author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Rodney Daniel JUNIOR v. STATE.
    3 Div. 422.
    Court of Criminal Appeals of Alabama.
    Jan. 26, 1982.
    Rehearing Denied March 23, 1982.

      Benjamin E. Pool, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant guilty of robbery in the first degree. The court first fixed his punishment at imprisonment for thirty years but reduced it to twelve years.

The alleged victim, Dan Wilson, Jr., testified that on the night of December 15,1980, he was in an automobile with the defendant and four other young men in Montgomery. The gist of his testimony as to the alleged crime is found in the following part of his testimony:

“Q. Just tell this Jury what happened when y’all were riding around in the car after you went to the gas station.
“A. Well, after they left the gas station and got the gas, they rode around over by Alabama State and they dropped a man off, and after they dropped a man off, they came back towards Fairview, got on Fairview, turned down Goode, and drove up in the back of Lanier, and they started researching [sic] me again, taking off my boots—
“Q. Started what?
“A. Researching [sic] me again, taking off my boots, and made me got out of the car and with them having the gun on me I was begging them not to do anything to me, so, as soon as I got out I said, ‘Please, don’t hurt me,’ and the dude busted me in the face with a gun, and then he told me not to say nothing, so I didn’t say nothing. So, they searched me right there by the car, and in my watch pocket they found some more money on me, and then he hit me again and he walked me away from the car and one of them kicked a keg up under me and then after then, the next thing I know all of them was kicking me and hitting me and stomping me and stuff, and I balled up in a knot, and I stretched back out and they did the same thing. And then after then one of them picked me up by the hair and walked me about five or ten feet away from the car and threw me down in some bushes and put their feet in my face and said, ‘Bitch, you wouldn’t be able to tell nobody,” and after the gunshot, it made so much noise, I discovered I wasn’t unconscious, so they ran back to the car and I jumped up and ran to the first house I got to, and I saw the car coming again, so when I got to the man’s house I ducked down by a post on his porch, and after the car passed I was knocking and ringing the man’s doorbell real hard and he let me in and gave me a towel and let me call my father and mother and they came to pick me up and took me back home and called the paramedics.”

Inasmuch as there is no contention that the evidence in the case was not sufficient to support the verdict of the jury and we think there is no reasonable basis for such a contention, we see no occasion for any further recital of the evidence, except as it may pertain to issues presented by appellant, which we now consider.

One of the witnesses for the State was Jimmy Timmons, one of the persons in the automobile at the time of the alleged robbery. Appellant complains that the trial court erroneously permitted the witness to be asked questions as to previous statements made by the witness that were inconsistent with his testimony, with references to the following part of his testimony on direct examination:

“Q. Now, you say you don’t remember seeing Rodney Daniel Junior kicking and beating that fellow, Dan Wilson, Jr.?
“A. Not that I can remember.
“Q. I want to refresh your recollection here. Did you have an occasion to give a statement to the police in connection with this offense?
“A. Yes, sir.
“Q. Is that your signature, Jimmy Tim-mons?
“A. Yes, sir.
“Q. I will ask you here if you said on that occasion—
“MR. POOLE: Your Honor, we object to Counsel’s attempt to impeach his own witness. This is his witness.
“THE COURT: Let me hear from you, Mr. McKnight.
“MR. McKNIGHT: Well, Judge, I am surprised at his testimony. He had said before that this man did—
“THE COURT: All right, go ahead. Overrule the objection.
“MR. McKNIGHT: I just want to refresh his recollection.
“THE COURT: All right. Go ahead.
“Q. Mr. Timmons, I’ll ask you if on that occasion if you didn’t tell the police that Rodney and Jeff started kicking him and hitting him and all three of them were hitting and kicking him?
“A. Well, like I told my lawyer, I don’t remember what was on that statement. At the time I was intoxicated.
“Q. You were intoxicated?
“A. Yes, sir.”

Appellant does not challenge the right of a party to interrogate his own witness as to a previous statement by him inconsistent with his testimony, but he argues that he cannot do so by merely claiming “surprise.” He says that the questioner must be “genuinely surprised.” Without disagreeing with appellant on the point, we find no error in the quoted action of the court, as the circumstances, we think, are sufficient to show that the trial court was justified in concluding that counsel for the State was “genuinely surprised” by testimony of the witness that was inconsistent with the written statement previously made by the witness. The rule is thus stated by Judge McElroy:

“Ordinarily, a suggestion of counsel that he is surprised at the testimony of the witness called by him is a sufficient basis for the trial court’s allowing such counsel to elicit testimony from the witness of a prior inconsistent statement. However, if it clearly appears that counsel is not surprised, as would usually be true where the witness’ testimony on a former trial of the instant case was the same as his present testimony, it is error for the trial court to allow the party to elicit testimony from the witness that he made a statement inconsistent with his present testimony.”
Gamble, McEIroy’s Alabama Evidence, § 165.01(7)(c) (1977).

Another issue presented by appellant has as its target the following portion of the testimony of the same witness, Jimmy Timmons, on direct examination:

“Q. Well, anyway, on that occasion, you signed this statement, and it says right here Rodney, and that is the man seated here at the table, wasn’t it? That is the only Rodney in the car, wasn’t it?
“MR. POOLE: Your Honor, we object to him using the statement where no proper predicate has been laid for the use of that statement.
“THE COURT: Overrule the objection.”

Appellant relies upon and quotes the following statement in Gamble, McElroy’s Alabama Evidence, § 157.01(2) (1977):

“The basic reason for the requirement that the predicate question specified time, place, content of the supposed statement, and the person to whom made, is to enable the faculties of the mind of the witness to be put in motion and his memory aided by the train of ideas which such circumstances would be likely to suggest with reference to the subject matter under inquiry and thereby be aided in recalling to memory whether he made the statement; and, if he recalls making it, to give his explanation of the apparent conflict between his testimony and such prior statement.”

Immediately thereafter, in § 157.01(3), we find:

“The rule of this sub-section does not require perfect precision in the predicate questions with respect either to the content of the supposed statement, the time when, the place where, or the person to whom made. The rule is not ironclad and perfection is not required.”

We cannot agree with appellant’s contention as to the necessity for precision in the laying of a predicate for impeachment of a witness by showing that he previously made a statement in conflict with his testimony. The transcript shows that there was no effort on the part of the State to attempt to impeach the witness by showing by the testimony of someone other than the witness that he had previously made a statement inconsistent with his testimony; Judge McElroy in his quoted statement is not referring to an effort to refresh the recollection of “one’s own witness,” as in the instant case, but to the more usual situation when one is attempting to impeach a witness for the opposing party by showing a previous inconsistent statement made by the witness. There is not here involved any effort on the part of the State to furnish a predicate for the introduction in evidence of the testimony of a person other than the witness being interrogated at the time that such witness had previously made an inconsistent statement. Such testimony would have been inadmissible. Randolph v. State, 331 So.2d 766, cert. denied, 331 So.2d 771 (1976).

During the redirect examination of Dan Wilson, Jr., the alleged victim, a statement previously made by him was admitted in evidence over the objection of the defendant. Appellant urges such action of the court was erroneous, saying that the action authorized “the proponent of the witness to support his witnesses’ credibility by evidence that the witness has made a statement of the same tenor as his present testimony,” which, as he correctly contends, should not be allowed. Long v. Whit, 197 Ala. 271, 72 So. 529 (1916); Childs v. State, 55 Ala. 25 (1876). The transcript does not support the implication that the statement (a written statement of the witness) was offered in evidence to bolster the testimony of the witness. On the other hand, the transcript clearly shows that defendant’s cross-examination of the witness referred to several parts of the statement, and on redirect-examination, the following occurred:

“BY MR. McKNIGHT:
“Q. Dan, is this a copy of the statement that you signed on that occasion that Mr. Poole has been asking you about?
“A. Yes, sir, I think so.
“MR. McKNIGHT: Judge, we offer this in evidence at this time.
“THE COURT: All right.
“MR. POOLE: We object. It is clearly inadmissible. You cannot use a prior statement of a witness to bolster his testimony.
“THE COURT: All right. Normally, that is true, but when you have introduced part of it, I think it is admissible to introduce all of it.
“MR. McKNIGHT: May I show it to the jury please, Judge?
“THE COURT: All right.”

There is no contention that portions of the statement that were read in the presence of the jury were not so interwoven with non-contradictory parts of the statement as to make it impracticable to separate the one from the other. In this circumstance, there was no error in the admission of the statement as a whole. Byrd v. State, 51 Ala. App. 234, 283 So.2d 683 (1973).

During a recess after the conclusion of the testimony of Dan Wilson, Jr., counsel for defendant said:

“Judge, we move for a mistrial at this time on the grounds that in that statement of Dan Wilson, Jr., that was admitted into evidence over objection, it sets out the charges against Rodney Junior, as well as the co-defendants, assault, robbery, and kidnapping. It is our position that the jury is now allowed to know of the other charges against the defendant. He is being tried solely on the robbery charge. Now, they have been apprised of the additional charges of assault and kidnapping by Rodney Junior and I think that would unduly prejudice him in the eyes of the Jury.”

The court then said:

“Having heard the testimony of Mr. Wilson already, it is my conclusion based upon his testimony and your cross-examination of him that it is now admissible and that your motion is denied.”

As defendant’s counsel had been handling the statement during his lengthy cross-examination of the witness as to the contents of the statement, we think it was too late for him to raise the point made by him after the conclusion of the testimony of the witness. Moreover, the development did not warrant the grant of defendant’s motion for a mistrial, which was the only action invoked by the defendant. Appellant now says, “it certainly could have been a simple matter for the Court to instruct the District Attorney to blot out that portion of the statement so that the jury could not see it.” We do not disagree therewith. Perhaps the court would have done so if it had been so requested. It was not in error in denying defendant’s motion for a mistrial.

