author: HARRIS, Judge.

text:
    Robert L. WILLIAMS v. STATE.
    2 Div. 380.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied May 8, 1984.
    Certiorari Denied June 22, 1984 Alabama Supreme Court 83-922.

      William T. Faile, Selma, for appellant.
    Charles A. Graddick, Atty. Gen. and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

Robert L. Williams was convicted of selling marijuana, fined $1,500, and sentenced to fifteen years' imprisonment in the penitentiary.

The sufficiency of the state’s evidence is not challenged on this appeal.

The appellant contends, initially, that the trial court erred in denying his motion to quash the venire on the ground that the venire was selected from a jury pool which did not comply with Alabama standards for a “fair cross section of the population.” See Ala.Code § 12-16-55 (1975). It is undisputed that in Dallas County, pursuant to a federal court order, the jury box is routinely filled with names of qualified persons randomly selected from a master list comprised of names from only the list of registered voters and the list of ad valorem taxpayers (property owners). The appellant argues on appeal that this procedure systematically excludes a substantial segment of the population of Dallas County, “non-registered voters,” and, thereby, fails to satisfy the requirements of Alabama law, §§ 12-16-55 to -57, Code of Alabama 1975. Appellant’s argument on appeal implies, as he argued at trial, that, in effect, the Dallas County procedure for “filling the jury box” also excludes a disproportionate number of black citizens, who comprise a high percentage of that group of persons who are neither registered voters nor property owners.

The appellant relies on State ex rel. Gregg v. Maples, 286 Ala. 274, 239 So.2d 198 (1970), wherein the court held that a jury selection procedure which utilized the county voter registration list as the sole and exclusive source of qualified jurors was a “fraud in law,” under the circumstances, because it did not substantially comply with the existing jury selection statutes, statutes which required, on the master jury list, the name of every qualified person in the county. Appellant’s reliance on Maples, however, is misplaced because the statutes applicable in Maples have been repealed and replaced by §§ 12-16-55 to -57.

The Dallas County procedure, utilizing both the voter registration list and the ad valorem taxpayer list does not violate current Alabama law. See, Wesley v. State, 424 So.2d 648 (Ala.Cr.App.1982); see also, Lopez v. State, 415 So.2d 1204 (Ala. Cr.App.1982). Both Wesley and Lopez dealt with the validity of jury selection procedures under the current statutes. In Lopez the court upheld a procedure in Eto-wah County which utilized the driver’s license list as its sole source of qualified jurors for the master jury list. In Wesley the court, likewise, upheld a Tuscaloosa County procedure which utilized only the voter registration list. In distinguishing Maples, the Wesley court held that, although such a procedure violated the former statutes which required the jury commission to place on the jury roll the name of every qualified, and non-exempt, person, the use of a voter registration list did not “constitute a prima facie violation” of the new statutes which focus on the § 12-16-55 policy “that all persons selected for jury service be selected at random from a fair cross section of the population of the area served by the court.” (Emphasis added.)

As in Wesley and Lopez, the Dallas County procedure utilizes sources, “registered voters” and “persons listing property for ad valorem taxation,” which are expressly recommended in § 12-16-57 as sources for names of persons to be included on the master jury list to foster the “fair cross section” policy of § 12-16-55. Furthermore, the exclusion of that group of persons who are neither “registered voters” nor “persons listing property for ad valorem taxation” does not violate the policy of § 12-16-56, which proscribes the exclusion of a person “on account of race, color, religion, sex, national origin or economic status.”

The Dallas County procedure, therefore, substantially complies with current Alabama law, even though it does not attempt to locate, for jury duty, every qualified person. As the court in Lopez v. State, supra, stated:

“The law in Alabama does not require, literally, that every qualified person’s name be placed on the rolls or in the box. Mitchell v. Johnson, 250 F.Supp. 117 (M.D.Ala.1966). Failure to include the name of every qualified person on the jury roll is not a ground to quash an indictment or venire, absent fraud or purposeful discrimination. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).”

Although the appellant does not expressly raise any constitutional issues, we note that the current statutory “fair cross section” requirement is analogous to the constitutional requirement. It is well settled that fraud or purposeful discrimination that results in the systematic exclusion, from jury service, of distinctive groups in a community might constitute a violation of a defendant’s Sixth Amendment right to a trial by a jury composed of a fair cross section of the community. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979); Wesley v. State, supra. It is the defendant’s burden to demonstrate this constitutional violation by showing: “(1) that the group alleged to be excluded is a ‘distinctive group’ in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to the jury selection process.” Duren v. Missouri, supra.

Appellant’s proof tended to show that most “non-registered voters” were not “property owners” and that, consequently, the Dallas County procedure systematically excluded “non-registered voters.” This evidence did not demonstrate a violation of the “fair cross section” requirement because “non-registered voters” do not constitute a “distinctive group” in the community. Wesley v. State, supra. The first prong of the Duren test was, therefore, not satisfied. And, of course, those “non-registered voters” who are on the ad valo-rem taxpayer list are included on the master jury list.

Although the appellant offered some evidence that a disproportionate number of black citizens are neither “registered voters” nor “property owners,” he presented no evidence of fraud or purposeful discrimination against black citizens and no evidence of either underrepresentation of blacks on Dallas County venires (or the particular venire from which his jury was drawn) or systematic exclusion of blacks due to the Dallas County procedure.

For the foregoing reasons the trial court did not err in denying appellant’s motion to quash the venire.

In oral argument before this court, the appellant conceded that he never filed a written motion to quash the venire. The state points out that, because of this failure to file a written motion, we are not required to review this issue. Williamson v. State, 52 Ala.App. 617, 296 So.2d 241 (1974); Chambliss v. State, 373 So.2d 1185 (Ala.Cr.App.), cert. denied, 373 So.2d 1211 (Ala.1979). Nevertheless, we did so because, despite any procedural defects with respect to appellant’s motion, the trial court heard the motion and the testimony in support thereof, and expressly overruled it. The legality of the Dallas County procedure for “filling the jury box” was, therefore, adequately brought to the attention of the trial court, and, under these circumstances, sufficiently preserved for our review.

The appellant also moved to quash the venire because, at some point during its organization, but before any particular case was called for trial, a prospective jur- or, after learning that he would be serving for a “criminal” docket, commented, “let’s hang 'em up high.” The trial court conducted a hearing on this motion and concluded that the comment was made in a joking manner and that it was not prejudicial to the appellant. We agree. The comment should not have been made, but it was said in jest and was not made in reference to the appellant. Neither the prospective juror who made the comment nor the only prospective juror who remembered hearing the comment served on appellant’s jury. For these reasons the trial court’s refusal to quash the venire on this ground was not reversible error.

Tyrone Anderson, an undercover agent with the Drug Division Unit of the Alabama Department of Public Safety, described the incident that led to appellant’s arrest and identified the appellant, at trial, as the person who sold him some marijuana. On cross-examination the appellant attempted to discredit Anderson’s testimony, implying, among other things, misidentifi-cation of the appellant. Anderson was subsequently recalled by the state, at which time he testified without objection that before he purchased the marijuana from the appellant, he had had a conversation with William Duke, a narcotics officer with the Dallas County Sheriff’s Department, at which time Duke had given him a photograph of the appellant to help him, Anderson, identify the appellant during the undercover operation. Anderson then produced the photograph that Duke had shown him. The photograph was admitted into evidence over appellant’s objection but only after the lower portion had been removed, leaving only the frontal and profile views of the appellant’s face with a height chart in the background. Appellant’s request for a voir dire examination of Anderson before the photograph was admitted was denied.

On appeal, the appellant claims that the photograph was a “mug shot” and was, therefore, inadmissible because it evidenced a prior offense committed by, or a prior arrest of, the appellant. At trial he objected “on the ground that the District Attorney is trying to boost the testimony of his own witness.” Because the specific ground raised at trial waived all other grounds, the issue raised on appeal was not properly preserved for our review. Howell v. State, 369 So.2d 297 (Ala.Cr.App.1978), cert. denied, 369 So.2d 303 (Ala.1979); Dorsey v. State, 406 So.2d 457 (Ala.Cr.App.1981).

We do note, however, that before the photograph was presented, Anderson had testified, without objection, that he had obtained the photograph from a “narcotics” officer with the sheriff’s department. Consequently, the photograph itself, in its “doctored” state, arguably, did not contribute any prejudicial implications that were not already inferred by Anderson’s unchallenged testimony. See, Williamson v. State, 384 So.2d 1224, 1229 (Ala.Cr.App. 1980). Such cumulative evidence would not constitute reversible error in this instance. A.R.A.P. 45; see, Hayes v. State, 395 So.2d 127, 147 (Ala.Cr.App.1980), cert. denied, 395 So.2d 150 (Ala.1981). Of course, the use at trial of true “mug shots” with police identification labels should be, generally, avoided because of the inherent prejudicial nature of such photographs. Gross v. State, 395 So.2d 485 (Ala.Cr.App.1981), and cases cited therein; see, Williamson v. State, supra (thorough analysis for determining when the admission of “mug shots” constitutes reversible error).

