. Booth of Arnold, Stratford & Booth, P. A., Jacksonville, for appellant.
    James G. Roberts of Roberts & Roberts, P. A., Jacksonville, for appellee.
   PER CURIAM.

For the sole purpose of permitting the trial court to correct an apparent arithmetical error granting the husband a special equity in the amount of $4,453.98 instead of $3,453.98, the judgment is REVERSED. It is otherwise AFFIRMED.

ROBERT P. SMITH, Jr., LARRY G. SMITH and JOANOS, JJ., concur.

ON PETITION FOR REHEARING

ROBERT P. SMITH, Jr., Chief Judge.

Donald Braddoek’s petition for rehearing calls attention to the decision of the Second District Court of Appeal in Landay v. Landay, 400 So.2d 43 (Fla. 2d DCA 1981) and asks that we recognize that our affirmance of the chancellor’s judgment in this case is inconsistent with Landay’s holding that

a spouse who furnishes some but not all of the consideration for entireties property acquires a special equity or vested interest in the property equal to the ratio which his or her contribution bears to the entire consideration.

In the case before us the chancellor awarded the appellant husband a special equity in the homeplace in the amount of $4,453.98, the precise amount of the cash payments he made for a down payment on the house just before and just after the marriage. The chancellor declined to award the husband a greater equity based on its proportion of the whole at the time the marriage home was bought.

We affirmed the chancellor’s decision because it seemed to us that his well-reasoned order comprehensively addressed the money issues and did so without apparent error. While a Landay-type adjustment in equities may well be appropriate in some cases, we decline to order such nice calculations in every case, preferring to leave those issues principally in the hands of the judge whose task it is to determine the special equity issues in the context of all others arising out of a marriage dissolution. The chancellor’s order in this case illustrates the complexity and, perhaps, the futility of deciding these issues wholly as a mechanical or arithmetical exercise. The chancellor wrote:

Each of the parties has claimed a special equity in and to the marital home over and above the interest held pursuant to the deed. The husband’s claim is based upon his contribution of monies towards the purchase, improvement and maintenance of the home from funds he alleged were owned by him prior to and unconnected to the marriage of the parties. The wife claims a special equity in the marital home based upon her extraordinary contributions of services, labor and industry performed by her on the marital home.
The husband testified that prior to the marriage of the parties he anticipated the amount of funds it would take to repair the home and he “earmarked” his premarital funds with regard to such purpose. The husband was unable to produce any substantial documentary evidence corroborating that testimony. He testified that he maintains certain monies in his sole and separate savings account prior to the marriage which he “earmarked” for repairs and improvements to the home. The husband did not produce any records of the savings account at the trial of this cause. The wife contradicted the husband’s testimony. The wife testified the husband repeatedly advised the wife during the marriage that the parties would live on his income as a lawyer. All repairs or improvements to the home would be made from his income. The Court finds the wife’s testimony to be more believable with regard to this issue. Additionally, the Court is aware from the documents introduced into evidence that many of the repairs and improvements made to the home were commenced some several years after the parties married. The husband told the wife on numerous occasions that improvements and remodeling of the marital home would have to wait because no funds were available. This contradicted the husband’s testimony that he had “earmarked” and set aside funds for repairs, improvements and remodeling. If the husband had these funds available, why didn’t he use them when they were needed?
The husband mixed and commingled the funds he acquired prior to the marriage with the income he earned during the marriage. The husband could not distinguish or separate the funds acquired prior to the marriage from the funds acquired or earned during the marriage. The husband was unable to prove his claim that substantial sums of monies were invested in the home from sources clearly unconnected to the marital relationship. The husband’s testimony with regard to this issue was clearly and sufficiently rebutted by the testimony of the wife.
The wife testified that she contributed substantial time and efforts in making drapes, painting, wallpapering and other activities which improved the marital home. The Court finds that these activities were not of an extraordinary nature. However, the wife also made substantial contributions in drafting plans for the remodeling of the home, meeting with architects and builders. The wife also obtained prices from various merchants with regards to the remodeling costs.
The Court finds the husband is entitled to a special equity in the following amounts:
a. $1,000.00 for the binder payment made by the husband prior to the marriage of the parties.
b. $3,453.98 paid by the husband at the time of the closing from his sole funds.
The Court finds neither party is entitled to any additional special equity.
Except for the sum of Four Thousand Four Hundred Fifty-three and 98/100 ($4,453.98) Dollars paid by the husband as mentioned hereinabove, neither party has established by the greater weight of the evidence a special equity in the marital home. There was no unrebutted or persuasive showing by the husband that the monies expended by the husband on the marital home were from a source clearly unconnected to the marital relationship. It appeared to the Court that most of the funds claimed by the husband as a special equity were generated from his earnings as a lawyer during the marriage while his wife was performing normal household and child-rearing duties. The wife did not establish any extraordinary contributions of labors of services towards the acquisition or maintenance of the marital home. This home was purchased, maintained and remodeled by the joint efforts of the parties working together as a team.

The petition for rehearing is DENIED.

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


text:
    James HIGH, Petitioner, v. Robert BRADLEY and Travelers Indemnity Company, a foreign corporation, Respondents.
    No. 81-682.
    District Court of Appeal of Florida, Third District.
    July 7, 1981.
    Rehearing Denied Nov. 25, 1981.
    Horton, Perse & Ginsberg, Gilmour, Morgan & Rosenblatt, Miami, for petitioner.
    Henderson & Willing, Miami, for respondents.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

Petition for Writ of Certiorari is granted, the Order Denying Motion to Compel Attendance at Deposition is quashed, and the cause is remanded for further proceedings with directions that the witness produce for inspection Robert Bradley’s report to his insurer. See Surette v. Galiardo, 323 So.2d 53 (Fla. 4th DCA 1975); Travelers Indemnity Co. v. Fields, 262 So.2d 222 (Fla. 1st DCA 1972).


author: SCHWARTZ, Judge.

text:
    Marshall PETERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 80-398.
    District Court of Appeal of Florida, Third District.
    July 14, 1981.
    Rehearing Denied Nov. 25, 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 SCHWARTZ, NESBITT and BASKIN, JJ.
   SCHWARTZ, Judge.

