text:
    Floyd MORGAN, Appellant, v. STATE of Florida, Appellee.
    No. 54939.
    Supreme Court of Florida.
    March 18, 1982.
    Rehearing Denied July 9, 1982.

      Michael E. Allen, Public Defender and Margaret Good, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This cause is before the Court on appeal from a judgment of conviction of first-degree murder and a sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

FACTS

Appellant was convicted of the murder of Joe Saylor, who was stabbed to death in his cell in Union Correctional Institute at approximately 2:00 a. m. on July 16,1977. At the time of the murder, appellant was under a sentence of thirty years imprisonment for second-degree murder.

Glynn Griffin, another inmate, testified that at appellant’s request he made a knife for him in the prison shop. At the trial, Griffin identified a knife as the one he made. The knife was admitted into evidence. Griffin testified further that appellant told him he wanted the knife in order to stab a man who owed him $400 and would not pay.

Dan Helton, one of appellant’s cellmates, testified that he, the victim Joe Saylor, and two other prisoners were in their cell in bed and asleep by 12:00 midnight on the night of July 15. Helton testified that he was later awakened by a yell following which a cellmate told him to turn on the light. Then he saw Joe Saylor on the floor covered with blood.

Michael Daly, a prisoner whose cell was nearby, testified that he was sitting at a table in the hall writing a letter that night after most of the other prisoners had gone to sleep. He heard noises from appellant’s cell. Then, appellant walked out of the cell. He walked down the hall toward a lavatory. Daly followed him to find out what had happened. In the lavatory, he saw that appellant’s right hand was cut on the palm side across the base of the fingers.

William Williamson, who slept in a nearby cell, was reading at 2:00 a. m., he testified, when he heard noises. He went out of his room and saw appellant, whose hand was bleeding. Morgan said, “I killed him.”

On the morning of the murder, appellant was interrogated by prison investigators. Inspector Ackett testified that appellant voluntarily made a statement admitting that he committed the murder. That same day, appellant was removed from his residence at Union Correctional Institute and taken to the Lake Butler Reception and Medical Center, where he was confined until September 9, 1977. Then he was transferred to Florida State Prison until his arraignment on January 16, 1978. Appellant was indicted on November 28, 1977, and was represented by counsel at his arraignment.

On May 19, 1978, appellant filed a pro se motion for discharge from the accusation made in the indictment, asserting that the state’s failure to afford him a “prompt first appearance” under Florida Rule of Criminal Procedure 3.130(b) and its failure to afford him a probable cause determination under Florida Rule of Criminal Procedure 3.131 and the cited case of Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), had denied him due process of law. The trial judge denied the motion without a hearing and declared in his order that he would not consider any more pro se motions of the defendant.

Inmate Helton’s testimony included reference to Alvin Robitaille, another of appellant’s cellmates. Helton testified that Ro-bitaille was present in the cell when the lights were turned on and Saylor’s body discovered. Robitaille was listed by the state as a prospective witness, but was never called to testify. At the conclusion of the evidence, the defense had the “middle” closing argument, preceded and followed by the closing remarks of the state’s counsel. After the defense made its closing remarks, the court took a ten minute recess. After court reconvened, the defense asked to briefly re-open its closing argument for the purpose of commenting on the state’s failure to call Robitaille as a witness. The court denied this request.

ISSUES ON APPEAL OF THE JUDGMENT OF CONVICTION

Appellant contends that the trial court committed reversible error in failing to ensure the reporting and transcription of all of the proceedings below. He argues that the requirement in section 921.141(4), Florida Statutes (1977), of “certification by the sentencing court of the entire record,” together with the constitutional requirement of uniformity in capital sentencing which appellate review is designed to ensure, mandate that all proceedings leading to a judgment of conviction of a capital felony be reported, transcribed, and made a part of the record. Appellant points out that his arraignment, a number of pre-trial hearings, and several bench conferences appear not to have been reported.

The state responds by pointing out that all of the court reporter’s notes of proceedings before the trial court were transcribed, made a part of the record, and forwarded to the supreme court for review. The state argues that this complied with section 921.-141(4) and Florida Rule of Appellate Procedure 9.200. We sustain the state’s position. By certifying the reported and transcribed materials along with all the documents of record, the court complied with the requirement of certification of the “entire record.” The fact that parts of the proceedings were not reported has not prejudiced the appeal in this case.

Appellant contends that the trial court committed reversible error in denying his pro se motion to discharge without holding a hearing on the possibility of intentional and prejudicial delay of prosecution. In his testimony on behalf of the state’s proffer of appellant’s confession, Inspector Ack-ett testified that following his inculpatory statement, appellant asked to see an attorney. Appellant now argues that the state’s delay of over four months in bringing the charge and six months before providing counsel and an appearance before a judicial officer denied him due process of law. He contends that his May 19, 1978 motion raised this issue and should not have been denied without inquiry into the reasons for and the prejudice caused by the delay.

Appellant correctly points out that there are cases where the Due Process Clause is implicated by prosecutorial delay even though neither the defendant’s right to a speedy trial nor the applicable statute of limitations are offended. See United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Griffin, 347 So.2d 692 (Fla. 1st DCA 1977), cert. dismissed, 358 So.2d 134 (Fla.1978). We do not find, however, that appellant’s May 19, 1978 motion was effective to raise the issue of prejudice resulting from the four-month delay between the crime and the indictment occurring the previous summer and fall. If the pre-accusation delay was intentional and prejudiced the defense, and presented an issue of denial of due process, appellant should have moved to dismiss the indictment on that ground as soon as possible after the indictment was returned. Moreover, we find that the delay in the appointment of counsel did not prejudice the appellant.

Appellant contends that the trial court failed to make a sufficiently thorough inquiry into the voluntariness of his confession. In the absence of adequate inquiry, he argues, it was error to admit testimony about the confession and therefore he is entitled to a new trial. Appellant claims that there was an inconsistency between the testimony of the state’s witness and the representations of the state’s counsel on the question of whether a tape recording of appellant’s statement conclusively showed that appellant confessed before asking for an attorney. This argument is without merit. If the tape showed anything that would have raised a question on this issue, appellant could have presented it to the court. The trial court found that the confession was voluntary based on the evidence submitted. The court did not abuse its discretion by not making further inquiry on its own motion. By holding a hearing outside the presence of the jury on the question of the voluntariness of the confession, the court did all that was required to protect appellant’s rights under the Fifth Amendment. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). We find that the court correctly determined the confession to be admissible.

Appellant contends that the trial court erred in denying his motion to exclude employees of the state prison system from service on the jury. His motion was based on the allegation that Union County, where the trial was held, has a disproportionate share of its eligible population in the employ of the state prison system due to the presence of numerous correctional facilities in that region of the state. Appellant argues that section 40.07, Florida Statutes (1977), which disqualifies sheriffs, deputies, and municipal police officers from jury service, should be construed to apply to correctional officers.

We decline to hold that all correctional officers were intended to be included within the classes of persons disqualified from jury service by section 40.07(2). In their briefs, both parties agree that since appellant did not exhaust all his peremptory challenges to prospective jurors, we are not required to consider whether any juror served who should have been excused for cause. Young v. State, 85 Fla. 348, 96 So. 381 (1923). Nevertheless, we have reviewed the transcript of jury selection. We are satisfied that all persons selected were qualified; none were subject to challenge for cause.

Appellant presents three instances in which he contends the trial court improperly limited his cross-examination of state witness Glynn Griffin. The first instance had to do with Griffin’s testimony about the knife. On direct examination, Griffin described the knife he said he made for appellant. The knife itself had not yet been admitted into evidence. On cross examination, appellant’s counsel sought to have the witness make a drawing of the knife on a blackboard. The court refused to allow the blackboard drawing on the ground that such an illustration could not be preserved and made a part of the record. Appellant argues that this ruling prevented effective cross examination and thereby abridged his right to confront the witnesses against him.

The court’s ruling on appellant’s proposed use of chalk drawings on a blackboard was a limitation on the method, not the substance, of appellant’s cross examination of Griffin. Appellant now argues that a blackboard drawing could have been preserved for the record by photographing it. Appellant did not propose this solution in the trial court, however. Nor did he ask that the witness be permitted to draw the knife with pencil and paper. The question of what method of cross examination to allow was a matter for the sound discretion of the trial court and appellant has not shown that the court abused its discretion.

Appellant also contends that the trial court twice more improperly limited cross examination, abridging the right to confrontation of witnesses, when it sustained the state’s objections to two questions asked witness Griffin on cross examination. The questions were whether he had ever made other knives while in prison and how long he had been incarcerated at Union Correctional Institute.

With regard to the question of how long Griffin had been confined at Union Correctional Institute, we hold that the trial court was correct in sustaining the state’s objection on the ground of relevance. Appellant argues that information on the seriousness of the crime for which Griffin had been imprisoned, and inferences about how much of his sentence remained to be served, would have been relevant to show his interest in cooperating with the state. We do not see the relevance. The defense was allowed to impeach Griffin’s credibility in the standard fashion. Thereby it was brought out that he had been convicted of crimes three times. The length of his past incarceration at Union Correctional Institute was irrelevant to any material issue and the objection was properly sustained.

