author: DOWNEY, JAMES C., Associate Judge.

text:
    Randolph Stewart WILSON, Appellant, v. STATE of Florida, Appellee.
    No. XX-230.
    District Court of Appeal of Florida, First District.
    Nov. 23, 1981.
    James L. Harrison, Jacksonville, for appellant.

      Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.
   DOWNEY, JAMES C., Associate Judge.

Appellant contends his conviction and sentence should be reversed and a new trial granted because the State’s primary witness testified falsely concerning beneficial treatment he was to receive from the State on his pending criminal charges in return for the witness’s testimony for the State and against the appellant in this case. There is no record support for this assertion. However, appellant has submitted a transcript of the witness’s plea proceeding in another case, which appellant contends demonstrates that the State negotiated “a deal” with the witness for more lenient treatment if he testified favorably for the State in appellant’s trial.

Appellant suggests that we take judicial notice of the plea proceeding in the other case and reverse the trial judge in this case. We do not feel that judicial notice is appropriate in these circumstances. Our appellate function is to review judicial acts of the trial court. But the argument appellant presents here was never presented to the trial judge, and he would no doubt find it odd to be reversed on a matter never presented to him.

If there is merit in appellant’s contention vis-a-vis his entitlement to a new trial, the orderly way to obtain relief therefor under the circumstances of this ease would appear to be by motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

Accordingly, the judgment and sentence appealed from is affirmed without prejudice to appellant’s right to seek appropriate post conviction relief.

ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant, v. Harold SIDBERRY, Jr., Appellee.
    No. ZZ-42.
    District Court of Appeal of Florida, First District.
    Nov. 23, 1981.

      Robert P. Gaines of Beggs & Lane, Pensacola, for appellant.
    Louis K. Rosenbloum of Levin, Warfield, Middlebrooks, Mabie & Magie, P. A., Pensacola, for appellee.
   PER CURIAM.

The St. Louis-San Francisco Railway Company (Frisco) appeals a judgment following a jury trial for damages incurred in an automobile-locomotive collision. The collision occurred at an unmarked grade crossing. Frisco raises four issues, three of which we find to be without merit.

However, we agree with appellant that § 627.7372(1), Florida Statutes (1977) requires a jury instruction directing a reduction in the damage award by the amount received from the collateral source. See Purdy v. Gulf Breeze Enterprises, Inc., 403 So.2d 1325 (Fla.1981), rehearing denied October 19, 1981; McKee v. City of Jacksonville, 395 So.2d 222 (Fla. 1st DCA 1981). A remittitur equal to the amount received from the collateral source is an appropriate remedy, avoiding the need for a trial on the issue of damages.

The judgment is AFFIRMED in part and REMANDED with instructions to enter a remittitur in accordance with this opinion.

BOOTH, LARRY G. SMITH and SHIVERS, JJ., concur.

      . 627.7372 Collateral sources of indemnity.
      (1) In any action for personal injury or wrongful death arising out of the ownership, operation, use of maintenance of a motor vehicle, the court shall admit into evidence the total amount of all collateral sources which have been paid to the claimant prior to the commencement of the trial. The court shall also admit into evidence any amount paid by the claimant to secure such collateral source.

      . The section is now amended to expressly require this. Chapter 78-374, Laws of Florida.


author: MILLS, Judge.

text:
    SOUTH MIAMI HOSPITAL and Travelers Insurance Company, Appellants/Cross-Appellees, v. Migdalia FAZ, Appellee/Cross-Appellant.
    No. ZZ-166.
    District Court of Appeal of Florida, First District.
    Nov. 23, 1981.
    Guy A. Gladson, Jr. of Gladson & Sullivan, Miami, for appellants/cross-appellees.
    Edward Schroll, Miami, for appel-lee/cross-appellant.
   MILLS, Judge.

The employer/carrier appeal and the claimant cross appeals from a deputy commissioner’s order awarding 50 percent permanent partial disability benefits based upon a physical and psychological impairment but reversing jurisdiction for the purpose of determining wage-earning capacity loss.

Four points are raised in this appeal but only one merits discussion. The employer/carrier argue the deputy erred in failing to dismiss claimant’s claim for wage-earning capacity loss since she failed to conduct a work search.

The claimant, in her cross-appeal, urges the deputy erred in reserving jurisdiction on her claim for wage-earning capacity loss because the medical evidence established that she was unable to work; therefore, no work search was needed, and the deputy should have found her permanently and totally disabled. We affirm the deputy’s order except as to the issue concerning his reservation of jurisdiction, which we reverse.

The issue of wage-loss benefits was properly before the deputy and was mature and ripe for adjudication. He therefore, should have ruled on the issue based on the evidence before him. “The deputy had no authority to reserve jurisdiction to rule on this issue, which was properly noticed and ready for adjudication.” Poole and Kent Co. v. Asbell, 394 So.2d 1112 (Fla. 1st DCA 1981); Coe v. Kentucky Fried Chicken, 393 So.2d 1156 (Fla. 1st DCA 1981).

Although claimant failed to conduct a work search, there is medical evidence indicating she is unable to work. “As a matter of law, a claimant’s recovery cannot be predicated upon wage-earning capacity loss criteria absent an adequate job search or its excusal.” City of Hollywood v. Castora, 380 So.2d 1148 (Fla. 1st DCA 1980).

We, therefore, remand to the deputy commissioner for a finding on the record presently before him as to claimant’s wage-earning capacity loss, if any, in excess of her anatomical impairment and a finding of whether claimant’s lack of a work search is excused in this case.

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


author: ROBERT P. SMITH, Jr., Chief Judge.

text:
    Ronald D. BARNES, Appellant, v. STATE of Florida, Appellee.
    No. ZZ-372.
    District Court of Appeal of Florida, First District.
    Nov. 23, 1981.

      Michael E. Allen, Public Defender, and Theodore E. Mack, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

Barnes appeals his judgment of conviction for armed robbery and six counts of aggravated assault, contesting the trial court’s denial of his motion to suppress certain evidence of the robbery. He contends the court erred in finding exigent circumstances justifying the warrantless search of his automobile, which yielded evidence of his identity leading to his arrest and seizure of the challenged evidence. We affirm.

The evidence discloses that Barnes held up a restaurant at gunpoint, threatened several of its patrons in its parking lot as he fled, and then took off in what witnesses told police was a small red foreign car bearing a certain license tag number. Within 45 to 50 minutes after the robbery, police located this car at a busy motel a mile and a half away. Officials told police they could not trace ownership of the car through the tag number until the following morning. The motel register disclosed no guest with a car bearing this license number. Inquiry by the police at rooms on two floors of the motel produced no leads. At this point, police searched the car based on a belief it would contain evidence to help them continue their investigation quickly. The search turned up a bill of sale of the car to an individual registered at the motel, then arrested, who turned out to be Barnes.

Under these facts, we find sufficient exigent or emergency circumstances to justify the immediate warrantless search of the car for clues to the identity and location of the robber. As the District of Columbia Circuit Court of Appeals observed in the similar case of United States v. Robinson, 533 F.2d 578, 583 (D.C. Cir. 1976):

There was a need to proceed as quickly as possible to apprehend the robbers who had used this as the getaway car in an armed bank robbery consummated about an hour prior to the search. There was strong probable cause to believe this was the getaway car. Bank robbers known to have been armed were at large, posing current dangers to the police and other citizens. An immediate search of the car could well produce the information needed to speedily apprehend the culprits. Delay to obtain a warrant would have impeded a promising police investigation and conceivably produce the added time needed by the bank robbers to avoid capture altogether.

See also United States v. Shye, 473 F.2d 1061 (6th Cir. 1973).

We find no other error, so the judgment of conviction is AFFIRMED.

McCORD and MILLS, JJ., concur.


text:
    EISENHOWER CONSTRUCTION CO. and Maryland Casualty Co., Appellants, v. William BERG, Appellee.
    No. AB-124.
    District Court of Appeal of Florida, First District.
    Nov. 23, 1981.

      Bernard J. Zimmerman and William G. Berzak of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Donna L. Bergh of Walker, Buckmaster, Miller & Ketcham, P.A., Orlando, for appel-lee.
   ROBERT P. SMITH, Jr., Chief Judge.

The employer and carrier appeal a deputy commissioner’s order finding a causal connection between claimant’s neck and back injury by industrial accident in January 1980 and claimant’s collapse while mowing his lawn at home in mid-July, resulting in the medical expenses for which this claim was made. Though claimant’s back hurt as he revived and during his hospitalization, there is no substantial competent evidence that claimant’s collapse was an effect of his January industrial injury, and the medical opinion to the contrary was uncontroverted. For this reason it was error to award medical benefits and attorney’s fees. We do not reach the other questions presented.

REVERSED.

MILLS and SHIVERS, JJ., concur.


text:
    Clarence J. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. AB-248.
    District Court of Appeal of Florida, First District.
    Nov. 23, 1981.

      P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

In June, 1975 appellant was placed on probation for five years after pleading guilty to a charge of breaking and entering. On March 21,1979 an Affidavit of Violation of Probation was filed which alleged that appellant had failed to file a monthly report for February 1979, had failed to make restitution payments as required, and had failed to pay costs of supervision. However, no action was taken on the Affidavit until after the probationary period had ended. On January 14, 1981 an “amended” Affidavit of Violation of Probation was filed which re-alleged the 1979 violations. The amended affidavit also contained allegations regarding criminal charges that had been filed against appellant for acts occurring in August 1980. After a hearing, appellant’s probation was revoked and he was sentenced to five years in prison on the 1975 breaking and entering charge. The judge issued no written findings on which he based his opinion. He merely stated at the revocation hearing that he found that the defendant had violated the terms of his probation.

