text:
    Kenneth BLAYLOCK v. STATE of Alabama.
    6 Div. 741.
    Court of Criminal Appeals of Alabama.
    March 23, 1982.
    Michael D. Blalock, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Kenneth Blaylock was indicted by the grand jury for the theft of one bicycle, one clock radio and two dollars, the property of Essie Hollis, by threats and by the use of a deadly weapon, a pistol, in violation of § 13A-8-41, Code of Alabama.

The jury found the appellant “guilty of robbery in the first degree as charged” and following a lengthy sentencing hearing, the trial court set sentence at 35 years’ imprisonment.

About 9:30 on the evening of August 27, 1980, Essie Lee Hollis was at her home at 1625 18th Street, SW, in the City of Birmingham, with her two sons, Roderick and Randall, and her daughter, Michele. The appellant and some companions came to the door and at pistol point pushed Mrs. Hollis, one son and her daughter who happened to be at home, into a closet and at pistol point removed a bicycle, a clock radio and two dollars. The victims were cursed for not having “anything more.” At trial Mrs. Hollis and her son and daughter made a positive in-court identification of the appellant, Kenneth Blaylock, based upon their observations at the time of the robbery. The bicycle was recovered the following day through a telephone call from a friend.

The appellant and his mother gave alibi testimony denying his presence at the home of the victims on the evening in question. Since no material issue is made of the facts, further details are not set forth.

I

The first issue on this appeal concerns a “Motion in Limine” filed prior to trial by the appellant, seeking instructions from the trial judge to the district attorney’s staff as follows: (Volume II, R. 214).

“ACCORDINGLY, defendant moves the court to instruct, prior to trial, the District Attorney and his staff and any and all witnesses called on behalf of the State to refrain from any mention of the ‘BAQ’ or any other youth gang or club for the reasons set forth in defendant’s motion.”

At a pretrial hearing on the motion, the following took place: (Volume I, R. 2 and 3).

“THE COURT: All right.
“MR. BLALOCK: I would like to make a motion in limine. What it is, Your Hon- or, we are tying to keep out of the hearing of the jury the word BAQ and all association with BAQ my client may have. Because, BAQ, the papers have indicated, has been highly publicized as a youth gang which has terrorized the West End and parts of Birmingham, Alabama.
“And we feel that if BAQ is introduced and my client is associated with the youth gang, whether or not he is a member, it would be highly prejudicial. And the prejudicial value would outweigh the probative value. That is basically it.
“THE COURT: What context would it come in?
“MR. BLALOCK: Well, it is going to come in as in the earlier habeas corpus hearing where one of the State’s witnesses testified that one of the robbers had a T-shirt with BAQ on it.
“THE COURT: Well, that won’t come in unless he was found later on with that same shirt, or unless that shirt was later connected with him. Just the fact he had on a T-shirt with BAQ with nothing else, I am not going to admit.
“MR. REECE: I don’t recall whether there was any statement made at that time.
“THE COURT: Now, if he said something like I am with BAQ, or something like that, that comes in.
“MR. BLALOCK: No, sir, there has been no statement made to that by the defendant.
“THE COURT: But, just the fact he had on a T-shirt, no.
“MR. BLALOCK: Are you talking about during the habeas corpus hearing?
“MR. DAVIS: Yes.
“MR. BLALOCK: It is not mentioned except the fact that the transcript shows that the only time BAQ was mentioned was when Mr. Robert Collins said that one person had on a yellow T-shirt that had BAQ on the front.
“THE COURT: Unless that shirt is connected with him to show his identity. So, tell him not to say that. I will declare a mistrial, that is all I will do.”

Both counsel for appellant and counsel for State of Alabama concede in brief that they are unable to cite this court with authorities from the State of Alabama concerning the use of such Motion in Limine.

However, a number of authorities from other jurisdictions are included in their respective briefs. In State v. Garrett, 183 N.W.2d 652, (Iowa 1971), we find the following:

“ ‘We deem this appeal an appropriate one in which to say that cases are coming to this court revealing questionable use of the motion in limine-questionable in the manner of its use or in its use at all. The motion is a drastic one, preventing a party as it does from presenting his evidence in the usual way. Its use should be exceptional rather than general. Trial counsel would be well advised to keep in mind the suggestions found in Sidney, Motion in Limine, Workshop Outlines at Ninety-Second Annual Meeting, Iowa State Bar Association, Al at A8-A9 (1965). The motion should be used, if used at all, as a rifle and not as a shotgun, pointing out the objectionable material and showing why the material is inadmissible and prejudicial. Since no one knows exactly how the trial will proceed, trial courts would ordinarily be well advised to require an evidentiary hearing on the motion when its validity or invalidity is not manifest from the face of the motion.’ ” (Emphasis supplied)

In the case at bar, counsel asserts error occurred during the testimony of Birmingham Police Sergeant Holcombe with reference his investigation, the alleged error occurring during the following colloquy: (Volume I, R. 134-135).

“Q. Where was Roderick and the other people seated?
“A. Okay. We were all on the front porch and they were sitting on the steps side-by-side and Roderick was in the center. And I walked up to them — and after the officer told me why they wanted me out there, then briefly I asked Ms. Hollis what happened that night so I would have an idea of what I was looking for. And they told me. And then I went to the car and got the pictures of the youth gangs working that area.
“Q. These pictures, do they show people of the same race?
“A. Yes, sir.
“Q. About the same build?
“A. Yes, sir.
“Q. Does anybody in these pictures have on any distinctive clothing or anything that would hold them out over anybody else?
“A. No, sir.
“Q. Would you show me which picture is Mr. Blaylock’s picture?
“A. Yes, sir. It does happen to be the first one today.
“Q. How long after Roderick picked that picture out was it before Ms. Hollis picked the picture out?
“A. It was almost a simultaneous action. “Q. What did she do or say?
“A. She said that was him.
“Q. Was there any hesitation about her picking it out?
“A. No, sir.
“Q. Was she as positive as Roderick was?
“A. Yes, sir.
“Q. So, when you left their house that day, you had two positive identification witnesses?
“A. Yes, sir.
“Q. That Kenneth Blaylock was the man?
“A. I did.”

It should be specifically pointed out here that at no point in his testimony does Sergeant Holcombe refer to the appellant as being a member of the BAQ nor any other “youth gang” nor, in fact, is he identified by the wearing of a T-shirt or other item of clothing which might indicate membership in such youth gang.

Further, no objection appears in any of the testimony of Sergeant Holcombe during trial nor was a motion for mistrial made with reference membership in the BAQ, or wearing of a T-shirt or other item of clothing.

In this state of the record, we find that no error is preserved for our review; nor indeed was the trial court’s ruling on the Motion in Limine violated. The trial judge’s ruling is hereinabove quoted and it is clear from the above-quoted colloquy that Sergeant Holcombe did not violate this ruling. In this state of the record, we see no error in the above-noted exchanges. Likewise, a mistrial is “too drastic a penalty” under the facts of the present case. See Kendricks v. State, 378 So.2d 1203 (Ala.Cr.App.1979) and authorities therein cited.

II

Appellant next asserts as error the action of the trial judge in excluding the jury during the examination of Mrs. Hollis concerning what apparently was a change in her testimony concerning the events on the night at issue.

Following the court’s questioning of Mrs. Hollis, completed outside the presence of the jury, and her being called to the witness stand, then Mrs. Hollis conceded she had changed her story and positively identified the appellant at trial because the appellant’s mother and some friends had visited her at her home three or four times. The ruling of the trial court is as follows: (Volume I, R. 105-106)

“(Whereupon, at 5:30 P.M. the jurors retired to the jury room and the following was had and done out of the presence and hearing of the jury.)”
“THE COURT: Let the record show that when Ms. Hollis came in the courtroom she looked at the people in the audience all the way from the door to when she made the turn to the witness box. I think that there has been intimidation in this case. You tell them, now, the grand jury is in session and if anybody calls this woman, goes by her house, that is a crime to intimidate a witness.
“And you can tell them that. Now, I am going to tell her if anybody calls her or comes by her house, to tell me. If that happens, I mean — if the Court of Appeals may — if it ever gets to that, they may say I shouldn’t have done what I did. But, as long as I think witnesses are intimidated by people and are not telling the truth, I am going to try to get to the bottom of it. And there has been much too much of that going on around here. And that strikes at the whole heart of the system and I am going to do everything I can do to see that that is not done. I know you probably feel you take exception to what I have done, but I am just telling the reasons that I did it. It hasn’t got anything to do with you or this case, but it is just something that should never happen. And I know it does happen, and when there is evidence of it, I am going to try to do something about it.
“MR. BLALOCK: Let the record reflect I do in fact take exception.”
“(Whereupon, court was in recess until the following day, September the 15th, 1981, at 9:22 A.M. the jurors were brought in and the following was had and done before Court and jury.)”

We believe the applicable legal principles are appropriately set forth in the following statement found in Garner v. State, 364 So.2d 406 (Ala.Cr.App.), cert. denied, 364 So.2d 411 (Ala.1978):

“ ‘The rule covering this situation is well-stated in Brandes v. State, 17 Ala.App. 390, 85 So. 824, as follows:
‘. . . The unquestioned province of the court — in fact, the solemn and sacred duty of a trial judge — is the development and establishment of the truth, and in this connection it is always permissible for the court, and if it appears necessary for him to do so it is his duty, to propound to witnesses such questions as it is deemed necessary to elicit any relevant and material evidence, without regard to its effect, whether beneficial to the one party or the other. Beal v. State, 138 Ala. 94, 35 So. 58. In fact, it is a sacred duty of a judge, both in civil and criminal cases, to give strict attention to the evidence, and to all facts and incidents attendant upon the trial, to propound questions to witnesses if in his judgment he deems it necessary, and to supervise and control the proceedings before him, with a view that justice may not miscarry. As before stated, there is nothing in the record before us even tending to show that the trial judge transcended his authority or abused the discretion with which, under the law, he is vested.
‘It is our opinion that the trial court properly exercised its prerogative in the ascertainment of certain aspects of the testimony, as set forth above, and that such did not invade the rights of the accused. Lovejoy v. State, 33 Ala.App. 414, 34 So.2d 692.’
“Hinkle v. State, 50 Ala.App. 215, 278 So.2d 218; and Smith v. State, 57 Ala. App. 151, 326 So.2d 680.
“Further, the questioning by the trial judge, in our opinion, was designed to eliminate confusion in the answers given by the witnesses, so we see no error in the questions asked. Franks v. State, 45 Ala.App. 88, 224 So.2d 924; and Smith v. State, supra.”

