author: PER CURIAM.

text:
    TALLAHASSEE MEMORIAL REGIONAL MEDICAL CENTER and Florida Patients’ Compensation Fund, Appellants, v. Connie J. MITCHELL, Appellee.
    Nos. ZZ-304, ZZ-321.
    District Court of Appeal of Florida, First District.
    Sept. 24, 1981.
    Rehearing Denied Jan. 18, 1982.
    John D. Buchanan, Jr. of Hendry, Buchanan, Mick & English, David A. Barrett of Barrett, Bajoczky & Barrett, and Professor Charles W. Ehrhardt, Tallahassee, for appellants.
    Harry Lewis Michaels and R. Lee Do-rough, Tallahassee, for appellee.
   PER CURIAM.

This is an appeal from an order of the trial court granting plaintiff’s motion for a new trial. We affirm.

In November 1978, Connie Mitchell underwent a sterilization operation at Tallahassee Memorial Regional Medical Center (the Hospital). Just prior to the operation she was administered a general anesthesia by a Certified Registered Nurse Anesthetist. When the CRNA attempted to place the breathing tube into appellant’s trachea, he had difficulty finding the anatomical structures which guide him in placing the tube properly. After three tries, he called another CRNA who placed the tube after two unsuccessful attempts. The second CRNA checked the appellee’s breathing then left the room. Shortly thereafter the original CRNA noticed appellee turning blue. Within minutes an anesthesiologist arrived and appellee was stabilized. However, she sustained some brain damage as a result of the incident.

Appellee sued the hospital, and the presiding doctor. By stipulation and pursuant to § 768.54(3)(e), Fla.Stat. (1979), the Florida Patients’ Compensation Fund (the Fund) was also named a defendant in the suit.

In the opinion of two expert witnesses who testified on behalf of the plaintiff, the cause of Ms. Mitchell’s injury was an improper placement of the tube. According to those experts the tube had been placed in the esophagus instead of the trachea. After the plaintiff’s case in chief, the Hospital called Dr. Robert Kirby as an expert witness. Dr. Kirby testified that in his opinion the injury was caused by the appellee regurgitating gastric stomach juices into the properly placed tube. According to Dr. Kirby, the injury was in no way the result of fault, or negligence, on the part of the hospital staff. Thus the issue of liability revolved around which expert witness the jury chose to believe.

After counsel for the Hospital examined Dr. Kirby, counsel for the Fund conducted its own examination. Plaintiff’s counsel apparently believed the questioning by the Fund was a continuation of direct examination. On being informed by the trial judge that the Fund was cross-examining the witness, the plaintiff did not object. However, when the Fund attempted to use a medical treatise to bolster Dr. Kirby’s opinion the plaintiff’s counsel objected that that use was improper cross-examination.

The jury returned a verdict in favor of the defendants, and the plaintiff moved for a new trial. The motion was granted because the trial judge found that his decision to allow the Fund to cross-examine the Hospital’s witness and use the medical treatise had been error. The Hospital and Fund appeal alleging that the decision of the trial judge to permit the cross-examination was discretionary in nature, that therefore there was no error during the trial, and no grounds existed for granting a new trial.

While the decision to allow the Fund to cross-examine the Hospital’s witness may have been discretionary, the judge is not precluded from finding, after hearing the testimony that is elicited on the so-called “cross-examination”, that evidence was improperly presented to the jury.

Furthermore, we agree with the trial judge that the use of the medical treatise was improper in this case. There was no adversity between the Hospital and the Fund. The medical book could not have been used in direct examination in the manner that it was used on the so-called cross-examination. The new evidence code allows an expert to rely on facts or data which are inadmissible in evidence as the basis of an opinion, if the facts or data are of a type reasonably relied on by experts in the subject to form the opinion. This section does not permit the expert to bolster his opinion by showing a medical book to the jury for the purpose of comparing photographs of x-rays in the book to photographs of the plaintiff’s x-rays, as was done in this case.

The evidence code permits the use of medical books on cross-examination provided certain conditions are met. However, we are of the opinion that by calling the interrogation by the Fund a cross-examination in this case, the two defendants together managed to introduce evidence which one alone could not have. The sole purpose of the medical book was to supplement the opinion of the doctor which had already been formed and testified to. Therefore, the book was not used for the purposes of “cross-examination” as that term is used in § 90.706. Stated another way, the use of the book was an improper method of cross-examination in this case.

Because improper evidence was admitted on the crucial issue of liability, it is apparent that the jury was deceived as to the force and credibility of the evidence. Therefore, there was no error in granting the new trial. Wackenhut Corporation v. Canty, 359 So.2d 430 (Fla.1978).

AFFIRMED.

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

      .The Fund had cross-examined some of plaintiffs witnesses, had conducted separate voir dire examination during jury selection, and generally participated separately in the trial. Appellee has not contested the Fund’s right to actively participate in the trial.

      . § 90.704, Fla.Stat. (1979).

      . § 90.706, Fla.Stat. (1979).


source: Caselaw Access Project

author: PER CURIAM. ORFINGER, Judge.

license: Public Domain

text:
    WINDHOVER ASSOCIATION, INC., a Florida Corporation, Petitioner, v. GULF OIL REALTY COMPANY, a Delaware Corporation, and Robert T. Craig, Respondents.
    No. 81-741.
    District Court of Appeal of Florida, Fifth District.
    Sept. 30, 1981.
    Rehearing Denied Dec. 23, 1981.
    Kenneth M. Clayton of Clayton & Landis, Orlando, for petitioner.
    David U. Strawn of Akerman, Senterfitt & Eidson, Orlando, for respondents.
   PER CURIAM.

The petition for writ of certiorari, seeking review of a non-final order dismissing one count of a multi-count complaint, with leave to amend, is denied. Petitioner fails to show that material injury will result from the order and that the remedy by appeal will be inadequate. Hawaiian Inn of Daytona Beach, Inc. v. Snead Const. Corp., 393 So.2d 1201 (Fla. 5th DCA 1981).

ORFINGER, COBB and COWART, JJ., concur.

ON MOTION FOR REHEARING

ORFINGER, Judge.

Petitioner requests in its motion for rehearing that we reconsider the denial of the petition for writ of certiorari on the ground that the dismissal of Count III of the complaint would be final as to defendant Robert T. Craig, since he is joined as a defendant only in that count. The order dismissed Count III with leave to amend. As such, it is a non-appealable non-final order. Petnuch v. Smith, 395 So.2d 294 (Fla. 5th DCA 1981).

A non-final order not susceptible to appeal may be reviewed by common law cer-tiorari if the proper criteria are met. Finney v. Wonder Development Corp., 392 So.2d 583 (Fla. 5th DCA 1980). Among those criteria is the necessity of showing that a remedy by appeal is inadequate. When a final judgment of dismissal is entered as to defendant Craig, if it does finally dismiss him from the case that order will be appealable. See Kingsland v. National Advertising Co., 384 So.2d 701 (Fla. 5th DCA 1980); Atlantic National Bank of Jacksonville v. Modular Age, Inc., 363 So.2d 1152 (Fla. 1st DCA 1978). Thus petitioner has not met the burden of showing the non-availability of a remedy by appeal.

The motion for rehearing is DENIED.

COBB and COWART, JJ., concur.


author: JOANOS, Judge. JOANOS, Judge.

text:
    Juan CARBALLO, Appellant, v. WARREN MANUFACTURING CO. and Cosmopolitan Mutual Insurance Co., Appellees.
    No. VV-470.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1981.
    Rehearing Denied Jan. 6, 1982.

      David H. Levine, Miami, for appellant.
    Steven P. Kronenberg, Miami, for appel-lees.
   JOANOS, Judge.

In this workers’ compensation appeal, the claimant challenges the deputy’s order in numerous respects. We have determined that three of the seven points raised on appeal are worthy of discussion. As to the deputy’s finding on permanent partial disability, we reverse and remand for clarification. In addition, we vacate the offset of social security benefits and remand the order for an award of interest. We find no error in the deputy’s order regarding the remaining points raised by claimant.

A victim of polio at an early age, claimant was paralyzed from the waist down but able to walk with the aid of crutches. While working for Warren Manufacturing Company as an assembler, on February 28, 1979, claimant fell and injured his right knee and lower back. The medical evidence concerning these injuries consisted of the medical reports of two physicians who saw no objective evidence of injury to either the knee or back and the live testimony of another physician, Dr. Turke. Dr. Turke treated claimant from April 2, 1979 to February 29, 1980; during this period of time, Dr. Turke was of the opinion that claimant was unable to work. Dr. Turke felt that claimant’s back injury resulted in a 10%-15% permanent partial disability (“PPD”) of the body as a whole. Of this 10%-15% rating, the doctor stated that 5%-10% was due to the aggravation of a pre-ex-isting scoliosis condition. Dr. Turke also testified that the knee injury resulted in an additional 20-25% PPD of the leg, or 10% PPD of the body as a whole. Thus, the doctor concluded that claimant was 20%-25% PPD of the body as a whole due to injuries suffered as a result of his fall.

In his order, the deputy commissioner relied on Dr. Turke’s testimony in finding the MMI date to be February 29, 1980. The deputy recited Dr. Turke’s testimony as follows:

Dr. Turke felt the claimant would sustain a 60-65% permanent partial disability of the body, with 40% of that rating attributable to the claimant’s pre-existing polio condition, and 20% due to the claimant’s compensable accident. Dr. Turke also stated that 5% of the anatomic rating would be attributable to the claimant’s preexisting spondylolysis condition. Thus, Dr. Turke felt that the compensa-ble accident caused only a 5-10% permanent partial disability of the body.

The deputy then concluded that claimant’s accident resulted in a 10% PPD of the body as a whole.

Recognizing the deputy’s discretion in interpreting medical evidence, we are nevertheless concerned that the deputy has relied upon a misinterpretation of Dr. Turke’s testimony in reaching his decision.

