text:
    William H. WILLIAMS, Myrtle Williams, Frances Williams, and William H. Williams, as Personal Representative of the Estate of Malcolm Ronald Williams, Deceased, Appellants, v. NEW ENGLAND MUTUAL LIFE INSURANCE COMPANY, a foreign corporation, Gulf Life Insurance Company, a Florida corporation, and Independent Life & Accident Insurance Company, a Florida corporation, Appellees.
    No. AE-495.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1982.

      William F. Daniel, Tallahassee, for appellants.
    Miles Davis of Beggs & Lane, Pensacola, for appellees.
   ERVIN, Judge.

This is an appeal from a final judgment denying coverage under the double indemnity provisions of three life and accidental death policies. We affirm the lower court’s determination holding that no coverage extended to the benefit of the insured as to the Independent Life and Accident Insurance Company on the ground that the policy had expired at the time of decedent’s death. The policy clearly and unambiguously provided that the accidental death and dismemberment portion of the employee group life insurance policy would automatically cease upon the insured’s termination from employment. The lower court apparently found, on conflicting evidence, that the insured was no longer an employee at the time of his death. This finding is supported by competent and substantial evidence.

We affirm also the lower court’s holding as to the Gulf Life policy that the insured was not covered because his wounds were intentionally inflicted by another person. The policy has an express exclusion barring accidental death benefits under such circumstances. Again, there was substantial evidence supporting the lower court’s finding.

The court’s ruling denying the plaintiffs’ requested relief as to their action on the New England Mutual Life Insurance Company policy on the ground that the insured’s death occurred as the result of illness or disease — not accident — requires more extended discussion. New England Life’s coverage excludes accidental death caused directly or indirectly due to a disease, or the insured’s commission of a felony. As to the former, we reverse the lower court’s determination that alcoholism is a disease, but as to the latter, we remand for factual considerations.

Malcolm Ronald Williams, the decedent, had been an alcoholic for many years, succumbing on occasion to hallucinations. At noon on the day of his death, he was driven to his apartment by his brother. He was then sober. The evidence suggests that between noon and late evening he began drinking heavily. Late that night his landlord and landlady were awakened by Williams’ screams, to the effect that someone was trying to break into his apartment. One of the officers who was alerted to the scene remembers that Williams appeared to be intoxicated at the time. Williams’ landlady recalls that his behavior was erratic; he was seen wildly flinging his arms. Nonetheless, he was finally calmed down, and the police departed.

Shortly thereafter, the decedent’s landlady heard six shots. Her husband summoned the police the second time. Upon their arrival, they cautiously approached Williams’ apartment. The landlady later recounted that she heard his door slam shut, making a loud noise; an officer, however, thought that he heard a gunshot. The decedent ran out into the yard swinging his arms about, gun in hand, shouting: “I got them! I got them!” Williams was ordered to halt, but he persisted on his fateful course. Two shots were fired, abruptly terminating Williams’ unhappy life.

The appellants sought to recover from New England Life under the life and accidental death coverages of the policy. New England Life refused to pay the proceeds, arguing that its policy excluded as a risk, accidental death caused by disease or the insured’s commission of a felony. The case went to non-jury trial, and the insurer contended that Section 396.022(1), Florida Statutes (1971), classifies alcoholism as a “disease” within its policy terms. Alternatively, New England Life suggested that the decedent’s death was caused by his commission of the felony of aggravated assault.

In support of these contentions, a police officer testified that if Williams had lived, he would have been charged with aggravated assault. Countering this, the state’s attorney testified that Williams had been determined not to have committed any crime at the time of his death. As to his mental state, evidence was presented showing that the decedent was intoxicated and possibly hallucinating at the time of his death. Williams’ brother stated that he found numerous empty beer cans in the decedent’s apartment the day following his death. An autopsy, moreover, reflected that he had a .27 blood-alcohol rating.

The decedent’s ex-wife, a nurse, stated that Williams in her opinion was definitely an alcoholic. She recounted that he often drank a minimum of a fifth of liquor per day and on occasion hallucinated due to his heavy and prolonged use of alcohol. She related one instance in which Williams had observed non-existent kittens in a closet. From a medical standpoint, as a nurse, she stated that alcoholism is not a disease. A pathologist who testified opined that Williams had been hallucinating. The pathologist posited that alcoholics who are hallucinating appreciate the significance of acts, but are unable to appreciate what they are doing. Further, he viewed alcoholism primarily as a disease. A psychiatrist partly concurred, explaining that one who suffers from alcoholic hallucinosis is temporarily insane. Yet, he did not view alcoholism as a disease, but rather a personality disorder.

Based upon this evidence, the court, without addressing the question of whether coverage should be denied due to the exclusion in the policy relating to persons whose deaths occur during the commission of felonies, found that the decedent’s estate was not entitled to the proceeds of the New England Life policies, because the “disease” of alcoholism contributed to Williams’ death. The lower court specifically noted that Section 396.022, Florida Statutes (1971), states that, as a matter of public policy, alcoholism is a disease. We reverse as to that finding.

The New England Life policy provision bars company liability for death resulting, directly or indirectly, from a disease or infirmity. Section 396.022(1) states that, as a matter of public policy, alcoholism is to be regarded as a disease. Normally, a statute applicable to the insurance policy, which was in force at the time the policy of insurance was consummated, is considered a basic ingredient of the contract, because the law in existence at the time of the making of the contract of insurance forms a part of that contract, as if it were expressly referred to in its terms. National Merchandise Co., Inc. v. United Service Automobile Association, 400 So.2d 526, 531 (Fla. 1st DC A 1981). Our inquiry is directed to the question of whether Section 396.022(1) is material for the purpose of applying the policy exclusion, thereby making it a part of the contract of insurance.

Whether alcoholism is a disease for insurance purposes is a question that cannot be readily answered, although a superficial reading of Section 396.022(1) would seem to indicate that it is. Nevertheless, we note with interest the position taken by the United States Supreme Court in a criminal proceeding:

[T]he inescapable fact is that there is no agreement among members of the medical profession about what it means to say that “alcoholism” is a “disease.” One of the principal works in this field states that the major difficulty in articulating a “disease concept of alcoholism” is that “alcoholism has too many definitions and disease has practically none.” This same author concludes that “a disease is what the medical profession recognizes as such.” In other words, there is widespread agreement today that “alcoholism” is a “disease,” for the simple reason that the medical profession has concluded that it should attempt to treat those who have drinking problems. There the agreement stops. Debate rages within the medical profession as to whether “alcoholism” is a separate “disease” in any meaningful biochemical, physiological or psychological sense, or whether it represents one peculiar manifestation in some individuals of underlying psychiatric disorders.

Powell v. Texas, 392 U.S. 514, 522, 88 S.Ct. 2145, 2149, 20 L.Ed.2d 1254 (1968), reh. denied, 393 U.S. 898, 89 S.Ct. 65, 21 L.Ed.2d 185 (1968) (footnotes omitted; emphasis in original). The opinion persuasively points out that it is really unclear whether alcoholism is a disease. This perception is buttressed by the disparate views attested to at trial below by the decedent’s former wife, who is a nurse, the pathologist, and the psychiatrist. Powell emphasizes that the classification of alcoholism as a disease is often for the express purpose of treatment, rather than punishment.

A careful scrutiny and consideration of Section 396.022, Florida Statutes, reveals that the legislature intended for alcoholics to be treated — not punished by incarceration in the county jail, or placement in the town pillory, as had been the traditional means of public response to the condition of alcoholism. This purpose of the “Comprehensive Alcoholism Prevention, Control, and Treatment Act,” Chapter 396, Florida Statutes, is manifested throughout Section 396.-022. The statute includes a finding that existing laws have not successfully dealt with alcoholism prevention and treatment. See § 396.022(3), Fla.Stat. (1971). It further declares that “[t]he criminal law is not an appropriate device for preventing or controlling health problems. Dealing with public inebriates as criminals has proved expensive, unproductive, burdensome, and futile.” § 396.022(4), Fla.Stat. (1971). The statute calls for handling alcoholics as sick persons. § 396.022(8), Fla.Stat. (1971).

We consider that Chapter 396 was enacted for resolving public health problems — not for insurance purposes. We find support for this view in the title of the enactment effectuating Chapter 396, entitled: “AN ACT relating to public health .. .. ” See Ch. 71-132, Laws of Fla. Although the title of an act is of course not a part of the enactment itself, it is an extremely helpful guide to statutory interpretation and legislative intent. Speights v. State, 414 So.2d 574, 578 (Fla. 1st DCA 1982); Cook v. Blazer Financial Services, 332 So.2d 677, 679 (Fla. 1st DCA 1976). Thus, while Section 396.022(1) may classify alcoholism as a disease, we find, as a matter of law, this classification is for health rather than for insurance purposes.

