author: ALDERMAN, Justice. McDONALD, Justice,

text:
    John P. MAGGARD, Appellant, v. STATE of Florida, Appellee.
    No. 51614.
    Supreme Court of Florida.
    May 7, 1981.
    Rehearing Denied July 10, 1981.

      Richard L. Jorandby, Public Defender, Craig S. Barnard, Chief Asst. Public Defender, and Richard B. Greene, Ellen Morris and Jon May, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Justice.

John Maggard was convicted of first-degree murder, and, following the jury’s recommendation of death, he was sentenced to death. We find no reversible error in his conviction, but we do find that the court reversibly erred in the sentencing portion of the trial when it allowed the State to introduce evidence to rebut the mitigating circumstance of no significant history of prior criminal activity after Maggard had expressly waived this mitigating factor.

Maggard, bitter over past employment disagreements, killed his employer, Hugh Fazende, by shooting him with a shotgun. Fazende died quickly from the shotgun blast which was fired into his home through a window. Maggard then entered the house and stole approximately $100. Thereafter, Maggard told several people that he had committed the murder.

Maggard challenges his conviction on several grounds. He first contends that the trial court erred in sustaining the State’s objection to certain questions asked of two State witnesses on cross-examination. We reject this contention and hold that he was not prejudicially and improperly restricted in his cross-examination of these witnesses and that the court acted properly within its broad range of discretion in sustaining the State’s objections. In the absence of a showing of abuse of discretion, we will not disturb the trial court’s evidentiary ruling. Mikenas v. State, 367 So.2d 606 (Fla.1978); Hoy v. State, 353 So.2d 826 (Fla.1977), cert. denied, 439 U.S. 920, 99 S.Ct. 293, 58 L.Ed.2d 265 (1978).

Next, although he did not object at the time of trial, Maggard now argues that he was denied due process when the trial court excluded a prospective juror from the jury because of his views on capital punishment. Maggard also contends that the exclusion of jurors who oppose the death sentence in a bifurcated procedure violates his right to a jury representing a fair cross section of the community.

If a defendant does not want a prospective juror to be excused on the basis of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), he should make his objection known before the juror is excused. This is not an unreasonable requirement in view of the fact that it is certainly possible that the defendant himself does not want the particular juror to serve and is perfectly content to have the juror excused for cause by the court so that he will not have to use one of his peremptory challenges. Additionally, if the defendant were allowed to raise this point for the first time on appeal, he would be in a position to “sandbag” the trial court and the State by giving the appearance by his silence that he concurs in the court’s excu-sal for cause of. a particular juror. He could then proceed, awaiting the outcome of the trial, secure in the knowledge that if he receives the death sentence it would be set aside on appeal. We reaffirm our prior holdings in Brown v. State, 381 So.2d 690 (Fla.1980), that where no objection is made before the trial court, defendant is in no position to raise this point on appeal.

Moreover, even if Maggard had timely objected, his contention that this venireman was improperly excused is totally without merit. During the jury voir dire, the court, speaking to the entire jury ve-nire, stated:

The Court will now explain to you the standard by which your qualification to serve as a juror is to be measured. The Court will then ask you to search your own conscience and tell the Court whether, measured by that standard, you feel you are qualified to serve as a juror.
The fact that you may have reservations about or conscientious or religious scruples against capital punishment does not disqualify you to serve as a juror. It is entirely possible that a juror who believes that capital punishment should never be inflicted, and who is irrevocably committed to its abolition, could nevertheless subordinate his personal views to what he perceives to be his duty to abide by his oath as a juror and to obey the law of the state.
If you are willing to consider rendering a verdict that might result in the death penalty, and are not irrevocably committed, before the trial begins, to vote against a verdict that may result in the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings, you are qualified to serve as a juror.
However, if you would automatically vote against a verdict that might result in the penalty of death without regard to any evidence that might be developed at the trial, or if your attitude toward the death penalty would prevent you from making an impartial decision as to the Defendant’s guilt, you are not qualified to serve as a juror.

Later during voir dire, the following colloquy took place:

THE COURT: Do you know of any reason why you could not or should not sit with us on this jury?
ROBERT McINTOSH: Yes, sir.
THE COURT: All right, sir.
ROBERT McINTOSH: It would disturb my conscience. It would disturb me to participate in the decision.
THE COURT: What type of decision?
ROBERT McINTOSH: The decision of — concerning murder.
THE COURT: Do you understand that first in this case if you reach a verdict it is to be based strictly on the law and the evidence in the case; that is whether he is guilty of first degree murder or second degree murder or third degree murder or manslaughter or not guilty?
ROBERT McINTOSH: Yes, your Hon- or.
THE COURT: And then I understand that you are speaking of the second phase of the case where you and eleven other people would be recommending to this Court whether the death sentence or life imprisonment should be imposed; is that correct?
ROBERT McINTOSH: Yes, your Hon- or.
THE COURT: And you say that your beliefs are such that even though it is not a binding suggestion or recommendation to this Court that you could not or should not participate in that aspect of the case?
ROBERT McINTOSH: Yes, your Hon- or.
THE COURT: Counsel have any other inquiry as to that respect of Mr. McIntosh?
MR. LYKKEBAK: None, your Honor.
MR. LORINCZ: None from the Defense.

Viewing the entire context of the voir dire, we find that the trial court correctly followed the Witherspoon standards and properly excused this prospective juror. Downs v. State, 386 So.2d 788 (Fla.1980), cert. denied,-U.S.-, 101 S.Ct. 387, 66 L.Ed.2d 238 (1980); Brown v. State. See also Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980).

We also reject Maggard’s contention that he was denied his right to a jury representing a fair cross section of the community. In Riley v. State, 366 So.2d 19 (Fla.1978), we held that defendants in bifurcated capital cases are not entitled to have on the jury that determines guilt or innocence jurors who are unalterably opposed to the death penalty because they represent a definable cross section of the community. See also Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979).

Maggard also contends that statements made by the prosecutor during closing arguments as to the prosecutor’s personal beliefs violated his right to due process of law. Because he did not object to the prosecutorial comments during trial, Mag-gard is now precluded from asserting this argument on appeal. Gibson v. State, 351 So.2d 948 (Fla.1977), cert. denied, 435 U.S. 1004, 98 S.Ct. 1660, 56 L.Ed.2d 93 (1978). Moreover, the prosecutorial comments read in the entire context of closing arguments do not constitute prejudicial error so as to require a new trial.

Maggard’s final contention that the court erred in permitting certain photographs into evidence is likewise without merit.

In addition to reviewing the record in light of the errors alleged by Maggard, we also have reviewed the record pursuant to Florida Rule of Appellate Procedure 9.140(f), and we conclude that no new trial is required. We, accordingly, affirm the conviction for murder in the first degree.

Maggard also challenges his death sentence on several grounds which we find to be meritorious. The court, in imposing a sentence of death, found no mitigating circumstances and found the following three aggravating circumstances:

The Court does find, as an aggravating circumstance, that the capital felony, the murder of HUGH C. FAZENDE, was committed while the Defendant was engaged in committing a burglary on the victim’s premises, as stated in Section 921.141(5)(d).
The Court also finds, as an aggravating circumstance, that the capital felony was committed for pecuniary gain in that he took approximately $100.00 from the interior of the house after the homicide.
The Court further finds, as an aggravating circumstance, that the capital felony was especially heinous, atrocious, or cruel in that the Defendant herein was bitter over employment disagreements with the deceased for approximately one year, that shortly before this murder he bought a shotgun and on the day in question he parked his car approximately one-hálf mile from the victim’s house, walked through a wooded area and thereafter shot the deceased through a window in the house; thereafter, while he was wearing gloves, he stole approximately $100.00 from the deceased’s house, and thereafter waited on the scene for approximately one hour to see if any neighbors might show up after hearing two shotgun blasts. Section 921.141(5)(h).

Maggard correctly points out that the trial court, under the peculiar facts of the case before us, erroneously doubled up the aggravating circumstances of commission of the murder while he was engaged in committing a burglary and commission of the murder for pecuniary gain contrary to the dictates of Provence v. State, 337 So.2d 783 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977).

Maggard also contends that the court erred in finding that this capital felony was heinous, atrocious, or cruel. We agree. In State v. Dixon, 283 So.2d 1 (Fla. 1973), cert. denied sub nom. Hunter v. Florida, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974), we defined heinous to mean “extremely wicked or shockingly evil”; atrocious to mean “wicked and vile”; and cruel to mean “infliction of a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others.” The evidence reveals that the victim died quickly from a single gunshot blast fired through a window, and there is no evidence indicating that the victim was aware that he was going to be shot. The record does not reveal that this capital felony “was accompanied by such additional acts as to set it apart from the norm of capital felonies — the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” 283 So.2d at 9. Cf. Fleming v. State, 374 So.2d 954 (Fla.1979); Kampff v. State, 371 So.2d 1007 (Fla.1979); Riley v. State; Cooper v. State, 336 So.2d 1133 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977).

We find no error in the trial court’s conclusion that there are no mitigating circumstances present. But for an additional error committed by the court during the sentencing hearing, we would affirm the sentence since there is at least one viable aggravating circumstance and no mitigating circumstances. State v. Dixon. The additional error, however, is of such magnitude as to require a new sentencing hearing before the jury and court. After Maggard expressly waived any reliance on the mitigating factor of no significant prior criminal activity, the State, over Maggard’s objection, was permitted to present extensive evidence of Maggard’s prior criminal record of nonviolent offenses to rebut a mitigating factor upon which Maggard expressly stated he would not rely. Prior to the sentencing hearing, Maggard moved to exclude this evidence of nonviolent crimes and announced to the court that under no circumstances would he attempt to demonstrate to the jury that he had no significant history of prior criminal activity. This motion was erroneously denied by the court.

Mitigating factors are for the defendant’s benefit, and the State should not be allowed to present damaging evidence against the defendant to rebut a mitigating circumstance that the defendant expressly concedes does not exist. Furthermore, the jury should not be advised of the defendant’s waiver. In instructing the jury, the court should exclude the waived mitigating circumstance from the list of mitigating circumstances read to the jury, and neither the State nor the defendant should be allowed to argue to the jury the existence or the nonexistence of such mitigating circumstance.

Accordingly, we affirm the conviction, but we reverse the sentence and remand this cause for a completely new sentencing hearing before a newly impaneled jury.

It is so ordered.

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

McDONALD, J., concurs in part and dissents in part with an opinion, with which OVERTON, J., concurs.

ADKINS, J., concurs as to conviction and dissents as to sentence.

