text:
    Anthony ANTONE, Petitioner/Appellant, v. STATE of Florida, Respondent/Appellee.
    Nos. 61594, 61621 and 61622.
    Supreme Court of Florida.
    Jan. 28, 1982.

      Thomas D. McCoun, III of Louderback & McCoun, St. Petersburg, for petitioner/appellant.
    Jim Smith, Atty. Gen., George R. Geor-gieff, Asst. Deputy Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for respondent/appellee.
   PER CURIAM.

We have for our consideration a motion for stay of execution, a petition for writ of error coram nobis asking the Court to grant a new trial on grounds of newly discovered evidence, and an expedited appeal from a denial of two motions for post-conviction relief under Florida Rule of Criminal Procedure 3.850. The factual bases for the coram nobis petition are also included in the grounds of one of the motions for 3.850 relief. This Court originally affirmed the conviction and sentence of death in our decision reported as Antone v. State, 382 So.2d 1205 (Fla.), cert. denied, 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980). A detailed statement of the facts of this case is contained in that opinion. For the reasons expressed, we deny the relief requested and deny the motion for stay of execution.

In this consolidated proceeding, appellant seeks relief claiming (1) newly discovered evidence which assertedly is exculpatory and was withheld by the state in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); (2) the exclusion of certain prospective jurors contrary to the principles of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); (3) the warrantless arrest of appellant Antone in his home in violation of the principles announced in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); (4) multiple errors in the original trial; (5) ineffective assistance of counsel; and, (6) the failure of the trial court in the penalty phase to properly instruct the jury concerning the mitigating circumstances it could consider in making its recommendation to the trial judge. The trial court denied relief on the 3.850 motions after a full evidentiary hearing. In that proceeding, counsel for both parties agreed that the trial judge had no jurisdiction of the coram nobis application, that jurisdiction being solely in the Supreme Court of Florida.

The trial court, in denying relief on the issue of newly discovered evidence and on the assertion that the state improperly withheld exculpatory evidence, made the following factual findings:

This Motion was predicated on the testimony of one Robert Bruns. It can be said that Mr. Bruns was the witness that “cracked” the murder of Detective Cloud. One Benjamin Gilford began associating and, for a time, living with Mr. Bruns in Bradenton, Florida. He told Mr. Bruns that he was the person who had actually committed the Cloud murder and that this was but one of a series of murders that he had been hired to commit. It appears that sometime in February of 1976 Mr. Bruns was arrested on a traffic offense. During this incarceration, he made contact with law enforcement officers and reported to them what Gilford had told him. Bruns was asked to assist the F.B.I. and State officials in obtaining more information pertaining to the Cloud murder. To this end he agreed to have electronic monitoring devices placed on his person, home and van. This was done for some three days beginning February 21, 1976. Subsequently, Gilford was arrested and charged with the murder. Thereafter, Ellis Marlow Haskew and Anthony Antone were arrested.
The difficulty began, it appears, after the Governor signed Antone’s death warrant. Bruns contacted Attorney Ferlita and in a deposition told Messrs. Ferlita and Nutter that Gilford had told him that while Antone did provide the money after the murder that Antone did not know anything about the Cloud murder until after it had occurred; that when he learned why Victor Acosta had given him this money he became upset and hesitated in making the payment. This deposition was attached as an Exhibit to the Motion filed by Messrs. Ferlita and Nutter wherein they contended that the State had withheld exculpatory evidence from the defense and had violated Rule 3.220(a)(l)(i) in not listing Bruns as a witness pursuant to a defense demand for discovery.
Numerous witnesses testified before me at this hearing, among them Bruns, E. D. Williams of the Tampa Police Department, David Malarney and Jim Blatley of the F.B.I. and Aaron Bowden, the Attorney who prosecuted the case in behalf of the State of Florida.
While continuing to insist that Gilford had told him that Antone did not know anything about the Cloud murder until after it occurred, Bruns readily admitted that he never told any law enforcement official, either State or Federal, of this fact. His testimony was that since his conversations with Gilford were monitored and recorded they must have heard it. Prior to the hearing, copies of the tape recordings were delivered to Messrs. Ferlita and Nutter. From the testimony and representations made to this court it is manifest that the recordings were inaudible. None of the witnesses who testified that they participated in the monitoring of the conversations between Gil-ford and Bruns could testify that they heard any such conversations primarily because the conversations were difficult to hear while they were monitoring.
Furthermore, Bruns testified that prior to his being equipped with those monitoring devices, he talked with Agent David Malarney of the F.B.I. on February 20, 1976. Agent Malarney testified that on that date and time Bruns told him that Gilford had related to him that Haskew and Gilford were hired to do the shooting by an individual known to Gilford as “Anthony” and that “Anthony” had supplied the murder weapon. While Gilford did not know who Anthony was, he did have his telephone number. Agent Ma-larney testified that when Gilford was arrested he had on his person a telephone number to an “Anthony” which turned out to be Anthony Antone.
E. D. Williams of the Tampa Police Department also testified that in a conversation with Bruns, Bruns related that Gilford had told him that the murder had been set up by one “Anthony.”
Aaron Bowden, the Attorney who prosecuted the case for the State of Florida, admitted that Bruns’ name was not placed on any witness list, but stated that there was no malicious purpose behind this. His reasoning was first, that Bruns’ testimony while incriminating Antone was inadmissible because rank hearsay; and, second, because he was not aware of any exculpatory or favorable evidence to Antone that Bruns could provide. Bruns’ name was apparently listed as a witness in the case against Benjamin Gilford because his deposition was taken on June 2, 1976 by Mr. Richard C. Edwards, Assistant Public Defender, representing Gil-ford.

Upon these facts, the trial judge ruled as follows:

1. That prior to the trial of Anthony Antone and until such time as Robert Bruns made the above described disclosures to Messrs. Ferlita and Nutter, no State or Federal official was aware of any possible exculpatory or favorable evidence that Mr. Bruns could provide in behalf of the defendant, Anthony Antone; thus neither the precepts of Brady v. Maryland, 373 U.S. 831, 83 S.Ct. 1194, 10 L.Ed.2d 215 nor any of its progeny were violated. Furthermore, I find, in view of the questionable admissibility of Bruns’ testimony and in view of the overwhelming evidence produced at defendant’s trial, that even if there had been, which there was not, a specific request for this evidence there is no reasonable likelihood that it could have affected the outcome of the trial or sentence. See United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).
2. That while there was a technical violation of Florida Rule of Criminal Procedure 3.220(a)(1)(i), the violation was not wilfull or malicious and the defendant Antone was not harmed nor prejudiced by this violation. Bruns was not used as a witness by the State. The admissibility of his alleged exculpatory testimony is highly questionable and even if it would have been admissible it is patently unbelievable in view of all of the facts surrounding this case. Consequently, as with the alleged “Brady” violation, I find that even if his name had been furnished to the defense under the rules of discovery, there is no likelihood it could have affected the outcome of the trial or sentence.

The trial judge further determined that counsel was reasonably effective, finding:

1. That Anthony Antone was represented by reasonably competent and effective counsel and did in fact receive in preparation of, and during the course of his trial, effective assistance of counsel. In making this finding, I am cognizant that his was a capital case and am considering this fact in my overall determination of this finding. Washington v. Watkins, 655 F.2d 1346 (5th Cir. 1981).
2. That his counsel did not render ineffective assistance by virtue of not having requested a change of venue inasmuch as this was a considered decision between attorney and client, Catches v. United States, 582 F.2d 453 (8th Cir. 1978), Reynolds v. Mabry, 574 F.2d 978 (8th Cir. 1978); nor do I find from the evidence presented or a review of the record that counsel was ineffective with respect to Witherspoon. My perusal of the record discloses that each and every juror that was excused for cause was justifiably excused.

The trial judge concluded by rejecting the contention that the recent United States Supreme Court decision in Payton v. New York, decided four years after Antone’s trial, required a reversal for a new trial and by finding that the other contentions were not proper for collateral relief since they dealt with issues which could have been raised on the initial appeal before this Court.

We are in total accord with the findings of the trial judge and commend him for the manner in which he detailed his reasons in his order. Because of the nature of this proceeding, we deem it appropriate to fully discuss the principal issue argued concerning the asserted newly discovered evidence which the witness Robert Bruns brought to the attention of the attorneys for appellant Antone, and the resulting assertion that the failure of the state to disclose Robert Bruns as a witness was a fatal error under Brady and our rules of criminal procedure requiring a reversal and a new trial.

The testimony of the newly discovered witness, Bruns, is accurately reflected in the trial court’s findings. It is clear that Bruns never told any law enforcement official, either state or federal, that Gilford told him that Antone only participated in the murder after the fact and that Antone’s only involvement was reluctantly paying the money after Cloud was killed. These conversations allegedly occurred on or about February 20, 1976, and Bruns testified by deposition in Gilford’s proceeding. Gilford pleaded guilty in June of 1976, and, one month later, committed suicide. Appellant’s trial commenced on August 23, 1976.

It was clearly established in three separate parts of the testimony of Haskew, the state’s primary witness in Antone’s original trial, that Victor Acosta was the moneyman who wanted the victim, Detective Cloud, killed. First, Haskew testified that Antone had told him that Victor Acosta wanted five people killed when he asked Haskew to come to Tampa. Next, Haskew testified that Antone had called Haskew to his house and asked him to try out a .32 automatic with a silencer that Acosta had furnished Antone. And, finally, Haskew testified that ten days prior to the murder Antone had told him that Acosta was insistent that Cloud be killed because he was afraid that Cloud was going to be reinstated as a police officer.

