author: OVERTON, Justice.

text:
    Beverly A. CLAUGHTON, Petitioner, v. Edward N. CLAUGHTON, Respondent.
    No. 55227.
    Supreme Court of Florida.
    Oct. 23, 1980.
    Rehearing Denied March 2, 1981.
    Mark Hicks of Daniels & Hicks, and Paige & Catlin, Miami, for petitioner.
    Marion E. Sibley and Allan M. Glaser of Sibley, Giblin, Levenson & Glaser, Miami Beach, for respondent.
   OVERTON, Justice.

This cause is before the Court on petition for certiorari to review the decision of the district court of appeal in Claughton v. Claughton, 361 So.2d 752 (Fla.3d DCA 1978), which conflicts with Seale v. Seale, 350 So.2d 96 (Fla. 1st DCA 1977). We have jurisdiction under article V, section 3(b)(3), Florida Constitution (1979), as it existed prior to April 1, 1980.

The issue presented to the district court in an interlocutory appeal was whether the trial court, in entering a dissolution of marriage judgment, may reserve jurisdiction to determine issues relating to alimony and property rights and thereafter make an award of alimony to the wife after she has remarried.

The district court answered the question in the negative, finding no type of alimony could be awarded after remarriage. We quash in part and approve in part.

At the outset, it should be understood that both parties agreed to the use of this split procedure of entering a judgment for dissolution of the marriage, with a reservation of jurisdiction to determine alimony and property interests.

The district court’s conclusion was correct insofar as it involved any alimony necessary for the support of the wife. Certainly, temporary alimony payments which had been established by previous court order were terminated by the remarriage. Also barred is any facet of periodic or lump sum alimony which is predicated on the need to support the wife. Carlton v. Carlton, 87 Fla. 460, 100 So. 745 (1924).

We find, however, that remarriage of the wife does not bar consideration of lump sum alimony to the extent it is used to provide the wife with an equitable share of the assets of the parties accumulated during their marriage, as distinguished from her need for support. In Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), we cited Yandell v. Yandell, 39 So.2d 554, 556 (Fla.1949), as approving lump sum alimony where the wife had “assisted her husband in accumulating property.... ” We do not determine in the instant case that the wife is necessarily entitled to any lump sum alimony; rather, we hold only that the trial judge in the instant case has jurisdiction to award such lump sum alimony if it is found necessary to “compensate the wife for her contribution to the marriage” in accordance with the standards set forth in Canakaris v. Canakaris; see Brown v. Brown, 300 So.2d 719 (Fla.lst DCA 1974). We emphasize that any award made in this instance would be based on her equitable share of the assets resulting from her marital contribution rather than her need for support.

Similarly, when jurisdiction has been reserved, remarriage does not bar consideration by the trial judge of special equity interests as we have defined them in Duncan v. Duncan, 379 So.2d 949 (Fla.1980). Any “special equity” which the wife may have in marital real property is a vested interest, which, by its nature, would not be terminated by the remarriage of the spouse.

Although we approve the granting of this final dissolution with a reservation of jurisdiction to subsequently determine property, custody, and support issues, we believe trial judges should avoid this split procedure. The general law and our procedural rules at both the trial and appellate levels are designed for one final judgment and one appeal. Splitting the process can cause multiple legal and procedural problems which result in delay and additional expense to the litigants. This split procedure should be used only when it is clearly necessary for the best interests of the parties or their children. The convenience of one of the parties for an early remarriage does not justify its use.

In conclusion, we approve the decision of the First District Court of Appeal in Seale v. Seale to the extent it allows an award of lump sum alimony after remarriage, but disapprove to the extent it would hold the use of this split procedure to be proper in all cases. For the reasons expressed, we approve in part and quash in part the opinion of the district court in the instant case and remand for further proceedings consistent with this opinion.

It is so ordered.

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


source: Caselaw Access Project

author: ENGLAND, Justice.

license: Public Domain

text:
    AMERICAN BANKERS INSURANCE CO., Continental Insurance Company, Petitioners, v. Vella LITTLE, Respondent. Joseph J. NEUMAN, Petitioner, v. Joe Patti SEAFOOD, Incorporated, and Auto-Owners Insurance Company and Industrial Relations Commission, Respondents.
    Nos. 56816, 57851.
    Supreme Court of Florida.
    Oct. 30, 1980.
    Rehearing Denied March 9, 1981.
    Russell A. Ortmayer of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, Miami, for American Bankers Ins. Co.
    William R. Davenport, Gulf Breeze, for Joseph J. Neuman.
    Joseph J. Finkelstein of Pelzner, Schwe-dock & Finkelstein, P. A., Miami, for Vella Little.

      William H. Clark of Clark, Partington, Hart & Hart, Pensacola, for Joe Patti Seafood, Inc., Auto-Owners Ins. Co. and Industrial Relations Commission.
   ENGLAND, Justice.

