author: FERGUSON, Judge. DANIEL S. PEARSON, JORGENSON,

text:
    Melvee TUCKER, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2075.
    District Court of Appeal of Florida, Third District.
    June 22, 1982.
    Rehearing Denied Aug. 25, 1982.

      Bennett H. Brummer, Public Defender, and Michael Zelman, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   FERGUSON, Judge.

On December 14, 1977, appellant Melvee Tucker was indicted by grand jury for the first-degree murder of a convenience store employee killed more than three years earlier on June 11, 1974 during a robbery attempt. After a jury trial, Tucker was adjudicated guilty of first-degree murder and sentenced to life imprisonment. He appeals, raising six points as error: (1) failure to dismiss the indictment because it contained no allegation of venue, (2) failure to dismiss the indictment because delay in prosecution violated appellant’s rights to due process, (3) failure to dismiss the indictment because of underrepresentation on the grand jury of Blacks, Latins, and females, (4) failure to suppress his confession as the product of an illegal arrest or as not voluntarily given, (5) failure to grant a mistrial for prejudicial presecutorial comment, and (6) refusal to instruct on a lesser-included offense to which the statute of limitations had run. We affirm.

I

As to the first point on appeal we hold that Tucker may not now challenge his conviction and sentence on the grounds that indictment fails to allege venue because he failed to raise the issue by pre-trial motion. See, e.g., Fuller v. State, 159 Fla. 200, 31 So.2d 259 (Fla.1947); Fla.R.Crim.P. 3.190(c). The defect of failure to allege venue is one of substance rendering the indictment fundamentally defective, State v. Black, 385 So.2d 1372 (Fla.1980), however, a substantive defect in an indictment or information may be waived unless challenged timely by motion to dismiss. Fla.R.Crim.P. 3.190(b) and (c). In State v. Black, supra, and Rimes v. State, 101 Fla. 1322, 133 So. 550 (1931), upon which Black relies, the defective indictment was attacked by pretrial motion. We interpret the statement of the supreme court that “Allegations as to the place of the alleged offense also fixes the jurisdiction of the grand jury and court,” State v. Black, supra, at 1375, as referring to “venue,” consistent with Rimes v. State, supra. See also Annot. 59 A.L.R.2d 906, § 4 (1956) cited by the court in State v. Black, supra, (requirement for statement of place where offense committed is to establish venue and avoid prejudice to defendant in preparation of case). Venue is not the same as jurisdiction though the terms are sometimes used interchangeably. Jurisdiction means the inherent power to decide a case. Venue designates the geographical subdivision in which a court of competent jurisdiction may determine the case. 15 Fla.Jur.2d, Criminal Law § 566. Venue, unlike subject matter jurisdiction, may be waived.

The court in State v. Black, supra, also stated, at p. 1375, “Venue is an essential element in any criminal charge,” citing Art. I, § 16, Fla.Const. Florida law is clear that in cases involving informations, failure to allege an essential element of an offense does not alone render the charge void as wholly failing to state a crime, the exception under Florida Rules of Criminal Procedure 3.190(c)(4) does not apply, and failure to timely object to this defect, constitutes waiver, Tracey v. State, 130 So.2d 605 (Fla.1961); Sinclair v. State, 46 So.2d 453 (Fla.1950); Kane v. State, 392 So.2d 1012, (Fla. 5th DCA 1981); Selley v. State, 403 So.2d 427 (Fla. 5th DCA 1980); Hasel-den v. State, 386 So.2d 624 (Fla. 4th DCA 1980). See also Ray v. State, 403 So.2d 956, 961, n.8 (Fla.1981). On the question of waiver of defect in the charging document we see no rational basis for distinguishing between an information and an indictment. But see Murphy v. State, 407 So.2d 296 (Fla. 1st DCA 1981). The indictment otherwise states a crime against Tucker, evidence of venue was produced at trial, and Tucker was not prejudiced in preparation or presentation of his defense, therefore he waived any objection to defect in the indictment by failing to file a pre-trial motion to dismiss.

We briefly dispose of the next four points on appeal, finding them to be without merit. Tucker has also failed to demonstrate that delay in indictment either prejudiced his defense or that the state delayed for the purpose of prejudicing or harassing the defendant. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). We find no error on due process or equal protection grounds in denying Tucker’s motion to dismiss the indictment because of underrepresentation of Blacks, Latins, and women on the grand jury or among presiding forepersons of grand juries. Bryant v. State, 386 So.2d 237 (Fla.1980). The issue of whether Tucker’s confessions should have been suppressed as fruit of an illegal arrest involves a fundamental right under the Fourth Amendment to the United States Constitution, see Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), which may be raised for the first time on appeal. Here, the issue was also raised and considered in the pre-trial motion to suppress. We find no error in denying the motion to suppress the confession either on the grounds that the arrest warrant was valid and the confession was not the fruit of an illegal arrest or on the grounds that the confession was given knowingly and voluntarily. See, e.g., Ponder v. State, 323 So.2d 296 (Fla. 3d DCA 1975). We have reviewed the entire record and find the evidence against Tucker overwhelming. It is impossible to differ with the trial court’s implicit determination that either Tucker was not prejudiced by the prosecutor’s argument appealing to sympathy for the victim, see, e.g., Menendez v. State, 368 So.2d 1278 (Fla.1979), or that the argument was a permissible response to arguments of defense counsel, Francis v. State, 343 So.2d 932, 933 (Fla. 3d DCA 1977).

II

As to Tucker’s remaining point on appeal that the trial court erred in refusing his request for a jury instruction on the lesser-included offenses of first-degree murder because the statute of limitations had run as to those lesser-included offenses, we find no reversible error. In Holloway v. State, 362 So.2d 333 (Fla. 3d DCA 1978), cert. denied, 379 So.2d 953 (Fla.1980), cert. denied, 449 U.S. 905, 101 S.Ct. 281, 66 L.Ed.2d 137 (1980), this court held that it was not error to refuse to charge lesser degrees of homicide when such offenses were barred by the statute of limitations. Tucker acknowledges this holding, but suggests the following three reasons why Holloway, supra, should not be determinative of this case: (a) subsequent authority of the Supreme Court of the United States in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) makes it appropriate to reexamine the rule in Holloway, supra, on due process considerations, (b) the equal protection clause requires instructions on lesser degrees be given to all defendants charged with first-degree murder, and (c) the court in Holloway, supra, did not resolve the question of whether an accused can waive the benefit of the statute of limitations.

In Beck v. Alabama, supra, the United States Supreme Court held that the death penalty may not be imposed if the jury is not permitted to consider a verdict of guilt of a lesser-included non-capital offense when the evidence would have supported such a verdict. The Court’s rationale is based on the belief that due process requires an opportunity for a jury pardon in death cases. Nothing in this due-process jury-pardon rationale commands a reexamination of our holding in Holloway v. State, supra. The Court’s holding in Beck v. Alabama is specifically limited to death cases. The Court reasoned that because there is a significant constitutional difference between the death penalty and lesser punishments, the constitutional guarantee of due process requires special safeguards in capital cases. The court expressly declined to decide whether the due process clause would require the giving of such an instruction in a non-capital case. Id 447 U.S. 638, n. 14, 100 S.Ct. 2390, n. 14, 65 L.Ed.2d 403, n. 14. Not only did the United States Supreme Court limit its holding to death cases in Beck v. Alabama, supra, it was not concerned with and did not address the separate issue of whether the instruction on a lesser-included offense is still required when the statute of limitations has run as to the lesser-included offense.

Florida courts have addressed both issues. Florida law requires that an instruction be given on the lesser-included offense in a murder case even in non-capital cases. Brown v. State, 206 So.2d 377 (Fla.1968); Fla.R.Crim.P. 3.510. This instruction is not required, however, when the statute of limitations has run on the lesser-included offense. Keenan v. State, 379 So.2d 147 (Fla. 4th DCA 1980); Holloway v. State, supra. By dismissing the petition for conflict certiorari, Holloway v. State, 379 So.2d 953 (Fla.1980), the Florida Supreme Court implicitly rejected the argument that the Brown requirement for an instruction on lesser-included offenses in murder cases should apply where the statute of limitations has run on the lesser-included offenses. The dismissal of the petition for conflict certiorari was also clearly a rejection of the equal protection argument. See id., Justice Boyd, dissenting.

While we have never held that a defendant is entitled to a lesser included offense instruction as a matter of due process, the nearly universal acceptance of the rule in state and federal courts establishes the value to the defendant of this procedural safeguard.

Tucker makes a good argument that a defendant should be permitted to waive the statute of limitations for purposes of an instruction on a lesser-included offense. We agree that this issue was not fully resolved by the court in Holloway v. State, supra, which merely considered the question of whether the trial court is required to instruct the jury on a lesser-included offense for which the statute of limitations has run. The court did not consider whether by requesting an instruction on the lesser-included offenses, a defendant could waive the statute of limitations thereby causing the lesser-included offense to become a viable charge permitting conviction and sentencing and entitling the defendant to an instruction in that offense. See, e.g., Holloway v. Florida, 449 U.S. 905, 101 S.Ct. 281, 66 L.Ed.2d 137 (1980), Justice Black-mun dissenting to denial of petition for writ of certiorari.

Though the issue of whether a defendant may waive the statute of limitations for purposes of conviction appears never to have been directly addressed in Florida, we find compelling the logic of those jurisdictions which have permitted such waiver. In People v. Lohnes, 76 Misc.2d 507, 351 N.Y. S.2d 279 (S.Ct.1973), the court noting that the right of a defendant to waive his statute of limitations defense to a charge of a lesser-included offense was established in 1902 in New York in People v. Austin, 63 App.Div. 382, 71 N.Y.S. 601, affirmed, 170 N.Y. 585, 63 N.E. 1120 (N.Y.1902), reasoned:

Criminal defendants in general .. . would suffer marked injustice from being denied this option. It would have the practical effect, in case after case, of forcing convictions in a higher degree where guilt is plain, but where, if given the choice ... a jury might convict for the lesser-included degree of a given crime. The right and option must be preserved to all defendants to waive the statute of limitations so as to avail themselves of the protection of this statute.