As noted in the above authority, the trial judge’s sacred obligation is in the ascertainment of truth. We believe that the above trial judge in the case at bar fully recognized the problem with which he was dealing and handled it in a commendable and proper manner. No error is found.

Ill

Finally, the appellant asserts as error the trial judge’s actions in sentencing the appellant to 35 years’ imprisonment, asserting that the appellant is a “first time felony offender” and that this sentence constitutes “cruel and unusual punishment.”

The trial court conducted a separate sentencing hearing in this case and found that as a juvenile, the appellant had been brought into Family Court on six different occasions. Some of these instances were with reference an attempted murder, a first degree burglary and an assault which involved the shooting of a young man. It was also brought out that certain cases were dismissed in Family Court because the witnesses declined to appear and testify against this appellant. In reviewing this record, we find the following statement by the trial judge: (Volume I, R. 192)

“THE COURT: Mr. Blaylock, looking over this, I see the motive for this doesn’t seem to be pecuniary. For instance, in this case, where you broke in in the middle of the night with a fourteen year old boy, five year old girl, and the lady living there with those children, two dollars and bicycle. It seems to run throughout your record. The motive seems to be stark, sheer terror. Assault, thirteen year old boy, attempted murder. Assault in the second degree. Assault in the second degree. Burglary in the first degree. Murder. Robbery in the first degree, which is what this is; where the victims are kids, ladies. In this case, they are made to lay down, get in the closet, sawed off shotgun, .45 automatic. And your record is replete with that sort of thing. Every victim of this reputed gang, every case I have tried involved, the victims are always kids, people who can’t fight back. And there is always a history of intimidation of witnesses. The Court, nor can society, tolerate that kind of behavior.” “It is the judgment and sentence of the Court that you be imprisoned in the penitentiary for a term of thirty-five years. Notice of appeal.”

It should be first here noted that the sentence is within the range of permissible punishment for the offense of robbery in the first degree. In light of the particular circumstances of this appellant’s activities as above set forth, we are of the opinion that the trial judge properly exercised his discretion in sentencing this appellant.

It is not proper for the appellate court to review the severity of a sentence unless there has been a clear abuse of discretion. We find no such abuse in this case. See Jenkins v. State, 367 So.2d 587 (Ala.Cr.App.), cert. denied, 367 So.2d 590 (Ala.1979); Carlton v. State, 342 So.2d 1382 (Ala.Cr.App.1977); Moore v. State, 54 Ala.App. 463, 309 So.2d 500 (1975).

We have carefully examined this record and find no error therein. The judgment is hereby affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: TYSON, Judge.

license: Public Domain

text:
    Edmond E. PAYNE v. STATE of Alabama.
    7 Div. 914, 914A.
    Court of Criminal Appeals of Alabama.
    March 23, 1982.
    Harvey B. Campbell, Jr., of Love, Love, Lawrence & Wood, Talladega, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Edmond E. Payne escaped from the Tal-ladega County Jail together with Billy Wayne Roberts and Michael Thatch on May 8, 1981.

During the course of this escape, the three men abducted Harold Kent Long and forced him to let them use his automobile to further their escape. Initially, Roberts drove the vehicle with Mr. Long on the front seat between Thatch and Roberts. The appellant was in the back seat by himself.

Mr. Long testified (R. 6) that the appellant held a knife to his throat and told him if he tried anything he would kill him.

At some point during this abduction Roberts took the victim’s watch and Thatch took his money. There was evidence that appellant later ended up with the watch (R. 14, 48), and that he asked Thatch for some of the money (R. 15).

Roberts drove the car to Gadsden and departed. Thatch then drove the car to Guntersville and departed. The appellant and Mr. Long returned to Talladega where Mr. Long escaped when the appellant left the automobile to make a telephone call.

The appellant was tried for and convicted of “escape” as recorded in this record as 7 Div. 914A (CC 81-314). He was also convicted of “robbery” with reference the watch and the money taken from Mr. Long as evidenced by the transcript labeled 7 Div. 914 (CC 81-313).

A combined sentencing hearing was held following these two convictions wherein the appellant, pursuant to the Alabama Habitual Felony Offender Act, was sentenced to life imprisonment for both crimes.

I

It is with reference the latter conviction for “robbery” that this appellant prosecutes this appeal. His sole contention is that the evidence is insufficient to support the “robbery” conviction because, although he was present in the back seat of the automobile, he did not actively participate in the “taking” of the watch or the money. Contrary to Payne’s contentions, there was sufficient evidence to convict this appellant for “robbery” either as a principal or as an accomplice. Appellant’s apparent theory is that he did not know that Roberts and Thatch were going to “rob” the victim and did nothing to encourage them. The evidence to the contrary tended to show that the appellant supplied much of the “threat of force” used in the abduction and departed with some of the “fruits” of the “robbery.” Furthermore, there is no evidence that appellant, at any time, attempted to prevent the “robbery” or that he was forced to participate therein.

We have examined both of these records and find no error. The judgments are affirmed.

AFFIRMED.

All the Judges concur.


text:
    Thomas Edward GURLEY v. STATE of Alabama.
    8 Div. 618.
    Court of Criminal Appeals of Alabama.
    March 23, 1982.
    Macon L. Weaver, Huntsville, for appellant.

      Charles A. Graddick, Atty. Gen., and Jeanne Weston, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

In a two-count indictment, Thomas Edward Gurley, was charged with unlawfully abducting Mildred Banks with intent to inflict physical injury upon her, or with intent to terrorize her in violation of § 13A-6-43, Code of Alabama 1975. The jury found the appellant “guilty of kidnapping in the first degree” and following a sentencing hearing at which four prior felonies were placed in evidence, the appellant was sentenced to life imprisonment without parole.

Mrs. Mildred Banks testified that on Wednesday, May 13, 1981, she was in her husband’s radio and stereo store in Huntsville, Alabama, when the appellant entered the store and asked her to show him a stereo player. This was shortly after 2:00 o’clock in the afternoon. After showing the stereo the appellant left.

Approximately 15 or 20 minutes later, the appellant re-entered the store and came into the warehouse and asked to speak to Mrs. Banks. She stated that she arose to come around the desk when the appellant suddenly placed a large knife at her throat and stated “if you run or holler, I will kill you.” He seized her and pulled her, twisted her arm behind her back, held her about the neck with a knife and told her to get her car keys from her purse. She stated that with one hand she reached into her purse and got the keys and that he then pulled her from the office and outside into the parking area. She stated that he had one hand around her neck near her nose and mouth and again told her “not to holler.” She stated that as they reached the parking area she saw a man that she knew at the Sears ramp and waved her arms at him and suddenly pushed back against the appellant. She stated that there was loose gravel in the parking area and appellant’s foot slipped enabling her to pull free. Mrs. Banks stated that she then ran to the Sears warehouse directly across from their place of business and telephoned the police. The following day she was shown a group of photographs by Huntsville Officer Bud Parker and immediately selected the photograph of the appellant. At trial she identified this photograph as State’s Exhibit 7.

On cross-examination, she stated that she was not physically cut by the appellant but that he did “hurt her neck” from the way he pulled her and that she had soreness and a “real bad case of nerves.” She stated that she did not know whether the police ever found the knife that appellant used or not.

Huntsville Police Officer James Parker identified a group of photographs which he showed Mrs. Banks at her home on the evening of May 14, 1981. He stated that Mrs. Banks immediately after looking through the group selected State’s Exhibit 7, which was a photograph of appellant. He stated that he did nothing other than to hand her a group of photographs of white males from which the photograph of appellant was selected.

Huntsville Police Investigator Wayne Sharpe testified that on the morning of May 15, 1981, at approximately 9:20 a. m., he interrogated Thomas Edward Gurley at police headquarters shortly after breakfast. He stated that he first read the appellant a Miranda warning and that the appellant indicated he understood this and that he wished to talk with him. He stated that the appellant was in full charge of his faculties, understood his responses and spoke in a coherent manner. Mr. Sharpe then related the following of the appellant after the jury had first been excluded and Miranda predicate and voluntariness predicate first established. The appellant’s statement is as follows: (R. 32-33)

“Q All right, what else did he relate to you please, sir.
“A He said that he had been smoking pot and got tired of walking and he decided to stop in the store and look around and he said that he went inside and looked at a stereo set and then left and went back to the railroad track and found a knife laying on the railroad track and decided to go back and get the lady’s car. He said he took the knife and went back into the store and pulled the knife on the lady and forced her outside onto the parking lot and then got scared and ran. He said that he intended to take the lady with him, drop her off in Tennessee and drive her car on to Detroit, Michigan.
“Q All right, sir what else did he say to you, if anything?
“A He said that he didn’t have any idea who the lady was but that he wasn’t going to hurt her. He said, T might rob some stores but murder ain’t my bag.’ And he said that he spent the night in the Colony Inn Motel, Room 231 and left the knife on the table in the motel room. Now, at that point I asked him to submit a written statement and he said, ‘It wouldn’t do any good. I’m going to get the bitch act anyway but I ain’t worried about it.’
“Q Did you go over to the Colony Inn, please, sir?
“A No, I didn’t.
“Q All right, do you know whether or not anyone else went over there to attempt to recover the knife?
“A Yes, sir.
“Q Did anybody find the knife in the motel room?
“A Detective Crumrine and Sergeant Norment went to Room 231 but the room had already been cleaned up.
“Q And ya’ll did not recover the knife, please, sir?
“A No.”

On cross-examination by defense counsel, the officer stated that Gurley wanted the keys to the car as he planned to take Mrs. Banks to Tennessee and leave her out some place.

At the conclusion of the State’s case, the appellant made a motion to exclude stating that the State had failed to prove the necessary elements of kidnapping.

I

Appellant first asserts that the trial court erred in allowing Detective Wayne Sharpe to relate in narrative form appellant’s statement to him, inasmuch as such statement contained “evidence of other offenses” and thus violated his constitutional rights.

