author: PER CURIAM.

text:
    Jessie Lamar HALL, Appellant, v. STATE of Florida, Appellee.
    Nos. 49566, 49567 and 51777.
    Supreme Court of Florida.
    Order For Clarification Sept. 21, 1978.
    Per Curiam Dec. 20, 1979.
    Rehearing Denied March 28, 1980.

      Allen P. Allweiss, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski and Charles W. Musgrove, Asst. Attys. Gen., Tallahassee, for appellee.
   ORDER FOR CLARIFICATION

This cause is before us on direct appeals from two judgments of guilty of murder in the first degree, a judgment of guilty for involuntary sexual battery, and sentences of death and life imprisonment, respectively, imposed upon the judgments. In reviewing the findings of fact supporting the death sentences, it appears that the trial judge considered all of the mitigating and aggravating circumstances enumerated in Section 921.141, Florida Statutes (1975). However, in light of the trial judge’s following statement:

Not only does the Court find aggravating circumstances in that the capital felonies were committed while the defendant was engaged, or was an accomplice, in the commission of a rape, but further finds that the capital felonies were especially heinous, atrocious and cruel, and finds that there are insufficient mitigating circumstances as enumerated in Section 921.141, Florida Statutes, to outweigh the aforesaid aggravating circumstances. ...

a more detailed statement of findings of fact delineating the aggravating and mitigating circumstances found to exist is required. This additional information is necessary to enable this Court to properly review the death sentence in accordance with our pronouncement in Tedder v. State, 322 So.2d 908, 910 (Fla.1975), that:

In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ. ...

Accordingly, the trial court is directed to submit an amended, more explicit, written findings of fact to this Court within twenty (20) days from the date of this order. In that the record on appeal in this cause will be supplemented by such amended written findings of fact, appellant is hereby granted leave to file a supplemental brief within twenty (20) days from the date the amended findings of fact are filed. In the event a supplemental brief is filed by appellant, ap-pellee is hereby allowed ten (10) days from the date such supplemental brief is filed within which to file a brief in response thereto. Any such brief as may be filed shall be limited to the matters or issues presented by the amended findings of fact.

It is so ordered.

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

OPINION ON THE MERITS

PER CURIAM.

This is a direct appeal from two judgments of the Circuit Court for Orange County, Florida, of guilty of murder in the first degree and sentences of death, following jury recommendations of life imprisonment. Appellant was also adjudged guilty of involuntary sexual battery and sentenced to life imprisonment for that offense. Our jurisdiction is predicated upon article V, section 3(b)(1), Florida Constitution.

While walking along Dunedin Beach on August 27, 1975, Thomas I. Mills discovered the bodies of David Sawyer and Susan Rhoutt. Both victims had been shot three times in the head. Mills contacted police officers who discovered expended .25 caliber WW casings near the bodies. Lab tests determined that the bullets had been fired from a semiautomatic weapon. An autopsy revealed that Susan Rhoutt had engaged in sexual intercourse up to twelve hours prior to her death. In addition, a high acid phosphatase level in her anal tract was found along with type A, B and 0 blood groupings which evidenced sexual activity. The pubic area of both victims was combed, and hairs were recovered from Susan Rhoutt’s blouse.

On September 5, 1975, Deputy Warden contacted appellant at a local bar and requested that he proceed to the Dunedin Beach police station for questioning. Pursuant to a radio message from Warden, Sgt. McKenna asked appellant to wait in his office until Warden’s arrival, which occurred fifteen to twenty-five minutes later. The officer offered appellant a cup of coffee but did not question him, warn him of his Miranda rights, or place him under arrest. In response to appellant’s question as to why he had been called, Sgt. McKenna stated that “It would be best he waited for Warden and Warden would explain it to him.” Appellant then stated with respect to Darrell Hoy, appellant’s companion the night of the murder, “Did he say I did that to those kids? ... If Darrell said that I did that to those kids,' he’s crazy. You would'have to be crazy to do a thing like that.”

Subsequent to Deputy Warden’s arrival, appellant was advised of his Miranda rights and voluntarily spoke to the officers. Appellant also executed a written waiver permitting éxtraction of head and pubic hair samples. Police officers informed appellant that these samples were sought for comparison with samples obtained from .the murder victims. Hair samples were also obtained from Darrell Hoy. A consent search of appellant’s house was conducted, but no evidence was discovered. The hair analysis revealed that a pubic hair found on Susan Rhoutt matched that of Darrell Hoy and hairs recovered from Susan’s blouse matched those of the appellant.

On September 7, 1975, appellant was arrested for first degree murder. On September 26, 1975, appellant was indicted on two counts of first degree murder and for involuntary sexual battery. During appellant’s incarceration pending trial, a search warrant was obtained and appellant’s residence was again searched. The second search revealed several .25 caliber WW shells in a can.

At trial, a prosecution witness testified that appellant argued with David Sawyer over Susan Rhoutt the night before the murders. Appellant and' Hoy visited a friend’s house the evening of the murder and, as they left the residence, appellant suggested to Hoy that they go to the beach. Another witness for the state testified that (1) approximately fifteen months prior to the murders, he observed appellant carrying a .25 caliber automatic in his boot and using WW ammunition similar to the death bullets; (2) he saw similar bullets in appellant’s home and the can in which they had been stored within one month prior to the murders; and (3) a week before the crimes he observed a gun on the floor of Hoy’s car which Hoy kicked under appellant’s seat.

Darrell Hoy, called as a court’s witness, stated that he and appellant did not go to the beach on the evening of the murders. The state sought to impeach Hoy with contradictory statements given while in jail which implicated appellant in the killings. Hoy acknowledged the statements but stated that they were wrong. Thereafter, Hoy invoked the fifth amendment, thereby precluding cross-examination by defense counsel. Hoy was then dismissed from the witness stand.

Appellant testified in his behalf, stating that (1) he had not argued with David Sawyer; (2) he was not acquainted with Susan Rhoutt; (3) he neither suggested going to the beach nor arranged such an excursion on the evening of the murders; and (4) he neither possessed nor used a .25 caliber weapon or ammunition.

The jury returned verdicts of guilty on the two counts of first degree murder and on the count of involuntary sexual battery, and recommended life imprisonment. The trial judge, however, imposed the penalty of death as to each count of murder and life imprisonment with respect to the conviction for involuntary sexual battery.

The trial judge’s findings of fact did not delineate in detail each aggravating and mitigating circumstance which he found to exist. Consequently, prior to hearing oral argument in this cause, this Court entered an order of clarification directing the trial judge to submit a more detailed statement of findings of fact to enable us to properly review the sentences of death in accordance with our pronouncements in Tedder v. State, 322 So.2d 908 (Fla.1975). We have received a response to this order from the trial judge and find it satisfactory.

Appellant argues initially that the attempted impeachment of Darrell Hoy with prior statements implicating appellant in the slayings, followed by Hoy’s invocation of his fifth amendment privilege, denied appellant his right to confrontation as recognized in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). For the following reasons we agree with appellant’s contention and reverse his convictions.