It is readily apparent that the term “disease,” as used in New England Life’s standard policy, is highly ambiguous, especially when considered against the facts of this ease. If the question were susceptible to a resolution solely upon the conflicting medical testimony, we acknowledge that we would be obliged to sustain the lower court’s finding as there was competent, substantial evidence supporting that determination. Yet, the question is not so simply resolved. We are confronted also with the question of whether the insurer, by the language it employed, intended to include alcoholism within the gamut of excluded risks under the policy. We consider that if New England Life had wished to condition its contractual liability upon the insured’s conformance with certain conduct, or the exclusion of certain risks, it could have done so in clear, unambiguous language. National Merchandise, at 530. Application of the ambiguous terminology to “the facts of the case creates a necessity for an interpretation or choice between two or more possible meanings. When an ambiguity such as this exists in an insurance policy, any uncertainty must be construed against the insurer and in favor of the insured.” U.S. Fidelity & Guaranty Co. v. Helms, 413 So.2d 767, 768 (Fla. 3d DCA 1982); accord, Excelsior Insurance Co. v. Pomona Park Bar & Package Store, 369 So.2d 938, 942 (Fla.1979). Alcoholism is simply not a risk expressly excluded from the New England Life policy, and we reverse as to the lower court’s conclusion to the contrary.

As to New England Life’s alternative argument that the proceeds need not be paid, because the decedent’s death was caused by his commission of an aggravated assault, we have observed that the lower court expressly deferred from ruling on this issue. Since we have • determined appellants’ right to the proceeds by reversing the finding that alcoholism is a disease, we find it necessary to confront New England Life’s alternative argument. Remand of this case will be necessary in order for the court to make a factual finding relating to whether the insured’s death was caused by his commission of an aggravated assault.

As a general rule, one need not be convicted of a felony for one’s estate or beneficiaries to be denied the proceeds of an insurance policy by virtue of a policy clause in which the insurer excludes the risk of death resulting from the insured’s commission of a felony. See Barker v. California-Western States Life Insurance Co., 252 Cal.App.2d 768, 61 Cal.Rptr. 595, 600 (1967), cert. denied, 390 U.S. 922, 88 S.Ct. 855, 19 L.Ed.2d 982 (1968). In the case at bar there is evidence suggesting that the decedent was involved in the felony of aggravated assault at the time of his death due to the police officer’s testimony that the decedent would have been so charged, if he had lived. Of course this testimony conflicted with the state’s attorney’s statement that the decedent was determined by him not to have been committing a felony at the time of his death and would not have been prosecuted by him for such offense had he lived.

In resolving this question, the lower court will need to consider whether the decedent was intoxicated at the time of his death. There is substantial evidence before the court for it to find that the decedent was intoxicated, perhaps even hallucinating, at the time of his death. Aggravated assault is considered a specific intent crime, State v. Shorette, 404 So.2d 816, 817 (Fla. 2d DCA 1981), and voluntary intoxication is a defense to a specific intent crime. Russell v. State, 373 So.2d 97, 98 (Fla. 2d DCA 1979). Consequently, one who is so heavily intoxicated as to be incapable of forming the requisite intent may avoid the application of a clause barring coverage for death or injury occurring due to commission of a crime. IB Appleman, Insurance Law & Practice § 452 (1981); Northwestern Benevolent Society v. Dudley, 27 Ind.App. 327, 61 N.E. 207 (1901). Finally, the policy excludes the risk of death only if there is a causal connection between the death and the insured’s commission of the alleged felony.

Accordingly, we affirm the lower court’s order denying the right of the insured’s estate to the proceeds of the Independent Life and Gulf Life policies. We reverse the final judgment insofar as it bars the appellants’ right to the proceeds from the New England Life policies due to Section 396.-022, Florida Statutes. This case is remanded so that the lower court may determine whether the decedent was involved in the commission of a felony at the time of his death, and if so, whether his death was caused, directly or indirectly, by this act.

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

McCORD and SHAW, JJ., concur.

      . In the paragraph marked “RISKS NOT ASSUMED,” the policy states, “The Company shall in no event incur any liability under this Agreement, if death, even from accidental injury, shall result directly or indirectly, wholly or partly, from any of the following causes: . .. the Insured’s committing or attempting to commit a felony; .. . any disease or infirmity;

      . Section 396.022, Florida Statutes (1971), states in relevant part:
      (1) Alcohol abuse and alcoholism are increasing throughout the country and in Florida. Alcohol abuse can seriously impair health and lead to chronic and habitual aleo-holism. Alcoholism is recognized as an illness or disease that requires attention and treatment through health and rehabilitative services.

      . Contrast Kitchen v. Time Ins. Co., 232 N.W.2d 863, 865 (Iowa 1975) (undefined term “sickness” in insurance policy includes alcoholism; court’s opinion based on a review of numerous cases not involving insurance policy clauses); Poole v. Life & Casualty Ins. Co. of Tenn., 47 Ala.App. 453, 256 So.2d 193 (1971) (trial court correctly rejected jury instruction that alcoholism is a disease, since this is a factual question); Knowlton v. John Hancock Life Mutual Ins. Co., 146 Me. 220, 79 A.2d 581 (Me.1951); and Annot., 61 A.L.R.3d 822 § 20 (1975). Only one case of substance has applied § 396.022. In United States v. Poolaw, 588 F.2d 103, 105 n. 2 (5th Cir. 1979), cert. denied, 440 U.S. 966, 99 S.Ct. 1517, 59 L.Ed.2d 782 (1979), the defendant had requested a criminal jury instruction that, if he was found to be an alcoholic and therefore suffering from a mental disease based on the statute, he should be acquitted, assuming his actions were the product of the disease. Following a prior decision of the court pre-dating the statute, the court rejected this argument because there was no evidence to suggest that alcoholism was a mental disease. The case impliedly rejects the application of the statute to a setting other than that of public health.

      . A number of cases have confronted the issue of the right to recover proceeds when the insured’s policy excluded the risk of death caused in part by the insured’s violation of the law. See, e.g., McCall v. National Life & Accident Ins. Co., 95 Ill.App.3d 737, 51 Ill.Dec. 271, 420 N.E.2d 685 (1981) (insured killed by bullet when he attempted to assist his brother who was being attacked found not to be engaged in commission of a felony); McDaniel v. Country Life Ins. Co., 93 Ill.App.3d 834, 49 Ill.Dec. 260, 417 N.E.2d 1087 (1981) (beneficiaries presented no facts from which it could be inferred that insured’s injury of car passenger during flight from police was anything but criminally reckless, and right to policy proceeds was correctly denied, since insured’s death occurred while “committing an assault or felony.”); Thomas v. First Nat’l. Life Ins. Co., 250 So.2d 42 (La.1971) (violation of a traffic offense resulting in death or injury does not bar recovery of proceeds when policy excludes risk occurring due to “violation of the law”); Standard Life Ins. Co. of the South v. Hinton, 247 Miss. 838, 157 So.2d 486 (1963) (violation of a misdemeanor traffic offense falls within policy exclusion of death due to “violation of the law”); Greer v. Franklin Life Ins. Co., 148 Tex. 166, 221 S.W.2d 857 (1949) (policy excluding risk of death due to “violation of the law” includes case of insured husband being killed by his wife after making a criminal threat to her); contrast Martin v. Mass. Mut. Life Ins. Co., 225 Tern. 56, 463 S.W.2d 681 (1971).


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    Leon S. FIELDS, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AF-250.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1982.
    Leon S. Fields, in pro. per.
    Malcolm S. Greenfield, Gen. Counsel, Fla. Parole and Probation Com’n, Tallahassee, for appellee.
   PER CURIAM

This is an appeal by appellant/inmate from a dismissal of his petition for writ of mandamus, alleging that the Florida Parole and Probation Commission’s establishment of a presumptive parole release date (PPRD) was not correctly determined. We affirm on all points, with the exception of one, which we find requires a remand to the lower court for further findings. Among other things, Fields’ petition for writ of mandamus claimed that the Commission’s final action aggravating his PPRD by 27 months was violative of Florida Administrative Code Rule 23-19.04(l)(h), because the aggravation took into account prior convictions occurring more than ten years before the present offenses of conviction, upon which the Commission based its PPRD.

The rule provides:

(h) Ancient Prior Record: If an offender has maintained a conviction free record in the community (do not credit any time spent in confinement) for a period of 10 consecutive years, convictions or commitments prior to such 10 year period should not be counted for computation of Rule 23-19.04(1), (6). However, this should not be construed as preventing consideration of such behavior as a negative indicant of parole prognosis (i.e., a possible reason for overriding the salient factor score) should the particular circumstances indicate (e.g., repetition of particularly serious or assaultive conduct). Similarly, a substantial crime free period in the community not amounting to ten years, while not removing consideration of convictions prior to such period, may in light of other factors indicate that the subject belongs in a better risk category than the salient factor score indicates.

The aggravation in question merely states: “4. Offender’s salient factor score does not accurately reflect the risk the offender represents in that he incurred four (4) convictions, served two (2) prior prison terms and had his parole revoked during the period 1943 to 1946.” Fields alleges that the aggravation does not comply with the Ancient Prior Record Rule, in that first, the fact that he has remained crime-free for thirty-three years would be a reason to mitigate his PPRD and second, that those convictions were for forgery and auto theft, and bear no relation to the crimes for which he is now incarcerated. The Commission neither disputes nor affirms that the thirty-three-year-old convictions bear no relation to the present crimes. No documentary evidence was submitted to the lower court or to this Court.

The Commission has a statutory duty to specify with individual particularity the reasons for going outside the matrix time-frame to aggravate or mitigate. § 947.172(2), Fla.Stat. (1979). See also, Richardson v. FPPC, 417 So.2d 727 (Fla. 1st DCA 1982); Jacobson v. FPPC, 407 So.2d 611 (Fla. 1st DCA 1981); Battis v. FPPC, 386 So.2d 295 (Fla. 1st DCA 1980); and Baker v. FPPC, 384 So.2d 746 (Fla. 1st DCA 1980). It appears that under the Ancient Prior Record Rule the Commission must further state with individual particularity the circumstances that indicate the old crimes are appropriate aggravations. This the Commission has not done.