During the closing argument of counsel for the State, he said:

“If this kid is turned loose, he is going to be out on the street saying, well, gosh, we can rob a guy, and we can beat him up, and we can booze it up and we can be on dope, and we can go in Court and talk about it and all I have got to do is get me a good- lawyer — We’ll jump on the victim and we’ll jump on the police department, and they’ll turn me loose.—
“MR. POOLE: Your Honor, I hate to interrupt but that is the second reference that has been made to dope, that they were looking for dope, and I don’t think there was any evidence from the stand — the closing argument has to be based on reasonable inferences from the evidence and there was no evidence and that is the second mention of being on dope. There was no evidence that he was on dope.
“THE COURT: Well, first, I am going to overrule your objection and tell the jury that when the gentlemen stand up and argue the case to you they are arguing their case to you, and that is not evidence in the case. You heard the evidence as it was presented up here, and you draw the conclusions as to what the evidence was, and state to you that this is argument in the case and that is what Mr. McKnight is doing. I will permit that to be argument to the jury and not evidence.
“Continue, Mr. McKnight:”

Notwithstanding the ground of defendant’s objection to the effect that the argument as to “dope” was not based on any evidence in the case, we find that defendant testified that after the incident constituting the alleged crime, he and his companions other than Dan Wilson, Jr., “drunk a six pack of beer, smoked some reefers.” There were other references in the testimony as to the smoking of marijuana or reefers, including the testimony of Wayne Jeffrey Wilson who testified that he had pleaded guilty to robbery of Dan Wilson, Jr. on the occasion under consideration and thus concluded his testimony on direct examination by the State:

“Q. The reefer that was taken from Dan Wilson, was that what you went over to Willie Ben Alford’s house and smoked?
“A. Well, like we had some of our own, too.
“Q. Well, are you saying you smoked your own and didn’t smoke Dan Wilson’s?
“A. No, we smoked some of all of them.”

Although most of the testimony as to marijuana or dope seemed to relate to a time after the alleged robbery, such evidence, when considered together with the unquestionably weird behavior, of those concerned, furnished a basis of an inference that some of them, at least, were under the influence of dope. The court was not in error in overruling defendant’s objection to the argument.

At the conclusion of the redirect examination of Dan Wilson, Jr., the trial court proceeded to ask him some questions which obviously were intended to clarify whether there was sufficient light for the witness to testify as to what he said he had seen. There was no objection by defendant to any of such questions. It was not until after the witness had completed his testimony and after defendant had moved for a mistrial out of the presence of the jury that defendant complained of the court’s action in asking the witness Dan Wilson, Jr., the questions as to how well he could see on the occasion of the alleged crime. He did so by making such action of the court another ground for his motion for a mistrial. The court then said:

“Oh, I understand that. I didn’t think I was asking him any questions that they had asked. I frankly felt like it was to your man’s benefit by that question being made clear, because he had indicated that he was there, he had said he was there, and I wanted to know if he could see. Frankly, I felt like it was to your benefit. I just wanted to find out what he was saying. You know, sometimes he said he couldn’t and sometimes he could.”

The court further said:

“I hope the Jury is smart. I hope the Jury was trying to determine that he appeared to be confused about identifying people specifically as opposed to being able to see people, and that is what I was trying to elicit. That’s all. I mean, I am explaining it to you, not for the record, but explaining it to you what I was trying to bring out.”

One of the questions asked the witness by the court, “Did all five people in that car participate in the, when they began to hit you and that sort of thing?,” would probably have been subject to a valid objection by defendant, which appellant assigns now but did not assign on the trial, to the effect that it called for an unauthorized conclusion and testimony that would have been invasive of the province of the jury. To such a ground the attention of the court was never called by defendant. No reversible error is to be found in the action of the court in, or as to, the court’s interrogation of the witness Dan Wilson, Jr.

Much of the court’s oral charge to the jury was devoted to that part of the new Criminal Code of Alabama, Code of Alabama 1975, Tit. 13A, that deals with the criminal liability of an individual that is based upon the “behavior of another.” The court read § 13A-2-23, which provides:

“A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense:
“(1) He procures, induces or causes such other person to commit the offense; or
“(2) He aids or abets such person in committing the offense; or
“(3) Having a legal duty to prevent the commission of the offense, he fails to make an effort he is legally required to make.”

As the jury was about to retire, the following occurred:

“A JUROR: May I ask a question now, or do I do that later?
“THE COURT: Well, you can ask it now.
“A JUROR: I would like to have the statute defining aiding and abetting reread.
“THE COURT: All right, you all be seated.”

The court then re-read section 13A-2-23 and made some additional comments. Thereupon, out of the presence of the jury, counsel for defendant excepted “to the Court not charging the jury that one’s mere presence alone at the scene of where a crime is taking place, that is, mere presence alone, is not enough to convict.” Upon the resumption of the hearing in the presence of the jury, the following occurred:

“THE COURT: All right. What do we have?
“A JUROR: One of our jurors would like to [sic] section concerning aiding and abetting re-read again with the definition and she may have a question.
“THE COURT: All right, as long as it doesn’t pertain to any of the facts.
“A JUROR: No, sir, it would strictly be interpretation.
“MR. POOLE: Your Honor, could we have a meeting at Bench before you start?
“THE COURT: We will go to chambers.”

In the in camera hearing that followed, counsel for defendant said:

“Judge, in conjunction with your charge, I would again request that the Court instruct the Jury that mere presence alone at the scene of where a crime is taking place without any participation or encouragement or aiding, etc., is not a crime.”

The court then said:

“I won’t elaborate that much but I will say that mere presence alone, as I give that charge, I will make that phrase.”

There followed another hearing in the presence of the jury in which the court further charged the jury orally, which was concluded as follows:

“Is there another question?
“A JUROR: The question was on the having a legal duty [the language found in § 13A-2-23] — That sentence — fails to do—
“THE COURT: Well, you would have to determine from the law whether or not a defendant had that legal duty to stop the offense, and if he has that legal duty that he failed to make an effort he is legally required to make.
“So, you have three elements there than [sic] can be complicity. One, procures, induces, or causes such other person to commit the offense, or aids and abets, or having a legal duty to prevent the commission of the offense and fails to make an effort he is legally required to make. “You may retire.
“WHEREUPON the Jury retired at 12:02 P.M. to the Jury Room to continue their deliberations.)
“MR. POOLE: Your Honor, we must respectfully except because under the law Rodney Junior would absolutely have no legal duty to prevent the commission of the offense, and we would ask the Court to instruct that he has no legal duty.”

There was then a colloquy among the court and counsel for the respective parties, and the hearing in the presence of the jury was resumed. The court then supplemented its oral charge to the jury by charging, inter alia, that the jury “disregard” what it had been charged about one having the “legal duty” to prevent the commission of a crime. Promptly thereafter, the following occurred:

“THE COURT: Gentlemen?
“MR. POOLE: Satisfied, Your Honor.”

We are not in disagreement with the contention of appellant that the trial court should not have injected into its oral charge the provision of § 13A-2-23(3). The provision would be necessarily troublesome in a case in which it would be applicable. It was for a time unnecessarily troublesome in the instant case, in which it was not applicable. However, there is no validity in appellant’s present complaint as to it for the reason that its withdrawal from the consideration of the jury removed all harm and vexation that it caused and for the additional reason that defendant’s counsel expressed satisfaction at the action of the court in excising it from its oral charge.

The only other issue presented by appellant is as to whether defendant was accorded his right of allocution prior to the court’s imposition of the sentence. About three hours after the discharge of the jury in the case, a sentencing hearing was conducted at which defendant and his attorney appeared. At the conclusion thereof, the following was said:

“THE COURT: All right. Well, I’ve reviewed your pre-sentence report and I’ve reviewed your charge of burglary and I think you are guilty as the Jury thought you were guilty, but I try not to let them know it. I just listen to the evidence like they did. And taking into consideration that the man was shot and could have easily been killed, I sentence you to thirty years in the penitentiary — Have you got anything to say prior to the imposition of sentence?
“THE DEFENDANT: Well, I was going to ask you if I could have some sort of probation.
“THE COURT: Anything else?
“THE DEFENDANT: No, sir.
“THE COURT: I sentence you to thirty years in the penitentiary.”

The judgment proper contains the following:

“It is therefore considered and adjudged by the Court that the said defendant is guilty as charged in the indictment, and the said defendant being asked by the Court if he had anything to say why the sentence of the law should not now be pronounced upon him, says nothing in bar or preclusion of sentence. It is therefore considered and adjudged by the court and it is the judgment and sentence of the court that the said defendant be imprisoned in the penitentiary of the State of Alabama for a term of THIRTY YEARS.”

Appellant is correct in asserting that a judgment sentencing a defendant convicted of a felony without giving the defendant an opportunity to say why sentence should not be pronounced against him is erroneous and that on an appeal from such a judgment the appellate court should remand the case to the trial court for proper sentencing. Thomas v. State, 280 Ala. 109, 190 So.2d 542 (1966); Gaines v. State, 52 Ala.App. 29, 288 So.2d 810 (1973), cert. denied, 292 Ala. 720, 288 So.2d 813, cert. denied, 419 U.S. 851, 95 S.Ct. 92, 42 L.Ed.2d 82; Beaty v. State, 48 Ala.App. 699, 267 So.2d 490 (1972). However, the error of the court in first pronouncing the sentence was immediately erased by the court’s inquiry of the defendant as to whether he had “anything to say prior to the imposition of sentence,” the defendant’s response to the question and the action thereafter pronouncing the sentence. Not only was defendant given an adequate opportunity to say anything he desired to say before sentence was finally pronounced, but also the transcript shows that there was a hearing about two weeks after he was sentenced to the penitentiary for thirty years, attended by defendant and his counsel, at which the sentence was reduced from thirty years to twelve years.

