author: DeCARLO, Judge.

text:
    James Louis ROBINSON v. STATE.
    6 Div. 364.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    Rehearing Denied Aug. 4, 1981.

      George H. Jones, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Robert F. Tweedy, Asst. Atty. Gen., for appel-lee.
   DeCARLO, Judge.

Second degree murder; fifty years.

On July 18, 1979, Earl Lee McClendon was found dead with approximately fourteen bullet wounds on his body and a machete by his side. Appellant was tried twice for the murder of McClendon. His first trial resulted in a conviction of first degree murder and a sentence of life imprisonment. He then moved for a new trial and, after a hearing on the motion, he moved to dismiss the indictment. The trial court denied his motion to dismiss the indictment, but granted his motion for a new trial, set aside his conviction, and ordered a new trial date.

Prior to his second trial, appellant filed a plea of former jeopardy, contending that prosecutorial misconduct before and during the first trial, of which he was previously unaware, barred his re-trial. He alleged that the district attorney’s office had withheld material exculpatory evidence from him and had knowingly used perjured testimony at the first trial. Appellant’s allegations of prosecutorial misconduct center on the testimony of State’s witness Jerry Fails.

At the first trial, Fails testified that he witnessed the killing of Earl Lee McClen-don. He stated that he was in the car with appellant when McClendon approached the car without a weapon and in a non-threatening manner. Fails said that appellant reached for his .357 revolver and shot McClendon “for no reason.” McClendon fell and appellant then stepped halfway out of the car, reached in his shirt pocket for his .25 caliber automatic pistol, and shot McClendon again.

According to Fails, appellant then threw something out of the car and drove away. Fails said that appellant told him the object he threw out of the car was a “sword or machete.”

On cross-examination, Fails admitted a prior burglary conviction and the fact that he was then in jail awaiting disposition of two other felony charges. Fails denied talking to Deputy District Attorney John Black or homicide detective Sgt. Albert Wallace about the case. He also denied that anyone from the district attorney’s office had made a deal to dismiss his pending felony charges in return for his testimony.

Two weeks after appellant’s first trial, the pending felony cases against Jerry Fails were dismissed. Appellant’s allegations of prosecutorial misconduct stem from the following testimony of Deputy District Attorney John Black at the hearing on appellant’s motion for new trial:

“Q. [By appellant’s counsel] [D]id you inform me by telephone that certain information had come to light as to the way Jerry Fails had testified in the case in the presence of the jury was inconsistent with what you had learned from him when you interviewed with him?
“A. Yes, sir.”
“[By Mr. Black] At some time prior to the trial of Robinson, ... Albert Wallace brought Jerry Fails to my office in the District Attorney’s office for the purposes of talking with him concerning what he knew about the murder case against Robinson.
“At that time Fails told me and Sergeant Wallace that he had been in the car with Robinson when the man was killed... Fails said that Robinson pulled into the parking lot and stopped his car and was looking through his rear view mirror toward the building. That the deceased or the person soon to be deceased came walking up toward the car; that he had a — I think the term he used was a machete in his hand, which still had a sheath on it. And that as he walked up to the car he was waving the machete. And he added that he was — that the man with the machete was joking or kidding or that he did not intend harm. I think the words he used were that he was kidding. And that as he walked up to the door of the car that Robinson was sitting in the driver’s seat, and that as he walked up to the driver’s side of the car that Robinson turned and shot him several times.
“At that point I told Sergeant Wallace— All right. In response to a later conversation with Sergeant Wallace I told him that what the witness Fails, said could be construed in my opinion as self defense. That at that point I thought it was possible that we were under a duty to divulge that information to yourself, Mr. Jones. “At that point I had a conversation with Attorney George Jones for the defendant, in which — Number one, we had in our file a statement by the defendant in which he said that he was not the man who had shot this person, that he was not there and nowhere in the area. After talking to Mr. George Jones, George Jones told me that he was aware that there was a machete laying on the ground at the scene of the killing, and that he could not use self defense because his client, Mr. Robinson, contended that he was not the person who had been there and that shot this man—
“At that point I did not divulge what Mr. Fails had said. Now, Mr. — Of course, and this was prior to trial. I had several phone conversations from Fails and I never did talk to him. He would call and leave a message, and I never would talk to him. I had a conversation with Sergeant Wallace later, and then I had another conversation with Fails on the telephone. And he told me this or this in substance, Sergeant Wallace has told me that saying that about the machete would hurt the case, something to that effect. And then he then said now I didn’t see that machete, that was something that Robinson told me later....
“Q. [By Defense Counsel] Now, the information that you have testified to, did Sergeant Wallace know that?
“A. Yes, sir.
“Q. Did y’all discuss it?
“A. After — Before I talked to Fails the second time, which was by telephone, Sergeant Wallace called me and said that Fails was now saying that the part about the machete in the deceased’s hand was something that Robinson had told him. “And at that point I told Sergeant Wallace that I thought at that point that he was going to lie, and that we would not use him as a witness.
“Q. Well, let me ask you this, Did— “THE COURT: Wasn’t Fails a State witness?
“MR. JONES: Yes, sir.
“Q. Now, Mr. Black—
“THE COURT: I thought I remembered that—
“Q. Mr. Black, let me ask you this: You were the assigned trial district attorney, and I’ll ask you the week prior to the trial did your additional and other duties require this case to be assigned or the details to be tried by somebody else and did you, in fact, not assign this case to be tried by somebody as a division chief?
“A. Yes, sir.
“Q. And who did you assign it to?
“A. Ken Gomany.
“Q. Did you in substance inform Mr. Gomany or Mr. Davis, who tried this case, of any of the matters that you’ve testified to here today concerning Mr. Fails’ testimony or what it could or could not be expected to be?
“A. Yes, sir.”

Appellant’s plea of former jeopardy was overruled and he was tried again. During the second trial, Fails was called as the court’s own witness. His version of McClendon’s shooting coincided with his testimony at the first trial. On cross-examination, however, he admitted that he had given the district attorney a prior inconsistent statement regarding the circumstances of the shooting. He also admitted that his felony charges had been dismissed after appellant’s first trial. Appellant’s second trial resulted in a conviction of second degree murder and a sentence of fifty years.

I

Appellant cites United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), and United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1970), in support of his contention that reproseeution should have been precluded by the Fifth Amendment protection against double jeopardy. He contends that the State’s failure to turn over self-defense material prior to trial and its “knowing use of perjured testimony” at trial constituted prosecutorial bad faith which should have barred his retrial.

In Dinitz and Jorn, the United States Supreme Court alluded to the general rule that a defendant who moves for a mistrial cannot claim double jeopardy when his motion is granted and he obtains a new trial. By his motion for mistrial, he is deemed to have consented to end the first trial and obtain another one.

The court indicated, however, that if a defendant is forced to move for a mistrial because of “prosecutorial overreaching,” Dinitz, supra at 608, 96 S.Ct. at 1079, or “bad faith conduct by judge or prosecutor,” Jorn, supra at 485, 91 S.Ct. at 557, then he is not deemed to have elected to terminate his first trial and to obtain a new one. Instead, his motion is treated as a motion for mistrial by the prosecution and a retrial would constitute double jeopardy. Neither Dinitz nor Jorn, however, is applicable here since we are confronted not with a motion for mistrial, but with a motion for new trial. We therefore find the analysis of the mistrial cases of little value in determining whether double jeopardy bars reproseeution after a successful motion for a new trial. In our judgment, the reasoning of the cases finding no jeopardy problem with a new trial after reversal of a conviction is more apt here.

Ordinarily, when one who has been convicted successfully seeks review of that conviction there is no double jeopardy impediment to a new trial. United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964); Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947); United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896).

Although appellant’s motion for new trial was addressed to the trial judge and was not, in contrast to Tateo, Resweber, and Ball, supra, a submission for appellate review, it was nevertheless a request for judicial scrutiny of his conviction. The granting of a motion for new trial by the trial court is analogous to the reversal of a conviction by an appellate court; both result from error at trial. See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). When the cause for reversal is error at trial, as opposed to eviden-tiary insufficiency, there is no double jeopardy upon a retrial. Burks, supra.

In Burks, supra at 15, 98 S.Ct. at 2149, the United States Supreme Court observed the following:

“[Rjeversal for trial error, as distinguished from evidentiary insufficiency, ... is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e. g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished.”

Appellant urges us to accept the rationale of the mistrial cases, maintaining that he would have moved for (and been granted) a mistrial had he known of the alleged prose-cutorial misconduct during the first trial. This argument was considered and rejected in United States v. Barham, 608 F.2d 602 (5th Cir. 1979).

In Barham, supra, the Fifth Circuit Court of Appeals held that the government’s knowing use of perjured testimony at the defendant’s first trial did not bar a retrial after reversal of his conviction. The court determined that

“[T]he prosecutor’s conduct did not amount to prosecutorial overreaching or bad faith and that in any event double jeopardy bars a retrial after conviction only when the conviction is reversed for insufficiency of the evidence.” United States v. Barham, 625 F.2d 1221 (5th Cir. 1980).

Following the reasoning of Burks, supra, and Barham, supra, we hold that there was no double jeopardy impediment to appellant’s retrial on the basis of the prosecution’s alleged knowing use of perjured testimony at the first trial. Appellant received the relief to which he was entitled for error at his first trial — a new trial.

We also hold that there was no double jeopardy barrier to appellant’s reprose-cution based on the State’s failure to disclose alleged self-defense material prior to trial.

It is well-settled that the prosecution is under a duty to disclose material exculpatory evidence to the defense. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In the instant case it is clear that Fails’ first statement (that the victim approached the appellant with a machete) was both material and exculpatory. “If evidence highly probative of innocence is in [the prosecutor’s] file, he should be presumed to recognize its significance, even if he has actually overlooked it.” United States v. Agurs, 427 U.S. 97, 110, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976).

Therefore, we do not condone the decision by the district attorney to withhold possible self-defense material on the basis of his belief that an alibi defense would be asserted. It is not the function of the State to weigh the tactical merits of a particular defense. See Jones v. State, Ala.Cr.App., 396 So.2d 140 (1981). “[T]he prudent prosecutor will resolve doubtful questions in favor of disclosure.” Agurs, supra, at 108, 96 S.Ct. at 2399-2400.

Although we believe that disclosure of Fails’ statement should have been made, we do not find that the failure to do so barred appellant’s retrial on the basis of the double jeopardy clause. The prosecution’s failure to disclose exculpatory evidence entitles the accused to a new trial, Agurs, supra; Brady v. Maryland, supra, and here appellant obtained the relief to which he was entitled.

