author: PER CURIAM. BOYD, Justice,

text:
    Rodney Wayne MALLOY, Appellant, v. STATE of Florida, Appellee.
    No. 49580.
    Supreme Court of Florida.
    Dec. 20, 1979.

      Jack 0. Johnson, Public Defender, and Paul J. Martin, Thomas A. Pobjecky and James R. Wulchak, Asst. Public Defenders, Bartow, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This is a direct appeal from the imposition of a death sentence. Appellant was convicted of two counts of murder in the first degree, two counts of kidnapping, and one count of robbery. The trial judge, after receiving a jury recommendation for life sentences for the murder convictions, imposed a sentence of death for each of the murders and consecutive life sentences for the other crimes. We have jurisdiction. For the reasons expressed, we affirm the convictions and reduce the sentence to life imprisonment in accordance with the recommendation of the jury.

The record in this case reveals that on the night of November 8, 1975, the appellant was in attendance at a party at the Surrett residence where appellant rented a room which he shared with the Surretts’ minor children. Also present at the party were Ricky Robinson and Ricky Houston, both of whom were charged along with the appellant for the murder in the first degree of Leo Eggering and Ronald Cole. The appellant and his codefendants consumed a combination of alcohol and drugs that evening, appellant acknowledging that he had ingested “windowpane acid” (LSD), Psilocy-bin (mushroom tea), and alcohol.

Houston and Robinson, after negotiating pleas, testified for the prosecution. They related that they and the appellant, accompanied by a friend, left the Surrett party about midnight and drove to a lounge in Lakeland. When they arrived at the parking lot of the lounge, the group noticed that two persons were arguing and the appellant assertedly told them to “shut up.” When they did not, the appellant allegedly got out of the car and began to pull out a rifle which was on the front seat. Subsequent to this incident, they dropped off their friend and proceeded to a restaurant to eat breakfast. While there, the three formulated a plan to steal some stereo equipment from the victims, Leo Eggering and Ronald Cole.

The appellant and his companions went to the apartment of the victims, arriving there at approximately 2:30 a. m. They gained entrance through a subterfuge, and Houston at rifle point forced the victims to stand in the bathtub. The three men took turns holding the rifle, which belonged to Houston, on the victims while the others carried various items out to the car. After the group had taken what they wanted, the appellant placed heavy tape over the eyes and mouths of the victims and then covered their heads with pillowcases. The two victims were led to the car and put in the back seat. With Houston driving, the trio transported their victims to the Piper aircraft plant. Houston and Robinson testified that they tried for twenty minutes to dissuade the appellant from murdering the victims. They testified that the appellant stated that one of the victims knew him and had to be killed and said: “Dead men tell no tales.” According to the testimony of Houston and Robinson, the appellant led the victims away from the car and shot each victim one time in the head. At approximately 5:30 a. m. the appellant, accompanied by Robinson and Houston, returned to the Surrett residence and carried the victims' stereo equipment into his room.

Appellant testified in his own behalf. His version of the events differed from that of his accomplices in that he claimed that he did not shoot the victims. According to the appellant, Robinson led the victims away from the car and while he and Houston were discussing the stolen goods two shots were heard. The appellant stated that Robinson then reappeared and admitted shooting the victims.

Approximately two weeks after the incident a deputy sheriff was advised that merchandise from a burglary of a market was in the Surrett residence. Deputies went to the residence, knocked on the door, and were admitted into the living room. In plain view they saw many cartons of cigarettes and large quantities of beer. Large amounts of cigarettes and beer had been reported stolen from the market. They arrested the appellant, Houston, and Robinson, and charged each with the burglary of the market. After calling for additional officers, they asked Mrs. Surrett for permission to search the house, and she signed a consent form. In the search which followed, they found the stereo and other articles which belonged to the victims Eggering and Cole in a bedroom shared jointly by appellant and Mrs. Surrett’s minor sons.

Prior to trial Houston and Robinson negotiated with the State and were allowed to plead nolo contendere to two counts of the lesser charge of accessory after the fact to first degree murder, two kidnapping charges, robbery, burglary, and grand larceny. They received five- to ten-year concurrent sentences on all offenses except the burglary and larceny offenses for which they received five-year concurrent sentences.

Part I

The appellant asserts that his convictions should be reversed because (1) it was error for the trial court to deny appellant’s motion to suppress the stereo equipment and other articles belonging to the victims which were seized during a search of his shared bedroom in the Surrett house; (2) it was error to allow the State to call the father of one of the victims as an identification witness; (3) it was error to allow testimony regarding the incident involving the rifle at the lounge; and (4) it was error for the trial court to instruct the jury on the penalty for second degree murder.

In answer to the appellant’s assertion that the search was illegal and evidence discovered during the search should have been excluded, it is our view that the motion to suppress was properly denied. The police had obtained the consent of the owner of the home before making their search. The consent was found by the trial judge to be voluntary and proper under the circumstances of this case, and we agree.

The appellant, in his second contention, claims that the admission of the identification testimony by the father of one of the victims was error. We have previously held, however, that even the admission of testimony from a member of the victim’s family is not fundamental error. Rankin v. State, 143 So.2d 193, 196-97 (Fla. 1962). The testimony of the father was admitted without objection, so that on this record the admissibility of the testimony is not a proper issue for our consideration. State v. Barber, 301 So.2d 7, 9 (Fla. 1974); State v. Jones, 204 So.2d 515, 519 (Fla. 1967).

Appellant’s third contention is without merit. In our view, the testimony regarding the incident at the lounge was properly admitted. It was one incident in a chain of chronological events which began with the termination of the party at the Surrett residence at approximately 12:30 a. m. and concluded with the delivery of the victims’ property to the appellant’s bedroom at 5:30 a. m. back at the Surrett premises. In addition, the circumstances of the lounge incident do not establish all the elements of a crime and, consequently, the question of the admissibility of prior criminal acts is not present.

Finally, the trial court’s inclusion in its instructions of the penalty for second degree murder was proper. See Dorminey v. State, 314 So.2d 134 (Fla. 1975); Fla.R. Crim.P. 3.390(a). We find no error in the instructions.

We conclude that the convictions of the appellant of two counts of murder in the first degree, two counts of kidnapping, and one count of robbery are fully supported by the evidence, and we affirm.

Part II

The sentence review function of this Court in the instant case is particularly difficult. The jury recommended that the appellant receive life sentences. The trial judge overruled the jury’s recommendation and imposed two sentences of death.

Much of the testimony in this case is without conflict, and it established without question that each of the three participating individuals was guilty of two execution-type murders, which ordinarily should result in the imposition of the death penalty. We find, however, that the recommendation of life imprisonment made by the jury has a reasonable basis under the circumstances of this cause.

We have repeatedly stated that in reviewing the propriety of a death sentence, this Court must weigh heavily the advisory opinion of life imprisonment by the sentencing jury. The facts justifying the death sentence must be clear and convincing in order to overrule the jury’s recommendation. McCaskill v. State, 344 So.2d 1276, 1280 (Fla. 1977); Dobbert v. State, 328 So.2d 433 (Fla. 1976), aff’d, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); Tedder v. State, 322 So.2d 908, 910 (Fla. 1975). Therefore, we must examine this record to determine whether there are clear and convincing facts that warranted the imposition of the death penalty, and, in doing so, we must determine if there was a reasonable basis for the jury’s recommendation.

We find that the jury’s action was reasonable because of the conflict in the testimony as to who was actually the trig-german and because of the plea bargains between the accomplices and the State.

From the evidence presented, the jury could have believed the appellant’s story that he was not the triggerman and still have convicted him of first degree murder. § 777.011, Fla. St at. (1977). The jury also could have based its life sentence recommendation on the fact that Robinson, who appellant claimed fired the shots, and Houston, who owned the gun, were each allowed to plead guilty to a lesser charge and receive only a five- to ten-year sentence. All three participants were parties to this execution slaying. The issue of the identity of the triggerman may not have been totally controlling. Under the circumstances of this case it was reasonable to conclude that all participants were equally culpable since there was no reason to bind, gag, and blindfold the victims and take them miles away to an unrelated building unless there was an agreement between the three to murder the victims. It is also reasonable to conclude that the jury may have reached its recommendation because of the relatively equal complicity of the other participants and the plea bargains made with them by the state.

Because of the jury’s recommendation of a life sentence and the fact that there is a reasonable basis for its recommendation, we must agree that to impose the death sentence on the appellant would not be consistent with other sentences imposed in similar circumstances in accordance with the principles laid down by the United States Supreme Court in Proffitt v. Florida, 428 U.S. 242, 258-60, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). Our ruling does not mean that the imposition of the death sentence is always dependent upon the sentences of accomplices. It is a factor, however, that may be considered along with evidence of complicity. Each case will depend on its own facts and circumstances. See Witt v. State, 342 So.2d 497 (Fla. 1977).

For the foregoing reasons, we affirm the appellant’s convictions but reverse the sentences of death and remand with directions to enter an order sentencing the appellant to two life imprisonments, each without the possibility of parole for twenty-five years.

It is so ordered.

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

BOYD, J., concurring in part and dissenting in part with an opinion, with which ADKINS, J., concurs.

BOYD, Justice,

concurring in part and dissenting in part.