In United States v. Wild, 551 F.2d 418, 424 (D.C.Cir.1977), cert. denied, 431 U.S. 916, 97 S.Ct. 2178, 53 L.Ed.2d 226 (1977), the court determined that the statute of limitations did not constitute a jurisdictional bar to waiver and reasoned that “if a defendant may waive certain constitutional rights, he should certainly be capable ... of waiving a statutory right such as the statute of limitations.” Accord United States v. Doyle, 348 F.2d 715, 719, n.3 (2d Cir. 1965), cert. denied 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965) (waiver of guilty plea); United States v. Parrino, 212 F.2d 919 (2d Cir. 1954), cert. denied, 348 U.S. 840, 75 S.Ct. 46, 99 L.Ed. 663 (1954); People v. Williams, 79 Ill.App.3d 806, 35 Ill.Dec. 63, 398 N.E.2d 1013 (Ill.App.1979) (waiver by failure to raise defense prior to trial); Padie v. State, 594 P.2d 50 (Alaska 1979) (waiver for plea of nolo contendere).

Generally courts which have found the statute a “jurisdictional” bar to waiver have done so in terms of waiver by the state, not the defendant, and have done so only in the sense that a criminal statute of limitations goes not to the remedy of an action but creates a substantive right which prevents prosecution and conviction of an individual after the statute has run. In this sense “jurisdictional” refers to the legality of the actions of the state in prosecuting an individual for an offense determined legislatively to be stale. A court may not convict a defendant of a crime for which the state has no statutory right to prosecute. Because a prosecutor may not avoid the statute of limitations by charging a higher offense in the expectation of conviction on a lesser-included offense and thereby deprive a defendant of a substantive right, the courts have permitted a defendant who has failed to raise the defense of the statute of limitations by pre-trial motion to raise it at trial, by post-trial motion, or for the first time on appeal. See Lane v. State, 337 So.2d 976 (Fla.1976) (statute of limitations substantive right); State ex rel. Manucy v. Wadsworth, 293 So.2d 345 (Fla.1974) (protection from prosecution under statute of limitations is a substantive right); State v. King, 282 So.2d 162 (Fla.1973) (time within which offense is committed is jurisdictional fact controlling ability of state to prosecute particular defendant); Mead v. State, 101 So.2d 373 (Fla.1958) (appellant not required to raise question of statute of limitations which must be construed liberally in favor of defendants; burden on the state to prove appellant perpetrated crime within two years of filing of information); Mitchell v. State, 157 Fla. 121, 25 So.2d 73 (1946) (time within which offense was committed is jurisdictional fact which must be proved by state; state may not deprive defendant of benefit of statute of limitations); Nelson v. State, 17 Fla. 195 (1879) (conviction for murder in third degree cannot stand when not prosecuted within period fixed by statute). For cases in other jurisdictions see Chaifetz v. United States, 109 U.S.App.D.C. 349, 288 F.2d 133 (1960), cert. denied, 366 U.S. 209, 81 S.Ct. 1051, 6 L.Ed.2d 233 (1961) (rule adopted as response to efforts of zealous prosecutors to avoid statute of limitations against lesser offenses); State v. Fogel, 16 Ariz.App. 246, 492 P.2d 742 (Ariz.App.1972) (statute of limitations limits state’s power to act against accused); People v. Zamora, 18 Cal.3d 538, 134 Cal.Rptr. 784, 557 P.2d 75 (1976) (substantive right not waived by failure to assert at pleading stage; government cannot overcome bar of statute of limitations by demonstrating lack of prejudice to defendant); Duncan v. State, 282 Md. 385, 384 A.2d 456 (App.1978) (statute forbids commencement of prosecution for crime not within statutory period); State v. Civella, 364 S.W.2d 624 (Mo.App. 1963) (statute of limitations may be raised for first time on appeal because goes to legality of prosecution); State v. Stillwell, 175 N.J.Super. 244, 418 A.2d 267 (N.J.App. 1980) (statute of limitations absolute bar; creates substantive right not waived by failure to raise at pleadings); City of Cleveland v. Hirsch, 26 Ohio.App.2d 6, 268 N.E.2d 600 (Ohio.App.1971) (same); Washington v. Glover, 25 Wash.App. 58, 604 P.2d 1015 (Ct.App.1979) (indictment based on offense barred by statute of limitations must be dismissed); John v. State, 89 Wis.2d 214, 278 N.W.2d 235 (Wis.App.1979) (Wisconsin courts lack personal jurisdiction to try defendant subsequent to running of statute of limitation).

Whether a defendant may waive the statute of limitations for purposes of jury instruction and possible conviction of a lesser-included offense is an issue separate from that of the legality of prosecution of an offense barred by the statute. See, e.g., Holloway v. Florida, 449 U.S. 905, 101 S.Ct. 281, 66 L.Ed.2d 137, supra. A defendant who believes that a criminal statute of limitations no longer works to his advantage, should be permitted to waive that statute either before trial or before the jury retires. See, e.g., Fla.R.Crim.P. 3.190(b) and (c).

The right not to be eonvicted of an offense for which prosecution is barred by limiting statute is substantive and fundamental. Waiver of that right must meet the same strict standards which courts have applied in determining whether there has been an effective waiver as to other fundamental rights. Waiver of any fundamental right must be express and certain, not implied or equivocal. With respect to waiver of the statute of limitations there should be a waiver in writing made part of the record or at least an express oral waiver of the statute preventing prosecution and conviction made in open court on the record by the defendant personally or by his counsel in his presence. See, e.g., United States v. Wild, supra, (written waiver after full consultation with attorney effective); United States v. Sindona, 473 F.Supp. 764 (S.D.N. Y.1979) (same).

We believe that a mere request for an instruction on the lesser-included offense is not an express waiver of the right not to be prosecuted and convicted for an offense for which the statute of limitations has run. Absent an effective waiver, this case comes on for review in the same posture as the case of Holloway, supra, and we are bound by its rule. We find no error in refusing to instruct on the lesser-included offenses of first-degree murder.

Affirmed.

We certify to the Supreme Court of Florida as of great public interest the question set out in footnote 16 to Judge Jorgenson’s dissenting opinion.

DANIEL S. PEARSON,

Judge, specially concurring.

I concur in the affirmance of Tucker’s conviction.

First, I agree that Tucker did nothing below to preserve for our review any error in the failure of the indictment to specify the place where the crime allegedly occurred. Since Tucker was not hindered in the preparation or presentation of his defense by this omission in the charging document, and at trial the crime was proved to have taken place in Dade County, Florida, there was no denial of due process, and, therefore, the error cannot be said to be fundamental so as to be cognizable on appeal, even though not properly presented below. See Ray v. State, 403 So.2d 956 (Fla.1981). Second, while I wholeheartedly share Judge Ferguson’s view that the bar of the statute of limitations can be waived, I agree, albeit reservedly, that Tucker’s mere request to have the jury instructed on the limitations-barred lesser offenses was not a sufficient waiver under binding Florida caselaw so as to entitle him to have the instructions given.

My reservation is this. Were I free to do so, I would cast my lot with the authorities which hold that the statute of limitations is waived by the simple failure of a defendant to claim its benefits. See, e.g., United States v. Doyle, 348 F.2d 715 (2d Cir.) (waiver by plea of guilty), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965); United States v. Parrino, 212 F.2d 919 (2d Cir. 1953) (waiver by plea of guilty), cert. denied, 348 U.S. 840, 75 S.Ct. 46, 99 L.Ed. 663 (1954); People v. Williams, 79 Ill.App.3d 806, 35 Ill.Dec. 63, 398 N.E.2d 1013 (App.Ct. 1979) (waiver by failure to raise in trial court); People v. Lohnes, 76 Misc.2d 507, 351 N.Y.S.2d 279 (Sup.Ct.1973) (waiver by failure to object to instruction on limitations-barred offense). See also 1 C. Wright, Federal Practice and Procedure: Criminal § 193, at 409-10 (2d ed. 1969) (the more sensible rule is that the statute of limitations is waived if not raised at or before trial); 8 J. Moore, Moore’s Federal Practice — Criminal Rules ¶ 12.03[1], at 12-17, -18 (2d ed. 1975) (same). Under these authorities Tucker’s request for instructions on limitations-barred offenses would, a for-tiori, waive the statute of limitations.

I am obliged, however, to follow the quite different views that the statute of limitations is not waived by the defendant’s non-assertion of it, State v. King, 282 So.2d 162 (Fla.1973); Mead v. State, 101 So.2d 373 (Fla.1958); Mitchell v. State, 157 Fla. 121, 25 So.2d 73 (1946); Horton v. Mayo, 153 Fla. 611, 15 So.2d 327 (1943); Nelson v. State, 17 Fla. 195 (1879), and that even the affirmative act of requesting jury instructions on limitations-barred offenses does not constitute a waiver of the statute. Perry v. State, 103 Fla. 580, 137 So. 798 (1931); Blackmon v. State, 88 Fla. 188, 101 So. 319 (1924); Keenan v. State, 379 So.2d 147 (Fla. 4th DC A 1980); Holloway v. State, 362 So.2d 333 (Fla. 3d DCA 1978), cert. denied, 379 So.2d 953 (Fla.), cert. denied, 449 U.S. 905, 101 S.Ct. 281, 66 L.Ed.2d 137 (1980). Thus, because Tucker merely requested instructions on the limitations-barred offenses, I must agree that the trial court did not err in failing to give the instructions, and we are foreclosed from affording Tucker relief.