II

Appellant contends that the “one for one” strike method of selecting jurors in Jefferson County is a violation of due process and a denial of equal protection because it is accomplished pursuant to a statute which affects only Jefferson County. Challenges to the “one for one” strike system, however, have been consistently rejected and the procedure upheld, by a long line of Alabama cases. See Tucker v. State, Ala.Cr.App., 383 So.2d 579, cert. den., Ala., 383 So.2d 586 (1980), and cases cited therein.

III

Appellant claims that he was improperly precluded from showing the victim was under the influence of drugs at the time of the killing.

From the record:

. “Q. [By Defense Counsel] Is part of your investigation to these requests that the blood alcohol level be done on the decedent plus the urine sample?
“A. [By Coroner Dale Cunningham] Yes, sir, that is true.
“Q. What was the blood alcohol level of the blood sample?
“A. The blood sample was .18 percent ethyl alcohol.
“Q. And how about the urine sample?
“A. It was .24 percent.
“Q. And did you check for other lacerations and scars or anything on the body other than the wounds you talked about?
“MR. GOMANY: [Assistant District Attorney] Objection unless we go into—
“THE COURT: I don’t know what you are talking about.
“MR. JONES: [Defense Counsel] I am talking about three—
“THE COURT: Sustain the objection.
“Q. Did you examine — you testified on direct examination you made a close examination of the decedent’s body after he had been disrobed and cleaned, is that correct?
“A. I was present while this was done, yes, sir.
“Q. Did you notice the arms of the decedent along here? (indicating).
“THE COURT: I sustain the objection, Mr. Jones.
“MR. JONES: Judge, may we make a proffer outside of the presence of the jury?
“THE COURT: At the proper time, I will let you do that, yes, sir.”

Outside the presence of the jury, appellant made the following offer of proof:

“THE COURT: I’m not precluding you from showing reputation.
“MR. GOMANY: Judge, it is my understanding—
“THE COURT: And you wanted to show that he had needle marks on his arms which I am not going to let you show. Was that the other thing you wanted to proffer?
“MR. JONES: The protocol shows that a crystalline in the substance in the lungs that was—
“THE COURT: That shows past drug abuse, I’m not going to let you show that.
“MR. JONES: Well, Judge, I think it would go on a bearing as to whether or not what kind of condition this man was in that night.
“THE COURT: Overruled.”

Appellant argues that evidence of the victim’s drug use, in connection with other evidence that “when drinking or getting high, [the victim] would be violent” was relevant to the issue of self-defense. We accept appellant’s argument as a general proposition, see Long v. State, 23 Ala.App. 107, 121 So. 453 (1929), but we do not believe it is applicable here. For all that appears from appellant’s offer of proof, the needle marks on the victim’s arms and the crystalline substance in the victim’s lungs indicated only past drug abuse, as the trial court pointed out, and did not demonstrate that the victim had been using drugs immediately prior to his death. See Stewart v. State, 29 Ala. 594, 165 So. 840 (1936). Appellant did not seek to introduce any other testimony which would have pointed to recent drug use by the decedent.

It is our judgment, therefore, that the trial court acted to exclude evidence which appeared to be remote. The exclusion of remote evidence is within the discretion of the trial judge, Hembree v. City of Birmingham, Ala.Cr.App., 381 So.2d 664 (1980), and his decision will not be overturned on appeal in the absence of gross abuse. Gamble, McElroy’s Alabama Evidence, § 21.01(2) (3d ed. 1977).

IV

Appellant complains of error in the • trial court’s refusal of eleven written requested jury charges. The court’s oral charge, however, substantially and fairly covered the same rules of law contained in appellant’s requested instructions. The refusal of a charge, even though it is a correct statement of the law, is not error if the same principle is substantially and fairly covered in the court’s oral charge. Ala. Code § 12-16-13 (1975); Turner v. State, Ala.Cr.App., 380 So.2d 393 (1980); Mains v. State, Ala.Cr.App., 375 So.2d 1299 (1979).

We have searched the record for error prejudicial to appellant and have found none; therefore, the judgment of conviction by the Jefferson Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    Ex Parte: James Louis ROBINSON. (Re: James Louis Robinson v. State of Alabama).
    80-825.
    Supreme Court of Alabama.
    Oct. 30, 1981.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


author: BOOKOUT, Judge.

text:
    Gilbert Earl BATES v. STATE.
    3 Div. 315.
    Court of Criminal Appeals of Alabama.
    June 30, 1981.
    Rehearing Denied Aug. 4, 1981.

      Albert L. Roemer, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Marda J. Walters, Asst. Atty. Gen., for ap-pellee.
   BOOKOUT, Judge.

Theft of property in the second degree (violation of Code § 13A-8 — 4(g), theft of livestock); sentence: fifteen years’ imprisonment (habitual offender) and $300 restitution.

I

The appellant contends the evidence was insufficient to connect him with the offense charged. A review of the facts is therefore necessary.

At dusk on February 19, 1980, Lemuel L. Adams drove to his farm in north Montgomery County. On arriving at his pasture Adams said he saw a red and white Dodge pickup truck sitting off the road and on the grass, “right up against my fence.” Simultaneously he saw “two boys” in his pasture who had one of his calves down and appeared to be trying to skin it. A second calf had been shot to death.

When Adams saw what was happening, he shouted “Hey, what y’all doing to my cows?” The two people with the calves ran to the far side of the pasture, and the Dodge truck “took off.” Adams tried to block the truck with his own, but the driver was able to evade him and a chase ensued. Adams pursued the truck until it drove into a gravel pit where the driver abandoned it and ran away. Although Adams could not physically catch the driver, he made a positive identification of the driver as being the appellant.

On cross-examination Adams stated that the appellant later “called me wanting to know if he could pay me without coming to court.” Likewise, on cross-examination and without objection, Adams testified that the truck in question was registered in the appellant’s name. We therefore conclude from the above facts that the State presented evidence from which the jury could infer guilt on the part of the appellant. As we stated in Trussell v. State, 57 Ala.App. 109, 112, 326 So.2d 301 (1976):

“This Court, in testing the sufficiency of the evidence, is not bound as a jury, to believe the evidence beyond a reasonable doubt and to a moral certainty in order to affirm the conviction. Rather, we must determine if there was legal evidence from which the jury could by fair inference find guilt. If so, we have no right to disturb the verdict....” (Citation omitted.)

II

During the State’s case in chief, the following in-custody statement of the appellant was introduced after proper predication and without objection:

“I was fishing on a little old creek on the Lower Road. My truck would not crank when I got ready to leave. I left the truck right there. I walked home. I went back the next morning and my truck was gone. I checked to see if it had been pulled in. I didn’t report the truck stolen because the police had some warrants on me. I didn’t want to go to jail.”

The State then called Lawson E. Hanson, security officer of the Montgomery City Jail, to introduce jail records to show that between the time the truck was abandoned and the instant arrest of the appellant that the appellant had been incarcerated in the city jail on several occasions. The prosecutor argued that the purpose of such evidence was to refute the appellant’s story that he had not reported the truck stolen because he was wanted on some warrants and would go to jail if he reported the alleged theft. Counsel for appellant objected and argued the following grounds:

(1) “I say, Your Honor that the Defendant has the right and privilege against self-incrimination. He has not taken the stand. He has not made any defense at all, and presuming what Mr. Bell does as to what this Defendant’s defense is going to be about the truck, from all that it appears from the evidence so far, the truck could have been — anybody could have had possession of the truck.
“Our defense, as we stated to the Jury, is that this man wasn’t in it. There’s no positive identification of him.”
(2) “Your Honor, they’ll convict him on his record if this is true, three or four times in the city jail, they’ll convict him on that if nothing else. That is prejudicial. They’ll just say he ought to be in jail. Period. And forget it. You see. And he’s entitled to a fair trial and we haven’t put him on the stand.”

Other objections assigning “every ground that I have under the Constitution of the State of Alabama and the United States of America” without enumerating them or specifying a particular ground are general objections. The same is true of an objection to “anything about it, everything about it, and everything connected about it,” and “under every objection we have under the laws and the Constitutions.” A trial court need not cast about for tenable grounds of objection to evidence. Turley v. State, 356 So.2d 1238 (Ala.Cr.App.1978).

As to specific ground (1) above, we are uncertain as to what counsel intended. We are unable to see how the evidence objected to violated the appellant’s privilege against self-incrimination. Certainly the State is free to put on its evidence, including properly predicated extrajudicial statements of an accused, and whether that evidence incriminates the accused or not does not deprive him of exercising his right to remain silent. We see many cases where the State’s evidence overwhelmingly contradicts an exculpatory extrajudicial statement of an accused. This raises only an issue of trial strategy for the accused’s consideration — whether to risk testifying or to remain silent and leave the contradiction unresolved in the minds of the jurors.

Pressures generated by the State’s case may often be severe, but they do not vitiate the accused’s choice to testify or not. In the case where a Florida statute required defendants to disclose alibi witnesses, the United States Supreme Court in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), stated:

“That the defendant faces such a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination....”

We therefore find no error on the part of the trial judge in overruling the instant objection on the ground stated. On appeal the defense is bound by the grounds stated in their objections at trial. Franklin v. State, 357 So.2d 364 (Ala.Cr.App.), cert. denied, 357 So.2d 368 (Ala.1978).

Ground (2), supra, is specific enough to raise the issue of the potential prejudicial effect of showing prior criminal conduct on the part of the appellant not charged in the instant indictment. However, there are several reasons why we believe the trial court did not err in overruling this specific objection.

The general rule is stated in Gamble, McElroy’s Alabama Evidence, (3d ed.) § 69.-01:

“On the trial of a person for the alleged commission of a particular crime, evidence of his doing another act, which itself is a crime, is not admissible if the only probative function of such evidence is to show his bad character....” (Emphasis added.)

We find in the instant case that the jail records were not introduced for the purpose of showing the bad character of the appellant. The records were used to refute the appellant’s statement to the police as to why he did not report the alleged theft of his truck. At first glance it may appear that the State set the stage for introducing apparently improper evidence by injecting the appellant’s alibi statement into the trial and then attempting to refute it with the jail records. If this was so, then reversible error would result. As stated in Dickinson v. State, 228 Ala. 28, 29, 152 So. 29 (1934):

“The state cannot make its own setting for the justification of illegal evidence, so as to permit the contradiction of what it brought out, though on crossexamination of witnesses for defendant.”

