author: SCHWARTZ, Judge.

text:
    Anthony L. WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-277.
    District Court of Appeal of Florida, Third District.
    June 30, 1981.

      Bennett H. Brummer, Public Defender and Michael Zelman, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   SCHWARTZ, Judge.

On July 16,1979, two men with handguns held up a Burger King restaurant in Dade County. After a trial at which the sole issue was identity and upon instructions to which the defendant did not object, the jury found the appellant Williams guilty of the armed robbery. This appeal from the resulting adjudication and sentence to life imprisonment raises primarily the important question of whether the omission from the definition of robbery in the jury charge of the intent to deprive held in Bell v. State to be an element of that crime constitutes fundamental error. Because the existence of that intent was not in question at the trial, we hold that no such error was committed.

The issue in this case is common to all, or nearly all, robbery convictions secured in Florida between 1976 and 1980. It arises because the standard jury instruction given by the trial court on the crime of robbery under Section 812.13, Florida Statutes (1975), as amended by Chapter 74-383, § 38, Laws of Florida, although generally approved by the supreme court itself, see Standard Jury Instructions in Criminal Cases, 327 So.2d 6 (Fla.1976), did not include — incorrectly, as it turned out — the intent element required by Bell. The appellant contends here that this mistake fatally infects the judgment below and requires reversal notwithstanding his failure to raise the issue at trial. Williams expressly concedes on appeal, as he implicitly admitted below, that whoever held up the Burger King fully intended to take its property, and thus that there was no jury issue that the state had met its burden of proof concerning the subject of the defect in the instruction. He claims, however, as he must, that the omission of any element of the crime of which a defendant is convicted necessarily and invariably constitutes fundamental error regardless of the circumstances. We find that such a rule does not exist and that fundamental error occurs in such a situation only when an omission or error in the definition of a crime is pertinent or material to what must actually be considered by the jury in order to convict. Since that patently is not the case here, Williams’ argument cannot be accepted.

Any discussion of the preservation-fundamental error issue in general, and as it relates to unchallenged jury charges in particular, must commence with Castor v. State, 365 So.2d 701 (Fla.1978). There, the court re-emphasized the necessity that any such alleged errors be timely asserted below. The court said that this was “invariably required,” subject only to the “limited exception” which arises in the “rare cases of fundamental error” [e. s.], 365 So.2d at 703, 704. See also, State v. Cumbie, 380 So.2d 1031 (Fla.1980); Clark v. State, 363 So.2d 331 (Fla.1978). Castor defines, in turn, fundamental error in the most restricted manner:

For an error to be so fundamental that it may be urged on appeal though not properly preserved below, the asserted error must amount to a denial of due process. State v. Smith, 240 So.2d 807 (Fla.1970).
365 So.2d at 704, note 7. As applied to this case, Castor could easily serve as the end, as well as the beginning, of our inquiry. For, on the face of the matter, it clearly cannot be said that a defendant’s right to due process — that is, to an essentially fair trial, see State v. Jones, 377 So.2d 1163 (Fla.1979); Peterson v. State, 376 So.2d 1230 (Fla. 4th DCA 1979), cert. denied, 386 So.2d 642 (Fla.1980)—is compromised in any way by the failure to tell the jury that the state must prove something which undisputedly has in fact been established.

In the particular area with which we are concerned, the decided Florida cases fully support this conclusion. While there are several broad references to an affirmative duty of the trial court to instruct the jury on the elements of the crime charged, e. g., Croft v. State, 117 Fla. 832, 158 So. 454, 456 (1935); Whitehead v. State, 245 So.2d 94, 99 (Fla. 2d DCA 1971), the fact is that every such omission or misstatement which has actually been found to constitute fundamental error concerned a critical and disputed jury issue in the case. Croft v. State, supra (omission of then-element of armed robbery that, if resisted, defendant have intent to kill or maim person assaulted); Gerds v. State, 64 So.2d 915 (Fla.1953) (omission of intent element of breaking and entering with intent to commit rape; “[f]or all that appears under this charge, the jury could have had for its sole determination the question of whether defendant broke and entered the dwelling house of the pros-ecutrix and nothing else.”); Anderson v. State, 276 So.2d 17 (Fla.1973) (failure to define premeditation in first degree murder case); Polk v. State, 179 So.2d 236 (Fla. 2d DCA 1965) (same); Motley v. State, 155 Fla. 545, 20 So.2d 798 (1945) (omission from self-defense instruction of right to resist if defendant believed himself in imminent danger of harm, although, as the evidence in the case showed, no actual assault was made; error “goes to the essence and entirety of the defense.”); Whitehead v. State, supra (omission from definition of justifiable homicide of defense which “from appellant’s version of the tragedy ... was relevant to the exculpatory argument ... that he was lawfully attempting to ‘keep the peace’ ”); Bagley v. State, 119 So.2d 400 (Fla. 1st DCA 1960) (omission from justifiable homicide instruction of right to lawful defense of relative; defendant claimed she was acting in defense of son); Canada v. State, 139 So.2d 753 (Fla. 2d DCA 1962) (omission of intent to deprive element from cattle stealing instruction; “the defense ... was . .. that [the defendant] had no intention of stealing the cattle, but that his actions were the result of instructions received from the agent of the owner.. .”); Ingram v. State, 393 So.2d 1187 (Fla. 3d DCA 1981) (omission of disputed and basic element of receipt of value for check from instructions on felony charge of obtaining property through worthless check).

On the other hand, when it does not appear that the subject of the defective charge was an issue at the trial, our courts have repeatedly declined to reverse in the absence of timely objection. Paul v. State, 209 So.2d 464 (Fla. 3d DCA 1968) (failure to instruct jury “as to each and every element of the offense of grand larceny”); Simpkin v. State, 363 So.2d 45 (Fla. 3d DCA 1978) (omission of reference to or definition of dwelling in prosecution for burglary of dwelling; uncontroverted evidence that structure in question was in fact dwelling; “[n]o issue was raised on this point .. . ”); Waters v. State, 298 So.2d 208 (Fla. 2d DCA 1974) (omission from robbery instruction of intention to permanently deprive; evidence “is overwhelming that the robbers took the $80,000 with the intention of keeping it, and did in fact keep it.”); Hamilton v. State, 152 So.2d 793 (Fla. 2d DCA 1963), cert. denied, 156 So.2d 388 (Fla.1963) (failure to define excusable homicide, where evidence “did not bespeak a basic necessity requiring ... instruction”); see also, Bolen v. State, 375 So.2d 891 (Fla. 4th DCA 1979) (unnecessary to consider propriety of charge concerning essential element of crime; no more than harmless error involved because “there was no issue or contention whatever as to the subject matter of the challenged instruction”); Younghans v. State, 97 So.2d 31 (Fla. 3d DCA 1957) (same). An analysis of these cases reveals, we think, that the Florida rule is not, as Williams contends, that a failure to instruct on every element is fundamental error, but rather, as stated in Croft, supra, at 158 So. 455, that “a charge attempting to define the offense which does not cover material elements of the offense is necessarily misleading and prejudicial to the accused" [e. s.]; accord, Ingram v. State, supra, at 393 So.2d 1188. The “error” in question here obviously does not fall within this category.

While this distinction between material and immaterial omissions has not previously been articulated in this fashion in Florida, numerous cases from other jurisdictions have done just that. Many are collected in Annot., Comment Note — Duty in Instructing Jury in Criminal Prosecution to Explain and Define Offense Charged, 169 A.L.R. 315 (1947), where they are summarized as follows.

It appears to be generally, although not universally, established that an omission from the charge in a criminal case of a particular element of the offense or an erroneous instruction with respect thereto will not be regarded as reversible error if from the pleadings and the evidence in the case it is clear that there was no issue between the parties with respect to such element.

In accordance with this principle, several courts presented with the identical issue involved here have squarely held, as we do, that the omission of the intent element from a robbery instruction is not fundamental error in the absence of a real dispute on that question. Thus, in State v. Evans, 109 Ariz. 491, 512 P.2d 1225 (1973), the defendant was convicted of assault with intent to commit robbery. The trial court, without objection, did not state that a necessary element of the crime is an intent to permanently deprive the owner of his property. The court rejected a claim of fundamental error, stating:

When the evidence makes intent the battleground of the case, full and explicit instructions on the issue are required. State v. Spratt, 265 N.C. 524, 144 S.E.2d 569 (1965). On the other hand, when no evidence is offered to raise a direct issue as to intent, and the defendant does not contend or develop any issue that a taking was under a bona fide claim of right or was without any intent to steal, the failure to instruct the jury on the need for specific intent to steal is not reversible error.

512 P.2d at 1227. This point is well-illustrated by State v. Carter, 4 Wash.App. 103, 480 P.2d 794 (1971), in which four codefend-ants were convicted of robbery of a liquor store in a trial where the judge failed to advise the jury that proof of intent is an element of the crime. Three of the defendants won reversals of their convictions on appeal, since the gist of each of their defenses was that the holdup was an unplanned, spontaneous occurrence; each alleged in effect that they merely responded to the commands of one another. The court found that the element of intent was material to those defendants, and that the omission was therefore a “fatal defect.” However, the fourth codefendant’s conviction was affirmed, since

there was no evidence presented in [his] case which placed the element of intent in issue. There has been no showing that [he] was prejudiced by the failure to properly define the necessary element of intent...

480 P.2d at 800. Again, in People v. Dugas, 242 Cal.App.2d 244, 51 Cal.Rptr. 478 (1966), the court held that, while the omission

constitutes error in any case where the defendant’s intent to steal is not beyond question . . . where the evidence pertaining to the defendant’s conduct leaves no doubt whatever that he possessed the requisite state of mind, such error is not prejudicial.