The criminal acts which the defendant was alleged to have committed occurred after his probationary period had expired. Therefore, it was improper to revoke probation based on those allegations. Jess v. State, 384 So.2d 328 (Fla. 3rd DCA 1980). In addition, it was not proper to revoke appellant’s probation on the basis of the 1979 allegations that he failed to make restitution and cost of supervision payments. This is so because the record is void of any evidence showing that the defendant was able to make the payments. Peterson v. State, 384 So.2d 965 (Fla. 1st DCA 1980). Therefore, the judge should not have based the revocation order on the failure to make restitution and supervision payments, or the 1980 criminal acts.

The only remaining allegation of probation violation was the failure to submit a monthly report for the month of February, 1979. This allegation was proved through the testimony of a probation officer who was custodian of appellant’s file. He testified that there were no monthly reports in the file dated after January 31, 1979. This testimony was admissible under § 90.803(7) Fla.Stat. (1979), and was sufficient to prove the charge that appellant had not submitted a report for the month of February, 1979.

Because we cannot determine from the record whether the trial court considered the improperly alleged violations, the cause is remanded for further proceedings consistent with this opinion.

SHAW, JOANOS and THOMPSON, JJ., concur.


author: WENTWORTH, Judge.

text:
    Louis SHANNON, Appellant, v. STATE of Florida, Appellee.
    No. AF-482.
    District Court of Appeal of Florida, First District.
    Nov. 23, 1981.

      Louis Shannon, pro se.
    No appearance for appellee.
   WENTWORTH, Judge.

Louis Shannon appeals from the trial court’s denial of his motion for post-conviction relief, Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.

Shannon alleged the following grounds for relief in his motion for post-conviction relief: (1) that he was denied his speedy trial rights; (2) that he was charged with a defective and misleading information; (3) that he had been denied effective assistance of counsel; and (4) that there was no factual basis for the trial court to accept his nolo contendere plea. The trial court summarily denied Shannon’s motion.

Issues (1), (2), and (3) are all issues which either have been raised in a previous motion for post-conviction relief or could have been raised on direct appeal. Accordingly, there is no basis for relief on these allegations. Shannon’s fourth allegation stands in a somewhat different posture. Florida Rule of Criminal Procedure 3.170(j) provides:

No plea of guilty or nolo contendere shall be accepted by a court without first determining, in open court, with means of recording the proceedings stenographically or by mechanical means, that the circumstances surrounding the plea reflect a full understanding of the significance of the plea and its voluntariness, and that there is a factual basis for the plea of guilty, (emphasis supplied)

The purpose of the underlined phrase is to insure that the facts of the case fit the offense for which the defendant was charged. Williams v. State, 316 So.2d 267 (Fla.1975). It is intended to remedy an unwitting admission of guilt to a crime which the defendant did not commit. Bright v. State, 317 So.2d 864 (Fla.4th DCA 1975). However, the defendant must demonstrate that he has been prejudiced or has suffered a manifest injustice by the particular guilty or nolo contendere plea procedure used in his case. Williams, supra. Here, Shannon alleged that there was no factual basis for the Court to accept his plea, that he denied commission of the crimes at the plea bargaining hearing, and that the judge accepted the plea anyway which he was not supposed to have done. We find that such an allegation is sufficient to survive the trial court’s summary denial of Shannon’s motion:

Where a defendant raises the possibility of a defense to his guilty plea, the potential prejudice is apparent. In such circumstances, a trial judge should make extensive inquiry into factual basis before accepting the guilty plea. Correspondingly, the showing in the record of the source of the factual information supporting the plea should be made with greater specificity. . . . (emphasis in original; citations omitted)

State v. Kendrick, 336 So.2d 353, 355 (Fla.1976).

We therefore reverse and remand for the trial court to either attach those portions of the record effectively refuting Shannon’s claim or to afford him an evidentiary hearing on his allegation.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

SHAW and THOMPSON, JJ., concur.


author: DANIEL S. PEARSON, Judge. PEARSON, TILLMAN (Ret.), Associate Judge,

text:
    Jesse Joseph TAFERO, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1121.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 1981.

      Carol King Guralnick, Miami, for appellant.
    Jim Smith, Atty. Gen., Anthony Musto, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ. and PEARSON, TILLMAN (Ret.), Associate Judge.
   DANIEL S. PEARSON, Judge.

A decade after we affirmed on direct appeal Jesse Tafero’s 1967 convictions for the multiple offenses of assault with intent to commit rape, a crime against nature, entering a residence with intent to commit robbery, and robbery, see Tafero v. State, 223 So.2d 564 (Fla.3d DCA), cert. denied, 225 So.2d 912 (Fla.1969), Tafero moved the trial, court to grant him a new trial under Florida Rules of Criminal Procedure 3.580 and 3.600. His claim for relief was based on assertions that years after his convictions had become final, (a) a third party confessed that he, not Tafero, had committed the crimes, and (b) he first learned that the two victims of the crimes had admitted to another third party that their trial testimony identifying Tafero as a perpetrator was perjurious. The trial court, after conducting an evidentiary hearing, denied a new trial. Tafero appeals.

I.

The Trial Court’s Jurisdiction

Tafero’s motion for new trial based on asserted newly discovered evidence was, as the trial court recognized, untimely. The motion was filed in March 1979, more than eleven years after the convictions. In 1967, Florida Rule of Criminal Procedure 3.590(a) provided that such a motion be made within four days, or, with the court’s permission, within fifteen days, after rendition of the verdict. The time limit provided in the rule is jurisdictional. Hallman v. State, 371 So.2d 482 (Fla.1979); Thomas v. State, 250 So.2d 308 (Fla. 4th DCA 1971); Murray v. State, 191 So.2d 292 (Fla.3d DCA 1966). Most certainly, Tafero’s motion came too late to entitle him to relief under this rule.

Equally certain is that the trial court could not obviate this jurisdictional impediment by treating the untimely motion for new trial as a petition for writ of coram nobis. Without leave of the appellate court which affirmed the conviction on appeal and issued its mandate, a trial court is without jurisdiction to consider the coram nobis petition which seeks to set aside that conviction. Smith v. State, 400 So.2d 956 (Fla.1981). See also Hallman v. State, supra. Since it is this court which affirmed Tafero’s conviction, and since our leave to petition the trial court for coram nobis relief was neither sought nor given, the trial court was without jurisdiction to consider Tafero’s claims for relief as such a petition.

II.

The Sufficiency of the Motion As A Coram Nobis Application

Following the implicit teaching of Hallman v. State, supra, that the interest of judicial economy is best served by concluding this matter here and now without requiring Tafero to comply with the foregoing procedural requirement, we treat Tafe-ro’s appeal as a request for permission to apply to the trial court for a writ of error coram nobis. Applying the Smith-Hallman test for determining the sufficiency of Tafero’s application, we decide that the alleged new facts, had they been presented to the trial court in 1967, would not “conclusively have . . . prevented the entry” of the convictions; and, therefore, the petition must be denied.

The facts elicited at Tafero’s 1967 trial are essentially recounted in our prior opinion affirming Tafero’s conviction:

“Miss C.A.B. and Miss C.R. shared an apartment in Bay Harbor Islands, a municipality near the City of Miami Beach, Miss C.A.B. was awakened about 6:00 A.M., March 4,1967, by a man with a gun who referred to himself as Billy. Miss C.A.B. testified that Billy got into bed with her and forced her to commit an unnatural sex act upon him. Miss C.R. arrived home at about 6:30 A.M. Her roommate opened the door for her. When she entered she saw a naked man with a nylon stocking over his face. He forced Miss C.R. into the bedroom where he tied her hands and feet behind her while she lay on the floor.
“At approximately 8:30 A.M., in response to a telephone call from Billy, a second man came to the apartment. He was called Jessie by his companion. Jessie forced Miss C.R. to have intercourse with him and used force upon her in an attempt to have her perform an unnatural sex act upon him. This attempt failed. But Jessie did force Miss C.A.B. to perform an unnatural sex act upon him. The men later ransacked the apartment. Miss C.R. was blindfolded and unblind-folded several times during the approximately eleven hours the men held her and Miss C.A.B. captive. Miss C.A.B. was not blindfolded. Billy’s face was masked only part of the time. Jessie’s face was not masked. At about 5:00 P.M. the suspicions of a neighbor were aroused, and when he attempted to enter the apartment forcibly, the two men escaped by jumping from the balcony.” 223 So.2d at 566.

Our prior opinion also observed that the victims, Miss C.R. and Miss C.A.B., testified that they separately identified Tafero as the man they knew as Jessie in a photo lineup and a live lineup. Each identified Tafero in court. Although Tafero’s trial counsel did not object to this identification testimony, Tafero challenged this testimony on direct appeal. In answer to this challenge, we found that the record contained unequivocal testimony by both victims that Tafero was the perpetrator and that the identification procedures were in no way suggestive. Tafero v. State, 223 So.2d at 567, 568.

The coram nobis test requires that we envision that Tafero’s 1967 trial included the confession of a third party that he, not Tafero, was the man called Jessie, and the statement of another witness that Misses C.R. and C.A.B. admitted to him that they knew Tafero was not the perpetrator of the crimes. The most that can be said about this new evidence is that, if believed, it would probably have changed the verdict of the jury. While that is sufficient to satisfy the applicable test for a timely motion for new trial, it is not sufficient under the test for eoram nobis. Clearly, since the third party confession and the impeachment testimony would not render the trial testimony of Misses C.A.B. and C.R. insufficient so as to require the trial court to enter a judgment of acquittal in Tafero’s favor and, at best, would raise a jury question as to the identity of the perpetrator, the newly discovered evidence would not have conclusively prevented the entry of the 1967 convictions. Therefore, had Tafero’s application been made to us, we would have denied him permission to apply to the trial court for a writ of error coram nobis, and now, treating his appeal as such an application, we deny it.

III.

An Appeal To The Wrong Court

Tafero’s efforts, below and here, are not those of a man seeking to undo now fourteen-year-old convictions merely to cleanse his record. As his brief so poignantly tells us, the 1967 convictions later played a critical part in Tafero receiving, and the Florida Supreme Court affirming, see Tafero v. State, 403 So.2d 355 (Fla.1981), death penalties for murders committed by Tafero in 1976, while on parole from the convictions he now attacks. He urges us to consider this fact in determining whether he is enti-tied to relief from his 1967 convictions and, in effect, carve a special rule in such cases This we cannot do. Smith v. State, supra; Hallman v. State, supra.