The original trial testimony establishes that Antone hired Gilford and Haskew to kill Detective Cloud, directed them to Cloud’s residence, furnished them with a pistol with a silencer which was packed with fiber from an air-conditioning filter found at Antone’s home, and that Antone had this weapon tested in his home by having it fired into a couch in his den. These facts, established by Haskew’s testimony, were corroborated by the presence of a bullet in the couch which matched the bullet that killed Detective Cloud and by the discovery in Antone’s shed of blue air-conditioner filter fiber which matched that used in the silencer. Bruns’ testimony that Antone was the middleman was not new evidence; that fact had been established during the course of the original trial testimony. Antone was a middleman who organized, set up, and masterminded the actual killing.

The claim that Gilford told Bruns that Antone didn’t know about the killing until after it occurred .was not known by the enforcement or prosecutorial officials. Further, it was not even asserted as a defense in the trial or penalty phase that Antone was only a participant after the fact. An examination of the entire record in this case, particularly an examination of appellant’s own testimony, reflects that this was not the theory of the defense. Appellant Antone not only denied having “anything to do with the Richard Cloud killing,” but also, in his direct testimony, responded to the question, “... did you ever meet or know a man by the name of Buck Gilford?”, by answering, “No, I’ve never met him.” In effect, what appellant Antone is attempting to do in this proceeding is to offer, through the testimony of Bruns, the statement of Gilford to impeach his own testimony and to change totally his theory of defense.

In addition, Gilford, whose statement was simply repeated by Bruns, committed suicide prior to this trial and, consequently, the admissibility of Bruns’ testimony under these circumstances is questionable. Assuming that it would have been admissible in either the trial or penalty phase, given the totality of the evidence in the original case, we find that this newly discovered evidence still does not meet the test of coram nobis which requires “that the alleged facts must be of such a vital nature that had they been known to the trial court, they conclusively would have prevented the entry of the judgment.” Hallman v. State, 371 So.2d 482, 485 (Fla.1979).

Next, with reference to the asserted failure of the state to advise Antone of this allegedly exculpatory evidence, we fully agree with the finding of the trial judge that the state did not have knowledge of Gilford’s statement to Bruns regarding Antone’s ignorance of Cloud’s murder until after it occurred and his after-the-fact participation in paying the money. The ruling of the trial judge is supported by the evidence, and we find there was no actual suppression of favorable evidence by the state. The law is clear that in the absence of actual suppression of favorable evidence, the prosecution does not violate due process by denying discovery. Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The next issue raised concerns a violation of our criminal rules of discovery. We recognize that under Florida Rule of Criminal Procedure 3.220, the prosecutor is required to disclose to defense counsel the names and addresses of all persons known to the prosecutor to have “information which may be relevant to the offense charged, and to any defense with respect thereto.” Our rule of discovery is a procedural rule which requires reciprocal action by the defendant as well as the prosecution, and it has been approved by the United States Supreme Court. Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). The purpose of this procedural discovery rule is to make our criminal justice system more efficient by avoiding multiple adversary pretrial evidentiary hearings previously used by defendants to obtain discovery information.

The issue on this point is whether the failure to disclose the name of the Witness Bruns was so prejudicial that it requires a vacation of the judgment and sentence. Although the trial judge found that Bruns’ name should have been made known to the defense under our procedural rule, we find that the appellant was not prejudiced in his defense by the lack of this information. We note that the person making the statement was dead at the time of the trial and that Antone denied at the trial ever having known him. Under the circumstances of this case, we find neither a constitutional violation of the Brady doctrine nor prejudice to appellant by the procedural violation of our discovery rules.

The claim by appellant that the prosecution excluded all jurors with death penalty scruples by using both its peremptory challenges and its challenges for cause, thus circumventing the principle established in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), is without merit. Dobbert v. State, 409 So.2d 1053, (Fla.1982). Any issue concerning this specific jury selection could have been raised in Antone’s first appeal to this Court, and this is not a matter that will support a collateral attack. Spenkelink v. State, 350 So.2d 85 (Fla.), cert. denied, 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977); Sullivan v. State, 372 So.2d 938 (Fla.1979).

Appellant further contends that the judgment and sentence are unconstitutional because Antone was arrested without a warrant in his residence, contrary to the decision of the United States Supreme Court in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Appellant argues that, even though Payton was decided four years after appellant’s conviction and sentence, the law announced in that case should be given retroactive application. First, it should be noted that Payton is distinguishable from the instant case. In Payton, the officers acted without a warrant and, after breaking into Payton’s home looking for him, saw and seized incul-patory evidence that appeared in plain view. Payton was not even present at the time. In the instant case, although Antone was arrested without a warrant in his own home, nothing was seized at the time of his arrest. The seizure of items within the premises was accomplished under a search warrant based almost entirely on information acquired prior to Antone’s arrest. Further, we believe that our decision in Witt v. State, 387 So.2d 922 (1980), controls and that Payton is not a “change of law” which requires retroactive application.

The multiple asserted errors made by the trial court in the original proceeding are matters that could have been raised in the first appeal to this Court and do not support a collateral attack. Spenkelink; Sullivan. We also reject the claims of ineffective assistance of trial and appellate counsel. For the purposes of this proceeding, we treat the issue of ineffective assistance of appellate counsel as a petition for writ of habeas corpus. After another careful review of the record, we find that there was no substantial deficiency of counsel in either the trial or appellate portion of this cause. Under the test we enunciated in Knight v. State, 394 So.2d 997 (1981), this appellant was provided reasonably effective assistance of counsel in all stages of this proceeding.

Finally, appellant asserts that the trial court limited jury consideration of mitigating factors to those set forth in the statute. From our review of the record, no limitation was placed on appellant at the time of the original trial, and no showing has been made that he was denied an opportunity to present to the jury any mitigating evidence. The appellant did not request that any additional mitigating factors be included in the instructions, and the standard jury instruction in force at the time of trial was presented without objection. That instruction did not expressly limit the mitigating factors to those identified in the statute. Again, this was an issue that could have been raised in appellant’s first appeal to this Court and is not a matter which may support collateral attack. Spenkelink; Sullivan.

The petition for writ of coram nobis is denied, and the order of the trial court denying appellant Antone’s motions for 3.850 relief is affirmed. We also deny the claim of ineffective appellate counsel, which we treat as habeas corpus. Finally, the motion for stay of execution is denied. No motions for rehearing will be entertained.

It is so ordered.

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


source: Caselaw Access Project

author: FERGUSON, Judge. SCHWARTZ, Judge. FERGUSON

license: Public Domain

text:
    Wallace Jerome PORTER, Appellant, v. The STATE of Florida, Appellee.
    No. 79-822.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 1981.
    On Rehearing Feb. 25, 1982.
    Bennett H. Brummer, Public Defender, and David Hertzig, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   FERGUSON, Judge.

After a jury trial, appellant, Wallace Jerome Porter, was adjudicated guilty of first-degree murder and kidnapping and sentenced to two consecutive terms of life imprisonment. Porter appeals claiming error as to four points. We reverse.

Porter was brought to the Public Safety Department building on June 6, 1977 by Detective Derringer for questioning with respect to the death of Charley Tyrone Haggins. Porter was not given his Miranda rights. He testified that he was beaten during this interview.

On September 18, 1977, Detectives Ger-gen and Derringer stopped Porter while he was driving his automobile and asked him for his driver’s license. When Porter failed to produce his license, he was arrested, taken to the Public Safety Department building and questioned by Gergen. Porter testified that he was told to give a statement or he would be arrested on the charge and that he was instructed how to answer questions that would be asked him in the presence of a stenographer. Porter was advised of his rights. Porter also testified that during this interview of nearly five to six hours, he was beaten, punched in the stomach, hit in the head with telephone books, struck in the face and chest by Gergen’s elbow, and that the detectives pulled down his undershorts and shot rubber bands at his penis. He further testified that a broom handle was broken over his head, a gun pointed to his forehead, a burning substance sprayed in his face as he stood handcuffed in a corner with his undershorts covering his face. Porter was released from police custody “around 11:00 P.M.” and was seen at Hialeah Hospital one minute after midnight. This testimony of physical abuse was supported by evidence as to the physical condition of Porter when he returned home and by medical records from Hialeah and Jackson Memorial Hospitals where Porter subsequently went for treatment. . The physician who examined Porter on the night of September 18th was called by the state as a rebuttal witness. He agreed that defendant’s injuries to the face and abdomen were consistent with a recent beating.

On November 5, 1977, Detective Gergen obtained an arrest warrant and again arrested Porter, taking him to a homicide office where he was held for nearly nine hours. Porter testified that he was handcuffed, slapped, had the barrel of a pistol pushed into his nostril, and was further physically abused by Gergen who pulled hairs out of his moustache and chin over a two-hour period. He testified also that he was given his Miranda rights, but signed the waiver form to avoid further beatings. On the basis of additional statements made at that time, Porter was jailed on murder charges.

Four days later, Porter first saw his attorney, Robert Gross, who advised him not to talk to police without his presence and wrote Porter a note explaining that Porter did not wish to be questioned or to submit to a polygraph test without the presence of Gross. Later that day detective Gergen took Porter from the county jail for the purpose of having him submit to a polygraph examination. Porter handed him the note from Gross. Gergen read the note. Porter testified that Gergen told him that Gross would not represent him at the trial and would not let him call the attorney and that he signed a second waiver form because he was afraid that he would be attacked again. After the polygraph exam, Porter was taken back to the homicide office by Gergen, signed another waiver form, and gave additional statements to Gergen.

Detective Gergen testified that he did not physically abuse the defendant. There was also testimony by the reporter who recorded the statements from Porter on June 6, 1977, September 18, 1977 and November 10, 1977 that she did not remember anything out of the ordinary insofar as Porter’s physical condition and recalled no comments made about his condition. The polygraph examiner testified that there was nothing about Porter’s appearance that would lead him to believe that Porter had been physically abused.