These cases arise from a 1973 amendment to Florida’s workmen’s compensation law, section 440.15(10) of the Florida Statutes, permitting Florida employers and carriers to offset their disability payments by the amount of an injured employee’s weekly federal social security benefits. This legislation was prompted by a 1965 amendment to the federal Social Security Act which allows the states to claim an offset for federal disability payments, but in the absence of such action, continues the prior practice of permitting the Social Security Administration to claim an offset for state-generated benefits. Significantly, both the Florida and the federal statutes contain a “hold harmless” provision designed to ensure that injured employees do not receive less under the combined acts than they would under either. The question for decision is whether Florida employers and insurance carriers are entitled to the social security offset authorized by section 440.-15(10) for current payments arising out of an accident which occurred prior to that statute’s effective date.

American Bankers Insurance Co. v. Little

Vella Little was permanently and totally disabled in 1966. At the time her average weekly wage was $58.84, of which amount she was entitled to receive no more than eighty percent in combined federal social security and state workmen’s compensation benefits, or $47.07 per week. After the enactment of section 440.15(10), American Bankers, the employer’s carrier, learned that Little was receiving social security payments of $47.03 per week, and claimed an offset of that amount against their liability. This reduced her compensation payments to $.04 per week. Little does not dispute these computations but asserts that her aggregate benefits were in fact reduced by the offset, because the Social Security Administration had failed to claim the offset to which it was entitled for American Bankers’ disability payments during the period of time prior to the enactment of section 440.15(10).

Neuman v. Joe Patti Seafood, Inc.

Joseph Neuman was left permanently and totally disabled from an industrial accident in 1972. At the time of his accident Neuman’s average weekly wage was $114.62, of which amount he was entitled to receive no more than eighty percent in combined social security and state workmen’s compensation benefits, or $91.70 per week. After the enactment of section 440.15(10), the carrier learned that the total social security and workmen’s compensation payments to Neuman exceeded $91.70 per week and sought to offset its payments to the extent of that excess. In so doing, the carrier reduced its payments from $56 to $42.09-a reduction of $13.91 per week. Neuman points to record evidence that the Social Security Administration had taken an offset for state-generated benefits in computing their payments, and he argues that another offset by the carrier as authorized by section 440.15(10) will effectively cause a reduction in benefits since both sources of disability benefits will be claiming offsets to his detriment.

There is really no dispute concerning the purpose of the interplay between federal and state law with regard to offsetting benefits. The parties agree that the change in federal law was designed to give states the benefit of offsets which formerly were taken by the Social Security Administration for persons disabled in job-related injuries. They also agree that each statute contains a hold harmless provision fashioned to prevent a double offset resulting in decreased benefits and that the State of Florida properly took advantage of the change in federal law by enacting its offset provision, effective on July 1, 1973.

Little and Neuman both claim that retroactive application of the section 440.15(10) offset impairs their substantive rights as of the time of the injury. They cite to Sullivan v. Mayo, 121 So.2d 424 (Fla.1960), in which we held that a party’s substantive rights under the workmen’s compensation law vest on the date of the accident. Mere procedures for the enforcement of substantive rights, however, may be changed retroactively since “no one has a vested right in any given mode of procedure.” Walker v. Laberge, Inc. v. Halligan, 344 So.2d 239, 243 (Fla.1977). It is clear to us that neither Little’s nor Neuman’s substantive rights have been impaired by the implementation of the section 440.15(10) offset. The claimants only vested right in this case is to receive a certain total dollar amount in combined state and federal disability payments and neither has demonstrated that he or she has suffered any diminution of those benefits by reason of the subsequent enactment and implementation of the offset authorized by section 440.-15(10). Both before and after the enactment of Florida’s offset provision, claimants who have been injured receive the same maximum percent of weekly earnings. The hold harmless provisions in both the federal and state statutes effectively guarantee payment of the maximum disability benefits available under either social security or workmen’s compensation. Accordingly, the mere shift in the source of payments from predominantly state-generated payments to predominantly federally-generated payments is procedural and in no way affects any vested right that an injured employee has as a result of his or her disability.

The only legitimate dispute between the parties in these two suits is whether the facts reveal an unwarranted reduction of benefits to either injured employee. Vella Little claims a reduction of benefits in fact because the Social Security Administration has never taken the offset to which it was entitled between 1966 and the commencement of American Banker’s offset. Joseph Neuman claims a putative reduction in benefits, arguing that the Social Security Administration’s continuation of its offset creates a presumption that the federal weekly computation base or “average current earnings” is greater than his state-determined “average weekly wage” and that this disparity results in lower disability payments. Neither parties’ contentions warrant the requested relief.

Vella Little has simply had a windfall since 1966 because the Social Security Administration never claimed the offset to which it was entitled. That fact hardly justifies our concluding, as a matter of law, that the enactment of the Florida statute affects her vested rights.