It is true that Dr. Turke attributed 20% PPD to the accident, as is stated in the order. The order also states, however, that Dr. Turke felt that the accident caused only a 5-10% PPD because 5% PPD was due to a pre-existing back condition. This last statement obviously conflicts with the first. In fact, the doctor’s testimony was very clear; the accident caused 20%-25% PPD — 10% due to the knee injury, 5%-10% due to an aggravation of a pre-existing back condition, and 10%-15% due to a low back sprain. The order’s failure to classify the doctor’s rating given for scoliosis as an aggravation of that condition as well as the failure to mention the doctor’s rating of the knee injury makes us uncertain as to the basis for the deputy’s determination on PPD. If the deputy found Dr. Turke to be a credible witness and intended to rely wholly on his findings, then injustice would result if the order was based upon a misunderstanding of those findings. Since it is not clear to us that the misinterpretation did not play some part in the ultimate outcome, we remand this issue for reconsideration.

At the hearing on the claim, the employer sought an offset of social security benefits as provided by § 440.15(10), Florida Statutes (1979). That section specifically provides for an offset of social security benefits received under 42 U.S.C. §§ 402 and 423, but does not provide for an offset of supplemental income received under 42 U.S.C. § 1381, et seq. (supplemental security income for persons who are over 65, blind or disabled). The record does not clearly indicate which type of benefits claimant received. There is evidence, however, that claimant began receiving benefits within four or five months of his accident, which would be inconsistent with the disability provisions of 42 U.S.C. § 423(c)(2). (Section 402, which deals with old age benefits, does not apply in this case.)

The employer, not the claimant, has the responsibility of informing itself of the social security payments received by the claimant, State of Florida, Department of Transportation v. Lindsey, 383 So.2d 956 (Fla. 1st DCA 1980), so it logically follows that the employer has the burden of proving that it is entitled to an offset. In this case, the employer did not offer any evidence that the benefits received by the claimant were of 'a type provided for in § 440.15(10). Since there is some indication that payments were made under 42 U.S.C. § 1381, no offset should be allowed.

Finally, the claimant argued without rebuttal by the employer that the deputy erred by not awarding interest. We agree. Section 440.20(9) requires an award of 12% interest on all past-due payments of compensation. When the permanent partial disability award is reconsidered on remand, the deputy should also award interest on the ultimate compensation benefits ordered.

The order is reversed and remanded for reconsideration of permanent partial disability benefits and for an award of interest. The portion of the order allowing an offset of social security benefits is vacated. The order is affirmed as to all other points raised by claimant.

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

ON PETITION FOR REHEARING AND CLARIFICATION

JOANOS, Judge.

Both parties have requested that we clarify several portions of our original order, including the scope of the remand for rede-termination of permanent partial disability. We grant clarification only to the extent set forth in this opinion. In all other respects, the motions of the parties for rehearing or clarification are denied.

Claimant is uncertain whether or not a remand would allow the deputy to reconsider wage earning capacity loss as well as the permanent physical impairment rating. As the E/C points out, however, the deputy’s denial of any wage earning capacity loss was affirmed in our order; therefore, the remand is limited to a rede-termination of claimant’s anatomical disability rating.

The E/C has also requested clarification as to whether our denial of an offset for Social Security benefits under § 440.15(10) precludes the E/C from introducing evidence to show the type of benefits claimant is receiving. Our opinion does not prevent the E/C from making such a showing; we merely stated that the E/C had not proven its entitlement to an offset as of the hearing date. We note, however, that the E/C cannot receive reimbursement for past payments of Social Security benefits because of its failure to inform itself whether or not those benefits were capable of being offset under § 440.15(10)(a).

Under § 440.15(10)(c), the employee is required to authorize the Social Security Administration to release disability information to the division, the employer, or the carrier upon demand. In this case, there was no indication that a demand was ever made for the employee to produce the information and the employer failed to introduce any evidence which would show that it was entitled to the offset. As stated in Department of Transportation v. Lindsey, 383 So.2d 956 (Fla. 1st DCA 1980) (cited in our opinion), it is the employer’s or carrier’s responsibility to inform itself of Social Security payments and, consistent with other sections of the Worker’s Compensation Act, § 440.15(10) requires the employer to take the initiative in determining compensation benefits properly payable. We agree with the analysis in Lindsey:

We see no reason to depart from this statutory model in this case of employer neglect of its own interests, and we conclude that a judge of industrial claims should not undertake, by an order acting as a money judgment against the claimant, or as a lien on a fund in his hands, or as a set-off against other compensation benefits past due the claimant, or as a reduction of contemporary and future compensation benefits, to recoup for the employer and carrier compensation payments which might and should have been reduced in the past but were not.

See also Florida Power & Light Co. v. Adkins, 377 So.2d 57 (Fla. 1st DCA 1979).

With regard to our finding that interest should have been awarded, the E/C has informed this Court that the carrier at risk, Cosmopolitan Mutual Insurance Company, has gone into liquidation and its successor, Florida Insurance Guaranty Association [“FIGA”], cannot be held liable for either penalties or interest. § 631.57(l)(b), Florida Statutes (1979). Although FIGA may not be held responsible for interest on compensation benefits payable prior to the entry of final judgment, FIGA must still pay lawful interest on amounts not paid after final judgment was entered. Florida Insurance Guaranty Association v. Gustinger, 390 So.2d 420 (Fla. 3d DCA 1980). For any interest which FIGA is not required to pay, the employer must bear the responsibility. See § 440.20(7), Florida Statutes (1978), which states that interest may be assessed against either the employer or carrier.

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


author: UPCHURCH, JOHN J., Associate Judge.

text:
    NEW RIVER YACHTING CENTER, INC. and Certain Underwriters at Lloyds of London, Appellants, v. Ronald Dario BACCHIOCCHI a/k/a B. A. Dario, Individually and d/b/a Dario Farms, Providence Washington Insurance Company, Aetna Casualty and Surety Company, American Employers Insurance Company, Fireman’s Fund Insurance Company, Maurice M. McCrater and Jeannette McCrater, his wife, Appellees.
    No. 80-337.
    District Court of Appeal of Florida, Fourth District.
    Oct. 14, 1981.
    Rehearing Denied Jan. 21, 1982.

      Edward M. Waller, Jr., and Dewey R. Villareal, Jr., of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, and E. Bruce Johnson of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellants.
    Gerald L. Bedford of McCormick, Bed-ford & Backmeyer, Miami, for appellee-Bac-chiocchi.
    Claudia B. Greenberg of Marlow, Shofi, Ortmayer, Smith, Connell & Valarius, Miami, for appellee-Providenee Washington Ins. Co.
    Richard A. Sherman and Dennis O’Hara of Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara, and Marilyn P. Liroff of Weaver & Weaver, P.A., Fort Lauderdale, for appellee-Aetna Casualty and Surety Co.
    T. Cowart and James E. Tribble of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellee-American Employers Ins. Co.
    Gerald E. Rosser of Corlett, Merritt, Killi-an & Sikes, P.A., Miami, for appellee-Fire-man’s Fund Ins. Co.
   UPCHURCH, JOHN J., Associate Judge.

Two issues are presented on appeal. The first concerns the trial court’s denial of appellants’ motion for leave to amend their cross-claim against the corporate appellees some seven months after having been granted twenty days within which to do so. The second concerns the denial of leave to amend the cross-claim against appellee Bac-chiocchi in light of an earlier final summary judgment on the cross-claim which was unsuccessfully appealed.

Having found no abuse of discretion in the first instance, and no error in the second, we affirm.

Appellants and appellees were parties defendant in a personal injury action filed by Maurice M. and Jeannette McCrater. Appellants settled with the McCraters and filed cross-claims against appellees seeking contribution and indemnity. The cross-claim against the corporate appellees was dismissed with prejudice on September 28, 1978. However, despite the dismissal “with prejudice”, the trial court granted appellants twenty days within which to file an amended cross-claim. Appellants did not amend, but instead chose to treat the dismissal as final and appealed the decision to this Court. The appeal was dismissed April 10, 1979 on motion of appellants. Thereafter, on May 10, 1979, appellants changed direction and moved for leave to amend their cross-claims against the corporate cross-defendants. The motion was denied and the ease dismissed, the court holding that appellants had failed to demonstrate any justiciable grounds or excuse which would serve as a basis for permitting amendment of the cross-claims some seven months after the order allowing twenty days to amend. Appellants claim the proper test is not whether there was an excuse for delay, but whether the late amendment would prejudice the opposing party.

We find that the trial court had jurisdiction to entertain the motion to amend as the dismissal “with prejudice” granted leave to amend. The court thus retained control of the litigation and the subject order was nonfinal. Hancock v. Piper, 186 So.2d 489 (Fla.1966).

Resolution of this issue requires an analysis of Fla.R.Civ.P. 1.190 dealing with amendments of pleadings, and Fla.R.Civ.P. 1.420 dealing with dismissal for violation of a court order.

Fla.R.Civ.P. 1.190 provides that leave to amend shall be freely given when justice so requires. Under the rule, a test of prejudice is the primary consideration in determining whether a motion for leave to amend should be granted. Wackenhut Protective Systems v. Key Biscayne, 350 So.2d 1150 (Fla. 3rd D.C.A. 1977). Leave to amend should not be denied unless the privilege has been abused or the complaint is clearly not amendable. Osborne v. Delta Maintenance and Welding, 365 So.2d 425 (Fla. 2nd D.C.A. 1978). This determination should be governed by a policy favoring resolution of cases on their merits, unless the privilege be abused. Enstrom v. Dixon, 354 So.2d 1251 (Fla. 4th D.C.A. 1978).

On the other hand, none of these cases involve violation of a court order setting a time limit for amendment. Fla.R.Civ.P. 1.420(b) provides for involuntary dismissal for failure to comply with any order of the court. This rule has been applied to uphold the trial court’s discretion in dismissing for failure to amend a pleading within the time limit set by the court. Lasley v. Cushing, 244 So.2d 770 (Fla. 1st D.C.A. 1971), E & E Electric Contractors, Inc. v. Singer, 236 So.2d 195 (Fla. 3rd D.C.A. 1970), Miami Auto Auction Inc. v. Friendly Enterprises, Inc., 251 So.2d 69 (Fla. 3rd D.C.A. 1972), National Shawmut Bank of Boston v. Woodard, 220 So.2d 636 (Fla. 3rd D.C.A. 1969).

We find that the application of Fla. R.Civ.P. 1.420(b) in this case was solely within the sound discretion of the trial court and nothing appears from the record to suggest that there was an abuse of that discretion.

