author: PER CURIAM.

text:
    Ronald J. STRAIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 52460.
    Supreme Court of Florida.
    March 19, 1981.
    Rehearing Denied June 2, 1981.

      H. Randolph Fallin, Jacksonville,' for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This cause is before the Court on appeal from a judgment of the Circuit Court of the Fourth Judicial Circuit, in and for Duval County. Appellant Ronald J. Straight was convicted of murder in the first degree and sentenced to death. We have jurisdiction of his appeal. Art. V, § 3(b)(1), Fla.Const. We have given careful consideration to each of the appellant’s stated grounds of appeal, as the discussion to follow will show. We have reviewed the entire record of the proceedings below in order to determine whether the jury’s verdict of guilt was supported by competent, substantial evidence. We have also reviewed the sentencing proceeding to determine whether the sentence of death is appropriate to this case under the law. § 921.141(4), Fla.Stat. (1975). We affirm the conviction and the sentence.

The evidence at trial showed that at the time of the crime the appellant and Timothy Charles Palmes were living in an apartment also occupied by Jane Albert and her seven-year-old daughter, Stephanie. Mrs. Albert was employed by James Stone at his furniture store. On the day of the crime, in accordance with a plan conceived by Jane Albert, Palmes, and the appellant, James Stone was lured to the apartment. When Stone left the store to go to the apartment, Albert telephoned Palmes and Straight to tell them that Stone was on his way.

When Stone arrived at the apartment, the seven-year-old Stephanie, on instructions from Palmes and Straight, admitted him and directed him to one of the bedrooms. There Palmes and Straight bound him with wire and placed him in a large box they had constructed in the apartment. They tormented him with hammer blows and stabbings for approximately half an hour before he died from the knife wounds. Then they sealed the box, removed it to a truck, and dumped it in the St. Johns River.

The next day appellant, Palmes, Albert, and Stephanie left Florida taking Stone’s car, his credit cards, money from his wallet, and several days’ cash receipts from the furniture store. They were arrested in California. Straight fled as police officers approached him and attempted to avoid arrest by firing at the officers.

Mrs. Albert was given immunity and testified at trial as a witness for the state.

Palmes and Straight were jointly indicted for murder in the first degree. Their trials were severed; Palmes was tried first and convicted. Among the items of evidence introduced against him was his confession. There was news media coverage of the fact that he made a confession and also of his later retraction and his repudiation of the confession at trial.

Appellant presents five points on appeal of his conviction. Among them is the argument that the court failed to adequately instruct the jury on the limited use they could make of appellant’s prior convictions, which were brought out on his cross-examination, and that this failure was reversible error. He argues that after eliciting the fact of the six convictions on cross-examination of appellant, the prosecutor subsequently commented on them. Thus, he argues, the judge had a duty to instruct the jury that the evidence of prior convictions could only be used in evaluating the defendant’s credibility and for no other purpose. We decline to discuss the merits of this argument because the defense attorney at trial did not object to the instruction on credibility or ask for a different or additional one. “An appellate court must confine itself to a review of only those questions which were before the trial court and upon which a ruling adverse to the appealing party was made.” State v. Barber, 301 So.2d 7, 9 (Fla.1974). In order to secure appellate review of jury instructions, the defendant must make known to the court what charges he wants the court to give or not give and his grounds therefor. See Williams v. State, 285 So.2d 13 (Fla.1973); Fla.R.Crim.P. 3.390(d).

Appellant’s remaining arguments are: (1) that the court should have granted a change of venue; (2) that the court should have excluded from the evidence certain photographs said to be gruesome and inflammatory; (3) that the court erred in admitting into evidence the depositions of two California police officers which established that appellant resisted arrest there with deadly force; and (4) that the court should have granted a mistrial when on cross-examination of the appellant the state’s counsel asked a question, other than permitted impeachment, about unrelated criminal activity.

Appellant contends that the denial of his motion for change of venue deprived him of a fair trial because of widespread publicity. The record shows that the case received considerable media attention and that knowledge of the murder was widespread. Four-fifths of the prospective jurors, and eight of the twelve jurors who served on the jury, had some prior knowledge of the case. The crucial consideration, however, is not knowledge, but whether such knowledge rendered the jurors prejudiced.

A motion for change of venue is a matter addressed to the sound discretion of the trial court, and the trial court’s decision will generally be upheld if there is no showing of a palpable abuse of discretion. Johnson v. State, 351 So.2d 10 (Fla.1977); McNealy v. State, 17 Fla. 198 (1879).

The motion for a change of venue based on widespread prejudicial publicity called for a determination by the trial court of

whether the general state of mind of the inhabitants of the community is so infected by knowledge of the incident and accompanying prejudice, bias, and preconceived opinions that jurors could not possibly put these matters out of their minds and try the case solely on the evidence presented in the courtroom.

Manning v. State, 378 So.2d 274, 276 (Fla.1979); Jackson v. State, 359 So.2d 1190 (Fla.1978), cert. denied, 439 U.S. 1102, 99 S.Ct. 881, 59 L.Ed.2d 63 (1979); Kelley v. State, 212 So.2d 27 (Fla. 2d DCA 1968).

Appellant argues that the news media coverage of his codefendant’s confession brings this case within the rule of Oliver v. State, 250 So.2d 888, 890 (Fla.1971), in which this Court said that in general, “when a ‘confession’ is featured in news media coverage of a prosecution, ... a change of venue motion should be granted whenever requested.... ” It is not clear in the instant case, however, that the confession of Palmes implicated both himself and his co-defendant, as was the case in Oliver. Oliver dealt with a crime committed during a period of racial unrest. The victim was white and the defendants were black. The community in question was a relatively small one. Compare Dobbert v. State, 328 So.2d 433 (Fla.1976) aff’d, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) with Manning v. State, 378 So.2d 274 (Fla.1979). The circumstances here are different.

Furthermore, the general rule stated in Oliver has been restricted and refined. In Hoy v. State, 353 So.2d 826 (Fla.1977), cert. denied, 439 U.S. 920, 99 S.Ct. 293, 58 L.Ed.2d 265 (1978), the appellant argued that the rule of Oliver required a change of venue because of publicity surrounding his confession. The Court distinguished Oliver, and pointed out that Hoy’s retraction of his confession was covered with equal prominence in the newspaper and that none of the jurors had actually read the articles in question. We hold that Oliver does not require reversal in the present case.

The trial judge here presided over a long and painstaking voir dire procedure. The record shows that prospective jurors exhibiting even a hint of prejudice were excused. The court granted the appellant extra peremptory challenges and defense counsel did not use them all. The court did not abuse its discretion in denying the motion for change of venue.

Appellant next argues that the court erred in admitting a number of photographs over the objection that they were not relevant to any material issues in the case. In support of this contention at trial, the appellant stated his willingness to stipulate to several factual matters which he argued were the only facts the photographs were relevant to prove. Among the photographs objected to were several depicting the victim’s body which was recovered from the river after twenty days. The pictures showed the wounds inflicted on the deceased and were quite gruesome because of decomposition. The basic test of admissibility of photographs, however, is not necessity, but relevance. Bauldree v. State, 284 So.2d 196 (Fla.1973). Photographs can be relevant to a material issue either independently or by corroborating other evidence. State v. Wright, 265 So.2d 361 (Fla.1972).

Relevancy is to be determined in the normal manner, that is, without regard to any special characterization of the proffered evidence. Under this conception, the issues of “whether cumulative,” or “whether photographed away from the scene,” are routine issues basic to a determination of relevancy, and not issues arising from any “exceptional nature” of the proffered evidence.

Id. at 362.

In Young v. State, 234 So.2d 341 (Fla.1970), the Court had for consideration the contention that gruesome photographs denied the appellant a fair trial. Forty-five photographs in all were admitted, including twenty-five showing the partially decomposed body of the victim. The victim had drowned. The Court said:

The fact that the photographs are offensive to our senses and might tend to inflame the jury is insufficient by itself to constitute reversible error, but the admission of such photographs, particularly in large numbers must have some relevancy, either independently or as corroborative of other evidence.
Several of the photographs were unquestionably relevant to the issues before the jury, as one color photograph depicting a tatoo on the victim’s arm for purposes of establishing his identification. One issue before the jury was whether the deceased had committed suicide or whether he was murdered, the specific question being whether the victim could possibly have arranged strands of wire around himself in the manner in which it was found upon his recovery from the lake. Several of the photographs taken in the office of the County Medical Examiner at the time of the autopsy were relevant to this issue, as they revealed the manner in which several strands of wire had been wrapped around the victim’s neck and body.
We do not intend to invade the discretion of the state in the selection of evidence which it chose to present to the jury, or the discretion exercised by the trial court in admitting such evidence, but we must insure that both state and trial court act within reasonable limits. The very number of photographs of the victim in evidence here, especially those taken away from the scene of the crime, cannot but have had an inflammatory influence on the normal fact-finding process of the jury. The number of inflammatory photographs and resulting effect thereof was totally unnecessary to a full and complete presentation of the state’s case. The same information could have been presented to the jury by use of the less offensive photographs whenever possible, and by careful selection and use of a limited number of the more gruesome ones relevant to the issues before the jury. In concluding that reversible error was committed by introduction of an unnecessarily large number of inflammatory photographs, we are merely applying to the facts of this case a principle reiterated in Leach v. State [132 So.2d 329, 331-32 (Fla.1961), cert. denied, 368 U.S. 1005, 82 S.Ct. 636, 7 L.Ed.2d 543 (1962)].
“[WJhere there is an element of relevancy to support admissibility then the trial judge in the first instant and this Court on appeal must determine whether the gruesomeness of the portrayal is so inflammatory as to create an undue prejudice in the minds of the jury and detract them from a fair and unimpassioned consideration of the evidence.”

Young v. State, 234 So.2d at 347 — 48 (footnotes omitted). Thus Young v. State and the cited case of Leach v. State recognize that even relevant photographs sometimes must be excluded if they are unduly prejudicial, but the pictures in the present case were not repetitive as in Young and were of greater relevance. We hold that all the photographs admitted were relevant either independently or as corroborative of other evidence, specifically, the testimony of witnesses. They were few in number and included only a very few gruesome ones which were relevant to corroborate testimony as to how death was inflicted. The photographs were properly admitted.