At the time of appellant’s trial his accomplice, Darrell Hoy, had been convicted of charges stemming from his participation in the rape and killings and was awaiting sen-fencing. Hoy was placed on the witness stand at appellant’s trial as the court’s witness. In response to questioning by the prosecutor, Hoy denied that he and appellant had gone to Dunedin Beach on the night of the slayings. The prosecutor then sought to impeach Hoy with prior inconsistent statements made to a detective which implicated appellant in the slayings:

Q Let me read to you a question and an answer that you made.
“Question. You went to the beach. About what time did you go there?”
This again was your attorney asking you the question.
“Answer. I don’t know because I don’t have a watch.”
Do you remember making that statement?
A I don’t know, sir.
Q “Question. Okay. How long did you stay at the beach?”
And your answer, “Maybe five, ten minutes.”
A I don’t know what you’re talking about because I never went to the beach, sir.
THE COURT: The question that Mr. Fugate is asking you, Mr. Hoy, is whether or not you did or did not have those questions asked of you and whether you did or did not give those answers.
THE WITNESS: Yes, the questions were asked.
THE COURT: And did you give those answers?
THE WITNESS: Yes, sir. I was mistaken on those answers, though.
THE COURT: All right.
BY MR. FUGATE:
Q You say that you were mistaken in giving those answers?
A Yes, sir, I was in jail over there for several months, and I wasn’t thinking too good then.
Q Let me ask you then have you ever told anyone — and think carefully about this, Darrel. Have you ever told anyone that you were present when Jesse Lamar Hall shot David Sawyer?
A No, sir, I don’t know about that, sir, because I—
MR. FOREMAN: (Interposing) Objection.
THE COURT: The objection is sustained.

TR volume V, 815-16.

The attempted impeachment by the prosecutor continued:

BY MR. FUGATE:
Q Would you look at this again? Is this your signature, Darrel?
A Yes, sir, it is.
Q Let me, if I might, stand here, Your Honor.
On page 4 there’s a question. Let me ask you if you remember this question by Detective Bender:
“Okay. Were you holding onto Susan [Rhoutt] loosely, medium or tight?”
And you gave the answer, “I was holding on her tight until she got away. He’d shoot me.”
And then you came along and — is this your handwriting here, “Jesse said if I let Susan get away he would shoot me.”
MR. FOREMAN: Objection, Your Honor.
THE COURT: Sustained.
BY MR. FUGATE:
Q Do you remember making that statement to that question, “Were you holding onto Susan loosely, medium or tight?”
A I don’t know what you’re talking about, sir.
Q Let me ask you, if I may — do you see this “DEH” here?
A Yes, I see it.
MR. FOREMAN: Objection. We have a motion for the Court at this time.
THE COURT: I’ll hear it later. Go ahead.
BY MR. FUGATE:
Q Do you see this handwriting here without saying what the handwriting is?
A I don’t wish to answer that question at the moment.
BY MR. FUGATE:
Q Darrel, you’ve indicated that with reference to what’s been marked as State’s Exhibit for Identification No. 42, you recognized the statement and you recognized your signature bn it; is that correct?
A I take the Fifth Amendment on that.

I don’t have to answer that question. TR volume V, 825-27 (emphasis supplied). At that point Hoy was dismissed from the witness stand without an opportunity for questioning by defense counsel. The jury was instructed that the prior statements could be used solely for impeachment of Hoy, not as evidence of appellant’s guilt.

In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, the United States Supreme Court reversed the conviction of an individual when the confession of his codefendant which implicated them both was admitted in their joint trial. Because the confession was admitted without the codefendant taking the stand, the defendant was denied his right to confront witnesses against him.

The fact that the' defendants here were tried separately rather than jointly does not vitiate the constitutional infirmity. The crux of a Bruton violation is the introduction of statements which incriminate an accused without affording him an opportunity to cross-examine the declarant. It is immaterial whether denial of this opportunity occurs because the statements are introduced through the testimony of a third party or because the speaker takes the stand and refuses to answer questions concerning the statements. This proposition follows from an examination of the Supreme Court’s decision in Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), the facts of which are similar to those of the case at bar. The Douglas decision was referred to at length by the Bruton majority:

[T]wo persons, Loyd and Douglas, accused of assault with intent to murder, were tried separately. Loyd was tried first and found guilty. At Douglas’ trial the State called Loyd as a witness against him. An appeal was pending from Loyd’s conviction and Loyd invoked the privilege against self-incrimination and refused to answer any questions. The prosecution was permitted to treat Loyd as a hostile witness. Under the guise of refreshing Loyd’s recollection the prosecutor questioned Loyd by asking him to confirm or deny statements read by the prosecutor from a document purported to be Loyd’s confession. These statements inculpated Douglas in the crime. We held that Douglas’ inability to cross-examine Loyd denied Douglas “the right of cross-examination secured by ■ the Confrontation Clause.” 380 U.S., at 419, 85 S.Ct. 1074 at 1077. We noted that “effective confrontation of Loyd was possible only if Loyd affirmed the statement as his.- However, Loyd did not do so, but relied on his privilege to refuse to answer.” Id., at 420, 85 S.Ct. 1074 at 1077. . In' Douglas we said, “Although the Solicitor’s reading of Loyd’s alleged statement, and Loyd’s refusals to answer, were not technically testimony, the Solicitor’s reading may well have been the equivalent in the jury’s mind of testimony that Loyd in fact made the statement; and Loyd’s reliance upon the privilege created a situation in which the jury might improperly infer both that the statement had been made and that it was true.”

391 U.S. at 126-27, 88 S.Ct. at 1623.

Appellee suggests that Bruton and Douglas are distinguishable because in this case Hoy denied having made the statements which implicated appellant. Rather, posits appellee, this case is controlled by Baker v. State, 217 So.2d 880 (Fla. 1st DCA 1969), where the District Court of Appeal, First District, opined:

The codefendant, by taking the witness stand and denying ever having made the oral confession testified to by the police officers [which implicated the defendant in the crime], removed any valid objection by appellant to the admission of the confession, and absolved the court from any error in its ruling thereon.

Id. at 885.

On review of Baker’s conviction by federal habeas corpus the Fifth Circuit Court of Appeals agreed with the conclusion of the district court and noted “[T]he most skillful cross-examiner could not have produced a better result for Baker than Damron’s testimony that his entire confession had never been made and that neither he nor Baker robbed Infinger.” An examination of the remainder of the fifth circuit’s opinion, however, evidences that its conclusion was not predicated upon the codefendant’s denial of his prior statements. Rather, no violation of the Bruton rule obtained because the codefendant was subject to cross-examination by the defendant:

As the Florida Court of Appeals held, Baker was not denied the right to be . confronted with any witness against him. In James v. United States, 416 F.2d 467 (5th Cir. 1969) this court upheld the conviction of a non-confessing joint defendant over a Bruton objection in a joint trial where the confessing defendant took the stand and was subject to cross-examination. . . . Baker’s right under the Sixth Amendment to be confronted with the witnesses against him was in no way denied in the case at bar because Damron took the stand and made himself subject to cross-examination by Baker.

Baker v. Wainwright, 422 F.2d 145, 147-48 (5th Cir. 1970).

The policy reason for this holding is apparent. The codefendant’s bare denial of prior statements which implicate both him and the defendant could be interpreted as an attempt by that witness to “save himself.” Consequently, the jury might believe that the prior statements were in fact true. If the defendant has an opportunity to cross-examine the codefendant he may be able to develop facts which will convince the trier of fact that the prior statements were false. Where, as here, the codefendant’s invocation of his fifth amendment privilege precludes such questioning by the defendant, the principles of Bruton and Douglas have been violated. Accord, Hill v. State, 330 So.2d 487 (Fla. 4th DCA 1976).