Peterson appeals from his conviction of attempted burglary. We reverse for a new trial because improper references were made before the jury to the defendant’s invocation of his Miranda rights to terminate and to refuse at any time to respond to custodial interrogation.

The defendant was apprehended at 12:30 in the morning inside a building which had been broken into. He was wearing gloves. The arresting officer testified that after being read his Miranda rights

the defendant said that he would answer some questions, but that he would stop when he didn’t want to answer any more.

Defense counsel at once objected and moved for a mistrial. The motion was denied.

The officer then related the following concerning the defendant’s statement.

Okay, I asked him what he was doing in the building, first of all. He said that he had been walking by and he saw the door open and he went in.
I asked him why he was wearing gloves and he stated that he used them in his work.
I asked him what kind of work he did. He said he was a roofer. I looked at my watch and asked him, ‘Well, it’s 12:30 in the morning,’ and he said, ‘Well, I use them in my work.’ And I did not ask him any further questions than that.

Subsequently, in response to a question about later interrogation, the officer said,

A. I advised him that he had the Constitutional Right to remain silent. That he did not have to answer my questions and that he did have a right to have an attorney present. And I asked him if he wanted to answer a few questions for me. He said, ‘Okay, I will.’
Q. What questions did you ask him, if you recall?
A. Basically the same ones about the gloves more than anything and again he replied that he used them in his work, but he would not explain, you know, the time of day. [e. s.]

A motion for mistrial was again promptly made and denied.

It is clear that each motion for mistrial should have been granted, and that each denial requires reversal.

1. The Florida cases unequivocally establish the impropriety of any reference before the jury to the defendant’s assertion of his fifth amendment rights to decline to answer police questioning. E. g., Bennett v. State, 316 So.2d 41 (Fla.1975); Barnes v. State, 375 So.2d 40 (Fla. 3d DCA 1979). It is said in Miranda itself that “[t]he mere fact that [the defendant] may have answered some questions . . . does not deprive him of the right to refrain from answering any further inquiries ...” Miranda v. Arizona, 384 U.S. 436, 445, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 707 (1966). Accordingly, even if interrogation is once begun, the defendant may cut it off at any time and for any reason. E. g., Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); Thompson v. State, 386 So.2d 264, 266 (Fla. 3d DCA 1980), review granted, Fla.Case no. 58,599, January 14, 1981. Thus, when Peterson told the officer that “he would stop when he didn’t want to answer any more,” he did no more than assert a right which Miranda and the constitution had granted him. The officer’s statement to the jury that he had done so was consequently indefensibly improper. Bennett v. State, supra.

2. The officer’s subsequent reference to the actual exercise of this right to discontinue responding to questions, in the testimony that, although Peterson did tell him generally about the gloves, “he would not explain . . . the time of day,” both exacerbated the effect of the first improper statement and was independently erroneous. On this issue, Thompson v. State, supra, is controlling. The opinion in Thompson fully discusses and squarely rejects the state’s contention, reasserted here, that declining to answer further questions in the course of interrogation constitutes only an admission inferable from silence, rather than an exercise of the privilege against self-incrimination, to which reference is prohibited. We adhere to that conclusion.

The state also argues that the references to Peterson’s silence, even if incorrect, were merely “harmless error” and should therefore not result in reversal. We would be inclined to agree that, in the light of the overwhelming evidence of Peterson’s guilt, the offending statements were indeed harmless in the sense that their presence or absence could not have affected the jury verdict of guilty. But it is very clear that this conclusion makes no difference in the resolution of the present case. This is because the supreme court has adopted a purely prophylactic rule that any reference to the assertion of fifth amendment rights, if preserved by a prompt motion for mistrial as in this case, ipso facto requires that a new trial be granted, specifically without consideration of whether so-called “harmless error” is or is not involved. Clark v. State, 363 So.2d 331 (Fla.1978); Willinsky v. State, 360 So.2d 760 (Fla.1978); Shannon v. State, 335 So.2d 5 (Fla.1976); Bennett v. State, supra. As in numerous previous instances, e. g., Jordan v. State, 400 So.2d 174 (Fla. 3d DCA Case no. 79-1606, opinion filed, June 23, 1981); Thompson v. State, supra; Ruiz v. State, 378 So.2d 101 (Fla.3d DCA 1979); Barnes v. State, supra; Knight v. State, 374 So.2d 1065 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 642 (Fla.1980), we follow that rule.

Reversed and remanded.

      . Out of the jury’s presence, the trial judge did caution the officer and the prosecutor as follows:
      Now, I surely hope that at no point is there ever comment that he at any given point declined to answer anything or ceases answering or gave any indication that he was ceasing answering or anything that even smells of it.
      The trial judge issued similar admonitions, with similar lack of effect, in Thompson v. State, infra, at 386 So.2d 264, 266, and Ruiz v. State, 378 So.2d 101, n.1 (Fla. 3d DCA 1979).

      . The statement in Thompson that the defendant “would not talk any further,” and the one here that “he would not explain . .. the time of day” are conceptually identical.