Appellant’s third contention is that it was error to admit the testimony establishing that appellant fired his gun in the direction of police officers in California. He argues that evidence of collateral criminal activity is inadmissible because of its potential prejudicial impact.

It is improper for a jury to base a verdict of guilt on the conclusion that because the defendant is of bad character or has a propensity to commit crime, he therefore probably committed the crime charged. See, e. g., Winstead v. State, 91 So.2d 809 (Fla.1956); Nickels v. State, 90 Fla. 659, 106 So. 479 (1925). Therefore, evidence of criminal activity not charged is inadmissible if its sole purpose is to show bad character or propensity to crime.' But evidence of criminal activity not charged is admissible if relevant to an issue of material fact. Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). If irrelevant, its admission is presumed harmful error because of the danger that a jury will take the bad character or propensity to crime thus demonstrated as evidence of guilt of the crime charged.

When a suspected person in any manner attempts to escape or evade a threatened prosecution by flight, concealment, resistance to lawful arrest, or other indications after the fact of a desire to evade prosecution, such fact is admissible, being relevant to the consciousness of guilt which may be inferred from such circumstance. State v. Young, 217 So.2d 567 (Fla.1968), cert. denied, 396 U.S. 853, 90 S.Ct. 112, 24 L.Ed.2d 101 (1969); Daniels v. State, 108 So.2d 755 (Fla.1959); Blackwell v. State, 79 Fla. 709, 86 So. 224 (1920).

We hold that the evidence of appellant’s flight from police and use of his gun was relevant to the issue of his guilty knowledge and thereby to the issue of guilt. Appellant was willing to use at least the threat of deadly force to try to avoid arrest. This is probative of his mental state at the time. The depositions were properly admitted.

Appellant’s final contention concerns a question asked him by the state’s counsel on cross-examination. Appellant’s motion for mistrial made when the question was asked was denied. His objection to the question was sustained and his request that the jury be instructed to disregard the question was granted. So, the question was never answered. The challenge now is not to the admission of any evidence but to the very impropriety of the question. Appellant contends that that impropriety required the declaration of a mistrial.

During the direct examination of Jane Albert, she told of how she had purchased a gun for appellant in accordance with a request from him. On cross-examination, defense counsel asked Albert if there had been talk of appellant doing a drug deal in Texas. She replied that she knew nothing of a Texas deal but had heard of a plan to procure some drugs from a Dr. Day. Neither the state nor the defense questioned her further regarding Dr. Day or the nature of the transaction that was talked about.

Appellant took the witness stand in his own defense. On cross-examination the state’s counsel asked him about his activities on the day of the murder. He testified that during the afternoon or evening of that day he went to visit a woman in order to obtain some drugs. The prosecutor asked whether he knew the source of the drugs.

Q. What doctor did she go to to get her prescriptions?
A. I have no idea.
Q. Would it have been Dr. Day?
A. I don’t have no idea.
Q. You never heard that name mentioned?
A. No, sir.
Q. Isn’t it true that it was Dr. Day that you were going to use the pistol on that Jane bought you?

Transcript of testimony at 832-33. Defense counsel immediately asked to approach the bench and moved for a mistrial on the ground that the prosecutor’s question constituted a suggestion of unrelated criminal activity prejudicing the jury against the defendant. The court denied the motion for mistrial but sustained the objection. The question was not answered and the jury was instructed to disregard the question.

Appellant argues that the denial of his motion for a mistrial was reversible error. He grounds this argument on the rule that evidence of unrelated criminal activity of an accused is inadmissible. Evidence of separate crime, however, is generally admissible if somehow relevant to an issue of material fact. There are a number of recognized ways that separate criminal activity can be relevant. Williams v. State, 117 So.2d 473 (Fla.1960).

On the other hand, it is generally harmful error “to admit evidence of other or collateral crimes independent of and unconnected with the crime for which the defendant is on trial.” Nickels v. State, 90 Fla. 659, 685, 106 So. 479, 488 (1925). As stated above, the reason for this rule, establishing the harmfulness of the error in admitting a certain class of irrelevant evidence, is:

Evidence that the defendant has committed a similar crime, or one equally heinous, will frequently prompt a more ready belief by the jury that he might have committed the one with which he is charged, thereby predisposing the mind of the juror to believe the prisoner guilty.

Id. at 685, 106 So. at 488. The opinion in Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959), told of how this recognition of the possible prejudicial impact led to the rule being stated as a rule of exclusion with certain exceptions rather than as a rule of admissibility. See, e. g., Winstead v. State, 91 So.2d 809 (Fla.1956); Talley v. State, 160 Fla. 593, 36 So.2d 201 (1948); Whitehead v. State, 279 So.2d 99 (Fla. 2d DCA 1972).

Even when the evidence of separate criminal activity has relevance, it is possible for such evidence, as it is presented, to have an improper prejudicial impact that outweighs its probative value. See, e. g., Williams v. State, 117 So.2d 473 (Fla.1960); Denson v. State, 264 So.2d 442 (Fla. 1st DCA 1972).

Appellant cites several cases where convictions were reversed because of the admission of evidence of unrelated crime, Ragusa v. State, 338 So.2d 1103 (Fla. 4th DCA 1976); Colbert v. State, 320 So.2d 853 (Fla. 1st DCA 1975), cert. denied, 330 So.2d 726 (Fla.1976); Whitehead v. State, 279 So.2d 99 (Fla. 2d DCA 1973). In each of these cases, the defendant’s objection was overruled and the state was permitted to confront the defendant with or admit evidence of accusations or arrests. Thus they do not resolve the issue in the present case which is whether the mere propounding of a question by the prosecutor, seeking to elicit testimony that would be irrelevant but which suggests the existence of unrelated criminal activity, is reversible error when the objection to the question is sustained, the witness does not answer, and the jury is instructed to disregard the question.

That the assistant state attorney’s question, calculated to elicit irrelevant testimony and suggesting to the jury the existence of such prejudicial evidence, was highly improper, is without question. We do not believe, however, that the improper comment, by itself, was sufficient to require that the court grant the motion for a mistrial. Feldman v. State, 194 So.2d 48 (Fla. 4th DCA 1967). The appellant denied any involvement or knowledge of the crime charged. The improper comment did not tend to discredit any particular feature of appellant’s account of his activities during the time the crime was being committed or undermine any particular theory of the defense. Its impropriety lay in its general attack on the defendant’s character. In light of the overwhelming evidence against appellant, we find it inconceivable that the prosecutor’s improper question might have affected the verdict. The motion for mistrial was properly denied.

After the separate proceeding on sentence was held, the jury returned a recommended sentence of death. The court deferred sentencing until after the receipt of a presentence investigation. A copy of the presentence investigation report was furnished to appellant prior to sentencing.

As aggravating circumstances, the court found that appellant committed the murder while under a sentence of imprisonment, § 921.141(5)(a), Fla.Stat. (1975), that the murder was committed in the course of a robbery, id. § 921.141(5)(d), that the murder was committed for pecuniary gain, id. § 921.141(5)(f), and that the murder was especially heinous, atrocious, and cruel. Id. § 921.141(5)(h). The court found that there were no mitigating circumstances.

The trial judge’s finding that appellant was under sentence of imprisonment was based on the fact that he was on parole from prison. We hold that this fact, established by evidence, supports the finding of this aggravating circumstance.

The .trial judge’s findings that the murder was committed in the course of a robbery and that it was committed for pecuniary gain are both based on the same aspect of the crime. Where such double recitation of aggravating circumstances based on a single aspect of the crime indicates that inflated consideration was accorded to the factor, it is error. Provence v. State, 337 So.2d 783 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977). Where it is clear that the sentencing judge merely recited both statutory factors without giving improper double consideration to the single aspect in question, or where the absence of mitigating circumstances makes clear that any added weight accorded the factor did not tip the balance in favor of a sentence of death rather than life, the error of double recitation is harmless. See Hargrave v. State, 366 So.2d 1 (Fla.1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979); Elledge v. State, 346 So.2d 998 (Fla.1977). We approve the finding of one statutory aggravating circumstance based on the commission of murder in the course of the felony of robbery.

The trial judge’s finding that the capital felony was especially heinous, atrocious, and cruel was based on evidence that appellant directly participated in the murder inflicted by multiple stab wounds and bludgeoning. The evidence supports the factual findings and the facts establish this statutory factor. See, e. g., Washington v. State, 362 So.2d 658 (Fla.1978), cert. denied, 441 U.S. 937, 99 S.Ct. 2063, 60 L.Ed.2d 666 (1979); Funchess v. State, 341 So.2d 762 (Fla.1975), cert. denied, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158 (1977).

Upon our review of the sentencing proceedings and the court’s findings based on the whole record, we conclude that there was no prejudicial error in the sentencing phase and that the court properly found several aggravating circumstances and no mitigating circumstances. The sentence of death is proper.

The judgment of conviction of murder in the first degree is affirmed. The sentence of death, having been found to be appropriate to this case, is approved.

It is so ordered.

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

SUNDBERG, C. J., concurs in result only.


source: Caselaw Access Project

author: ADKINS, Justice.

license: Public Domain

text:
    Stephen Todd BOOKER, Appellant, v. STATE of Florida, Appellee.
    No. 55568.
    Supreme Court of Florida.
    March 19, 1981.
    Rehearing Denied June 2, 1981.

      Stephen N. Bernstein, Asst. Public Defender, Gainesville, for appellant.
    Jim Smith, Atty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., Tallahassee, for appellee.
   ADKINS, Justice.

This is an appeal from a judgment adjudicating defendant guilty of murder in the first degree and an order imposing a sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. (1972).

Defendant was also adjudged guilty of sexual battery and burglary, receiving a sentence of fifty-five years for sexual battery and thirty-five years for burglary.