However, this does not mean either that a defendant cannot appropriately waive the statute of limitations and thereby consent to a conviction of a limitations-barred offense, or that a court is powerless to convict a defendant of a limitations-barred offense. I think it can be clearly demonstrated that the statute of limitations is waivable and conviction thereafter of an otherwise limitations-barred offense is permissible.

I.

It is sometimes said that “the time within which an offense is committed is a jurisdie-tional fact,” see, e.g., State v. King, supra; Mitchell v. State, supra. The statement is benign enough as long as “jurisdictional fact” means that it is the State’s burden to prove that the crime was committed within the period of limitations and, concomitantly, that it is unnecessary for a defendant relying upon the statute of limitations to plead it in bar. These meanings are, of course, totally consistent with the essential purpose of a statute of limitations in criminal prosecutions, which is “to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time,” State v. King, supra at 166, or, otherwise stated, “to provide predictability by specifying a time limit beyond which there is an irrebuttable presumption that a defendant’s right to a fair trial would be prejudiced.” United States v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 469, 30 L.Ed.2d 468, 479-80 (1971). See Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970). But if “jurisdictional fact” is said to mean that a court is powerless to convict a defendant of a limitations-barred offense and the term is thus woodenly applied to preclude a limitations-barred conviction which the defendant is willing to accept, then the statute of limitations, designed to shield only the defendant, is turned on him as a sword. Therefore, even though a defendant’s failure to raise the statute of limitations does not deprive him of its benefits, see State v. King, supra; Mitchell v. State, supra; Horton v. Mayo, supra; Nelson v. State, supra, and his mere request for instructions on limitations-barred offenses is deemed an inadequate waiver of the statute of limitations, Perry v. State, supra; Blackmon v. State, supra; Keenan v. State, supra; Holloway v. State, supra, it does not logically follow that a defendant’s express and knowing waiver of the statute’s benefits is invalid.

The issue of waivability is simply not dependent on whether the statute of limitations is treated as jurisdictional for other purposes. As one court has stated:

“This mechanical extension of the jurisdictional approach to the waiver issue graphically illustrates its inflexibility in resolving statute of limitations problems. The defendant, in a criminal case, may have compelling reasons in his own best interest for deciding to waive the statute of limitations. In our view, employment of a jurisdictional approach deprives the trial court of essential discretionary authority to determine whether or not the defendant should be able to waive the statute of limitations in the unique circumstances of the particular case.
“In our view, the arbitrary jurisdictional-affirmative defense distinction should be abandoned in favor of a case-by-case analysis focusing on the language of the applicable statute of limitations and the public policies behind its enactment. One commentator has suggested a salutary alternative which we think warrants adoption. Under this mode of analysis a statute of limitations can be waived if the trial court determines that the following prerequisites have been met:
“(1) the waiver is knowing, intelligent, and voluntary; (2) it is made for the defendant’s benefit and after consultation with counsel; and (3) the defendant’s waiver does not handicap his defense or contravene any other public policy reasons motivating the enactment of the statutes.”
Padie v. State, 594 P.2d 50, 56-57 (Alaska 1979) (footnotes omitted).

Illustrative of the independence of the issue of waivability is United States v. Wild, 551 F.2d 418 (D.C.Cir.), cert. denied, 431 U.S. 916, 97 S.Ct. 2178, 53 L.Ed.2d 226 (1977). In Wild, the defendant was told by the Watergate Special Prosecution Force that he was a target of a grand jury investigation into illegal campaign contributions. The prosecutors later notified him that they would seek an indictment to be returned on the eve of the expiration of the statute of limitations. So advised, Wild’s attorney arranged to secure the services of an experienced criminal attorney. The newly-retained attorney requested that the prosecutors give him more time to prepare and explore a possible disposition other than indictment, and proposed that Wild waive the statute of limitations. The prosecutors agreed; Wild executed written waivers; and, after the statute of limitations ran, Wild was indicted. Claiming the benefits of the statute of limitations, Wild successfully moved to dismiss the indictment. The court of appeals reversed, holding that the defendant’s express written waiver of the statute of limitations with the advice of counsel was a valid basis for conviction:

“[I]f a defendant may waive certain constitutional rights, he certainly should be capable ... of waiving a statutory right such as the statute of limitations. Constitutional rights which the defendant may waive include, inter alia, the right to be represented by counsel, the right not to be twice put in jeopardy and the right to be tried in the district where the offense was committed. If the strong policies behind these rights are not violated by a rule permitting them to be waived by the defendant, we cannot find that the limitation statute’s policy is violated here where the defendant was fully cognizant of the consequences of such a waiver and decided to execute it on the advice of his attorney for his own benefit.” 551 F.2d at 424-25 (footnotes omitted).

The court in Wild arrived at this conclusion despite an earlier holding by the same court in Chaifetz v. United States, 288 F.2d 133 (D.C.Cir.1960), that it was not error to refuse a defendant’s request for instructions on limitations-barred lesser offenses. This holding in Chaifetz, even as the holdings in Perry, Blackmon, Keenan and Holloway, treats the statute of limitations as jurisdictional. Since in Wild the court approved the defendant’s express waiver of the statute of limitations without receding from or overruling Chaifetz, I think it inescapable that one meaning of Wild is that the issue of waivability is separate and distinct from the issue of whether the statute of limitations is said, as in Chaifetz, to be jurisdictional in a context other than waiver.

II.

Quite apart from the foregoing argument that the issue of waivability of the statute of limitations must analytically be separated from the “jurisdictional” label given the statute of limitations, is the more compelling argument that any conclusion that the statute of limitations is never waivable must ultimately, in given cases, deny a defendant’s right to due process of law. In my view, a constitutional right to waive the statute of limitations arises in at least three instances — where the defendant’s theory of defense is that he is guilty only of a limitations-barred lesser offense; where the defendant is charged with a capital crime; and where the lesser offenses have become limitations-barred through unjustified state action. If, in these instances, or any instance, the so-called jurisdictional bar gives way, and conviction is rendered on a limitations-barred offense, it must give way in all instances, for then it can no longer be said that subject matter jurisdiction is lacking.

A.

Theory of Defense

The law in Florida is:

“Where there is any evidence introduced at trial which supports the theory of the defense, a defendant is entitled to have the jury instructed on the law applicable to his theory of defense when he so requests.” Bryant v. State, 412 So.2d 347 (Fla.1982).

Motley v. State, 155 Fla. 545, 20 So.2d 798 (1945); Williams v. State, 356 So.2d 46 (Fla. 2d DCA 1978); Laythe v. State, 330 So.2d 113 (Fla. 3d DCA), cert. denied, 339 So.2d 1172 (Fla.1976). The federal rule is the same. See, e.g., United States v. Bennett, 665 F.2d 16 (2d Cir. 1981); United States v. Conroy, 589 F.2d 1258 (5th Cir. 1979); United States v. Wolfson, 573 F.2d 216 (5th Cir. 1978); United States v. Flom, 558 F.2d 1179 (5th Cir. 1977); United States v. Cullen, 454 F.2d 386 (7th Cir. 1971). The failure to instruct on the defendant’s theory of defense is tantamount to directing the jury to return a guilty verdict, United States v. Flom, supra, and effectively denies a defendant a “trial by the due course of law.” Motley v. State, supra. Such a failure can never be said to be harmless. Motley v. State, supra.

Where, then, the theory of the defense to a charge of first-degree murder is that the defendant, although responsible for the death, lacked the requisite premeditation and was guilty at most of second-degree murder or manslaughter, see State v. Davis, 411 So.2d 1354, 1355-56 n. 1 (Fla. 3d DCA 1982); Cooper v. State, 413 So.2d 1244 (Fla. 1st DCA 1982) (defense to attempted first-degree murder charges, no premeditation); Case Comment, Waiver of the Statute of Limitations in Criminal Prosecutions: United States v. Wild, 90 Harv.L.Rev. 1550,1555 n. 46 (1977), it would be a denial of due process to refuse to allow the defendant to waive the statute of limitations on those lesser offenses.

B.

The Capital Case

In Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), the United States Supreme Court held that the death penalty may not be imposed after a jury verdict of guilt of a capital offense when the jury was not permitted to consider a verdict of guilt of a lesser-included non-capital offense and the evidence would have supported such a verdict.

Beck was tried for the capital offense of “robbery or attempts thereof when the victim is intentionally killed by the defendant.” Felony murder is not a capital crime in Alabama, but is a lesser-included offense of Alabama’s “robbery-intentional killing” offense. But under Alabama’s capital offense statute, as interpreted by case law, the trial court was not permitted to give the jury the option of conviction of a lesser offense. In Alabama the jury was required to choose between conviction of a capital offense or acquittal.

At trial, Beck’s defense was that although he participated in the robbery with a co-defendant, Beck never intended the victim to be killed. The State conceded that the evidence supported Beck’s entitlement to the lesser offense felony murder instruction, but Alabama law prevented it from being given in a capital offense prosecution. Beck was convicted and sentenced to death.

In the United States Supreme Court, Beck argued that Alabama’s prohibition against giving lesser-included offense instructions in capital cases violated the Eighth Amendment and the due process clause of the Fourteenth Amendment by substantially increasing the risk of error in the fact-finding process. The United States Supreme Court agreed with both contentions. The Court stated:

“In the final analysis the difficulty with the Alabama statute is that it interjects irrelevant considerations into the fact-finding process, diverting the jury’s attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime. Thus, on the one hand, the unavailability of the third option of convicting on a lesser offense [for which there exists evidence] may encourage the jury to convict [the defendant of a crime the jury does not believe the defendant committed] for an impermissible reason — its belief that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death penalty may encourage it to acquit for an equally impermissible reason — that whatever his crime, the defendant does not deserve death.” 447 U.S. at 642, 100 S.Ct. at 2392, 65 L.Ed.2d at 406.