Appellee argues that no reversible error occurred because the jury was instructed that the prior statements could only be used to impeach Hoy, not as evidence of appellant’s guilt. Both Douglas and Bruton rejected such a suggestion, relying in part upon the dissent of Mr. Justice Frankfurter in Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957):

That dissent challenged the basic premise of Delli Paoli that a properly instructed jury would ignore the confessor’s inculpation of the nonconfessor in determining the latter’s guilt. “The fact of the matter is that too often such admonition against misuse is intrinsically ineffective in that the effect of such a nonad-missible declaration cannot be wiped from the brains of the jurors. The admonition therefore becomes a futile collocation of words and fails of its purpose as a legal protection to defendants against whom such a declaration should not tell.” 352 U.S., at 247, 77 S.Ct. 294, at 302. The dissent went on to say, . . . “The Government should not have the windfall of having the jury be influenced by evidence against a defendant which, as a matter of law, they should not consider but which they cannot put out of their minds.” Id., at 248, 77 S.Ct. 294, at 303. To the same effect, ... is the statement of Mr. Justice Jackson in his concurring opinion in Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 723, 93 L.Ed. 790: “The naive assumption that prejudicial effects can be overcome by instructions to the jury * * * all practicing lawyers know to be unmitigated fiction. * * * ”

Bruton v. United States, 391 U.S. at 129, 88 S.Ct. at 1624.

Appellant raises a multitude of other issues relating to the validity of his convictions. Most of the issues are relevant solely within the context of the trial proceedings here under review (e. g., the propriety of jury instructions to which defense counsel did not object, cross-examination of appellant as to the specifics of prior convictions where timely objection was not made, etc.) Because it is uncertain whether these issues would recur in a retrial of appellant, should one take place, we will not address these arguments. There are, however, three points relating to the admissibility against appellant of certain evidence which will necessarily be relevant in the event that he is retried: (1) whether the trial judge properly denied appellant’s motion to suppress the .25 caliber ammunition seized from appellant’s residence and his statement made at the Dunedin police station; (2) whether certain head hairs removed from the clothing of Susan Rhoutt which matched the hair samples procured from appellant were relevant to prove appellant’s guilt; and (3) whether hairs found on Susan Rhoutt which matched those of appellant’s alleged accomplice, Darrell Hoy, were relevant to establish appellant’s guilt. To aid in the conduct of any retrial we will address these matters. For the following reasons we conclude that each item of evidence and the statement was properly admitted.

Appellant initially argues that he was not shown to have been in possession of the ammunition seized from his residence. Therefore, this evidence which was similar to the murder bullets was inadmissible against appellant. While appellant shared the dwelling with his wife, it is clear that he need not have exclusive possession of premises in which the incriminating evidence was found in order to be charged with its possession. See Smith v. State, 279 So.2d 27 (Fla.1973); Joiner v. State, 339 So.2d 296 (Fla. 1st DCA 1976); Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967).

Further, appellant maintains that the following statement made at the Dunedin police department is not relevant to prove his guilt of the killings: “Did he [Darrell Hoy] say I did that to those kids? . If Darrell said that I did that to those kids he’s crazy. You would have to be crazy to do a thing like that.” It is argued that it cannot be inferred from this statement that the appellant possessed unique knowledge of the details of the murders. This is so because the deaths were widely publicized for ten days prior to the time appellant made this remark. We reject appellant’s contention because it reaches the weight, not the admissibility, of the evidence. The jury could reasonably conclude that this statement was evidence of guilty knowledge of appellant. Parrish v. State, 90 Fla. 25, 105 So. 130 (1925); Darty v. State, 161 So.2d 864 (Fla.2d DCA 1964), cert. denied, 168 So.2d 147 (Fla.1964). The fact that the jury might properly make a contrary determination does not negate the relevance of this evidence to prove appellant’s guilt. Results of the comparison between appellant’s hair and the hairs removed from the clothing of Susan Rhoutt are likewise relevant and admissible as evidence of the guilt of the accused.

Finally, results of the comparison between the hair of Darrell Hoy and specimens discovered - on the body of Susan Rhoutt are relevant with respect to' the guilt of appellant. Because evidence that Hoy and appellant were together on the night of the murders was introduced at trial, evidence that Hoy’s hair was found in the hair of the victim implicates appellant as well as Hoy.

Due to our reversal of appellant’s conviction, it is unnecessary for us to determine whether the sentence of death imposed comports with our pronouncements in Ted-der v. State, 322 So.2d 908. In the event that appellant is again tried, convicted and sentenced to death, a full review by this Court of the relevant sentence will then be proper.

For the foregoing reasons the judgments and sentences of the Circuit Court for Orange County, Florida, are reversed and this cause is remanded to that tribunal for proceedings not inconsistent with this opinion.

It is so ordered.

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

      . Darrell Hoy was tried separately from appellant. Hoy was convicted of two charges of murder in the first degree, and of involuntary sexual battery and petit larceny for his complicity in the slayings. Following return of the jury’s recommendation of life imprisonment for the charges of murder in the first degree, the trial judge imposed sentences of death as to each charge. On appeal we affirmed the judgments and concluded that the principles of Tedder v. State, 322 So.2d 908 (Fla.1975), had not been violated by imposition of the sentences of death despite the jury’s recommendations to the contrary. Hoy v. State, 353 So.2d 826 (Fla.1977).

      . Baker v. Wainwright, 422 F.2d 145 (5th Cir. 1970).

      . Id. at 148 (footnote omitted).

      . The issue is not whether the codefendant has the right to invoke the privilege against self-incrimination; it is sufficient if he in fact claims it. Hankerson v. State, 347 So.2d 744 (Fla. 4th DCA 1977).

      . In that our reversal is not grounded upon insufficiency of evidence to support the findings of guilt, the double jeopardy clause of the fifth amendment does not preclude a retrial if the state so elects. See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1977).

      . Appellant does not assert that a Miranda violation occurred in connection with the making of this statement.


source: Caselaw Access Project

license: Public Domain

text:
    Joseph Green BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 46925.
    Supreme Court of Florida.
    Jan. 31, 1980.
    Rehearing Denied April 21, 1980.

      J. Michael Shea, Tampa, for appellant.
    Jim Smith, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This is an appeal from a conviction of murder in the first degree and a sentence of death. Jurisdiction vests pursuant to article V, section 3(b)(1), Florida Constitution.

The appellant, Joseph Green Brown, was convicted of rape, robbery, and first-degree murder. The conviction was based primarily on the testimony of Ronald Floyd, who was with the appellant immediately prior to the crime and immediately afterwards. The facts, as revealed by Floyd’s testimony, indicate that on the date of the murder the defendant, Floyd, and a third man known as “Poochie” who has never been located, drove to a clothing shop where the murder . was committed. The appellant and Poochie parked the car across the street from the shop and walked into the shop. Apparently unaware of the reason for the visit to the shop, Floyd was left sitting in the car. After waiting for approximately fifteen minutes, Floyd got out of the car and walked over to the front door of the shop. He then heard a gunshot and immediately opened the door and entered the shop. He saw Poochie standing in the doorway of what appeared to be a storage room in the rear of the shop. When Floyd looked over the counter, he saw the body of the victim on the other side of the storage room door. The three men then raced out of the shop and drove speedily away. While in the car, Poochie turned to the appellant and said, “Man, you didn’t have to do that.” Floyd testified that when appellant first got out of the car to cross the street and enter the clothing store, he had a bulge in his shirt which seemed to be a gun. According to Floyd, all of these events took place in the early afternoon of July 7, 1973.

At approximately 9:30 that evening, the body of the victim was discovered in the storage room of the clothing store. She had been raped and murdered. On the evening of and subsequent to the murder, the defendant and Floyd robbed a couple in a motel and appellant sexually assaulted the female. The following day, the appellant turned himself in to law enforcement officers for the motel robbery.