I concur in the affirmance of the convictions but dissent from the reduction of sentence.

The appellant was convicted of two counts of murder in the first degree. The jury recommended life imprisonment. The majority orders the death sentence imposed by the trial court reduced to life on the ground that the lenient treatment of appellant’s co-perpetrators and conflicting testimony as to who actually shot the victims were reasonable bases for the life imprisonment recommendation. I disagree.

The two victims were held at rifle point, their eyes and mouths taped and their heads covered, as they were transported to the place of their execution. The murders were committed in the course of a robbery. The victims were killed to assure that they would be unavailable as witnesses against the appellant and his accomplices. The majority recognizes that under our past death sentence decisions, the extreme penalty is appropriate to the circumstances of this appellant’s crime. It is because of the lenient treatment of the accomplices and appellant’s uncorroborated statement at trial that death is held to be inappropriate. Without saying whether either of these factors standing alone would be sufficient, the Court holds that taken together they constitute a reasonable basis for the jury recommendation.

I.

In Slater v. State, 316 So.2d 539 (Fla. 1975), the Court had for review a sentence of death imposed following a jury recommendation of life. We concluded that the jury recommendation was presumably based on the fact that the appellant’s co-participant, who was the actual “trigger-man,” had pled nolo to a charge of first-degree murder and received a life sentence. Our decision was based on the fact that it was reasonable for the jury to conclude that Slater was less culpable than the other offender, whose life state authorities had arranged to spare.

In Messer v. State, 330 So.2d 137 (Fla. 1975), the jury recommended death but we vacated the sentence, partly on the ground that the appellant was entitled to have the jury informed that an equally culpable accomplice had negotiated a plea of guilty to second-degree murder and received a thirty-year sentence.

In Witt v. State, 342 So.2d 497 (Fla.1977), we affirmed the death sentence imposed following a jury recommendation of death. We found it necessary to explain, however, why death was the appropriate penalty in view of the fact that an accomplice had pled guilty on condition of receiving life imprisonment. Such “discretionary inconsistency,” we said, cannot be ignored. Id. at 500. We then specifically held that the facts of the case supported death for the appellant and life for the accomplice, who had acted under the appellant’s domination.

In Barclay v. State, 343 So.2d 1266 (Fla. 1977), two jointly tried capital offenders were sentenced to death after the jury recommended life for one and death for the other. This Court, in upholding the death sentences, relied on the principle that equally culpable co-perpetrators should not receive disparate treatment. I dissent from affirming the death sentence of one of the appellants, imposed contrary to the jury recommendation, because my view of the evidence was that one of the offenders was more culpable than the other.

In Smith v. State, 365 So.2d 704 (Fla. 1978), the appellant’s accomplice pled nolo, testified at the appellant’s trial, and was subsequently sentenced to life imprisonment. The appellant argued that his death sentence, which the jury recommended, was improper. This Court upheld the death sentence. Slater v. State was distinguishable, we said, because there the co-perpetrator who received life was the actual wielder of the murder weapon. Smith’s culpability, on the other hand, was much greater than that of his accomplice in that Smith was the dominant force in the commission of the murder. Thus disparity of treatment was held to be justified.

In Salvatore v. State, 366 So.2d 745 (Fla. 1978), the appellant argued that under the Slater rule the sentence imposed on him was improper because his accomplice received a ten-year sentence on a guilty plea to second-degree murder. The majority of this Court distinguished Slater, concluding from the evidence that the appellant was more culpable than his accomplice.

Finally, in Jackson v. State, 366 So.2d 752 (Fla.1978), we were once again faced with the contention, based on Slater, that a death sentence was improper because of the life sentence given to his accomplice pursuant to a guilty plea. The Court pointed out that the appellant had been the dominating factor and that with regard to the accomplice this served as a mitigating circumstance under section 921.141(6)(e), Florida Statutes (1975). Therefore, the disparity was justified.

II.

This Court’s review function under the capital felony sentencing law is designed to assure consistency in the imposition of the extreme penalty. The Court performs this function by comparing the facts and circumstances of each case with those of other cases in which the death penalty is imposed. This function is crucial to the law’s constitutionality. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); State v. Dixon, 283 So.2d 1 (Fla.1973). It should not be our function to compare the sentence imposed on a convicted capital offender with the treatment of his co-perpetrators or accomplices. This latter kind of comparison, emanating from the Slater case, should not be considered a proper consideration for the jury or for this Court, because it contributes not to consistency but to inconsistency. The capital offender who commits his crime in concert with others has a better chance for a life sentence, based on the leniency afforded his accomplices, than does the offender who acts alone.

In the present case, the appellant’s accomplices testified against him at trial. The appellant’s crimes would have been difficult to prove without the cooperation of the other participants, or so must the prosecutors have determined. The fact that the prosecutors arranged for them a very good deal has nothing to do with the propriety of the death sentence, which must be determined in light of previous death penalty decisions of this Court.

In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the petitioner contended that the existence of pros-ecutorial and jury discretion rendered the new Georgia death penalty scheme violative of the principles of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), because they allow for arbitrariness and inconsistency. The Court responded that the existence of prosecutorial discretion does not violate Furman.

Prosecutorial discretion to plea bargain is an accepted feature of our criminal justice system. We cannot review every prosecu-torial decision of this kind, not even in death penalty cases. Even when the prosecutor does not need the testimony of a co-participant, there is discretion to accept a plea of guilty to a lesser offense or in exchange for an agreement for a certain sentence. Sometimes two offenders are equally culpable but one is punished more lightly than the other on no other basis than his willingness to plead guilty and permit a saving of limited prosecutorial resources. We must assume that in general our prosecuting authorities will seek the more severe penalties for the more culpable offenders, and that they will plea bargain, for testimony or otherwise, with participants who appear to be less culpable.

III.

In the present case the prosecutor apparently bargained for the accomplices’ testimony. The need of the prosecutor to do so justified the disparate treatment. The leniency of the treatment of the accomplices, or the fact that the prosecutor may have made a bad bargain on behalf of the state, does not call into question the propriety of the death sentence in the circumstances of this case. This leniency is part of the basis the majority perceives as justifying the jury recommendation. It is not a reasonable basis and thus is no ground to hold that the court erred, in light of the aggravating circumstances and lack of mitigating circumstances, in overruling the recommendation. Tedder v. State, 322 So.2d 908 (Fla. 1975). Where the less severely punished co-perpetrator is more culpable, or where the capital appellant is substantially dominated by another, the law is different.

The majority bases its decision in part on the fact that the jury could have believed that the appellant did not actually fire the fatal shots. Such fact, supported by a conflict between the trial testimony of appellant and that of one of his co-participants, is held to be a reasonable basis for the jury recommendation.

In Slater v. State, 316 So.2d 539 (Fla. 1975), discussed above, the life sentence of the trigger man was among the “circumstances surrounding this offense” justifying the jury recommendation of life imprisonment. Id. at 542. There, the record clearly reflected that the appellant “was an accomplice and did not have the murder weapon in his hand.” Id. at 542. The crime was committed in the course of a motel robbery and there was testimony by a police officer that the trigger man’s confession described the shooting itself as accidental.

In the present case, all three men were equal participants in the robbery, kidnapping and murder. The majority recognizes that all three were principals in the commission of the capital felonies. They entered their victims’ home, robbed them, took them away at gunpoint, and intentionally murdered them.

Bound by the decisions of this Court upholding sentences of death where the circumstances of the crime and the character of the offender were similar to what we are faced with in this case, I would affirm the sentence of death.

ADKINS, J., concurs.

      . Art. V, § 3(b)(1), Fla.Const.

      . “Under Florida’s capital-sentencing procedures, in sum, trial judges are given specific and detailed guidance to assist them in deciding whether to impose a death penalty or imprisonment for life. Moreover, their decisions are reviewed to ensure that they are consistent with other sentences imposed in similar circumstances.” Proffitt v. Florida, 428 U.S. 242, 253, 96 S.Ct. 2960, 2967, 49 L.Ed.2d 913 (1976) (plurality opinion). “The Supreme Court of Florida reviews each death sentence to ensure that similar results are reached in similar cases.” Id. at 258, 96 S.Ct. at 2969 (Plurality opinion) (footnote omitted).

      . The existence of these discretionary stages is not determinative of the issues before us. At each of these stages an actor in the criminal justice system makes a decision which may remove a defendant from consideration as a candidate for the death penalty. Furman, in contrast, dealt with the decision to impose the death sentence on a specific individual who had been convicted of a capital offense. Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution. Furman held only that, in order to minimize the risk that the death penalty would be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided by standards so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant.