However, the instant case is somewhat different than the rule in Dickinson would imply. Here, the State did not bring up the subject in controversy — the defense did. The defense counsel injected the accused’s statement to police into the trial initially. On cross-examination by defense counsel, Sheriff’s Investigator Wayne Ward testified that at 4:10 p. m. on April 25 he arrested the appellant, and the appellant denied any knowledge of the crime and told Ward the truck had been stolen.

The State did not ask witness Wayne Ward a question about the appellant’s statement until after defense counsel brought the issue up and elicited the fact that appellant told Ward that he knew nothing about the crime. It was defense counsel that elicited the fact that the appellant said his truck had been stolen. The prosecutor, on redirect examination, immediately stated: “Well, if we’re going to get into that, do you have the written statement that you took from him?” The proper Miranda and voluntariness predicates were laid, and the statement was put into evidence without objection.

Defense counsel then on recross examination asked if the appellant told Ward he had a warrant out for him in a paternity case. Ward answered that “[h]e told me he had some outstanding warrants, that the city police had some outstanding warrants on him.” The State then called Lawson Hanson and introduced the city jail records in question.

It is clear that defense counsel injected the appellant’s alibi statement into the trial during cross-examination, yet our inquiry does not end by a simple answer to the question, “Who opened the door?” Walker v. State, 358 So.2d 800 (Ala.Cr.App. 1978). Evidence which incidentally shows the admission of some unrelated offense may be introduced where it is relevant to rebut special defenses. Snead v. State, 243 Ala. 23, 8 So.2d 269 (1942). The test for admissibility of such evidence is set out in Snead, supra:

“In all instances, the question is whether the proposed evidence is primarily to prove the commission of another disconnected crime, or whether it is material to some issue in the case. If it is material and logically relevant to an issue in the case, whether to prove an element of the crime, or to controvert a material contention of defendant, it is not inadmissible because in making the proof the commission of an independent disconnected crime is an inseparable feature of it.”

We therefore find no error on the part of the trial court in admitting the jail records to rebut the alibi defense set up in the appellant’s extrajudicial statement which was injected into the trial by defense counsel.

III

Appellant contends that the trial court erred in refusing certain written requested charges to the jury. More particularly he complains that the court should have given his charges relating to “reasonable doubt” arising from a “part of the evidence.”

The Alabama Supreme Court has held it to constitute error to refuse such a charge, if properly phrased, where the subject was not covered in a given charge or in the court’s oral charge. Rakestraw v. State, 211 Ala. 535, 101 So. 181 (1924), followed in Richards v. State, 358 So.2d 488 (Ala.Cr. App.), cert. denied, 358 So.2d 490 (Ala.1978). However, that court has held it not to be error to refuse such a charge where the trial court presents to the jury “a discussion of the reasonable doubt standard as applied to the evidence generally.” Dillard v. State, 371 So.2d 947 (Ala.1979), citing King v. State, 356 So.2d 1220 (Ala.1978). But, on the other hand, this court was recently reversed by the supreme court in Ex parte Hamilton, 396 So.2d 123 (Ala.1981), for relying on Dillard. There the court stated that “reasonable doubt may arise out of only a part of the evidence” and held it to be reversible error for the trial judge to refuse a properly drafted charge setting forth that principle.

In the instant case we find in the trial court’s explanation to the jury of the reasonable doubt standard:

“The term ‘reasonable doubt’ means a doubt which there is some evidence in the case a reason for or the lack of evidence, a doubt which you are able to find in the evidence a reason for, or the lack of such evidence.... ” (Emphasis added.)

By the use of the term “some evidence,” the trial judge in effect charged on “part” of the evidence because “some” refers to less than the whole. Our finding here may best be summed up by a quote from King, supra, at 1222: “It thus appears that the jury was instructed that a reasonable doubt may arise from some of the evidence when considered with the whole of it.” (Emphasis added.)

The other refused charges were either affirmative, or covered in the court’s oral charge, or used the wrong gender “her” or “she” rather than “him” or “he.” Blalock v. State, 369 So.2d 35 (Ala.Cr.App.), cert. denied, 369 So.2d 38 (Ala.1979).

IV

At the sentencing hearing the appellant challenged his treatment under the habitual offender statute (Code § 13A-5-9 et seq.) on the ground that he was never indicted as a habitual offender. He likewise contended that where a person is “convicted on the same day for a series of crimes ... that’s generally considered as one offense.” Those issues have been decided adversely to the appellant’s position in Watson v. State, 392 So.2d 1274 (Ala.Cr.App.), cert. denied, 392 So.2d 1280 (Ala.1981), and in Holley v. State, 397 So.2d 211 (Ala.Cr.App.), cert. denied, 397 So.2d 217 (Ala.1981).

AFFIRMED.

All the Judges concur.


author: ADAMS, Justice.

text:
    Ex parte Gilbert Earl BATES. (Re: Gilbert Earl Bates v. State of Alabama).
    80-785.
    Supreme Court of Alabama.
    Oct. 30, 1981.
   ADAMS, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and FAULKNER, AL-MON, and EMBRY, JJ., concur.


author:
BARKDULL, Judge.
      BASKIN, Judge

text:
    CORSA BOATS, INC., a Florida corporation; Frank Thomas, individually, and Frank Thomas d/b/a B & B Marine, Appellants, v. SUN BANK OF MIAMI, Appellee.
    No. 80-1258.
    District Court of Appeal of Florida, Third District.
    May 12, 1981.
    Rehearing Denied Oct. 27, 1981.
    David A. Hoines and Sharon M. Sabel, Fort Lauderdale, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and C. Douglas Skinner and John Strickroot, Miami, for appellee.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   BARKDULL, Judge.

Sun Bank of Miami brought an action to replevy a boat which was pledged to the Bank as collateral for a loan to its titled owner, Thomas P. Murphy, Jr.

The appellants manufactured the boat and, at all times pertinent, maintained possession of it and contended that they had a possessory lien superior to the Bank’s security interest. The trial court disagreed and entered a summary judgment for the Bank. We affirm.

Frank Thomas, the sole stockholder and president of Corsa Boats, Inc. at the time of the loan transaction, testified on deposition that he executed a title registration on behalf of the corporation which indicated that the vessel was transferred to the purchaser (Murphy) free and clear of any and all liens. By this action, he placed in commerce a title document or registration which permitted Murphy to borrow the funds from the Bank. In Southeast Foods, Inc. v. Penguin Frozen Foods, 203 So.2d 39 (Fla. 3d DCA 1967), the following is found:

“. .. Where one of two innocent parties must suffer through the act or negligence of a third person, the loss should fall upon the one who by his conduct created the circumstances which enabled the third party to perpetrate the wrong or cause the loss. American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116, 47 So. 942....”

See also: Baader v. Walker, 153 So.2d 51 (Fla. 2d DCA 1963); Harmony Homes, Inc. v. Zeit, 260 So.2d 218 (Fla. 1st DCA 1972); Exchange Bank of St. Augustine v. Florida National Bank of Jacksonville, 292 So.2d 361 (Fla.1974).

In view of the foregoing, the appellants are estopped from claiming a right superior to the appellee. Therefore, the judgment here under review is hereby affirmed.

Affirmed.

BASKIN, Judge

(dissenting).

Appellants contend that because they are in possession of the boat, their liens for costs in connection with its manufacture are superior to the bank’s perfected security lien. They rely on section 679.310, Florida Statutes (1977) as authority:

Priority of certain liens arising by operation of law. — When a person in the ordinary course of his business furnishes services or materials with respect to goods subject to a security interest, a lien upon goods in the possession of such person given by statute or rule of law for such materials or services takes priority over a perfected security interest unless the lien is statutory and the statute expressly provides otherwise.

In its Order Granting Summary Judgment, the trial court stated:

(14) The Court finds that the Defendants have a possessory lien on the White Hull by virtue of Florida Statute §§ 713.60, 713.61 or 713.62, but rejects Defendants’ contention that such possessory lien is superior to that of Sun Bank pursuant to Florida Statute § 679.310.

The bank did not cross-appeal the finding by the court that appellants have a posses-sory lien.

An unrecorded possessory lien is superior to a recorded security interest. Eastern Airlines Employees Federal Credit Union v. Lauderdale Yacht Basin, Inc., 334 So.2d 175 (Fla. 4th DCA 1976); Carolina Aircraft Corp. v. Commerce Trust Co., 289 So.2d 37 (Fla. 4th DCA 1974); Gables Lincoln-Mercury, Inc. v. First Bank & Trust Co. of Boca Raton, 219 So.2d 90 (Fla. 3d DCA 1969); § 679.310, Fla.Stat. (1977). Title does not control. See the Uniform Commercial Code Comment to enactment of section 679.310, Fla.Stat.Ann. (1966). I would therefore reverse and remand for further proceedings.


author: BARKDULL, Judge.

text:
    Darrell BRYANT, as father and next friend of Latarsha Bryant and Darneisha Bryant, Minors, and Darrell Bryant, individually and Sandra Bryant, individually, Appellants, v. Ronald FIADINI and Old Republic Insurance Company, Appellees.
    Nos. 80-913, 80-2087.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.

      Alldredge & Gray, Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel D. Eaton, Joe N. Unger, Miami, for appellants.
    Greene & Cooper and Joan M. Bolotin, Pyszka & Kessler, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   BARKDULL, Judge.

The appellants, plaintiffs in the trial court, and their four small children together with the wife’s brother and mother-in-law were (on November 29,1974) occupying a one bedroom apartment in Hialeah, Florida, located on the ground floor of a building built in 1925 and owned by the appellee Fiandini, defendant in the trial court. A diagram representing the layout of the apartment is included as footnote 2. The apartment had two doors, as shown in the layout; the door opposite the kitchen was locked. The mother and brother-in-law were using the living room for sleeping quarters; the plaintiffs were using the bedroom along with their four children. A portable heater was in operation in the living room near the cot upon which the brother-in-law was sleeping. The close proximity of the cot to the heater caused the bed linens to catch fire at approximately 4:30 A.M. The father was awakened by his mother calling his name. He arose and went into the living room where he observed flames. He directed his mother and brother-in-law to return with him to the bedroom. He closed the door leading to the hall. He then proceeded to kick out a jalousie window and removed himself and the oldest child. Standing outside, he assisted his mother, his wife, and his wife’s brother to exit in that order. At this time the bedroom was full of smoke but no fire.

