author: HOBSON, Judge.

text:
    John E. RALEIGH, Appellant, v. STATE of Florida, Appellee.
    No. 81-182.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 1981.
    Jerry Hill, Public Defender, and Karla J. Staker, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Judge.

Appellant pled nolo contendere to charges involving possession of marijuana and dia-zepam, specifically reserving the right to appeal the denial of his motion to suppress. Appellant contends that the police officer exceeded the permissible scope of a pat-down or frisk incident to an investigatory stop. We agree and reverse.

A Clearwater police officer was dispatched to the Mai Tai Lounge at approximately 1:00 a.m. to investigate a reported disturbance. Upon arrival, the officer was instructed by a security guard that two males wearing blue jeans had been fighting across the street in the Pier 60 parking lot. The guard did not know if weapons were involved and was not sure where the two had gone while she was inside telephoning the police. The police officer drove through the Pier 60 parking lot and observed two men who fit the general description. As the officer approached in his vehicle, appellant quickly turned, lifted the front of his shirttail, and made a shoving motion down the front of his trousers. After ordering them to stop, the police officer began a pat-down search for weapons. The officer reached into the waistband area of appellant’s pants where he felt a plastic bag. He suspected that the plastic bag contained contraband and had no apprehension that it was a weapon. He removed.the bag and, his suspicions being confirmed, placed appellant under arrest.

Appellant first contends that the officer was not justified in stopping him. Appellant correctly notes that under our “stop and frisk” law a law enforcement officer must have a founded suspicion that a person has committed, is committing, or is about to commit a crime before he may lawfully detain such person. § 901.151, Fla. Stat. (1979); State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978). “A ‘founded suspicion’ is a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer’s knowledge.” State v. Stevens at 1245. Sub judice we believe a “founded suspicion” can easily be gleaned from the above facts. Appellant fit the general description, was in the area of the disturbance and made a furtive motion as he was approached by the officer. Thus the stop was proper.

Appellant next contends that the officer exceeded the permissible scope of a frisk or pat-down incident to an investigatory stop. Appellant argues that the police officer exceeded the permissible scope of a pat-down by reaching into his waistband to remove an object which he knew to be contraband and not a weapon. We agree.

A frisk or pat-down incident to an investigatory stop may be conducted, but only where a law enforcement officer has a reasonable belief that the person detained is armed with a dangerous weapon and offers a threat to the officer or another person. State v. Webb, 398 So.2d 820 (Fla.1981). Furthermore, any such frisk of a detainee conducted after a stop is limited in scope and is permissible only to the extent necessary to disclose the presence of a weapon. § 901.151(5), Fla.Stat. (1979). This statute is our state’s codification of the holding in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Supreme Court in Terry carved out an exception to the ordinary constitutional principles of search and seizure by providing as follows:

He is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such person in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.

392 U.S. at 30-31, 88 S.Ct. at 1884-85, 20 L.Ed.2d at 911 (Emphasis added).

The facts of the case sub judice indicate that the police officer exceeded the permissible scope of the search. Instead of conducting a carefully limited search of the outer clothing for weapons, the police officer went into the waistband area to determine what had been concealed by the furtive motion. The officer candidly testified that, once he felt the plastic bag, he suspected contraband and had no apprehension that it was a weapon. The contraband was then seized and appellant placed under arrest.

The state next argues that the seizure was proper under section 901.151(5) which concludes with the statement that if “such a search discloses such a weapon or any evidence of a criminal offense, it may be seized.” (Emphasis added.) In Dunn v. State, 382 So.2d 727 (Fla.2d DCA 1980), Judge Grimes felt this last sentence bordered on the unconstitutional and, in an effort to preserve its validity, gave subsection (5) the following construction:

Thus, we hold that the last sentence of subsection (5) means only that if in the course of a legal stop and frisk, a law enforcement officer removes from a suspect’s possession an object which he believes might be a weapon, but finds that instead of it being a weapon it is ‘evidence of a criminal offense,’ he may still seize it. The seizure of contraband or other evidence of a crime during a legal stop and frisk is permissible so long as the officer reasonably believes the object which he is acquiring might be a weapon.

382 So.2d at 730. We note that since the Dunn opinion, the State of Washington in State v. Broadnax, 25 Wash.App. 704, 612 P.2d 391 (1980), has held such a search and seizure proper. We choose not to follow State v. Broadnax and reiterate our holding in Dunn. Accordingly, since the police officer had no apprehension that the object he found in the waistband was a weapon, we hold that the seizure of the narcotics was improper.

We vacate the judgment, reverse the order denying the motion to suppress, and remand the case for further proceedings not inconsistent with this opinion.

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


source: Caselaw Access Project

author: RYDER, Judge.

license: Public Domain

text:
    David L. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Nos. 81-208, 81-209.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 1981.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Williams appeals his convictions for burglary, grand theft and dealing in stolen property. We reverse the conviction for grand theft since it was based on the same course of conduct that provided the foundation for the dealing in stolen property conviction. See Kelly v. State, 397 So.2d 709 (Fla. 5th DCA 1981); section 812.025, Florida Statutes (1979). We affirm the convictions for burglary and dealing in stolen property but vacate the sentences and remand for a hearing to determine if appellant had a prior felony conviction. If not, the court must order a presentence investigation prior to resentencing. See Lopes v. State, 309 So.2d 591 (Fla.2d DCA 1975); Fla.R.Crim.P. 3.710.

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


author: BOOTH, Judge.

text:
    Diana Pearl ARNOLD, Appellant, v. James Elmer MILLER, Appellee.
    No. W-214.
    District Court of Appeal of Florida, First District.
    Oct. 22, 1981.
    Michael Jones of Selby, Chesser, Win-gard, Barr & Jones, Fort Walton Beach, for appellant.
    James G. Etheredge of Etheredge, Chavis & Harrell, Fort Walton Beach, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from an order reducing to judgment an Ohio dissolution of marriage decree, modifying that decree as to visitation rights with the minor child of the parties. The mother appeals the denial of her petition to modify the Ohio decree so as to increase the amount of child support.

At the time of dissolution in 1972, the minor child of the parties, born in 1969, was three years old. Child support was set in the Ohio decree at $15 a week. In 1973, the father’s support obligation was raised to $20 a week. There it remained until 1979, when appellant filed her Florida petition.

Appellant’s income in 1973 was $9,725, and the father’s was $11,000. By the time of the 1979 hearing, the mother’s individual income was $6,100; the father’s was $17,-800. Both parties had remarried in the interim, and their respective spouses were employed. Whether or not the trial judge should have considered spouses’ incomes was not raised on appeal. See, Harville v. Harville, 369 So.2d 377 (Fla. 1st DCA 1979); Condon v. Condon, 295 So.2d 681 (Fla. 1st DCA 1974); and Birge v. Simpson, 280 So.2d 482 (Fla. 1st DCA 1973). Nor is it certain, because he gave no reason for denying the petition, that the trial judge did in fact consider respective spouses’ incomes, details of which were introduced into evidence. The law is clear that the obligation of support of a child remains with the natural parents and is not extinguished by subsequent marriage. Florida Statutes, Section 61.13.

In the instant case, uncontroverted testimony established that, since the initial decree, child-rearing expenses had increased to $440 a month. The evidence further established that the father’s income had increased significantly, and the mother’s income had decreased. We hold that the trial judge abused his discretion in denying the mother’s petition to increase the amount of the support. Melvin v. Melvin, 391 So.2d 691 (Fla. 1st DCA 1980); Hall v. Hall, 363 So.2d 137 (Fla.1978). An award of less than $35 a week would be an abuse of discretion, although a larger amount could, in the discretion of the court, be awarded. On remand, the trial court is directed to increase support to no less than $35 per week and to award the wife’s costs and reasonable attorney fees in accordance with the principals stated in Canakaris v. Canakaris, 382 So.2d 1197, 1204-1205 (Fla.1980).