With regard to the question whether Griffin had ever made a knife before, however, we believe the defense inquired into a relevant matter. Since it was established that Joe Saylor was stabbed to death, the fact that Griffin may have made other knives was just as relevant as was the fact that he made one for appellant. Therefore the trial court erred in sustaining the state’s objection on the ground of relevance. However, the error was harmless. In subsequent cross examination defense counsel asked Griffin whether he had ever before been asked to make a knife and he responded that he had not. Defense counsel asked him whether he had ever made a knife before and he responded that he had. Thus the defense was permitted to ask substantially the same question that had earlier been disallowed and the court’s earlier error was cured. When the court errs in disallowing certain evidence or a question or series of questions on cross examination but substantially the same matters sought to be presented or elicited are brought before the jury through other testimony of the same or another witness, the error is harmless. Palmes v. State, 397 So.2d 648 (Fla.1981); Denmark v. State, 95 Fla. 757, 116 So. 757 (1928); Baker v. State, 30 Fla. 41, 11 So. 492 (1892), overruled in part, Tipton v. State, 97 So.2d 277 (Fla.1957).

Appellant contends that the trial court abused its discretion in refusing to allow defense counsel to reopen his closing argument for the purpose of commenting on the state’s failure to call appellant’s cellmate Robitaille as a witness. Appellant points out that the testimony of Dan Helton placed Robitaille in the room at the time of the murder. Therefore, he argues, Robit-aille was almost certainly a person with knowledge of material facts. The fact that such a person was not called to testify, appellant claims, was a proper subject for comment by defense counsel.

The court denied the request for reopening of defense counsel’s argument on the ground that since the defense could have called Robitaille as easily as could have the state, the comment defense counsel wished to make would have been improper.

We agree with appellant that the fact that Robitaille was not produced as a witness was a matter “within the bounds of that considerable degree of latitude which is allowed counsel in argument.” Pell v. State, 97 Fla. 650, 661, 122 So. 110, 114 (1929). Had defense counsel managed to make an appropriate comment within the time allotted to him for argument, the comment would have been permissible. The court was not obliged, however, to interrupt the orderly flow of the trial to afford the defense a second opportunity to bring the matter to the attention of the jury. The trial court’s ruling should not be held to require reversal unless “clearly erroneous and prejudicial.” Id. at 662, 122 So. at 115.

SENTENCE

Appellant contends that his sentence of death must be vacated because section 921.141, Florida Statutes (1977), pursuant to which the sentence was imposed, is unconstitutional. He argues that the statute seeks to regulate matters of criminal trial practice and procedure, which are exclusively the province of this Court under the rule-making power assigned to it by article V, section 2(a), Florida Constitution.

This argument is without merit. The aggravating and mitigating circumstances enumerated in section 921.141 are substantive law. Vaught v. State, 410 So.2d 147 (Fla.1982); State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, Hunter v. Florida, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed. 2d 295 (1974).

The aggravating circumstances of Fla. Stat. § 921.141(6), F.S.A., [sic] actually define those crimes — when read in conjunction with Fla. Stat. §§ 782.04(1) and 794.01(1), F.S.A. — to which the death penalty is applicable in the absence of mitigating circumstances. As such, they must be proved beyond a reasonable doubt before being considered by judge or jury.

Id. at 9. To the extent that section 921.141 pertains to procedural matters such as the bifurcated nature of the trial in capital cases, it has been incorporated by reference in Florida Rule of Criminal Procedure 3.780, promulgated by this Court, and is therefore properly adopted. See The Florida Bar, Re Florida Rules of Criminal Procedure, 343 So.2d 1247, 1263 (Fla.1977).

Appellant contends that section 921.141 is unconstitutional as applied to him because the judge and jury were precluded from giving proper consideration to the evidence he offered in mitigation of his crime. He argues that the procedure utilized at his sentencing trial pursuant to section 921.141 prevented the judge and jury from assigning the proper weight to his mitigating evidence and that this violated principles of the Eighth and Fourteenth Amendments developed in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). We have specifically held, however, that section 921.141 and the procedure utilized thereunder are in keeping with the principles of Lockett. Songer v. State, 365 So.2d 696 (Fla.1978) (on rehearing), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979).

Appellant contends that he is entitled to a new sentencing trial because the jury that recommended the death penalty was made aware of the fact that appellant’s previous conviction of second-degree murder, for which he was serving a thirty-year sentence at the time of the instant murder, was obtained pursuant to an indictment for first-degree murder. Appellant argues that apprising the jury of this fact violated the principles of Elledge v. State, 346 So.2d 998 (Fla.1977) and Provence v. State, 337 So.2d 783 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1069 (1977), which hold that only convictions, and not mere accusations, may be presented to establish the statutory aggravating circumstance of previous conviction of violent crime. See § 921.141(5Xb), Fla.Stat. (1977).

The rule of Provence that “mere arrests or accusations” may not be considered as factors in aggravation does not require a new sentencing trial in this case. Here there was no “mere” accusation that had not led to a conviction. There was an accusation of first-degree murder that led to a conviction for second-degree murder. This was relevant not only to fully apprise the jury of the background of appellant’s previous conviction, it was also relevant to rebut appellant’s attempt to show that his history of criminal activity was not significant. Furthermore, we note that appellant did not object to allowing the previous indictment to go to the jury at the time it was introduced, but raised the issue for the first time in his motion for new trial. We perceive no error.

Finally, appellant contends that the trial court erred in its evaluation of the circumstances of this case and that the sentence of death is simply inappropriate. The judge found that at the time of the murder, appellant was under sentence of imprisonment, § 921.141(5Xa), Fla.Stat. (1977); that appellant had previously been convicted of a felony involving the use or threat of violence, id., § 921.141(5)(b); and that the capital felony was especially heinous, atrocious, or cruel, id., § 921.141(5Xh). The first two aggravating circumstances found were amply supported by evidence of appellant’s incarceration and documentation of his previous judgment of conviction of second-degree murder, rendered on an indictment for first-degree murder. Under established precedent interpreting the capital felony sentencing law, the third aggravating circumstance is also supported. The evidence showed that death was caused by one or more of ten stab wounds inflicted upon the victim by appellant. See Rutledge v. State, 374 So.2d 975 (Fla.1979), cert. denied, 446 U.S. 913, 100 S.Ct. 1844, 64 L.Ed.2d 267 (1980); Foster v. State, 369 So.2d 928 (Fla.), cert. denied, 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 (1979); Washington v. State, 362 So.2d 658 (Fla.1978), cert. denied, 441 U.S. 937, 99 S.Ct. 2063, 60 L.Ed.2d 666 (1979).

The trial judge found that there were no mitigating circumstances. We uphold this finding against appellant’s contentions of error. The jury recommended that a sentence of death be imposed. We hold that under these circumstances, the death sentence is proper.

The judgment and sentence are affirmed.

It is so ordered.

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


source: Caselaw Access Project

author: BOYD, Justice. OVERTON, Justice, SUNDBERG, Chief Justice,

license: Public Domain

text:
    Frederick W. CHAPMAN and Liberty Mutual Insurance Company, Appellants, v. Dennis P. DILLON, Jr., etc., Dennis P. Dillon, and Aurelia M. Dillon, etc.
    No. 61013.
    Supreme Court of Florida.
    March 18, 1982.
    Rehearing Denied July 7, 1982.

      John M. McNatt, Jr., Jack W. Shaw, Jr. and J. Stephen O’Hara, Jr. of Mathews, Osborne, McNatt, Gobelman & Cobb, Jacksonville; and Janet R. DeLaura and Jon E. Johnson of Smalbein, Eubank, Johnson, Rosier & Bussey, Rockledge, for appellants.
    Sammy Cacciatore and James A. Sisser-son of Nance, Cacciatore & Sisserson, Melbourne, for appellees.

      Frederick B. Karl, General Counsel, Florida Association of Insurance Agents and Richard C. McFarlain of McFarlain, Bobo, Sternstein, Wiley & Cassedy, Tallahassee, for Florida Association of Insurance Agents, amicus curiae.
    Delbridge L. Gibbs of Marks, Gray, Con-roy & Gibbs, Jacksonville, for The National Association of Independent Insurers, The American Insurance Association, The Alliance of American Insurers, The Florida Association of Domestic Insurance Companies, The Florida Insurance Council, Inc., State Farm Mutual Automobile Insurance Company and Continental Casualty Company, amici curiae.
    Jim Smith, Átty. Gen., and Thomas R. Tedcastle, Asst. Atty. Gen., and Daniel Y. Sumner, Counsel for Bill Gunter, Commissioner of Insurance, Tallahassee, for The State of Florida, amicus curiae.
    Larry Klein, West Palm Beach, for The Academy of Florida Trial Lawyers, amicus curiae.
   BOYD, Justice.

This case is before us to review a decision of the district court of appeal that declared invalid certain provisions of the Florida Automobile Reparations Reform Act (the “no fault” insurance law), sections 627.730-627.741, Florida Statutes (1979). Dillon v. Chapman, 404 So.2d 354 (Fla. 5th DCA 1981). Pursuant to article V, section 3(b)(1) of the Florida Constitution, we have jurisdiction.

Dennis Dillon, a minor, and his parents, sued Frederick Chapman and Liberty Mutual Insurance Company for damages, including pain and suffering, incurred in an automobile collision allegedly caused by Chapman’s negligence. Dillon suffered severe but nonpermanent injuries and had medical expenses exceeding $1,000. The defendants moved for dismissal or a judgment in their favor, asserting that the complaint failed to state a cause of action because the facts alleged did not meet the “tort threshold” under section 627.737. Plaintiffs responded with the contention that section 627.737 is unconstitutional as a denial of access to courts, due process, and equal protection. The trial court issued an order holding for the defendants and finding the statute constitutional.

On appeal, the district court found sections 627.736(1), 627.737, and 627.739 of the no-fault statute unconstitutional. The court reasoned that legislative changes since the time of Lasky v. State Farm Insurance Co., 296 So.2d 9 (Fla.1974), and Kluger v. White, 281 So.2d 1 (Fla.1973), had rendered the statute invalid. Since the legislative changes complained of are reasonable attempts by the legislature to correct some of the practical problems which the no-fault law had posed, we find that principles and reasoning in Lasky v. State Farm Insurance Co. are still applicable. We therefore conclude that the “no fault” insurance law as codified in the 1979 statutes is constitutional. As did the district court, we shall address each of the constitutional issues separately.