Accordingly, this cause is remanded to the trial court for the purpose of conducting further proceedings to determine whether the Commission inappropriately aggravated the PPRD by its consideration of certain convictions when the particular circumstances in Fields’ case do not reveal the old crimes are a negative indicant of parole prognosis. If the Commission is unable to show that the particular circumstances indicate that the thirty-three-year-old crimes should be used to aggravate Fields’ PPRD, then the lower court is directed to grant the petition for writ of mandamus in part by striking the twenty-seven-month aggravation.

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

ERVIN, SHIVERS and WENTWORTH, JJ., concur.

      . If the petition for writ of mandamus were filed after appellant had been placed on notice of our opinion in Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981), we would have dismissed the appeal due to appellant’s failure to exhaust administrative remedies.

      . Amended effective September 10, 1981. See Fla.Admin.Code Rule 23-21.07(l)(h).


author: PER CURIAM.

text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. Steven HUBER, Appellee.
    No. AG-445.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1982.
    Wendell J. Kiser, and W. Michael Miller, of Akerman, Senterfitt & Eidson, Orlando, for appellant.
    Bruce W. Jacobus, of Wolfe, Kirschen-baum, Caruso, Mosley & Kabboord, P.A., In-dialantic, for appellee.
   PER CURIAM.

Appellant seeks review of a workers’ compensation order awarding, among other benefit's, total temporary disability benefits for the period from August 13, 1980, through February 7, 1981. We modify the order below and affirm as modified.

On December 26,1979, claimant sustained an industrial injury arising out of the course and scope of his employment with appellant. In order to demonstrate entitlement to total temporary disability benefits, appellant must present medical testimony that he is unable to work, or evidence that he made an adequate work search or a concerted effort to return to work. Tallahassee Coca Cola Bottling Company v. Parramore, 395 So.2d 275 (Fla. 1st DCA 1981). The record reveals no medical evidence of the inability to return to work and an inadequate basis to sustain a finding of a good faith work search or a concerted effort to return to work. The other points presented do not require reversal. Accordingly, the order below is modified disallowing the award of total temporary disability benefits for the challenged period. The order as modified is affirmed.

McCORD and MILLS, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge, concur.


author: MILLS, Judge.

text:
    James A. MATHIS, Appellant, v. STATE of Florida, Appellee.
    No. AH-106.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1982.

      James A. Mathis, pro se.
    No appearance for appellee.
   MILLS, Judge.

In this appeal from the trial court’s denial of his motion for post-conviction relief made pursuant to Rule 3.850, Florida Rules of Criminal Procedure, Mathis contends that he was denied effective assistance of counsel and that the trial court lacked jurisdiction over the case. We affirm.

Mathis raised the issue of ineffective assistance of counsel in a previous 3.850 motion which he failed to timely appeal, resulting in its dismissal. He is, therefore, precluded from raising this issue again.

The contention that the trial court lacked jurisdiction over the case because it did not find sufficient facts to show that the crime was committed in Leon County is without merit. That argument goes not to jurisdiction, but to venue. Venue may be waived; jurisdiction may not. Lane v. State, 388 So.2d 1022 (Fla.1980). Any objection Mathis might have had to venue in Leon County was waived by his plea of guilty.

AFFIRMED.

ERVIN and WIGGINTON, JJ., concur.


author: LARRY G. SMITH, Judge.

text:
    Andrew L. MOATS, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AI-253.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1982.
    Andrew L. Moats, in pro. per.
    Malcolm S. Greenfield, Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for appellee.
   LARRY G. SMITH, Judge.

Moats appeals the December 4,1981 order of the Commission extending his presumptive parole release date (PPRD) from January 9, 1983 (the date established by the Commission at a meeting August 12, 1981), to July 30, 1987. Appellant urges that in extending his PPRD the Commission violated various statutory provisions which provide, essentially, that a PPRD, once established, is binding upon the Commission except for good cause in exceptional circumstances (Section 947.173(3)), or for reason of institutional conduct or the acquisition of new information not available at the time of the initial interview (Section 947.16(4)). In defense of its actions, the Commission urges that notwithstanding its prior determination of a PPRD (which, incidentally, it modified pursuant to a Section 947.173 review, establishing a new PPRD of August 9, 1981), it retained authority to reject the PPRD previously established by it on the authority of Section 947.18, Florida Statutes. We find it necessary to reverse and remand for further proceedings.

This court has recently interpreted and considered the effect of Section 947.18 in relation to the other provisions of the Objective Parole Guidelines Act, Chapter 947, Florida Statutes (1978). Gobie v. Florida Parole and Probation Commission, 416 So.2d 838 (Fla. 1st DCA 1982). The Gobie decision, while recognizing the authority of the Commission, in its discretion, to override or amend a PPRD established in accordance with the guidelines, required the Commission to explicate the reasons for- its actions “in a manner sufficient to permit judicial review for a determination of whether the Commission has overreached the legislative grant of discretion provided in the Objective Parole Guidelines Act.” Id. at 840.

Here, the Commission has “explicated its reasons” for extending petitioner’s PPRD, to an extent. However, it has failed to point out, specifically, whether any of the circumstances given in explanation of its action were based on “newly acquired information” (Section 947.16(4), Rule 23-21.15(5), Florida Administrative Code), or if not, whether there was “good cause in exceptional circumstances” (Section 947.-173(3)) for the Commission’s action in establishing a PPRD beyond the date arrived at by use of the Guidelines. We have noted, of course, that the Commission’s guideline-calculated date of August 9, 1981 had already passed before the meeting at which it was determined (November 12, 1981). This had the effect of short-circuiting the parole release date interview procedure (Section 947.174, Florida Statutes; and Rule 23-21.-15, Florida Administrative Code), which provides for a hearing examiner to interview the inmate and recommend an effective parole release date.

As above shown, the critical point at which the Commission was required to determine an effective parole release date was prematurely reached, albeit by accident rather than design. Nevertheless, it became incumbent upon the Commission to act. There appears to be no abuse of discretion in the Commission’s determination not to allow petitioner’s PPRD (already passed) to become his effective parole release date. Under the circumstances, it may be argued that the setting of a new PPRD, based upon the Commission’s inability to make the findings necessary for a parole release under Section 947.18, was the only alternative available to it. On the other hand, it may be more reasonably argued that, notwithstanding the inability to comply with the time limits prescribed for the parole release date interview (see above), both the petitioner and the Commission would have been better served, and the disposition of the case brought more closely into conformity with the statutes and the rules, if the Commission had referred the matter to a Hearing Examiner for interview and recommendations to the Commission, pursuant to Section 947.174 of the statutes, and Rule 23-21.15.

We have noted petitioner’s argument that the Commission’s action amounts to the setting of no PPRD, since his sentence will expire before arrival of the new PPRD in 1987. This fact is of no signifi-canee in itself, however, as there is no prohibition against the establishment of a PPRD beyond the inmate’s sentence expiration date. It is clear that the setting of a new PPRD was error, because it was not done in accordance with the Objective Parole Guidelines Act. We concede, however, that since the PPRD actually set fell beyond petitioner’s sentence expiration date, the label attached is immaterial, and the result would have been the same had the Commission simply declined, under the authority of Section 947.18, to approve an effective parole release date for the duration of petitioner’s sentence. It is noted, further, that future parole consideration by the Commission has not been foreclosed, because the Commission has also ordered that petitioner shall be reinterviewed during the month of November, 1982, which has the effect of placing petitioner back within the guidelines.

No doubt there would have been far less confusion had the Commission utilized certain of the factors it listed in its explanation of its most recent order as aggravating factors in its initial PPRD determination. For example, petitioner’s previous parole violation is unquestionably a factor “related to likelihood of parole outcome,” and would be a “negative indicant.” Rule 23-21.10, Florida Administrative Code. Nevertheless, for unexplained reasons, the Commission failed to do so. The Commission has also failed to satisfactorily explain the basis upon which it effectively disregarded its previously established PPRD, although pri- or decisions of this court have carefully emphasized that changes are permitted “only under narrowly circumscribed conditions.” Bizzigotti v. Florida Parole and Probation Commission, 410 So.2d 1360, 1362 (Fla. 1st DCA 1982), and cases therein cited. Therefore, without suggesting any further limitation on the Commission’s authority under Section 947.18 than previously expressed in Gobie, supra, it becomes necessary to reverse and remand to the Commission for further explanation of its action.

Although the result we have reached may appear to require the Commission to engage in a useless exercise, under established principles of administrative law as previously expounded by this court, nothing less will suffice. This is especially so in this case where, for all the record shows, no event of any consequence occurred subsequent to the Commission’s initial determination of petitioner’s PPRD, except for his request for review under Section 947.173. The very least that petitioner, and any other inmate should be entitled to, is an explanation of the Commission’s failure to notice, upon their initial review, the matters it now considers to be of such grievous nature as to nullify its previous action.

Finally, although this court denied the Commission’s motion to dismiss the instant appeal for failure to exhaust administrative remedies, that action was taken prior to the Gobie decision. We now hold, consistent with Gobie, that the petitioner is entitled to, and shall be required to seek review of the Commission’s further action prior to seeking review in this court.