      . As indicated by the majority’s denial of rehearing in Thompson, we do not believe, as Judge Melvin did in his dissenting opinion, 386 So.2d at 267, that Antone v. State, 382 So.2d 1205 (Fla. 1980), cert. denied, 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980) is contrary to this holding. The statement challenged in Antone was simply that
      Mr. Antone did not volunteer any information except he made one statement. Mr. Antone told me that he was a hundred percent Sicilian and Sicilians do not fink.
      The supreme court found
      this testimony permissible as it recounted Antone’s affirmative statement. In fact, Antone did not stand mute; Arwine’s testimony comments not on Antone’s silence but on what he said.

        382 So.2d at 1213. The contrast between these circumstances and those in Thompson and this case is evident. In Antone there was no reference whatever to the crucial factor that the defendant had asserted his fifth amendment right to decline to answer an inquiry during the course of questioning and, indeed, no indication that any such questioning had ever taken place. Since, decisively unlike our cases, the fact that a Miranda situation was involved was not even implied to the jury, the Ciark-Bennett line of cases was plainly inapplicable. (Because the supreme court has granted review in Thompson on the basis of an asserted conflict with Antone, it will soon be known whether our analysis of the distinctions between the cases is a correct one.)

      . Contrary to the appellee’s assertion, the supreme court did not in any way depart from this doctrine in Sired v. State, 399 So.2d 964 (Fla. Case no. 50,905, opinion filed, April 9, 1981). In that case, the defendant did not preserve the fifth amendment point at trial and was thus not entitled to an “automatic reversal” under Clark v. State, supra. The court then found that the reference was, in any event, only “harmless error” under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). It is plain that the discussion of this issue concerned only whether fundamental error was committed under the United States constitution so as to require reversal in the absence of objection. As is shown by the total lack of reference to Shannon and the similar cases holding that “harmless error” is irrelevant under Florida law when there is a timely motion for mistrial, Sired has no effect upon that rule.


text:
    Narciso R. VERA, Appellant, v. STATE of Florida, Appellee.
    No. VV-210.
    District Court of Appeal of Florida, First District.
    July 17, 1981.
    Michael F. Allen, Public Defender, Louis G. Carres, Asst. Public Defender, and Theodore E. Mack, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The trial court erred in refusing to instruct the jury on maximum and minimum penalties, as required by Tascano v. State, 393 So.2d 540 (Fla. 1980). Accordingly, the judgment of conviction is vacated and the case remanded for new trial.

From our interpretation of the Tascano ruling, in conjunction with Justice Alderman’s dissent in that case, the trial court’s error in this respect cannot be deemed harmless. However, we do certify to the Supreme Court of Florida that the following question is of great public importance:

Does the harmless error doctrine, as enunciated by § 59.041, Florida Statutes (1979), apply to refusal of the trial court to instruct on the maximum and minimum sentences which may be imposed for the offense for which the accused is then on trial pursuant to Florida Rule of Criminal Procedure 3.390(a)?

REVERSED and REMANDED.

ROBERT P. SMITH, Jr., C. J., and JOA-NOS and THOMPSON, JJ., concur.

Decision affirmed, Fla., 406 So.2d 1120.


author: HENDRY, Judge.

text:
    The STATE of Florida, Appellant, v. Pedro RAMOS, Appellee.
    No. 80-845.
    District Court of Appeal of Florida, Third District.
    July 28, 1981.
    Rehearing Denied Nov. 25, 1981.
    Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen., for appellant.
    Raymond J. Takiff, Coconut Grove, and Richard Hersch, Miami, for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   HENDRY, Judge.

Appellant State of Florida challenges a circuit court order suppressing evidence seized by police from defendant’s home under the following circumstances. After receiving information from a confidential source that defendant would deliver cocaine concealed in a hollowed-out book, police staked-out defendant’s home. Defendant was seen leaving the house carrying a book. The police arrested defendant a few blocks away, finding in his possession weapons and, inside the book, a brick of white powder later determined to be cocaine. The police believed that more contraband would be found in the house. The police took defendant immediately to his residence, entered the house, and found three people inside. The residence was then secured and an officer was sent to obtain a search warrant. The affidavit for the warrant did not reveal that police had already entered the premises. For three hours the police waited in the living room with defendant and the other occupants. When the warrant was delivered to them, police searched the rest of the house, seizing several items. At a hearing before the trial court, the defendant successfully moved to suppress the evidence seized from the house.

The state argues that the evidence should not have been suppressed because it did not result from the concededly illegal entry, but from the search pursuant to a legal warrant. The state insists that the evidence was not “tainted” since it was discovered by virtue of a warrant issued on the basis of information obtained independent of the illegal entry, citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The entry and occupancy of the house in this case plainly constituted a Fourth Amendment search and seizure. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); United States v. Allard, 634 F.2d 1182 (9th Cir. 1980). Because the state has not argued that the warrantless search and seizure was justified by exigent circumstances, the search and seizure was per se illegal under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The issue, then, is whether the conceded illegality of the entry taints evidence actually found by the police, not during the illegal search and seizure, but under a subsequently acquired warrant. Since no Florida court has ruled on this precise issue, we examine federal law on the subject. The Sixth Circuit’s opinion in United States v. Griffin, 502 F.2d 959 (6th Cir. 1974), was rendered on facts virtually indistinguishable from the present case. Government agents in Griffin illegally entered and secured an apartment without a warrant. Contraband was in plain sight. As in the present case, an agent was then set to procure a warrant, based on an affidavit citing facts and information independent of those discovered as a result of the illegal entry. The court, noting that police clearly may not enter a home without a search warrant or exigent circumstances simply because they think they have probable cause to believe evidence of crime may be found therein, held the subsequently obtained search warrant was insufficient to erase the taint of illegality:

The assertion by police (after an illegal entry and after finding evidence of crime) that the discovery was “inevitable” because they planned to get a search warrant and had sent an officer on such a mission, would as a practical matter be beyond judicial review. Any other view would tend in actual practice to emasculate the search warrant requirement of the Fourth Amendment.