The trial court’s denial of appellant’s motion for a voir dire examination of Anderson before the photograph was admitted, likewise, did not constitute reversible error under these circumstances. Anderson had already identified the photograph as the one Duke had given him and had stated that it was in substantially the same condition, in its “undoctored” state, as it was when Duke gave it to him. There had been no contention that the photograph had been, in any way, “tampered with” or altered between the time Anderson received it and trial, or that it was prejudicial “on its face.” Officer Duke subsequently identified the same photograph as the one that he had given Anderson. Any defects in the predicate for the admissibility of the photograph were cured by Duke’s testimony.

The granting of a request by one party to conduct a voir dire examination of a witness during the direct examination of that witness by the other party is a matter properly left to the discretion of the trial court, unless there has been a clear abuse of that discretion. Chambers v. State, 352 So.2d 21 (Ala.Cr.App.), cert. denied, 352 So.2d 25 (Ala.1977); Shelton v. State, 384 So.2d 869 (Ala.Cr.App.), cert. denied, 384 So.2d 871 (Ala.1980); Matthews v. State, 401 So.2d 241 (Ala.Cr.App.), cert. denied, 401 So.2d 248 (Ala.1981); Sanders v. State, 426 So.2d 497 (Ala.Cr.App.1982). In light of the predicate that had been established and the only grounds of objection that had been raised by the appellant, the trial court’s refusal to allow the requested voir dire examination was not an abuse of discretion, and it was not reversible error.

The appellant further complains that certain questions and answers during the prosecutor’s cross-examination of Armi-teene Williams, appellant’s grandmother, impermissibly referenced a prior offense and, therefore, constituted reversible error. We have reviewed appellant’s arguments in light of the record and have concluded that no reference to a prior offense was made. The witness was asked if Officer Duke had been to her home on an occasion prior to the instant offense to see the appellant, and she answered over appellant’s objection, “No, not as I knowed [sic].” The trial court’s rulings concerning this cross-examination of appellant’s grandmother, therefore, did not constitute reversible error.

Having found no errors warranting a reversal of this cause, we hereby affirm appellant’s conviction and sentence below.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: SAM TAYLOR, Judge.

license: Public Domain

text:
    Terry BURNETT v. STATE.
    4 Div. 57.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.
    Certiorari Denied June 22, 1984 Alabama Supreme Court 83-840.

      Larry R. Grissett of Prestwood, Prest-wood & Grissett, Andalusia, for appellant.
    Charles A. Graddick, Atty. Gen. and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   SAM TAYLOR, Judge.

Appellant Terry Burnett was convicted of possession of marijuana and, with one prior felony conviction, sentenced to six years’ imprisonment in the penitentiary.

I

On this appeal, he first contends that the court erred in denying a motion for mistrial on the basis of the following:

“Tell us, if you would, what you observed prior to obtaining that search warrant on the night of September the twenty-fourth.
“MR. PRESTWOOD: Now, we object if the Court please, unless the question is directed towards one or the other of the two places allegedly to be searched?
“Q Okay, his residence is on Cadiz Street?
“A At nine P.M. on the twenty-fourth of September, I had a confidential informant—
“MR. PRESTWOOD: Wait just a minute, we object to this if the Court please.
“THE COURT: His question was, what did you observe?
“A I observed my confidential informant go to Mr. Burnette’s residence and make a purchase.
“MR. PRESTWOOD: We object unless he is going to identify this person.
“THE COURT: Overruled.
“Q Go ahead.
“MR. PRESTWOOD: Wait just a minute, and we further object at this time and move for a mistrial. This witness is the main witness for the State, has come in here and said that he observed this confidential informant make a purchase, and that is absolutely inadmissible, it’s a conclusion and it’s an invasion of the province of the jury.
“THE COURT: Ladies and gentlemen of the jury, this last statement about observing a confidential informant making a purchase would be excluded from your consideration. At this time, I would like to start back on the back row back there and ask if there is any juror that could not exclude that from their mind and make a fair and impartial verdict based on the other evidence to be submitted ... you feel that you could exclude that from your minds.... (At which time the court polled the jury and each individual juror answered in the affirmative.)
“THE COURT: Anybody feel they could not, please hold up your hand.... I will overrule it and overrule the motion for a mistrial.”

Counsel for the appellant contends that the court allowed such testimony after “overruling a timely objection by defense counsel_” It is apparent from the transcript that the answer regarding the confidential informant’s making a purchase could not have been anticipated by the court. The first objection came to the answer and even then the objection was conditioned on whether the witness identified the confidential informant. The counsel for appellant then registered a general objection and made his motion for a mistrial. The court moved swiftly to instruct the jury to disregard the extraneous matter and to poll the jury on the question of whether or not they felt they could disregard such matter.

Prompt action of this nature by the court to prevent a possible mistrial is to be commended. Hoyett v. State, 441 So.2d 1063 (Ala.Cr.App.1983). Granting a mistrial is an extreme measure. The court’s determination that its actions have provided the antidote to the testimony must be given great weight. The court did not abuse its discretion. See Perry v. State, 371 So.2d 969 (Ala.Cr.App.), cert. denied, 371 So.2d 971 (Ala.1979).

II

Appellant next contends that there was a failure by the state to demonstrate a complete chain of custody as to three exhibits. The state’s evidence tended to show that the Alabama Bureau of Investigation secured a search warrant to search both the business and the residence of the appellant. Investigators first went to Right-On Fashions, appellant’s place of business. There they found one plastic bag of plant material believed to be marijuana. They then arrested the appellant and advised him of his Miranda rights. A search of the appellant’s vehicle outside his business turned up a “roach clip”. On the way to appellant’s residence, appellant offered to give the officers all the marijuana he had if they would not search his house. This offer was refused and the search proceeded. A shoe box containing residue was found in a bedroom; an envelope in a back room chest of drawers was found to contain what appeared to be marijuana; an envelope under a pile of clothing, in a bedroom, was found to contain what appeared to be marijuana; a match box was found which contained what appeared to be marijuana seeds; a plastic bag containing green leafy material appearing to be marijuana was found in the base of a lamp. The plastic bag found at the Right-On Fashions and the bag of material found in the base of the lamp were not offered at trial because they disappeared from the evidence box in the course of the search of appellant’s residence.

Appellant attacks the introduction of the other three quantities of the marijuana found on the basis of “chain of custody.” Investigator Mobley testified to the discovery of the marijuana. Sergeant Williamson also testified to the discovery of the marijuana labeled as state’s exhibit 2 and state’s exhibit 5. Deputy Sheriff White testified as to finding state’s exhibit 3. Sergeant Williamson, the evidence technician, was present when each item was found and he marked each such item. The items were then placed in the shoe box, everything was then turned over to Officer Mobley. Officer Mobley transported the seized items to the Alabama Department of Forensic Sciences, where he turned them over to Mr. Charlie Brooks. Mr. Brooks gave the seized evidence to Mr. Joe Saloom, a drug analyist with the department. Sa-loom testified to receiving and analyzing the material in each-of the envelopes and making a positive determination that it was marijuana. He also testified that the exhibits were in substantially the same condition as they were when delivered to him by Mr. Brooks. Exhibits 2 through 5 were offered into evidence by the state.

Appellant contends that there was a fatal break in the chain of custody because of the disappearance of the other two plastic bags. The disappearance of these two items of evidence were attributed by the investigators to distractions generated by the appellant and the other occupants of his house. Our court has held heretofore that the fact that one piece of evidence is missing does not prove a break in the chain of custody as to some other piece of evidence. In Murrell v. State, 377 So.2d 1102 (Ala.Cr.App.), cert. denied, 377 So.2d 1108 (Ala.1979), an envelope containing evidence labeled “one lead bullet and one small part of a gun” was produced. The lead bullet was missing from the envelope. The court stated, however, that in regard to admissibility of the piece of the gun, “There is no indication that the cylinder switch or other state’s evidence contained in the sealed package had been tampered with in any way other than the fact that an item of evidence listed as being contained in the envelope was not present.” We find there was more than a reasonable probability that numbered state’s exhibits referred to above were the same things and in substantially the same condition as they were at the commencement of the chain of custody. This is all that is required of the offering party in this regard. In light of our finding on this issue, appellant’s contention regarding failure to make out a prima facie case must also be rejected.

This case is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: OVERTON, Justice.

text:
    George F. DeCLAIRE, Petitioner, v. Donna DeClaire YOHANAN, Respondent.
    No. 63012.
    Supreme Court of Florida.
    June 7, 1984.

      Montgomery, Lytal, Reiter, Denney & Searcy, and Edna L. Caruso, West Palm Beach, for petitioner.
    James M. Tuthill of Christiansen, Jacknin & Tuthill, West Palm Beach, for respondent.
   OVERTON, Justice.