DENIAL OF ACCESS TO THE COURTS

Dillon was not allowed to maintain his suit for pain and suffering because he did not meet the threshold requirements of section 627.737(2), Florida Statutes (1979), insofar as his injuries were not permanent. He argues that these requirements deprive him of his right of access to the courts under article I, section 21, Florida Constitution. The district court recognized that in Lasky we held that the denial of the right to recover such damages did not violate this constitutional provision because the legislature had established a reasonable alternative. The court concluded, however, that subsequent changes in sections 637.736, 627.737, and 627.739 rendered the alternative no longer reasonable.

The two changes the district court was most concerned about were the lowering of the personal injury protection (PIP) benefits and the raising of the permissible PIP “deductible.” When we decided Lasky, section 627.736(1) provided for recovery of 100% of medical expenses and 100% or 80% of lost income depending on whether the benefits were to be included in gross income for federal income tax purposes. Chapter 77-468, section 33, Laws of Florida, amended that section reducing the benefits to 80% of medical expenses and 80% or 60% of lost income. Other provisions in the no-fault act when Lasky was decided required PIP coverage of $5,000, section 627.736(1), Florida Statutes (1971), with a maximum deductible of $1,000. § 627.739, Fla.Stat. (1971). In 1976 the legislature raised the maximum deductible to $2,000. Ch. 76-266, § 6, Laws of Fla. In 1977 it raised the maximum deductible to $4,000. Ch. 77-468, § 37, Laws of Fla. In 1979 the legislature raised the PIP coverage from $5,000 to $10,-000, ch. 78-374, § 3, Laws of Fla., and the maximum deductible from $4,000 to $8,000. Ch. 78-374, § 6, Laws of Fla.

The district court concluded that these changes meant that there was no longer a reasonable alternative for redress of injuries suffered in automobile accidents and said:

Injured parties no longer receive full compensation for their expenses or lost income. Increased deductibles result in decreased PIP coverage and diminish the likelihood that an injured party will promptly recover his major out-of-pocket expenses arising from the accident. Injured parties are now able and are being forced to resort to the courts to recover that portion of their damages not payable by insurance carriers by reason of the no-fault act — remaining uncovered expenses, lost income and deductibles. One of the most strident arguments in favor of no-fault type insurance legislation has been that the multitude of suits unnecessarily crowds the courts with injured persons’ lawsuits. This legislation does not reduce the number of lawsuits, then, but merely reduces the amount to be sued for. Of course, we cannot ignore the very practical consideration that some lawsuits will not be filed because they are not “worth it” but that is certainly not the way our society views redress for injured persons; the constitution and our very makeup requires every person to be redressed for wrongs against him.

404 So.2d at 357.

We do not agree with the district court’s conclusions about the statute. Lowering PIP benefits and increasing the amount of permitted optional deductibles will not necessarily result in reduced compensation and increased litigation. Many motorists of this state are covered by some other type of insurance or benefit program that would help pay for their medical expenses and lost income if they were injured in an automobile accident. The benefits from these collateral sources are often more than sufficient to pay for the expenses not included in the PIP coverage. Thus motorists entitled to these collateral benefits would receive full compensation without needing to file a suit.

Furthermore we do not find anything in Lasky to indicate that that decision was predicated upon a motorist’s being insured for the full amount of his medical expenses and lost income. Instead the crux in Lasky was that all owners of motor vehicles were required to purchase insurance which would assure injured parties recovery of their major and salient economic losses.

Thus, the owner of a motor vehicle is required to maintain security (either by insurance or otherwise) for payment of the no-fault benefits, and has no tort immunity if he fails to meet this requirement. This provides a reasonable alternative to the traditional action in tort. In exchange for his previous right to damages for pain and suffering (in the limited class of cases where recovery of these elements of damage is barred by § 627.737), with recovery limited to those situations where he he can prove that the other party was at fault, the injured party is assured of recovery of his major and salient economic losses from his own insurer.

Lasky v. State Farm Insurance Co., 296 So.2d at 13-14 (emphasis in original). Hence it was the fact that injured parties were assured prompt recovery of their major and salient economic losses, not all of their economic losses, which this Court found dispositive in Lasky.

The changes made by the legislature since then have not fundamentally changed this essential characteristic of the no-fault law. Although the percentage of recovery of medical expenses has been reduced to 80% and the percentage of recovery of lost income has been reduced to 60% or 80%, the absolute limits of PIP coverage have been increased from $5,000 to $10,000. Regardless of the actual amount of recovery, an injured person will receive prompt payment for his major and salient economic losses even where he himself is at fault. Thus the provisions of section 627.737 still provide a reasonable alternative to the traditional action in tort and therefore do not violate the right of access to courts guaranteed by article I, section 21 of the Florida Constitution.

DUE PROCESS OF LAW

The district court found that sections 627.736(1), 627.737(1), and 627.739(1), Florida Statutes (1979), unconstitutionally denied due process in that they did not bear a reasonable relationship to permissible legislative objectives. The district court explained:

The changes to sections 627.736, 627.737 and 627.739 noted above cause the 1979 no-fault act to no longer be reasonably related to several of the permissible legislative objectives noted in Lasky: (1) injured parties are able to initiate suits for expenses not payable by an insurer thereby obviating the objective of lessening court congestion; (2) the inability of injured parties to receive full compensation and the larger amounts of the deductibles increase the likelihood that injured parties will be forced into dire financial circumstances; (3) the provisions enabling injured parties to sue for that portion of their medical expenses and lost income not payable by an insurer causes it to be inordinately expensive to recover damages for these injuries; and (4) the provisions precluding full compensation for medical expenses and lost income but enabling suit for part of these damages establishes a slow and inefficient tort system for reparations.

404 So.2d at 358.

Again we note that the district court’s objections do not apply to those motorists who have additional insurance coverage. But even with respect to those motorists who do not, the district court’s conclusions are not correct. Under the new provisions the injured party still recovers most of his out-of-pocket expenses from his own insurer and is allowed to bring suit for the remainder. As the remaining amount subject to suit is drastically reduced from what it would have been if there had not been any no-fault coverage, the incentive to settle is greatly increased. The amount of PIP coverage that is provided is sufficient to prevent a party from being forced into dire financial circumstances and accepting unduly small settlements. Furthermore full compensation is provided in cases where the injured party himself is more than 20% at fault. Thus we find that in most instances the legislature’s objectives of insuring prompt recovery of expenses without protracted litigation are still being met.

The district court also found that increasing the permissible amount of deductible was discriminatory and oppressive against poor persons. The court reasoned that poor persons opting for the maximum deductible would be driven into dire financial circumstances if injured in an automobile accident. This argument is speculative. The purpose of raising the permissible amount of deductible is to prevent car owners who have some other type of insurance coverage from paying premiums for dupli-cative coverage. Purchasers of insurance contracts choose one of the optional deductibles and we should presume that they do so with knowledge of the consequences. This provision is reasonably related to the legislative objective of minimizing the cost of insurance in this state.

EQUAL PROTECTION

Finally, Dillon argues that the threshold provisions of section 627.737(2), which require some sort of permanent injury before a suit for pain and suffering can be brought, unconstitutionally deny him equal protection of the laws. The district court correctly followed Lasky in finding that these provisions did not deny plaintiffs their right to equal protection. Facing similar provisions the Court in Lasky found:

Likewise, then, the “permanent injury” threshold (as we shall refer to it) does not constitute a denial of equal protection of the laws. As we have noted above, a classification does not deny equal protection if it is reasonable and non-arbitrary, treating all persons in the same class alike, and the difference between those included in the class and those excluded from it bears a substantial relationship to the legislative purpose. [Citations omitted.] The classification here in question treats all persons permanently injured in a vehicular accident alike, thus meeting one element of the test. It is not arbitrary to differentiate between persons permanently injured and those who will recover from their injuries insofar as allowing only the former group to recover (under this particular threshold) for pain and suffering. Rather, this is a reasonable classification allowing those most likely to incur substantial and prolonged pain to recover damages to recompense them, while not granting such right of recovery to those substantially less likely to incur any prolonged pain.

Lasky v. State Farm Insurance Co., 296 So.2d at 19.

In conclusion, we find that sections 627.-736(1), 627.737, and 627.739 of the Florida Statutes (1979), do not violate the rights of access to courts, due process, or equal protection. Accordingly, we reverse the decision of the district court of appeal and remand this case with instructions that the trial court’s final judgment be reinstated.

It is so ordered.

OVERTON, ALDERMAN and MCDONALD, JJ., concur.

OVERTON, J., concurs with an opinion.

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

OVERTON, Justice,

concurring.

I concur but find that the act as amended is at the absolute outer limits of constitutional parameters, particularly in the amendment of section 627.736(1), Florida Statutes (1979), which reduced personal injury protection for medical expenses and loss of earnings.

SUNDBERG, Chief Justice,

concurring in part and dissenting in part.

Although I concur substantially with the majority opinion, I feel compelled to dissent from the holding that section 627.737(2), Florida Statutes (1979), is constitutional insofar as it eliminates all causes of action for intangible damages for nonpermanent injuries. Furthermore, I must observe that the provisions of section 627.736(l)(a) — (b), Florida Statutes (1979), reducing the medical expenses and lost income benefits come perilously close to “the outer limits of constitutional tolerance.” Carter v. Sparkman, 335 So.2d 802, 806 (Fla.1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 740, 50 L.Ed.2d 753 (1977). But because there is no bright line, we should defer to legislative judgment on the appropriateness or “fine tuning” of such benefits in the whole scheme of the act.