Another sentencing procedure would be supererogatory. The judgment of conviction and sentence should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    Frances A. HOLLINGSWORTH, alias v. STATE.
    8 Div. 570.
    Court of Criminal Appeals of Alabama.
    March 2, 1982.
    Rehearing Denied March 23, 1982.

      Dave Beuoy, Russellville, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was convicted under an indictment charging her with criminal conspiracy as defined by Code of Alabama 1975, § 13A-4-3(a), which provides:

“A person is guilty of criminal conspiracy if, with the intent that conduct constituting an offense be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one or more of such persons does an overt act to effect an objective of the agreement.”

The indictment alleged that appellant “did agree with Chris Sargent and Mack Winchester to commit the crime of Robbery in the First Degree, in violation of Section 13A-8-41” and further charged, inter alia, that “said Mack Winchester did, in the course of committing a theft ... used force against the person of Franklin D. Franks with intent to overcome his physical resistance or physical power of resistance ... while the said Mack Winchester was armed with a deadly weapon, to-wit: a pistol.”

According to the undisputed evidence, the conduct constituting the basis for the alleged crime occurred on the night of December 15-16, 1980. According to the record, the indictment was returned on April 24, 1981, and on April 30, 1981, the appellant with her attorney appeared before the court and presented a written application alleging that at the time of the commission of the alleged crime she was a minor and praying that the court “investigate and determine” that defendant “be tried as a youthful offender.” The action of the court as to the application is reflected by the following judgment entry:

“On the 30th day of April, 1981, comes the State of Alabama by its District Attorney, Hon. John Jolly, also comes the defendant Frances A. Hollingsworth, alias Ann Hollingsworth, in her own proper person and in the presence of her attorney, Hon. Dave Beuoy, and after talking with the defendant, the defendant files a petition to be treated as a Youthful Offender. Hearing is set for May 21, 1981.
“On the 21st day of May, 1981, comes the State of Alabama by its District Attorney, Hon. John Jolly, also comes the defendant Frances A. Hollingsworth, alias Ann Hollingsworth, in her own proper person and in the presence of her attorney, Hon. Dave Beuoy, and it appearing to the court that on a former day of this court, the defendant, Frances A. Holl-ingsworth, alias Ann Hollingsworth, requested that she be considered under the Youthful Offender Act, and the cause was continued for investigation; and this day the defendant now in open Court with her attorney is hereby not accepted under the Youthful Offender Act, and her case is set for Tuesday, May 26, 1981.”

Although we find that the record is not as comprehensive and clear as it could well have been that the trial court “investigated and examined” the defendant “to determine whether .he [she] should be tried as a youthful offender,” it reasonably follows, we think, from what we have just stated, that such an investigation and examination was conducted by the court. Much has been said on the point, but we think the following suffices:

“. .. All that is required of the trial court, assuming the defendant consents, is such investigation and examination of the defendant as is sufficient to enable the judge to make an intelligent determination of whether, in his discretion, the defendant is eligible to be treated as a youthful offender, rather than being tried, and if found guilty, sentenced in the normal criminal process.” Clemmons v. State, 294 Ala. 746, 749, 321 So.2d 238 (1975).

The record shows conclusively that the defendant appeared before the court both on the day that the application was filed and on the day the court announced its ruling on the application. Apparently no court reporter was called by either party to report any colloquy in open court. Unquestionably, the court had the opportunity to weigh the various factors that would ordinarily be considered in determining whether the relief prayed for should be granted, including the nature and relative seriousness of the crime charged, the criminal record, if any, of the defendant and the age and apparent intelligence of the defendant. Influential perhaps, but not conclusive, is the fact that, according to the application, at the time of the commission of .the alleged crime she lacked only one month and three weeks in reaching her majority. The trial court is not properly chargeable with reversible error in not granting appellant’s application for youthful offender treatment.

Chris Sargeant, one of the alleged conspirators, was. called as a witness for the State. During the early part of his testimony, the following occurred:

“Q. Tell the Jury now, what happened when you got in the bathroom.
“MR. BEUOY: We object at this point, we understand this gentleman’ has been indicted as a co-defendant in this case and what we’ve got is uncorroborated testimony of a co-defendant. None of that.
“THE COURT: Overruled.
“MR. BEUOY: We accept [sic, probably ‘except,’ a possible mistake of the court reporter, a mistake found too often in transcripts]. Judge, does this gentleman’s attorney know he is testifying here today?
“(OFF THE RECORD DISCUSSION)
“Q. Go ahead and answer the question.
“A. Ann [defendant] came in and she said that we were going to rob Dee [the alleged victim].
“MR. BEUOY: We object to this again, this is the testimony of a co-conspirator and co-defendant, which is uncorroborated and we move to strike it and move for a mistrial.
“THE COURT: I’m going to overrule.
“MR. BEUOY: Is that a ruling on our mistrial motion, also?
“THE COURT: Yes.
“MR. BEUOY: We accept [sic] to all the rulings.”

Appellant cites Peoples v. State, 56 Ala.App. 290, 321 So.2d 257 (1975), in support of a contention that the admission of the testimony of an accomplice over an objection by defendant constitutes a violation of Code of Alabama 1975 § 12-21-222, which provides that a conviction of a felony cannot be obtained on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. Peoples v. State, supra, is not to be extended beyond what was held therein, which was that the denial by the trial court of defendant’s motion to exclude the evidence as a whole, interposed at the conclusion of the State’s case, constituted reversible error for the reason that the testimony of an accomplice had not been corroborated. Neither Peoples, supra, nor § 12-21-222, Code of Alabama 1975, states or implies that an accomplice should not be allowed to testify against defendant unless and until the corroborative evidence required has been introduced and admitted. Closer scrutiny is required of the following statement, relied upon by appellant, as found in Morton v. State, Ala.Cr.App., 338 So.2d 423, 425 (1975), cert. denied, 338 So.2d 428:

“. .. It is well settled that before a co-conspirator’s testimony may be admitted, there must be prima facie grounds for believing in the existence of the conspiracy. Collins v. State, 137 Ala. 50, 34 So. 403 (1903); Cox v. State, 240 Ala. 368, 199 So. 806 (1941); Langham v. State, 243 Ala. 564, 11 So.2d 131 (1943); DeBardeleben v. State, 16 Ala.App. 367, 77 So. 979, cert. denied, 201 Ala. 523, 78 So. 877 (1918). ...”

A careful examination of Morton v. State, supra, and the cases cited in the foregoing excerpt from Morton, discloses a probable deviation from the exact language and thought of the author of the opinion in the words “a co-conspirator’s testimony” instead of “testimony as to a co-conspirator’s statement.” As shown by the authorities cited in support of the quoted portion of the opinion in Morton, supra, the language thereof should be considered as thus suggested. The trial court was not in error in overruling defendant’s objection, motion to strike and motion for a mistrial as directed to the testimony of Chris Sargeant.

Appellant’s only other insistence on reversible error is that the court erroneously overruled defendant’s motion to suppress the written incriminatory extrajudicial statement signed by defendant several hours after she had been taken into custody. Two police officers and the defendant testified on the hearing of the motion. Investigator Robert Pace of the Russellville Police Department testified that the defendant was “advised of her constitutional rights” which were read to her “from a waiver form” which she executed and is an exhibit in the case, by which she acknowledged:

“I have read this statement of my rights and understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.”

Officer Pace testified:

“Q. At that time, or before taking any statement from the defendant, did you make any promises of any kind to her to get her to make a statement to you?
“A. No sir, I did not.
“Q. Did you tell her it would be better for her, if she talked to you about the case or it might be worse if she did not talk to you?
“A. No sir, I did not.
“Q. Did you or anybody else in her hearing, offer any kind of inducement or reward of any kind in order to get her to make a statement?
“A. Not as I know of.”

In the argument as to the admissibility of the extrajudicial statement, appellant emphasizes the testimony of the defendant to the effect that she was “very drunk” when taken into police custody, that she had a hangover and that she “felt bad and was sleepy.” As to defendant’s apparent physical and mental condition soon after she was brought to jail, Officer Danny Price testified:

“Q. Did you see and observe her, oh that occasion, what her condition was?
“A. Yes sir.
“Q. I’m talking about when she got to the City Hall?
“A. Yes sir.
“Q. Was she conscious?
“A. Yes sir.
“Q. Was she intoxicated?
“A. She had been drinking, but intoxicated, I would say no.
“Q. Did you have a conversation with her?
“A. Yes sir.
“Q. Did she appear to understand what you said to her?
“A. Yes sir.”

As to the condition of defendant at the time she made and signed the extrajudicial incul-patory statement that was admitted in evidence, Officer Pace testified:

“Q. Can you describe the defendant’s condition to the Court, at the time of the interview?
“A. Yes sir.
“Q. Just tell the Court about that?
“A. Okay. She seemed to be alert. She had been drinking, but she wasn’t intoxicated. She seemed to know exactly what she was telling me.
“Q. She was conscious of everything?
“A. Yes sir.”

The court was not in error in admitting defendant’s statement in evidence.

There is no error in the record prejudicial to defendant. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby

AFFIRMED.