Joseph Neuman similarly fails to demonstrate any reduction in benefits in fact, for two reasons. First, there is no record support for his contention that federally-determined average current earnings are higher than state-determined average weekly wage. Second, the assertion that the federal government continues to take an unwarranted offset of social security payments is a matter within his own competence to control — that is, he simply need write the Social Security Administration that the Florida carrier has taken advantage of the combined federal-Florida statutes to eliminate the federal offset.

We recognize that few citizens are capable of protecting their rights fully when correspondence and negotiation with the federal government are involved. It may be unrealistic to believe that any individual — much less Neuman, who is functionally illiterate — could notify the proper authority in the Social Security Administration in time to avoid a double offset. It would therefore be beneficial to injured workers if a carrier were obliged to notify the Social Security Administration of its intent to offset, and thus insure that any federal offset has ceased before its own is implemented. Carriers, most of whom handle large numbers of worker’s compensation claims and who in all events control the commencement of their offsets, can more readily ascertain the proper office to notify, and could communicate by form letter. That avenue, of course, is not available to individual claimants. Resolution of this problem, however, is a matter for the legislature and not this court.

Accordingly, we quash the order of the Industrial Relations Commission in American Bankers, and we remand to a deputy commissioner for proceedings consistent with this opinion. We deny certiorari in Neuman.

It is so ordered.

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

      . 42 U.S.C. § 424a (1976). The United States Supreme Court upheld this offset provision in Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971).

      . § 440.15(10)(a), Fla.Stat. (1975) & 42 U.S.C. § 424a(d) (1976).

      . There is a difference in computation between the federal formula, which considers the “average current wage,” and the state calculation, which utilizes the “average weekly wage.” A 1975 amendment to the Florida statute allows the employee the higher figure. § 440.-15(10)(a), Fla.Stat. (1975). This “hold harmless” provision makes it unnecessary to decide what effect, if any, this discrepancy might have on claimants’ rights to compensation. See Patrick Fruit Co. v. Boykins, IRC Order 2-3904 (Sept. 11, 1979) (discussion of the proper calculation). See also Winn Dixie Stores, Inc. v. Crawford, 376 So.2d 482 (Fla. 1st DCA 1979); Husky Indus, v. Mixon, IRC Order 2-3905 (Sept. 11, 1979).

      . “Both Social Security and Workmen’s Compensation are social welfare legislation ... Most of the argument for the Workmen’s Compensation offset came from employers who generally pay all of the cost for Workmen’s Compensation and half of the cost of Social Security benefits. Their argument before Congress was that they were paying twice for the same injury.” Lofty v. Richardson, 440 F.2d 1144, 1151-52 (6th Cir.), cert. denied, 404 U.S. 985, 92 S.Ct. 443, 30 L.Ed.2d 369 (1971). See also the legislative history of the offset provision contained in Senate Rep. No. 404, 89th Cong., 1st Sess. (1965) U.S. Code Cong. & Admin. News 1965, p. 1943.

      . See statutes cited in note 2 supra.

      . See note 3 supra.

      . At oral argument, Little advanced a unique “estoppel” theory, contending that the Social Security Administration’s failure to take the offset now barred the carrier from taking its offset. We find no authority for the proposition that a federal agency can estop the operation of a state statute; indeed, one recent United States Supreme Court decision indicates that federal actions cannot impair traditional, legitimate, and important functions of state government. National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). Moreover, the federal government apparently can now take the offset even if we were to deny it to the carrier. The government may recoup past overpayments unless Little can prove that she was without fault in receiving them and that their recovery would contravene the humanitarian purposes of the Social Security Act. 42 U.S.C. § 404(a)(1), (b) (1976).

      . Because we allow the application of the offset, we need not decide the question presented by petitioner Neuman with respect to attorney’s fees.


text:
    D’ANGELO PLASTERING COMPANY and United States Fidelity and Guaranty Company, Petitioners, v. Richard ISAAC and the Florida Industrial Relations Commission, Respondents.
    No. 57641.
    Supreme Court of Florida.
    Dec. 4, 1980.
    Rehearing Denied March 3, 1981.

      Summers A. Warden, Miami, for petitioners.
    Joseph J. Finkelstein of Pelzner, Sehwe-dock & Finkelstein, Miami, for respondents.
   OVERTON, Justice.

Respondent Richard Isaac suffered two separate injuries, both of which were found compensable under Florida’s workmen’s compensation law by the judge of industrial claims and the Industrial Relations Commission. There is no dispute concerning the first injury, but the employer and carrier argue that Isaac’s being struck over three months later by a car while he was attempting to cross a street was not a natural consequence of the first injury. We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution (1972), and we find that the second injury is not compensa-ble under the workmen’s compensation law.