The five statements given by Porter as to events immediately preceeding the victim’s death and his role in the gang slaying all vary — the first being completely exculpatory and the last being a confession. Porter’s accounts of the victim being beaten in the head or face with a baseball bat and pistol are not supported by findings of the medical examiner who examined the body of the victim. The confession is the only evidence which linked Porter to the homicide.

As his first point on appeal, Porter claims the trial court erred in denying his motion to suppress the statements he made at the various questionings. Since appellant agrees that the admissibility of the statement taken at the questioning on June 6, 1977 may not have been preserved at trial and is not fundamental to the case, we give our attention to the statements of September 18, 1977, November 5, 1977 and November 10, 1977. We find the statements of September 18, 1977 and November 5, 1977 inadmissible because they were not voluntarily made. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (American system of justice demands that the government seeking to punish an individual produce the evidence against him by its independent labors rather than the expedient of compelling it from his own mouth); Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940) (conviction of petitioner solely upon confessions and pleas extorted by violence and torture is a denial of due process and equal protection); Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936) (confession shown to have been extorted by state using brutality and violence inconsistent with due process). The state is required to establish voluntariness by a preponderance of the evidence. Brewer v. State, 386 So.2d 232 (Fla.1980). On this record, especially in light of the independent medical evidence presented by both sides tending to corroborate Porter’s testimony, we hold the state has failed to establish the requisite voluntariness. In addition, we specifically find that the statements obtained from Porter November 10, 1977 are inadmissible because the statements were taken after Porter invoked his right to counsel. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

Though we reverse on the first point, we address the other issues so as to guide the trial court in the retrial of the case. As the second point on appeal, Porter claims that the State failed to prove, apart from appellant’s statements and confessions, the corpus delecti in that the body was not adequately identified. We find this claim to be without merit.

As the third point on appeal, Porter claims that the trial court erred in failing to compel production of the police report of Officer Blyth because Officer Blyth was listed as a witness and the report was subject to discovery under Florida Rule of Criminal Procedure 3.220(a)(1)(i). Unfortunately, the written demand for discovery was not made part of the record on appeal so we are unable to determine whether that demand was sufficiently specific in limiting the request for the documents as required by State v. Dumas, 363 So.2d 568 (Fla.3d DCA 1978), cert. denied, 372 So.2d 471 (Fla.1979). Our reversal on the first point raised by appellant makes it unnecessary for us to issue an order directing a party to supply the omitted part of the record under Florida Rule of Appellate Procedure 9.200(f)(2), effective January 1, 1981.

As the fourth point on appeal, Porter claims that the trial court erred in sentencing defendant to two consecutive sentences for crimes which arose out of the same transaction. Defendant claims that in this case the murder was not premeditated, therefore, he could have been convicted for the crime of first-degree murder only on the basis of the kidnapping felony. If on retrial, there is no evidence of premeditation and the kidnapping charge is the sole basis for a verdict of first-degree murder, Porter may be convicted but not sentenced for both first-degree murder and kidnapping. If there is evidence of premeditation and kidnapping, Porter may be convicted and sentenced for both first-degree murder and kidnapping. State v. Hegstrom, 401 So.2d 1343 (Fla.1981); State v. Pinder, 375 So.2d 836 (Fla.1979); Borges v. State, 394 So.2d 1046 (Fla. 4th DCA 1981); § 775.-021(4), Fla.Stat. (1979).

Reversed and remanded for new trial.

ON MOTION FOR REHEARING

SCHWARTZ, Judge.

On consideration after oral argument of the state’s motion for rehearing of our decision and opinion of November 17, 1981, we adhere to the conclusion that the judgment must be reversed for a new trial because the confessions of November 9-10, 1977 were, as a matter of law, invalidly obtained contrary to the strictures of Edwards v. Arizona, 450 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

We have concluded, however, that we were unjustified in requiring suppression of the statements of September 18, 1977 and November 5, 1977 on the ground that they were the product of physical brutality by the police. Our review of the record reveals that whether any such abuse took place was the subject of sharply conflicting testimony, which was solely for the trial judge and then the jury — and decided-. ly not this court — to resolve. Tibbs v. State, 397 So.2d 1120 (Fla.1981); Stone v. State, 378 So.2d 765 (Fla.1979), cert. denied, 449 U.S. 986, 101 S.Ct. 407, 66 L.Ed.2d 250 (1980); Stanford v. State, 110 So.2d 1 (Fla.1959); Holland v. State, 39 Fla. 178, 22 So. 298 (1897).

But the record also shows that the trial court did not in fact make its determination on this question with the “unmistakable clarity” required by the Constitution. Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967); Peterson v. State, 382 So.2d 701 (Fla.1980); see generally, Dino v. State, 405 So.2d 213, 216 (Fla.3d DCA 1981) (Pearson, J., dissenting). Indeed, in ruling on the motion to suppress the court was almost exclusively concerned with the difficult Miranda issues surrounding the November 9-10 statements, so that the brutality question relating to the earlier statements was not directly decided at all. On this point, the court said only:

There was ample evidence before this Court to indicate that on three prior occasions, at least three prior occasions, he never made any inculpatory statements despite the fact he was physically abused, to which there is also a substantial question as to whether or not he was physically beaten.
The doctor testified that he didn’t find any objective symptoms of that alleged beating. It was all subjective.

Since it can hardly be said that this statement constitutes a clear-cut determination of voluntariness concerning the statements of September 18 and November 5, Sims v. Georgia, supra; Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Peterson v. State, supra, there must be a new hearing and a proper ruling on the motion to suppress these statements prior to Porter’s retrial. Greene v. State, 351 So.2d 941 (Fla.1977); Land v. State, 293 So.2d 704 (Fla.1974).

In every other respect we readopt the court’s opinion of November 17, 1981.

FERGUSON

(dissenting to rehearing).

I agree that statements obtained from Porter on November 9-10, 1977 are inadmissible because they were taken after he had invoked his right to counsel but disagree that there is a need to retreat from our initial determination that the statements of September 18, 1977 and November 5,1977 were the product of physical brutality by the police. In light of the decision by two members of the court that suppression of the confessions was unjustified I would supplement the original opinion.

After an admitted pretext arrest on September 18, 1977 for failure to produce a driver’s license Porter was taken to police headquarters by Detective Gergen for a second time and interrogated for five to six hours. Detective Gergen concluded taking a statement from Porter then transported him back to his neighborhood after 11:00 P.M. — not to where he lived, nor to where his car had been left. He was seen by Dr. Goellner in the emergency room at Jackson Memorial Hospital one minute after midnight.

There is no record evidence which disputes the testimony of Porter, his mother, sister, three other eyewitnesses, and the physician called by the state that after release from police custody on September 18, 1977 Porter had a bloodied mouth and facial swelling.

Pertinent parts of the doctor’s testimony appear in cross-examination at page 814 of the record:

Q. [By Mr. McWilliams] It was a cut on his lip?
A. [Dr. Goellner] Yes, sir.
Q. And it was open?
A. Yes, sir.
******
Q. All right. You did note on your diagnosis that there was abdominal wall trauma, correct?
A. Yes.
******
Q. Now, you also said — and you diagnosed that there was soft tissue trauma to the nose. Doctor, what is the soft tissue in the nose? Where is it?
A. The soft tissue in the nose is the skin, the layer of fibrous tissue underneath the skin. It does not include the bone, the nasal bones, and it does not include the cartilage in the nose.
Q. Now, doctor, even though the patient had told you about being beaten, you wanted to check if there were any signs of this, correct?
A. That’s correct.
Q. And in order to make your diagnosis of soft tissue trauma to the nose, first of all, you looked at the nose, correct?
A. Yes, sir.
Q. And second of all, you touched to check for reactions as to tenderness, correct?
A. Yes.
Q. And it was your diagnosis, based upon what you saw and the tests that Wallace Porter did indeed have injury to the soft tissue in his nose, right?
A. Yes, sir.

[Recross Examination at page 821]

Q. Doctor, on the word “voluntary”, if the patient had been struck by somebody in the stomach, to produce the injuries that you observed, you still would have used the term “voluntary” guarding, correct?
A. That’s correct.
Q. What that means is the patient’s reaction upon being touched, correct? As opposed to involuntary, a spasm over which there is not control whether you touch it or not.
A. Yes, sir.
Q. Sir, it doesn’t mean you thought he was faking, right?
A. What you say is correct, it does not mean he was faking.
Q. In fact, it was your impression that there was soft tissue trauma to the abdomen and to the nose, correct?
A. Yes, sir.

Judge Schwartz’s opinion focuses on commentary and argument rather than record evidence in arriving at the conclusion that there was sharply conflicting evidence as to whether any abuse took place. First there is the comment of the trial judge that “there is a substantial question as to whether or not he was physically beaten” and there were no “objective symptoms of that alleged beating.” Those comments, it is now somewhat conceded, are inconsistent with the evidence. On the subject of the abdominal injuries, verifiable only by subjective examination, the following testimony is further pertinent:

[Cross-Examination at page 589]

Q. [By Mr. McWilliams] Prior to entering the police service, you had some formal training in karate, correct?
A. [Detective Gergen] Yes, sir.
* * * * * *
Q. Part of that training is a detail study of the internal organs of the body, correct?
A. In some aspects, yes, sir.
Q. All right. The areas which to strike to cause internal injuries, correct, you studied that in your formal karate training?
A. Yes, sir.
Q; And also, part of that training is which parts of your body to use to strike another person to cause such injuries, correct?
A. That’s correct.