HARRIS, P. J., and TYSON, DeCARLO and BOWEN, JJ., concur.


author: ADKINS, Justice.

text:
    David WEED and Brenda Weed, Petitioners, v. STATE of Florida, Respondent.
    No. 57516.
    Supreme Court of Florida.
    March 11, 1982.
    Leo A. Thomas of Levin, Warfield, Mid-dlebrooks, Mabie & Magie, Pensacola, for petitioners.
    Jim Smith, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for respondent.
   ADKINS, Justice.

This is a petition for writ of certiorari seeking review of a decision by the District Court of Appeal, First District, reported as State v. Weed, 373 So.2d 42 (Fla. 1st DCA 1979), which conflicts with Robinson v. Lasher, 368 So.2d 83 (Fla. 4th DCA 1979); State v. Thaddies, 364 So.2d 819 (Fla. 4th DCA 1978); State ex rel. Smith v. Nesbitt, 355 So.2d 202 (Fla.3d DCA 1978); State ex rel. Williams v. Cowart, 281 So.2d 527 (Fla.3d DCA 1973), and Wilcox v. State, 248 So .2d 692 (Fla. 4th DCA 1971). We have jurisdiction, Article V, Section 3(b)(3), Florida Constitution.

Once again, we are confronted with an application of Rule 3.191, Rules of Criminal Procedure, the speedy trial rule. Petitioners were arrested on August 18, 1977, and charged by information on September 15, 1977, with separate counts of possession of marijuana and possession of hashish contrary to section 893.13(l)(e), Florida Statutes (1977). Trial on December 28-29,1977, resulted in a mistrial when the jury could not reach a unanimous verdict. Subsequently, the state moved to amend the marijuana count in order to allege that petitioners possessed more than five grams, the amount necessary to constitute a felony. On February 10, 1978, the trial court allowed the amendment over petitioner’s objections. On February 24, 1978, the court granted petitioners’ motion to discharge the newly-amended marijuana count under the speedy trial rule, ruling that the amendment of the information to charge possession of more than five grams was a new and different charge based on the same conduct or criminal episode and was therefore subject to the 180 day time period in Rule 3.191(a)(1). Subsequently, the state sought to amend the count to reinstate the misdemeanor. The court rejected the amendment on the ground that the original charge had been abandoned by the earlier amendment and further found that defendants had been available for trial and no exceptional circumstances existed.

Upon appeal, the district court reversed and remanded, holding that the state was entitled under the provisions of Rule 3.191(g), Florida Rules of Criminal Procedure, to 90 days from the date of mistrial, notwithstanding the fact that the charge was amended from a misdemeanor to a felony. The court reasoned that the speedy trial rule prohibits neither amendments nor enhanced charges and that once charges are amended, the amended charges are subject to the same speedy trial time periods as apply to the original charges. More specifically, it was noted that subsection (g) does not exclude amended charges from the 90 day period allowed following mistrial.

Rule 3.191(g) reads as follows:

(g) Effect of Mistrial; Appeal; Order of New Trial. A person who is to be tried again or whose trial has been delayed by an appeal by the State or the defendant shall be brought to trial within 90 days from the date of declaration of a mistrial by the trial court, the date of an order by the trial court granting a new trial, the date of an order by the trial court granting a motion in arrest of judgment, or the date of receipt by the trial court of a mandate, order, or notice of whatever form from an appellate or other reviewing court which makes possible a new trial for the defendant, whichever is last in time.

In his dissent, Judge Robert Smith construed the words “to be tried again” in Rule 3.191(g) as limited to retrial of the same charges on which the accused was previously tried, or to lesser and included charges, or charges of attempt to commit those offenses, but not to increased amended charges.

Thus, the main issue confronting this Court is whether the state should be given the benefit of the 90 days allowed by Rule 3.191(g) on the amended charge. In addition, we find it necessary to answer a second question not resolved by the district court since that court’s resolution of the first question made consideration of it unnecessary. That question is whether the trial court’s denial of the state’s motion to reinstate the charge as a misdemeanor was correct.

We hold that Rule 3.191(g) is not applicable to an information which has been amended to increase a charge from a misdemeanor to a felony after a mistrial on the misdemeanor. To reach this conclusion, we must determine the precise meaning of the language “to be tried again”. Obviously, this rule contemplated that the normal retrial would involve the same charge that was the subject of the proceeding which resulted in the mistrial, thereby necessitating less time for trial preparation and a shorter than normal speedy trial time period. Inherent in such a time limit reduction is a concomitant restriction on the nature of changes which can be made in the essential elements of the charge. In this regard, it is difficult to imagine a greater change than an increase in a charge from a misdemeanor to a felony. A person is not being “tried again” for a misdemeanor when he is charged with a felony.

An analysis of similar cases is useful in assisting us to reach this conclusion. In Thaddies, the court held that when a charge is dropped and another is filed based on the same incident, the date of the arrest is the relevant date for speedy trial purposes. In Nesbitt, the fact that the charge was changed from a felony to a misdemeanor and then back to a felony did not alter the running of the speedy trial period from the original arrest date. See also Gue v. State, 297 So.2d 135 (Fla. 2d DCA 1974). In Cowart, there was a mistrial, after which charges were amended. After the expiration of the 90 days under Rule 3.191(g), the state attempted to nolle prosequi one charge. The court held the speedy trial time limit had run since the trial had not commenced within the 90 days. The court went on to add that the fact that the state entered a nolle prosequi did not operate to deprive the accused of his right to a speedy trial given the language in Rule 3.191(h)(2) which provides that the time cannot be extended by the filing of new charges based on the same criminal episode.

These cases stand for a basic proposition that is central to this case, that is, the date of the original arrest is the focal point for speedy trial considerations, irrespective of changes made in charges. Only in specifically delineated circumstances can the time periods be adjusted.

In the case sub judiee, the state apparently made an error in the charging information by omitting a necessary element for the charge of felony possession of marijuana. After the mistrial the state attempted to amend the information to include all the elements of the felony. The trial court correctly analyzed applicable precedent, e.g., North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and properly allowed the amendment since the state had justified the harsher treatment in a way which negated the possibility of vindictiveness. However, despite what the state may have believed concerning the availability of the additional 90 days under Rule 3.191(g), the court order did not have the effect of extending the speedy trial period.

In the district court’s opinion reversing this order much is made of the fact that the speedy trial rule does not prohibit amendments nor proscribe enhanced charges. While silence on this matter may be interpreted by some as license for unlimited amendments, the correct interpretation is that the rule does not grant the state total freedom to amend charges without having an effect on speedy trial time periods. The district court reasoned that if amendments are generally permissible under the speedy trial rule, they should stand in the place of the original charge for all purposes including the entitlement to the 90 days provided in Rule 3.191(g). We cannot go this far. Issues concerning amendments and the speedy trial rule are separate and distinct. An order allowing an amendment does not necessarily grant the amended charge the same status in relation to the speedy trial time period as the original charge.

The issue we must now discuss is whether that trial court was correct in its action rejecting the state’s motion to reinstate the misdemeanor. We hold that the court was correct, given the explicit language of Rule 3.191(h)(1), which states:

(h)(1). Discharge from Crime; Effect. Discharge from a crime under this Rule shall operate to bar prosecution of the crime charged and of all other crimes upon which trial has not commenced nor conviction obtained nor adjudication withheld and which were or might have been charged as a result of the same conduct or criminal episode as a lesser degree or lesser included offense.

Accordingly, we quash the decision of the district court and remand with instructions to affirm the judgment of the trial court.

SUNDBERG, C. J., and BOYD, OVER-TON and McDONALD, JJ., concur.

ALDERMAN, J., dissents.


author: PER CURIAM.

text:
    Paul William SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 58588.
    Supreme Court of Florida.
    March 11, 1982.

      Robert M. Leen of Leen & Schneider, Hollywood, for appellant.
    Jim Smith, Atty. Gen. and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
    Nathan Z. Dershowitz and Victoria B. Eiger, New York City, for the American Jewish Congress, amicus curiae.
   PER CURIAM.

Paul William Scott appeals his conviction for the first-degree bludgeoning murder of James Alessi and his sentence of death. Having reviewed the record and considered the issues presented by Scott, we find no reversible error and affirm his conviction and sentence.

On the evening of the murder, Scott and his coperpetrator, Richard Kondian, told Charles Soutullo of their plan to rob and to kill Alessi and asked him to join them. Soutullo declined the invitation. Later that evening, Alessi picked up Scott and Kondi-an. At approximately 11 p. m. they arrived at Alessi’s father’s home where the victim borrowed his father’s station wagon and obtained a patio umbrella from his father. They then drove off in the victim’s car and in his father’s car. The patio umbrella was later found in the victim’s backyard.

The next morning the victim’s nude body, which was covered with blood, was discovered in his home. His hands and feet were tightly bound with electrical cord and telephone wire. He had been brutally beaten about his head, chest, and arms. He had sustained six blows to the head with a blunt instrument, one of which was so severe that it had caused a compressed fracture of the skull. The head injuries were the cause of his death. There were many signs of a violent struggle by the victim in his attempt to get away from his assailants. Throughout the house were broken articles and bloodstains on the walls, furniture, curtains, and floors. Scott’s fingerprints were found on various items throughout the victim’s home, including the neck of a broken vase and the bloodstained knife on the sofa which apparently had been used to cut the electrical cords used to tie the victim.

After bludgeoning the victim to death, Scott and Kondian rummaged through the house. The same night as the murder and as a part of their intended scheme to rob and to kill Alessi, they went to the victim’s flower shop with a key and took most of the gold in the shop. They also took the victim’s car. Scott was found a month later in Sacramento, California. He had in his possession various items of jewelry, including a golden bear charm. The victim wore a golden bear charm, and there was one in his shop the day he was killed.