The facts are basically not in dispute. Isaac, while employed by D’Angelo Plastering Co., sustained injuries to his left heel bone and back following a fall from a scaffold on September 27, 1977. Clearly this accident arose out of and in the course of his employment. On January 13, 1978, Isaac was still wearing a back brace and, according to his testimony, using crutches. He attempted to cross at the intersection of two streets and in doing so was struck by a car driven by one G. Williams. There is no dispute between the parties here that Williams, and not Isaac, was negligent. Isaac testified that while crossing the street he felt a sudden pain in his back and that, had it not been for this pain, he would have been able to avoid the onrushing car. The judge concluded:

These facts lead me to find that Mr. Isaac’s actions did not contribute to the accident so as to break the chain of causation in that he attempted a normal crossing, and, but for the sharp pain which he developed during his attempted crossing and his awkwardness or inability to react and/or move normally due to his injuries and use of crutches, the subsequent accident could have been avoided.

This is an unusual type of case. It is not a case in which the compensable injury allegedly was the medical cause for the claimant to fall, collapse, deteriorate, or otherwise suffer complications. It deals, instead, with a “miscellaneous consequence” having some causal connection with the compensa-ble injury, an area of compensation law where, as one commentator puts it, “the difficulty of expressing a body of coherent principles is at the maximum.”

We have had occasion to judge the consequences of a claimant by his own negligence breaking the chain of causation from the compensable injury. In Johnnie’s Produce Co. v. Benedict & Jordan, 120 So.2d 12 (Fla.1960), the employee suffered a com-pensable ankle injury while working for one employer. While working for a second employer, he jumped off a truck and, due at least in part to the weak ankle, fell and injured his back. We cited with approval the following language of the Florida Industrial Commission:

It is strenuously argued by claimant and the second employer that this is a case which falls within the rule as stated by Larson in his treatise on Workmen’s Compensation Law. Essentially, the rule is that when the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment unless it is the result of an independent intervening cause attributable to claimant’s own negligence or misconduct.... Assuming, arguendo, that claimant did have a weak right ankle, the cause of the second accident can, in no way, be attributed to the first accident. If a claimant, knowing of certain weaknesses, rashly undertakes activities likely to produce harmful results, the chain of causation is broken by claimant’s own negligence.

Id. at 13.

We specifically adopted Larson’s “direct and natural result” test for subsequent injury or aggravation related in some way to the primary injury in Sosenko v. American Airmotive Corp., 156 So.2d 489 (Fla.1963).

In the instant case, the respondent was in the position of any other pedestrian on crutches or otherwise limited in his movements. The respondent is not alleged to have been negligent, although we note that the judge did not specifically find that the claimant was exercising reasonable care in attempting to cross the street on crutches. In fact, the judge noted from the police report that the “negligence was on the part of the vehicle.” It is clear the judge accepted and relied upon this uncontroverted assertion of negligence on the driver’s part. The judge’s finding of negligence by the driver establishes that negligence was the primary cause of Isaac’s being struck on January 13, 1978, notwithstanding Isaac’s belief that he could have avoided the car had he not been suffering from the effects of the September 27,1977, injury. A driver of a motor vehicle has no defense because the pedestrian is on crutches, must be assisted by a cane, or is old and feeble; Isaac’s position was no different than that of any other pedestrian on crutches. The asserted negligence of the driver of the automobile was an independent, intervening cause. We reject the respondent’s argument that a negligently driven automobile striking him more than three months after work-related compensable injuries to heel and back is the direct and natural result of the compensable primary injuries.

This decision is not intended to establish a broad rule regarding subsequent injuries having some causal connection with an earlier compensable injury. Each case must necessarily be judged on its own facts, and the difference between compensability and lack thereof is often a question of degree and not substance. Our holding today should not control future cases in which the results of the original injury play a larger role, and intervening acts play a lesser role, in determining the legal cause of a subsequent injury. We also distinguish those cases involving injuries suffered as a result of negligent medical treatment, or transportation to such treatment, despondency, or other mishaps more directly related to the compensable injury. Cf. City of Lakeland v. Burton, 147 Fla. 412, 2 So.2d 731 (1941) (taking prescribed narcotic held not independent intervening cause).

For the reasons expressed, we find the injuries suffered as a result of this auto-pedestrian accident are not a direct and natural result of the work-related compensable injury, and the claimant must seek his damages from the negligent driver of the automobile. The petition for certiorari is granted, and the opinion of the Industrial Relations Commission is quashed. We remand this cause to the deputy commissioner for further proceedings in accordance with our holding.

Respondent’s motion for attorney’s fees is denied.

It is so ordered.

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

ADKINS and BOYD, JJ., dissent.

      . 1 Larson, The Law of Workmen’s Compensation § 13.11 at 3-361 (1978).


text:
    William Patrick RECKNER, Petitioner, v. FOREMOST INSURANCE COMPANY, City of Boynton Beach, Appalachian Insurance Company, Stanley Cale, George Meyers, James Rhoden, and Gene Eight, Respondents.
    No. 58334.
    Supreme Court of Florida.
    Dec. 4, 1980.
    Rehearing Denied March 2, 1981.
    Law Offices of Tomberg & Tomberg, Boynton Beach, Law Offices of Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, and Edna L. Caruso, West Palm Beach, for petitioner.
    Marjorie D. Gadarian of Jones & Foster, West Palm Beach, and Stuart A. Young and J. Burke Culler, Jr. of Adams, Coogler, Watson & Smith, West Palm Beach, for respondents.
   OVERTON, Justice.