Finally, the Court said:

“In any particular case these two extraneous factors may favor the defendant or the prosecution or they may cancel each other out. But in every case they introduce a level of uncertainty and unreliability into the fact-finding process that cannot be tolerated in a capital case.” 447 U.S. at 643, 100 S.Ct. at 2392, 65 L.Ed.2d at 406 (emphasis supplied).

While the Supreme Court recognized that unreliability is introduced into every case where the jury’s decision must be all or nothing, the holding appears limited to capital cases. But a capital case, as explicated in Beck, is one in which the death penalty may, not necessarily does, ensue. In Beck, the Court said:

“While we have never held that a defendant is entitled to a lesser included offense instruction as a matter of due process, the nearly universal acceptance of the rule in both state and federal courts establishes the value to the defendant of this procedural safeguard. That safeguard would seem to be especially important in a case such as this. For when the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense — but leaves some doubt with respect to an element that would justify conviction of a capital offense — the failure to give the jury the ‘third option’ of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction.
“Such a risk cannot be tolerated in a case where the defendant’s life is at stake.” 447 U.S. at 637, 100 S.Ct. at 2389, 65 L.Ed.2d at 402-03.

Thus, the harm found in Beck is the harm of a distorted fact-finding process at a time when the defendant's life is at stake. Surely, had Tucker received the death penalty, Beck would require reversal on due process grounds. Yet the possibility of the death penalty was removed in the present case only after the jury had completed the fact-finding process. I suggest that had Tucker expressly waived the protection of the statute of limitations on the lesser offenses, the failure to instruct the jury thereon, even in the absence of the imposition of the death penalty, would be reversible error under Beck.

C.

Prosecutorial Delay

In Mitchell v. State, supra, the uneontro-verted evidence was that the killing took place more than two years before Mitchell was indicted for first-degree murder. Mitchell was convicted of second-degree murder. The statute of limitations for second-degree murder was two years with the proviso that:

“In the trial on an indictment charging a capital offense a verdict may be returned for any offense less than capital which may be included within such indictment, although the indictment may have been found more than two years after commission of the offense embraced in such verdict.” Id., 25 So.2d at 74.

Construing the statute liberally in favor of the defendant, the Supreme Court of Florida held that the two-year limitations period was not extended by the foregoing provision and Mitchell’s conviction was barred. It reasoned:

“It is within the power of the legislature to fix the time in which prosecution for any offense may be commenced. It is not competent, however, for the legislature to fix the time within which a prosecution may be commenced if the prosecution is commenced by indictment and a different time if the prosecution be commenced by information. To hold otherwise would be tantamount to allowing the prosecuting officer to determine whether or not the statute of limitations should or should not be applicable.
“A jury has said this man is not guilty of murder in the first degree and, therefore, he is entitled to every benefit to which any one else can be entitled who is also only guilty of murder in the second degree. This right of equal protection may not be taken away by the State choosing to proceed with the prosecution by some method which will deprive him of the benefit of the statute of limitations while others guilty of the like offense may have the benefit of the statute of limitations because the State has chosen to proceed with the prosecution by a different method.” Id. at 75 (emphasis supplied).

The principle of Mitchell that the State may not unilaterally deprive a defendant of the benefit of the statute of limitations by choosing one method of prosecution over another applies with equal force to a claim by a defendant that the State’s unjustified inaction and delay in instituting a prosecution has deprived him of instructions on lesser offenses. While it may be that a defendant who establishes unjustified pros-ecutorial delay would be entitled to lesser-offense instructions without the necessity of waiving the statute of limitations and that, as in Mitchell, conviction on a limitations-barred offense would be precluded, I have no difficulty concluding that such a defendant would at least be entitled to waive the impediment of the statute of limitations and have the jury instructed on the lesser offenses.

III.

I conclude, therefore, that a defendant who chooses to do so can waive the protection of the statute of limitations; that the waiver must be knowing, intelligent and voluntary; that when such a waiver is made, the defendant is entitled to have the jury instructed on the lesser offenses which without such waiver would be limitations-barred; and that, thereafter, in the event the defendant is found guilty of an offense as to which the statute of limitations has been waived, the court may enter a judgment of conviction thereon. Since, however, under the present state of the law in Florida, Tucker’s request for instructions on the limitations-barred offenses did not constitute a waiver of the statute of limitations, I must vote to affirm.

JORGENSON,

dissenting.

I see no difference between the indictment in this case and that which was before the Supreme Court in State v. Black, 385 So.2d 1372 (Fla.1980). An indictment which fails to allege venue is defective and void. Black; Fla.R.Crim.P. 3.140(d)(3). Our Supreme Court has held that “[pjroper jurisdictional allegations are as essential in an accusatory writ as are those relating to the material elements of the crime.” Black, supra, at 1375 (citing Connor v. State, 29 Fla. 455, 10 So. 891 (1892); Pope v. State, 268 So.2d 173 (Fla. 2d DCA 1972)).

Venue is an essential element in any criminal charge. Florida Constitution, art. I, § 16. A fair reading of Black compels the conclusion that the absence of a venue allegation in an indictment deprives a trial court of subject matter jurisdiction, notwithstanding the fact that venue was proved at trial. Black, supra.

Justice England, concurring specially in Black, makes a cogent argument for a more relaxed standard governing allegations of venue in an indictment. In so doing, he suggests alternative theories which would accomplish that result. Black, at 1375, 1376. Our Supreme Court has seen fit not to do so. Accordingly, I would reverse and remand for reindictment and retrial.

My dissent here should not be read as a rejection of the views expressed in the majority opinion on the issue of waiver of lesser included offenses or views expressed in my brother Pearson’s special concurrence since I, likewise, agree that a defendant who chooses to do so can waive protection of the statute of limitations. I dissent only because I feel that Black, supra, is controlling.

      . A “jury-pardon” permits a jury to convict a defendant of a lesser offense than the offense charged if there is sufficient evidence either as to the higher offense or the lesser offense. See Beck v. Alabama, supra, 447 U.S. 636 n. 12,100 S.Ct. 2388, n. 12, 65 L.Ed.2d 402, n. 12. In revising the Florida Standard Jury Instructions in Criminal Cases, October 1, 1981, the Florida Supreme Court has limited use of the “jury pardon” concept in Florida by requiring an instruction on a lesser-included offense only where the proof of the lesser-included offense inheres in the higher offense as is the case in a necessarily-included offense, or where the lesser offense is not necessarily-included in the greater but is covered by the charging document and proof. The Court has also removed second-degree murder as a necessarily-included offense of a first-degree felony-murder and third-degree felony-murder as a necessarily-included offense of first or second-degree murder.

      .See, e.g., United States v. Campbell, 652 F.2d 760 (8th Cir. 1981) (cites Beck v. Alabama for rule that “a lesser-included offense instruction is not required unless the evidence warrants it.”); United States ex rel. Brodie v. Hilton, 496 F.Supp. 619 (D.N.J.1980) (Beck v. Alabama turned on existence of evidence that could have supported a verdict of guilt or the lesser-included non-capital offense); State v. Vickers, 129 Ariz. 506, 633 P.2d 315 (1981) (Beck v. Alabama, supra, does not require instruction on lesser-included offenses in death cases when there is no evidence to support conviction). The Supreme Court stated in Beck v. Alabama, supra, at 447 U.S. 637, 100 S.Ct. 2389, 65 L.Ed.2d 402, that:

      . But see note 1, supra, for limitations after October 1, 1981.

      . See, e.g., Oliver v. State, 379 So.2d 143 (Fla. 3d DCA 1980) where a defendant charged with first-degree murder was convicted of second-degree murder based on a plea of nolo conten-dere even though the statute of limitations had run as to that offense. On appeal, this court applied theories of estoppel and initiated error in holding that Oliver could not, for the first time on appeal, raise the statute of limitations . as a bar to conviction. The issue of waiver was not addressed.

      . See, e.g., Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (waiver of fundamental right must be knowingly, intelligently, and voluntarily made); Groomes v. State, 401 So.2d 1139 (Fla. 3d DCA 1981) (stipulation in writing that state would not seek death penalty if defendant agreed to be tried by six jurors waiving right to trial by twelve jurors, effective where stipulation executed by defendant, his mother, defense counsel, state attorney and approved by the court); Sessums v. State, 404 So.2d 1074 (Fla. 3d DCA 1981) (waiver of jury trial effective where written waiver signed by defendant, and his counsel in open court in defendant’s presence again announces waiver).

      . Some other jurisdictions agree. See, e.g., Waters v. United States, 328 F.2d 739 (10th Cir. 1964) (statute of limitations can be raised for first time on appeal); Chaifetz v. United States, 288 F.2d 133 (D.C.Cir.1960) (court not required to instruct on limitations-barred lesser offenses); City of Cleveland v. Hirsch, 26 Ohio App.2d 6, 268 N.E.2d 600 (Ct.App.1971) (statute of limitations can be raised for first time on appeal); State v. Civella, 364 S.W.2d 624 (Mo. App.1963) (guilty plea does not waive statute of limitations claim); see also Askins v. United States, 251 F.2d 909 (D.C.Cir.1958) (no waiver where charged offense not barred by statute of limitations and opportunity to raise did not arise until defendant found guilty of limitations-barred lesser offense); see generally An-not., 47 A.L.R.2d 887 (1956).

      . The usual context in which the problem arises is in a prosecution for a capital or life felony which may be commenced at any time, whereas the lesser offenses must be commenced within four years. See § 775.15, Fla. Stat. (1977). The problem can, of course, arise in the context of any other situation where the statute of limitations for the offense charged is longer than the statute of limitations for lesser offenses.

