text:
    Irene Holman JOLLY v. STATE.
    8 Div. 424.
    Court of Criminal Appeals of Alabama.
    March 17, 1981.

      Glenn F. Manning of Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Judge.

On March 9, 1979, fourteen year old Pamela Allegood was killed when the automobile in which she was riding was “rear-ended” by the automobile driven by the defendant. As a result, the defendant was indicted for first degree murder. A jury convicted her of murder in the second degree and fixed punishment at ten years’ imprisonment.

I

The defendant maintains in this Court, as she did at trial, that the evidence is insufficient to establish the offense of murder in the second degree, the crime of which she was convicted, or to establish the lesser included offenses of manslaughter in the first and second degrees.

We need not detail the individual testimony presented by each witness at trial. We have thoroughly studied the evidence and are of the opinion that the following summary is an entirely reasonable interpretation of the evidence.

The collision occurred in Huntsville, Alabama, at the intersection of Mastín Lake Road and Blue Spring Road, between 11:00 and 11:30 on the night of March 9, 1979. The weather was dry and clear. Traffic was very light at the time.

Mastín Lake Road is paved and consists of five lanes where it intersects Blue Spring Road, which is also paved but has only two lanes. At the intersection of the two roads, there are traffic lights. Mastín Lake Road is lit by overhanging street lamps.

Around 11:00 on the evening of the homicide, the defendant purchased two cans of mackerel, a box of aluminum foil and a loaf of bread at the Bargain Land Grocery, which is in the vicinity of Mastín Lake Road. The defendant was a regular customer at the store. The cashier, Marsha Mayes, smelled the odor of alcoholic beverages on the defendant’s person. Ms. Mayes testified that the defendant was intoxicated. The weight of this witness’s opinion that the defendant was drunk or intoxicated is discussed in Part III of this opinion.

Immediately prior to the collision, Mrs. June Childress heard a noise in her front yard located on Mastín Lake Road, about two blocks from Blue Spring Road. She went out on her porch and saw a Buick or Oldsmobile going up the hill toward Blue Spring Road. The car was traveling “real fast” or “pretty fast” and “fighting to keep in the road as it went over the hill.” The car was “wobbling” and “trying to keep straight in the road.” Mrs. Childress heard a “sort of a scrunch or sort of a thud” after the car went over the hill and “thought it might have hit something.”

The evidence indicated that the defendant had driven off the road and traveled through the front of several yards on Mas-tín Lake Road immediately before the collision. A Huntsville police officer described the damage:

“There were two or three front yards that had been torn up, where someone had run through them. There were trees down and there was a utility pole guy-wire that had been torn down. A concrete cover over a drainage (ditch) had been torn up, and there was debris from a car in the yard.”

The identity of the Buick driven by the defendant as being the automobile which actually did the damage to these yards was established by debris from the Buick which was found in the damaged yards.

A Chevette, a very small Chevrolet automobile, was stopped on Mastín Lake Road for a red light where the road intersects Blue Spring Road. Among the four young women who occupied this car was Pamela Allegood, the deceased.

According to the surviving passengers of the Chevette, all of whom were severely injured in the collision, they were driving on Mastín Lake Road, taking Ms. Allegood home after having been shopping. The Chevette stopped at the intersection for a red traffic light. The young women were laughing and talking among themselves. They remembered nothing after that until after the collision.

The initial impact of the large 1973 Buick driven by the defendant against the Che-vette occurred while the Chevette was stopped on Mastín Lake Road. The Che-vette was struck a blow from behind, on the right rear of the car, which sheared off the right side of the automobile. The Chevette was destroyed to such an extent that, in objecting to the admission of a photograph of the automobile, defense counsel cited as one of his grounds the fact that the photograph “tends to or could tend to influence the jury simply because of the extreme damage done to the car.” The defendant was identified as being behind the wheel of the Buick immediately after it came to rest after the collision.

The defendant left the scene of the collision, leaving her automobile. By checking the license plate, the police discovered that the Buick was registered to the defendant’s husband.

The defendant was arrested by the Huntsville Police at her home at 2401 Springfield Road, which is a short distance from the intersection where the collision occurred, at 12:30 A.M. on March 10,1979— approximately one hour after the incident.

After the defendant admitted having been involved in an accident, she was warned of her constitutional rights and placed under arrest. She was then taken to the emergency room of the Huntsville Hospital.

The defendant was not treated at the hospital and was taken to the Huntsville City Jail. After warning the defendant of her constitutional rights, Officer William Dobbs interrogated her. In a statement which we have determined to have been voluntarily and intelligently given (as did the trial judge), the defendant related to Officer Dobbs some of her actions on the afternoon of the collision.

She told him that she had gotten off work at the Elegant Steak Room at 5:00 P.M.; that she met a man whom she didn’t know; that this man was from out of town; that she purchased some beer and that they had gone to the parking lot at the Love-man’s Mall to drink it. The defendant told Officer Dobbs that she had drunk three beers at the mall. At this point in the conversation the defendant “stated that she did not want to talk to (Dobbs) about anything else. She did not want her husband to find out anything.” The defendant was not questioned further. The defendant did not tell Officer Dobbs what time she drank the beer or what time she left the mall.

The defense presented a different version of the accident. James Hollingsworth, the only defense witness, testified that he was driving his automobile on Blue Spring Road. As he approached the intersection of this road with Mastín Lake Road, the traffic light changed from green to yellow and he slowed to stop at the light. At that time, he noticed a Chevette traveling toward him on Blue Spring Road on the other side of the traffic light. When he was about 125 feet from the intersection, he noticed another automobile, which he saw “only a split second” before it collided with the Chevette, traveling on Mastín Lake Road. Ms. Hollingsworth testified that “as the small car came almost directly up under the light, the other car hit it.” According to this witness, the Chevette entered the intersection against a red traffic light, which would have given the “other car” the green light.

In reviewing the sufficiency of circumstantial evidence the test to be applied is “ ‘whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude, (citations omitted).’ ” Dolvin v. State, 391 So.2d 133, 137 (Ala.1980); Cumbo v. State, 368 So.2d 871, 874 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). On review, this Court is required to consider the evidence in the light most favorable for the prosecution. McCord v. State, 373 So.2d 1242 (Ala.Cr. App.1979); Coleman v. State, 37 Ala.App. 406, 69 So.2d 481 (1954). This Court must take the evidence favorable to the prosecution as true, and accord to the State all legitimate inferences therefrom. Johnson v. State, 378 So.2d 1164 (Ala.Cr.App.), cert. quashed, Ex parte Johnson, 378 So.2d 1173 (Ala.1979).

In Commander v. State, 374 So.2d 910 (Ala.Cr.App.), cert. quashed, 374 So.2d 921 (Ala.1978), this Court reviewed the principles involved in a conviction of second degree murder arising out of an automobile accident.

“It is settled that, in appropriate circumstances, a homicide committed by an intoxicated driver of an automobile may constitute murder in the second degree. Hyde v. State, 230 Ala. 243, 160 So. 237 (1935); Langford v. State, 354 So.2d 297 (Ala.Cr.App.), reversed, 354 So.2d 313 (Ala.1977); McGhee v. State, 333 So.2d 865 (Ala.Cr.App.1976); Wright v. State, 41 Ala.App. 684, 49 So.2d 835 (1963); Berness v. State, 38 Ala.App. 1, 83 So.2d 607, affirmed, 263 Ala. 641, 83 So.2d 613 (1953); Williams v. State, 30 Ala.App. 437, 7 So.2d 511 (1942); Reed v. State, 25 Ala.App. 18, 142 So. 441, cert. denied, 225 Ala. 219, 142 So. 442 (1932).
“The argument that the gross negligence or wanton misconduct of the driver of an automobile causing the death of another constitutes either murder in the first degree or manslaughter but not second degree murder was rejected by the Alabama Supreme Court in Reed v. State, 225 Ala. 219, 142 So. 441 (1932) (see dissent of Anderson, C. J.).
“Second degree murder is defined as the unlawful killing of a human being with malice, but without deliberation or premeditation. Miller v. State, 145 Ala. 677, 48 So. 47 (1906). In order to authorize a conviction for murder in the second degree for a homicide caused by the driving of an automobile, the evidence must be sufficient to warrant a finding by the jury that the accused either intentionally caused the collision or that he
‘was conscious of his acts, conscious of the impending danger surrounding him, and of the probable results of his acts, and then with a reckless indifference to the probable consequences of his acts, brought about the collision and death of the deceased.’ Hyde, 230 Ala. at 244, 160 So. at 238.
See also Williams, 30 Ala.App. at 439, 7 So.2d 511.
“A specific intent to kill is not essential to second degree murder. Fowler v. State, 155 Ala. 21, 45 So. 913 (1908); Bailey v. State, 133 Ala. 155, 32 So. 57 (1902); Titus v. State, 117 Ala. 16, 23 So. 77 (1898).
‘It is not necessary that there was an intent to kill to constitute murder in the second degree. It is sufficient if the defendant voluntarily set in motion or applied an unlawful force from which death ensued, however free the action may be from actual purpose to kill.’ Smith v. State, 154 Ala. 31 at 34, 45 So. 626 at 627 (1908).
Nor is it necessary that the defendant should have entertained the intent to do an unlawful act or that he should have his mind fixed upon the unlawful quality of the act he intended to do. ‘It was enough that he intended to do what he did, if that was unlawful.’ Tucker v. State, 202 Ala. 5 at 6, 79 So. 303 at 304 (1918).
“Murder in the second degree includes those cases which are not accompanied with the intent to take life but are committed by gross carelessness.
‘A killing may also be reckless, without evincing a purpose to take the life of any particular human being, and without evincing the degree of depravity shown in the illustrations we have mentioned. There may be no purpose to do mischief, as if one from a house-top recklessly throws down a billet of wood upon the sidewalk, where persons are constantly passing, and it fall upon a person passing by and kill him. Moore v. State, 18 Ala. 532.’ Fields v. State, 52 Ala. 348 at 354 (1975).
“Malice is a necessary element of murder in the second degree and is the factor which distinguishes second degree murder from first degree manslaughter. Roberson v. State, 183 Ala. 43, 62 So. 837 (1913); Smith v. State, 31 Ala.App. 12, 11 So.2d 466, cert. denied, 243 Ala. 627, 11 So.2d 473 (1943). It was a settled principle of common law that where death ensues from an act done without lawful purpose, dangerous to life, malice is implied. Clarke v. State, 117 Ala. 1, 8, 23 So. 671 (1898).
“A second degree murder conviction has been sustained where the evidence indicated that the driver of the automobile was intoxicated or under the influence of whiskey, while traveling at a speed of forty to sixty-five miles per hour on the streets of Birmingham, turned a corner and the car struck and killed the deceased who was walking on the sidewalk, the car having climbed the embankment of the sidewalk which was several feet higher than the street and dragged the deceased some sixty to sixty-five feet. Reed, supra. The evidence was also sufficient to support a conviction for second degree murder where the intoxicated driver of an automobile traveling at a speed of fifty miles per hour ran his car into the rear of two cars traveling in front of him and then pulled or swerved his car across the highway and ran into the automobile driven by the deceased. Williams, supra. In Hyde, supra, the conviction was sustained where the accused, under the influence of whiskey, overtook and passed the car driven by the deceased and ‘without reason or excuse’ whipped his car across and immediately in front of the deceased, zig-zagging his car from one side of the road to the other until he hit the deceased’s car in the rear. In Berness, supra, the accused was convicted of second degree murder where the evidence disclosed that he and the driver of the accused’s automobile were both intoxicated and their car struck and killed a young woman who was walking about four feet off the paved portion of the highway, in the same direction as the accused’s automobile was moving, but on the opposite side of the highway so that it was necessary for the automobile to cross the entire highway and go onto the shoulder of the road in order to strike the girl. Second degree murder convictions have also been sustained where the accused and another were racing each other when the deceased was killed, Wright, supra, and where the accused intentionally ran over the deceased. Blackwell v. State, 264 Ala. 553, 88 So.2d 347 (1956).”
Commander, 374 So.2d at 913-915.