502 F.2d at 961 (emphasis supplied); United States v. Allard, 634 F.2d 1182, 1186 (9th Cir. 1980).

We agree with the court’s holding in Griffin and apply it to the facts of this case. This defendant’s residence and its contents were illegally searched and seized for over three hours prior to the delivery of a warrant. The police cannot be permitted to search and seize persons and homes in the absence of a warrant or exigent circumstances while they seek some independent evidentiary basis to justify a search warrant. Such after-the-fact justifications are anathema to the Fourth Amendment warrant and reasonableness requirements. United States v. Griffin, supra. Any other ruling would, as a practical matter, permit the police to disregard the warrant requirement altogether, by illegally seizing and searching vehicles or houses, and seeking warrants only when such illegal activities produce indications or clues that contraband will be found by a more detailed search. Although we appreciate the difficulties the police face in balancing effective law enforcement with complex Fourth Amendment rules, illegal entries into homes cannot be sanitized by the simple expedient of seeking warrants after the illegal entry has occurred and the police are confident that contraband can be found. Moreover, failure of the police to disclose the ongoing search and seizure in their affidavit for the search warrant frustrated the very purpose of the warrant requirement — to place a neutral magistrate between the public and police conduct. See United States v. Allard, 634 F.2d 1182 (9th Cir. 1980).

We therefore hold the evidence was not discovered by means sufficiently irrela-tive of the primary taint, since no independent intervening act of the defendant purged the original illegality. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Norman v. State, 379 So.2d 643 (Fla.1980); Sheff v. State, 329 So.2d 270 (Fla.1976); Engle v. State, 391 So.2d 245 (Fla. 5th DCA 1980). Absent exigent circumstances, when a defendant establishes that the state illegally entered his home, evidence discovered from such entry must be suppressed even though a search warrant is obtained prior to the actual discovery and seizure of the evidence. The motion to suppress evidence seized from defendant’s residence was properly granted.

Affirmed.

      . At the same hearing the court denied defendant’s motion to suppress the items seized at the time of his arrest. That ruling is not challenged on this appeal.

      . In addition, the trial court specifically held that exigent circumstances did not justify the initial entry, a ruling this court may not disturb unless shown to be clearly erroneous. McNamara v. State, 357 So.2d 410 (Fla.1978).

      . In Sheff v. State, 329 So.2d 270 at 274 (Fla. 1976), the Florida Supreme Court appeared to hold that evidence seized from a motel room via a belatedly obtained search warrant was properly admitted, based on the dissipation-of-taint theory. However, the court’s holding is not directly applicable to the facts of this case given the transient nature of a motel room, as opposed to a private dwelling. See 329 So.2d at 273.

      .Significantly, the United States Supreme Court has never recognized an exception to the warrant requirement which would allow police to secure premises in anticipation of a search warrant.


text:
    Alfredo LOPEZ-GOMEZ, M. D., Appellant, v. Cecilia DIAZ and Andres Diaz, her husband, Appellees.
    Nos. 80-1973, 80-2501.
    District Court of Appeal of Florida, Third District.
    Aug. 18, 1981.
    Rehearing Denied Oct. 16, 1981.
    Thornton & Herndon, Miami, for appellant.
    Deutsch & Blumberg, Jeanne Heyward, Miami, for appellees.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Devlin v. McMannis, 231 So.2d 194 (Fla.1970); City of Tamarac v. Garchar, 398 So.2d 889 (Fla. 4th DCA 1981); Lapidus v. Citizens Federal Savings and Loan Association, 389 So.2d 1057 (Fla. 3d DCA 1980); Insurance Company of North America v. Edmondson, 354 So.2d 887 (Fla. 1st DCA 1977).


author: HURLEY, Judge. DOWNEY, Judge,

text:
    STATE of Florida, Appellant, v. Daniel Patrick RAFFERTY, Appellee.
    No. 80-1369.
    District Court of Appeal of Florida, Fourth District.
    Sept. 23, 1981.
    Rehearing Denied Nov. 18, 1981.
    Jim Smith, Atty. Gen., Tallahassee and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellant.
    Howard M. Zeidwig, Fort Lauderdale, for appellee.
   HURLEY, Judge.

The state appeals from an order suppressing the results of blood and urine tests taken at the time of defendant’s arrest. We reverse.

Daniel Patrick Rafferty was charged with two counts of manslaughter — DWI, contrary to Section 860.01(2), Florida Statutes (1979). At the time of his arrest, Raf-ferty consented to taking two breathalyzer tests which resulted in zero readings. He then agreed to submit to blood and urine tests which indicated an extremely high volume of methaqualone. Rafferty subsequently moved to suppress the test results claiming that his consent to the testing was invalid since it had been given at a time when he was not in full control of his faculties and was thus unable to execute an intelligent and voluntary waiver.

At the suppression hearing, the defense called a toxicologist who testified that the amount of methaqualone found in Rafferty’s blood would normally produce a high level of intoxication which would make voluntary consent difficult. The state made no attempt to rebut Rafferty’s contention and, in fact, the arresting officer testified that Rafferty had demonstrated no comprehension of the gravity of the accident. As a result, the court determined that Rafferty’s consent to the testing had not been freely, voluntarily, and knowingly given, and, therefore, it granted the motion to suppress.