Although Scott was indicted for the premeditated beating death of Alessi, the State, in addition to proceeding on the theory of premeditated murder, also sought to prove felony murder.

Scott challenges his conviction of first-degree murder on several grounds, none of which we find to be meritorious. Initially, he argues that the evidence presented by the State was not sufficient to prove him guilty beyond a reasonable doubt and that the evidence does not exclude a reasonable hypothesis of innocence. We disagree and hold there is substantial, competent evidence in the record to sustain Scott’s conviction. Scott and Kondian made a definite statement preceding the murder of their plans to rob and to kill Alessi. The victim’s father identified Scott as one of the two men who had been with his son late on the evening of his death. The patio umbrella they had picked up was found the next morning at the victim’s home, evidencing that the three had gone there later that evening. Scott’s fingerprints were found throughout the house in places reasonably consistent only with the conclusion that he had committed the homicide. Items of gold jewelry were found in Scott’s motel room in Sacramento, California, including a golden bear charm like the one that was taken from the victim's shop the day of his murder. Also, a gold bracelet like the one taken from the victim’s shop was found in the possession of Kondian’s girl-friend. Viewing all the evidence, presented at trial, we conclude that the evidence is inconsistent with any reasonable hypothesis of innocence. See Thomas v. State, 374 So.2d 508 (Fla.1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980).

Scott also contends that the evidence does not support a finding of premeditation nor does it prove robbery or burglary. The manner in which the victim was murdered in itself evidences premeditation. There was a long bloody chase throughout the house, the victim was badly beaten, his hands and feet were tied while he was still alive, and he was struck on the head six times with a blunt instrument. The evidence was clearly sufficient to establish premeditation. See Mines v. State, 390 So.2d 332 (Fla.1980), cert. denied, 451 U.S. 916, 101 S.Ct. 1994, 68 L.Ed.2d 308 (1981). We likewise reject Scott’s contention regarding lack of proof of the robbery and burglary.

Scott also argues that the court committed reversible error when it sustained the State’s objection on the basis of irrelevance to the question asked of the State’s witness Soutullo by defense counsel on cross-examination. Defense counsel asked Soutullo what he was doing for a living in Fort Lauderdale. After the State objected, the court asked defense what was the relevancy of the question, and defense answered, “Just where he lived, what he did for a living.” Defense did not assert that this question went to impeachment. We find no reversible error committed by the trial court in sustaining the State’s objection.

Likewise, we hold that the trial court did not commit reversible error in admitting into evidence a gold bracelet like the one taken from the victim’s store. This gold bracelet had been taken from Kondi-an’s girl-friend.

Scott further contends that the court reversibly erred in instructing the jury on felony murder. We disagree and find that there is sufficient evidence in the record to support the felony murder instructions given by the trial court.

Scott joined in the issue presented and briefed by amicus, American Jewish Congress. Amicus contends that the jury selection on Yom Kippur violated defendant’s right to a representative jury. Ami-cus concedes that no records were kept which would indicate the numbers of persons asked to be excused, or who were excused, because of the Jewish holiday. There is no evidence in this case demonstrating deliberate or systematic exclusion of members of the Jewish faith and no evidence of underrepresentation on the jury panel in this case. Amicus has failed to make a prima facie showing that Scott was systematically denied a jury representative of a cross section of the community. Furthermore, we hold that the trial court did not abuse its discretion in denying Scott’s motion for continuance.

In addition to reviewing the record in light of the alleged errors asserted by Scott which are without merit, we have reviewed the evidence pursuant to Florida Rule of Appellate Procedure 9.140(f), and we conclude that no new trial is required. Accordingly, we affirm the conviction for murder in the first degree.

Scott also challenges his sentence of death which was imposed by the court after the jury had recommended the death penalty. The trial court found four aggravating circumstances: (1) Defendant was under sentence of imprisonment — parole—when he committed the murder. (2) He was previously convicted of a felony involving violence to the person — second-degree murder. (3) The murder was committed while he was engaged or was an accomplice in the commission of, or the attempt to commit, a robbery and/or burglary and was committed for pecuniary gain. This was counted as one aggravating circumstance. (4) The murder was cruel. As to the cruelty of the offense, the court stated:

(h) The capital felony was cruel. A picture is worth a thousand words and all one must do to justify this aggravating circumstance is to view the color photographs of the interior of the house where the homicide occurred and conclude with the body of the victim with his hands and feet tied. This is not one or two blows which resulted in instantaneous or near instantaneous death. The struggle between the assailants and the victim moved from room to room; blood is everywhere. The doctor testified the victim was still alive when his hands and feet were bound. There remained no reason to pursue the beating to accomplish the thefts. The subsequent blows to the head were fatal and the entire episode can only reflect there being imposed upon the victim a high degree of pain with little indifference to, or even the enjoyment of the suffering of the victim. It was pitiless and totally unnecessary to achieve the theft of the property. See State v. Dixon, 283 So.2d 1 (Fla.1973).

The court found none of the statutory mitigating factors to exist, but in considering nonstatutory mitigating evidence, found:

The defendant is the product of a broken home; raised in a ghetto area and in poverty. His father, a retired career Navy man visited with the defendant in September of 1965 and promised to take his son from the filth in which he was being reared. After raising the young boy’s hopes, without reason, cause or justification, his father walked away, leaving him emotionally devastated.

We reject Scott’s contention that the court erred in excusing, for cause, jurors who unequivocally stated that they would not recommend the death penalty under any circumstances. Downs v. State, 386 So.2d 788 (Fla.), cert. denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed.2d 238 (1980); Witt v. State, 342 So.2d 497 (Fla.), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977).

We find no merit to Scott’s claims that the court erred in finding that the capital felony of which the defendant was found guilty was committed while he was engaged or was an accomplice in the commission of, or an attempt to commit, robbery and/or burglary and was committed for pecuniary gain and in finding that the murder was cruel. These findings are supported by the record and are entirely appropriate in the present case. His assertion that the court reversibly erred in not allowing a journalist opposed to the death penalty to testify during the sentencing phase that Scott should be in prison and his other challenges to the imposition of the death penalty are without merit.

Scott’s attack on the constitutionality of Florida’s death penalty statute have been previously rejected by this Court and the Supreme Court of the United States. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Songer v. State, 365 So.2d 696 (Fla.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979); McCaskill v. State, 344 So.2d 1276 (Fla.1977); Chambers v. State, 339 So.2d 204 (Fla.1976).

Having found no reversible error, we affirm Scott’s conviction for murder in the first degree and his sentence of death. It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, ALDERMAN and McDONALD, JJ., concur.

OVERTON, J., concurs in result only.


text:
    THE FLORIDA BAR. In re Raymond SEIDLER.
    No. 60474.
    Supreme Court of Florida.
    March 11, 1982.
    Jeffrey S. Weiner of Weiner, Robbins, Tunkey & Ross, Miami, for petitioner.
   PER CURIAM.

Raymond Seidler, having previously been suspended from the practice of law, has petitioned for reinstatement under Florida Bar Integration Rule 11.11. A hearing has been conducted by a referee appointed by this Court to make findings and recommendations to this Court. The referee has completed the hearing, finds that the petitioner is competent to resume practice, and recommends his reinstatement as a member of the Florida Bar with the attendant right to practice law.

We have reviewed the record and approve the report and recommendation of the referee. Upon the payment of the costs incurred in this proceeding, the petition of Raymond Seidler is granted, and he is reinstated as a member of the Florida Bar with the right to practice law.

It is so ordered.

ADKINS, Acting C. J., and BOYD, OVERTON, McDONALD and EHRLICH, JJ., concur.


text:
    STATE of Florida, ex rel., Alvin MILLER, Petitioner, v. Honorable Maynard SWANSON, As Circuit Judge of the Sixth Judicial Circuit, Respondent.
    No. 81-810.
    District Court of Appeal of Florida, Second District.
    Aug. 5, 1981.

      Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo and Eula Tuttle Mason, Asst. Public Defenders, St. Petersburg, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for respondent.
   ON MOTION FOR REHEARING

PER CURIAM.

In this original proceeding we decline to issue a writ of prohibition because we find no merit in petitioner’s claim of a violation of his double jeopardy rights.

Petitioner was charged with first degree murder. The prosecutor and defense counsel entered into an agreement with the specific understanding that petitioner would receive a life sentence in exchange for a plea of guilty to a reduced charge of second degree murder. Petitioner entered a plea of guilty to second degree murder and the plea was accepted by the court. At the subsequent sentencing hearing a prosecutor other than the prosecutor with whom defense counsel had made the plea agreement was present. Petitioner was sentenced to a term of thirty years’ imprisonment. Neither the prosecutor present nor defense counsel objected or notified the trial judge of the prior negotiated agreement for a life sentence. The state subsequently filed a motion to correct sentence which was granted by the court to the extent that petitioner’s judgment and sentence were vacated. Petitioner was then given a choice: Be resentenced and receive the agreed-to life sentence on the original plea or withdraw the plea and stand trial on the first degree murder charge. Petitioner refused to accept either choice, whereupon the court vacated the plea.

Petitioner brought this petition for a writ of prohibition and a response and reply to response were filed in this court. On May 14, 1981, this court entered an order denying the petition. Thereafter, petitioner filed a motion for rehearing citing for the first time this court’s decision in Katz v. State, 335 So.2d 608 (Fla. 2d DCA 1976). Although we think that Katz is not controlling, petitioner’s argument merits discussion.