After exiting the building in approximately three or four minutes, the local fire units arrived, at which time the plaintiffs and their relatives along with one of their children, were standing about outside the building. Upon learning that the remaining children were still in the apartment, firemen attempted to rescue them. They successfully removed two children and were about to remove the last child through the window, but unfortunately by the time the child was removed he (or she) had expired due to heat and smoke inhalation.

Thereafter the plaintiffs instituted an action sounding in negligence against the defendants. The defendants filed an answer, which raised the issue of comparative negligence of the plaintiffs. At time of trial, the plaintiffs introduced into evidence the Metropolitan Fire Code and, at the time of the charge conference, they requested a charge that a violation of this Code would constitute negligence per se. At the time of the charge conference, the defendants withdrew the defense of comparative negligence and requested and received a ruling from the trial judge that no instruction on comparative negligence would be given. The jury returned a verdict for the defendants. This appeal ensued.

The points on appeal are: the trial court erred in permitting the withdrawal of the comparative negligence defense and in refusing to instruct on comparative negligence, and in refusing to instruct that a violation of the fire code constituted negligence per se. We affirm.

A defendant has a right to waive any defense. Compare: Kilpatrick v. McLouth, 392 So.2d 985 (Fla. 5th DCA 1981); Thomas N. Carlton Estate, Inc. v. Keller, 52 So.2d 131 (Fla.1951); Gilman v. Butzloff, 155 Fla. 888, 22 So.2d 263 (1945); 22 Fla.Jur.2d, Estoppel and Waiver, § 87; Fla.RiCiv.P. 1.140(h). Comparative negligence only has the effect of reducing damages if liability is established. We find no error in refusing to charge on comparative negligence but even if it was, it was harmless error because the jury found no liability. McArthur v. St. Louis-San Francisco Railway Company, 306 So.2d 575 (Fla. 1st DCA 1975); Jones v. Atlantic Coast Line Railroad Company, 117 So.2d 234 (Fla. 2d DCA 1960); Fain v. Cartwright, 132 Fla. 855, 182 So. 302 (1938); Murden v. Miami Poultry & Egg Co., 113 Fla. 870, 152 So. 714 (1934). As the Supreme Court so succinctly stated in Murden v. Miami Poultry & Egg Co., supra:

“It appears from a consideration of the entire record, however, that the judgment should not be reversed because of the erroneous charges because the rule is well settled that where evidence in a law case discloses no liability, there can be no recovery and a verdict for the defendant in such cases must stand.”

This is particularly true in the instant case where defense counsel argued to the jury that if it returned a plaintiff’s verdict it should award them 100% of the damages.

We find no error in refusing to charge on the fire code. First, because by its terms it is not applicable to an apartment constructed in 1925. Second, even if it was applicable, the apartment had one operable exit which was all that was required in an apartment of the size occupied by the plaintiffs. Lastly, the trial court, in effect, did charge that the jury could consider a violation of the code if evidence of negligence was established.

It was within the province of the jury to find that the negligence of the adults was the sole proximate cause of the injuries of the children. Groves v. Leo, 367 So.2d 1031 (Fla. 4th DCA 1979); Helman v. Seaboard Coast Line Railroad Company, 349 So.2d 1187 (Fla.1977); Loftin v. Wilson, 67 So.2d 185 (Fla.1953). It was also within the province of the jury to find that the defendants were not guilty of any negligence. Groves v. Leo, supra; Hoffman v. Jones, 280 So.2d 431 (Fla.1973); Jones v. Atlantic Coast Line Railroad Company, supra.

Therefore, the final judgment rendered on the verdict be and the same is hereby affirmed.

Affirmed.

      . The Bryants had four children. Three of the children were girls ages 2 years, 1 year, and one month. The one-year-old and the one-month-old were injured in the fire. The record does not reveal the sex of the deceased child, but he or she was one month old. The complaint filed herein did not seek recovery for the deceased child.

      .
      Escape Window

      . The heater was a small open-faced electric heater. The electric heating elements were protected by a metal grill, which had a square design. The heater was thermostatically controlled

      . The record herein clearly reflects that the Dade County Building Code requires that an apartment of the size involved in the instant case have only one exit or entrance.

      . “Violation of the Metropolitan Dade County Fire Prevention Safety Code is negligence. If you find that a person alleged to have been negligent violated the code, such person was negligent, you should then determine whether such negligence was a legal cause of loss, injury or damage complained of.”


author: PER CURIAM.

text:
    Raymond FREDERICK a/k/a Billy Fedrick, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1153.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.
    Bennett H. Brummer, Public Defender, and John H. Lipinski, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

We reverse the judgment and sentence imposed in Circuit Court Case No. 76-2390 with directions to vacate on a holding that (1) the defendant’s two-year probationary term in Case No. 76-2390 expired well before the violations of probation occurred and rendered the judgment and sentence imposed on the defendant for such violations a nullity, see Peyton v. State, 383 So.2d 737, 738 n.2 (Fla.3d DCA 1980); (2) the trial court’s subsequent sua spohte order which purported to modify the defendant’s probationary term, which the defendant had begun serving, by postponing its effective date (a) unlawfully subjected the defendant to increased punishment for the same offense, Troupe v. Rowe, 283 So.2d 857 (Fla.1973), and (b) alternatively, was an unauthorized extension of the defendant’s probation, see Section 948.06, Florida Statutes (1979); Smith v. State, 377 So.2d 250 (Fla.3d DCA 1979); Patrick v. State, 336 So.2d 1253 (Fla. 1st DCA 1976).

The defendant’s appeals from the judgments and sentences imposed in all cases except Circuit Court Case No. 76-2390 are affirmed.

Affirmed in part; reversed in part, with directions to vacate the judgment and sentence imposed in Circuit Court Case No. 76-2390.


author: FERGUSON, Judge. JORGENSON, Judge,

text:
    B. C. BUILDERS SUPPLY CO., INC., Appellant, v. Leonard MALDONADO and Yolanda Maldonado, his wife, Appellees.
    No. 81-1244.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 1981.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for appellant.
    Genden & Bach and Michael A. Genden, Miami, for appellees.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   FERGUSON, Judge.

B. C. Builders Supply Co., Inc. appeals from a non-final order denying its motion to vacate a default. The issue is whether the trial court grossly abused its discretion in failing to set aside the default. We reverse.

Appellees, Leonardo and Yolando Maldonado filed suit against B. C. Builders and the Union Fork & Hoe Company alleging that a defective wheelbarrow tire manufactured by Union Fork and sold to appellees by B. C. Builders exploded causing them personal injury. On Friday, February 20, 1981, Bernard Chaney, President of B. C. Builders, was personally served with process. A response was required by March 12, 1981. Mr. Chaney immediately called the co-defendant, Union Fork & Hoe and was advised that it appeared that Liberty Mutual Insurance Co. should provide a defense for B. C. Builders which was an unnamed insured entitled to coverage under the vendor’s endorsement clause on the policy issued to Union Fork & Hoe Company by Liberty Mutual. On Monday, February 23, 1981, Mr. Chaney hand-delivered the suit papers to the Miami claims office of Liberty Mutual. B. C. Builders had no further contact with Liberty Mutual or with the litigation until it received a copy of the default on March 17, 1981.

Affidavits filed by B. C. Builders in its motion to set aside the default set forth these additional facts. At the time the Miami office of Liberty Mutual received the suit papers from B. C. Builders Supply Co., Liberty Mutual did not know that B. C. Builders was entitled to coverage under the policy issued to Union Fork & Hoe Company. The responsive pleadings for Union Fork & Hoe Company were due March 16, 1981. On March 2,1981 the claims supervisor, Mr. Hajas, was instructed to seek an extension of time for both Union Fork and for B. C. Builders, but Mr. Hajas mistakenly requested an extension for only Union Fork & Hoe. On March 11,1981, Mr. Hajas realized his mistake and called the Maldona-dos’ attorney, Mr. Genden, to advise him that a twenty-day extension was requested for B. C. Builders as well. Mr. Genden was unavailable and a telephone message was left requesting a return call. The call was returned, but Mr. Hajas was away. Later the same day Mr. Hajas again called Mr. Genden, who was out. Mr. Hajas left a message with Mr. Genden’s office that Liberty Mutual would be providing the defense for B. C. Builders. Mr. Hajas believed that this notification was sufficient; that since Mr. Genden now knew that Liberty Mutual was providing a defense for both defendants, the twenty-day extension granted to Union Fork & Hoe would also be granted for B. C. Builders. On March 27, 1981, Mr. Genden called Mr. Hajas and informed him that he had caused a default to be entered against B. C. Builders Supply Co., Inc. on March 17,1981. That same day a law firm was retained to represent both the Union Fork Company and B. C. Builders, however, upon recommendation of that firm B. C. Builders retained separate counsel. Three days after such counsel was retained and four days after the notice of default had been received, B. C. Builders filed their motion to set aside the default incorporating affidavits and an answer.

The court in Garcia Insurance Agency, Inc. v. Diaz, 351 So.2d 1137 (Fla.2d DCA 1977), stated the role of the appellate court in determining whether the trial court erred in ruling on a motion to vacate as follows:

Our task is to successfully combine two deeply held propositions under Florida law: that there exists a “long standing policy of liberality toward vacating of defaults” — North Shore Hospital, Inc. v. Barber, 143 So.2d 849, 852 (Fla.1962); and, that “a showing of gross abuse of a trial court’s discretion is necessary on appeal to justify reversal of the lower court’s ruling on a motion to vacate [a default].” [North Shore Hospital, Inc. v.] Barber, at 852.