The facts in Commander are that the defendant, while legally intoxicated and traveling at a substantial but undetermined rate of speed, plowed into the rear end of a vehicle parked completely off the paved portion of a straight but unmarked county road. The collision occurred at night and the lights of the parked automobile were on. We held that this evidence was sufficient to support a conviction for murder in the second degree.

On principle and authority we feel quite certain in holding that the facts of this case are sufficient to support the jury’s verdict of second degree murder. In order to sustain such a conviction, the accused need not have been highly intoxicated or “blind drunk.” In' Wright v. State, 41 Ala. App. 684, 149 So.2d 835 (1963), the defendant drank two cans of beer, which were his third and fourth for the day, shortly before the fatality. There was no evidence that he was legally intoxicated.

In Berness v. State, 38 Ala.App. 1, 83 So.2d 607, affirmed, 263 Ala. 641, 83 So.2d 613 (1953), it was noted:

“ ‘It is well settled under our decisions that where the accused is himself the driver of an automobile and drives it in a manner greatly dangerous to the lives of others so as to evidence a depraved mind regardless of human life, he may be guilty of murder in the second degree if his anti-social acts result in death of another, and this though he had no preconceived purpose to deprive any particular human being of life. Under such circumstances his acts are unlawful and without legal excuse, and malice may be inferred therefrom. Reed v. State, 25 Ala.App. 18, 142 So. 441; Wiliams v. State, 30 Ala.App. 437, 7 So.2d 511; Hyde v. State, 230 Ala. 243, 160 So. 237.’ ”

In arguing against the defendant’s motion to exclude the State’s evidence, the District Attorney presented the following argument to the trial court. From the evidence we think that the jury might reasonably have reached the same conclusions.

"Your Honor, here the evidence that has been presented in Court shows without contradiction that this woman had been drinking somewhere. For what period of time or how much we don’t know. I believe the physical evidence and the circumstantial evidence surrounding the event that occurred on Mastín Lake show that she was in some type of mental state, caused by alcohol or the like, so that she ran off the road, busted a guy-wire and ran up through several people’s yards, as has been the evidence, bounced back on the road, fighting for control, dragging limbs and a muffler underneath, topped a hill at a high rate of speed, went down the other side and hit the only car in sight. There were no other cars there. There were four other lanes that this defendant could have used in order to go through the intersection to go around that one car parked there. She would have to aim at the car in order to hit it. She had four other lanes that she could have gone through. It is the State’s contention that she determined at that time and place to hit that car because there was plenty of room elsewhere and could lead a reasonable person to believe only that with the wide open spaces there and four other big lanes of traffic and two turn lanes to turn to another street, she topped that hill and determined to hit that car because she would have had to aim at it to hit it, and there was plenty of space elsewhere to go around it or to miss it. So in this case I say that.it is outside the Langford decision and that this woman when she topped the hill, for whatever reason she has or for whatever reason she had at that time, that she determined to hit that car, which was the only car in five lanes of traffic, and she did hit the car and she determined to do so. The jury can draw that inference from the evidence, and that this case is outside the Langford decision.”

The contention that one must be intoxicated before a second degree murder conviction resulting from an automobile accident will be sustained is simply without judicial or reasonable support. Unquestionably “(t)he taking of one or more drinks of intoxicating liquor would not of itself be sufficient to establish the fact of intoxication.” Broxton v. State, 27 Ala.App. 298, 300, 171 So. 390 (1936). However, the fact that the accused had been drinking is just one circumstance to evidence a “depraved mind regardless of human life.” Berness,

As the facts of each particular case must determine the sufficiency of the evidence, we will allow the facts and circumstances of this case before us to speak for themselves. The evidence is sufficient to support the jury’s finding and verdict of murder in the second degree.

II

The defendant alleges that the trial court erred in admitting into evidence, over his timely objection, a color photograph of the deceased. In brief, the defendant describes this picture as “a large posed photograph of decedent, in color, and mounted on a large sheet of white cardboard for display purposes.” The photograph “portrayed her as a pretty and wholesome appearing child.” The defendant contends that this photograph could only inflame the jury and excite revenge. The defendant argues:

“The photograph did not even purport to portray decedent as she appeared on the day she was killed, because the time the picture was taken was not identified.
“The photograph had absolutely no probative value to any issue, and the only useful purpose it could have, from the prosecution’s standpoint, was to excite the Jury’s sympathy for the decedent, her family, and her friends, and thereby to so inflame the Jury’s emotions, and to so bias and prejudice the Jury against the Defendant, that the Jury would seek, not Justice based on the evidence and the law, but revenge.”

The subject of the admissibility of photographs of the victim of a homicide is treated in C. Gamble, McElroy’s Alabama Evidence, Section 207.01(2) (3rd ed. 1977).

“The basic question to be asked in deciding the admissibility of a photograph of a victim, just as with any other demonstrative evidence is whether it has a reasonable tendency to prove or disprove some material fact in issue. This decision is left largely to the sound discretion of the trial judge. Of course, the decision of the trial judge is not necessarily final since his decision is reviewable to determine if there has been an abuse of discretion.
“It generally is agreed that the photograph of the victim of the homicide, taken before the alleged murder, is admissible for the purpose of identification. This is usually admitted in connection with the testimony of a witness who saw the alleged deceased at the time of the killing and who is called upon to identify the deceased as the person in the photograph. The foregoing decisions which admit the victim’s photograph into evidence for the purpose of identification are applicable even though there exists no dispute over the identity of the deceased, (citing Luschen v. State, 51 Ala.App. 255, 284 So.2d 282 (1973) (not error to introduce ‘angelic’ looking picture of deceased); Boyd v. State, 50 Ala.App. 394, 279 So.2d 565 (1973); Sanders v. State, 202 [Ala.App.] 37, 79 So. 375 (1918)).”

Upon these authorities we find no abuse by the trial judge of his discretion.

Ill

The defendant also alleges that the trial court erred in refusing to grant his motion to exclude the opinion testimony of State’s witness Marsha Mayes that the defendant was intoxicated when she was in Bargain Land Grocery shortly before 11:00 on the night of the homicide. Without any citation of authority, defense counsel’s objection is predicated on the contention that Ms. Mayes did not testify to the “legal definition” of intoxication.

On direct examination, Ms. Mayes testified that she smelled alcohol on the defendant’s person and that “from seeing people throughout (her) lifetime drinking alcohol or being around people with alcohol” in her opinion the defendant was “intoxicated”. She also testified that the defendant was a “regular customer” in her store.

On cross examination Ms. Mayes testified that she believed the defendant was intoxicated because:

“I have seen her in the store several times and this time she wasn’t acting herself. It was different.”
* * * * * *
“Well, she couldn’t find her money and she was kind of, you know, mumbling something. I couldn’t figure out what she was trying to say.”

When Ms. Mayes stated positively that she “knew” the defendant had been drinking, defense counsel attempted to discredit her testimony by showing that Ms. Mayes considered someone intoxicated if he had had anything at all to drink no matter how little. From the record of defense counsel’s cross examination we find the following exchange:

“Q. Are you saying that merely because you know someone has been drinking in the sense that you can smell alcohol on them then they are intoxicated, at least to some extent? Are you saying that?
“A. Yes, sir.
“Q. So if I drank two cans of beer over the space of an hour in your opinion I would be intoxicated simply because I had drunk two cans of beer?”
* * * * * *
(Objection of District Attorney and Court’s ruling omitted)
“Q. Isn’t that true? Isn’t that what you are saying?
“A. Well, you would have the leadway by having the two cans of beer, rather than if you hadn’t drank anything at all. You would have a good start.
“Q. All right. In your opinion, to some degree I would be intoxicated because I had gotten a start on getting drunk; is that right?
“A. Yes.
“Q. And if I had drunk one can of beer the same thing would be true, in your opinion?
“A. Yes, sir.
“Q. Or half a can?
“A. Yes, sir.”