The complete elimination of any right of recovery of intangible damages for nonper-manent injuries is, however, quite another thing. In Lasky v. State Farm Insurance Co., 296 So.2d 9 (Fla.1974), this Court approved the $1,000 threshold limitation on recovery of intangible damages for nonper-manent injuries sustained in automobile accidents finding that it comported with due process and equal protection. No real analysis was made of infringement by the threshold provision on access to the courts guaranteed by article I, section 21, Florida Constitution. But complete elimination of the common law right to redress for such injury and damages requires that analysis now. When I apply the principles of Kluger v. White, 281 So.2d 1 (Fla.1973), I am compelled to the conclusion that section 627.737(2) violates article I, section 21 of our constitution by absolutely denying access to the courts to vindicate a prior existing common law right to recover intangible damages for nonpermanent injuries. This right is withdrawn without supplying any viable alternative just as was condemned in Kluger. If the right to intangible damages for nonpermanent injuries can be constitutionally eliminated then so too could the right to damages for permanent injuries. For this reason I dissent from the holding that section 627.737(2) is constitutional insofar as it prohibits recovery of intangible damages for nonpermanent injuries.

ADKINS, J., concurs.

      . 627.736 Required personal injury protection benefits; exclusions; priority.—
      (1) REQUIRED BENEFITS. — Every insurance policy complying with the security requirements of s. 627.733 shall provide personal injury protection providing for payment of all reasonable expenses incurred for necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices; necessary ambulance, hospital, and nursing services; and funeral and disability benefits to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in such motor vehicle, and other persons struck by such motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle, all as specifically provided in subsection (2) and paragraph (4)(d), to a limit of $10,000 for loss sustained by any such person as a result of bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle as follows:
      (a) Medical benefits. — Eighty percent of all reasonable expenses for necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, and necessary ambulance, hospital, and nursing services. Such benefits shall also include necessary remedial treatment and services recognized and permitted under the laws of the state for an injured person who relies upon spiritual means through prayer alone for healing, in accordance with his religious beliefs.
      (b) Disability benefits. — Eighty percent of any loss of gross income and loss of earning capacity per individual, unless such benefits are deemed not includable in gross income for federal income tax purposes, in which event such benefits shall be limited to 60 percent, from inability to work proximately caused by the injury sustained by the injured person, plus all expenses reasonably incurred in obtaining from others ordinary and necessary services in lieu of those that, but for the injury, the injured person would have performed without income for the benefit of his household. Ail disability benefits payable under this provision shall be paid not less than every 2 weeks.
      Any insurer providing medical or disability benefits which have been reduced under this section shall also provide a corresponding rate reduction to the insured in proportion to the reduction of benefits provided.
      (c) Funeral, burial, or cremation benefits.— Funeral, burial, or cremation expenses in an amount not to exceed $1,000 per individual.
      Only insurers writing motor vehicle liability insurance in this state may provide the required benefits of this section, and no such insurer shall require the purchase of any other motor vehicle coverage as a condition for providing such required benefits. Such insurers shall make such benefits available through normal marketing channels. Any insurer writing motor vehicle liability insurance in this state failing to comply with such availability requirement as a general business practice shall be deemed to have violated part VII of chapter 626, and such violation shall constitute an unfair method of competition or an unfair or deceptive act or practice involving the business of insurance, and any such insurer committing such violation shall be subject to the penalties afforded in such part, as well as those which may be afforded elsewhere in the insurance code.

      . 627.737 Tort exemption; limitation on right to damages; punitive damages.—
      (1) Every owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by ss. 627.730-627.741, and every person or organization legally responsible for his acts or omissions, is hereby exempted from tort liability for damages because of bodily injury, sickness, or disease arising out of the ownership, operation, maintenance, or use of such motor vehicle in this state to the extent that the benefits described in s. 627.736(1) are payable for such injury, or would be payable but for any exclusion or deductible authorized by ss. 627.-720-627.741, under any insurance policy or other method of security complying with the requirements of s. 627.733, or by an owner personally liable under s. 627.733 for the payment of such benefits, unless a person is entitled to maintain an action for pain, suffering, mental anguish, and inconvenience for such injury under the provisions of subsection (2).
      (2) In any action of tort brought against the owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by ss. 627.730-627.741, or against any person or organization legally responsible for his acts or omissions, a plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience because of bodily injury, sickness, or disease arising out of the ownership, maintenance, operation, or use of such motor vehicle only in the event that the injury or disease consists in whole or in part of:
      (a) Significant and permanent loss of an important bodily function.
      (b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
      (c) Significant and permanent scarring or disfigurement.
      (d) Death.
      (3) When a defendant, in a proceeding brought pursuant to ss. 627.730-627.741, questions whether the plaintiff has met the requirements of s. 627.737(2), then the defendant may file an appropriate motion with the court, and the court shall, on a one-time basis only, 30 days before the date set for the trial or the pre-trial hearing, whichever is first, by examining the pleadings and the evidence before it, ascertain whether the plaintiff will be able to submit some evidence that the plaintiff will meet the requirements of s. 627.737(2). If the court finds that the plaintiff will not be able to submit such evidence, then the court shall dismiss the plaintiffs claim without prejudice.
      (4) In any action brought against an automobile liability insurer for damages in excess of its policy limits, no claim for punitive damages shall be allowed.

      . 627.739 Personal injury protection; optional limitations; deductibles; optional methods of payment for repair work.—
      In order to prevent duplication with other private or governmental insurance or benefits for senior citizens and others with access to such insurance or benefits, each insurer providing the coverage and benefits described in s. 627.736(1) shall offer to the named insureds modified forms of personal injury protection as described in this section. Such election may be made by the named insured to apply to the named insured alone, or to the named insured and dependent relatives residing in the same household. Any person electing such modified coverage, or subject to such modified coverage as a result of the named insured’s election, shall have no right to claim or to recover any amount so deducted from any owner, registrant, operator, or occupant of a vehicle or any person or organization legally responsible for any such person’s acts or omissions who is made exempt from tort liability by ss. 627.730-627.741. Premium reductions for each modification or combination of modifications shall be adequate to recognize the reduction in hazard and shall be subject to the approval of the Department of Insurance.
      (1) Insurers shall offer to each applicant and to each policyholder, upon the renewal of an existing policy, deductibles, in amounts of $250, $500, $1,000, $2,000, $3,000, $4,000, $6,000 and $8,000, said amount to be deducted from the benefits otherwise due each person subject to the deduction, and shall explain to each applicant or policyholder that if they have coverage under private or governmental disability plans, they may avail themselves of deductibles or other modifications as provided in subsections (1), (2), and (3).
      (2) Insurers shall offer coverage wherein at the election of the named insured all benefits payable under 42 U.S.C. s. 1395, the federal “Medicare” program, or to active or retired military personnel and their dependent relatives shall be deducted from those benefits otherwise payable pursuant to s. 627.736(1).
      (3) Insurers shall offer coverage wherein at the election of named insured the benefits for loss of gross income and loss of earning capacity described in s. 627.736(l)(b) shall be excluded.
      (4) Insurers shall offer, at the election of the named insured, one of the following options:
      (a) Either a direct payment to the policyholder or a payment to any person, corporation, association, or other business entity which performs repair work upon the motor vehicle, or a combination of the foregoing; or
      (b) A payment to any person, corporation, association, or other business entity performing repair work upon the motor vehicle, when the payee is under contract with the insurer to perform such work at .stipulated rates which are no greater than 85 percent of prevailing rates for similar work within the county where the payee performs the work upon the motor vehicle.
      (5) Each insurer may prepare and distribute to each of its policyholders a listing of all business entities under contract with the insurer to perform motor vehicle repair work at the rates described in paragraph (4)(b) of this section. The listing shall include a clear and plain explanation of the options provided as required by this section, and shall further state that if the policyholder elects to have required motor vehicle repair work done by any such business entity, the rates stipulated in the contract with the insurer shall be all of the consideration which the business entity will demand for such work and shall be paid by the insurer.
      (6) Insurers may offer coverage wherein, at the election of the named insured, medical services shall be limited to specified medical providers, including hospitals, which specified medical providers may be health maintenance organizations, as provided in chapter 641, part II.


author: OVERTON, Justice.

text:
    Sheilah Kristine HILL, Petitioner, v. Thomas Jefferson HILL and A. C. Soud, Respondents.
    No. 59891.
    Supreme Court of Florida.
    April 29, 1982.
    Rehearing Denied July 9, 1982.
    Sharon H. Tanner, Jacksonville, for petitioner.
    William L. Coalson of Greene & Greene, Jacksonville, for respondents.
    Larry Klein, West Palm Beach, for the Academy of Florida Trial Lawyers.
    Elizabeth S. Baker, Miami, for Legal Services of Greater Miami, Inc.
    Roberta Fulton Fox of Gold & Fox, Coral Gables, H. Jack Klingensmith of Kuvin, Klingensmith & Lewis, South Miami, and Spencer Fox, Miami, for Cassandra Newby.
    Patricia Ireland, Miami, and Julia Dawson, North Miami, for Nat. Organization for Women in Florida and Florida Now.
    Judith Bass, Miami, for Florida Association of Women Lawyers.
    Frances M. Farina, Miami Shores, for Florida Women’s Political Caucus.
    Bruce Rogow, Fort Lauderdale, for American Civil Liberties Union Foundation of Florida.
    Dade County Advocate for Victims, Miami, and Forum, University of Miami, School of Law, Coral Gables, on brief for amici curiae.
   OVERTON, Justice.