See also County National Bank of North Miami Beach v. Sheridan, Inc., 403 So.2d 502 (Fla. 4th DCA 1981) (1981). The task of this court in deciding whether the trial court has grossly abused its discretion in denying a motion to vacate default, as the cases suggest, is to determine whether the same result would have reasonably obtained if the long standing policy of liberality had been applied. That policy, however, does have judicable bounds. The trial court must determine whether the defendant demonstrated that his neglect to respond was excusable and that he had a meritorious defense. As an additional factor in determining whether the neglect was excusable the court may consider whether the defendant subsequently demonstrated due diligence in seeking relief upon learning of

the default. See, e. g., Chamberlin v. Mid-Century Insurance Co., 350 So.2d 364 (Fla.2d DCA 1977) (subsequent delay factor in affirming trial court). We believe that this standard as first enunciated by the Supreme Court of Florida in Russ v. Gilbert, 19 Fla. 54, 57 (1882), cited by the court in Coggin v. Barfield, 150 Fla. 551, 8 So.2d 9 (1942), has been consistently followed by Florida courts, i. e., that “it would be a gross abuse of discretion not to allow a defendant to present his defense if he had a meritorious one, was innocent of culpable negligence and willing to plead and to go to trial without delay.” Id. 150 Fla. 554, 8 So.2d 11. See Sterling Drug, Inc. v. Wright, 342 So.2d 503 (Fla.1977); North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); Waterson v. Seat and Crawford, 10 Fla. 326 (1863); County National Bank of North Miami Beach v. Sheridan, Inc., supra; Pedro Realty Inc. v. Silva, 399 So.2d 367 (Fla.3d DCA 1981); Dunn v. JoAnn Taube Realty, Inc., 399 So.2d 63 (Fla.3d DCA 1981); Thomas v. American Vinyl Co., 379 So.2d 448 (Fla.3d DCA 1980); McAlice v. Kirsch, 368 So.2d 401 (Fla.3d DCA 1979); Salomon v. Mid-States Mortgage Corp., 356 So.2d 915 (Fla.3d DCA 1978); Garcia Insurance Agency, Inc. v. Diaz, supra; Traveler’s Insurance Co. v. Bryson, 341 So.2d 1013 (Fla. 4th DCA 1977); Flaxman v. Metropolitan Life Insurance Co., 340 So.2d 515 (Fla.3d DCA 1976); Associated Medical Institutions, Inc. v. Imperatori, 338 So.2d 74 (Fla.3d DCA 1976); Espinosa v. Racki, 324 So.2d 105 (Fla.3d DCA 1975); Plotkin v. Deatrick Leasing Co., 267 So.2d 368 (Fla.3d DCA 1972); Renuart-Bailey-Cheely Lumber and Supply Co. v. Hall, 264 So.2d 84 (Fla.3d DCA 1972).

We also agree with the court in Garcia Insurance Agency, Inc. v. Diaz, supra, that the principle of liberality places a heavier burden on the party seeking to reverse an order granting a motion to vacate default, than on a party seeking to reverse an order denying the motion. Compare North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962) (misplacing of complaint by administrative office excusable where immediate action followed discovery of mistake) with Bailey v. Deebold, 351 So.2d 355 (Fla.2d DCA 1977), cert. denied, 359 So.2d 1213 (Fla.1978) (motion to vacate not made within one year and not until subsequent entry of final judgment, two separate garnishment judgments and institution of separate creditor’s complaint). The true purpose of the entry of a default is to speed the cause thereby preventing a dilatory or procrastinating defendant from impeding the plaintiff in the establishment of his claim. It is not procedure intended to furnish an advantage to the plaintiff so that a defense may be defeated or a judgment reached without the difficulty that arises from a contest by the defendant. Coggin v. Barfield, supra.

The requirement that the defendant demonstrate excusable neglect requires more than a conclusionary statement. A party moving to vacate a default must set forth facts explaining or justifying the mistake or inadvertence by affidavit or other sworn statement, see Caribbean Agencies, Inc. v. Agri-Export, Inc., 384 So.2d 281 (Fla. 4th DCA 1981), Hersey J. specially concurring, and failure to do so will prevent the appellate court from finding a gross abuse of discretion, see Farish v. Lum’s Inc., 267 So.2d 325 (Fla.1972) (party failed to sign on sworn response, no excuse for non-compliance with rule); Benedict v. W. T. Hadlow Co., 52 Fla. 188, 42 So. 239 (1906); Acme Fast Freight, Inc. v. Bell, 318 So.2d 212 (Fla.3d DCA 1975) (no explanation in affidavit of why defendant failed to receive summons and complaint); Gacl, Inc. v. Zeger, 276 So.2d 552 (Fla.3d DCA 1973). Cf. Flaxman v. Metropolitan Life Insurance Co., 340 So.2d 515 (Fla.3d DCA 1976) (a defendant explained loss of summons and complaint in affidavit of good defense). A meritorious defense may be shown by either a pleading or affidavit. See, e. g., Pedro Realty Inc. v. Silva, supra.

The facts of each case are of singular importance in determining whether or not relief should be granted. Edwards v. City of Fort Walton Beach, 271 So.2d 136 (Fla.1972); Cricket Club, Inc. v. Basso, 384 So.2d 908 (Fla.3d DCA 1980) (oversight by agent responsible for signing and forwarding all summons and complaints not excusable); Schwab & Co., Inc. v. Breezy Bay, Inc., 360 So.2d 117 (Fla.3d DCA 1978) (reduction of complaint and summons to letter size not grounds for excusable neglect). In this case, B. C. Builders acted promptly and diligently to set aside the default and attached to the motion affidavits sitting forth facts explaining the neglect to file responsive pleadings and an answer setting forth affirmative defenses. We believe that the facts clearly demonstrate excusable neglect. Applying the policy of liberality toward vacating of defaults and allowing trial upon the merits which has been established in our Florida jurisprudence for over a century, we hold that the trial court grossly abused its discretion in failing to set aside the default.

Reversed and remanded for proceedings consistent with this opinion.

JORGENSON, Judge,

dissenting.

I respectfully dissent.

The delay occasioned in this cause is a direct result of a conflict between B. C. Builders Supply Company and Liberty Mutual. Recognizing that there are instances where, as a matter of law, defaults should be set aside, nevertheless, the trial court must be affirmed, absent a gross abuse of discretion. North Shore Hospital, Inc. v. Barber, 143 So.2d 849, 852 (Fla.1962). The record here does not support reversal. Clearly, the policy toward liberality of vacation of defaults ought not to operate when the basis for the default is a disputed insurance coverage issue. Farish v. Lum’s, Inc., 267 So.2d 325 (Fla.1972); Schwab & Co., Inc. v. Breezy Bay, Inc., 360 So.2d 117 (Fla.3d DCA 1978).

In any event, it is the duty of the trial court, not the appellate court, to make the determination of whether or not the facts constitute excusable neglect, mistake or inadvertence sufficient to excuse compliance with procedural rules. Farish v. Lum’s, Inc., supra, at 328 (emphasis added); Allen v. Wright, 350 So.2d 111 (Fla. 1st DCA 1977); Schwab & Co., Inc. v. Breezy Bay, Inc., supra.

I would affirm.

      . We have jurisdiction pursuant to Fla.R. App.P. 9.130(a)(3)(C)(iv) and Pedro Realty, Inc. v. Silva, 392 So.2d 1005 (Fla.3d DCA 1981), supreme court review granted, Case No. 60,-396. Contra, Sunny South Aircraft Service, Inc. v. Inversiones, 402 So.2d 555 (Fla. 4th DCA 1981) (certifying conflict).


author: LETTS, Chief Judge.

text:
    Jeffrey SAPP, Appellant, v. STATE of Florida, Appellee.
    No. 80-1676.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.
    Motion to Certify Question to the Supreme Court Denied Dec. 9, 1981.
    Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Chief Judge.

This cause is affirmed upon the authority of James v. State, 393 So.2d 1138 (Fla. 3d DCA 1981) and Lewis v. State, 399 So.2d 473 (Fla. 4th DCA, 1981).

However, the cause is remanded for re-sentencing in accordance with State v. Goodson, 403 So.2d 1337 (Fla. 1981) .

BERANEK, J., and OWEN, WILLIAM C., Jr., Associate Judge (Retired), concur.


author: PER CURIAM. SCHWARTZ, Judge

text:
    NORTH BROWARD HOSPITAL DISTRICT, Mary Duffy, C.R.N.A., Timothy Sharpe, M.D., Alan Wayne Black, M.D., Miguel Gonzalez, M.D., Jackson Memorial Hospital, d/b/a Dade County Public Health Trust and University of Miami School of Medicine, Appellants, v. Michael C. ENDE, as Personal Representative of the Estate of Susan K. Ende, deceased; Michael C. Ende, as Personal Representative of the Estate of Baby Girl Ende, deceased, Appellees.
    No. 81-1827.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 1981.
    Carey, Dwyer, Cole, Selwood & Bernard and Michael C. Spring, Miami, for appellants.
    Sams, Gerstein & Ward and Walter C. Ward, for appellees.
    Before SCHWARTZ, NESBITT, and JORGENSON, JJ.
   PER CURIAM.

Affirmed.

SCHWARTZ, Judge

(dissenting).

In my judgment, the trial court abused its discretion in denying the defendants’ motion to transfer this cause to Broward County under the forum non conveniens statute, Section 47.122, Florida Statutes (1979). Kelly-Springfield Tire Co. v. Moore, 355 So.2d 451 (Fla. 3d DCA 1978); see Della-Donna v. Gore Newspaper Co., 390 So.2d 87 (Fla. 3d DCA 1980), review denied, 399 So.2d 1141 (Fla. 1981), and cases cited. I would therefore reverse the order under review.


author: DOWNEY, Judge.

text:
    John Andrew McAFEE, Appellant, v. STATE of Florida, Appellee.
    No. 80-1440.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1981.
    Rehearing Denied Dec. 16, 1981.
    Kenneth G. Spillias of Spillias & Mitchell, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

This case involves an appeal from a judgment of guilty of sexual battery entered pursuant to a jury verdict and from a sentence of 30 years.

We have considered appellant’s three points on appeal and found possible merit in only one of said points, that having to do with suggested error in the failure of the trial court to consider probation as an alternative sanction to sentencing appellant to a 30 year term of imprisonment. Since the transcript was not clear on whether the trial court fully understood and considered the alternatives available to him, we remanded the cause to the trial court to determine whether he had considered the alternative of placing appellant on probation, as allowed by Roberts v. State, 335 So.2d 285 (Fla.1976), and Berezovsky v. State, 350 So.2d 80 (Fla.1977). The trial court has entered a written order stating that: (a) he was fully familiar with the alternative of probation at the time that he sentenced appellant; (b) such alternative was considered by him; and (c) he did not feel probation was appropriate in this case.

Having fully considered all of appellant’s points and arguments and having found no error demonstrated, we affirm the judgment and sentence appealed from.

ANSTEAD and HURLEY, JJ., concur.


author: PER CURIAM. COWART, Judge, COBB, Judge,

text:
    Johnny Tyrone McCAULEY, Appellant, v. STATE of Florida, Appellee.
    Nos. 80-1200, 80-1332.
    District Court of Appeal of Florida, Fifth District.
    Nov. 18, 1981.