On redirect examination the District Attorney questioned Ms. Mayes:

“Q. Ms. Mayes, I again ask you, at 29 years of age, you have been around people when they are sober and in your opinion you have been around the same people when they are intoxicated; is that right?
“A. Yes, sir.
“Q. And, just as we all have, we have seen people sober and then see(n) them drunk?
“A. Yes.
“Q. Tell the jury on that night at that time was this woman intoxicated or not? Was she drunk or sober?
“A. She was drunk.”

On recross examination, defense counsel asked one question:

“Q. Drunk in the same sense, Mrs. Mayes, that you are using the word ‘intoxicated' when you just testified to the jury?
“A. Yes, sir.”

The trial judge’s refusal to exclude the testimony of Ms. Mayes was without error.

Intoxication is a matter of common observation which requires no peculiar scientific knowledge. 31 Am.Jur.2d Expert and Opinion Evidence, Section 101 (1967). The general principles controlling opinion testimony on intoxication are stated in 23 C.J.S. Criminal Law § 866 (1961).

“It has been broadly declared, or the principle has been broadly applied, that any witness may express his opinion as to intoxication, that opinion testimony as to intoxication is not limited to expert testimony, and may be given by law witnesses, and that intoxication or sobriety need not be proved by expert testimony, since it does not require any particular or special knowledge. The witness must have had a suitable opportunity, even though slight, for observation; the conditions under which the witness observed the person in question, and the opportunity to observe him, go to the weight, and not to the admissibility, of the testimony. It has been required that evidence be admitted showing that any witness who is asked to express an opinion as to accused’s intoxication is properly qualified.”

See also Gladden v. State, 36 Ala.App. 197, 54 So.2d 607, cert. denied, 256 Ala. 368, 54 So.2d 610 (1951).

Whether or not the qualification of a witness to state his opinion is sufficiently established is a matter resting largely in the trial court's discretion. Its ruling thereon ordinarily will not be disturbed on appeal unless there is a clear showing of abuse. Koziwski v. State, 248 Ala. 304, 27 So.2d 818 (1946). In determining competency, the trial judge is not bound by any hard and fast rule. Redwine v. State, 36 Ala. App. 560, 61 So.2d 715, cert. denied, 258 Ala. 196, 61 So.2d 724 (1953).

Ms. Mayes was competent to testify that the defendant was intoxicated because (1) she had previously “been around” people who had been intoxicated and (2) had a suitable opportunity to observe the defendant. On cross examination, defense counsel revealed the basis of and for Ms. Mayes’ opinion that the defendant was intoxicated. This is entirely different from showing that the witness did not have any reason or foundation upon which to state her opinion and conclusion. Since she was competent to state her opinion, the trial judge did not exclude her testimony and properly so. “ ‘It matters not how slight the tendency of evidence may be towards establishing any material fact involved, the court cannot exclude it from the jury. Its weight is for their determination.’ Morris v. State, Ala. Sup., 39 So. 608, 611.” Williams v. State, 34 Ala.App. 253, 256, 39 So.2d 29 (1948). It was the sole duty of the jury to evaluate the testimony of Ms. Mayes and to determine its probative force, weight and effect.

IV

The defendant maintains that the trial court erred in refusing to give defendant’s written requested charges numbers 60 and 61.

A

Charge No. 60:

“The Court charges the jury that the jury cannot find the Defendant guilty of any crime included in the indictment, upon the theory that the deceased, Pamela Al-legood, was killed as a proximate result of Defendant driving an automobile upon a public highway, while intoxicated.”

As stated in Part III of this opinion, this was a matter of fact for the jury to determine. Consequently, charge No. 60 was properly refused.

B

Charge No. 61:

“The Court charges the jury that the mere fact, if it be a fact, that some time after 5:00 o’clock P.M., on March 9, 1979, and some time before the collision, the Defendant drank three beers, and, later, shortly before the collision, the witness, Marsha Mayes, smelled alcohol on Defendant’s breath, is insufficient for the jury to find that, at the time of the collision resulting in Pamela Allegood’s death, Defendant was intoxicated.”

The trial judge did give defendant’s written requested charge no. 35:

“Evidence of the taking of one or more drinks of intoxicating liquor does not, of itself, establish the fact of intoxication. To establish intoxication, there must also be facts indicating a mental condition which is not normal, and which was produced or brought about by intoxicating liquor.”

Requested charge no. 61 invades the province of the jury concerning a finding of fact and does not call for a consideration of all the evidence. It omits the facts that Ms. Mayes also testified that the defendant was “mumbling”, couldn’t find her money and “wasn’t acting herself.” The correct principle, which charge 61 did not state, is contained in charge 35 which was given by the trial judge.

We have carefully searched the record for error prejudicial to the substantial rights of the defendant and have found none. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: PER CURIAM. SUNDBERG, Chief Justice, PER CURIAM.

license: Public Domain

text:
    James Curtis McCRAE, Appellant, v. STATE of Florida, Appellee.
    No. 45894.
    Supreme Court of Florida.
    Oct. 30, 1980.
    On Rehearing April 9, 1981.

      Philip M. Gerson of Freshman, Gerson & Freshman, Miami, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This is a direct appeal from a conviction of murder in the first degree and a sentence of death rendered in the circuit court for Lee County, Florida. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution, and affirm the conviction and sentence.

On October 15, 1973, Margaret Mears, a sixty-seven-year-old woman, was found dead in her apartment. Her body, unclothed from the waist down, had been brutally beaten about the head and chest, and her vaginal area was covered with blood. A bloody palm print lifted from her apartment was identified as that of the appellant, James Curtis McCrae. McCrae was subsequently indicted for two counts of murder in the first degree, one count charging a premeditated killing, and the other charging felony murder.

In order to determine his competency to stand trial, appellant was examined by three court-appointed psychiatrists. While all three doctors concluded that appellant’s mental disorders created violent and uncontrolled behavior, appellant was found competent to stand trial. Specifically, Dr. Mor-decai Haber observed that McCrae suffered from a disorder which contributed to an explosive personality. The doctor concluded that McCrae was mentally competent but too dangerous to be at liberty in society. Dr. Thomas Haagland found that McCrae was capable of giving aid to his counsel and, when sober, was a well-contained individual who had firm control over his faculties. However, when under the influence of intoxicants, appellant released an underlying epileptic furor which erupted into uncontrolled violent behavior. Dr. Clarence Schlit, who testified during the bifurcated phase of the trial, stated that McCrae was subject to attacks when under emotional stress which prevented him from exercising the restraint which would be present in a normal individual. Although the doctor stated that appellant was not insane, he did determine that McCrae suffered from a chronic schizophrenic illness and that he was unlikely to cooperate with defense counsel.

At trial, the state introduced the testimony of four witnesses for the alleged purpose of showing identity or establishing a common scheme or plan. Edith Veal testified that she lived near the victim. At the purported hour of the crime’s commission, she stated that a young black male with a cast on his arm fitting the same general description as appellant, knocked on her door and asked for Wayne Miller. Mrs. Veal stated that no one by that name lived at her residence. The man then asked if her husband was home. While Mrs. Veal was unable to identify appellant at a pretrial lineup, she was able positively to identify him upon being recalled to the witness stand.

Muriel Bergner similarly testified that she lived in close proximity to the victim. According to her testimony, on October 14, 1973, the day before the victim’s body was found, a young black male also fitting McCrae’s general description approached her while she was walking her dog, to ask directions. The man walked away, but returned, again asking questions. At that point, Mrs. Bergner walked hurriedly to her home and locked the door. She succeeded in fastening the lock just before the man arrived at her doorstep. The state also called Dorothy Hendley who testified that while walking her dog, a man whom she positively identified as appellant approached her and asked questions similar to those asked of Muriel Bergner.

Faith Lederman Gertner and William Smith testified that McCrae came to Mrs. Gertner’s apartment on June 8, 1973, searching for Randy Williams. When informed that Williams did not live there, McCrae left but returned shortly thereafter, and asked Mrs. Gertner to accompany him downstairs. She refused, but William Smith agreed to go in her place. Once they walked downstairs, McCrae took a swing at Smith and fled. Later that evening, appellant returned and forced the door open. He drew a gun and shot Smith. He then beat Mrs. Gertner about the face with the gun and choked her before fleeing again.

After the state rested, appellant took the stand in his own behalf. During direct examination, he was asked if he had been convicted of misdemeanors and if he had pleaded guilty to those charges. Appellant responded in the affirmative to both questions. His counsel then asked if he was ever convicted of a felony, to which appellant again answered affirmatively. On cross-examination, the state attorney sought to elicit the nature of the felony charge. Overruling defendant’s objection, the court required McCrae to disclose to the jury that he had pleaded guilty to assault with intent to commit murder on the ground that appellant’s counsel had “opened the door” to such questioning.