Appellants also challenge the granting of appellee Bacchiocchi’s motion to strike their motion for leave to amend their cross-claim against him, and the consequent final dismissal of that claim with prejudice.

The trial court granted Bacchiocchi’s motion for final summary judgment on December 15, 1978. The final summary judgment contained no words of limitation; it was apparently dispositive of all issues between the parties. Appellants treated it as such, appealed the judgment, and that appeal was subsequently dismissed. The trial court refused to entertain appellants’ later motion for leave to amend, holding that the earlier summary judgment effectively closed the door to relitigation of the same cause of action.

We find the summary final judgment is res judicata and serves as a bar to further litigation of the same claim. Once a party has had an opportunity to litigate a matter in an action in a court of competent jurisdiction, he should not be permitted to litigate it again to the harassment and vexation of his opponent. 19 Fla.Jur., Judgment and Decrees, Section 104; Gray v. Gray, 91 Fla. 103, 107 So. 261 (1926); Coral Realty Co. v. Peacock Holding Co., 103 Fla. 916, 138 So. 622 (1931); Caldwell v. Mass Bonding and Ins. Co., 158 Fla. 677, 29 So.2d 694 (1947); U. S. Gypsum Co. v. Columbia Casualty Co., 124 Fla. 633, 169 So. 532 (1936).

Appellants have failed to demonstrate error, and accordingly, the judgment is AFFIRMED.

DOWNEY and HURLEY, JJ., concur.


text:
    David BERENSON, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. AB-24.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1981.
    David M. Berenson, pro se, for appellant.
    James R. Parks, Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED.

ERVIN, WENTWORTH and JOANOS, JJ., concur.


author: McCORD, Judge. McCORD, Judge.

text:
    Paul JACOBSON, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. XX-242.
    District Court of Appeal of Florida, First District.
    Oct. 28, 1981.
    On Rehearing Dec. 11, 1981.
    Rehearing Denied Jan. 12, 1982.

      Paul Jacobson, in pro. per., for appellant.
    Malcolm S. Greenfield, Gen. Counsel, Florida Parole and Probation Commission, Tallahassee, for appellee.
   McCORD, Judge.

Appellant appeals the trial court’s dismissal of his “Complaint for Declaratory Judgment and Injunction” which challenged the Florida Parole and Probation Commission’s [Commission] recommendation of a presumptive parole release date for appellant. The Commission’s discretionary action in establishing appellant’s presumptive parole release date is subject to this Court’s review by administrative appeal. See Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981). Since the appellant, an indigent representing himself, sought relief in the trial court and lodged his appeal here prior to our ruling in Daniels, we have considered the action taken by the Commission and, finding error, we reverse with directions to the trial court to implement our ruling which we now make.

Appellant is serving time in prison for “throwing, placing and detonating an explosive device” which resulted in bodily injury to the victim. On November 21, 1979, appellant received a parole hearing interview after which the parole examiners recommended a presumptive parole release date of April 28, 1992, which consisted of a 156-month matrix time range with a 24-month aggravation. The Commission approved that presumptive parole release date. It arrived at the 156-month matrix time frame by choosing Matrix Range VIII which lists: “Aggravated felony (serious injury).” The Commission then erroneously adopted the 24-month aggravation on the ground that the offense resulted in great bodily harm to the victim. At that time, appellant took his action to the trial court. After appellant had appealed the trial court’s ruling to this Court, the Commission changed the wording of the 24-month aggravation to: “five year federal sentence consecutive to Florida sentence.”

The Commission erred in aggravating appellant’s 156-month matrix time frame with the 24-month aggravation because neither of the reasons given are valid aggravations. As to the first reason, § 947.165(1), Florida Statutes (1979), and Florida Administrative Code Rule 19.03 provide that the Commission shall not aggravate for a factor already considered in choosing the matrix time range. The federal sentence is an improper factor to consider for aggravation. It is not listed as an example of factors of aggravation pursuant to Florida Administrative Code Rule 23-19.03, and it is not similar in character to those factors listed as objective criteria for parole determination. Compare Baker v. Fla. Parole & Probation Commis sion, 384 So.2d 746 (Fla. 1st DCA 1980), in which the court stated:

... if the offense is not specifically listed in the Guidelines, it too must be explained by the Commission sufficiently to indicate the basis of comparison with an offense listed, Rule 23-19.05; .. .

We reverse and direct that the Commission strike the 24-month aggravation and establish a presumptive parole release date without including the aggravation time assigned.

REVERSED AND REMANDED.

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

ON MOTION FOR REHEARING

McCORD, Judge.

We have been asked to reconsider our ruling that the federal sentence was an improper factor to consider for aggravation because a sufficient explanation was not given by the Commission, as required by Baker v. Florida Parole and Probation Commission, 384 So.2d 746 (Fla.1st DCA 1980), for aggravating on that basis. Upon further reflection and re-examination of the Commission’s action, we place greater emphasis on the fact that the Commission’s statement of aggravation does relate that the federal sentence is consecutive to the Florida sentence, thereby indicating that it was imposed later in time than the Florida sentence and, therefore, was not considered in determining the salient factor score. It appears, therefore, from the record that, although the Commission’s statement of aggravation could have been more informative, it does state with sufficient particularity a proper factor to consider for aggravation. We, therefore, recede from our previous ruling to the contrary and affirm the Commission’s action.

AFFIRMED.

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


author: MILLS, Judge. MILLS, Judge.

text:
    Sam J. LOLLIE, as Administrator of the Estate of Richard Lee Lollie, deceased; Peggy Lollie, an individual; and Gerald Wayne Tatsch, individually and as Administrator of the Estates of Elizabeth Ann Tatsch, Michael Wayne Tatsch and Susan Elaine Tatsch, deceased, Appellants, v. GENERAL MOTORS CORPORATION, a foreign corporation, Appellee.
    No. JJ-93.
    District Court of Appeal of Florida, First District.
    Oct. 29, 1981.
    Rehearing Denied Jan. 6, 1982.

      Stanley Bruce Powell of Powell, Powell & Powell, Crestview, Ken Davis of Davis & Judkins, Tallahassee, Johnson & Christopher, San Antonio, Tex., for appellants.
    Spector & Tunnicliff, Tallahassee, Vassar B. Carlton, and E. Thom Rumberger and J. Richard Caldwell, Jr. of Rumberger, Kirk & Caldwell, Orlando, for appellee.
   MILLS, Judge.

This is an appeal from a judgment based on a jury verdict in an automobile accident case finding no liability on the part of ap-pellee (General Motors) to appellants (plaintiffs). We affirm.

On 11 November 1973, an accident involving three vehicles occurred in Wakulla County at the intersection of U.S. 319 and State Road 267. Elizabeth Tatsch and her two children, Susan and Michael, were killed in the collision and ensuing fuel-fed fire. Richard Lollie died thirteen days later. Gerald Tatsch and Peggie Lollie were severely burned.

The accident occurred when Bennette, traveling on S.R. 267, ran the stop sign at U.S. 319 and hit the right rear of the Tatsch’s 1972 Chevrolet Kingswood Estate Station Wagon, spinning it into the path of the Lollie vehicle. The Lollie vehicle struck the rear of the Tatsch’s station wagon, and the station wagon’s gas tank ruptured. The Tatsch and Lollie vehicles were engulfed in the ensuing fire. The Bennette Car was not involved in the second collision.

Plaintiffs brought suit against Seabron Bennette, owner of the Bennette vehicle; Felton Bennette, driver of the Bennette vehicle; the Bennette’s insurer; and General Motors Corporation, manufacturer of the automobile driven by Tatsch. During the 22-day trial, numerous witnesses testified as to the design and placement of the station wagon’s gas tank and its ability or lack thereof to retain gasoline upon impact.

The jury rendered a verdict in favor of the plaintiffs as to defendants Bennette and in favor of defendant General Motors as to the plaintiffs. In this appeal from the final judgment rendered in accordance with the verdict, plaintiffs allege no error as to the determination of the Bennettes’ liability but challenge only aspects of the proceedings relating to defendant General Motors.

I

Plaintiffs contend the trial court erred in refusing to give two requested jury instructions concerning negligent failure to warn, one of plaintiffs’ theories of recovery. The requested instructions were as follows:

The measure of duty of the distributor of an inherently dangerous product is well established to be the reasonable foreseeability of injury that might result from the use of the product. The care required to be exercised in fulfilling this duty to warn is measured by the dangerous potentiality of the product as well as the foreseeable uses to which it might be put. When a distributor of an inherently dangerous product places it in the channels of trade and by the very nature of his business, it assumes the duty of conveying to those who might use the product the fair and adequate warning of its dangerous potentialities to the end that the user, by the exercise of reasonable care on his own part, shall have a fair and adequate notice of the possible consequences of use and even misuse.
Implicit to the duty to warn is the duty to warn with a degree of intensity that would cause a reasonable man to exercise for his own safety the caution commensurate with the potential damages.

We agree with the trial court’s refusal to give the requested instructions because they are not applicable under the facts of this case. The key in this determination is that an automobile is not an inherently dangerous product, as defined in Tampa Drug Company v. Wait, 103 So.2d 603 (Fla.1958), the case cited as the authority for the requested instructions. The court in Wait specifically asserted that it was not dealing with a defective article, but rather “a commodity burdened with a latent danger which derives from the very nature of the article itself.” There the court was dealing with the use of carbon tetrachloride, a product which “appears harmless in and of itself, [but] has lurking in its innocent appearance death-dealing potentialities.”

Although an automobile has long been held to be a dangerous instrumentality, it is so because of the dangers in its use and operation, not because it is dangerous in and of itself. Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). See also, dissenting opinion by Letts, J., in Ford Motor Co. v. Havlick, 351 So.2d 1050 (Fla. 4th DCA 1977).