McDONALD, Justice,

concurring in part and dissenting in part.

I concur with the opinion in this cause except that part which remands for a new sentencing proceeding. I would reduce the sentence to life imprisonment without further proceedings.

OVERTON, J., concurs.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Frederick O. LEOPOLD, Respondent.
    No. 56985.
    Supreme Court of Florida.
    May 7, 1981.
    Rehearing Denied July 9, 1981.
    John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel, and James P. Hollaway, Deputy Staff Counsel, Tallahassee, and Harris K. Solomon, Bar Counsel, Fort Lauderdale, for complainant.
    Louis M. Jepeway, Jr., of Jepeway & Jepeway, Miami, for respondent.
   PER CURIAM.

Frederick 0. Leopold was temporarily suspended from The Florida Bar on June 27, 1979. This Court appointed a referee who was directed to hold hearings and to take testimony necessary to establish the facts and to report his findings and recommendations to the Court. This cause is now before us on the referee’s report and The Florida Bar’s petition for review.

The referee found that Leopold misappropriated funds from his clients’ trust account for his personal use and commingled his private funds with his trust account funds. Leopold has repaid his clients all misappropriated funds except approximately $1,700 which is being held in a court registry because of disputed ownership. We approve and adopt the referee’s findings of fact.

The referee recommends that Leopold be found guilty of violating Florida Bar Integration Rule, article XI, Rule 11.02(4)(a) and recommends that Leopold be suspended from The Florida Bar for two years with certain conditions. The Florida Bar’s review petition objects to a two-year suspension and argues that disbarment is the appropriate discipline.

This is not the first time that Leopold has exhibited an inability to conduct his activities according to the profession’s standards. He was privately reprimanded by The Florida Bar’s Board of Governors in 1966 and was publicly reprimanded by this Court in 1975. The Florida Bar v. Leopold, 320 So.2d 819 (Fla.1975). Considering this prior misconduct with his present reprehensible misconduct — one of the most serious offenses a lawyer can commit — in determining the appropriate discipline, we agree with The Florida Bar that disbarment of Leopold is warranted. The Florida Bar v. Breed, 378 So.2d 783 (Fla.1979).

Accordingly, Leopold is disbarred effective immediately. Costs of $6,156.88 are hereby taxed against him.

It is so ordered.

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

ADKINS, BOYD and McDONALD, JJ., concur in the finding of misconduct, but would suspend as recommended by referee and require payment of costs.


text:
    Michael Newton GRIESMAN, Appellant, v. STATE of Florida, Appellee.
    No. TT-363.
    District Court of Appeal of Florida, First District.
    March 17, 1981.
    Rehearing Denied June 24, 1981.
    Paul Morris, Moran & Gold, and Joseph Beeler, Miami, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton and Carolyn M. Snurkowski, Asst. Attys. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED.

WENTWORTH and LILES, JJ., and OWEN, WILLIAM C., Jr. (Retired), Associate Judge, concur.


author: PER CURIAM. PER CURIAM.

text:
    Larry Roosevelt WESLEY, Appellant, v. STATE of Florida, Appellee.
    No. VV-438.
    District Court of Appeal of Florida, First District.
    April 6, 1981.
    Rehearing Denied June 19, 1981.
    Michael E. Allen, Public Defender, and Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
   PER CURIAM.

REVERSED and remanded for new trial. Tascano v. State, 393 So.2d 540 (Fla.1980).

McCORD, ROBERT P. SMITH, Jr., and ERVIN, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

Appellee has filed a motion for rehearing contending that error of the trial court in refusing to instruct the jury pursuant to Florida Rule of Criminal Procedure 3.390(a) as to maximum and minimum sentences which could be imposed upon appellant could be rendered harmless by virtue of the evidence proving appellant’s guilt. Our opinion reversing this case for a new trial was predicated upon a motion to reverse filed by appellant, citing Tascano v. State, 393 So.2d 540 (Fla. 1980). Appellee requests that we withdraw our opinion and direct the parties to file the “appropriate appellate briefs so the question of harmless error may be properly addressed.”

The record reflects that appellant objected to the trial court’s refusal to give the instruction required by the aforesaid rule and thus the point was preserved for review. In Tascano, the Supreme Court ruled that a trial court’s refusal to give such an instruction upon request was error; that the requirement that the instruction be given when requested is mandatory. From our interpretation of the Tascano ruling, in conjunction with Justice Alderman’s dissent thereto, the trial court’s error in this respect cannot be deemed harmless. Therefore, appellee’s motion for rehearing must be denied. However, we certify to the Supreme Court of Florida the following question is of great public importance:

Does the harmless error doctrine, as enunciated by § 59.041, Florida Statutes (1979), apply to refusal of the trial court to instruct on the maximum and minimum sentences which may be imposed for the offense for which the accused is then on trial pursuant to Florida Rule of Criminal Procedure 3.390(a)?
The motion for rehearing is denied.

McCORD, ROBERT P. SMITH, Jr., and ERVIN, JJ., concur.


author: SCHEB, Chief Judge.

text:
    CITY OF LAKE WALES, Florida, Appellant, v. LAMAR ADVERTISING ASSOCIATION OF LAKELAND, Florida, a partnership d/b/a Lamar Citrus Outdoor, Appellee.
    No. 80-582.
    District Court of Appeal of Florida, Second District.
    April 8, 1981.
    As Corrected on Denial of Rehearing May 11, 1981.
    Robin Gibson of Gibson & Connor, Lake Wales, for appellant.
    Michael D. Martin of Martin & Martin, Lakeland, for appellee.
   SCHEB, Chief Judge.

Lamar Advertising Association of Lake-land, Florida, rents outdoor advertising space to businesses for display of 300-square-foot poster panels, commonly called billboards. These signs are located away from the sites of the businesses selling the products they advertise. To preserve the beauty of its city, the City Commission of Lake Wales enacted ordinances effectively prohibiting billboards. The trial court held the ordinances unconstitutional. In this appeal we address problems associated with municipal regulation of billboards on the sole basis of aesthetics.

Lamar leased a site in a commercially zoned area in Lake Wales to install a billboard. The City denied Lamar’s application for a permit on the basis that its ordinances limited the size of all off-site signs to 200 square feet. Subsequently, the City enacted ordinance 78-5 which prohibited all off-site signs. Again Lamar applied for a permit, and the City denied the application citing ordinance 78-5.

Lamar filed suit against the City. It contended that the City’s prohibition of billboards was unconstitutional in that it deprived Lamar of due process of law, equal protection, and freedom of speech and amounted to a taking of its property without just compensation. The City defended ordinance 78-5 on the ground that it was a unique city in Florida by history and planning and that it, therefore, could prohibit billboards to preserve its aesthetic character.

Following trial, the court entered an amended final judgment on April 9, 1979, holding ordinance 78-5 unconstitutional to the extent it prohibited billboards. The court ordered the City to promptly consider amending its ordinance in a manner consistent with the amended final judgment. The City then enacted ordinance 79-21, effective January 2, 1980, amending chapter 3, Signs, of the City’s Code of Ordinances which had the objective of promoting “convenience, safety, property values and aesthetics ....” Ordinance 79-21 reinstated the former 200-square-foot size limitation on billboards. Additionally, it limited billboards to unimproved property in commercial and industrial areas and to a height from the ground to the top of each sign of not more than twenty feet and a length of not more than twenty feet. It provided that billboards must be spaced 1,000 feet apart in commercial areas and 600 feet apart in industrial areas. Finally, existing provisions of the City’s sign ordinance permitted on-site wall signs to occupy thirty to forty percent of a “signa-ble” area on each wall of a building, while it made the size of on-site ground signs dependent on the number of driving lanes and speed limits on adjacent streets.

The parties then submitted newly enacted ordinance 79-21 to the court by stipulation. At trial the City also attempted to defend this ordinance on the basis of the City’s aesthetic character. On March 20, 1980, the court entered another final judgment holding that the ordinance was unreasonable and discriminatory and, consequently, unconstitutional. The court ruled that the 200-square-foot limitation was unconstitutional because it effectively prohibited Lamar’s signs “unless [Lamar was] able to find a method of altering [its] national copy which is standardized throughout the United States .... ” Lamar’s billboard material came from a national supplier which furnished 300-square-foot posters. This standardized size enabled Lamar to participate in advertising campaigns of national and regional businesses as well as making possible the preparation of posters in large quantities at reduced costs. See Sunad, Inc. v. City of Sarasota, 122 So.2d 611 (Fla.1960).

The court thus found that the size restriction, together with the other restrictions, rendered ordinance 79-21 unconstitutional when judged by the standard of aesthetics under the Sunad cases. Accordingly, the court found the provision limiting billboards to unimproved property unconstitutional noting that “parts of improved property may provide as good or better location for off-site advertising than an unimproved lot or parcel . . . With regard to the size and length limitations, the court also concluded that “size or length alone is not determinative of and does not create in and of itself an aesthetic pattern . . . . ” The trial judge could not comprehend why Lamar’s twelve by twenty-five foot signs would be less aesthetic than a sign twenty feet high and ten feet wide or twenty feet wide and ten feet high.

Further, the court found the ordinance’s spacing restrictions in commercial and industrial areas unreasonable on the ground that they effectively crippled the business of any off-site advertiser. Finally, it concluded that the Highway Beautification Program of the Florida Department of Transportation, Florida Administrative Code Chapter 14-10, preempted municipal regulation of billboards along federal-aid primary highways.

The City filed this appeal from the March 20, 1980, judgment. It challenges only two aspects of the judgment: (1) the court’s ruling that the 200-square-foot size restriction on billboards was unconstitutional in that it effectively prohibited Lamar’s billboards and (2) its ruling that the Highway Beautification Program of the Florida Department of Transportation preempted any conflicting municipal regulation of billboards on federal-aid primary highways.

We can only surmise that in not challenging the court’s rulings on the shape, spacing and location provisions of ordinance 79-21, the City may have concluded that it would have been futile to have amended these provisions to comply with the trial court’s judgment as long as the rulings on size restriction and preemption stood. The trial court, of course, had no choice on the size restriction being bound by direct precedent in Sunad, Inc. v. City of Sarasota, 122 So.2d 611 (Fla.1960). In Sunad the supreme court held that a municipality cannot cripple the business of an advertiser or discriminate as to size between on-site signs and billboards on the basis of aesthetics. On the other hand, for the City to have permitted the erection of billboards up to 300 square feet in size to enable Lamar to erect its standardized signs and to comply with Sunad would have emasculated the ordinance and nullified its regulation of billboards. Consequently, the City apparently found no reason to amend the shape, spacing and location restrictions on billboards.