Footnote one of the majority opinion calls attention to that part of the physician’s testimony indicating that Porter may not have been physically abused with the degree of force testified to — suggesting, perhaps, that a little brutality is o. k. Lastly, the majority says the trier of fact has a right to believe that Porter harmed himself so as to justify a claim of police brutality. In the record such a theory originates with the prosecutor as mere hypothesis while examining the state’s own physician-witness, refers only to puffiness of the nose, and consumes all of a single question and answer. At page 236:

Q. [By Mr. McHale] If someone took their fist and punched themselves in the nose would it cause that puffiness?
A. [Doctor Goellner] Yes, sir. Any amount of trauma would cause puffiness.

A conflict in the testimony is raised only by the denials of Detectives Gergen and Derringer — whose propensities for frenzied expediency are elsewhere chronicled in this court — that they are responsible for Porter’s injuries. The testimony of the police stenographer was that she could not recall anything about the defendant.

Porter’s steadfast denial of any complicity in the killing of Charley Haggins on three separate days of interrogation totall-ing some twenty hours, during at least one of which sessions he suffered physical injuries, is subject to no other reasonable inference than that he was compelled by persistent interrogation and physical abuse to forego his Fifth Amendment privilege. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The state has the burden of proving by at least a preponderance of evidence that the challenged confession was given voluntarily. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); Brewer v. State, 386 So.2d 232 (Fla.1980). On the facts of this case if that burden is discharged with the mere denial by police officers that they physically abused the defendant, then the duty placed upon appellate courts to independently review the entire record to ascertain voluntariness is a farce. My disagreement is not on grounds that the evidence at trial is legally insufficient or that the weight of the evidence will not support a conviction. The majority recognizes as well that there is not the required finding by the trial court that defendant voluntarily and freely waived his Fifth Amendment privileges against incrimination, and it is my opinion that on this sordid record there can be no such finding. See Cason v. State, 373 So.2d 372 (Fla. 2d DCA 1979), cert. denied, 383 So.2d 1202 (Fla.1980) (where there is evidence of illegality surrounding confession state has a heavy burden of proving voluntariness with unmistakable clarity).

      . Officer Gergen had originally scheduled defendant for a polygraph examination on September 19 but cancelled it, admittedly, after Porter and his mother filed with the police department a complaint of brutality.

      .Judge Ferguson’s previous opinion for the court relies heavily upon “independent medical evidence... tending to corroborate Porter’s testimony.” The physician who subsequently examined him indeed stated that Porter’s condition was not inconsistent with his being injured, but he also indicated it was not in accord with the degree of force which the defendant testified had been asserted against him, thus casting doubt upon his entire story. Furthermore, the doctor said that injuries he saw could well have been self-inflicted. If, as the triers of fact had the right to do, the detectives’ testimony that they did not strike or brutalize Porter at all were believed, the defendant’s harming himself, either alone or with the help of others — so as to justify a claim of police brutality — would be an obvious possible source of the injuries.

      . Which were not definitively resolved until Edwards was decided two years later.

      . Since the failure to preserve the issue at the first trial has become insignificant in the light of the necessity for a new one, the court should consider the June 6, 1977 statement as well.

      . See, Leon v. State, 410 So.2d 201 (1982).


author: JOANOS, Judge.

text:
    Tom GRIFFIN, as Guardian of the Property of Eddie Gene Griffin, a Mental and Physical Incompetent, Appellant, v. CITY OF QUINCY and United States Fidelity & Guaranty Company, Appellee.
    No. ZZ-71.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1982.
    Rehearing Denied March 11, 1982.

      Jackson G. Beatty and M. Stephen Turner of Culpepper, Beatty & Turner, Tallahassee, for appellant.
    Alexander L. Hinson of Lines, Hinson & Lines, Quincy, for appellee City of Quincy.
    Jeffries H. Duvall of Duvall & Coulter, Tallahassee, for appellee U.S. Fidelity & Guaranty Co.
   JOANOS, Judge.

After considering the numerous issues raised in the appeal and cross-appeal, we affirm on all points.

The evidence reflects the following. On June 10,1976, Eddie Gene Griffin was on a tall ladder painting the roof of a two story house. He was using a roller hooked onto a thirteen foot aluminum pole. The pole came into contact with an uninsulated power line running about 6.5 feet from the eave of the house. Griffin suffered severe electrical shock and fell from the ladder onto the sidewalk.

Griffin sustained numerous injuries from the accident and became a physical and mental incompetent. His appointed guardian brought an action in his behalf against the City of Quincy and its insurance carrier, United States Fidelity & Guaranty Company. The complaint alleged that the City, as the seller and distributor of electricity, negligently placed the power lines too close to the house when other alternative routings were more feasible and less dangerous; that the City knew, or should have known that workmen would come into close proximity with the lines; that the lines were dangerous; and that the City failed to “insulate, isolate or guard its lines.” Motions of defendants to dismiss and for summary judgment were denied by the trial court and the case proceeded to trial.

At trial, the City presented evidence indicating that the overhead distribution lines of the City of Quincy were designed and installed with the assistance of professional electrical engineers; that the City has some 29 miles of overhead, uninsulated primary distribution lines, and that none of these lines are insulated because it would bring about increased wire size, overheating and exorbitant costs; that they did not know when the line in question was installed but that it was several decades ago; and that the line met safety code requirements for minimum clearance and was in complete accordance with plans and specifications recommended by the consultants.

The jury found the City to be 90% negligent and Griffin 10%. The total amount of damages was set at $3 million. The trial court denied various post trial motions but granted the City’s motion to limit the judgment pursuant to Chapter 73-313, Florida Statutes, Section 768.28. Pursuant to that statute as it read at the time of the accident, June 10, 1976, the Court’s order limited Griffin’s recovery to the available insurance coverage maintained by the City at the time. Further, the trial judge specifically found the statute to be constitutional. Therefore, final judgment was entered in favor of plaintiff in the amount of $2.7 million, but recovery was limited to $300,-000, the amount of insurance coverage maintained by the City. Plaintiff’s motion to tax costs was granted and approximately $17,000 in costs were assessed in addition to the $300,000 award.

The plaintiff below appealed. The defendants City and United States Fidelity and Guaranty Company, the City’s carrier, separately cross-appealed.

On appeal, appellant Griffin has argued that Chapter 73-313 does not limit or otherwise affect the right to full recovery for the negligence of a municipality in its performance of a “proprietary” function since these rights existed at common law and were never recognized as coming within the purview of sovereign immunity. Thus, appellant contends that an interpretation of § 768.28 which limits these rights would be an unconstitutional denial of equal protection and access to the courts. However, these arguments must be rejected as they were laid to rest in the recent cases of Cauley v. City of Jacksonville, 403 So.2d 379 (Fla.1981) and Jetton v. J.E.A., 399 So.2d 396 (Fla. 1st DCA 1981).

Appellant further argues that Chapter 73-313 cannot limit common law rights against municipalities because its title does not provide adequate notice of any such limitation. He asserts that the subject of the act is that claims against the state and its subdivisions are being authorized and that there is nothing indicating that immunity is being created for municipalities. However, a reading of the title to Chapter 73-313 appears to be sufficient to give fair notice of its contents, which would lead to inquiry into the body of the act. See Pruitt v. State, 363 So.2d 552, 554 (Fla.1978). In addition, because of the Florida Supreme Court’s finding in Cauley that there was no statutory right to recover for a municipality’s negligence predating the adoption of the declaration of rights in the Florida Constitution, nor was there a common law cause of action when this Country gained its independence, appellants’ argument that the title does not give notice that it is destroying any common law rights fails.

On cross-appeal, Fidelity argues that the trial court erred in denying defendants’ motion to dismiss, since plaintiff not only failed to allege waiver of sovereign immunity and his intentions to proceed under § 768.28, but has maintained throughout that this case does not fall within the provisions of the statute and no need existed to affirmatively allege waiver of sovereign immunity. We fail to find any reversible error on this point. First, such an omission in the pleading would not have required a dismissal with prejudice, and appellant could simply have refiled his complaint. Commercial Carrier Corp. v. Indian River City, 371 So.2d 1010, 1022-1023 (Fla.1979). Second, the record reflects that the question of sovereign immunity was thoroughly litigated below and Fidelity was not prejudiced in any way by the deficiency in the pleading. In reducing the damages recoverable, the trial judge applied the pertinent principles pertaining to sovereign immunity.

Appellees Fidelity and the City argue that the alleged negligent activities remain immune by law from tort liability because they are discretionary in nature. The question involved on this point is whether the planning and design of an electrical system falls within the operational or planning functions of a municipality which remain immune under the principles set forth in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). In Commercial Carrier the Florida Supreme Court held that despite the broad waiver of sovereign immunity contained in § 768.28 certain “discretionary” governmental functions remained immune. The reason given was that the wisdom involved in certain governmental decisions should not be subjected to second-guessing by judges or juries. In identifying the activities that are immune, the Court adopted the analysis set forth in a California case, Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (1968), which distinguished between the “planning” and “operational” levels of governmental decision making. The Court indicated that a case-by-case analysis must be made in determining which governmental functions are immune. In making that analysis, the Court indicated that the analysis should begin with the four-question test set forth in the Washington case of Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965). According to that test if the following four questions are all answered in the affirmative, the activity in question should be classified as immune:

(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective?
(2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program or objective as opposed to one which would not change the course or directions of the policy, program, or objective?
(3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved?
(4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission or decision?