Given the phrasing of the requested instructions, the discussion of them at the charge conference, and the argument concerning them as set forth in the briefs, there is some uncertainty in our minds as to whether the “inherently dangerous product” referred to is simply the automobile or whether it is actually the fuel storage tank in the automobile. Note, for example, that the instruction actually given focuses on the design and manufacture of the fuel storage tank. On the question of whether the fuel storage tank itself is an “inherently dangerous product”, we find this court’s opinion in Dayton Tire and Rubber Co. v. Davis, 348 So.2d 575 (Fla. 1st DCA 1977), reversed on other grounds, 358 So.2d 1339 (Fla.1978), most helpful. There, in a case involving an allegedly defective tire, the trial court had given an instruction containing much of the exact language requested in this case and the cause was reversed. Reviewing the standard set forth in Wait, the court specifically noted that the fact that a product becomes dangerous due to a defect does not make it an inherently dangerous commodity, one that is dangerous in and of itself.

The types of commodities that have been held to come within the Wait standard and do, therefore, impose a strict duty to warn are highly toxic materials, dynamite, second-hand guns, and drugs. Dayton Tire and Rubber Co. v. Davis, supra. Just as an automobile tire cannot be said to be dangerous in and of itself in the same manner as carbon tetrachloride or dynamite, neither can an automobile fuel storage tank.

Under the circumstances, the jury instructions requested in this case were properly denied. The giving of the requested instructions might, in fact, have been error, as it was in Dayton Tire, because it would have invaded the province of the jury by asserting that as a matter of law the automobile, or the fuel storage tank, was an inherently dangerous product and there was, therefore, a strict duty to warn. See Dayton Tire and Rubber Co. v. Davis, supra, at 582.

In arguing this issue on appeal, plaintiffs have urged that the instructions the court did give were misstatements of the law. The relevant instructions given by the court were as follows:

The issues for your determination on the negligence claim of plaintiffs against the defendant, General Motors Corporation, are whether the defendant was negligent in the design and manufacture of the fuel storage tank of the 1972 Kingswood Estate Station Wagon in question or in failure to warn of a dangerous condition, if any, and, if so, whether such negligence was a legal cause of injury or damage sustained by the plaintiffs. [Emphasis supplied]
Some automobile collisions and resulting injuries are foreseeable as an incident to normal and expected use of an automobile and while automobiles are not made for the purpose of colliding with each other, a frequent and inevitable contingency of normal automobile use will result in some collisions and injury producing impacts. [Emphasis supplied]
There is no liability for injuries from dangers that are obvious, reasonably apparent, or as well-known to the user as they are to the manufacturer. The manufacturer is entitled to assume that the user will perceive that which would be obvious to him in the ordinary use of his own senses, and he is not required to give warning of an obvious danger.

Regarding the first of these three instructions, the trial court, without objection, specifically inserted the phrase “or in failure to warn of a dangerous condition, if any” into the instruction given during and because of consideration of the requested instructions.

As for the second instruction, plaintiffs complain of the trial court’s modification of the language from Ford Motor Co. v. Evancho, 327 So.2d 201 (Fla.1976), by the addition of the qualifying word “some.” A review of the transcript reveals that during the charge conference the judge announced his intention to add the word “some” to what was a requested instruction by plaintiffs and there was no objection made by plaintiffs.

Similarly, as to the claim that the third instruction concerning “obvious danger” is a misstatement of the law, General Motors urges that there was no objection made to that instruction. Plaintiffs have not responded by citing us to any record reference where an objection was made and our own review of the record fails to disclose one.

Where during the conference on instructions to the jury a party fails to object to the court’s instruction, an objection to the instruction may not be raised for the first time on appeal. Zutell v. Sunrise Oldsmobile, Inc., 252 So.2d 822 (Fla. 1st DCA 1971); see also Rule 1.470(b), Fla.R.Civ.P. We decline, therefore, to rule on plaintiffs’ challenge to the jury instructions noted above.

II.

Plaintiffs’ next contention challenges the admission into evidence of Federal Motor Vehicle Safety Standard (FMVSS) 301 coupled with the court’s refusal to instruct on the federal law implementing the standard and customary negligence.

FMVSS 301 is the only federal standard concerning fuel tank performance. It requires that in a frontal impact into a fixed barrier at 30 m. p. h. fuel leakage shall not exceed one ounce per minute. Plaintiffs concede that the vehicle in question met that standard, but urge that the standard was not relevant because the impact at issue in this case was a rear-end collision. This contention is without merit. At issue in this case was the manufacture and design of the automobile fuel tank. The only minimum standard promulgated by the federal government regarding performance of the fuel tank was FMVSS 301. Accordingly, the standard was relevant to the issue of fuel tank security.

As for the denial of requested jury instructions on this issue, the requested instructions were as follows:

I have previously read to you the requirements of Federal Motor Vehicle Standard 301, which is a federal regulation. In that regard, I also instruct you that Title 15, Section 1397(c) of the United States Code provides as follows:
“Compliance with any Federal Motor Vehicle Safety Standard issued under this sub-chapter does not exempt any person from liability under common law.”
If the standards practiced by a party or others in a similar industry were complied with, this is not conclusive proof that the party exercised due care. In other words, compliance with prevailing industry standards does not justify negligence and if an act is inherently negligent it cannot be justified by a showing that a party was customarily negligent in the performance of similar acts.

Firstly, it should be noted, the trial judge had not “previously read ... the requirements” of FMVSS 301 as stated in the proposed instruction. The standard was simply entered into evidence along with all of the other exhibits.

Secondly, plaintiffs’ argument as to why it was error to refuse the instruction relies on two cases, H. P. Hood & Sons, Inc. v. Ford Motor Co., 370 Mass. 69, 345 N.E.2d 683 (1976), and Buccery v. General Motors Corp., 60 Cal.App.3d 533, 132 Cal.Rptr. 605 (1976), both of which involved a claim that compliance with the federal standard was a legal defense. No such claim has been asserted here.

In closing argument counsel for General Motors argued:

There is no deviation from any standard. The government had a standard, a minimum standard, but the government had a standard; and this vehicle passed that standard. It does not mean that negligence couldn’t be found simply because the standard is passed, but the standard is indicative of what is reasonably required.

This does not unfairly “stuff the standard down plaintiffs’ throat” (to paraphrase the brief); it is fair argument.

As for the denial of the second requested instruction, there was no implication in the other instructions or in the arguments or evidence that compliance with prevailing industry standards was conclusive proof of due care.

Taking the jury instructions as a whole, we do not believe that plaintiffs have demonstrated that the jury was misled. Even if there was error in the trial court’s refusal to give the requested instructions, it was harmless.

III.

The final contention is whether comments by counsel for General Motors constituted prejudicial misconduct. This issue has not been preserved for review.

Since voir dire is not included among the many volumes of record provided, we are unable to review the comments made during voir dire, their context, the objections, if any, or the trial court’s ruling. As for alleged improper comments during opening and closing arguments, the record reveals that while counsel for the Bennettes objected to the comments cited, there was no objection on behalf of the plaintiffs. Even if there had been proper objection, we do not believe that the comments were so egregious as to require a new trial.

We do express displeasure at counsel for General Motors referring to a party who had pleaded guilty to manslaughter as an “admitted murderer.” We find counsel’s glib use of the terms manslaughter and murderer interchangeably, in feigned innocence, to be offensive and inexcusable, particularly in light of his own recognition that the remark was “inflammatory.”

The judgment is affirmed.

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

ON PETITION (Motion) FOR REHEARING DENIED

MILLS, Judge.

By their petition (motion) for rehearing, appellants (plaintiffs) contend that the Court overlooked or failed to consider that they objected to the giving of General Motors’ requested jury charge number 37. The Court did neither.

In their initial brief, plaintiffs did not indicate whether they made an objection. In its answer brief, General Motors contended no objection was made and plaintiffs did not deny this in their reply brief.

The Court searched the voluminous record in this case and failed to find an objection or at least a legally sufficient objection.

The record reveals the following pertinent colloquy between the trial court and plaintiffs’ counsel at the conference on jury instructions:

“THE COURT: I don’t care. I like the language of 37 better than 32. Granted, you don’t want either one of them, Mr. Davis, but if there are two, which one? If you have to have one, which one? This is a warning.
MR. DAVIS: Your observation of 37 is that it’s a little bit fairer statement of the law?
THE COURT: I like 37 because it covers both manufacturing as well as the notice aspect of it. I would rather give 37 than 32.
MR. DAVIS: Well, Judge, 32 really goes a lot further than 37. 37 speaks only to dangers that are obvious. Now, 32 goes into the manufacturer acting reasonably to make the product function properly for its intended purpose.
THE COURT: We said that. I’m going to give 37 instead of 32. I will give 37, and I will deny 32.
MR. DAVIS: We still maintain our objection.
THE COURT: I understand.
THE COURT: All right. 38.
MR. BOOTH: Object.
THE COURT: I’m going to deny that. 39.
MR. BOOTH: Object.
THE COURT: I have already given that.
MR. DAVIS: Right.
MR. BOOTH: Prevailing industry standards.
MR. CALDWELL: Read Further. Read the whole thing.
MR. BOOTH: Prevailing industry standards is not the test. Object to it.
THE COURT: Mr. Booth, you better go back and look at another one I gave. I don’t remember if it’s objected to, but I think you better.
MR. DAVIS: Judge, we have objected to every single one of them.
THE COURT: It’s their Number 27.
All right. 39. Well, I have already given that one, or at least the one that I’m going to give in that regard, so I will deny this one. 40. The same. Denied. MR. DAVIS: Wait a second, Judge.
THE COURT: 41. Denied
42. I’m sorry. Let me give you all time to object. You have objected so far to every instruction, so at least let me hear your objection.
MR. BOOTH: I object to both of them.
THE COURT: Do you have an objection?
MR. JUDKINS: We object for the reason that you denied it, Judge.
THE COURT: I haven’t denied 42 yet.

The purported objection made following the trial court’s announcement that it would give 37 but deny 32 means little or nothing. The Court cannot determine whether plaintiffs objected to the giving of 37; the denial of 32, both or neither. Nor can the Court ascertain from the record the grounds for the objection.

Rule 1.470(b), Florida Rules of Civil Procedure, requires that objections to charges must be made at the conference to settle charges and that no party may assign as error the giving of a charge unless he objects.

“An objection which fails to state distinctly the portion or omission or failure to instruct to which objection is made and the specific ground of such objection is not sufficient compliance with the rule.” Henningsen v. Smith, 174 So.2d 85 (Fla.2d DCA 1965).

Plaintiffs’ petition (motion) for rehearing is denied.