After the close of the evidence, the jury returned a verdict of guilty on the felony-murder count, but recommended a life sentence. As required by section 921.141(3), Florida Statutes (1975), the trial judge made findings of fact wherein he rejected the recommendation of the jury and entered a judgment calling for the death sentence. Specifically, he stated:

As presiding Judge I observed the Defendant when evidence was introduced and especially when the fingerprint expert from the F.B.I. was testifying, the Defendant [appellant] appeared extremely nervous and upset when this evidence was being received. Throughout the trial, as the story unfolded, the Court was struck with the heinous, atrocious and cruel murder of this elderly woman.
The Court was also aware that a person answering the description of the Defendant tried to gain entrance to the homes of two other elderly women in the same close neighborhood wherein the deceased lived in her apartment at or about the time shortly connected with the death of the deceased.
The Court is also aware that the testimony proved that the Defendant, a few months before the instant case at bar, brutally attacked a female by the name of Faith Lederman [Gertner] after he, the Defendant, had shot and seriously wounded William R. Smith, which as a result of said attack, the Defendant stood before the Court and voluntarily pleaded guilty to the crime of assault with a deadly weapon with intent to commit first degree murder.
The record in Case No. 73-372 CF, Lee County docket, reveals that the Defendant plead guilty to this charge on September 11, 1974, just about one month before the murder of Margaret Mears, the deceased in the case at bar.
The Defendant was permitted to remain at liberty on bail pending the pre-sentence investigation report on Case No. 73-372 CF.
During the time the Defendant was at liberty on bail between September 11, 1973 and October 29,1973, the murder for which the Defendant was tried and convicted in the instant case was committed.
It is interesting to note that the Defendant’s fingerprints taken when he was convicted for the crime laid in Case No. 73-372 CF matched the bloody fingerprints lifted from the residence and premises occupied by the deceased, Margaret Mears, and thus resulted in the indictment and conviction of the Defendant in the case at bar.
The Court before the trial was interested in the mental state of the Defendant, and appointed experts in the field of psychiatry to thoroughly examine the Defendant. The Court held hearings on the question of the mental condition of the Defendant and after hearing the testimony of such experts held that the Defendant was fully able to distinguish the difference between right and wrong and could fully cooperate with his counsel in the preparation and conducting of his defense.
The Defendant did fully cooperate with counsel during the trial and actively advised counsel and was fully aware at all times of the proceedings during the trial.
The Defendant took the witness stand in his own behalf and demonstrated that he, the Defendant, had an excellent memory, but could not explain how his bloody fingerprints and palm prints were found on the wall near the back door of the deceased’s apartment or upon books and other items in the residence.
The evidence discloses that the deceased was so brutally and viciously beaten that her blood was splattered upon the walls and ceiling of her residence, and the evidence further discloses that this elderly woman was raped, either just before her death or directly after she was murdered.
The Court sets forth the above facts as they fully appear in the trial record, and the record taken by the Official Court Reporter.
The mitigating circumstances are very minor.
The Defendant, in order to show the jury that at the time of the crime he was “under the influence of extreme mental or emotional disturbance” placed Dr. Clarence Schilt on the stand, however the good doctor could not with any degree of medical certainty say in his opinion the Defendant was so affected. The doctor in his summation stated that the prisoner was either very smart or very sick.
Therefore, when the Court takes into consideration the aggravating circumstances such as:
1. The Defendant was a self-convicted felon, pleading guilty to assault to murder, and as an incident thereto, from the trial record that the Defendant had beat [sic] and choked the witness Faith Leder-man in a brutal assault upon her, just a few weeks prior to the murder of Margaret Mears, and
2. That the Defendant had on the same night of the murder tried to gain entrance to the residences of two other elderly females in the same locality, and
3. That the crime was committed “according to the jury verdict” in the commission of rape, and
4. That the murder was especially heinous, atrocious, brutal and cruel.
The Court feels that these facts greatly outweigh any mitigating circumstance heard by the Court at the trial of the Defendant.
The Court further feels that the testimony of Dr. Clarence Schilt in its entirety is not sufficient to outweigh the aggravating circumstances as set forth above and as they fully appear in the record in this case.
The Court is fully aware of the great responsibility that rests squarely upon the trial Judge in matters of this kind. The Court has struggled with the weighty decision that must be made in this case, and in making the determination to override the decision of the jury that advised the sentence of life imprisonment.
The Court is not chastising or inferring that the jury was lax in their responsibility. However, as it may appear the Court feels that it is the responsibility of the Court to follow the law as written by the wisdom of our various lawmakers; that society must be protected and that an example must be set forth and made apparent so that our citizens may be secure in their homes and that they may be safe from the experiences that Margaret Mears suffered at the hands of the convicted Defendant.
The Court therefore rejects the advisory sentence of the jury in this case and will pass the sentence of death upon the Defendant, JAMES CURTIS McCRAE.
The Court feels that this action upon its part is dictated by the facts and circumstances gleaned from the trial record and that sufficient aggravating circumstances exist as enumerated in Subsection 6 to greatly outweigh any mitigating circumstances as set forth in Subsection 7 of Section 921.141, Florida Statutes.

Tr. vol. VII, 1090-95.

Appellant urges five points for reversal. We restate these points below:

(i) whether the trial court erred in allowing the state to question McCrae about a prior unrelated felony on cross-examination; (ii) whether the trial court erred in admitting the testimony of Edith Veal, Muriel Bergner, Faith Gertner and William Smith; (iii) whether the trial court’s imposition of the death penalty denies appellant due process and equal protection of law and violates the mandate of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), because there is no rational distinction between first degree murder and murder in the second degree; (iv) whether the sentencing procedure enunciated in chapter 921, Florida Statutes (1975), is violative of the constitutional mandate of Furman v. Georgia both on its face and as applied to McCrae; and (v) whether the court erred in overruling the life sentence advisory verdict of the jury.

Following oral argument of respective counsel on these issues, appellant filed in this Court a motion for new trial with supporting affidavit pursuant to Florida Rule of Criminal Procedure 3.600, alleging newly discovered evidence. In the sworn affidavit, Otis Walker, a material witness at the trial of appellant, averred essentially that he testified falsely at trial due to coercion and the promise of a “deal” by state officials. Appellant contended that Walker’s assertion established a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 70 L.Ed.2d 215 (1963) and, accordingly, that he was entitled to a new trial. In an order dated November 29, 1978, we pointed out that a motion under rule 3.600 is an inappropriate pleading in an appellate court; such a motion must be addressed to the trial court. Further, because the time limit for filing this motion in the proper tribunal had expired, the only remedy for the alleged Brady violation was a motion in the trial court to vacate judgment and sentence under Florida Rule of Criminal Procedure 3.850. Although appellant’s affiant had denied under oath at trial that he was offered a “deal” in exchange for his testimony in that proceeding, this Court nevertheless relinquished jurisdiction to the trial court to enable appellant to file a rule 3.850 motion raising the alleged Brady violation.

Appellant thereafter filed the motion in the trial court and, on December 18, 1978, after hearing the evidence and argument presented by the parties, the trial court entered an order denying the requested relief. The judge found “that the testimony before this Court of OTIS WALKER ... is, in fact, untrue,” and concluded that no Brady violation had occurred. Although appellant filed a notice of appeal from that order, he has not informed this Court of the grounds of his attack. Nevertheless, we have reviewed the record of the rule 3.850 proceedings. We are satisfied that the trial judge correctly ruled on the motion and, accordingly, that ruling is affirmed. We now turn to the issues on appeal.

The first point raised by appellant challenges the ruling of the trial court allowing the prosecutor to cross-examine appellant with respect to his prior criminal record. Appellant concedes that the state is entitled to cross-examine him on those issues developed during direct examination. However, he argues that the state exceeded this scope of permissible inquiry when it sought to elicit the nature of the felony to which appellant referred on direct. According to appellant, the defense established only that he had been accused of a felony and that he had admitted his guilt.

We agree that on cross-examination the state must, as á general rule, limit itself to questions no broader in scope than those propounded by the defense. Cortes v. State, 135 Fla. 589, 185 So. 323 (1938); Cook v. State, 46 Fla. 20, 35 So. 665 (1903); 98 C.J.S. Witnesses, §§ 378, 393(b), 395, 401(2) (1957). In the instant case, however, the state properly transcended these bounds because defense counsel, through his questions on direct examination, tactfully attempted to mislead the jury into believing that appellant’s prior felony was inconsequential. On direct examination, appellant’s counsel asked his client:

Doug, at this time I would like to ask you a few questions. I would like to begin by asking you: Have you ever been convicted of a misdemeanor?
A. Yes, I have.
Q. Do you recall how many times you have been convicted of a misdemeanor?
A. Well, I would say over the past nine or ten years possibly about nine or ten misdemeanors.
Q. Did you pay fines or did you serve time for these misdemeanors?
A. I paid fines.
Q. Do you recall how much in the way of fines you may have paid for misdemeanors total?
A. Yes. I paid a total of $445 in fines.
Q. Doug, have you ever been convicted of a felony?
A. Yes, I have, one.
Q. One time?
A. Right.
Q. Doug, these misdemeanors, this felony you told me about, were you found guilty by a judge or a jury?
A. No, I was not; I pled guilty.
Q. You pled guilty?
A. Yes.
Q. Why did you plead guilty?
A. Because I was guilty.
Q. How did you plead to this charge against you that you are here for today?
A. Not guilty.
Q. Why did you plead not guilty, Doug?
A. Because I’m not guilty.

This line of questioning could have deluded the jury into equating appellant’s conviction of assault with intent to commit murder with his previous misdemeanors. Consequently, the state was entitled to interrogate appellant regarding the nature of his prior felony in order to negate the delusive innuendoes of his counsel. As stated by one learned scholar:

[T]he rule limiting the inquiry to the general facts which have been stated in the direct examination must not be so construed as to defeat the real objects of the cross-examination. One of these objects is to elicit the whole truth of transactions which are only partly explained in the direct examination. Hence, questions which are intended to fill up designed or accidental omissions of the witness, or to call out facts tending to contradict, explain or modify some inference which might otherwise be drawn from his testimony, are legitimate cross-examination.

4 Jones on Evidence, Cross Examination of Witnesses § 25:3 (6th Ed. 1972) (footnote omitted). A defendant cannot take advantage on appeal of a situation which he has created at trial. See Sullivan v. State, 303 So.2d 632 (Fla.1974); White v. State, 348 So.2d 1170 (Fla. 3d DCA 1977); Jackson v. State, 336 So.2d 633 (Fla. 4th DCA 1976).

Appellant next argues that the trial court erred in admitting the testimony of four witnesses introduced by the state in its case in chief. Initially, appellant contends that the testimony of Edith Veal and Muriel Bergner, placing him in the immediate area where the crime was committed at the approximate hour of its commission, should have been excluded for three reasons: (1) the two witnesses were unable positively to identify him and, therefore, their testimony was irrelevant; (2) assuming there had been a positive identification, there was no relevance between Mrs. Veal’s and Mrs. Bergner’s experience and the crimes committed; and (3) the testimony of the two women did not suggest an attempt to commit similar crimes against them.