      . I think the conclusions that a defendant on trial for first-degree murder is not entitled to have the jury instructed on lesser-included offenses which are barred by the applicable statute of limitations, Perry v. State, supra; Keenan v. State, supra; Holloway v. State, supra, and that it is not error to instruct a jury that the defendant may not be convicted of such lesser offenses, Blackmon v. State, supra, overlook that the singular and exclusive purpose of the statute of limitations is to protect the defendant.

      . Some courts faced with statutes of limitations providing that “no person shall be prosecuted, tried or punished unless the prosecution is commenced, etc.” have concluded that the language set forth a legislative policy that limitations are not waivable. See Note, The Statute of Limitations in a Criminal Case: Can It Be Waived?, 18 William and Mary L.Rev. 823 (1977). Certainly, no such legislative policy can be gleaned from the language of Section 775.15, Florida Statutes (1974) (“[a] prosecution for . .. must be commenced ... ”).

      . In Oliver v. State, 379 So.2d 143 (Fla. 3d DCA 1980), this court, with no mention of Perry, Blackmon or Holloway, affirmed a conviction on a limitations-barred offense holding — in my view correctly — that the defendant’s negotiated nolo plea to this offense es-topped him from raising the statute of limitations as a bar. Implicit in this holding is that the court has jurisdiction to enter a judgment of conviction on a limitations-barred offense.

      . The absurdity of this result from the State’s point of view is that where there is a failure of proof on premeditation, the jury, or even the court, may be required to set free a defendant who has virtually conceded his guilt of a lesser offense. There is little to be said for a rule that requires an all or nothing verdict. See Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980); Keenan v. State, supra; Hayes v. State, 368 So.2d 374 (Fla. 5th DCA 1979).

      . Whether due process requires giving lesser-offense instructions in every case is an issue that has not been decided. In Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973), the court held that the Major Crimes Act required the giving of a lesser-included offense instruction even though the Act did not confer federal jurisdiction over the defendant for the lesser crime. The Court said:
      “While we have never explicitly held that the Due Process Clause of the Fifth Amendment guarantees the right of a defendant to have the jury instructed on a lesser included offense, it is nevertheless clear that a construction of the Major Crimes Act to preclude such an instruction would raise difficult constitutional questions.” 412 U.S. at 213, 93 S.Ct. at 1998, 36 L.Ed.2d at 850.

        Keeble, while not binding on state courts, makes clear that even a lack of jurisdiction to enter a judgment of conviction on the lesser crime is not an impediment to allowing the jury to return a verdict thereon. See Holloway v. Florida, 449 U.S. 905, 101 S.Ct. 281, 66 L.Ed.2d 137 (1980) (Blackmun, J., dissenting from denial of certiorari).
      The conclusion in Keeble is a recognition of the separation between the function of the jury to decide what crime the defendant committed and the function of the court to later decide whether he then can be convicted of the crime found. See Holloway v. State, 379 So.2d 953 (Fla.1980) (Boyd, J., dissenting from denial of certiorari). It is clear that a court, although satisfied that the offense charged was proved by overwhelming evidence or that there is no evidence to support the lesser offenses, may not invade the province of the jury by refusing to instruct on the lesser offenses. Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980 (1896). No less of an invasion of the jury’s role occurs when the refusal is based on the court’s determination that conviction would be barred by the statute of limitations. While a forceful argument can be made that due process mandates the giving of lesser-offense instructions even without a waiver of the statute of limitations, I think there can be little doubt that the instructions are mandated when the statute of limitations is waived.

      . I pretermit further discussion of a defendant who claims a constitutional right to the lesser-offense instructions without a waiver or a constitutional impediment to conviction after waiver. See n. 10 and Part II.C., supra.

      . The Grand Jurors of the State of Florida, duly called, impaneled and sworn to inquire and true presentment make in and for the body of the County of Dade, upon their oaths, present that on the 11th day of June, 1974, MELVEE TUCKER did unlawfully and feloni-ously, from a premeditated design to effect the death of a human being, by shooting him with a firearm, in violation of Florida Statute 782.04, to the evil example of all others in like cases offending and against the peace and dignity of the State of Florida.

      . The Black indictment is found at 360 So.2d 142, 143 (Fla. 2d DCA 1978) and reads as follows:
      The Grand Jurors of the State of Florida, duly called impaneled and sworn to inquire and true presentment make in and for the body of the County of Hernando and inquiring into the facts and circumstances surrounding the death of CARRIE BELLE BLACK, on their oaths do present and charge that THERON BLACK, did, on the 9th day of May, 1976, in violation of Florida Statute 782.04, unlawfully and perpetrated from a premeditated design to effect the death of the person killed, or any human being, did kill and murder CARRIE BELLE BLACK, a human being, by shooting her with a firearm, a more particular description being to this Body unknown.

      .I would, however, certify the following question:
      Is the error in the failure of an indictment to specify the place where the crime allegedly occurred so fundamental that it may be urged on appeal, though not properly presented at the trial court, where the defendant is not hindered in the preparation or presentation of his defense and the situs of the crime is proved at trial?


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The STATE of Florida, Appellant, v. Johnny McCREE, Appellee.
    No. 81-1936.
    District Court of Appeal of Florida, Third District.
    June 22, 1982.
    Rehearing Denied Aug. 25, 1982.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellant.
    Irv J. Lamel, Coral Gables, for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

We affirm the judgment of the trial court suppressing the confession of Johnny McCree, based on the trial court’s finding that the arrest was unlawful and without probable cause. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). No attenuation occurred according to this record between the time of the unlawful arrest and the confession. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Brown, supra, 422 U.S. at 602, 95 S.Ct. at 2261. See Bailey v. State, 319 So.2d 22 (Fla.1975); Taylor v. State, 355 So.2d 180 at 184 (Fla. 3d DCA 1978).


text:
    STATE of Florida, Appellant, v. Randy MANUCY, Appellee. STATE of Florida, Appellant, v. Jack Richard SIMMONS, Appellee.
    Nos. AF-342, AF-350.
    District Court of Appeal of Florida, First District.
    June 23, 1982.
    Rehearing Denied Aug. 31, 1982.
    Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., for appellant.
    Michael Allen, Public Defender, and Steven L. Bolotin, Asst. Public Defender, for appellees.
   PER CURIAM.

The State appeals orders of the trial court granting appellees’ pre-trial motions to dismiss count II of the information on the ground that there were no material disputed facts and the undisputed facts did not establish a prima facie case. Fla.R. Crim.P. 3.190(c)(4). We affirm.

Appellees were charged with grand theft in violation of Section 812.014, Florida Statutes (1979). The basis for the charge was a purchase by law enforcement officers of one pound of white powder from a co-defendant. The officers believed they were purchasing cocaine based on the price and their understanding of the co-defendant’s representations. The powder was later found to be 100% lidocaine, a substance not controlled under Chapter 893, Fla.Stat. (1979). The State’s theory of prosecution was that there was a grand theft committed on a consumer fraud theory because the officers were led to believe they were buying cocaine but were sold lidocaine. The trial court specifically ruled that this theory of prosecution was not a valid charge.

Our review and our affirmance are limited to the facts in the motions and orders in this particular case. -The State withdrew its traverse to the motions. Therefore all facts in the motions, since not specifically denied by the State, are deemed admitted. Fla.R.Crim.P. 3.190(d).

A review of the facts of each appellee’s motion leads to the conclusion that the facts do not state a prima facie case of consumer fraud under the grand theft statute.

The theft statute in this situation is meant to vindicate the reasonable expectations of the consumer. It is not reasonable to expect to receive contraband, even when that is what has been promised, and it is not reasonable to expect the criminal laws of the state to enforce quality control in illegal drug transactions. Where the buyer consents to part with his money on the assumption that he is to receive cocaine, the “contract” between buyer and seller is already voided by the illegal and unenforceable nature of the proposed transaction.

The buyer is clearly on notice that the person he is dealing with is necessarily a criminal if he delivers, a liar if he doesn’t, or both. “.. . [N]either law nor equity relieves against one’s own credulousness and inexcusable indifference to one’s own interest in a transaction where one has no legal right to rely upon the statements, representation and descriptions of another in the negotiation.” Smith v. Hollings-worth, 85 Fla. 431, 434, 96 So. 394, 395 (1923). See Ramel v. Chasebrook Construction Company, 135 So.2d 876 (Fla. 2nd DCA 1961), and Morton v. Young, 311 So.2d 755 (Fla. 3rd DCA 1975).

AFFIRMED.

ERVIN, SHIVERS and WENTWORTH, JJ., concur.


author: DANAHY, Judge.

text:
    GENERAL TELEPHONE COMPANY and American Motorists Insurance Company, Appellants, v. Van Earl WALLACE, III, Appellee.
    No. 81-1623.
    District Court of Appeal of Florida, Second District.
    July 2, 1982.
    Rehearing Denied Aug. 16, 1982.

      Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for appellants.
    Richard A. Bokor and David A. Maney of Gordon & Maney, Tampa, for appellee.
   DANAHY, Judge.

The defendants in this personal injury suit appeal an adverse final judgment entered on a jury verdict in favor of the plaintiff. We hold that the jury was improperly allowed to consider a doctor’s opinion as to the truth and veracity of the plaintiff, and reverse.

The plaintiff was injured when a General Telephone Company truck struck his motorcycle on North Dale Mabry Highway. The plaintiff testified that the accident occurred while he was on his way home from the Dale Mabry campus of Hillsborough Community College, a good distance south of the accident scene. The plaintiff further testified that his motorcycle was in the left-hand lane of north-bound traffic, though possibly it might have been on the center line, and that the General Telephone Company truck was in the right-hand lane. The plaintiff said that the truck came up from behind and bumped the plaintiff’s back tire while the plaintiff was in the right-hand portion of the left lane. The plaintiff’s testimony was the only evidence presented by the plaintiff on the issue of liability.