        Gregg v. Georgia, 428 U.S. 153, 199, 96 S.Ct. 2909, 2937, 49 L.Ed.2d 859 (1976) (plurality opinion) (footnote omitted).
      Petitioner’s argument that prosecutors behave in a standardless fashion in deciding which cases to try as capital felonies is unsupported by any facts. Petitioner simply asserts that since prosecutors have the power not to charge capital felonies they will exercise that power in a standardless fashion. This is untenable. Absent facts to the contrary, it cannot be assumed that prosecutors will be motivated in their charging decision by factors other than the strength of their case and the likelihood that a jury would impose the death penalty if it convicts. Unless prosecutors are incompetent in their judgments the standards by which they decide whether to charge a capital felony will be the same as those by which the jury will decide the questions of guilt and sentence. Thus defendants will escape the death penalty through prosecutorial charging decisions only because the offense is not sufficiently serious; or because the proof is insufficiently strong. This does not cause the system to be standardless any more than the jury’s decision to impose life imprisonment on a defendant whose crime is deemed insufficiently serious or its decision to acquit someone who is probably guilty but whose guilt is not established beyond a reasonable doubt. Thus the prosecutor’s charging decisions are unlikely to have removed from the sample of cases considered by the Georgia Supreme Court any which are truly “similar.” If the cases really were “similar” in relevant respects, it is unlikely that prosecutors would fail to prosecute them as capital cases; and I am unwilling to assume the contrary.
      Petitioner’s argument that there is an unconstitutional amount of discretion in the system which separates those suspects who receive the death penalty from those who receive life imprisonment a lesser penalty or are acquitted or never charged seems to be in final analysis an indictment of our entire system of justice. Petitioner has argued in effect that no matter how effective the death penalty may be as a punishment, government, created and run as it must be by humans, is inevitably incompetent to administer it. This cannot be accepted as a proposition of constitutional law.
      Id. at 225-26, 96 S.Ct. at 2949. (Opinion of White, J., joined by Burger, C. J., and Rehnquist, J.)


source: Caselaw Access Project

author: OVERTON, Justice.

license: Public Domain

text:
    Elaine P. CANAKARIS, Petitioner, v. John M. CANAKARIS, Respondent.
    No. 54124.
    Supreme Court of Florida.
    Jan. 31, 1980.
    As Clarified On Denial of Rehearing March 27, 1980.

      William M. Barr, of Raymond, Wilson, Conway, Barr & Burrows, Daytona Beach, for petitioner.
    Isham W. Adams, of Adams & Briggs, Daytona Beach, for respondent.
   On Clarification

OVERTON, Justice.

This is a petition for writ of certiorari to review a decision of the First District Court of Appeal reported at 356 So.2d 858 (Fla. 1st DCA 1978). The district court reversed the trial court’s award to the wife of the husband’s undivided one-half interest in their marital home as lump sum alimony, the award of permanent periodic alimony, and attorney’s fees. We find conflict with Yandell v. Yandell, 39 So.2d 554 (Fla.1949); Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974); and Calligarich v. Calligarich, 256 So.2d 60 (Fla. 4th DCA 1971). We have jurisdiction. We reverse the district court and reinstate the judgment of the trial court.

This dissolution proceeding terminated a thirty-three-year marriage, the parties having married when the wife was seventeen and the husband twenty-one. The wife assisted the husband through college and worked in his first medical office and in the hospital started by her husband. This proceeding commenced in 1963 upon a complaint filed by the wife for separate maintenance on grounds of adultery and extreme cruelty. A temporary support order was entered in 1963, with which the parties complied until the final judgment for dissolution was entered in December, 1976. The issues in this cause concern the disposition of wealth accumulated during the marriage and the determination of alimony for the wife.

The financial statements of the parties reflected a significant accumulation of wealth during the marriage. The husband, a medical doctor, operated a hospital located on property owned by the parties. His admitted net worth was $3,749,930. A substantial portion of these assets had been acquired prior to the 1963 separation proceedings. The wife’s net worth prior to the dissolution totaled no more than $292,000, and this amount is entirely from her share of jointly held properties, except for a $15,-000 inheritance. These jointly held properties were acquired during the marital partnership and were not the result of any premarital or independent source, such as a gift or inheritance. The annual income for the husband from 1971 through 1975 was never less than $130,000, and in 1975 his income was $147,000. During this period the wife’s annual income was approximately $1,000. Since their separation, the husband has acquired another home consisting of eighty acres valued at $430,000.

In the final judgment of dissolution, the wife was awarded lump sum alimony consisting of $50,000 in cash and the husband’s interest in their jointly owned residence in which she was living; the residence was valued at $75,000. The wife further received the sum of $500 per week permanent periodic alimony and the automobile then in her possession. She retained her undivided one-half interest in the ■ Bunnell General Hospital real estate, which was held by the parties as a tenancy by the entirety. Apart from periodic alimony, the wife received property and assets worth approximately $385,000, a majority of which consisted of her undivided one-half interest in the hospital real estate. The final judgment also directed the husband to pay the wife’s attorney’s fees in an amount to be set at a future hearing.

The district court reversed this final judgment, holding the award of the marital home as lump sum alimony improper because “[a] review of the record reveals no special equity of the wife in the marital home.” 356 So.2d at 860. The court cited as authority Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976), which held that lump sum alimony should be awarded only where special equities require it or make it possible. The district court also found insufficient evidence indicating needs of the wife which would warrant the periodic alimony award of $500 per week. It remanded the periodic alimony award to the trial court for the limited purpose of “determining, based upon evidence, the needs of the wife.” 356 So.2d at 860. Finally, the district court concluded that the award of attorney’s fees was improper because the wife had the ability to pay for the services of her attorney. We reject each of these holdings by the district court.

Section 61.08, Florida Statutes, authorizes the trial judge to:

grant alimony to either party, which alimony may be rehabilitative or permanent in nature. In any award of alimony, the court may order periodic payments or payments in lump sum or both. . In determining a proper award of alimony, the court may consider any factor necessary to do equity and justice between the parties. [Emphasis supplied.]

In considering the appropriate criteria for the award of the different types of alimony, it is important that appellate courts avoid establishing inflexible rules that make the achievement of equity between the parties difficult, if not impossible.

The issues presented in this cause require an examination of criteria constituting “lump sum” and “permanent periodic alimony”; both are important elements in the determination of property disposition and support requirements in a dissolution proceeding. The related elements of “special equity” and “exclusive possession of property” are discussed in the accompanying case, Duncan v. Duncan, 379 So.2d 949 (Fla.1980). We recognize that the decisions in this subject area, both of this Court and of the district courts of appeal, are not reconcilable. It is our intent that these two opinions, to the extent possible, will bring some stability to this area of the law.

Lump Sum Alimony

The district court in the instant decision held that the award of the husband’s one-half interest to the wife as lump sum alimony was inappropriate because she had no “special equity” in the marital home. The term “special equity” has regrettably been used by this Court and the district courts of appeal to justify both (1) a nonalimony property interest, and (2) an award of lump sum alimony. The use of the term “special equity” to identify facts which allow an award of lump sum alimony is in fact a misnomer and has caused confusion. To eliminate this confusion, it is necessary to distinguish the purposes for which the two types of “special equity” have been used.

The term “special equity” was created to describe a vested interest in property brought into the marriage or acquired during the marriage because of contribution of services or funds over and above normal marital duties. Eakin v. Eakin, 99 So.2d 854 (Fla.1958); Heath v. Heath, 103 Fla. 1071, 138 So. 796 (1932). This vested interest is not alimony. The “special equity” doctrine was developed to avoid the inequities of the existing statutory provision which denied alimony to an adulterous wife despite her special contribution of services or funds over and above normal marital duties. Although the statutory prohibitions underlying the formulation of the special equity doctrine no longer exist, this vested interest aspect of the doctrine remains a viable part of our case law.

The term “special equity” has also been used to justify an award of lump sum alimony. When employed in this context, it concerns only whether the equities of the case justify a lump sum award. The property interest or lien concept of “special equity” is entirely distinct from the determination of parties’ equities in a lump sum alimony award. The term “special equity” should not be used when considering lump sum alimony; rather, it should be used only when analyzing a vested property interest of a spouse. See Ball v. Ball, 335 So.2d 5 (Fla.1976); Eakin v. Eakin; Heath v. Heath.

In granting lump sum alimony,, the trial court should be guided by all relevant circumstances to ensure “equity and justice between the parties.” § 61.08, Fla. Stat. This Court recognized in Yandell v. Yandell the broad scope of the trial judge’s discretion in granting lump sum alimony, consistent with the statutory mandate. The “special equities” referred to in Yandell concern only the general equities of the case. We stated in Yandell:

[OJrdinarily ... a lump award should be made only in those instances where some special equities might require it or make it advisable; for instance, where the wife may have brought to the marriage, or assisted her husband in accumulating, property. . . . There may be other situations which might justify or possibly require a lump sum award . . . A lump sum allowance of permanent alimony is not “fit, equitable and just” unless the husband is in a position to make payment of the sum so granted over and above the requirements attendant upon the maintenance of his business or employment .
[W]here the husband’s financial condition is such as to enable him to respond to a gross allowance of alimony without jeopardy to his business, profession or employment it may be the better solution to grant such allowance when all other equitable considerations justify it .

39 So.2d at 556-57 [citations omitted] [emphasis supplied], Yandell clearly does not limit the use of lump sum alimony to instances of support or vested property interests. A judge may award lump sum alimony to ensure an equitable distribution of property acquired during the marriage, provided the evidence reflects (1) a justification for such lump sum payment and (2) financial ability of the other spouse to make such payment without substantially endangering his or her economic status. Brown v. Brown. In our opinion, the award of the marital home as lump sum alimony may be coupled with other lump sum alimony or permanent periodic alimony awards if justified by the evidence. The collective use of such alimony awards has been approved recently by this Court in McDonald v. McDonald, 368 So.2d 1283 (Fla.1979), and by the Third District Court of Appeal. See Hyatt v. Hyatt, 315 So.2d 11 (Fla. 3d DCA 1975); Vandervoort v. Vandervoort, 300 So.2d 694 (Fla. 3d DCA 1974).