Any testimony relevant to prove the fact in issue is admissible unless precluded by some specific rule of exclusion. Johnson v. State, 130 So.2d 599 (Fla.1961); Williams v. State, 110 So.2d 654 (Fla.1959). Furthermore, relevant evidence will not be excluded merely because it points to commission of a separate crime, unless its sole relevance is to point up bad character or the criminal propensity of an accused. Mackiewicz v. State, 114 So.2d 684 (Fla.1959); Williams v. State; Jordan v. State, 171 So.2d 418 (Fla. 1st DCA 1965). As appellant correctly notes, the testimony of Edith Veal and Muriel Bergner did not present evidence of another crime, thereby suggesting appellant’s criminal propensities. Because appellant has not suggested any other specific rule mandating that this testimony be excluded, the witnesses’ testimony is admissible if it is relevant.

Although appellant argues that the testimony of Mrs. Veal and Mrs. Bergner is irrelevant because they failed to identify him, he ignores the fact that both witnesses stated that the person who attempted to gain entrance to their homes met the general description of appellant. Both women described an individual closely resembling appellant who, on October 13, 1973, was in the immediate area where the crime was committed at the approximate time of its commission. Therefore, their testimony was relevant and admissible as to the issue of identity. Appellant’s contentions are merely questions for the jury as to the weight to be accorded the testimony.

Appellant also argues that the testimony of Faith Gertner and William Smith was irrelevant because the incident which they described occurred almost six months before the instant crime. Similarly, appellant submits there was no factual thread connecting the two events. We disagree. Mrs. Gertner’s testimony was admissible because she was able to identify the appellant and because, allegedly, she established that a common plan or scheme was employed by appellant to gain admittance to the victims’ homes. Bryant v. State, 235 So.2d 721 (Fla. 1970); Winstead v. State, 91 So.2d 809 (Fla. 1956).

Appellant’s third point is that he was denied due process and equal protection of law when he was charged under section 782.04(l)(a), Florida Statutes (1975), the first degree murder statute, rather than for murder in the second degree under section 782.04(2). This Court’s decisions in Adams v. State, 341 So.2d 765 (Fla.1976), and State v. Dixon, 283 So.2d 1 (Fla.1973), dictate that appellant’s argument must fail on this issue.

Appellant’s fourth point has been decided adversely to his cause in State v. Dixon.

Appellant argues further that the trial court violated the principles espoused in Tedder v. State, 322 So.2d 908 (Fla.1975), in overruling the advisory verdict of the jury for a life sentence. During the sentencing phase of the proceedings the court found three aggravating circumstances under section 921.141(5), Florida Statutes (1975): (1) that appellant was previously convicted of a felony involving the use or threat of violence to the person [subsection (b)]; (2) that the crime was committed while appellant was engaged in the commission of a rape [subsection (d)]; and (3) that the crime was especially heinous, atrocious and cruel [subsection (h)]. The finding of the second aggravating circumstance under section 921.141(5)(b) was clearly proper. Further, the trial judge determined correctly that the crime was especially heinous, atrocious or cruel. The evidence disclosed that the victim, a sixty-seven-year-old woman, was so brutally beaten about the head and chest that her blood was splattered upon the walls and ceiling of her residence. According to the testimony of Dr. Rosier, the medical examiner who viewed the scene of the crime and performed an autopsy on Ms. Mears, the pattern of blood stains on the wall indicated that she was either sitting or standing when the attack began. At some point the victim was thrown to the floor and her ribs were crushed, resulting in death by asphyxiation within four minutes thereafter. (Tr. vol. Ill, 499-512.) The rape occurred either shortly before or immediately following Ms. Mears’ death. The agony and horror which this elderly woman must have suffered pri- or to her death is evident. As we acknowledged in State v. Dixon, 283 So.2d at 9, section 921.141(5)(h) applies to “the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” The killing in this case falls squarely within this category when viewed in the context of prior decisions of this Court where we have approved a finding of this aggravating circumstance. See Washington v. State, 362 So.2d 658 (Fla.1978) (victim repeatedly stabbed while tied to a bed, with evidence of suffering); Barclay v. State, 343 So.2d 1266 (Fla.1977) (victim stabbed while begging for mercy and then killed by shots to the head); Adams v. State (victim beaten with fire poker past point of submission and until grossly mangled.)

The appellant further contends that the trial judge improperly found under section 921.141(5)(b), Florida Statutes (1975), that he had been previously “convicted” of a felony involving the use or threat of violence to the person. At the time of his trial in the instant case, McCrae had already pleaded guilty to assault with intent to commit murder upon Faith Gert-ner and William Smith. Pending sentencing on this charge, he was released on bail without adjudication of guilt, awaiting the completion of the presentence investigation report. Shortly after his release on bail, McCrae, as found by the jury in this cause, sexually assaulted and murdered the victim, Margaret Mears. McCrae contends that he had not been convicted of his prior offense against Gertner and Smith because the judge had not adjudicated him guilty. We reject this contention and find the plea of guilty to a felony involving the use or threat of violence to the person is a conviction which may be used in aggravation under section 921.141(5)(b) and was so intended by the legislature.

In Robinson v. State, 373 So.2d 898 (Fla.1979), we held that a plea of guilty is an in-court confession and an agreement for the court to enter a judgment. We further cited with approval the decision of the United States Supreme Court in Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969), which stated: “A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.” [Emphasis supplied.] These decisions recognize that once a plea of guilty has been accepted by a court, it is the conviction and the only remaining step is the formal entry of judgment and the imposition of sentence.

Further, in determining whether the death penalty should be imposed, a court must consider the various circumstances set forth in section 921.141. These circumstances aid the judge in establishing the overall character analysis of a defendant so that he may properly determine the appropriate sentence within the limits set forth in the law. Elledge v. State, 346 So.2d 998 (Fla.1977). Prior convictions of violent felonies is an extremely important factor in the sentencing process. Given the purpose of this process, it is illogical that a plea of guilty to a serious offense involving violence that is disposed of by a sentence that includes a withholding of adjudication of guilt should be treated differently than a plea of guilty with court adjudication. Both contain an unrefuted factual determination that the defendant committed this prior criminal offense.

In interpreting “conviction” for the purposes of section 921.141(5)(b), we reject any analogy to the habitual offender statute set forth in section 775.084. The habitual offender statute creates a separate criminal offense that requires both (a) a determination of guilt by a jury or a plea of guilty, and (b) an adjudication of guilt by the court. Washington v. Mayo, 77 So.2d 620 (Fla.1955). This statute was enacted by the legislature “to protect society from habitual criminals who persist in the commission of crime after having been theretofore convicted and punished for crimes previously committed.” Joyner v. State, 30 So.2d 304, 306 (Fla.1947). It is a new and separate criminal offense, and “adjudication of guilt” is a necessary element of the offense.

On the other hand, this Court in Elledge v. State recognized the purpose for considering prior criminal conduct in the capital sentencing process is to ensure a proper character analysis to determine if the ultimate penalty of death should be imposed. Specifically, we said:

[W]e believe the purpose for considering aggravating and mitigating circumstances is to engage in a character analysis of the defendant to ascertain whether the ultimate penalty is called for in his or her particular case. Propensity to commit violent crimes surely must be a valid consideration for the jury and the judge.

346 So.2d at 1001. The fact that an adjudication of guilt is a prerequisite, as a technical element of the offense, to a conviction under the habitual offender statute, is thus of no analogous value to the instant case. The word “convicted” as used in section 921.141(5)(b) means a valid guilty plea or jury verdict of guilty for a violent felony; an adjudication of guilt is not necessary for such a “conviction” to be considered in the capital sentencing character analysis.

The final sentencing issue concerns the appellant’s attempt to prove in mitigation under section 921.141(6)(b) that he was under the influence of extreme mental or emotional disturbance at the time the crimes were committed. In our view, the trial judge rejected this mitigating circumstance. The judge noted in his findings of fact that “the mitigating circumstances are very minor” and that the aggravating circumstances “greatly outweigh any mitigating circumstances.” As to this specific mitigating circumstance, however, the trial judge remarked that the doctor through whose testimony appellant submitted his proof, “could not with any degree of medical certainty” say that appellant satisfied the criteria of subsection (6)(b). However, it is apparent to us that the jury must have found this mitigating circumstance to exist. There is no other explanation for their advisory verdict in view of the heinous nature of the killing. We find their recommendation has no reasonable basis under the circumstances of this cause.

We realize the advisory recommendation of the jury must be accorded a great weight, Tedder v. State, 322 So.2d 908 (Fla.1975), but in our view the decision of the trial judge to impose the death sentence over the jury recommendation of life was in these circumstances proper. Hoy v. State, 353 So.2d 826 (Fla.1977); Dobbert v. State, 328 So.2d 433 (Fla.1976), aff'd, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), aff'd after Gardner order, 375 So.2d 1069 (1979).

For the reasons expressed in this opinion, we affirm the appellant’s conviction and sentence of death.

It is so ordered.

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

SUNDBERG, C. J., concurs specially in result with an opinion.

SUNDBERG, Chief Justice,

concurring specially in result.

While I concur with the result reached by the majority, I must respectfully register my disagreement with one aspect of the opinion. Based on the authority of Robinson v. State, 373 So.2d 898 (Fla.1979), and Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), I agree that a plea of guilty to a violent felony properly may be considered as an aggravating circumstance under section 921.141(5)(b), Florida Statutes (1977). As stated in Boykin, such a plea is more than a confession, “it is itself a conviction.” 395 U.S. at 242, 89 S.Ct. at 1711, 23 L.Ed.2d 274. Absent any suggestion by the defendant that the plea was involuntarily entered or the pendency of a motion to set it aside, the formality of entry of judgment and imposition of sentence by the Court should not be dispositive of the vitality of the conviction. Where appeal of a conviction is pending at the time of sentencing under chapter 921, however, quite another question is presented. Consequently, I cannot subscribe to the more sweeping statement by the majority which rejects any analogy to the habitual offender statute, section 775.084, Florida Statutes (1975). My reasons for this view are expressed in my dissent in Peek v. State, 395 So.2d 492 (Fla.1980), and no useful purpose would be served by repeating them here.

ON REHEARING

PER CURIAM.