However, if one or more of the questions brings a negative answer then according to the procedure further, inquiry might be necessary dependent upon facts and circumstances. Turning to the situation before us, we find that the trial court .was correct in finding that the first of the four-part test was not met in that the activities did not involve a “basic governmental policy, program or objective.” The operation of an electrical system is not a traditional “governmental” function. Further, there is nothing in the facts or circumstances of the situation here that requires a finding of immunity. A “basic governmental policy, program, or objective” in the circumstances here would have been the decision of whether or not the City should go into the business of providing electricity to its residents. This is the type of “quasi-legislative” decision which, according to Commercial Carrier, remains immune. However, the implementation of the “policy, program or objective” to provide electricity is an operational level function and the City is not immune from tort liability for its negligence in this area.

Appellees City and Fidelity have also argued that the trial judge was in error in his limitation of the judgment in applying the provisions of § 768.28, Florida Statutes, as they existed at the time that the cause of action accrued rather than as they existed when the judgment was entered. The appellees moved the trial court to limit the judgment as provided in § 768.28(5), Florida Statutes (1979) which would have limited the judgment according to the $50,-000/$100,000 limitation. The trial court instead applied § 768.28(10), Florida Statutes (1975) and entered judgment in the amount of $300,000, the amount of insurance coverage maintained by the City at the time of the accident. Appellees assert that the clear words of subsection (5) are that the damage limitation to be applied is the one in existence at the time the judgment is entered, otherwise the statute would have no practical application. We have determined that the trial court was correct in applying the statute that was in effect at the time appellant’s cause of action accrued. Retrospective application of the statute would adversely affect appellant’s right to recover the policy limits of the City’s insurance, which right vested when appellant suffered the injury. Thus, the statute in existence at the time of the incident should be applied. See McCord v. Smith, 43 So.2d 704 (Fla.1950).

Appellee Fidelity has urged us to reconsider this Court’s opinion in State v. Yant, 360 So.2d 99, 101 (Fla. 1st DCA 1978) in which it was held that the statutory limitation in § 768.28 does not apply to costs and costs may be taxed in addition thereto. Ap-pellee points out that in Berek v. Metropolitan Dade County, 396 So.2d 756 (Fla. 3d DCA 1981) a contrary position was taken. We have examined that case but have determined that no compelling reason exists for us to recede from the Yant decision.

AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and THOMPSON, J., concur.


author: COBB, Judge.

text:
    CITY OF BOCA RATON, Florida, f/u/b/o American Cast Iron Pipe Company, Appellant, v. GOLD COAST CONSTRUCTION, INC., and Cotton States Mutual Insurance Company, Appellees.
    No. 81-571.
    District Court of Appeal of Florida, Fifth District.
    Jan. 13, 1982.
    Rehearing Denied Feb. 23, 1982.
    Lawrence J. Phalin and Scott R. McMil-len of Mateer, Harbert, Bechtel & Phalin, P. A., Orlando, for appellant.
    William L. Eagan of Arnold, Matheny & Eagan, P. A., Orlando, for appellees.
   COBB, Judge.

American Cast Iron Pipe Company (American), a supplier of industrial pipe, sued Gold Coast Construction, Inc. (Gold Coast), a general contractor, and its surety, Cotton States Mutual Insurance Company (Cotton States), for monies due on pipe and supplies it had delivered. Gold Coast counterclaimed, alleging American had caused it severe delay damages by delivering pipe which deviated from the requirements of the job’s plans and specifications. The trial court found that Gold Coast owed American $26,221.66 for the pipe and supplies, but totally offset this amount by finding in favor of Gold Coast on its counterclaim. Both American and Gold Coast appeal the final judgment, American arguing it was not legally responsible for insuring the pipe met the job’s plans and specifications, Gold Coast arguing that the damages awarded it were inadequate.

Having considered all of American’s arguments, we conclude they lack merit. The trial court did not err by varying from the terms of both American’s bid to Gold Coast and the June 8, 1976 purchase order, the order which resulted in the shipment of incorrect pipe. Section 672.202, Florida Statutes (1975), did not prohibit the trial court from considering evidence outside these two unilateral memoranda: American’s bid to Gold Coast preceded its express warranty that the pipe would meet the job’s plans and specifications, and the purchase order, which American prepared subsequent to the oral warranty, was not signed by Gold Coast.

We do find error, however, with the trial court’s judgment on Gold Coast’s counterclaim. The trial court found that not all of Gold Coast’s delay damages were attributable to American, and concluded that the attributable damages were “very close in amount to the amount due [American] for the pipe.” The finding of “very close” implies that Gold Coast’s damages were either more than or less than, but did not equal, the $26,221.66 the court found Gold Coast owed American for the pipe. Unless the difference was so slight as to amount to de minimus non curat lex, which we cannot discern from the final judgment, the trial court erred by not entering a specific damage figure. While the trial court’s result may have been equitable under the circumstances, Gold Coast counterclaimed at law for damages, and the trial court was required to make a finding as to those damages. We therefore remand the cause to the trial court so that it can express the amount of Gold Coast’s damages attributable to American’s actions. If, from the record, the trial court cannot ascertain with reasonable certainty the amount of damages attributable to American, the trial court should enter, on the basis of uncertainty, a judgment against Gold Coast’s counterclaim. Said finding will be appeala-ble by either party at that time.

AFFIRMED in part; REVERSED in part; and REMANDED with instructions.

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

      . Section 672.202, which remains unchanged, is Florida’s adoption of the 1962 version of the Uniform Commercial Code section 2-202. It provides:
      Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented:
      (1) By course of dealing or usage of trade (s. 671.205) or by course of performance (s. 672.208); and
      (2) By evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.


author: BOARDMAN, Judge.

text:
    Michael T. GROSSMAN and Karla J. Grossman, husband and wife, Appellants/Cross-Appellees, v. Malcolm BEARD, Sheriff, Hillsborough County, State of Florida, and Hillsborough County Board of Criminal Justice, and Appalachian Insurance Company of Providence, a foreign corporation authorized to do business in the State of Florida, Appellees, Hillsborough County Board of Criminal Justice and Appalachian Insurance Company of Providence, a foreign corporation authorized to do business in the State of Florida, Cross-Appellants.
    No. 80-2124.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1982.
    Rehearing Denied Feb. 23, 1982.

      Robert Goldhagen, Tampa, for appellants/cross-appellees.
    James E. Thompson of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for appellee Malcolm Beard.
    Michael L. Kinney of Marlow, Shofi, Ort-mayer, Smith, Connell & Valerius, Tampa, for appellees/cross-appellants Hillsborough County Bd. of Crim. Justice and Appalachian Ins. Co. of Providence.
   BOARDMAN, Judge.

Plaintiffs Michael and Karla Grossman appeal and defendants Hillsborough County Board of Criminal Justice (HCBCJ) and Appalachian Insurance Company cross-appeal a final judgment awarding appellants nothing from appellee/defendant Sheriff Malcolm Beard, but $19,000 damages from cross-appellants. We affirm in part and reverse in part.

Appellant Michael Grossman was employed by the Hillsborough County Hospital as an attendant on the closed psychiatric ward when he was abducted by prisoner Robert Negron, who was making an escape from the HCBCJ’s custody, on June 12, 1975. Grossman suffered psychological trauma as a result of the incident and began psychiatric treatment with Dr. Coffer immediately following his brief abduction. The treatment included hospitalization and continued consultations until September 30, 1975. At that point, Grossman was discharged as recovered from the effects of this particular incident. However, Dr. Coffer advised him to continue treatment at the Hillsborough County Guidance Center because of his “preexisting personality problems and conflicts.”

More than a year after Grossman’s brief abduction and eight months after his discharge by Coffer, he began an extensive course of treatment with Dr. Groff, another psychiatrist.

At trial, appellees were allowed over appellants’ objection to introduce evidence that Grossman’s medical and hospital bills were paid under Workers’ Compensation. Defense counsel’s position was that the collateral source rule did not bar this testimony concerning the reasonableness and necessity of this extended psychiatric treatment. Since appellees had an expert who would testify that this type of psychiatric treatment is ineffective unless the patient bears the expense of treatment, the trial court permitted this line of questioning. This was error.

Cook v. Eney, 277 So.2d 848 (Fla. 3d DCA), cert. denied, 285 So.2d 414 (Fla.1973), ably and concisely sets forth the law on this issue:

As noted in 77 A.L.R.2d 1154-1167, it is the general rule that to bring before the jury information as to an injured plaintiff’s right to workmen’s compensation benefits constitutes prejudicial error, since such information is likely to influence the jury against the plaintiff on the issues of liability or damages. In a liability suit against a third party (the appellee in this case), the issue of whether the plaintiff has received the benefits of any payment under workmen’s compensation, social security or other insurance-type programs is not material. The purpose of the suit is to attempt to establish liability on the part of the defendant, and in most instances the presence of benefits inuring to the plaintiff as a result of his injuries is not a proper consideration for the jury. Gates & Sons, Inc. v. Brock, 199 So.2d 291 (Fla.App. 1st, 1967), and cases cited therein.
The appellee’s argument that evidence of social security and workmen’s compensation benefits was offered only to rebut appellant’s testimony regarding his motivation to return to work was effectively disposed of in the United States Supreme Court case of Eichel v. New York Central Railroad Company, 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307 (1963), and we quote:
“... In our view the likelihood of misuse by the jury clearly outweighs the value of this evidence. Insofar as the evidence bears on the issue of malingering, there will generally be other evidence having more probative value and involving less likelihood of prejudice than the receipt of a disability pension.... [a showing of] collateral social insurance benefits involves a substantial likelihood of prejudicial impact.”

Id. at 849-850. Accord, Williams v. Pincombe, 309 So.2d 10 (Fla. 4th DCA 1975). Accordingly, this case must be reversed for a new trial on the issue of damages.

We have considered the remaining point raised by appellants and the point raised by cross-appellants and find no merit to them.