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


author: HURLEY, Judge.

text:
    OLD REPUBLIC INSURANCE COMPANY, Appellant, v. Jude P. SHERIDAN and Sandra J. Sheridan, his wife, The Housing Group, Inc., a Florida Corporation d/b/a Jacaranda Lakes, M.A.P. Builders of Coral Springs, Inc., a/k/a Marharjen Corp., a Florida Corporation, and Pool Makers, Inc., a Florida Corporation, Appellees.
    No. 81-488.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.
    Rehearing Denied Jan. 27, 1982.

      Dennis A. Vandenberg of Pyszka & Kes-sler, Fort Lauderdale, for appellant.
    Jack M. Coe of Lee, Schulte, Murphy & Coe, P. A., Miami, for appellees Jude P. Sheridan and Sandra J. Sheridan, his wife.
   HURLEY, Judge.

The issue on appeal is whether a general contractor’s liability insurance policy provides coverage for property damage caused by negligently performed work by an insured contractor. We answer in the affirmative.

The plaintiffs/appellees Jude and Sandra Sheridan purchased a lakeside lot from a developer, The Housing Group, Inc. At the same time they contracted to have a house and swimming pool built on the lot by M.A.P. Builders of Coral Springs, Inc. M.A.P. Builders was The Housing Group’s general contracting arm, though legally a separate company. Both The Housing Group and M.A.P. Builders were insured by the defendant/appellant Old Republic Insurance Company.

Within three months of moving into their new home, the Sheridans noticed that the land in the back yard between the pool and the lake was eroding and falling into the lake. The process continued to the point where the pre-existing slope entirely disappeared and the back yard ended in a sharp four to eight foot cliff a few feet beyond the edge of the pool decking. Also, the pool developed a number of cracks and the surrounding decking began to tilt toward the lake.

After several unsuccessful attempts to have the matter rectified by M.A.P. Builders, the Sheridans filed suit against The Housing Group, M.A.P. Builders and their insurance carrier, Old Republic. The complaint alleged breach of contract against the developer, the contractor and the carrier in Count I and negligence against M.A.P. Builders and Old Republic in Count II. The Sheridans sought judgment for damages, but did not specifically seek repair of the pool.

Old Republic answered, admitting to being the carrier for The Housing Group and M.A.P. Builders but denying coverage for any damages. Thereafter, Old Republic refused to defend its insured. The Sheridans and The Housing Group and M.A.P. Builders asserted that coverage exists under Old Republic’s policy.

Next, the Sheridans moved for summary judgment on the issue of negligence. The Housing Group and M.A.P. Builders admitted their negligence and the trial court granted the motion. The court also determined that coverage existed for the back yard property damage under the policy issued by Old Republic to M.A.P. Builders. From this determination of coverage, Old Republic appeals.

The insurance policy in question contains the following two exclusions which are at issue:

This insurance does not apply:
(n) To property damage to the named insured’s product arising out of such products or any part of such products; (o) To property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith.

Appellant, Old Republic, maintains that clause (n) precludes coverage for the damage incurred in the instant case. Old Republic contends that the house, pool and the underlying property are all “the named insured’s products.” Thus, it asserts that the erosion caused by the pool’s weight and placement was property damage arising out of the named insured’s products and, consequently, clause (n) precludes liability. On the other hand, the Sheridans assert that only the pool and house are the named insured’s products. Though the land was purchased from the developer, the Sheri-dans content that it was not a “product” in the usual sense of that word; it did not result from the developer’s or contractor’s workmanship. We agree with this interpretation and hold that clause (n) does not preclude liability.

Clause (o) excludes coverage for property damage to work performed by the named insured arising out of the work itself. Old Republic claims this excludes coverage for damage to the pool which resulted from the pool’s construction or placement. The Sheridans conceded this point in their brief and stated that they were not seeking damages for repair of the pool.

The Florida Supreme Court recently considered identical exclusionary clauses in a contractor’s general liability insurance contract. In LaMarche v. Shelby Mutual Insurance Co., 390 So.2d 325 (Fla.1980) the Court held that “the purpose of this comprehensive liability insurance coverage is to provide protection for personal injury or for property damage caused by the completed product, but not for the replacement and repair of that product.” 390 So.2d 325, 326. LaMarche held that the clauses in question did not exclude damages caused by poor workmanship but did exclude payments for repairing shoddy work.

Applying this precedent to the case at bar we affirm the trial court’s order which found coverage under Old Republic’s policy for the property damage. We do not believe the trial judge intended to impose any greater liability than did the Supreme Court in LaMarche. Thus, we read the order as finding coverage and liability for the soil erosion caused by the negligent pool installation; the order did not impose Habib ity for the repair or replacement of the, pool.

Accordingly, the trial court’s order is affirmed.

ANSTEAD and HERSEY, JJ., concur.


author: BASKIN, Judge.

text:
    Ira Jay COHEN, O.D., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF OPTOMETRY, Appellee.
    No. 81-240.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 1981.
    Rehearing Denied Jan. 13, 1982.

      Harold T. Fields, Jr., Michael B. Chavies, Miami, for appellant.
    Arthur C. Wallberg, Tallahassee, for ap-pellee.
    Before BASKIN, DANIEL S. PEARSON, and FERGUSON, JJ.
   BASKIN, Judge.

Following an informal hearing, appellant was found guilty of charges contained in an administrative complaint. The Board of Optometry suspended his license for three months,. imposed a fine of $2,500, and placed appellant on probation for a period of three years. Appellant contends that the informal hearing he requested, pursuant to section 120.57(2), Florida Statutes (1979), concerning the complaint filed against him by appellee, should have been terminated and a formal hearing conducted because issues of fact were disputed during the hearing. We disagree.

Section 455.225(4), Florida Statutes (1979) states:

A formal hearing before a hearing officer from the Division of Administrative hearings of the Department of Administration shall be held pursuant to chapter 120 unless all parties, including the Department of Professional Regulation, agree in writing that there is no disputed issue of material fact.... If any party raises an issue of disputed fact during an informal hearing, the hearing shall be terminated and a formal hearing pursuant to chapter 120 shall be held. (Emphasis supplied).

In our estimation, appellant failed to raise any issue of disputed fact and merely presented matters in mitigation of the charges. The “Election of Rights” form he executed prior to the informal hearing stated:

I do not dispute the allegations of fact in the Administrative Complaint but do wish to be accorded an informal hearing or proceeding, pursuant to Section 120.-57(2), Florida Statutes (1979), at which time I will be permitted to submit oral and/or written evidence in mitigation of the complaint to the Board.

At no time was the election of rights form withdrawn or challenged prior to the presentation of the issue in this appeal.

For these reasons, we affirm the decision of the Board of Optometry.

      . The charges included practicing optometry under a corporation name, failing to display his license, and failure to respond to a summons.


author: DAUKSCH, Chief Judge.

text:
    Linda L. McGOUGH, Appellant, v. STATE of Florida, Appellee.
    No. 80-561.
    District Court of Appeal of Florida, Fifth District.
    Nov. 11, 1981.
    Rehearing Denied Dec. 14, 1981.

      Edward R. Kirkland, P. A., Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from a conviction of murder in the second degree.

The appellant was charged with murder in the first degree and went to trial on that charge. At trial she requested an instruction be given the jury relating to the penalty she could receive if convicted. The trial judge refused to give the penalty instruction. Tascano v. State, 393 So.2d 540 (Fla.1980), rehearing denied, Feb. 27, 1981, requires the giving of such an instruction in compliance with Florida Rule of Criminal Procedure 3.390(a):

The presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel and upon request of either the State or the defendant the judge shall include in said charge the maximum and minimum sentences which may be imposed (including probation) for the offense for which the accused is then on trial (emphasis added).

Although our Supreme Court has said a Tascano violation is reversible error we do not believe Tascano applies here. There is no requirement in the law that a trial judge instruct the jury as to the penalty for a lesser included offense.

The failure to give an instruction regarding the penalty for a crime of which the accused was not convicted must be harmless error. See James v. State, 393 So.2d 1138 (Fla. 3d DCA 1981).

AFFIRMED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.


author: FRANK D. UPCHURCH, Jr., Judge. COBB, Judge,

text:
    Jessie Claude DONALDSON, Appellant, v. STATE of Florida, Appellee.
    No. 81-108.
    District Court of Appeal of Florida, Fifth District.
    Nov. 11, 1981.
    Rehearing Denied Dec. 29, 1981.

      James B. Gibson, Public Defender, and Julianne Piggotte McLarty, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant was charged with violation of his probation. At the hearing, he admitted that he had pleaded nolo contendere to a shoplifting charge. Other than the fact of the nolo plea, no other evidence was presented as to a probation violation. The trial judge found that appellant had violated a condition of probation which stated: “you will live and remain at liberty without violating any law.” Appellant appeals the judgment and sentence.

Appellant contends that he pleaded nolo contendere to the shoplifting charge oh the advice of the public defender only because work release had been negotiated. He asserts that while he was not guilty, he did not wish to contest the charges.

Probation may be revoked on the basis of a guilty plea alone, see, e. g., Thomas v. State, 350 So.2d 568 (Fla. 3d DCA 1977), but probation may not be revoked merely on the basis of an arrest. See Purvis v. State, 397 So.2d 746 (Fla. 5th DCA 1981). Some courts refer to a rule that probation may be revoked solely on the basis of a conviction of a subsequent crime. Demchak v. State, 351 So.2d 1053 (Fla. 4th DCA 1977). Conviction for the crime is not necessary where the crime itself is in evidence. Holt v. State, 385 So.2d 1133 (Fla. 5th DCA 1980). However, if revocation is based solely on a conviction and the conviction is reversed, the revocation must likewise be reversed. See, e. g. Straughter v. State, 384 So.2d 218 (Fla. 3d DCA 1980).

A plea of nolo contendere does not admit guilt. It has been stated by one writer that:

The plea of nolo contendere admits the facts for the purpose of the pending prosecution and to that extent has the same effect as a plea-of guilty, but unlike a plea of guilty it cannot be used against the defendant in a civil suit as an admission of the facts charged in the indictment when accompanied by a protestation of the defendant’s innocence.

