author: PER CURIAM. SUNDBERG, Chief Justice,

text:
    Marvin FRANCOIS, Appellant, v. STATE of Florida, Appellee.
    No. 54461.
    Supreme Court of Florida.
    Oct. 15, 1981.
    Rehearing Denied Jan. 28, 1982.

      Bennett H. Brummer, Public Defender, and Warren S. Schwartz, Asst. Public Defender, Miami, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., Miami, for appellee.
   PER CURIAM.

This cause is before the Court on appeal of a judgment of the Circuit Court of the Eleventh Judicial Circuit, Dade County, which adjudicated the appellant guilty of six counts of murder in the first degree, along with additional crimes, pursuant to which six sentences of death were imposed upon him. This Court has jurisdiction of his appeal. Art. V, § 3(b)(1), Fla.Const.

The appellant was convicted on six counts of first-degree murder, two counts of attempted first-degree murder, and three counts of robbery. The evidence showed that in the early evening of July 27, 1977, John Errol Ferguson gained admittance to the home of Livingston Stocker in the Carol City section of Miami by posing as a power company employee. Margaret Wooden was present in the home at the time. After entering, Ferguson bound Wooden’s hands and blindfolded her. Then he admitted Beauford White and the appellant Marvin Francois. The three men searched the house for valuables, taking some firearms and some of Margaret Wooden’s jewelry. Then the three men covered their faces with masks.

Shortly thereafter Livingston Stocker arrived home with five friends — Henry Clayton, Johnny Hall, Randolph Holmes, Charles Stinson, and Gilbert Williams. The intruders tied the six men up and took their valuables. Still later Michael Miller, Livingston Stocker’s nephew, arrived at the house. He too was tied up and robbed.

The appellant’s mask then slipped off and he declared that all the victims would have to be killed. Ferguson took Margaret Wooden and Michael Miller into a bedroom and shot them both in the head with a pistol. Appellant Francois took the other six victims into another bedroom, made them lie down on the floor, and shot them each in the head with a shotgun.

After the three attackers departed, Margaret Wooden ran to a neighbor’s house to call for help. When the police arrived they found Johnny Hall crawling toward the back door of the house. Both Wooden and Hall survived and testified at trial. The other six victims died. At trial, Johnny Hall identified the appellant as the man who shot him and five others with a shotgun. Theresa Rolle testified that Francois admitted to her his participation in the murders.

Adolpus Archie testified that he took Francois, Ferguson, and White to Stocker’s home in his car and waited for them down the street. He testified further that it was unnecessary for him to pick the other three up and drive them away since they departed the scene in Stocker’s car. Archie met the other three later and assisted in disposing of evidence. He testified that appellant Francois told him that the real purpose of the venture was not robbery but murder. Francois stated further, according to Archie’s testimony, that he and Ferguson had done the shooting. Archie pled guilty to second-degree murder and received a sentence of twenty years imprisonment.

Prior to trial, appellant moved to dismiss the indictment on the ground that'it was issued by a grand jury selected under a procedure that systematically excludes minorities from participation. He moved also for an evidentiary hearing on the motion, and for discovery of the master list from which grand jurors are drawn.

Appellant, in essence, presents three issues on appeal of the judgments of conviction. He contends first that the evidence presented at trial was insufficient to support the judgments of conviction. We find, however, that the judgments were rendered pursuant to jury verdicts that were based on competent, substantial evidence. Appellant’s first argument is without merit.

Secondly, appellant argues that he should have been granted a new trial because of newly discovered evidence and because the evidence in question was known to the state at the time of trial but not disclosed to him. Appellant’s motion for new trial alleged that shortly before sentencing a woman named Sheila Walker approached defense counsel and said that appellant was with her at 11:00 p.m. on the night of the murders. The motion asserted that this was newly discovered evidence and that the state had suppressed information concerning the identity and whereabouts of this witness. If anyone had known about this witness and her possible value to the accused for alibi purposes, however, it would have been the defendant. Furthermore, the evidence showed that the murders were committed well before 11:00 p.m., so the testimony it was alleged the witness would give would not have been probative and would not have changed the outcome. See United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Thomas v. State, 374 So.2d 508 (Fla.1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980). Therefore, appellant’s contentions on this issue are without merit.

Thirdly, appellant contends that the judgments must be reversed because to try a defendant under an indictment returned by a grand jury from which persons of a particular race have been systematically excluded denies equal protection of the law. Appellant’s motion to dismiss alleged that there had been for a number of years a substantial disparity between the percentage of blacks and Hispanics in Dade County’s eligible population and the percentage serving on grand juries. He contends that in order for him to have made out a prima facie case of discriminatory selection, which would have required a showing of justification from the state, he needed to have access to the grand jury master list and also should have been afforded an evidentiary hearing.

Appellant argues that his affidavits and proffered exhibits demonstrated a disparity that was unlikely to be due to chance, thus entitling him to discovery of the master list and an evidentiary hearing. See Castanda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); Dykman v. State, 294 So.2d 633 (Fla.1974); Rojas v. State, 288 So.2d 234 (Fla.1973); Seay v. State, 286 So.2d 532 (Fla.1973), cert. denied, 419 U.S. 847, 95 S.Ct. 84, 42 L.Ed.2d 77 (1974). In response the state argues that the appellant waived his right to raise this issue by not timely filing his motion. The state refers us to section 905.05, Florida Statutes (1977), which provides:

A challenge or objection to the grand jury may not be made after it has been empaneled and sworn. This section shall not apply to a person who did not know or have reasonable ground to believe, at the time the grand jury was empaneled and sworn, that cases in which he was or might be involved would be investigated by the grand jury.

We find that this statute does not apply to the instant case. Rather, we conclude that the time limit for the filing of the motion to dismiss was governed by Florida Rule of Criminal Procedure 3.190(c), which provides that a motion to dismiss is to be made either before or upon arraignment unless the court grants further time. The motion here was timely filed because the court granted the appellant additional time in which to file his motion.

Although we find that the motion was timely filed, we hold that appellant waived his right to appeal the denial of his motions for discovery, for a hearing, and to dismiss the indictment, by failing to diligently pursue the matter and by inducing the trial court to rule against him. The record shows that appellant’s motion came up for consideration at a pre-trial hearing held January 3, 1978, at which other motions were argued. At that hearing appellant’s counsel stated:

The only other motion that I filed is the motion to dismiss the Grand Jury indictment based on the Blue Ribbon Grand Jury and requesting an evidentia-ry hearing on that point, but it — I am going to forego any arguments on that. In fact, I am not going to ask for a hearing on it until a later date simply because I do not think there is any way I can get this case to trial by next week.

Transcript of Proceedings, vol. I, at 12-13. Further pre-trial hearings were held on February 21 and 23, 1978, and again the matter was not brought up by defense counsel. On February 27 defense counsel declared that he was ready for trial. However, the trial was not finally scheduled to begin until April 17. On that day defense counsel, Mr. Diamond, brought the motion to dismiss to the court’s attention and the following exchange ensued:

MR. DIAMOND: Your Honor, just before we start on the motion to suppress, I am not sure what pretrial motions have at this point been granted and have not, because of the fact that we have three defendants. Now there are four. Well, four defendants have been charged throughout. '
There were motions to adopt based on all motions previously filed. I filed a motion to dismiss the grand jury indictment in this case originally. I believe it was dismissed — I mean, it was not dismissed by this Court. It was dismissed in other courts with regard to these defendants. This Court did not dismiss the indictments against them.
THE COURT: That is true. I find the grand jury was legally constituted, and I deny the motions.
MR. DIAMOND: Fine.

Transcript of Proceedings, vol. I, at 40.

This exchange reveals that defense counsel practically invited the court to rule against him. A favorable ruling on the motion would have resulted, possibly, in the convening of a new grand jury and the issuance of a new indictment, or at least in a delay of the trial for purposes of discovery or an evidentiary hearing or both. Yet the record also reveals that appellant and his counsel did not press for a pretrial ruling because they did not want to delay the trial. The defense tactic was to delay the deciding of the claim of grand jury illegality until just before trial, in hopes of upsetting the conviction on appeal. See Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973). We cannot condone such tactics and therefore refuse to consider this issue on appeal.

Finding no merit in any of appellant’s challenges to the convictions, we affirm them.

We come now to consideration of the sentencing proceeding and sentences of death. Appellant presents a series of arguments with regard thereto.

Appellant argues that section 921.-141, Florida Statutes (1977), violates due process by arbitrarily establishing a presumption that death is the appropriate sentence in a felony murder situation, because the existence of the underlying felony can be used to aggravate the capital felony. Appellant has no standing to make this argument since the evidence shows that he was the actual perpetrator of five premeditated murders and was a first-degree principal in one other murder. Moreover, we recently rejected this argument when it was presented by an appellant who has standing to raise it. White v. State, 403 So.2d 331 (Fla.1981).