We do, however, emphasize that we decide only that Tafero’s coram nobis petition must fail because not within the discrete reach of that writ. Whether this same evidence should be considered in mitigation of the aggravating factors used to justify the imposition of the death penalty is a question not before us and one which must be directed to the courts which imposed and affirmed that penalty. Had Tafero sought to present evidence of this nature at his death penalty hearing, its admission would have been required. Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (denial of due process to exclude at death penalty sentencing hearing evidence that Green’s co-defendant admitted to third party that he killed the victim in Green’s absence); Mines v. State, 390 So.2d 332 (Fla.1980) (error to deny defendant right to introduce at death penalty hearing evidence of mental and emotional disturbance, despite rejection of insanity defense at guilt phase of trial). And see Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Perry v. State, 395 So.2d 170 (Fla.1981) (a defendant may not be precluded from offering as a mitigating factor any aspect of his character and record). Cf. Davis v. State, 597 S.W.2d 358 (Tex.Crim.App.1980) (state may introduce at death penalty hearing evidence of the details of defendant’s prior convictions to enable jury to understand range and severity of defendant’s prior conduct). Assuming, arguendo, that the evidence discovered after Tafero’s 1967 trial was likewise discovered after his 1976 death penalty proceeding and was unavailable beforehand, the question to be answered another day by another court is whether Tafero can have this evidence considered in mitigation of the death penalty, despite its earlier affirmance by the Supreme Court.

Accordingly, we affirm the trial court’s denial of Tafero’s motion to vacate under Rule 3.850; we treat Tafero’s appeal from the trial court’s denial of his motion for new trial as a petition for writ of coram nobis and deny such petition.

PEARSON, TILLMAN (Ret.), Associate Judge,

concurring especially.

I concur in the majority’s affirmance. However, I would note that even if appellant’s claim for relief was cognizable via a motion for new trial, affirmance would still be mandated. This is so because the trial judge made the requisite finding that even if the newly-discovered evidence had been presented at trial, “it is not probable that it would have changed the verdict or the finding of the trial court.” The majority opinion states that the new evidence, if believed, would probably have changed the verdict and would have been sufficient to satisfy the applicable test of a timely motion for new trial. However, the majority, in footnote 9, correctly points out that the “trial court concluded that neither the third party confessor nor the third party witness was worthy of belief.” Appellant has failed to demonstrate that the trial judge abused his discretion (a) in determining that the testimony of Lesier and Sheley was not worthy of belief and (b) in denying the motion for new trial. Weston v. State, supra; Walden v. State, 310 So.2d 426 (Fla.3d DCA 1975).

      . After his convictions, which stemmed from a single criminal episode which began near dawn and ended near dusk on March 4, 1967, Tafero served approximately six years of the cumulative twenty-five-year sentence imposed and was released on parole.

      . This evidence was indisputably not known by Tafero at the time of his trial. That which was known, Tafero’s appellate afterthoughts, earlier found its way into a collateral attack filed on the heels of his unavailing direct appeal. In 1971, we affirmed the denial of that motion to vacate. See Tafero v. State, 242 So.2d 470 (Fla.3d DCA 1971).

      . Rule 3.590(a) was later amended to provide for a ten-day period within which to file a motion for new trial.

      . While Hallman at one point states that the writ of error coram nobis can be issued only by the affirming appellate court, 371 So.2d at 484, it is apparent that the annulment of the judgment is actually accomplished by the trial court which conducts the evidentiary hearing after the appellate court has determined the legal sufficiency of the petition and granted leave to the trial court to proceed. See Chambers v. State, 117 Fla. 642, 158 So. 153 (1934).

      . The Florida Supreme Court’s denial of certio-rari without opinion, Tafero v. State, 225 So.2d 912 (Fla.1969), does not constitute an affirmance of Tafero’s conviction so as to make it necessary for Tafero to seek leave of that court. See Knight v. Munday Plastering Company, 220 So.2d 357 (Fla.1969) (a denial of certiorari comprehends no decision on the merits).

      . We note that as an alternative to his motion for new trial, Tafero sought to vacate his convictions under Florida Rule of Criminal Procedure 3.850. While a motion under Florida Rule of Criminal Procedure 3.850 knows no time limits and may be filed in the trial court without leave of the affirming appellate court, newly discovered evidence is not a basis for relief under that rule. Smith v. State, supra; Hallman v. State, supra. The contrary suggestion in earlier cases, see, e. g., State v. Gomez, 363 So.2d 624 (Fla.3d DCA 1978); Walden v. State, 310 So.2d 426 (Fla.3d DCA 1975); Kellerman v. State, 287 So.2d 702 (Fla.3d DCA 1973); State v. Pitts, 241 So.2d 399 (Fla. 1st DCA 1970), vacated on other ground, Pitts v. State, 247 So.2d 53 (Fla.1971); Diamond v. State, 233 So.2d 418 (Fla. 4th DCA 1970); Fast v. State, 221 So.2d 203 (Fla.3d DCA 1969) was, in our view, overruled, sub silentio, by Hallman and Smith. See Henzel v. State, 390 So.2d 397, 399 n.2 (Fla.3d DCA 1980). The cases suggesting that newly discovered evidence was a basis for 3.850 relief were, for the most part, decided under the mistaken belief that coram nobis had been supplanted by Rule 3.850 or its predecessor, Rule 1.850. The only assertion in Tafero’s motions cognizable under Rule 3.850 was that the State violated the mandate of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), when it withheld evidence of an initial description of the attacker made by the victims inconsistent with their later identification of Tafero. This ground is totally without merit. To this day, Tafero has failed to point to the existence of such evidence; his counsel’s suggestions during the 1967 trial that such evidence existed are, moreover, the most telling indication that counsel, by the use of due diligence, should have then discovered such evidence; there is absolutely no showing that the State was aware of, no less intentionally withheld, such descriptions; and other inconsistent descriptions made by the victims were made available to defense counsel during the 1967 trial. Therefore, the trial court’s denial of Tafero’s Rule 3.850 motion is affirmed on the ground that this Brady claim is without merit, and the newly discovered evidence claims are not cognizable under this rule.

      . The trial court undoubtedly had this same judicial economy in mind when, although recognizing that the coram nobis application should have been made to this court, it proceeded with the evidentiary hearing.

      . Neither Miss C.A.B. nor Miss C.R. was called to testify at the hearing. This new evidence is, therefore, impeachment, not recantation. However, had these two witnesses testified under oath at the hearing on the motion for new trial that they had lied at Tafero’s trial, and that some other person committed the crimes, this testimony, if believed, see Mollica v. State, 374 So.2d 1022 (Fla.2d DCA 1979), would have nullified Tafero’s connection with the crimes. Where a witness at a later point in a trial contradicts testimony given at an earlier point in the trial, the earlier testimony is rendered insufficient for jury consideration. 32A, C.J.S., Evidence, § 1043 (1964); Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644 (1933); Taliaferro v. Barnes Hospital, 586 S.W.2d 429 (Mo.App.1979); Griggs v. A. B. Chance Co., 503 S.W.2d 697 (Mo.App.1973); Morgan v. Krey Packing Co., 454 S.W.2d 939 (Mo.App.1970). Cf. United States v. Orrico, 599 F.2d 113 (6th Cir.1979) (prior inconsistent state-' ments, although admitted as substantive evidence, are, standing alone, insufficient to prove any element of the crime charged). It would appear that underlying this rule is the presumptive trustworthiness surrounding immediate recantation. But where recantation comes after the trial, concern about the trustworthiness of the recantation is more likely, and that, combined with the policy that there must be an end to litigation, leads to the rule that recantation of the sole inculpating testimony does not require the issuance of a writ of coram nobis. We observe that this concern about the trustworthiness of post-trial recantation is less justified than once it might have been in light of the passage in 1972 of Section 837.021, Florida Statutes. That statute authorizes prosecution for perjury by proof of two contradictory sworn statements in official proceedings without the necessity of proof that one of the statements is false, see, e. g., Johnson v. State, 343 So.2d 110 (Fla.2d DCA 1977), and the offense,' for limitations purposes, must be deemed to have been committed at the time of the second sworn statement. But trustworthiness aside, it would appear that full recantation of the only testimony upon which the conviction can stand would at least make a petition for writ of cor-am nobis facially sufficient, notwithstanding that thereafter the writ does not issue because the recantation is disbelieved.

      . After the evidentiary hearing on Tafero’s motion for new trial, see n.7, supra, the trial court concluded that neither the third party confessor nor the third party witness was worthy of belief.
      The evidence at the hearing below reveals that in December 1975, one Robert Sheley, who testified at the hearing, wrote to Tafero’s mother advising her that he, not Tafero, committed the 1967 crimes and that he would like to straighten it out. Sheley later gave an affidavit to that effect. Sheley’s account of the 1967 crimes to the extent he could recall was reasonably accurate. He explained that he was called Jessie for Jessie James and that his co-perpetrator was indeed Philip Weinshenker, Tafero’s co-defendant at trial, who was called “Billy” for Billy the Kid [Weinshenker’s convictions were affirmed by us in Weinshenker v. State, 223 So.2d 561 (Fla.3d DCA 1969)]. Sheley could neither describe in any detail the items taken during the robbery nor name the hotel where he stayed on the eve of and during the planning stages of the crime. A polygraph operator testified that Sheley’s confession was truthful. But see Walden v. State, 310 So.2d 426 (Fla.3d DCA 1975) (court may reject third party confession supported by polygraph test results). While Sheley denied ever meeting Tafero and no motive for his coming forward was established, any prosecution of Sheley for these 1967 crimes was barred by the statute of limitations.
      Tafero also presented the testimony of one Billy Leiser, who initially had been arrested with Tafero for the crimes, identified by one of the victims, and later released. Leiser said that after the charges were dropped against him, he contacted the victims to see why they had identified him. He said that the victims told him that they knew Leiser and Tafero were not the assailants, but that Tommy Altamura, a boyfriend of one of the victims, pressured them to identify Leiser and Tafero so that he could shake them down for money. Leiser, who knew of these statements before Tafero’s trial, said he did not come forward sooner because he was afraid of Altamura, who was well known as Tommy the Enforcer. When Alta-mura was killed years later, Leiser came forward.