This cause was initially argued on March 5, 1975. It was subsequently scheduled for reargument on September 20,1977. Appellant’s counsel thereafter requested that this Court relinquish jurisdiction so that he could file a petition for post-conviction relief under Rule of Criminal Procedure 3.850 on the ground that a witness committed perjury during trial. We granted the request and reliquished jurisdiction by our order dated November 29, 1978. After an evidentiary hearing, the trial court denied appellant’s petition for post-conviction relief. Appellant filed a notice of appeal on March 8, 1979. The record was received by the Court, but, through inadvertence, the briefs were not made available for Court review. As stated in our original majority opinion, “[although appellant filed a notice of appeal from that order, he has not informed this Court of the grounds of his attack. Nevertheless, we have reviewed the record of the rule 3.850 proceedings. We are satisfied that the trial judge correctly ruled on the motion and, accordingly, that ruling is affirmed.”

On this petition for rehearing, the briefs filed in the post-conviction proceeding have been made available to the Court. Appellant’s brief asserts that the trial court erred in finding the witness’s testimony at trial to be true and the testimony at the post-conviction hearing to be false. The remaining points are dependent upon this alleged erroneous finding. We have reviewed the record of the post-conviction relief proceeding in light of the assertions made in appellant’s brief, and we have concluded that the evidence is sufficient to affirm the trial court’s finding. Our opinion is corrected to reflect our consideration of the appellant’s briefs.

The remaining issues set forth in the petition for rehearing are without merit and are denied.

It is so ordered.

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


author: McDonald, justice.

text:
    DINERS CLUB, INC., Petitioner, v. Donald F. BRACHVOGEL et al., Respondents.
    No. 57046.
    Supreme Court of Florida.
    Oct. 30, 1980.
    As Modified on Denial of Rehearing April 14, 1981.
    Arnold R. Ginsberg of Horton, Perse & Ginsberg and Carl L. Laks, Miami, for petitioner.
    Carol A. Fenello of Bradford, Williams, McKay, Kimbrell, Hamann, Jennings & Kniskern, Miami, for respondents.
   McDonald, justice.

This cause is before the Court on petition for writ of certiorari to review the decision of the Third District Court of Appeal, reported at 370 So.2d 443 (Fla.3d DCA 1979). The district court affirmed without opinion a circuit court order vacating a default judgment against Mrs. Brachvogel. Finding apparent conflict between that decision and Barnett Bank of Clearwater, N. A. v. Folsom, 306 So.2d 186 (Fla.2d DCA 1975), we entertained jurisdiction.

Diners Club sued the Brachvogels on their credit card account The Dade County Sheriff served process and complaint for both Mr. and Mrs. Brachvogel at their marital home. At the time the Brachvogels lived together, but were having marital problems. The sheriff effected personal service on Mr. Brachvogel and perfected service on Mrs. Brachvogel by leaving the copy of the summons and complaint with her husband. Neither of the Brachvogels appeared or defended the suit, and the trial court entered a default judgment against both of them.

Some months later, after Diners Club effected garnishment of her wages, Mrs. Brachvogel moved the trial court to set aside the default judgment on the grounds that her husband never told her about the lawsuit, that she was unaware of it, and that she had a legitimate defense. The trial court granted the motion. The district court affirmed on the authority of Shafey v. Tease, 332 So.2d 137 (Fla.3d DCA 1976).

In Shafey the Third District Court stated that vacation of a default judgment is in the sound discretion of the trial judge, and, absent an abuse of that discretion, the trial court’s decision should not be disturbed. The vacation in Shafey was granted because the husband did not inform his wife of the summons and statement of claim directed to both of them which he received in the mail. The district court declined to reverse, finding no abuse of discretion. The court noted that one reason the husband did not tell the wife was that he did not realize the papers were “legal papers”.

In Barnett Bank of Clearwater, N. A. v. Folsom the sheriff effected substituted service on a husband by serving his wife at the couple’s home. After the husband failed to appear and suffered a default judgment, he moved to set aside the judgment, alleging that his wife never informed him of the papers she received. The county court vacated the judgment, and the circuit court affirmed, stating that actual notice was required under the statute governing substituted service. The Second District Court disagreed, noting the Pandora’s Box that would be opened if a defendant could have a judgment vacated merely because he was not actually informed of a lawsuit. Holding that notice requirements need only be just and reasonable, the court stated

the test is not whether the notice was, in fact, brought to the attention of the defendant, but whether at the time of service circumstances were such that it could be presumed that the matter would be brought to his attention.

306 So.2d at 187.

The apparent conflict between Folsom and Shafey was reconciled by this Court in Sterling Drug, Inc. v. Wright, 342 So.2d 503 (Fla.1977). As stated in Wright the validity of the service of process is not the issue here, but whether the trial judge abused his discretion in vacating a default upon a claim of a moving party that excusable neglect existed for not answering. The service on Mrs. Brachvogel was valid whether she knew of it or not. There is a presumption that she was aware of it. But by proving that she failed to answer the complaint because she was unaware of it, and by tendering a defense upon which she may prevail, she provided the trial judge with a sufficient predicate to exercise his discretion to vacate the judgment under the excusable neglect rule.

The writ is discharged.

It is so ordered.

ADKINS, BOYD and ALDERMAN, JJ., concur.

OVERTON, J., concurs in result only.

SUNDBERG, C. J., and ENGLAND, J., dissent.

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

      . This was valid service under the applicable statute at the time.

      . That statute, § 48.031, Fla.Stat. (1973), is in pertinent part the same as the statute applicable in the instant case, § 48.031, Fla.Stat.

      . Rule 1.540(b), Fla.R.Civ.P.


author: PER CURIAM. SHARP, Judge.

text:
    ORANGE COUNTY, a political subdivision of the State of Florida, Appellant, v. The STATE of Florida, on the relation of Glen E. SMITH, as Trustee, and Ann Ross, Appellees.
    No. 79-1508/T4-648.
    District Court of Appeal of Florida, Fifth District.
    June 27, 1980.
    On Rehearing Feb. 25, 1981.
    Rehearing Denied April 2, 1981.
    James F. Page, Jr. of Gray, Adams, Harris & Robinson, P. A., Orlando, for appellant.
    Byrd V. Duke, Jr., North Miami, for ap-pellee, Glen E. Smith.
   PER CURIAM.

AFFIRMED.

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

ON MOTION FOR REHEARING

SHARP, Judge.

The motion for rehearing is granted because this court overlooked the fact, due to the voluminous record in this case and the inadequacy of the briefs, that the City of Bithlo was never defaulted in the prior litigation, and therefore the substituted party, Orange County, should not be foreclosed from raising the defense of laches.

The appellee filed suit in 1956 to recover the principal and interest due on improvement bonds issued by the City of Bithlo in 1924, and obtained a judgment. No action was taken to recover on the judgment until 1973, when suit was filed against Bithlo in case number 73-7910. This suit against Bithlo was “abated” for insufficiency of process. On appeal this judgment was reversed on other grounds. After remand the trial court said Bithlo could'not raise the defense of laches because it was “in default,” although apparently no default was ever obtained against Bithlo. The trial court then abated the action as to Bithlo because there were no qualified persons who were willing to perform any governmental function connected with Bithlo. This judgment was also appealed.

While the appeal was pending the appellant brought suit for mandamus in an effort to compel Bithlo to levy taxes to pay the judgment. The trial court abated that suit until the appellate court rendered its decision in the case on appeal.

The appellate court was informed that there were persons willing to serve on behalf of Bithlo. It stated that upon remand the trial court could determine the qualifications of these people and make the necessary appointments to represent the City of Bithlo. There is no evidence in the record before us that anyone was ever so appointed or that this action was ever revived.

The lower court ordered that the mandamus suit and the earlier suit travel together as companion cases. Orange County was substituted as Bithlo’s “alter ego” and for the first time it sought to raise the defense of laches on behalf of Bithlo. The trial court held Orange County was barred from raising this defense, and that is the issue presented on this appeal.

Bithlo and Orange County never had an opportunity to raise the defense of laches in either suit. During this litigation Bithlo had ceased to function and to exist for all practical purposes, and there were no people or agents to represent it. Both the trial and appellate courts recognized this fact. Bithlo was analogous to an incompetent for whom no guardian had been appointed or a deceased person for whom no personal representative existed. Under these circumstances it would be inequitable to bar Orange County from raising this defense even if the doctrine of res judicata or collateral estoppel applied, de Cancino v. Eastern Airlines, Inc., 283 So.2d 97 (Fla.1973). However, since Bithlo was never actually defaulted, and both actions were “abated” as to it, res judicata should not apply in any event. Burleigh House Condominium, Inc. v. Buchwald, 368 So.2d 1316 (Fla.3d DCA), cert. denied 379 So.2d 203 (1979); Donaldson Engineering, Inc. v. City of Plantation, 326 So.2d 209 (Fla. 4th DCA 1976). The summary judgment appealed is reversed in so far as it forecloses the right of Orange County to plead and attempt to prove the defense of laches. This matter is remanded to the trial court to permit the appellants to file an answer and any affirmative defenses available to it.

REVERSED and REMANDED.

DAUKSCH, C. J., and COBB, J., concur.

      . Smith v. Bithlo, 314 So.2d 212 (Fla.3d DCA 1975).

      . Smith v. Bithlo, 344 So.2d 1288 (Fla. 4th DCA 1977).

      . Ch. 77-502, Laws of Florida.


author: HENDRY, Judge. NESBITT, Judge

text:
    Delbert HOSKINS and Martha Hoskins, Appellants, v. MIDLAND INSURANCE COMPANY a/s/o Resolute Insurance Company, Appellee.
    No. 80-1257.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 1981.
    Rehearing Denied April 13, 1981.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for appellants.
    Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, David E. Stone, Miami, for appellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   HENDRY, Judge.

In an action on a contract of indemnity, we reverse the order of the court below on the ground that the prevailing party was collaterally estopped to seek the verdict ultimately obtained.