This is a petition to review a decision of the Fourth District Court of Appeal reported as Yohanan v. DeClaire, 421 So.2d 551 (Fla. 4th DCA 1982). The district court held that the petitioner-husband’s filing of a false financial affidavit in the parties’ dissolution action constituted “fraud on the court” and was grounds for setting aside a property settlement agreement approved in the final judgment of dissolution entered three years prior to the commencement of this action. We find direct conflict with Truitt v. Truitt, 383 So.2d 276 (Fla. 5th DCA 1980); Erhardt v. Erhardt, 362 So.2d 70 (Fla. 2d DCA 1978), review denied, 368 So.2d 1366 (Fla.1979); August v. August, 350 So.2d 794 (Fla. 3d DCA 1977); and Kimbrough v. McCranie, 325 So.2d 70 (Fla. 1st DCA 1976). We have jurisdiction, article V, section 3(b)(3), Florida Constitution. We find that the conduct in this case did not constitute fraud on the court, as such fraud has been defined and applied, and we quash the decision of the district court.

In the instant case, the petitioner-husband and the respondent-wife dissolved their marriage on October 27, 1977. The final judgment of dissolution incorporated a property settlement agreement entered into between the parties. The record reflects that this was a contested dissolution with substantial discovery and multiple proceedings before and after the entry of final judgment. Three years after the entry of the final judgment, the respondent-wife petitioned for an increase in child support. She later amended her petition, seeking to have the final judgment of dissolution set aside and to have the property settlement agreement declared void on the ground that the petitioner had fraudulently misrepresented his net worth in a financial affidavit on which the respondent allegedly relied in entering into the property settlement agreement.

Following an evidentiary hearing, the trial court (1) granted an increase in child support; (2) found that the financial affidavit executed by the petitioner was false in that it did not accurately reflect the petitioner’s assets and liabilities or petitioner’s net worth at the time of the dissolution; and (3) denied respondent’s request that the property settlement agreement be declared void because the respondent knew or should have known of her former husband’s true net worth as she had previously co-signed financial statements presented to a bank for the purpose of obtaining a loan and because information concerning the petitioner’s true net worth could have been and should have been brought to the trial court’s attention.

The district court reversed the trial court’s refusal to set aside the property settlement agreement, finding that petitioner’s conduct was fraud on the court. The district court recognized that the application of the concept of fraud on the court is restricted because public policy favors the termination of litigation, but held that “the public policy favoring the termination of litigation must yield in the present case to the public policy favoring the filing of accurate financial affidavits in dissolution actions.” 421 So.2d at 553. According to the district court, the petitioner’s “fraudulent affidavit constituted fraud upon the court because a trial court cannot properly determine what to award the parties or whether to approve a property settlement agreement without a true understanding of the parties’ financial condition.” Id. We disagree.

At the outset we must distinguish between extrinsic fraud and intrinsic fraud because only extrinsic fraud may constitute fraud on the court. Extrinsic fraud involves conduct which is collateral to the issues tried in a case. The definition of extrinsic fraud was specifically articulated in United States v. Throckmorton, 98 U.S. 61, 65-66, 25 L.Ed. 93 (1878), in which the United States Supreme Court said:

Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client’s interest to the other side — these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing. (Citations omitted.)

Consistent with the general rule, this Court has defined extrinsic fraud as the

prevention of an unsuccessful party [from] presenting his case, by fraud or deception practiced by his adversary; keeping the opponent away from court; falsely promising a compromise; ignorance of the adversary about the existence of the suit or the acts of the plaintiff; fraudulent representation of a party without his consent and connivance in his defeat; and so on.

Fair v. Tampa Electric Co., 158 Fla. 15, 18, 27 So.2d 514, 515 (1946). See Black’s Law Dictionary 595 (rev. 5th ed. 1979). In other words, extrinsic fraud occurs where a defendant has somehow been prevented from participating in a cause.

Intrinsic fraud, on the other hand, applies to fraudulent conduct that arises within a proceeding and pertains to the issues in the case that have been tried or could have been tried. This Court, consistent with the general rule, has expressly held that false testimony given in a proceeding is intrinsic fraud. We have stated that

[i]f a judgment was obtained upon false testimony or a fraudulent instrument and the parties were heard, the evidence submitted to and received consideration by the court, then it may be said that the matter has been actually tried, or was so in issue that it might have been tried and the parties are estopped to set up an intrinsic or direct fraud to vitiate the judgment, because the judgment is the highest evidence and cannot be contradicted by the parties to it.

Johnson v. Wells, 72 Fla. 290, 299, 73 So. 188, 191 (1916) (citation omitted).

The concept of fraud on the court has historically been limited in its application to ensure the finality of judgments and to avoid frequent attacks against final judgments. Prior, to the adoption of Florida Rule of Civil Procedure 1.540(b), only what was defined as “extrinsic fraud” could, in reality, form the basis for relief from a judgment. Johnson v. Wells; Fair v. Tampa Electric Co. Further, such relief could be obtained only by an independent action in equity. There was no practical basis for relief from a judgment obtained by intrinsic fraud. Rule 1.540(b) was adopted in 1962 as Florida Rule of Civil Procedure 1.38(b) and was modeled on Federal Rule of Civil Procedure 60. The Committee Note to rule 1.540 indicates that the rule is “[sjubstantially the same as Federal Rule 60.” In re Florida Rules of Civil Procedure 1967 Revision, 187 So.2d 598, 631 (Fla.1966). See 7 J. Moore & J. Lucas, Moore’s Federal Practice 1160.31-33 (2d ed. 1983). The Florida rule was not intended to restrict the existing remedies. Like the federal rule, it was intended to provide a modern, simplified procedure for seeking relief from judgments. Further, the rule expanded, to a limited extent, the grounds for setting aside a judgment. Immediately following its adoption, it was explained that the rule

abolished the use of the ancillary writs of coram nobis and audita querela as legal remedies and bills of review and bills in the nature of bills of review in equity. ... The rule was not intended to diminish the substantive remedial law but only to provide that certain remedies may be applied for by motion.

Barns & Mattis, 1962 Amendments to the Florida Rules of Civil Procedure, 17 U.Miami L.Rev. 276, 291 (1963) (footnote omitted). See also 33 Fla.Jur.2d Judgments and Decrees § 352; Trawick, Florida Practice and Procedure § 26.8 (1982).

Under rule 1.540(b) as it is presently written, a party may, by motion, seek to set aside a final judgment, decree, order, or proceeding on numerous grounds not previously available, including intrinsic fraud. Where the basis of the motion is mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, intrinsic or extrinsic fraud, misrepresentation, or other misconduct of an adverse party, such motion must be made within a reasonable time and in no event more than one year from the entry of the final judgment. Prior to the adoption of rule 1.540(b), none of the stated grounds for a motion to set aside a judgment, with the exception of extrinsic fraud presented in an action in equity, could be used as the basis for seeking relief from a judgment. The writs of cor-am nobis and audita querela were available prior to the adoption of the rule, but for practical purposes these writs, because of their requirements, were not available for relief. The one-year limitations period of rule 1.540(b) does not apply where a judgment is void, where a judgment has been satisfied, released, or discharged, or where it is no longer equitable for a judgment to have prospective application. Further, the rule “does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order or proceeding or to set aside a judgment or decree for fraud on the court.” Therefore, the rule clearly preserves the equitable remedy of an independent action where extrinsic fraud is established.

Where relief from a judgment is sought by motion, “[t]he motion is filed in the action in which the judgment was rendered.” Trawick, Florida Practice and Procedure § 26.8 (1982). Where relief is sought by independent action, however, “[t]he action is not a continuation of the action in which the judgment ... under attack was entered. A new complaint is filed, service of process is made and the new action follows the same procedure as other civil actions.” Id.

For better understanding, the circumstances under which a judgment may be challenged are set forth as follows:

Within One Year under Rule 1.540(b)
1) Mistake, inadvertence, surprise, or excusable neglect.
2) Newly discovered evidence which could not have been discovered in time to move for a new trial.
3) Any type of fraud, misrepresentation, or other misconduct of an adverse party including intrinsic fraud which occurs during the proceeding such as false testimony.
No Time Limitation under Rule 1.540(b) or Independent Action
1) Where the judgment is void.
2) Where it can be established that the judgment has been satisfied, released, or discharged.
3) Where the judgment has prospective application and equity should now require relief from its present enforcement.
4) Extrinsic fraud which prevents a party from having an opportunity to present his case in court.

It should be clearly understood that rule 1.540(b) broadened the grounds upon which a final judgment could be attacked, but created a one-year limitations period within which such an attack must be made. The rule does not change the existing definitions of intrinsic and extrinsic fraud or change the type of conduct which constitutes fraud on the court.