REVERSED AND REMANDED for further proceedings consistent with this opinion.

ERVIN and JOANOS, JJ., concur.

      . The Ohio decree also required the father to keep medical hospitalization insurance for the child and bear half of all other medical expenses. The mother’s present husband is in the military, and most of the child’s medical needs are provided by the military, thereby relieving the father of that financial burden.


author: PER CURIAM.

text:
    John Joseph WENDELL, Appellant, v. STATE of Florida, Appellee.
    Nos. WW-394, XX-30.
    District Court of Appeal of Florida, First District.
    Oct. 22, 1981.

      Michael Allen, Public Defender, Margaret Good and Melanie Hines Alford, Asst. Public Defenders, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   PER CURIAM.

The subject of these consolidated appeals is a judgment and sentence, following a jury trial, for unlawfully entering a conveyance and grand theft, Case No. WW-394, and the revocation of appellant’s probation, which had resulted from a previous conviction, Case No. XX-30. We find merit in two of the points raised.

On September 1, 1979, someone broke into an automobile parked in front of Jewell’s Bar in Pensacola and took a watch which had been left in the car. Appellant was charged with breaking into the car and stealing the watch. Mrs. Jewell Barr, owner of the bar, had been present at the bar when the incident occurred and was listed on the State’s witness list and scheduled to testify at the jury trial. Due to a serious family illness, Mrs. Barr was unable to appear as a witness. Instead, the State called Mr. Kenneth White, who had also been present at the bar when the incident occurred outside of the bar. Mr. White had not been listed on the State’s witness list pursuant to Rule 3.220, Fla.R.Cr.P.

As soon as the State announced that it would call Mr. White instead of Mrs. Barr, the trial judge said, “We can give counsel the right to depose him and there will be no bias or prejudice. They know what he’s going to essentially testify to.” Defense counsel stated he had no idea what Mr. White would testify to. The court replied that all it could do was give defense counsel an opportunity to depose the witness. Defense counsel brought up the subject of a Richardson inquiry, and alluded to the possibility of prejudice, stating that the defense was based on certain statements known to have been made by the original State’s witness. The trial judge again stated that defense counsel could depose the witness before further testimony was taken. After the witness was deposed, defense counsel again stated his opposition to allowing the witness to testify and represented to the court that White’s testimony differed “in material respects from both the police report and what my prior investigation indicates the State’s witnesses were going to testify to, and I feel I’ve been prejudiced by the allowance of this testimony, particularly at this late date.” Nevertheless, the court said he was complying with the law as stated in Cooper v. State, 336 So.2d 1133 (Fla.1976), by giving defense counsel an opportunity to depose the witness before his testimony was admitted. Subject to defense counsel’s objection, Mr. White was then called by the State to testify.

We agree with appellant that the trial court erred in failing to conduct an inquiry pursuant to Richardson v. State, 246 So.2d 771 (Fla.1971). Under Richardson, a trial court may, in its discretion, determine whether the State’s non-compliance with the discovery rules would result in prejudice or harm to the defendant; however, the trial court may properly exercise its discretion only after an adequate inquiry into the circumstances surrounding the non-compliance. The inquiry may include, but is not limited to, whether the violation was inadvertent or willful, whether it was trivial or substantial, and what effect, if any, the violation had on the defendant’s ability to prepare for trial. Id. The State has the burden of showing that there has been no prejudice. Cumbie v. State, 345 So.2d 1061 (Fla.1977).

Although it is apparent that the breach was unintentional, the more important question involves the effect of the breach on the defendant’s ability to prepare for trial.

In the instant case, the trial court assumed without inquiry that White’s testimony would be essentially the same as Mrs. Barr’s testimony would have been, even though after deposing the witness, defense counsel stated that material differences existed in the testimony. If the full inquiry required by Richardson is not made, an appellate court cannot review the record and determine that the error was harmless. Cumbie v. State, supra; Boynton v. State, 378 So.2d 1309 (Fla. 1st DCA 1980), cert. denied, 386 So.2d 642 (Fla.1980); Jones v. State, 376 So.2d 437 (Fla. 1st DCA 1979); McClellan v. State, 359 So.2d 869 (Fla. 1st DCA 1978), cert. denied, 364 So.2d 892 (Fla.1978).

The trial court referred to Cooper v. State, 336 So.2d 1133 (Fla.1976), in stating that it was sufficient to allow defense counsel to depose the undisclosed witness. In Cooper, however, the trial court held a lengthy hearing in order to determine whether the defense had been unfairly surprised. The assumption that the opportunity to depose always cures a failure to comply with the discovery rules is an incorrect interpretation of the law. McClellan v. State, supra. Accordingly, we reverse and remand for a new trial.

The record reflects that appellant’s probation, resulting from a previous conviction, was revoked solely because of the conviction for unlawfully entering a conveyance and grand theft. The proof consisted of testimony of a deputy clerk of the circuit court to the effect that a verdict had been rendered and sentence imposed in that case. Appellee concedes that the court made no independent determination that a violation of law had occurred. Inasmuch as we are reversing the judgment and sentence for unlawfully entering a conveyance and grand theft, the revocation of probation must also be reversed and remanded. State ex rel Roberts v. Cochran, 140 So.2d 597 (Fla.1962). On remand, the court should make an independent determination of whether the conditions of the probation were violated. Id.

Case WW-394 is reversed and remanded for new trial. Case XX-30 is reversed and remanded for an independent determination as to violation of the conditions of probation.

McCORD and SHIVERS, JJ., and MASON, ERNEST E., (Retired) Associate Judge, concur.


author: SHIVERS, Judge.

text:
    Robert HOLDEN, Surviving Spouse of Mary Lee Gardner a/k/a Mary Lee Holden, Appellant, v. ESTATE OF Mary Lee GARDNER a/k/a Mary Lee Holden, Appellee.
    No. XX-256.
    District Court of Appeal of Florida, First District.
    Oct. 22, 1981.

      E. Thornton Jackson, Jr. and James H. Earp, Jacksonville, for appellant.
    Harry Katz, Jr., of Katz & Katz, Jacksonville, for appellee.
   SHIVERS, Judge.

Surviving spouse appeals from a final order denying his claim of homestead property, contending that Article X, Section 4(c) of the Florida Constitution prohibits the devise of the homestead where the owner, who is not the head of a family, is survived by a spouse. We affirm but certify the question raised by appellant to be of great public importance.

Mary Lee Gardner (Holden) died on October 8, 1979, and left a will devising all of her real property to her sister, Roberta Howard, who is the personal representative of appellee estate. Included in the estate was a house located on a one half acre municipal lot valued at $8,000. The deceased left no lineal descendants.

On July 15, 1980, appellant, the deceased’s surviving spouse, filed a claim of homestead property, alleging the devise of the real property was void under Article X, Section 4(c), Florida Constitution (1968), because it constituted homestead property and therefore appellant was entitled to the property. Appellee filed an objection to the claim of homestead, asserting that the devise was valid because the deceased was not the head of a family and therefore the real property did not constitute homestead property. It was undisputed that appellant and the deceased resided on the property in question until her death, and that the property was solely owned by the deceased although appellant was the head of their family. The trial court denied the claim of homestead on the ground that the property was not homestead property.

In adjudicating this appeal, we are confronted with the issue of whether the constitutional prohibition against the devise of homestead, when the owner is survived by a spouse, is applicable when the surviving spouse was the head of the family.

Article X, Section 4(c), Florida Constitution (1972), provides in part:

The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child.