The victim, an elderly woman, was found dead in her apartment in Gainesville, Florida. The cause of death was loss of blood due to several knife wounds in the chest area. Two knives, apparently used in the homicide, were embedded in the body of the victim. A pathologist located semen and blood in the vaginal area of the victim and concluded that sexual intercourse had occurred prior to death. The apartment was found to be in a state of disarray; drawers were pulled out and their contents strewn about the apartment. Fingerprints of the defendant were positively identified as being consistent with latent fingerprints lifted from the scene of the homicide. The defendant had a pair of boots which had a print pattern similar to those seen by an officer at the scene of the homicide.

Test results indicated that body hairs found on the clothing of the defendant at the time of his arrest were consistent with hairs taken from the body of the victim.

After being given the appropriate warnings, the defendant made a statement, speaking as an alternative personality named “Aniel.” The “Aniel” character made a statement that “Steve had done it.”

The indictment returned by the grand jury charged defendant with murder in the first degree, sexual battery, and burglary. A motion for mental examination and notice of defense of insanity were filed on behalf of the defendant and he was examined by three psychiatrists.

The defendant entered a plea of not guilty, but did not testify during the guilt phase of the trial. He was found guilty on all three counts of the indictment.

During the sentencing phase of the proceedings the defendant testified. At the conclusion of his testimony, and against the advice of his attorney, the defendant made a statement to the jury saying, “A defendant found guilty of such a crime should receive the death penalty.” The jury recommended the death penalty and defendant was sentenced to death. This appeal resulted.

The defendant contends that during the sentencing proceedings the court committed error in permitting the prosecutor to ask questions based on information gathered from court ordered psychiatric' reports. The defendant argues that this violated his right against self-incrimination. During the sentence hearing the defendant testified on direct examination that he had “no recollection” as to what happened on the day of the homicide. He stated that he had been hospitalized eight times in the past. During the times that he was hospitalized from the age of thirteen until now, the defendant said he could not remember the reasons for being in the hospital. He testified that on three of the occasions his lack of memory was “the reason for being in the hospital.” On cross-examination the defendant testified that he did not consider himself a violent person, but that he did have problems with acts of violence while in the service. He denied that he attempted to kill people, but admitted that while in Okinawa he robbed houses of prostitution and used a claw hammer with which to hit people. He admitted that he hit about five people. The prosecutor then asked defendant if he remembered “getting up feeling like he wanted to kill someone that day.” His counsel objected at that point, contending that the prosecutor was seeking to elicit information contained in the reports of the psychiatrist and such information was privileged. The court ruled that the question went toward the defendant’s lapse of memory on the day of the incident and was proper cross-examination. Finally, when asked if he thought about killing anyone that day, the defendant responded, “Sometime I did, but I gave up the idea because it was crazy.”

The defendant recognizes that a court ordered psychiatric examination generally is not considered violative of defendant’s right to freedom from compelled self-incrimination and that psychiatrists may render opinions concerning sanity based on factual statements made by the defendant. However, the defendant points out that direct testimony concerning the facts surrounding a crime is prohibited where ascertained from a compulsive mental examination. Defendant relies upon Parkin v. State, 238 So.2d 817 (Fla.1970), in which we held that the trial court should prohibit a psychiatrist from testifying directly as to the facts surrounding the crime, where such facts have been elicited from the defendant during the course of a compulsory mental examination. We said that the state, in its inquiry of a court appointed psychiatrist, should not go beyond eliciting the opinion of the expert as to sanity or insanity and should not inquire as to information concerning the alleged offense provided by a defendant during his interview.

The defendant also cites McMunn v. State, 264 So.2d 868, 869 n.2 (Fla. 1st DCA 1972), where the court labeled as objectionable the question to the defendant, “[wjhether or not at that time and place you told Dr. Nelson the details of what happened that night including firing the shot?” The court also said that later impeachment testimony through the person of Dr. Nelson, the examining psychiatrist, was inadmissible. The defendant contends that the cross-examination of him by the prosecutor during the sentencing proceedings was based primarily upon information obtained from the report of the psychiatrist. This being privileged information, he argues that it was not subject to disclosure by cross-examination of defendant after he had taken the witness stand.

In Parkin, supra, we pointed out that if a defendant’s counsel opens the inquiry to collateral issues, or admissions, or guilt, the state’s redirect examination properly could inquire within the scope opened by the defense. The defendant took the stand during the sentence proceedings, and presented the issue of whether he could remember certain events. When the defendant chose to testify in his own behalf during the sentence proceedings, the issue of guilt had been decided adversely to him. A defendant who takes the stand as a witness in his own behalf occupies the same status as any other witness, and all the rules applicable to other witnesses are likewise applicable to him. Hoskins v. State, 70 Fla. 186, 69 So. 701 (1915); Faulkner v. State, 151 So.2d 17 (Fla. 2d DCA), cert. denied, 156 So.2d 389 (Fla.1963). By taking the witness stand the defendant automatically subjected himself to cross-examination. Kilgore v. State, 271 So.2d 148 (Fla. 2d DCA 1972). A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take, the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him. Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968).

During the cross-examination there was no reference made by the prosecutor to the psychiatrist or to the psychiatric reports. The defendant opened up the question of what he remembered and whether he did or did not remember certain things. The trial court was correct in ruling that the state attorney had a right to inquire as to what defendant remembered, as this was an issue presented by the defendant during the sentence proceedings. Furthermore, the record does not conclusively show that the state attorney secured this information from the psychiatric reports.

During the course of the trial the state introduced into evidence two photographs of the victim as she was found at the scene of the crime. The defendant had no objection to the first photograph showing the position of the victim and the manner in which she was found. The second photograph was similar to the first but a cloth had been removed from the victim so as to reveal a knife protruding through the victim’s throat. The defendant says that this photograph was so prejudicial as to render it inadmissible.

Photographs are admissible if they properly depict the factual conditions relating to the crime and if they are relevant in that they aid the court and jury in finding the truth. Swan v. State, 322 So.2d 485 (Fla.1975). The photograph was used in connection with testimony regarding the causes of death, Henninger v. State, 251 So.2d 862 (Fla.1971); the nature and extent of the “force and violence” used to perpetrate the crimes, Alford v. State, 307 So.2d 433 (Fla.1975), cert. denied, 428 U.S. 912, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976); and the premeditated and coldblooded intent of the defendant, Foster v. State, 369 So.2d 928 (Fla.), cert. denied, 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 (1979). The photograph was used for any or all of these three purposes, so making it relevant and admissible.

Investigator Terry lifted, among others, one particular set of latent fingerprints from a closet door located inside a bedroom of the victim’s apartment. The latent fingerprints were placed on a card. The card was given by Terry to George Johnson, the latent examiner. Investigator Terry stated that the card was not in the same condition when it was introduced into evidence as when he lifted it. The fingerprint card was marked for identification. Investigator Terry did not make a similar comment regarding any other latent fingerprint card. George Johnson, the latent examiner, testified that he received the card from Investigator Terry; that he had the card in his custody until it was brought to court; and that it did not appear to be tampered with in any way. The trial judge enjoys wide discretion in areas concerning the admission of evidence. His ruling on the admissibility of evidence will not be disturbed unless an abuse of discretion is shown. Rodriguez v. State, 327 So.2d 903 (Fla. 3d DCA), cert. denied, 336 So.2d 1184 (Fla.1976); Coppolino v. State, 223 So.2d 68 (Fla. 2d DCA 1968), appeal dismissed, 234 So.2d 120 (Fla.1969), cert. denied 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 794 (1970). The defendant has failed to show an abuse of discretion by the trial judge in admitting the card into evidence.

The defendant contends that a reasonable hypothesis of innocence exists on the question of whether or not actual physical force likely to cause bodily injury was used in the commission of the sexual battery. There was overwhelming circumstantial evidence demonstrating only one reasonable hypothesis, to wit: that defendant used force likely to cause serious bodily injury in the commission of the sexual battery. See Hoy v. State, 353 So.2d 826 (Fla.1977), cert. denied, 439 U.S. 920, 99 S.Ct. 293, 58 L.Ed.2d 265 (1978); Jones v. State, 332 So.2d 615 (Fla.1976); Hallman v. State, 305 So.2d 180 (Fla.1974), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976).

The defendant seeks a reversal of his conviction of burglary with intent to commit larceny because the state failed to prove an intent to commit a crime. It is true that a conviction of burglary requires proof of an intent to commit the crime that was alleged. Rumph v. State, 248 So.2d 526 (Fla. 1st DCA 1971). There was no showing that any property was taken from the victim’s home. In fact, cash in the amount of $370.00 was found in the home by police officers who arrived at the scene.

“Burglary” means entering or remaining in a structure or conveyance with the intent to commit an offense therein. § 810.02, Fla.Stat. (1977). In a trial on the charge of burglary, proof of the entering of such structure at any time stealthily and without the consent of the owner is prima facie evidence of entering with intent to commit an offense. § 810.07, Fla.Stat. (1977). The. evidence shows that bureau drawers, metal boxes, and jewelry boxes were rummaged. The apartment was ransacked. From this evidence the jury could infer that the defendant was in search of valuables and that his object was to steal them. Walker v. State, 44 Fla. 466, 32 So. 954 (1902). See also Guerrero v. State, 289 So.2d 396 (Fla.1974); conformed to 291 So.2d 103 (Fla. 3d DCA 1974). Intent, being a state of mind, must in most cases be inferred from the circumstances. Edwards v. State, 213 So.2d 274 (Fla. 3d DCA), cert. denied, 221 So.2d 746 (Fla.1968). The circumstances in the case sub judice are open to only one reasonable interpretation, i.e., that the defendant entered the structure with intent to commit a larceny therein. The jury so concluded. The trial court did not instruct the jury on burglary with intent to commit grand larceny, so the charge was limited to the crime of breaking and entering the structure with the intent to commit petit larceny. The conviction of burglary is affirmed.

In attacking the death sentence the defendant says that the trial court improperly considered the alleged previous acts of violence brought out by the cross-examination of the defendant, for they were unauthorized aggravating factors. The state replies that the trial court considered only statutory aggravating circumstances. The findings of the trial judge. read as follows:

MITIGATING CIRCUMSTANCES
(a) Whether the defendant has no significant history of prior criminal activity.

