author: ADKINS, Justice. EHRLICH, Justice,

text:
    John Earl BUSH, Appellant, v. STATE of Florida, Appellee.
    No. 62947.
    Supreme Court of Florida.
    Nov. 29, 1984.
    Rehearing Denied Jan. 31, 1985.

      Martha C. Warner of the Law Offices of Martha C. Warner, Stuart, for appellant.
    Jim Smith, Atty. Gen., and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   ADKINS, Justice.

John Earl Bush was convicted of the first-degree murder of Frances Slater. The trial judge imposed the death penalty in accordance with the jury’s advisory sentence recommendation. Bush appeals from the conviction and the sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. Having reviewed the record and considered the issues presented on appeal, we find no reversible error and affirm Bush’s conviction and sentence.

The evidence at trial demonstrated the following events. At 3:00 a.m. on April 27, 1982, Frances Slater was abducted from the convenience store where she worked. Incident to the kidnapping, the store’s cash register and floor safe were robbed of approximately $134. Later that day, the victim’s body was discovered thirteen miles from the store. She had a stab wound in her abdomen and had been shot once in the back of her head at close range.

At trial, a delivery person for the local newspaper testified that she was passing by the store between 2:30 and 3:00 a.m., and saw a car in the parking lot occupied by one black man.

Inside the store were two black men with another person. In a photo lineup, she identified Bush’s car and identified Bush as being one of the men in the store.

Four taped statements given by Bush were played during the trial. These constitute the only known version of the events and are presented by Bush in the light most favorable to him. His statements are to the effect that he did hot realize that his accomplices, Alfonso Cave, “Pig” Parker and Terry Johnson, were planning to rob the convenience store, and that during and after the robbery he was under their domination. Bush states that after the robbery, they drove toward Indiantown, when his accomplices ordered him to stop. The victim was pushed out of the car and Bush avers that he intended to set her free. However, the accomplices decided that Slater might be able to identify them and they told Bush to dispose of her. Bush, not desiring to kill the victim, faked a blow at her with his knife and stabbed her superficially. Slater fell to the ground and an accomplice, Parker, shot her.

The jury returned a verdict of guilty on the charges of first-degree murder, robbery with a firearm, and kidnapping. Subsequent to the sentencing hearing, the jury recommended, in a 7-5 advisory sentence, that the death penalty be imposed. The trial judge, citing three aggravating factors and no mitigating factors, sentenced Bush to death.

CONVICTION

On appeal Bush raises ten points which will be addressed in order of their presentation. In the first point on appeal, Bush contends that the trial judge should have conducted an inquiry, as in Richardson v. State, 246 So.2d 771 (Fla.1971), or granted a mistrial because a state investigator’s testimony contradicted his earlier deposition. This argument is without merit.

A Richardson inquiry is necessary only when there is a discovery violation and an objection based on the alleged violation. Richardson, 246 So.2d at 774; Lucas v. State, 376 So.2d 1149, 1151 (Fla.1979). In the instant case, investigator Forte stated in his deposition that Charlotte Grey, a clerk from a nearby convenience store which had been visited by Bush had not identified any photographs. At trial, Forte testified that witness Grey did identify Bush’s photograph during the photo lineup. He explained that the inconsistency arose from defense counsel having asked two different questions. The prosecutor’s failure to inform the defense of this change of testimony is not a discovery violation and does not constitute the absolute legal necessity required for a mistrial. See Dunn v. State, 341 So.2d 806, 807 (Fla. 3d DCA 1977).

When testimonial discrepancies appear, the witness’ trial and deposition testimony can be laid side-by-side for the jury to consider. This would serve to discredit the witness and should be favorable to the defense. Therefore, unlike failure to name a witness, changed testimony does not rise to the level of a discovery violation and will not support a motion for a Richardson inquiry.

In his second point on appeal Bush argues that his confessions were inadmissible because they were procured through improper influence and without full benefit of the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). On the morning of May 4, 1982, Bush went to the Martin County Sheriff’s Department to inquire about his car, which had been confiscated pursuant to a search warrant. He was fully advised of his rights, executed a waiver, then attempted to establish an alibi for the night of the murder.

The deputy sheriffs requested him to accompany them to West Palm Beach to substantiate the alibi. He was not under arrest and was free to refuse the request. Instead, Bush accompanied two officers to West Palm Beach to the house where Bush said they could meet a witness who would support his alibi.

When it became clear that the alibi witness would not appear, Bush told the officers that they did not have to wait any longer because the witness would not be able to help him. Bush then proceeded, in this second statement, to admit complicity in the crime. At the beginning of questioning, the officer asked Bush if he was giving the statement voluntarily, if he had been read his rights previously, if he understood those rights and was willing to voluntarily deliver the information. He responded affirmatively to each question.

Bush claims that this second statement was made without benefit of a Miranda warning. We do not agree. Although it had been eleven hours since the full recitation of his rights, Bush stated that he was aware of his rights and desired to waive those rights. There is no requirement that an accused be continually reminded of his rights once he has intelligently waived them. Biddy v. Diamond, 516 F.2d 118, 122 (5th Cir.1975), cert. denied, 425 U.S. 950, 96 S.Ct. 1724, 48 L.Ed.2d 194 (1976); Lucas v. State, 335 So.2d 566 (Fla. 1st DCA 1976).

Bush also contends that the vol-untariness of his statements was vitiated by the implied suggestion by the investigating officers that he would benefit if he confessed. This Court has stated that although a police interrogator must neither abuse a suspect nor seek to obtain a statement by coercion or inducement, the interrogator’s job is to gain as much information about the alleged crime as possible without violating the suspect’s constitutional rights. Stevens v. State, 419 So.2d 1058, 1063 (Fla.1982). The confession must be the product of a rational intellect and free will. Townshend v. Sain, 372 U.S. 293, 307, 83 S.Ct. 745, 754, 9 L.Ed.2d 770 (1963). In addition, we have previously held that a confession is not rendered inadmissible because the police tell the accused that it would be easier on him if he told the truth. Paramore v. State, 229 So.2d 855, 858 (Fla.1969).

On this point, the instant case is essentially similar to La Rocca v. State, 401 So.2d 866, 868 (Fla. 3d DCA 1981), where police statements that minimized the defendant’s action were held not to be coercive. Under the totality of the circumstances, the statements made to Bush did not overcome his will and produce the confession. More likely, it was Bush’s realization that he had failed to substantiate an alibi which caused him to confess and thereby admit a more favorable participation in the murder.

Bush’s third point on appeal contests the admission of certain photographs which he states were inflammatory and prejudicial. Exhibit fifteen, a blowup of the victim’s bloody face, was taken at the morgue and admitted solely to identify Frances Slater. Exhibit twenty-one was a close-up of the gunshot wound to the victim’s head.

The test of admissibility of photographs in situations such as this is relevancy and not necessity. Photographs are admissible where they assist the medical examiner in explaining to the jury the nature and manner in which the wounds were inflicted. Welty v. State, 402 So.2d 1159, 1163 (Fla.1981); Bauldree v. State, 284 So.2d 196, 197 (Fla.1973). In the instant case, exhibit twenty-one was used in order to assist the medical examiner in explaining the external examination of the victim. This exhibit was clearly admissible as an aid in illustrating to the jury what the examiner observed during his examination. Exhibit fifteen, though taken away from the scene, is treated no differently than exhibit twenty-one. We have repeatedly stated that:

[T]he current position of this Court is that allegedly gruesome and inflammatory photographs are admissible into evidence if relevant to any issue required to be proven in a case. Relevancy is to be determined in the normal manner, that is, without regard to any special characterization of the proffered evidence. Under this conception, the issues of “whether cumulative”, or “whether photographed away from the scene,” are routine issues basic to a determination of relevancy, and not issues arising from any “exceptional nature” of the proffered evidence.

State v. Wright, 265 So.2d 361, 362 (Fla.1972) (emphasis supplied). See Henninger v. State, 251 So.2d 862, 864 (Fla.1971); and Meeks v. State, 339 So.2d 186 (Fla.1976). Bush argues that exhibit fifteen was unduly prejudicial because it was gruesome and may have made a crucial difference in the jury’s recommendation in this case. In Williams v. State, 228 So.2d 377 (Fla.1969), this Court noted that similarly gruesome photographs depicted a view which was “neither gory nor inflammatory beyond the simple fact that no photograph of a dead body is pleasant.” Id. at 379. The same rationale applies here, notwithstanding the potential for swaying the jury during the sentencing phase. We require only that the photograph not be so shocking in nature that it defeats the value of its relevancy. Id. These pictures were admissible.

In point four, Bush argues that the trial court erred in excluding a potential juror on a challenge for cause. He cites Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and Lockett v. Ohio 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), for the proposition that jury veniremen may be excluded only if they demonstrate an “unmistakeably clear” attitude toward the death penalty which would prevent them from making an impartial decision as to the defendant’s guilt. See also Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980).

The following constitutes the pertinent portion of the statements of the juror excluded in this case:

Prosecutor: “Do you know of any reason why anything outside might come into it, other than what you hear here?”
Juror: “I don’t know if I could take the responsibility of committing one to death. I just don’t know if I could handle that.”
Prosecutor: “Let me point out two things to you. First, your sentence is only advisory. The final decision, responsibility and burden lies with His Honor, the Judge ... Would that in any way cause you to change your opinion as to whether or not you could?”
Juror: “I just don’t think I could handle the responsibility of condemning somebody. I think it’s up to God.”
Prosecutor: “And you feel like that would affect you even in the first stage, in determining the guilt or the innocence, knowing if you rendered a verdict of guilty of murder in the first degree that the man could be put to death, you feel that it could affect you?”
Juror: “I feel it would be a problem for me, myself, in my heart.”
Defense Counsel: “I understand, of course, sympathy will enter into practically any case _ It’s not anything that is unique to this case or any particular type of case. Do you understand that? How would you feel about it with that in mind?”
Juror: “I don’t know. It would just be a very difficult thing to do.”
Defense counsel: “Do you think you could do it, put sympathy out of your mind and base your verdict on the law and the evidence?”
Juror: “No, I don’t think so.”