      .Even under the new trial “probability test” (i. e., the court shall grant a new trial if the new and material evidence, if introduced at trial, would probably have changed the verdict and finding of the court), neither the existence of third party confessions, see, e. g., Walden v. State, 310 So.2d 426 (Fla.3d DCA 1975); Walden v. State, 284 So.2d 440 (Fla.3d DCA 1973); State v. Pitts, 241 So.2d 399 (Fla. 1st DCA 1970); Fast v. State, 221 So.2d 203 (Fla.3d DCA 1969); accord, Baker v. State, 336 So.2d 364 (Fla.1976); State v. Gomez, 363 So.2d 624 (Fla.3d DCA 1978), nor recantation by trial witnesses, see, e. g., Bell v. State, 90 So.2d 704 (Fla.1956); Mollica v. State, supra; Weston v. State, 351 So.2d 75 (Fla.1st DCA 1977), requires that a new trial be granted.

      . It appears, at least theoretically, that new evidence that another person committed the crime in the face of trial testimony identifying the defendant as the perpetrator can never satisfy the conclusiveness test. The test could, however, likely be satisfied by newly discovered evidence that no crime was committed (the decedent said to have been murdered is found alive), that the defendant was under a disability which would have prevented conviction (insanity, non-age, etc.), or that the sole testimony upon which conviction rests has been recanted and the recantation believed (see n.8, supra). To be sure, the cases are uneven. For example, in Ex parte Welles, 53 So.2d 708 (Fla.1951), where the defendant had been identified at trial as the perpetrator of an armed robbery, non-conclusive newly discovered evidence that another person had been shown to have committed the crime and that the defendant had a complete alibi was held sufficient for coram nobis relief. And in State v. Gomez, supra, although applying the coram nobis conclusiveness test to a Rule 3.850 proceeding, the court indicated that confessions by a co-defendant exonerating the defendant would be sufficient. Welles involved a state confession of error, see also Pitts v. State, 247 So.2d 53 (Fla.1971), but surely the fact that the state agrees that a conviction should be set aside because of newly discovered evidence neither prevents the entry of the original judgment nor fosters the rule of finality. Nor can it be said that there is a special class of cases falling outside of the conclusiveness test in which relief can be afforded “in the interests of justice.” If that were so, the “interests of justice” test would completely subsume the conclusiveness test and allow a court to grant coram nobis relief in all cases where there is a strong probability that the verdict would have been otherwise. The use of “interests of justice” in the coram nobis context must be carefully distinguished from its use in the context of an appellate court recognizing fundamental error on appeal, see cases cited at n.14 in Tibbs v. State, 397 So.2d 1120, 1126 (1981), or from its use in Tibbs itself. There, because the Florida Supreme Court reversed its earlier position upon which Tibbs relied in petitioning for certiorari, an action which in view of the court’s later analysis would serve to detriment Tibbs, the Supreme Court, in the “interests of justice,” let stand the lower court grant of a new trial to Tibbs. We consider that Hallman and Smith represent an effort to re-establish the rule of finality, permitting only the rarest exceptions.

      . One of four aggravating factors found by the trial court and approved by the Florida Supreme Court was:
      “The defendant does have a significant history of prior criminal activity involving the use or threat of violence to the person of another. The Defendant was convicted of the crime of Assault with Intent to Commit Rape on December 28th, 1967 in Dade County, Florida and was sentenced to five years in State Prison. The Defendant was convicted of the crime of Crime Against Nature in Case No. 67-5285A in Dade County on December 28th, 1967 and was sentenced to five years imprisonment to be served consecutively with Case No. 67 — 5284A. In Case No. 67-5284A, the Defendant, JESSIE JOSEPH TAFERO, was found guilty of Breaking and Entering An Apartment Dwelling and Assaulting Persons Lawfully Therein, and he was sentenced to five years imprisonment on December 28th, 1967.”
      It is apparent that this “significant history of prior criminal activity,” that is, the 1967 convictions, was critical, if not essential, in affirming Tafero’s death sentences.

      . In respect to this issue, we do not view Hallman as an impediment. To be sure, the Hallman court held, three justices dissenting, that Hallman was not entitled to a death sentence rehearing on his “newly discovered evidence” since had such evidence “been presented during the trial, the trial court would not have been precluded from entering a death sentence.” 371 So.2d at 486. Apart from the serious problem presented by employing a cor-am nobis sufficiency test to the totally different question of whether the death penalty would have been imposed, see Stephens v. Zant, 631 F.2d 397 (5th Cir.1980), cert. granted, - U.S. -, 102 S.Ct. 90, 70 L.Ed.2d 82 (1981) (the existence of sufficient other aggravating factors does not justify affirming a death penalty where it is possible that the jury recommended death because of a different aggravating factor impermissibly considered), we view Hallman’s pronouncement as necessarily confined to the facts of that case. In Hallman, as distinguished from the present case and most others, the “newly discovered evidence” was that the negligence of the hospital was an intervening cause of the victim’s death. Such evidence did not have the slightest bearing on the defendant’s character, prior record, the extent of involvement in the offense, or the manner in which it was committed. A court may very well be justified in rejecting evidence, proffered in mitigation of the death penalty, that the victim was of advanced age and sickly and would have died soon anyway. While Hall-man’s evidence certainly presents a more serious contention, it is still irrelevant to his behavior. Thus, the court in Hallman might have found that the facts suggesting a sentence of death were still so clear and convincing that virtually no reasonable person could differ. See Jacobs v. State, 396 So.2d 713 (Fla.1981); Williams v. State, 386 So.2d 538 (Fla.1980). Finally, we note that while the existence of other aggravating circumstances will sustain the imposition of the death penalty without the need for further fact-finding where “only the manner in which it was considered by the court in its findings of fact” is challenged, Mikenas v. State, 407 So.2d 892 (Fla.1981); see also Smith v. State, 407 So.2d 894 (Fla.1981), where the challenge is to the admission of evidence of aggravating factors, see Elledge v. State, 346 So.2d 998 (Fla.1977), or to the exclusion of evidence of mitigating factors, Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), the existence of other aggravating circumstances does not obviate the need for a further recommendation from the jury.


text:
    Willie Earl LANE, Appellant, v. The STATE of Florida, Appellee.
    No. 80-702.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 1981.
    Bennett H. Brummer, Public Defender and Arthur L. Rothenberg, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Appellant was charged by information in the Circuit Court for Dade County, Florida, with two counts of attempted first degree murder and one count of unlawful possession of a firearm while engaged in a criminal offense. He was found guilty as charged on all counts and sentenced to two consecutive life sentences. Sentence was suspended as to the conviction of possession of a firearm while engaged in a criminal offense.

Appellant urges reversal on the ground that the trial court erred in denying his motions for judgment of acquittal made at the close of the state’s case and at the close of all the evidence because the proof of guilt was insufficient as a matter of law.

We have carefully reviewed the record on appeal, considered the briefs and arguments of counsel, and have concluded that there is sufficient competent evidence in the record to support the findings of guilt and no reversible error has been demonstrated. Therefore the judgments and sentences are affirmed.

Affirmed.


text:
    Robert M. SUSSMAN, Appellant, v. NORMARK CORPORATION, Appellee.
    Nos. 80-1886, 81-339.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 1981.
    Joe Unger, Miami, for appellant.
    Carey, Dwyer, Cole, Selwood & Bernard and Michael C. Spring, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. Clark v. Boeing Co., 395 So.2d 1226 (Fla. 3d DCA 1981); Royal v. Black and Decker Manufacturing Company, 205 So.2d 307 (Fla. 3d DCA 1967).


author: BASKIN, Judge.

text:
    Lucy Sparaga METH, Appellant, v. Murry SPARAGA, et al., Appellees.
    No. 80-2180.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 1981.
    Smith & Mandler and Steven L. Schwarz-berg, Miami Beach, for appellant.
    I. Stewart Huff and Gregg J. Ormond, Coral Gables, for appellees.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

Appellant Lucy Sparaga Meth, personal representative of the estate of David Spara-ga, seeks reversal of the summary judgment entered by the trial court. Appellant had requested the court to impose a constructive trust on funds removed by appel-lee from bank accounts he held jointly with decedent David Sparaga. Appellee removed approximately $62,000 from the joint accounts upon David Sparaga’s death. The accounts were originally in David Sparaga’s name but were changed to joint accounts during the two-week period preceding the death of the 92-year-old hospitalized David Sparaga.

We agree with appellant’s contention that the close relationship between appellee and decedent and the active procurement of the joint accounts by appellee gave rise to a presumption of undue influence. In re Estate of Carpenter, 253 So.2d 697 (Fla.1971); In re Estate of Robertson, 372 So.2d 1138 (Fla.3d DCA 1979), cert. denied, 383 So.2d 1201 (Fla.1980); Lee v. Patton, 359 So.2d 519 (Fla.3d DCA 1978), cert. denied, 367 So.2d 1125 (Fla.1979); Majorana v. Constantine, 318 So.2d 185 (Fla.2d DCA 1975). It was therefore incumbent upon appellee to rebut the presumption of undue influence before relying on the statutory presumption of section 659.291(1), Florida Statutes (1979). Atlantic First National Bank of Daytona Beach v. Cripe, 389 So.2d 224 (Fla. 5th DCA 1980) (extending the principles utilized in establishing the validity of wills to attempts to set aside inter vivos gifts); see Briscoe v. Florida National Bank of Miami, 394 So.2d 492 (Fla.3d DCA 1981).