Accordingly, the final judgment is AFFIRMED with respect to appellee Beard’s nonliability to appellants, but REVERSED as to the damage award against cross-appellants, and the cause is REMANDED for a new trial solely on the issue of damages.

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


author: PER CURIAM.

text:
    CITY OF NAPLES, Florida, a municipal corporation, Appellant, v. EDGEWATER BEACH PROPERTIES, INC., a Florida corporation, Appellee.
    No. 81-1093.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1982.
    David W. Rynders, Naples, for appellant.
    Thomas E. Maloney of Maloney & Crane, Naples, for appellee.
   PER CURIAM.

Affirmed. See International Co., Inc. v. City of Miami Beach, 90 So.2d 906 (Fla.1956); Department of Transportation v. Morehouse, 350 So.2d 529 (Fla. 3d DCA 1977).

BOARDMAN, A.C.J., and GRIMES and DANAHY, JJ., concur.


author: PER CURIAM. BERANEK, Judge,

text:
    FARBOIL COMPANY, a unit of Beatrice Chemical, a division of Beatrice Foods, Inc., a foreign corporation, Appellant/Cross-Appellee, v. DELRAY POOLS, INC., a Florida corporation, Tru Pools, Inc., a Florida corporation, and Timscott Distributors, Inc., a Florida corporation, Appellees/Cross-Appellants.
    No. 80-1474.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 1982.
    Rehearing Denied March 2, 1982.
    Christopher J. Schilling of Jones & Foster, P.A., West Palm Beach, and Gerald Saharelli and Ronald Butler of Winston & Strawn, Chicago, for appellant/cross-appel-lee.
    Michael P. Maguire of Maguire & Friend, Coral Gables, for appellees/cross-appellants.
   PER CURIAM.

AFFIRMED.

LETTS, C. J., and GLICKSTEIN, J., concur.

BERANEK, J., concurs with opinion.

BERANEK, Judge,

concurring specially.

I reluctantly concur in the majority’s af-firmance because I conclude that reversible error has not been demonstrated. I am, however, troubled by the trial court’s statements in the order on petition for rehearing and clarification. Both plaintiffs and defendants moved for clarification as to the damages and the court stated it was “unable at this time to specify the amount of each category of damage suffered by the plaintiffs.” This order was entered approximately one year after the trial and in the absence of any matters clarifying the statement, I conclude it to be an expression by the trial court as to lack of memory only at the particular time that the order in question was entered. I thus concur because evidence appears in the record supporting amounts claimed by plaintiffs substantially in excess of the amounts awarded in damages by the final judgment.


text:
    Herbert George GARDNER, Appellant, v. STATE of Florida, Appellee.
    No. AB-10.
    District Court of Appeal of Florida, First District.
    Feb. 2, 1982.
    Rehearing Denied March 11, 1982.
    Steven E. Rohan of Vickers & Rohan, P.A., Jacksonville, for appellant.
    Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED.

We note that appellant’s dual sovereignty argument is controlled by this Court’s decision in Hernandez v. State, 397 So.2d 715 (Fla. 1st DCA 1981).

MILLS and WENTWORTH, JJ., and OWEN, WILLIAM C., Associate Judge, concur.


text:
    FLORIDA POWER CORPORATION, Appellant, v. Willie BAKER, Appellee.
    No. AC-7.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1982.
    Rehearing Denied March 10, 1982.
    James B. Cantrell of Pitts, Eubanks & Ross, Orlando, for appellant.
    Edward A. Nagel, Winter Park, for ap-pellee.
   PER CURIAM.

In this workers’ compensation order, we affirm as to all points raised except the portion of the attorney’s fee award based on the time the claimant’s attorney spent in preparation and presentation of his claim for an attorney’s fee, which is clearly not awardable. See Osceola Petroleum Co. v. Heard, IRC Order 2-3347 (February 13, 1978). Therefore, this cause is remanded so that the deputy commissioner can accordingly reduce the attorney’s fee award.

McCORD, ERVIN and SHAW, JJ., concur.


author: ANSTEAD, Judge.

text:
    Charles LANGSTON, Appellant, v. James KING, etc., Dura-Stilt Corporation, and Consolidated Aluminum Corporation, Appellees.
    No. 80-1938.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 1982.
    Rehearing Denied March 11, 1982.

      Joel Daves of Burdick & Daves, West Palm Beach, for appellant.
    Marjorie D. Gadarian of Jones & Foster, P. A., West Palm Beach, for appellees James King, d/b/a Pro Building Supply and Dura-Stilt Corp.
    Michael J. Ferrin and Don Beverly of Beverly & Freeman, West Palm Beach, for appellee Consolidated Aluminum Corp.
   ANSTEAD, Judge.

This is an appeal by appellant, the plaintiff below, from an adverse judgment and jury verdict suffered in a products liability case brought against the appellees.

Most of the alleged errors complained of on appeal involve the admission of expert testimony, and in our view all of the alleged errors involve discretionary calls by the trial court. We have reviewed each of appellant’s claims and have concluded that no reversible error has been demonstrated. However, although we conclude that the error was harmless under the circumstances of this case, we also hold it was error for the trial court to refuse to allow the appellees’ expert to be questioned about any agreement for compensation he had with appellee.

The Florida Supreme Court has stated that the trial court has broad discretion in permitting a witness to be questioned about his interest in the case, and, on facts similar to those present herein, has held that the trial court did not abuse its discretion. Pandula v. Fonseca, 145 Fla. 395, 199 So. 358 (Fla.1940). Also see H. I. Holding Co. v. Dade County, 129 So.2d 693 (Fla. 3d DCA), cert. denied, 133 So.2d 646 (Fla.1961); Lipsius v. Bristol-Myers Co., 265 So.2d 396 (Fla. 1st DCA 1972). We, of course, are bound to follow the Supreme Court’s ruling, and have done so here. However, while we agree that the trial court has broad discretion in determining the extent to which a witness may be examined about any interest or bias, we believe that as a minimum the parties should have the right to elicit the existence and terms of any agreement for compensation to be paid to an expert witness.

The day has long since passed when, as was apparently the case in Pandula v. Fonseca, the only expert appearing in court is the treating physician of the plaintiff. Much of the modern day litigation involves a “battle of experts.” Under these circumstances we believe the trier of fact, who ultimately must make some assessment of the credibility of such witnesses, is entitled to know the extent of any financial arrangements made to secure their participation in the case.

In accordance with the above, the judgment of the trial court is affirmed.

LETTS, C. J., and HERSEY, J., concur.


author: OTT, Judge.

text:
    Samuel HILLMAN, Appellant, v. STATE of Florida, Appellee.
    No. 81-361.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1982.

      Jerry Hill, Public Defender, Bartow, and Samuel Robert Mandelbaum and Marcia Zimmerman, Asst. Public Defenders, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Appellant and a companion robbed a Tampa furrier at gun point, taking his wallet, pistol, and car. The companion was armed, but appellant was not. The car contained fishing gear owned by the furrier and his grandson, who were on their way to fish when the crime occurred.

The robbers were charged with two counts of armed robbery, one involving the furrier’s wallet, pistol, and car, and the other involving the grandson’s fishing equipment. Found guilty as charged, appellant was given consecutive 30-year sentences, with minimum confinement of three years on each charge on the ground that he was armed at the time of the offense. § 775.087, Fla.Stat. (1979).

Appellant first argues that because only one criminal episode occurred it was error for the lower court to sentence him for two robberies under Hearn v. State, 55 So.2d 559 (Fla.1951). The Florida Supreme Court in Hearn held that, “where defendants took nine cows and two calves belonging to different owners, at same time, from same place and under circumstances with same intent, the offense was a single larceny and conviction for larceny of one cow, property of one of the owners, was a bar on ground of former jeopardy to prosecution for larceny of the remaining cattle.”

Hearn is easily distinguished because it applies only to the offense of larceny, which has been characterized as a crime against the public. Thus, when cattle rustlers made away with cattle belonging to different individuals, it was held to be only one offense. However, when the additional element of “force, violence, assault, or fear” is added to a larceny, the crime then becomes robbery, which is characterized as an offense against the individual. Thus two robberies of different people at the same time are two separate offenses calling for two judgments and two sentences. Harris v. State, 286 So.2d 32 (Fla.2d DCA 1973), and O’Neal v. State, 323 So.2d 685 (Fla.2d DCA 1975); contra Hill v. State, 293 So.2d 79 (Fla.3d DCA 1974).

We reject the state’s argument that the Hearn rule was nullified by the addition of subdivision (4) to section 775.021, Florida Statutes (1976). By its own terms the amendment does not apply when the state charges that one criminal transaction or episode constituted two violations of the same statute. The amendment was patently intended to permit, for example, conviction for both possessing and selling contraband when the evidence establishes that the accused sold and delivered drugs on a single occasion, or both possession and importation when he is apprehended as he takes delivery of a shipment of drugs from out of state.

We therefore find no merit in appellant’s first contention and affirm his conviction on the two separate charges. We find merit, however, in appellant’s contention that he is not subject to minimum confinement under section 775.087. The “possession of a firearm” essential to applicability of that statute must be direct. Vicarious possession (such as by a cohort), while sufficient to sustain conviction for armed robbery, first degree murder, etc., is not sufficient “possession” to justify imposition of the minimum period of imprisonment under the statute. Earnest v. State, 351 So.2d 957 (Fla.1977). We need not speculate whether the statutory predicate would have been established had appellant armed himself with the pistol stolen from the furrier, since the evidence here was that appellant merely passed the wallet and pistol to his confederate when those items were removed from the furrier’s pockets.