The defendants’ evidence pointed to an entirely different version of the circumstances surrounding the accident. The driver of the General Telephone Company truck, for example, testified that he saw the plaintiff’s motorcycle pull out of a side street just prior to the accident, cross the right lane of traffic and enter into the left lane. The driver’s testimony and other evidence would support the conclusion that the plaintiff’s motorcycle then turned from the left lane into the right lane, in front of the General Telephone Company truck, causing the truck to hit the plaintiff’s motorcycle.

During the plaintiff’s case in chief and prior to the plaintiff’s testimony, the plaintiff’s counsel called Dr. Michael Wasylik, the plaintiff’s treating physician. After asking Dr. Wasylik questions concerning the plaintiff’s manifestations of pain from his injuries, counsel asked the following question and received the following answer over the defendants’ vigorous objection:

Q And what is your opinion about this man’s truth and veracity as he has been your patient?
A I feel Van is an honest man.

During closing argument, the plaintiff’s counsel made the following argument to the jury, to which the defendants also objected:

And when I asked the doctor, Doctor, do you have an opinion if this man has been honest and candid with the medical history which was so important necessity with pain and advisability of operative procedure, he came back with a very honest and candid, wonderful response. He said, Mr. Bokor, Mr. Van Wallace, Van Wallace is an honest man. That’s what he said. So not to believe this young gentleman that he saw the truck come on the road is to call him a liar.

The opinion elicited from Dr. Wa-sylik concerning the plaintiffs truth and veracity, and the argument based on that opinion, violate two rules of law. The first rule is that evidence of good character or reputation is not relevant and is inadmissible in a civil action where the reputation of the party has not first been attacked by evidence of bad character. Pandula v. Fonseca, 145 Fla. 395, 199 So. 358 (1940). The second rule is that testimony with regard to reputation for truth and veracity must be bottomed upon the reputation in the person’s community of residence. Florida East Coast Ry. v. Hunt, 322 So.2d 68 (Fla. 3d DCA 1975). So called expert opinion as to the truthfulness of a witness is inadmissible. Lamazares v. Valdez, 353 So.2d 1257 (Fla. 3d DCA 1978). Almost a hundred years ago the Court of Civil Appeals of Texas was confronted with a situation similar to that presented to us in the instant case, and had this to say:

Dr. Field, who treated the plaintiff, testified that he complained of deep and severe pains in his back, loins and legs; and we think it was proper for him to give his opinion as an expert as to whether or not the plaintiff was injured, and the nature and extent of his injuries; and in so doing he could state whether or not, in his opinion, the complaints referred to were real or simulated. But it was not proper, after he had stated that he did not believe the plaintiff was simulating, to state, in the nature of a. reason for such belief, that he had known the plaintiff a long time. He could give any reason within the range of expert testimony for his opinion as to the reality of the plaintiff’s complaints; but he could not, as an expert, base his opinion on his confidence in the integrity of the man. Such evidence would not be expert testimony, because any other person, who had known the plaintiff the same length of time, would be as well qualified to speak concerning his honesty. Besides, this testimony tended to support the plaintiff’s character for honesty, which had not been attacked by appellant. It is true that on cross-examination Dr. Field had been asked if it was not possible for a person to simulate such complaints, and .deceive a physician, and he had stated that it was. Proof that it was possible for a person to have sworn falsely or acted dishonestly does not constitute an attack upon such person’s character; and, until his character is assailed, evidence is not admissible in support thereof, and then the evidence pro and con must refer to the person’s general reputation, and not be the individual opinion of the witness.

Austin & N. W. Ry. v. McElmurry, 33 S.W. 249, 250 (Tex.Civ.App.1895).

These rules are embodied in the Florida Evidence Code at section 90.609, Florida Statutes (1981). That section provides:

A party may attack or support the credibility of a witness, including an accused, by evidence in the form of reputation, except that;
(1) The evidence may refer only to character relating to truthfulness.
(2) Evidence of a truthful character is admissible only after the character of the witness for truthfulness has been attacked by reputation evidence.

For the foregoing reasons, we reverse and remand for a new trial.

REVERSED and REMANDED.

HOBSON, A. C. J., and GRIMES, J., concur.


author: BOARDMAN, Acting Chief Judge.

text:
    Robert John BRENNAN, Appellant, v. STATE of Florida, Appellee.
    No. 82-41.
    District Court of Appeal of Florida, Second District.
    July 2, 1982.
    Rehearing Denied Aug. 11, 1982.

      Jerry Hill, Public Defender, W. C. McLain and David A. Davis, Asst. Public Defenders, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Robert John Brennan appeals a judgment and sentence for possession of more than twenty grams of marijuana, contending that the trial court erred in denying his motion to suppress the evidence. We affirm.

Chief Collier County Deputy Sheriff Chuck Whidden, while flying in a helicopter at treetop level, observed marijuana growing in a heavily wooded area known as Butz Town. He was looking for marijuana because of an earlier tip. The property belonged to Dudley Butz, and appellant lived on and had exclusive use of the parcel of land where the marijuana was seen. The marijuana could not be seen from the roadway because of the surrounding thick woods and brush. On the following day, Thomas and Deputy Hunter walked onto the property without a search warrant, proceeded through the wooded area, and discovered cultivated plots of marijuana. Pathways connected the plots and a mobile home, which was approximately 150 yards away.

Hunter discovered appellant in the area of the cultivated marijuana, but not actually on the site where the plants were growing. The deputies asked appellant for identification, and he told them it was inside the mobile home. Appellant was arrested, and Thomas then accompanied him to his mobile home. While inside a partially screened and partially boarded up enclosure attached to the mobile home, Thomas saw small marijuana plants growing in paper and styro-foam cups.

The instant case is very similar to Murphy v. State, 413 So.2d 1268 (Fla. 1st DCA, 1982), which also involved the observation of fields of marijuana from a low-flying police helicopter. The first district held that although the premises were protected by a locked gate, the defendant did not have a reasonable expectation of privacy in his marijuana field, which was 300 to 450 feet away from the defendant’s home — approximately the same distance as that involved here. The first district concluded, relying on DeMontmorency v. State, 401 So.2d 858 (Fla. 1st DCA 1981) (marijuana outside the curtilage of the home), and distinguishing Kilpatrick v. State, 403 So.2d 1104 (Fla. 1st DCA 1981) (observation of marijuana made from within the curti-lage), that since the area in question was not constitutionally protected from governmental intrusion in the form of a helicopter observation, evidence obtained pursuant to the observation was admissible under the “open fields” doctrine, see Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924).

Another highly similar case is United States v. DeBacker, 493 F.Supp. 1078 (W.D. Mich.1980), in which the police, while investigating a tip, made an aerial pass at 200 feet and spotted marijuana. To confirm the sighting, they made a second pass at fifty feet. The same arguments made by appellant here were propounded in DeBacker. The court concluded that the defendant’s farm, located in the “boondocks,” according to one witness (as is the case here), was an open field and that isolated instances of aerial surveillance of it were constitutional. The court further reasoned:

Moreover, on balance, defendant’s relatively minor expectations of privacy do not outweigh the value of society in permitting such nonintrusive surveillance. The police were in a place they otherwise had a right to be, and defendant’s fields were plainly observable from the air. Merely because defendant neatly planted contraband in places not observable from the road doesn’t mean that all surveillance of the property thereafter is foreclosed. The Fourth Amendment prohibits unreasonable searches and seizures, not all searches and seizures.
Furthermore, all observation of defendant’s fields was isolated, though a previous observation had been made in the prior fall. The police here did not regularly view defendant’s property in the hopes of happening upon a crime. Instead, the police, acting upon an anonymous telephone tip, merely sought to verify it in as nonobtrusive a way as possible.

Id. at 1081. DeBacker was cited in State v. Layne, 623 S.W.2d 629 (Tenn.Cr.App.1981), where the police viewed marijuana from a helicopter at a height of 1800 feet. The court, after a review of many cases from other jurisdictions, held that the officers had (1) a legal right to be where they were (provided no federal or state flight regulations were violated) and (2) the authority to arrest those on the ground as a result of the “open view” doctrine.

Appellant makes much of the low altitude of the deputy’s flyover here. Yet both Dean v. Superior Court, 110 Cal.Rptr. 585, 35 Cal.App.3d 112 (3d DCA 1973), and State v. Stachler, 58 Haw. 412, 570 P.2d 1323 (1977), indicate that the observer’s altitude is a minor factor in considering the reasonableness of an expectation of privacy. Federal regulations, specifically 14 C.F.R. § 91.79(d), allow helicopters to fly at an altitude of less than 500 feet provided such operation is conducted without hazard to persons or property.

We conclude on the basis of the foregoing authorities that the deputies’ actions here were an appropriate application of the “open fields” doctrine.

Accordingly, appellant’s judgment and sentence is AFFIRMED.

GRIMES and CAMPBELL, JJ., concur.

      . Proceedings for review of DeMontmorency and Kilpatrick are currently pending before the florida Supreme Court.

      . State v. Rickard, No. 54,877 (Fla., Apr. 29, 1982), upon which appellant relies, similarity involves marijuana found within the curtilage.


text:
    BARTON INTERNATIONAL CONSULTANTS, INC., Appellant, v. Arturo SPRINGER, Appellee.
    No. 81-873.
    District Court of Appeal of Florida, Third District.
    July 6, 1982.
    Rehearing Denied Aug. 23, 1982.
    Mills & London and Jack E. London, Miami, for appellant.-
    Gaston R. Alvarez and Ruben L. deLeon, Miami, for appellee.

      Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

The trial court’s order denying defendant’s motion to dismiss for lack of jurisdiction is affirmed. Engineered Storage Systems, Inc. v. National Partitions & Interiors, 415 So.2d 114 (Fla. 3d DCA 1982); American Foam Industries, Inc. v. Mastercraft, 412 So.2d 392 (Fla. 3d DCA 1982).

Affirmed.


text:
    William R. MORGAN, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2601.
    District Court of Appeal of Florida, Third District.
    July 6, 1982.
    Rehearing Denied Aug. 23, 1982.
    Bennett H. Brummer, Public Defender and Lee Weissenborn, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

In Florida attempted second degree murder is recognized as a crime. Littles v. State, 384 So.2d 744 (Fla. 1st DCA 1980).

It is also a “necessarily included” lesser of the offense of attempted first degree murder, and therefore, the trial court was correct in giving such an instruction when the defendant was charged with attempted first degree murder. Brown v. State, 206 So.2d 377 (Fla.1968).

Therefore the conviction, adjudication and sentence are affirmed.

Affirmed.


text:
    ASSOCIATED TELEVISION & COMMUNICATIONS, INC., a Florida corporation, Appellant, v. Jeanne COWDEN, et al., Appellees.
    No. 81-359.
    District Court of Appeal of Florida, Fifth District.
    July 7, 1982.
    Rehearing Denied Aug. 16, 1982.

      William T. McCluan of Crofton, Holland, Starling, Harris & Severs, P. A., Melbourne, for appellant.
    Horton, Perse & Ginsberg and Nance, Miami, Cacciatore & Sisserson, Melbourne, for appellee Cowden.
    John G. Rooney of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Rockledge, for appellee Behanna.
   PER CURIAM.

The final judgment appealed from is affirmed. Appellant has not demonstrated an abuse of discretion by the trial court in refusing to allow the appellant, defendant below, to amend a pre-trial agreement one week before trial, under the circumstances of this case. The party moving to amend a pre-trial order has the burden of showing that such modification is proper. Alvarez v. Mauney, 175 So.2d 57 (Fla. 2d DCA 1965). That burden was not met here. Consequently, there is also no error demonstrated in the denial of appellant’s motion for continuance.

AFFIRMED.

ORFINGER, C. J., and DAUKSCH and SHARP, JJ., concur.


author: FERGUSON, Judge.

text:
    Robert Warren CHAPMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1351.
    District Court of Appeal of Florida, Third District.
    July 13, 1982.
    Rehearing Denied Aug. 25, 1982.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

Defendant appeals from a jury conviction for robbery and escape. He contends the trial court erred in denying his motion for mistrial based upon (1) repeated references by the prosecutor and state witnesses to offenses not charged in the information, (2) testimony elicited from a defense witness regarding the prior criminal record of the defendant, which improperly and prejudi-cially tended to show that defendant had bad character. We agree and reverse.

Miss Jaime Joyce, age 16, the alleged victim of a robbery, testified as follows: On the morning of July 11,1980 Jaime received a telephone call from an individual identified as Dennis who said he was on his way to her home. She had met Dennis at the beach one week earlier. Dennis arrived about 11:15 a. m. on a motorcycle accompanied by the defendant Chapman. Initially, Jaime stayed in her bedroom because . a neighbor had told her that Dennis was “bad news” but she subsequently allowed Dennis and Chapman to enter the house. The defendant offered her quaaludes and cocaine which she refused. However, later she joined them in a “couple of puffs of marijuana”. The three of them, defendant, Dennis and Jaime, talked for approximately thirty minutes. Defendant then produced a gun and told her to “get on the floor, this is a robbery”. Dennis was also instructed to lie on the floor. After complying, Jaime, covered with pillows and sheets, was unablé to observe subsequent events. She heard the defendant make a telephone call and later heard other persons inside the house and “drawers being pulled out and things being thrown around”. When she sensed that everyone had left, she went to the window and observed the defendant, wearing a denim jacket and blue jeans, riding away on the motorcycle. Jaime telephoned her mother who contacted the police. Jaime was present when the defendant was arrested later that day but she did not identify him to police officers because she was frightened.

The first of the errors complained of is based on references to a sexual battery of the victim which the state had decided not to prosecute for reasons not appearing in the record. It was conceded that if a sexual battery had occurred, the defendant was not the perpetrator. At the trial, all witnesses had been cautioned before taking the witness stand to avoid mentioning the alleged rape.

The uncharged offense was first referred to on cross-examination of Jaime about out-of-court statements she had given to a policeman which were inconsistent with her in-court testimony:

Q. And do you remember when he was discussing with you the man who left on the motorcycle?
A. Yes.
Q. And in response to the question you have the answer, this answer, [sic] “Was this the same description, the same clothes that you just described... ?” And, your answer, “Oh, I didn’t see the guy’s clothes when he left on the motorcycle. I didn’t pay attention really to that I don’t know if it was the same guy that left that I told you about earlier.... ”

After the victim admitted that the statement had been given by her to investigating officers the attempt to impeach continued:

Q. My question to you is this: Your answer is different today then it was then. Yes?
A. Uh-huh.
Q. It is not?
A. Well, I said something, but you said, you said, you told me I couldn’t say it.

At a side-bar conference, defense counsel requested the court to direct the witness to respond to the question with a yes or no answer. Defense counsel was cautioned to “be very careful” because the witness was allowed to explain inconsistent statements and in this case the rape would be a logical explanation. The proceedings continued in the presence of the jury:

THE COURT: Miss Joyce ... it is very important that you listen a lot more carefully to the questions than I think you have been...
Just listen to the question and answer as simply as possible, and if at all possible, and by a simple yes or no answer.
Now you are not restricted to that. It is not like you have to say something and then at that point you are stuck because it sounds terrible. If you want to explain your answerj just as soon as you answer, you can say, “I would like to explain that,” and then give the explanation that you care to, within the parameters that you have been talking about.

The next witness called by the state was Mrs. Glynda Joyce, mother of the victim. On direct examination she testified:

Q. MR. NORRIS [Prosecutor] Did you talk to Jaime, Ma’am?
A. On the telephone.
Q. What did she say?
MR. GAER: Judge, I must object to that.
THE COURT: Overruled.
Q. [By Prosecutor] What did she say, Ma’am?
A. She said, “We were robbed, somebody get me to a doctor and don’t call the police.”

The state’s next witness was Detective Slovonic. The following exchange took place on direct examination:

Q. [By Prosecutor] What information did you receive from the victim, Jaime Joyce?
A. When I interviewed Jaime Joyce, she told me that earlier in that day, approximately an hour and a half prior to my arrival on the scene, that two white males had forced their way into the house at gunpoint. After getting into the house they found her, covered her head with a sheet, laid her on the living room floor. Then as she was laying there, two or three other white males were let into the house.
Q. Excuse me, only refer to the robbery in this case when you are testifying. A. Correct.
Q. Go ahead.
MR. GAER: Judge, I must object and I must approach the bench again.

A fourth error allegedly occurred during cross-examination of Sandra Bobik, an employer and friend of the defendant who was called as a defense witness. Mrs. Bobik had testified that she first met the defendant in 1971 or 1972 and then met him again in 1980 while visiting relatives in Fort Myers, Florida. The cross-examination continued as to his whereabouts prior to 1980:

Q. [By Prosecutor] you know he had been out in Reno, [sic] Oklahoma, and Ashley, Oklahoma, did you know about his—
MR. GAER: I am going to object. THE COURT: Overruled.
Q. Do you know where he has been in the past, ma’am?
A. Roughly.
Q. Roughly?
A. Uh-huh.
Q. Do you know where he had come from just before Ft. Myers?
MR. GAER: I am going to object. I don’t see the relevance of this.
THE COURT: Overruled.
Q. [By Prosecutor] Where, ma’am? A. Where had he come from?
Q. Where, Ma’am?
A. He had just been released out of jail.
Q. That wasn’t what I asked. Was it Kentucky or—
MR. GAER: I must object. I must approach the bench for another motion. THE COURT: Motion is denied.

Regarding the allusions to a rape, the state contends that evidence of another crime was properly admitted, citing Williams v. State, 110 So.2d 654 (Fla.1959), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959) and Smith v. State, 365 So.2d 704 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979). Alternatively it is contended that any reference to the collateral crime took place outside the jury’s presence. We reject both arguments.

The holding of Williams is now codified in the Florida Evidence Code as Section 90.404(2), Florida Statutes (1979), and provides in subsection (a):

Similar fact evidence of other crimes, wrongs or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

In order to introduce evidence of another crime not only must the requirements of Section 90.404(2)(a) be satisfied, but the state must also prove by clear and convincing evidence the collateral crime and a connection between the defendant and that crime. State v. Norris, 168 So.2d 541 (Fla.1964). Citing to State v. Norris, the court in Dibble v. State, 347 So.2d 1096 (Fla. 2d DCA 1977) reversed a conviction where there was no proof that the similar crime was committed by the person on trial. Accord Franklin v. State, 229 So.2d 892 (Fla. 3d DCA 1970); Parnell v. State, 218 So.2d 535 (Fla. 3d DCA 1969). The record in this case is devoid of evidence pointing to appellant as the perpetrator of another crime.

The authorities relied upon by the state for the proposition that evidence of other crimes is relevant if it establishes the entire context out of which the criminal action arose can be distinguished. In Smith v. State, supra, and Nickels v. State, 90 Fla. 659, 106 So. 479 (1925) there was no question but that a second crime had been committed and that the defendant was a perpetrator. In Jacobson v. State, 375 So.2d 1133 (Fla. 3d DCA 1979), cert. denied, 385 So.2d 758 (1980) this court held that reference to the collateral crimes was not reversible er ror because the defendant’s lifestyle in organized crime was pervasive and integral to the commission of the crime charged. In Horner v. State, 149 So.2d 863 (Fla. 3d DCA 1963), the defendant was charged with extortion by threatening injury to the reputation of the victim if the victim testified against him in a pending criminal action. The court allowed the reference to the other pending criminal action under another recognized exception to the general rule prohibiting evidence of other crimes, holding it was impossible to give a complete or intelligent account of the crime charged without referring to the other pending criminal action.