Because the presumption of undue influence presents issues of fact to be decided by the trier of fact, we reverse the summary judgment. In light of our ruling, we find it unnecessary to discuss the remaining issues on appeal.

Reversed and remanded for further proceedings.

      . Appellee paid decedent’s bills from the funds he had removed.

      . Section 659.291(1), Florida Statutes (1979) was renumbered section 658.56. Ch. 80-260, § 46, Laws of Fla.
      659.291 Deposits and accounts in two or more names; presumption as to vesting on death.—
      (1) Unless otherwise expressly provided in the signature contract card or other similar instrument delivered to and accepted by a bank in connection with the opening or maintenance of an account, including a certificate of deposit, in the names of two or more persons, whether minor or adult, payable to or on the order of one or more of them or the surviving account holder or holders, all such persons and each person depositing funds in any such account shall be presumed to have intended that upon the death of any such person all rights, title, interest and claim in, to, and in respect of, said deposits and account and the additions thereto, and the obligation of the bank created thereby, less all proper setoffs and charges in favor of the bank, shall vest in the surviving account holder or holders.
      Subsection (2) limits subsection (1):
      (2) The presumption herein created may be overcome only by proof of fraud or undue influence or clear and convincing proof of a contrary intent. In the absence of such proof, all rights, title, interest and claims in, to, and in respect of, said deposits and account and the additions thereto, and the obligation of the bank created thereby, less all proper setoffs and charges in favor of the bank against any one or more of such persons, shall, upon the death of any such person, vest in the surviving account holder or holders, notwithstanding the absence of proof of any donative intent or delivery, possession, dominion, control, or acceptance on the part of any person, and notwithstanding the provisions hereof may constitute or cause a vesting or disposition of property or rights or interests therein, testamentary in nature, which, except for the provisions of this section, would or might otherwise be void or voidable.


text:
    Donald MANTICI, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2244.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 1981.
    Roy E. Black and Guy Turner, Miami, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before. BARKDULL, SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

Severe and prejudicial limitations imposed by the court on defense counsel’s efforts to question witnesses during both direct and cross-examination concerning testimony elicited by the state deprived defendant Mantici of a fair trial and mandate reversal of his convictions. Morrell v. State, 335 So.2d 836 (Fla. 1st DCA 1976); Kirkland v. State, 185 So.2d 5 (Fla. 2d DCA 1966); Art. I, § 16, Fla.Const. (1968).

Reversed and remanded for a new trial.


text:
    Robert HARRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-121.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 1981.
    Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Alan T. Lip-son, Asst. Atty. Gen., for appellee.
    Before NESBITT and JORGENSON, JJ. and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Sherrod v. Franza, 396 So.2d 1136 (Fla. 4th DCA 1981); State v. Grooms, 389 So.2d 313 (Fla. 2d DCA 1980); McMullen v. State, 331 So.2d 357 (Fla. 1st DCA 1976).


text:
    The KEYES COMPANY, Appellant, v. ROCKY GRAZIANI, INC., etc., et al., Appellees. Enrique FERNANDEZ, Appellant, v. The KEYES COMPANY, et al., Appellees.
    Nos. 81-124, 81-137.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 1981.
    Manuel Vazquez, Miami, for Enrique Fernandez.
    Aschenbrenner & Eber and Robert C. Eber, Miami, for the Keyes Co.
    Williams, Salomon, Kanner, Damain, Weissler & Brooks and Dale F. Webner, Miami, for Rocky Graziani, Inc.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Both parties appealing from judgments entered on adverse jury verdicts essentially complain that the verdicts represent an incorrect resolution of disputed factual issues. The appellant Keyes Company also argues that they are internally inconsistent with each other. We may not properly consider the first contention, e.g., Helman v. Seaboard Coast Line R. R., 349 So.2d 1187 (Fla.1977); First National Bank of the Upper Keys v. Caribe Equipment Corp., 378 So.2d 19 (Fla.3d DCA 1979), cert. denied, 388 So.2d 1112 (Fla.1980), and the inconsistency point was waived by the failure to assert it at the trial. Robbins v. Graham, 404 So.2d 769 (Fla.4th DCA 1981); Savoca v. Sherry Frontenac Hotel Operating Co., 346 So.2d 1207 (Fla.3d DCA 1977); Wiggs and Maale Construction Co. v. Harris, 348 So.2d 914 (Fla. 1st DCA 1977); Crawford v. DiMicco, 216 So.2d 769 (Fla.4th DCA 1968).

Affirmed.


author: SCHWARTZ, Judge.

text:
    James B. SCOTT, Appellant, v. The STATE of Florida, Appellee.
    No. 81-220.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 1981.

      Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Alan R. Lip-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   SCHWARTZ, Judge.

Scott’s probation was revoked on the ground that he had given false information to Lois Mack, his probation officer, concerning the place of his residence and the identity of his employer. Mack was the sole witness against the appellant at the revocation hearing. Concerning the alleged violations, she testified only to the hearsay statements of a woman at the home address supplied by Scott that he did not live there and a representative of his designated employer that he had never worked there. It is well established, however, that a probation violation may not be based exclusively on hearsay evidence. Clemons v. State, 388 So.2d 639, 640 (Fla.2d DCA 1980) (only evidence of probationer’s terminating employment without permission was “the hearsay testimony of the probation supervisor about what appellant’s employer had said in a telephone conversation;” finding of violation on that ground reversed); Reeves v. State, 366 So.2d 1229 (Fla.2d DCA 1979) (hearsay testimony of probation officer insufficient); Combs v. State, 351 So.2d 1103 (Fla. 4th DCA 1977) (hearsay testimony of police officer insufficient); Wheeler v. State, 344 So.2d 630 (Fla.2d DCA 1977); Hampton v. State, 276 So.2d 497 (Fla.3d DCA 1973). Since that was the case here, the order of revocation and consequent adjudication and sentence are reversed and the appellant is ordered restored to probation.

Reversed.


text:
    RIVERVIEW CONDOMINIUM CORP., etc., Appellant, v. CAMPAGNA CONSTRUCTION CO., etc., et al., Appellees.
    No. 81-313.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 1981.

      Becker, Poliakoff & Strietfeld and Charles Morgenstein, Fort Lauderdale, for appellant.
    Salter, Yeslow & Burnstein and Jerrold Knee, Hollywood, for appellees.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   SCHWARTZ, Judge.

The appellant condominium association sued the developer, Campagna Construction Co; its president, Italo Campagna, individually; and Home Federal Savings & Loan to recover damages resulting from the allegedly improper construction of the roof of the condominium building. The trial court dismissed the amended complaint as against all parties and the association has brought this appeal.

Because valid claims were asserted against Campagna and the construction corporation on a variety of theories, the judgment below is reversed as to these defendants. See, Drexel Properties, Inc. v. Bay Colony Club Condominium, Inc., 406 So.2d 515 (Fla. 4th DCA 1981); Gable v. Silver, 258 So.2d 11 (Fla. 4th DCA 1972), cert. discharged, 264 So.2d 418 (Fla.1972).

The complaint was properly dismissed, however, as to Home Federal. The sole basis of the plaintiff’s action against the lender was as the alleged third-party beneficiary of an agreement between Home and Campagna, in which Campagna — to forestall Home’s mortgage foreclosure action against him — promised Home that he would repair the roof. No third-party claim lies, however, against a party which, like the Federal, is merely the promisee of the contract relied upon. Malone v. SCM Corp., 63 Mich.App. 11, 233 N.W.2d 872, 873 (1975); see 4 Corbin on Contracts § 810 (1951); 11 Fla.Jur.2d Contracts § 153 (1979) (“It is the undertaking on the part of the promisor, as a consideration to the prom-isee, to benefit the third person, that gives rise to a cause of action by the beneficiary against the promisor, resting upon the contract itself.” [e. s.])

Affirmed in part, reversed in part.


author: JORGENSON, Judge.

text:
    INDUSTRIAL NATIONAL MORTGAGE COMPANY, Appellant, v. A. H. BLAKE, Property Appraiser of Dade County, Board of Tax Adjustment of Dade County, Robert Overstreet, Tax Collector of Dade County, Appellees.
    No. 81-348.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 1981.
    Williams, Salomon, Kanner, Damian, Weissler & Brooks and Gary S. Brooks, Miami, for appellant.
    Robert A. Ginsburg, County Atty., and Vicki J. Jay, Asst. County Atty., for appel-lees.
    Before DANIEL S. PEARSON and FERGUSON and JORGENSON, JJ.
   JORGENSON, Judge.

Industrial National Mortgage, a Rhode Island corporation, brought an action in circuit court in 1977 contesting the tax assessment on an apartment complex it owned and operated in southern Dade County. The defendants filed a motion for final summary judgment in 1980 alleging Industrial National’s failure to comply with Section 607.354(1), Florida Statutes (1975). The trial court appropriately gave Industrial National ample time to comply with the statutory criteria. Industrial National, in a novel argument, suggests that even though it was doing business within the State in 1977, it was not doing business within the State in 1980 and, therefore, ought not to be barred from maintaining its action. Appellant’s reliance on 1825 Collins Avenue Corporation v. Rudnick, 67 So.2d 424 (Fla.1953), for this legal innovation is wholly misplaced. In that case, the plaintiff corporation made the necessary filings and returns and paid all taxes due the State prior to final hearing on motion for summary judgment. In the case sub judice, Industrial National has never paid its corporate taxes nor filed appropriate reports with the State of Florida.

Section 607.354(1) must be read in pari materia with Section 607.357(6), Florida Statutes (1975). Industrial National could have overcome its litigious disability by the simple expedient of filing the overdue reports and paying the back taxes. Town of Davie v. Hartline, 199 So.2d 280 (Fla.1967); Marinelli v. Weaver, 208 So.2d 489 (Fla. 2d DCA 1968).

Appellant, having failed to do so, the order dismissing the complaint is affirmed.