The definition of the word “homestead” for purposes of descent and distribution is not defined in Article X, Section 4. Article X, Section 4(a)(1), Florida Constitution (1968), exempts from forced sale “a homestead” of specified size and location “owned by the head of a family.” However, Article X, Section 4(c) merely states that the homestead cannot be devised if the owner is survived by spouse and does not expressly contain the additional requirement that the homestead be owned by the head of a family as found in the forced sale provision.

Under the homestead provisions of the 1885 Constitution, Florida courts held that real property could be homestead for purposes of descent and distribution only if it was owned by the head of a family residing on the property at the time of death. Article X, Section 4, Florida Constitution (1885) provided:

Nothing in this Article shall be construed to prevent the holder of a homestead from alienating his or her homestead so exempted by deed or mortgage duly executed by himself or herself, and by husband and wife, if such relation exists; nor if the holder be without children to prevent him or her from disposing of his or her homestead by will in a manner prescribed by law.

The 1885 Constitution also exempted from forced sale a homestead of specified size and location owned by the head of a family. Article X, Section 1, Florida Constitution (1885). Under this provision, a husband who was the head of a family was not entitled to a homestead exemption from the forced sale of his wife’s property although he resided with the wife upon her property. C. B. Witt Company v. Moody, 72 Fla. 459, 73 So. 582 (1916); De Jonge v. Wayne, 76 So.2d 273 (Fla.1954); Abernathy v. Gruppo, 119 So.2d 398 (Fla. 3d DCA 1960). For descent and distribution purposes under the 1885 Constitution, Florida courts also required that the head of the family own and reside on the property at the time of death before the property could be considered homestead. In re Estate of Van Meter, 214 So.2d 639 (Fla. 2d DCA 1968); Jablonski v. Caputo, 297 So.2d 310 (Fla. 2d DCA 1974). In other words, the head of a family was conceptually subsumed as a necessary element to be met in order to prove entitlement to real property as homestead under the forced sale exemption as well as for descent and distribution purposes.

Appellant argues that Article X, Section 4(c), of the 1968 Florida Constitution has done away with the requirement that the owner of realty alleged to be homestead must be the head of a family before the prohibition against the devise of homestead when the owner is survived by spouse becomes applicable. He contends the word “homestead” in the 1968 Constitution is used to define real property which is the family residence. To support his premise, he first points to the 1968 Constitution’s separation of the 1885 Constitution’s provisions relating to homestead for purposes of exemption from forced sale and homestead for purposes of devise, and argues that Article X, Section 4(c) prohibits the devise of homestead whenever the owner, rather than the head of a family, is survived by a spouse. He then directs our attention to the statutory change in the Florida Probate Code of 1975, which he maintains was enacted to reflect the change in the 1968 Constitution from the 1885 Constitution. Prior to 1975, Section 731.05, Florida Statutes (1973) provided:

Any property, real or personal, held by any title, legal or equitable, with or without actual seisen by be devised or bequeathed by will; provided, however, that whenever a person who is head of a family, residing in this state and having a homestead therein, dies and leaves either a widow or lineal descendants or both surviving him, the homestead shall not be the subject of devise, but shall descend as otherwise provided in this law for the descent of homesteads. (Emphasis added.)

Presently, Section 732.4015, Florida Statutes (1979) reads:

As provided by the Florida Constitution, the homestead shall not be subject to devise if the owner is survived by a spouse or minor child, except that the homestead may be devised to the owner’s spouse if there is no minor child. (Emphasis added.)

Finally, he points to Section 222.19, Florida Statutes (1978), which states that the purpose of the homestead provisions of the Constitution “is to shelter the family and the surviving spouse, and such purpose shall be carried out in a liberal spirit in favor of those entitled to the exemption.”

Notwithstanding the sympathetic appeal of appellant’s position, especially in light of the fact that he faces the loss of his family home, we decline to adopt his proposed construction of Article X, Section 4(c).

“A home is not necessarily a homestead, even though it is occupied as a residence and even though the person so occupying it is the owner.” Estate of Van Meter, supra, at 641. In order for a surviving spouse to acquire homestead realty under the Florida Constitution, a husband and wife relationship must have existed at the time of the owning spouse’s death and the property must have been occupied at the time of the owner’s death by the family of which he or she was head. Weitzner v. U.S., 309 F.2d 45 (5th Cir. 1962), cert. denied, 372 U.S. 913, 83 S.Ct. 727, 9 L.Ed.2d 720. The key ingredient for the establishment of homestead property is that the resident owner must be the head of a family. A family relationship, for homestead purposes, is met by: (1) a legal duty to maintain arising out of the family relationship and/or (2) a continuing communal living by at least two individuals under such circumstances that one is regarded as the person in charge. Cory v. Parks, 386 So.2d 292 (Fla. 2d DCA 1980); Beck v. Wylie, 60 So.2d 190 (Fla.1952). The homestead provision of the Constitution was designed to protect those persons whom the decedent had a legal duty to support, arising out of a family relationship. Estate of Deem v. Shinn, 297 So.2d 611 (Fla. 4th DCA 1974). In the present case, appellant’s deceased spouse had no legal duty to support appellant since it was established that he was the head of the family. Thus, based upon the long established judicial construction of the homestead provisions, there is no need to impose the homestead protections to invalidate the deceased’s testamentary disposition of the property and we therefore affirm the order denying appellant’s claim of homestead.

However, pursuant to Rule 9.030(a)(2)(A)(v), Florida Rules of Appellate Procedure, we certify the following question to be of great public importance:

Whether the prohibition against the devise of homestead property contained in Article X, Section 4(c) of the Florida Constitution applies only to situations where the deceased owner, who is survived by a spouse, is the head of the family? AFFIRMED.

McCORD, J., and WOODIE A. LILES (Ret.), Associate Judge, concur.


text:
    PHILLIPS PETROLEUM, Appellant, v. Josiane WYATT, Appellee.
    No. YY-427.
    District Court of Appeal of Florida, First District.
    Oct. 22, 1981.
    Richard H. Gaunt, Jr., West Palm Beach, for appellant.
    Peter S. Schwedock of Pelzner, Schwe-dock, Finkelstein & Klausner, Miami, for appellee.
   PER CURIAM.

Employer/carrier appeal a workers’ compensation order which we affirm except as to the determination of claimant’s compensation rate and the finding that claimant is entitled to an award of attorney’s fees. Claimant has conceded error as to these issues, agreeing that an award of attorney’s fees is inappropriate and that the proper compensation rate is $95.77 per week; the order appealed is hereby amended in accordance with these concessions, and affirmed as amended.

ERVIN, WENTWORTH and JOANOS, JJ., concur.


text:
    STATE of Florida, Appellant, v. Jimmy Leroy OWENS, Appellee.
    No. ZZ-312.
    District Court of Appeal of Florida, First District.
    Oct. 22, 1981.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellant.
    James A. Johnston, Pensacola, for appel-lee.
   PER CURIAM.

AFFIRMED. Plummer v. State, 365 So.2d 1102 (Fla.1st DCA 1979); Fullard v. State, 352 So.2d 1271 (Fla.1st DCA 1977), disapproved on other grounds, Brown v. State, 376 So.2d 382 (Fla.1979).

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


text:
    PENSACOLA INN LIMITED, Fanning Realty, Inc., and Clifford E. Fanning, Appellants, v. Robert H. TUTHILL, Appellee.
    No. AB-459.
    District Court of Appeal of Florida, First District.
    Oct. 22, 1981.
    Rehearing Denied Nov. 13, 1981.

      Robert P. Gaines of Beggs & Lane, Pensacola, for appellants.
    Wilmer H. Mitchell, Pensacola, for appel-lee.
   PER CURIAM.

Appellants seek reversal of a final judgment awarding damages to appellee, appellants’ motel guest, for injuries sustained when he fell on the motel premises. We conclude that a jury issue was presented as to whether appellants were negligent in failing to maintain the premises in a reasonably safe condition, and whether the condition complained of was the legal cause of appellee’s injuries. However, we determine that it was reversible error to allow appellee to introduce photographs of the accident scene showing material alterations and improvements made by appellants after the accident. We therefore reverse.