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

      . See, Canter v. Florida Parole and Probation Commission, 409 So.2d 277 (Fla. 1st DCA 1982).

      . See, McKahn v. Florida Parole and Probation Commission, 399 So.2d 476 (Fla. 1st DCA 1981).

      . Section 947.18 “Conditions of parole” provides, in pertinent part: “No person shall be placed on parole until and unless the Commission shall find that there is reasonable probability that, if he is placed on parole, he will live and conduct himself as a respectable and law-abiding person and that his release will be compatible with his own welfare and the welfare of society.”.

      . The Commission found the following circumstances sufficient to prohibit the granting of an effective parole date: Recent escape from custody (August 23, 1980); previous conviction for Willful Failure to Appear and sentence of three years; when apprehended after his August, 1980 escape, petitioner was in possession of and driving a vehicle, in the trunk of which was found a rifle with a scope, ammo clip, and unspent bullets; petitioner is a previous parole violater; petitioner has prior convictions for breaking and entering and drug charges; and petitioner also has an active commitment, and was sentenced July 30, 1979, for Possession of Controlled Substance, Ionomine.

      . It is significant that the Commission, at its meeting August 12, 1981, disapproved a hearing examiner’s recommendation for a PPRD of June 8, 1982, and established appellant’s PPRD at January 9, 1983. This date became “established” in our view, within the meaning and intent of Section 947.173(3), Florida Statutes. It was only after appellant filed his request for review, under Section 947.173, that the Commission took the action complained of here. Appellant makes the assertion, which is unre-futed by the Commission in its presentation in this court, that at the time the Commission extended his PPRD to a date in 1987 it had no new information, appellant had received no disciplinary reports during his incarceration, and all of the information which was in appellant’s file at the time of the hearing was available at the time of the initial interview.

      . Section 947.174(6)(a), which outlines the final steps in the process of establishing an effective parole release date, provides that sixty days prior to the presumptive parole release date, a hearing examiner shall conduct a final interview to establish an effective parole release date, and within fourteen days, a panel of no fewer than two commissioners “shall determine whether or not to authorize the effective parole release date. ...” To the same effect, see Rule 23 21.15(4), Florida Administrative Code. Subparagraph (3), of the same rule contains the additional requirement that the hearing examiner shall inform the Commission if “new information, either favorable or detrimental,” was discovered at the interview which might affect the presumptive parole release date.

      . Holston v. Florida Parole and Probation Commission, 394 So.2d 1110 (Fla. 1st DCA 1981).

      . Anheuser-Busch, Inc. v. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981); McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), appeal after remand, 361 So.2d 199.

      . We do not imply that the Commission exacted a penalty for petitioner’s exercise of his right to review by extending his PPRD. However, the timing of the Commission’s decision to deny parole gives further cause for insisting upon adequate reasons for its action. See, Bizzigotti v. Florida Parole and Probation Commission, supra.


author: WENTWORTH, Judge.

text:
    PINEBREEZE FARMS, INC., & Florida Farm Bureau, Appellants, v. Toni V. MORAN, Appellee.
    No. AI-295.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1982.

      Lamar D. Oxford, of Dean, Ringers, Morgan & Lawton, Orlando, for appellants.
    Irvin A. Meyers, of Meyers, Mooney, Adler & Hammond, Orlando, for appellee.
   WENTWORTH, Judge.

Employer/carrier appeal a workers’ compensation order which we affirm except insofar as the order awards benefits for disability occasioned by surgery not attributable to the industrial injury.

Claimant sustained an industrial injury which was diagnosed as an acute lumbar strain. A subsequent physical examination also revealed an unrelated ovarian cyst, which was later found to be so enlarged as to require surgery. Pathological examination of the cyst after surgery showed that it had not ruptured, and substantiated an enlargement due to hormonal imbalance independent of the industrial injury. This medical testimony is uncontradieted and establishes that the hormonal imbalance and enlarged cyst were unrelated to claimant’s industrial accident and injury. Neither the order nor record evidence relates claimant’s temporary gynecological symptoms at the time of her accident to her later condition, by aggravation or otherwise.

Claimant’s industrial injury precluded her return to her former employment, but she was able to obtain part-time employment subsequent to her industrial accident. She necessarily ceased such employment during her hospitalization for and recovery from the surgical removal of her cyst, and the evidence establishes that her inability to continue that employment was due exclusively to the non-industrial cause. Claimant is therefore not entitled to workers’ compensation benefits for that disability from the time of her hospitalization on January 5, 1981, to her ultimate surgical recovery on February 8, 1981, since her compensable injury did not contribute to such disability.

We find an adequate record basis for the deputy’s resolution of other evidentiary issues raised by appellants as to temporary benefits during a period of vocational rehabilitation, and as to the necessity for finding permanent impairment in accordance with the AMA Guides as a predicate for permanent wage loss benefits. On the latter point we note the absence of any such specifically articulated defense before the deputy. See The Wash House v. Tucker, 413 So.2d 813 (Fla. 1st DCA 1982).

The order appealed is accordingly amended so as to delete the award of temporary disability benefits between January 5, 1981, and February 8, 1981. As amended, the order appealed is affirmed.

BOOTH and WIGGINTON, JJ., concur.


author: ERVIN, Judge.

text:
    Harold COWICK, Appellant, v. STATE of Florida, Appellee.
    No. AK-307.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1982.

      Harold Cowick, in pro. per.
    No appearance for appellee.
   ERVIN, Judge.

Appellant Harold Cowick’s motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 does not meet the minimal requirements of the rule for review. For example, the motion does not set forth: (1) whether an appeal from the judgment or sentence was filed and if so, the disposition thereof, or (2) whether previous post-conviction relief motion^) were filed and if so, how many. See Fla.R.Crim.P. 3.850(b), (c). Consequently, the motion is deficient. We affirm the lower court’s denial of the motion, but we do so without prejudice to appellant’s refiling of the motion in proper form. Scott v. State, 364 So.2d 67 (Fla. 4th DCA 1978); accord, Brooks v. State, 386 So.2d 872 (Fla. 1st DCA 1980).

MILLS and WIGGINTON, JJ., concur.


text:
    In re The Interest of J.A.R. and J.L.R., Children. Lenette RALSTON, Appellant, v. FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. AK-385.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1982.
    James H. DeAtley, Gulf Breeze, for appellant Lenette Ralston.
    Jim Smith, Atty. Gen., and Eric J. Taylor, Asst. Atty. Gen., Tallahassee, for appellee Florida Dept, of Health and Rehabilitative Services.
   PER CURIAM.

This is an appeal from an order of the circuit court adjudicating two of appellant’s minor children dependents. The sole issue which warrants summary discussion pertains to appellant’s contention that the court erred in denying her motion to suppress photographs which were seized during a search conducted pursuant to a search warrant for a handgun. The basis of that denial was the court’s conclusion that Florida’s constitutionally embodied exclusionary rule does not apply in dependency proceedings. Although we recognize that the issue raised is one of first impression, it need not be resolved herein because we find that the search of which appellant complains was not an unreasonable one requiring invocation of the rule, if applicable. Accordingly, the order is affirmed.

McCORD, BOOTH and WENTWORTH, JJ., concur.


text:
    Mel SUMMERLIN, Appellant, v. LAMAR ADVERTISING OF PENSACOLA, INC., Appellee.
    No. AL-407.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1982.
    J. John Westberry of Cohen & Westberry, P.A., Pensacola, for appellant.
    P. Michael Patterson, Pensacola, for ap-pellee.
   MILLS, Judge.

Summerlin appeals the trial court’s grant of a preliminary injunction against him. We affirm.

As part of his employment contract with Lamar Advertising, Summerlin signed a covenant not to compete within a 50-mile radius for a period of two years following the termination of his employment with Lamar. When Summerlin subsequently became employed by Mott Signs, Lamar sought a temporary restraining order for violation of the covenant. The temporary restraining order was granted and remained in effect until 2 April 1982, at which time a hearing was held. After the hearing, the trial court on 7 April 1982 extended the terms of the temporary restraining order until further court order, and on 23 April 1982, the trial court entered the amended preliminary injunction from which Summerlin appeals.

Summerlin complains that the petition for the temporary restraining order failed to comply with the requirements of Rule 1.610(b), Florida Rules of Civil Procedure. Because the temporary restraining order by its own terms lasted only until 2 April, this complaint is moot.

He also contends that the complaint did not sufficiently allege irreparable harm, one of the essential elements of a preliminary injunction. Wilson v. Sandstrom, 317 So.2d 732 (Fla.1975). However, paragraph 7 of the complaint alleges that “the damages that Plaintiff will sustain cannot be determined and compensated for in an action at law.” Such an allegation is sufficient. Puga v. Suave Shoe Corp., 374 So.2d 552 (Fla. 3d DCA 1979).

Summerlin further contends that Lamar has an adequate remedy at law by virtue of the liquidated damages provision in paragraph 6 of the employment agreement. This contention is incorrect. Paragraph 6 prohibits the solicitation of customers or site lessors of Lamar or the employing of any of Lamar’s present employees for a period of two years. On the other hand, paragraph 5 prohibits Summerlin from becoming an employee of any of Lamar’s competitors within a 50-mile radius for a period of two years. Because it is paragraph 5 that Summerlin has allegedly breached, the liquidated damages provision of paragraph 6 is inapplicable.