Finding:

As a juvenile, Booker came to the attention of authorities for assaultive tendencies, truancy and theft. He was committed at least once to the Youth Center in New York and was given six months probation. He began using drugs of all kinds except “speed” when he was 13 years of age.
The Defendant had one confirmed Army 15 involving violence to another.
On November 12, 1974, the Defendant was sentenced in the Circuit Court, Collier County, Florida to five years in the state penal institutions for the offense of Robbery (strong arm) [.]
(b) Whether the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance.

Finding:

Booker knew and was able to understand the nature, quality, and wrongfulness of his acts on November 9, 1977; was able to understand the charges against him; and was able to adequately cooperate with and assist his counsel in his defense at trial.
Booker has been an antisocial, hostile, somewhat paranoid individual who learned at an early age that “he could easily obtain what he wanted by illegal means and that he could control others through fear and manipulation.”
There was argument of counsel, but no evidence whatever of extreme mental or emotional disturbance during the commission of the murder. [Refer to mitigation finding (e).] (brackets in original).
(e) Whether the victim, LORINE DE-MOSS HARMON, was a participant in the defendant’s conduct or consented to the act(s)[.]

Finding:

The victim did not at any time nor in any way consent to or participate in the conduct of defendant and his acts.
(d) Whether the defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor.

Finding-.

Booker was not an accomplice. No one else was involved, directly or indirectly. He was the aggressive perpetrator of the burglary of the dwelling, the sexual battery, and the murder.
(e) Whether the Defendant acted under extreme duress or under the substantial domination of another person.

Finding:

The Defendant did not act under the domination — not to mention — substantial domination of another person. The “An-iel syndrome” whereby Booker claimed that “Aniel” did it is and was irrelevant, most likely self-serving, and the evidence is bereft of any believable fact that the Defendant was being dominated by “An-iel” or anyone. To the contrary, he was the manipulative master of his acts at the time of the crimes.
Though the Defendant consumed intoxicants before the murder and may have experienced the “AnieF phenomenon afterward, there isn’t any evidence that he was under extreme duress at the time of the crimes.
(f) Whether the capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.

Finding:

At the time of the commission of the capital felony the Defendant’s capacity to appreciate the criminality and to conform his conduct to requirements of law was not substantially impaired [Refer to mitigation finding (b).] (Brackets in original).
“(g) The age of the Defendant at the time of the crime.”

Finding:

Booker was in his majority at the age of twenty-four years at the time of the crime(s). Therefore, age had no particular significance and is not a mitigating circumstance.
AGGRAVATION
(a) Whether the defendant was under sentence of imprisonment when the defendant committed the murder of which the defendant has been convicted.

Finding:

Booker was not under sentence of imprisonment when he committed the murder for which he has been convicted.
(b) Whether the defendant has previously been convicted of another capital felony or of a felony involving the use or threat of violence to the person.

Finding:

The defendant had been previously convicted of a felony, involving the use of threat of violence to another.
(c) Whether, in committing the murder of which the defendant has been convicted, the defendant knowingly created a great risk of death to many persons.

Finding:

The Court does not consider the above provision in the Statute applicable to the defendant as an aggravating circumstance.
(d) Whether the murder was committed while the defendant was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any burglary or rape.

Finding:

The stabbing which caused the death of LORINE DEMOSS HARMAN took place immediately after the vaginal penetration of her by the sex organ of STEPHEN TODD BOOKER. The other wounds took place while or immediately before and after completion of the crime of sexual battery. The capital murder also took place after Booker committed the felony of burglary of a dwelling as charged in Count III of the Indictment, and before he completed his flight from said crime.
(e) Whether the murder of which the defendant was convicted was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.

Finding:

The murder was not committed for the latter of these purposes, but, among other reasons, was committed for the purpose of avoiding or preventing a lawful arrest. [See aggravation paragraph below (h).] (Brackets in original).
(f) Whether the murder of which the defendant has been convicted was committed for pecuniary gain.

Finding:

There isn’t evidence that the capital murder was committed for pecuniary gain though Booker did obtain personal property of his victim, and he thoroughly searched her apartment for whatever he wanted.
(g) Whether the murder of which the defendant has been convicted was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.

Finding:

Not applicable as an aggravating circumstance.
(h)Whether the murder of which the defendant was convicted was especially heinous, atrocious or cruel.

Finding:

LORINE DEMOSS HARMAN was 94 years of age at the time of her death. She was active, alert, spry, enjoyed playing bridge on a regular basis with her friends, participated in church and other wholesome activities, preferred to take care of herself in her own apartment, to come and go in her pursuit of happiness and looked forward, as most others do, to the enjoyment of life.
Booker did not know Mrs. Harman. When she returned from visiting with friends, the defendant severely beat, wounded, raped and finally killed her, but his aggressive, antisocial hatred had not yet been satiated, hence, she was stabbed in the throat before death and after suffering the horrible indignities inflicted upon a lady who had not previously confronted such a gross animal-like fiend.
It is manifest from her picture in death that she suffered greatly in body and mind, knowing that her death was near and by reason of degrading inhuman cruelty.
There were seven stab wounds in her chest with one knife left embedded to its handle. There were no fewer than two stabs in her throat with a butcher knife left sticking through that part of her anatomy. There were other wounds and contusions with internal bleeding consistent with the outrageous beating of a 90-pound female by a strong overpowering male[.] Beyond gainsay, this cold, calculated capital murder was especially heinous, atrocious and cruel.
ACCORDINGLY, the Court further finds that there are insufficient mitigating circumstances to outweigh the aggravating circumstances which are sufficient to require the pronouncement of sentence hereinafter made.
The Court further finds that considering the facts and circumstances of this case a sentence less than that hereinafter pronounced would be insufficient, as Defendant himself stated.

There were no mitigating circumstances to be weighed against the aggravating circumstances. The defendant’s reliance on Elledge v. State, 346 So.2d 998 (Fla.1977), is misplaced because the record reveals that the trial court did not take into account in the “weighing process” any conceivable non-statutory aggravating circumstances. The questions posed to the defendant during cross-examination were used to negate a mitigating circumstance, i.e., that defendant had a significant history of prior criminal activity. See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Knight v. State, 338 So.2d 201 (Fla.1976); Meeks v. State, 336 So.2d 1142 (Fla.1976). When the defendant elects to testify during the sentencing proceedings, it is appropriate for the prosecutor to cross-examine him concerning previous criminal activity. Unless this mitigating factor is negated, there would be a presumption that defendant had not engaged in any previous criminal activity. It is apparent from an examination of the findings of the court that this evidence was not considered as an aggravating factor. The principles announced in Elledge, supra, and Mikenas v. State, 367 So.2d 606 (Fla.1978), are not applicable.

The jury recommended a sentence of death. The trial judge recited that he found no mitigating circumstances. The trial court found several aggravating circumstances, including the factor that the murder of which defendant was convicted was especially heinous, atrocious, and cruel. The sentence of death was proper.

Contrary to defendant’s contention, we have held that section 921.141, Florida Statutes (1977), does not violate the requirements of article V, section 2(a), Florida Constitution, because it attempts to govern practice and procedure. Dobbert v. State, 375 So.2d 1069 (Fla.1979), cert. denied, 447 U.S. 912, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980).

In light of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 923 (1978), the defendant says that Florida’s death penalty statute is too narrowly defined in the range of mitigating circumstances which the sentencing authority may consider. This argument was rejected by this Court in Songer v. State, 365 So.2d 696 (Fla.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979). Also, the directions given to the judge and the jury by the Florida statute were sufficiently clear and precise to enable the various aggravating circumstances to be weighed against the mitigating ones. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). See also State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1951, 40 L.Ed.2d 295 (1974); Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979).

Finally, we reject defendant’s contention that death by electrocution is cruel and unusual punishment. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947); Spinkellink v. Wainwright, supra.

The judgments and sentences of the lower court are affirmed.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. George T. DELVES, Respondent.
    No. 58726.
    Supreme Court of Florida.
    April 23, 1981.
    John A. Weiss, Bar Counsel, and James P. Hollaway, Asst. Staff Counsel, Tallahassee, and James A. Bledsoe, Jr., Chairman of the Fourth Judicial Circuit Grievance Committee “A”, Jacksonville, for complainant.
    George T. Delves, in pro. per.
    Lanas Troxler, Jacksonville, for respondent.
   PER CURIAM.

In this original proceeding, The Florida Bar charged respondent George T. Delves, a Florida Bar member, with engaging in conduct contrary to honesty, justice, and good morals; conduct involving fraud, deceit, or misrepresentation; conduct which reflects adversely on his fitness to practice law; and with mishandling client funds.

Two separate factual situations gave rise to the two-count complaint. The referee found as to the first count that respondent offered to sell certain parcels of real estate he allegedly owned to various married couples. He also offered to assist two of the couples in selling certain property they owned. In the course of these transactions, respondent retained from the purchase price of the property he sold for the two couples commissions and repair expenses not listed in the closing statements and of which no agreement had been made; failed to inform two of the purchasers that the property was subject to two outstanding mortgages for $24,700 and $2,300; and failed to inform all of the parties that the real estate was in fact not titled in his name because of outstanding judgments against him.

As to the second count, the referee found that respondent borrowed $4,300 and later $2,500 from Annie and Vollie (now deceased) Andrews. With respect to the first transaction, respondent borrowed the money to pay off a mortgage then being foreclosed and gave the Andrews an unrecorded “Satisfaction of Mortgage,” which he represented was security for the loan. Respondent never informed the Andrews that the satisfaction was in reality a worthless piece of paper. With respect to the second loan, respondent represented he would repay the money within sixty days. He did not do so. With both loans remaining outstanding, the Andrews tried but failed to locate respondent.

The referee recommended that respondent be found guilty of violating Integration Rule, article XI, rule 11.02(3), and of Code of Professional Responsibility Disciplinary Rules 1-102(A)(4) and (6), but not 9-102(A)(2) or 9-102(B)(4). The referee further recommended that respondent be suspended from the practice of law for a one-year period and thereafter until he makes complete restitution to Annie Andrews for the $4,300 loan, and until he demonstrates fitness to practice by petition under Integration Rule, article XI, rule 11.-11.