Although the award of lump sum alimony is not dependent upon a finding of a prior vested right, there does arise upon the entry of a final judgment of a lump sum award a vested right which is neither terminable upon a spouse’s remarriage or death nor subject to modification. It may consist of real or personal property, or may be a monetary award payable in installments. Jurisdiction may be expressly retained, however, to terminate lump sum alimony installment payments upon a spouse’s remarriage or death when the parties agree to such a provision in a property settlement agreement. Further,- jurisdiction may be retained to enter periodic alimony if found necessary after such termination of lump sum alimony installment payments. See Hyatt v. Hyatt; Langston v. Langston, 257 So.2d 625 (Fla.3d DCA 1972).

Permanent Periodic Alimony

Permanent periodic alimony is used to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties. The two primary elements to be considered when determining permanent periodic alimony are the needs of one spouse for the funds and the ability of the other spouse to provide the necessary funds. The criteria to be used in establishing this need include the parties’ earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during its course, and the value of the parties’ estates.

A spouse’s ability to pay may be determined not only from net income, but also net worth, past earnings, and the value of the parties’ capital assets. Firestone v. Firestone, 263 So.2d 223 (Fla.1972). Responsibilities to other dependents for support needs may be considered when determining a spouse’s financial capacity.

While permanent periodic alimony is most commonly used to provide support, in limited circumstances its use may be appropriate to balance such inequities as might result from the allocation of income-generating properties acquired during the marriage. Patterson v. Patterson, 315 So.2d 104 (Fla. 4th DCA 1975).

As a general rule, permanent periodic alimony is terminated upon the death of either spouse or the remarriage of the receiving spouse. First National Bank in St. Petersburg v. Ford, 283 So.2d 342 (Fla. 1973); In re Estate of Freeland, 182 So.2d 425 (Fla.1966).

Once instituted, permanent periodic alimony is subject to modification upon a substantial change of circumstances, Chastain v. Chastain, 73 So.2d 66 (Fla.1954), and may be converted to rehabilitative alimony if the circumstances warrant such a change in the alimony scheme. Although rehabilitative alimony is not at issue in these proceedings, it is necessary to define its purpose in order to distinguish it from permanent periodic alimony. The principal purpose of rehabilitative alimony is to establish the capacity for self-support of the receiving spouse, either through the redevelopment of previous skills or provision of the training necessary to develop potential supportive skills. Reback v. Reback, 296 So.2d 541 (Fla. 3d DCA 1974). Where appropriate, rehabilitative alimony may be converted to permanent periodic alimony.

Judicial Discretion of the Trial Judge

Dissolution proceedings present a trial judge with the difficult problem of apportioning assets acquired by the parties and providing necessary support. The judge possesses broad discretionary authority to do equity between the parties and has available various remedies to accomplish this purpose, including lump sum alimony, permanent periodic alimony, rehabilitative alimony, child support, a vested special equity in property, and an award of exclusive possession of property. As considered by the trial court, these remedies are interrelated; to the extent of their eventual use, the remedies are part of one overall scheme. It is extremely important that they also be reviewed by appellate courts as a whole, rather than independently.

In order to properly review orders of the trial judge, appellate courts must recognize the distinction between an incorrect application of an existing rule of law and an abuse of discretion. Where a trial judge fails to apply the correct legal rule, as when he refuses to terminate periodic alimony upon remarriage of the receiving spouse, the action is erroneous as a matter of law. This is not an abuse of discretion. The appellate court in reviewing such a situation is correcting an erroneous application of a known rule of law.

However, where the action of the trial judge is within his judicial discretion, as in the establishment of the amount of alimony or award of child custody, the manner of appellate review is altogether different.

Judicial discretion is defined as:
The power exercised by courts to determine questions to which no strict rule of law is applicable but which, from their nature, and the circumstances of the case, are controlled by the personal judgment of the court.

1 Bouvier’s Law Dictionary and Concise Encyclopedia 804 (8th ed. 1914). Our trial judges are granted this discretionary power because it is impossible to establish strict rules of law for every conceivable situation which could arise in the course of a domestic relation proceeding. The trial judge can ordinarily best determine what is appropriate and just because only he can personally observe the participants and events of the trial.

We cite with favor the following statement of the test for review of a judge’s discretionary power:

Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.

Delno v. Market Street Railway Company, 124 F.2d 965, 967 (9th Cir. 1942).

In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the “reasonableness” test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.

The discretionary power that is exercised by a trial judge is not, however, without limitation, and both appellate and trial judges should recognize the concern which arises from substantial disparities in domestic judgments resulting from basically similar factual circumstances. The appellate courts have not been helpful in this regard. Our decisions and those of the district courts are difficult, if not impossible, to reconcile. The trial court’s discretionary power is subject only to the test of reasonableness, but that test requires a determination of whether there is logic and justification for the result. The trial courts’ discretionary power was never intended to be exercised in accordance with whim or caprice of the judge nor in an inconsistent manner. Judges dealing with cases essentially alike should reach the same result. Different results reached from substantially the same facts comport with neither logic nor reasonableness. In this regard, we note the cautionary words of Justice Cardozo concerning the discretionary power of judges:

The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to “the primordial necessity of order in the social life.” Wide enough in all conscience is the field of discretion that remains.

B. Cardozo, The Nature of the Judicial Process 141 (1921).

The Instant Case

In the instant case there was no rule of law which dictated the property disposition and the alimony terms. The trial judge had the discretionary authority to establish such terms as would be equitable under the circumstances. We find that the award to the wife of $500 a week alimony and the marital home as lump sum alimony, as well as the grant of attorney’s fees, was not an abuse of discretion.

Given the factual circumstances of this cause, it is appropriate that we consider the principles enunciated by the First District Court of Appeal in Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974), concerning the distribution of accumulated material wealth in a dissolution proceeding. In speaking for the court, Judge Rawls stated:

How shall the material wealth of a marriage which is being dissolved be divided when one. partner, the wife, has contributed her time to the marital home and children of the parties while the husband has pursued the accumulation of material goods. The evolution of the law of alimony that we have reviewed in length shows that today the contributions of each party to the accumulation of material assets must be considered in dissolving the marital partnership. Either spouse may contribute either by working in the market place or by working as a homemaker. The fact that in one marital venture a spouse is gainfully employed in the market place and pays a housekeeper to rear the children and keep house is not distinguishable from the spouse who devotes his or her full time to the profession of homemaker. The primary factual circumstance is each spouse’s contribution to the marital partnership. In the case sub judice, the wife has been shortchanged. The wife has not been adequately compensated for the contribution that she made as a fulltime mother and homemaker to the equal partnership marriage. We hold that the trial court abused its discretion in awarding the wife a pittance of the material assets accumulated in the husband’s name during 21 years. In so holding, we emphasize even though the cited authorities on the subject speak of “equal partners” and complete equality as partners, we are not engrafting upon the jurisprudence of this state the law of community property. On the question of alimony the judgment is reversed with instructions to the trial court to enter an award of lump sum alimony sufficient to compensate the wife for her contribution to the marriage.

Id. at 726. The court emphasized that its policy was not grounded upon principles of community property, but on basic fairness; a dissolution award should be sufficient to compensate the wife for her contribution to the marriage.

We recognize that a trial court need not equalize the financial position of the parties. However, a trial judge must ensure that neither spouse passes automatically from misfortune to prosperity or from prosperity to misfortune, and, in viewing the totality of the circumstances, one spouse should not be “shortchanged.” Brown v. Brown.

In the instant case, the parties were married when both were quite young. The wife assisted to a limited extent in the profession and business of the husband and maintained the home while the husband achieved substantial success in his medical and business careers. All the wealth and property involved in this proceeding were acquired during the marriage of the parties, and a large part of these assets were acquired prior to the separation. The total amount of property awards to the wife was approximately $385,000, including the original home and a $50,000 lump sum cash award. The total value of the property remaining with the husband exceeded $3.3 million.

We find the district court erred in holding the lump sum alimony award of the husband’s one-half interest in the marital home improper; we believe its holding resulted from an improper application of the vested interest “special equity” doctrine. This lump sum alimony award was clearly within the trial court’s discretion and was justified as part of an equitable distribution of the property of the parties acquired during their marriage.

We find that the trial court’s periodic alimony award of $500 per week was reasonable and should not be disturbed. Given the income of the parties, the length of the marriage and the standard of living enjoyed by the parties, the age and education of the wife, and the totality of the parties’ respective financial circumstances, this alimony award is neither unreasonable nor arbitrary. We acknowledge that reasonable persons might differ as to what is an appropriate sum for permanent periodic alimony in this cause, but we find it is within the parameters of reasonableness; therefore, there can be no finding of an abuse of discretion.