We do not think that it was error to excuse the juror. This juror's attitude toward the death penalty is firmly grounded and would clearly prevent her from rendering an impartial decision.

In point five, Bush argues that our decision in Knight v. State, 338 So.2d 201 (Fla.1976), should be narrowed or distinguished because of the facts of this case. Knight held that an indictment charging premeditated murder would permit the state to proceed on either the theory of premeditated murder or felony murder. Bush claims that since he did not, in fact, commit the actual murder, Knight is inapplicable. We disagree. Whether or not Bush committed the actual murder is for the jury to determine. The jury could have decided that Bush was guilty of premeditated murder, or the jury could have convicted based upon the felony murder. In either case, Knight is applicable and Bush was not prejudiced by not knowing the specific theory upon which the state would proceed. See O’Callaghan v. State, 429 So.2d 691, 695 (Fla.1983); State v. Pinder, 375 So.2d 836, 839 (Fla.1979).

Bush argues in point six that the trial court’s rejection of a third-degree murder instruction was prejudicial error. We disagree. Third-degree murder is defined as “the unlawful killing of a human being, when perpetrated without any design to affect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than, ... robbery ... [or] kidnapping _” Section 782.-04(4), Florida Statutes (1981) (emphasis supplied). Since the jury found Bush guilty of both kidnapping and robbery, failure to instruct on third-degree murder is at most harmless. See also State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978).

SENTENCING

In point seven Bush raises a variety of objections relative to the constitutionality of the Florida capital sentencing statute. Each of his contentions has been previously addressed and we do not deem it necessary to revisit them. See e.g., Proffitt v. Florida, 428 U.S. 242, 252, 96 S.Ct. 2960, 2966, 49 L.Ed.2d 913 (1976).

In Bush’s eighth point on appeal he challenges the trial judge’s “repeated” instructions to the jury that a sentencing decision requires a majority. We have held that such an instruction is erroneous. Harich v. State, 437 So.2d 1082, 1086 (Fla.1983), cert. denied, _ U.S. _, 104 S.Ct. 1329, 79 L.Ed.2d 724 (1984).

Here, although the jury charge contained some objectionable statements, the trial judge explicitly corrected himself by explaining: “if by six or more votes the jury determines that [Bush] should not be sentenced to death, your advisory sentence will be [imposition of a life sentence.]” (Emphasis supplied.) As in Harich, it affirmatively appears that the jury was not confused by the partial inconsistency of the instruction. Since the body of the instruction was correct and there was no objection or modification suggested, we find no prejudicial error.

Bush argues in his ninth point on appeal that the trial judge should have instructed the jury during the sentencing phase that a sentence of death may not be imposed absent intent to kill or contemplation that life would be taken. In support, Bush cites Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), which held that proof of intent to kill or contemplation of death is a necessary prerequisite to imposition of the death penalty. 458 U.S. at 794, 102 S.Ct. at 3375. Bush claims that failure to give this specific instruction to the jury may have resulted in a death sentence simply because the jurors believed Bush to be a “bad fellow.”

We disagree with this contention on the facts of this case. Here, we do not have a mere passive aider and abettor as in En-mund, where the only participation by En-mund was as driver of the getaway car from what he supposed was only a robbery and not a murder. The facts of this case show that Bush was a major, active participant in the convenience store robbery and his direct actions contributed to the death of the victim. The degree of Bush’s participation is sufficient to support a finding that his involvement constituted the intent or contemplation required by Enmund.

Bush raises numerous issues in point ten, only one of which merits our discussion. He argues that during the sentencing phase the prosecutor made an appeal for sympathy and revenge for the family of the victim in the following statement to the jury:

“I ask you, don’t consider the sympathy that Mr. and Mrs. Campbell have. Don’t consider that when Mr. and Mrs. Campbell sit down to Thanksgiving dinner just three days from now that they are going to look across the table and they are going to look at Cathy and they are going to see Frances Julia Slater, the identical twin sister. If sympathy had any part of it, think of what they go through. And every time they sit down and look at her, this whole incident is going to come back ...”

Bush contends that this appeal for retribution was devastating inasmuch as the jury vote was 7-5 in favor of imposing the death penalty. We disagree. We have previously held that although “the rule against inflammatory and abusive argument by a state’s attorney is clear, each case must be considered upon its own merits and within the circumstances pertaining when the questionable statements are made .... ” Darden v. State, 329 So.2d 287, 291 (Fla.1976), cert. dismissed, 430 U.S. 704, 97 S.Ct. 1671, 51 L.Ed.2d 751 (1977).

In Darden, for example, the state continuously referred to the defendant as an animal and played upon the necessity of restraining him permanently. We held that within the context of the argument, that reference to the defendant did not constitute prejudice requiring a new sentencing hearing. The instant case is not unlike Darden. We find that the above appeal to the jury’s sympathies was of minor impact and does not merit re-sentencing. The statements are not a clear abuse, nor do they rise to the magnitude of a denial of fundamental fairness.

Teffeteller v. State, 439 So.2d 840 (Fla.1983), is not inapposite. There, we stated:

Comments of counsel during the course of a trial are controllable in the discretion of the trial court, and an appellate court will not overturn the exercise of such discretion unless a clear abuse has been made to appear. Paramore v. State, 229 So.2d 855 (Fla.1969), vacated, 408 U.S. 935 [92 S.Ct. 2857, 33 L.Ed.2d 751] (1972).

Id. at 845. Only where clear prosecutorial abuse exists will we automatically reverse for resentencing. Teffeteller, 439 So.2d at 845. Here, we cannot say that the “line was clearly drawn too far” as in Teffeteller. Id.

Bush’s convictions and sentences are affirmed.

It is so ordered.

BOYD, C.J., and ALDERMAN and SHAW, JJ., concur.

EHRLICH, J., concurs in conviction and specially concurs with an opinion of the sentence, in which ALDERMAN and SHAW, JJ., concur.

OVERTON and McDONALD, JJ., concur in the conviction, but concur in result only of the sentence.

EHRLICH, Justice,

specially concurring.

I am in complete agreement with the majority, but I write separately to address a problem arising with increasing frequency in criminal cases, namely, prosecutorial misconduct in unfairly enflaming the jury’s emotions in closing argument. On the facts of this case, it is clear that the prosecutor’s description of the ongoing suffering of the victim’s family did not fundamentally prejudice the defendant so as to require a new sentencing procedure. It is equally clear that the argument was irrelevant and improper.

Section 921.141, Florida Statutes, sets forth those factors which may be presented to a jury in support of the prosecution’s request for a recommendation of death. The suffering of the survivors is not relevant to any of the factors listed. The purpose of the death penalty statute as now drafted is to insulate its application from emotionalism and caprice. This Court has long condemned prosecutorial arguments which appeal to emotion rather than to reason. See, e.g., Teffeteller v. State, 439 So.2d 840 (Fla.1983), Singer v. State, 109 So.2d 7 (Fla.1959); Clinton v. State, 53 Fla. 98, 43 So. 312 (1907). I can think of few arguments which are more calculated to arouse an intense emotional response in a jury than the graphic portrayal of the survivors’ bereavement. I can imagine no set of facts on which this would be proper argument.

Unfortunately, in spite of the clear teaching of this and other courts that such argument is improper, prosecutors continue to indulge in it. This is contrary to the ethics of the profession generally and in violation of the duty, as state attorneys, to seek justice, not merely convictions. Zealous representation of society’s interest does not require society’s advocate to overstep the bounds of professional restraint. Our holding that, in this case, the improper argument does not require a new sentencing trial must not be seen as our condoning such impropriety. Continued flouting of ethical limitations of prosecutorial conduct can be corrected through professional discipline without burdening society at large or the criminal justice system with the cost of retrying the case.

ALDERMAN and SHAW, JJ., concur.


source: Caselaw Access Project

author: SMITH, Judge. WENTWORTH, Judge,

license: Public Domain

text:
    SHELL OIL COMPANY, Appellant, v. DEPARTMENT OF REVENUE, Appellee.
    No. AS-159.
    District Court of Appeal of Florida, First District.
    April 3, 1984.
    Rehearing Denied Nov. 6, 1984.

      Robert B. Glenn, Jr., of Glenn, Rasmussen, Fogarty & Merryday, Tampa, Elizabeth C. Burton, Houston, Tex., for appellant.
    Jim Smith, Atty. Gen., Thomas L. Barn-hart, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   SMITH, Judge.

Shell appeals from the trial court’s final summary judgment holding, among other things, that the Department’s treatment of Shell’s income derived from the sale in the United States of oil from wells located on the outer continental shelf during the years from 1972 to 1975 does not violate the Outer Continental Shelf Lands Act (OCS-LA), 43 U.S.C. § 1333(a)(2)A. The Department cross-appeals the trial court’s finding that Shell may include all of the original costs” of its oil and gas wells, in particular its intangible drilling and development costs, in the property factor of the apportionment formula for determining its Florida corporate taxes, Section 214.71, Florida Statutes (1972). We affirm the final summary judgment in its entirety.

Shell’s primary issue is apparently one of first impression in this state and elsewhere, namely, whether 43 U.S.C. § 1333(a)(2)A, infra, prohibits Florida from taxing its income from the sale in the United States of oil extracted from its outer continental shelf wells. We reject Shell’s position that it does, for all of the oil from these wells was brought into the United States, refined in the United States, and then sold in the United States. Florida is thus assessing corporate income taxes on income derived from sales occurring in the United States, so the significant- event for purposes of that tax is the sale of the oil, not the removal of the oil from the outer continental shelf. Taking Shell’s argument to its logical conclusion, a state could not impose any tax, such as a sales tax, for any product it derives from its outer continental shelf wells. We cannot agree that an interpretation having such sweeping consequences was ever intended by the Congress, and we therefore reject it.