This is a petition for certiorari to review a decision of the Fourth District Court of Appeal, reported at 376 So.2d 426 (Fla. 4th DCA 1979). We find conflict with our recent decision in District School Board v. Talmadge, 381 So.2d 698 (Fla.1980). We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution (1972), and quash.

We remand to the district court for reconsideration in view of our recent decision in Talmadge and the application of chapter 80-271, Laws of Florida, which amended section 768.28(9).

It is so ordered.

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

      . Section 1 of chapter 80-271, Laws of Florida, amended section 768.28(9), Florida Statutes, to provide in part:
      The exclusive remedy for injury or damages suffered as a result of any act, event or omission of any officer, employee, or agent of the state, or its subdivisions or constitutional officers, shall be by action against the governmental entity, or the head of such entity in his official capacity, or constitutional officer of which the officer, employee or agent is an employee, unless such act or omission was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. The state or its subdivisions shall not be liable in tort for the acts or omissions of an officer, employee, or agent committed while acting outside the course and scope of his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Section 4 of the act provides:
      This act shall apply to all actions pending in the trial or appellate courts on the date this act shall take effect and to all actions thereafter initiated.


author:
PER CURIAM. ENGLAND, Justice,
      SUNDBERG, Chief Justice, McDONALD, Justice,

text:
    Marvin Edwin JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 56167, 56703.
    Supreme Court of Florida.
    Dec. 11, 1980.
    Rehearing Denied March 6, 1981.

      Louis G. Carres, Asst. Public Defender, Tallahassee, Fla., for appellant.
    Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   PER CURIAM.

Marvin Edwin Johnson appeals his convictions for murder in the first degree and armed robbery and his sentence of death. Finding no reversible error in either the convictions or the sentence, we affirm. Johnson does not challenge the life sentence that he received for the armed robbery.

Gary Summitt, an employee of Warring-ton Pharmacy and an eyewitness to the robbery and the murder, testified that while working at the pharmacy on the evening of June 7,1978, he went to the back of the store to ask the pharmacist, Woodrow Moulton, a question. There he saw the defendant Johnson holding a gun on Moul-ton who was at the pharmacy safe putting articles in a bag, and he heard Johnson order Moulton to put certain drugs and money from the safe into the bag. After obtaining the drugs and money, Johnson started towards the front of the store. Moulton then grabbed a gun from behind the prescription counter. There was an exchange of gunfire, and Moulton continued to fire at Johnson until his gun was emptied. No longer able to defend himself, Moulton stood up with his hands in the air. Johnson then walked up to within a foot and a half of the defenseless pharmacist, said “You think you’re a smart son-of-a-bitch, don’t you?,” and shot him in the chest.

Johnson was indicted for and convicted of first-degree murder and robbery. Although the jury recommended a life sentence, the trial court found no mitigating factors and five aggravating factors and imposed the death penalty.

Johnson challenges his convictions on several grounds. He first contends that he was deprived of a fair trial because certain questions asked of him on cross-examination were not relevant, attacked his character, contained false innuendo, and were premised on facts which the State was not prepared to prove. Some of the questions were improper, but no reversible error resulted because, with one exception, the trial court either sustained defense counsel’s objections before Johnson answered the objectionable questions or gave an adequate curative instruction. After examining the entire record, we conclude that the one improper question allowed by the trial court relating to defendant’s possession of a gun, other than the murder weapon, almost two months after the crime and for which there was no curative instruction, was harmless error. Section 924.33, Florida Statutes (1977); Section 59.041, Florida Statutes (1977).

Johnson also contends that the trial court deprived him of his rights to due process of law and to compulsory attendance of witnesses by granting the State’s motion in limine to prevent the testimony of an expert witness who would have testified about the fallibility of eyewitness perception and identification. The State asserts that the facts affecting the reliability of an eyewitness identification are within the ordinary experience of jurors, that the conclusions to be drawn from the facts affecting the reliability of an eyewitness should be left to the jury, and that expert opinion should be excluded where the facts testified to are of a nature as not to require any special knowledge or experience to form a conclusion.