51 Cal.Rptr. at 481. Accord, People v. Lundy, 2 Cal.App.3d 939, 82 Cal.Rptr. 815 (1969) (omission non-prejudicial since “[t]here never was any question but that the four men who entered the ... premises did so with the intent to commit robbery . .. [t]he only issue as to defendant was whether or not he was one of those four men.”); People v. Fanning, 265 Cal.App.2d 729, 71 Cal.Rptr. 641 (1968) (omission “obviously harmless . .. [since] [o]nce the jury had no reasonable doubt that [the defendant] was in the store and that he was aiding and abetting the robbery, it is inconceivable that it could have failed to find the necessary intent, even had it been correctly instructed.”); People v. Stone, 213 Cal.App.2d 260, 28 Cal.Rptr. 522 (1963) (omission of specific intent instruction not prejudicial where “no rational person” could infer from evidence presented that defendant did not intend to commit robbery); People v. Cowherd, 63 Ill.App.3d 229, 20 Ill.Dec. 344, 380 N.E.2d 21 (1978) (omission harmless error where absence of intent could not be seriously argued); see also, Thomas v. State, 391 P.2d 18 (Alaska 1964); Thomas v. State, 54 Ga.App. 747, 189 S.E. 68 (1936). In State v. McKeough, 300 A.2d 755, 759, 761 (Me.1973), the court summarized its holding— and ours — as follows:

We find that the strong disinclination which the courts have demonstrated toward setting aside convictions for trial errors which were not prejudicial to the Defendant extends to include failures to instruct specifically as to essential elements of crimes. Such failures to instruct have been measured by the same standards we ourselves have used when examining for manifest error — the presence or absence of serious prejudice.
* * * * * *
The defense was satisfied to submit the issue of guilt or innocence upon the explanations given by the Justice — until after the jury had returned a verdict of guilty.
While the jurors were not informed specifically that they must find that Defendant had a larcenous intent, we see no reasonable possibility that a complete instruction on intent to deprive permanently would have resulted in a different verdict. We are satisfied beyond a reasonable doubt that the omission in the Justice’s charge was harmless error here.

Since the appellant’s other points are likewise without merit, the judgment under review is, for these reasons,

Affirmed.

      . 394 So.2d 979 (Fla. 1981).

      . In both Worthey v. State, 395 So.2d 1210 (Fla. 3d DCA 1981), and Smith v. State, 375 So.2d 864 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1202 (Fla.1980), although for different reasons, decisions of the present question were pretermitted. As we noted in Worthey, at note 2, however, Smith foreshadowed a rejection of the fundamental error contention which may also have been substantiated by the supreme court’s denial of certiorari in Smith after its decision in Bell. Our present decision confirms that indication.

      . In Bell itself the omission of a charge on intent was raised below and was directly material to the issues in the case, since the trial judge (who was unfortunately the present writer) refused to permit evidence or argument concerning the defendant’s alleged intoxication on the ground that it was irrelevant to what was thought to be a non-specific intent crime. In both these respects, Bell is unlike the case at bar.

      .If the appellant is correct that the error is a fundamental one, every conviction which followed the standard jury instruction is presumably subject either to reversal on direct appeal or being vacated in proceedings under Fla.R. Crim.P. 3.850.

      . The issue before us is to be differentiated from a situation in which there is an absence of evidence to establish an element of a particular offense. Quite different questions concerning the necessity and manner of preserving that contention below are presented in such an instance. Compare, e. g., Negron v. State, 306 So.2d 104, 107-109 (Fla.1974) with, e. g., Finder v. State, 396 So.2d 272 (Fla. 3d DCA 1981).

      . We distinguish, as inapplicable to the present situation, the cases which find fundamental error when the instructions completely fail to define or explain either the crime charged, Williams v. State, 366 So.2d 817 (Fla. 3d DCA 1979), cert. denied, 375 So.2d 912 (Fla.1979); see also, Ingram v. State, 393 So.2d 1187 (Fla. 3d DCA 1981), or the underlying felony in a felony murder case. State v. Jones, 377 So.2d 1163 (Fla.1979); Robles v. State, 188 So.2d 789 (Fla.1966); compare Vasil v. State, 374 So.2d 465 (Fla.1979), cert. denied, 446 U.S. 967, 100 S.Ct. 2945, 64 L.Ed.2d 826 (1980); Taylor v. State, 386 So.2d 825 (Fla. 3d DCA 1980) (no fundamental error in omitting intent element in defining robbery as underlying felony of felony murder charge). See generally, Annot., Instructions—Defining Offense, 169 A.L.R. 315 (1947), and compare 317-322 with 346-348.

        Henderson v. State, 155 Fla. 487, 20 So.2d 649 (1945), is even more dissimilar. There, the trial court actually instructed the jury that certain elements of the crime had in fact been established by the prosecution and that it therefore need not consider them. See cases collected in Roe v. United States, 287 F.2d 435, 438 (5th Cir. 1961) (“... no fact, not even an undisputed fact, may be determined by the judge.”)

      . In many of the cases cited, the question was actually preserved below, but was held to be harmless or non-prejudicial. See Bolen v. State, supra. While a harmless error obviously cannot be fundamental, so that these decisions support our conclusion in the present case, we do not now determine whether, if objected to, the omission of the intent element must always be deemed reversible error. We note that in Hodge v. State, 393 So.2d 1188 (Fla. 3d DCA 1981), which was reversed on this ground, the record, although not the opinion, reveals that the defendant’s “intent to deprive” was in genuine question at the trial.

      . The following are examples of the application of the same principle in other contexts. United States v. Herzog, 632 F.2d 469 (5th Cir. 1980) (omission of essential element of defendant’s status as employee not “plain error” since status was “not only undisputed, but indisputable [F]ailure to submit ... this undisputed issue . .. could not possibly have resulted in prejudice to any of Herzog’s rights.”); Thomas v. State, 522 P.2d 528 (Alaska 1974) (failure to instruct on knowledge of nature of drug not reversible since not genuinely disputed at trial); People v. Chupich, 53 Ill.2d. 572, 295 N.E.2d 1 (1973) (same); People v. Litterio, 32 Ill.App.3d 255, 336 N.E.2d 190 (1975) (same); State v. Barr, 90 S.D. 9, 237 N.W.2d 888 (1976) (same); People v. Preston, 61 Ill.App.3d 434, 18 Ill.Dec. 908, 378 N.E.2d 372 (1978) (failure to instruct on element that use of illegal weapon not occur on one’s property not reversible because of uncontroverted evidence that shooting did not occur on defendant’s land); State v. Maxwell, 47 N.C.App. 658, 267 S.E.2d 582 (1980), appeal dismissed, 301 N.C. 102, 273 S.E.2d 307 (1980) (omission of element of willfullness in indecent liberties case harmless since evidence undisputed that defendant’s actions were purposeful and without justification and “the jury by finding that defendant committed the crime necessarily found that he acted willfully.”)

      . We reject Williams’ contention that, because of an ambiguity in the instructions to which he also did not object, he should have been convicted only of the lesser offense of robbery with a weapon, instead of robbery with a deadly weapon. See Reddick v. State, 394 So.2d 417 (Fla.1981). It is clear, viewing the instructions and the verdict finding Williams guilty as charged in the information in the context of the issues presented by both sides below, that the judgment under review properly reflects the intent and finding of the jury. Cotton v. State, 395 So.2d 1287, 1290 (Fla. 1st DCA 1981); Simpkin v. State, supra; see also, Tucker v. State, 388 So.2d 6 (Fla. 3d DCA 1980), review denied, 392 So.2d 1380 (Fla.1981); McIntyre v. State, 380 So.2d 1064 (Fla. 2d DCA 1980).
      The claim of error in the prosecutor’s final argument is also without substance. White v. State, 377 So.2d 1149 (Fla.1979), cert. denied, - U.S. -, 101 S.Ct. 129, 66 L.Ed.2d 54 (1980); Robinson v. State, 400 So.2d 172 (Fla.1981).


source: Caselaw Access Project

author: DANIEL S. PEARSON, Judge.

license: Public Domain

text:
    Jerry McMURTROY, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1093.
    District Court of Appeal of Florida, Third District.
    June 30, 1981.

      Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

McMurtroy primarily complains that the prosecutor’s non-disclosure of a statement made by the defendant to Ms. Whyte, the victim of the burglary, prejudiced his right to a fair trial and that the trial court’s finding to the contrary, after a Richardson hearing, is unsupportable.

Initially, McMurtroy was charged with two separate burglaries and attendant robberies arising out of alleged entries into two apartments (A and B) located in the same building. Before trial, the State abandoned its prosecution of the defendant on the burglary and robbery counts associated with Apartment B. The theory of the defense was that the same person, not McMurtroy, was responsible for both burglaries and robberies. In pursuit of this defense, McMurtroy proved (a) that his fingerprints were not found in Apartment B, which was burglarized a short time before Apartment A, and (b) that, according to the tenant of Apartment A, Ms. Whyte, the burglar who thereafter entered her apartment was barehanded and asked for gloves. Presumably, the thrust of this defense was that if it were McMurtroy who burglarized Apartment B leaving no prints, he would obviously be wearing gloves when he went to Apartment A, and therefore, Whyte was mistaken when she identified McMurtroy as the bare-handed burglar who entered her apartment.

On the heels of this “I-always-wear-gloves-when-I-commit-burglaries” defense, the State recalled Whyte, who testified that McMurtroy told her that he had been in Apartment B across the hall before coming to Whyte’s apartment. This statement of McMurtroy to Whyte inadvertently had not been previously disclosed to the defense. The trial court determined that its non-disclosure did not impair the defendant’s ability to defend. We agree.

The fallacy of the defendant’s argument that he was prejudiced by the non-disclosure is that the inference to be drawn from the statement is not that McMurtroy burglarized Whyte’s apartment, but rather that the person who burglarized Whyte’s apartment and made the statement to Whyte also burglarized Apartment B, the very thing which McMurtroy set out to prove. Had McMurtroy been on trial for the burglary of Apartment B, then his argument of prejudice might have some force. But here the undisclosed statement, while tending to prove that the same person committed both burglaries, had no tendency to prove that McMurtroy was that person. The proof of that, unfortunately for McMurtroy, lay in Whyte’s testimony identifying McMurtroy and the unexplained presence of McMurtroy’s fingerprints in Whyte’s apartment.