As a corollary argument Shell contends that Section 220.02(5), Florida Statutes, requires the complete exclusion of income derived from outer continental shelf oil because including that income would cause a conflict with a federal statute, in this case the OCSLA. We view this contention as nothing more than a restatement of Shell’s first issue discussed above and therefore reject it.

Shell also argues that there should be a direct correlation between the income subject to the Florida corporate tax and the property, payroll and sales included in the apportionment formula, citing Heftier Construction v. Department of Revenue, 334 So.2d 129 (Fla. 3rd DCA 1976). Before analyzing this issue, however, a brief description of Florida’s method of apportioning corporate taxes may be useful.

The income of a business, such as Shell, operating both within and without Florida, is apportioned to Florida in accordance with a three-factor formula. While the normal three-factor formula is the arithmetic average of three factors, a corporation’s property, payroll, and sales, Florida’s formula is double-weighted in favor of the sales factor. Each apportionment factor is therefore the ratio of Florida business activity (property, payroll, and sales) to “everywhere” business activity (property, payroll, and sales). Sections 214.71, and 220.15, Florida Statutes. “Everywhere” means “in all states of the United States, the District of Columbia, or any political subdivision of the foregoing.” Section 220.15(3), Florida Statutes.

Shell excluded its outer continental shelf income from income apportionable to Florida by subtracting from its adjusted federal taxable income the wellhead fair market value of the oil recovered at its outer continental shelf drilling installations, less related expenses. It also excluded outer continental shelf real and tangible personal property from the denominator of the property factor, outer continental shelf payroll from the denominator of the payroll factor, and outer continental shelf sales from the denominator of the sales factor of the apportionment formula. It now urges, as it did before the trial court, that this process is justified by the Heftier decision. Shell further argues that the Department’s inclusion of sales of oil derived from the outer continental shelf wells in the denominator of the sales factor is inconsistent with its exclusion of outer continental shelf property and payroll from the denominators of the property and payroll factors.

Addressing the latter contention first, we find that the Department properly computed Shell’s sales, property, and payroll “everywhere” in the denominators of the sales, property, and payroll factors. “Everywhere” is defined by Section 220.-15(3) to include “all states of the United States, the District of Columbia, or any political subdivision of the foregoing.” The outer continental shelf, however, is not a state of the United States, the District of Columbia, or a political division thereof. Rather, it is a part of the United States, 43 U.S.C. § 1332(a), Internal Revenue Code, § 638, so while the sales in the United States of oil derived from outer continental shelf wells occurred in the various states of the United States defined as “everywhere,” outer continental shelf property and payroll do not come within the parameters of “everywhere,” Section 220.15(3), and thus cannot be included in the denominators of the property and payroll factors.

We likewise reject Shell’s contention that Heftier mandates a direct correlation between the income subject to tax in Florida and the property, payroll, and sales included in the apportionment formula. Simply stated, the profits and losses involved in Heftier were earned in Puerto Rico and were therefore considered foreign, while the income in Shell’s case was realized totally from sales of oil in the various states of the United States.

We also must reject the Department’s argument on cross-appeal to the effect that Shell should not be allowed to include drilling and development costs in the property factor in the apportionment formula. Property, both real and tangible, is to be valued at original cost, Section 214.71(1), and the Department has defined “original cost” as follows:

As a general rule “original cost” is deemed to be the basis of the property for federal income tax purposes (prior to any federal adjustments) at the time of acquisition by the taxpayer and adjusted by subsequent capital additions or improvements thereto and partial disposition thereof, by reason of sale, exchange or. abandonment, etc.

Florida Administrative Code Rule 12C-1.-15(4)(b)5. Relying on this rule, the Department urges that Shell’s intangible drilling and development expenditures have no recognizable cost or other basis sufficient to permit the inclusion of those costs in the property factor because they have been deducted by Shell for federal income tax purposes in accordance with Section 263(c) of the Internal Revenue Code. We note that when Shell did so, according to the federal rule, it also forfeited any right to include these costs in the federal tax basis of the property. However, while the Internal Revenue Code may so treat these costs, there is nothing in Rule 12C-1.15(4)(b)5 that mandates how these capital additions for improvements are to be treated, for Florida tax purposes, because of a taxpayer’s election, as permitted under Section 263(c) of the Internal Revenue Code, to either deduct these intangible drilling costs from his gross income or to capitalize those costs in following years. Since Shell’s capitalization of these costs is permissible “for federal income tax purposes,” Shell’s procedure conforms to the Department’s rule.

AFFIRMED.

WENTWORTH and JOANOS, JJ., concur.

ON MOTION FOR REHEARING

Shell petitions this court for rehearing; the Department on cross-appeal petitions for rehearing and/or clarification. We find that Shell’s petition fails to convince us that our original opinion misconstrued or misapplied the law or the facts involved in Shell’s points on appeal. Accordingly, Shell’s petition for rehearing is denied.

We also deny cross-appellant Department of Revenue’s motion for rehearing and clarification. The motion is directed to that portion of our decision affirming the trial court’s final summary judgment prohibiting the department from excluding Shell’s intangible drilling and development costs (IDC’s) from Shell’s property factor in the department’s apportionment formula.

The department now urges that this court overlooked Section 220.42(1), Florida Statutes. That section provides, in pertinent part:

(1) For purposes of this code, a taxpayer’s method of accounting shall be the same as such taxpayer’s method of accounting for federal income tax purposes .... (e.s.)

This provision, the department argues, precludes Shell from classifying IDC’s as expenses in its federal income tax returns (thus effecting a reduction in taxable income for the year in which the expenditures are made), while at the same time classifying them as capital assets (treated as a part of the cost of acquisition of the oil well), for Florida income tax purposes. Shell’s unrefuted affidavits established that Shell, for years, has maintained corporate financial records treating these IDC’s as capital assets, thus properly treatable, under Shell’s view, as a part of the “original cost” as this terminology is used in Rule 12C-1.15(4)(b)5, Florida Administrative Code, both in the numerator and denominator of the apportionment formula.

There is merit in the department’s position that the statute (Section 220.42(1)) would indicate that IDC’s should be treated the same in the apportionment formula as in Shell’s federal income tax returns. We may speculate that had this statute been urged in the court below, in support of the department’s interpretation of its rule, the trial judge’s decision might well have been favorable to the department on this issue. However, so far as we have been able to determine from the record, the statute was never mentioned below. Neither was the statute cited in the department’s brief in this court, nor in oral argument. Furthermore, the issue as presented in this court, as framed by the department, was “[Wjhether the definition of ‘original cost’ provided in Rule 12C-1.15(4)(b)5, F.A.C., is a valid exercise of delegated legislative authority.” We find that the rule itself contains no reference to Section 220.42(1), although under the rule-making provisions, Section 120.54(7), Florida Statutes, each rule is required to contain a reference to “the section or subsection of the Florida Statutes or Laws of Florida being implemented, interpreted, or made specific.” The basic issue in this case, as indicated in our original opinion, was whether the procedure followed by Shell conformed to the rule, or was prohibited by it. The trial court, after consideration of the pleadings and the evidence produced on Shell’s motion for summary judgment, determined this issue in favor of the taxpayer. This court affirmed that ruling, which we find to be consistent with the rule governing construction of taxing enactments in favor of the taxpayer. See, Department of Revenue v. Brookwood Associates, Ltd., 324 So.2d 184 (Fla. 1st DCA 1975); Harris Corporation v. Department of Revenue, 409 So.2d 91, 93 (Fla. 1st DCA 1982) (Ervin, J. specially concurring).

Our disposition of the department’s motion for rehearing is mandated by the rule that authorities not cited and issues not raised in the brief or on oral argument cannot be raised for the first time on motion for rehearing. Price Wise Buying Group v. Nuzum, 343 So.2d 115 (Fla. 1st DCA 1977); Cartee v. Florida Department of Health and Rehabilitative Services, 354 So.2d 81 (Fla. 1st DCA 1977). The department’s motion for rehearing is therefore denied.

One final matter requires our attention. Shell has requested that we certify the question of whether the department is prohibited by 43 U.S.C. § 1333(a)(2)(A) (1981), from levying a corporate income tax on income derived from the outer continental shelf. Since this question is one of first impression, and is vitally important to the state’s ability to raise revenue via corporate income taxation, we grant Shell’s request, and certify the following question as being of great public importance, pursuant to Florida Rules of Appellate Procedure 9.030(a)(2)(A)(v):

WHETHER THE STATE OF FLORIDA IS PROHIBITED BY 43 U.S.C. § 1333(a)(2)(A) FROM IMPOSING A TAX UPON INCOME DERIVED FROM THE SALE IN THE UNITED STATES OF OIL EXTRACTED FROM THE OUTER CONTINENTAL SHELF?

Motion for rehearing DENIED, question certified.

JOANOS, J., concurs.

WENTWORTH, J., concurs and dissents with written opinion.

WENTWORTH, Judge,

concurring and dissenting on rehearing.