The judgments and 30-year sentences are AFFIRMED. We REMAND with directions to strike from the sentences the requirement for a mandatory minimum confinement of three years. The appellant need not be present for this purpose.

BOARDMAN, Acting C. J., and GRIMES, J., concur.

      . Section 775.021(4), Florida Statutes (1976):
      Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.


author: SCHEB, Chief Judge.

text:
    Edward Charles LEE, Appellant, v. STATE of Florida, Appellee.
    No. 81-933.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1982.

      Elliott C. Metcalfe, Jr., Public Defender and Peter A. Dubensky and Becky A. Titus, Asst. Public Defenders, Sarasota, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Chief Judge.

Edward Charles Lee challenges his conviction and sentence on two counts of burglary. He raises several points; however, we find appellant’s contention that the trial court erred in refusing to grant a mistrial is dispositive.

At trial, the prosecutor in his opening statement to the jury mentioned six other names used by the defendant. Defense counsel objected and moved for a mistrial on the ground that Lee had been prejudiced by mention of his aliases. The court denied the motion.

Subsequently, Detective Robert Hampson of the Sarasota County Sheriff’s Department, one of the state’s chief witnesses, testified as follows:

Q (By Mr. Dannheisser) [prosecutor] Detective Hampson, referring to your knowledge of Edward Charles Lee, are you familiar with what name he uses?
MR. DUBENSKY [defense counsel]: I object. That calls for hearsay unless there were statements made by Edward Charles Lee to this witness, otherwise Detective Hampson is testifying to hearsay regarding any other name, and I would renew my motion I made earlier.
THE COURT: Overruled.
Q (By Mr. Dannheisser) Detective Hampson, what names are you familiar with, if any, that Edward Charles Lee goes by?
A Charles H. Lee. Gregory Lee, Charles—
MR. DUBENSKY: He is reading from a report and no foundation laid for him to do that. The rule of evidence specifies if he is going to refer to a document a predicate has to be laid.
THE COURT: He can refresh his recollection. I see no problem.
Q (By Mr. Dannheisser) You may answer.
A Charles Lee King, Edward Lee King, Edward Charles King, Charles Edward Lee King, Lee King and Leon King. These are all alias names obtained from the FBI on the rap sheet.

(Emphasis supplied.)

Defense counsel again objected and after an unrecorded argument moved for a mistrial on the ground that Detective Hamp-son’s response and his reference to the FBI rap sheet were prejudicial. The trial court also denied this motion. The jury found Lee guilty and this appeal ensued.

It is generally known that some criminals assume another name for the purpose of avoiding apprehension, and the word “alias” has come to connote in the public mind some previous criminal activity. State v. Harvey, 26 N.C.App. 716, 217 S.E.2d 88 (1975). There may be instances where proof or reference to aliases is relevant and material to prove or disprove an issue. However, their admission at trial should be strictly scrutinized as they convey the impression that a defendant belongs to a “criminal class.” See D’Allesandro v. United States, 90 F.2d 640 (3d Cir. 1937).

We have found no Florida case which holds admission of aliases to be reversible error. Our sister court, in Lamb v. State, 354 So.2d 124 (Fla.3d DCA 1978), held that the trial court did not err in denying defendant’s motion to strike an alias from an information. The court noted, however, that there could be situations where the use of one or more aliases would prejudice the defendant’s right to a fair trial. We think this is such a case.

The prosecutor’s initial recitation of Lee’s six other names may not have been prejudicial. But when the state elicited these names from Detective Hampson and he stated that they were obtained from an FBI rap sheet, we think the cumulative effect of these references prejudiced Lee’s right to a fair trial. Moreover, proof of the aliases was irrelevant to this case, and since the evidence, while persuasive, was largely circumstantial, the references were particularly harmful to the defendant. Therefore, we hold the court erred in denying the defendant’s motion.

In view of our holding, it is unnecessary for us to consider the remaining points Lee urges. However, we think his objections to the manner in which he was sentenced as a habitual offender pursuant to section 775.084, Florida Statutes (1979), deserve mention. Should the state again seek to have the defendant sentenced as a habitual offender, the court must determine that the evidence complies with the requirements of section 775.084(1)(a). Additionally, the court must find the enhanced penalty is necessary for the protection of the public and specify in the record the evidence upon which it relied. § 775.084(3)(d). This affords the defendant an opportunity for meaningful appellate review. Lawson v. State, 409 So.2d 181 (Fla.2d DCA 1982); Bell v. State, 382 So.2d 107 (Fla. 5th DCA 1980); Fry v. State, 359 So.2d 584 (Fla.2d DCA 1978).

Accordingly, we vacate the defendant’s conviction, award him a new trial, and remand for proceedings consistent with this opinion.

GRIMES and DANAHY, JJ., concur.

      . “Alias” derives from the term “alias dictus,” which literally means “otherwise called.” State v. Harvey, 26 N.C.App. 716, 217 S.E.2d 88 (1975). The standard dictionary definition of “alias” is “an assumed name.” Yet, the term has an unfavorable connotation in criminal justice. Wilfred Funk points out that “If you have any aliases, it means that you are posing as some ‘other’ person.” Word Origins, Bell Publishing Co., 1950, p. 354.


text:
    STATE of Florida, Appellant, v. W. D. S., a child, Appellee.
    No. 80-1282.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1982.
    Jim Smith, Atty. Gen., Tallahassee, James S. Purdy, Asst. Atty. Gen., Tampa, for appellant.
    David J. Kurland, Clearwater, for appel-lee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

SCHEB, C. J., and GRIMES and SCHOONOVER, JJ., concur.


text:
    STATE of Florida, Appellant, v. G. S. H., a child, Appellee.
    No. 80-1935.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1982.
    Jim Smith, Atty. Gen., Tallahassee, G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellant.
    James G. Gagnon, St. Petersburg, for ap-pellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

RYDER, A. C. J., and CAMPBELL and SCHOONOVER, JJ., concur.


text:
    STATE of Florida, Appellant, v. L. D. S., a child, Appellee.
    No. 80-1645.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1982.
    Jim Smith, Atty. Gen., Tallahassee, G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, Robert E. Jagger, Public Defender, Clearwater, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

GRIMES, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.


text:
    STATE of Florida, Appellant, v. T. L. M., a child, Appellee.
    No. 80-1483.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1982.
    Jim Smith, Atty. Gen., Tallahassee, G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, Robert E. Jagger, Public Defender, Clear-water, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

GRIMES, Acting C. J., and OTT and RYDER, JJ., concur.


text:
    STATE of Florida, Appellant, v. P. M., a child, Appellee.
    No. 80-1326.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1982.
    Jim Smith, Atty. Gen., Tallahassee, James S. Purdy, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, Robert E. Jagger, Public Defender, Clear-water, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

SCHEB, C. J., and GRIMES and SCHOONOVER, JJ., concur.


text:
    STATE of Florida, Appellant, v. G. N. H., a child, Appellee.
    No. 80-1323.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1982.
    Jim Smith, Atty. Gen., Tallahassee, Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellant.
    Wayne J. Boyer, Clearwater, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

SCHEB, C. J., and GRIMES and. SCHOONOVER, JJ., concur.


text:
    STATE of Florida, Appellant, v. R. C. V., a child, Appellee.
    No. 80-1284.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1982.
    Jim Smith, Atty. Gen., Tallahassee, G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow; Robert E. Jagger, Public Defender, Clear-water, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

OTT, A. C. J., and RYDER and DAN-AHY, JJ., concur.


text:
    STATE of Florida, Appellant, v. D. G., a child, Appellee.
    No. 80-1481.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1982.
    Jim Smith, Atty. Gen., Tallahassee, G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow; Robert E. Jagger, Public Defender, Clear-water, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

GRIMES, A. C. J., and CAMPBELL and SCHOONOVER, JJ., concur.


text:
    STATE of Florida, Appellant, v. S. G., a child, Appellee.
    No. 80-1474.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1982.
    Jim Smith, Atty. Gen., Tallahassee; G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, Robert E. Jagger, Public Defender, Clear-water, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

GRIMES, A. C. J., and CAMPBELL and SCHOONOVER, JJ., concur.


text:
    STATE of Florida, Appellant, v. A. M., a child, Appellee.
    No. 80-1398.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1982.
    Jim Smith, Atty. Gen., Tallahassee, G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender; P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

HOBSON, A. C. J., and BOARDMAN and OTT, J., concur.


text:
    STATE of Florida, Appellant, v. C. J. J., a child, Appellee.
    No. 80-1396.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1982.
    Jim Smith, Atty. Gen., Tallahassee, G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

HOBSON, A.C.J., and RYDER and CAMPBELL, JJ., concur.


text:
    STATE of Florida, Appellant, v. E. P., a child, Appellee.
    No. 80-1508.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1982.
    Jim Smith, Atty. Gen., Tallahassee, G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

BOARDMAN, A. C. J., and OTT and SCHOONOVER, JJ., concur.


text:
    STATE of Florida, Appellant, v. T. J. F., Jr., a child, Appellee.
    No. 80-1506.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1982.
    Jim Smith, Atty. Gen., Tallahassee, G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellant.
    Frank Quesada, Clearwater, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

BOARDMAN, A. C. J., and GRIMES and CAMPBELL, JJ., concur.


text:
    STATE of Florida, Appellant, v. J. B., a child, Appellee.
    No. 80-1505.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1982.
    Jim Smith, Atty. Gen., Tallahassee, G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bar-tow, for appéllee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

HOBSON, Acting C. J., and OTT and DANAHY, JJ., concur.


text:
    STATE of Florida, Appellant, v. J. R., a child, Appellee.
    No. 80-1281.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1982.
    Jim Smith, Atty. Gen., Tallahassee, Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, Robert E. Jagger, Public Defender, Clearwater, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

HOBSON, A. C. J., and OTT and DAN-AHY, JJ., concur.


text:
    STATE of Florida, Appellant, v. M. E. P., a child, Appellee.
    No. 80-1280.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1982.
    Jim Smith, Atty. Gen., Tallahassee, Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, Robert E. Jagger, Public Defender, Clearwater, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

SCHEB, C. J., and BOARDMAN and GRIMES, JJ., concur.


text:
    Dennis Edward ELLIOTT, Appellant, v. STATE of Florida, Appellee.
    No. 81-1175.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1982.
    Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Davit T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Ragland v. State, 358 So.2d 100 (Fla.3d DCA 1978).