McMurtroy’s second point is that even though he failed to request that the jury be instructed that an element of the crime of robbery is the intent to permanently deprive the owner of property, the omission of such an instruction was fundamental error. In Bell v. State, 394 So.2d 979 (Fla.1981), the Florida Supreme Court held that it is error to refuse to give such an instruction when one is requested. The question here, where the sole disputed issue was the identity of the offender, is whether it is fundamental error to omit the undisputed element of intent to permanently deprive the owner of property when instructing on robbery. We hold, for the reasons and upon the authorities so fully and ably discussed in Judge Schwartz’s opinion in Williams v. State, 400 So.2d 542 (Fla.3d DCA 1981), that “the omission of the intent element from a robbery instruction is not fundamental error in the absence of a real dispute on that question.”

Affirmed.

      . Where the State violates the mandate of a discovery rule, Richardson v. State, 246 So.2d 771 (Fla.1971), requires the trial court to conduct a hearing to determine, inter alia, whether the violation by the State was willful, substantial, and, most important, prejudicial to the defendant’s ability to adequately prepare for trial.


author: NESBITT, Judge.

text:
    The STATE of Florida, Appellant, v. Eugene PITTS, Appellee.
    No. 79-2353.
    District Court of Appeal of Florida, Third District.
    June 30, 1981.
    Rehearing Denied July 23, 1981.
    Janet Reno, State Atty., and Ira N. Lo-ewy, Asst. State Atty. for appellant.
    Bennett H. Brummer, Public Defender and Lawrence J. Stein, Asst. Public Defender, for appellee.
    Before HENDRY, NESBITT and SCHWARTZ, JJ.
   NESBITT, Judge.

The state appeals an order arresting defendant’s judgment of conviction as authorized by Florida Rule of Appellate Procedure 9.140(c)(1)(D). We reverse.

The defendant was charged in a two-count information with aggravated battery with a firearm and possession of a firearm while engaged in a criminal offense, the aggravated battery. The jury was charged as to Count I on the offense as alleged. No lesser included offenses were requested or charged. As to Count II, the court instructed the jury in accordance with the terms of the statute: “It is a crime for any person to display, use, threaten or attempt to use a firearm while committing or attempting to commit a felony.” [emphasis supplied]. The jury acquitted the defendant on Count I, the aggravated battery, but convicted him on the possession charge. The court then arrested the judgment of conviction on the possession charge finding that the verdicts were inconsistent.

As in the very similar case of McCray v. State, 397 So.2d 1229 (Fla. 3d DCA 1981), the defendant relies upon Mahaun v. State, 377 So.2d 1158 (Fla.1979) to support the arrest of judgment. The state argues that the verdicts are not inconsistent because the jury was not instructed in Count I on attempted aggravated battery but was instructed in Count II that it could find the defendant guilty if he used a firearm while committing or attempting to commit a felony. The case of McCray v. State, supra, is dispositive of the issue presented here and, for the reasons and authorities discussed by Judge Schwartz in that opinion, we reverse the order arresting defendant’s judgment and conviction on Count II of the information and remand the cause to the trial court for, entry of a proper judgment and for sentencing.

Reversed and remanded.

      . Both sides specifically waived instruction on lesser included offenses.


author: MOORE, Judge.

text:
    EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, Appellant, v. Jeanne F. FAIRBANKS, Appellee.
    No. 79-2079.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1981.
    Cynthia S. Prettyman of Montgomery, Lytal, Reiter, Denney & Searcy, P.A., West Palm Beach, for appellant.
    Gerald M. Wochna of LaValle, Wochna, Rutherford, Maher & Truesdell, P.A., Boca Raton, for appellee.
   MOORE, Judge.

The appellant, defendant at trial, appeals an order granting a new trial. We affirm.

Subsequent to a jury trial and after hearing argument on the plaintiff’s motion for new trial, the trial court entered the following order:

1. The trial of this cause involved a slip and fall by Plaintiff at Defendant’s shopping center allegedly caused by Defendant’s failure to properly clean up an oil spot in the walkway of Defendant’s property. A jury found Plaintiff to be 90% negligent and Defendant 10% negligent and awarded total damages of $5,000.00, which was thereafter reduced according to the above percentages. Plaintiff’s Motion demanded a new trial on both the issues of damages and liability.

2. Special damages in this case include $818.25 for past medical treatments, $420.00 for past nursing care, and $1,750.00 as an estimate of the present costs of future surgery which would provide temporary symptomatic relief for Plaintiff’s existing knee condition. Additionally, Plaintiff incurred the amount of $405.00 to have her automobile shipped to Florida during the term of her recuperation.

3. The evidence was uncontroverted that although Plaintiff was between employment at the time of the injury, February 5, 1978, as of the end of December, 1977, she had been earning over $1,000.00 per month for the preceding nine month period. Also, she had secured employment as a real estate salesman in Chicago, Illinois, where she was to begin work again the week of her injury.

4. Plaintiff’s injuries, involving mainly a broken kneecap, caused her to miss approximately five months of work following her injuries during which time she spent seven weeks in a hard cast, and several more weeks in a removable cast, all according to the uncontradicted testimony of Dr. Jacob Raney, orthopaedic surgeon of Boca Raton, Florida, who was the only physician to testify in the case. Other witnesses who testified in the case, including the Plaintiff, also stated without contradiction that Plaintiff’s broken kneecap was painful following the injury and continued to give her pain through the date of the trial, over thirteen months later.

5. Again, according to Dr. Raney’s undisputed testimony, Plaintiff’s injuries resulted in a permanent impairment of 10% of the lower extremity. The mortality table introduced in evidence indicated that Plaintiff’s life expectancy exceeded 28 years.

6. Significantly, all of the above matters were testified to by Plaintiff and supporting witnesses. There were no witnesses produced by Defendant, either experts or otherwise, who contradicted the testimony referred to above.

7. The evidence of Plaintiff’s continuing disability was also unrefuted by Defendant. Testimony of Plaintiff and her supporting witnesses indicated that she presently was working less than full time as a realtor because of her injury. The amount of time she was missing from work was anywhere from four to ten days per month. Again, the past demonstrated value of her work time as a realtor and otherwise, exceeded $1,000.00 per month.

8. In view of the jury instructions properly given in the case, it is clear that the jury failed to consider both items of tangible and intangible damages sustained by the Plaintiff in this cause.

9. There being no conflict of testimony as to the injuries sustained by Plaintiff, and in fact, there being no witnesses from the defense whatsoever to contradict any of the evidence presented by the Plaintiff in this cause on the issue of damages, it is clear that a jury of reasonable men could not have returned the verdict which was returned in this cause. Griffis v. Hill, 236 [230] So.2d 143 (1969); Perenic, infra; Straker v. Lynch, 335 So.2d 356 (1 DCA 1976).

10. This Court has viewed the evidence most favorably to the Defendant and eliminated from consideration any matters upon which there was any material dispute and those matters which depended solely upon the subjective complaints of the Plaintiff. Anastasio v. Summersett, 217 So.2d 854 (4 DCA 1969).

11. Since the verdict is contrary to the “manifest weight of the evidence”, which by definition means evidence which is clear, obvious and indisputable, a new trial must be ordered. Perenic v. Castelli, 353 So.2d 1190 (4 DCA 1977).

12. Had there been any basis in the evidence upon which the jury could have reasonably concluded that the Plaintiff was not, in fact, injured, that Plaintiff’s injuries were from another accident or a pre-exist-ing cause, or that Plaintiff’s proof of her alleged injuries was not believable either because it was grounded upon her subjective complaints or because it was based upon medical testimony which was disputed, then in any of those events, this Court would not say that the jurors, as reasonable men, could not have found the verdict they did. Anastasio, supra, involved a strikingly similar factual situation to the instant case and employed almost identically the above language in its decision. See also Borandi v. St. Anthony’s Hospital, Inc., 291 So.2d 54 (2d DCA 1974).

13. Here, the evidence was without dispute that the Plaintiff was in fact injured as a result of the accident out of which the suit arose, and the nature and extent of the injury and its effect, was as delineated above.

14. Therefore, it can only be concluded that a verdict in such amount for damages sustained by the instant Plaintiff was induced by some misconception of the law or the evidence or that the jury did not consider all the elements of damage involved and was influenced by bias and prejudice. It is believed that the bias and prejudice of the jury is clear not only from the treatment of damages in the cause but also from their findings regarding liability.

15. The fact that oil existed at the Plaintiff’s point of fall, that Defendant knew about the existence of the oil and had in fact attempted to clean same some three days before, and also the fact that Plaintiff fell as a result of the oil being on the premises is all undisputed. The only issue appears to be the respective negligence of each party, i. e., whether or not Plaintiff by the exercise of reasonable care should have discovered the oil and avoided same.

16. Although there were no eyewitnesses except Plaintiff, the jury obviously found that Plaintiff was comparatively negligent in failing to discover the oily substance on the night in question. This finding was made in spite of Plaintiff’s direct testimony that she was watching where she was going and that the color of the oil which blended in with the brick area of the walk and the lighting available, did not permit her to discover the oil and prevent her fall.

17. Defendant produced an expert to testify to adequacy of the lighting which existed the night of the fall. Also Defendant, in opposition to Plaintiff’s testimony, produced a series of witnesses who were present and past employees who stated that they had inspected the walkway both before and after Plaintiff’s fall but did not notice any hazardous oil spill, even in the daylight and even though it was among their duties to discover foreign substances, including oil, on the walkway.

18. The conflict in testimony, as to the visibility or discernibility of the oil, was further underscored by the testimony of two other Plaintiff’s witnesses, Mrs. Pelle-rin and Plaintiff’s investigator, Mr. Stevens. Mrs. Pellerin saw the oil on the walk the day after the fall and Mr. Stevens photographed it less than a week later. The photographs were admitted into evidence.

19. Had Defendant not been found to be negligent at all, then a verdict concluding that Plaintiff fell somewhere else or as a result of something other than oil would have been at least understandable.

20. However, in finding that Defendant was negligent, the jury obviously found that Defendant had notice of the spot, had attempted to clean same (as testified to by Defendant’s witnesses), that Plaintiff fell at the spot in question, but that because of the lighting testimony produced by Defendant’s expert, Plaintiff was 90% negligent for failing to discover and avoid the spot which existed.