It should be first here noted that the only objection made by counsel to the appellant’s statement occurred after the Miranda predicate and voluntariness predicate were first established outside the presence of the jury when counsel stated that he would like to “show an objection” which the trial court then asked what was the ground and counsel replied, “[Tjhat he (appellant) did not intelligently and truly understand what was being asked,” (Record 28-29) and therefore moved to suppress same. Since the volun-tariness and the Miranda predicates were both properly established first outside the jury’s presence, and approved by the trial judge and then related in the presence of the jury, at which time there was no objection, the issue of other offenses by the appellant is not properly before this court on appeal.

Moreover, we fail to see how the language “I am going to get the bitch act anyway, but I ain’t worried about it,” could be construed as a reference to other offenses of the appellant, and advanced by the State. Thus no error appears.

II

The appellant next asserts that the trial court erred in overruling his motion to exclude the State’s evidence asserting that there was no apprehension or harm proven and thus the State failed to prove the elements of kidnapping.

The revised Alabama statute on the subject of kidnapping is found in § 13A-6-43 Code of Alabama, 1975. This statute substantially broadens the former statutes, § 13-1-23 and § 13-1-24 Code of Alabama, as amended. Specifically, the appellant asserts that the State did not show a restraint, or an intent to harm or terrorize and therefore his motion to exclude was due to be granted.

It is quite clear under the Alabama cases that in order to prove the offense of kidnapping more is involved than the mere unlawful detention or seizure of the body of another. It is not a mere false imprisonment. There must be “an intent to secretly confine or imprison.” See Ball v. State, 335 So.2d 230 (Ala.Cr.App.1976) and Patzka v. State, 348 So.2d 520 (Ala.Cr.App.1977).

In the case at bar, Mrs. Banks’ testimony clearly established that the appellant placed a knife at her throat, seized her physically and dragged her struggling from the office where she was employed to the parking lot. He further told her, with a knife at her throat, that he would kill her if she tried to scream or get away.

Moreover, the appellant’s statement to Investigator Wayne Sharpe clearly established that the appellant intended to take Mrs. Banks in her automobile into the State of Tennessee and there leave her and flee. We are clear to the conclusion that the essential elements of kidnapping were here proven. Crews v. State, 374 So.2d 436 (Ala.Cr.App.1979) and authorities therein cited. Thus the trial court properly overruled appellant’s motion to exclude and submitted this case to the jury.

Ill

At the close of the trial court’s oral charge we find the following exception: (R. 51)

“THE COURT: State your exceptions, Gentlemen.
“MR. WEAVER: The defendant objects to that portion of the Court’s oral charge in defining abduct in that the Court failed to add after the victim’s liberation the following by substantial removal, isolation, or concealment and/or the use of violence usually associated with the condition of kidnapping.
“THE COURT: Okay, denied. Tell them to commence.”

In § 13A-6-40(2) Code of Alabama, 1975, we find the following definition of the term “abduct”, which is to be read in conjunction with our two kidnapping statutes, §§ 13A-6-43 and 13A-6-44. This section reads as follows:

“(2) Abduct. To restrain a person with intent to prevent his liberation by either: “a. Secreting or holding him in a place where he is not likely to be found or “b. Using or threatening to use deadly physical force.”

The trial judge in his oral charge, R. 47-48, properly covered this element as follows:

“The term abduction means or abduct means to intentionally and knowingly restrict a person’s movements unlawfully and without consent with intent to prevent that person’s liberation by threatening to use physical force. Now an abduction of the victim with the requisite intent is sufficient to establish commission of the offense. It is not necessary that the criminal purpose actually be accomplished for the crime of kidnapping in the first degree to be committed. Deadly physical force as I have used that term, Ladies and Gentlemen, means the following. It means physical force which under the circumstances in which it is used is readily capable of causing death or serious physical injury and serious physical injury in that definition, Ladies and Gentlemen, means physical injury which creates a substantial risk of death or which causes serious and protracted disfigurement, protracted impairment of health, protracted loss or impairment of the function of any body organ.
“To reiterate, abduction means to intentionally and knowingly restrict a person’s movement unlawfully and without consent and with the intent to prevent his liberation by threatening to use deadly physical force. It is not necessary that the criminal purpose for which the abduction, if there was an abduction came about, actually be accomplished for the crime of kidnapping in the first degree to be committed.”

The trial court gave full and proper instructions on the elements of kidnapping in the first and second degree. Thus no error appears.

IV

Finally, the appellant asserts as error the trial court’s sentencing of him as a habitual offender.

It should be first here noted that the District Attorney gave notice immediately following the jury’s verdict that the State would elect to proceed as a habitual offender. A separate sentencing hearing followed with counsel present at a subsequent date. At the sentencing hearing, the following four prior convictions were placed in evidence: (R. 71)

“1. Buying, Receiving, Concealing Stolen Property — Date of Conviction: October 18, 1979
“2. Burglary to Auto Date of Conviction: October 18, 1979
“3. Theft of Property Date of Conviction: May 6, 1980
“4. Escape
Date of Conviction: May 6, 1980”

We are of the opinion that the trial court properly sentenced the appellant in this cause. No error appears.

We have carefully examined this record and find same to be free of error. This judgment is therefore affirmed.

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    Elwood Clark BARCLAY, Appellant, v. STATE of Florida, Appellee.
    No. 47260.
    Supreme Court of Florida.
    June 4, 1981.
    Rehearing Denied April 14, 1982.
    Kenneth Vickers and Steven E. Rohan of Vickers & Rohan, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This case returns to us following our remand to the trial court in order to provide Barclay an opportunity to rebut or explain matters appearing in a presentence investigation report (PSI). Barclay v. State, 362 So.2d 657 (Fla.1978). Before that remand, Barclay’s conviction and sentence for first degree murder had been affirmed by this Court, and review of that action had been denied by the United States Supreme Court.

On remand Barclay was afforded several evidentiary hearings and argument of counsel. Only one witness was called on Barclay’s behalf at the first hearing, principally to portray Barclay’s lesser role in the events surrounding the murder, and to comment on a second murder with which he was not involved. At a second hearing, Barclay’s counsel argued extensively against the reimposition of the death penalty, but offered virtually no evidence in derogation of the information contained in the PSI. The trial judge concluded during a later sentencing proceeding that he had “carefully considered all of those matters presented by the defendant in response to the presen-tence investigation report, and [found] nothing is such responses which mitigates any circumstance herein.” Our independent review of the record in this case completely supports this conclusion.

Barclay now challenges the reimposition of a death sentence, primarily by argument against the findings previously reviewed here and affirmed. We cannot accept counsel’s suggestion that we abrogate the “law of the case”. See Dougan v. State 398 So.2d 439 (Fla. 1981). The dictates of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), have been met, and no' defect in the original sentencing order has been identified as stemming from improper material in the PSI. There being no reason to reconsider the matters previously analyzed, we again affirm the trial judge’s sentence of death.

It is so ordered.

ADKINS, Acting C. J., and BOYD, ENGLAND and ALDERMAN, JJ., concur.

OVERTON and McDONALD, JJ., dissent.

      . Barclay v. State, 343 So.2d 1266 (Fla.1977).

      . Barclay v. Florida, 439 U.S. 892, 99 S.Ct. 249, 58 L.Ed.2d 237 (1978).


author: PER CURIAM. JOANOS, Judge. BOOTH, Judge,

text:
    Harold C. HUBBARD, III, Appellant, v. STATE of Florida, Appellee.
    No. VV-439.
    District Court of Appeal of Florida, First District.
    July 10, 1981.
    On Rehearing Feb. 23, 1982.
    Rehearing Denied April 29, 1982.

      Michael Allen, Public Defender, and Nancy A. Daniels, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

We affirm the appellant’s conviction for the knifepoint robbery of a convenience store. Of Hubbard’s seven points on appeal, two require comment.

Hubbard was seventeen years old and subject to the jurisdiction of the juvenile justice system when the crime occurred on July 18,1977. Section 39.01(4), 39.02, Florida Statutes (1977). At the time, a juvenile could be involuntarily transferred into the adult criminal justice system in two ways: pursuant to a waiver hearing conducted by a judge, or upon indictment by the Grand Jury for crimes punishable by death or life imprisonment. Section 39.02(5)(a), (c), Florida Statutes (1977). In 1978, the legislature enacted 39.04(2)(e)4 which permits state attorneys to charge sixteen and seventeen year old juveniles as adults by filing infor-mations directly in circuit court, thereby bypassing the juvenile system. After this provision took effect, the state attorney filed an information charging Hubbard with the 1977 robbery with a deadly weapon. On appeal, Hubbard argues that because the “direct file” statute was not in effect at the time of the crime, the prosecutor’s procedure was an impermissible ex post facto application of law.

Under the circumstances of this case we disagree because application of the direct file statute did not substantively alter Hubbard’s situation to his disadvantage. See Prince v. State, 398 So.2d 976 (Fla. 1st DCA 1981). Robbery with a deadly weapon is a crime punishable by life imprisonment, Section 812.13(2)(a), so the state attorney at the time of the commission of the crime could have initiated indictment proceedings to have the defendant tried as an adult. In the context of waiving juvenile jurisdiction, the difference between indictment and information is procedural, not substantive. State v. Cain, 381 So.2d 1361 (Fla.1980). Therefore, Hubbard’s motion to dismiss was properly denied.

The appellant also urges reversible error in the trial court’s denial of his request for a jury instruction on minimum and maximum penalties. See Tascano v. State, 393 So.2d 540 (Fla.1980), reh. denied February 27, 1981. However, Hubbard did not object to the judge’s failure to give such an instruction, so this point is not preserved for our determination. Holland v. State, 400 So.2d 767, No. WW-55 (Fla. 1st DCA opinion filed April 10, 1981) [1981 F.L.W. 860], But see Williams v. State, 399 So.2d 999 (Fla. 3rd DCA 1981), n. 6; Saulsberry v. State, 398 So.2d 1017 (Fla. 5th DCA 1981).

Accordingly, judgment of the trial court is AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH and JOANOS, JJ., concur.

ON MOTION FOR REHEARING EN BANC

JOANOS, Judge.

In his pleading styled “Motion for Rehearing, Rehearing in Banc, or Certification,” appellant Hubbard has set forth a number of arguments directed at our earlier per curiam opinion in this proceeding. We reaffirm our earlier opinion regarding all points except the issue of the trial judge’s failure to instruct the jury on penalties. In regard to that issue and especially the question of “What is required under Florida Rule of Criminal Procedure 3.390(d) for preserving as a point on appeal, a judge’s failure to give a requested instruction?”, we have determined under Florida Rule of Appellate Procedure 9.331 that en banc consideration should be afforded in order to maintain uniformity in this Court’s decisions.