The judge found that appellant had twice previously been convicted of a violent felony, section 921.141(5)(b), Florida Statutes (1977); that in committing the crimes appellant knowingly created a great risk of death to many persons, Id. § 921.141(5)(c); that the crime was committed for the purposes of avoiding or preventing lawful arrest and disrupting law enforcement, Id. § 921.145(5)(e) & (g); that the crimes were committed during the course of a robbery and for pecuniary gain, Id. § 921.141(5)(d) & (f); and that the capital felonies were especially heinous, atrocious, and cruel. Id. § 921.141(5)(h). The judge also found that there were no mitigating circumstances.

Appellant contends that the finding that he had been previously convicted of violent felonies was not supported by sufficient evidence. At the sentencing hearing the state called as a witness a court clerk who brought along court files from two prior criminal prosecutions of a person named Marvin Francois. Copies of documents from those files — a judgment of conviction for robbery and a judgment of conviction for aggravated battery and possession of a firearm during a criminal offense — were admitted into evidence. Appellant claims that these documents were an insufficient basis upon which to conclude that he had the prior convictions. He argues that the state should have been required to do more in order to prove beyond a reasonable doubt that he was the same Marvin Francois named in the documents. We disagree and hold that the copies of judgments of conviction for violent felonies naming Marvin Francois as the convicted defendant constituted sufficient proof of the aggravating factor. Appellant could have rebutted the information or challenged the accuracy of the documents had he chosen to try to do so.

In further carrying its burden of showing this aggravating circumstance, the state presented the testimony of the assistant state attorney who had prosecuted appellant on his aggravated assault charge. On cross-examination, defense counsel asked the witness whether, the judgment was based upon a negotiated plea with a sentence of probation. The court sustained the state’s objection to this inquiry, reasoning that the judgment of conviction spoke for itself in establishing the factor of previous conviction of a violent felony.

Appellant argues that the court erred in not allowing inquiry into the background of the aggravated assault conviction. In Elledge v. State, 346 So.2d 998 (Fla.1977), the state at the sentencing hearing called as a witness the relative of the victim of a murder, other than the one for which the defendant was being tried, to testify about the details of the other murder. This Court held that this was appropriate “because we believe the purpose for considering aggravating and mitigating circumstances is to engage in a character analysis of the defendant to ascertain whether the ultimate penalty is called for in his or her particular case.” Id. at 1001. Conversely, a defendant must be allowed to present evidence pertaining to the degree of his or her involvement in and the circumstances of the events upon which previous convictions are based. This principle does not compel the conclusion, however, that the court’s sustaining the objection requires vacation of the death sentence. The defense made no proffer of its own of matters relating to the gravity of appellant’s previous criminal activity. The defendant was of course perfectly free to do so. It would be a different case if the court had excluded evidence proffered by the defendant rebutting the state’s evidence of aggravation or relative to any matter in mitigation. See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Miller v. State, 332 So.2d 65 (Fla.1976).

The appellant argues that the trial court erred in finding that the capital felonies were especially heinous, atrocious, or cruel. We hold that the finding can be sustained on the basis of the mental anguish inflicted on the victims as they waited for their “executions” to be carried out. White v. State, 403 So.2d 331, No. 54,292 (Fla.1981).

The appellant also argues that the trial court erred in finding that in committing the capital felonies, the appellant knowingly created a great risk of death to many persons. We agree that this finding was error. There were six separate homicides, but the court’s conclusion that many other persons were endangered was based on the speculation that any others who approached the house would have been killed. The existence of aggravating circumstances may not be established by speculation. White v. State, 403 So.2d 331, (Fla.1981).

The appellant argues further that the trial court erred by separately considering the facts that the murders were committed in the course of robberies and that they were committed for pecuniary gain. Separate consideration of factors that are essentially based on the same aspect of the crimes is error. White v. State; Provence v. State, 337 So.2d 783 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977). By finding both statutory aggravating circumstances, the trial court committed such error.

Appellant makes the same kind of “doubling up” argument with respect to the trial court’s findings that the murders were committed to avoid or prevent a lawful arrest and that they were committed to disrupt or hinder the enforcement of the laws. Again, we find merit to appellant’s argument and hold that the principle against double consideration of a single factor in aggravation was violated by the sentencing judge. White v. State; Provence v. State.

Although the trial court’s sentencing errors resulted in the recitation of three statutory aggravating circumstances that were not properly established by the evidence, we find that the sentences of death should still be upheld. Where the consideration of erroneous aggravating circumstances does not interfere with the weighing process prescribed by statute because there are no mitigating circumstances to weigh, no resentencing is required. See Hargrave v. State, 366 So.2d 1 (Fla.1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979); Elledge v. State, 346 So.2d 998 (Fla.1977).

The appellant, having been twice previously convicted of felonies involving the use or threat of violence, was convicted of six premeditated, execution-style murders committed in the course of committing robbery, and for the purpose of eliminating the witnesses to his crimes of robbery. The murders were especially heinous, atrocious, and cruel. There were four statutory aggravating circumstances. There were no mitigating circumstances. The jury recommended death. We affirm the judgments of conviction and the sentences of death.

It is so ordered.

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

SUNDBERG, C. J., dissents with an opinion.

SUNDBERG, Chief Justice,

dissenting.

I dissent from the majority’s refusal to consider the issue of systematic racial un-derrepresentation on Dade County grand juries. The majority asserts that defense counsel “practically invited the court to rule against him” on the grand jury issue in order to secure a reversal of the conviction on appeal. That is a heady accusation which, to my mind, is unsubstantiated in the record.

On January 3, 1978, counsel for appellant filed a motion to dismiss the indictment and request for evidentiary hearing on the grand jury issue. The motion was accompanied by an impressive array of over seventy pages of affidavits and supporting data. If the record reveals anything, it reveals that appellant wanted to defer consideration of the grand jury claim simply in order to prepare adequately for that and the other numerous issues in this complex trial. When the motion came up for argument (timely, as the majority notes), the court denied it out of hand, without benefit of evidentiary hearing. The trial judge did not find the claim to have been waived, but rather specifically denied it on the merits. At that point counsel could do no more to assert his claim.

Because I believe appellant proffered material facts to establish a prima facie claim of an illegally composed grand jury, he had a constitutional right to an evidentiary hearing on that issue. Coleman v. Alabama, 377 U.S. 129, 84 S.Ct. 1152, 12 L.Ed.2d 190 (1964); Dykman v. State, 294 So.2d 633 (Fla.1973). The majority denies appellant that right because, on the most sparse of records, it perceives that counsel invited that court error. I would not be so quick to impute perfidious motives to defense counsel.


source: Caselaw Access Project

author: ADKINS, Justice.

license: Public Domain

text:
    Mark MIKENAS, Appellant, v. STATE of Florida, Appellee.
    No. 49928.
    Supreme Court of Florida.
    Nov. 5, 1981.
    Rehearing Denied Jan. 28, 1982.
    Judge C. Luckey, Jr., Public Defender for the Thirteenth Judicial Circuit, Bruce P. Cury, Chief Asst. Public Defender, Tampa, and Jerry Hill, Public Defender for the Tenth Judicial Circuit, Bartow, for appellant.
    Jim Smith, Atty. Gen. and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appel-lee.
   ADKINS, Justice.

This is the second appeal taken from a sentence of death imposed after a conviction for murder in the first degree. On the first appeal, we affirmed the conviction, but remanded the case to the trial court for resentencing without further deliberations by a jury. Mikenas v. State, 367 So.2d 606 (Fla.1979). The trial court had improperly considered the fact that defendant had a substantial history of prior criminal activity as an aggravating circumstance.

Upon remand, defendant filed a Motion for Evidentiary Hearing and Advisory Sentence by Jury. The court denied this motion and subsequently sentenced defendant to death. In the findings of fact in support of the death penalty, the court listed the presence of all the aggravating circumstances which were present in relation to the original sentence with the exception of the nonstatutory circumstance of substantial history of prior criminal activity. For mitigating circumstances, the judge listed the age of the defendant at the time of the offense (22) as possibly constituting a mitigating offense.

Defendant raises the following four issues on appeal: the trial court erred by (1) refusing to impanel an advisory jury, (2) failing to consider and weigh evidence of statutory and nonstatutory mitigating factors, (3) finding that the murder was committed both for pecuniary gain and in perpetration of a robbery and (4) failing to strike all or part of the presentence investigation. We find merit in none of these arguments and accordingly affirm the sentence.

In our original decision, we specifically remanded for resentencing “without further deliberations by a jury.” 367 So.2d at 610. Defendant contends that a contrary procedure is dictated by Elledge v. State, 346 So.2d 998 (Fla.1977), wherein we set aside a death sentence and remanded for a new sentencing trial because the trial court had considered as a nonstatutory aggravating factor evidence concerning an alleged murder not within the res gestae of the murder for which the defendant was being tried and which had not resulted in a conviction at the time of the trial. However, Elledge is not relevant. In this case, the evidence itself was not improper, only the manner in which it was considered by the court in its findings of fact. It was not improper for the jury or court to consider the evidence of defendant’s prior criminal history in relation to the mitigating circumstance it was obviously intended to counter, that is, the lack of a significant history of prior criminal activity.