Injunction is an appropriate remedy for breach of a covenant not to compete. Miller Mechanical, Inc. v. Ruth, 300 So.2d 11 (Fla.1974). The grant of a temporary injunction is a matter within the discretion of the trial court. Northwestern National Insurance Co. v. Greenspun, 330 So.2d 561 (Fla. 3d DCA 1976).

AFFIRMED.

ERVIN and WIGGINTON, JJ., concur.


author: DANAHY, Judge.

text:
    STATE of Florida, Appellant, v. Deborah Darlene FORBES, Appellee.
    No. 81-1712.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    Ted A. Lasseigne of Reilly & Lasseigne, Haines City, for appellee.
   DANAHY, Judge.

The state appeals from an order of the trial court granting Deborah Forbes’ motion to suppress evidence. We reverse.

Two law enforcement officers testified at the suppression hearing. Officer Godbee testified that he arrested Forbes for petit theft of certain articles from a Goodwill box. At the time of arrest, Forbes’ purse was in the front seat passenger side of her vehicle. Officer Godbee removed the purse and carried it with him as he took Forbes to the police station.

At the station, Officer Godbee placed the purse on a table in the booking room and then watched Deputy Sheriff Myers inventory its contents. As part of the standard inventory procedure for the Highlands County Jail, Myers examined the purse to remove and secure valuables and to prevent contraband from entering the jail. He asked Forbes if she had any valuables in her purse, and she said that she had money in her wallet. Myers removed the wallet and asked her if the purse contained any other valuables, and she said “no.” Still following standard inventory procedures, Myers continued to remove and examine the contents of the purse. When he found a small gray purse inside this larger purse, he unzipped it and discovered marijuana and quaaludes. As a result, the state charged Forbes with possession of controlled substances as well as petit theft.

An inventory search is a recognized exception to the requirement of a warrant as long as it is conducted in accordance with standard police procedure. Where such a search is used as a pretext to seize evidence illegally, that evidence will be suppressed. Hicks v. State, 398 So.2d 1008 (Fla. 1st DCA 1981). Here, unlike Hicks, the record discloses nothing indicating a pretextual search proscribed by the fourth amendment.

In Carl v. State, 160 Ga.App. 464, 287 S.E.2d 379 (Ct.App.Ga.1981), the police arrested Angela Carl following an automobile accident. Once at the station, the police inventoried her purse in accordance with standard police booking procedures. During this inventory, the officer opened a wallet inside the purse and discovered a quaalude pill. The court concluded that “the police were not conducting a search, but were following standard inventory procedures, as they were required to do by police rules.” 160 Ga.App. at 465, 287 S.E.2d at 380.

The facts in the instant case are remarkably similar to those in Carl. Clearly, once a person is lawfully arrested and taken into custody, the police may, as part of their standard booking procedure, inventory the arrested party’s personal effects and remove evidence discovered during the course of this examination. United States v. Rega, 496 F.Supp. 101 (S.D.N.Y.1980). See also State v. Brown, 291 Or. 642, 634 P.2d 212 (1981); State v. Hawkins, 7 Wash.App. 688, 502 P.2d 464 (Wash.Ct.App.1972).

An individual’s personal effects have been defined to include a wallet, United States v. Ziller, 623 F.2d 562 (9th Cir. 1980), and, more important for our purposes, a woman’s purse, Stewart v. State, 611 S.W.2d 434 (Tex.Cr.App.1981); Rega, supra. As the Stewart court noted, “As a matter of common usage, a purse is an item carried on an individual’s person in the sense that a wallet or items found in pockets are . .. . ” 611 S.W.2d at 438.

Accordingly, because Deputy Myers discovered the contraband in the purse while conducting a standard inventory search as part of the booking proceedings of an arrestee, the trial court erred in granting the motion to suppress.

REVERSED.

RYDER, A. C. J., and SCHOONOVER, J., concur.


text:
    Willie J. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 81-1989.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 1982.
    Jerry Hill, Public Defender, Bartow, and Gregory E. Like, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the appellant’s conviction and sentence. The sentence fails to reflect credit for time served. Accordingly, we remand for correction of the sentence only. Appellant need not be present.

OTT, C. J., and HOBSON and CAMPBELL, JJ., concur.


author: SCHOONOVER, Judge.

text:
    In re The ESTATE OF Lois MUELLER, Deceased.
    No. 81-2298.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 1982.
    Rehearing Denied Oct. 25, 1982.
    Ladd H. Fassett of Pleus, Adams, Fassett & Divine, P. A., Orlando, and Jack 0. Hack-ett, II of Farr, Farr, Haymans, Moseley & Emerich, Punta Gorda, for appellants.
    Robert E. Pyle, Lake Alfred, and Thomas W. Garrard, Punta Gorda, for appellees.
   SCHOONOVER, Judge.

This is an appeal from a judgment holding that homestead property that was ineffectively devised in a will did not become part of the testator’s residuary estate and, therefore, descended to the testator’s spouse and adult children pursuant to section 731.-27, Florida Statutes (1973). We affirm.

In 1964, John C. Mueller and Lois Mueller, his wife, built a home on a lot that was owned at all times pertinent to this appeal by Mr. Mueller, individually. From that time until his death the property constituted Mr. Mueller’s homestead within the meaning of article X, section 4(c) of the Florida Constitution.

Mr. Mueller died testate on October 31, 1975, leaving his wife, Lois Mueller, (now deceased) and his two adult children by a previous marriage, William L. Mueller and Blanche L. McDonald, appellees, as his heirs.

Items 4 and 5 of Mr. Mueller’s will provided as follows:

ITEM 4. I will, devise and bequeath all of my real estate to my wife, LOIS MUELLER, for her lifetime and at her death to my children WILLIAM L. MUELLER and BLANCHE L. MCDONALD in equal shares. If either of the above shall predecease me and/or my said wife, I will, devise and bequeath his or her share to my surviving child.
ITEM 5. I will, devise and bequeath all of the rest and residue of my estate to my beloved wife, LOIS MUELLER, the same to be hers absolutely and in fee simple.

After Mrs. Mueller’s death, intestate, on March 2,1980, a dispute over the ownership of the homestead property arose between her heirs at law and Mr. Mueller’s children.

All interested parties entered into an agreement to sell the property and hold the proceeds in escrow pending a court determination of the effect of Mr. Mueller’s will upon title to the property.

The trial court entered an order holding that the specific devise of the homestead property contained in Item 4 of Mr. Mueller’s will was not valid and that upon his death the property descended to Lois Mueller for life with the remainder to William L. Mueller and Blanche L. McDonald, appel-lees.

The appellants, four of Mrs. Mueller’s five heirs at law, filed this appeal from that order.

All parties agree that the specific devise of the homestead under Item 4 of the will was void because the Florida Constitution prohibits a testator from devising less than a fee simple interest in homestead property to his surviving spouse. In Re Estate of Finch, 401 So.2d 1308 (Fla.1981).

The appellants contend that since the devise was void, the homestead property became a part of the residuary estate pursuant to section 731.20, Florida Statutes (1973), and under Item 5 of Mr. • Mueller’s will a fee simple estate in the property was devised to Mrs. Mueller.

The appellees contend that since the devise was void, the property descended to them pursuant to section 731.27.

We agree with the appellees.

Homestead property can be devised in a residuary clause of a will. Estate of Murphy, 340 So.2d 107 (Fla.1976). However, in the case sub judice the property never became part of the residuary estate and therefore descended pursuant to section 731.27.

Section 731.20(2) provides:

If a legacy or devise is void or lapses, it shall become a part of the residuum and shall pass to the residuary legatee or dev-isee unless a contrary intent is expressed by the testator in his will.

Mr. Mueller expressed a clear intent to leave his wife a life estate in his homestead property and not a fee simple estate which would result if the property were to become a part of the residuary estate. Because of the constitutional limitations upon the devise of homestead property, his intent was frustrated. However, even though the devise was ineffective, his intent was not contrary to the law or public policy and, therefore, it is our duty to insure that his intent is carried out. State v. North, 159 Fla. 351, 32 So.2d 14 (1947).

We accordingly hold that the intent expressed in Item 4 of Mr. Mueller’s will was a sufficient expression of his intent to prevent the property from becoming a part of his residuary estate pursuant to section 731.20(2) and that the property descended to the appellees pursuant to section 731.27.

Affirmed.

OTT, C. J., and GRIMES, J., concur.

      . Section 731.27, Florida Statutes, reads as follows:

        Descent of homesteads. The homestead shall descend as other property; provided, however, that if the decedent is survived by a widow and lineal descendants, the widow shall take a life estate in the homestead, with vested remainder to the lineal descendants in being at the time of the death of the decedent.


author: HOBSON, Judge.

text:
    BOARD OF COUNTY COMMISSIONERS OF PINELLAS COUNTY, as the Pinellas County Water and Navigation Control Authority, Petitioner, v. J. Scott FORD, Respondent.
    No. 82-383.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 1982.
    Steven M. Seibert, Asst. County Atty., Clearwater, for petitioner.
    Howard P. Ross of Battaglia, Ross, Hastings, Dicus & Andrews, St. Petersburg, for respondent.
   HOBSON, Judge.