After en banc consideration we hold that Hubbard’s conviction and sentence should be reversed and remanded for a new trial because of the judge’s failure to give an instruction on penalties as required by Tascano v. State, 393 So.2d 540 (Fla.1980).

In the earlier opinion in this proceeding, appellant’s argument for a new trial based on Taseano was rejected for the reason that appellant “did not object” and, therefore, the point was not preserved for appellate review. To support that position, we cited an earlier opinion of this Court, Holland v. State, 400 So.2d 767 (Fla. 1st DCA 1981). However, since our initial opinion was released, the earlier Holland opinion was vacated on rehearing, 400 So.2d 768 (Fla. 1st DCA 1981), with the Court holding that a colloquy in the record there sufficiently preserved the failure to give a requested instruction for appellate review. The verbal exchange between judge and counsel in Holland is similar to what occurred between judge and counsel in the instant appeal. This development has resulted in what we view as a conflict between the opinion on rehearing in Holland and earlier opinions of this Court, including Washington v. State, 392 So.2d 599 (Fla. 1st DCA 1981), Davenport v. State, 396 So.2d 232 (Fla. 1st DCA 1981), and Spurlock v. State, 403 So.2d 435 (Fla. 1st DCA 1981).

Our quest to resolve the issue begins with reference to Florida Rules of Criminal Procedure 3.390(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 of which he objects, and the grounds of his objection. Opportunity shall be given to make the objection out of the presence of the jury.

It is clear from a reading of the rule that a defendant must object to a trial judge’s failure to give a requested instruction and that the grounds for the objection must be stated.

In Castor v. State, 365 So.2d 701, 703 (Fla.1978), the Supreme Court stated that to satisfy the rule, “. . . an objection must be sufficiently specific both to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal.” We believe that this statement best describes the objective of Rule 3.390(d). The primary thrust of the rule is to insure that the trial judge is made aware that an objection is being made and that the grounds therefor are enunciated. We do not believe that the rule was intended to approve or disapprove a special word formula; we will not exalt form over substance by requiring that counsel use the magic words, “I object,” so long as it is clear that the trial judge was fully aware that an objection had been made, that the specific grounds for the objection were presented to the judge, and that the judge was given a clear opportunity to rule upon the objection.

In considering the motion filed by Hubbard in this proceeding, we have studied the colloquy between the trial judge and Hubbard’s counsel. It is now our view that the requirements of Florida Rule of Criminal Procedure 3.390(d) were fulfilled for preserving as a point on appeal the judge’s failure to instruct the jury on penalties. The trial court asked Hubbard’s attorney if he wished to have an instruction on penalties and the attorney responded that he did. The trial judge refused the instruction, stating:

Well for the reasons that I have expressed in previous trials I have had with both of you gentlemen, I decline to instruct on penalties relying on the First District Court decision which the name of the case escapes me for the moment.

After the instructions were given, the trial court asked the attorneys if there were any “exceptions or objections to the instructions as given other than those already duly noted,” and appellant’s attorney responded, “none.” Thus, it is clear from the record that the trial judge was treating Hubbard’s counsel’s position as an objection to the instructions. It is further clear that he was aware of the grounds for the objection and his reason for overruling the objection was set out by his reference to “the First District Court decision” which was obviously Tascano v. State, 363 So.2d 405 (Fla. 1st DCA 1978) which was reversed by the Supreme Court after the trial in the instant proceeding in Tascano v. State, 393 So.2d 540 (Fla.1981).

Our opinion here is consistent with our opinion on rehearing in Holland. That trial occurred two weeks before the trial in this case and it involved the same judge and defense attorney. At the Holland charge conference, the judge made it clear to defense counsel that he was not going to give an instruction on penalties. In the process the trial judge cited this court’s decision in Tascano as support for his denial of the request. Before the jury retired, the judge asked if there were “any exceptions or objections to the instructions as given, other than those already duly noted?” The lawyer replied: “No, sir.” The Holland panel found that the circumstances were such as to “. . . indicate an objection on the record to the failure of the trial court to give such instruction.”

However, our opinion here is somewhat inconsistent with our opinions in Washington, Davenport and Spurlock on the issue of the requirements of Rule 3.390(d) and we, therefore, recede from those opinions to the extent that they conflict with this one.

We hold that where the record demonstrates the trial judge was fully aware that an objection was made to the failure to instruct on penalties, that the specific grounds for the objection were presented, and that the judge was given a clear opportunity to rule on the objection, then the issue is preserved for appellate review.

REVERSED and REMANDED for new trial.

ROBERT P. SMITH, Jr., C. J., and McCORD, MILLS, ERVIN, LARRY G. SMITH, SHIVERS, SHAW, WENT-WORTH, THOMPSON and WIGGINTON, JJ., concur.

BOOTH, J., dissenting.

BOOTH, Judge,

dissenting:

I do not agree with my colleagues that defendant has preserved the “Tascano" issue for appeal. The record reveals that defense counsel failed to state an objection at any point during the trial; that he failed to state any grounds for an objection; failed to make the refusal to give the requested instruction a ground of his motion for new trial; and, failed to include this point in the “Statement of Judicial Acts to be Reviewed” filed in this court.

The Florida Supreme Court, in Tascano, supra, holds that the giving of the penalty instruction under Rule 3.390(a) is mandatory if requested, but that the court’s failure to give that instruction is not fundamental error. Thus, the Tascano decision holds that the error must be preserved. It is to be noted that Rule 3.390, mandating the penalty instruction when requested also mandates that counsel object by, “[1] stating distinctly the matter of which he objects and [2] the grounds of his objection.” Neither of these two requirements were met in the instant case.

In Kelly v. State, 389 So.2d 250, 251 (Fla. 2d DCA 1980), the court correctly stated the rule:

Florida Rule of Criminal Procedure 3.390(d), provides that a party must object to the giving or the failure to give a requested instruction. Furthermore, that rule requires the objecting party to distinctly state the grounds for his objection. In this same vein, our supreme court noted in Castor v. State, 365 So.2d 701 (Fla. 1978), that a timely objection is required where the error relates to the giving or failing to give a particular jury instruction.
In the instant case, although defense counsel twice requested the instruction concerning maximum penalties, he neither objected to the court’s refusal to give the instruction nor stated the grounds upon which his request was made. Therefore, appellant did not preserve this issue for appeal, [emphasis supplied]

The most that can be said in the instant case, as in Kelly, supra, is that counsel requested an instruction, which was refused. This is clearly insufficient. The general inquiry by the court at the conclusion of the trial as to whether either counsel had objections “other than those duly noted” adds nothing, since there was no objection stated and none noted in the record.

The Florida Supreme Court, in Castor v. State, 365 So.2d 701, 703 (Fla.1978), holds that the purpose of Rule 3.390(d) is twofold, to-wit: (1) “to apprise the trial judge of the ... error” and (2) “to preserve the issue for intelligent review on appeal.” The trial court is confronted with numerous decisions in the course of a trial and must have those of the court’s decisions which counsel views as potential ground for appeal identified clearly. Defense counsel is thereby required to commit himself prior to the verdict as to those errors which he views as sufficient for appeal, an important point, as held in Owens v. State, 349 So.2d 197, 198 (Fla. 1st DCA 1977), cert. dismissed, 353 So.2d 677 (Fla.1978), German v. State, 379 So.2d 1013, 1014 (Fla. 4th DCA 1980), and Barrett v. State, 266 So.2d 373, 375 (Fla. 4th DCA 1972):

The accused in a criminal proceeding is not entitled to the privilege of refraining from making timely objection to matters felt to be prejudicial, and then waiting until the relative strength of the prosecution and defense presentations can be evaluated before raising a cry of prejudice.

The second purpose stated in Castor is to allow intelligent review on appeal. The appellate court should not be required to search the record in all criminal cases raising issues as to jury instructions and interpret colloquy between counsel and the court concerning instructions to determine the state of mind of counsel in perhaps objecting, and of the court in being aware that an objection was being made. Only where the error is fundamental is the necessity for objection dispensed with. The majority opinion here, however, obligates the appellate court to review the record to find whether an objection was made and understood even though there is no fundamental, or even prejudicial, error.

Motions for new trial are governed by Rule 3.600(b)(7), Fla.R.Crim.P., which provides, in pertinent part:

The court shall grant a new trial if any of the following grounds is established, providing substantial rights of the defendant were prejudiced thereby: . . . [t]hat the court erroneously . . . refused to give a proper instruction requested by the defendant.

Of course, in order to make the failure to give an instruction a grounds for motion for new trial, there must have been a proper objection at trial, as stated in the comment following the new trial rule:

[T]he rule recognizes an erroneous instruction to the jury or refusal to give requested instructions as a ground for new trial, but counsel should first have raised the issue by an objection pursuant to Rule 3.390, supra, and Appellate Rule 6.16 in order to assign the issue as error or as a ground of appeal.

In Wilson v. State, 383 So .2d 670 (Fla. 5th DCA 1980), defense counsel objected to the trial court’s giving of a particular instruction to the jury but did not include the specific issue in the new trial motion. On appeal, the District Court found that the instruction was erroneous but that the error had not been preserved because defendant had failed to state the grounds of his objection, and his motion for new trial did not assign the error sufficiently, holding (383 So.2d at 671):

Defendant can only assert the error on appeal if he made a timely objection to the instruction or if the error is fundamental error. Defendant’s objection was timely. He failed, however, to state the grounds of his objection as required by Rule 3.390(d), Florida Rules of Criminal Procedure. Defendant’s motion for new trial alleged the court had erred in instructing the jury on the offense of assault upon law enforcement officer on the ground that the offense was not established by the evidence. At no time did defendant assert as a ground for his objection the failure of the state to allege the crime of which defendant was convicted. Therefore, though timely made, defendant’s objection was insufficient to preserve the point for review.