The situation in the case sub judice is similar to that in Fleming v. State, 374 So.2d 954 (Fla.1979), wherein we held that the trial court erred in finding an aggravating circumstance. Therein, we also remanded for resentencing by the court without further recommendation from the jury. Similar to the situation here, the error there had occurred in the court’s specific findings and was therefore to be corrected by the court rather than the jury.

In relation to defendant’s second point, defendant argues that the new testimony heard by the court was not considered properly in its findings. The testimony heard consisted of two psychologists concerning the possibility of defendant’s rehabilitation and a minister concerning his alleged progress in religion. Their testimony was not considered as a mitigating circumstance by the court. The testimony was apparently permitted by the trial court in an abundance of fairness to defendant, but the court was not required to give it weight as a mitigating circumstance.

The facts herein are similar to those in Songer v. State, 365 So.2d 696 (Fla.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979), a death sentence case where we remanded for resentencing because of an apparent noncompliance with guidelines announced in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). Upon remand, the trial judge refused to take testimony from prison inmate character witnesses. In upholding the trial court’s denial of issuance of subpoena for this purpose, we stated that appellant had been afforded ample opportunity to present evidence in mitigation in the original sentencing proceeding. The same reasoning applies here.

Defendant’s third point is equally unavailing. The trial court found that the capital felony was committed while the defendant was engaged in the commission of a robbery and also that it was committed for pecuniary gain. In its finding concerning the “pecuniary gain” circumstance, the court specifically stated that it was considered in conjunction with “robbery” circumstance. This is not contrary to the dictates of Provence v. State, 337 So.2d 783 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977), wherein we held that in all robbery-murders only one of these two aggravating circumstances can be found. We assume that the judge had Provence in mind when he specifically considered these two circumstances in conjunction. The word “conjunction” itself connotes a joining together to form one. While it may have been better practice to omit one of the factors completely in deference to the other, we cannot say that failure to do so is error.

Defendant’s last point concerning the presentence investigation report is without merit. The trial court is entitled by Rule 3.710, Florida Rules of Criminal Procedure, to draw its own conclusion from information in the report in capital cases. Swan v. State, 322 So.2d 485 (Fla.1975). In accordance with the dictates of Gardner, supra, the defendant was provided an opportunity to rebut.

Accordingly, the sentence of death is hereby affirmed.

It is so ordered.

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


author:
ADKINS, Justice.
      ALDERMAN, Justice,

text:
    Jimmy Lee SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 55961.
    Supreme Court of Florida.
    Nov. 12, 1981.
    Rehearing Denied Jan. 28, 1982.

      Michael M. Corin and John D. C. Newton, II, Asst. Public Defenders, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   ADKINS, Justice.

Appellant, Jimmy Lee Smith, was convicted of the first-degree murders of Bonnie Ward and her twelve-year-old daughter, Donna Strickland. The trial judge imposed the death sentence in accordance with the jury’s advisory sentence recommendation. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

Appellant had spent the night before the murders as a guest in Mrs. Ward’s home, and during the course of the evening both of his victims had spoken disparagingly of his girlfriend and her mother. Appellant’s girlfriend was referred to as a whore and her mother’s childrearing abilities criticized. On the day of the murders, appellant rode with Mrs. Ward, her three-year-old son, two-year-old daughter, and Donna to run several errands. During this trip, his girlfriend and her family were again criticized, and at that time appellant evidently decided to kill Mrs. Ward and Donna. On the way home from the errands, Mrs. Ward complied with appellant’s request that she drive down a deserted country road to a spot where he claimed to have hidden a bundle of clothing which he wished to retrieve. After arriving at the spot, appellant ordered the children to stay in the car and forced Mrs. Ward, who by then realized that the request was a ruse, over her protestations and pleas, to accompany him on foot around a bend in the road. Once he thought that they were out of the sight of the children in the car, appellant began choking Mrs. Ward, exhorting her to “Die, Bitch.” After Mrs. Ward had lost consciousness, Donna, who had left the car to look for the two adults, came upon the scene, whereupon appellant grabbed and began choking her also. Encountering difficulty in choking Donna with his hands, appellant held her by the neck with one hand and with the other took from his pocket a piece of cord which he then used to choke her.

After Donna lost consciousness, appellant undressed his still-living victims and stabbed each repeatedly in the chest, inflicting multiple wounds on both. Whatever it was that drove him still not satisfied, he proceeded to slit Mrs. Ward’s throat and to cut open Donna’s chest and look at her heart. Once he finished, appellant wrapped the bodies in blankets, left them in the brush, and drove the two younger children home, where he fed them and put them to bed. He was picked up the next day by an officer who saw him hitchhiking.

Appellant now asks this Court to order a new trial or, at least, a new sentencing hearing to remedy the errors which he contends occurred during his trial. We address the issues on appeal in the order in which he raises them.

First, appellant contends that he was denied due process of law and equal protection of the laws within the meaning of the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 9, of the Florida Constitution. In support thereof, he asserts that the trial court failed to properly instruct the jury on the weight to be given his confessions, and instead improperly commented thereon as evidence during the trial.

We do not agree with appellant’s argument that the trial court improperly commented on the weight of the confession evidence during the course of the trial. The comments complained of are the following, made at various times during the proceedings:

The Court has ruled that the statement has been freely and voluntarily given by the Defendant, Jimmy Lee Smith, and admitted into evidence. It will be for your consideration at this time.
* * * * * *
The Court will rule that this statement was freely and voluntarily given. It will be admitted into evidence at this time. * * * # * *
The Court will rule that that statement was freely and voluntarily given and will now be admitted into evidence.

We see the statements as attempts to comply with the requirement expressed in Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967), that the trial court clearly indicate, in the record, its conclusion that any confession admitted into evidence was voluntarily made:

[I]t is not for the jury to make the primary determination of voluntariness. Although the judge need not make formal findings of fact or write an opinion, his conclusion that the confession is voluntary must appear from the record with unmistakable clarity.

Id. at 544, 87 S.Ct. at 643.

Referring to the same topic, this Court stated as follows:

The requirement of the Fourteenth Amendment is that the trial judge make a determination that a confession was freely and voluntarily given before he allows it to be considered by a jury. A specific finding of voluntariness is necessary to ensure that a judge has properly met this requirement.

McDole v. State, 283 So.2d 553, 554 (Fla.1973) (citations omitted).

The judge in the case sub judice was doing just that: making, with unmistakable clarity, a finding for the record that appellant’s confessions were voluntarily made. His comments, therefore, were not improper.

Appellant’s other argument, that the court failed to instruct the jury on the weight to be given his confessions, is a valid point. We do not agree, however, that the error warrants a new trial. Appellant correctly states that the “law of the case” upon which the judge must charge the jury includes the weight to be given confessions. See § 918.10(1), Fla.Stat. (1977); Fla.R. Crim.P. 3.390(a); Harrison v. State, 149 Fla. 365, 5 So.2d 703 (1942). Appellant then cites several cases in which failure to so instruct the jury was found to be grounds for reversal and award of a new trial. The cases cited are not, however, on “all-fours” with the case at hand.

In Harrison v. State the defendant was never placed on the stand and never testified before the jury. It was acknowledged that there could have been no conviction without the confession, and defendant’s counsel objected to the admission into evidence of the confession. In its decision, this Court held that the trial court had erred by not instructing the jury on the law of the case because it had a duty to do so “under the circumstances of this case." Id. 5 So.2d 707 (emphasis added).

Brown v. State, 124 So.2d 481 (Fla.1960), which was also cited by appellant and which concerned the propriety of jury instructions on degrees of homicide, simply cited Harrison as an example of how failure to advise the jury on the weight to be given a confession could be fundamental error.

Bunn v. State, 363 So.2d 16 (Fla.3d DCA 1978), cert. denied, 368 So.2d 1373 (Fla.1979), addressed the propriety of a trial court’s refusal to give the jury instructions regarding evaluation of certain admissions which the defendant had made. The district court reversed the conviction, emphasizing that a request for instructions had been made:

[T]he failure of the trial court, pursuant to appellant’s request for such an instruction prior to the time the jury retired, to give either the Florida Standard Jury Instruction (criminal) 2.13(i) or another appropriate instruction constituted reversible error.

Id. at 17 (emphasis added).

The case sub judice is distinguishable from those cited by appellant. The state did not rely entirely on appellant’s confession to obtain a conviction. There was evidence presented, other than appellant’s confession, upon which the conviction could be based. On Monday morning Bonnie Ward, Donna, and the two small children were in the Ward vehicle with defendant. They went to a hospital and visited another daughter, Dana, at about 11:30 a.m. Bonnie Ward was wearing her watch.