Since the adoption of rule 1.540(b), all of the case law interpreting it concerns actions attacking a judgment more than one year old. In Alexander v. First National Bank, 275 So.2d 272 (Fla.4th DCA 1973), the original plaintiff in the case sought to enforce a final judgment of foreclosure and a deficiency judgment. Alexander, as original defendant, filed a counterclaim which alleged that in the prior action the plaintiff had misstated the amount of Alexander’s indebtedness. The counterclaim further alleged that the final judgment of foreclosure and the deficiency judgment were in error and that the plaintiff’s conduct was fraud on the court. The district court found that the misstatement of the indebtedness did not constitute fraud on the court and stated:

“Fraud on the court” is a somewhat elusive concept.... If it is given a broad application so as to comprehend any type of misrepresentation by a witness or party which induced an incorrect factual determination by the trier of fact, judgments would be subject to frequent attack by independent actions, and the time for such attacks would be limited only by laches. The policy of the law which favors the termination of litigation suggests that such a broad application of the concept is unwarranted. So too does the policy of Rule 1.540(b), RCP, which promotes non-appellate attacks on a final judgment by motion in the original action — not by independent actions.

275 So.2d at 274.

In Truitt v. Truitt, 383 So.2d 276 (Fla.5th DCA 1980), the wife brought suit more than two years after the entry of final judgment of dissolution on the grounds that her former husband had perjured himself in his deposition testimony. The district court concluded that the husband’s perjury in his deposition did not constitute fraud on the court and could not be the basis for setting aside the judgment. In August v. August, 350 So.2d 794 (Fla.3d DCA 1977), the wife filed a motion eighteen months after the entry of the final judgment of dissolution seeking to set aside the judgment on the grounds that her husband had concealed his assets and used duress and undue influence in obtaining a settlement from her. The district court held that the husband’s conduct did not constitute fraud on the court. In Erhardt v. Erhardt, 362 So.2d 70 (Fla.2d DCA 1978), review denied, 368 So.2d 1366 (Fla.1979), the husband filed a motion for relief from a final judgment of dissolution almost two years after its entry, alleging that the wife had fraudulently misrepresented the husband’s income in the dissolution proceeding. The district court affirmed the trial court’s holding that the wife’s conduct was not fraud on the court. And in Kimbrough v. McCranie, 325 So.2d 70 (Fla.1st DCA 1976), the district court held that allegations that the plaintiff had falsely stated in the trial the amount of damages he sustained did not constitute fraud on the court.

In the recent decision of Brown v. Brown, 432 So.2d 704 (Fla.3d DCA 1983), the Third District Court of Appeal extensively reviewed the history of rule 1.540(b) and the case law relating to attacks on final judgments. In its analysis, the Third District did not fully agree with the reasoning of the decisions in the cases discussed above. In Brown, the wife alleged that her husband had fraudulently induced her, as part of a property settlement agreement, to give him a note and mortgage in exchange for assets which the husband had allegedly over-valued. The wife filed a motion under rule 1.540(b) seeking relief from the final judgment. The trial court denied the motion because it was not filed within the one-year limitations period of the rule. The wife again challenged the final judgment of dissolution in a counterclaim to an action brought by her former husband to foreclose the mortgage given by her as part of the property settlement agreement. In Brown the district court found that rule 1.540(b) “permits an independent action to be relieved from a judgment upon allegations of extrinsic fraud or an independent action to set aside the judgment upon allegations of fraud upon the court.” 422 So.2d at 714. The Brown court then determined that, although the wife’s allegations did not show fraud upon the court, the allegations did establish extrinsic fraud which would allow relief outside the one-year limitations period.

Determining the conduct that constitutes intrinsic fraud, which requires action under the rule within one year of the entry of a final judgment, and the conduct that constitutes extrinsic fraud, for which an action may be brought at any time, is the critical issue in the instant case. The cases distinguish between false and misleading information being presented on an issue to be tried and conduct which prevents a party from trying the issue. When an issue is before a court for resolution, and the complaining party could have addressed the issue in the proceeding, such as attacking the false testimony or misrepresentation through cross examination and other evidence, then the improper conduct, even though it may be perjury, is intrinsic fraud and an attack on a final judgment based on such fraud must be made within one year of the entry of the judgment.

It is clear that the false financial affidavits submitted by the petitioner-husband were part of the record in this case. The issue of the husband’s net worth was, therefore, a matter before the court for resolution and could have been tried. There were multiple proceedings in this cause before and after the entry of the final judgment. In addition, the trial judge found that the respondent-wife had information which should have given her notice of the falsity of the husband’s financial information. In our view, this conduct is intrinsic fraud and the trial judge correctly determined that there was no fraud on the court in this case. To approve the asserted public policy decision expressed by the district court in this case would require a change in the definitions of intrinsic fraud and extrinsic fraud. The district court’s holding could not logically be restricted to false financial disclosures in dissolution proceedings. Such a holding would necessarily require an inclusion of false testimony given in affidavits, depositions, or at trial as fraud on the court. It would permit any final judgment to be attacked at any time if a party could allege that an intentional misrepresentation was made by affidavit, deposition, or testimony presented in the case. By so expanding the definition of fraud on the court, we would also be substantially expanding the grounds on which final judgments may be attacked. The Brown decision and the Fourth District’s decision in the instant case raise a major public policy question relating to how final judgments may be attacked and set aside. Public policy has always favored the termination of litigation after a party has had an opportunity for a trial and an appeal of the trial court’s judgment. Consequently, the grounds upon which a final judgment may be set aside, other than by appeal, are limited in order to allow the parties and the public to rely on duly entered final judgments. Rule 1.540(b) broadened the grounds upon which final judgments may be attacked but we do not find it appropriate to further broaden these grounds by decision of this court. If there is to be any change, it should be achieved through the rule-making process.

For the reasons expressed, we quash the decision of the district court of appeal and remand the case with directions to reinstate the judgment of the trial court. We also disapprove the Third District’s decision in Brown to the extent that it conflicts with our decision in the instant case.

It is so ordered.

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

ADKINS, J., concurs in result only.

       Rule 1.540(b) reads, in pertinent part, as follows:
      (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, decree, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment or decree is void; (5) the judgment or decree has been satisfied, released or discharged or a prior judgment or decree upon which it is based has been reversed or otherwise vacated or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, decree, order or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order or proceeding or to set aside a judgment or decree for fraud upon the court.


author: BOYD, Justice. OVERTON, Justice,

text:
    Fred Lyman BRUMBLEY, Appellant, v. STATE of Florida, Appellee.
    No. 56006.
    Supreme Court of Florida.
    June 14, 1984.
    Rehearing Denied Aug. 22, 1984.

      Carl S. McGinnes, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.

      Jim Smith, Atty. Gen., Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, and Doris E. Jenkins, Asst. Atty. Gen., Tallahassee, for appellee.
   BOYD, Justice.

Fred Lyman Brumbley brings this appeal from the judgment of the Circuit Court, Third Judicial Circuit, in Taylor County, adjudicating him guilty of first-degree murder and sentencing him to death. This Court has jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the conviction and remand for reconsideration of sentence.

The murder victim was Robert Clifton Rogers, who left his home in Thomasville, Georgia on the morning of July 20, 1976, and went to work in Tallahassee, Florida. He left his place of employment that afternoon but did not return to his home that day, nor did he ever return home or to his place of employment. In February, 1977, the skeletal remains of the deceased were discovered near a wayside park on U.S. Highway 98 in Taylor County, Florida, several miles west of Perry. The body was identified by testimony matching the dentures recovered at the scene with a chipped piece of denture supplied by the wife of the deceased. A fracture in a bone among the skeletal remains corresponded to a fracture revealed by the medical history of the deceased. A ring found among the skeletal remains was identified at trial by a friend who had given the ring to the deceased.

The state presented the testimony of Russell Lamar Smith. Smith testified that on the afternoon of July 20, 1976, he and appellant were hitchhiking in the Tallahassee area and were offered a ride by Rogers. Rogers was driving a 1969 Chevrolet Caprice, blue with a white top. According to Smith’s testimony, appellant got in the front seat and Smith got in the rear. Appellant displayed a pistol to Rogers and from that point on, appellant and Smith told Rogers where they wanted him to go.

Soon after the initial abduction, Smith took over operating the car while Rogers and appellant sat in the rear seat. Smith drove to an area south of Tallahassee where they went down a country lane and got out of the car. At this point Smith left Rogers and appellant, who was still holding the pistol, and took Rogers’ car to Wood-ville to purchase beer and gasoline. Smith then returned for the other two men, and they began driving again. Smith testified that as he drove he was trying to “think things out” pertaining to the situation that he, appellant, and their captive were in.

Eventually Smith drove the car down another dirt road to a clearing where the three men got out of the car to drink beer and “talk things over.” Smith and appellant told Rogers to go and sit down a short distance away from them so that they could discuss the problem of what to do with him. Then, with appellant still holding the gun, they robbed Rogers of his wallet, money, watch, ring, and belt.

The three men then got back in the car and traveled east on highway 98 toward Perry. They stopped at a roadside park west of Perry, the same one where the skeletal remains of the deceased were later found. Smith testified that Rogers at this point wanted to go to the bathroom but was too nervous to do so. The three men then climbed over a fence at the back of the wayside park and walked into the woods where again they sat down and talked. At trial Smith testified that at this point he took the gun and asked appellant to take the car and get more beer. When appellant returned, Smith got in the car and said, “Let’s go.” Rogers at this time was still beyond the fence, in the woods. When appellant asked Smith where Rogers was, Smith told him that Rogers had run away into the woods. Then, Smith testified, he and appellant departed the area in Rogers’ car. At this point in Smith’s testimony, the prosecuting attorney asked to address the court out of the hearing of the jury.