4 Wharton’s Criminal Procedure § 1903, quoted in Vinson v. State, 345 So.2d 711, 715 (Fla.1977). As Vinson states, “various reasons may exist why a defendant conscious of innocence may be willing to forego his right to make defense if he can be permitted to do so without acknowledging his guilt.” 345 So.2d at 713.

Florida Rule of Criminal Procedure 3.172(d) provides:

Before the trial judge accepts a guilty or nolo contendere plea, he must determine that the defendant either 1) acknowledges his guilt, or 2) acknowledges that he feels the plea to be in his best interest, while maintaining his innocence.

Here, appellant alleges that he maintained his innocence and pleaded nolo contendere pursuant to a plea bargain. If true, such a plea should not be an admission by the defendant that he had committed a crime constituting a violation of probation as would occur upon a guilty plea.

While Florida Rule of Criminal Procedure 3.172(a) requires the trial judge satisfy himself that a nolo contendere plea is extended voluntarily and that there is a factual basis for it prior to accepting the plea, there is no requirement that defendant acknowledge or admit guilt. Therefore, at the hearing to determine whether a defendant is guilty of a parole violation, an inquiry should be made into the circumstances of the court’s acceptance of the nolo plea. If the plea of nolo contendere was accepted while defendant maintained innocence, an inquiry should be made to determine if the defendant did violate the conditions of his probation. However the court cannot base the probation violation on the nolo plea alone. In the case before us, there was no finding by the court that appellant did, in fact, violate the terms of his probation.

We therefore REVERSE and REMAND for further proceedings.

SHARP, J., concurs.

COBB, J., dissents with opinion.

COBB, Judge,

dissenting.

The nolo contendere plea referred to in the majority opinion resulted in an adjudication of guilt by the trial judge in that case. That conviction was never reversed and cannot be collaterally attacked in the subsequent revocation hearing. A conviction is a sufficient basis for revocation of probation. State v. Spratling, 336 So.2d 361 (Fla.1976); Dearing v. State, 388 So.2d 296 (Fla. 3d DCA 1980); Franklin v. State, 356 So.2d 1352 (Fla. 2d DCA 1978); Demchak v. State, 351 So.2d 1053 (Fla. 4th DCA 1977). Florida Rule of Criminal Procedure 3.172(a) provides:

Before accepting a plea of guilty or nolo contendere the trial judge shall satisfy himself that the plea is voluntarily entered and that there is a factual basis for it.

Contrary to the implication of the majority opinion, a factual basis of guilt was required for the trial judge to enter a judgment of conviction based upon the nolo plea. We have no right whatsoever to assume, absent any record to the contrary, that the trial judge in the earlier case failed to perform his procedural duty. I would affirm.

      . The state merely introduced the judgment. Appellant testified a woman in Zayres dropped her bag in the exit door; he picked it up, and attempted to return it to her. The store security guards stopped him. The bag contained unpaid for women’s clothing.


text:
    C. N., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 81-343.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 1981.
    Rehearing Denied Dec. 28, 1981.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm appellant’s adjudication of delinquency for the offense of lewd and lascivious behavior.

GRIMES, A. C. J., and OTT and DAN-AHY, JJ., concur.


text:
    Steven Darby McDONALD, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1020.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 1981.
    Rehearing Denied Jan. 15, 1982.
    Steven Darby McDonald, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

Petitioner, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    Frank Joseph VECCHIO, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2050.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 1981.
    Frank Joseph Vecchio, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and JORGENSON, JJ. .
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    In re: Extradition of Wayne ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 81-343.
    District Court of Appeal of Florida, Fifth District.
    Nov. 18, 1981.
    Rehearing Denied Dec. 23, 1981.

      Robert J. Buonauro, P. A., Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

See State ex rel. Meyers v. Miller, 388 So.2d 1358 (Fla. 5th DCA 1980).

AFFIRMED.

COBB, FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    Manuel HURTADO, Appellant, v. Rose-Jean HURTADO, Appellee.
    No. 80-1301.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 1981.

      Richard G. Lubin and Mary Jane Merola of Lubin & Hamill, P. A., West Palm Beach, for appellant.
    Edna L. Caruso, and Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

This is an appeal of a final judgment of dissolution of marriage wherein the trial court awarded appellee custody of the parties’ two children, the marital home as lump sum alimony, exclusive use and possession of the furniture and furnishings in the marital home, child support of $200 per month per child, plus all medical, dental, orthodontic and prescription medication expenses incurred for the children, the parties’ 1977 Lincoln, permanent alimony of $1600 per month, and reasonable attorney’s fees as yet undetermined. Appellant was awarded the parties’ two townhouses, boat and trailer. The trial court further ordered that appellant was to maintain medical insurance and life insurance during the children’s minority; that the parties were to divide equally their IBM stock, savings certificates and municipal bonds; and that appellant was to pay appellee $4,400, which sum she advanced to pay the parties’ joint tax obligation. We affirm.

At the time of the final hearing in May, 1980, the parties had been married for 12lA years. Appellant, then 46, was a physician; appellee, then 33, was a housewife. The two children were then 10 and 8 years of age. The marriage was broken by appellant’s affair with a younger woman during which the parties reconciled three different times. At the time of the final hearing, appellant was living with his girl friend and paying the rent on the apartment they shared.

Appellee’s financial affidavit reflects that she has expenses of $2,416 per month after elimination therefrom of any expenses for the children and the townhouses awarded to the husband. She further testified it was necessary to withdraw from $300 to $500 monthly from her savings account or to borrow from her father in order to meet her expenses during the period when appellant was paying $1800 per month for temporary alimony and child support. Appellee was accustomed to a comfortable standard of living. The parties resided in a three bedroom home with pool situated in a nice neighborhood on a canal. They had purchased five new automobiles during their marriage and had traveled to Mexico and Peru as well as California and other states. Appellee was not restricted in her use of credit cards or in purchases of furnishings for the home and of clothes for herself.

Appellant is an emergency room physician and also medical director of a hospital in Palm Beach County. His P.A., of which he is the sole stockholder, grossed $65,623 for the year ending August 31, 1979 and expected an increase of approximately $3,000 annually. Appellant was paid $42,-600 in salary during the 1979 fiscal year and an additional $10,650, or 25% of his salary, was contributed to his pension plan. In the fiscal year 1980 he was receiving a salary of $45,000 and $11,250 was contributed to his pension plan. In addition he received interest income.

Appellant first contends that the court erred in awarding alimony of $1600 per month and child support of $200 per month per child. After considering the needs of the wife and the ability of the husband to provide for them, see Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), we hold that the trial court did not abuse its discretion in its determination of the amount of alimony and child support.

Appellant next urges that appellee was not entitled to permanent alimony because she has maintained a current nursing license by successfully completing the required continuing education courses, and has continued her malpractice insurance. Additionally, he relies on testimony that nursing positions were open with flexible hours that would provide appellee with support and not detract from her duties and responsibilities to the children. The issue is whether the trial court abused its discretion in awarding permanent alimony instead of rehabilitative alimony. We find no abuse.

With the birth of their first child, it was appellant’s wish that appellee stay home and raise the children as the appellant had been raised. Appellee agreed and testified that at no time during the marriage did appellant suggest that she go to work. Ap-pellee said at final hearing that she did not wish to go to work but desired to continue to care for the children as she had done since their birth. During the marriage the only assistance appellee had was a maid one-half day a week. For the past 10 years she cared for the daily needs and activities of the children who required a full time mother.

There is well reasoned authority which supports appellee’s position. In Walton v. Walton, 354 So.2d 464, 466-467 (Fla. 1st DCA 1978), the court said:

Where the custodial parent of a child is willing to remain in the home and make a home for children of tender years, extending by precept and example the guidance so vitally needed in the early and teen years of their lives, the court is justified in awarding to such parent, permanent alimony to be paid by the other parent based upon need and ability to pay. What we write here is applicable equally to a mother and wife or to a father and husband, where he or she has been awarded the custody of the children, has a need for financial assistance, and the person not having such custody is financially able to pay reasonable alimony as well as child support. Such allowance of permanent alimony may, in such circumstances as here presented, be favorably considered by the trial court. We refer to the opinion of this Court in Ruhnau v. Ruhnau, 299 So.2d 61 (Fla. 1st DCA 1974), wherein we said:
“We also point out that the word ‘permanent’ is not necessarily synonymous with the word ‘forever’. Change of circumstances, including ability of self-support after children are ‘grown and gone’ clearly justifies, depending upon the circumstances of each case, modification of alimony judgments (Florida Statute 61.14).”

Similarly, in Bender v. Bender, 363 So.2d 844, 845 (Fla. 1st DCA 1978), the appellate court approved the following determination by the trial court:

The essential plan of the parties concerning their children should continue regardless of their marital status, if such is possible. It was decided by both parties, in better times, that the wife should be a full time mother; the husband has the means to see that objective fulfilled. So it shall be.

See also Hinebaugh v. Hinebaugh, 403 So.2d 451 (Fla. 5th DCA 1981).

Appellant wishes us to compel appellee to return to work and abandon her role as mother and homemaker in order to lighten his financial burden, enabling him to do other things. Having abandoned the family circle he created in order to be the companion of another woman, thus creating financial difficulties for appellee as well as himself, appellant should find it difficult to locate precedential support. Such inclination does not exist in this court. See Williamson v. Williamson, 367 So.2d 1016 (Fla.1979).

Nevertheless, it is not our intention, by approving the award of permanent alimony, to turn a young, healthy, employable woman into an “alimony drone” for the balance of her unmarried life. When the children reach majority, or perhaps prior thereto, a modification may be in order. However, we do not speculate at this time as to the wife’s future needs nor the husband’s ability to provide for them.

Appellant’s third point is that although he had no objection to appellee’s use and possession of the marital home during the children’s minority, it was error to award her the home as lump sum alimony. By virtue of the equitable distribution in the final judgment, including the award of the parties’ townhouses to appellant, the parties’ respective net assets appear to be as follows:

Appellant
Equity in townhouses $22,800
Checking account 5,300
Certificates of deposit 15,000
*IRA account 2,200
•Life insurance deferment plan 7,700
*PA pension plan 40,000
Equity in 1979 Trans Am 3,800
Boat and trailer 500
One-half of certificates of deposit 7,500
One-half of municipal bonds 19,500
One-half of IBM stock 4,000
Total $128,300
* Tax deferred items
In addition, appellant is sole stockholder of PA
Appellee
Equity in marital home $61,000
1977 Lincoln 4,000
Certificates of deposit 15,000
Clothing and jewelry 1,500
Savings and checking accounts 200
Repayment from appellant of taxes paid 4,400
One-half of certificates of deposit 7,500
One-half of municipal bonds 19,500
One-half of IBM stock 4,000
Total $117,100
In addition, appellee has exclusive use of furniture and furnishings ($8,000).