Petitioner, Board of County Commissioners of Pinellas County, acting as the governing authority of the Pinellas County Water and Navigation Control Authority (Authority), seeks a writ of certiorari to reverse the appellate order of the Circuit Court for Pinellas County which directed that the Authority grant the revised private dock permit application of J. Scott Ford (Ford), respondent. We grant certiorari and reverse.

Ford owns a lot in the City of St. Peters-burg on a peninsula known as Maximo Moorings Unit Eighteen. The peninsula is bordered on the south by the approximately 200-foot wide Maximo Moorings Marina Channel (waterway) and on the north and west by Boca Ciega Bay. At the east end of the waterway is the Maximo Moorings Marina and at the west end is the bay.

Ford filed a private dock permit application with the Authority in mid-September, 1980, requesting permission to build a dock and boat-slip structure which would extend 70 feet into the waterway from the portion of the seawall bordering his upland lot. The Director of Public Works and Utilities, Gene Jordan, submitted a letter of objection on the basis that the proposed structure would constitute “an obstruction to navigation.” Ford filed a revised application in early October, 1980, requesting a permit for a dock and boat-slip structure which would extend 50 feet into the waterway.

After duly notifying all interested parties, the Authority held a public hearing on Ford’s revised application. The Authority’s Minutes Book and File reveal the following:

Speaking in opposition to the application, Victor Kauffman, dock master of the marina, noted that the southern edge of the waterway is not bordered by a seawall, as is the northern, and that, due to tides and currents, the boating channel within the waterway runs through the north side (Ford’s side) of the waterway. He stated that the proposed structure would present navigational problems. In support of his position, he remarked that the waterway is heavily traveled because the marina contains about 500 boat facilities and several boat businesses. Also, he presented photographs and a letter of objection from the marina’s master mariner.

Gene Jordan, with the aid of illuminated slides, compared Ford’s original 70-foot proposed structure with his revised 50-foot proposed structure. He emphasized that boat-slip tie poles in the waterway are generally situated 30 feet or less from the north seawall. Further, he stated that shoaling exists in the waterway.

Brian Curtis, a retired United States Coast Guard officer and owner of property on Ford’s side of the peninsula, concurred with Kauffman that the proposed structure would pose a hazard to boating safety. In support of his conclusion, he commented that many boats, some with 20 to 24-foot beams, transit the waterway. He observed that numerous individuals in small boats who use the waterway have little knowledge of boating skills. Also, he noted that the waterway is subject to shoaling, tides and currents.

Judd Beckoff, an owner of property on the southern side of the peninsula, stated that the waterway is one of the most heavily traversed in the City of St. Petersburg. He predicted that the proposed structure would create a dangerous bottleneck for boaters. Several other local property owners voiced opposition to the revised application. One local couple mailed in a letter of objection.

Ford’s attorney, speaking in support of the requested structure, observed that the proposed structure would leave open an 100-foot wide and 5-foot deep passageway, in conformity with the only plat restrictions on his client’s lot that he leave open a minimum 80-foot channel. He added that there would be a 4-foot depth at the end of the proposed dock at low tide which he said would ensure an absence of problems for large boats passing by.

Ford himself stressed that the proposed structure was in compliance with not only his lot deed restrictions, but also the Authority’s rules and the City of St. Peters-burg’s zoning ordinances. He submitted a petition containing the signatures of thirty local residents who favored the proposed construction.

The City of St. Petersburg had approved the revised application; the Authority’s engineering department had recommended approval of the revised application; and the United States Army Corps of Engineers had considered the proposed structure reasonable. Also, the northern boat markers are 72 feet from the north seawall: 22 feet beyond the southern end of the proposed 50-foot structure.

At the conclusion of the hearing, the Authority decided to defer a decision on the matter of the application for a six-month period in order that concerned parties could impress upon the City of St. Petersburg its “responsibilities” to build a seawall on the southern edge of the waterway (in order to help prevent further shoaling) and to dredge the waterway.

Six months later, in April, 1981, the Authority resumed the public hearing. The minutes do not indicate whether the City of St. Petersburg in the interim had agreed to construct a southern seawall or to dredge the waterway. However, they show that the Authority’s engineering department now recommended a denial of the application based on the restrictive nature of the waterway and the hindrance to navigation which the proposed structure would create. Also, another local property owner appeared and stated that the proposed structure would be a hazard to navigation. But Joe Batchelor of the Army Corps of Engineers pointed out that the proposed 50-foot structure would be within the Corps’ guidelines which limit structures to not over one-quarter the width of a waterway in order to ensure safe navigation.

The Authority denied Ford’s application. The parties concede that it denied the application on the ground that the proposed structure would pose navigational problems. Ford appealed to the circuit court and presented a two-fold argument: first, that the Authority lacked the legislative authority to consider navigational problems as a factor in regulating dock construction; and, second, that the Authority’s denial on the ground that the proposed structure would interfere with navigation was not supported by competent substantial evidence. The court, after reviewing the Authority’s enabling legislation, chapter 31182, Laws of Florida (1955), rejected Ford’s first contention. However, after reviewing the evidence, it accepted his second assertion. Thus, it reversed the Authority’s denial and remanded with directions that the Authority grant the permit. The Authority now petitions from the court’s order that its denial was not based on substantial competent evidence. Ford, meanwhile, presents the same two arguments he asserted before the circuit court.

A review of the Authority’s enabling legislation leads us to reject Ford’s contention that the Authority lacks the authority to deny a private dock permit application based on navigational aspects. Section 2 of chapter 31182 reveals that the legislature created the Authority

[i]n order to provide for adequate regulation and control of all water, water courses, waterways . . . and to aid and assist boating activities and navigation

Section 18, meanwhile, as amended by chapter 72-664, Laws of Florida (1972), states that the provisions of the Act

shall be liberally construed in order to effectively carry out its purpose of protecting the public’s interest ....

In order to analyze Ford’s argument, it is necessary to examine sections 8 and 10. Section 8, as amended by chapter 72-664 and chapter 78-602, Laws of Florida (1978), states that persons and entities desiring to dredge, pump sand, extend lands, construct or extend islands creating obstructions in, on, or under any of the county’s navigable waters shall apply to the Authority for a permit. Subsection (e), denoted subsection (d)l by the 1972 changes, states that “in order to prevent undesirable situations” the Authority shall obtain data and hear testimony so as to determine, among other things:

a. The effect of the proposed plan or development on the use of said waters in said county for transportation and recreational or other public purposes and public conveniences.
b. The effect of the proposed plan or development on the free use of the waterways and navigable waters.

Subsection (d)8 says that the Authority shall deny the permit application if it finds that the proposed plan or development adversely affects any of the rights or interests of the public.

Section 10, however, provides in whole [t]hat the aforementioned provisions of Section 8 shall not deny the right of any upland owner to construct a dock or wharf in front of his upland as provided by the laws of this state, but said Authority may make reasonable rules and regulations for the construction thereof in order to carry out the provisions and intent of this section.

Ford contends that the Authority lacks the authority to deny a dock application based on navigational criteria because section 10 says the Authority may establish rules and regulations “in order to carry out the provisions and intent of this section ” (emphasis Ford’s), but does not expressly provide that the Authority may consider “navigational aspects.”

The intent of section 10, which Ford does not attempt to define, cannot possibly be discerned by reading the section in a vacuum. In order to ascertain the intent of the section it is necessary to consider both the pronouncement in section 2 that the Authority’s purpose is to aid and assist boating activities and navigation and the statement in section 18 that the provisions of the act are to receive a liberal construction. Thus, we believe that the intent of section 10 is that the Authority may consider navigational aspects in regulating the construction of docks. We agree with the circuit court that “[t]o find otherwise would be to place a stilted and unduly restrictive interpretation on this Act.”

The Authority’s decision to deny Ford’s application on the ground that the proposed structure would pose a hindrance to navigation was supported by substantial competent evidence. The evidence was obviously in material conflict. On paper, it appears that the Authority could have easily granted the application. For example, the length of the proposed structure comports with the guidelines of the Army Corps of Engineers, Ford’s lot deed restrictions, and the City of St. Petersburg’s zoning ordinances. Also, the southern end of the requested structure is 22 feet from the northern channel markers. But Kauffman and Curtis, among others, concluded that the proposed structure would create navigational problems because the waterway is heavily traveled by large and small boats and is adversely affected by shoaling, tides and currents. Both appeared qualified to offer opinions: Kauffman being the dock master of the marina and Curtis being a former Coast Guard officer. We believe that their statements alone were “sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.” DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla.1957).

Accordingly, certiorari is GRANTED, the order of the circuit court is REVERSED, and the cause is REMANDED with directions to reinstate the Authority’s decision.

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


author: HENDRY, Judge. DANIEL S. PEARSON, Judge,

text:
    Felix TACORONTE, Appellant, v. The STATE of Florida, Appellee.
    No. 81-867.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1982.

      Bennett H. Brummer, Public Defender, and Stuart R. Mishkin, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY and DANIEL S. PEARSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   HENDRY, Judge.

Felix Tacoronte, defendant below, appeals his conviction following a jury trial, for murder in the second degree and unlawful possession of a firearm while engaged in a criminal offense.

Two friends of the victim, Palenzuela, observed Tacoronte argue with Palenzuela about a bill or ticket in a bar. Tacoronte then took a gun from under his shirt and shot Palenzuela. The two friends later identified Tacoronte as the man who shot Palenzuela and so testified at trial.