The final issue presented to us is whether the award of the wife’s attorney’s fees, to be determined at a subsequent hearing, was error. In Cummings v. Cummings, 330 So.2d 134, 136 (Fla.1976), we cited Mertz v. Mertz, 287 So.2d 691 (Fla. 2d DCA 1973), as correctly stating that the purpose of section 61.16, Florida Statutes, was to ensure that both parties will have similar ability to secure competent legal counsel. Without question, the financial positions of the parties in this proceeding are not the same. The husband has a superior financial ability to secure and pay counsel. It is not necessary that one spouse be completely unable to pay attorney’s fees in order for the trial court to require the other spouse to pay these fees. Given the complexity of the cause and the time necessary to appropriately resolve the issues, the award of attorney’s fees in this case was proper to avoid an inequitable diminution of the fiscal sums granted the wife in these proceedings.

For the reasons expressed, the decision of the district court is quashed, and the final judgment of the trial court is reinstated.

It is so ordered.

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

SUNDBERG, J., concurs in result only.

      . Art. V, § 3(b)(3), Fla.Const.

      . We note that the literal economic effect upon the husband of paying alimony of $26,000 is not as demanding as would appear at first impression. All periodic alimony payments are tax deductible; the husband has no tax obligations for the $26,000. Further, because of the husband’s tax bracket, the majority of the paid amount would have been lost in taxes. The husband realizes a loss of less than $10,000 annually as a result of this alimony payment.


author: PER CURIAM.

text:
    Anthony ANTONE, Appellant, v. STATE of Florida, Appellee.
    No. 50240.
    Supreme Court of Florida.
    March 27, 1980.
    Rehearing Denied May 21, 1980.

      Angelo M. Ferlita of Diecidue, Ferlita & Prieto, Tampa, for appellant.
    Jim Smith, Atty. Gen., Charles Corees, Jr., Asst. Atty. Gen., Tampa and T. Edward Austin, State’s Atty., Jacksonville, for ap-pellee.
   PER CURIAM.

The appellant Anthony Antone was convicted of murder in the first degree. The trial judge imposed the death sentence in accordance with the jury’s advisory sentence recommendation. We have jurisdiction.

For the reasons expressed, we affirm this contract murder conviction and the imposition of the death sentence.

Our consideration of this cause was delayed by the remand for testimony on an application for new trial relative to an agreement made by the Florida Department of Criminal Law Enforcement (FDCLE) for attorney representation of the principal witness, Haskew, and the payment of $11,500 fee for attorney services. This agreement was unknown to either the prosecutor or defense counsel until this cause was on appeal to this Court. We find the conduct of the FDCLE improper but conclude there was no prejudicial error when we consider the totality of the record.

This murder was committed on the morning of October 23, 1975, when Detective Richard Cloud, a suspended Tampa police officer, was killed at the front door of his home. Antone’s conviction was based on the fact that he was the mastermind of this execution slaying, and he directly hired the two men who carried out this contract murder. One of the men Antone hired, Ellis Marlow Haskew, was the primary witness for the state.

Haskew’s trial testimony revealed the following material facts of this murder. Upon discharge from Florida State Prison in May, 1975, Haskew returned to Tampa to live and to establish contact with Antone. In September, 1975, Haskew helped Benjamin Gilford to escape from prison, after which he and Gilford went to the Bradenton area to live. Immediately after this escape, Antone advised Haskew by telephone that he was looking for someone to perform five “installations,” which Haskew defined as murders. Haskew and Gilford then traveled to Tampa where Antone personally informed Haskew that another man wanted five people killed, including Richard Cloud. Haskew accepted $1,750 in “front money” which was used in part to purchase a used Oldsmobile. In late September, 1975, he went to Antone’s house and was given a .32 caliber automatic with an attached silencer to test. Although Antone previously had tested the gun himself, he wanted Haskew to check the effectiveness of the silencer. Haskew fired the gun twice into a rattan couch in Antone’s home. After the testing, Antone repacked the silencer with fiber used in air conditioning filters which he stored in a shed behind his house.

In addition to supplying Haskew with the gun, Antone gave him a picture of Cloud and drove Haskew by Cloud’s home. Approximately ten days before Cloud’s death, Antone asked Haskew to complete his assignment because Cloud was due to testify before a grand jury about matters concerning Antone’s friends. Haskew made final preparations for this murder by constructing a cardboard box to conceal the weapon, retesting the gun, which required more packing fiber from Antone, and obtaining ammunition from an outside party. On October 23, 1975, he and Gilford drove past Cloud’s home and noticed that only Cloud’s car was there. They circled the house, and Gilford left the vehicle. While Gilford entered the house, Haskew drove around the block. When he returned to pick Gilford up, he saw an ashtray fly out of the front door after Gilford. Haskew recalled that Gilford later explained that Cloud had thrown an ashtray or a plant at him as he fired at Cloud. Antone visited Haskew at his apartment later that day, gave him $200 to get Gilford out of town, and drove with Haskew to Gandy Bridge to dispose of the murder weapon in Tampa Bay. Haskew made several trips between Tampa and Miami in the ensuing days and received about $9,000 from Antone in several installments. It was also established that Antone personally received at least $750 for this contract murder.

On February 25, 1976, at approximately 8:30 a. m., Haskew was arrested in Miami. Although he initially denied involvement with the Cloud murder, later that day he admitted his participation and agreed to cooperate with law enforcement authorities. Haskew fully implicated Antone as the person who hired him and Gilford to murder Cloud. He also explained the telephone code arrangement which enabled Antone to determine the number from which Haskew was calling. Upon receiving the code, Antone would return the call to that number from a telephone booth. In cooperation with the FDCLE, Haskew called the appellant at approximately 8:30 p. m. that same day and used the code to have Antone return the call at a pay phone in the FDCLE building in Miami. The appellant Antone had been placed under surveillance at the time and was observed leaving his house and going to a pay phone booth around the corner. A recording made of the return call from Antone was later introduced into evidence.

Approximately an hour and a half later, at 10 p. m. on February 25, 1976, Antone was arrested at his home and taken to the office of the Federal Bureau of Investigation. While at that office, Antone complained of chest pains and discomfort. Antone was taken to the hospital where he was subsequently placed in the coronary care unit. At approximately 1:10 a. m. the following morning, with the approval of the attending physician, FBI agent Arwine entered Antone’s hospital room. Arwine testified that “Mr. Antone told me that he was a hundred percent Sicilian and Sicilians do not fink.”

In the afternoon of February 26, 1976, a search warrant was issued to search Antone’s residence, including any vehicles, cur-tilages and appurtenances. The warrant sought from the premises “certain evidence, to wit: .32 caliber projectiles, couch, cushions, couch stuffing, and counterfeit currency.” The affidavit in support of the warrant stated: (1) Richard Cloud was shot and killed on October 23, 1975, and evidence from the crime scene indicated that the shots fired were from a .32 caliber automatic pistol; (2) Ellis Marlow Haskew had been arrested and had admitted being present at the murder of Cloud by Benjamin Gilford, and that Gilford used a .32 automatic pistol given to Haskew by Antone; (3) prior to giving the pistol to Haskew, Antone tested the weapon by firing it into a couch in the den of his residence, and the fired projectiles were still in the couch, floor, or surrounding walls; (4) at the time of Antone’s arrest, the arresting officer had seen a couch in those premises; and (5) Haskew had informed the affiant that Antone kept counterfeit money in the premises, and this appeared to be confirmed in a recorded conversation between Haskew and Antone which was overheard by the affiant.

On February 26, 1976, a search of Antone’s premises was conducted in accordance with the warrant at approximately 6:30 p. m. A bullet was recovered from a rattan couch which, when compared with the bullet removed from the left leg of Cloud, was found to have been fired from the same weapon. Identical comparisons were also made with other bullets found at Cloud’s home, including spent bullets found on the carpet under the dining room table, beneath the couch, and under the house in a joist. In addition, the search produced blue air conditioning fibers which were seized from a work shed in the rear of Antone’s house. Haskew had stated that these fibers were used to pack the silencer. Expert testimony indicated that these seized fibers compared favorably with fibers taken from the screen door at Cloud’s house immediately following the murder.

In support of Haskew’s testimony, a neighbor testified that he was standing in his carport and heard shots from the direction of Cloud’s house. He looked up and saw a car with a driver in it. The engine was running and the passenger door was wide open. A few seconds later a man ran from Cloud’s house with a brown cardboard box in his hand, jumped in the car, and sped off. The record further reflects that cardboard fragments were found near the screen door of Cloud’s house, and four bullet holes were in the door. Cloud’s mother testified that a week prior to her son’s death a man whom she identified as the appellant Antone came to Cloud’s home asking for him.

Antone testified in his own behalf and denied participation in this murder-for-hire scheme. Counsel for the appellant also presented testimony impeaching Haskew’s reputation for truth and veracity. Haskew acknowledged during cross-examination that, with the advice of counsel, he had entered into a plea agreement with the state. Under the agreement Haskew would receive a thirty-five year sentence, and he expected to be eligible for parole in seven to eight years.

The jury returned a verdict of guilty and recommended the imposition of the death penalty. The trial judge imposed the death sentence, finding as aggravating circumstances: (1) Antone had been convicted of two armed robberies which were felonies involving the use of threat of violence to another person; (2) this was a contract murder and therefore committed for pecuniary gain; (3) An tone ordered the execution of Cloud to disrupt and hinder the enforcement of laws; and (4) the murder was particularly heinous, cruel, and vicious. The trial judge found no mitigating circumstances.