I agree with denial of appellant’s motion for rehearing but would grant cross-appellant’s motion and reinstate the Department’s determination of Shell’s property factor in the apportionment formula. Section 220.42(1), Florida Statutes, requires that for Florida income tax purposes Shell’s “method of accounting shall be the same as such taxpayer’s method of accounting for federal income tax purposes.” I would conclude upon reconsideration that this statutory language dictates a construction of Rule 12C-1.15(4)(b)5, F.A.R., to require that Shell’s method of accounting for federal income tax purposes, by which it deducted intangible drilling costs from gross income and precluded capitalization thereafter, determines the method of accounting by which the property factor shall be computed in the apportionment formula under the Florida code. I would reverse on cross appeal because I review the action of the trial court as if it had complied, as we should, with the mandate for judicial notice of pertinent Florida statutes in resolving this litigation. § 90.201, Florida Statutes; Barnett Bank of Jacksonville v. Jacksonville National Bank, 457 So.2d 535 (Fla. 1st DCA (Í984). The context of the present case is peculiarly unsuited to the application of a waiver doctrine against administrators in a way which subverts the terms of a statute merely because a rule, which functionally if not nominally implements all pertinent statutes, may not have been defended with perfection.

      . § 1333. Laws and regulations governing lands
      (a) Constitution and United States laws; laws of adjacent States; publication of projected State lines; international boundary disputes; restriction on State taxation and jurisdiction
      ******
      (2)(A) To the extent that they are applicable and not inconsistent with this subchapter or with other Federal laws and regulations of the Secretary now in effect or hereafter adopted, the civil and criminal laws of each adjacent State, now in effect or hereafter adopted, amended, or repealed are declared to be the law of the United States for that portion of the subsoil and seabed of the outer Continental Shelf, and artificial islands and fixed structures erected thereon, which would be within the area of the State if its boundaries were extended seaward to the outer margin of the outer Continental Shelf, and the President shall determine and publish in the Federal Register such projected lines extending seaward and defining each such area. All of such applicable laws shall be administered and enforced by the appropriate officers and courts of the United States. State taxation laws shall not apply to the outer Continental Shelf, (emphasis supplied)

      . 220.02 Legislative intent.—
      ******
      (5) It is the intent of the legislature that if there is included in any taxpayer’s net income subject to tax under this code any item or items of income which are determined to be improperly so included because of a conflict with any federal statute, the Constitution of the United States, or the state constitution, all such items of income shall be excluded from the net incomes of all taxpayers subject to tax under this code, but all other provisions of this chapter, and their application, shall not be invalidated or in any way impaired by such required exclusion of an item or items of income.

      . Although [the statute] was not called to the trial court’s attention, nevertheless it must be followed by this court because the statute controls the matter before us. Bedenbaugh v. Adams, 88 So.2d 765 (Fla.1956). 457 So.2d at 540.


author: PER CURIAM.

text:
    Alfred J. CORTINA, Appellant, v. Leda M. CORTINA, Appellee.
    No. 84-76.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 1984.
    Rehearing Denied Jan. 30, 1985.
    Horton, Perse & Ginsberg and Mallory Horton, Miami, for appellant.
    Greene & Cooper and Sharon L. Wolfe and Robyn Greene, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and FERGUSON, JJ.
   PER CURIAM.

While the trial court’s awards of permanent alimony and equitable distribution approach, if they do not reach, the outermost limits of permissible generosity, we are unable to find that they represent an abuse of discretion so as to permit reversal on appeal. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); Conner v. Conner, 439 So.2d 887 (Fla.1983).

Because, however, the effect of the final judgment is to place the wife in a financial position at least equal and likely superior to the appellant, it was error to assess any of her attorney’s fees against him. McIntyre v. McIntyre, 434 So.2d 61 (Fla. 5th DCA 1983); Lopez v. Lopez, 438 So.2d 984 (Fla. 3d DCA 1983); Golden v. Golden, 410 So.2d 945 (Fla. 3d DCA 1982), rev. denied, 419 So.2d 1197 (Fla.1982); Bullard v. Bullard, 380 So.2d 1090 (Fla. 3d DCA 1980).

Affirmed in part, reversed in part.


text:
    KEITHIE’S ROOFING CO. INC., a Florida corporation, Keith Wilson, Darrell Wilson, and Keithie’s Industrial Home Improvement Company, Inc., a Florida corporation, Appellants, v. LEE PARKS APARTMENTS, INC., a Florida corporation, Appellee.
    No. 84-859.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 1984.
    Rehearing Denied Jan. 30, 1985.
    Robert S. Korschun, Miami, for appellants.
    John A. Ritter, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and FERGUSON, JJ.
   PER CURIAM.

The default judgment entered below against the appellant, Keithie’s Roofing Co., on the co-defendant-appellee’s cross-claim was invalid for lack of jurisdiction over the person because Keithie’s was not served with process on the cross-claim as required. Elliott Enterprises, Inc. v. Serota, 436 So.2d 415 (Fla. 3d DCA 1983); Fundaro v. Canadiana Corp., 409 So.2d 1099 (Fla. 4th DCA 1982). Accordingly, the order under review denying Keithie’s motion pursuant to Fla.R.Civ.P. 1.540 to vacate the judgment is reversed and the cause remanded for further proceedings consistent herewith.


author: OTT, Judge.

text:
    Benny Lee WEBSTER, Appellant, v. STATE of Florida, Appellee.
    No. 84-388.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1984.
    Rehearing Denied Jan. 9, 1985.

      Jerry Hill, Public Defender, and David Dwiggins, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

The trial court departed from the sentencing guidelines when it sentenced appellant for robbery, burglary, and grand theft. Certain of the reasons relied upon by the trial court for departing are impermissible, i.e., other offenses for which no charges had been brought and no convictions secured. Nevertheless, we affirm.

The court gave a number of perfectly valid clear and convincing reasons for departing from the presumptive guidelines sentence. For example, he noted that the victims had suffered psychological harm, commenting their lives had been destroyed. See Green v. State, 455 So.2d 586 (Fla. 2d DCA 1984). He further noted it was a negotiated plea which included the dropping of certain charges and was negotiated before the sentencing guidelines became effective with the understanding that defendant could receive up to life in prison. See Green v. State, No. 84-14 (Fla. 2d DCA Sept. 19, 1984). Also, the court felt that the robbery was an outrageous, antisocial act against defenseless people. The victims were tied up and held prisoner. Florida Rule of Criminal Procedure 3.701(d)(ll) does not prohibit a court from considering aggravating circumstances and actions of the accused in the commission of the offense. See Smith v. State, 454 So.2d 90 (Fla. 2d DCA 1984).

We hold that a sentence departing from the guidelines can be upheld on appeal where supported by any valid clear and convincing reasons even though other improper reasons may be included. It is unnecessary to remand for resentencing, and the judgment and sentence are therefore affirmed. Accord Albritton v. State, 458 So.2d 320 (Fla. 5th DCA 1984). Compare Young v. State, 455 So.2d 551 (Fla. 1st DCA 1984).

Failure of the trial court to include written reasons in the judgment and sentence is not error where, as here, the reasons for the departure are clearly articulated in the record. Smith v. State, 454 So.2d 90 (Fla. 2d DCA 1984).

AFFIRMED.

HOBSON, A.C.J., and SCHEB, J., concur.


text:
    Donald Patrick EWING, Appellant, v. STATE of Florida, Appellee.
    No. 84-444.
    District Court of Appeal of Florida, Second District.
    Nov. 21, 1984.
    Rehearing Denied Jan. 14, 1985.
    Jack T. Edmund of Edmund, McDaniel & Mars, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Karla J. Staker, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Defendant was convicted and sentenced for trafficking in cocaine and possession of a controlled substance. He raises three grounds on appeal, only one of which merits comment. Defendant argues that the trial court erred in denying his motion to suppress evidence obtained from a search of an automobile. We have previously rejected this argument in Hendrix v. State, 456 So.2d 494 (Fla. 2d DCA 1984), a case involving the same automobile and evidence as in this case. We have examined the other grounds raised by defendant and find them to be without merit.

Accordingly, we affirm defendant’s convictions and sentences.

SCHEB, A.C.J., and OTT and LEHAN, JJ., concur.


author: COWART, Judge.

text:
    O.W., a child, Petitioner, v. James S. BYRD, Circuit Court Judge, Ninth Judicial Circuit, Respondent.
    No. 84-1333.
    District Court of Appeal of Florida, Fifth District.
    Nov. 23, 1984.
    Rehearing Denied Jan. 4, 1985.
    Joseph W. DuRocher, Public Defender, and Roger L. Weeden, Asst. Public Defender, Orlando, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Brian W. Bayly, Asst. Atty. Gen., Daytona Beach, for respondent.
   COWART, Judge.

The petition for prohibition is granted and the trial judge is prohibited from further proceedings on the petition for adjudication of delinquency which is based on the child’s disregard of a court order. “While an adjudication of delinquency is not a permissible sanction under chapter 39 for a dependent child’s disregard of a court order, the trial court still retains its inherent authority to punish for contempt, including, if necessary, placing the child in a secured detention facility for a reasonable period of time.” A.O. v. State, 456 So.2d 1173 (Fla.1984).

PETITION GRANTED.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.


text:
    DADE SAVINGS AND LOAN ASSOCIATION, etc., Appellant, v. Louis O. BRANDY, et al, Appellees.
    No. 84-109.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 1984.
    Rehearing Denied Jan. 4, 1985.

      W. Scott Gabrielson of Rush, Marshall, Bergstrom, Reber & Gabrielson, P.A., Orlando, for appellant.
    Charles L. Early, Jr., of Taylor & Early, P.A., DeLand, for appellees.
   PER CURIAM.

AFFIRMED on the authority of Orange Federal Savings and Loan Association v. Dykes, 433 So.2d 642 (Fla. 5th DCA 1983), rehearing denied, 444 So.2d 1152 (Fla. 5th DCA 1984).