Respondent has been previously found guilty of similar misconduct and was previously suspended. State ex rel. The Florida Bar v. Delves, 160 So.2d 114 (Fla.1963). Further, respondent was not cooperative in this proceeding, the record reflecting that he left “unclaimed” seven communications sent to him by certified mail at the grievance committee level as well as a copy of the complaint, even though the postal service sent him two, notices for each communication except one.

We approve the referee’s findings and recommendations of guilt but, under these circumstances, reject the recommended discipline. We find that in light of respondent’s present actions and past record, disbarment is a more appropriate sanction. Accordingly, respondent is disbarred effective immediately and directed to pay the cost of these proceedings in the amount of $2,415.18.

It is so ordered.

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

McDONALD, J., dissents.


author: McDONALD, Justice.

text:
    Lefferts L. MABIE, Jr., Petitioner, v. GARDEN STREET MANAGEMENT CORPORATION, a Florida Corporation, Respondent.
    No. 58969.
    Supreme Court of Florida.
    April 23, 1981.
    Thomas W. McAliley and David J. White of Beckham, McAliley & Proenza, Miami, for petitioner.
    Robert E. Morris and E. B. Rood, Tampa, for respondent.
   McDONALD, Justice.

Mabie seeks reversal of a per curiam decision of the Second District Court of Appeal, 382 So.2d 901 (Fla.2d DCA 1980), affirming a trial court order denying Mabie’s motion to dismiss and/or transfer Garden Street’s suit for declaratory decree. Because of conflict with Rood v. Mabie, 375 So.2d 20 (Fla. 1st DCA 1979), cert. denied, 385 So.2d 760 (Fla.1980), we accepted jurisdiction. We approve the decision of the Second District Court of Appeal.

Mabie sued Rood, Garden Street’s principal stockholder, in Escambia County, but did not perfect service of process immediately. Garden Street then initiated this action in Hillsborough County and perfected service of process on Mabie. The day following service Mabie amended his complaint to join the corporation, an indispensible party, and thereafter perfected service. The controversy in each case involves how much of its stock Garden Street must issue to Mabie pursuant to his agreement with Rood, the corporation’s promoter.

We find that there is jurisdiction for each suit where filed. Mabie contends that this suit is precluded by his suit against Rood which was filed first. Garden Street replies that the instant action prevails because service of process was first perfected in this proceeding.

When two actions between the same parties are pending in different circuits, jurisdiction lies in the circuit where service of process is first perfected. Martinez v. Martinez, 153 Fla. 753, 15 So.2d 842 (1943). The First District Court of Appeal, finding that a later rule change overruled Martinez, held that the suit filed first prevails. Hunt v. Ganaway, 180 So.2d 495 (Fla. 1st DCA 1965), cert. denied, 188 So.2d 806 (Fla.1966). Although there is a rational basis for reaching that conclusion, we find that the better policy is to follow Martinez and have the date of service of process govern the jurisdictional conflict presented by this case. We reaffirm Martinez and disapprove Hunt.

The trial judge and the Second District Court of Appeal correctly declined to dismiss or transfer this case. We approve the decision of the district court.

It is so ordered.

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

      . The trial judge’s order reads as follows:
      That venue of this cause of action is properly in Hillsborough County alone because the cause of action arose here and the Plaintiff “resides” here, and that this Court first acquired jurisdiction of this cause of action because service of process was-first served in this suit and because the Plaintiff was not a party to the Escambia suit when this court obtained jurisdiction of the subject matter of this suit.

      .Art. V, § 3(b)(3), Fla.Const. (1972).

      . This is the federal rule. Barber-Greene Co. v. Blaw-Knox Co., 239 F.2d 774 (6th Cir. 1957).

      . See Fla.R.Civ.P. 1.050.


text:
    THE FLORIDA BAR, Complainant, v. James L. LEE, Jr., Respondent.
    No. 59061.
    Supreme Court of Florida.
    April 23, 1981.
    Stanley A. Spring, Staff Counsel, Tallahassee, Michael C. Whittington, Branch Staff Counsel and Scott K. Tozian, Assistant Staff Counsel, Tampa, and W. DeHart Ayala, Jr., Chairman of the Thirteenth Judicial Circuit Grievance Committee “A”, Tampa, for complainant.
    James L. Lee, Jr., in pro. per.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against James L. Lee, Jr., a member of The Florida Bar, is presently before us on report of a judicial referee. No petition for review has been filed by the bar or by Lee.

The referee has found that Lee used funds held in trust for a client to pay personal expenses, and that in so doing hje violated article XI, rule 11.02(4) of the Integration Rule, and disciplinary rules 1-102(A)(3) and 1-102(A)(6) of the Code of Professional Responsibility. Pursuant to article XI, rule 11.09(3)(f) of the Integration Rule, we approve both the findings of the referee and his recommendation that Lee be suspended from the practice of law for a period of three (3) months, effective May 25,1981, reinstatement being automatic under rule 11.10(4), and that he pay costs in the amount of $647.00 for this proceeding.

It is so ordered.

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


text:
    THE FLORIDA BAR. In re Petitioner of Edward W. STARR for Reinstatement.
    No. 59399.
    Supreme Court of Florida.
    April 23, 1981.
    Thomas A. Hoadley of Hoadley & Gavi-gan, West Palm Beach, for petitioner.
    Harris K. Solomon, Branch Staff Counsel, Fort Lauderdale, for respondent.
   PER CURIAM.

This cause is before the Court upon the petition of Edward W. Starr, a suspended member of The Florida Bar, for reinstatement to the active practice of law. See Art. V, § 15, Fla.Const.; Fla.Bar Integr. Rule, .art. XI, Rule 11.11.

Mr. Starr was suspended by order of this Court on April 5, 1978. The Florida Bar v. Starr, 357 So.2d 730 (Fla.1978). We are in receipt of the report of the referee containing findings of fact and recommending that Mr. Starr be reinstated subject to certain conditions. The Florida Bar has not filed a petition for review. We therefore adopt the referee’s findings of fact and approve his recommendations.

We hereby reinstate Edward W. Starr to the active practice of law, subject to the condition that for the next three years he and his accountant shall, on or before April 1 of each year, file with the executive director of The Florida Bar a statement that Mr. Starr has properly filed his income tax return for the previous year. We also assess the costs of this reinstatement proceeding against Mr. Starr.

It is so ordered.

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


author: BOYD, Justice.

text:
    STATE of Florida, Appellant, v. CITY OF PENSACOLA, etc., Appellee.
    No. 59710.
    Supreme Court of Florida.
    April 23, 1981.

      Curtis A. Golden, State Atty. and Barbara M. Finch, Asst. State Atty., Pensacola, for appellant.
    Don J. Catón, City Atty., Pensacola, and Daniel U. Livermore, Jr. of Freeman, Richardson, Watson, Kelly & Livermore, Jacksonville, for appellee.
   BOYD, Justice.

The state appeals a judgment of the Circuit Court of the First Judicial Circuit, in and for Escambia County, validating bonds proposed for issue by the City of Pensacola. We have jurisdiction. Art. V, § 3(b)(2), Fla.Const.; § 75.08, Fla.Stat. (1979). We affirm the judgment of the trial court.

Per chapter 75, Florida Statutes (1979), the City of Pensacola sought validation of Single Family Mortgage Revenue Bonds, Series 1980, for the purpose of financing the purchase of low interest mortgage loans for construction, purchase, reconstruction, or rehabilitation of single family residences within the. “inner city” of Pensacola. The purpose of the program is to revitalize the city’s downtown blighted area. The proceeds of the bonds will be used to purchase mortgage notes and mortgages from established lending institutions pursuant to a Sale, Servicing, and Administration Agreement. Under this agreement the lending institutions, called “participants,” are obliged to service and administer loans to persons who will use the money to purchase, construct, or rehabilitate single family residences within the “inner city.” The bond issue will encourage development in this blighted area because it will make mortgage money available at interest rates ranging from two to three and one-half percent lower than the prevailing market rate.

The city does not pledge its taxing powers or credit for the repayment of the bonds. Instead the principal and interest on the bonds will be paid solely from and secured by the repayment proceeds from sales of the- mortgage loans and mortgages and from certain insurance proceeds. The proceeds from the sale of the bonds and the repayment of the bonds will be administered by a trustee pursuant to a Trust Indenture.

The state filed this appeal, contending that the city does not have the power to issue this type of bond and that the issuance of the bonds is not for a valid public purpose.

The state’s first argument is premised on section 166.021(3)(c), Florida Statutes (1979), which states that municipalities have the power to enact legislation concerning any subject matter upon which the state legislature may act except those subjects “expressly preempted to state or county government by the Constitution or by general law.... ” The state claims the city is expressly preempted from the proposed involvement by the Florida Housing Finance Authority Law, Part IV, chapter 159, Florida Statutes (1979), and by the Community Redevelopment Act of 1969, as amended, Part III, chapter 163, Florida Statutes (1979). However, as respondent points out, neither of these acts expressly prohibits municipalities from issuing revenue bonds for the purpose of financing housing or redeveloping areas within their boundaries. Instead they merely authorize the creation of housing finance authorities and community redevelopment agencies whose powers to issue bonds are supplemental to those of the counties and municipalities.

As for the state’s second argument, it is settled law that projects to revitalize urban communities and to promote the development of decent housing serve a public purpose. See, e. g., State v. Miami Beach Redevelopment Agency, 392 So.2d 875 (Fla.1980); Grubstein v. Urban Renewal Agency, 115 So.2d 745 (Fla.1959); Marvin v. Housing Authority, 133 Fla. 590, 188 So. 145 (1938). In this case the City of Pensacola passed resolution no. 38-80 which found that the “inner city” was a blighted area which could be conserved and rehabilitated by facilitating the financing of single family residences within the area. Since there is substantial competent evidence in the record supporting the city’s findings, we hold the issuance of these bonds serves a valid public purpose. We therefore affirm the judgment of validation.

It is so ordered.