Affirmed.

      . Section 607.354(1) provides in part:
      No foreign corporation transacting business in this State without authority to do so shall be permitted to maintain any action, suit, or proceeding in any court of this State until such corporation shall have obtained authority to transact business in this State.

      . Section 607.357(6) provides:
      Any corporation failing to file the annual report required by this section shall not be permitted to maintain or defend any action in any court of this state until such report is filed and all taxes due under this chapter are paid, and any corporation failing to file the annual report shall be subject to dissolution or cancellation of its certificate of authority to do business as provided in this chapter.


author: BASKIN, Judge. SCHWARTZ, Judge

text:
    Harry CONN, a/k/a Bruce Harris, Appellant, v. SEAWIND ENTERPRISES, INC., Appellee.
    No. 81-365.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 1981.
    Thomas H. Connors, Miami, for appellant. Marlow, Shofi, Ortmayer, Smith, Connell & Valerius and Joseph Lowe, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

Perceiving no question of fact involving breach of the landlord’s duty to exercise reasonable care to an invitee, we affirm the summary judgment entered by the trial court.

[T]he mere occurrence of an accident does not give rise to an inference of negligence, and is not sufficient for a finding of negligence on the part of anyone. Robinson v. Allstate Insurance Company, 367 So.2d 708 (Fla.3d DCA 1979); Marcano v. Puhalovich, 362 So.2d 439 (Fla. 4th DCA 1978); Lash v. Nolan, 321 So.2d 104 (Fla. 4th DCA 1975); and City Cab of Orlando, Inc. v. Green, 308 So.2d 540 (Fla. 4th DCA 1975).

Cassel v. Price, 396 So.2d 258 (Fla. 1st DCA 1981).

SCHWARTZ, Judge

(dissenting).

I do not believe the defendant carried its burden of showing conclusively that the plaintiff’s slip and fall was not caused or contributed to by the unreasonably slippery condition of its stairway. Holl v. Talcott, 191 So.2d 40 (Fla.1966); 194th Street Hotel Corp. v. Hopf, 383 So.2d 739 (Fla.3d DCA 1980); Majeske v. Palm Beach Kennel Club, 117 So.2d 531 (Fla.2d DCA 1959), cert. denied, 122 So.2d 408 (Fla.1960). I would therefore reverse the summary judgment entered below.


text:
    Jeffrey ANDREWS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-500.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 1981.
    Bierman, Sonnett, Beiley & Shohat and Benedict P. Kuehne, Miami, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

Dismissed. Robinson v. State, 373 So.2d 898 (Fla.1979); Walker v. State, 399 So.2d 374 (Fla.3d DCA 1981).


text:
    Mario L. ROBINSON, Appellant, v. The STATE of Florida, Appellee.
    No. 81-718.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 1981.
    Raymond J. Takiff, Coral Gables, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. State v. Thompson, 390 So.2d 715 (Fla.1980); State v. Buchman, 361 So.2d 692 (Fla.1978).


text:
    S. G., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 81-842.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 1981.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed.

See Ensor v. State, 403 So.2d 349 (Fla.1981).


text:
    Francisco S. ROSARIO, Appellant, v. The STATE of Florida, Appellee.
    No. 81-856.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 1981.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, BASKIN and FERGUSON, JJ.
   SCHWARTZ, Judge.

This is an appeal from a judgment and sentence entered upon the revocation of Rosario’s probation. We affirm on the ground that the fingerprint evidence was sufficient to support the finding that he had committed a subsequent burglary. See D.J.C. v. State, 400 So.2d 830 (Fla.3d DCA 1981); M.R. v. State, 399 So.2d 56 (Fla.3d DCA 1981); Henderson v. State, 304 So.2d 537 (Fla.3d DCA 1974); Dargans v. State, 259 So.2d 782 (Fla.2d DCA 1972).

The trial judge orally announced findings that the defendant had also violated the conditions which required restitution and payment of the costs of supervision. We need not address the appellant’s challenges to these conclusions because there is no showing that he was harmed by them. No formal order of revocation is in the record on appeal, and it is obvious that the defendant’s commission of the substantive crime alone was sufficient to support and in fact was responsible for the conclusions reached below. See Parrish v. State, 402 So.2d 530 (Fla.3d DCA 1981); Scherer v. State, 366 So.2d 840 (Fla.2d DCA 1979); compare, Aaron v. State, 400 So.2d 1033 (Fla.3d DCA 1981); Jess v. State, 384 So.2d 328 (Fla.3d DCA 1980).

Affirmed.

      . Rosario’s prints were found on liquor bottles taken from behind the bar of a burglarized restaurant, an area to which the public had no access.

      . Compare Parrish v. State, 402 So.2d 530 (Fla.3d DCA 1981), and cases cited, in which unsustained grounds were stricken from a written order which was before us. In this case, we do not know what grounds were stated in the order below or, indeed, whether such an order was even ever entered.


text:
    Joseph MATRASCIA and Josephine Matrascia, Appellants, v. Michael GILLETTE, Appellee.
    No. 81-1170.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 1981.
    Marks, Aronovitz & Leinoff and Tod Aro-novitz, Miami, for appellants.
    Barnett & Kress and Robert P. Barnett, Miami, for appellee.
    Before NESBITT and JORGENSON, JJ., and TILLMAN, PEARSON, (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on authority of Appelgate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).


text:
    Stephen W. PURWIN, Appellant, v. STATE of Florida, Appellee.
    No. 78-1991/T4-206.
    District Court of Appeal of Florida, Fifth District.
    Nov. 25, 1981.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief, App. Div., West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

Based upon the opinion and mandate of the Supreme Court in State v. Purwin, 405 So.2d 970 (Fla.1981) we withdraw our previous mandate 385 So.2d 165 and affirm the sentences imposed by the trial court.

IT IS SO ORDERED.

DAUKSCH, C. J., and ORFINGER and FRANK D. UPCHURCH, Jr., JJ., concur.


text:
    In re the Interest of T. J. G., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 80-1324.
    District Court of Appeal of Florida, Fifth District.
    Nov. 25, 1981.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

See Smith v. State, 344 So.2d 905 (Fla. 3d DCA 1977).

AFFIRMED.

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


author: SHARP, Judge.

text:
    STATE of Florida, Appellant, v. Craig Bradley MAYLE, Appellee.
    No. 80-1404.
    District Court of Appeal of Florida, Fifth District.
    Nov. 25, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellant.
    Joseph W. DuRocher, Public Defender, and Joel T. Remland and Thomas E. Doss, III, Asst. Public Defenders, Orlando, for appellee.
   SHARP, Judge.

The State appeals from an order dismissing a charge of second degree arson. Mayle filed a (c)(4) motion alleging the basic facts of the case are undisputed and they do not establish a prima facie case against him. Reaching the merits of the case, we affirm.

Mayle’s (c)(4) motion established that Mayle had an accident while driving his uninsured Dodge van. The van was towed to a garage and left in the adjacent yard. In a fit of anger, Mayle set fire to the van and destroyed it. No damage to any person or other property occurred, nor did Mayle intend to damage anything except his van.

Mayle maintains these undisputed facts do not constitute a prima facie case of arson. The second degree arson statute provides in part:

Any person who willfully and unlawfully, by fire or explosion, damages or causes to be damaged any structure, whether the property of himself or another, under any circumstances not referred in subsection
(1), is guilty of arson in the second degree

§ 806.01(2), Fla.Stat. (1979). A vehicle is expressly included in the statutory definition of “structure.” § 806.01(3), Fla.Stat. (1979). The legislature eliminated the requirement that the burning be done “maliciously,” but the new arson statute requires that the act be done “willfully and unlawfully.” (Emphasis supplied).

The meaning of “unlawfully” has yet to be defined by the Florida courts. However, it must mean something more than the mere burning of one’s own property without any danger or damage to others or the property of others, nor intent to inflict such damage. Such an act is not contrary to any statute or common law of this State. Therefore we agree the trial court properly granted Mayle’s (c)(4) motion.

AFFIRMED.

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

      . See § 806.01(2), Fla.Stat. (1979).

      . Fla.R.Crim.P. 3.190(c)(4).

      . Sua sponte, we ordered an en banc hearing in this case because Mayle’s (c)(4) motion was sworn to by his attorney, rather than a person having personal knowledge of the facts set forth in the motion, and there was a potential conflict with our decision in State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981). However, it did not appear from the record that the State objected before the lower court to the motion’s lack of an oath from one with personal knowledge, or to Mayle’s failure to support the motion with affidavits or depositions made under oath by persons with such personal knowledge. Therefore, we deemed this objection waived and receded from the en banc proceeding to resolve the potential conflict. See State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981); Turner v. State, 388 So.2d 254 (Fla. 1st DCA 1980); State v. Kling, 335 So.2d 614, 615 n.1 (Fla. 2d DCA 1976).

      .There was some indication in the arrest affidavit that another wrecked vehicle near the van was scorched, and the burning van may have jeopardized the garage near which it was parked. However, the State’s demurrer, which alleged there were other “disputed or undisputed” facts but which failed to specify what they were, was not sufficient to counter Mayle’s (c)(4) motion, and the facts set forth in the motion must be accepted by us as true. State v. Kemp, 305 So.2d 833 (Fla. 3d DCA 1974); Fla.R.Crim.P. 3.190(d).

      . Ch. 79-108, § 1, Laws of Fla.

      . Fla.Stat. § 806.01: Fla. Arson Law — The Evolution of the 1979 Amendments, 8 Fla.St.U.L. Rev. 81 (1980).

        .State v. Tomblin, 400 So.2d 1012 (Fla. 5th DCA 1981).


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

text:
    Joseph Donald CLAIR, Appellant, v. STATE of Florida, Appellee.
    No. 81-88.
    District Court of Appeal of Florida, Fifth District.
    Nov. 25, 1981.