Smith was testifying as the state expected him to up until the point when he said that appellant had left the wayside park for the purpose of getting more beer. Based upon Smith’s pre-trial statements to law enforcement officers and prosecuting attorneys and in a defense deposition, the state expected him to testify that appellant shot Rogers behind the roadside park. So, the state asked that Smith be called as a witness by the court, arguing that because of the surprise change of testimony, the state no longer wanted to vouch for Smith’s credibility and wanted to be able to lead, cross-examine and impeach him. The court granted the request.

After being assured of use immunity by the state’s counsel, Smith testified as the court’s witness, saying that during appellant’s absence he, Smith, shot Rogers. Smith said that when appellant returned, Smith got in the car and they left, and that he told appellant that Rogers had escaped. Thus, according to Smith’s direct testimony appellant knew nothing about the murder. The state, over the defendant’s objection, then proceeded to impeach Smith by confronting him with his pre-trial statements to the effect that appellant had shot Rogers and asking him whether he remembered making the prior statements. In each instance Smith acknowledged that he had made the statements.

Appellant argues that it was improper to call Smith as the court’s witness and that it was improper to allow the state to impeach him by quoting from his pre-trial statements. Appellant also argues that without the improper use of the prior inconsistent statements as substantive evidence, there was insufficient evidence to support the verdict of guilt of murder in the first degree and that his motions for judgment of acquittal should therefore have been granted.

In addition to the evidence already mentioned, there was also testimony that during the period of July 23 to July 27, 1976, appellant and Smith were seen in possession of a 1969 blue and white Chevrolet automobile which the jury could have concluded was the one belonging to Rogers. The search of a motel room in Gainesville, Florida on July 27, 1976, at which time appellant and Smith were occupying the room, produced a .38 caliber revolver. A bullet found in the sand directly beneath the skeletal remains of the deceased, it was proved, could have been fired from the gun found in the motel room.

It is within the discretion of the court to call a witness as a court’s witness on motion of a party on the ground that the witness has become uncooperative, McCloud v. State, 335 So.2d 257 (Fla.1976), or because the moving party does not wish to vouch for the credibility of the witness, Enmund v. State, 399 So.2d 1362 (Fla. 1981), reversed on other grounds, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), or because the party previously calling the witness has been surprised at trial by the testimony given, Lowe v. State, 130 Fla. 835, 178 So. 872 (1937). Appellant argues, however, that what transpired at trial was improper and unfair. Appellant relies upon cases holding that it is improper to allow impeachment by prior inconsistent statements to be presented to the jury as substantive evidence. We conclude that what these authorities say is that a witness may not be impeached by prior inconsistent statements merely because the witness failed to provide the testimony the party calling him desired or expected. However, if the witness becomes adverse by providing testimony that is actually harmful to the interests of the party calling him, then impeachment by prior inconsistent statements is permissible. Hernandez v. State, 156 Fla. 356, 22 So.2d 781 (1945); Lowe v. State, 130 Fla. 835, 178 So. 872 (1937); Adams v. State, 34 Fla. 185, 15 So. 905 (1984); McCloud v. State, 354 So.2d 407 (Fla. 4th DCA), cert. dismissed, 358 So.2d 132 (Fla.1978); Williams v. State, 353 So.2d 956 (Fla. 1st DCA 1978); Pitts v. State, 333 So.2d 109 (Fla. 1st DCA 1976); Jones v. State, 273 So.2d 8 (Fla. 3d DCA 1973); Gibbs v. State, 193 So.2d 460 (Fla. 2d DCA 1967).

In the present case, after testifying as a witness for the state that he and appellant abducted and robbed Rogers and discussed what to do with him, Smith said that they abandoned him in ' the bushes behind the roadside park. At this point Smith had at least failed to give desired testimony. Claiming surprise, the state asked that Smith be called as a witness by the court so that the state could ask leading questions and cross-examine. As a witness for the court, Smith testified that he alone had killed Rogers. At this point Smith had clearly become an adverse witness and had given testimony that was harmful to the state’s case. While impeachment by prior statements is not proper when a witness merely fails to give the expected testimony, it is proper when the witness becomes adverse. Thus here it was not improper to allow the prosecutor to confront Smith with his prior statements. Nor was it improper for the state to impeach Smith by quoting the precise language of his prior statements. Such references were a correct method of laying a predicate for the introduction of the prior statements. Urga v. State, 104 So.2d 43 (Fla. 2d DCA 1958). Since Smith admitted making the statements, their introduction by independent testimony was unnecessary.

Appellant also argues that allowing the prosecutor to quote portions of Smith’s pretrial statement was improper in that the prosecutor was thereby able, under the guise of impeachment, to introduce Smith’s out-of-court declarations as evidence of the matters declared, i.e., as evidence that appellant shot Rogers, in violation of the rule laid down in Adams v. State and Lowe v. State. In this case, however, the court granted defense counsel’s request for a special instruction to the jury that prior inconsistent statements were only to be considered as being relevant to the credibility of the witness impeached and could not be taken as proof or evidence of the defendant’s guilt. The purpose of allowing evidence of prior inconsistent statements is to counteract the effect of testimony harmful to the interest of the impeaching party. Hernandez v. State. In Rankin v. State, 143 So.2d 193 (Fla. 1962), cited by appellant, the witnesses did not give testimony harmful to the state’s case, but merely failed to give desired testimony. The prior inconsistent statements were used not for impeachment but as substantive evidence of the matters contained therein and therefore were improper. See Pitts v. State; Sutton v. State, 239 So.2d 644 (Fla. 1st DCA 1970). The present case is very different in that Smith’s testimony was harmful to and contradicted what the state was trying to prove. We conclude that there was no error in allowing the state to impeach Smith’s credibility through prior inconsistent statements.

Appellant argues that his conviction rests upon the use of the impeachment evidence as substantive proof that he killed Rogers and that without it there is insufficient evidence to support the verdict of guilt of first-degree murder. It is clear, however, even without considering the pri- or statements to the effect that appellant shot Rogers, that the evidence supports the conviction on the theory of felony murder. Appellant was a principal and a direct, active participant in the robbery of Rogers. Appellant held the gun on him throughout most of the episode, including the point in time when he and Smith relieved Rogers of his valuables. Even if the jury believed Smith’s testimony that he shot Rogers and that appellant was not present when he did so, the jury could still have found that appellant was actually or constructively present, directly participating in or aiding and abetting the commission of the underlying felony of robbery. Since the robbery and subsequent flight from the scene resulted in or included murder, appellant, as a principal in the robbery, is guilty of first-degree murder. Enmund v. State, 399 So.2d 1362 (Fla.1981), reversed on other grounds, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); Adams v. State, 341 So.2d 765 (Fla.1976), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 158 (1977); Pope v. State, 84 Fla. 428, 94 So. 865 (1922).

We agree with appellant, however, that the evidence, exclusive of any substantive use of the prior inconsistent statements, does not support a finding that he shared in the “premeditated design to effect the death” of Clifton Rogers. § 782.-04(l)(a), Fla.Stat. (1975). The fact that Smith and appellant discussed killing Rogers and that later it was done by Smith is a circumstance that might tend to support the conclusion that appellant aided, abetted, counseled, hired, or otherwise procured the commission of the murder. If such fact is proven then the accused can be considered a principal of the first degree “whether he is or is not actually or constructively present at the commission of such offense.” § 777.011, Fla.Stat. (1975). Appellant’s shrugging of his shoulders when Smith suggested killing Rogers is another circumstance from which a premeditation concurrent with that of the actual perpetrator might be inferred. The prior inconsistent statements of Smith, properly understood as impeachment of his credibility, might also contribute factual inferences by persuading the jury to believe parts of Smith’s testimony, but to disbelieve other parts. But at best the factual inference that appellant shared in the premeditated design is supported purely by circumstantial evidence.

“When circumstantial evidence is relied upon to convict a person charged with a crime, the evidence must not only be consistent with the defendant’s guilt but must also be inconsistent with any reasonable hypothesis of his innocence.” Mayo v. State, 71 So.2d 899, 904 (Fla.1954). Under the evidence in this case, we cannot say that the circumstances, which were consistent with premeditation on the part of appellant, were also inconsistent with any reasonable hypothesis of lack of premeditation. We therefore conclude that appellant’s conviction for first-degree murder is grounded upon the felony murder statute.

Appellant argues that the trial court erred in admitting into evidence color photographs of the victim’s skeletal remains. We find that the photographs were relevant to corroborate testimony about the circumstances of the murder and the identity of the victim, and were therefore admissible. See Bauldree v. State, 284 So.2d 196 (Fla.1973); State v. Wright, 265 So.2d 361 (Fla.1972).

Appellant argues that the court erred in refusing to instruct the jury on second-degree felony murder. We disagree.