In Katz, the appellant entered a plea of guilty to auto theft and, after a sentencing hearing, he was given a sentence of six months to two years. Later the trial judge learned that the appellant and his wife had lied at the sentencing hearing to induce the judge into giving the appellant a light sentence. The trial judge then increased Katz’s sentence. This court, citing Troupe v. Rowe, 283 So.2d 857 (Fla.1973), held that such an increase in the sentence was invalid under the prohibition against double jeopardy. In Troupe, the trial judge withdrew a sentence already imposed after reconsidering a state objection to portions of the sentence. The trial judge had previously considered those objections and had agreed with the defendant’s position when he entered the first sentence. In essence, the trial judge simply changed his mind. The Florida Supreme Court held that the trial judge was without authority to increase the sentence.

Thus, in Troupe the trial judge changed his mind because he considered the state’s original objection, and in Katz the trial judge changed his mind because of new evidence. In neither of these cases was there a failure to carry out a part of the original plea agreement. In contrast, the case before us involves the imposition of a sentence directly contrary to the negotiated plea agreement.

We find this case more closely akin to Brown v. State, 367 So.2d 616 (Fla.1979). In that case the appellant pled guilty to second degree murder on condition that he testify against a codefendant. Appellant later refused to so testify. The trial judge vacated the plea and defendant was forced to go to trial. He was convicted of first degree murder. Our supreme court recognized that jeopardy had attached after acceptance of the guilty plea but held that the double jeopardy clause does not bar reprose-cution of an accused who willfully refuses to perform a condition of the guilty plea. Here, the condition of the guilty plea was different (a specified sentence rather than a requirement to testify). There is no doubt that the life sentence in exchange for the reduced charge comprised the warp and woof of the agreement struck by the petitioner and the state. In this case defendant’s argument to the trial court for a lesser sentence than that for which he specifically agreed, and his failure to disclose the bargain to the trial court is comparable to the defendant’s failure to testify in Brown. In both cases defendant attempted to renege on the plea bargain by backing out of one of the specific conditions on which his agreement with the state was fashioned.

Petitioner was contractually bound to the life sentence (without a minimum mandatory twenty-five years) once the state lived up to its end of the bargain by reducing the charge from first to second degree murder. At that point the state forfeited the possibility of capital punishment or the minimum mandatory twenty-five year sentence required to be served when a life sentence is imposed upon a conviction of first degree murder. The declared policy of this state is to encourage plea negotiations and agreements. Fla.R.Crim.P. 3.171(a). Numerous cases have held that a defendant may withdraw his plea where the facts establish that the prosecution has violated the terms and conditions of a plea agreement. We think that works both ways if the declared policy of rule 3.171(a) is to be effective. Otherwise, the state would be hesitant to enter into plea agreements with an accused if the state were subject to losing the benefit of the bargain. Our supreme court has noted that a bargained guilty plea is in large part similar to a contract between society and the accused, entered into on the basis of a perceived “mutuality of advantage.” Brown v. State, 367 So.2d at 622. That was surely the case here.

We hold that, although jeopardy attached when the trial court accepted petitioner’s guilty plea, that fact does not bar petitioner’s reprosecution. Accordingly, we adhere to our decision 404 So.2d 876, and deny the motion for rehearing.

BOARDMAN, A. C. J., and GRIMES and DANAHY, JJ., concur.


text:
    William Spencer MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 81-468.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1981.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We must once again reverse and remand a trial court’s order assessing costs against an appellant who was adjudicated to be insolvent. Cox v. State, 334 So.2d 568 (Fla.1976); Brown v. State, 400 So.2d 510 (Fla.2d DCA 1981); McPherson v. State, 376 So.2d 898 (Fla.2d DCA 1979); Donaldson v. State, 364 So.2d 512 (Fla.2d DCA 1978).

We otherwise affirm the appellant’s probation revocation.

BOARDMAN, Acting C. J., and RYDER and DANAHY, JJ., concur.


text:
    Dwight L. PUGH, Petitioner, v. FLORIDA SOUTHERN COLLEGE, Respondent.
    No. 81-945.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1981.
    Robert E. Puterbaugh of Peterson, Myers, Craig, Crews, Brandon & Mann, P. A., Lakeland, for petitioner.
    Ernest M. Jones, Jr. of Jacobs, Valentine, Groseclose & Miller, P. A., Lakeland, for respondent.
   PER CURIAM.

Certiorari denied.

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


text:
    Charles D. REED, Appellant, v. STATE of Florida, Appellee.
    No. 81-1432.
    District Court of Appeal of Florida, Second District.
    Sept. 25, 1981.
   PER CURIAM.

Affirmed. Tobin v. State, 401 So.2d 938 (Fla. 1st DCA 1981).

BOARDMAN, Acting C.J., and RYDER and DANAHY, JJ., concur.


text:
    Jeffery A. SUGGS, Appellant, v. STATE of Florida, Appellee.
    No. 81-429.
    District Court of Appeal of Florida, Second District.
    Sept. 30, 1981.
    Jerry Hill, Public Defender, Bartow and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Dismissed. Counts v. State, 376 So.2d 59 (Fla.2d DCA 1979).

SCHEB, C. J., and DANAHY and CAMPBELL, JJ., concur.


text:
    Robert Lee McCRAY, Appellant, v. STATE of Florida, Appellee.
    Nos. 80-2028, 80-2029 and 80-2069.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1981.
    Jerry Hill, Public Defender, Bartow, and Samuel Robert Mandelbaum, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen. Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant appeals from the order of revocation of probation and judgment and sentences of the Hillsborough County Circuit Court.

Appellant was sentenced in accordance with the plea negotiations, as follows:

1. For failure to deliver a hired vehicle — five years imprisonment (with credit for time served), to be suspended after four years.
2. For the worthless check charge — four years probation to run consecutively with No. 1 above.
3. For the misdemeanor battery — one year imprisonment, to run concurrently with No. 1 above.

Appellant now challenges his sentence as illegal in the light of Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981).

We agree that Villery does control and therefore reverse and remand this case for correction of the sentence in accord with Villery.

In correcting this sentence, the trial court should consider our opinion in Lewis v. State, 402 So.2d 480 (Fla.2d DCA, 1981).

SCHEB, C. J., and DANAHY and CAMPBELL, JJ., concur.


text:
    FEATHERSOUND, INC., a Florida Corporation, Petitioner, v. Lee WILLIAMS and Comprehensive Mental Health Services, Respondents.
    No. 81-1136.
    District Court of Appeal of Florida, Second District.
    Oct. 28, 1981.
    W. Robert Mann and J. Alden Weiehel of Mann & Fay, Bradenton, for petitioner.
    Alan D. Bennett, Law Offices of William Randolph Klein, Sarasota, for respondents.
   PER CURIAM.

It appearing that the issues raised by the petition for certiorari are moot for the reason that the subpoenaed records have now been furnished by the respondents, certiora-ri is hereby denied.

OTT, A. C. J., and CAMPBELL and SCHOONOVER, JJ., concur.


text:
    James E. WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 80-1680.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1981.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Because no evidence was presented to prove a violation of condition 7, we order the finding of a violation of that condition stricken from the order revoking appellant’s probation.

Otherwise, we AFFIRM the order and the judgment and the sentence.

HOBSON, A.C.J., and GRIMES and DANAHY, JJ., concur.


text:
    TIMES PUBLISHING COMPANY, Petitioner, v. The Honorable Fred L. BRYSON, George Dudley, Larry Donnell Brown and the State of Florida, Respondents.
    No. 81-1908.
    District Court of Appeal of Florida, Second District.
    Nov. 20, 1981.
    George K. Rahdert of Rahdert, Packer & Lowell, St. Petersburg, for petitioner.
    Anthony S. Battaglia and Stephen J. Wein of Battaglia, Ross, Hastings, Dicus & Campbell, St. Petersburg, for respondent Bryson.
    Jim Smith, Atty. Gen., Susan E. Gamble, Thomas R. Tedcastle, Gerald B. Curington and Jann J. Farrell, Asst. Attys. Gen., Tallahassee, for respondents, Bryson and State of Florida.
    Allen P. Allweiss and Lee Fugate of Law Offices of Allen P. Allweiss, St. Petersburg, for respondent Dudley.
    Robert E. Jagger, Public Defender, Dudley J. Clapp, III, Chief Asst. Public Defender, St. Petersburg, for respondent Brown.
   PER CURIAM.

Petition for review denied. See Ocala Star Banner Corp. v. Sturgis, 388 So.2d 1367 (Fla. 5th DCA 1980).

SCHEB, C. J., and CAMPBELL and SCHOONOVER, JJ., concur.


author: HENDRY, Judge. BASKIN, Judge HENDRY, Judge.

text:
    Joseph LEWIS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1408.
    District Court of Appeal of Florida, Third District.
    Dec. 22, 1981.
    Rehearing Denied April 13, 1982.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   HENDRY, Judge.

Appellant was charged by information with kidnapping, armed robbery, and possession of a firearm during the commission of a felony. He was found guilty by a jury in the Circuit Court for Dade County, Florida of false imprisonment and unarmed robbery, as lesser included offenses of the charges in the information, and not guilty of possession of a firearm during the commission of a felony. The trial court entered adjudications of guilt and imposed concurrent sentences of seven and two years imprisonment. Appeal is taken from the judgment and sentences.

Appellant contends that the trial court committed fundamental error in its comment during cross-examination of a witness when the court said, “He is answering; he is being as precise as he can.” We do not agree. In our view there is no reasonable possibility that the instant statement by the trial judge deprived defendant of a fair trial. See and compare: Blake v. State, 336 So.2d 454 (Fla. 3d DCA 1976), cert. denied, 344 So.2d 323 (Fla.1977) (trial judge’s comment that witness was trying to answer the best way she knew how was not impermissible comment on weight and credibility of witness’ testimony so as to deprive defendant of a fair trial) and Robinson v. State, 161 So.2d 578 (Fla. 3d DCA 1964) (trial judge’s comment that witness was honest, poor man with inferior education and was doing his best to answer questions could have been interpreted as indication of preference and necessitated new trial for defendant); see generally: 15 Fla.Jur.2d, Criminal Law § 741.