A verdict of guilty was returned by the jury and an advisory recommendation of a sentence of death was rendered. Appellant was adjudged guilty and sentenced to death on July 3, 1974. On appeal, appellant seeks a new trial on the grounds that: (1) after the trial, Floyd denied that his testimony was true, although he ultimately reaffirmed the truth of his testimony; (2) the prosecuting attorney failed to furnish Floyd’s statements pursuant to rule 3.220(a), Fla.R.Crim.P.; (3) the state failed to inform appellant’s counsel that Floyd’s testimony was given in return for favorable consideration in criminal matters pending against him; (4) the appellant was denied a fair trial by an impartial jury due to the systematic exclusion of prospective jurors who voiced opposition to the death penalty; and (5) the appellant was denied a fair trial by an impartial jury due to the prejudicial effect of admitting testimony of other unrelated offenses.

I

We are not persuaded by appellant’s argument that Floyd’s subsequent recantation of his trial testimony, when coupled with his reaffirmation of that testimony, constitutes grounds for a new trial. After appellant was convicted, appellant’s counsel secured from Floyd an affidavit wherein Floyd stated that his testimony against appellant in this murder trial was false. The affidavit was notarized by the defensecounsel and given by Floyd while he was incarcerated at the Union Correctional Institute. Floyd and appellant’s counsel were the only persons present at the time the affidavit was prepared and signed. While the case was here on appeal, this Court granted appellant’s motion for remand for ' further consideration in light of the Floyd affidavit. At a hearing on appellant’s motion, Floyd admitted signing the affidavit, but reaffirmed his trial testimony and said that statements to the contrary in the affidavit were false. As to some questions, he exercised his right to remain silent. The trial court denied appellant’s motion for a new trial because it was based solely on the Floyd affidavit which had been retracted and denounced by Floyd at the hearing on the motion. We considered a similar challenge in Bell v. State, 90 So.2d 704, 705 (Fla.1956). There we said, citing Henderson v. State, 135 Fla. 548, 185 So. 625, 630 (1939):

A material error or misstatement in the testimony of a witness for the prosecution may constitute ground for a new trial. Where therefore it appears, that, on a new trial, the witness will change his testimony to such an extent as to render probable a different verdict, the new trial will be granted. But recantation by witnesses called on behalf of the prosecution does not necessarily entitle defendant to a new trial. The question whether a new trial shall be granted on this ground depends on all the circumstances of the case, including the testimony of the witnesses submitted on the motion for the new trial. Moreover, recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true. . . .

We agree with the trial court that a witness’s post trial recantation of testimony, followed by a clear retraction of the post trial statements, is not sufficient to overturn a jury verdict and sentence. Under the circumstances here, as in Bell, “the trial judge’s skepticism as to the truth of the matter contained in the affidavit is understandable,” Id. at 705. We find no abuse of discretion in his denying the motion for new trial on this ground.

II

Appellant next charges that the state failed to furnish several of Floyd’s statements to his counsel pursuant to rule 3.220(a), Fla.R.Crim.P. We previously remanded this cause to the circuit court for determination of whether Floyd’s statements were in the possession of the state and not produced for the defense. After an evidentiary hearing on the matter, the trial court determined that all statements made by the witness to which the defense would be entitled were in fact furnished to defense counsel prior to the trial. Since we find, nothing in the record to cast doubt on that determination, we find no merit in this point.

III

Appellant , next argues that he is entitled to a new trial on grounds that the state failed to inform defense counsel that the testimony of the state’s key witness, Floyd, was given in return for favorable consideration in this and other criminal matters pending against Floyd. Floyd testified at trial that the state had given him no promises of favorable consideration in this case or any other case as an inducement for his testimony against appellant. This testimony is consistent with the state’s version of the pre-trial discussion with Floyd. The appellant’s claim is based on statements made in the March, 1975, affidavit of Floyd which indicated that the state had promised favorable treatment in exchange for his testimony against the appellant. Although Floyd retracted part of that statement at an evidentiary hearing on the matter, at that same time he reaffirmed his claim as to promises of favorable treatment. At that same hearing, the state denied that any such promises were made. The appellant’s claim rests solely on the affidavit of Floyd. There is nothing in the record to suggest that the state did in fact make such promises. Although he had an opportunity to do so at the evidentiary hearing on the matter, appellant offered no testimony to substantiate the affidavit. By remaining silent while a witness testifies in a manner wholly consistent with the state’s view of the facts, we do not believe that the prosecution engaged in the “deliberate deception of a court and jurors” which is necessary to reverse a conviction on these grounds. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

IV

Appellant charges that he was denied a fair trial by an impartial jury due to the systematic exclusion of prospective jurors who voiced opposition to the death penalty. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). We disagree. Nine of the ten jurors who were excluded had been excused before the appellant made his objection on this ground. In Paramore v. State, 229 So.2d 855 (Fla.1969), vacated on other grounds, 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 751 (1972), we responded to a similar argument by stating:

If defendant objects to a prospective jur- or being excused he should make his objection before the juror is excused. . . . When these three prospective jurors expressed their convictions against the infliction of the death penalty, appellant’s attorney made no effort to qualify them for service. Perhaps he did not want them for some other reason. It was not the duty of the trial court to take other steps toward attempting to qualify the veniremen, and the Witherspoon ease, supra, should not be construed as imposing this additional duty upon the trial court in the absence of any expression of a desire by defense counsel to keep the prospective jurors. . . . The appellant is in no position to complain in the instant case because no objection was interposed ....

Id. at 858.

The one prospective juror who was excused after timely objection was properly excused for cause in accordance with the Witherspoon standards. During the voir dire examination of that prospective juror, the following colloquy occurred:

A I have been listening all afternoon but sitting up there I just don’t think I could recommend a verdict of death. Capital punishment.
Q (Prosecuting attorney) Well, would this stem from your feeling that you would have about the death penalty?
A Yes. I don’t think I could recommend for anyone to be put to death.
Q Regardless of the circumstances.
A I don’t think so. Life imprisonment yes, but not the death penalty.
Q (Defense attorney) Ma’am, if I may get this just straight, I have tried to pin down exactly what it is that you feel that would hinder you in your decision. Is it the fact that you might have to recommend, should we get to the second portion of this trial, the death penalty?
A Yes, sir.
Q That is what bothers you?
A Yes.
Q Specifically that? And would it hinder you in reaching your decision as to guilt or innocence?
A Well it might if I thought I recommended guilty and he would be put to death, or whoever it was.

We have recently held that a prospective juror may be excused for cause if it is shown that he “would vote against death regardless of the facts presented or the instructions given.” Jackson v. State, 366 So.2d 752, 755 (Fla.1978). We have also upheld the exclusion of a prospective juror who said that he “wouldn’t know” if he could find the defendant guilty where it might result in capital punishment. Williams v. State, 228 So.2d 377, 381 (Fla.1969), vacated on other grounds, 408 U.S. 941, 92 S.Ct. 2864, 33 L.Ed.2d 765 (1972). There, we stated:

As was said in Witherspoon, “The most that can be demanded of a venireman * * * is that he be willing to consider all of the penalties provided by state law * * 391 U.S. at 522, 88 S.Ct. at 1777, n. 21. If, upon questioning, the prospective juror says he doesn’t know whether he can vote for conviction if it might mean the electric chair, then the State cannot determine his willingness to consider all penalties, nor can it determine whether or not the venireman’s attitude toward the death penalty would prevent him from making an impartial decision as to guilt.

Id. at 381 (emphasis in original). In this case, the prospective juror made it clear that her decision as to guilt or innocence might well be affected by her attitude toward the death penalty. We find that the trial court correctly followed the dictates of Witherspoon and properly excused this prospective juror.

Y

Appellant also argues that testimony of unrelated offenses was admitted in violation of the “Williams rule.” Williams v. State, 110 So.2d 654 (Fla.1959). We have reviewed the trial testimony with regard to the motel robbery committed on the same date as this murder and conclude that the offenses are sufficiently related in time and in circumstances as to withstand a Williams rule challenge. The evidence as to the motel robbery was relevant to establish both, the identity of the appellant and to show a common scheme or general pattern of criminality. We reject the appellant’s final argument.