This is a petition to review a decision of the First District Court of Appeal reported at 388 So.2d 625 (Fla. 1st DCA 1980), which affirmed, on the basis of our decision in Raisen v. Raisen, 379 So.2d 352 (Fla.1979), cert. denied, 449 U.S. 886, 101 S.Ct. 240, 66 L.Ed.2d 111 (1980), a summary judgment dismissing a wife’s action against her husband for malicious prosecution, false imprisonment, and abuse of process. The district court certified to us, as a question of great public importance, whether this Court should modify the doctrine of interspousal immunity, which bars recovery by one spouse against the other, to allow recovery for intentional torts.

Without question, there exists a concern by some members of the public with respect to the doctrine of interspousal immunity, especially where one spouse has been physically abusive of the other. The retention or elimination of interspousal immunity for intentional torts presents a difficult dilemma. We find on one hand that neither a wife nor a husband should be required to suffer physical abuse from their spouse without a suitable means of retribution. On the other hand, a means of recovery within the traditional tort system can seriously affect the family unit, family financial resources, and could result in multiple inter-related court proceedings.

We hold that the protection of the family unit and its resources requires us to answer the question in the negative and reject a change in the interspousal immunity doctrine at this time. In doing so, however, we emphasize that the trial judge in a dissolution proceeding has authority to require an abusive spouse to pay necessary medical expenses and the authority to consider any permanent injury or disfigurement or loss of earning capacity from such abuse when setting alimony. We also point out that in this circumstance we are unable to modify our immunity doctrine as we did with parental immunity in Ard v. Ard, 414 So.2d 1066 (Fla.1982), because insurance coverage is not available for intentional torts.

The present factual situation illustrates the need to retain the present immunity doctrine. This proceeding is the result of a tragic domestic relations custody dispute, complicated by the possibility that one spouse has a mental condition which may require treatment. The parties were married in August of 1972 and had a child in 1973. The wife had two children by a prior marriage. The parties separated in September, 1978, and have since had a contentious relationship concerning the custody of their minor child.

A dissolution proceeding was pending in another division of the circuit court when the wife instituted this action for malicious prosecution, false imprisonment, and abuse of process. Her complaint alleged that from time to time during the separation she would leave the marital home, taking the three children with her. In an effort to have her return home, the husband, upon locating the family, would forcibly remove the parties’ child from the wife’s custody and would threaten to obtain a divorce and sell the marital home. The wife alleged that she believed she could not retain custody in the city of the marital home and therefore moved herself and the children to Tennessee where they resided in a religious commune. The wife alleged that the husband and his attorney thereafter illegally subpoenaed her bank records to locate her. The husband then flew to Tennessee to again take custody of the child. The wife returned to Florida and, with several friends, visited the child at the marital home, at which time the husband called the police and had her vacate the premises. The final and principal allegation is that the husband sought to have her involuntarily committed for mental illness and that he succeeded in doing so for a one-day period. She asserted these actions were committed willfully and maliciously.

The husband responded with the affirmative defenses that his actions were done on the advice of counsel and that he had probable cause to have his wife committed. As grounds, he asserted that his wife had previously experienced a mental breakdown requiring her confinement in a straitjacket; that she had been previously committed for mental incompetency for three and one-half months; that she followed a charismatic movement, devoting much of her time to religious writing inspired by divine trances; and that she had destroyed a new television set, claiming it was an instrument of the devil, after which “she affixed a makeshift shrine which included a Bible, candles, and other paraphernalia having meaning only to her.” The husband claimed that he did not act maliciously but only for the safety and welfare of the parties’ five-year-old daughter. The husband supported his assertions in part with an affidavit from the family minister:

I am a minister, and I have talked with Mrs. Hill at the request of her husband. She appears mentally sick, which expresses itself in fanatic religious behavior. Believes God is speaking to her verbally. She annointed [sic] the cat with oil before the children. She feels her husband is demon possessed. Normally she is a very intelligent person, but has lost all prospective [sic] and responsibilities toward her children and family.

The record further reflects that the wife had a history of mental problems, having been declared incompetent and confined to a mental hospital prior to her marriage, and that, after the marriage, she was under the care of a psychiatrist and diagnosed as a paranoid schizophrenic. Further, at a deposition made part of the summary judgment proceedings, the child’s treating physician testified that in his opinion the wife posed a danger to the child and her husband.

The trial court granted summary judgment for the husband, finding that, under the interspousal immunity doctrine, one spouse cannot sue the other for tortious conduct committed during the marriage. The district court affirmed the summary judgment, expressly finding that the husband was immune from suit under this Court’s recent decision in Raisen v. Raisen. The court expressed the view, however, that clear distinctions existed between this cause and the situation presented in Raisen, specifically that: (a) suit was for an intentional tort rather than simple negligence; (b) the nature of an intentional tort action renders it a poor candidate for collusive claims; (c) the husband and wife were separated at the time of the alleged tort and were subsequently divorced; (d) the parties’ actions were themselves disruptive of marital harmony; and (e) no insurance was involved. The court then certified as a question of great public importance whether interspousal tort immunity should apply to an intentional tort.

On appeal to this Court, the wife first contends that the husband waived in-terspousal immunity by his alleged abuse of process. This contention is without merit and justifies no discussion. We also reject again the contention that the Married Woman’s Property Act has abolished the interspousal immunity doctrine in this state. Raisen; Bencomo v. Bencomo, 200 So.2d 171 (Fla.1967); Corren v. Corren, 47 So.2d 774 (Fla.1950). The principal contention of the wife and numerous amici is that we, as a matter of public policy, should overrule the doctrine of interspousal immunity or at least modify it to allow claims for intentional torts.

Interspousal tort immunity is a judicial doctrine established to protect the family unit. Historically, under Biblical, Roman, and English common law, the “family” has had certain responsibilities, obligations, and special protections. Many of these are presently contained in our constitution, statutes, and judicially established doctrines. For example, we acknowledge the obligations of spouses for child support, alimony , and, in the event of marriage dissolution, the fair division of property acquired during marriage. We also protect homestead property from creditors, prohibit garnishment of head of family wages, and safeguard the interest of surviving family members in a decedent spouse’s estate.

The family continues to be an unofficial sociological governmental structure necessary and vital to our free, independent society. We look with great concern upon societies that break up the family unit and entrust children to the state for education and training. Protection of the family unit is a significant public policy and we are greatly concerned by any intrusion that adversely affects the family relationship or the family resources. That is the reason we rejected abolition of the interspousal immunity doctrine in Raisen v. Raisen. We emphasize, however, that the purpose of the doctrine is to protect family harmony and resources, not to shield the wrongful acts of a spouse, whether negligent or intentionally tortious, and not to protect insurance companies.

As illustrated by the instant factual situation, intentional interspousal tort claims ordinarily arise in marital disputes which result in dissolution and which can adversely affect all family members, not just the spouses. For example, the wife in the present action seeks damages for her alleged improper commitment. The commitment, in turn, is directly related to the custodial dispute and the wife’s ability to care for her child. Consider, too, that section 61.08, Florida Statutes (1977), directs the trial judge in a dissolution proceeding to consider “the physical and emotional condition of the spouse” in determining the appropriate amount of alimony support. The wife’s mental and emotional condition could also be a critical issue in the determination of child custody.

The petitioner and amici contend that we should allow interspousal suits for intentional torts under the traditional tort system and under the same principles as with unmarried parties in civil litigation. We are cognizant that some jurisdictions have abolished the doctrine of interspousal immunity in its entirety, and that other jurisdictions have modified the doctrine for intentional torts.

Our concern is in what manner the abolition of this common law doctrine will affect the family unit, including children and the family resources. We conclude that the abolition would be detrimental to the family as a whole.

We choose not to place lawyers, judges, litigation costs, and the full trappings of an adversary tort system into a family dispute while the parties remain married. The ramifications of that type of action are not in any way conducive to a reconciliation. We recognize that intentional tortious conduct by one spouse against the other clearly shows marital disharmony and, in many instances of serious tortious conduct by one spouse against the other, a dissolution proceeding follows. If we accept petitioner’s and amici’s view, two courts would be necessary to resolve these types of disputes between a husband and wife, one court to determine the damages for the tort claim and one court to determine dissolution matters and child custody. Moreover, if we were to allow a separate proceeding for an interspousal intentional tort claim under our traditional tort system, a contingent attorney’s fee would realistically be necessary to provide counsel in the tort action. This, however, is inconsistent with the strong public policy of prohibiting contingent fees in domestic relation matters because such fee arrangements can adversely affect possible reconciliation. Sobieski v. Maresco, 143 So.2d 62 (Fla. 3d DCA 1962). Contingent fee arrangements in domestic relation matters are now deemed unethical. See Florida Code of Professional Responsibility, Ethical Consideration 2-20, Disciplinary Rule 2-106(C); see also The Florida Bar v. Winn, 208 So.2d 809 (Fla.1968). Further, we find that a separate tort action in an interspousal dispute could be used as simply a legal tool to achieve a better settlement in the dissolution proceeding.

In our view, it makes no sense to have different courts and separate proceedings determine inter-related issues between spouses. We find that the use of two court proceedings to resolve essentially one matter is neither efficient nor beneficial to the family unit, its resources, or possible reconciliation. The cost alone of multiple proceedings, even if reconciliation occurs, could adversely affect family resources and, in some instances, could substantially destroy family resources not only for the spouses but for their children as well.

We conclude that in Florida the protection of the family unit and family resources, including the needs of minor children, merits a continuation of the inter-spousal immunity doctrine for intentional torts. In reaffirming the doctrine, we have taken into consideration and emphasize the authority of the trial judge in a dissolution proceeding to direct the offending spouse to pay the necessary medical expenses not covered by insurance and the judge’s authority to consider any permanent injury, disfigurement, or loss of earning capacity caused by an intentional tort in establishing appropriate alimony under section 61.08, particularly that provision which provides “the court may consider any other factor necessary to do equity and justice between the parties.”