ORFINGER and COWART, JJ., and R.W. POWELL, Associate Judge, concur.


text:
    Sam COLDING, Collier County Property Appraiser; and Guy Carlton, Collier County Tax Collector; and the Department of Revenue, State of Florida, Appellants, v. THE MOORINGS, INCORPORATED, a Florida Corporation Not For Profit, For the Use and Benefit of Itself; and the Collier County Health Facilities Authority, a Body Politic and Corporate of the State of Florida, Appellees.
    No. 84-213.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 1984.
    Rehearings Denied Jan. 10, 1985.
    James H. Siesky, Naples, for appellants Sam Colding and Guy L. Carlton.
    Jim Smith, Atty. Gen., Tallahassee, and Joseph C. Mellichamp, III, Asst. Atty. Gen., and Larry Levy, Gen. Counsel, Tallahassee, for appellant Dept, of Revenue, State of Fla.
    Francis H. Cobb and Raymond T. Elli-gett, Jr., of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for appellees.
   PER CURIAM.

We affirm the trial court’s judgment exempting from ad valorem taxes for the years 1981 and 1982, the properties owned by the Collier County Health Facilities Authority. The trial court’s judgment was based on the provisions of the then existing section 154.233, Florida Statutes (1981).

Section 154.233 was repealed by chapter 83-71, Laws of Florida (1983). In affirming the trial court’s judgment, we did not have before us the question of whether the leasehold interests in the properties were subject to ad valorem taxation.

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


author: ZEHMER, Judge. ERVIN, Chief Judge,

text:
    TALLAHASSEE JUNIOR ACADEMY, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. AY-262.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1984.

      Don D. Dye, Tallahassee, for appellant.
    John D. Maher, for the Unemployment Appeals Com’n, Tallahassee, for appellee.
   ZEHMER, Judge.

We review, pursuant to section 120.68, Florida Statutes (1983), the final order of the Unemployemnt Appeals Commission (Commission) determining that claimant, Sara E. Purvis, is qualified to receive unemployment benefits by reason of the circumstances attending the termination of her employment with appellant, Tallahassee Junior Academy (Employer).

We reverse and remand for a full de novo evidentiary hearing.

Shortly after Purvis filed her claim for unemployment compensation benefits with the Florida Department of Labor and Employment Security (Department), the Department issued a wage transcript and determination finding her eligible for benefits. Purvis’s former employer then filed a letter contradicting the allegations set forth in the claim and contesting any allowable benefits. Purvis responded, denying the contentions of the employer. The Division of Unemployment Compensation (Division) issued a notice of determination granting claimant benefits and indicating that the employer would be charged its pro rata share of such benefits. The employer appealed that decision to an appeals referee, who held a de novo evidentiary hearing. The decision of the appeals referee reversed the Division’s determination and disqualified Purvis’s unemployment benefits. When Purvis received this decision, she employed an attorney and appealed her claim to the Unemployment Appeals Commission.

The Commission determined that the record was partially inaudible due to a defective tape recording of the hearing before the referee and that it needed the inaudible testimony to properly determine whether the evidence supported the referee’s decision. The Commission remanded the matter to the referee for further proceedings necessary to perfect the record.

On remand, the appeals referee conducted a second de novo hearing and, contrary to the original decision, entered a new order ruling that Mrs. Purvis was entitled to unemployment benefits based on the evidence and testimony presented at the second de novo hearing. The Commission reviewed the second decision and issued the order being appealed. The Commission’s second order stated that its prior order merely authorized the referee to “perfect the record” and that the referee exceeded his authority when he conducted a de novo hearing and made a new decision. Accordingly, the Commission quashed the second decision of the referee and reversed the first decision of the referee, finding that the first decision “is not supported by the record currently before the Commission and was likely not supported by the prior record either.” (R. 123.)

Appellant argues, among other things, that the referee’s second de novo hearing was unauthorized and prejudicial and that it was improper for the Commission to use the record from the second hearing as a basis to review the appeals referee’s first decision. Appellant also contends that during the second de novo hearing it was deprived of its right of cross-examination by legal counsel and prohibited from using or introducing into evidence those portions of Purvis’s testimony from the original proceeding which were audible and inconsistent with her testimony at the second hearing. In summary, appellant contends that it has been deprived of the fundamental right of procedural due process and a fair hearing. Appellant also argues that the appeals referee’s first decision was based upon competent, substantial evidence and, therefore, should have been affirmed by the Commission. It asks us to reinstate that original decision.

The scope of appellate court review is defined in section 120.68, Florida Statutes (1983). Subparagraph (8) of that section directs that “the court shall remand the case for further agency action if it finds that either the fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure.” We find from the record before us that faulty recording equipment prevented a complete and audible record of the original evidentiary hearing which supported the first order disqualifying Purvis from receiving benefits. For some reason unknown to us, the partially inaudible record of the first hearing was destroyed before the matter came back to the Commission a second time. The appeals referee, upon remand from the Commission with directions to perfect the original record, exceeded his authority by holding a second de novo hearing and entering a new finding based only upon the evidence adduced at the second hearing. Appellant, unrepresented by counsel, was deprived of the right to present certain evidence to impeach the claimant during that second hearing. The Commission, although properly quashing the referee’s second order, impermissibly reversed the referee’s original finding and entered its own order qualifying Purvis for benefits based solely upon the record taken in the unauthorized second de novo hearing. We can only conclude from these circumstances that no party has received the kind of fair proceeding contemplated by section 443.151 and guaranteed by the Administrative Procedures Act, chapter 120, Florida Statutes. Rather than attempt to undo this procedural quagmire, we believe the simplest and fairest solution is to permit the parties to start over with a full and fair evidentiary hearing.

Accordingly, the order is reversed and the case is remanded with directions to hold a new de novo hearing at which all parties will be afforded an opportunity to present competent and relevant evidence in support of their respective contentions.

REVERSED and REMANDED.

MILLS, J., concurs.

ERVIN, C.J., dissents with written opinion.

ERVIN, Chief Judge,

dissenting.

I respectfully dissent. Although the final order of the Unemployment Appeals Commission contains inconsistent language in stating that the appeals referee exceeded his authority when he conducted a hearing de novo and entered a second decision, therefore requiring that the decision be quashed, the Commission’s order holds that the first decision must nevertheless be reversed on the ground that it was not supported by the record before the Commission and probably was not supported by the record of the prior proceeding either, which inexplicably had been destroyed. The bottom line is, of course, that the referee’s second recommended order was ultimately upheld. In its first order remanding the case for further proceedings, the Commission “found that the tape recording of the testimony presented before the referee is defective. In the absence of the complete record of the proceedings below, we are unable to judge whether the decision of the appeals referee is supported by the evidence in the record and is in accord with the essential requirements of law.” The Commission thereupon directed the referee to conduct “such further proceedings as are necessary to perfect the record.” (e.s.) Given the rather open-ended language contained in the Commission’s first order, the appeals referee obviously, and I think logically, concluded that the Commission provided him the option, among others, to conduct a de novo hearing.

In that the Commission ultimately accepted the recommended conclusion of the appeals referee, despite its otherwise inconsistent statements, I would apply the harmless error rule to the case at bar on the ground that neither the fairness of the proceedings nor the correctness of the action was impaired by material error in procedure or a failure to follow prescribed procedure. Section 120.68(8), Florida Statutes. See also Department of Business Regulation, Division, of Pari-Mutual Wagering, v. Hyman, 417 So.2d 671, 673 (Fla.1982).

The only additional question is whether appellant was prejudiced by the procedure followed by the referee on remand. First, appellant, unrepresented by counsel, made no objection to the referee’s determination to proceed de novo. The only real question of any substance is whether appellant was deprived of its right to a full and fair cross-examination of appellee, due to the referee’s ruling prohibiting the use or introduction into evidence of appellant’s own tape recording of appellee’s testimony from the original proceeding, which purportedly was inconsistent with appellee’s testimony at the second hearing. Counsel for appel-lee objected to the attempted method of impeachment on the ground that he had no record of the prior questions that were asked, and the referee sustained his objection, stating that the tape recording of the prior testimony was partially inaudible. In my judgment, the referee’s ruling, implicitly sustained by the Commission, was a proper exercise of his discretion. Although the Florida Code of Evidence has not been adopted by the Administrative Procedure Act (APA), I cannot believe that the evidence sought to be introduced is the type contemplated by the Act to be admissible.

Section 120.58(l)(a), Florida Statutes, provides, “Irrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of Florida.” (e.s.) The Model Rules of Procedure of the Administration Commission, specifically Florida Administrative Code Rule 28-5.25(6)(c), similarly permit the admission of “[a]ny relevant evidence ... if it is the sort of evidence on which reasonable prudent men are accustomed to rely in the conduct of their affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil action....” In my view the impeachment of a party’s testimony by means of an incomplete tape recording is not that sort of evidence which is commonly relied upon by reasonably prudent persons in the conduct of their affairs; consequently even under the APA’s more relaxed standards regarding the receipt of evidence, a partially inaudible recording would still be considered inadmissible.

The Florida Evidence Code — while not as stated controlling — provides persuasive authority for this conclusion. Section 90.108 requires that “[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement that in fairness ought to be considered contemporaneously.” Additionally, Florida Rules of Civil Procedure 1.330(b) and 1.340(b) provide that when portions of depositions and interrogatories are not altered by a party, an adverse party may require the introduction of any part that in fairness ought to be considered with the part introduced, and any party may introduce any other parts. Accord American Motors Corp. v. Ellis, 403 So.2d 459 (Fla. 5th DCA 1981). Indeed, the general rule is that “[wjhere, for impeachment purposes, a portion of a statement previously made by a witness and apparently inconsistent with his present testimony is introduced, the entire statement is admissible in rebuttal.” 98 C.J.S. Witnesses § 622 (1957). In the instant case, it would have been impossible to introduce appellee’s entire testimony from the earlier hearing for the purpose of rebutting the impeaching effect of any pri- or inconsistency for the simple reason that parts of it were inaudible.