We must finally determine whether the sentence of death is appropriate under the statutory scheme of capital punishment in this state. The trial judge made the following findings:

AS TO AGGRAVATING CIRCUMSTANCES :
1. That the Defendant, JOSEPH GREEN BROWN, murdered EARLENE EVANS BARKSDALE from a premeditated design to effect the death of the said EARLENE EVANS BARKSDALE.
2. That the Defendant, JOSEPH GREEN BROWN, in committing the capital felony, for which he has been convicted, in a public place knowingly through his voluntary and intentional act leading up to and during the course of the commission of the offense created a great risk of serious bodily harm and death to many persons.
3. That at the time the Defendant, JOSEPH GREEN BROWN, committed the capital felony, for which he has been convicted, he was engaged in the commission of the crimes of Robbery and Rape.
4. That the capital felony for which the Defendant, JOSEPH GREEN BROWN, is to be sentenced was committed for pecuniary gain.
5. That the murder of EARLENE EVANS BARKSDALE was especially heinous, atrocious and cruel.
AS TO MITIGATING CIRCUMSTANCES:
1. The Defendant, JOSPEH GREEN BROWN, has a significant history of pri- or criminal activity.
2. That the capital felony for which the Defendant, JOSEPH GREEN BROWN, was convicted was not committed while the Defendant, JOSEPH GREEN BROWN, was under the influence of extreme mental or emotional disturbance.
3. That the victim, EARLENE EVANS BARKSDALE, was not a participant in the Defendant’s conduct nor did the victim, EARLENE EVANS BARKS-DALE, consent to the act.
4. That the Defendant, JOSEPH GREEN BROWN, was not merely an accomplice with relatively minor participation but was rather totally involved in the commission of the capital offense.
5. That the Defendant, JOSEPH GREEN BROWN, did not act under extreme duress during the course of the commission of the offense nor was he, during that period of time under the substantial domination of another person.
6. That at the time of the commission of the offense the Defendant, JOSEPH GREEN BROWN, had the capacity to appreciate the criminality of his conduct and the ability to conform his conduct to the requirements of law.
7. The age of the Defendant, JOSEPH GREEN BROWN, to-wit: age 23 years, thus making him a mature male, has some minor significance and is, therefore, a mitigating circumstance.
THEREFORE, it is the Opinion and Determination of this Court, and the Court so finds that aggravating circumstances do exist, and that these aggravating circumstances far outweigh any circumstances which would mitigate the sentence in this case.
WHEREFORE, the Court finds that the Defendant, JOSEPH GREEN BROWN, by his willful, deliberate, malicious and premeditated act took the life of EARLENE EVANS BARKSDALE without justification or excuse. The Defendant, JOSEPH GREEN BROWN, knew full well the seriousness and the ultimate consequences of his act when he from a premeditated design took the life of EARLENE EVANS BARKSDALE. The Defendant, JOSEPH GREEN BROWN, in an extremely heinous, atrocious and cruel manner shot and killed EARLENE EVANS BARKSDALE after raping the said EARLENE EVANS BARKSDALE. The Court finds that based on all the facts and circumstances presented the Defendant, JOSEPH GREEN BROWN, by the acts and methods employed in the commission of this offense has been and would continue to be a danger and a menace to society and therefore must pay the ultimate penalty, death by electrocution, as provided by the laws of the State of Florida.

The trial court improperly found that the appellant “created a great risk of serious bodily harm and death to many persons.” In Kampff v. State, 371 So.2d 1007 (Fla.1979), we held that this aggravating factor is not present unless a great risk of death is created to “many” persons, not one or two. The record before us does not support a finding that the lives of many persons were threatened by the present homicide.

The lower court did not improperly duplicate the aggravating circumstances of robbery and pecuniary gain, as appellant contends, since Brown committed the crime of rape in conjunction with the murder. Provence v. State, 337 So.2d 783, 786 (Fla.1976).

Although improper aggravating circumstances (factors enumerated 1 and 2) went into the calculus of the trial judge’s sentence decision and there was identified a mitigating circumstance (appellant’s age), nevertheless, Elledge v. State, 346 So.2d 998 (Fla.1977) does not compel a reversal of the sentence judgment in this case. This is so because unlike Elledge, here “we can know” that the result of the weighing process would not have been different had the impermissible factors not been present. 346 So.2d at 1003. The trial judge has told us in his order that the appellant’s age, 22 years at the time of the offense and 23 years at the time of the trial, had only “some minor significance.” When this tenuous factor is juxtaposed against at least two well-founded aggravating circumstances it is beyond reason to conclude that the trial judge’s decision to impose the death penalty would have been affected by the elimination of the unauthorized aggravating circumstances. This case then is dissimilar to Elledge, but like Hargrave v. State, 366 So.2d 1 (Fla.1978), where the doubling up of aggravating circumstances was not fatal to the imposition of a death sentence even in light of the existence of two mitigating circumstances. Here, as there, ample other statutory aggravating circumstances exist to convince us that the weighing process has not been compromised. Given the imprecision of the criteria set forth in our capital punishment statute we must test for reasoned judgment in the sentencing process rather than a mechanical tabulation to arrive at a net sum. Hargrave v. State, supra; State v. Dixon, 283 So.2d 1 (Fla.1973).

Accordingly, the judgment of conviction and sentence of death must be affirmed.

It is so ordered.

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

       § 921.141, Fla.Stat. (1973).


text:
    Kenneth EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 56832.
    Supreme Court of Florida.
    Jan. 31, 1980.
    Rehearing Denied April 18, 1980.

      Elton H. Schwarz, Public Defender, and Bruce M. Wilkinson, Asst. Public Defender, Nineteenth Judicial Circuit, Stuart, and Richard L. Jorandby, Public Defender, and Paul M. Herman, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., and Marc E. Kirk, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

By this appeal, Kenneth Edwards seeks review of a trial court order finding sections 812.019 and 812.022(2), Florida Statutes (1977), to be constitutional. We affirm the order of the trial court.

Section 812.022(2) states:

Proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.

(Emphasis supplied.)

Edwards asserts that the inference created by this provision violates his rights to due process and against self-incrimination. The inference arising from the unexplained possession of stolen property, and jury instructions referring to it, have been specifically approved by both Florida and federal courts. Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); State v. Young, 217 So.2d 567 (Fla.1968); Griffin v. State, 370 So.2d 860 (Fla. 1st DCA 1979) (reversed on other grounds). Since there is a rational connection between the fact proven (the defendant possessed stolen goods) and the fact presumed (the defendant knew the goods were stolen), the inference created by section 812.022(2) does not violate Edwards’ due process rights. Further, the statute, and the jury instruction derived from it, did not force Edwards to testify. Edwards could have attempted to explain his possession of the stolen goods by evidence other than his own testimony. Even if he had failed to present any evidence in explanation, the jury was not compelled to find him guilty. Therefore, section 812.022(2) does not violate the fifth and fourteenth amendment right to remain silent. See Barnes, 412 U.S. at 846-47, 93 S.Ct. 2357; and Young, 217 So.2d at 570-71.

Edwards’ challenges to the constitutionality of section 812.019 are identical to those considered and rejected by this Court in State v. Dickinson, 370 So.2d 762 (Fla.1979). We reaffirm our decision in Dickinson.

Accordingly, we affirm the ruling by the circuit court of the nineteenth judicial circuit, upholding the validity of sections 812.-019 and 812.022(2), Florida Statutes (1977).

It is so ordered.