HOBSON, A. C. J., and OTT and CAMPBELL, JJ., concur.


text:
    STATE of Florida, Appellant, v. C. B., a child, Appellee.
    No. 80-1270.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 1982.
    Jim Smith, Atty. Gen., Tallahassee, Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, Robert E. Jagger, Public Defender, Clear-water, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

GRIMES, A. C. J., and CAMPBELL and SCHOONOVER, JJ., concur.


text:
    STATE of Florida, Appellant, v. M. A. P., a child, Appellee.
    No. 80-1279.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 1982.
    Jim Smith, Atty. Gen., Tallahassee, Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    Joseph G. Donahey, Jr., Clearwater, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

RYDER, A. C. J., and DANAHY and CAMPBELL, JJ., concur.


text:
    STATE of Florida, Appellant, v. J. S. L., a child, Appellee.
    No. 80-1275.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 1982.
    Jim Smith, Atty. Gen., Tallahassee, James S. Purdy, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, Robert E. Jagger, Public Defender, Clearwater, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

GRIMES, A. C. J., and CAMPBELL and SCHOONOVER, JJ., concur.


text:
    STATE of Florida, Appellant, v. C. D. T., a child, Appellee.
    No. 80-1283.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 1982.
    Jim Smith, Atty. Gen., Tallahassee, Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, Robert E. Jagger, Public Defender, Clearwater, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

GRIMES, A. C. J., and CAMPBELL and SCHOONOVER, JJ., concur.


text:
    STATE of Florida, Appellant, v. G. E. F., a child, Appellee.
    No. 80-1480.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 1982.
    Jim Smith, Atty. Gen., Tallahassee, G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, Robert E. Jagger, Public Defender, Clear-water, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

SCHEB, C. J., and GRIMES and CAMPBELL, JJ., concur.


text:
    STATE of Florida, Appellant, v. A. B., a child, Appellee.
    No. 80-1479.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 1982.
    Jim Smith, Atty. Gen., Tallahassee, G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, Robert E. Jagger, Public Defender, Clear-water, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

SCHEB, C. J., and GRIMES and CAMPBELL, JJ., concur.


text:
    STATE of Florida, Appellant, v. L. L. Y., a child, Appellee.
    No. 80-1401.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 1982.
    Jim Smith, Atty. Gen., Tallahassee, Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, Robert E. Jagger, Public Defender, Clearwater, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

SCHEB, C. J., and GRIMES and CAMPBELL, JJ., concur.


text:
    STATE of Florida, Appellant, v. J. A. M., a child, Appellee.
    No. 80-1507.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 1982.
    Jim Smith, Atty. Gen., Tallahassee, G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellant.
    George E. Tragos, Clearwater Beach, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

BOARDMAN, A. C. J., and DANAHY and SCHOONOVER, JJ., concur.


text:
    STATE of Florida, Appellant, v. B. J. H., a child, Appellee.
    No. 80-1482.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 1982.
    Jim Smith, Atty. Gen., Tallahassee, G. P. Waldbart, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, Robert E. Jagger, Public Defender, Clear-water, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

GRIMES, A. C. J., and RYDER and CAMPBELL, JJ., concur.


text:
    STATE of Florida, Appellant, v. H. B. C., a child, Appellee.
    No. 80-1646.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 1982.
    Jim Smith, Atty. Gen., Tallahassee, Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow; Robert E. Jagger, Public Defender, Clear-water, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

GRIMES, A. C. J., and DANAHY and CAMPBELL, JJ., concur.


author: SHARP, Judge.

text:
    James Edward CONNER, Appellant, v. Robert L. BARTH and Dorothy J. Barth, his wife, Appellees.
    No. 81-512.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 1982.

      Lawrence W. Solodky of Law Office of Marvin E. Newman, Orlando, for appellant.
    Morton D. Aulls, Tavares, and William H. Stone, Clermont, for appellees.
   SHARP, Judge.

Conner appeals from a final judgment rendered after a non-jury trial, which determined one key “factual question”: “the location of the Southern most corner of Government Lot 6” in Lake County, Florida. Based on the record we cannot agree with the trial court that the southern most corner of Government Lot 6 is as indicated on the survey prepared by Hall-Farner & Associates dated August, 1980; nor can we, based on this record, determine where the corner should have been located. We therefore reverse the judgment and remand this matter to the trial court for further proceedings.

At issue in this case is the proper location of a triangular piece of land described (in part) as follows:

That part of Government lot 6 in section 26, Township 19 South, Range 26 East, in Lake County, Florida, bounded and described as follows: Begin at the most Southerly corner of the said Government Lot 6, thence run in a Northerly direction along the Easterly line of the said Government Lot 6 a distance of 65 feet, thence run in a Westerly direction and parallel with the Southwesterly line of Government Lot 3 of the said section 26, if extended Westerly, to the waters of Lake Saunders; begin again at the point of beginning, thence run in a Northerly direction along the waters of Lake Saunders to intersect the line last described above.

This turns on where the beginning point of that description lies or where is the Southern-most point of Government Lot 6?

Appellant argued the Easterly line of Government Lot 6 and the Southwest line of Government Lot 3 met and intersected in the waters of Lake Saunders, according to an 1883 survey establishing Government lots around the lake. Appellees argued that the Easterly line of Government Lot Six never reached the Southwesterly line of Lot 3, but rather it ended at the shoreline of Lake Saunders, and its boundary was the meander line as established by the government survey. The following sketch, based on a summary of the exhibits, further illustrates the dispute in this case.

Appellees presented the testimony of a surveyor, who had actually located the old government markers for Lots 3 and 6 using the original field notes. He testified that the appellee’s view was correct: the East line of Lot 6 stopped at the meander line, and did not extend into the old lake waters to intersect with the Southwest line of Government Lot 3. No contrary testimony was offered. The trial court concluded, as do we, that the meander line was the original boundary of both lots.

That, however, does not afford a basis to conclude that the 1883 meander line is still the boundary of Government Lot 6 or Government Lot 3 for that matter. Both lots were originally bordered by the waters of Lake Saunders. As the waters of that lake receded, by operation presumably of natural causes, the boundaries of both Government Lot 3 and Lot 6 extended outward “ratably” to the waters of the lake. Connery v. Perdido Key, Inc., 270 So.2d 390 (Fla. 1st DCA 1972). Florida follows the common law view which vests title to lands formed by reliction in the owners of the abutting lands.

Perhaps much of the accretion rule comes from the abhorrence of the law to leaving dangling pieces of land isolated. G. Thompson, 5A Commentaries on The Modern Law of Real Property, § 2563, at 41 (Repl.1978).

There was no testimony or survey in the record to show where the shoreline of Lake Saunders is presently located or where it was located in 1957 when the disputed piece of land was first conveyed by appellant’s predecessor in title to appellee’s predecessor. Those facts are essential to determine, under the law of Florida, where the southern most point of the East line of Government Lot six was located in 1957. Further, we note from reading the testimony in this case the presence of other factors, such as adverse possession and acquiescence which may alter the strict application of the common law in this case. We therefore reverse the judgment and remand this matter to the trial court for further proceedings.

REVERSED AND REMANDED.

ORFINGER and COBB, JJ., concur.

      . “Reliction” is the “process by which land formerly covered by water has become dry land by the imperceptible recession of the water....” F. Maloney, S. Plager, R. Ausness, B. Canter, Florida Water Law 1980, at 727 (1980).

      . Id.; G. Thompson, 5A Commentaries On The Modern Law of Real Property, § 2563, at 39 (Repl.1978).


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    STATE of Florida, Appellant, v. James Bradley BISSETT, Appellee.
    No. 81-588.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellant.
    No appearance for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

The state appeals from an order granting appellee’s motions to suppress, to impose sanctions and to dismiss. We reverse.

Appellee was arrested in April 1978, and charged with possession and delivery of cannabis and phencyclidine. His counsel withdrew in September of 1978. He then jumped bond and was not recaptured until 1981.

During appellee’s absence as a fugitive, the evidence was destroyed by the police pursuant to routine procedure for destroying contraband in older cases. Defense counsel, who appeared subsequent to appel-lee’s recapture, learned of the destruction of the evidence and moved to suppress testimony pertaining to the contraband, to impose sanctions on the state for the destruction of the evidence and to dismiss the information.

We agree with the holding in State v. James, 404 So.2d 1181 (Fla.2d DCA 1981), which involved substantially identical facts. There the court stated:

[T]he defendant by his escape delayed the trial for two years by which time the sheriff’s department, as part of its routine procedure, had destroyed the evidence. It was only after the case had been reset for trial and defense counsel knew of the destruction of the contraband that he requested production of that evidence. While mere delay of a trial would not ordinarily excuse the destruction of crucial evidence, the fact that defense counsel had ample opportunity to test the contraband [prior to the initial trial date], combined with the delay unlawfully caused by the defendant, demonstrate that the defendant was not prejudiced by the destruction of the evidence.

We therefore REVERSE and REMAND for a new trial.

ORFINGER and SHARP, JJ., concur.