Appellant did not request the opportunity to impeach appellant’s testimony by other means, such as by “[pjroof by other witnesses that material facts are not as testified to by the witness being impeached.” Section 90.608(l)(e). No doubt the major difficulty appellant had in marshalling its defenses at the second hearing was caused by its lack of representation. Yet this was a risk that appellant knowingly assumed. The fact of unrepresentation, under the circumstances, is hardly a ground for yet another hearing.

Because I consider that it would be improper for appellant to be allowed the use of a partial tape recording of appellee’s prior testimony for the purpose of impeachment, I fail to see any requirement for a third evidentiary hearing. I would therefore affirm.

      . § 443.151(2), Fla.Stat. (1983).

      . § 443.151(3), Fla.Stat. (1983).

      . § 443.151(4)(a) and (b), Fla.Stat. (1983).

      . § 443.151(4)(c), Fla.Stat. (1983).

      . § 443.151(4)(a) requires that, "The division shall provide the commission and the Appeals referees with proper facilities and assistance for the execution of their functions.” This statutory directive undoubtedly mandates that the Division provide adequate recording equipment or court reporter services to make the record required by law for Commission and appellate review. Adequate recording equipment includes backup equipment and measures designed to prevent the loss of essential testimony such as occurred in this case. The total cost to the state for the various proceedings held in this case, including the appeal to this court, will undoubtedly exceed the cost of providing backup equipment for several referees. Since imperfectly recorded testimony is not unique in administrative proceedings, we suggest that the Division consider the acquisition of adequate recording equipment or other suitable measures to insure that a proper record is made in the first instance.

      . The appeals referee granted the new de novo hearing because the claimant was then represented by counsel, who, according to the referee, was entitled to cross-examine the witnesses who testified at the first hearing. This is obviously not a legally sufficient reason for granting a new evidentiary hearing under the Commission’s remand order.

      . Clearly the Commission possesses the authority to order a second de novo hearing. The Commission may review the findings and conclusions of the appeals referee either "on the basis of the evidence previously submitted in such case, or upon the basis of such additional evidence as it may direct to be taken_” Section 443.151(4)(c), Fla.Stat. (e.s.).


text:
    CALDWELL-DAVIS CONSTRUCTION CORP., Appellant, v. John W. HOOVER, Jr. and James A. Sawyer, Appellees.
    No. 84-1371.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1984.
    Rehearing Denied Jan. 30, 1985.
    Gilmour, Morgan & Rosenblatt and Robert A. Rosenblatt, Miami, for appellant.
    Herbert A. Warren and Richard A. Warren, Miami, for appellees.
    Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

A corporate independent contractor which prevails in an action to recover bonuses promised for early completion of a construction project is not entitled to attorney’s fees pursuant to section 448.08, Florida Statutes (1983), which authorizes such fees where an “employee” prevails in an action to recover “unpaid wages.” See Fitch v. Pacific Fidelity Life Insurance Company, 54 Cal.App.3d 140, 126 Cal.Rptr. 445 (1975) (wages as used in a statute refers to compensation for labor performed by an employee rather than by an independent contractor).

Affirmed.


text:
    Robert William CONNORS, Appellant, v. Florence Trombacco CONNORS, Appellee.
    No. 84-1204.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1984.
    Rehearing Denied Jan. 14, 1985.
    Charles D. Franken of Law Offices of Gerald Beyer, P.A., Fort Lauderdale, for appellant.
    Richard A. Rosenberg, Davie, for appel-lee.
   PER CURIAM.

AFFIRMED.

DOWNEY, DELL and BARKETT, JJ., concur.

ON MOTIONS FOR REHEARING AND CLARIFICATION

BY ORDER OF THE COURT:

ORDERED that Appellant’s December 20, 1984 Motion for Rehearing is denied.

ORDERED that the December 20, 1984 Motion for Clarification has been reviewed. The order of December 12, 1984 was entered for failure to file Statement of the Evidence of Proceedings, in accordance with Fla.R.App.P. 9.200(b)(3).


text:
    Clifford Lynn SURRATT, Appellant, v. STATE of Florida, Appellee.
    No. 84-383.
    District Court of Appeal of Florida, Fifth District.
    Dec. 13, 1984.
    Rehearing Denied Jan. 11, 1985.
    James C. Weart, P.A., Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Donovan v. State, 417 So.2d 674 (Fla.1982).

COBB, C.J., and ORFINGER and CO-WART, JJ., concur.


text:
    STATE of Florida, Petitioner, v. James BOUGEOUIS, Respondent.
    No. 84-2184.
    District Court of Appeal of Florida, Second District.
    Dec. 14, 1984.
    Rehearing Denied Jan. 14, 1985.
    E.J. Salcines, State Atty., and Ronald C. Glickman, Asst. State Atty., Tampa, for petitioner.
    John E. Lund of Cicero, Lund & Williams, Tampa, for respondent.
   PER CURIAM.

Having found no clear departure from the essential requirements of law which resulted in a miscarriage of justice, see Combs v. State, 436 So.2d 93 (Fla.1983), we deny the petition for writ of certiorari.

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


author: SHIVERS, Judge.

text:
    Dawson Eugene HAVIS, Appellant, v. STATE of Florida, Appellee.
    No. AX-2.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1984.

      Michael E. Allen, Public Defender, Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Gregory G. Cos-tas, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   SHIVERS, Judge.

Appellant was charged with burglary of a dwelling with the intent to commit a battery, attempted sexual battery, and lewd, lascivious, or indecent assault or act upon or in the presence of a child under the age of fourteen. The charge of attempted sexual battery was dropped before trial. After trial by jury, appellant was found guilty of trespass of a structure occupied by a human being, a lesser included offense of burglary of a dwelling with battery, and lewd, lascivious, or indecent assault and cumulatively sentenced to sixteen years imprisonment. The public defender filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We find no reversible error and affirm.

After having reviewed the record, we find only one point that merits discussion. At the hearing on appellant’s motion for new trial, appellant’s counsel pointed out that if appellant had been found guilty as charged, the sentencing guidelines would have prescribed a presumptive sentence equal to one half of that for which appellant was convicted. Appellant’s counsel argued that this anomaly in the sentencing guidelines constituted a mitigating factor warranting the trial court’s departure from the guidelines pursuant to Fla.R.Crim.P. 3.701(d)(ll). The trial court disagreed and imposed the maximum sentences allowed by law on both counts for which appellant was convicted. Fla.R.Crim.P. 3.701(d)(10). We find no error in the trial court’s sentences.

As noted by all parties, the situation presented by the sentencing guidelines in this case is an anomaly. Nonetheless, the trial courts and this court are constrained to follow the presumptive sentence of the sentencing guidelines unless there are clear and convincing reasons warranting departure. We do not find that the- anomaly presented by this case constitutes a clear and convincing reason to warrant mitigating appellant’s sentences. Accordingly, appellant’s judgments of conviction and sentences are AFFIRMED.

MILLS and WENTWORTH, JJ., concur.

      . Appellant’s primary offense as charged was burglary of a dwelling with the intent to commit and the commission of a battery upon another person contrary to section 810.02, Florida Statutes, a first degree felony. Appellant's primary offense as convicted was lewd, lascivious or indecent assault on or in the presence of a child contrary to section 800.04, Florida Statutes, a second degree felony. Defense counsel stated that if appellant had been convicted as charged with burglary of a dwelling with battery as the primary offense, the burglary scoresheet would have been used resulting in a recommended sentence of eight years. However, since appellant was convicted of trespass of a structure occupied by a human being, a first degree misdemeanor, and lewd, lascivious or indecent assault, a second degree felony and therefore the primary offense, the sexual offenses scoresheet was used resulting in a recommended sentence of twenty years. The maximum sentence that could be imposed, however, was fifteen years on the lewd, lascivious or indecent assault conviction and one year on the trespass conviction, as these are statutory máximums. Fla.R.Crim.P. 3.701(d)(10); section 775.082(3)(c), Florida Statutes (1983); section 775.082(4)(a), Florida Statutes (1983).


author: WIGGINTON, Judge.

text:
    John M. WATERS, Appellant, v. Peggy O’Neal WATERS, Appellee.
    No. AY-243.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1984.
    Rehearing Denied Jan. 21, 1985.
    Francis P. Conroy, of Marks, Gray, Con-roy & Gibbs, Jacksonville, for appellant.
    Adam G. Adams, II and William H. Jeter, Jr., of Adams & Adams, Jacksonville, for appellee.
   WIGGINTON, Judge.

In this appeal from a final judgment of dissolution of marriage we find no abuse of the trial court’s discretion in equitably distributing the parties’ marital assets. See Cortina v. Cortina, 461 So.2d 964 (Fla. 3d DCA, 1984). We do hold, however, that the trial court abused its discretion in awarding attorney’s fees to the wife when the record clearly shows that she has at least equal, if not greater, ability to pay those fees and does not require the husband’s assistance to provide herself with competent legal counsel. Cor-tina; Grundman v. Grundman, 448 So.2d 59 (Fla. 5th DCA 1984). As was recognized by the court in McIntyre v. McIntyre, 434 So.2d 61 (Fla. 5th DCA 1983):

After making a truly equitable distribution of marital assets it is inequitable to diminish the assets awarded either party by requiring one party to pay the litigation costs of the other where each party has substantially equal ability to pay their own costs and expenses.

Id., at 62.

The final judgment is reversed as to the award of attorney’s fees, but affirmed in all other respects.

AFFIRMED in part and REVERSED in part.

JOANOS and NIMMONS, JJ., concur.


author: WENTWORTH, Judge.

text:
    PHYSICIANS WEIGHT LOSS CENTERS OF AMERICA, INC., Appellant, v. Nicki G. PAYNE, Appellee.
    No. AZ-467.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1984.
    Mitchell J. Frank, of Rogers, Dowling & Bos, Orlando, for appellant.
    B. Thomas Whitefield, of Ulmer, Murchison, Ashby, Taylor & Corrigan, Jacksonville, for appellee.
   WENTWORTH, Judge.