The second ground urged for reversal is based on the trial court’s refusal to allow the defense to call defense witnesses whose names had not been supplied to the state as provided for by Florida Rule of Criminal Procedure 3.220. Defense counsel did not request, until after the state had rested, that testimony of the unlisted, potentially-alibi witnesses, be allowed. The court, upon inquiry, see Richardson v. State, 246 So.2d 771 (Fla.1971), found that the discovery violation was not justifiable (counsel’s stated reason for failing to timely list and call such witnesses being that he had been more concerned with the co-defendant), and that the state would be unduly prejudiced by allowance of such testimony at that juncture since it was not then in a position to impeach or rebut the testimony. In our view the inquiry made was sufficient to satisfy the requirements of Richardson v. State, supra, and furthermore, the court reasonably exercised its discretion in excluding the testimony of the unlisted defense alibi witnesses. Rolle v. State, 355 So.2d 491 (Fla.3d DCA 1978); Lail v. State, 314 So.2d 234 (Fla. 4th DCA 1975); Chester v. State, 276 So.2d 76 (Fla.2d DCA 1973).

Finally it is contended that the trial court committed fundamental error in failing to instruct the jury that specific intent is an element of the offense of robbery, as charged in count II of the information. Specific intent, i.e., the intent to permanently deprive the owner of the property taken, has been held to be an essential element of the crime of robbery upon which a jury instruction is required. Bell v. State, 394 So.2d 979 (Fla.1981). However, as was pointed out in this court’s opinion in Williams v. State, 400 So.2d 542 (Fla. 3d DCA 1981), decided after Bell, failure to charge the jury with respect to specific intent to commit robbery does not constitute fundamental error “in the absence of a real dispute on that question.” Williams v. State, supra, at 545. Since no issue or dispute was presented at trial of this cause with respect to defendant’s specific intent to commit the robbery, we conclude that failure to give this instruction, which was neither requested nor was its omission objected to, does not constitute fundamental error. Williams v. State, supra; see also Castor v. State, 365 So.2d 701 (Fla.1978); Simpkin v. State, 363 So.2d 45 (Fla.3d DCA 1978); Younghans v. State, 97 So.2d 31 (Fla. 3d DCA 1957); Waters v. State, 298 So.2d 208 (Fla. 2d DCA 1974).

For the reasons stated, the judgment and sentences are affirmed.

Affirmed.

BASKIN, Judge

(dissenting).

I believe the trial court’s exclusion of alibi witnesses material to his defense deprived Joseph Lewis of his Sixth Amendment rights, Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); Green v. State, 377 So.2d 193 (Fla. 3d DCA 1979), aff’d on other grounds, 395 So.2d 532 (Fla.1981). In my view, the inquiry conducted by the court upon learning of defendant’s discovery violation was inadequate and the sanction imposed was too severe.

Even though trial counsel for defendant Lewis failed to inform the prosecutor that he wished to call alibi witnesses until after the state had rested, the court was required to conduct a hearing before deciding to exclude the alibi witnesses. Richardson v. State, 246 So.2d 771 (Fla.1971). The state represented that its witnesses had left the jurisdiction; it did not indicate whether those witnesses were the rebuttal witnesses the state would need. It was incumbent upon the trial court to conduct a full and adequate inquiry before concluding that the state had been prejudiced, cf. Wilcox v. State, 367 So.2d 1020 (Fla.1979) (prosecutor’s noncompliance with obligation to reveal, upon request, any statements made by defendant requires full inquiry into surrounding circumstances of violation); cf. Cumbie v. State, 345 So.2d 1061 (Fla.1977) (defense sought discovery of defendant’s oral statements which were subject of police officers’ subsequent surprise testimony; failure to conduct inquiry into possible prejudice constitutes reversible error); Richardson v. State, supra, especially when the witnesses were listed on discovery as residents of this jurisdiction.

Furthermore, the court does not appear to have considered whether a sanction less severe than excluding all alibi witnesses could have been utilized. Witnesses should be excluded only under the most compelling circumstances. Williams v. State, 264 So.2d 106 (Fla. 4th DCA), cert. denied, 268 So.2d 162 (Fla.1972). A defendant should not be hampered in his defense by being subjected to punishment intended for trial counsel. Hotchkiss v. State, 367 So.2d 727 (Fla. 4th DCA 1979); Wilson v. State, 220 So.2d 426 (Fla. 3d DCA), cert. denied, 225 So.2d 921 (Fla.1969).

For these reasons, I would reverse the conviction and remand for a new trial.

ON MOTION FOR REHEARING EN BANC

HENDRY, Judge.

Following rehearing en banc, this court’s order of January 25, 1982, vacating the panel opinion and granting the defendant’s motion for rehearing en banc, is vacated by a majority of the court (Baskin and Jorgenson, JJ., dissenting), the original panel opinion in this cause is reinstated, and the defendant’s motions for rehearing and rehearing en banc are denied. Upon consideration of the facts and circumstances in this case, we have concluded that there exists no conflict with Wilson v. State, 220 So.2d 426 (Fla. 3d DCA), cert. denied, 225 So.2d 921 (Fla.1969). In contrast to the present case where the potential alibi witnesses were relatives residing with the defendant, Wiison, decided prior to Richardson v. State, 246 So.2d 771 (Fla.1971), made no inquiry into prejudice to the state and found the discovery violation excusable on the basis that the proffered witness was newly discovered.

      . Defendant Lewis is represented by different counsel on appeal.


author: SCHOONOVER, Judge.

text:
    FORT MYERS AIRWAYS, INC., and Beverly Varboncoeur, as Personal Representative of the Estate of Donald R. Varboncoeur, Deceased, Appellants, v. AMERICAN STATES INSURANCE COMPANY, a foreign corporation, Appellee.
    No. 81-459.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1982.
    Rehearing Denied March 17, 1982.

      John M. Murray, Joan S. Buckley of Walton, Lantaff, Schroeder & Carson, Miami, for appellants.
    Edward R. Curtis of Dolan, Fertig & Curtis, P. A., Fort Lauderdale, for appellee.
   SCHOONOVER, Judge.

The appellants, two of the defendants below, have appealed the entry of a summary judgment entered in favor of the appel-lee, American States Insurance Company (American States).

The sole question on this appeal is whether Donald R. Varboncoeur, deceased, was an insured under American States’ insurance policy.

Under the circumstances of this case, we hold that a flight instructor, giving instructions to the owner and insured of an airplane, is the agent or employee of the owner under an insurance policy which provides coverage to an agent or employee of the insured. We accordingly reverse the summary judgment entered against the appellants.

This case arose out of an airplane accident occurring in January 1977. The airplane, a Cessna 411, was owned by Herman Shaw, deceased, and insured by American States. An endorsement to the policy required Shaw to receive thirty-five hours of multi-engine instruction. In order to meet this requirement, Shaw contracted with one of the appellants, Fort Myers Airways, Inc., and through them received flight instructions from Donald R. Varboncoeur, deceased. During an instructional flight, and while Shaw was at the controls, the plane crashed into a building killing Shaw, Var-boncoeur, and an occupant of the building.

American States filed an action seeking a declaratory decree concerning its rights and obligations under the policy. Fort Myers Airways and Beverly Varboncoeur as personal representative of the Estate of Donald R. Varboncoeur counterclaimed alleging that Varboncoeur was an insured under the policy and therefore Fort Myers Airways, his employer, was also protected. Shaw’s estate filed a separate suit in the state of Indiana, and in that action it was determined that the policy was in effect at the time of the accident.

All parties to this appeal moved for a summary judgment, and the trial court held that Varboncoeur was not an insured under the policy and therefore American States had no duty to defend his estate.

The pertinent portions of the policy in question are as follows:

III. Definition of Insured. The unqualified word “insured” whenever used in this policy with respect to Coverages A, B, C and D, includes not only the named insured but also any person while using the aircraft and any person or organization legally responsible for its use, provided the actual use is with the permission of the named insured. The provisions of this paragraph do not apply to:
(c) any person or organization or any agent or employee thereof (other than agents or employees of the named insured) engaged in the manufacturing of aircraft, aircraft engines, aircraft accessories, or operating an aircraft repair shop, airport, hangar, aircraft sales agency or flying school with respect to any occurrence arising out of the manufacture or the operation thereof.

The appellants contend, and we agree, that Varboncoeur was an insured because he was a person using the aircraft with the insured’s permission. They further contend that, since he was an agent or employee of the named insured, he was not excluded from coverage by paragraph III(c) of the policy.

The appellee contends that Varboncoeur was an independent contractor and not an agent under both the dangerous instrumentality doctrine and the law of agency.

We are fully aware of the pitfalls of equating the existence of insurance with the existence of liability. Ray v. Earl, 277 So.2d 73 (Fla. 2d DCA 1973). However, we feel a construction of the term “insured” which closely parallels the dangerous instrumentality doctrine and the law of agency should be applied in this case. These principles determine the persons for whose acts the owner will be liable, and an insurance clause determines the persons, aside from the named insured, for whose acts the insurance company will be obligated to provide coverage.