In Canakaris v. Canakaris, supra at 1201, the court said:

In granting lump sum alimony, the trial court should be guided by all relevant circumstances to ensure “equity and justice between the parties.” ... A judge may award lump sum alimony to ensure an equitable distribution of property acquired during the marriage, provided the evidence reflects (1) a justification for such lump sum payment and (2) financial ability of the other spouse to make such payment without substantially endangering his or her economic status. Brown v. Brown [, 300 So.2d 719 (Fla. 1st DCA 1974) ] In our opinion, the award of the marital home as lump sum alimony may be coupled with other lump sum alimony or permanent periodic alimony awards if justified by the evidence.

While the award here of the marital home as lump sum alimony coupled with the remainder of the award of permanent alimony and child support reaches the outer limits of the trial court’s discretion, it did not exceed those limits.

Appellant’s final point is that the trial court erred in awarding attorney’s fees with the amount to be determined later. Since no award has actually been entered, the issue is not ripe for appellate review. Vanderslice v. Vandersliee, 396 So.2d 1185, 1187 (Fla.4th DCA 1981).

AFFIRMED.

ANSTEAD and HERSEY, JJ., concur.


author: BERANEK, Judge.

text:
    George SANGAS, Appellant, v. Penelope SANGAS, Appellee.
    No. 81-130.
    District Court of Appeal of Florida, Fourth District.
    Dec. 2, 1981.
    Rehearing Denied Jan. 11, 1982.

      Robert L. Saylor of Saylor & Beatty, Stuart, for appellant.
    Russell J. Ferraro, Jr., of McManus, Stewart & Ferraro, P.A., Stuart, for appel-lee.
   BERANEK, Judge.

Husband appeals from a final judgment of dissolution of marriage. We find an abuse of discretion in regard to resolution of property and financial issues and reverse.

The parties were married for 33 years and have three children. At the time of dissolution a 15 year old child was still residing in the home. Both husband and wife were in their mid-fifties at the time of dissolution. The parties lived in New York for most of their married life. Husband had a business there and wife assisted though the extent and value of her assistance is disputed. Wife worked at other jobs outside the home at various times during the marriage and also performed the tasks of a wife and mother throughout the marriage.

The parties eventually migrated to Stuart, Florida and brought with them approximately $75,000 in cash resulting from the sale of the marital home in the north. Over the next approximate 6 years the parties owned a series of three restaurant/bar establishments. The first establishment was held in the wife’s name and was run by the parties for approximately one year. Husband thereafter obtained a liquor license in his own name and operated a second bar for two and a half years. In the meantime land was purchased and a new business (the Commodore Bar and Package Store and related shops) was built on the property. This business has been quite successful. Although disputed, it appears that both parties have been instrumental in the success of the business.

The wife sought dissolution of the marriage in May of 1980 and a final judgment of dissolution was entered on December 23, 1980. The judgment dissolved the marriage and granted child custody and child support to the wife in amount of $600 per month for the support of the single minor child who remained at home. The wife was awarded lump sum alimony of $108,000. This amount was to be paid at the rate of $1,000.00 per month for 108 months. It was ordered that the alimony award would survive the death of the husband or remarriage of the wife and that the husband was required to maintain a life insurance policy on his own life to insure payment of the balance due under the lump sum alimony award in the event of his death.

The final judgment was structured by the trial court under the headings of dissolution, child custody, child support, alimony, and a separate heading denominated as “equitable distribution.” Under this latter category, the trial court disposed of all the remaining real property, personal property and intangible property of the parties. The clear intent of the final judgment was that these items were disposed of through the vehicle of equitable distribution rather than on the basis of any theory of alimony or special equities. Under the equitable distribution category the court disposed of the parties’ major asset, the Commodore Bar, and related businesses by awarding all of the wife’s interest in the business and real estate to the husband and by then awarding to the wife the sum of $240,000 as her interest in the property. The sum of $240,-000 was to be paid at the rate of $10,000 per year. The wife was also awarded a lien on the property in the full amount of $240,000 and the husband was required to execute the necessary documents to perfect the lien. Prior to dissolution the parties had owned the real estate on which the business was located as tenants by the entireties and the liquor license, inventory and furnishings were in the husband’s individual name. The approximate value of the bar business was $508,000 with a $172,000 lien resulting in net value of $336,000.

The parties owned a marital home worth approximately $80,000 with a $38,000 lien. The home was awarded to the wife along with $10,000 worth of furnishings. The wife was also awarded a $5,000 deposit on a condominium which had been withdrawn from joint funds and a $7,500 note receivable which had been in the husband’s name individually. Two real estate investment lots were owned by a corporation which was controlled by the husband. The court equitably distributed these assets by leaving them titled in the corporation but simply awarding the wife $12,000 which was an amount equal to the net value of one of the lots. The husband’s corporation was apparently left with the full mortgage obligation. The parties also owned an income producing warehouse property out of the state of Florida. This property was jointly owned and the entire interest in the warehouse was awarded to the wife representing a $30,000 net value plus the future income from the property.

A summary of the court’s disposition of various property interests through the vehicle of “equitable distribution” is as follows:

Even if this marriage is viewed as a complete partnership entitling the parties to share equally in its fruits, it is obvious the trial court has awarded the wife substantially more than one-half. We see nothing in the record which would entitle the wife to a share substantially in excess of one-half and conclude that the court below abused its discretion in the financial awards under Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980) and Duncan v. Duncan, 379 So.2d 949 (Fla.1980).

In addition, the court erred in disposing of the parties various property interests and in transforming these interests by use of the theory of equitable distribution as an independent vehicle for an award. Our view of Canakaris and Duncan is that these decisions attempted to clarify the law as to lump sum alimony and permanent periodic alimony in Canakaris and special equities and exclusive possession of property in Duncan. These decisions did not create a totally new vehicle for the award and division of property. Trial courts are still bound to exercise their broad discretion through the existing remedies. In the Ca-nakaris decision the court stated:

The judge possesses broad discretionary authority to do equity between the parties and has available various remedies to accomplish this purpose, including lump sum alimony, permanent periodic alimony, rehabilitative alimony, child support, a vested special equity in property, and an award of exclusive possession of property. As considered by the trial court, these remedies are interrelated; to the extent of their eventual use, the remedies are part of one overall scheme. It is extremely important that they also be reviewed by appellate courts as a whole, rather than independently.

382 So.2d at 1202. When the court listed the various remedies it clearly did not intend to create a totally new vehicle named “equitable distribution” as the trial court employed in the instant case. We conclude that an “equitable distribution of the property of the parties acquired during their marriage,” as this language was used by the Supreme Court, refers to an end or purpose rather than a vehicle or remedy.

On the basis of the above, we find the trial court erred. The property of the parties should have been disposed of by resort to the concepts of alimony and special equities with due regard given for the contributions of both parties. Since these concepts are interrelated, we have no alternative other than to reverse all financial aspects of the final judgment with the exception of the child support figure which is hereby affirmed. See Bradley v. Bradley, 327 So.2d 253 (Fla. 4th DCA 1976). The cause is remanded for further proceedings in accordance with the law as established by the aforecited authorities.

REVERSED AND REMANDED.

DOWNEY and HURLEY, JJ., concur.

      . The court transformed the character of various property interests. The wife’s interest in the Commodore Bar real estate was transferred to husband. Wife was then awarded a fixed ($240,000) interest in the real estate, liquor license, inventory and personal property of the business and awarded a general lien against all of these assets.


author: SCHWARTZ, Judge.

text:
    Richard Edward COX, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1971.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.

      Bennett H. Brummer, Public Defender and Alan M. Medof, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   SCHWARTZ, Judge.

The defendant Cox appeals from the denial of a Fla.R.Crim.P. 3.850 motion to vacate his conviction on the asserted ground of ineffective assistance of counsel. At Cox’s 1973 robbery trial in the Dade County Criminal Court of Record, his assistant public defender did not object to extensive testimony by the investigating police officers that he remained silent when arrested and asked about his involvement in the offense. Notwithstanding, this court reversed Cox’s conviction for a new trial in a delayed Baggett v. Wainwright, 229 So.2d 239 (Fla.1969) appeal which was decided on March 21, 1978. Cox v. State, 361 So.2d 168 (Fla.3d DCA 1978). On this issue, the court stated:

The appellant contends that he was deprived of his constitutional right against self-incrimination when the State was permitted to elicit testimony at trial from the arresting officers concerning his silence while in custody. We agree and reverse on the authority of Bennett v. State, 316 So.2d 41 (Fla.1975)

Rehearing was denied on May 5, 1978. On July 28, 1978, the supreme court, resolving a pervasive conflict which had existed among the district courts of appeal, held in Clark v. State, 363 So.2d 331 (Fla.1978) that, while any reference to post-arrest silence per se constitutes reversible error, a contemporaneous objection and motion for mistrial were absolutely required to preserve the issue for appellate review. Since Cox’s attorney had not taken these steps, the supreme court held in State v. Cox, 372 So.2d 1114 (Fla.1979):

The decision of the District Court of Appeal, Third District, in Cox v. State, 361 So.2d 168 (Fla.3d DCA 1978), which is in direct conflict with our recent decision of Clark v. State, 363 So.2d 331 (Fla. 1978), is hereby quashed, and this cause is remanded for further proceedings consistent with our decision in Clark.

Accordingly, we entered an order on the supreme court mandate affirming the conviction. Cox v. State, 374 So.2d 1140 (Fla.3d DCA 1979). Cox then brought the present 3.850 motion claiming that the failure timely to make the pertinent objection at trial — which would have unquestionably secured a new trial if then requested— amounted to a breach of his sixth amendment right to the reasonably effective assistance of counsel. We agree with the trial court’s rejection of this position.