SUNDBERG, C. J., and ADKINS, OVER-TON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.


text:
    Jerilyn Gallup NEDUCHAL, Appellant, v. ALLSTATE INSURANCE COMPANY, a Foreign Corporation, and Liberty Mutual Insurance Company, a Foreign Corporation, Appellees.
    No. 79-326.
    District Court of Appeal of Florida, Fifth District.
    Nov. 26, 1980.
    On Rehearing April 1, 1981.
    Michael Maher of Maher, Overchuck & Langa, P.A., Orlando, for appellant.
    Reinald Werrenrath, III of Akerman, Senterfitt & Eidson, Orlando, for appellees.
   PER CURIAM.

The summary final judgment entered herein is reversed and the cause is remanded for further proceedings, on the authority of State Farm Insurance Company v. Bergman, 387 So.2d 494 (Fla. 5th DCA 1980).

REVERSED and. REMANDED.

FRANK D. UPCHURCH, Jr., and SHARP, JJ., and JAMIESON, FRANCES ANN, Associate Judge, concur.

ON MOTION FOR CLARIFICATION

PER CURIAM.

In entering a summary final judgment for the appellant, Jerilyn Gallup Ne-duchal, in Neduchal’s action for injuries arising from an automobile accident, the trial judge ruled that section 627.4132, Florida Statutes (1979), prevented Neduchal from stacking uninsured motorist coverage under a policy issued to him upon the uninsured motorist coverage under a policy issued to Stapp, the owner of the car in which Neduchal was a passenger at the time of the accident. The apppellant points out that our prior opinion in this case did not indicate whether this ruling was correct. We hold, consistent with our opinions in Florida Insurance Guaranty Association v. Johnson, 392 So.2d 1348 (Fla. 5th DCA 1980), and Day v. United States Fidelity and Guaranty Corp., 388 So.2d 351 (Fla. 5th DCA 1980), that the statute does not prohibit the stacking of coverages under policies isssued to different named insureds, as in the case here.

Furthermore, as noted in our earlier opinion, the trial judge’s ruling that personal injury protection benefits can be set off against uninsured motorist coverage was incorrect. See State Farm Mutual Automobile Insurance Co. v. Bergman, 387 So.2d 494 (Fla. 5th DCA 1980). The motion for clarification is granted, and as clarified herein, we adhere to our original opinion. The final judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

FRANK D. UPCHURCH, Jr. and SHARP, JJ., and JAMIESON, FRANCES ANN, Associate Judge, concur.


author: GLICKSTEIN, Judge.

text:
    Ronald Lehman BAIR, Appellant, v. Marvin W. CLARK and Link Foundation, Inc., Appellees.
    No. 79-969.
    District Court of Appeal of Florida, Fourth District.
    March 11, 1981.
    Rehearing Denied May 27, 1981.
    Eugene M. Underberg, Lake Worth, for appellant.
    John F. Law, Jr., and Vincent F. Hink, Jr., of Law Offices of John F. Law, Palm Beach, for appellees.
   GLICKSTEIN, Judge.

Ronald Lehman Bair appeals an adverse summary final judgment. Bair was employed from May, 1974 to December, 1974 as the out-patient coordinator by Link Foundation, a non-profit corporation concerned with drug abuse, and an arm of a public agency known as the Alcohol and Drug Abuse Council. Link replied upon charitable contributions and federal funding to accomplish its purpose.

Appellant alleged in his third amended complaint that appellee, Marvin W. Clark, who was the Executive Director of Link, told two reporters for Palm Beach newspapers the following:

1. Appellant’s termination of employment by Link was the result of “... misrepresentation upon his application for employment.”

2. Appellant “either does not hold at all” the degrees he submitted when hired or they “all are from unaccredited schools.”

3. Appellant “has been under investigation since he was employed six or seven months ago, but the authenticity of his credentials had been difficult to determine because they were well hidden.”

4. Appellant’s termination was “... just one of the skeletons in the closet that had to be shook loose.”

5. Appellant “to our knowledge not a doctor of anything.” ... is

6. Appellant’s school, Zion Theological Seminary, was “... an unlicensed, unaccredited school run from a private residence” and “the only accreditation it holds it gave itself under the name of the American Association of Christian Education.”

7. Appellant’s honorary degree was from an institution about which “Directory assistance in Cleveland could find no listing for the school” and “Inquiries about the Institute to Ohio officials have not been answered.”

The third amended complaint also alleged that the above allegations were false but were published nevertheless in the reporters’ respective newspapers, that appellee Clark knew or should have known that they were false, that Clark maliciously and wantonly sought to defame and injure appellant when he made the statements, and that the false and defamatory statements made by Clark caused appellant to lose his private counseling service and to suffer impairment of his reputation.

The deposition of appellee Clark reflects that the above statements were, in fact, made at the time of appellant’s termination of employment with Link. In their answer appellees had raised by affirmative defense that the statements were true, privileged, and made with good motive and without malice.

Appellant contends that the record establishes him to be a “private individual.” As such, he would not have to establish actual malice in order to recover. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). By actual malice we mean statements made with knowledge that they were false or with reckless disregard of whether they were false or not. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). See also Helton v. United Press International, 303 So.2d 650 (Fla. 1st DCA 1974).

Appellees contend that appellant was a “public figure”; therefore it was incumbent upon appellant to establish actual malice in order to recover. By public figure we mean one who has commanded a substantial amount of public interest by his position alone, or one who has thrust himself by purposeful activity into the vortex of an important public controversy. Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (plurality opinion, Harlan, J.). See also Wolston v. Reader’s Digest Ass’n, 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979).

We agree with appellant that he was a private individual. Although he held an important administrative position with a publicly supported foundation whose purpose was to respond to two of the most critical social problems of our time, drug abuse and alcoholism; we believe that the language of Wolston, supra, is apropos sub judice:

A private individual is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention.
* * * * * *
A libel defendant must show more than mere newsworthiness to justify application of the demanding burden of New York Times. See Time, Inc. v. Firestone, 424 U.S. [448] at 454, 96 S.Ct. 958, 965, 47 L.Ed.2d 154. 443 U.S. at 167-168, 99 S.Ct. at 2708.

See also Hutchinson v. Proxmire, 443 U.S. 111, 135, 99 S.Ct. 2675, 2688, 61 L.Ed.2d 411 (1979), where the court held:

Neither .. . [the research scientist’s] applications for federal grants nor his publications in professional journals can be said to have invited that degree of public attention and comment on his receipt of federal grants essential to meet the public figure level.

These two relatively recent cases underscore the proposition that general participation in a controversial activity or occupation will not transform a previously obscure private individual into a public figure absent the individual voluntarily thrusting himself into the public forum. And “those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure. See Wolston v. Reader’s Digest Assn., Inc., post, at [443 U.S.] 167-168 [99 S.Ct. 2708].” Hutchinson, supra, at 443 U.S. 135, 99 S.Ct. 2688.

In conclusion, we reverse the summary final judgment and remand to the trial court for proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

LETTS, C. J., and DOWNEY, J., concur.


text:
    Anne Marie GILBERT, Appellant, v. Richard WRIGHT, Appellee.
    No. 80-720.
    District Court of Appeal of Florida, Fourth District.
    March 11, 1981.
    Rehearing Denied May 29, 1981.
    Blank, Rome, Comiskey & McCauley, and Edna L. Caruso, West Palm Beach, for appellant.
    Kirk E. Friedland of Atlman, Colin & Friedland, and Jeffrey B. Stephens, West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a final judgment assessing damages against the appellant for breach of a lease appellant entered into with the appellee.- Although we find no error in the court’s judgment assessing liability against the appellant, we believe that the damages assessed should be reduced by the sum of $2,083.33. Accordingly, this cause is hereby reversed and remanded with directions that judgment be entered in favor of appellee in accord with this opinion.

LETTS, C. J., ANSTEAD, J., and STONE, BARRY J., Associate Judge, concur.


author: DANIEL S. PEARSON, Judge.

text:
    ALLSTATE INSURANCE CO., Babcock Co. Builders, Babcock Industries, Inc. and Babcock Co., Appellants, v. A. D. H., INC., Unigard Insurance Co., et al., Appellees.
    No. 80-16.
    District Court of Appeal of Florida, Third District.
    March 17, 1981.
    Rehearing Denied May 20, 1981.

      Adams & Ward and Robert C. Ward and James W. Kaufman and Steven Kent Hunter, Miami, for appellants.
    Magill & Reid and Kevin P. O’Connor, Underwood, Gillis, Karcher, Reinert & Valle and Thomas R. Trompeter, Miami, for ap-pellees.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The collapse of a scaffold causing the death of one Williams gave rise to a suit by his widow, resulting in a jury finding Bab-cock Industries, Inc. and A.D.H., Inc. negligent and assessing damages of $1,000,00o. Babcock and A.D.H. instituted appeals from the judgment entered on the verdict, but when Babcock satisfied the judgment for $725,000, the appeals became moot and were dismissed.

Babcock then sued A.D.H. and Garber Construction Co. for indemnity. Babcock contended it was entitled to be indemnified upon the theory that Babcock was faultless in respect to Williams’ death and that the liability imposed on it by the jury was vicarious (otherwise stated, constructive, derivative or technical), that is, exclusively predicated on the negligence of A.D.H. or Gar-ber. A.D.H. and Garber asserted the defense of estoppel by judgment: (1) under Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1978), only a party shown to be totally without fault has a right of indemnification; (2) the jury’s undifferentiated general verdict finding Babcock “negligent” could mean that it found some fault in Babcock; and (3) therefore, Babcock has no right to indemnification. Accepting this analysis, the trial court entered summary judgment for A.D.H. and Garber. Babcock appealed. We reverse.

It is well settled that a party asserting the defense of estoppel by judgment has the burden of proving that the fact which it contends cannot be relitigated has been previously determined. Seaboard Coast Line Railroad Co. v. Industrial Contracting Co., 260 So.2d 860 (Fla. 4th DCA 1972); Corn v. Hoffman, 230 So.2d 188 (Fla. 4th DCA 1970); Wacaster v. Wacaster, 220 So.2d 914 (Fla. 4th DCA 1969); Hohweiler v. Hohweiler, 167 So.2d 73 (Fla. 2d DCA 1967); Stone v. Stone, 111 So.2d 486 (Fla. 3d DCA 1959).