In mid-afternoon defendant went to a bank and attempted to cash a check. He was alone in Bonnie’s automobile. When a policeman approached, defendant fled in the car. After a high speed chase, he eluded the officer.

On Tuesday defendant was arrested while hitchhiking. He had abandoned the vehicle, but had a knife and Bonnie’s watch in his possession.

On Wednesday the small child was able to communicate with the officers so that they were led to the scene of the crime. This evidence was sufficient to show, beyond a reasonable doubt, that defendant was with the victims at the time of the murder. This, considered with the theft of the watch, possession of a knife suitable for use in committing the homicides, and the flight of the defendant, amounts to clear proof of the guilt of defendant.

We have held that where there exists other evidence, in addition to a confession, sufficient to sustain a conviction, failure by a court to, of its own motion, charge a jury regarding the consideration to be given said confession is not error requiring a new trial. See Brunke v. State, 160 Fla. 43, 33 So.2d 226 (Fla.1948).

Nor contrary to the cited cases, does there seem to be any reason to doubt the validity and voluntariness of appellant’s confession. During the sentencing phase he personally addressed the jury, admitted to having committed the murders, and asked for imposition of the death penalty.

It also bears note that appellant did not request that instructions be given the jury and did not object when the court failed to do so. In the cases cited, either a request for instructions was made or an objection raised to the absence thereof.

We therefore do not find the trial court’s failure to instruct the jury regarding appellant’s confessions to be “fundamental error,” cognizable for the first time on appeal and requiring reversal of the trial court’s decision. Unlike the cited cases, whatever error that may have occurred here was harmless error, and the circumstances of this case do not warrant a new trial as a result thereof.

Appellant next argues that because a complete record of the proceeding below is not available for review by this Court (appellant’s counsel’s closing argument at the guilt phase of the trial was not recorded), the decision should be vacated and remanded. We decline to do so because it was appellant’s counsel that instructed the court reporter not to report his final argument. Clearly, had the appellant been deprived the opportunity of a complete review through no fault of his own, there would be precedent for vacating the trial court’s decision. Delap v. State, 350 So.2d 462 (Fla.1977). But the right to review by an appellate court of the whole record may be relinquished, hence, our observation in Delap that “[i]n the absence of a waiver, the defendant has a right to complete review.” Id. at 463, n. 1. (emphasis added). The right to a complete review here was waived when appellant’s counsel instructed the court reporter not to record his closing argument, and appellant is not entitled to a new trial on the basis of the reporter’s compliance with those instructions.

On the same point, appellant also argues that Rule 2.070(b), Florida Rules of Judicial Administration, mandates vacation of the trial court’s decision. That rule provides:

(b) Record When trial proceedings are being reported, no part of the proceedings shall be omitted unless all of the parties agree to do so and the court approves the agreement.

While there is no showing that the parties agreed to omit recordation of appellant’s counsel’s closing argument, or that the court approved of such, it was, nevertheless, appellant’s counsel that instructed the court reporter not to record his closing argument, and in the absence of fundamental error appellant may not now raise the matter on appeal.

Contrary to appellant’s argument in his third point on appeal, we have held that section 921.141, Florida Statutes, does not violate the requirements of article V, section 2(a), Florida Constitution, by attempting to govern practice and procedure. See Dobbert v. State, 375 So.2d 1069 (Fla.1979), cert. denied, 447 U.S. 912, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980).

We are not convinced, as appellant next contends, that heretofore unconsidered evidence of mental deficiencies on his part compels a new trial “in the interest of justice.” Appellant was examined and tested by two psychologists whose findings were then considered by the judge and jury. Although the psychologists recommended that appellant undergo further tests, he specifically declined to do so, and, at the sentencing portion of his trial, tendered no evidence regarding a possible mental deficiency-

Furthermore, despite appellant’s contention to the contrary, the psychological findings which were considered are not so internally inconsistent as to be almost useless. The psychological report stated, in part:

Even if an organic disorder were found to be present, we feel that it would not minimize the long standing maladaptive features of his personality nor would it render him legally insane. The critical aspect is that Jimmy has a chronic history of difficulty in being aware of [,] accepting [,] and dealing with his feelings of anger. In fact, the personality evolution points to a profound deficiency in character development and the associated problems in impulse control. Should, however, an organic disorder be detected, we would be willing to render an opinion regarding possible mitigating circumstances.

The doctors’ report is unequivocal; appellant was not legally insane.

The supplemental report which appellant now seeks to have considered was never before the trial court because at that stage of the proceedings appellant refused to undergo further testing. Now he seeks to undo his prior action. Appellant charted his own course, willingly and knowingly, and the psychological report weighed by the judge and jury was definite, proper and consistent. There was no error.

Appellant’s next point on appeal is that the exclusion of three jurors who expressed opposition to the death penalty violated his Sixth Amendment right to a jury chosen from a random cross-section of the community. More specifically, appellant contends that the excusal of the three did not comport with the United States Supreme Court’s ruling in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In light of the testimony by each of the jurors in question that under no circumstances would he vote to put a person to death, we are of the opinion that the Witherspoon holding was complied with, and that they were properly excused for cause. See Fleming v. State, 374 So.2d 954 (Fla.1979); Foster v. State, 369 So.2d 928 (Fla.), cert. denied, 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 (1979); and Jackson v. State, 366 So.2d 752 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979).

Appellant’s sixth point on appeal, that the trial court erred by allowing him to waive representation by counsel at the sentencing phase of his trial, is also without merit. At the outset, we note that self-representation by a defendant in a criminal proceeding is not per se improper. “[I]n the absence of unusual circumstances an accused who is mentally competent and sui juris has the right to conduct his own defense without counsel by virtue of Section 11, Declaration of Rights, Florida Constitution.” State v. Capetta, 216 So.2d 749, 750 (Fla.1968), cert. denied, 394 U.S. 1008, 89 S.Ct. 1610, 22 L.Ed.2d 787 (1969). The waiver of one’s right to counsel must, however, be an intelligent and knowing relinquishment of such representation. This Court, when faced with a question regarding the propriety of such a waiver in Goode v. State, 365 So.2d 381 (Fla.1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979), cited the decision of the United States Supreme Court in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), which noted:

Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that record will establish that “he knows what he is doing and his choice is made with eyes open.”
Here, weeks before trial, Faretta clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel. The record affirmatively shows that Faretta was literate, competent, and understanding, and that he was voluntarily exercising his informed free will. The trial judge had warned Faretta that he thought it was a mistake not to accept the assistance of counsel, and that Faretta would be required to follow all the “ground rules” of trial procedure. We need make no assessment of how well or poorly Faretta had mastered the intricacies of the hearsay rule and the California code provisions that govern challenges of potential jurors on voir dire. For his technical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself.

Id. at 835-36, 95 S.Ct. at 2541. (Citation and footnotes omitted.)

Applying the Faretta criteria in the case sub judice, we do not find appellant’s waiver of counsel to have been improperly permitted. The record makes it quite clear that appellant wanted to make the closing argument at the sentencing phase of his trial himself rather than have his attorney do so. It also makes it clear that he was literate, competent, and understanding. He was apprised of the danger of what he was doing, of the seriousness thereof, and that a very real result might be imposition of the death penalty. He was warned that the prosecutor would not “back up,” regardless of who made the closing argument for the defense, and would vigorously seek the death penalty. He was strongly urged to allow his attorney to make the closing argument, but insisted on doing so himself.

We need not inquire whether appellant knew all of the specifics regarding aggravating and mitigating circumstances and the like. Paraphrasing the opinion in Far-etta, we need make no assessment of how well or poorly appellant mastered the intricacies of the sentencing process, for his technical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself. The trial judge questioned appellant closely concerning his desire to make the closing argument himself. Appellant was warned of the dangers of what he was doing and discouraged from doing so. He was not lightly allowed to follow the course which he chose. The court fulfilled its obligation, as enunciated in Faretta, and no reversible error occurred.

In the seventh point on appeal, appellant contends that the trial court erred in sentencing by considering his uncorroborated confessions to various crimes when there was “no showing of a corpus delicti for any prior offenses.” Appellant argues that the trial judge’s finding of a significant history of prior criminal activity, when there was no evidence of such other than statements made by appellant, violated the corpus delicti principle. However, that principle, which requires some independent proof of a crime other than a confession before one may be convicted, does not mandate the reversal suggested, for the following reasons.

Section 921.141, Florida Statutes (1979), lists the aggravating and mitigating circumstances to be considered in determining an appropriate sentence in a capital case. Section 921.141(6)(a) provides that lack of a significant history of prior criminal activity is to be considered a mitigating factor. Noting that aggravating circumstances must be proven beyond a reasonable doubt, State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974), and the particular need for accuracy when a life is at stake, appellant argues that there must be competent, independent proof of significant prior criminal activity in order to negate the mitigating circumstance established by section 921.141(6)(a). We have, however, specifically held otherwise.