For the reasons expressed, we approve the decision of the district court of appeal in this case.

It is so ordered.

BOYD, ALDERMAN and McDONALD, JJ., concur.

SUNDBERG, C. J„ and ADKINS, J., dissent.

      . See art. V, § 3(b)(4), Fla.Const.

      . The wife also brought suit against the husband’s attorney, A. C. Soud, for malicious prosecution, false imprisonment, and abuse of process. The trial court granted summary judgment for the attorney on the former two charges but allowed the wife to amend her complaint as to the latter abuse of process charge. The district court affirmed. The wife sought no further review of the case’s disposition concerning the attorney and that issue is not before us.

      . For general background on interspousal and intrafamily protections, obligations, and immunities, see 1 W. Blackstone, Commentaries *441-45; J. Bryce, Studies in History and Jurisprudence ch. XVI (1901); A. Kocourek & J. Wigmore, Primitive and Ancient Legal Institutions chs. XV-XVI (1915); H. Maine, Ancient Law 147-54 (5th ed. 1875); H. Maine, Early History of Institutions 310-19 (1888); II F. Pollock & F. Maitland, The History of English Law ch. VII (2d ed. 1903); W. Prosser, Handbook on the Law of Torts ch. 23 (4th ed. 1971); II C. Sherman, Roman Law in the Modern World 56-64 (1917); R. Sohm, The Institutes §§ 90-107 (3d ed. J. Lediie trans. 1907); Couch, Woman in Eariy Roman Law, 8 Harv.L.Rev. 39 (1894); McCurdy, Personal Injury Torts Between Spouses, 4 Vill.L.Rev. 303 (1959); McCurdy, Torts Between Persons in Domestic Relation, 43 Harv.L.Rev. 1030 (1930); Williams, The Legal Unity of Husband and Wife, 10 Mod.L.Rev. 16 (1947); Woodward, Legal Evolution of Married Woman, 61 Alb.L.J. 213 (1900).

      . See §§ 61.08, .09, .11, .13, Fla.Stat. (1979) (responsibility of family support).

      . See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980) (property distribution at marriage dissolution).

      . See art. VII, § 6, Fla.Const. (homestead property exempt from taxation); art. X, § 4, Fla. Const, (protection of homestead property from forced sale).

        .See § 222.11, Fla.Stat. (1979).

      . See ch. 732, pts. I-IV, Fla.Stat. (1979) (protection of surviving spouse’s and children’s rights in decedent spouse’s estates).

      . See cases collected at 92 A.L.R.3d 901, § 13 (1979).

      . See cases collected at 92 A.L.R.3d 901, § 15 (1979).

      . Accord Valparaiso Bank & Trust Co. v. Sims, 343 So.2d 967 (Fla. 1st DCA 1977); Salter v. St. Jean, 170 So.2d 94 (Fla. 3d DCA 1964); McCarthy v. Santangelo, 137 Conn. 410, 78 A.2d 240 (1951); In re Fisher, 15 Ill.2d 139, 153 N.E.2d 832 (1958); Dannenberg v. Dannenberg, 151 Kan. 600, 100 P.2d 667 (1940); Baskerville v. Baskerville, 246 Minn. 496, 75 N.W.2d 762 (1956); State ex rel. Neb. State Bar Ass’n v. Jensen, 171 Neb. 1, 105 N.W.2d 459 (1960); In re Smith, 42 Wash.2d 188, 254 P.2d 464 (1953).


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Michael T. TARRANT, Respondent.
    No. 60748.
    Supreme Court of Florida.
    May 27, 1982.

      John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Paul A. Gross, Bar Counsel and Arno Kutner, Chairman, Grievance Committee 11 F, Miami, of The Florida Bar, for complainant.
    Julian S. Mack, Miami, for respondent.
   PER CURIAM.

We have for review the report and recommendation of the referee. No petition for review was filed. Jurisdiction is pursuant to article V, section 15, Florida Constitution.

We have summarized the complaint of The Florida Bar to the following allegations:

Count I

The respondent is a member of The Florida Bar and is subject to the jurisdiction and disciplinary rules of this Court.

Miss Linda Charles endorsed a cashier’s check in the amount of $13,467.73 to respondent’s trust account with the understanding that cashier’s checks payable to others would be returned to her.

Respondent gave Miss Charles checks to-talling $6,000, which were honored. The remaining checks given to Miss Charles were not honored due to insufficient funds. Despite her repeated requests to the respondent for the return of the funds she entrusted to respondent, she has not received any valid checks or cash from him. The funds now due Linda Charles amount to $7,467.73.

During the period of time in question, respondent repeatedly appropriated the trust account funds to his personal use.

By failing to apply funds entrusted to him toward the specific purpose for which they were received, respondent violated Fla.Bar Integr.Rule, art. XI, Rule 11.02(4).

Respondent has also violated Fla.Bar Code Prof.Resp., D.R. 1-102(A)(3), D.R. 1-102(A)(4) and D.R. 1-102(A)(6).

Count II

During September of 1979, Patricia Farmer and her husband, Charles E. Farmer, retained respondent to secure a dissolution of their marriage.

Respondent was paid by both parties for his services, and had arranged for a court hearing on the matter. At the hearing the judge declined to issue a Final Decree of Dissolution unless respondent obtained proof that Mrs. Farmer’s husband had been properly served.

After this hearing respondent ceased all contact with the Farmers and became inaccessible to them.

To the date of these findings respondent had not secured the dissolution for which purpose he was retained.

By reason of the foregoing, respondent violated Fla.Bar Code Prof.Resp. D.R. 6-101(A)(3) and D.R. 5-105(A).

Count III

During the period from about September, 1979, through about February, 1980, the respondent maintained a trust account, No. 44-0062836, at the First State Bank of Miami, Hialeah/Miami Springs Branch.

Respondent failed to identify deposits into the trust account, to show where the deposits came from, or from whom deposits were received.

Several checks written on the trust account were not identified as to the clients to whom or from whom the funds were disbursed.

No file or ledger was maintained containing an accounting for each person from whom or for whom trust money was received.

Fourteen checks drawn on respondent’s trust account were signed by him to cover office operating expenses or personal expenses.

Overdrafts of $57.81, $5,047.10, and $8.36 are shown on the above mentioned trust account.

By reason of the foregoing, respondent has violated Fla.Bar Integr.Rule, art. XI, Rule 11.02(4) and Fla.Bar Code Prof.Resp., D.R. 9-102(A), D.R. 9-103(B)(3), and D.R. 1-102(A)(4).

The findings of the referee are as follows:

After considering all the pleadings and evidence before me, pertinent portions of which are commented upon below I find:
Based upon the respondent’s ANSWER and his failure to Respond To The Request For ADMISSIONS, he has admitted all of the allegations in the Complaint.
On November 5, 1981, the undersigned granted the complainant’s Motion For Judgment On The Pleadings and Motion For Order Deeming Matters Admitted Due to Respondent’s Failure to Respond to Request For Admissions.
In brief, the respondent embezzeled $7,467.23 he was holding in his trust account for a Miss LINDA CHARLES and he received $400 from a Mr. & Mrs. FARMER to secure a dissolution of marriage which he never completed. In addition, the respondent commingled funds and paid personal financial obligations with trust account checks.

Based on his findings the referee made the following recommendations:

As to Count I
I recommend that the respondent be found guilty and specifically that he be found guilty of the following Violations of the Integration Rule of The Florida Bar and the Disciplinary Rules of the Code of Professional Responsibility to wit:
Article 11.02(4) of the Integration Rule of The Florida Bar, in that the respondent failed to apply trust funds entrusted him towards the specific purpose for which they were received.
Disciplinary Rule 1-102(A)(3)(4) and (6), since the respondent converted trust funds to his own use, engaged in illegal conduct involving moral turpitude which adversely reflects upon his fitness to practice law and he engaged in conduct involving dishonesty, fraud, deceit and misrepresentation.
As to Count II
I recommend the respondent be found guilty and specifically that he be found guilty of the following Violations of Disciplinary Rules of the Code of Professional Responsibility, to wit:
Disciplinary Rule 6-101(A)(3), in that he has neglected a legal matter entrusted to him and Disciplinary Rule 5-105(A) in that he had a conflict of interest in representing both husband and wife in a dissolution of marriage case.
As to Count III
I recommend that the respondent be found guilty and specifically that he be found guilty of the following Violations of the Integration Rule of The Florida Bar and Disciplinary Rules of the Code of Professional Responsibility, to wit:
Article 11.02(4) of the Integration Rule of The Florida Bar.
Disciplinary Rules 9-102(A), 9-103(B)(3) and 1-102(A)(4).

The referee has recommended that the respondent be suspended from practicing law for not less than three years. He has recommended that restitution to all persons to whom respondent owes money be a condition of reinstatement. As a further condition of reinstatement the referee recommended that respondent have the burden of proving that he is rehabilitated of any alcoholic or psychiatric problems and that he is fully qualified to practice law. Finally, respondent should be required to submit himself to a psychiatric examination by a psychiatrist selected by The Florida Bar.

We approve the recommendations of the referee. The respondent, Michael T. Tar-rant, is hereby suspended from the practice of law in Florida for three years. As a condition of reinstatement he shall make restitution to all persons to whom he owes money. Further, as proof of his rehabilitation, respondent will have the burden of proving that he is rehabilitated of any alcoholic or psychiatric problems and that he is fully qualified to practice law. Also, as part of the proof of rehabilitation, respondent must submit himself to a psychiatric examination by a psychiatrist selected by The Florida Bar.