The trial court has broad discretion in determining the range of subjects on which an expert witness may be allowed to testify, and, unless there is a clear showing of error, its decision will not be disturbed on appeal. Fortianos v. State, 329 So.2d 397 (Fla. 1st DCA 1976). We reiterated this proposition most recently in Buchman v. Seaboard Coast Line Railroad Co., 381 So.2d 229 (Fla.1980). In Buchman, we affirmed the trial court’s admission of expert testimony in a railroad crossing accident case because there was no clear showing that the court abused its discretion in admitting the expert testimony. See also Welfare v. Seaboard Coast Line Railroad Co., 373 So.2d 886 (Fla.1979); Public Health Foundation for Cancer and Blood Pressure Research, Inc. v. Cole, 352 So.2d 877 (Fla. 4th DCA 1975), cert. denied, 361 So.2d 834 (Fla.1978). This discretion, however, is not boundless and expert testimony should be excluded where the facts testified to are of such a nature as not to require any special knowledge or experience in order for the jury to form conclusions from the facts. Nelson v. State, 362 So.2d 1017 (Fla. 3d DCA 1978); Johnson v. State, 314 So.2d 248 (Fla. 1st DCA 1975). The common thread running through all the decisions dealing with the admissibility of expert testimony is the premise that if the disputed issue is beyond the ordinary understanding of the jury, such testimony is admissible. Public Health Foundation for Cancer and Blood Pressure Research, Inc. v. Cole; Seaboard Coast Line Railroad Co. v. Kubalski, 323 So.2d 32 (Fla. 4th DCA 1975); Seaboard Coast Line Railroad v. Hill, 250 So.2d 311 (Fla. 4th DCA 1971), writ discharged, 270 So.2d 359 (Fla. 1972).

In Nelson v. State, the appellate court affirmed the trial court’s exclusion of expert testimony of a psychologist on matters of eyewitness identification from a criminal trial and correctly stated:

When facts are within the ordinary experience of jurors, conclusions to be drawn therefrom are left to the jury. McGough v. State, 302 So.2d 751 (Fla.1974); Tongay v. State, 79 So.2d 673 (Fla.1955); Thomas v. State, 317 So.2d 450 (Fla. 3d DCA 1975). We believe it is within the common knowledge of the jury that a person being attacked and beaten undergoes stress that might cloud a subsequent identification of the assailant by the victim. As such, the subject matter was not properly within the realm of expert testimony.

362 So.2d at 1021.

In the present case, the facts affecting the reliability of Gary Summitt’s testimony were within the ordinary experience of the jurors and did not require any expertise beyond the common knowledge of the jurors. The trial court did not abuse its discretion in granting the State’s motion to exclude the proffered expert testimony.

We also reject Johnson’s argument that the court reversibly erred in admitting into evidence photographs of the pharmacy after the officers had reconstructed the scene of the crime.

In addition to reviewing the record in light of the alleged errors set forth by Johnson, we have reviewed the evidence pursuant to Florida Rule of Appellate Procedure 9.140(f) to determine whether the interests of justice require a new trial, and we conclude that no new trial is required. Accordingly, we affirm the convictions.

Johnson also challenges his sentence of death on several grounds. After the jury recommended a life sentence, the trial court, finding no mitigating circumstances, imposed the death sentence. As aggravating circumstances, the court found:

FINDING: Marvin Edwin Johnson was under sentence of imprisonment in the State of Tennessee, but had escaped therefrom, when he committed the murder of which he has been convicted.
FINDING: Marvin Edwin Johnson had not previously been convicted of any capital felony, but had been convicted of a felony involving the use or threat of violence to the person, to-wit:
1. On October 14, 1964, the defendant pled guilty to the offense of robbery in Glynn County, Georgia, and sentenced to four years, wherein said robbery was committed by “grabbing and holding (the victim), throwing him down upon a bunk located in the Glynn County Jail, tying his hands and feet . .., placing a cloth gag in his mouth, and threatening and offering to strike and hit him with two pieces of metal, fastened together, making one piece ..., the same being then and there an offensive weapon, and a weapon likely to produce death if used in the way and manner as then and there threatened.... ” State Exhibit No. 1, Penalty Phase, December 9, 1978.
2. On November 16, 1976, the defendant was found guilty and sentenced to twenty years for the offense of armed robbery in Bradley County, Tennessee. State Exhibit No. 5, Penalty Phase, December 9, 1978.
3. The defendant testified at the trial that he had been convicted of a crime ten times. The only evidence of what those crimes were are the two convictions enumerated in 1 and 2 above. This Court has recently been furnished copies of several prior convictions of the defendant, but the Court has neither studied these documents nor knows the details of them. Copies have been sent to defense counsel. In view of the evidence of prior convictions, the Court makes no judicial determination of what type of convictions are on the defendant’s record except as enumerated above.
FINDING: Marvin Edwin Johnson did create a great risk to many persons. He did, in robbing Woodrow Moulton at gunpoint and in the ensuing gun battle within the confines of the Warrington Pharmacy, and in murdering the said Woodrow Moulton, create a great risk of death to the other three persons present in the drugstore at the time.
Finding: The murder was committed while Marvin Edwin Johnson was engaged in the commission of an armed robbery of the Warrington Pharmacy.
FINDING: The murder was committed during an armed robbery during which the defendant, Marvin Edwin Johnson, engaged in a pistol shoot-out with the victim. Upon discovering that the victim had exhausted his ammunition, and with the victim’s arms raised in a sign of surrender, the defendant coolly and with calculation approached the victim and pointing his .357 magnum revolver within a foot or two of the victim’s chest, remarked to his victim, “You think you’re a smart son-of-a-bitch, don’t you?”, and proceeded to shoot the victim dead with one shot through the victim’s heart.
While the method and manner of the murder was not especially heinous, except to the extent that any murder is heinous, the murder was atrocious and cruel and was committed to reek revenge upon Woodrow Moulton for having defended his life and property in a completely lawful manner.