We believe that in light of the severity of the accident, the zero readings yielded by the breathalyzer tests, and Rafferty’s apparent lack of comprehension, the arresting officer had probable cause to believe that Rafferty had been driving under the influence of a drug. Given these circumstances, the testing for drugs is constitutional even without consent or a warrant. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

Accordingly, the order under review is reversed and the cause is remanded.

REVERSED AND REMANDED.

MOORE, J., concurs.

DOWNEY, J., concurs specially with opinion.

DOWNEY, Judge,

concurring specially:

Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), has eliminated any question of a constitutional prohibition against the taking of blood over an arrestee’s objection in order to test it for intoxicating substances when the taking is done under appropriate circumstances. However, Florida has by Section 322.261, Florida Statutes (1979), prohibited the taking of blood in order to determine the weight of alcohol in a driver’s blood when the driver objects to said taking. This statutory prohibition against taking blood samples over objection is restricted to examinations for the alcoholic content of a driver’s blood and does not include examinations for the content of controlled substances in a driver’s blood. See: 1979 Op.Atty.Gen.Fla. 079-4 (January 19, 1979). Thus, in Florida there is neither a constitutional nor a statutory prohibition against taking blood from a person under arrest for driving a motor vehicle while intoxicated over his objection in order to determine if the person is intoxicated from ingestion of a controlled substance.

Under the facts of this case the police were entitled to have a blood sample taken, and tested for controlled substances, whether appellee consented or not (and even if he had objected to the taking). However, the issue presented to the trial court was whether appellee had consented, the state contending he had and appellee contending he had not because he could not, as a result of his incapacitation. No one argued that Section 322.261 was inapplicable and no one argued that the State had a right to take a sample of appellee’s blood to test it for the presence and amount of a controlled substance under Schmerber, supra. In this court the State has shifted its ground somewhat and concedes that appellee did not consent, but the State goes on to argue that appellee did not need to consent because Section 322.261(l)(c) provides that any person incapable of consenting is deemed not to have withdrawn his statutorily implied consent to the test. This argument is irrelevant because Section 322.261 applies only to blood tests for alcohol. So we see that the two vital points involved in this case, viz., a) the inapplicability of Section 322.261 to a blood test for controlled substances and b) the absence of any constitutional prohibition of such a test, as shown in Schmerber, which would seem to require a reversal, have never been presented to either the trial court or this court.

Therefore, while I concur in the judgment of reversal, I suggest that the ends of justice would be best served if on remand the trial court considered the evidence adduced at the suppression hearing in the light of Schmerber v. California, supra.


author: CAMPBELL, Judge.

text:
    Robert John MORGAN, Appellant, v. STATE of Florida, Appellee.
    No. 80-1063.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1981.
    Rehearing Denied Nov. 20, 1981.

      Kurt Marmar, Coral Gables, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

Appellant was charged with trafficking in cannabis in excess of 2,000 pounds, but less than 10,000 pounds. Appellant was found guilty following a jury trial that commenced April 1,1980. Of the numerous points raised on appeal, two merit discussion: the trial court’s exclusion of all the defense witnesses for a discovery disclosure violation and the court’s failure to instruct the jury on the maximum penalty for the offense charged.

A defendant is required to provide the state with a reciprocal witness list within seven days after receipt of the state’s witness list. Fla.R.Crim.P. 3.220(b)(3). After the state had called its last witness and rested, appellant delivered a list of witnesses for the purpose of impeaching the state’s last witness. After hearing argument from counsel, the court ordered the exclusion of the witnesses listed by the defense. In so doing, the trial judge noted that even though the list was tardy, the court would have allowed defense witnesses to testify if it had been provided before the state rested. We find no reversible error on this point and hold that the trial court acted within its discretion in ordering the exclusion. Though the witnesses were purportedly to be used to impeach the last witness called by the state, we note that there was no proffer made of what they would have testified to and there is nothing in the record to indicate that any of the witnesses were present in court and available to testify.

The second point to be addressed is the trial court’s failure to instruct the jury on the maximum penalty for the offense charged. The Florida Supreme Court has held, “[U]pon request of either the state or the defendant, it is mandatory that an instruction be given on the maximum and minimum sentences which may be imposed.” Tascano v. State, 393 So.2d 540, 541 (Fla.1980). See Fla.R.Crim.P. 3.390(a). Although the court indicated that Tascano should be applied prospectively, it also held that the decision would be applicable to “all others who have preserved this point on appeal.” 393 So.2d at 541. On the authority of Tascano, the supreme court reversed and remanded two cases for new trials when specific requests were made for instructions on sentences. Knight v. State, 401 So.2d 1333 (Fla.1981) (consolidated appeals).

As this trial commenced before the effective date of Tascano, appellant must show that this point has been properly preserved on appeal. At the charge conference, appellant’s trial counsel made a demand “for all the penalties” and objected to the court’s stated refusal to instruct “upon the penalties involved.” However, after refusing at the trial conference to give instructions on penalties, the trial judge changed his mind while charging the jury and instructed on the mandatory minimum sentences applicable. It is apparent from the record that the trial judge felt he had conformed to defense counsel’s request for instructions on penalties when he instructed on the mandatory minimum penalties and the fines involved for both the crime charged and the lesser included trafficking offense. After the instructions were given, the court allowed defense counsel an opportunity to state any specific objections to the charges for the record, at which time counsel stated only that he renewed his previous objections, failing to point out that the court had omitted instructions on the maximum penalties applicable. Thus, there was no attempt to articulate the error for the judge so that it could be corrected at trial.