In the instant case, there are no compelling circumstances which, in the interest of justice, should move this court to waive the requirements of Rules 3.390(d) (objections) and 3.600(b)(7) (new trial motion), Fla.R. Crim.P. Defendant was tried and convicted of robbery with a deadly weapon based on evidence establishing his guilt of the offense charged. The trial was fairly conducted by an able and experienced trial court. The court, properly relying on law then in existence, denied the defense’s request for an instruction on penalties. There was no objection by counsel to the court’s refusal to give the instruction. Following the verdict, defense counsel filed a motion for new trial which did not assign as error the failure of the trial court to give the requested instruction. Motion for new trial was denied, and judgment and sentence were entered May 30,1980. Notice of appeal was filed June 2, 1980, and, on June 5, 1980, defendant. filed a “Statement of Judicial Acts to be Reviewed,” which stated, as the sole act to be reviewed,' “the denial of defendant’s motion for a new trial on the 30th day of May, 1980.” On June 19, 1980, defense counsel asserted for the first time error in failing to give the penalty instruction, filing a purported supplement to new trial motion in the trial court. At that time, the trial court, having denied the new trial motion and notice of appeal having been filed, had no further jurisdiction.

Non-fundamental error can be waived. Technical objections are grounds for appeal only if preserved as required by the rules. I would affirm the judgment of conviction below.

      . The prohibitions against ex post facto laws, U.S. Const. Art. I, § 10, Fla.Const. Art. I, § 10, require that an otherwise valid law may not be applied to a defendant against whom it would have an ex post facto effect. E. g., Greene v. State, 238 So.2d 296 (Fla. 1970).

      . “We do not see how a state attorney’s decision to seek an indictment against a juvenile ... is distinguishable from a state attorney’s decision to file an information against a juvenile. In either case the legislature has ... returned to the state attorney his traditional prerogative of deciding who to criminally charge with what offense. * * * Moreover, the requirement of a grand jury indictment only ensures that there is probable cause for the charge — it does not determine the propriety of prosecuting a juvenile as an adult.” 381 So.2d at 1364-65.
      In a broader context, other jurisdictions have found the difference between indictment and information to be procedural, and therefore not subject to ex post facto challenge. See State v. Kyle, 166 Mo. 287, 65 S.W. 763 (1901) and cases cited therein.

      .The direct file statute includes a mechanism to return the cause to the auspices of juvenile court upon motion for transfer, supported by a showing that the defendant has not previously committed two delinquent acts, one a felony. Here, the defendant apparently chose not to move for such a transfer but moved instead to dismiss the information.

      . Failure to instruct on penalties in this case cannot be considered harmless error. See Murray v. State, 403 So.2d 417 (Fla.1981).

      . It is important to note that the rule on the civil side, Florida Rule of Civil Procedure 1.470(b) is somewhat different for various reasons. Our analysis here should not be viewed, in any way, as an interpretation of the civil rule.

      . Murray v. State, 403 So.2d 417 (Fla.1981). The harmless error rule does not apply to penalty instruction cases.

      . Rule 3.590, Fla.R.Crim.P.; State v. Pinto, 273 So.2d 408, 411 (Fla. 3d DCA 1973), cert, dismissed, 283 So. 2d 367 (Fla.1973) (trial court loses jurisdiction upon disposition of timely filed motion for new trial).


author: BERANEK, Judge. BERANEK, Judge,

text:
    GLADES GENERAL HOSPITAL and Ahmed H. Barhoush, M.D., Petitioners, v. John Melvin LOUIS, a minor by and through his parents and next friends, Roland Louis and Marie Luce Julien Louis, and Marie Luce Julien Louis, individually, and The Florida Patients Compensation Fund, Respondents.
    No. 81-1259.
    District Court of Appeal of Florida, Fourth District.
    Sept. 16, 1981.
    Walton, Lantaff, Schroeder & Carson, West Palm Beach, for petitioner, Glades General Hospital, and Marjorie D. Gadarian and L. Martin Flanagan of Jones & Foster, P. A., West Palm Beach, for petitioner, Barhoush.
    Mark Poses of Keyfetz & Poses, P.A., Miami, for respondents.
   BERANEK, Judge.

This is a petition for common law certio-rari filed as an emergency seeking to overturn a trial court’s order regarding discovery. The petition is brought by two defendants in a medical malpractice case. The case was specially set for a jury trial to begin on July 27, 1981. The lawyers representing the defendants in this case are involved in another medical malpractice case which was specially set for the two-week period immediately preceding the trial of the instant case. Defense counsel were thus completely unavailable during the two-week period immediately preceding the scheduled date of the trial.

A pretrial conference occurred in the matter on July 9, 1981. At that time, by agreement, additional witness lists were filed by plaintiff and each of the two defendants. Each party added several new witnesses which opposing counsel were unaware of. At the pretrial conference, plaintiffs’ counsel sought permission to depose the new witnesses added by the defendants and also sought permission to take a videotape deposition of plaintiffs’ own out-of-state medical expert. Defendants objected to any further discovery by any party of any new witness and in the alternative sought a continuance of the trial. Defense counsel took the position that no discovery should occur and that all of the new witnesses should simply be called to testify in the trial without being subject to pretrial discovery. Defense counsel did not object to plaintiffs’ calling the new witnesses at trial. The objection was to the plaintiffs’ deposing any of plaintiffs’ own witnesses or any of the newly noticed defense witnesses in the two-week period prior to trial when defense counsel would be unavailable. Plaintiffs countered that they should not be prevented from discovery merely because defense counsel were unavailable in the crucial period immediately prior to trial. The trial court denied the motion for continuance and allowed, all parties to proceed with depositions on the newly noticed witnesses. It is conceded that each defense counsel is a member of a firm having other lawyers who could participate in the discovery. It is further clear that these other lawyers are nowhere near as knowledgeable of the case, but will merely be pinch hitting for trial counsel.

We are sympathetic with defense counsel, but the question is not whether the members of this panel would have granted a continuance under similar circumstances but rather whether the trial judge abused his discretion in failing to grant the continuance. The grant or denial of a continuance is a matter within the sound discretion of a trial judge. State v. Florida State Turnpike Authority, 134 So.2d 12 (Fla. 1961). We feel this is particularly true in regard to pretrial discovery scheduling matters. The trial court has a far superior vantage point as to prior discovery which has gone on, the necessity for further discovery, and the many considerations which go into managing a trial docket and granting continuances. The action of the trial court will not be disturbed by the appellate court unless there is clearly shown to have been a palpable abuse of judicial discretion. Edwards v. Pratt, 335 So.2d 597 (Fla.3d DCA 1976); Williams v. Gunn, 279 So.2d 69 (Fla.1st DCA 1963). The burden of establishing abuse of discretion is on the party complaining of the trial court’s action. Aeree v. State, 153 Fla. 561, 15 So.2d 262 (1943).

Several matters support the exercise of the trial court’s discretion herein. Initially, the transcript of the pretrial conference shows all counsel stipulated that additional witnesses could be added at the time of the conference. When counsel stipulate to the addition of new witnesses two weeks prior to trial, there is a clear implication that these witnesses should be subject to discovery, at least in the absence of a stipulation to the contrary. Defendants also wanted to add additional witnesses and we certainly cannot fault the trial judge for allowing plaintiffs to proceed with discovery of these additional defense witnesses.

On petition before this Court, the defendants complain that plaintiff had not answered certain expert witness interrogatories propounded under Rule of Civil Procedure 1.280(b)(3)(A). Defendants contend they were surprised by plaintiff’s new expert since these expert witness interrogatories had not been answered. The transcript of the pretrial conference indicates absolutely no mention of plaintiffs’ failure to answer these interrogatories. Since this matter was not brought to the trial court’s attention, we cannot consider it. Further, since the defendants added expert witnesses pursuant to stipulation at the last minute, plaintiffs cannot be faulted for doing so pursuant to the same stipulation.

As we see it, the stipulation to add witnesses late and the total unavailability of both defense counsel during the crucial two-week period prior to the trial presents a dilemma. On the one hand, the plaintiffs’ medical expert may appear and testify at trial with defendants having absolutely no idea what that testimony would be. On the other hand, the doctor would testify in a videotaped deposition prior to trial, and the cross-examination would be handled by another lawyer from defense counsel’s firm who would be less knowledgeable than trial counsel. Even though a continuance of the entire case is an appealing third alternative, we cannot conclude that the trial judge, in his superior vantage point, clearly abused his discretion in choosing to allow the deposition to proceed with substitute counsel rather than trial counsel.

We, therefore, deny the emergency petition for certiorari with a note of caution that the admissibility at trial of the videotaped deposition has obviously not yet been ruled upon.

CERTIORARI DENIED.

LETTS, C. J., and GLICKSTEIN, J., concur.

BERANEK, J., concurs specially with opinion.

BERANEK, Judge,

concurring specially:

I also write separately to suggest a possible solution for resolution of similar future problems. Rule of Civil Procedure 1.300(c) states that the parties may stipulate that a deposition may be taken “in any manner.” Even if trial counsel must send substitute counsel to pinch hit at this deposition, a telephone conference hookup would allow trial counsel to remain in Florida, hear the deposition as it occurs, and confer with substitute counsel privately by phone during his cross-examination of the witness. I see no reason why the telephone and various other electronic means should not be employed in conjunction with and in addition to videotaped depositions.

      . We previously ruled upon this matter by denial of the writ with opinion to follow.

      . We recognize the failure to answer interrogatories was mentioned in a later hearing on another matter.


author: SCHEB, Chief Judge.

text:
    STATE of Florida, Petitioner, v. John Francis BLASI, Respondent.
    No. 81-1647.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1981.
    Rehearing Denied Dec. 18, 1981.

      James T. Russell, State Atty. and C. Marie King, Asst. State Atty., Clearwater, Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for petitioner.
    A. R. Mander, III of Greenfelder & Man-der, Dade City, for respondent.
   SCHEB, Chief Judge.

Defendant, John Francis Blasi, was indicted on two counts of first degree murder of a store salesman and a waitress who came to the salesman’s aid during a robbery attempt. On August 7, 1981, after a five-day trial, the jury returned a verdict of guilty of attempted murder on each count. The verdict was read in open court by the deputy clerk. At the request of the state, the twelve members of the jury were then individually polled and each juror acknowledged the verdict. The trial judge then formally adjudicated the defendant guilty on each count of attempted first degree murder with a firearm, and the defendant was taken to the county jail. Thereafter, the trial judge formally discharged the jurors. Deputy sheriffs then transported the jurors, who had been sequestered during the week of the trial, from the courthouse to the hotel so they could get their personal belongings. At the hotel, it became apparent to deputy sheriffs escorting the jurors that the panel believed they had found defendant guilty of first degree murder.