      James B. Gibson, Public Defender, and Thomas R. Mott, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

Appellant McCauley was charged and convicted of second degree murder. The only issue requiring discussion is whether the trial court erred in denying appellant’s motion for judgment of acquittal at the conclusion of the State’s case. We have carefully considered the record and find that the evidence at the close of the State’s case was reasonably susceptible of two different views: that the appellant’s action in shooting the deceased was justifiable self-defense or that such action evinced a depraved mind without proper regard for the life of the deceased. Therefore the trial judge properly submitted the ease to the jury who determined the disputed question of fact against the appellant.

AFFIRMED.

ORFINGER and COWART, JJ., concur.

COWART, J., concurs specially with opinion.

COBB, J., dissents with opinion.

COWART, Judge,

concurring specially:

“In law, what plea so tainted and corrupt but, being seasoned with a gracious voice, Obscures the show of evil?”

Shakespeare, Merchant of Venice, Act.

Ill, Scene II, Line 74.

McCauley was charged with second degree murder, defined as killing another “by any act imminently dangerous to another and evincing a depraved mind regardless of human life.” § 782.04(2), Fla.Stat. (1979). The dissent would hold that the State did not establish “Johnny Boy” McCauley’s “depraved mind” at the time of the shooting beyond a reasonable doubt or, alternatively, that self-defense as a matter of law was established in the State’s case.

For all the frills the basic facts are an old story: Two men and one woman; Skit had her first and Johnny Boy beat his time with her. Trouble and threats. Johnny Boy carried his pistol to a party. Skit wanted to talk to Debbie, but Debbie didn’t want to talk to Skit anymore. Johnny Boy “walked around the car to where Skit was.” They had “words” and, suddenly and without warning, Johnny Boy shot Skit dead in the head. Of course, Debbie and her girl friend Josa view the facts favorable to Johnny Boy. They all now believe Skit was “reaching,” but Skit was not reaching — he had nothing to reach for — he was unarmed. He cannot testify, but the facts themselves speak.

The jury’s task was to determine whether Johnny Boy’s act in killing Skit evinced an evil and morally debased (corrupt), hence depraved, mind. In doing so, as with any question of fact, the jury had a right to, and apparently did, disbelieve and disregard McCauley’s testimony that he thought Skit was “reaching.” There was sufficient other evidence, including evidence of McCauley’s ill feelings toward Skit and his preparation for the encounter, from which the jury could properly find McCauley guilty of second degree murder.

McCauley’s self-defense claim was likewise properly submitted to the jury. Self-defense is an affirmative defense and the State has no burden to anticipate and negative it in its case in chief. Involving as it does intricate finding of facts and numerous conclusions, the question of self-defense, with its inherent problems involving judgment and credibility decisions based on common sense and experience and the weighing of evidence, is peculiarly a function of the jury. The dissent cites no Florida case, and research reveals none, where an appellate court has analyzed and weighed the facts and circumstances, overruled a jury determination to the contrary, and held that the facts constituted self-defense as a matter of law. To put Johnny Boy back on the street would require a deviation from well established law and would create a most remarkable and dangerous precedent. In criminal cases trial courts routinely acquit for insufficiency of evidence but it is quite another thing to acquit for a sufficiency of evidence as to an affirmative defense because under such a practice when the trial court errs in favor of the accused the State has no appeal and an anxious citizenry is deprived of its right, as a jury, to express a community attitude toward the reckless, irresponsible and lawless use of a handgun when it is urged as a defense to a criminal act.

The real issue was the state of mind of Johnny Boy when he pulled the trigger. Under all the circumstances did his act which killed Skit evince an evil and morally debased (depraved) mind, or did he truly act out of an innocent, unavoidable and forced necessity and, therefore, in self-defense? The jury, as is their duty and function, answered that question. The dissent is so engrossed and enthralled with the colorful details and life styles that it would overrule the jury and hold, as a matter of law, that the jury erred in determining the ultimate facts, including the state of mind of the accused. There was sufficient evidence on all issues to justify their submission to the jury and this appellate court should not now hold, as a matter of law, that the jury erred in its determination or that the trial court erred in permitting the jury to weigh the facts and circumstances in the case and answer this question.

COBB, Judge,

dissenting.

I dissent.

The defendant, Johnny Tyrone McCauley, was arrested on October 22, 1979, as the result of shooting and killing one William “Skit” Johnson shortly after midnight on that date. The state filed an information charging that McCauley “did, in violation of Florida Statute 782.04, by an act imminently dangerous to another, and evincing a depraved mind regardless of human life, ... murder William Johnson by shooting (him) with a handgun.”

McCauley was convicted as charged after jury trial and appeals that judgment and sentence. The question we consider is whether the trial court erred in denying the defendant’s motion for judgment of acquittal at the conclusion of the state’s case.

In his opening statement, the prosecutor said:

I believe there will be testimony in this courtroom to the effect that just prior to the shooting of Skit Johnson that he reached behind his back, and I believe in the statement that Johnny McCauley made to the police, you’re going to hear it was Johnny McCauley’s belief that Skit had a gun or weapon of some sort, and that he was acting in self defense when he killed Skit Johnson.

The prosecutor knew this in advance because, as it turned out, that was the uncon-troverted testimony of the state’s witnesses to the shooting. As the prosecutor told the jury, “Josa Sanchez and Debbie Donaldson are the only ones (other than the defendant) that really had an opportunity up close to see what occurred.”

The state then called these two eyewitnesses, together with ten other witnesses, to establish various elements of proof, and read McCauley’s statement. The state then rested, and the defense moved for acquittal. As it weighed that motion, the trial court had before it the following evidence:

I. THE TESTIMONY OF DEBBIE DONALDSON

Debbie Donaldson testified that she had met Johnson and had a sexual relationship with him in the Fall of 1978. Soon after Debbie first met Skit, he shot at her then boyfriend, whose name was Victor, at her father’s house. Later, he threatened her with a large handgun in Tampa. In early 1979 she transferred her affections to McCauley. Although Johnson and McCau-ley previously had been friends, by August, 1979, Skit had developed a hatred for McCauley and told Debbie not to see him. In late August, 1979, Skit beat Debbie and threatened to “mess up her face” if she continued to be friends with Johnny, who was “no good.” These threats were conveyed to Johnny by Debbie and her sister.

Between the first altercation in August and the shooting in October, Debbie called the police four or five times a week because of Skit’s harassment, manifested by uninvited visits to her house and repeated threats to mess up her face and to kill Johnny. During the course of Skit’s numerous threats of physical damage to Debbie and death to McCauley, Skit repeatedly boasted to Debbie that he had been a trained killer in the service. Some of these threats were in the presence of Debbie’s sister, Lee Price. Some two to three weeks before the fatal shooting, Debbie saw Skit carrying a gun at a party and at that time he said he wanted to kill Johnny. Debbie told Johnny McCauley several times of Skit’s threats to kill him.

On the night of October 8th, Skit came to Debbie’s house and broke her window by striking it with a pistol. Two police officers were called to the scene, and while they were there a telephone conversation ensued between Debbie and Johnny, who were on phones in her house, and Skit, who was calling from an outside phone. One of the police officers was on another extension in the house. During this conversation, Skit told Johnny that he had his “piece” and Johnny had his “piece” so they should “meet somewhere and get it over with.” Skit said he was at a Texaco station and invited McCauley to meet him there and settle it. McCauley, instead, offered to fight Skit “fair,” which Debbie understood to mean with bare hands.

On the evening in question, Donaldson got to the party on Ivy Lane about 11:00 P.M. with her friend, Josa Sanchez. She had no plans to meet either Johnson or McCauley at the party. She danced with McCauley and observed him carrying a leather bag, which he had with him every time she saw him. Previously, she had seen inside the bag and saw a leather pouch containing a wallet. When the party was over and she walked outside, she encountered Skit who approached her and wanted to talk to her. She declined, and Skit grabbed her and shook her. He previously had “thrown me around and broke out my window at my house,” according to Donaldson. Skit then walked down Ivy Lane to where Debbie’s car was parked ahead of her. She observed no weapon on him. He was wearing a tee shirt and slacks. Debbie asked Josa to leave with her, but Josa hung back because of Skit. When Debbie reached the driver’s side of the car, where Skit was waiting, he proceeded to sling her around. He stated he was going to kill Johnny. She did not think Johnny heard this threat. Johnny and Josa, who followed a short distance behind Debbie and close enough to hear a man’s speaking voice, walked up to the passenger side of the car; Josa told Skit to leave Debbie alone, but he continued pushing her around. Johnny told Skit to leave her alone, and walked around the car to where Skit was, and they “said words back and forth.” At this time, Debbie could not see McCauley’s hands. Debbie began to get in the open door of her car. She heard Skit say, “You don’t have anything to do with this,” and, as he said this, she saw him reach for his back pocket. Then she heard the shot. She then saw Skit fall to the ground.

The words Debbie heard McCauley say to Johnson immediately prior to the shooting were: “Why don’t you leave her alone? You know she doesn’t want to talk to you.” Whereupon, Skit said, “You don’t have anything to do with this,” and reached behind his back. Debbie did not see the gun, either before or after the shooting. Debbie screamed and jumped up out of the car. Johnny walked around the car, got in the passenger’s side, and told her to get in and take him to the police station.

After the shooting, Johnny got in Debbie’s car and told her they were going to the police station, and for her to tell the truth. She drove the car back to the yard where the party had been going on. Johnny got out to get Josa, who had run back to the party, then the three of them drove to the police station. Johnny told them to tell the truth. Debbie testified that she had never heard McCauley express any hostility toward Johnson.

II. THE TESTIMONY OF JOSA SANCHEZ

Josa Sanchez knew McCauley and Johnson casually. She was a good friend of Debbie Donaldson, with whom she attended the Sunday night party at the house on Ivy Lane. She was seven and one-half months pregnant at the time. Josa was afraid of Skit Johnson because of his constant harassment of Debbie during the preceding months before the shooting. From what Debbie had been telling her, Josa was concerned that Skit was going to kill Debbie or Johnny or both.