Tacoronte testified on his own behalf at trial, stating that he worked for Palenzuela bringing drugs into the country. He said he owed Palenzuela about $40,000 for one kilo of cocaine and that Palenzuela had threatened him if he did not pay. On the evening of the murder, Tacoronte had gone to the bar to get something to eat, and while there Palenzuela, intoxicated, came over and violently demanded that Taco-ronte pay his debt. Tacoronte testified that he saw a gun under Palenzuela’s open coat and that Palenzuela reached for it. Taco-ronte then grabbed the gun, stepped back, and when Palenzuela jumped at him, fired. He struggled with one of the victim’s friends, both of whom were standing nearby, and fired more shots.

Defense counsel and police detective Richard Bohan arranged for Tacoronte to turn himself in on charges of first degree murder. Accompanied by counsel, Taco-ronte surrendered to the sergeant on duty at the Public Safety Department, for an unrelated cocaine charge also pending against him. At trial, on cross-examination by defense counsel, detective Bohan testified as to what happened next:

At that point I told that sergeant — identified myself and told him I was taking custody of him and adding additional charges and you [referring to defense counsel] advised me not to speak to him [referring to the defendant]. I said I wouldn’t.

Defense counsel moved for a mistrial on the basis that this testimony was a reference to defendant’s failure to make a statement following his arrest. The judge denied the motion and gave a curative instruction to the jury.

Two other occurrences at trial are also alleged to constitute reversible error. First, during voir dire of prospective jurors, one of whom was a local school teacher, the prosecutor asked whether any of them knew the victim or his wife. He then asked, “what about the dead man’s little nine year old daughter or ten year old son?” Defense counsel moved for mistrial arguing that the question was calculated to prejudice the jury. The court denied the motion, advising the prosecutor to ask the question in a more appropriate manner without arousing sympathy for the victim, and advised the jurors they must lay aside any personal feelings or sympathy in favor of or against the state or the defendant. The questioning continued:

[PROSECUTOR]: Ms. O’Neal, you are a teacher in the Dade County Public School System. Is that right?
MS. O’NEAL: Yes.
THE COURT: Do you know a little nine year old girl, Dixie Palenzuela, the daughter of Jorge Palenzuela, the dead man in the indictment?
MS. O’NEAL: No.
[PROSECUTOR]: Do you know his ten year old son, Alexius Palenzuela?
[DEFENSE COUNSEL]: Objection. Same kind of thing.
THE COURT: You understand the purpose of the question is whether you know any of these people? I do not think the children of the victim are going to participate in this case in any manner, but if ‘you know them, we want to know. Understand that I hope that the state is not trying to provide any sympathy for their case just by mentioning the children. You must understand you must not do that.

Second, the prosecutor stated during closing argument:

[Defense counsel] says, well, that is the truth somehow. It would have been better prepared. I would suggest to you the defense lawyer has been spending four months going over and preparing for this murder trial, and it is a very important point. His whole story is self-defense. He knows he has a guy who knew his client’s last name standing in the middle triangle while this happened. He knew his name was Tacoronte. He has to come up with something to counter it.

Defense counsel moved for a mistrial, stating that the remarks imputed perjury. The court admonished the jury to remember the evidence they had heard and that counsel’s argument was simply that — argument. The prosecutor then continued without objection:

The defense had to come up with some story to counter the eyewitnesses, so let us create this self-defense. It makes sense, Latins. We all know every Latin in town is a big drug dealer. Let us play on the community’s feeling about people that come from a Latin origin. Let us make this story up. Let us say this big drug dealing story. That is the critical issue.

We address the three issues in the order presented. First, whether detective Bohan’s testimony was a comment on defendant’s silence depends upon the circumstances in which it was made and whether the jury could fairly conclude that the intended inference was that the defendant stood mute at that time. Gosney v. State, 382 So.2d 838 (Fla. 5th DCA 1980). Based on this standard, we hold that the statement was not a comment on the defendant’s postarrest silence. Indeed, the testimony refers to a conversation which occurred, not after arrest, but as the defendant was being booked into jail, and relates instructions given the police by defense counsel not to question his client and an assurance that they would honor this request. In this context, we do not believe that the jury could fairly conclude that this testimony meant that the defendant refused to make a statement. See David v. State, 369 So.2d 943 (Fla.1979); Gosney v. State, supra. Additionally, even assuming the testimony was improper comment on defendant’s silence, we find that this case falls within the exceptions announced by the supreme court in Clark v. State, 363 So.2d 331 (Fla.1978), holding that no error occurs when defense counsel comments upon or elicits testimony concerning the defendant’s exercise of his Fifth Amendment privilege: “A defendant may not make or invite an improper comment and later seek reversal based on that comment.” Id. at 335. Accord Jackson v. State, 359 So.2d 1190 (Fla.1978), cert. denied, 439 U.S. 1102, 99 S.Ct. 881, 59 L.Ed.2d 63 (1979). Since the objectionable testimony was clearly responsive to the line of questions being asked, and was elicited by defense counsel on cross-examination, it does not constitute reversible error. See Castle v. State, 305 So.2d 794 (Fla. 4th DCA 1974), cert. denied, 317 So.2d 766 (Fla.1975).

Second, whether the prosecutor’s question to one of the jurors during voir dire regarding the victim’s children is improper, depends, again, upon the full context in which it was made. Here, the context of the challenged statement related to whether a particular juror, a teacher in the public school system, knew any of the victim’s school age children. The court’s curative instruction to the jury that this question was not intended to evoke sympathy for the victim, but solely to determine whether any of the jurors, particularly the school teacher, might have known the victim’s children, adequately cured any error which might have resulted. See Johnson v. State, 393 So.2d 1069 (Fla.1980).

Tacoronte’s final contention urges that the trial court erred in denying his motion for mistrial based on comments made by the prosecutor during final argument which allegedly imputed perjury to defendant and his counsel.

Generally, a considerable degree of leeway is allowed the prosecutor in closing argument. Thomas v. State, 326 So.2d 413 (Fla.1975); Gosney v. State, supra; Frierson v. State, 339 So.2d 312 (Fla. 3d DCA 1976). An attorney is allowed to urge the conclusions he thinks the jury should draw from the evidence, United States v. Allen, 588 F.2d 1100 (5th Cir.), cert. denied, 441 U.S. 965, 99 S.Ct. 2415, 60 L.Ed.2d 1071 (1979), and where there is sufficient basis in the record to support a comment, the conviction will be affirmed. Darden v. State, 329 So.2d 287 (Fla.1976), cert. dismissed, 430 U.S. 704, 97 S.Ct. 1671, 51 L.Ed.2d 751 (1977); James v. State, 334 So.2d 83 (Fla.3d DCA 1976).

On the basis of the record before us, however, we find it unnecessary to determine whether the inference which the prosecutor attempted to draw in his closing argument was beyond the evidence, since it did not materially contribute to Tacoronte’s conviction. Improper remarks entitle an accused to a new trial only in those cases where the reviewing court is not satisfied beyond a reasonable doubt that the error did not contribute to a conviction. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); McMillian v. State, 409 So.2d 197 (Fla. 3d DCA 1982); James v. State, supra. Here, evidence of Tacoronte’s guilt was overwhelming; the self-defense issue raised by defendant’s own self-serving testimony was decisively contradicted by the two eyewitnesses who testified that defendant shot the victim at point blank range several times without provocation, and a policeman immediately called to the scene who testified he found no weapons on or near the victim. Accordingly, in the context of this case, where the trial court properly instructed the jury to disregard the comments and further admonished them that argument of counsel is not evidence and they should rely solely on the evidence, we conclude that the state’s argument was not so prejudicial nor fundamentally tainted as to require a new trial. Blair v. State, 406 So.2d 1103 (Fla.1981); State v. Cumbie, 380 So.2d 1031 (Fla.1980); Darden v. State, supra; Zamot v. State, 375 So.2d 881 (Fla. 3d DCA 1979); Johnson v. State, 348 So.2d 646 (Fla. 3d DCA 1977); Frierson v. State, supra. As the court explained in Nevels v. State, 351 So.2d 762, 763 (Fla. 1st DCA 1977):

“In any prosecution there are, of course, two parties involved; the State of Florida as the plaintiff and the person accused of crime as the defendant. They each stand before the Bar of Justice upon level ground. The defendant is entitled to a fair and an impartial trial. By the same token, the State of Florida, representing its citizenry, is likewise entitled to a fair and impartial trial. Neither the State of Florida nor any defendant may, within reason, expect to receive a perfect trial in any tribunal in which mortals preside. In nearly every adversary proceedings, some technical error may be found. Unless error reaches to and affects in a prejudicial manner the rights of a party to a fair and impartial trial, such error is harmless and does not infect the validity of the proceedings.”
“One of the stated purposes of those who put together the fabric of the Constitution of the United States was to ‘establish justice’ and insure ‘domestic tranquility. [Emphasis supplied.] Such noble purposes were not reserved just to those accused of crime. They spread as a mantle of protection for the citizenry in general.”

No reversible error having been demonstrated, upon full consideration of the record, briefs, and argument in this case, the conviction is affirmed.

Affirmed.

DANIEL S. PEARSON, Judge,

dissenting.