On the morning of the accident, appellee left his ground floor motel room, turned to his right, and walked along a concrete walkway abutting the motel rooms. He passed a stairwell which obstructed his view of the parking lot to his left, then turned to the left, stepped off the walkway and immediately fell when his left foot slipped on the ground surface which was composed of clay a few inches below the walkway level and sloping at an angle of twenty-five to thirty degrees toward the parking lot pavement. He observed that this compacted clay surface was somewhat moist, as from the morning dew. It was conceded at trial that at the time of the accident he was attempting to traverse an area intended for the use of motel guests.

Appellee introduced, over objection, seven composite exhibits consisting of three photographs each, making a total of twenty-one photographs of the accident scene. These photographs almost without exception concentrate on the exact point where appellee stepped off the walkway, slipped and fell, and show with great clarity improvements made by appellants some four or five days following the accident, consisting of removal of the sloping clay or dirt fill abutting the walkway, replacing this with grassy sod, and the placing of round concrete stepping stones at the exact point where appellee stepped off the walkway.

The general rule, with some exceptions, as stated in City of Niceville v. Hardy, 160 So.2d 535 (Fla. 1st DCA 1964), cert. den. 166 So.2d 150, is that evidence of a change in conditions or proof of repairs made after an injury is never admissible as proof of the defendant’s negligence in not having made the repairs or taken precautions prior to the accident. In that case a new trial was ordered because the court allowed testimony concerning post-accident changes in the meter box over which plaintiff tripped.

The rule is found in the Florida Evidence Code, Section 90.407:

Subsequent remedial measures. — Evidence of measures taken after an event, which measures if taken before it occurred would have made the event less likely to occur, is not admissible to prove negligence or culpable conduct in connection with the event.

Appellee concedes the above rule but seeks to avoid its application here by contending that evidence of subsequent repairs or improvements is nevertheless admissible if submitted not for the purpose of showing negligence by the fact of changes, but to show feasibility of desirable changes, control of the premises, prior knowledge of the offending condition, explanation or identification, to rebut a defense, and for impeachment. See 170 ALR 7 and 64 ALR2d 1296. Whether all or some of these might furnish adequate reasons for admissibility of photographs showing changed conditions is beside the point, since the photographs were not introduced in connection with any testimony as to feasibility, control, or prior knowledge, and no issue was made as to these matters at the trial. Further since the photographs were introduced in appellee’s case in chief they could not have been admissible for impeachment. We note particularly ap-pellee’s insistence that in the court below it was not contended that the changes were evidence of negligence. Appellee argues, however, that the photographs were admissible to show the physical scene, to provide a clear understanding of the lay-out of the area where the accident occurred, and the degree of obstruction to appellee’s visibility caused by the exterior stairwell and an end wall as he approached the step-off where he was injured. Appellee relies upon Atlantic Coastline R. Co. v. Saffold, 130 Fla. 598, 178 So. 288 (1938), First Federal Savings and Loan Ass’n. v. Wylie, 46 So.2d 396 (Fla.1950), and Musleh v. Division of Administration, 299 So.2d 101 (Fla. 1st DCA 1974). These cases simply stand for the general proposition that photographic evidence which is relevant for some legitimate purpose does not become inadmissible in every instance simply because the photographs may depict some post-accident change in the scene surrounding the site of an accident. Here, although several of the photographs show the location of the accident in relation to various portions of the motel premises, none purport to show the accident scene or the approaches to it as it would have been viewed by appellee on the morning in question, and there is nothing in any photograph to show an obstruction to appel-lee’s visibility at the point where he stepped from the concrete walkway. Furthermore, there is nothing either unique or unusual in the physical layout of the motel and its appurtenant walkways and parking area, nor, for that matter, the place where appel-lee fell, that would necessitate use of the photographs for explanatory purposes or that would confer probative value to the photographs outweighing the danger of unfair prejudice and their tendency to mislead the jury. Section 90.403, Florida Evidence Code, provides that relevant evidence is “inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” The potential for prejudice created by twenty-one photographs depicting basically nothing more than an accident scene in which the alleged injury-causing conditions have been totally changed is perhaps illustrated by appellee’s insistence that all changes were pointed out to the jury, and that this was “repeatedly and fairly done” at the trial.

We do not view the rule of exclusion as avoided by the fact that appellants had planned and had contracted for the improvements shown by the photographs some thirty to forty-five days before appellee’s accident. Since evidence of appellants’ intention to improve the area for beautification purposes was admitted at the trial without objection, after the admissibility of the photographs had been ruled upon, we are not called upon to determine whether or to what extent evidence of appellants’ pre-accident ordering of the improvements will be admissible on. retrial of this case.

REVERSED and REMANDED for new trial.

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


author: THOMPSON, Judge.

text:
    Douglas McArthur ROWE, Appellant, v. STATE of Florida, Appellee.
    No. WW-161.
    District Court of Appeal of Florida, First District.
    Oct. 23, 1981.
    James L. Harrison, Jacksonville, for appellant.
    Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   THOMPSON, Judge.

On this appeal from a conviction for first degree murder, the appellant argues that the trial court committed reversible error by denying his motion for severance. We agree and reverse.

In late 1979, a grand jury indicted the appellant and one other person, charging them with the murder of Elijah Rowe. The appellant and his co-defendant were scheduled to be tried together. Well before trial, the appellant filed a motion for severance, alleging that “such severance [was] necessary to promote a fair determination of [his] guilt or innocence.” At a hearing pertaining to this motion, his defense counsel argued that the defenses for the appellant and his co-defendant were antagonistic, and that unless the motion for severance was granted, “the defendants are going to be in the posture of prosecuting each other with the State standing by.”

The trial court denied the motion for severance, and the appellant and his co-defendant were tried together. At trial, each denied responsibility for the murder, and both introduced evidence to support their respective theories of innocence. In this regard, defense counsel for the appellant’s co-defendant accused the appellant of being solely responsible for causing the death of the murder victim. Evidence was introduced by the co-defendant in an attempt to support this theory.

“Granting or denying a motion for severance is normally a discretionary matter for the trial court.” Crum v. State, 398 So.2d 810, 811 (Fla.1981). In this case, we have determined, based upon Crum, that the trial court abused its discretion by denying the motion for severance.

In Crum, the appellant and his co-defendant were indicted and tried together for first degree murder. The appellant moved for severance, alleging that his defense and that of his co-defendant were so antagonistic as to warrant a severance. The appellant represented that he had learned that his codefendant “would accuse him of singularly committing the murder for which the two of them were charged.” 398 So.2d at 811. The trial court denied the motion for severance, and the supreme court reversed, stating that “[b]y denying the motion, the trial court forced [the appellant] to stand trial before two accusers: the State and his codefendant.” 398 So.2d at 811-12.

Here, just as in Crum, the appellant was accused by his co-defendant of being solely responsible for the murder. The trial court was aware that this accusation would be made at trial, and just as in Crum, the co-defendant in the present case not only accused the appellant of the murder, “but also, during the trial, introduced evidence to prove [t]his accusation.” 398 So.2d at 812. Given these factors, the court improperly forced the appellant “to stand trial before two accusers: the State and his codefend-ant.” Id. at 811-812.

The appellant’s conviction is reversed and this cause is remanded for a new trial. In view of this holding, we do not address the other issues raised by the appellant.

ROBERT P. SMITH, Jr., C.J., and JOA-NOS, J., concur.


author: OTT, Judge.

text:
    Lenwood PATTMON, Appellant, v. STATE of Florida, Appellee.
    No. 80-931.
    District Court of Appeal of Florida, Second District.
    Oct. 23, 1981.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Appellant was convicted of a charge of escape and sentenced to 15 years in prison. He was at that time on parole from a sentence on another crime. The new 15-year sentence specified that it was “to commence after any parole violation sentence that might be imposed.”