In Washington v. State, 362 So.2d 658 (Fla.1978), cert. denied, 441 U.S. 937, 99 S.Ct. 2063, 60 L.Ed.2d 666 (1979), a death sentence was appealed from in part on the basis of an allegedly improper refusal by the court to consider lack of a significant history of prior criminal activity as a mitigating circumstance. The trial court had refused to recognize the alleged mitigating circumstance because the appellant had carried on a course of burglaries, had stolen property for a significant period of time, and had confessed and testified to such in open court. The appellant asserted that the trial court had acted improperly, that on the basis of our decision in Provence v. State, 337 So.2d 783 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977), previous convictions are required to negate section 921.141(6Xa). We upheld the trial court, however, observing:

[Appellant] misconstrues the holding of Provence. That case construed Section 921.141(5)(b) which requires previous conviction of another capital felony involving the use or threat of violence. .. . Section 921.141(6)(a) makes no reference to conviction and, hence, Provence has no application to the instant case.

Washington, at 666-67.

Thus in the case sub judice, as in Washington, the trial court, on the basis of confessions made by the appellant, properly found that the appellant had a significant history of prior criminal activity which negated the otherwise applicable mitigating circumstance of section 921.141(6Xa).

Nor, proceeding to appellant’s eighth point on appeal, did the trial court err in sentencing by refusing to find as mitigating circumstances that the appellant was under the influence of extreme mental or emotional disturbance and/or that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. See sections 921.141(6)(b) and (f). Although consideration of all mitigating circumstances is required by the United States Constitution, Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the decision of whether a particular mitigating circumstance in sentencing is proven and the weight to be given it rest with the judge and jury. Lucas v. State, 376 So.2d 1149 (Fla.1979).

The appellant cites several cases in which the mitigating circumstances of sections 921.141(6)(b) and/or (f) were applied as a result of evidence pertaining to the defendant’s state of mind. In two of these cases, Burch v. State, 343 So.2d 831 (Fla.1977), and Shue v. State, 366 So.2d 387 (Fla.1978), we reversed death sentences because the trial judges had ignored the juries’ recommendations of a life sentence. Although both cases demonstrate that evidence regarding a defendant’s mental state may be taken in mitigation, their greater emphasis seems to be on the deference which is to be accorded a jury’s sentencing recommendation. The jury here recommended imposition of the death penalty.

Also cited is our decision in Huckaby v. State, 343 So.2d 29 (Fla.), cert. denied, 434 U.S. 920, 98 S.Ct. 393, 54 L.Ed.2d 276 (1977), in which we vacated a death sentence for failure by the trial court to recognize the existence of certain mitigating circumstances. Explaining why the lower court ought to have recognized the mitigating circumstances, we noted:

The trial judge ignored every aspect of the medical testimony in this case when he found that no mitigating circumstances existed. There was almost total agreement on Huckaby’s mental illness and its controlling influence on him. Although the defense was unable to prove legal insanity, it amply showed that Huckaby’s mental illness was a motivating factor in the commission of the crimes for which he was convicted. Our review of the record shows that the capital felony involved in this case was committed while Huckaby was under the influence of extreme mental or emotional disturbance, and that while he may have comprehended the difference between right and wrong his capacity to appreciate the criminality of his conduct and to conform it to the law was substantially impaired. These findings constitute two mitigating circumstances which should have been weighed in determining his sentence.

Id. at 33-34.

While the situation in Huckaby warranted an invasion of the trial court’s domain, such is not the case here. The trial court here did not ignore every aspect of the medical testimony regarding the appellant; rather, it found that the medical testimony simply did not compel application of a mitigating factor in sentencing. Unlike the court in Huckaby, the trial court did not improperly refuse to recognize certain mitigating circumstances; rather, it considered the evidence presented regarding the defendant’s mental state and then made its decision, which we are not to disturb unless absolutely required to do so.

Relevant to this situation is our decision in Lucas v. State, wherein we refused to interfere with the trial court’s decision regarding mitigating circumstances, noting:

Appellant next argues that the evidence supports the existence of at least two mitigating circumstances which the trial court failed to take into consideration. During the sentencing hearing, defense counsel produced a psychiatrist who testified that appellant knew right from wrong, but suffered from a sociopathic personality resulting in defective judgment. Other witnesses testified to appellant’s abnormal appearance and behavior on the evening of the shooting. Appellant contends that this testimony proves that he was under extreme mental or emotional disturbance at the time of the commission of the offense (section 921.-141(6)(b)) and could not appreciate the criminality of his conduct. (Section 921.-141(6)(f)). In response, the state argues that it lies within the province of the trier of fact to weigh the evidence presented. We agree. The jury and the judge heard the testimony, and apparently concluded that the testimony should be given little or no weight in their decisions. We find nothing in the record which compels a different result.

376 So.2d at 1153-54.

In Hargrave v. State, 366 So.2d 1 (Fla. 1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979), we considered a similar question and held:

Returning to appellant’s argument that the trial judge erred in failing to find the mitigating circumstances delineated above, we respond that the jury and the judge could have resolved the evidence in favor of appellant’s position, but neither was compelled to do so. We are not here dealing with a case where either the jury or the court considered matters it should not have considered or failed to consider matters it should have considered. Appellant simply disagrees with the force and effect given to the testimony of a psychologist and a psychiatrist at the sentencing hearing. . . . [T]he trial judge did not ignore or fail to consider the psychological evidence bearing on mitigation. Obviously, he and the jury were not persuaded that it provided a sound basis for establishment of the statutory mitigating circumstances.

Id. at 5-6 (emphasis added).

Clearly then, we are not warranted to disturb the trial court’s findings. There was nothing improper in the conclusions reached nor in the method by which they were reached. The decision was one within the domain of the judge and jury, and a reversal thereof is not justified simply because appellant draws a different conclusion from the testimony presented than did the jury.

The final point raised on appeal by appellant is that the evidence presented was insufficient to prove that he murdered Donna Strickland to hinder law enforcement. He objects to the trial court’s first finding of fact as to aggravating circumstances, which reads, in part:

The capital felony charged in Count II of the Indictment was committed to disrupt or hinder the lawful exercise of a governmental function or the enforcement of laws.... The Court specifically finds that the defendant than killed Donna Lynn Strickland to keep her from testifying against him for the murder of Bonnie Myrle Ward which she saw the defendant commit.

Appellant suggests several reasons why the above finding is improper, but, because of the court’s second finding we need not address the merits of appellant’s argument.

In his second finding of fact as to aggravating circumstances, the trial judge found that the murders for which appellant was convicted were committed in an especially heinous, atrocious, and cruel manner. The finding also noted that the manner in which appellant cut open the chest of Donna Strickland was particularly heinous, atrocious, and cruel and that “even were there no other aggravating circumstances in this case, this circumstance alone warrants the imposition of the death penalty.” Although we agree that appellant’s action in cutting open his younger victim’s chest was particularly loathsome and reprehensible, we are of the opinion that the more heinous, atrocious, and cruel aspect of the killings was the manner in which he strangled his victims. Appellant described how both women struggled, shook spasmodically and looked into his eyes as he choked them. Both strangulations were prime examples of the “conscienceless or pitiless crime which is unnecessarily torturous to the victim” which we have established as heinous, atrocious, and cruel. See State v. Dixon, at 9.

Discussion of the proper basis for finding the killings heinous, atrocious, and cruel aside, the important point is that the trial court found two aggravating circumstances. Thus even were we to rule that Donna’s murder was not committed to keep her from testifying against appellant, there would remain the aggravating circumstance of the heinous, atrocious, and cruel manner of the killings, and the imposition of the death penalty herein would still be justified. As we noted in Dixon:

When one or more of the aggravating circumstances is found, death is presumed to be the proper sentence unless it or they are overridden by one or more of the mitigating circumstances provided in Fla. Stat. § 921.141(7), F.S.A. [Now § 921.-141(6)]

Id. at 9. Because there are two aggravating circumstances, and no mitigating ones, the sentence of death would not have to be overturned even if we were to find the first aggravating circumstance improper. The second finding alone is sufficient basis for imposition of the death penalty. Consideration of the merits of the first finding would be for naught, and so we decline to do so.

In light of the foregoing, we find that the trial court’s decision was proper. Accordingly, the conviction and sentence imposed by the trial court are affirmed.

It is so ordered.

BOYD, OVERTON and McDONALD, JJ., concur.

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

SUNDBERG, C. J., dissents.

ALDERMAN, Justice,

concurring specialty-

Although I concur with the affirmance of the conviction and sentence and the rationale of the majority for this affirmance, I would not avoid the issue of whether the trial court properly found the aggravating circumstance that Smith murdered Donna Strickland to hinder law enforcement. The majority finds it unnecessary to resolve this question because there is at least one viable aggravating circumstance and no mitigating circumstances, and therefore under State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974), death is presumed to be the proper sentence.