By this petition for writ of certiorari the defendants below seek review of an order of the trial court which denied their motion to compel arbitration and stay court proceedings. We grant the writ, and remand with instructions to the trial court.

This case arises out of a four count complaint filed by Nicki J. Payne against petitioners. The first count alleged that petitioners fraudulently induced Payne to enter into a franchise agreement by making false representations to her regarding the degree and likelihood of acquiring a profitable business. Count two alleged that the fraudulent acts complained of in count one constituted a violation of § 501.204, Florida Statutes. Count three sought damages pursuant to § 817.416(3), and count four sought rescission of the franchise agreement because of the alleged fraud. Defendants filed a motion to stay the court proceedings and compel arbitration. Payne then filed a response containing seven “Affirmative Defenses,” the seventh of which alleged:

The execution by Nicki Payne of the contract which contains the alleged arbitration clause was procured by the Defendant through the fraudulent representations alleged in the Amended Complaint. The execution of the contract was part of a scheme or plan on the part of PWLC to induce Payne to pay PWLC $48,000 in cash and sign a note for an additional $16,000. The insertion of the alleged mediation and/or arbitration clause into the contract was one of the means used by PWLC to effect its fraudulent scheme and was designed to make it as difficult and inconvenient as possible for Payne to litigate and prove her claim and to recover her damages once the fraud of PWLC was discovered. It further was inserted to deprive Payne of the liberal discovery procedures and the right to subpoena witnesses. It was also inserted to avoid responsibility and liability under the consumer protection laws of the State of Florida.

The trial court construed this seventh defense as alleging that the arbitration clause of the contract was procured by fraud, and denied petitioners’ motion on that ground.

We find that the trial court erred in denying petitioners’ motion to compel arbitration on the basis of an allegation which has not been determined to be true. The trial court did not find that the arbitration clause was in fact procured by fraud, and there is no indication from the documents and argument before this court that any evidence was presented in support or contradiction of the allegation. Whether or not an arbitration clause is itself part of an overall fraudulent scheme or was itself procured by fraud is a preliminary factual issue which must be determined by the trial court. See Mosely v. Electronic & Missile Facilities, Inc., 374 U.S. 167, 83 S.Ct. 1815, 10 L.Ed.2d 818 (1963); Prima Paint Corp. v. Flood & Conklin Manufacturing Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967). Obviously, an allegation in the pleadings does not constitute a determination on the merits. Therefore, the petition for writ of certiorari is granted, the order of the trial court is quashed, and the cause is remanded for a determination on the merits of the plaintiff’s claim that the agreement to arbitrate was itself fraudulently induced.

BOOTH and SHIVERS, JJ., concur.

      . Defendants' (appellants) motion was made "pursuant to Florida Statute § 682.03(1), Florida case law, and applicable federal law." The petition here asserts "Chapter 682 is not applicable because the agreement incorporates Ohio law, but it should have been held enforceable under federal law,” citing Lipton Professional Soccer, Inc. v. Mijatovic, 416 So.2d 1236, 1237 (Fla. 1st DCA 1982).

      . We decline, absent a transcript of the hearing on the motion, to review the apparent conclusion to carry over defenses to the second motion.

      . The order does not hold, in terms, that allegations of fraudulent inducement are not arbitra-ble. We note, in any event, that the parties here assume applicability of federal arbitration law to the agreement, and that "Contracts which contain arbitration clauses and which are subject to the Federal Arbitration Act are severable, and fraud in the inducement of the principal agreement does not taint the arbitration clause, so that a question of fraudulent inducement is arbitrable.” Anno. 11 A.L.R. 4th 774. Cf., § 682.03, Florida Statutes: “If the court shall find that a substantial issue is raised as to the making of the [arbitration] provision, it shall summarily hear and determine the issue and ... grant or deny the application [to compel arbitration].” (emphasis supplied)

      . Respondent concedes that "Where fraud in the inducement of an arbitration provision is alleged, a court ... must decide that question. See, Wick v. Atlantic Marine, Inc., 605 F.2d 166, 168 (5th Cir.1979), Robert Lawrence Company v. Devonshire Fabrics, Inc., 271 F.2d 402, 410-11 (2d Cir.1959) cert. dismissed, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37 (1960). If the Court finds the arbitration clause was fraudulently procured, it cannot compel arbitration.” (e.s.) The order herein setting this case for trial clearly contemplates determination of all issues by the court whether or not it first finds fraud in procurement of the arbitration clause.

      . We are not persuaded by respondent’s several asserted alternate grounds for affirming the trial court’s order, absent any determination by the trial court that the complaint was not based on the franchise agreement, that the arbitration provision was fatally ambiguous, or that it was patently illusory. Cf., R.W. Roberts Construction Co. v. St. Johns River, 423 So.2d 630 (Fla. 5th DCA 1982).


author: BARFIELD, Judge.

text:
    Paula Vann GOINGS, Appellant, v. WEST FLORIDA HOSPITAL, a corporation licensed to do business in the State of Florida, and Pensacola Home and Savings Association, a corporation licensed to do business in the State of Florida, Appellees.
    No. AZ-484.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1984.
    Jan J. Hevier, of Phillips & Hevier, Pensacola, for appellant.
    Barry Silber of Levin, Warfield, Middle-brooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, for appellee West Florida Hosp.
   BARFIELD, Judge.

Paula Vann Goings appeals from a final order dismissing her complaint against West Florida Hospital. Appellant alleges that the trial court erred in granting the Hospital’s motion to dismiss based upon the trial court’s finding that section 832.07, Florida Statutes (1983) grants immunity from civil liability to West Florida Hospital. We agree and reverse.

Paula Vann Goings brought an action against Pensacola Home and Savings Association for wrongful dishonor of a ten dollar check drawn by her payable to West Florida Hospital, and against West Florida Hospital for false arrest and malicious prosecution arising from the dishonor of the check. The Hospital had referred the matter to the state attorney’s office for appropriate action after it had twice deposited the check for collection and the savings association had twice refused payment thereon, returning the check to the Hospital marked “insufficient funds.”

Section 832.07(l)(a), Florida Statutes (1983), provides that the making of a worthless check is prima facie evidence of the intent to defraud or knowledge of insufficient funds to cover the check unless the maker

shall have paid the holder thereof the amount due thereon, together with a service charge not to exceed $10 or 5 percent of the face amount of the check, whichever is greater, within 7 days after receiving written notice that such check, draft, or order has not been paid to the holder thereof.

The statute provides that the form of such notice should include a statement to the effect: “Unless this amount is paid- in full within the time specified above, the holder of such check may turn over the dishonored check and all other available information relating to this incident to the state attorney for criminal prosecution.” (emphasis supplied). Under the statute, any party holding a worthless check and giving notice in a substantially similar form to that provided in the statute “shall be immune from civil liability for the giving of such notice and for proceeding under the forms of such notice.”

The complaint alleges that the Hospital gave notice substantially in conformance with the statute; however, the complaint also alleges that appellant responded to that notice by letter, asserting that the bank had erred in dishonoring her check, tendering a cashier’s check for ten dollars, and requesting waiver of the ten dollar service fee, and .further, that the Hospital had accepted appellant’s cashier’s check.

The trial court dismissed the complaint on the premise that the Hospital, having given the notice contemplated by the statute, was immune from civil liability, relying on Scientific Products v. Garcia, 442 So.2d 1019 (Fla. 3d DCA 1983), pet. for rev. dism., Garcia v. Scientific Products, 447 So.2d 886 (Fla.1984). Scientific Products v. Garcia is not dispositive of this case, however, because that decision does not indicate that any information was withheld from the state attorney as is alleged in the complaint sub judice.

We have found no Florida case that deals with the immunity provision in the face of an allegation of withheld information as alleged in this complaint. Looking to other jurisdictions, we find that Georgia has dealt with a similar situation. The Georgia “bad check” statute, § 26-1704(a), Criminal Code of Georgia, is substantially similar to the Florida statute with regard to the notice and immunity provisions. This statute was interpreted by the Georgia Court of Appeals in Stallings v. Coleman, 165 Ga. App. 667, 302 S.E.2d 412 (Ga.Ct.App.1983). Stallings brought ah action against a merchant to recover for malicious prosecution and false imprisonment as a result of bad check charges; the trial court granted a motion for summary judgment in favor of the merchant. In an affidavit in opposition to the motion for summary judgment, Stall-ings averred that, upon receipt of notice from his bank, he contacted the merchant’s agent and informed her that the check received by the merchant was one of several which had been stolen from Stallings. Nonetheless, a warrant for his arrest issued after he did not respond to the statutory notice. In reversing the summary judgment, the court observed:

In order for the immunity provided in subsection (C) to attach, it must appear that the notice was sent and that the holder of the check proceeded “under the forms of such notice.” It is clear from the record that appellee did send the correct notice. However, it does not appear that appellee then proceeded under the form of the notice ... There is no showing in the record that appellee informed the authorities of the information given to his agent by appellant. Therefore, it cannot be said that appellee has borne his burden as movant to demonstrate his entitlement to the immunity granted in § 26-1704: appellee did not show that he gave all available information to the police.

302 S.E.2d at 413.

We are persuaded that the holding in Stallings v. Coleman, is correct and should apply to the allegations of the complaint in this case. Since appellant did not pay the service fee provided in the statute, the Hospital was entitled to refer the matter to the state attorney for prosecution. However, in order to be entitled to the immunity granted by the statute, the Hospital must have proceeded under the form of the notice, by turning over all other available information relating to the incident to the state attorney.

REVERSED.