The quoted language was surplus-age. Unless the court specifically directed otherwise, the new sentence would as a matter of law be consecutive to any other sentence for an offense that was the subject of a separate indictment, information, or affidavit. § 921.16, Fla.Stat.

As constituted, the new sentence is impermissibly uncertain as to commencement. Keel v. State, 321 So.2d 86 (Fla. 2d DCA 1975). We therefore cure the deficiency by striking the surplusage. Teffeteller v. State, 396 So.2d 1171 (Fla. 5th DCA 1981).

The judgment of conviction and the sentence, as amended, are AFFIRMED.

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


text:
    The SCHOOL BOARD OF PINELLAS COUNTY, Florida, Appellant, v. The PINELLAS COUNTY COMMISSION and Metric Constructors, Inc., Appellees.
    No. 80-2107.
    District Court of Appeal of Florida, Second District.
    Oct. 23, 1981.
    B. Edwin Johnson, Gen. Counsel, Clear-water, for appellant.
    John .T. Allen, Jr. of John T. Allen, Jr., P.A., St. Petersburg, for appellee The Pinel-las County Commission.
   PER CURIAM.

We affirm on the sole basis that Section 235.26(1), Florida Statutes (1979) does not exempt a school board from payment of water or sewage impact or connection fees. We cannot consider the issues concerning the validity of the resolutions imposing water and sewer impact fees by appellee Pinellas County Commission, since appellant raised these issues for the first time in its motion for rehearing in the trial court. See Lipe v. City of Miami, 141 So.2d 738 (Fla.1962); Buchanan v. Gulf Life Insurance Co., 286 So.2d 223 (Fla. 1st DCA 1973).

AFFIRMED.

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


text:
    MIDFLORIDA SCHOOLS FEDERAL CREDIT UNION, Appellant, v. Robert Wesley FANSLER, as personal representative of the Estate of Thelma H. Fansler, Deceased, Appellee.
    No. 81-53.
    District Court of Appeal of Florida, Second District.
    Oct. 23, 1981.

      Philip O. Allen of DeVane, Munson, Anderson & Allen, Lakeland, for appellant.
    Wallace L. Storey, Bartow, for appellee.
   PER CURIAM.

This is an appeal from the trial court's dismissal with prejudice of appellant’s second amended complaint for failure to state a cause of action.

. Appellant Midflorida Schools Federal Credit Union filed a claim in the estate of Thelma H. Fansler, deceased, for monies loaned to her on the basis of an open-end credit agreement which was attached to the claim. Appellee objected to the claim and appellant filed its complaint, followed by an amended complaint, and alleged that Thelma H. Fansler, deceased, had entered into the open-end credit agreement with the Polk County Teacher’s Credit Union through which she borrowed the maximum of $3,500. The rights of the alleged agreement were then assigned to appellant. As evidence of the debt, appellant attached to its complaint and amended complaint the document entitled a “Revolving Credit Plan, Application, Agreement, Note and Truth-in-lending Disclosure.” Appellee, Fansler’s personal representative, moved to dismiss the amended complaint for failure to state a cause of action, specifically arguing that the exhibit attached was incomplete, vague, non-negotiable, and without a sufficient promise to pay. The trial court dismissed the amended complaint with ■ leave to amend. Thereafter, appellant filed its second amended complaint, attaching the same exhibit and alleging a series of loans to the deceased pursuant to the agreement up to the maximum of $3,500, and that the deceased was then indebted to appellant in the amount of $3,359.88. Upon appellee’s motions to strike and dismiss, the trial court struck count I and dismissed counts II and III of the second amended complaint.

The court’s basis for striking count I was that it had previously been ruled upon on a prior motion to dismiss. We find that to have been error for the same reasons we discuss regarding the dismissal of counts II and III. It dismissed counts II and III on the basis that they alleged a series of loans or future advances that were not specifically set forth in the agreement attached ánd that since they were outside the attached agreement they were also then beyond the scope of the claim filed in the estate and did not comply with section 733.703, Florida Statutes (1979). We cannot accept that construction of the agreement attached or section 733.703. The agreement specifically provided for future advances to the deceased upon her application up to a maximum of $3,500. It also contained a scale which set forth the minimum monthly payments required for the amount of the maximum outstanding loan at any time and provided that the deceased promised to pay the minimum monthly amounts on the tenth day of each month. Because the documents, if any, which represented the future advances were not attached to the claim filed in the estate nor to the various complaints does not cause any of them to be defective so long as the basic agreement was attached and pled. Section 733.703, Florida Statutes, provides that a creditor shall file a statement of claim “indicating its has/s” (emphasis added). Section 733.-704, Florida Statutes, further provides that when a bona fide attempt to file a claim is made, but the claim is defective, the court may permit the amendment of the claim at any time.

The court further grounded its dismissal of counts II and III on the basis that they were barred by the statute of limitations inasmuch as the basic document did not set forth with particularity the future advances and therefore such future advances were oral transactions. Again, we cannot agree. The written agreement specifically includes a provision for future advances and a promise to pay them.

Cases are generally to be tried on their proofs rather than the pleadings and there is insufficient justification for granting a motion to dismiss a complaint for failure to state a claim unless the allegations in the pleading attacked show with certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of the claim. See Kaufman v. A-1 Bus Lines, Inc., 363 So.2d 61 (Fla. 3d DCA 1978). When reviewing an order for involuntary dismissal, the test to be applied is whether the complaint, construed in the light most favorable to the plaintiff, is sufficient to constitute a valid claim. See Fidelity & Casualty Co. of New York v. L.F.E. Corp., 382 So.2d 363, 367 (Fla. 2d DCA 1980).

We believe that the document attached to appellant’s complaint was sufficient to state a cause of action for pleading purposes because it includes a promise to pay, a due date and the amount of minimum payments due. Therefore, the trial court erred in dismissing appellant’s second amended complaint and we reverse.

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


author: SCHEB, Chief Judge.

text:
    STATE of Florida, Appellant, v. Richard H. JAMES, Appellee.
    No. 81-425.
    District Court of Appeal of Florida, Second District.
    Oct. 23, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellee.
   SCHEB, Chief Judge.

The state appeals from an order granting the defendant’s motion to suppress evidence concerning contraband which had been destroyed by the sheriff’s department. We reverse.

The state filed an information charging the defendant, Richard H. James, with possession of marijuana. In response to his demand for discovery, the state informed him that, he could test the alleged contraband. His counsel then deposed the state’s chemist concerning the chain of custody and analysis of the contraband, but did not ask to conduct any tests. Trial was set for November 7,1978, at which time the state’s chemist appeared and brought the contraband. The defendant, however, had escaped. He was arrested two years later and trial was reset. Prior to trial, the state learned that the contraband had been destroyed by the sheriff’s department as part of its routine procedure for destroying contraband in older cases. The state immediately informed the defendant who then moved to suppress the evidence of contraband. The court granted the motion and this appeal ensued.