While the City does not challenge the rulings on these restrictions, we agree with the trial court on them. The court was judging the merits of the provisions on the basis of aesthetics, and like the trial court, we do not think they are sustainable under Sunad.

We now address the two principal issues in this case: (1) whether the City’s ordinance which effectively prohibits billboards while permitting on-site signs is discriminatory and (2) whether the Florida Department of Transportation’s Highway Beautification Program preempts the City’s regulation of billboards along federal-aid primary highways within its boundaries.

We conclude that the trial court properly found ordinance 79-21, which the City had defended on the basis of its unique aesthetic character, unconstitutional because under Sunad there is no valid aesthetic reason for distinguishing between billboards and on-site advertising signs. However, we hold that ordinance 79-21 does not conflict with the Highway Beautification Program of the Florida Department of Transportation. We suggest the supreme court might now wish to reconsider its decision in Sunad, Inc. v. City of Sarasota that an ordinance regulating billboards solely on the ground of aesthetics is unconstitutional. See Hoffman v. Jones, 280 So.2d 431 (Fla. 1973).

I. Discrimination between on-site signs and billboards on the basis of aesthetics.

Historically, courts have had difficulty sustaining municipal zoning actions grounded on aesthetics under the police power. Wulfsohn v. Burden, 241 N.Y. 288, 150 N.E. 120 (1925); City of Youngstown v. Kahn Bros. Bldg. Co., 112 Ohio St. 654, 148 N.E. 842 (1925); 1 R. Anderson, American Law of Zoning §§ 7.13, .17 (2d ed. 1976). In fact, initially, “[a]esthetic considerations were held insufficient to support use of the police power to impose even modest limitations upon the location of [billboards].” Id. § 7.16. E. g., Commonwealth v. Boston Advertising Co., 188 Mass. 348, 74 N.E. 601 (1905); Kansas City Gunning Advertising Co. v. Kansas City, 240 Mo. 659, 144 S.W. 1099 (1912); Bryan v. City of Chester, 212 Pa. 259, 61 A. 894 (1905).

Along with other states, however, Florida began to permit its municipalities to consider the beauty of their communities in exercising their police powers. Sunad, Inc. v. City of Sarasota, 122 So.2d 611 (Fla. 1960); City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364 (1941). Numerous other state courts have since taken the view Justice Douglas stated in Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 102, 99 L.Ed. 27 (1954) (citations omitted):

The concept of the public welfare is broad and inconclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.

E. g., Veterans of Foreign Wars v. Steamboat Springs, 195 Colo. 44, 575 P.2d 835, appeal dismissed, 439 U.S. 809, 99 S.Ct. 66, 58 L.Ed.2d 101 (1978); Newman Signs, Inc. v. Hjelle, 268 N.W.2d 741 (N.D.1978), appeal dismissed, 440 U.S. 901, 99 S.Ct. 1205, 59 L.Ed.2d 449 (1979); Ghaster Properties, Inc. v. Preston, 176 Ohio St. 425, 200 N.E.2d 328 (1964); Lubbock Poster Co. v. Lubbock, 569 S.W.2d 935 (Tex.Ct.App.1978), cert. denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979); Markham Advertising Co. v. State, 73 Wash.2d 405, 439 P.2d 248 (1968), appeal dismissed, 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 512 (1969).

In Florida, however, the supreme court refused to expand the doctrine and to permit municipalities to regulate billboards separately from on-site advertising signs solely on the basis of aesthetics. In City of Sarasota v. Sunad, Inc., 114 So.2d 377 (Fla. 2d DCA 1959), this court upheld a Sarasota ordinance, grounded in preserving the unique aesthetic character of that city, which restricted billboards to 180 square feet but did not limit the size of on-site advertising signs. In reversing, the supreme court affirmed the principle that aesthetic considerations are a valid reason for regulating signs. Sunad, Inc. v. City of Sarasota, 122 So.2d 611 (Fla.1960). It held, however, that billboards and on-site signs cannot be separately classified for regulation solely on the basis of aesthetics and held Sarasota’s ordinance unconstitutional. Id. at 614-15. See City of Sarasota v. Sunad, Inc., 181 So.2d 11 (Fla. 2d DCA 1965).

Once aesthetics came to be regarded as a valid basis for a municipality’s exercise of its police power, other state courts nevertheless began to take the view that municipalities could separately classify and regulate billboards and on-site signs. In United Advertising Corp. v. Borough of Metuchen, 42 N.J. 1, 198 A.2d 447 (1964), the Supreme Court of New Jersey held valid a zoning ordinance prohibiting billboards on the basis of aesthetics when bearing on land utilization. The court also noted, however, that:

[T]he on-premise sign is a mere adjunct to a permitted business or industrial use, whereas the off-premise sign would be a separate, independent business effort. Hence it proves nothing to say that a sign is a sign.
There are obvious differences between an on-premise sign and an off-premise sign. Even if the baleful effect of both be in fact the same, still in one case the sign may be found tolerable because of its contribution to the business or enterprise on the premises. The hurt is thús supported by a need or gain not present in the case of the off-premise sign. This difference, it seems to us, suffices to support the classification.

Id. 198 A.2d at 450. The New Jersey court thus recognized the convenience objective found in the City of Lake Wales’ ordinance. See also E. B. Elliott Advertising Co. v. Metropolitan Dade County, 425 F.2d 1141, 1154 (5th Cir.), cert. dismissed, 400 U.S. 805, 91 S.Ct. 12, 27 L.Ed.2d 35 (1970).

In Ghaster Properties, Inc. v. Preston, 176 Ohio St. 425, 200 N.E.2d 328 (1964), the Ohio Supreme Court held valid a statute prohibiting advertising devices erected or maintained within 660 feet of the right-of-way of an interstate highway. The ordinance, however, exempted on-site signs and signs located in commercial and industrial zones within cities where the property adjacent to the interstate highway was subject to municipal regulation or control. The court found that the ordinance was a valid exercise of the police power to enhance the public welfare, apart from considerations of public health, welfare and morals. It also found weakness in Ghaster’s assumption that statutes regulating or prohibiting billboards could not be sustained unless they bore “a real and substantial relationship to the public safety.” Id. 200 N.E.2d at 336. Finally, the court concluded that the aesthetic impact of billboards is an economic fact which may bear heavily upon the enjoyment and value of property and is a relevant zoning consideration.

In Metromedia, Inc. v. City of San Diego, 26 Cal.3d 848, 610 P.2d 407, 164 Cal.Rptr. 510, probable jurisdiction noted, - U.S. -, 101 S.Ct. 265, 66 L.Ed.2d 127 (1980), the Supreme Court of California upheld a San Diego ordinance banning billboards. It found the ordinance was a valid exercise of the city’s police power because it bore a reasonable relationship to the objectives of the ordinance which included, elimination of traffic hazards and improvement of the city’s appearance. The court reasoned:

We believe, however, that the holding of Varney & Green v. Williams, [155 Cal. 318, 100 P. 867 (1909)], that aesthetic purposes alone cannot justify assertion of the police power to ban billboards, is unworkable, discordant with modern thought as to the scope of the police power, and therefore compels forthright repudiation.
Because this state relies on its scenery to attract tourists and commerce, aesthetic considerations assume economic value. Consequently any distinction between aesthetic and economic grounds as a justification for billboard regulation must fail. “Today, economic and aesthetic considerations together constitute the nearly inseparable warp and woof of the fabric upon which the modern city must design its future.”

610 P.2d at 413, 164 Cal.Rptr. 510. See also Metromedia, Inc. v. City of Pasadena, 216 Cal.App.2d 270, 30 Cal.Rptr. 731 (1963), appeal dismissed, 376 U.S. 186, 84 S.Ct. 636, 11 L.Ed.2d 602 (1964); Donnelly Advertising Corp. of Maryland v. Mayor and City Council, 279 Md. 660, 370 A.2d 1127 (1977); Mississippi State Highway Commission v. Roberts Enterprises, Inc., 304 So.2d 637 (Miss.1974). But see People v. Webb, 189 Colo. 400, 542 P.2d 77 (1975); Metromedia, Inc. v. City of Des Plaines, 26 Ill.App.3d 942, 326 N.E.2d 59 (1975).

In fact, the trend toward acceptance of regulatory distinction between billboards and on-site advertising signs prompted Yok-ley to write, “It has long been settled that the unique nature of outdoor advertising and the nuisance fostered by billboards and similar outdoor structures located by persons in the business of outdoor advertising, justifies the separate classification of such structures for the purposes of governmental regulation and restriction.” 6 E. Yokley, Zoning Law and Practice § 35-9 (4th ed. 1980).

Accordingly, we certify the following question to the supreme court:

CAN A MUNICIPALITY SEPARATELY CLASSIFY OFF-SITE ADVERTISING SIGNS AND ON-SITE SIGNS SOLELY ON THE BASIS OF AESTHETICS, THEREBY RESTRICTING THE SIZE OF OFF-SITE SIGNS?

II. Preemption

The court also found ordinance 79-21 unreasonable in that it conflicted with the Highway Beautification Program of the Florida Department of Transportation, Florida Administrative Code Chapter 14-10. The court concluded, consequently, that the Highway Beautification Program preempted the City’s regulation of billboards along federal-aid primary highways within its boundaries. Federal-aid primary highways are highways built in part with federal funds. 23 U.S.C. § 103 (Supp.1979). The court found, and Lamar and the City agree, that the only two highways along which the City wishes to regulate billboards, State Road 60 and Federal Highway 27, are federal-aid primary highways.

Florida enacted chapter 479, Florida Statutes (1979), implementing the federal Highway Beautification Act of 1965, 23 U.S.C. § 131 (Supp.1979), and making the Florida Department of Transportation responsible for administering and enforcing the Act. § 479.02, Fla.Stat. (1979). The Department enacted chapter 14-10 of the Administrative Code, the Highway Beautification Program, implementing chapter 479, Florida Statutes. Since the restrictions imposed on billboards in chapter 14-10 of the Administrative Code mirror those in chapter 479, Florida Statutes, we will address the restrictions as set out by the legislature.