21. Although such conflicting testimony standing alone may not have been enough to overturn a verdict for the Defendant, such, when considered in conjunction with the issue of damages previously discussed, presents a situation where the issues of damages and liability are so inextricably interlaced, that justice to all parties concerned requires both issues to be retried. Lawson v. Swirn, 258 So.2d 458 (1 DCA 1972) and The 1661 Corp. v. Snyder, 267 So.2d 362 (1 DCA 1972).

22. Also, as stated in 58 AmJur 2d 213, New Trial Sec 27,

If the award of damages to the Plaintiff is “grossly inadequate”, so as to indicate that the jury was actuated by bias and prejudice, or that the verdict was a compromise, the Court must set aside the verdict in its entirety and award a new trial on all issues.

citing Leipert v. Honold, 39 Cal.2d 462, 247 P.2d, 324; 29 ALR 2d 1185; Artstein v. Pallo (Mo.) 388 S.W.2d 877, and others.

23. The conclusion that the jury speculated as to Plaintiff’s conduct and was influenced by bias and prejudice is therefore inescapable and a new trial must therefore be ordered on both issues of liability and damages herein.

We have examined the record in light of the foregoing order and the extant caselaw and we conclude that the appellant has failed to carry the heavy burden of demonstrating an abuse of the trial court’s discretion. Although the plaintiff’s credibility was impeached with prior inconsistent statements regarding her prior employment and residence, we do not find such impeachment to affect the otherwise uncontrovert-ed evidence of her injuries and the damages she suffered.

A trial judge’s discretion in granting a new trial, although not unbridled, is broad in scope and will not be disturbed on appeal unless an abuse is patent from the record. Cloud v. Fallis, 110 So.2d 669 (Fla. 1959); Castlewood International Corp. v. LaFleur, 322 So.2d 520 (Fla. 1976). We must lend great credence to the trial court’s superior vantage point. Pyms v. Meranda, 98 So.2d 341 (Fla. 1957). As this court said in Weems v. Dawson, 352 So.2d 1196 (Fla. 4th DCA 1977), the trial judge “was on the scene familiar with the temperature and pulse of the trial.”

In keeping with these principles, and although we may not agree, we cannot say that the granting of a new trial in this case was arbitrary, fanciful, or unreasonable, or that reasonable minds could not differ on the issue. See, Castlewood International Corp., supra at 524 (Overton, J., concurring).

Accordingly, the order is AFFIRMED.

LETTS, C. J., and HERSEY, J., concur.


author: HURLEY, Judge. LETTS, Chief Judge,

text:
    Dr. Gordon HAYSLIP, Petitioner, v. The Honorable Paul T. DOUGLAS, Circuit Court Judge of the Fifteenth Judicial Circuit in and for Palm Beach County, Respondent.
    No. 81-778.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1981.

      L. Martin Flanagan of Jones & Foster, P.A., West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for respondent.
   HURLEY, Judge.

By petition for writ of prohibition we are asked to determine the propriety of an order denying a motion to disqualify a judge. We conclude that the motion and its supporting documents were legally sufficient and, consequently, the trial judge erred in failing to disqualify himself. We grant and issue the writ of prohibition.

Dr. Gordon Hayslip, a defendant in a medical malpractice action pending before the respondent judge, filed a verified motion for disqualification pursuant to Rule 1.432, Fla.R.Civ.P. Dr. Hayslip averred that he feared he could not obtain a fair and impartial trial due to prejudice or bias on the part of the trial judge against his defense attorney. The motion recited that Hayslip’s counsel had moved to disqualify the same judge in two earlier cases and that in response to one of those motions, the trial judge had stated, "I’m going to review the file a little more before I rule, but it appears to me that this is a frivolous and perhaps almost champertous motion for me to recuse myself.” Given this history of prior conflict, Dr. Hayslip further averred that a pre-trial hearing had been held in his case to permit the court to consider and rule on plaintiff’s counsel’s motion to withdraw. The motion was uncontested and at some point in the proceeding, the court pointed at Dr. Hayslip’s attorney and said:

There is another lawyer whose name I would like to add to this motion to withdraw. He should not be in this case.

Shortly thereafter, Dr. Hayslip filed a verified motion to disqualify the trial judge. Included in the motion was a verified certificate by defense counsel that the motion and affidavit were made in good faith. Attached to the motion were two sworn depositions from attorneys who represented other codefendants in Dr. Hayslip’s case and who had been present at the pre-trial hearing on the motion to withdraw. Each deposition substantiated the statement of facts regarding the trial court's remarks to Dr. Hayslip’s attorney.

A hearing was held on the motion for disqualification and at its conclusion the trial judge announced that the motion was denied. Unfortunately, neither at the hearing nor in its order, did the court set forth the rationale for its decision. Thereupon, Dr. Hayslip filed a petition for writ of prohibition and we issued an order to show cause.

Preliminarily, we note that a petition for writ of prohibition is the appropriate procedural device to test the validity of a denial of a motion to disqualify filed pursuant to Rule 1.432, Fla.R.Civ.P. Dickenson v. Parks, 104 Fla. 577, 140 So. 459 (1932); Brewton v. Kelly, 166 So.2d 834 (Fla. 2d DCA 1964); State ex rel. Jensen v. Cannon, 163 So.2d 535 (Fla. 3d DCA 1964).

In approaching the issue of judicial disqualification courts must be ever mindful of the fundamental principles which govern the resolution of these questions. In Dickenson v. Parks, supra 140 So. at 462, the court held:

Prejudice of a judge is a delicate question to raise, but when raised as a bar to the trial of a cause, if predicated on grounds with a modicum of reason, the judge against whom raised should be prompt to recuse himself. No judge under any circumstances is warranted in sitting in the trial of a cause whose neutrality is shadowed or even questioned.
******
The outstanding big factor in every lawsuit is the truth of the controversy. Judges, counsel, and rules of procedure are secondary factors designed by the law as instrumentalities to work out and arrive at the truth of the controversy. The judiciary cannot be too circumspect, neither should it be reluctant to retire from a cause under circumstances that would shake the confidence of litigants in a fair and impartial adjudication of the issues raised.

With the foregoing in mind, we turn to Rule 1.432, Fla.R.Civ.P. which delimits the narrow responsibility of a judge presented with a motion for disqualification. In particular, subsection “d” of the rule specifies:

The judge against whom the motion is directed shall determine only the legal sufficiency of the motion. The judge shall not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge shall enter an order of disqualification and proceed no further in the action.

To determine whether the motion and its supporting documents are legally sufficient, the court must first turn to the literal requirements of Rule 1.432, Fla.R. Civ.P. and Section 38.10, Florida Statutes (1979). First, the motion must be made by a party; it must be verified, and it must allege the facts relied upon to show the grounds for disqualification. Second, there must be a certificate by counsel of record indicating that the affidavit and application are made in good faith. Third, the operative facts in the party’s motion must be substantiated by at least two affidavits from reputable citizens of the county who are not related to the defendant or his attorney.

The term “legal sufficiency” encompasses more than mere technical compliance with the rule and the statute; the court must also determine if the facts alleged (which must be taken as true) would prompt a reasonably prudent person to fear that he could not get a fair and impartial trial. Brewton v. Kelly, supra. As indicated by the court in State ex rel. Brown v. Dewell, 131 Fla. 566, 179 So. 695, 697-98 (1938):

The test of the sufficiency of the affidavit is whether or not its content shows that the party making it has a well-grounded fear that he will not receive a fair trial at the hands of the judge. It is not a question of how the judge feels; it is a question of what feeling resides in the affiant’s mind, and the basis for such feeling. . . . [The trial judge] cannot pass on the truth of the allegations of fact. If they are not frivolous or fanciful, they are sufficient to support a motion to disqualify on the ground of prejudice.

Turning now to the verified motion and the supporting documents in the case at bar, we hold that they satisfy the technical requirements of Rule 1.432, Fla.R.Civ.P. and Section 38.10, Florida Statutes (1979). It is of no consequence that Dr. Hayslip was absent from the pre-trial hearing at which the trial judge allegedly made the comments in question. His verified motion contains a detailed statement of facts which led him to believe that he could not receive a fair and impartial trial before the respondent judge. In our view, this satisfies the requirements of subsection “b” of Rule 1.432, Fla.R.Civ.P. To require that the moving party have personal knowledge of the underlying facts would be to impose an unrealistic and unnecessarily constricted limitation. It would ignore the safeguards embodied in the statute’s requirements for two supporting affidavits plus a certificate of good faith. Moreover, such a narrow construction would put relief beyond the reach of all but a minute group of litigants. Such a result would be at odds with the clear intent of the statute. Section 38.10 was crafted to insure confidence in the integrity of our system of justice. The availability of its remedy is an indispensable right of all litigants. Thus, we hold that a party need not have personal knowledge of the facts set forth in his motion. However, all of the requirements of the rule and the statute must be met and the supporting-affidavits must be fully credible. City of Palatka v. Frederick, 128 Fla. 366, 174 So. 826 (1937).

Counsel for Dr. Hayslip complied with the requirements of Section 38.10, Florida Statutes (1979), by filing a certificate of good faith. Additionally, counsel’s certificate was verified. Next, the supporting affidavits or sworn depositions unquestionably substantiate the operative facts set forth in Dr. Hayslip’s motion. Both attorneys were present at the pre-trial hearing on the motion to withdraw and both confirmed, practically verbatim, Dr. Hayslip’s account of the judge’s remarks. The fact that the supporting affidavits were provided by attorneys for co-defendants of Dr. Hayslip, is, in our view, of no account. Neither attorney is related to Dr. Hayslip or his attorney and that is all that the statute requires. We perceive no reason nor authority to accede to respondent’s suggestion on appeal that we impose a more stringent requirement.

The only remaining question is whether the alleged remarks, which were directed at defense counsel rather than his client, could reasonably justify the client’s fear that he would not receive a fair trial at the hands of the respondent judge. It is well to remember that Section 38.10, Florida Statutes (1979), refers to “prejudice of the judge ... against the applicant, or in favor of the adverse party....” (Emphasis supplied). This issue was addressed by the court in State ex rel. Jensen v. Cannon, supra:

[A judge] is disqualified where his prejudice against the attorney is of such a degree that it adversely affects the client, in which instance the trial judge should disqualify and recuse himself. See Ginsberg v. Holt, Fla.1956, 86 So.2d 650; State ex rel. Fuente v. Himes, 160 Fla. 757, 36 So.2d 433; State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613.
Id. at 537.