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


author: ENGLAND, Chief Justice. BOYD, Justice,

text:
    DISTRICT SCHOOL BOARD OF LAKE COUNTY, Sonny Walters, and Auto Owners Insurance Company, Petitioners, v. Robert TALMADGE, by his next friend and natural guardian, Billy Talmadge, and Billy Talmadge, Individually, Respondents.
    No. 53716.
    Supreme Court of Florida.
    Feb. 14, 1980.
    Rehearing Denied April 18, 1980.

      Monroe E. McDonald, of Sanders, McE-wan, Mims & McDonald, Orlando, for petitioners.
    David M. Hammond, of Meyers, Mooney & Adler, Orlando, for respondents.
    Michael P. McMahon, of Akerman, Sen-terfitt & Eidson, Orlando, and Jim Smith, Atty. Gen., and Horace Schow II, Asst. Atty. Gen., Tallahassee, for Jerome L. Barber, amicus curiae.
    Stuart Simon, Dade County Atty., and Mark A. Dresnick, Asst. County Atty., Miami, for Dade County, Florida, amicus curiae.
    Mel R. Martinez, of Billings, Frederick, Wooten & Honeywell, Orlando, for Bane Cheek and Fred Cheek, amicus curiae.
    Larry Klein, West Palm Beach, for The Academy of Florida Trial Lawyers, amicus curiae.
    George Stelljes, Jr., President for Florida Defense Lawyers Association, Jacksonville, amicus curiae.
   ENGLAND, Chief Justice.

We here interpret one aspect of the state’s waiver of sovereign immunity statute, against a background of conflicting district court decisions. Donner v. Hether-ington, 370 So.2d 1225 (Fla. 3d DCA 1979); Talmadge v. District School Board, 355 So.2d 502 (Fla. 2d DCA 1978); Paul v. Heritage Insurance Co. of America, 363 So.2d 563 (Fla. 3d DCA 1978); Metropolitan Dade County v. Kelly, 348 So.2d 49 (Fla. 1st DCA 1977); Pennington v. Serig, 353 So.2d 107 (Fla. 3d DCA 1977). The issue presented is whether under subsection 768.28(9), Florida Statutes (1975), a state employee may be made a party defendant in an action for personal injuries allegedly occasioned by the employee’s negligence while acting in the scope of his employment.

Robert Talmadge was a student at Ta-vares Middle School, a public school operated by the District School Board of Lake County, Florida. Talmadge brought suit against the Board, its insurance company, and Sonny Walters, a physical education instructor at the school, seeking damages for injuries he received while performing on a trampoline. The complaint alleged that during a physical education class, Walters ordered Talmadge to perform certain acrobatics on the trampoline. When Talmadge refused, Walters physically picked him up, placed him on the trampoline, and twice more ordered him to perform. It is alleged that Talmadge then attempted a flip, during which he injured his knee and teeth. Talmadge allegedly had minimal instruction regarding acrobatics and safety on the trampoline, and was not prepared to perform such activities safely.

Walters filed a motion to dismiss himself as a defendant, contending that subsection 768.28(9) immunized him from suit. The trial court granted the motion. On appeal, the second district court of appeal reversed, holding that the statute “acts only to indemnify an employee of the state for a monetary judgment entered against him as a result of negligent acts occurring within the scope of his employment, but does not operate as a bar against suing such an employee as a party defendant.” 355 So.2d at 503. Walters and the other petitioners now challenge the district court’s ruling on that point.

Article X, section 13 of the Florida Constitution states that “ [provision may be made by general law for bringing suit against the state, as to all liabilities now existing or hereafter originating.” Pursuant to this authorization, the legislature enacted section 768.28, waiving the state’s sovereign immunity in tort actions within certain express limitations. Prior to the enactment of the waiver statute, of course, Florida’s public employees had been liable for their tortious acts. See, e.g., Davis v. Watson, 318 So.2d 169 (Fla. 4th DCA 1975), cert. denied, 330 So.2d 16 (Fla.1976). Consequently, section 768.28 led to the coexistence of both governmental and employee liability, creating what has been termed a new “problem of coordination.” Subsection 768.28(9) is the legislature’s attempt to treat this problem, since it addresses the effect which the introduction of governmental liability has on the liability or immunity of the individual state employee.'

Unfortunately, the language of subsection 768.28(9) appears on its face to be inconsistent. The first sentence reads:

(9) No officer, employee, or agent of the state or its subdivisions shall be held personally liable in tort for any injuries or damages suffered as a result of any act, event, or omission of action in the scope of his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property, (emphasis added).

The second sentence, which the legislature added one year after the first, provides:

Subject to the monetary limitations set forth in subsection (5), the state shall pay any monetary judgment which is rendered in a civil action personally against an officer, employee, or agent of the state which arises as a result of any act, event, or omission of action within the scope of his employment or function, (emphasis added).

Facially at least, the first sentence seemingly declares that public employees are not personally liable for employment negligence, while the second sentence seemingly provides that the state will pay (up to a stated amount) after personal liability has been determined.

Petitioners attempt to reconcile the apparent inconsistency, contending that the two sentences of subsection (9) deal with two distinct situations. They argue that the first sentence makes public employees immune from suit, except in those instances where they act in bad faith, with a malicious purpose, or in a manner exhibiting wanton or willful disregard of human rights, safety or property. Only in these latter situations, they suggest, is the second sentence triggered, thus permitting the employee to be sued and obligating the state to indemnify him from any judgment. This reading of the statute apparently was adopted both in Metropolitan Dade County, where the court held that a Dade County bus driver’s motion to dismiss should have been granted because the claim against him individually did not allege that he had acted in bad faith, and in Pennington, where the court held that “[i]n the absence of any allegation or proof of bad faith or malicious purpose on their part, defendants are immune from personal liability under Section 768.28(9), Florida Statutes (1975).”

Respondents, on the other hand, ask us to adopt an interpretation of subsection (9) to the effect that the provision acts only to indemnify public employees for monetary judgments entered against them, but does not render them immune from suit. They argue that it would be impossible for judgments to be rendered personally against public employees, in accordance with the second sentence, if the first sentence immunized those employees from suit. Moreover, the legislature would have declared unequivocally if it intended that public employees be given immunity from suit. This rationale is supported by the Talmadge de-cisión below and by the Paul and Donner cases.

Neither the parties nor amici have brought to our attention any statutory or case authority in this state which reconciles the conflicting provisions of subsection 768.-28(9). A survey of comparable statutes in other jurisdictions provides limited assistance in this regard, but is relevant for the contrasts it provides.

We have, on occasion, looked to the Federal Tort Claims Act and its applicable precedents for guidance in the area of sovereign immunity, but the federal act contains no provision comparable to subsection (9). That portion of the act which immunizes federal employees from liability for the negligent operation of motor vehicles while acting within the scope of their employment is not sufficiently similar to warrant any conclusion regarding the operation of subsection (9).

An analysis of legislation in other jurisdictions is likewise nonconelusive, as none contains a provision quite like subsection (9). Most state statutes are more specific regarding the proper relationship between governmental and employee tort liability.

For example, Connecticut’s sovereign immunity statute has a provision very similar to the seemingly immunizing first sentence of subsection (9). It provides that “[n]o state officer or employee shall be personally liable for damage or injury, not wanton or wilful, caused in the performance of his duties and within the scope of his employment.” It then provides, however, that “[a]ny person having a complaint for such damage or injury shall present it as a claim against the state under the provisions of this chapter.” Thus, the Connecticut statute is internally consistent by first providing state employees with immunity from liability and then explicitly directing that tort claims are to be filed against the state. Subsection (9), of course, does not specify whether claims should be filed against the state, the employee, or both.