Chapter 479 imposes the following restrictions, among others, on billboards:

479.11 Certain outdoor advertising prohibited. — No advertisement, advertising sign or advertising structure shall be constructed, erected, used, operated or maintained:
(1) Within 660 feet of the nearest edge of the right-of-way of all portions of the interstate system or the federal-aid primary system except as provided in s. 479.-111, or within 15 feet of the outside boundary of any other federal or state highway or within 100 feet of any church, school, cemetery, public park, public reservation, public playground, state or national forest, or railroad intersection outside the limits of any incorporated city or town.
(2) Beyond 660 feet of the nearest edge of the right-of-way of all portions of the interstate system or the federal-aid primary systems outside of urban areas that is erected with the purpose of its message being read from the main-traveled ways of such system ....

Counties and municipalities in Florida may “establish outdoor advertising or sign ordinances.” See §§ 125.0102, 166.-0425, 479.155, Fla.Stat. (1979). “[H]owever, such ordinances shall not conflict with any applicable state or federal laws.” §§ 125.-0102,166.0425, id. The City’s ordinance 79-21, however, imposed more stringent restrictions on billboards located within its corporate boundaries than does chapter 479. Consequently, the trial court concluded, and Lamar argues, chapter 479 preempted ordinance 79-21. We disagree.

We find no conflict between ordinance 79-21 and chapter 479. The Fifth Circuit Court of Appeals addressed this very issue in E. B. Elliott Advertising Co. v. Dade County, 425 F.2d 1141, cert. dismissed, 400 U.S. 805, 91 S.Ct. 12, 27 L.Ed.2d 35 (1970), and concluded that the legislature intended to permit municipalities to impose more stringent restrictions on billboards than chapter 479:

This contention, however, is without merit. The word “inconsistent”, as used in § 6(f) of Article VIII means contradictory in the sense of legislative provisions which cannot co-exist and the same should be true of the word “conflict” in § 11(5). And it cannot be said that § 479.11(1), Florida Statutes, F.S.A., and Dade County Ordinance No. 63-26 are contradictory in the sense that they cannot coexist. Section 479.15, supra, clearly indicates that Chapter 479 was designed to establish minimum regulations for the outdoor advertising business and does not prevent, but rather leaves the way open and encourages stricter regulations by other governmental agencies in the lawful exercise of their power.

Id. at 1150 (citations omitted).

Section 479.15(1), Florida Statutes (1979), provides:
No zoning board or commission nor any other public officer or agency shall permit any advertisement or advertising structure which is prohibited under the provisions of this chapter nor shall the department permit any advertisement or advertising structure which is prohibited by any other public board, officer or agency in the lawful exercise of its or their powers.

(Emphasis added.) The legislature clearly intended to permit restrictions on billboards more stringent than those in section 479.11.

The trial court also concluded from its review of chapter 479, Florida Statutes, that the legislature intended that outdoor advertising exist in some form in this state and that, therefore, the City could not prohibit billboards. There is nothing in chapter 479, however, which explicitly states or even implies that the legislature intended to prevent counties and municipalities from regulating billboards within their boundaries. In fact, section 479.15(1) indicates the opposite.

We also agree with the California Supreme Court that the preemption issue involving a state’s implementation of the federal Highway Beautification Act could arise only where state or local action endangers federal funding under the Act and that that could occur only where a state or local government does not justly compensate owners of existing billboards for their removal. Metromedia, Inc. v. City of San Diego, 26 Cal.3d 848, 610 P.2d 407, 164 Cal.Rptr. 510, probable jurisdiction noted, - U.S. -, 101 S.Ct. 265, 66 L.Ed.2d 127 (1980). See also State v. National Advertising Co., 387 A.2d 745 (Me.1978).

Initially, we note that the United States Congress in 23 U.S.C. section 131(k) (Supp. 1979) provided, “Nothing in [the Act] shall prohibit a State from establishing standards imposing stricter limitations with respect to signs, displays, and devices on the Federal-aid highway systems than those established under this [Act].” Thus, the Congress did not generally intend to preempt stricter billboard regulation by states. Section 131(g), however, provides that “[j]ust compensation shall be paid upon the removal of ... those [billboards] lawfully in existence on [October 22, 1965].” Finally, subsection (b) provides that a state’s share of federal highway funds will be reduced by ten percent if the state does not provide for effective control of billboards “along the Interstate System and the primary system” in accordance with the Act. Consequently, we conclude that if there is any danger of a reduction of federal highway funds under a more stringent state or local regulation, it would occur only where just compensation is not paid for removal of billboards existing on October 22, 1965.

Such cannot be the case here, however, since the legislature provided in section 479.15(2), Florida Statutes (1979), that no municipality can remove a billboard lawfully in existence on December 8, 1971, without paying compensation. Section 479.24(2) provides for payment of compensation pursuant to Florida’s eminent domain procedures which would result in just compensation. Consequently, there is no danger of a funding loss under the City’s ordinance 79-21. We also note that at the time of the trial on the constitutionality of ordinance 78-5, there were no billboards in Lake Wales, and the issue could not have arisen.

Further, other courts have uniformly held that state laws implementing the federal Highway Beautification Act do not preempt local zoning ordinances banning billboards on federal-aid highways. Art Neon Co. v. City and County of Denver, 488 F.2d 118 (10th Cir. 1973), cert. denied, 417 U.S. 932, 94 S.Ct. 2644, 41 L.Ed.2d 236 (1974); Desert Outdoor Advertising, Inc. v. County of San Bernardino, 255 Cal.App.2d 765, 63 Cal.Rptr. 543 (1967), appeal dismissed, 393 U.S. 8, 89 S.Ct. 45, 21 L.Ed.2d 10 (1968), disapproved, Metromedia, Inc. v. City of San Diego, 26 Cal.3d 848, 610 P.2d 407, 164 Cal.Rptr. 510, probable jurisdiction noted, - U.S. -, 101 S.Ct. 265, 66 L.Ed.2d 127 (1980); City of Doraville v. Turner Communications Corp., 236 Ga. 385, 223 S.E.2d 798 (1976); Donnelly Advertising Corp. v. Mayor and City Council, 279 Md. 660, 370 A.2d 1127 (1977); Modjeska Sign Studios, Inc. v. Berle, 43 N.Y.2d 468, 373 N.E.2d 255, 402 N.Y.S.2d 359 (1977), appeal dismissed, 439 U.S. 809, 99 S.Ct. 66, 58 L.Ed.2d 101 (1978); Ackerley Communications, Inc. v. City of Seattle, 92 Wash.2d 905, 602 P.2d 1177 (1979).

Accordingly, we reject the trial court’s determination that the state has preempted the authority of cities to regulate billboards along federal-aid highways within their boundaries. We affirm the trial court’s judgment, however, on the basis of Sunad, Inc. v. City of Sarasota, 122 So.2d 611 (Fla. 1969).

GRIMES and DANAHY, JJ., concur.

      . Sec. 3-1. Statement of purpose.
      The objective of this chapter is to establish requirements which promote convenience, safety, property values and aesthetics while granting equal protection and fairness to all property owners.
      (a) Convenience. The chapter is designed to encourage signs which help to visually organize the activities of the city, lend order and meaning to business identification and make it easier for the public and business delivery systems to locate and identify their destinations.
      (b) Safety. The requirements with regard to placement, installation, maintenance, size and location of signs act to minimize unnecessary distractions to motorists, protect pedestrians and provide safe working conditions for those persons who are required to install, maintain, repair and remove the signs and their structures.
      (c) Property values and aesthetics. An offensive sign is as detrimental to property values as an offensive odor or sound. Sign, sound and odor influence the value of property in the neighborhood and community. The city has the obligation to promote the general welfare. This includes enhancement of property values by enacting and enforcing ordinances which create a more attractive business climate and make Lake Wales a more desirable city in which to visit, trade, work, and live.

      . Sec. 3-10(d)(3). Billboards.
      A billboard is defined as any signboard, poster panel, or similar structure bearing or intended for an advertising message of any commodity, product, service enterprise, or identity not directly related to or associated with the site upon which the structure is located. The use of a billboard is subject to the following restrictions.
      (a) The location of the billboard shall be confined to areas designated a highway commercial district or industrial district.
      (b) The owner of the billboard shall secure any permit required by state statutes.
      (c) The billboard structure must comply with City set-back requirements.
      (d) The billboard can only be located on an unimproved parcel.
      (e) The billboard cannot be larger than 200 square feet in size.
      (f) The height from the ground to the top of the billboard shall not be more than 20 feet.
      (g) The length of the billboard shall not be more than 20 feet.
      (h) In commercial areas, no billboard shall be located less than 1,000 feet from another billboard. In industrial areas, no, billboard shall be located less than 600 feet from any off-site advertising billboard.

      . Sec. 3-3. Definitions.
      (h) Signable area of a building. A rectangular area on the facade of a building which is free of windows and doors or major architectural detail. Any portion of a roof less than twenty (20) feet from the ground is included.
      Sec. 3-8. Industrial signs.
      (a) Wall-mounted sign. Each business is entitled to one sign for each wall of its building which faces a public street. The sign on the front wall may occupy thirty (30) per cent of the signable area. A sign on a side wall shall be the same size as the sign on the front wall or thirty (30) per cent of the signable area of the side wall, whichever is less.
      (b) Ground-mounted sign. If the nearest edge of a building wall is set back from the edge of the adjacent street by thirty-five (35) feet or more and the property otherwise complies with landscaping and off-street parking requirements, a business may also have a ground-mounted sign. The maximum allowable area for each of two faces (1) and height (2) depend on driving lanes and the controlling speed limit and are as follows:
      Speed limit 2 Lanes 4 Lanes
      35 mph (1) 42 sq. ft. (1) 64 sq. ft.
      or less (2) 20 ft. (2) 24 ft.
      More than (1) 64 sq. ft. (1) 108 sq. ft.
      35 mph (2) 24 ft. (2) 26 ft.

        Spacing. Ground-mounted signs may be displayed only on a frontage of one hundred (100) feet or more and may not be closefr] than one hundred (100) feet to any other ground-mounted sign.
      Sec. 3-9. Commercial signs.
      (a) Wall-mounted sign. Each business is entitled to signage on each wall of its building which faces a public street or mall. The area on the front wall may occupy forty (40) per cent of the signable area. The area on a side wall may be the same size as the sign on the front wall or forty (40) per cent of the signa-ble area of the side wall, whichever is less.

      (b) Ground-mounted sign. If the nearest edge of a building wall is set back from the edge of the adjacent street by thirty-five (35) feet or more and the property otherwise complies with landscaping and off-street parking requirements, a business may also have a ground-mounted sign. The maximum allowable area for each of two faces (1) and height (2) depend on driving lanes and the controlling speed limit and are as follows:
      Speed limit 2 Lanes 4 Lanes
      35 mph (1) 42 sq. ft. (1) 64 sq. ft.
      or less (2) 20 ft. (2) 24 ft.
      More than (1) 64 sq. ft. (1) 108 sq. ft.
      35 mph (2) 24 sq. ft. (2) 26 ft.