The deputies notified the assistant state attorney who had tried the case, and he, in turn, notified the trial judge. The trial judge agreed to sequester the jury for the night and hear any motions that the state wished to make the next morning. On August 8, the state filed a motion to vacate which stated in part:

3. That Sgt. Greg Devlin of the Pasco County Sheriff’s Office who assisted in the security of the jury learned from all the jury members while the jury was still sequestered shortly after the rendition of their verdicts that the guilty verdicts of Attempted Murder in the First Degree had mistakenly been signed by the foreperson and that all members of the jury stated that their unanimous verdict had been and was guilty as charged of Murder in the First Degree.

Affidavits of the deputy sheriffs filed August 11, further elaborated the circumstances mentioned in the motion to vacate as follows. Upon arrival at the hotel a few minutes after the verdicts had been published, one of the deputies asked a juror how they had arrived at the verdict. When the juror responded that defendant was guilty of killing the victims, Detective Sgt. Devlin informed him that they had convicted the defendant of attempted first degree murder. Devlin then asked the assembled jurors, who were still sequestered, whether they had intended to convict the defendant of first degree murder. They collectively replied that they did, and the foreperson declared that she must have signed the wrong verdict form. .

On August 11, the trial judge denied the motion to vacate after refusing to allow the state to call witnesses in support of it. The state seeks review of that order by this petition for writ of certiorari, arguing that under the circumstances it has alleged a trial court may correct a verdict it has entered.

If the matters raised “inhere in the verdict,” the verdict is not subject to attack. Matters which inhere in the verdict are those which arise during the deliberation process. Thus, a verdict will not be overturned where one juror alleges that his will was overborne by another juror or where a particular verdict was based on a mistaken presumption.

However, where matters do not inhere in the verdict such as where the jury was subject to impermissible outside influences or where the verdict given was not the one which the jury intended, the verdict is subject to collateral attack. Here, the state alleged that the foreperson signed the wrong verdict form. This does not appear to be a case where the jury entered the verdict they meant to enter and later alleged mistaken reasons for such verdict. Instead, it is analogous to “a mistake in announcing or recording the verdict,” which is an exception to the general rule that the motives of the jury may not be looked into. Branch v. State, 212 So.2d 29 (Fla.2d DCA 1968). We agree that such a mistake as the state alleges would not inhere in the verdict and, thus, the verdict may be subject to collateral attack.

Notwithstanding that the matters alleged here, if true, would not inhere in the verdict, the verdict may still not be subject to correction if the length of time that transpired after the jury returned the verdict and the events occurring during such time “contaminated” the jury. The only case we have discovered in which a correction of a mistake was permitted at the state’s request is Masters v. State, 344 So.2d 616 (Fla. 1st DCA 1977). There, the court emphasized that the jury was still in the courthouse and there was very little opportunity for outside communication. While other cases holding that particular matters do not inhere in the verdict do not make contamination an issue, those cases do reverse convictions in favor of defendants. In this case, then, if the trial court determines that there was a mistake by the jury which does not inhere in the verdict it must consider whether the jury has been contaminated by some outside influence so as to preclude correction of the verdict.

Because the alleged circumstances here do not appear to us to inhere in the verdict, we vacate the order of the trial judge and remand for a full evidentiary hearing at which the court shall hear evidence on the circumstances of the alleged mistake of the jury. If the court finds that the matters alleged by the state are true and therefore do not inhere in the verdict, the court should further determine if the jury was contaminated. Then if the court finds that the jury was not contaminated, the verdict should be corrected.

REVERSED AND REMANDED.

HOBSON and CAMPBELL, JJ., concur.

      .In the following cases, the matters raised were held to inhere in the verdict. See State v. Ramirez, 73 So.2d 218 (Fla.1954) (erroneous belief by one juror that majority of jury ruled); Parker v. State, 336 So.2d 426 (Fla. 1st DCA 1976) (juror voted guilty so she wouldn’t have to be locked up for the night); Smith v. State, 330 So.2d 59 (Fla. 1st DCA 1976) (jury mistakenly believed a lesser offense was highest offense charged); Branch v. State, 212 So.2d 29 (Fla. 2d DCA 1968) (jury did not follow instruction); and State v. Smith, 183 So.2d 34 (Fla. 2d DCA 1966) (jury in disagreement as to what they intended).

      . In the following cases, the matters raised were held not to inhere in the verdict. See Masters v. State, 344 So.2d 616 (Fla. 1st DCA 1977) (jury signed two verdicts); and Russ v. State, 95 So.2d 594 (Fla.1957) (one juror claimed personal knowledge of the case and influenced the jury).

      . See Russ v. State, 95 So.2d 594 (Fla.1957) and Crapps v. Murchek, 330 So.2d 173 (Fla. 4th DCA 1976).


text:
    VENETIAN COVE CLUB, INC., a Florida corporation, and Herbert A. Elliott, Appellants, v. VENETIAN BAY DEVELOPERS, INC., a Florida corporation, Nelson A. Faerber and Nile M. Marriott, Jr., Appellees.
    No. 81-609.
    District Court of Appeal of Florida, Second District.
    Jan. 8, 1982.
    Donald T. Franke of Franke & Bryant, P. A., Naples, for appellants.
    Nelson A. Faerber, Jr., Naples, for appel-lees.
   SCHEB, Chief Judge.

Appellants, Venetian Cove Club, Inc., a condominium association, and Herbert A. Elliott, a unit owner, challenge the trial court’s order assessing attorney’s fees in favor of appellees. We reverse.

Appellant, a condominium association, leases the parking and recreation areas associated with the condominium from the appellees. In January 1979 appellants filed suit against the architect, engineer, general contractor, and developer of the condominium seeking damages for alleged construction defects. In June appellants moved the court, pursuant to section 718.401(4), Florida Statutes (1977), to enter an order authorizing them to pay rent to appellees into the registry of the court pending the outcome of the litigation. Over the objection of appellees, the trial court granted the motion and entered an order requiring the condominium association to make payments into an interest-bearing account, as stipulated by the parties, in lieu of the court registry. Appellees took an interlocutory appeal to the supreme court challenging the constitutionality of section 718.401(4). On November 15, 1979, the supreme court declared the statute unconstitutional in Pomponio v. Claridge of Pompano Condominium, 378 So.2d 774 (Fla.1980). On the authority of Pomponio the supreme court reversed the trial court’s order, Marriott v. Venetian Cove Club, Inc., No. 57,438 (Fla., July 10, 1980), after which the association released the rental payments to the appellees.

Appellees then moved to assess attorney’s fees against appellants for the fees they incurred in obtaining direct payment of the rent. The trial court granted the motion and entered an order on January 9, 1981, assessing a fee of $10,000, the amount requested by appellees.

Appellees cited two contractual provisions as the basis for the award of fees. Section 12.2 of the Declaration of Condominium provides:

12.2 Costs and Attorney’s Fees. In any proceeding arising because of an alleged failure of an apartment owner or the Association to comply with the terms of the Declaration of Condominium, Articles of Incorporation of the Association, the By-Laws or the regulations adopted pursuant to them, and the documents and regulations as they may be amended from time to time, the prevailing party shall be entitled to recover the costs of proceeding and such reasonable attorney’s fees as may be awarded by the court.

Paragraph 11(f) of the Lease Agreement between the parties states:

It is further understood that lessee will pay in addition to the fees and other sums agreed to be paid hereunder, such additional sums as the court may adjudge as reasonable attorney’s fees in any suit or action instituted by lessor to enforce the provisions of this lease or the collection of their rent due lessor hereunder.

Appellees recognize that the action instituted by appellants to recover damages for construction defects was not a proceeding which would entitle them to any award of attorney’s fees under the quoted provisions. They urge, however, that the proceeding contesting the constitutionality of the statute constituted an action to enforce the condominium association’s obligation to make rental payments.

In Florida the courts apply a strict construction to agreements providing for the award of attorney’s fees. Ohio Realty Investment Corp. v. Southern Bank, 300 So.2d 679 (Fla.1974); Stone v. Town of Mexico Beach, 348 So.2d 40 (Fla. 1st DCA 1977). Viewing these provisions in that light we conclude that they were only intended to provide for the recovery of attorney’s fees in cases where the lessor prevailed in an action based on the lessee’s failure to comply with the condominium documents and regulations or the lease. Here, rather than failing to pay rent, the association, as lessee, merely asserted its right under a facially valid statute to make payments into an escrow account pending the outcome of the litigation. The proceeding instituted by appellees challenging the constitutionality of the statute cannot be construed as an enforcement action within the meaning of the above-stated provisions because appellants never violated any of these terms.

Appellees rely on Discount Drugs, Inc. v. Tulip Realty Corp., 396 So.2d 764 (Fla. 4th DCA 1981), to sustain the trial court’s judgment. Discount is distinguishable on its facts. There the court held that a lessee’s payment into an escrow account in accordance with a stipulation between parties was not payment to the lessor and hence rendered the lessee liable under a provision of the lease requiring a defaulting lessee to pay attorney’s fees. Here, payment was made pursuant to a statute conferring such a right upon appellants.

We vacate the order requiring appellants to pay attorney’s fees.

CAMPBELL and SCHOONOVER, JJ., concur.


author: GRIMES, Judge.

text:
    BACHE HALSEY STUART SHIELDS INCORPORATED, Appellant, v. Christine R. WITOUS and John M. Witous, Appellees.
    No. 81-1396.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 1982.

      Curtis Carlson of Fowler, White, Burnett, Hurley, Banick & Strickroot, P. A., Miami, for appellant.
    James E. Deakyne, Jr., and Robert F. Nunez, St. Petersburg, for appellees.
   GRIMES, Judge.

This appeal involves the question of whether appellant is entitled to an award of attorney’s fees for the prosecution of its claim of interpleader.