Costs in the amount of $710.69 and any other costs that may have been incurred as a result of these proceedings are charged against the respondent. The suspension shall be effective June 28, 1982, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that respondent shall not accept any new business.

It is so ordered.

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


author: PER CURIAM. HERSEY, Judge. DOWNEY, Judge,

text:
    Ronald SPARROW and Robert Erwin Gayle, Appellants, v. STATE of Florida, Appellee.
    No. 81-623.
    District Court of Appeal of Florida, Fourth District.
    March 3, 1982.
    Rehearing Denied June 16, 1982.
    Yale T. Freeman of Freeman & Golden, P. A., Miami, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

DOWNEY, HERSEY and HURLEY, JJ., concur.

ON REHEARING

HERSEY, Judge.

Our original consideration of this appeal resulted in an affirmance without opinion. We are asked to grant a rehearing.

Appellants were charged with grand theft of $20,000.00 or more. The Information specifically alleged violations of Section 812.014(2)(a) and Section 812.014(2Xb), Florida Statutes (1979). The evidence showed that an amount in excess of $20,-000.00 was involved. There was no evidence as to any amount less than $20,000.00.

The charge to the jury included instructions on grand theft of an amount of $20,-000.00 or more and instructions on grand theft of a lesser amount. The jury convicted appellants of grand theft of an amount less than $20,000.00.

In their initial briefs and in the petition for rehearing appellants strenuously urge that the giving of an instruction on a lesser included offense not supported by any evidence is reversible error. They rely on Brown v. State, 206 So.2d 377 (Fla.1968), State v. Anderson, 270 So.2d 353 (Fla.1972) and particularly, State v. Paffy, 369 So.2d 340 (Fla.1979) in support of this proposition. We agree.

Grand theft of property valued at more than $100.00 but less than $20,000.00 is not, however, a lesser included offense. It is grand theft of the second degree, as defined in Section 812.014(2)(b), Florida Statutes (1979).

At the time of trial, Rule 3.490, Florida Rules of Criminal Procedure, provided:

If the indictment or information charges an offense which is divided into degrees, without specifying the degree, the jurors may find the defendant guilty of any degree of the offense charged; if the indictment or information charges a particular degree the jurors may find the defendant guilty of the degree charged or of any lesser degree. The court shall in all such cases charge the jury as to the degrees of the offense.

For that reason the instruction, rather than being erroneous, was mandatory. The rule has subsequently been changed (but that has no effect on this appeal) to read:

If the indictment or information charges an offense divided into degrees, the jury may find the defendant guilty of the offense charged or any lesser degree supported by the evidence. The judge shall not instruct on any degree as to which there is no evidence.

A sister court has similarly construed the former rule. In Parker v. State, 330 So.2d 148 (Fla. 2d DCA 1976) the court held:

The language of this rule has been construed to require the trial judge to instruct on all lesser degrees of the crime charged, regardless of whether they are sufficiently charged by the information or supported by the proof at trial. Killen v. State, Fla.1957, 92 So.2d 825; Brown v. State, Fla.1968, 206 So.2d 377. Under this rule, the responsibility of determining the degree of guilt “rests peculiarly within the bosom of the trial jury.” Brown v. State, Fla.1960, 124 So.2d 481. Instructions are mandated on all degrees simply because the rule “clearly requires it,”1 and authorizes “jury pardons” of the higher degree. Bailey v. State, Fla.1969, 224 So.2d 296.

(footnote omitted).

Such a result is also mandated by Brown v. State, supra, relied on by appellants. Again, in Gilford v. State, 313 So.2d 729 (Fla.1975) the supreme court made it clear that instructions on degrees of a crime are treated differently than instructions on lesser included offenses. The court stated:

In the Latin jargon we have always said, the probata must conform to the allegata. The one exception to this is the one which Brown recognizes, namely, Fla.Stat. § 919.14 (now CrPR 3.490) which has been fixed as the requirement in those instances where the offense is divided into degrees, without specifying the degrees, and in that instance the trial judge is mandated to instruct on such lesser degrees of a single offense. The distinction must be made between the one statutory instance of degrees without regard to proof and the basic proposition that there must be proof in all other instances in order to justify the “lesser included offense” charge being given. Any indications to the contrary in earlier decisions are hereby expressly overruled.

The precedential value of these cases in proceedings commenced after amendment of the rule has obviously been undermined but here, since the rule had not been amended at the time of trial, they apply with undiminished vigor.

For the foregoing reasons, the Petition for Rehearing is denied.

REHEARING DENIED.

HURLEY, J., concurs.

DOWNEY, J., dissents with opinion.

DOWNEY, Judge,

dissenting:

By court order oral argument was dispensed with in this case. In due course, after reading the briefs and considering the record, the panel of judges conferred on the disposition of the case and concluded the judgment should be affirmed without opinion.

We now have for consideration what appellants term a petition for rehearing, which in actuality suggests the case was given short shrift and takes the court to task for disposing of the case without writing an opinion. The function of a petition for rehearing is to point out to the court the points of law and fact that the court has overlooked or misapprehended. Fla.R. App.P. 9.380. Its purpose is not to reargue the merits of the case, express counsel’s disagreement with the result, or chastise the court for not writing an opinion. See opinion on rehearing in State v. Green, 105 So.2d 817 (Fla. 1st DCA 1958). While we appreciate that the parties and counsel would prefer an opinion in every case, and I concede that would be ideal, it is not possible in this jurisdiction in view of the volume of litigation the court is required to process.

It seems to me that appellants’ criticism has goaded the court into writing an opinion. Therefore, while I agree entirely with the substance of the majority opinion, rather than issue the opinion, I would strike the paper filed by appellants styled “Petition For Re-Hearing.”


author: MELVIN, WOODROW M. (Ret.), Associate Judge. FERGUSON, Judge

text:
    A. H. ROBINS COMPANY, INC., Appellant, v. Marjorie DEVEREAUX and Jack Devereaux, Appellees.
    No. 81-2481.
    District Court of Appeal of Florida, Third District.
    April 13, 1982.
    Rehearing Denied June 30, 1982.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble and James C. Blecke, Miami, for appellant.
    Sibley, Giblin, Levenson & Glaser and Marion E. Sibley, Miami Beach, Herskowitz & Grossman, Miami, for appellees.
    Before HUBBART, C. J., and FERGUSON, J. and MELVIN, WOODROW M. (Ret.), Associate Judge.
   MELVIN, WOODROW M. (Ret.), Associate Judge.

Appellant seeks reversal of the trial court’s order striking its defenses and directing that trial proceed on issue of damages only. The parties will be referred to herein as they appeared in the trial court.

Marjorie Devereaux and her husband, Jack Devereaux, brought suit against A. H. Robins Company, Inc., claiming compensatory and punitive damages for alleged negligence, liability, breach of contract, and conspiracy in the testing, manufacturing, sale and distribution of the Daikon Shield, an intra-uterine contraceptive device. The Defendant answered the complaint April 28, 1981, and the case was set for a two-week jury trial to begin January 18, 1982. A pretrial conference was scheduled for December 14, 1981, with discovery to terminate on that date.

On June 4, 1981, Plaintiff propounded interrogatories to the Defendant which were not answered in due season, and, on July 17, 1981, the Plaintiffs moved the Court to compel the Defendant to answer. This motion was set for hearing before the Court for August 11, 1981. In lieu of the hearing, there was an agreed order entered requiring the Defendant to answer the interrogatories with service on counsel to occur on or before September 1, 1981. This order was entered August 10, 1981.

The Defendant, having failed to answer the interrogatories as required by the agreed order, Plaintiffs on September 17, 1981, moved a second time to compel answers to the interrogatories, and that matter was set for hearing on September 24, 1981.

Thereafter, the Defendant untimely answered some of the interrogatories on September 17, 1981, and raised objections to answering certain of the remaining interrogatories. Thereafter, the Plaintiffs moved to compel the Defendant to answer, and this motion was set for hearing for September 24, 1981.

Again, the trial court entered an order of date September 28, 1981, requiring Defendant to answer those interrogatories to which objection had been presented, and required Defendant to comply with the Court’s order by October 9, 1981. Defendant then filed supplemental answer.

On October 15,1981, the Plaintiffs moved to strike defenses presented by the Defendant and, in the alternative, to compel more complete answers to interrogatories. This motion came on to be heard October 22, 1981.

We note here that the Defendant, because of the multitude of litigation concerning the product, had national counsel located in Virginia, who supervised its defense to all litigation in the nation. Trial counsel, as in the case here, would be employed for a particular case. Detailed information as to any subject pertinent to the interrogatories was in the file of the national counsel, and trial counsel was dependent upon that source for requested information.

The Court granted the motion to strike defenses. The record reveals the following to have transpired at the hearing:

“THE COURT: ... The matter has been set for a pre-trial conference, when?
MR. GROSSMAN: December 18th, I believe, judge.
THE COURT: December 18th?
MR. GROSSMAN: Somewhere like that, around that time. I believe we have a trial date for January.
THE COURT: Of January. I’m going to grant the motion for sanctions, strike the pleadings, enter a default against the defendant and try it on damages”

And, further:

“THE COURT: These people have not complied with discovery. They have not complied with two court orders and I just don’t have time for it.
MR. HOEY: I thought that we were in good faith in supplying this information, I really do, in answer to those questions.
THE COURT: Counsel, after not answering the interrogatories for sixty days, it would appear, and in two court orders, and in looking for it to provide the answers that have still not been provided, three court orders to do the same thing, I don’t go with it.” (Emphasis supplied.)