We agree with the court’s observation in Brewton v. Kelly, supra at 836, that “[i]t is not always possible with exact particularity in a matter of this kind to set forth facts as to the process of the human mind. . . . ” Nonetheless, we feel certain that under the facts as alleged in Dr. Hayslip’s motion, his fear was reasonable and not frivolous nor fanciful. Though a client and his counsel are separate entities, they share a common bond forged by the attorney-client relationship and tempered in the rigors of litigation. Most clients find the courtroom to be an unfamiliar and, in some instances, uncomfortable atmosphere and so it is not unusual that they entrust themselves into their counsel’s care and view their interests as one. Thus, it is understandable that a client would become concerned and fearful upon learning that the trial judge has an antipathy toward his lawyer and has expressed the opinion that the client’s counsel “should not be in this case.”

Ultimately, questions of judicial disqualification, must be viewed in the context of those principles which were eloquently set forth by Justice Terrell in State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613, 615 (1939):

[EJvery litigant is entitled to nothing less than the cold neutrality of an impartial judge. It is the duty of Courts to scrupulously guard this right and to refrain from attempting to exercise jurisdiction in any matter where his qualification to do so is seriously brought in question. The exercise of any other policy tends to discredit the judiciary and shadow the administration of justice.
It is not enough for a judge to assert that he is free from prejudice. His mien and the reflex from his court room speak louder than he can declaim on this point. If he fails through these avenues to re-fleet justice and square dealing, his usefulness is destroyed. The attitude of the judge and the atmosphere of the court room should indeed be such that no matter what charge is lodged against a litigant or what cause he is called on to litigate, he can approach the bar with every assurance that he is in a forum where the judicial ermine is everything that it typifies, purity and justice. The guaranty of a fair and impartial trial can mean nothing less than this.

Since we have concluded that Dr. Hays-lip’s verified motion and supporting documents meet the test of legal sufficiency, we grant and issue the writ of prohibition. We declare the respondent judge disqualified in this matter and prohibit him from taking any further action. We further instruct the Chief Judge of the Circuit Court for the Fifteenth Judicial Circuit, through the normal random assignment process, to cause the case to be reassigned for trial.

The writ of prohibition is granted.

DOWNEY, J., concurs.

LETTS, C. J., concurs specially with opinion.

LETTS, Chief Judge,

specially concurring.

I agree with the majority opinion as it applies to the individual facts of this case, but it should not be used prospectively as a vehicle to seek removal of a presiding jurist every time an attorney makes a judge angry, which anger may well be justified and actually in furtherance of the cause of justice rather than prejudicial to it.

Notwithstanding, without any apparent basis whatsoever in this particular case, Judge Douglas delivered a totally gratuitous pronouncement which undeniably revealed his personal distaste for Dr. Hays-lip’s lawyer. Maybe Judge Douglas honestly felt he had good cause for this distaste, but that is not apparent from the record and therefore of no consequence here. If such is Judge Douglas’ conclusion to the point where he is compelled to express it in such a partial manner, he has no option but to withdraw, if the gauntlet is laid down before him in conformity with the statute and the rules. He who chooses to sit on the bench must forego the pleasures of oral condemnations therefrom which are unrelated to the furtherance of the cause at hand. Such exasperated declarations as: “Let the damn appellate court read it for themselves” may be emotionally satisfying and identifiable with such dashing heroes as Rhett Butler; however the declaration would be just as apropos without the “damn” and certainly more judicious.


author: BASKIN, Judge.

text:
    BACHE, HALSEY, STUART, SHIELDS, INCORPORATED, a Foreign Corporation authorized to do business in Florida, Appellant, v. Victor MENDOZA, Appellee.
    No. 80-1933.
    District Court of Appeal of Florida, Third District.
    July 1, 1981.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Curtis Carlson, Miami, for appellant.
    Ginsberg & Goldman, North Miami Beach, and Albert Wilensky, Miami, and Daniel L. Ginsberg, North Miami Beach, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   BASKIN, Judge.

ON MOTION FOR REHEARING

Subsequent to the entry of our order of May 5, 1981, 397 So.2d 1011, dismissing an appeal from an order granting a motion to vacate a default, we granted rehearing. Upon rehearing we now vacate our order of dismissal, withdraw our mandate, and reinstate the appeal as appropriate under Florida Rule of Appellate Procedure 9.130(a)(4). According to Committee Notes: “Other non-final orders entered by a lower tribunal after final order are reviewable and are to be governed by this rule. Such orders include, for example, an order granting a motion to vacate default.” The appeal was from an order granting Defendant’s Motion to Set Aside Default and Final Judgment, see Yates v. Roller Skating Rinks, Inc., 379 So.2d 1333 (Fla. 5th DCA 1980), and was therefore proper.

We have reviewed the merits of the parties’ contentions presented in their briefs and at oral argument, and we find no error committed by the trial court in setting aside default judgment.

Section 48.031(1), Florida Statutes (1979) permits service of original process to be made by leaving copies with any person fifteen years or more who resides at the usual place of abode of the person to be served and “informing the person of their contents.” The deputy sheriff did not recall explaining to Mrs. Mendoza the contents of the papers he left. Mrs. Mendoza testified at her deposition that service consisted solely of a knock on the door, a man saying “Mendoza”, and delivery of papers, the contents of which she did not understand. Under these circumstances, we find no compliance with section 48.031(1), and we affirm the trial court’s order setting aside default judgment.


author: JOANOS, Judge.

text:
    NATIONWIDE FINANCIAL CORPORATION OF COLORADO, Appellant, v. Jack K. THOMPSON, Beverly P. Thompson, Individually, Hester E. Thompson, Heather L. Thompson, George K. Thompson and Dale Carson, as Sheriff of Duval County, Florida, Appellees.
    No. YY-8.
    District Court of Appeal of Florida, First District.
    July 7, 1981.

      Albert H. Mickler, Jacksonville, for appellant.
    Walter F. Rogers, Jr., Eugene F. Murphy, William Lee Allen, Jacksonville, for appel-lees.
   JOANOS, Judge.

This appeal results from the trial court’s dismissal of a complaint filed by Nationwide Financial Corporation (“Nationwide”) seeking to enforce a lien against an undivided one-half interest in real property formerly held by Jack Thompson. The trial court found that the real property involved was protected from attachment of a lien by the homestead exemption provision of Article X, Section 4, Florida Constitution. We agree with Nationwide that dismissal of its complaint was inappropriate and remand this case for further proceedings consistent with this opinion.

As set forth in the complaint, Jack and Beverly Thompson were husband and wife and each owned an undivided one-half interest in their marital residence. Jack and Beverly separated, however, with Jack moving into an apartment while Beverly and their three children remained in the house. During this period of separation, Nationwide obtained and recorded a personal judgment against Jack. About one week after the judgment was recorded, Jack and Beverly’s marriage was dissolved, and the final judgment of dissolution ordered Jack to convey his half interest in the marital residence to his children Kevin (a minor), Heather, and Kester. Beverly was given custody of Kevin, the minor child, as well as exclusive use and possession of the marital residence; Jack was ordered to pay child support for Kevin.

In compliance with the final judgment, on November 14, 1979, Jack conveyed his interest in the property to his three children. Five days after this conveyance, Nationwide instructed the Sheriff to levy on Jack’s one-half interest. Jack filed an affidavit of homestead exemption claiming his one-half interest in the property to be exempt, but the interest was sold to Nationwide in a Sheriff's sale on January 30,1979. When the Sheriff refused to deliver the deed, Nationwide then filed a complaint seeking a determination of the homestead status of the property and requesting that its title to its interest in the property be quieted. Both of these counts were dismissed by the trial judge on the ground that Nationwide has no interest in the property due to its homestead status at the time of the judgment lien.

Nationwide argues that its lien attached to the property when it ceased to become homestead property. This occurred, according to Nationwide, either when Jack “abandoned” the property by moving into an apartment or when he conveyed the property to his children. In addition, Nationwide argues that the trial court could not make a determination that Jack was “head of a family” (a requirement for homestead exemption) on a motion to dismiss because that issue required a factual determination. Although we reject Nationwide’s first contention, we do agree that further evidence is necessary in order to make a proper determination of the validity of Nationwide’s lien.

Article X, § 4(a) of the Florida Constitution provides, in pertinent part:

There shall be exempt from forced sale ..., and no judgment, decree or execution shall be a lien thereon . . . the following property owned by the head of a family: (1) a homestead ... upon which the exemption shall be limited to the residence of the owner or his family.

This provision results in a two-part test for homestead exemption on a particular piece of property. First, the property must be the residence of either the owner or the owner’s family. Second, the owner of the property must be the “head of a family.”

Concerning Nationwide’s contention that Jack “abandoned” the property, the Florida Constitution does not require that the owner claiming homestead exemption reside on the property; it is sufficient that the owner’s family reside, on the property. See Vandiver v. Vincent, 139 So.2d 704 (Fla. 2d DCA 1962). During the period of time that Jack retained his ownership interest in the property, his wife and minor child still occupied the residence. In order to support a claim of abandonment it must be shown that both the owner and the owner’s family abandoned the property.

We also reject the argument that Nationwide’s lien attached when the property was transferred to Jack’s children pursuant to the final judgment of dissolution. The material time for determining the priority of a lien over a claim of homestead exemption is the time the lien would have attached if homestead exemption were not applicable. Bessemer Properties, Inc. v. Gamble, 27 So.2d 832 (Fla.1946). See also 16 Fla.Jur. Homesteads § 41; Maines & Maines, Our Legal Chameleon Revisited: Florida's Homestead Exemption, 30 U.Fla. L.Rev. 227 (1978). In this case, the validity of the homestead claim must be evaluated with regard to the period of time that Nationwide’s judgment was entered and recorded. If the property had attained its homestead status before this period of time, a subsequent sale of the homestead will not give effect to the attempted lien. As the court points out in Volpitta v. Fields, 369 So.2d 367, 369 (Fla. 4th DCA 1979); cert. denied, 379 So.2d 204 (Fla.1979), “[creditors have no right to complain of dealings with property which the law does not allow them to apply to their claims.” See also Bessemer Properties, Inc., supra. Therefore, if there was no lien against Jack’s interest as long as he owned the property, there is no basis for enforcing a lien against the Thompson children.