Christine R. Witous brought suit against appellant, a stock brokerage firm, alleging that on July 16, 1979, and August 31, 1979, she invested with it more than $165,000 of assets which belonged to her in a joint survivorship account in her name and that of her husband, John M. Witous. She further alleged that on October 5, 1979, she requested that appellant issue to her in her name only a check for $145,603.08 or reinvest that amount in her name only. However, she asserted, appellant had failed to comply with either of her requests. In count I Mrs. Witous sought compensatory damages for breach of contract, and in count II she sought compensatory and punitive damages for unlawful conversion. She attached a copy of an unsigned joint account agreement which by its terms would have authorized payment of the funds in the account to either owner without permission of the other. She also attached a letter dated October 4, 1979, from her attorney to appellant which returned appellant’s checks for $145,603.08, dated September 5 and 6, 1979, and made payable to both Mr. and Mrs. Witous and which demanded checks in the identical amount payable only to Mrs. Witous.

Appellant filed a counterclaim and third-party complaint against Mr. Witous in in-terpleader, alleging that on or about September 1, 1979, the marriage of Mr. and Mrs. Witous became irretrievably broken, that a divorce proceeding was pending between them, and that both parties were claiming a right to the funds and securities held in the joint account. Appellant disclaimed any interest in the account and offered to deliver the funds and securities to the court. It also prayed for a release from the peril of double liability and an award of reasonable attorney’s fees for bringing the suit.

Appellant next filed a motion for order of interpleader and other relief in which it requested authority to place the funds and securities into the registry of the court pending a resolution of conflicting claims and requested a determination of reasonable attorney’s fees. It also moved for summary judgment with respect to count II of Mrs. Witous’s complaint on the premise that a suit for conversion would not lie to enforce an obligation to pay money. Appellant later filed a supplementary motion for summary judgment, alleging that the marriage of Mr. and Mrs. Witous had now been dissolved and that the final judgment of dissolution directed Mr. Witous to execute such papers as were necessary to release to Mrs. Witous all his claims in the joint account. None of these motions were heard until the date of the trial on March 11,1980. At that time, the court granted appellant’s motion for summary judgment but only with respect to count II. Thereupon, Mrs. Witous took a voluntary dismissal without prejudice of count I. The court then denied appellant’s motion for order of interpleader and other relief.

Florida Rule of Civil Procedure 1.240 governs the scope of interpleader actions. It states:

Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claim of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another or that the plaintiff avers that he is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way of cross-claim or counterclaim. The provisions of this rule supplement and do not in any way limit the joinder of parties otherwise permitted.

A party who is entitled to sue in interpleader is ordinarily permitted to recover his reasonable attorney’s fees from the inter-pleaded fund. Miller v. Gulf Life Insurance Co., 148 Fla. 1, 3 So.2d 519 (1941); McKinnon v. Reliance Insurance Co., 113 Fla. 370, 151 So. 699 (1933). However, in Ellison v. Riddle, 166 So.2d 840, 841 (Fla. 2d DCA 1964), after referring to the rule of civil procedure on interpleader, this court said:

Even though an interpleader action may be maintained under this rule, it does not necessarily follow that in every such action the court must award costs and attorney’s fees to the interpleading plaintiff. In order to be entitled to such an award the plaintiff must prove his total disinterest in the stake he holds other than that of bringing it into court so that conflicting claims thereto can be judicially determined. The plaintiff must also show he did nothing to cause the conflicting claims or to give rise to the peril of double vexation. Paul v. Harold-Davis, Inc., 1945, 155 Fla. 538, 20 So.2d 795.

Accord, Wolf v. Horton, 322 So.2d 71 (Fla. 3d DCA 1975). Thus, there may be circumstances under which a party may properly sue in interpleader and yet be denied attorney’s fees if the need for interpleader was unnecessarily precipitated by his conduct.

It may be that the court here finally denied appellant’s motion for an order of interpleader because at that time the case was over and the issues were moot. Be that as it may, if appellant was entitled to sue for interpleader in the first place, it was also entitled to attorney’s fees unless it did something to expose itself to the double liability it ultimately sought to avoid.

Based upon the undisputed facts which can be gleaned from the pleadings before us, we believe that appellant fell within the provisions for interpleader. Both Mr. and Mrs. Witous were making conflicting claims to the account, and appellant was in the position of a stakeholder. The joint account agreement which would have permitted payment to Mrs. Witous upon her request was unsigned. What we cannot tell, because no testimony has been taken on the subject, is whether appellant did something to cause the conflicting claims or to give rise to the peril of double vexation. We, therefore, reverse the denial of appellant’s request for attorney’s fees and remand the case for an evidentiary hearing. If the court awards a fee and the proceeds of the joint account have already been distributed, the court will have to require the distributee to pay the fee.

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


author: WENTWORTH, Judge. WENTWORTH, Judge.

text:
    William C. BUCKHALTER, Appellant, v. UNIVERSITY OF FLORIDA and Division of Risk Management, Appellees.
    No. ZZ-418.
    District Court of Appeal of Florida, First District.
    Feb. 16, 1982.
    Rehearing Denied April 5, 1982.

      Thomas W. Davis, Barton, Cox & Davis, Gainesville, for appellant.
    Jack A. Langdon, Jones & Langdon, Gainesville, for appellees.
   WENTWORTH, Judge.

Buckhalter, the claimant in this workers’ compensation case, raises many issues on appeal, several of which deal with the alleged failure of the deputy commissioner to decide issues which were properly brought before him and ripe for adjudication.

The first question concerns the failure to find claimant’s average weekly wage when the amount was clearly in controversy. At the hearing, claimant asserted a minor discrepancy between his base average weekly wage of $145.36 and the $145.20 amount accepted by the employer/carrier. In addition, claimant asserted that he was entitled to have the value of retirement benefits paid by the employer included in his average weekly wage, as well as the value of uniforms and laundry service provided. While the employer/carrier concedes that $145.36 is the correct base amount, it contests the inclusion of the other benefits, arguing that the retirement contributions have no present day value and that no evidence was presented establishing the value of the uniform allowance.

We agree with the claimant that because his retirement benefits had vested he was entitled to have the value of those contributions considered in determining his average weekly wage. Reese v. Sewell Hardware Co., 407 So.2d 965, 6 F.L.W. 2557 (Fla. 1st DCA, Case No. AB-71, Dec. 9, 1981); Sunland v. Thomas, IRC Order 2-3917 (1979), cert. denied, 389 So.2d 1113 (Fla.1980). However, the employer/carrier correctly states that no evidence of the value of the uniform service was presented to the deputy commissioner other than claimant’s testimony that he was in fact provided a clean uniform every few days. The deputy commissioner should have determined the claimant’s average weekly wage, including a value for the retirement contributions, but the record does not compel an increase in the amount of average weekly wage based on uniforms provided, absent any indication of value.

Claimant also argues that the deputy commissioner failed to rule on his claim for temporary partial and/or temporary total disability benefits. Again, this claim was properly presented to the deputy commissioner, but according to the employer/carrier the order sufficiently disposes of the issue. The decretal portion of the order does not refer to the claim for temporary benefits, but simply states that the claim for additional benefits is denied. There was evidence presented in support of the contention that claimant was terminated from his employment because his injury made him unable to perform his duties. In addition, the record reflects a time lapse between the date of termination and the date that he reached maximum medical improvement. Because of the omission of any findings on the issue we are unable to determine whether the order rejects such evidence or whether the deputy overlooked an issue before him. Therefore, on remand the deputy commissioner should expressly dispose of the claim for temporary disability benefits.

Claimant’s third argument involving the alleged failure of the deputy commissioner to adjudicate an issue before him involves a claim for compensation for medical travel. The claimant did include medical travel in the claim, but we find no record evidence on the point. The order therefore correctly awards no relief on that aspect of the claim and is affirmed as a rejection of the claim.

Finally, we note that the deputy commissioner denied the claim for attorney’s fees even though he ordered the employer/carrier to reimburse claimant for a $20.00 hospital bill, the liability for which was clearly controverted. Although a rejection of attorney’s fees based on such a minimal amount might not be an abuse of discretion, the deputy commissioner may wish on remand to reconsider the claim in light of the directions in this opinion. The other points raised by appellant are without merit.

Accordingly, the order is affirmed in part and reversed in part and remanded for such further considerations and proceedings based upon the existing record as are consistent with this opinion.

MILLS and THOMPSON, JJ., concur.

ON MOTION FOR REHEARING OR CLARIFICATION

WENTWORTH, Judge.

Motion for rehearing is denied. The award of scheduled benefits is affirmed because the evidence permits a conclusion that only an arm impairment resulted from claimant’s shoulder injury. § 440.15(3), Florida Statutes.

MILLS and THOMPSON, JJ., concur.

      . The deputy commissioner has a duty to adjudicate issues which are properly presented and ripe for adjudication. Dunn Lumber & Supply Co. v. Roy, 382 So.2d 51 (Fla. 1st DCA 1980).

      . Vargas v. Americana of Bal Harbour, 345 So.2d 1052 (Fla.1977).

      . § 440.13, Florida Statutes.

      . See Green Thumb v. Britten, 393 So.2d 613 (Fla. 1st DCA 1981).


text:
    Thearthur LAW, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee. Anthony DAVIS, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    Nos. AG-229, AH-89.
    District Court of Appeal of Florida, First District.
    March 8, 1982.
    Rehearing Denied in AH-89 April 19, 1982.
    Rehearing Denied in AG-229 April 23, 1982.

      Thearthur Law, pro se.
    Anthony Davis, pro se.
    Malcolm S. Greenfield and Catherine L. Dickson, Tallahassee, for appellee.
   PER CURIAM.

Appellants claim to be seeking judicial review of declaratory statements made to them by the Florida Parole and Probation Commission (Commission), concerning the criteria used to establish their presumptive parole release dates (PPRD). However, appellants are in fact seeking judicial review of their PPRDs. The Objective Parole Guidelines Act, § 947.173(1), Fla.Stat. (1981), provides a procedure for Commission review of its action in setting a PPRD and this Court has declared its appellate jurisdiction to review the Commission’s final action of reviewing the PPRD once established, pursuant to § 120.68, Fla.Stat. (1981). See Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1st DCA, 1981). Appellants did not utilize the specific, statutorily created procedure for review, which requires that they appeal their PPRDs within 60 days of Commission action setting the date. Instead, subsequent to the setting of their' PPRDs, appellants sought declaratory statements from the Commission. They now ask this Court to review their PPRDs when they have not exhausted their administrative remedies.