It is true, as A.D.H. contends, that Babcock cannot show from the jury’s general verdict of negligence that Babcock was found to be faultless. But it is not up to Babcock, to show that it is not estopped by the jury’s verdict; rather, it is up to A.D.H., the party asserting this defense and seeking a summary judgment thereon, to show conclusively that the jury found Bab-cock at fault. That showing is simply not made by the jury’s general verdict of “negligence.”

This case is not unlike Seaboard Coast Line Railroad Co. v. Industrial Contracting Co., supra. There the railroad contracted with Industrial to build a bridge; Industrial agreed to indemnify the railroad for any injuries to railroad employees at the construction site caused by the negligent acts or omissions of Industrial or through any other than the sole negligence of the railroad or its employees. A railroad employee was injured and the railroad paid him $10,000. The employee, guided and financed by the railroad, sued Industrial, with the railroad to be repaid its $10,000 from any recovery. Industrial defended on the basis, inter alia, that it was not negligent, but, if it was, the railroad’s employee was contributorily negligent. The jury returned a general verdict “in favor of the defendant, Industrial Contracting Company, Inc.” Subsequently, the railroad, asserting that Industrial was negligent, sued Industrial to indemnify it under their contract for the $10,000 paid to the employee. Industrial moved for summary judgment, contending that Industrial’s absence of negligence had been determined in the employee’s prior suit against Industrial. The Fourth District Court of Appeal, holding that Industrial’s absence of negligence had not been clearly determined so as to entitle Industrial to summary judgment on its es-toppel by judgment defense, said:

“The former cause found ‘in favor of the defendant Industrial Contracting Company, Inc.’. Such a finding could have been premised upon the jury believing that Industrial was not negligent or that Industrial was negligent but that [the employee] was guilty of contributory negligence. Absent a special verdict on the issue of negligence or contributory negligence it is impossible to ascertain with any reasonable degree of certainty as to -what issue was adjudicated in the former suit except to say that the jury found in favor of Industrial. Such uncertainty as to the effect of the prior adjudication renders the doctrine of collateral estoppel inapplicable to the case sub judice. [citations omitted].” 260 So.2d at 865.

Even as Industrial’s absence of negligence had not been clearly determined by the verdict relied on in Seaboard Coast Line Railroad Co. v. Industrial Contracting Co., so the fault of Babcock was not determined by the equivocal jury verdict relied on by A.D.H. in the present case.

We therefore set aside the summary judgment and order taxing costs entered against the plaintiffs and remand the cause for further proceedings consistent with this opinion.

      .Babcock was the owner and general contractor of the project under construction; A.D.H. was the carpentry subcontractor; Garber was the masonry contractor. Garber was not sued by Williams’ widow, nor joined as a third-party defendant by Babcock. Garber admittedly had notice of the original litigation, but did not appear and defend. The judgment against Bab-cock and A.D.H., absent fraud or collusion, is conclusive against Garber as to all material questions determined. Atlantic Coast Development v. Napoleon Steel Contractors, Inc., 385 So. 2d 676 (Fla. 3d DCA 1980); MacArthur v. Gaines, 286 So.2d 608 (Fla. 3d DCA 1973).

      . Allstate Insurance Company, Babcock’s insurer, satisfied the judgment on Babcock’s behalf. By this payment, Allstate became subro-gated to Babcock’s indemnity rights. References to Babcock, A.D.H. and Garber in this opinion are intended to include their respective insurers.

      . Although this case was tried before Houdaille established the fault-no fault standard for indemnity, the active-passive standard was already well entrenched, see, e. g., General Motors Corporation v. County of Dade, 272 So.2d 192 (Fla. 3d DCA 1973). Under the standard extant at time of trial, an active tortfeasor was not entitled to indemnity. Had either of the parties requested a special verdict, the issue before us might be resolvable by reference to the verdict alone. Babcock’s failure to request a special verdict deprived it of being able to show from the verdict that the jury found it to be vicariously liable only; A.D.H.’s same failure deprived it of being able to show from the verdict that the jury found Babcock to be at fault. The absence of a special verdict means simply that we cannot determine from the verdict whether the jury found Babcock at fault or liable by virtue of another’s fault. This is not a situation where we are called upon to sustain a general verdict rendered on one of two or more theories. Were Babcock appealing from the jury’s general verdict of negligence, and asserting that there was insufficient evidence to show it to be with fault, we could sustain the verdict, if supportable, on a theory of vicarious negligence. Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1978); Lapidus v. Citizens Federal Savings & Loan Association, 389 So.2d 1057 (Fla. 3d DCA 1980).

      . While A.D.H.’s burden to establish the defense of estoppel by judgment is to show Bab-cock was previously found at fault, we make clear that in order to prevail in the indemnity action, it is Babcock’s burden to prove it was faultless. Houdaille Industries, Inc. v. Edwards, supra.

      . The complaint brought by Williams’ widow against Babcock, A.D.H., et al. and the final judgment rendered on the verdict were the only essential parts of the record of that case which were relied upon in support of A.D.H.’s claim that Babcock was estopped by the previous verdict and judgment against it. These documents are totally inadequate to show what was litigated and decided in the first action. It may be that a complete record of the first trial will not aid in resolving the issue of whether the jury found Babcock with fault or faultless. If the jury were instructed that it could only find Babcock liable if guilty of “active negligence,” then the jury verdict means it found Babcock to be at fault, and Babcock would be collaterally estopped on its claim for indemnity. If the jury were instructed that it could only find Babcock liable if it found A.D.H. or Garber negligent, then the jury verdict means that it found Babcock without fault, and- Babcock would be entitled to be indemnified. If the jury was given both instructions, then its finding of negligence remains equivocal. We further point out that since Babcock and A.D.H. abandoned their appeals from the judgment rendered against them, neither can now complain that the jury in the first trial was wrongfully instructed or that the evidence was insufficient to sustain any specific jury finding compelled by the instructions. Cf. Seaboard Coast Line Railroad Company v. Cox, 338 So.2d 190 (Fla.1976) (holding that a surviving minor child who had previously litigated the railroad’s liability for the wrongful death of one parent could not collaterally attack that result, even if incorrect, in a suit for the wrongful death of the other parent killed in the same accident).

      .Industrial contended this determination was res judicata or estoppel by judgment. Since the initial suit against Industrial was for its negligence, and the subsequent suit was based on the indemnity contract, the court found res judicata inapplicable. But since it was contended that the same issue was litigated in both, estoppel by judgment applied if the issue was clearly adjudicated in the first case.


author: ORFINGER, Judge.

text:
    James B. SNEED, Appellant, v. STATE of Florida, Appellee.
    No. 80-645.
    District Court of Appeal of Florida, Fifth District.
    March 25, 1981.
    Rehearing Denied May 13, 1981.

      James B. Gibson, Public Defender, James R. Wulchak, Chief, Appellate Division, and Thomas R. Mott, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Phillip D. Havens and James Dickson Crock, Asst. Attys. Gen., Daytona Beach, for ap-pellee.
   ORFINGER, Judge.

Appellant raises two issues in attacking his conviction for grand theft. He contends that the evidence was insufficient to support the jury’s verdict and that the trial court erred in allowing the prosecutor to submit evidence of a specific unrelated crime for which appellant was previously convicted. We find no merit in the first point, but agree on the second issue and reverse.

The evidence relied on to support the conviction was that on Saturday, August 18, 1979, appellant finished his shift at the gas station where he was employed, and having arranged to go fishing with a friend, took with him two money bags containing the station’s cash receipts, for the avowed purpose of dropping them off at the night depository box of the bank. Appellant and his friend stopped at the bank, but appellant did not deposit the bags. On the way to their fishing destination, they stopped at a convenience store so that appellant could make a phone call. There is dispute in the evidence about some of the events. For example, appellant testified that he did not deposit the money at the bank because he discovered an error in the deposit slip, and didn’t have another one; his companion testified that appellant indicated the depository was jammed. Appellant testified that when he stopped at the convenience store he left the bags in the van; his companion stated that appellant took the bags with him. There is no dispute that appellant did not deposit the money in the bank and that he took the bags with him on the fishing trip.

Appellant and his friend fished that day with the bags close by, and slept in the van that night. When they awoke the next morning, the money bags were gone. His companion suggested they call the police, but since appellant was on parole and out of his county without permission, he demurred. Instead, they continued fishing a while longer and then appellant asked his companion to help him fake a robbery to explain the missing money. His friend decided he could not go through with it and after appellant staged the robbery, reported the incident to the police. Appellant eventually admitted his false report.

Appellant testified at the trial, and his counsel asked him why he wanted to fake the robbery. Over the State’s objection, appellant responded that while he had been in jail before awaiting trial on another matter, he had been the victim of a homosexual rape and didn’t want to go back to jail. The State on cross examination then asked him the nature of the crime for which he had been tried and convicted, and over defense objection, appellant responded that he had been convicted of assaulting his daughter. Appellant now contends that permitting this testimony was prejudicial and warrants reversal.

In attempting to impeach a witness (including a testifying defendant), the State may elicit information as to that witness’s previous criminal convictions. The questioning is limited to determining if the witness has previously been convicted of a crime, and if so, how many times. If truthfully answered, the State can go no further. McArthur v. Cook, 99 So.2d 565 (Fla.1957). Even where the witness denies the conviction, the specific offense is identified only incidentally when the record of the conviction is offered into evidence. Fulton v. State, Fla., 335 So.2d 280, 284. If a defendant chooses to first bring out the conviction in an effort to soften its effect, the State is not authorized to inquire further than it would otherwise have been allowed to. Leonard v. State, 386 So.2d 51 (Fla.2d DCA 1980).

Cross examination regarding an irrelevant criminal incident constitutes reversible error.. Pack v. State, 360 So.2d 1307 (Fla.2d DCA 1978); Henry v. State, 356 So.2d 61 (Fla. 4th DCA 1978). The nature of the crime for which appellant was previously convicted is not relevant to any issue in this case. Since appellant’s credibility was a critical factor for the jury’s consideration, we have no way of knowing how the overtones of the crime of “assaulting his daughter” might have affected the jury. Without a doubt, the repulsive implications of this irrelevant crime would have some effect. Appellant was entitled to a fair trial free from irrelevant prejudicial testimony.