The trial court made it perfectly clear at the sentencing hearing that it had not restricted itself solely to the statutorily enumerated mitigating circumstances.

The trial court erroneously found that Johnson created a great risk of death to many persons. The “many persons” referred to by the trial court were the other three persons present in the drugstore at the time of the shoot out. Three people are not “many persons” as we have interpreted that term in the context of section 921.-141(5)(c). Kampff v. State, 371 So.2d 1007 (Fla.1979). We therefore hold that this aggravating circumstance is not applicable. However, the trial court’s findings that there were four other aggravating circumstances and no statutory or other mitigating circumstances were proper. See State v. Dixon, 283 So.2d 1 (Fla.1973).

Johnson’s contention that the imposition of death after a jury recommendation of life violates his right against double jeopardy has already been rejected by this Court in Douglas v. State, 373 So.2d 895 (Fla.1979). In Douglas, we held that a jury’s recommendation of life is not tantamount to a judgment of acquittal of a crime for which a death sentence is appropriate since such recommendation is advisory only, and we explained that acceptance of defendant’s assertion would place our present death penalty statute in contravention of the United States Supreme Court’s directives in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), since to accept his argument would mean that a trial judge and this Court would be bound by the jury’s recommendation of life.

He further asserts that for the trial court to impose a death sentence after a jury recommendation of life impinges on his right to trial by jury. The function of the jury in the sentencing phase, however, is not the same as the function of the jury in the guilt phase. The United States Supreme Court, in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), approved the role of the jury under Florida’s death penalty statute as advisory only. See also Douglas v. State; Hoy v. State, 353 So.2d 826 (Fla.1977), cert. denied, 439 U.S. 920, 99 S.Ct. 293, 58 L.Ed.2d 265 (1978).

Johnson’s arguments that the court’s override of the jury recommendation amounts to cruel and unusual punishment and violates his right to due process of law are likewise without merit. These arguments are based on the same faulty premise as Johnson’s double jeopardy argument that the jury’s role is more than advisory-that it binds the trial court and this Court.

Johnson’s final argument is that the trial court’s overriding of the jury’s life recommendation is contrary to the dictates of Tedder v. State, 322 So.2d 908 (Fla.1975). In Tedder, we held that a jury’s recommendation of life should be given great weight and that in order to sustain a sentence of death, “the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.” Later in Hoy v. State, wherein we sustained the trial court’s override of a jury recommendation, we said that the jury recommendation is to be accorded great weight, but the ultimate decision as to whether the death penalty should be imposed rests with the trial judge. In the present case, we find from the totality of the circumstances that the facts suggesting the death sentence are so clear and convincing that virtually no reasonable person could differ. There are no mitigating circumstances, statutory or otherwise, and there are four valid aggravating circumstances. We conclude that death is the appropriate sentence to be imposed for this atrocious and cruel execution murder committed during the commission of an armed robbery by an escaped convict who previously had been convicted of felonies involving the use or threat of violence.

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

It is so ordered.

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

ENGLAND, J., concurs specially with an opinion.

SUNDBERG, C. J., concurs in part and dissents in part with an opinion, with which OVERTON and McDONALD, JJ., concur.

OVERTON, J., concurs as to the conviction, but dissents as to the sentence.

McDONALD, J., dissents with an opinion, with which OVERTON, J., concurs.

ENGLAND, Justice,

concurring specially.

While I concur in the Court’s affirmance of Johnson’s conviction and sentence, I cannot characterize this killing as either atrocious or cruel, as those terms are used in our death penalty statute. My disagreement on this point, however, is irrelevant to the outcome of the case.

SUNDBERG, Chief Justice,

concurring in part and dissenting in part.

I concur in so much of the majority opinion as affirms the convictions in this case, but I must respectfully dissent from that part which affirms the sentence of death.

Because the jury recommended the imposition of a life sentence, the standard to be applied in determining whether to sustain the trial judge’s death sentence is that “the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.” Tedder v. State, 322 So.2d 908, 910 (Fla.1975). After a complete review of the circumstances surrounding this criminal episode as cataloged in the majority opinion, I believe reasonable persons could clearly differ over whether this homicide is so set apart from the norm as to call for imposition of the death penalty. Conceding, as must any person, that all murders are unwarranted and anathema to any civilized society, nonetheless our capital punishment statute reserves the death penalty for those acts which are so flagrantly vile, cruel and outrageous as to set them apart from other capital felonies.