While this cause was on appeal, the prosecuting attorney filed a motion to supplement the record which advised this Court that the FDCLE had paid substantial fees to attorneys for Ellis Marlow Haskew and that such information had not been previously known to the prosecuting attorney. In Antone v. State, 355 So.2d 777 (Fla.1978), we remanded this cause to the trial court for a determination of whether a violation prohibited by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), had occurred and whether a new trial should be granted. We advised the trial court that it should be guided by the materiality standards defined by the United States Supreme Court in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

In a detailed order, the trial court denied a new trial. It found that the FDCLE had paid the sum of $11,500 for an attorney to represent Haskew, and that Haskew was aware of this fact. The trial court further found that the questions asked of Haskew, both in deposition and at trial, were directed solely to the plea bargain and were answered truthfully. The trial court concluded that there 4ms no violation of the standards established by the United States Supreme Court in Brady v. Maryland and United States v. Agurs.

We will consider the issues raised in this appeal in three parts: (a) the trial phase, (b) the request for new trial on the grounds of newly discovered evidence, and (c) the appropriateness of the sentence.

A. Trial Phase

Antone contends his conviction should be set aside because: (1) the search of his house was improper; (2) his statements were inadmissible; (3) testimony relating to his silence was improperly admitted in evidence; (4) testimony implicating him in other crimes was improperly allowed; (5) inquiry concerning Haskew’s character was improperly limited; (6) the trial court improperly denied his motion to compel disclosure of a confidential informant; (7) his motion to dismiss the indictment was improperly denied; and (8) Florida’s death penalty statute is unconstitutional. For the reasons expressed, we reject each contention.

Validity of Search Warrant

In challenging the validity of the search warrant, Antone asserts that the supporting affidavit contained material misrepresentations, contained an insufficient statement of underlying facts, and lacked the requisite specificity in describing the scope of the search. The asserted misrepresentation is based on the statement that “Anthony Antone keeps counterfeit currency within the northeast bedroom door frame.” Because no counterfeit money was found, Antone contends this statement was false and, therefore, the evidence obtained under the authority of the warrant must be suppressed. Although the state disputes the falsity of the allegations, we need not decide the issue of its truth or falsity. The issue is controlled by. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), which held that where a defendant makes a preliminary showing that a false statement made knowingly and intentionally or with reckless disregard for the truth was included by the affiant in the search warrant affidavit and the false statement was necessary to the finding of probable cause, and evidentiary hearing must be held. If during an evidentiary hearing the alleged perjury is established by preponderance of the evidence, the court must then excise the falsity from the affidavit and review the remainder of the affidavit to determine whether there remains sufficient grounds to establish probable cause. There was an evidentiary hearing in the instant case. There was no showing that the statement was intentionally and falsely made. In fact, during the suppression hearing counsel stated: “We don’t suggest that the misrepresentation was intentional.” Further, and most important, we find that even if the challenged statements were excised, the remainder of the affidavit is sufficient to establish probable cause.

The appellant also attacks the search warrant on the basis that there are insufficient underlying facts to meet the tests set forth in Spinelii v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The Aguilar-Spinelli test requires that a warrant which is based on an informant’s tip must: (1) establish that the information provided by the informant, if true, is sufficient to support a finding of probable cause, and (2) the affidavit must establish that the informant is credible or his information is reliable. The allegations in the affidavit that projectiles fired from the murder weapon would be found in a couch or in a wall in Antone’s home and that counterfeit money was kept by Antone in his home clearly establishes probable cause. Secondly, the credibility of Haskew’s confession, that he was present when Richard Cloud was murdered with a .32 automatic pistol, was established when tests revealed that a bullet recovered from Cloud’s body had in fact been fired from a .32 caliber pistol. Further, the affidavit’s detailed description of Antone’s home was in part corroborated by a police officer who recently had been at the home and had seen a couch located in precisely the place where Haskew described. The affidavit reveals both the source of Haskew’s information and the corroborating evidence found by independent investigations. In our view, this affidavit meets both federal and state requirements and is legally sufficient.

The appellant next contends that the admission into evidence of the blue fiber was improper because it was seized from the shed or workshop behind Antone’s house and the description of the fiber was not included in the warrant. We disagree. The description of the place to be searched expressly included the term “curtilage.” That term encompasses a workshed used in connection with a dwelling for the purposes of a search pursuant to a properly issued warrant. See Joyner v. State, 303 So.2d 60 (Fla. 1st DCA 1974); Phillips v. State, 177 So.2d 243 (Fla. 1st DCA 1965). We find that the shed was a proper subject of the search warrant, and, under the circumstances of this case, the seizure of the fiber was proper and reasonable.

Admissibility of Appellant’s Statements

Antone contends that several brief statements which he made following his arrest should have been suppressed because they were obtained in violation of his fifth amendment privilege against self-incrimination. On the night of his arrest, Antone suffered a mild heart attack which he claims prevented his appreciation of the Miranda warnings, created a coercive atmosphere, and precluded his statements from being genuinely voluntary. We reject these contentions and find that Antone’s actions reflect a complete understanding of his situation. Immediately following the administration of the warnings and prior to his mild heart attack, he agreed to be interviewed and further agreed to speak with Haskew over the phone, at which time he continually repeated “Marlbw, why did you do this to me?” Antone began to complain of discomfort only after the telephone conversation and an admission that he knew Haskew and two other men were the subject of an investigation.

Antone also challenges the admissibility of his statement made at the hospital, “Sicilians do not fink.” This statement, however, appears from the record to be clearly voluntary and was made after a doctor advised officers it would be all right to speak with Antone. Voluntary statements are simply not barred from admissibility by the fifth amendment.

Antone next asserts that the trial judge’s naked denial of the motion to suppress these statements mandates a reversal pursuant to McDole v. State, 283 So.2d 553 (Fla.1973). This Court, however, has modified the strict requirement that an express finding must appear in the record. See Wilson v. State, 304 So.2d 119 (Fla. 1974); Henry v. State, 328 So.2d 430, 431 n.1, (Fla.), cert. denied, 429 U.S. 951, 97 S.Ct. 370, 50 L.Ed.2d 319 (1976). Ideally, the trial judge should specify his conclusions concerning the voluntariness of a disputed confession or inculpatory statement. However, due process is not offended when the issue of voluntariness is specifically before the judge and he determines that the statements are admissible without using the magic word “voluntary.” The record reflects that the only issue before the court was the voluntariness of Antone’s statements. The evidence clearly supports the finding that these statements were free from coercion. The resulting denial of the motion to suppress was thus not in error.

Comment on Silence

Antone contends that the following testimony of Agent Arwine constitutes impermissible comment on Antone’s decision to remain silent:

I thereafter went into the room and was, during this period, from 1:10 until 1:20, the time I left the room, there was a nurse in and out of the room and Mr. Antone did not volunteer any information except he made one statement. Mr. Antone told me that he was a hundred percent Sicilian and Sicilians do not fink.

We find this testimony permissible as it recounted Antone’s affirmative statement. In fact, Antone did not stand mute; Ar-wine’s testimony comments not on Antone’s silence but on what he said. Further, defense counsel interposed no objection at trial and, therefore, there is no fundamental constitutional error. Clark v. State, 363 So.2d 331 (Fla.1978).

Evidence of Unrelated Criminal Activity

Antone maintains that we must reverse because the trial court failed to grant a mistrial following Haskew’s testimony implicating Antone in other criminal activity. Haskew’s testimony related that Antone wanted him to kill five men, three named and two unnamed. Our view of the record establishes that the challenged testimony relating to other criminal activity occurred as part of the primary arrangements for this contract murder and was therefore relevant to show the existence of this conspiracy. See Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959).

Improper Limitation in Presenting Impeachment Testimony

Antone asserts that the trial court erroneously limited the direct examination by defense counsel of a character witness whose testimony impeached Has-kew’s reputation for truth and veracity. Mr. Tommy Walker, former mayor of the City of Bartow, testified:

Q Mr. Walker, do you know the general reputation of Ellis Marlow Haskew for truth and veracity in the community of Bartow?
A I would think I do, yes.
Q Have you ever discussed his reputation with others in the community? MR. BOWDEN: Your Honor, I object to the form of the question.
THE COURT: You may rephrase that.
Q (By Mr. Ferlita) Have you ever heard his reputation discussed by other people?
A Yes, sir, often.
Q What is that reputation of Ellis Mar-low Haskew for truth and veracity within the community of Bartow? MR. BOWDEN: Objection to the form of the question, Your Honor. THE COURT: Overruled.
THE WITNESS: Answer?
THE COURT: Yes, you may answer. THE WITNESS: I would say it’s not good.
Q (By Mr. Ferlita) Based on the general reputation of Marlow Haskew for truth and veracity, would you believe him under oath?
MR. BOWDEN: Objection, Your Honor. That is an improper question of the witness.
THE COURT: Sustained.

This record clearly reflects that the witness was properly allowed to tell the jury that Haskew’s reputation for truth and veracity in the community was not good. A further question objected to by the prosecution and sustained by the trial court sought to elicit the individual and personal view of the witness. We agree with the trial court. The clear weight of authority allows only the general reputation of the witness in the community to be admissible. See generally C. McCormick, Evidence § 44 (2d ed. 1972).