Tennessee takes a slightly different approach. It allows its public employees to be sued but only when the action may aid in compensating the plaintiff. It limits tort actions against government employees to those cases where the damages sought, or judgment entered, exceeds minimum statutory limits of insurance coverage or the actual amount of such coverage, whichever is greater. In those cases, the governmental entity must be made a party defendant to the action.

Statutes limiting or preventing suits against public employees under some circumstances can be found in other states, but virtually every American jurisdiction permits tort suits against both the government and its employees. This incidence is relevant to our interpretation of section 768.28, for the absence of an explicit prohibition against suing public employees for their torts suggests that none was intended.

As suggestive as is the direction of other sovereign immunity statutes, a more compelling analysis emerges from our principles of statutory construction. This Court has recognized that “[wjhere possible, it is the duty of the courts to adopt that construction of a statutory provision which harmonizes and reconciles it with other provisions of the same act.” Woodgate Development Corp. v. Hamilton Investment Trust, 351 So.2d 14, 16 (Fla.1977). Only one interpretation of subsection (9) will satisfy this obligation — one which gives content to each sentence of the provision.

We construe subsection (9) not to prevent a state officer, employee, or agent from being made a party defendant in an action under section 768.28. In fact, as we view the statute, both individual and joint suits are possible and, rather than providing public employees with immunity from suit, subsection (9) merely addresses the extent to which the state will be liable for their torts.

Liability outside section 768.28. Quite obviously, individual suits against an employee, but not against the state, are possible whenever the employee was not acting within the scope of his employment or, while within his employment, has acted “in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” In either of these situations the first sentence of subsection (9) offers no immunity at all, as the employee’s conduct falls outside the protections of the statute. The employee alone may be sued in these situations, and the state can neither be made a defendant nor assigned responsibility for the payment of any judgment rendered against the employee. For actions outside the scope of the statute, of course, the employee’s liability is simply governed by traditional, pre-existing legal principles for tort actions against public employees. Our conclusion in regard to these individual suits is supported by the vast weight of authority in this country.

Virtually every existing right of indemnity enjoyed by public officials is subject to exclusions not only for action beyond the outer perimeters of their authority, but also for egregious action within those perimeters. Egregious action has been defined variously, but each definition seeks to ensure that the individual official ultimately bears personal liability in-those situations where the need for deterrence and retribution is greater.

Liability under section 768.28. For those actions which fall within the purview of section 768.28, plaintiffs have a range of litigation options:

(1)The plaintiff can invoke the provisions of section 768.28 and sue both the state and employee jointly. The'state then becomes obligated, under the second sentence of subsection (9), to pay any judgments to the extent of the monetary limitations set forth in subsection (5). The negligent employee remains personally liable for that portion of a judgment rendered against him which exceeds the state’s liability limits.

(2) The plaintiff can invoke the provisions of section 768.28 and sue the state alone. The state’s liability, of course, would be limited by subsection (5).

(3) The plaintiff can sue the employee alone, without invoking section 768.28, under traditional legal principles regarding tort actions against public employees.

The foregoing interpretation of subsection (9) is the one most consistent not only with the language of section 768.28, but also with its purpose. We have noted that “section 768.28 evinces the intent of our legislature to waive sovereign immunity on a broad basis” in order to provide more adequate compensation for victims of governmental torts. By allowing suits against negligent employees as well as the state, this objective is enhanced.

Our interpretation of subsection (9) also harmonizes that provision with other related statutes. For example, section 111.07, Florida Statutes (1977), authorizes any agency or political subdivision of the state to defend certain tort actions brought against their officers and employees. Section 111.06, Florida Statutes (1977), authorizes the defense of any warden, sheriff, and deputy sheriff “in any civil suit arising out of the performance of his duties,” and enables the state “to indemnify such person” if a judgment is rendered. Lastly, section 111.065, Florida Statutes (1977), permits the payment of all defense costs and reasonable attorney’s fees in any criminal and civil cases against a law enforcement officer when the officer wins the action or it is dismissed. These statutes, in providing for the defense of certain lawsuits against public employees, would be rendered practically meaningless if subsection (9) immunized public employees from suit in most instances.

Finally, our construction of this statute is supported by considerations of judicial economy and public policy. Joining a public employee and the state together as defendants in one action will facilitate discovery and help avoid a multiplicity of lawsuits. Payment of claims and judgments will be expedited since all interested parties will be joined in one action. Most importantly, holding public employees personally responsible for their own negligence may provide an incentive for more careful performance of official duties and obligations.

Our interpretation of subsection (9) continues the long-established policy in this state of holding public officers, employees' and agents liable for their tortious acts. We hold that section 768.28 merely waives the state’s preexisting immunity from suit, and that no immunity from suit for employees has been created. For the reasons expressed, the decision below is affirmed.

It is so ordered.

ADKINS, OVERTON and SUNDBERG, JJ., concur.

BOYD, J., concurs in part and dissents in part with an opinion.

BOYD, Justice,

concurring in part and dissenting in part.

My reading of section 768.28(9), Florida Statutes (1975), is that officers, employees, and agents of the state and its subdivisions can be held personally liable in tort for injuries or damages suffered as a result of any act, event, or omission of action in the scope of their employment or functions, amounting to simple or ordinary negligence. In such cases of negligence the state, its agency or subdivision is to be joined as a party defendant and shall satisfy any judgment rendered up to its statutory limit of liability. § 768.28(5), Fla.Stat. (1975).

Where an officer, employee, or agent of the state or a subdivision acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property, personal judgment may be rendered against him. In such a case the state will not be a party defendant and will not be required to pay the judgment.

Since the state must satisfy judgments for ordinary negligence up to a limit of $50,000 per claim, the state is the real party in interest. Therefore the legislature intended the state to be named as a party defendant in such litigation. The state is to defend its employee and thereby defend itself. Surely the legislature did not intend for the state to have to pay a judgment entered against an employee personally who, for whatever reason, fails to vigorously defend the lawsuit. Due process requires that the state have an opportunity to defend against the claim. Furthermore, since the state is not liable for damages caused by the employee’s willful and wanton acts, it should be allowed a forum in which to deny liability just as insurance companies are allowed a forum in which to assert nonliability for judgments entered against their insureds.

It is my conclusion, therefore, that no judgment against the state for the negligence of an employee can be valid unless both the state and the employee are named as defendants with the state being liable for the first $50,000 per claim in cases of ordinary negligence. The employee is personally liable for amounts in excess of the statutory limits and is fully liable for damages caused by his willful, wanton or bad faith actions.

I do not agree that there is any legislative intent for employees to be held personally liable for torts committed in the scope of their employment outside of the operation of section 768.28. Public employees should not be subject to being sued in connection with acts, events, or omissions in the scope of their employment without the protection accorded them by this statute.

Although section 768.28 presents problems of construction with its complex and contradictory language, I conclude from it that the legislature intended the statute to apply to all agencies of state government and to the state’s political subdivisions. If the legislature meant something different it should say so by clarifying the language of section 768.28.

      . Bermann, Integrating Governmental and Officer Tort Liability, 77 Colum.L.Rev. 1175, 1176 (1977).

      . Our use of the term “immunity” in this decision denotes mere nonsusceptibility to suit under the statute. As in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1012 n.l (Fla.1979), “[w]e do not deal here with personal immunity of individual officers acting in their official capacity. This distinct principle of law is explored in cases such as McNayr v. Kelly, 184 So.2d 428 (Fla. 1966), and Rivello v. Cooper City, 322 So.2d 602 (Fla. 4th DCA 1975).”

      . Ch. 74-235, § 1, Laws of Fla.