The State argues that appellant “opened the door” to cross examination regarding the nature of his offense and relies on Coxwell v. State, 361 So.2d 148 (Fla.1978), as authority for the proposition that any matter brought out on direct examination may be enlarged and inquired into on cross examination. However, Coxwell does not indicate that irrelevant, prejudicial material may be elicited on cross examination. Rather, that case applies its principles only to germane and plausibly relevant testimony. Coxwell at 152. The nature of the prior criminal conviction was in no way relevant or germane to any issue here. The defense did not “open the door” as alleged by the State to this questioning. Cf., Dodson v. State, 356 So.2d 878 (Fla.3d DCA 1978); cert. denied, 360 So.2d 1248 (Fla.1978).

The judgment of conviction is reversed and the cause is remanded for a new trial.

REVERSED and REMANDED for new trial.

COBB and SHARP, JJ., concur.


text:
    SAY SERVICE, INC., Appellant, v. Bob W. YOUNG et al., Appellees.
    No. 80-1575.
    District Court of Appeal of Florida, Third District.
    March 31, 1981.
    Rehearing Denied May 27, 1981.
    Greenfield & Duval and Stanley Caidin, North Miami, for appellant.
    Hays & Grundwerg and Richard J. Hays, Miami, for appellees.
    Before NESBITT and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Hull v. Maryland Casualty Company, 79 So.2d 517 (Fla.1954).


author: •COWART, Judge.

text:
    Philip David HUNKER, Appellant, v. STATE of Florida, Appellee.
    No. 80-987.
    District Court of Appeal of Florida, Fifth District.
    April 1, 1981.
    James B. Gibson, Public Defender, and Ronald K. Zimmet, Chief, Appellate Division, Asst. Public Defender, Daytona Beach, for appellant.
    No appearance by appellee.
   •COWART, Judge.

An order denying a petition for reduction or modification of sentence under Florida Rule of Criminal Procedure 3.800(b) is discretionary and not appealable. Suggs v. State, 358 So.2d 897 (Fla. 2nd DCA 1978); Hallman v. State, 343 So.2d 912 (Fla.2d DCA 1977), aff’d, 371 So.2d 482 (Fla.1979).

Accordingly, this appeal is

DISMISSED.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.


author: COWART, Judge.

text:
    Mack McRAE, Appellant, v. STATE of Florida, Appellee.
    No. 80-585.
    District Court of Appeal of Florida, Fifth District.
    April 1, 1981.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COWART, Judge.

A judgment and sentence based on a guilty plea is normally not appealable.

See § 924.06(3), Fla.Stat. (1979); Fla.R.App.P. 9.140(b); Robinson v. State, 373 So.2d 898 (Fla.1979); Counts v. State, 376 So.2d 59 (Fla.2d DCA 1979).

The appeal is

DISMISSED.

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


text:
    Oswald MORALES, Appellant, v. Hilda MORALES, Appellee.
    No. 80-1567.
    District Court of Appeal of Florida, Third District.
    April 7, 1981.
    Rehearing Denied May 27, 1981.

      Leib, Martinez & Mark and Lawrence R. Davidson, Coral Gables, for appellant.
    Harold Peter Barkas, Miami, for appellee.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Oswald Morales appeals an order compelling him to pay under threat of contempt $2,000 in attorney’s fees and $164.23 in costs to the wife’s attorney, Harold P. Barkas. The order was entered pursuant to Barkas’ post-decretal motion, which alleged that Paragraph 10 of the Property Settlement Agreement between the Moraleses clearly and unambiguously provided that “... Husband agrees to pay to ... Barkas, the Wife’s attorney, the sum of $2,000 and costs of this litigation,” and that these amounts were not paid. The husband and wife contended in sworn pleadings in opposition to this motion that when the wife hired Bar-kas, at Barkas’ insistence she paid him a retainer of $2,500; that the design of Paragraph 10 was (a) to memorialize the understanding that Barkas was to receive the grand total of $2,000 as an attorney’s fee for what turned out to be an abbreviated and uncomplicated matter, and (b) to make the payment of the fee the husband’s responsibility. The husband and wife asserted that the husband had paid the wife the $2,000 and that therefore Barkas owed the wife $335.77, that is, the difference between the retainer of $2,500 and the $2,000 fee plus costs finally agreed upon. Barkas’ position is that he was entitled to both the $2,500 admittedly received by him and the $2,000 and costs which the husband undertook to pay in the agreement.

While Paragraph 10 of the Property Settlement Agreement may be, as the trial court found, clear and unambiguous, what is clear and unambiguous is only that the husband is to pay Barkas $2,000 as attorney’s fees. What is uncertain is whether Barkas was to reimburse Mrs. Morales, that is, whether the provision was intended as a benefit to Mrs. Morales, not as an additional payment to Barkas. If the agreement contained language to the effect that the $2,000 fee and costs were to be in addition to the $2,500 already paid to Barkas by Mrs. Morales, then we could conclude that it clearly and unambiguously mandated the result reached by the trial court. But Paragraph 10, in the face of the Moraleses’ allegations, does not unmistakably lead to that result. The oral agreement which the Moraleses say existed is not one which is displaced by, or at variance with, the written understanding embodied in Paragraph 10. Indeed, the alleged substance of the oral agreement is simply not dealt with in Paragraph 10, and, if shown, would be consistent with the language of Paragraph 10. Under such circumstances, evidence of the separate parol agreement should have been received by the trial court at an evidentiary hearing to determine what the parties intended by Paragraph 10. Payne v. Nicholson, 100 Fla. 1459, 131 So. 324 (1932); Little River Bank & Trust Company v. North American Mortgage Corporation, 186 So.2d 263 (Fla.2d DCA 1966); B. F. Goodrich Company v. Brooks, 113 So.2d 593 (Fla.2d DCA 1959).

Reversed and remanded for further proceedings consistent with this opinion.

      . While Mr. Morales raises the issue that the trial court cannot, in any event, hold him in contempt for failure to pay Barkas, we do not reach that issue because (a) our decision makes it unnecessary, and (b) no contempt order was entered.


author: BASKIN, Judge.

text:
    George HIDALGO, Appellant, v. Claude DORSY, Roger A. Bridges, John S. Murphy, Mary Lou Murphy, and Jardree Enterprises, Inc., a Florida corporation, Appellees.
    No. 80-1612.
    District Court of Appeal of Florida, Third District.
    April 7, 1981.
    Rehearing Denied May 27, 1981.
    Del Castillo & Knott and Roderick Knott, Coral Gables, for appellant.
    Roger A. Bridges, Claude Dorsy, Philip Nemeth, R. Stuart Huff, Coral Gables, for appellees.
    Before BASKIN and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   BASKIN, Judge.

George Hidalgo appeals an Order Dismissing Complaint With Prejudice and Denying Motion for Leave to Amend. His suit was predicated upon a contract in which he and another person agreed to purchase fifty percent of the stock of Jardree Enterprises, Inc. in exchange for an agreement to pay half the future costs with a period of seven months allowed for the exercise of certain options. An addendum to the original agreement provided that the buyer’s option to purchase the remaining stock would be extended for a period of one year:

In the event that at any time subsequent to the closing and after the Purchasers have paid $80,000.00 a bona fide 3rd party shall offer to buy all or any part of the project which the sellers wish to accept, they shall notify purchasers of said offer and the purchasers shall thereafter have 15 days to:
a) Accept 20,000 profit and a return of the 80,000 investment; purchaser shall thereafter have no interest in the project, return any stock issued and the parties shall mutually release one another; or
b) Remain 25% owners of the stock and agree that seller is under no obligation to return the initial 80,000 payment of purchasers. In such event, the Purchasers option to purchase the remaining 25% of the stock will be extended to one year from date of closing or upon the issuance of a permanent mortgage commitment, whichever earlier occurs. Such option being exercisable by buyers at any time thereto, (emphasis supplied).

Two years after the contract was executed, the corporation sold property it owned to Mr. and Mrs. Murphy. Four years after the agreement was executed, appellant Hidalgo sued contending he was entitled to the return of his investment and a profit of $10,000. His action was predicated upon allegations of breach of contract and tortious interference by the Murphys with his business relationship under the contract. We affirm the trial court’s dismissal and denial of the motion to amend.

Insofar as the breach of contract action is concerned, the contract, which was attached to the complaint as an exhibit pursuant to Florida Rule of Civil Procedure 1.130(a), became a part of the pleading. McClurkin v. Parrish Volvo, Inc., 317 So.2d 85 (Fla.1st DCA 1975). When read as a whole, see Mount Vernon Fire Insurance Co. v. Editorial America, S.A., 374 So.2d 1072 (Fla.3d DCA 1979), the contract clearly indicates its intent that the return of appellant’s investment was required to be sought within the seven-month period, not “at any time”. The interpretation sought by appellant lacks time limitations and is unreasonable.

Appellant contends the Murphys induced appellees Claude Dorsy, Roger Bridges, and Jardree Enterprises, Inc. to breach the contract by entering into an agreement to purchase the assets of the corporation and that the result of this agreement was that appellant could not be compensated according to the terms of the contract. These circumstances do not provide an action for tortious interference with a contractual relationship. See Nitzberg v. Zalesky, 370 So.2d 389 (Fla.3d DCA 1979).

The remaining allegations concerning stockholders’ derivative actions were abandoned by appellant.

Since it appears that appellant could not reframe the complaint to state a cause of action, the court correctly denied his Motion for Leave to Amend. Matson v. Tip Top Grocery Co., 151 Fla. 247, 9 So.2d 366 (1942); Wolfson v. Moye, 214 So.2d 629 (Fla.3d DCA 1968).

Affirmed.

      . The other purchaser, Anthony Balzebre, is not a party to this suit.

      . The $10,000 amount seems to be based on half the $20,000 profit-taking option provided for in the contract.

      . The complaint at issue is an amended complaint. This was appellant’s second attempt to frame a complaint sufficient to withstand a motion to dismiss.