Having resolved that the allegations of the complaint were that Jack owned an undivided one-half interest in property which served as his family’s residence, it is still necessary to determine whether Jack was the “head of a family” in order for the homestead exemption to apply. We cannot assume that he was the “head of the family.” It is a factual question. The courts have long held that under the Florida constitution there can be only one head of a family. Solomon v. Davis, 100 So.2d 177 (Fla.1958); Anderson v. Garber, 183 So.2d 693 (Fla. 3d DCA), cert. denied, 188 So.2d 820 (Fla.1966). Since the homestead exemption for the “head of a family” has been a part of the constitution, however, separate living arrangements, dissolutions and single parentage have become a much more frequent occurrence. It is common for more than one member of the family to provide family income. When the “family” is not a cohesive unit or when only one parent provides the income, it is no easy task to determine who is the “head” of the family, and the courts have been reluctant to adhere to any hard and fast rule in making that determination. See, e. g., Osceola Fertilizer v. Sauls, 98 Fla. 339, 123 So. 780 (1929); Barnett Bank of Cocoa v. Osborne, 349 So.2d 223 (Fla. 4th DCA 1977); Estate of Deem v. Shinn, 297 So.2d 611 (Fla. 4th DCA 1974); Vandiver v. Vincent, 139 So.2d 704 (Fla.2d DCA 1962). As the divergent results of the above-cited cases point out, because each case must be resolved on its own facts and circumstances the issue of who is the family head is inappropriate for disposition on a motion to dismiss. Cory v. Parks, 386 So.2d 292 (Fla. 2d DCA 1980).

Before receiving further evidence on the issue of whether Jack was the head of the family, for practical reasons of judicial efficiency the trial judge may first allow proof of the nature of the property interest involved in this case. The complaint alleged that Jack and his wife each owned an undivided one-half interest in the residence, but did not state whether the property was held as tenants in common or as tenants by the entireties. If the latter form of ownership is proven, Nationwide’s lien should fail not on the basis of homestead exemption, but because that form of property ownership precludes the attachment of liens which are not the joint obligation of both husband and wife. Murray v. Sullivan, 376 So.2d 889 (Fla. 1st DCA 1979). Thus, if the court finds that prior to the dissolution the property was held as tenants by the entireties, it will become unnecessary to determine the homestead status of the property.

REVERSED and REMANDED for further consideration consistent with this opinion.

MILLS and SHAW, JJ., concur.

      . Nationwide does not argue that it is presently entitled to partition or possession of the property and has conceded that its lien is subordinate to Beverly’s interest as well as her court-awarded possession of the property. Plaintiffs Memorandum of Law in Opposition to Defendants’ Motion to Dismiss, Record on Appeal, p. 18; Appellant’s Reply Brief, p. 2.

      . Although appellant has argued, that the lien could have attached during the “gap” between the dissolution judgment ordering Jack to convey his property and the actual delivery of the deed, we deem the judgment of dissolution to control the transfer of the property. See, e. g., Liberman v. Kelso, 354 So.2d 137 (Fla. 2d DCA 1978). For purposes of determining if or when Jack’s interest lost its homestead status, therefore, the court should consider only the period prior to the dissolution judgment.

      . Although the cases in this area seem to be incompatible, the trial judge faced with making a finding on who is the family head may take some solace in the knowledge that a common thread can be found running through each case: the homestead law should be construed liberally for the benefit of those whom it was designed to protect. See Vandiver v. Vincent, 139 So.2d 704, 707-708 (Fla. 2d DCA 1962).


author: PER CURIAM.

text:
    Guillermo ESTRADA, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1368.
    District Court of Appeal of Florida, Third District.
    July 7, 1981.
    Bennett H. Brummer, Public Defender and Charlene Carres, Sp. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.

      Before HUBBART, C. J., and HENDRY and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The judgment of conviction and sentence for aggravated assault [entered upon a jury verdict of guilt as a lesser offense on an information charging robbery with a firearm] which is under review by this appeal is affirmed upon a holding that:

(1) the sole point raised on appeal [i. e., the state’s evidence was insufficient to establish that the defendant intended to participate in the subject aggravated assault as an aider and abetter] was not properly preserved for appellate review because: (1) no motion for judgment of acquittal was made below [at best only an argument in support of such a motion at the close of the state’s case], and no motion for new trial was made below; State v. Barber, 301 So.2d 7 (Fla.1974); Mancini v. State, 273 So.2d 371 (Fla.1973); Sundell v. State, 354 So.2d 409 (Fla. 3d DCA 1978); and (b) the argument on sufficiency made below at the close of the state’s case — even if treated as a motion for judgment of acquittal — consisted solely of an attack on the identification of the defendant and was in no way related to the criminal intent — aiding and abetting ground now asserted for the first time on appeal, Daley v. State, 374 So.2d 59 (Fla. 3d DCA 1979); G.W.B. v. State, 340 So.2d 969 (Fla. 1st DCA 1976), cert. denied, 348 So.2d 948 (Fla.1977);

(2) the state’s circumstantial evidence relevant to the defendant’s intent to participate in the subject aggravated assault as an aider and abetter was, in any event, sufficient to withstand a motion for judgment of acquittal as it established that the defendant: (a) was the driver of the get-away car in a gas station holdup; (b) drove the said car into the gas station prior to the holdup and hid the car behind a wall on the gas station property so that the car could not be seen from the street or from inside the building on the gas station property; (c) waited while his two companions in the car got out and committed a robbery with a firearm upon the attendant at the gas station; and, (d) hastily fled the scene in the car with his two companions after the robbery was committed, and was caught shortly thereafter with the fruits and in-strumentalities of the robbery plainly visible to all in the car, see e. g., Lynch v. State, 293 So.2d 44 (Fla.1974); Amato v. State, 296 So.2d 609, 610 (Fla. 3d DCA 1974).

Affirmed.


text:
    Edna Wolkowsky MAESA, Appellant, v. Carmen LOPEZ, Appellee.
    No. 80-708.
    District Court of Appeal of Florida, Third District.
    July 7, 1981.

      Richard M. Gale, Ponzoli & Wassenberg, Miami, for appellant.
    Greene & Cooper and Sharon L. Wolfe, Gilmour, Morgan & Rosenblatt, Miami, for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   BASKIN, Judge.

Because we find that issues concerning negligence of both the driver, who backed into pedestrian Lopez without seeing her, and of appellee Lopez, who was mailing a letter in a mailbox on the sidewalk near a parking area when she was struck by appellant’s car, should have been submitted to the jury, we reverse the Final Judgment and Supplemental Final Judgment entered after the trial court directed a verdict in favor of appellee on the issue of liability. Although testimony indicates that the driver failed to see thé pedestrian, inferences drawn from the evidence raise questions regarding the driver’s obligation to have been aware of the pedestrian and of the pedestrian’s comparative negligence. Bilams v. Metropolitan Transit Authority, 371 So.2d 693 (Fla. 3d DCA 1979); see Spackman v. Laumer, 237 So.2d 35 (Fla. 1st DCA), cert. denied, 239 So.2d 830 (Fla. 1970).

Because it is the traditional function of a jury to determine disputed issues of fact, the power to direct a verdict should be sparingly and cautiously exercised. If any reasonable theory of the evidence, including any lawful inferences that may be drawn therefrom, would have justified a verdict for the plaintiff, it was the duty of the court to submit such problem to the jury for its determination. See Katz v. Bear, Fla. 1951, 52 So.2d 903. Also see Hilkmeyer v. Latin American Air Cargo Expediters, Fla. 1957, 94 So.2d 821.

Good v. Ozer, 100 So.2d 204, 205 (Fla. 3d DCA 1958).

Reversed and remanded for a new trial on the question of liability.


text:
    David Michael FERRINTI, Appellant, v. The STATE of Florida, Appellee.
    No. 80-888.
    District Court of Appeal of Florida, Third District.
    July 7, 1981.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Martinez v. State, 368 So.2d 338, 339-340 (Fla.1978); Watford v. State, 353 So.2d 1263 (Fla.1st DCA 1978); State v. Smith, 348 So.2d 637, 638-39 (Fla.2d DCA 1977); see State v. Guyton, 331 So.2d 392 (Fla.4th DCA), cert. denied, 336 So.2d 1182 (Fla.1976).


text:
    Lester SHERNOFF, Appellant, v. Carlos F. SCHMIDT, Gerald Schwartz, Sara Schwartz, his wife, and Maison Grande Condominium Association, Inc., Appellees.
    No. 80-1686.
    District Court of Appeal of Florida, Third District.
    July 7, 1981.

      Steinberg, Sorota & Wohl and Paul B. Steinberg, Miami Beach, for appellant.
    Smith, Mandler, Smith, Werner, Jacobo-witz & Fried and Patricia M. Silver, Miami Beach, for appellees.
    Before HUBBART, C. J„ and HENDRY and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We affirm the order dismissing with prejudice Shernoff’s complaint against the defendant Maison Grande Condominium Association, Inc., since it is apparent that the complaint against this defendant cannot be amended so as to state a cause of action. See Schweitzer v. Seaman, 383 So.2d 1175 (Fla. 4th DCA 1980). We conclude otherwise in respect to the defendants Schwartz against whom a cause of action might possibly lie if properly pleaded. While the trial court did not err in dismissing the complaint against the defendants Schwartz, the dismissal with prejudice was inconsistent with the policy of allowing litigants to amend pleadings freely in order that causes may be tried on their merits. Weiner v. Lozman and Weinberg, P. A., 340 So.2d 1247 (Fla. 3d DCA 1977); Richards v. West, 110 So.2d 698 (Fla. 1st DCA 1959). Accordingly, the trial court’s order is affirmed in part and reversed in part with directions to allow Shernoff to amend his complaint against the defendants Schwartz.