      James B. Gibson, Public Defender, and Julianne Piggotte McLarty, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant, Joseph Donald Clair, appeals from an order withholding adjudication of guilt and placing him on one year probation for culpable negligence, five years probation for aggravated assault and one year probation for leaving the scene of an accident.

At the trial, counsel for appellant objected to the admission of testimony regarding an oral statement given by appellant to the witness. The failure of the state to disclose the substance of the statement pursuant to demand for discovery was the basis for the objection. Appellant contends that it was reversible error for the court not to conduct a Richardson inquiry.

Florida Rule of Criminal Procedure 3.220(a)(l)(iii) provides as follows:

(1) After the filing of the indictment or information, within fifteen days after written demand by the defendant, the prosecutor shall disclose to defense counsel and permit him to inspect, copy, test and photograph, the following information and material within the state’s possession or control:
* * * * * *
(iii) Any written or recorded statement and the substance of any oral statements made by the accused and known to the prosecutor, together with the name and address of each witness to the statement.

Violation of a rule of procedure does not call for reversal of a conviction unless the record discloses that non-compliance with the rule resulted in prejudice or harm to the defendant. Richardson v. State, 246 So.2d 771 (Fla.1971). The state has the burden of showing to the trial court that there was no prejudice to the defendant. Cumbie v. State, 345 So.2d 1061 (Fla.1977). The trial court has discretion to determine whether non-compliance resulted in harm or prejudice to the defendant but this discretion can only be exercised after the court has made a full and adequate inquiry into all of the surrounding circumstances. Richardson at 775; Cumbie at 1062. The trial court’s inquiry should ascertain whether the state’s violation was trivial or substantial, inadvertent or willful, and the effect, if any, it had upon the defendant’s ability to prepare for trial. Wilcox v. State, 367 So.2d 1020 (Fla.1979). As stated in Wilcox, the trial court’s obligation is two-fold: first to determine whether the discovery violation prevented the defendant from properly preparing for trial, and if so, what sanction is appropriate. Wilcox at 1023.

The trial court overruled the objection at the time it was made because defense counsel had failed to specifically ask for the statement. Defense counsel made a demand for all items discoverable under rule 3.220(a)(1). This demand included oral statements under subparagraph (iii). Thus, the state was under a duty to disclose the substance of any oral statement along with the names and addresses of any witnesses to the statements. This the state did not do; in fact, the state answered “no” with regard to any oral or written statements made by appellant.

No inquiry as to the effect of the discovery violation was conducted until appellant renewed his motion for mistrial at the close of the case. At that point, however, argument was limited to the question whether oral statements made to witnesses other than police officers or investigators were discoverable. The trial judge erroneously concluded that only statements made to police officers or made as part of the “res gestae” were discoverable, see, McClellan v. State, 359 So.2d 869 (Fla. 1st DCA 1978); Bell v. State, 327 So.2d 869 (Fla. 1st DCA 1976), and hence he did not address any of the concerns outlined in Richardson. In view of the failure to conduct a proper Richardson inquiry into the effect of the discovery violation, the order withholding adjudication of guilt and placing appellant on probation must be reversed and the cause remanded for a new trial. See Cumbie at 1062. See also Smith v. State, 372 So.2d 86 (Fla.1979) (Post-trial evidentiary hearing not sufficient to remedy Richardson breach.)

REVERSED and REMANDED.

ORFINGER and COBB, JJ., concur.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).

      . In addition, without a Richardson inquiry, the trial court is not in a position to make an informed judgment as to appropriate remedies for the state’s violation.

      .Appropriate sanctions under Rule 3.220(j) range from an order to comply, to exclusion of evidence, or the granting of a mistrial.

      . The answer to demand for discovery, however, indicates that the state did acknowledge the existence of “written, recorded and/or oral statements of accused.” In any event, the substance of any oral statement and the names and addresses of any witnesses to the statement were not disclosed as required by rule 3.220(a)(l)(iii).


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

text:
    CENTRAL FLORIDA LEGAL SERVICES, INC., a non-profit Florida Corporation, N. Albert Bacharach, Jr., and Eddie Lee Lester, Petitioners, v. Robert R. PERRY, and E. L. Eastmoore, as Judges of the Circuit Court of Putnam County, Seventh Judicial Circuit, State of Florida, Respondents.
    No. 81-679.
    District Court of Appeal of Florida, Fifth District.
    Nov. 25, 1981.

      Judith Benninger Brown, Palatka, and Judith E. Koons, Cocoa, for petitioners.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for respondents.
   FRANK D. UPCHURCH, Jr., Judge.

Petitioners, Central Florida Legal Services, Inc., N. Albert Bacharach, Jr., and Eddie Lee Lester, seek a writ of mandamus or, in the alternative, a writ of certiorari to require Robert R. Perry and E. L. East-moore, as judges of the Circuit Court of Putnam County, to vacate an order appointing Bacharach, an attorney employed by Central Florida Legal Services, to serve as counsel for Lester in a criminal proceeding.

We shall treat the petition as one for certiorari. In Colonial Penn Ins. Co. v. Blair, 380 So.2d 1305 (Fla. 5th DCA 1980), we enunciated the three prerequisites to common law certiorari:

(1) the order sought to be reviewed does not conform to the essential requirements of law;
(2) material injury will result from the order; and
(3) remedy by appeal is inadequate.

In this instance, we find these requirements have been met and grant certiorari.

On April 30, 1981, the Public Defender certified a conflict of interest between Lester and another defendant and requested substitution of court appointed counsel. On May 13, 1981, Judge Eastmoore appointed Bacharach to represent Lester. On May 20, 1981, Bacharach filed an ex parte motion to set aside his appointment alleging that federal law prohibited the appointment of legal services attorneys to criminal cases and that he was not competent to represent clients in criminal matters. In the absence of Judge Eastmoore, Judge Perry denied the motion. Petitioners then filed their petition for writ of certiorari.

The Legal Services Corporation Act was adopted by Congress to provide equal access to the system -of justice for individuals who seek redress of grievances and who would otherwise be unable to afford adequate legal counsel. See 42 U.S.C. § 2996(1) and (2). The purpose was to provide financial support for legal assistance in noncriminal proceedings or matters to persons financially unable to afford legal assistance. 42 U.S.C. § 2996b(a). 42 U.S.C. § 2996f(b) specifically provides that no funds made available by the Corporation may be used to provide legal assistance with respect to any criminal proceeding, except to provide assistance to a person charged with a misdemeanor or lesser offense or its equivalent in an Indian tribal court.

Regulations enacted pursuant to 42 U.S.C. § 2996g(e), which govern the activities of legal service organizations funded under the act also limit their activities to civil matters. See 45 C.F.R. § 1613.1 and § 1613.3. The only exception is found in 45 C.F.R. § 1613.1 which provides as follows:

Legal assistance may be provided with respect to a criminal proceeding:
(a) Pursuant to a court appointment made under a statute or a court rule or practice of equal applicability to all attorneys in the jurisdiction, if authorized by the recipient after a determination that it is consistent with the recipient’s primary responsibility to provide legal assistance to eligible clients in civil matters; or
(b) When professional responsibility requires representation in a criminal proceeding arising out of a transaction with respect to which the client is being, or has been, represented by recipient.

The present case involves the situation described in § 1613.1(a). Here, Bacharach was appointed to represent Lester, an indigent criminal defendant. Even assuming arguendo that the court appointment was made pursuant to statute, court rule or practice of equal applicability to all attorneys in the jurisdiction, legal assistance may be provided only after the recipient, here Central Florida Legal Services, has determined that such representation is consistent with the recipient’s primary responsibility to provide legal assistance to clients in civil matters. Central Florida Legal Services has determined that representation of indigent criminal defendants is inconsistent with its primary responsibility to provide legal assistance in civil matters. In view of this determination, the order of the court below appointing Bacharach counsel for Lester in a criminal proceeding directly contravenes federal law and regulations concerning legal services.

The respondents, however, claim that the prohibition against representation of indigent defendants in criminal matters unless authorized by the director conflicts with the Integration Rule of the Florida Bar and the Code of Professional Responsibility. Respondents argue that the courts of the State of Florida have exclusive jurisdiction over the admission of attorneys and the regulation of the practice of law in state courts and hence, any federal law prohibiting legal services attorneys from representing criminal defendants is a violation of the Tenth Amendment.

In Sperry v. Florida, 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963), the Florida Bar instituted proceedings to enjoin a nonlawyer registered to practice before the United States Patent Office from preparing and prosecuting patent applications in Florida. Notwithstanding that such activity constituted the practice of law in Florida, the Supreme Court held that Florida could not enjoin the nonlawyer in view of the federal statute and patent office regulations authorizing practice before the patent office by nonlawyers.

In so holding, the court recognized that Florida had a substantial, though not exclusive, interest in regulating the practice of law within the state and that, in the absence of federal legislation, it could validly prohibit nonlawyers from engaging in this form of patent practice. However, “the law of the state, though enacted in the exercise of powers not controverted, must yield,” when incompatible with federal legislation. 83 S.Ct. at 1325, quoting from Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 6 L.Ed. 23 (1824).

The court also addressed the state’s argument that the patent regulations violated the Tenth Amendment. The court noted the source of Congress’s power to grant patent rights and to promulgate regulations thereunder. It concluded that as Congress had acted within the scope of the powers delegated to it by the Constitution, it had not exceeded the limits of the Tenth Amendment despite the concurrent effects of the legislation upon a matter otherwise within the control of the states. The court further noted that:

The authority of Congress is no less when the state power which it displaces would otherwise have been exercised by the state judiciary rather than by the state legislature, (emphasis added)

While respondents have claimed that the Legal Services Corporation Act and the regulations promulgated thereunder violate the Tenth Amendment, they have failed to allege that Congress lacks or has exceeded its authority in establishing a legal services program. The establishment of a legal services program appears to be a valid exercise of the power of the federal government to provide for the general welfare pursuant to Article I, section 8, of the United States Constitution. As the Supreme Court noted in Sperry, if Congress acts within the scope of the' powers delegated to the United States by the Constitution, it has not exceeded the limits of the Tenth Amendment despite the effects of its legislation upon a matter otherwise within the control of the state. 83 S.Ct. at 1335.