The Defendant thereafter filed a motion for reconsideration which the Court on November 12, 1981, heard and thereafter entered an order denying the motion. At the motion hearing the record reveals that the trial court had reviewed the file, heard and considered argument of counsel including Virginia counsel. The record then reveals the following observations by the trial court:

“THE COURT: I understand what you are saying. I guess what is in my mind is how many times does the Court have to order the same thing done before it is adhered to. Once ought to be enough....”

And further:

“(THE COURT:) ... I reviewed the record again and, I believe, that the questions asked, particularly with regards to the expert witnesses are indeed material. This matter is set by the pre-trial conference for I think — the pre-trial conference was set in this matter for December 14th, 1981, at 9:30. Discovery to be terminated as of that date. That’s about three or four weeks hence.
The defendant at this time (has) submitted what appears to be answers to interrogatories which, I guess, are about six months late.
Counsel, you tell me are you able to pursue discovery in light of the answers to interrogatories, and still keep the same trial date?
MR. GROSSMAN: Absolutely not.”

And further:

“THE COURT: ... I am going to deny the motion for re-hearing. I find that the questions were material. I find that they could have been answered and after two Court orders, I don’t see how a trial judge can administer a case if the orders of Court are not complied with and my ruling stands. The motion is denied.” (Emphasis supplied.)

It is noted that when Defendant’s motion for reconsideration was presented on November 12, it tendered answers to the interrogatories objected to, even though at the October 22, 1981, hearing the Defendant strongly contended that it was without the ability to procure such answers.

The Rules of Civil Procedure are designed to promote the orderly movement of litigation. The obvious result of the maneuvering by the Defendant to evade answering material interrogatories until the latest possible date was the necessity to postpone the pre-trial conference and the trial which had already been scheduled on the court’s calendar for an estimated time of two weeks.

The trial court found, based upon ample evidence, that A. H. Robins Company, Inc. was in effect playing games with the court and with the applicable Rules of Procedure. The docket of the Court was frustrated, judicial time wasted for no reason. Good faith was absent.

We realize that in a situation where a company transacting business on a national basis is faced with a multitude of litigation, there is need to have national counsel and such trial counsel for individual cases as it may wish. However, information may not be withheld from trial counsel that is relevant to giving timely answers to material interrogatories and then evade sanction penalty by claiming a lack of communication.

The trial court has by its order declined to be the victim of any such shell game tactics. This court in the recent case of Watson v. Peskoe, 407 So.2d 954 at 956 (Fla 3rd DCA 1982) and cases therein cited, held that whether to impose the sanction complained of is within the sound discretion of the trial court, and that such exercise of discretion will not be disturbed in the absence of a clear showing of abuse. The only abuse that appears from this record is the abuse inflicted by the Defendant upon the trial court, the Plaintiffs, and the applicable Rules of Civil Procedure.

The trial court did not abuse its discretion by entering the order appealed from, and such order is hereby AFFIRMED.

FERGUSON, Judge

(dissenting).

This appeal is from an order striking defensive pleadings for failure to timely comply with an order to supply answers to certain interrogatories.

Devereaux sued A. H. Robins Company, Inc. for compensatory and punitive damages for alleged negligence, strict liability, warranty and conspiracy in the testing, manufacture, sale and distribution of the Daikon Shield, an intrauterine contraceptive device. Affidavits established that the law firm of Blackwell, Walker, Gray, Powers, Flick & Hoehl acted as local counsel for Robins in the Daikon Shield intrauterine device litigation. The Richmond, Virginia law firm of McGuire, Woods & Battle served as national lead counsel for all Dai-kon Shield litigation. McGuire, Woods & Battle was responsible for coordinating all the pleadings and all the discovery in all Daikon Shield cases, including the answering of all complaints, answering interrogatories, coordinating depositions, and responding to requests for admissions.

On June 4, 1981, Devereaux propounded some sixty-seven interrogatories, many containing sub-parts, to Robins. On July 17, 1981, Devereaux moved to compel answers to the interrogatories and on August 10, 1981, an agreed order was entered providing that Robins would have until September 1, 1981 within which to file answers to the interrogatories.

Answers to the interrogatories were served on September 17, 1981. Of the sixty-seven interrogatories, five were objected to as being irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Robins also contended that answering the five interrogatories would impose an undue and oppressive burden. Upon receipt of the answers to the interrogatories, Devereaux moved to compel better answers. The motion was argued on September 24,1981 and the trial judge held that the objections were untimely and had therefore been waived. The five interrogatories sought information on all other claims or suits against Robins arising out of the manufacture and sale of the Daikon Shield. On October 7, 1981, Robins filed supplemental answers to the interrogatories in the form of a computer printout compiling thousands of claims and suits brought against Robins arising out of the manufacture and sale of the device. The computer printout was provided to counsel for Dever-eaux.

On October 15, 1981 Devereaux filed a motion to strike defenses and/or compel better answers to interrogatories. The motion was scheduled for hearing on October 22, 1981. At the hearing on the motion it was brought to the court’s attention that the computer printout provided the information requested in part but did not provide all of the detailed information requested such as the dollar amount of each out-of-court settlement. The trial judge granted the motion for sanctions, struck Robins’ pleadings and entered a default with trial to be held on damages alone. Robins also contends that the first time that local counsel realized that the computer printout was not responsive to certain subsections of the interrogatories was at the October 22, 1981 hearing where the court struck the defensive pleadings.

Robins filed a motion for reconsideration which was heard on November 12, 1981. Affidavits filed in support of the motion were served to explain the reason for delay in providing the requested information. Also, all the information which was subject of the discovery was provided in updated form. The motion was denied.

I believe this case to be controlled by this court’s opinion in Beaver Crane Service, Inc. v. National Surety Corp., 373 So.2d 88 (Fla. 3d DCA 1979), where it was held that it was an abuse of discretion to dismiss a complaint with prejudice for non-compliance with a court order requiring plaintiff to supply proper and complete answers to interrogatories which had been propounded in the course of extensive discovery proceedings where defendants had not demonstrated that they were prejudiced in any meaningful way by plaintiff’s tardiness. See, e.g., Santuoso v. McGrath & Associates, Inc., 385 So.2d 112 (Fla. 3d DCA 1980); Zayres Department Stores v. Fingerhut, 383 So.2d 262 (Fla. 3d DCA 1980). The record does not show a willful disregard of the court’s order and neither is there any demonstration that the plaintiffs were prejudiced in any way by the plaintiffs’ tardiness since trial of the cause was some three months away.

The striking of pleadings and entering of judgment of liability on non-compliance with an order compelling discovery is the most severe of all sanctions and should be employed only in extreme circumstances. Watson v. Peskoe, 407 So.2d 954 (Fla. 3d DCA 1982); Hart v. Weaver, 364 So.2d 524 (Fla. 2d DCA 1978). See also Ramos v. Sanchez, 375 So.2d 51 (Fla. 2d DCA 1979), where it was held that dismissal as a sanction for failure to comply with a court order for discovery is both harsh and extreme and should not be resorted to where a lesser sanction would suffice, particularly when non-compliance or violation is entirely the result of an attorney’s conduct and not the result of any conduct of the litigant. Where there is a delay in compliance with a discovery order which delay does not justify imposition of the most extreme of sanctions, as in this case, an appropriate sanction would be the imposition of costs or attorney’s fees or other damages to the opposite party. Catogas v. Sapp, 397 So.2d 1182 (Fla. 3d DCA 1981), Beaver Crane Service, Inc. v. National Surety Corp., supra; Ramos v. Sanchez, supra.


author: PER CURIAM. MILLS, Judge.

text:
    RITE-WAY WINDOWS & IMPROVEMENTS, INC. and Insurance Company of North America, Appellants, v. Bernard ROBBINS and the Division of Workers’ Compensation, Appellees.
    No. AE-48.
    District Court of Appeal of Florida, First District.
    April 14, 1982.
    Rehearing Denied June 16, 1982.
    Summers Warden, Miami, for appellants.
    Jay M. Levy of Silver, Levy & Hershoff, Miami, for appellees.
   PER CURIAM.

We affirm the deputy commissioner’s finding that claimant’s meningil encephalitis was causally related to claimant’s employment and is, therefore, compensable. We also hold the deputy did not err in admitting the declarations made by the claimant prior to his death. See § 440.-29(1), Fla.Stat. (1977).

However, we reverse the deputy’s order insofar as it awards temporary total disability benefits to the deceased claimant and awards the payment of medical bills of Dr. Stage, North Shore Hospital, Veteran’s Administration Hospital and the physicians practicing medicine at each institution in connection with this case.

Since the personal representative of the deceased’s estate was not substituted as a party for the claim for temporary total disability benefits, we dismiss the claim without prejudice so that a proper substitution may be made. B.E.C. Construction Corp. v. Gonzalez, 383 So.2d 1093 (Fla. 1st DCA 1980).

The award of payment of medical bills is reversed since these bills were never introduced into evidence. Decks, Inc. of Florida v. Wright, 389 So.2d 1074 (Fla. 1st DCA 1980); American Grinding and Equipment v. Rodman, 411 So.2d 917 (Fla. 1st DCA 1982).

Accordingly, the order is affirmed in part and reversed in part and remanded for proceedings consistent with this opinion.

MILLS, LARRY G. SMITH and SHAW, JJ., concur.

ON MOTION FOR REHEARING DENIED, CLARIFICATION GRANTED

MILLS, Judge.

Appellants’ and appellee’s motions for rehearing are denied. Appellee’s motion for clarification is granted.

This Court’s dismissal without prejudice of the claim for temporary total disability benefits was for the purpose of a proper substitution of parties. The entitlement to these benefits need not be relitigated.

LARRY G. SMITH and SHAW, JJ., concur.