Under the dangerous instrumentality doctrine, an airplane is a dangerous instrumentality, and the rules enunciated to govern an automobile owner’s liability for the operation of his automobile also govern the liability of owners of airplanes while they are in operation. Orefice v. Albert, 237 So.2d 142 (Fla.1970). Accordingly, when one permits another to operate his airplane, he becomes, as a matter of law, the principal, and the pilot becomes his agent. Orefice v. Albert.

American States contends that if the dangerous instrumentality is delivered to an independent contractor, the doctrine does not apply. Castillo v. Bickley, 363 So.2d 792, 793 (Fla.1978). However, this exception applies only when the use of the dangerous instrumentality is not permissive and when the owner has no choice in determining if, when, and how the dangerous instrumentality is to be used. In this case, the owner contracted with Fort Myers Airways and maintained control over the relationship of the parties. Shaw determined if and when the plane was to be used and for what purpose. He also reserved the power to dismiss Varboncoeur and Fort Myers Airways.

Under the law of agency, Varbonco-eur was also Shaw’s agent and therefore an insured under the policy in question.

The decisive test in determining whether the relationship of principal and agent exists is whether the employer has the right to control and direct the servant in the performance of his work and in the manner in which his work is done. Keitz v. National Paving & Contracting Co., 214 Md. 479, 134 A.2d 296 (1957).

Shaw entered into a contract to receive thirty-five hours of multi-engine instruction under the terms of a contract acceptable to him. He chose the time when the plane would be flown, received the benefits of Varboncoeur’s acts, and reserved the power to revoke the authority given to him.

It is the control of the relationship and not of the instrument which determines the relationship between the parties. One may be a servant or agent of another even though the employee is so much more skilled in the endeavor that actual assumption of the control would be a “folly.” Quigley v. Wilson Line of Massachusetts, Inc., 338 Mass. 125, 154 N.E.2d 77 (1958).

The fact that Varboncoeur was also an employee of Fort Myers Airways is not controlling. Under the common law of master and servant, a servant can at one time be generally the employee of his general employer and specially the employee of a special employer. Famous Players Laskey Corp. v. Industrial Accident Commission, 194 Cal. 134, 228 P. 5 (1924).

Since Varboncoeur was an agent or employee of the insured, he was not excluded from coverage under paragraph III(c) of the policy, and we accordingly reverse and remand for further proceedings consistent herewith.

SCHEB, C. J., and CAMPBELL, J., concur.

      . Herman Shaw (provided that he has received at least 35 hours of dual multi-engine instruction in Cessna 411 aircraft and his multi-engine rating prior to solo ....


text:
    Cullen DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 80-1602.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 1982.
    Rehearing Denied March 10, 1982.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the revocation of appellant’s probation. Jones v. State, 348 So.2d 942 (Fla. 2d DCA 1977). However, at hearing evidence was not presented regarding—nor did appellant admit — violation of condition (a) which prohibits changing residence without permission. Therefore, any reference to violation of condition (a) should be stricken from the order. Brouillett v. State, 373 So.2d 449 (Fla. 2d DCA 1979).

BOARDMAN, A. C. J., and OTT and DANAHY, JJ., concur.


author: BOARD MAN, Acting Chief Judge.

text:
    CAPE CAVE CORPORATION, a Florida corporation, Appellant, v. Oliver LOWE, property appraiser, Charlotte County; L. Victor Desguin, tax collector, Charlotte County; and Randy Miller, executive director, Florida Department of Revenue, Appellees.
    No. 81-841.
    District Court of Appeal of Florida, Second District.
    Jan. 29, 1982.
    Rehearing Denied March 11, 1982.
    Thomas R. Spencer, Jr. of Myers, Kaplan, Levinson, Kenin & Richards, Miami, for appellant.

      John M. Hathaway, Punta Gorda, for ap-pellee Oliver Lowe.
    Jim Smith, Atty. Gen., and Joseph C. Mellichamp II, Asst. Atty. Gen., Tallahassee, for appellee Randy Miller.
   BOARD MAN, Acting Chief Judge.

Plaintiff Cape Cave Corporation appeals an order dismissing the instant case for lack of jurisdiction. We reverse.

Appellant filed a complaint against appel-lees challenging its property tax assessment, alleging jurisdiction under Section 194.171, Florida Statutes (1979). Appellees moved to dismiss for failure of appellant to comply with the jurisdictional requirements of section 194.171(2), which requires that suit be filed within sixty days from the date the challenged assessment was certified for collection, alleging that the tax roll was certified on November 12, 1980, and that the instant complaint was not filed until February 18, 1981. After hearing, the trial court dismissed the case as requested. This appeal followed timely.

The statutory provisions concerning the duties of the property appraiser and the county Property Appraisal Adjustment Board (PAAB) and the rights and remedies available to an aggrieved taxpayer are at first blush somewhat complicated and confusing, but can be delineated and reconciled. The process begins with preparation by the property appraiser of the property assessment roll, which he must then submit to the executive director of the Department of Revenue for review. § 193.114(1) and (5), Fla.Stat. (Supp.1980). On or before approval of the roll by the department, property owners are notified of their assessment. § 194.011(2), Fla.Stat. (1979). Any property owner who objects to his assessment may, within specified time limits, either seek administrative review by petitioning the PAAB for review pursuant to section 194.011(3) or seek judicial review in the circuit court pursuant to Section 194.171.

If the taxpayer elects to pursue his administrative remedies, as appellant did here, the PAAB hearing procedure is governed by Section 194.032, Florida Statutes (Supp.1980). That section states that “nothing herein shall preclude an aggrieved taxpayer from contesting his assessment in the manner provided by s. 194.171, whether or not he has initiated an action pursuant to this section.” § 194.032(3). However, section 194.032 further provides that following the PAAB’s decision on a petition: “(6) Appeals of the board’s decision shall be as follows: . . . (b) Any taxpayer may bring an action to contest a tax assessment pursuant to s. 194.171.” Thus, it is clear that the legislature intended to afford the taxpayer access to the courts if he remains aggrieved after the PAAB’s review as well as if he decides to bypass the PAAB entirely, and the procedures and requirements governing judicial review are the same in either case.

Section 194.171(2) provides: “No action shall be brought to contest a tax assessment after 60 days from the date the assessment being contested is certified for collection under s. 193.122(2).” It is undisputed that the assessment involved here was certified for collection on November 12, 1980. Section 193.122(1), Florida Statutes (1979) requires that this certification be performed only “after all hearings required by s. 194.-032 have been held.” Since all such hearings were completed on November 5, 1980, the certification here was proper and started the running of the statutory sixty-day period.

However, the PAAB failéd to timely perform a related duty owed to appellant, to wit: the duty set forth in section 194.-032(5):

(5) In each case, except when a complaint is withdrawn by the petitioner or is acknowledged as correct by the property appraiser, the property appraisal adjustment board shall render a written decision. All such decisions shall be issued within 20 calendar days of the last day the board is in session under this section. The decision of the board shall contain findings of fact and conclusions of law and shall include reasons for upholding or overturning the property appraiser’s determination. The clerk, upon issuance of the decisions, shall, on a form provided by the Department of Revenue, notify by first-class mail each taxpayer, the property appraiser, and the department of the decision of the board.

Here, since the last day the PAAB was in session under this section was November 5, 1980, the PAAB’s decision on appellant’s petition should have been issued no later than November 25, 1980. Yet it was not issued until January 19, 1981, well over sixty days after appellant’s assessment was certified for collection. Appellant filed the instant complaint on February 18,1980, less than forty days after the PAAB’s decision was issued.

The sixty-day limit set forth in section 194.171(2) has been held to constitute a statute of limitations, Williams v. Law, 368 So.2d 1285 (Fla.1979), and a defendant may by its actions become estopped from claiming the benefit of a statute of limitations. Salcedo v. Asociacion Cubana, Inc., 368 So.2d 1337 (Fla. 3d DCA), cert. denied, 378 So.2d 342 (Fla.1979); North v. Culmer, 193 So.2d 701 (Fla. 4th DCA 1967). We conclude that the PAAB has become estopped to raise section 194.171(2) as a bar to appellant’s action by virtue of its failure to properly and timely notify appellant of its decision on appellant’s petition.

The PAAB argues that appellant was not required to await its decision, since section 194.032 authorizes a circuit court action by an aggrieved taxpayer whether or not the taxpayer avails itself of its administrative remedies. This is correct. However, since our legislature has seen fit to require a written decision, complete with findings of fact, conclusions of law, and reasons for the decision, when a taxpayer does file a petition with the PAAB, it is clear to us that the legislature intended that the taxpayer have the benefit of that written decision before deciding whether to then seek judicial review. We consider it eminently reasonable, therefore, for a taxpayer to assume, as appellant appears to have assumed, that the PAAB will comply with section 194.032 and that it (the taxpayer) has at least forty days from the date of issuance of the PAAB’s decision to file a complaint for judicial review. It is clearly unreasonable to require the taxpayer to check on the PAAB to make sure it has timely fulfilled its statutory responsibilities when the taxpayer has set in motion a process under which that taxpayer has a right to expect timely notice that the running of a statutory limitation period has begun.

Finally, the fact that appellant was notified (through its attorney) at the hearing of the fact that its petition would be denied does not avail the PAAB. As mentioned above, the legislature made it clear in section 194.032 that the taxpayer is entitled to notification of the reasons for the denial as well as the bare fact of denial.

Accordingly, we hold that the PAAB is estopped to raise the statute of limitations contained in section 194.171(2) as a defense to appellant’s action. We therefore REVERSE the trial court’s order of dismissal and REMAND for further proceedings consistent with this opinion.

OTT and RYDER, JJ., concur.

      . As noted earlier, appellant here filed its complaint within forty days of the issuance of the PAAB’s decision.