Where the destruction of evidence is unnecessary and is not an unavoidable result of the testing process, introduction of testimony concerning the evidence may violate a defendant’s due process rights. For example, where a state’s chemist intentionally destroyed a substance alleged to be cocaine after the defendant had filed a timely notice to produce and the trial court denied the defendant’s motion to suppress, the appellate court overturned the defendant’s conviction. Stipp v. State, 371 So.2d 712 (Fla. 4th DCA 1979). However, to be entitled to relief, a defendant generally must show that the destruction of evidence resulted in some demonstrable prejudice to him. See, e. g., United States v. Herndon, 536 F.2d 1027 (5th Cir. 1976); State v. Snell, 391 So.2d 299 (Fla. 5th DCA 1980); Adams v. State, 367 So.2d 635 (Fla.2d DCA 1979); Farrell v. State, 317 So.2d 142 (Fla. 1st DCA 1975). In Herndon the government seized and destroyed illegal moonshine whiskey before trial. The trial court found that the defendant failed to establish that he had been prejudiced by the evidence’s destruction. There, the court noted that the defendant had made his first demand for the physical evidence in the middle of the trial, some ten months after his indictment. Moreover, defense counsel had stated that he did not file a motion to obtain a sample of the whiskey mash because he preferred merely to cross-examine the expert witness as to his analysis.

Herndon is analogous to the situation in the instant case. Here, defense counsel also had the opportunity, prior to the initial trial date, to test the alleged contraband and failed to do so. Instead, he chose to cross-examine the state’s chemist concerning his analysis. Moreover, the defendant by his escape delayed the trial for two years by which time the sheriff’s department, as part of its routine procedure, had destroyed the evidence. It was only after the case had been reset for trial and defense counsel knew of the destruction of the contraband that he requested production of that evidence. While mere delay of a trial would not ordinarily excuse the destruction of crucial evidence, the fact that defense counsel had ample opportunity to test the contraband, combined with the delay unlawfully caused by the defendant, demonstrate that the defendant was not prejudiced by the destruction of the evidence.

We reverse and remand for further proceedings consistent with this opinion.

GRIMES and CAMPBELL, JJ., concur.


author: GRIMES, Judge.

text:
    James G. MARSHALL, Appellant, v. Evelyn J. MARSHALL, Appellee.
    No. 81-796.
    District Court of Appeal of Florida, Second District.
    Oct. 23, 1981.

      Preston DeVilbiss, Jr., of Adams, DeVil-biss, Vorbeck & Wood, Sarasota, for appellant.
    L. Norman Vaughan-Birch of Kirk, Pinkerton, Savary, Carr & Strode, P. A., Sarasota, for appellee.
   GRIMES, Judge.

Appellant attacks the jurisdiction of the court which awarded a temporary change in custody of his minor child.

The parties divorced in Alachua County, and appellee received custody of the minor child. Thereafter, custody of the child was changed to appellant, but appellee is now seeking to regain custody. Since appellant and the child live in Sarasota County, and appellee has moved to Manatee County, she filed the petition for modification in Sarasota County. The court held a hearing shortly after the filing of the petition and then entered the order temporarily changing custody to her. We have jurisdiction to hear this appeal pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii).

Appellant contends that the Sarasota County Circuit Court lacked jurisdiction to consider the petition for change of custody. He is clearly correct. Wells v. Ward, 314 So.2d 138 (Fla.1975); Bailey v. Malone, 389 So.2d 348 (Fla. 1st DCA 1980); Poliak v. Poliak, 235 So.2d 512 (Fla. 2d DCA 1970). Section 61.14, Florida Statutes (1979), which permits the parties to a dissolution to apply for modification of alimony or support in the county in which either of them resides, omits any reference to changes of custody. There is simply no authority for appellee to seek a modification of custody except in the Circuit Court of Alachua County which is the court that had original jurisdiction over the dissolution proceedings.

REVERSED.

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


author: McCORD, Judge.

text:
    Robert STONE, Appellant, v. A & G PLASTERING and State Auto Mutual Insurance Company, Appellees.
    No. XX-439.
    District Court of Appeal of Florida, First District.
    Oct. 28, 1981.

      Scott V. Berglund of Abrams & Suskin, North Miami Beach, for appellant.
    C. Randal Morcroft, Fort Lauderdale, for appellees.
   McCORD, Judge.

Stone, a construction worker who was injured on the job, appeals a worker’s compensation order in which the deputy commissioner denied Stone’s claim for temporary total disability, established a date of maximum medical improvement, rejected a request for payment of past and future medical care by the treating physician and determined that temporary disability benefits should be discounted on the ground that Stone could earn $100 per week if only he had accepted, or would accept, employment.

We reverse the finding of MMI because at the final hearing the parties stipulated that maximum improvement had not been reached. The date of MMI was not at issue. See Lopez v. Par Mell Apartments, et al, IRC Order No. 2-3859 (July 12,1979); Principe v. Mt. Sinai Hospital, 156 So.2d 385 (Fla. 1963). The evidence of maximum medical improvement was equivocal; the evidence and the stipulation were not “at variance in such a way as to show good cause for modification of the stipulation.” Delta Drilling Co., et al v. Wells, IRC Order No. 2-3708 (Feb. 22, 1979). Therefore, it was error for the deputy to find Stone had reached MMI prior to the date of the hearing at which the stipulation was reaffirmed.

We must also reverse the finding that Stone “would be able to earn $100.00 per week if he accepted, or had accepted, appropriate employment.” There is no record support to justify that figure, although the record contains evidence from which the deputy might conclude Stone is employable. Upon remand, the deputy may accept additional evidence on this point.

The deputy properly denied payment for medical care received by Stone after the carrier withdrew its authorization of the doctor and offered Stone a choice of other medical treatment. Carlton Arms of Winter Park, et al v. Polston, IRC Order No. 2-3725 (Feb. 28, 1979).

Accordingly, this cause is remanded to the deputy for further proceedings not inconsistent with this opinion.

SHIVERS, J., and LILES, WOODIE A. (Retired), Associate Judge, concur.


author: PER CURIAM. HURLEY, Judge,

text:
    Michael Dewayne KEMPER a/k/a Michael Dewayne Culala, Appellant, v. STATE of Florida, Appellee.
    No. 79-2490.
    District Court of Appeal of Florida, Fourth District.
    Oct. 28, 1981.

      Richard L. Jorandby, Public Defender, and Jon May and Cherry Grant, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   OPINION ON REHEARING

PER CURIAM.

In our opinion of September 2, 1981, we reversed this case for a new trial on the authority of Tascano v. State, 393 So.2d 540 (Fla.1980). Upon reconsideration we are of the view that the error of the trial court in refusing to instruct the jury as to the potential penalties for the primary offense charged was harmless. The appellant requested only an instruction on penalties for the main offense charged. He was convicted of a lesser offense. Under the circumstances we believe the error was harmless. Lewis v. State, 399 So.2d 473 (Fla. 4th DCA 1981). As in Lewis, we recognize that the law is not entirely clear as to the extent that the harmless error rule may be applied to Tascano type errors, and for the reasons expressed in Lewis, we certify the following as a question of great public importance:

May an appellate court find that the failure of the trial court to instruct the jury pursuant to the provisions of Rule 3.390(a) of the Florida Rules of Criminal Procedure constitutes harmless error?

Accordingly, our opinion of September 2, 1981, is hereby withdrawn and we affirm the judgment of the trial court.

ANSTEAD and HERSEY, JJ., concur.

HURLEY, J., concurs specially with opinion.

HURLEY, Judge,

concurring specially.

Upon reconsideration it is my view that appellant failed to preserve the alleged Tas-ca no error for appellate review. Rule 3.390(d), Fla.R.Crim.P., explicitly requires that a party must state “distinctly the matter to which he objects, and the grounds of his objection.” (Emphasis supplied.) Appellant failed to enunciate any grounds whatsoever as the basis for his objection and, consequently, the matter has not been preserved for our consideration. See, Castor v. State, 365 So.2d 701 (Fla.1978).

      . Compare Murray v. State, 403 So.2d 417 (Fla.1981) with Welty v. State, 402 So.2d 1159 (Fla.1981).


author:
BLANCHE, Justice.
     LEMMON, Justice, REDMANN, Justice Pro Tem.,

text:
    STATE of Louisiana v. Edward Charles MORRIS.
    No. 80-KA-2873.
    Supreme Court of Louisiana.
    Sept. 8, 1981.
    Rehearing Denied Oct. 9, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Dist. Atty., Evelyn Oubre, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
    James Miguez & Carl A. Leckband, Jr., Lake Charles, for defendant-appellant.
   BLANCHE, Justice.