In my view, the trial court properly found that Smith murdered Donna to hinder law enforcement. In its sentencing order, the trial court explains its justification for this finding:

1. The capital felony charged in Count II of the Indictment was committed to disrupt or hinder the lawful exercise of a governmental function or the enforcement of laws. The evidence shows that the, defendant coolly and calmly lured Bonnie Myrle Ward and her twelve year old daughter, Donna Lynn Strickland, to drive their automobile down a lonely dirt road through the use of a lie that the defendant had clothing cached in said location which he needed to retrieve. The defendant then caused Bonnie Myrle Ward to leave the car with him and was in the process of killing her through the means charged in the Indictment when Donna Lynn Strickland attempted to come to the aid of her mother. The Court specifically finds that the defendant then killed Donna Lynn Strickland to keep her from testifying against him for the murder of Bonnie Myrle Ward which she saw the defendant commit.

Accordingly, I would find that the trial court properly found two aggravating circumstances.

BOYD, J., concurs.


author: PER CURIAM.

text:
    Amos Lee KING, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 61406.
    Supreme Court of Florida.
    Dec. 2, 1981.
    Baya Harrison, III of Fuller, Johnson & Harrison, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

This is an appeal from a final order of the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County, dated November 13, 1981, denying King’s motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. King also requests a stay of his execution which is scheduled for December 8, 1981.

King was convicted of first-degree murder, involuntary sexual battery, robbery, arson, and attempted first-degree murder and was sentenced to death. This Court affirmed the conviction and death sentence last year. King v. State, 390 So.2d 315 (Fla.1980), cert. denied, 450 U.S. 989, 101 S.Ct. 1529, 67 L.Ed.2d 825 (1981).

Being unsuccessful in his application for clemency, King filed a 3.850 motion. King argued that he was denied effective assistance of counsel. On appeal he contends" that the trial judge erroneously found to the contrary and that the trial judge improperly prejudged his motion.

King’s trial counsel, Thomas Cole, a former assistant public defender, is deceased. He had been assisted at the trial by another assistant public defender, Anthony Rondoli-no. To support his 3.850 motion, King called as witnesses Rondolino, Patrick Do-herty, another attorney, and two acquaintances. Testimony showed that King’s trial attorney had been deeply engrossed in another case while preparing King’s case. Most of the preparation of King’s case occurred between the time of a mistrial of the other case and a subsequent trial of that case. Eleven days intervened between the end of that case and King’s trial.

Cole had obtained two continuances of King’s case. It is argued that Cole was ineffective because the continuances led to the consolidation for trial of King’s murder trial with all other charges arising from the events of the night of the murder. Rondolino testified that he considered Cole to be ineffective because of Cole’s statement that he was not prepared to proceed when the court allowed the consolidation. He also testified to Cole’s involvement in the other case and that Cole was “exhausted.”

The trial judge allowed a proffer of, but did not consider, the testimony of attorney Doherty, who concluded that Cole was ineffective. We have reviewed this testimony and have considered it. Doherty was critical of Cole’s investigation of the state’s witnesses and the quality of the physical evidence. He questions the timeliness of filing motions to suppress and the taking of depositions. One omission strongly urged is the failure to call an FBI agent as a witness to establish that no negroid hairs were found on or about the victim, her apparel, or bedclothes. Doherty did not agree that the preservation of the right to open and close the argument constituted a sufficient reason not to present this evidence because it simply left Cole with the “right to open and close with nothing to say.”

King testified that Cole only saw him twice. (Cole, in the original record, stated that he had seen King four or five times, but admitted to communication problems.) An investigator was also in contact with King. King also claims that Cole should have put on more statutory mitigating evidence and presented two character witnesses at the 3.850 hearing. One of these said that King was a good worker, and another said he was a good man.

The trial judge found that Cole provided effective assistance of counsel. Our review of the evidence fails to disclose otherwise. We fail to find any single act of omission or commission, or any series or combination thereof, that was a substantial and serious deficiency measurably below that of competent counsel. Even if Doherty’s testimony to the contrary is accepted, no act, or combination of acts, was substantial enough to demonstrate prejudice to the defendant to the extent that there is a likelihood that any substandard conduct affected the outcome of the court proceedings. See Knight v. State, 394 So.2d 997 (Fla.1981).

We are also satisfied that the trial judge decided the motion on the merits and did not prejudge it.

The denial of the 3.850 motion is affirmed, and the application for stay of execution is denied.

It is so ordered.

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

       We discussed the consolidation in our opinion on King’s first appeal and noted that in all likelihood evidence of all the events of that early morning would have been admissible without the consolidation.


text:
    THE FLORIDA BAR, Complainant, v. John N. SAMAHA, Respondent.
    No. 59834.
    Supreme Court of Florida.
    Dec. 3, 1981.
    Stanley A. Spring, Staff Counsel, Tallahassee, Scott K. Tozian and John A. Boggs, Bar Counsels, and Dale E. Krout, Jr., Asst. Staff Counsel, Tampa, and James R. Case, Chairman, Sixth Judicial Circuit Grievance Committee “C”, Clearwater Beach, for complainant.
    Michael L. Kinney, Tampa, for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against John N. Samaha, a member of The Florida Bar, is presently before us on complaint of The Florida Bar and report of referee. Pursuant to article XI, Rule 11.06(9)(b) of the Integration Rule of The Florida Bar, the referee’s report and record were duly filed with this Court. No petition for review pursuant to article XI, Rule 11.09(1) of the Integration Rule of The Florida Bar has been filed.

Having considered the pleadings and evidence, the referee found as follows:

That respondent represented Mr. Idris Evans in a workman’s compensation claim pursuant to Chapter 440 of the Florida Statutes. That as a result of his representation, the respondent was awarded a fee of $1,000 by order of Judge Jonathon L. Alpert, Judge of Industrial Claims, dated July 13, 1978. In addition to the $1,000 awarded to the respondent as his fee, respondent withheld additional $5,000 from Mr. Evans’ recovery from the workman’s compensation claim. Thereafter, Mr. Evans complained of this additional taking to Terry Sue Turner, a rehabilitation nurse. Subsequent thereto, Ms. Turner informed Judge Alpert of Mr. Evans complaint.
In October, 1978, Judge Alpert discussed the $5,000 fee with the respondent and informed the respondent that the fee was illegal and in contravention of Chapter 440.34 of The Florida Statutes. The respondent continued to maintain his right to the additional $5,000 fee until found guilty of receiving an unapproved fee in State v. John N. Samaha, Case No. CTC7901810 MASO in the Sixth Judicial Circuit in and for Pinellas County, Florida. As a result of that criminal matter, respondent was ordered to make restitution to Mr. Evans in the amount of $5,000, which restitution has now been made.

The referee recommends that respondent be found guilty of violating Disciplinary Rule 2-106(A) and 9-102(B)(4) of the Code of Professional Responsibility of The Florida Bar and Rule 11.02(3)(a) and (4) of Article XI of the Integration Rule of The Florida Bar and recommends that respondent receive a public reprimand.

Having carefully reviewed the record, we approve the findings and recommendations of the referee.

Accordingly, respondent, John N. Sam-aha, is hereby publicly reprimanded and the publication of this order and judgment shall constitute a public reprimand.

Costs in the amount of $325.25 are hereby taxed against respondent.

It is so ordered.

ADKINS, Acting Chief Justice, and BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.


text:
    Alvin Bernard FORD, Petitioner/Appellant, v. STATE of Florida, Respondent/Appellee.
    Nos. 61440, 61450.
    Supreme Court of Florida.
    Dec. 4, 1981.
    Laurin A. Wollan, Jr., Tallahassee and Raymond W. Russell, Fort Lauderdale, for petitioner/appellant.

      Jim Smith, Atty. Gen. and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for respondent/appellee.
   PER CURIAM.

We have for consideration an appeal from an order of the circuit court denying a motion for post-conviction relief, an original petition for writ of habeas corpus, and an application for stay of execution.

Petitioner Ford was convicted of murder in the first degree. A separate sentencing proceeding was held before the trial jury, which recommended that petitioner be sentenced to death. The trial judge, in accordance with the jury’s recommendation, sentenced him to death. The judgment and sentence were affirmed by this Court. Ford v. State, 374 So.2d 496 (Fla.1979).

The Supreme Court of the United States denied a petition for writ of certiorari. Ford v. Florida, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980).

Petitioner has also challenged his conviction by filing a habeas corpus proceeding in this Court, in which he joined 122 other persons under sentence of death, challenging this Court’s purported review of extra record material in capital appeals. Relief was denied in Brown v. Wainwright, 392 So.2d 1327 (Fla.1981), cert. denied, - U.S. -, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981).

Petitioner further challenged his conviction and sentence in a motion for post-conviction relief filed in the circuit court. Petitioner has appealed from the order denying this motion for post-conviction relief. The state has filed a motion to quash this appeal and a motion to affirm the trial judge.