Rule 3.390(d) states:

No party may assign as error grounds of appeal the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects, and the grounds of his objection. Opportunity shall be given to make the objection out of the presence of the jury, (emphasis added)

Although we recognize the mandatory import of this rule, as emphasized by Tascano, it remains clear from that decision that, as applied retroactively, it is the defendant’s burden to direct the court’s attention to any omission in instructing the jury on maximum and minimum penalties. See Kelly v. State, 389 So.2d 250 (Fla.2d DCA 1980).

Notably, in Welty v. State, 402 So.2d 1159, (Fla.1981), the supreme court refused to reverse appellant’s conviction for failure to instruct on the maximum penalty. Several times during trial the jury was advised that the maximum penalty for first-degree murder is death. The supreme court held that the trial court’s failure to instruct on the applicable penalties when the jury was otherwise informed of them during the trial did not constitute reversible error. Id., at 1161-1162. Similarly, in this case the jury was informed of the maximum penalties by defense counsel during his closing argument.

Finding no reversible error on these or any other points raised by appellant, wé affirm appellant’s conviction and sentence.

OTT and RYDER, JJ., concur.


text:
    Stephen W. TITTLE, Marty Eugene White, and Ricky Vickers, Appellants, v. STATE of Florida, Appellee.
    Nos. WW-130, WW-352 and XX-164.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1981.
    Rehearing Denied Dec. 4, 1981.

      Michael E. Allen, Public Defender, and Thomas Presnell, Jr., Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Tittle, White and Vickers appeal the sentences entered against them following their pleas of guilty to the charge of armed robbery. Appellant Tittle also appeals the sentence entered against him following his plea of guilty to the additional charge of aggravated battery. Each appellant contends that the trial judge erred in refusing to sentence him as a youthful offender under Section 958.04, Florida Statutes (1979). We affirm as to appellant Tittle and reverse as to appellants White and Vickers.

Section 958.04(l)(c) provides in part that “no person who has been found guilty of a capital or life felony may be classified [as] a youthful offender . . . . ” The trial judge concluded that this statute was applicable because armed robbery with a firearm was a life felony. However, armed robbery is not a “life felony” nor can it be enhanced to such by operation of 775.087(l)(a), Florida Statutes. Richardson v. State, 398 So.2d 1010 (Fla. 1st DCA 1981). Accordingly, the trial judge erred in refusing to treat appellants White and Vickers as youthful offenders.

Our reversal does not apply to appellant Tittle. A defendant does not qualify for youthful offender treatment under the mandatory provisions of that act if he had been “previously found guilty of a felony.” 958.04(2)(a), Florida Statutes (1979). The record reflects that Tittle was simultaneously adjudicated guilty of armed robbery and aggravated battery and was thereafter sentenced. Under these circumstances, appellant Tittle was properly excluded from mandatory classification as a youthful offender. Barnhill v. State, 393 So.2d 557 (Fla. 4th DCA 1980); Goodson v. State, 392 So.2d 1335 (Fla. 1st DCA 1980), approved, 403 So.2d 1337 (Fla.1981).

Accordingly, we affirm with respect to appellant Tittle and reverse and remand for the trial court to resentence appellants White and Vickers in a manner consistent with this opinion.

BOOTH, SHAW and WENTWORTH, JJ., concur.


text:
    ST. PETERSBURG JUNIOR COLLEGE FACULTY ASSOCIATION, Appellant, v. ST. PETERSBURG JUNIOR COLLEGE BOARD OF TRUSTEES, and the Public Employees Relations Commission, Appellee.
    No. AB-388.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1981.
    John J. Chamblee, Jr. and Robert A. Miles of Frank, Chamblee & Kelly, Tampa, for appellant.
    James M. Blue and Paul Platte of Hogg, Allen, Ryce, Norton & Blue, Tampa, for appellee St. Petersburg Junior College Bd. of Trustees.
    Frederick G. Bohannon, Tallahassee, Staff Counsel, for appellee Public Employees Relations Commission.
   PER CURIAM.

The St. Petersburg Junior College Faculty Association sought to represent certain college employees. A representation-certification election was held; however, 15 ballots, enough to affect the outcome of the election, were challenged based on voter eligibility.

On 1 December 1980, a hearing was held with regard to the challenged ballots. The Faculty Association subpoenaed seven College employees to testify at the hearing. One College employee, Mr. Herrington, Assistant to the President for Employee Relations, was called to testify on behalf of the College. On 22 December 1980, the Faculty Association, on behalf of the seven employees it had subpoenaed, filed against the College an unfair labor practices charge pursuant to Section 447.501, Florida Statutes, alleging that these seven employees had been docked one day’s pay for appearing on behalf of the union, while individuals who testified on behalf of the employer suffered no such loss of pay. The affidavits attached to the charge stated that one day of annual leave had been charged to the personal leave account of each of the seven employees and the parties concede that this is what actually occurred. The resolution of the Public Employees Relations Commission (“PERC”) is not affected by this disparity.

PERC dismissed the charge stating that: [t]he Association appears to assert a general proposition that an employer who continues the pay of absent employees while testifying on behalf of the employer must also continue the pay of absent employees while testifying on behalf of an opposing party. The Commission can find no support for this general proposition as a matter of law.

PERC also relied on the analysis found in General Electric Company and Julius Borbely, 230 N.L.R.B. 683 (1977) in reaching its conclusion. We approved reference to cases decided under the National Labor Relations Act in resolving cases of first impression under Florida’s Public Employees Relations Act in Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1978). We agree with the basic rationale of General Electric Company and Julius Borbely and its predecessor, Electronic Research Company, 190 N.L.R.B. 778 (1971), that an employer is not required to subsidize its opponent by paying the salary of the union witnesses. For that reason we affirm the order of the Public Employees Relations Commission summarily dismissing the unfair labor practices charge filed by the Association.

AFFIRMED.