        Spacing. Ground-mounted signs may be displayed only on a frontage of seventy-five (75) feet or more and may not be closer than seventy-five (75) feet to any other ground-mounted sign.

      . The court relied on Sunad, Inc. v. City of Sarasota, 122 So.2d 611 (Fla.1960), and City of Sarasota v. Sunad, Inc., 181 So.2d 11 (Fla. 2d DCA 1965). In Sunad, Inc. v. City of Sarasota, the supreme court stated:
      This controversy devolves, then, into the question whether or not the ordinance operates to put the petitioner out of business, or so to cripple its business, as to amount to an unreasonable and discriminatory invasion of its rights, hence an exercise of the police power which aesthetics do[es] not warrant.

      122 So.2d at 614 (emphasis added).

      . We do not address the question of whether the City’s ordinance would have been valid had its restrictions on on-site signs also applied to billboards. Since the issue in the case focused on aesthetics, the court apparently did not consider whether the ordinance’s provisions regarding billboards were reasonably related to the achievement of its other objectives, business convenience and safety. Even though Florida, under the Sunad cases, does not permit different treatment of on-site signs and billboards on the basis of aesthetics, it has long recognized a distinction in the regulation of these signs on grounds other than aesthetics, primarily highway safety. In Hav-A-Tampa Cigar Co. v. Johnson, 149 Fla. 148, 5 So.2d 533 (1941), our supreme court upheld a state statute regulating billboards in order to enhance highway safety. See §§ 479.11, .16, Fla.Stat. (1979). The Third District Court of Appeal relied on Hav-A-Tampa Cigar Co., in State v. Miami, 193 So.2d 449 (Fla. 3d DCA), cert. denied, 201 So.2d 553 (1967), in upholding an exception for on-site signs in an ordinance prohibiting construction of billboards within 600 feet of an expressway on the basis of highway safety. See also E. B. Elliott Advertising Co. v. Metropolitan Dade County, 425 F.2d 1141 (5th Cir. 1970).

      . In rejecting the spacing restrictions, the court stated:
      A view of the zoning map of Lake Wales reflects that the industrial zones are located in such areas as to be [of] little or no use to any off-site advertiser. The 1,000 foot spacing requirement in commercial areas must be read in light of [the] original position of the City which is that it is so small that it should be allowed to be an island onto [sic] itself and not have off-site advertising.
      The trial court apparently used the spacing restrictions as a vehicle to find the zoning of the City unreasonable. Nevertheless, we find no merit to the spacing restrictions judging them on aesthetics. Such restrictions might be sustainable if reasonably related to the elimination of traffic hazards, however.

      . The court also concluded that prohibiting billboards did not infringe upon the first amendment protection of commercial speech. In the present case, the first amendment issue was not litigated although Lamar raised it in its complaint. Hence, we do not reach it. For a discussion of the arguments concerning the issue, see both the majority and dissenting opinions in Metromedia, Inc. v. City of San Diego, 26 Cal.3d 848, 610 P.2d 407, 164 Cal.Rptr. 510, probable jurisdiction noted,-U.S.-, 101 S.Ct. 265, 66 L.Ed.2d 127 (1980).

      . Yokley included the following footnote in support of his statement:
      43. United Adv. Corp. v. Borough of Raritan, 11 N.J. 144, 93 A.2d 362 (1952); Thomas Cusack Co. v. City of Chicago, 242 U.S. 526, 37 S.Ct. 190, 61 L.Ed. 472 (1917); Stoner McCray Sys. v. City of Des Moines, [237 Iowa 1313] 78 N.W.2d 843 (1956) (dictum); United Adv. Corp. v. Borough of Metuchen, 42 N.J. 1, 198 A.2d 447 (1964); Ghaster Properties, Inc. v. Preston, 176 Ohio St. 425, 200 N.E.2d 328 (1964); National Adv. Co. v. Cooley, [126 Vt. 263], 227 A.2d 406 (1967), sustaining zoning ordinance directed toward billboard regulation; Ashburn v. Zoning Bd. of Review of Pawtucket, 251 A.2d 524 [105 R.I. 304], (1969); Board of Adjustment of Fayetteville v. Osage Oil & Transp., Inc., [258 Ark. 91], 522 S.W.2d 836, appeal dismissed, 423 U.S. 941, 96 S.Ct. 350, 46 L.Ed.2d 273 (1975), sustaining the right to regulate the size and location of billboards and other commercial signs. See also John Donnelly & Sons v. Outdoor Adv. Bd., [361 Mass. 746], 282 N.E.2d 661 (1972), sustaining a prohibition of billboards within 500 feet of churches, schools and other public buildings; Inhabitants of Boothbay v. National Adv. Co., 347 A.2d 419 (Me.1975), sustaining the prohibition of all off-premises advertising signs, the court holding that the allowance of ten months for the owners of existing signs to remove them did not constitute a taking of property without just compensation.

      . See note 2 supra.


author: SHARP, Judge.

text:
    Gary S. HUDGINS and Margaret M. Hudgins, his wife, Appellants, v. FLORIDA FEDERAL SAVINGS AND LOAN ASSOCIATION, etc., Appellees.
    No. 79-262.
    District Court of Appeal of Florida, Fifth District.
    April 29, 1981.
    Rehearing Denied June 18, 1981.
    Marcia K. Lippincott, Sanford, for appellants.
    Robert L. Taylor, Orlando, for appellee, Sara Jacobson.
    Stephen C. Chumbris, St. Petersburg, for appellee, Florida Federal Savings and Loan Association.
   SHARP, Judge.

Gary and Margaret Hudgins appeal from the trial judge’s order entered after rehearing, which confirmed the judicial sale of the property to appellee, Sara Jacobson. The Florida Federal Savings and Loan Association, the mortgagee, is also an appellee, although it maintained a “neutral position” in this appeal. We affirm the judgment because the record sustains the trial court’s finding that appellants, or third parties acting in their behalf, failed to tender payment timely, pursuant to a stipulation entered into and acted upon by the parties.

The Federal commenced foreclosure proceedings against the Hudgins’ residence in Seminole County, in January of 1978. A default against the Hudgins was taken and a sale was ordered for March 17,1978. The Hudgins’ bankruptcy intervened and stayed the proceedings until the bankruptcy court modified the stay order and allowed the mortgage foreclosure to continue. Jacobson purchased the property at the foreclosure sale, on March 21, 1979.

Because the Hudgins and their attorney were not sent copies of the motions to proceed with the sale, nor notice of the sale, they filed a motion to set aside the sale to Jacobson. Jacobson was interpled as a party to the proceeding on April 10,1979. The parties entered into a stipulation dated May 14,1979, which was filed with the court the same day. The stipulation provided as follows:

(1) The plaintiff stipulates and agrees that the Defendants’ time within which to exercise their right of redemption of the property which is the subject matter of the within action be extended until 5:00 P.M. on the 18th day of May, 1979. Such right of redemption, if it is to be exercised by the Defendants, must be exercised by payment to the Plaintiff, in cash or in certified funds, the principal sum of $27,428.91, plus interest thereon at the rate of eight (8%) percent per annum from the 21st day of February, 1979, such payment to be made on or before 5:00 P.M. on the 18th day of May, 1979.
(2) In consideration for the Plaintiff’s agreement to extend the Defendants’ right of redemption as aforesaid, the Defendants do hereby withdraw their Motion to Set Aside Sale, which motion was served on Plaintiff on the 30th day of March, 1979.
(3) Also in consideration for the Plaintiff’s agreement as contained in paragraph 1 above, the Defendants stipulate and agree that if they fail to redeem the property in the manner hereinabove set forth, the Court shall enter an order confirming the judicial sale of the property herein sought to be foreclosed pursuant to the Amended Final Judgment entered herein on February 21, 1979....

The stipulation was signed by an attorney representing the Hudgins, an attorney for the Federal, Jacobson and Gary Hudgins.

On Friday, May 18,1979, Richard S. Taylor, an attorney, who was putting together a group to finance the purchase of the residence, delivered his personal check in the required amount to an officer of the Federal. The officer told Taylor the stipulation called for payment in cash or certified funds, and that he would have to check further with the St. Petersburg office before accepting the check. Taylor instructed his secretary to leave the check at the Federal. It was later sent to the Federal’s office in St. Petersburg, but was never presented for payment. The following week, Taylor delivered to the Federal a certified check in the required amount, but the Federal reserved any objections to the late tender which might be raised by anyone. Jacobson was not consulted about the tender of the check, nor about the late tender the following week, and she apparently objected to both.

The trial court first ruled in favor of the Hudgins because it thought Taylor’s personal check was drawn on his “escrow” or trust account, and was in the nature of a “certified” check. Taylor later admitted the check was drawn on a personal account with insufficient funds to pay it, but he had available to him other funds which he would have deposited in his account to cover the check, if the Federal had accepted the check and presented it for payment.

The stipulation entered into by the parties is binding on them and it is determinative of the issues involved in this appeal. The stipulation required payment in “cash or certified funds.” Clearly, a judgment creditor is entitled to require tender in such form. Further, there is no basis in the record to conclude, (nor did the trial court find) that the Federal and/or Jacobson waived the tender conditions and requirements as to “cash” or as to time. 59 C.J.S. Mortgages § 844 (1949).

Tender of a personal check is not the equivalent of cash or a certified check. The delivery of a personal check is at best “conditional” payment because whether or not it is drawn on a trust account or escrow account, it is not “finally paid” until the conclusion of the “settlement” process and in the interim, the account may fluctuate in amount, it may be garnished, set off by the Bank, or the drawer may stop payment on the check.

AFFIRMED.

ORFINGER, J., and BAKER, JOSEPH P., Associate Judge, concur.

      . Bkrp.R. 12-43.

        . Gunn Plumbing, Inc. v. The Dania Bank, 252 So.2d 1 (Fla.1971); Groover v. Groover, 383 So.2d 280 (Fla. 5th DCA 1980).

      . 24 Fla.Jur. Payment §§ 3, 7 (1959); Annot. 82 A.L.R.3d 1199 (1978); Annot. 80 A.L.R.2d 1317 (1961).

      . 32 Fla.Jur. Tender § 2 (1960).

      . See § 673.802(l)(b), Fla.Stat. (1979).

      . §§ 674.211(3) and 674.213(1), Fla.Stat. (1979).