The statutory scheme does not allow for the conviction of second degree felony murder of either the one who kills or his co-felons who are present. Only an accessory before the fact who was not personally present during the commission of the underlying felony can be found guilty of second degree felony murder under the applicable statute.

State v. Jefferson, 347 So.2d 427, 429 (Fla.1977). Since there was no evidence that appellant was not present during the commission of the underlying felony, the court did not err in refusing to instruct the jury on second-degree felony murder.

Appellant also argues that the trial court erred in failing to instruct the jury on all the elements of the underlying felony of robbery. The state contends that because there was no request or objection pertaining to the instruction, the asserted error is non-reviewable. We will address appellant’s contention, however, because it goes to a matter concerning the fundamental fairness of the trial and therefore need not have been raised by a contemporaneous objection. State v. Jones, 377 So.2d 1163 (Fla.1979).

Where a murder defendant is prosecuted on alternate theories of premeditation and felony murder, there must be an instruction defining the underlying felony with sufficient definiteness to assure the defendant a fair trial. It is not necessary, however, to instruct on the elements of the underlying felony with the same particularity as would be required if the defendant were charged with the underlying felony. State v. Jones, 377 So.2d 1163 (Fla.1979); Vasil v. State, 374 So.2d 465 (Fla.1979), cert. denied, 446 U.S. 967, 100 S.Ct. 2945, 64 L.Ed.2d 826 (1980); Robles v. State, 188 So.2d 789 (Fla.1966). Our review of the record reveals that there was no reversible error in the jury instruction.

Appellant argues that the judgment and sentence are invalid because a prospective juror was improperly excused for cause based upon his views about capital punishment. The record shows, however, that the venireman in question held views which irrevocably committed him against any consideration of death as a possible punishment. See Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

Regarding sentence, appellant contends that it is constitutionally improper under the facts of this case to apply the death penalty to him. He relies upon Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and, by notice of supplemental authority, upon the recent decision in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).

We have already concluded that appellant’s conviction for first-degree murder rests upon the felony murder rule because the evidence was not sufficient to show that appellant joined in the intent of Smith to kill Rogers. In Enmund v. Florida, the United States Supreme Court held that the Eighth Amendment does not permit imposition of the death penalty on a person participating in a felony during which a murder is committed but who does not himself kill, attempt to kill, intend that a killing take place or intend or contemplate that lethal force will be used. 458 U.S. at 797, 102 S.Ct. at 3376. In the present case the trial court’s findings of fact in support of the sentence of death do not specifically discuss evidence of the extent of appellant’s involvement in the murder and the events leading up to the murder. Without such findings of fact by the trial court, we have no basis for concluding that appellant’s sentence of death meets the Enmund test. Therefore, it is necessary that the case be remanded to the trial court to consider whether the death penalty may be applied in this felony murder case.

Because we remand the case for further proceedings before the trial judge, sitting without a jury, on the matter of sentence, we need not address appellant’s numerous other contentions regarding the sentencing procedure and the sentence of death.

The judgment of conviction of murder in the first degree is affirmed. The sentence of death is vacated and the case is remanded to the trial court for a new non-jury proceeding on the question of an appropriate sentence under section 921.141, Florida Statutes (1975), taking into consideration the requirements of Enmund v. Florida.

It is so ordered.

ALDERMAN, C.J., and ADKINS and EHRLICH, JJ., concur.

OVERTON, J., dissents with an opinion in which McDONALD, J., concurs.

OVERTON, Justice,

dissenting.

I dissent from the majority opinion insofar as it permits the state to use a state witness’s prior inconsistent statements as substantive evidence of appellant’s guilt. The majority opinion essentially changes the established law concerning a party’s impeachment of its own witness and the subsequent use of prior inconsistent statements as substantive evidence.

Under the law of this state, it is clear that a codefendant’s prior inconsistent statements cannot be used as substantive evidence of a defendant’s guilt. See Rankin v. State, 143 So.2d 193 (Fla.1962); Adams v. State, 34 Fla. 185, 15 So. 905 (1894); Perry v. State, 356 So.2d 342 (Fla. 1st DCA), cert. denied, 364 So.2d 889 (Fla. 1978); Pitts v. State, 333 So.2d 109 (Fla. 1st DCA 1976).

The record clearly reflects that the code-fendant’s , prior inconsistent statements, which were read before the jury, were used by the prosecutor as substantive evidence to obtain appellant’s conviction. Such use was improper notwithstanding the supposedly curative instruction given to the jury that the statements were to be considered solely for the purpose of determining the credibility of the witness being impeached. I recognize that the codefendant’s testimony caught the state by surprise, but that does not allow the use of impeachment evidence as evidence in chief. To allow this evidence to be so used was error and was prejudicial to appellant in the trial of this cause. See Hall v. State, 381 So.2d 683 (Fla.1979).

I agree with the majority that there was sufficient competent evidence of appellant’s complicity in the robbery-murder, other than the impeachment evidence, upon which a jury could properly convict appellant. I conclude, however, that a new trial must be granted in order to eliminate the prejudicial effect of the inadmissible evidence.

McDONALD, J., concurs.


author: PER CURIAM.

text:
    Jimmy Lee SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 65561.
    Supreme Court of Florida.
    July 10, 1984.
    Sarah Bleakley of Spriggs & Warren, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This case is before us on appeal from a dismissal with prejudice of Smith’s second petition for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We also have before us a motion for stay of execution. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

We previously affirmed the imposition of the death penalty in Smith v. State, 407 So.2d 894 (Fla.1981), cert. denied 456 U.S. 984, 102 S.Ct. 2260, 72 L.Ed.2d 864 (1982), and the denial of Smith’s first petition for post-conviction relief in Smith v. State, 445 So.2d 323 (Fla.1983), cert. denied — U.S. —, 104 S.Ct. 2671, 81 L.Ed.2d 375 (1984) (Smith II). Smith also joined 122 others seeking relief from allegedly unconstitutional sentences of death, which claim was denied by Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981).

Smith presents six points in his second post-conviction petition. The trial court dismissed the petition “on grounds that this successive 3.850 motion is an abuse of the post-conviction process.” We agree. All of the six points raised by Smith are issues which were or could have been raised on direct appeal and are thus foreclosed from consideration under post-conviction relief. McRae v. State, 437 So.2d 1388 (Fla.1983).

Only two of Smith’s arguments merit comment. Smith urges that the trial court erred in ruling that successive post-conviction motions are, per se, an abuse of process. Smith has misread the trial court’s order which specifies that “this successive” (emphasis supplied) motion is an abuse of process. Smith also claims that certain psychiatric reports prepared on Smith when he was confined in a state juvenile facility were withheld by the state in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The state disclaims any knowledge of the existence or content of these reports. Smith’s argument is unpersuasive. The fact that Smith had been confined in a juvenile facility was a fact peculiarly within the knowledge of Smith and his trial counsel. Any alleged withholding of psychiatric reports concerning that detention could have and should have been raised at trial or on direct appeal. This is particularly true in this instance in light of the fact that Smith’s psychological condition was addressed at trial and on direct appeal. Smith does not now claim ineffective assistance of counsel but we note that such claim was made and rejected in his first motion for post-conviction relief and that the first motion included a Brady claim that the state withheld statements made by his mother which would have added evidence in mitigation. We rejected the Brady claim because of procedural irregularities but went on to note that the claim was without merit because “Brady requires that the defendant not be aware of the withheld evidence before or during trial” and the allegedly withheld evidence “was obviously available to the appellant and to the trial counsel insofar as it involves appellant’s own life story.” Smith II at 326. For the same reason we now reject Smith’s similar claim.

We find no error and affirm the order of the trial court dismissing Smith’s motion for post-conviction relief. The motion for stay of execution is denied.

It is so ordered.

BOYD, C.J., and OVERTON, ALDERMAN, McDonald, EHRLICH and SHAW, JJ., concur.


author: ALDERMAN, Justice.

text:
    STATE of Florida, Appellant, v. David Leroy WASHINGTON, Appellee.
    No. 65569.
    Supreme Court of Florida.
    July 10, 1984.

      Jim Smith, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., Miami, for appellant.
    Richard L. Jorandby, Public Defender and Richard H. Burr, III, Counsel to the Public Defender for the Fifteenth Judicial Circuit, West Palm Beach, for appellee.
   ALDERMAN, Justice.

The state moves for reversal of the order of the trial court granting David Leroy Washington’s motion to vacate his sentences of death. We reverse and hold that the trial court should have denied Washington’s motion to vacate. We also vacate the stay of execution granted by the trial court.

Washington pleaded guilty to three first-degree murder charges, was convicted, and received three separate death sentences. He expressly waived his right to a jury during the sentencing phase of the trial. Upon appeal, we affirmed the judgments of guilty and the death sentences. Washington v. State, 362 So.2d 658 (Fla.1978). The Supreme Court of the United States denied certiorari. Washington v. Florida, 441 U.S. 937, 99 S.Ct. 2063, 60 L.Ed.2d 666 (1979).