Johnny McCauley and Skit Johnson were both at the party. McCauley was carrying a brown pouch. Johnson was wearing jeans with a jersey which hung over the outside. As they were getting ready to leave she saw Skit grab Debbie by the arm outside the house and try to talk to her, heard Debbie tell him to leave her alone, and saw Skit walk down the road toward the car. Josa was afraid to walk to the car with Debbie because of the way Skit was acting. Josa thereupon asked Johnny McCauley to walk to the car with her. They followed Debbie down the road about five to ten feet behind her, and at that time McCauley was carrying his brown bag.

The location where the car was parked was dark, although there were some street lights “around there.” At the car, Johnson grabbed Debbie on the driver’s side of the car, and began pushing her up against the car. McCauley had walked to the passenger’s side and opened the door for Josa, but she stopped short of the car to see what was going to happen. Josa started telling Johnson to leave Debbie alone. Then she heard McCauley say, “Won’t you let them go home? The ladies don’t want to talk to you tonight. Let them go home and maybe talk to you tomorrow.”

Johnson replied: “You don’t have nothing to do with this.” He was still pushing Debbie against the car, and she was screaming and crying for him to leave her alone.

Johnny McCauley came around the back of the car and stood in front of Skit. Skit turned and went for his pocket. Josa turned and ran, hearing a shot after the first two steps, which she estimated covered some five to ten feet. The reason she turned and ran when she saw Johnson reach for his back pocket was: “Because I thought William was reaching for a gun or a weapon or something the way he had been acting. And when, like I was trying to talk to him when he was standing against the car, seemed like nobody could talk to him. He wasn’t going to listen to nobody. It was going to be his way or no way. With all that and all the past problems she (Debbie) had, I wasn’t taking any chances with my life.”

Josa ran until she got back to the party. Then Johnny and Debbie pulled up in the car, he got out carrying the brown bag, and Josa got in. Johnny walked into the crowd. Debbie was crying and Josa tried to console her. Johnny got back in with the brown bag and told them to take him to the police station. She didn’t see a gun on either Johnny McCauley or Skit Johnson at any time.

III. OTHER TESTIMONY

The state also presented evidence that after the shooting McCauley handed the gun to another man at the party and told him to take it home. This man subsequently gave the gun to the police. Police officers who investigated the shooting incident testified no weapon was found at the scene or on the body of the decedent. There was also uncontroverted testimony relating to pathology and ballistics to show the McCau-ley’s gun had killed Johnson. Another witness, one Eddie Crayton, who was at the party when the fatal shot was fired, testified that he ran “about a hundred yards” down the road to the scene of the incident and found Skit Johnson lying on the ground. He saw no one touch Johnson, and he saw no weapon in the area around the body.

IV. THE STATEMENT OF McCAULEY

The voluntary statement which McCauley gave to the police approximately one hour and a half after the shooting was read into evidence at the conclusion of the case for the state. In the statement, McCauley revealed the problems he and Debbie had been having with Skit, including the threats and break-ins at her house. His version essentially was the same as that given at trial by Debbie and Josa. McCauley did not know Skit Johnson would be at the party and had no contact or words with him then.

McCauley walked Josa to Debbie’s car and was going to ride home with them from the party. At the point he stepped in between Skit and Debbie beside the car, Skit stepped backward a couple of steps, cursing (“you mother so-and-so”), and reached behind his back with his right hand for his pocket. McCauley had his .38 caliber gun in the unzipped leather bag he was carrying. He had been carrying the gun “ever since this (trouble with Skit) happened” and he had told the police about it at the time of the telephone threat. McCauley was “scared of him ’cause they say he’s shell-shocked or whatever I don’t know, but he done told the police and me that he was going to hurt both of us if he ever caught us together.” (This also apparently alludes to the telephone threat with the police officer on the extension.) When Johnson reached behind his back, McCauley dropped the bag and shot, aiming at Johnson’s head. He could not see Johnson’s hand at that point “ ’cause it was black and I didn’t see nothing.” McCauley then told Debbie to take him to the police station.

McCauley told the police: “I don’t know if he was going to hurt me or not so this might be my fault. I don’t know, but I’m scared of him ... [H]e threatened me three or four times.”

The police investigator then asked: “At the time you shot him, or pulled the gun out, what was going on in your mind?”

McCauley answered: “That he was going to shoot me, ’cause he say he was going to shoot me, to kill both of us if he ever see us together.”

The investigator then queried: “When did he say that?”

McCauley answered: “He say this for the last three or four weeks. He’s been saying it every day. He tells her mama, her father, her family, everybody there. He tells everybody. Everybody at the party knows about it, but my wife, ’cause I don’t let her go out. Everybody knows he been saying that, you know, but I don’t know if he is going go through with it ’cause I won’t let him do none to me. You know, I just hope my mama don’t find out, but I just hope he don’t hurt me because of her because I’m married.”

McCauley did not see a weapon on Skit that night, but thought it could have been concealed under the shirt which was hanging out. McCauley said: “I think at the time it happened that he had one ’cause he always tell us he going to do it.” He thought Skit always carried a black .357 magnum, and had seen him previously display it at various places. At another point in his statement, McCauley said: “He (Johnson) flinched like he was going to hurt me so I was going to hurt him before he hurt me, ’cause he had told me two or three weeks ago on the phone that the was going to do this to me, that if he ever catches me he’s going to hurt me.”

At this point, the state rested, and the trial court was confronted with the defendant’s motion for judgment of acquittal.

ARGUMENTS

The state’s argument is that it established a prima facie case by showing that McCauley deliberately fired his .38 at Johnson, this being an act imminently dangerous to Johnson and evincing a depraved mind on the part of McCauley. The state relies for this argument primarily upon three cases: Spinkellink v. State, 313 So.2d 666 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976); Edwards v. State, 302 So.2d 479 (Fla. 3d DCA 1974); and Hines v. State, 227 So.2d 334 (Fla. 1st DCA 1969).

In Spinkellink, the issue of self defense was a controverted one: there the state affirmatively produced evidence (1) that the defendant deliberately went into a motel room with a gun to recover money from a victim he knew to be unarmed, after telling a companion he might hear a gunshot; (2) that the defendant had ample opportunity to leave the scene before the confrontation with the victim without risk of harm to anyone; (3) that the fatal shot was fired next to a pillow, raising the inference that the victim was shot while lying down; and (4) there was flight by the defendant after the shooting, which is evidence of guilt. No analogous factors are present in the instant case. Here (1) the victim was clearly the aggressor; (2) there was no opportunity for McCauley to leave the scene, once Johnson had precipitated the confrontation at the car, without the risk of harm to Debbie or to himself; (3) the fatal shot was fired when all of the state’s eyewitnesses thought that Johnson was reaching for a deadly weapon, as he had repeatedly threatened to do for more than a month; and (4) there was no flight by McCauley after the shooting.

In Edwards, there was no indication whatsoever that the victim was armed or that he was threatening any harm to the defendant therein at the time he was shot. In Hines, there was no issue of self defense at all; the question was whether or not the fatal shot there was fired as the result of a degree of recklessness that would meet the test prescribed for the statutory offense of second-degree murder. The state presented clear evidence that the defendant Hines deliberately pointed a shotgun at the head of his girlfriend while horsing around after an all-night party, told her to “act like a squirrel” since he wanted to go squirrel hunting, and caused her death by “stupidly funning around with a dangerous weapon.” The appellate court reduced his conviction from first- to second-degree murder.

In the instant case, the state’s uncontro-verted evidence showed that Johnny McCauley deliberately shot Skit Johnson in the head with a .38. That was an act imminently dangerous to Johnson. But was there evidence that this evinced a depraved mind on the part of McCauley? The proof of this, if such there was, necessarily was circumstantial. But where proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. McArthur v. State, 351 So.2d 972 (Fla.1977); Davis v. State, 90 So.2d 629 (Fla.1956); Mayo v. State, 71 So.2d 899 (Fla.1954). In the instant case, the most reasonable hypothesis under the facts adduced by the state was that Skit Johnson was going for his .357 magnum when McCauley shot first. Indeed, this is what both of the state’s independent eyewitnesses thought according to their consistent and uncontroverted trial testimony. Factual evidence that is uncon-troverted and undiscredited, where it is not inherently incredible, cannot be wholly disregarded or arbitrarily rejected. Brannen v. State, 94 Fla. 656, 114 So. 429 (1927). In order to convict McCauley of second-degree murder under the facts adduced by the state in its case in chief, this rule had to be abrogated by the trial jury. Hence, it was error by the trial judge to deny the motion for judgment of acquittal.

Although such a test is unnecessary to my conclusion, it is accurate to say that the state in its case presented evidence establishing beyond and to the exclusion of reasonable doubt that the acts of Johnson, coupled with his threats, induced in McCau-ley at the time of the shooting a reasonable, honest and actual belief of imminent danger to himself justifying self defense. Harris v. State, 104 So.2d 739 (Fla. 2d DCA 1958). Can any reasonable man, reviewing the above facts, believe that McCauley, as of October 22, 1979, was not endangered by Johnson to the extent that his alternatives for survival were either to flee the Orlando area, which he was not legally obligated to do, or to arm himself against a psychopath who featured himself a trained killer and who had repeatedly asserted throughout the community, even on one occasion to the police, that he intended to kill McCauley— just as he had attempted to kill a prior boyfriend of Debbie Donaldson?

The defendant clearly was guilty of a crime. But that crime was not murder. It was carrying a concealed firearm. He was not charged with that offense, and it is not a lesser included offense of homicide. Brown v. State, 245 So.2d 68 (Fla.1971), modified on other grounds, 408 U.S. 938, 92 S.Ct. 2870, 33 L.Ed.2d 759 (1972).

In addition, there was other reversible error committed during the course of this trial. During the course of his cross-examination of McCauley, the prosecutor inquired as follows:

Q. Isn’t it true, Mr. McCauley, you turned to me this morning and said you were going to get me?
A. No.
Q. That’s not true?
A. No. Get you for what?
Q. Isn’t it true on the way to the police station, you stopped and you told a buddy on the corner, “I just shot me a mother fucker?”
A. No.
Q. Thank you. I don’t have any other questions.

The prosecutor did not elicit any testimony or offer any other evidence which would indicate that there was any factual basis for the above-quoted questions.

Prosecutorial comments that are so inflammatory, prejudicial, or otherwise improper that they deprive a defendant of a fair and impartial trial are cause for a new trial. Singer v. State, 109 So.2d 7 (Fla. 1959). Although there was no objection made to these questions, the asking of such questions without any factual foundation is so egregious as to constitute fundamental error.

The judgment and sentence below should be reversed and this case remanded for discharge of the defendant, or, at the very least, a new trial should be ordered because of the prejudicial misconduct of the prosecutor.