In our view, the undisputed circumstances of this case do not satisfy the requirement which is the underlying basis of any claim of ineffective assistance, that the attorney have been “guilty” of a

specific omission or overt act [which] was a substantial and serious deficiency measurably below that of competent counsel.

Knight v. State, 394 So.2d 997, 1001 (Fla. 1981). In making this determination, it is obvious that the actions in question must be gauged by the law prevailing at the time they occurred, Blatch v. State, 389 So.2d 669, 672-73 (Fla.3d DCA 1980), and that

counsel will [not] be judged ineffective by a standard based on hindsight. United States v. Fessel, 531 F.2d 1275 (5th Cir. 1976). Nor does this standard mean that counsel is to be judged ineffective by virtue of his failure to anticipate future developments in the law. Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); Davis v. Wainwright, 547 F.2d 261 (5th Cir. 1977).

Meeks v. State, 382 So.2d 673, 675-76 (Fla. 1980). Accord, e.g., Knight v. State, supra, at 394 So.2d 1003; Nelson v. Estelle, 642 F.2d 903, 908 (5th Cir. 1981), and cases cited. We conclusively — and perhaps uniquely — know from our own reversal of the same judgment which is now sought to be vacated that this principle is directly applicable here. It was simply not necessary in 1973 to object to testimony concerning the defendant’s invocation of his Miranda rights to preserve the point for appellate purposes. In 1967, we had squarely so held in Jones v. State, 200 So.2d 574 (Fla.3d DCA 1967), and had rather consistently maintained that position through and including Cox v. State itself. See also, e.g., Weiss v. State, 341 So.2d 528 (Fla.3d DCA 1977); Davis v. State, 342 So.2d 987 (Fla.3d DCA 1977), cert. denied, 353 So.2d 679 (Fla.1977); Smith v. State, 342 So.2d 990 (Fla.3d DCA 1977); but see, Mansfield v. State, 338 So.2d 857 (Fla.3d DCA 1976), cert. dismissed, 342 So.2d 1102 (Fla.1977). It was not until Clark was decided within weeks of Cox that it was revealed that the law of Florida was to the contrary of this position. Surely counsel cannot be held to a degree of insight and foresight greater than that of many judges of the court of appeal of the district in which he practices — however misguided they are only later revealed to have been.

Even beyond this, it might well be argued that at the time it was affirmatively in the client’s best interest that counsel actually refrain from objecting. Then, Bennett v. State, 316 So.2d 41 (Fla.1975), as now, Clark v. State, supra, at 363 So.2d 335; Barnes v. State, 375 So.2d 40 (Fla.3d DCA 1979), a reference to the right to silence was reversible without regard to whether it was otherwise harmful. Contra, Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). “Lying back” without objecting therefore gave the defendant two bites at the apple. If he were acquitted in the first trial, fine; if not, he would win (as Cox did) an “automatic” new trial on appeal. In fact, it was largely to eliminate this entirely one-sided gamble that Clark was decided as it was. See Clark v. State, supra, at 363 So.2d 335. But, again, Clark was rendered five years after Cox’s trial and three months after he won his short-lived reversal. Before its appearance, the “no-objection” rule was so well-established in this district that the Dade County public defender’s office, of which trial counsel was a member, argued in Williams v. State, 366 So.2d 817, 819 (Fla.3d DCA 1979), cert. denied, 375 So.2d 912 (Fla.1979) that defense counsel so relied upon it and indeed had such a “vested interest” in its existence that Clark should not be retroactively applied. Under all these circumstances, it appears as a matter of law that counsel’s inaction at trial did not then in any sense or in any manner render his representation of the defendant constitutionally ineffective.

For this reason, the order under review is

Affirmed.

      . Of course, it no longer matters that his lawyer was assigned rather than retained. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Vagner v. Wainwright, 398 So.2d 448 (Fla.1981).

      . The actual testimony was as follows:
      Q. [Assistant State Attorney]: What did you do next?
      A. [Detective Albert LaVoie, Dade Co. Public Safety Department]: After I placed him under arrest I advised him of his constitutional rights. I have a card in my wallet and I read the card to him. He acknowledged each right and stated that he did not want to talk to me....

      Q. Is this the man who was driving the automobile?
      A. [Officer Ralph Hamilton, Dade Co. Public Safety Department]: Yes, sir.
      Q. All right, what happened next?
      A. He gave Officer LaVoie a Florida driver’s license and he asked Officer LaVoie if he was speeding and Officer LaVoie said ‘No, you were not speeding. You are a suspect in an armed robbery that occurred in Miami Springs a few minutes ago,’ and at this time the defendant did not say anything else.

      . An earlier appeal from the sentences only resulted in the vacation of a five year sentence for possession of a firearm during the commission of the robbery. Cox v. State, 300 So.2d 64 (Fla.3d DCA 1974).

      . The decision was a per curiam opinion of a two-judge majority consisting of Justice Boyd of the Florida Supreme Court and retired Judge Carroll, both sitting as Associate Judges. Judge Kehoe dissented “for the reasons set forth in ... Clark v. State, 336 So.2d 468 (Fla.2d DCA 1976).” 361 So.2d at 169.

      . In those pre-en banc days, the exceptions were dependent upon the make-up of the respective panel which decided the particular case.

      . The defendant argues here that Clark simply restated the contemporaneous objection requirement in accordance with an established principle which had been applied in Florida to similar situations at least since State v. Jones, 204 So.2d 515 (Fla.1967). Thus, it is said, counsel should be held to have known about it in 1973. While this approach may satisfy the classic Blackstonian view that courts merely explore, discover and then announce what the law is and always has been, see Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), it is not in accordance with the realities which surrounded the issue before Clark was decided. State v. Jones involved only prosecutorial comment during final argument on the defendant’s failure to take the stand. On the other hand, our decision in Jones v. State concerned the present issue of testimonial reference and was cited with obvious approval by the supreme court in Bennett v. State, 316 So.2d 41, 42 (Fla.1975). The diverse conclusions which might be drawn from these judicial clues, see discussion in Clark v. State, 336 So.2d 468, 470-72 (Fla.2d DCA 1976), led to a large number of directly conflicting cases on the issue, most of them — including Cox — holding that no objection was required. See cases collected, Tsavaris v. Scruggs, 360 So.2d 745, 758-59 (Fla. 1977) (Adkins, J., dissenting from denial of rehearing). The problematical nature of even the supreme court’s ultimate resolution of the question is evidenced by the facts that Justice Adkins, the author of Bennett, strongly and persuasively dissented in Clark, see 363 So.2d at 335-37, and that Justice Boyd, who concurred in the majority opinion, had shortly before agreed to the contrary position while sitting on this court in this very case. See n. 4, supra.

      . Clark stated that, since a timely motion for mistrial must be granted — otherwise “harmless” error or not — counsel’s failure to make such a motion must be deemed to represent a tactical decision to continue with the present trial, presumably because it is going well, rather than take his chances with a new one. See also, State v. Cumbie, 380 So.2d 1031 (Fla.1980); Peterson v. State, 376 So.2d 1230, 1235, n.7 (Fla. 4th DCA 1979), cert. denied, 386 So.2d 642 (Fla.1980). The defendant, it was held, “will not be allowed to await the outcome of the trial with the expectation that, if he is found guilty, his conviction will be automatically reversed.” Clark, supra, at 363 So.2d 335.
      It is the height of irony that this principle might well be undercut, in fact destroyed by just the medium employed in this case. If it appears in a post -Clark case that no motion for mistrial was made, not as a tactical decision, but (as Cox’s lawyer testified below) out of inadvertence, ignorance, or neglect, a subsequent conviction, while immune to challenge on direct appeal under Clark, is, just because of Clark, at least highly vulnerable to a Rule 3.850 motion based on ineffective assistance of counsel. In this scenario, the defendant would be given just the heads-I-win, tails-you-lose assurance of two trials Clark was decided in order to eliminate, solely because, in a kind of renvoi, counsel did not do what Clark said he must do in order to preclude precisely that from happening. (It is arguable that this process is even “worse” than reversal on direct appeal, since it would involve additional delay with its almost inevitable prejudice to the prosecution.) Thus, in another paradox, counsel’s supposed ineffectiveness would turn out to be supremely advantageous to the interests of his 'client. See the concerns in this regard well-expressed by Judge Ott in State v. Dukes, 388 So.2d 651 (Fla.2d DCA 1980) (specially concurring opinion) and Chief Judge Hubbart in Edwards v. State, 393 So.2d 597, 600 (Fla.3d DCA 1981) (dissenting opinion). (Indeed, that is one of the bases of our conclusion that Cox’s lawyer’s failure to object was good practice at the time — a conclusion which presents the ultimate irony: Cox loses because his lawyer was not ineffective; a post-Clark defendant might win because his lawyer is ineffective for doing the same thing.) We consider it fortunate that, because of the time frame involved in the present case, we may only adumbrate and need not decide these issues.

      . And may not now. See note 7, supra.

      . The trial judge based his ruling on the conclusion that the evidence against Cox at the trial was so overwhelming that the witnesses’ references to his post-arrest silence were “harmless error.” We agree with this characterization of the record. We have serious doubts, however, which we are not required to resolve here, as to whether it may support a determination of effectiveness in the light of the supreme court’s rejection of a “harmless error” approach to the question in favor of a prophylactic rule which requires an automatic mistrial or reversal whenever the issue is properly preserved. See text, supra, at p. 636. (We note that the lack of a requirement of prejudice exacerbates the possible mischief involved in a new trial required after a projected Rule 3.850 motion. Note 7, supra.) We leave for another day, however, the extremely difficult question raised by the interplay of these principles: whether, in the present context, the Knight requirement that “the deficient conduct affected the outcome of the court proceedings,” 394 So.2d at 1001, refers to the particular trial at which no mistrial motion was made, or to a final disposition of the case, that is, the one which — if “harmless error” is hypothesized — would necessarily have resulted in the same judgment of conviction after a new trial was conducted. Cf. Nero v. Blackburn, 597 F.2d 991 (5th Cir. 1979) (ineffectiveness established by failure to make mistrial motion which would have automatically required reversal because of inadmissible “other crimes” evidence found “prejudicial” to defendant in instant trial.)