The defendant was indicted by the Calca-sieu Parish Grand Jury on a charge of second degree murder in connection with the shooting death of Martin D. Wilson. R.S. 14:30.1. The defendant was tried by jury and found guilty of manslaughter. R.S. 14:31. His motion for a new trial was denied, whereupon the defendant was sentenced to serve eighteen years.

FACTS

Martin D. Wilson was shot in the head on October 17, 1979 and died three days later. The defendant and the victim were guests in the house of Arnet Pradia, who testified that the two men were alone in her kitchen when she heard a “pow”. She went into the kitchen and found Wilson on the floor with a gunshot wound in his forehead. The back door was open, the defendant having left. No weapon was found on the scene by the police, nor was one ever discovered that could be traced to the shooting.

At trial, two police officers testified concerning the arrest of the defendant. Both stated that the defendant surrendered when they knocked on the door of the motel room occupied by himself and one Gloria Williams. When they asked him what had happened, Morris remarked that he had to do it, and that the officers would have done it too. The officers then recounted that the defendant had added something to the effect that someone had been “messing” with his son.

The defendant’s version of the incident stressed the violent propensities of the victim. He testified that the victim was constantly harassing him and that he had knowledge that his son had been assaulted. Several witnesses testified that the victim, who was known to carry a gun, had threatened Morris with death and one testified that the victim, while armed with a pistol, had assaulted and struck the defendant’s son Stafford. The defendant testified that the shooting occurred when the victim produced a pistol and the defendant rushed him, causing the pistol to point upward. Defendant claimed that the gun discharged as the victim was looking down, striking him in the forehead. The defendant recalled fleeing, but could not remember anything further concerning the gun involved. Concerning his statement to the police officers, he admitted telling them that he had to do it and that they would have done it also, but he denied stating the victim had been interfering with his son.

Assignments of Error Numbers 1 and 3

By these assignments, the defendant contends that the trial court erred in failing to declare a mistrial, give a proper admonition to the jury or grant a new trial resulting from an allegedly prejudicial question propounded to the defendant by the prosecutor.

The state perceived that the defendant was partially attempting to justify the shooting through testimony that his son was afraid of the victim. In order to impeach this defense strategy, the prosecutor asked Morris the following questions during cross-examination:

“Q. Okay. Now, then your son had some problems with him. Now, your son was very scared of him, too, wasn’t he?
A. (No audible response.)
Q. Stafford?
A. He had to be scared of him, because he was only a juvenile, and he didn’t know what the guy was attacking him for, and the reason why he was looking for me was to kill me.
Q. Okay. Now, where is Stafford now?
A. I don’t know; I’ve been in jail, Ma’am.
Q. You don’t know that he’s in Florida with a . . . imprisoned for 75 years for executing a police officer?”

Defense counsel immediately objected, and a lengthy argument, outside the jury’s presence, revealed that the prosecutor had received this information from “two police officers and one women.” Defendant’s counsel argued that no policeman was in fact injured in the crime, which was an armed robbery where a man was shot by his assailants, but did not die. The prosecutor countered this by insisting that “Sergeant Welch, and I think it was Sergeant Holland, and/or Taylor,” had informed her that “it was an execution-type slaying”.

The trial judge, although noting that the question was irrelevant and immaterial but potentially prejudicial, declined to grant a mistrial. The defense counsel noted an objection and requested the court to admonish the jury that the prosecutor’s statement was incorrect, and false. The state argued that the court could not instruct the jury that it was a lie because there was no investigation to establish that but, instead, should just tell the jury to disregard the remark. The trial judge admonished the jury to put the question away from its mind and treat it as if never asked. He again reiterated that the jury was not to consider it in any way during its deliberation. The defendant objected to the admonition, claiming it was inadequate.

At the defendant’s motion for a new trial, the defendant reasserted that a mistrial was required and brought forth evidence to shown the prosecutor’s statement was, indeed, a lie. He called the prosecutor to testify and she again stated that she had been told by some police officers, either Welch, Taylor, Holland or Landry, that the defendant’s son had executed a policeman in Florida. The defendant called Officers Welch, Holland and Taylor who each stated that to their knowledge, that they had never told the prosecutor that a police officer had been executed. Holland expressed his belief that the man injured was a bank guard at a savings and loan. Taylor confirmed this, adding that he was not even sure if anyone had died. This evidentiary hearing revealed that these officers believed that the defendant’s son was serving time in Florida on charges of armed robbery and attempted murder. These officers admitted that they had spoken to the prosecutor prior to defendant’s trial, although they insisted that they did not tell her that the defendant’s son had executed a cop.

It appears, therefore, that the prosecutor’s trial question to defendant had asserted facts which were untrue, although possibly founded upon a legitimate misunderstanding of her conversations with these officers. However, the defendant’s objection challenges not only the inaccuracy of the prosecutor’s statement, but also the lack of relevancy of the prejudicial subject matter raised thereby and the state’s use of the questioning format to introduce what amounted to testimony by the prosecutor.

The trial court’s refusal to grant the requested mistrial was based upon the accurate conclusion that the prosecutor’s statement did not fall within the scope of C.Cr.P. art. 770.

The defendant, however, argues that the prosecutor’s statement was so prejudicial that a mistrial was appropriate under C.Cr.P. art. 771, which reads, in pertinent part:

“In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
“(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770;
******
“In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.”

Necessarily, the defendant maintains that the admonition given could not sufficiently counteract the prejudice created in the minds of the jurors.

Initially it must be noted that defendant’s son’s possible criminal acts have no relevancy to the contested issues in the present case. The son’s armed robbery and attempted murder were apparently committed some time after the defendant’s alleged act of murder. The prosecutor in fact admitted that her intent was not to show that the defendant’s professed fear for his son’s safety was a fabrication devised after the fact but, rather, that the son, “a man capable of executing a police officer, can’t be so scared as painted by the defendant.” This point is hardly relevant to the issue of the defendant’s guilt, or intent, R.S. 15:441, nor does it even disprove the defendant’s assertion that he feared for his son’s safety. The trial court’s finding that the question was irrelevant, immaterial and prejudicial suggests that such evidence, even if properly presented, would have been ruled inadmissible. Furthermore, the prosecutor’s method of placing this information before the jury was highly improper. In State v. Meshell, 332 So.2d 767, 769 (La. 1976), this Court, quoting an earlier case, observed that:

“It is a grave injustice for a district attorney to propound improper questions, containing prejudicial suggestions or insinuations, without serious intention of having the questions answered, but for the purpose of having the questions make their unfavorable impression and have their prejudicial effect upon the mind of the jury.”

In the Meshell case, the inadmissible evidence presented by the prosecutor’s questioning related to other crimes committed by the defendant. It fell, therefore, within the mandatory proscription of C.Cr.P. art. 770, and this Court was required by that article to reverse and remand for a new trial. In the present case, the prosecutor’s remark referred to other crimes committed by a member of the defendant’s immediate family and did not, therefore, fall within the proscriptions of art. 770. When a question does not require automatic reversal, the general rule regarding reversible error due to improper questioning, where the judge has ruled in a defendant’s favor and admonished the jury to disregard the question, was stated in State v. Burkhalter, 211 La. 342, 30 So.2d 112 (La. 1947). In Burk-halter, this Court ruled that in such a situation, in order to reverse a conviction, it must clearly appear that the matters complained of are of such an extreme prejudical nature that the damage caused could not be erased from the minds of the jurors and that, as a consequence, the defendant was deprived of a fair and impartial trial. See also State v. Hegwood, 345 So.2d 1179 (La. 1977).