      . Two commentators have criticized this “anomaly.” See Seligman & Beals, The Sovereignty of Florida Municipalities: In-Again, Out-Again, When-Again, 50 Fla. B. J. 338 (1976). See also 1978 Op.Att’y Gen. Fla. 078-145 (December 21, 1978).

      .The extent of the state’s obligation was specified in subsection 768.28(5), which read:
      Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $50,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state arising out of the same incident or occurrence, exceeds the sum of $100,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $50,000 or $100,000, as the case may be, and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature.
      Although subsection (5) has been amended since the injury in this case, Ch. 77-86, § 1, Laws of Fla., the changes do not affect this decision.

      . 348 So.2d at 50. The court did not examine or analyze the inconsistencies in the language of subsection (9). Rather, it quoted and, apparently, relied solely on the first sentence of the provision in reaching its decision.

      . 353 So.2d at 108. The Pennington court also failed to evaluate this troublesome provision. Pennington was implicitly overruled by another panel of the same court in Paul v. Heritage Ins. Co., 363 So.2d 563 (Fla. 3d DCA 1978).

      . In Paul v. Heritage Ins. Co., 363 So.2d 563 (Fla. 3d DCA 1978), one panel of the third district court of appeal merely adopted the Tal-madge court’s interpretation of subsection 768.28(9). Another panel followed Talmadge and Paul in Donner v. Hetherington, 370 So.2d 1225 (Fla. 3d DCA 1979).

      . Five amicus briefs were submitted in this proceeding. Our analysis follows mainly the majority positions asserted by the parties, however.

      . See, e. g., Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979).

      . As two commentators have stated aptly: “[The Federal Tort Claims Act] does not entertain the anomalous proposition of barring personal liability and providing for the indemnity of it at the same time.” Seligman & Beals, supra note 4, at 341.

      . 28 U.S.C. § 2679(b) (Supp.1979) provides:
      (b) The remedy against the United States provided by sections 1346(b) and 2672 of this title for injury or loss of property or personal injury or death, resulting from the operation by any employee of the Government of any motor vehicle while acting within the scope of his office or employment, shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against the employee or his estate whose act or omission gave rise to the claim.
      In any event, section 2679(b) applies only to government drivers and “there is no comparable . . provision [in the federal act] with respect to the vast number of government employees in other categories. They are freely suable for their torts, and may be joined as codefendants with the United States when there is a basis for federal jurisdiction over them.” L. Jayson, Handling Federal Tort Claims § 175.03 (1979).

      . For a survey of the positions the states have taken with respect to governmental immunity, see Harley & Wasinger, Governmental Immunity: Despotic Mantle or Creature of Necessity, 16 Washburn L.J. 12, 33 (1976).

      . Conn.Gen.Stat. § 4-165 (1979).

      . Connecticut takes a different approach with regard to municipal employees. If suit is brought against both the municipality and its employee, the municipality becomes liable for all damages caused by the employee. Id. § 7-465.

      . Tenn.Code Ann. § 23-3322 (Cum.Supp. 1978).

      . Many sovereign immunity statutes provide that a judgment against the state in an action under the statute constitutes a complete bar to any action by the claimant against the negligent employee. See, e.g., Haw.Rev.Stat. § 662-10 (1976); Ind.Code Ann. § 34-4-16.5-5 (Burns Cum.Supp.1979); Tex.Rev.Civ.Stat. Ann. art. 6252-19(12)(a) (1974).

      . Bermann, supra note 1, at 1213.

      . See Bermann,- supra note 1, at 1190-91, and authorities cited therein.

      . Id. at 1191 (footnote omitted).

      . The court below held that subsection (9) requires the state to “indemnify” public employees for monetary judgments entered against them. This is not wholly accurate, because subsection (9) goes beyond mere reimbursement and requires the state to pay judgments directly. Professor Bermann has characterized the situation as follows, “Today,' statutes frequently authorize or even compel the government to indemnify its officers. A few state legislatures [e.g. — Florida] have taken the logical next step of requiring the government to satisfy those judgments directly.” Bermann, supra note 1, at 1191 (footnotes omitted).

      . Judgments in excess of the limitations in subsection (5) can also “be reported to the legislature, but may be paid in part or in whole only by further act of the Legislature.” § 768.-28(5), Fla.Stat. (1975).

      . Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1022 (Fla.1979).

      . Indeed, it would undermine the purpose of section 768.28 to withdraw preexisting remedies from the victims of governmental torts.

      . It is our obligation, where possible, to construe statutes so that they operate in harmony with each other. See State ex rel. School Bd. v. Department of Educ., 317 So.2d 68 (Fla.1975). See also note 26 infra.

      .As noted in State ex rel. Landis v. Crume, 131 Fla. 848, 853, 180 So. 38, 41 (1938):
      In construing acts of the Legislature, it is the duty of a court to ascertain the legislative intent and give the provisions of the act a field of operation to harmonize with such intent. The interpretation here given makes [the] sections consistent and workable, while any other interpretation renders them in part inconsistent and unworkable.

      . See L. Jayson, supra note 12, at § 176.02.

      . But see Bell, Proposed Amendments to the Federal Tort Claims Act, 16 Harv. J. on Legis. 1 (1979), which argues against exposing public employees to the time, expense, and possible embarrassment of a lawsuit.


text:
    Teodula Paz SALOMON et al., Appellants, v. STATE of Florida, Appellee.
    No. 53895.
    Supreme Court of Florida.
    March 13, 1980.
    Don S. Cohn of Engel, Aronson, Fried & Cohn, and Mark R. Baer of the Law Office of Angelo A. Ali, Miami, for appellants.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., Miami, for appellee.
   PER CURIAM.

These appeals were transferred to us by the District Court of Appeal, Third District, because the trial court impliedly upheld the constitutionality of section 849.09, Florida Statutes (1975). The trial court’s ruling upholding the constitutionality of section 849.09, Florida Statutes (1975), is consistent with our holding in Barron v. State, 271 So.2d 115 (Fla.1972). We hold that this constitutional issue is frivolous, and we therefore transfer this case back to the District Court of Appeal, Third District, for consideration of the remaining points on appeal.

It is so ordered.

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

ADKINS, J., dissents.


text:
    THE FLORIDA BAR. In re Henry E. B. KURTZ.
    No. 58207.
    Supreme Court of Florida.
    March 13, 1980.

      Donald I. Bierman, Miami, for petitioner.
    Jacquelyn S. Plasner, Asst. Staff Counsel, The Florida Bar, Miami, for respondent.
   PER CURIAM.

This is a petition for leave to resign filed by Henry E. B. Kurtz, a member of The Florida Bar, pursuant to Florida Bar Integration Rule, article XI, rule 11.08(2). We have jurisdiction under article V, section 15, Florida Constitution.

The Florida Bar has filed a grievance against petitioner for violation of Disciplinary Rules 1-102(A)(3) (engaging in illegal conduct involving moral turpitude), (A)(4) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), (A)(5) (engaging in conduct that is prejudicial to the administration of justice), and for violation of Florida Bar Integration Rule, article XI, rule 11.02(4) (requiring attorneys to hold funds or property entrusted to them for a specified purpose in trust). The Bar alleges that petitioner misappropriated $180,000 from funds being held by him in connection with an estate and a trust. The Dade County State Attorney’s office is presently investigating the facts giving rise to this grievance, and it is anticipated that criminal charges will be filed against petitioner. The Florida Bar supports Mr. Kurtz’s petition for leave to resign.

Having carefully reviewed the record, we conclude that the public will be best served by granting the petition. We therefore grant the petition without leave ever to seek reinstatement. This judgment is further conditioned upon petitioner agreeing go make restitution to the greatest possible extent, and upon petitioner agreeing to cooperate fully with any client security fund investigation made by The Florida Bar.

It is so ordered.

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