      . This quote is from the dissent. Johnny Boy unzipped the bag in which he carried his pistol as he walked with Josa on the way from the party to the car where the killing occurred. Johnny Boy later explained that his gun bag “fell open” as he went around the car. Considering this, the prior threats and the circumstances, going around the car to confront Skit does not appear to be the actions of one who is using all reasonable means within his power to avoid danger and to avert the necessity of using deadly force and the taking of human life. Johnny Boy knew he was well armed and ready to shoot.

      . Even if there had not been sufficient evidence to justify a finding that the shooting evinced a depraved mind, that would only mandate reversing and remanding with directions to enter a judgment of conviction for manslaughter and a sentence thereon, rather than completely discharging the appellant from his crime, as the dissent maintains. See Pierce v. State, 376 So.2d 417 (Fla. 3d DCA 1979); Martinez v. State, 360 So.2d 108 (Fla. 3d DCA 1978); § 924.34, Fla.Stat. (1979).

      . Fla. Std. Jury Instr. (Crim.) 2.11(d). See also §§ 776.012, 782.02, Fla.Stat. (1979).

      . “Deadly force,” “imminent commission of a forcible felony,” “reasonable,” “belief,” “danger,” “necessary to prevent,” “necessary to protect,” “circumstances,” “reasonably cautious and prudent person,” “appearance of danger,” “imminent use of unlawful force,” “all reasonable means,” “duty to retreat,” “every reasonable means to escape,” “imminent danger of death or great bodily harm,” “one who initially provokes the use of force,” “relative physical abilities and capacities,” “excessive force,” “conduct,” “hostility,” “provocation,” “justification,” and “mutual combat.”

      .The closest is Ramsey v. State, 114 Fla. 766, 154 So. 855 (1934), cited in footnote 3 of the dissent. A careful reading of that interesting case reveals that the appellate court merely “pardoned” Ramsey because it felt that under the circumstances the victim was a vulgarian, whom no one should be blamed for killing.

      . As to the admissibility of evidence of the deceased’s violent character and his threats, whether known or unknown to the defendant, see Banks v. State, 351 So.2d 1071 (Fla. 4th DCA), cert. denied, 354 So.2d 986 (Fla. 1977), and 16 Fla.Jur.2d Criminal Law § 1136 (1979).

      . The police did nothing because no offense. occurred in their presence, according to Debbie.

      . The fact that no weapon was found on Johnson does not negate the appearance to McCau-ley that he had one. See Ramsey v. State, 114 Fla. 766, 154 So. 855 (1934).


author: ORFINGER, Judge.

text:
    Francis JOYCE and Columbia Joyce, Appellants, v. COMBANK/LONGWOOD, a Florida banking corporation, n/k/a Combank/Seminole County, Florida, Appellee.
    No. 80-1207.
    District Court of Appeal of Florida, Fifth District.
    Nov. 18, 1981.
    Leon B. Cheek, III, Altamonte Springs, for appellants.
    Marvin E. Rooks, Casselberry, for appel-lee.
   ORFINGER, Judge.

We are asked to determine on this appeal if the sale by the bank of a repossessed automobile carries with it the implied warranty of merchantability contained in section 672.2-314(1), Florida Statutes (1979). The trial court held that it did not and granted a summary final judgment in favor of the bank. The purchaser appeals and we affirm.

The facts appear in the record without dispute. Appellants filed suit against the bank alleging that they had purchased a vehicle from the bank which they subsequently discovered to have a defectively repaired front axle. The front axle broke and appellants wanted a refund of the purchase price. The vehicle in question had been repossessed by the bank. Both parties agree that the bank made full disclosure of a minor accident involving the car, but not a broken axle of which the bank was unaware. Plaintiffs did not assume the bank knew any more about the car than they did, and the bank did not hold itself out as having any special knowledge about the car. Pursuant to normal banking practice, Corn-bank sold four other repossessed automobiles during the preceding year. The bank does not hold itself out as having any special knowledge or skill with respect to automobiles when making such sales.

Unless excluded or modified, a warranty of merchantability is implied in a contract for sale of goods “if the seller is a merchant with respect to goods of that kind.” § 672.2-314, Fla.Stat. (1979). The trial court determined, however, that “Defendant, Combank/Seminole County, is not a merchant as that term is defined in the Uniform Commercial Code with respect to the sale of used cars.”

Appellant contends that the trial court could not make this determination as a matter of law because the record shows that the bank had repossessed and sold four other automobiles within the one-year period immediately preceding the transaction in question, so there was a factual issue on whether the bank was or was not a “merchant” under section 672.2-104. We disagree. While the general definition of “merchant” under section 672.2-104(1) is relatively broad, the term becomes more sharply defined when the implied warranty provision of section 672.2-314 is called into play. The official comments to section 672.-2-104 say:

On the other hand, in section 2-314 on the warranty of merchantability, such warranty is implied only “if the seller is a merchant with respect to goods of that kind.” Obviously this qualification restricts the implied warranty to a much smaller group than everyone who is engaged in business and requires a professional status as to particular kinds of goods, [emphasis added].

The record is clear that the bank had no specialized knowledge as to automobiles nor did the bank employee who sold the car. In fact, appellant Francis Joyce testified that he was better qualified to determine the condition of the car than was defendant’s employee who negotiated the sale. It appears without dispute that the bank had no “professional status as to the particular [kind] of goods.”

Under similar code provisions other states have reached the same result. In Donald v. City National Bank of Dothan, 329 So.2d 92 (Ala.1976), the bank was sued because of an alleged breach of warranty in the sale of a repossessed boat. In sustaining a summary judgment for the bank, the court said

“No evidence was offered that the [Bank] deals in the kind of goods involved in this transaction — boats—or that it holds itself out as having knowledge or skill peculiar to such goods.
The record before the trial court and here indicates that the sale of the boat was no more than an isolated transaction by the bank.”

Id. at 95.

Appellant says that here, the fact that five repossessed .vehicles were sold in the one-year period involves more than “an isolated transaction,” but we do not agree that the number of transactions alone is material. In All State Leasing Co. v. Bass, 96 Idaho 873, 538 P.2d 1177 (1977), a leasing company had leased a car wash unit to a lessee. Defending a suit for breach of lease payments, the lessee alleged a breach of implied warranty of merchantability under that State’s counterpart of section 2-314. The court held that even forty to fifty such lease transactions within the prior six to eight months did not, in and of itself, make the leasing company a “merchant!’ under the code.

There is no showing here that the bank deals in the kind of goods involved here or that the sales of the repossessed automobiles were anything other than isolated, sporadic occurrences. On the record before us, the trial court was correct in its holding that the bank was not a “merchant” and that there was thus no implied warranty of merchantability in the sale of the repossessed automobile. The summary final judgment is

AFFIRMED.

COBB and FRANK D. UPCHURCH, JJ„ concur.

      . § 672.2-314(1), Fla.Stat. (1979):
      Unless excluded or modified (§ 672.2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.

      . Section 672.2-104(1), Florida Statutes (1979):
      “Merchant” means a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.


text:
    In re The ESTATE OF Eugene N. SUGGS, Jr., Deceased. Frances M. SUGGS, Appellant, v. ESTATE OF Eugene N. SUGGS, Jr., and Evelyn L. Davis, as Personal Representative of the Estate of Eugene N. Suggs, Jr., Appellee.
    No. 81-103.
    District Court of Appeal of Florida, Fifth District.
    Nov. 18, 1981.
    Robert L. Thomas, Apopka, for appellant.
    Stephen M. Stone, Orlando, for appellee.
   ORFINGER, Judge.

Appellant filed an action against the personal representative of decedent’s estate requesting a declaration that she was the common law wife of the decedent, a determination of her interest in certain property owned jointly by her and the decedent, and other relief. The personal representative denied the allegations of the marriage, and asserted affirmatively that appellant was not the common law wife of decedent because she was married to another man until April 26, 1968; therefore, she was not competent to become the common law wife of decedent until a time after January 1, 1968, when common law marriages were abolished in Florida. Following a non-jury trial, the trial court, having determined that appellant was not the common-law wife of decedent and was therefore not his surviving widow, denied her claim that she was the surviving tenant by entirety of certain real property owned by decedent and herself. We affirm.

The two essentials of a common law marriage are capacity and mutual consent. There is competent evidence in the record to support the court’s finding that appellant was not the common law wife of decedent, and was thus not his surviving spouse. Because she was married to another on the date when common law marriages were no longer valid in Florida, she lacked the capacity to enter into a common law marriage with decedent while such marriages were still recognized.

Appellant further contended that when she and decedent purchased some real estate in 1971 and took title in the names of “Eugene N. Suggs and Frances Mary Suggs, his wife,” she and decedent became tenants by the entirety even if there was no marriage, and thus she was entitled to the entire ownership as the surviving tenant. The trial court held otherwise.

Except for estates by the entirety, a conveyance to two or more persons creates a tenancy in common unless the instrument creating the estate expressly provides for the right of survivorship. § 689.15, Fla. Stat. (1971). A conveyance to spouses as husband and wife creates an estate by the entirety in the absence of express language showing a contrary intent. Losey v. Losey, 221 So.2d 417 (Fla.1969). If appellant had established a valid common-law marriage, the deed in question would have been sufficient to create the estate by the entirety.

Appellant relies on Kent v. O’Neil, 53 So.2d 779 (Fla.1951), and Little River Bank and Trust Company v. Eastman, 105 So.2d 912 (Fla.3d DCA 1958), as supporting her position that the conveyance to decedent and herself as husband and wife created in her a right of survivorship, notwithstanding the invalidity of the marriage. These cases are distinguishable. In Kent, the grantees were not husband and wife, although the deed recited that they were, but the deed contained the express words “with full right of survivorship.” In Little River, the parties were in fact husband and wife, and the deed in question was from the husband to the wife.

This case is controlled by Maliska v. Dion, 62 So.2d 4 (Fla.1953), in which a deed with identical language was held to create a tenancy in common between the grantees after the death of the putative husband because no common law marriage was established. See also Higgins v. Higgins, 146 So.2d 122 (Fla.3d DCA 1962). There being no valid marriage between appellant and decedent and no language in the deed showing the intent to create an estate of surviv-orship, the trial court was correct in its holding that appellant and decedent were tenants in common.

The judgment appealed from is

AFFIRMED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

      . § 741.211, Fla.Stat. (1967).