McCORD, MILLS and THOMPSON, JJ., concur.


text:
    EAST COAST INSURANCE COMPANY, Appellant, v. George COOPER and Ruth I. Cooper, his wife; Raymond E. Barry and Citation Agency, Inc., Appellees.
    Nos. 80-1438, 80-1439, 80-2459 and 81-27.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 1981.
    Rehearing Denied Dec. 4, 1981.
    Greene & Cooper and Robyn Greene and Joan Bolotin, Pyszka & Kessler, Miami, for appellant.
    Knight, Peters, Pickle, Niemoeller & Flynn and Nancy Schleifer, Podhurst, Or-seck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel D. Eaton, Beckham & McAli-ley, Fowler, White, Burnett, Hurley, Baniek & Strickroot and A. Blackwell Stieglitz, Miami, for appellees.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. 6551 Collins Avenue Corp. v. Millen, 104 So.2d 337 (Fla. 1958); Borenstein v. Raskin, 401 So.2d 884, 886 (Fla.3d DCA 1981); Atlantic Coast Development Corp. v. Napoleon Steel Contractors, 385 So.2d 676, 680 (Fla.3d DCA 1980); Golden v. Harrell, 147 So.2d 350 (Fla.2d DCA 1962), cert. denied, 155 So.2d 149 (Fla. 1963) and 155 So.2d 150 (Fla. 1963).


text:
    Johnny BAKER, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1620.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 1981.
    Rehearing Denied Nov. 25, 1981.

      Bennett H. Brummer, Public Defender and Mary Catherine Bonner, Sp. Asst. Pub-lie Defender, for appellant.
    Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   PER CURIAM.

The defendant’s conviction of first degree murder and the underlying felony from which the murder resulted are affirmed, but the separate sentence for the underlying felony of robbery is vacated. State v. Hegstrom, 401 So.2d 1343 (Fla.1981).

As modified, the defendant’s judgment of conviction and sentence are affirmed.


author: PER CURIAM,

text:
    NORTH AMERICAN LIFE AND CASUALTY COMPANY, Appellant, v. Satenig BALIKIAN, as next friend and Guardian of Hasmig Balikian, Incompetent, Appellee.
    No. 80-2031.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 1981.
    Rehearing Denied Dec. 4, 1981.
    McDermott, Will & Emery and Byron B. Mathews, Jr., Miami, for appellant.
    Pelzner, Schwedock, Finkelstein & Klaus-ner and Joseph L. Finkelstein, Miami, Shan-ley & Fisher and Harold H. Fisher, Newark, N. J., for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM,

Affirmed. Financial Fire and Casualty Company v. Callaham, 199 So.2d 529 (Fla.2d DCA 1967); Service Life Insurance Company v. Branscum, 234 Ark. 463, 352 S.W.2d 586 (1962). See, Section 627.666, et seq., Florida Statutes (1975).


author: BASKIN, Judge.

text:
    Emil PFISTER and Grace Pfister, his wife, Appellants, v. PARKWAY GENERAL HOSPITAL, INC., Appellee.
    No. 80-2201.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 1981.
    Rehearing Denied Dec. 4, 1981.

      Greene & Cooper, Joan M. Bolotin and Marc Cooper, Philip Auerbach, Miami, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Michael Murphy, Miami, for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

Appellant Emil Pfister underwent surgery at Parkway General Hospital. Two weeks later, as he chatted with the wife of the patient in the next bed, a floor-buffing machine broke apart and crashed into his bed. During the trial of his action against the hospital, the court instructed the jury that as a matter of law, the hospital was negligent. The jury then deliberated concerning whether that negligence was a legal cause of the loss, injury, or damage sustained by Emil Pfister. The court instructed, “If the greater weight of the evidence does not support the claim of the Plaintiffs, then such negligence was not a legal cause of loss, injury or damage.” The jury returned a verdict in favor of Parkway General Hospital, Inc.

Appellant seeks reversal on two grounds: first, he contends the verdict was against the weight of the evidence. Next, he argues that the court’s refusal to charge the jury not to reduce compensatory damages by amounts he received from collateral sources was error. We affirm.

First, appellant contends that in light of the directed verdict establishing liability and the uncontroverted evidence of injury to him, the verdict in favor of appel-lee was improper. We disagree. Although the question concerning the hospital’s negligence was determined as a matter of law, whether that negligence caused injury was a fact to be decided by the jury. Questions of proximate cause are generally decided by a jury unless the issue is so clear that reasonable men cannot differ. Helman v. Seaboard Coast Line R. Co., 349 So.2d 1187 (Fla.1977); Brightwell v. Beem, 90 So.2d 320 (Fla.1956). The evidence presented by appellant was controverted by appellee. A review of the record reveals that a jury of reasonable people could have returned a verdict for appellee. See Midstate Hauling Company v. Fowler, 176 So.2d 87 (Fla.1965); Biltmore Terrace Association v. Kegan, 130 So.2d 631 (Fla.3d DCA 1961).

Next, we consider appellant’s contention that the court should have cautioned the jury against reductions for collateral source payments. The court instructed on negligence, legal cause, and damage. The jury found either that the hospital’s negligence caused no injury or damage or that the negligence was the proximate cause of damage but that appellant’s receipt of payments from a collateral source negated further payment. The latter finding would have been improper, but because a special interrogatory verdict was not used, it is impossible for us to determine which ground the jury relied upon in reaching its verdict. In the absence of an objection to the use of the general verdict, the “two issue” rule dictates that reversal would be improper because appellant is unable to demonstrate prejudice. Whitman v. Castlewood International Corp., 383 So.2d 618 (Fla.1980); Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1978).