      . See Hensarling v. Curtis Candy Co., 62 So.2d 903 (Fla. 1953).


author: SCHWARTZ, Judge.

text:
    Nicolaas Mathias HUPPERTZ, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2303.
    District Court of Appeal of Florida, Third District.
    May 12, 1981.
    Rehearing Denied July 10, 1981.
    Bennett H. Brummer, Public Defender and Lawrence J. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and James H. Greason and Theda James, Asst. Attys. Gen., for appellee.
    Before SCHWARTZ and FERGUSON, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   SCHWARTZ, Judge.

Huppertz was charged with grand theft by attempting to pass a bad check and, because of that offense, with violating a term of probation for possession of a controlled substance. The trial judge ruled that the check in question had been unlawfully seized from the defendant and suppressed, as to the substantive case only, both the check and a statement he made immediately after the seizure. On the ground that the exclusionary rule is inapplicable to probation hearings, however, suppression was denied in that proceeding. The defendant then plead nolo to the probation violation, specifically reserving the right to seek review of the order denying suppression, and now appeals from the re-suiting revocation of probation, judgment, and sentence.

Following State v. Dodd, 396 So.2d 1205 (Fla. 3d DCA 1981), we reverse with directions to restore the appellant to probation. Like Dodd and Ray v. State, 387 So.2d 995 (Fla. 4th DCA 1980), we conclude that Grubbs v. State, 373 So.2d 905 (Fla. 1979) holds that the exclusionary rule is enforceable in probation revocation proceedings and that the district courts must follow Grubbs as the latest supreme court expression on the subject. As we did in Dodd, however, we expressly state that this decision is in direct conflict with the earlier supreme court decision in Croteau v. State, 334 So.2d 577 (Fla.1976), and certify a direct conflict with Shipp v. State, 349 So.2d 690 (Fla. 4th DCA 1977) and Latham v. State, 360 So.2d 127 (Fla. 1st DCA 1978).

Reversed.

      .Three other violations which were alleged in the affidavit were expressly abandoned by the state at the hearing. Their inclusion in the order of revocation was therefore obviously erroneous. Hence, the findings of violations of conditions (1), (5) and (10) are stricken from the order below. Pedroso v. State, 380 So.2d 1124 (Fla. 2d DCA 1980).

      . Since it clearly — and concededly — appears that the check was secured by the police incident to an arrest which was not based on probable cause, this ruling was entirely correct.

      . The state nolle prossed the grand theft case.

      . We-agree that, as indicated by the nolle prosse, the issue of the admissibility of the check was dispositive of the case, so as to permit an appeal upon a nolo plea under Brown v. State, 376 So.2d 382 (Fla. 1979).


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

text:
    FLORIDA FARM BUREAU INS. CO., Appellant, v. Helen BARRETT, as surviving spouse of Robert Barrett, deceased, and Griffith Ranch, Inc., Appellees.
    No. XX-452.
    District Court of Appeal of Florida, First District.
    May 13, 1981.
    Rehearing Denied June 9, 1981.
    Bernard F. Grail, Jr., of Grail & Salbia, Vero Beach, for appellant.
    Jeff Tomberg, Boynton Beach, for appel-lee, Barrett.
    Emory C. Teel, III, of Fee, Koblegard & Teel, P.A., Fort Pierce, for appellee Griffith Ranch, Inc.
   ROBERT P. SMITH, Jr., Judge.

The workers’ compensation insurance carrier for appellee Griffith Ranch, Inc. appeals a deputy commissioner’s order finding that Robert Barrett’s death was compensa-ble under Chapter 440 and that coverage was not excluded by Section 440.09(2), Florida Statutes (1977), as amended by Chapter 74-197, § 5, Fla. Laws, providing:

No compensation shall be payable in respect of the disability or death of any employee covered by the Federal Employer’s Liability Act, the Longshoremen’s and Harbor Worker’s Compensation Act, or the Jones Act.

Barrett died of a heart attack triggered by an electrical shock while he was working barefoot in the damp bilge of his employer’s 44-foot, 18 ton yacht “Esmeralda,” of Bahamian registration, which lay at anchor in Marsh Harbor, Bahamas. The yacht was used for entertainment in the employer’s cattle business. Barrett’s usual work place was at Griffith Ranch in Okeechobee County, but on this occasion, as on 25 to 50 other such occasions in the four previous years, Barrett had been dispatched by his employer to repair the “Esmeralda.”

The question is whether Barrett was an employee covered by the federal Jones Act, 46 U.S.C. § 688, at the time and place of his death arising out of and in the course of his Florida employment. If so, Section 440.-09(2) apparently excludes Chapter 440 workers’ compensation coverage even though, for want of proof of employer negligence, Barrett’s widow might well be denied Jones Act benefits. There is no color-able argument that Barrett was covered by the federal Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901, which applies only to disability or death resulting from injury occurring “upon the navigable waters of the United States,” assuredly excluding waters of the Bahama Islands. 33 U.S.C. § 903(a). Cf. Hernandez v. Mike Cruz Machine Shop, 389 So.2d 1251 (Fla. 1st DCA 1980).

In years past the mutual exclusivity of State-sponsored workers’ compensation remedies and federal maritime remedies, such as the present Jones Act remedies for seamen injured or killed as a result of employer negligence, was the product of federal judicial decisions protecting the maritime jurisdiction of the United States. See Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917); City of Plantation v. Roberts, 342 So.2d 69, 75 (Fla.1976); and Hunt v. Basil E. Kenney Lumber Co., 141 Fla. 842,194 So. 366 (1940). That exclusivity has since been judicially relaxed as the result of various influences, notably the rather compelling realization, aptly portrayed in Larson’s informative discussion, that

[I]f a gap is left between the Jones Act and state compensation acts, the claimant may get nothing — as when the widow and children of a worker instantly killed without employer negligence find that they have no Jones Act remedy, no maintenance and cure, and — if too strict a line is drawn, say, as to land-based “seamen” killed on a landward errand — no workmen’s compensation.

The “local-concern or maritime-but-local doctrine” and the “Jones Act-state compensation twilight zone” are federally crafted rationales for tolerating possible overlaps in coverages, the result of successive awards by state and federal tribunals, in preference to tolerating no award at all. If this case were governed solely by those “nebulous federal constitutional doctrines which have excused state infringement of the superior admiralty jurisdiction of the federal government where the intrusion was not of a serious nature,” we should find Chapter 440 coverage in this case for the reasons expressed by the Plantation majority, 342 So.2d at 74: Barrett and his employer contracted with reference to Florida Chapter 440; their rights and liabilities had no direct relation to navigation; and applying the Florida compensation law could not materially affect any “rules of the sea whose uniformity is essential.” Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 477, 42 S.Ct. 157, 158, 66 L.Ed. 321, 325 (1922).

But the question is whether state law now avoids overlapping coverage by sacrificing State benefits even if federal law does not require that sacrifice. Dicta in both the majority and the minority opinions in Plantation characterize the 1974 amendment to § 440.09(2) as an “additional step” in that direction, or as an unambiguous bar of overlapping coverage. Whatever may be the correct characterization of the statutory demarcation written in 1974, and wherever that abstract demarcation might be drawn in a given case by some ideal tribunal competent to decide all State and federal questions at a single stroke, a Florida deputy commissioner, not being such a tribunal, is not obliged to weigh the evidence of Jones Act coverage as liberally as a federal Jones Act judge or jury might, so to deny the Florida compensation claim. And since we likewise are not that perfectly sighted and multijurisdictional tribunal, we may affirm a deputy’s order, given a plausible basis for his doubting Jones Act coverage in fact, without worrying unduly whether, were we instead a federal court, we would extend Jones Act coverage to further the beneficial purposes of that law. In other words, both the deputy and this court must be conceptually tidy on this subject, but we needn’t be perverse. It is enough for affirmance that substantial competent evidence supports the deputy’s view of things, whether the factual issue is Jones Act coverage or maximum medical improvement.

So in this case we credit the deputy’s finding that Robert Barrett was not a “seaman” for Jones Act purposes because he was not “more or less permanently attached to the vessel.” Plantation, 342 So.2d at 72 and cases cited. The deputy here found:

The evidence shows that there were other occasions during which Mr. Barrett had worked on the Esmeralda at the request of his employer, both while the boat was principally docked in Fort Lauderdale as well as when it was permanently moved and docked in the Bahamas. These occasions were sporadic and Mr. Barrett did only minor repairs and would make arrangements to contract out any major repairs. The record is clear that there was no permanent crew on the boat and that Mr. Barrett was not permanently attached to the boat as a mate or otherwise. The record is further clear that Mr. Barrett’s primary duties were at the Ranch located in Florida .... The claimant was clearly not a seaman for purposes of Jones Act coverage.

Substantial competent evidence supports the Florida deputy’s view of the Jones Act issue. We find no other error. The award is

AFFIRMED.

McCORD and ERVIN, JJ., concur.

      .Our disposition of the case makes it unnecessary to inquire whether the 1974 Florida Legislature requires the deputy commissioner to find some plausible evidence of employer negligence before slamming the door against a Chapter 440 claim. Interpolating such a requirement in the state law would tend to reduce the chances of the worker’s claim falling between the two acts and into neither. But that sort of inquiry was not required when the jurisdictional question was the limits of federal jurisdiction rather than, as now, the extent of the State’s disclaimer. E. g., City of Plantation v. Roberts, 342 So.2d 69 (Fla. 1976).

      . A. Larson, Workmen’s Compensation Law, § 90.41 (1981).

      . Id. at § 90.30.

      . Id. at § 90.41.

      . So characterized by Mr. Justice England in behalf of the Plantation dissenters who found in the “navigable waters” requirement of the Longshoremen’s Act, and in interpretative Florida Supreme Court decisions, “a precise line of demarcation between the state and federal spheres .... ” 342 So.2d 75, 76 (dissenting opinion).

      . 342 So.2d at 72, n.5 (majority opinion).

      . 342 So.2d at 75, n.5 (minority opinion).

      . E. g., Bernardo v. Bethlehem Steel Co., 200 F.Supp. 534 (S.D.N.Y.1961), aff'd, 314 F.2d 604 (2d Cir. 1963); Senko v. LaCrosse Dredging Corp., 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404 (1957); Offshore Co. v. Robison, 266 F.2d 769 (5th Cir. 1959).