Although a collateral crime was not specifically identified in the jury’s presence, the occurrence of an uncharged act of violence to the person of the victim was conveyed with certainty. It was reasonable for the jury to infer that the other horrible act was committed by the accused since no one else was on trial.

There is no showing in the trial record nor here on appeal that fact evidence of another crime was relevant to prove any material fact in issue. References to another crime along with the testimony that defendant had just been released from jail were relevant solely to prove bad character or propensity.

The victim’s vague reference to a collateral occurrence, in the awkward circumstance of attempting to explain her prior inconsistent statement, might not alone have been grounds for reversing the conviction. But the mother’s testimony suggesting that her daughter had been injured, the instruction to the police officer in the presence of the jury to limit his testimony to the robbery, and questioning of the defense witness as to the defendant’s whereabouts prior to meeting the defendant (which brought out the “expected” reply that he had been in prison) were deliberate efforts to bring before the jury irrelevant evidence, the cumulative effect of which was to cause prejudice.

The prosecutor’s questioning of both Mrs. Joyce and Mrs. Bobick, which led to two of the complained of errors, was preceded by defense counsel’s vehement objections. Defense counsel knew, and the prosecutor should have known as well, that the line of questioning would evoke a prejudicial response. On both occasions the line of questioning ceased when the improper evidence was brought forth; there was not the slightest suggestion that the inquiry had any other relevancy.

We reverse and remand for a new trial.

      . Outside the presence of the jury the court candidly gave its justification for denying a motion for mistrial:
      MR. GAER: ... if ever I was entitled to a mistrial, I am entitled to one now.
      THE COURT: You might as well go all the way on it. If you want to bring, if this girl wants to explain her answer and say that she’d been raped, go right ahead and let her say it. I see nothing wrong with it, and I see nothing wrong with seven hundred other crimes if that is an explanation of why she lied, and you are asking her why she told two different—

      . Outside the presence of the jury defense counsel made a motion for mistrial:
      * # * * * *
      THE COURT: I am going to deny the motion for mistrial, but I think there may very well be grounds on appeal, I don’t know.. .

      . The concern of the legislature for overzealous misuse of similar crime evidence is manifested in Sections 90.404(2)(b) 1 and 2, Florida Statutes (1979), which require:
      1. When the state in a criminal action intends to offer evidence of other criminal offenses under paragraph (a), no fewer than 10 days before trial, the state shall furnish to the accused a written statement of the acts or offenses it intends to offer, describing them with the particularity required of an indictment or information...
      2. ... after the close of the evidence, the jury shall be instructed on the limited purpose for which the evidence was received... We note in passing, though the point was not preserved below and consequently is not an issue here, that there was no compliance with Section 90.404(2)(b). The statute contemplates a pre-trial determination as to the admissibility of similar crime evidence.

      . The witness would be limited to a more direct response in explaining her inconsistent statements, i.e., fear of violent reprisal, since reference to the collateral crime would not be admissible under Section 90.404(2), Florida Statutes (1979) and the probative value of mentioning the rape would be outweighed by the danger of unfair prejudice. See § 90.403, Fla.Stat. (1979).

      . We think it no coincidence that El Reno, Oklahoma is the location of a federal penitentiary and defendant has served time for a federal conviction.


author: BASKIN, Judge.

text:
    ROBINSON ELECTRICAL CO., INC., Appellant, v. DADE COUNTY and The Dade County Board of County Commissioners, Dade County, Florida, and Marvin Markowitz, Inc., Appellees.
    No. 81-1736.
    District Court of Appeal of Florida, Third District.
    July 13, 1982.
    Rehearing Denied Aug. 25, 1982.

      Jesse J. McCrary, Jr., Miami, for appellant.
    Robert A. Ginsburg, Dade County Atty., and Dianne S. Smith, Asst. County Atty., Carey, Dwyer, Cole, Eckhart & Mason and Michael C. Spring, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

Confronted with circumstances which led the court to believe that bidding requirements for obtaining a contract to renovate a housing project confused bidders, the trial court vacated the award of the contract and ordered the County to reissue its invitation for bids. We hold that the County correctly awarded the contract to the low bidder, Robinson Electrical Company, Inc. Robinson complied with material bidding requirements and was entitled to the contract, even though it furnished its security in the form of a check rather than a bid bond. We therefore reverse the trial court’s order with directions to reinstate the contract award to Robinson.

The Dade County Board of County Commissioners’ Advertisement for Bid in connection with a contract to renovate the James E. Scott Homes provided:

A Certified Check or bank draft, payable to the Dade County Department of Housing and Urban Development — Housing Division — U. S. Government Bonds, or a satisfactory Bid Bond executed by the bidder and acceptable surieties [sic] in an amount equal to five percent (5%) of the bid shall be submitted with each bid. The successful bidder will be required to furnish and pay for satisfactory Performance and Payment of Bond or Bonds.... The Dade County Department of Housing and Urban Development, reserves the right to reject any or all bids and to waive any informalities in the bidding.

Subsequent addenda required that a bid bond in the amount of five percent of a portion of the cost be submitted with the bid. Robinson submitted the lowest bid, $10,368,515, along with a cashier’s check for five percent of the designated cost as security. The second lowest bidder, a company not a party to this appeal, also submitted a cashier’s check. Marvin Markowitz, Inc. submitted the highest bid, $10,700,000; its bid included a bid bond in the correct amount. When the Director of Dade County Housing and Urban Development opened the bids and learned that the two lowest bidders had submitted cashier’s cheeks instead of bid bonds, he asked the County Attorney for his opinion. Upon receiving a recommendation that Robinson’s bid be approved, the Board of County Commissioners awarded the contract to Robinson. Mar-kowitz sued the Board, requesting injunc-tive and mandatory relief; Robinson intervened in the lawsuit. Upon hearing testimony, the trial court found Robinson’s bid to be nonresponsive because it lacked the required form of security. The court vacated the award of the contract to Robinson and ordered the County to reissue an invitation for bids.

Robinson contends that the court erred in vacating an administrative decision which was not shown to be arbitrary or unreasonable. The Board, it contends, correctly waived the immaterial variance in the form of the security; the difference in the security did not affect the nature or purpose of competitive bidding. Furthermore, argues Robinson, the County reserved the right to waive formalities.

Markowitz, on the other hand, argues that since its bid met the qualifications it should have been awarded the contract without reissuance of the invitation for bids.

The County now supports the trial court’s ruling vacating the contract and requiring rebidding and agrees with the finding that the documents were ambiguous. This argument represents a change in the County’s position; the County was aware of the variance in the security when it awarded the contract to Robinson.

Although a bid containing a material variance is unacceptable, Glatstein v. City of Miami, 399 So.2d 1005 (Fla. 3d DCA), rev. denied, 407 So.2d 1102 (Fla.1981), not every deviation from the invitation is material.

In determining whether a specific noncompliance constitutes a substantial and hence nonwaivable irregularity, the courts have applied two criteria — first, whether the effect of a waiver would be to deprive the municipality of its assurance that the contract will be entered into, performed and guaranteed according to its specified requirements, and second, whether it is of such a nature that its waiver would adversely affect competitive bidding by placing a bidder in a position of advantage over other bidders or by otherwise undermining the necessary common standard of competition.
In application of the general principles above discussed, sometimes it is said that a bid may be rejected or disregarded if there is a material variance between the bid and the advertisement. A minor variance, however, will not invalidate the bid. In this context a variance is material if it gives the bidder a substantial advantage over the other bidders, and thereby restricts or stifles competition.

10 McQuillan, Municipal Corporations § 29.-65 (3d Ed. rev. 1981) (footnotes omitted); see Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So.2d 1190 (Fla. 2d DCA 1978).

Whether the submission of a cashier’s check instead of a bid bond constitutes a material variance from bidding requirements has not previously been decided in this jurisdiction. In Bryan Construction Co. v. Board of Trustees, 31 N.J.Super. 200,106 A.2d 303 (App.Div.1954), the court considered the submission of a deposit in the form of a bid bond instead of a certified check as required. In affirming the bid, the court stated:

If it can be said any irregularity here existed, it is patent that competitive bidding was not in any wise affected. It prevented no one from bidding, and all those that did bid were on equal footing, having the same opportunities as defendant company to read and utilize the instructions.

106 A.2d at 306. As did the New Jersey court, we hold that the purpose of competitive bidding is to secure the lowest responsible offer and that the County may waive minor irregularities in effectuating that purpose. See Township of River Vale v. R. J. Longo Construction Co., 127 N.J.Super. 207, 316 A.2d 737 (Law Div. 1974). The submission of a cashier’s check instead of a bid bond does not constitute a material variance.

We find no merit in the argument advanced by Markowitz to the effect that the bid bond, which indicates that a performance bond can be obtained, is substantially superior. The Advertisement for Bid contemplates that the successful bidder would be required to furnish such bonds after the award of the contract. Thus, the availability of a performance bond was immaterial to the bidding process.

Finding that Robinson’s bid substantially complied with the County’s Advertisement for Bid, we reverse the trial court’s order vacating the award of contract to Robinson and reinstate the award.

      . During oral argument, the County advised us that it proceeded with the bidding process during the pendency of this appeal and awarded the contract to another firm. Other than to express our surprise at this unfortunate complication, we refrain from comment. We reject the County’s contention that this appeal is moot.