He subsequently filed a motion for post-conviction relief in 1981 in which he raised fourteen asserted trial court errors or constitutional defects, including a multitude of challenges to Florida’s death penalty statute. The trial court denied his motion and denied his motion for stay of execution. Finding no merit to any of Washington’s arguments, we affirmed the denial of relief under rule 3.850. Washington v. State, 397 So.2d 285 (Fla.1981). Washington subsequently filed a petition for writ of habeas corpus in the United States District Court, Southern District, which, after an eviden-tiary hearing, denied his petition.

Unit B of the former United States Court of Appeals for the Fifth Circuit, now the Eleventh Circuit, reversed the judgment of the district court and remanded for new factfindings under the new standards it announced for analyzing ineffective assistance of counsel claims. Washington v. Strickland, 693 F.2d 1243 (5th Cir.1982). The Supreme Court of the United States granted certiorari, reversed the circuit court of appeals, and held that the district court had properly declined to issue a writ of habeas corpus. Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

A third death warrant for Washington was signed by the Governor of Florida on June 15, 1984. On July 6, 1984, Washington filed a successive motion for post-conviction relief in the trial court. He contended that the death penalty has been imposed in an arbitrary and discriminatory manner during the period of time in which he was sentenced to death and that he was denied his right not to be subjected to cruel and unusual punishment by the prosecutor’s closing argument in his sentencing trial. As to this second point, Washington contended that although the judge who sentenced him could have based the death sentences upon constitutionally permissible, relevant, aggravating factors, the prosecutor’s argument created a great risk that the death sentences imposed were based as well on sympathy for the victims and the victims’ social values. The trial court granted Washington’s motion for stay of execution pending determination of this motion to vacate and held its ruling on this motion in abeyance pending the en banc outcome of Moore v. Zant, 722 F.2d 640 (11th Cir.1983).

The state applied for a writ of prohibition to this Court, asking this Court to vacate the stay, and alleged that the trial court acted outside its jurisdiction in granting a stay solely on the ground that a case which the trial court believed controlling on the second issue was pending in the United States Court of Appeals for the Eleventh Circuit (en banc). The state maintained that the issues presented in Washington’s successive motion to vacate are repetitive and constitute an abuse of rule 3.850 because they either could have been raised previously or were in material part previously raised and rejected. Therefore, the state argued that these claims are barred from consideration in a successive motion and are beyond the jurisdiction of the circuit court for further review.

We treated the petition for writ of prohibition as a petition for writ of mandamus and entered an order on July 9, 1984, directing the trial court to rule on the 3.850 motion. The trial court then entered its order. It summarily denied the first claim asserted by Washington that the death penalty has been imposed in Florida in an arbitrary, discriminatory manner.

The trial court, however, granted the motion to vacate, premised upon the second ground raised by Washington in his motion to vacate. The trial court ruled that there was no “waiver” bar to Washington’s assertion of this claim. The trial court relied upon Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), to find that there was a fundamental change of constitutional law. The change the court found is the articulation by the Supreme Court of the right of a defendant to “an individualized determination on the basis of the character of the individual and the circumstances of the crime.” Although Zant v. Stephens did not deal with the precise issue now presented to the trial court, the trial court relied upon Judge Kravitch’s dissent in Moore v. Zant to buttress its extension of Stephens to the facts of the present ease.

As acknowledged by Washington and recognized by the trial court, we have recently rejected claims that Florida’s death penalty is imposed in an arbitrary and discriminatory manner. Jackson v. State, 452 So.2d 533 (Fla.1984); Ford v. Wainwright, 451 So.2d 471 (Fla.1984); Adams v. State, 449 So.2d 819 (Fla.1984); Sullivan v. State, 441 So.2d 609 (Fla.1983). The Supreme Court of the United States in Sullivan v. Wainwright, — U.S. —, 104 S.Ct. 450, 78 L.Ed.2d 210 (1983), agreed that the statistical evidence of discrimination in Florida was insufficient to show that the Florida system is unconstitutionally discriminatory. See also Wainwright v. Ford, — U.S. —, 104 S.Ct. 3498, 81 L.Ed.2d — (1984); Wainwright v. Ad ams, — U.S. —, 104 S.Ct. 2183, 80 L.Ed.2d 809 (1984). This basis for relief alleged by Washington was properly denied by the trial court.

The issue of prosecutorial comment upon which the trial court based its reversal was a matter which should have been raised at Washington’s sentencing hearing and then on direct appeal and cannot now be raised in a rule 3.850 motion. There has been no fundamental constitutional change in the law as contemplated by Witt v. State, 387 So.2d 922 (Fla.1980), which would permit Washington’s collateral attack on his sentences. The trial court erred in finding that Washington was not barred from raising this prosecutorial argument claim in his motion to vacate. The right to “an individualized determination on the basis of the character of the individual and the circumstances of the crime,” Zant v. Stephens, 103 S.Ct. at 2744, is not a change in the law. We consistently have adhered to this principle in death penalty cases in Florida.

Furthermore, the pendency of a case in the United States Circuit Court of Appeals for the Eleventh Circuit involving a habeas corpus action brought in a Georgia death penalty case does not meet the standard we announced in Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 So.2d 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980). In Witt, we reiterated our adherence to the very limited role for post-conviction proceedings even in death penalty cases. We emphasized that only major constitutional changes of law which constitute a development of fundamental significance, such as in Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), may be raised for the first time under rule 3.850. We held that evolutionary refinements in the criminal law, affording new or different standards for admissibility of evidence, for procedural fairness, for proportionality review of capital cases and other like matters do not compel abridgment of the finality of judgments and are not cognizable under rule 3.850. We also expressly held that only this Court and the Supreme Court of the United States could adopt a change of law sufficient to precipitate a post-conviction challenge to a final conviction and sentence.

On the face of the motion to vacate, Washington’s claims are without merit. The trial court should have denied the motion.

Accordingly, we reverse the order of the trial court and vacate the order staying Washington’s execution.

No petition for rehearing will be entertained by this Court.

It is so ordered.

BOYD, C.J., and OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Pierce J. GUARD, Jr., Respondent.
    Nos. 60404, 60749 and 61648.
    Supreme Court of Florida.
    July 12, 1984.

      John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and David G. McGunegle, Bar Counsel, Orlando, for complainant.
    Pierce J. Guard, Jr., in pro. per.
   PER CURIAM.

This disciplinary proceeding is before the Court upon the complaint of The Florida Bar, the report of the referee, the petition of The Florida Bar, and cross petition of respondent Pierce J. Guard, Jr. for review. We have jurisdiction. Art. V, 15, Fla. Const.

These proceedings were instituted on March 25, 1981, by the Bar’s filing of a complaint against respondent in five counts alleging numerous violations of the Code of Professional Responsibility. On June 10, 1981, the Bar filed a second complaint in four counts alleging additional violations of the code by respondent. Circuit Judge Arden M. Merckle was appointed as referee to hear these complaints on July 1, 1981. Hearings were held by the referee on September 17, 1981. Subsequently, on January 29, 1982, the Bar filed an additional complaint in one count which, on February 10, 1982, Judge Merckle was appointed to hear. The referee submitted his consolidated report on July 15, 1983, finding respondent guilty on eight of the ten counts. The referee recommended that respondent be suspended for thirty days with automatic reinstatement, followed by a three-year probationary period under the supervision of another Bar member. The referee also recommended that respondent be required to pay back the fees and costs paid over to him by the clients in the counts for which respondent was found guilty. The Bar petitioned for review of the referee’s recommended punishment on the ground it was inadequate and urged instead that respondent be suspended for one year with proof of rehabilitation required prior to reinstatement. Respondent cross petitions urging that the referee’s findings and recommendations of guilt are contrary to the law and evidence. Respondent also urges that the inordinate delay by the referee in hearing the complaints and in rendering his report have denied him due process by punishing him prior to judgment.

We first address respondent’s cross petition. Respondent has not met his burden of showing that the referee’s findings are erroneous. There was sufficient evidence before the referee to support his findings and recommendations of guilt. Florida Bar v. Baron, 392 So.2d 1318 (Fla.1981). We approve the referee’s report in this regard.

We next address the issue of the referee’s delay in hearing the charges and rendering his report. In respondent’s view the extended period during which these charges were pending has disrupted his professional and personal life and served to punish him without due process. Respondent urges this delay as a reason for dismissing the complaints. Petitioner concedes there was excessive delay on the part of the referee, which might be considered in mitigation, but disagrees that the delay was so egregious as to warrant dismissal of the complaints. We agree with the Bar. Dismissal of the complaints would totally frustrate the primary purpose of discipline, namely, protection of the public from the misconduct of attorneys. We are satisfied that we can make clear to referees our dissatisfaction with dilatory hearings of discipline cases short of dismissing the complaints.