Antone cites two early cases which in dicta suggest that the excluded question would be permissible. Nelson v. State, 32 Fla. 244, 13 So. 61 (1893); Robinson v. State, 16 Fla. 835 (1878). To the extent that these cases allow this type of opinion evidence to impeach a witness, we overrule them. We also find Antone was not prejudiced by the exclusion of the disputed question. Haskew’s reputation was properly placed before the jury by the previous question and answer.

Failure to Disclose Confidential Informant

Antone asserts that we must reverse because the trial court denied his motion to compel disclosure of a confidential informant. The case relied on by Antone, Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), does not mandate disclosure of every confidential informant. Rather, a careful balancing of interests is necessary. The record reflects that this confidential informant was not present at any material point in this incident and did not testify. We find Antone has not sustained his burden of showing prejudice by this nondisclosure. See Hawkins v. State, 312 So.2d 229 (Fla. 1st DCA 1975).

Failure to Dismiss Indictment and Constitutionality of the Death Penalty Statute

Antone contends that the grand jury which indicted him was improperly selected. More than mere conclusory statements, however, are necessary to sustain such a challenge. See §§ 905.02-.06, Fla. Stat. (1977). He also contends that the right to confront his accusers, the right to counsel, and other constitutional rights were violated by the instant grand jury proceedings. The protections afforded by the Bill of Rights, however, do not attach in full to grant jury proceedings which are inquisitorial rather than adversary in nature. See, e. g., United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976); United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973); In re Groban, 352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 376 (1957).

Antone finally urges, without elaboration, that the first-degree murder statute and the death penalty statute are unconstitutional. These issues have been previously rejected, and the law is now settled. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Alvord v. State, 322 So.2d 533 (Fla.1975), cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976); State v. Dixon, 283 So.2d 1 (Fla. 1973), cert. denied, Hunter v. Florida, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974).

B. New Trial Upon Newly Discovered Evidence

Antone contends that he is entitled to a new trial because of the discovery subsequent to trial that the FDCLE had paid an attorney $11,500 to represent Haskew. Antone argues that the failure to disclose this information prior to trial violates both Florida Rule of Criminal Procedure 3.220 and the dictates of Brady v. Maryland and United States v. Agurs. We remanded this cause to the trial court, Antone v. State, 355 So.2d 777 (Fla.1978), for an evidentiary hearing to determine if a new trial should be granted. The trial court denied a new trial, and we agree.

The resolution of this issue is controlled by the guidelines established in Agurs. There the majority opinion outlined three situations in which a Brady violation might occur. The first situation occurs when undisclosed evidence demonstrates that the prosecution’s case included perjured testimony. If the prosecution knew or should have known of the perjury and there is a reasonable likelihood that the false testimony could have altered the jury’s judgment, then fundamental fairness mandates that a new trial be granted. Antone contends that Haskew’s testimony concerning the plea bargain arrangement was false, that the prosecution should have known it was false, and that it could have affected the judgment of the jury. We cannot agree. As the trial court reasoned in its detailed order, questions asked of Haskew both in deposition and at trial were directed solely to the plea bargain agreement. Taken in context, Haskew’s answers can fairly be characterized as truthful.

The second situation occurs when a pretrial request for specific evidence is made. If the requested evidence is withheld by the prosecution following a specific request and the evidence is material— meaning that it might have affected the outcome of the trial — then a new trial must be ordered. The Agurs court succinctly stated: “When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable.” 427 U.S. at 106, 96 S.Ct. at 2898. In the instant case defense counsel made only general demands for “material or information within the State’s possession or control which tends to negate the guilt of the Defendant . . . .” Antone’s attorneys also filed a motion seeking disclosure of all evidence favorable to the defendant.' We therefore find this second situation not applicable because no specific request was ever made.

The third situation occurs when a general request for Brady information has been made and a failure to disclose has followed. In this situation, the standard of “materiality” which Agurs states must be applied is as follows:

The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.

427 U.S. at 112-13, 96 S.Ct. at 2402 [footnotes omitted]. Applying this test to the undisclosed evidence of FDCLE’s payment of Haskew’s attorney’s fees, we find that Antone’s conviction must stand. The evidence in no way detracts from the testimony presented by the state which established Antone’s guilt beyond and to She exclusion of every reasonable doubt. At best, the evidence was useful for impeachment of Haskew, but it is not germane to Antone’s guilt or innocence. Further, and even more significant, evidence tending to impeach Haskew was already before the jury, and this evidence would have added little to defense efforts to show Haskew as a witness unworthy of the jury’s belief. In addition, Haskew would have been entitled to counsel in any event, and there is no showing of any conspiracy between his counsel and the state. Upon our remand, the trial court found no evidence of deliberate prose-cutorial misconduct. We agree. We find the undisclosed evidence clearly fails to meet the Agurs test of materiality, and a new trial is therefore not required.

C. The Sentencing Phase

It is our duty to examine the record in this cause and determine whether there are clear and convincing facts which warrant the imposition of the death penalty. In accepting the jury recommendation and imposing the death penalty, the trial judge found four statutory aggravating factors: (1) Antone had been convicted of two felonies involving the threat of violence to a person, specifically two armed robberies, which we find is appropriately an aggravating circumstance under section 921.-141(5)(b); (2) the murder had been committed for pecuniary gain in that Antone received at least $750 for his share of this contract killing, and we find this is an appropriate aggravating circumstance under section 921.141(5)(f); (3) the murder was committed to disrupt and hinder the enforcement of laws in that it prevented the victim from testifying before a grand jury, and we find this is an appropriate aggravating circumstance under section 921.-141(5)(g); and (4) this murder was especially heinous, atrocious, and cruel in the manner in which it was carried out. Because of our recent decisions, there may be a question whether this is an appropriate aggravating circumstance. See, e. g., Cooper v. State, 336 So.2d 1133 (Fla.1976).

The trial court found no mitigating circumstances, and we agree that the record supports this finding. The appellant asserts that he was only an accomplice in a capital felony committed by another person and that his participation was relatively minor. This contention is without merit. The facts in this case are clearly distinguishable from the facts and circumstances in Slater v. State, 316 So.2d 539 (Fla.1975). Antone was the mastermind of this operation. He supplied the gun, paid the money from his pocket, and pressured Haskew to complete the task. His participation cannot under any view of this record, be termed minor. Without Antone’s participation, the murder would not have come to fruition.

Because we fully approve the first three aggravating circumstances and find no mitigating circumstances, it is not necessary to consider the appropriateness of the trial court’s finding that the murder was heinous, atrocious, or cruel. An error in finding this aggravating circumstance does not invalidate the imposition of the death sentence. Elledge v. State, 346 So.2d 998 (Fla.1977); Alford v. State, 307 So.2d 433 (Fla.1975). The three approved aggravating circumstances are clearly sustained by the record in this case, and there are no appropriate mitigating factors that should be taken into consideration.

For the reasons expressed, we affirm the conviction of Anthony Antone for the murder of Richard Cloud and agree that the death penalty is clearly an appropriate punishment in this cause.

It is so ordered.

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

      . Art. V, § 3(b)(1), Fla.Const.

      . Florida courts have also been called upon to apply the Aguilar-Spinelli test. See, e. g., Findlay v. State, 316 So.2d 33 (Fla.1975); State v. Smith, 233 So.2d 396 (Fla. 1970); St. John v. State, 356 So.2d 32 (Fla. 1st DCA 1978); Davis v. State, 350 So.2d 834 (Fla.2d DCA 1977), cert. denied, 355 So.2d 517 (Fla.1978).

      . Wilson and Henry are distinguishable from our decision in Greene v. State, 351 So.2d 941 (Fla. 1977). In Greene we did not address the applicability of McDole, but, instead, we discussed the issue of remand when voluntariness is not clear.

      . Our holding in this matter is consistent with the new Florida Evidence Code, effective July 1, 1979. § 90.609, Fla.Stat. (Supp.1978).

      . In a federal prosecution arising from the murder of Cloud, the Fifth Circuit held that Has-kew’s false testimony concerning payment of attorney’s fees did not require a new trial, because revelation of the fact that such fees were paid by the state would not reasonably have affected the judgment of the jury. See United States v. Antone, 603 F.2d 566 (5th Cir. 1979).


text:
    Mary Hall WILLIAMS and Willet Williams, her husband, Petitioners, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, a Foreign Corporation, Respondent.
    No. 52115.
    Supreme Court of Florida.
    April 17, 1980.
    Rehearing Denied May 27, 1980.

      Steven C. Ruth of Piper, Esteva, Pennell, Karvonen & Lewis, St. Petersburg, for petitioners.
    Stephen C. Chumbris and Charles S. Carr-ere of Harrison, Greene, Mann, ,Rowe, Stanton & Mastry, St. Petersburg, for respondent.
   PER CURIAM.