Although we agree that the court’s failure to instruct against reducing damages for collateral source payments could require reversal, where, as here, the verdict may have been based on either of two grounds, we must affirm.

In light of the court’s instruction to the jury that if it found for Parkway General Hospital it should not consider the question of damages, and without a special interrogatory verdict to enable us to determine upon which of the two theories the jury based its verdict, we find no error.

Affirmed.


author: SHIVERS, Judge.

text:
    FLORIDA FARM BUREAU MUTUAL INSURANCE COMPANY, Appellant, v. James M. GASKINS, d/b/a Osteen & Gaskins Chemical Supplies, Appellee.
    No. AB-296.
    District Court of Appeal of Florida, First District.
    Oct. 16, 1981.
    Rehearing Denied Dec. 4, 1981.
    Barry D. Graves, of Ritch & Graves, P. A., Gainesville, for appellant.
    W. C. O’Neal, of Chandler, O’Neal, Gray, Lang & Haswell, Gainesville, for appellee.
   SHIVERS, Judge.

Insurer appeals from a final declaratory judgment finding that a general comprehensive liability insurance policy provided coverage for damages resulting from the insured’s delivery of the wrong product to a customer. We affirm.

Appellant Florida Farm Bureau Mutual Insurance Company issued a general liability policy to Appellee James Gaskins, who was doing business as Osteen & Gaskins Chemical Supplies, a chemical supply retail distributor. On May 10, 1979, Eugene Clark, one of Gaskins’ customers, sent an employee to appellee’s store to obtain an insecticide to be applied to his tobacco crop. The chemical delivered to Clark’s employee was not the requested insecticide. Instead, a herbicide with a similar name was delivered. Clark applied the herbicide to his tobacco crop which subsequently destroyed the entire crop. Clark then demanded damages from appellee and the parties settled the claim. In turn, appellee sought indemnity from appellant, claiming liability for the misdelivery of the herbicide and the resulting crop damage was covered under the general terms of the policy.

Appellant sought a declaratory judgment as to whether the policy provided coverage for the misdelivery of the herbicide, maintaining there was no coverage under the policy because the accident fell under the policy’s “products hazards” and “completed operations” exclusions. These coverages were available at an additional premium but were not purchased by appellee. By the general liability terms of the policy issued to appellee, appellant agreed in the policy to pay:

... on behalf of the insured all sums, except punitive damages, unless required to be included by law, which the insured shall become legally obligated to pay as damages because of (1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or (2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period.

This coverage was limited by the “products hazards” and “completed operations” exclusions. The policy defined “product hazard” as:

... the handling or use of, the existence of any condition in or a warranty of goods or products manufactured, sold, handled or distributed by the named insured, if the accident occurs after the insured has relinquished possession thereof to others and away from the premises owned, rented or controlled by the insured.

The policy defined “completed operations” as:

.. . operations, if the accident occurs after such operations have been completed or abandoned at the place of occurrence thereof and away from the premises owned, rented or controlled by the insured.

Since the accident occurred after appellee had relinquished possession of the herbicide and the damage occurred off the premises, appellant argued there was no coverage based upon the exclusions. Appellee argued that the tort occurred on the premises when the sale and misdelivery of the product was made to its customer.

The trial court found there was coverage under the general liability terms of the policy because the negligent act occurred on the premises when appellee sold the herbicide rather than the requested insecticide to Clark, despite the fact that the final result of appellee’s negligence occurred when Clark applied the herbicide to his tobacco crop.

This appeal poses the question of whether appellee’s liability arose out of products sold and/or after it had completed operations away from the store premises as defined in the policy’s products hazards and completed operations exclusions. In construing an insurance policy for the purposes of determining coverage, the policy must be considered in its entirety and clear and unambiguous language should be accorded its natural meaning. Miller Electric Company v. Employers Liability Assurance Corporation, 171 So.2d 40 (Fla. 1st DCA 1965). Here, the definition of products hazards and completed operations as contained in the policy are sufficiently clear and unambiguous. If liability arose out of products manufactured, sold, handled or distributed by appellee, if the accident giving rise to liability occurred after possession of the goods had been relinquished, and if the accident occurred away from appellee’s premises, then the policy’s exclusions deny coverage. However, we conclude that the exclusions are not applicable under these facts because liability arose out of appellee’s on-premise negligence in delivering the wrong product to Clark and not out of the product delivered.

The policy states that it does not apply to products hazards and completed operations. Appellee’s liability did not arise out of products or after it completed operations. After Clark ordered the insecticide, appellee’s employee failed to notice that the herbicide which was delivered did not conform to what was ordered. It should be clear that appellee’s liability would not be within the products hazard exclusion because it did not arise out of products. The herbicide which was delivered was not the cause of the damage. The herbicide was merely the incidental instrumentality through which the damage was done. The proximate cause of the damage was appellee’s negligence in delivering the wrong product to Clark and appellee’s liability arose out of the accident which occurred at the time of the negligent misdelivery. Moreover, since the negligence giving rise to appellee’s liability occurred at the time of the misdelivery and sale, it is also clear that liability occurred prior to appellee’s completion of operations and on the store premises despite the fact that the final result of appellee’s negligence occurred elsewhere.

Therefore, the trial court was correct in finding that appellee’s loss was covered under the general liability policy issued by appellant to appellee. Appellee’s request for an attorney’s fee award for his counsel’s appellate services is granted and the case is remanded for determination of the amount. Stonewall Ins. Co. v. Gay Mechanical Contractors, Inc., 351 So.2d 403 (Fla. 1st DCA 1977).

AFFIRMED.

McCORD, J., and ERNEST E. MASON (Circuit Judge, Retired), Associate Judge, concur.