We are of the opinion that the question asked by the prosecutor was not sufficiently prejudicial to warrant a reversal over and above the trial judge’s admonition. First, the question did not even impugn the defendant’s character. Second, viewing the evidence in the light most favorable to the prosecution, any rational jury could have found beyond a reasonable doubt that the defendant was guilty of second degree murder. R.S. 14:30.1 See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Morgan, 389 So.2d 364 (La.1980): State v. Harveston, 389 So.2d 63 (La.1980). Defendant admitted the shooting and only disputed the manner and circumstances of its occurrence. The evidence circumstantially indicated that the defendant intentionally shot the victim without provocation. Instead, the jury returned a verdict of manslaughter, which implies that it felt the shooting had occurred intentionally, but in sudden passion or heat of blood caused by provocation. R.S. 14:31. This verdict alone indicates that the jury accepted the defendant’s intimation that the victim was provoking him personally and through his son, and that it disregarded, as instructed, any reference to the son’s character in determining the guilt of the father.

This assignment is without merit.

Assignments of Error Numbers 2 and 3

By these assignments, the defendant argues that the trial court erred in failing to declare a mistrial, or grant defendant’s motion for a new trial, on the ground that the prosecutor made reference in closing argument to a witness who never testified.

The controversy involved the prosecutor’s reference to Gloria Williams, at whose motel room the defendant had been arrested for the instant charge, during closing argument. Earlier during the trial, during the state’s cross examination of the defendant, the prosecutor asked Morris whether he told Ms. Williams anything about the incident. The prosecutor further made reference to a supposed fact that Ms. Williams told police that Morris had made a statement about the incident. Morris denied making any statements to Ms. Williams and the prosecutor dropped the line of questioning.

No other reference to Ms. Williams’ knowledge was made during the trial until defense closing argument. At that time, defense counsel, while attempting to demonstrate the inadequacy of the state’s case by naming witnesses the state could have called but did not, made reference to the earlier questions propounded to the defendant concerning Williams. He then added that the prosecutor talked to Ms. Williams and knew her whereabouts but still failed to bring her in to ask her what was said to her by the defendant. This implied that Ms. Williams’ testimony would not have helped the prosecution and, possibly, that it would have helped the defendant.

The prosecutor, in rebuttal, stated the following:

“[The Prosecutor] .. . Point eight: we could have brought in Gloria Williams. Now, Mr. Chafin will tell you that he looked for Gloria Williams for nine days, went all over the State of Louisiana looking for Gloria Williams, and never found .. .
[Defense counsel]: Your Honor . . .
[The Prosecutor] . . . hide nor hair of her.”

Defense counsel interposed an objection. In response to defendant’s objection the prosecutor added, “Your Honor, the record will show that Gloria Williams was subpoenaed, and she never was served.” The court maintained the objection and instructed the jury to disregard the prosecutor’s remark concerning Ms. Williams.

Argument of counsel is governed by C.Cr.P. art. 774, which provides:

“The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
“The argument shall not appeal to prejudice.
“The state’s rebuttal shall be confined to answering the argument of the defendant.”

If argument goes beyond the scope of this article, it falls within the ambit of arts. 770 and 771, supra. See C.Cr.P. art. 774, comment (c); State v. Lee, 340 So.2d 180 (La. 1976). In order for argument outside the scope of art. 770 to be reversible, this Court must be thoroughly convinced that the jury was influenced by the complained of remarks and that they contributed to the verdict. State v. Bretz, 394 So.2d 245 (La. 1981); State v. Light, 392 So.2d 649 (La. 1980). However, this Court has occasionally given the prosecutor some latitude to use argument outside the scope of art. 774 to refute defense argument of like character. See State v. Duke, 358 So.2d 293 (La. 1978); State v. Wright, 344 So.2d 1014 (La. 1977); State v. Jenkins, 338 So.2d 276 (La. 1976); State v. Strange, 334 So.2d 182 (La. 1976); State v. Lockett, 332 So.2d 443 (La. 1976). Compare State v. Hamilton, 356 So.2d 1360 (La. 1978).

In the present case, defense counsel referred to Ms. Williams in order to demonstrate the lack of evidence against his client and thereby create reasonable doubt in the minds of the jurors. But the argument did not end there. Counsel asserted that the prosecutor had talked to Williams and knew her whereabouts but nevertheless failed to bring Williams in as a trial witness. While the reference to the prosecutor interviewing Ms. Williams might be a proper inference to be drawn from the prosecutor’s earlier questioning of the defendant, the testimony does not support the assertion that the prosecutor knew her whereabouts but failed to call her as a witness. The inference to be drawn from the unsupported argument did more than just imply that the prosecution had not met its burden of proof. It implied that the prosecution had evidence available to it that it was hiding from the jury, possibly due to its exculpatory nature.

The prosecutor, in rebuttal, attempted to refute the claim of availability by asserting that the state had been unable to subpoena Ms. Williams to testify notwithstanding a diligent attempt to do so. Thus, the prosecutor did nothing more than use an assertion not supported by the trial testimony to refute a like assertion made by the defendant. While we expressly disapprove of the actions of both the prosecutor and defense counsel and feel that the problem would best have been settled via a prosecu-torial objection during defense argument, we note that the complained of argument does not fall within the scope of that which is proscribed by C.Cr.P. art. 770, N.l, supra. Under the circumstances, since defense counsel initially made an assertion outside the record, we conclude that the state was also entitled to so refute it in rebuttal. See State v. Wright, supra. Furthermore, if any prejudice occurred, it was sufficiently cured by the trial judge’s admonition to the jury that it was to attach no significance to the prosecutor’s reference to Ms. Williams.

This assignment is without merit.

For the foregoing reasons, we affirm defendant’s conviction and sentence.

AFFIRMED.

DENNIS, J., concurs with reason.

LEMMON, J., dissents and assigns reasons.

REDMANN, J., pro tern., dissents with reasons.

CALOGERO, J., dissents for reasons assigned by LEMMON, J.

LEMMON, Justice,

dissenting.

The grossly prejudicial “question” by the prosecutor was irrelevant (and also inaccurate) and constituted an implied assertion that simply could not be erased from the minds of the jurors by an instruction to disregard. Defendant could not thereafter receive a fair trial before this tainted jury.

This court’s approval of such tactics simply encourages future use of hearsay and irrelevant statements, in the guise of question's, to suggest guilt by association.

REDMANN, Justice Pro Tem.,

dissenting.

This Court is unconstitutionally constituted and an accused is denied due process of law by his or her case’s being referred to it instead of to the Louisiana Supreme Court as constituted by La. Const. Art. 5 §§ 1, 3, and 4, to which this Court should order this case referred.

See the writer’s dissent, State v. Petter-way, La. 1981, 403 So.2d 1157, 1161.

       Judges William V. Redmann and Thomas J. Kliebert of the Fourth Circuit Court of Appeal, and Judge Cecil C. Cutrer of the Third Circuit Court of Appeal participated in this decision as Associate Justices Ad Hoc joined by Associate Justices Calogero, Dennis, Blanche and Lem-mon.

      . Although the prosecutor made reference to another crime, it was not committed or allegedly committed by the defendant.
      “Art. 770. Prejudicial remarks; basis of mistrial.
      “Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official during the trial or in argument, refers directly or indirectly to:
      “(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
      “(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissable;

        “(3) The failure of the defendant to testify in his own defense; or
      “(4) The refusal of the judge to direct a verdict.”

      . State v. Frazier, 165 La. 758, 765, 116 So. 176, 178 (1928).

      . The implied assertion was that defendant’s son was serving a prison term in Florida for executing a police officer.

      . The prosecutor admitted that she asked the “question” (characterized by the trial judge as “highly objectionable”) for the purpose of discrediting defendant’s family.