By petition for writ of certiorari we have for review the decision of the District Court of Appeal, Second District, in Williams v. Hartford Accident and Indemnity Co., No. 76-1363 (Fla. 2d DCA June 29, 1977), which directly conflicts with Government Employees Insurance Co. v. Butt, 296 So. 2d 599 (Fla. 3d DCA 1974). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

On August 13, 1973, Mary Hall Williams was injured in an automobile accident caused by the negligence of another driver. Mrs. Williams and her husband reached a settlement with that driver’s insurer for $10,000, the full amount of his liability coverage but less than Mrs. Williams’ claimed damages. The Williamses then sought additional compensation from their uninsured vehicle coverage by suing their insurer, Hartford Accident and Indemnity Company. Hartford moved for and won a final judgment on the pleadings. The Williamses appealed. The District Court of Appeal, Second District, affirmed per curiam without an opinion.

The issue before this Court is whether the petitioners’ uninsured vehicle coverage was available to the extent it was greater than the limits of the tortfeasor’s liability insurance.

A preliminary explanation of the problem of uninsured and underinsured vehicle coverage is in order. Since 1961 Florida law has required automobile liability insurers to include uninsured vehicle coverage in their policies, subject to express refusal by any of the insured named in the policy. See § 627.0851, Fla.Stat. (1961). The essential purpose of such coverage is to better assure full compensation for accident victims under the policy regardless of how well or how poorly the tortfeasor provided for his liability. But the tortfeasor had to be completely uninsured before such coverage was required to be applicable. Even if an accident victim’s recovery from the tortfeasor’s insurer was less than his damages, the statute did not originally require uninsured vehicle coverage to be available for further compensation. Golphin v. Home Indemnity Co., 284 So.2d 442 (Fla. 1st DCA 1973); Continental Insurance Co. v. Wallace, 233 So.2d 195 (Fla. 3d DCA 1970); Insurance Co. of North America v. Strauss, 231 So.2d 548 (Fla. 2d DCA 1970); Gordon v. Phoenix Insurance Co., 242 So.2d 485 (Fla. 1st DCA 1970). In that instance, the tortfeasor was, in insurance parlance, an “underinsured motorist,” not an “uninsured motorist.”

Some policies provided underinsured vehicle coverage as part of uninsured vehicle coverage. Generally, such policies guaranteed full recovery for damages up to the dollar limits of such “uninsured/underin-sured vehicle coverage” regardless of whether or not the tortfeasor was insured or how much insurance he carried. But policies that provided only the statutorily prescribed form of uninsured vehicle coverage did not guarantee a full recovery because the effectiveness of that coverage depended on the happenstance of whether or not the tortfeasor was insured. If the tortfeasor was insured, then there could not be any recovery from the uninsured vehicle coverage.

Few automobile owners were aware of the difference between “uninsured vehicle coverage” and “underinsured vehicle coverage,” and too many learned of the difference only in the context of an automobile accident. Suppose that accident victims under a policy with $50,000 “uninsured vehicle coverage” in the form prescribed by statute suffered damages in that amount. If the tort-feasor was uninsured, his victims would have full compensation. But if the tort-feasor carried, say $10,000 of liability insurance, then the uninsured vehicle coverage would not apply. Instead, the tortfeasor’s victims would have an insured recovery of only the $10,000 available from the tort-feasor’s insurer, substantially less than their damages and their apparent $50,000 worth of protection from the negligence and financial irresponsibility of other motorists. Ironically, the accident victims would have been better off if the tortfeasor had violated the financial responsibility law by not carrying insurance.

The petitioners’ policy with Hartford is governed by section 627.727, Florida Statutes (1971). The portions of the two subsections relevant to this case read as follows:

The coverage provided under this section shall be excess over but shall not duplicate the benefits available to an insured under any workmen’s compensation law, disability benefits law or any similar law; under any automobile liability or automobile medical expense coverages; or from the owner or operator of the uninsured motor vehicle or any other person or organization jointly or severally liable together with such owner or operator for the accident .... [Emphasis supplied.]
(2) For the purpose of this coverage the term “uninsured motor vehicle” shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle where the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency.

The italicized portion was added by chapter 71-88, Laws of Florida, effective for policies issued or renewed after January 1, 1972, which includes the petitioners’ policy. The petitioners contend that the statute is clear and does not require or allow judicial construction: the phrase “under any automobile liability . . . coverages” must include any recovery from the tortfeasor’s insurer and, therefore, uninsured vehicle coverage operates as underinsured vehicle coverage. The petitioners also rely on an unreported federal decision, Townsley v. Hartford Accident and Indemnity Co., No. 74-49 Civ. J-S (M.D.Fla., Jan. 21, 1975), and on comments in other cases suggesting support for their position. See State Farm Mutual Automobile Insurance Co. v. Anderson, 332 So.2d 623 (Fla. 4th DCA 1976); Stuyvesant Insurance Co. v. Johnson, 307 So.2d 229 (Fla. 4th DCA 1975); Government Employees Insurance Co. v. Butt, 296 So.2d 599 (Fla. 3d DCA 1974).

The respondent counters by arguing that it was chapter 73-180, Laws of Florida, that first required underinsured vehicle coverage. Except for minor punctuation changes, the “excess over” provision of subsection (1) of section 627.727, Florida Statutes (1971) (quoted above) was not altered by that amendment. But subsection (2) was substantially changed to read as follows:

627.727 Automobile liability insurance; uninsured vehicle coverage; insolvent insurer protection.—
(2) For the purpose of this coverage, the term “uninsured motor vehicle” shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle when the liability insurer thereof:
(a) Is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency; or
(b) Has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist’s coverage.

codified as § 627.727(2), Fla.Stat. (1973). Thus the 1973 amendment clearly required uninsured vehicle coverage to also function as underinsured vehicle coverage. The respondent therefore believes that underin-sured motorist coverage was not mandated prior to the enactment of chapter 73-180, and discusses a number of cases in which courts adopted that position: Castaneda v. State Farm Mutual Automobile Insurance Co., 348 So.2d 1231 (Fla. 3d DCA 1977); American Fire and Casualty Co. v. Dawson, 320 So.2d 38 (Fla. 2d DCA 1975); Summers v. Jackson, 307 So.2d 235 (Fla. 4th DCA 1975). Because the tortfeasor in this case was insured and the petitioner’s accident took place before the 1973 amendment went into effect, the respondent concludes that the petitioners’ uninsured vehicle coverage is not available to them. Our perusal of the case law in this area uncovered two more recent cases in which courts held that unde-rinsured vehicle coverage was not required until chapter 73-180. York Insurance Co. v. Becker, 364 So.2d 858 (Fla. 2d DCA 1978); Coney v. Reserve Insurance Co., 358 So.2d 261 (Fla. 3d DCA 1978).

Section 627.727, Florida Statutes (1971), governed the policy at issue here and is the prime authority for determining whether uninsured vehicle coverage is available in this case. We find that the “excess over” provision added by chapter 71-88 required uninsured vehicle coverage to also operate as underinsured vehicle coverage.

The concepts of uninsured and underinsured are so closely related that the legislature’s failure in chapter 71-88 to use the term “underinsured” or delete earlier nominal references to “uninsured vehicle coverage” does not provide any inference that the term “uninsured” is to be narrowly construed. In any event, the “excess over” provision controls because it is the later and more specific expression of legislative will. Cable-Vision, Inc. v. Freeman, 324 So.2d 149 (Fla. 3d DCA 1975); Albury v. City of Jacksonville Beach, 295 So.2d 297 (Fla.1974); De Coningh v. City of Daytona Beach, 103 So.2d 233 (Fla. 1st DCA 1958); Johnson v. State, 157 Fla. 685, 27 So.2d 276 (1946).

Uninsured vehicle coverage is specified by section 627.727(1), Florida Statutes (1971) (quoted above), as available to the extent it is excess over but not duplicative of other recoveries, including “recovery from any automobile liability or automobile medical expenses coverages.” Not only is the word “any” all-encompassing, but the term “automobile liability . . . coverages” must refer primarily to the liability insurance of other motorists. By making “uninsured vehicle coverage” excess over any recovery from the tortfeasor’s insurer, chapter 71-88 made such coverage also function as underinsured vehicle coverage.

The respondent is mistaken in believing that the clear mandate in chapter 73-180 for underinsured véhicle coverage establishes that such coverage was not required by section 627.727, Florida Statutes (1971). Ordinarily that reasoning would lead to the correct conclusions. But the timing and circumstances of an enactment may indicate it was formal only and served as a legislative clarification or interpretation of existing law, and thus such an enactment may even suggest that the same rights existed before it. See Overstreet v. Poliak, 127 So.2d 124 (Fla. 3d DCA 1961); Gay v. Canada Dry Bottling Co. of Florida, 59 So.2d 788 (Fla.1952). We believe that the underinsured vehicle coverage provision of chapter 73-180 was intended by the legislature to clarify and secure from doubt a change in our state’s automobile insurance laws that had been enacted shortly before through chapter 71-88.

To the extent that York Insurance Co. v. Becker, Coney v. Reserve Insurance Co., Castaneda v. State Farm Mutual Automobile Insurance Co., American Fire and Casualty Co. v. Dawson and Summers v. Jackson, supra, are inconsistent with this opinion, they are hereby disapproved.

The petitioners’ uninsured motorist coverage was required by section 627.727(1), Florida Statutes (1971), to operate as unde-rinsured motorist coverage. The decision of the District Court of Appeal, Second District, is quashed. The cause is remanded with instructions that the judgment of the trial court be reversed and the cause be further remanded to the trial court for additional proceedings consistent with this opinion.

It is so ordered.

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