        .Cf. A. Larson, supra n.2, at § 90.41, speaking of the federal constraints on overlapping coverage:
      But, apart from such one-sided cases, the best approach would seem to be to allow the trier of fact the same kind of broad discretion as in the longshoremen’s conflicts cases, within the broadest interpretation of the doctrine of local concern, and with a minimum of interference by appellate courts as long as errors of law are avoided.


author: THOMPSON, Judge.

text:
    M. J., a child, Appellant, v. STATE of Florida, Appellee.
    No. SS-120.
    District Court of Appeal of Florida, First District.
    May 18, 1981.
    Rehearing Denied July 1, 1981.

      Theodore E. Mack, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   THOMPSON, Judge.

The appellant was charged with possessing more than five grams of cannabis, and he was later adjudicated delinquent. He appeals on the ground that his motion to suppress was improperly denied. We agree and reverse.

In October 1978, three students at a Quincy high school told Douglass Black, the assistant principal, that they had seen the appellant with a bag of cannabis in his underwear. Mr. Black called the police and Officer York came to Mr. Black’s office at the school. The appellant was then called to Mr. Black’s office.

Mr. .Black asked the appellant several times about possessing cannabis, and he denied such possession. Mr. Black, along with Officer York, continued questioning the appellant for ten minutes. During this time, demands were made for the appellant to produce any cannabis that he had. Additionally, Mr. Black and Officer York told the appellant that he would be “taken down” and arrested, and that the appellant’s uncle, a police officer, would be called. The appellant said, “Don’t call my uncle,” and at or about the same time, he indicated that Mr. Black could search him. Immediately thereafter, the appellant produced a cannabis cigarette from his coat pocket.

Mr. Black accused the appellant of having more cannabis, which the defendant denied. Officer York said that he would call the appellant’s uncle and meet him at the police station. The appellant protested. Officer York also said that a search could be conducted. Mr. Black told the appellant to pull down his trousers, and the appellant did so. Mr. Black then told him to “go further,” and the appellant pulled a bag of cannabis from his underwear. During this time, Officer York strongly suggested that the appellant turn over the cannabis.

The appellant subsequently filed a motion to suppress the cannabis. The trial court denied this motion, finding that the appellant intelligently and voluntarily consented to producing the cannabis cigarette. The court also found that even without consent, there was a reasonable suspicion to justify a warrantless search, and thus, all of the cannabis was properly admissible as evidence.

The appellant first contends that the trial court erred by finding voluntary consent to the search which produced the cannabis cigarette. In response, the State argues that no search was involved because, as the trial court properly found based on the facts herein, the appellant voluntarily produced the cannabis. However, a demand to disclose or produce a concealed object is treated as a search. State v. Oliver, 368 So.2d 1331, 1335 (Fla. 3d DCA 1979), cert. dism. 383 So.2d 1200 (Fla.1980). See also Hunt v. State, 371 So.2d 205 (Fla. 2d DCA 1979); Conner v. State, 349 So.2d 709 (Fla. 1st DCA 1977). Here, there was a demand to produce the cannabis before its actual production. Hence, there was a search.

Of course, if the appellant initiated or invited the search, he could not validly object to that search. See State v. Wise, 356 So.2d 920, 921 (Fla. 2d DCA 1978). In this respect, the State argues that just before the appellant produced the cannabis cigarette, he invited a search by indicating that Mr. Black could search him. Accepting this argument, however, still leaves the question open as to whether the appellant voluntarily “invited” or consented to the search herein. This question is appropriate because an invitation to search is essentially the equivalent of consenting to a search. See Jones v. State, 313 So.2d 105, 106 (Fla. 3d DCA 1975).

The appellant’s invitation came after ten minutes of questioning and just before the cannabis cigarette was produced. Questioning continued while the appellant repeatedly denied possessing cannabis. He was threatened with arrest and with contacting his uncle, a police officer. In this coercive setting, demands were made for the production of cannabis. These factors clearly indicate a lack of voluntary action by the appellant, and instead, indicate that the appellant was merely acquiescing to apparent authority to conduct a search. See Hunt, 371 So.2d at 206; Sarga v. State, 322 So.2d 592, 593 (Fla. 1st DCA 1975).

The trial court also found that even without consent, there was a reasonable suspicion to justify a warrantless search for all of the cannabis. The appellant argues that the warrantless search in this case cannot be excused on the basis of a reasonable suspicion. The State in turn asserts that this court, in State v. F.W.E., 360 So.2d 148 (Fla. 1st DCA 1978), has adopted the reasonable suspicion exception for warrantless searches of students by school officials. This is true in certain circumstances. However, the issue here is how the reasonable suspicion exception for warrantless searches by school officials is affected by the presence of a police officer and his active participation in the search.

When a law enforcement officer directs, participates, or acquiesces in a search conducted by private parties, that search must comport with usual constitutional standards. See United States v. Mekjian, 505 F.2d 1320, 1327-28 (5th Cir. 1975). See also Pomerantz v. State, 372 So.2d 104, 108-09 (Fla. 3d DCA 1979), cert. den. 386 So.2d 642 (Fla.1980). Additionally, where a law enforcement officer directs, participates, or acquiesces in a search conducted by school officials, the officer must have probable cause for that search, even though the school officials acting alone are treated as state officials subject to a lesser constitutional standard for conducting searches in light of the in loco parentis doctrine. See Picha v. Wielgos, 410 F.Supp.1214 (N.D.Ill.1976).

In Picha, the court held that police officers must have probable cause to validly conduct a search of students in active conjunction with a school official. In Picha, just as in the present case, there was police involvement from the very beginning of the search for drugs, and

although the school officials continued to act under the color of their ... school authority, the matter became at least partly a quest for illegal items. As far as the police are concerned, such an investigation cannot come under the ambit of the state interest that dwells under the banner of ‘in loco parentis.’

Id. at 1220. Therefore, police participation in the search required that there be probable cause. Id. at 1221. See also Piazzola v. Watkins, 316 F.Supp. 624, 626 (M.D.Ala. 1970), aff’d 442 F.2d 284 (5th Cir. 1971); Annot., 49 A.L.R.3d 978, 987-89 (1973).

In the case at bar, probable cause was required for Officer York’s search of the appellant. Such cause was lacking. Before probable cause exists for a search based on an informant’s tip, the reliability of both the informant and his information must be indicated. See Davis v. State, 346 So.2d 141 (Fla. 1st DCA 1977), cert. den. Fla., 353 So.2d 679. As to the latter, the police must indicate that either the informant has perceived the fact asserted, or that although his information is hearsay, there is good reason for his believing it. Andersen v. State, 274 So.2d 228 (Fla.1973), cert. den. 414 U.S. 879, 94 S.Ct. 50, 38 L.Ed.2d 124. Here, the record does not show that Officer York indicated or knew that Mr. Black saw the cannabis or had good reason to believe that the appellant had it. The only information relayed by Mr. Black to Officer York was that a student had “some marijuana on his person.” This statement, without any elaboration, cannot be the basis for probable cause on the part of Officer York.

There was no probable cause for the police search which produced the cannabis cigarette. That search was unlawful, and the bag of cannabis was procured as a direct result of the search. Thus, both items of cannabis should have been suppressed. Accordingly, the trial court’s adjudication of delinquency is reversed, and this cause is remanded for proceedings consistent with this opinion.

MILLS, C. J., and McCORD, J., concur.

       Obviously, this court in F.W.E. treated school officials in the same manner. If the school officials in F.W.E. and in Nelson v. State, 319 So.2d 154 (Fla. 2d DCA 1975) had been treated as private parties, there would have been no need to create a constitutionally based reasonable suspicion standard for school searches. Purely private searches are not subject to any Fourth Amendment considerations. See Pomerantz, 372 So.2d at 108.


author: DANIEL S. PEARSON, Judge.

text:
    Robert WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-887.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.
    Rehearing Denied July 10, 1981.

      Bennett H. Brummer, Public Defender and Richard J. DeWitt and Gregory P. Bor-gognoni and Maxine Long, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   DANIEL S. PEARSON, Judge.

In Tascano v. State, 393 So.2d 540 (Fla.1980), the Supreme Court held that the language of Florida Rule of Criminal Procedure 3.390(a) makes mandatory, upon request of either the State or the defendant, the giving of an instruction on the maximum and minimum sentences which may be imposed for the offense for which the accused is on trial. No such instruction was given at Williams’ trial.

We must decide whether Williams, whose trial antedated the Tascano decision, preserved this point on appeal, and, if so, whether a Tascano violation requires reversal in the face of clear evidence of guilt.

The record reflects that at the charge conference, Williams requested that the jury be instructed as to the penalties for the offenses charged in the information and that, after the jury was instructed and before it retired to consider its verdict, Williams objected to the court’s refusal to give the requested penalty charge, but did not state the grounds for his objection or renew the previously stated ground for his request. In our view, Williams’ objection adequately preserved the Tascano point on appeal.

We are not aware of any Florida case holding that a defendant’s specific and timely objection to the trial court’s refusal to give a previously requested instruction without a renewed statement of grounds is inadequate compliance with Rule 3.390(d), Florida Rules of Criminal Procedure. In the present case, after the court’s instructions and before the jury retired, Williams registered a lone objection directed specifically to the court’s refusal to instruct on penalties. Cases holding that a general objection “to every charge given and the failure to give every requested charge” does not comply with the rule, see, e. g., York v. State, 232 So.2d 767 (Fla. 4th DCA 1969), are thus inapposite. Likewise, cases in which no objection was made to the trial court’s refusal to instruct, see, e. g., Bailey v. State, 393 So.2d 24 (Fla. 3d DCA 1981); Washington v. State, 392 So.2d 599 (Fla. 1st DCA 1981); and Kelly v. State, 389 So.2d 250 (Fla. 2d DCA 1980), or in which objection was made after the jury retired to deliberate, see, e. g., Bell v. State, 396 So.2d 270 (Fla. 3d DCA 1981); Bassett v. State, 392 So.2d 1025 (Fla. 5th DCA 1981), are not controlling.

We agree that a statement distinctly setting forth the grounds of an objection serves a sound purpose where the court gives an instruction which the defendant finds objectionable. See Wilson v. State, 383 So.2d 670 (Fla. 5th DCA 1980); York v. State, supra; Jones v. State, 187 So.2d 915 (Fla. 2d DCA 1966). See also Castor v. State, 365 So.2d 701 (Fla.1978). But where a court refuses to give a requested instruction, no sound purpose is served by requiring the defendant to state the grounds of his objection after the refused instruction is not given. Indeed, such a requirement would mean that before a court could send the jury out to deliberate, it would, in effect, have to conduct a second charge conference at which defense counsel would be called upon to repeat every argument made at the initial charge conference in support of all requested, but denied, instructions. If there is, arguendo, some sound purpose to be served in insuring that a defendant who has requested an instruction has not later abandoned that request, see Smith v. State, 378 So.2d 117 (Fla. 4th DCA 1980), that purpose is adequately served by simple objection. See Easter v. State, 398 So.2d 838 (Fla. 5th DCA 1981); Meeks v. State, 400 So.2d 465 (Fla. 5th DCA 1981) (in which point said to be preserved by objection; no mention of grounds).