Appellee Midland Insurance Company brought the action below as subrogee of Resolute Insurance Company. Resolute was, among other things, a surety; Eddie Hoskins was an agent who wrote bail bonds for Resolute; and appellants Hoskins are his surviving son and wife, who agreed, as a precondition to Resolute’s allowing them to continue Eddie’s business, to indemnify Resolute for all losses which accrued to it through Eddie’s agency. Included among such losses was a $97,000 estreature by an Iowa court, occasioned by the non-attendance of one Willie Sellers, for whom Eddie’s employee Wilson had fraudulently posted bond. It is that loss for which Midland seeks contractual indemnity.

Because of the disfavor in which Florida courts hold agreements to indemnify parties against their own wrongful acts, enforcement of such agreements is denied in the absence of clear and unequivocal contractual expression of such an intent; without such an expression, a contractual indemnitor’s obligation is negatived by any fault of the indemnitee as legal cause of its own loss. Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equipment Co., 374 So.2d 487 (Fla.1979). Since the contract of indemnification signed by appellants Hoskins did not purport to indemnify Resolute for its own wrongful acts, the primary issue became whether or not Resolute was responsible in any degree for the loss for which it sought indemnification.

Resolute had appealed the Iowa estrea-ture on the basis that Wilson’s posting the bonds was a fraudulent act beyond his authority, and that Iowa officials were on constructive notice that the bonds were invalidly issued. It was ultimately decided in Iowa’s Supreme Court that the bonds were indeed fraudulently issued, but that they nonetheless properly were estreated; essential to the court’s judgment was its conclusion that the fraud was facilitated by Resolute’s negligence, inter alia, in the drafting of its bond documents. State v. Sellers, 258 N.W.2d 292, 297-99 (Iowa 1977).

The question before this court relates to the precedential effect in the trial below of the Iowa court’s findings and conclusions relating to Resolute’s negligence.

It is clear that a judgment against an indemnitee, arising from a suit in which the indemnitor has knowledge and opportunity to defend, is binding (res judicata) on the indemnitor on all essential issues decided (in the absence of fraud or collusion). Wright v. Fidelity and Casualty Co. of New York, 139 So.2d 913 (Fla. 1st DCA 1962). That rule ordained the result in Westinghouse Electric Corp. v. J. C. Penney, Inc., 166 So.2d 211 (Fla. 1st DCA 1964), where the department store sought contractual indemnification for damages paid by it, the result of a judgment obtained by a customer for injuries sustained on a store escalator maintained by Westinghouse. In that earlier action, which Westinghouse declined to defend, it was adjudged that the customer’s injuries were proximately caused by negligent maintenance of the escalator. The store won its claim for indemnification on the basis that the former judgment adverse to the store was res judicata, insofar as Westinghouse’s ability to deny its negligent maintenance was concerned.

But Florida courts appear not to have encountered the question of the preceden-tial effect of the earlier judgment on the indemnitee, in his action over against his indemnitor.

Having studied the question, and its resolution in other jurisdictions, we come to the conclusion cogently expressed by an annotator, 24 A.L.R.2d 329, 330:

Irrespective of whether a judgment obtained by an injured person against an indemnitee is conclusive upon the indem-nitor under the general rules governing the conclusiveness of judgments, the authorities which have considered the subject ... as a distinct question hold unanimously that an indemnitee, in his action to recover from the indemnitor the amounts paid in satisfaction of a judgment obtained against him by an injured person, is bound by all findings without which the judgment could not have been rendered, and that, if the judgment in the earlier action rested on a fact fatal to recovery in the action over against the indemnitor, the latter action cannot be successfully maintained.

We adopt the rule expressed by the Restatement of Judgments § 107 (1942):

In an action for indemnity between two persons who stand in such relation to each other that one of them has a duty of indemnifying the other upon a claim by a third person, if the third person has obtained a valid judgment on this claim in a separate action against
(a) the indemnitee, both are bound as to the existence and extent of the liability of the indemnitee, if the indemni-tee gave to the indemnitor reasonable notice of the action and requested him to defend it or to participate in the defense.

Specifically,

In actions between the indemnitor and the indemnitee, the indemnitee is subject to the burdens, as well as the benefits, of the rules of res judicata with reference to matters determined in an action brought by the obligee or by the injured person. If the judgment is based on a finding of fact which if correct would discharge the indemnitor, the latter is discharged from liability to the indemnitee by such finding, unless by agreement the entire defense is controlled by the indemnitor ... So where a person has been hurt by a telephone wire which was electrified by touching a power wire and the injured person sued the telephone company and judgment was given against the telephone company on the ground that it knew of the danger, the telephone company, which had unsuccessfully invited the power company to defend the action, is bound by the finding in its subsequent action for indemnity against the power company.

Restatement of Judgments § 107, Comment h (1942).

In Florida,

when determining whether a party is entitled to indemnity, we will not weigh the relative fault of the parties, but rather we will look to the party seeking indemnity to determine whether he is without fault.

Houdaille Industries, Inc. v. Edwards. 374 So.2d 490, 493 (Fla.1979). Contra, Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 207 A.2d 732, 738 (1965). Thus, by reference to the Iowa court’s finding that Resolute was at least partially at fault for its loss, we hold that Resolute is collaterally estopped to deny its fault in its action for indemnification.

Appellee points to our recent decisions in Fuller v. General Motors Corp., 394 So.2d 491 (Fla. 3d DCA 1981), and Southern Bell Telephone & Telegraph Co. v. Robinson, 389 So.2d 1084 (Fla. 3d DCA 1980), in support of its proposition that it may not be collaterally estopped by the Iowa judgment, because appellant was not a party to the action in which it was rendered. Appellee argues that without identity of parties, or adversity between co-parties in the Iowa action, it may not be precluded from relitigating the dispositive issue of its negligence. We disagree. The federal Supreme Court has recently said, “Under collateral estoppel, once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation.” Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210, 217 (1979) (e.s.). However, we need not address the conclusiveness of that statement upon the issue sub judice, where an exception to the general rules requiring identity of parties and adversity of co-parties has been repeatedly recognized both by this court, Allstate Insurance Co. v. A. D. H., Inc.,-So.2d-(Fla. 3d DCA 1981) (Case no. 80-16, opinion filed March 17, 1981), Atlantic Coast Development Corp. v. Napoleon Steel Contractors, Inc., 385 So.2d 676, 681 (Fla. 3d DCA 1980); MacArthur v. Gaines, 286 So.2d 608 (Fla. 3d DCA 1973); and in a host of other jurisdictions. See cases collected in 1 B.J. Moore, Federal Practice ¶ 0.411 [2], pp. 1299-1305 (2d ed. 1974).

Reversed.

NESBITT, Judge

(specially concurring):

In the majority’s opinion, they recognize, but do not identify, the common law procedure of “vouching in.” In Olin’s Rent-A-Car System, Inc. v. Royal Continental Hotels, Inc., 187 So.2d 349 (Fla. 4th DCA), cert. denied, 194 So.2d 621 (Fla. 1966), Justice Barns, who delivered the opinion of the court, recognized this common law procedural device when he stated:

The right of a person first sued to “vouch in” a person liable to him has been stated as follows: “... when a person is responsible over to another, either by operation of law or by express contract ... and he is duly notified of the pendency of the suit, and requested to take upon him the defense of it, he is no longer regarded as a stranger, because he has the right to appear and defend the action and has the same means and advantages of controverting the claim as if he were the real and nominal party upon the record. In every such case, if due notice is given to such person, the judgment, if obtained without fraud or collusion . .. will be conclusive against him, whether he has appeared or not .... ”

187 So.2d at 351.

A number of Florida decisions have recognized the procedural device of “vouching in” without labeling it as such. As pointed out in Section 13.1 of Trawick’s Florida Practice and Procedure (1980 Edition), the common law procedure of vouching in is the ancient but still viable predecessor of current third-party practice.


author: PER CURIAM.

text:
    Michael C. BOYKIN, Appellant, v. AMERICAN MARINE PRODUCTS, INC. et al., Appellees.
    No. TT-381.
    District Court of Appeal of Florida, First District.
    Feb. 10, 1981.
    Rehearing Denied April 15, 1981.
    Richard A. Barnett of Krupnick & Campbell, P. A., Fort Lauderdale, for appellant.
    K. P. Jones, Fort Lauderdale, for appel-lees.
   PER CURIAM.

Claimant urges the deputy erred by denying all temporary benefits. Although the reason in the order for denying such benefits may at first appear erroneous as a matter of law, the deputy clearly indicates in the transcript that he denied temporary benefits because claimant’s condition did not result in a loss of wage earning capacity. In turn, this determination is supported by competent substantial evidence.

The issues raised on cross appeal are without merit except for Point III which needs clarification. The employer and carrier challenge the payment of medical bills, including a hospital bill, for an uncompensable heart condition, pericarditis, which independently accompanied the com-pensable small airways disease. We find that before the diagnosis of the separate diseases, claimant’s combined symptoms caused his initial treatment, his hospitalization, and the need for diagnosis by Dr. Flores. The purpose of the diagnostic process was to determine the cause for the combined and even overlapping symptoms. The after-the-fact determination of causation does not affect the compensability of such diagnostic procedures. See generally, Barris v. Toppers of Florida, Inc., 382 So.2d 441 (Fla. 1st DCA 1980). However, to the extent that Dr. Hoe and Dr. Flores treated claimant’s pericarditis after its diagnosis by Dr. Flores, the medical bills related to this treatment are not reimbursable. If the parties cannot agree to the uncompensable amount, the deputy may take further evidence to make this determination.

The employer and carrier also complain the deputy improperly ordered further treatment by Dr. Barratta, a cardiologist. The record suggests that Dr. Barratta practices with Dr. Flores. However, there’s no evidence that Dr. Barratta treated claimant, that he is qualified to treat claimant’s lung disease, or that claimant requested a change in physicians. We amend this portion of the order to authorize Dr. Flores to further treat claimant for the small airways disease.

Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.

McCORD, SHIVERS and JOANOS, JJ., concur.


author: CAMPBELL, Judge.

text:
    Judy McCLAIN, Appellant, v. STATE of Florida, Appellee.
    No. 80-1540.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 1981.
    Rehearing Denied March 31, 1981.
    Raymond P. Harris, Jr., Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

Judy McClain appeals from an order of the trial court finding her in direct criminal contempt. We find that the court abused its discretion and reverse.