We are aware that Sperry involved the practice of law only before federal agencies and that the instant case involves the practice of law in the state courts. However, the principle recognized in Sperry, that the state maintains control over the practice of law within its borders except to the limited extent necessary for the accomplishment of federal objectives, is equally applicable here. The lower court’s order of appointment interferes with the federal objective of providing legal assistance in civil matters to those who could not otherwise afford such services.

However, we also recognize that the Florida Bar was created by and exists under the authority of the Florida Supreme Court and that the supreme court has the inherent power and duty to prescribe the standards of conduct for lawyers. Fla.Bar Integr. Rule, Preamble (a) and (d). In furtherance of these principles, the supreme court has promulgated the Code of Professional Responsibility. Canon 2 of the Code specifically provides that “a lawyer should assist the legal profession in fulfilling its duty to make legal counsel available.”

In addition, several Ethical Considerations address the attorney’s duty to make legal services available to those who cannot afford such services. Ethical Consideration 2-25 states that the basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer and that every lawyer, regardless of professional prominence or workload, should find time to participate in serving the disadvantaged. Ethical Consideration 2-26 provides that in furtherance of the objective to make legal services fully available, a lawyer should not lightly decline proffered employment. Ethical Consideration 2-29 states that when a lawyer is appointed by a court or requested by a bar association to undertake representation of a person unable to obtain counsel, he should not seek to be excused from undertaking the representation except for compelling reasons.

The lack of cases challenging the court’s assignment of cases to individual attorneys indicates that members of the Florida Bar have shouldered the obligation to provide legal services to those who cannot pay. As we have construed them, the federal regulations involved here relieve Bacharach, a member in good standing of the Florida Bar, of his duty to provide legal services and to accept court-appointed representation. In view of the conflicting interests of the state and federal governments, we certify the following question pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(B)(i) and (ii):

WHETHER A FLORIDA COURT CAN APPOINT AN ATTORNEY EMPLOYED BY A LEGAL SERVICES CORPORATION ESTABLISHED PURSUANT TO THE LEGAL SERVICES CORPORATION ACT AS COUNSEL FOR AN INDIGENT CRIMINAL DEFENDANT WHERE THE AUTHORIZATION REQUIRED BY 45 C.F.R. § 1613.1 HAS NOT BEEN SECURED?

SHARP, J., concurs.

ORFINGER, J., concurs specially with opinion.

ORFINGER, Judge,

concurring specially:

I concur with the result reached by the majority, but I disagree with the reasoning by which the result was reached.

Petitioner, a licensed Florida attorney, employed by Central Florida Legal Services, Inc., and practicing in Putman County, was appointed by the court to represent an indigent defendant charged with the crimes of burglary and grand theft. Petitioner’s motion asking to be relieved of the assignment was based on two grounds: (1) that federal law prohibited the appointment of Legal Services’ attorneys, and (2) that he was not competent to represent defendants in criminal matters. The motion was apparently denied without a hearing to determine if the allegation of incompetency in criminal matters was true.

While I can agree that an indigent defendant charged with a crime has the right to the appointment of an attorney who can provide him with reasonably effective representation, it is quite another matter to say that an attorney appointed by the court to represent such an indigent defendant has a right to decline the appointment or may seek appellate relief to prevent the appointment merely because of policies established by that attorney’s employer.

The federal regulations do rtot prohibit the appointment, nor do I believe that Congress ever intended to regulate the practice of attorneys in the State courts. The ease of Sperry v. State of Florida, 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963), does not support any such notion. Sperry merely says that congress has the right to permit non-attorneys to practice before federal agencies. At the same time, the Supreme Court said that:

“Moreover, since patent, practitioners are authorized to practice only before the Patent Office, the State maintains control over the practice of law within its borders except to the limited extent necessary for the accomplishment of the federal objectives.”

83 S.Ct. at 1335. The limited extent necessary in that ease was the ability of the patent attorney to maintain his office and perform his services in Florida, although not a member of The Florida Bar. The Supreme Court never said that this non-attorney could practice law in the Florida courts or that Congress had the right to control the practice of law in the Florida courts.

Attorneys employed by Legal Services corporations practice before the courts of this state as do other practitioners. They are hired to appear in court. They subscribe to the same oath of admission, belong to the same Bar, and are subject to the same Code of Professional Responsibility as are other lawyers. Their obligations and responsibilities, together with their privileges, are those of other members of the practicing bar. There is no allegation here, nor any attempt to show that Bacharach was singled out because of any improper purpose or motive, but on the contrary, the record shows that he had publicly announced a willingness to participate in the representation of indigent defendants charged with crime in an appointment process applicable to other lawyers. I would deny relief on that ground.

The allegation of inexperience and incompetence in the area of criminal law raises a different issue. While some members of the public (and some lawyers) may believe that the license to practice law qualifies a lawyer to handle any type of case, as a practical matter we know that is simply not so. We gain knowledge not only by what has been taught in school, but (probably to a much greater degree) by practical experience. Even the most experienced lawyer in a given area of the law is not necessarily equipped to handle a matter in other areas of the law in which he has no experience at all. How, then, can a lawyer who has not practiced very long and who states under oath that he has had absolutely no experience at all in handling criminal matters and that he cannot render effective assistance, be expected to learn enough criminal procedure and substantive criminal law in the short time between appointment and trial to be able to provide “reasonably effective assistance” to the defendant.

Trial courts, and appellate courts are daily faced with complaints of those convicted of crimes that they did not have effective assistance of counsel. The current test in cases seeking collateral relief on that ground is that expressed by Meeks v. State, 382 So.2d 673 (Fla.1980):

The appropriate test to be applied in determining whether defendant was afforded effective assistance of counsel is . . . whether counsel was reasonably likely to render and did render reasonably effective counsel based on the totality of the circumstances. (Emphasis supplied).

Id. at 675. When the court appoints a lawyer who asserts under oath that he cannot render effective assistance because of inexperience and incompetence in the area of criminal law, it seems to me that the court has boosted the defendant over the first rung of the ladder; i. e., the defendant has a built-in argument that his appointed attorney was not “reasonably likely to render” reasonably effective counsel. It also seems to me that the road is thus paved for the successful assertion that the attorney did not render the proper quality of representation.

The assertion by the State that a good lawyer can learn the rules and the law between appointment and the time of trial may be correct in many instances. However, I doubt that any person asserting that position would want his life or liberty to depend on counsel who says under oath that his training is insufficient and that he cannot effectively represent the defendant. I agree with the majority that the lawyers of Florida have admirably shouldered their responsibility to provide legal assistance to the poor. There are many qualified attorneys ready to assume the obligations and responsibilities cast upon them by the need to provide counsel to indigents, despite the often unrealistic compensation provided by law, so it hardly helps the system to appoint one admittedly unqualified. I would require the trial court to make a factual determination of the attorney’s qualifications, but would not grant relief on the other ground asserted.

      . The order appointing Bacharach also contravenes federal law and regulations concerning the outside practice of law. The general policy of the Legal Services Corporation is that no attorney shall engage in any outside practice of law if the director of the recipient has determined that such practice is inconsistent with the attorney’s full time responsibilities. 42 U.S.C. § 2996f(a)(4); 45 C.F.R. § 1604.3. As the director of Central Florida Legal Services has indicated that representation of indigent criminal defendants is inconsistent with the attorney’s full-time responsibility, the fact that Bacharach will be later compensated for his services pursuant to section 27.53, Florida Statutes (1979), does not validate the prohibited act.

      . “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

      . In In Interest of D. B., 385 So.2d 83 (Fla.1980), the supreme court recognized the historical concept that one who is allowed to practice law accepts a professional obligation to defend the poor. See also United States v. Dillon, 346 F.2d 633 (9th Cir. 1965), cert. denied, 382 U.S. 978, 86 S.Ct. 550, 15 L.Ed.2d 469 (1966).

      . In pertinent part, his sworn motion said:
      As an attorney I have had no experience with either the substantive or procedural aspects of criminal law, and I am therefore not presently competent to represent the Defendant. As a third (3rd) year law student I interned with a Legal Services’ program which did not provide legal assistance in criminal matters. Subsequent to my graduation from law school in January of 1976 I have been continuously employed by Legal Services’ programs, none of which have provided criminal representation. To date I have never represented anyone in a criminal matter nor have I assisted any other attorney in their preparation or trial of a criminal matter.


author: ORFINGER, Judge.

text:
    Robert L. BELLCASE, Appellant, v. STATE of Florida, Appellee.
    No. 81-807.
    District Court of Appeal of Florida, Fifth District.
    Nov. 25, 1981.

      Robert L. Bellcase, pro se.
    No appearance for appellee.
   ORFINGER, Judge.

Appellant contends that the trial court erred in denying his motion for post-conviction relief, because appellant was not “a prisoner in custody” as required by Florida Rules of Criminal Procedure 3.850. The record before us makes it appear that after conviction, appellant was placed on probation for five years upon condition that he serve eleven months and thirty days in jail, and that he is no longer incarcerated.

The language of the rule is specific and clear. Only a “prisoner in custody under sentence” may apply for relief under this rule. Petitioner is not in “custody” nor has he been “sentenced,” thus he has no standing under this rule. Weir v. State, 319 So.2d 80 (Fla.2d DCA 1975).

The judgment is AFFIRMED.

COBB and COWART, JJ., concur.

      . Florida Rule of Criminal Procedure 3.850: A prisoner in custody under sentence of a court established by the laws of Florida . .. may move the court which entered the judgment or imposed the sentence to vacate, set aside or correct the judgment or sentence.

      . Under Florida Rule of Criminal Procedure 3.790, imposition of sentence is not made upon a defendant who is to be placed on probation. Neither does incarceration as a condition of probation constitute a “sentence.” Villery v. The Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1980).