We turn then to petitioner’s argument that respondent should be suspended for one year in lieu of the referee’s recommended discipline. We note, first, that by separate action respondent has been placed on probation under supervision for two years because of other violations of the code. Had the referee promptly conducted the hearings and submitted his report expeditiously, there would be little doubt as to the correctness of the Bar’s recommended punishment. Respondent urges that since these proceedings began he has restored order to his professional life by obtaining employment with another firm and conducting himself impeccably. We are not able to confirm this on the basis of the record before us and, contrary to respondent’s urging, are not of a mind to remand the report for additional findings. Under the circumstances, we adopt the recommendations of the referee that respondent: (1) be suspended for a period of thirty days from the practice of law with automatic reinstatement, (2) that after reinstatement, respondent be placed on probation for a period of three years, during which time his work shall be supervised by a member of the Bar, and (3) as a condition of probation, that respondent pay back within six months all fees and costs advanced to him for his representation in the counts for which he has been found guilty. The respondent’s three-year period of probation, when commenced, will run concurrently with the remainder of the two-year period of probation imposed by Florida Bar v. Guard, 448 So.2d 981 (Fla.1984). The suspension shall be effective August 13, 1984, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that respondent shall not accept any new business. We also assess against respondent the costs of these proceedings in the amount of $2,910.91.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD and SHAW, JJ., concur.

EHRLICH, J., concurs in part and dissents in part.


author: OVERTON, Justice

text:
    James A. MORGAN, Appellant v. STATE of Florida, Appellee.
    No. 61577.
    Supreme Court of Florida.
    July 12, 1984.

      Michael Salnick and Richard W. Springer of Kohl, Springer, Springer, Mighdoll & Salnick, Palm Springs, for appellant.
    Jim Smith, Atty. Gen., and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   OVERTON, Justice

The appellant, James A. Morgan, was convicted of first-degree murder. The trial judge imposed the death sentence in accordance with the jury’s advisory sentence recommendation. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and we vacate appellant’s conviction and sentence and remand for a new trial. We find that the trial court erred in prohibiting appellant from presenting the insanity defense.

Appellant was indicted on September 23, 1977 for the first-degree murder of Gertrude Trbovich. At the time of his indictment, appellant was sixteen years old. This is the second time appellant has been before this court for this crime. Following appellant’s first trial, this Court reversed his conviction and sentence of death because the procedure set out in section 918.-017(1), Florida Statutes (1977), requiring bifurcation of trials when insanity was asserted, had been declared unconstitutional while Morgan’s appeal was pending. Morgan v. State, 392 So.2d 1315 (Fla.1981). This Court, in remanding appellant’s case for a new trial, directed the trial court’s attention to Lane v. State, 388 So.2d 1022 (Fla.1980), regarding the trial court’s responsibility, pursuant to decisions of the United States Supreme Court, to conduct a competency hearing, whether requested or not, “if there are reasonable grounds to believe that the defendant is not competent to stand trial.” Id. at 1025.

The primary issue in this appeal concerns the trial court’s refusal to permit appellant to raise the insanity defense. It should be noted that three judges presided at different times in the proceedings below. The record reflects the following facts. On July 10, 1981, the state moved to compel disclosure of appellant’s intent to rely on the insanity defense. In a hearing on the motion conducted on July 17, 1981, it was agreed by the parties and ordered by the court that appellant would provide written notice to the state of his intent to rely on the insanity defense by August 15, 1981. On August 14, 1981, appellant’s counsel moved for an extension of time to comply with the order of July 17. The record reflects that the next action on the motion occurred at a hearing before a second judge on September 17, 1981. At this hearing the state contended that the time for notice of appellant’s intent to rely on the insanity defense had passed and that appellant should be precluded from raising the defense for failing to comply with the order of July 17. An assistant public defender who was not directly handling appellant’s case told the court that the public defender in charge of appellant’s defense indicated that the insanity defense would not be relied on. The assistant public defender also stated, however, that the public defender in charge of the case was having doctors examine appellant to determine whether appellant was insane at the time of the crime. The court then ruled in favor of the state, concluding that the insanity defense would not be an allowable defense because of the failure to file a notice of intent to rely on the defense. The court also ruled that any other motions in the case had to be filed by September 23, 1981. At this point, appellant’s trial was scheduled for October 12, 1981.

On September 28, 1981, appellant moved to disqualify the judge assigned to preside over his trial, contending that the judge had been quoted in the press as saying that he did not understand this Court’s logic in reversing appellant’s first conviction and sentence. On September 30, 1981, the trial judge recused himself and a third judge was assigned to appellant’s case.

Also on September 28, 1981, appellant’s counsel filed a motion for leave to file additional motions. In this motion, counsel noted that numerous motions had been filed prior to the September 23 deadline set by the court and that appellant had additional motions which could not be filed before the deadline. These additional motions included a motion for continuance and a motion to reopen the insanity defense. On October 1, 1981, the court entered an order continuing appellant’s trial from October 12 to November 23, 1981.

On November 9, 1981, appellant’s counsel filed a notice of intent to rely on the insanity defense. A statement of particulars accompanied the notice. In a hearing before the newly assigned trial judge on that same date, appellant’s counsel explained that after the previous judge entered his order precluding the insanity defense on September 17, additional information regarding appellant’s sanity at the time of the offense was obtained. On the basis of this evidence, counsel stated, it was determined that the insanity defense would be raised at trial and notice of intent to rely on the defense with a statement of particulars was then given. Appellant’s motion to reopen the insanity defense was denied.

On November 23, 1981, when appellant’s trial began, appellant’s counsel renewed the previous motions regarding the raising of the insanity defense. This motion was denied. A conference was held in the presiding judge’s chambers on November 30. At that time, appellant’s counsel requested that when the state presented its case that the appellant be allowed to make an oral proffer as to what appellant’s witnesses would testify to regarding the insanity defense. The request to make an oral proffer was denied. Appellant’s counsel then asked whether he could “at least submit ... a written report of the doctors or a written statement as to what the defense of insanity would be in this case.” The judge replied, “Well, as far as appeals is concerned, you can do anything you want, but the issue has been decided for this trial.”

On December 2, 1981, appellant’s counsel filed a written proffer regarding the insanity defense. In the proffer counsel identified a neuro-psychiatrist and a forensic psychiatrist who would have testified that, based upon their examinations of the appellant, he was insane at the time of the offense.

Appellant contends that he was deprived of his sixth amendment right to the compulsory process of witnesses and his right to present a defense when he was precluded by the trial court from asserting the insanity defense. The state argues that the trial court’s preclusion of the insanity defense was harmless error because appellant would not have been able to prove beyond a reasonable doubt that he was insane at the time of the crime. We find that the state’s argument fails to consider appellant’s due process rights and is without merit.

Our decision here is controlled by our decision in Jones v. State, 362 So.2d 1334 (Fla.1978). In Jones, we addressed the issue of whether the trial court erred in refusing to grant Jones a psychiatric examination, to determine whether he was sane at the time of the crime, because the motion seeking the examination was not properly filed. We held that under the facts of that case Jones was not required to show good cause for the failure to properly file the motion for an examination. Consistent with the United States Supreme Court’s mandate in Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), we found that the trial court erred in denying Jones’s motion for examination and concluded that “[i]n effect, the court eliminated appellant’s [Jones’s] sole defense.” 362 So.2d at 1336. In Jones, we expressly held that where a request has been made for a psychiatric examination to determine whether a defendant was sane at the time of the crime, the trial court should order an examination unless clearly convinced that it is unnecessary.

We find that there is nothing in this record to justify the trial court’s refusal to allow appellant to raise the insanity defense. The record in this case establishes a clear due process violation under both the federal and state constitutions. Further, the trial court did not even afford appellant an opportunity to show good cause for the delay in preparing the defense. Although not controlling in our decision, it is interesting to note that the insanity defense was raised at appellant’s first trial. The state was, therefore, on notice that appellant might raise the defense at his second trial. The fact that appellant had formed the basis for his defense is shown by his actions before trial, at trial, and finally by the written proffer showing that he had expert witnesses who would testify that appellant was incompetent at the time of the offense. Further, appellant’s trial was continued from October 12, 1981, to November 23, 1981, giving all parties additional time to prepare for trial. It is clear that appellant was denied a reasonable opportunity to present witnesses at his trial. The jury may not have accepted the testimony of these witnesses, but a defendant must be afforded an opportunity to present available defenses and witnesses in support of those defenses.

Because of our conclusion that the trial court erred in precluding appellant from raising the insanity defense and that appellant is entitled to a new trial, it is unnecessary for us to consider the other issues raised by appellant. We do, however, note that the trial court’s sentencing order was not in conformance with the standards set by this Court for sentencing orders in death penalty cases. In Mann v. State, 420 So.2d 578, 581 (Fla.1982), we stated that “[t]he trial judge’s findings in regard to the death sentence should be of unmistakable clarity so that we can properly review them and not speculate as to what he found....” The sentencing order in this case did not meet this standard.

For the reasons expressed, we vacate appellant’s conviction and sentence and remand for a new trial.

,It is so ordered.

BOYD, C.J., and ALDERMAN, MCDONALD, EHRLICH and SHAW, JJ., concur. ADKINS, J., dissents.