SMITH and ZEHMER, JJ., concur.


author: SMITH, Judge.

text:
    Carl Lee CRABTREE and Carpet Transport, Inc., Appellants, v. The HERTZ CORPORATION, Faye H. Johnson and Roy Johnson, Appellees.
    Nos. AZ-491, AZ-485.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1984.
    Rehearing Denied Jan. 11, 1985.
    Ernest W. Welch of Welch & Munroe, Tallahassee, for appellants.
    Eugene L. Ciotoli and Charles A. Stampe-los of McFarlain, Bobo, Sternstein, Wiley & Cassedy, Tallahassee, for appellees.
   SMITH, Judge.

Appellants appeal orders of the trial court prorating the payment of a settlement negotiated between appellants and appellee Hertz Corporation, and the John-sons. The total settlement was $150,000, of which the trial court ordered appellants to pay $125,000 and Hertz to pay $25,000. Appellants contend Hertz should have been required to pay $100,000, based on liability insurance coverage provisions contained in a truck rental agreement entered into between Hertz and appellant Carpet Transport, Inc. We agree and therefore reverse.

This case arose out of an accident involving motor vehicles driven by appellee Faye H. Johnson and appellant Crabtree. At the time of the accident, Crabtree was driving a tractor-trailer truck unit which was owned partly by Hertz (the tractor) and partly by appellee Carpet Transport, Inc. (the trailer). The tractor was being rented from Hertz by Carpet Transport, based on a form truck rental agreement written by Hertz and signed by Hertz and Carpet Transport. The Johnsons subsequently filed their complaint for damages against Hertz, Crabtree, and Carpet Transport. Hertz filed a cross-claim against appellants seeking indemnification and/or contribution in the event liability to the Johnsons was found. Prior to trial, the trial judge granted the Johnsons’ motion for partial summary judgment against all three defendants on the issue of liability. Thereafter, the parties agreed on a settlement of $150,000 in the main suit, leaving Hertz’s cross-claim the only issue remaining for litigation. The trial judge resolved this issue by requiring the appellants Carpet Transport and Crabtree to share liability with Hertz for payment of the settlement on a proportionate basis, as follows: Based on the “policy limit” of $100,000 found in Hertz’s truck rental agreement with Carpet Transport and the policy limit of $500,000 found in Carpet Transport’s insurance policy covering the accident, the trial court ruled that Hertz was one/sixth liable and Carpet Transport and Crabtree were five/sixths liable for the settlement; that is, $25,000 and $125,000, respectively.

The sole issue in this case is whether the court correctly apportioned liability for payment of the agreed upon settlement with the Johnsons. The parties to this appeal agree that in order to apportion the damages it is necessary to consider the liability insurance coverage provided by Hertz (as self-insurer) to Carpet Transport and Crabtree under the truck rental agreement, and the insurance provided to Carpet Transport and Crabtree under their policy issued by National Union Fire Insurance Company. Of particular importance are the “primary” and “excess” coverage provisions of the rental agreement and the policy. Under the Hertz truck rental agreement, Hertz, as lessor, agreed to provide liability coverage for Carpet Transport, as well as any driver it authorized, against liability arising out of use of the rental tractor. The liability limits found in the agreement included $100,000 per person where a Hertz tractor was involved. The agreement further stated:

Lessor warrants that, to the extent permitted by law, the coverage of the rented truck or tractor is primary as respects any other insurance available to customer or any other authorized operator ... Customer shall indemnify and hold harmless lessor ... from and against all loss, liability, and expense in excess of the limits of liability provided for in this paragraph .... (emphasis supplied)

The agreement also required Carpet Transport to warrant that any trailer or other equipment it utilized in conjunction with the Hertz rental tractor would be maintained in good operating condition and in compliance with all applicable local safety laws and regulations. This particular provision required Carpet Transport to indemnify Hertz for any loss resulting from Carpet Transport’s failure to comply with its terms.

Carpet Transport and Crabtree, on the other hand, were covered by an insurance policy issued by National Fire Insurance Company. The policy’s limit was $500,000. This policy provided coverage for Carpet Transport and any other authorized operator of a “covered auto.” The term “auto” was defined by the policy as “a land motor vehicle, trailer, or semi-trailer designed for travel on public roads.” This policy contained an “other insurance” provision which stated, in pertinent part:

1. This policy’s liability coverage is primary for any covered auto while hired or borrowed by you and used exclusively in your business and pursuant to operating rights granted to you by a public authority. This policy’s liability coverage is [sic] excess over any other collectible insurance for any covered auto while hired or borrowed from you by another trucker. However, while a covered auto which is a trailer is connected to a power unit, this policy’s liability coverage:
(a) Is on the same basis, primary or excess, as for the power unit which is a covered auto....
* * * ⅝ * sfe
4. When two or more policies cover on the same basis, either excess or primary, we will pay only our share. Our share is the proportion that the limit of our policy bears to the total of the limits of all the policies covering on the same basis, (emphasis in original)

The trial court based its orders prorating liability for the settlement on Hartford Accident & Indemnity Co., Inc. v. Liberty Mutual Insurance Co., Inc., 277 So.2d 775 (Fla.1973). The similarity between the facts and issues in this case, and those in Hartford, is striking. However, as will be discussed, we find one fundamental and controlling distinction.

In Hartford, a tractor owned by Ryder Truck Rental, Inc., and insured by Liberty Mutual Insurance Company was leased to Elberta Crate Company. The tractor was used.to pull a trailer owned by Elberta and insured by Hartford. Subsequently, an accident occurred while the tractor-trailer was being driven by an authorized employee of Elberta. The issue in Hartford, as here, was the proration of liability between insurance carriers. Since both of the insurance policies involved in Hartford provided coverage for use of a tractor or trailer, while at the same time making the insurance provided “excess” over any other valid insurance on the covered vehicles, the Florida Supreme Court was presented with the question of which, if either, of the insurance carriers involved was entitled to be considered an “excess” insurer, with no liability until the limits of the other insurance company’s policy was reached.

From the foregoing, the similarities between Hartford and this case are apparent. The crucial distinction is that here, the truck rental agreement did not have an “excess” insurance clause. On the contrary, it specifically stated that it was to be considered the primary source of coverage over the Hertz tractor without regard to “any other insurance available to [Carpet Transport, Inc.] or [Crabtree].” Moreover, it required its customers to hold harmless and indemnify Hertz against any loss in excess of the agreement’s coverage limits — here, $100,000. Hence, we are not faced with the same impasse created by mirror image “primary” and “excess” insurance provisions as confronted the court in Hartford. Rather, we interpret the previously-noted provisions of the Hertz truck rental agreement as manifesting a clear and unambiguous intent on Hertz’s part to contractually provide Carpet Transport and Crabtree with primary insurance coverage of $100,000. Cf. Hertz Corp. v. Pugh, 354 So.2d 966, 969 (Fla. 1st DCA 1978) (clear and unambiguous provisions in insurance contract should be given their natural meaning). Moreover, once the requirements of Florida’s financial responsibility law regarding liability insurance coverage were met, Sections 324.021(7) and 627.736, Florida Statutes (1983), Hertz and Carpet Transport were free to contract between themselves as to any additional responsibility. Insurance Company of North America v. Avis Rent-A-Car, 348 So.2d 1149 (Fla.1977); Reliance Insurance Co. v. Maryland Casualty Co., 453 So.2d 854, 856 (Fla. 4th DCA 1984); Sentry Indemnity Co. v. Hartford Accident & Insurance Co., 425 So.2d 652, 654 (Fla. 5th DCA 1983); Patton v. Lindo’s Rent-A-Car, Inc., 415 So.2d 43, 45 (Fla. 2d DCA 1982). The rule we adopt in this case is that, absent a Hartford -type impasse, insuring agreements made by an owner-lessor and self-insurer such as Hertz with respect to its primary liability, vis-a-vis other insurance available to the lessee, will be enforced in accordance with the intention of the parties as clearly expressed in the contract between lessor and lessee. Hertz Corp. v. Pugh, supra.

Accordingly, the orders appealed from are REVERSED, and this case is remanded to the trial court for entry of a final order requiring Hertz to pay $100,000 of the settlement and Carpet Transport, Inc. and Crabtree, through their insurer, to pay $50,000.

REVERSED and REMANDED with directions.

ZEHMER and BARFIELD, JJ., concur.

      . This ruling has not been appealed by any of the party-defendants below, and therefore is not before us for decision.

      . The rental agreement provides in relevant part:
      5. LIABILITY COVERAGE
      Lessor provides liability coverage for customer [Carpet Transport, Inc.] and any authorized operator [Crabtree] and no others, ... against liability arising from the use of a vehicle, with limits as follows: ...; IF A TRACTOR, $100,000 each person ... IF A TRAILER, NO COVERAGE.

      . Although in the instant case Hertz is a self-insurer, for purposes of proration of the damages the insuring agreements contained in the truck rental agreement will be considered as placing Hertz in the same position as would be a separate insurance company issuing a policy containing the same insuring provisions.


text:
    Earl Kym DARBY, Appellant, v. STATE of Florida, Appellee.
    No. BA-175.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1984.
    Earl Kym Darby, pro se.
    No appearance for appellee.
   SHIVERS, Judge.

Appellant appeals the trial court’s denial of his RCrP 3.850 motion for post-conviction relief. In his motion, appellant alleged eight grounds in support of relief. Seven of these grounds could have been, should have been, or were raised and decided on appellant’s direct appeal. As a result, these grounds were not properly raised by appellant’s RCrP 3.850 motion. See generally Palmes v. State, 425 So.2d 4, 6 (Fla.1983).

As to the appellant’s remaining allegation that the foreman of the jury improperly influenced the other jurors, this is a matter that “inheres in the verdict” and, therefore, is not subject to attack. See State v. Blasi, 411 So.2d 1320, 1321-22 (Fla. 2d DCA 1981).

Accordingly, the order on appeal is AFFIRMED.

MILLS and WENTWORTH, JJ„ concur.