McClain and her fiance, Mr. Overton, were both charged in Pinellas County in connection with an assault against two men. McClain entered a plea to a misdemeanor charge arising out of the incident. Overton was to stand trial on a charge of aggravated assault.

In the case against Overton, McClain was listed as a witness for the state and for the defendant. The state asked to depose McClain, and the defense made her available; however, the state refused to allow Overton to be present during the deposition. The defense objected and moved for a ruling. While the court was considering the matter, the state filed a subpoena for investigation. Under the subpoena, the judge allowed the state to talk to McClain without her counsel being present.

It appears from the record that at some point McClain informed the state that prior to the assault for which she and her fiance were charged, she thought that one of the victims had exposed his sexual organs to her. The state then questioned McClain about an alleged sexual assault against her by a police officer which had occurred the year before. The record does not reveal how the state became aware of this previous alleged assault. McClain refused to identify the officer who had made the assault because of threats against her and her family. The court found that this did not constitute legal cause not to answer and found McClain in direct criminal contempt.

The state attorney argues that he is entitled to the information regarding this 1979 assault as it relates to McClain’s credibility. However, the record does not indicate how this information could be used to impeach McClain under sections 90.608-610, Florida Statutes (1979).

Inquiries into collateral matters should only be allowed when they affect the credibility of the witness. The court in Wallace v. State, 41 Fla. 547, 576, 26 So. 713, 722 (1899), stated:

The rules which should govern the trial court in exercising its discretion in allowing or disallowing inquiries into collateral matters to affect credibility do not authorize any question to be put for the sole purpose of disgracing the witness. The court should disallow all inquiries into collateral matters which do not tend to affect credibility.

We agree with that view.

As there has been no demonstration here that the information sought to be elicited from McClain does affect her credibility, we find that the trial court has abused its discretion.

In holding McClain in contempt, the court seemed to indicate that the answers to the questions propounded by the assistant state attorney for Pinellas County, which McClain refused to answer, might be pertinent to an investigation of a criminal offense of some sort. The questions asked of McClain would not be pertinent to an investigation of the merits of the Pinellas County assault charge against Overton, nor should they properly be part of an investigation into the alleged assault by a police officer in Hillsborough County which had allegedly occurred one year previously. Hillsborough County constitutes another jurisdiction, and the state attorney’s office of that county would be the proper authority to determine whether or not to pursue that alleged offense.

We find that neither of the grounds given by the court for its attempt to compel an answer is valid. The trial court has abused its discretion, and we reverse the order finding McClain in contempt.

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


author: JOANOS, Judge.

text:
    VICTORIA HOSPITAL and Cosmopolitan Mutual Insurance Company, Appellants, v. Braulio PEREZ, Appellee.
    No. TT-440.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1981.
    Rehearing Denied April 15, 1981.

      Steven Kronenberg, of Pyszka, Kessler & Adams, Miami, for appellants.
    Howard Pelzner, of Pelzner, Schwedock & Finkelstein, Miami, for appellee.
   JOANOS, Judge.

In this Workers’ Compensation appeal, the employer and its carrier contest the decision of the deputy commissioner which found the claimant’s knee infection to be causally related to an earlier work-related injury to the same knee. We agree with appellants that the record did not present substantial competent evidence of the relationship and reverse the deputy’s award of temporary total and permanent partial disability benefits as they relate to the knee infection. Since the award of benefits will be altered on remand, the attorney’s fee award will need to be reconsidered also.

At the time of the accident, April 27, 1978, the claimant was a house physician at Victoria Hospital. During a cardiac emergency, the claimant banged his left knee against a bed headboard causing a contusion but no breaking of the skin. The claimant saw Dr. Cullipher for this injury through June 1978, during which time the doctor found no evidence of an infection. The claimant’s knees were also examined on June 20,1978 by Dr. Kalbac who diagnosed pre-existing degenerative arthritis in both knees but, like Dr. Cullipher, did not find any infection.

On October 30, 1978, the claimant was admitted to the hospital where Dr. Ramirez diagnosed a staph infection in both knees, although the left knee’s infection was more severe. The admission report by Dr. Egozi indicated that the claimant gave a history of pain beginning about three months earlier, which would have placed the start of the infection around August of 1978. The claimant was re-hospitalized on March 2, 1979 when Dr. Ruiz found that the left knee had become infected again. The doctor also diagnosed arthritis and destruction of the knee joint.

The doctors were unanimous in the opinion that a staph infection generally takes less than a week to develop, although Dr. Ruiz theorized that under certain conditions (none of which he attributed to the claimant) the infection might take one or two months to develop. In addition, the uncontradicted medical testimony was that such an infection may result from a spread of infection elsewhere, a puncture wound into the knee, or an injection into the knee. There was no evidence that the infection spread from another part of the claimant’s body and no one suggested that the contusion to claimant’s knee in April of 1978 could have directly resulted in a staph infection. The only evidence which tended to show any relation between the bump to the claimant’s knee and the staph infection which was discovered six months later was the testimony of two doctors (Kalbac and Ruiz) that the claimant admitted injecting his own knee. Although Dr. Ruiz causally related these injections to the infection, neither doctor knew the reason for the injections. Since the claimant adamantly denied ever injecting his own knee or receiving any injections, no evidence was presented to connect the presumed injections with the injury of April 1978. In fact, Dr. Kalbac testified that the claimant’s pre-existing arthritic condition was just as likely to have prompted the injections as anything else. The relationship to the claimant’s arthritis in both knees is also more consistent with Dr. Ramirez’ finding of a staph infection in both knees.

Thus, the record in this case is missing a crucial link in the chain of evidence. Medical testimony does support the conclusion that the infection was caused by injections given in the claimant’s knee. The record is void of any evidence, however, to link the injections with the work-related accident. Dr. Ruiz’ opinion on causal relationship is of no value because it was founded on the unproven assumption that the injections were somehow prompted by the claimant’s injury of April 1978. As stated in Arkin Construction Co. v. Simpkins, 99 So.2d 557, 561 (Fla.1957), a “conclusion or opinion of an expert witness based on facts or inferences not supported by the evidence in a cause has no evidential value.” Without any evidence relating the injection to the claimant’s accident, the gap between the infection and the accident could only be bridged by speculation and conjecture. Causal relationship must be supported by competent and. substantial evidence, not mere speculation. City of Jacksonville Police Department v. Hobbs, 246 So.2d 561 (Fla.1971); Simmons v. Stanley, 197 So.2d 514 (Fla.1967).

REVERSED and REMANDED for reconsideration consistent with this opinion.

McCORD and SHIVERS, JJ., concur.


author: BERANEK, Judge.

text:
    CYPRESS COMMUNITY HOSPITAL and Karen Veranko, Appellants, v. Joseph F. AGNITSCH and Dorothea E. Agnitsch, his wife, Appellees.
    No. 79-1325.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 1981.
    Rehearing Denied April 21, 1981.
    Thomas F. Martin of Fowler, White, Burnett, Hurley, Banick & Strickroot, P. A., Miami, for appellants.
    Patrick L. Bailey of Sullivan, Ranaghan, Bailey & Gleason, P. A., Pompano Beach, for appellees.
   BERANEK, Judge.

This is an appeal by the defendant Hospital from a plaintiff’s verdict and judgment in a medical malpractice case. On appeal the Hospital asserts the trial court improperly admitted into evidence the results of a medical mediation panel proceeding. The finding of the panel was that the Hospital was guilty of actionable negligence. On appeal it is asserted that the panel’s findings were void because the panel was without jurisdiction. In addition, the Hospital asserts that plaintiff made an improper golden rule argument to the jury.

We reverse based upon the admission into evidence of the medical mediation panel’s finding. The defendant continually asserted that this was a situation where the hearing before the medical mediation panel had not commenced within six months from the date the claim was filed. Defendant correctly asserted the panel’s jurisdiction had terminated and the findings of the panel should not have been admitted into evidence. Cohen v. Johnson, 373 So.2d 389 (Fla. 4th DCA 1979); Feinstein v. Brown, 370 So.2d 1172 (Fla. 4th DCA 1979); Raedel v. Watson Clinic Foundation, Inc., 360 So.2d 12 (Fla. 2d DCA 1978). We conclude that the admission of the panel’s findings into evidence constituted prejudicial error which requires a new trial.

As to the second point on appeal, we conclude that no proper objection was made and therefore do not reach this issue.

REVERSED AND REMANDED FOR A NEW TRIAL.

MOORE and HERSEY, JJ., concur.

      . The finding of the panel occurred prior to the Supreme Court’s decision in Aldana v. Holub, 381 So.2d 231 (Fla.1980), which was prospecfive only. Hernandez v. Garwood, 390 So.2d 357 (Fla.1980).


author: COWART, Judge.

text:
    Teresa L. WILLARD, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, etc., and Insurance Company of North America, etc., Appellees.
    No. 79-350.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 1981.
    Rehearing Denied April 3, 1981.
    Mel R. Martinez, of Frederick, Wooten & Honeywell, P. A., Orlando, for appellant.
    James 0. Driscoll and Thomas G. Kane, of Driscoll, Langston, Layton & Kane, P. A., Orlando, for appellee State Farm Mutual Automobile Insurance Company.
   COWART, Judge.

The trial court relied on McLellan v. State Farm Mutual Automobile Insurance Company, 366 So.2d 811 (Fla. 4th DCA 1979), to hold that section 627.4132, Florida Statutes (1979), prohibited stacking of uninsured motorist coverages in policies insuring different named insureds. Since that ruling this court has rejected McLellan. Day v. United States Fidelity & Guaranty Co., 388 So.2d 351 (Fla. 5th DCA 1980); Florida Insurance Guaranty Association v. Johnson, 392 So.2d 1348 (Fla. 5th DCA 1980). Accordingly, the order dismissing appellant’s complaint is

REVERSED.

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