Petitioner has also filed with this Court a petition for writ of habeas corpus arguing that counsel for him failed to present to this Court meritorious issues relating directly to the validity of the conviction and sentence in this case and thereby deprived him of a meaningful direct appeal in contravention of the sixth, eighth, and fourteenth amendments to the Constitution of the United States. He asks that we grant him a belated appellate review from the judgment and death sentence of the trial court.

Rule 3.850, Florida Rules of Criminal Procedure, authorizes the use of post-conviction relief procedures to challenge a once final judgment and sentence in limited instances, and for limited reasons. An error that may justify reversal on direct appeal will not necessarily support a collateral attack on the final judgment. Witt v. State, 387 So.2d 922 (Fla.1980), citing U. S. v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979).

Finality is an important element of the criminal justice system. This doctrine of finality should be abridged only when a more compelling objective appears, such as insuring fairness and uniformity in individual adjudication. Witt v. State.

Petitioner’s motion to vacate filed with the trial court alleged five grounds for relief. Only one of these — the claim of ineffective assistance of trial counsel — was properly raised. The other four issues pertaining to the admissibility of the confession, jury selection under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), jury instructions during the sentencing phase, and the standard of proof used in the sentencing phase, were all matters known at the conclusion of the trial which could have been, but were not, raised on direct appeal. Accordingly, collateral attack through a Florida Rules of Criminal Procedure 3.850 motion was properly determined by the trial court not to be an appropriate remedy pursuant to this Court’s decisions in Witt v. State and Hargrave v. State, 396 So.2d 1127 (Fla.1981). See also Wainwright v. Sikes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

The standard by which the effectiveness of counsel is to be measured is whether counsel was reasonably likely to render and rendered reasonably effective assistance. Meeks v. State, 382 So.2d 673 (Fla.1980). In Knight v. State, 394 So.2d 997 (Fla.1981), this Court set out a four-pronged test for determining whether there was reasonably effective assistance:

1. The specific act or omission upon which the claim is based must be detailed in the appropriate pleading.
2. The defendant has the burden to show it was a substantial and serious deficiency measurably below that of competent counsel.
3. The defendant has the burden to show that under the circumstances of his case, he was prejudiced to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings.
4. If the defendant shows this, the state may rebut by showing beyond a reasonable doubt that there was no prejudice in fact even if a constitutional violation was involved.

In his 3.850 motion to vacate petitioner presented four categories of “specific omissions” to support the claim of ineffectiveness of trial counsel: (i) failure to adequately present the motion to suppress petitioner’s statement made to law enforcement officers after he indicated he wanted to consult an attorney, (ii) failure to adequately prepare for trial, (iii) failure to adequately present issues during the guilt phase of the trial, and (iv) failure to adequately present or preserve issues during the sentencing phase of the trial. After a careful review of the record of proceedings on the motion to vacate, particularly the testimony of the lawyer witnesses called by petitioner, we conclude that either the alleged deficiencies have not been demonstrated to be substantial and serious, measurably below conduct expected of competent counsel or that petitioner was not prejudiced to the-extent that there is a likelihood that the deficient conduct affected the outcome of petitioner’s trial. For example, insofar as the petitioner’s statement is concerned, it is far from clear that the statement was inadmissible under the state of the law existing at the time of trial. Witt v. State, Meeks v. State. Furthermore, petitioner’s statement only admitted his presence and participation in the robbery. It denied participation in the shooting. There was abundant evidence apart from the confession, some by eye witnesses, to place him at the scene as a participant. Even disregarding petitioner’s confession there was overwhelming evidence of guilt. To establish prejudice, there must be a serious doubt of the defendant’s guilt. Canary v. Bland, 583 F.2d 887, 894 (6th Cir. 1978). To the same extent the purported deficiencies at the sentencing phase can be readily attributed to tactics of counsel under the circumstances of the case. In any event, the overwhelming nature of the aggravating circumstances precludes any likelihood that counsel’s alleged omissions could have been prejudicial to petitioner.

Accordingly, applying the standard of Meeks and Knight we agree with the finding of the trial court that “the assistance of his counsel was ... as effective as it could have been expected to be done under these circumstances.”

Petitioner raises the following grounds in asserting ineffective appellate counsel in his petition for writ of habeas corpus: (i) failure to raise the issue of denial of assistance of counsel during interrogation, (ii) failure to raise denial of petitioner’s right to a fair and impartial jury under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), (iii) failure to attack the adequacy of the trial court’s instruction to the jury at the sentencing phase, (iv) failure to challenge findings of aggravating and mitigating circumstances, and (v) failure to appeal non-disclosure of a witness. Applying the four-pronged test of Knight v. State to each of these claims, we find that petitioner has failed to meet his burden of showing a substantial and serious deficiency, measurably below that of competent counsel. Even if we assumed this aspect of the Knight test were met, there is not a sufficient showing that any of these grounds would likely have affected the outcome of the appeal.

The order of the trial court denying the motion to vacate is affirmed, the petition for writ of habeas corpus is denied, and the application for stay of execution is denied. No petition for rehearing will be entertained.

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


author: BOYD, Justice. SUNDBERG, Chief Justice,

text:
    Ronald MOTCHKAVITZ, et ux., Petitioners, v. L. C. BOGGS INDUSTRIES, INC., et al., Respondents. ZUCKERMAN-VERNON CORPORATION, etc., Petitioners, v. Ronald MOTCHKAVITZ, et ux., L. C. Boggs Industries, Inc., et al., Respondents.
    Nos. 59421, 59422.
    Supreme Court of Florida.
    Dec. 10, 1981.

      Beckham, McAliley & Proenza, and Joel D. Eaton of Podhurst, Orseek & Parks, Miami, for petitioners, Ronald Motchkavitz and Joan Motchkavitz.
    Richard A. Herman of Wicker, Smith, Blomqvist, Davant, Tutan, O’Hara & McCoy, Miami, for petitioners, Zuckerman-Vernon Corp.
    Robert P. Kelly of Pyszka & Kessler, Fort Lauderdale, for respondent, L. C. Boggs Industries, Inc.
   BOYD, Justice.

This cause is before the Court for review of a decision of the district court of appeal, Motchkavitz v. L. C. Boggs Industries, Inc., 384 So.2d 259 (Fla. 4th DCA 1980), which the court certified as having passed upon a question of great public importance. The court also certified that its decision is in conflict with C & S Crane Service, Inc. v. Negron, 287 So.2d 108 (Fla.3d DCA 1973), cert. denied, 296 So.2d 49 (Fla.1974). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

In 1972, Zuckerman-Vernon Corporation was constructing an apartment project, not for another but for itself for subsequent sale by it in the form of condominium apartments.

Zuckerman-Vernon engaged May Plumbing Company to perform the plumbing work. May Plumbing contracted with L. C. Boggs Industries, Inc., for the performance of part of the work, the installation of catch basins in the project’s drainage system.

Ronald Motchkavitz was an employee of May Plumbing Company. He was injured in the course of his employment and received worker’s compensation benefits from his employer’s insurance carrier. He then brought the present action alleging that his injuries were caused by the negligence of Theodore Faber, an employee of Boggs Industries. He sued Zuckerman-Vernon, Boggs Industries, and Faber.

Boggs Industries moved for summary judgment on the ground that it was immune from suit by virtue of the “exclusive remedy” provisions of the worker’s compensation law. The trial court granted summary judgment and Motchkavitz appealed. Zuckerman-Vernon also appealed the judgment in favor of its co-defendant, based upon its adverse effect on Zuckerman-Ver-non’s right to contribution in case a judgment were eventually rendered against Zuckerman-Vernon.

The district court of appeal affirmed, holding that sections 440.10 and 440.11, Florida Statutes (1971), precluded an action to recover for injuries sustained on the job by the employee of a contractor against his employer’s subcontractor. The district court framed the certified question as follows:

Can the employee of a “contractor,” having received workmen’s compensation benefits from his employer, sue his employer’s subcontractor for damages arising out of the negligence of the latter’s employee?

Section 440.10(1), Florida Statutes (1971), requires every employer brought within the provisions of chapter 440 to secure the payment of compensation to its employees as provided for by the statute. Where a contractor sublets part of his work to a subcontractor, the subcontractor’s employees are deemed employees of the contractor for purposes of the statutorily required coverage and liability. “[T]he contractor shall be liable for and shall secure the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.” § 440.10(1), Fla.Stat. (1971).

Section 440.11(1) provides that the liability of an employer as prescribed in section 440.10(1) “shall be exclusive and in place of all other liability of such employer to any third party tortfeasor and to the employee” and to any others damaged by the injury or death. The statute also provides that when an employer fails to secure payment of compensation as required, the injured employee or his representative may elect to claim statutory compensation or to maintain an action at law or in admiralty for damages on account of the injury or death.