      . The order on appeal is limited to the defendant Maison Grande Condominium Association, Inc. and the defendants Schwartz. The complaint against the defendant Schmidt is not before us.


text:
    The STATE of Florida, Appellant, v. Melanie LOKITZ, Appellee.
    No. 80-1924.
    District Court of Appeal of Florida, Third District.
    July 7, 1981.
    Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellant.
    James P. Ryan, North Miami, for appel-lee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

Reversed on the authority of State v. McGoey, 399 So.2d 495 (Fla. 3d DCA 1981).


text:
    Eduardo SANTIAGO, Appellant, v. Carmen E. SANTIAGO, Appellee.
    No. 81-251.
    District Court of Appeal of Florida, Third District.
    July 7, 1981.
    Bernard A. Wieder, Miami Beach, for appellant.
    Robert M. Brake, Coral Gables, for appel-lee.

      Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).


text:
    The STATE of Florida, Petitioner, v. Herbert SANDS, Respondent.
    No. 81-796.
    District Court of Appeal of Florida, Third District.
    July 7, 1981.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for petitioner.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for respondent.
    Before HUBBART, C. J., and HENDRY and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The Writ of Certiorari is granted and the order excluding the testimony of a witness is quashed on the authority of State v. Banks, 349 So.2d 736 (Fla. 3d DCA 1977); State ex rel. Gerstein v. Durant, 348 So.2d 405 (Fla. 3d DCA 1977); State v. Roig, 305 So.2d 836 (Fla. 3d DCA 1974); State v. DeVille, 258 So.2d 492 (Fla. 3d DCA), cert. denied, 267 So.2d 656 (Fla.1972).

It is so ordered.


text:
    Alvin STRACHEN, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1139.
    District Court of Appeal of Florida, Third District.
    July 7, 1981.
    Alvin Strachen, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Strachen v. State, 380 So.2d 487 (Fla.3d DCA 1980); Fla.R.App.P. 9.140(g).


text:
    Joseph P. DELCOCO, et ux, Appellants, v. MAXI, INC., Appellee.
    No. 80-1385.
    District Court of Appeal of Florida, Fifth District.
    July 8, 1981.
    Andrew A. Graham and James L. Rein-man, of Reinman, Harrell, Silberhorn, Moule & Boyd, P. A., Melbourne, for appellants.
    William J. Neale, Melbourne, for appel-lee.
   PER CURIAM.

APPEAL DISMISSED, sua sponte. See McCready v. Villas Apartments, 379 So.2d 719 (Fla. 5th DCA 1980).

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


text:
    Oliver MARSHALL, Appellant, v. STATE of Florida, Appellee.
    No. 80-1369.
    District Court of Appeal of Florida, Second District.
    July 8, 1981.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the revocation of appellant’s probation, but we remand this case for correction of the written revocation order. Affidavits were filed by appellant’s probation officer charging appellant with violating conditions (1), (2) and (5) of his probation. Condition (2) required payment of $10.00 per month for probation supervision. Appellant testified that he was financially unable to make these payments and the state failed to offer evidence showing otherwise. Absent evidence of appellant’s ability to pay, the trial court cannot properly find a violation of the condition requiring payment of supervisory costs. Abel v. State, 383 So.2d 325 (Fla.2d DCA 1980). However, the order revoking probation states that appellant violated condition (2) as well as conditions (1) and (5). Accordingly, the court should extract the reference to violation of condition (2) from its order. Brouillett v. State, 373 So.2d 449 (Fla.2d DCA 1979).

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


author: RYDER, Judge.

text:
    Ronald A. CORNETTE, Appellant, v. SHADYBROOK DEVELOPMENT CORP., d/b/a Shadybrook Village; Southeast First National Bank of Sarasota; Barnett Bank of Manatee County and Ellis Manasota Bank, Appellees.
    No. 80-1731.
    District Court of Appeal of Florida, Second District.
    July 8, 1981.

      George R. McLain of Harnden, McLain, Spivey & Dart, Chartered, Sarasota, for appellant.
    Ronald L. Collier of Rosin, Abel, Band, Brown & Russell, Chartered, Sarasota, for appellee Shadybrook Development Corp., d/b/a Shadybrook Village.
    Judith M. Goldman of Knowles, Blalock, Coleman, Landers & Walters, P. A., Bra-denton, for appellee Ellis Manasota Bank.
   RYDER, Judge.

Ronald A. Cornette appeals from the order denying his petition to set aside real property as homestead. We hold that there was no competent substantial evidence to support the denial and we reverse.

Appellant filed a complaint seeking to set aside real property as homestead and to enjoin levy of execution thereon. At trial, appellant testified that he moved to Manatee County in 1971 and was thereafter joined by his mother, Esther Vandeurzen. Mrs. Vandeurzen had no source of income and was dependent upon appellant for support. In 1973, appellant and his wife Jane purchased the property claimed as homestead in this action, a condominium apartment. Appellant and his wife moved into the condominium and Mrs. Vandeurzen moved into an apartment in Bayshore Gardens complex. Appellant remained the sole means of support of his mother.

The judgments of appellees resulted from loans to appellant’s music business and were recorded against appellant in 1974 and 1975. In 1976, Jane filed for divorce and appellant bought out her interest in the condominium. Appellant testified that he and his mother moved into the condominium the day after Jane moved out. However, Mrs. Vandeur-zen continued to lease the apartment at Bayshore Gardens. Appellant and his mother lived together in the condominium until appellant married his present wife, Ruth, in July 1978. Mrs. Vandeurzen would visit friends at her apartment and was able to sublet it for various times.

Donna Lucas, a neighbor of appellant, Sue Frolick, another neighbor, and Robert J. Borwitz all testified that appellant’s mother was living with him in the condominium during the time between appellant’s marriages. An employee of Florida Power & Light Company testified that the power bills at Mrs. Vandeurzen’s apartment for this period were essentially the same as the period the year before. An employe of General Telephone testified that long distance calls were charged to the apartment of Mrs. Vandeurzen during the period when she lived with appellant. The court entered judgment in favor of appellees and denied the relief sought.

Appellees do not suggest that the property was not homestead during appellant’s marriages, or that homestead status did not exist during the remaining period if appellant supported his mother residing with him. See Hill v. First National Bank of Marianna, 73 Fla. 1092, 75 So. 614 (1917). The issue addressed below and on appeal was whether Mrs. Vandeurzen actually resided with appellant. The judge below impliedly found that appellant failed to establish this.

The uncontradicted testimony of all witnesses was that Mrs. Vandeurzen lived with appellant. This included the testimony of two neighbors. We hold that the uncontradicted testimony of at least two disinterested parties cannot be ignored without reason. Hill v. Parks, 373 So.2d 376 (Fla.2d DCA 1979); Edwards v. Hardin Properties, Inc., 313 So.2d 82 (Fla.2d DCA 1975). Appellees relied on the fact that electricity was used and long distance phone calls were occasionally made from the other apartment during periods it was not subleased. This need not be inconsistent with Mrs. Vandeurzen’s residence with appellant, since she testified to visiting the apartment. The inference that she resided in the apartment is too remote to provide evidentiary weight of competent substantial evidence to support the lower court’s ruling.

The order below is REVERSED and the case REMANDED for entry of an order finding the property to be homestead, and further consistent proceedings.

SCHEB, C. J., and GRIMES, J., concur.


text:
    Donna L. DRAKE, Individually and Donna L. Drake, as Personal Representative of the Estate of David G. Drake, Deceased, Appellant, v. SUN BANK AND TRUST COMPANY OF ST. PETERSBURG, a Florida Corporation, Appellees.
    No. 80-2046.
    District Court of Appeal of Florida, Second District.
    July 8, 1981.
    John M. Edman of Meros, Coit, Edman, Meros, Smith & Meros, P. A., St. Peters-burg, for appellant.
    Mark E. Hungate and James C. Hadaway of Fowler, White, Gillen, Boggs, Villareal and Banker, P. A., St. Petersburg, for ap-pellee.
   RYDER, Judge.

Donna L. Drake appeals the dismissal of her complaint to recover for the death of her husband, alleging that a cause of action was pled therein. We agree and reverse.

This case came before the court originally in Drake v. Sun Bank and Trust Company of St. Petersburg, 377 So.2d 1013 (Fla. 2d DC A 1979), in a similar posture. We noted:

According to the complaint, appellant’s husband went to the Sun Bank and Trust company of St. Petersburg to transact some business. While in the bank parking lot, he was kidnapped, driven to a remote location in Pinellas County where he was robbed and murdered. Appellant alleged that the bank knew that its customers often carry cash and other valuable items while using the parking lot and it failed to have adequate security devices or personnel present to protect them. She contended that her husband’s murder was a direct and proximate result of the bank’s negligence in failing to provide protection and security in the parking lot.. ..

377 So.2d, at 1014.

In an amended complaint below, appellant added allegations that the bank is in a high crime area, provides less protection than other banks and that the bank’s security guards were negligent in allowing a dangerous condition to develop. Appellant further alleged that similar crimes occurred on or near the facilities, and that appellee should have had knowledge of the chance of an assault against a customer on their property.

We hold that the allegations in the amended complaint are sufficient to state a cause of action for negligence. See, e. g., Winn-Dixie Stores, Inc. v. Johstoneaux, 395 So.2d 599 (Fla. 3d DCA 1981). The order dismissing the complaint is REVERSED and the case REMANDED for further proceedings.

HOBSON, Acting C. J., and OTT, J., concur.


author: HOBSON, Acting Chief Judge.

text:
    STATE of Florida, Petitioner, v. Allen Alfred ENGLISH, III, Respondent.
    No. 80-2140.
    District Court of Appeal of Florida, Second District.
    July 8, 1981.
    James T. Russell, State Atty., and C. M. King, Asst. State Atty., Clearwater, for petitioner.

      Robert E. Jagger, Public Defender, and Dennis M. Lawler, Asst. Public Defender, Clearwater, for respondent.
   HOBSON, Acting Chief Judge.

The State of Florida seeks a writ of cer-tiorari to quash an order of the trial court which amended the sentence imposed against the respondent from a term of imprisonment to probation.