We have held in other cases, that considerations of orderly administration of justice under the Florida Administrative Procedure Act preclude entertaining collateral attacks of nonfinal agency action when an alternative adequate remedy exists. See e.g., Key Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 400 So.2d 66 (Fla. 1st DCA 1981); Rice v. Department of Health and Rehabilitative Services, 386 So.2d 844 (Fla. 1st DCA 1980); State, Department of Health and Rehabilitative Services v. Barr, 359 So.2d 503 (Fla. 1st DCA 1978); and State, Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977). Under the particular facts of these cases, the petitions for declaratory statements constitute unnecessary collateral attacks on nonfinal agency orders when those orders were clearly reviewable according to the statutorily prescribed procedure, § 947.173(1), Fla.Stat. (1981). This Court could then have conducted a § 120.68 judicial review of the Commission’s final action in each of the appellants’ cases. See generally, Turner v. Wainwright, 379 So.2d 148 (Fla. 1st DCA 1980); Florida Institutional Legal Services, Inc. v. Florida Parole and Probation Commission, 391 So.2d 247 (Fla. 1st DCA 1980); and Daniels v. Florida Parole and Probation Commission, supra.

The Commission may, in its own discretion, answer prisoners’ requests for information, but such communications are not final agency action and this Court will not treat them as declaratory statements as described in § 120.565, Fla.Stat. (1981).

We find, under the circumstances of these cases, that we lack jurisdiction to review the Commission’s action here. Accordingly, the motions to dismiss are granted.

BOOTH, SHIVERS and JOANOS, JJ., concur.

      . Section 120.565, Fla.Stat. (1981), provides that each agency shall establish rules regulating the procedure for entertaining petitions for declaratory statements. Accordingly, the Florida Parole and Probation Commission has promulgated Fla.Admin.Code Rules 23-15.06-15.-09 to comply with the Florida Administrative Procedure Act. These rules must be read in conjunction with the limitations imposed upon their use by Fla.Admin.Code Rule 28-4.05, defining what constitutes a declaratory statement”.

      . Mr. Davis’ notice of appeal indicates he is appealing a Commission order establishing his PPRD. Mr. Law’s brief argues that the Commission erred in aggravating him for an act which he was not charged with committing. These are issues properly raised by § 947.-173(1) review of PPRDs.

      .Mr. Davis sought his declaratory statement one month after the Commission established his PPRD; he would have been able to have his PPRD reviewed by the Commission had he sought review via § 947.173(1). Mr. Law sought his declaratory statement almost five months after the establishment of his PPRD. This exceeds the 60-day time limit provided in § 947.173(1).

      . Review of declaratory statements cannot give the relief appellants seek, to-wit, change of their PPRDs. See Florida Rock and Tank Lines, Inc. v. Hawkins, 372 So.2d 447, 448 (Fla.1979) (Chief Justice England dissenting).

      . See Couch v. State, 377 So.2d 32 (Fla. 1st DCA 1979) (holding that the same doctrines as are relied upon for determining whether issuing a declaratory judgment is proper are relied upon for issuance of declaratory statements by agencies). In the area of declaratory judgments and declaratory statements, two applicable principals must be considered: judicial restraint and a showing of “actual, present and practical need for a declaratory judgment. .. . ” Couch, supra, at 33.


author: HERSEY, Judge.

text:
    Rosemary OVERBY, etc., Appellant, v. Richard P. WILLE, etc., et al., Appellees.
    No. 81-177.
    District Court of Appeal of Florida, Fourth District.
    March 10, 1982.
    Rehearings Denied April 20, 1982.
    Edna L. Caruso and Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellant.
    J. Burke Culler, Jr., of Adams, Coogler, Watson & Smith, P. A., West Palm Beach, for appellee Richard P. Wille.

      John P. Wiederhold of Pomeroy, Betts, Wiederhold & Moses, West Palm Beach, for appellees City of Boynton Beach and Northeastern Fire Ins. Co. of Pennsylvania.
   HERSEY, Judge.

At 5:20 a. m. on the morning of March 19, 1979, Charles Overby was found hanged by his belt in his cell at the Palm Beach County Jail. His widow, Rosemary Overby, in her capacity as personal representative of his estate, filed a wrongful death action against the City of Boynton Beach (and its insurer) and the Sheriff of Palm Beach County. Summary final judgments were eventually entered in favor of the defendants from which this appeal is taken.

The events leading up to this tragedy began on the afternoon of March 18th, the day before the suicide. Charles Overby had a history of mental disorder although that history was not known to the defendants. On the afternoon in question he flagged down a Boynton Beach policeman, Officer Chris Lee Bray, and explained to him that he thought he might have hurt someone, and therefore requested to be taken to the Mental Health Center. Upon arrival at the police station Overby became violent and struck Officer Bray. The officer then contacted the South County Mental Health Center and was advised (as it later turned out incorrectly) that the Center had no record of Overby. Officer Bray thereupon prepared an arrest form and affidavit of probable cause based upon a charge of assaulting a police officer and had Overby transported to the county jail. Both forms recited that Overby had initially requested that he be taken to the Mental Health Center.

The testimony indicates that the booking agent at the county jail did not read the affidavit but merely checked to see the substance of the criminal charges and to see if the affidavit was signed by the arresting officer. During the booking process Overby became involved in an altercation with another inmate, resulting in lacerations on his head requiring treatment at Good Samaritan Hospital.

After Overby was transferred back to jail, he was placed in an isolated detention cell for his own safety because of his belligerency and outward aggression. The desk sergeant wrote on the shift leader’s turnover sheet and conveyed to the custodial officers the information that Overby was a probable Signal 20, which was apparently, although the testimony is somewhat confused on this point, a police code indicating that an individual is mentally incompetent. Overby was thereafter placed in the isolated cell wearing his street clothes. Although recorded and non-recorded cell clock checks were made of the detention area by various personnel Overby was found dead at 5:20 a. m., hanging from his cell door by his own belt.

On these facts the summary final judgments were entered.

The issue with which we are thus presented is whether the decedent’s act of self-destruction was an independent intervening cause which was not reasonably foreseeable. The trial court found as a matter of law that this question should be answered in the affirmative. We disagree and reverse.

It is conceded that where injury results from an active and efficient cause which intervenes between the negligent act of the tortfeasor and the injury, liability may well be a legal issue for determination by the court. Kwoka v. Campbell, 296 So.2d 629 (Fla. 3d DCA 1974). Appellees expect too much of that principle here, however, in as much as the question of whether the intervening cause was foreseeable is ordinarily one for the trier of fact. Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520 (Fla.1980). Only a total absence of evidence to support an inference that the intervening cause was foreseeable justifies the court in removing the question from the trier of fact. See Guice v. Enfinger, 389 So.2d 270 (Fla. 1st DCA 1980). The Guice case also arose out of a jail suicide but in that case there was no evidence of mental or emotional aberration. The Guice court laid down yet another principle which has application here. The court stated that as to a loss or injury which is not a direct result of the negligent act, recovery will not be allowed if the injury was only “possible” as opposed to “probable.” The opinion continues by defining the former term as: “those which happen so infrequently from the commission of a particular act, that in the field of human experience they are not expected as likely to happen again from the commission of the same act.” 389 So.2d at 272, quoting from Cone v. Inter-County Telephone & Telegraph Co., 40 So.2d 148, 149 (Fla.1949).

In Crislip v. Holland, 401 So.2d 1115, 1117 (Fla. 4th DCA 1981), the concept of foreseeability and its relationship to liability is further analyzed. There we said:

In order for injuries to be a foreseeable consequence of a negligent act, it is not necessary that the initial tortfeasor be able to foresee the exact nature and extent of the injuries or the precise manner in which the injuries occur. Rather, all that is necessary in order for liability to arise is that the tortfeasor be able to foresee that some injury will likely result in some manner as a consequence of his negligent acts, (citations omitted).
We stated further that:

If the harm that occurs is within the scope of danger created by the defendant’s negligent conduct, then such harm is a reasonably foreseeable consequence of the negligence. The question of foreseeability and whether an intervening cause is foreseeable is for the trier of fact. Gibson v. Avis Rent-A-Car System, 386 So.2d 520 (Fla.1980).

The question in the present case is whether the trier of fact could find, on the evidence and the permissible inferences to be drawn from that evidence, that it was reasonably foreseeable that harm would befall Overby either directly or indirectly as a result of the actions and omissions of the respective defendants.

The Boynton Beach Police Department heard from Overby’s own lips that he had emotional problems requiring that he be immediately transported to the Mental Health Center or a similar facility. Subsequently they were confronted with totally irrational behavior in Overby’s sudden and unprovoked attack upon Officer Bray. Notwithstanding, they caused his arrest and subsequent transfer to and detention in the county jail as a common criminal. Such questions as whether there was a duty to obtain mental health care for Overby or at the very least to ensure that the sheriff’s department was fully apprised of these background facts remain to be answered. Whether they will require an answer in this case depends upon the threshold question of whether it was reasonably foreseeable that such an individual (one with obvious and expressed emotional problems) would probably come to harm if treated as a common criminal. The trier of fact should have an opportunity to resolve this issue.

The sheriff’s department for whatever reason labelled Overby a “probable Signal 20.” The evidence is unclear as to the precise meaning of the designation “probable Signal 20.” Nonetheless, it is conceded that the term refers to mental and emotional instability of some type. Again there was an outburst of antisocial behavior resulting in actual injury to the individual. Further, the department was in possession of all of the information known to the Boynton Beach Police Department, whether or not that information was studied and understood. These facts and inferences are sufficient to raise the issue of foreseeability and to preclude summary disposition.

We recognize that law enforcement personnel are not to be held to the same standards as trained mental health specialists. We do not intend to imply here that they should be. If Overby reacted antisocially toward others by doing them violence then prudence may well dictate that he should have been placed in isolation, as indeed he was. In such case the question remains, how closely must he be watched. If, on the other hand, his conduct indicated a tendency toward self-destruction then different treatment is indicated.

In any event, the evidence shows that the sheriffs department has personnel trained in recognizing the symptoms of mental illness. No such individual was consulted in regard to Overby’s condition.

Finally, the record discloses that an expert, Dr. William Bopp, a criminologist specializing in police administration testified that the procedures of the jail fell considerably below the reasonable standard of care.

Under these circumstances it was error to find that, as a matter of law, injury to Overby was not reasonably foreseeable. That question is for the trier of fact. We, therefore, reverse and remand so that it may be appropriately considered.

REVERSED AND REMANDED.

ANSTEAD and HURLEY, JJ., concur.