Section 440.10 establishes the concept of “statutory employer” for contractors who sublet part of their work to others. Section 440.11 provides that the liability established in section 440.10 is “exclusive.” The effect of section 440.10 is that where a subcontractor performing part of the work of a contractor fails to secure payment of compensation, the contractor is liable for same. If both subcontractor and contractor fail to secure coverage, then the contractor has an employer’s liability to the subcontractor’s injured employee for purposes of an action for statutory benefits or damages at law or in admiralty. Thus even when a subcontractor agrees to secure coverage for its employees, a prudent contractor will prepare for or insure against its contingent liability as “statutory employer” in case the subcontractor fails to do so.

The exclusiveness of liability provided for by section 440.11 extends to an employer’s “liability” as defined in section 440.10. Thus a contractor who sublets part of its work to a subcontractor, being liable to secure coverage for employees of its subcontractor, is also immune from suit by such employees when such coverage has been secured. It is the liability to secure coverage for such employees in the event the subcontractor does not do so that immunizes a contractor from suit by such employees. Jones v. Florida Power Corp., 72 So.2d 285 (Fla.1954).

It was long ago held that the immunity of a contractor from suit by an employee of its subcontractor is reciprocal: a subcontractor is also immune from suit for damages by an employee of the contractor. In Younger v. Giller Contracting Co., 143 Fla. 335, 196 So. 690 (1940), it was held that an employee of a contractor could not maintain an action against a subcontractor for injuries caused by the negligence of the subcontractor’s employees because statutory benefits were the exclusive remedy. The Court reasoned that the statute created a “common employer” concept. It was unfair, the Court said, to hold that where two men were working shoulder to shoulder in a common enterprise, one of them, if injured, would have no remedy but the statutory benefits while the other might also have a right of action against some third party tortfeasor.

The question in Younger was whether the subcontractor whose employee caused the injury was a third party or “person other than the employer” as statutorily defined. The Court said:

The intention of the legislature . . . was to abrogate the common law to the extent of making all of the employees engaged in a common enterprise statutory fellow-servants. They were never to. be considered inter se third parties as to each other or to the immediate contractual employers. All workers engaged in such common enterprise were brought within the protection of the Workmen’s Compensation Act where they might obtain equal benefits as provided by the act without the necessity of resorting to a common-law action to accomplish this re-suit. We cannot garner any other meaning from the statute except that the employees of the sub-contractor and the general contractor were to be on an equal footing.

Id. at 341, 196 So. at 693.

The same rule has been applied to hold that an employee of a subcontractor, having received benefits as provided in the act, may not proceed against another subcontractor for negligence when both subcontractors are performing work on the same project for the same contractor. Miami Roofing & Sheet Metal Co. v. Kindt, 48 So.2d 840 (Fla.1950).

Petitioner contends that the statement in Jones v. Florida Power Corp., that immunity from suit is contingent upon and commensurate with liability to secure coverage, has undercut the rule of Younger and Miami Roofing. In neither of those cases could it be said, petitioner argues, that immunity was commensurate with liability since the immunized subcontractors were not liable for securing the coverage that provided the benefits for the injured workers.

We find this argument to be without merit. A subcontractor is statutorily recognized as a common employer along with the contractor even though it is not liable for securing coverage for the employees of the contractor and the other subcontractors. Carter v. Sims Crane Service, Inc., 198 So.2d 25 (Fla.1967). In Carter, it was held that an employee of a subcontractor could not proceed against another subcontractor for causing him injury where both subcontractors worked on the same project for the same contractor. Adhering to the rationale that “it is the liability for compensation under the act, and compliance therewith, which gives immunity” both to contractors and subcontractors, the court nevertheless reasoned:

Immunity of a subcontractor in this situation is in fact based upon his sharing the burdens of the act, either directly by the assumption of coverage for some of the employees on the job or indirectly because of the effect of compensation liabilities upon the terms of his subcontract and relations with the general contractor.

Id. at 27—28. Jones did not overrule Younger.

Motchkavitz also argues that his case is distinguishable from Younger in that he, unlike the claimant there, was employed by an “independent” rather than a “general” contractor. He cites C & S Crane Service, Inc. v. Negron, 287 So.2d 108 (Fla.3d DCA 1973), cert. denied, 296 So.2d 49 (Fla.1974), in support of this argument. In light of the above-discussed principles, it is clear that C & S Crane Service, Inc. v. Negron was wrongly decided. The statute does not make the distinction argued for, but speaks only of “contractors.” A contractor is one under a contractual obligation to perform some work for another. State ex rel. Auchter Co. v. Lukie, 145 So.2d 239 (Fla. 1st DCA), cert. denied, 148 So.2d 278 (Fla.1962). We therefore reject petitioner’s contention.

Petitioner also contends that chapter 74-197, Laws of Florida, overruled the Younger-Carter rationale of reciprocal immunity in the statutory common employment situation. This amendment to section 440.10 disclaimed the intent to make subcontractors liable for securing coverage for each others’ employees, and correspondingly abrogated their immunity from suit by each others’ employees. Thus the amendment did not explictly deal with the situation presented in Younger and in the present case, although it seems to have overruled Miami Roofing. Whatever effect the amendment may have had on the Younger doctrine, however, it does not apply to this case, since all of the operative facts transpired before the enactment of chapter 74-197. Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239 (Fla.1977).

Petitioner’s employer, May Plumbing, was a contractor under an obligation to perform work for Zuckerman-Vernon Corporation. May Plumbing sublet part of the work to L. C. Boggs Industries. May Plumbing was liable for compensation benefits to, and immune from suit by, injured employees of its subcontractor L. C. Boggs. Therefore Boggs was also immune from suit by Motchkavitz, an employee of the primary contractor. Accordingly, we answer the certified question in the negative and approve the decision of the district court of appeal.

It is so ordered.

OVERTON, ALDERMAN and MCDONALD, JJ., concur.

SUNDBERG, C.J., dissents with an opinion, with which ADKINS, J., concurs.

SUNDBERG, Chief Justice,

dissenting.

Since the result reached by the majority, in my mind, is neither compelled by sections 440.10 — .11, Florida Statutes (1971), nor supported in logic under the circumstances of a case such as this, I would recede from Younger v. Giller Contracting Co., 143 Fla. 335, 196 So. 690 (1940), and Miami Roofing & Sheet Metal Co. v. Kindt, 48 So.2d 840 (Fla.1950). Professor Larson, the preeminent authority on the law of Workmen’s Compensation, has been particularly critical of Florida’s “common-employment” metaphor as being out of the mainstream of the law on this subject. I agree with Professor Larson. Hence, I must respectfully dissent.

ADKINS, J., concurs.

      . 440.10 Liability for compensation.—
      (1) Every employer coming within the provisions of this chapter, including any brought within the chapter by waiver of exclusion or of exemption, shall be liable for and shall secure the payment to his employees of the compensation payable under §§ 440.13, 440.15 and 440.-16. In case a contractor sublets any part or parts of his contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for and shall secure the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.
      (2) Compensation shall be payable irrespective of fault as a cause for the injury, except as provided in § 440.09(3).

      . 440.11 Exclusiveness of liability.—
      (1) The liability of an employer prescribed in § 440.10 shall be exclusive and in place of all other liability of such employer to any third party tortfeasor and to the employee, his dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee or his legal representative, in case death results from the injury, may elect to claim compensation under this chapter or to maintain an action at law or in admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by negligence of a fellow servant, that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee.
      (2) An employer’s workmen’s compensation carrier, service agent, or safety consultant shall not be liable as a third party tortfeasor for assisting the employer in carrying out the employer’s rights and responsibilities under this chapter by furnishing any safety inspection, safety consultive service, or other safety service incidental to the workmen’s compensation or employers’ liability coverage or to the workmen’s compensation or employer’s liability servicing contract. The exclusion from liability under this subsection shall not apply in any case in which injury or death is proximately caused by the willful and unprovoked physical aggression, or by the negligent operation of a motor vehicle, by employees, officers, or directors of the employer’s workmen’s compensation carrier, service agent, or safety consultant.

       2A Larson, The Law of Workmen’s Compensation, § 72.33 (1976).


text:
    FLORIDA TELEPHONE CORP., Appellant, v. Joseph P. CRESSE, etc., et al., Appellees.
    No. 60153.
    Supreme Court of Florida.
    Dec. 10, 1981.
    Jerry M. Johns, Gen. Counsel, Altamonte Springs, for appellant.
    Arthur C. Canaday, Gen. Counsel and Virginia Daire Reber, Associate Gen. Counsel, Tallahassee, for appellees.
    Jack Shreve, Public Counsel and Michael Wilson, Deputy Public Counsel, Tallahassee, for the Citizens of the State of Florida, intervenors.
   PER CURIAM.

Affirmed. United Telephone Co. v. Mann, 403 So.2d 1077 (Fla.1981).

It is so ordered.

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