Respondent pled guilty to sixteen counts of forgery and uttering a forged instrument. As a result, the court placed him on probation. Shortly thereafter, respondent was charged with violating his probation, to which he pled guilty. On October 3, 1980, he was sentenced to three years in the state penitentiary, with all sentences to run concurrently. Respondent filed a petition for reconsideration of his sentence, and on October 29 the court entered an order granting his petition and placing the respondent on six years probation.

It is clear that the sentencing court retains jurisdiction to “reduce or modify” any legal sentence within sixty days of imposition. Fla.R.Crim.P. 3.800(b). While we recognize that the reconsideration of the sentence was timely, Florida courts have adopted the federal approach holding that the granting of probation does not constitute the correction or reduction of a sentence. Cuneo v. State, 335 So.2d 278 (Fla. 1976); Sweeting v. State, 390 So.2d 773 (Fla. 3d DCA 1980); accord, Stoddard v. State, 388 So.2d 11 (Fla. 2d DCA 1980); see Whitfield v. United States, 401 F.2d 480, 482 (9th Cir. 1968), cert. den., 393 U.S. 1026, 89 S.Ct. 630, 21 L.Ed. 570 (1969); Phillips v. United States, 212 F.2d 327 (8th Cir. 1954).

Accordingly, we grant the writ of certio-rari and quash the order of the trial court which purported to reduce respondent’s sentence.

OTT and RYDER, JJ., concur.


author: ORFINGER, Judge.

text:
    Richard Sylvester JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 79-11/T4-352.
    Fifth District Court of Appeal of Florida, Fifth District.
    Oct. 22, 1980.
    Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Judge.

James appeals his conviction for burglary of a dwelling, attempted sexual battery with great force, and robbery. His principal attack is to the admission into evidence of a discovery deposition of the victim who died after the deposition was taken, but prior to trial.

Appellant contends that the use of the deposition at trial violates his Sixth Amendment rights of confrontation and cross-examination; that Rule 3.220(d), Florida Rules of Criminal Procedure, precludes the use of the deposition for any purpose other than contradiction or impeachment of the deponent unless the procedure prescribed by Rule 3.190(j), Florida Rules of Criminal Procedure, is complied with; and that the State failed to show a proper predicate for use of the deposition.

The record shows that appellant was not in custody, but was free on bond prior to trial. Appellant’s counsel took the deposition in question. Nevertheless, appellant contends that his rights of confrontation were violated when the deposition was introduced at trial, because he was not present when it was taken, and relies on State v. Basiliere, 353 So.2d 820 (Fla.1977). There is one very significant difference in the factual situation here as compared to Basiliere. Here, defendant was free on bond and was therefore not prevented from attending the deposition. In Basiliere, defendant was incarcerated and was never notified of the deposition or given the opportunity or right to attend. The Rules of Criminal Procedure accentuate this distinction by providing that where the procedure is followed to perpetuate testimony, a defendant in custody shall be produced at the deposition, but a defendant not in custody “may be present at the examination, but his failure to appear after notice shall constitute a waiver of his right to be present.” Rule 3.190(j), Fla.R.Crim.P. In this case, appellant was not in custody, the deposition was taken by his attorney, whose failure to have appellant present may have been trial strategy or a desire not to again expose appellant to the victim , but in any event could very well have been a waiver of defendant’s right to be present and to confront the deponent. McArthur v. State, 303 So.2d 359 (Fla. 3d DCA 1974). See also, Chapman v. State, 302 So.2d 136 (Fla. 2d DCA 1974).

Nevertheless, despite the persuasive argument by the State that the right of confrontation is not involved here because defendant was not in custody so that his absence from the examination was voluntary, thus a waiver, the State cannot overcome the procedural hurdle established by the Supreme Court in Basiliere. It must be noted that here, as in Basiliere, the deposition was taken by defendant’s counsel for discovery purposes, and no attempt was made by either party to perpetuate testimony under Rule 3.190(j), Florida Rules of Criminal Procedure. In holding that a discovery deposition of a witness who died before trial was not admissible, the Supreme Court said:

As to the second question certified, we hold that Rule 3.220(d), Florida Criminal Procedure Rules, providing that depositions may be used for the purpose of contracting or impeaching testimony of the deponent as a witness provides the exclusive use of depositions in criminal proceedings unless Rule 3.190(j), Florida Criminal Procedure rules, is met.

353 So.2d at 825.

Again we are convinced that this statement was bottomed on the proposition that the use of an out of court statement in these circumstances violated defendant’s right of confrontation under the Sixth Amendment, and that the result would have been the same even had he been present.

Although this interpretation seems to produce an untoward result, we are without power to alter a rule of law as construed and established by the Supreme Court. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). However, in the light of a recent decision of the U.S. Supreme Court, further discussion is warranted.

Sworn testimony given at prior hearings has been held admissible under certain circumstances. When a re — trial becomes necessary, the prior trial testimony of a witness unavailable for the second trial has been held properly admitted because of the full right of confrontation and cross-examination available to defendant at the first trial. Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895); Blackwell v. State, 79 Fla. 709, 86 So. 224 (1920). The United States Supreme Court has also recognized the admissibility into evidence of a witness’ testimony taken at a preliminary hearing,

Although noting that the preliminary hearing is ordinarily a less searching exploration into the events of a case than a trial, we recognized that “there may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demand of the confrontation clause where the witness is shown to be actually unavailable.”

California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).

In Richardson v. State, 247 So.2d 296 (Fla.1971), our Supreme Court held that a state witness could testify to his recollection of a deceased witness’ testimony at a preliminary hearing when the testimony at the preliminary hearing was not reported, finding that there was a full and adequate opportunity to confront and cross-examine the witness. However, in Basiliere, the Supreme Court apparently refused to extend this doctrine to a discovery deposition, taking the position that such deposition does not satisfy the right to confrontation.

Yet, when the defendant sought discovery through means of deposition, it was only to ascertain facts upon which the charge was based. Being unaware that this deposition would be the only opportunity he would have to examine and challenge the accuracy of the deponent’s statements, defendant could not have been expected to conduct an adequate cross-examination as to matters of which he first gained knowledge at the taking of the deposition.

Basiliere, 353 So.2d at 824, 825.

In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the U.S. Supreme Court was again faced with a confrontation question as it pertained to the admissibility of out of court testimony. Defendant had been charged with possession of stolen credit cards and forgery of a check belonging to Bernard Isaacs. At a preliminary hearing held in Municipal Court, after the prosecution called several witnesses, defendant’s attorney called Isaacs’ daughter, Anita, and questioned her at some length, attempting to elicit from her an admission that she had given the checks and credit cards to the defendant. Anita denied this. Defendant’s attorney did not ask to have Anita declared hostile and did not request permission to place her on cross-examination. The prosecutor did not question Anita.

At the trial, Anita was unavailable to testify, and after defendant testified that Anita had given him the checks and the credit cards, the prosecution offered in evidence the transcript of Anita’s preliminary hearing testimony. Asserting a violation of the confrontation clause, the defense objected to the use of the transcript. The trial court admitted the transcript and defendant was convicted. The Ohio Supreme Court reversed, reasoning that there was little incentive to cross-examine a witness at a preliminary hearing, that the mere opportunity to cross-examine a witness at a preliminary hearing did not afford constitutional confrontation for purposes of trial, and since Anita had not been cross-examined, the use of her testimony violated the accused’s right of confrontation.

The Supreme Court granted certiorari and held the testimony admissible, recalling that:

The Court, however, has recognized that competing interests, if “closely examined,” Chambers v. Mississippi, 410 U.S., [284] at 295, 93 S.Ct., [1038] at 1045, [35 L.Ed.2d 297] may warrant dispensing with confrontation at trial. See Mattox v. United States, 156 U.S., at 243, 15 S.Ct., at 340 (“general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case”). Significantly, every jurisdiction has a strong interest in effective law enforcement, and in the development and precise formulation of the rules of evidence applicable in criminal proceedings. See Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 333, 78 L.Ed. 674 (1934); California v. Green, 399 U.S., at 171-172, 90 S.Ct., at 1941-1942 (concurring opinion).

Roberts, 100 S.Ct. at 2538.

The court then held that so long as the opportunity to cross-examine is present and counsel is not significantly limited in any way in the scope or nature of his cross-examination, there is substantial compliance with the purposes behind the confrontation requirement.

In sum, we perceive no reason to resolve the reliability issue differently here than-the Court did in Green. [California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)]. “Since there was an adequate opportunity to cross-examine [the witness], and counsel . . . availed himself of that opportunity, the transcript . . . bore sufficient ‘indicia of reliability’ and afforded ‘ “the trier of fact a satisfactory basis for evaluating the truth of the prior statement.” ’ ” Ibid.

100 S.Ct. at 2542, 2543.

There is no discovery practice in federal criminal procedure, but the discovery questioning here is quite similar in effect to the preliminary hearing testimony in Roberts. In the light of Basiliere, we hold the discovery deposition inadmissible here, but since Basiliere appears to be bottomed on the confrontation violation, notwithstanding the reference to the Rules of Criminal Procedure, we deem it appropriate to ask the Supreme Court to review its holding in Basiliere in the light of Roberts. The death or unavailability of a witness is often not foreseeable, so the need to perpetuate testimony cannot always be anticipated. It would seem that the rules of procedure should “give way to considerations of public policy and the necessities of the case” where, as here, defense counsel has an adequate opportunity to cross examine the witness and avails himself of that opportunity. We therefore certify the following question to the Supreme Court of Florida as one of great public importance, the answer to which will have a great effect on the proper administration of justice:

Is a discovery deposition taken under Florida Rules of Criminal Procedure 3.220(d) by defendant’s counsel, with defendant present or with his presence waived, admissible in evidence against defendant at the trial of the criminal charge against him when the witness has died or is otherwise unavailable for trial, in the light of the decision of the United States Supreme Court in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).

REVERSED and REMANDED for a new trial. Question certified.

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

      . She had previously identified him when she was confined to the hospital following the attack.

      . Basiliere leaves the impression that the defendant’s absence from the deposition was not the basis for the decision. Rather, it is the fact that in an ordinary discovery deposition not taken to perpetuate testimony, the interrogation is merely to ascertain facts on which the charge is based, and does not provide the essential opportunity or right of full cross-examination which is the cornerstone of the Sixth Amendment right to confrontation. Id., at 824.