We recently reversed convictions because the prosecutor in closing argument told the jury, “Don’t let [the victim] with three children and a wife walk away without justice in this case . ..,” Gomez v. State, 415 So.2d 822 (Fla. 3d DCA 1982), and “all [the defendant] did was kill a wino and he is sorry and so is [the victim’s] wife and three children,” Harper v. State, 411 So.2d 235 (Fla. 3d DCA 1982). We held, consistent with long-standing law on the subject, that such arguments are calculated to make the jury decide the case on their emotions rather than the evidence and are improper appeals for sympathy.

I see little difference between the State’s closing arguments in Gomez and Harper and its voir dire in the present case. All had the single purpose of getting before the jury the fact that the victim has or had young children, a fact that is totally irrelevant to the defendants’ guilt or innocence of the charges.

The ostensible justification here is that the prosecutor wanted to learn from one of the venire, a schoolteacher by the name of Mrs. O’Neal, whether she knew the victim’s children. The record simply does not bear out the sincerity of the inquiry. Neither the victim’s wife nor children were to testify in the trial. Yet, in voir dire, under the guise of identifying the wife of the victim to the potential jurors, the prosecutor asked:

“Married the last twelve years to Virgin Palenzuela. Virgin Palenzuela, do you know her? That is the dead man’s wife. She came over eighteen years ago from Cuba. They have been married for about the last twelve years. Anybody know her?”

and followed with:

Prosecutor: “What about the dead man’s little nine year old daughter or ten year old son?”
Defense Counsel: “Objection. I move for a mistrial on that one. I move for a mistrial.”
Defense Counsel, at bench conference: “[He] is one of the most improper prosecutors I have seen in a long time. I even hear the mumbling of the jury now. That was calculated to prejudice this jury. It is not relevant to this case, has nothing to do with this case.”
Prosecutor: “I want to know if he knows these people.”
Defense Counsel: “It is very fortunate that we just started the trial now. The Court can excuse this panel.”

It was not until he was called to task by defense counsel’s motion to discharge the panel that the prosecutor seized upon a post-hoc explanation for his question concerning the children in the person of Mrs. O’Neal, the schoolteacher. But Mrs. O’Neal had not been asked where she taught school or the grades she taught so as to make it even remotely likely that she knew or had any contact with these children. And after his transparent question about the victim’s children had accomplished its purpose, the prosecutor showed no interest in further questioning Mrs. O’Neal to determine if she knew these children.

I do not believe we should condone this subterfuge. I do not think it appropriate to adopt a rule of law that because a prospective jury panel includes a schoolteacher or, for that matter, anyone whose occupation brings him into contact with children, it is fair game for the prosecutor to bring before the panel facts about the children of a crime victim. If indeed the prosecutor has a genuine concern about a juror being prejudiced one way or the other in a case because he or she may know the children of a victim, and a proper predicate is laid, then I am certain this concern can be accommodated through a voir dire of the individual venireperson in the absence of other potential jurors.

I think the prosecutor’s closing argument was equally reprehensible. It is inescapable that the prosecutor blatantly accused defense counsel of suborning perjury and the defendant of committing perjury. That such remarks, calculated to unfairly prejudice the jury against the defendant, are improper and constitute professional misconduct is not really open to debate. Johnson v. United States, 162 F.2d 562 (9th Cir.), rev’d on other grounds, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1947); Weathers v. United States, 117 F.2d 585 (5th Cir. 1941); People v. Montevecchio, 32 Mich.App. 163, 188 N.W.2d 186 (1971); Reidy v. State, 8 Md.App. 169, 259 A.2d 66 (1969); State v. Davit, 343 Mo. 1151, 125 S.W.2d 47 (1939); Garza v. State, 130 Tex.Cr.R. 401, 94 S.W.2d 439 (1936); Criglow v. State, 183 Ark. 407, 36 S.W.2d 400 (1931); Newton v. State, 147 Md. 71, 127 A. 123 (1924). See also Adams v. State, 192 So.2d 762 (Fla.1966); Glassman v. State, 377 So.2d 208 (Fla. 3d DCA 1979); Fla.Bar Code Prof.Resp. E.C. 7-37 (“A lawyer should not make unfair or derogatory personal reference to opposing counsel. Haranguing and offensive tactics by lawyers interfere with the orderly administration of justice and have no proper place in our legal system.”). While such remarks have been broadly condemned as being calculated to unfairly prejudice the jury against the defendant, Reidy v. State, supra; Criglow v. State, supra; Newton v. State, supra; prejudicial “mud slinging,” Garza v. State, supra; offensive to the dignity of the court, State v. Davit, supra; and as making defense counsel’s argument to the jury on behalf of the defendant unworthy of consideration and belief, Weathers v. United States, supra, it seems to me that the essential wrong of the argument is that the defendant’s denial of guilt is not a fabrication of evidence and, most assuredly, not a subornation of perjury by defense counsel, simply because the denial of guilt is in conflict with the State’s proof of the commission of the crime. It is only when a defendant’s statement is shown to be false by proof independent of the proof of the commission of the crime, see Douglas v. State, 89 So.2d 659 (Fla.1956); Brown v. State, 391 So.2d 729 (Fla. 3d DCA 1981), and cases collected therein; or by proof of an actual effort to suborn perjury, United States v. Jones, 578 F.2d 1332, 1338 (10th Cir. 1978), that we allow juries to consider the falsity as additional substantive evidence tending to establish the defendant’s guilt of the crime charged. Where there is no such proof of perjury or subornation, the argument that such exists is an argument totally unsupported by any evidence. See Reidy v. State, supra (argument that defense counsel suborned perjury not disclosed by any evidence in the case); People v. Montevecchio, supra (argument that defendant and his witnesses had perjured themselves is a statement of fact which must be made by a witness, not a prosecutor). It is one thing for a prosecutor to suggest that the defendant’s story is not credible in the face of the State’s evidence of his guilt. It is quite another thing to suggest that the defendant’s story is not to be believed because he and his attorney got together and cooked it up.

The remaining question is whether the trial court’s failure to negate the impact of these remarks through an instruction to the jury requires reversal. Tacoronte’s defense was self-defense. The prosecutor’s remarks were that this defense was made up or fabricated by defense counsel during the four months of preparing for trial and the concoction put into effect by the defendant’s testimony at trial. Admittedly, there was strong evidence to negate Tacoronte’s claim of self-defense. Nonetheless, the jury should have been permitted to assess that claim and the defendant’s testimony free of the prosecutor’s pernicious comments.

I do not disagree that the error of the prosecutor’s remarks might have been cured had the remarks been effectively neutralized by the trial court in an admonition to the jury appropriately informing them of the impropriety. Had that been done, then we could conclude that the outcome of the case was not influenced by the prejudicial comments.

“[A] significant factor in determining whether the jury were likely to have been misled or influenced to the prejudice of the accused by an improper remark [by the prosecutor] is whether the trial court took appropriate action to overcome a likelihood or prejudice, e.g., informing the jury that the remark was improper, striking it and admonishing them to disregard it.” Holbrook v. State, 6 Md.App. 265, 270, 250 A.2d 904, 907 (1969).

When the prosecutor is thus rebuked and the jury admonished, a finding that the initial prejudice has been ameliorated is possible. Garza v. State, supra, 94 S.W.2d at 441; Criglow v. State, supra, 36 S.W.2d at 402; Esterline v. State, 105 Md. 629, 66 A. 269, 272 (1907). But such a finding is not, in my view, possible where the court benignly instructs the jury, as it did:

“You must remember the evidence that you heard and, as I told you before, argument of counsel is not evidence but is only that, argument.”

This instruction does nothing to rebuke the prosecutor or point out the impropriety of the remarks. The trial judge’s duty to firmly and decisively give a curative instruction is seldom carried out by the reminder that argument of counsel is not evidence. Harper v. State, supra, 411 So.2d at 236-37. The instruction given conveys only the idea that argument is not evidence, not that the argument itself is wrong.

“When it is made to appear that a prosecuting officer has overstepped the bounds of that propriety and fairness which should characterize the conduct of a state’s counsel in the prosecution of a criminal ease, or where a prosecuting attorney’s argument to the jury is undignified and intemperate, and contains aspersions, improper insinuations, and assertions of matters not in evidence, or consists of an appeal to prejudice or sympathy calculated to unduly influence a trial jury, the trial judge should not only sustain an objection at the time to such improper conduct when objection is offered, but should so affirmatively rebuke the offending prosecuting officer as to impress upon the jury the gross impropriety of being influenced by improper arguments." Deas v. State, 119 Fla. 839, 161 So. 729, 731 (1935) (emphasis supplied).

See also Ruiz v. State, 395 So.2d 566 (Fla. 3d DCA 1981), and cases cited therein.

Finally, because the trial court left the prosecutor’s remarks uncured and because the evil of these remarks was to bias the jury against the defendant,. I think the harmless error doctrine is as inapplicable here as it is in any case where the reliability of the fact-finding process is affected. No matter what the evidence was against him, Tacoronte had a right to have an impartial jury assess it. Cf. Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (due process does not permit any “procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the state and the accused.”).

I would reverse.

      . On cross-examination the prosecutor questioned Tacoronte as to whether a possible twenty-five year sentence of imprisonment would motivate him to lie on the witness stand. See Francis v. State, 384 So.2d 967 (Fla. 3d DCA 1980), for the proposition that under Rule DR 7-106(C)(4), Code of Professional Responsibility, counsel may argue, on his analysis of the evidence, for any position or conclusion with respect to the credibility of a witness.