From the seminal ease upholding our capital punishment statute we are taught:

Death is a unique punishment in its finality and in its total rejection of the possibility of rehabilitation. It is proper, therefore, that the Legislature has chosen to reserve its application to only the most aggravated and unmitigated of most serious crimes.

State v. Dixon, 283 So.2d 1, 7 (Fla.1973) (emphasis added).

Thus, it [§ 921.141, Fla.Stat.] again presents evidence of legislative intent to extract the penalty of death for only the most aggravated, the most indefensible of crimes.

Id. at 8 (emphasis added).

What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies-the conscienceless or pitiless crime which is unnecessarily torturous to the victim.

Id. at 9 (emphasis added),

and finally:

It must be emphasized that the procedure to be followed by trial judges and juries is not a mere counting process of X number of aggravating circumstances and Y number of mitigating circumstances, but rather a reasoned judgment as to what factual situations require the imposition of death and which can be satisfied by life imprisonment in light of the totality of the circumstances present.

Id. at 10.

I submit that notwithstanding the existence of four aggravating circumstances and the absence of any statutory mitigating circumstances, in light of the totality of the circumstances here present the jury could and did quite reasonably conclude that life imprisonment is the appropriate sentence. See Neary v. State, 384 So.2d 881 (Fla.1980). There is nothing about the actual homicide itself to set it apart from the norm of murders-a single gunshot to the chest with death ensuing instantly. And the circumstances surrounding the criminal episode-the fusillade of pistol shots initiated by the victim and the apparent conscious act of the appellant to spare the two other occupants of the premises from kidnapping or murder-support a reasoned judgment by the jury in favor of a life sentence. Hence, I would affirm the convictions but vacate the death sentence with directions to impose a sentence of life imprisonment without eligibility for parole until the expiration of twenty-five years.

OVERTON and McDONALD, JJ., concur.

McDONALD, Justice,

dissenting.

I would affirm the conviction but dissent from the imposition of the death sentence.

I disagree with the statement that from the totality of the circumstances the facts suggesting the death sentence are so clear and convincing that virtually no reasonable person could differ. Prior to the shooting the defendant had completed his crime of robbery and was leaving. The victim initiated the shooting. I do not condone the acts of the defendant thereafter in the slightest, and there is ample evidence to support premeditated murder, but I feel that there may be factors which would justify the jury's recommendation of mercy. The testimony of the psychologist could lead one to believe that the defendant’s apparent malevolent act against the victim was in fact an unplanned reaction to being fired at. He directed no overt act of hostility or harm at the witness Summitt, whose subsequent testimony at trial was primarily responsible for Johnson’s conviction, nor did he attempt to harm any other occupant of the store. Since he apparently showed some mercy the jury could have felt it should also. The proper sentence in this case is life imprisonment.

OVERTON, J., concurs.


author: BOYD, Justice.

text:
    B. W. ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 58232.
    Supreme Court of Florida.
    Dec. 18, 1980.
    Rehearing Denied March 2, 1981.
    Bruce S. Rogow, Fort Lauderdale, and Joel Lumer, Miami, Fla., A. C. L. U. Foundation of Florida, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   BOYD, Justice.

This cause is before the Court on appeal from a judgment of the County Court, Es-cambia County, which passed upon the constitutionality of a state law. Appellant filed his notice of appeal on December 5, 1979. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. (1972).

Appellant was charged with violating section 876.13, Florida Statutes (1977). That section provides:

No person or persons shall in this state, while wearing any mask, hood, or device whereby any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer, enter upon, or be, or appear upon or within the public property of any municipality or county of the state.

Appellant challenged the constitutionality of the statute in a motion to dismiss. After the court denied the motion, the appellant entered a plea of nolo contendere, preserving his right to appeal the denial of the motion.

Appellant contends that the statute deprives him of due process of law, denies equal protection, and infringes the rights of freedom of expression, freedom of association, and privacy. We agree that the statute deprives him of due process because it is overbroad, and decline to comment on the other arguments.

Without speculating on whether the statute is intended to apply to any core activities which the legislature has an interest in preventing, we find that this law is susceptible of application to entirely innocent activities. It is susceptible of being applied so as to create prohibitions that completely lack any rational basis. The exceptions provided by section 876.16, Florida Statutes (1977), are not sufficient to cure this fatal overbreadth.

The state points out rational bases which the statute serves and asks that we provide a limiting construction, restricting the law’s application to conduct the state may prohibit. We find, however, that although the law is overbroad in its sweep and lacks a rational basis, its language is very specific. The statutory words are not susceptible of any limiting construction. See Brown v. State, 358 So.2d 16 (Fla.1978); State v. Egan, 287 So.2d 1 (Fla.1973); Fine v. Moran, 74 Fla. 417, 77 So. 533 (1917).

The judgment of conviction is reversed and the cause remanded to the County Court of Escambia County with directions that the information be dismissed.

It is so ordered.

SUNDBERG, C. J, and ADKINS, OVER-TON, ENGLAND and McDONALD, JJ., concur.

ALDERMAN, J., dissents.