We hold, therefore, that where a defendant requests a specific jury instruction and sufficiently apprises the trial court of the basis for the request, the defendant preserves for appellate review the denial of the requested instruction by formally objecting to the court’s omission of the particular instruction after the jury is instructed and before it retires, without restating the ground for the request.

We turn now to the question of whether a properly preserved Tascano violation requires reversal in the face of clear evidence of guilt. A Florida jury has no authority to sentence or to recommend [except in respect to the death penalty, see § 921.141, Fla.Stat. (1979)] a sentence. The sole justification for informing the jury about the sentence is the jury’s right to consider the potential sentence on the crime charged in evaluating whether to convict of that crime or something less. The rationale of the Tascano instruction is thus the jury pardon power.

In the like situation where the mandatory giving of the instruction on lesser-included offenses is based on fulfilling the jury’s right to exercise its power to pardon, our Supreme Court has held that the existence of overwhelming evidence supporting the conviction is irrelevant to the error committed when the instruction is not given. Lomax v. State, 345 So.2d 719 (Fla.1977) (holding that the failure to instruct on an immediately lesser-included offense cannot be deemed harmless despite overwhelming evidence that the defendant committed the crime charged). See also Hunter v. State, 389 So.2d 661 (Fla. 4th DCA 1980) (notwithstanding the giving of an instruction on third-degree murder, it was error to fail to instruct on manslaughter where the defendant was charged with first-degree murder and convicted of second-degree murder); Johnson v. State, 314 So.2d 248 (Fla. 1st DCA 1975) (“[W]e have been unable to discover a case where the harmless error rule was applied in a case where the trial court failed to instruct the jury as to the lesser degrees of the offense charged”). Unlike other situations where harmlessness vel non depends on determining the capacity of the claimed error to prejudice the jury in relation to the overall evidence of the defendant’s guilt, an error which affects the opportunity of the jury to pardon has the same capacity for harm no matter how persuasive the evidence of the defendant’s guilt. In short, the right of a jury to pardon is unaffected by the existence of clear evidence of guilt. Accordingly, where an instruction, as here, relates solely to the power to pardon which we invest in juries, we must conclude that the failure to give such an instruction injuriously affected the substantial right of the defendant to be pardoned, for the offenses upon which he was tried.

Reversed and remanded for a new trial.

      . We read the language of Tascano — “this decision shall be prospective only and shall be applicable to all cases in which a jury trial is commenced on or after the effective date of this opinion. The defendant, as well as all others who have preserved this point on appeal, receive[s] the benefit of this interpretation of the rule” — as precluding from the benefits of the decision (a) defendants who did not properly preserve the point for appeal and (b) defendants whose appeals were finalized pre-Tascano, even if the point was preserved. See Meeks v. State, 400 So.2d 465 (Fla. 5th DCA 1981). We reject the State’s contention that Tas-cano applies prospectively except for Mr. Tascano. Post- Tascano decisions have uniformly applied the Tascano ruling to defendants whose trials were concluded before the date of the Tascano decision, June 5, 1980, and whose appeals were then pending or thereafter taken. See, e. g., Bell v. State, 396 So.2d 270 (Fla. 3d DCA 1981); Bailey v. State, 393 So.2d 24 (Fla. 3d DCA 1981); Rodriguez v. State, 385 So.2d 1019 (Fla. 3d DCA 1981) (opinions silent, but records reflect trials concluded before June 5, 1980); Johnson v. State, 394 So.2d 1121 (Fla. 5th DCA 1981); Meeks v. State, supra; Bassett v. State, 392 So.2d 1025 (Fla. 5th DCA 1981); Kelly v. State, 389 So.2d 250 (Fla. 2d DCA 1980) (implicit in opinions that trials concluded pre- Tascano).

      . Williams’ request for a penalty instruction necessarily was based on Rule 3.390(a), as amended in 1977. At the time of Williams’ trial, there was disagreement whether the rule was discretionary, see Tascano v. State, 363 So.2d 405 (Fla. 1st DCA 1978), or mandatory, see Williams v. State, 378 So.2d 902 (Fla. 5th DCA 1980); Murray v. State, 378 So.2d 111 (Fla. 5th DCA 1980). The predecessor rule had been construed as vesting discretion in the trial court, see State v. Terry, 336 So.2d 65 (Fla. 1976), and cases collected in n. 1; Johnson v. State, 308 So.2d 38 (Fla. 1975); Golson v. State, 353 So.2d 195 (Fla. 3d DCA 1977). Williams’ clear right to the penalty instruction did not arise until after his trial was concluded, that is, when Tascano v. State, 393 So.2d 540 (Fla. 1980), was handed down.

      .The rule reads:
      “(d) No party may assign as error grounds of appeal the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects, and the grounds of his objection. Opportunity shall be given to make the objection out of the presence of the jury.”

      . Compare San Fratello v. State, 154 So.2d 327 (Fla. 2d DCA 1963). In San Fratello, the court held that a general objection to all instructions requested by the defendant and refused by the court preserved the point for appeal, because (1) the then appellate rules mandated review of all requested instructions to which objection was made and which were assigned as error; (2) the appellate rules, along with former Section 924.32(1), Florida Statutes, abrogated the “harsh” rule of Dixon v. State, 101 Fla. 840, 132 So. 684 (Fla. 1931), that a general objection to all refused instructions requires affirmance if any one of the requested instructions was properly refused.

      . While Bailey, Kelly, Bell and Bassett, supra, contain language condemning “the failure to state distinctly the grounds for objection,” this language is obvious dicta, since the decisions are grounded on the total failure to make a timely objection.

      .The Fourth District recently held in Williams v. State, 395 So.2d 1236 (Fla. 4th DCA 1981), that not even objection to a refused instruction is required when the basis for the request has been once stated:
      “If a jury instruction is requested and the basis for the request verbalized to the court and made a part of the record, failure to object to rejection of the instruction or to repeat the grounds in the form of an objection does not preclude appellate review. The underlying purpose of Rule 3.390(d) has been met; the trial court is placed on notice that refusal to give the requested instruction may be error. However, if as in Smith, a jury instruction is tendered without further explanation, the subsequent failure to object on specific grounds to its denial is fatal and the issue has not been preserved for review.”
      See also the dissatisfaction expressed, e. g., by Judge Grimes, concurring specially in Kelly v. State, supra, and Judge Wentworth dissenting in Washington v. State, supra, and Davenport v. State, 396 So.2d 232 (Fla. 1st DCA 1981), with any requirement that objection be made to the trial court’s refusal to give a requested instruction. Their view is that implicit in every request for an instruction is an objection to the failure to give it, and that there is, therefore, a marked difference between requiring an objection to an instruction which the court intends to give or gives and requiring an objection to the court’s refusal to give one which is requested. To the extent that Rodriguez v. State, 396 So.2d 798, 800 n. 5 (Fla. 3d DCA 1981), and Bassett v. State, supra, suggest that because the penalty instruction is required by Rule 3.390(a) and the objection requirement is found in (d) of the same rule, there is a greater necessity of objection in the case of a penalty instruction, we disagree. We consider the inclusion of the penalty instruction in this rule to be as fortuitous as the inclusion of the requirement that the court instruct the jury as to the degrees of the offense found in separate Rule 3.490 under Section XI pertaining to The Verdict.

      .On at least five recent occasions, the Fifth District has certified the following question to the Florida Supreme Court:
      “Can an appellate court apply the harmless error doctrine, Section 924.33 and Section 59.041, Florida Statutes (1979), to the failure of a trial court to give the jury instruction required by Florida Rule of Criminal Procedure 3.390(a) if the appellant’s guilt is clearly established and the appellate court determines the error could not have affected the verdict?”

        See Meeks v. State, supra (opinion on motion for rehearing filed April 8, 1981); Haislip v. State, 400 So.2d 473 (Fla. 5th DCA 1981); Gray v. State, 400 So.2d 468 (Fla. 5th DCA 1981); Johnson v. State, 394 So.2d 1121 (Fla. 5th DCA 1981), and Gee v. State, 400 So.2d 466 (Fla. 5th DCA 1981).

      .Compare the Federal jury instructions: “Under the Federal system of criminal procedure you are not to concern yourself in any way with the sentence the defendant might receive if you should find him guilty....” Devitt & Blackmar, Standard Jury Practice & Instructions, Civil and Criminal (3d ed. 1977) § 10.01; and ”... the punishment provided by law for the offense charged in the indictment is a matter exclusively within the province of the court or judge, and should never be considered by the jury in any way....” Pattern Jury Instructions, Criminal Cases, U.S. Fifth Circuit District Judges Association (1979) No. 10A. See also Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965).

      .Anomalously, the jury need not be instructed on the penalty provisions of lesser-included offenses. James v. State, 393 So.2d 1138 (Fla. 3d DCA 1981); Mitchell v. State, 304 So.2d 466 (Fla. 3d DCA 1974); Settle v. State, 288 So.2d 511 (Fla. 2d DCA 1974).

      . Where it is clear that the jury was given a full opportunity to exercise its inherent pardoning power and rejected pardon, as in the instance where despite being given an instruction on lesser-included offenses one step below the crime charged, the jury convicted the defendant of the higher offense, it can be said that the failure to instruct on a lesser-included offense two steps below is harmless. See State v. Abreau, 363 So.2d 1063 (Fla.1978); James v. State, supra. But where the opportunity to exercise the pardoning power is incomplete, as where the jury is instructed on only one of several lesser-included offenses of the same degree, the error is not harmless. Brown v. State, 394 So.2d 1023 (Fla. 4th DCA 1981); Hunter v. State, supra. Thus, despite the fact that in the present case the jury was instructed on lesser-included offenses, those instructions are not a substitute for the mandatory penalty instruction, even though both relate to the pardoning power.
      We note, parenthetically, that the argument that the failure to give the penalty instruction is “harmless” because such instruction, even if given, is neutralized by the instruction to the jury to disregard the consequences of its verdict, see Tascano v. State, 393 So.2d 540 (Fla.1980) (Alderman, J., dissenting); Murray v. State, supra, was rejected, sub silentio, in Tas-cano.